238 Ill. 521 | Ill. | 1909
delivered the opinion of the court:
The main contention of appellants is that they were not served with notice at any stage of the proceedings, and not having entered their appearance the court had no jurisdiction over the town of Joliet, either in the organization of the district or in confirming the assessment roll. As we understand the record, it is not contended that there is anything to show that the court had jurisdiction of the town except by the orders heretofore set forth in the statement. This action is collateral to the proceedings in the county-court as to this assessment, and no objections can be urged here except such as question the jurisdiction of that court. (Highways Comrs. v. Drainage District, 207 Ill. 17.) In the exercise of a special and statutory power conferred upon the county court it is necessary that its jurisdiction shall appear in some way upon the face of its proceedings. (Cobe v. Guyer, 237 Ill. 516; Illinois Central Railroad Co. v. People, 189 id. 119.) Where a decree or judgment order attacked in the collateral proceedings finds that the parties have been duly notified, such finding; like any other judicial determination, cannot be contradicted, varied or explained by parol or other evidence beyond or outside of the record itself. (Stack v. People, 217 Ill. 220; Reedy v. Camfield, 159 id. 254; Harris v. Lester, 80 id. 307; Hertig v. People, 159 id. 237; Casey v. People, 165 id. 49; Pipher v. People, 183 id. 436; Fiske v. People, 188 id. 206; People v. Illinois Central Railroad Co. 213 id. 367.) If the notice be given by publication, a publisher’s certificate contrary to the finding that due notice has been given will not defeat such finding, because the court may have based it on other evidence as to notice; but the service of summons can only be shown by the officer’s return, and hence, when it contradicts a finding of the court that due service has been had, it will overcome the finding and prove the want of jurisdiction, even in a collateral proceeding. Reedy v. Camfield, supra; Illinois Central Railroad Co. v. People, supra.
As we have seen, there are no notices in the record showing that the town of Joliet was notified of the filing of the petition for the organization of the district under section 3 of the Levee act nor of the filing of the report of the commissioners under section 13 of said act, but as said orders of March 20, -1903, and October 26, 1903, state that due notice had been given according to law and that the court had jurisdiction of the parties and the subject matter such findings cannot be contradicted by parol, and as there is nothing in the record that in any way conflicts with these findings it must be held that the district was duly organized, and the report of the commissioners, in accordanee with said sections g to 14, inclusive, of said Levee act, duly confirmed. The order, however, of July 29, 1904, confirming the assessment roll as to benefits by the county court does not recite any jurisdictional facts, and as no notice of any kind is found in the record indicating that any notice was served on the appellants, the jurisdiction of the county court to enter such order does not appear on the face of the proceedings, hence it cannot be presumed that the county court had such jurisdiction of appellants as authorized that court to enter a judgment of confirmation on said assessment roll against the town of Joliet. This being so, the circuit court erred in entering judgment herein in accordance with the prayer of the petition.
Certain other questions raised in these proceedings should be passed on for guidance in any further action that it may be necessary to take in this matter.
The contention that the tax ordered to be levied is for extraordinary expenditures and not for the ordinary maintenance of roads and bridges, and that, therefore, the highway commissioners cannot levy such tax without the consent of the town auditors and assessor, has been passed upon ■ adversely to the contention of appellants by this court in Commissioners of Highways v. Drainage District, supra, and People v. Nortrup, 232 Ill. 303.
The further contention that the present drainage commissioners were never legally appointed after the organization of the district, and are, at most, merely de facto officers, and hence have no right to compel the payment of taxes to themselves, cannot be upheld. The money is not to be paid to them individually, but to the Spring Creek Drainage District, hence People v. Weber, 86 Ill. 283, and other cases of like import, are not in point on this question.
The question as to the qualifications of the drainage commissioners to spread the assessment has been fully discussed in Commissioners of Drainage District v. Smith, 233 Ill. 417; and as to their right to act in place of a jury in assessing benefits, see Juvinall v. Jamesburg Drainage District, 204 Ill. 106, and City of Joliet v. Spring Creek Drainage District, 222 id. 441.
The necessary and essential facts to show jurisdiction of the county court to enter the judgment of confirmation not appearing on the face of the record of that court, the judgment of the circuit court in this case will be reversed and the cause remanded.
D , , Reversed and remanded.