Badger v. Inlet Drainage District

31 N.E. 170, 141 Ill. 540

Opinion

Mr. Justice Soholfield

delivered the opinion of the Court:

Inlet drainage district was organized pursuant to the pro- _ visions of “An act to provide for the construction, reparation and protection of drains, ditches and levees across the lands of others, for agricultural, sanitary and mining purposes, and to provide for the organization of drainage districts,” approved and in force May 29, 1879. (Laws of 1879, p. 120.) Assessments were made and confirmed in November, 1879, as provided by the act. Afterwards, on the 1st of June, 1882, the commissioners of the district made an agreement with Henry E. Badger and Warren H. Badger, doing business under the firm name of H. E. Badger & Son, whereby the latter agreed to remove their dam across Inlet creek, and also the mason work, stone abutments and flume in connection with the dam, and in consideration thereof the commissioners agreed to pay them $1700, and to levy an assessment upon the lands in the drainage district to make the payment, and the commissioners thereupon, because of such agreement, drew and delivered to H. E. Badger & Son seventeen orders, of $100 each, on the treasurer of the district. H. E. Badger & Son removed the dam and other obstructions as the agreement required. In March, 1883, the commissioners made an assessment on the lands of the district for $1700, to pay for removing the dam, etc., but the collection of this was enjoined at the instance of one of the land owners within the district, and no other money was ever levied upon the lands of the -district for that purpose. The orders were presented to the treasurer of the district and payment demanded, which was . .refused, because there, was no money in his hands belonging to the district. The present suit was then brought upon the orders against the drainage district. By agreement of parties the cause was tried by the court without the intervention of a jury, and judgment was rendered by the court in favor of the -defendant.

The question presented for our consideration arises on rulings of the circuit court, in which that court refused to hold that the orders are valid charges upon the lands of the district. Although we have held that a drainage district is to be classed as a municipal corporation, (Commissioners v. Kelsey, 120 Ill. 482,) yet we have also held that such a district is organized merely for a special and limited purpose; that its powers are restricted to such as the legislature has deemed essential for the accomplishment of such purpose, and that it is only authorized to raise funds for the specific object for which it is formed, and that it can do that in no other mode than by special assessments upon the property benefited, which can in no ease exceed the benefits to the lands assessed. (Elmore v. Drainage Comrs. 135 Ill. 277.) So, also, we have held, where the statute prescribes a mode and purpose of municipal taxation, it must be pursued. No other mode or purpose can "be substituted by those who exercise the power. Webster v. The People, 98 Ill. 343.

By section 9 of the act under which appellee is organized, the commissioners are required to determine, among other things, “the probable cost of the proposed work, including all incidental expenses, and the cost of the proceeding therefor, ” and it is provided by section 11, that “if the commissioners shall find that the proposed work, or such portion of the same as will be satisfactory to the petitioners, can be done at a cost and expense not exceeding such benefits, they shall proceed to have the proper surveys, profiles, plans and specifications thereof made, and shall report their conclusions, and a copy of such surveys, profiles, plans and specifications, to the court which appointed them.” Section 13 requires notice to be given to those interested of the filing of the report, and upon the day when application is made to confirm the report they are authorized to “appear and contest the confirmation thereof, or show that the same ought to be modified in any particular, and may offer any competent evidence in support thereof.” Under this, every property owner is entitled to be heard on every material question affecting the character of the improvement and its cost. And it is further provided in section 18, that the jury, in assessing damages and benefits to result from the improvement, “shall award and assess the damages and benefits in favor of and against each tract separately, in the proportion in which such tract of land will be damaged or benefited; and in no case shall any tract of land be assessed for benefits in a greater amount than its proportionate share of the estimated cost of the work and expenses of the proceeding, nor in a greater amount than it will be benefited by the proposed work, according to the best judgment of the jury.” The action of the jury in this respect may be contested by the land owners affected, and an appeal is allowed therefrom. See secs. 20, 21, 23.

It is manifest that it is indispensable to the determination of the questions of damages and benefits to different tracts of land, and proportioning them upon the different tracts in the district, that every fact materially affecting the extent and character of the improvement, and a reasonable approximation of the cost of the improvement, shall be then before the jury. It is quite probable that it was not contemplated that the power of the commissioners to make an assessment would, be exhausted by the first 'assessment, but the statute will b& searched in vain for authority for the commissioners to do any act materially affecting the character or extent or cost of the improvement, as to which there is not provided there shall be notice to the land owners affected, and opportunity for them to be heard. It is provided in section 28, that “upon the organization of said drainage district the commissioners SO' appointed shall, from thenceforth, have power to contract and be contracted with, sue and be sued, plead and be impleaded,, and do and perform, in the corporate name of said district,, all such acts and things as may be necessary for the accomplishment of the purposes of this act.” But this is to be construed in connection with the preceding sections, so as to-give effect to each, and when this is done, it will be seen that it is not a modification of the preceding restrictions upon the power to contract, but simply a grant of power to contract in subordination thereto. It is also provided in section 36, that “the commissioners, when qualified in pursuance of this act, may do any and all acts that may be necessary in and about the surveying, laying out, constructing, repairing, altering, enlarging, cleaning, protecting and maintaining any drain, ditch, levee or other work for which they shall have been appointed, including all -necessary bridges, crossings, embankments, protections, dams and side-drains, clearing out and removing of obstructions from natural or artificial channels or streams within or beyond the limits of the drainage district, procuring or purchasing riparian rights and water powers by agreement with the owners thereof, and may use any money in their hands arising from assessments for that purpose.” But since all this may be done under the general power to contract, it can not be held as an enlargement of the powers granted by section 28, and must therefore be held to be an additional limitation or restriction on those powers, and the meaning would therefore have been precisely the same, and more obvious, if the phraseology had been that, the commissioners “may use any money in their hands arising from assessments,” for these purposes, repeating them after instead of before this language. It is still further manifest that this section is but an additional limitation or restriction, and not an enlargement, of the powers intended to be conferred by section 28, by the provisos which follow the language quoted, requiring public lettings in certain cases to the lowest bidder, prohibiting the commissioners from being interested in the contracts, and protecting water-courses, etc., from injury by the improvement. Power is given the commissioners in section 38 to borrow money, but it is expressly limited to not exceed the amount of assessment unpaid at the time of the borrowing, and its payment is secured only by making it a lien upon the assessment; and by section 39, “all damages over and above the benefits to any tract of land shall be payable out of the amounts assessed against other lands for benefits.”

It results that; in our opinion, when this drainage district was first organized there was no power in the commissioners to contract for the removal of the dam, etc., of the appellants, and that before the commissioners could make any contract in that respect they must present to the court appointing them a report recommending the enlargement of the improvement for which they were previously appointed, accompanied by plans, profiles and an estimate of costs, including the removal of the dam, etc., and afford to the land owner of the district an opportunity to be heard upon the question of confirming such report. This is expressly required by section 37 of the amendatory act, approved June 30, 1885, (Laws of 1885, p. 124,) and under the prior act there is, as has been seen, no authority otherwise for enlarging the enterprise, or including other and different work than that specified in the report and accompanying plans, profiles and estimates, upon which the district was organized in the first instance.

There was evidence showing that the commissioners had availed of the removal of the dam, etc., and it is contended this estops them to deny the validity of the contract for its removal, and East St. Louis v. East St. Louis Gaslight and Coke Co. 98 Ill. 415, is relied on in support of that contention. It was held in that case, that where the contract of a municipal corporation has no element of illegality, the objection made to it only alleging a defect of power in respect to the terms of its duration, the doctrine that where a corporation has received benefits under a contract which is merely ultra vires it shall pay for those benefits, should apply to the municipal corporation with equal force as in any case of a private corporation. But in such cases there is power to do the particular thing, only it is not authorized to be done in the way it is done. The doing of the thing in a proper way is a legitimate charge upon the revenues of the municipality, and so when it is done, and is accepted and enjoyed by the municipality, the municipality gets what it had authority to get in a different way, and it should therefore pay for it what it would have had to pay had it got it in the right way. In the present case, however, if we are right in the views we have expressed, there was no power in the commissioners to do the particular thing,—namely, remove the dam, abutments, etc., —for the reason that the powers of the commissioners are limited to the work described in their report and accompanying plans and profiles, etc., and that work is not within the description therein. Moreover, to entitle appellants to a judgment, it must appear that they have a legal claim, not merely as against the commissioners, but as against the real estate within the district benefited by the improvement, for if judgment be rendered it can only be satisfied by a special assessment upon that property. It can not, therefore, be conclusive as to the right of appellants to -recover, merely to show that the commissioners, as individuals, have done or said that which admits the right of appellants, for they can not, by their acts and conduct, enlarge their powers over the property within the district without the knowledge and consent, express or implied, of the owners of that property. Schaeffer et al. v. Bonham et al. 95 Ill. 368; Bigelow on Estoppel, (5th ed.) 466, 467, and authorities cited in notes 1 and 2. And therefore, although the property owners of the district are not parties to the suit, yet, because there can be no judgment unless it can be enforced against their property, it must follow that unless they are estopped to deny appellants’ right, the commissioners can not, in suits like the present, be estopped to do so. The evidence in the record is insufficient to prove an estoppel as to the owners of real estate within the district benefited by the improvement, and, indeed, there does not seem to have been any effort upon the trial to make such proof.

The judgment is affirmed.

Judgment affirmed.