Brooks v. Hatch

103 N.E. 745, 261 Ill. 179, 1913 Ill. LEXIS 2195

Opinion

Mr. Chiee Justice Cooke

delivered the opinion of the court":

The McGee Creek Levee and Drainage District was organized in the county court of Pike county September 11, 1905, under the statute commonly known as the Levee act. The necessary improvements, including a pumping plant, were thereafter constructed at a cost of $190,000. On September 10, 1912, the commissioners of the district filed their petition in the county court setting forth that these improvements did not properly drain a considerable portion of the district and other facts showing the necessity for further work and an additional pumping plant. The petition asked that an assessment of $60,000 be spread for the additional work required. Subsequently, on October 7, 1912, an amendment to the petition was filed, setting forth the necessity for annual assessments for maintaining, operating and keeping in repair the pumping plant already in operation and the additional pumping plant to be thereafter constructed. Objections were filed by appellants, who are land owners in the district, which were overruled. Judgment was entered levying a special assessment of $60,000 according to the prayer of the original petition, and an annual assessment of $11,000 was extended against the lands of the district for the purpose of maintaining and operating the pumping plant theretofore constructed and the one proposed to be constructed. This appeal was taken from that judgment.

These proceedings were had under an act approved May 13, 1905, as amended by an act approved May 20, 1907, and as further amended by an act approved June 7, 1911, and entitled, “An act to provide for the erection, maintenance and operation of pumping plants in certain drainage and levee districts and to legalize and validate former proceedings, bond issues, indebtedness and expenditures in regard to, on account of, or with a view to the erection, maintenance and operation of such pumping plants.” (Laws of 1905, p. 197; Laws of 1907, p. 283; Laws of 19x1, p. 297.) The validity of this act is questioned. It is contended that it is .not authorized-by the amendment to section 31 of article 4 of the constitution, adopted by vote of the people in 1878, and that it is also; in violation of section 13 of article 4 of the constitution, which provides that “no law shall be revived or amended by reference to its title only, but the law revived, or the section amended, shall be inserted at length in the new act.”

That part of the act as amended in 1911 which it is claimed is not authorized by said section 31 of article 4 of the constitution provides that one or more pumping plants may be erected, maintained and operated by the district with the approval of the county court. Said amendment to section 31 of article 4 of the constitution is as follows:

“Sec.-31. The General Assembly may pass laws permitting the owners of lands to construct drains, ditches and levees for agricultural, sanitary or mining purposes,, across the lands of others, and provide for the organization of drainage districts and vest the corporate authorities thereof, with power to construct and maintain levees, drains and ditches, and to keep in repair all drains, ditches and levees heretofore constructed under the laws of this State, by special assessments upon the property benefited thereby.’’’

This is the only section of the constitution which it can be claimed authorizes the passage of ah act for the erection, maintenance and operation of pumping plants in levee and drainage districts. In their contention that this section does not authorize the operation of a pumping plant appellants rely solely upon McChesney v. Village of Hyde Park, 151 Ill. 634.

In 1885 a statute was enacted authorizing cities and villages to construct, maintain and keep in repair drains, ditches, levees, dykes and pumping works for drainage purposes by special assessments nn the property benefited thereby. In Village of Hyde Park v. Spencer, 118 Ill. 446, the constitutionality of that act was challenged, and we held that the act of 1885 was a valid enactment, and that section 31 of article 4 authorized the passage of an act vesting the corporate authorities of cities and villages with power to construct, maintain and keep in repair not only ditches, -drains, levees and dykes, but pumping works as well, for drainage purposes, by levying special assessments upon the property benefited, upon the ground that that section of the constitution contained a general grant of power which carried with it, by necessary implication, all other powers necessary to make the general grant effective and to accomplish the results intended. In McChesney v. Village of Hyde Park, supra, the former holding of the power to construct and maintain ditches and erect pumping works by special assessments upon the property benefited was adhered to, but it was there held that a city or village could not pass a valid ordinance for a special assessment to operate or defray the running expenses of pumping works in connection with a drainage system,- but that such funds must be raised by general taxation, as a part of the current expenses of the village. It is now insisted, under the holding in the McChesney case, that while the legislature had the power to enact a statute for the erection of pumping plants in drainage districts, it is not empowered by the constitution to enact a law providing for the operation of such pumping plants by special assessments on the lands benefited. Such a situation would, indeed, be anomalous, and it would be a strange construction to put upon this section of the constitution that it provided for the erection of a pumping plant which must of necessity remain inoperative and ineffective. The only means possessed by a drainage district for raising funds for the maintenance of the district and for the operation of its pumping plant is by special assessments upon the lands benefited. The holding that under this section of the constitution provision may be made for the erection of pumping plants for levee and drainage districts is based on sound reasoning. A levee constructed around a drainage district will retain the water which naturally accumulates within the district as effectively as it will prevent the water coming in from the outside. Pumping plants are therefore necessary adjuncts to the levees and ditches of many districts, but without the power to operate them they would not only be useless but the maintenance of such districts would be of no benefit-whatever. If the general grant of power in this section of the constitution is, as has been said in numerous cases, unrestricted in its terms, and carries with it, by necessary implication, all other powers necessary to make the general grant effective and to accomplish the re-suits intended, it certainly carries with it the power to provide for the operation of pumping plants as well as for their erection. The holding in McChesney v. Village of Hyde Park, supra, should not be held to apply to drainage districts organized under the Levee* act, where the only method given for the raising of money necessary to maintain and operate the works of the district is by special assessments on the property benefited. In the McChesney case, supra, it was pointed out that the village of Hyde Park had other means of procuring the money to meet the expense of operating its pumping plant, and what was there said should be considered only in connection with the facts in that case. - That the court appreciated that a different situation would be presented in the case of such a drainage district as the one here involved is evident from the following language in the opinion: “For in the case of ordinary drainage districts formed for agricultural purposes, if pumping works and machinery were used and labor in operating them required, it would be difficult to see how, in the absence of power to make special assessments upon the property benefited, the running expenses of the system adopted and the cost of operating the machinery and pumping works could be paid. But no such difficulty arises under the act of June 22, 1885.” The holding in the McChesney case does not apply to such a case as this but should be confined to such facts as were presented in that case. The act is not in .conflict with section 31 of article 4 of the constitution.

The contention that the act is in conflict with section 13 of article 4 of the constitution is of a more serious character. The original act of 1905 consists of three sections. The first section provided that whenever the commissioners of any district theretofore or thereafter organized under the Levee act should deem it necessary to erect, maintain and operate one or more pumping plants, they might, with the approval of the county court, “out of the funds ráised, or to be raised, by special assessments on the lands of such district, and as a part of the drainage and levee work of the district, erect, maintain and operate one or more such pumping plants in such district.” The second section legalized and validated all proceedings theretofore had for the erection, maintenance or operation of pumping plants and all bonds issued and indebtedness incurred therefor. The third section consisted of an emergency clause. By the act approved May 20, 1907, section 1 was amended by adding thereto the following: “And for the purpose of maintaining and operating such plants, together with the necessary repairs of the drains, ditches and levee of the district, as shown ,by the report of the commissioners made each year to the July term of the court as now provided by law, the court may approve and order such amount thereof as may be shown to be necessary to be collected as an assessment upon the lands of the district for the current year, which amount shall not require a rate of more than 60c upon each acre'of all the lands of the district for such year.” By the act approved June 7, 1911, the said section 1 was further amended to read, that whenever the drainage commissioners shall deem it necessary that one or more pumping plants be erected, they may, with the approval of the county court, out of the funds raised or to be raised by special assessment, and as a part of the drainage and levee work of the district, “erect, maintain and operate one or more such pumping plants in such district, and for the purpose of maintaining, operating and keeping in repair such plant or plants along with the levees, ditches and other works of such district, the annual amount of benefits levied and assessed against the lands of such district shall be in such amount as the county court in which said district is organized and which has jurisdiction over the said district shall find will accrue to the lands of the said district by the maintenance and operation of the ditches, levees, pumping plant or plants and other works of said district, in accordance with the provisions of the said act entitled,” — here giving the title of the Levee act. Then follows a clause repealing section x of the act of 1907, which, in turn, is followed by a proviso that the act shall apply only in cases “where said drainage districts have or have at the inception of their organization, and keep and maintain pumping plants or stations.”

Section 1 of the act of 1905, and each of the amendments thereto, in order to identify the drainage commissioners authorized to take advantage of the provisions of the act, referred to them as the commissioners of any drainage and levee district heretofore or hereafter organized under an act entitled “An act to provide for the construction, reparation and protection of drains, ditches and levees,” etc., giving the complete title of the Levee act, together with the various dates of amendments thereto.

The act in question does not purport to amend the Levee act so far as the title indicates or the contents of the act show? It professes to be an independent act of legislation upon the subject of drainage. It is of no consequence, however, that the act does not .expressly profess to amend the Levee act. If, in fact, it makes changes in the various sections of the Levee act, substituting provisions, adding new ones and mingling the new with the old on the same subject, so as to make of the old and the new .a connected piece of legislation covering the same subject, the later act must be considered an amendment of the former. People v. Knopf, 183 Ill. 410; Badenoch v. City of Chicago, 222 id. 71; O’Connell v. McClenathan, 248 id. 350.

In People v. Wright, 70 Ill. 388, People v. Knopf, supra, and other cases, we have tajeen occasion to quote with approval'the statement of Judge Cooley in People v. Mahoney, 13 Mich. 484, as to the ground of this constitutional provision, as follows: “The mischief designed to- be remedied was the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effect, and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the changes made in the laws. An amendatory act which purported only to insert certain words, or to substitute one phrase for another in an act or section which was only referred to but not re-published, was well calculated to mislead the careless as to its effect, and was, perhaps, sometimes drawn in that form for that express purpose. Endless confusion was thus introduced into the law, and the constitution wisely prohibited such legislation. But an act complete in itself is not within the mischief designed to be remedied by this provision and cannot be held to be prohibited by it without violating its plain intent.”

The act of 1905 was clearly an attempt to amend the Levee act. It provided that pumping plants should be erected, maintained and operated out of funds raised or to be raised by special assessments on the lands of the district, and that they should be erected, maintained and operated as a part of the drainage and levee work of the district. Without looking further into the Levee act, it is apparent that the said act of 1905 attempted to amend sections 17E2 and 26y-2. of that act. Said section 17/d provides for the assessment, by a jury, of the annual amount of benefits which the lands within the district will sustain by keeping the levee or ditch in repair after the construction of the work in the district, which annual amount is restricted so that it shall not, in the aggregate, amount to a sum in any one year greater than would be produced by a levy of thirty cents per acre on all the lands within the district. Said section 26J2 provides that the annual amount of benefits shall be due on September 1 of each year; that the court shall require a report from the commissioners of the condition of the levee or ditch at its July term of each year, together with their estimate of the amount necessary to keep the levee or ditch in repair, and that if the court shall find that a less amount will be required for such ensuing year than the whole amount of the assessment for that year then it shall fix the amount to be paid, and only that amount shall be collected and the excess shall be remitted, provided that the amount to be collected shall not, in the aggregate, amount in any one year to- a sum greater than would be produced by a levy of thirty cents per acre on all the lands within the district. As will be hereinafter pointed out, the -annual assessments provided for in said sections 17K and 263-2 of the Levee act may be applied to the payment of the expenses of operating a pumping plant under the implied powers conferred by that act. Said sections 17L2 and 263/2 do not expressly authorize such use of the annual assessments, however, and the effect of the said act of 1905, if valid, was to make express and explicit that which was theretofore necessarily implied. By thus ingrafting said act of 1905 upon the Levee act said sections 173/2 and 263^ are so amended as to expressly authorize the expenditure of a portion of the annual assessments of benefits for the operation of pumping plants as well as for the repair of the levees and ditches. As it was purely an amendatory act and was passed in violation of section 13 of article 4 of the constitution it was invalid. The amendment of 1907 is a more flagrant violation of the constitution than the original act of 1905, as it amends said sections 17L2 and 263^ of the Levee act by substituting in the restriction therein placed upon the provision for the annual assessments for benefits the sum of sixty cents per acre for that of thirty cents per acre. That this was an amendment of those sections was afterwar'ds appreciated by the legislature, and we find by amendments to said sections 173-2 and 263/2, approved and in force May 29, 1909, that while the amount of the annual assessments is still restricted, in the aggregate, to a sum no greater than would be produced by thirty cents per acre, it is provided that should any district organized under the act erect and maintain one or more pumping plants, an assessment of annual benefits may be made as provided in section i of said act of 1905, as amended in 1907. The reference by title to the said act of 1905 as amended in 1907, in the amendment to said sections 17^2 and 26^ of the Levee act did not give validity to this invalid act. The same unconstitutional features are preserved in the amendment of 1911 to the Pumping Plant act which so amends sections and 26% as to remove all restrictions as to the amount which may be raised by annual assessments of benefits. The act of 1905, as well as the amendments thereto, having been thus passed in violation of the constitution, is invalid and afforded no authority for these proceedings.

We are of the opinion, however, that the Levee act itself affords ample authority for the erection and maintenance of pumping plants in levee and drainage districts. It has already been pointed out that it would be useless to construct levees around drainage districts without making provision for the elevation of the water over the same in order to remove it from the district. While the Levee act does not in express terms authorize the erection, maintenance and operation of pumping plants in connection with drainage districts, we have held that this statute plainly gives to drainage commissioners the power, under the direction of the court, to perform any work necessary for the protection and ample drainage of lands within the district, whether the work is to be done within or without the district, and to raise money by assessment for that purpose. (Binder v. Langhorst, 234 Ill. 583.) When the erection and operation of a pumping plant become necessary for the complete and. successful drainage of the district, the Levee act, by necessary implication, authorizes the erection of the plant and its operation. The expenses for the operation of the plant, however, can only be secured through the annual assessment of benefits, which amount shall be determined in the method provided by said sections 17^4 and 26^2. This method was not followed in this proceeding, and the annual assessment of $i 1,000 was therefore erroneously spread.

Hartwell Drainage District v. Mickelberry, 257 Ill. 509, is relied on as sustaining the validity of the Pumping Plant act. That case involved only the construction of the act, and the question of its validity was neither raiséd nor passed upon.

The judgment of the county court is affirmed as to the assessment of $60,000 for further work and the erection of an additional pumping1 plant and is reversed as to-the annual assessment of $11,000, and the cause is remanded to the county court, with directions to sustain the objections as to the annual assessments.

Reversed in part and remanded, with directions.

Carter and Dunn, JJ., dissenting.