Curry v. Jones

4 Del. Ch. 559

• Court: Court of Chancery of Delaware
• Decided: September 15, 1872
• Status: Published

Opinion

The Chancellor:—

It appears that the commissioners named in the act of Assembly did not, before proceeding to perform their duties, all go upon and view the several swamps and low grounds of the main branch of the Nanticoke river and its tributaries, as by the act they were required to do ; but on the contrary, there were many of the said swamps and low grounds, composing a large proportion of the whole of the swamp, which the -commissioners did not go upon and view before proceeding to lay out the ditches and estimate the cost thereof. These swamps and low grounds which the commissioners did "not go upon, were, nevertheless, included in the estimates made of the number of acres of the lands to be benefited, and the owners thereof were assessed to pay a portion of the estimated cost of making the ditches.

It further appears by the bill, which has been taken pro confessa, that returns of the proceedings and estimates were made by two of the commissioners who had failed to view the lands to be assessed. These proceedings of the commissioners, in the laying off of the ditches, and estimating the cost of making the same, and assessing the proportion of such cost to be paid by the persons benefited by the said ditches, were wholly unauthorized under the said act, irregular, illegal and void, two of the commissioners not having participated in the proceedings, but having signed the return, and all the subsequent proceedings, including the election of managers and the treasurer, which were based upon the assumption that the action of the commissioners had been taken in conformity with the authority of the act, were in fact, invalid, and the action of the defendants Jones, Lord and Booth, who had been elected managers, and of Hayes, who had been elected treasurer, in proceeding to lay out the ditches, and to collect the tax assessed against the complainant, were wholly unauthorized by the Act of Assembly, and in violation of the trusts reposed by the same in the commissioners.

The original invalidity of the action of the commissioners in the omission to go upon the lands of each taxable before assessing their several contributions, is fatal to the whole course of procedure, and sufficient in itself to support a decree for a perpetual injunction. Against the illegal attempt to collect a tax from .the complainant, there is no' adequate remedy, except by the the process of this court. Several other grounds for invalidating the proceedings taken under the ditch law, are set forth in the bill. After considering them all, the other grounds seem to me more open to question, and I prefer to base the decree upon the single ground stated. It is, therefore, ordered that a decree be entered making the injunction heretofore issued perpetual.