Kilgour v. Drainage Commissioners

Mr. Justice Dickey delivered the opinion of the Court: A preliminary question is presented by the motion of appellees — whether an appeal lies in this case directly to this court. It is insisted that the matters involved in this action do not relate to the revenue, but that the enforcement of a contract is all that is embraced in the suit. We can not accede to this view. While it is true that the action is brought upon appellant’s appeal bond given on his appeal from a special assessment upon his land, yet the sum actually recoverable in this form of action is the amount of the assessment, and nothing more, except the costs. The appeal bond is but incidental or collateral to the assessment it was given to secure. It matters not whether the money is collected on the assessmeút or on the bond. The character of the fund will be the same in either case, and becomes a part of the funds of the corporation devoted to certain public purposes, as much so as a school or road tax. There can be no doubt that a recovery of the assessment in this case by the sale of the lands assessed would be a bar to a suit on the appeal bond, the same as a discharge of the bond by payment would bar an application for judgment on the assessment. The demurrer was properly sustained to the plea of nil clebet. Such a plea is bad in an action on an appeal bond. King et al. v. Ramsey, 13 Ill. 619; Caldwell v. Richmond, 64 id. 30; Mix v. The People, 86 id. 329. The third plea is, “that he (defendant) ought not to be charged with the said debt by virtue of the supposed writing obligatory, because he says that the said assessment in said declaration was afterwards, to-wit, etc., set aside by the county court of said Whiteside county, and that said assessment since has remained, and now is set aside, annulled, and for nothing held, ” etc. This plea is no answer to the declaration. The condition of the bond is the payment of the assessment in case of its affirmance by the three supervisors to whom the appeal was taken, and the plea fails to show any appeal from the supervisors to the county court, so as to authorize that court to set aside the assessment, nor does the plea in any way show jurisdiction in the county court to act in this regard. The fourth plea fails to answer the breach alleged,— a failure to pay the assessment on its affirmance by the supervisors. The refusal of the county court to render judgment against the land to enforce the lien of the assessment, is no answer to the breach. A suit may he maintained upon an appeal bond given on appeal from a judgment against land for taxes, for a breach of the condition to prosecute the appeal with effect, notwithstanding the remedy against the land remains unexhausted. In such case the obligee may pursue either remedy he chooses. (Mix et al. v. The People, use, etc. 86 Ill. 329.) The remedy against the land is merely cumulative, and a failure to pursue it does not avoid the personal obligation to pay, created by the bond. The People v. Stahl, 101 Ill. 346. The fifth plea is, that the defendant had no notice of the time and place of the meeting of the commissioners when and where they confirmed such assessment, and did not appear. The sixth plea avers want of notice of the meeting of the commissioners. The appeal cured any want of notice of the proceedings, and gave appellant a chance of being heard, and a right to a trial on the merits. Hohmann v. Eiterman, 83 Ill. 92; Gilkerson v. Scott, 76 id. 509. The seventh plea sets up that plaintiffs were elected commissioners of highways in and for the town of Montmorency, before the said statute constituting them drainage commissioners became a law, and that said plaintiffs have not been elected or appointed such commissioners of highways since the passage of said law; that said plaintiffs were never elected or appointed as such drainage commissioners, nor did they, or any of them, ever take any other or further oath, or file any other bond. This plea is intended to present the constitutional question as to the power of the legislature to enact that the highway commissioners of a township should also be drainage commissioners of the township. It is contended that section 71 of the Drainage law is invalid, as an assumption of an appointing power which the legislature does not possess. We do not think the constitutional objection to the section is well taken, but, on the contrary, think it is a valid enactment. Under the amendment of the constitution, (section 31, article 4,) adopted in November, 1878, the legislature is expressly empowered to “provide for the organization of drainage districts, and vest the corporate authorities thereof with power to construct and maintain levees., drains and ditches, ” etc. This general grant of power being unrestricted in terms, carries with it, by necessary implication, all other powers necessary to make the general grant effective, and to accomplish the results intended. As to the mode in which this power is to be exercised, the legislature is left the sole judge. Numerous instances might be referred to in which the legislature has imposed new duties upon officers already elected, where the duties of such officers are not fixed by the constitution, and the constitutionality of such enactments would seem to be unquestionable. Imposing by law new duties upon officers merely statutory, already chosen, is by no means the appointment or selection of such officers by the legislative department. The provisions of the constitution in relation to taxes have no application to the imposition of the burdens imposed by this act. These assessments are not taxes. It is a special regulation, whereby an owner is required to pay for benefits specially conferred upon his land. The judgment of the court below is therefore affirmed. Judgment affirmed.