People ex rel. Barber v. Chapman

Mr. Justice Shops delivered the opinion of the Court: This appeal brings before us the record of the judgment of the county court of Iroquois county, rendered on the application of the county collector of that county for judgment against delinquent lands and lots for taxes, special assessments, etc., due thereon. A drainage district was organized in that county, under the Drainage act of 1885, embracing certain lands of appellee, upon which two special assessments appear to have been made, the second of which, only, is involved in this case. The second assessment was made pursuant to a resolution of the drainage commissioners, and not having been paid by appellee, the proper return was made of the assessment roll and of the special assessment thereon remaining unpaid, and application by the county collector was made for judgment against appellee’s land so delinquent. Appellee appeared in the county court, and objected to the rendering of judgment against his lands for such special assessment, upon the ground that the drainage district included lands which the commissioners had neither classified nor assessed for benefits, and in respect of which they had in no way indicated whether such lands were or were not benefited; that the lands referred to were not included in the petition for the organization of the district, but were brought into the district by the commissioners, at the time the district was organized, for the reason that such lands would be benefited by the contemplated drainage; and upon the further ground, that the second assessment was made, and the assessment roll filed with the town clerk, without notice to appellee, and that appellee did not, in fact, learn of the assessment until some days after the time of appeal therefrom had expired; and because the lands not classified and assessed were greatly benefited by the drainage of the district, and should therefore have been assessed, and that by the failure of the commissioners in this regard, appellee’s lands were assessed more than their proportionate share of the sum required to be raised. A demurrer was interposed to the objections, and, under stipulation that no question of fact should be raised on the hearing, the legal sufficiency of the objections was considered, which resulted in the overruling of the demurrer and the rendition of a judgment abating the special assessment against the lands of appellee. The People, upon the relation of the collector, appealed to this court. The practice of demurring to objections interposed to the application of the county collector for judgment against de-' linquent lands, etc., for unpaid special assessments, has been condemned by this court. It was said in Enos v. City of Springfield, 113 Ill. 65: “We are aware of no statute or well settled practice which authorizes a demurrer to be filed in such a case. Where objections are filed in such a case, it is incumbent on the party-filing them to sustain them by proof, unless they appear on the record. We are not inclined to sustain a practice which will admit the truth of every objection which may be filed, however frivolous, although a demurrer may be interposed to the objection.” As respects the first objection,—namely, the omission of the drainage commissioners to classify certain lands within the drainage district, and their failure thereby to indicate whether such lands were or were not benefited,—we are of opinion the objection came too late. The twenty-first section of the act provides the manner in which the commissioners shall classify the lands within the drainage district, and that when estahfished and properly tabulated, or shown by a map, such classification shall be filed in the office of the town clerk, for inspection, and “shall remain as a basis for such levy of taxes as may be needed for the lawful and proper purposes of the drainage district.” But by the twenty-fourth section provision is made for personally serving “upon all parties owning lands to be affected by the proposed work, * * * and residing in the county, a written or printed notice of the time when and place where they” (the drainage commissioners) “will meet to hear any and all' objections that may be made to the classification of lands on the graduated scale,” etc. Assuming, as we must, that appellee was served with the notice, as required by this section, and the commissioners being, by the next section of the act, authorized and required, at the time and place mentioned in such notice, to “hear whatever objections may he urged by any person interested,” and to correct any injustice shown to exist in such classification, appellee must be presumed to have appeared before the commissioners at the time they were sitting in review of their classification of the lands within this district, and to have then objected to any injustice to him by reason of such classification; and if appellee failed to so appear and object, he must he held to have waived all objection to the action of the commissioners relating to such classification. The law gave him ample opportunity to he heard touching the classification of the lands, before a tribunal with ample power to afford him relief. It required him to be notified in time to interpose any objections he might hfive thereto. The law also gave him the right of appeal from the decision of the commissioners upon his objections, todhree supervisors, who were invested with power to correct any error-shown to exist in the classification. Thus the rights of the property owner, in respect to the classification of lands within the district, are fully and perfectly protected; and if the property owner neglects to avail himself of the right of redressing any wrong and of correcting any error and injustice, he ought not to be heard to complain at another time and in another forum. The case here presented presents a striking analogy to the right of a property owner to have the assessment of his property for general taxation reviewed by the town board and afterwards by the county board, and no reason is perceived why the same rule should not govern in both eases. The .objection" that appellee was not notified of the resolution and order of the commissioners making these special assessments, and of the making and filing of the assessment roll, and did not, in fact, learn of the same until the time allowed by the statute for an appeal therefrom had expired, is most strenuously insisted upon. It would "seem to be a sufficient answer to this contention to say, that the statute does not require such notice to be given. The better answer, perhaps, is, that no reason is perceived why such a notice should be given. From the time the drainage commissioners assume to exercise the powers conferred on them, and which is to result in the levying of a special drainage assessment, the proceedings may not inaptly be likened to a suit in court. The commissioners, as a first step, make a classification of the lands; the property owners are then brought before them by notice,—residents by personal service, and non-residents by publication; and the succeeding steps to be taken, both by the property owner and by the commissioners, follow in regular progression, and without unnecessary delay. And for the same reason that a party over whose person the court has acquired jurisdiction is required to take notice of the different steps taken in his cause, the property owner in a drainage district who has been notified of the classification of the lands, must also be required to take notice of each succeeding step taken by the commissioners to effect the object for which the district has been organized. If, therefore, we assume, as did the county court, that the effect of the demurrer and stipulation of the parties was to admit as true, without proof, the facts disclosed in the objections of appellee, they constituted no legal objection to the assessment upon the lands of appellee then delinquent, and it was error for the court to sustain them and abate the tax. The judgment of the county court is therefore reversed, and the cause remanded for further proceedings. Judgment reversed. •