People ex rel. Gannaway v. Glassco

Mr. Justice Wilkin delivered the opinion of the court: Appellee owned certain lands in Union Drainage District No. 3 of the towns of Seven Hickory and Humbolt, Coles county, this State. The district was organized under section 76 of the Drainage law, as amended May 11,. 1901, in force July 1, 1901. (Laws of 1901, p. 157.) The lands of the district were classified by the commissioners, and appellee, with other owners, was notified of the same, and also of the time and .place objections thereto would be heard. He appeared and filed objections to the classification of Ms land, but the commissioners overruled the same, and he thereupon appealed from their order by filing bond in the office of the town clerk of the town of Seven Hickory, that being the town in which his lands were situated. The town, clerk summoned three supervisors, who heard the appeal and reduced the classification on certain of the tracts. Thereafter the commissioners, in making their levy upon the lands of the district to raise funds to pay for work proposed to be done, disregarded entirely the appeal and order of the three supervisors and caused the levy to be spread on appellee’s lands in accordance with the classification made by them. He did not pay the assessment, but allowed the lands to be returned delinquent, and after-wards paid the amount due according to the order of the supervisors on his appeal, but refused to pay the remainder. That balance of the assessment was reported by the county treasurer to the county clerk, accompanied by his application for judgment of sale for the delinquency. Appellee there filed objections setting up the foregoing facts, under which he insisted his lands were not liable for the additional amount claimed. The contention of the county collector was then, and is now, that no appeal to three supervisors is authorized by the statute, and hence their order reducing the assessment on appellee’s lands was without jurisdiction, and void. The single issue in the county court was whether, under said amended section 76, an appeal would lie from the action of the commissioners in classifying the lands of the district, to three supervisors. That court decided the issue for appellee and denied the application for judgment of sale, and to reverse that judgment this appeal is prosecuted. There is no dispute whatever as to the facts, and the correctness of the judgment of the court below must be determined upon a construction of the language of said amended section. Appellee prosecuted his appeal under that provision of the section which says: “If any land owner of the district shall feel aggrieved at the assessment made by the commissioners, he may take an appeal to three supervisors, as provided in sections 24 and 25 of the act hereby amended.” The amendatory act is entitled “An act to amend section 76 of an act entitled ‘An act to provide for drainage for agricultural and sanitary purposes, and to repeal certain acts therein named,’ approved June 27, 1885.” Section 1 is as follows: “Be it enacted by the People of the State of Illinois, 'represented in the General Assembly: That section 76 of an act entitled ‘An act to provide for drainage of agricultural and sanitary purposes, and to repeal certain acts therein named, ’ approved June 27, 1885, in force July 1, 1885, be amended so as to read as follows:” Then follows the amendment to section 76, containing, among other provisions, the language above quoted, authorizing an appeal to three supervisors. (Laws of 1901, p. 157.) Section 24 of the act amended,—i. e., the act approved June 27, 1885,—provides: “At the time of meeting for re-. view, the commissioners shall hear whatever objections may be urged by any person interested, and if satisfied that any injustice has been done in the classification of the several tracts of land, or any of them, they shall correct the same in accordance with what is right; but if not so satisfied, they shall leave the classification as first made, and enter an order to that effect. Any person appearing and urging objections, who is not satisfied with the decision of the commissioners, may appeal .from their decision to three supervisors of the county, within ten days after the decision of the commissioners was rendered, by filing with the town clerk a bond with security conditioned to pay such tax as may finally be levied upon the land in question, and the costs occasioned by the appeal, in case the commissioners shall be sustained by the board of appeal.” Section 25 of the same act provides the manner of summoning three supervisors; how the hearing shall be had, etc., and authorizes the filing of their final determination, in writing, with the town clerk, to be recorded with other papers in the drainage record, which shall be conclusive. (2 Starr & Cur. Stat. p. 1546.) On May 10, 1901, the day previous to the one on which the amendment to section 76 was adopted, the legislature passed another act entitled “An act to amend sections twenty-four (24), twenty-five (25), * * * and to repeal section twenty-seven (27) of an act entitled ‘An act to provide for drainage for agricultural and sanitary purposes, and to repeal certain acts therein named,’ approved June 27,1885, in force July 1,1885,” etc. Section 1 provides that the foregoing sections be amended to read as follows: Sec. 24. “At the time of meeting for review, the commissioners shall hear whatever objections may be urged,” etc., setting forth the language of section 24 above quoted from the act of 1885, and then provides: “Any person appearing and urging objections who is not satisfied with the decision of the commissioners, may appeal from their decision to the county court of the county in which the lands affected are situated, within ten days after the decision of the commissioners was rendered, by filing with the county clerk a bond with security conditioned to pay such tax as may finally be levied upon the land in question, and the costs occasioned by the appeal in case the commissioners shall be sustained by the court of appeal.” Section 25, as amended, provides for the manner of taking an appeal to the county court, the summoning of twelve land owners having certain qualifications, as a special jury to try the case on the appeal, and also, under certain conditions, for a further appeal to the circuit court. (Laws of 1891, p. 148.) Upon the foregoing statement of facts counsel for appellant insist that an appeal by a land owner from the classification made by the commissioners in a district organized under said amended section 76 can only be taken to the county court of the proper county. It is undoubtedly true, as we held in Howard v. Drainage Comrs. 126 Ill. 53, that section 76 was intended to bring that particular class of drainage districts within the operation of the several preceding provisions of the act so far as they are applicable, and we there held that, in the absence of a provision in said section 76 (as it then existed) authorizing an appeal from the action of the commissioners in making a special assessment, the owner could lawfully prosecute an appeal to the county court under the preceding section 27. That case can, however, have no controlling influence upon this, because section 76, as amended, does expressly authorize an appeal to three supervisors. It is earnestly insisted that inasmuch as the legislature had, prior to the adoption of the amendment to section 76, (May 11, 1901,) so changed sections 24 and 25 of the act of 1885 as to allow appeals only to county courts, the language in said amended section 76 authorizing appeals “to three supervisors” should be held to have been used inadvertently or by mistake. That the legislature had the power to authorize an appeal from the action of commissioners, under section 23 of the act, (2 Starr & Cur. Stat. p. 1546,) to the county court, and to three supervisors from the assessment made by commissioners under the provisions of section 76, cannot be doubted. Just why it was thought advisable to do so may not be altogether clear; but that is a question with which we have nothing to do, if such an intention satisfactorily appears. The canons of construction applicable to the interpretation of statutes cited and relied upon by counsel for appellant in their able argument are undoubtedly sound, but as we read this act they can have no proper application. Indeed, the statute, as we understand it, admits of no construction. Recurring to the language, “if any land owner of the district shall feel aggrieved,” etc., we find the appeal may be taken “to three supervisors, as provided in sections 24 and 25 of the act hereby amended.” What act was “hereby amended?” The title and first section of the act answer the question,—i. e., the act “approved June 27, 1885, in force July 1, 1885.” The act of May 10, 1901, amending sections 24 and 25, was in no way affected by that of May 11, 1901. The argument of counsel seems to ignore this direct and explicit reference to the sections as they existed under the act of 1885. The legislature had the right to make those sections as they existed under the act approved June 27, 1885, a part of the amendment to section 76 by reference thereto, without re-writing them into the amendatory act, and having done so they are to be treated as parts of said amendment, even though those sections may have been since changed or even repealed. It is not correct, therefore, to say, as is insisted by counsel for appellant, that there is no authority in the town clerk to approve the appeal bond and summon three supervisors to hear the appeal. That power and authority existed as well after as before the first of July, 1901, when the amendment to sections 24 and 25 took effect, those sections having become parts of section 76 by the amendment of May 11, 1901. We do not regard the rule laid down by Endlich on the Interpretation of Statutes, (sec. 85,) adopted by this court in Culver v. People, 161 Ill. 89, and other cases cited by counsel for appellee, as 'having any proper application to this case. Had the amendment to sections 24 and 25 been passed after the one to section 76, that rule would have aided appellee in the construction contended for by his counsel, but, as we have seen, it was not. Whether the legislature intended to adopt sections 24 and 25 as they existed at one time or another, we repeat, is not a matter of construction. It has by unmistakable language adopted those sections according to the provisions contained in them by the act adopted June 27,1885, and that expressed intention must control. The judgment of the county court will be affirmed. Judgment affirmed. Subsequently, on petition fqr rehearing, the following additional opinion was filed: Per Curiam: Since the foregoing opinion was adopted and filed appellant has presented his petition for a rehearing, which was considered and allowed at our last April term. The point most urged in that petition was, that the decision here announced is inconsistent with that of Frahm, v. Commissioners of Craig Drainage District, 200 Ill. 233, and it is argued that under the doctrine of stare decisis the latter case should control this. It is true that the Frahm case came before us on writ of error to the county court of Douglas county, to which it had been appealed, whereas, under the doctrine of the present decision, the appeal should have been taken to three supervisors, but it is not true that the question here decided was either raised or passed upon in that case. Neither party denied the right of appeal to the county court, but the motion of the defendants in error to dismiss the appeal for want of jurisdiction in the county court was upon the ground that “the summons issued by the county clerk was returnable to the law term, beginning on January 13, instead of the probate term, beginning on January 6.” The question, therefore, for decision was not whether the county court originally obtained jurisdiction, but whether by the irregular service of summons it had lost such jurisdiction, and the opinion decides that and no other question. In the present case, as stated in the foregoing opinion, the single issue in the county court from which the appeal is prosecuted was whether, under section 76, as amended, an appeal would lie from the action of the commissioners in classifying the lands, to three supervisors. That question was elaborately argued by counsel on either side upon the hearing. It was not denied on behalf of appellants that an appeal was so allowed by the express language of the section, but the insistence was, that by construing that section with the amendatory act of May 10, 1901, the language authoriziug an appeal to three supervisors should be treated as unintentionally used by the legislature or inserted by mistake. The Frahm, case was decided correctly on the issue there raised, but it is in no sense an authority upon the question here decided. It cannot be seriously contended that under the rule of stare decisis it has any controlling influence upon the present case. It is again insisted in the petition for rehearing that by a proper construction of the several sections of the statute an appeal from the action of the commissioners in making an assessment under section 76 must be taken to the county court, and not to three supervisors. We have reconsidered" that question and are still unable to agree with the position. Section 21 of the Farm Drainage act of June 27,1885, provides for special assessments for benefits by the commissioners, who are required to make a classification of lands on a graduated scale, etc. Section 23 provides for giving notice to property holders, by the commissioners, of a time and place for hearing objections against such assessments. Section 24 requires a hearing by the commissioners of whatever objections may be urged by any person interested, and provides for an appeal from the decision of the commissioners to three supervisors, and section 25 prescribes the manner in which the appeal shall be taken. The amendment to sections 24 and 25 of May 10, 1901, simply authorizes an appeal from the decision of the commissioners in classifying the lands in the district, to the county court instead of to three supervisors, and does not in any way affect or purport to change the right of appeal given by amended section 76. The 'judgment of the county court of Coles county will again be affirmed. Judgment affirmed.