Hutchins v. Vandalia Levee & Drainage District

Mr. Justice Magruder delivered the opinion of the court: This is a proceeding for the organization of a levee and drainage district under the act of May 29, 1879, as amended in 1885, and entitled “An act to provide for the construction, reparation and protection of drains, ditches and levees across the lands of others, for agricultural, sanitary and mining purposes, and to provide for the organization of drainage districts.” (2 Starr & Curt. Ann. Stat.—2d ed.—p. 1500). It will be seen from the'statement of facts preceding this opinion, that damages for lands of appellant taken for the improvement in question, and damages to lands of appellant not taken, were assessed by three commissioners appointed by the court. The assessment roll, filed by the petitioners, and the verdict returned by the jury, show that some 14 acres, belonging to appellant, were taken for the building of the levee and ditches in question. This court held in Juvinall v. Jamesburg Drainage District, 204 Ill. 106, that those provisions in the act of May 29, 1879, and the amendments thereto passed in 1885, which authorized the assessment of damages for lands taken, and of damages to lands not taken, by commissioners instead of a jury, were unconstitutional. The reasons for this conclusion need not be here repeated. Therefore, the objections, filed by the appellant to the original assessment of such damages by the commissioners as to appellant’s property, so far as such objections relate to the power of the commissioners to make the assessment without a jury, were well taken. The county court did not make any ruling either overruling or sustaining these objections, but, recognizing their validity, ordered a jury to be empaneled, and ruled that the calling of the jury disposed of such objections. In Wabash Railroad Co. v. Coon Run Drainage District, 194 Ill. 310, this court held that the sections of the act of May 29, 1879, which attempted to provide for the assessment of damages by a jury, are unconstitutional as not designating for that purpose such a jury as is contemplated by the organic law. The reasons for this conclusion are stated in the last named case, and need not be here repeated. If, therefore, the court had ordered the damages to be assessed by such jury, as is provided for in the act of May 29, 1879, and in the manner specified in that act, the error of causing the damages to be assessed by commissioners would not have been cured. In view of this difficulty the court ordered a jury to be empaneled or drawn “under the Eminent Domain act,” as is stated in the order entered on March 15, 1904. The principal question, therefore, which is presented by this record, is whether the county court, in a proceeding for the organization of a drainage district under the act of May 29, 1879, and for the assessment of benefits and damages under the terms of that act, can abandon such act, and invoke the aid of the Eminent Domain act for the purpose of fixing the compensation to be paid to the property owner for the taking or damaging of his property. We are of the opinion that the county court had no power to pursue this course, and that its action in this regard was erroneous. The bill of exceptions shows that, when the court directed the jury to be drawn under the Eminent Domain act, counsel for appellant excepted to such action of the court. It also appears that counsel for appellant asked for a new trial, and made a motion in arrest of judgment, upon the ground that the jury was not properly selected to try the issues in the case. Due exception was taken by the appellant to the action of the court in overruling his motion for new trial and his motion in arrest of judgment. These exceptions bring the question directly before us as to the correctness of this action of the court, and, in view of such exceptions, the right of appellant to object to the action of the court has not been waived. Cases, to the effect that there was such waiver by reason of a failure to challenge the array on account of some irregularity in the summoning of the jury or the issuing of a venire, have no application here. (McCaleb v. Coon Run Drainage District, 190 Ill. 549; Chicago, Milwaukee and St. Paul Railway Co. v. Hock, 118 id. 587). Section 2 of the Eminent Domain act provides that the petition, therein required to be filed, is to be filed in cases where the right to condemn property, or to take property for public use without the owner’s consent, is conferred by general law or special authority upon any corporate or .municipal authority, etc. The act of May 29, 1879, as subsequently amended, is the only law, which gives to the levee and drainage districts therein described the power to take private property for the improvements therein permitted. That act provides the specific mode, by which damages for taking or damaging such property are to be assessed. In Trigger v. Drainage District, 193 Ill. 230, we said (p. 233): “It is clear from the several sections of the act under which this proceeding was had that the county court may, in the first instance, order the assessment of benefits to be made either by a jury or by the commissioners, and that whichever body is ordered to make the assessment must hear and determine objections filed to such assessment.” The jury, which is to fix the amount to be awarded as damages for property taken, is the jury described in the act of May 29, 1879. In other words, the power of condemnation of private property for public purposes, as conferred by the act of May 29, 1879, must be exercised in the manner pointed out in that act, and not in the manner pointed out in the Eminent Domain act. So far as the legislature conferred the power of condemnation by the act of May 29, 1879, upon levee and drainage districts, it conferred such power to be exercised in the mode described in the act, and its intention was that such power should be exercised only in that mode, and not in some other mode. The object of courts, in construing acts of the legislature, is to ascertain the intention of the legislative body, and, if it is clear that the intention of the legislature was to require these districts, or their commissioners, to proceed in the mode specified in that act, the power to proceed in the mode specified in some other act is excluded. There is nothing in the act of May 29, 1879, or any °f tbe subsequent amendments thereto, which authorizes the county court, or any other court, to proceed in accordance with the provisions of the Eminent Domain act. Section 46 of the act of 1879 refers only to the construction of additional drains, etc., or the repair of drains already constructed by drainage and levee districts already organized. Under section 2 of the Eminent Domain act the party, authorized to take or damage private property or to construct a public improvement by the taking or damaging of such property, must apply to the judge of the circuit court or county court, either in vacation or term time, where the said property or any part thereof is situated, by filing with the clerk a petition. This petition must' set forth by reference the authority of the party seeking condemnation, the purpose for which the property is sought to be taken or damaged, etc., and it must pray the judge to cause the compensation, to be paid to the owner, to be assessed. It has been held that, this petition is jurisdictional, and the filing of it with the proper averments, as required by section 2 of the Eminent Domain act, is necessary to put the court in motion, in order to enable it to determine the compensation to be paid for the property taken or damaged. In Chicago and Northwestern Railway Co. v. Galt, 133 Ill. 657, we said (p. 667):1 “To put the court in motion and give it jurisdiction in condemnation proceedings, a petition is, in general, necessary, and must be in conformity with the statute granting the right of condemnation. It should set forth by appropriate averments all such facts as are necessary to authorize the tribunal to act. * * * The jurisdiction, exercised in condemnation cases, is always of a special character. The proceedings are to be conducted according to a certain prescribed mode.” In the case at bar, no petition was filed in this proceeding, as required by section 2 of .the Eminent Domain act. (2 Starr & Curt. Ann. Stat.—2d ed.—p. 1763). Counsel for appellee seem to be under the impression that the filing of the petition in this proceeding for the organization of the levee and drainage district is such a filing of a petition, as will meet the requirements of the Eminent Domain act. In pursuance of this idea counsel for appellee asked the court to give, and the court did give in their behalf, an instruction to the jury to the effect “that for all lands taken for a right of way by the levee and drainage district compensation is to be made for the same at their fair, cash market value at the time of filing the petition.” This instruction was clearly erroneous. No other petition was filed in the proceeding at bar, except the original petition for the organization of a drainage district. At the time when that petition was filed, which was on March 11, 1903, no drainage district was organized. It was not until subsequently, to-wit, in September, 1903, that the county court entered an order, declaring the drainage district to be established in accordance with the provisions of section 16 of the act of May 29, 1879. The original petition was not filed by an existing and established drainage district, but by certain individual property owners, asking for the organization of a district. Section 2 of the Eminent Domain act contemplates a petition, filed by an already existing and established corporation, vested by general law or special charter with the power to condemn property. Therefore, the petitioñ, filed in this proceeding on March 11, 1903, before the organization or establishment of the drainage district, cannot be regarded as in any sense such a petition as is contemplated by section 2 of the Eminent Domain act. It is the doctrine of this court, that the compensation to be paid to the property owner, when his property is condemned, must be fixed by the valuation of the property at the time of the filing of the petition, and the right vested in the condemning party, upon the_ payment of the compensation awarded for the land, relates back to the time of filing the petition. (South Park Comrs. v. Dunlevy, 91 Ill. 49; Schreiber v. Chicago and Evanston Railroad Co. 115 id. 340; Chicago, Evanston and Lake Superior Railroad Co. v. Catholic Bishop, 119 id. 525). The only petition filed in this proceeding, which was a petition by property owners and not by a drainage district, is a petition for the organization of a district, and not only fails to ask any such relief as that compensation be made for lands taken or damaged, but does not allege, as is required by section 2 of the Eminent Domain act, that the compensation to be paid cannot be agreed upon with appellant. In Reed v. Ohio and Mississippi Railway Co. 126 Ill. 48, we said (p. 52) : “There is in the petition and proof in this case a total want of any reference to the jurisdictional fact of the inability of appellee railway company to agree with the land owner as to the compensation to be paid. There seems to have been no effort made to purchase the land, or agree on the compensation or price to be paid therefor, before resorting to this proceeding. The petition was clearly insufficient to give the court jurisdiction, or to entitle the appellee company to appropriate appellant’s land.” After the Vandalia Levee and Drainage District, the appellee herein, had been organized, it had the power to proceed under the Eminent Domain act by an original proceeding to condemn the property of the appellant. (Cleveland, Cincinnati, Chicago and St. Louis Railway Co. v. Drainage District, 213 Ill. 83.) This was not an original proceeding under the Eminent Domain act, but an attempt to incorporate the provisions of the Eminent Domain act into the Levee and Drainage act of May 29, 1879, and to make use of a part of those provisions, without taking the steps required by the Eminent Domain act to give a court jurisdiction to undertake the condemnation of property. The views here expressed are in accord with the holding of this court in Trigger v. Drainage District, supra, where the appellant moved to submit the case to a jury, which motion was overruled, and the court, after using the language above quoted from that case, said: “The county court had no power to grant the motion of counsel for the objector to empanel a special jury to hear the issues formed on the objections. If evils or hardships result from the statute, the remedy is in the legislature, and not with the courts.” The character of the proceedings, and the nature of the verdict rendered by the jury, show that there was a mixing up and commingling of certain requirements of the Eminent Domain act with those of the Levee and Drainage act. For example, the verdict of the jury fixed the amounts assessed for benefits. There is no provision in the Eminent Domain act which authorizes any assessment for benefits; the object of that act is merely to ascertain compensation for land taken or damaged for a public purpose. The verdict of the jury shows that they assessed benefits, not only against the land of the appellant which was not taken for the improvement in question, but they assessed benefits against the 14 acres of land which were taken by the district for the improvement. In other words, appellant was required to pay benefits not only for his own land, but for the land which had been taken from him for the purposes of the district, and which, if properly taken, necessarily belonged to the district, and not to appellant. Another serious error committed by the court below was in instructing the jury for the appellee that the assessment roll of the district, which had been admitted in evidence before the jury, made out a prima facie case for the district, or was prima facie evidence to sustain the assessment for benefits upon all the tracts of land in controversy, etc. The assessment roll was made under the provisions of the act of May 29, 1879, which this court has declared to be unconstitutional. It could only have been made under those provisions of the act of May 29, 1879, which provide for the making of assessments by commissioners, or under those other provisions which require the making of assessments by a jury organized as the jury is required to be organized under said act. The amounts of compensation, awarded by the jury in their verdict as damages for the 14 acres of appellant’s property, which were taken by the district, are the same as the amounts specified in the assessment roll. The effect of the instruction above referred to in regard to the assessment roll was to induce the jury to find the amount of compensation to be awarded to appellant to be such as was specified in the assessment roll, and not such as was proper according to their own judgment. For the reasons above stated, we are of the opinion that the judgment of the county court is erroneous. Accordingly, such judgment is reversed, and the cause is remanded to that court for further proceedings in accordance with the views herein expressed. Reversed and remanded.