People ex rel. Arnold v. Carr

Mr. Justice Carter delivered the opinion of the court: The county collector of LaSalle county made application at the May term, 1907, of the county court of that county for judgment and order of sale against the lands of plaintiffs in error on three installments of a special assessment alleged to be due Drainage District No. 1 of the town of Ophir, in said county. Objections were filed, and after a hearing the court overruled all the objections and entered judgment, to reverse which judgment this writ of error was sued out. In 1906 judgment was entered against some of these same lands as to the first installment and the objectors appealed to this court, where the judgment was reversed and the cause remanded. (Carr v. People, 224 Ill. 160.) The early history of these proceedings is there set forth and need not be here repeated. This is a proceeding under the Farm Drainage act, (Hurd’s Stat. 1905, p. 799,) and the court in the former case found the classification roll illegal. After the cause was reversed by this court two of the drainage commissioners were called by telephone to the office of the attorney of the drainage district in Ottawa, outside of the district and some twelve or fourteen miles distant from it by the shortest line. The third commissioner and the clerk were not notified and were not present. On this date, December 24, 1906, the two commissioners, under the advice of their attorney, attempted to levy a special -assessment upon the lands of the drainage district, as provided for under section 26 of said Farm Drainage act. (Hurd’s Stat. 1905, p. 807.) The clerk testified that he had no record of any kind of this special assessment proceeding. Section 2 of this act (p. 799) provides that the town clerk, as clerk of the drainage commissioners, shall be the custodian of all papers and records, and shall keep in a well-bound book, known as the “Drainage record,” a record of proceedings of the commissioners, and shall enter at length therein all findings and orders of the commissioners pertaining to the subject of drainage. Said section 26 of this act provides that when the assessment roll (designated as the tax list) has been completed in accordance therewith, it shall be filed with the town clerk. The assessment roll or tax list provided for in this section was not filed with the town clerk, and it is apparent from this record that he had never seen it or had it in his possession, or made any record of it, previous to this application for judgment of sale. When the law requires records of proceedings to be kept by drainage commissioners, as in this instance, they are the only lawful evidence of the action to which they refer, and such records cannot be contradicted, added to or supplemented by parol. (People v. Madison County, 125 Ill. 334; Dunn v. Youmans, 224 id. 34; O'Connell v. Chicago Terminal Railroad Co. 184 id. 308; Chaplin v. Highway Comrs. 129 id. 651.) Since the amendment of this Farm Drainage act in 1901, (striking out section 27, which provides for an appeal to the county court from any special assessment levied under section 26,) the first opportunity to be heard by the property owner after the special assessment is levied under section 26 is when the matter comes 'up on application for judgment of sale. In that respect it is similar to the proceedings to build sidewalks by special taxation under the special Sidewalk act of 1875. (Biggins’ Estate v. People, 193 Ill. 601.) In a proceeding of this character, as under special tax proceedings, in the absence of affirmative showing of strict compliance with the requirements of the statute the special assessment levied thereunder must be held void. Chicago and Alton Railroad Co. v. People, 190 Ill. 20. While the revenue law is liberal in allowing irregularities, informalities or omissions not affecting the substantial justice of the tax to be corrected or supplied upon application for judgment, it does not authorize the court to levy a tax where none has been levied by the proper officers. (People v. Glenn, 207 Ill. 50; People v. McDonald, 208 id. 638; Holland v. People, 189 id. 348.) To make the special assessment under section 26 legal, there must not only be a legal meeting of the drainage commissioners held, but the record must be kept and preserved by the clerk in his book of records, as required by this act. It is not necessary that the clerk keep it with his own hand or write out the findings himself, but it must be his record. (Hepler v. People, 226 Ill. 275.) The letter of the statute does not appear to designate where the meetings of the drainage commissioners shall be held, but we think the spirit of the act requires them to be held within the boundaries of the drainage district. We think, also, that in order to hold a legal meeting it is necessary that the drainage commissioners and the clerk should all be given due notice of the meeting so they may have an opportunity to attend. After such notice we are inclined to think a majority of the commissioners might hold a legal meeting. (Hinkle v. City of Mattoon, 170 Ill. 316; Gage v. City of Chicago, 192 id. 586.) To hold that this special assessment upon which the judgment is based is valid without any legal meeting of the drainage commissioners being called or held or any legal record kept, in acordance with the provisions of the statute pointing out the necessary steps to be taken, would be to hold that the statute could be entirely disregarded in this respect and the property of the citizen taken to satisfy the tax. Biggins’ Estate v. People, supra; Cincinnati, Indianapolis and Western Railway Co. v. People, 205 id. 538. Several other objections have been strenuously urged against the validity of this tax. It would unduly extend this opinion to discuss them in detail, and as most or all of them are unlikely to arise in any further proceedings as to this drainage tax against the property of objectors, we do not deem it necessary to consider or decide them. The judgment is reversed and the cause remanded. Reversed and remanded.