Commissioners of Union Drainage District No. 1 v. Smith

Mr. Justice Scott delivered the opinion of the court: It is impossible to determine from this record which of the many objections made in the county court were deemed by that court to be valid. Only two of the commissioners acted in spreading the assessment. One of the commissioners so acting was Jacob Binder. The assessment was extended against approximately 700 acres of land. Of this land Mr. Binder is the owner of 204.13 acres. Madison Phillips is the owner of 120 acres. The assessment has been confirmed as to the lands of these two owners. It was objected, among other things, that each tract of land owned by the objectors was assessed for benefits in a greater amount than its proportionate share of the estimated cost of the work and the expenses of the proceeding and in a greater amount than it would be benefited by the proposed work. It was also objected that Jacob Binder was incompetent to spread the assessment by reason of the fact that he owned a large tract of land in the district which was subject to assessment. The record affords some foundation for the contention made by objectors that the proposed work will very greatly benefit the lands of Binder and Phillips but will be of much less benefit to the lands of each of the objectors than the amount of the assessment extended against such lands. The objection which attacks Binder’s competency to act as one of the commissioners in spreading the assessment of benefits raises a constitutional question. Section 16 of chapter 42, Hurd’s Revised Statutes of 1905, provides that in a proceeding such as this the court shall empanel a jury of twelve men. This jury, when empaneled, has the power to assess the benefits. The same section gives the court authority, “as provided by section 37 of this act,” to direct that the assessment of benefits shall be made by the commissioners of the district instead of by a jury, and under the last mentioned section the commissioners may make the assessment of benefits if the right of way required “has been released” by the owners of the lands, or when the owners of the lands in the district agree that the commissioners may make the assessment, or “in case the court so orders.” We have held in several cases that these provisions are constitutional in so far as they empower the court to direct the commissioners to make the assessment. (Hosmer v. Hunt Drainage District, 135 Ill. 51; Briggs v. Union Drainage District, 140 id. 53; Trigger v. Drainage District, 193 id. 230.) In none of those cases, however, was the question of the competency of a commissioner to act in assessing benefits where his lands were among those subject to assessment presented. In Lacey Drainage District v. Langellier, 215 Ill. 271, we held that the land owners could object to the competency of the persons making the assessment upon the-application for confirmation. The present constitution of the State (sec. 2, art. 2,) provides that no person shall be deprived of property without due process of law. Like provisions were found in the constitution of 1818 and that of 1848. The term “due process of law” has been often defined. It is doubtful whether any definition affords a test which will enable the courts to determine, in every instance, whether or not any particular statute is in violation of this provision of the constitution. In Burdick v. People, 149 Ill. 600, Frorer v. People, 141 id. 171, Eden v. People, 161 id. 296, and Harding v. People, 160 id. 459, we said that the words “due process of law” were synonymous with “law of the land.” Due process of law, however, does not mean a proceeding pursuant to any law which the legislature may see fit to pass, whether valid or invalid, but does mean “in the due course of legal proceedings according to those rules and forms which have been established for the protection of private rights.” (Burdick v. People, supra.) Judge Cooley, in his work on Constitutional Limitations, at page 356, uses this language: “Due process of law in each particular case means such an exertion of the powers of government as the settled maxims of law permit and sanction, and under such safeguards for the' protection of individual rights as those maxims prescribe for the'class of cases to which the one-in question belongs.” - In determining what' rules and forms have been established for the protection of- private rights or what safeguards for the protection of individual rights the settled, maxims of the law prescribe in such cases as this, we recognize the primal necessity to be laws providing impartial tribunals for the adjudication of rights. Section 9 of article 2 of the constitution of 1870 provides that in all criminal cases the accused shall be entitled to a speedy public trial by an impartial jury. The laws of the State have always placed about the jury box, both in civil and criminal cases, the greatest safeguards that the ingenuity of our lawmakers could devise for the purpose of excluding partial, prejudiced, dishonest and interested jurors. Our laws provide for changes of venue, by which the litigant may avoid the necessity of trying his case before a judge or chancellor believed to entertain a prejudice against him. Every constitutional provision that has ever been in effect in this State dealing with the method by which the property of an individual may be forcibly taken away from him, of necessity contemplated the determination of the question of the right to take that property by an impartial judicial body. By section 20 of article 2, supra, we are admonished that “a frequent recurrence to the fundamental principles of civil government is absolutely necessary to preserve the blessings of liberty.” While it is true that in a proceeding such as the one at bar the property owner is not entitled to “a trial by jury,” within the meaning of that phrase as it is used in the constitution, still it is entirely clear that in providing for a commission to determine the amount of money that shall be collected from each property owner the law of the land forbids the enactment of a statute that permits the selection of a commissioner who personally has a property interest in the result of the deliberations of the body of which he is a member. Self-interest would lead him to seek a low assessment for his own land and assessments correspondingly high for the lands of others. A statute which compels the litigant to submit his controversy to a tribunal of which his adversary is a member malees his antagonist his judge and does not afford due process of law. We think the provisions of sections 16 and 37, supra, in so far as they appear to confer upon the court the power to direct one of the commissioners of a drainage district to act with the other commissioners in assessing benefits when the lands of the first mentioned commissioner are or may be subject to assessment, are in violation of section 2 of article 2, supra. In this view of the matter Binder was not competent to act as a commissioner in spreading the assessment. The objection which we have sustained is one which must be made before the judgment of confirmation is entered. If not so made it is deemed waived and will never thereafter be of any avail. If the assessment has • been spread by commissioners who own land in the district and has been confirmed without any objection being filed which raises the question of their competency, the judgment of confirmation is valid and binding, precisely as it would have been had the commissioners owned no land within the district. We have held that in a proceeding under the act concerning local improvements it is error to appoint a person to spread the assessment who has a pecuniary interest in the manner in which the assessment is made. Murr v. City of Naperville, 210 Ill. 371, and cases there cited. It is unnecessary to consider other questions arising upon the record. The judgment of the county court will be affirmed. Judgment affirmed.