Donner v. Board of Highway Commissioners

Mr. Justice Duncan delivered the opinion of the court: The Panther Creek Drainage District, in Woodford county, was organized under the Levee act by an order of the county court of that county entered February 21, 1916. On April 10, 1916, the commissioners of said district filed in said court the commissioners’ roll of assessments of benefits and damages, and gave notice, as provided by section 17a of said act, that on April 24, 1916, at the April probate term of said court, they would appear before said court, at the court house in said county, for the purpose of having a jury empaneled, as provided by section 6 of the Eminent Domain act, for a hearing on all questions of benefits and damages to the lands in said district. At the hearing on said assessment roll appellees filed objections that their lands were assessed more than they would be benefited by the construction of the work and more than their proportionate shares of the cost thereof, and moved the court to dismiss said petition for want of jurisdiction, for the following reasons: (i) No copy of the original petition to organize said district was filed; (2) the original petition to organize the district, the notices published and the findings of the court in its order of October 25, 1915, are not according to the statute; (3) the starting point of the main ditch as set forth in the petition, the report of the commissioners and notices published is not accurately given and the description thereof is vague, uncertain and wholly insufficient; (4) the boundary lines of the district are not accurately set forth in the petition, in the report of the commissioners, in the notices and in the facts found by the court but are vague and uncertain; (5) the commissioners are proposing to build eight lateral drains, none of which were petitioned for; (6) all the lands in the district are not assessed; (7) the commissioners never took and subscribed the oath of office; (8) tenants of portions of the land in the district have not been made parties to the proceedings or their rights therein set forth; (9) Woodford county is a proper and necessary party but has not been made a party to the proceedings; (10) the laterals not petitioned for are not described as open or covered drains; (11) the starting point of lateral “E” is vague and uncertain; (12) it does not appear that the commissioners viewed each parcel of land, and every part thereof, in making up their assessment of benefits and damages. The court sustained the motion to dismiss the petition on the second, third, fourth, fifth, seventh, ninth, tenth, eleventh and twelfth grounds assigned by appellees and held that the first, sixth and eighth grounds had been waived by appellees, entered an order vacating the order establishing the district and all other orders prior thereto, and dismissed the proceedings to assess benefits and damages at appellants’ costs. The order of the court recited: “The court takes judicial notice of the factxthat no sufficient oath has been taken by said commissioners in accordance with the provisions of section 6 of the Levee act; that said oath is jurisdictional ; that the nature of the improvement proposed in said petition is radically different from that reported by the commissioners ; and that it was an abuse of judicial discretion not to have modified the report of the commissioners.” There is no evidence in this record that supports the conclusion, order and judgment of the court in holding void and vacating all previous orders of the court and in dismissing the proceedings then before it. The final order of the county court decreeing the establishment of Panther Creek Drainage District was put in evidence by appellants, and that order was drawn and entered in accordance with every requirement of section 16 of the Levee act. The pe-' tition for the organization of the district, signed by seventy-three land owners and filed in the county court September 30, 1915, conforms to every requirement of the statute, and is not subject to the objection of appellees that it did not set out clearly the nature and character of the drain and the work to be done. The allegations of the petition as to those matters read thus: “The proposed starting point, route, size and terminus of the said ditch or drain are as follows: Commencing at the northwest corner of the northeast quarter of section twenty-nine (29), township twenty-seven (27), north, range three (3), east of the third principal meridian, in Livingston county, Illinois; thence south along the half section line to a point where the east branch of Panther creek intersects the half section line in said section twenty-nine (29) ; thence in a southwesterly direction, following the present course of the east branch of Panther creek through' sections twenty-nine (29) and thirty (30), in township twenty-seven (27), north, range three (3), east of the third principal meridian, in Livingston county, Illinois; thence westerly along the present course of said east branch of Panther creek, through sections twenty-five (25), twenty-six (26), twenty-seven (27), thirty-four (34), thirty-three (33) and thirty-two (32), in township twenty-seven (27), north, range two (2), east of the third principal meridian, in Livingston county, Illinois, to a point where the said east branch of Panther creek intersects the east line of the right of way of the Illinois Central Railroad Company, there to terminate. All of the route of said proposed ditch or drain is more fully shown and is shown on the plat hereto attached and marked exhibit ‘A’ and made a part of this petition by reference, and marked on said plat, ‘Route of Proposed Ditch,’ the proposed ditch dr drain to be constructed to follow throughout its entire course, so far as practicable, the present line or channel of the east branch of Panther creek. It is proposed by your petitioners to shorten and straighten said creek wherever it shall be deemed practicable and beneficial to the proposed drainage district. The said drain or ditch is proposed to be an open drain or ditch throughout its entire course, approximately nine (9) feet deep and nine (9) feet wide at the bottom, the banks to have a slope of one (1) to one (1) ; that is to say, an average width of twenty-seven (27) feet at the top.” Said plat accompanies the petition and shows an accurate tracing of the drain from its beginning to its terminal point. Appellants also introduced in evidence the commissioners’ roll of assessments, showing all the facts necessary to entitle them to a hearing on the question of benefits, and damages. No further evidence was introduced, and the evidence before the court, with & jury empaneled, would make a prima facie case for the commissioners under the provisions of section 17a of the Levee act. The statute confers jurisdiction on county courts to organize drainage districts. The petition in question, when filed in the county court, together with the statute, gave the court jurisdiction of the subject matter. The court also had jurisdiction of all parties interested in the organization of the district, as shown by the recitals and findings of the court, including appellees, and had jurisdiction of the parties to the proceedings now in question, as shown by the recitals in the record. This is not questioned by appellees anywhere in their briefs. The court therefore had jurisdiction and power to hear and determine all questions before it, from the filing of the petition up to and including the establishing .of the drainage district in question, and had jurisdiction and power to proceed to a determination of the question of benefits and damages before the court at the time the motion to dismiss was made by appellees. Whether the court correctly exercised its power and jurisdiction after it had obtained jurisdiction of the subject matter and of the parties could not be considered in this collateral proceeding. All errors in the exercise of jurisdiction, no matter how gross, cannot be urged in a collateral proceeding to impeach a court’s judgment or decree. (Cleveland, Cincinnati, Chicago and St. Louis Railway Co. v. Polecat Drainage District, 213 Ill. 83; Figge v. Rowlen, 185 id. 234.) It is only such defects appearing upon the face of the record as show a want of jurisdiction in the court to enter the judgment that can be taken advantage of in a collateral proceeding without resorting to an appeal or writ of error. Frank v. Rogers, 220 Ill. 206; Aldridge v. Matthews, 257 id. 202; Stack v. People, 217 id. 220. Appellees have assigned no cross-errors on this record. We have considered all the arguments and points presented by appellees that have any proper bearing upon the question of jurisdiction on collaterál attack. Many of the questions or grounds presented by appellees in support of their collateral attack on the judgment establishing a drainage district are not jurisdictional at all. For instance, failure to file a copy of the original petition, the report of the commissioners, whether or not all of the lands in the district are assessed, whether the commissioners were properly sworn, whether or not certain parties were made parties to the proceedings, and whether or not the commissioners made an examination of all of the lands in the district, are matters that do not in any way affect the question of jurisdiction here raised. Besides, there was no proof or showing on this record that such matters or facts existed or appear from the records of the district. This appeal only brings before this court the record of the procéedings before the lower court. A court will take judicial notice of its pwn records and thus dispense with proof identifying them, but it will not take judicial notice of the contents of any of its records except the "ones in the proceeding before it. (People v. Carr, 265 Ill. 220.) Appellees are relying upon facts recited in various proceedings and records of the court pertaining to the drainage district that were not introduced in evidence and are not any part of the record or proceedings now before us. They are not contained in the bill of exceptions, yet they have been copied by.the clerk as parts of the record at the instance of appellees and cannot be considered as any part of the record proper in this case. A motion was made by appellants to strike those matters from the record because not a proper part of it and to tax the unnecessary costs of including them in the record to appellees. That motion was taken with the case, and for the reasons assigned appellants’ motion is sustained. Much complaint is made in appellees’ brief because the commissioners made a report recommending eight lateral ditches, in addition to the main ditch, as proper and necessary for the drainage of the district, at an extra cost of about $61,000, and the court’s approval of the report in its final order establishing the district. If such action of the commissioners and of the court was irregular, erroneous and unnecessarily burdensome to appellees and to the district generally, appellees had the opportunity to have the same reviewed on appeal or writ of error, as by their own showing they appeared before the court and urged the same objections that they are seeking to raise here, and that they, or some of them, made the same motion, based upon the same grounds, to dismiss the proceedings for want of jurisdiction when the report of the commissioners was before the court for final approval. The lower court was authorized to approve such report on a proper showing, under section 12 of the Levee act. If it erred in making such order appellees should have then preserved their rights by proper objections and by prosecuting an appeal or writ of error at that time, when the order establishing the district was entered. (Drummer Creek Drainage District v. Roth, 244 Ill. 68.) The lower court had no right or power in this proceeding to review such order and declare void all previous orders that had been entered. The judgment of the county court is therefore reversed and the cause is remanded. Reversed and remanded.