(273 Ill. 68) versed and the cause was remanded, with HERSCHBACH et al. v. KASKASKIA IS- directions to overrule the demu..er. Hersch LAND SANITARY AND LEVEE DIST. et al. (No. 10306.) (Supreme Court of Illinois. April 20, 1916.) 1. INJUNCTION 113-LACHES - ENFORCE MENT OF ORDINANCE. Where a bill to restrain the enforcement of two ordinances of a levee district was filed three days after the adoption of the second ordinance, which was the only one in controversy on appeal, complainants were not guilty of laches. [Ed. Note. For other cases, see Injunction, Cent. Dig. §§ 198-201; Dec. Dig. 113.] bach v. Kaskaskia Island Sanitary and Levee 2. LEVEES 6-LEVEE DISTRICTS-ORGANI- the district, and said Ordinance No. 1 levied ZATION-CONSTITUTIONALITY. A petition by the majority of the residents of a levee district, who were the owners of the greater part of the land, asking that the Legislature give them permission to apply the excess income from the proceeds of the sale of their commons over the requirements for school purposes to the construction of levees, and by special act, if necessary, to provide for the organization of a levee district and a selection of three commissioners by the court, does not show consent by the petitioners to the enactment of Laws 1913, p. 278, § 3, providing for the creation of a levee district and the appointment of commissioners therefor by the court, who should have power to levy assessments on the land to construct the levees, so as to show that the commissioners so appointed were corporate authorities, within Const. art. 4, § 31, authorizing the Legislature to pass laws permitting the landowners to construct drains and levees, providing for the organization of drainage districts, and vesting in the corporate authorities of such districts power to levy assessments on the property benefited. [Ed. Note. For other cases, see Levees, Cent. Dig. § 16; Dec. Dig. 6.] Appeal from Circuit Court, Randolph County; George A. Crow, Judge. Suit by Henry Herschbach and others against the Kaskaskia Island Sanitary and Levee District and others. Decree for the defendants, and complainants appeal. Reversed and remanded, with directions to enter a decree for complainants. See, also, 265 Ill. 388, 106 N. E. 942. R. E. Sprigg and J. Fred Gilster, both of Chester, for appellants. Emery Andrews, of Mattoon, Arthur E. Crisler, of Chester, and Raymond G. Real, of Mattoon, for appellees. an assessment for the purpose, among others, of paying such expenses. Upon the former appeal we held that the Legislature exceeded its constitutional power in authorizing the levy of an assessment for expenses incurred prior to the incorporation of the district, and that Ordinance No. 1 was therefore void. The act is preceded by a preamble, which recites that: "Whereas, a majority of the legal voters of the island of Kaskaskia and a majority of the landowners owning the major portion of the eral Assembly of Illinois to organize for them land upon said island, have petitioned the Gena sanitary and levee district comprising the lands of the said island; and, whereas, in order to provide adequate an effectual protection to the health and to promote the welfare of the inhabitants of the island of Kaskaskia and adequate and effectual protection to the lands, lots, overflow, and to protect the same against inand grounds of the said island from wash and levee district be organized to embrace all the undation, it is necessary that a sanitary and lands of the said island for the construction of drains, ditches, levees and other work for sanitary and agricultural purposes" this preamble being followed by the body of the act. Section 3 of the act relates to the selection of commissioners for the district. It pro vides that the business of the corporation shall be conducted by three commissioners, who shall be resident landowners residing upon Kaskaskia Island, and who shall be appointed by the circuit court of Randolph county in term time, or by the judge thereof in vacation, by an order signed by the judge of said court, or, if in vacation, by the judge thereof who presided at the preceding term COOKE, J. Appellants, who are owners thereof, and filed with the clerk thereof and of land situated on Kaskaskia Island, in Ran- duly entered of record. The constitutionality dolph county, filed their bill for injunction of this section of the act was attacked in in the circuit court of said county to restrain the bill on the ground that it contravenes secthe Kaskaskia Island sanitary and levee tion 31 of article 4 of the Constitution, which district, and the commissioners and other of- provides that the General Assembly may pass ficers thereof, from proceeding to enforce the laws permitting the owners of land to concollection of an assessment theretofore levied struct drains, ditches and levees for agriculunder an ordinance passed by said commis-tural, sanitary, or mining purposes across the sioners, known as Ordinance No. 1, and from lands of others, and provides for the organimaking any additional assessment against zation of drainage districts, and vests the the complainants' lands. A demurrer inter-corporate authorities thereof with power to posed to the bill was sustained and the bill was dismissed for want of equity. Upon ap peal to this court by the complainants in the bill the judgment of the circuit court was re construct and maintain levees, drains, and ditches, and keep in repair all drains, ditches, and levees heretofore constructed under the laws of this state, by special assessment upon For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the property benefited thereby, and this con- | appointed by the express consent of a mastitutional question was the principal ques- jority of the legal voters of the said island tion presented upon the former appeal. The and a majority of the landowners owning particular objection made to section 3 of the a major portion of the lands upon the island, act was that commissioners appointed by the and that express consent was given in a pecircuit court of Randolph county, or by the tition which they presented to the Fortyjudge thereof, under the act, are not corporate Eighth General Assembly of Illinois and authorities of the district within the meaning which was filed with the secretary of state of section 31 of article 4 of the Constitution, and which is referred to in the preamble of and we held that this objection was well tak- the act; that said petition was signed by a en; that by "corporate authorities," as used in majority of the legal voters and landowners section 31 of article 4 of the Constitution, must of the island owning the major portion of be understood those municipal officers who lands of the island, including certain of the are either directly elected by the people of complainants in the bill; that said legal the municipality or appointed in some mode voters expressly requested the Forty-Eighth to which they have given their assent; that General Assembly to organize a levee disthe recital in the preamble of the act is not trict for them and to include in the said act sufficient to show that the people of the dis- a provision for the appointment of three trict have given their assent to the appoint- commissioners by the circuit court of Ranment of commissioners for the district by the dolph county; and that it was pursuant to circuit court of Randolph county or by the that request that the provision for the apjudge thereof; and that, as the act cannot pointment of commissioners by the circuit stand with those sections relating to the ap- court of Randolph county, or by the judge pointment and powers and duties of the com- thereof in vacation, was inserted in said act. missioners eliminated, the entire act is un- A motion made by the complainants to constitutional and void. strike the answer from the files, for the reason that the matters contained therein had been adjudicated by this court upon the former appeal, was denied. Thereupon the complainants filed exceptions to the answer; those challenging the portion of the answer attempting to obviate the objection to the assessment made under Ordinance No. 1 being sustained, and the remainder of the exceptions being overruled. The complainants then filed a replication, and the cause proceeded to a hearing before the court upon the bill, answer, and replication. The court, by the final decree entered in the cause, found that the commissioners are the lawful corporate authorities of the district; that they were appointed in a manner expressly consented to by a majority of the legal voters of Kaskaskia Island and by a majority of the landowners owning a major portion of the lands upon said island, and that such consent was given in the petition pre After the cause had been redocketed, the circuit court, in compliance with the mandate of this court, overruled the demurrer to the bill, whereupon the defendants obtained leave to answer. The answer attempted to obviate the objection to Ordinance No. 1 by averring that no portion of the preliminary assessment was paid for expenses incurred prior to the organization of the district. The circuit court sustained exceptions to this portion of the answer, and by the final decree, from which this appeal has been prosecuted, found that Ordinance No. 1 was void, and enjoined the defendants from taking any proceedings to levy and collect any assessment under that ordinance. The appellees have not assigned any cross-errors here, but concede that this action of the circuit court was proper. The answer avers that on February 16, 1914, an ordinance, referred to as Ordinance No. 2, was passed by the commissioners, levy-sented to the Forty-Eighth General Assembly ing an assessment of $165,000 upon the lands and filed with the secretary of state; that by of the district; that in pursuance of this or- said petition the petitioners expressly redinance the commissioners made and filed quested the General Assembly to organize an assessment roll, which was confirmed by said district for them and to incorporate in the circuit court of Randolph county, ex- said act a provision for the appointment and cept as to the lands of the complainants and selection of three commissioners by the circertain others, representing less than 1,000 cuit court of Randolph county to carry out acres; and that it has been stipulated that the provisions of the act; and that the act if in this case final judgment shall be render- therefore does not violate section 31 of ared in favor of the defendants, then said sec- ticle 4 of the Constitution. The court, upon ond assessment shall be confirmed by the this finding, denied the prayer of the bill in court. With reference to the charge, which so far as it sought an injunction to restrain was sustained upon the former appeal, that proceedings to enforce the collection of the the act contravenes section 31 of article 4 special assessment of $165,000 under Ordiof the Constitution, in that it does not pro-nance No. 2. From that decree this appeal vide for the election of the commissioners has been prosecuted by the complainants by the people of the district or for their ap- in the bill. pointment in some mode to which the people of the district have given their assent, the answer avers that the commissioners were [1] While appellees urge that appellants are barred by laches from obtaining the relief sought, it appears from the record now before us that the bill of complaint was filed | ginning at page 278, had not been drafted; three days after Ordinance No. 2 was passed that when the petition was circulated it providing for an assessment of $165,000. had a heading stating that it was a request for This assessment is the only one in controver- the amendment of the School Law, permitsy upon this appeal, and the mere statement ting the inhabitants of the island to use part that the bill was filed three days after the of the proceeds from the sale of the Kasordinance providing for this assessment was kaskia commons to build a levee; that it was passed is a sufficient answer to the conten- explained to those who were asked to sign tion that appellants are barred by laches the petition that such was its purpose; and from maintaining their bill. that this was one reason why the people of the island signed the petition. [2] The only real controversy between the parties upon this appeal relates to the validity of section 3 of the act creating the Kaskaskia Island sanitary and levee district. Upon the hearing the defendants to the bill, who are appellees here, offered in evidence a certified copy of the petition relied upon in their answer to show that the commissioners had been appointed in a mode to which the people of the district had given their assent, and that said section 3 was therefore not in conflict with section 31 of article 4 of the Constitution. This petition, addressed to the Forty-Eighth General Assembly, was in part as follows: It is evident that the main purpose of the petition was to obtain legislation authorizing the use of a portion of the income from the proceeds of sale of the Kaskaskia commons in the construction of levees to protect the lands of Kaskaskia Island from inundation. The organization of a levee district and the appointment of commissioners for such district were mere incidents to the main purpose of the petition. The petition did not request the Legislature to organize a drainage district and provide for the appointment of commissioners by the circuit court for the purpose of constructing levees by special assessment upon the lands to be benefited; but the Legislature was requested to include in the act authorizing the use of a portion of "We, the undersigned legal voters residing on the island of Kaskaskia, in the county of Randolph, in the state of Illinois, and landowners owning lands upon said island, do hereby respectfully petition your honorable body to modi- the income from the proceeds of sale of the fy or amend an act entitled 'An act to provide Kaskaskia commons in the construction of for the sale of the Kaskaskia commons, upon levees, or by separate act, if necessary, prothe island of Kaskaskia, in the county of Ran- visions organizing a levee district and prodolph, and to create a permanent school fund for the inhabitants of said island out of the providing for the appointment of commissioners ceeds of said sale, and to punish any person fail- by the circuit court of Randolph county to ing to comply with the provisions thereof' (in carry out the provisions authorizing the use force July 1, 1909), so as to enable us to use a portion of the income of said funds to aid us in levying said island, and also to include in said legislation, or by separate act, if necessary, the organization of a levy district comprising the lands upon said island, and the selection and appointment of three commissioners, all to be resident landowners of Kaskaskia Island, and to provide for their appointment and succession by the circuit court of the said Randolph county, to carry out the provisions thereof for us; and for reasons therefor we would respectfully show to your honorable body," etc. The reasons stated in the petition which follow that portion of the petition above quoted are, in substance, that the annual income from the moneys received from the sale of the Kaskaskia commons, upon the island of Kaskaskia, exceeds the amount required annually for the maintenance of schools by approximately $9,000, and that it would be more beneficial to the inhabitants of the island if such excess could be used in constructing levees and protecting the lands of the island from overflow than it would be to use it for school purposes. It appears from the evidence that this petition contained the genuine signatures of a majority of the landowners owning a major portion of the lands on Kaskaskia Island, but it further appears that when it was signed the bill which was thereafter passed by the General Assembly organizing the Kaskaskia sanitary and levee district, and which as enacted, appears in the Laws of 1913, be of a portion of the income from the proceeds of sale of the commons in the construction of levees. The Legislature did not modify or amend the act providing for the sale of the Kaskaskia commons, upon the island of Kaskaskia, so as to authorize the use of a portion of the income from the proceeds of sale in the construction of levees, nor did it by any act provide for the use of any portion of such income for such purposes. The Legislature could not ignore the main purpose of the petition, and treat the petition as a request by the petitioners for the organization of a drainage district by the Legislature, and for the appointment of the commissioners thereof by the circuit court of Randolph county to raise, by special assessment upon the lands of the island, the money necessary to construct levees to protect the island from overflow. The act in question was not in accordance with the request made by the landowners in their petition to the Legislature, and the petition, therefore, does not obviate the constitutional objection to section 3 of the act pointed out in Herschbach v. Kaskaskia Island Sanitary and Levee District, supra. The decree of the circuit court is reversed, and the cause is remanded to that court, with directions to enter a decree as prayed for in the bill of complaint herein. Reversed and remanded, with directions. (272 111. 604) ceedings to confirm the assessment to admit in CITY OF HOOPESTON v. SMITH et al. evidence a blueprint containing such specifications which the ordinance failed to make. (No. 10332.) [Ed. Note.-For other cases, (Supreme Court of Illinois. April 20, 1916.) Corporations, Cent. Dig. § 1174; Dec. Dig. see Municipal 1. MUNICIPAL CORPORATIONS 294(4)—PUB-502(2).] LIC IMPROVEMENTS-SPECIAL ASSESSMENTS 3. MUNICIPAL CORPORATIONS IMPROVEMENTS-PROCEEDINGS ES-VALIDITY. Appeal from Vermilion County Court; Lawrence T. Allen, Judge. Proceedings for the confirmation of a special assessment by the City of Hoopeston, opposed by Julia D. Smith and others. Judgment confirming the assessment, and the opponents appeal. Reversed. Robert R. Rodman, of Hoopeston, for appellants. C. F. Dyer, City Atty., and J. H. Dyer, both of Hoopeston, for appellee. DUNCAN, J. The city council of the city of Hoopeston passed an ordinance providing for the improvement of Maple street from the east curb line of Second avenue to the [Ed. Note.-For other cases, see Municipal west line of Fifth street, by grading, curbCorporations, Cent. Dig. § 832; Dec. Dig.ing, graveling, draining, and paving with 318.] brick. The ordinance provides that the 306-PUBLIC whole cost of grading, curbing, graveling, ORDINANCand paving with brick, estimated at $10,562, Local Improvement Act, § 74 (Hurd's Rev. including expenses and court costs, should St. 1913, c. 24, § 580), provides that a public be paid by special taxation to be levied upon improvement may be constructed by the city only after advertising for bids and determination that the property contiguous to and abutting the it can be constructed by the city at a lower improvement, in proportion to the frontage cost, and then only to the amount of $500. An of each lot. The ordinance specifically and ordinance for grading, paving, and draining a in detail sets forth the specifications and restreet provided that drains and catch-basins should be furnished by the city, and failed to quirements for those portions of the improvemake an assessment against the city, after pro- ment, with an estimate of the cost thereof. viding that the entire cost, except for drain- There was no estimate, itemized or othering, should be paid by special assessment. Held, that the ordinance was invalid, since the city wise, of the cost of the draining of the imcould not properly sever the improvement, which provement. Another part of the ordinance, was single, and could not under the statute, headed "Drainage," provides: construct it as attempted. "For the proper drainage of the pavement, inlets and catch-basins shall be placed as shown on blueprint plans for the work. The inlets and catch-basins will be furnished by the city of 304(6)-PUB-Hoopeston, and will be of standard type adopted LIC IMPROVEMENTS-ORDINANCE ESTIMATES by said city for previous pavements. The drains [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 818, 820; Dec. Dig. 306.] 4. MUNICIPAL CORPORATIONS -SUFFICIENCY. Under Local Improvement Act, § 80 (Hurd's Rev. St. 1913, c. 24, § 586), authorizing abutting owners to take over the work of an improvement, they are entitled to have each component part of the improvement severally described and estimated, so that an ordinance failing to specify the number, location, and estimated cost of drains for a pavement is invalid. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 812; Dec. Dig. 304(6).] 5. MUNICIPAL CORPORATIONS IMPROVEMENTS-ASSESSMENT. 306-PUBLIC The whole cost of paving, grading, and draining a street may be assessed against abutting owners, but, the city having determined to pay a portion thereof, it should have shown what proportion would be so paid and levy it against the city in the same ordinance. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 818, 820; Dec. Dig. 306.] connecting inlets with catch-basins shall be built of eight-inch No. 2 sewer pipe, and shall be laid to grade as shown on blueprints. The refilling material for these drains must be thoroughly tamped in four-inch layers. These drains, as well as necessary outlet drains for catch-basins, will be furnished and built by the city of Hoopeston." In pursuance of the ordinance a petition was filed in the county court of Vermilion county, and appellants appeared and entered a special and limited appearance in this proceeding for the purpose of questioning the jurisdiction of the court, and also filed objections to the confirmation of the special tax. All objections of appellants were overruled by the court and judgment was entered confirming the assessment against the, property of appellants, from which judgment this appeal is prosecuted. [1, 2] Appellants' first objection argued in 6. MUNICIPAL CORPORATIONS 502(2)—PUBLIC IMPROVEMENTS CONFIRMATION OF AS- this court is that the court had no jurisdicSESSMENTS PROCEEDINGS-EVIDENCE-AD- tion, because the notice given to the property owners under section 41 of the Local Improvement Act did not state what proportion of the cost of the improvement was assessed MISSIBILITY. Where statute requires estimation of cost and specifications of a local improvement in the ordinance providing therefor, it is error in pro For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the board of local improvements that said work can be performed better and cheaper by the city, town, or village or the authorities thereof, and when the work will not cost more than $500. against the public. Said section 41 provides when, after receiving bids, it shall appear to that the assessment roll shall contain a list of all the lots, blocks, tracts, and parcels of land assessed for the proposed improvement, the amount assessed against each tract, and in case of assessment in installments the amount of each installment shall also be stated, and that the officer making said roll shall certify, under oath, that he verily believes that the amounts assessed against the public and each parcel of property are just and equitable and do not exceed the benefits which will in each case be derived from said improvement, etc. Said section further provides that the notices to the persons paying the taxes on the lands to be improved shall state the amount assessed to the person, to whom the same is directed for the improvement proposed, the total amount of the cost of said improvement, and the total amount assessed as benefits upon the public. It further provides that an affidavit shall be filed before the final hearing showing a compliance with the requirements of said section. Had appellants been content to stand upon the question of jurisdiction without further appearance to contest on the merits, their motion should have been sustained. It further appears from the record, however, that they filed further objections to the confirmation of the assessment, and thereby attacked the legality of the proceedings on the merits. They thereby waived the question of the jurisdiction of the court. Quick v. Village of River Forest, 130 Ill. 323, 22 N. E. 816; MacKenzie v. MacKenzie, 238 Ill. 616, 87 N. E. 848; Abbott v. Semple, 25 Ill. 107. [4, 5] By section 80 of the Local Improvement Act the owners of a majority of the frontage of the lots and lands abutting on the improvement have a right to elect to do the work for the whole improvement and enter into a contract therefor at 10 per cent. less than the price at which the same shall be awarded to the lowest bidder. The abutting owners therefore had the right to have all the component parts of the improvement described and estimated. Appellants' third objection, that the ordinance is invalid for the reason that it fails to describe the proposed drainage and give the number of catchbasins and to estimate the cost of the drainage part of the improvement, should have been sustained. Appellants and other property owners would not be able to determine whether or not their property would be benefited by the improvement to the amount assessed against them without knowing how the drainage would be constructed and what the probable cost thereof would be. The city had the right to tax the whole cost of the improvement against the abutting property, but, having determined to pay a portion thereof, it was incumbent on it to state what proportion of the cost of the improvement would be taxed against the city as public benefits and to levy that tax in the same ordinance, as it had no right to build any essential part of the improvement in any other manner than as provided in the Local Improvement Act. The statute gave the city no right to build any part of the improvement in question, as it was inseverable for that purpose. [3] It is also urged by appellants that the ordinance is invalid because it provides that the entire cost of grading, curbing, graveling, and paving with brick shall be paid by special taxation, and that the drainage shall be furnished and built by the city of Hoopeston, and makes no assessment against the city. [6] The court also erred in admitting in We think this objection should be sustained. | evidence, over objection of appellants, the The drainage described in said ordinance is profile and blueprint referred to in the ora component part of the improvement, as dinance, which was prepared for said imshown by the ordinance. The improvement provement and filed in the office of the city would not be complete without the catch- clerk, but which was in no way made a part basins and the inlets, etc., provided for the of the ordinance, for the purpose of showdrainage thereof. As the drainage provided ing the location and depth of the drainage. for in said ordinance was a necessary and esFor the errors indicated, the judgment of sential part of said improvement, the city the county court is reversed. had no right to treat it as a severable part Judgment reversed. of the improvement, and as one that could be built by it without first advertising and et al. (No. 10385.) (273 III. 101) (Supreme Court of Illinois. April 20, 1916.) WOODS AND FORESTS 8-FOREST PRESERVE -NAMING DISTRICT-PETITION. receiving bids for the construction of the PEOPLE ex rel. PERKINS v. REINBERG work. The city cannot build any improvement or any part thereof, whether it costs less or more than $500, without complying with section 74 of the Local Improvement Act. That section does not authorize a city or village to perform the work and employ the necessary help for any improvement without first having received bids therefor as in said section provided, and then only Under Forest Preserve Act June 27, 1913 (Hurd's Rev. St. 1913, c. 57a), authorizing the formation of forest preserve districts, and providing that the name of the district shall be the name proposed in the first petition, proceedings for the organization of a district were not il For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |