« ForrigeFortsett »
seven cents per cubic yard. On the same day a contract was entered into with one Melvin Blain to construct the concrete walls on the sides of those portions of the main channel covered by the Shannon contract, the price to be paid therefor being $5.70 per cubic yard. Contracts were also made with each of the appellant railroad companies to excavate the ditch and construct the walls, according to the plans and specifications of the district, across the lands of such railroad company in partial satisfaction and payment of the assessment confirmed against its lands, the balance of the assessment against such lands being satisfied by the release by the railroad company of a right of way through its lands for the ditch and walls of the district. On February 15, 1909, the drainage district filed its petition in the county court of Will county for an additional assessment of $50,000 against the lands in the district, alleging therein that $56,323.63 was required to complete the main channel and for incidental expenses and $30,000 to complete the north branch, and that the resources of the district consisted of $28,323.63 cash, after deducting from the amount on hand the amount due contractors for work performed and real estate valued at $8000. The subsequent proceedings, which, so far as material to the questions presented for our determination, will be hereinafter set out, resulted in a judgment confirming an additional assessment of $10,700 against lands of the Elgin, Joliet and Eastern Railway Company, $1900 against lands of the Michigan Central Railroad Company, $1474 against lands of the Chicago, Rock Island and Pacific Railway Company, and $3200 against the streets and alleys of the city of Joliet within the district, and this appeal is prosecuted from that judgment.
Some of the questions presented upon this appeal relate to rulings of the court affecting all the appellants, while others relate to rulings affecting only one or a part of them. First—The city of Joliet contends that the assessment against it on account of benefits to the streets and alleys within the district is not authorized by the statute and is consequently void, and bases this contention entirely upon the case of City of Joliet v. Spring Creek Drainage District, 222 Ill. 441, wherein it was held, upon the authority of Drainage Comrs. v. Village of Cerro Gordo, 217 id. 488, that section 55 of the Levee act, as it existed prior to the amendment of May 29, 1909, did not authorize an assessment against a city or village on account of benefits to streets and alleys. The city contends that it was there held that the failure of the Levee act to provide any method by which to compel a city to levy and collect a tax to meet a drainage assessment was a fatal objection to an assessment against it on account of benefits to its streets and alleys. While some of the language used in the opinion in that case may be susceptible of the construction which the city has placed upon it, yet the ground upon which the decision was based clearly appears to be that section 55 of the Levee act made no express provision for an assessment against a city on account of benefits to streets, and no such provision could be implied from the use of the words “public roads" or "township roads” in the section, because the section required the commissioners of highways to include the assessment against the public roads or township roads in their levy for road and bridge purposes but made no provision for the levy and collection of taxes by a city or incorporated village with which to meet such assessment, and it was said: “Nowhere in section 55 of the Levee act are streets of an incorporated village or city mentioned, and the provisions made by said section for the collection of the assessments made against 'public roads' or 'township roads,' if it were otherwise doubtful whether they [streets of an incorporated city or village] were intended to be included in the act, make it clear there was no such intention.”
On May 29, 1909, the legislature amended said section 55 so that it now provides that when the proposed work “drains or levees or proposes to drain or levee, either in whole or in part, any public or corporate road or railroad, or the streets and alleys of any municipal corporation, so as to benefit any of such roads,
the conmissioners shall apportion to the county, State, or free turnpike road, to the township, if a township road, to the company, if a corporate road or railroad, or to the municipal corporation in the case of streets and alleys, such proportion of the cost and expenses thereof as to private individuals, * * and the said jury shall view and examine such road, railroad, streets and alleys, and shall proceed to assess the damages and benefits in like manner as to the lands of individuals.” Express authority to make an assessment against a city on account of benefits to its streets and alleys within the district is therefore conferred by the amended section, and the confirmation of such assessment amounts to a judgment against the city for the amount of the assessment. The authority to levy and collect a tax for the payment of this judgment is conferred upon the city by sections 2 and 3 of article 7 of the act to provide for the incorporation of cities and villages, and the drainage district may, by mandamus, compel the city to exercise such authority. The fact that the Levee act has not provided a method for the levy and collection of a tax to meet the drainage assessment, or has not designated the particular fund out of which the assessment shall be paid, is not a valid objection to the assessment against the city of Joliet.
Second—It is urged by appellants that the assessment was levied to pay past indebtedness and to replace funds illegally expended by the district. If any portion of the assessment was made to pay past indebtedness, the assessment to the extent that it was levied for that purpose was unauthorized and void. (IVinkelmann v. Drainage District, 170 Ill. 37; Alirens v. Drainage District, 170 id. 262; Vandalia Drainage District v. Hutchins, 234 id. 31; Drainage Comrs. v. Kinney, 233 id. 67; Schafer v. Gerbers, 234 id. 468.) The record, however, fails to show that this assessment, or any portion thereof, was levied to pay indebtedness already incurred, and the order of the county court granting the prayer of the petition for the additional assessment contains a finding of fact "that the said sum of $50,000 asked for herein is for the payment of future obligations and not for obligations previously incurred.” The Elgin, Joliet and Eastern Railway Company was the only one of the appellants that appeared at the hearing upon the petition, and the evidence taken at that hearing was not preserved by bill of exceptions and is not in the record. It must therefore be presumed that the evidence heard by the court justified the finding that the assessment was for the payment of future obligations and not for obligations previously incurred.
The exhibits attached to the petition filed February 15, 1909, purported to contain a statement of the receipts and disbursements of the district from the time of its organization to September 21, 1908, and the allegations of the petition with reference to the cash on hand and the estimate of the amount necessary to complete the main channel were based on that statement. Thereafter, on March 22, 1909, and before the hearing upon the petition, the district filed an amendment to the petition, consisting principally of an itemized statement of the receipts and disbursements from the organization of the district to February 26, 1909. Appellants contend that it appears from the amended petition and the exhibits attached thereto and made a part thereof, that the liabilities of the district exceeded the assets and that a part of the assessment was levied to meet the deficiency, and that it was not necessary to preserve the evidence in order to present this question for review. In order to sustain their contention, appellants argue that inasmuch as the contracts with Shannon and Blain included all the
work necessary for the completion of the main channel except those portions upon the railroad lands, and inasmuch as it appears from the financial report and estimates attached to the petition that at least $19,051.28 of the $50,000 additional assessment was required to complete the work covered by these contracts, it therefore appears from the record that at least $19,051.28 was levied to pay liabilities previously incurred by the district, and the case of Culbertson v. City of Fulton, 127 Ill. 30, is cited as conclusively settling the question in accordance with appellants' contention. In the case referred to, it appeared that the city of Fulton had made a contract with an engine company for the construction of a system of water-works and had agreed to pay therefor $11,619 at or during the completion of the work as provided in the contract and upon its acceptance by the council, the contractor having the option to receive payments thereon as the work progressed and was accepted by the city. Thereafter the city issued bonds aggregating $10,000 which it proposed to deliver to the engine company as part payment, and passed an ordinance levying $1700 for the completion of the payment of the contract price for the construction of the system of waterworks. Certain tax-payers of the city filed a bill for an injunction to restrain the city from accepting the waterworks and from issuing the bonds and to restrain the collector from collecting the $1700 tax, alleging that the $11,619 indebtedness exceeded the constitutional limit. When the case was heard in the circuit court it appeared that the engine company had performed its part of the contract and that the system was ready for acceptance by the city. It also appeared that $11,619 was $1165.95 in excess of five per cent of the value of the taxable property in the city as ascertained by the assessment for State and county taxes for the year 1886. The contract with the engine company was made August 15, 1887, and the State Board of Equalization did not determine the equalized