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county court as provided in the act, and cannot sary, to clear and enlarge any natural or arti. be availed of on an application for sale of the ficial channel lying beyond the district to comland to pay a delinquent installment of assess- | plete an outlet, may use the corporate funds ment,

for this purpose, no limit being imposed by the [Ed. Note.-For other cases, see Drains, Cent. statute or the Constitution on the distance to Dig. 88 91-101 ; Dec. Dig. Om 89.]

which a drainage district may go to secure an 2. DRAINS 89-ASSESSMENT-VALIDITY.

outlet, except as to expense, the commissioners In a proceeding for installment of drainage the

territory of another district, exercising ju

of a drainage district had power to pass through assessments, where one objector had acquired risdiction over the ditch of that district to se. title after the organization of the district and cure a sufficient outlet at a point beyond. the original assessment, his deed containing a clause reciting that the grantee assumed to pay Dig. & 4; Dec. Dig. Cw13.]

[Ed. Note.-For other cases, see Drains, Cent. all drainage assessments, the first payment cannot be declared a lien resting on the agreement 8. DRAINS 89–PROCEEDINGS FOR Assess. of the owner under the theory of a contract for MENT-DELINQUENT ASSESSMENT. the benefit of a third person, or of a personal In a proceeding for a delinquent installment liability constituting a lien on the land, but the of drainage assessments, the burden proceeding being at law to enforce a lien against objectors to show that their lands would not be the property, whether this purchaser is under benefited to the extent of the assessment by the a personal liability is immaterial, and judgment construction of the improvement. can only be had against the land by showing [Ed. Note.-For other cases, see Drains, Cente that the taxes are legally levied, assessed, and Dig. 88 91-101; Dec. Dig. Om 89.] charged. (Ed. Note.-For other cases, see Drains, Cent.

Appeal from Saline County Court; Charles Dig. $$ 91-101; Dec. Dig. Om 89.]

D. Stillwell, Judge. 3. DRAINS 89-ASSESSMENTS -EFFECT OF Application by the People, on the relation CONVEYANCE OF LAND ASSESSED.

of P. L. Dorris, County Collector, against No personal privilege was waived by the H. J. Garner and others, for judgment and grantor in making the deed, and the grantee is not estopped to show the true amount of the order of sale for delinquent installments of lien or to introduce any competent evidence as assessments levied by a drainage district to the value of the land.

organized under the Farm Drainage Act. [Ed. Note.-For other cases, see Drains, Cent. Judgment for relator, and defendants appeal. Dig. 88 91-101; Dec. Dig. Om 89.)

Reversed in part and remanded. 4. DRAINS Om 89-ASSESSMENTS-CLASSIFICA. TION OF LANDS-REVIEW.

Kane & Wise, of Harrisburg, and George Although where classification of lands un. B. Gillespie, of Springfield, for appellants. der the Farm Drainage Act is at a figure above Kraft, Kraft & Erskine, of Chicago, and W. zero they must be regarded as benefited, the amount of benefits is open to inquiry upon the F. Scott, of Harrisburg, for appellee. collector's application for judgment and order of sale.

DUNN, J. The Rector special drainage [Ed. Note. For other cases, see Drains, Cent. district of the counties of Saline and HamilDig. 88 91-101; Dec. Dig. Cm 89.)

ton was organized in the Saline county court 5. DRAINS Om 89 — PROCEEDINGS TO COLLECT in 1910 under the Farm Drainage Act, and DELINQUENT ASSESSMENTS.

In a proceeding for delinquent installments a special assessment of $78,234.36 was levied of drainage assessments, on the application for on the lan of the district. This was afterjudgment the delinquent list filed by the col- ward divided into installments, the first of lector is prima facie evidence that the lands will which was due on January 1, 1914. At the be benefited to the amount stated in the list, June term of the county court of Saline and it is not a sufficient defense to show that the property has not yet received that amount county an application was made by the colof benefits because of inadequacy of outlet, if it lector for a judgment and order of sale will receive them from the improvement when against certain lands in the district which completed.

[ Ed. Note.--For other cases, see Drains, Cent were in default in the payment of this installDig. 88 91-101; Dec. Dig. Om 89.]

ment and interest. The judgment rendered 6. DRAINS 13 FARM DRAINAGE Act

in that case was brought to this court by apCONSTRUCTION.

peal and reversed. People v. Garner, 267 Ill. The provisions of the Farm Drainage Act, 396, 108 N. E. 344. The remanding order requiring drainage commissioners to provide outlets of ample capacity for the waters of the dis was filed in the county court of Saline countrict are mandatory, and landowners who have ty and the cause was then consolidated with been assessed for the purpose of constructing the application made by the county collector drains or ditches to drain their lands may com- for judgment for the installment due January pel the commissioners to deepen and widen the outlet so as to provide main outlets of ample 1, 1915. The collector withdrew the applicacapacity for the waters of the district.

tion so far as the claim for interest was [Ed. Note.-For other cases, see Drains, Cent. concerned. Dig. $ 4; Dec. Dig. Om 13.]

[1] Two objections of a minor character 7. DRAINS 13 - ASSESSMENTS OUTLET - were made, one of which was to the assessSTATUTE.

ment of certain tracts by erroneous descripUnder Farm Drainage Act, $ 41 (Hurd's Rev. St. 1915–16, c. 42, § 116), providing that tions. Two tracts in a certain quarter secif the commissioners after completion of the tion were assessed, one to T. E. Vickers by work find that the lands of the district are not the description the north part of the northdrained and protected as contemplated, or some east quarter of the northwest quarter of secof them received partial or no benefit they tion 27, consisting of 13 acres; the other to shall use the corporate funds of the district to carry out the original purpose, and if neces- Joe Reeder by the description the south part

of the northeast quarter of the northwest, and charged upon the land. They cannot be quarter of section 27, consisting of 27 acres. declared a lien because of the agreement of It is conceded that these descriptions are the owners. No personal privilege was walvlegally sufficient to identify the land in the ed by the grantor in making the deed, and 40-acre tract and that they include all the the grantee is not estopped to show the true land in the tract, but it is urged that the amount of the lien or to introduce any compelands of the owners are not separately assess- tent evidence as to the value of the land. ed, as required by the statute, because the The main complaint of the appellants conland actually owned by T. E. Vickers consist- cerns the judgment upon their objection that ed of 13 acres lying north of Rector creek the assessment against their premises, reand the land owned by Reeder was the 27 spectively, is more than the premises have acres lying south of the creek. This creek been or will be benefited. Rector creek was was a very crooked stream running diagonal. a very crooked, sluggish stream running ly through the tract, so that the division of through the territory which was organized the tract into 13 acres off the north side and into the Rector special drainage district. 27 acres off the south side put a part of the The North Fork special drainage district land of each of the owners in each tract. of the counties of Hamilton and Saline was The classification of the lands by the commis- organized in the Hamilton county court about sioners was made by these descriptions, and the same time as the Rector district, the two the statute permitted any person who was districts being, in part, contiguous. The outlet dissatisfied to appear and object and to ap- of the Rector special drainage district was in peal from the decision of the commissioners Rector creek, on the boundary line between to the county court. The owners of the land the Rector district and the North Fork discould easily have had the mistake remedied trict. About 500 feet below this point, and if they had desired to do so. The classifi. within the boundaries of the North Fork discation and assessment were not void, and this trict, Rector creek emptied into North Fork objection cannot be availed of on an applica- creek. The Rector ditch was completed in tion for sale of the land to pay a delinquent 1912, and about a year later the North Fork installment.

ditch was completed. This ditch entered [2, 3] Objection was made by the people, North Fork creek, and the North Fork speand sustained, to the introduction of evidence cial drainage district deepened, straightened by C. B. Garner, one of the objectors, as to and cleaned the North Fork creek for a disthe amount of the benefits to certain tracts, tance of 194 miles below the mouth of Rector for the reason that he had purchased them creek, and subsequently recovered a judgafter the organization of the district and ment against the Rector special drainage the spreading of the original assessment. district for $6,852 for the latter district's The deeds by which he acquired title con- just proportion of the expense of the contained a clause reciting that the grantee struction of this main outlet ditch. North agreed to assume and pay all drainage taxes Fork creek was also a crooked, sluggish and assessments against the land. It is stream, with drifts and obstructions in it. argued on behalf of the appellee that only The bottom of the North Fork ditch where it the owner at the time of the assessment has stops in North Fork creek is lower than the the right to object to the amount of benefits, bottom of the creek. The lands of the objectand such owner having conveyed the property ors are all near the lower end of the Rector subject to the assessment, which the pur- district. The ditches of both the Rector dischaser assumed, the latter cannot object to trict and the North Fork district are straight the amount. Where property is subject to and bring down the water from above very a lien which the purchaser assumes to pay, rapidly. The evidence tended to show that the purchase price is regarded as including the water comes down very much more the amount of the lien and the purchaser is quickly in times of heavy rains than before bound to pay it as part of the purchase price. tbe construction of these ditches; that the The cases cited in support of this proposition outlet through the North Fork creek is insufare cases in which a personal liability aris- ficient to carry the waters off in times of flood, ing out of contract has been enforced under and that they back up over the lower end of such circumstances against the purchaser in the Rector ditch and the lands of objectors favor of the holder of the lien. Where one and remain there longer than they did before makes a contract with another for the benefit the ditches were constructed. The evidence of a third person, the third person may main was contradictory, but the preponderance of tain an action directly against the first on that which was received indicated that owing be contract made for his benefit. The to the insufficiency of the outlet the lands of present is not an action to enforce any liabil. objectors have not received the benefits which ity arising out of contract. It is a proceeding had been anticipated for them and are not at law to enforce a lien against the property. now benefited to the amount of the assessWhether the purchaser is under a personal ment against them. liability to pay the amount claimed to be [4-7] The scheme of the Rector special a lien is immaterial. The people can only drainage district contemplated a system of bave judgment against the land by showing drainage having its outlet in Rector creek, that the taxes are legally levied and assessed on the boundary of the district, and this

system was constructed. The appellants', no power to pass through the territory of lands received a figure of classification above the North Fork district for a distance of zero and must therefore be regarded as bene one mile and three-quarters, exercising jurisfited, although the amount of such benefit is diction over the ditch of that district, and open to inquiry upon the collector's applica- then continue beyond the territory of the tion for judgment and order of sale. People North Fork district and exercise jurisdicv. Soucy, 261 Ill. 108, 103 N. E. 570. On the tion over territory not contiguous to any of application for judgment the delinquent list the lands of the Rector district. This seems filed by the collector is prima facie evidence to be exactly what section 41 was intended to that the lands will be benefited to the amount authorize. Farm drainage districts are cre. stated in the list, and it is not enough to ated, by virtue of legislative authority, with show that the property has not yet received such powers as the Legislature grants and that amount of benefits. It is sufficient if must exercise their jurisdiction subject to the it will receive the benefits from the improve terms of the law of their creation. The Leg. ment when completed. Inadequacy of outlet islature has provided the manner in which is not sufficient to justify the refusal of the rights of upper and lower districts may judgment unless it appears that the outlet be exercised, and it does not contravene any cannot be made adequate for an amount constitutional limitation to require the lower equal to the benefits to the land affected. district to permit the upper district to use People v. Welch, 252 Ill. 167, 96 N. E. 991. its outlet and enlarge the same, if necessary, The provisions of the Farm Drainage Act upon paying compensation. Neither the statrequiring drainage commissioners to provide ute nor the Constitution has imposed any outlets of ample capacity for the waters of limit on the distance to which a drainage the district are mandatory, and land owners district may go to secure an outlet, except who have been assessed for the purpose of that the expense must be within the limits of constructing drains or ditches to drain their the benefits accruing to the lands of the dislands may compel the commissioners to trict. deepen and widen the outlet so as to provide [8] The burden was on the appellants to main outlets of ample capacity for the wa- show that their lands would not be benefited ters of the district. Peotone Drainage Dis- to the extent of the assessment by the contrict V. Adams, 163 nl. 428, 45 N. E. 266; struction of the improvement. They have Langan v. Milk's Grove Special Drainage not sustained that burden. They have shown District, 239 Ill. 430, 88 N. E. 182. The evi- that their lands are not now benefited, but dence tends to show that the completion of the evidence does not justify the conclusion the work in the Rector special drainage dis- that a sufficient outlet, which the drainage trict did not accomplish the results that were district can be compelled to furnish, will not expected; that the outlet of the system of benefit the lands to the amount of the assessdrainage had not the capacity to carry off ment. with sufficient speed the quantities of water The appellants rely on the case of Clear that were brought down with greater rapidity Creek Drainage & Levee District v. St. Louis, than before. For this reason the lands of Iron Mountain & Southern Railway Co., 264 the appellants have not received the benefits Ill. 640, 106 N. E. 490, for the proposition that to which they are entitled. Section 41 of the the commissioners have no power, and canFarm Drainage Act (Hurd's Rev. St. 1915– not be compelled by mandamus, to construct 16, c. 42, § 116) was adopted to meet emer an outlet through the lands of an adjoining gencies of this character. It provides that if district. That case was not an application the commissioners find, after the completion for judgment and order of sale for nonpayof the work, that for any cause the lands of ment of an assessment, but was an application the district are not drained or protected as for confirmation of an assessment made by a conter or some of them receive partial drainage district organized under the Levee or no benefits, they shall use the corporate Act. The plans for the improvement made funds of the district to carry out the origi- no provision for any outlet, but relied upon nal purpose, and, if necessary to clear and an outlet being thereafter constructed by anenlarge any natural or artificial channel other adjoining district, though such adjoinlying beyond the district to complete an out- ing district had not acquired the right of let, may use the corporate funds for this way for such outlet, no assessment roll had purpose, and if necessary privileges cannot been filed for its construction, and there was be obtained by agreement with the land own no agreement between the commissioners of ers or the commissioners, if the land or lands the two districts as to the terms for the conthrough which such outlet may be made are struction and use of such outlet. The work within another organized district, the com- which was proposed to be done by the Clear missioners may acquire the same by condem- Creek drainage district, and which was pronation, provided, in all such cases, if suffi- vided for, was the construction of a levee cient funds are not on hand the commission across the mouth of a creek, without any ers shall make a new tax levy.

provision for an outlet for carrying away the It is insisted on the part of appellants that water. The confirmation was denied on the

benefits can only be made on proof that the sand prevent its being established or maintained work proposed and provided for will special- within a year. Held that, as the keeping of a ly benefit the property, and that an assess- bawdyhouse was a nuisance at common law and

an offense against public morals, the law is not ment cannot legally be made for an improve- invalid as depriving those maintaining such rement which contemplates subsequent work sorts, of their property without due process of for which no provision is made, but which is law, for the state, under its police power to endependent on the future action of public join bawdyhouses, may adopt any means that are

reasonably necessary for the accomplishment of authorities.

the purpose and not unduly oppressive on the inThe judgment will be affirmed except as to dividual, and the owner will not, if he gives sethe southwest quarter of the northeast quar- curity, be deprived of the possession of the premter, the west half of the southeast quarter, ises, nor is he deprived of the proceeds of the

property sold. the southeast quarter of the southeast quar

[Ed. Note.-For other cases, see Constitutional ter, the northeast quarter of the southwest Law, Cent. Dig. $8 863-866; Dec. Dig. Om 303.) quarter, the east half of the northwest quarter of the southwest quarter, and all that

Appeal from Circuit Court, Cook County ;

Jesse A. Baldwin, Judge. part of the south half of the northwest quarter lying south of the Rector special drainage el P. Thrasher, against Dave Smith and

Bill by the People, on the relation of Samudistrict ditch, all in section 27, town 7, south,

others. Froi decree for complainant, derange 7, east (the tracts as to which the evi

fendants appeal. Affirmed. dence offered was rejected), and as to those tracts the judgment will be reversed, and

Rudolph Frankenstein and Maurice J. Slathe cause remanded.

ter, both of Chicago, for appellants. Sims, Reversed in part, and remanded.

Welch & Godman, of Chicago (Elwood G.
Godman and Daniel J. Ward, both of Chica-

go, of counsel), for appellee. (275 Ill. 256) PEOPLE ex rel. THRASHER v. SMITH et al. DUNN, J. This is an appeal by the de(No. 10826.)

fendants from a decree of the circuit court of (Supreme Court of Illinois. Oct. 24, 1916.) Cook county overruling their demurrer to a 1. NUISANCE 78 - ENJOINING · JURISDIC bill in equity filed under the provisions of TION OF COURT OF EQUITY.

the act approved June 22, 1915, entitled: A court of equity may enjoin the mainte "An act regarding places used for purposes of Dance of a public nuisance at the instance of the lewdness, assignation, or prostitution, to declare Attorney General or state's attorney, though the same to be public nuisances, and to provide such maintenance be punishable by indictment. for the more effectual suppression thereof."

[Ed. Note.- For other cases, see Nuisance, Laws of 1915, p. 371. Cent. Dig. 8 191; Dec. Dig. Om78.]

[1, 2] It is unnecessary to set forth the al2. NUISANCE ma 60 DISORDERLY HOUSE STATUTES-VALIDITY.

legations of the bill, for no claim is made Laws 1915, p. 371, declaring all buildings, that they are not sufficient to comply with apartments, and places, and fixtures and move the terms of the act, but the appellants' conable contents, used for purposes of lewdness or tentions are that the statute is unconsituprostitution, to be public nuisances, and author- tional and void as class legislation; that it izing the state's attorney or any citizen in the county to maintain a bill in equity in the name without due process of law; that it attempts

deprives the appellants of their property of the people to perpetually enjoin all persons from maintaining or permitting such nuisances, to confer upon a private citizen the duties and to abate the same, is valid, despite objec- of the state's attorney and the Attorney Gentions that property owners not residents of the eral; and that the act attempts to prevent county were deprived of the benefit of the act; for a court of equity has jurisdiction to enjoin the commission of a criminal offense by inthe maintenance of a public nuisance though it junction. be punishable by indictment, and it is within The bill was not filed by the state's attorthe constitutional power of the Legislature to ney or the Attorney General, but upon the designate the agency to set the law in motion on relation of a private citizen of Cook county, behalf of the public. (Ed. Note.-For other cases, see Nuisance,

under the authority of section 2 of the act. Cent. Dig. § 137; Dec. Dig. Om60.]

Section 1 declares all buildings, apartments, 3. CONSTITUTIONAL LAW M303 — ENJOINING

and places, and the fixtures and movable conMAINTENANCE-STATUTES-DUE PROCESS. tents thereof, used for purposes of lewdness,

Laws 1915, p. 371, declaring that all build-assignation, or prostitution, to be public ings, apartments, and places and the fixtures nuisances, and section 2 authorizes the state's and movable contents thereof used for purposes of assignation or prostitution are public nui- attorney, or any citizen of the county in sances, and maintenance thereof may be enjoin- which such a nuisance exists, tom ed, also authorizes the court upon enjoining the "maintain a bill in equity, in the name of the nuisance to order that the building, apartments, people of the state of Illinois, perpetually to enand premises shall remain in the custody of the join all persons from maintaining or permitting court and be kept close by the sheriff for one such nuisance, and to abate the same, and to enyear, the sheriff to remove all fixtures and mov- join the use of such building or apartment, or able property, sell it, and after payment of costs such place for any purpose, for a period of one pay over the proceeds to the owner. There are year:

Provided, that no such injuncprovisions allowing the owner to retain posses- tion shall issue, except on behalf of an owner or sion upon giving security to abate the nuisance agent, unless it be made to appear to the satis

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For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and lodexes

faction of the court that the owner or agent of and the proceeds, after the payment of costs, such building or apartment or of such place, paid to the owner. The deprivation of the knew or had been personally served with a no

use of the property for one year as security tice signed by the petitioner.”

against the continuance or renewal of the The appellants contend that in extending nuisance is not an unreasonable means to the right to maintain the bill to citizens of that end, in view of the fact that such deprithe county only many residents of the coun- vation is not absolute. The owner may be ty who are not citizens, and many property at once restored to the possession if he will owners who are neither residents nor citi. give security, in a reasonable amount, to zens of the county, are deprived of the bene- abate the nuisance immediately and prevent fit of the bill. The jurisdiction of a court its being established or maintained within of equity to enjoin the maintenance of a

a year. No injunction can issue and no orpublic nuisance at the suit of the Attorney der to close the place can be enforced against General or state's attorney, even though such an owner who has in good faith endeavored maintenance may be punishable by indict- to prevent the nuisance. ment, cannot be doubted, and is recognized

Under the police power the state may inin Stead v. Fortner, 255 III. 468, 99 N. E. terfere whenever the public interest demands 680, and People v. Clark, 268 111. 156, 108 N. it, and a large discretion is vested in the E. 994. The action is one affecting the pub- Legislature to determine not only what the lic welfare, and it is within the constitution- | interests of the public require, but what al power of the Legislature to designate the measures are necessary for the protection agency to set the law in motion on behalf of of such interests, the only restriction being the public. Carleton v. Rugg. 149 Mass. 550, that the interest of the public, in general, re22 N. E. 55, 5 L. R. A. 193, 14 Am. St. Rep. quires such interference, and that the means 446; Littleton v. Fritz, 65 Iowa, 488, 22 N. are reasonably necessary to the accomplishW. 641, 54 Am. Rep. 19; Ex parte Allison, ment of the purpose, and not unduly op48 Tex. Cr. R. 634, 90 S. W. 492, 3 L. R. A. pressive upon individuals. Lawton v. Steele, (N. S.) 622, 13 Ann. Cas. 684.

152 U. S. 133, 14 Sup. Ct. 499, 38 L. Ed. [3] The decree restrained the appellants 385; Durand v. Dyson, 271 Ill. 382, 111 N. from maintaining, using, or permitting the E. 143. Since the use of a building, and the use of the premises for the purpose of lewd furniture in it, for the purpose mentioned ness, assignation, or prostitution, and from in the statute, may properly be declared a using the building, apartments, and premises nuisance, the Legislature has authority to for any purpose for one year from the date abate such nuisance and to adopt any means of the decree, and ordered that the building, reasonably adapted to prevent its recurrence apartments, and premises should remain in in the future which are not unđuly oppresthe custody of the court while the decree re

sive. Deprivation of the possession and use mained in effect. It was further ordered that of the property is certainly adapted to the the sheriff should remove all fixtures and purpose. It is not unduly oppressive under movable property used in conducting the nui- the circumstances. There is no summary sance and sell them at public sale, as pro

proceeding. Provision is made for notice vided by law, and that he should close the and hearing, and only in case of a willful premises and keep them closed for the period violation of the law can the injunction be of one year. These latter provisions of the granted and the possession be taken from the decree were authorized by the terms of sec

owner in order to make the injunction eftion 5 of the statute, and it is insisted that

fectual. An effort in good faith to abate the appellants were thereby deprived of their the nuisance will prevent a decree to close property without due process of law.

the place, and even after decree reasonable The act was an exercise of the police power and prevent its establishment or maintenance

security to immediately abate the nuisance of the state, passed in the interest of the pub- within a period of one year will cause lic welfare, for the preservation of good or

These results may der and public morals,

vacation of the decree.

The keeping of a bawdyhouse was a nuisance at common law. of prostitution or permitting one to be kept,

all be easily avoided by not keeping a house The Legislature did not exceed its powers in and it cannot be regarded as unduly oppres. declaring, as it did in the first section, all sive upon one who has willfully kept or perplaces, and the property therein, used for mitted such a house to require him, after the purposes mentioned to be public nui- a judicial determination of that fact, to give

The contention of the appellants is security for the discontinuance of the nuithat the nuisance is not in the property it

sance long enough to assure the permanence self, but in the manner in which it is used, of its abatement before he shall be permitand that the unlawful use may be prevented ted to again occupy and use the property without the confiscation or destruction of within a year. Such a requirement does not the property itself, The statute does not deprive him of his property without due undertake to confiscate or destroy property. process of law. The personal property is required to be sold Decree affirmed.



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