Opinion · Supreme Court of the United States
O'BRIEN v. Wheelock
O'BRIEN v. Wheelock, 184 U.S. 450 (1902)
- Type
- Opinion
- Court
- Supreme Court of the United States
- Jurisdiction
- Federal
- Date
- 1902-02-24
- Topic
- general
Mr. Chief Justioe Fuller delivered the opinion of the court. The Circuit Court held in substance, among other things, that the decretal order of that court on the bill first filed adjudging the amounts reported by the master to be due the several com. plainants and giving them liberty to file a supplemental bill against the owners of the lands benefited to compel them to contribute to the payments of the amounts thus reported, was not an adjudication which precluded the land owners from deny *481 ing their liability; that as it was thirteen years after the act was declared to be unconstitutional and nine years after leave was given to file the supplemental bill, before any step was taken except as against those who were originally commissioners, there had been such laches as precluded complainants from having the relief sought, the conditions of the property and the relations of the parties having in the meantime greatly changed. The Circuit Court of Appeals held that even when exercising an independent judgment a Federal court should give effect to rules of construction previously established by the highest court of a State, and not act upon a different view unless compelled to do so to prevent .an absolute denial of justice; that, applying the settled rule of construction of the State to the state constitution relating to the subject, the act of April 24, 1871, was unconstitutional, and assessments made thereunder were not enforceable; that the fact alone that land owners a…
Citator
UpLaw has not yet analyzed O'BRIEN v. Wheelock. The absence of a flag is not a finding that it is good law.
- Cited by
- 83 opinions
Headnotes
- Constitutional Law — Estoppel to Assert Invalidity An unconstitutional law cannot be held valid as to particular parties on the ground of estoppel and executed as a law.
- Constitutional Law — Municipal Bonds Where bonds were issued and assessments made under a statute that the state supreme court adjudged unconstitutional, the bonds and assessments fell with the act, and the landowners were not estopped from denying its validity.
- Contracts Law — Implied Contract A party who has received the full benefit of proceedings under a law found to be unconstitutional may, on occasion, be compelled to respond on the theory of implied contract.
- Contracts Law — Recovery of Benefits Where the consideration was indivisible and incapable of apportionment, and the landowners had not received and could not receive the contemplated benefits because the levee maintenance scheme failed with the law, and the evidence showed losses exceeding the amount of the bonds, no recovery on implied contract was warranted.
- Remedies — Laches The want of diligence presented an insuperable bar to asserting any ground of relief on implied contract.
- Civil Procedure — Joinder A decree entered in a bondholders' bill against the commissioners—to which the landowners were not parties—finding amounts due without prejudice and granting leave to file a bill or bills against the landowners did not make the later bill against the landowners anything other than an original bill as to them.
- Remedies — Laches A bill filed thirteen years after the state supreme court declared an act unconstitutional and nearly nine years after leave was granted, during which the conditions of the property and relations of the parties greatly changed, was barred by laches.
- General — Drainage Law — Petition Under the Illinois drainage act, a petition may be filed in the county court of the county where a proposed drain, ditch, or levee is to be constructed when owners or occupants of lands desire to construct such works across the lands of others for agricultural and sanitary purposes. Act of April 24, 1871, § 1
- General — Drainage Law — Petition Contents A petition under the drainage act must set forth the necessity of the proposed work, a description of its starting point, route, and terminus, and, where a levee or other work is deemed necessary for drainage, a general description of the same, and may pray for appointment of commissioners. Act of April 24, 1871, § 1
- General — Drainage Law — Notice Notice by publication of any petition filed under the drainage act is required, stating when and in what court the petition is filed, the starting point, route, and terminus of the proposed works, whether a levee or other work is intended in connection therewith, and the term of court at which petitioners will ask a hearing. Act of April 24, 1871, § 2
- Civil Procedure — Drainage Law Where the proposed work is to pass through or over, or be constructed upon, lands lying in different counties, the petition may be filed in the county court of either county. Act of April 24, 1871, § 4
- General — Drainage Law — Jurisdiction of County Court The court in which the petition is filed is empowered to determine all matters pertaining to the subject matter of the petition. Act of April 24, 1871, § 5
- General — Drainage Law — Appointment of Commissioners If it appears that the proposed work is necessary or would be useful for the drainage of the lands for agricultural and sanitary purposes, the court must so find and appoint three competent persons as commissioners to lay out and construct the proposed work. Act of April 24, 1871, § 5
- General — Drainage Law — Commissioners' Duties Commissioners appointed under the drainage act must examine the lands proposed to be drained and those over or upon which the work is proposed to be constructed. Act of April 24, 1871, § 9
- General — Drainage Law — Commissioners' Duties Commissioners must determine whether the starting point, route, and terminus, and the proposed location of any levee or other work, are in all respects proper or most feasible, and if not, what would be. Act of April 24, 1871, § 9
- General — Drainage Law — Commissioners' Duties Commissioners must determine the probable cost of the proposed work, including incidental expenses and the expenses of the proceeding. Act of April 24, 1871, § 9
- General — Drainage Law — Commissioners' Duties Commissioners must determine what lands will be injured and the probable aggregate amount of damages such lands will sustain by reason of the laying out and construction of the proposed work. Act of April 24, 1871, § 9
- General — Drainage Law — Commissioners' Report; Dismissal Commissioners must determine what lands will be benefited and whether the aggregate benefits will equal or exceed the costs of constructing the work; if the expense would more than equal the benefits, the proceedings are to be dismissed, and if less, the commissioners are to have plans, profiles, surveys, and specifications made and report the same to the court. Act of April 24, 1871, §§ 9–11
- General — Drainage Law — Commissioners' Authority Commissioners are not confined to the point of commencement, route, or terminus of the drains or ditches, or to the number, extent, or size thereof, or to the location, plan, or extent of any levee or other work, as indicated in the petition.
- General — Drainage Law — Commissioners' Authority Commissioners are directed to locate, design, lay out, and plan the work as they think will drain the petitioner's land with the least drainage and for the greatest benefit of all the lands to be affected thereby.
- General — Drainage Law — Modification of Plans All plans proposed by the commissioners may be changed by the court on the application of the commissioners or of any person interested. Act of April 24, 1871, § 12
- General — Drainage Law — Confirmation Proceedings The drainage act requires due notice by publication of any application to confirm the commissioners' report, and all persons interested are given the privilege to appear and contest the confirmation or to ask any modification thereof. Act of April 24, 1871, §§ 13, 14
- General — Drainage Law — Confirmation of Report If no objections are made to the report, or if the objections made are not well taken, the report is to be confirmed; if the court is of opinion that the report should be modified, it is authorized to make such modification as would be equitable. Act of April 24, 1871, §§ 13, 14
- General — Drainage Law — Jury Assessment If the report is confirmed, the court is authorized to impanel a jury of twelve men competent to serve as jurors, who, being duly sworn, are required to assess damages and benefits according to law. Act of April 24, 1871, § 16
- General — Drainage Law — Jury Before Justice of the Peace Alternatively, the court may direct that a jury be impaneled before a justice of the peace for the assessment of damages and benefits; the commissioners may then apply to any justice of the peace in the county, who shall without the formality of a written application summon and impanel a jury of six men competent to serve as jurors, sworn in the same manner as a jury impaneled by the court. Act of April 24, 1871, § 16
- General — Drainage Law — Jury's Findings The jury is required to examine the land to be affected by the proposed work and ascertain to the best of their ability and judgment the damages and benefits sustained by or accruing to the land affected by the construction of the proposed work. Act of April 24, 1871, § 17
- General — Drainage Law — Assessment Roll The jury is required to make out an assessment roll setting down in proper columns the names of owners, when known, a description of the premises affected, the number of acres in each tract, and, if damages are allowed, the amount of the same; where damages are allowed to and benefits assessed against the same tract, the balance, if any, is to be carried forward to a separate column for damages or benefits, as the case may be. Act of April 24, 1871, § 17
- General — Drainage Law — Assessment Method In making the assessment, the jury is required to award and assess damages and benefits in favor of and against each tract of land separately, in the proportion in which such tract would be damaged or benefited. Act of April 24, 1871, § 18
- General — Drainage Law — Limits on Benefits Assessed No tract of land may be assessed for benefits in an amount greater than its proportionate share of the estimated cost of the work and expenses of the proceeding, nor in an amount greater than it would be benefited by the proposed work, according to the best judgment of the jury. Act of April 24, 1871, § 18
- Civil Procedure — Drainage Law The commissioners, or any person who made objection to the assessment, have the right of appeal from the finding of the jury. Act of April 24, 1871, § 24
- General — Drainage Law — Judgment on Assessment If, upon appeal, the assessment is corrected, or if the assessment roll is confirmed, the roll is to be spread upon the record, with right of appeal or writ of error therefrom. Act of April 24, 1871, § 26
- General — Drainage Law — Payment of Assessments At the time of confirming the assessment, the court may order the assessment of benefits to be paid in instalments of such amounts and at such times as would be convenient for the accomplishment of the proposed work; otherwise the whole amount is payable immediately upon confirmation and is a lien upon the lands assessed until paid. Act of April 24, 1871, § 27
- General — Drainage Law — Notice of Lien The clerk must, immediately after entry of the order of confirmation, make out and certify to the commissioners a copy of the assessment roll, and deliver separate copies pertaining to lands in different counties to be recorded in the recorder's office of the respective counties, which shall be notice of the lien thereon to all persons. Act of April 24, 1871, § 28
- General — Drainage Law — Collection of Assessments Upon receiving a certified copy of the assessment, the commissioners may proceed to collect the same or any instalment thereof, or may certify any instalment they are entitled to collect to the county clerk of the county where the lands are situated, who must extend the same in a separate column upon the proper tax books for collection of state and county taxes. Act of April 24, 1871, § 29
- General — Drainage Law — Owner's Right to Construct The owner, agent, or occupant of any land through or on which any drain, ditch, or levee shall be constructed has the right, under the direction of the commissioners and within such time as they prescribe, to construct such work, or any part thereof, at his own cost, and is to be allowed for the value thereof upon his assessment. Act of April 24, 1871, § 29
- General — Drainage Law — Interest on Instalments Where the assessment for benefits is payable in instalments, such instalments draw interest at ten per centum per annum from the time they become payable until paid, and the interest may be collected and enforced as part of the assessment. Act of April 24, 1871, § 30
- General — Drainage Law — Delinquent Assessments Where the commissioners have elected to collect any assessment or instalment themselves, or have not caused the same to be extended upon the state and county tax books, and any assessment or instalment is due and uncollected, the commissioners may return a certified list of the delinquent lands, with the amount due thereon, to the officer authorized by law to receive the return of the books for collection of state and county taxes in the county or respective counties where the lands are situated. Act of April 24, 1871, § 31
- General — Drainage Law — Enforcement of Delinquent Assessments The officer to whom the commissioners return a certified list of delinquent lands shall collect and enforce the amounts due in the same manner as other taxes or special assessments are enforced, and shall pay the amounts collected over to the commissioners. Act of April 24, 1871, § 31
- General — Drainage Law — Commissioners' Powers Commissioners appointed and qualified under the drainage act may do all acts necessary for surveying, laying out, constructing, repairing, altering, enlarging, cleaning, protecting, and maintaining any drain, ditch, levee, or other work for which they were appointed, including necessary bridges, crossings, embankments, protections, dams, and side drains, and may employ all necessary agents and servants, enter into all necessary contracts, and sue and be sued. Act of April 24, 1871, § 34
- General — Drainage Law — Borrowing Authority Commissioners may borrow money for construction of authorized work, not exceeding the amount of assessment unpaid at the time of borrowing, secured by notes or bonds bearing interest not exceeding ten per centum per annum and not running beyond one year after the last assessment on account of which the money is borrowed falls due; such notes or bonds do not make the commissioners personally liable but constitute a lien upon the assessment for repayment of principal and interest. Act of April 24, 1871, § 35
- General — Drainage Law — Payment of Damages All damages over and above the benefits to any tract of land are payable out of all amounts assessed against other lands for benefits, and such damages must be paid or tendered to the owner before the commissioners are authorized to enter upon his land for construction of any work thereon; where the owner is unknown, ownership is contested, or the commissioners cannot for any reason safely pay the owner, they may deposit the damages with the clerk of the court, and the court may order payment to the party entitled. Act of April 24, 1871, § 37
- General — Drainage Law — Criminal Penalties for Injury to Works Any person who wrongfully and purposely fills up, cuts, injures, destroys, or in any manner impairs the usefulness of any drain, ditch, or other work constructed under the drainage act, or theretofore constructed for drainage or protection against overflow, may be fined not exceeding two hundred dollars, recoverable before a justice of the peace; if the injury is to a levee whereby lands are overflowed, the person may be fined not exceeding five thousand dollars, or imprisoned in the county jail not exceeding one year, or both. Act of April 24, 1871, § 45
- Criminal Law & Procedure — Drainage Law — Fines All complaints under the penal section of the drainage act shall be in the name of the people of the State of Illinois, and all fines collected shall be paid over to the proper commissioners to be used for the work injured. Act of April 24, 1871, § 45
- General — Drainage Law — Civil Liability for Injury to Works A person who wrongfully and purposely fills up, cuts, injures, destroys, or impairs the usefulness of any drain, ditch, levee, or other work is liable to the commissioners having charge thereof for all damages occasioned to such work, and is also liable to the owners and occupants of lands for all damages resulting to them by such wrongful act; such damages may be recovered before a justice of the peace if within his jurisdiction, or before any court of competent jurisdiction. Act of April 24, 1871, § 46
- Healthcare Law — Drainage Law — Registration of Bonds Under the Illinois act of April 9, 1872, whenever the court's findings in proceedings under the drainage act establish that a drain, ditch, levee, or other authorized work would be of public benefit for the promotion of public health or in reclaiming or draining lands, the work is deemed a "public work," and commissioners may register with the auditor of public accounts any bonds issued by them under order of court, the registration showing the date, amount, number, maturity, and rate of interest of the bonds. Act of April 9, 1872
- General — Drainage Law — Registration of Bonds Under the act of April 9, 1872, the fact of registration is certified by the auditor under his seal of office upon each bond. Act of April 9, 1872
- Constitutional Law — Drainage Legislation The Illinois constitution of 1870 (art. 4, § 31) provides that the general assembly may pass laws permitting owners or occupants of lands to construct drains and ditches for agricultural and sanitary purposes across the lands of others. Ill. Const. 1870, art. 4, § 31
- General — Drainage Law — Construction of Statute The Act of April 24, 1871, providing for the construction and protection of drains, ditches, levees, and other works, was evidently passed in view of article 4, section 31, of the Illinois constitution of 1870. Updike v. Wright, 81 Ill. 49
- General — Drainage Law — Levees as Auxiliary Works Under the Act of April 24, 1871, where it becomes necessary in the construction of a system of drainage, a levee or other work may be adopted to make that system available and may be constructed under the statute's provisions; the statute's provisions concerning a levee or other work apply only in connection with a system of drainage by means of drains and ditches for agricultural and sanitary purposes. Updike v. Wright, 81 Ill. 49
- General — Drainage Law — Scope of Authority The Act of April 24, 1871, does not authorize owners or occupants of land to undertake the building and maintenance of an immense levee on the borders of a river not connected with any system of drainage by ditches; neither the constitution nor the statute contemplates the construction of an immense river-border levee unconnected to a system of drainage by ditches. Updike v. Wright, 81 Ill. 49
- Statutory Interpretation — Drainage Law A construction of the drainage statute that would warrant owners or occupants of lands to enter upon an immense and costly levee work is forced and unreasonable. Updike v. Wright, 81 Ill. 49
- Constitutional Law — Legislative Power Section 5, article 9, of the Illinois constitution of 1848, permitting corporate authorities of counties, townships, school districts, cities, towns, and villages to assess and collect taxes for corporate purposes, was construed as a limitation on the power of the general assembly to grant the right to assess and collect taxes to any other than the corporate or local authorities of the municipalities or districts to be taxed. Board of Directors v. Houston, 71 Ill. 318; Harward v. St. Clair & Monroe Levee & Drainage Co., 51 Ill. 130; South Park Commissioners v. Salomon, 51 Ill. 37; Gage v. Graham, 57 Ill. 144; Hessler v. Drainage Commissioners, 53 Ill. 105
- Constitutional Law — Taxation — Consent of Taxpayers The legislature's power was subject to the further limitation that a local burden of taxation or special assessments could not be imposed upon a locality without the consent of the taxpayers to be affected.
- Constitutional Law — Local Improvements The clause of the Illinois constitution of 1870 concerning local improvements and corporate taxation, like the corresponding clause of the constitution of 1848, must be construed as a limitation on the power of the legislature; under that construction, the general assembly may vest cities, towns, and villages with power to make local improvements by special assessment or by special taxation of contiguous property benefited by the improvement, and by necessary implication is inhibited from conferring that power upon other municipal corporations or upon private corporations.
- Constitutional Law — Taxation by Municipalities Only cities, towns, and villages fall within the constitutional provisions; other municipal corporations may be vested with power to assess and collect taxes for corporate purposes, but such taxes must be uniform in respect to persons and property within the jurisdiction imposing them.
- Constitutional Law — Special Assessments Neither the commissioners or juries selected under the drainage act, nor the county court, is a body that may, under the Illinois constitution, be given power to make local improvements by special assessments or special taxation upon contiguous property.
- Constitutional Law — Consent of Taxpayers The constitutional provision declaring that the general assembly may pass laws permitting owners or occupants of lands to construct drains or ditches for agricultural and sanitary purposes implies that the community whose property is to be taxed may have a right of election in the matter and implies voluntary action by the landowners.
- Constitutional Law — Consent — Election A privilege conferred upon an occupant as well as the owner of land to present a petition to the county court implies voluntary action by the petitioner; an intention to confer unwarranted power upon one person, who would himself be subject to none of the burdens imposed, ought not to be imputed to the legislature, and laws not permitting an election as to the propriety of undertaking a work are vicious and within the inhibition of the constitution.
- Constitutional Law — Consent — Opportunity to Contest The opportunity of a landowner to appear before the county court when a petition is presented and resist the application, or to contest the assessment upon his property when made, does not remove the constitutional objection where whether the work shall be undertaken and his property subjected to taxation is made to depend not upon his election but upon the decision of the court.
- Constitutional Law — Corporate Authorities Section 5, article 9, of the Illinois constitution was intended to define the class of persons to whom the right of taxation might be granted and the purposes for which it might be exercised; the legislature could not constitutionally confer the power of taxation upon any other than corporate authorities of counties, townships, school districts, cities, towns, and villages, or for any other than corporate purposes. Harter v. Kernochan, 103 U.S. 562, 570; County of Livingston v. Darlington, 101 U.S. 411; Weightman v. Clarke, 103 U.S. 256, 259
- Remedies — Master's Report A master to whom a cause is referred may take proofs, determine the amounts due to each party appearing before him, and report the amounts, grounds, and facts of his findings to the court.
- Remedies — Supplemental Bill — Contribution After the master's report of amounts due is approved and the court determines and adjusts the amounts due for moneys advanced or loaned on bonds held, complainants or other persons coming into the cause may file a supplemental bill against present or former owners of the lands alleged to be benefited by the levee and other works, or persons interested therein, to compel contribution to the amounts found due and for further relief as advised.
- Remedies — Lien upon Assessments The sums found due to bondholders are a lien upon the assessments made under the order of the county court and upon the lands assessed, as provided in sections 27 and 37 of the Illinois Act of April 24, 1871. Act of April 24, 1871, §§ 27, 37
- General — Drainage Law — Enforcement of Assessments by Bondholders Where the defendant commissioners had no money in hand to pay the amounts found due, and it appeared, not denied in the answer, that they had taken no steps to collect the assessments made for repayment of borrowed moneys and the bonds and coupons issued, the complainants were given the right to proceed in court, in the name of the commissioners as complainants or in their own names, by original, supplemental, or other bills, against the described lands and their owners or other liable persons, to recover the amounts found due and costs.
- General — Drainage Law — Constitutional Amendment of 1878 The Illinois Constitution was amended to provide that the General Assembly may pass laws permitting landowners to construct drains, ditches, and levees for agricultural, sanitary, or mining purposes across the lands of others; provide for the organization of drainage districts; vest their corporate authority with power to construct and maintain levees, drains, and ditches; and keep in repair all drains, ditches, and levees theretofore constructed under Illinois law by special assessment upon the property benefited. 1 Starr & Curtis' Anno. Stat. Ill. p. 122
- General — Drainage Law — Act of 1879 The Illinois legislature passed an act, effective May 29, 1879, providing for the construction, reparation, and protection of drains, ditches, and levees across the lands of others for agricultural, sanitary, and mining purposes, and for the organization of drainage districts with authority to construct and maintain such works and to keep in repair any such works theretofore constructed under any law of the State. 1 Starr & Curtis' Anno. Stat. Ill. p. 919
- General — Drainage Law — Repair Assessments Under the 1879 drainage act, where a levee had theretofore been built under any law of the State, the annual assessment for keeping it in repair was made due and payable on the first of September annually.
- General — Drainage Law — Notice and Organization of Districts Under the Illinois statute approved May 29, 1879, persons made parties to and given notice of proceedings for organization of a levee drainage district are bound by such proceedings and by the appropriation of the levee, and persons who acquired title to lands after the district's organization are likewise bound. Illinois statute approved May 29, 1879
- General — Drainage Law — Successive Interests Heirs at law who take title from ancestors who participated in drainage district proceedings take subject to those proceedings, and defendants who acquired title by accepting deeds expressly recognizing the lien of bondholders are bound by that lien.
- Remedies — Impairment of Security Where lands were enhanced in value by levee expenditures, plaintiffs who purchased bonds in reliance on the expected drainage and on assurances of landowners and commissioners may assert that the lands are security for the money borrowed, and defendants bound to preserve, protect, improve, and repair the levee and works are obligated to contribute sufficient money, ratably or otherwise, and to make further assessments on the lands, to keep plaintiffs' security adequate.
- Remedies — Conclusiveness of Decretal Order A decretal order adjudging amounts due and granting liberty to file a supplemental bill against benefited landowners does not preclude those landowners from denying liability, and a court's orders cannot conclude persons who were not parties to the suit in which those orders were made.
- Remedies — Laches A delay of thirteen years after an act was declared unconstitutional, and nine years after leave was given to file a supplemental bill, before taking any step except against the original commissioners, constitutes laches precluding the relief sought where the conditions of the property and relations of the parties have greatly changed in the meantime; the mere institution of a suit does not of itself relieve a person from the charge of laches, and failure to diligently prosecute the action carries the same consequences as though no action had been begun. Johnston v. Mining Co., 148 U.S. 360, 370
- Federal Courts & Jurisdiction — Deference to State Court Construction A federal court, even when exercising independent judgment, should give effect to rules of construction previously established by the highest court of a state and should not act on a different view unless compelled to do so to prevent an absolute denial of justice.
- General — Drainage Law — Invalidity of the Act of 1871 Applying the state's settled rule of construction to the state constitution, the Illinois Act of April 24, 1871, was unconstitutional and assessments made under it were not enforceable.
- Remedies — Estoppel — Unconstitutional Statutes The fact alone that landowners advocated and used their influence to secure passage of a law under which bonds were issued, to be paid by special assessments against their lands, which law was later declared unconstitutional and the assessments void, does not afford a ground for a court of equity to declare a lien on such lands in favor of bondholders, absent fraud, where both the landowners and the bond purchasers acted in the mistaken belief that the bonds were valid.
- Remedies — No Equitable Lien for Benefits Conferred Under Void Bonds Where bonds issued by commissioners in payment for construction of a levee to protect lands from overflow were void, a court of equity has no power to determine that certain lands received the benefit of the expenditure and on that ground declare a lien on the lands in favor of the bondholders. 95 F. 110
- Remedies — Laches The mere institution of a suit does not of itself relieve a person from the charge of laches; failure to diligently prosecute the action carries the same consequences as though no action had been begun. Johnston v. Mining Co., 148 U.S. 360, 370; 95 F. 110
- Civil Procedure — Revival of Judgments Under Illinois statute, no execution can issue upon a judgment after the expiration of seven years from the time it becomes a lien, except upon revival by scire facias. 2 Starr & Curtis' Anno. Stat. Ill. p. 1386, c. 77, § 6
- Real Property Law — Limitations Under Illinois statute, an action to recover real estate is barred by seven years' residence thereon under a title of record, by seven years' adverse possession under color of title and payment of taxes, or, as to unoccupied land, by seven years' payment of taxes under color of title. 2 Starr & Curtis' Anno. Stat. Ill. pp. 1538, 1539, 1547, c. 83, §§ 4, 6, 7
- Remedies — Nature of Foreclosure Bill A bill to enforce severally against the lands of certain defendants the lien of separate assessments for construction of a levee is in the nature of a foreclosure bill to enforce, on several and separate parcels of land, the liens of several and specific assessments upon the faith of which the moneys that built the levee were advanced, and is not a bill to compel contributions to or collect proportionate amounts of a gross sum.
- Remedies — Reopening Former Decree A party returning to a court of chancery to obtain its aid in executing a former decree does so at the risk of opening up such decree as respects the relief to be granted on the new bill. Lawrence Mfg. Co. v. Janesville Mills, 138 U.S. 552, 561
- Civil Procedure — Commissioners Not Representatives of Landowners Commissioners appointed under the Act of April 24, 1871, were not impleaded as representing the landowners in the litigation, and their powers were created and limited by the act and did not include the power to bind all or any of the landowners of the district in such a suit.
- Civil Procedure — Adverse Relation A suit brought to compel the commissioners to discharge the duty, under the act, of enforcing the collection of assessments in the interest of the bondholders as creditors placed the commissioners in an adverse relation to the landowners, who were quasi debtors.
- Civil Procedure — Joinder A defendant added as a new party by an original bill is entitled to all defenses that existed at the time it was filed and is unaffected by the principle of lis pendens.
- Federal Courts & Jurisdiction — State Court Decisions on Constitutionality A state supreme court decision invalidating a statute as unconstitutional, rendered after bonds were issued and purchased but on objections by landowners to confirmation of assessments relied on to pay the bonds, may well be binding on the federal courts; even where a federal court is not obliged to accept such a decision, it must reach the same conclusion where there is so little doubt of that decision's correctness.
O'BRIENv. WHEELOCK,184 U.S. 450(1902)
22 S.Ct. 354
O'BRIENv. WHEELOCK.
CERTIORARI TO THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE SEVENTH
CIRCUIT.
No. 38.
Argued October 21, 22, 1901.
Decided February 24, 1902.
THIS case is brought here by certiorari to the Circuit Court
of Appeals for the Seventh Circuit to review a decree of the
Circuit Court of the United States for the Southern District of
Illinois, 78 F. 673, affirmed by the Court of Appeals,
95 F. 883. The bill relates to certain proceedings under an
act of the General Assembly of the State of Illinois, approved
April 24, 1871, entitled "An act to provide for the construction
and protection of drains, ditches, levees and other works." The
opinion of the Circuit Court of Appeals was delivered by Mr.
Justice Harlan, presiding as Circuit Justice, and the case is
therein stated thus:
"By the above act of the General Assembly of Illinois, it was
provided that whenever one or more owners or occupants of lands
desired to construct `a drain or drains, ditch or ditches, across
the lands of others, for agricultural and sanitary purposes, such
person or persons may file a petition in the county court of the
county in which the drain or drains, ditch or ditches, shall be
proposed to be constructed, setting forth the necessity of the
same, with a description of its or their proposed starting point,
route and terminus, and if it shall be deemed necessary for the
drainage of the land of such petitioners that a levee or other
work be constructed, the petitioners shall so state, and set
forth a general description of the same as proposed, and may pray
for the appointment of commissioners for the construction of such
work, pursuant to the provisions of this chapter.' § 1.
"The act required notice by publication to be given of any
petition filed under its provisions, and that: `Such notice shall
state when and in what court the petition is filed, the starting
point, route and terminus of the proposed drain or drains, ditch
or ditches, or levees, and if a levee or other work is intended
Page 452
to be constructed in connection therewith, shall so state, and at
what term of court the petitioners will ask a hearing upon such
petition.' § 2.
"If the drain or drains, ditch or ditches, levee or other work
proposed to be constructed, was to pass through or over, or be
constructed upon, lands lying in different counties, the petition
could be filed in the county court of either county. § 4.
"The court in which the petition was filed was empowered to
determine all matters pertaining to the subject-matter of the
petition.
"If it appeared that the proposed drain or drains, ditch or
ditches, levee or other work, was necessary or would be useful
for the drainage of the lands for agricultural and sanitary
purposes, the court was required to so find, and appoint three
competent persons as commissioners to lay out and construct such
proposed work. § 5.
"It was made the duty of the commissioners to examine the
lands proposed to be drained, and those over or upon which the
work was proposed to be constructed, and determine: `(1) Whether
the starting point, route and terminus of the proposed drain or
drains, ditch or ditches, and if a levee or other work is
proposed, the proposed location thereof, is or are in all
respects proper or most feasible, and if not, what is or are so;
(2) The probable cost of the proposed work, including all
incidental expenses, and the expenses of the proceeding therefor;
(3) What lands will be injured thereby, and the probable
aggregate amount of all damages such lands will sustain by reason
of the laying out and construction of the proposed work; (4) What
lands will be benefited by the construction of the proposed work,
and whether the aggregate amounts of benefits will equal or
exceed the costs of constructing such work, including all
incidental expenses and costs of the proceeding.' § 9.
"If the commissioners found and reported that the expense
would more than equal the benefits, the proceedings were to be
dismissed; if less, then they were to have plans, profiles,
surveys, and specifications made, and report the same to the
court. §§ 10, 11.
Page 453
"The commissioners were not confined to the point of
commencement, route, or terminus of the drains or ditches, or to
the number, extent, or size of the same, or the location, plan,
or extent of any levee or other work, as indicated in the
petition. But they were directed to locate, design, lay out, and
plan the same as they thought would drain the petitioner's land
with the least drainage, and for the greatest benefit of all the
lands to be affected thereby. All plans proposed by the
commissioners could be changed by the court on the application by
them or by any person interested. § 12.
"The act required due notice by publication to be given of any
application to confirm the report, and the privilege was given to
all persons interested to appear and contest its confirmation, or
to ask any modification thereof. If no objections were made to
the report, or if the objections made to it were not well taken,
it was to be confirmed. If the court was of opinion that the
report should be modified, it was given authority to make such
modification as would be equitable. §§ 13, 14.
"If the report was confirmed, then the court was authorized to
impanel a jury of twelve men competent to serve as jurors, who,
being duly sworn, were required to assess damages and benefits
according to law; or the court could direct that a jury be
impaneled before a justice of the peace for the assessment of
damages and benefits, in which case the commissioners could apply
to any justice of the peace in the county, who should
immediately, without the formality of any written application,
proceed to summon and impanel a jury of six men competent to
serve as jurors, who should be sworn in the same manner as was
provided in case of a jury impaneled by the court in which the
proceeding is pending, the justice to enter upon his docket a
minute of such proceeding before him, and the names of the
jurors. § 16.
"The duty of the jury was to examine the land to be affected
by the proposed work; ascertain to the best of their ability and
judgment the damages and benefits sustained by or accruing to the
land affected by the construction of the proposed work; make out
an assessment roll, in which should be
Page 454
set down in proper columns the names of owners, when known, a
description of the premises affected, in words or figures, or
both, as was most convenient, the number of acres in each tract,
and, if damages were allowed, the amount of the same; and in case
damages were allowed to, and benefits assessed against the same
tract of land, the balance, if any, should be carried forward to
a separate column for damages or benefits, as the case might be.
§ 17.
"In making the assessment the jury were required to award and
assess damages and benefits in favor of and against each tract of
land separately, in the proportion in which such tract of land
would be damaged or benefited; and in no case should any tract of
land be assessed for benefits in a greater amount than its
proportionate share of the estimated cost of the work and
expenses of the proceeding, nor in a greater amount than it would
be benefited by the proposed work, according to the best judgment
of the jury. § 18.
"The commissioners, or any person who made objection to the
assessment, were given the right of appeal from the finding of
the jury. If, upon such appeal, there were corrections of the
assessment, or if the assessment roll was confirmed, then the
roll was to be spread upon the record, with right of appeal or
writ of error therefrom. §§ 24, 26.
"At the time of confirming the assessment the court could
order the assessment of benefits to be paid in instalments of
such amounts and at such times as would be convenient for the
accomplishment of the proposed work; otherwise, the whole amount
should be payable immediately upon the confirmation, and should
be `a lien upon the lands assessed until paid.' § 27.
"It was made the duty of the clerk, immediately after the
entry of the order of confirmation, to make out and certify to
the commissioners a copy of the assessment roll, and also to make
out and deliver to the commissioners separate copies of the same,
pertaining to the lands situated in different counties, to be
recorded in the recorder's office of the respective counties in
which the lands were situated, and which should be notice of the
lien thereon to all persons. § 28.
"Upon receiving a certified copy of such assessment, the
commissioners
Page 455
could proceed to collect the same, or any instalment thereof, or
certify the assessment of any instalment thereof which they might
be entitled to collect at the time to the county clerk of the
county in which the lands assessed were situated, who was
required to `extend the same, in a separate column, upon the
proper tax books for the collection of state and county taxes:
Provided, the owner, agent or occupant of any land through or on
which any drain, ditch or levee shall be constructed shall have
the right, under the direction of said commissioners, within such
time as they shall prescribe, to construct such drain, ditch, or
levee, or any part thereof, at his own cost; and in case he shall
so construct the same, he shall be allowed for the value thereof
upon his assessment.' § 29.
"In case the assessment for benefits should be payable in
instalments, such instalments were to draw interest at the rate
of ten per centum per annum from the time they became payable
till they were paid, and the interest could be collected and
enforced as part of the assessment. § 30.
"Other sections of the act are as follows:
"` § 31. When the commissioners shall have elected to collect
any assessment or instalment thereof themselves, or shall not
have caused the same to be extended upon the state and county tax
books, and any assessment or instalment shall be due and
uncollected, and as often as any instalment shall become due and
be uncollected at the time for making return of the tax books for
the collection of state and county taxes next succeeding the time
of the receipt of the certified copy of the assessment by the
commissioners, or the falling due of any instalment, the
commissioners may return a certified list of such delinquent
lands, with the amount due thereon, to the officer who shall be
authorized by law to receive the return of the books for the
collection of state and county taxes in the counties or
respective counties where the lands are situated, who shall
proceed to collect and enforce the same in the same manner as
other taxes or special assessments are enforced, and shall pay
over the amounts so collected to the commissioners.'
"` § 34. The commissioners, when appointed and qualified
pursuant to this chapter, may do any and all acts that may be
Page 456
necessary in and about the surveying, laying out, constructing,
repairing, altering, enlarging, cleaning, protecting and
maintaining any drain, ditch, levee or other work for which they
shall have been appointed, including all necessary bridges,
crossings, embankments, protections, dams and side drains, and
may employ all necessary agents and servants, and enter into all
necessary contracts, and sue and be sued.
"` § 35. The commissioners may borrow money, not exceeding in
amount the amount of assessment unpaid at the time of borrowing,
for the construction of any work which they shall be authorized
to construct, and may secure the same by notes or bonds, bearing
interest at a rate not exceeding ten per centum per annum, and
not running beyond one year after the last assessment on account
of which the money is borrowed shall fall due, which notes or
bonds shall not be held to make the commissioners personally
liable for the money borrowed, but shall constitute a lien upon
the assessment for the repayment of the principal and interest
thereof.'
"` § 37. All damages over and above the benefits to any tract
of land shall be payable out of all the amounts assessed against
other lands for benefits, and shall be paid or tendered to the
owner thereof before the commissioners shall be authorized to
enter upon his land for the construction of any work thereon. In
case the owner is unknown, or there shall be a contest in regard
to the ownership of the land, or the commissioners cannot, for
any reason, safely pay the same to the owner, they may deposit
the same with the clerk of the court, and the court may order the
payment thereof to such party as shall appear to be entitled to
the same.'
"` § 45. Any person who shall wrongfully and purposely fill
up, cut, injure, destroy or in any manner impair the usefulness
of any drain, ditch or other work constructed under this chapter,
or that may have been heretofore constructed, for the purposes of
drainage or protection against overflow, may be fined in any sum
not exceeding two hundred dollars, to be recovered before a
justice of the peace in the proper county; or if the injury be to
a levee, whereby lands shall be overflowed, he may, on conviction
in any court of competent jurisdiction, be fined in any
Page 457
sum not exceeding five thousand dollars, or imprisoned in the
county jail not exceeding one year, or both, in the discretion of
the court. All complaints under this section shall be in the name
of the people of the State of Illinois, and all fines when
collected shall be paid over to the proper commissioners, to be
used for the work so injured.
"` § 46. In addition to the penalties provided in the
preceding section, the person so wrongfully and purposely filling
up, cutting, injuring, destroying or impairing the usefulness of
any such drain, ditch, levee or other work, shall be liable to
the commissioners having charge thereof for all damages
occasioned to such work, and to the owners and occupants of lands
for all damages that may result to them by such wrongful act,
which may be recovered before a justice of the peace, if within
his jurisdiction, or before any court of competent jurisdiction.'
Laws of Ill. 1871-2, pp. 356-365.
"Proceeding under the above act, numerous owners and occupants
of the lands known at the time as the `Mississippi bottom lands,'
in the counties of Adams, Pike, and Calhoun, Illinois, filed a
petition in the county court of Pike County, expressing their
desire to construct drains and ditches, and also a levee and
other works, across the lands of others in that bottom, for
agricultural and sanitary purposes, so as to reclaim the bottom
land from overflow by the waters of that river, `in order to make
the location salubrious, and render the soil available for
tillage and otherwise develop the agricultural resources of said
bottom land.' They represented that `said bottom land has been
from time immemorial, and now is, a low and nearly level tract of
land formed by deposits of alluvion from said river; that it is
traversed throughout nearly its entire length by a slough or
bayou known as `the Sny Cartee slough;' that said bottom land is
also variously intersected by other and smaller sloughs, some of
which are short channels putting out from the river and returning
thereto, while others start from and return to the said Sny
Cartee slough, and others are, again, lateral branches connecting
said Sny Cartee slough with the river; that the said bottom land
is below the level of the high water mark of said river, and
absolutely without protection therefrom;
Page 458
that the greater part thereof is nearly every year inundated by
the waters of said river, and all are subject to inundation, and
have been repeatedly submerged by said overflow, the river on
such occasions being a stream from about four to eight miles
wide, and running from bluff to bluff on either side;' `that, by
reason of said exposure to overflow, the mass of the said bottom
land has been allowed to remain in its primitive condition, and
will so remain unless reclaimed; that it is but sparsely
populated, and that the occupants thereof support themselves
almost exclusively by the cultivation of the soil; that they are
every year greatly embarrassed in putting in their crops by the
peculiar character of the rise in said river, which has no
regular time for reaching its maximum height, nor any fixed
number of rises during a season; that their crops when planted
are frequently destroyed by an unexpected rise in said river, and
in such cases they are either compelled to replant their crops,
or the crops are destroyed so late in the year as to render the
operations of the season a total failure;' `that upon the
subsiding of the waters the said bottom land is left in a wet and
marshy condition, so that the stagnant water is left on various
parts of its surface, and the succeeding heat of summer and
autumn evolve therefrom malaria and disease;' `that by reason of
said facts said bottom land not only now remains sparsely
populated, while the territory around it is thickly settled, but
the same is practically incapable of supporting any further
population, so that the average taxable value of the lands now
subject to overflow is no more than about fifty cents per acre,
and the present occupants of said bottom lands have been in most
cases induced to remain solely by the prospect of the ultimate
reclamation of said land, a consummation which has been the theme
of their enterprise and endeavor ever since the settlement of the
bottom land described.'
"The petitioners called the attention of the court to the act
of 1871, and asked the appointment of commissioners, in
accordance with the provisions of that law, `for the purpose of
constructing a levee on the Mississippi River, from a point on
said river at or near the head of the Sny Cartee, in the county
of Adams and State of Illinois, and thence in a southerly
direction
Page 459
along or near the east bank of the Mississippi River, as shall be
deemed advisable for the safety of the proposed work, to a point
at or near the mouth of Hamburg Bay, in the county of Calhoun,
State of Illinois, and to do and perform any and all acts, as
provided in said law, for the surveying, laying out, and
constructing, altering, repairing, enlarging, protecting, and
maintaining, said proposed levee, or to render it efficient for
the protection and reclamation of the lands lying east of the
said levee, and between it and the bluffs, and now subject to
overflow by the Mississippi River and other streams.'
"After asking a confirmation of the report of the
commissioners, if they found and reported that the proposed levee
could be constructed at a cost not exceeding $5 per acre for all
lands benefited and reclaimed from overflow, the petitioners
prayed: `That the assessment for benefits upon the property to be
affected by the construction of said work shall be paid in ten
equal annual instalments, the first instalment being due and
payable three years after the date of the commissioners' report
and the filings of the plans and specifications with the court,
and one-tenth of such assessment, with accrued and accruing
interest, each year thereafter, until the whole amount shall have
been paid.'
"The county court of Pike County having found that the
proposed work was necessary, appointed in 1871, William Dustin,
George W. Jones and John G. Wheelock commissioners, and they duly
qualified and acted in that capacity. In the same year the
commissioners reported the result of their examination, and in
their report indicated, by map and profiles, the work to be done.
The report was confirmed without objection, and a jury of twelve
was organized to assess damages and benefits, and make an
assessment roll. The assessments were made and put upon the
record of the court. Certified copies of the assessments were
recorded in Pike, Adams, and Calhoun Counties. An order was made
requiring the assessments to be paid in ten annual instalments,
with interest from October, 1872.
"In conformity with the order of the court, the commissioners
issued bonds from time to time, upon estimates made by the
engineer as the work progressed, to be used in the construction
Page 460
and completion of the work. They were delivered directly to the
contractors as they were earned. The first issue of bonds
amounted to $499,500, of which Francis Palms purchased $202,500.
A second issue was made, amounting to $148,500, which were also
purchased by him. That issue was the result of a second petition
under the act of 1871, proceedings under which resulted in
further assessments.
"It may be here stated that by an act of the general assembly
of Illinois, approved April 9, 1872, it was provided that
whenever it appeared by the findings of the court before which
proceedings were pending or might be had, under the act of April
24, 1871, that any drain, ditch, levee, or other work authorized
by that act to be made would be of public benefit for the
promotion of the public health, or in reclaiming or draining
lands, the same should be deemed `a public work;' and that it
should be lawful for the commissioners appointed under the act of
1871 to register at the office of the auditor of public accounts
any bonds issued by them under order of court; such registration
to show the date, amount, number, maturity, and rate of interest
of the bonds, and the fact of such registration to be certified
by the auditor, under his seal of office, upon each bond. The act
contained other provisions, but it is not necessary to refer to
them.
"All of the bonds issued by the commissioners were in the same
form. We give here a copy of one of them, issued in 1872:
"`No. 6. United States of America. $500.
"`Sny Island Levee Bond.
"`State of (Ten per cent interest bond.) Illinois.
"`The commissioners appointed by the county court of Pike
County and State of Illinois, on the petition of John Morris and
others, to locate and construct a levee on the Mississippi River,
in the counties of Adams, Pike, and Calhoun, by virtue of an act
of the general assembly of the State of Illinois entitled "An act
to provide for the construction and protection of drains,
ditches, levees and other works," and by power vested in them by
said act, acknowledge themselves, as such commissioners,
Page 461
held and firmly bound unto John G. Wheelock or bearer in the sum
of five hundred dollars, lawful money of the United States,
payable in the city of New York, at the bank or agency used by
the treasurer of the State of Illinois, on the first day of
October, A.D. 1882, with interest at the rate of ten per cent per
annum, interest payable on the first day of July in each year, on
the surrender of annexed coupons as severally due.
"`This bond is one of a series of five hundred thousand
dollars issued for the purpose aforesaid, and after an order of
the county court of Pike County aforesaid approving of the
assessment made by a jury of the cost of said levee.
"`In witness whereof, the said commissioners,' etc.
"Annual interest coupons, payable to bearer, were attached to
each bond.
"On each bond was endorsed a certificate in these words:
"`Auditor's Office, Illinois.
"`Springfield, Nov. 12th, 1872.
"`I, Charles E. Lippincott, auditor of public accounts of the
State of Illinois, do hereby certify that the within bond has
been registered in this office this day pursuant to the
provisions of an act entitled "An act to provide for the
registration of drainage and levee bonds, and secure the payment
of the same," approved April 9th, 1872, and in force July 1st,
1872.
"`In testimony whereof,' etc.
"At the January term, 1876, of the Supreme Court of Illinois,
the case ofUpdikev.Wright,81 Ill. 49, was decided. That
case involved, among other questions, the constitutionality of
the above act of April 24, 1871, providing for the construction
and protection of drains, ditches, levees, and other works. The
case related to certain proceedings taken for the construction of
a levee on the banks of the Wabash River. The representation to
the county court was that the lands of the petitioners were
subject to overflow from that river, that their fences and crops
were liable to be swept away and destroyed by such overflow, and
that the same could be prevented by an earthwork levee.
Page 462
"After observing that the above act of 1871 was evidently
passed in view of article4, section 31, of the Illinois
constitution of 1870, declaring that `the general assembly may
pass laws permitting the owners or occupants of lands to
construct drains and ditches for agricultural and sanitary
purposes across the lands of others,' Chief Justice Scott,
delivering the unanimous judgment of the court, said:
`Apparently, an effort was made to have the law enacted conform
to the constitutional provisions in every particular. Hence it is
declared the work to be done is the construction of drains and
ditches for agricultural and sanitary purposes, and if it becomes
necessary, in the construction of a system of drainage, that a
"levee or other work" be adopted to make that system available,
such levee or other work may be constructed under the provisions
of the statute. But it is nowhere intimated the owners or
occupants of land may undertake, under the provisions of this
law, the building and maintenance of an immense levee on the
borders of a river, not connected with any system of drainage by
ditches. Neither the constitution nor the statute contemplates
any such work. What was in the minds of the framers of the
constitution, and the legislators who enacted the law in
pursuance of its provisions, must have been the drainage of lands
by means of drains and ditches, and what is said in the statute
on the subject of a "levee or other work" is always in connection
with a system of drainage in that mode. The work outlined by the
constitution and the statute is comparatively insignificant, and
may be done at no great cost; but that which is undertaken in
this case is the construction of a levee on the banks of the
Wabash River, of many miles in length, and estimated to cost a
great many thousands of dollars. No system of drainage by drains
and ditches was planned, nor deemed necessary for agricultural
and sanitary purposes. The representation to the county court is,
the lands of the petitioners are subject to overflow from the
Wabash River; that their fences and crops are liable to be swept
away and destroyed by such overflow; and that the same can be
prevented by an earthwork levee. The undertaking is one of great
magnitude, and will require the expenditure of large sums of
money. The assessment
Page 463
on complainant's, land is over $10,000. And the allegation in the
bill is that, unless all further assessments proposed to be made
be arrested, the levee will cost more than the land is worth. Any
construction of the statute that would warrant the owners or
occupants of lands to enter upon such an immense and costly work
seems forced and unreasonable. It is only in connection with
drainage for agricultural and sanitary purposes that "levees or
other works" may be undertaken, as auxiliary to the drainage of
the lands. Our opinion is, this is the only construction the
statute will bear, consistently with the constitution; otherwise,
one owner, whose lands are subject to overflow at certain seasons
of the year from a river, could set in motion the proceedings for
the erection of a levee sufficient to protect his lands, no
matter how expensive, and have the cost levied upon the lands of
others in the vicinity which commissioners appointed by the court
might deem benefited by the improvement. Such a work cannot be
said to be draining lands by drains and ditches over the lands of
others; nor is such a levee, in any just sense, in the language
of the statute, "necessary to the drainage of the lands." The
work of constructing a great levee along the banks of a river
subject to overflow, which defendants are about to do, is not
embraced within the provisions of the statute, and is therefore
without authority of enabling law.'
"But the court proceeded to observe that the decision could be
placed on the ground that the general assembly possessed no power
under the constitution to vest commissioners or juries selected,
or the county court, with authority to assess and collect taxes
or special assessments for the contemplated improvement. It said:
`Section 5, article 9, of the constitution of 1848, which
declared "the corporate authorities of counties, townships,
school districts, cities, towns and villages may be vested with
the power to assess and collect taxes for corporate purposes,
such taxes to be uniform in respect to persons and property
within the jurisdiction of the body imposing the same," was
always construed by the decisions of this court as a limitation
upon the power of the general assembly to grant the right to
assess and collect taxes to any other than the corporate
Page 464
or local authorities of the municipalities or districts to be
taxed.Board of Directorsv.Houston,71 Ill. 318;Harward
v.The St. Clair and Monroe Levee and Drainage Co.,51 Ill. 130;
South Park Commissionersv.Salomon,51 Ill. 37;Gage
v.Graham,57 Ill. 144;Hesslerv.Drainage Commissioners,
53 Ill. 105. It was also held that power in the legislature was
subject to the further limitation that a local burden of taxation
or special assessments could not be imposed upon a locality
without the consent of the taxpayers to be affected. That section
of the constitution of 1870, upon this subject, provides: "The
general assembly may vest the corporate authorities of cities,
towns and villages with power to make local improvements by
special assessments, or by special taxation of contiguous
property, or otherwise. For all other corporate purposes, all
municipal corporations may be vested with authority to assess and
collect taxes, but such taxes shall be uniform in respect to
persons and property within the jurisdiction of the body imposing
the same." The clause in the present constitution, like that in
the constitution of 1848, must be construed as a limitation on
the power of the legislature. Giving it that construction, the
general assembly can only vest cities, towns, and villages with
power to make local improvements by special assessments or
special taxation upon contiguous property benefited by such
improvement. By necessary implication, it is inhibited from
conferring that power upon other municipal corporations or upon
private corporations. Only cities, towns, and villages are within
the constitutional provisions; and, although other municipal
corporations may be vested with power to assess and collect taxes
for corporate purposes, the limitation is absolute, such taxes
shall be uniform in respect to persons and property within the
jurisdiction imposing the same. With equal propriety, this clause
of the present constitution must be regarded as restricting the
general assembly in conferring the power to levy and collect
taxes, either general or special, to the mode and manner therein
indicated. We do not understand the legislature possesses plenary
power, unlimited and unrestricted, to invest whomsoever it may
choose with authority to assess and collect either special
assessments
Page 465
or taxes for every conceivable purpose. As we have seen, only
cities, towns, and villages may levy special assessments or
special taxation for local improvements, and all other
municipalities can only be vested with jurisdiction to assess and
collect taxes for corporate purposes; and that, too, under the
positive inhibition such taxes shall be uniform in respect to
persons and property. It would seem, therefore, to follow, as a
corollary from the propositions stated, that neither the
commissioners or the juries selected, nor the county court, is
such a body as, under the constitution, may be given power to
make local improvements by special assessments or by special
taxation upon contiguous property. There is still another
consideration that has an important bearing upon the decision of
the case. The clause of the constitution we have been
considering, like that in the constitution of 1848, must be
understood, in the light of the decisions of this court, as
forbidding the general assembly from imposing a burden by
taxation upon any locality, without the consent of the citizens
affected. Under this law, the people whose property is subject to
taxation or assessments have never given any consent to it, if we
exclude those who may have signed the petition addressed to the
county court. No opportunity was afforded them to do so, nor does
the law make any provision for submitting the question to a vote,
to ascertain the will of those whose property is subjected to
this local burden. It is imposed upon them under the statute, by
the decision of the county court. Obviously, that section of the
constitution that declares "the general assembly may pass laws
permitting the owners or occupants of lands to construct drains
or ditches, for agricultural and sanitary purposes," implies that
the community whose property is to be taxed may have the right of
election in the matter. Otherwise, an onerous burden may be
imposed upon them, without their consent, and such proceedings
might be had as would result in the deprivation of property. How
can the land owners be permitted to construct drains and ditches,
unless some election is guaranteed to them? The language employed
implies voluntary action. Illustration will make the
inconsistency of the present law apparent. For example, the
privilege is given to any occupant,
Page 466
as well as the owner of land, of presenting a petition to the
county court. Should the construction contended for prevail, a
tenant residing upon land adjacent to a river subject to overflow
might present a petition, and, under the decision of the court,
the work of erecting a levee miles in length, and costing large
sums of money, might be entered upon, and the expenses assessed
upon the property in proximity to the river that might in any
degree be deemed benefited. An intention to confer such
unwarranted power upon one man, who would himself be subject to
none of the burdens imposed, ought not to be imputed to the
legislature. Any laws not permitting an election as to the
propriety of undertaking the work are vicious, and within the
inhibition of the constitution. It does not militate against this
construction that the land owner may appear before the county
court when the petition is presented, and resist the application,
or may contest the assessment upon his property when made.
Whether the contemplated work shall be undertaken, and his
property subjected to taxation, is not made to depend upon his
election, but upon the decision of the court. It would be a
solecism to call that privilege an election.'
"At the same term of the court, the case ofWebsterv.The
People(unreported) was decided. That case related to the above
work undertaken under the authority of the county court of Pike
County. The efforts of the commissioners to collect instalments
of interest on the assessments were resisted by certain land
owners. The Supreme Court of Illinois said: `The principal
questions raised and discussed in this case are the same as in
Updikev.Wright, decided at the present term, and for an
expression of our views reference is made to the opinion in that
case. For the reasons there given, the judgment in this case will
be reversed, and the cause remanded.'
"It may be well to state in this connection that the Supreme
Court of the United States, inHarterv.Kernochan,103 U.S. 562,
570, referring to section5, article9, of the Illinois
constitution, declaring that the corporate authorities of
counties, townships, school districts, cities, towns, and
villages may be vested with power to assess and collect taxes for
corporate purposes,
Page 467
has said: `It is the settled law of the State, as heretofore
recognized by this court, that this constitutional provision was
intended to define the class of persons to whom the right of
taxation might be granted, and the purposes for which it might be
exercised, and that the legislature could not constitutionally
confer that power upon any other than corporate authorities of
counties, townships, school districts, cities, towns, and
villages, or for any other than corporate purposes.County of
Livingstonv.Darlington,101 U.S. 411;'Weightmanv.
Clarke,103 U.S. 256,259.
"After the above decision inWebsterv.The People,
certain land owners undertook to provide for the protection of
their lands from overflow by the execution of deeds of trust to
the commissioners. Under these deeds as much, perhaps, as $30,000
was raised and expended by the commissioners.
"In May, 1878, while those deeds were in force, Palms, on
behalf of himself and others instituted a suit in equity in the
Circuit Court of the United States for the Southern District of
Illinois against the levee commissioners. The bill in that case
recited the above legislation, and the proceedings resulting in
the appointment of the commissioners, the assessments by the
jury, and the issuing of bonds by the commissioners, and charged
that the expense of the work was paid by the commissioners with
money furnished by Palms and others, of which, it was alleged,
the owners and occupants of the lands benefited and assessed were
at the time well aware. Referring to the twenty-ninth section of
the act of 1871, prescribing the duties of the commissioners, and
also to the above act of 1872, that bill alleged that the
commissioners made efforts `to collect the amount of some of the
instalments of said assessments, and the interest thereon, but
the courts of the State of Illinois, before whom the question of
the collection of such assessments and the instalments thereof
under said statutes was brought, refused to give effect to the
provisions of said acts, so far as they purported to authorize
the collection of the same by the collectors of taxes under
extensions on the tax books; and no means are left for the
collection of such assessments and interest, except such as may
be supplied by the general authority of
Page 468
the courts that have jurisdiction of such questions. And your
orator would further show unto your honors: That the whole amount
of the moneys advanced by him, and by other purchasers of the
bonds, with interest thereon, remains unpaid, and that said
commissioners remain and continue in the actual use and
possession of the said levee and other works constructed with the
moneys borrowed of your orator and others, by the said
commissioners, under the proceedings aforesaid; and they do also,
by and under the direction of the owners of said lands, keep and
use the said works to protect their own lands, and the lands of
the other owners and occupants, from overflow from said river.
And your orator further shows unto your honors: That the said
commissioners refuse to pay to your orator and the other holders
of said bonds, the whole or any portion of their principal —
money loaned to them for the purposes aforesaid, or interest, and
they also refuse to enforce the collection of said assessments on
the several tracts of land described in said Exhibit A, or the
interest thereon, as it is their duty to do, and the owners and
occupants of said lands refuse to pay said assessments, or the
interest thereon, so that the moneys loaned by your orator for
the construction of said works is wholly lost, together with the
interest thereon. And your orator would further show unto your
honors: That the owners and occupants of said lands are very
numerous, as will appear by the lists of land and the names of
the owners thereof, as stated and set forth in the said Exhibit
A, and the names of many of them are unknown to your orator, but
all of them reside in other of the States of the United States
than the State of Michigan; the greater number of them are
residents and citizens of the States of Illinois and Missouri;
and that the said commissioners, John G. Wheelock, George W.
Jones, and Benjamin F. Westlake are citizens of the State of
Illinois, and of the Southern District aforesaid.'
"The relief asked was a decree directing an account to be
taken of `the moneys loaned and advanced' by Palms to the
commissioners, `to be used by them in the purchase and
acquisition of the lands required for the location and
construction of the said levee and other works, and for the
construction and
Page 469
the completion of the said levee and all the works and
improvements connected therewith, together with interest thereon
at the rate of ten per cent per annum, according to the terms of
said bonds and the coupons thereto attached;' the amount due
Palms being ascertained, then that such amount be adjudged a lien
in favor of Palms `upon the said levee and other works, and the
lands acquired, owned, and held by the said commissioners for the
site of said levee, and all other improvements, and upon the said
assessments upon all of the said lands described in the said
Exhibit A, for the benefits to said lands afforded by the said
levee and other works, and the interest thereon;' and that `the
said commissioners proceed at once, under the order and direction
of your honors, to collect such assessments upon all and every of
said tracts of land and the interest that has, or that may
hereafter, accrue thereon, or so much thereof, from time to time,
as will be sufficient to pay the interest money or the principal,
payable to your orators as the same falls due; or that it may
please your honors to appoint one or more competent persons, as
receiver or receivers, to take possession and charge of the said
levee and other works, and manage and control the same, together
with all the books, papers, and properties of said commissioners,
and with authority to collect, under the order and direction of
this honorable court, the said assessments and interest thereon,
as often and in such sums as may be sufficient to meet and
satisfy the claims of your orators as aforesaid.'
"The commissioners answered in that case, insisting, among
other things that the bonds in question having been registered
with the auditor of public accounts under the act of 1872, they
were not responsible for the failure to collect the money to pay
interest, and were without any duty in respect to the said
assessments. They referred to the fact that certain land owners
had at all times opposed the proceedings instituted to assess
their lands for benefits on account of the said levee, and
refused to pay interest on assessments, in consequence whereof
the township collector had returned nearly all the land owners
involved in the proceedings as delinquents; that thereupon the
county collector made application to the Pike County Court to
Page 470
enforce said assessments against the delinquent lands; that some
of the land owners opposing the assessments filed objections to
judgment for such assessments, setting up that the law under
which the assessments were imposed was unconstitutional; that the
commissioners employed counsel to prosecute the application for
judgment and for the collection of said assessments, and the
county court gave judgment against the lands; that the land
owners appealed to the circuit court, which affirmed the judgment
of the county court; that thereupon the land owners carried the
case by appeal to the Supreme Court of the State, stipulating
that one appeal should be decisive of all the assessments; that
the commissioners themselves employed counsel in the argument of
the case in the Supreme Court of the State, and said court
decided adversely to the right to collect said assessments; and
that such decision of the highest court of the State was decisive
of any question of right on their part to enforce assessments.
The case referred to by the commissioners in their answer was the
above case ofWebsterv.People. The commissioners also
averred that `as such commissioners they are not now, and never
have been, in any actual possession of any part of said levee or
other work, except for the purpose of constructing, maintaining,
and repairing the same; that they have never had title to any
portion of the said levee, as they are likewise advised and
believe on account of the unconstitutionality of the law under
which said work was done; and that since said law was declared
unconstitutional these respondents, as commissioners, have only
exercised authority over said levee in warning parties against
injuring said levee, but this was in their private capacity, at
the request of a portion of the land owners, who supplied them
with funds for that purpose, in whose behalf they have, in like
private capacity, tried to keep said levee in repair.'
"On the 13th day of March, 1879, that cause was heard upon
bill and answer in the Circuit Court of the United States. By
that court it was adjudged and decreed `that the said defendants
[the commissioners] take, retain, and hold the right of way,
levee, and other works and property in question, and described in
the pleadings, and keep, take care of, preserve,
Page 471
and protect the same, under the order and control of this court,
for the benefit and on behalf of the complainant and all other
parties interested therein, or who may hereafter be found to be
interested in the same, in whole or in part.'
"It was further decreed `that the complainants and all other
persons who may have loaned or advanced money to the defendants
for the acquisition by those of the said right of way, or for the
construction of the said levee and other works and property
connected therewith, or who may be the holder of any of the bonds
issued by said defendants to raise money for the purposes
aforesaid, or to pay for such right of way or the construction of
such levee and other works, or to pay any of the proper expenses
connected therewith, who may come into this suit, contributing
their proper proportion to the expenses thereof, have liberty to
go before the master and produce these said bonds and coupons for
interest thereon, and make proof of the amount due them of
principal and interest on account of such loans, advances, and
bonds; and the cause is referred to John A. Jones, master in
chancery, for the purposes aforesaid, who will, upon the
application of the complainants, or other persons who may come
into the cause as complainants upon the terms hereinbefore
prescribed, and reasonable notice to the defendants or their
solicitors, proceed to take the proofs of the amounts due to the
complainants, and allow parties who may have before that time
come into the cause, and, after such proofs are taken, make a
report to the court of the amounts found by him to be due each
and any party who may appear before him, and the ground, and
facts of his several findings and conclusion;' and `that after
the coming in of the master's report of the amount or amounts
found by him to be due to the complainant or other persons who
may come into the cause as aforesaid, and the approval of said
report, and the determination and adjustment by the court of the
amount or amounts due to the complainant or other persons who may
come into the cause for moneys advanced or loaned on bonds held
as aforesaid, the said complainants or other persons have the
liberty to exhibit and file their supplemental bill or bills
against any or all the present or former
Page 472
owners of the said lands alleged in said bill to be benefited by
the said levee and other works, or who have heretofore or who may
now be in any way interested in the said levee and other works,
or the lands benefited thereby, to compel them to contribute to
the payment of the amount or amounts which may be found due to
the said complainant or other persons as aforesaid, and for such
other and further relief as they may be advised they are entitled
to; and the court reserves all other questions of relief to the
parties, and of the costs, to be considered hereafter. And the
said complainant is at liberty to use the names of the defendants
in any such proceeding by way of supplemental bill, if they are
advised it is necessary to do so, upon rendering them a
sufficient indemnity against all costs and expenses.'
"The master to whom the cause was referred to ascertain the
amount of the several bonds and coupons made his report, showing
the names of various persons, and the amount of bonds held by
them, respectively. The amount reported as due to Francis Palms
on the bonds held by him was $221,228.26. The total amount found
due to him and certain parties who became co-plaintiffs with him
in the cause was $304,908.26. In the decree confirming the
master's report it was declared: `And it is further ordered,
adjudged, and decreed by the court that the said several sums of
money so found to be due to the said complainants as aforesaid
are a lien upon the assessments made under the order of the
county court of Pike County, in the State of Illinois, upon the
lands described in the bound book, Exhibit "A" with complainants'
bill, and upon the said lands, as provided in the twenty-seventh
and thirty-seventh sections of an act of the general assembly of
the State of Illinois entitled "An act to provide for the
construction and protection of drains, ditches, levees and other
works," approved April 24, 1871. And it further appearing to the
court that the defendants, commissioners under the several orders
of the county court of Pike County, aforesaid, have no money in
their hands for the payment of the amounts so found and adjudged
to be due to the said several complainants, and it also appearing
to the court from the allegations of the complainants' bill, and
not denied by the said
Page 473
defendants in their answer thereto, they have taken no steps for
the collection of the assessments made upon said lands for the
repayment of the moneys borrowed by them, and the bonds and
coupons issued by them, it was ordered by the court that the
complainants have the right and liberty to proceed in this court,
in the name of the said defendants as complainants as such
commissioners, or in their own names as complainants, against the
lands described in the said Exhibit "A," and the owners thereof,
or such of such lands and the owners thereof, or other persons,
and said commissioners, as they may be advised, are liable for or
bound to pay the sums found to be due to the complainants as
aforesaid, jointly or severally, by a bill or bills, original,
supplemental, or otherwise, as they may be advised, for the
recovery of the amounts found due them as aforesaid, and also for
the costs of this suit.'
"It should be here stated that after the decision inWebster
v.People, and after the institution by Palms of the suit in
the Circuit Court of the United States, the following amendment
to the constitution of Illinois was adopted: `The general
assembly of Illinois may pass laws permitting the owners of lands
to construct drains, ditches and levees for agricultural,
sanitary or mining purposes across the lands of others, and
provide for the organization of drainage districts, and vest the
corporate authority thereof with power to construct and maintain
levees, drains and ditches, and to keep in repair all drains,
ditches and levees heretofore constructed under the laws of this
State by a special assessment upon the property benefited
thereby.' 1 Starr Curtis' Anno. Stat. Ill. p. 122.
"Subsequently the legislature of Illinois passed an act which
took effect May 29, 1879, entitled `An act to provide for the
construction, reparation and protection of drains, ditches and
levees across the lands of others for agricultural, sanitary and
mining purposes, and to provide for the organization of drainage
districts.' 1 Starr Curtis' Anno. Stat. Ill. p. 919.
"Some of the defendants in the present case made efforts to
secure the passage of the act last referred to. That act provided
for the formation of drainage districts with authority not only
to construct drains, ditches, and levees for agricultural,
Page 474
sanitary, and mining purposes, but also to maintain and keep in
repair any such drains, ditches or levees `heretofore constructed
under any law of this State;' and, in cases where a levee had
been theretofore built `under any law of this State,' the annual
assessment for keeping the same in repair was made due and
payable on the first of September annually.
"Subsequently, on the 26th of January, 1880, some of the land
owners whose lands were described and included in the original
assessments and in the original bill filed by Palms instituted
proceedings under the act of 1879. In their petition they
described the route and terminus of the levee, alleging that the
levee `was constructed, under the laws of Illinois then in force,
in the counties of Adams, Pike, and Calhoun, for the years 1872,
1873, and 1874.' They further alleged that, by proper repair and
maintenance of the levee, the lands aforesaid (which are alleged
to be part of the lands described in the original bill and in the
present bill, amounting in the aggregate to about 90,000 acres)
would be reclaimed and brought into cultivation; that, in
addition, it would greatly improve the sanitary condition of the
locality through which the levee passed; and that it was
absolutely necessary for the health and proper drainage and
protection of the said land that the levee be repaired as
speedily as possible. They prayed that a drainage district, to be
know as `Sny Island Levee Drainage District,' be formed out of
the lands subject to periodical overflow by the Mississippi River
in the townships named, for the repair and maintenance of such
levee, according to the statute; that commissioners be appointed
under the act of 1879, with directions to do all acts provided in
the law for repairing levees, ditches, and drains, through
assessments to be ordered; and for other and further relief.
"Such proceedings were had that the county court of Pike
County duly created the Sny Island Drainage District, and in 1880
it received the surrender of the levee from the original Sny
Levee Commissioners, and now retains possession and control of
the same.
"Palms died on the 24th day of November, 1886, more than six
years after the last order made in the suit brought by him in the
Federal court.
Page 475
"The present suit was brought by his executors; the defendants
herein being the surviving Commissioners, Wheelock and Jones, and
numerous individuals who own lands within the territory described
in the proceedings instituted in the county court of Pike County
under the act of 1871.
"The bill proceeded upon the general ground that each tract of
land in question was chargeable in equity with the amounts
assessed against it under the act of 1871, with interest, and
that the plaintiffs had a lien on each tract for such sums as had
fallen due and might become due under such assessments. It
alleged that each defendant owned or claimed one or more tracts
(Exhibit `A' showing a description of the various tracts, and the
names of the persons against whom the assessments were made);
that each defendant who acquired title to any of the lands after
the assessments of 1872 and 1873 did so with full knowledge of
such assessments and the above issue of bonds, as well as of the
fact that the plaintiffs had purchased the bonds, and that the
levee was constructed with the proceeds thereof; that, with like
notice and knowledge, each of the defendants had appropriated and
used the levee for the protection of their lands, and continued
so to do; that all the defendants named in Exhibit `A'
participated in causing said bonds to be issued and sold, and the
proceeds expended by actively soliciting the passage of the act
of 1871; that before and at the passage of the act of 1871 the
reclamation and protection of the lands described in that exhibit
had been a subject of consideration and discussion amongst the
owners and occupants of the same, as well as others, and it was
understood by all parties interested in such lands that in order
to reclaim and protect the same a statute was absolutely
necessary, under the provisions of which the persons interested
in the lands could be united and organized, and a common agency
created, with authority to make all necessary plans, estimates,
and contracts for the location of the levee, and to borrow money
upon bonds or otherwise, to be secured by assessments or pledges
of the lands benefited; that the defendants, through the agency
of their co-defendant Charles M. Clark, had procured the passage
of that statute, and caused its provisions to be made known to
the
Page 476
people interested, and thereupon devised a plan for the
organization of a corporation composed of persons interested in
the lands, for the purpose of raising money to put the act into
effect; that a large number of the defendants subscribed to the
capital of that corporation in order to effect the objects of its
creation; that the other defendants purchased lands through such
last-named land owners, with full notice of the equities of the
plaintiffs; that all of the defendants who purchased after May 4,
1878, did so with full notice of said assessments, and that the
same were unpaid, and also that said original suit in the Federal
court was pending; that certain other defendants participated in
causing the said bonds to be issued and sold to the plaintiffs'
testator, and the proceeds thereof to be expended in the
construction of the levee, and in causing the said assessments to
be made by signing the original petition to the Pike County court
in the year 1872; that certain other defendants purchased lands
from other land owners who had joined in the petition, with full
knowledge of what had previously taken place; that other
defendants participated in procuring the bonds to be sold, and
the proceeds to be expended as stated, and in causing said
assessments, by signing on the 20th day of November, 1874, a
petition for a second assessment under the act of 1871; and that
other defendants purchased from or through persons of the class
last mentioned, with full knowledge of all the facts.
"The plaintiffs also alleged that certain named defendants,
after the above decision by the Supreme Court of Illinois,
knowing the levee to be constructed with the plaintiffs' money,
and having full notice of all the facts, executed to Jones,
Wheelock, and Westlake deeds of trusts; that said deeds were made
for the purpose of defeating the claims of the plaintiffs, and it
was stipulated between the trustees and the last named defendants
that no part of the funds collected by the former should ever be
applied to the payment of any indebtedness created by or on
account of the original levee; that said deeds of trust continued
in force until 1887, when the same were canceled, said Jones,
Wheelock, and Westlake having, it is alleged, devised another
scheme for defeating the claim of
Page 477
the plaintiffs; and that certain other defendants purchased from
defendants of the class last mentioned, with full notice of all
the facts.
"It was further alleged that after the decree of March 13,
1879, namely, on January 26, 1880, certain defendants named filed
a petition in the county court of Pike County setting forth that
they owned certain lands, and alleging that a certain levee (the
one heretofore described) had been constructed under the laws of
the State of Illinois; that said petition set forth the purposes
for which the levee had been constructed; that the same was in
bad repair; that, in the faith that the same would be properly
constructed and repaired, they had expended large sums of money,
had improved farms, and that all such improvements would be
washed away, unless the levee should be repaired and kept up; and
that the lands subject to overflow amounted to an aggregate of
90,000 acres. The bill set forth the substance of the petition,
and the various steps taken, as already stated, for the formation
of a new drainage district, to be known as the `Sny Island Levee
Drainage District,' and alleged that all the defendants so
joining had full notice of all the facts and of the making of the
assessments aforesaid; that certain other defendants purchased
lands from the defendants of the class last mentioned, with
notice of all the facts; that certain other named defendants,
pursuant to the statute of Illinois approved May 29, 1879, were
severally made parties to, and had notice of, all the proceedings
for the organization of the Sny Island Levee Drainage District,
as well as of the contents of the petition therefor, and were
bound by such proceedings and the appropriation of the levee
aforesaid; that certain other named defendants acquired title to
said lands, or interest therein, after July 26, 1880, and were
bound by said proceedings and the appropriation of said levee;
that certain other defendants named were heirs at law and took
title to portions of said lands from ancestors who took part in
some or all of the aforesaid proceedings; that certain other
defendants had acquired title to some of said lands by accepting
deeds of conveyance expressly recognizing the lien of plaintiffs
on said tracts; and that every one of the present defendants had
full
Page 478
notice of the claims of plaintiffs and of the facts aforesaid;
and that all of the defendants now appropriated said levee and
other works and refuse to contribute anything to the payment of
the plaintiffs.
"The bill alleged that the Sny Island Levee Drainage District
had every year made large assessments, and, contriving and
intending to defeat the plaintiffs, had caused many of the tracts
of land to be sold for non-payment of such assessments (such
sales, it was alleged, being merely colorable, as against the
rights of the plaintiffs, and mere clouds on the title to said
land); that before the construction of said levee the lands were
wet, and not worth exceeding fifty cents per acre; that the
average amount assessed against the lands for the cost of the
levee was greatly in excess of the then value of the lands, but
it was expected that the work would, when constructed, drain
every tract, and so enhance the value of the same as to make the
lands ample security for the money borrowed; that the plaintiffs,
relying on this and on the assurances of the land owners and
commissioners, purchased the bonds in question; and that the
lands were enhanced in value by said expenditures until they
became worth $25 per acre.
"It was also alleged that, if the levee had been kept up, it
would have afforded full protection, and would have caused the
lands to have continued to be good security; that defendants had
spent some money in repairing said work, but made such
improvements and repairs so unskillfully that they were
insufficient; and that by neglect of defendants the lands had
again become wet and overflowed, and were not now good security
for the plaintiffs.
"After stating that the defendants were, by reason of the
matters and things set forth in the bill, bound to preserve,
protect, improve, and repair the said levee and other works
described, by sufficient contribution in money, ratably or
otherwise, and by further assessments upon the lands, in order to
protect and keep the security of the plaintiffs adequate and
sufficient, the plaintiffs prayed that by the appointment of a
receiver with ample powers, and by other appropriate order, the
defendants should be compelled to preserve, protect, repair,
improve,
Page 479
and make said levee and other works protective of said lands, `or
to give and confer upon such receiver the power to make needful
assessments upon said lands in proportion to benefits and the
relative value of each tract thereof, and with the money arising
therefrom, or by the mortgage of such assessments and the lands
upon which they are made, raise the money necessary for the
repair and improvement of the said levee and other works, and
with the money so raised proceed to repair and improve said levee
until it is made adequate for the drainage and protection of all
of the said lands; that each and every of said defendants herein
may be enjoined by this honorable court from selling,
transferring, or assigning the title to said lands owned by them,
or any part thereof, upon which any of said assessments may rest,
except subject to the lien of said assessments, as the same shall
be determined by this honorable court, or in any manner
whatsoever changing, altering, or affecting the title thereto so
as to in anywise impair, diminish, hinder, or prejudice the lien
of said assessments thereon, or on any portion thereof, and that
the Sny Island Levee Drainage District, its officers and agents,
be enjoined from selling or offering for sale any lands covered
by any of the assessments herein in question, for any pretended
assessments or alleged liens by said district attempted to be
assessed, except subject to the lien of all assessments and
liability on said lands, respectively, as the same shall be
determined by this honorable court.'
"It was further asked in the bill that the court order,
determine, and declare the amounts due to the plaintiffs and all
other holders of bonds and coupons who would come in and
contribute to the expense of this suit, `and the amount due for
principal and interest on the several assessments made against
and upon each tract of land described in the pleadings and
exhibits, and the proportion of the amount of such assessments
upon each tract of land necessary to the payment of the amount of
the principal and interest now due upon the bonds and coupons of
your orators and others who may come into the cause and
contribute as before mentioned, and that each of the said tracts
of land be sold under the order and decree of this court for the
amount chargeable upon and against the same, unless the
Page 480
owner of the same, or some other person for him, shall, within a
day limited, pay said amount, with a just proportion of the costs
of this suit;' and also that the court would `appoint one or more
commissioners or receivers in the place and stead of the said
John G. Wheelock and George W. Jones, or appoint a commissioner
in the place of the said Benjamin F. Westlake, deceased; and, if
one or more commissioners or a receiver or receivers are
appointed in the place and stead of the said John G. Wheelock and
George W. Jones, the said Wheelock and Jones may be ordered and
directed to turn over and deliver to such commissioners or
receivers so appointed all books, papers, documents, and property
now in their possession or under their control.'
"The defendants demurred to the bill, and the demurrers were
overruled. They subsequently filed answers, which put the
plaintiffs upon proof of many essential allegations of their
bill, without proof of which, independently of the question of
law arising upon the face of the bill, no part of the relief
asked could have been granted. In the view which is taken of the
case by this court, it is unnecessary to extend this opinion by
setting forth the averments and denials of the several answers.
"Upon final hearing the Circuit Court dismissed the bill."
The bill is stated by counsel to be a bill to "enforce severally against the lands of certain defendants the lien of separate assessments for the construction of the levee, with the proceeds of which the levee was built, upon the grounds, 1st, that such assessments were levied in strict conformity with the terms of the statute of 1871, which was a valid law; and, 2d, that even if that statute was unconstitutional, many of the defendantsPage 483owning such lands are estopped to deny the constitutionality of said act and attack the assessments on that ground. It is not a bill to compel contributions to, or collect proportionate amounts of, a gross sum, but is a bill in the nature of a foreclosure bill to enforce, on the several and separate parcels of land, the liens of several and specific assessments upon the faith of which the moneys which built the levees were advanced."
It is insisted that it is not a bill to collect a tax, or a bill "to hold any municipal corporation or any individual liable, directly or indirectly, at law or in equity."
The bill purports to be an original bill in the nature of a supplemental bill, supplemental to the bill originally filed by Palms, either by way of enforcing the decretal order entered on that bill, treated as a final decree, or, treating that order as interlocutory merely, of obtaining a decree on the whole case as against new parties. Which view is taken is perhaps not material, for "where a party returns to a court of chancery to obtain its aid in executing a former decree, it is at the risk of opening up such decree as respects the relief to be granted on the new bill."Lawrence Manufacturing Companyv.Janesville Mills,138 U.S. 552,561. And, moreover, the bill is an original bill as to the land owners.
Palms filed that bill, on behalf of himself and others similarly situated, May 4, 1878, against Wheelock, Jones and Westlake, as commissioners appointed under the act of April 24, 1871, praying that the moneys "loaned and advanced" by complainant to those commissioners be ascertained, and a decree entered that complainant was entitled to a lien on the levee, and other works and lands, acquired by the commissioners, and the assessments for benefits to said lands, which had been made; and further that the commissioners be decreed to proceed at once to collect the assessments, or so much thereof from time to time as would be sufficient to pay the interest and principal payable to complainant as the same fell due, or that the court appoint a receiver or receivers with authority to collect said assessments.
The commissioners were not impleaded as representing the land owners in the litigation. Their duties were such as thePage 484act of 1871 defined, if that act were valid, and their powers were created and limited thereby, and did not include the power to bind all or any of the land owners of the district in such a suit. The suit was brought to compel the commissioners to discharge the duty, under the act, of enforcing the collection of assessments in the interest of the bondholders, as creditors, and in that sense, they occupied an adverse relation to the land owners who werequasidebtors.
The commissioners had filed in the county court of Pike County their assessment roll in 1872, and objections thereto by certain land owners having been decided adversely to them by the county court, and, on appeal, by the circuit court of the county, they took the case to the Supreme Court of the State, which decided that the act of 1871 was unconstitutional. This judgment was pronounced at January term 1876. It was after this that, interest being overdue on the bonds held by him, Mr. Palms filed his bill. Some other bondholders became parties complainant, and on March 13, 1879, an order was entered permitting complainants to bring the land owners into court and test the question of their liability, and the cause was referred to a master. July 7, 1880, the report of the master was confirmed and the court adjudged and decreed that there was due to Palms $221,228.66, and to various other complainants some thousands of dollars as specified, the whole aggregate sum found due complainants being $304,908.26, it being added: "The above amounts are found due without prejudice." It was further decreed that the sums of money found due were "a lien upon the assessments made under the order of the county court of Pike County, in the State of Illinois, upon the lands described in the bound book Exhibit A" as provided in the twenty-seventh and thirty-seventh sections of the act of April 24, 1871. The order proceeded that it appearing that the commissioners had no moneys in their hands for the payment of the amounts so found due, and that they had taken no steps for the collection of the assessments, it was further ordered by the court "that the complainants have the right and liberty to proceed in this court in the name of the said defendants as complainants and as such commissioners, or in their own names asPage 485complainants against the lands described in the said Exhibit A and the owners thereof, or such of such lands and the owners thereof, or other persons, and said commissioners as they may be advised are liable for or bound to pay the sums found to be due to the complainants as aforesaid, jointly or severally, by a bill or bills, original, supplemental or otherwise, as they may be advised, for the recovery of the amounts found due them as aforesaid and also for the costs of this suit." Both these orders show that the Circuit Judge was of opinion that to subject the lands to the assessments in that suit the land owners must be made parties; and even the amounts found due were in terms so found without prejudice to their rights.
No steps were subsequently taken, and Mr. Palms died November 24, 1886. His executors, on April 22, 1889, filed the present bill against some thousand land owners of the district as well as Wheelock and Jones, two of the alleged levee commissioners, Westlake in the meantime having deceased.
It was an original bill as to these new parties and they were entitled to all the defences which existed when it was filed, and were unaffected by the principle oflis pendens. The Supreme Court of Illinois had held in 1876 that the act of April 24, 1871, was in contravention of the constitution of the State and void. This decision was made after the bonds in question had been issued and purchased by Palms from the contractors, but the judgment was rendered on objections by the land owners to the confirmation of the assessments, the collection of which was relied on for the payment of the principal and interest of the bonds, so that it might well be held to be binding on the Federal courts. But we agree with the Circuit Court of Appeals that even if the Circuit Court was not obliged to accept that decision, yet that there was so little doubt of its correctness as to require the same conclusion. The rulings of the state Supreme Court were that the work of constructing a great levee along the bank of a river subject to overflow, and independent of a system of drainage, was not embraced within the act of 1871; that section 31 of article IV of the constitution of 1870, that "The General Assembly may pass laws permitting the owners or occupants of lands to construct drains and ditchesPage 486____ for agricultural and sanitary purposes across the lands of others," did not authorize the construction of a levee independent of drainage; that section 9 of article IX of that constitution was a limitation on the power of the Legislature, which could only vest such power in such municipalities and not in any other bodies, though other municipalities might be vested with jurisdiction to assess and collect taxes for corporate purposes subject to the rule of uniformity as to persons and property; and that the burden of taxation by special assessment could not be imposed on a locality without the consent of the taxpayers to be affected. And the court held, in respect of the act of 1871, "that neither the commissioners or the juries selected, nor the county court, is such a body as, under the constitution, may be given power to make local improvements by special assessments or by special taxation on contiguous property;" and also that "under this law, the people whose property is subject to taxation or assessments have never given any consent to it, if we exclude those who may have signed the petition addressed to the county court."
Section 5 of article IX of the state constitution of 1848 provided: "The corporate authorities of counties, townships, school districts, cities, towns, and villages may be vested with power to assess and collect taxes for corporate purposes; such taxes to be uniform in respect to persons and property within the jurisdiction of the body imposing the same."
Section 9 of article IX of the constitution of 1870 read: "The General Assembly may vest the corporate authorities of cities, towns, and villages with power to make local improvements by special assessment, or by special taxation of contiguous property or otherwise. For all other corporate purposes, all municipal corporations may be vested with authority to assess and collect taxes; but such taxes shall be uniform, in respect to persons and property, within the jurisdiction of the body imposing the same."
These provisions of the two constitutions are substantially identical, and while prior to the act of 1871, the clause of the constitution of 1870 had not been construed by the Supreme Court of the State, the similar provision in the constitution ofPage 4871848 had been construed in several instances. And it was ruled that the right of taxation could not be granted by the general assembly in any form to private persons, or to private corporations; that the provision limited the power of the general assembly to grant the right to assess and collect taxes to the corporate or local authorities of the municipalities or districts to be taxed; that a local burden of taxation or special assessment could not be imposed upon a locality without the consent of the taxpayers to be affected; and that corporate authorities were municipal officers directly elected by the people of the municipality or appointed in some mode to which they had given their assent.Harwardv.St. Clair and MonroeLevee Drainage Company,51 Ill. 130;Hesslerv.DrainageCommissioners,53 Ill. 105;Lovingstonv.Wider,53 Ill. 302;Widerv.City of East St. Louis,55 Ill. 133;Peoplev.Salomon,51 Ill. 37.
The construction of the state constitution inHarward'scase and others has been repeatedly recognized by this court as authoritatively established.
And as this was the settled law of the State when these bonds were issued, and the constitution of 1870 admitted of no other construction, we concur in the opinion that the act of 1871 was repugnant to the constitution of Illinois; the bonds due under it were void; and the lands intended to be benefited could not be specially assessed by any action taken in conformity with the provisions of that act.
The case ofBlakev.People,109 Ill. 504, conducts to no other result. That case arose under the act of May 29, 1879, which was passed after the amendment of the state constitution adopted in 1878. That amendment provided that the general assembly might pass laws permitting the owners of lands to construct drains, ditches and levees across the lands of others, and to organize drainage districts and vest the corporate authorities thereof with power to construct and maintain levees, drains and ditches, "and to keep in repair all drains, ditches and levees heretofore constructed under the laws of this State, by special assessment upon the property benefited thereby." The new levee district was organized under this act to repairPage 488the levee which had been built under the invalid law of 1871. The objection was raised by a land owner, on the application of the collector of the county for judgment against his land on an assessment, that the old levee had not been built under a law of the State within the meaning of the act and of the constitution, because the act of 1871 was no law. The court held that the point should have been raised before the confirmation of the assessment roll, and came too late. The court also held that it could not take judicial notice that the purpose for which the corporation was created was not to keep in repair levees theretofore constructed under a law of the State, but assuming the question to be properly before the court, that while the act of 1871 was unconstitutional as affecting those over whose lands the drains, levees, etc., were to be constructed without the owners' consent, and those against whose property it was proposed to assess the cost of constructing such drains and levees without their consent, yet that there might be some person so situated as to be precluded from raising the question of the validity of the law. And while, strictly speaking, there neither was nor could be any levee in Illinois constructed under a law of the State, yet that the legislature plainly meant to authorize the completion and repair of levees that had been constructed under an act purporting to be a law, though it was not. The court said: "There was no law in force authorizing the construction of levees over the lands of others (save the act of April 24, 1871) at the timeUpdikev.Wright, andWebsterv.Levee Commissioners, were decided. To obviate the effect of those decisions — allow the construction of levees, as well as drains, upon the lands of others — and to authorize the formation of municipal corporations for the purpose of constructing drains and levees, the amendment to section 31, article IV, was submitted to, and adopted by, the people, at the November election, in 1878. The act of May 29, 1879, but repeats, in this respect, the language of that amendment. The levees, therefore, which must have been referred to, because none other could reasonably have been intended, were the levees which had been constructed, but could not bePage 489kept in repair because of the decisions inUpdikev.Wright, andWebsterv.Levee Commissioners."
The act of April 24, 1871, being invalid, the corporate existence of the levee commissioners, and the assessments made at their instance, and the collection of the latter under that act, or under the act of April 9, 1872, entitled "An act to provide for the registration of drainage and levee bonds, and secure the payment of the same," failed with it. But it is contended that while all this may be so as to the general public, yet that appellees, or some of them, have so conducted themselves that they are estopped from asserting such invalidity, and that the Circuit Court should have enforced the assessments exactly as if the law had been a constitutional enactment. The bill sought to collect not only the assessments already made, but asked to have further assessments made to pay the bonds in full, and to maintain and preserve the security; and the court was also asked to declare that the assessments created valid liens upon the lands, and to decree that the bonds sued on were a lien on the assessments and to enforce their collection. In other words, that the court execute the act, either as in itself wholly valid or valid as to these defendants. We are unwilling to assent to the doctrine of legislation by estoppel. The courts cannot, by the execution of an unconstitutional law as a law, supply the want of power in the legislative department.
InSouth Ottawav.Perkins,94 U.S. 267, this court said: "There can be no estoppel in the way of ascertaining the existence of a law. That which purports to be a law of a State is a law, or it is not a law, according as the truth of the fact may be, and not according to the shifting circumstances of parties. It would be an intolerable state of things if a document purporting to be an act of the legislature could thus be a law in one case and for one party, and not a law in another case and for another party; a law to-day, and not a law to-morrow; a law in one place, and not a law in another in the same State. And whether it be a law, or not a law, is a judicial question, to be settled and determined by the courts and judges. The doctrine of estoppel is totally inadmissible in the case."
In that case the invalidity of the law grew out of the factPage 490that the journals of the Senate and House did not show the passage of the bill as the constitution required it to be shown. Bonds had been issued, bought innocently, and the town had paid one installment of interest, but it was held that the bonds could not be sustained on the doctrine of estoppel. In this case the bonds were signed, issued and sold by the commissioners, and the interest which was paid was paid by the commissioners. The land owners had no control of the question whether bonds should be issued, and were not in privity of contract with the purchasers of the bonds. As the act, the assessments, and the bonds were void, the land owners, when it was sought to subject their property to those assessments for the payment of the void bonds, could not be estopped on the ground that the law itself, though void, was valid as to them.
Even in the instance of contracts of a corporation beyond the scope of its corporate powers, the law is well settled in this court that nothing which has been done under them or the action of the courts can infuse any vitality into them.CentralTransportation Companyv.Pullman Company,139 U.S. 24.Danielsv.Tearney,102 U.S. 415, though not precisely in point, is illustrative of the distinction between enforcing an invalid law in an executory way, and awarding relief in respect of things accomplished under it. In that case, the secession convention of the State of Virginia had passed an ordinance providing that any person whose property had been taken on execution, might, by giving a bond for the payment of the judgment, have his goods released so long as the law should remain in force. Porter recovered a judgment against Daniels in the Circuit Court of Jefferson County, and Daniels availed himself of the ordinance by filing the required bond. To a suit brought on the bond by Tearneyet al., executors of Porter, after the close of the civil war, the defence was made that the law under which the bond was given was unconstitutional, and so that the bond was void. There was a difference of opinion in the court as to whether the bond was good as a voluntary bond or not, but it was held that conceding the bond to have been wholly void, the judgment upon it ought not to be reversed, on the principle that where a party has availed himself for his benefitPage 491of an unconstitutional law he is estopped as between himself and others not occupying that position from setting up its unconstitutionality as a defence. The obligee of the bond sued on had not availed himself of the void ordinance, but was deprived of his rights by it. He had not in any way, expressly or impliedly, made himself a party to the illegal proceeding, or affirmatively agreed to take any advantage from it, while the consideration of the bond had been fully received by the obligor, who could not, under such circumstances, be permitted to deny a liability put upon the obligeein invitum.
It follows that this bill cannot be maintained on the theory of the validity of the act of 1871, even though some other equity might have been asserted if in the exercise of reasonable diligence. The result is not inconsistent with the cases that hold that although a law is found to be unconstitutional, a party who has received the full benefit under it, may be compelled to pay for that benefit according to the terms of the law. This is upon the theory of an implied contract, the terms of which may be sought in the invalid law, and which arises when the full consideration has been received by the party against whom the contract is sought to be enforced.
In the case before us, the land owners did not and could not receive the benefits which it was contemplated would accrue to them from the proceedings if they had been valid. As the Circuit Court of Appeals pointed out what the land owners, who promoted the passage of and proceeded under the act of 1871, had in view "was not simply to have a levee constructed, but to have a sufficient levee, which could be repaired from time to time and permanently maintained under legal authority." The scheme embraced not only the construction but the maintenance of the levee and must be looked at in its entirety. "If it be said that the plaintiffs' testator would never have purchased the bonds except in the belief that the act of 1871 was valid, with equal truth it may be said the land owners would never have sought nor desired such legislation except in the belief that the levee would be maintained by the same authority that constructed it." When the law fell, the method of maintaining it by compulsory process also failed, and if it be said that therePage 492was only a partial failure of consideration, it is plain that the consideration was indivisible and not susceptible of apportionment, while the evidence demonstrates that the losses suffered by the land owners by reason of the breaking of the levee exceeded the amount of the bonds in question.
The grounds of estoppel claimed in this case seem to be, that one or more of the defendants secured the passage of the act of 1871; that others actively participated as petitioners and otherwise in the organization of the levee district before the bonds were issued; that others who took no part whatever in any of the proceedings, after the bonds were issued and the law was held to be unconstitutional, united in an attempt to maintain and repair the levee by voluntary contributions; that others, who neither said nor did anything, knowing that the proceedings were pending and that the levee was in course of construction, remained quiescent; that others paid interest on their assessments for the years 1873 and 1874; that others participated in the organization of the new and legal levee district after the constitution of Illinois had been amended and a law passed authorizing the formation of levee districts; and that others purchased lands after theWebstercase was decided, and their deeds contained certain references to the act of 1871.
We think that the evidence fails to show that Palms relied, or had the right to rely, on the acts, or assurances, or silence, of any of these different classes of land owners, and was thereby misled. He purchased the bonds, not of the land owners, or any of them, nor from the levee commissioners, but in the open market, and on the advice of counsel as to the legality of the proceedings. The land owners who participated in any way in the creation of the drainage district were as vitally interested in the matter as any purchaser of bonds could be, and they acted equally in the mistaken belief that the law was valid. "It is a novel idea," as the Supreme Court of Illinois remarked inHolcombv.Boynton,151 Ill. 300, "in the law of estoppel that the doctrine should be applied to a person who has been guilty of no fraud, simply because, under a misapprehension of the law, he has treated as legal and valid an act void and open to the inspection of all." But we need not pursue the discussion,Page 493for, in view of the invalidity of the proceedings, if complainants had a cause of action, that cause of action arose before May 4, 1878, when Palms filed his bill, yet the land owners were not proceeded against until the 22d of April, 1889.
The statute of limitations of Illinois provided that actions on unwritten contracts, express or implied, and all civil actions not otherwise provided for, should be commenced within five years next after the cause of action accrued. Courts of equity usually consider themselves bound by the statutes of limitation which govern courts of law in like cases. In the second aspect of their bill appellants did not rely on their bonds as legal instruments, but they sought the aid of a court of equity for the enforcement of a lien in payment of the bonds by reason of an estoppelinpais, and the cause of action so created would seem to have been barred by that statute. But courts of equity go farther in the promotion of justice, and where laches exist, deny the relief sought, even though the statutory period may not have run under the applicable statute.
The doctrine of courts of equity to withhold relief from those who have delayed the assertion of their claims for an unreasonable length of time is thoroughly settled. Its application depends on the circumstances of the particular case. It is not a mere matter of lapse of time, but of change of situation during neglectful repose, rendering it inequitable to afford relief.
Palms purchased these bonds of the contractors to whom they had been delivered by the commissioners, who assumed a right to issue and make that disposition of them by virtue of the power to borrow money granted by the act of 1871. The enterprise of erecting such a barrier to the incursions of the river was, in its nature, hazardous, and the levee required not only the utmost skill in construction, but the utmost effort and vigilance in its repair and maintenance. The transaction was in its nature speculative as the value of the reclaimed lands depended on the permanency of the structure.
The enforcement of the assessments for benefits on which the payment of the cost of the work depended was resisted from the first by certain land owners, who had opposed the scheme as attempted to be authorized, and their legality was broughtPage 494to the test as soon as in the orderly progress of judicial proceedings it could be done. The result was that in 1876 the act of 1871 was held void and the assessments illegal. In that same year the levee broke and the lands were devastated. In 1877 some of the land owners raised some thousands of dollars, giving trust deeds as security, for the repair of the levee, the money to be devoted to that purpose exclusively, and repairs were made.
May 4, 1878, Mr. Palms filed his bill, to which the land owners were not made parties. The principal of the first and largest assessment was payable one tenth annually beginning with 1882, but the interest, at the rate of ten per cent per annum from October 1, 1872, was collectible annually, and the interest on the bonds was also payable yearly. The instalments of interest for 1875, 1876 and 1877 had not been paid, and those succeeding remained unpaid.
In 1880 the Circuit Court entered the order permitting Palms to bring in the land owners by filing a supplemental or an original bill; and in that same year there were numerous breaks in the levee.
During the same year a new drainage district was organized under the provisions of the act of 1879, which had been passed in accordance with the constitutional amendment of 1878. Large assessments were levied upon the lands, aggregating hundreds of thousands of dollars, and the money was put into the property. In 1881 the levee broke again, but the new drainage corporation went on with its work. The levee broke again in 1888, and additional assessments were levied.
Palms did not avail himself of the order, in the original cause, of July 7, 1880. He took no further steps, and died November 24, 1886. His executors filed this bill April 22, 1889. The record affords no explanation of the delay, and it seems to us that this was such laches as forbid relief. To enforce these bonds against those by whose courage, energy and expenditure the lands have attained whatever value they now possess, would in our judgment be too inequitable to be permitted.
Mr. Palms knew of the decisions of the Supreme Court of Illinois in theWebsterandUpdikecases; of the breaks in thePage 495levee; of the efforts of the land owners to rebuild and maintain it by large expenditures of money; and he could not lie by until after such expenditures, and with the condition of the district and the personnel of its people constantly changing, and then insist that during all this time the parties were under a liability to him which, in equity, they were estopped to deny.
So far as part of the old levee became part of the new levee, the new drainage corporation used it because they could not do otherwise, and besides Palms, as a purchaser of bonds in the open market, was a stranger to the work. Even if the contractors could have claimed an equitable lien on the structure itself, Palms could not, and, indeed, any resort to subrogation is disclaimed by appellants' counsel. Such a claim could not have been successfully maintained under our decision inAEtna InsuranceCo. v.Middleport;124 U.S. 534. There the town of Middleport had issued certain bonds to aid in the construction of a railroad; the road was constructed and the bonds delivered to the railroad company in payment of the work, and were afterwards sold to the complainant. The Supreme Court of the State of Illinois held the bonds void, and a bill was filed in the Circuit Court of the United States to enforce their collection on the theory of subrogation to the right of the railroad company to enforce the contract evidenced by a vote of the town appropriating the amount involved to pay for the railroad, and the acceptance and fulfillment of the contract by the railroad company. But it was decided that complainant having bought the bonds as negotiable securities from the railroad company, could not be substituted to any rights which it might have had against the defendants; that no right of subrogation existed; that subrogation was applicable only in cases where a junior incumbrancer was forced to pay off a superior lien for the protection of his rights, or in some similar case; and that a mere volunteer was not entitled to claim the right.
It is worthy of remark that the decree of the Circuit Court in that case was placed on the ground that the right of action of the railroad company, resting only in parol, was barred by the statute applicable to contracts not in writing. Blodgett, J., 31 F. 874.Page 496
Here no bonds were ever sold by the commissioners to Palms or any one representing him. They were delivered to the contractors and were taken in payment at ninety cents on the dollar of their face value. If the acts of any of the land owners created any equities against them it was in favor of the contractors, and these equities could not be asserted by Mr. Palms, unless by subrogation, which could not be availed of. And if it could be held that the money of Mr. Palms did enter into the construction of the levee, yet it was inextricably intermingled with that furnished by private individuals, by the new levee and drainage district, by three railroad companies, and by the United States government, the total aggregating half a million dollars, from 1877 to 1893.
InLitchfieldv.Ballou,114 U.S. 190, it was held that a creditor who had loaned to a municipal corporation, in excess of the amount of the indebtedness authorized by the constitution, money which had been used in part for the construction of public works, was not entitled to a decree in equity for the return of his money, because the municipality had parted with the specific money and it could not be identified; that a bill in equity praying for the return of specific and identical moneys borrowed by a municipal corporation from complainant in violation of law would not support a general decree that there was due from the municipality to him a sum named, which was equal to the amount borrowed; and further, that a constitutional provision forbidding the municipality from borrowing money operated equally to prevent moneys loaned to it in violation of this provision and used in the construction of a public work, from becoming a lien upon the works constructed with it.
And if in this case any ground of relief on the theory of implied contract ever existed, the want of diligence presented an insuperable bar to its assertion.Decree affirmed.
MR. JUSTICE BROWN did not hear the argument and took no part in the decision of this case.Page 497