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Drainage & Levee Dist. v. Alton Box Co.

OPINION FILED SEPTEMBER 28, 1962.

WOOD RIVER DRAINAGE AND LEVEE DISTRICT, APPELLEE,

v.

ALTON BOX BOARD COMPANY ET AL., APPELLANTS.



APPEAL from the County Court of Madison County; the Hon. MICHAEL KINNEY, Judge, presiding.

MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:

This is an appeal from certain orders entered by the county court of Madison County in assessment proceedings of the Wood River Drainage and Levee District. It comes directly to this court under the provisions of section 12-16 of the 1955 Illinois Drainage Code. (Ill. Rev. Stat. 1961, chap. 42, par. 12-16.) The orders appealed from were entered on November 28, 1960. They are: (1) an order striking objections to the commissioners' annual report for the period September 30, 1958, to September 30, 1959, and approving the report, and (2) an order approving payment of attorney's fees to Harold G. Talley, who had served as attorney for the District. The objections to both orders involve the compensation of Talley for legal services rendered to the District.

The appellants are sometimes referred to as "corporate objectors," as distinguished from certain individual property owners who filed objections in the trial court but did not appeal. They contend (1) that they were denied due process of law; (2) that because Talley received a monthly salary as attorney for the District, he could not receive further compensation for services rendered in connection with the leving of an additional assessment; (3) that the payments made to Talley were improper because they were not paid out of the proceeds of the additional assessment; and (4) that the order approving payment of attorney's fees erroneously approved compensation for a longer period than had been requested.

The original 1951 project of the District contemplated the construction, in cooperation with the United States, of a levee system designed to furnish flood protection comparable to a 47-foot stage on the St. Louis, Missouri, gage. For this purpose an original assessment of $1,744,741.45 was levied, together with annual maintenance assessments of $22,759.97. Shortly before January 1, 1957, the corps of engineers of the United States Army, after a study of earlier floods, determined that the levee system of the District should furnish flood protection comparable to a 52-foot stage on the St. Louis gage and requested the District to give its formal assurance that it would participate in the 52-foot stage project. It also appeared that the annual maintenance assessments, as originally fixed, were too low and that they should be increased, and on August 1, 1957, the court confirmed an increased annual assessment roll in the amount of $86,470. The original project of the District had not been completed, and it appeared that the estimated cost of completion of the initial 47-foot project was $244,000. The cost of completing the initial project, together with the cost of the work involved in connection with the 52-foot project, were the principal items that necessitated the additional assessment which was confirmed in the sum of $804,003.25.

Harold G. Talley had been employed in June of 1955 as attorney for the District at a salary of $400 a month. He performed all of the legal services in connection with the levy of an increased "annual maintenance assessment" and an "additional assessment" (Ill. Rev. Stat. 1957, chap. 42, par. 5-1) to provide for the completion and expansion of the work begun in 1951. The issues in this case concern his compensation for these services.

On April 4, 1957, the county court of Madison County ordered the District to levy an additional assessment of $600,000 and further ordered the commissioners to file an amended petition for the additional assessment as soon as the estimated costs for the complete project should be more definitely ascertained. The amended petition was filed March 5, 1959. Judgment confirming an additional assessment of $804,003.25 was entered on June 3, 1960. No appeal was taken from that judgment. Meanwhile, the financial report of the commissioners for September 30, 1958, to September 30, 1959, had been filed on November 25, 1959. It showed payments to Talley in excess of the sum of $400 per month. A petition for payment of partial attorney fees to Talley, which was filed on January 18, 1960, asked for an order directing payment of an additional $40,587.50.

This appeal is from orders entered on November 28, 1960, approving the annual report and approving payment of $30,000, in settlement of all amounts due to Talley for legal services until the termination of his employment on August 31, 1960.

The appellants' first contention is that they were denied a fair hearing, and deprived of due process of law, with respect to both the attorney's fee petition and the annual report. This contention makes it necessary to state in some detail the events that preceded the entry of the orders appealed from. The petition requesting the entry of an order approving the amount of partial attorney's fees, and directing their payment, was filed by the commissioners on January 18, 1960. By May 16, 1960, objections to the petition had been filed by the corporate objectors and by the individual-landowner objectors. Hearings were held on May 23, 24, 25, and 26, June 13 and 20, and July 11 and 13, 1960, and ample opportunity was given to all parties to introduce evidence and argue legal matters.

At the July 13 hearing, the individual objectors rested their case and the corporate objectors were asked whether they had anything to present. They had nothing, and the court announced that the case was taken under advisement. After a five-minute recess, the court continued the hearing, "subject to a further setting." The corporate objectors indicated that they might request leave to file amended objections. The judge stated that they could ask leave to file amended objections, but he explicitly refused at that time to grant them leave to amend. At a hearing on July 29, the judge stated that if amendments to the objections were filed, "I will examine them and determine whether or not I will approve them for filing." The result of these proceedings was that the case was taken under advisement subject to being reopened if the corporate objectors sought and were granted leave to amend their objections.

On August 22, 1960, the appellants did submit motions asking leave to amend their objections. The main thrust of their original objections had been that the assessment roll had been based upon a determination that approximately $53,500 would be required for legal services, and they sought to have any allowance of attorney's fees that should be made so limited as to conform to that determination. The amended objections adopted, for the corporate objectors, the substance of objections that had been filed by the individual objectors on May 13. The language was more detailed, but the substance was the same, — that Talley was entitled to no fees whatsoever in excess of his retainer of $400 per month.

Lengthy hearings had already been had upon this objection, and under the circumstances the judge would have been justified if he had, on August 22, formally refused to grant leave to amend the objections and entered judgment on the basis of the hearings already held. The appellants were not prejudiced by the fact that his refusal to grant leave was instead embodied by implication in his final order, entered on November 28, 1960.

It does not appear that appellants ever requested a hearing on their motion to amend their objections, or that they ever suggested that they had new evidence to offer, although three months elapsed between the filing of their motions seeking leave to amend and the entry of the final order. There was in fact already much evidence relating to their objections, and they do not appear to have been handicapped by any lack of evidence in the record in making their contentions on this appeal. They were not denied a fair hearing.

The appellants' objections to the commissioners' annual report were filed on February 29, 1960. On March 16, the commissioners moved to strike these objections, and supported the motion with a memorandum of authority. On April 25, the court reserved its ruling on the motion to strike and stated that leave would be granted to argue it orally, if requested. Appellants filed their answering brief on August 22, 1960. There was no further hearing on the matter before the court ruled on the motion in its order of November 28, 1960. At no time did the appellants ever request oral argument, although seven months elapsed between the filing of the motion to strike their objection and the court's ruling on that motion, and three months between the filing of the appellants' brief and the ruling. They were heard on the merits of the motion to strike in their written brief, and they were not deprived of a fair hearing or of due process of law.

The next contention of the appellants is that because Talley was employed by the District as an attorney, and paid $400 per month, he could under no circumstances become legally entitled to any other compensation for legal services. The record shows that in July of 1952 the commissioners of the District adopted a resolution reciting that a named attorney "was employed by the Commissioners beginning August 1st at a salary of $400 per month for his services." The minutes of the District show that on June 1, 1955, "Harold G. Talley was appointed attorney for the Wood River ...


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