APPEAL from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Jersey County;
the Hon. SAMUEL O. SMITH, Judge, presiding.
MR. JUSTICE HOUSE DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 21, 1966.
We allowed a petition for leave to appeal a Fourth District Appellate Court judgment affirming issuance by the circuit court of Jersey County of a permanent injunction against collection of certain drainage district annual maintenance assessments authorized by the county court of that county.
In 1906 the Nutwood Drainage and Levee District was organized. In 1907, pursuant to statute, judgment was entered on a jury verdict fixing the amounts which might thereafter be levied annually against the lands within the district for maintenance purposes. Plaintiffs are the owners of substantial acreage therein, and the annual benefits to their land were determined by the 1907 proceedings to be $347.59, which plaintiffs have always been willing to pay.
A brief summary of drainage district practices, as statutorily provided, may be helpful to an understanding of the instant problem. We are concerned with amounts levied for annual maintenance benefits. Such amounts were, during the periods involved here, initially determined in county court proceedings instituted by commissioners of the district and heard by juries, in which judgment was entered upon verdicts determining the amounts which might thereafter be collected annually from individually described tracts of land throughout the district for the purpose of paying the year-to-year costs of maintaining the drainage system within the district. (Nutwood Drainage and Levee Dist. v. Mamer, 10 Ill.2d 101.) Until increased by appropriate court and jury action, the amount so determined was the maximum collectible from a given tract during any given year. (Drainage Comrs. of Hammond Mutual Drainage Dist. v. Ponder, 20 Ill.2d 351, 356.) Since yearly maintenance costs varied, the commissioners were required to file annual reports with the county court stating the amount (within the maximum originally authorized) needed for the ensuing year. (Mamer.) Approval of such reports resulted in charges against the district lands of the percentage of the permissible maximum necessary to produce the needed funds.
Apparently, commencing prior to 1946, the commissioners of this district, without further jury action, sought to collect from the district lands for annual maintenance benefits amounts substantially exceeding those authorized by the 1907 proceedings. Plaintiffs paid these increased amounts for all years prior to 1950, but thereafter refused to pay the excess above $347.59, and in 1953 the district commissioners instituted receivership proceedings seeking appointment of a receiver for plaintiffs' lands and application of the income therefrom to payment of the assessments. During the pendency of the receivership proceedings, the commissioners also instituted proceedings in the county court to increase the amounts assessable for future annual maintenance costs; in 1955 a judgment increasing these amounts was entered in that proceeding, and an appeal was perfected to this court by plaintiffs and their predecessors. In 1956 the receivership proceedings were dismissed and the commissioners appealed. Both appeals were consolidated and decided in Nutwood Drainage and Levee Dist. v. Mamer, 10 Ill.2d 101, and the trial courts were affirmed in both cases. This court there held no valid annual maintenance assessments existed against the plaintiffs' land for the 1950-1955 period other than those authorized in 1907.
Apparently land owners other than plaintiffs had voluntarily paid the increased assessments during the disputed years. In 1958 the commissioners filed in the county court their "Petition to Cure Defects and for the Levying of an Assessment Against Certain Lands * * *", seeking authority for assessment of annual maintenance benefits against plaintiff's lands in a total amount approximating $20,000 (the same amount originally sought to be collected) for the years 1950 through 1955. Motions to dismiss these proceedings were denied, and judgment confirming the increased assessments was entered December 28, 1961. Plaintiffs appealed. This appeal was dismissed for failure to file a timely record, and leave to appeal within one year was likewise denied.
Thereafter plaintiffs began the present injunction proceedings seeking to prevent collection, for the years 1950-1955, of any annual maintenance assessments in excess of $347.59 authorized in the 1907 proceedings. The trial court held the 1961 county court order void and enjoined collection of the increased amounts; the appellate court affirmed, and it is the propriety of that action which is now before us for determination.
Plaintiffs contend that county courts were of limited jurisdiction, having only such authority in drainage matters as is conferred by the relevant statutes; that no statutory authorization exists for retroactive increases in annual maintenance assessments and that the county court's 1961 judgment is therefore void and vulnerable to this collateral attack; that section 5-22 of the Illinois Drainage Code, (Ill. Rev. Stat. 1961, chap. 42, par. 5-22,) relied upon by commissioners, was enacted solely to correct technical mistakes and omissions and was never legislatively intended to authorize retroactive increases in valid, existing assessments.
The position of the commissioners is that section 5-22 authorizes a new assessment whenever an assessment has been held not to have been legally made or has been declared invalid as to one or more tracts for any reason not affecting the merits of the assessment; that the increase in annual maintenance assessments was held invalid by this court in Mamer, and therefore they were entitled to proceed under 5-22 to reassess these lands for the 1950-1955 period. In the commissioners view the county court's order was within the scope of 5-22 and, whether rightly or wrongly entered, is immune from the collateral attack involved in this case. The commissioners stress the benefits received by the land of plaintiffs and the inequitable aspects inherent in permitting plaintiffs to avoid payment of assessments commensurate with the benefits conferred.
It is clear that the jurisdiction of county courts in drainage matters was derived solely from the Illinois Drainage Code, (Ill. Rev. Stat. 1961, chap. 42, pars. 1-1 et seq.) In such special statutory matters ordinary presumptions as to jurisdiction did not obtain, and exercise by the court of the statutorily conferred power, including its finding of jurisdiction, could be collaterally re-examined to determine whether the judgment transcended the power so conferred. (Mamer; Thayer v. Village of Downers Grove, 369 Ill. 334, 339; People ex rel. Lange v. Old Portage Park Dist. 356 Ill. 340, 343-4-5; Ashlock v. Ashlock, 360 Ill. 115, 121.) We must, then, determine whether the statute granted to the county court power to enter its order of December 28, 1961, and, if so, whether the statutory conditions precedent to an exercise of that power were present in the context of this case.
Resolution of this question requires reference to section 5-22 of the Drainage Code upon which the 1958 petition of the commissioners was predicated. It provides:
"When it appears to the commissioners that by reason of omission, mistake, irregularity or improper or insufficient notice or for any other reason not affecting the merits of the assessment, land or other property in the district subject to an assessment has been omitted from an assessment roll, or an assessment has been annulled or held not legally made or is invalid as to one or more tracts of land or other property situated in the district, then the commissioners may petition the court praying that the defects be cured and that an assessment be levied against such lands. The petition shall describe the land or other property sought to be assessed, state the amount of the benefits, if any, assessed against such land or other property, and recite the omission, mistake, irregularity or defect which annulled or invalidated the assessment. * * *"
This section is a codification of pre-existing provisions found in sections 60, 61 and 61a of the former drainage law. (Ill. Rev. Stat. 1963, chap. 42, pars. 59, 60, 60a.) It is patently a corrective and remedial provision containing designedly broad and well-nigh all-inclusive phraseology. Its purpose is, we believe, to enable drainage commissioners to recover from benefitted lands their proportionate share of construction, repair or maintenance costs in those instances where the initial attempt to assess such costs was ineffective for any reason not affecting the merits of the assessment; to authorize the commissioners to proceed with reassessment action in such cases where prior assessments have been held invalid, and to make such new assessments for the same years for which the invalidated action was intended. That the "merits of the assessment" were not affected here it seems to us is apparent both from the Mamer opinion and the later confirmation by jury verdict and court order of new assessments in the same amounts for the same years. To construe this section as only prospective in its operation would ignore its plain intent. Unless the remedial action which it contemplates may be retroactive, the section serves no useful purpose, for new assessment proceedings, operative as to future years, would always be available to the commissioners when earlier assessments are held invalid. In our opinion, section 5-22 is somewhat analogous to ...