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In Re Union Drainage District

OPINION FILED JUNE 22, 1976.

IN RE UNION DRAINAGE DISTRICT NUMBER ONE OF THE TOWNS OF AFTON AND CLINTON, DE KALB COUNTY. — (UNION DRAINAGE DISTRICT NUMBER ONE OF THE TOWNS OF AFTON AND CLINTON, DE KALB COUNTY, APPELLEE,

v.

ROBERT PURDY ET AL., APPELLANTS.)



APPEAL from the Circuit Court of De Kalb County; the Hon. CARL A. SWANSON, Judge, presiding.

MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:

Eight landowners (Mr. and Mrs. Harold Halfpenny, Dr. and Mrs. Robert Purdy, Mr. and Mrs. Archie Tuntland and Mr. and Mrs. Kurt Liebhaber) have appealed from an order of annexation entered March 22, 1974, by the circuit court of De Kalb County, and from an earlier order denying their motion to dismiss the petition of Union Drainage District Number One of the Towns of Afton and Clinton, De Kalb County, Illinois (District) to annex land outside the district. Each couple owns an agricultural parcel in the lands covered by the District's petition for annexation.

The appellants argue first that the trial court did not have jurisdiction to enter the order of annexation because the petition for annexation of this land to the District was not brought by "lawful commissioners of the District."

We should note at this point that we are allowing motions by the appellants and the District to amend or supplement the record on appeal; the "short record" already being part of the record on appeal, the District's motion to consider it such is denied.

The District was organized on November 9, 1904, after consideration of a written report of a competent engineer covering the agricultural lands composing the District, with maps, profiles and estimates of costs and benefits to accrue from the "constructing, repairing and maintaining a tile drain and also an open ditch within said District" so as to establish "a combined system of drainage and protection from wash or overflow." Appellants' lands lying outside the District which are involved in this appeal were not included in the District when it was established. On February 16, 1905, drainage commissioners for the District were elected. Since that time no records were kept, the elected commissioners are deceased, the District became inactive and remained so until August 17, 1972. On that date, based on a report and petition to transfer jurisdiction of the District, an order was entered by the trial court transferring jurisdiction over the District to the circuit court of De Kalb County, pursuant to section 1-6 of the Illinois Drainage Code (Ill. Rev. Stat. 1971, ch. 42, par. 1-6). *fn1

Shortly thereafter, on August 29, 1972, a petition was filed requesting a change in the selection of drainage commissioners from election to appointment as provided in section 4-6 of the Illinois Drainage Code (Ill. Rev. Stat. 1971, ch. 42, par. 4-6). The petition bore nine signatures including that of the president of De Kalb Ag Research Inc. (De Kalb Ag) and another acting under a power of attorney. The parties who signed were described in the said petition as "owners of a majority of the land" within the District. On September 15, 1972, an order was entered granting the relief requested. That order made findings that "proper notice was given * * * to all interested parties"; that the District is comprised of about 1400 acres of land owned by 15 individuals and one corporation, that the signatories requesting the change were landowners owning about 1185 acres of land within the District, and that those petitioners represent 63% of the landowners owning about 84% of the land within the District.

Pursuant to that order the De Kalb County Board of Supervisors, on October 18, 1972, appointed three landowners (including one representative of a landowner, namely De Kalb Ag) as drainage commissioners for the District. On September 26, 1973, these commissioners filed their petition on behalf of the District to annex certain lands outside the District owned by the appellants and by De Kalb Ag and by one of the commissioners and his wife (Mr. and Mrs. Donald Bend).

Section 4-6 of the Drainage Code, which sets forth the statutory procedure for change from election to appointment of drainage commissioners and for hearing thereon, provides in pertinent part as follows:

"If at such hearing, the court determines that the petition is signed by at least 10 per cent of such owners but is not signed by a majority of such owners then the court shall order the question of whether the commissioners of the district shall be appointed in the manner provided or elected by the adult landowners of the district submitted to the adult landowners at the next annual election in the district and shall direct the clerk of the district to prepare separate ballots on that question for use in that election. The ballots shall be canvassed by the judges of the election and the ballots and the results of the election returned to the clerk at the same time and in the same manner as is provided in Section 4-5 with reference to the election of commissioners.

If at the hearing on the petition the court determines that the petition is signed by a majority of the adult owners of land in the district then no referendum on the question shall be necessary and the court shall thereupon order that thenceforth the annual elections of the district shall be dispensed with and thereafter the commissioners shall be appointed in the manner provided by this Act."

Appellants argue that the trial court lacked jurisdiction to enter the order of September 15, 1972, changing the method of selection from election to appointment (pursuant to which order the commissioners were appointed) because the petition for such change, having contained an allegation that it was signed by the owners of a majority of the land within the District is insufficient to support a change in the method of selection without a referendum. We do not so construe the relevant provision in the Drainage Code. What it does require is that the trial court make a determination at the hearing on the petition for such change as to the proportion of the adult owners of land in the District who signed such petition and if the court determines thereat that a majority of adult landowners have signed, no referendum shall be necessary, elections are dispensed with, and appointment of commissioners shall proceed as provided in the Act. The trial court made the requisite determination that the petition was signed by a majority of the adult landowners.

Appellants further argue that it is obvious from a comparison of that petition which bears nine signatures of landowners, and the list of 16 landowners in the District attached as Exhibit A to the petition filed to reactivate in the District, *fn2 that a majority of the adult landowners in the District did not sign the petition, especially in light of the fact that where title to land is held jointly (by husband and wife or other joint owners) each joint owner must be counted to determine the proportion. The record here does not disclose how the court made a determination that a majority of the landowners of the District signed the petition for change in the method of selection or how the computation of percentages was made.

• 1 In Mamer v. Morrison, 35 Ill.2d 133, 137, the court, after pointing out that the court's jurisdiction in drainage matters was derived solely from the Illinois Drainage Code, said:

"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 ...


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