Melville Fuller

“ 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 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. ”

“ 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 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. ”

“ 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 ”

“ 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 benefit of an unconstitutional law he is estopped as between himself and others not occupying that position from setting up its unconstitutionality as a defense. ”

“ 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 $200, to be recovered before a justice of the peace in the proper county ”

“ 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 estoppel in pais, 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. ”

“ 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. ”

“ In 1880 the circuit court entered the order permitting Palms to bring in the landowners 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 thousand 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. ”

“ 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 forbids 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 the Webster and Updike Cases; of the breaks in the levee; of the efforts of the landowners to rebuild and maintain it by large expenditures of money ”

“ 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 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. ”

“ 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. ”

“ Bonds had been issued, bought innocently, and the town had paid one instalment 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 landowners had no control of the question whether bonds should be issued, and were not in privity of contract with the purchasers of the bonds. ”

“ 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 ”

“ 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 landowners. The supreme court of Illinois said: 'The principal questions raised and discussed in this case are the same as in Updike v. ”

“ 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 Destricts.' 1 Starr. & C. Anno. Stat. (Ill.) p. ”