delivered the opinion of the court:
The commissioners being land owners in the district whose lands were subject to assessment were not competent to spread the assessment in the first instance. (Commissioners of Drainage District v. Smith, 233 Ill. 417.) Being so incompetent it necessarily follows that they were incompetent to sit as a commission to determine the questions of fact arising upon the objections. Their interest which made them incompetent to spread the assessment had not been lessened. Objectors will not be compelled by us to submit their property rights to a tribunal so manifestly prejudiced and unfair. Such a course would do violence to the spirit and genius of our institutions.
Upon proper objection the court should have entered an order refusing confirmation of the assessment for the reason that it was made by commissioners who were incompetent. As no such objection was made, however, the court, upon the objection which was made, should not have submitted the questions of fact to the men who were then the commissioners of the district.
Great reliance is placed by defendant in error upon language found in Trigger v. Drainage District, 193 Ill. 230, as follows, to-wit: “It is clear from the several sections of the act under which this proceeding was had, that the county court may, in the first instance, order the assessment of benefits to be made either by a jury or by the commissioners, and that whichever body is ordered to make the assessment must hear and determine objections filed to such assessment. (McCaleb v. Coon Run Drainage District, 190 Ill. 549.) The county court had no power to grant the motion of counsel for the objector to empanel a special jury to hear the issues formed on the objections.!’
The futility of relying merely upon the words used in an opinion without regard to the facts which the court then had under consideration is here well illustrated. In the Trigger case no question as to the disqualification of the commissioners by reason of their interest, arising from the fact that they were owners of lands within the district and subject to assessment, was presented. It was there contended that the provision of the statute authorizing the commissioners to act in spreading the assessment and hearing objections thereto deprived the objectors of their constitutional right to a trial by jury. That contention had no merit. It was in reference to that question that the quoted language was used. If these commissioners in the case at bar had not owned land in the district they would have been competent to spread the assessment, and if objections thereto had been filed and objectors had sought a trial by jury the language above quoted would then have been applicable.
Some complaint is made here by objectors because the case was tried in the county court before a judge who prior to his election as county judge had been attorney for the commissioners and had advised and assisted in securing the organization of the district. There is nothing before us for consideration in this regard, as the question was not raised in the county court.
On May 20, 1907, the Governor approved an act of the General Assembly, passed with an emergency clause, amending the provisions of the Levee act relative to the assessment of benefits by the commissioners and relative to the assessment of benefits by a jury. (Laws of 1907, p. 274.) The judgment of the county court will be reversed and the cause remanded. When the case is re-docketed in the county court, if the condition of the record is such that the court might lawfully, under the provisions of the Levee act as so amended, empanel such a jury as is contemplated by that act, to assess the benefits, had they not already been assessed, then the court is directed to empanel such a jury, to hear objections 2, 3, 4 and 5. If the record is not in such condition, these objections cannot be tried until other commissioners for the district, competent to hear them, shall have been appointed, when they may be heard by such newly appointed commissioners.
Reversed and remanded, with directions.