People ex rel. Burow v. Block

114 N.E. 527, 276 Ill. 286

Opinion

Mr. Justice Dunn

delivered the opinion of the court:

The commissioners of highways of the towns of Dan-ville and Georgetown, in the county of Vermilion, filed in the circuit court of that county a. petition for mandamus against the drainage commissioners of the Sinking Hole Drainage District. The petition alleged that the drainage commissioners had, among other improvements in their district, constructed an open ditch across a public highway known as Kelly lane, on the town line between the towns of Danville and Georgetown, and had not provided any bridge or crossing over the ditch but had left an open space across the highway thirty feet wide and twelve feet deep, and had injured and impaired the public use of the highway and made it impassable; that to restore the highway to its former condition for use for public travel would require the erection of a bridge thirty-six feet long and twenty feet wide, at a cost of about $2000, and that the drainage commissioners had refused to restore the highway under the claim that no such duty rested upon them. The prayer of the petition was for a writ of mandamus commanding the drainage commissioners to restore the highway to a condition which would make it fit for public use as a highway, safe to accommodate public travel and as good as before the commissioners had entered upon the highway. The defendants filed pleas, alleging, substantially, that the open ditch extending across the highway, before it was entered upon by the defendants, was a natural water-course having an outlet in a stream called Grape creek; that the ditch constructed carried the water naturally falling upon lands above the outlet from the south to the north into Grape creek in its natural slope; that to accomplish the purpose for which the district was organized it became necessary to deepen and widen the open ditch south of the highway and to cross the highway; that the ditch was cut across the highway along the line of a natural depression for the purpose of carrying the surface waters naturally draining through such depression; that no unnecessary damage was done to the highway by the construction of the work other than by leaving the opening for a bridge; that the construction of a bridge across the channel would be of no benefit to the drainage district; that the highway is capable of use the same as before whenever the highway commissioners shall construct a bridge over the ditch, and that under the law the drainage commissioners are not authorized to expend the funds of the district for the purpose of constructing the bridge. Replications put in issue the allegation that the ditch was constructed on the line of a natural watercourse. It was stipulated that the Sinking Hole Drainage District was organized under the Levee act on June 2, 1913, and that Kelly lane is, and has been for more than fifty years, a public highway on the line between the towns of Danville and Georgetown; that the ditch in question is the main drainage ditch of the district and that the towns of Danville and Georgetown were both assessed for benefits by reason of its construction. The cause was heard without a jury by the court, which made a finding of fact that the ditch was constructed across the highway in the line of a natural depression, channel or water-course, and that the highway is a public township road. The court held as a proposition of law that under the Levee act, where a ditch, as a part of a combined system of drainage located by the report of the drainage commissioners and confirmed by the court, is constructed on the line of any natural depression, channel or water-course across a public township road, the corporate authorities of such road are required, at their own expense, to construct any bridge or other work of such road. The issues were found for the defendants and a judgment was rendered denying the writ and dismissing the petition at the petitioners’ costs, to reverse which a writ of error has been sued out.

There was evidence to sustain the court’s finding that, the ditch was constructed across the road in a natural depression, channel or water-course. In such case section 55 of the Levee act requires the corporate authorities of the road to construct the bridge at their own expense. The plaintiffs in error insist that this requirement is in conflict with sections 9 and 10 of article 9 of the constitution, which provide that municipal corporations may be vested with authority to assess and collect taxes for corporate purposes, and that the General Assembly shall not impose taxes upon municipal corporations, or the inhabitants or property thereof, for corporate purposes. These sections prohibit the legislature from compelling a town to incur a debt without its consent and from granting the right of corporate taxation to any other than the corporate authorities, who are the municipal officers directly elected by the people to be taxed or appointed in some mode to which the people to be taxed have given their assent. These propositions are stated in Morgan v. Schusselle, 228 Ill. 106, and many cases are cited to sustain them. In that case the court had under consideration section 40^2 of the Farm Drainage act, which empowers drainage commissioners to construct bridges or culverts which may be deemed necessary for the use or protection of the work of the district, in public highways of the town, to be paid out of the road and bridge tax, and this requirement was held to violate sections 9 and 10 of article 9 of the constitution.. In that case it was assumed that there was a distinction between it and the case of Heffner v. Cass and Morgan Counties, 193 Ill. 439. In the latter case the court had under consideration the third proviso of section 55 of the Levee act, which is the statute relied on here, and the proviso was held not to be a violation of sections 9 and 10 of article 9 of the constitution. The fact that in the earlier case the drainage district wás organized under the Levee act and in the later case under the Farm Drainage act is of no importance, for like provisions in the two acts must be governed by the same rule. Neither does the fact' that in the earlier case the ditch over which the bridge was constructed was a natural water-course and in the later case was artificial constitute any valid distinction, though it appears to have been so regarded. The destruction of a part of the highway, requiring its repair, the cost of which can be met only by taxation of the town, is not different in character whether the place of such destruction is at a natural water-course or not. Such destruction necessarily imposes a burden on the town and cannot be authorized by the legislature at the cost of the town against its will. While the destruction of the road is not the levying of a tax, the law which attempts to authorize it imposes an obligation on the town against its will, which the constitution prohibits. The legislature has imposed the care of roads and the construction, maintenance and repair of bridges upon the various towns throughout the State,, and •the municipal officers, through whom the townships act, are the highway commissioners elected in each town. They possess the only authority conferred by law for levying a tax or incurring a liability for road and bridge purposes. No debt can be imposed upon the town by any authority for such purposes against its will, and no tax can be imposed for such purposes except by the proper corporate authorities,—the highway commissioners. The drainage district here is composed of parts of the towns of Danville and Georgetown. Its territory is not conterminous with either or both of those towns. The drainage commissioners are elected not only in a different territory, but for a different purpose and by a different body of electors from the highway commissioners. They are in no sense corporate authorities of either town and under the constitution have no authority to impose a debt upon either town. While the drainage commissioners are not authorized by section 55 to construct the bridges in public highways at the cost of the town, that section purports to authorize them to remove such bridges if in their judgment they find it necessary, and thus indirectly impose upon the township the cost of their replacement. The legislature is without power to do this.

The decision in the case of Heffner v. Cass and Morgan Counties, supra, holding that the legislature had the power to authorize drainage commissioners to remove bridges on public highways without payment of damages to the public road authorities, is inconsistent with that of Morgan v. Schusselle, supra, and was, in effect, overruled by the latter case. It is now expressly overruled.

It is argued that the benefits which the Levee act authorizes to be assessed do not include the construction or repair of any bridge or other work in any road. This, however, is because of the proviso of section 55 which we have just held to be unconstitutional. The preceding sections authorize the levy of assessments to an amount equal to the estimated total cost of the improvement, which will include the cost of any bridge which the district may be required to build in any road in constructing the improvement. The restoration of the road by the drainage commissioners to a condition fit for public travel may be compelled without a statute expressly authorizing it. The right of the owner of a dominant heritage by ditches and drains to collect the sur- • face water falling on his estate and discharge it into a natural water channel, even if the quantity of water cast upon a servient estate is thereby increased, is'not involved. The existence of such right does not give the land owner the right to enter upon and cut through a highway without incurring any liability and impose upon the town the obligation to repair it.

The judgment of the circuit court is reversed and the cause is remanded, with instructions to grant the peremptory writ.

Reversed and remanded, with directions.