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Hulbert v. City of Chicago, 213 Ill. 452, 72 in making the improvement. The informaN. E. 1097, Connecticut Mutual Life Ins. Co. tion required by the statute was not before v. City of Chicago, 217 Ill. 352, 75 N. E. 365, the property owners in any form at the puband other cases, that an engineer's estimate lic hearing, and the court erred in overrulof cost is sufficiently specific if it gives prop- ing the objections. erty owners a general idea of the cost of the In making out a prima facie case it was several items of the improvement. It is not alleged by the appellee that the original asthe province of an engineer to determine the sessment roll was lost, and the court permitnature, character, or kind of improvement;ted to be filed an alleged copy, together with but if the resolution fails to furnish such in an affidavit of the superintendent of special formation, and the estimate of the engineer assessments that the paper was a correct supplies the omission and is adopted by the copy of the original roll, and this was obboard of local improvements and made a partjected to. The estimate of the engineer was of the resolution, the end contemplated by dated March 11, 1916, which was the date the statute is accomplished.

of the passage of the ordinance, and which (6,7] The resolution and estimate are to be showed that there could not have been a read together, and, as was said in Ziegler public hearing on that estimate. To meet the v. City of Chicago, 213 Ill. 61, 72 N. E. 719, objection the city was permitted to introduce by the report of the engineer the property a resolution of the board of local improve. owner is advised of the total estimated cost ments dated February 25, 1916, an estimate of the improvement, and by the resolution dated February 23, 1916, and proceedings and the estimate he is advised of the nature tixing March 10, 1916, as the date for a puband character of the improvement and the lic hearing. It is contended that the court kind of materials which will enter into it, erred in permitting the copy to be filed withwith the cost of each item. Having this out proper proof, and also erred in allowing before him, he may consent to the improve evidence of the resolution with the estimate ment, object to its suitability or that the and order for the hearing; but these quescost is too great and will exceed the benefits tions will not arise in the future, and the resulting, or may propose modifications or objections will not be considered. changes. Unless the kind and character of

The judgment is reversed, and the cause the improvement, with the material to be is remanded. used, are shown by the resolution, the engi Reversed and remanded. neer's estimate must show the same. In any event, it must be so specific as to give the

(276 Ill. 424) property owner a general idea of the cost of

YEADON v. CLARK et al. (No. 11054.) the different elements of the improvement.

Dec. 21, 1916. Doran v. City of Murphysboro, 225 11. 514, (Supreme Court of Illinois.

Rehearing Denied Feb. 9, 1917.) 80 N. E. 323. In this case the resolution of the board gave no description whatever of 1. MUNICIPAL CORPORATIONS Om57–POWERS

OF-STATUTE. the improvement or of its different parts or

What powers may be properly exercised by of the materials to be used. The resolution a municipal corporation is for the General Aswas as follows:

sembly, and powers not authorized by legisla“That a cast-iron water supply pipe, with all tive grant cannot be exercised. necessary special castings, and with fire hy

[Ed. Note.- For other cases, see Municipal drants, valves and brick valve-basins, be con- Corporations, Cent. Dig. 88 144, 148; Dec. Dig. structed and laid in a system of streets, as fol- www57.) lows: The east side of Stony Island avenue 2. STATUTES 181(1)-CONSTRUCTION, from East Eighty-Sixth street to East Eighty The purpose of construing a statute is to Seventh street; both sides of East Eighty-Sev- ascertain the legislative intent, and when it is enth street from Stony Island avenue to Mc- ascertained to give it effect, if not in violation Farlane avenue;

the east side of McFarlane of the Constitution. avenue from East Eighty-Sixth street to East

[Ed. Note. For other cases, see Statutes, Eighty-Seventh street, and each of the streets, Cent. Dig. 8 259; Dec. Dig. Om 181(1).] to wit, East Eighty-Sixth street and East Eighty-Sixth place from Stony Island avenue 3. STATUTES 181(1) CONSTRUCTION to McFarlane avenue, the estimate of the cost

INTENT OF LEGISLATURE. of said improvement as made by the engineer

Where a statute is susceptible of more than of the board being $12,506."

one construction, the court will adopt such con[8] This was followed by the estimate of struction as will effect the legislative intent.

[Ed. Note.-For other cases, see Statutes, cost made by the engineer, in which he stat. Cent. Dig. 8 259; Dec. Dig. Ow181(1).] ed the cost of different parts of the improve- 4. DRAINS 18-SANITARY DISTRICT—Powment, but neither the resolution nor estimate contained any sufficient description of those The sanitary district of Chicago was created parts of the improvement to which objection by Act July 1, 1889, (Laws 1889, p. 129) secwas made. Under the resolution and esti- tion 7 of which provides that the board of trus

tees shall have power to provide for the drain. mate, taken together, any kind of four-age of the district by laying out, establishing, inch double-nozzle valves, with any kind of constructing, and maintaining channels, drains, six-inch connecting pipes, or any kind of gate ditches, and outlets for carrying off and disposralve of the size mentioned, or any size or of any water power which may be incidentally

ing of drainage, and also to control and dispose depth of brick valve-basins, might be supplied I created in the construction and use of such


For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

channels or outlets. Act July 1, 1903 (Laws, that unless they could lease the power to the 1903, p. 116) 8 5, declares that the sanitary sanitary district there was no hope of securdistrict of Chicago shall be authorized to construct all such dams, water wheels, and other ing any greater sum than the bid of Andrew works north of the upper basin of Illinois & J. Cooke of $3 per horse power per annum, Michigan Canal as may be necessary or appro- yielding but a small sum of money. The priate to develop and render available the pow' answer of the sanitary district admitted the er arising from the water passing through its main channel and any auxiliary channel now or facts alleged in the bill and its intention to thereafter constructed. Held, that the sani- install water wheels and other works, at a tary district had no authority to lease water cost of approximately $600,000, to develop the power from the canal commissioners obtained at the upper basin of the canal; such power not water power for the purpose of generating being incidentally created by the works of the electricity. It denied that the sole purpose district, though in part resulting from the in- of acquiring the lease was to engage in the creased' flow of water due to the operations of business of generating and selling electrical the district.

[Ed. Note.-For other cases, see Drains, Cent. power, and averred that the power was necDig. 88 11, 13; Dec. Dig. Om 18.]

essary for the proper operation of the plant

of the district, to fully develop the power Appeal from Superior Court, Cook County; incidentally created by the operation of the William F. Cooper, Judge. Bill by John W. Yeadon against Wallace ready maintained a plant whereby electricity

main channel. It alleged that the district al. G. Clark and others. From a decree dismiss was furnished for 25,000 street lights in Chiing the bill, complainant appeals. Reversed cago, 1,000 street lights in other municipaliand remanded, with directions.

ties, and lights for 3,800 acres of public Earl J. Smith and Colin C. H. Fyffe, both parks in Chicago, besides electrical power of Chicago, for appellant. Edmund D. Ad. for various industries, and that by leasing cock, of Chicago (Leo Spitz, of Chicago, of the power at dam No. 1 it would be enabled counsel), for appellees.

to supply Chicago and other municipalities

with street lights at cost and to furnish powCARTWRIGHT, J. The canal commis- er for commercial purposes. The chancellor sioners in charge of the Illinois & Michigan heard the evidence and entered a decree disCanal leased the water power created by dam missing the bill, and, the state of Illinois be No. 1 in Joliet for a term of 20 years from ing interested in the subject-matter of the July 17, 1856. The lease was renewed twice suit, an appeal to this court was allowed and for like periods, and after September 1, 1890, perfected. was owned by the Economy Light & Power The Illinois & Michigan Canal was conCompany of Chicago. On June 17, 1916, the structed from the West fork of the South commissioners advertised for bids for the branch of the Chicago river at Chicago to a water power for a period of 20 years from connection with the Illinois river at Utica. July 17, 1916, when the lease of the Economy The canal entered the channel of the DesLight & Power Company would end. There plaines river near the northern limits of the were only two bids, and they were opened on city of Joliet and followed the channel of the July 17, 1916–one being by Andrew J. Cooke, river through the city. At Bridge street, of $3 per horse power per annum, and the about half a mile south of the point where other by the Sanitary District of Chicago, of the canal joined the river, the dam in ques$15.01 per horse power per annum. The bid tion was erected, and formed what was called of the sanitary district was accepted, and the the upper basin of the canal, along which an canal commissioners and district were about embankment extending a considerable disto execute a lease, and the district to furnish tance upstream was built and maintained as a bond in the sum of $300,000 for the per- a part of the canal. The sanitary district formance of the terms of the lease, when the constructed its drainage channel from Chi. appellant, John W. Yeadon, a citizen, voter, cago to a junction with the Desplaines river and taxpayer of the city of Chicago, filed his and the canal, near the north end of the upbill in this case in the superior court of Cook per basin, so that there was a contiuence of county, alleging a want of authority in the the waters of the canal, river, and drainage sanitary district to execute the lease and ex- channel. The sanitary district passed an orpend money in the installment of water dinance adopting as the right of way for its wheels, electrical apparatus, and other works, channel the same route through the city of and praying for an injunction to prevent the Joliet to Brandon road, south of the city, apdistrict from doing so. The canal commis- propriated property therefor, excavated its sioners filed what was called a petition and channel, and improved that part of the river answer, alleging that the maximum rental and canal south of the north end of the upper received for the power until 1900 was $1,200 basin, in order to accommodate the increased per annum; that on account of the increased flow of water. There was a controversy beflow of water from the sanitary district they tween the canal commissioners and the saniwere receiving $10,457 per annum; that by tary district, and the canal commissioners accepting the bid of the sanitary district they brought a suit in the circuit court of Will would receive $105,000 per annum, or about county against the district, which terminated

decree found that the canal embraced sub- , 257 Ill. 587, 101 N. E. 196, Ann. Cas. 1914A, stantially the bed and banks of the Des- 1151. That is the rule applicable to this plaines river constituting the upper basin ter- case. minated by dam No. 1, which had been con [4] The sanitary district was created by structed by the canal authorities; that the an act in force July 1, 1889. Laws. 1889, p. sanitary, district had no power or authority 126. Section 7 of the act provides that the to injure or destroy water power rights ex- board of trustees shall have power to proisting at the time it was created; and that vide for the drainage of the district by laythe discharge of water from the drainage ing out, establishing, constructing, and mainchannel had increased the flow from 40,000 taining channels, drains, ditches, and outcubic feet per minute to at least 300,000 cu- lets for carrying off and disposing of drainbic feet per minute, and thereby increased age, “and also to control and dispose of any the power at the dam. The sanitary district water power which may be incidentally crewas granted the right to use and occupy cer-ated in the construction and use of said chantain tracts of land and to enter the upper nels or outlets." The district, therefore, has basin with its channel, and it was required authority to dispose of water power incito rebuild the ancient structures at the dam, dentally created by the construction of its and improve the works and pay the canal drainage channel, and may sell such power commissioners $20,000 for its easement. Be- for commercial or municipal purposes. But fore the drainage channel was made there the power at dam No. 1 was not incidentally was comparatively little water either in the created by the works of the district. The canal or river, and in times of drouth scarce- proposal to take a lease of the power from ly any. The upper basin was filled up with the canal commissioners and pay rental of sludge, so that it was insufficient to carry $15.01 per horse power annually was an acthe water discharged by the drainage dis- knowledgment of the title of the canal comtrict, and the district dredged a channel of missioners to the power leased which the the necessary capacity.

lessee could not dispute. The increased flow [1] The only question to be determined is of water from the channel of the district by whether the General Assembly has conferred turning the water into the upper basin half power upon the sanitary district to lease the a mile above increased the water power at water power created by dam No. 1, and en- the dam, which was a benefit to the canal gage, as a part of its business, in generating commissioners; but it was not power of the and disposing of electrical power. It was

district incidentally created by the construcproved that the exercise of the power would tion of its channel, and did not differ from be beneficial to the city of Chicago and other increased power at any point below, in the municipalities, in enabling them to secure Desplaines river or elsewhere. In 1903 the electrical power at cost, and would also powers of the sanitary district were enlargbenefit various industries; but that fact ed by an act in force July 1, 1903. Laws could not operate to confer authority upon

1903, p. 113. Section 5 of that act is as the district. The question what powers may

follows: properly be exercised by a municipal cor

"That the said sanitary district of Chicago is poration, and what public benefit would jus- water wheels and other works north of the upper

hereby authorized to construct all such dams, tify the conferring of power, is for the Gen- basin of the Illinois & Michigan Canal as may eral Assembly, and not for the courts, and be necessary or appropriate to develop and renthe powers of such corporations are derived der available the power arising from the water from legislative grants. The authority mustiary channels now, or hereafter, constructed by

passing through its main channel and any auxilbe found in some act of the General Assem- said district." bly, or it does not exist. City of Chicago v. The authority given by that act was by M. & M. Hotel Co., 248 Ill. 264, 93 N. E. its terms limited to the channel north of the 753; City of Marengo v. Rowland, 263 Ill. upper basin of the Illinois & Michigan Canal, 531, 105 N. E. 285, Ann. Cas. 1915C, 198; and shows the legislative understanding that People v. Village of Oak Park, 268 Ill. 256, the basin is the property of the Illinois & 109 N. E. 11.

Michigan Canal, although the sanitary dis[2, 3] Counsel differ as to whether the con- trict has rights in it recognized by the canal struction of the constitutional provision commissioners and provided for in the conshould be strict or liberal, but the rule de- sent decree. clared by this court is that the purpose of We have recited the only statutory proconstruing a statute is to ascertain the leg- visions relied upon as giving authority to enislative intent, and when the intent is ascer- ter into the lease, and neither of them is optained to give it effect, if not in violation of erative to confer such power. Whether it the constitution, and when a statute is sus- ought to be conferred is for the General Asceptible of more than one construction, the sembly. court will give such construction as will ef The decree is reversed, and the cause is fect the legislative purpose, rather than one remanded, with directions to grant the rethat will defeat it. People v. Hinrichsen, lief prayed for. 161 Ill. 223, 43 N. E. 373; People v. Price, Reversed and remanded, with directions.

114 N.E.-65


(276 Ill. 483)

in consideration of the fact that the district ADOLPH et al. v. COMMISSIONERS OF had adopted that plan and would coustruct DRAINAGE DIST. NO. 2 et al.

a tile outlet as recommended by the engineer, (No. 11014.)

conveyed to the district the right to enter (Supreme Court of Illinois. Dec. 21, 1916. Re- upon, construct, maintain, use, and repair hearing Denied Feb. 9, 1917.)

such main tile drain through their lands, 1. DRAINS 50 DISCRETION OF COMMIS

which deeds were accepted by the commisSIONERS CHANGE TO OPEN DITCH FROM sioners, and the main tile drain constructed TILE DRAIN.

through appellants' lands. Laying the tile In view of Farm Drainage Act, 88 17, 41

was completed in November, 1909. Its con(Hurd's Rev. St. 1915–16, c. 42, 88 91, 116), contidiug discretion to the commissioner's of a dis- struction, maintenance, and repair cost the trict, in planning and carrying out the draining district $11,526.28, of which amount the apof the district, to determine the system of drain- pellant Scully paid $1,403.10, Adolph $1,age, the commissioners of a drainage district or- 117.22 Leavitt $1,117.73, and Burke $356.22, ganized under the act are not precluded, in the absence of showing of fraud or oppression,

from while the amounts paid by Schmidt and exercising their discretion to change the main Spinker are not stated. outlet thereof from a tile drain to an open ditch, by the fact that landowners in the dis with the exception of a slight mistake in

The bill alleges that the tile was well laid; trict have conveyed to the district without expense to it the rigbt of way for the tile drain grade made by the contractor at one point, and it has been constructed; for, while the re which can be remedied at a cost of $200 ; lease of the right of way for the tile outlet would that it was adequate to drain the lands of not authorize taking or damaging lands for an open ditch outlet, the additional rights neces- the district promptly and efficiently in all sary for open ditch construction may be secur ordinary floods, and in most of the extraordi. ed by release or condemnation.

nary seasons, and worked well and efficiently [Ed. Note.-For other cases, see Drains, Cent. for five years. The bill alleges that the sea. Dig. 88 3, 62; Dec. Dig. Om50.) 2. MANDAMUS 90-DRAINAGE COMMISSION- the heavy rains flooded and filled the water

son of 1915 was extraordinarily wet, and The performance of the duty of drainage courses and outlets in creeks and rivers, so commissioners to provide an outlet of ample that some lands owned by Patrick Ryan, capacity for the waters of the district may be one of the commissioners, and by A. J. Mccompelled by mandamus.

[Ed. Note.--For other cases, see Mandamus, Gough, in the upper portion of the disCent. Dig. 88 195, 196, 204, 223; Dec. Dig. Omtrict, the owners claimed, were overflowed 90.)

for a short period of time. Upon their comAppeal from Circuit Court, Logan County: plaint the commissioners procured a compeT. M. Harris, Judge.

tent engineer to examine the system of drainSuit by Philip Adolph and others against age and determine whether an additional tile the Commissioners of Drainage District No. would carry the flood waters off, if there 2 and others. From decree for defendants, those of 1915. The engineer, after an ex

should be a recurrence of heavy rains like complainants appeal. Affirmed.

amination, reported, recommending the corBeach & Trapp, of Lincoln, for appellants. rection of the defect in the grade of the King & Miller, of Lincoln, for appellees. main tile, which he said could be made at

slight expense, and that by constructing FARMER, J. Appellants, six landowners an additional tile, with additional basins in drainage district No. 2 in Prairie township, to catch the overflow, the waters of the disLogan county, filed a bill against the com-trict would be properly carried off in all missioners of the district, praying that said floods. The commissioners levied a tax $500, commissioners be enjoined from removing or of which appellants paid their pro rata interfering with a 24-inch tile forming the share, for the purpose of repairing the demain outlet for the district, and from con- fects in the grade of the tile; but it had not structing an open ditch through and across been expended for that purpose. At a meetthe lands of appellants for the main outlet. ing of the commissioners on January 22,

The bill alleges the district was organized 1916, they adopted a resolution for the conunder the Farm Drainage Act in 1908, and struction of an additional tile and for the included 1,620 acres of land, of which the repair of the defect in grade. In April, 1916, appellants owned 880 acres. Pursuant to the Ryan was elected a commissioner, and he recommendation of the engineer employed by and Herbert, another commissioner, adopted the commissioners to prepare plats, plans, a resolution to take up the 24-inch main and profiles for the drainage of the lands of outlet tile, and in its stead construct an the district, the commissioners regularly open ditch through the lands of appellants adopted the recommendations of the engineer for the main outlet. and decided upon a 24-inch tile, with catch The bill alleges said commissioners threatbasins for the main outlet, and applied to en to enter upon appellants' lands, take up appellants for the right of way through their and destroy the main tile drain, and excavate said lands without expense to the district. a large open ditch, and that they will do so Appellants, being desirous that the outlet unless enjoined. The bill further alleges an should be a tile through their lands, and open ditch through appellants' lands will

cause irreparable damage; that it will over-, the election of Ryan, in April, 1916, decided flow the surrounding land; that the banks upon and proposed to adopt that plan. There will wash and fall in; that débris will ac- is no question of the correctness of appelcumulate, and cause the ditch to become lants' contention that the commissioners, at crooked, and weeds and marsh grass to grow the time the district was organized, had full in and along said ditch, and prevent farming power and authority to adopt, as a part of the lands across the line of the ditch, there the system of drainage, a tile drain outlet, by causing much additional labor; that it and to procure from the landowners the will be a constant source of expense to the right of way to lay and maintain such tile district, and will decrease the market value drain outlet. The contention, however, that of appellants' lands; that the destruction of when the right of way is secured by release the tile drain will destroy work that cost or conveyance from the landowners, and the the district over $11,000, resulting in damage tile laid, it must be perpetually maintained to appellants which would be irreparable. as a tile drain outlet, and can never be The bill further alleges that, because of changed to an open ditch without the cona large hill of loose sand in the route of the sent of the landowners, we think is untenproposed open ditch, it would be impractica able. Section 17 of the Farm Drainage Act ble to construct an open drain that would provides that the commissioners shall go carry the waters of the district in an effi- upon the land and determine upon a system cient manner, and that to destroy the main of drainage "which shall provide main outtile drain and construct an open ditch would lets of ample capacity for the waters of the be a gross injustice and a fraud upon the district, having in view the future contin. rights of appellants. The bill also alleges gencies, as well as the present.” Preference that Patrick Ryan, one of the commissioners, is to be given tile drains when they will is moved by a personal dislike and ill will accomplish the purpose, and open drains toward some of the appellants.

when deemed necessary. Section 41 requires The bill was filed June 13, 1916, to the Sep- the commissioners, after the completion of tember term, 1916, of the circuit court. The the work, to keep it in repair, and if they May term was still in session when the bill find, by reason of error in locating the ditchwas filed, and a motion was made in openes, or any of them, “or from any other causcourt for a temporary injunction. The courtes the lands of the district are not drained or set the motion for hearing June 22d. No protected as contemplated, or some of them answer, plea, or demurrer was filed by ap- receive partial or no benefit, they shall use pellees, and the motion was heard on the the corporate funds of the district to carry bill only. The temporary writ was denied, out the original purpose to the end that all and an order entered at the same time dis- the lands, so far as practicable, shall receive missing the bill for want of equity. Appel- their proper and equal benefits as contemlants have brought the record here by ap- plated when the lands were classified.” peal.

The commissioners were authorized to emAppellants' position is that the drainage ploy a competent engineer to assist them in commissioners had the right and authority laying out the work, and they have a reato contract with the land owners to construct sonable discretionary power in adopting the a tile drain; that after they had adopted plan and system of drainage. Preference is that system and constructed the same, which required by the Farm Drainage Act to be was ample to carry off the water under ordi. given tile drains where they will accomplish nary floods and most of the extraordinary the purpose, but the commissioners are not floods, and could at a moderate expense be bound to adopt them, if in the exercise of a made sufficient for extraordinary floods, they reasonable discretion they deem that system could not change the system to an open ditch, inadequate. In Langan v. Drainage District, involving many thousands of dollars damages 239 Ill. 430, 88 N. E. 182, this court quoted to the landowners; also that the change from Peotone Drainage District V. Adams, would operate as a gross injustice and fraud | 163 Ill. 428, 45 N. E. 266, where it was held, upon the rights of appellants, and that upon in substance, that where the landowners of that ground equity would enjoin the change. a district have been assessed and taxed for It is insisted that the deeds by appellants the construction of drains and ditches suffi. to the commissioners for the right of way cient to drain their lands they have a right were made in consideration that there was to to require the commissioners to do what the be constructed and maintained a tile drain statute says they shall do, determine upon outlet, which was a covenant and contract and adopt a system of drainage which will binding on the district when the deeds were provide main outlets of ample capacity for accepted, and could not be changed without waters of the district, and "If a system or the consent of api llants.

plan of drainage is ad ted which will not (1) The bill concedes that in time of floods afford outlets of sufficient capacity to drain such as occurred in 1915 the outlet tile is the lands of the district, the landowner will inadequate, but it alleges that an additional derive no benefit whatever from the taxation tile could be laid at a reasonable expense imposed upon him. This was never contemwhich would furnish adequate outlet in flood plated by the Legislature." It was held the times, and that the commissioners, prior to statute required ample outlet to drain the

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