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 several items of the improvement. It is not the province of an engineer to determine the nature, character, or kind of improvement; but if the resolution fails to furnish such information, and the estimate of the engineer supplies the omission and is adopted by the board of local improvements and made a part of the resolution, the end contemplated by the statute is accomplished. In making out a prima facie case it was alleged by the appellee that the original assessment roll was lost, and the court permitted to be filed an alleged copy, together with an affidavit of the superintendent of special assessments that the paper was a correct copy of the original roll, and this was objected to. The estimate of the engineer was dated March 11, 1916, which was the date 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 improveowner 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 fixing 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 improvement, with the material to be is remanded. used, are shown by the resolution, the engineer's estimate must show the same. In any event, it must be so specific as to give the property owner a general idea of the cost of the different elements of the improvement. Doran v. City of Murphysboro, 225 Ill. 514. 80 N. E. 323. In this case the resolution of the board gave no description whatever of the improvement or of its different parts or of the materials to be used. The resolution was as follows: The judgment is reversed, and the cause (276 Ill. 424) YEADON v. CLARK et al. (No. 11054.) 1. OF-STATUTE. What powers may be properly exercised by a municipal corporation is for the General Assembly, and powers not authorized by legislative grant cannot be exercised. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 144, 148; Dec. Dig. 2. STATUTES 181(1)-CONSTRUCTION. The purpose of construing a statute is to ascertain the legislative intent, and when it is ascertained to give it effect, if not in violation of the Constitution. "That a cast-iron water supply pipe, with all necessary special castings, and with fire hydrants, valves and brick valve-basins, be constructed and laid in a system of streets, as fol-57.] lows: The east side of Stony Island avenue from East Eighty-Sixth street to East EightySeventh street; both sides of East Eighty-Seventh street from Stony Island avenue to McFarlane avenue; the east side of McFarlane avenue from East Eighty-Sixth street to East Eighty-Seventh street, and each of the streets, to wit, East Eighty-Sixth street and East Eighty-Sixth place from Stony Island avenue to McFarlane avenue, the estimate of the cost of said improvement as made by the engineer of the board being $12,506." [8] This was followed by the estimate of cost made by the engineer, in which he stated the cost of different parts of the improvement, but neither the resolution nor estimate contained any sufficient description of those parts of the improvement to which objection was made. Under the resolution and estimate, taken together, any kind of fourinch double-nozzle valves, with any kind of six-inch connecting pipes, or any kind of gate valve of the size mentioned, or any size or depth of brick valve-basins, might be supplied [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 259; Dec. Dig. 181(1).] CONSTRUCTION 3. STATUTES 181(1) INTENT OF LEGISLATURE. Where a statute is susceptible of more than one construction, the court will adopt such construction as will effect the legislative intent. [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 259; Dec. Dig. 181(1).] 4. DRAINS 18-SANITARY DISTRICT-POW ERS OF. The sanitary district of Chicago was created by Act July 1, 1889 (Laws 1889, p. 129) section 7 of which provides that the board of trustees shall have power to provide for the drainage of the district by laying out, establishing, constructing, and maintaining channels, drains, ditches, and outlets for carrying off and disposing of drainage, and also to control and dispose of any water power which may be incidentally 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) § 5, declares that the sanitary sanitary district there was no hope of securdistrict of Chicago shall be authorized to con struct 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 thereafter constructed. Held, that the sanitary district had no authority to lease water power from the canal commissioners obtained at the upper basin of the canal; such power not being incidentally created by the works of the district, though in part resulting from the increased flow of water due to the operations of the district. [Ed. Note.-For other cases, see Drains, Cent. Dig. 88 11, 13; Dec. Dig. 18.] Appeal from Superior Court, Cook County; William F. Cooper, Judge. facts alleged in the bill and its intention to install water wheels and other works, at a cost of approximately $600,000, to develop the water power for the purpose of generating electricity. It denied that the sole purpose of acquiring the lease was to engage in the business of generating and selling electrical power, and averred that the power was necessary for the proper operation of the plant of the district, to fully develop the power incidentally created by the operation of the main channel. It alleged that the district already maintained a plant whereby electricity Bill by John W. Yeadon against Wallace G. Clark and others. From a decree dismiss-was furnished for 25,000 street lights in Chiing the bill, complainant appeals. Reversed and remanded, with directions. Earl J. Smith and Colin C. H. Fyffe, both of Chicago, for appellant. Edmund D. Adcock, of Chicago (Leo Spitz, of Chicago, of counsel), for appellees. cago, 1,000 street lights in other municipalities, and lights for 3,800 acres of public parks in Chicago, besides electrical power for various industries, and that by leasing the power at dam No. 1 it would be enabled to supply Chicago and other municipalities with street lights at cost and to furnish pow heard the evidence and entered a decree dismissing the bill, and, the state of Illinois be ing interested in the subject-matter of the suit, an appeal to this court was allowed and perfected. The Illinois & Michigan Canal was constructed from the West fork of the South branch of the Chicago river at Chicago to a connection with the Illinois river at Utica. The canal entered the channel of the Desplaines river near the northern limits of the city of Joliet and followed the channel of the river through the city. At Bridge street, about half a mile south of the point where the canal joined the river, the dam in question was erected, and formed what was called the upper basin of the canal, along which an embankment extending a considerable distance upstream was built and maintained as a part of the canal. The sanitary district constructed its drainage channel from Chicago to a junction with the Desplaines river and the canal, near the north end of the upper basin, so that there was a confluence of the waters of the canal, river, and drainage channel. The sanitary district passed an ordinance adopting as the right of way for its channel the same route through the city of Joliet to Brandon road, south of the city, ap CARTWRIGHT, J. The canal commis-er for commercial purposes. The chancellor sioners in charge of the Illinois & Michigan Canal leased the water power created by dam No. 1 in Joliet for a term of 20 years from July 17, 1856. The lease was renewed twice for like periods, and after September 1, 1890, was owned by the Economy Light & Power Company of Chicago. On June 17, 1916, the commissioners advertised for bids for the water power for a period of 20 years from July 17, 1916, when the lease of the Economy Light & Power Company would end. There were only two bids, and they were opened on July 17, 1916-one being by Andrew J. Cooke, of $3 per horse power per annum, and the other by the Sanitary District of Chicago, of $15.01 per horse power per annum. The bid of the sanitary district was accepted, and the canal commissioners and district were about to execute a lease, and the district to furnish a bond in the sum of $300,000 for the performance of the terms of the lease, when the appellant, John W. Yeadon, a citizen, voter, and taxpayer of the city of Chicago, filed his bill in this case in the superior court of Cook county, alleging a want of authority in the sanitary district to execute the lease and expend money in the installment of water wheels, electrical apparatus, and other works, and praying for an injunction to prevent the district from doing so. The canal commis-propriated property therefor, excavated its sioners filed what was called a petition and answer, alleging that the maximum rental received for the power until 1900 was $1,200 per annum; that on account of the increased flow of water from the sanitary district they were receiving $10,457 per annum; that by accepting the bid of the sanitary district they would receive $105,000 per annum, or about channel, and improved that part of the river and canal south of the north end of the upper basin, in order to accommodate the increased flow of water. There was a controversy between the canal commissioners and the sanitary district, and the canal commissioners brought a suit in the circuit court of Will county against the district, which terminated case. 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- 1154. That is the rule applicable to this plaines river constituting the upper basin terminated 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. 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. The Laws Section 5 of that act is as 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 facted by an act in force July 1, 1903. could not operate to confer authority upon 1903, p. 113. follows: the district. The question what powers may properly be exercised by a municipal corporation, and what public benefit would justify the conferring of power, is for the General Assembly, and not for the courts, and the powers of such corporations are derived from legislative grants. The authority must be found in some act of the General Assembly, or it does not exist. City of Chicago v. M. & M. Hotel Co., 248 Ill. 264, 93 N. E. 753; City of Marengo v. Rowland, 263 Ill. 531, 105 N. E. 285, Ann. Cas. 1915C, 198; People v. Village of Oak Park, 268 Ill. 256, 109 N. E. 11. [2, 3] Counsel differ as to whether the construction of the constitutional provision should be strict or liberal, but the rule declared by this court is that the purpose of construing a statute is to ascertain the legislative intent, and when the intent is ascertained to give it effect, if not in violation of the constitution, and when a statute is susceptible of more than one construction, the court will give such construction as will effect the legislative purpose, rather than one that will defeat it. People v. Hinrichsen, 161 Ill. 223, 43 N. E. 973; People v. Price, 114 N.E.-65 "That the said sanitary district of Chicago is hereby authorized to construct all such dams, water wheels and other works north of the upper basin of the Illinois & Michigan Canal as may be necessary or appropriate to develop and render available the power arising from the water passing through its main channel and any auxiliary channels now, or hereafter, constructed by said district." The authority given by that act was by its terms limited to the channel north of the upper basin of the Illinois & Michigan Canal, and shows the legislative understanding that the basin is the property of the Illinois & Michigan Canal, although the sanitary district has rights in it recognized by the canal commissioners and provided for in the consent decree. We have recited the only statutory provisions relied upon as giving authority to enter into the lease, and neither of them is operative to confer such power. Whether it ought to be conferred is for the General Assembly. The decree is reversed, and the cause is remanded, with directions to grant the relief prayed for. Reversed and remanded, with directions. In view of Farm Drainage Act, §§ 17, 41 (Hurd's Rev. St. 1915-16, c. 42, §§ 91, 116), confiding discretion to the commissioners of a district, in planning and carrying out the draining of the district, to determine the system of drainage, the commissioners of a drainage district organized under the act are not precluded, in the absence of showing of fraud or oppression, from exercising their discretion to change the main outlet thereof from a tile drain to an open ditch, by the fact that landowners in the district have conveyed to the district without expense to it the right of way for the tile drain and it has been constructed; for, while the release of the right of way for the tile outlet would not authorize taking or damaging lands for an open ditch outlet, the additional rights necessary for open ditch construction may be secured by release or condemnation. [Ed. Note.-For other cases, see Drains, Cent. Dig. §§ 3, 62; Dec. Dig. 50.] 2. MANDAMUS 90-DRAINAGE COMMISSION ERS. The performance of the duty of drainage commissioners to provide an outlet of ample capacity for the waters of the district may be compelled by mandamus. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. 88 195, 196, 204, 223; Dec. Dig. 90.] Appeal from Circuit Court, Logan County; T. M. Harris, Judge. Suit by Philip Adolph and others against the Commissioners of Drainage District No. 2 and others. From decree for defendants, complainants appeal. Affirmed. Beach & Trapp, of Lincoln, for appellants. King & Miller, of Lincoln, for appellees. FARMER, J. Appellants, six landowners in drainage district No. 2 in Prairie township, Logan county, filed a bill against the commissioners of the district, praying that said commissioners be enjoined from removing or interfering with a 24-inch tile forming the main outlet for the district, and from constructing an open ditch through and across the lands of appellants for the main outlet. in consideration of the fact that the district had adopted that plan and would construct a tile outlet as recommended by the engineer, conveyed to the district the right to enter upon, construct, maintain, use, and repair such main tile drain through their lands, which deeds were accepted by the commisSioners, and the main tile drain constructed through appellants' lands. Laying the tile was completed in November, 1909. Its construction, maintenance, and repair cost the district $11,526.28, of which amount the appellant Scully paid $1,403.10, Adolph $1,117.22 Leavitt $1,117.73, and Burke $356.22, while the amounts paid by Schmidt and Spinker are not stated. The bill alleges that the tile was well laid; with the exception of a slight mistake in grade made by the contractor at one point, which can be remedied at a cost of $200; that it was adequate to drain the lands of the district promptly and efficiently in all ordinary floods, and in most of the extraordinary seasons, and worked well and efficiently for five years. The bill alleges that the season of 1915 was extraordinarily wet, and the heavy rains flooded and filled the water courses and outlets in creeks and rivers, so that some lands owned by Patrick Ryan, one of the commissioners, and by A. J. McGough, in the upper portion of the district, the owners claimed, were overflowed for a short period of time. Upon their complaint the commissioners procured a compe tent engineer to examine the system of drainage and determine whether an additional tile would carry the flood waters off, if there should be a recurrence of heavy rains like those of 1915. The engineer, after an examination, reported, recommending the correction of the defect in the grade of the main tile, which he said could be made at slight expense, and that by constructing an additional tile, with additional basins to catch the overflow, the waters of the district would be properly carried off in all floods. The commissioners levied a tax $500, of which appellants paid their pro rata share, for the purpose of repairing the defects in the grade of the tile; but it had not been expended for that purpose. At a meeting of the commissioners on January 22, 1916, they adopted a resolution for the construction of an additional tile and for the repair of the defect in grade. In April, 1916, Ryan was elected a commissioner, and he and Herbert, another commissioner, adopted a resolution to take up the 24-inch main outlet tile, and in its stead construct an open ditch through the lands of appellants for the main outlet. The bill alleges the district was organized under the Farm Drainage Act in 1908, and included 1,620 acres of land, of which the appellants owned 880 acres. Pursuant to the recommendation of the engineer employed by the commissioners to prepare plats, plans, and profiles for the drainage of the lands of the district, the commissioners regularly adopted the recommendations of the engineer 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 continrights 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 commissioners, after the completion of the work, to keep it in repair, and if they find, by reason of error in locating the ditches, or any of them, "or from any other causes the lands of the district are not drained or protected as contemplated, or some of them receive partial or no benefit, they shall use the corporate funds of the district to carry out the original purpose to the end that all the lands, so far as practicable, shall receive their proper and equal benefits as contemplated when the lands were classified." The bill was filed June 13, 1916, to the September term, 1916, of the circuit court. The May term was still in session when the bill was filed, and a motion was made in open court for a temporary injunction. The court set the motion for hearing June 22d. No answer, plea, or demurrer was filed by appellees, and the motion was heard on the bill only. The temporary writ was denied, and an order entered at the same time dismissing the bill for want of equity. Appellants have brought the record here by appeal. Appellants' position is that the drainage commissioners had the right and authority to contract with the land owners to construct a tile drain; that after they had adopted that system and constructed the same, which was ample to carry off the water under ordinary floods and most of the extraordinary floods, and could at a moderate expense be made sufficient for extraordinary floods, they could not change the system to an open ditch, involving many thousands of dollars damages to the landowners; also that the change would operate as a gross injustice and fraud upon the rights of appellants, and that upon that ground equity would enjoin the change. It is insisted that the deeds by appellants to the commissioners for the right of way were made in consideration that there was to be constructed and maintained a tile drain outlet, which was a covenant and contract binding on the district when the deeds were accepted, and could not be changed without the consent of appellants. [1] The bill concedes that in time of floods such as occurred in 1915 the outlet tile is inadequate, but it alleges that an additional tile could be laid at a reasonable expense which would furnish adequate outlet in flood times, and that the commissioners, prior to The commissioners were authorized to employ a competent engineer to assist them in laying out the work, and they have a reasonable discretionary power in adopting the plan and system of drainage. Preference is required by the Farm Drainage Act to be given tile drains where they will accomplish the purpose, but the commissioners are not bound to adopt them, if in the exercise of a reasonable discretion they deem that system inadequate. In Langan v. Drainage District, 239 Ill. 430, 88 N. E. 182, this court quoted from Peotone Drainage District v. Adams, 163 Ill. 428, 45 N. E. 266, where it was held, in substance, that where the landowners of a district have been assessed and taxed for the construction of drains and ditches sufficient to drain their lands they have a right to require the commissioners to do what the statute says they shall do, determine upon and adopt a system of drainage which will provide main outlets of ample capacity for waters of the district, and "if a system or plan of drainage is adopted which will not afford outlets of sufficient capacity to drain the lands of the district, the landowner will derive no benefit whatever from the taxation imposed upon him. This was never contemplated by the Legislature." It was held the statute required ample outlet to drain the |