name of an old ditch, and, by reason of its location and construction under the laws then and now in operation, it is a public water course. It is expressly so declared by 4500, Rev. Stat. 1892. In order to procure its original location and construction, it was incumbent upon the petitioners therefor, among other things, to state in their petition, and show at the hearing before the commissioners, that the proposed ditch would be conducive to the public health, convenience, or welfare, and it was necessary for the commissioners to find and record that important fact in order to give them jurisdiction to establish the ditch. Such a finding was essential because the improvement petitioned for contemplated the appropriation of private property, which

a landowner. to be by him kept in repair, is valid, although no personal notice is given him of the time and place to hear objections there to, as required by statute, when he voluntarily appears and presents his objections. Hendricks County v. Trotter, 19 Ind. App. 626, 49 N. E. 976.

Where an attempted allotment for ditch re pairs is void for failure to give the necessary notice, the proper officers may proceed to make a valid one, and need not proceed under the provisions of the statute governing the making of allotments when the first one is found to be inequitable. Hille v. Neale, 32 Ind. App. 341, 69 N. E. 713.

The duties imposed by law on county surveyors to reallot county ditches to the various landowners for repair, and to inspect and accept completed allotments, although requiring the exercise of judgment and discretion, do not impose upon that officer a judicial function within the meaning of the constitutional prohibition against the imposing of judicial functions up on ministerial officers. Ellis V. Steuben County, 153 Ind. 91, 54 N. E. 382.

The duty of repairing a ditch is not cast upon the landowner by a provision that he shall keep it open through his land, which means no more than that he shall not fill it up, or allow it to be filled up. Lile v. Gibson, 91 Mo. App. 480.

We

could only be done for a public use. assume the proceedings which resulted in the location and construction of the orig inal ditch were conducted as the law required, and that it was found and recorded by the county commissioners that the ditch, when constructed, would promote the public health, convenience, and welfare. For that public purpose lands could be, and no doubt were, appropriated, for which, under our Constitution, the owners were entitled to compensation and damages; and, if the award of the commissioners was not satisfactory, there was a right of appeal to the probate court, where the landowner could be heard before a constitutional jury as to such compensation and damages and other questions. The statutory provisions furlands, and the ample drainage of the same, within such districts. Briggs v. Union Drainage Dist. No. 1, 140 Ill. 53, 29 N. E. 721.

The assessment.

The court cannot make and levy an assessment for annual benefits upon lands in a drainage district, for keeping the improvements therein in repair, where the statute under which the district was organized requires such assessments to be made by a jury, and nowhere authorizes the court to do so without a jury,— especially where such assessment is made without notice to the landowners, and no opportunity is given to them to be heard in the matter. Robeson v. People, 161 Ill. 176, 43 N. E. 619.

A township trustee is not estopped from making an assessment on lands benefited by repairs to a public ditch because eighteen months elapsed from the completion of the work to the making of the assessment, in the absence of any statutory provision as to time, where the cost of such repairs has been paid out of the public treasury, and it does not appear that the work was not necessary, or that the trustee acted in bad faith, and the rights of parties have not been changed or those of third parties affected by the delay. Geiger v. Bradley, 117 Ind. 120, 19 N. E. 760.

Drainage commissioners of drainage districts

A landowner failing to repair his share of a public ditch within the time specified in a statutory notice is liable for a tax imposed on account of the repairs being made by the trustee of the ditch, although the trustee agreed that the landowner might complete the repairs after the time limited by the notice had expired. Davison v. Campbell, 28 Ind. App. 688, 63 N. E. 779.

The drainage laws of Illinois authorize the drainage commissioners to raise money by assessment upon the lands within drainage districts for use, under the direction of the court. in repairing or maintaining ditches outside as well as inside the district, where such outside drains are necessary for the protection of the

have the right to use funds on hand to repair work already done, or more fully to protect the lands of the district; but if there are no funds on hand, they must first make a new tax levy before contracting additional indebtedness. They cannot make an assessment to meet a prior indebtedness. First Nat. Bank v. Union Dist. No. 1, 82 Ill. App. 626.

The authority of the county clerk to extend the drainage tax is the certificate of the commissioners, and, unless, a valid certificate is on file, he is powerless to extend the tax. And to render the tax valid the certificate of the commissioners requiring its levy must conform to the provisions of the statute, stating for what purposes the tax is to be levied. People ex rel. Trobaugh v. Glenn, 207 Ill. 50, 69 N. E. 568. The court says that, under the statute, the taxpayer has the right to be informed for what purposes his property is to be taxed, and that the statute provides that the amount raised for the payment of interest on indebtedness

nished the owner of lands taken for the ditch a ready and convenient remedy for the enforcement of the constitutional guaranties for the protection of his rights. No doubt the landowners who desired to do so availed themselves of all these provisions made in their behalf.

Another observation is likewise pertinent. Our ditch laws are the exercise of police power committed to the general assembly. This was held in Sessions v. Crunkilton, 20 Ohio St. 349. The proposition there stated is that the construction of drains by townships in cases where the public health, convenience, and welfare demand it, is within the meaning of "police powers" mentioned in § 7 of article 10 of our state Constitution. The means of promoting and conshall be kept separate from the balance of the amount raised.

Rights of landowner.

A statutory provision that notice of the time and place of letting contracts for the work of widening or extending a drain be served upon every person whose lands are affected by such assessment does not require such notice to be given in a proceeding to clean out a drain. Lanning v. Palmer, 117 Mich. 529, 76 N. W. 2. Although notice of some kind is required preparatory to a final assessment of benefits on lands for the repair of a public ditch, is rests with the legislature to determine what it shall be, provided landowners are not thereby subjected to unreasonable inconvenience and em barrassment. Weaver v. Templin, 113 Ind. 298.

14 N. E. 600. A provision in a drainage law authorizing county surveyors to repair public ditches and assess the cost thereof upon the lands adjudged by the court to have been benefited by the orig. inal construction in proportion to that assessment is not unconstitutional as the taking of property without due process of law because no notice is required to be given landowners of the intention to make repairs or assessments. where notice of assessment after it is made is provided for, and opportunity is given to ap

serving the public health and welfare provided by legislation are so provided in the exercise of the police powers existing in the general assembly. And § 3, now involved, prescribes one of the methods of promoting the public health, convenience, and welfare. It reads: "Provided, however, that when a ditch needs to be cleaned out, any resident owner of any tract of land which was assessed for the construction may make a sworn statement to the county auditor, in writing, setting forth such necessity. And when said written sworn statement is made within three years from the original construction, or for material improvement by deepening and widening said ditch, and as often thereafter as may be necessary to keep said ditch in good rein the proportion of such benefits, which assessments are a lien upon such lard, by ex parte proceedings, without giving the owners of the lands affected an opportunity to be heard, and making no provision for appeal,-is unconstitutional and void as repugnant to the provision of the Bill of Rights that every person shall have remedy by due process of law for injury to his person, property, or reputation; also as violating the provision of the Federal Constitution prohibiting the depriving a person of life, liberty, or property without due process of law. Campbell v. Dwiggins, S3 Ind. 473.

Estoppel.

Landowners are not estopped to contest the validity of an assessment on their lands for the repair of a noncompleted public ditch by standing silently by with full knowledge, and allowing the work to be done without objection, where the assessment is absolutely void because the officer making the repairs had no jurisdiction of the ditch before its completion and acceptance. Morrow v. Geeting (Ind. App.) 37 N. E. 739.

One assessed for the deepening and widening of a ditch which the trustees had no authority to order, under a petition merely for the cleaning out of a ditch, is not estopped to object after the work is done. Deuyer v. Shonert, 1

Ind. 65. 11 N. E. 958.

A section in the statute authorizing township trustees to keep the drains in their townships in repair and free from obstructions to determine the necessity for such repairs and removals and the cost thereof, and to apportion and assess such cost upon the lands which, in their judgment, will be benefited thereby

Irregularities.

One who petitioned for the cleaning out of a drain and acquiesced in the work, cannot avoid payment of the expense on the ground of mere irregularities in the proceedings. Lanning v. Palmer, 117 Mich. 529, 76 N. W. 2.

How far court may review and control pro ccedings.

The limitation of the questions to be tried upon appeal by a landowner from an assessment for the repair of a public ditch by a county surveyor, to a determination of the cost of the repair and what amount thereof should be assessed against the owner's land, does not, in view of the fact that it is only through the medium of such an appeal that aggrieved landowners may make objections to the proceedings, prevent the examination, as preliminary and incidental to the trial on its merits, of questions

designate certain officers of a county or township who may, in a prescribed mode, upon application and due notice to parties interested, restore our public drains and water courses to their original condition. Judicial authority is not essential, for all parties in interest were duly heard before the tribunal appointed by law when the original construction was ordered.

The petition charges that the section quoted violates § 19 of article 1 of the state Constitution, which, in part, reads: "Private property shall ever be held inviolate. but subservient to the public welfare,

. and in all other cases where private property shall be taken for public use a compensation therefor shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury without deduction for benefits to any property of the owner." We are unable to see how the statute assailed conflicts with this fundamental law. The property occupied by the ditch was taken by its original construction when the parties along its line whose lands were taken had ample opportunity to obtain compensation; and if they applied for the same we must assume their applications were considered, and proper awards made. But the proceeding to clean out the original channel

ous, but absolutely void and without any authority. Terre Haute & L. R. Co. v. Soice, 128 Ind. 105, 27 N. E. 429.

A railroad company cannot enjoin the collection of an assessment upon its right of way for the cost of repairing a public ditch upon the ground that the ditch, as originally established and constructed, was not rightfully located upon its right of way, and that no right existed to go upon such land for the purpose of making repairs; as that question cannot be brought up in a collateral attack,-especially where the company acquiesced in the location and construction of the ditch on its right of way. Davis v. Lake Shore & M. S. R. Co. 114 Ind. 364, 16 N. E. 639.

Liability for nonrepair.

The owner of land across which a drain passes onto adjoining land is liable if, by reason of the poor repair of the portion of the drain which crosses his premises, any of the sewage escapes and flows onto the adjoining land, even though he did not know of the existence of the drain; it being his duty to keep the sewage which he was himself bound to receive from passing from his own premises to the adjoining premises otherwise than through the drain. Humphries v. Cousins, L. R. 2 C. P. Div. 239.

The occupier, and not the owner, of premises is prima facie liable for injuries to adjoining lands arising from a failure to cleanse and repair drains and sewers located on the premises. Russell v. Shenton, 3 Q. B. 449.

A covenantee for the use of a public drainage canal cannot escape from his obligations thereunder, because of the omission of the other

under § 3 does not seek or attempt to appropriate any lands of the defendants in error. Its sole purpose is to restore the water course to its former condition of usefulness. There is nothing for which the landowners are entitled to any compensation, for they part with nothing. The petition also alleges that the section is unconstitutional, "for the reason that no discretion is given to any officer, board, or tribunal to determine or decide whether the improvement . . . is for the public health, convenience, and welfare, but makes the duties to be performed under said act mandatory upon said auditor and surveyor." Again we think the section is misconstrued. When the ditch was established originally, it was alleged by the petition and determined by the commissioners that the ditch was necessary and its construction would be conducive to the public health, convenience, and welfare. We say this because the law required the petition to so allege and the commissioners to so find before the ditch could be legally established. The questions settled by the original proceedings imply that to subserve the public good the ditch should remain open and free from obstruction. Hence, the questions concerning the public health, convenience, and welfare have been once settled, and need not be reasserted in the new proceeding.

parties to repair the lower portion thereof; since his covenant points out the remedy for such misuser of their franchise. Norfleet v. Cromwell, 70 N. C. 634, 16 Am. Rep. 787.

One who contracts to construct part of a box drain which, after crossing the lands of his neighbor, enters his premises, is liable for damages arising from his failure to open an outlet below the drain to carry off the water, whereby work upon the drain is prevented. Britten v. Dunning, 55 Mich. 158, 20 N. W. 883.

Certification of cost.

The power conferred on county surveyors by a statute making it their duty to keep publie ditches in repair, to certify the cost of such repairs as well as the amount of their own per diem to the county auditor, is not judicial, but merely a discretionary power, and such as the legislature has the power to confer upon administrative and ministerial officers. State ea rel. French v. Johnson, 105 Ind. 463, 5 N. E. 553.

Repeal of law.

A right to enforce the collection of the costs of repairs of a pubile ditch against lands, under the law existing at the time a contract therefor was entered into and part of the work done, is not lost by a repeal of that law, by virtue of a general law providing that repealed laws shall remain in force for the purpose of sustaining actions to enforce liabilities incurred thereunder, and also by the constitutional provision forbidding the passage of any law impairing the obligation of contracts. Crawford v. Hedrick, 9 Ind. App. 356, 36 N. E. 771.

H. P. F.