Morgan v. Schusselle (228 Ill. 106, 1907)

Mr. Justice Scott

delivered the opinion of the court:

The appellants, as commissioners of the Central Special Drainage District in the county of Mason and State of Illinois, brought an action of debt in the circuit court of Mason county, to the February, 1906, term, against appellees, as commissioners of highways of the town of Pennsylvania, in said county, to recover the sum of $317 expended by appellants, as commissioners of such drainage district, in constructing a bridge over a ditch of the drainage district in said town. The cause was submitted to the circuit court without a jury, upon a stipulation of facts. The finding was in favor of appellees, and judgment was rendered against appellants for costs. Appellants have appealed to this court.

Mason county is under township organization. The drainage district, which was organized under the Farm Drainage act and which embraces 22,000 acres of land, includes parts of three towns in said county, one of which is the town of Pennsylvania. Said town contains 23,040 acres, only 5920 acres of which are within the drainage district. The town of Pennsylvania has been heretofore assessed for benefits to highways by the drainage district, all of which assessments have been paid. The drainage district includes within its boundaries a certain public highway running north and south in the town of Pennsylvania. The center line of this highway is the east boundary line of a certain tract of land now owned by one Benjamin Itzen, which lies in the town of Pennsylvania and which is included in the drainage district. This highway was in existence at the time the drainage district was organized, and was at that time, and now, is, the only highway contiguous to said tract of land. In 1887 the drainage district constructed one of its ditches, which does not, and never did, constitute a natural water-course, in said highway and west of the center line thereof, along the entire east side of the land now owned by Itzen, thereby separating said land from the line of travel in the highway. It thereupon became necessary to construct a bridge over said ditch in order to connect said tract of land with the highway for the use of the owners and occupants of said tract in passing to and from the highway, and accordingly the then acting commissioners of the drainage district, immediately after the construction of the ditch, built such bridge. The commissioners of highways never assumed any authority or jurisdiction over that bridge, but the same was always maintained by the commissioners of the drainage district. Shortly before the commencement of this suit.the bridge above mentioned became out of repair and it was necessary to replace it with a new bridge. Itzen notified appellants of the necessity for a new bridge, and appellants thereupon served a written notice upon appellees to construct said bridge within thirty days, and that in default thereof appellants would build said bridge and would bring suit against appellees for the costs and expenses thereof. After the expiration of the thirty days mentioned in the notice, appellees having failed to construct the bridge, appellants built the same at a cost of $317 and brought this action of debt to recover that amount from appellees.

Section 40½ of the Farm Drainage act (being paragraph 115 of chapter 42 of Hurd’s Revised Statutes of 1905) is as follows: “The commissioners shall have the power and are required to make all necessary bridges and culverts along or across any public highway or railroad which may be deemed necessary for the use or protection of the work, and the cost of the same shall be paid out of the road and bridge tax, or by the railroad company as the case may be: Provided, however, notice shall first be given to the road or railroad authorities to build or construct such bridge or culvert, and they shall have thirty days in which to build or construct the same, such bridges or culverts shall in all cases be constructed so as not to interfere with the free flow of water through the drains of the district. Should any railroad company refuse or neglect to build or construct any bridge or culvert as herein required, the commissioners constructing the same may recover the cost and expenses therefor in a suit against said company before any justice of the peace or any court having jurisdiction, and reasonable attorney’s fees may be recovered as part of the cost. The proper authorities of any public road or railroad shall have the right of appeal the same as provided for individual land owners.”

Appellants insist that this section of the statute authorized them to construct the bridge in question after the commissioners of highways had been notified and had refused so to do, and to recover the cost thereof in this action of debt against the highway commissioners. Appellees, on the other hand, contend, first, that the section above quoted has no application to a bridge in the highway which is made necessary by the construction by a drainage district of an artificial ditch in the highway-, which bridge is not in the line of public travel along the highway; and second, that the statute is unconstitutional in so far as it imposes upon a town, or the road and bridge fund thereof, a liability to pay for bridges constructed in a public highway by the