Sections 176 and 18 of the Levee act, as amended in 1909, in so far as they provide a method for ascertaining benefits where no question of damages is involved, are not in contravention of section 13 of article 2 and section 14 of article II of the constitution, which relate exclusively to the taking or damaging of property for public use, and which contain no limitation upon the power of the legislature to provide methods for ascertaining the benefits to property assessed for drainage improvements. (Wabash Railroad Co. v. Coon Run Drainage District, 194 Ill. 310, distinguished.)

7. SAME-Section 17b of Levee act does not require jury to assess an arbitrary sum, regardless of benefits. Section 176 of the Levee act, as amended in 1909, does not, by requiring the jury to return a verdict which shall produce the total sum of the estimated cost of the proposed work and the proceedings incident to the same, require the jury to assess an arbitrary sum regardless of benefits, since the word "shall," as so used, may properly be given the meaning of "may," and is a directory and not a mandatory provision.

8. SAME-jury cannot assess total amount of estimated cost unless the benefits equal or exceed such sum. Section 176 of the Levee act, as amended in 1909, when properly construed, authorizes the jury to return a verdict which shall equal the total sum of the estimated cost of the proposed work and the proceedings incident to the same only when the benefits to the lands in the district shall equal or exceed such sum.

9. SAME-assessment cannot be levied to pay past indebtedness of district. An assessment cannot be made by levee drainage commissioners to pay past indebtedness, and if any portion of the assessment is made for such purpose it is to that extent null and void; but if the county court, in its order granting the prayer of the petition, finds that the assessment is made for the payment of future obligations and not for obligations previously incurred, it will be presumed, in the absence of a bill of exceptions, that the evidence heard by the court justified such finding.

10. SAME-district has no authority to incur liabilities or debts in excess of funds on hand. Drainage commissioners, in letting the contracts for the initial construction of the improvement, have no power to contract for any work in excess of that which can be paid for out of the original assessment, and as to any excess the contracts are ultra vires and void and cannot be enforced either against the contractors or the district, nor can a subsequent assessment be levied to pay for such excess.

II. SAME when assessment is not invalid as for past indebtedness. Drainage commissioners have a right, in contracting for excavation and concrete work by the cubic yard, to contract for as

many cubic yards as can be paid for, at the contract price, out of the funds on hand, and hence if it appears that at the time an additional assessment is asked for the contractors have not completed more work than can be paid for out of the funds the district then has on hand, the additional assessment is not levied to pay past indebtedness though it is to be used to pay for completing the work.

12. SAME real estate purchased by commissioners may be considered in estimating fund on hand. In determining whether the liabilities of a levee drainage district exceed the funds it has on hand from the original assessment at the time a petition for an additional assessment is filed, it is proper to add to the available assets of the district the fair value of land to which the district obtained title when purchasing the right of way for its ditch, even though the land is not necessary for any purpose of the district and though the commissioners may not have had power to acquire it.

13. SAME-fact that expenditure for a certain purpose exceeds amount estimated therefor is not a wrongful diversion. Under section 37 of the Levee act the commissioners are authorized to use the money arising from the collection of the assessments for any legitimate purpose of the district under the direction and supervision of the court, and the fact that the commissioners expend for certain purposes more than the sum which was specified in the estimate for such purposes does not constitute a wrongful diversion of the fund. (Vandalia Drainage District v. Hutchins, 234 Ill. 31, distinguished.)

14. SAME a drainage district has implied powers essential to carry out the powers granted. A drainage district necessarily possesses the implied powers necessary to carry out the express powers granted.

15. SAME-all expenses of district must be paid out of money collected by a special assessment. The only method provided by statute by which a drainage district can acquire funds is by assessment upon the lands in the district, and all expenses which the district is authorized to incur must therefore be paid out of money collected by this method.

16. SAME-commissioners may include in estimate a sum for collecting delinquent assessments. In estimating the amount necessary to be raised by a drainage assessment the commissioners have a right to consider the probable expense of collecting delinquent assessments in the manner provided by law, and may include a sum for that purpose in their estimate of the amount necessary to be raised by an additional assessment to complete the work and pay all incidental expenses.

17. SAME-parties desiring accounts of the commissioners to be more specifically itemized should apply to court. Parties to a proceeding for an additional drainage assessment who desire the commissioners' accounts of their receipts and expenditures to be more specifically itemized should request the court to require the commissioners to file a more specific account, and in the absence of such a request they cannot complain, on appeal, that the accounts filed were not itemized as required by law.

18. SAME-Court's findings of fact upon granting prayer of petition are binding unless modified before confirmation. A finding by the court, in its order granting the prayer of a petition for an additional assessment, that the assessment is made to pay future obligations is merely interlocutory and subject to be modified or vacated before the entry of the judgment of confirmation, but until modified or set aside it is binding upon the parties; and the court cannot be required to re-try the question at some subsequent stage in the proceedings, in absence of any showing of good cause why objection was not interposed and evidence presented at the hearing on the petition. (Ahrens v. Drainage District, 170 Ill. 262, and Vandalia Drainage District v. Hutchins, 234 id. 31, distinguished.)

19. SAME-Court does not lose jurisdiction of proceeding upon sustaining objections to assessment roll. Upon sustaining objections to an assessment roll and vacating and setting aside the assessment against all the lands of the district the county court does not lose jurisdiction of the proceeding but may grant leave to the petitioner to file a new assessment roll. (Claussen Park Drainage District v. Daily, 239 Ill. 428, distinguished.)

20. SAME-land owners of a district may act as commissioners under amendment of 1909. Under the Levee act, as amended in 1909, it is not now a valid objection to a levee drainage assessment that the commissioners are owners of lands in the district which are assessed for the work. (Meredosia Lake Drainage District v. Evemeyer, 244 Ill. 115, adhered to.)

21. SAME-the constitution does not limit drainage assessment to lands. The constitutional amendment of 1878, authorizing the enactment of drainage legislation, does not limit such legislation to special assessments for drainage purposes upon land or real estate but authorizes special assessments upon property benefited.

22. SAME-constitution authorizes legislature to make a street railway liable to drainage assessment. A street railway is "property" within the meaning of the drainage amendment to the constitution, and the legislature has the same authority to provide that street railways shall be subject to drainage assessment as it has to authorize the special assessment of a street railway for the purpose of a local improvement.

23. SAME-Section 55 of Levee act authorizes assessment of a street railway. Section 55 of the Levee act, as amended in 1885, authorizing a drainage assessment to be levied against the property of "any public or corporate road or railroad" benefited by the construction of ditches, drains or levees, authorizes the assessment of a street railway within the district for its just share of the benefits to be derived from the work of the district.

24. SAME-every owner of assessed property is injured by the omission of property liable to assessment. Every person whose property is assessed for benefits from a drainage improvement is injured by the omission to assess other property liable to assessment, and he is entitled to prove, upon application for a judgment confirming the assessment, that property omitted from assessment will be benefited.

25. SAME-Levee act does not authorize assessment of property of telegraph, telephone and gas companies. The language of the Levee act does not authorize the levy of a drainage assessment against the poles, wires, pipes, fixtures and other like property of telegraph, telephone, electric light and gas companies.

26. SAME railroad company cannot object that district has not obtained consent of highway authorities to do its work. A railroad company has no standing to object to a levee drainage assessment upon the ground that the district has not obtained permission from the highway commissioners to construct its ditch and walls in and upon a certain highway.

27. SAME-verdict of jury as to benefits is entitled to weight given the verdict in a condemnation case. Where the jury, in a proceeding by a levee drainage district to levy an additional assessment, has heard the evidence and viewed the premises, its verdict fixing the amount of benefits is entitled to as much weight in a court of review as a verdict in a condemnation case, and will not be set aside solely because the testimony of the witnesses preponderates in favor of the appellant.

28. STATUTES-when word "shall" may be construed to mean "may." The word "shall," when used in a statute, may be held to be directory, merely, and as being synonymous with "may," where such a construction is rendered necessary by the evident intention of the legislature and no right or benefit to anyone depends upon its being given an imperative meaning.

COOKE, FARMER and DUNN, JJ., dissenting.

VICKERS, C. J., specially concurring.

APPEAL from the County Court of Will county; the Hon. ARTHUR W. DESELM, Judge, presiding.

KNAPP & CAMPBELL, O'DONNELL, DONOVAN & BRAY, and JOHN R. COCHRAN, for appellant the Elgin, Joliet and Eastern Railway Company.

O'DONNELL, DONOVAN & BRAY, for appellant the Michigan Central Railroad Company.

SNAPP & HEISE, for appellant the Chicago, Rock Island and Pacific Railway Company.

DAN R. BURKE, for appellant the city of Joliet.

S. J. DREW, for appellee.

Per CURIAM: This is an appeal by the Elgin, Joliet and Eastern Railway Company, the Michigan Central Railroad Company, the Chicago, Rock Island and Pacific Railway Company and the city of Joliet from a judgment of the county court of Will county confirming a drainage assessment against lands of the appellant companies and the streets and alleys of the city within the boundaries of the Spring Creek Drainage District. The drainage district was organized under the Levee act, by an order of the county court of Will county, in March, 1903, to furnish to the lands in the district protection from the overflow waters of Spring creek, a small stream partly within and partly without the city of Joliet, and an original assessment of $165,000 against the lands in the district was confirmed by the county court on July 29, 1904. The plans provided for the deepening, widening and straightening of Spring creek and the construction of concrete walls on the sides thereof, and the work was divided into two principal divisions, designated as the "main channel" and the "north branch." A contract for excavating the main channel, except those portions extending through the lands of the appellant railroad companies, was let to one Robert Shannon on September 17, 1907, the price fixed by the contract being forty