value of the assessable property in the city for the year 1887 until October 1, 1887. Apparently it was contended by the city that it did not become indebted for the $11,619 until the completion of the work, which was after October 1, 1887; that the value of the taxable property in the city should be ascertained by the assessment for the year 1887, and that when determined by the latter assessment the $11,619 was not in excess of the constitutional limit. In considering this question the court used the following language, which is relied upon by appellants as decisive of the question now under consideration: "By entering into the contract on August 15, 1887, the city 'became indebted.' The obligations entered into by the terms of the contract constituted such an indebtedness as is contemplated by the language of the constitution. It cannot be said that the indebtedness did not come into being until the work was completed and accepted by the city. The city bound itself to pay for the work when it should be completed, and could be compelled to do so if the work should be done according to the contract." Obviously, the statement that the city could be compelled to pay for the work when completed was a general statement, not intended to apply to the facts. in that particular case, but only intended to state the effect of such a contract where a city incurs a liability within the constitutional limit, the decision of the case being, that inasmuch as section 12 of article 9 of the constitution prohibited the city from becoming indebted in any manner or for any purpose to an amount in the aggregate exceeding five per cent on the value of the taxable property therein, the indebtedness was void to the extent of the amount of the excess over the constitutional limit.

If a city is prohibited from contracting a debt above a certain amount, then a contract by which it incurs the liability is necessarily ultra vires and void as to such excess, and consequently cannot be enforced against either party to the contract. Applying this principle to the contract of

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a drainage district, it follows that if the district has no authority to incur liabilities or debts in excess of the funds on hand, any contract by which it incurs such liability or debt is ultra vires and void as to such excess, and consequently cannot be enforced against the district or against the other party to the contract. The decision in Winkelmann v. Drainage District, supra, being the first case in which we held that an additional assessment could not be levied to pay outstanding liabilities of the district, was placed on the ground that the Drainage act provides “a particular mode in which, alone, the district is authorized to incur any indebtedness," and after setting out certain provisions of the act it was said: "These provisions of the act clearly indicate that the commissioners have no power to contract debts over and above the amount of the assessment. The prohibition against the contracting of the indebtedness before the making of the assessment to pay it is further apparent from the fact that the only mode indicated in the statute by which an indebtedness may be created is the borrowing of a certain percentage of the amount of assessment unpaid at the time of borrowing. Necessarily, therefore, the assessment precedes the contracting of the indebtedness. To create an indebtedness the means provided by the statute are the only means which can be resorted to. Inasmuch, therefore, as the provisions of the statute imply a want of power in drainage districts to create debts in excess of assessments or funds on hand," such excess can by no possibility be a lien on any of the lands in the district. The other cases decided by us to the same effect are all based on the want of power in commissioners to incur indebtedness against the district in excess of the assessment levied, or, in other words, the want of power in the commissioners to make contracts creating such indebtedness.

The contracts with Shannon and Blain, although they included all the work necessary for the completion of the

main channel except those portions upon the railroad lands, did not fix any sum as the total compensation to be paid the contractors for the work. Both contracts fixed the compensation at a certain sum per cubic yard. The commissioners had the power to contract for as many cubic yards as could be paid for out of funds on hand at the rate fixed by the contract, and to that extent the contracts were valid. They had no power to contract for any work in excess of that which could be paid for out of the original assessment, and as to such excess the contracts were ultra vires and void and could neither be enforced against the contractors nor against the district. Had the contractors performed any work under the contracts in excess of that for which the commissioners had authority to contract, no assessment could be levied to pay for such work. It appears from the petition and exhibits, however, that there were sufficient funds remaining from the original assessment to pay the contractors for all work that had, at the time the petition was filed, been done by them. It does not, therefore, appear from the record that the additional assessment was levied to pay for work already done, and as no liability can be created by a void contract, it necessarily follows that the additional assessment, in so far as it was required to complete the main channel, was not levied to pay a past indebtedness or a liability already incurred.

The amended petition discloses the fact that on February 26, 1909, the district had cash on hand amounting to $9096.57 and that there was then due contractors for work done $11,530.57, and appellants contend that the difference between these two amounts represented an indebtedness which formed a basis for a portion of the additional assessment. It appears from the amended petition, however, that in addition to the cash on hand the district had, in purchasing the right of way for a portion of its ditch, obtained the title to certain real estate not necessary for right of way purposes, which was valued by the commis

sioners at $8000 and was included in their report as an asset of the district. Nothing appears from the record to show that the valuation placed on this real estate by the commissioners is incorrect, and it must therefore be presumed, in considering the question now before us, that the real estate owned by the district and not necessary for right of way purposes is of the value of $8000. This sum added to the amount of cash on hand made the available assets of the district $17,096.57, or $5566 more than the amount due contractors for work done.

Appellants contend, however, that the real estate held by the district cannot be considered in determining whether the district had incurred liabilities in excess of funds on hand, because the district had no power, under the statute, to purchase real estate. Conceding the lack of authority on the part of the commissioners of the district to acquire real estate by purchase, it does not follow that because the commissioners have improperly expended the money of the district for that purpose the money and the real estate are both lost to the district. It was proper to take into consideration the real estate owned by the district in determining whether the liabilities exceeded the funds on hand and whether any part of the additional assessment was for the purpose of paying indebtedness previously incurred.

Third-When the petition was filed, on February 15, 1909, and when the order granting the prayer of the petition was entered, on March 31, 1909, the statute did not authorize an assessment against a municipality on account of benefits to streets and alleys, and in the original assessment roll made by the commissioners and afterwards set aside by the court no assessment was made against the city of Joliet or against the streets and alleys of the city. When the commissioners made their second roll of assessments of benefits under the order entered July 15, 1909, the assessment of $3200 was spread against the city on account of benefits to the streets and alleys of the city within the dis

trict, such assessment being authorized by the amendment of May 29, 1909, to the Levee act. On September 20, 1909, the city entered its special and limited appearance in the cause for the purpose of making its motion to dismiss the petition, to vacate all orders and proceedings thereon and to vacate and annul the assessment spread against it by the commissioners, one of the grounds in support of said motion being that the assessment was sought to be levied to pay liabilities already incurred, and another being that a portion of the original assessment levied for construction purposes had been diverted by the commissioners to other purposes. A hearing was had before the court upon this motion, and the city contended that inasmuch as it was not a party to the proceedings when the order granting the prayer of the petition was entered, it had a right, at the hearing upon this motion, to introduce evidence in support of its objections to the levying of the additional assessment. This contention of the city was sustained and the court admitted the evidence offered by the city. This evidence wholly failed to show that the money to be derived from the additional assessment, or any part thereof, was required to pay past indebtedness. It did establish, however, that the estimate for excavation and concrete walls, upon which the original assessment was based, was $142,869 and the estimate for all other expenses $22,131.

It appeared from the reports attached to the petition and amendment thereto, that the district had expended for purposes other than excavation and concrete walls $65,805.13, and it is contended that there was therefore a wrongful diversion of $43,674.13 from the purpose for which that amount was levied, and that the district has no authority to levy an additional assessment to replace that amount in the fund from which it had been wrongfully diverted. The case of Vandalia Drainage District v. Hutchins, 234 Ill. 31, is relied upon in support of this contention. In that case the drainage district sought to levy an addi