and they contend that they were thereby deprived of a hearing on the objection that the assessment was levied to pay past indebtedness. We have hereinbefore considered this objection as presented by the petition and exhibits thereto, but the appellant railroad companies contend that they were deprived of the benefit of having the evidence considered which they might have produced in support of the objection.

The Elgin, Joliet and Eastern Railway Company interposed objections at the hearing upon the petition. These objections did not include one questioning the purpose for which the assessment was sought to be levied. The other appellant railroad companies were defaulted, thereby admitting as true the allegations of the petition. From these allegations it appeared that the entire amount of the additional assessment was required for future work and expenses and that no part thereof was required to pay past indebtedness, and the order of court so found. None of the appellant railroad companies were therefore in a position to thereafter contend that these allegations of the petition were untrue and the findings of the court thereon for that reason erroneous. The order entered upon the petition was merely interlocutory and was subject to be modified or vacated by the court at any time before the entry of the judgment of confirmation, but until so modified or set aside. its findings upon questions of fact presented by the petition were binding upon the parties, and the court could not be required to re-try those questions at some subsequent stage of the proceedings, in the absence of a showing of some good cause why the objection was not interposed and the evidence presented at the hearing upon the petition.

In Ahrens v. Drainage District, supra, and Vandalia Drainage District v. Hutchins, supra, upon which appellants rely to support their contention that an objection to the assessment on the ground that it is levied to pay past indebtedness could, under the former statute, have been interposed upon the application for confirmation of the as

sessment roll, the fact that the assessment included a certain sum for the payment of past indebtedness appeared from the face of the petition, and it required only an inspection of the record in order to disclose the error of the court in granting the prayer of the petition. A consideration of the objection to the confirmation of the assessment on that ground did not require a rehearing upon a question of fact that had been determined adversely to the objectors at the hearing upon the petition, and it was the duty of the court to correct the error apparent on the face of the record, upon the application of any person injured thereby, at any time prior to the entry of the final judgment confirming the assessment roll. An objection to the confirmation of the assessment roll based upon such error constituted such application, and the action of the court in overruling the objection was held in each of the cases cited by appellants

erroneous.

The appellant railroad companies had no right, under the statute in force when the petition was filed, to re-try the question whether the assessment was levied to pay past indebtedness upon objection to the confirmation of the assessment roll, and the court committed no error in denying the motions to set aside the order granting the prayer and for a rehearing upon the petition.

Eighth After the entry of the order of July 15, 1909, vacating that portion of the order of March 31, 1909, directing the commissioners to make the additional assessment, setting aside the assessment roll made and returned by them and directing the clerk to cause a jury to be drawn, the appellant railroad companies entered their respective motions to dismiss the proceedings as to them, on the ground that the court, on June 18, 1909, having sustained objections interposed by them to the assessment roll made by the commissioners on account of the interest of the commissioners in a portion of the lands assessed for benefits, was without jurisdiction to further proceed in the matter

against the objectors. These motions were denied, and the action of the court thereon is urged as cause for reversal. The only reason pointed out by appellants why these motions should have been granted is, as they contend, that we held in Commissioners of Drainage District v. Daily, 239 Ill. 428, that when the county court sustains objections to an assessment roll made by commissioners on account of the interest of the commissioners in a portion of the lands included in the assessment roll, it can make no further order under the original petition for the assessment of the lands of the objectors. While certain language used in that case, when considered alone, furnishes support for the appellants' contention, it was only applicable to the facts disclosed by the record then before us, and must not be regarded as announcing a general rule that after sustaining objections to an assessment roll the court can make no further order for the assessment of the lands of objectors. In the Daily case the county court ordered the commissioners to make the additional assessment of benefits in lieu of a jury, and in the same order provided for a jury to spread the assessment upon the lands of all the land owners who might, on any ground, object to the assessment roll to be made by the commissioners. Upon the filing of the commissioners' assessment roll certain land owners interposed objections, which were confessed by the petitioner, and the court quashed the assessment roll as to the objectors, confirmed it as to all other land owners and ordered a jury empaneled to spread the assessment upon the lands of the objectors. As applied to that state of facts, the statement that when the court sustained the objections to the commissioners' assessment roll "it could make no further order, under the original petition in this proceeding, for the assessment of said lands of said objectors," was only intended as a determination that when the court ordered the commissioners of the district to make the assessment of benefits in lieu of a jury and confirmed the commissioners'

assessment roll as to a portion of the lands, it was without power to then empanel a jury to spread the assessment on the remainder of the lands, and this for the obvious reason that the assessment was, under the statute, an entirety and the whole of it was required to be spread by the same body of men, and there was no provision in the statute authorizing a portion of the assessment to be spread by the commissioners and the balance by a jury. In the case at bar, however, the assessment roll made by the commissioners was set aside as to all the lands and the entire assessment was made by a jury. The Daily case is not authority for appellants' contention that the county court was without authority to order a jury empaneled to spread the whole assessment, after sustaining their objections to the assessments against their lands and vacating and setting aside the assessments against all the remaining lands in the district, and there was no error in the action of the court in denying their motions to dismiss the proceedings.

Ninth-When the commissioners' second roll of assessments of benefits was offered in evidence upon the hearing before the jury, appellants objected to its admission upon the ground that each of the commissioners owned land within the district and that the assessment roll showed an assessment against such land. The objection was overruled and appellants complain of this action of the court. We have recently, in the case of Meredosia Lake Drainage District v. Evemeyer, 244 Ill. 115, considered this same objection when interposed to an assessment made under the Levee act as amended in 1909, and there decided it adversely to appellants' contention. Appellants' argument against the correctness of that decision has not led us to change our views as therein expressed.

Tenth-It is next contended that the court erred in confirming the assessment because certain property within the district benefited by the improvement was not assessed. The property alleged to be liable to assessment and which

was omitted consists of a street railway passing through the drainage district over and upon a street and public highway known as Cass street, gas pipes laid within the streets and highways within the district belonging to a private corporation, and poles, wires and fixtures of certain telegraph, telephone and electric light companies placed upon the streets and highways within the district. A portion of Cass street which is within the drainage district is within the city of Joliet and a portion is outside the city. It was stipulated upon the trial that the Chicago and Joliet Traction Company was operating the street railway upon that portion of Cass street which is within the city of Joliet under a franchise from the city, and on that part of Cass street which is outside the limits of the city under a franchise from the proper officials. Appellants then sought to show that the traction, gas, telegraph, telephone and electric light companies would receive benefits from the work of the drainage district, but the court refused to permit such proof, and this ruling is assigned as error.

No case has been called to our attention, and we are aware of none, where this court has passed on the liability of a street railway company to a special assessment by a drainage district. By an amendment of the constitution of 1870, which was adopted at the November election, 1878, it was provided as follows: "The General Assembly may pass laws permitting the owners of lands to construct drains, ditches and levees for agricultural, sanitary or mining purposes, across the lands of others, and provide for the organization of drainage districts and vest the corporate authorities thereof, with power to construct and maintain levees, drains and ditches, and to keep in repair all drains, ditches and levees heretofore constructed under the laws of this State, by special assessments upon the property benefited thereby." It will be observed that by this constitutional provision the legislature authorized the organization