Appellants offered to prove that the street railway would receive benefits from the work of this district. This evidence was rejected by the court and an exception preserved. We are not concerned with the amount of benefits that would be received nor with the basis upon which they are to be assessed. The court having excluded all evidence tending to show the benefits to the street railway, those questions did not arise. It must be assumed that the street railway would receive some benefits, but, whether small or large, the court erred in refusing an inquiry into this question.

It is said by appellee that even if it be conceded that certain property which was liable to assessment was omitted, that is no reason for reversing the order of confirmation. To this we cannot assent. Every tax-payer whose property is specially assessed is injured by the omission of other property that is liable. The effect of bringing in such omitted property will be to reduce the rate upon all other property of the district. In reference to the telegraph, telephone, electric light and gas companies whose property was not assessed, our conclusion is that there is no language in the Levee act which makes the property of these companies liable for the special assessment.

Appellants contend that section 55 of the Levee act, as amended May 29, 1909, is unconstitutional because it makes the judgment of confirmation a lien upon all the real estate owned by a railroad company and does not limit the lien to the property assessed, and because it authorizes an execution to issue upon such judgment which may be satisfied out of any property, real or personal, belonging to the company. This objection, so far as it applies to the second proviso of section 55, is well taken. That part of the proviso which attempts to create a lien upon all the property of the railroad company and authorize an execution to issue which may be levied upon any property belonging to the corporation is unconstitutional and void. The owner of

lands within a drainage district derives no benefit from the improvement except in so far as the lands within the district are benefited by the same, and the constitution only authorizes the General Assembly to provide for the construction and maintenance of drainage ditches by special assessment upon the property benefited. Special assessments made on account of supposed benefits cannot be made a personal liability of the owners of property against which the assessments are made. (Craw v. Village of Tolono, 96 Ill. 255.) The invalidity of this proviso, however, does not affect the rest of said section. The assessments against railroad property may still be enforced in the same manner that they are collected from other property.

The appellants also criticise sections 176 and 18 of the amended act because the first of said sections provides that the jury, which is required by section 17a to be empaneled according to the provisions of section 6 of the Eminent. Domain act, shall examine the lands in charge of a "foreman" to be elected by the jury instead of in charge of a sworn officer of the court, and because the jury are authorized and directed by both of said sections to ascertain, "to the best of their ability and judgment," the benefits which will accrue to the lands, etc., instead of being required to base their verdict upon the law and the evidence in the case. Appellants do not point out wherein the provisions of which complaint is made violate any provision of the constitution of this State, but rely wholly upon certain language used in the opinion in the case of Wabash Railroad Co. v. Coon Run Drainage District, 194 Ill. 310. What was said in that case referred solely to former provisions of the Levee act relating to the assessment of damages, which were held to violate section 13 of article 2 and section 14 of article 11 of the constitution of 1870. Those sections relate exclusively to the taking or damaging of private property for public use. They contain no limitation upon the power of the legislature to provide methods for

ascertaining the benefits to property assessed for drainage or other local improvements. Sections 176 and 18 of the Levee act, in so far as they provide a method for ascertaining benefits where no question of damages is involved, can not, therefore, be held to contravene the sections of the constitution above referred to, and hence the decision in Wabash Railroad Co. v. Coon Run Drainage District, supra, can have no bearing upon the validity or invalidity of those sections of the statute.

Section 174 provides for the empaneling of a jury in accordance with the provisions of section 6 of the Eminent Domain act, but does not provide that the subsequent proceedings shall be in accordance with the provisions of that act, as appellants seem to assume. It gives all persons interested the same right of challenge of jurors as in other civil cases in county courts, and provides that the jury shall be sworn. It gives to all parties to the proceeding the right to present to the jury their case in person or by counsel and offer any competent evidence as to benefits or damages, and provides that after the evidence has been presented and arguments of counsel heard, the court shall instruct the jury as to the law and the form of their verdict. After the evidence has been heard and the instructions given, the jury are required to examine the land, and in making up their verdict they are required to take into consideration their view of the premises as evidence and consider it with the other testimony offered in the case and allowed by the court. The criticism made by appellants that the statute merely provides for the form and not for the substance of a jury trial, even if that were a valid objection to the statute as applied to an assessment of benefits, is manifestly without merit.

Appellants also contend that section 17b is null and void because it requires 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," the objec

tion to this provision being that the jury are thereby required to assess an arbitrary sum, regardless of benefits. The validity of this section depends upon the sense in which the word "shall" is used. Where such a construction is rendered necessary by the evident intention of the legislature, the word "shall," when used in a statute where no right or benefit to anyone depends upon its imperative use, may be held to be directory, merely, and by legislative intention to be used synonymously with the word "may." (Wheeler v. City of Chicago, 24 Ill. 105; Canal Comrs. v. Sanitary District, 184 id. 597.) As it violates no rights. and sacrifices no benefits by being so construed, it is apparent that the word "shall," as here used, should be construed to be directory, merely, and not mandatory. An inspection of the whole act clearly discloses that it was the intent of the legislature to provide that while in no case should any tract of land be assessed in a greater amount than it would be benefited by the proposed work, or in a greater amount than its proportionate share of the estimated cost of the work and expenses, the jury might, if the facts warranted them in so doing, return a verdict which should produce the total sum of the estimated cost of the proposed work and the proceedings incident to the same. The provisions of this act limit the assessment against each tract to the benefits such tract will derive from the improvement, and it is only in cases where the benefits to the lands in the district shall equal or exceed the estimated cost of the proposed work and the proceedings incident thereto, that the jury are authorized to return a verdict which shall produce the total sum of the estimated cost of the work.

Eleventh-The appellants complain of the action of the court, upon the hearing before the jury, in refusing to permit them to show that the drainage district had not obtained permission from the highway commissioners to construct its ditch and walls in and upon a certain highway in the town of Joliet, this being a portion of the work to be

paid for out of the additional assessment. In this ruling of the court there was no error as against the appellants. Whether the district had obtained permission to use the highway was a question which only concerned the town of Joliet. (Iroquois Drainage District v. Harroun, 222 Ill. 489.) Appellants cannot complain of rulings which only affect other parties to the proceeding.

Twelfth-Each of the appellant railroad companies contends that the benefits to its lands from the drainage system, when completed, will not exceed the amount of the original assessment against such lands, and that the verdict of the jury finding that the lands of each of the railroad companies would receive benefits in excess of the original assessment is contrary to and unsupported by the evidence. The city also contends that the streets and alleys within the district will not be benefited to the amount assessed against them, or in any amount. At the hearing before the jury upon the question of benefits the district presented the commissioners' second roll of assessments of benefits, which, by virtue of the provisions of the statute, made out a prima facie case for the district. Appellants then introduced their evidence tending to show that their lands and the streets and alleys would not be benefited in excess of the amounts theretofore assessed against them, and the district, in rebuttal, offered evidence tending to show that the lands of the railroad companies and the streets and alleys of the city would be benefited at least as much as the total of the original and additional assessments against them. After hearing this testimony and being instructed by the court as to the law applicable to the assessment of benefits, the jury viewed the premises and saw the conditions surrounding and affecting the lands of the railroad companies and the streets and alleys of the city. They were required by the statute to take into consideration their view of the premises as evidence and consider it with the other testimony in the case in finding their verdict. The mere fact that the