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(148 N.E.)

a new trial was overruled, and judgment a part of which was to be expended on work rendered on the verdict, from which judgment this appeal is prosecuted by the land

owners.

No error is assigned as to the adequacy of the compensation awarded. Some questions as to the regularity of the procedure are raised, but the principal contention of appellants is that appellee had no power to condemn appellants' lands which were outside the district, and that there was no necessity for taking the lands for the purposes that they were sought to be taken. The question here presented the right of the district to condemn land for diversion purposes-has never been decided by this court.

outside the district. The court held the statute authorized the expenditure on work outside the district, under the order and direction of the court. The same question was considered in Briggs & Frith v. Union Drainage District, 140 Ill. 53, 29 N. E. 721, and the court held the drainage commissioners had the power to use money raised by assessment against the lands in the district, under the direction of the court, on the construction of work outside the district, necessary for the protection and complete drainage of the lands of the district. That decision was approved in Binder v. Langhorst, 234 Ill. 583, 85 N. E. 400. In that case the court said:

"The power of the commissioners, under the direction of the court, to construct any work necessary for the protection and ample drainage of the lands within the district, whether the work is to be done within or without the district, and to raise money by assessment for that purpose, is plainly given by the statute."

The court also held the obligation and the power of the commissioners are the same under the Levee Act as under the Farm Drainage Act. Bay Bottoms Drainage District v. Cache River Drainage District, 295 Ill. 301, 129 N. E. 152, sustains the power of the commissioners to condemn lands outside the district for the complete drainage and reclamation of the lands in the district.

[1-4] A drainage district is organized for a public purpose, and is a quasi municipal corporation, and possesses authority to exercise the powers necessary to carry out the purposes for which it is organized. The Constitution and statutes authorize a drainage district to raise funds to accomplish the objects for which it is organized, by special assessment, which is the power to tax, and a requisite of the power to tax is that the tax shall be for public purposes. A drainage district is therefore held to be a public corporation, and has the right to exercise the power of eminent domain for proper purposes. Havana Township Drainage District v. Kelsey, 120 Ill. 482, 11 N. E. 256; Elmore v. Drainage Comrs., 135 Ill. 269, 25 N. E. 1010, Appellants contend those cases go no fur25 Am. St. Rep. 363; Cleveland, Cincinnati, ther than to hold the commissioners may apChicago & St. Louis Railway Co. v. Polecat propriate lands outside the district for outDrainage District, 213 Ill. 83, 72 N. E. 684; let or similar purposes but do not authorize City of Joliet v. Spring Creek Drainage Dis- the construction of diversion canals upon the trict, 222 Ill. 441, 78 N. E. 836; Hutchins v. lands of others outside the district. It is Vandalia Drainage District, 217 Ill. 561, 75 conceded the statute authorizes the commisN. E. 354; Smith v. Claussen Drainage Dis- sioners to appropriate lands outside the district, 229 Ill. 155, 82 N. E. 278. It is well trict for an outlet in the complete drainage settled, as stated by Dillon in his work on of the district. The language of the statute Municipal Corporations, that in addition to does not restrict the power to appropriate the powers expressly granted them, such cor- lands outside the district to the providing porations may exercise such powers as are of an outlet for draining the lands in the necessarily implied in or incident to the pow- district. The commissioners are authorized ers expressly granted. City of Chicago v. to spend money raised by assessments M. & M. Hotel Co., 248 Ill. 264, 93 N. E. 753. against the lands in the district in the con"A drainage district necessarily possesses struction of work outside the district necesthe implied powers necessary to carry out sary to the protection and complete drainage the express powers granted." Spring Creek of the lands within the district. The charDrainage District v. Elgin, Joliet & Eastern acter of the work authorized is limited only Railway Co., 249 Ill. 260, 94 N. E. 529. Such to such work as may be necessary to comcorporations are expressly authorized by sec-pletely protect and reclaim the lands in the tion 37 of the Levee Act to expend the money raised by the corporation "for the purpose of constructing or repairing or maintaining any ditch, ditches, drains, levee or levees within said district or outside of said district, necessary to the protection of the lands and complete drainage of the same within said districts," under the approval of the court.

Hosmer v. Hunt Drainage District, 134 Ill. 360, 26 N. E. 584, involved a second assessment made in an already organized district,

district. Diversion canals outside the district, if necessary to the complete protection of the district, are as much authorized as the construction of outlet ditches outside of the district.

In the case of cities and villages, although no express authority is given them to appropriate lands outside the corporate limits for local improvements, we have held that under their necessarily or fairly implied powers they may, when necessary to secure an outlet, extend sewers beyond the city lim

its, and that, of course, carries with it the power to acquire the land necessary. Shreve v. Town of Cicero, 129 Ill. 226, 21 N. E. 815; Cochran v. Village of Park Ridge, 138 Ill. 295, 27 N. E. 939; Maywood Co. v. Village of Maywood, 140 Ill. 216, 29 N. E. 704; Callon v. City of Jacksonville, 147 Ill. 113, 35 N. E. 223; City of Rockford v. Mower, 259 Ill. 604, 102 N. E. 1032. In Carr v. City of Athens, 304 Ill. 212, 136 N. E. 633, the court held that when it is necessary for a municipality to go beyond its corporate limits to obtain a water supply for fire protection and for the use of its inhabitants, or procure an outlet for a sewer to protect the public health, or the establishment of a pest house, it has the power to do so. In that case the court sustained the power of the city of Athens to construct and pay for a transmission line beyond the city limits to convey electric current purchased by the city from a corporation manufacturing electricity. We deem it unnecessary to refer to cases in other states deciding the same way.

sion of Rocky Run and Schuhart creeks, so as to carry around the district the waters brought down by them from the hills instead of emptying them in the district. The commissioners and engineer determined that was necessary to a complete reclamation of the lands in the district, and the county court approved the plans. This court cannot say the diversion channels were not necessary for that purpose.

[5] The question of the power of courts to deny the right to condemn land on the ground that the exercise of the right is unnecessary was discussed in Pittsburgh, Ft. Wayne & Chicago Railway Co. v. Sanitary District, 218 Ill. 286, 75 N. E. 892, 2 L. R. A. (N. S.) 226. The court said on page 290 (75 N. E. 894):

"The question whether it was necessary that the petitioner acquire title to the strip of land sought to be taken in order that the object of its organization might be effected was a legislative and not a judicial question, and was one to be determined by the trustees of the

Counsel for appellants argue that a city or sanitary district, and not by the court in which the condemnation proceeding was pending. The village has authority to exercise governmen- court in which such a petition is pending may tal powers and a drainage district has no rightfully determine whether the petitioner has such authority. Both kinds of corporations the power to exercise the right of eminent have the express and necessarily implied or domain; whether the property is subject to incidental powers to carry out the purposes the right of eminent domain and is being taken for which they are organized. The protec- for a public use; whether the power is being tion and drainage of the lands within a abused by the taking of an excessive amount of drainage district are the objects and purpos- do not involve a determination of the necesproperty, and other kindred questions which es of the organization of drainage districts. sity or the expediency of the taking of the lands It would be idle to authorize their organiza- sought to be condemned; but where the right tion unless they were permitted to exercise to condemn exists, and the property is subject powers necessary to effect the purposes for to the exercise of the right of eminent domain which they were organized. We are of opin- and is being condemned for a public use, and ion drainage districts, like cities and vil- the right to condemn is not being abused, the lages, have, in addition to the express pow-ground that the exercise of the power is uncourt cannot deny the right to condemn on the ers granted, implied power necessary to the complete protection and drainage of the land.

But we are not required to rest this decision upon the implied power of appellee to appropriate lands of others outside the district, for the statute expressly confers upon the commissioners the authority to do that when necessary to the protection and complete drainage of the lands. Appellee had the lawful power to take and damage the lands of appellants, if that was necessary to completely protect and drain the lands within the district.

It follows, from the cases referred to and what we have said in this opinion, appellee had the right to condemn appellants' lands, if required for the complete protection of the lands in the district, and, that being so, courts will not interfere with the exercise of the power to condemn the lands, except to prevent a clear abuse of it. The plan of the commissioners, which was approved by the court, provides for interior ditches and the construction of a pumping plant to get rid of surface and seepage water, and the diver

necessary or inexpedient, as the determination of that question devolves upon the legislative branch of the government, and is a question which the judicial branch of the government cannot determine. Smith v. Chicago & Western Indiana Railroad Co., 105 Ill. 511; Chicago & Eastern Illinois Railroad Co. v. Wiltse, 116 Ill. 449; Illinois Central Railroad Co. v. City of Chicago, 141 Ill. 586; Chicago & Alton Railroad Co. v. City of Pontiac, 169 Ill. 155."

In addition to the cases cited in support of that text, see, also, City of Winchester v. Ring, 312 Ill. 544, 144 N. E. 333, Pittsburg, Cincinnati, Chicago & St. Louis Railway Co. v. Gage, 280 Ill. 639, 117 N. E. 726, and County of Mercer v. Wolff, 237 Ill. 74, 86 N. E. 708.

Appellee made a prima facie case of necessity for condemning appellants' lands, and no evidence was offered by appellants to the contrary. Pittsburg, Cincinnati, Chicago & St. Louis Railway Co. v. Gage, supra.

We have not overlooked Ligare v. City of Chicago, 139 Ill. 46, 28 N. E. 934, 32 Am. St. Rep. 179, Chicago & Eastern Illinois Railroad Co. v. Wiltse, supra, and other cases

(148 N.E.)

cited by appellants. Those cases, and many | "within a reasonable time to be fixed by the others, hold the power of condemnation is court." What is a reasonable time must in harsh, against common right, and the grant some measure depend upon facts and cirof such power should be strictly construed, cumstances. In this case the payment must and when such power is attempted to be ex- be made out of a special assessment not yet ercised, courts will determine whether the confirmed. That will necessarily involve conpower exists and whether the use for which siderable delay. We know from observation it is sought to condemn land comes within that such proceedings are subject to delay the power delegated by the Legislature. and frequently are delayed by appeals. It Such cases are not in the slightest conflict was important that sufficient time should be with the other cases we have cited and with given for payment to afford the commissionthe view expressed in this opinion. ers a reasonable opportunity, in the exercise of diligence, to procure the money. When the time for payment has been once fixed by the court it cannot be subsequently changed or extended. La Salle County Electric Railway Co. v. Hill, 260 Ill. 621, 103 N. E. 624. We cannot say the time allowed for payment, in view of all the circumstances, is unreasonable. True, if the assessment proceedings are delayed by litigation it will not be the fault of appellants, as their land cannot be assessed, but until such time within the three years as appellee shall take possession appellants' possession will not be disturbed. We do not see how their right to sell or encumber the land will be materially affected, If they wish to convey it they can do so and confer upon the grantee the rights of the grantor in the condemnation judgment.

Appellants also contend that no sufficient effort was made by the drainage commissioners to agree with appellants upon compensation, and the proof was insufficient to support the allegations of the petition that the parties had been unable to agree. It is not denied the proof showed efforts were made by the commissioners to agree upon the compensation and they could not do so, but appellants contend the compensation attempted to be agreed upon was compensation for land' taken and for damages to land not taken, combined. We regard it as wholly unnecessary to review the evidence upon that question. It abundantly sustained the allegations of the petition, and the claim that proof of a failure to agree on compensation for land taken and damages to land not taken was insufficient is without merit.

Presumably appellants were awarded sufficient compensation for their lands taken and for damages to the lands not taken, for they have not preserved the evidence upon that question in the bill of exceptions and have assigned no errors on the amount awarded them by the verdict and judgment. The judgment is affirmed. Judgment affirmed.

[6] It is further contended there was a variance between the routes of the diversion channels as shown in the plans and order of court and as shown by the petition. The changes complained of were of slight character, and, as we understand it, affected only the lands of Burger, Clark, and Jacobs. The change on the Burger land was in slightly moving the ditch so as to avoid a public highway. On the Clark land a slight change was made to avoid making a right-angle turn where Schuhart creek comes out of the bluffs. The change as to Jacobs' land was DAVIS, Agent, v. KEYSTONE STEEL &

of a typographical error in description. There was no change in the line staked out and no substantial change of the location of the ditch. Appellants were not injured or prejudiced thereby. Such changes as were made the commissioners had a right to make. Reynolds v. Milk Grove Drainage District, 134 Ill. 268, 25 N. E. 516; People v. Board of Supervisors, 314 Ill. 256, 145 N. E. 337.

[7] It is also claimed the county cours

WIRE CO. (No. 16299.)

(317 Ill. 278)

(Supreme Court of Illinois. April 24, 1925.
Rehearing_Denied with Modification
June 11, 1925.)

1. Constitutional law 81-Owner of proper-
ty, devoted to use in which public has inter-
est, must submit to regulation for common
good.

Owner of property, devoted to use in which

erred in fixing the time for payment of the public has interest, must submit to regulation

for common good.

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2. Constitutional law 70(1)
charges fixed by Legislature not interfered
with by court, unless owner is thereby forced
to use his property for public benefit without
compensation.

compensation. By its judgment the county
court allowed appellee three years from the
date of the judgment to pay the compensa-
tion and damages. Appellants contend three
years is an unreasonable time and clouds
their title until the compensation is paid and
title vests in appellee, during which time the
right to sell or encumber the land is inter-
fered with. The statute authorizes the court
to order the compensation fixed to be paid just compensation.

Where maximum charge has been fixed by Legislature, court has nothing to do with question, unless statute attempts to force owner to use his property for public benefit without

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

100(1)-Strike cannot exempt

3. Commerce 8(12)-Hepburn Act excludes | 9. Carriers
power of state to regulate furnishing cars from payment of demurrage charges.
for interstate traffic.

Hepburn Act June 29, 1906, § 1, par. 27 (U. S. Comp. St. § 8563, par. 2), amending Interstate Commerce Act, § 1, par. 2, clearly declared intention of Congress to impose duty on carriers in respect to furnishing cars for interstate traffic, which excludes power of state over subject-matter.

1. Carriers 30-Demurrage charges held properly included in schedule filed with Interstate Commerce Commission and published.

Charge for demurrage is on same footing as any other charge in connection with transportation, and was properly included in schedule required to be filed with Interstate Commerce Commission and published under Hepburn Act June 29, 1906, § 2, pars. 1, 7 (U. S. Comp. St. § 8569, pars. 1, 7), amending Interstate Commerce Act, § 6, pars. 1, 7, and Federal Control Act March 21, 1918, § 10 (U. S. Comp. St. Ann. Supp. 1919, § 31153⁄4j).

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Parties to interstate shipment cannot by agreement alter schedule of tariffs filed with and approved by Interstate Commerce Commission under Hepburn Act June 29, 1906, § 2, pars. 1, 7 (U. S. Comp. St. § 8569, pars. 1, 7), amending Interstate Commerce Act, § 6, pars. 1, 7, and Federal Control Act March 21, 1918, § 10 (U. S. Comp. St. Ann. Supp. 1919, § 3115j), though agreement is in writing and is performed, and collection of less than schedule rate will not prevent recovery of shortage.

6. Commerce 48 Congress may adopt convenient as well as necessary means to regulate interstate commerce.

Power given Congress by Constitution to regulate interstate commerce is complete in itself, and as incident thereto Congress may adopt such means as are convenient, as well as those which are necessary to its exercise, and such means may have qualities of police regulations.

7. Carriers 26-Fixing of rates by Interstate Commerce Commission establishes that they are reasonable, and not discriminatory.

Fixing of rates by Interstate Commerce Commission establishes that they are reasonable, and not discriminatory.

8. Constitutional law 89(1), 298(2)-Fixing of rates by Interstate Commerce Commission is not unconstitutional interference with freedom to contract nor deprivation of property without due process.

Fixing of rates by Interstate Commerce Commission is not unconstitutional interference with liberty to contract nor deprivation of property without due process of law, but it is proper exercise of police power for prevention of unreasonable extortion and discriminatory rates, service, and preferences.

Under Hepburn Act June 29, 1906, § 2, par. (U. S. Comp. St. § 8569, par. 7), amending Interstate Commerce Act, § 6, par. 7, Act Aug. 29, 1916, § 1 (U. S. Comp. St. § 1974a), and Federal Control Act March 21, 1918, § 10 (U. S. Comp. St. Ann. Supp. 1919, § 3115j), consignee is not exempt from liability for demurrage charges for detention of cars because detention was caused by strike, regardless of whether demurrage accrued on interstate or intrastate shipment.

Appeal from Circuit Court, Peoria County; Charles V. Miles, Judge.

Action by James C. Davis, Agent of the United States Government, etc., against the Keystone Steel & Wire Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Tichenor, Todd, Wilson & Barnett, of Peoria, for appellant.

Miller, Elliott & Westervelt, of Peoria (Barnes, Magoon & Black, of Peoria, of counsel), for appellee.

DUNN, J. The defendant, the Keystone Steel & Wire Company, claiming that, by a judgment rendered against it by the circuit court of Peoria county, in favor of James C. Davis, Agent of the United States under the provisions of the Transportation Act of 1920 (U. S. Comp. St. Ann. Supp. 1923, § 100711⁄4 et seq.), for $18,930, demurrage on certain cars delivered to defendant between August 5 and October 10, 1919, it has been deprived of its property without due process of law, in violation of the Constitutions of the state of Illinois and of the United States, has appealed to this court.

The cause was heard by the court without a jury, upon the plea of the general issue and stipulation that any evidence showing a defense might be offered. The defense made by the evidence was that, on July 5, 1919, a strike of the defendant's employees was called, which, because of threats and intimidation, resulted on August 13 in depriving it of all of its employees, who usually numbered between 400 and 600 men, except the office employees and from 50 to 75 employees in the plant. On August 13 it undertook to increase its working force, but its efforts were frustrated by a mob, which by violence drove out its employees and took possession of its plant. The defendant sought protection from the sheriff and the state, but received none, and finally regained possession of its plant on October 2 by the assistance of the United States marshal, acting under a restraining order issued by the federal District Court. From August 13 to October 2 the defendant was prevented from unloading the cars delivered to it, except one car, which was unloaded on September

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

26.

(148 N.E.)

The demurrage charges which accrued places to excessive rates, to the great injury to October 2 amounted to $16,830. On Octo- of the trade, be it therefore enacted," etc. ber 3 the unloading of cars began and continued until October 17. During this time the demurrage charges accumulated to the amount of $2,100. The unloading was accomplished as fast as the defendant could get the men to do it.

Propositions of law were submitted to the court by the parties, and the court held, in substance, that it was the duty of the appellee to collect the demurrage charges in accordance with the tariffs in force and on file with the Interstate Commerce Commission and the Illinois Public Utilities Commission, that the defendant was bound to pay such charges, even though it had been prevented from unloading the cars by reason of a strike of its employees, and that a strike, where the strikers and mob took possession of the defendant's plant, and by threats and acts of violence and intimidation prevented it from carrying on its business and unloading cars delivered to it, did not relieve it from this liability. The contention of the appellant is that the duty to pay demurrage charges is one imposed by law, and is in the nature of a penalty not arising from any contract, and that the failure to admit its defense deprived it of its property without due process of law, and its whole argument is based on that proposition.

[2] An act of the General Assembly of Illinois, approved April 25, 1871 (Laws 1871-72, p. 762) fixed the maximum rate to be charged for the storage of grain in warehouses. An information for a violation of the act was filed in the criminal court of Cook county, and the defendants being convicted prosecuted a writ of error from this court, insisting that the statute violated the constitutional prohibitions against deprivation of liberty or property without due process of law, and against the taking of private property for public use without just compensation. The judgment was affirmed, the court holding that a law providing a maximum rate of charges did not violate either of the constitutional provisions in question. People, 69 Ill. 80. The case was then taken to the Supreme Court of the United States, which affirmed the judgment, holding that the statute did not violate the Fourteenth Amendment of the federal Constitution or any other provision of that instrument, and that the fixing of maximum rates is a legislative function. Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77. In Budd v. New York, 143 U. S. 517, 12 S. Ct. 468, 36 L. Ed. 247, the constitutionality of a somewhat similar statute of the state of New York, governed by the same principle, was sustained, the court

Munn v.

trine of the Munn Case that the Legislature
may fix a maximum fee, beyond which any
fee would be unreasonable, in respect to
services rendered in a public employment or
for the use of property in which the public
has an interest, but cannot compel the doing
of services without reward, or taking private
property for public use without just compen-
Where the
sation or due process of law.
maximum charge has been fixed by legisla-
tive authority, the court has nothing to do
with the question unless the lawmaking
power has attempted to force the owner to
use his property for public benefit without
just compensation.

[1] The charges of common carriers, keepers of ferries, wharfingers, innkeepers, hack-citing numerous cases as recognizing the docmen, and others whose business is affected with a public interest, have from time immemorial been subject to regulation by law, and the rates to be charged for their services have been fixed by statute. The owner of property which he has devoted to a use in which the whole public has a direct interest must submit to the regulation for the common good so long as he exercises the use. The public has a direct interest in all these occupations, for they are necessary to the public convenience and welfare. Every one has a right to make use of the services and enjoy the accommodations of those who are engaged in these employments, and every one is at times obliged to have the use of some of them. At common law persons engaged in these employments were allowed to charge such prices as they could agree upon with those dealing with them but not entirely at their own will. The rule was recognized that the charges for their services and accommodations must be reasonable and not arbitrary and excessive. This rule was the regulation at common law of rates charged for service. As to carriers it was early amended in England by statute (3 W. & M. c. 12, § 24), fixing rates, and following a preamble reciting:

"Whereas, divers wagoners and other carriers by combination amongst themselves have raised the prices of carriage of goods in many 148 N.E.-4

Moved by combinations and practices similar to those recited in the preamble to the statute of 3 W. & M. 200 years before, which has been referred to, and by other practices and devices, resulting not only in excessive rates but also in unjust discrimination between individuals and communities, Congress passed the act of February 4, 1887 (U. S. Comp. St. § 8563 et seq.), to regulate commerce, known as the Interstate Commerce Act, for the purpose of preventing interstate railroad carriers from charging unreasonable rates and from unjustly discriminating beNew York, tween persons and localities. New Haven & Hartford Railroad Co. v. Interstate Commerce Com., 200 U. S. 361, 26 S. Ct. 272, 50 L. Ed. 515. The railroads availed themselves of the weakness and cum

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