236 Ill. 124 | Ill. | 1908
delivered the opinion of the court:
Section 17 of the Farm Drainage act confers power upon the commissioners to determine upon a system of drainage which shall provide main outlets of ample capacity for the waters of the district. “Preference shall be given to tile drains whenever these will accomplish the purpose, and when open drains are deemed necessary, if it be practicable, these shall follow boundary lines, and parallels, or right angles, as the case, may be, provided the drainage shall not be impaired thereby.” (Hurd’s Stat. 1905, p. 804.) Section 76 of said act, under which this district was organized, provides that “these ditches, if open, shall be made tile drains when practicable.” Appellant’s principal contention is that the statute is mandatory upon the commissioners, and that they have no discretion in the der termination of whether an open ditch or a tile drain shall be used. It is undoubtedly njandatory on the commissioners to act on a petition, presented to them, in accordance with law, for the organization of a drainage district. The use of the words in section 17, that “preference shall be given to tile drains whenever these will accomplish the purpose,” and in section 76, “these ditches, if open, shall be made tile drains when practicable,” clearly recognizes that in some cases tile drains would not be practicable and therefore preference could not be given them. A number of things are to be considered in determining whether a tile drain is practicable or not, and these things are left to be determined by the drainage commissioners, and their decision, whether correct or erroneous, cannot be reviewed and controlled by a writ of mandamus unless it is shown they have acted fraudulently or corruptly. Certain rules of law governing the issuing of the writ of mandamus are well settled by the decisions of this court. It has been decided that the petitioner must show a clear legal right to the writ and that it will not be issued in cases where the right is doubtful or uncertain; also, that where the duty is imposed upon inferior officers to perform a specific act, in the performance of which they are not given the exercise of any discretion, the writ will generally lie, but where the performance of the duty depends upon the exercise of their judgment and discretion the writ will not lie to compel them to act in a particular manner, though if they refuse to act at all the writ will lie to compel them to act but not to control their decision. People v. Dental Examiners, 110 Ill. 180; County of St.Clair v. People, 85 id. 396; People v. Rose, 225 id. 496.
The case of Peotone Drainage District v. Adams, 163 Ill. 428, is not in conflict with the authorities above cited. In that case the ditch had been constructed before the petition was filed, and the claim of the petitioner was that it did- not afford him an outlet for the drainage of his land located within the district. It was shown by the evidence that the petitioner’s lands could not be drained by the ditch, and although he had been taxed for its construction he received no benefit from it. The court held that the provision of section 17 requiring commissioners to adopt a system of drainage “which shall provide main outlets of ample capacity for the waters of the district” was mandatory; and this seems clearly correct, for the power is conferred upon them and they are given no discretion whatever with reference to constructing ditches of sufficient capacity to carry the waters of the district. If the petition in this case is good, then the decision of the commissioners as to whether they should construct tile drains or open ditches would be subject to the control of the courts in every case, for the statute does not require tile drains in all cases, but only where it is practicable.
Appellant further contends that if the commissioners have a discretion in determining whether they will construct tile drains or open ditches, this petition shows such abuse of discretion as to amount to fraud, and that upon that theory the petition should be held sufficient. No facts are averred in the petition constituting fraud. We have set out in the preceding statement the allegations of the petition relied upon under this head. The general charge that a party acted fraudulently or was guilty of fraud is a statement of a conclusion but is not a good pleading. The facts should be averred upon which the charge of fraud is based. East St. Louis Connecting Railway Co. v. People, 119 Ill. 182; Smith v. Brittenham, 98 id. 188; Jones v. Albee, 70 id. 34; 9 Ency. of Pl. & Pr. 686.
The circuit court properly sustained the demurrer to the petition, and the judgment of the Appellate Court affirming the judgment of that court is affirmed.
Judgment affirmed.
