61 Ill. App. 435 | Ill. App. Ct. | 1895
delivered the opinion of the Court.
We are of the opinion that it sufficiently appears that appellee had necessity for a tile drain on his own land, for near a quarter of a mile, and that the fall was nothing on his land toward the main tile drain, but in that distance the fall was the other way about seven inches. This would show that, by carrying back of a fall the length of his proposed tile ditch, he could not give his tile grade from the upper end sufficient to drain his land without running out at the top of the ground before reaching the upper end; he would not have ample capacity, according to the original intention, for the drainage of the water from his land, comprising about seventy acres. Any one with but little experience would know that, from a reading of the evidence, which we think was clearly sufficient to support the verdict of the jury. The court ordered the issuing of a peremptory writ of mandamus, and ordered the appellants to repair and modify the drainage system within its district so as to provide an outlet of ample capacity, into which the lands of the said petitioner within said district, and in said petition described, might be drained, and appellee receive, as far as practicable, the protection and benefit to his land contemplated he should receive when the said district was organized, and the lands therein classified, and to take the necessary proceedings according to law to make a new tax levy to provide the necessary funds to make the repairs and modifications of the said drainage district as aforesaid, and awarded cost against the district. The section of the statute under which the relator claims the right to the relief sought is section 41, chapter 42, of the Farm Drainage Act, and is as follows: “After the completion of the work, the commissioners shall thereafter keep the same in repairs, and if they find by reason of error in locating or constructing the ditches, or any of them, or from other causes, the lands of the district are not drained or protected as contemplated, or some of them receive but partial or no benefit, they shall use the corporate funds-of the district to carry out the' original purpose, to the end that all the lands, so far as practicable, shall receive their proper and equal benefit, as contemplated when the lands were classified. If it be necessary to clear or enlarge natural or artificial channels lying beyond the boundaries of districts, to obtain a proper outlet, commissioners shall use the corporate funds,” etc., etc.; “provided, in all such cases, if sufficient funds are not on hand, the commissioners shall make a new tax levy.”
There appears to be no dispute between counsel of appellant and appellee as to the law of mandamus as a general principle, but the contention is, as to whether the statute in question confers a discretionary power upon the commissioners to make the changes contemplated by it, or whether they are required and commanded under the statute to make the changes, when the facts really exist calling for the changes contemplated. It is conceded by both sides, that if the section óf the statute in question leaves it a discretionary power with the commissioners whether or not they will act, then a writ of mandamus could not be issued. On the other hand, if it is not discretionary, then it should be. We are of opinion from a reading of the statute that it is the duty of the commissioners; that when the facts actually exist calling for their action that they have no discretion, but must proceed to act. The first clause of the statute requires the commissioners absolutely to-keep the work in repair. There is or can be no dispute as to their duty in that respect, nor do they have any discretion; they would not be authorized to say that they had adjudicated the matter and found there were no repairs needed. The second clause uses the words, “ if they find by reason of error in location or constructing the ditches or any of them, or from any other causes the lands of the .district are not drained or protected as contemplated,” etc., “ they shall use the corporate funds of the district to carry out the original purpose,” etc. We do not think that the word “find” in the. connection used is meant by the statute to give the commissioners a discretionary power to determine the facts mentioned, otherwise than the actual state of the facts; that when those facts are called to their attention and they see they are facts, or may see it, that they are. bound to act. They are charged with an imperative duty, on a condition and a case prescribed. Their discretion is not such, if they have any, as bars a mandamus. Cases cited, swpra.
We think that-the scope and-intention of the statute was to compel the commissioners to do equal justice to all the land owners in the district according to the intention of the original design in forming it, and that was the purpose of the passage of this section.
It is not intended by the statute, in our opinion, to leave it to the arbitrary discretion of the commissioners, as to whether they should carry out the designs of the petitioners in forming the district, but that they were compelled to act within the limit and scope of their office, as laid down by the statute. In the case at bar it seems plain enough, that appellee would not receive the benefits that it was intended he should receive when his land was classified and taxed, arising through the mistake of the surveyor, or from the fact he failed to take the levels when laying out the main ditch to appellee’s south boundary line.
Section 41 of the statute above named seems to be intended to meet just such a case as this. It is laid down by High on Extraordinary Legal Remedies, as follows: “ Hor does the fact that certain incidents and details of the work are left discretionary with the authorities as regards the manner of their execution render the duties less mandatory, or constitute a bar to relief by mandamus.” High Ex. Legal Rem., sections 413 and 415; Kline v. The People, 31 App. C. R. 302; People v. Commissioners of Highways, 32 App. C. R. 171; County of St. Clair v. The People, 85 Ill. 396; Brokaw v. Commissioners, 130 Ill. 482. In the latter case the commissioners were compelled to remove obstructions from a road in their town. Road commissioners, with the same propriety, as it is here contended, could say that they were the judges as to whether the highways needed repairs, and as to whether obstructions needed removal, but the courts hold the statute mandatory, and that they must keep the roads in repair, when actually needed, with discretion as to the mode. People v. The Supervisors of Macon County, 19 App. 269; 121 Ill. 616; County of St. Clair v. The People, supra.
We need not notice other questions raised by counsel in their arguments. In our opinion the verdict of the jury and the decision of the court were right. The judgment of the court below is therefore affirmed.
