delivered the opinion of the Court:
The first contention in the printed argument filed on behalf of appellants is, since the purpose of the formation of drainage districts is limited by the constitution (art. 4, sec. 3,) and by the statute (Laws 1885, p. 77, et seq.,) to “agricultural or sanitary purposes,” no lands can be assessed as specially benefited unless they shall be found to be benefited for agricultural or sanitary purposes. If by this it is intended that the lands benefited shall be directly devoted to the raising of agricultural crops or to sanitary uses, and that the benefits shall consist alone in improving the capacity to produce agricultural crops or the efficiency of the property for sanitary uses, it is manifestly too narrow, for this would exclude residences, out-buildings, yards, lands kept for timber, and all unimproved lands; and yet it is plain, that in the ordinary farm the residence, out-buildings, yards, and lands kept for timber, are, in a general sense, devoted to agriculture, for each is indispensable to the farmer in operating his farm; and the unimproved lands which are too wet to be devoted to the raising of crops, will,by being drained, be fitted therefor, and thus will be, literally, improved for agricultural purposes. So, too, it is obviously impossible to cultivate lands, save and market crops, procure family supplies, etc., in an agricultural community, without highways. They must be constantly used for agricultural purposes, and therefore when, by improvement, they are benefited, they are literally benefited for agricultural purposes, although it may be for other purposes also. On this principle, we held in Spear v. Drainage Commissioners, 113 Ill. 632, that on the trial of an appeal from the assessment of benefits to a party’s land by a proposed drainage, the j ury may take into consideration, not only the benefit to the party’s land assessed, by the drainage of the same, but also the benefit he may derive by the drainage of a slough which separates him from his other land, and thereby obviates the necessity of his bridging
the slough to reach such other land, and that there is no error in admitting evidence showing such additional benefit.
Moreover, we are of opinion that neither the constitution nor the statute requires that the benefits shall be for agricultural or sanitary purposes. They require that the districts shall be organized for those purposes, but the only limitation in respect to benefits is, that the drains, etc., shall be constructed and maintained by “special assessments upon the property benefited thereby,”—that is, benefited by constructing or maintaining the drain, etc. If a highway over marshy or swampy ground shall be drained, it will be improved, and the public will be benefited thereby. That will be done by the drainage district which it was the duty of the highway district to do, and therefore it imposes no burden upon the highway district that it shall be required to contribute, in proportion to the benefit thus received, for the improvement whereby it is produced, but, upon the contrary, it ratably distributes the cost of a public improvement in accordance with the spirit of our constitution. County of McLean v. City of Bloomington, 106 Ill. 209, and cases there cited; Chicago and Northwestern Railway Co. v. The People ex rel. 120 id. 104.
We have nothing to do with the question of the fact of benefit in the present case. If, in legal estimation, there may have been benefit to the highway for which compensation should be made, it is sufficient. The commissioners had jurisdiction to act, and if they erred, it should have been corrected in another form of proceeding. Keigwin v. Drainage Commissioners, 115 Ill. 347; Chicago and Northwestern Railway Co. v. The People ex rel. supra.
It is next contended, that there is no point or time when jurisdiction is obtained of commissioners of. highways. This is a misapprehension of the effect of the statute. Section 40 of the act approved June 27, 1885, provides, that “if, in the construction of said work, any public highway * * * will be benefited, the commissioners, may assess to such public road * * * such sum or sums as will be just and equitable for such public road * * * to pay, in proportion to the benefits received, which shall be determined by estimating the amount of benefits to the entire district, including the benefits to such * * * public road, and also the benefit to * * * the public road; then the fractional figures expressing the ratio between the sum of the benefits for the whole district, and the sum found to be the benefit to the * * * public road, shall express the proportional part of the corporate taxes of the district to be paid by such * * * public road. * * * Such proportional classification shall be subject to like review and appeals as is provided for individual land owners.” In order that “such proportional classification shall be subject to like review and appeals as is provided for individual land owners,” it would follow that those in charge of the public roads,—that is, the commissioners of highways,—(see 2 Starr & Curtis’ Stat. chap. 121, sec. 2,) must have the same notice as individual land owners,—and it is here alleged that such notice was given. Jurisdiction, therefore, was obtained when this notice was given.
Again, it is objected that there is no method for the classification of anything but lands. Lands are to be classified; but highways form a class of themselves, distinct from lands in general, and so when they are assessed pursuant to section 40, no other classification can be needed.
An objection is urged, based on Hundley v. Park Corwrs. 67 Ill. 559, that money raised by assessment in one township can not be° expended in another. That case can have no application here. There the assessments were made by two distinct municipal corporations, while here it is made by but one. corporation. For the purpose of any question now before us, no other municipal corporation than this drainage district has any interest in the collection or expenditure of this assessment, and its power to expend is co-extensive, territorially, with its power to assess and collect.
It has been suggested by some members of the court, in the consideration of this case, that it might be thought that Craw v. Village of Tolono et al. 96 Ill. 255, is opposed to the present judgment. To avoid any misapprehension that might otherwise arise in that respect, we deem it advisable to say that a majority of the court hold that the cases are, in principle, dissimilar. That was a suit against a natural person, and, upon a judgment rendered under the facts of that case, an execution would have issued which might have been levied upon any property of the defendant. This, however, is a suit against a municipal corporation, and upon the judgment rendered no execution can issue. The tax here sued for, though levied because of the ownership of certain property, is not a charge against that or any other specific property, but it is simply a charge against the municipality, to be paid from its revenues. The amount, says the statute, shall be paid out of the road and bridge tax of the town or district in which the public highway, or part benefited, lies. (Latter part of section 40 of act approved June 27, 1885.) Since we have held that this is a proper mode of distributing a public burthen, (Higgins v. Chicago, 18 Ill. 276, Scammon v. Chicago, 42 id. 192, County of McLean v. City of Bloomington, 106 id. 209,) it must follow that should payment not be made, the commissioners can be compelled, by mandamus, to make it. (City of Olney v. Harvey, 50 Ill. 453.) But before applying for mandamus there must be a judgment at law determining the amount due. The People ex rel. v. Board of Supervisors, 50 Ill. 213. See, also, County of McLean v. City of Bloomington, supra.
The transcript before us shows a judgment awarding execution, which we have seen is unauthorized. But it is a harmless error, for the reason that the commissioners have no property which can be seized and sold upon execution. That part of the judgment is a nullity, and it will be treated as stricken out, and the judgment, thus amended, is affirmed.
Judgment affirmed.
Mr. Justice Bailey, dissenting.