delivered the opinion of the court:
It is evident from the statement, which precedes this g opinion, that the questions of damages to lands taken, were ignored by the commissioners in making the assessments. The objectors offered to show, on the hearing before the commissioners, in support of their objections, that they had lands, which were taken, and also lands that were damaged but not taken, but the trial court refused to allow the proofs so offered to be made, and entered an order overruling the objections, which raised the point.
The proceedings, however, show that land, belonging to the appellant, Juvinall, was taken for the construction of the proposed ditch. The plat upon its face shows, that the ditch ran north and south across the land, marked with the name of Martha Juvinall, and belonging to her. Although the commissioners took an oath to make assessments of damages and benefits, they seem to have considered benefits alone. The ditch, extending across the land of the appellant, Juvinall, was five feet wide at the bottom and seventeen feet at the top, and extended across two tracts of eighty acres each lying north and south of each other, and across a tract of one hundred and sixty acres lying south of both of the eighty-acre tracts. It is clear, therefore, that a portion of the land, belonging to appellant, Juvinall, seventeen feet wide at the top and five feet wide at the bottom, was taken for the purpose of constructing the drain or ditch in question. There is nothing in the evidence to show, so far as our attention has been called to it, what the value of the strip of land thus taken for the improvement was. Inasmuch, however, as the land embraced in the strip was actually taken, the commissioners must have deducted the value of the land taken from the benefits to be derived from the improvement, in order to reach the amounts which they assessed as benefits; or they assessed benefits without taking into consideration at all the value of the land taken.
By the assignment of errors, the order, confirming the assessment, is attacked on several grounds, namely, the unconstitutionality of the statute; the void description of the boundary lines Of the district; the want of an order directing the commissioners to ma'ke an assessment; and the failure to consider damages, as well as benefits. We deem it necessary only to consider the first and last of these grounds of attack, to-wit, the unconstitutionality of the statute, arid the failure to consider damages, as well as benefits.
Section 16 of the Drainage act, above referred to, provides, among- other things, as follows: “And thereupon the court shall empanel a jury of twelve men, having the qualifications of jurors in courts of record; or may, as provided by section 37 of this act, direct that the assessment of benefits herein named shall be made by the commissioners of said district.” (2 Starr & Curt. Ann. Stat.— 2d ed.—p. 1508). Section 37 provides, among other things, as follows: “Provided, that when the right of way of the proposed ditches, drains or other work within any district has been released by the owners of the lands, over which the same is located, or when the owners of the lands in such district, about to be assessed, agree thereto, or in case the court so orders, the commissioners of said district may make any assessments of benefits, or damages and benefits, in lieu of a jury; and all the proceedings required of a jury in such cases by this act, shall be required of and observed by the commissioners as near as may be in making such assessments.” (Ibid. pp. 1519, 1520).
In the case at bar, the order, entered at the December term, 1902, of the county court, was made in pursuance of the foregoing provision in section 37, and directed that the commissioners “in lieu of a jury, shall proceed to lay out, make and construct aforesaid ditch in accordance with the statutes in such cases made and provided." We regard that portion of section 37, which confers upon the commissioners the power to assess damages for land taken, in lieu of a jury, as clearly unconstitutional.
Section 13 of article 2 of the constitution of 1870 provides as follows: “Private property shall not be taken or damaged for public use without just compensation. Such compensation, when not made by the State, shall be ascertained by a jury, as shall be prescribed by law.” We have held that corporations existing for drainage purposes are public corporations, and that, where land is sought to be taken for the purpose of a ditch, it is for a public purpose, and compensation must be made before land of an individual can be taken for such public use. (Payson v. People, 175 Ill. 267, and cases there cited). It clearly appears from this record that a portion of the land of the appellant, Juvinall, has been taken for the purpose of constructing this drain or ditch, apparently without any compensation to her, unless in the form of benefits, and that such compensation, if awarded at all, has been fixed or awarded by three commissioners, instead of by a jury. The language of the constitution is clear and imperative, that not only shall private property not be taken or damaged for public use without just compensation, but that compensation, when not made by the State, shall be ascertained by a jury. Here, if it was ascertained at all, it was not ascertained by a jury, but by three commissioners, who had no power under the constitution to act in the matter of fixing such compensation.
We have recently held in the case of Wabash Railroad Co. v. Drainage District, 194 Ill. 310, that the sections of this act of May 29, 1879, which attempt to provide for the assessment of damages by a jury, are unconstitutional, as not designating for that purpose such a jury" as is contemplated by the organic law. In the case of Wabash Railroad Co. v. Drainage District, supra, we held that the body of men, brought together in the mode prescribed by section 16 of the Levee act, did not constitute a legal jury; that the course of proceeding directed by section 17 of the act to be pursued in determining compensation was not such judicial ascertainment of such compensation, as was contemplated by the constitutional provisions bearing on the subject; that such section is, in that respect, in violation of the constitution, and inoperative and void; and that the provisions of sections 20 and 21 of the act, granting- the property owner the right to appear before the jury and object to their report, did not secure to such o.wner a fair and impartial judicial ascertainment of the just compensation to be paid for his property, that was to be appropriated to the uses of the drainage district. Surely, if the jury, provided for by the above mentioned sections of the act, do not constitute such a legal jury as was contemplated by the constitution, and if those sections were for that reason unconstitutional, then section 37, which ignores altogether the empaneling of a jury, - and provides for action by the commissioners of the district, is also unconstitutional.
It will not do to say, that damages for the land taken were offset against the benefits, and deducted from the benefits. We have held that, under the constitution, the compensation to be paid to the owner for private property must be in money alone, disregarding all benefits to the portion of the land not taken, and that it is not within the power of the legislature to disregard this provision, and to take property without compensation, or to provide for paying it in benefits. (Ginn v. Moultrie Drainage District, 188 Ill. 305; McCaleb v. Coon Run Drainage District, 190 id. 555). In Ginn v. Moultrie Drainage District, supra, we said; “The entry upon land and the construction of a ditch for drainage purposes constitute, in law, a taking and appropriation of a perpetual easement and interest in the land, which is protected from invasion even as against the owner of the land. The same rules for ascertaining the damages, which prevail in proceedings for the condemnation of private property for public use, apply to cases arising under the drainage statute. (Chronic v. Pugh, 136 Ill. 539.) * * * No benefits can be set'off against compensation for land actually taken.” In the Ginn case we held that “corporations, organized for drainage purposes, cannot take private property for constructing any drainage ditch without making compensation to the owner of such property in money, and not in benefits.”
The provision of the statute here under consideration ignores the right of the property owner to a trial by jury.
Counsel for appellee seem to anticipate fatal consequences to drainage districts already organized, if this statute, providing for action by commissioners instead of a jury, is held to be unconstitutional. No such result can follow, because, unless the property owner files an objection setting forth specifically the denial of the right to a trial by jury, the right is waived, and the judgment of confirmation is conclusive. (McCaleb v. Coon Run Drainage District, supra).
We are of the opinion that the county court erred in not sustaining the objections based upon the unconstitutionality of the statute, and the failure to consider damages as well as benefits.
In what is here said we have only considered the questions raised and discussed as applicable to the lands of the appellant, Martha Juvinall, inasmuch as the other appellant, S. B. Deamude, has dismissed his appeal to this court.
For the reasons above stated, the judgment of the county court is reversed, and the cause is remanded to that court for further proceedings in accordance with the views herein expressed.
Reversed and remanded.