dissenting:
I am unable to concur in the view that the provisions of the statute conferring authority upon drainage commissioners who are owners of land in the district subject to assessment, to act in making the assessment of benefits, are in conflict with the constitution and therefore invalid. In Scott v. People, 120 Ill. 129, the right of the commissioners to pass upon the question of the enlargement of the drainage district was attacked by property owners on the ground that it would be submitting the question to be determined to an interested tribunal. The court held this contention unsound, and said in many instances such a situation was unavoidable. Property owners in municipalities sitting as jurors in suits against the municipality, and county and township officers making up and auditing their own accounts for services to the public, were cited as instances where an interested person may properly pass upon questions in which he is to some extent interested. ,1 am not aware of the right of a property owner to hold and discharge the duties of the office of assessor ever having been questioned on the ground that being a property owner disqualified him.
In People v. Cooper, 139 Ill. 461, the action of the commissioners annexing territory to an already organized dis7 trict was attacked. One of the grounds upon which the action of the commissioners was claimed to be invalid was, that they were interested and therefore disqualified to act. They were residents and land owners in the district. JThe court said (p. 496) : “It is not the rule, however, so far as we are aware, that interest as a land owner or tax-payer in a municipal or quasi municipal corporation disqualifies a person for holding office in such municipality or for performing any duty incident to such office, although his own personal or pecuniary interest "may to some extent be affected by his action. And this must be especially true in case of drainage districts, which are organized for the promotion of the private interests of the land owners within such districts.”
Briggs v. Drainage District, 140 Ill. 53, was an appeal from a judgment confirming an assessment made by the commissioners for extending, continuing, deepening, straightening and widening ditches and for additional work in a district previously organized. It was contended the commissioners had no power to make the assessment,—that it could only be made by a jury. This court held that a complete answer to that position was that the statute authorized the commissioners to make the assessment, and said (p. 56) : “Here the court ordered the assessment to be made by the commissioners of the district, and so far as appears the assessment was made in strict conformity to the statute,- and unless the statute is in conflict with some provision of the constitution it must be sustained. No provision of the constitution has been pointed out in the argument which prohibits the legislature from enacting a law authorizing an assessment of this character to be made by commissioners, and we are aware of no such provision.”
Trigger v. Drainage District, 193 Ill. 230, was an appeal by a land owner from the judgment of the county court confirming the assessment made by the commissioners. One of the grounds urged for reversal by the appellant was, that the commissioners who made the assessment heard and determined the objections thereto, and that she was therefore deprived of her constitutional right to a trial by jury. This court said (p. 233) : “We have held that the Drainage law, under which the proceeding was had, especially authorizes the assessment of benefits to be made by the drainage commissioners when the county court so orders or directs, and that that statute is not in conflict with the constitution guaranteeing the right to jury trials.” After quoting the paragraph above set out from the Briggs case the opinion proceeds: “It is clear from the several sections of the act under which this proceeding was had, that the county court may, in the first instance, order the assessment of benefits to be made either by a jury or by the commissioners, and that whichever body is ordered to make the assessment must hear and determine objections filed to such assessment. '(McCaleb v. Coon Run Drainage District, 190 Ill. 549.) The county court had no power to grant the motion of counsel for the objector to empanel a special jury to hear the issues formed on the objections. If evils or hardships result from the statute, the remedy is in the legislature and not with the courts.”
I am not unmindful that some of the cases referred to arose under the Farm Drainage act, and that in none of them, except People v. Cooper, does it appear from the opinion that the, commissioners were land owners in the district; but if the principles and rules of law announced in those cases are correct,, then it appears to me the conclusion reached by the court in this case is erroneous. It is true that allowing commissioners to sit in review upon an assessment made by them, when it is objected to by a.property owner, may not be a wise provision, but this objection will not be remedied by depriving commissioners who are land owners in the district of the power to make the. assessment. This evil, if it be an evil, will exist in as great a degree if the assessment, is made by a jury or by commissioners who own no land in the district, for the body that makes the assessment must hear and determine the objections to it. In my opinion the evils resulting from commissioners owning lands in the district having power to make the assessment are so small and the benefits from it so great, that the statute giving them power to act in that respect should not be declared invalid unless clearly in conflict with the constitution. In the Briggs case this court said it knew of no constitutional provision that was violated by an act authorizing the commissioners to make the assessment. While it does not appear from the opinion in that case whether the commissioners owned land in the district, no distinction is made on that account, and no intimation is found in the opinion that the broad assertion that such a statute violated no constitutional provision was intended to be limited or restricted to a certain class of commissioners. It appears to me the rules applicable to the determination of the constitutionality of statutes, and the cases referred to, furnish sufficient authority to justify sustaining the statute conferring power on the commissioners who may also be land owners in the district to make the assessment of benefits. Holding a statute authorizing this to be done is in violation of the constitution, and therefore invalid, is to seriously impair one of the most valuable provisions of the act, and this should not be done unless required by precedent or the rules of construction, and I think neither requires it in. this case.