delivered the opinion of the court:
The three drainage commissioners own, respectively, 900, 600 and 120 acres of land in the district, all of which, as we understand the record, was assessed both in the original and second assessments. Under a recent decision of this court these commissioners, being land owners in the district whose lands were subject to assessment, were incompetent to make such assessment. (Drainage District v. Smith, 233 Ill. 417.) The reasoning of the following authorities tends to support the conclusion reached in that case: Chase v. City of Evanston, 172 Ill. 403; Murr v. City of Naperville, 210 id. 371; Betts v. City of Naperville, 214 id. 380; Cooley’s Const. Lim.—7th ed.—pp. 592, 593; 1 Coke upon Littleton,—Butler & Hargraves’ notes—sec. 212.
Counsel for defendant in error cite and rely upon Scott v. People, 120 Ill. 129, and People v. Cooper, 139 id. 461. In both of these last mentioned cases the Farm Drainage act of 1885 (Hurd’s Stat. 1905, p. 799,) was under consideration, and not the Levee act. In both of these cases the question under consideration was whether the commissioners were competent to make the classification of lands when they were annexed to the district under section 42 of this act. If the finding of the commissioners on the classification was not satisfactory, an appeal under the Farm Drainage act could have been taken to the county court, where the classification would have been passed upon by a jury. It has been held that while the law secures a trial by jury upon .an appeal it is no violation of a constitutional provision securing that right, though such law may provide for a trial in the first instance without the intervention of a jury, for the party, if he thinks proper, may have the case tried by a jury before it is finally settled. (Stewart v. Mayor, 7 Md. 500.) The same line of reasoning would justify the holding of commissioners who are land owners competent to make the classification under the Farm Drainage act. In this case, as the law stood at the time this assessment was made under the Levee act, the decision of the commissioners on the hearing of objections as to the amount of an assessment was final.
As the case must be reversed and remanded for the reasons already stated, it is unnecessary to consider at length the other points raised. A brief mention of certain points, however, may be advisable as a guide to further proceedings.
This court has held that drainage commissioners have no power to create, in advance, an indebtedness for completing an improvement and then levy an assessment to meet it. Winkelmann v. Moredock and Ivy Landing Drainage District, 170 Ill. 37; Ahrens v. Minnie Creek Drainage District, id. 262; see, also, on this point, Fountain Head Drainage District v. Wright, 228 Ill. 208, and Drainage Comrs. v. Kinney, 233 id. 67.
Defendant in error argues that if some portion of the money raised in the original assessment for construction should be diverted and used to pay incidental expenses of the district, such as fees and charges of attorneys, engineers, surveyors, clerks and printers, such diversion would not affect the right of the commissioners to make valid contracts for construction to the full amount of the original assessment. With this contention we cannot agree. A fair construction of this act requires that in its practical enforcement such incidental expenses as attorneys’, engineers’, surveyors’ and commissioners’ fees must be incurred in the necessary preliminary work before the assessment is spread or levied, but must be'included in the original estimate and paid out of the original assessment. The estimate for such incidental expenses in these original proceedings was fixed at $3500. As we understand the record, such incidental expenses incurred in conducting and carrying on the work under the original assessment amount to several thousand dollars more than the $3500 originally estimated.
It is also argued by defendant in error that the twenty per cent kept back under the original contract for digging the ditch having been expended by the district for other purposes can be collected in this assessment. By this second assessment money can be raised only for the payment of future obligations and none can be assessed or raised for the purpose of paying obligations already incurred, except the incidental expenses necessary for the preliminary work in preparing, spreading and levying the additional or second assessment.
For the reasons stated the judgment of the county court must be reversed and the cause remanded for further proceedings in accordance with the views herein expressed.
Reversed and remanded.