supports the verdict of the jury as to the benefits, other than annual benefits, which the right of way of plaintiff in error will sustain by the improvement which is being constructed by the drainage district.

A further objection is, that the commissioners could not assess annual benefits against the right of way of plaintiff in error. Section 2 of the Levee act (Hurd's Stat. 1911, p. 872,) enables owners, under certain conditions, to establish a drainage district for a "combined system of drainage or protection from overflow, independent of levees, for agricultural, sanitary or mining purposes and maintain the same by special assessments upon the property benefited thereby," etc. The petition under which this district was organized states specifically that it was to be established for the purpose of making "a combined system of drainage, independent of levees, for agricultural and sanitary purposes." Sections 17, 176 and 171⁄2 of the Levee act, as amended and in force May 29, 1909, specifically refer to assessments of the "annual amount" of benefits which may be levied for keeping the work of the district in repair. It is under the law as then amended that this assessment was levied. Section 17 provides, in part, that the drainage commissioners, after assessing the different tracts of land for the amount. of benefits and damages, “shall also, in cases where the district is not organized for a combined system of drainage independent of levees, make an assessment of the 'annual amount' of benefits which each tract will sustain by keeping said levees, ditches or other work in repair," etc. Section 176 contains provisions with reference to the jury examining the land and making the assessment of benefits and fixing the amount of damages to lands taken or damaged, and also provides that the jury shall ascertain "the ‘annual amount' of benefits which each tract will sustain by keeping said levees, ditches or other work in repair (in cases where the district is not organized for a combined system of drainage independent of levees,) and said jury shall make

out their verdict in which shall be set down in proper columns the names of the owners, * * * and the amount of benefits assessed, if any, and the amount of damages allowed, if any, against each tract, railroad, public highway, or municipal corporation; also, when required by this act, the amount of 'annual benefits,' if any, which each tract will sustain by keeping said levees, ditches or other work in repair." Section 37 of the act provides for the levying of an additional assessment if the first assessment is not sufficient to construct the work, and also provides for an additional assessment for maintaining or repairing the work of the district.

From the wording of sections 17, 17b and 172, in connection with the rest of the Levee act, we think the conclusion must be reached that an annual assessment for making repairs cannot be levied under this act when the district was organized for drainage purposes without the construction of levees, that is, that the annual assessments for keeping the work in repair can only be levied when the district is organized as a levee and drainage district, and not solely for agricultural, sanitary or drainage purposes independent of levees. This being so, the commissioners in this district, which was organized for a combined system of drainage independent of levees, were without authority to assess annual benefits against any of the property owners. The county court erred in confirming the annual assessments as thus levied.

The judgment is affirmed as to the chief or principal assessment of $10,000 but will be reversed as to the annual assessments, and the cause remanded to the county court, with directions to sustain the objection as to said annual

assessments.

Affirmed in part and reversed in part and remanded, with directions.

ARWIN E. PRICE, Appellant, vs. THE CITY OF Elgin,

Appellee.

Opinion filed December 17, 1912.

1. CONSTITUTIONAL LAW-when a statute does not deny a party equal protection of the laws. A statute does not deny to a party the equal protection of the laws unless he is thereby treated differently from others in the same situation.

2. SAME—what is not a violation of prohibition against taking private property for public use. One who voluntarily enters into a contract with a city to construct a local improvement for a specified sum, to be paid in accordance with the provisions of the Local Improvement act, including the provisions of sections 73 and 83 of said act, which are contained in the contract, cannot be said to be deprived of his property for public use without just compensation or without due process of law because the board of local improvements refuses to certify that the improvement has been completed in accordance with the ordinance.

3. SAME-Sections 73 and 83 of Local Improvement act do not require party to make contracts except at his own free will. Sections 73 and 83 of the Local Improvement act, relating to the terms upon which contracts for local improvements to be paid for by special assessment must be made, do not require anyone to enter into such contracts except at his own free will.

4. SPECIAL ASSESSMENTS-a contractor for a local improvement may resort to mandamus to secure his rights. A contractor for a local improvement may by mandamus or injunction compel a city to levy and collect a valid special assessment, and if the work has been completed under the direction and to the satisfaction of the board of local improvements, he may by mandamus compel the board to certify its acceptance of the work.

5. SAME when city is not liable at suit of contractor for local improvement. Where a contract for the construction of a local improvement contains the provisions of sections 73 and 83 of the Local Improvement act, the city is not liable for the contract price in an action on the case based upon the neglect and refusal of the board of local improvements to certify its acceptance of the improvement, as the city's only duty is to make and collect an assessment for the benefit of the contractor.

APPEAL from the Circuit Court of Kane county; the Hon. DUANE J. CARNES, Judge, presiding.

CHARLES H. FISHER, and ERNEST C. LUTHER, for appellant.

EUGENE CLIFFORD, for appellee.

Mr. JUSTICE CARTWRIGHT delivered the opinion of the

court:

The circuit court of Kane county sustained the general demurrer of the city of Elgin, appellee, to the declaration of Arwin E. Price, appellant, in this suit, brought in the form of an action on the case, by which appellant sought to recover from appellee $41,163.07, the contract price for paving Walnut avenue, in said city, with brick on a concrete foundation, and making a concrete curb and gutter. Appellant stood by his declaration and the court entered judgment against him. for costs. From that judgment an appeal was taken to this court on the ground that the validity of sections 73 and 83 of the Local Improvement act was involved.

The declaration contained six counts, all of which alleged the making of the contract between the plaintiff and defendant for making the improvement for an agreed consideration of $41,163.07, to be paid by special assessment, except $1976.30, which was to be paid by general taxation. Each count alleged that the plaintiff performed his contract and completed the improvement under the direction and to the satisfaction of the board of local improvements; that the special assessment to pay for the improvement was made and confirmed by the county court of Kane county, and that the defendant paid to plaintiff $725.66 in cash and issued and delivered to him forty-eight local improvement bonds, of $500 each, and three vouchers for $1424.78, in compliance with the terms of the contract. The first three counts alleged that the work done and improvement made by the plaintiff was accepted by the board of local improvements. The last three alleged that the board of local im

provements refused to accept the work and improvement, and all the counts alleged that said board neglected and refused to certify, in writing, the completion of, the work to the county court, in accordance with section 84 of the Local Improvement act, and that by reason of such neglect and disregard of duty by the board of local improvements the plaintiff was deprived of the sum due him under the terms of the contract.

The declaration set out the contract, by which the plaintiff agreed to be paid out of the special assessment levied for the work when the same should be collected, and that he should have or make no claim against the defendant except for the collection of the same. Section 73 of the Local Improvement act provides that no person taking any contract from a city and agreeing to be paid out of special assessments shall have any claim or lien upon the city in any event except from the collection of special assessments for the work contracted for, and imposes upon the city a duty to levy and collect an assessment or assessments to defray the cost of the work until the contractor shall be fully paid, and also gives to the contractor summary relief, by mandamus or injunction, to enforce the performance of the duty. Section 83 provides that all contracts made for local improvements must contain a provision that the work shall be done under the direction and to the satisfaction of the board of local improvements, and also express notice that in no case, except as otherwise provided in the ordinance or the judgment of the court, will said board or municipality or any officer be liable for any portion of the expenses nor for any delinquency of persons or property assessed. The contract also contained the provisions required by that section. Counsel for appellant assert that these sections of the Local Improvement act are invalid because their provisions violate the State and Federal constitutions by authorizing the taking and damaging of private property for public use without just compensa

257 - 5