garded as a matter of public concern. In fact, it was, in 1878, deemed by the people of the state to be of such public importance as to justify an amendment of the constitution of the state, wherein it was provided (by the amendment then made to section 31 of article 4 of the constitution of 1870) that the general assembly may provide for the organization of drainage districts, and vest the corporate authorities thereof with power to construct and maintain levees, drains, and ditches, and to keep in repair all drains, ditches, and levees theretofore constructed under the laws of this state, by special assessment upon the property benefited thereby. The act under which appellee was organized was passed in conformity with the provisions of this constitutional amendment. It will be noted that both the amendment and the act required that the objects to be effectuated by the drainage districts contemplated by them were to be accomplished with funds raised "by special assessment upon the property benefited thereby." The power to make special assessments is referable to and included within the taxing power: 2 Dillon on Municipal Corporations, sec. 596; Cooley on Taxation, 430; White v. People, 94 Ill. 604; Allen v. Drew, 44 Vt. 175. And one of the requisites of lawful taxation is, that the purpose for which contributions are demanded shall be public in their nature. Even the owner of the land benefited cannot be taxed to improve it, unless public considerations are involved, but must be left to improve it or not, as he may choose: 6 Am. & Eng. Ency. of Law, 10; Loan Ass'n v. Topeka, 20 Wall. 655; People v. Supervisors, 26 Mich. 22.

By the act under which appellee was organized, it was required, as a condition precedent to such organization, that a majority in number of the adult owners of lands lying in the proposed district, and who should also be the owners, in the aggregate, of more than one third of the lands in such district, should petition for its formation. It is insisted that for this reason the formation of the district was the voluntary affirmative act of the land-owners, and that its organization was for their benefit, and that therefore the corporation is, in its character and aims, essentially a private corporation, and in no sense a corporation in invitum. It would seem to be of the essence of a private corporation aggregate, that it is formed by the voluntary agreement of all its members, and that no person can be forced to become a member or stockholder therein nolens volens. In the drainage district a bare majority

in number of the adult land-owners can compel all the landowners who are minors, and the minority of adult landowners, to become members of the corporation, and subject them to all the corporate burdens, against their will. So, also, the owners of lands which are barely more than one third of the aggregate lands in such district can make the owners of almost two thirds of such aggregate lands involuntary members, and render their property liable for assessments. To impose an additional burden upon such unwilling corporators, upon the express ground they are voluntary members of the district, is akin to irony. As matter of course, the organization is in part for the benefit of the land-owners in the district; for the special assessments which may be made are limited to the property actually benefited, and further limited the extent of such benefits; but, as we have already seen, there is also a public benefit, and that it is only by virtue of the drainage being a matter of public importance that the involuntary land-owner can be taxed for the improvement. The conclusion must be, that a drainage district formed under the statute in force July 1, 1879, is not a private corporation, but is a public corporation.

In Commissioners v. Kelsey, 120 Ill. 482, and in other cases, it has been held that drainage districts are to be classed as municipal corporations. It is manifest, however, that they are not municipal corporations proper, nor do we regard them as analogous to such corporations. In the case of an incorporated city, a perfect obligation is imposed by the law, and powers and means, full, ample, and adequate for the discharge of such duty, are given. A drainage district, however, is organized merely for a special and limited purpose. Its powers are restricted to such as the legislature has deemed essential for the accomplishment of such purpose, and it is only au thorized to raise funds for the specific object for which it is formed, and can do that in no other mode than by special assessments upon the property benefited, which can in no case exceed the benefits to the lands assessed. No funds or means are furnished such district with which to pay damages occasioned to individuals by the tortious or unauthorized acts of the drainage commissioners, and there is no express statutory requirement that it shall be liable for such torts. The duty, then, which was incumbent upon appellee, to protect the lands of appellant through which its ditches passed from inundation, was a duty of imperfect obligation, and one for the

breach of which no action for damages lies against the district. The act under which appellee is organized is a general law, and applicable alike to all parts of the state, and under its provisions drainage districts may everywhere be formed. Appellee is to be regarded as a mere public involuntary quasi corporation, and the well-established and uniform doctrine is, that there is no corporate liability to respond in damages to an individual injured by the negligent or wrongful act of its officers, agents, or servants.

It is urged that it is provided in the bill of rights contained in the constitution of 1870, that private property shall not be taken or damaged for public use without just compensation. The act of 1879 makes provision for a jury trial, before a jury of disinterested freeholders, to ascertain the value of the land taken, and all damages consequent upon the construction of the proposed work, and also for the procurement by the drainage commissioners of releases in writing of the right of way, "which shall be a perpetual bar to all claims for damages by the grantor or grantors, or their assigns, on account of the construction of such work." Allowances for right of way and damages are required by the act to be paid or tendered to the land-owners before the commissioners are authorized to enter upon the land for the construction of any work thereon, and the amounts thus paid are a part of the entire cost of the work which is assessed upon the lands in the district. Adequate provision is therefore made for just compensation for all private property taken or damaged for public use. Since nothing is alleged by appellant to the contrary, it must be presumed that he was fully compensated for his lands taken for the ditch, and paid all damages consequent upon its construction for the purposes originally contemplated. If, however, by the enlargement of the district, an additional burden of water was precipitated upon his lands, to his detriment, it would seem that prior to the discharge of such additional water upon the lands the damages consequent upon such enlargement should have been assessed by a jury and paid by the district: Indianapolis etc. R. R. Co. v. Hartley, 67 Ill. 439; 16 Am. Rep. 624; Board of Trade Tel. Co. v. Barnett, 107 Ill. 507; 47 Am. Rep. 453. But in respect to the damages claimed in the declaration, they were either caused by the tortious act of the drainage commissioners in discharging the new and additional waters, which were not had in contemplation in the original assessment of damages

against the district, upon the premises of appellant, or occasioned by negliger.ce or misconduct on the part of the commissioners, and the remedy must be personally against the commissioners. It would, as we have already seen, be inconsistent with the fixed rules of law to hold the district liable for the consequences of the illegal acts of such commissioners.

We find no error in the record. The judgment of the appellate court is affirmed.

LIABILITY OF PRIVATE CORPORATIONS FOR TORTS. - See note to Orr v. Bank of United States, 13 Am. Dec. 596-598; note to Williams v. Planters' Ins. Co., 34 Am. Rep. 495-499; Dunn v. Agricultural Soc., 46 Ohio St. 93; 15 Am. St. Rep. 556, and note; Bauman v. Pere Marquette etc. Co., 66 Mich. 544; Thomas v. Musical etc. Union, 121 N. Y. 45.

FOR

MUNICIPAL CORPORATIONS QUASI CORPORATIONS-LIABILITY NEGLIGENCE. For a discussion of the distinction made between municipal corporations proper, and towns and other quasi corporations, as to their liability to private actions for injuries caused by their negligence, see extended note to Browning v. Springfield, 63 Am. Dec. 350-355. Compare also Kansas City v. Bradbury, 45 Kan. 381; 23 Am. St. Rep. 731, and note; Bates v. Rutland, 62 Vt. 178; 22 Am. St. Rep. 95, and note; Edgerly v. Concord, 62 N. H. 8; 13 Am. St. Rep. 533, and note; Moffitt v. Asheville, 103 N. C. 237; 14 Am. St. Rep. 810; Downing v. Mason County, 87 Ky. 208; 12 Am. St. Rep. 473, and note; Fry v. Albemarle County, 86 Va. 195; 19 Am. St. Rep. 879, and note; Dosdall v. Olmstead County, 30 Minn. 96; 44 Am. Rep. 185; Commissioners v. Martin, 4 Mich. 557; 69 Am. Dec. 333. Counties can be sued for damages only when such suits are authorized by statute: Monroe County v. Flynt, 80 Ga. 489; Grant County v. Lake County, 17 Or. 453; Lee County v. Yarbrough, 85 Ala. 590. Towns are not liable for damages caused by the wrongful acts of its officers or agents: Brown v. Guyandotte, 34 W. Va. 299.

QUASI CORPORATIONS, WHAT ARE, AND THEIR LIABILITY FOR TORTS: See note to Todd v. Birdsall, 13 Am. Dec. 525.

DRAINAGE - EMINENT DOMAIN. -The right to condemn land for drains rests upon the same foundation as the right of condemnation in cases of public roads, mills, railroads, school-houses, etc: Norfleet v. Cromwell, 70 N. C. 634; 16 Am. Rep. 787.

AN. ST. REP., VOL. XXV.-24

KUTTNER V. HAINES.

[135 ILLINOIS, 382.]

-

BILL OF REVIEW-CONDITIONS PRECEDENT to Relief. A person seeking to reverse a former decree for error of law appearing on its face must have performed it before filing a bill of review; as, if it be for land, the possession must be given up; and if for money, it must be paid; or if there are circumstances bringing him within the exceptions to the general rule, he must show them to the court, and obtain an order relieving him from performance before filing the bill.

BILL OF REVIEW - PERFORMANCE OF DECREE AS WAIVER. - The delivery of the possession of a house on leased premises, in obedience to a decree, will not operate as a waiver of homestead rights, or as a release of errors of law, nor will it deprive the party of the right to contest the validity of the decree by suing out a bill of review. On the other hand, obedience to the decree is necessary before the bill can be sued out.

BILL OF REVIEW IS NOT SUFFICIENT which only sets out a synopsis of the former bill or answer, but the bill, answer, replication, and decree must be set out. These constitute the record for the inspection of the court.

Rufus King, for the plaintiff in error.

S. Whipple Gehr, for the defendant in error.

CRAIG, J. This was a bill of review, brought by Kate T. Kuttner, to review and reverse a decree rendered in the superior court of Cook County in favor of Charles H. Haines, against her, on the sixth day of July, 1888.

Kate T. Kuttner, prior to the rendition of the decree sought to be reviewed, was the lessee of Haines of three lots in Chicago, under two ground-leases. Lots 25 and 26, upon which the lessee had erected a two-story frame dwelling, were embraced in one lease, and lot 44, upon which the lessee had erected a one-story brick store, was embraced in the other lease. In the month of March, 1888, Haines filed a bill in equity in the superior court, to enforce against the buildings on the leased premises the liens created by the terms of the leases, for unpaid rent and taxes. The bill charged two years' default in the payment of rent under the leases, and non-payment of taxes for the same time; that the lessee had forfeited the leases, and that the lessor had declared each of the leases determined and forfeited, and served a written notice of forfeiture on the lessee. The bill prayed that the complainant be decreed to have a lien on the buildings on the lots, that an account be had, and that the buildings should be sold to pay the rents and taxes due the complainant. An answer was put into the bill, to which a replication was filed.i The cause was referred to the master, to ascertain the amount