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County court as provided in the act, and cannot be availed of on an application for sale of the land to pay a delinquent installment of assessment.

[Ed. Note.-For other cases, see Drains, Cent. Dig. 88 91-101; Dec. Dig. 89.]

2. DRAINS 89-ASSESSMENT-VALIDITY.

In a proceeding for installment of drainage assessments, where one objector had acquired title after the organization of the district and the original assessment, his deed containing a clause reciting that the grantee assumed to pay all drainage assessments, the first payment cannot be declared a lien resting on the agreement of the owner under the theory of a contract for the benefit of a third person, or of a personal liability constituting a lien on the land, but the proceeding being at law to enforce a lien against the property, whether this purchaser is under a personal liability is immaterial, and judgment can only be had against the land by showing that the taxes are legally levied, assessed, and charged.

[Ed. Note. For other cases, see Drains, Cent. Dig. 88 91-101; Dec. Dig. 89.]

3. DRAINS 89-ASSESSMENTS -EFFECT OF CONVEYANCE OF LAND ASSESSED.

No personal privilege was waived by the grantor in making the deed, and the grantee is not estopped to show the true amount of the lien or to introduce any competent evidence as to the value of the land.

[Ed. Note. For other cases, see Drains, Cent. Dig. 88 91-101; Dec. Dig. 89.]

4. DRAINS 89-ASSESSMENTS-CLASSIFICATION OF LANDS-REVIEW.

Although where classification of lands under the Farm Drainage Act is at a figure above zero they must be regarded as benefited, the amount of benefits is open to inquiry upon the collector's application for judgment and order of sale.

[Ed. Note. For other cases, see Drains, Cent. Dig. §§ 91-101; Dec. Dig. 89.] 5. DRAINS 89- PROCEEDINGS TO COLLECT DELINQUENT ASSESSMENTS.

In a proceeding for delinquent installments of drainage assessments, on the application for judgment the delinquent list filed by the collector is prima facie evidence that the lands will be benefited to the amount stated in the list, and it is not a sufficient defense to show that the property has not yet received that amount of benefits because of inadequacy of outlet, if it will receive them from the improvement when completed.

[Ed. Note. For other cases, see Drains, Cent. Dig. 88 91-101; Dec. Dig. 89.]

6. DRAINS 13 FARM DRAINAGE ACT CONSTRUCTION.

The provisions of the Farm Drainage Act, requiring drainage commissioners to provide outlets of ample capacity for the waters of the district are mandatory, and landowners who have been assessed for the purpose of constructing drains or ditches to drain their lands may compel the commissioners to deepen and widen the outlet so as to provide main outlets of ample capacity for the waters of the district.

[Ed. Note.-For other cases, see Drains, Cent. Dig. 4; Dec. Dig. 13.]

7. DRAINS 13 ASSESSMENTS STATUTE.

OUTLET

sary to clear and enlarge any natural or artificial channel lying beyond the district to complete an outlet, may use the corporate funds for this purpose, no limit being imposed by the statute or the Constitution on the distance to which a drainage district may go to secure an outlet, except as to expense, the commissioners the territory of another district, exercising ju of a drainage district had power to pass through risdiction over the ditch of that district to se cure a sufficient outlet at a point beyond. Dig. § 4; Dec. Dig. 13.] [Ed. Note.-For other cases, see Drains, Cent.

8. DRAINS 89-PROCEEDINGS FOR ASSESSMENT-DELINQUENT ASSESSMENT.

on

In a proceeding for a delinquent installment of drainage assessments, the burden was objectors to show that their lands would not be benefited to the extent of the assessment by the construction of the improvement.

[Ed. Note. For other cases, see Drains, Cent. Dig. §§ 91-101; Dec. Dig. 89.]

Appeal from Saline County Court; Charles D. Stillwell, Judge.

Application by the People, on the relation of P. L. Dorris, County Collector, against H. J. Garner and others, for judgment and order of sale for delinquent installments of assessments levied by a drainage district organized under the Farm Drainage Act. Judgment for relator, and defendants appeal. Reversed in part and remanded.

Kane & Wise, of Harrisburg, and George B. Gillespie, of Springfield, for appellants. Kraft, Kraft & Erskine, of Chicago, and W. F. Scott, of Harrisburg, for appellee.

DUNN, J. The Rector special drainage district of the counties of Saline and Hamilton was organized in the Saline county court in 1910 under the Farm Drainage Act, and a special assessment of $78,234.36 was levied on the lands of the district. This was afterward divided into installments, the first of which was due on January 1, 1914. At the June term of the county court of Saline county an application was made by the collector for a judgment and order of sale against certain lands in the district which were in default in the payment of this installment and interest. The judgment rendered in that case was brought to this court by appeal and reversed. People v. Garner, 267 Ill. 396, 108 N. E. 344. The remanding order was filed in the county court of Saline county and the cause was then consolidated with the application made by the county collector for judgment for the installment due January 1, 1915. The collector withdrew the applica

tion so far as the claim for interest was concerned.

[1] Two objections of a minor character were made, one of which was to the assessment of certain tracts by erroneous descriptions. Two tracts in a certain quarter section were assessed, one to T. E. Vickers by the description the north part of the northeast quarter of the northwest quarter of section 27, consisting of 13 acres; the other to

Under Farm Drainage Act, § 41 (Hurd's Rev. St. 1915-16, c. 42, § 116), providing that if the commissioners after completion of the work find that the lands of the district are not drained and protected as contemplated, or some of them received partial or no benefit, they shall use the corporate funds of the district to carry out the original purpose, and if neces- Joe Reeder by the description the south part

declared a lien because of the agreement of the owners. No personal privilege was walved by the grantor in making the deed, and the grantee is not estopped to show the true amount of the lien or to introduce any compe

of the northeast quarter of the northwest and charged upon the land. They cannot be quarter of section 27, consisting of 27 acres. It is conceded that these descriptions are legally sufficient to identify the land in the 40-acre tract and that they include all the land in the tract, but it is urged that the lands of the owners are not separately assess-tent evidence as to the value of the land. ed, as required by the statute, because the The main complaint of the appellants conland actually owned by T. E. Vickers consist- cerns the judgment upon their objection that ed of 13 acres lying north of Rector creek the assessment against their premises, reand the land owned by Reeder was the 27 spectively, is more than the premises have acres lying south of the creek. This creek been or will be benefited. Rector creek was was a very crooked stream running diagonal. a very crooked, sluggish stream running ly through the tract, so that the division of through the territory which was organized the tract into 13 acres off the north side and into the Rector special drainage district. 27 acres off the south side put a part of the The North Fork special drainage district land of each of the owners in each tract. of the counties of Hamilton and Saline was The classification of the lands by the commis-organized in the Hamilton county court about sioners was made by these descriptions, and the same time as the Rector district, the two the statute permitted any person who was districts being, in part, contiguous. The outlet dissatisfied to appear and object and to ap- of the Rector special drainage district was in peal from the decision of the commissioners Rector creek, on the boundary line between to the county court. The owners of the land the Rector district and the North Fork discould easily have had the mistake remedied trict. About 500 feet below this point, and if they had desired to do so. The classifi- within the boundaries of the North Fork discation and assessment were not void, and this trict, Rector creek emptied into North Fork objection cannot be availed of on an applica-creek. The Rector ditch was completed in tion for sale of the land to pay a delinquent 1912, and about a year later the North Fork installment.

ditch was completed. This ditch entered North Fork creek, and the North Fork special drainage district deepened, straightened and cleaned the North Fork creek for a distance of 14 miles below the mouth of Rector creek, and subsequently recovered a judgment against the Rector special drainage district for $6,852 for the latter district's just proportion of the expense of the construction of this main outlet ditch. North Fork creek was also a crooked, sluggish stream, with drifts and obstructions in it. The bottom of the North Fork ditch where it stops in North Fork creek is lower than the bottom of the creek. The lands of the objectors are all near the lower end of the Rector district. The ditches of both the Rector district and the North Fork district are straight and bring down the water from above very rapidly. The evidence tended to show that the water comes down very much more quickly in times of heavy rains than before the construction of these ditches; that the outlet through the North Fork creek is insufficient to carry the waters off in times of flood, and that they back up over the lower end of the Rector ditch and the lands of objectors and remain there longer than they did before the ditches were constructed. The evidence was contradictory, but the preponderance of that which was received indicated that owing to the insufficiency of the outlet the lands of objectors have not received the benefits which had been anticipated for them and are not now benefited to the amount of the assessment against them.

[2, 3] Objection was made by the people, and sustained, to the introduction of evidence by C. B. Garner, one of the objectors, as to the amount of the benefits to certain tracts, for the reason that he had purchased them after the organization of the district and the spreading of the original assessment. The deeds by which he acquired title contained a clause reciting that the grantee agreed to assume and pay all drainage taxes and assessments against the land. It is argued on behalf of the appellee that only the owner at the time of the assessment has the right to object to the amount of benefits, and such owner having conveyed the property subject to the assessment, which the purchaser assumed, the latter cannot object to the amount. Where property is subject to a lien which the purchaser assumes to pay, the purchase price is regarded as including the amount of the lien and the purchaser is bound to pay it as part of the purchase price. The cases cited in support of this proposition are cases in which a personal liability arising out of contract has been enforced under such circumstances against the purchaser in favor of the holder of the lien. Where one makes a contract with another for the benefit of a third person, the third person may maintain an action directly against the first on the contract made for his benefit. The present is not an action to enforce any liability arising out of contract. It is a proceeding at law to enforce a lien against the property. Whether the purchaser is under a personal liability to pay the amount claimed to be [4-7] The scheme of the Rector special a lien is immaterial. The people can only drainage district contemplated a system of have judgment against the land by showing drainage having its outlet in Rector creek, that the taxes are legally levied and assessed on the boundary of the district, and this

district to permit the upper district to use its outlet and enlarge the same, if necessary, upon paying compensation. Neither the statute nor the Constitution has imposed any limit on the distance to which a drainage district may go to secure an outlet, except that the expense must be within the limits of the benefits accruing to the lands of the district.

system was constructed. The appellants', no power to pass through the territory of lands received a figure of classification above the North Fork district for a distance of zero and must therefore be regarded as bene- one mile and three-quarters, exercising jurisfited, although the amount of such benefit isdiction over the ditch of that district, and open to inquiry upon the collector's applica- then continue beyond the territory of the tion for judgment and order of sale. People North Fork district and exercise jurisdicv. Soucy, 261 Ill. 108, 103 N. E. 570. On the tion over territory not contiguous to any of application for judgment the delinquent list the lands of the Rector district. This seems filed by the collector is prima facie evidence to be exactly what section 41 was intended to that the lands will be benefited to the amount authorize. Farm drainage districts are crestated in the list, and it is not enough to ated, by virtue of legislative authority, with show that the property has not yet received such powers as the Legislature grants and that amount of benefits. It is sufficient if must exercise their jurisdiction subject to the it will receive the benefits from the improve- terms of the law of their creation. The Legment when completed. Inadequacy of outlet islature has provided the manner in which is not sufficient to justify the refusal of the rights of upper and lower districts may judgment unless it appears that the outlet be exercised, and it does not contravene any cannot be made adequate for an amount constitutional limitation to require the lower equal to the benefits to the land affected. People v. Welch, 252 Ill. 167, 96 N. E. 991. The provisions of the Farm Drainage Act requiring drainage commissioners to provide outlets of ample capacity for the waters of the district are mandatory, and land owners who have been assessed for the purpose of constructing drains or ditches to drain their lands may compel the commissioners to deepen and widen the outlet so as to provide main outlets of ample capacity for the waters of the district. Peotone Drainage District v. Adams, 163 Ill. 428, 45 N. E. 266; Langan v. Milk's Grove Special Drainage District, 239 Ill. 430, 88 N. E. 182. The evidence tends to show that the completion of the work in the Rector special drainage district did not accomplish the results that were expected; that the outlet of the system of drainage had not the capacity to carry off with sufficient speed the quantities of water that were brought down with greater rapidity than before. For this reason the lands of the appellants have not received the benefits to which they are entitled. Section 41 of the Farm Drainage Act (Hurd's Rev. St. 191516, c. 42, § 116) was adopted to meet emergencies of this character. It provides that if the commissioners find, after the completion of the work, that for any cause the lands of the district are not drained or protected as contemplated, or some of them receive partial or no benefits, they shall use the corporate funds of the district to carry out the original purpose, and, if necessary to clear and enlarge any natural or artificial channel lying beyond the district to complete an outlet, may use the corporate funds for this purpose, and if necessary privileges cannot be obtained by agreement with the land owners or the commissioners, if the land or lands through which such outlet may be made are within another organized district, the commissioners may acquire the same by condemnation, provided, in all such cases, if sufficient funds are not on hand the commissioners shall make a new tax levy.

It is insisted on the part of appellants that the commissioners of the Rector district have

[8] The burden was on the appellants to show that their lands would not be benefited to the extent of the assessment by the construction of the improvement. They have not sustained that burden. They have shown that their lands are not now benefited, but the evidence does not justify the conclusion that a sufficient outlet, which the drainage district can be compelled to furnish, will not benefit the lands to the amount of the assessment.

The appellants rely on the case of Clear Creek Drainage & Levee District v. St. Louis, Iron Mountain & Southern Railway Co., 264 Ill. 640, 106 N. E. 490, for the proposition that the commissioners have no power, and cannot be compelled by mandamus, to construct an outlet through the lands of an adjoining district. That case was not an application for judgment and order of sale for nonpayment of an assessment, but was an application for confirmation of an assessment made by a drainage district organized under the Levee Act. The plans for the improvement made no provision for any outlet, but relied upon an outlet being thereafter constructed by another adjoining district, though such adjoining district had not acquired the right of way for such outlet, no assessment roll had been, filed for its construction, and there was no agreement between the commissioners of the two districts as to the terms for the construction and use of such outlet. The work which was proposed to be done by the Clear Creek drainage district, and which was provided for, was the construction of a levee across the mouth of a creek, without any provision for an outlet for carrying away the water. The confirmation was denied on the well-known principle that an assessment for

benefits can only be made on proof that the [and prevent its being established or maintained work proposed and provided for will specially benefit the property, and that an assessment cannot legally be made for an improvement which contemplates subsequent work for which no provision is made, but which is dependent on the future action of public

authorities.

ises, nor is he deprived of the proceeds of the

property sold.

within a year. Held that, as the keeping of a bawdyhouse was a nuisance at common law and an offense against public morals, the law is not invalid as depriving those maintaining such resorts, of their property without due process of law, for the state, under its police power to enreasonably necessary for the accomplishment of join bawdyhouses, may adopt any means that are the purpose and not unduly oppressive on the inThe judgment will be affirmed except as to dividual, and the owner will not, if he gives sethe southwest quarter of the northeast quar-curity, be deprived of the possession of the premter, the west half of the southeast quarter, the southeast quarter of the southeast quarter, the northeast quarter of the southwest quarter, the east half of the northwest quarter of the southwest quarter, and all that part of the south half of the northwest quarter lying south of the Rector special drainage district ditch, all in section 27, town 7, south, range 7, east (the tracts as to which the evidence offered was rejected), and as to those tracts the judgment will be reversed, and the cause remanded.

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STATUTES-VALIDITY.

Laws 1915, p. 371, declaring all buildings, apartments, and places, and fixtures and movable contents, used for purposes of lewdness or prostitution, to be public nuisances, and authorizing the state's attorney or any citizen in the county to maintain a bill in equity in the name of the people to perpetually enjoin all persons from maintaining or permitting such nuisances, and to abate the same, is valid, despite objections that property owners not residents of the county were deprived of the benefit of the act; for a court of equity has jurisdiction to enjoin the maintenance of a public nuisance though it be punishable by indictment, and it is within the constitutional power of the Legislature to designate the agency to set the law in motion on behalf of the public.

[Ed. Note.-For other cases, see Nuisance, Cent. Dig. § 137; Dec. Dig. 60.] 3. CONSTITUTIONAL LAW 303 ENJOINING MAINTENANCE-STATUTES-DUE PROCESS.

[Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 863-866; Dec. Dig. 303.]

Appeal from Circuit Court, Cook County; Jesse A. Baldwin, Judge.

el P. Thrasher, against Dave Smith and Bill by the People, on the relation of SamuFrom decree for complainant, defendants appeal. Affirmed.

others.

Rudolph Frankenstein and Maurice J. Slater, both of Chicago, for appellants. Sims, Welch & Godman, of Chicago (Elwood G. Godman and Daniel J. Ward, both of Chicago, of counsel), for appellee.

DUNN, J. This is an appeal by the defendants from a decree of the circuit court of Cook county overruling their demurrer to a bill in equity filed under the provisions of the act approved June 22, 1915, entitled:

"An act regarding places used for purposes of lewdness, assignation, or prostitution, to declare the same to be public nuisances, and to provide for the more effectual suppression thereof." Laws of 1915, p. 371.

[1, 2] It is unnecessary to set forth the allegations of the bill, for no claim is made that they are not sufficient to comply with the terms of the act, but the appellants' contentions are that the statute is unconsitutional and void as class legislation; that it deprives the appellants of their property without due process of law; that it attempts to confer upon a private citizen the duties of the state's attorney and the Attorney General; and that the act attempts to prevent the commission of a criminal offense by injunction.

The bill was not filed by the state's attorney or the Attorney General, but upon the relation of a private citizen of Cook county, under the authority of section 2 of the act. Section 1 declares all buildings, apartments, and places, and the fixtures and movable contents thereof, used for purposes of lewdness, Laws 1915, p. 371, declaring that all build- assignation, or prostitution, to be public ings, apartments, and places and the fixtures nuisances, and section 2 authorizes the state's and movable contents thereof used for purposes attorney, or any citizen of the county in of assignation or prostitution are public nuisances, and maintenance thereof may be enjoin- which such a nuisance exists, toed, also authorizes the court upon enjoining the "maintain a bill in equity, in the name of the nuisance to order that the building, apartments, people of the state of Illinois, perpetually to enand premises shall remain in the custody of the join all persons from maintaining or permitting court and be kept closed by the sheriff for one such nuisance, and to abate the same, and to enyear, the sheriff to remove all fixtures and mov- join the use of such building or apartment, or able property, sell it, and after payment of costs such place for any purpose, for a period of one pay over the proceeds to the owner. There are year: * * * Provided, that no such injuncprovisions allowing the owner to retain posses- tion shall issue, except on behalf of an owner or sion upon giving security to abate the nuisance agent, unless it be made to appear to the satis

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

faction of the court that the owner or agent of such building or apartment or of such place, knew or had been personally served with a notice signed by the petitioner."

The appellants contend that in extending the right to maintain the bill to citizens of the county only many residents of the county who are not citizens, and many property owners who are neither residents nor citizens of the county, are deprived of the benefit of the bill. The jurisdiction of a court of equity to enjoin the maintenance of a public nuisance at the suit of the Attorney General or state's attorney, even though such maintenance may be punishable by indictment, cannot be doubted, and is recognized in Stead v. Fortner, 255 Ill. 468, 99 N. E. 680, and People v. Clark, 268 Ill. 156, 108 N. E. 994. The action is one affecting the public welfare, and it is within the constitutional power of the Legislature to designate the agency to set the law in motion on behalf of the public. Carleton v. Rugg, 149 Mass. 550, 22 N. E. 55, 5 L. R. A. 193, 14 Am. St. Rep. 446; Littleton v. Fritz, 65 Iowa, 488, 22 N. W. 641, 54 Am. Rep. 19; Ex parte Allison, 48 Tex. Cr. R. 634, 90 S. W. 492, 3 L. R. A. (N. S.) 622, 13 Ann. Cas. 684.

[3] The decree restrained the appellants from maintaining, using, or permitting the use of the premises for the purpose of lewdness, assignation, or prostitution, and from using the building, apartments, and premises for any purpose for one year from the date of the decree, and ordered that the building, apartments, and premises should remain in the custody of the court while the decree remained in effect. It was further ordered that the sheriff should remove all fixtures and movable property used in conducting the nuisance and sell them at public sale, as provided by law, and that he should close the premises and keep them closed for the period of one year. These latter provisions of the decree were authorized by the terms of section 5 of the statute, and it is insisted that the appellants were thereby deprived of their property without due process of law.

and the proceeds, after the payment of costs, paid to the owner. The deprivation of the use of the property for one year as security against the continuance or renewal of the nuisance is not an unreasonable means to that end, in view of the fact that such deprivation is not absolute. The owner may be at once restored to the possession if he will give security, in a reasonable amount, to abate the nuisance immediately and prevent its being established or maintained within a year. No injunction can issue and no order to close the place can be enforced against an owner who has in good faith endeavored to prevent the nuisance.

Under the police power the state may interfere whenever the public interest demands it, and a large discretion is vested in the Legislature to determine not only what the interests of the public require, but what measures are necessary for the protection of such interests, the only restriction being that the interest of the public, in general, requires such interference, and that the means are reasonably necessary to the accomplishment of the purpose, and not unduly oppressive upon individuals. Lawton v. Steele, 152 U. S. 133, 14 Sup. Ct. 499, 38 L. Ed. 385; Durand v. Dyson, 271 Ill. 382, 111 N. E. 143. Since the use of a building, and the furniture in it, for the purpose mentioned in the statute, may properly be declared a nuisance, the Legislature has authority to abate such nuisance and to adopt any means reasonably adapted to prevent its recurrence in the future which are not unduly oppressive. Deprivation of the possession and use of the property is certainly adapted to the purpose. It is not unduly oppressive under There is no summary the circumstances. Provision is made for notice proceeding. and hearing, and only in case of a willful violation of the law can the injunction be granted and the possession be taken from the owner in order to make the injunction effectual.

An effort in good faith to abate the nuisance will prevent a decree to close the place, and even after decree reasonable and prevent its establishment or maintenance security to immediately abate the nuisance within a period of one year will cause a vacation of the decree. These results may of prostitution or permitting one to be kept, all be easily avoided by not keeping a house and it cannot be regarded as unduly oppressive upon one who has willfully kept or permitted such a house to require him, after a judicial determination of that fact, to give security for the discontinuance of the nui

The act was an exercise of the police power of the state, passed in the interest of the public welfare, for the preservation of good order and public morals. The keeping of a bawdyhouse was a nuisance at common law. The Legislature did not exceed its powers in declaring, as it did in the first section, all places, and the property therein, used for the purposes mentioned to be public nuisances. The contention of the appellants is that the nuisance is not in the property it-sance long enough to assure the permanence self, but in the manner in which it is used, and that the unlawful use may be prevented without the confiscation or destruction of the property itself. The statute does not undertake to confiscate or destroy property. The personal property is required to be sold

of its abatement before he shall be permitted to again occupy and use the property within a year. Such a requirement does not deprive him of his property without due process of law.

Decree affirmed.

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