county, as aforesaid. The board then took | islature of 1907-08, and the amendments a recess until November 28, 1910. Approved this 28th day of November, 1910. Geo. F. Clark, Chairman. Attest: J. E. Rea, County Clerk. thereto, commonly known as the drainage It He further sets out resolution of the board of county commissioners of July 3, 1911, wherein the board recognizes the validity of the assessment of benefits made to Lincoln county and the provision made by said resolution toward the payment of said assessment, and the further resolution of said board, providing for the issuance of negotiable special assessment warrants with coupons attached in the aggregate sum of $134,000, to provide the ready funds to pay said sum. He alleges that they refuse to issue said warrants or to build said bridges. The county commissioners filed a demurrer to the petition and alternative writ of mandamus. Plaintiffs filed a demurrer to the answer and return of the drainage commissioner. Upon a hearing of the issues thus raised, the court sustained each of said demurrers; and a peremptory writ of mandamus was issued against the county commissioners, as ex officio commissioners of Deep Fork drainage district No. 1, and plaintiff in error, as drainage coming bridges of the character and dimensions missioner, requiring them to meet and proceed to let the contract for the construction of said forty-eight bridges. From this judgment plaintiff in error prosecutes error to this court. of the bridges required to be built across said drainage ditch in question upon the public highways is upon the county commissioners under §§ 7581 and 7609, Rev. Laws 1910, which sections read: There is no question raised on this ap- "7581. All bridges, culverts and roads peal relative to the necessity of the con- shall be at least 14 feet wide, and all struction of said bridges, but all parties bridges and culverts not more than 20 feet seem to agree that they are indispensable. in length shall be under the control and The sole question for determination is as supervision of the board of highway comto whether said bridges should be con- missioners of such township and the road structed by the county commissioners at the supervisor in whose district such bridge or expense of and in behalf of the county, or culvert is situated, and all bridges more by the drainage commissioners and at the than 20 feet long shall be under the control expense of said district. By stipulation and supervision of the board of county comfiled in this court, the case-made has been missioners. Said bridges to be built by the amended by attaching a true transcript of county commissioners at such places as may all the proceedings had before the county be necessary for the public convenience. In commissioners relative to said drainage dis- addition to the compensation already altrict. We presume this is done in order lowed by law, the county commissioners that the court may determine the question shall receive $3 for each day actually and on the merits, and finally fix the liability necessarily spent in overseeing bridge work: of building these bridges. A proper de- Provided, that no commissioners shall retermination of the question presented receive pay for such work for more than sixty quires the consideration and construction days in any one year." of several provisions of the act of the leg "7609. The board of county commission ers shall provide all roads improved, under | public bridges become a part of the public the provisions of this article, with suitable highways, and the public highways are in bridges of a permanent and substantial character and shall keep and maintain same in repairs." the exclusive charge and control of the county officials and must be erected by general tax; and this section puts the burden of constructing such bridges upon the county. We are also of the opinion that the bridges referred to in this section are a different class from those referred to in § 3050, Comp. Laws 1909. Taking the context of said § 3050, it is reasonably clear that the bridges referred to there are mainly for the use and benefit of the owners of the lands situated in said district. The language used (referring to the viewers) is: "They shall specify the manner and time in which the improvements shall be made and completed, the number of flood gates, waterways, farm crossings, bridges, and the dimensions thereof, and note the county and township lines and railroad crossings." It is the contention of plaintiff in error that under § 3069, Comp. Laws 1909, it is likewise the duty of the county commissioners to construct the bridges in question. This section provides: "The commissioners may, when the same is necessary for public health, convenience and welfare, cause to be constructed or enlarged, any bridge or culvert made necessary by the crossing of any drain constructed under the provisions of this act: Provided, however, that when such bridge or culvert shall belong to any corporation other than the county, the county clerk shall give such corporation notice by delivering to its agent the order of the commissioners declaring the necessity for constructing or enlarging such bridge or culvert, and a failure to construct or enlarge such bridge or culvert within the time specified, shall be deemed as a refusal to do said work, and thereon the commissioners shall proceed to let the work of constructing or enlarging the same and assess the corporation with the cost there-provements to be constructed at the expense of, and the county clerk shall place such assessment on the tax book against said corporation . . . to be collected as taxes. Before the commissioners shall let such work they shall give to the agent of the said corporation at least twenty days' actual notice of the time and place of letting such work." In other words, this language, properly construed, would mean the number of flood gates, waterways, farm crossings, and "farm bridges" and dimensions thereof. This section clearly contemplates that these are im of the drainage district, and to become a part of the drainage system, and of special benefit to each landowner within the district, and are not public utilities. The drainage law does not provide anywhere the character, material, size in length or width, nor the location of such bridges. The language of the court in the case of Rigney v. Fischer, 113 Ind. 313, 15 N. E. 594, is applicable here: "Without further extending this opinion, our conclusion is that appellee, as the drainage commissioner, has no authority to determine the necessity for the bridge, nor the sort of bridge, if one is necessary, that should be built, and has no fund that he can use in the erection of the bridge; in short, that he has no authority to erect the bridge. Those questions must now be settled, and the bridge be built, if built at all, by some person or body authorized to do so by the statutes." Construing § 3069, supra, as a whole and in connection with §§ 7581 and 7609, Rev. Laws 1910, supra, relating to the same subject, we are clearly of the opinion that the commissioners referred to therein are the county commissioners, and that the bridges provided for are to be constructed on behalf of and at the expense of the county, except where benefits are assessed to a county, it may offset the amount due for benefits by the cost of erecting necessary bridges. This section clearly contemplates that the bridges, other than are owned by any private corporation, shall belong to the county. Also, this section provides only for It is also his contention that the viewers the construction or repair of such bridges, and appraisers assessed benefits to be dewhen it is made necessary for the public rived from the construction of this ditch health, convenience, and welfare. There is against Lincoln county in the sum of $134,no reference made in this section to the re- 550, and damages by reason of the construcpair or construction of bridges when neces- tion of these bridges in the sum of $81,930, sary for the drainage district or for the and that said county, through its officials, convenience of the people in said district, elected to build these bridges and offset the but only when necessary for the general amount of expense against the amount of public health, convenience, and welfare. In benefits assessed, and that said county is other words, this section contemplates that now liable under the law by reason of such said bridges are to be built for the use and proceedings and judgment of the commisbenefit of the general public, in that all' sioners. The jurisdiction and authority Said commissioners are given exclusive jurisdiction to hear and determine all contests and objections to the creation of such conferred upon the county commissioners | Palmer, 74 N. Y. 183, 189, 30 Am. Rep. in the organization and proceedings in the 289; Remsen v. Wheeler, 105 N. Y. 573, construction of a drainage ditch are very | 12 N. E. 564.” broad and sweeping. There can be no question about the power to assess benefits to the county wherein the viewers and appraisers find that the county will be bene-district, and all matters pertaining to same, fited by reason of the construction of such ditch and the draining of public highways. Part of § 3046, Comp. Laws 1909, provides: "The benefits to the county as a body politic and which might be assessed under this act against the county where improvements are formed, in districts formed wholly within any county, shall be prorated between the counties in their proportion to the benefits derived to the counties respectively and shall be paid from the public funds of each such county." And again, § 3056, id., provides: "When any drain established under the provisions of this act, drains, either in whole or in part, or benefits any public or corporate road or railroad, the viewers shall apportion to the county or state road, or if a corporate road or railroad, to the person or company owning, operating or controlling the same, the same proportion of the cost of location and construction of the improvement in proportion to the benefits received as to private individuals." (Italics ours.) It will be seen that the commissioners in their supervisory control over the acts of the viewers and appraisers had the same jurisdiction and authority to assess and approve benefits to the county as to an individual; and when the assessment was made and confirmed, if no appeal was taken within twenty days, the order confirming such assessment became final, equivalent to a judgment of such board, and would not be subject to a collateral attack. Certain powers conferred upon said commissioners are quasi judicial. The determination of the viewers, when affirmed by the county commissioners, is a quasi judicial proceeding and, unless appealed from, is final. In the case of Sears v. Street Comrs. 173 Mass. 350, 53 N. E. 876, it is said: "It is well established that the determination of the amount of taxes for special benefits to real estate by any tribunal to which the legislature delegates the power is a quasi judicial proceeding which cannot take final effect unless persons to be assessed have an opportunity to be heard. New London Northern R. Co. v. Boston & A. R. Co. 102 Mass. 386; Parsons v. District of Columbia, 170 U. S. 45, 52, 54, 42 L. ed. 943, 946, 947, 18 Sup. Ct. Rep. 521; Hagar v. Reclamation Dist. 111 U. S. 701, 709, 28 L. ed. 569, 572, 4 Sup. Ct. Rep. 663; Fallbrook Irrig. Dist. v. Bradley, 164 U. S. 112, 175, 41 L. ed. 369, 394, 17 Sup. Ct. Rep. 56; Stuart v. and have exclusive jurisdiction in all subsequent proceedings, except such as is conferred upon the drainage commissioner after the completion of the ditch. They are given power to adjourn the hearing on any matter from day to day, and all judgments rendered by said commissioners in relation thereto are final, except when appealed from to the district court. There is no claim that the county failed to receive sufficient notice of all proceedings had, or that there are any defects by reason thereof. Under the broad powers vested in the commissioners, we are of the opinion that their acts in approving the assessment of benefits to the county and in assessing damages in favor of the county to the amount of the cost of the bridges, and the resolution on the 19th day of November, 1910, supra, are valid and binding upon the county. The resolution, fairly construed, was an election on the part of the county to offset the benefits assessed to the amount of the cost price of the bridges. There was no appeal taken from the action of the commissioners in any of these matters, and such action must be held to be conclusive on the county. If the judgments of the commissioners are not conclusive on the county, then they are not conclusive on any of the other parties, in that the commissioners had the same jurisdiction over the county as it had over the other parties before them, and was specifically authorized to make the assessments of benefits and damages to the same extent as if all were individuals. The county was authorized to elect, the same as an individual, if it would offset the damages assessed against the benefits, and, having elected, is now topped to revoke its action in such matter to the prejudice of the drainage district and others interested. es Section 17 of the act, being § 2981, Rev. Laws 1910, in part provides: "Should any person interested in land appropriated or damaged by the proposed drain or other improvements fail to file their written exceptions to the report of the viewers as hereinbefore provided, they shall be deemed to have acquiesced in any such award and shall forever be estopped from prosecuting any action to vacate or avoid the same." And § 3057, Comp. Laws 1909, in regard to appeals, provides: "Any person aggrieved may appeal from the order of the commissioners, and upon such appeal there may be determined either or any of the following questions: First, whether just compensation has been allowed for property appropriated; and, second, whether proper damages have been allowed for property prejudicially affected by the improvements; third, and whether the property for which an appeal is prayed has been assessed more than it will be benefited, or more than its proportionate share of the cost of the improvements." Section 3053, id., in part provides: "If the commissioners shall find that due notice has been given, they shall examine the report of the surveyor and viewers, and if it shall appear that the assessments of the cost of location and construction and of damages and benefits to each tract are correct, and that the apportionment of the costs of location and construction, is in proportion to the benefits and damages of each tract, fair and just, the same shall be approved and confirmed. . . ." under any circumstances, would apply to a drainage district, constructed under the statute, is not necessary to decide; but we do hold it has no application to the case at bar. If all the parties affected, or who expected to be benefited by the cutting of a drainage ditch, should be directly instrumental in initiating proceedings for that purpose, and proceed to organize and construct such a ditch, without reference to any benefits to the public generally, and should construct said ditch across highways, probably in such an instance such persons, corporation, or drainage district might be required to repair the highways so damaged in crossing. It is clear, under the drainage laws and the Constitution, no assessments can be made upon any land on any principle other than that of corresponding benefits received. The undertaking here was a gigantic one, of vast magnitude, and from the great area of country it will drain, we might be justified in inferring that it will be of immeasurable benefit to the general public, even if there were no finding to that effect in the record. One of the prerequisites to the right of making this improvement was a finding that it would be necessary for the "public health, convenience, and welfare" of all, and that it would not be of special benefit to any Then it is provided in said section that in case the commissioners find that the improvements so reported are unjust or erroneous, they may, by an order of record, amend the report upon evidence. The subject-matter certainly was within the authority of the commissioners, and the law specifically gives to the commission authority to adjourn from day to day on the hear-particular class, or specific property. This ing of reports and exceptions, and to make such orders as may be necessary in the let ting of the contract and the assessment of damages and benefits. The statute also specifically authorizes the offsetting of benefits by damages assessed, and this applies as well to the county as to individuals; and in our opinion, the commissioners had the authority to confirm and approve the finding of the viewers in assessing benefits against the county in the amount found, and also in assessing the damage for the construction of the bridges, and that the county had a right, acting through its commissioners, to elect whether or not it would construct said bridges. It having elected, its action should be held final. alone should be sufficient reason to make the common-law rule inapplicable. No doubt the larger per cent of the property owners, without their consent, are required to contribute to pay the expense of such improvements, on the theory that they are public utilities and beneficial to the public health, etc., and for specific benefits received equal to the assessments. Under our Constitution, arbitrary assessments can only be made in payment of expense of constructing a drainage ditch when the benefits received are in proportion to the assessments made, and that such improvement is a public utility, or is made in the interest of public health. When such improvements are made in the interest of the The contention that counsel make, to the public welfare, and without regard to speeffect that it was the duty of the drainage cial benefits conferred, the property of citidistrict, under the common law, to con- zens can be taken only after just compenstruct these bridges, is not tenable. We rec- sation paid therefor, and the expense of ognize the common-law rule, to the effect such improvements must be paid by a genthat where a corporation or other person or eral tax upon all people affected. People company crosses a public highway, it must ex rel. Coon Run Drainage & Levee Dist. be done with as little damage to the high- v. Nortrup, 232 Ill. 303, 83 N. E. 843; way as possible, and that it is the legal Cuming County v. Bancroft Drainage Dist. duty of such person or company to con- 90 Neb. 81, 132 N. W. 927. It is shown struct bridges or culverts and make such from the record, and is conclusive, so far other repairs as may be necessary to re- as this proceeding is concerned, that the place said highway in a reasonably safe county received benefits to the public roads condition at the expense of such person of $134,550 by reason of this contemplated crossing same. Whether or not this rule, improvement. To this extent, the property ceived by such land, and an assessment upon a tract of land in excess of the benefits received is void as to such excess." In 10 Am. & Eng. Enc. Law, 2d ed. 230, it is stated: "The general rule is well settled that a special assessment for the purpose of drainage can be levied only upon property benefited by the proposed drainage, and the amount of such assessment must not exceed the benefit to be derived by the land assessed." owners within the district would receive no direct benefit to their property. In other words, every other resident of the county will receive the same benefit by the drainage of the public roads as will the property owners living within the district; and it would be neither right nor legal that the few residing within the district should be compelled to pay the expense for benefits received by the public generally. The bridges required are for the benefit of the general public, and special assessments can- It was said in the case of Norwood v. not legally be made to pay the expense of Baker, 172 U. S. 269, 43 L. ed. 443, 19 Sup. constructing same. The expense of build- Ct. Rep. 187, by Mr. Justice Harlan, speaking said bridges is a subject of general ing for the court: "In our judgment, the taxation. Sears v. Street Comrs. 173 Mass. exaction from the owner of private prop350, 53 N. E. 876; Hammett v. Philadel- erty of the cost of a public improvement in phia, 65 Pa. 146, 3 Am. Rep. 615; Re substantial excess of the special benefits acWashington Ave. 69 Pa. 352, 8 Am. Rep. cruing to him is, to the extent of such ex255; Williamsport's Appeal, 187 Pa. 565, cess, a taking, under the guise of taxation, 41 Atl. 476; Dietz v. Neenah, 91 Wis. 422, of private property for public use without 64 N. W. 299, 65 N. W. 500; Dyar v. Far- compensation. We say 'substantial excess,' mington, 70 Me. 527; Hanscom v. Omaha, because exact equality of taxation is not 11 Neb. 37, 7 N. W. 739; Erie v. Russell, always attainable, and for that reason the 148 Pa. 384, 23 Atl. 1102. To hold other- excess of cost over special benefits, unless wise would be in direct violation of § 24, it be of a material character, ought not to article 2, of the Constitution, in that it be regarded by a court of equity when its would be taking private property for a pub-aid is invoked to restrain the enforcement lic use, to the extent, at least, of the amount of the assessments of benefits to the public highways, amounting approximately to one sixth of the total value of the improvements. Page and Jones on Taxation by Assessment, § 449, lay down the following rule: "Authority to assess for the construction of a system of drains does not include authority to assess for the construction of a bridge at a point where a large drain crosses a highway." In 14 Cyc. 1025, it is stated: "Under the various constitutional provisions and acts conferring power upon local authorities to establish drains, it must be shown that such drain is necessary and conducive to public health, convenience, or welfare, or of public benefit or utility" (citing cases from Indiana, Michigan, Ohio, Oregon, Wisconsin, and New York). Page 1059, id.: "In the assessments of benefits in drainage proceedings, the landowner should not be charged with general benefits which accrue to him as a member of the community, but only with such as are special. The benefits for which an assessment may be made must relate to the betterment of the land for the purposes to which it may reasonably be put, and lands not benefited are not subject to assessment." Page 1061, id.: "The general rule is that the expense of construction of a drain cannot be assessed against particular lands to an amount in excess of the benefits re of a special assessment." It is suggested that the county commissioners cannot be compelled to build said bridges, for the reason it would be in violation of § 26, art. 10, of the Constitution. This same objection, no doubt, could be urged, and properly so, against the enforcement of the collection of the amount of benefits assessed to the county in the sum of $134,550, yet if said apportionment and assessment are legal, and they appear to be such, under § 3067, Comp. Laws 1909, it is made the duty of said county to pay said amount of benefits assessed in cash, or in time warrants, as it may elect. We have no authority, and it is not our purpose, to require the county commissioners to attempt to violate the provision of the Constitution, but have the authority to require such commissioners to meet in the manner provided by law and take such proceedings as may be necessary, in compliance with law, toward the erection of such number of bridges across the drainage ditch in question upon the public highways as the public good, convenience, and accommodation may require. It follows that the judgment of the trial court must be reversed, with direction to vacate and set aside same, and to enter a judgment requiring the county commissioners to convene immediately and proceed to take such steps as may be necessary in the manner provided by law, toward letting contracts for the erection of such bridges across Deep Fork drainage ditch No. 1, of |