FIFTH ANNUAL YEAR BOOK — PART VI. 509 



of paving, or for the construction of sewers in cities, or it negotiates bonds 

 and pays with warrants. The certificates may either be sold or issued to 

 the contractor from time to time as the work progresses. Bonds, if issued, 

 are to be paid from the proceeds of the assessment against the lands lying in 

 the drainage district. These bonds do not differ materially from the bonds 

 issued by cities to meet the expenses of paving and the construction of 

 sewers. 



Great consideration was required with respect to crossing railroad rights 

 of way and the assessment of damages and benefits where railroads are con- 

 cerned. At first it was;thought that it would be well to require railroads to 

 bear the whole expense of carrying the drains across their rights of way. 

 But this proposal met with great objection on the ground of alleged uncon- 

 stitutionality, some of the states holding that such procedure would be con- 

 stitutional and others holding that it would not be. Not desiring to take any 

 chance of wrecking the drainage act on the ground of unconstitutionality, 

 it was finally determined to follow the methods laid down in sections 18 and 

 19 of the act. Knowing that, of all parties, railroad companies best under- 

 stand the science of delay, it was provided that in case they should fail or 

 refuse to act on notice being given them, the railroad commissioners should 

 act for them and that the determination of the railroad commissioners as to 

 the place where, and the course, direction and manner in which the ditch, 

 drain or water course should cross the right of way should be final. It is also 

 provided in section 19 of said act that should the railroad company fail, 

 neglect or refuse to do the work within the time limited by the act, the au- 

 ditor shall cause the work to be done under the supervision of the engineer in 

 charge of the improvement, and action may be brought against the railroad 

 company for the cost thereof in any court having jurisdiction. It is also 

 provided that the cost of constructing the improvement across the right of 

 way shall be considered by the appraisers as an element of its damages and 

 that the commissioners to assess the benefits shall fix and determine the 

 actual benefit to the property of the railroad company within the drainage 

 district. 



It has been suggested that because the right of way and tracks of railway 

 companies can not be benefited for agricultural or sanitary purposes, the act 

 as to railways is unconstitutional. It is said, however, in the case of B. O. 

 & C. R. Co.vs. Keiring, 23 N. E. Rep., 527, that the easement or right of 

 way of a railway company may be assessed for the construction of a ditch 

 under an express provision of the statute making them subject thereto, and 

 it has also been held in the case of /. C. R. Co. vs. East Lake Fort Dtian- 

 age District, 21 N. E. Rep., 925, that a provision in the drainage law 

 authorizing the assessment of a right of way and the tracks of a railway 

 company within the district for benefits thereto from the proposed drainage 

 is not unconstitutional and void because such right of way and tracks can 

 not be benefited for agricultural and sanitary purposes, since the benefits to 

 lands is not confined to agricultural or sanitary purposes, but the law 

 authorizes the levy of such assessments in proportion to any benefits received 

 from the drainage. In case of Drainage Commissioners , District No. S, 

 Drainage vs. III. C. R. R. Co., 41 N. E. R. , 1073, it is held that in order 



