FIFTH ANNUAL YEAR BOOK — PART VI. 511 



prove a highway over the same and the public will be benefited thereby, a 

 drainage district including such highway will be doing that which it was 

 the duty of the highway district to do, and it imposes no burden upon the 

 latter that it should be required to contribute to the benefit it thus received 

 toward the cost of such drainage. " In the 58th Lawyers Reports Annotated 

 on page 372, it is said that "under the laws of some states, drainage is done 

 by districts which are practically minute political divisions of the State. In 

 such cases, all the property affected by the drainage is placed in the district 

 and the cost of the improvement is assessed on the entire district and ap- 

 portioned among the property owners by different rules." 



The location and construction of railroads calls into activity one of the 

 highest attributes of sovereignty — the power of eminent domain. The loca- 

 tion of drainage districts and the assessments for benefits call into activity 

 two of the highest attributes of sovereignty — the power of eminent domain, 

 involving also to some extent the police power of the State, and the power of 

 taxation The proceedings leading to, and culminating in, the assessment 

 of damages involve the power of eminent domain, while the assessment for 

 benefits involves the taxing power. It is because the taxing power is 

 involved that the legislature had the right to enact in section 46 of the drain- 

 age act that the tax provided for in the act, when levied, should be a lien 

 upon all premises upon which the same is assessed to the same extent, and 

 in the same manner as taxes levied for county and State purposes. In the case 

 of Wabash Eastern R . R. Co. vs. East Lake Fork Special Drainage Dis- 

 trict, 25 N. E. Rep. , 781, the court says: ' 'The power of drainage districts 

 to levy special assessments, conferred by statute, is an exercise of the taxing 

 power, and the lien given by such statute on the real estate assessed is the 

 same as that given in cases of general taxes, and such lien is therefore supe- 

 rior to all other existing liens or claims against the property." In the case 

 of Chanev vs. State ex rel. Ely., 21 N. E. Rep. 45 CInd.). it is said that ' 'a 

 purchaser of land, during the pendency of a petition for drainage from a 

 grantor who is named in the petition, and has notice thereof, is bound by 

 the proceeding to the same extent as though he had held the legal title when 

 the petition was filed, and had been named therein and notified under a 

 statute making such an assessment a lien." 



By section 46, of the drainage act, the tax, when levied, becomes superior 

 to mortgages and to all other incumbrances except taxes for general county 

 and State purposes. Because of this superiority, there is no need to give 

 notice to incumbrancers of the assessments for benefits, and the act provides 

 for no such notice. On the other hand, notice to incumbrancers of the 

 assessment of damages is necessary for such assessments involve the exercise 

 of the power of eminent domain, and the incumbrancer is entitled to be 

 heard with respect to the compensation he is to receive and for the payment 

 of which the constitution provides. 



