so situated that the maintenance of a common outlet for the drainage thereof will conduce to the preservation of the public health, the same may be incorporated as a sanitary district under this act.' * As a historical fact, and as a fact abundantly shown by the terms of the act itself, this scheme was formulated mainly, if not exclusively, with reference to the sanitary condition and needs of the city of Chicago and its environs, and we cannot give proper construction to the act without taking into account the peculiar situation of the territory which the proposed sanitary district of Chicago was intended to embrace. Chicago is a city of probably one million inhabitants, or more, and is bordered on the east by Lake Michigan; that lake being the source of its water supply. A few miles west of Chicago, and running in a north and south direction, is the Desplaines river, and at a point opposite the southerly part of the city said river turns towards the southwest, and runs in that direction to the city of Joliet, below which it is known as the Illinois river. The territory between Lake Michigan and the Desplaines river, and along the course of that river to Joliet, is nearly level, none of it being more than a few feet above the level of the lake, while at Joliet the general surface is quite a number of feet below the level of the lake. The object of the system of drainage proposed by said act is to prevent the drainage and sewage of the city and its environs being carried into Lake Michigan, thereby contaminating the waters of the lake. This result is to be reached by cutting a channel which will give an outlet for the drainage and sewage of the city in the direction of the Desplaines and Illinois rivers, and which will also cause a large flow of water from the lake through the proposed artificial channel into those rivers, for the purpose of diluting the sewage and rendering it innocuous to the people living along the course of those streams."

The corporate authorities of sanitary districts organized under said act consist of a board of trustees, composed of nine members. Sections 20, 23, and 27 of said act are as follows:

"Sec. 20. Any channel or outlet constructed under the provisions of this act which shall cause the discharge of sewage into or through any river or stream of water beyond or without the limits of the district constructing the same shall be of sufficient size and capacity to produce a continuous flow of water of at least 200 cubic feet per minute for each one thousand of the population of the district drained thereby, and the same shall be kept and maintained of such size and in such condition that the water thereof shall be neither offensive or injurious to the health of any of the people of this state; and before any sewage shall be discharged into such channel or outlet, all garbage, dead animals and parts thereof, and other solids shall be taken therefrom, and said district shall, at the time any

sewage is turned into or through any such channel or channels, turn into said channel or channels not less than 20,000 cubic feet of water per minute for every 100,000 inhabitants of said district, and shall thereafter maintain the flow of such quantity of water."

"Sec. 23. If any channel is constructed under the provisions hereof by means of which any of the waters of Lake Michigan shall be caused to pass into the Desplaines or Illinois river, such channel shall be constructed of sufficient size and capacity to produce and maintain at all times a continuous flow of not less than 300,000 cubic feet of water per minute, and to be of a depth of not less than fourteen feet, and a current not exceeding three miles per hour, and if any portion of any such channel shall be cut through a territory with a rocky stratum where such rocky stratum is above a grade sufficient to produce a depth of water from Lake Michigan of not less than eighteen feet, such portion of said channel shall have double the flowing capacity above provided for, and a width of not less than one hundred and sixty feet at the bottom capable of producing a depth of not less than eighteen feet of water. If the population of the district draining into such channel shall at any time exceed 1,500,000, such channel shall be made and kept of such size and in such condition that it will produce and maintain at all times a continuous flow of not less than 20,000 cubic feet of water per minute for each 100,000 of the population of such district, at a current of not more than three miles per hour, and if at any time the general government shall improve the Desplaines or Illinois rivers, so that the same shall be capable of receiving a flow of 600,000 cubic feet of water per minute, or more, from said channel, and shall provide for the payment of all damages which any extra flow above 300,000 cubic feet of water per minute from such channel may cause to private property so as to save harmless the said district from all liability therefrom, then such sanitary district shall within one year thereafter, enlarge the entire channel leading into said Desplaines or Illinois rivers from said district to a sufficient size and capacity to produce and maintain a continuous flow throughout the same of not less than 600,000 cubic feet of water per minute, with a current of not more than three miles per hour, and such channel shall be constructed upon such grade as to be capable of producing a depth of water not less than eighteen feet throughout said channel, and shall have a width of not less than one hundred and sixty feet at the bottom."

"Sec. 27. If any channel shall be constructed under the provisions of section 23 of this act, it shall be the duty of the trustees of such district, when such channel shall be completed, and before any water or sewage shall be admitted therein, to duly notify, in writing, the governor of this state of such fact; and the governor shall thereupon ap

point three discreet persons as commissioners, one of whom shall be a resident of the city of Joliet, or between said city and the city of Lasalle, and one a resident of the city of Lasalle, or between said city and the city of Peoria, and one a resident of the city of Peoria, or between said city and the mouth of the Illinois river, to inspect said work. The said commissioners shall, within ten days after such appointment meet at the city of Chicago, and shall appoint a competent civil engineer, and they may employ such other assistance as they may require to expeditiously perform their duties. The said commission shall take as their datum line for the survey the datum established by the Illinois and Michigan canal trustees in 1847, and shall make such examination and surveys of Chicago river and of the channel or channels authorized by this act as shall enable them to ascertain whether said channel is of the character and capacity required by this act. And in case they shall find the work in all respects in accordance with the provisions of section 23, of this act, they shall so certify to the governor, who shall thereupon authorize the water and sewage to be let into said channel. But in case said commissioners shall find said channel is not constructed in accordance with the provisions of this act, it shall be their duty to file in any court of competent jurisdiction, on the chancery side thereof, in their name as such commissioners, a bill against said corporation, which bill shall set forth wherein said work is deficient and fails to comply with the provisions of this act; and said court shall thereupon issue an injunction without bond against said defendant, enjoining and restraining it from admitting water or sewage into said channel until the final order of the court. And in case said court, upon hearing, shall determine that said channel is not constructed in accordance with the provisions of this act, said injunction shall be continued until the provisions of this act shall have been fully complied with."

-And require the trustees of the sanitary district to cause a channel to be constructed of sufficient capacity to carry 300,000 cubic feet of water per minute as a minimum discharge, with a current not exceeding three miles per hour, and also require such portions of such channel as are cut through the solid rock to have a capacity of 600,000 cubic feet of water per minute, and to turn into said channel not less than 20,000 cubic feet of water per minute for every 100,000 inhabitants in said district, and thereafter to maintain the flow of such quantity of water; and, before any water or sewage should be by them admitted to said channel, to notify the governor and obtain from him a permit authorizing the water and sewage to be let into said channel.

In December, 1899, the trustees reported to the governor that the said work upon the

channel from Robey street to Lockport had been completed. Thereupon he appointed a commission, which, after an inspection, reported favorably, and on the 17th day of January, 1900, a formal permit was issued by him, under which water and sewage were immediately let into the channel, through which they have since flowed. By reason, however, of legislation of the congress of the United States extending the jurisdiction of the federal government over the Chicago river and its branches, it was necessary for the trustees of the appellee, before connecting its main channel with the South Branch of the Chicago river, to obtain the consent of the secretary of war and the chief of engineers of the United States government, which permission was obtained on the 8th day of May, 1899, and a permit issued to said district authorizing it to divert the waters of the Chicago river, and cause them to flow into its artificial channel at Robey street, which permit is as follows:

"Whereas, by section 10 of an act of congress approved March 3, 1899, entitled 'An act making appropriations for the construction, repair and preservation of certain public works on rivers and harbors, and for other purposes,' it is provided that it shall not be lawful to alter or modify the course, location, condition or capacity of the channel of any navigable water of the United States unless the work has been recommended by the chief of engineers and authorized by the secretary of war, prior to the beginning of the same; and whereas, the sanitary district of Chicago, a municipal corporation, organized under the laws of the state of Illinois, has constructed an artificial channel from Robey street, Chicago, to Lockport, and has been heretofore granted permission by the secretary of war to make certain improvements in the Chicago river for the purpose of correcting and regulating the cross-section of the river so as to secure a flowage capacity of 300,000 cubic feet per minute, with a velocity of one and one-quarter miles an hour, it being intended to connect the said artificial channel with the West Fork of the South Branch of the Chicago river at Robey street, in the said city of Chicago; and whereas, the said sanitary district of Chicago has now applied to the secretary of war for permission to divert the waters of the said Chicago river and cause them to flow into the said artificial channel at Robey street, as aforesaid; and whereas, the said sanitary district of Chicago represents that such movable dams and sluice gates as are necessary to at all times secure absolute and complete control of the volume and velocity of flow through the Chicago river have been constructed:

"Now, therefore, the chief of engineers having consented thereto, this is to certify that the secretary of war hereby gives permission to the said sanitary district of Chicago to open the channel constructed and

cause the waters of Chicago river to flow into the same, subject to the following conditions:

"(1) That it be distinctly understood that it is the intention of the secretary of war to submit the question connected with the work of the sanitary district of Chicago to congress for consideration and final action, and that this permit shall be subject to such action as may be taken by congress.

"(2) That if, at any time, it becomes apparent that the current created by such dramage work on the south and main branches of the Chicago river is reasonably obstructive of navigation or injurious to property, the secretary of war reserves the right to close said discharge through said channel, or to modify it to such extent as may be demanded by navigation and to property interests along said Chicago river and its south branches.

"(3) The sanitary district of Chicago must assume all responsibility for damages to property and navigation interests by reason of the introduction of the current in Chicago river.

"Witness my hand this 8th day of May,

1899.

"R. A. Alger, Secretary of War. "John M. Wilson, Brig.-Gen., Chief of Engineers, U. S. A."

It will be observed that the statute under which the appellee is organized requires a discharge of not less than 300,000 cubic feet of water per minute through said channel, with a current of not exceeding 3 miles an hour, while the permit of the federal government limits the discharge from the Chicago river into said channel by requiring that a current shall not be created in said river to exceed 14 miles per hour. The evidence shows the Chicago river to be a narrow and crooked stream, and obstructed in many places, so that with a discharge of 300,000 cubic feet of water per minute from the river into said channel a current would be cre ated in the river of much greater velocity than 14 miles per hour, which would be a violation of the terms of the permit granted to the appellee by the federal government, make navigation in the river dangerous, and subject the rights of appellee to take water from the Chicago river to forfeiture, and thereby render it impossible for appellee to accomplish the purposes for which it was created. Upon the hearing, Mr. Isham Randolph, the chief engineer of the sanitary district, testified: "The permit to open the gates at Lockport and permit the flow went into effect the morning of January 17, 1900. The condition existing in the Chicago river at that time, and which has not been remedied, was such that the Chicago river could not give the full flow required by law, and at the same time conform to the requirements of the secretary of war, under which the permit was given to use the Chicago river. The current has exceeded two miles

an hour in certain narrow and restricted portions of the river, with a flow of 300,000 gallons per minute. There is no connection between the main channel at Robey street and Lake Michigan except through the Chicago river and the South Branch. That condition prevailed at the time the commission appointed by the governor made its report, and prevails now. The center piers of bridges in the Chicago river afford the most serious obstruction which exists in the river to-day with reference to passing 300,000 cubic feet of water per minute through the Chicago river and the south branch thereof. With the bridges there, this flow of 300,000 cubic feet per minute cannot be obtained without creating a current which would be an obstruction to navigation, or in excess of a mile and a quarter an hour. The presence of these center piers is a menace to navigation with such a current as must obtain in the river with 300,000 gallons per minute flowing, so long as the center piers remain there. The district cannot deliver through the Chicago river 300,000 cubic feet per minute without exceeding a flow of a mile and a quarter per hour. The current would approximate two miles an hour at the narrowest point of the Chicago river in the present condition. A current of two miles an hour in a straight stream without central obstruetions would not be a serious matter, but in a crooked stream like the Chicago river, with frequent barriers in the center of the stream, it is a serious matter. By these barriers I mean center-pier bridges and the protection piers which go along with them."

On April 21, 1891, the sanitary district of Chicago passed the following resolution: "Resolved, that this board hereby orders that the sanitary district of Chicago do forthwith enter upon, use, widen, deepen and improve the Chicago river from its mouth at Lake Michigan to the South Branch thereof, and also the South Branch thereof, together with the South and West Fork thereof, so as to make the same a proper and sufficient supply channel for the main channel heretofore surveyed from the Chicago river to Joliet; and further, that the acting chief engineer be and he is hereby directed immediately to investigate and report upon the capacity of said river and its South Branch and Forks for that purpose, and also as to any changes that should be made therein, and that a copy of this resolution, certified by the clerk, be forthwith transmitted to the mayor and common council of the city of Chicago and the secretary of war of the United States." And in pursuance of said resolution afterwards formulated, a plan for the improvement of the Chicago river by widening and deepening the same, and by ordinance duly adopted declared the said Chicago river to be a part of its main channel, and provided for the carrying out of the plans adopted for the improvement of said river, to the end that a sufficient flow

of water therefrom might be obtained to enable it to comply with the statute directing it to carry through said channel 300,000 cubic feet of water per minute, with a current not exceeding three miles per hour in said channel.

Sections 7 and 17 of the said sanitary drainage act (Hurd's Rev. St. 1899, pp. 329, 331) are in part as follows:

"Sec. 7. The board of trustees of any sanitary district organized under this act shall have power to provide for the drainage of such district by laying out, establishing, constructing and maintaining one or more main channels, drains, ditches and outlets for carrying off and disposing of the drainage (including the sewage) of such district, together with such adjuncts and additions thereto as may be necessary or proper to cause such channels or outlets to accomplish the end for which they are designed in a satisfactory manner."

"Sec. 17. When it shall be necessary in making any improvements which any district is authorized by this act to make, to enter upon any public property or property held for public use, such district shall have the power so to do and may acquire the necessary right of way over such property held for public use in the same manner as is above provided for acquiring private property, and may enter upon, use, widen, deepen and improve any navigable or other waters, water-ways, canal or lake: provided, the public use thereof shall not be unnecessarily interrupted or interfered with, and that the same shall be restored to its former usefulness as soon as practicable."

By virtue thereof said district is not only authorized to enter upon and use, widen, and deepen any navigable stream or water way, but it is also authorized to construct such adjuncts and additions thereto as may be necessary or proper to cause such channels or outlets to accomplish the end for which they are designed in a satisfactory manner. Taking into consideration said sections of the act, in connection with what appears to be an absolute necessity of entering upon, widening, and deepening the Chicago river in order to comply with the law under which the district is organized, and not to violate the terms of the permit granted by the federal government, we are of the opinion that the appellee has power, with the consent of the federal government, and upon the payment of such damages as it may cause, to widen and deepen the Chicago river so that the same shall have sufficient capacity to supply the artificial channel of the sanitary district with sufficient water to enable it to comply with the act under which it is organized, without violating the regulations and requirements of the secretary of war. To hold otherwise would be to hold that the appellee had power to construct a channel from Robey street to Lockport, but that it had no power to obtain the water from Lake

Michigan through the Chicago river, so as to render it possible to utilize said channel.

The insistence of appellant that the construction of bridges over the Chicago river by the sanitary district is in excess of its power, in view of what has already been said, is without force. The evidence shows that the widening of the river would leave the old bridges disconnected from the river banks; that said bridges, with one or two exceptions, are now constructed upon center piers, and that it will be necessary to replace the same by bridges of different construction, thereby rendering the old bridges unfit for use at the places where now erected. If the changes made by the appellee create the necessity for a new bridge or bridges, there is nothing inequitable or unjust in requiring the district to supply the place of those rendered practically worthless by new ones.

Neither is there any force in the argument that the jurisdiction over the Chicago river has been committed to, and is under the control of, the city of Chicago, and that it will not be presumed that the state intended to clothe another of its agencies with jurisdiction over the same stream, because it would cause thereby a conflict between the two local municipal governments. The Chicago river is not under the absolute control of said city; and, even if there were no legislation authorizing the sanitary district to improve the river, the city could not do so unless permitted so to do by the federal government. City of Chicago v. Law, 144 III. 569, 33 N. E. 855. The improvements contemplated by the appellee in no way conflict with the jurisdiction now exercised by the city of Chicago over the Chicago river.

It is further contended that the bonds in question are within the limitations provided by the act against the creation of indebtedness and the levying of taxes by appellee, and are therefore void. Sections 9, 10, and 12 of the sanitary drainage act are as follows:

"Sec. 9. The corporation may borrow money for corporate purposes and may issue bonds therefor, but shall not become indebted, in any manner, or for any purpose, to an amount in the aggregate to exceed five per centum on the valuation of taxable property therein, to be ascertained by the last assessment for state and county taxes previous to the incurring of such indebtedness: provided, however, that said five per centum shall not exceed the sum of fifteen million dollars ($15,000,000).

"Sec. 10. At the time or before incurring any indebtedness, the board of trustees shall provide for the collection of a direct annual tax sufficient to pay the interest on such debt as it falls due, and also to pay and discharge the principal thereof as the same shall fall due, and at least within twenty years from the time of contracting the same: provided, that the net earnings from ter power and docks may be appropriated

wa

and applied to the purpose of paying the interest or principal of such indebtedness, or both, and to the extent that they will suffice, the direct tax may be remitted."

"Sec. 12. The board of trustees may levy and collect taxes for corporate purposes upon property within the territorial limits of such sanitary district, the aggregate amount of which for each of the years 1895, 1896, 1897, 1898 and 1899, shall not exceed one and one-half per centum of the value of the taxable property within the corporate limits, as the same shall be assessed and equalized for the state and county taxes of the year in which the levy is made, and the aggregate amount of which in any one year after the year 1899 shall not exceed one-half of one per centum of such value."

At the date of the issue of the bonds sought to be enjoined in this proceeding there was an existing indebtedness incurred by the sanitary district aggregating $12,210,000. By the act under which it was organized the district is authorized to incur debts in the aggregate to an amount not exceeding 5 per centum on the valuation of the taxable property in the district, to be ascertained by the last assessment for state and county taxes previous to the incurring of said indebtedness, provided the same shall not exceed the sum of $15,000,000. $12,210,000 plus $2,375,000 equals $14,585,000. The assessed and equalized valuation of the property within the sanitary district for the year 1899 amounted to $338,674,447. Five per cent. of that amount would equal $16,933,722, so that upon the basis of the assessment of 1899 the sanitary district, after the issue of these bonds, was within the amount which it was by law authorized to raise, both in regard to the percentage of indebtedness and the $15,000,000 limit established by the act. It is claimed, however, that the board of review of Cook county had so decreased and cut down the assessed valuation of assessable property within said county that 5 per centum of the amount of the assessed valuation of the taxable property within said district for the year 1900 would not equal the indebtedness of the sanitary district. The bonds in question were issued and sold to the Illinois Trust & Savings Bank October 22, 1900, and the equalized value of the assessable property in the county of Cook was not arrived at by the action of the state board of equalization until long after that date. The last assessment for state and county purposes, therefore, was for the year 1899, and upon that basis the sanitary drainage district had a right to contract the indebtedness in the manner that it did.

Under the authority of Culbertson v. City of Fulton, 127 Ill. 30, 18 N. E. 781, the equalized assessed valuation of the property within the sanitary district of Chicago for the year 1899 alone determined the amount to which the district might become indebted. In that case, on page 37, 127 Ill., and page

*

*

782, 18 N. E., we say: "The constitution provides that the value of the taxable property must be ascertained by 'the last assessment for state and county taxes previous to the incurring of such indebtedness.' Inasmuch as the indebtedness must be regarded as having been incurred at the date of the contract, we must ascertain the value of the taxable property, for the purposes of this case, from the assessment for state and county taxes for the year 1886, and not for the year 1887. This is so for the reason that the equalized value of the assessable property in the city of Fulton for the year 1887 was not arrived at by the action of the state board of equalization until the 1st day of October, 1887. It is the assessment as fixed by the state board which must govern, and the state board did not fix such assessment until after August 15th, the date of the incurring of the indebtedness." If the possibilities of the future as to whether values would increase or decrease, according to the assessment as made by boards of review or boards of equalization, should be the test as to the validity of municipal securities, the result would be to practically destroy the value of all such securities.

The further contention of appellant that the tax of one-half of 1 per centum upon the taxable property of the district, in view of the proposed reduction by the board of review of Cook county, will not produce a fund sufficient to pay the annual indebtedness of said district and its current running and incidental expenses, and that such power to tax is a limitation upon the power to incur indebtedness, cannot be sustained. A tax of one-half of 1 per cent. upon the taxable property of said district, as shown by the assessment in 1899, would produce $1,693,372, while its then annual indebtedness, including the interest upon said bonds accruing in the year 1891, amounted only to $1,396,450, leaving a surplus of $296,922 in the hands of the trustees, if the full limit of one-half per cent. were levied, with which to pay the current running and incidental expenses of the district. Whatever exigencies the future might develop in regard to the reduction of assessable values in said district were unimportant, because, as we have seen, if the taxable property in said district at the time the indebtedness was incurred was sufficient to authorize the issue of said bonds, they could not be defeated by reason of the decreased valuation of the property of said district subject to taxation thereafter.

Neither can the contention that the bonds are void upon the ground that no provision was made by the ordinance, as amended, for the levy of a tax to pay the interest upon the same for the year 1900, be sustained. The ordinances under which the bonds were is sued were passed in the months of September and October, 1900, and directed that the first year's interest, which amounted to $95,000, should be payable one-half on the 1st