ficiency of funds with which to complete the improvement and that there was no necessity for the levy of this assessment. The levy of an additional or supplemental assessment proceeds upon the theory that there is not enough money in the hands of the commissioners to pay for completing the improvement and to pay the legitimate expenses incurred by the district in the prosecution of the work for which it was established. The statute requires the commissioners to keep accurate accounts and to make annual reports and that they be filed with the clerk and recorded in the drainage record. While in a proper case an additional or supplemental assessment may be levied by the commissioners, we do not think they should have the right to make such levy unless their drainage record shows there is a deficiency. This was the only opportunity the objectors had to question the propriety of an additional or supplemental levy, (People v. Carr, 231 Ill. 502,) and we think the court erred in not permitting them to show that there was no necessity for the levy of the present assessment. Had the drainage record been kept in such shape that it would show (as the law requires it should) the total receipts and disbursements of the commissioners it could readily have been determined whether or not an additional or supplemental assessment was necessary, and as it did not show the necessity of an additional or supplemental levy the court should have denied judgment and order of sale. The land owners of a drainage district have the right to be informed as to the financial condition of the district at all times, and they are entitled to be informed upon the subject by the drainage record, which record, as we understand the statute, must show a deficiency of funds before the lands of the district can be taken from the owners of such lands by forced sale to satisfy an additional or supplemental assessment. In the Carr case last above cited, on page 506, it was said: "When the law requires records of proceedings to be kept by drainage commissioners, as in this instance,

they are the only lawful evidence of the action to which they refer, and such records cannot be contradicted, added to or supplemented by parol."

The judgment of the county court will be reversed and the cause remanded to that court for further proceedings not inconsistent with the views herein expressed.

Reversed and remanded.

THE PEOPLE ex rel. City of Danville et al. Appellees, vs. WILLIAM H. Fox, Town Collector, Appellant.

Opinion filed December 21, 1910.

I. CONSTITUTIONAL LAW-classification of cities for legislation must be reasonable. While the legislature may classify cities and enact laws applicable to such cities according to their classification, yet such classification cannot be arbitrary but must be based upon reasonable differences in circumstances or conditions that will justify it.

2. SAME-provision of the statute requiring all road and bridge taxes collected upon property in city to be paid to city is invalid. The third proviso to section 16 of the Roads and Bridges act, as amended in 1909, (Laws of 1909, p. 332,) providing that in cities of 20,000 inhabitants all of the road and bridge taxes required to be levied under sections 13 and 14 of the Roads and Bridges act within the limits of the city shall be paid over to the treasurer of such city for city purposes, is unconstitutional, as granting a special privilege to such cities, based upon a mere arbitrary classification. (Peoria and Pekin Union Railway Co. v. People, 144 Ill. 458, and 232 id. 540, distinguished.)

3. SAME-classification cannot be based upon the mere fact that municipality is organized as a city. The mere fact that a municipality has adopted the form of government provided for cities affords no reasonable basis for conferring upon it benefits and privileges withheld from villages of equal population, and differing from cities only in that they have not incorporated as cities.

4. TAXES additional road tax levied for contingency cannot be diverted from its purpose. The additional road tax levied by highway commissioners under section 14 of the Roads and Bridges act is limited to a contingency arising in the township outside of the limits of a city and to the amount necessitated by the contingency,

and to require such portion of the additional tax as is levied and collected upon property within the limits of the city to be paid over to the city for its own use would be a diversion of the tax from the purpose for which it was levied.

APPEAL from the Circuit Court of Vermilion county; the Hon. W. B. SCHOLFIELD, Judge, presiding.

REARICK & MEEKS, for appellant.

J. B. MANN, for appellees.

Mr. JUSTICE FARMER delivered the opinion of the court:

The People, on the relation of the city of Danville and John F. Ridge, treasurer of said city, filed a petition in the circuit court of Vermilion county, at the May term, 1910, for a writ of mandamus directed to William H. Fox, collector for the town of Danville, commanding him to pay over to the said John F. Ridge, for the use of said city, the sum of $16,402.89, which was collected by him on account of taxes levied in the year 1909 for road and bridge purposes on property situated within the corporate limits of said city of Danville, said sum being the balance in his hands after deducting his commission or fees for collecting the same. The petition alleges that the commissioners of highways of the town of Danville, in September, 1909, levied under section 13 of the Road and Bridge act a tax of thirty-six cents on the $100 for road and bridge purposes on all taxable property in said town, and under section 14 of said act a tax of twenty-five cents on the $100 to meet certain contingencies specified in the levy which existed in said town outside the limits of the city of Danville. The petition alleges that there has been collected on account of the levy under section 13 of said act the sum of $19,360.78 and on account of the levy under section 14 the sum of $13,445, out of which sums collected the said collector has paid to the city $16,402.89; that there is still in

the hands of said collector the sum of $16,402.89, which he refuses to pay over to said city treasurer. The petition further alleges that pursuant to an ordinance passed by the city council in 1907 a census of the city of Danville was taken which showed the number of inhabitants to be 29,485, and that on July 1, 1909, the city contained more than 20,000 inhabitants. The defendant demurred to the petition. The court overruled the demurrer, and, defendant electing to stand by his demurrer, judgment was rendered and the writ ordered to issue. The case has been brought to this court by appeal.

The question presented by this record is, is the city of Danville entitled to all of the road and bridge taxes levied and collected upon property within the corporate limits of the city under both sections 13 and 14 of the Road and Bridge act? The first proviso of section 16 of said act requires one-half of the tax collected for road and bridge purposes under sections 13 and 14 on property lying within an incorporated village, town or city in which the streets are under the care of the corporation shall be paid to the treasurer of said village, town or city, to be appropriated to the improvement of roads, streets and bridges, either within or without the village, town or city and within the township, under direction of the corporate authorities of such village, town or city. The third proviso requires all taxes levied and collected for road and bridge purposes under sections 13 and 14 on property within the limits of cities of 20,000 inhabitants or upwards shall be paid over to the treasurer of said city for city purposes. The tax authorized to be levied under section 13 is a tax for road and bridge purposes and for the payment of any outstanding orders, and cannot exceed thirty-six cents on each $100. The tax authorized under section 14 is a sum in addition to that authorized under section 13 in view of some contingency, and cannot exceed twenty-five cents on the $100. The maximum levy under both sections was made in this

case.

The levy under section 14 was made on account of contingencies outside the city limits of the city of Danville.

Counsel have in their brief and argument attacked the constitutionality of both the first and third provisos to section 16 referred to, but the only question involved here is the right of the city of Danville to all of the road and bridge tax levied and collected upon property within the city limits because its population exceeds 20,000. Its right to one-half of the tax collected is not involved, for it appears from the averments of the petition that one-half of said tax has already been paid to and received by the city treasurer of said city. That amount it was entitled to if the first proviso of section 16 is valid, and that is all it was entitled to under that proviso. The city having received all it could claim under said proviso, is not by the petition in this case seeking to enforce any rights thereunder, but it is attempting to compel the payment to it of the other half of said tax under the third proviso to section 16. If the classification therein made cannot be sustained, then the city of Danville has already received all it could be entitled to under the first proviso to section 16. If the third proviso to said section 16 is invalid for any reason, the city was not entitled to the money it was seeking to obtain, and in that event the demurrer should have been sustained.

The constitutionality of said third proviso has never been directly presented to this court for determination. In Peoria and Pekin Union Railway Co. v. People, 144 Ill. 458, the validity of the third proviso to section 16 was not involved. That case arose upon an objection by the railway company to judgment for the road and bridge tax levied under section 13 in the town of Peoria, which includes the city of Peoria, and it was contended that the law authorizing the levy by the commissioners of a road and bridge tax upon property within the limits of an incorporated city was invalid. The tax levied had not been collected and the validity of the third proviso to section 16