trict. While leave to amend the delinquent list by striking out that portion of the appellant's right of way outside the district was granted, the amendment was not made, and the judgment and order of sale are apparently against all of appellant's right of way described in the delinquent return.

As to the first objection, it appears from the evidence that the total area of the drainage district is about twelve hundred acres. The total area of the right of way of the appellant in the district is twelve acres. The tract of land classified at 100 is assessed $17.38 an acre. Appellant's property is assessed about $100 an acre. As the appellant owned about twelve acres of right of way in the district, it was assessed nearly one-sixth of the entire assessment. It further appears from the evidence that while the right of way is low in places and is covered with water at times and is drained to some extent by reason of the improvement in question, the road-bed is constructed of crushed stone and gravel, graded up from two to three feet above the surface of the ground, so, that the track is from one to two feet above high-water mark. There is evidence in the record that the improvement is of no benefit whatever to appellant, and there is testimony of the engineer of the district and the commissioners that the property of appellant is benefited, but these witnesses to sustain the assessment do not give any very good reasons to support their testimony. Property situated in a drainage district may be assessed for a drainage improvement, but it must be property that is benefited by such improvement. This is expressly provided by section 31 of article 4 of the constitution. (Vandalia Drainage District v. Vandalia Railroad Co. 247 Ill. 114, and cases cited.) The Drainage act provides the manner in which railroads and public roads in a drainage district may be assessed if benefited, and this leads to a consideration of the second objection, that there was no proper classification of the appellant's lands in the classification roll or delinquent list.

The method to be pursued in classifying lands other than railroads and highways is prescribed by section 21 of the Farm Drainage act. (Hurd's Stat. 1913, p. 954.) Section 40 of the same act authorizes the drainage commissioners to assess to any public road or railroad in the district such sum or sums as will be just and equitable for such public road or railroad to pay in proportion to the benefits received. This section of the statute further provides that the commissioners shall determine the amount of benefits to the entire district, including the benefits to such railroad or public road, and then by fractional figures express the ratio between the sum of the benefits for the whole district and the sum found to be the benefit to the railroad or public road. Such proportional classification is subject to appeal and review, the same as is provided for individual land owners. This statute was not observed in classifying the property of appellant. There is nothing in the drainage record offered in evidence showing that the commissioners ever determined the amount of benefits to the entire district, including the benefits to appellant and to public roads, as required. In allowing the amendment the county court assumed that the amount of benefits to the entire district was the amount of the assessment subsequently made, and further assumed that this being in the mind of the drainage commissioners had the same effect as if they had properly made an estimate of the benefits and made such estimate a part of their drainage record. Even if it were true that the amount of benefits exactly equaled the assessment subsequently made, which it must be conceded would be an unusual case, then, instead of expressing the amount of benefits in a gross amount, as was done in this case, it should have been expressed by fractional figures representing the proportion of benefits that would accrue to appellant's property, thus: Assuming the total benefits to be $7500, and $1200 as representing, in the judgment of the commissioners, the amount of benefits appellant's

property would receive, its rate of classification should have been expressed by the fractional figures 12/75 instead of by the figures $1200. As was pointed out in Commissioners of Highways v. Drainage Comrs. 127 Ill. 581, the purpose of section 40 of the Drainage act was to provide the method of classification for railroads and highways. If, then, the statute is not followed, a railroad has the same rights and remedies as an individual land owner where there is an improper classification or no classification at all.

The classification of land determines the proportion of the total cost of the contemplated improvement that each tract of land shall bear and is of vital importance to the land owners, as the classification, when once established, forms and remains the basis upon which all drainage taxes, both present and future, are levied in the district, unless a new classification is made in the manner provided in section 21 of the Farm Drainage act. (Cosby v. Barnes, 251 Ill. 460; People v. Hulin, 237 id. 122.) If no classification is made of any particular tract in the manner pointed out by the statute no tax can subsequently be levied upon such unclassified tract of land, as there is no basis upon which to determine what its just portion of the tax will be. A classification roll on which a tract of land is classified at a designated amount in dollars and cents instead of at its rate per cent of benefits on the graduated scale is no classification whatever of such tract of land, for, while the alleged classification at $1200 might represent the just proportion which the tract should bear of a tax levy of $7500, (the amount of the tax levy the commissioners might have in mind at the time the classification was made,) it would not represent the just proportion of the tax the tract should bear on a levy of $2500, or any other amount, should an additional levy be deemed necessary for the purpose of completing the improvement. For this reason the statute has required that all the lands in the district shall be classified on the graduated scale according to benefits, and that

the benefit to public roads and railroads in the district shall be expressed in fractional figures expressing the ratio of benefit to be received by them in proportion to the benefit to be received by all of the other lands in the district, and in that way the public roads and railroads are made to bear only their just proportion of the tax levy that may subsequently be made, no matter what the amount of such levy may be. Where the drainage record fails to show that at the time the lands in the district were classified the commissioners estimated the total amount of benefits to all of the lands in the district, such classification cannot be supplied or presumed from a resolution levying a tax of $7500 on the lands in the district more than two months after the classification roll was adopted and confirmed; nor can such classification be supplied by taking evidence as to what the commissioners may have had in mind or intended to do, as was the case here. Drainage commissioners, in classifying the lands of the district and levying taxes thereon, exercise a special authority conferred by statute and their action in the premises must be shown by the drainage records. Where their records are silent the law does not, and the courts cannot, presume that they have acted in the matter. (People v. Warren, 231 Ill. 518; People v. Carr, 265 id. 220.) The estimate of the total benefits to all of the lands in the district must be made at the time the classification of the lands is made, and the failure to make such estimate at that time cannot be supplied by an assessment subsequently levied. The amount of the assessment levied cannot be accepted as the correct estimate of the total amount of benefits to be received, as it not infrequently happens that the cost of the contemplated improvement will not equal the amount of benefits derived from such improvement. The writing in of the figures "$1200" on the classification roll after appellant's name instead of the description of its lands, and the fractional figures representing the proportionate amount of the benefits the lands would