#### Commissioners of Highways of Town of Tampico, Appellees, v. Drainage Commissioners of Drainage District No. 2 of Tampico and Hahnaman Townships, Appellants.

Gen. No. 5,828.

(Not to he reported in full.)

Appeal from the Circuit Court of Whiteside county; the Hon. Frank. D. Ramsat, Judge, presiding. Heard in this court at the October term, 1912.

Affirmed.

Opinion filed July 31, 1914.

Statement of the Case.

Petition by the Commissioners of Highways of the Town of Tampico against the Drainage Commissioners of Drainage District No. 2 of Tampico and Hahnaman Townships for a writ of mandamus to compel the drainage commissioners to replace a bridge over a drainage ditch where said ditch crosses a certain highway, and to levy an assessment therefor if necessary. The respondents filed an answer and pleas. A demurrer was sustained to certain pleas and issues were joined on the answer and the rest of the pleas. A jury was waived, proofs were heard and a mandamus was awarded pursuant to the prayer of the petition. To reverse the judgment, respondents appeal.

Cart, E. Sheldon and William Graham, for appellants.

Henry C. Ward, for appellees.

*

See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

Per Cubiam.

*7Abstract of the Decision.

Appeal and ebrob, § 1755 * —when judgment will he affirmed hy a divided court. On appeal to the Appellate Court where the judge assigned to write the majority opinion died and the other two judges were unable to agree, held that the judgment would be affirmed, it appearing that there would be a delay of several months before the successor of the deceased judge could consider the case, and it also appearing that whichever party is defeated will take the case to the Supreme Court.