145 Iowa 130 | Iowa | 1909
On January 8, 1907, a petition was filed for the establishment of what was to be known as the “Nishnabotna Kiver Improvement District No. 2,” in Fremont County, Iowa. On the next day the board of supervisors approved said petition, and appointed one Seth Dean, a civil engineer, to make a report and survey'thereon. The commissioner so appointed proceeded with the work, and on April 10th filed his report, etc., with the hoard. Thereupon notices were ordered and given pursuant to law, and May 27, 1907, was fixed as the' time when objections and claims for damages should be filed. Within the time so fixed appellees and others, who were owners of lands within the proposed district, filed objections to and remonstrances against the improvement as reported by the commissioner. During the hearing of these objections, appellees also filed a motion to dismiss the proceedings and objections to the boards acting therein, for the reason, among others, that one H. O. Vanatta, a member of the board, was a landowner within the district, and was personally and financially interested in the establishment thereof. The matter proceeded without determination un-' til August 5th, when appellees filed a motion for a continuance, in which they asked that the proceedings be postponed until after the first Monday in January, 1.908, when a successor to the said Vanatta would be inducted into office. This motion was objected to, and the petitioners for the ditch also insisted that appellees had waived all objections to Vanatta’s sitting in the case. On August 6, 1907, the board, by resolution, voted to establish the improvement and district; two of the members, one of whom was Vanatta, voting Aye, and the other members voting
The propositions made against the establishment of the district in the court below were as follows:
. (1) Owing to the fact that one of the members of the board was interested in the establishment of the ditch, and voted in favor thereof, its establishment was without jurisdiction.
(2) No plat was filed prior to the establishment of the ditch as required by the statute.
0 (3) The establishment of said ditch is not for the best interests of the landowners of said district.
The trial court reversed the action of the board upon the third ground alone, although it intimated grave ■ doubts regarding the sufficiency of the plat filed by the commissioner before the order for the establishment of the ditch was made. The objections to this plat were that it did not show the elevations of the several tracts of land within the district, and did.not show in what manner the various tracts of land would be benefited. It is conceded that one of the members of the board of supervisors who voted in favor of the establishment of the district owned land therein.
The proposed improvement is an extensive and expensive one. The district embraces about eight' thousand four hundred and forty-six acres of land, and the plan contemplates a change in the channel of the West Nishnabotna Eiver from near the boundary line .between Mills and Fremont Counties on the north for a distance nearly ten and
In the river bottom are some sloughs, low places, and bayous, in which water collects during floods and remains until -disposed of by evaporation. It is thought that by straightening the channel of the river, and by increasing its fall, the bottom lands can be reclaimed, and made fit for agricultural purposes. The theory is that the new channel, although not nearly as large as the old, will gradually be made larger by the rapid flow of water through it; that until it is so enlarged the old channel will take care of the surplus water; that, as the new channel is being made larger, the old channel will gradually be filled up by the deposit of silt, and that eventually the new channel will not only take care of the flood waters, but that the sloughs, bayous, and low places will be drained through! percolation, and that in the end the entire bottom will be made fit for tillage. Appellants are not so bold as to claim that all overflow will cease. They say in argument:
That a large portion of the district to subject to frequent overflows, and most of it to overflow at time of -extraordinary floods which occur once in four or five years, sometimes oftener. Ordinary floods occur frequently. There are sloughs and low places in which water is retained for a considerable time after flood, ánd is disposed of by the slow process of evaporation. The first years after the construction of the ditch the flood water will also flow in present river channel and the increased flow will carry away the water of local rains before floods from the tortuous channel above the north county line bring down the river floods, and reduce the number, extent, and duration
This is, of course, problematical, and we shall presently refer more at length to these claims.
No doubt a finding by the board of supervisors that the petition is not sufficient in form or matter is judicial, and subject to review on appeal to a court; but is a finding that the board deems it best or not advisable to establish the district and make the public improvement, on the ground that such action would, or would not, be conducive to the public health,- convenience, or welfare, or to the public benefit or utility, subject to such review? ... It must be borne in mind that the appellants are asking the district court to review on an appeal a finding by the supervisors that they do not- deem it- best to establish the drainage district in question, on the ground that it is not for the public benefit or utility or welfare. If 'the statutory appeal, which seems to be authorized in such cases, is a valid exercise of power on the part of the district court in this case, then the drainage district is to be established, if at all, not because the supervisors deem it best, but because the district judge has reached that conclusion1. . . . It is well settled in this state that the Legislature may provide for the exercise by a court of the power to judicially determine facts which are made the conditions on which authority may be exercised by officers to whom is delegated the exercise of legislative and executive power. Thus a statute has been upheld which authorized a proceeding in the circuit court, as it formerly existed, to determine whether justice and equity required that certain described territory or any portion thereof, should be annexed to a city or town; but this statute was upheld, as against the constitutional objection founded upon the separation of the departments of government, only upon the theory that the facts on which the court was to determine the question were issuable facts, capable of judicial determination. ... As already- indicated, we think the function of the board of supervisors in determining the
In arriving at the doctrine announced in any case, we must always have in mind the particular facts of that case, the arguments used, and the conclusions reached. Not every statement found in a judicial opinion is to be regarded as the law of the case. Much that is said by way of argument is to be regarded as dictum, and the case is authority for nothing more than it. expressly decides. What the Denny case really decides is that there can be no appeal to the district court from an order of the board of supervisors, finding that a proposed drainage district is not for the public benefit or utility, or conducive to the public health, convenience, or welfare, and a refusal to establish the district on that account. That is quite a different proposition from an appeal by landowners within a proposed district, whose land is to be taxed with the expense of the proposed 'improvement, from an order of
Now the statute under consideration provides: “The board of supervisors at the session set' for hearing on said petition, which session may be regular, special or adjourned, shall thereupon proceed to hear and determine the sufficiency of the petition in form and substance, at any time before final action thereon; and if deemed necessary the board may view the premises, and if they so find that such levee or drainage district would not be for the public benefit or utility or conducive to the public health, convenience or welfare, they shall dismiss the proceedings.” Code Supp. 1907, section 1989-a5. Also: “When the time for final action shall have arrived after the filing of the
Here the board made a contrary finding, and had also so far proceeded under the subsequent provisions of the statute as to locate and establish the district and ditch, appoint appraisers, and award the damages, from which appeal had been taken when the case was appealed to the district court. The record further shows that- a permanent survey was made and approved, and that the board had
The very .existence of the provision makes the question of necessity ultimately a judicial one. If it does not, the Legislature remains supreme in this regard, notwithstanding the Constitution. It is doubtless true that the people can not divest themselves of this attribute of their sovereignty; but the constitutional provision is not an abandonment of the right, but a regulation of the manner of its exercise. It gives to the judicial branch of the government a measure of power that would otherwise belong to the legislative branch. It says, in effect, that the courts • shall see to it that property is not taken unless a necessity for its taking exists. If a legislative determination of the question of necessity would be conclusive in the absence of the constitutional provision, that provision, if it is to have any effect whatever, must deprive the legislative determination of its conclusive character. The statement in
From the Sisson case we quote:
The initiative petition required must declare for' a public use, and. the board of supervisors- convened in session and in the exercise of a judicial function well understood must find that the particular ditch or drain petitioned for will in fact result in a given benefit and be of community use.
From McGee’s case we extract the following':
While it would be competent for the Legislature to ignore the judicial power entirely in providing for some work of improvement, and delegate the duties of taking the property and awarding compensation entirely to a body having no judicial attributes, yet the question whether such improvement is a public use, or the means of awarding just compensation, presents issues upon which the courts might be the final arbiters, and, again, the question whether the public use existed might depend upon facts involving the consideration whether the improvement, would be adequate for the purpose it- was intended. In either case the Legislature itself, or through a designated body, might determine such question, or might impose upon the courts the duty to determine the essential facts in some proper and appropriate method. . . . We must go further, and inquire into the character of the improvement; for, if the public use is to be determined by the court, such use may depend upon a consideration of disputable facts, as for instance, whether the establishment of the uniform height of water to be maintained is adequate for. the only purpose upon which the right to take private property for public use can, under the precise terms of the statute, be made to' depend, viz., the ‘improvement of navigation and the protection of public health.’ Upon these questions, which present issues of fact, involving the*143 utility of the improvement itself, it would seem proper, if not necessary, for a court to hear evidence and determine the disputed facts. In doing so the court does not trench upon legislative functions, but aids the legislative power by its determination that it is consonant with the protection of ‘public health’ or ‘improvement of navigation.’ . . The state drainage law provides for the institution of a ditch when the county commissioners decide that it will be ‘of public benefit or utility or conduce to the public health, convenience or welfare.’ The determination of the board of eommissioners is not in this respect conclusive. An appeal may be taken to the district court, and there that question is. finally decided. Whenever an appeal is taken, the action of the commissioners may be sustained in whole or in part.
In State v. Crosby, supra, it is said: “The condemnation of land through which such ditches, may be constructed, the assessment of damages, and the determination of the legal rights to parties affected are judicial. The exercise of both these powers is involved in proceedings under this statute.”
From Cooper’s case we quote as follows:
The principle to be deduced from these extracts obviously is that where any power is conferred upon a court of justice, to be exercised by it, as a court, in the manner and with the formalities used in its ordinary proceedings, the action of such court is to be regarded as judicial, irrespective of the original nature of the power. The Legislature, by conferring any particular power upon a court, virtually declares that it considers it a power which may be most appropriately exercised under the modes and forms -of a judicial proceeding. If, therefore, there were nothing whatever to characterize the proceedings in this case as in any respect judicial, except that they were had in the exercise of a power conferred upon the Supreme Court as a court, I should not hesitate to hold that they were subject to all the ordinary incidents of other proceedings in courts of justice.
In Field v. Clark, 143 U. S. 649 (12 Sup. Ct. 495,
The rule for such appeals has thus been stated: “In view of the fact already mentioned that these duties are in a large measure legislative in character, and the further obvious truth that the supervisors are on the ground where they can see and know .the situation as no one can see or
2. II. As already indicated, we shall not consider the alleged disqualification of one of the members of the board. [Regarding the claim that the board did not have sufficient information upon which to act and that the civil engineer did not make an adequate or sufficient report,' plat, and profile, we shall first quote the statute with reference thereto:
auditor, which returns shall set forth the starting point, the route, the terminus or termini of the said ditch or ditches, drain, or drains, or other improvements, together with a plat and profile showing the ditches, drains, or other improvements, and the course and length of the drain or “He shall make return of his proceedings to the county*146 drains through each tract of land and the elevation of all lakes, ponds, and deep depressions in said district, and the boundary of the proposed district, and the description of each tract of land therein and names of the owners thereof as shown by the transfer books in the auditor’s office, together with the probable cost, and such other facts and recommendations as he may deem material.” Code Supp. 1907, section 1989-a2.
The engineer appointed by the board did not in his report give any elevations of any of the lands, ponds, or lakes, of depressions in the proposed district, and these were not added to the plat and profile until December 4, 1907, which was after the appeal had been taken to the district court. Moreover, the engineer did not make any estimate as to the expense involved in carrying the water from the various creeks emptying into the old channel of the river to the new channel, and had not, down to the time of trial, made any such estimates. In Zinser v. Board of Supervisors, 137 Iowa, 665, we said, in speaking of the engineer’s duty: “Unless he performs them, there is no assurance that the work will be prosecuted on scientific or economic lines. All interested have the right to know from him (1) whether in his opinion the improvement should be made, and, if so, (2) the character of such improvement; (3) the several tracts of land which will be affected and how each will be affected; (4) the probable cost of the improvement; (5) such other matters as he may deem material.” Again, in the same case, we said: “To fully reclaim these lands, it will be necessary to excavate several lateral ditches not provided for. What these would cost is not disclosed by the record before us. To completely reclaim the land, much of it must be tiled, and no estimate of the cost of this is to be found in the record. The probable expense of these necessarily must be taken into account, as the only estimate of the value of the lands after the improvement is as reclaimed, and to fully reclaim them
Again, it is shown that much of the water which floods the south part of the proposed district does not come from the river, the channel of which it is proposed to change; but from creeks, which drain large areas, coming from the northeast and the northwest, and the proposed ditch would, of course, have little or no effect upon this accumulation of water. Doubtless the northern part of the district would, under the testimony, be benefited by this improvement, but the entire scheme is so incomplete, so problematical, and the expense so uncertain that we are inclined to agree with the district court in its holding that it should
One other thought is worthy of consideration. The new -ditch crosses the old channel in something like thirty places. -For a time, and at least for three years according to one estimate, the old channel will continue to take care of a part of the water and the new of a part. As soon as the new enlarges so as to take care of a considerable part of the water the old will be converted into ponds and bayous, and the water therein will undoubtedly become stagnant or if not full of stagnant water, the old channel can not be farmed or utilized. The new will by that time have become larger and broader even than the old channel, and no saving will be obtained. That the new channel will not carry the floods which do the principal damage seems to be firmly established by the testimony. That it will not take care of the present ponds and bayous seems certain, and that the plan will create more bayous and ponds is quite clear.
On the whole record, we are constrained to hold that the'improvement district should not have been established
The decree of the district court must be, and it is affirmed.