118 P. 487 | Utah | 1911
Lead Opinion
This is an appeal from a final judgment perpetually enjoining the collection of a certain drainage tax.
It is not clear upon what ground the district judge based his decision. From what is disclosed by the record, however, it seems that the injunction was granted upon the ground that the law under which the tax was imposed is void, because it authorizes the taking of property without due'process of law.
The judgment was granted upon the pleadings, and it is contended here that the judgment must be sustained, because the answer of appellant presented no defense. This ■contention is untenable, since both the denials, as well as the affirmative averments, contained in the answer presented issues of fact which could not have been determined on a motion for judgment on the pleadings; and if the law under ■which the tax was imposed is valid the judgment cannot stand. We shall therefore treat the motion, for judgment as a demurrer to the answer, and by that method determine the validity of the law which is assailed.
The law in its present form was adopted in 1907, and constitutes sections 760 to 779, inclusive, of the Compiled Laws of Utah 1907. The text, of'the act in question, so fax as material here, is as follows:
*502 “Sec. 760. ."Whenever any number of persons constituting a majority, of the holders of title, and who hold title to a major part of the land to be included in the proposed district susceptible of one mode of drainage from a common source and by the same system of works, desire to provide for the drainage of the same, they may propose the organization of a drainage district under the provisions of this act, provided the provisions of this act shall not apply to the drainage of mines.
“Sec. 761. A petition shall first be presented to the board of county commissioners of the county in which the lands, or the greater portion thereof, are situated, signed by the required number of holders of title, or of evidence of title, and shall set forth and particularly describe the boundaries of the proposed district, and shall pray that the same may be organized under the provisions, of this title. The petition shall be presented at a regular meeting of the board, of county commissioners and, for at least two weeks before the time at which the same is to be presented, shall be posted in three or more public places in the district or published in some newspaper published or having a general circulation in the county, together with a notice stating the time at which the same will be presented. If any portion of the proposed district shall lie within another county or counties, then the petition and notices shall, as above provided, be posted or published in a newspaper, published or having a general circulation in each of such counties.
“Sec. 762. When the petition is presented, the board of county commissioners shall hear it, and may adjourn the hearing from time to time, not exceeding four weeks in all. On the final hearing any person whose lands are susceptible of drainage by the proposed system, and who expresses in writing a desire to be included within the system, may upon application to the board and in its discretion, have his lands included in the district. On the final hearing the board shall by resolution establish and define the boundaries of the district as proposed in the petition or as amended as herein-, before provided, fix the number of trustees, which shall not be less than three nor more than five and who shall be residents of the district, and provide for the election of such trustees and the organization of said district as hereinafter provided.
“Sec. 763. The board shall then give notice of an election, for the purpose of determining whether or not the- proposed district shall be organized. The notice shall describe the boundaries established, and shall designate a name for the district. It shall be posted or published, as prescribed in the case of a petition, and shall state the time and place of the election and that ballots shall be cast containing the words ‘Drainage District-yes,’ or ‘Drainage District-no,,’ and the names of persons to be voted for as trustees. No person shall be entitled to vote at any election held under the provisions of this act, unless he shall be a qualified elector in the district. The board of county commissioners shall appoint the judges for the first election.”
Section 265 provides that subsequent elections shall be held biennially; and section 266 is to the effect that the trusr-tees shall hold office for two years, and also provides for their qualification by taking an oath and by giving official bonds.
Section 767 is as follows:
“Sec. 767. Within thirty days after their election and qualification, the trustees shall meet and organize as a board, and shall elect a president, a secretary, and a treasurer, from among their own number. Each of such officers shall hold office during the pleasure of the hoard. The hoard of trustees shall have power to adopt a code of by-laws governing the conduct of the business and affairs of the district as a corporation in connection with its association with individuals in and outside of the district and regulating the use of its drainage system by outsiders. It shall also have power to make and execute all necessary contracts, to employ and appoint such agents, officers and employees as may he required,, prescribe their duties and generally to perform all such acts as shall be necessary to fully carry out the purposes of this title. The board and its agents and employees shall likewise have the right to enter upon any lands to make surveys and may locate the necessary drainage works and the line for any drainage canal or canals, and the necessary branches for the same on any lands which may be deemed best for such location. It shall have the right also to acquire on behalf of said district by purchase or condemnation or other legal means, all lands and other property necessary for the construction, use, maintenance, repair, and improving of said canal or canals, drains, and works constructed (including canals, drains, or drain ditches being constructed by private owners), and all necessary appurtenances. In case of necessity for condemnation proceedings the board shall proceed in the corporate name of the district, under the provisions of the laws relating to eminent domain.”
“Sec. 772. Whenever the hoard of trustees .deems it expedient it shall have power for the purpose of constructing drains, drainage canals and other required improvements, to issue bonds of the district to run not more than twenty years and to hear interest, pay semiannually at a rate not exceeding six per cent, per annum, to he called ‘Drainage District Bonds,’ ■ and which bonds Shall not be sold for less than their par value, and the proceeds of which shall be used for no other purpose than paying the cost of construction of such drain, drainage canal or other like work: Provided, that the aggregate amount of such bonds issued and outstanding may equal but never exceed in amount four per cent, of the value of the taxable property of any such district. The said board of trustees shall by resolution provide for the issuance and disposal of such bonds and for the payment of interest thereon the creation of a sinking fund for the ultimate redemption thereof and for the date and manner of the redemption of said bonds.
Sec. 773. Whenever any such drainage district bonds shall be issued in accordance with the provisions of this chapter, such bonds shall constitute a lien upon all of the lands and improvements thereon within the boundaries of the district, and the board of trustees of said district shall from time to time as hereinafter provided levy a sufficient tax to pay the annual interest charge on such bonds, and in addition thereto such an amount as a sinking fund, which shall, in the course of events and ultimately, amount to a sufficient sum to redeem said bonds.
Sec. 774. The board of trustees shall on or before the first day of February of each year prepare a statement and estimate of the amount of money to be raised by taxation within said district for the purpose of constructing canals, drains, drain ditches and other works, and maintain the same; pay the interest upon the bonded indebtedness of the district; creating a sinking fund for redeeming such bonds; and for the purpose of maintaining and repairing drainage canals, flumes, conduits, bridges, culverts and other works within said district; and for the management and control of such drainage system'; and shall assess the entire amount needed in each year against all of the land within said district in proportion to the benefits resulting to each tract of land by the construction and maintenance of such drainage system; the said trustees shall view each tract of land within the district and shall carefully consider all of the benefits that each particular tract of land will receive from the’construction and maintenance of such drainage system and assess each tract of land in accordance with the benefits received by it. After such assessment is made up the*505 secretary of the district shall notify, hy mail each landowner of the •amount of the tax assessed upon the land owned by him within the district; and stating therein the time and place when the hoard of trustees will meet as a hoard of equalization to hear and determine complaints made against such assessment. The hoard of trustees shall meet during the month of March of each year at a time and place to he designated hy it to hear all complaints made against assessments made hy it, at which meeting the hoard shall hear all complaints made, and after a full consideration thereof, shall equalize and finally determine the assessments to he made and levied upon each tract of land within the district, and shall thereupon certify the same to the county auditor of the county within which such district is located; the county auditor shall enter the same in the tax rolls of the county; and it shall he the duty of the county treasurer to collect such taxes at the time and in the same manner that the said county taxes are collected.
Sec. 775. All drainage taxes levied and assessed under the provisions of this title shall attach to and become a lien on the real property assessed from and after the thirty-first day of August. Drainage taxes shall become due and delinquent at. the same time and shall be collected hy the same officers in the same manner as state and county taxes.
Sec. 776. At the time of computing the tax, the county auditor shall place upon the assessment roll the district drainage taxes of the several districts in the county in which drainage taxes have been levied, as certified hy the hoard of trustees.”
Section 777 relates to tbe compensation to be paid to tbe trustees, and sections 778 and 779, tbe two last sections of the act, are not material here.
We have set forth tbe principal provisions of tbe act in full, so that tbe reader may understand its purpose, and may also see just what may be done under it. In this court tbe constitutionality of tbe act is also challenged, upon tbe ground that it authorizes tbe drainage of lands for private gain, rather than for tbe public good, such
“The statutes which, have long existed in many states, authorizing the majority of the owners in severalty of adjacent meadow or swamp lands to have commissioners appointed to drain and improve the whole tract, hy cutting ditches or otherwise, and to assess and levy the amount of the expense upon all the proprietors in proportion to the benefits received, have been often upheld, independently of any effect upon the public health, as reasonable regulations for the general advantage of those who are treated for this purpose as owners of a common property.”
In 10 A. & E. Ency. L. (2d Ed.), 226, in discussing the principles upon which drainage statutes are upheld by the courts, it is said:
“And statutes, such as have been enacted in several states, authorizing a designated proportion or number of the owners of adjacent swamp or overflowed land to institute proceedings whereby the whole tract may be drained and the expense thereof assessed upon all the proprietors in proportion to the benefits received, have been upheld, independently of any effect upon the public health, as reasonable regulations for the general advantage of persons having a common interest in the proposed improvement.”
The doctrine is further discussed and applied in Wurtz v. Hoagland, 114 U. S. 612, 5 Sup. Ct. 1086, 29 L. Ed. 229, and also by Mr. Justice Pechham, in Fallbrook, etc, Dist. v. Bradley, 164 U. S. 163, 17 Sup. Ct. 56, 41 L. Ed. 369. In the case of Tidewater Co. v. Coster, 18 N. J. Eq. 531, 90 Am. Dec. 634, Mr. Chief Justice Beasley, in closing the opinion, clearly and tersely states the distinction between laws wherein the state is made the prime mover in the drainage of lands to promote the public health, and laws through which the state, by virtue of its police power, authorizes the owners of swamp or overflowed lands to improve, by a system of drainage, the cost of which is met by levying assessments upon the lands benefited in proportion to' the benefits. The constitutionality of laws of the. latter class is also discussed and upheld in the case of State v. Blake, 35 N. J. Law, 208, and under the same title in 36 N. J. Law, 442.
The only other objection, which is the serious one in the case, is the one that the act in question permits private property to be taken without due process of law. This contention rests upon the fact that in forming drainage districts the law provides for no means by which a landowner may have a hearing and determination of the questions of whether his lands are subject to improvement, or can
It is not always easy to determine whether a law under which assessments may be levied, on private property for its improvement, or which authorizes the property to be taken or affected for certain purposes, violates the provisions of the federal Constitution, and in this case the Constitution of this state, which provides that no one “shall be deprived of life, liberty, or property without due process of law,” nor, in view that the term is both flexible and elastic, is it easy to define it. Hr. Justice Field, in Hagar v. Reclamation District, 111 U. S. at page 108, 4 Sup. Ct. at page 667, 28 L. Ed. 569, in referring to this subject, says:
“It is sufficient to observe here, that by ‘due process’ is meant one which,, following the forms of law, is appropriate to the case, and just to the parties to be affected. It must be pursued in the ordinary mode prescribed by the law; it must be adapted to the end to be attained; and wherever it is necessary for the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought. The clause in question means, therefore, that there can be no proceedings against life, liberty, or property which may result in the deprivation of either, without the observance of those general rules established in our system of jurisprudence for the security of private rights.”
Iu giving legal effect to the foregoing principle in cases like tbe one at bar, it is not necessary that a hearing be bad at any particular stage of the proceeding by which rights may be affected, or that the hearing be had before a regularly constituted court of justice; but it is necessary that a hearing be given at some time, and that the same be had before some officer, tribunal, board, or court to whom the person whose property is affected may present- his evidence, objections, and arguments, to the end that the officer, tribunal, board, or court may be enabled to fairly and intelligently pass upon and determine the questions presented for decision. These principles are fully illustrated and applied in the follow-in cases: Hagar v. Reclamation Dist., 111 U. S. 701, 4 Sup. Ct. 663, 28 L. Ed. 569; Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112, 17 Sup. Ct. 56, 41 L. Ed. 369; Paulsen
The question therefore arises, did the respondents have an opportunity to be heard before a competent tribunal of any kind, or at any time before the tax lien was established against their property at which they were authorized to have the question determined whether their property should be held liable for any amount of tire proposed assessment which was levied for the purpose of constructing the drainage system? As will be seen, section 761 provides that before the petition for the formation of a district is presented notice of its presentation shall be given by publication; and section 762 provides that a hearing be had upon such petition. The difficulty, however, is that the commissioners are given no power — in fact, the power is expressly withheld from them — to determine what lands may be benefited by the proposed improvement, and hence what lands should be included within the boundaries of the district, except as to such lands as are susceptible of drainage by the proposed system, which are asked to be included by the owners thereof. The inquiry upon the hearing provided for, therefore, is limited to the latter question.
When the law as it was originally adopted (Sess. Laws 1896, p. 573) and thereafter revised by the code commissioners (N. S. 1898, sections 760 to 779, inclusive) is examined, it at once becomes clear why a hearing was provided for in the original act. Until the law in question was amended in 1905 (Laws 1905, p. 233), any person whose lands were included within a proposed drainage system or district had ample opportunity to be heard upon the question of whether his land was or was not benefited by the proposed drainage, and hence whether the same should be taxed to pay for the same. The board of commissioners, under the law as originally passed, had ample power to determine and fix the boundaries of the proposed district,. and to exclude therefrom all lands that in their judgment could not
There is a more serious objection still to the hearing provided for by this section. As we have pointed out, section 762 provides that no person can qualify as trustee, unless he is a freeholder within the proposed drainage district. Every trustee, as a landowner, is therefore directly interested in any assessment that will be made. An objecting landowner is therefore given recourse to a tribunal or body that is directly interested in the contemplated improvement, as well as in the assessment made to pay therefor. Although it be conceded, as no doubt it should be, that the trustees under the law in question are public officers, yet this cannot overcome their interest in the assessment which they are called to pass upon. The tribunal provided for by this section is therefore an interested one, and, to say the least,' is not one before which a hearing can be considered due process of law.
When we come to examine section 772, it becomes clear why the powers of the trustees are limited by section 774. Before any hearing provided for by section 774 is had, or may become necessary, district bonds of the drainage district may have been issued as provided by section 772, and these bonds “constitute a lien upon all the lands and improver ments thereon within the boundaries of the district.” A lien is therefore established upon all t'he lands within the district as the same was formed when the commissioners finally adopted the petition, aid the trustees have no power under section 774, or under any other, to modify or affect in any way this lien.. It should not be overlooked in this
But it is further contended that the formation of a drainage district, and defining the boundaries thereof, is a legislative or governmental, and not a judicial, function; that the legislature may itself determine and fix the boundaries of drainage districts, and therefore may, under certain circumstances, delegate this power. The courts have frequently held that such is the law. (See Tyson v. Washington County, 78 Neb. 211, 110 N. W. 634, 12 L. R A. [N. S.] 350, and Fallbrook Irr. District v. Bradley, 164 U. S. 166, 17 Sup. Ct. 56, 41 L. Ed. 369 et seq., and eases there referred to.) Nor do we question the doctrine that in case the legislature determines and fixes the boundaries of drainage districts, or, when the power is delegated to some board or governmental
The nearest approach to a law like ours, in so far as forming districts is concerned, is found in California, and the particular feature of forming or organizing districts is ably discussed by Mr. Justice Peckham, in Fallbrook Irr. Dist. v. Bradley, supra. The California act is there also set forth. It is very clearly pointed out by Mr. Justice Peckham m that case that, where a district is authorized to be created for the improvement of lands by drainage or otherwise, as is the case under the law in question, the question of whether any particular land is benefited or not, and hence should be included within or excluded from the district, is a question of fact, which must be determined by some proper board dr tribunal. The proposition is well stated by Mr. Justice Peckham in that case in the following words:
“The legislature by this act has not itself named any irrigation district, and, of course, has.not decided as to the nature and quality of any specific lands which have been included in any such district. It has given a general statement as to what conditions must exist in order to permit the inclusion of any land within a district. The*514 land which, can properly he so included is, we think, sufficiently limited in its character by the provisions of the act. It must be susceptible of one mode of irrigation, from a common source and by the same system of works, and it must be of such a character that it will be benefited by irrigation by the system to be adopted. . '. . The question whether any particular land would be thus benefited is necessarily one of fact. The legislature, not having itself described the district, has not decided that any particular land would or could possibly be benefited as described; and therefore it would be necessary to give a hearing at some time to those interested upon the question of fact whether or not the land of any owner which was intended to he included would he benefited hy the irrigation proposed. If such a hearing were provided for by the act, the decision of the tribunal thereby created would be sufficient.” (Italics ours.)
Wbat was said by Mr. Justice Peckham of the law there in question is manifestly applicable to the law now under consideration. It is clearly pointed out in that case that in view that the legislature of California had left it to the board of county commissioners to- determine, upon a hearing by them, what particular lands would or could be benefited by the proposed improvement, and by 'that means to determine and fix the boundaries of the proposed district, that both the hearing and the tribunal were sufficient to meet the objection of the landowner that in including his land within the district, and in assessing it in proportion to the benefits^ the same was taken without due process of law. If the legislature of this state in amending the law in question had preserved the right to be heard, to the landowners whose lands are included within the drainage district in question, before some competent tribunal, which hearing could have been had at some time before the tax lien was irrevocably established, or before the lands could have been sold for delinquent assessments upon the question of whether their lands were benefited by the proposed drainage district or system, or not, and if so benefited whether the assessments in question were just and equitable, when compared with the assessments of other lands within the district similarly situated, then the question of due process of law could not arise. As the law now stands, however, we are firmly of the opinion that this case comes clearly
In arriving at the conclusion reached, we have not been unmindful of the salutary rule that laws adopted by the legislature should not, except for the most cogent reasons, be declared invalid, and that, unless it is quite clear that a law is contrary to some constitutional provision, it should be upheld. The law in question has been so amended, however, that it no longer meets the objections now urged against it, and for that reason cannot be enforced in its present form. As we have already pointed out, however, the statute in question is not objectionable for the reason that drainage is permitted without showing that the same is necessary to improve or benefit the public health. Drainage statutes like the one before us, like irrigation statutes, are based upon the theory that lands, otherwise useless, may be reclaimed and devoted to a useful purpose. In thus reclaiming waste lands, the owners are directly, and the public or the state is indirectly, benefited. Hoagland v. Wurtz, 41 N. J. Law, 175. By such laws it is not intended, nor do we hold, that they may be used for the purpose of merely making lands already used for one agricultural purpose available for another and different agricultural purpose; but, as already stated the statute may be invoked only for the purpose of reclaiming waste, overflowed, or swamp lands. Public health is no more an element in such a. statute than it is in a statute authorizing'the formation of irrigation districts by a certain number of arid landowners to reclaim such lands. The-purpose of both statutes is the same, namely? to reclaim waste lands, and in that way benefit both the owners and the public. Such laws are salutary and should he reasonably construed, and, unless violative of some ■fundamental or constitutional right, should be upheld. In
The law may be easily amended so as to meet this defect. This may be done in several ways. The right may be given to the landowners to have a hearing before the board of county commissioners before the boundaries of a drainage district are established; or the right to have a hearing upon the latter question may be given in an action where the organization of a district may be litigated; or the right to a hearing upon this question may be permitted at the time hearings upon assessments are given. As we have pointed out, however, these hearings should not be before the trustees of the district. While the trustees may no doubt make the assessment, they should, after making it, be required to report the same forthwith to the county commissioners who should at once fix a time and place for a hearing, and give the interested parties notice and an opportunity to- be heard, upon the question of whether the amount is fair and just. In this way every landowner will be given the right to be heard before some competent and disinterested tribunal, and in such event cannot complain that his property is being taken without due process of law.
In view of the foregoing, there is no escape from the conclusion that the judgment of the district court should be affirmed, with costs to respondents. It is so ordered.
Concurrence Opinion
I concur in holding the act unconstitutional for the reason stated that no opportunity is given objecting landowners to be heard. I am of the opinion that the act is also invalid, because the purpose for which drainage districts may be organized, with powers conferred on them to forcibly take private property by taxation, is not restricted or confined to a public use or benefit, or a purpose in which the public are
Nor is there anything made to appear from the alleged facts, either in the complaint or in the answer, that the drainage district in question was organized to reclaim waste lands for any public good or benefit, or that the powers exercised by the organization were for such purpose. To the contrary, from such alleged facts, it appears that the district was organized, and that those holding title to a major part of the land included' in the proposed district attempted to compel those holding title to less than the major part, by forcible taxation, to drain their lands for a mere private benefit or advantage of the landowners, independently of any question of a public-use or benefit.
For these reasons, I concur in the judgment.
