182 Ind. 36 | Ind. | 1914
Appellant sued in the lower court to enjoin proceedings instituted under the act approved March 10, 1913 (Acts 1913 p. 433, §§8233b-8233el Burns 1914), to construct and maintain a system of drainage and reclamation of lands from floods, consisting of a levee, seven drains, and two flood gates. When the suit was brought the proceedings had reached a stage where the county commissioners had appointed appraisers as they were authorized to do by §13 (§8233n Burns 1914) of the act. The drainage company, the individual incorporators of it, the petitioners for the appointment of appraisers, the appraisers and the board of commissioners were all made parties defendant. A several demurrer by each of these defendants to appellant’s complaint was sustained and, upon his refusal to plead further, the court rendered judgment against him for costs. From this judgment he appeals and assigns as error the ruling of the court on demurrer to his complaint.
The complaint alleged in substance that certain of the appellees took steps under the act of 1913, supra, to organize the appellee drainage company and thereafter through its board of directors filed with the auditor of Clay County a petition addressed to the board of commissioners of the coun
The grounds of demurrer were that the court had no jurisdiction of the appellees, or of the subject-matter of the action and that the complaint did not state facts sufficient to constitute a cause of action.
Counsel for appellant in the points stated in his brief asserts with the broadest generality that the act in question violates many constitutional provisions. We have found great difficulty in finding in appellant’s brief the specific application of these general assertions of unconstitutionality to particular provisions of the act. So far as we are able to discover constitutional objections to particular provisions of the act, they are given consideration.
The first of these in logical order is the claim that the title of the act is multifarious and at the same time not broad enough to cover the tribunal provided in the body of the act for determining the question of public utility and for assessing benefits and damages and that the act is therefore rendered void by §19, Art. 4 of our State Constitution which provides that every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title. A glance at the title shows at once that this claim is unfounded. State v. Closser (1913), 179 Ind. 230, 99 N. E. 1057, and eases there cited.
The contention is presented that the act is, in certain of its material and essential provisions, in contravention of the clauses of the 5th amendment to the Federal Constitution forbidding that one be deprived of property without due process of law and the taking of private property for public use without just compensation. This
It is further claimed, the act violates the provisions giving the constitutional guaranties of due process of law for the protection of personal and property rights found in the 14th amendment of the Federal Constitution and in §12 of the Bill of Rights (Art. 1, §12), of our State Constitution. And in connection with this claim it is contended that the act also infringes that provision of the State Constitution found in §21 of the Bill of Rights (Art. 1, §21, Constitution), that no man’s property shall be taken by law without just compensation, and, except in case of the State, without such compensation first assessed and tendered. The, constitutional guaranties of personal and property rights are not absolute, for all private rights how-' ever fundamental are held and enjoyed by individuals as members of organized society subject to the paramount right of the State, the embodiment of society, to appropriate them or modify them when actual necessity or the public welfare requires it. This dominant right of the State is ordinarily classified under three heads, the police power, the power of eminent domain and the taxing power. They are all incident to the sovereignty of the State and in the structure of government are committed to the legislative department. The police power controls and regulates the enjoyment of personal and property rights on the principle that they must be so exercised as to permit an equal enjoyment in others. It is the power to legislate for the common welfare and under it, to that end, persons and property are subjected to restraints and burdens to secure the general comfort, health and prosperity. In its broadest sense it has aptly been said to be the residual power
It has long been settled in this State that statutes of the character of the one before us for the drainage or protection of wet lands or lands subject to overflow are enacted by authority of the police power. O’Reiley v. Kankakee Valley Draining Co. (1869), 32 Ind. 169; Zigler v. Menges (1889), 121 Ind. 99, 22 N. E. 782, 16 Am. St. 357; Gifford Drainage Dist. v. Shroer (1896), 145 Ind. 572, 44 N. E. 636; Lake Shore, etc., R. Co. v. Clough (1914), post 178, 104 N. E. 975, 105 N. E. 905. See, also, Coster v. Tide Water Co. (1866), 18 N. J. Eq. 55; Hagar v. Reclamation Dist. (1884), 111 U. S. 701, 4 Sup. Ct. 663, 28 L. Ed. 569; Wurts v. Hoagland (1885), 114 U. S. 606, 5 Sup. Ct. 1086, 29 L. Ed. 229; Fallbrook Irrigation Dist. v. Bradley, supra; McGehee, Due Process of Law 258, 265; Freund, Police Power §§441, 442; 5 Ency. U. S. Sup. Ct. Rep. 612. The application of the police power to the formation of drainage and reclamation districts is on the theory that parcels of land may be so situated toward each other as to create a mutual dependence and a natural community
As the legislature, exercising the powers of sovereignty, has the power to drain and reclaim swamp and overflowed lands directly or by its own agents, it may delegate the authority to local government subdivisions of the State, or to drainage districts or companies created for that purpose, and these companies or districts are held to be qiicm-public corporations. 14 Cyc. 1026, and cases there cited; State, ex rel. v. Board, etc. (1902), 60 L. R. A. 161, 169, note.
Our conclusion is that the act of 1913, supra, is valid. This being so there was jurisdiction to proceed under its provisions and the demurrer to appellant’s complaint was properly sustained. Judgment affirmed.
Note. — Reported in 105 N. E. 496. On the question of the right to exercise power of eminent domain for drains and sewers, see 60 L. R. A. 195. As to what is due process of law, see 24 Am. Dec. 538; 20 Am. St. 554. See, also, under (1) 36 Cyc. 1037; (2) 8 Cyc. 877; (3) 8 Cyc. 1094; (4) 8 Cyc. 864; (5) 14 Cyc. 1025; 8 Cyc. 868; (6, 7) 14 Cyc. 1025; (8) 14 Cyc. 1025; 8 Cyc. 831, 837; (9) 14 Cyc. 1062, 1033; (10, 11) 15 Cyc. 841; (12) 8 Cyc. 1108; (13) 15 Cyc. 580; (14) 14 Cyc. 1035; (15) 36 Cyc. 1160; (16) 8 Cyc. 1051; (17, 19) 36 Cyc. 976; (18) 2 Cyc. 517; (20) 8 Cyc. 1126; (21) 8 Cyc. 1915 Ann. 809-21; (22) 15 Cyc. 566.