106 P. 565 | Mont. | 1910
delivered the opinion of the court.
A brief statement will suffice to indicate the points of law involved in these appeals. Plaintiffs brought their action against the county treasurer, county commissioners, and county drain commissioner of Yellowstone county, to recover certain moneys paid as taxes in the year 1907, under protest, and to restrain the collection of similar taxes in subsequent years. These taxes for 1907 were collected by virtue of Chapter 106, page 254, Session Laws of 1905, now found, as amended by the Laws of 1907, under Part III, Title 11, Revised Codes, known as the “Drainage District Law.” The Act was again amended in 1909, but neither amendment is involved in this case, the taxes, the collection of which is sought to be restrained, having been levied, by virtue of the Act of 1905, to be collected in three installments. The cause was tried to the district court of Yellowstone county, aided by a jury. Certain special findings were made by the jury, and a general verdict was returned in favor of the plaintiffs. The court set aside the general verdict, but adopted the special findings, concluded as matter of law that the defendants were entitled to prevail, and entered judgment accordingly. From that judgment, and an order denying a new trial, the plaintiffs have appealed.
Appellants preface their argument thus: ‘1 The several errors assigned, calling in question the validity of the action of the court below, may well be considered together as a whole. They are each and all based upon the proposition that the Act of the
Section 11, Article XII, of the state Constitution, reads as follows: “Taxes shall be levied and collected by general laws and for public purposes only. They shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax.” Section 14, Article III, of the Constitution, reads: “Private property shall not be taken or damaged for public use without just compensation having been first made to or paid into court for the owner.” Section 27, Article III, reads: “No person shall be deprived of life, liberty or property without due process of law.”
Section 1 of the so-called “Drainage District Law” reads as follows: “That drains may be located, established, constructed and maintained and drains and watercourses may be cleaned out, straightened, widened, deepened and extended, whenever the same shall be conducive to the improvement or reclamation of agricultural lands, public health, convenience or welfare.”
In the case of Summers v. Sullivan, 39 Mont. 42, 101 Pac. 166, this court said: “The legislative authority generally to enact these drainage statutes is derived from the police power, the power of eminent domain, or the taxing power. The proceedings under our statute are essentially those of eminent domain; and if, in obtaining a right of way for a drain across the lands of these plaintiffs, their lands will be depreciated in value by reason of the impairment of their water rights, this is one of the elements to be considered in assessing damages to them. The proceeding, in principle, is not different from the proceeding to establish a public road.” In the Summers Case the constitutionality of the statute was not questioned. As was therein indicated, the proceedings under the drainage dis
The following authorities are called to our attention by counsel for the appellants, in support of their contention that the law is unconstitutional: “Independently of express authority given by the Constitution, a state legislature cannot authorize the taking of private property for a merely private use, even upon making compensation. The doctrine of eminent domain is that private property may be appropriated to public use upon compensation being made, but it cannot be taken for strictly private purposes without the consent of the owner, whether compensation is made or not. The assertion of a right on the part of the legislature to take the property of one citizen and transfer it to another, even for a full compensation, where the public interest is not promoted thereby, is claiming a despotic power, and one inconsistent with every just principle and fundamental maxim of a free government.” (15 Cyc. 578.) “It is well settled that the legislature has no power to authorize the taking of private property for a private use, without the owner’s consent.” (Wisconsin Water Co. v. Winans, 85 Wis. 26, 39 Am. St. Rep. 813, 54 N. W. 1003, 20 L. R. A. 662.)
In the case of In re Theresa Drainage District, 90 Wis. 301, 63 N. W. 288, the court said: “It is settled law in this state that private property can be taken in invitum for a public use only. For a private use it cannot be taken. * * * It is also settled that to dig ditches or drains across the land of private owners, under an apparent legislative authority, is a taking of the lands. * * * The question presented for decision is whether the digging of the ditches and drains, and the construction of the levees and other works contemplated by the statute, is for a public use. The provision of the statute is, ‘If it shall appear to the court that the proposed drain or drains, ditch or ditches, levee or levees, or other works, is or are necessary, or will be useful for the drainage of the lands proposed to be drained thereby, for agricultural, sanitary or
In the Matter of Tuthill, 163 N. Y. 133, 79 Am. St. Rep. 574, 57 N. E. 303, 49 L. R. A. 781, the court said: “It is an ancient principle, which entered into our social compact, that the use for which private property may be taken must be a public one, whether the taking be by the exercise of the right of eminent domain, or by that of taxation. The sovereign power is incapable of conferring any right to interfere with private property except it be needed for public objects. To take land for any other than a public use, to take it from one citizen, and to transfer it to another, even for full compensation, would be to violate the contract by which the land was originally granted by the government. * * * The state Constitution, from the beginning, by authorizing the appropriation of private property for public use, impliedly declared that for any other use private property should not be taken from one and applied to the
In the case of Kinnie v. Bare, 68 Mich. 625, 36 N. W. 672, the supreme court of Michigan said, relative to a drainage law: "" ‘ Such proceedings can be authorized by the legislature only under the police power of the state. Drain laws which take from the citizen his private property against his will can be upheld solely upon the ground that such drains are necessary for the public health. They proceed upon the basis that low, wet, and marshy lands generate malaria, causing sickness and danger to the health and life of the people; that when they are of such character as to injure the health of the community, they become and are public nuisances, which ought to be abated, and the legislature has the right under the police power, inherent in every government, to protect the people from plague and pestilence, and to preserve the public health. But drainage for the purpose of private advantage, such as improving the quality of the land, or rendering it more productive or fit for cultivation, cannot be justified under the police power. Neither public convenience nor public welfare, independent of considerations of the public health, will justify the legislature in the enactment of laws for the construction and maintenance ■.of drains and the assessment of taxes therefor. It’ is evident •that where the public health is not affected by the existence of low, swampy land, the only object to be accomplished by their (drainage is the improvement of the land itself.”
In the case of Gifford Drainage District v. Shroer, 145 Ind. 572, 44 N. E. 636, the supreme court of Indiana said: “It has
We have quoted thus at length from the foregoing authorities for the reason that they lay down the rule relied upon by the appellants, and seem to illustrate the public policy of the states in which they were decided. Many eases may be found which lay down t'he general rule that the land of one person cannot be taken for the benefit of another, without his consent, even though adequate compensation be tendered. We apprehend that most of these eases relate to proceedings in eminent domain, and do not, perhaps, involve exactly the same principle as that found in cases relating to the power of the legislature to compel a land owner to pay, by taxation, for the special benefits accruing to him on account of a public improvement affecting a community. Many courts, too, have declared without reservation, as did the Indiana court in the case last cited, that drainage of lands for agricultural purposes alone would be for the purpose of private gain. If by this is meant that such would necessarily be the only purpose subserved, we cannot agree with
The supreme court of the United States, in Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112-159, 17 Sup. Ct. 56, 63, 41 L. Ed. 369, said: “It is obvious, however, that what is a public use frequently and largely depends upon the facts and circumstances surrounding the particular subject matter in regard' to which the character of the use is questioned.” The supreme court of New Hampshire, in Great Falls Mfg. Co. v. Fernald, 47 N. H. 444-459, said: “It very clearly appears that, in the legislation and practice of the province and state, it had long been recognized, and was when the Constitution was adopted, as within the general scope of the legislative power to authorize private property to be taken for the purpose of erecting and improving water power in the streams and waters of the-state, when, in the opinion of the legislature, the public good required it.” Judge Cooley, in his work on Constitutional Limitations (seventh edition), page 768, says: “The reason of the case and the settled practice of free governments must be our guides in determining what is or is not to be regarded as a public use, and that can only be considered such where the government is supplying its own needs, or is furnishing facilities for its citizens in regard to those matters of public necessity, convenience, or welfare which, on account of their peculiar character, and the difficulty—perhaps impossibility.—of making provision for them otherwise, is alike proper, useful, and needful for the government to provide.”
The supreme court of the United States, in Fallbrook Irr. Dist. v. Bradley, supra, said: “To provide for the irrigation of lands in states where there is no color of necessity therefor
In the case of Head v. Amoskeag Mfg. Co., above cited, the court said: “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, by 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 often been upheld, independently of any effect upon the
In Board of Directors v. Tregea, 88 Cal. 334-354, 26 Pac. 237, 242, it was said: “The formation of irrigation districts is accomplished by proceedings so closely analogous to those prescribed for the formation of swamp land reclamation districts that the decisions with respect to the latter are authority as to the former.”
In the case of Hagar v. Supervisors, 47 Cal. 222, the supreme court, in 1874, said: “It is said, however, that it is not within the constitutional power of the legislature to compel the petitioner to reclaim his lands at his own expense, and against his consent. But we think the power of the legislature to compel local improvements, which, in its judgment, uill promote the health of the people and advance the public good, is unquestionable. In the exercise of this power it may abate nuisances, construct and repair highways, open canals for irrigating arid districts, and perform many other similar acts for the public good, and all at the expense of those who are to be chiefly and more immediately benefited by the improvement. * * * But we need not rest our decision on the narrow ground that this is strictly a local improvement. On the contrary, the reclamation of the vast bodies of swamp and overflowed land in this state may justly be regarded as a public improvement of great magnitude, and of the utmost importance to the community.”
Again, the supreme court of California, in Turlock Irr. Dist. v. Williams (1888), 76 Cal. 360, 18 Pac. 379, said: “The results to be derived from a drainage law, and one which has for its purpose the irrigation of immense bodies of arid lands, must necessarily be the same, as respects the public good. * * * Such a general scheme, by which immigration may be stimulated, the taxable property of the state increased, the relative burdens of taxation upon the whole people decreased, and the comfort and advantage of many thriving communities sub-served, would seem to redound to the common advantage of all
Perhaps the most instructive case to be found in the books is In re Madera Irr. Dist. (1891), 92 Cal. 296, 27 Am. St. Rep. 106, 28 Pac. 272, 14 L. R. A. 755, wherein Mr. Justice Harrison said, among other things: “In determining whether any particular measure is for the public advantage, it is not necessary to show that the entire body of the state is directly affected thereby, but it is sufficient that that portion of the state within the district provided for by the Act shall be benefited thereby. * * * Those portions of the state which are subject to overflow, and those which require drainage, as well as those which for the purpose of development require irrigation, fall equally within the purview of the legislature and its authority to legislate for the benefit of the entire state or for the individual district. * * * Whether the reclamation of the land be from excessive moisture to a condition suitable for cultivation, or from excessive aridity to the same condition, the right of the legislature to authorize such reclamation must be upheld upon the same principle, viz., the welfare of the public, and particularly that portion of the public within the district affected by the means adopted for such reclamation. Whatever tends to an increased prosperity of one portion of the state, or to promote its material development, is for the advantage of the entire state; and the right of the legislature to make provision for developing the productive capacity of the state, or for increasing facilities for the cultivation of its soil according to the requirements of the different portions thereof, is upheld by its power to act for the benefit of the people in affording them the right of ‘acquiring, possessing and protecting the property’ which is guaranteed to them by the Constitution. The local improvement contemplated by such legislation is for the benefit and general welfare of all persons interested in the lands within the district, and is a local public improvement. This principle is: not contravened by the fact that it may even operate injuriously upon some of the individuals or proprietors of land within the district, or by the fact that there may be some who for personal
Regarding this ease as involving an important principle of constitutional law, and ene of peculiar interest to all of the comparatively new states of the Union, we have quoted at length-from the decisions of the courts of other states, in order to illustrate the principle seemingly running through all of the cases r that the constitutional questions involved should be decided in-the light of conditions existing in the particular state. The-public policy of the different states has been dictated by, and' formulated upon, such considerations. Montana has been a-state for a little over twenty years, and her public policy has, on many questions, not yet been indicated. It is so in the matter of the reclamation of wet or swampy lands. It will not do to say that the enactment of the law under consideration of itself indicates the policy of the state. In New York similar laws were declared unconstitutional when enacted, and, if we-correctly interpret, the policy of the state was thought to be-indicated by the decisions of the courts, rather than by the Acts of the legislature. In other words, the courts exercised the authority to declare what was, and what was not, a public use. But, as was said by Judge Hawley in the Nevada case, cited above, considerable weight should be given to the declaration of the legislature on the subject’. Our legislature has declared, by implication, that the reclamation of land, for agricultural purposes alone, may be for the benefit of the public. Coupled with this declaration is another, to the effect that reclamation for the benefit of the public health may be accomplished by the exercise-of the police power. This latter has always been the law, as we understand the cases, and the/appellants do not controvert the soundness of the principle involved. We are not advised as-to the area of swamp lands in Montana. But we feel warranted in concluding, from the fact that the legislature passed the law under consideration, that there are substantial portions, of the state which require reclamation by drainage. The members of that body, coming, as they do, from all parts of the-state, should be more conversant with the necessities of the com
Montana, for years past, has been known to the world as a great mining state, and our mining industries are still prosecuted on a gigantic scale; but we believe statistics show that ■our agricultural development in the past few years has been so great that the products thereof now exceed in value the wealth produced by our mines. While we have a gross area of almost 150,000 square miles, there are in the state great regions of mountainous country which, it would now appear, can never be cultivated. Our lands that are suitable for agricultural purposes are being settled very rapidly, and the legislative and •executive departments of the government are constantly engaged in commendable and successful endeavor to attract immigration to the state. The time has come when public policy and the welfare of the whole people seem to demand that all available portions of the state should be made productive. In the ■early days it was necessary, on account of the very limited development of our agricultural resources, to bring into the territory and state nearly all of those products of the soil which were in constant daily demand by the people. We produced large quantities of gold, silver, copper, lead, and other valuable metals, and raised great herds of cattle and sheep. The products of our mines and ranges were shipped mostly out of the state, and in return we were buyers of almost everything, save ■cattle and sheep, raised upon a farm. This system necessitated ■the expenditure of vast sums in the aggregate for transportation, and the price of farm products was correspondingly high. 'This condition affected all of the people in the state. To-day great lumbering operations are being carried on; our mines are in operation; new fields of industry are constantly being exploited ; our cities and towns are growing in population, and, in ■consequence, our home market is increasing in scope and de
The foregoing disposition of the main constitutional question raised by the appellants makes it unnecessary to consider t'he second division of their brief. Their third contention is, as we understand, that the law cannot be complied with, according to its terms, in such a way as to give persons specially assessed for benefits an opportunity to be heard before the assessment is finally made. The Act provides that the drain commissioner shall include, in his final order of determination establishing the drain, “a description of the several tracts or parcels of land to be assessed for benefits in the construction of such drain, which said tracts or parcels shall constitute the special assessment district”; he shall give ten days’ notice of the time and place of letting contracts for the construction of the drain, which notice “shall contain a description of the several tracts or parcels of land constituting the special assessment district, * * * and shall also state that at the time and place of such letting or at such other time and place thereafter to which the county drain commissioner may adjourn the same, the assessments for
The-last contention of the appellants, is that the Act is unconstitutional for the reason that it violates section 11, Article XII, su'pra, section 4, Article XII, and section 36, Article V, of the state Constitution. The latter two sections read as follows:
“Sec. 4 [Article XII], The legislative assembly shall not levy taxes upon the inhabitants or property in any county, city, town or municipal corporation for county, town or municipal purposes, but it may by law vest in the corporate authorities thereof powers to assess and collect taxes for such purposes.”
“Sec. 36 [Article V]. The legislative assembly shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere with any municipal improvement, money, property or effects, whether held in trust or otherwise, or to levy taxes, or to perform any municipal functions whatever.”
Counsel’s printed argument is that the legislature had no authority “to confer upon the drain commissioner such large and comprehensive powers.” Many cases have been called to our attention which, it is maintained, uphold the contention that the law is invalid in this regard. While we have carefully examined all of them, we shall not attempt to analyze or distinguish, but shall express our views on this branch of the case in the light of authorities which seem to us to be founded in reason and to embody correct principles of law.
We suppose it will not be questioned that a system of drainage, instituted in the interest of the public at large, that improves and makes susceptible of cultivation a large area of ground, will be of direct and peculiar benefit to the individual owners of the ground. Judge Cooley, in his work on Taxation, third edition, volume 2, page 1153, says: “Special assessments are a peculiar species of taxation, standing apart from the general burdens imposed for state and municipal purposes, and governed by principles that do not apply universally. * * * Special assessments * * * are made upon the assumption
The foregoing excerpts from the text of Judge Cooley’s work are amply supported by the authorities found in the footnotes, from some of which we have already quoted. Many others may be found in the books. We are of opinion that the authority of the legislature to provide for and compel local improvements, which in its judgment will promote the health of the whole
As our state Constitution is simply a limitation upon the powers of the legislature (see Evers v. Hudson, 36 Mont. 135, 92 Pac. 462), it necessarily follows that the general power to enact taxation laws, inherent in all government, remains in that body, in the absence of limitations found in the organic law. Where no such limitation is found, the legislative assembly has all power. We are of opinion, therefore, in the light of the great weight of authority and what seems to us to be the better reasoning on the subject, that assessments for local improvements are not prohibited by our Constitution. Recurring for a moment to the matter of the general welfare of the people, it seems to us that the ruling here expressed is for the best interests of the state at large, and conducive to the up-building of the agricultural, as well as the urban portions of the commonwealth. Any other rule of construction would result in retarding the development, not only of our agricultural resources, but of our cities and towns as well.
Again, it is contended that the legislative assembly had no authority to confer upon the county drain commissioner the
Having decided that the legislature had the power to provide for a system of drainage for the purpose of reclaiming agricultural lands, when such drainage is conducive to the general public welfare, and that the special assessments therefor are not taxes, in the sense in which that word is used in the Constitution and general statutes, there must of necessity be some legal method of carrying forward the legislative will that such law should be put into useful operation. This law provides that upon filing the application for the drain with the commissioner, he shall first examine the route of the proposed drain, and determine whether in his opinion it is necessary and conducive t'o the improvement or reclamation of agricultural lands, public health, convenience, or welfare that the application should be granted. And “if within twenty days after the making of such first order of determination all the persons through whose lands the proposed drain is to pass, shall not have executed a release of the right of way, and all damages on account thereof, the county drain commissioner shall, as soon as practicable, make application to the district court # * 0 for the appointment of three disinterested commissioners * * * to determine the necessity therefor and for the taking of private property for the use and benefit of the public, for the purpose thereof, and the just compensation to be made therefor.”' These commissioners “shall be sworn *■ * * to well and truly determine the necessity for such drain and the taking of private property for the use and benefit of the .public for the pur
No constitutional provision has been called to our attention which, in our judgment, in any way limits the general power of the legislative assembly to enact laws, and we therefore hold that the court below was correct in declaring this law valid.
The judgment and order appealed from are affirmed.
Affirmed.