46 Neb. 411 | Neb. | 1895
This was a proceeding by the appellee before the district court for Keith county under the provisions of section 59 et seq. of the act approved March 26, 1895, known as the “District Irrigation Law,” seeking a confirmation of steps resulting in the formation of the Alfalfa Irrigation District, and the issuance thereby of certain bonds intended to promote the general purposes of the act. The appellants, who are taxpayers within said district, filed an answer, to which more particular reference will hereafter be made, but which puts in issue substantially all the allegations of the petition. A decree having been entered in accordance with the prayer of the petition, the cause was removed into this court by appeal. The objections urged by the appellants in this court are substantially as follows:
1. The district irrigation law conflicts with section 1, article 3, of the constitution, (1) since it confers on county boards legislative powers in the creation of corporations; (2) because it authorizes the levy by irrigation districts of taxes upon real estate without limitation.
2. Said act conflicts with sections 3 and 21, article 1, of the constitution of this state, and with section 1 of the fourteenth amendment of the constitution of the United States, by authorizing the appropriation of the property of non-residents without due process of law.
3. It conflicts with the constitution of the United States, by authorizing the appropriation of private property without the owner’s consent to a mere private use.
4. It violates section 1, article 9, of the constitution of this state, by providing a system of taxation which ex-
5. The bonds in question are invalid, for the reason that they are required to be attested by a seal, whereas the said act makes no provision for the procuring or use by such districts of an official seal.
6. Said district was not legally organized.
7. The issuance of said bonds was not authorized by the requisite vote, and the election mentioned in the petition was accordingly illegal and void.
The first, second, third, and fourth objections challenge the validity of the district irrigation law, and may, for convenience, be considered together. It should, as preliminary to an examination of the subject, be remarked that the act in question is in all essential features copied from the district irrigation law of California, in which state it had, by decisions hereafter cited, received a settled construction long before its adoption by us, and its enactment in this state must be construed as a legislative approval of the interpretation there given it. (Clark v. Cambridge & Arapahoe Irrigation & Improvement Co., 45 Neb., 798; Paxton & Hershey Irrigating Canal & Land Co. v. Farmers & Merchants Irrigation & Land Co., 45 Neb., 884.) It was held in the cases cited that the reclamation of the arid lands of the state is, in a constitutiohal sense, a public use, .to promote which the legislature may authorize the acquiring, by condemnation, of the right of way over private property by irrigating companies. It is not necessary at this time to examine the grounds .upon which those cases rest, as the doctrine there asserted is not assailed in the able argument of counsel for appellants. It is said, however, that the district irrigation law was not involved in those cases and that the principle by which they are controlled can have no application to the case at bar. Since we are unable to concede that proposition, an examination of the act mentioned, and some of the cases to which refer
The act provides for the creation of irrigation districts comprising property susceptible of irrigation from the same source and by means of the same system of works. It requires a petition to be filed with the county board, signed by a majority of the resident freeholders, who are qualified electors, and who own a majority of the whole number of acres of land belonging to resident electors, particularly defining the boundaries of the proposed district. The county board may, on the final hearing of the petition, and after notice therof to all parties interested, define the boundaries, making such changes thereof as may be deemed proper, but including therein no lands which are not susceptible of irrigation by the same system. The question is then, at a special election, submitted to the electors of the proposed district who are also the owners of real estate therein. Upon the adoption of the proposition, a record thereof is to be filed in the office of the county clerk of each county in which any portion of the land included in said district is situated, and immediately thereafter the county board shall call a special election, at which there shall be chosen a treasurer, an assessor, and three directors. Provision is made for regular meetings of the directors, whose duty it is to manage and conduct the business and affairs of the district, to make and execute all necessary contracts, establish equitable by-laws, rules, and regulations for the distribution and use of water, and to perform all such acts as may be necessary to fully carry out the purposes of the act. Power is also conferred upon said board to acquire, by purchase or condemnation, all lands, waters, and other property necessary for canals, reservoirs, and aqueducts, and to take conveyances therefor. Provision is made for the issuing of the bonds of the district when authorized by a vote of a majority of the electors having the qualifications in said act prescribed, not exceeding the
The foregoing synopsis is necessarily incomplete, but it serves to illustrate the general scope and purpose of the measure under consideration.
The validity of this species of legislation was first called in question in Turlock Irrigation District v. Williams, 76 Cal., 360, in which it was held, under constitutional provisions substantially similar to ours, that the districts contemplated by the statute of that state are quasi-public corporations in the sense that the purpose of their organization is the general public benefit. It is further said that it is not essential to the' validity of taxes contemplated by said act “that the method of their assessments and their collection adopted must be assimilated to and follow exactly the mode provided in the constitution for the assessment and collection of taxes for general state purposes.” In Central Irrigation District v. De Lappe, 79 Cal., 351, the constitutionality of said act was again affirmed, and the' rule asserted that-proceedings for the formation of irrigation districts- should be liberally construed in order to give effect
We cannot, in this connection, forbear to quote at some length from the very able and convincing opinion of Harrison, J., in the case last cited, viz.: “ It is contended that thé act is unconstitutional for the reason'that it is a delegation of the legislative power to create a corporation. If by this is meant that only the legislature can create such corporation, the answer is that the constitution prohibits such action. If it is meant that because the corporation is not ‘created’ until the voters of the district have accepted the terms of the act, the answer is, that such proceeding is in direct accord with the principles of the constitution-Having the power to create municipal corporations, but. being "prohibited from creating them by special law, the only mode in which such corporations could be created under a general law would be by some act on the part of the district or community seeking incorporation, indicative of its determination to accept its terms. As the constitution has not limited or prescribed the character of such general law, its character and details are within the discretionary power of the legislature. We know of no more appropriate mode of such indication than the affirmative vote of • those who are to be affected by the acceptance of the terms of the act.; * * * Inasmuch as there is ne
We are aware that the subject under consideration has by federal tribunals been likened to questions of commercial law, depending for their solution, not upon the decisions of a single state or tribunal, but upon general principles common to all courts. As said in Olcott v. Supervisors of Fond du Lac County, 16 Wall. [U. S.], 618, cited in sup
In the opinion of Mr. Justice Miller in Davidson v. New Orleans, supra, is found an exceedingly comprehensive discussion of the subject, concluding as follows: “There is wisdom, we think, in the ascertaining of the intent, and application of such an important phrase in the federal constitution by the gradual process of judicial inclusion and
The conclusions we reach from an examination of the foregoing authorities are, first, that the term “due process of law” relates primarily to the remedy or means of redress where property rights are invaded rather than to matters of substantive law, and that the provision of our statute for a hearing, upon notice, of all questions pertaining to the organization of irrigation districts .and the imposition by them of taxes and assessments fully satisfies the requirements of the state and federal constitution; second, the end and purpose of said act is, in a constitutional sense, public, and, therefore, resting in the wisdom and discretion of the legislature. The reasoning, based upon the decision in Bradley v. Fallbrook Irrigation District, must accordingly be rejected.
The objection to said act on the ground that it authorizes the creation by county boards of municipal corporations in violation of section 1, article 3, of the-constitution, is fully met by the California cases cited holding that irrigation districts are public and not, strictly speaking, municipal corporations, and that their officers are agents of the state.
To the proposition that the.authority conferred upon irrigation districts to levy taxes without limitation upon the property within their boundaries, is an invasion of the provisions of the state constitution, it may be answered: First —That the power of taxation is an attribute of sovereignty having its source in the necessities of organized society. That power has, by the people, been committed to the discretion of the legislature,- and the limits within which, it
The only other objection which calls for notice is that by which the validity of the bonds is assailed on the ground that the act under consideration does not expressly authorize the procuring of a seal by irrigation districts. That contention is based upon the ruling of this court in Larson v. Dickey, 39 Neb., 463, and Dickey v. Paterson, 45 Neb., 848, that inasmuch as no provision is made by law for the use by county treasurers of an official seal, there exists under the present revenue law no authority for the execution by them of valid tax deeds. Our first impression, it must be confessed, was strongly in favor of the soundness of that argument; but upon reflection we are satisfied that the cases cited rest upon principles entirely different from that which must control in this. By reference to Larson v. Dickey it will be observed that the provision there under
It follows that the decree of the district court is right and must be
Affirmed.