70 Wis. 258 | Wis. | 1887
This is a proceeding instituted under ch. 442, Laws of 1885, which provides a system for the drainage and reclamation of lands in Dane county. A petition was presented to the circuit court of the county, signed on behalf of the common council of the city of Madison, George K. Bryant., and more than forty other persons, who represent that they are owners of wet and overflowed lands in the county, and setting forth the matters required by the law to be stated in the petition, and asking that a board of commissioners be appointed for the purposes prescribed. A demurrer was interposed to this petition by the owners of the mill dam and water power at the outlet of Lake Men-dota, on the ground that the law in question was unconstitutional and void; which demurrer was sustained, and the petition dismissed.
The only question which we have to consider on this appeal is whether the law is in conflict with the provisions of our constitution. It is said the learned circuit court held that the law violated sec. 23, art. IY, which declares that the legislature shall establish but one system of town and county government, which shall be as nearly uniform as practicable. Oh. 54, E. S. 1878, provides for a system of drainage which is to be carried out or executed by town and county officers, and it is insisted that ch. 442, Laws of 1885, vests the powers as to drainage in a different body, over which neither the town nor county authorities have any control. This, it is said, is a plain departure from the system of town and county government which prevails elsewhere in the state. It may admit of doubt, as argued by
We do not think ch. 442 comes within the decisions in State ex rel. Peck v. Riordan, 24 Wis. 484; State ex rel. Keenan v. Milwaukee Co. 25 Wis. 339; State ex rel. Walsh v. Dousman, 28 Wis. 541; McRae v. Hogan, 39 Wis. 529;
The law under consideration confers enlarged powers for drainage, and brings the whole subject under the control and supervision of a different tribunal than the one provided in the general law. It certainly seems to furnish all necessary restrictions to guard against abuse and oppression in its administration, as an examination of its provisions will show. The petition must be signed b}^ twenty-five or more owners of wet or overflowed lands in the county, who are of the opinion that such lands will be benefited by the proposed system of drainage, subject to the assessment provided; and who shall also be of the opinion that the public health and Avelfare will be promoted thereby; and who desire to institute the proceeding for the drainage and reclamation of their land, “ either by constructing, extending, opening, enlarging, widening, straightening, or deepening watercourses, or removing natural or artificial obstructions therefrom, or by permanently lowering the ordinary level of the water in any or all of the six lakes ” mentioned. The petition must “ specify, in general terms, the nature of the improvement desired to be made;” give
The filing of the petition shall be deemed the commencement of an action in said court, affecting all lands or other property that may be benefited or damaged or interfered with or taken for public use by virtue of the act. Upon such filing, the court or judge makes an order prescribing the notice to be given to all parties interested of the hearing of the petition; and, upon proof being made of the giving of the required notice, any persons whose estates or interests are to be affected by the proceeding may show cause against the prayer of the petition. The court or judge hears the parties interested, and “determines and ad-
If no sufficient cause is shown against granting the prayer of the petition, and if it shall be made to appear that such proposed system of drainage will not permanently reduce the main level of the waters of Lake Monona below a point therein named, the court or judge, if he deem proper, may make an order appointing five disinterested and competent freeholders as commissioners to act in the premises as directed by the act. The commissioners take and subscribe an oath of office; thereupon the court orders them to take into consideration the petition; and it is their duty then “ to make personal inspection of all lands, streams, drains, lakes, or ponds affected by such petition, and, if the expenses of a survey be first guaranteed to them, to cause a survey to be made to determine the feasibility of the proposed work, and the best manner of doing it, and the lands to be benefited or damaged thereby; and the commissioners shall report whether, in their judgment, any and what drainage, opening, deepening, widening, straightening, altering, or extending of drains, streams, lakes, or watercourses is necessarj7, practicable, and of public utility and benefit in excess of any damage to the public or individuals which may thereby be caused, and fully report in what such benefit consists. If they report in favor of such work, they shall determine and further report the best and cheapest method of accomplishing it, its
Upon the filing of this report, the court causes notices to be given to persons mentioned in the report as owners of land or other property affected or charged assessments in such report, with the amount thereof, and after a specified time the court hears any remonstrances or objections which may be made to the report, or that any lands are assessed too high or too low or improperly, or that lands are assessed which ought not to be, or that lands should be assessed which are not, or, by any person to whom damages are assessed, that they are inadequate, or, by any person or municipality, that the public will not be benefited by the work proposed, or that the surface of the water of Lake Monona will be reduced by such drainage to a point below the level fixed by the act.
At the time fixed for the hearing of the objections, the court, on the demand of any person assessed for benefits or
The court directs the manner of doing the work, the commissioners having power to divide it into parts, and to receive proposals for the performance of the whole or any part of the work. Plans and specifications for the work are to be prepared under the direction of the commissioners, and are to be kept, subject to inspection by all persons interested, at some place in the city of Madison to be designated by the court. After the confirmation of the report
By the seventh section it is provided, if the commissioners, in their preliminary examinatibn therein provided for, shall find it necessary to condemn, remove* or reduce any dam lawfully maintained, or impair any easement or right of flowage or other right, they may negotiate with the owner for the amount to be paid for such purpose, and report such agreement with their report. If they cannot so agree, they shall make their award of damages therefor as therein provided. Upon the confirmation of the report, and in the prosecution of the work, it is provided that no dam shall be removed or reduced, or- private property invaded or taken, until the damages agreed upon, awarded, or finally adjudged for such taking, removal, or destruction shall have been deposited with the clerk of the court for the benefit of the owner or persons entitled thereto.
These are the main provisions of the act which it is necessary to notice. It will be seen that the law vests large discretion and power in the circuit court, or presiding judge thereof, over the proposed system of drainage. The court determines whether it will be one of public utility beyond
Courts have generally sustained such laws upon some ground, and the law in question may well stand upon the police power. An owner upon whose land an assessment is made has the right and opportunity to contest its fairness and justice in a court where a jury trial can be had before the assessment is confirmed; and when it is confirmed by the circuit court he has the right to appeal the case to this court as in ordinary actions. Further, to guard against all oppressidn, the law provides, if a majority of the owners of the land to be charged with the expense of the proposed work join in a remonstrance in opposition to the system of drainage described in the petition and report of commissioners, the court shall dismiss the proceeding. This feature was commented on by the learned counsel for the respond
A number of objections were taken to the law by the learned counsel for the respondents. lie insists that the act attempts to confer upon the court the power of making assessments, which, he says, is not a judicial power. The court does determine whether the proposed work should be undertaken, which, in view of the matters • pertaining to that question, would seem to call for the exercise of a judicial function. Such judicial determination is the foundation of the assessment collected by the taxing officers when not paid. But we cannot see wherein the power exercised differs from that exercised by the court when it stays proceedings in an action to avoid a tax until there is a reassessment of such tax. Iu the latter case, there has been no question as to the right of the court to act." It cannot fairly be claimed in this case that the court directly exercises the power of taxation. It is true, it may initiate a proceeding which will result in local charges or assessments upon land; but this it does in many cases, as where it sustains street improvements or works for the improvement of harbors and public waters. See Soens v. Racine, 10 Wis.
The same counsel further objects to the law because the city of Madison, as a municipality, is liable to be charged with a debt for the work when it may not in any way receive any benefit from it. We do not so understand the law. The law authorizes charging a city or town with a part of the expense when such city or town derives a public benefit from the whole or any part of the work. Where the streets or highways of a city or town are particularly benefited by the improvement, there is surely no injustise in charging such city or town with an amount equal to such benefit. The city or town can appear and contest the
These remarks dispose of the material objections taken to the law. We are of the opinion that it is a valid act, and that the demurrer to the petition should have been overruled.
By the Oourt.— The order sustaining the demurrer is reversed, and the cause remanded for further proceedings.