182 Iowa 60 | Iowa | 1916
— The district is made up of farm* lands and part of the town of Kamrar, and includes a total area of about 2,200 acres, through the east part of which runs appellant’s right of way, for a distance of about 1% miles. The right of way proper is 100 feet wide. The station grounds are 2,000 feet in length, and, according to the scale of the plat submitted by appellant, are 300 feet wide, or, as stated by counsel, 260 feet. In its natural condition, the land, while not hilly, is uneven, alternating frequently between dry elevations and tracts of wet or swampy character, the whole constituting an area to receive material benefit by drainage. The proceedings for organizing the drainage district were initiated under Chapter 2-A
If the assumed premises be correct, then the objection is sound; for, under our system of government, a person may not be deprived of the benefits of due process of law for the protection of his personal and property rights. The question presented is not a new one, but we think it clearly, demonstrable that the argument in support of the objections misapprehends the force and effect of the statute, as well as of our previous decisions thereon.
“As respects taxation the authority of the legislature is limited only by the constitution and the nature of taxation itself. It was therefore competent for the legislature to give this final and conclusive effect to the determination of the common council, that is to say, it was competent for the legislature to enact that their determination as a part of the machinery of taxation should be final and conclusive as respected the question whether a proposed local improvement was of such character that the amount of taxes necessary to be raised for the expense of making it would exceed the special benefits.”
In Spencer v. Merchant, 125 U. S. 345, the Supreme Court of the United States lays down the rule as follows:
“'The legislature, in the exercise of its power of taxation, has the right to direct the whole or a part of the expense of a public improvement, * * * to be assessed upon the owners of lands benefited thereby; and the determination of the territorial district * * * is within the province of legislative discretion (citing Willard v. Presbury, 14 Wall. (U. S.) 676; Davidson v. New Orleans, 96 U. S. 97; Mobile County v. Kimball, 102 U. S. 691; Hagar v. Reclamation District, 111 U. S. 701).”
To the same effect, see Nottage v. City of Portland, 35 Ore. 554; Wilson v. City of Salem, 24 Ore. 508; Williams v. Eggleston, 170 U. S. 304, 311. In the last cited case, it is said:
“Neither can it be doubted that, if the state constitu*67 tion does not prohibit, the legislature, speaking generally, may create a new taxing district, determine what territory shall belong to such district and what property shall be considered as benefited by a proposed improvement. And in so doing it is not compelled to give notice to the parties resident -within the territory or permit a hearing before itself, one of its committees, or any other tribunal, as to the question whether the property so included within the taxing district is in fact benefited.”
Indeed, the authorities to this effect are almost without limit, and all to the same force and effect. But the fact that the statute which we are now considering does provide for notice makes the question of the limit of legislative power to act without notice an academic one, except as it affects the complaint made by the appellant that the notice so required is insufficient. Assuming, as we must, that the legislature could have provided for the establishment of the district without any notice, it is not within the province of the court to say that some further or other notice is essential to the validity of the proceeding. Now this statute provides, not only for notice- of the proceedings for establishment of the district, and for an appeal therefrom by any person aggrieved thereby, but it also provides for still another notice of the levy of the assessment for the expense so incurred, upon the property within the district, and for an appeal therefrom by any property owner for the correction of an excessive assessment.
“The law contemplates the establishment of the district as returned by the engineer, save as changed by the board of supervisors upon the protest of some landowner*70 that his land has been improperly included within the proposed district or that lands of others have been improperly excluded. And where there is no appeal therefrom, the order of the board of supervisors, based thereon, establishing the district, is conclusive that all the lands included therein will be benefited by the improvement.”
Still other' holdings are to the same effect; but we have cited enough to show that the law in this respect is thoroughly settled and must be respected,” if we are not to involve the drainage statute and its operation- in inextricable confusion.
Counsel for apxiellant suggest that there is serious conflict in some of our decisions upon the law governing drainage operations in this state. This branch of our statute law has, within the last few years, rapidly developed into great importance; and its proper construction, complicated as it has been by frequent changes and amendments, has frequently occupied the attention of our courts. It would be strange if, in the multitude of cases dealing with the subject from various angles of approach, there should not be found instances of inharmonious expressions in argument and discussion; but we think that, when the cases are examined with a view to ascertaining the very questions considered and decided, there will be found little, if any, lack of harmony in them. The proposition that the creation and organization of a drainage improvement district is a legislative function, has long been recognized and often declared. See Lyon v. Sac County, 355 Iowa 367; Kelley v. Drainage, Dist., 158 Iowa 735; Oliver v. Monona County, 117 Iowa 56; Zinser v. Board of Supervisors, 137 Iowa 660; Temple v. Hamilton County, 134 Iowa 730; Denny v. Des Moines County, 143 Iowa 466; Hartshorn v. Wright County Dist. Court, 342 Iowa 72; In re Drainage Dist. No. 3, Hardin County, 146 Iowa 564; Chicago, M. & St. P. R. Co. v. Monona County, 144 Iowa 176, and others of this
The case of Denny v. Des Moines County, 143 Iowa 466, presented the single question whether the action o-f a board of supervisors in rejecting a petition for a drainage district and refusing to order its establishment could be reviewed on appeal to the court; and this was decided in the negative, because the determination of whether conditions warranted the making of the improvement and establishment of the district was a legislative act, and not within the power of the court to malee or enforce. The writer of the opinion In re Drainage District No. 3, Hardin County, 146 Iowa 564, makes use of some language which
"The whole subject of taxing districts belongs to the legislature; so much is unquestionable. The authority may be exercised directly, or, in the case of local taxes, it may be left to local boards or bodies; but in the latter case, the determination will be by a body possessing for the purpose legislative power, and whose action must be as conclusive as if taken by the legislature itself.” Cooley on Taxation (1st Ed.) 449.
That our drainage statute invests the board of supervisors with dual powers, both legislative and judicial in character, has been often recognized by this court. Temple v. Hamilton County, 134 Iowa 706. In a later case, we had occasion to consider this feature, and to construe the statute giving a right of appeal from an order establishing a drainage district, and held, after a'very thorough review of the authorities, that the right of appeal must be said to apply only where the order excepted to was judicial in character, — such, for example, as the sufficiency of the petition or of the statutory notice, — and that an order of establishment, being referable only to the legislature authority of the board, is not appealable. Denny v. Des Moines County, 143 Iowa 471. Indeed, no other holding is constitutionally possible; for a statute conferring upon the court power or authority to review or set aside a legislative act (except upon constitutional grounds) would be manifestly void. This was re-affirmed in In re Drainage District No. 3, Hardin County, 146 Iowa 564, and in Chicago, M. & St. P. R. Co. v. Monona County, 144 Iowa 171. The writer of this opinion
The statute applicable to this case will be found in Chapter 2-A, Title 10, Code Supplement, 1913. It is too' long to quote in this opinion; but it is enough to say, in general terms, that it treats of the subject of drainage, and
It will clarify the situation in this respect if we keep in mind the fact that it is the district, and not the individual landowner, with which the drainage law is primarily concerned. It maps out the district and treats it as a whole. In establishing the district, it establishes the fact that it is benefited as a whole, to the extent of the necessary and proper cost of the whole improvement. Practically speaking, there is then left but one further question to be passed upon, and that is the proper apportionment of this district tax to the several tracts of land of which the district is composed. If, in so doing, it were permissible for every individual owner to come into court and show that his particular tract received no benefit from the improvement, and be thereby relieved from liability to pay part of the tax, the law would be robbed of all practical effectiveness, and the whole system of drainage as a public enterprise be paralyzed.
Whether any sufficient evidence of inequitable apportionment is shown by the record will be considered in the following paragraph of this opinion.
“The foundation of this familiar form of taxation is a question of theory. The amount of benefit Avhich an improvement Avill confer upon particular land, indeed AAdiether it is a benefit at all, is a matter of forecast and estimate.” Louisville & N. R. Co. v. Barber Asphalt Paving Co., 197 U. S. 430.
So the Massachusetts court, dealing with the same subject, says it is “'the potentiality of receiving a benefit Avliich was the thing to be taxed.” Wright v. Boston, 9 Gush. (Mass.) 233. See also Bell v. City of Burlington, 154 Iowa 607. It may be admitted that, in dealing Avith a railroad
“It is very plain there is, and in the very nature of the case can be, no means of accurate measurement, no matter what tribunal has to deal with the subject. All that could be done by any tribunal would be to take into view all the various elements and considerations that might appear to have a just bearing upon the question, and determine as fairly as possible what is just and equitable under all the circumstances.” Kingman et al., Petitioners, 153 Mass. 566.
There is no showing in this case upon which we would be justified in saying that the commissioners making the primary assessment, the board of supervisors in adopting it, and the district court in affirming it upon appeal, did not keep within the limit of their authority and discretion in supporting this tax. There is nothing in the mere amount of the tax upon which we, as a matter of law, may condemn
“We are not authorized to interfere with a finding of this nature unless we can say that it is palpably against the weight of the evidence, * * * This is true even in cases where, if .governed wholly by the testimony as written in the record, we might feel better satisfied with a different conclusion.” Topliff v. City of Chicago, 196 Ill. 215 (63 N. E. 692).
Such also is the clear effect of our own cases. In re Hill Drainage District, 162 Iowa 182; Munn v. Board of Supervisors, 161 Iowa 26, 35; Chambliss v. Johnson, 77 Iowa 611, 613; Chicago, R. I. & P. R. Co. v. Wright County Drain. Dist., 175 Iowa 417; Camp v. City of Davenport, 151 Iowa 33. It is true that, in a somewhat recent case, we did, under the peculiar circumstances there shown, reduce the amount of an assessment upon railroad property; but, even as reduced, it was permitted to stand for $400 for an improvement affecting at most about 1,000 feet of a railway company’s right of way through land not excessively wet, a tax apparently more burdensome, as compared with the benefits shown, than the one we are now considering. In re Story County Drain. Dist. No. 34, 166 Iowa 344.
10. Drains: assesments: lands already drained by nature. Appellant further contends that, as the plat of the district discloses that at various points the right of way is laid over lands having an elevation from which surface water naturally drains into the lower levels or sloughs, and that a portion of the right of way at each end of the district has a natural slope or drainage away from the artificial system created by the district, this, in itself, is sufficient reason for reducing or setting aside the assessment. In so far as the objection goes to the propriety of including this territory in the district, it is governed by what we have already said concerning the finality of the ruling of the board in prescribing the district boundaries; and, in so far
For the reasons stated, the judgment of the district court is — Affirmed.
Supplemental Opinion.
— The trial court, in disposing of the case beloAV, said, in substance, that the effect of drainage such as is involved in this controversy Avas to increase the productiveness of the soil in the country tributary to the railway, and thereby tend to increase the business of such railway as a carrier, and that this was a material fact to be considered in the assessment of benefits. Of this language the appellant complains.
In affirming the judgment below, this court does not
With the foregoing addendum to the opinion as filed, the petition for rehearing is — Overruled.