86 Neb. 355 | Neb. | 1910
A majority of the owners of about 30,000 acres of swamp, overflowed or submerged lands situated in Richardson county formed a drainage district for the purpose of draining such lands under the provisions of article IY, ch. 89,-Comp. St. 1909 (Ann. St. 1909, secs. 5561-5597), and after its organization the district, in carrying out the purpose for which it was formed, apportioned the benefits, assessed the cost of the improvement, and required the county of Richardson to pay the sum of $18,600 as its share thereof on account of special benefits accruing to the 53 miles of public roads or highways situated and maintained within its boundaries. From a hearing before the board of drainage supervisors the county appealed to the district court, where a trial resulted in a judgment confirming and approving the order above mentioned, and from that judgment Richardson county has brought the case here by appeal.
The record presents many important and interesting questions, which will be stated and determined in the order in which they have been discussed by counsel.
1. Appellant’s first contention is that the drainage district is not a public, but is a private, corporation engaged
2. Appellant attacks the power of the drainage district to assess and collect from any political subdivision of the state any sum of money for benefits accruing to a highway from the improvement in question, and contends that such power cannot be granted by the legislature. In support of this contention appellant --it0" section 2, art. IX
The argument of appellant’s counsel, however, is that the county is the sole oAvner and proprietor of the highways assessed, and therefore it should not be required to assess and collect taxes upon its own property. We think this idea is a mistaken one. In Krueger v. Jenkins, 59 Neb. 641, it was said: “A county does not hold the legal title to county roads Avithin its borders; it has no poxvers of disposition over them. * * * In performing the duties with which it is charged in connection with them, it acts as an agent of the state, and in the interests of the general public.” We can see no reason why the county acting for the general public should not be required to pay for the benefits accruing to the public roads. It is charged with the duty of constructing and maintaining such roads in a suitable condition for public travel, and, if the improvement contemplated by the drainage district materially aids in the performance of that duty, there would seem to be no good reason why the county should not pay for the benefits thus conferred upon it.
Our attention is also invited to section 6, art. IX of the constitution, by which it is provided that the legislature may authorize the corporate authorities of cities, towns and villages to make local improvements and pay for the same by special assessment of the property benefited. As early as 1879, in construing this section, we said: “The constitution of a state not being a grant, but a restriction upon the power of the legislature, therefore a provision
In Heffner v. Cass and Morgan Counties, 193 Ill. 439, 58 L. R. A. 353, the supreme court of Illinois said: “ 'A county is a public corporation, which exists only for public purposes connected with the administration of the state government, and it and its revenues are alike, where no express constitutional restriction is found to the contrary, subject to legislative control (p. 449).’ * * * 'They were created to perform public, and not private, functions. They are wholly public in their character, and are a portion of the state organization. All their powers are conferred, and duties imposed, by the constitution and statutes of the state. They are public, and all the property they hold is for public use. It belongs to the public, and the county is but the agent invested with the title to be held for the public. * * * The property held by the county was .only acquired and held by authority conferred by the legislature, and for public use, and the property being held for the public is under the uncontrolled power of the general assembly, as it is not inhibited in its absolute control. The county could neither hold nor dispose of property unless authorized by the constitution or statute, and the legislature has the power to
The effect of the enactment of section 19, ch. 161, laws 1905, was simply a -declaration of the legislature that any public corporation engaged in a work of public utility shall have the right and power to collect, by way of special assessment, benefits which are found to accrue to public property from another public corporation. Under the rule laid down by the legislature, however, the benefits assessed must not exceed the benefits conferred, and a procedure is provided by which this issue may be determined, and a right to a review of such decision by the courts is preserved to both parties. No provision of the constitution has been pointed out which denies such power where the assessments do not exceed the benefits, and we have not succeeded in finding any such. To drain a large tract of land and render it fit for habitation and use, and to facilitate the interchange of communication across it, is the proper use of the taxing power, and was so held in the leading case of Tide-water Co. v. Coster, supra.
The constitution of Illinois is in many respects like the constitution of this state, and the supreme court of that state has said: “If a highway over marshy or swampy ground shall be drained, it will be improved, and the public will be benefited thereby. That will be done by the drainage district which it was the duty of the highway district to do, and therefore it imposes no burden on the highway district that it shall be required to contribute, in proportion to the benefit thus received, for the improvement whereby it is produced, but, on the contrary, it ratably distributes the cost of public improvement in accordance with the spirit of our constitution.” Commissioners of Highways v. Commissioners of Drainage District, 127 Ill. 581. For the foregoing reasons we are constrained to hold that the appellant’s contention upon this point is not well founded.
3. Appellant assails the act in question as a violation
It is true that it has been held in many cases that where
4. Counsel for appellant also contend that “the title to the act in question does not indicate that a highAvay shall be assessed for benefits.” In other words, their contention is that the act is broader than its title, and is therefore in conflict with section 11, art. Ill of the constitution, which provides, among other things: “No bill shall contain more than one subject, and the same shall be clearly expressed in its title.” Turning to the session laws of 1903, eh. 116, we find that the title to the act reads as folloAVS: “An act to provide for the formation of drainage districts; for the reclamation and protection of swamp, over fio Aved or submerged lands; to provide for the acquirement of rights of way, easements and franchises, or other property necessary to carry out the purposes of this act; to describe the course of procedure to be followed to accomplish such object; and to prescribe a penalty for the Avilful and malicious injury or interference with the rights or property of said districts.” This seems to be a well-prepared and comprehensive title, and is broad enough to authorize the legislature to incorporate in the body of the act all provisions necessary to carry out the purpose of the legislation. The act of 1881
5. Appellant further contends that the drainage act conflicts with section 1, art. II of the constitution, which divides the powers of state government into three departments. That question was considered and determined in the case of Barnes v. Minor, 80 Neb. 189, where it was held: “The power of the legislature over the subject of procedure, within limits not impairing the inherent powers or jurisdiction of the courts, is not restricted; and it is competent to require, by statute, a preliminary judicial ascertainment of facts, the existence of which is made a condition precedent to the creation of a public corporation.” We find that decision supported by 1 Page and Jones, Taxation by Assessment, secs. 205, 207; State v. Bates, 96 Minn. 110, and many other authorities. We are
6. Counsel for appellant strenuously insist that in passing the drainage act in question the legislature had no power to direct that assessments for benefits to highways should be _ made against the county, because the county of Richardson had theretofore adopted township organization, and was governed by the terms of that act. From an examination of our statutes it appears that in counties . under township organization the responsibility for the construction and maintenance of highways is divided between the county proper and the townships. The laws controlling this feature of our county government are, to some extent, in a state of confusion, but since 1887 it has been the duty of the counties to construct and keep in repair the bridges over streams. Ann. St. 1909, secs. 6192, 6195. Again, the power to contract for the construction of bridges costing $100 or more was taken from the townships and given to the county boards in 1905. Ann. St. 1909, sec. 6126. The legislature of 1909 also shifted the burden of damages from the towns to the counties caused by opening, widening or vacating roads. Ann. St. 1909, sec. 6157. In 1905 the legislature passed an act directing-county boards to tax delinquent road districts 5 mills as an extraordinary tax, and to continue that process until all past due indebtedness was liquidated. Ann. St. 1909, secs. 6171-6176. It thus appears that step by step power has been transferred from the towns to the counties, and liabilities have accordingly been shifted. No reason suggests itself why the powers of the supervisors of drainage districts are not as extensive in counties under township organization as 'in other counties. They can apportion to the road in the one case as well as in the otlier its proper proportion of the cost and expense of the improvement. It was the evident intention of the lawmaking power that in counties under township organization such expense should be paid out of the general funds of the county, and under the law such counties
7. Finally, it is contended that the assessment appealed from is speculative and excessive, and therefore should be set aside and held for naught. An examination of the bill of exceptions discloses that the preliminary report of the engineer apportioned the costs and benefits to the appellant at $24,079, the total costs of the improvement in the district being the sum of $277,264.57. Objections were filed by the county, and a hearing was had before the board of supervisors, where the assessment was reduced to $18,600, and the engineer was directed to reapportion this sum to the various roads within the drainage district. The county appealed from this decision, and on the trial in the district court the finding and adjustment made by the board of supervisors was declared to be equitable and fair, and the assessment as equalized was confirmed by the court. Without quoting the evidence, it is sufficient to say that it appears that the engineer of the drainage district was a man of experience, having been engaged in his profession about 13 years; that he had been largely engaged in drainage projects similar to the one in question; that he was acquainted with every mile of road in the drainage district, and had personally examined each mile before he made the assessment. He testified both as to
Having considered all of the material or essential assignments presented by counsel for the appellant, and finding no error in the record, the judgment of the district court is, in all things,
Affirmed.