195 P. 327 | Nev. | 1921
Lead Opinion
By the Court,
This proceeding was instituted in the district court of Lyon County under sections 19 and 20 of the Nevada irrigation district act (Stats. 1919, c. 64), to secure a confirmation of the organization of the Walker River irrigation district, and the proceedings had in connection therewith for the issuance of $918,500 of its bonds.
The board of directors of the district filed with the
Thereafter said board of directors filed a petition, in due form, with the clerk of said court, in effect praying for the confirmation of all of the proceedings had in connection with the apportionment of benefits to each subdivision or tract of land, with a list containing a complete description of each subdivision or tract of land in the district, together with the amount and rate per acre of such apportionment and the name of the owner thereof, as provided by the act. Thereupon the court fixed a day for the hearing of the petition and ordered notice to be given and published for the time and place of hearing. No person interested, at or before the time fixed, appeared, and thereafter, on, to wit, the 25th day of June, 1920, the court rendered a judgment'ratifying, approving, and confirming each and all of the steps taken and had with respect to said apportionment of benefits, and adjudged the specified and named amounts of benefits so apportioned to each subdivision or tract of land to be regular, legal, and valid.
The appellant appeals to this court from both judgments. The record upon his appeal consists of the petitions and one exhibit purporting to be the appor-. tionment of benefits charged against appellant’s lands
Appellant did not appear in either of the confirmation proceedings above referred to> but has filed in this court an assignment of errors that includes and covers an attack upon the constitutionality of the Nevada irrigation district act, the jurisdiction, power, and authority of the district court of Lyon County to examine, hear, and determine the subject involved in said judgments, and the legality and validity of the proceedings had in connection with the organization of the district, and insists that the judgments are absolutely null and void.
His failure to answer the petition is deemed an admission on his part of the material allegations in the petition. Section 19.
The effect of the judgment as to the proper compliance with the provisions of the act is conclusive upon landowners within the district, whether they appear or do not appear at the confirmation proceedings. 3 Kinney on Irrigation and Water Rights, sec. 1421.
At the threshold of the subject, we are confronted with the proposition that the confirmation provisions contained in the act (sections 19 and 20) are violative of section 6, article 6, of the constitution of this state, in that they attempt to confer upon the district courts jurisdiction not within or contemplated by said section.
Our conclusion upon this proposition is that the confirmation proceeding, as prescribed by said sections, is clearly in the nature of an action,in rem; the object being to determine the legal status of the district and its power to issue valid bonds. 3 Kinney on Irr., sec. 1420. The confirmatory procedure neither limits nor extends the original jurisdiction of district courts, as declared and prescribed by the constitution, and is not violative of its letter or spirit.
“The legislature shall not pass local or special laws * * * regulating the practice of courts of justice.”
If we clearly interpret the position taken by counsel for appellant, it is their contention that the particular provision is a special privilege that is granted to no other public corporation, individual, or association, and is therefore special legislation within the meaning of section 20, article 4, of the constitution. We are not in accord with this position. The sections are general in their application, and were enacted for the purpose of providing for the organization of irrigation districts throughout the state for the reclamation of our arid lands, and the legislature had in view the summary proceedings provided for in the sections for the express
If the act be constitutional,. we are satisfied of the lower court’s jurisdiction, power, and authority to render the decrees complained of.
(1) The title of the act embraces more than one subject, and matter properly connected therewith. Constitution, sec. 17, art. 4.
(2) The act is violative of the due-process-of-law clause of the Fourteenth Amendment to the Constitution of the United States.
(3) The act is violative of sections 1 and 6 of article 2 of the constitution of this state.
As preliminary to the discussion of these questions, we may remark that, where the constitutionality of district irrigation laws has been attacked upon the grounds stated, they are generally upheld as being constitutional and valid.
The legislature is presumed to have knowledge of the state of the law upon the subject upon which it legislates. Clover Valley L. & S. Co. v. Lamb, 43 Nev. 375, 187 Pac. 723.
It must also be understood that, where the legislature of one state adopts the statute of another, the act of adoption raises the presumption that the legislature of the adopting state enacted the statute in the light of the construction that had been placed upon it in the parent state. O’Brien v. Commissioners, 41 Nev. 90; Ormsby County v. Kearney, 37 Nev. 371.
The history of irrigation .district laws in Nevada begins with the statute of 1891, p. 106, and ends with the act under consideration. The substantive parts of
It must be understood that this court was- among if not the first court of the arid-land states to hold, without a legislative declaration upon the subject, that the doctrine of riparian rights is unsuited to the demands and necessities of the agricultural and mining industries of this state and the prosperity of its people. The legislature has declared that “water” belongs to the “public.” Nevada was the first of the arid-land states of the Pacific Coast to literally adopt the “Wright Law” of California, upon which all the irrigation district laws of the arid-land states are grounded.
The title of the act under consideration contains but one general subject, to wit, the organization of irrigation districts, which we think is broad and comprehensive enough to include every provision of the act, and we so hold. Anderson v. G. V. Irr. Dist., 35 Colo. 532, 85 Pac. 313; Nampa & M. Irr. Dist. v. Brose, 11 Idaho, 474, 83 Pac. 499; Pioneer Irr. Dist. v. Bradley, 8 Idaho, 310, 68 Pac. 295, 101 Am. St. Rep. 201.
We are of the opinion that counsel have overlooked, not intentionally, section 14 of the act, which provides:
“The board of directors, or other officers of the district, shall have no power to incur any debt or liability whatever either by issuing bonds or otherwise in excess of the express provisions of this act, and any debt or liability incurred in excess of such express provisions shall be and remain absolutely void. * * * ”
The proviso contained in the section permits and limits certain indebtedness not material here.
The power to incur any debt or liability is not unlimited, but is expressly restricted to revenue sufficient to meet the obligations voluntarily assumed by the landowners within the district, as voiced by their votes at elections held for that purpose. Board of Directors of Alfalfa Irrigation District v. Collins, 46 Neb. 425, 64 N. W. 1086.
The board of directors apportions the amount each year necessary to meet these obligations, and the act provides how collectible, and, when collected, how to be used.
An “assessment” or “special assessment” is not a tax levied upon property according to its value, and is distinguished from the general idea of a “tax,” although we concede it owes its origin to the same sources as the taxing power. There is a wide difference in law between a tax and an assessment. In the one case the taxes are assessed against the individual and become a charge upon his property generally. In the other, the assessment, being for the benefits accruing to. the specific property, becomes a charge only upon and against it, and liability for the charge is confined to the particular property benefited. Therefore an assessment or special assessment is not embraced within the meaning of the word “taxation,” because the owner of the property assessed gets back the amount of his assessment in the benefits received by his property, and therefore does not bear the burden of a tax.
“Sec. 8. Any person, male or female, of the age of 21 years or over, whether a resident of the district or not, who is or has declared his intention to become a citizen of the United States and who is a bona-fide holder of title, or evidencé of title, as defined in section 1 hereof, to land situated in the district, shall be entitled to one vote at any' election held under the provisions of this act, and shall be held to be referred to whenever the words elector or electors are used herein. Any elector residing outside of the district owning land in the*336 district and qualified to vote at a district election shall be considered as a resident of that division and precinct of the district in which the major portion of his lands are located for the purpose of determining his place of voting and qualifications for holding office. A guardian, executor, or administrator shall be considered as the holder of title or evidence of title as prescribed in section 1 hereof to the land in the estate for which he is such guardian, executor, or administrator, and shall have the right to sign petitions, vote and do all things that any elector may or can do under this act. Corporations holding land in the district shall be considered as persons entitled to exercise all the rights of natural persons and the president of the corporation, or other person duly authorized by the president or vice-president in writing, may sign any petition authorized by this act- or cast the vote of the corporation at any election.”
It is asserted that this section is obnoxious to sections 1 and 6 of article 2 of the constitution, in that it imposes a property qualification upon the right to vote within the letter and spirit of the constitution.
Section 1 of article 2 of that instrument, as amended, provides that—
“All citizens of the United States (not laboring under the disabilities named in this constitution) * * * shall be entitled to vote for all officers that now or hereafter may be elected by the people, and upon all questions submitted to the electors at such election. * * * ”
Section 6 of said article requires provision to be made by law for the registration of the names of electors, to preserve the purity of elections and their regulation.
The question presented for our determination being-one of first impression in this jurisdiction, and one that has given rise to conflicting views and decisions in the courts of the arid-land states whose irrigation district laws impose property and residential qualifications on the right to vote, the subject is worthy of full discussion. Preliminary thereto it is deemed proper to make these observations:
The development of the right of suffrage or voting is a matter more largely of historical than of legal interest.
Suffice it to say that the several qualifications on the right to vote — educational, property, and moral — in force at different times in the colonial period of our history, has, since 1879, been supplanted by the adoption of constitutional provisions by the several states similar to that contained in the constitution of Nevada. The impression widely prevails that these provisions of the constitution place the right to vote in the same category as the right to life, liberty, and property. Many cases have been fought upon this theory. The courts, however, have held with general unanimity (this court being among the number) that the right to vote as conferred by the constitution is a mere political privilege, and not an inherent, unqualified, personal, or political right. Riter v. Douglass, 32 Nev. 400, 109 Pac. 444. This case involved the constitutionality of the primary election law of this state. The court held that section 1, article 4, of the constitution, prescribing the qualifications of electors and guaranteeing their right to vote, applies to the election of public officers, and not to the selection of party nominees. Thus we have a judicial decision of our own, limiting somewhat the phrase “all elections,” as used in the section of the constitution under review.
By the weight of authority, the term “all officers” and questions submitted to the electors at such election, as used in section 1, article 2, has reference to the election of all officers provided for in the constitution. Section 32 of article 4 makes provision that the legislature Shall provide for the election by the people of certain officers named and “other necessary officers,” and fix by law their duties and compensation.
In the exercise of its power the legislature has enumerated what officers shall be elected and appointed. Rev. Laws, 2765.
It is manifest that the officers and elections contemplated in section 1, article 2, are only those officers and elections by whose action all of the people within the state or one of its political subdivisions are to be affected. If it may reasonably be said that irrigation districts are political subdivisions of the state, burdened with political and governmental functions to be exercised in running the machinery of .the state and local government, there might be some force to the argument that it is a “municipal” corporation. That it is a public corporation, the creature of the legislature, deriving all its powers, rights, and franchises from legislative enactment or statutory implication, is not questioned. Its officers or agents who administer its affairs are created by the legislature and chosen or appointed by the law of its creation. It possesses and can exercise such powers only as are expressly conferred by the law of its creation, or such as are necessary to the exercise of its corporate powers, the performance of its corporate duties, and the accomplishment of the purposes for which it was created. Its purpose is to reclaim privately owned arid lands from a common source, the owner to bear the expense. It has no political function. It does not encroach upon any department of the state, county, or township government. It is a corporate entity of the state, to bring under cultivation its arid lands for the general welfare of the entire state, unconnected with the political government of the locality covered by its operation.
The district is not established for political or governmental purposes, but as a mere scheme for conducting works of public improvement; and since also the costs of such improvements are made a charge against the lands benefited thereby, the right to a voice in the establishment of the districts, where given by the legislature, is clearly more of a private or property, right than a public or political one. Upon principle, therefore, we hold that the right to vote in elections provided for under the statute does not constitute an exercise of the elective franchise so as to render the law unconstitutional and void because requiring a property qualification and permits nonresident landowners to vote.
We are in accord with the case of Board of Directors v. Peterson, supra, and decline to adopt the conclusion stated in the California and Idaho decisions. Section 8 is patterned largely upon the Oregon statute, 6186 L. O. L. as amended, General Laws 1915, p. 234.
The Oregon, court, in the Peterson case, says:
“Although the decisions in Re Madera Irrigation District, 92 Cal. 296 (28 Pac. 272, 675, 14 L. R. A. 755, 27 Am. St. Rep. 106), and in Pioneer Irrigation District v. Walker, 20 Idaho, 605 (119 Pac. 304), hold to the contrary, we cannot adopt the conclusion stated therein. We believe we are not running counter to section 2, article 2, of the constitution in this conclusion, and a contrary holding would work a great wrong upon the farmers, who may obtain considerable benefit under such an organization, and who, on the other hand, might be .burdened by debt beyond the benefits conferred; and its affairs should be left exclusively to those affected thereby.”
It is suggested that the Oregon constitution contains the broad provision, “in all elections not otherwise provided for in this constitution,” not contained in our constitution, therefore the case of Board of Directors v. Peterson is not controlling. We observe the court does not base its conclusions upon the broad provisions contained in the constitution, but its reasoning is that the California and Idaho courts might have reached a different result upon principle under their constitutions.
In construing the constitution the thing to be sought is the thought expressed. Pershing County v. Humboldt County, 43 Nev. 78, 181 Pac. 960, 183 Pac. 314; State ex rel. Lewis v. Doron, 5 Nev. 399.
“That those who are specially interested and who must pay for the improvement are heard upon the question as to whether it shall be done, and are permitted to appoint those who shall superintend it, is not unusual, nor would it constitute an exercise of the elective franchise.” People ex rel. v. Reclamation District No. 551, 117 Cal. 114, 48 Pac. 1016.
Hence, we conclude that the residential requirement of voters, as prescribed in the constitution and the general election law, has no application to irrigation districts as organized under the Nevada irrigation district act.
Being of the opinion that the legislation in question is such as is within the scope of the authority of the legislature to enact, and that the objections here raised against its constitutionality are not well taken, we affirm the judgments appealed from.
Concurrence Opinion
I concur.
Dissenting Opinion
dissenting:
I am not in accord with all that is said in the foregoing opinion. I am convinced that such projects as contemplated by the statute in question are capable of being productive of much benefit to the state, and I am in sympathy with the idea; but, not being able to concur in some of the views expressed, I am driven to the necessity of dissenting. I could briefly set forth my views, but, as such action would serve no useful purpose, I refrain from doing so.
