148 Minn. 347 | Minn. | 1921
By an amendment to section 5532, G. S. 1913, contained in section 5, c. 471, p. 612, Laws 1919, the following addition was made thereto:
“Provided, however, that in event the final hearing on any ditch petition and the engineer’s and viewers’ reports came on to be heard before the county board or the judge of the district court, as the case may be, between April 6, 1917, and November 11, 1918, and an order was thereafter made refusing to establish said ditch, or dismissing the petition, that the said proceeding may be revived and the matter brought on for hearing de novo at any time within two years from the passage of this act by the following procedure: A new petition and bond, as required by section 5525, General Statutes Minnesota 1913, as amended by chapter 441, section 4, General Laws of Minnesota for 1917, and referring to the engineer’s and viewers’ reports in the said proceeding and requesting that the said reports shall be brought on for hearing de novo shall first be
In pursuance of this enactment a petition was filed for a rehearing of a drainage proceeding in the district court of Freeborn county. The proceeding had been begun in 1915, was finally heard in April, 1918, and determined November 2, 1918, by an order refusing to establish the proposed drainage system. After the order was filed, the court made specific findings of fact. The substance of the findings is that the land included in the drainage project is neither level nor swampy' and does not require extensive drainage to make it useful for agriculture; the proposed drainage would change lands now used and valued as meadows and pastures into tillable fields; the public benefits would be of minor importance; the engineer’s plans are unnecessarily elaborate and costly, and may and should be changed to reduce the expense materially; the plans provide for too many outlets for the water drained from the land; to construct them would burden the landowners with an expense greatly in excess of the benefits conferred; some of the- assessments for benefits, as made by the viewers, should be entirely disallowed, and many others materially reduced; if the assessment of benefits and the award of damages are allowed to stand, it would be difficult, if not impossible, to finance the project, owing to the cost of labor and materials at the time the findings were made.
In a memorandum following the order of November 2, the court stated, as one of the reasons fox the order, that to construct the drainage system the bonds of the counties involved would 'have to be issued for approximately $200,000 and would have to be sold in competition with government war securities, and that essential industries were then suffering from a shortage of labor, which might be aggravated if the drainage ditches were constructed; that these considerations of public policy,
In carrying out and applying the drainage statutes, the district court exercises judicial functions. State v. Crosby, 92 Minn. 176, 99 N. W. 636; State v. District Court of Norman County, 131 Minn. 43, 154 N. W. 617; State v. Flaherty, 140 Minn. 19, 167 N. W. 122.
Section 5532, Gf. S. 1913, directs the court to consider the reports of the engineer and viewers and such other evidence as may be adduced, and, if it finds therefrom that the estimated benefits are greater than the total cost, including damages awarded, that the work will be of public utility or 'benefit or will promote the public health and that the reports are complete, just and correct, it shall establish the proposed drainage system by an order containing such findings. Pursuant to the statute, the district court did consider the reports and evidence and then made its findings. We perceive no reason why these findings should not be given the same force and effect as findings of fact in an ordinary action 'between private parties. The only possible conclusion from the findings was that the petition should be denied. Now it -is proposed to vacate the findings and conclusions, revive the proceeding after it has been conducted to a final determination and bring it on for hearing de novo.
This court has held that the legislature has no power to grant a new trial or rehearing of a cause after it has been heard and determined on the merits. State v. Flint, 61 Minn. 539, 63 N. W. 1113. The colonial legislatures exercised that power, following the English practice under which the House of Lords took cognizance of many suits at law and in equity. Calder v. Bull, 3 Dall. 381, 1 L. ed. 648; Merrill v. Sherburne, 1 N. H. 199, 8 Am. Dec. 52. But when the states adopted their constitutions, they separated the judicial from the legislative power and divided the government into three distinct departments, the legislative, the executive and the judicial, and generally declared that no one of the de
Counsel for appellants recognize the principle, but question its application to the case at bar. They would confine its application to ordinary civil actions between private parties. They argue that a drainage proceeding is not an ordinary civil action in that no issues are framed by pleadings and there is no contest between private parties. They point to the fact that the exercise of the police power of the state is invoiced and that a refusal to exercise it does not prevent an immediate renewal of the application for the establishment of the same drainage system. In this respect they say drainage proceedings are like proceedings to establish public highways.
All this is probably true, but nevertheless it falls short of overcoming the objection to the maintenance of the present proceeding. In passing, it should be noted that, if the amendment to section 5532 merely provides a way for the commencement anew of a drainage proceeding which has been dismissed, it has hot provided a new remedy, for section 5562, G. S. 1913, had already covered that ground. The scope of the amendment is broader than that. The statute declares that the original proceeding shall be revived, heard and determined de novo after the dismissal of the petition originally filed or the entry of an order .refusing to establish the ditch. It does not provide for the commencement of a new proceeding in which the reports of the engineer and viewers may be used
Order-affirmed.