60 N.W. 392 | N.D. | 1894
Theses cases have been submitted together. They are brought by the same plaintiff against different defendants, but to accomplish one purpose, and that purpose is to relieve plaintiff from the payment of a certain assessment laid upon his land, under the drainage law hereafter mentioned. The first action is against the drain commissioners of Cass County, and asks that they be perpetually enjoined from constructing a certain drain in said county, which they had caused to be established and partially constructed, and had assessed a certain per cent, of the cost of said drain against the property of plaintiff, which said commissioners declared to be benefitted by the construction of such drain. The second action is against the treasurer of said county and the holder of a certain warrant issued by the drain commissioners in payment of damages sustained by the construction of said drain. An injunction is sought perpetually restraining the payment of such warrant. The third case is against the county commissioners of said county, and seeks to enjoin them from issuing bonds of said county to pay for the construction of the drain in question and other similar drains, which it was alleged they were about to do. The answers in the several cases alleged, in substance, strict compliance with the provisions of Ch. 55, Laws 1893. A general demurrer to the answers was overruled, and the plaintiff appeals.
The case turns exclusively upon the question of the constitutionality of said Ch. 55. The act is a general drainage law, and is largely copied from the Michigan drainage laws. From a financial standpoint, it is one of the mo^t important statutes ever enacted in the state. Thousands of dollars have already been expended under the. law, and the drains now in process of construction and in contemplation throughout the state will, if completed, cost many thousands more. It is of importance to
The act is entitled “An act to provide for the establishing, constructing and maintaining drains in this state.” The first part of § i reads: "Water courses, ditches and drains for the drainage of swamps, marshes and other low lands may be established, constructed and maintained in the several counties and townships of this state whenever the same shall be conducive to the public health, convenience or welfare, under the provisions of the act.” The balance of the section- defines a drain. Section 2 provides for the appointment by the county commissioners of three drain commissioners in each county, fixing their term of office at two years, and providing for their removal and for filling vacancies. Section 3 provides for their oath and official bond. 'Section 4 relates to drains in more than one county, and need not be further noticed here. Section 5 provides for the application by five or more freeholders, residing within proper limits, to the drain commissioners, for the establishment of a drain, and for an inspection of the ground by the said commissioners, and, if they so order, a preliminary survey by a competent surveyor, and for maps, with plans, specifications, and estimates, to be filed by said surveyor with the county auditor. Section 6 make applicants liable for costs when drain not necessary, but, if commissioners determine drain to be necessary, they shall proceed to establish the same. Section 7 reads as follows: “If, within twenty days after such determination, all of the persons on whose lands the proposed drain is to be placed shall not have executed a release of right-of-way and all damages on account thereof, the board of county drain commissioners shall appoint a time and place of hearing upon the application, which shall not be less than ten nor more than twenty days thereafter, and shall immediately
In passing upon the constitutionality of any statute, there are certain elementary principles of which courts must ever be mindful. These principles render that certain which otherwise might be uncertain; that simple which otherwise might be complex; that safe which otherwise might be dangerous. We must remember that legislative power is primarily plenary, and that constitutions are not grants of, but restrictions upon, that power. Hence he who would challenge a legislative enactment must be able to specify the particular constitutional provision that deprived the legislature of the power to pass the enactment. We must remember that it is the duty of courts to reconcile statutes with the constitution when that can be done without doing violence of either, and in all cases of doubt, the doubt must be resolved in favor of the constitutionality of the statute. Thus much deference the judicial department of government owes to the legislative. But we must remember, also, that the constitution is the shield which the state, in its sovereign capacity, has provided for the protection of private rights. This protection is necessary. Every period in civilized history, however remote or however recent, but emphasizes the fact that unrestrained legislation is inimical to individual rights. Having provided the shield, the state has created its courts, and charged them with the special duty of seeing that every legislative blow improperly aimed at the life, liberty, happiness, or property of the individual falls harmlessly upon that shield. The court that fails in this duty fails in the purposes of its creation, and should be barred from further participation in governmental affairs. With these general guides, let us examine this statute.
It is first urged against this statute that it violates Section 61 of the constitution of North Dakota, which reads: “No bill shall embrace more than one subject, which shall be expressed in its title, but a bill which violates this provision shall be invalidated thereby only as to so much thereof as shall not be so
The second objection ux-ged against the statute is that it violates Section 172 of the constitution, which declaims that the fiscal affairs of the countxy shall be transacted by a board of county commissioners. If we carefully consider Sections 170, 171, and 172 of our state constitution, we are forced to the conclusion that the words “fiscal concex-ns,” “fiscal affairs,” and “affairs,” and “govex-nment” ax-e used interchangeably. Section 170 authorizes the legislature to px'ovide by general law for township organizations under which any county may organize; and, when such organization is adopted in any county, “so much of this constitution as provides for the management of the ‘fiscal concerns’ of said county by the board of county commissioners may be dispensed with by a majority vote of the people voting at any genei'al election, and the ‘affairs’ of said county may be tx-ansacted by the chairman of the several township boards of said county.” But it cannot be claimed for a moment that the duties of the township chairman, when in charge of the “affairs” of the county,
Section 14, Art. 1, of our constitution reads as follows: “Private property shall not be taken or damaged for public use without just compensation having been first made to, or paid into court for the owner, and no right-of-way shall be appropriated to the use of any corporation, other than municipal, until full compensation therefor be first made in money or ascertained and paid into court for the owner, irrespective of any benefit from any
Under constitutional provisions declaring that private property shall not be taken for public use without just compensation, and silent as to the time of payment, it has generally, if not universally, been held, when property was thus taken by a private corporation, that payment must precede the taking; but, where
We may now proceed to analize the amendment which was offered and adopted, and which constitutes the balance of Section 14 of the constitution of this state, and reads: “And no right-of-way shall be appropriated to the use of any corporation, other than municipal, until full compensation therefor be first made in money or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived.” We notice that this provision relates to the appropriation of right-of-way. If private property be taken for any other public use, it falls within the first provision in this section. This right-of-way must be appropriated to the use of a corporation “other than municipal.” If a municipal corporation appropriate a right-of-way, it still falls within the first provision. For this right-of-way, thus appropriated by a corporation other than municipal, full compensation must be made in money; that is, a compensation “irrespective of any benefits.” Strictly speaking, full compensation is required in every case; but, except in cases of the appropriation of a right-of-way by a corporation other than municipal, this full compensation may be paid in benefits received to the extent of such benefits, leaving the balance only, or the just compensation, to be otherwise paid. From the fact that the constitution directs that, for right-of-way appropriated to the use of a private corporation, full compensation shall be paid in money, learned counsel argue that, for right-of-way appropriated to the use of a municipal corporation, just compensation need not be paid in money, but may be'
We here meet another question that is not without difficulty in this case. It is this: Granting that the power of eminent domain cannot be exercised under this statute, and that the provisions upon that subject are unconstitutional and void, must the whole statute for that reason fail? If there were no attempt in this statute to provide for compensation, then the law would conclude that it was not the legislative intent to exercise the power of eminent domain, but that the right-of-way was to be acquired by
We do not think that the manner in which compensation is ascertained under the statute is any violation of Section 14 of the constitution. It is true that the ascertainment of just compensation is a judicial proceeding, but a party has no inherent right to have such compensation fixed by jury. This has been repeatedly held. Kohl v. U. S., 91 U. S. 375; U. S. v. Jones, 109 U. S. 513, 3 Sup. Ct. 346; Manufacturing Co. v. Garland, 25 Fed. 521; Ames v. Railroad Co., 21 Minn. 241; People v. Smith, 21 N. Y. 595. The original provision in said Section 14 of the constitution, as reported to the California convention, contained no reference to a jury. That was added in an amendment which created an exceptional class of cases, and, in the connection in which it was placed, we think it applied only to such exceptional cases. The entire section speaks of two different characters of compensation. First it speaks of “just compensation” as applied generally. It then creates the exceptional class, and for that class it demands “full compensation,” and adds “which compensation shall be ascertained by a jury.” Ordinarily, these words would not include both characters of compensation, but would include that
We ought to remark in this connection that the right of plaintiff to raise the questions we have been discussing under Section 14 of the constitution has not been denied. The questions have been fully discussed on their merits by both parties, and plaintiff’s right to raise the same has thus been conceded, and, being conceded, a ruling upon the questions became necessary to "a decision of the case.
Section 38 of the statute does not appear in any drainage law that we have examined. We believe it to be new in this connection. It provides for the issuance and sale of county bonds, running for a series of years, and drawing interest at a rate not to exceed 7' per cent. The proceeds of these bonds are to be passed to the drainage fund, and used to meet the expenses of establishing and constructing drains. Provision is made by which the county is to be repaid, certainly to the amount of the principal, and, as we construe it, the interest also, by the municipalities and persons upon whom special assessments are laid under the law. It is urged upon us that this violates Section 185 of our state constitution, which prohibits any county from loaning or giving its
But it is urged that draining swamp and overflowed lands, when it will conduce to the health and welfare of the community and benefit the highways, is a public service, for which it was within the power of the legislature to make the county originally liable, and that power must include the power to make the county temporarily liable. The conclusion is not warranted under our constitution. It was within the power of the legislature to designate the localities that would be benefited by the drains, and that should bear the burdens thereof. Stone v. Charlestown, 114 Mass. 214; Com. v. Plaisted, 148 Mass. 375, 19 N. E. 224; King v. City of Portland, 2 Or. 146; Williams v. Commack, 27 Miss. 209. This determination of the legislature is, of course, final. In this case, by placing the benefits and burdens elsewhere, the legislature has declared that the county, qitoad hoc, is not benefited. The whole burden is thrown upon other corporations and persons. The obligation rests entirely upon them, and they are never relieved. All the county can do is to obtain for them an extension of the time of payment by the loan of its credit. This the constitution prohibits; and the plaintiff, being a property owner and taxpayer within the County of Cass, is entitled to a writ against the said county commissioners perpetually enjoining them from the issuance of bonds of the county under the provisions of said Section 38 of said drainage act.
One more objection is urged against the statute. It is claimed that it violates the provisions requiring uniformity in taxation, found in Section 176 of the constitution. It is first claimed that the provision for special assessment is void, We think not.
In closing, we wish to acknowledge our obligation not only to the able counsel in these cases, but also in the case following and ruled by this, infra, and to W. J. Kneeshaw, Esq., who filed a brief in support of the law in behalf of Pembina County.
The District Court will reverse the judgment in each case, and sustain plaintiff’s demurrer to the answer, and enter judgment as prayed for in the complaint.
Reversed.