163 N.W. 540 | N.D. | 1917
Lead Opinion
(after stating the facts as above). The drainage proceedings involved in this controversy have already been before this court in the case of Freeman v. Trimble, 21 N. D. 1, 129 N. W. 83. It was there held that:
(1) The joint boards of drain commissioners have power to secure an outlet to drains established within their district, in foreign territory, where a public necessity exists for securing such outlets.
(2) Where it is necessary to- improve, deepen, or widen the channel or bed of a river in this state in order to drain flooded lands, and the deepening and widening of such river in this state would not be-effectual in draining such lands, without deepening and widening the river bed for about 12 or 14 miles after it passes into Canada, the drain commissioners have power to secure a suitable outlet by improving the river after it passes into Canada.
(3) In such a case, the fact that the control of the improvement, after its completion is not vested in the county commissioners, but in the council of the municipality through which the river passes, in
(4) Section 1823, Rev. Codes 1905 as amended in 1907, Comp. Laws 1913, § 2466, making it necessary to secure the right of way to land through which drains in this state pass, has no application to improvement of water courses for drainage purposes.
(5) Improving a water course after it passes beyond the drainage district for 12 to 14 miles into foreign territory, for the purpose of making an improvement of the water course in this state efficacious, is not an unreasonable exercise of the power of securing an outlet for drain purposes.
(6) The general principle that land benefited by a drain equally with other land, that is assessed for such benefits, shall not be arbitrarily omitted from such assessment, is not applicable where land in foreign territory is not, and cannot be, assessed for benefits incident to the construction of the drain in the drainage district that is assessed.
These findings practically dispose of all of the contentions of the appellants in this case except the contention that the attempted construction and maintenance of that portion of the drain which lies in Canada, and the negotiations and contracts with the rural municipality of Arthur, constitute an unlawful attempt to invade the treaty-making power, which is vested in the Federal government.
It is argued, indeed, by counsel for respondent that the prior decision makes all of these matters res judicata. Counsel for the appellant, however, contends that the parties plaintiff are different. An examination shows that all of the individual plaintiffs in the present action were plaintiffs in the former case, and that the only additions are McHenry county and its board of county commissioners and Meadow township. It' is also shown that McHenry county contributed $300 to award the payment of expenses of the former litigation, and that both McHenry county and Meadow township were in existence when the former litigation was instituted. The defendants in the present litigation are the same as those in the former controversy. The relief prayed for in the former action was that the defendants be enjoined from letting contracts for the construction of the drain, and .from taking
Whether the former decision constitutes res judicata, it is not necessary for us to say. All that is necessary to say is that the former decision certainly presents the law of the case, and that this court after such a decision, which was rendered after a full presentation and after a rehearing, will not, after the drain has been constructed,the expense incurred, and the benefits conferred, reverse its prior holdings.
The only possible defense which remains and which was not specifically passed upon in the case is that the transaction is an encroachment upon the Federal treaty-making power and a violation of the Federal constitutional provision which forbids agreements or compacts between a state and a foreign power without the consent of Congress. And this question can only be raised, if at all, by the plaintiffs McHenry county and Meadow township, as the point was certainly involved in the prior litigation. It is true it was not raised or discussed by counsel on either side, and was only incidentally raised in the dissenting opinion of Mr. Justice Spalding, but it was involved nevertheless and would ordinarily be considered to be foreclosed at this time. See Re Northwestern University, 206 Ill. 64, 69 N. E. 75; Greenberg v. Chicago, 256 Ill. 213, 49 L.R.A.(N.S.) 108, 99 N. E. 1039.
It is apparent, indeed, that the new plaintiffs merely acted in a representative capacity and as representatives of the public interests of the citizens of their county and municipality. Such representatives are privy to any other action in which the same interest is brought in question, even though not by same parties thereto. State ex rel. Davis v. Willis, 19 N. D. 209-225, 124 N. W. 706; Freeman, Judgm. § 158; Sabin v. Sherman, 28 Kan. 289; Dimond v. Ely, 28 N. D. 426, 149 N. W. 349; Greenberg v. Chicago, supra; 23 Cyc. 1269.
Nor do we believe that the fact that the treaty relied upon was not urged in the former proceedings, and was only suggested in the
The general rule, indeed, seems to be that a judgment is conclusive, not only upon the questions actually contested and determined, but upon all matters directly involved and which might have been litigated and decided in that suit, and that of assigning new reasons for holding an act invalid which existed at the time the prior decision was rendered, the parties cannot relitigate the question settled by that litigation.
The plaintiffs, indeed, if with any standing in court at all, come here with every equity against them. They must have known of the former proceeding, for they contributed towards its expenses, and yet they stood idly by and allowed it to be brought in the names of others. They have now practically all of the benefits of the drain, and yet they desire to escape its cost. They are the owners of, or are interested in, the upper lands. These lands have been drained into the lower lands of Bottineau county to be thence directed across the border. Now that the drain is completed and bonds have been issued, their surface waters are disposed of, and, unless a proper outlet is had, the lands of Bottineau county will themselves be flooded, they seek to block the project, and to raise questions of which they must have been, or should have been, cognizant at the time of the original action. Hackney v. Elliott, 23 N. D. 373, 398, 137 N. W. 433; Erickson v. Cass County, 11 N. D. 494, 508, 92 N. W. 841.
But whether precluded or not, we do not believe that there is any merit in the objections raised.
The question is whether the proceedings in consideration were in violation of the following section of the Eederal Constitution, article 1 of § 10:
“No state shall enter into any treaty, alliance, or confederation.
“No state shall, without the consent of Congress, . . . enter into any agreement or compact with another state or with a foreign power.”
The argument of counsel for appellant is that if the engagement of the drainage board with the municipality of Arthur is a treaty or an invasion of the treaty-making power, it is void, whether undertaken with or without the consent of Congress. If it is an agreement or
Moreover, he adds: “When this agency of government undertakes to exercise the functions prescribed by law, it keeps a public record of its meetings, it purports to execute contracts and engagements binding upon the citizens of the state thereby affected, or citizens of other states owning property therein, and so long as it exercises its functions within the scope of its statutory authority, it may and does impose heavy burdens upon the property of the citizens by virtue of its public authority; and as defendants assert in this case, it enjoys the additional power of imposing such burdens under legal authority upon the counties of the state and other governmental subdivisions, which burdens in the case of the counties of McHenry and Bottineau, if legally assessed and imposed, are payable as a debt of such counties out of the general revenues raised by taxation-of all citizens and property owners within such counties.”
He also maintains that the municipality of Arthur in the Dominion of Canada occupies the same relationship to the parent state.
We do not believe that there was any violation of § 10 of article 1 of the Federal Constitution, which provides that “no state shall enter into any treaty, alliance, or confederation. . . . No state shall, without the consent of Congress, . . . enter into any agreement or compact with another state or with a foreign power.” It is true that the case of Holmes v. Jennisen, 14 Pet. 540, 10 L. ed. 579, uses quite sweeping language in regard to the clause in question. The case, however, was one which involved the right of extradition, which is essentially a national and governmental power, and its language must
In the case of Virginia v. Tennessee, 148 U. S. 503, 37 L. ed. 537, 13 Sup. Ct. Rep. 728, the Supreme Court of the United States held that an agreement made without the consent of Congress, between Virginia and Tennessee, to appoint commissioners to run and mark the boundary line between the states, was not in violation of the Federal rights. Among other things, the court through Mr. Justice Field said:
“Is the agreement made without the consent of Congress, between Virginia and Tennessee, to appoint commissioners to run and mark the boundary line between them, within the prohibition of this clause? The terms ‘agreement’ or ‘compact’ taken by themselves are sufficiently comprehensive to embrace all forms of stipulation, written or verbal, and relating to all kinds of subjects; to those to which the United States can have no possible objection or have any interest in interfering with, as well as to those which may tend to increase and build up the political influence of the contracting states, so as to encroach upon or impair the supremacy of the United States or interfere with their rightful management of particular subjects placed under their entire control.
“There are many matters upon which different states may agree that can in no respect concern the United States. If, for instance, Virginia should come into possession and ownership (of a small parcel of land in New York which the latter state might desire to acquire as a site for a public building, it would hardly be deemed essential for the latter state to obtain the consent of Congress before it could make a valid agreement with Virginia for- the purchase of the land. If Massachusetts, in forwarding its exhibits to the World’s Fair at Chicago, should desire to transport them a part of the distance over the Erie canal, it would hardly be deemed essential for that state to obtain the consent of Congress before it could contract with New York*72 for the transportation of the exhibits through that state in that way. If the bordering line of two states should cross some malarious and disease-producing district, there could be no possible reason, on any conceivable public grounds, to obtain the consent of Congress for the bordering states to agree to unite in draining the district, and thus removing the cause of disease. So, in case of threatened invasion of cholera, plague, or other causes of sickness and death, it would be the height of absurdity to hold that the threatened states could not unite in providing means to prevent and repel the invasion of the pestilence without obtaining the consent of Congress, which might not be at the time in session. If, then, the terms ‘compact’ or ‘agreement’ in the Constitution do not apply to every possible compact or agreement between one state and another, for the validity of which the consent of Congress must be obtained, to what compacts or agreements does the Constitution apply?
“We can only reply by looking at the object of the constitutional provision and construing the terms ‘agreements’ and ‘compact’ by reference to it. It is a familiar rule in the construction of terms to apply to them the meaning naturally attaching to them from their context. Noscitur a sociis is a rule of construction applicable to all written instruments. Where any particular word is obscure or of doubtful meaning, taken by itself, its obscurity or doubt may be removed by reference to associated words. And the meaning of a term may be enlarged or restrained by reference to the object of the whole clause in which it is used.
“Looking at the clause in which the terms ‘compact’ or ‘agreement’ appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States. Story, in his Commentaries (§ 1403) referring to a previous part of the same section of the Constitution in which the clause in question appears, observes that its language ‘may be more plausibly interpreted from the teims used, “treaty, alliance, or confederation,” and upon the ground that the sense of each is best known by its association (noscitur a sdciis) to apply to treaties of a political character; such as treaties of alliance for purposes of peace and war; and treaties of confederation, in which the parties are leagued for*73 mutual government, political co-operation, and the exercise of political sovereignty, and treaties of cession of sovereignty, or conferring internal political jurisdiction, or external political dependence, or general commercial privileges;’ and that ‘the latter clause, “compacts and agreements,” might then very properly apply to such as regarded what might be deemed mere private rights of sovereignty; such as questions of boundary; interests in land situate in the territory of each other; and other internal regulations for the mutual comfort and convenience of states bordering on each' other.’ And he adds: ‘In such cases the consent of Congress may be properly required, in order to check any infringement of the rights of the national government; and, at the-same time, a total prohibition to enter into any compact or agreement might be attended with permanent inconvenience or public mischief.’
“Compacts or agreements — and we do not perceive any difference in the meaning, except that the word ‘compact’ is generally used with reference to more formal and serious engagements than is usually implied in the term ‘agreement’ — cover all stipulations affecting the conduct, or claims of the parties. The mere selection of parties to run and designate the boundary line between two states, or to designate what line should be run, of itself imports no agreement to accept the line-run by them, and such action of itself does not come within the prohibition. Nor does a legislative declaration, following such line, that, it is correct, and shall thereafter be deemed the true and established, line, import by itself a contract or agreement with the adjoining state. It is a legislative declaration which the state and individuals affected by the recognized boundary line may invoke against the state as an admission, but not as a compact or agreement. The legislative declaration will take the form of an agreement or compact when it recites some-consideration for it from the other party affected by it; for example, as made upon a similar declaration of the border or contracting state. The mutual declarations may then be reasonably treated as made upon mutual considerations. The compact or agreement will then be within the prohibition of the Constitution or without it, according as the establishment of the boundary line may lead or not to the increase of the political power or influence of the states affected, and thus encroach or not upon the full and free exercise of Federal authority. If the-boundary established is so run as to cut off an important and valuable*74 portion of a state, the political power of the state enlarged would be affected by the settlement of the boundary; and to an agreement for the running of such a boundary or rather for its adoption afterwards, the consent of Congress may well be required. But the running of a boundary may have no effect upon the political influence of either state; it may simply serve to mark and define that which actually existed before, but was undefined and unmarked. In that case the agreement for the running of the line, or its actual survey, would in no respect displace the relation of either of the states to the general government. There was, therefore, no compact or agreement between the states in this case which required, for its validity, the consent of Congress, within the meaning of the Constitution, until they had passed upon the report of the commissioners, ratified their action, and mutually declared the boundary established by them to be the true and real boundary between the states. Such ratification was mutually made by each state in consideration of the ratification of the other.”
This language was quoted with approval in the case of Wharton v. Wise, 153 U. S. 155-168, 38 L. ed. 669-674, 14 Sup. Ct. Rep. 787. In that case the validity of a compact between the states of Virginia and Maryland, which gave to the citizens of Maryland the right to •enjoy freely the right to take oysters in common with the citizens of Virginia in Pocomoke Sound, was passed upon by the court.
In addition to quoting the language in the case of Wharton v. Wise, the court said:
“So, in the present case, looking at the object evidently intended by the prohibition of the Articles of Confederation, we are clear they were not directed against agreements of the character expressed by the compact under consideration. Its execution could in no respect •encroach upon or weaken the general authority of Congress under those articles. Various compacts were entered into between Pennsylvania and New Jersey and between Pennsylvania and Virginia, during the Confederation, in reference to boundaries between them, and to rights of fishery in their waters, and to titles to' land in their respective states, without the consent of Congress, which indicated that such consent was not deemed essential to their validity. Virginia and Maryland were sovereign states, with no common superior and no tribunal to determine for them the true construction and meaning of its provisions in case of*75 & conflict of opinion upon the subject. Each state was left to decide for itself as to their true construction and meaning, and to its own sense of the obligations of the compact for their enforcement. If, therefore, the Congress of the United States, which, as said above, never complained of the compact of 1785, had interposed objections to its adoption or enforcement as being within the meaning of the terms ‘treaty’ or ‘confederation,’ or as establishing an alliance within the prohibition of the articles mentioned, yet it would not lie in either of the states that were parties to the contract to allege its invalidiy on the subject. As said by Mr. Steele, in his very able and elaborate opinion, upon the construction of provisions of the compact, given to the governor of Maryland, and which is referred to in the record, they cannot complain that there was in its adoption any breach of good faith towards themselves, and we may add, or any rupture by them of the league of friendship declared to be the object of the articles to establish.
“In our judgment the compact of 1785 was not prohibited by the Articles of Confederation. It was not a treaty, confederation, or alliance within the meaning of those terms as there used, and it remained as a subsisting operative contract between them in full force when the Confederation went out of existence upon the adoption of the present Constitution of the United States. And it was not affected or set aside by the prohibitory clause of that instrument. Its prohibition extends only to future agreements or compacts, not against those already in existence, except so far as their stipulations might affect subjects placed under the control of Congress, such as commerce and the navigation of public waters, which is included under the power to regulate commerce.”
The same language was again quoted with approval in Stearns v. Minnesota, 179 U. S. 223, 45 L. ed. 162, 21 Sup. Ct. Rep. 73, and again in Louisiana v. Texas, 176 U. S. 1, 44 L. ed. 347, 20 Sup. Ct. Rep. 251.
In the ease of Fisher v. Steele, 39 La. Ann. 447, 1 So. 888, the validity of an appropriation made by the Louisiana legislature for the construction of levees in Arkansas and along the Mississippi river north of Louisiana was involved. This case is very similar to the one at bar, as it was to prevent the flooding of lands in Louisiana, just the same as the improvement in question was to prevent the flooding of lands in North Dakota. A compact between two states was involved, as the
“The seventh objection invokes the 2d paragraph of § 10 of article-1 of the Constitution of the United States, which reads: ‘No state shall,, without the consent of Congress, . . . enter into any agreement or compact with another state or with a foreign power, or engage in war unless actually invaded, or in such imminent danger as will not admit, delay.’ ”
“On reading that objection in connection with the constitutional prohibition just quoted, the mind would naturally expect a charge' that the state of Louisiana was projecting a treaty of alliance with the state of Arkansas, or contemplating some joint scheme of commercial or industrial enterprise, or perhaps conspiring for the establishment-of a new confederacy; but great is the relief when the mind is- informed, that the purpose which the plaintiff resists with such a powerful shield, is merely to build a piece of levee in the state of Arkansas, if necessary,, and if that state does not object, or consents. It is, indeed, too clear for argument that such a transaction is no more a prohibited compact, between two states than is contained in the requisition of our governor for, and the consent of another to, the capture and arrest of a fugitive from justice.”
Again, and as early as 1853, and in the case of Union Branch R. Co. v. East Tennessee & G. R. Co. 14 Ga. 327, the Georgia court upheld the right of the state to authorize a foreign railroad to construct a bridge across the boundary line, with the consent and agreement of the two states. In its opinion, the court said: “This prohibition applies only to such an ‘agreement or compact’ as is in its nature-political; . . . the framers of the Constitution clearly intended nothing more . . . than to prohibit the several states from exercising their authority in any way which might limit or infringe upon a full and complete execution by the general government of the powers-intended to be delegated by the Federal Constitution.”
See also Dover v. Portsmouth Bridge, 17 N. H. 200.
In the Barron Case, 7 Pet. 243-248, 8 L. ed. 672-674, Mr. Chief Justice Marshall said:
“The question thus presented is, we think, of great importance, but not of much difficulty. The Constitution was ordained and estab*77 listed by tbe people of tbe United States for. themselves, for their own government, and not for the government of the individual states. Each state established a Constitution for itself, and in that Constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred-on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. There are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes. . . . The 9th section having enumerated, in the nature of a bill of rights, the limitations intended to be imposed on the powers of the general government, the 10th proceeds to enumerate those which were to operate on the state legislatures. These restrictions are brought together in the same section, and are by express words applied to the states. ‘No state shall enter into any treaty/ etc. Perceiving, that in a Constitution framed by the people of the United States, for the government of all, no limitation of the action of government on the people would apply to the state government, unless expressed in terms, the restrictions contained in the 10th section are in direct words so applied to the states.
. “It is worthy of remark, too, that these inhibitions generally restrain state legislation on subjects intrusted to the general government, or in which the people of all the states feel an interest. A state is forbidden to enter into any treaty, alliance, or confederation. If these compacts are with foreign nations, they interfere with the treaty-making power, which is conferred entirely upon the general government; if with each other, for political purposes, they can scarcely fail to interfere with the general purpose and intent of the Constitution. To grant letters of marque and reprisal would lead directly to war; the power of declaring which is expressly given to Congress. To coin money is also the exercise of a power conferred on Congress. It would be tedious to recapitulate the several limitations on the powers of the states which are contained in this section. They will be found, generally, to restrain state legislation on subjects intrusted to the govern*78 ment of the Union, in which the citizens of all the states are interested. In these alone were the whole people concerned. The question of their application to states is not left to construction. It is averred in positive words.”
It is true these words were largely dicta, but they are illuminating nonetheless. See also Mackay v. New York, N. H. & H. R. Co. 82 Conn. 73, 21 L.R.A. (N.S.) 768, 72 Atl. 587; Searsburg v. Woodford, 76 Vt. 370, 57 Atl. 961.
The rule is summed up in 36 Cyc. 838, as follows: “This provision, however, does not apply to every possible agreement or compact between two states, hut only to such as might tend to increase the political power of the states affected, and thus encroach upon or interfere with the supremacy of the United States; agreements which can in no respect concern the United States may be made by the states without the consent of Congress. The consent of Congress to an agreement between states may be given after as well as before the making of the agreement, and need not be expressed in any particular form; it is sufficient that Congress, by some positive act in relation to the agreement, has signified its consent thereto.”
The same considerations apply when we come to consider appellants* point, that the attempted construction and maintenance of the portion of the drain which lies north of the international boundary, line is an attempt to forcibly submit the plaintiffs and their lands to the sovereignty and control of a foreign independent nation, and to deprive them of liberty and property without due process of law and the equal protection of the laws, and to abridge and destroy the. privileges and immunities of citizens of the United States. How the purchase or the agreement for the construction of a right of way or drain in Canada, which is necessary for an outlet to a. drainage system in the United States, subjects any person to the control of a foreign nation, it is difficult for us to see. This is not a case of constructing a drain in Canada with an outlet in the United States, but of constructing a drain in the United States with an outlet in Canada; the outlet merely being the incident. It is no different than the purchase of a piece of land by the state of Virginia in the state of New York, which the former state might desire to acquire as a site for a public building, or for the purchase of a building in Illinois for the purpose of exhibiting
Nor, too, do we believe there is any merit in the contention that the defendants had any authority to stipulate to pay damages or losses which might occur to the Canadian municipality on account of the drain. Whether this agreement could be enforced or not, is a matter which we do not care to- pass upon. The municipality of Arthur does not seem to have repudiated the contract, and no demand for any such losses has yet been made, and we do not believe that the contract can be collaterally attacked.
Nor do we believe that the agreement was in any way in conflict with the treaty between the United States and Canada, known as treaty series No. 548, ratified by the President of the United States, April 1, 1910, and by Great Britain on March 31, 1910.
The preamble of this act limits it (1) to disputes regarding the use of boundary waters; (2) the settlement of all questions which are now pending between the United States and Canada involving the rights, obligations, or interests of either in relation to the other or to the inhabitants of the other along,their common frontier; (3) to make provision for the adjustment and settlement of all such questions as may hereafter arise. This preamble in no way covers the situation which is before us. There has been no dispute, — there has merely been a request for a license. Neither do- we find, from the body of the act, any provisions which seem to deprive the local municipalities of the powers exercised in the case before us. The only provisions cited by counsel are the following:
“Article III. It is agreed that, in addition to the uses, obstructions, and diversions heretofore permitted or hereafter provided for by special agreement between the parties hereto, no further or other uses or obstructions or diversions, whether temporary or permanent, of boundary waters on either side of the line, affecting the natural level or flow of boundary waters on the other side of the line, shall be made except by authority of the United States or the Dominion of Canada within their respective jurisdictions, and with the approval, as hereinafter provided, of a joint commission, to be known as the International Joint Commission.”
“Article IV. The High Contracting Parties agree that, except in*80 ■cases provided for by special agreement between them, they will not permit the construction or maintenance on their respective sides of the boundary of any remedial or protective works or any dams or other obstructions in waters flowing from boundary waters or in waters at .a lower level than the boundary in rivers flowing across the boundary, the effect of which is to raise the natural level of waters on the •other side of the boundary unless the construction or maintenance thereof is approved by the aforesaid International Joint Commission.
“It is further agreed that the waters herein defined as boundary waters and waters flowing across the boundary shall not be polluted •on either side to the injury of health or property on the other.”
“Article VIII. —The International Joint Commission shall have jurisdiction over and shall pass upon all cases involving the use or •obstruction or diversion of the waters with respect to which under articles III. and IV. of this treaty the approval of this Commission is required. . . .
“In cases involving the elevation of the natural level of waters •on either side of the line, as a result of the construction or maintenance on the other side of remedial or protective works or dams or other obstructions in boundary waters or in waters flowing therefrom or in waters below the boundary in rivers flowing across the boundary, the Commission shall require, as a condition of its approval thereof, that suitable and adequate provision, approved by it, be made for the protection and indemnity of all interests on the other side of the line which may be injured thereby.” [36 Stat. at L. 2449-2452.]
It is clear that these provisions do not apply. There is here before us no question of artificial dams or of the artificial raising of waters. The waters are not boundary waters. All we have before us is a case where the drainage commissioners are seeking to dispose of the surface waters of their district. The Mouse or Souris river is a natural drain way, even though not a navigable river. Under the laws of both Canada and of North Dakota the upper riparian owners have the right to make use of it as a drain way, and it is beyond the power of the lower riparian owners to prevent or obstruct the flow to the detriment of the upper or superior lands or territory. See Soules v. Northern P. R. Co. 34 N. D. 7, L.R.A.1917A, 501, 157 N. W. 823. If the commissioners had stopped their work at the border, we hardly believe
There is no merit in the contention that the defendants S. E. Brady and Adam W. Ganstz, not since the 13th day of June, 1911, had any lawful right or authority to represent said McHenry county or said drainage board, or to do any act or suffer any omission with reference to said board, and that the purported contract made with the defendants Erance Dredging & Construction Company, is illegal and void. The officers in question were at least de jure officers, and it is quite clear that their acts cannot be here attacked. Page & Jones, Taxation by Assessment, § 1009; 2 High, Inj. 4th ed. 1312-1335; Graeff v. Felix, 200 Pa. 137, 49 Atl. 758.
The judgment of the District Court is affirmed.
Dissenting Opinion
(dissenting specially). In this case several years ago the drainage commissioners of Bottineau and McHenry counties undertook as a drainage project to deepen, widen, and straighten the channel of the Mouse river in the said counties, and for 15 miles into Canada. In so doing they acted under the statute for the construction of drains, and all their doings must be governed by that statute in just the same manner as though there were no stream called Mouse river. The total cost of the drain as - estimated was $142,000, of which $70,000 was for improvements in Canada. This suit is a second edition of an appeal from Judge Templeton in which the weight of judicial authority was about equally divided. 21 N. D. 1, 129 N. W. 83. The suit is to restrain further proceedings for the construction of the drain, and that all doings of the commissioners be adjudged null and void. The majority of the judges denied the relief, and the result must be a multitude of suits, — a suit by each person to abate and cancel any assessment that may be laid against his land for any sum in excess of special benefits. With so large an expenditure in Canada charged
The owner of land benefited by a drain must contribute his pro raía share to the expense of the drain to this extent that it contributes to the value of his land. That is the limit of his liability. The drain commissioners are bound to know the simple rule of law, and to levy no assessment against property in excess of actual benefits to the same. Drain commissioners are not judicial officers. They act under a statutory power and must keep within the limits of their power. When an assessment is materially in excess of benefits, it is a fraud on the law and a usurpation of power which the courts must correct.
Of course the drainage commissioners had no- power to make any special assessment against the lands in Canada, and they did not attempt to do it. The moment they stepped across the boundary line they ceased to have any official authority to contract or to do anything whatever. Then- every act done by them was that of a volunteer private party. And yet for the drainage improvements made, or to be made in Canada, the commissioners have assessed the total expense against the land and municipalities on the south side of the line, and in that way every assessment has been made for an excessive amount. The excess depends mainly on the sum which was added to defray the improvements made in Canada, including the surveys, the commissioners’ charges, and everything thereto appertaining, and there may be other excessive charges.
It is needless to spin out a long decision on questions of estoppel, res judicata, and the power of a state to make treaties with other states. In any view that may be justly taken of this case, the special assessments which have been made are all excessive and void. It is said that during the pendency of this action the drainage boards have gone on and completed the drainage project, and that Bottineau county has
The x’ight to a preliminary contest on the mere percentage of benefits is no protection. It is only a contest on the percentage of cost and plunder that may be charged and extexxded as a tax agaixxst each tract of land. It in no manner affects the total amoxxnt, and that is by far the most important matter;
In so far as the Erickson Case, 11 N. D. 494, 92 N. W. 841, holds
In this case it is clear that, without any legal notice to the parties interested, the sum total of the expense of the" drain was. computed and allowed by the commissioners, and extended, in whole or in part, against the lands and municipalities, and it was grossly excessive. Hence, it should all be set aside and declared and adjudged to be void.
Then on a proper notice and hearing, a personal notice by mail or otherwise, to every party interested, the board of commissioners might compute the total necessary expense of ‘ the drainage proceedings in McHenry county and in Bottineau county, and apportion and extend the same against the several tracts of land and municipalities. But regardless of the total expense, the sum extended and charged against any tract of land or municipality must not exceed the special benefits to the same.
In this case there is no use of talking of res judicala or the force of any prior decision binding on this court. Though it is the custom of courts to adhere to their own blunders and pile error upon error, the nefarious custom is not a law, and the custom is of less force when a party invokes a prior decision made by a bare majority of one judge, or by three judges voting against three judges, including the trial judge.
It is high time for the supreme judicial tribunal of this state to reconsider its errors and to place its decisions on a higher and better plane. In this state the drainage statutes have been used to promote graft and jobbery, with big fees and expenses for drain commissioners and their attorneys. The drainage laws and decision have given a rich reward to jobbery and oppressive litigation. In 11 N. D. reports, there are decisions in fourteen drainage cases arising in Cass county, and in each case the sum total of the drainage assessment was twice the benefits. In each case the legal fight was a mere sham; it was a game with loaded dice. In the Erickson Case, supra, the total cost was $12,000, including $13,000 for attorneys’ fees and commissioners’ fees and junketing trips around the country. Bridges costing $500 or $600 were built for no possible use only to make costs; bridges that have lain there to rot, without any possibility of using them. This Erickson Case has been a blind leader of the blind. It has no support
As the Drainage Law was construed in the Erickson Case it is not constitutional. It puts the citizen completely at the mercy of the drain commissioners, permitting them to fix the total amount of an assessment against lands, including the charges of themselves and their attorneys and friends, without giving any notice to the owner of the land. Under the law of the land a person must have a fair hearing and a fair opportunity to contest the sum total of all costs and plunder that drain commissioners may charge against his land, and not merely a bootless opportunity to contest the rate or per cent of the amount. The one may be clearly right, and the other clearly outrageous.
Inasmuch as the Drainage Law gives no opportunity for a hearing on the sum total of all loot and costs the drain commissioners may cause to be extended as a lien and judgment against lands on. the tax list, the law does in effect give judgment and execution without a hearing. Comp. Laws 1913, §§ 2474, 2479. Hence the law cannot be sustained without holding that the landowner has an ample remedy by a suit to abate any assessment in excess of benefits to his land. In the Erickson Case, 11 N. D. at page 498, 92 N. W. 841, it is said thus: “It is well settled that where a provision is made for notice to and hearing of each proprietor at some stage of the proceedings upon the question of what portion of the taxes shall be assessed upon his land, there is no taking of his property without due process of law.” That proposition is grossly erroneous when applied to a special assessment, because, as we have said, the per cent may be just and reasonable, and the total amount may be outrageous. On this the court cites several decisions which hold directly to the contrary.
There is Hagar v. Reclamation Dist. 111 U. S. 701, 28 L. ed. 569, 4 Sup. Ct. Rep. 663. This was under the laws of California, and the special assessment was made without notice and sustained because it could only be enforced by legal proceedings in which the landowner might avail himself of any defense going either to the validity of the amount or of the assessment.
So in State ex rel. Dorgan v. Fisk, 15 N. D. 226, 107 N. W. 191, this court cites a Wisconsin and Nebraska case to sustain the power of commissioners to make drains and to levy assessments for the same.
In Nebraska the statute makes the county commissioners a drainage board, and authorizes them to make assessments without notice; but the court holds that on such an assessment a party cannot be denied the right to a review by the courts.
In Hackney v. Elliott, 23 N. D. 373, 137 N. W. 433, Ex-Judge Goss wrote a thirty-seven page opinion on the drainage question, and concluded that the validity of the statute had been sustained by the United States Supreme Court. But the case was merely an appeal from a decision on demurrer, and it presented no question on the power of drain commissioners to levy a final assessment, without notice, or to act as judges in their own case. And the judges of this court may well take judicial notice of what is known to every person of common sense and observation in drainage cases, that a large bulk of the cost is composed of charges going into the pocket of the drainage commissioners. It is no uncommon thing for them to meet ten minutes on a day and charge up for a day’s work, and to allow their attorney a fee of $1,000 as a retainer. That was the retainer in the Erickson Case.
In this case we must realize that drain commissioners act under a statutory power, which must be strictly observed. They are not judges; they have no judicial power. The statute gives them no power to expend $70,000 on the construction of a drain in a foreign country, and to charge the same against land in this state. Yet, that is what they have done in this case. Hence, as this court does not provide for a fair and just rating and adjustment of the legal charges ag'ainst the lands, the result will be a multiplicity of suits, because every landowner will have a perfect legal right to commence and maintain an action for himself to abate all illegal and excessive charges against his own land, and to abate any assessment in excess of actual benefits, to the land. Of course so far as the special assessments have not yet been made and extended against any lands, there is nothing in the decision to prevent the same from being limited to actual benefits, — so as tb avoid needless litigation.