115 N.W. 256 | N.D. | 1908
The sole question involved on this appeal is the constitutionality of chapter 252, p. 389, Laws 1907. This act provides for the making of certain public improvements, such as paving or macadamizing the highways, the construction of sewers, water mains, sidewalks, etc., in those civil townships adjacent to incorporated cities containing at least 6,000 inhabitants, and providing for the payment thereof. ■ The respondents other than Kennedy are
Counsel for appellants concede that the law in question is not open to the objection that it attempts as between the townships of the state to make an unlawful discrimination by the classification thereof; but they assert that the same creates an unfair and unreasonable discrimination between the property owners within such townships, and hence that it violates the constitutional inhibitions against special legislation found in sections 11, 20 and 69, par. 4, of our Constitution. These sections are as follows:
Section 11: “All laws of a general nature shall have a uniform operation.”
Section 20: “Nor shall any citizen or class of citizens be granted privileges or immunities which 'upon the same terms shall not be granted to all citizens.”
Section 69, par. 4: “Special laws shall not be passed regulating township affairs, or [paragraph 23] for the assessment or collection of taxes.”
Section 1 provides, in substance, as follows: “Any civil township in this state adjoining an incorporated city having at least 6,000 inhabitants, and which shall have paved, graded, curbed or macadamized its streets leading to the boundaries of such civil township, or shall have constructed sewers or water mains in such streets, may pave grade or macadamize the highways of such township connecting with such city streets or with such highways so paved, or highways running along the boundaries of such city, or constrict sewers or water mains therein as provided by this act. * * *”
Section 2: “Whenever the owners of real property abutting on such highway * * * and representing a majority by feet of the frontage of said property, shall desire to improve such street or highway as herein provided, they shall petition the board of supervisors * * * setting forth and describing specifically * * * the kind, character and extent of the improvement desired, specifying the width and material of pavement, if any, and the size and material of any lateral sewers or water mains, the number and location of manholes and catch basins for such sewers, and the number and location of fire hydrants for such water mains * * * which petition shall be filed in the office of the township clerk. In the case of trunk sewers, the board shall by majority vote order and construct the same, whenever a majority petition is presented for the construction of lateral sewers that cannot be connected with the city sewers.”
Section 6: “The board shall deem it necessary when a majority petition, above provided for, shall be filed, to construct or alter any sewer or open, widen, extend, pavé, etc., any street, alley, avenue, lane, highway or other public ground within the township limits, or to extend, relay or replace any sewer and watermain. * * *”
Section 7: “After the plans, specifications and estimate mentioned in the preceding section shall have been filed in the^ office of the township clerk, the board shall, by resolution, declare such work or improvement necessary to be done according to such plans and specifications. ***”'•
■ It will be seen by the foregoing sections that the owners of property abutting on the highways mentioned in section one are granted rights and privileges which are not granted to other property owners in the township similarly situated. These first-mentioned persons
Upon what theory or principle can it be said that a few property owners upon one highway in a township may be vested with rights and privileges which are withheld from their neighbors who are, so far as the necessity or desirability for such improvements are concerned, in a similar situation? Such a discrimination is clearly unreasonable and wholly arbitrary and capricious, and cannot be sanctioned by this court. The constitutional mandate against such unlawful discrimination is plain, and has repeatedly been recognized and enforced in this state. A mere reference to such cases will suffice, as the rule is fundamental. Beleal v. N. P. Ry. Co., 15 N. D. 318, 108 N. W. 33, and State v. Mayo, 15 N. D. 327, 108 N. W. 36, and cases cited.
Another ground urged against the validity of this law is that it constitutes an unlawful delegation of legislative power. We have carefully considered this contention, and see no escape from the logic of appellant’s argument. It is, of course, well settled that the
Other reasons are urged by appellant’s counsel for holding such statute void, but our views above expressed render it unneccessary to notice'them.
The order appealed from is reversed; and the cause remanded to the district court for further proceedings according to law; appellants to recover their costs on this appeal.