161 Iowa 26 | Iowa | 1913
On July 10, 1909, John EL Raaz filed' a petition with the county auditor of Greene county praying that a drainage district be established, describing the forty acre tracts to be included therein. This petition was accompanied by the required bond, and EL W. Bean was designated as engineer to examine “the land described in said petition and any other lands which would be benefited by said improvement or necessary in carrying out of said improvement.” Ele filed •his report April 11, 1910; that he had examined land as
On June 20th following the engineer filed a supplemental report recommending that certain lands be withdrawn from the district, leaving only eight hundred fifty-seven acres therein. He also said, in substance, that, by “increasing the flatter grades,” the size of the tile might be reduced, and recommended that the seven hundred sixty-two feet of twenty-inch tile be reduced to eighteen inch; the four thousand five hundred feet of sixteen-inch tile be reduced to fifteen-inch; four thousand seven hundred fifty feet of fifteen-inch tile be reduced to fourteen-inch; and seven hundred fifty of twelve-inch be reduced to ten-inch. He estimated the cost with these changes at $10,970.24, or an average of $12.52 per acre.
Again, on July 21, 1910, a fourth supplemental report was filed recommending that all lands in sections 15 and 32 be excluded from the district, and that the highway between sections 21 and 23 be made the limit of the district on the east; “the remainder of the district to remain as shown on the plat.” The appellant, G. W. Munn, filed objections to the establishment of the drainage district June 10, 1910; and the board of supervisors, having heard same, entered an order establishing the drainage district as recommended, making the findings .essential therefor, and Munn appealed to the district court, where the action of the board of supervisors was affirmed, and the cause is here for review.
I. The several objections interposed by appellant and argued may be stated as considered. The first of these is that the report and plat of the engineer was indefinite as to the location of the proposed drains and the boundaries of the district. Section 1989a2 of Code Supplement provides that:
He, [the engineer] shall make return of his proceedings to the county auditor, which returns shall set forth the starting point, the route, the terminus or termini of the said ditch or ditches, drain or drains, or other improvements, together with a plat and profile showing the ditches, drains or other improvements, and the course and length of the drain or drains through each tract of land and the elevation of all lakes, ponds, and deep depressions in said district, and the boundary of the proposed district, and the description of each tract of land therein and names of the owners thereof as shown by the transfer books in the auditor’s office, together with the probable cost, and such other facts and recommendations as he may deem material.
Contrary to the engineer’s suggestion, these matters are intended to be so clear and explicit that the landowners shall understand precisely what is proposed to be done, and there is no reason for not accomplishing this, save that assumption of mystery some experts imagine should obscure scientific deductions.
“Pond” is defined by the lexicographers as a body of water naturally or artificially confined. It is smaller than a lake, but of some appreciable area.
By exacting the elevations of all lakes, ponds, and deep depressions, the statute did not design that levels should be taken of every puddle of water in the proposed district, but of all such of a depth or area necessarily to be taken into account in estimating the character and extent of the drainage system to be adopted. The circumstance of omitting these little dips in the earth, shown to be' readily drainable through the tile at the depth proposed, ought not to be regarded as such a defect as to render the commissioner’s report insufficient upon which to base the order of the board of supervisors.
III. A branch of the proposed drain will enter the west forty of plaintiff’s land from the west and pass to the northeast. This runs through high land. An eight-inch tile drain, with branches constructed about twenty-five years ago, begins at the west line some distance below this branch and follows on a natural swale east and northeast to the north line some distance east of said branch and empties on the forty acres north. The only direct benefit to plaintiff’s forty acres is that the construction of this drain would furnish a tile outlet instead of the swale or ditch into which it now empties. This is of some advantage, depending somewhat on the lay of the land, the character of the soil, the size and grade of the main drain, and the amount of water coming into it from above. If an adequate drain, no argument is required to show that it will carry the water from the lateral more efficiently than would a ditch or swale; Moreover the seepage back into plaintiff’s land of the water emptied at the boundary, which is unavoidable when
Appellant, however, argues that, as there is a fall of about eight feet in about three thousand feet before reaching the point where his eight-inch tile would connect with the main drain, the water from above would necessarily run off before his tile could flow therein. This might be true were the main drain to run full, but, with a fourteen-inch drain and a fall such as described, it is not probable that it will often flow at full capacity, and, when it does not, the drain of plaintiff will empty therein freely. Indeed, the engineer who surveyed for him recommended this branch be of ten-inch tile instead of fourteen inches in diameter, and it does seem that the tile of the branches must be too large (one fourteen and the other fifteen-inch), or the tile of the main (eighteen-inch) too small, for the grade of the latter is considerably less than either of the former. .However, it is not our province to'decide whether a better system might have been adopted, but whether that chosen is such that the board of supervisors were warranted in approving it.
We are of opinion that, in affording a better outlet, the system will be of some benefit to the west forty acres of plaintiff’s land. Another possible incidental benefit is the furnishing to the owner of the land to the west an outlet through which he can, by laying lateral drains, drain his land, so that the water therefrom will not overflow on plaintiff’s land. Such benefit is somewhat remote, but if appreciable is to be considered in ascertaining the benefits derivable from the establishment of the system. See Zinzer v. Supervisors, 137 Iowa, 660. There was no error in including all of plaintiff’s land within the district, and we need not consider whether the. fixing of boundaries of such a district is legislative; that being doubtful, at least, in view of the peculiar provisions of our statutes.
Taxes proper or general taxes proceed upon the theory that the existence of government is a necessity; that it cannot continue without means to pay its expenses; that for those means it has the right to compel all citizens and property within its limit to contribute; and that for such contribution it renders no return of special benefit to any property, but only secures to the citizen that general benefit which results*37 from protection to his person and property and the promotion of those various schemes which have for their object the welfare of all. . . . On the other hand, special assessments or special taxes proceed on the theory that when a local improvement enhances the value of neighboring property, that property should pay for the improvement. (Illinois Central Railroad Co. v. Decatur, 147 U. S. 190, 197 (13 Sup. Ct. 293, 37 L. Ed. 132.)
Speaking of the term “assessment,” the court said in Taylor v. Palmer, 31 Cal. 240, 254:
It is not a power' to tax all the property within the corporation for general purposes, but a power to tax specific property for a specified purpose. It is not a power to tax property generally founded upon the benefits supposed to be derived from the organization of a government for the protection of life, liberty, and property, but a power to tax specific property founded upon the benefit supposed to be derived by the property itself from the expenditure of the tax in its immediate vicinity.
The development of the law of special assessment is interestingly discussed by George, C. J., in Town of Macon v. Patty, 57 Miss. 378 (34 Am. Rep. 451), and in the course of the opinion it is said:
A local assessment can only be levied on land; it cannot, as a tax can, be made a personal liability of the taxpayer; it is an assessment on the thing supposed to be benefited. A tax is levied on the whole state, or a known political subdivision, as a county or town. A local assessment is levied on property situated in a district created for the express purpose of the levy, and possessing no other function, or even existence, than to be the thing on which the levy is made. A tax is a continuing burden, and must be collected at stated short intervals for all time, and without it government cannot exist; a local assessment is exceptional both as to time and locality; it is brought into being for a particular occasion, and to accomplish a particular purpose, and dies with the passing of the occasion and the accomplishment of the purpose. A tax is levied, collected, and administered by a public agency, elected*38 by and responsible to the community upon which it is imposed; a local assessment is made by an authority ab extra. Yet it is like a tax in that it is imposed under an authority derived from the Legislature, and is an enforced contribution to the public welfare, and its payment may be enforced by the summary method allowed for the collection of taxes. It is like a tax in that it must be levied for a public purpose, and must be apportioned by some reasonable rule among those upon whose property it is levied. It is unlike a tax in that the proceeds of the assessment must be expended in an improvement from which a benefit clearly- exceptive and plainly perceived must inure to the property upon which it is imposed, or else the courts will interfere to prevent its enforcement.
And see decisions collected under section 35 of Page & Jones on Taxation by. Assessment.
Because of this distinction, in the absence of anything indicating a contrary intention, the use of the term,“tax” in Constitution or statute is construed not prima facie to establish an intention to include local or special assessments. Page & Jones on Taxation by Assessment, section 39.
We are of opinion that the fact that the officers who levy the assessments are not elected by the electors of the drainage district does not render the statutes invalid, and that the other objections to the establishment of the drainage district were rightly overruled. — Affirmed.