32 Ind. 169 | Ind. | 1869
The appellant O’Reilly filed his complaint in the Newton Circuit Court. Subsequently, on motion, other parties were admitted as plaintiffs. As the complaint states fully the questions presented, and the articles under which the appellee claims to act are set out therein, we give, itin substance:—
J ames O’Reiley, the plaintiff' in this suit, complains of the Kankakee Valley Draining Company, the defendant, and says that the plaintiff is- the owner in fee simple of the following described land, situated in Newton county, to wit: the south-west quarter of the south-west quarter of section four in township thirty, north of range eight west, which lies in the valley of the Kankakee river, and near to the said river; that the same is wet or marsh land, the surface water, from which naturally flows into the Kankakee river. He further says that the .same is a part of the
And the plaintiff’ says that the -defendant now claims that it has, at some time and in some manner, adopted the provisions of the act of May 22d, 1869, entitled “ an act to au
And the plaintifi’ -further says, thatsthe defendant has applied to the Court of Common Pleas of the -county of Laporte, and has causeddhe appraisers to be appointed by said court, to examine all -the lands by them supposed to -be affected by the construction of the said work, including the said land of the plaintiff; and to assess against each tract of such land the amount of benefit which, in their opinion, the same will receive from the construction of said work; and also to assess the damages which it may sustain. And the said defendant has given public notice, by publishing the same in a newspaper in each of the bounties in which any part of said proposed work is situated, that on the first day of July, 1869,the said appraisers would begin the examination of the lands and assessment of benefits and injuries thereto, at the .intersection of -the west line of
“W. C. Hannah, .President K. V. D. Co.”
And the plaintiff says that the defendant has given no other notice of the time when his said land will be examined by the appraisers and the assessment made against the same, and! does not propose or intend to give any further or other - notice thereof. And the plaintiff further says, that he is informed,,and believes it to be,true,.that the. said
The complaint was sworn to. Special answers were filed, to which demurrers were addressed, on the ground that the .facts stated therein did not constitute a defense to the action. These demurrers were overruled to the answers and sustained to the complaint. Its sufficiency is, therefore, the ■question presented for our consideration.
The Kankakee Yalley Draining Company, the appellee, was organized under the act of June 12th, 1852, entitled •“an act to authorize the construction of levees and drains,” and the acts supplementary to, and amendatory of, that act. But it claims now to exist and to exercise the powers it assumes, under the act of the last legislature, entitled “ an act to authorize and encourage the construction of levees, dikes, and drains, and the reclamation of wet and over■.flowed lands by incorporated companies, and to repeal all former laws relating to the same subject.” This act took effect May 22d, 1869. Laws of 1869, Spec. Sess., p. 82.
Eor greater convenience we will here present a summary >of that act:—
Section one provides, that any number of persons, not less ■than three, being owners of lands wet or liable to be overflowed, may organize a company for the purpose of draining, re- . claiming, and protecting such lands, which shall have power to straighten, widen, deepen, and make new channels for the whole or any part of any river, or water course, and to construct any dikes, drains, levees, and break-waters, and to ■do anything which they shall deem proper to accomplish the purposes for which the company shall have been organized.
Section two directs, that they shall file articles of association specifying .the .name and purposes of the company;
Section three provides, that the articles of association shall be recorded in the recorder’s office of the several counties in which any part of the work may be situated, and that from the time of filing in any such county, the company shall be a body corporate, with all powers incident to such bodies; “and to consummate the purposes for which it was organized; and to buy, receive donations of, and hold, and sell, and convey any lands benefited, or to be benefited, by the proposed work of the company;” and that any person owning land supposed to be liable to be affected by such work, may become a member of the company by signing the articles of association; and that the corporate existence of the company shall be judicially recognized, and that the records of the company shall be prima facie evidence of its acts.
Section four provides for the appointment of the time and place 'óf an annual election, and for the giving of notice.
Section five provides, that a majority of the directors shall form a quorum, and have control and management of the business and affairs of the company. That they shall appoint a president, secretary, and treasurer, and such other officers and agents as they' may see fit, all of whom shall be entitled to a fair compensation. That the treasurer shall give bond; that the president, directors, secretary, and treasurer shall hold office one year, and until successors are chosen, and that they shall be sworn, &e.
“ Sec. 6. The company may apply to the circuit court or court of common pleas, in term time, or to a judge thereof in vacation, of a county in which any part of the proposed work shall be situated, which court or judge, as the case
“Sec. 7. Before the actual -construction of the work shall be begun, surveys of it and estimates of its cost shall be made, and the appraisers’ schedules of assessments returned to the secretary, and if the estimated cost of the work shall exceed the aggregate amount of the assessments, the work shall not be further prosecuted.
“ Seo. 8. Before the actual construction of the work shall be begun, the company shall divide the main line of their work into as many sections, of not exceeding six miles in length, as may be convenient, and each of such sections, with its_ auxiliaries, branches, and tributaries, shall form a separate division of the work; and they shall also appropriate and set apart as applicable to, and hold the- same inviolate for, the -construction of each of such divisions respec
“ Sec. 9. The owners of land liable to bo affected by the work of a company, shall have notice of the time and place, when and where, the appraisers will begin the examination of lands and the assessments of benefits and injuries thereto, and of the order in which it shall be intended to proceed with the same, which notice need not specify what lands are to be examined or assessed, but may be general and addresed to the public, and shall be sufficient if published for three successive weeks in a newspaper published in the county in which the lands are situated, and proof of its-publication may be made by the affidavit of the printer or publisher of the paper in which it is published, or of the secretary of the company.
“ Sec. 10. The board of directors may order the payment of said assessments in installments, not exceeding ten per centum per month, and payment thereof shall be made to the treasurer in compliance with such order: Provided, That no more shall be collected than shall, in the opinion of the directors, be required for the legitimate purposes of the company in the prosecution of the work ; and provided further, That unless the main line of the company’s proposed work shall exceed twenty miles in length, no part of' the assessments shall be collected by the company until the' company shall have given bond payable to the State of Indiana, with surety approved by the circuit or common pleas-court or a judge thereof of a county in which the work or some part of it is situated, conditioned for the faithful
“Seo. 11. Payment of assessments of benefits may be enforced by the foreclosure of the lien in any court of competent jurisdiction, in the same manner as is provided by law for the foreclosure of mortgages and the sale of mortgaged premises for the collection of debts, and payment of damages assessed for injuries to lands may be enforced by an action in a like court.
“ Sec. 12. The company may appropriate any land, stone, timber, gravel, or other materials necessary for the right of way, or the construction, maintenance or improvement of their proposed work, by first paying into the county treasury of the county where the land is situated, for the use of the owner of the land, the amount of damages assessed by said appraisers to him therefor.
“ Sec. 13. Any company whose work shall be estimated to cost three thousand dollars or more, may issue their bonds, with or without coupons, not exceeding in the aggregate the estimated cost of their work, which bonds may each be of any denomination, and payable at any time and place, and bear any rate of interest not exceeding ten pfer centum per annum, payable annually or semi-annually, and may secure the payment thereof by a pledge or pledges, or mortgage or mortgages upon said assessments for benefits to lands or any part thereof, or any other property of the company; which pledges and mortgages may each provide for a sinking fund for the gradual extinguishment of the
“ Sec. 14. After the expiration of three years from the recording of the appraisers’ schedule of assessments in any county, no action shall be instituted to foreclose any lien on land situated in such county., unless the assessments secured by such lien shall have been pledged or mortgaged as security for one or more bonds then outstanding; and in such cases no tract of land shall, after the lapse of said three years, be liable for more than its fair proportion of the assessments pledged or mortgaged as security for the bonds of the company and required for the extinguishment thereof.
“ Sec. 15. No informality, irregularity, or omission, which shall have occurred, or which may occur in the organization or proceedings of any company, or in the appointment or proceedings of any of their officers, agents, or the appraisers, shall affect the rights and privileges of such company, or invalidate the assessments of the appraisers, nor any sale of land which shall be made under any foreclosure of any lien for the assessment thereon, provided the amount of the assessment shall be clearly set forth in the appraisers’ schedule, and the schedule shall have been duly recorded, and notice of the recording thereof given as hereinbefore provided.”
Section sixteen provides, that all members shall be individually liable for all manual labor performed.
“ Sec. 17. All laws contravening or conflicting with any of the provisions of this act, and all laws now, or at any time heretofore, in force, relating to incorporated companies or associations for constructing levees and drains, are hereby
Section eighteen declares an emergency.
The act reserved from the general repeal enacted by section seventeen, is an act of the character designated in its title. It authorizes the owner of wet lands to drain them, and to that end to acquire the necessary easement in contiguous lands. Laws of 1867, p. 186.
The first objection urged to-the validity of the act is, that it does not sufficiently declare or manifest that the drainage of these lands is a matter of public importance. _
If we admit that the use of the power conferred must be for the benefit of the public, it does not, therefore, follow that such purpose must, of necessity, be declared in the act. The courts cannot .be controlled by such a declaration, but they must examine and decide whether the use is a public use. 2 Kent, 340; Scudder v. The Trenton Delaware Falls Co., Saxt. 694; Austin v. Murray, 16 Pick. 121; Coster v. The Tide Water Co., 18 N. J. Eq. 54.
This public use or benefit need not extend to the whole public, or any large portion of it, within the jurisdiction of the legislature. It may be limited to the inhabitants of a small locality, but the benefit must be in common, not to particular persons or estates. Coster v. The Tide Water Co.,
The use contemplated is for all alike, and upon the same terms. It is for the public, however few the number of' that public may be who are expected to avail themselves of its benefits. It is common to all. This cannot be said of the act in question, except so far as the public health may be involved.
But, in our judgment, the laws authorizing the draining of swamp lands may rest upon another legislative power. This power is so clearly stated, in the case already cited from 18 N. J. Eq., supra, that we prefer to quote at some length from the opinion. The question arose upon the constitutionality of an act incorporating certain persons, who had no interest in the lands affected by the contemplated drain, authorizing them to contract with three commissioners, appointed by the court, to drain certain lands, miles apart, whose system of drainage was entirely independent. The act proposed to give ten strangers, having no interest in common with the owners, and against their wills, an annual rent charge, or incumbrance, forever, upon their lands, the amount to be fixed by the three commissioners appointed on application of the company. These commissioners were not required to be freeholders or residents, to be impartial, or to be sworn. They were to contract with the company to drain the land. They were to determine the location of the drains and fix an annual compensation therefor. No limit was placed upon their discretion. The cost of the work formed no prescribed guide in this fixing of an annual tax for all time. Semi-annual dividends were required to be declared from the profits of the company. In the decision of the case this language is used:
“But this is a power to be exercised for the benefit of the parties affected, not for that of strangers. If the building and maintenance of party walls was authorized and regulated, it was to be done by the adjoining lot owners, or one of them, not upon application of some enterprising or favored mechanics for the right to build party walls between all the lots in a certain town, at a goodly profit, and this, whether the owners wanted party walls or not.
“Many private acts have been passed in this State for the the draining of meadows, allowing commissioners appointed by the legislature, or as they are in this case, to lay out the ditches and drains, and to assess and collect the expense of the drainage, including the compensation of the commissioners, out of the lands drained. I have been referred to, and examined, hundreds of such acts, in this.State and the State of New York.
“But all these acts are understood to have been passed by the legislature, upon the application of some of the owners of the land affected by them, generally a majority, and always passed only for their benefit. Whether it is necessary to the validity of such an act, that it should be passed . on the application of the owners, or some of them, I do not now mean to decide. It seems that to make a police regulation for the benefit of several adjoining owners, such, in the true sense of the phrase, it ought to be invoked or put in motion by the parties to be benefited, or some of them, and not by strangers, who expect to profit by the execution of it; as a public war should be declared for the benefit of the country, and not of the hangers-on and retainers of the army engaged in it.'
“But there is another peculiarity in all these police laws that is of their very nature and essence, which is, that they assess on the persons or property benefited, only the expense of executing the improvement. The object of passing them, and the only reason of the existence of this power in the legislature is, that parties may be enabled, by making the improvement in common, to save useless expense, or that one person may be allowed to do something necessary to the use of his property, by using his neighbor’s land in a way beneficial to both. A profit carved out for strangers is inconsistent with this.
“I find no case reported, and among the number of acts examined I do not find a single one, where any burthen is imposed upon the lands' drained, except the actual expense of drainage. The principle of them all is, to make an improvement common to- all concerned, at the common expense of all. And to effect this object, the acts provide that the works to effect the drainage may be located on any
“The act under consideratiomdoes not fall,within the principles on which.these laws regulating the use and, enjoyment of property, known as police laws;, are-based.. While it provides for the drainage of lands, it. is not enacted at the request, or for the-benefit of the-: landholders, but that the company may make a profit out of the scheme. And were • not this object specially provided for, so as to appear from the whole act to- be-themaim end in view; if the act did not limit all charges, to. actual expenses, but permitted more to be levied and charged, in such manner that the courts could not control the¡ excess; I should hold it void.”
In the case of Cypress Pond Draining Co. v. Hooper, 2 Met., Ky. 350, where the act of the legislature authorized certain persons to levy a yearly tax not exceeding twenty-five cents per acre, on all the lands in a certain locality, for the purpose of draining certain lands within that district, it was held that the act was void solely in that the burthen had been imposed without any view to the interest of the
In Reeves v. The Treasurer of Wood Co., 8 Ohio St. 333, in passing upon the constitutionality of an act to authorize the location of ditches in certain cases, it was ruled that the legislature had the power to authorize special and local impositions upon property in the immediate vicinity of an improvement which were necessary to pay for the improvement and laid with reference to the special benefit which such property derived from the expenditure.
In Hartwell v. Armstrong, 19 Barb. 166, the court, indeed, attempted to rest this power upon the right of eminent domain, and having erroneously placed it there, decided that the benefit conferred was'not the proper test of assessment. The distinction between the taking of private property by the right of eminent domain, and the assessment for local improvements in proportion to the benefit received, was recognized by the Court of Appeals of that State, in People v. Mayor, &c., of Brooklyn, 4 N. Y. 419;—the exercise of the one taking property, not as the owner’s share of the public burthen, but as so much in excess of his proportion; the other as his due contribution for special benefit received. The power to authorize the reclaiming of certain districts from inundation was recognized in Egyptian Levee Go. v. Hardin, 27 Mo. 495, and the propriety of charging the expense against the reclaimed land was asserted. So in Ex Parte New Orleans Draining Co., 11 Lou. An. 338.
These citations are deemed sufficient to show the current of decisions on this subject. Somewhat fuller references are made in the case of Palmer v. Stumph, 29 Ind. 329.
The power of the legislature to authorize the organization of companies for the purpose of draining swamp lands, has been repeatedly affirmed in this court, though the ground upon which the power rested has not been very clearly declared. In Anderson v. The Kerns Draining Co., 14 Ind. 199, it is not stated whether it springs from the
The citations we have made clearly derive the authority from the power existing in the legislative department of the government commonly called the police power—the right to require the owner of property to so use his own, that his neighbor may have such reasonable enjoyment in his own possessions as naturally adheres to such a species of property.
This power may be abused, but all power may be arbitrarily exercised. This will not authorize the judicial department to deny a long recognized authority in the legislative branch. Its abuse must be prevented by the court, but its reasonable exercise cannot be denied.
The question is, therefore, whether the law under consideration is an abuse of this power. It is claimed that the act and the organization under it of this company are on such an extensive scale that the rule regulating the use of property among neighbors can have no application; and the averment in the original complaint, that the land of the plaintiff is in no manner noxious to the public health, and that the safety or health of the public will in no wise be promoted by draining or reclaiming the same, seems to form a foundation for the objection. But in making a drain to reclaim swamp lands, all whose lands are affected must bo regarded as having a common interest, and one through whose land the drain must of necessity pass could not object that his land was not of itself noxious to the public health. If such an objection can be made, it must go further, and aver that the drain, in its general purpose, would not benefit the public. One man cannot restrict an improvement for the public good because his land does not directly injure the public. It does inflict .such injury if it prevents a public good from being accomplished. If .thejpower, therefore, .to construct the drain be limited to .a
It is objected, that the law does not ascertain the swamp lands to be affected. This is a question of fact, and provision is made for determining the benefit and injury to all lands through which the drain may pass. This involves the determination of this 'question by the' persons who may be designated under the-provisions of the act.
The act is objected to, also, in that it does not limit the assessment to the actual cost of the work. But this criticism, we think, is an error. Tha= tenth section provides, “ that no more shall be collected than shall, in the opinion of the directors, be required for the legitimate purposes of the company in the prosecution of the work.” While the act authorizes the company to purchase- lands which have been drained and arc sold for the purpose of paying the assessments, it is clear that such investments are not' one of the “ legitimate purposes of the company in the prosecution of the work.” Such investments must be provided from the private means of the company.. No surplus can be accumulated by taxation of the-lands. The limit of taxation is the actual expense of the-improvement.
But it is again insisted; that the-articles of association do not specify the purposerfor which the company is organized, within tire intent of the act as explained in the third section, which provides, that any person- owning land supposed to be liable to be affected by such work, may become a member of the- company by signing the. articles of associaation. This privilege all interested, can avail: themselves of, if the law is fully and fairly complied with. If the purpose of the company be plainly declared,.every one can tell by an examination of its articles whether he may be liable to become involved in.-its operations. If so:interested, he may become a member, and share equally, with the original corporator's in the control. In.- this case, it is declared, that “the objects <^f the association are:. 1. To reclaim or improve the lands of the valleys- of the - Kankakee river and
This, in our judgment, is not a compliance with an essential prerequisite to the organization of the corporation. The lands to he affected by the proposed work must bo described in the articles of association, or such a. plain description of the commencement, the line, and the termination of the ditch, as will enable all persons to form with reasonable certainty an opinion regarding their personal interest in the eorpoi’ation.
The demurrer should have been overruled to the complaint, as it disclosed the fact that no such association as the appellee was legally authorized to.-make any assessments upon the lands of the appellants.
Judgment reversed, and cause remanded for further proceedings in accordance with this opinion. Costs here.