128 Iowa 442 | Iowa | 1905
The pleadings disclose that the proceedings on the part of the defendant board complained of were being taken and had pursuant to ■ the provisions of chapter 68, page 61, Acts 30th General Assembly. Plaintiff makes direct allegation that the steps already taken were in strict conformity to the provisions of that act, and that, in respect of the further proceedings to be had, exact compliance in -all respects with the requirements of the act was intended. And of these matters the answer makes admission. It is the contention of plaintiff, to be stated in detail presently, that the proceedings so being had and proposed to be had are unauthorized and illegal, for that the act of the General Assembly under which done, in respect at least of many of its provisions, is in contravention of the Constitution and void. And this is the general subject presented for our consideration.
Necessary to a consideration of the questions as precisely made and presented by the record, we should have the material provisions of the act before us, and we set out the same in substance, as follows:
The act is entitled An act to promote the public health, convenience and welfare, by leveeing, ditching and draining the lands of . the State, and providing for the establishment
Section 1 provides that the board of supervisors of any county shall have jurisdiction, power and authority to establish a drainage district or districts, and cause to be constructed as hereinafter provided any . . . ditch, drain or water course, ... in such county, whenever the same will be of public utility or conducive to the public health, convenience or welfare, and the drainage of surface waters from agricultural lands shall be considered a public, benefit and conducive to the public health, convenience, - utility and welfare.
Sec. "2. Whenever a petition signed by one or more of the land owners whose lands will be affected by, or assessed for the expenses of, the proposed improvement, shall be filed in the office of the county auditor setting forth that any body or district of land in the county, described ... is subject to overflow or too wet for cultivation, and that the public benefit or utility or the public health, convenience or welfare will be promoted by draining,' ditching, tiling or leveeing the same, . . . the board shall at its first session thereafter . . . appoint a disinterested and competent engineer . . and he shall proceed to examine and survey the lands described in said petition, and other lands if necessary, and locate such improvement or improvements, . . . as will be for the public benefit or utility, or conducive to the public health, convenience or welfare and he shall make return of his proceedings to the county auditor, etc.
By section 3 it is provided that, if the engineer recommend the establishment of the drainage district, the auditor shall, in a prescribed manner, give notice of the pendency of the petition, the favorable report Of the engineer, the day set for hearing before the board of supervisors, and that all claims for damages must be filed five days before such day for hearing.
Sec. 6. The appraisers . . . shall proceed to . . . determine and fix the amount of damages to which each claimant is entitled and shall . . . file with the county auditor reports in writing showing the amount of damages sustained by each claimant. . . . When the time for final action shall have arrived, and after the filing of the report of the appraisers, said board shall consider the amount of damages awarded in their final determination in regard to establishing such levee or drainage district, and if in their opinion the cost' of construction and the amount of damages awarded is not excessive and a greater burden than should be properly borne by the land benefited by the improvement, they shall locate and establish, the same, and shall thereupon proceed to determine the amount of damages sustained by each claimant, and may hear evidence in respect thereto, and may increase or diminish the amount awarded in respect thereto, and any party aggrieved may appeal from the finding of the board in establishing the improvement district, or from its finding in the allowance of damages, to the district court, . . . which appeal shall be tried in the district court as an ordinary proceeding, except that when
Sec. 7. The amount of damages finally determined by the board in favor of any claimant . . . shall be required to be paid in the first instance by the parties benefited by the said levee or drainage district, or secured to be paid upon such terms and conditions as the county auditor may deem just and proper, and after such damages shall have •been paid or secured as aforesaid, the board shall divide said improvement into suitable sections, etc.
Sec. 12. When the . . ' . drainage district . . . .shall have been located and established as provided for in this act, . . . the board shall appoint three commissioners; . . . and they shall within twenty days after ■such appointment personally inspect and classify all the lands benefited by the location and construction of such drainage district, or the repairing or reopening of ■the same, ... in a graduated scale of benefits, to be numbered according to the benefit to be received by the proposed improvement; and they shall make an equitable apportionment of the costs, expenses, costs of construction, fees .and damages assessed for the construction of any such improvement, or the repairing or reopening of the same, and make report thereof in writing to the board of supervisors. .. . . This classification ivhen finally established shall remain as a basis for all future assessments connected with the •objects of said levee or drainage district, unless the board, for good, cause, shall authorize a revision thereof. . . . The auditor shall cause notice to be served ... of the time .and manner provided for the establishment of a . . . drainage district, which notice shall .state the amount of special assessments apportioned to such owner, upon each tract or lot, the day set for hearing the same before the board of supervisors and that all objections thereto must be made in writing and filed with the county auditor on or before noon of the day set for such hearing. When the day set for hearing shall have arrived, the board of supervisors shall proceed to hear and determine all-objections made and filed to said report and may increase, diminish, annul or affirm the apportionment made in said report or in any part thereof as may appear to .the board to be just and equitable; but in no case shall it be competent to show that the lands assessed
By section 20 it is provided that when any ditch or drain shall cross a public highway the cost of construction shall be paid by the township trustees from the road fund of such township, and whenever a bridge over such ditch or drain is necessary the board of supervisors shall build the same, and pay the cost thereof out of the county bridge fund. Further, if any highway is benefited by the construction of the ditch, the road district shall pay its proportion of the cost according to benefits; the amount to be determined by the board of supervisors.
Sec. 27. The special assessment for benefits made by the commissioners appointed for that purpose, as corrected and approved by the board of supervisors, shall be levied at one time by the board against the property so benefited, and when levied and certified shall be payable at the office of the county treasurer. If the owner of any parcel of land, lot or premises against which any such levy shall have been made and certified, which is embraced in any certificate provided for in this section, shall within thirty days from the date of such assessment promise and agree . . . that in consideration of having’ the right to pay his -assessment in installments, he will not make any objection of illegality or irregularity as to the assessment of benefits, or levy of such tax . . . but will pay said assessment with interest as shall be prescribed by resolution of the board, such tax so levied against the land, lot or premises of such owner shall be payable in ten equal installments, . . but where no such terms and agreement in writing shall be made . . . then the whole of said special assessment shall mature at one time . . .. and shall be collected at the next succeeding March semi-annual payment of ordinary taxes, etc.
Sec. 28. If the board of supervisors shall determine that the estimated cost of reclamation and improvement of such district of land is greater than should be levied in a single year upon the lands benefited ... it may fix the
Further necessary to our consideration are certain allegations of fact contained in the petition, and of which the answer makes admission. Therein it is said that the district instantly prpposed to be drained embraces portions of three townships in Buena Vista county, and included therein are lands of which plaintiff is owner; that he has filed a claim for damages which will accrue to him by reason of the construction of the proposed ditch across and over his lands; that the amount of his damage has been fixed and reported by appraisers appointed as by the act in question provided, which report has been approved by the defendant board. It is then said that there has been filed with and approved by the county auditor a bond, with sureties, running to the county, for its use and benefit, and for the use and benefit of the persons allowed damages in the establishment of the instant drainage district; it being recited as the condition of such bond that, “ in the event of .the payment of the damages awarded out of the funds created by the. levying
Having, now the substantive facts of the case before us, it may be stated that submission was had in the court below upon these several (grounds of contention, as presented by plaintiff: First, That the title of the act in question is defective, in that the subject-matter of the act is not clearly expressed therein, and that, as stated, it contains more than one subject. Second. That the provision in section 1 of said act- reading as follows, “ And the drainage of surface waters from agricultural lands shall be considered a public benefit, and conducive to the public health, convenience, utility and welfare,” must be taken as an attempt on the part of the Legislature to predetermine every fact question as to use, and by its simple declaration make that a public use which otherwise would confessedly be a private use. Further, that here is an attempt on the part of the Legislature to invade the right of the judiciary to determine whether, as matter of fact, the drainage of surface waters from agricultural lands is a public benefit or use. Third. That section 6 of said act provides for appeal from the action of the board in establishing a drainage district, but deprives appellant of the right of trial "by jury, and is therefore violative of section 9 of article 1 of the Constitution of the state', which provides for trial by jury, and thus oper
In respect of such matters of contention, the finding of the court below was against plaintiff as to each thereof, except the seventh; that as to such seventh ground the holding was in accord with the contention of plaintiff, and an in junctional decree was entered accordingly. As adversely affected, the respective parties appeal.
It must be confessed that there is no standard by which to determine in all cases what is a public use, of what can fairly be regarded as a public benefit, and therefore conducive to the public health, welfare, etc. The Constitution contains no words of definition, and it seems to remain for each act which is brought forward, aided, of course, by the disclosed purpose and object thereof, and by the conditions, stated or well known, upon which it is to operate, to furnish an answer to the test. In a former case this court, speaking through Dillon, J., said': “ If a public use be declared by the Legislature, the courts will hold the use public, unless it manifestly appears by the provisions of the act that they can have no tendency to advance and prosecute such public use.” Bankhead v. Brown, supra. And this from another court: “If the subject-matter of the legislation be of such a nature that there is any doubt of its character, or if by any possibility the legislation may be for the' welfare of the public, the will of the Legislature must prevail over the doubts of the court.” In re Madera I. Dist., 92 Cal. 296 (28 Pac. 272, 675, 14 L. R. A. 755, 27 Am. St. Rep. 106). And the use will be scrutinized less closely when the property is vested in the state or some public agency than when it is vested in a private corporation. United States v. Railway, 160 U. S. 668 (16 Sup. Ct. 427, 40 L. Ed. 576);
In holding a use to be public, it has never been deemed essential that the entire community, or any considerable portion of it, should directly enjoy or participate in the improvement or enterprise. This is made necessary because in the very nature of things the benefits to be derived from improvements local in character or peculiar in adaptation must be subject to the restrictions of locality, the necessities of individual and community life, etc. Talbot v. Hudson, 16 Gray, 425; Railway v. Railway, 16 Mont. 504 (41 Pac. 232, 31 L. R. A. 298, 50 Am. St. Rep. 508); Williams v. School Dist., 33 Vt. 271; Coster v. Tide Water Co., 18 N. J. Eq. 54; Zigler v. Menges, 121 Ind. 99 (22 N. E. 782, 16 Am. St. Rep. 357). So, also, a moment’s consideration will serve to make it clear that controlling effect cannot be given the fact, however apparent it may become, that the construction of a particular improvement will result incidentally in benefit to private rights and interests. If the contrary were true, it -is doubtful if there could be prosecuted any public work requiring an exercise of the power of eminent domain. Not a milldam, canal, or railway intended to be operated by private corporations for private gain could be built, however necessary to the public convenience or welfare, not even a schoolhouse site or ground for cemetery, park, market house, street, or highway could be acquirdd, although intended to remain under control of
It is the argument of counsel that here is an attempt to authoritatively declare for the drainage of all those agricultural lands in the state which can be said to be injuriously affected by surface water, and this as of a public use and benefit, without regard to locality, extent, or condition; further, that the effect thereof in practical experience will be to relieve boards of supervisors from all necessity for the exercise of independent judgment or discretion, and to authorize them to act in each case arising, arbitrarily and as a finality, simply and solely in virtue of the declaration of the act itself. Accordingly counsel insist that the act in effect authorizes a taking without regard to whether the use is in fact public or private. The argument goes too far. Not only that, but, as it seems to us, counsel fail to discriminate properly between the power of the Legislature to mark out a general field within which improvements of the character in question shall be considered as a public benefit, and the matters of question arising upon construction of a grant of power, or which are incident only to the execution of such power. It must be remembered that with the Legislature rests primarily the whole subject-matter of public improvements. The necessity for making and the time of making, together with the character and extent thereof, can alone be determined by it. Now, from what follows in subsequent sections of the instant act, it is made clear to our minds that by the term “ agricultural lands,” as used in the first section, it was meant to designate generally those various and well-known bodies of land lying within the state, which, owing to location and surface conditions, habitually
Manifestly the heart of the inquiry thus presented is the character of the use. That shown to be public in the sense that reasonably to .be expected therefrom is some utility, convenience, or benefit, capable of being enjoyed in common, the declaration of the act amounts to no more than to declare in favor of the building of railroads as a public use, or in favor of sewer systems in cities, or that the turnpiking and graveling of all country roads leading across swamp or marsh lands “ shall be considered a public benefit.” Now, it must be sufficient, in reason and in the light of experience, to say that the presence of marshes and swamps is a menace to the comfort and health of community life. And it is certain that such bodies of land, oftentimes thousands of acres in extent; interfere with and make difficult the establishment and repair of roads and other means of communication. Clearly enough, these are matters essential not only to the enjoyment of the'rights, but to the performance of the duties, incident to citizenship. Moreover, back of these and kindred matters lie the varied interests of the several counties and of the state in having the vast tracts of land now lying under enforced idleness brought in to .swell the agricultural resources of the state. And, however desirable such a result, it must be apparent that it can never be accomplished through individual effort; It is possible
The case of Hager v. Board, above cited, went on appeal to the Supreme Court of the United States, and was there affirmed. See 111 U. S. 701, 4 Sup. Ct. 663, 28 L. Ed. 569. Analogous to a taking for the purposes of drainage of agricultural lands is that for the purposes of irrigation of such lands, and such latter has been held to be a-public use for which the Legislature may even authorize a private person or corporation, to exercise the power of eminent domain. 15-Cyc., page 599, and cases cited; Lewis on Eminent Domain,, section 202, and cases cited in the note.
Now, passing the question as to the character of the use, the further questions possible to arise must have relation to the nature and extent of the grant of power, the conditions under which to be exercised, and the manner thereof. So, also, it follows, as a matter of course, that any steps taken under an act, proper in itself, may be called in-question as violative of the constitutional prohibition. In all cases of attack upon the act the offense alleged is laid at the door of the Legislature, and the acting agency is chargeable only as instrumentality. In all cases of offense
As it seems to us, a mere reading of the provision of the Constitution in question is sufficient to warrant the conclusion that, within the contemplation of the makers of that instrument, conditions might arise making it desirable to -accomplish a taking by the state of private property in ¡advance of the fact of actual payment. And apparently it was not conceived that any natural right inherent in private ■ownership forbade the authorization of such taking. It was ■conceived,, however, that justice to the owners of private
By the terms of the instant act, it will be observed that full provision is made for the levy of assessments and the collection thereof, and that the fund created shall be devoted solely to the payment of the damages and expenses of the improvement district. So, too, a provision for the issue of bonds to pay for a general public improvement had been held to. be a sufficient compliance with the requirement for security. German, etc., Society v. Ramish, 138 Cal. 120 (69 Pac. 89, 70 Pac. 1067); Robert v. Sadler, 104 N. Y. 229 (10 N. E. 428, 58 Am. Rep. 498); Bates v. Titusville, 3 Pittsb. R. 434. Now, it must be apparent that in any given case a requirement for adequate security will be satisfied if that which is proposed to be given makes it reasonably certain that compensation will in due time be made. The Constitution and the statute unite in requiring such security to be given, and to the county authorities is left the matter of detail. As a bond confessedly ample was demanded and given in the instant case, it is not necessary for us to hold sufficient the security arising in such cases by force or operation of law. The right of a damage claimant goes no farther than to insist that security shall be given. He cannot dictate the character thereof.
It is our conclusion upon the whole case that there is made to appear no violation of the Constitution in any of the respects contended for. And from this it follows that .the injunctional decree as entered by the court below should not have been granted; that, on the other hand, the petition of plaintiff should have been dismissed as a whole. The cause will be remanded for judgment in harmony with this opinion.
Affirmed on plaintiff’s appeal. Reversed on defendants’ appeal. (