State ex rel. Campbell v. Gering Irrigation DistrictState ex rel. Campbell v. Gering Irrigation District
By this action the relators, eight in number, who are landowners within the boundaries of the Gering Irrigation District, seek a writ of mandamus for the purpose of compelling the board of directors to make provisions for the repair аnd enlargement of lateral No. 2 in said district,
This ruling of the court is now assigned as error. The main question prеsented by the record is whether the expense of enlarging and maintaining the lateral and the supervision of the distribution of the water among the users should be borne by the district at large or by the users of water served by the lateral. The ruling of the court was based upon the provision of chapter 97, Laws 1923, and especially upon the proviso which was added to section 2865, Comp. St. 1922.
The relators contend that the provisions of the act of 1923, as set forth in the proviso, in so far as it seems to authorize the board of directors of the district to require the expense of constructing and maintaining the laterals and supervising the distribution of the water to be borne by the water-users, is unconstitutional and void.
- Without setting forth the averments of the alternative writ, we think its allegation sufficient to entitle the relators to the relief prayed, if under the law it is the duty of the district to construct and maintain the lateral аnd supervise the distribution of the water.
At this point a brief reference to the troubles and former litigation between the users of water to lateral No. 2 and the district may serve to throw some light on the question now being considered. It appears that since the organization of the district the board of directors have adhered to the policy of requiring the landowners served by a lateral to construct and maintain the same, as well as to suрervise the distribution of water through the same. Lateral No. 2
It also appears that in May, 1922, under circumstances almost identical with those presented in the case before us, certain relators who were water-users from lateral No. 2 commenced an action to require the board of directors of the district to construct and maintain said lateral and to supervise the distribution of the water. In that case the board took the position that it was not its duty tо perform said acts. The case was finally brought to this court, the opinion being reported in State v. Gering Irrigation District,
“ An irrigation district is a public corpоration. Its funds are derived from the taxation of all land within the district. The very purpose of its organization is to furnish water upon fair and equitable terms and conditions to each and every landowner within the district. Comp. St. 1922, secs. 2857-2953. This, in the сase of some small*332 districts, may perhaps be done by supplying water direct to the landowners from the banks of one canal. But this can seldom be done in districts embracing many acres. In such cases there must be laterals to carry the water to the ultimate user. Such laterals are necessary portions of the irrigation works and should be provided, maintained, and supervised by the district, so that a just apportionment of the water may be supplied to each landowner therein. It would be manifestly unjust and unfair to assess a landowner whose property is situated several miles from the main canal without providing him reasonable facilities to obtain the water fоr the furnishing of which he is taxed. To sustain the position of the respondents would be to hold that the owners of land adjacent to the main canal are entitled to receive water without further initial outlay, while at the same time other landowners, who are also taxed according to valuation, shall be compelled to build and maintain expensive works and furnish supervision for such works in order to obtain that which is supplied without such expense to others who have no greater right. This would be clearly inequitable, unfair and unjust, and such construction of the statute ought not to be adopted. Of course, landowners may provide their own laterals if they desire, but where there is mоre than one water-user taking water from the same lateral, and any dispute arises between the users, the district board should regulate the supply, as in the case of other users of water.”
Following this decision the legislature of 1923 amended section 2865, Comp. St. 1922, by enacting chapter 97, Laws 1923. The amendment reenacted the essential features of the original section, but added new elements, which are set out in a proviso, as follows :
“Providеd, however, that in districts in which the users of water have heretofore ■ maintained the laterals through which they have used water i'cr the irrigation of their lands, it shall be lawful to require all of the landowners obtaining water through any latеral to perform their pro rata share*333 of the work and their pro rata share of the expense of maintaining and keeping such lateral in repair.”
The proviso further recites that, in the event the users of water are unable to agree upon proper mеasuring devices to be placed in such laterals for the work or repairs that may be necessary to put said laterals in proper condition to deliver to each landowner the amount he is entitled to reсeive., upon notice and a hearing, the board of directors shall proceed to put in suitable measuring devices and make the necessary repairs on such lateral to deliver water to all landowners rеceiving water therefrom, and shall apportion the expense thereof ratably to all of the land receiving water from such laterals, and the same shall be assessed against such land as a special tax аnd collected as other irrigation district taxes.
It is apparent that the amendment, as set forth in the proviso above mentioned, nullifies the effect of our former decision. By the amendment the board of directors аre authorized to charge the expense of the construction and maintenance of the laterals to the users of water served by such laterals, while our decision requires that such expense should be borne by thе district at large.
The relators seem to concede that, if the amendment is valid, the users of water served by lateral No. 2 must bear the expense of the construction and maintenance of the lateral. It is the cоntention of the relators that the amendment, as set out-in the proviso, is unconstitutional and void," because it is local and special in its application.
Section 18, art. Ill of the Constitution, as it appears in Comp. St. 1922, рrovides: “The legislature shall not pass local or special laws * * * where a general law can be made applicable.” It will be noted that the objectionable features of the amendment are contained in a proviso commencing with the words: “Provided, however, that in districts in which the users of water have heretofore maintained the laterals,” etc. By the use of the word “heretofore” in the provisio, it seems cleаr that it was the intention of the legislature to limit the application of the
It is true that a number of legislative acts, which were applicable only to a present situation, have been held not to be inimical to the provisions of the Constitution now being considered, but in such casеs the acts were so framed that it was possible for others to come within the classification.
' In State v. Scott,
In State v. Kelso,
It is true that the two cases above referred to infringed upon a different subdivision ‘ of section 18, art. Ill of the Constitution, than the one in the case now before us, but we see no difference in the principle involved.
It seems clear that such portion of the amendment of 1923 which authorizes the board of directors to charge the expense of constructing and maintaining laterals and supervising the distribution of water must, in view of the limited application of thе law, be held to be special legislation inhibited by section 18, art. Ill of the Constitution.
Reversed.