109 Minn. 88 | Minn. | 1909
In 1898, in proceedings had for that purpose, the board of county commissioners of Renville county duly laid out and constructed a drainage ditch, known and described in the record as “County Ditch No. 2.” Lands now owned by appellant, but then owned by one Gronnerud, being benefited by the ditch, were, with other lands adjoining thereto, duly assessed for the benefits so accruing. Thereafter, in July, 1905, one Brunner, an owner of land affected by the ditch, appeared before the board of county commissioners and represented that the ditch had become obstructed by the accumulation of grass and rubbish, and petitioned the board to take action for the removal of the same, to the end that the ditch might serve the purpose intended by its construction. Whereupon the board, by proper resolution, appointed John D. Morgan as engineer, and directed him to make due investigation, and report the condition of the ditch and the cost and expense of removing the obstructions therefrom. In his report, subsequently made, he recommended the removal of all obstructions, and also the deepening of the ditch one foot its entire length, estimating the cost and expense thereof at $3,582. The re-;
The facts stated were not controverted on the trial below, and it was stipulated by the parties that the only question in the case was “as to the legality of the assessment for repair, widening and deepening of the ditch, and as to the constitutionality of section 26,” c. 230, Laws 1905. The trial court found the facts substantially as stated, and, further, that “the assessments so made by said board were to pay the cost and reimburse the county for repairing said ditch by removing obstructions therefrom, and deepening' the same one foot a part of its length.” As conclusions of law the court held the statute constitutional, the proceedings of the board valid, and judgment was ordered against appellant for the amount of the assessments against the land owned by him. Whereupon appellant moved for a new trial and appealed from an order denying it.
The objection to the validity of the statute is that it makes no provision for notice to interested parties, or otherwise affords them an opportunity to be heard upon questions affecting the propriety and necessity of the improvement authorized to be made under the statute, and is therefore unconstitutional and void as depriving those against whom assessments are made of their property without due process of law. The statute, a part of the drainage act of 1905, provides that after the construction of any ditch the board of county commissioners of the proper county shall keep the same in repair and free from obstructions, and authorizes the widening or deepening thereof, if in the judgment of the board necessary to answer the purpose of its construction. It further provides that the cost and expense of such improvements shall be paid from the general revenue fund of the county,
We are of opinion that the statute, in so far as it attempts to clothe the board of commissioners with ex parte power and authority to -enlarge, by widening or deepening, a ditch theretofore constructed, is unconstitutional and void by reason of its failure to provide some kind of notice to those who are required by the statute to defray the ■expense of the improvement, or afford them an opportunity at some stage of the proceedings to be heard upon all questions necessary to be •determined in order to justify the proposed work.
It is clear that the original proceeding could not be authorized by the legislature without some provision for notice or opportunity to be heard upon these questions (28 Cyc. 979; Hamilton, Special Assessments, § 141) ; and it is equally clear that the enlargement of .a ditch already constructed, either by widening or deepening it, would, for all practical purposes, constitute a new ditch, depending, perhaps, upon the extent of the enlargement. There is a distinction between repairing a ditch, by removing obstructions therefrom, and widening or deepening it. Harbaugh v. Martin, 30 Mich. 234; Lanning v. Palmer, 117 Mich. 529, 76 N. W. 2; Taylor v. Crawford, 72 Oh. St. 560, 74 N. E. 1065, 69 T. R. A. 805, and cases cited in note. In some of the states it has been held that, even in the case of ordinary repairs, notice and opportunity to the landowner to be heard at some point in the proceedings is essential to the validity of a statute authorizing the same (Campbell v. Dwiggins, 83 Ind. 473), though the authorities on the point are not in harmony. But we find no conflict upon the proposition that authority to enlarge a ditch, either by widening its banks or deepening its channel, must be upon notice of some kind. Fries v. Brier, 111 Ind. 65, 11 N. E. 958; Weaver v. Templin, 113 Ind. 298, 14 N. E. 600; Deuyer v. Shonert, 1 Oh. C. C. 73; City of Owensburg v. Brocking (Ky.) 87 S. W. 1086; Romack v. Hobbes (Ind.). 32 N. E. 307.
But it is not so limited. On the contrary, the statute not only authorizes repairs, but grants to the board the further power to enlarge the ditch by widening its banks or deepening its channel. And, respecting this additional power, it contains no limitation respecting the extent to which the board may go. Under its authority an existing ditch may be widened or deepened one, two, or more feet, depending upon the arbitrary action of the county board, guided in the main, perhaps, by recommendations of their engineer. Clearly this should not be authorized without notice to those who must in the end defray the expense.
The suggestion on the oral argument that property owners are afforded full and adequate opportunity to be heard by presenting their defenses and objections in this proceeding is not well taken. This proceeding is for the purpose of obtaining judgment against benefited property for the amount of assessments made against it, and is controlled by the general statutes on the subject of tax judgment proceedings. All defenses there authorized to be interposed, so far as here pertinent, are contingent upon an affirmative showing by the property owner that the tax or assessment was unfairly or unequally
It remains, then, to consider the claim of counsel for respondent that this particular proceeding involved ordinary repairs only. This ■does not require extended discussion; for, as we read the record, a ■deepening of the ditch was clearly contemplated, in addition to the removal of obstructions therefrom. The engineer recommended, not ■only clearing the ditch of all obstructions, but deepening the same one foot for its entire length. The county board in substance adopted this report and ordered the improvement accordingly, not, however, to the ■extent of deepening the ditch its entire length, limiting the deepening process to a portion of the ditch only. The trial court found that the assessment sought to be enforced was to reimburse the county for repairing the ditch “by removing obstructions therefrom, and deepening the same one foot a part of its length.” This, within the.authorities heretofore cited, went beyond repairs, within the meaning of the law, and resulted, in part, at least, in a new ditch, and the same reason for requiring notice to the interested landowners and an opportunity to be heard applies.
Order reversed and new trial granted.