148 N.W. 1 | N.D. | 1914
Lead Opinion
This is an appeal from an order vacating and setting •aside a temporary injunction restraining proceedings for the creation of a sewer under the provisions of chapter 23, Bev. Codes 1905, as amended by chapter 93 of the Laws of 1907 and chapter 124 of the Laws of 1911.
The first and main question which is to be decided in this case is whether a drainage or sewerage system may be created under §§ 1818 and 1821, Bev. Codes 1905, which system the petition alleges “is for the best interests of the city (of Mohall) and a benefit to the health, convenience, and welfare of the people of said city,” and which the record discloses is for the purpose of providing a drain which shall
This, we believe, is a correct statement of the main issue, for although it is contended that the drain is a general agricultural health drain, and passes through agricultural lands as well as city property, it is quite clear from the record that its source is in the city as well as its real field of utility, and that its extension into the agricultural lands is for the purpose of an outlet merely. Even, however, if it were partly agricultural and partly urban, we do not think that the issues would be changed, and we are of the opinion that “a petition signed by a sufficient number of the citizens of the municipality to satisfy the board of drain commissioners that there is a demand for the drain” would still have been necessary, and that such petition was not obtained in the case before us. Section 1818, Rev. Codes 1905, provides that “water courses, ditches and drains for the drainage of sloughs and other low lands may be established, constructed and maintained in the several counties of this state whenever the same shall be conducive to the public health, convenience or welfare under the provisions of this chapter. The word ‘drain’ when used in this chapter shall be deemed to include any natural watercourse opened, or proposed to be opened, and improved for the purpose of drainage and any artificial drains constructed for such purpose.”
Section 1821 provides that “a petition for the construction of a drain may be made in writing to the board of drain commissioners. If among the leading purposes of the proposed drain are benefits to the health, convenience or welfare of the people of any city or other municipality, the petition shall be signed by a sufficient number of the citizens of such municipality or municipalities, to satisfy the board of drain commissioners that there is a public demand for such drain. If the chief purpose of such drain is the drainage of agricultural, meadow, grazing or other lands, the petition shall be signed by at least
Section 2771, Eev. Codes 1905, provides among other things that “the city council shall have power to establish and maintain at any time a general system of sewerage for the city, in such manner and under such regulations as the city council shall deem expedient, and to alter or change the same from time to time as the council shall deem proper; provided; that no action shall be taken for the establishment of such system of sewerage except upon the affirmative vote of two-thirds of the members of the city council,” etc. Section 2772 provides that “any city shall have power to create sewer, paving or water-main districts within the limits of such city, which shall be consecutively numbered.” Section 2773 provides that “such sewer districts shall be of such size and form as the city council, after consultation with the city engineer, shall decide most practicable for the purpose of the drainage of such portion of such city as may be included in the respective districts as established by the city council.”
It is quite clear to us that §§ 1818 and 1821 were enacted for the drainage of sloughs and other lowlands, and under the general police power of the state, and that §§ 2771, 2772, and 2773 were enacted to meet the express problems of cities and the added problem of house sewage, which is not to be found in the country. It is well established that where general words follow a specific enumeration, that these general words must be construed to apply to a class similar to that enumerated. Lewis’s Sutherland, Stat. Constr. 2d ed. §§ 422 — 441. The “other lowlands,” therefore, which are spoken of in § 1818, must mean lands which, even though found within the limits of incorporated cities, are in the nature of sloughs and as such injurious-to the general health of the community. Sections 1818 and 1821, Eev. Codes 1905, in fact the whole of chapter '23, Eev. Codes 1905, relate merely to what may be termed water or surface-water drains, and have no relation whatever to a sewage and to a sewerage system, such as is generally maintained in cities and is evidently contemplated in the case at bar. There are cases where sloughs and swamps are found within the limits of incorporated cities, and § 1821 was enacted to cover such cases, but the act is limited by § 1818 to “the drainage of sloughs and other lowlands” and of sloughs and other lowlands alone.
Being for the benefit, health, convenience, and welfare of the city, the petition was, in any view of the case and of the statutes, required to be signed by a sufficient number of the citizens of such municipality to satisfy the board of drain commissioners that there was a public demand for the drain. See § 1821. In the case at bar the petition was signed by only ten, or at the most twenty, persons, while the number of property owners of the city amounted to two hundred and twenty-three persons. This was not a sufficient showing of a public demand. The most limited definition of the term “public” that we can find is in the case of State v. Luce, 9 Houst. (Del.) 396, 32 Atl. 1076, 1077; 6 Words & Phrases, 5771. In this case the court says: “The term 'public’ does not mean all the people, nor most of the people, nor very many of the people, of a place, but so many of them as contradistinguishes them from a few.” See 6 Words & Phrases, 5771. Even if we take the most limited construction, we think that no one would contend that ten or twenty is not a “few” as compared with two hundred and twenty-three.
There can be no question that the drain or sewer was intended to provide for the house sewage as well as for the surface or storm waters of the city. This is conclusively shown by the surveyor’s report, which, among the estimated items of cost, includes one septic tank, fifteen catch-basin, twelve manholes, one outfall abutment, and several thousand feet of drainpipe, and which throughout speaks of the system as a sewer, rather than a drainage, system.
It is also clear that whether primarily and principally a house sewer or not, its use is mainly confined to the limits of the city. It is true that it extends outside of the limits, but, to use the language of the engineer himself, “the benefits will be to the entire city of Hohall, North Dakota, and may include the southwest quarter and the south half of the southeast quarter of section 13, and the north half of the northwest quarter and the north half of the northeast quarter of section 24, twp. 161, range 84. The benefits will be particularly to the
But it is contended that the action was premature. It is claimed that it was begun before the hearing under § 1821 could be had, and before the board could determine whether or not a public demand existed for the drain. It is claimed that under the statute the drain board determines whether or not a public demand exists, and that such determination, in the absence of an appeal, should be final.
We do not think that this is the case. It appears to be quite clear, indeed, that before-any steps are taken whatsoever, the board of drain commissioners must be satisfied that there is the “public demand” which is mentioned in and which is made a prerequisite by '§ 1821. Before this matter has been determined, the board, under the statute, has no right to cause the survey to be made, nor to take any steps in the matter. This determination, and a petition on which the determination may be legally had, is, we believe, jurisdictional. It is true that the concluding portion of § 1821 provides that “all persons whose land may be affected by any such drain may appear before the board of drain commissioners and fully express their opinions upon the matter pertaining thereto.” We believe, however, that this hearing is contemplated after the filing of the proper petition, and the determining of the public demand, and the’making of the survey, and not before, and relates to the benefits and the necessity, and not to the preliminary and jurisdictional “public demand.” We are also cognizant of § 1822, which provides that “if upon such examination and survey, or upon the trial in the district court it shall appear that there was not sufficient cause for making such petition, or that the proposed drain would cost more than the amount of benefit to be derived therefrom, the board of drain commissioners shall deny the petition, and the petitioners shall be jointly and severally liable to such board for all costs and expenses
We are of the opinion that the trial court erred in dissolving the temporary injunction, and that all further proceedings under the invalid petition should be enjoined and the injunction reinstated. It is so ordered. The costs of the appeal will be borne by the defendant and respondent.
Rehearing
On Petition for Rehearing.
A petition for a rehearing has been filed in which the claim is made that the finding of the commissioners as to the fact of a public demand is final and conclusive, and cannot be attacked in the injunction proceedings. The contention of counsel in short is that in such a case if the commissioners choose to hold that two and two make six, or that ten out of two hundred and twenty-three is a number in itself sufficient to indicate a popular demand, or to make some other equally grotesque holding, the public and the courts must sit idly by and see an expensive election or proceeding carried on. Such, we believe, never has been and never will be the law. A holding such as that above on the part of a commission, though perhaps innocently made, is, in the eyes of the law, equivalent to fraud, and in such cases no court will hold that the exercise of discretion or of quasi judicial determination is binding.
We have carefully examined the cases’cited by counsel for petitioner. In none of them, however, are the facts similar to those in the case at bar. In the case of State ex rel. Little v. Langlie, 5 N. D. 594, 32 L.R.A. 723, 67 N. W. 958, for instance, the court merely held that “after a county-seat election has been ordered and held, and a sufficient vote is cast in favor of some one place to work a relocation of the county seat, the question whether the petition presented to the board of county commissioners praying that such an election be held was signed by a sufficient number of voters is not open to judicial investigation when the board has found that it was so signed.” It will be noticed that in this case the election had been held and the popular opinion and de
In the case of State ex rel. Plain v. Falley, 8 N. D. 90, 76 N. W. 996, all that was held was that the duties of the secretary of state, in certifying the names of the legislative nominees to the auditors of the proper counties, were ministerial, and not judicial. It is plain that this case has no application to the one at bar. In State ex rel. Laird v. Gang, 10 N. D. 331, 87 N. W. 5, we merely have a case where the board of county commissioners refused to call an election for the organization of a civil township on the ground that the petition was not signed by a sufficient number of legal voters. In it they passed upon a question of fact as to whether the signers were electors or not. There was no evidence of abuse of discretion, and no suggestion of such an abuse of quasi judicial judgment as to in law amount to fraud. So, too, no r.eal harm was done by, nor any infringement upon personal or property rights perpetrated, or money wasted, by the refusal to call the election. In the case of State ex rel. Cooper v. Blaisdell, 17 N. D. 575, 118 N. W. 225, is to be found a holding similar to that in State ex rel. Plain v. Falley, supra, and is merely that the secretary of state, in certifying the names of candidates for state offices to the auditors of the different counties, merely acts in a ministerial capacity. In the case of Greenfield School Dist. v. Hannaford Special School Dist. 20 N. D. 393, 127 N. W. 499, an attempt was made to attack the organization of a school district several years after its organization, on account of an alleged defect in the petition, after taxes had been levied for three years and a schoolhouse built, and bonds issued for $9,000. It was a case not only in which there was no showing of fraud or of that which was equivalent thereto, or of a gross abuse of discretion or of judgment, but one in which the doctrine of estoppel was and could be asserted. The case of School Dist. v. King, 20 N. D. 614, 127 N. W. 515, pre
The petition for a rehearing is denied.