211 P. 218 | Mont. | 1922
delivered the opinion of the court.
On August 4, 1921, a petition in due form was presented to the. district court of Big Horn county praying for the creation of the Valley Center drain district. An order was made
Our first drainage statute was enacted in 1905. (Chap. 106, Laws 1905.) It was amended in 1909 (Chap. 144, Laws 1909), and the amended Act was superseded by a new Act in 1915 (Chap. 147, Laws 1915). The Act of 1915 was superseded by Chapter 129, Laws of 1921, which is our present statute, comprised in sections 7265-7364, Revised Codes of 1921. In very brief outline the statute provides for the following procedure: A petition complying with the requirements of section 7265 must be filed in the district court of the county where the lands to be drained, or some of them, are situated. An order fixing the time for hearing must be made and notice given as prescribed b3r section 7268. If service of the notice is not complete at the time designated, an adjournment may be taken (7272), and further notice of the adjourned hearing given (7273). Any interested person may contest the application (7275), and upon the hearing the court must determine the sufficiency of the petition and all questions raised by the contest, and shall dismiss (7279) or approve the petition. If the petition is approved, the courl
Drainage statutes similar to ours and differing from it only in minor matters of procedure have beén enacted in many states, and, speaking generally, -have withstood every attack aimed at their constitutionality; at least, every objection urged against our Act has been considered and overruled in numerous instances. So often and so thoroughly has the subject been treated that it would be an idle ceremony for this court to restate the reasons which underlie the decided cases, and we content ourselves with the bare statement of the conclusion upon each objection and with a citation of some of the lead-, ing authorities which sustain it.
1. That lands may be brought into a drainage district and subjected to the imposition of special assessments to defray the cost of constructing and maintaining the drainage system upon the theory that the use to which the lands are subjected is a public use, is not open to further discussion in this state. (Billings Sugar Co. v. Fish, 40 Mont. 256, 20 Ann. Cas. 264, 26 L. R. A. (n. s.) 973, 106 Pac. 565.)
3. So long as ample provision is made for notice to every interested land owner and an opportunity for him to be heard before he may be affected adversely, it cannot be said that the statute operates to deprive him of his property without due process of law. (Mound City Land & Stock Co. v. Miller, 170 Mo. 240, 94 Am. St. Rep. 727, 60 L. R. A. 190, 70 S. W. 721; 9 R. C. L. 643.)
4. The fact that this statute authorizes the commissioners to go upon a land owner’s property for the purpose of necessary investigation to determine the special benefits received or damages suffered by it in advance of an award does not render it obnoxious to the provision of the Constitution Which declares that private property shall not be taken or damaged for public use without just compensation having been first made to or paid into court for the owner. (St. Louis M. & M. Co. v. Montana Co., 9 Mont. 288, 23 Pac. 510; affirmed, 152 U. S. 160, 38 L. Ed. 398, 14 Sup. Ct. Rep. 506 [see, also, Rose’s U. S. Notes].)
5. Objection is made: (a) That the statute denies to one originally in the district the right of jury trial upon the question of benefits received or damages suffered by his land; and (b) that it discriminates in favor of the land owner whose property is brought into the district after it is organized by extending to him the right to have the question of benefits or damages determined by a jury.
(a) The proceeding by which a drain district is created and managed is purely statutory. It is not an ordinary civil action, but a special proceeding (Matter of Ryers, 72 N. Y. 1, 28 Am. Rep. 88), in which the right to a jury trial did not exist at the time our Constitution was adopted (Portneuf Irr. Co. v. Budge, 16 Idaho, 116, 18 Ann. Cas. 674, 100 Pac. 1046). Hence the right of trial by jury as guaranteed by the Constitution is not impaired. (Cunningham v.
(b) The statute does not deny to the land owners whose properties are included in the district originally the equal protection of the law. The rule that general laws shall operate uniformly does not prohibit a reasonable classification of subjects. The situation of the land owner whose property is originally in the district in so far different from that of the land owner whose property is brought in after the district is created as to furnish the basis for a reasonable classification; hence the statute is not open to this objection. (In re Organization of Bench Canal Drainage Dist., 24 Wyo. 143, 156 Pac. 610.)
6. The statute does not attempt to delegate legislative power to the judiciary, and hence does not impinge upon the provisions of section 1, Article IV, of our Constitution. (Barnes v. Minor, 80 Neb. 189, 144 N. W. 146; State ex rel. Matson v. Superior Court, 42 Wash. 491, 85 Pac. 264.)
7. Appellant contends that the provision of section 7280, above, that “ownership of land within the district shall not disqualify a person from acting as a commissioner,” is violative of that fundamental maxim of our law that no man shall be the judge of his own cause, and support for this contention is found in Commissioners of Union District No. 1 v. Smith, 233 Ill. 417, 84 N. E. 376, but the decision is contrary to the overwhelming weight of authority as disclosed by the notes to the same case as reported in 16 L. R. A. (n. s.) 292.
The reason for our conclusion that the statute is not open to this objection is made manifest by the statute itself, which
8. The contention that the interested land owners should have the right to select the commissioners is without merit. In the absence of any constitutional restriction the legislature may designate the officers who shall construct the drains and supervise the work of the district and may provide the method for their selection. Drain commissioners are not constitutional officers, but mere agents of the state. (State ex rel. Brooke v. Nyssa-Arcadia Drainage Dist., 80 Or. 524, 157 Pac. 804; 19 C. J. 625.)
9. Finally, it is contended that the statute authorizes the imposition of taxes not uniform upon the same class of subjects and therein violates section 11, Article XII, of our state Constitution. Special assessments for the construction and maintenance of drainage works, though imposed and collected in virtue of the taxing power, are not taxes within the meaning, of that term as employed in Article XII, above (Billings Sugar Co. v. Fish, above); hence the requirement that taxes must be uniform has no application here (Jones v. Drainage Dist., 102 Miss. 796, 59 South. 921; Drainage Dist. v. Turney, 235 Mo. 80, 138 S. W. 12; 19 C. J. 714). We are of the opinion that our statute is not open to any of the objections urged against it.
In addition to the foregoing, counsel for appellant contend that the district was not created properly in that notice of the postponed meeting of September 19 was not served as required by law, but there are not any defects
Again, it is contended that the court did not pass upon all of the objections raised by the remonstrance, but again the record contradicts the contention. The court found “that the remonstrance filed by the said J. W. Johnston is without merit,” but even that finding was unnecessary. The order confirming the report as made operates ipso facto to overrule every objection urged in the remonstrance.
The order is affirmed.
Affirmed.
