15 S.W.2d 531 | Ky. Ct. App. | 1928
Affirming.
J.H. West and 11 associates filed a petition in the Muhlenberg county court to establish a drainage district in the Long Creek valley. The procedure prescribed by statute (section 2380b1 et seq., Kentucky Statutes; Act March 26, 1918) was carefully pursued. Mrs. R.A. Wells, one of the landowners affected, filed exceptions, which were heard and overruled, and the district was established. An appeal to the circuit court was taken, and another hearing had, which resulted in a like judgment. Mrs. Wells now appeals to this court, insisting (1) that so much of section 2380b9 of the Kentucky Statutes as cuts down the defenses of landowners objecting to the establishment of a drainage district to a mere "denial of the facts stated in the petition and in the report of the viewers" violates the state and federal Constitutions: (2) that no district should be established which would impose upon landowners a confiscatory assessment, or excessive burden of taxation; (3) that the court erred in denying appellant's motion to dismiss the petition on the face of the papers; and (4) that error was committed by the trial court in excluding or disregarding evidence offered by the appellant. We will consider the contentions in the order stated.
1. The validity of drainage laws of the character here involved is no longer debatable. Carter v. Griffith,
Reliance is rested upon the case of Maguiar v. Henry,
2. The next contention is that the proposed improvement would devolve upon the owners of land in the district an excessive burden of taxation, and result in practical confiscation of their property. Obviously the *741
question thus broadly stated does not arise in the preliminary proceeding to establish the district. No tax is levied until that proceeding is finished. The amount or apportionment of it could not be determined until the engineering problems had been solved, and definite plans and specifications formulated. Further steps must necessarily follow. A definite and practical plan must be devised to meet the conditions confronting the district. The attack now made is leveled against a situation purely hypothetical. The actual one may be widely different in details, difficulties, and extent. It is impossible to say now with any degree of assurance what will be done after the district is created and enters upon the performance of its functions. When the next step under the statute is taken, the landowners affected are provided with opportunities to be heard on all questions and with the final right of appeal to this court. Indeed, when the improvement is nearer realization, objections to it may vanish. The case of Board of Drainage Commissioners v. Illinois Central Railroad Co.,
"No errors of law are relied on for reversal. The only question made on the appeal is that the judgment of the court is not warranted by all the evidence."
The action of the lower court in that case was upheld on the ground that it constituted a finding of fact, which was not against the weight of the evidence. We have examined the record in that case, and find that no question of procedure was raised, suggested, or decided. The ultimate question on which the case turned was recognized by both parties as properly presented, and was decided by the court on the merits.
Appellees here quite properly followed the steps outlined by the statutes as construed by this court in Handley v. Graham,
But it is urged that exceptions allowed the landowner after the first proceeding is concluded and the second step is being taken are limited to a comparison of the reasonableness of the proposed assessment against his land with those against the other lands. The contention is wholly without basis and the landowner is not subject to any such restriction. After the report of the appraisers has been filed in the second proceeding, and the parties affected thereby properly notified, the statute provides:
"All persons who are shown by the report of the board of appraisers to own or control land or other property within or without said drainage, levee or reclamation district, which as shown by said report, will be assessed, benefited, injured or damaged, including railroads, municipal corporations, and public officials controlling streets and public highways, shall have until and including the first day of the term of court at which said report is set for a hearing, to file exceptions to such report, but shall not thereafter be allowed to do so. All exceptions to said report shall be heard and tried by the court, on the day the proceeding is set for hearing pursuant to the preceding notice, unless further time be required to complete such trial or hearing. The trial of the exceptions to said report shall be by the court, except in cases where land is to be condemned and taken for right of way or other purposes, same shall be by a jury as provided by general laws in the condemnation of land for railroad purposes." Section 2380b17, Ky. Stats.
It will be seen that no restriction whatever is placed upon the exceptions which the landowners are authorized to file. Section 2380b18 immediately follows, and provides for a jury trial for the ascertainment of damages for lands taken, and the court is expressly empowered to hear and determine "all exceptions to the assessment of benefits and classification of lands, and to determine the correctness of the classification and assessment of benefits to each tract of land or other property involved." The statute further directs the court to approve and confirm the report of the board of appraisers as to the classification *743 and assessment of benefits if it appears to the court, after having heard and determined all exceptions, that the estimated cost of construction of the proposed improvement contemplated in the plan for reclamation is less than the benefits properly assessed against the land and other property in said district. At this point in the progress of the case any question of spoliation, confiscation, inadequate benefits, excessive assessment, or other legal or constitutional objection, which may be presented by a proper exception, must be heard and decided. The decision thereon is subject to review by this court. The only limitation on the questions reviewable is that it must first be presented to the circuit court by appropriate exceptions to the report of the board of appraisers. Section 2380b18, Ky. Stats.
The questions decided in the case of Board of Drainage Commissioners v. Illinois Central R. Co.,
These constitutional limitations rest upon the courts and the Legislature as well, and the statutes must be construed and enforced with deference to the supreme law. When the total value of the property assessed, after the improvement is made, is less or no more than the cost of the improvement, a case of spoliation is made out, and *744 the duty of the court is plain. In other cases, where the question of benefits and value are in doubt, the court is not absolved from its duty, but must determine from the evidence the extent to which assessment may be allowed. Deference is due the judgment of the legislative bodies and the administrative boards, but the assessments must be limited to correspond with the benefits received. The questions of fact as to value and benefits must be determined from the evidence, but the constitutional limitations must be respected.
A provision now appears in section 18 of the act to the effect that, "if the owners of seventy-five per cent. of the land embraced in the said district, or any part thereof which is practically separated from other portions of the district, file a petition in the court in which the proceeding is pending, stating that they desire to abandon the proposed improvement, the court shall dismiss the proceeding at the cost of the landowners." Act March 26, 1918, c. 64, p. 192, sec. 18, as amended by Act Feb. 3, 1922, c. 2, p. 23. Cf. Edrington v. Payne,
3. The motion to dismiss the action on the face of the papers was predicated upon affirmative matter, contained in the exceptions of appellant, which was not met by the petitioners. An analogy is sought to be deduced from the procedural rule by which a party is entitled to judgment if an undenied affirmative pleading authorizes it. The analogy is not apt or applicable. This was a statutory proceeding, and the only exceptions allowed were confined by the statute itself "to a denial of facts alleged in the petition, or facts stated in the report of the viewers." Section 2380b9, Kentucky Statutes. It was, *745
therefore, unnecessary for the petitioners to respond to exceptions that went beyond the authority of the statute, and the court was compelled to disregard defenses sought to be interposed outside the limits of the law. In so far as a pleading is unauthorized, the facts presented by it do not afford a proper predicate for judgment and may be disregarded, although not denied. Spiess' Adm'x v. Bartley,
4. It is argued, however, that the matter affirmatively pleaded on behalf of the appellant was provable under the specific exceptions authorized by the statute to be filed, and, even though inadmissible as affirmative matter in exceptions, it was nevertheless competent as evidence, to reject which was reversible error. The test by which to determine the propriety of excluding evidence is its relevancy to issues involved in the case. The issues to be tried in proceedings of this character and at the stage reached are limited, and "made to depend upon whether the proposed improvement (1) will result in public benefit or utility; (2) will promote the public health, convenience, or welfare; or (3) will benefit the lands to be included in the district." Handley v. Graham,
It is tacitly, if not expressly, conceded that the proceedings taken in this case conformed to the literal requirements of the statute. Such being the fact, and the weight of the evidence supporting the finding of the court, it follows that no error was committed in establishing the drainage district requested by the petitioners.
The questions sought to be raised in this case and not decided are not precluded by the present judgment, but may be presented appropriately in any subsequent proceedings that may be taken.
The judgment is affirmed. *746