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county, as aforesaid. The board then took | islature of 1907–08, and the amendments a recess until November 28, 1910.

thereto, commonly known as the drainage Approved this 28th day of November, 1910. act. There is some contention to

Geo. F. Clark, Chairman. whether the act of the commissioners was Attest: J. E. Rea, County Clerk. performed as commissioners of the drainage

district, or whether they were acting in the He further alleges: “And by such action capacity of county commissioners. The law the said board of county commissioners is anything but clear as to when they shall elected that Lincoln county would construct act as county commissioners, or wher. they said bridges and offset the damages on ac- shall act as ex officio drainage commissioncount thereof, to wit, the sum of $81,930; ers. The law begins by providing that the

.. that the construction of said bridges proceedings shall be initiated by filing a is not a legal charge against said drainage petition with the county commissioners, district."

and § 3045, Comp. Laws 1909, in part proHe further sets out resolution of the vides: "The term 'commissioners' as used board of county commissioners of July 3, in this act shall mean the board of county 1911, wherein the board recognizes the commissioners.” There is no provision anyvalidity of the assessment of benefits made where designating said commissioners to Lincoln county and the provision made “drainage commissioners," or "ex officio by said resolution toward the payment of drainage commissioners.” From an examisaid assessment, and the further resolution nation of the record, it seems that all the of said board, providing for the issuance proceedings had before the commissioners of negotiable special assessment warrants were before them as county commissioners, with coupons attached in the aggregate and that all resolutions passed and orders sum of $134,000, to provide the ready funds made were in their capacity as county comto pay said sum. He alleges that they re- missioners. In our opinion, it is a matter fuse to issue said warrants or to build said of minor importance whether or not they bridges. The county commissioners filed a were acting in the capacity of county comdemurrer to the petition and alternative missioners or drainage commissioners. It writ of mandamus. Plaintiffs filed a de- is unnecessary to determine in what capacmurrer to the answer and return of the ity they performed their duties, except to drainage commissioner. Upon a hearing of the extent and for the purpose of determinthe issues thus raised, the court sustained ing the validity of their acts. At common each of said demurrers; and a peremptory law, the obligation to maintain and repair writ of mandamus was issued against the public highways and bridges rested upon county commissioners, as ex officio commis- the county. 1 Bl. Com. 357. It cannot be sioners of Deep Fork drainage district No. doubted that primarily the duty of build1, and plaintiff in error, as drainage com- ing bridges of the character and dimensions missioner, requiring them to meet and pro- of the bridges required to be built across ceed to let the contract for the construction said drainage ditch in question upon the of said forty-eight bridges. From this judg- public highways is upon the county commisment plaintiff in error prosecutes error to sioners under $$ 7581 and 7609, Rev. Laws this court.

1910, which sections read: There is no question raised on this ap- “7581. All bridges, culverts and roads peal relative to the necessity of the con- shall be at least 14 feet wide, and all struction of said bridges, but all parties bridges and culverts not more than 20 feet seem to agree that they are indispensabile. in length shall be under the control and The sole question for determination is as supervision of the board of highway comto whether said bridges should be con- missioners of such township and the road structed by the county commissioners at the supervisor in whose district such bridge or expense of and in behalf of the county, or culvert is situated, and all bridges more by the drainage commissioners and at the than 20 feet long shall be under the control expense of said district. By stipulation and supervision of the board of county comfiled in this court, the case-made has been missioners. Said bridges to be built by the amended by attaching a true transcript of county commissioners at such places as may all the proceedings had before the county be necessary for the public convenience. In commissioners relative to said drainage dis- addition to the compensation already altrict. We presume this is done in order lowed by law, the county commissioners that the court may determine the question shall receive $3 for each day actually and on the merits, and finally fix the liability necessarily spent in overseeing bridge work: of building these bridges. A

de- Provided, that no commissioners shall retermination of the question presented receive pay for such work for more than sixty quires the consideration and construction days in any one year.” of several provisions of the act of the leg- "7609. The board of county commissionas shall provide all roads improved, under public bridges become a part of the public the provisions of this article, with suitable highways, and the public highways are in bridges of a permanent and substantial the exclusive charge and control of the character and shall keep and maintain same county officials and must be erected by genin repairs."

proper

eral tax; and this section puts the burden It is the contention of plaintiff in error of constructing such bridges upon the counthat under § 3069, Comp. Laws 1909, it ty. is likewise the duty of the county commis- We are also of the opinion that the sioners to construct the bridges in question. bridges referred to in this section are a This section provides: “The commissioners different class from those referred to in may, when the same is necessary for pub- $ 3050, Comp. Laws 1909. Taking the conlic health, convenience and welfare, cause text of said § 3050, it is reasonably clear to be constructed or enlarged, any bridge that the bridges referred to there are mainor culvert made necessary by the crossing ly for the use and benefit of the owners of of any drain constructed under the provi- the lands situated in said district. The sions of this act: Provided, however, that language used (referring to the viewers) when such bridge or culvert shall belong is: “They shall specify the manner and to any corporation other than the county, time in which the improvements shall be the county clerk shall give such corporation made and completed, the number of flood notice by delivering to its agent the order gates, waterways, farm crossings, bridges, of the commissioners declaring the neces- and the dimensions thereof, and note the sity for constructing or enlarging such county and township lines and railroad bridge or culvert, and a failure to construct crossings." or enlarge such bridge or culvert within In other words, this language, properly the time specified, shall be deemed as a construed, would mean the number of flood refusal to do said work, and thereon the gates, waterways, farm crossings, and “farm commissioners shall proceed to let the work bridges” and dimensions thereof. This secof constructing or enlarging the same and tion clearly contemplates that these are imassess the corporation with the cost there. provements to be constructed at the expense of, and the county clerk shall place such of the drainage district, and to become a assessment on the tax book against said part of the drainage system, and of special corporation . . . to be collected as taxes. benefit to each landowner within the disBefore the commissioners shall let such trict, and are not public utilities. The work they shall give to the agent of the drainage law does not provide anywhere said corporation at least twenty days' ac- the character, material, size in length or tual notice of the time and place of letting width, nor the location of such bridges. such work."

The language of the court in the case of Construing $ 3069, supra, as a whole and Rigney v. Fischer, 113 Ind. 313, 15 N. E. in connection with $$ 7581 and 7609, Rev. 594, is applicable here: "Without further Laws 1910, supra, relating to the same sub-extending this opinion, our conclusion is ject, we are clearly of the opinion that the that appellee, as the drainage commissioncommissioners referred to therein are the er, has no authority to determine the necescounty commissioners, and that the bridges sity for the bridge, nor the sort of bridge, provided for are to be constructed on be- if one is necessary, that should be built, half of and at the expense of the county, and has no fund that he can use in the except where benefits are assessed to a erection of the bridge; in short, that he has county, it may offset the amount due for no authority to erect the bridge. Those benefits by the cost of erecting necessary questions must now be settled, and the bridges. This section clearly contemplates bridge be built, if built at all, by some perthat the bridges, other than are owned by son or body authorized to do so by the any private corporation, shall belong to the statutes." county. Also, this section provides only for It is also his contention that the viewers the construction or repair of such bridges, and appraisers assessed benefits to be dewhen it is made necessary for the public rived from the construction of this ditch health, convenience, and welfare. There is against Lincoln county in the sum of $134,no reference made in this section to the re- 550, and damages by reason of the construcpair or construction of bridges when neces- tion of these bridges in the sum of $81,930, sary for the drainage district or for the and that said county, through its officials, convenience of the people in said district, elected to build these bridges and offset the but only when necessary for the general amount of expense against the amount of public health, convenience, and welfare. In benefits assessed, and that said county is other words, this section contemplates that now liable under the law by reason of such said bridges are to be built for the use and proceedings and judgment of the commisbenefit of the general public, in that all' sioners. The jurisdiction and authority conferred upon the county commissioners | Palmer, 74 N. Y. 183, 189, 30 Am. Rep. in the organization and proceedings in the 289; Remsen v. Wheeler, 105 N. Y. 573, construction of a drainage ditch are very 12 N. E. 564.” broad and sweeping. There can be no ques- Said commissioners are given exclusive tion about the power to assess benefits to jurisdiction to hear and determine all conthe county wherein the viewers and ap- tests and objections to the creation of such praisers find that the county will be bene- district, and all matters pertaining to same, fited by reason of the construction of such and have exclusive jurisdiction in all subditch and the draining of public highways. sequent proceedings, except such as is conPart of $ 3046, Comp. Laws 1909, provides: ferred upon the drainage commissioner “The benefits to the county as a body politic after the completion of the ditch. They are and which might be assessed under this act given power to adjourn the hearing on any against the county where improvements are matter from day to day, and all judgments formed, in districts formed wholly within rendered by said commissioners in relation any county, shall be prorated between the thereto are final, except when appealed counties in their proportion to the benefits from to the district court. derived to the counties respectively and shall There is no claim that the county failed be paid from the public funds of each such to receive sufficient notice of all proceedcounty."

ings had, or that there are any defects by And again, § 3056, id., provides: “When reason thereof. Under the broad powers any drain established under the provisions vested in the commissioners, we are of the of this act, drains, either in whole or in opinion that their acts in approving the part, or benefits any public or corporate assessment of benefits to the county and in road or railroad, the viewers shall appor assessing damages in favor of the county tion to the county or state road, or if a cor to the amount of the cost of the bridges, porate road or railroad, to the person or and the resolution on the 19th day of Nocompany owning, operating or controlling vember, 1910, supra, are valid and binding the same, the same proportion of the cost upon the county. The resolution, fairly of location and construction of the improve construed, was an election on the part of ment in proportion to the benefits received the county to offset the benefits assessed to as to private individuals.” (Italics ours.) the amount of the cost price of the bridges.

It will be seen that the commissioners in There was no appeal taken from the action their supervisory control over the acts of of the commissioners in any of these matthe viewers and appraisers had the same i ters, and such action must be held to be jurisdiction and authority to assess and ap- conclusive on the county. If the judgments prove benefits to the county as to an indi of the commissioners are not conclusive on vidual; and when the assessment was made the county, then they are not conclusive on and confirmed, if no appeal was taken with any of the other parties, in that the comin twenty days, the order confirming such missioners had the same jurisdiction over assessment became final, equivalent to a the county as it had over the other parties judgment of such board, and would not be before them, and was specifically authorsubject to a collateral attack. Certain ized to make the assessments of benefits and powers conferred upon said commissioners damages to the same extent as if all were are quasi judicial. The determination of individuals. The county was authorized to the viewers, when affirmed by the county elect, the same as an individual, if it would commissioners, is a quasi judicial proceed offset the damages assessed against the ing and, unless appealed from, is final. In benefits, and, having elected, is now the case of Sears v. Street Comrs. 173 Mass.topped to revoke its action in such matter 350, 53 N. E. 876, it is said: “It is well to the prejudice of the drainage district established that the determination of the and others interested. amount of taxes for special benefits to real Section 17 of the act, being § 2981, Rev. estate by any tribunal to which the legis- Laws 1910, in part provides: "Should any lature delegates the power is a quasi judi- person interested in land appropriated or cial proceeding which cannot take final ef- damaged by the proposed drain or other imfect unless persons to be assessed have an provements fail to file their written excepopportunity to be heard. New London tions to the report of the viewers as hereNorthern R. Co. v. Boston & A. R. Co. 102 inbefore provided, they shall be deemed to Mass. 386; Parsons v. District of Columbia, have acquiesced in any such award and 170 U. S. 45, 52, 54, 42 L. ed. 943, 946, 947, shall forever be estopped from prosecuting 18 Sup. Ct. Rep. 521; Hagar v. Reclamation any action to vacate or avoid the same.” Dist. 111 U. S. 701, 709, 28 L. ed. 569, 572, And § 3057, Comp. Laws 1909, in regard 4 Sup. Ct. Rep. 663; Fallbrook Irrig. Dist. to appeals, provides: “Any person ag. v. Bradley, 164 U. S. 112, 175, 41 L. ed. grieved may appeal from the order of the 369, 394, 17 Sup. Ct. Rep. 56; Stuart v.'commissioners, and upon such appeal there

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may be determined either or any of the under any circumstances, would apply to following questions: First, whether just a drainage district, constructed under the compensation has been allowed for property statute, is not necessary to decide; hut we appropriated; and, second, whether proper do hold it has no application to the case damages have been allowed for property at bar. If all the parties affected, or who prejudicially affected by the improvements; expected to be benefited by the cutting of third, and whether the property for which a drainage ditch, should be directly instruan appeal is prayed has been assessed more mental in initiating proceedings for that than it will be benefited, or more than its purpose, and proceed to organize and conproportionate share of the cost of the im- struct such a ditch, without reference to provements.”

any benefits to the public generally, and Section 3053, id., in part provides: “If should construct said ditch across highthe commissioners shall find that due no ways, probably in such an instance such tice has been given, they shall examine the persons, corporation, or drainage district report of the surveyor and viewers, and if might be required to repair the highways it shall appear that the assessments of the so damaged in crossing. It is clear, under cost of location and construction and of the drainage laws and the Constitution, no damages and benefits to each tract are cor- assessments can be made upon any land on rect, and that the apportionment of the any principle other than that of correscosts of location and construction, is in ponding benefits received. The undertaking proportion to the benefits and damages of here was a gigantic one, of vast magnitude, each tract, fair and just, the same shall be and from the great area of country it will approved and confirmed.

drain, we might be justified in inferring Then it is provided in said section that that it will be of immeasurable benefit to in case the commissioners find that the im- the general public, even if there were no provements so reported are unjust or er- finding to that effect in the record. One roneous, they may, by an order of record, of the prerequisites to the right of making amend the report upon evidence. The sub- this improvement was a finding that it ject-matter certainly was within the au- would be necessary for the “public health, thority of the commissioners, and the law convenience, and welfare” of all, and that specifically gives to the commission author. ! it would not be of special benefit to any ity to adjourn from day to day on the hear- particular class, or specific property. This ing of reports and exceptions, and to make alone should be sufficient reason to make such orders as may be necessary in the let the common-law rule inapplicable. No ting of the contract and the assessment of doubt the larger per cent of the property damages and benefits. The statute also owners, without their consent, are required specifically authorizes the offsetting of bene- to contribute to pay the expense of such fits by damages assessed, and this applies improvements, on the theory that they are as well to the county as to individuals; public utilities and beneficial to the public and in our opinion, the commissioners had health, etc., and for specific benefits rethe authority to confirm and approve the ceived equal to the assessments. Under our finding of the viewers in assessing benefits Constitution, arbitrary assessments against the county in the amount found, only be made in payment of expense of and also in assessing the damage for the constructing a drainage ditch when the construction of the bridges, and that the benefits received are in proportion to the county had a right, acting through its com- assessments made, and that such improvemissioners, to elect whether or not it would ment is a public utility, or is made in the construct said bridges. It having elected, interest of public health. When such imits action should be held final.

provements are made in the interest of the The contention that counsel make, to the public welfare, and without regard to speeffect that it was the duty of the drainage cial benefits conferred, the property of citidistrict, under the common law, to con- zens can be taken only after just compenstruet these bridges, is not tenable. We rec. sation paid therefor, and the expense of egnize the common-law rule, to the effect such improvements must be paid by a genthat where a corporation or other person or eral tax upon all people affected. People company crosses a public highway, it must ex rel. Coon Run Drainage & Levee Dist. be done with as little damage to the high-v. Nortrup, 232 Ill. 303, 83 N. E. 843 ; way as possible, and that it is the legal Cuming County v. Bancroft Drainage Dist. duty of such person or company to con. 90 Neb. 81, 132 N. W. 927. It is shown struct bridges or culverts and make such from the record, and is conclusive, so far other repairs as may be necessary to re- as this proceeding is concerned, that the place said highway in a reasonably safe county received benefits to the public roads condition at the expense of such person of $134,550 by reason of this contemplated crossing same. Whether or not this rule, 'improvement. To this extent, the property

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owners within the district would receive no ceived by such land, and an assessment updirect benefit to their property. In other on a tract of land in excess of the benefits words, every other resident of the county received is void as to such excess." will receive the same benefit by the drain- In 10 Am. & Eng. Enc. Law, 2d ed. 230, age of the public roads as will the prop- it is stated: "The general rule is well erty owners living within the district; and settled that a special assessment for the it would be neither right nor legal that purpose of drainage can be levied only upon the few residing within the district should property benefited by the proposed drainbe compelled to pay the expense for benefits age, and the amount of such assessment received by the public generally. The must not exceed the benefit to be derived bridges required are for the benefit of the by the land assessed." general public, and special assessments can- It was said in the case of Norwood v. not legally be made to pay the expense of Baker, 172 U. S. 269, 43 L. ed. 443, 19 Sup. constructing same. The expense of build. Ct. Rep. 187, by Mr. Justice Harlan, speaking said bridges is a subject of general ing for the court: "In our judgment, the taxation. Sears v. Street Comrs. 173 Mass. exaction from the owner of private prop350, 53 N. E. 876; Hammett v. Philadel- erty of the cost of a public improvement in phia, 65 Pa. 146, 3 Am. Rep. 615; Re substantial excess of the special benefits ac. Washington Ave. 69 Pa. 352, 8 Am. Rep. cruing to him is, to the extent of such ex255; Williamsport's Appeal, 187 Pa. 565, coss, a taking, under the guise of taxation, 41 Atl. 476; Dietz v. Neenah, 91 Wis. 422, of private property for public use without 64 N. W. 299, 65 N. W. 500; Dyar v. Far- compensation. We say 'substantial excess,' mington, 70 Me. 527; Hanscom v. Omaha, because exact equality of taxation is not 11 Neb. 37, 7 N. W. 739; Erie v. Russell, always attainable, and for that reason the 148 Pa. 384, 23 Atl. 1102. To hold other excess of cost over special benefits, unless wise would be in direct violation of § 24, it be of a material character, ought not to article 2, of the Constitution, in that it be regarded by a court of equity when its would be taking private property for a pub- aid is invoked to restrain the enforcement lic use, to the extent, at least, of the of a special assessment.” amount of the assessments of benefits to It is suggested that the county commisthe public highways, amounting approxi- sioners cannot be compelled to build said mately to one sixth of the total value of the bridges, for the reason it would be in violaimprovements.

tion of § 26, art. 10, of the Constitution. Page and Jones on Taxation by Assess. This same objection, no doubt, could be ment, $ 449, lay down the following rule: urged, and properly so, against the enforce“Authority to assess for the construction ment of the collection of the amount of of a system of drains does not include au- benefits assessed to the county in the sum thority to assess for the construction of a of $134,550, yet if said apportionment and bridge at a point where a large drain , assessment are legal, and they appear to crosses a highway.”

be such, under $ 3067, Comp. Laws 1909, it In 14 Cyc. 1025, it is stated : "Under | is made the duty of said county to pay said the various constitutional provisions and amount of benefits assessed in cash, or in acts conferring power upon local authori- time warrants, as it may elect. We have ties to establish drains, it must be shown no authority, and it is not our purpose, to that sueh drain is necessary and conducive require the county commissioners to atto public health, convenience, or welfare, tempt to violate the provision of the Conor of public benefit or utility” (citing cases stitution, but have the authority to require from Indiana, Michigan, Ohio, Oregon, Wis- such commissioners to meet in the manner consin, and New York).

provided by law and take such proceedings Page 1059, id.: "In the assessments of as may be necessary, in compliance with benefits in drainage proceedings, the land- / law, toward the erection of such number of owner should not be charged with general bridges across the drainage ditch in ques. benefits which accrue to him as a member tion upon the public highways as the pubof the community, but only with such as lic good, convenience, and accommodation are special. The benefits for which an as- may require. sessment may be made must relate to the It follows that the judgment of the trial betterment of the land for the purposes to court must be reversed, with direction to which it may reasonably be put, and lands vacate and set aside same, and to enter a not benefited are not subject to assess judgment requiring the county commissionment."

ers to convene immediately and proceed to Page 1061, id.: "The general rule is take such steps as may be necessary in the that the expense of construction of a drain manner provided by law, toward letting cannot be assessed against particular lands contracts for the erection of such bridges to an amount in excess of the benefits re- across Deep Fork drainage ditch No. 1, of

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