subject to constitutional1022 and other objections that may be raised touching its legality either as violating express constitutional provisions or some fundamental rule determining the validity of laws.1023 446. The authority; by whom; when and how executed. The state itself can only act within the limits of its jurisdiction, much less can a subordinate agent do otherwise. The rule of law, therefore, applies that all bodies or officials to whom is intrusted the execution of any act in connection with the exercise of a particular grant of power are confined strictly to the district 1022 In re Central Irr. Dist., 117 Cal. 382, 49 Pac. 354. The Wright Act, so called, Stat. 1887, p. 29, held constitutional. Heffner v. Cass & Morgan Counties, 193 Ill. 439, 58 L. R. A. 353; Griffith v. Pence, 9 Kan. App. 253, 59 Pac. 677. Kan. Acts 1879, c. 100, are not unconstitutional as taking private property for public use without compensation. State v. Flower, 49 La. Ann. 1199. La. Session Acts of 1896, No. 114, relating to the drainage of the city of New Orleans does not violate constitution, art. 46, prohibiting the enactment of local or special laws. Dodge County v. Acom, 61 Neb. 376, 85 N. W. 292; Dakota County v. Cheney, 22 Neb. 437; State v. Colfax County, 51 Neb. 28; In re Lent, 47 App. Div. 349, 62 N. Y. Supp. 227. A law not providing for compensation to owners of property taken or damaged in the construction of a drain is unconstitutional Pool v. Trexler, 76 N. C. 297; Brown V. Keener, 74 N. C. 714. 1023 Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112; People v. Parks, 58 Cal. 624. An act for the promotion of drainage which does not designate the locality where drain age is necessary or establish the boundaries of a drainage district but delegates this duty to a board is unconstitutional. Young America Drainage Com'rs v. Shiloh Drainage Com'rs, 91 Ill. App. 241. Where no remedy is given in drainage laws, it will be presumed that the legislature in granting the right and creating a liability intended that the parties should use the proper remedies already estabiished by common courts of justice. Huston v. Clark, 112 Ill. 344. The Illinois drainage act of May 29th, 1879, held not unconstitutional as conferring the power to tax in the courts. Heffner v. Cass & Morgan Counties, 193 Ill. 439, 58 L. R. A. 353; McKinsey v. Bowman, 58 Ind. 88. The rule of law applies that where two statutes conflict, the provisions of the later one will control. Lien v. Norman County Com'rs, 80 Minn. 58, 82 N. W. 1094, holding general laws of 1887, c. 97, not repealed by general laws 1887, c. 98, providing for the formation of drainage districts. Dodge County v. Acom, 61 Neb. 376, 85 N. W. 292. Neb. St. 1899, c. 89, art. 1, is not within the limits of which they can legally act.1024 The principle also holds that grants of power to subordinate agencies are of a restricted nature. If general in terms, they are limited by the rule that official action is confined strictly to that which is necessary for the proper performance of particular official duties;1025 if the grant is special in its character, it is clearly limited by a narrow construction of the terms employed.1026 The particular unconstitutional as violating any provision relating to due process of law, or the right of taking private property without compensation. In re Tuthill, 36 App. Div. 492, 55 N. Y. Supp. 657; In re Lent, 47 App. Div. 349, 62 N. Y. Supp. 227; Brown v. Keener, 74 N. C. 714; Pool v. Trexler, 76 N. C. 297; Martin v. Tyler, 4 N. D. 278, 60 N. W. 392, 25 L. R. A. 838; Lewis County v. Gordon, 20 Wash. 80, 54 Pac. 779, and Skagit County v. McLean, 20 Wash. 92, 54 Pac. 781. 1024 Lussem v. Sanitary Dist. of Chicago, 192 Ill. 404, 61 N. E. 544. The jurisdiction of the sanitary district of Chicago in respect to the Chicago River is co-extensive with and does not conflict with the jurisdiction of the city of Chicago. Wilson v. Sanitary Dist. of Chicago, 133 Ill. 443. A drainage district may include portions of a village already organized. Fletcher v. White, 151 Ind. 401, 51 N. E. 482. But a landowner may be estopped by his conduct in permitting, without objection, work to be done for his benefit by an officer not having authority. Sauntman v. Maxwell, 154 Ind. 114, 54 N. E. 397; Bondurant V. Armey, 152 Ind. 244; Aldrich v. Paine, 106 Iowa, 461, 76 N. W. 812. Construing Iowa Code 1873, § 1207, and holding that boards of supervisors of counties have jurisdiction over all the territory within the county although a portion of this may be incorporated as a village or town. Inhabitants of Melrose v. Hiland, 163 Mass. 303, 39 N. E. 1031. The power to construct implies the power to maintain and repair after construction. Woodbridge v. City of Cambridge, 114 Mass. 483; Robertson v. Baxter, 57 Mich. 127; Kent v. Perkins, 36 Ohio St. 639. A township may include within its limits an incorporated village, and an assessment can be made by its trustees upon village property for the construction of a township ditch. 1025 Lussem v. Sanitary Dist. of Chicago, 192 Ill. 404, 61 N. E. 544. Scott v. Brackett, 89 Ind. 413. This principle of law cannot be deemed to apply to proceedings conferring legislative powers. Witty v. Nicollet County Com'rs, 76 Minn. 286, 79 N. W. 112; Nichnabotna Drainage Dist. v. Campbell, 154 Mo. 151. 1026 O'Brien v. Wheelock, 184 U. S. 450, affirming 95 Fed. 883. First 、at. Bank v. Union Dist. No. 1, 82 Ill. App. 626. Indebtedness cannot be incurred in advance of the construction of a drain. Parish of Concordia v. Natchez R. R. & T. R. Co., 44 La. Ann. 613, 10 So. 809. Police juries under the Louisiana laws have no power to interfere with private drains. Witty v. Nicollet County Com'rs, application of this principle will be found in the notes and cases: cited. The law-making power of the state possesses the most ample authority to authorize and direct the construction and the maintenance of all works of local improvement;1027 it is limited only by such constitutional provisions as the courts hold apply, and such other general principles of law as are pertinent and applicable for the protection of personal rights, of property or otherwise, from tyrannical and illegal legislative action.1028 In applying the rules just given, it must be remembered that the place,1029 76 Minn. 286, 79 N. W. 112. No authority is given by laws of 1897, c. 97, for the drainage of public meandered lakes. Drainage Dist. No. 1 v. Daudt, 74 Mo. App. 579. A drainage board has no authority to employ and pay an attorney for enforcing the collection of a drainage tax. McLaughlin v. Sandusky, 17 Neb. 110; Belknap v. Belknap, 2 Johns. Ch. (N. Y.) 463. 1027 Pittsburgh, C., C. & St. L. R. Co. v. Machler, 158 Ind. 159, 63 N. E. 210; Hoffman v. City of Muscatine, 113 Iowa, 332, 85 N. W. 17. But it is beyond the power of the legislature to compel an individual to construct a drain or sewer which serves as a public drain. "Nowhere is the city empowered to require the citizen to construct drains at his own expense to carry off the surface water accumulated by the improvements of the streets. * To permit the city to concentrate and throw large quantities of surface water on an ungraded lot and then compel the owner, when bringing to grade, to construct drains through it at his own expense, would impose an intolerable burden and might in some cases amount to the practical taking of private property without compensation." Anketell v. Hayward, 119 Mich. 525, 78 N. W. 557; Casey v. Burt County, 59 Neb. 624, 81 N. W. 851; Dakota County v. Cheney, 22 Neb. 437; Harmon v. City of Omaha, 53 Neb. 164; Benjamin v. Hiler, 63 N. J. Law, 145, 47 Atl. 24; Thompson v. Wood County Treasurer, 11 Ohio St. 678; Bliss v. Kraus, 16 Ohio St. 55; Seely v. Sebastian, 4 Or. 25; Borough of Mauch Chunk v. McGee, 81 Pa. 433. 1028 Parish of Concordia V. Natchez, R. R. & T. R. Co., 44 La. Ann. 613, 10 So. 809; Avery v. Police Jury of Iberville, 12 La. Ann. 556; 114; Sicard v. Chitz, 13 La. (O. S.) State v. Miller, 41 La. Ann. 53. 1029 Minnesota & M. Land & Imp. Co. v. City of Billings, 111 Fed. 972. To secure a proper outlet for a general system of drainage, a city may extend it outside its limits. People v. Cook, 180 Ill. 341. Public officials cannot, by the laying of drains, affect the subdivision of unsubdivided land. This is a right which belongs to the property own er. Briar v. Job's Creek Drainage Dist. Com'rs, 185 Ill. 257. A natural watercourse may be properly utilized in the construction of a drain. Sauntman v. Maxwell, 154 Ind. 114, 54 N. E. 397; Lipes v. manner1030 and time1031 of the exercise of the power by subordinate agencies within the extent granted, is usually of a discretionary nature, and unless, as repeatedly held, there is a manifest abuse of power in its exercise or lack of it, courts will not interfere with the action of such subordinate agencies in carrying out the plain provisions of the law.1032 Hand, 104 Ind. 503; McMahon v. City of Council Bluffs, 12 Iowa, 268; Sturm v. Kelly, 120 Mich. 685; Brady v. Hayward, 114 Mich. 326; Northern Ohio R. Co. v. Hancock County Com'rs, 63 Ohio St. 32. 1030 French v. White, 24 Conn. 170. Through the grant of power, however, the commission of a tort cannot be authorized. McCaleb v. Coon Run Drainage & Levee Dist., 190 Ill. 549; Cochran v. White, 151 Ind. 435, 51 N. E. 723; Pittsburgh, C., C. & St. L. R. Co. v. Machler, 158 Ind. 159, 63 N. E. 210; Kirkland v. Public Works of Indianapolis, 142 Ind. 123. The authority to improve a street includes the right to drain its surface waters. Hoffman v. City of Muscatine, 113 Iowa, 332, 85 N. W. 17. A property owner cannot be required to provide for more than the drain of a natural water course. Coomes V. Burt, 39 Mass. (22 Pick.) 422; Beals v. James, 173 Mass. 591, 54 N. E. 245; Sturm v. Kelly, 120 Mich. 685; Bruggink v. Thomas, 125 Mich. 9, 83 N. W. 1019. A liability will result from a negligent construction. Northern Ohio R. Co. v. Hancock County Com'rs, 63 Ohio St. 32; Wendel v. Spokane County, 27 Wash. 121, 67 Pac. 576. 1031 Sturm v. Kelly, 120 Mich. 685. Contracts for the construction of a drain cannot be legally let until an order has been obtained. 1032 De Gravelle v. Iberia & St. M. Drainage Dist., 104 La. 703, 29 So. 302. The action of public authorities in determining the extent of territory properly charged with the cost of drainage is legislative and, therefore, discretionary in character. The syllabus by the court on this point is as follows: "Drainage districts are established either by direct authority of the general assembly or by delegated authority to political bodies or subdivisions of the state. The body exercising this authority determines over what territory the benefits are so far diffused as to render it proper for all lands to contribute to the cost of the drainage work. The subject for its determination is legislative in character. The legislative acts cannot be attacked on the grounds of error in judgment regarding the special benefits and defeated by satisfying the courts that no special or particular benefits are received, unless under very exceptional conditions. They cannot be attacked for impolicy or overthrown showing that in particular instances they operate harshly or unjustly. Judicial judgment is not to be substituted lightly for legislative judgment. The benefits contemplated need not be direct nor immediate." Town of New Iberia v. New Iberia & B. C. Drainage Dist., 106 La. 651. The rule is applied also to the selection of officers by drainage districts considered as distinct entities. Stout v. by § 447. Drainage or irrigation districts. In several states, the exercise of a power granted by law is contingent upon affirmative action by the people within the district whose property is to be assessed in a manner directed to pay the cost of a proposed improvement,1033 or the right of the authorities may be dependent upon a determination of the "necessity" or "feasibility" for a drain irrespective of the manner Chosen Freeholders & Surveyors of 54 N. E. 397. "The cases to the effect that the question as to what route is best and cheapest is wholly within the judgment of the drainage commissioners, and cannot, in the absence of fraud, be litigated on remonstrances against their report, apply merely to the special location of the drain that has been described in general terms in the petition. Manifestly, it is not within the discretion of the drainage 1033 Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112. Persons interested in a proposed improvement have the right to appear before the county supervisors and contest the facts upon which preliminary proceedings are based. They can also raise the question of a "reception of benefits." Ralston v. Sacramento commissioners to locate specifically County Sup'rs, 51 Cal. 592; Scott v. People, 120 Ill. 129; Lees v. Drainage Com'rs, 125 Ill. 47, affirming 24 Ill. App. 487. Drainage commissioners may, however, change the boundaries of a drainage district without requiring an amendment ter fully covered by the act of 1885 to the petition. a drain, other than the one generally described in the petition. If a drain wholly in the county were petitioned for, it would be without the purview of the amendatory act of 1889; it would be a subje ́t-mat as originally passed, and the report of the drainage commissioners and the judgment of the court confirming the report, establishing a drin through a city would be void for want of jurisdiction over the subject matter. That a necessity exists for the drainage of country lands by means of a drain pa~~ing through the corporate limits of a city is a jurisdictional fact to be established by the petitioners, and as the method of determination of the sufficiency of the remonstrance for dismissal depends upon the existence of the necessity, that jurisdictional fact must be shown on the Mason & T. Special Drainage Dist. Com'rs v. Griffin, 134 Ill. 330, 28 Ill. App. 561; People v. Cooper, 139 Ill. 461. It is not necessary that guardians ad litem should be appointed for infant owners of land sought to be included in a drainage district. Shoemaker v. Williamson, 156 Ind. 384, 59 N. E. 1051; Watkins v. Pickering, 92 Ind. 332. The Ind. Act of March 9th, 1875, does not require a petition for the construction of a drain to be signed by all the land owners affected. Miller v. Graham, 17 Ohio St. 1. As to the effect of a "remonstrance" see Sauntman v. Maxwell, 154 Ind. 114, hearing of the remonstrance." |