Great Northern Ry. Co. v. Graff

• Decision Date: 21 May 1947
• Docket Number: 8883
• Citation: 71 S.D. 595,28 N.W.2d 77
• Parties: GREAT NORTHERN RAILWAY COMPANY, Appellant, v. MARTIN N. GRAFF, et al., County Commissioners of Minnehaha County, SD, Respondents, N. B. Brekke, et al., Interveners.
• Court: South Dakota Supreme Court

71 SD 595, 28 NW2d 77 (1947)

GREAT NORTHERN RAILWAY COMPANY,

Appellant,

v. MARTIN N. GRAFF, et al.,

County Commissioners of Minnehaha County, SD,

Respondents,

N. B. Brekke, et al.,

Interveners.

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. John T. Medin, Judge

#8883—Affirmed

T. J. Slattery, St. Paul, MN

H. F. Chapman, Sioux Falls, SD

Attorneys for Plaintiff and Appellant.

John R. McDowell, State’s Attorney

Ernest Raley, Assistant State’s Attorney, Sioux Falls, SD

Attorneys for Defendants and Respondents.

Roy E. Willy, Stordahl & May, Sioux Falls, SD

Attorneys for Intervening Defendants and Respondents.

Opinion Filed May 21, 1947

SMITH, Judge.

A petition praying for the abandonment of the drainage district and works described in State v. Risty, 51 SD 336, 213 NW 952, was filed with the auditor of Minnehaha county and thereafter the Board of County Commissioners noticed it for hearing. Thereupon, plaintiff made application to the trial court for a writ of prohibition on the ground that Ch. 290, Laws 1939, pursuant to which the Board of County Commissioners was proceeding, was unconstitutional and void. An alternative writ was issued. Subsequently an order was entered by the court quashing the writ so issued. The plaintiff has appealed.

The background of the controversy should be sketched. Section 6 of Art. XXI of the Constitution of South Dakota provides:

“The drainage of agricultural lands is hereby declared to be a public purpose and the legislature may provide therefor, and may provide for the organization of drainage districts for the drainage of lands for any public use, and may vest the corporate authorities thereof, and the corporate authorities of counties, townships and municipalities, with power to construct levees, drains and ditches, and to keep in repair all drains, ditches and levees heretofore constructed under the laws of this state, by special assessments upon the property benefited thereby, according to benefits received.”

By Ch. 134, Laws 1907, and by amendatory enactments (cf. SDC 61.10) the legislature authorized the board of county commissioners of any county to establish and construct drainage if found to be conducive to the public health, convenience or welfare, or necessary or practicable for draining agricultural lands, and to assess the cost thereof upon property benefitted by the drainage.

The natural course of the Big Sioux River forms a loop around the city of Sioux ‘Falls. In 1916 the Board of County Commissioners established and constructed a system of drainage the works of which include a diversion ditch, 2 1/2 miles long, and about 75 feet wide across the opening of that loop. This ditch includes a closed concrete spillway which drops the water a distance of about 80 feet.

At the time this drainage was established and constructed the statutes provided that such works “shall be under the charge of the board of county commissioners and their successors in office and be by them kept open and in repair.” § 20, Ch. 134, Laws 1907, and further provided that “For the cleaning and maintenance of any drainage provided herein, assessments may be made upon the land owners affected in the proportions determined for such drainage at any time upon the petition .of any person setting forth the necessity thereof, and after due inspection by the board of county commissioners. ... ” § 13, Ch. 134, Laws 1907.

At that time the statutes made no provision for the abandonment of the ditch, or for the abolishment of an unincorporated drainage district.

Property owned by plaintiff was assessed for more than $16,000 to defray the cost of the drainage. We understand it to be conceded that if the described diversion ditch and spillway and other portions of the drainage works are not maintained, plaintiff’s property and other property in Sioux Falls may suffer serious flood damage.

The enactment assailed by these proceedings reads as follows:

“Section 1. Any intrastate drainage, drainage district and its works heretofore established or existing under the provisions of Sections 8458 to 8491 inclusive of the South Dakota Revised Code of 1919, as amended, or as revised in the South Dakota Code of 1939 at Sections 61.1001 to 61.1044 inclusive may be abandoned and abolished as herein provided.

“Section 2. Whenever a petition is filed with the county auditor, giving the names and last known post office addresses of all the owners of all the lands affected by any such drainage, and theretofore assessed for construction or maintenance of said drainage, and giving the legal description of each tract of land owned by the respective owners, praying for the abandonment of such drainage, drainage district and its works and stating the reasons therefor, signed by persons owning more than three-fourths of all of said lands; and accompanied by a bond with sufficient sureties to be approved by the county auditor, conditioned to pay all expenses incurred if the abandonment and abolishment is not finally accomplished, or if accomplished, are not paid out of surplus funds belonging to the drainage; the county auditor shall present said petition to the board of county commissioners at its next meeting, at which meeting the board shall fix a time and place for hearing said petition, and shall cause notice of said hearing to be mailed to each owner of land named in said petition at the address stated therein, and shall cause said notice to be published once in the official newspapers of said county, all at least ten days before said hearing.

“Section 3. At such hearing any person interested may appear and be heard; and if after a full hearing the board of county commissioners shall find that such abandonment and abolishment is for the best interests of the owners of more than one-half of all the lands described in the petition, the petition shall be granted and the drainage, drainage district and its works shall be abandoned and abolished. Otherwise the petition shall be denied.

“Section 4. When any petition is granted the board of county commissioners shall provide by resolution that all expenses incurred in the proceedings shall be paid out of any surplus funds in the county treasury belonging to said drainage and drainage district and that the balance of such funds shall be paid to the owners of the respective tracts of land in proportion to the assessment contributions of the respective tracts, their present and former owners to said funds.

“Section 5. When the drainage and drainage district extends into more than one county the same petition shall be filed in each county and the boards of the respective counties shall act conjointly in fixing the time and place of hearing and in hearing and determining the petition and in ordering payments pursuant to Section 4 hereof, and notice of the hearing shall be mailed to each landowner as provided in Section 2 hereof and shall be published in the official newspapers of each county as provided in Section 2.

“Section 6. The abandonment and abolishment of any drainage, drainage district and its works, as herein provided, shall not affect the obligation or validity of any assessments theretofore made against any of the lands involved, nor the lien of such assessments, which shall be collected, enforced and applied in the same manner as if no abandonment or abolishment had taken place.

“Section 7. Any person deeming himself aggrieved by any order or determination of the board or boards of county commissioners may perfect an appeal to the Circuit Court of any county in which the drainage or portion thereof is located in the manner provided in Section 8469 of the South Dakota Code of 1919 or Section 61.1013 of the South Dakota Code of 1939 and the Circuit Court shall hear and determine the matter de novo.”

Ch. 290, Laws 1939.

The assignments assert two propositions, viz., (1) The quoted enactment is repugnant to the 14th Act of Amendment to the Constitution of the United States and to § 2, Article VI of the Constitution of South Dakota because it authorizes interference with vested rights and interests and the taking of property without due process of law, and (2) such enactment is inoperative and void because its provisions are indefinite, uncertain and unworkable.

The settled principle that courts will not declare a statute invalid on doubtful grounds is invoked by both of plaintiff’s contentions. State v. Morgan, 2 SD 32, 48 NW 314; Warren v. Brown, 57 SD 528, 234 NW 38; State ex rel. Botkin v. Welsh, 61 SD 593, 251 NW 189; and 50 Am. Jur. 486.

In considering plaintiff’s first contention we pause to declare what we deem to be plain, viz., that Ch. 290, Laws 1939, purports to do no more than to authorize the board of county commissioners, in described circumstances, by resolution, to abolish the “unincorporated drainage district,” (cf. Davison County v. Watertown Tile & Construction Co., 47 SD 101, 196 NW 96, 97), and to abandon the drainage ditch and works. The act fails to reflect an intention to authorize the destruction of the drainage ditch and works or to deprive anybody of the use thereof for drainage purposes. The act provides a procedure for divesting the board of commissioners of power to levy future assessments upon the property in the unincorporated drainage district, and consequently for divesting it of the power to maintain and repair the drainage ditch and works.

The constitutional vice in the act according to plaintiff is that it requires the abolishment of the tax district and the consequent power to maintain and repair the ditch if the board finds such a course in the interest of the owners of a major portion of the land of the district, irrespective of the resulting damage to the property and invasion of the vested rights and interests of other landowners in the district.

This view of plaintiff finds support in the holding of the Nebraska court in the case of Ritter et al. v....