In re The Jarnecke Ditch

• Decision Date: 30 July 1895
• Docket Number: 9,225.
• Citation: 69 F. 161
• Parties: In re THE JARNECKE DITCH.
• Court: United States Circuit Court, District of Indiana

69 F. 161

In re THE JARNECKE DITCH.

No. 9,225.

United States Circuit Court, D. Indiana.

July 30, 1895

J Kopelke, for petitioners.

J. W Youche, Winston & Meagher, and W. C. McMahon, contra.

BAKER District Judge.

On September 9, 1892, John F. Jarnecke and 72 others, owners of land in the county of Lake, in the state of Indiana, filed their petition in the circuit court of that county, alleging that a large amount of land in said county would be benefited by drainage, which would not be accomplished without affecting the lands of others, who are named, with a description of the lands owned by them; that such drainage could be best effected in the manner particularly described in the petition; that the public health would be promoted, and public highways and the right of way of railroads would be benefited by such drainage, and that the same would be of public utility. Notice of the filing and pendency of the petition was given in the manner provided in the statute. On December 23, 1892, the court referred said petition and the matters therein contained to the commissioners of drainage of said county. On April 22, 1895, said commissioners filed their report, accompanied with a map and profile of said drain. On May 3, 1895, 27 landowners, parties to, and who would be affected by, said proposed drainage, filed their several remonstrances to said report. On the same day, and contemporaneously with the filing of said remonstrances, four of said remonstrants, to wit, the Tolleston Club of Chicago James Stinson, the Michigan Central Railway Company, and John Gunzenhauser, filed their several petitions and bounds for the removal of said cause from the state court into this court. The state court found that the petitions for removal, which are substantially alike, were in due form, and that the bonds tendered therewith were sufficient, but refused to grant the prayer of either petition, for the reason that, in the opinion of the court, no removable controversy was shown to exist. A transcript of the proceedings in the state court has been presented here, and the petitioners for the removal now ask leave to file the same, and to have said cause docketed, to which the petitioners for the drain object.

The proceedings for the establishment and construction of a drain are purely statutory. The statute providing therefor depends for its validity on the power of eminent domain and the taxing power of the state. A drain cannot be established or constructed unless the work will promote the public health or conduce to public utility. The landowner can only be assessed for the accomplishment of this public purpose to the extent that his land will receive a special and particular benefit from the drain, as contradistinguished from the benefit to the general public. The drainage act in question (2 Burns' Rev.St. §§ 5622-5664, incl.) has been repeatedly considered by the supreme court of this state, and it has always been regarded as providing a special statutory proceeding for the establishment and construction of drains, kindred in character to statutes providing for the establishment and construction of gravel roads, streets, sewers, and other like public improvements. A commission is provided for, which determines the public utility of the drain, the extent of the district on which the assessments are to be laid, the amount of the benefits or injuries to each parcel of land situated therein, and how much each landowner shall pay or receive on account of such public improvement. In the case of Hays v. Tippy, 91 Ind., 102, 106, the court, in construing the drainage act in question, held that a drainage proceeding was not a civil suit or action. The court said:

'This proceeding is not, in any proper sense, a civil action or a civil case. It is a special proceeding, authorized by the general assembly for the express purpose of promoting public health or improving public highways. Throughout the entire statute it is manifest that the legislature did not intend that such a proceeding should be subjected to any of the delays ordinarily incident to the trial of a civil cause.'

The court further said that it was clear that the provisions of the statute governing proceedings in civil suits did not apply to proceedings under the drainage act. The doctrine of this case has been reaffirmed and applied in later cases. Dukes v. Working, 93 Ind. 501, 503; Anderson v. Caldwell, 91 Ind. 451, 454; Crume v. Wilson, 104 Ind. 583, 587, 4 N.E. 169. But the legislature of a state cannot, by making special provisions for the trial of particular controversies, nor by declaring such controversies to be special proceedings and not civil suits at law or in equity, deprive the federal courts of jurisdiction nor prevent a removal. A state legislature, if the constitution of the state does not forbid it, may provide for the trial of any cause in some special way unknown to the methods of procedure at law or in equity. But, whatever the method of procedure, it would be none the less a trial if conducted by a tribunal having power to determine questions of law and fact; and, if the subject-matter constituted a controversy involving the legal or equitable rights of parties, it might be cognizable in the courts of the United States. Unless this were so, the only thing the legislature of a state would have to do to entirely destroy the jurisdiction of the federal courts and the right of removal would be to abolish all suits at law and in equity, and substitute special statutory methods of procedure. Neither the legislature nor the courts of a state have the power, by giving new names to legal proceedings, to change their essential character. Courts will look beyond forms to the substance, and from it determine whether the controversy, in its essential nature, is a suit at law or in equity, as understood by the courts of the United States. Railway Co. v. Jones, 29 F. 193, 196. From these considerations it follows that the decisions of the supreme court of the state are not controlling on the question now before the court.

Section 5623 of the statute provides that, after taking certain preliminary steps, 'the commissioners shall proceed and definitely determine the best and cheapest method of drainage, * * * estimate the cost thereof, divide the drain or ditch into sections, * * * and compute and set out the number of cubic yards of excavation in each section and assess the benefits or injury, as the case may be, to each separate tract of land to be affected thereby. ' The statute further provides that any landowner may remonstrate, and that, after the remonstraces have been filed, all questions arising on the petition, report, remonstrance, or remonstrances shall be tried by the court. The court may modify or equalize the assessments as justice may require, by diminishing the assessments on one or more tracts and by increasing them on others, or by giving or withholding damages; and for such purposes all persons whose lands are reported to be affected * * * shall be deemed to be in court,' and the court may, if the facts shall justify it, make assessments against the same; and as such assessments are so changed, modified, or equalized or made, they shall stand, and be adjudged valid. The statute further provides that the county commissioner or other person charged with the execution of the work shall pay all damages that have been assessed or laid by the court, and the cost of the construction of the work; and it is further provided that the assessment shall be a lien on each separate piece of property on which the same is assessed, and that such liens shall be deemed to exist from the date of the filing of the report of the commissioner. The report of the commissioner constitutes the complaint to which the remonstrances are addressed. The findings contained in the report may be put in issue by any remonstrant who may allege that the drain will not promote the public health or be of public utility, or that the drainage proposed is not practicable, or that the work cannot be accomplished for the aggregate amount of the benefits, or that the lands of the remonstrant are assessed too high as compared with the assessment on the lands of others. Each remonstrant has the right to have such issues as are presented by his remonstrance tried by the state court without a jury. And it is further provided that if the court find that the proposed drainage will not promote the public health, or be of public utility, or that the drainage is not practicable, or that it will cost more than the aggregate amount of the benefits, the proceedings shall be dismissed.

The proceeding contemplates the taking of lands for the drain and its embankments, and the proportionate assessment of the benefits upon all lands benefited by such drainage, and the collection of so much of such benefits as may be necessary to construct the drain. Do the appropriation and condemnation of lands whereon to construct the drain and the assessment of benefits upon the land benefited by its construction constitute a controversy of a civil nature at law or in equity, cognizable by the federal courts? It is clear that the proceedings had by and before the drainage commissioners do not constitute a controversy of a civil nature at law or in equity. When the report is filed in court it becomes a complaint, to which remonstrances may be addressed in the nature of pleas in bar, which will give rise to controversies which may result in defeating or modifying the report. The report states a cause of action against each landowner named therein. It states that each landowner will be benefited in a specified sum by a work which will promote the public health and be conducive to public utility. Each remonstrant is entitled, if...