Duke, &C., v. O'Bryan, &C.
| Decision Date | 19 February 1897 |
| Citation | 100 Ky. 710 |
| Parties | Duke, &c., v O'Bryan, &c. |
| Court | Kentucky Court of Appeals |
APPEAL FROM DAVIESS CIRCUIT COURT.
SWEENEY, ELLIS & SWEENEY FOR APPELLANTS.
R. A. MILLER OF COUNSEL ON SAME SIDE.
HILL & HILL FOR APPELLEES.
SWEENEY, ELLIS & SWEENEY IN PETITION FOR REHEARING.
JUDGE HAZELRIGG DELIVERED THE OPINION OF THE COURT.
This appeal involves the validity and constitutionality of the drainage act of July 10, 1893. (Sections 2380-2412, Kentucky Statutes.)
The objections to the judgment below establishing the ditch are as follows:
1st. The act under which the proceeding was instituted was repealed before final judgment by the act of March 19, 1894.
2d. It is void because the subject of the act is not expressed in its title.
3d. Because the county court is only given authority to establish a drain or ditch when the public health or public welfare demands it, while in this proceeding the drain is sought to be established on account of the private benefit or utility to certain individuals.
4th. Because the rights of land owners are not properly guarded, section 6 permitting the taxation of persons over whose lands the drain is to run, not only for benefits to pay damages that may be assessed in favor of those over whose lands it runs, but likewise for those who are not benefited but injured.
5th. The act authorizes the taking of private property for a private purpose; also for a public purpose without compensation.
On the first proposition learned counsel content themselves with the assumption that the subsequent act repeals the former one, and direct their argument solely to the effect of the repeal on pending litigation. Without discussing this effect, it seems to us the assumption is unauthorized. The acts are not inconsistent. The title of the first act, and we shall presently see its operation is to be confined to the subject embraced in the title, is as follows: "An act to empower the county courts of this Commonwealth to authorize the drainage of land when the same shall be conducive to the public health, convenience or welfare of its inhabitants."
Then follows some thirty odd sections, in which the county judge is authorized, on the petition of land owners affected by any proposed ditch, to construct the same through his viewers and reviewers by local assessments on the lands affected thereby, laid in proportion to the special benefits derived from the improvement.
The prominent feature of the act is that the cost of the construction, including damages to land owners beyond benefits, is paid by local assessments on the lands of those benefited.
The second act authorizes the several counties of the Commonwealth to remove ponds, pools, swamp marshes, or reclaim swamp land that may cause sickness, to be paid for out of the county levy, or by taxation of the taxable property in the county, etc.
The validity of the second act is not now in question, and it is sufficient to say of it that while its general purpose, so far as the public is concerned, is the same as that of the first act, it is clearly intended to apply to cases where the provisions of the first can not be made to apply, or at least not so appropriately. Its provisions are not inconsistent with those of the first act, and it does not, therefore, operate as a repeal of that act.
As to the second contention it is true that the purpose of the act as expressed in its title is solely a public one, and that besides such purpose, the various county courts are authorized by the body of the act to construct drains, etc., when they are of private benefit or utility.
The first section illustrates this, viz: "That the county judge of any county shall have power, at any regular session of the county court, when the same shall be conducive to the public health, convenience or welfare, or when the same will be of public or private benefit or utility, to cause to be constructed, as hereinafter provided, any ditch, drain or watercourse within said county."
It is manifest, however, that, without regard to the objection growing out of the want of a sufficiently comprehensive title, the act, in so far as it seems to authorize the construction of such an improvement because of private benefits solely, is violative of the spirit if not the letter of the constitution.
In Robinson, &c., v. Swope, &c., 12 Bush, 21, it was held that the provision of the constitution to the effect that private property should not be taken for public use without just compensation previously made was an implied prohibition of the taking of such property for private use either with or without compensation....
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