Alexander v. McInnis

• Decision Date: 19 March 1915
• Docket Number: Nos. 19,212-(306).,s. 19,212-(306).
• Citation: 129 Minn. 165
• Parties: EDWARD P. ALEXANDER v. NEIL McINNIS and Others.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

Page 165

129 Minn. 165

EDWARD P. ALEXANDER v. NEIL McINNIS and Others.¹

Nos. 19,212-(306).

Supreme Court of Minnesota.

March 19, 1915.

Action in the district court for St. Louis county against the county commissioners, county treasurer and county auditor of that county, to restrain them from executing and selling state rural highway bonds for the benefit of state rural highway No. 4. From an order, Fesler, J., sustaining defendants' demurrer to the complaint, plaintiff appealed. Affirmed.

John H. Brigham, for appellant.

Ambrose Tighe filed a brief in behalf of appellant.

Charles E. Adams, for respondent.

Edward Lees filed a brief in behalf of respondent.

DIBELL, C.

This action is brought to restrain the defendants, who are the commissioners, treasurer and auditor of St. Louis county, from issuing bonds for the construction of a state rural highway. The defendants demurred to the complaint. The demurrer was sustained. The plaintiff appeals from the order sustaining it.

The plaintiff is a property owner and a taxpayer in the city of Duluth. The state rural highway, for which it is proposed to issue bonds, is wholly within St. Louis county. The plaintiff owns no land specially benefited by the highway.

The statutory authority for the construction of state rural highways is Laws 1911, p. 352, c. 254, commonly known as the Elwell Law. This law adopts by reference the procedural features of the drainage act as embodied in sections 3 to 52 inclusive of Laws 1905, p. 303, c. 230, "so far as the same may be made applicable to the laying out, improving and construction of highways and the raising of money therefor and to the assessment of benefits and the payment of damages, if any, incident to such construction or improvement," other than a few provisions expressly excepted.

The formal proceedings taken by the county officials are regular. The questions raised are upon the validity of the act, either the whole of it or parts of it.

1. It is objected that the highway act is unconstitutional as conferring legislative powers upon the judiciary.

Section 1 provides that highways may be laid out and constructed by county boards when they are wholly within a county and by the district court when they extend into more than one county. The highway involved is wholly within St. Louis county; but the contention is that the conferring of authority upon the district court, when the highway is in more than one county, makes the act wholly unconstitutional.

The principal provisions of the drainage law (Laws 1905, p. 303, c. 230), which are adopted by the highway law, and which are applicable to the duties of the district court when the highway is in more than one county, are found in sections 27 to 34 inclusive. In the case of a judicial ditch the petition is filed with the clerk of the court instead of with the auditor. It is substantially true that the clerk and the civil engineer in charge, instead of the auditor and the engineer, attend to the preliminary work. The proceeding reaches the court in substantially the same form as it reaches the county board under section 10 of the drainage act when the ditch is in one county. An examination of this section shows that the duties cast upon the county commissioners are largely judicial; and as to some of them an appeal to the district court is given.

In State v. Crosby, 92 Minn. 176, 99 N. W. 636, the court held an act of the legislature authorizing the district court to provide for the construction of ditches to drain wet and overflowed lands, where the same extended into two or more counties, under Laws 1902, p. 90, c. 38, was not unconstitutional as conferring legislative powers upon the judicial department of the state. In that case Justice Brown, the present Chief Justice, in considering the question presented, said (at page 180):

"The marked tendency of legislation in recent years, not only in this state, but in other states, has been, to a large degree, to break away from the theory of three separate and independent departments of government, by imposing upon other departments duties and powers of a legislative character, which the courts have been inclined to sustain. Perhaps few, if any, cases are to be found, however, where statutes imposing purely legislative duties and powers upon the courts have been upheld; but the authorities are numerous, sustaining statutes which impose upon the courts powers involving the exercise of both judicial and legislative functions — such as the condemnation of land for public purposes, the appointment of commissioners of election in proceedings for adding territory to municipal corporations, and laying out and establishing highways. The proceedings provided for by the statute under consideration involve the exercise of both legislative and judicial powers. The question of the propriety or necessity of public ditches to drain marshy or overflowed lands is one of legislative character. The condemnation of land through which such ditches may be constructed, the assessment of damages, and the determination of the legal rights of parties affected are judicial. The exercise of all these powers is involved in proceedings under this statute.

"The power and authority to lay out and open public highways is legislative in its nature and essentials, and in no sense except in some details is it judicial. Yet we have sustained legislation providing for the laying out and opening of so-called judicial highways; statutes conferring upon the district courts of the state authority to lay out and open highways where they extend into two or more counties. State v. Ensign, 55 Minn. 278, 56 N. W. 1006; State v. McDonald, 26 Minn. 445, 4 N. W. 1107. If a statute of that nature be within constitutional limitations and valid, and it was sustained in the cases cited, no reason occurs to us why a statute conferring upon the district courts power to lay out and establish ditches and drains should not also be held valid. Though the power and authority in each case is legislative in character, in carrying out and applying the statute the exercise of judicial functions is also involved. No distinction can be made between the judicial highway and the judicial ditch constructed for the purpose of draining, for the public benefit and welfare, marshy or overflowed lands. There being no logical distinction, the statute under consideration must be sustained, or we must overrule the cases just cited."

The language used is applicable to the case before us and controls it; and we hold that the act is not unconstitutional as conferring legislative powers upon the judiciary.

2. It is claimed that the highway law is so uncertain in its provisions that it is void.

It is a crude piece of legislation. The adoption of the procedural provisions of the drainage statute — a statute having differences as well as likenesses — has resulted in difficulties of administration. It is true, as stated in State v. Reusswig, 110 Minn. 473, 126 N. W. 279, that a statute is not valid unless there is a competent expression of legislative will and that judicial interpretation cannot be allowed to usurp the place of legislative enactment. It is equally true that it is the duty of public officials to administer a law, though it involves difficulties, and of courts to construe it and give effect to legislative enactment when the legislative intent can be found. The courts seek to give a construction which will make a statute operative. As is said by one of counsel, this court in Murray v. Smith, 117 Minn. 490, 136 N. W. 5, 40 L.R.A.(N.S.) 173, Ann. Cas. 1913D, 548, and Benton v. County of Hennepin, 125 Minn. 325, 146 N. W. 1110, treated this act as a substantial piece of legislation of operative practicability. This is our present view of it.

3. It is claimed that the issue of bonds is invalid because the county which is charged with the payment of one-fourth of the cost makes itself primarily liable for the whole of the cost.

Clearly enough the highway law makes the county primarily liable for the whole cost. Section 4 expressly provides that "the county, or counties, in which any state rural highway shall be constructed or improved shall be liable primarily for all the expenses of such proceedings." The purpose to charge the county with primary liability is not open to question. Nor is there impropriety in it. In Van Pelt v. Bertilrud, 117 Minn. 50, 134 N. W. 226, Justice Holt, in considering the character of the bonds issued under the drainage act, held them direct and general obligations of the county, saying:

"The theory upon which drainage legislation rests is public utility and welfare. The interests of individuals are incidental and can never alone justify either changing or affecting property against the owner's consent, as may be done in establishing drains. It is to subserve a public purpose, and not private ends, that the law was enacted. With this in mind, it is not difficult to come to the conclusion that the legislature intended that the county should be primarily and directly liable for the expense of establishing, constructing, and maintaining this public utility. And if the expense is paid by the county by the issue and sale of bonds, then the county should pledge its credit for the payment of such bonds."

4. The objection is made that the bonds issued must be redeemed by general taxation and that the plaintiff, a resident of Duluth, within the county, whose property is not specially benefited, will be required to contribute to the payment of the county's proportion.

There occurs to us no reason why he should not. The fixing of the taxing district was within the reasonable discretion of the legislature. Maltby v. Tautges, 50 Minn. 248, 52 N. W. 858. The plaintiff is properly taxed for rural highways within the county. Love v. Town of Preston, 112 Minn. 459, 128 N. W. 673; Chicago, etc., R. Co. v. Murphy, 106 Iowa, 43, 75 N. W. 680; Smith v. Board, 173 Ind....