Beebe v. Magoun

• Court: Iowa Supreme Court
• Writing for the Court: LADD, J.
• Citation: Beebe v. Magoun, 122 Iowa 94, 97 N.W. 986 (Iowa 1904)
• Decision Date: 12 January 1904
• Parties: W. H. BEEBE et al., Appellants, v. JOHN A. MAGOUN, Treasurer, AND COUNTY OF WOODBURY

97 N.W. 986

122 Iowa 94

W. H. BEEBE et al., Appellants, v. JOHN A. MAGOUN, Treasurer, AND COUNTY OF WOODBURY

Supreme Court of Iowa, Des Moines

January 12, 1904

Appeal from Woodbury District Court.--HON. WM. HUTCHINSON, Judge.

ACTION to enjoin the collection of taxes levied in payment for the excavation of a ditch. On hearing, the petition was dismissed, and the plaintiffs appeal.

Reversed.

J. S Lothrop for appellants.

Shaw Sims & Kuehnle and P. A. Sawyer for appellees.

OPINION

LADD J.

By proceedings somewhat irregular, but in substantial conformity with sections 1939 to 1951, inclusive, of the Code, a ditch was located, "commencing at or near a clump of trees growing near the center of S. E. 1/4 of section 15, Tp. 86, R. 45 west, in Woodbury county, and running thence in a southeast direction to the south line of Woodbury county, at or near the center of the south line of section 35 in said township and range." From there on it extended into Monona county. Appropriate orders were made by the board of supervisors, the contracts for the excavation let, and, as we understand, much of the work had been done before this suit was begun. "All the land benefited by the location and construction of the improvement" was divided into the classes "dry," "low," "wet," and "swamp"; and the appraisers reported that they had made "an equitable apportionment of the cost, expenses, cost of construction, fees, and damages assessed for the construction of any such improvement * * * among the owners of the land along or in the vicinity of such improvement, and to be benefited thereby, in proportion to the benefit to each of them." Such proportional amount was duly levied by the board of supervisors against the respective tracts of land thought to have been benefited. Section 1946, Code. The ditch did not run through the land of the plaintiffs, nor did their lands abut thereon. Their lands were at considerable distance from the ditch, though probably not wholly without benefit from its construction. These owners never received notice of any of the proceedings, and were not apprised of the levy of the apportionate share of the necessary outlay until long after the time fixed for taking an appeal from the assessment to the district court, provided for by section 1947, had expired. Nor do the statutes require any notice, save "on the owner of each tract of land through or abutting upon which" the proposed improvement is to be made. The primary purpose of this notice is to enable them to make claim for damages which may be occasioned by the construction of the ditch. Whether it will also serve as notice that the cost, etc. will be apportioned, and in part levied against their lands, is not now for determination.

The extent of appellant's contention is that in so far as the statutes authorize the assessment and levy of taxes against lands through which the ditch does not run, and which do not abut upon it, they are in conflict with the provision of the state Constitution prohibiting deprivation of property without due process of law. By "due process of law," in a case like this, is meant "notice and an opportunity of being heard," and the necessity therefor as prerequisite to the taking of private property by taxation, is uniformally recognized. The subject received thoughtful consideration in Gatch v. City of Des Moines, 63 Iowa 718, 18 N.W. 310, and the conclusion was reached that "the arbitrary appropriation of private property without notice and without an opportunity for hearing cannot be defended upon any natural principle of justice, and ought not to be tolerated and upheld by the courts," and that "in the ordinary methods of assessment and valuation of property for taxation, whether for general or special purposes, the authorities are very nearly uniform to the effect that it is necessary to the validity of the assessment that the property owner should have notice and an opportunity to be heard." In that case statutes authorizing the assessment of the cost of street improvements against abutting lots without notice to the owners, and without affording an opportunity of being heard, were declared to be inimical to the provisions of the Constitution. The question was again considered at length in Ferry v. Campbell, 110 Iowa 290, 81 N.W. 604, where statutes imposing an inheritance tax were declared subject to the same infirmity. Exceptions there may be as in the case of a poll tax, a license tax, and the like, where the amount to be exacted is definitely fixed, and a hearing would be of no...