Bemis v. Guirl Drainage Company
| Decision Date | 04 June 1914 |
| Docket Number | 22,543 |
| Citation | 105 N.E. 496,182 Ind. 36 |
| Parties | Bemis v. Guirl Drainage Company et al |
| Court | Indiana Supreme Court |
From Clay Circuit Court; John M. Rawley, Judge.
Action by James Bemis against the Guirl Drainage Company and others to enjoin proceedings for drainage construction. From a judgment for defendants, the plaintiff appeals.
Affirmed.
A. W Knight, for appellant.
McNutt Hutchison & Shattuck, for appellees.
Appellant sued in the lower court to enjoin proceedings instituted under the act approved March 10, 1913 (Acts 1913 p. 433, §§ 8233b-8233 Burns 1914), to construct and maintain a system of drainage and reclamation of lands from floods, consisting of a levee, seven drains, and two flood gates. When the suit was brought the proceedings had reached a stage where the county commissioners had appointed appraisers as they were authorized to do by § 13 (§ 8233n Burns 1914) of the act. The drainage company, the individual incorporators of it, the petitioners for the appointment of appraisers, the appraisers and the board of commissioners were all made parties defendant. A several demurrer by each of these defendants to appellant's complaint was sustained and, upon his refusal to plead further, the court rendered judgment against him for costs. From this judgment he appeals and assigns as error the ruling of the court on demurrer to his complaint.
The complaint alleged in substance that certain of the appellees took steps under the act of 1913, supra, to organize the appellee drainage company and thereafter through its board of directors filed with the auditor of Clay County a petition addressed to the board of commissioners of the county for certain reclamation and drainage work which the company was organized to make. This petition was set out in the complaint and averred the organization of the company, described the location and character of each particular part of the proposed system of reclamation and drainage, averred that it was all in Clay County, that the petitioners whose names were signed to it constituted a majority of the owners of the land to be protected, affected, drained, reclaimed and improved and that they were also the owners of two-thirds in acres of all of such lands and that the improvement would be of public utility; it prayed the board to appoint appraisers according to the law to inquire into and determine the public utility of the proposed work, to assess benefits and damages which might result from the construction of the work and to assess damages for all appropriations which might be necessary to be made in the process of construction of the work. The complaint then alleged that the petition was presented to the board on July 18, 1913, while it was in regular session and that the board acting thereon entered a finding to the effect that, having heard the evidence, it found that the facts set out in the petition were true and that appraisers ought to be appointed, and an order appointing appellees Weber, Cullen, and Weideroder, who were asserted to be qualified, as appraisers to determine the public utility of the proposed work and to assess benefits and damages which would result from the proposed work and the appropriations therefor; that these persons named as appraisers accepted the appointment; that the appellee drainage company, the incorporators and petitioners were about to notify the appraisers to meet and begin their work; that appellant was a resident taxpayer and owned land in the district affected by the proposed work which was in a high state of cultivation, all capable of being tilled and valuable for farming purposes and of such elevation that it was not affected by flood waters; that the proposed work would destroy numerous natural and artificial watercourses which then adequately drained the land of appellant and others into Eel River, and many of which were public ditches constructed under the laws of the State and paid for by assessment of the lands of appellant and others; that the plan proposed contemplated the diversion and union of certain of these existing drains into one artificial outlet alleged to be wholly inadequate to carry the water during times of ordinary and especially during times of heavy rainfall, and that thereby the flow of the water would be impeded and backed upon the lands of appellant whereby he would be irreparably damaged in numerous particulars alleged; that the proposed work would cause a public nuisance in that it would cause more than 3,000 acres of land adequately drained, under cultivation, and densely populated to become marshy and unhealthy during a large part of each year; that appellees would, unless restrained by the court, do all the acts contemplated by law, the act of 1913, supra, toward the completion of the proposed work and would declare the improvement to be of public utility, assess benefits and damages, issue bonds for money to do the work and place the amounts of the benefits assessed on the tax duplicates for collection as other taxes are collected; that thereby a cloud would be cast on appellant's title and irreparable damage would result to him by the construction of the work as averred; that the act of 1913 in question makes no provision for a valid assessment and payment of damages which appellant would suffer; that it makes no provision for notice to appellant or other persons of a hearing on the question of the public utility of the proposed improvement; that it makes no provision for notice on the hearing of the petition and appointment of appraisers; that appellant was not made a party to the proceeding but that the same was ex parte and that appellant is denied due process of law and his day in court by the law; that the proposed work will not be of public utility but a private enterprise for the sole purpose of benefiting the lands of the incorporators and petitioners; that the act of 1913 contravenes numerous provisions of the State and Federal Constitutions and is wholly invalid and that appellees are therefore proceeding and threatening to proceed without authority of law. A temporary restraining order and a perpetual injunction was the prayer of the complaint.
The grounds of demurrer were that the court had no jurisdiction of the appellees, or of the subject-matter of the action and that the complaint did not state facts sufficient to constitute a cause of action.
Counsel for appellant in the points stated in his brief asserts with the broadest generality that the act in question violates many constitutional provisions. We have found great difficulty in finding in appellant's brief the specific application of these general assertions of unconstitutionality to particular provisions of the act. So far as we are able to discover constitutional objections to particular provisions of the act, they are given consideration.
The first of these in logical order is the claim that the title of the act is multifarious and at the same time not broad enough to cover the tribunal provided in the body of the act for determining the question of public utility and for assessing benefits and damages and that the act is therefore rendered void by § 19, Art. 4 of our State Constitution which provides that every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title. A glance at the title shows at once that this claim is unfounded. State v. Closser (1913), 179 Ind. 230, 99 N.E. 1057, and cases there cited.
The contention is presented that the act is, in certain of its material and essential provisions, in contravention of the clauses of the 5th amendment to the Federal Constitution forbidding that one be deprived of property without due process of law and the taking of private property for public use without just compensation. This amendment is not a limitation on State legislation but restricts legislation by Congress only. Barrett v. State (1911), 175 Ind. 112, 93 N.E. 543, and cases there cited; School Town of Windfall City v. Somerville (1914), 181 Ind. 463, 104 N.E. 859; Fallbrook Irrigation Dist. v. Bradley (1896), 164 U.S. 112, 158, 17 S.Ct. 56, 41 L.Ed. 369.
It is further claimed, the act violates the provisions giving the constitutional guaranties of due process of law for the protection of personal and property rights found in the 14th amendment of the Federal Constitution and in § 12 of the Bill of Rights (Art. 1, § 12), of our State Constitution. And in connection with this claim it is contended that the act also infringes that provision of the State Constitution found in § 21 of the Bill of Rights (Art. 1, § 21, Constitution), that no man's property shall be taken by law without just compensation, and, except in case of the State, without such compensation first assessed and tendered. The constitutional guaranties of personal and property rights are not absolute, for all private rights however fundamental are held and enjoyed by individuals as members of organized society subject to the paramount right of the State, the embodiment of society, to appropriate them or modify them when actual necessity or the public welfare requires it. This dominant right of the State is ordinarily classified under three heads, the police power the power of eminent domain and the taxing power. They are all incident to the sovereignty of the State and in the structure of government are committed to the legislative department. The police power controls and regulates the enjoyment of personal and property rights on the principle that they must be so exercised as to permit an equal enjoyment in others. It is the power to legislate for the common welfare and under it, to that end, persons and property are subjected to restraints and...
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