SMITH
J.
A brief
statement will suffice to indicate the points of law involved
in these appeals. Plaintiffs brought their action against the
county treasurer, county commissioners, and county drain
commissioner of Yellowstone county, to recover certain moneys
paid as taxes in the year 1907, under protest, and to
restrain the collection of similar taxes in subsequent years.
These taxes for 1907 were collected by virtue of chapter 106,
p. 254, Sess. Laws 1905, now found, as amended by the Laws of
1907, under title 11, Rev. Codes, known as the "Drainage
District Law." The act was again amended in 1909, but
neither amendment is involved in this case, the taxes, the
collection of which is sought to be restrained, having been
levied, by virtue of the act of 1905, to be collected in
three installments. The cause was tried to the district court
of Yellowstone county, aided by a jury. Certain special
findings were made by the jury, and a general verdict was
returned in favor of the plaintiffs. The court set aside the
general verdict, but adopted the special findings, concluded
as matter of law that the defendants were entitled to
prevail, and entered judgment accordingly. From that
judgment, and an order denying a new trial, the plaintiffs
have appealed.
Appellants
preface their argument thus: "The several errors
assigned, calling in question the validity of the action of
the court below, may well be considered together as a whole.
They are each and all based upon the proposition that the act
of the Legislative Assembly, under which the drain in
question in this case was constructed, is inoperative and
void, for the reason that the provisions thereof, when tested
by the principles of the settled law, are incapable of being
legally complied with and carried into operative effect, and
for the further reason that the act is in conflict with, and
violative of, the Constitution of the state of Montana."
Section 11, art. 12, of the state Constitution, reads as
follows: "Taxes shall be levied and collected by general
laws and for public purposes only. They shall be uniform upon
the same class of subjects within the territorial limits of
the authority levying the tax." Section 14, art. 3,
Const., reads: "Private property shall not be taken or
damaged for public use without just compensation having been
first made to or paid into court for the owner." Section
27, art. 3, reads: "No person shall be deprived of life,
liberty or property without due process of law." Section
1 of the so-called "Drainage District Law" reads as
follows: "That drains may be located, established,
constructed and maintained and drains and water courses may
be cleaned out, straightened, widened, deepened and extended,
whenever the same shall be conducive to the improvement or
reclamation of agricultural lands, public health, convenience
or welfare."
In the
case of Summers v. Sullivan, 39 Mont. 42, 101 P.
166, this court said: "The legislative authority
generally to enact these drainage statutes is derived from
the police power, the power of eminent domain, or the taxing
power. The proceedings under our statute are essentially
those of eminent domain; and if, in obtaining a right of way
for a drain across the lands of these plaintiffs, their lands
will be depreciated in value by reason of the impairment of
their water rights, this is one of the elements to be
considered in assessing damages to them. The proceeding, in
principle, is not different from the proceeding to establish
a public road." In the Summers Case the
constitutionality of the statute was not questioned. As was
therein indicated, the proceedings under the drainage
district law, in so far as they relate to the method of
acquiring a right of way for the ditch, are essentially those
of eminent domain.
The
following authorities are called to our attention by counsel
for the appellants, in support of their contention that the
law is unconstitutional: "Independently of express
authority given by the Constitution, a state Legislature
cannot authorize the taking of private property for a merely
private use, even upon making compensation. The doctrine of
eminent domain is that private property may be appropriated
to public use upon compensation being made, but it cannot be
taken for strictly private purposes without the consent of
the owner, whether compensation is made or not. The assertion
of a
right on the part of the Legislature to take the property of
one citizen and transfer it to another, even for a full
compensation, where the public interest is not promoted
thereby, is claiming a despotic power, and one inconsistent
with every just principle and fundamental maxim of a free
government." 15 Cyc. 578. "It is well settled that
the Legislature has no power to authorize the taking of
private property for a private use, without the owner's
consent." Wisconsin Water Co. v. Winans, 85
Wis. 26, 54 N.W. 1003, 20 L. R. A. 662, 39 Am. St. Rep. 813.
In the
case of In re Theresa Drainage District, 90 Wis.
301, 63 N.W. 288, the court said: "It is settled law in
this state that private property can be taken in invitum for
a public use only. For a private use it cannot be taken. ***
It is also settled that to dig ditches or drains across the
land of private owners, under an apparent legislative
authority, is a taking of the lands. *** The question
presented for decision is whether the digging of the ditches
and drains, and the construction of the levees and other
works contemplated by the statute, is for a public use. The
provision of the statute is, 'If it shall appear to the
court that the proposed drain or drains, ditch or ditches,
levee or levees, or other works, is or are necessary or will
be useful for the drainage of the lands proposed to be
drained thereby, for agricultural, sanitary or mining
purposes,' the court shall appoint commissioners. ***
There is in the entire statute no expression or intimation
that it was any part of the consideration upon which the
improvement should be authorized that it should be either
necessary or desirable to promote any public interest,
convenience, or welfare. No doubt, such an improvement may be
useful to some, or perhaps many, private owners of land, by
way of increasing the usefulness and value of their lands.
But that is merely a private advantage. It interests the
public only indirectly and remotely, in the same way and
sense in which the public interest is advanced by the thrift
and prosperity of individual citizens. *** Some home or homes
might be made more cheerful or more healthful. But one
man's property cannot be taken to make another man's
home more cheerful or healthful. It is only when it will make
the homes of the public more healthful that any man's
property can be taken for 'sanitary purposes.' But it
is urged that the term 'sanitary purposes'
comprehends and imports the idea of the public health. If so,
it might save this statute." The court then proceeds to
determine that the words "sanitary purposes" do not
indicate that the use intended was a public one, and the
statute is declared entirely invalid.
In
the Matter of Tuthill, 163 N.Y. 133, 57 N.E. 303, 49 L.
R. A. 781, 79 Am. St. Rep. 574, the court said: "It is
an ancient principle, which entered into our social compact,
that the use for which private property may be taken must be
a public one, whether the taking be by the exercise of the
right of eminent domain, or by that of taxation. The
sovereign power is incapable of conferring any right to
interfere with private property except it be needed for
public objects. To take land for any other than a public use,
to take it from one citizen, and to transfer it to another,
even for full compensation, would be to violate the contract
by which the land was originally granted by the government.
*** The state Constitution, from the beginning, by
authorizing the appropriation of private property for public
use, impliedly declared that for any other use private
property should not be taken from one and applied to the
private use of another." The court then decided that the
policy of the state of New York had never sanctioned drainage
proceedings such as were involved in the case under
consideration, and held the law void. The learned judge who
wrote the opinion further said: "But, lacking public
ends, I find nothing in the past political history of the
state which would justify laws by which a citizen may be
authorized to take the property of his neighbor, by the
exercise of the right of eminent domain, for a purpose which
is primarily for his private benefit; although, incidentally,
of such possible benefit generally as any improvement of
agricultural lands would result in."
In the
case of Kinnie v. Bare, 68 Mich. 625, 36 N.W. 672
the Supreme Court of Michigan said, relative to a drainage
law: "Such proceedings can be authorized by the
Legislature only under the police power of the state. Drain
laws which take from the citizen his private property against
his will can be upheld solely upon the ground that such
drains are necessary for the public health. They proceed upon
the basis that low, wet, and marshy lands generate malaria,
causing sickness and danger to the health and life of the
people; that when they...
