Board of Directors of Alfalfa Irrigation Dist. v. Collins

• Decision Date: 19 November 1895
• Parties: BOARD OF DIRECTORS OF ALFALFA IRRIGATION DIST. v. COLLINS ET AL.
• Court: Nebraska Supreme Court

46 Neb. 411

64 N.W. 1086

BOARD OF DIRECTORS OF ALFALFA IRRIGATION DIST.

v.COLLINS ET AL.

Supreme Court of Nebraska.

Nov. 19, 1895.

Syllabus by the Court.

1. The term “due process of law,” as employed in section 3 of article 1 of the constitution of this state, relates primarily to the remedy for wrongs to persons and property, rather than to matters of substantive law.

2. The act approved March 26, 1895, known as the “District Irrigation Law,” provides that, when bonds are authorized by a vote of any irrigation district, application may be made to the district court of the county in which such district or part thereof is situated, for an order confirming and approving the same. At the time set for hearing, and after notice by publication to all concerned, any person interested in said district may appear and resist such application; and the court may examine into and determine all questions pertaining to the organization of the district, as well as the regularity of the voting and issuing of such bonds. Held not to contemplate the taking of property without due process of law, by means of taxation, within the prohibition of the state or federal constitution.

3. Irrigation districts organized under our laws are public rather than municipal corporations, and their officers are public agents of the state.

4. While it is within the province of the judiciary to declare invalid acts evidently not designed to subserve public interest, if the subject-matter of legislation be such that there is any doubt of its character, or if, by any reasonable construction, it can be held to be for the welfare of the public, the will of the legislature should prevail over any mere doubt of the court.

5. The district irrigation law does not conflict with the constitution by authorizing the taking of property for private use only.

6. The power of taxation is an attribute of sovereignty, having its source in the necessities of organized society; the limits of its exercise depending, in the absence of express limitations upon such power, upon the exigencies of the public. That power has been committed by the people to the discretion of the legislature; and, for an abuse of the trust thus imposed, the remedy is by appeal to the people themselves, in the manner prescribed by law.

7. The district irrigation law is not unconstitutional on the ground that the power thereby conferred upon districts to levy taxes is without limitation.

8. Nor does said act conflict with the constitution on the ground that the effect thereof is to confer legislative powers upon county boards.

9. The provision of section 1 of article 9 of the constitution for uniform taxation relates to the revenue required for the general purposes of state and municipal government only, and has no application to taxes or assessments levied for local improvements.

10. Corporations, both municipal and private, may, in the absence of limitations express or implied, as an incident to their general corporate powers, adopt and use a common seal.

11. Larson v. Dickey, 58 N. W. 167, 39 Neb. 463, and Dickey v. Paterson (Neb.) 64 N. W. 244, distinguished.

Appeal from district court, Keith county; Neville, Judge.

Proceedings by the board of directors of Alfalfa irrigation district against M. S. Collins and others. From the decree rendered, defendants appeal. Affirmed.T. Fulton Gantt and J. R. Brotherton, for appellants.

G. W. Shields, for appellees.

POST, J.

This was a proceeding by the appellees before the district court for Keith county, under the provisions of section 59 et seq. of the act approved March 26, 1895, known as the “District Irrigation Law,” seeking a confirmation of steps resulting in the formation of the Alfalfa irrigation district, and the issuance thereby of certain bonds intended to promote the general purposes of the act. The appellants, who are taxpayers within said district, filed an answer, to which more particular reference will hereafter be made, but which puts in issue substantially all the allegations of the petition. A decree having been entered in accordance with the prayer of the petition, the cause was removed into this court by appeal. The objections urged by the appellants in this court are substantially as follows: (1) The district irrigation law conflicts with section 3 of article 1 of the constitution--First, since it confers upon county boards legislative powers in the creation of corporations; second, because it authorizes the levy by irrigation districts of taxes upon real estate without limitation. (2) Said act conflicts with sections 3 and 13 of article 1 of the constitution of this state, and with section 1 of the fourteenth amendment of the constitution of the United States, by authorizing the appropriation of the property of nonresidents without due process of law. (3) It conflicts with the constitution of the United States by authorizing the appropriation of private property without the owner's consent to a mere private use. (4) It violates section 1 of article 9 of the constitution of this state, by providing a system of taxation which excludes from its operation all personal property within the several districts. (5) The bonds in question are invalid for the reason that they are required to be attested by a seal, whereas the said act makes no provision for the procuring or use by such districts of an official seal. (6) Said district was not legally organized. (7) The issuance of said bonds was not authorized by the requisite vote, and the election mentioned in the petition was accordingly illegal and void.

The first, second, third, and fourth objections challenge the validity of the district irrigation law, and may, for convenience, be considered together. It should, as preliminary to an examination of the subject, be remarked that the act in question is in all essential features copied from the district irrigation law of California, in which state it had, by decisions hereafter cited, received a settled construction long before its adoption by us, and its enactment in this state must be construed as a legislative approval of the interpretation there given it. Clark v. Improvement Co. (Neb.) 64 N. W. 239;Paxton & Hershy Irrigating Canal & Land Co. v. Farmers' & Merchants' Irrigation & Land Co. (Neb.) 64 N. W. 343. It was held in the cases cited that the reclamation of the arid lands of the state is, in a constitutional sense, a public use, to promote which the legislature may authorize the acquiring by condemnation of the right of way over private property by irrigating companies. It is not necessary at this time to examine the grounds upon which those cases rest, as the doctrine there asserted is not assailed in the able argument of counsel for appellants. It is said, however, that the district irrigation law was not involved in those cases, and that the principle by which they are controlled can have no application to the case at bar. Since we are unable to concede that proposition, an examination of the act mentioned and some of the cases to which reference has been made will not be out of place in this connection.

The act provides for the creation of irrigation districts comprising property susceptible of irrigation from the same source and by means of the same system of works. It requires a petition to be filed with the county board, signed by a majority of the resident freeholders who are qualified electors, and who own a majority of the whole number of acres of land belonging to resident electors, particularly defining the boundaries of the proposed district. The county board may, on the final hearing of the petition, and after notice thereof to all parties interested, define the boundaries, making such changes thereof as may be deemed proper, but including therein no lands which are not susceptible of irrigation by the same system. The question is then, at a special election, submitted to the electors of the proposed district, who are also the owners of real estate therein. Upon the adoption of the proposition, a record thereof is to be filed in the office of the county clerk of each county in which any portion of the land included in said district is situated, and immediately thereafter the county board shall call a special election, at which there shall be chosen a treasurer, an assessor, and three directors. Provision is made for regular meetings of the directors, whose duty it is to manage and conduct the business and affairs of the district, to make and execute all necessary contracts, establish equitable by-laws, rules, and regulations for the distribution and use of water, and to perform all such acts as may be necessary to fully carry out the purposes of the act. Power is also conferred upon said board to acquire by purchase or condemnation all lands, waters, and other property necessary for canals and reservoirs and aqueducts, and to take conveyances therefor. Provision is made for the issuing of the bonds of the district when authorized by a vote of a majority of the electors having the qualifications in said act prescribed, not exceeding the estimated cost of ditches and other necessary improvements, and for the time and manner of payment thereof. All real estate within the district is to be listed and assessed by the district assessor, and the board of directors, after equalizing the assessment in the manner therein provided, are required to levy the taxes necessary to pay interest and principal of all bonds previously issued. Upon the issuance of any bonds, whether the same shall have been sold or not, the directors of the irrigation districts by which they were authorized may present to the district court of the county in which such district, or part thereof, is situated, a petition praying that all proceedings relating to said bonds may be examined, approved, and confirmed. Upon the hearing of such application, after notice to all persons interested, the court is authorized to examine into and...