Board of Directors of Alfalfa Irrigation District v. Collins
| Decision Date | 19 November 1895 |
| Docket Number | 8060 |
| Citation | 64 N.W. 1086,46 Neb. 411 |
| Parties | BOARD OF DIRECTORS OF ALFALFA IRRIGATION DISTRICT, APPELLEE, v. M. S. COLLINS ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Keith county. Heard below before NEVILLE, J.
AFFIRMED.
T Fulton Gantt and J. R. Brotherton, for appellants, cited Cooley, Constitutional Limitations [4th ed.], sec. 117; Cooley, Taxation [1st ed.], 48; Harvard v. St. Clair & Monroe Levee & Drainage Co., 51 Ill. 130; Cypress Pond Draining Co. v. Hooper, 2 Met. [Ky.], 350; Bradley v. Fallbrook Irrigation District, 68 F. 948; Clother v. Maher, 15 Neb. 6; Larson v. Dickey, 39 Neb. 463.
G. W Shields, contra, cited: Olmstead v. Camp, 33 Conn. 532; Todd v. Austin, 34 Conn. 84; Gammell v. Potter, 6 Iowa 548; Venard v. Cross, 8 Kan. 260; Harding v. Funk, 8 Kan. 315; Holyoke v. Lyman, 15 Wall. [U. S.], 507; Boston & Roxbury Mill Corporation v. Newman, 12 Pick. [Mass.], 477; Hazen v. Essex Co., 12 Cush. [Mass.], 475; Miller v. Troost, 14 Minn. 282; Newcomb v. Smith, 1 Chand. [Wis.], 71; Fisher v. Horicon Iron & Mfg. Co., 10 Wis. 351*; Dean v. Davis, 51 Cal. 410; People v. Reclamation District, 53 Cal. 347; People v. Williams, 56 Cal. 647; Hoke v. Perdue, 62 Cal. 546; People v. La Rue, 67 Cal. 527; Dayton Gold & Silver Mining Co. v. Seawell, 11 Nev. 394; Tide Water Co. v. Coster, 18 N.J.Eq. 521; In re Drainage of Lands, 35 N.J.L. 497; In re Commissioners to Drain, 39 N.J.L. 434; Talbot v. Hudson, 16 Gray [Mass.], 423; Rutherford v. Maynes, 97 Pa. 78; Hagar v. Reclamation District, 111 U.S. 701; Mobile County v. Kimball, 102 U.S. 691; Louisiana v. Pillsbury, 105 U.S. 278; Turlock Irrigation District v. Williams, 18 P. [Cal.], 379; Central Irrigation District v. De Lappe, 21 P. [Cal.], 825; In re Bonds of Madera Irrigation District, 28 P. [Cal.], 675; Board of Directors v. Peterson, 29 P. [Wash.], 995; Lux v. Haggin, 69 Cal. 255; People v. Salomon, 51 Ill. 50; Stockton & V. R. Co. v. City of Stockton, 41 Cal. 147; Wynehamer v. People, 13 N.Y. 378; Wellington, Petitioner, 16 Pick. [Mass.], 87; Erie & N. E. R. Co. v. Casey, 26 Pa. 287; Powell v. Commonwealth, 114 Pa. 265; Turner v. Althaus, 6 Neb. 54; Jenal v. Green Island Draining Co., 12 Neb. 163; Darst v. Griffin, 31 Neb. 668; Dakota County v. Cheney, 22 Neb. 437; Welton v. Dickson, 38 Neb. 767; In re House Roll No. 284, 31 Neb. 506; Brennan v. City of Weatherford, 53 Tex. 330; Porter v. Androscoggin & K. R. Co., 37 Me. 349; Tenney v. East Warren Lumber Co., 43 N. H., 343.
This was a proceeding by the appellee 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 1, article 3, of the constitution, (1) since it confers on county boards legislative powers in the creation of corporations; (2) because it authorizes the levy by irrigation districts of taxes upon real estate without limitation.
2. Said act conflicts with sections 3 and 21, 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 non-residents 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, 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. Cambridge & Arapahoe Irrigation & Improvement Co., 45 Neb. 798, 64 N.W. 239; Paxton & Hershey Irrigating Canal & Land Co. v. Farmers' & Merchants Irrigation & Land Co., 45 Neb. 884, 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, 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 districts is to be listed and assessed by the district assessor, and the board of directors, after equalizing the assessment in the manner therein provided, is 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 determine the legality of, and approve all of, the proceedings relating to or which may affect the validity of said bonds.
The foregoing synopsis is necessarily incomplete, but it serves to illustrate the general scope and purpose of the measure under consideration.
The validity of this species of legislation was first called in question in Turlock Irrigation District v. Williams 76 Cal. 360, 18 P. 379, in which it was held, under constitutional provisions substantially similar to ours, that the districts contemplated by the statute of that state are quasi-public corporations in the sense that the purpose of their organization is the general public benefit. It is further said that...
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Board of Directors of Alfalfa Irrigation Dist. v. Collins
... ... 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 ... ...