Booth v. Groves

• Decision Date: 08 March 1927
• Citation: 255 P. 638,43 Idaho 703
• Parties: W. T. BOOTH, Appellant, v. C. A. GROVES, LAFE BOONE, O. G. F. MARKHUS and ETHEL T. CLARK, as Tax Collector of Ada County, State of Idaho, Respondents
• Court: Idaho Supreme Court

255 P. 638

43 Idaho 703

W. T. BOOTH, Appellant, v. C. A. GROVES, LAFE BOONE, O. G. F. MARKHUS and ETHEL T. CLARK, as Tax Collector of Ada County, State of Idaho, Respondents

Supreme Court of Idaho

March 8, 1927

DRAINAGE DISTRICTS-SPECIAL ASSESSMENT-BENEFIT TO PROPERTY-CONSTITUTIONAL LAW-DENIAL OF DUE PROCESS-DETERMINATION OF BENEFITS.

1. Levy of one dollar per acre against lands of drainage district under C. S., sec. 4505, held not within Const., art. 7, secs 2 and 5, but is a special assessment for improvement purposes, and can be justified, if at all, only as special assessment.

2. Levy of special assessment for improvement purposes is not justified, unless benefits accrue to property, and, in order that such assessment may be levied and collected, there must be a determination of benefits accruing.

3. C S., sec. 4505, authorizing uniform tax on land of proposed drainage district for purpose of paying expenses without any determination as to benefits, held in violation of Const art. 1, secs. 13, 14, and Const. U.S. , Amend. 14, as depriving persons of property without due process of law; there being no provision for determination of benefits under C. S., secs. 4495-4499, providing preliminary steps for creation of district.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Raymond L. Givens, Judge.

Action to enjoin collection of assessment on lands in a drainage district. Judgment for defendants. Reversed and remanded.

Reversed and remanded, with instructions. Costs to appellant. Petition for rehearing denied.

J. B. Eldridge, for Appellant.

There is no provision under C. S., sec. 4405, for giving notice nor for an opportunity provided for a land owner to contest the assessment. The assessment levied under the section without notice is void. (Neal v. Van Sickel, 72 Neb. 105, 100 N.W. 200.)

C. S., sec. 4505, and the proceedings had thereunder are invalid, as being in contravention of Idaho Const., art. 1, secs. 13 and 14, art. 7, secs. 2 and 5, and the 14th amendment to the federal constitution. (Argyle v. Johnson, 39 Utah 500, 118 P. 487; Beebee v. Magoun, 122 Iowa 94, 101 Am. St. 259, 97 N.W. 986; Smith v. Peterson, 123 Iowa 672, 99 N.W. 552; Ft. Dodge etc. Co. v. Ft. Dodge, 115 Iowa 568, 89 N.W. 7; Tyler Township v. State, 83 Ind. 563; Campbell v. Dwiggins, 83 Ind. 473; Hagar v. Reclamation Dist. No. 108, 111 U.S. 701, 4 S.Ct. 663, 28 L.Ed. 569; Turpin v. Lemon, 187 U.S. 51, 23 S.Ct. 20, 47 L.Ed. 70.)

"Where no benefits will accrue, no assessment can be made." (Elliott v. McCrea, 23 Idaho 524, 130 P. 785.)

P. E. Cavaney, for Respondents.

It is a cardinal point of statutory construction that in case of doubt as to the constitutionality of a statute, the statute must be sustained. (Grice v. Clearwater T. Co., 20 Idaho 70, 117 P. 112.) And it is also a cardinal rule of statutory construction that statutes should be construed liberally with the views to accomplish their aims and purposes. (Parsons v. Wrble, 21 Idaho 695, 123 P. 638.)

The drainage statute is constitutional and not in derogation of the fourteenth amendment to the constitution of the United States. (Houck v. Little River Drainage Dist., 248 Mo. 373, 154 S.W. 739; affirmed by U.S. supreme court, 239 U.S. 254, 36 S.Ct. 58, 60 L.Ed. 266; Branson v. Bush, 251 U.S. 182, 40 S.Ct. 113, 64 L.Ed. 215; Miller & Lux v. Sacramento & S. J. Drain. Dist., 256 U.S. 129, 41 S.Ct. 404, 65 L.Ed. 869; Hunt v. United States, 256 U.S. 706, 41 S.Ct. 537, 66 L.Ed. 163; Valley Farms Co. of Yonkers v. County of Westchester, 261 U.S. 155, 43 S.Ct. 261, 67 L.Ed. 585; Thomas v. Kansas City So. Ry. Co., 261 U.S. 481, 43 S.Ct. 440, 67 L.Ed. 759; Miheim v. Moffat T. I. Dist., 262 U.S. 710, 42 S.Ct. 694, 67 L.Ed. 1195; House v. Road Improvement Dist. No. 2 and No. 5, 266 U.S. 175, 45 S.Ct. 60, 69 L.Ed. 81; Kansas City Ry. Co. v. Road Imp. Dist. No. 3, 266 U.S. 379, 45 S.Ct. 136, 69 L.Ed. 142; Northwestern Imp. Co. v. John Day Irr. Dist., 286 F. 294; Kramer v. Standing Pine Dr. Dist., 117 Miss. 387, 78 So. 5; Northern P. R. Co. v. Pierce County, 51 Wash. 12, 97 P. 1099, 23 L. R. A., N. S., 286; Orr v. Allen, 245 F. 486; Reclamation Dist. No. 730 v. Hershey, 160 Cal. 692, 117 P. 904; Oliver v. Monona County, 117 Iowa 43, 90 N.W. 510; Butts v. Monona County, 100 Iowa 74, 69 N.W. 284.)

TAYLOR, J. Wm. E. Lee, C. J., and T. Bailey Lee, J., and Terrell, District Judge, concur. Budge, J., dissents. Givens, J., disqualified.

OPINION

TAYLOR, J.

This action is brought by plaintiff, on behalf of himself and others similarly situated, against defendants Groves, Boone and Markhus, commissioners of Drainage District No. 3 in Ada county, and Ethel T. Clark, treasurer and tax collector of the county, to enjoin the collection of a tax or assessment of one dollar per acre levied by the commissioners of the district upon lands of plaintiff and others, under C. S., sec. 4505. A demurrer was sustained to the complaint, and this appeal is from the judgment rendered for defendants.

The allegations of the complaint admitted by the demurrer, are that some of the lands in the district are of a value as high as $ 2,000 per acre, while others are as low in value as $ 100 per acre, and the levy was a flat levy of one dollar per acre without regard to valuation; that "much of the land of plaintiffs are high and dry lands and do not, and cannot, contribute anything to the seeping of the wet or low lands, and do not and never will need drainage; that said lands owned by plaintiffs will not receive and cannot receive any benefits whatsoever from said proposed drainage system or district; that said pretended levy of said assessment was levied without notice to plaintiffs or either of them, and that none of plaintiffs had any knowledge of said pretended levy of said tax or assessment until long after the same had pretended to be levied."

Plaintiff contends that C. S., sec. 4505, and the proceedings thereunder, are in contravention of secs. 2 and 5 of art. 7, and secs. 13 and 14 of art. 1 of the constitution of Idaho, and the 14th amendment to the constitution of the United States.

C. S., secs. 4495 to 4499, provide the preliminary steps for the creation of a drainage district upon petition setting forth the object of the organization, which shall designate temporary boundaries, approximately the number of acres therein, a description of the proposed system, and the fact that the establishment of such district and system will be conducive to the public health, convenience and welfare, or increase the public revenue, and that the establishment of such district and system and reclamation is a proper and advantageous method of accomplishing the relief sought. Such petition must be signed by owners of at least one-fifth of the acreage in the proposed district.

C. S., sec. 4497, requires the judge of the district court to set a time for hearing of the petition on notice published for at least three successive weeks in some newspaper in the county; and C. S., sec. 4498, provides that any person or corporation interested may appear on the day set and "make objections to the organization and incorporation of said district, but such objections shall be limited to determining whether or not the organization of such drainage district is a proper and advantageous method of accomplishing the reclamation and protection of the swamped, bogged or waterlogged lands, or lands subject to overflow therein, and whether or not there is a reasonable probability that the objects sought by the formation of the district may be accomplished, and whether or not said proposed drainage system will be conducive either to the public health, welfare or convenience or increase the public revenue; and at the hearing the court shall hear and consider such evidence only as may be presented for or against the petition or objections thereto."

This section further provides that the court shall make findings and define the temporary boundaries of the district, describing the lands included by township, range and section only.

Under C. S., sec. 4499, the court, if it finds the "proposed drainage system to be conducive either to the public health, welfare or convenience, or will increase the public revenue, or be of special benefit to the majority in acreage of the lands included in said boundaries, shall declare said district duly organized, and to be known as drainage district No. "; and a copy of this order declaring the district to be organized shall be filed in the office of the Secretary of State, and from and after the date of such filing, the organization shall be deemed complete.

C. S., sec. 4500, provides for the appointment and qualification of three drainage commissioners. C. S., sec. 4505, against which this attack is directed, authorizes the commissioners to "levy a uniform tax of such an amount as is deemed necessary not to exceed $ 1 per acre upon each acre of land within such district to be used for the purpose of paying expenses incurred or to be incurred in organizing such district, making surveys of the same and apportioning costs and damages, and to apply on the expenses necessary to be incurred before said board shall be empowered by subsequent sections to provide funds to pay the total cost of works and improvements of the district"; and that "Such tax shall be due and payable as soon as assessed and if not paid within 60 days thereafter the same shall become delinquent. It shall become a lien on the land against which it is assessed, and shall be collected in the same manner as other taxes."

The section further provides that "In case the sum received from such assessment exceeds the total cost of items for which the same has been levied, the surplus shall be placed...