O'Brien v. Schneider

• Decision Date: 15 February 1911
• Docket Number: 16,956
• Citation: 129 N.W. 1002,88 Neb. 479
• Parties: SAMUEL O'BRIEN, APPELLANT, v. RUDOLPH B. SCHNEIDER ET AL., APPELLEES
• Court: Nebraska Supreme Court

129 N.W. 1002

88 Neb. 479

SAMUEL O'BRIEN, APPELLANT, v. RUDOLPH B. SCHNEIDER ET AL., APPELLEES

No. 16,956

Supreme Court of Nebraska

February 15, 1911

APPEAL from the district court for Dodge county GEORGE H. THOMAS JUDGE. Affirmed.

AFFIRMED.

F. W Button and I. L. Albert, for appellant.

Courtright & Sidner, contra.

ROOT J. FAWCETT, J., not sitting.

OPINION

ROOT, J.

This is an action in equity to restrain the directors of a drainage district from levying special assessments upon the plaintiff's land, from collecting any such assessments, and from acting as officers of the district. The defendants prevailed, and the plaintiff appeals.

The statute under which the drainage district was formed is chapter 153, laws 1907 (Comp. St. 1907, ch. 89, art. V). The plaintiff contends that the act is unconstitutional and void. Considerable of the argument is addressed to propositions determined in State v. Hanson, 80 Neb. 724, 738, 115 N.W. 294. The principles announced in that case will not be reconsidered, but we will pass to the subjects not presented in that case but urged in the instant one as decisive of the invalidity of the law.

Section 11 of the act provides that the board with expert assistance shall by a system of units apportion to every lot or forty-acre tract which will be benefited by the proposed improvement its proportion of benefits. That is to say, to the tracts least benefited one unit shall be apportioned, and to every tract receiving a greater benefit a greater number of units or fractions of units shall be apportioned according to the benefits to be received. A notice shall be given of the time and place when and where the directors will meet for the purpose of equalizing said apportionment, at which time any person interested may object thereto. If any person feels aggrieved by an order made at the hearing, he may appeal to the district court, where the issue is to be heard in a summary manner, and from its judgment an appeal will lie to this court. The distribution of benefits when finally adjusted shall continue as the basis upon which assessments will be made to pay all expenses and costs incident to the organization and maintenance of the district and the construction and repair of improvements therein, except in case a change in plans or an extension or enlargement of the improvements requires a different apportionment. In that event a new apportionment shall be made. Counsel argue that this procedure is vicious, and that the limit of assessments under this statute is not the special benefits accruing to the land, but the aggregate of expenses and expenditures. No system of assessment can bring about absolute equality or attain exact justice among property owners or taxpayers. The best that can be expected is a substantial approximation of burdens according to benefits, and the legislature is vested with great discretion in providing the methods by which that approximation shall be attained. Chadwick v. Kelley, 187 U.S. 540, 47 L.Ed. 293, 23 S.Ct. 175; City of Findlay v. Frey, 51 Ohio St. 390, 38 N.E. 114; Allen v. Drew, 44 Vt. 174; Mason v. Spencer, 35 Kan. 512, 11 P. 402. Statutes which provide for an apportionment of benefits preceding the construction of improvements to be used as the basis upon which all assessments shall be made are not void for the reason that the property owner is not permitted to contest the amount of every levy. He is required to pay no more than his just proportion of the cost and expense of making and maintaining the improvement, and the directors, by their first hearing and apportionment, acquire jurisdiction to make the subsequent levies. People v. Chapman, 127 Ill. 387, 19 N.E. 872. Neal v. Vansickel, 72 Neb. 105, 100 N.W. 200, does not hold to the contrary. We there condemned a statute which provided for a "level assessment" of not to exceed a definite sum per acre. The opinion recognizes the right, although it doubts the wisdom, of levying an assessment in anticipation of benefits to accrue from public improvements. Nor do we think a fair construction of the statute leads to the conclusion that the district directors may levy assessments, exclusive of interest charges and the cost of repairs, which in the aggregate will exceed the benefits to the land assessed. We should not presume that the legislature ignored the constitution, but rather that it intended the drainage officials to act within the limits of the fundamental law. Voigt v. Detroit City, 184 U.S. 115, 46 L.Ed. 459, 22 S.Ct. 337; Martin v. District of Columbia, 205 U.S. 135, 51 L.Ed. 743, 27 S.Ct. 440; Ritter v. Drainage District, 78 Ark. 580, 94 S.W. 711; Village of Passaic v. State, 37 N.J.L. 538. We therefore conclude that the plaintiff's contention that the statute is repugnant to the constitution, and therefore void, is not well taken.

The plaintiff contends that the district has not been formed because the petition does not describe the character of the improvements to be made and because the board of supervisors did not find that the anticipated improvements will be conducive to the public health, convenience, or welfare. The petitioners alleged that it will be conducive to public health, convenience and welfare to form a district and to make and maintain improvements therein under the provisions of the act of the legislature herein considered. In our judgment the petition is not so indefinite as to be vulnerable to a collateral attack. The board of supervisors, after an examination of the proposed district and after receiving the advice of the county surveyor, found that it "will be for the public health, convenience and welfare to form a district as prayed for in said petition with certain modifications of the boundaries thereof as hereinafter provided." They also found "that said boundaries will do justice and equity to all persons and promote the interests of said district if formed." The boundaries of the proposed district are also set forth in detail. The drainage act contemplates the drainage of land by the construction of drains, dykes or levees, or by the construction, straightening, widening, deepening or alteration of existing drains, or watercourses, or by riprapping or otherwise protecting the banks of watercourses or by control of surface water or streams of running water. The earlier drainage acts permitted the construction of a main ditch with laterals, and were so hedged about with formalities and conditions that the officers charged with the duty of their administration encountered many difficulties. The supervisors were not permitted to exercise a discretion in the...