Bryant v. Robbins

• Citation: 70 Wis. 258,35 N.W. 545
• Parties: BRYANT ET AL. v. ROBBINS ET AL.
• Decision Date: 13 December 1887
• Court: United States State Supreme Court of Wisconsin

70 Wis. 258

35 N.W. 545

BRYANT ET AL.

v.ROBBINS ET AL.

Supreme Court of Wisconsin.

December 13, 1887.

Appeal from circuit court, Dane county.

Proceedings for appointment of drainage commissioners. The opinion states the facts.Rogers, Luce & Hall, for appellants.

Pinney & Sanborn, for respondents.

COLE, C. J.

This is a proceeding instituted under chapter 442, Laws 1885, which provides a system for the drainage and reclamation of lands in Dane county. A petition was presented to the circuit court of the county, signed on behalf of the common council of the city of Madison, George E. Bryant, and more than 40 other persons, who represent that they are owners of wet and overflowed lands in the county, and setting forth the matters required by the law to be stated in the petition, and asking that a board of commissioners be appointed for the purposes prescribed. A demurrer was interposed to this petition by the owners of the mill-dam and water-power at the outlet of Lake Monona, on the ground that the law in question was unconstitutional and void; which demurrer was sustained, and the petition dismissed.

The only question which we have to consider on this appeal is whether the law is in conflict with the provisions of our constitution. It is said the learned circuit court held that the law violated section 23, art. 4, which declares that the legislature shall establish but one system of town and county government, which shall be as nearly uniform as practicable. Chapter 54, Rev. St. 1878, provides for a system of drainage which is to be carried out or executed by town and county officers, and it is insisted that chapter 442 vests the powers as to drainage in a different body, over which neither the town nor county authorities have any control. This, it is said, is a plain departure from the system of town and county government which prevails elsewhere in the state. It may admit of doubt, as argued by the counsel of the appellants, whether the power to construct drains, etc., given to town and county officers under the general law, is, strictly speaking, a part of the system of government belonging to those political corporations within the meaning of the constitution. It is rather a special authority conferred for a special purpose, calculated to promote the public health and welfare. The powers and duties of county and town officers are those which they ordinarily and usually exercise as a part of the regular and permanent administration of the town and county governments. It is a significant fact in this discussion that no drainage law was enacted for several years after the adoption of the constitution, nor was any such power as is now conferred given to town and county officers to execute such work. There is therefore strong reason for saying that the power to construct drains is in no proper sense a part of the usual powers belonging to town and county governments, but is a special authority given for a particular purpose, and which may be conferred upon any persons or body upon which the legislature may see fit to confer it. In Sheboygan Co. v. Parker, 3 Wall. 93, a kindred objection was considered in regard to the authority of commissioners appointed by the legislature to subscribe to the stock of a railroad, and bind the county by their acts. It was contended that no persons but county officers could exercise such a corporate duty, and create a debt against the county. But the objection was overruled; the court holding that a county officer was understood to be one by whom the county performs its usual political functions or offices of government, and that it did not include persons appointed to perform the special duty in question. We do not think chapter 442 comes within the decisions in State v. Riordan, 24 Wis. 484;State v. Supervisors, 25 Wis. 339;State v. Dousman, 28 Wis. 541;McRae v. Hogan, 39 Wis. 529;State v. Supervisors, 62 Wis. 376, 22 N. W. Rep. 572. In the last case, the act considered relieved all towns in the state outside of Grant county from the expense of erecting and maintaining the bridges therein specified, and cast the burden of doing so upon the respective counties, while each town in Grant county was compelled to erect and maintain any such bridge within its limits at its own expense. Imposing taxes for the erection of bridges is one of the usual powers and duties of the constituted authorities of towns or counties, and ever has been; and it was essential that there should be no discrimination on that subject, but that the act should be uniform in its application. If we are right in supposingthat the drainage of swamps and marshes is not the ordinary duty or function of a town or county officer, then the last decision obviously does not apply to the case.

The law under consideration confers enlarged powers for drainage, and brings the whole subject under the control and supervision of a different tribunal than the one provided in the general law. It certainly seems to furnish all necessary restrictions to guard against abuse and oppression in its administration, as an examination of its provisions will show. The petition must be signed by 25 or more owners of wet or overflowed lands in the county, who are of the opinion that such lands will be benefited by the proposed system of drainage, subject to the assessment provided; and who shall also be of the opinion that the public health and welfare will be promoted thereby; and who desire to institute the proceeding for the drainage and reclamation of their land, “either by constructing, extending, opening, enlarging, widening, straightening, or deepening water-courses, or removing natural or artificial obstructions therefrom, or by permanently lowering the ordinary level of the water in any or all of the six lakes” mentioned. The petition must “specify, in general terms, the nature of the improvement desired to be made;” give a “description of the lands to be benefited thereby; state the benefits to the public health or convenience, and to private property, which it is believed will result from such system of drainage, and that such system is practicable.” The petition must further specify “the stream, lakes, or water-courses proposed to be dredged, widened, deepened, straightened, or altered in course, and the lakes to be lowered, and to what extent, and the principal obstruction to be removed;” “and that, in the belief of the petitioners, the costs, damages, and expenses will be less than the benefits which will result to the owners of the lands likely to be benefited thereby. If any town or city as a whole will be benefited by such system of drainage, the petition may so state, setting forth the nature of such benefits.” The common council of the city of Madison is authorized to join in said petition in behalf of said city, and any town board may join which has thereto first been duly authorized so to do by a vote of the town. The petition may also inform the court of any other matters relevant or pertinent to the matter. It is to be verified and filed with the clerk for the action of the circuit court, or presiding judge thereof, asking for the appointment of five commissioners, “to be known as the ‘Dane County Drainage Commissioners.’ ” The filing of the petition shall be deemed the commencement of an action in said court, affecting all lands or other property that may be benefited, or damaged, or interfered with, or taken for public use by virtue of the act. Upon such filing, the court or judge makes an order prescribing the notice to be given to all parties interested in the hearing of the petition; and, upon proof being made of the giving of the required notice, any persons whose estates or interests are to be affected by the proceeding may show cause against the prayer of the petition. The court or judge hears the parties interested, and “determines and adjudicates whether the system of drainage proposed by said petition is one of public utility beyond any damage to individuals to result therefrom, and whether the public health is likely to be improved thereby, whether any highways or public streets of a town or city will be benefited, and whether such proposed system is of such paramount public benefit as to warrant the proceeding authorized in such case by the act, and whether the costs, damages, and expenses will be less than the benefits which will result to the owners of the lands likely to be benefited.”

If no sufficient cause is shown against granting the prayer of the petition, and if it shall be made to appear that such proposed system of drainage will not permanently reduce the main level of the waters of Lake Monona below a point therein named, the court or judge, if he deem proper, may make an order appointing five...