Chi. & N. W. Ry. Co. v. Bd. of Sup'rs of Hamilton Cnty.

• Decision Date: 22 May 1917
• Docket Number: No. 30286.,30286.
• Citation: 162 N.W. 868,182 Iowa 60
• Court: Iowa Supreme Court
• Parties: CHICAGO & N. W. RY. CO. v. BOARD OF SUP'RS OF HAMILTON COUNTY ET AL.

182 Iowa 60

162 N.W. 868

CHICAGO & N. W. RY. CO.

v.BOARD OF SUP'RS OF HAMILTON COUNTY ET AL.

No. 30286.

Supreme Court of Iowa.

May 22, 1917.

Appeal from District Court, Hamilton County; C. E. Albrook, Judge.

The right of way and other lands owned by plaintiff within the above-named district were assessed with a part of the cost of constructing the drainage system, and it appealed from the assessment so made to the district court. On a hearing of the evidence, the court confirmed the assessment as levied by the board of supervisors, and plaintiff again appeals. Affirmed.J. L. Kamrar, of Webster City, and J. C. Davis and George E. Hise, both of Des Moines, for appellant.

D. C. Chase and J. M. Blake, both of Webster City, for appellees.

WEAVER, J.

The district is made up of farm lands and part of the town of Kamrar, and includes a total area of about 2,200 acres, through the east part of which runs appellant's right of way for a distance of about 1 3/8 miles. The right of way proper is 100 feet wide. The station grounds are 2,000 feet in length, and, according to the scale of the plat submitted by appellant, are 300 feet wide or, as stated by counsel, 260 feet. In its natural condition, the land, while not hilly, is uneven, alternating frequently between dry elevations and tracts of wet or swampy character; the whole constituting an area to receive material benefit by drainage. The proceedings for organizing the drainage district were initiated under chapter 2A of title 10, Code Supplement, and no question is raised in argument against the regularity of the proceedings if the statute referred to is held to be constitutional. Upon petition of landholders for such improvement, the board of supervisors appointed an engineer who examined the lands described in the petition and other lands which would be benefited by the improvement, and made report of his findings as provided by the statute, recommending the establishment of the district substantially as prayed for. The plan so reported appearing to the board of supervisors to be expedient and desirable, it ordered the county auditor to give notice to all the landowners, within the proposed district of the pendency and prayer of the petition, of the favorable report of the engineer thereon and of the day for the hearing upon said report, also that all claims for damages should be filed in proper time before said day of hearing. At the time so appointed, the appellant, by its attorney, appeared before the board of supervisors and filed written objections to the establishment of the district, denying that such improvement would be of any public utility or would promote public health, convenience, or welfare, or be of any benefit whatever to the railway company or its property, and that the cost would be oppressive and out of proportion to the benefits to be derived therefrom. It was also objected that the statute under which it was proposed to establish the district and construct the improvement is unconstitutional and void, in that it operates to deprive the appellant of its property or to subject its property to a heavy burden without due process of law and without compensation, and denies to appellant the equal protection of the law, contrary to various specified provisions of the Constitution of Iowa and the Constitution of the United States. Upon consideration of these objections, the board of supervisors overruled them and ordered the establishment of the district as recommended by the engineer. From this order establishing the district, the appellant did not appeal. Thereafter the contract for the work was let and performed, and the commission appointed to assess the benefits derived from the improvement and to assess the cost thereof against the land made its report. Notice of hearing upon such report was then given as provided by law to all the owners of property so charged, naming the day when the matter would come on for hearing. On the day so named, the appellant again appeared and, objecting to the assessment laid upon its property, alleged that the board of supervisors had no jurisdiction of the matter and was without lawful authority to levy such assessment and that the amount so assessed upon its property was excessive, unfair, and discriminating. It also again pleaded at much length the unconstitutionality of the drainage statute upon grounds to which we shall more particularly refer in the further progress of this discussion. The board overruled these objections and affirmed the assessment made upon the railway property as reported by the commission. From that order the railway company in due time appealed to the district court, where it filed a petition again setting forth its objections to the assessment and asking that it be vacated and set aside, and, in event that such prayer be denied, demanded that its tax be reduced to an equitable amount and in proportion to the benefits received therefrom. Upon trial to the court, the assessment was ordered confirmed as made, and appellant now brings the case to this court for review.

I. In printed brief and argument counsel for appellant have given most prominence to their objections to the constitutional validity of the drainage act. These objections cover a somewhat wide range of statement, but in last analysis they may be comprehended in the proposition that the act makes no proper provision for notice to the landowner of the proposed inclusion of his property in the district or for any hearing of his objections thereto, with the result that he is thereby deprived of his property, or a burdensome tax is laid upon it without due process of law.

If the assumed premises be correct, then the objection is sound, for under our system of government a person may not be deprived of the benefits of due process of law for the protection of his personal and property rights. The question presented is not a new one, but we think it clearly demonstrable that the argument in support of the objections misapprehends the force and effect of the statute as well as of our previous decisions thereon.

[1][2] The proceeding by which the state undertakes the establishment of a drainage district, or to authorize a board of supervisors or other local tribunal to create such district, and to assess the cost of the improvement upon the lands of such district, is an exercise of the taxing power (and possibly to a certain extent of the police power) and not the power of eminent domain except as to the property actually taken or appropriated for the ditches. Bearing this in mind, the subject is freed from much of its apparent difficulty. Hedge v. Des Moines, 141 Iowa, 22, 119 N. W. 276;Denny v. Des Moines County, 143 Iowa, 466, 121 N. W. 1066;Railway Co. v. Monona, 144 Iowa, 176, 122 N. W. 820;Ross v. Board, 128 Iowa, 427, 104 N. W. 506, 1 L. R. A. (N. S.) 431;People v. Mayor, 4 N. Y. 421, 55 Am. Dec. 266;McComb v. Bell, 2 Minn. 295 (Gil. 256); Weeks v. Milwaukee, 10 Wis. 242;Rogers v. St. Paul, 22 Minn. 494; Cooley on Taxation (2d Ed.) 149; 25 Am. & Eng. Ency. (2d Ed.) 1169. And, in so far as a statute involves an exercise of legislative discretion, there is no constitutional requirement that notice is essential to its validity. If, however, legislative authority is delegated by the state to some inferior body with a restriction by which it is to be used only upon notice to persons whose interests are thereby affected, then, of course, compliance therewith is a condition precedent to its lawful exercise. That condition being complied with, the legislative act, within the limits of the delegated power, is not open to revision or control by the courts. Says the court in the St. Paul Case, supra:

“As respects taxation, the authority of the Legislature is limited only by the Constitution and the nature of taxation itself. * * * It was therefore competent for the Legislature to give this final and conclusive effect to the determination of the common council; that is to say, it was competent for the Legislature to enact that their determination, as a part of the machinery of taxation, should be final and conclusive, as respected the question whether a proposed local improvement was of such character that the amount of taxes necessary to be raised to pay for the expense of making it would exceed the special benefits.”

In Spencer v. Merchant, 125 U. S. 345, 8 Sup. Ct. 921, 31 L. Ed. 763, the Supreme Court of the United States lays down the rule as follows:

“The Legislature, in the exercise of its power of taxation, has the right to direct the whole or a part of the expense of a public improvement * * * to be assessed upon the owners of lands benefited thereby; and the determination of the territorial district * * * is within the province of legislative discretion”--citing Willard v. Presbury, 81 U. S. (14 Wall.) 676, 20 L. Ed. 719;Davidson v. New Orleans, 96 U. S. 97, 24 L. Ed. 616;Mobile v. Kimball, 102 U. S. 691, 26 L. Ed. 238;Hagar v. District, 111 U. S. 701, 4 Sup. Ct. 663, 28 L. Ed. 569.

To the same effect, see Nottage v. Portland, 35 Or. 554, 58 Pac. 883, 76 Am. St Rep. 513;Wilson v. Salem, 24 Or. 508, 34 Pac. 9, 691;Williams v. Eggleston, 170 U. S. 311, 18 Sup. Ct. 617, 42 L. Ed. 1047. In the last-cited case it is said:

“Neither can it be doubted that, if the state Constitution does not prohibit, the Legislature speaking generally, may create a new taxing district, determine what territory shall belong to such district and what property shall be considered as benefited by a proposed improvement. And in so doing it is not compelled to give notice to the parties resident within the territory or permit a hearing before itself, one of its committees, or any other tribunal, as to the question whether the property so included within the taxing district is in fact benefited.”

Indeed, the authorities to this effect are almost without limit, and all to the same force and effect. But the fact that the statute which we are...