DeNny v. Des Moines Cnty.

• Decision Date: 02 July 1909
• Citation: 121 N.W. 1066,143 Iowa 466
• Parties: DENNY ET AL. v. DES MOINES COUNTY ET AL.
• Court: Iowa Supreme Court

143 Iowa 466

121 N.W. 1066

DENNY ET AL.

v.DES MOINES COUNTY ET AL.

Supreme Court of Iowa.

July 2, 1909.

Evans, C. J., and Weaver, J., dissenting.

Appeal from District Court, Des Moines County; W. S. Withrow, Judge.

The plaintiffs petitioned the board of supervisors of Des Moines county to establish a drainage district covering certain described land belonging to them and others. An engineer appointed by the board presented his report, recommending the establishment of a drainage district of 28,000 acres within the territory of the defendant county. Remonstrances were filed signed by 114 persons, and, proper notices having been served, a hearing was had before the board, which as a result of said hearing, found that the proposed district was not for the public benefit or utility, or conducive to the public health, convenience, or welfare, and refused to establish the proposed district. The petitioners appealed from this action of the board to the district court, which held that, while there was evidence introduced by the petitioners tending to show that said improvement would drain agricultural lands, and would be a public utility, and conducive to the public health, convenience, and welfare, and that the plan proposed was the only plan by which the agricultural lands within the territory described could be satisfactorily drained, the act of the board in refusing to establish the district was the exercise of legislative functions, and not judicial, and therefore dismissed the appeal for want of jurisdiction in the court to hear the same. From this ruling of the district court the petitioners appeal. Affirmed.Seerley & Clark, for appellants.

Poor & Poor, Blake & Wilson, and H. F. Kuhlemeier, for appellees.

McCLAIN, J.

The proceedings provided by Acts 30th Gen. Assem. p. 61, c. 68, as amended by Acts 32d Gen. Assem. p. 98, c. 94 (Code Supp. 1907, § 1989a1 et seq.), so far as involved in the determination of the questions presented in this case, are substantially as follows: A petition signed by one or more of the landowners whose lands are to be affected by the proposed improvement, accompanied by a bond for the payment of all costs and expenses incurred in the proceedings in case the supervisors do not grant the prayer of the petition, may be filed with the county auditor, describing the proposed drainage district, alleging that the lands so described are subject to overflow, and too wet for cultivation, and that the public benefit or utility, or the public health, convenience, or welfare, will be promoted by draining the same. The board of supervisors of the county, which is expressly authorized to have jurisdiction, power, and authority to establish a drainage district, and cause to be constructed ditches or drains therein whenever the establishment of such district and the drainage thereof will be of public utility, or conducive to the public welfare (the drainage of surface waters from agricultural lands being expressly declared to be a public benefit, and conducive to the public health, convenience, and welfare), is directed to thereupon appoint an engineer, who shall proceed to examine the lands described, and other lands which would be benefited by the said improvement, or necessarily affected in carrying it out, who shall thereupon survey and locate such drains, etc., as may be practicable and feasible to carry out the purposes of the petition, and which will be of public benefit or utility, or conducive to public health, convenience, or welfare, and make return of his proceedings to the county auditor with plats, profiles, etc., and a description of each tract of land within the proposed district, together with the probable cost, and such other views and recommendations as he may deem material. If the engineer recommends the establishment of the drainage district, the board is then to examine his return, and if the plan seems to be expedient, and meets the approval of the board, it shall direct the auditor to cause a notice to be given of the proposed establishment of the district. Before the day set for hearing claims for damages must be filed in the auditor's office. At the hearing on the petition the supervisors shall determine the sufficiency of the petition in form and matter, and, if deemed necessary, they may view the premises, and if “they shall find that such drainage district would not be for the public benefit or utility or conducive to the public health, convenience, or welfare, they shall dismiss the proceedings; but if they shall find such improvement conducive to the public health, convenience, or welfare, or to the public benefit or utility, and no claims shall have been filed for damages, they may, if deemed advisable, locate and establish the same in accordance with the recommendations of the engineer, or they may refuse to establish the same if they may deem best.” If claims have been filed for damages, then the proceedings may be continued for an assessment of damages by appraisers, and the supervisors shall on a further hearing consider the amount of damages awarded by the appraisers in reaching a final determination in regard to establishing such drainage district; and, if in their opinion the cost of construction and the amount of damages is not excessive, and a greater burden than should be properly borne by the land benefited, they shall locate and establish the same. Any party aggrieved may appeal from the finding of the board in establishing, or refusing to establish, the district, or from its finding in the allowance of damages to the district court, which appeal shall be tried in that court as an ordinary proceeding, except that when the appeal is from the order of the board in establishing, or refusing to establish, the district, it shall be tried in equity, and the court shall enter such order as may be proper in the premises. It is then provided that the costs and damages as determined by the board of supervisors, or by the district court on appeal, shall be assessed against the property benefited in proportion to the benefits.

From this general statement of the statutory provisions on the subject it clearly appears that a discretion is vested in the supervisors to determine: First, on evidence presented and on their view of the premises, if deemed necessary, whether the establishment of the drainage district would be for the public benefit or utility, or conducive to the public health, convenience, or welfare; and, second, if damages are claimed, whether the cost of construction and amount of damages awarded is a greater burden than should be properly borne by the land benefited. If, as to either of these matters submitted to their consideration, the supervisors determine that it is not advisable in their judgment to establish the drainage district and make the proposed improvements, the costs of which are to be paid by assessments on the lands to be benefited, included within the proposed district, then they are authorized to refuse to establish the district as prayed for in the petition and recommended by the engineer appointed.

In the proceedings instituted by these petitioners the board of supervisors determined that in their judgment the proposed district was not for public benefit, or utility, or conducive to the public health, convenience, or welfare, and dismissed the petition. The petitioners appealed to the district court from this finding, which reached the conclusion that it had no jurisdiction to review such finding, and the question, succinctly presented on this appeal from the action of the district court, is whether the determination of the board was legislative in its character, and therefore one not reviewable in the courts, or whether, on the other hand, the court to which such an appeal is taken may, on the questions presented to the board of supervisors for determination, on its judgment and in its discretion substitute itself for the board, and on the hearing of new evidence, if offered in addition to that submitted to the board, established the district which the board has refused to establish. It may be conceded that the broad provisions relating to appeals authorize an appeal by the petitioners from the action of the board in its judgment and discretion refusing to establish a district, and to proceed further in the making of the public improvement contemplated, and we must therefore determine whether such authority as is contemplated can be vested in a court.

In view of the express provision of our state Constitution that the powers of the government shall be divided into three separate departments, the legislative, the executive, and the judicial, and that no person charged with the exercise of powers properly belonging to one of these departments shall exercise...