Donnelly v. Decker

• Decision Date: 20 November 1883
• Citation: 58 Wis. 461,17 N.W. 389
• Parties: DONNELLY v. DECKER AND OTHERS.
• Court: Wisconsin Supreme Court

58 Wis. 461

17 N.W. 389

DONNELLY

v.DECKER AND OTHERS.

Supreme Court of Wisconsin.

Filed November 20, 1883.

Appeal from circuit court, Waushara county.

Geo. D. Waring, for respondent, Thomas Donnelly.

R. L. D. Potter and Jackson & Thompson, for appellants, Thomas Decker and others.

ORTON, J.

This is an action of trespass for digging a ditch through the plaintiff's land, and the defendants justified as supervisors of the town, and as acting under their authority and by their employment, under chapter 54 of the Revised Statutes, which provides for making ditches or drains through swamp and overflowed lands. The plaintiff obtained a judgment, and the findings of the circuit court ignore entirely the matter of justification, on the ground, as it is said by the learned counsel of the respondent, that the provisions of said chapter are in conflict with the constitution of this state in not requiring just compensation to be made for private property taken for such public use, and in violating the rule of uniformity of taxation. Another point is made on the argument in this court that the proceedings of the supervisors did not conform to the provisions of said chapter.

The ground upon which the circuit court ruled against the defense will first be considered. There is so much conflict and confusion of authorities upon this question, confined to a law of this character and relating to what are supposed to be cognate or analogous objects, that it would be fruitless and profitless to review such authorities, or attempt to reconcile them, or even to make them specially applicable to this case. Most of them relate to street or sidewalk improvements, or sewers in connection with streets, in all of which cases there is a clear and unquestionable public use. This identical question is new in this court. Very many cases have been decided here relating to the opening, grading, or improvement of streets, changing the waters of rivers in connection with the same, and to the building of sidewalks and similar works of internal improvement, which are evidently for the public use, and, of course, fall under the above provisions of the constitution. In respect to benefits to be assessed, it has finally been decided and followed that such benefits must be actual and not constructive or arbitrary; and that an assessment which is in excess of such benefits falls within the rule of the constitution as to taxation, or, in other words, actual benefits or assessments proper for local improvements, the power over which existed in the legislature, antecedent to the adoption of the constitution, as an inherent municipal power, and to that extent is not affected by the constitution; but all in excess of such actual benefits is a general or public tax, to be borne by the people of the district, according to the constitutional rule of uniformity. Johnson v. City of Milwaukee, 40 Wis. 315;Weeks v. City of Milwaukee, 10 Wis. 242;Fire Dep't of Milwaukee v. Helfenstein, 16 Wis. 137.

There may have been decisions of this court in agreement with the decisions of the state of New York, that, so far as such burdens are local and special, such assessments do not fall within the rule of uniformity, as in Breed v. Kenosha, 17 Wis. 288, and other cases. In respect to such improvements it may be that the owner of the land may be paid his compensation in actual benefits, as in Hatton v. Milwaukee, 31 Wis. 42. But the view we take of this case renders it unnecessary to examine further the decisions of this court relating to the taking of private property for public use, and to the rule of uniformity in taxation. Section 1359 provides for an application by six or more freeholders of the town in which such marsh, swamp, or overflowed lands are situated, one of whom shall be the owner of the land through which the ditch is proposed to be laid, to lay out and establish such ditch or drain, etc., “if, in their judgment, such ditch, drain, or enlargement is demanded by or will conduce to the public health or welfare.” Section 1361 provides for a meeting of the supervisors for such purpose upon proper notice to all parties interested. Section 1362 provides for their decision of the question upon personal examination of the ground. Section 1362 provides that they shall decide and establish the route of the ditch and its width, and make a survey and map, and file them with the town clerk; and it also provides for an appeal to a justice of the peace, and the subsequent proceedings thereon. Section 1363 provides for dividing such drain into sections, to be kept in repair by certain contiguous land-owners, whose lands are drained. Section 1364 provides for apportioning the whole cost upon the several tracts of land benefited in proportion to the benefits to be respectively derived from such ditching.This is as far as the provisions need to be noticed, to raise the question involved in the case, except that provision is made for ascertaining damages to any land-owner, and that such damage shall be paid out of the town treasury.

It is obvious, at first blush, that this law cannot be sustained as providing for a work for the public use. First, there is no provision whatever for compensation to the owner for his lands actually taken; second, the tax or assessment, or whatever it may be called, beyond the actual benefits, is arbitrary, and according to the rule of uniformity is unequal, as it ought to be borne by all citizens of the town alike; because, beyond the actual benefits, any other person in the town receives a corresponding benefit, and is justly liable to bear his proportion of such tax. Historically, such laws, with even more stringent provisions against the owners of the lands to be drained or reclaimed by the ditching, exist in many of the states, and in some have existed from an early day, and they have generally been upheld. If such an improvement is really for the public use and benefit, then it must fall within the principles of eminent domain and taxation, and on this theory the law cannot be sustained. Such drainage laws have sometimes been treated as being within those principles, and have been condemned because they provide for taxation beyond actual benefits, upon an arbitrary and unequal basis, as in Tidewater Co. v. Coster, 18 N. J. Eq. 518, and that no certain compensation is provided for the land-owner whose lands are actually taken. Cottrill v. Myrick, 3 Fairf. 222;Matter of Canal Street, 11 Wend. 154, and many other cases, are cited in the opinion in that case showing that taxation beyond actual benefits would render the act void. See, also, Lee v. Ruggles, 62 Ill. 428. It is too clear for argument that this law cannot be sustained, if it come within the doctrine of these and similar cases, where it is held that private property is taken for public use under the power of eminent domain, and that the excess of the assessment is taxation. This same principle has been established in numerous cases in this court. Robbins v. M. & H. R. Co. 6 Wis. 636;Powers v. Bears, 12 Wis. 213;Kennedy v. M. & St. P. Ry. Co. 22 Wis. 582;Snyder v. W. U. R. Co. 25 Wis. 60;Sherman v. M., L. S. & W. Ry. Co. 40 Wis. 652;Busch v. M., L. S. & W. Ry. Co. 54 Wis. 138; [S. C. 11 N. W. REP. 253;] Lumsden v. Milwaukee, 8 Wis. 488;Seifert v. Brooks, 34 Wis. 444.

It requires but a casual examination of these provisions for the draining of the swamp and overflowed lands of the state to be apparent that such ditching and draining are for no public use whatever in the legal meaning of the term. The pecuniary object is solely to restore such lands to a proper condition for tillage and agriculture by the several owners, and for their use alone. It enhances their value, intrinsic and in market. This is the only object which concerns their use, and that use is strictly private. The other object, and the only one mentioned in the law, is that such ditching, draining, and enlargement of drains will “conduce to the public health or welfare.” It is clear that no private property is authorized by this law to be taken for the public use, and that whether taxation so called or assessment, it is not an exaction of the government for revenue or for any public purpose. It follows that this system of drainage of the lands of private owners by special assessment of all of them proportionably according to their respective private benefits, is not within the purview of any provision of the state constitution, and it cannot be sustained thereby. But there is a sovereign power in the state, to be exercised by the legislature, which is outside, and in a sense above, the constitution, called the public power of the state. Chief Justice SHAW, in Com. v. Alger, 7 Cush. 53, gives as good a definition of this high and comprehensive power as any which can be found: “All property in this commonwealth is held subject to those general regulations which are necessary to the common good and general welfare.”

Chief Justice REDFIELD, in Thorpe v. R. & B. R. Co. 27 Vt. 140, says: “The power of the state extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the state.” By it “persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the state;” according to the maxim, “ sic utere tuo ut alienum non lœdas.” This legislation may readily be referred to this power by providing for the public health. If it were not for this obvious and clearly expressed purpose of the law, it could not be endured for a moment, because it would provide for a despotic and most unwarrantable interference with private property for strictly private purposes and use, in which neither the people of the state nor the state itself, nor the public, have any interest whatever. If these lands are to be reclaimed by some work or method of improvement which might be used by the...