Drainage District No. 1, Richardson County v. Richardson County

• Decision Date: 28 March 1910
• Docket Number: 16,372
• Citation: 125 N.W. 796,86 Neb. 355
• Parties: DRAINAGE DISTRICT NO. 1, RICHARDSON COUNTY, APPELLEE, v. RICHARDSON COUNTY, APPELLANT
• Court: Nebraska Supreme Court

125 N.W. 796

86 Neb. 355

DRAINAGE DISTRICT NO. 1, RICHARDSON COUNTY, APPELLEE, v. RICHARDSON COUNTY, APPELLANT

No. 16,372

Supreme Court of Nebraska

March 28, 1910

APPEAL from the district court for Richardson county: LEANDER M PEMBERTON, JUDGE. Affirmed.

AFFIRMED.

Amos E Gantt and Clarence Gillespie, for appellant.

Kelligar & Ferneau, A. R. Keim, A. R. Scott and E. Falloon, contra.

BARNES J. SEDGWICK, J., dissents.

OPINION

BARNES, J.

A majority of the owners of about 30,000 acres of swamp, overflowed or submerged lands situated in Richardson county formed a drainage district for the purpose of draining such lands under the provisions of article IV, ch. 89, Comp. St. 1909 (Ann. St. 1909, secs. 5561-5597), and after its organization the district, in carrying out the purpose for which it was formed, apportioned the benefits, assessed the cost of the improvement, and required the county of Richardson to pay the sum of $ 18,600 as its share thereof on account of special benefits accruing to the 53 miles of public roads or highways situated and maintained within its boundaries. From a hearing before the board of drainage supervisors the county appealed to the district court, where a trial resulted in a judgment confirming and approving the order above mentioned, and from that judgment Richardson county has brought the case here by appeal.

The record presents many important and interesting questions, which will be stated and determined in the order in which they have been discussed by counsel.

1. Appellant's first contention is that the drainage district is not a public, but is a private, corporation engaged in the promotion of a private enterprise for the betterment of private property, and therefore the county cannot be required to contribute to the cost of the construction of its drainage system. That question was decided by this court in the case of Neal v. Vansickel, 72 Neb. 105, 100 N.W. 200. It was there said: "That the districts contemplated by the act are intended to be of a purely public and administrative character, is evident as well from the title as from the body of the law itself. Its officers are chosen by popular election and their powers, duties, compensation and terms of service are prescribed by the statute. The sources of its income are predetermined as are also the uses to which it may be applied, and the county treasurer is made the custodian of its funds, and his disbursement of them regulated as in case of other public moneys. In our opinion, it is too late in the day to contend that the irrigation of arid lands, the straightening and improvement of watercourses, the building of levees and the drainage of swamp and overflowed lands for the improvement of the health and comfort of the community, and the reclamation of waste places and the promotion of agriculture, are not all and every of them subjects of general and public concern, the promotion and regulation of which are among the most important of governmental powers, duties and functions." Supporting this doctrine are many authorities, among which are Mound City Land & Stock Co. v. Miller, 170 Mo. 240, 60 L. R. A. 190, 70 S.W. 721; Morrison v. Morey, 146 Mo. 543, 48 S.W. 629; Tide-water Co. v. Coster, 18 N.J.Eq. 518, 90 Am. Dec. 634, and other well-considered cases. We see no reason at this time to depart from that opinion, and therefore this contention must be considered foreclosed so far as this court is concerned.

2. Appellant attacks the power of the drainage district to assess and collect from any political subdivision of the state any sum of money for benefits accruing to a highway from the improvement in question, and contends that such power cannot be granted by the legislature. In support of this contention appellant cites section 2, art. IX of the constitution, exempting the property of the state, counties and municipal corporations from taxation. The theory of that provision is that all such property belongs to the state, and it would be an idle proceeding for the state to collect a tax levied and assessed upon its own property. It has long been settled in this state that this section has reference only to taxes assessed by general valuation for general purposes, and has no reference to special taxation of property benefited by the creation of local improvements. City of Beatrice v. Brethren Church, 41 Neb. 358, 59 N.W. 932.

The argument of appellant's counsel, however, is that the county is the sole owner and proprietor of the highways assessed, and therefore it should not be required to assess and collect taxes upon its own property. We think this idea is a mistaken one. In Krueger v. Jenkins, 59 Neb. 641, 81 N.W. 844, it was said: "A county does not hold the legal title to county roads within its borders; it has no powers of disposition over them. * * * In performing the duties with which it is charged in connection with them, it acts as an agent of the state, and in the interests of the general public." We can see no reason why the county acting for the general public should not be required to pay for the benefits accruing to the public roads. It is charged with the duty of constructing and maintaining such roads in a suitable condition for public travel, and, if the improvement contemplated by the drainage district materially aids in the performance of that duty, there would seem to be no good reason why the county should not pay for the benefits thus conferred upon it.

Our attention is also invited to section 6, art. IX of the constitution, by which it is provided that the legislature may authorize the corporate authorities of cities, towns and villages to make local improvements and pay for the same by special assessment of the property benefited. As early as 1879, in construing this section, we said: "The constitution of a state not being a grant, but a restriction upon the power of the legislature, therefore a provision in the constitution, that 'the legislature may vest the corporate authorities of cities, towns, and villages with power to make local improvements by special assessments, or by taxation of property benefited', merely prescribes the rule of apportionment of such special taxes, and does not prohibit the legislature from conferring the power to make local improvements by special assessments or taxation * * * upon other municipal corporations than those designated." State v. Board of County Comm'rs, 8 Neb. 124. Darst v. Griffin, 31 Neb. 668, 48 N.W. 819; Dodge County v. Acom, 61 Neb. 376, 85 N.W. 292. We have adhered to this construction for more than 30 years, and it has had an important bearing upon the development of the state. It is by virtue of this construction placed upon section 6, art. IX, that the appellee and other public corporations are empowered to advance the welfare and prosperity of the state.

In Heffner v. Cass and Morgan Counties, 193 Ill. 439, 58 L. R. A. 353, 62 N.E. 201, the supreme court of Illinois said: "'A county is a public corporation, which exists only for public purposes connected with the administration of the state government, and it and its revenues are alike, where no express constitutional restriction is found to the contrary, subject to legislative control (p. 449).' * * * 'They were created to perform public, and not private, functions. They are wholly public in their character, and are a portion of the state organization. All their powers are conferred, and duties imposed, by the constitution and statutes of the state. They are public, and all the property they hold is for public use. It belongs to the public, and the county is but the agent invested with the title to be held for the public. * * * The property held by the county was only acquired and held by authority conferred by the legislature, and for public use, and the property being held for the public is under the uncontrolled power of the general assembly, as it is not inhibited in its absolute control. The county could neither hold nor dispose of property unless authorized by the constitution or statute, and the legislature has the power to sell or dispose of it without the consent of the county authorities (p. 448).'"

The effect of the enactment of section 19, ch. 161, laws 1905, was simply a declaration of the legislature that any public corporation engaged in a work of public utility shall have the right and power to collect, by way of special assessment, benefits which are found to accrue to public property from another public corporation. Under the rule laid down by the legislature, however, the benefits assessed must not exceed the benefits conferred, and a procedure is provided by which this issue may be determined, and a right to a review of such decision by the courts is preserved to both parties. No provision of the constitution has been pointed out which denies such power where the assessments do not exceed the benefits, and we have not succeeded in finding any such. To drain a large tract of land and render it fit for habitation and use, and to facilitate the interchange of communication across it, is the proper use of the taxing power, and was so held in the leading case of Tide-water Co. v. Coster, supra.

The constitution of Illinois is in many respects like the constitution of this state, and the supreme court of that state has said: "If a highway over marshy or swampy ground shall be drained, it will be improved, and the public will be benefited thereby. That will be done by the drainage district which it was the duty of the highway district to do and therefore it imposes no burden on the highway district that it shall be required to contribute, in proportion to the benefit thus received, for the improvement whereby it is produced, but, on the contrary, it ratably distributes the...