Erickson v. Cass County

• Citation: 92 N.W. 841,11 N.D. 494
• Decision Date: 12 November 1902
• Docket Number: 6731
• Court: United States State Supreme Court of North Dakota

92 N.W. 841

11 N.D. 494

ERICKSON et al. v. CASS COUNTY et al

No. 6731

Supreme Court of North Dakota

November 12, 1902

Appeal from district court, Cass county; Lauder, J.

Action by August Erickson and others against Cass county, the board of county commissioners of Cass county, and O. J. Olson auditor. Judgment for defendants, and plaintiffs appeal. Modified and affirmed.

Affirmed.

J. E Robinson, for appellants.

Ball Watson & Maclay, for respondents.

OPINION

YOUNG, J.

The plaintiffs, who are 52 in number, united in instituting this action for the purpose of enjoining the county auditor of Cass county from extending upon the tax lists of that county certain assessments against their lands, made by the drain commissioners of that county, to defray the cost of the construction of Argusville drain No. 13, and to enjoin the county commissioners of said county from issuing drainage bonds to cover the expense incurred in its construction. The complaint alleges "that in all things pertaining to the construction of said drain, the assessments of benefits under the same, and the awarding of contracts for such construction, and the issuing of warrants for the expense of the same, and in all other matters thereto pertaining, the said drain commissioners failed to comply with the requirements of the law, and by reason of such failure all their doings as such drain commissioners are entirely void," in this: That "the petition for the drain was not signed by the owners or legal representatives of such lands as, in the aggregate, are liable to assessment for the major portion of the cost thereof"; that the drain was established without any evidence showing the interest of the petitioners in the lands liable to assessment; that the same was constructed at an expense of $ 42,000; that the total benefits to be derived from said drain do not amount to more than one-third part of the cost thereof, and that the total cost should not have exceeded $ 12,000; that contracts for the construction of the drain were not let in such a manner as to secure fair and honest competition; that a large portion of the expense allowed for the construction of the drain, to wit, half the expense, or more, was allowed upon the cost of a drain formerly constructed under the drainage laws of 1895, which could not be legally assessed against their lands; that the commissioners allowed to themselves and others large and unauthorized sums as expenses for constructing said drain; that they failed to make any legal assessment of benefits; that they charged against the lands of plaintiffs a sum or percentage equal to three times the amount of the benefits to said lands; that they failed to make charges against other lands in the vicinity of the ditch which were benefited by its construction; that they did not give 10 days' notice of the time and place of their meeting for the purpose of reviewing the assessments, and did not hold any session as a board for the purpose of such review. The complaint further alleges that the county commissioners of Cass county intend to issue negotiable bonds, under section 31 of chapter 51 of the Laws of 1895, to the full amount which the said drainage commissioners have allowed as the expense of constructing said Argusville drain No. 13. The answer denies generally all the allegations of the complaint, avers that all of the proceedings relating to said drain and the assessment of benefits therefor were in accordance with the requirements of the statute, and admits that the plaintiffs own lands which have been assessed, and that the county commissioners of Cass county intend to issue bonds as alleged in the complaint.

The trial court found that the drain in question was established upon a proper and sufficient petition, and "that the board of drain commissioners complied fully with the requirements of law in establishing and constructing said drain, in making assessments of benefits under and for the same, and in all other matters pertaining thereto;" further, "that the lands of the plaintiffs, and each of them, were and are benefited, both directly and indirectly, by the construction of said drain, and that the assessment for benefits laid thereon by the board of drain commissioners were and are in all things in accordance with such benefits, and are legal and valid charges upon such property." The court further found that the plaintiffs, and each of them, at all times had knowledge that the drain was being constructed, during the time that the construction was in progress, and of the fact that assessments had been made and levied thereon, and that they permitted said proceedings to progress, and said drain to be constructed, and the sum of about $ 42,000 to be paid out, or liability therefor to be incurred, for the construction of said drain, without applying to the district court or any other court for preventive or other relief. The court further found that $ 750 is a reasonable amount to be taxed as attorneys' fees against the plaintiffs, in addition to the statutory costs and disbursements. From the foregoing facts the court found, as conclusions of law, that the assessments against plaintiffs' lands are legal charges thereon; that plaintiffs, and each of them, are estopped to question the validity or legality of said assessments; that plaintiffs are not entitled to any relief, and the defendants are entitled to recover and have taxed against the plaintiffs, as part of the costs and disbursements in this action, the sum of $ 750 as attorneys' fees, in addition to the statutory costs and disbursements. From the judgment entered in pursuance of such findings the plaintiffs have appealed to this court for a review of the entire case.

The record presented in this court contains a large amount of testimony. There are, however, but few facts in dispute, and as we shall hereafter see, they are but of minor importance. A proper determination of the case upon this appeal will depend almost entirely upon the solution of a number of legal questions, to which we will first turn our attention. It is urged at the outset that the entire drainage law (chapter 51 of the Laws of 1895, with amendments, now known as "Chapter 21 of the Political Code, Revised Codes of 1899") is void. The reason assigned for this contention is that "under it taxes are levied without due process of law, contrary to amendment 14 of the federal constitution." No reasons are advanced, which, in our opinion, tend to show that assessments authorized by the act in question are vulnerable to the objection urged. If we understand counsel's position, it is that the statute does not accord to persons whose lands are subjected to assessment a sufficient hearing. In this counsel is in error. Before any assessment authorized by this act becomes final, it is subject to review upon notice. Sections 1451 and 1452 provide for such review, and that it shall be upon notice of the time when and place where the review is to be had. It is true, several acts are required to be done by the drain commissioners prior to the assessment and hearing. These include an inspection of the route by the drain commissioners, a survey of the same, the making of the specifications, plats, and profiles, contracts for the right of way, and the order establishing the drain; all of which are done without a hearing. These steps, however, are altogether preliminary, and do not, in themselves, impose any burden upon the landowner. The question as to what lands shall be subjected to assessment and what proportion of the burden each tract shall bear is determined later, and upon notice. It is well settled that, where provision is made "for notice to and hearing of each proprietor at some stage of the proceedings upon the question of what proportion of the taxes shall be assessed upon his land, there is no taking of his property without due process of law." McMillen v. Anderson, 95 U.S. 37, 24 L.Ed. 335; Davidson v. City of New Orleans, 96 U.S. 97, 24 L.Ed. 616; Hagar v. Reclamation Dist No. 108, 111 U.S. 701, 4 S.Ct. 663, 28 L.Ed. 569; Spencer v. Merchant, 125 U.S. 345, 8 S.Ct. 921, 31 L.Ed. 763; Wilson v. City of Salem (Or.) 34 P. 9. The rule announced by Mr. Justice Miller in Davidson v. City of New Orleans, supra, and approved in Hager v. Reclamation Dist. No. 108, supra, is: "That whenever, by the laws of a state, or by state authority, a tax, assessment, servitude, or other burden is imposed upon property for the public use, whether it be of the whole state or of some more limited portion of the community, and those laws provide for a mode of confirming or contesting the charge thus imposed in the ordinary courts of justice, with such notice to the person or such proceeding in regard to the property as is appropriate to the nature of the case, the judgment in such proceeding cannot be said to deprive the owner of his property without due process of law, however obnoxious it may be to other objections." In State v. Certain Lands in Redwood Co. (Minn.) 42 N.W. 473, Mitchell, J., in answering a contention "that in proceedings in the exercise of the taxing power the property owner is entitled to notice, and to be heard in each preliminary step of the proceedings pari passu with their progress," said: "We know of no case where it was ever held that a party was entitled to notice of and to be heard in each step in tax proceedings as it is taken. We doubt whether any tax law ever provided for any such thing. The principle running through all the cases is that a law does not infringe upon the constitutional provision under consideration if the property owner has an opportunity to question the validity or amount of the tax, either before that amount is determined, or in subsequent proceedings for its...