In re Dist.

• Decision Date: 31 December 1915
• Docket Number: No. 1782.,1782.
• Citation: 154 P. 382,21 N.M. 286
• Parties: IN RE DEXTER-GREENFIELD DRAINAGE DIST.
• Court: New Mexico Supreme Court

21 N.M. 286

154 P. 382

IN RE DEXTER-GREENFIELD DRAINAGE DIST.

No. 1782.

Supreme Court of New Mexico.

Dec. 31, 1915.

Syllabus by the Court.

Section 82, c. 84, Laws 1912 (section 1958, Code 1915), construed, and limited, in its application to such persons as have been assessed for the cost of construction of works of a drainage district, and, as so construed, held not to be unconstitutional as violative of section 16 of article 4 of the Constitution, which prohibits the Legislature from embracing more than one subject in a bill.

Chapter 84, Laws 1912 (sections 1877-1958, Code 1915), which provides for the organization of drainage districts through the courts, held not to be unconstitutional as violative of section 1 of article 3 of the Constitution, which provides that no officer charged with the exercise of powers properly belonging to one of the three departments of the state government shall exercise any of the powers properly belonging to either of the other departments, except as otherwise in the Constitution provided or permitted, the duties imposed by the act being held to be judicial in character, and not legislative or executive; nor unconstitutional as violative of section 5 of article 5 of the Constitution, which provides for the nomination, and by and with the consent of the Senate, the appointment by the Governor of all officers whose appointment or election is not otherwise provided for, the commissioners of drainage districts being held not to be of the class contemplated by the section; nor unconstitutional as conferring upon the courts the powers of taxation, the duty and power of approving and confirming assessments for benefits in drainage districts being held not to be the power of taxation.

Said chapter held not to be violative of section 6 of article 11 of the Constitution, which provides that all domestic corporations shall be organized by and through the State Corporation Commission; drainage districts being held to be public corporations, and of a class not comprehended by the section of the Constitution.

Said chapter held not to be violative of section 20 of article 2 of the Constitution, which prohibits the taking of private property for a public use without just compensation.

Section 35 of chapter 84, Laws 1912 (Code 1915, § 1911), held to give the right of appeal to this court from the findings of the district court in regard to the required signatures of the petition for the organization of a drainage district within 30 days after the same are filed and, consequently, to cut off the right thereafter to question such findings; such findings being findings of fact upon which the court assumes to act.

A question not presented to the trial court will not be considered here.

Appeal from District Court, Chaves County; McClure, Judge.

Jacquez Michelet filed a remonstrance to the report of the commissioners of the Dexter-Greenfield Drainage District for assessments. The remonstrance was overruled, and he appeals. Affirmed.

Dye & Mathews, of Roswell, for appellant. Reid & Hervey and George S. Downer, both of Roswell, for appellee.

PARKER, J.

This is an appeal from an order of the district court of the Fifth judicial district within and for the county of Chaves, overruling the remonstrance of the appellant, Jacquez Michelet, to the report of the commissioners of the Dexter-Greenfield drainage district upon assessments for benefits, damages, and costs of construction in said district theretofore filed in said court.

There are five assignments of error, all of which seem to be relied on by the appellant, attacking the constitutionality of what is known as the drainage law of New Mexico, being chapter 84 of the Laws of the Legislative Assembly, approved June 14, 1912, set forth in Code 1915 as sections 1877 to 1958, inclusive, and also the refusal of the court to allow the appellant to submit evidence tending to prove that the original and amended petitions filed in said court, initiating the proceeding for the establishment of this drainage district, were not signed by a majority of the adult owners of lands within the proposed district, not by adult owners representing one-third in area of the lands situated therein. We will consider these assignments of error in the order in which they appear in the assignments of error on file in this cause.

[1] 1. It is insisted that the drainage act is unconstitutional and void, in that it contravenes section 16 of article 4 of the Constitution by embracing within itself two separate and distinct subjects. This section provides that the subject of every bill shall be clearly expressed in its title, and no bill embracing more than one subject shall be passed, except general appropriation bills, and for the codification and revision of the laws. This assignment of error proceeds upon the theory that section 82, providing that any persons, firm, corporation, or association may exercise the right of eminent domain, and can take and acquire land and right of way for the construction, operation, and maintenance of a drainage ditch in the manner provided by law for the condemnation and taking of property in the state of New Mexico for railroad, telegraph, and other public purposes, is a separate and distinct subject from the remainder of the act, to wit, the organization and operation of drainage districts, and conferring additional powers on certain officers, and providing for the issuing of bonds, and levying assessments on lands benefited, etc., as set forth in the title of the drainage act. It is argued by the appellant that this section is an unrestricted grant of the right of eminent domain, without regard to its connection with any drainage district as provided for in the preceding sections of the act, and that it may be extended to cases not only for private drains, but to drains for other than agricultural purposes, as restricted by the general provisions of the drainage act. We do not deem it necessary to discuss one of the answers which the appellee makes to this proposition, to wit, that, although an act may include two distinct subjects, the whole act shall not be declared void if it is possible from an inspection of the act itself to determine which part of the act is void, and which is valid, because in our opinion section 82, when construed in the light of the remaining provisions of the act, does not embrace a different or distinct subject from such provisions. If this were a proceeding to review a judgment granting the right of condemnation to a private drain, or to a drain for other than agricultural purposes, there might be some force to the appellant's contention; but our opinion is that this section, in view of section 79 of the drainage act, which contains a direct reference to section 82, was intended by the Legislature to confer this power, not upon private drainage systems or for purposes other than agriculture, but upon the individual owners of lands embraced within a drainage district, as provided for in the drainage act. Section 79 of the drainage law provides, in substance, that the owner of any land that has been assessed for drainage, as provided in the drainage act, shall have a right to use the drain as an outlet for lateral drains, and that if his land is separated from such drain by the land of others, and he is unable to agree upon the terms upon which he may construct his lateral across such land, he may acquire a right of way by condemnation as provided by section 82. When the act is so construed, it constitutes an important and vital part of the general plan of drainage, as outlined by the Legislature, and does not constitute a separate and distinct subject. We understand the rule to be that, in cases of this kind, that construction will be adopted which would sustain the constitutionality of the law, and confine the operations of the objectionable section to the general scope of the act. Lewis' Sutherland on Stat. Cons, vol. 1 (New Ed.) § 298; Northup v. Hoyt, 31 Or. 524, 49 Pac. 754; Duke v. O'Bryan, 100 Ky. 710, 39 S. W. 444, 824.

[2] 2. The appellant's principal contention is based upon his second assignment of error, which is that the drainage law contravenes section 1 of article 3 of the state Constitution, by charging the district courts and the judges thereof with the exercise of powers properly belonging to the legislative and executive departments of the state government.

This section is the usual constitutional provision that no person, or collection of persons, charged with the exercise of powers properly belonging to one of the three departments of government, shall exercise any power properly belonging to either of the others, except as otherwise expressly directed in the Constitution.

The argument of appellant is that this law requires the district court to organize drainage districts, to appoint commissioners and remove them, and appoint their successors, fix their compensation, and make and confirm assessments against lands included in the drainage districts, which the appellant contends are executive or ministerial duties. The principal case cited by appellant is Tyson v. Washington Co., 78 Neb. 211, 110 N. W. 634, 12 L. R. A. (N. S.) 350, wherein the court denied the power of the Legislature to provide a right of appeal from the action of the board of county commissioners in establishing a drainage district, upon the ground that the same was not conducive to the general convenience and public welfare. A reference to this case will reveal the fact that the drainage act referred to was an act in which a Legislature had committed the general procedure of organizing a drainage district to the board of county commissioners, and the court held that, inasmuch as the Legislature had seen fit to confer this power upon the board of county commissioners, it became a ministerial duty and not a judicial one, and the right of appeal, standing separate and alone in such legislation,...