In re Organization of Bench Canal Drainage District

• Decision Date: 17 April 1916
• Docket Number: 839
• Citation: 156 P. 610,24 Wyo. 143
• Parties: IN RE. ORGANIZATION OF BENCH CANAL DRAINAGE DISTRICT. v. HART, ET AL MULLEN, ET AL.
• Court: Wyoming Supreme Court

156 P. 610

24 Wyo. 143

IN RE. ORGANIZATION OF BENCH CANAL DRAINAGE DISTRICT.

MULLEN, ET AL. v. HART, ET AL

No. 839

Supreme Court of Wyoming

April 17, 1916

ERROR to the District Court, Big Horn County; HON. CHARLES E WINTER, Judge.

Proceedings had upon objections filed with the confirmation of the report of commissioners made in connection with the organization of the Bench Canal District following an order confirming the report, Iowa M. Mullen and other remonstrators bring error. The nature of the proceedings and other material facts are set forth in the opinion.

Affirmed.

E. E Enterline and Thomas M. Hyde, for plaintiff in error.

Chapter 95, Laws 1911, is unconstitutional. Even assuming that the entire cost of construction cannot exceed the assessment for benefits, additional assessments for cost of construction may be made by commissioners with the approval of the court without notice to the land owner affected thereby, and may be collected as the original assessments. (See Section 74.) Assessments are made a lien upon the land. (Section 64.) Five assessments are provided for; first, damages to land; second all benefits to land; third, cost of construction; fourth, unequal benefits to land; fifth, special benefits to corporation. These assessments are all made by the court without a jury and directed to be paid in not more than fifteen installments. There is no restriction as to the amount of assessments or benefits and apparently cost of construction may exceed the assessment of benefits. The objectionable feature is that additional assessments for the cost of construction, where the first assessment is too small, may be made without notice, a provision in conflict with our Constitution. (Const. of Wyo., Art. 1, Secs. 6 and 32; Argyle, et al. v. Johnson, 118 P. 487; Sterritt v. Young, 14 Wyo. 159, 82 P. 946; Stuart v. Palmer, 74 N.Y. 183, 30 A. R. 289.) The case of Sterritt v. Young condemned the placing of the burden upon land without giving the owner the right to be heard. Stuart v. Palmer is there cited as a leading case upon the subject. The facts involved in the New York case are analagous. The case of Stone v. Little Yellow Irrigation District (Wis.) 95 N.W. 405, was relied upon below in defense of the law and of the contention made that there is no occasion to have any further hearing after the first hearing. The Wisconsin act was not set forth in the opinion, but it is difficult to observe any distinction between the first assessment for construction and subsequent assessments to complete construction. The provisions of Section 74 authorizing other assessments without notice so permeate the entire act as to render it unconstitutional. The iniquity of this section was recognized by the legislature of 1915, which by amendment provided for notice, but the amendment cannot have a retroactive effect. Eight of the remonstrators did not petition for the organization of the district, but were brought in and their lands were included in the commissioner's report; being so brought in they were obliged to submit questions raised in their remonstrance to the court without a jury. Lands outside receiving benefits may be brought in on notice, but if they remonstrate they have a right of trial by jury upon assessment of benefits made by commissioners. (Sections 85 to 91.) The owners of land within the district are required to submit objections to the court without the intervention of the jury. (Sections 76 and 77.) Owners brought in by the commissioners must submit their objections to the court, but unless brought in after the formation of the district, may have the same objections tried by a jury. This is obnoxious to the uniform operation clause of the Constitution. (Art. 1, Section 34; State v. Bargus, 53 O. S. 94, 53 A. S. 628; State v. Ellet, 47 O. S. 90, 21 A. S. 772.) Lands of plaintiffs in error naturally drain in opposite direction or into Dry Creek and are not benefited by the system and cannot be legally assessed. (Beals v. James (Mass.) 54 N.E. 245; Blue v. Wentz (Ohio) 43 N.E. 493.) The value of our lands will not be enhanced by the system. The evidence offered as to public welfare and public health is unworthy of consideration. Judge Tidball at the first hearing fixed the value of lands with reference to their value before and after the installation of the system, but Judge Winter later disregarded this rule and apparently established an arbitrary valuation upon which to base assessment which was supported by evidence. It was error to admit the testimony of the absent witness Kelley given at a former hearing, but on different issues arising in the proceeding; the finding that $ 3,000.00 had been properly expended in the establishment of the district was erroneous and not supported by the evidence. It was error to tax the costs to remonstrators as there is no statutory authority therefor.

Raymond B. West and E. E. Lonabaugh, for the Drainage District.

If there is any merit in the objections raised to Section 74 of the act, it is cured by the amendment of March 5th, 1915. The constitutional question referred to is a moot question, as the sections objected to have no bearing upon this appeal; the proceedings have not advanced to a point involving the sections complained of and the question of their validity is unnecessary to the disposition of this case. (8 Cyc. 798; 6 R. C. L. 76; Platte Land Co. v. Hubbard (Colo.) 69 P. 514; Hart v. Smith, 64 N.E. 661; Dubuque, &c. R. R. Co. v. Diehl, 21 N.W. 117; State v. Curler (Nev.) 67 P. 1075.) The cases cited in support of criticisms of Section 74 are not in point as will be observed from an examination of the facts involved in those cases. Due process of law does not require a land owner to a hearing at every stage of the procedure. (Re. Bond of Irrigation District (Cal.) 14 L. R. A. 755; Oliver v. Monona (Iowa) 90 N.W. 510; Dodge County v. Acum (Neb.) 85 N.W. 292.) Section 74 is adopted from Wisconsin and its counterpart was construed in Stone v. Irrigation District, supra. The Wisconsin construction is binding. (Crumine v. Reynolds, 13 Wyo. 111, 78 P. 402.) The provision is constitutional. (Meggett v. Eau Claire, 81 Wis. 332, 51 N.W. 566; People v. Chapman, 127 Ill. 387, 19 N.E. 872.) If additional assessments are levied notice is to be served as required by Chapter 155, Laws 1915. Laws applying to distinct classes alike do not conflict with the uniform operation clause of the Constitution. (Edmonds v. Herbrandsom, 50 N.W. 970, 14 L. R. A. 725; State v. Ellet, cited by remonstrators and note; Ladd v. Holms, 66 P. 714; State v. Woodman, 67 P. 1118; State v. Schlitz (Tenn.) 71 Am. St. Rep. 941.) The organization of a drainage district is a special proceeding and a jury trial may not be demanded as a matter of right. (M. E. Church v. Erie, 24 Cyc. 128; Warren v. France, 3 Wyo. 273; Light v. Canadian Co. Bank, 37 P. 1075; First National Bank of Rock Springs, 9 Wyo. 172.) Being a special proceeding the legislature may provide a jury for one class and withhold it from another. (State v. Ellet, supra; State v. Terre Haute, 14 L. R. A. 566.) The methods followed in assessing benefits were fair and in accordance with the statute. (Chapter 95, Laws 1911.) A finding on conflicting evidence will not be disturbed. (Samuel v. Thomas, 149 P. 395.) The evidence given by Kelley at a former hearing was properly admitted. (Jones on Evi., Sec. 683.) The finding that $ 3,000.00 was expended in the organiation of the district is supported by evidence and authorized by statute. (Laws 1911, Section 63.) It was proper to assess the costs against the remonstrators. Section 4647, Comp. Stats. 1910, governs proceedings of this character.

BEARD, JUSTICE. POTTER, C. J., concurs. SCOTT, J., being ill, did not sit, or participate in the opinion.

OPINION

BEARD, JUSTICE.

The Bench Canal Drainage District is a Drainage District organized for the purpose of draining certain lands in Big Horn county, under the provisions of Chapter 95, S. L. 1911 entitled, "An Act for the formation and organization of drainage districts, and conferring certain powers thereon." The organization of the district appears to have been proceeded with under the provisions of said chapter, the preliminary report of the commissioners provided for by Section 27 of said chapter made and approved in accordance with Section 34. The journal entries prior to May 16, 1914, have not been brought up, but it appears by an order of that date that the report of the commissioners provided for in sections 39 to 51, inclusive, had theretofore been filed, that remonstrances against the approval of the report had been made, a hearing had and a decision rendered that day, as of the date of May 19, 1913, by which order the report of the commissioners was disapproved and the report referred back to the commissioners for modification and amendment. That on September 2, 1914, the commissioners filed an amended and supplemental report, to which the plaintiffs in error, Iowa M. Mullen, J. O. Neff, Charles Meyers, Rose M. Newcomer, D. A. Redmon, Charles Olson, William Hodson, William Peper, John Wamhoff, Herman Ahlgrim, Christian Jensen, H. G. Stearns and H. C. Teyler (and others not appealing) filed their remonstrances against the approval of said report. (The above named Christian Jensen, one of the plaintiffs in error, does not appear to have been one of the remonstrators.) The matter came on for hearing and was heard December 1, 2 and 3, 1915, and was by the court taken under advisement; and on February 20, 1915, an order was entered confirming said report, and overruling and dismissing the objections and remonstrances of the remonstrators, and rendering judgment against them for costs. From that order the above named remonstrators bring the matter...