Lien v. Board of County Commissioners of Norman County

• Decision Date: 29 May 1900
• Docket Number: 12,143 - (245)
• Citation: 82 N.W. 1094,80 Minn. 58
• Parties: IVER LIEN and Others v. BOARD OF COUNTY COMMISSIONERS OF NORMAN COUNTY
• Court: Minnesota Supreme Court

82 N.W. 1094

80 Minn. 58

IVER LIEN and Others v. BOARD OF COUNTY COMMISSIONERS OF NORMAN COUNTY

Nos. 12,143 - (245)

Supreme Court of Minnesota

May 29, 1900

From an order of the board of county commissioners of Norman county establishing a drainage ditch, and assessing damages and benefits, Iver Lien and others appealed to the district court for that county. In the district court the appeal was heard before Watts, J., and a jury, which rendered a verdict sustaining the action of the commissioners and determining damages and benefits. From an order denying a motion for a new trial, appellants appealed to the supreme court. Affirmed.

SYLLABUS

Drainage of Wet Lands -- Laws 1887, c. 97.

Laws 1887, c. 97, being an act providing for the drainage of wet and swampy lands in the interests of the public health convenience, and welfare, held valid as a proper exercise of the police power.

Drainage of Wet Lands -- Laws 1887, c. 98.

Said chapter was not repealed by implication by Laws 1887, c. 98. Both acts were intended by the legislature as independent statutes.

Title of Act -- Subject.

If the subject of an act of the legislature, as stated in the title be sufficiently broad and comprehensive to indicate the general character and purpose of the act, there is a sufficient compliance with the constitutional requirement that the subject of each act of the legislature shall be expressed in its title.

Title of Act -- Laws 1887, c. 97.

The title to Laws 1887, c. 97, aforesaid, held a sufficient compliance with the constitutional requirement.

Assessment of Cost.

It is competent for the legislature, in the enactment of laws providing for public improvements in the interests of the public health, comfort, and convenience, to provide that the cost and expense of such improvements be assessed against lands benefited and improved thereby, and chapter 97 aforesaid is not open to the objection that such assessment is unequal taxation.

H. Steenerson and W. E. Rowe, for appellants.

So far as any public purpose is concerned this act is inoperative. The enabling of owners of lands to drain and reclaim when the same cannot be done without affecting the lands of others is a private object for which neither the power of eminent domain nor the police powers nor the taxing powers of the government can be exercised. The legislature cannot take the property of one and confer it upon another for merely a private use. Miller v. Troost, 14 Minn. 282 (365); Bankhead v. Brown, 25 Iowa 540; In re St. Paul & N. Pac. Ry. Co., 34 Minn. 227; Mills, Em. Dom. § 10, et seq.; Logan v. Stogsdale, 123 Ind. 372; Gifford v. Shroer, 145 Ind. 572; Deisner v. Simpson, 72 Ind. 435; Anderson v. Kerns, 14 Ind. 199; Tillman v. Kircher, 64 Ind. 104; Chambers v. Kyle, 67 Ind. 206; McKinsey v. Bowman, 58 Ind. 88; Fleming v. Hull, 73 Iowa 598; Jenal v. Green Island, 12 Neb. 163; Donnelly v. Decker, 58 Wis. 461; In re Theresa, 90 Wis. 301. The whole cost of the improvement, as well as the maintenance, is required to be assessed against the lands benefited in proportion to such benefits. It is an "assessment" for local improvement. Such an assessment is authorized by Const. art. 9, § 1, in case of municipal corporations, but the board of county commissioners is not a municipal corporation. 1 Dillon, Mun. Corp. § 22. The act authorizes the taxing, not according to the rule of uniformity, but according to the benefits conferred, and is void. State v. District Court, 33 Minn. 235, 243. The act is void for conflict with Const. art. 4, § 27, for the reason that the subject is not expressed in the title. Duke v. O'Bryan, 100 Ky. 710; Cooley, Const. Lim. 181; Mewherter v. Price, 11 Ind. 199; Sutherland, St. Const. §§ 90, 102; Simard v. Sullivan, 71 Minn. 517; State v. Sullivan, 73 Minn. 383. See also State v. Sullivan, 72 Minn. 126; Palmer v. Bank of Zumbrota, 72 Minn. 266, 275; Winona & St. P.R. Co. v. Waldron, 11 Minn. 392 (515). In order to make the violation of the constitution still more flagrant the legislature enacted Laws 1899, c. 347, which seeks to amend sections 1 and 2 of the act of 1887 by providing for the utilizing of rivers and other natural water courses in the construction of drains and changing the channels of natural water courses. This cannot be done under the original title. The act in question is superseded and repealed by Laws 1887, c. 98. A statute revising the subject-matter of a prior act, and evidently intended as a substitute for it, operates as a repeal. Rundlett v. City of St. Paul, 64 Minn. 223; 23 Am. & Eng. Enc. 485.

The evidence shows that the improvements accomplished by the construction of this ditch would be of a private nature. Where the benefit to be derived from the construction of a proposed drain is purely private, the landowner cannot be assessed against his will for the construction of such ditch. Donnelly v. Decker, supra; In re Theresa, supra; Gifford v. Shroer, supra; Cooley, Const. Lim. 665, 741.

Peter Sharpe and W. W. Calkins, for respondent.

It would be impossible for a situation to arise in which a piece of land could be assessed for more than actual benefits, and therefore those cases which hold that where a law makes an assessment for more than actual benefits on land it is unconstitutional, as unequal taxation, do not apply. Wurts v. Hoagland, 114 U.S. 606; Bryant v. Robbins, 70 Wis. 258; Fleming v. Hull, 73 Iowa 598; Dowlan v. County of Sibley, 36 Minn. 430. The title of the act is sufficient. Cooley, Const. Lim. (6th Ed.) 172; Hall v. Slaybaugh, 69 Mich. 484; State v. Cassidy, 22 Minn. 312; State v. Klein, 22 Minn. 328; Finnegan v. Noerenberg, 52 Minn. 239; Boyle v. Vanderhoof, 45 Minn. 31; State v. Hickman, 63 N.J.L. 666; McEldowney v. Wyatt, 44 W.Va. 711; State v. Ream, 16 Neb. 681. See Sheehan v. Flynn, 59 Minn. 436; Oftelie v. Town of Hammond, 78 Minn. 275; Thompson v. County of Polk, 38 Minn. 130; Anderson v. County of Meeker, 46 Minn. 237; Curran v. County of Sibley, 47 Minn. 313; Curran v. Board of Co. Commrs., 56 Minn. 432; Witty v. Board of Co. Commrs., 76 Minn. 286; Dressen v. Board of Co. Commrs., 76 Minn. 290; Continental v. Phelps, 47 Mich. 299. Laws 1887, c. 97, is not superseded by Laws 1887, c. 98. 23 Am. & Eng. Enc. 485.

OPINION

BROWN, J.

This is a proceeding for the establishment and construction of a ditch under and pursuant to the provisions of Laws 1887, c. 97 (G.S. 1894, § 7793, et seq.). A petition in due form was presented to the board of county commissioners of Norman county, under which due proceedings were had, which resulted in an order laying out and establishing the ditch as therein prayed for. From such order an appeal was taken to the district court, where, after trial by the court and a jury, a verdict was rendered sustaining the action of the commissioners. From an order denying a motion for a new trial, this appeal was taken.

The route of the proposed ditch extends through lands devoted exclusively to agricultural purposes, and is some sixteen miles in length; its starting point being in the town of McDonaldsville, Norman county, and ending at a point north and west therefrom, near the Red River of the North. The petition alleges, among other things the following facts:

"First. That the proposed ditch herein petitioned for is necessary, for the following reasons: (a) That the lands for several miles on each side of the proposed ditch, in the townships of Hegne, McDonaldsville, Anthony, Hendrum, and Halstad, in said county of Norman, are fertile farming lands and largely under cultivation; that in wet seasons, and especially in times of flood on the Wild Rice river, said lands are liable to overflow from flood waters from the Wild Rice river, and from surface waters from the surrounding country, drowning out and destroying the crops of large areas of valuable lands, and rendering such lands practically worthless; that during said wet seasons the water spreads out over a large territory, and in warm weather it becomes stagnant, foul and polluted, creating a great stench, and becoming dangerous to the health and life of the community residing in the vicinity. (b) That the route of said ditch is practicable, and such ditch will draw off water in wet seasons from a large territory tributary thereto, conducing to the public convenience, health, and welfare. (c) That the benefits to be derived from the construction of such ditch will be vastly greater than the total costs thereof, including any damages that it will be necessary to award by reason thereof."

The route of the proposed ditch is specifically pointed out and described, and the several tracts of land through which it will extend are given. The existence of the facts so set up in the petition is essential to the right and power of the commissioners to act. That they do exist is established by the verdict of the jury. None of the evidence taken on the trial is returned to this court. Counsel for appellants do not question the regularity of the proceedings or the sufficiency of the evidence. They attack the constitutionality of the law under which the proceedings are conducted, and assign some errors in the refusal of the trial court to give some requests for instructions, which, because the evidence is not before us, are of minor importance. They contend that the statute is unconstitutional upon the grounds and for the reasons (1) that it authorizes the taking of private property for a private use; (2) that it provides for the levy of taxes which are not uniform or based upon the value of the property; (3) that the subject of the act is not expressed in its title; (4) that the act is void, because it is superseded by Laws 1887, c. 98. These constitutional objections present the principal questions in the case.

The authority...