Martin v. Tyler

• Decision Date: 11 September 1894
• Citation: 4 N.D. 278,60 N.W. 392
• Parties: MARTIN v. TYLER et al., Drainage Commissioners. SAME v. NICHOLS, Treasurer, et al. SAME v. STAFFORD et al., County Commissioners.
• Court: North Dakota Supreme Court

4 N.D. 278

60 N.W. 392

MARTIN

v.TYLER et al., Drainage Commissioners.

SAME

v.NICHOLS, Treasurer, et al.

SAME

v.STAFFORD et al., County Commissioners.¹

Supreme Court of North Dakota.

Sept, 11, 1894.

Syllabus by the Court.

1. A statute was entitled “An act to provide for establishing, constructing and maintaining drains in this state.” Laws 1893, c. 55. It provided, inter alia, for the appointment of a drain commission, and vested in it the powers of the act. It provided for levying special assessments to pay for the cost of constructing drains. It provided for the issuance of county bonds to meet such expenses, and for the creation of a sinking fund to pay such bonds. Held not vulnerable to the constitutional objection that the bill embraced more than one subject, or that the subject was not expressed in the title.

2. Creating such drain commission, and vesting in it the powers of the act, did not violate section 172 of the constitution, which declares that the “fiscal affairs” of the county shall be transacted by a board of county commissioners.

3. Under section 14, art. 1, of the constitution of North Dakota, which reads: “Private property shall not be taken or damaged for public use without just compensation having been first made to, or paid into court for the owner, and no right of way shall be appropriated to the use of any corporation, other than municipal, until full compensation therefor be first made in money or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived,”- held: That private property cannot be taken for public use for right of way without just compensation in money being first made to. or paid into court for, the owner, even though it is sought to be taken by a municipal corporation.

4. Further, payment by an order drawn by the drain commissioners upon the drainage fund, which order the statute declares “shall be deemed a sufficient security for the amount thereof,” was not such payment as the constitution required.

5. Further, that since the statute failed to provide compensation, as required by the constitution, the power of eminent domain could not be exercised under the statute; and, shorn of the provisions relating to the exercise of the right of eminent domain, the statute becomes so incomplete and ineffectual that we cannot presume that the legislature would have passed it as thus emasculated; hence the entire statute would fail.

6. Further, that a provision in the statute that the warrant for damages, in case the owner was unknown, should be deposited with the county auditor for his use, was a violation of the constitutional provision that required compensation to be paid into court.

7. Further, that, when a municipal corporation sought to take plaintiff's property for public use, he was not entitled to have the compensation ascertained by a jury.

8. The drainage statute provides that the cost of the drain shall be apportioned by the drain commissioners between the cities and townships and property benefited by the drain, and provides, further, that such cost, so apportioned, shall be entered upon the tax list, and collected in one year; but the county commissioners may issue bonds of the county, running not more than 20 years, in sufficient amount to cover costs of drains in such county, the proceeds of the bonds to go direct to the drain fund, to pay the costs of such drains. In that event the assessment must be divided into as many parts as the bonds have years to run, and one part only be collected in each year, the collections so made to constitute a sinking fund to reimburse the county for the principal and interest paid on such bonds. Held, that such transaction constitutes a loan of the credit of the county to the corporations and individuals primarily and ultimately liable, and, as such, is a violation of section 185 of the constitution, and the law is to that extent void.

Appeal from district court, Cass county; William B. McConnell, Judge.

Three actions by Terence Martin-one against Evan S. Tyler and others, as drainage commissioners of Cass county, N. D.; one against George Nichols, as treasurer of such county, and another; and the other against H. L. Stafford and others, county commissioners of such county-for injunctions. From a judgment in each case overruling a demurrer to the answer, plaintiff appeals. Reversed.Miller & Resser and Newman, Spalding & Phelps, for appellant. R. M. Pollock, Dist. Atty., and Chas. A. Pollock, for respondents.

BARTHOLOMEW, C. J.

These cases have been submitted together. They are brought by the same plaintiff against different defendants,but to accomplish one purpose, and that purpose is to relieve plaintiff from the payment of a certain assessment laid upon his land, under the drainage law hereafter mentioned The first action is against the drain commissioners of Cass county, and asks that they be perpetually enjoined from constructing a certain drain in said county, which they had caused to be established and partially constructed, and has assessed a certain per cent of the cost of said drain against the property of plaintiff, which said commissioners declared to be benefited by the construction of such drain. The second action is against the treasurer of said county and the holder of a certain warrant issued by the drain commissioners in payment of damages sustained by the construction of said drain. An injunction is sought perpetually restraining the payment of such warrant. The third case is against the county commissioners of said county, and seeks to enjoin them from issuing bonds of said county to pay for the construction of the drain in question and other similar drains, which it was alleged they were about to do. The answers in the several cases alleged, in substance, strict compliance with the provisions of chapter 55, Laws 1893. A general demurrer to the answers was overruled, and the plaintiff appeals.

The case turns exclusively upon the question of the constitutionality of said chapter 55. The act is a general drainage law, and is largely copied from the Michigan drainage laws. From a financial standpoint, it is one of the most important statutes ever enacted in the state. Thousands of dollars have already been expended under the law, and the drains now in process of construction and in contemplation throughout the state will, if completed, cost many thousands more. It is of importance to the taxpayers that the validity or invalidity of the law be definitely settled, and at once. Many objections are urged against the law, and we deem it our duty to notice each of them. The statute is too long for reproduction here, but a synopsis of it, with quotations of portions, is absolutely necessary to an understanding of the rulings that we are required to make.

The act is entitled “An act to provide for the establishing, constructing and maintaining drains in this state.” The first part of section 1 reads: “Water courses, ditches and drains for the drainage of swamps, marshes and other low lands may be established, constructed and maintained in the several counties and townships of this state whenever the same shall be conductive to the public health, convenience or welfare, under the provisions of this act” The balance of the section defines a drain. Section 2 provides for the appointment by the county commissioners of three drain commissioners in each county, fixing their term of office at two years, and providing for their removal and for filling vacancies. Section 3 provides for their oath and official bond. Section 4 relates to drains in more than one county, and need not be further noticed here. Section 5 provides for the application by five or more freeholders, residing within proper limits, to the drain commissioners, for the establishment of a drain, and for an inspection of the ground by the said commissioners, and, if they so order, a preliminary survey by a competent surveyor, and for maps, with plans, specifications, and estimates, to be filed by said surveyor with the county auditor. Section 6 makes applicants liable for costs when drain not necessary, but, if commissioners determine train to be necessary, they shall proceed to establish the same. Section 7 reads as follows: “If, within twenty days after such determination, all of the persons on whose lands the proposed drain is to be placed shall not have executed a release of right of way and all damages on account thereof, the board of county drain commissioners shall appoint a time and place of hearing upon the application, which shall not be less than ten nor more than twenty days thereafter, and shall immediately make application to the district court of the county to ascertain the necessity for such drain and for taking private property for the use and benefit of the public for the purpose thereof, and the just compensation to be made therefor. Such application shall be made in writing, and shall describe the drain and the route and dimensions thereof, according to the survey, and shall state the facts which constitute the public necessity therefor and shall also state the time and place of hearing upon the application for such drain. The court to whom such application is made shall at once appoint a time for hearing and considering the same, and shall issue a citation to all persons whose lands are traversed by such drain to appear at the time appointed and he heard. with respect to such application, if they desire to do so, which citation shall be annexed to a copy of the commissioners' application to the court and served in like manner with other process of the said court.” Section 8 provides for personal service of citation upon owner or occupant of lands traversed by the drain, and service by posting in exceptional cases. Section 9 provides for the hearing in court upon the application, and...