Neal v. Vansickle

• Decision Date: 09 June 1904
• Docket Number: 13,592
• Citation: 100 N.W. 200,72 Neb. 105
• Parties: JOHN F. NEAL ET AL. v. WILLIAM VANSICKLE ET AL
• Court: Nebraska Supreme Court

100 N.W. 200

72 Neb. 105

JOHN F. NEAL ET AL. v. WILLIAM VANSICKLE ET AL

No. 13,592

Supreme Court of Nebraska

June 9, 1904

ERROR to the district court for Nemaha county: JOHN S. STULL JUDGE. Reversed.

REVERSED.

Neal & Quackenbush, for plaintiffs in error.

Edgar Ferneau, contra.

AMES C. LETTON and OLDHAM, CC., concur.

OPINION

AMES C.

In 1903 the legislature passed an act, chapter 116 of the laws, sections 1-19, article IV, chapter 89 of the Compiled Statutes (Annotated Statutes, 5561-5579), the purpose of which is expressed in its title as follows:

"An act to provide for the formation of drainage districts; for the reclamation and protection of swamp, overflowed, or submerged lands; to provide for the acquirement of rights of way, easements and franchises, or other property necessary to carry out the purposes of this act; to prescribe the course of procedure to be followed to accomplish such object; and to prescribe a penalty for the wilful and malicious injury or interference with the rights or property of said districts."

Pursuant to this act, thirteen persons owning contiguous tracts of land in Nemaha and Otoe counties, aggregating nearly 4,000 acres, joined in the execution of articles of association for the creation of a drainage district including said lands and also a large number of other tracts in said counties, the owners of which refused to join in such association. The articles thus adopted were filed as the act prescribes and presented to the district court for Nemaha county together with a prayer for an order or judgment establishing the association as a public corporation of the state in conformity to said act. It is not disputed that the entire procedure, including service of process upon the nonconsenting landowners, was in all respects such as is prescribed by sections 1 and 2 of the act for obtaining the judgment prayed for. Various objections were made by the persons refusing consent, but all united in one contention, namely, that the act mentioned is unconstitutional and void, and solely in consideration thereof the court dismissed the application. The moving parties bring the proceeding to this court by petition in error.

The record thus presents primarily and directly but two questions, namely, whether the drainage of large tracts, swamp and overflowed or submerged lands, is a subject of such public and general interest that the legislature may provide for it by general enactment, and, if so, whether such provision may include the creation of local political organizations to serve as agencies for the accomplishment of the desired end. If these questions are answered in the affirmative, it must, we think, be conceded that the method of creation or organization is a matter purely and exclusively of legislative discretion with which the courts have no power to intermeddle. It will not be contended that the courts have the right to dictate how road districts or school districts or townships or counties shall be created or organized, nor with what administrative powers or functions they shall be endowed, and, obviously, what is true of them in this respect is true of any other similar governmental agency that the legislature may see fit to call into being. The creation of such bodies is an act of sovereignty and the consent of the inhabitants, unless expressly required by constitutional enactment, has never been thought to be requisite. That the districts contemplated by the act are intended to be of a purely public and administrative character, is evident as well from the title as from the body of the law itself. Its officers are chosen by popular election and their powers, duties, compensation and terms of service are prescribed by the statute. The sources of its income are predetermined as are also the uses to which it may be applied, and the county treasurer is made the custodian of its funds, and his disbursement of them regulated as in case of other public moneys.

In our opinion, it is too late in the day to contend that the irrigation of arid lands, the straightening and improvement of watercourses, the building of levees and the drainage of swamp and overflowed lands for the improvement of the health and comfort of the community, and the reclamation of waste places and the promotion of agriculture, are not all and every of them subjects of general and public concern, the promotion and regulation of which are among the most important of governmental powers, duties and functions. Authorities to this effect are numerous, and of the highest character, and are so easily accessible that their recapitulation here would serve no useful purpose. They may be found collected in the opinion of the supreme court of Missouri in Mound City Land & Stock Co. v. Miller, 170 Mo. 240, 60 L. R. A. 190, 70 S.W. 721, and in an elaborate marginal note. We know of no recent authority to the contrary. The decision of this court in Jenal v. Green Island Draining Co., 12 Neb. 163, 10 N.W. 547, much relied upon by defendants in error, is not in conflict herewith. In that case, the body seeking to exercise the powers of eminent domain and of assessment and taxation, was a private corporation having officers and functionaries of its own choosing, governed by rules and regulations of its own devising, and enjoying the free disposition of its income. Such an organization is as unlike that now under discussion as can well be conceived of.

The foregoing conclusion, if sound, suffices for the disposition of the present proceeding, because nothing is here involved but the question of the validity of an organization created in the manner prescribed by the act of 1903, and the decision of that question does not...