Orr v. Allen

• Decision Date: 09 August 1917
• Docket Number: 134.
• Citation: 245 F. 486
• Parties: ORR v. ALLEN et al.
• Court: U.S. District Court — Southern District of Ohio

245 F. 486

ORR v. ALLEN et al.

No. 134.

United States District Court, S.D. Ohio, Western Division.

August 9, 1917

[Copyrighted Material Omitted]

Long Bell & Smith, of Piqua, Ohio, for plaintiff.

Brown &amp Frank and McMahon & McMahon, all of Dayton, Ohio, for defendants.

Before WARRINGTON, Circuit Judge, and COCHRAN and HOLLISTER, District judges.

HOLLISTER District Judge.

This action, brought by Louis H. Orr, a citizen of California, owner of real estate in the city of Piqua, Miami county, Ohio, and farming land in Miami county, against the defendants individually and as the board of directors of the Miami conservancy district, challenges the constitutionality, both with respect to the Constitution of Ohio and the Constitution of the United States, of the act of the General Assembly passed February 5, 1914, entitled, 'To prevent floods, to protect cities, villages, farms and highways from inundation, and to authorize the organization of drainage and conservation districts,' known by legislative direction as the 'Conservancy Act of Ohio.' ^[1]

The purpose of this legislation was to provide against and to prevent the recurrence of such a calamity as befell the inhabitants of the valley of the Great Miami river in March, 1913, growing out of an unprecedented flood in that river and its tributaries, resulting, not only in the loss of many lives and the destruction of property, but, by possible recurrence, threatening the well-being and prosperity of the inhabitants and owners of property in that valley for all time to come. The menace of future similar disaster was a cloud upon the health, happiness, and prosperity of one of the most thriving and promising sections of the state. So threatening was the situation that the General Assembly of Ohio gave expression to public sentiment, not only in the enactment of the provisions of this law with its appropriate title, but by declaring: ^[2]

'This act is hereby declared to be an emergency law, necessary for the immediate preservation of the public health and safety. Such necessity exists by reason of the inadequacy of the present drainage system of the state to carry off unusual rainfalls in a proper and safe manner, as shown by the disastrous floods of March, 1913, which may occur again at any time in the near future with a like unfortunate result in loss of life and property. The existing laws of the state are not adequate to meet this emergency.'

While it is true that knowledge of a recurrence of such a disaster resides only with Omniscience, yet the finite mind, with knowledge gained by experience and observation, is endowed with sufficient foresight to seek to prevent and to insure against, if possible, a similar calamity in the future. Whether such legislation is an exercise of police power, or was enacted under express constitutional authority, is not important, and we agree with Judge Wanamaker in what he says in that behalf; ^[3] for the amendment of the Constitution of Ohio adopted September 3, 1912, with seeming prescience declared: ^[4]

'Laws may be passed * * * to provide for the conservation of the natural resources of the state, including streams, lakes, submerged and swamp lands and the development and regulation of water power and the formation of drainage and conservation districts. * * * '

That it is in the power of the state to require local improvements to be made which are essential to the health, comfort, safety and prosperity of the community is not open to doubt, and for such purpose provision may be made for many such objects, including draining marshy and malarious districts, irrigating arid lands, and the construction of levees to prevent inundations, and the Legislature may prescribe the way in which the means to meet the cost of the authorized improvement shall be raised, whether by general taxation or by laying the burden upon the district specially benefited. ^[5]

The power of the state, unless restrained by provisions of the Constitution of the United States, as to the mode, form, and extent of taxation imposed to meet the cost, is unlimited, where the subjects to which it applies are within the state's jurisdiction. ^[6]

While no state conservancy act exactly like this has been passed upon by the Supreme Court of the United States, yet its general features and the method of operation under it have received the sanction of that court, ^[7] and the existence of the power has been affirmed in decisions too numerous to cite, though the method of its exercise has sometimes been successfully questioned, as being in contravention of some provisions of the Constitution of the United States.

While the existence of the emergency, as declared by the General Assembly, is not conclusive, ^[8] and the act itself provides how that question of fact may be raised, yet the opinion of the representatives of the people of Ohio has great weight. The act has been construed, and its validity, except as to certain clauses hereinafter referred to, has been upheld by the Supreme Court of Ohio, both from the view of the Constitution of Ohio and of the Constitution of the United States. ^[9] This was an affirmation of the original finding by the court of common pleas that the improvement contemplated was a public necessity, and that public safety, health, convenience and welfare would be promoted by the organization of the conservancy district substantially as prayed for in the petition authorized by the act to be filed in that court. While the views of the General Assembly and the decision of the Supreme Court are not conclusive upon the courts of the United States on the question of the public character of the use to which private property is to be appropriated and assessments made for the cost of public works, yet state action on the subject is accorded the highest respect. ^[10]

From what we have said, it clearly appears that we are of opinion that the land to be taken and the assessments for the cost of this improvement are for a highly important public service and use, and we are in entire accord with the views of the General Assembly and of the courts of Ohio on the subject, and also, on the general subject, with the views of the Supreme Court of Nebraska, ^[11] approved by the Supreme Court of the United States: ^[12]

'In our opinion it is too late in the day to contend that the irrigation of arid lands, the straightening and improvement of water courses, the building of levees and the draining 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.'

And we see no difference in principle between legislation such as this and legislation prescribing a system for reclaiming swamp lands, when essential to the health and prosperity of a community and laying the burden of doing it upon districts and persons benefited, or for draining low and marshy lands, or for irrigating large tracts of arid land, or for taking lands for public highways, or for constructing levees along the banks of rivers to prevent inundations. ^[13] In fact and in law, every substantial feature of this act as it is now before this court, so far as questions arising under the Constitution of the United States are concerned, has received the sanction of the Supreme Court of the United States in the cases referred to in the margin.

We have been content with referring to the volume of the Ohio Laws in which the act may be found, because its great length forbids detailed statement. A brief statement of the act and the parts particularly objected to may be made:

The court of common pleas of any county is authorized to establish conservancy districts for the purpose of preventing floods; of regulating streams and channels by changing, widening and deepening same; of reclaiming or of filling wet and overflowed lands; of providing for irrigation where it may be needed; of regulating the flow of streams; of diverting, straightening, widening, deepening and changing water courses; to build reservoirs, canals, levees, walls, embankments, bridges or dams, and to maintain, operate and repair any such construction; and to do all things necessary for the fulfillment of the purposes of the act. Before doing so, a petition shall be filed in the office of the clerk, signed either by 500 freeholders, or a majority of the freeholders, or by owners of more than half of the property in size, acreage or value within the limits of the territory to be organized into the district, and which petition may be signed by the governing body of any corporation within, or partly within, the proposed district, or by any city, or cities interested, in some degree, in the improvement. The petition shall contain, among other things, the statement of the necessity of the proposed work, and that it will be conducive to the public health, safety, convenience or welfare. Notice of the pendency of the petition and of the time and place of the hearing shall be given by publication and answers may be filed by objectors, and, when at issue, the case shall be advanced for hearing.

If the court is of opinion that the purposes of the act would be subserved by creating a conservancy district, the court shall, after disposing of all objections as justice and equity require by its recorded findings and adjudication of all questions of jurisdiction, declare the district organized and give it a corporate name. The court shall thereupon appoint three directors, whose duty it is to formulate a plan, including maps, profiles, etc., so as to describe the...