Risty v. Chicago Ry Co Same v. Chicago St Ry Co Same v. Chicago, St Ry Co Same v. Northern States Power Co Same v. City of Sioux Falls Same v. Great Northern Ry Co

Decision Date01 March 1926
Docket NumberNo. 100,No. 99,No. 97,No. 95,No. 98,No. 96,95,96,97,98,99,100
Citation70 L.Ed. 641,46 S.Ct. 236,270 U.S. 378
CourtU.S. Supreme Court

[Syllabus from pages 378-380 intentionally omitted] Messrs. Benjamin I. Salinger, of Carroll, Iowa, and N. B. Bartlett and E. O. Jones, both of Sioux Falls, S. D., for appellants.

Mr. C. O. Bailey, of Sioux Falls, S. D., for appellees Chicago, St. P., M. & O. Ry. Co. and City of Sioux Falls.

Messrs. E. S. Stringer, of St. Paul, Minn., W. F. Dickinson, of Chicago, Ill., and Thomas D. O'Brien and Alexander E. Horn, both of St. Paul, Minn., for appellee Chicago, R. I. & P. Ry. Co.

Messrs. R. M. Campbell and John H. Roemer, both of Chicago, Ill., and Harold E. Judge, of Sioux Falls, S. D., for appellee Northern States Power Co.

Messrs. E. L. Grantham, of Aberdeen, S. D., and C. O. Bailey, of Sioux Falls, S. D., for appellee Chicago, M. & St. P. Ry. Co.

Messrs. Harold E. Judge, of Sioux Falls, S. D., and F. G. Dorety, of St. Paul, Minn., for appellee Great Northern Ry. Co.

Mr. Justice STONE delivered the opinion of the Court.

Separate suits were brought by the several appellees, in the United States District Court for South Dakota, to enjoin the county commissioners, the auditor, and the treasurer of Minnehaha county, South Dakota, from making any apportionment of benefits or assessments of costs affecting the property of the several appellees, for the construction or repair of a drainage system in the area within the county embraced in a project known as 'drainage ditch No. 1 and 2.'

In all of the suits, except No. 99, there was diversity of citizenship. In each it was alleged that an amount in excess of the jurisdictional requirement was in controversy, and in each it was alleged that proceedings purporting to be had under the South Dakota drainage statutes, with respect to the lands of the appellees, were unauthorized and void, and that those statutes and proceedings denied to appellees due process of law and the equal protection of the laws, in contravention of the Constitution of the United States. The suits were tried together and a decree was given for the plaintiffs by the District Court. Chicago, R. I. & P. R. Co. v. Risty, 282 F. 364. The Circuit Court of Appeals for the Eighth Circuit, on appeal, affirmed the decree (Risty v. Chicago, R. I. & P. R. Co., 297 F. 710), and the cases are brought here on appeal (Judicial Code, §§ 128, 241 (Comp. St. §§ 1120, 1218), before Act of February 13, 1925; Greene v. Louisville & Interurban R. R. Co., 37 S. Ct. 673, 244 U. S. 499, 508, 61 L. Ed. 1280, Ann. Cas. 1917E, 88). Petition for certiorari was denied, 45 S. Ct. 122, 266 U. S. 622, 69 L. Ed. 473.

The two courts below agree as to all material facts. We accordingly consider them here only so far as is needful to pass on questions of law. United States v. State Investment Co., 44 S. Ct. 289, 264 U. S. 206, 211, 68 L. Ed. 639.

In 1907 the board of county commissioners of Minnehaha county, acting under the Constitution and laws of the state, established 'drainage ditch No. 1,' extending from a point north of the city of Sioux Falls, thence south, and then to the east of Sioux Falls, 3 miles in all, to the Big Sioux River, into which it emptied. From the main ditch, a spur ditch was extended northwest to a point near the Big Sioux River, which from that point passes to the southwest and thence flows east, forming a loop about the principal part of the city of Sioux Falls, and finally flows through the city on its easterly side in a northeasterly direction.

In 1910 the board of county commissioners established drainage ditch No. 2, extending northerly from the north terminus of ditch No. 1 for a distance of 12 miles. The two ditches thus formed one continuous ditch, draining agricultural lands lying to the north of the city. Both ditches, and the assessment districts in connection with them, are conceded to have been lawfully established.

In 1916 the river broke through its banks into the area drained by the spur ditch, and uniting with the flood water flowing from the river through ditch No. 2, flooded the main ditch, No. 1, washed out and destroyed a spillway on ditch No. 1, and in its uncontrolled flow to the river caused extensive damage. There was danger that the river by its flow through the ditch would be diverted from its natural course, cutting off the city's water supply and causing other damage to the city and to individuals.

In August, 1916, a proceeding was instituted by petition to the board of county commissioners, purporting to be pursuant to statute, 'to reconstruct and improve drainage ditches Nos. 1 and 2 * * * and to pay therefor by an assessment upon the property, persons and corporations benefitted.' This proceeding resulted in resolutions of the commissioners purporting to establish 'drainage district No. 1 and 2' and providing for the construction of the proposed ditch. The location fixed for it however, was identical with that of the old ditches No. 1 and No. 2. The county commissioners then caused the previously established ditch No. 1 and ditch No. 2 to be diked, cleaned out, and widened and deepened at certain points; the river to be straightened, and the spillway to be reconstructed so as to continue and safeguard the flow of water through ditch No. 1 and ditch No. 2. The cost was approximately $255,000.

Proceedings were then had by the county commissioners for the assessment of benefits to defray the expenses thus incurred. The assessments of benefits were extended to areas not embraced in the assessment districts of ditch No. 1 and ditch No. 2, as previously established, and resulted in the assessment of benefits now complained of, made against all the appellees, some of whom did and some of whom did not own land within the area originally assessed for the establishment of ditch No. 1 and ditch No. 2. When the present suits were commenced, notice had been given to the appellees of a tentative assessment of benefits to their land, and of a proceeding to be had to equalize benefits before final assessments for the cost of construction.

Both courts below found that the drainage ditch No. 1 and 2 was not a new project, but was in fact identical with the previously established ditches No. 1 and No. 2; that no new or additional drainage was established, and that the only purpose of the proceedings was to provide for the maintenance and repair of the previously established ditches by assessing the cost on tracts not included within the area originally assessed for their construction. For these reasons, among others, both courts held that the proceedings had by the board of county commissioners to apportion and assess benefits on land outside the original drainage districts were unauthorized and void under the statutes of South Dakota. In this we think they were right.

Section 8458 of the South Dakota Revised Code of 1919 provides that the board of county commissioners 'may establish and cause to be constructed any ditch or drain; may provide for the straightening or enlargement of any water course or drain previously constructed, and may provide for the maintenance of such ditch, drain or water course. * * *'

Section 8476 provides that the powers conferred for establishing and constructing drains 'shall also extend to the include the deepening and widening of any drains which have heretofore been or may hereafter be constructed,' and that no proceedings shall be had under this section 'except upon notice and the other procedure prescribed herein for the construction of drains.'

The procedure prescribed by the South Dakota statutes embraces two distinct schemes or methods for carrying into effect the authority of the board of county commissioners. The one relates exclusively to the establishment and construction of proposed drainage; the other to assessments for further costs and maintenance of drainage already established. With reference to the establishment of proposed drainage, it is provided that the board shall act only on petition of a landowner affected by the 'proposed drainage' (section 8459) and upon the filing of the petition the board shall cause the 'proposed route' of the drainage to be inspected and, if necessary, surveyed (section 8460). It is required to hold a hearing on notice describing the proposed drainage (section 8461), and after hearing the drainage 'may be established' in accordance with the petition or the findings of the board (section 8462). After the establishment of the drainage, the board is required to determine 'the proportion of benefits of the proposed drainage,' and to fix a time and place for equalization of benefits, on notice describing the land affected by the 'proposed drainage,' and to state the proportion of benefits fixed for each tract, benefits being considered 'such as accrue directly by the construction of such drainage or indirectly by virtue of such drainage being an outlet for connection drains that may be subsequently constructed.' Section 8463. Following equalization of benefits as prescribed, the board is authorized to make an assessment against each tract, 'in proportion to the benefits as equalized,' for the purpose of paying damages and the cost of establishment, which are stated to include all the expenses 'incurred or to be incurred that in any way contributed or will contribute to the establishment or con- struction of the drainage. All assessments are made perpetual liens upon the tracts assessed. Section 8464.

The only provisions contained in the statutes for equalization of benefits are those found in the sections referred to, which have to do with the establishment of proposed drainage. By section 8477 all drains, when constructed, are in charge of...

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