Ross v. The Board of Sup'rs of Wright County
| Decision Date | 13 July 1905 |
| Citation | 104 N.W. 506,128 Iowa 427 |
| Parties | FRANK ROSS, Appellant, v. THE BOARD OF SUPERVISORS OF WRIGHT COUNTY, IOWA, and S. A. KEELER, AUDITOR OF SAID COUNTY, Appellees |
| Court | Iowa Supreme Court |
Appeal from Wright District Court.--HON. W. D. EVANS, Judge.
CERTIORARI proceedings to prevent the assessment and collection of the cost of constructing a ditch pursuant to the provisions of chapter 2, title 10, of the Code, and acts supplementary thereto. The district court found for the defendants dismissed the petition, and plaintiff appeals.--Affirmed.
Decree affirmed.
Nagle & Nagle, for appellant.
C. F Peterson, D. C. Chase, and S. Flynn, for appellees.
Proceedings to procure the location and construction of the ditch were instituted by petition as required by the terms of the statute about March 13, 1903, and a bond to secure payment of costs and expenses was filed and approved. Thereupon the auditor placed a copy of the petition in the hands of an engineer, who made survey of the proposed improvement, and on August 16, 1903, reported the same to the board of supervisors, with his estimate of the costs of construction. Beginning on March 9, 1903, notice of the proposed improvement was served personally or by publication upon the owners of the lands through which the ditch was to be constructed that the matter would come up for hearing at the regular June, 1903, session of the board. Certain claims for damages having been filed, appraisers were appointed, who filed their report August 17, 1903. At the September, 1903 session of the board further consideration of the matter was postponed until November 12, 1903, at which time the ditch was established, and its construction ordered. Before any further proceedings were had in the matter, this court having held chapter 2 of title 10 of the Code to be unconstitutional, in that it undertook to provide for an assessment of the cost of the ditch in part against the lands in the vicinity not intersected by or bordering upon such ditch, without any provision for notice to the owners of such lands (Beebe v. Magoun, 122 Iowa 94, 97 N.W. 986 and Smith v. Peterson, 123 Iowa 672, 99 N.W. 552), the General Assembly of the state undertook to remedy the defect thus disclosed. See chapter 67, page 59, Laws 30th Gen. Assem., approved April 29, 1904. Thereafter the board of supervisors proceeded with the matter of the construction of the ditch in question, following with substantial accuracy the provisions of the statute as amended by the act of the Thirtieth General Assembly, and were about to assess the expense of such improvement upon the lands found to be benefited thereby, when this action was begun in certiorari to have the proceedings adjudged void. The foregoing history of the case is sufficiently full and specific to enable us to understand the force and effect of the points made by counsel in argument.
I. The first and principal contention on part of the appellant is that, the proceedings to secure the construction of the ditch having been begun under a void statute, the subsequent amendment, even though it had the effect to make the statute constitutional and valid, could have no effect to give life to the pending proceedings or authorize an assessment of the cost of a ditch thus constructed upon lands supposed to be benefited thereby. Assuming, for present purposes, that it is competent for the Legislature to provide for the construction of a ditch for drainage purposes and the apportionment of the cost thereof as a special assessment upon lands thereby benefited, we think this objection cannot be sustained. Referring to the statute as it stood prior to the amendment, we find that it provided for notice of the institution of the proceedings to the owners of lands intersected by or abutting upon the ditch. Code, section 1940. As to such owners it has never been held that, when thus brought into the proceedings, they were entitled to any further notice of the succeeding steps of the statute in letting the contract, classifying the lands, or making the apportionment of the costs and expenses. On the contrary, it seems to be well settled that a statute which provides for notice to the property owner at some stage of the proceedings before the assessment is made is not open to the constitutional objection simply because it does not provide for a new or additional notice of each successive step leading up to the assessment. Yeomans v. Riddle, 84 Iowa 147, 50 N.W. 886; Oliver v. Monona Co., 117 Iowa 43, 90 N.W. 510; Weyerhaueser v. Minnesota, 176 U.S. 550 (20 S.Ct. 485, 44 L.Ed. 583); Winona & St. P. Land Co. v. Minnesota, 159 U.S. 526, (16 S.Ct. 83, 40 L.Ed. 247); Voigt v. Detroit, 184 U.S. 115, (22 S.Ct. 337, 46 L.Ed. 459).
The fatal objection to the proceedings under the statute in its original form was found in the further provision contained in Code, section 1946, whereby, when the construction had been determined upon, and an apportionment and assessment of the expense were to be made, it was provided that the same should be charged not only upon the property through which the ditch was laid, and whose owners had been notified as aforesaid, but upon all other lands "in the vicinity" which a commission appointed for that purpose might find to be benefited by the improvement. No provision was made for notice to the owners of the additional lands sought thus to be taxed, and this we held to constitute a taking of property without due process of law as to such persons and therefore unconstitutional. Smith v. Peterson, supra; Beebe v. Magoun, supra. In the Smith Case we further held the statute to be of no force or effect against the owners of lands intersected by the ditch and upon whom the notice required by section 1940 had been served, not because it was unconstitutional as to such persons, but because the void provision as to "lands in the vicinity" appeared to be such an essential feature of the scheme or plan sought to be effected that its elimination would lead to results not contemplated by the Legislature, and defeat the purposes which the statute was intended to promote. In other words, the methods of the statute were constitutional and valid up to the point where the report of the commissioners appointed to classify the benefited lands and apportion thereto the cost of the improvement was returned to the board, but the failure to provide for notice to all the owners of property thus affected before confirmation of such report rendered ineffectual and void any attempt to make and enforce a valid assessment. The proceedings relating to the ditch in controversy reached just this state of advancement before the amendment to the statute found in chapter 67, page 59, Laws 30th General Assembly, was enacted. That amendment leaves the statute unchanged as to all the proceedings in such cases from the filing of the petition up to the return of report made by the commissioners appointed to classify the benefited lands and apportion the expenses, and provides that when this stage is reached a time shall be fixed for hearing objections thereto, and notice thereof shall be served personally upon residents and upon nonresidents by publication, and upon such hearing the board is empowered to determine all objections to the assessment, and may increase, diminish, annul, or affirm the apportionments made in the commissioners' report, or any part thereof, as shall be found just and equitable. By section 2 of the amending act this amendment was made to apply to all proceedings then pending before the boards of supervisors for the location and construction of drains.
Was it competent for the Legislature to thus provide and authorize the defendants, with other boards of supervisors having similar proceedings in hand, to cause proper notice to be served, and proceed thereon to make an apportionment and assessment of the cost of the ditch? In our judgment, this question must be answered in the affirmative. The Constitution of Iowa does not forbid the enactment of retroactive laws, and this court has frequently upheld the validity of such statutes. Land Co. v. Soper, 39 Iowa 112; Tilton v. Swift, 40 Iowa 78; McMillen v. Co. Judge, 6 Iowa 391; Huff v. Cook, 44 Iowa 639; Sully v. Kuehl, 30 Iowa 275; State v. Squires, 26 Iowa 340; Galusha v. Wendt, 114 Iowa 597, 87 N.W. 512; Savings & L. Ass'n v. Heidt, 107 Iowa 297, 77 N.W. 1050; Windsor v. Des Moines, 110 Iowa 175, 81 N.W. 476; Ferry v. Campbell, 110 Iowa 290, 81 N.W. 604; Fair v. Buss, 117 Iowa 164, 90 N.W. 527; Clinton v. Walliker, 98 Iowa 655, 68 N.W. 431. That the Legislature may be amendment cure a constitutional defect in a statute the main purpose of which is within the scope of legislative power and give such amendment retroactive effect upon cases already begun and pending is expressly held by this court in Ferry v. Campbell, supra. In that case proceedings had been begun to enforce a collateral inheritance tax under a law which was found to be unconstitutional for want of provision for notice to parties in interest. Pending the proceedings, the statute was amended providing for notice in such cases and making the amendment applicable to cases then undetermined. Acts 27th General Assembly, page 27, chapter 37, section 2. This we found to be a valid exercise of legislative power, so far at least as it related to personal estate; and unless we propose to overrule that precedent--which we are not prepared to do--we see no way to avoid giving like effect to the amendment to the drainage act with which we are now dealing. The same principle is recognized and upheld in several of the Iowa cases above cited.
Appellant's claim that the amendatory act was not intended to have a curative effect upon proceedings...
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