Shreves v. Ux

• Citation: 76 Kan. 709,92 P. 584
• Decision Date: 09 November 1907
• Docket Number: 15,571
• Parties: J. G. SHREVES, as Probate Judge, etc., et al. v. O. S. GIBSON et ux
• Court: United States State Supreme Court of Kansas

92 P. 584

76 Kan. 709

J. G. SHREVES, as Probate Judge, etc., et al. v. O. S. GIBSON et ux

No. 15,571

Supreme Court of Kansas

November 9, 1907

Decided July, 1907.

Error from Cowley district court; CARROLL L. SWARTS, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONSTITUTIONAL LAW--Delegation of Powers--County Drainage Act. The provision of the county drainage act (Gen Stat. 1901, §§ 2551-2566) which allows an appeal from the order of the county commissioners requiring a drain to be constructed by the landowners benefited, in consequence of which appeal the final determination of the amount of labor to be performed by each person interested--in effect the estimate of benefits as a basis for special assessments--is submitted to a jury selected by the probate judge, is not void as an attempt to devolve legislative functions upon a judicial tribunal.

2. CONSTITUTIONAL LAW--Appeal Is in Effect to a Commission Appointed by the Court. Although the proceeding referred to is described in the statute as an appeal to the probate court, and is there spoken of as a "case," and although the judge is required to make a record of the proceedings of the jury and to make an order in accordance with their report, nevertheless such proceeding is in effect an appeal to a commission to be appointed by the probate judge, and not to the court itself, inasmuch as the court is given no control over the jury's investigation or decision.

3. APPEAL BOND--Amount--Validity. Where the statute relating to an appeal bond is silent as to its amount such a bond is not void because the liability thereon is limited to a fixed sum.

4. NOTICE--Appeal in Drainage Proceedings. Under a statute requiring a written notice of appeal to be given to the county clerk, a notice, otherwise sufficient, which is delivered to the clerk is not rendered void by the fact that it is addressed to the commissioners.

C. T. Atkinson, C. R. Pollard, and L. C. Brown, for plaintiffs in error.

L. H. Webb, O. P. Fuller, J. Mack Love, and C. Ward Wright, for defendants in error.

OPINION

MASON, J.:

Proceedings were begun under the county drainage act (Gen. Stat. 1901, §§ 2551-2566) for the establishment of a drain. The county commissioners, upon the petition of persons interested, finding that the proposed ditch was necessary and would be conducive to the public health, convenience and welfare, ordered it to be built, apportioning the construction among the owners of the lands affected in proportion to their estimate of the benefits to be received. Two of these landowners, being dissatisfied with the order, gave the bond and notice of appeal provided by the act. (Gen. Stat. 1901, § 2557.) According to the terms of the statute (Gen. Stat. 1901, §§ 2558, 2559), the effect of this was to require three questions relating to the proceedings to be submitted to a jury to be impaneled by the probate judge, namely:

"First, whether it will be conducive to the public health, convenience or welfare to cause said proposed ditch, drain, or watercourse to be established as located; second, the amount of compensation due to each person in case of the location of the same; and, third, the amount of labor to be performed by such person interested in the opening and constructing of the same."

A transcript of the proceedings before the county board was filed with the probate judge, but before any steps were taken by him persons interested in the projected improvement appeared and contested his right to take jurisdiction of the matter, upon the ground that that part of the statute relating to the appeal was void as an attempt to devolve legislative functions upon a judicial tribunal. A motion to dismiss the appeal being denied, the moving parties applied to the district court and obtained a writ of prohibition against the probate judge forbidding him to proceed further in the matter of such appeal. The probate judge and the persons who instituted the appeal prosecute error from the judgment awarding such writ.

There is little difficulty in deciding that it is competent for the legislature to provide for submitting to the determination of a court the first two of the three questions which the statute says may be referred to a jury. It is true that the question whether a proposed improvement would be of public benefit is very closely related to the question whether it shall be undertaken, but adherence to the doctrine established by the series of cases relating to the extension of city boundaries requires the court to recognize a distinction between them, and to say that the former question is one of fact suitable to be left to a court, only the latter being one of policy requiring to be decided by a legislative body. These cases are collected and reviewed in Hutchinson v. Leimbach, 68 Kan. 37, 74 P. 598, 63 L. R. A. 630, 104 Am. St. Rep. 384. (See, also, Citizens' Sav. Bank v. Town of Greenburgh, 173 N.Y. 215, 65 N.E. 978, and cases there cited.)

The amount of compensation to be made to individuals on account of the establishment of the drain is conceded to be a fair matter for judicial review.

The serious controversy arises with respect to the third question. While the statute seems to contemplate the actual building of specified portions of the ditch by the several landowners, the situation is essentially the same as though the cost of the improvement were to be assessed against the improved property in proportion to the benefits received. May the legislature authorize an appeal to be taken to a court from the assessment made by appraisers in such a case? The defendants in error rely with confidence upon the doctrine of Auditor of State v. A. T. & S. F. Railroad Co., 6 Kan. 500, 7 Am. Rep. 575, which has been reaffirmed at the present session of this court in Silven v. Osage County, ante, p. 687, declaring void a statute which purports to grant an appeal to the district court from the action of the county board of equalization. It must be conceded that the analogy between those cases and this seems close, and that the grounds of distinction are not readily apparent. However, although taxation by special assessment, like general taxation, is regarded as an exercise of legislative power, it differs from it in various ways. (Hines and others v. The City of Leavenworth and others, 3 Kan. 186.) The argument against permitting the judgment of a court to be substituted for that of administrative officers with respect to the entire system of assessment upon which all public revenues depend does not apply with equal force to a plan which merely contemplates submitting to a judicial body the question of how far a specific tract of land is benefited by a particular improvement--a question which may plausibly be viewed as one of fact. The practice of allowing appeals to judicial tribunals from determinations of this character is common. (2 Cooley, Tax., 3d ed., 1271; 25 A. & E. Encycl. of L. 1220.) And it has often been held that the existence of such right of review dispenses with the necessity of giving notice to the owner of the property affected prior to the original assessment. (1 Cooley, Tax., 3d ed., 59, note 4; The State ex rel. Baltzell v. Stewart, 74 Wis. 620, 43 N.W. 947, 6 L. R. A. 394; Wilson v. Karle, 42 N.J.L. 61; Hoertz v. Jefferson Southern Pond Draining Co. [Ky.], 119 Ky. 824, 84 S.W. 1141.) Where, as in this case, a legislative body decides whether an improvement shall be made, what its extent shall be, what property shall be charged with its cost, and what method of apportionment shall be employed, it is not clear that the mere ascertainment of the actual results of such rule may not be committed to a court. Where the legislature adopts a rule of apportionment by frontage or area its application becomes a mere matter of measurement, but even this requires some inquiry and finding. It is not clear why, having chosen to let the apportionment turn upon the actual benefits received, the legislature may not suffer the fact in that regard to be determined in a judicial proceeding. That a right of limited judicial review from the appraisers' estimate of benefits may be granted does not admit of doubt. Thus, in In re Westlake Avenue, 40 Wash. 144, 82 P. 279, it was said:

"The city, and not the court, is authorized to take the initiative in the matter of such improvements and the assessments to pay therefor. It was the legislative power of the city, exercised by its council, that occasioned the imposition of the assessment. The state legislature gave the city the authority to levy such a tax. It provided the method by which it should be done. By this plan the apportionment of the tax to the various parcels of property is made by a board of commissioners appointed by the court. These commissioners, by operation of law, become, in effect, officials or agents of the municipality for the performance of this service. Upon the completion of the commissioners' work it may be called in question by any interested person before the court, which is vested with revisory powers. The function of the court in these proceedings is to settle disputes and to correct errors and inequalities called to its attention, and thereby relieve the assessment of any lack of uniformity or other injustice. That the act of the legislature invokes the assistance of the court to obviate errors in, and facilitate the accomplishment of, a special assessment, does not, in our opinion, render the statute obnoxious to the constitution." (Page 148.)

In State v. District Court of Hennepin County, 33 Minn. 235, 22 N.W. 625, the distinction between setting aside the work of an assessing body and merely revising it was discussed, the court saying:

"It was not the purpose of the act that the proceeding...