Smith v. Peterson

• Decision Date: 04 May 1904
• Citation: Smith v. Peterson, 123 Iowa 672, 99 N.W. 552 (Iowa 1904)
• Parties: W. C. SMITH, Appellee, v. A. O. PETERSON, Treasurer of Emmet County, Iowa, Appellant
• Court: Iowa Supreme Court

99 N.W. 552

123 Iowa 672

W. C. SMITH, Appellee, v. A. O. PETERSON, Treasurer of Emmet County, Iowa, Appellant

Supreme Court of Iowa, Des Moines

May 4, 1904

Appeal from Emmett District Court.--HON. W. B. QUARTON, Judge.

ACTION in equity to enjoin the collection of tax levied for the construction of a ditch. Decree for plaintiff, and defendant appeals.

Affirmed.

N. J Lee and C. W. Crim for appellant.

W. A Ladd and N. T. Guernsey for appellee.

OPINION

WEAVER, J.

This case involves the validity of a tax assessed to pay for the construction of a ditch under the provisions of Code sections 1939 to 1951, and comes to us upon the appeal of the defendant from the judgment of the district court overruling a demurrer to plaintiff's petition. Plaintiff's land consists of two large tracts, but one of which is adjacent to the ditch, although both are assessed for a part of the expense of construction on the theory that both are benefited by the drainage thus afforded. No notice of the proceedings or assessment was served on plaintiff except the notice provided for by section 1940, addressed to owners of lands through or abutting upon which the ditch was proposed to be located. The collection of these taxes is sought to be enjoined on the theory that the statute authorizing the same is unconstitutional and void, and this is the principal question argued by counsel. In the late case of Beebe v. Magoun, 122 Iowa 94, 97 N.W. 986, we held that the provision of Code, section 1946, by which land "in the vicinity of the ditch" is made subject to assessment for a part of the cost of construction, is void, because it fails to provide for any notice to the owners of such lands. It is obvious that under the rule thus established the tax assessed upon that part of plaintiff's lands not adjacent to the ditch must be held to be unauthorized and void, and as to such lands the decree below must be affirmed.

It remains to be considered whether the tax may be enforced as to lands which are adjacent to the ditch, the owners of which did have the notice provided for in section 1940. That a statute may be held unconstitutional and void in part, yet valid and effective in other respects, has often been held. State v. Santee, 111 Iowa 1, 82 N.W. 445; Huntington v. Worthen, 120 U.S. 97 (7 S.Ct. 469, 30 L.Ed. 588); Field v. Clark, 143 U.S. 649 (12 S.Ct. 495, 36 L.Ed. 294). On the other hand, if the different parts of the statute "are so mutually connected with and dependent on each other as conditions, considerations, or compensations for each other as to warrant a belief that the Legislature intended them as a whole, and that, if all could not be carried into effect, the Legislature would not pass the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent or conditional or connected must fall with them." Warren v. Charleston, 68 Mass. 84, 2 Gray 84; Pollock v. F. L. & T. Co., 158 U.S. 601, 15 S.Ct. 912, 39 L.Ed. 1108). Assuming the law to be as above indicated, is the assessment of a part of the cost of the ditch upon lands not immediately adjacent thereto such an essential feature of the scheme or plan of the statute that its avoidance should invalidate the whole enactment? In our judgment, the question must be answered in the affirmative. The end sought to be attained by the statute is the construction of ditches where the same are required, and the assessment of the cost upon the entire district or area of land benefited by such improvement. A ditch of any considerable proportions along the low lands or sales of this state usually affords drainage more or less complete for lands to a considerable distance on either side. ...