Soliah v. Cormack

• Decision Date: 28 May 1908
• Citation: 117 N.W. 125,17 N.D. 393
• Court: North Dakota Supreme Court

117 N.W. 125

17 N.D. 393

M. E. SOLIAH, ET AL., v. A. G. CORMACK, C. L. GORDON AND J. F. JOHNSON. CONSTITUTING THE BOARD OF DRAIN COMMISSIONERS OF TRAILL COUNTY, NORTH DAKOTA

Supreme Court of North Dakota

May 28, 1908

Appeal from District Court, Traill County; Pollock, J.

Action by M. E. Soliah and others against A. G. Cormack and others. Judgment for defendants, and plaintiffs appeal.

Affirmed.

P. G Swenson and Engerud, Holt & Frame, for appellants.

The drainage act is an unwarranted delegation of legislative power. Vallely v. Park Commissioners, 16 N.D. 25 111 N.W. 615.

Legislative power can be delegated only to officers elected by people to be affected by their legislative acts. State v Budge, 14 N.D. 532, 105 N.W. 724; Marr v Enloe, 1 Yerg. 452; Hope v. Deaderick, 8 Humph. 1; People v. Parks, 58 Cal. 624; 1 Cooley on Taxation, 95; Shumway v. Bennett, 29 Mich. 45; Cooley on Taxation, (3rd Ed.) 81.

The levy of special assessments is taxation. Burroughs on Taxation, 461; 3 Cooley on Taxation, 1181; Hamilton on Special Assessments, 38; Desty on Taxation, 1117, 1237, 1265, 1266; 2 Dillon on Mun. Corp. 752; Cooley on Const. Lim. 213, 216; 25 Am. & Eng. Enc. Law. 458, 468; Burroughs on Taxation, 458, 463.

Due process requires that the tribunal intrusted with legislative authority be one to which such power may be lawfully delegated. Paulson v. Portland, 149 U.S. 30; Voight v. City of Detroit, 184 U.S. 115; French v. Barber Asphalt Co. 181 U.S. 324; Walston v. Nevins, 128 U.S. 578; Eel Riv. Dr. Co. v. Topp, 16 Ind. 242; McKinney v. Bowman, 58 Ind. 88; Columbus v. Kyle, 67 Ind. 206; Bryant v. Robbins, 35 N.W. 545.

Theo. Kaldor, State's Attorney for Traill County, for respondents.

A special assessment differs from a tax. 25 Am. & Eng. Enc. Law 1174; Arnold v. Mayor, 3 L. R. A. (N. S.) 837.

Special assessments are not governed by constitutional provisions regulating taxation. Vallelly v. Park Commissioners, 16 N.D. 25, 111 N.W. 615; Elliott on Roads and Streets (2nd Ed.) Sec. 543; Gray on Limitations of Taxing Power, Sec. 1839; 25 Am. Eng. Enc. Law (2nd Ed.) 915; In re Hagne-Hendrum Ditch, 82 N.W. 1094; 14 Cyc 1024; Town of Muskego v. Drainage Comm'rs, 47 N.W. 11; Griffith v. Pence, 59 P. 677; Zigler v. Manges, 121 Ind. 99; 16 Am. St. Rep. 357; Gray on Limitations of Taxing Power, Sec. 249; O'Reilly v. Kankakee Drainage Co. 32 Ind. 169; Coster v. Tide Water Co. 18 N. J. E. 54; Sessions v. Crunkelton, 20 Ohio St. 349; Atty. General v. McClear, 109 N.W. 27; Wurtz v. Hoaglund, 114 U.S. 606; State v. Blake, 36 N.J.L. 442; Kinnie v. Bare, 36 N.W. 672; Arnold v. Mayor, 3 L. R. A. (N. S.) 837; 10 Am. Eng. Enc. Law. 223; Donnelly v. Decker, 17 N.W. 389; Hager v. Board of Supervisors, 47 Cal. 222; Cooley Const. Law, (4th Ed.) 741; Kelgour v. Drainage Comr's. 111 Ill. 342; Horbach v. City of Omaha, 74 N.W. 434.

Legislative power may be delegated to non-elective tribunals. Martin v. Tyler, 4 N.D. 378; 60 N.W. 393; Bryant v. Robbins, 35 N.W. 454; Erickson v. Cass County, 11 N.D. 494, 92 N.W. 841; State v. Fisk, 15 N.D. 219, 107 N.W. 191; Cook v. Nearing, 27 N.Y. 306, Egyptian Levee Co. v. Hardin, 27 Mo. 495; Territory v. Scott, 20 N.W. 401; Mound City v. Miller, 70 S.W. 721; Turner v. City of Detroit, 62 N.W. 405; State v. Crosby, 99 N.W. 636; Wurtz v. Hoaglund, 114 U.S. 606, 29 L.Ed. 229; In re Kingman, 12 L. R. A. 417; Hagar v. Reclamation Dist. 111 U.S. 701; Town of Muskego v. Drainage Com'rs, 47 N.W. 11.

Drainage law does not violate fourteenth amendment to the constitution, nor section 13 of the constitution of North Dakota. Erickson v. Cass Co., supra, State v. Fisk, supra; Turnquist v. Cass County, 11 N.D. 514, 92 N.W. 852.

OPINION

FISK, J.

Plaintiffs, who are property owners and residents of Mayville and Morgan townships in Traill county, brought this action in the district court of said county for the purpose of perpetually enjoining the defendants as drain commissioners from taking any further proceedings towards the construction of a certain drain through such townships, and from levying any assessments upon their property for the construction thereof. The district court sustained a demurrer to the complaint and this appeal is from such order. The regularity of all the proceedings of the board of drain commissioners is expressly conceded by appellants, their sole contention being that the drainage law of this state is unconstitutional and void: First, because it is claimed to be in conflict with section 25 of the state constitution, which vests the legislative power of the people of the state in the legislative assembly; and, second, that such law violates section 13 of the state constitution and the fourteenth amendment to the federal constitution, forbidding the taking of property without due process of law.

Appellant's first and chief contention is that the drainage law is an unwarranted delegation of legislative power to the board of drain commissioners, the members of which are not elected by and answerable to the people, but are merely appointed by the board of county commissioners. Counsel for appellants have presented a very able and plausible argument in support of their contention, basing the same, to a large extent, upon the holding of this court in the recent case of Vallelly v. Park Comr's, 16 N.D. 25, 111 N.W. 615, and the authorities therein cited. It is vigorously asserted by them that that case is absolutely decisive in their favor of the case at bar. It was there held in effect that the taxing power which is vested by the constitution of the state in the legislative assembly cannot be delegated to a person or body not elected by and responsible to the people. In other words, that the legislature in enacting the park commissioner law exceeded its constitutional powers by delegating to the park commissioners, who were to be appointed by the city council without any voice on the part of the people, the legislative power of levying general taxes upon the property within the city. It is, of course, clear that if the power to make special assessment is governed by the same principles which govern the assessment and levy of general taxes, the logic of appellant's argument is unanswerable, but if the contrary is true, their argument is entitled to no weight. The questions presented are of the gravest importance to the people of the state, and, after giving to them the consideration which their importance demands, we are entirely convinced that the act is not vulnerable to the attacks made upon it by appellants' counsel in this case.

We think appellants' counsel are clearly in error in their construction of the Vallelly opinion as well as the opinion in the cases cited therein. None of these cases deal with the question of the constitutional power of the legislature to delegate to an appointive body the right to make special assessments for local improvements, but they merely hold that the power to levy general taxes is a legislative power, and that the same cannot be conferred upon such a nonrepresentative body. The evident fallacy in appellants' entire argument in support of their first contention, as it appears to us, lies in their unwarranted assumption that, because the power to levy special assessments for local improvements according to benefits is derived from the taxing power, it necessarily follows that the power to make such special assessments cannot be delegated to other than representative bodies. While it must, we think, be conceded that under the great weight of authority the levying of special assessments is the exercise of the taxing power--(Hamilton on the Law of Special Assessments, chapters 48-50, and cases cited)--still it is equally well settled and will not be denied that the right to order local improvements is derived from the police power, and that the levying of special assessments is a mere incident to the making of such local improvements. Although referable to the taxing power, local assessments are not, strictly speaking, taxes. As said by the supreme court of Missouri in speaking of the power to levy special assessments: "The power to make such assessments has been the prolific source of much forensic discussion, and difficulty seems to have existed in tracing this power to its true source and basing it upon a sound principle, but it is settled in Missouri and generally elsewhere that it is referable to the taxing power, though such assessments are not taxes in the sense that word is usually employed." City of Independence v. Gates, 110 Mo. 374, 19 S.W. 728. In Martin v. Tyler, 4 N.D. 278, 60 N.W. 392, 25 L.R.A. 838, it is said: "We understand counsel to admit--granting the existence of the power to levy special assessments--that such assessments differ radically in their nature and purpose from ordinary taxation, and that the rule which requires uniformity in taxation has no application whatever to special assessments. This has now become so elementary that citations are unnecessary."

Is the contention of counsel for appellants sound that the power to levy such special assessments can only be delegated to elective or representative bodies? A brief review of the authorities, will, we think, completely demonstrate the utter fallacy of such contention. In Martin v. Tyler, supra, this court sustained the power of the legislature to delegate to an appointive board of drain commissioners the functions of constructing drains and levying assessments to pay for the same. After quoting from the opinion of the court in Bryant v. Robbins, 70 Wis. 258, 35 N.W. 545, in affirmance of such power, this court said: "Surely this language is applicable to this case. It will not be contended for a moment that, under their general powers, the county commissioners could engage in...