State ex rel. Murray Cnty. v. Dist. Court
| Decision Date | 23 November 1917 |
| Docket Number | No. 20582.,20582. |
| Citation | 164 N.W. 815,138 Minn. 204 |
| Parties | STATE ex rel. MURRAY COUNTY et al. v. DISTRICT COURT, THIRTEENTH JUDICIAL CIST., et al. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Writ of certiorari in Supreme Court by the State, on relation of the County of Murray and others, against the District Court, Thirteenth Judicial District, and others, to review order of district court auditing and allowing in a certain sum the account and claim of the engineer appointed in judicial ditch proceedings. Order reversed.
The Legislature intended, by the provisions of Gen. St. 1913, § 5571, and the judicial ditch law as a whole, to make the county or counties in which a judicial ditch is proposed to be constructed primarily liable for the compensation and expenses of the engineer appointed by the court and of others who perform services in the proceeding, whether the ditch is established or the proceedings dismissed. Assuming, without deciding, that this would violate no constitutional provision, if the law provided for notice to the county, and a right and opportunity to be heard on the application to the court to allow, audit, and order paid such compensation and expenses, if it does not so provide, there is not due process of law. The provision in section 5571 that in case of a judicial ditch all ‘fees, per diem compensation and expenses shall be audited, allowed and paid upon the order of the judge of the district court having charge thereof,’ provides for no notice to the county, no right or opportunity to be heard, nor does any other provision of the law. This provision is unconstitutional, as not due process of law, and an order made thereunder is void. Ole Swanjord, of Slayton, and Murphy & Anderson, of Wheaton (Thomas Kneeland, of Minneapolis, of counsel), for relators.
E. H. Nicholas, of Jackson, for respondents.
This case is before the court on a writ of certiorari issued to review an order of the district court auditing and allowing at the sum of $6,160.08, the account and claim of the engineer appointed in judicial ditch proceedings. The order under review was made ex parte, and directs that the claim so audited and allowed be paid by the county of Murray, ‘as in such case provided by law.’ The ditch proceedings were instituted by the petitioners in May, 1914. They gave a bond in the sum of 1,000, conditioned, as required by statute to pay all expenses in case the court should fail to establish the ditch. There was a first hearing on the petition, and the court appointed C. W. Gove as engineer to make a survey and report. Gove accepted the appointment, and entered upon the performance of his duties thereunder. He made a complete survey, and in July, 1915, made a full report of such survey to the court. Viewers were appointed, qualified, did their work, and filed their report. There was a hearing on these reports and the court in June, 1916, resubmitted the matter to the engineer and viewers, with certain directions and suggestions. At the same time the court ordered the petitioners to file an additional bond in the sum of $750, and instructed the engineer and viewers not to proceed until such bond was filed, notifying the petitioners that, if the bond was not filed the proceedings would be dismissed. The bond was not filed, and on August 31, 1916, on motion of certain the objectors, the court dismissed the proceedings. The account and claim of the engineer was presented some eight months later and was audited and allowed May, 1, 1917. As already stated, this order was made on ex parte application, neither the county of Murray nor the petitioners having notice thereof.
Relators attack the order under review on several grounds. They assail the regularity of the proceedings, including those leading up to the order appointing the engineer, and subsequent proceedings, and question the account on the merits; but the important contention is that the statute under which this claim was approved and ordered paid by the county, if it be construed to authorize such an order, is unconstitutional, as not ‘due process of law.’ G. S. 1913, § 5571, after providing what fees and expenses shall be allowed and paid for services rendered by the engineer and others under the act declares that:
There is no hardship on the county when the ditch is established, as the expenses are included in the assessments. But when the proceedings are dismissed the situation is very different. If it is obliged to pay the expenses, and the bond of the petitioners is insufficient in amount to reimburse it, the county and its taxpayers will suffer a loss. That is the present case. We find no escape from holding that the Legislature, by the abovequoted provision of the statute, and the act as a whole, intended that the county should be primarily liable for the expenses incurred in judicial ditch proceedings, whether the ditch is finally established or the proceedings are dismissed. The idea undoubtedly was that, when the ditch petitioned for is not established, the petitioners who sign the bond and their sureties shall reimburse the county for the expenses so paid, to the amount of the bond. County of McLeod v. Nutter, 111 Minn. 345, 126 N. W. 1100. When, as in this case, the bond is wholly inadequate, the statute is silent as to how the county is to be reimbursed, and we see no way.
It is true that the engineer is not obliged to accept the appointment, and might perhaps refuse to continue the employment until a sufficient bond was filed, thus to an extent protecting himself. But the statute seems to contemplate that he shall be paid, irrespective of the amount of the bond. The case of County of McLeod v. Nutter, supra, is conclusive against the liability of the petitioners, except as they signed the bond, and to the amount thereof only. The case assumes the primary liability of the county for the expenses.
It is argued that the county is not a party to the proceedings, and has no interest therein until the ditch is established. It is correct that the county is not formally a party; but in view of what was said in Van Pelt v. Bertilrud, 117 Minn. 50, 134 N. W. 226, and the various provisions of the statute, it can hardly be held now that it was not intended that the county should be primarily liable for the expense, as well when the proceedings are dismissed as when the ditch is established. It is not a stranger to the proceedings. In addition to the published and posted notice of the...
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