State ex rel. Utick v. Board of County Commissioners of Polk County

• Decision Date: 07 November 1902
• Docket Number: 13,087 - (11)
• Citation: 92 N.W. 216,87 Minn. 325
• Parties: STATE ex rel. JOHN UTICK and Others v. BOARD OF COUNTY COMMISSIONERS OF POLK COUNTY
• Court: Minnesota Supreme Court

92 N.W. 216

87 Minn. 325

STATE ex rel. JOHN UTICK and Others v. BOARD OF COUNTY COMMISSIONERS OF POLK COUNTY

Nos. 13,087 - (11)

Supreme Court of Minnesota

November 7, 1902

Writ of certiorari issued from the supreme court to review the proceedings of the Board of County Commissioners of Polk county in laying out a drainage ditch in said county designated as "Ditch No. 23." Writ discharged.

The ditch was described in the petition therefor as follows "A general description of the proposed starting point route and terminus of said ditch is as follows: Commencing at a point in the southwest quarter of the southwest quarter of section eight on the northerly shore of a certain lake lying and being in said section eight and section seventeen, town of Queen, Polk county, Minn.; thence running along the following route, to-wit: in a northwesterly direction through sections eight and seven, town of Queen, Polk county, Minn thence in a westerly direction through section twelve, town of Brandsvold, Polk county; thence in a northwesterly direction through sections eleven and two in said town of Brandsvold to a certain creek or water course in said section; thence following the course of said creek or water course through sections two, three and four, town of Brandsvold, and sections thirty-four and thirty-three, Town of Hill River, Polk county, to the junction of said creek with the Hill river, and terminating at or about said junction with the Hill river as its outlet."

SYLLABUS

Defective Statutes -- Inferences by Court.

In cases of imperfectly drawn statutes, the court, rather than pronounce them unconstitutional and void, will draw inferences from the evident intent of the legislature, as gathered from the whole statute, supplying by implication technical inaccuracies in expression and obviously unintentional omissions, from the necessity of making them operative and effectual as to specific things which are included in the broad and comprehensive terms and purposes thereof; and such inferences and implications are as much a part of the statute as what is distinctly expressed therein.

County Drainage Act.

Laws 1901, c. 258, -- an act providing for the drainage of wet and over-flowed lands in certain cases, -- construed, and held a valid, constitutional legislative enactment.

Petition Jurisdictional.

A petition in proper form, filed as required by the above statute, is a jurisdictional prerequisite to the authority of the county commissioners to entertain a proceeding thereunder, but the description of a proposed ditch need not be stated with precise accuracy. It is sufficient that the starting point, course, and terminus be stated with approximate accuracy; the board, in ordering the construction of a ditch under such statute, being finally guided by the description as contained in the surveyor's report.

Gideon S. Ives and Harvey W. Stark, for relators.

Laws 1901, c. 258, is unconstitutional. The legislature has no power to exercise the right of eminent domain, the police power, or the power of taxation, for private purposes. 2 Kent, Com. * 340; Coster v. Tide Water, 18 N.J.Eq. 54; Lewis, Em. Dom. § 157; Lien v. Board of Commrs. of Norman Co., 80 Minn. 58; In re Jacobs, 98 N.Y. 98; In re Theresa Drainage Dist., 90 Wis. 301; Donnelly v. Decker, 58 Wis. 461; Lake Erie v. Commissioners, 63 Oh. St. 23; Hull v. Baird, 73 Iowa 528; Kinnie v. Bare, 68 Mich. 625. If there is no declaration by the legislature of the public purpose or use, and no authority delegated to the commissioners to pass upon this question, the act must necessarily be unconstitutional and void. Dillon, Mun. Corp., § 468; Reeves v. Treasurer, 8 Oh. St. 333; Jenal v. Green Island, 12 Neb. 163; State v. Curtis, 86 Wis. 140; Fleming v. Hull, 73 Iowa 598; In re City of Buffalo, 78 N.Y. 362; Gifford v. Shroer, 145 Ind. 572; Priewe v. Wisconsin, 93 Wis. 534; In re Niagara Falls W.R. Co., 108 N.Y. 375; In re Tuthill, 163 N.Y. 133.

W. E. Rowe, County Attorney, and Hiram F. Stevens, for respondent.

Only the validity of the act can be considered in this proceeding. All the objections raised by relators, except such as go directly to the validity of the act, could be raised upon the hearing before the commissioners, who are (Sec. 9) to proceed to hear and consider the same and to determine whether or not such damages and benefits have been duly awarded and assessed. Such determination may be reviewed upon appeal, at the instance either of one who has been assessed for benefits, or whose land has been condemned. Nor is the right of appeal limited, in terms, to such persons; but it would seem that, if error has occurred or wrong is liable to be suffered, "any person or corporation aggrieved" may appeal "from any judgment or order determining" either of those matters. The district court, under its ample jurisdiction, has no difficulty in affording relief to any party whose lands have been taken and who has appealed from a decision of the commissioners fixing the amount of his damages in a case where they are without authority to fix them at all. Nearly all of the objections raised by relators could have been urged with equal propriety against the former acts. While some of them provide that the commissioners shall "deem" the work to be of public utility, there is no provision for any investigation, hearing or determination upon that question. The legislature may well have considered that their opinion of what was expedient and proper was paramount to that of any board of county commissioners, or other inferior body. Carpenter v. City of St. Paul, 23 Minn. 232; State v. Board of Public Works, 27 Minn. 442; St. Paul, M. & M. Ry. Co. v. City of Minneapolis, 35 Minn. 141; Hurst v. Town of Martinsburg, 80 Minn. 40; Crossley v. O'Brien, 24 Ind. 325. It is sufficient if the petition shows on its face that the use or purpose is a public one. Sampson v. Kansas, 111 Mo. 237; St. Louis v. Hannibal, 125 Mo. 83. "Unless it is apparent that there was a lack of jurisdiction upon the part of the board of commissioners in respect to the subject matter of the proceeding, which * * * was the establishment and construction of a public ditch, appellant, by virtue of a well-settled rule, must necessarily fail in this collateral attack, no matter how gross an error or irregularity was committed by the board, in locating and establishing, as it did, the particular ditch over and upon the right of way in question. It can only succeed in this action by showing that the order of the board so far as it is thereby affected, is null and void." Baltimore v. Board, 156 Ind. 260. And see Whitacre v. St. Paul & S.C.R. Co., 24 Minn. 211; State v. Board of Public Works, supra; St. Paul, M. & M. Ry. Co. v. City of Minneapolis, supra; Knoblauch v. City of Minneapolis, 56 Minn. 321; Eldridge v. Smith, 34 Vt. 484; Tyler v. Beacher, 44 Vt. 648; McKusick v. City of Stillwater, 44 Minn. 372; Kelly v. Minneapolis City, 57 Minn. 294; Spencer v. Merchant, 125 U.S. 345.

The act is constitutional. All authorities agree that the exercise by the legislature of the right of eminent domain is restricted by only two conditions: (1) That compensation shall be made to the owner of the property taken; and (2) that the use for which property may be taken shall be a public use. In other respects it is without limit. The legislature alone must determine whether the purpose to be subserved is necessary or wise, and when and under what circumstances the occasion for its exercise arises. The courts may see that the use is public, that compensation is made, and that the legislature has indicated its will that the power should be enforced, but further than that the judiciary is without authority. See State v. Rapp, 39 Minn. 65; Holtz v. Commissioners, 41 Oh. St. 423. See a discussion of the police power in Boston v. County, 79 Me. 386; Thompson v. County of Polk, 38 Minn. 130. The intention of the legislature must be gathered mainly from the terms of the statute. Talbot v. Hudson, 16 Gray, 417. The mode of exercising the right of eminent domain, whether by the state itself or its delegates, rests in the discretion of the legislature, in so far as the legislature is not restrained by the constitution. Wilkin v. First Div. St. P. & P.R. Co., 16 Minn. 244 (271); Hursh v. First Div. St. P. & P.R. Co., 17 Minn. 417 (439); Weir v. St. Paul, S. & T.F.R. Co., 18 Minn. 139 (155); Warren v. First Div. St. P. & P.R. Co., 21 Minn. 424; Cotton v. Mississippi & R.R. Boom Co., 22 Minn. 372; Commrs. of State Park v. Henry, 38 Minn. 266. The presumption is that the commissioners proceeded rightly and according to the statute until the contrary appears. Abel v. City of Minneapolis, 68 Minn. 89; Lewis, Em. Dom. § 242, et seq; Curran v. Board of Co. Commrs. of Sibley Co., 56 Minn. 432; Chicago, B. & N.R. Co. v. Porter, 43 Minn. 527. See State v. Rapp, supra; City of St. Paul v. Nickl, 42 Minn. 262; Fairchild v. City of St. Paul, 46 Minn. 540; Knoblauch v. City of Minneapolis, supra; Sperry v. Flygare, 80 Minn. 325; Lien v. Board of Commrs. of Norman Co., 80 Minn. 58; Lewis, Em. Dom. §§ 10, 237, 246, 393, and cases cited; 10 Am. & Eng. Enc. (2d Ed.) 1070, et seq. It is for the legislature to judge the degree of public necessity and to what extent, on what occasion and under what circumstances the power of eminent domain shall be exercised, and the courts cannot control the decision of the legislature on these points; but, whether the use is public or private is for the judiciary. Hartwell v. Armstrong, 19 Barb. 166; In re B.H.F & W. Ry. Co., 79 N.Y. 64; In re N.F. & W.R. Co., 108 N.Y. 375; Pocantico v. Bird, 130 N.Y. 249; In re Burns, 155 N.Y. 23.

Drainage is prima facie a public use, as matter of law. Fallbrook Irrigation District v. Bradley, 164 U.S....