State ex rel. v. Board of Supervisors

• Decision Date: 06 December 1907
• Docket Number: Nos. 15,344-(14).,s. 15,344-(14).
• Citation: 102 Minn. 442
• Parties: STATE ex rel. CHARLES SCHUBERT v. BOARD OF SUPERVISORS OF TOWN OF ROCKFORD and Others.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

Page 442

102 Minn. 442

STATE ex rel. CHARLES SCHUBERT v. BOARD OF SUPERVISORS OF TOWN OF ROCKFORD and Others.¹

Nos. 15,344-(14).

Supreme Court of Minnesota.

December 6, 1907.

Writ of certiorari from the supreme court upon the relation of Charles Schubert to have the order and judgment of the board of supervisors of the town of Rockford assessing petitioner's land for the construction of a ditch declared void. Order and judgment reversed.

W. H. Cutting, for relator.

J. T. Alley, for respondents.

JAGGARD, J.

The relator secured a writ of certiorari to the board of supervisors of a given town to review the proceedings had by them in the matter of laying out a ditch or drain pursuant to chapter 191, p. 215, Laws 1907. The petitioner in those proceedings owned land adjoining that of the relator. His petition set forth, inter alia, that on the south side of his lands there were several acres of wet and marshy land, which on account of its wet condition endangered the public health, the drainage of which would promote the public health and would reclaim several acres of that wet land. The proposed course of the ditch was through the land of the relator. The essential question presented by the appeal is whether chapter 191, p. 215, Laws 1907, is constitutional. Relator insists that the law is unconstitutional and repugnant to the fourteenth amendment to the constitution of the United States and to the constitution of the state of Minnesota in that it sought to deprive the relator of his property without due process of law, and to take his property for a private purpose only, and for no public purpose, and to take and assess his land for a private purpose only.

The law in question (Laws 1907, p. 215, c. 191) is to be distinguished from the county drainage ditch act (chapter 258, p. 413, Laws 1901). The constitutionality of that act was sustained, because the drainage of large tracts of wet and overflowed lands would operate beneficially to the public and would conduce to public health, and because, therefore, property taken in its enforcement was taken for a public purpose, and not for private advantage. State v. Board of Commrs. of Polk County, 87 Minn. 325, 92 N. W. 216, 60 L. R. A. 161. And see Lien v. Board of Commrs. of Norman County, 80 Minn. 58, 82 N. W. 1094. The propriety of that conclusion is not questioned by this appeal, nor by this decision.

The act here in question is an essentially different one. It purports by its title "to provide for the drainage of marsh, swamp or wet lands in any town or township in the state of Minnesota by the owners of such lands when the same cannot be drained without affecting the lands of others, and providing for a penalty for obstructing or injuring the ditches or drains constructed under the provisions of this act." Section 1 provides in substance that when any swamp, marsh, or wet land, on account of its condition, may endanger the public health, or where its drainage will result in the reclamation of otherwise waste lands, "or where the construction of such ditch or drain is of benefit to the lands of adjoining owner or owners," the person owning such wet lands may, in case the landowners shall be unable to agree in regard thereto, file with the designated officer a petition describing the lands through which it is desired to...