Strawberry Hill Land Corp. v. Starbuck

• Decision Date: 14 November 1918
• Citation: 97 S.E. 362
• Parties: STRAWBERRY HILL LAND CORPORATION. v. STARBUCK et al.
• Court: Virginia Supreme Court

97 S.E. 362

STRAWBERRY HILL LAND CORPORATION.

v.STARBUCK et al.

Supreme Court of Appeals of Virginia.

Nov. 14, 1918.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Corporation.]

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Such.]

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Police Power.]

Appeal from Circuit Court, Henrico County.

Suit by the Strawberry Hill Land Corporation against D. W. Starbuck and others. From a decree for defendants, plaintiff appeals. Affirmed.

R. W. Carrington and McNeill & Bremner, all of Richmond, for appellant.

R. Grayson Dashiell, of Richmond, and Wolcott, Wolcott, Lankford & Kear, of Norfolk, for appellees.

PRENTIS, J. In this proceeding the constitutionality of the act, entitled "An act to amend and re-enact an act entitled an act to amend and re-enact an act entitled an act to promote the public health, convenience, and welfare by leveeing, ditching, and draining the wet, swamp, and overflowed lands of the state, and providing for the establishment of levee or drainage districts for the purpose of enlarging or changing any natural water courses, and for digging ditches, or canals, for securing better drainage, or providing better outlets for drainage, for building levees or embankments, and installing tide gates or pumping plants for the reclamation of overflowed lands, and prescribing a method for so doing, and providing for the assessment and collection of the cost and expenses of the same, and issuing and selling bonds therefor, and for the care and maintenance of such improvements when constructed, approved March 17, 1910, and as amended andre-enacted and approved March 12, 1912" (Acts 1914, p. 642), is attacked in several particulars.

There seems to be no doubt whatever, in the absence of some constitutional inhibition, of the power of the General Assembly to provide for the drainage and reclamation of swamp lands by the creation of local drainage districts, to delegate their power to local agencies to organize and control systems of drainage within their boundaries, and to assess the cost thereof against the property thereby benefited; indeed, these general propositions are not denied by the petitioner. The legislative authority is said to rest on the police power, the power of eminent domain, and the taxing power. Some of the courts adjudge such legislation valid upon one of these grounds and some upon another, but they are consistent in sustaining such statutes as enacted in the interest of public health, convenience, or welfare, and it seems to be universal that, where such laws are authorized, the power to provide for assessing the cost and expenses of the improvement against the lands benefited follows as a natural result, and as necessary and incidental to the exercise of the power to make the improvement.

It has been said that the exact status of such districts is an academic question. Certainly it is not necessary to define it with precision. Such districts have been denominated public or quasi public corporations, or quasi municipal corporations, and it is also said they are not corporations at all, but merely governmental agencies for the administration of a legislative power. It has been held that a constitutional power expressly granted to the Legislature to organize various specified municipal and quasi municipal corporations, not including drainage districts, does not preclude the organization of such districts, and that town officers, performing duties imposed upon them in connection with the administration of a drainage district, act as representatives of the state, and not of the town. The general subject is exhaustively discussed in the notes to Ann. Cas. 1915C, p. 9; 9 R. C. L. pp. 642, 644; 60 L. R. A. 161; 14 Cyc. 1018.

In determining the constitutionality of a statute, we must, of course, always bear in mind that the state Constitution is not a grant of power, but only the restriction of powers otherwise practically unlimited; that, except so far as restrained by the Constitution, the Legislature has plenary power; and that every fair doubt must be resolved in favor of the constitutionality of an act of the General Assembly. Ex parte Settle, 114 Va. 715, 77 S. E. 496; Pine & Scott v. Commonwealth, 121 Va. 822, 93 S. E. 652.

1. In this case the trial court held unconstitutional so much of section 2 of the act as provided for the payment of the preliminary costs by the board of supervisors of the county, in the circuit court of which the petition had been filed, and it is claimed that because of this the whole act is invalid. We cannot agree with this view. The rule is that an act may be valid in one part and invalid in another, and, if the invalid is severable from the remainder, that invalid part may be ignored, if after such elimination the remaining portions are sufficient to accomplish their purpose in accordance with the legislative intent, and that only if the void portion is the inducement to the passage of the act, or is so interwoven in its texture as to prevent the statute from becoming operative in accordance with the will of the Legislature, is the whole statute invalid. Trimble's Case, 96 Va. 818, 32 S. E. 786; Robertson v. Preston, 97 Va. 300, 33 S. E. 618; Lambert v. Smith, 98 Va. 268, 38 S. E. 938; Danville v. Hatcher, 101 Va. 523, 44 S. E. 723; Campbell v. Bryant, 104 Va. 509, 52 S. E. 638. This precise point was raised in State v. Taylor, 224 Mo. 472, 123 S. W. 892, in which it was held that, even if the section providing for the payment by the county of damages and initial expenses of a drainage district is unconstitutional, this does not render the remainder of the act imperative.

2. It is claimed that section 17 of the drainage act is void, because it creates a private corporation by special law.

(a) It is so perfectly clear, under the authorities heretofore referred to, which could be greatly multiplied, that such a corporation is not a private corporation, that we deem it unnecessary to pursue the subject at length. Section 153 of article 12 of the Constitution is cited, and the clauses relied upon are those which define the term "corporation" as used in that article as including "all trusts, associations and joint-stock companies having any powers or privileges not possessed by individuals or unlimited partnerships, " and as excluding "all municipal corporations and public institutions owned or controlled by the state." This is merely a definition of the word "corporation" as used in that article, and cannot be further extended; hence it has little persuasiveness in showing that this is a private corporation. The section itself excludes municipal corporations, and there is authority for holding that drainage districts are quasi municipal corporations. The sounder view, in our opinion, is that a drainage district is neither a private corporation nor association, nor is it either a municipal corporation or a public institution owned or controlled by the state. It is an organization not within the contemplation of the convention when the article was framed, an organization for which the Constitution has made no express provision, and against the creation of which there is no inhibition. It is a governmental agency, an unincorporated community, organized for a specified and limited public purpose under the police power of the state.

[7, 8] (b) It is also claimed that the drainage act is a special law, and in violation of section 63, art. 4, which prohibits the General Assembly from enacting any special or private law for creating private corporations. There can be little doubt that the drainage act is not a special or private law. In Ex parte Settle, supra, this court determined that a statute which provides for a special trial justice in all counties in the state having a population greater than 300 inhabitants per square mile, as shown by the United States census, is constitutional It was shown that there was only one county in the state, Alexandria, which has a population so dense; but this court determined that the fact that a law applies only to certain territorial districts does not render it a special law, and hence unconstitutional, provided it applies to all districts precisely similarly situated, and to all parts of the state where like conditions exist, and that laws may be made to apply to a class only, although that class may be in point of fact a small one, provided that the classification be reasonable, and not arbitrary, and the law be made to apply to all of the persons belonging to the class without distinction, and that the number of inhabitants in a county is a basis for a valid classification. If the statute applies throughout the state, and to all persons and property within the class specified, and the classification is reasonable and not arbitrary, such a statute is not special, but general. There are statutes in the state containing special provisions with reference to granting charters to banks and trust companies, insurance companies, co-operative associations, corporations without capital stock, transportation companies and other public service corporations, companies organized for planting and propagating oysters, and perhaps others, which differ in material particulars from statutes for the granting of charters and the organization of ordinary business corporations—that is to say, the Legislature has classified corporations. These statutes are none the less general laws, simply because they contain special provisions applying to particular classes.

In this case the drainage act applies to the entire state, without any qualification whatever; its purpose being (to quote from the title and the first section) "to promote the public health, convenience and welfare by leveeing, ditching and draining the wet, swamp and overflowed lands of the state, and providing for the establishment of levee or...