Sundquist v. Fraser, 23100.

• Decision Date: 02 February 1923
• Docket Number: No. 23100.,23100.
• Court: Minnesota Supreme Court
• Parties: SUNDQUIST v. FRASER et al.

154 Minn. 371

191 N.W. 931

SUNDQUIST

v.FRASER et al.

No. 23100.

Supreme Court of Minnesota.

Feb. 2, 1923.

Appeal from District Court, St. Louis County; Bert Fesler, Judge.

Action by A. J. Sundquist against Alex Fraser and others. From an order ststaining a demurrer to the complaint, plaintiff appeals. Reversed.

Dibell and Hallam, JJ., dissenting.

Syllabus by the Court

Chapter 155, Laws 1921, by which the board of county commissioners of the several counties of the state are authorized on the petition of third persons to enter upon privately owned farms and there clear designated sized tracts for agricultural uses, defraying the expense of the work by the issuance of county bonds, proportionately assessing the improved lands in reimbursement of the county for the bond issue, is not an exercise of the police power of the state, but an internal improvement and a loaning of public credit, a field the state is forbidden to enter upon by sections 5 and 10 of article 9, of the state Constitution.

The statute is not a forest fire preventive measure, but purely in promotion of private interests, and void as a violation of section 10 of article 9 of the state Constitution. McMillan & Dow, of Duluth, for appellant.

Chas. E. Adams, of Duluth, for respondents.

BROWN, C. J.

Suit by a taxpayer to restrain a so-called land improvement proceeding, initiated under the provisions of chapter 155, Laws 1921. There was a demurrer to the complaint, which was sustained, and plaintiff appealed.

The action challenges the constitutionality of the statute under which the improvement proceeding was brought, on the principal ground that the purpose sought to be accomplished thereby is not public, but private, and therefore beyond the power of the Legislature to extend public aid in furtherance thereof, directly or through the issuance of county bonds to defray the expense of the undertaking. Sections 5 and 10, art. 9, state Constitution.

[1] 1. The plan of internal improvements as here attempted and authorized, being for private benefit, in the clearing of land for the use of the owner, whether resident or nonresident of the state, is somewhat unusual in states having constitutional provisions and restrictions like those of this state, and finds a counterpart only in the home building, grain elevator, and grist mill program inaugurated by our sister jurisdiction of North Dakota. But there the right to enter that field of state co-operation in industrial private life was established and made legal in all respects by appropriate amendments of the state Constitution. In this state the Legislature by this statute enters the field without constitutional grant, and in the face of restrictive commands to keep out.

The remarks of Mr. Justice Mitchell in the case of Rippe v. Becker, 56 Minn. 100, 118, 57 N. W. 331,22 L. R. A. 857, are here quite pertinent. That case involved the validity of a statute providing for a state storage public elevator, which was held invalid. In the course of discussion he there said:

‘The time was when the policy was to confine the functions of government to the limits strictly necessary to secure the enjoyment of life, liberty, and property. The old Jeffersonian maxim was that the country is governed the best that is governed the least. At present, the tendency is all the other way, and toward socialism and paternalism in government. This tendency is, perhaps, to some extent, natural, as well as inevitable, as population becomes more dense, and society older, and more complex in its relations. The wisdom of such a policy is not for the courts. The people are supreme, and, if they wish to adopt such a change in the theory of the government, it is their right to do so. But in order to do it they must amend the Constitution of the state. The present Constitution was not framed on any such lines.’

The comments are as true to-day as they were when uttered 30 years ago, with the qualification that the trend toward socialism and paternalism is now far more pronounced than at that writing. In fact the disposition to break from constitutional moorings by the entry into that field of legislation was never so active as at present. It is well that the door be kept closed, except when opened in the manner suggested by Judge Mitchell, through an amendment of the Constitution. That, with the general public welfare in mind, is the orderly and safe procedure, and is not open to criticism. The decision in that case applies at bar and condemns the statute here involved, unless some of the contentions of respondent take it without the rule there laid down. See, also, Minnesota Sugar Co. v. Iverson, 91 Minn. 30, 97 N. W. 454;Castner v. City of Mpls., 92 Minn. 84, 99 N. W. 361,1 Ann. Cas. 934.

[2] 2. But it is contended in support of the statute, that it is in fact founded in a public purpose, in that the Legislature intended thereby to aid in the prevention of forest fires in the northern part of the state; that it was designed, partly in that behalf, and partly in furtherance of the agricultural development of lands affected by aiding settlers and farmers in that section to clear their lands for farming operations. The statute does not sustain the contention, in so far as it has reference to forest fire prevention.

It is no doubt within the authority, and perhaps the duty of the state, acting through the legislative department, to provide such measures in the prevention of forest fires in the northern part of the state as may be adequate and effective for the purpose. In the past few years immense property loss has resulted from such fires, together with loss of life and permanent physical injuries to many settlers. A comprehensive plan devised for that purpose, of an effective nature, would be of the first order in public welfare legislation. But the utter futility of this statute for any such end it too apparent to challenge serious attention. In fact, the thought of forest fire prevention, as expressed in the statute, is secondary to other considerations, in the alternative, and apparently made a part of the statute to supply a possible public purpose in its support. There is no general scheme of firebreaks constructed across the country to revent the spreading of forest fires, and it seems hardly necessary to direct attention to the complete ineffectiveness in that respect of scattered and detached tracts of 5 and 10 acres each, located hither and yon in the large domain of unoccupied land in the section of the state to be affected.

3. It has also been suggested that in proceedings under the statute there is a community of interest, an interdependence between the two elements of the statute, beneficial to the landowner, justifying a compulsory joint improvement. We find no such situation or condition in the language or general purpose of the statute. A clearing of a patch of land thereunder is no way made dependent on its effect as a fire protection of the owner; the matter of fire protection may be wholly disregarded by those conducting the proceedings, and the landowner subjected to the compulsory improvement, with nothing in return save a heavy bill of expense taxed against him.

The statute is clear on this matter. Section 3 discloses the true intent of the law, and eliminates all theories of joint or reciprocal benefit. That section provides that the petition for the improvement shall state generally the nature and character of the land sought to be cleared, and particularly--

‘the improvement and betterment that will result to the land and the community therefrom, and that said improvement if ordered and constructed will result in the improvement of the public health and general welfare of that community assigning the reasons why and will prepare the land therein described for use and occupation for agricultural purposes and that in the absence of said improvement said land cannot be so used; that the construction of said improvement will result in the development of the community and promote and increase those conditions that will render that locality suitable for habitation and will result in the development of social and educational conditions.’

The petition is submitted to appraisers appointed to examine the land and report its character and adaptability for agricultural purposes, ‘and the effect of fire prevention resulting from such improvement.’ The proceedings are under the control of the Board of County Commissioners, and by section 8 that body is expressly authorized to--

‘order stricken therefrom and from the report of the engineer and appraisers any land found by the county board not suitable for agricultural purposes or for other reasons not suitably adapted to said improvement.’

The statute will be searched in vain for any provision requiring an improvement in the interests of fire prevention. No reciprocal benefit flows to the landowner, and the basis for a ‘compulsory joint improvement’ is wholly lacking. Bemis v. Drainage Co., 182 Ind. 36, 105 N. E. 496. The situation would be somewhat different if an effective firebreak and the improvement of the land for agricultural purposes were made interdependent; the one element contingent upon the other, each to be affirmatively established. Such, however, is in no way attempted by the statute; the public purpose of the statute therefore wholly disappears so far as that feature of the case is concerned. There is no fire protection, and no public benefit.

Stewart v. Great Northern Railway Co., 65 Minn. 515, 68 N. W. 208,33 L. R. A. 427, is wholly foreign to the question here presented. If in that case the Legislature had authorized the issuance of municipal bonds to aid in financing Stewart in his elevator business, it would have been the Becker Case over again, and no doubt fell by the wayside. The only matter there before the court was whether the owner of a private grain elevator could, under the statutes, condemn a site therefor on the railroad...