Wilkins v. Hillman
| Decision Date | 22 December 1914 |
| Docket Number | 6203. |
| Citation | 145 P. 1111,45 Okla. 451,1914 OK 669 |
| Parties | WILKINS, DRAINAGE COM'R, v. HILLMAN ET AL., COUNTY COM'RS AND EX OFFICIO COM'RS. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Jan. 26, 1915.
Syllabus by the Court.
In the construction of a drainage ditch, special assessments under the Constitution and laws of this state can be made only for corresponding specific benefits conferred.
Where substantial benefits are assessed to a county on account of drainage to the public highways, that part of the expense of constructing the drainage ditch apportioned to the county corresponding with the amount of benefits conferred, must be paid by the county out of funds raised by general taxation.
That part of the expense in constructing a drainage ditch assessed against a county for benefits accruing to such county by virtue of drainage of the public highways cannot legally be paid out of funds collected by special assessments made against the property owners in said drainage district.
The payment of that part of the expense in constructing a drainage ditch, assessed to the county for benefits to the public highways out of funds collected by special assessments levied upon the individual property located in such drainage district, would be taking private property for public use without just compensation and violative of the Constitution and laws of this state.
The viewers and appraisers assessed benefits to Lincoln county by virtue of the drainage of the public highways in the sum of $134,500, and assessed damages in favor of said county in the sum of $81,930, the cost of erecting 48 steel bridges across said drainage ditch on the public highways. Said assessment was confirmed by the county commissioners. No exceptions were filed, or appeal taken therefrom. The county commissioners refused to erect said bridges, or to pay the amount of benefits assessed to said county. Plaintiffs, who are certain property owners in said district, filed their petition in the district court against the county commissioners, and said commissioners, as ex officio drainage commissioners, and against plaintiff in error as drainage commissioner, praying for a writ of mandamus, requiring them to meet and proceed to let the contract for the erection of said bridges. The court found in favor of the county commissioners, and issued a peremptory writ of mandamus requiring the commissioners, as ex officio drainage commissioners, and the drainage commissioner to meet and proceed to let the contract for the construction of said bridges. Held, error.
Error from District Court, Lincoln County; Roy Hoffman, Judge.
Petition by J. W. Cherry and others against Ed Hillman and others County Commissioners and Ex Officio Commissioners of Deep Fork Drainage District No. 1, Lincoln county, and from the judgment Homer J. Wilkins, Drainage Commissioner, brings error. Reversed, with directions.
Embry & Hastings, of Oklahoma City, for plaintiff in error.
Streeter Speakman, Co. Atty., and F. A. Rittenhouse, both of Chandler for defendants in error.
On the 7th day of August, 1909, certain property owners residing in Lincoln county filed their petition in the manner provided by law with the board of county commissioners, for the purpose of creating a drainage district within said county. The petition was signed by the requisite number of property owners necessary to confer jurisdiction upon the county commissioners to proceed in the matter. Various proceedings were had, and there is no question raised as to the regularity of the proceedings in the organization of the drainage district and in letting the contract for the construction of the ditch. On February 26, 1914, J. W. Cherry, D. J. Norton, E. W. Hoyt, A. E. Patrick, and D. W. Collier, property owners in said district, filed their petition in the district court of Lincoln county against Ed Hillman, J. F. Collier, and R. A. Morrow, county commissioners and ex officio commissioners of Deep Fork Drainage District No. 1, of Lincoln county, and Homer J. Wilkins, as drainage commissioner. Plaintiffs recite the various steps taken in the organization of said drainage district, and the letting of the contract to construct the ditch; that they are property owners, affected by such proceeding. They further allege that the viewers and appraisers appointed to view and appraise said property reported the necessity of building 48 steel bridges across said drainage ditch on the public highways, and designated the localities where said bridges were to be constructed; that said viewers and appraisers estimated the cost of construction of said bridges in the sum of $81,930. Plaintiffs further allege that said viewers and appraisers assessed the benefit to Lincoln county in the sum of $134,550. They allege the progress made in the construction of said ditch and the necessity of building said bridges, and the refusal of said defendants, as county commissioners, or either as ex officio drainage commissioners of said drainage district, to construct said bridges, as was their duty to so do, although often requested. It is further alleged, without the construction of said bridges, it will be impossible for plaintiffs to cross said ditch, and many of the farms situated in said district will be cut in two by said ditch, and the owners thereof will not have access to portions of their farms; that they have no adequate remedy at law, and they pray for a writ of mandamus, compelling defendants to meet and proceed to let the contract for the construction of said bridges. An alternative writ of mandamus was issued, setting up substantially the foregoing facts.
Plaintiff in error, Homer J. Wilkins, as drainage commissioner, filed his answer and return to the alternative writ, wherein he sets out the various steps taken by the county commissioners in the organization of said drainage district and the report of the viewers and appraisers and the confirmation thereof by said commissioners. He avers that the viewers and appraisers found the benefits to Lincoln county in the sum of $134,550, and the damage in favor of Lincoln county for the construction of said 48 steel bridges in the sum of $81,930. After legal notice by publication, a hearing upon said report was had, and the same was by the commissioners duly confirmed, and no appeal was taken therefrom by the county; and the action of the viewers and the order confirming same have become final. He also makes a part of his answer the order of the board of county commissioners, of date, November, 1910, as follows:
He further alleges:
"And by such action the said board of county commissioners elected that Lincoln county would construct said bridges and offset the damages on account thereof, to wit, the sum of $81,930; * * * that the construction of said bridges is not a legal charge against said drainage district."
He further sets out resolution of the board of county commissioners of July 3, 1911, wherein the board recognizes the validity of the assessment of benefits made to Lincoln county and the provision made by said resolution toward the payment of said assessment, and the further resolution of said board, providing for the issuance of negotiable special assessment warrants with coupons attached in the aggregate sum of $134,000, to provide the ready funds to pay said sum. He alleges that they refuse to issue said warrants or to build said bridges. The county commissioners filed a demurrer to the petition and alternative writ of mandamus. Plaintiffs filed a demurrer to the answer and return of the drainage commissioner. Upon a hearing of the issues thus raised, the court sustained each of said demurrers; and a peremptory writ of mandamus was issued against the county commissioners, as ex officio commissioners of Deep Fork Drainage District No. 1, and plaintiff in error, as drainage commissioner, requiring them to meet and proceed to let the contract for the construction of said 48 bridges. From this judgment plaintiff in error prosecutes error to this court.
There is no question raised on this appeal relative to the necessity of the construction of said bridges, but all parties seem to agree that they are indispensable. The sole question for determination is as to whether said bridges should be constructed by the county commissioners at the expense of and in behalf of the county, or by the drainage commissioners and at the expense of said district. By stipulation filed in this court, the case-made has been amended by attaching a true transcript of all the proceedings had before the county commissioners relative to said drainage district. We presume this is done in order that the court may determine the question on the merits and finally fix the liability of building these bridges. A proper determination of the question presented requires the consideration and construction of several provisions of the act of the...
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