I concur. There is, however, one issue which I believe warrants further consideration.
Under the Act a proceeding to have a district organized can be initiated by a small minority of the land owners within the proposed district. The plaintiff contends that since such a minority may initiate the proceedings, due process of law requires that each other land owner within the proposed district be given: (1) an opportunity to be heard on the question of whether his land should be included in the district and on the assessment; and (2) an opportunity to vote or otherwise be heard on the question of whether the contemplated district should be organized at all, i.e., to have it determined whether the majority of the land owners want such a district.
Section 100-11-7 provides that on or before the date set for the hearing on the petition for the organization of the district, any individual land owner may deny any allegation of the petition. Section 100-11-4 provides that the petition for the organization of a district shall set forth that the property within the proposed district will be benefited by the accomplishment of the purposes enumerated in *Page 77 Section 3 of the Act. Since any land owner may deny this or any other allegation in the petition, each land owner has a chance to protest the inclusion of his land in the district. The opinion of Mr. Justice Wade demonstrates that the notice and opportunity to be heard in this regard are adequate. I do not understand the plaintiff to contend otherwise.
The plaintiff does strenuously argue that the act fails to provide for the giving of notice so that the objecting land owners may voice their disapproval, and if the objectors are sufficient in number, defeat the organization of the district. This, he urges, renders the Act unconstitutional for it permits a small minority to have a district organized even though the majority of the land owners affected do not want such a district. In making this argument — and a substantial portion of his brief was devoted to it — the plaintiff has assumed that due process of law requires that land owners whose lands are likely to be embraced by the district, be given a chance to determine whether or not they want such a district. This, however, is not the law.
In upholding the constitutionality of the New Mexico Conservancy Act, the Supreme Court of New Mexico held, in In reProposed Middle Rio Grande Conservancy District, 31 N.M. 188,242 P. 683, that the Legislature could by legislative fiat create such a district and declare the benefits; that no constitutional rights would be violated so long as notice and hearing were given on the amount of the assessments. This holding is in accord with principles discussed in several opinions of the United States Supreme Court. In Goodrich v. City of Detroit, 184 U.S. 432,22 S. Ct. 397, 46 L. Ed. 627, the court held that the owners of lands which may be assessed to pay for local improvement need not be given notice of the proceedings to make the improvements, in order to constitute due process of law, if none of their property is condemned to make the improvement and they have notice and an opportunity to be heard on the question of the assessment of their property. It has also been held that notice *Page 78 of a proceeding merely to determine whether the contemplated improvement should be made is not required by due process of law; hearing on the assessment being sufficient. Chicago, M. St. P. P.R. Co. v. Risty, 276 U.S. 567, 48 S. Ct. 396, 72 L. Ed. 703;Utley v. City of St. Petersburg, 292 U.S. 106, 54 S. Ct. 593,78 L. Ed. 1155, dismissing appeal 111 Fla. 844, 149 So. 806, rehearing denied 292 U.S. 604, 54 S. Ct. 712, 78 L. Ed. 1466.
It becomes evident that due process requires only that each land owner be given notice and a hearing before his lands are included within the boundaries of the district and before they are assessed for making the proposed improvement. He has no constitutional right to require a vote to determine whether the majority want such an improvement constructed. This latter is purely a question of legislative policy. A district could be organized without notice or hearing so long as each land owner was given a hearing on the question of whether his lands have been benefited and should be assessed to pay for the said improvement.
While, as above indicated, due process does not require that affected land owners be given a chance to vote on the desirability of the constructing of the proposed improvement, it certainly is consistent with our principles of government to follow such a procedure. Thus before organizing conservancy districts and making other improvements which will be paid for by assessing the lands benefited, it is not surprising that legislatures often provide a procedure by which the affected land owners can voice their disapproval, and if the objectors are sufficient in number, defeat the construction of the proposed improvement.
Section 100-11-7 purports to provide such a procedure. After a petition for the organization of a district is filed, objectors are given the right to file a protesting petition. If the protesting petition is signed by the requisite percentage of land owners, the proceeding to organize a district must be dismissed by the court. The plaintiff urges that as a practical matter objecting land owners could *Page 79 not file this protesting petition because of the failure of the Act to require the giving of notice that a petition for the organization of the district is pending. It should, however, be noted that Section 100-11-6 requires the Clerk of the Court to publish notice of the pendency of the petition and notice of the time and place of hearing thereon. Certainly if the manner of and the time for giving notice were otherwise sufficient, it could not be successfully contended that notice that a petition was pending would not put objecting land owners on notice that they must file their objecting petition or waive their right to do so.
It is not seriously contended that notice by publication would not suffice. The contention that the time allowed between the giving of notice that a petition is pending and the time when the protesting petition must be filed is unreasonably short warrants further comment. Under Section 100-11-6 the judge must set the hearing on the petition for not less than 60 days nor more than 90 days from the date when it is filed. Section 100-11-2 provides that notice by publication must be published once a week for three consecutive weeks and that not less than 14 days must intervene between the first and the last publication. Section 100-11-7 provides that this protesting petition must be filed at least 30 days prior to the date set for the hearing. Thus if the court were to set the hearing for 60 days from the date of the filing of the petition and the clerk were to start publication of notice the next day, at least 15 days would elapse before publication were completed. The protest petition, which must be filed not less than 30 days prior to the date set for the hearing, would then have to be filed within the next 15 days or it would be too late. Where the proposed district was large and embraced lands owned by many individuals scattered throughout several counties, it may well be that this would not be adequate time to permit the protestors to sign and file a petition. There may, on the other hand, be a petition for the organization of a small district in which there were fewer land owners so that 15 days *Page 80 or even less would be adequate time to permit the requisite percentage of protesting land owners to sign and file their petition.
The trial court, in its discretion, is authorized to set the hearing as much as 90 days from the date of the filing of the initiating petition. By so doing the trial court could require the giving of as much as 45 days notice. This would probably be sufficient time in all cases. Thus, in a given case, the trial judge under the wording of the Act, could set the hearing so that there would not be sufficient time between notice and the time when the protest petition must be filed to give the protestors a chance to be heard, or he could so set the date of hearing that the time allowed for filing the protest petition would be adequate. Obviously the Legislature intended to permit protestors to file such a protesting petition. But it also did not wish to have the hearing for the establishment of the district delayed longer than necessary — and directed that the district court hear the petition as an advanced case. See Section 100-11-7. The powers given to the district court are designed to be flexible so that both of these intentions could be effectuated. Where the district is small, the hearing may be set at 60 days thus speeding the hearing; where the district is large the hearing may be set as much as 90 days from the date the petition is filed thus allowing more time to file protests. But in any event the protesting land owners are to be given a chance to protest. If the trial judge were to set the hearing so that the time allowed for filing the protesting petition would be unreasonably short, it would be an abuse of discretion, for by so doing he would defeat the legislative intent. But since the Legislature could establish such districts by legislative fiat, without notice or hearing on whether the improvement should be made, it would not deprive the owners of due process of law. Nor would it render the Act unconstitutional if the time allowed were to prove to be inadequate for, in addition to this chance to protest, the act provides a procedure by which each land owner can be *Page 81 heard on the question of whether his lands should be included and assessed to pay for the proposed improvement.