McHenry County v. Brady

Eobinson, J.

(dissenting specially). In this case several years ago the drainage commissioners of Bottineau and McHenry counties undertook as a drainage project to deepen, widen, and straighten the channel of the Mouse river in the said counties, and for 15 miles into Canada. In so doing they acted under the statute for the construction of drains, and all their doings must be governed by that statute in just the same manner as though there were no stream called Mouse river. The total cost of the drain as - estimated was $142,000, of which $70,000 was for improvements in Canada. This suit is a second edition of an appeal from Judge Templeton in which the weight of judicial authority was about equally divided. 21 N. D. 1, 129 N. W. 83. The suit is to restrain further proceedings for the construction of the drain, and that all doings of the commissioners be adjudged null and void. The majority of the judges denied the relief, and the result must be a multitude of suits, — a suit by each person to abate and cancel any assessment that may be laid against his land for any sum in excess of special benefits. With so large an expenditure in Canada charged *82against the land on this side of tlie line, it is but fair to- presume that nearly all the special assessments are or will be for an excessive amount. When a special assessment against land is materially in excess of benefits, the landowner is in no way compensated for the excess, by the good faith or bad faith or the mental capacity of the parties making the assessment. The law has no means of measuring their mental status. Good motives do not justify the confiscation of property by means of a special assessment.

The owner of land benefited by a drain must contribute his pro raía share to the expense of the drain to this extent that it contributes to the value of his land. That is the limit of his liability. The drain commissioners are bound to know the simple rule of law, and to levy no assessment against property in excess of actual benefits to the same. Drain commissioners are not judicial officers. They act under a statutory power and must keep within the limits of their power. When an assessment is materially in excess of benefits, it is a fraud on the law and a usurpation of power which the courts must correct.

Of course the drainage commissioners had no- power to make any special assessment against the lands in Canada, and they did not attempt to do it. The moment they stepped across the boundary line they ceased to have any official authority to contract or to do anything whatever. Then- every act done by them was that of a volunteer private party. And yet for the drainage improvements made, or to be made in Canada, the commissioners have assessed the total expense against the land and municipalities on the south side of the line, and in that way every assessment has been made for an excessive amount. The excess depends mainly on the sum which was added to defray the improvements made in Canada, including the surveys, the commissioners’ charges, and everything thereto appertaining, and there may be other excessive charges.

It is needless to spin out a long decision on questions of estoppel, res judicata, and the power of a state to make treaties with other states. In any view that may be justly taken of this case, the special assessments which have been made are all excessive and void. It is said that during the pendency of this action the drainage boards have gone on and completed the drainage project, and that Bottineau county has *83issued a large amount of drainage bonds, and that a large amount of spocial assessments have been paid from year to year by landowners and by townships and by Bottineau county, and that in McHenry county the special assessments have not been extended against the lands or the municipalities. But all that is immaterial under the stated law which governs this case. Drainage bonds are not negotiable, and the purchasers take them at their own risk, and when a party has once paid on his void special assessment he must have a proper credit in case of a valid reassessment. Eegardless of the legal defects in a drainage proceeding, every person benefited is bound to contribute his pro rata, share to the sum total of the legal expense, but a special assessment must never exceed the special benefits. And that is true even though the sum total of the expense be swollen to twice the amount of the special benefits. There is much reason for claiming that the drainage statute is void in so far as it permits a board of men to sum up and allow all the costs and expenses incurred in the making of a drain, without notice to any party. The cost does commonly include a large sum for themselves, their attorneys, and other matter in which they have a personal interest. And under the statute the board fixes the total amount, and then makes a list assessing a specific amount against each municipality, lot, or tract of land benefited by the drain. Then the list is filed in the office of the county auditor, and he extends the several amounts on the general tax list as a special tax against each tract of land and municipality, which special tax is collected and enforced in the same manner as other taxes. Comp. Laws 1913, § 2474. Thus, without notice, judgment is given and execution is issued for the sum of the special assessment. Certain it is that such a statute cannot be sustained without holding that 'any landowner may go into court and show that a special assessment against his property is excessive and unjust.

The x’ight to a preliminary contest on the mere percentage of benefits is no protection. It is only a contest on the percentage of cost and plunder that may be charged and extexxded as a tax agaixxst each tract of land. It in no manner affects the total amoxxnt, and that is by far the most important matter;

In so far as the Erickson Case, 11 N. D. 494, 92 N. W. 841, holds *84to the contrary, it has no support in reason or in the cases cited to sustain it. '

In this case it is clear that, without any legal notice to the parties interested, the sum total of the expense of the" drain was. computed and allowed by the commissioners, and extended, in whole or in part, against the lands and municipalities, and it was grossly excessive. Hence, it should all be set aside and declared and adjudged to be void.

Then on a proper notice and hearing, a personal notice by mail or otherwise, to every party interested, the board of commissioners might compute the total necessary expense of ‘ the drainage proceedings in McHenry county and in Bottineau county, and apportion and extend the same against the several tracts of land and municipalities. But regardless of the total expense, the sum extended and charged against any tract of land or municipality must not exceed the special benefits to the same.

In this case there is no use of talking of res judicala or the force of any prior decision binding on this court. Though it is the custom of courts to adhere to their own blunders and pile error upon error, the nefarious custom is not a law, and the custom is of less force when a party invokes a prior decision made by a bare majority of one judge, or by three judges voting against three judges, including the trial judge.

It is high time for the supreme judicial tribunal of this state to reconsider its errors and to place its decisions on a higher and better plane. In this state the drainage statutes have been used to promote graft and jobbery, with big fees and expenses for drain commissioners and their attorneys. The drainage laws and decision have given a rich reward to jobbery and oppressive litigation. In 11 N. D. reports, there are decisions in fourteen drainage cases arising in Cass county, and in each case the sum total of the drainage assessment was twice the benefits. In each case the legal fight was a mere sham; it was a game with loaded dice. In the Erickson Case, supra, the total cost was $12,000, including $13,000 for attorneys’ fees and commissioners’ fees and junketing trips around the country. Bridges costing $500 or $600 were built for no possible use only to make costs; bridges that have lain there to rot, without any possibility of using them. This Erickson Case has been a blind leader of the blind. It has no support *85in reason or in the cases cited to sustain it. It is directly contrary to the cases which are cited to sustain it.

As the Drainage Law was construed in the Erickson Case it is not constitutional. It puts the citizen completely at the mercy of the drain commissioners, permitting them to fix the total amount of an assessment against lands, including the charges of themselves and their attorneys and friends, without giving any notice to the owner of the land. Under the law of the land a person must have a fair hearing and a fair opportunity to contest the sum total of all costs and plunder that drain commissioners may charge against his land, and not merely a bootless opportunity to contest the rate or per cent of the amount. The one may be clearly right, and the other clearly outrageous.

Inasmuch as the Drainage Law gives no opportunity for a hearing on the sum total of all loot and costs the drain commissioners may cause to be extended as a lien and judgment against lands on. the tax list, the law does in effect give judgment and execution without a hearing. Comp. Laws 1913, §§ 2474, 2479. Hence the law cannot be sustained without holding that the landowner has an ample remedy by a suit to abate any assessment in excess of benefits to his land. In the Erickson Case, 11 N. D. at page 498, 92 N. W. 841, it is said thus: “It is well settled that where a provision is made for notice to and hearing of each proprietor at some stage of the proceedings upon the question of what portion of the taxes shall be assessed upon his land, there is no taking of his property without due process of law.” That proposition is grossly erroneous when applied to a special assessment, because, as we have said, the per cent may be just and reasonable, and the total amount may be outrageous. On this the court cites several decisions which hold directly to the contrary.

There is Hagar v. Reclamation Dist. 111 U. S. 701, 28 L. ed. 569, 4 Sup. Ct. Rep. 663. This was under the laws of California, and the special assessment was made without notice and sustained because it could only be enforced by legal proceedings in which the landowner might avail himself of any defense going either to the validity of the amount or of the assessment.

So in State ex rel. Dorgan v. Fisk, 15 N. D. 226, 107 N. W. 191, this court cites a Wisconsin and Nebraska case to sustain the power of commissioners to make drains and to levy assessments for the same. *86But in Wisconsin the drain commissioners are appointed by the court, and authorized to assess the amount of benefits, and to i’eport the same to the court, and then the court causes notice to be given to every person, and gives every person a fair opportunity to contest the amount, and even to call for a jury trial of the amount.

In Nebraska the statute makes the county commissioners a drainage board, and authorizes them to make assessments without notice; but the court holds that on such an assessment a party cannot be denied the right to a review by the courts.

In Hackney v. Elliott, 23 N. D. 373, 137 N. W. 433, Ex-Judge Goss wrote a thirty-seven page opinion on the drainage question, and concluded that the validity of the statute had been sustained by the United States Supreme Court. But the case was merely an appeal from a decision on demurrer, and it presented no question on the power of drain commissioners to levy a final assessment, without notice, or to act as judges in their own case. And the judges of this court may well take judicial notice of what is known to every person of common sense and observation in drainage cases, that a large bulk of the cost is composed of charges going into the pocket of the drainage commissioners. It is no uncommon thing for them to meet ten minutes on a day and charge up for a day’s work, and to allow their attorney a fee of $1,000 as a retainer. That was the retainer in the Erickson Case.

In this case we must realize that drain commissioners act under a statutory power, which must be strictly observed. They are not judges; they have no judicial power. The statute gives them no power to expend $70,000 on the construction of a drain in a foreign country, and to charge the same against land in this state. Yet, that is what they have done in this case. Hence, as this court does not provide for a fair and just rating and adjustment of the legal charges ag'ainst the lands, the result will be a multiplicity of suits, because every landowner will have a perfect legal right to commence and maintain an action for himself to abate all illegal and excessive charges against his own land, and to abate any assessment in excess of actual benefits, to the land. Of course so far as the special assessments have not yet been made and extended against any lands, there is nothing in the decision to prevent the same from being limited to actual benefits, — so as tb avoid needless litigation.