(dissenting). — The statute under which-the proceedings in controversy were had was first enacted in the year 1872 (Acts Fourteenth General Assembly, chapter-220), and was incorporated in title 10 of the Code of 1878,. which related to internal improvements. There is nothing in-the language of the statute which indicates specifically that it was designed to apply to territory within incorporated cities- and towns. It does not refer to them, nor does it contain any of the terms ordinarily used to designate real estate within such corporations, as, “lots.” That fact, considered aloner would be of little, if any, importance in view of the general power given by the statute to boards of supervisors to cause-to be constructed ditches and drains whenever it would “be-conducive to the public health, convenience, or welfare.” But the statute does not state that the board of supervisors may cause a ditch or drain to be constructed wherever it would be-conducive to the public health, convenience, or welfare. A petition signed by persons owning “land” adjacent to the improvement is required, and the statute provides for the-assessment of all “land” benefited by the ditch or drain, foithe cost of constructing, repairing, or opening it. The terms-“land” and “real estate,” it is true, are interchangeable, and town lots are land; but it is true, as a general rule, when real estate in a city or town is intended to be included within the-*472purview of a legislative act of this state, that the terms “lots •aud lauds,” or “lots and parcels of land,” or similar designations, are most commonly used. Thus'the general assembly which first enacted the statute in question also enacted a statute which referred to the platting of “any town lot or parcel of ground within any incorporated city or town, or any tract of land containing forty acres or less,” which had been divided for the purposes of sale, when the subdivisions could not be accurately described without noting the metes and bounds. Chapter 94, Acts Fourteenth General Assembly (sections 478 and 479, Code of 1873), related to assessments by municipal corporations for street improvements, and used the terms “lots or lands,” “lots or parcels of land,” and “lot or land,” in designating real estate subject to such assessments. The fact that these and similar terms are most commonly used to designate real estate within cities and towns, although not in any sense controlling, may properly be considered with •other relevant facts to ascertain the legislative intent in enacting the statute in question. From a time before that was enacted, incorporated cities and towns have had the power to lay off, open, establish, and extend streets, alleys, and public grounds (Code of 1873, section 464); to provide for the grading and repair of streets, avenues, and alleys, and the construction of sewers (section 465) ; to construct sidewalks, and 'to curb, pave, gravel, macadamize, and gutter any highway or alley therein (section 466) ; to procure and control public •squares, streets, parks, commons, cemeteries, and hospital grounds (section 470) ; to erect waterworks (section 471) ; and, by a later statute, to establish and maintain gas works or -electric light plants (Acts Twenty-second General Assembly, chapter 11). Such corporations also have power “to prevent injury or annoyance from anything dangerous, offensive or unhealthy, and to cause any nuisance to be abated” (Code of 1873, section 456), and to do many other things which need not be enumerated. Section 920 of the Code of 1873 gave to each board of supervisors “general suuervision over the highways in the county, with power to establish and change them,” as provided by the Code. The language of the Code did not *473limit the power of such boards to territory outside incorporated cities and towns, but was broad enough to include territory within them. This court held, however, in Gallaher v. Head, 72 Iowa, 173, that the jurisdiction and power of such •corporations over territory within their limits was exclusive for the purpose of establishing highways or streets on or through such territory. ’ Section 969 of the Code of 1873, •authorized township trustees to “divide their respective townships into such number of highway districts as they may deetn necessary for-the' public good.” That provision was considered in Clark v. Town of Epworth, 66 Iowa, 462, and said to be .broad enough to confer upon the trustees unrestricted control over the establishment of highway districts in th'eit townships; but-it was -held', in effect, that such power would be inconsistent' with that conferred upon cities and towns within the townships: - See, also, Railway Co. v. Murphy, 106 Iowa, post.' I am' of the opinion that the rule of the cases cited is applicable in -this case,- and should be controlling. The .streets, alleys, and other public grounds of incorporated cities and towns, their sewers and drains, are usually established and improved according to well-defined plans, and grades duljfixed, with the design of perfecting a system of improvements which shall be efficient, and harmonious in all its parts. But if boards of supervisors may invade such cities and towns, etit ditches therein, and construct drains, without reference to the powers of the municipalities invaded, or the system of improvements they have established, it is evident that serious conflict of authority may arise. The board of supervisors might conclude to establish an open ditch where the interests of the people of the city or- town demanded a closed sewer, • or to so locate and construct the ditch as to greatly impair or destroy the sewerage system of -the •city or town,, or injure its public parks or other grounds, or to require the construction of bridges where, under the plan of the municipality, none would have been required, or to interfere in numerous other ways with the proper exercise of municipal functions. To say that the boards of supervisors act for the people of cities and towns as well as for other *474people of their counties, and for the benefit of all, does not answer the objections suggested. Experience shows that it is not often, if ever, in the interest of the public, to vest in two separate and independent bodies concurrent but independent jurisdiction of the same subject-matter, and that, where it is done, unseemly conflict in the exercise of authority, greatly to the injury of the public, is apt to en'sue. Eor that reason, as well as others, concurrent power is rarely vested by legislative acts in separate and independent bodies or agencies.
It is said, however, that incorporated cities and towns did not have power to drain such land as that in question, but only to drain water standing in depressions or pools. Even if that were true, it would not follow that the board of supervisors could have drained such lands by constructing ditches or drains within incorporated cities and towns. But, in my opinion, it is not time that such corporations lacked the power to drain wet land which was a menace to public health. They had power “to prevent injury or annoyance from anything dangerous, offensive or unhealthy, and to cause any nuisance to be abated.” Code of 1873, section 456. The manner in which the power thus conferred should be exercised was not pointed out, but of necessity it authorized the doing of whatever was reasonably necessary and lawful to accomplish the end authorized ; and, if a ditch or drain were necessary to accomplish it, then the power to construct the ditch or drain was included in that given. The fact that the cost of such ditch or drain could not have been assessed upon the real property which was benefited by it, in the mannerprovided by the general drainage act, does not seem to me to be important to ascertain the power given. The purpose of the drain would not be to reclaim laud for the purposes of cultivation, but to preserve the public health. I do not assent, however, to the conclusion of the majority that the land in question was not within the scope of section 480 of the Code of 1873. That provided that “municipal corporations shall have power to cause any lot or land within their limits on which ¿vater at any time becomes stagnant, to be filled up or drained in such manner as may be *475directed by a resolution of the council or trustees,” and to do the work required at the expense of the corporation in the first instance, in case the owner of the land neglected or refused to do the work. But the cost of the work in such a case was a debt collectible of the landowner, and a lien upon the property drained was given. The petition on which the board of supervisors ordered the construction of the ditch stated, in substance, that upon the land to be drained were “large collections of standing water, * * * endangering the public health, convenience, and welfare.” The report of the county surveyor shows that the land to be drained was low and swampy, “which, of ah ordinary year, would contain stagnant water.” That this is true is not denied, but is affirmed by the appellants, who state in argument that “it clearly appears from the abstracts on file in this case that a large area of farm lands lying to the east, south, and southwest of the incorporated town of Clarion, in Wright county, to the extent of several miles, is low, wet, marshy, and covered with stagnant water in ordinary years; that these stagnant waters were a 'continual menace to the health of the inhabitants of the surrounding country; * * * that due regard for the public health, convenience, and welfare of the inhabitants of the surrounding country imperatively required the draining or ditching of these lands.” The location of the land is evidently thus fixed by reference to the platted portion of the town of Clarion. It is shown that nearly all of the land to be drained is within the territorial limits of the town, and it is admitted that in ordinary seasons water becomes stagnant on the land. It thus appears beyond question that it is within both the letter and spirit of section 480, and that the town had ample authority to cause it to be drained. It appears to me clear that it could not have been the legislative intent to give to the board of supervisors also the power to do the same. That would be repugnant to the power expressly conferred upon the town, and contrary to the general policy which is followed in the enactment of statutes. The probable fact that a large area of wet, *476swampy land was included within the corporate limits of Clarion, which was not needed for dwelling houses or .other •ordinary purposes of a town, and which could, if drained, he used most profitably for agricultural purposes, and the fact that the cost of draining might be more equitably assessed and promptly collected under the statute in question, if applicable, than under the provisions of section 480, do not authorize the conclusion that the statute in question applies. It was within the legislative power to prescribe one method for draining land outside incorporated cities and towns, and another for-draining lots and lands within their limits;- and that appears to-me to be what was done. If a mistake in that .respect-was made by [he general, assembly, it may give the remedy. For reasons' indicated I am of the opinion-that sections 1207 to 1216, inclusive, of the Code of 1873, did not authorize boards of supervisors to construct ditches or drains within municipal corporations. The fact that the ditch in question may have, .been .for the public -benefit, and :that it was so constructed as mot to injure, property owners, did-not .authorize -the assessments' in controversy. If the board lacked the power to construct the-ditch, it could not make the' property affected liable for its cost. The opinion of the majority discusses various matters which do not appear to me to bp involved.in a determination of this case, and I do not express any- opinion in regard to. them, but on grounds set Out I think the judgment of the district court should be affirmed.
Waterman, J., concurs -in this dissent.