Elliott v. McCrea

AILSHIE, C. J.

— This action involves the constitutionality of House Bill No. 92, passed by the twelfth session of the legislature and approved by the governor on the 21st of February last, and entitled “An act to provide for the establishment of drainage districts, and the construction and maintenance of a system of drainage, and to provide for the means of payment of the costs thereof, and declaring an emergency. ’ ’

The parties have specifically waived all question as to the procedure adopted for the purposes of raising the constitutional questions involved and for the purposes of this ease both parties agree upon the procedure.

This act authorizes the creation of drainage districts, provides for the selection of the necessary officers and the procedure to be adopted and pursued in carrying out the objects and purposes of the act. It might well be termed the complement of the irrigation act. The one provides for bringing water onto the land so as to render it productive; the other provides for getting water off of land so as to render it productive and habitable.

It seems that a petition in due form, signed by the requisite number of land owners in the district, has been presented to the clerk of the district court in and for Bonner county, with the request that he file the same, and that such further proceedings be taken as required by the act for the formation and organization of a drainage district. The clerk has refused to filh the petition or to take any action thereon, upon the ground that the act under which the proceeding is instituted is unconstitutional and void.

*528 The first point urged is that the act is in conflict with the constitution, for the reason that see. 5 of the act provides for the appointment of “drainage commissioners” for the district by the judge of the district court of the judicial district in which the drainage district is located, and that the act of appointing officers is purely an executive or ministerial duty and is not a judicial function. This objection overlooks the primary and fundamental question underlying the whole proposition, namely, that the legislature has in fact spoken and acted and has designated the officer who shall make the appointment. The fact that this officer is a judge of a court does not render it any more of a judicial act than if such act were performed by spme executive or ministerial officer.

Again, the constitution, see. 6 of art. 4, provides that the governor “shall nominate and, by and with the consent of the senate, appoint all officers whose offices are established by this constitution, or which may be created by law and whose appointment or election is not otherwise provided for.” The constitution itself provides the method of selection of the legislative, executive and judicial officers named in the constitution. The framers of the constitution, however, could not foresee what offices might “be created by law” subsequently enacted, and so they provided that such offices should be filled by the governor unless the appointment or election should be “otherwise provided for.” The legislature in this case has “otherwise provided.” They have clearly exercised their constitutional right in naming and designating the person or officer who shall make these particular appointments. This question has received frequent consideration by the courts, and they have almost invariably reached the conclusions we have indicated. (People v. Freeman, 80 Cal. 233 , 22 Pac. 173 , 13 Am. St. 122, and note at p. 125; State ex rel. Sherman v. George, 22 Or. 142 , 29 Pac. 356 , 16 L. R. A. 737, and note; Ross v. Board, 69 N. J. L. 291, 55 Atl. 310 ; In re Terrett, 34 Mont. 325 , 86 Pac. 266 ; In re Ryers, 72 N. Y. 1 , 26 Am. Rep. 88 .)

*529 It is next argued that the collection of assessments and taxes for benefits under the scheme provided in the act in question does not afford due process of law or the equal protection of the laws, and is therefore in violation of sec. 5, art. 7, of the state constitution. The first reply that may be made to this contention is that the assessments to be levied and collected under the provisions of the act , here in question do not constitute a tax within the purview of the constitution. This is rather an exercise of the power of the state for the general welfare. (Hagar v. Reclamation District, 111 U. S. 701 , 4 Sup. Ct. 663, 28 L. ed. 569; Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112 , 17 Sup. Ct. 56, 41 L. ed. 369; McGilvery v. City of Lewiston, 13 Ida. 347 , 90 Pac. 348 .) Under this act, the assessment is made only according to benefits to be received. Where no benefits will accrue, no assessment can be made. No question of taxation for governmental purposes or for the maintenance of the governmental functions of the state is imposed. This assessment is made in proportion to benefits to be acquired, and is intended primarily to serve and advance the proprietary interests of the land owners within the district, and to that end serve and advance the interests and general welfare of the state at large. Incidentally, this may and often will serve and improve the public health of the inhabitants of the district or render a district habitable which otherwise would be uninhabitable. To our minds, the same principles of law which would sustain and uphold the irrigation statute should sustain and uphold this statute. (Pioneer Irr. Dist. v. Bradley, 8 Ida. 310 , 101 Am. St. 201, 68 Pac. 295 ; Nampa etc. Irr. Dist. v. Brose, 11 Ida. 474 , 83 Pac. 499 ; Bissett v. Pioneer Irr. Dist., 21 Ida. 98 , 120 Pac. 461 ; Pioneer Irr. Dist. v. Stone, ante, p. 344, 130 Pac. 382 .)

Lastly, it is contended that the plan provided for bonding a district is violative of sec. 3 of art. 8 of the state constitution. This objection must fail, for the same reason that a like ohjeetion failed in McGilvery v. City of Lewiston, 13 Ida. 347 , 90 Pac. 348 ; Byrns v. City of Moscow, 21 Ida. 403 , 121 Pac. 1034 , and Hickey v. City of Nampa, 22 Ida. 46 , 124 Pac. *530 280 ; namely, that the assessment here authorized to be levied runs against each specific tract or parcel of land to be benefited, and the amount thereof is ascertained, determined and assessed in advance, so that every property owner can know just how much he is to pay and the bondholder can ascertain just the extent of the claim he has against each tract of land. In such case, there is no municipal liability and no municipality to be rendered liable for the payment of the indebtedness.

. The foregoing covers all the objections that have been raised against the constitutionality of this act. "We find no constitutional objection to the act on any grounds urged. The demurrer to the petition will be overruled and a peremptory writ will issue.

Sullivan and Stewart, JJ., concur.