Pioneer Irrigation District v. Bradley

SULLIVAN, J. — This action was commenced to obtain the confirmation of the district court of the third judicial district, in and for Canyon county, of the proceedings under and. by which the respondent, the Pioneer Irrigation District, was organized, and the proceedings had and done by it relative to the assessment of the real estate within said irrigation district, and the issuance and sale of certain bonds of said district. The respondent district having filed its petition for said purpose in said court, the appellant, being a party in interest, appeared and demurred to said petition. Said demurrer put in issue the constitutionality of the statutes authorizing the organization of irrigation districts. It was overruled, and thereupon the appellant filed his answer putting in issue the material allegations of the petition. A trial was had upon the issues thus made, and the court entered an order and judgment confirming the incorporation of the respondent, thereby adjudging the same to be regular and valid, and all proceedings thereunder valid. During the progress of the trial, the appellant, by numerous objections, raised the question of the constitutionality of the original act and the act amendatory thereof, under which these proceedings were had. After judgment, the appellant made his motion for a new trial, which motion was overruled by the court, and this appeal is from said judgment and order. The questions presented for decision on this appeal involve the constitutionality of an act entitled: “An act to provide for a state engineer, defining his duties and regulating his compensation, and to provide for the acceptance by the state of Idaho from the United States of certain lands, and to provide for the reclamation, occupation and disposal of the same" — 316 — —approved March 2, 1899 (5th Sess. Laws, Pinney’s ed., 444) —and an act amendatory thereof entitled: “An act to amend sections 2, 11, 22 and 26 of an act entitled ‘An act to provide for the organization and government of irrigation .districts, and to provide foi the acquisition of water and other property, and for the distribution of water thereby for irrigation purposes, and for other similar purposes,’ approved March 6, 1899; and to amend section 9 of chapter 1, and section 16 of chapter 2 of an act entitled ‘An act to provide for a state engineer defining his duties; and regulating his compensation, and to provide for the acceptance by the state of Idaho from the United States of certain lands; and to provide for the reclamation, occupation and disposal of the same/ approved March 2, 1899, and to provide for the acquisition of right of way for the construction of canals or reservoirs or other irrigation works over or upon the lands of the state of Idaho.” (Sess. Laws 1901, p. 191.) The first contention is that said amendatory act clearly violates the provisions of section 16, article 3, of the constitution of this state, which section is as follows: “Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title; but if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be embraced in the title.” It is contended that said amendatory act embraces, at least, two separate and distinct subjects, and that said subjects have been individualized by former acts of the legislature, to wit, the subject of the formation of irrigation districts, and the subject of providing for the acceptance, by the state, from the United States, of .certain public land, under what is popularly known as the “Carey Act,” and the compensation and duties of the state engineer; and also the subject of providing for the right of way for canals upon said and other lands; that said subjects are all set forth in the title, and are all covered by the act, and that, therefore, said entire act must fall, as it is not in the power of the court to say which one of the subjects thus legislated on in — 317 — said act shall stand, or which shall fall. In support of the latter proposition, counsel cites, among other authorities, Cooley’s Constitutional Limitations, page 178, section 148, where the author says: “If the title to the act actually indicates, and the act itself actually embraces, two different objects, when the constitution says it shall embrace but one, the whole act must be treated as void, from the manifest impossibility in the court choosing between the two, holding the act valid as to one, and void as to the other.” And clearly, under the decided weight of authority, if said title contains two distinct subjects, and both of said subjects legislated upon in the body of said act, the act is absolutely void, as it is in contravention of said section of the constitution. The object and purpose of said constitutional provision is well understood. It was to prohibit the practice of bringing together into one bill subjects diverse in their nature, and having no necessary connection; to prohibit “hodgepodge,” or “log-rolling” legislation. (Cooley’s Constitutional Limitations, 172.) It was to avoid improper influences which may result from an intermingling in one and the same bill such things as have no proper relation to each other. (Walter v. Town of Union, 33 N. J. L. 352.) In State v. Ranson, 73 Mo. 78, it is stated that said provision is to prevent conjoining, in the same bill, incongruous matter, and subjects having no legitimate connection, or relation to each other, and in no way germane to the subject expressed in the title. In commenting on the generality of the title to bills (Cooley’s Constitutional Limitations, 6th ed., 172), the author says: “The generality of a title is therefore no objection to it, so long as it is not made a cover to legislation incongruous in itself, and which by no fair intendment can be considered as having a necessary or proper connection.” In Winters v. City of Duluth, 82 Minn. 127, 84 N. W. 788, the supreme court of Minnesota, in commenting on a section of the constitution of that state which provides that “no law shall embrace more than one subject, which shall be expressed in the title,” said: “It [said provision] was not intended to embarrass legislation by making laws more restrictive in their scope and operation than — 318 — is reasonably necessary in order to conserve the purpose for which the constitutional limitation was adopted; hence it must be liberally construed, and in a common-sense way” — and quotes as follows from State v. Cassidy, 22 Minn. 324, 21 Am. Rep. 765: "If the legislature is fairly apprised of the general character of an enactment, by the subject expressed in the title, and all its provisions have a just and proper reference thereto, and are such as, by the nature of the subject so indicated, are manifestly appropriate in that connection, and as might reasonably be looked for in a measure of such a character, the requirement of the constitution is complied with. It matters not that the act embraces technically more than one subject, one of which only is expressed in the title, so that they are not foreign and extraneous to each other, but blend together in the common purpose evidently sought to be accomplished by the law.” In commenting upon a constitutional provision like the one here under consideration in State v. Board of Commrs. of Humboldt County, 21 Nev. 235, 29 Pac. 974, after reciting the purpose of said provision substantially as stated in Cooley’s Constitutional Limitations, supra, the supreme court of Nevada said: "This then being the mischief against which this clause of the constitution is directed, it should be so construed as to correct the evil, but at the same time not to needlessly thwart honest efforts at legislation. There is scarcely any subject of legislation that cannot be divided and subdivided into various heads, each of which might be made the basis of a separate act, and in which the connection between them may be made a matter of controversy.....If the provisions of a statute all relate, directly or indirectly, to the same subject, have a natural connection, and are not foreign to the subject expressed in the title, it is permissible to unite them in the same act.....The objections should be grave, and the conflict between the constitution and statute palpable, before the judiciary should disregard a legislative enactment upon the sole ground that it embraces more than one subject.” And to the same effect is the decision in the ease of Montclair Tp. v. Ramsdell, 107 U. S. 147 2 Sup. Ct. Rep. 391, 27 L. ed. 431. In — 319 — People v. Parks, 58 Cal. 624, it is said: “Provisions of an act may be numerous; but however numerous, if they can be, by fair intendment, considered as falling within the subject matter of legislation, or necessary as ends and means to the attainment of the subject, the act will not conflict with the constitution.” This case is cited with approval and quoted from in People v. Mullender, 132 Cal. 217, 64 Pac. 299. The supreme court of Oregon in Investment Trust v. Sears, 30 Or. 388, 41 Pac. 931, said: “We are required to look to the body of the act, and the provisions therein contained for the ascertainment of the subject matter. The title is of but little importance, except to index and fairly indicate the subject of legislation. Matters germane to or properly connected with the subject, or matters of detail, have no place in the title, although the circumstance of their being found there affords no constitutional reason for rendering the act void or inoperative. .... The object of this clause of the constitution, so far as the ob jection here made to the act is concerned, is to prevent the combining of incongruous matters, and objects totally distinct, and having no connection nor relation with each other.” In State v. Doherty, 3 Idaho, 384, 29 Pac. 855, this court said: “Section 16, article 3, of the constitution, must be given a reasonable construction. It is sufficient if the act treats of but one general subject, and that subject expressed in the title.” In Commonwealth v. Brown, 91 Va. 762, 21 S. E. 357, 28 L. R. A. 110, the court of appeals, in commenting on a provision of the constitution of that state, like the one under consideration, said: “And, on the other hand, it was not intended to obstruct honest legislation, or to prevent the incorporation into a single act of the entire statutory law upon one general subject.” If the entire statutory law of this state upon the subject of irrigation and the reclamation of arid land should be incorporated into a single act, it would contain, among other provisions, every provision of the two acts, the constitutionality of which is called in question on this appeal. As bearing upon the point under consideration, see State v. County Judge, 2 Iowa, 281. Further citations might be made bearing upon this — 320 — point, as they are numerous, but we deem it unnecessary to make further citations. We shall now proceed to apply the well-recognized rule, laid down by the above-cited authorities, applicable to said amendatory act, and ascertain whether it is clear and beyond a doubt that said act is obnoxious to said provision of our constitution, for, if there be a doubt as to the constitutionality of said act, it must be held valid. First, as to the title of said amendatory act: The first paragraph thereof is as follows: “An act to amend sections 2, 11, 22 and 26 of an act entitled, £An act to provide for the organization and'government of irrigation districts, and to provide for the acquisition of water and other property, and for the distribution of water thereby for irrigation purposes, and for other and similar purposes/ approved March 6, 1899.” This title is sufficiently comprehensive to authorize the amendment of said sections 2, 11, 22, and 26 of said original act, and comes clearly within the purview of the provision of said section of the constitution, so far, at least, as the amendment of said four sections is concerned. Section 2, as amended, prescribes the steps that must be taken in the organization of an irrigation district, and every provision of said section is germane to that subject. It prescribes the duties of the state engineer in the organization of an irrigation district as follows: “A copy of such map, estimate, and. description of such boundaries shall be filed in the office of the state engineer at least sixty days before the date set for such hearing by the board of county commissioners. It shall be the duty of said state engineer to critically examine such map, estimate and description of said boundaries, and, if he shall deem necessary, to verify the same by a careful examination of the proposed district, and the site of the proposed works; and he shall prepare a report which shall .discuss the water supply of the proposed district and the feasibility of the plans submitted for the reclamation of the lands thereof, and all other features pertaining to the irrigation of the proposed district. The state engineer shall submit said report to the board of county commissioners at the meeting set for the hearing of — 321 — said petition for organization. Whenever the state engineer shall, after having critically examined the plans of said petitioners and looked into all that pertains to the reclamation of the lands of the proposed district, report to the 'board of county commissioners against the organization of such district, said board of county commissioners shall refuse to further consider such petition; but when said engineer shall approve of such organization, said board of county commissioners may adjourn such hearing from time to time, not exceeding four weeks in all, and on the final hearing make such changes in the proposed boundaries as they may find proper and as are approved by the state engineer, and shall establish and define such boundaries.” Sections 2, 3, and 4 of said act amend sections 11, 22, and 26 of the original act. It is not questioned but that each and every provision of sections 11, 22, and 26, as amended, are germane to the subject matter treated of, and are necessary ends and means-to the attainment of the purpose of said act. The second clause of said title is as follows: “And to amend section 9 of chapter 1, and section 2 of an act entitled ‘An act to provide for a state engineer, defining his duties and regulating his compensation, and to provide for the acceptance by the state of Idaho from the United States of certain lands; and to provide for the reclamation, occupation and disposal of the same/ approved March 2, 1899.” Section 5 of said amendatory act amends section 9 of the original act, and is as follows: “The state engineer shall inspect, or cause to be inspected, as often as he thinks advisable, every dam or embankment used for holding water in this state, where the same is more than twenty feet in height; and if, after any such inspection, such dam or embankment, in the opinion of the state engineer, is unsafe, and the life or property liable to be endangered by reason thereof, he shall order the owner or owners to repair the same so as to make it safe; and if such owner or owners shall neglect or refuse to repair the same after a reasonable notice to that effect has been given in writing by the state engineer, the said state engineer shall report the facts in the case to the judge of the district court of the district in — 322 — which such dam or embankment is situated, who shall, after hearing such facts, if he deem it necessary for public welfare, order the water master of the district in which such dam or embankment is situated, if there be one, if not, the sheriff of the county to draw off such water from behind such dam or embankment, and to keep said water drawn off till such time as the orders of the state engineer shall be complied with; provided, that when great damage would result to those depending upon such dam or reservoir embankment for irrigation if such withdrawal of water were made, and when such impending danger to life and property can be prevented at reasonable expense without such withdrawal being first made, the state engineer shall make an estimate of the cost of such necessary repair and report the same to the district judge, who shall, if he deem it necessary for the public welfare, order the board of county commissioners of the county in which said works are situated to make, under the direction of the state engineer, such repairs as are recommended by said engineer, and to pay for the same by warrants drawn on the current expense fund of the county. The county auditor and recorder shall immediately present a bill of the amount of such expenses to the person or persons owning or controlling such dam or embankment, and unless the same is paid within three days from the presentation of said bill, or as much as shall not be so paid, shall thereafter become a lien upon the said dam or reservoir embankment and other irrigation works appurtenant thereto, which amount shall be added to the taxes against such property, and shall be collected in the manner provided by law for the collection of other taxes.” Section 9 of the original act closes with the words “complied with,” and the amendment consists of all that follows said words, and begins with the word “Provided.” The amendment is contained wholly in the proviso. By the first clause of said amended section the state engineer is required to inspect, or cause to be inspected, every dam or embankment used for holding water in the state, where the same is more than twenty feet in height; and, if he is of the opinion that it is unsafe, he must order the owner or owners — 323 — to repair the same. While this provision of said section is sweeping, and apparently refers to all dams or embankments used for holding water in the state, whether for irrigation or other purposes, the subsequent provisions of said sections would indicate that the legislature had in mind only dams and embankments used to hold water for irrigation; for, if the owner neglects to repair an unsafe dam after the engineer has ordered him to do so, the engineer must report the fact to the district court of the irrigation district in which such dam is situated, who shall, after a hearing, if he deems it necessary for public welfare, order the water master of such irrigation district to draw off such water from behind such dam or embankment, and to keep said water drawn off till such time as the orders of the state engineer are complied with; and further on in said section the following language is used, “That when great damage would result to those depending upon such dam, reservoir or embankment for irrigation, if such withdrawal of water were made,” etc. Taking all of the provisions of said section together, it is evident that the legislature, in enacting said section, liad in mind dams and embankments used for storing waters for irrigation only, although the words used in the first provision of said section are sufficiently comprehensive to include all dams and embankments, whether used for storing water for irrigation or not. Section 6 of said amendatory act amends section 16 of said original act, and prescribes some of the duties of the state board of land commissioners immediately upon the withdrawal of any land for the state by the department of the interior of the United States, under and by virtue of the provisions of the act of Congress popularly known as the “Carey Act.” Said section 16, as amended, is as follows: “Immediately upon the withdrawal of any land for the state by the department of the interior, and the inauguration of work by the contractor, it shall be the duty of the board, by publication once each week in some newspaper of the county in which said lands are situated, and one newspaper at the state capital for a period of four weeks, to give notice that said land, or any part thereof as the board in their discretion may — 324 — deem is for the best interest of the state, is open for settlement, the price for which said land will be sold to settlers by the state and the contract price at which settlers can purchase water rights or shares in such works." Section 7 of said amendatory act amends section 19 of said original act, and it refers to the construction of irrigation works for the irrigation and reclamation of the land received by the state under the provisions of said act of Congress, the duties of settlers thereon, the amount of land that each settler must cultivate and reclaim before making final proof therefor, the making of such final proof, and the steps necessary for the settler to take in order to procure a patent from the United States to the land settled upon. The last clause of said title is as follows: “And to provide for the acquisition of right of way for the construction of canals or reservoirs or other irrigation works over or upon the lands of the state of Idaho." And sections 8 and 9 of said act provide the method of procedure for obtaining rights of way for the construction of canals, reservoirs, and other irrigation works over and upon lands owned by the state, and come clearly within that subject, as stated in said subdivision 3 of said title. It will be observed from the foregoing that all of the provisions of said act have but one general object, subject, or purpose, and that is the reclamation and irrigation of the desert or arid lands in the state. We do not think it will be seriously contended by any lawyer familiar with the irrigation laws of the state, and the amendatory act under consideration, that all of the provisions of said act are germane to the subject of reclamation and irrigation of the desert lands of the state; and if a complete codification of our laws touching upon that-general subject were made, it must include each and every of the provisions of the amendatory act under consideration and above referred to. And, as stated in Commonwealth v. Brown, supra, the provision of the constitution under consideration was not intended “to prevent the incorporation into a single act the entire statutory law upon one general subject.” The act in question does not attempt to do that. — 325 — It does, however, amend certain sections of prior separate acts, which acts are not adverse to the general subject of irrigation, but are congruous, and germane to that subject, and have a necessary connection therewith. Judge Cooley, in speaking of the history and purpose of said constitutional provision, said, “They were to prevent the practice of bringing into one bill subjects diverse in their nature, and having no necessary connection." Every provision of said amendatory act referred to in regard to irrigation districts is connected with the subject of irrigation. The duties of the state engineer >are almost, if not entirely, connected with the .subject of irrigation; and the act, which provides for the acceptance, by the state of Idaho from the United States, of certain desert lands, and to provide for their reclamation, occupation, and disposal, is germane to and connected with the subject of irrigation and the reclamation of desert land; and the acquisition of rights of way over and upon state lands for the construction of canals, reservoirs, or other irrigation works is not diverse to the subject of irrigation, but necessarily connected with it. We therefore conclude that said act embraces but one subject, and matters properly connected therewith, and that said subject is sufficiently expressed in the title. It clearly shows that the subject of said act is the reclamation and irrigation of desert or arid land; and the language used in the title is sufficient to express that subject. The title of said act is more of an index of the general subject of irrigation than said provision of our constitution requires; and an act must not be held void for that reason. It has been contended that the court has no authority to make a title to an act, and that is correct. In the ease at bar, we do not make a title to the act under consideration, but hold that the title thereto contains but one general subject, and matters properly connected therewith, and that the act treats of but one general subject and matters properly connected therewith, and is a sufficient compliance with said provisions of the constitution. — 326 — It is suggested by counsel for appellant that, where matters have become the subject of legislation under distinct heads, and under separate and distinct acts, they are thereby made separate and distinct subjects, and that such acts cannot be amended by one bill, as that would be including two subjects under one title. The suggestion of counsel is correct if the subjects treated in the separate bills are incongruous and diverse to each other. If they are totally distinct, and have no connection nor relation with each other, they cannot be amended by one bill; but if they treat of matters that are germane to the same subject, and might properly have been enacted in one bill, under one title, and include but one general subject, they may be amended by one bill. Simply because the legislature has enacted laws on one general subject by separate and distinct bills does not prevent a subsequent legislature from combining such acts into one bill, or amend such separate acts by one bill with a proper title. The next contention is that the original district irrigation act is unconstitutional, for the reason that it fails to require assessments to be made according to the benefits. Section 11 of the original act requires assessments to be made by acreage, and not according to the benefits; but that section has been amended by the amendatory act above referred to, and by its provisions directs that all assessments must be made according to the benefits accruing to each tract of land, and it is provided that the board of directors of each irrigation district "shall examine, critically, each tract or legal subdivision of land in said district with a view of determining the benefits which will accrue to each of such tracts or subdivisions from the construction or purchase of such irrigation works; and the cost of such work shall be apportioned or distributed over such tracts or subdivisions of land in proportion of the benefits accruing thereto; and the amount so apportioned or distributed to each of said tracts or subdivisions shall be and remain the basis for fixing the annual assessment levied against such tracts or subdivisions in carrying out the purpose of this act.” Said section further provides that the proceedings — 327 — of such board in the matters just referred to must be reported to and submitted to the proper court, with the other proceedings in the organization of such district, for the court’s confirmation, as provided in sections 16, 17, 18, 19, and 20 of said act. And, under the provisions of said sections, anyone owning land in such district may appear and show that “the cost of the irrigation works of such district has not been apportioned or distributed in proportion to the benefits accruing to any tract of land in said district.” It may be that the section of the original act providing for assessments to pay the cost of constructing or purchasing irrigation works for a district was unconstitutional, in that it failed to require them to be made according to the benefits accruing to each tract of land; but the amendatory act clearly provides for assessments to be made according to the benefits accruing to each tract of land in such district, and the action of the board in preparing lists of all real estate in their district, by which the assessments each year shall be made, may be contested in the district court, on the ground that such lists are not made with reference to the benefits accruing to each tract of land, Said amendatory act provides, in terms, that such assessments must be made according to the benefits, and provides the procedure or method by which the benefits to each tract of land in any irrigation district may be ascertained and adjudicated. As that is done said law is not repugnant to the provisions of the fourteenth amendment of the federal constitution, prohibiting the taking of private property without due process of law under the guise of taxation. It is a well-recognized fact that the amount of benefits is not susceptible of that accurate determination which appertains to a demonstration in geometry, but some reasonable means or method must be provided by which the question of benefits may be adjudicated; and the amendatory act, which takes the place of the original act under consideration, provides such means. It may be that in one district an assessment by acreage may be just, and according to the benefits, and in another not; and the law must provide some method whereby the taxpayer may have that ques — 328 — tion adjudicated, if he wishes to do so, aud in that regard the amendatory act is full and complete. That section of the original act, as amended, is not obnoxious to the fourteenth amendment to the. constitution of the United States, as it does not provide for taking property without due process of law. The judgment of the lower court must be affirmed, and it is so ordered. Costs are awarded to the respondent. Stoekslager, J., concurs.