Smith v. Peterson , 123 Iowa 672 ( 1904 )

Weaver, J.

This case involves the validity of a tax assessed to pay for the construction of a ditch under the provisions of Code, sections 1939 to 1951, and comes to us upon the appeal of the defendant from the judgment of the district court overruling a demurrer to plaintiff’s petition» Plaintiff’s land consists of two large tracts, but one of which is adjacent to the ditch, although both are assessed for a part of the expensé of construction on the theory that both are benefited by the drainage thus afforded. No notice of the proceedings or assessment was served on plaintiff except the notice provided for by section 1940, addressed to owners of lands through or abutting upon which the ditch was proposed to be located. The collection of these taxes is sought to be enjoined on the theory that the statute authorizing the same is unconstitutional and void, and this is the principal question argued by counsel. In the late case of Beebe v. Magoun, 122 Iowa, 94, we held that the provision of Code, section 194(1, by which land “in the vicinity of the ditch” is made subject to assessment for a part, of the cost of construction, is void, because it fails to provide for any notice to the owners oí such lands. It is obvious that under the rule thus established the tax assessed upon that part of plaintiffs lands not adjacent to the ditch must be held to be unauthorized and void, and as to such lands the decree below must be affirmed.

i. constitu- • statutes: paridity. It remains to be considered whether the tax may be enforced as to lands which are adjacent to the ditch, the owners of which did have the notice provided for in section 1940. That a statute may be held unconstitutional and void in part, yet valid ' and effective in other respects, has often been held. State v. Santee, 111 Iowa, 1; Huntington v. Worthen, 120 U. S. 97 (7 Sup. Ct. Rep. 469, 30 L. Ed. 588); Field v. Clark, 143 U. S. 696 (12 Sup. Ct. Rep. 495, 36 L. Ed. 294). On the other hand, if the different parts of the statute “are so mutually connected with and dependent on each other as conditions, considerations, or compensations for each other as to warrant a belief that the Legislature intended them as a whole, and that, if all could not be carried into ^effect, the Legislature would not pass the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent or conditional or connected must fall with them.” Warren v. Charleston, 2 Gray, 84; Pollock v. F. L. & T. Co., 158 U. S. 601, 15 Sup. Ct. Rep. 912, 39 L. Ed. 1108). Assuming the law to be as abgve indicated, is the assessment of a part of the cost of the ditch upon lands not immediately adjacent thereto such an essential feature of the scheme or plan of the statute that its avoidance should invalidate the whole enactment? In our judgment, the question must be answered in the affirmative. The end sought to be attained by the statute is the construction of ditches where the same are required, and the assessment of the cost upon the entire district or area of.land benefited by such improvement. A ditch of any considerable proportions along the low lands or swales of this state usually affords drainage more or less •complete for lands to a considerable distance on either side. Ditches such as are now ordinarily undertaken are enterprises of magnitude, involving the expenditure of large sums of money. To cast the entire burden upon the few whose lands lie in actual contact with the ditch, and relieve the many whose lands receive scracely less benefit, would be an injustice which we must assume the Legislature did not contemplate. In other words, we think it safe to say that the taxation of the cost of the ditch to all of the lands thereby -benefited was so clearly contemplated by the Legislature, and so essentially necessary to a just and equitable distribution of the burden among those who ought to bear it, that the statute would not have been enacted without it. We conclude, therefore, that the unconstitutionality of the provision for taxing lands in the vicinity of the ditch so destroys the force and effectiveness of the plan contemplated by the Legislature that no part of it is enforceable. Appellant seeks to avoid the precedent afforded in Beebe v. Magoun by the suggestion that in this case plaintiff did have notice as owner of lands immediately adjacent to tire ditch. This, we think, could not affect his rights as to lands which are confessedly not adjacent to the ditch, or through which the ditch is not constructed. If, however, the entire enactment is void because of its failure to require notice to owners of land in the vicinity which is sought to be taxed, then the service of the notice required by section 1940 would not give the board of supervisors any jurisdiction in the premises, and the whole proceeding is void ab initio. We regret that we are forced to this conclusion, for we are conscious that the law was designed to promote great public interests, and its invalidation will doubtless work no little hardship to'many. The defect in the statute is, however, one which has been more or less apparent for some time, and the Legislature has already undertaken to remedy it.

2. Injunction; void tax: estoppel. Appellant also makes the point that plaintiff, in any event, has an adequate remedy at law, and that injunction will not lie to prevent the collection of the tax. Where a tax is levied wholly without jurisdiction or authority, the rule relied upon by counsel does not apply. Brandirff v. Harrison, 50 Iowa, 164; Ft. Dodge, etc. v. City, 115 Iowa, 568; Beebe v. Magoun, supra. ±or like reason 7 ^ L *we think there can "be no estoppel by the failure of plaintiff to act inore promptly. Other questions are argued by counsel, hut our holding upon the constitutionality of the statute renders their consideration unnecessary.

The judgment of the district court is aeeirmed.