State v. Risty

PODEEY, J.

This is an original action brought by the state for the purpose of enjoining and restraining the defendants from apportioning benefits and levying assessments against the land of plaintiff for the construction of that certain improvement designated as drainage ditch No. I and 2 in Minnehaha county. The defendants Risty, Olsen, Even, Alguire, and Stringham are the members of the board of county commissioners of said county. Dale E. Howe is auditor, and McFarland is treasurer of said county.

The improvement involved in this case is the same that was involved in Gilseth v. Risty, 46 S. D. 374, 193 N. W. 132. Also, in Chicago, R. I. & P. Ry. Co. v. Risty (D. C.) 282 F. 364; Id. (C. C. A.) 297 F. 710, and 270 U. S. 378, 46 S. Ct. 236, 70 L.ed. 641.

The complaint purports to set out four separate causes of action. To this complaint defendants interposed a separate demurrer to each cause of action; each demurrer being based on the ground that the complaint does not state facts sufficient to constitute a cause of action.

In its first cause of action set out in the complaint, it is alleged that plaintiff, in its capacity as a sovereign state, is charged with the duty of maintaining a penitentiary for the detention and safekeeping of persons convicted of crime; that such penitentiary is located just north of the city of Sioux Falls; and that in connection with the said penitentiary plaintiff owns a large tract of agricultural land that is used and operated as a means of furnishing labor for the inmates of said penitentiary and for the production of food and supplies for said inmates.

It is further alleged that about the month of July, 1907, a petition was filed with the board of county Commissioners of Minnehaha county praying for the establishment of a drainage ditch, the outlet to which was to be in the Big Sioux river just to the north and east of the said .penitentiary buildings, and which ditch was to be extended from said outlet in a northwesterly direction for a distance of about i mile; then approximately due north for a distance of about 2 miles, and had one short lateral. Such proceedings were had by the board that a drainage district; designated as “drainage ditch No. 1,” was established. .S'aid ditch had a bottom width of 40 feet and was constructed and completed at a cost of approximately $46,000. 'Before this ditch was fully completed a second petition was filed, praying for the establishment of a second ditch with its initiatory point in the upper end of ditch No. 1 and to extend north from said point for a distance of about 4 miles. Before action was taken on this petition another petition was filed asking that said ditch be extended north for a distance of about 12 miles. Pursuant to these two petitions, such action was had that a second drainage district, designated as “drainage ditch No. 2,” was established. This ditch was constructed. It had a bottom width of 40 feet and cost approximately $81,000.

Drainage ditch No. 1 was paid for by apportioning the benefits and levying assessments against the lands benefited by the construction of such ditch. Drainage district No-. 2, when established, included all of drainage district No. 1, and the cost thereof was paid by an apportionment and assessment against all the land in both districts. As a part of the drainage project, a concrete trough or spillway was constructed near the penitentiary to- convey the water from the entire drainage system down a drop of something like 100 feet into the Big Sioux river.

In the spring of 1916, an unusual freshet washed out and destroyed the said spillway, and the water commenced to cut away the hill and threatened to injure or destroy the penitentiary buildings, and otherwise 'damaged the property of the plaintiff. At about the same time the water in the river cut through its banks into the ditch at a point above plaintiff’s property. The result of this was to permit the whole river to run through the drainage ditch, over the hill at the penitentiary, and into the river below the city of Sioux Falls. This not only threatened to destroy the penitentiary buildings, but to destroy the water supply of the city and the water power at the falls. The county commissioners immediately placed dams in the ditch and turned the water of the river back into its natural channel through the city.

About this time a petition was filed with the board praying that drainage ditch No. i he permanently closed and that the water ibe turned into and through 'Covell Lake to the west of the city and from there back into the river.. Such proceedings were had pursuant to said petition, that the board, on the 8th day of July, 1916, made an order permanently closing the outlet to drainage ditch No. 1, and establishing the Coveil Lake outlet. No proceedings of any kind appear to have been taken pursuant to this order, and on the 3d day of Alugust, 1916, a petition, signed! by the city of Sioux Falls, F. L. Blackman, and others, was filed with the board setting forth, among other things:

“That drainage ditches Nos. 1 and 2, and the outlet thereto as constructed, were and are insufficient to accomplish the purpose for which they were constructed, and insufficient to' properly drain the agricultural lands within the district or territory supposed to be drained thereby, and insufficient for the drainage of other agricultural lands between the mouth or outlet thereof and the land heretofore included within the assessment districts of said drainage ditches Nos. 1 and 2; that it .is necessary for the drainage of agricultural lands within said drainage districts Nos. 1 and 2, and also agricultural lands lying above the mouth of said spillway and between the mouth thereof and the present boundaries. of said drainage ditches Nos. 1 and 2, to reconstruct, deepen, widen, and improve said drainage ditches Nos. 1 and 2, and to construct a new outlet or spillway thereto, and that in the reconstruction of the same, it will be necessary that the same be cleaned, deepened, and widened, and that certain levees, dikes, floodgates, and barriers thereto' be constructed to such extent as might be necessary to carry off the surplus or flood waters and properly drain and protect the lands within said drainage districts and within the areas hereinbefore described; that to make the foregoing drainage system complete and adequate for the purpose for which it was designed, it will be necessary to straighten, clean out, and deepen the channel of the Big Sioux river at a number of places within the said drainage district; * * * that the lands and territory likely to be affected by the construction of the .new spillway and the reconstruction and improvement of said drainage ditches, and which would be drained and benefited and protected thereby, include all the lands lying in the valley of the Big Sioux river and included within the present boundaries of said drainage districts Nos. i and 2, as well as all of the lands in the valley of the Big Sioux river between the mouth of said spillway and the city of Dell Rapids, that are subject to overflow and will be subject to overflow by t'he waters of said river, if the outlet to said ditches Nos. 1 and 2 be abandoned and said outlet closed, and that said drainage district should be so extended' and enlarged as to include all lands and property benefited thereby as far down the valley of the Big ¡Sioux river as the. mouth of said outlet or spillway.”

Such proceedings were had pursuant to the petition that the board by resolution and order, on the 14th day of August, 1916, established the exact line and width of said ditch and fixed the time and place for hearing said petition, and gave notice thereof, and on October 3, 1916, established said ditch, the center line of which was the same as the center line of ditches Nos. 1 and 2, covering the same right of way and territory, and with a bottom width of approximately 90 feet, and named the same “drainage ditches Nos. I and 2.” This ditch, together with dikes and controlling works, was constructed. The river was canalized and straightened for a distance of about 6 miles, all at a cost of approximately $255,000.

A new topographical survey of all the territory, including lands below the original drainage district and above the outlet thereto, was had, and on the 10th day of June, 1921, the board adopted a new unit and fixed an apportionment of benefits to all the aforesaid lands and properties, including the property of the plaintiff above mentioned, and gave notice as provided by law for the equalization of the benefits to said lands and properties affected'. Before the date set for the said hearing six suits were started in the federal court to enjoin the board from equalizing the tentative apportionments already made and from proceeding to make any apportionment or equalization, and upon which plaintiffs in said suits obtained a temporary restraining order. On the date set for the hearing of said equalization, namely, August 1, 1921, -the board met pursuant to said notice, but neither plaintiff nor any other interested party appeared or filed any protest or objection tO' said apportionment. Thereupon the board adopted a resolution postponing the consideration of the apportionment of the 'benefits on drainage ditches Nos. 1 and 2 to August 22, 1921, at 2 o’clock p. m. of said day, which order and resolution of adjournment was passed from time to time to various dates and is still effective.

The restraining orders in the above-named suits in the federal court were made permanent as to the Great Northern Railway Company, the Northern States Power Company, and the Chicago, Rock Island & Pacific Railway Company, but neither plaintiff in this action nor any other interested party made any remonstrance or filed any objections with the board to the tentative apportionment made by the board, which apportionment to this plaintiff amounted to the total sum of $4,489.

The foregoing facts are common to each of the four causes of action set out in plaintiff’s complaint.

Upon the foregoing facts, plaintiff in support of its first cause of action contends that the petition above set out and filed on the 3d day of August, 1916, asking for an enlarged- drainage ditch over the line of the two old ditches, was but a pretense; that the board had only authority to repair and maintain drainage ditch No. 1 and drainage ditch No. 2, and was without any right or authority to cause a new topographical survey of all of said territory to be made or to adopt a new unit or to make a new apportionment upon such new topographical survey of all of said territory, and was without right or authority to enlarge said old drainage ditches or to establish an enlarged drainage ditch to- include other land and property below the o-ld ditches but not included within the old assessment -districts; that the board’s only authority was to repair the old- ditches an-d make assessments for the payment of such work, as directed by sections 8470 to 8477, R. C., and that such assessments must thereby be made upon the old apportionment had- for the construction of such original ditches; that -under the old apportionment the assessment against plaintiff’s property would have amounted to only $868.17, while under the pretended new apportionment the assessment will amount to $4,489; an-d. that the board will, unless enjoined by this court, make an assessment upon such new apportionment to plaintiff’s damage.

This presents for the consideration of the court the questions, first, whether the board- had- authority to establish and thereafter construct a new or enlarged drainage ditch over the exact line of. the two former ditches; second, whether the board, under such conditions, ¡has authority to adopt a new unit and make a new apportionment; and third, whether the board can, under such proceedings, include lands other than those included in the original districts.

Section 8458, R. C., gives the board equal authority to do three things: First, to establish and cause to be constructed any ditch or drain; second, to provide for the straightening • or enlargement of water courses or drains previously constructed; and, third, to provide for the maintenance of such water course, ditch, or drain previously constructed.

Section 8476, R. C., gives the board the same power to deepen or widen any drain, or to straighten, clean out, or deepen the channel of streams, and to construct, maintain, remodel, or repair levees, dikes, or barriers for drainage purposes, that are conferred upon it by law to establish and construct drains, but where such deepening, widening, etc., is done, all proceedings must be had upon notice and other procedure prescribed in the Drainage Daw for the original construction of drains. This means the procedure prescribed 'by sections 8454 to and' including section 8469, R. C, must be followed.

Repair work only may be done “upon the petition of any person setting forth the necessity thereof, and after due inspection by the board of county commissioners,” but without notice or hearing thereon. Section 8470, R. C. Whether the project be one for enlargement or one for repair, the law requires a proper petition .to be first filed with the board. What the board shall do in a given case is therefore controlled-by the petition presented. In re Sorenson Drainage Ditch, 27 S. D. 342, 131 N. W. 300.

In this case the complaint alleges and the demurrer admits that the old ditches were insufficient to accomplish the purpose for which they were constructed, or to properly drain the agricultural lands within the districts supposed to be drained thereby, and insufficient to drain other agricultural lands south of the old districts and between the southern boundary of the old districts and the mouth or outlet of said ditches; and that it was necessary, in order to drain the above-mentioned lands, to reconstruct, deepen, widen, and enlarge said old ditches. The board was authorized: to consider the advisability of granting this petition, and after hearing and due consideration it granted the prayer of the petition and established the enlarged project. The two old ditches had a 'bottom width of approximately 40 feet and cost a total of approximately $127,706, while the enlarged project resulted in a ditch of about go-feet bottom width, diked, with controlling gates, substantial spillway, and the river canalized:, at a cost of approximately $255,000. This is clearly an enlarged ditch, and the procedure therefore is identically the same as though it were an entirely new drainage project. R. C. § 8476. The action of the board in establishing this enlarged project was quasi judicial and appealable (In re Sorenson Drainage Ditch, 27 S. D. 342, 131 N. W. 300), .but no appeal was ever taken therefrom, and such determination is now final. The board, in establishing such enlarged ditch, was acting under its second power granted in section 8458, R. C.

We are not unmindful of the 'decision of the Supreme Court of the United States in the case of A. G. Risty et al v. Chicago, R. I. & P. Ry. Co., 270 U. S. 378, 46 S. Ct. 236, 70 L. ed. 641, which court had under consideration this same project, and although this court will give to such decision most respectful consideration, yet, in cases not arising upon the construction of the federal Constitution or laws of the federal government, this court has full jurisdiction and can adopt its own construction of the state statutes, even though such construction be at variance with the construction placed upon them by the Supreme Court of the United States. City of Sioux Falls v. Walser, 45 S. D. 417, 187 N. W. 821; Rothschild v. Stegar Piano Co., 256 Ill. 196, 99 N. E. 920, 42 L. R. A. (N. S.) 793 at 798, Ann. Cas. 1913E, 276; Bank v. Power Co., 117 Wis., 211, 94 N. W. 74; Wilkins v. Philips, 3 Ohio 49, 17 Am. Dec. 579; Scott v. Austin, 58 Cal. App. 643, 200 P. 251; Ingersoll v. Hahne, 88 N. J. Eq. 222, 101 A. 1030; Soehnlein v. Soehnlein, 146 Wis. 330, 131 N. W. 739; Wright v. Express Co., 230 Pa. 635, 79 A. 760; Lefebure v. Express Co., 160 Iowa 54, 139 N. W. 1117; Stajcar v. Dickinson, 185 Iowa 49, 169 N. W. 756; Guianios v. Mining Co., 242 Ill. 278, 89 N. E. 1003; Indianapolis v. Navin, 151 Ond. 139, 47 N. E. 525, 51 N. E. 80, 41 L. R. A. 337; Harmon v. Bolley, 187 Ind. 511, 120 N. E. 33, 2 A. L. R. 609; Pickle v. Bank, 88 Tenn. 380, 12 S. W. 919, 7 L. R. A. 93, 17 Am. St. Rep. 900; Towle v. Forney, 14 N. Y. 426.

That court recognized' the full meaning of section 8458, R. C., hut overlooked the connection between that section and section 8476 and gave improper interpretation to section 8467. This latter section does not apply to assessments for costs of maintenance of an old ditch.

.Under our Drainage Law, after a petition is filed accompanied by a bond, inspection had, and a survey, if deemed necessary, is procured, and the surveyor’s report filed, the board determines the exact line ánd width of the ditch, and fixes a time and place for hearing such petition, and gives notice thereof and for the fixing of any damages claimed as compensation for lands to be taken for such drainage; and, upon such hearing being had and the damages fixed or denied, the same is final unless an appeal therefrom, shall be taken. Failure to perfect such appeal amounts to a waiver of any such damages or compensation. Section 8462, R. C. Tire board is not authorized to start work or let contracts until after the damages or compensation has been paid. “After the establishment of the drainage and * * * fixing of the damages, * * * the board * * * shall fix the proportion of benefits of the proposed drainage among the lands affected, and * * * appoint a time and place for equalizing the same.” Section 8463, R. C. “After the equalization of the proportion or benefits the board may make an assessment against each tract and property affected, in proportion to the benefits as equalized, for the purpose of paying the damages and the cost of establishment [not construction] thus far incurred or to be incurred.” Section 8464, R. 'C. “Whenever sufficient money shall have been collected the damages occasioned by the construction of such drainage and fixed as herein provided shall be paid, and thereupon the board * * * shall proceed to construct such drainage and shall let contracts for the construction of the same.” Section 8463, R. C. Reading the foregoing statutes and interpreting them together, it is apparent that after the ditch is established, damages fixed, apportionments made, equalization had, the board must then make an assessment to pay such damage, and cannot proceed: to construct or let contracts for construction until such damages have been paid; for section 8465 says:

“Thereupon the board * * * shall proceed to construct such drainage and * * * let contracts for the construction of the same.”

After the damages have 'been paid, then further assessment must, of course, be made for the costs of construction. And it is provided in section 8467 for such further costs of construction. This section clearly applies only to raising money to pay for the physical construction after damages are paid, and furnishes the board authority to perform the work which completes the drainage project. This does not cover, nor does it furnish authority to the board- to make, assessments to pay for cost of maintenance or repair of a drainage ditch previously constructed. No time is fixed when this second assessment to pay for the physical construction of the ditch must be made. It may be at the time tíre contracts are entered in to, or it need not be made until the drainage project is completed, but when made it is upon the same apportionment and equalization upon which the assessment was made to pay damages. 'Section 8467 has application only to assessments for the cost of the physical construction of a new drainage or its equivalent, and has no reference to- maintenance. For these reasons, as well as others, the Supreme Court of the United States was in error as to the proper interpretation of the statutes under consideration.

Inasmuch as the procedure affecting this enlarged project must be had upon notice and other procedure prescribed for the construction of drains (section 8476, R. C.), the board had authority to cause a new topographical survey to be made, a new unit to be adopted, and a new apportionment made, and can include in the assessment district all land's or properties affected and benefited thereby, whether the same were included in the original assessment areas or not (Gilseth v. Risty, 46 S. D. 374, 193 N. W. 132.)

For its second cause of action plaintiff realleges all the facts set out in the first cause of action, including the fixing and giving of notice of the time and place for the hearing of objections to the tentative apportionment made by the board on drainage ditches Nos. 1 and 2, including the adjournment of the fooardj and claims that the 'board' will, at its next meeting, unless restrained by this court, spread the assessment upon said apportionment and will deny to plaintiff the right then and there to appear and contest said apportionment made against it and its property, or the amount of such assessment, or as to whether the lands of plaintiff are benefited or not, or the amount, if any, of such benefit, and deny to plaintiff the right to contest the validity of said tax or the legality thereof, because the plaintiff and others did not appear and file their written objections*at the time and place fixed by said board for filing the same, and that this will compel plaintiff to pay as its share of the cost of the repair of drainage ditch No.' x and drainage ditch No. 2 the sum of $4,489, while in truth and in fact the plaintiffs just proportion of the cost of such repair and maintenance should be figured on the apportionment originally made upon the old ditch and is in the sum of approximately $868; and that by reason thereof the plaintiff will suffer irreparable damage.

This presents for the court’s consideration three propositions ; namely: (1) Should the protest or obj ections to the tentative apportionment made by the board be written and filed with the board? (2) Has the board any right or authority to receive protests or objections after the day fixed by the board for the hearing, namely, August 1, 1921? (3) Does the board retain jurisdiction under the adjournments had to finally fix the apportionment and make the assessment under the notice given, dated June 10, 1921 ?

The notice dated' June 10, 1921, among others things required ■by statute, provided:

“All such owners and all persons interested are hereby summoned to show cause at the time and place as aforesaid why the apportionment of benefits shall not be fixed as stated and the said determination of said board made final.”

Drainage procedure is a creature of statute, and such steps as the statute sets forth must be strictly followed. On the other hand, the board has no power to go further or take any steps except such as are expressly authorized by statute or may reasonably be implied from the powers granted by statute. Curtis v. Pound, 32 S. D. 492, 143 N. W. 83. R. C., section 8463, provides that after the drain is established, the board. shall fix the proportion of benefits and “shall appoint a time and place for equalizing the same.” The matters to be considered before the board upon this hearing and by the circuit court upon appeal are one and the same. In re Drainage Ditch No. 12, 41 S. D. 157, 182 N. W. 770. R. C., section 8469, specifies what may be the issues to be determined both upon appeal by the court and by the board upon original hearing; namely: Is a tract taken as a unit benefited at all, and if so, how much? Is the protestant’s tract benefited, and if so, is its benefit equal to — or more or less than— the benefit to the unit? Therefore, -whether the land and property of plaintiff received any benefits and the extent o-f the same is clearly one of the issues to be heard and determined by the board. The -benefit to- the unit, if any, is another issue, and the relative benefit of the protestantant’s property to the unit is another issue. Whether the method pursued is wrong, or one by which a wrong result might be reached, is also an issue. Milne v. McKinnon, 32 S. D. 627, 144 N. W. 117. If acts were taken by the board subsequent to the establishment of the ditch by which the assessment would be increased or would result in an unwarranted- assessment, this, too, is a proper issue for trial before the board. Curtis v. Pound, 32 S. D. 492, 143 N. W. 778. From the foregoing it is apparent that the statute clearly contemplates the trial of certain issues to be raised by the protestants, and, in order to inform the board as to what these issues are, this can only be accomplished by the filing of a written objection or protest in order that the board may consider such issue. It is not contemplated that the board shall come prepared to meet every conceivable objection in these proceedings, any more than any other proceeding before a judicial tribunal. The statute clearly indicates that a written protest must be filed', because it requires the board to fix a time and place where protestants may “show cause” -why the tentative benefits shall not be made final. In the case of Drainage Ditch No. 12, 44 S. D. 161, 182 N. W. 770, this court passed upon this very issue, and held, in substance, that a property owner desiring to protest or object to the tentative apportionment made must file a written protest setting out any ground or reason why the tentative apportionment should be rejected.

The plaintiff, having neglected to avail itself, at the time and place specified in the notice, of its right to file a protest, cannot now be heard to complain. People v. Chapman, 127 Ill. 387, 19 N. E. 872; People v. Hulin, 237 Ill. 122, 86 N. E. 666; Commissioners v. Smith, 233 Ill. 417, 84 N. E. 376, 16 L. R. A. (N. S.) 292; People v. Le Tempt, 272 Ill. 586, 112 N. E. 335, 9 A. L. R. 835; Railway Co. v. Pierce Co., 51 Wash. 12, 97 P. 1099, 23 L. R. A. (N. S.) 286. See note, Waterbury v. Platt Bros. & Co., 60 L. R. A. 242; Page and Jones on Taxation, §§ 916-918, and cases cited.

The statute nowhere authorizes or permits the .hoard to enlarge or extend the time within which protests may be filed and issues tendered- on the tentative apportionment made by the board. It simply authorizes the board to fix a time and place for receiving such protests. As has been said above, the object of requiring these written objections to be filed is to limit the issues to be determined by the board. The statute, as a whole, is very explicit as to when each step in the proceedings must be taken and what must be done. By R. C., section 8464, the board is required to give notice showing the date when the assessment will become delinquent and the date from which interest will begin to run, and from the date of filing a certified: copy of the assessment in the treasurer’s office the amount of the assessment is due and payable and becomes a lien, and if not paid within 10 days thereafter, a penalty is added. R. C., section 8462, provides that failure to prosecute an appeal or appear and contest an award of damages is to be deemed conclusively a waiver of such damage. The notice given is sufficient to inform each and every person affected of his rights and of the time and! place when and where he may file such objections, and there is no implied authority permitting the board to change the place when and where protests may be filed. The whole statute is explicit, and, unless the protestant files his written objection at the time and place indicated in the notice, he has waived such right. Gorman v. Koester, 157 Ind. 205, 60 N. E. 1083; St. Louis v. Lang, 131 Mo. 412, 33 S. W. 54; Hays v. Tippy, 91 Ind. 102.

By section 8463, R. C., it is made the duty of the board to fix the proportion of benefits among the lands and property affected, and its 'duty to appoint a time and place for equalizing the same, and provides that, upon the hearing of the equalization of the proportion of benefits, the board shall equalize and finally fix the same according to the benefits received. This does not specifically provide that all contests or objections to the tentative apportionment made shall be heard and determind on the day specified and fixed by the board. The time and. place specified and fixed by the board is the time and place when and where protestants may file their written objections. Having imposed the duty upon the board to make this equalization, there is an implied authority for the board to continue such hearings from day to day until the mandate of the statute; namely, ‘finally equalize and fix the same according to the benefits received,” has been accomplished. In addition to this, R. C., section 5867, provides that the board “may adjourn from time to time.”

A meeting of a duly constituted board pursuant to' a valid order of adjournment is the continuation of the regular session, and by such adjournment the board retains jurisdiction of the matters on hand; namely, to make the proportion of the .benefits tentatively fixed the final action of the board, spread the apportionment, and make the assessment. Kraus v. Lehman, 170 Ind. 408, 84 N. E. 769, 15 Ann. Cas. 849; Butterfield v. Treichler, 113 Iowa 328, 85 N. W. 19; Ehinger v. Graham, 190 Mich. 132, 155 N. W. 749; Commonwealth Co. v. Brown, 28 Kan. 83; Gilbert v. Cannon County, 14 Idaho 429, 94 P. 1027-1030. The failure of the plaintiff and others like situated to file its written protest at the time and place appointed; namely, August 1, 1921, constituted a waiver of its right .to object to the tentative apportionments made by the board. The board, however, adjourned 'its meeting for the purpose of entering its order making such apportionments final, and by such order of adjournment the board has retained jurisdiction to enter such order, and they now have the power and authority to enter such order, and the plaintiff and others who have waived their rights cannot now complain.

In support of its third cause of action plaintiff reiterates all the allegations contained in its first and second causes of action, and in addition thereto alleges that our Drainage Law, being R. C., sections 8458 to 8491, inclusive, is in conflict with section 2 of article 6 of the Constitution of this state, in that said law provides for the establishing of drainage districts without giving notice to or an opportunity to be heard by the property owner as to whether his property shall be included within the confines of such district, or will be benefited by the construction of such drainage and subject to assessment for the payment of the cost thereof; and that for these reasons its property is .being taken without due process of law, and that if the board is allowed to proceed with the threatened assessment plaintiff will 'be compelled to pay an assessment, amounting to $4,489, to its damage in that amount.

This presents for the consideration of the court two questions: (1) Whether the statute authorizing and directing the board- to take the several stqps directed by the statute to be taken before the notice of August 1, 1921, are in violation of the above constitutional provision; and (2) whether the notice and hearing to have been held August 1, 1921, were such as satisfied that constitutional provision.

The particular ground upon which the D'rainage Law is claimed to 'be unconstitutional is that the notice required' by section 8461, R. C., is not sufficient to notify the property owner that he will be called upon to contribute to the cost of the construction of the drainage ditch, or that his property will be subject to an assessment for that purpose. In other words, that it is not sufficent to constitute “due process.”

The first step in the establishing of a drainage project is the petition provided for by section 8459, R. C. This petition must “set forth the necessity for the drainage, a description of the proposed route by its initial and terminal points and its general course, * * * and a general statement of the territory likely to be affected thereby. * * * ” It does not seem to be questioned that this petition is sufficient to give the board jurisdiction to proceed with an investigation and cause a survey to be made. After the investigation and the filing of the surveyor’s report, the board shall fix a time and place for a hearing on the petition and give notice thereof. “Such notice shall describe the route of the proposed drainage and the tract of country likely to be affected thereby in general terms, the separate tracts of land through which the proposed drainage will pass and give the names of the owners thereof as appears from the records of the office of the register of deeds on the date of the filing of the petition. * * * Such notice shall summon all persons affected by the proposed drainage to appear at such hearing and show cause why the proposed drainage should not be established and constructed, and shall summon all persons deeming themselves damaged -by the proposed drainage or claiming compensation for the lands proposed to be taken for the drainage to present their -claims therefor at such hearing.” Section 8461, R. C. It is not claimed that this notice is not sufficient as to those through whose land' the ditch is to pass or who will be damaged by the construction of said ditch, but that it is not sufficient as to those through whose land the ditch does not pass or who will not be damaged by the construction of the ditch, 'but whose land will be assessed to pay for the construction of the ditch.

The hearing upon this notice is not for the purpose of determining the particular land that may be benefited by the construction of the ditch, nor the extent to which any tract of land may be benefited, but to determine whether the proposed drainage or any variation shall be “conducive to the public health, convenience, or welfare, or necessity or practical for draining agricultural lands.” If the 'board finds that such drainage will be conducive to the public health, convenience, or welfare, or necessary or practical for draining agricultural lands, the board may establish the-drainage accordingly and proceed to let contracts for the work. It then becomes necessary to determine the particular tracts of land that will be benefited by the drainage and the extent to which it -will be benfited. Section 8462, R. C., as amended! by chapter 194, Laws 1921, § 3. Up to this stage of the proceeding no person has been deprived of his property, nor has any lien been created against his property.

After the drainage has been established and the cost thereof ascertained, it becomes necessary to apportion such cost against the property benefited thereby. Such apportionment is made upon a hearing of the interested parties to be had upon notice of the time and' place where- such hearing to to be held. “Such notice shall state the description of each tract of land affected by the proposed drainage and the names of the owners thereof * * *, and the proportion of benefits 'fixed for each tract of property.” Section 8463, R. C., as amended by chapter 194. Laws 1921, § 4.

It is contended by defendants that this notice is sufficient to comply with the due-process clause of the state' and federal Constitutions. And with this contention we agree. At the hearing held pursuant to this notice, an interested party may appear and show any reason why his property should not be assessed that he could have shown at the hearing for 'determining whether the drainage should -be established. If his property will not be benefited by the establishment of the drainage this may' be shown at either hearing, and if shown at either hearing his property will not be assessed.

This precise question has been the subject of much litigation in other courts, and it seems to be the concensus of opinion that if the property owner is brought in and given an opportunity to be heard at any time before the apportionment finally becomes a lien .against his property his constitutional right has not been invaded.

Voigt v. City of Detroit, 184 U. S. 115, 22 S. Ct. 337, 46 L. ed. 459, is a review of a decision of the Supreme Court of Michigan. In that case the appellant' contended that':

“No provision is made for a notice to property owners of a time and place of hearing upon either the question of fixing a taxing district or the question of the amount of the award to be spread thereon.”

To this the court replied that:

“Such notices were not necessary to vindicate the statute from the charge of 'being unconstitutional, because ‘the statute provides for a hearing in relation to the proportion each piece of property shall bear to the whole cost of the improvement, and the proper notice of this hearing was given.’ ”

Such holding was upheld by the Supreme Court of the United States, and to the same effect are the following cases: Bemis v. Guirl Drainage Co., 182 Ind. 36, 105 N. E. 496; Erickson et al v. Cass County, 11 N. D. 494, 92 N. W. 841; Johnson v. Lewis, 115 Ind. 490, 18 N. E. 7; Ross v. Board, 128 Iowa 427, 104 N. W. 506, 1 L. R. A. (N. S.) 431; Roberts v. Smith, 115 Mich. 5, 72 N. W. 1901; Viogt v. Detroit, 123 Mich. 547, 82 N. W. 253. In the Risty Cases above referred to Judge Elliott considered this phase of our law and reviewed the cases involving this question in the federal courts and the courts of the other states, and reached the conclusion that our law is constitutional. It is our view that the law is constitutional, and that the notice and hearing set for the 1st day of August, 1921, was a compliance with the requirements of the Constitution.

Plaintiff for its fourth cause of action sets forth the proceedings as in its previous causes of action, and further alleges that, after the order of the commissioners establishing the Co veil Lake outlet and cut-off and the resolution of the commissioners abandoning the outlet to drainage ditches Nos. i and 2, certain persons owning lands and property in the two old districts and territory adjacent to the Big Sioux river, and south of the assessment area of said old districts, fraudulently and unlawfully conspired and agreed together, and, pursuant to such consipracy and in compliance therewith, fraudulently procured- and presented a new petition, which was the petition 'filed August 3, 1916, and above set out, petitioning the board to enlarge the old districts so that new and additional property could be taken into the same for new assessment purposes, in order that such new property might be made to assist in paying for the maintenance and! repair of said old ditches, which was all the board could lawfully do, and that this was done with the fraudulent design of procuring the board to establish and construct a pretended enlarged drainage district, with a new topographical survey, a new unit, a new apportionment, and an assessment upon not only the old assessment area, but upon lands not within the old assessment area; and that by reason of such fraud so perpetrated, the plaintiff has been apportioned and will be assessed a greater sum of money and will be compelled to pay a greater percentage of the total costs of the work done than it would if assessed upon the old apportionment already made and which it is claimed by plaintiff should be the basis of the assessment in this case:

This presents for this court’s consideration the question whether or not the filing of the petition asking for this enlarged project constituted fraud such as will warrant this court in this action in setting aside the proceedings had under such petition.

It is contended by counsel for plaintiff and .by counsel who appear amici curiae that the allegation of fraud is an allegation of fact that cannot be disposed of on demurrer. As a general rule this may be true, but this rule does not apply where the complaint, taken as a whole, refutes the allegations of fraud. In this case all of the a-cts and proceedings of the board of county commissioners, and of all others who took any part in the transactions connected with the establishment of the enlarged drainage district and the making of said improvements, the making of the tentative apportionment of benefits, and the assessment based thereon are all set out in detail in this complaint. It appears from the complaint that all these proceedings were carried on in the way pointed out by statute. There was no concealment and no misrepresentation. Nothing to indicate that all persons interested, including t’he plaintiff and the parties represented by counsel who appear as amici curiae, were not fully aware at all times of all that was being done. There is nothing in the complaint to indicate that they did not fully approve of all that was being done. No appeal was ever taken from any order of the board. N'o protest was ever filed', and no objection was ever made until the work had been completed.

Counsel who appear amici curiae have filed very able, carefully prepared briefs in support of the complaint. These we have examined as well as to read the cases cited. Space does not permit a review of these cases, but we find nothing in any of them that we think would warrant us in overruling the demurrer. As pointed out in the Gilseth Case, there may have been many irregularities in the proceedings of the board and the performance of the work, but plaintiff, having failed to appeal or to have taken other steps to halt the work, should be held to have waived objection and: the demurrer should be sustained.

SHERWOOD and BURCH, JJ., concur. CAM'FBElLL, P. J., dissents. GATES, J., not sitting.