The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1893-01-08
JUDGE REED DECIDES.
lie Delivers Clear and Logical Opinion on
the Dean Ditch injunction Case.


sioners, enjoining them from proceeding
further with the Dean ditch in Waco
township. Judge Reed rendered his de-
lasion orally, hut fortunately it was taken
flown by Mr.. Mclaughlin, the court stem
oerapher, who, at thu request OF the
9bliging Judge, kindly transcribed the
notes for the EAGLE IG will be found in
serestiug reading matter for those who
4ave taken an interest in a subject that
aas been the source of so much contention
by large number of the citizens Of our
county, for il is the most correct statement
CT the facts ever published. The decision
ts as follows:
This is an action brought on the part IF
". Is. Jones against T. IL. Randall, ;. IL.
Hayden and J. II. Allen, as members OF
:he board OF county commissioners o.
Se6gwicb county, 10 restrain tIen rom
issuing threatened order osta .fa.aR
certain ditch or bitches and rssrraIn'uE
ihem from taxing the plaintiff with any
part of the costs that may lie incurred
therein.
The case as a whole seems to rest on the
construction of the law relating 10 the
establishment of bitches, and the assess
Tnents to be made under such proceed
ings.
The plaintiff. briefly. sets forth in his
that he is the owner of the land III contro-
yersv. towit: The southeast quarter OF sec
ton Z, township 26 range J, east; and that
the defendants are threatening to estao-
lish ditch ualawfully across said land
The county commissioners have n!ed
their answer, controyerriug this statement
of fact. The query i'll this case is: Have
the county commissioners proceeded III All
respects according TO law?
The act of the legislature relating to the
establishment of bitches will be found III
chapter 1G1, entitled ''Au act providing for
che draiDage Of swamps, bottoms and other
low lands" The act states in detail the
stems which the commissioners must
take in establishing "a ditch; how the
assessments are To be made upon the
individuals through whose land the
bitches are made; bow the benefits sccru-
ing TO the land by reason OF the ditch
are to be determined.
| take i5 that IT, will be unnecessary
to read this act in detail. 1t
Is sufficient TO call attention
10 the objections which have been
raised 10y counsel for the plaintiff. Coun-
sci FOR plaintiff claim first. that the act
heretofore referred to is unconstitutional,
because it fails to provide for jury trial;
and unconstitutional, secondly, because
the acJ on It's face makes no provision for
the excess Of costs over the benefits, and
therefore is in violation Of the COnstitu-
1Ional requirement. that no property can
be taken without due process of law.
Az to the first proposition that the act is
unconstitutional because it does not pro-
vide for a jury trial, the court has already
passed on that, and desires at this time
only 30 reiterate what has heretofore
been said, that the objection Is not tena-
able That the law on its face does not
provide for q jury trial must be conceded.
True enough IL provides for an appeal to
the probate Judge, and such appeal Is TO
re determined by SIX persons called jury.
But when the law Is examined critically
il can be seen clearly that the jury so
manned in the statute is not a jury con-
templated under the common law, nor
snch n jury as IS contemplated under the
constitution OF this state or any other
state Il CAD, therefore, safely be assumed
that the act in question does not provide
FOR n Jury trial: and if it should turn out
at any future time in the judgment of
higher court that the party in question
was entitled to a jury, then the act is
clearly unconstitutional, and the proceed
jngs taken by the board of county COM
missioners are null and void. But I take
It, that a jury could only be called for and
demanded in a case of this kind-proyided
the same was known to the common law,
aud the some not being known to the COM
mon law the plaintiff was not entitled to
u Jury trial.
AS I have Just stated, the statute pro-
vides for aD appeal, and / have also said it
was not ap appeal TO be heard by jury at
contemplated oy the common law, and the
fact that II gives the right of appeal from
the commissioners is neither there nor
there" In determining its cOnstitutionaligy
for the reason that it does not provide for
a common law jury. The question of APP
peal can simply be considered in determin-
ing whether or not the pSrty has an
stfa at n md Lof
proposition the court has heretofore an
uounced his conclusions and will not Ie-
tterate them.
The only question 10 be determined by a
Jury on appeal would be the three items
specified IN the statute: First, whether
10 would be conducive to public health.
convenience or welfare to establish such
ditch or bitches; second, the amount Of
compensation due TO each person: third,
the amount al labor TO be performed by
such person in opening and constructing
the same.
Ii Will therefore be observed that the
statute does not provide or attempt to pro
vide for aoy misconduct or fraud on the
part Of the board of county commissioners,
and for that reason al appeal IS not broad
enough 10 cover cases OF fraud and there
fore au Injunction would lie under the act
for fraud. and should be granted II there
are facts sufficient to warrant such a CON
proof of fraud that feature Of the case is
dismissed.
The second objection raised to the law in
question Is that the same Is unCoDStitu-
tonal, for the reason that It makes no
provision for the excess Of costs over the
benefits.
Upon the proposition TINT the legisla-
iure has no authority 10 enact law which
provides for the condemnation of property.
making 40 provision for compensation
where the costs exceed the beneti the
cOur.s seem 10 De as one. L he proposition
Of lav may be stated that in no case can
Tie ie- stature psss law which denies the
right o. a party g." payne I FOR land in
Uise Where thr costs exc q the benefits
In other words, all laws of this character
must be 80 MADE that the costs do not ex-
coed the benefits II the costs exceed tha
benefits then the law j. unconstitutional
Tor the reason thar IL would take private
property without due process of law
The real objection made by the plaintiff
IS that the acU on its face fails tomaka any
provision where the costs exceed the benz
hts and the query IS not IN this case
whether the cost exceeds the benefits (for
in fact H. does not). but whether the act of
the Legislature on It's face expressly makes
provision for indemnity 10 landowners
where the costs exceed the benefits
Upon that proposition the courts are
divided.
In a case tried in the supreme court in
the state of New jersey, entitled Tide
water Company against Coster.' the
court uses this language: NO provision
L. made Tor the decentralization
of the owner OF the land subjected To tbs
operation of this law in case the expense
Of the improvement shall exceed the hene-
1ils which shall be conferred The act
authorizes the entire expense Of DRAINAGE
so be imposed upon the lands, whether
such expense falls below or rises above the
Increase in value which may accrue to the
lands bY reason of such DRAINAGE L.