The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1902-04-29
Case Brought to Test the
Constitutionality of the
Drainage Law
MATTER OF IMPORTANCE
Lawyers Say That the Law of 1901
Technically Takes Private
Land for Private
Purposes.

Gideon S. Ives, of St. Peter, as at
tcrney for John Utrick and others of Polk
county, yesterday appeared before the
state supreme court, and secured from
Chief Justice Start a writ of certiorari
returnable May %, to test the constitu-
tlonal1ty of the state drainage law. The
Rainy Lake ditch runs through the prom
erty of the applicants and they will attack
the constitutionality of the law on the
ground that it takes private land for pri-
Fate purposes. The point is of consider
able importance, and it has been dis
cussed pro and con by lawyers, and the
decision of the supreme court will be
awaited with great interest, as the drain
age work is Of considerable value to the
counties of the Red River valley.
Speaking Of the law of 1901. which re-
pealed the original drainage act, County
Attorney A. U. Maryland, of Albert Lea
says:
It is well settled principle in law that
P tL 7, property cannot be taken against
TIE VIII Oh the owner for private use.
Cannot COnfiscate Land.
Inc legislature has no power to enact
a law whereby one or more individuals
are enabled to take private property from
the owner against his will and convert it
TO their own private use. On lust com
Pensatlon, private property may be taken
Tor pubic use and may be so taken for
the construction of ditch or drain I'M
ger the police power of the state or IN
DER the right of eminent domain or I'M
der the taxing power of the state. but
the dltch or drain must be for public
purposes, for example, it must be condu-
cave to public health, convenience or well
Iare. Keeping these points in mind we
md in examining the drainage act of
1901 (chapter 258, General Laws Of Mime
sofa Of 1900 that it nowhere REQUIRES
that such ditch, drain or water course
shall be for public purposes in any man
ner Wha tSOeVer
The drainage law of 1887 (chapter 81.
General Laws of Minnesota of 1897 ex-
presely required that the county commits
Sloners must ind that the ditch or drain
would be conducive to public health con-
Venience or welfare, or OF public utility
before they had the power to order the
drain or ditch constructed
Requirement Is Changed.
This requirement has been entirely
dropped out of the drainage law Of 1901
and there are no requirements anyWhere
IN SAID act that the ditch or drain is to be
LOT puDllc purposes, and so far as that
act is concerned and under and pursuant
70 tnat act, any person by making and
ming his petition, accompanied with the
proper pond, can take his neighbor's
lands against his Will and use the same
TO drain his own lands, and furthermore
assess the lands of his neighbor for the
cost OF draining his own land notwith-
standing the fact that the public has no
interest IN and is not benefited by the
same 1t seems to me that said act vIO-
rates one Of the fundamental PRINCIPLES
OF our laws and is therefore unconstitu-
uonaL said law is of considerable inn
portance to the taXpa-nrc and the con-
ssutut1onahty thereof ought to be tested
any extensive work is undertaken pur-
Suant thereto.