The circle banner. [volume] (Circle, Mont.) 1914-1939, 1922-12-08

advance of an award, does not rem
der II obnoxious to the provisions of
the constitution which declares that
private property shall not be taken
! or damaged for public use without
Just compensation having been first
made to or paid into court for the
owner.
"Objection is made that the stat
ute denies to one originally in the
district the right of jury trial upon
the question of benefits received or
damages suffered by his land, and
that it discriminates in favor of the
land owner whose property is
brought into the district after it is
organized, by extending to him the
right to have the question of benefits
or damages determined by jury.
'The proceedings by which drain
district is created and managed is
purely statutory. 1t is not an ordin-
ary civil action but a special pro-
ceeding. in which the right to a jury
trial did not exist at the time our
constitution was adopted. Hence the
right of trial by jury as a guarantee
by the constitution is not impaired.
The general rule is: Trial by jury
in eminent domain proceedings is
not essential to due process of law,
and a state may authorize any just
and reasonable method of determin-
ing the amount of compensation for
land taken for the public use with
out violating the fourteenth amend
ment or the similar provisions of our
state constitution.
Equal Protection Given
''The statute does not deny to the
landowners whose properties are in
cluded in the district originally the
equal protection of the law. The
rule that general laws shall operate
uniformly does not prohibit reason
able classification of subjects. The
situation of the land owners whose
properties are originally in the dis
trict is so far different from that of
the land owners whose properties are
brought in after the district is Great
ed as to furnish the basis for rea-
sonable classification, hence the stat
ute is not open to this objection.
'eThe statute does not attempt to
delegate legislative power to the
judiciary and hence does not impinge
upon the provisions of section l., art
icle w of our constitution.
appellant contends that the pro-
vision of Section 1880 (of the drain
age law that ownership of land
within the district shall not disqual- |
ify a person from acting as commits
sioner' is violative of that fundamen-
tai maxim of our law that no man
oIo I, - I, l.
support for this contention is found
in decision in the case of the COM
of Union District No.
against Smith, but the decision is
contrary to the overwhelming weight
Of authority as disclosed by the notes +
to the same case.
"The reason for our conclusion
that the statute is not open to this
objection is made manifest by the
statute itself, which requires the as
of benefits and damages to
be reviewed by the court after notice
% all interested, and a hearing in ;
which the assessments may be alter i
3D. In other words. the commits [
,ioners act only in an advisory capa- /
,ity. Their decision is not final. The
general rule is: Drainage commits {
;ioners are not disqualified by the |
mere fact of their ownership of lands !
wing in the drainage district {
"The contention that the interested ,
and owners have the right to select g
he commissioners is without merit. t
n the absence of any constitutional {
restriction the legislature may des-
gnate the officers who shall con- G
truct the drains and supervise the t
work of the district, and may pro- G
-ide the method of their selection. '
Drain commissioners are not consti- :
utional officers but mere agents of f
he state. f
Finally it is contended that the f
statute authorizes the imposition of
axes not uniform upon the same G
lass of subjects and thereby violates f
lection IL, Article XII of our state i
Special assessments t
or the construction and maintenance
# drainage works, although imposed d
md collected in virtue of the taxing a
,ower, are not taxes within the mean g
ng of that term as employed in Art
Gle II; hence the requirement that y
axes must be uniform has no appli- a
alton here. h
1--WE are of the opinion that our t
tatute is not open to any of the OBJ /