Great Falls tribune. [volume] (Great Falls, Mont.) 1921-current, 1922-11-20

Test Case Shows Objections
Raised Would Not Be
Allowed.

Helena, Nov. 19,-(By The Associ-
ated Press).-Tbat the drainage dis
trict law drafted by a group Of Bill
lings men and passed by the last legis-
lature is constitutional and invulner-
able to attack in court has been at
tested by the supreme court of Mon
tana. ~
A recent decision by the court, in a
friendly test case brought by j. Nj.
Johnston questioning points of the new
statute which might be attacked, ruled
that none of the possible objections
raised against it could be sustained.
Johnston brought his suit against
the commissioners of the Valley Cen
The supreme court, in it's decision,
said:
That lands may be brought into a
drainage district and subjected to the
imposition of special assessments to
! defray the cost of constructing and
maintaining the drainage system upon
the theory that the use to which the
lands are subjected is a public use,
is not open to further discussion In
this state.
In subjecting privately owned lands
10 this public use the state acts in
virtue of its power of eminent domain.
So long as ample provision Is made
for notice to every Interested land
owner and an opportunity for him to
be heard before he may be affected
/ adversely, it can not be said that the
statute operates to deprive him of his
property without due process of law.
Compensation
The fact that this statute author
ICES the commissioners to 60 upon a
land owners property for the purpose
Of necessary investigation TO determine
/ the special benefits received or dam
ages suffered By it in advance Of an
award. does not render 1t obnoxious
to the provision 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 statute
denies to one originally in the district
the right of jury trial upon the ques-
ton of benefits received or damages
suffered by his land. and that it dis
eliminates in favor of the land owner
whose property is brought into the
district after it is organized. by TX
tending to him the right to have the
question of benefits or damages de
termined by a jury.
The proceeding by which a drain
district is created and managed is
purely statutory. 1t is not an ordinary
civil action, but a special proceeding
in which the right to a jury trial die
not exist at the time u constitution
was adopted. Hence the right of tria
by jury as a guarantee by the consti
tuition is not impaired. The genera
rule is: Trial by jury in eminent
J domain proceedings is not essential Il
due process Of law, and q state may
authorize any just and reasonable
hlethod of determining the amount Of
compensation for land taken for the
hubble use without violating the four
: teenth amendment or the similar pro.
visions of our state constitution
The statute does not deny 10 tht
land owners whose properties are in
Guided in the district originally thu
T.. equal protection of the law. The rul.
! that general laws shall operate uni
formly does not prohibit a reasonable
classification of subjects, The situa
ton of the land owners whose prop
critics are originally in tn edistrict il
so far different from that of the Lame
{ Wv i'S' iA't'b ~ ! "'N'N
in after the district is created AS L
furnish the basis for a reasonable
classification, hence the statute is no
open to this objection.
Legislative Powers
THE statute docs not attempt t
delegate a legislative power TO the III
dietary and hence does not impins'
upon the provisions Of section l., Ar
ticle IN of u constitution.
Appellant contends that the pro
vision of Section 1850 tof the drain
age law that ownership of land with
in the district shall not disqualify
person from acting as commission /
violation of that fundamental maxim
of our law that no man shall be judg'
of his own cause. and support for thi
contention is found in a decision ii
the case of the commissioners Of tniol
District No. [ against Smith, but tn
decision is contrary to the overwhelm