1. In Tide Water Co. v. Coster, 3 C. E. Greene (N. J.), 518; s. c., 90 Am. Dec. 634, the act in question created a corporation to assist in draining the tide-water marshes adjoining Newark Bay, and provided for an appointment by a justice of the supreme court of three commissioners, who were empowered to contract with the Tide Water Co. for the performance of the work; and the act provided also that the funds necessary to pay this contract price should be raised by said commissioners by assessing upon the "lands so reclaimed a just proportion of the contract price, and of the expense of said commission."

The act was held unconstitutional because it did not restrict the assessments to the value of the benefits conferred upon the land-owners. Beasley, C. J., in rendering the opinion of the court, says: "That the legislative authority is competent to effect the end provided for in this act, I can entertain no doubt. The purpose contemplated is to reclaim and bring into use a tract of land covering about one fourth of the county of Hudson and several thousand acres in the county of Union. ... It is difficult from the great expense to build roads across it. . . . To remove these evils and to make this vast region fit for habitation and use seems to me plainly within the legitimate province of legislalation; and to effect such ends I see no reason to doubt that both the prerogatives of taxation and of eminent domain may be resorted to.... I have no difficulty, therefore, in concluding that the legislature was fully authorized to adopt measures to accomplish the general design embraced in this act. . . . It is one of the legislative prerogatives to decide the important question whether an enterprise or scheme of improvement be of such public utility as to justify a resort for its furtherance to the exercise of the power of taxation or eminent domain. . . .

"But looking more closely into the structure and effect of this statute, there appears to be a defect which seems to be both radical and incurable, and which must prevent its judicial enforcement. The defect alluded to is this: no provision is made for the indemnification of the owner of the land subjected to the operation of this law in case the expense of the improvement shall exceed the benefits which shall be conferred. The act authorizes the entire expense of drainage to be imposed upon the lands,

whether such expense falls below or rises above the increase in value which may accrue to the land by reason of such drainage. In other words, the cost of the enterprise is to be imposed as a burden on the lands, even though a full equivalent in the way of improvement shall not be given the land-owner. Now, therefore, it seems to me obvious that if this scheme be carried into effect, in the event of an excess of expenses over benefits private property pro tanto will be taken for public use without compensation. Where lands are improved by legislative action on the ground of public utility, the cost of such improvement, it has frequently been held, may to a certain degree be imposed on the parties who, in consequence of owning lands in the vicinity of such improvement, receive a peculiar advantage."

The validity of an act authorizing commissioners to enter upon and appropriate lands of individuals for the purpose of draining a swamp came in question in a New York court. Hartwell v. Armstrong,. 19 Barb. (N. Y.) 166. The particular provisions are not given, but the objection was made that it was a violation of the constitutional inhibition against taking private property, because, first, it is not taken for a public use; and, second, because no just compensation is provided for the parties whose property is taken. The first objection the court refused to sustain, but the second was held to be well taken, and on that ground the act was declared void. In the opinion by Bacon, J., it is said: "In the case of draining an extensive swamp, we can readily conceive that the public health may be favorably affected throughout a wide region within and bordering upon the district where the work is carried on; and it surely is for the public benefit that a large tract of land should be reclaimed from the condition of a useless morass and added to the agricultural resources of the State. . . . I shall find no difficulty in maintaining it as the lawful exercise of the right of eminent domain, and holding that the taking of the lands of these plaintiffs, so far as it was necessary to enter upon and appropriate them for the purpose intended in this case, was and is a lawful taking of the same for public use.

"By the third section it is made the duty of the commissioners to assess the costs and expenses of the survey and the cutting

of the ditches, and to apportion the amount among the several owners of the lands to be drained, according to the number of acres respectively owned by each. This provision, it will be seen, devolves the whole expenses upon the parties owning the land to be drained, and that not in the ratio of relative benefits, but simply upon a property basis, and by an equal assessment upon every acre throughout the swamp. The rule is highly objectionable in respect to the mode of providing for the expenses, but is probably within the scope of the legislative discretion, as one form of the exercise of the taxing power.... "The effect of the provision is to make the damages or compensation to be collected and payable precisely as the expenses are, to wit, by assessing the same upon the owners of the land according to the number of acres owned by each. . . . By the operation of this section the owner not only loses his land, but is compelled to pay a portion of the very damages he has sus tained by such loss, and the other consequential injuries he may have suffered thereby. It is incredible that every owner of land in the swamp will suffer equal injury and receive equal benefit from the work in question. This clearly is no just compensation, but a most inequitable distribution of the burthens, which ought to be in some proximate proportion to the benefit."

In Cypress Pond Draining Co. v. Hooper et al., 2 Metc. (Ky.) 350, the act in question created the corporation, and authorized it to drain and keep drained the lands within certain described boundaries, at the costs of the owners of the lands within such boundary, and to collect a tax on each acre, not exceeding twenty-five cents per acre, for ten years. The corporate boundary contains 14,621 acres owned by 68 persons; 34 of these, owning 5975 acres, had no agency in the passage of the act and no notice of the application therefor, gave no assent to its provisions, and a very small portion of whose lands, if any, will be benefited or improved in value by the proposed draining; and they file a petition in equity, in which they sought to enjoin the company from enforcing the

whatever may have been the object of those who procured its passage, is to appropriate the property of the appellees without their consent to the use of other private individuals merely; that a burthen has been imposed upon the appellees without any view to their interest in the objects to be accomplished by it; that it was a case of palpable and flagrant inequality in the burthen as imposed upon the persons and property included within the corporate boundary, and that the appellees are subjected to a local burthen for the private benefit of others, and for purposes in which they have no appreciable interest, and to which they are therefore not justly bound to contribute."

In a recent case in Iowa, Fleming v. Hall, 35 N. W. Rep. 673, the supreme court of that State refused to sustain an act which provided that "whenever any person shall desire to construct any tile or other underground drain through the land of another, and he shall be unable to agree with the owner or owners of such land as to the same," certain "trustees may fix the point or points of entrance and exit or outlet of said . . . drain on said land, the general course and size and depth of the same, . . . what compensation, if any, shall be made therefor; . . . and said finding [by the trustees] shall be final, except as to the amount of damages, if any such shall be awarded."

While conceding the right of the legislature to provide generally for the drainage of lands, the court pronounced this particular act unconstitutional, on the ground that it authorized the taking of private property without due process of law-a taking of private property for a private purpose without the consent of the owner.

Particular stress was laid upon the fact that the act authorized the trustees to appropriate land for the right of way without any showing beyond the mere desire of a single individual. Seevers, J., in rendering the decision, says: "If lands are swamp, marsh, or wet, disease may be engendered; the public health may require that they should be drained if necessary, and such drain may be constructed through the lands of others. Such a statute has been in force in this State for several years. . . It may be further conceded, for the purpose of this case, that if the land is swamp, marsh, or wet, and the proper cultivation requires, it may be drained through the lands of others, provided compensation is made for the damages sustained. There are well-considered cases which hold that this may be constitutionally done when there are large tracts of such land; and

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possibly it is within the discretion of the legislature to determine the size or extent of the tracts that may be so drained, and that such determination is conclusive. It will be observed the statute in question does not contemplate lands which are swamp or wet, but that any person who may desire to do so may, by pursuing the statutory mode, be authorized to construct a drain through the land of another. He is not required to establish that what he desires is reasonable or proper, or that his lands are swamp or wet. . . . It is true the trustees are required to determine, it may be assumed, whether the drain shall be constructed; but it does not in terms so provide. Conceding this, however.... The statute, therefore, provides that the trustees have the power to finally determine that one person may lawfully enter on the land of another, and dig up the soil, lay a drain, and perpetually maintain it. It would seem, therefore, that the plaintiff has been deprived of a right to use his property as he deems best, and that a burden is cast upon him without a trial by jury, to which he is entitled by the constitution."

A dissenting opinion by Beck, J., maintains that the land is not taken; that the surface of the land may be disturbed in the construction, but when complete, the drain in no way interferes with the use of the land by the owner; and he further argues that if it is taken, it is taken for a public use.

A statute somewhat similar was upheld by the supreme court of Oregon, Seely v. Sebastian, 4 Or. 25. It provided that 'any person whose land is so situated that it requires draining, and when any person or persons owning lands adjacent thereto object to ditches being dug or cut on their land, may make application in writing to the county court of his county ... for the right of way, etc., and privilege to cut a ditch," etc. Replying to the objection that it provides for taking private property for private and not for public use, the court says: "We think there is nothing in this point. By public use is meant for the use of many, or where the public is interested."

A Nebraska act providing that " any number of persons not less than three, being owners of land wet or liable to be overflowed," may organize a company for the purpose of draining the same; and providing further for the appointment of three appraisers, who shall assess the benefits along the line of the drain, and authorizing the company to appropriate any land necessary for the right of way,-was held invalid, because it was said to authorize an entry upon lands and construction of

drains whenever the private interests of the corporation require it, and without reference to the public welfare Jenal z. Green Island Drain Co., 12 Neb. 163.

The supreme court of New JerseyKean v. Driggs Draining Co., 45 N. J. 91-pronounced a drainage act unconstitutional, on the ground, first, that it committed to a private corporation which the act created the right to elect whether it would drain lands without the consent of the land-owners and at their expense; second, that the enterprise was in the nature of a private venture for private emolument, and would not justify the exercise of the State's right of taxation or eminent domain; third, because the act does not restrict the aggregate of the assessments which are to be levied on the land-owners to the amount of benefit to be conferred by the proposed work. In the opinion it is said: The distinction is clearly drawn between meadow drainage for the exclusive benefit of the owners, to be done at their sole expense, and drainage undertaken by the public primarily as a matter of public concern, in which case the assessment upon land-owners must be limited to benefits imparted.

"The act which gives rise to this contention differs from the meadow act in the material respect, that there the work is promoted exclusively for the benefit of the land-owners, and cannot be undertaken except upon application of some of the landowners to be affected by it. Here an artificial person created by the act, having no interest in the scheme other than what it can make out of its execution, is vested with full power to initiate the proceedings without the consent of those most deeply concerned in it. It is an intervention by the State through the exercise of its power to tax, and its eminent domain, to be justified only by public necessity or convenience."

In Lee v. Ruggles, 62 Ill. 427, a drainage assessment was held to be illegal under the act of 1859, for the reason that a sufficient sum was required to be levied upon the lands to complete their drainage, not exceeding fifty, forty, and thirty cents per acre, in respective classes, without any regard to whether the lands were benefited to the extent of the tax or not.

In People v. Parks, 58 Cal. 624, an act to promote drainage was held to be imperfectly framed, and void. Also in Doane v. Weil, 58 Cal. 334.

Secs. 4282 and 4307 of the R. S. of 1881 (Indiana) was pronounced unconstitutional in Tyler, etc., v. State ex rel. Wilson, 83 Ind. 563; and Campbell v. Dwiggens, 83 Ind. 473.

The New Jersey Drainage Act of 1871 was so amended in 1874 as to authorize the commissioners before the completion of the work to assess the expenses for drainage on the lands benefited or intended to be benefited.

An objection was made by certain landowners to the assessments made upon their lands under this amendment, and from the testimony it was doubtful whether their lands would be appreciably benefited by the contemplated scheme for drainage. The court held that while the original act was a scheme for the public good, and the rights of eminent domain and taxation might be employed in the execution of its purpose, yet special assessments upon the lands of individuals for drainage under this supplement could be made only where the benefit is actually received or demonstrably certain; and where it is shown that the intended benefits are speculative and doubtful, the lands of objectors could not be assessed.

In Matter of Drainage along Pequest River, 39 N. J. L. (10 Vroom), 433, in the opinion by Scudder, J., it is said: "That the legislature has the power to enforce the improvement of such lands, not for the advantage of the owners only, but for sanitary ends, and for the public good, in adding to the area of tillable and productive soil, is well established. . . . That the legislature have the right to determine the public utility of such schemes, and in their execution to employ the right of eminent domain and of taxation, was expressly decided in Tide Water Co. v. Coster. The act of March 8th, 1871, was approved in its general principles in Matter of Drainage of Lands in Lower Chatham, 6 Vroom (N. J.), 497. . . . The radical defect of this section in my judgment is that land-owners may be assessed for intended benefits which will never be realized. The work may never be completed, or if completed may not benefit their lands. The result may be that they will be compelled to pay for the experiment of the projectors, and

for speculative or visionary benefits.. It has been settled that special assessments for improvements must not exceed the benefits conferred. And where there are no benefits there can be no special assessments. Mere speculative benefits are not, in reality, benefits... The consequence may be that these objectors will be compelled to pay for expenses incurred against their will where no benefits are received. The projectors of this drainage have no right to impose this burden on the land-owners. A contribution toward the expenses of draining these meadows can only be legally demanded where the benefit is actually received or demonstrably certain. . . . But as the assessment made under the second section of the supplement of 1874 may result in taking private property without compensation, it is void, and the assessments made against these objectors by its authority is set aside."

1. "The citations we have made clearly derive the authority from the power existing in the legislative department commonly called the police power. O'Reiley v. Kankakee Valley Draining Co., 32 Ind. 169; Donnelly v. Decker, 58 Wis. 461; s. c., 46 Am. Rep. 637.

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2. The power of the legislature to enact these drainage acts has been put by some courts on what is said to be the more economical management of property of persons whose lands adjoin, or which for some reason can be better managed and improved by some joint operation.. We do not wish to rest on such a proposition. It is better, we think, to place it on the right to take private property for public use, making due compensation therefor, and to declare that to take for the maintenance and promotion of the public health is a pub lic purpose. Matters of Ryers et al., 72 N. Y. 1; Hartwell v. Armstrong, 19 Barb. N. Y. 166.

3. Reeves v. Treasurer, 8 Ohio St. 333; French v. Kirkland, 1 Paige (N. Y.), 117.