
    A MANDATORY IMPROVEMENT ACT RELATING TO DITCHES.
    [Circuit Court of Madison County.]
    Eugenia Crawford v. B. A. Taylor, Auditor, et al.
    Decided, March 25, 1905.
    
      Constitutional Law — One Section of the Ditch Cleaning Act — Mandatory, Administrative and Unconstitutional — Equity Powers — As Opposed to the Judgment of the Proper Authorities.
    
    1. The equity powers of a court should he slow to move, where the ■issue relates to the judgment exercised by the proper authorities with reference to the amount of work to be done and assessment toi be levied for the cleaning out and keeping in repair of a public idStch or drain.
    S. Section 3 of the act found in 95 O. L., at page 155, is a mandatory improvement law, which does not submit the question of the public necessity of the .proposed improvement to any authorized public board or officer, and is therefore unconstitutional, because administrative rather than legislative.
    Wilson, J.; Sullivan, J., and Dustin, J., concur.
    Heard on appeal.
   This is an action brought to enjoin the assessment made by the auditor under favor of Section 3 of the act found in 95 O. L., 155, for cleaning out what is known as the Pilfer county ditch, and comes into this court on appeal.

If the law under which it is sought to lay the assessment should be held constitutional, we would not grant the relief prayed for, upon the facts disclosed in the evidence. The extent of the improvement and the consequent amount of the assessment must, in the nature of things, be left largely to the judgment of the authorities who are upon the ground and act with better information than a court can obtain from cold type and oral evidence. The equity powers of the court should be slow to move under such circumstances.

But we have not been able to. reconcile our views of the law with the constitutionality of the statute under which it is sought to make the improvement. It is obvious, we think, that the provisions of Section 3 of the statute under review do not refer the question- of the necessity for cleaning out. to any officer or board of the county. It is said by counsel in argument that “the necessity” is implied as a -prerequisite to invoking the operation of the law; the language being “Provided, however, that when a ditch needs to be cleaned out,” etc. But this language is the same as that of Section 2 of the act wherein it is provided that the- commissioners shall determine the necessity before the improvement is -ordered, and nothing was left to be implied in that section.

Again it is argued the county surveyor is authorized- to determine the necessity, because he is ordered “to examine the ditch.” His duties are similarly expressed in Section 4 of the act when he is proceeding in pursuance to the provisions of Section 2 to carry out the order of the commissioners after they have determined the necessity. There is nothing in the language of Section 3 to inform him that his authority is different or greater than it is under the other sections, and he would look upon the necessity as predetermined and act accordingly.

Nor can it be inferred that the auditor has power to determine the necessity for the improvement under the authority to pass upon the surveyor’s report of the apportionment of the assessment and make such changes therein as he may deem right and proper.

The apportionment of the assessment and not the necessity for the improvement is the matter he considers. Here again it is assumed that “the necessity” is predetermined. The authority to make changes and approve does not imply the power to annul the assessment. When an -officer’s power is purely statutory the courts will be slow to raise it by implication.

It would be a forced construction to say that the power to determine the necessity is to be inferred from the language i-n Section 3 when it is clearly expressed as otherwise bestowed in the sections- immediately precedent and following in the same act.

In our opinion the necessity for cleaning out is determined-by the Legislature to be whenever any resident land -owner of any tract of land which, was assessed for the construction may make a sworn statement to the county auditor in writing setting forth the necessity. It is a mandatory improvement act which does not submit the question of the public necessity to any authorized public board or officer. Such an act is administrative, not legislative, in its character, and unconstitutional because not within the province of the Legislature. It is apparent also that the remedy provided in Section 3 is materially different from that provided to the same end in Sections 2 and 4 of the act. Under the last named sections the applicant for relief is required to give bond to secure the costs and to have the board of county commissioners find the improvement necessary. In the event the board does not so find, he is adjudged to pay the costs. No such requirements are made of the applicant under Section 3. The distinction is not made to depend upon residence as a reason for classification. A resident land owner may apply under either Section. A non-resident, may not apply under Section 3, but whether the resident land owner applies under the one or the other must depend largely upon his scrupulosity. If he is willing to make oath that it is necessary and invoke the power to assess his neighbors upon his own information and judgment, he may have the ditch cleaned out under Section 3. If he. has scruples about maldng the sworn statement and desires to have the county commissioners investigate and pass upon the question affecting himself and others he must make application under Section 2 •and as a penalty for his modesty-secure the costs. This would appear to be unequal legislation, an unjust discrimination against the fair-minded citizen and violative of the Bill of Rights.

Murray, for plaintiff.

T. J. Duncan, for defendant.

So much of the statute as is included in Section 3 of the act is held to be unconstitutional and void, and the proceeding to levy an assessment under its provisions will be enjoined. A decree may be entered accordingly, the plaintiff to recover her costs.  