A. G. RISTY et al., as County Commis of a drainage ditch cannot be assessed upon sioners et al., Appts.,

V.

GREAT NORTHERN RAILWAY COM-
PANY. (No. 100.)

(See S. C. Reporter's ed. 378-390.)

Drains pair

assessment of benefits for re-
land outside district.

land outside the original district where the statutes clearly contemplate that assessments for additional construction and for maintenance are to be made upon those lands which are already embraced within the drainage project.

Courts

state law in Federal court. 2. Federal courts must, in suits brought in or removed to the district courts, decide 1. Benefits for maintenance and repair for themselves all relevant questions of Note. As to state decisions and laws | tenance and repair on land outside the as rules of decision in Federal courts-original drainage district were unauthorsee notes to Clark v. Graham, 5 L. ed. U. ized and void under the statutes of South S. 334; Elmendorf v. Taylor, 6 L. ed. Dakota. U. S. 290; Jackson ex dem. St. John v. Chew, 6 L. ed. U. S. 583; Mitchell v. Burlington, 18 L. ed. U. S. 351; United States ex rel. Butz v. Muscatine, 19 L. ed. U. S. 490; Forepaugh v. Delaware, L. & W. R. Co. 5 L.R.A. 508; and Snare & T. Co. v. Friedman, 40 L.R.A.(N.S.) 380.

As to when a court of equity will interfere to restrain proceedings at law see note to Davis v. Wakelee, 39 L. ed.

U. S. 578.

On loss of right to contest assessment in drainage proceeding by waiver, estoppel, or the like-see note to Geib v. Morrison County, 9 A.L.R. 842.

Generally, on the jurisdiction of equity where remedy at law exists-see notes to Delaware, L. & W. R. Co. v. Central Stock Yards & Transit Co. 6 L.R.A. 855; Meldrum v. Meldrum, 11 L.R.A. 65; and Tyler v. Savage, 36 L. ed. U. S.

83.

But in Kilty v. Michael, 190 Ind. 374, 130 N. E. 531, it was held that the authority conferred by statute to repair and extend an existing drain, after making the preliminary finding that the drain as originally constructed should be repaired, changed, or extended in the manner petitioned for, in order properly to accomplish the drainage for which it was designed and intended, included the power to bring in other lands, which, by the I construction of lateral ditches and tile

drains, had been made actually to drain
into the old ditch, and therefore would
be affected by the repair, change, or re-
construction of the latter, and such lands
could be assessed for the repairs, changes,
and extensions ordered by the court, al-
though they were not originally assessed
for the construction of the drain.
also to the same effect, Roundenbush v.
Mitchell, 154 Ind. 616, 57 N. E. 510.
The court points out that the cases of Ro-

See

As to amount necessary to give Unit-mack v. Hobbs, 13 Ind. App. 138, 41 N. ed States Supreme Court jurisdictionsee note to Schunk v. Moline, M. & S.

Co. 37 L. ed. U. S. 256.

Assessments for maintenance, repair, or additional construction of drainage ditch against lands outside of original district.

The reported case (RISTY v. CHICAGO, R. I. & P. R. Co.) holds that, inasmuch as the South Dakota statute made no provision for assessing the cost of reconstruction or maintenance of an existing drainage project upon lands not embraced within or assessed in connection with the drainage district as originally established, but such statutes clearly contemplated that assessments for additional construction and for maintenance were to be made upon those lands which were originally embraced within the drainage project, proceedings had by the board of county commissioners to apportion and assess benefits for main

E. 391, and Parke County Coal Co. v. Campbell, 140 Ind. 28, 39 N. E. 149, 558, were inapplicable, as those cases were decided under the Act of 1885, and said act contained no provision for allotments upon lands other than those originally assessed for the construction of the drain.

In Malin v. Benthien, 114 Wash. 533, 196 Pac. 7, a statute providing for the assessment of all lands benefited by a diking system, whether within or without the district as originally established, and requiring such lands to pay their pro rata for the maintenance of the diking system thereafter, without limitation as to time, upon the petition of the commissioners of the original district, was held to be violative of § 19, art. 1, of the state Constitution, providing that all elections should be free and equal, and also because it denied the principle of self-government. The court said: "These contentions are based upon the fact that while the statute does grant the landowners of the extended area a right to appear and

state law, although they will follow the
decisions of state courts as to the inter-
pretation of the state statutes.
Appeal jurisdiction of Supreme Court
of United States.

3. Contentions that state statutes and
proceedings under them resulting in the
assessment for the repair of a drainage
ditch of lands outside the district deprive
the owner of the lands of due process of
the law and equal protection of the laws in
contravention of the Constitution of the
United States present questions of sub-
stance, giving the Supreme Court of the
United States jurisdiction to pass upon the
whole case.
Injunction against assessment of
benefits for drainage when suit
premature.

jurisdiction of Federal court amount involved.

8. The amount necessary to give a Federal court jurisdiction of a suit to enjoin assessment of benefits for repair of a drainage ditch exists where the ground of attack is absence of jurisdiction to make the assessment, and the amount of outstanding warrants is approximately $300,000, while the assessments against the property of complainants range from $6,000 to $50,000. Estoppel to contest drainage assesseffect of permitting work to

ments
progress.

4. A bill to enjoin the apportionment of benefits and assessment of costs for the repair of a drainage ditch is not premature where the project has been completed, con- 9. Nonaction by persons owning lands struction warrants issued, and benefits ap-outside a drainage district while proceedportioned to complainant's lands tentatively ings to repair the ditch are in progress fixed so that the next step would have been does not estop them from contesting an asan assessment which would establish a lien sessment against their property where they on the land, while the ground of attack could have had no notice of the proposal to is the invalidity of the whole proceeding assess their lands until publication of noand the effect of the assessment would be tice of the apportionment of benefits. to bring outside lands into the drainage Courts jurisdiction district and subject them to future assessments for maintenance. Injunction

ists.

jurisdiction

when ex

Constitution

violation of suit by municipality. 10. The power of the state and its agencies over a municipal corporation within its territory is not restrained by the provisions of the 14th Amendment to the Federal Constitution, and therefore a Federal court has no jurisdiction of a suit by such corporation to enjoin proceedings under a state statute, which are alleged to violate such Amendment.

5. Equity has jurisdiction of a suit to enjoin the assessment of benefits for repair of a drainage ditch which would create a cloud on title and subject the property to future assessments, unless there is a plain and adequate remedy at law. Equity jurisdiction when exists. 6. The test of equity jurisdiction of a Federal court is the inadequacy of the Argued and submitted January 7 and 8, remedy on the law side of that court, and

1926. Decided March 1, 1926. officers, dictate its policy, and determine what money shall be spent, and how, in the maintenance of the system, so long as time shall last, or the dikes may be kept effective, while those without the district proper, and subject to its taxing power, having no voice whatever in the selection of its officers or determining its policy, shall be called upon to pay their pro rata of the maintenance year after year without any limitation of time? To uphold such a course would be a denial of the principle upon which our government is founded, and which as a nation we have always maintained is the only true principle upon which a free government can be founded and maintained."

defend in court against the assessment | upon their lands, it affords them no other right, and gives them no voice in the election of the commissioners of the district, and no means of being heard in the conduct of its affairs. The voters owning the lands within the limits of the district proper, as constituted before the extended area is found to be benefited, remain the sole governing power and the only electorate, and retain in their hands, as before, the entire power and authority to conduct all the affairs of the district without regard to the rights or wishes of the owners of land in the extended area, and may, by the means thus granted to them, say what the annual cost of maintenance shall be, leaving the inartic- State ex rel. Conner v. Superior Ct. ulate owners in the extended area to si- 81 Wash. 480, 143 Pac. 112, in which the lently pay what they will. . . What above act was held constitutional, was fairness or equality can there be in per-overruled by the court in the case set out mitting the electors of the district prop- above, in so far as it announced a coner to have the sole power to elect its trary doctrine.

APPEALS by defendants from decrees | 375, 215 Fed. 67; Singer Sewing Mach.

See same case below, 297 Fed. 710. The facts are stated in the opinion. Messrs. Benjamin I. Salinger, N. B. Bartlett, and E. O. Jones argued the cause and filed a brief for appellants: The amount in dispute must be shown affirmatively.

of the United States Circuit Court Co. v. Benedict, 229 U. S. 481, 57 L. ed. of Appeals for the Eighth Circuit af- 1288, 33 Sup. Ct. Rep. 941; Pittsburgh, firming decrees of the District Court for C. C. & St. L. R. Co. v. Board of Public the District of South Dakota enjoining Work, 172 U. S. 32, 43 L. ed. 354, 19 the apportionment of benefits and as- Sup. Ct. Rep. 90; Shelton v. Platt, 139 sessment of costs for repair of a drain- U. S. 591, 35 L. ed. 273, 11 Sup. Ct. Rep. age ditch. Reversed in part. 646; Stanley v. Albany County, 121 U. S. 535, 30 L. ed. 1000, 7 Sup. Ct. Rep. 1234; Milheim v. Moffat Tunnel Improv. Dist. 262 U. S. 710, 67 L. ed. 1194, 43 Co. v. Seattle, R. & S. R. Co. 107 C. C. Sup. Ct. Rep. 699; Seattle Electric R. 222 U. S. 522, 56 L. ed. 294, 32 Sap. Ct. A. 421, 185 Fed. 372; Soliah v. Heskin, Johnson v. Wilkins, 116 U. S. 392, 29 Rep. 103; First Nat. Bank v. Weld CounI. ed. 671, 6 Sup. Ct. Rep. 600; Wash-ty, 264 U. S. 450, 68 L. ed. 784, 44 Sup. ington & G. R. Co. v. District of Colum-260 U. S. 519, 67 L. ed. 375, 43 Sup. Ct. Ct. Rep. 386; Southern R. Co. v. Watts, bia, 146 U. S. 227, 36 L. ed. 951, 13 Sup. Rep. 195; Union P. R. Co. v. Weld CounCt. Rep. 64; Green v. Fisk, 154 U. S. 668, 26 L. ed. 486, 14 Sup. Ct. Rep. 1193; ty, 133 C. C. A. 392, 217 Fed. 541; CaleCitizens' Bank v. Cannon, 164 U. S. 319, N. W. 928. donia Twp. v. Rose, 94 Mich. 216, 53 41 L. ed. 451, 17 Sup. Ct. Rep. 89; Milheim v. Moffat Tunnel Improv. Dist. 262 It does not work an inequality which U. S. 710, 67 L. ed. 1191, 43 Sup. Ct. is protected by the Constitution of the Rep. 699; Ross v. Prentiss, 3 How. 771, United States that the administrative 11 L. ed. 824; New England Mortg. Se-boards have not arrived at an assessment cur. Co. v. Gay, 145 U. S. 123, 36 L. ed. of benefits which is exactly equal to the 646, 12 Sup. Ct. Rep. 816.

These suits were prematurely brought. Ross v. Prentiss, 3 How. 771, 11 L. ed. 824; New England Mortg. Secur. Co. v. Gay, supra; Western U. Teleg. Co. v. Howe, 103 C. C. A. 398, 180 Fed. 53. It does not violate the equal rights clause that there was gross overvalua

tion.

benefit received.

Southern R. Co. v. Watts, 260 U. S. 519, 67 L. ed. 375, 43 Sup. Ct. Rep. 197; Stanley v. Albany County, 121 U. S. 535, 30 L. ed. 1000, 7 Sup. Ct. Rep. 1239; Martin v. District of Columbia, 205 U. S. 135, 51 L. ed. 743, 27 Sup. Ct. Rep. 441; Branson v. Bush, 251 U. S. 182, 64 L. ed. 215, 40 Sup. Ct. Rep. 116; Baker Baker v. Druesedow, 263 U. S. 137, 68 v. Druesedow, 263 U. S. 137, 68 L. ed. L. ed. 212, 44 Sup. Ct. Rep. 40; Martin 212, 44 Sup. Ct. Rep. 41; Thomas v. v. District of Columbia, 205 U. S. 135, Kansas City Southern R. Co. (C. C. A. 51 L. ed. 743, 27 Sup. Ct. Rep. 440; 8th) 277 Fed. 708; Kansas City SouthDodge v. Brady, 240 U. S. 122, 60 L. ed. ern R. Co. v. Road Improv. Dist. 256 U. 560, 36 Sup. Ct. Rep. 277; Long v. Nor- S. 658, 65 L. ed. 1151, 41 Sup. Ct. Rep. man (C. C. A. 1st) 289 Fed. 5; Stone-604; Gast Realty & Invest. Co. v. Schneibraker v. Hunter, 131 C. C. A. 375, 215 der Granite Co. 240 U. S. 155, 60 L. ed. Fed. 67; Singer Sewing Mach. Co. v. 523, 36 Sup. Ct. Rep. 255. Benedict, 229 U. S. 481, 57 L. ed. 1288, 33 Sup. Ct. Rep. 941; Pittsburgh, C. C. & St. L. R. Co. v. Board of Public Works, 172 U. S. 32, 43 L. ed. 354, 19 Sup. Ct. Rep. 90; Shelton v. Platt, 139 U. S. 591, 35 L. ed. 273, 11 Sup. Ct. Rep. 646; Stanley v. Albany County, 121 U. S. 535, 30 L. ed. 1000, 7 Sup. Ct. Rep. 1234; Gilseth v. Risty, 46 S. D. 374, 193 N. W. 132; Hinds v. Belvidere Twp. 107 Mich. 664, 65 N. W. 545.

No substantial Federal question was presented.

Dodge v. Brady, 240 U. S. 122, 60 L. ed. 560, 36 Sup. Ct. Rep. 277; Long v. Norman (C. C. A. 1st) 289 Fed. 5; Stonebraker v. Hunter, 131 C. C. A.

To avail of a fraud in any event, even if resort had first been had to the administrative tribunals provided, it must appear that there was an undervaluation which was intentional and systematic; and unless that is shown an equal assessment will not be held to violate the equality clause.

Southern R. Co. v. Watts, supra.

The courts cannot relieve against honest mistakes of judgment in the administrative boards.

Maish v. Arizona, 164 U. S. 599, 41 L. ed. 567, 17 Sup. Ct. Rep. 193; Baker v. Druesedow, 263 U. S. 137, 68 L. ed. 212, 44 Sup. Ct. Rep. 41; Pittsburgh, C. C. & St. L. R. Co. v. Backus, 154 U. S.

421, 38 L. ed. 1031, 14 Sup. Ct. Rep. | R. Co. v. Yakima County, 107 Wash. 1120; Southern R. Co. v. Watts, supra. Appellees are estopped by action and nonaction to assert any invalidity.

The attempted assessment upon the property of appellee was arbitrary, just, and illegal, and constitutes a discrimination so palpable and arbitrary as to amount to a denial of the equal protection of the law.

Kansas City Southern R. Co. v. Road Improv. Dist. 256 U. S. 658, 65 L. ed. 1151, 41 Sup. Ct. Rep. 604.

Mr. E. L. Grantham also submitted the cause for appellee in No. 96.

Mr. C. O. Bailey argued the cause, and, with Messrs. J. H. Voorhees, T. M. Bailey, and R. L. Kennedy, filed a brief for appellee in No. 97.

Messrs. R. M. Campbell and Harold E. Mr. C. O. Bailey argued the cause, and, Judge submitted the cause for appelles