FIFTH ANNUAL YEAR BOOK — PART VI. 501 



The hypotheses involved in these questions are so nearly identical that 

 they may, for practical purposes, be regarded as the same. Does, then, 

 the consent to the formation of the government include consent to bear or 

 share the expense of drainage for the public good? There are certain things 

 which all agree that he consents to, such as to share in the expense of the 

 government and the maintenance of highways and to aid in the common 

 defense against the public enemy and in the maintenance of order and 

 punishment of crime. But he has expressly provided in most instances that 

 his property shall not be taken from him for the private benefit of another, 

 or even for the benefit of the public, unless he is compensated therefor. And 

 the whole theory of the government is based upon the principle that burdens 

 must be approximately equal and uniform. Applying these principles to 

 the solution of the problem the answer would seem to be that necessary 

 drainage is one of the things in the expense of which an individual consents 

 to share when he consents to the formation of the government; that his share 

 of the expense is to be determined, not by the benefit to himself merely, but 

 by ascertaining his share of the total cost when divided among all the prop- 

 erty benefited in proportion to benefits; that he can not be charged with any 

 burden for the benefit of others who do not bear their share of it; and that 

 in no case can he be required to drain for the benefit of other individuals. 



When passing the drainage law to which I shall confine my remarks this 

 evening, namely, Chapter 68 of the Laws of the Thirtieth General Assembly, 

 the legislature was at all times confronted with two sections of the State 

 Constitution, namely: Section 9, of Article 1, which provides that no person 

 shall be deprived of his property without due process of law, and section 18 

 of the same article which declares that ' 'private property shall not be taken 

 for public use without just compensation first being made or secured to be 

 made." By implication the section last named forbids the taking of private 

 property for private purpose, even though just compensation be made there, 

 for. The Supreme Court of Indiana, in the case of lillman vs. Kircher, 

 64 Ind , 104, aptly says: "The legislature cannot constitutionally enact any 

 law authorizing one person to improve the lands of another by draining and 

 compel the person benefited to pay to the other an assessment therefor 

 unless the public also is in some way benefited thereby, as that the drain is 

 necessary and conducive to the public health, conyenience or welfare or of 

 public benefit or utility, and then it can be done only by due course of law," 

 but in Wishmier vs. State, use of Dickey, 97 Ind.. 160, the court says that 

 "the legislature has the power to enact drainage laws providing for the 

 drainage of wet and overflowed lands at the expense of those whose lands 

 will be benefited thereby, if the public health will be improved, public 

 highways benefited or the work be of public utility." If therefore, I desire 

 to drain my land across yours, and in such drainage, there is nothing per- 

 taining to public use, health, convenience, utility or welfare, I can not com- 

 pel you to allow such drainage, even though I tender just compensation, 

 and a statute purpoiting to give me such right would be unconstitutional, 

 null and void. Again, in some stage of the proceeding, a party whose 

 lands are to be aflfected is entitled to be notified and heard agreeably to the 

 usages and methods of our institutions. If this right is not given, and the 

 statute makes no provision for notice and for opportunity to be heard, there 



