502 IOWA DEPARTMENT OF AGRICULTURE. 



is no due process of law. The statute that is vulnerable to either of the 

 objections I have mentioned is unconstitutional and utterly void. The fol- 

 lowing illustrations will serve to make plain what I mean: 



Chapter 188 of the Laws of the Twentieth General Assembly provided 

 that when one desired to put a tile drain through the land of another, he 

 could make application to the township trustees and, by taking certain steps' 

 have the same put through. This statute was held unconstitutional because 

 it authorized the construction of^a drain over the land of another in cases 

 where the public might be in no manner affected. By amendment it was 

 afterwards limited in its application to cases where the public was affected. 

 This act of the legislature as originally passed was obnoxious to section 18 of 

 Article 1 of the Constitution and was, therefore, void. Recently our Supreme 

 Court held that section 1946 of the Code, before the same was amended by 

 the Thirtieth General Assembly, was void because it provided for assessment 

 of benefits upon lands not abutting upon the drain without providing that 

 the owners thereof should be served with notice of such intended assessment. 

 The statute was void because it was obnoxious to section 9 of Article 1 of 

 the Constitution. It deprived the individual of his property without due pro- 

 cess of law. Unconstitutionality, in the sense last named, can be readily 

 avoided in a carefully drawn act, because the difficulty pertains simply to 

 the method of procedure. Unconstitutionality, in the sense first named, is 

 not so readily avoided, because the difficulty lies deeper and inheres, not 

 merely in the method of procedure, but in the subject-matter of drainage 

 itself. As I proceed in the discussion of the new drainage law, I shall from 

 time to time notice the pretended unconstitutional features of the law. 



Section 1 of the new law gives authority to the board of supervisors to 

 establish drainage districts when the same will be of public utility or con- 

 ducive to public health, convenience or welfare. Section 18 of Article 1 of 

 the Constitution uses only the words "public use." By some authorities it 

 has been held ' ' public use " implies a possession and occupation and enjoy- 

 ment of the land by the public at large or by public agencies. A public 

 park or public highway is fairly illustrative of this conception of ' ' public 

 use." Under this narrow conception of the term ' ' public use " it is hard 

 to conceive how a drain through a drainage district could be said to sub- 

 serve a public use. Giving to the words "public use " this limited sense, it 

 would also be hard to see how the terms used in the statute, namely, " con- 

 ducive to public health, convenience or welfare," could be said to come 

 within the scope of the words "public use" as employed in the 

 Constitution. 



Public benefit or utility, however, has been held sufficient in a number of 

 cases, to authorize an exercise of the power of eminent domain. Indeed, 

 many of the decisions on this subject can not be sustained on any other 

 hypothesis. Public use and public benefit or utility were held to be 

 synonymous in Aldrige vs. Tuscumbia R. R. Co. , 2d Stuart & P. , 199. Same 

 case, 23 Am. Dec. , 307; also in Salt Co. vs. Brown, 7 W. Va. , 191; so in 

 Dayton Mining Co. vs. Seawell, 11 Nev. , 394, it was said that public use 

 meant public utility, benefit and advantage; so in Todd vs. Austin, 34 Conn., 

 78; Bradley vs. New York R. R. Co., 21 Ind., 294; Great Falls Manufactur- 

 ing Co. vs. Fernald, 47 N. H. , 456; Hand Gold Mining Co. vs. Parker, 59 



