504 IOWA DEPARTMENT OF AGRICULTURE. 



which the property is proposed to be devoted is of a public or private character, 

 it is a matter to be determined by the legislature, and the courts will not under- 

 take to disturb its judgment in this regard. From the authorities just cited, it 

 follows that all doubts, as to whether or not the establishing of a drainage 

 district would partake of the public nature required by the Constitution, are, 

 under the law, to be solved in favor of the petitioners for the district. 



Passing now to the following sections of the act, it is apparent that there 

 are three primary questions to be considered. First, the establishcnent of 

 the drainage district; second, the assessment of damages; and third, the 

 assessments for benefits. Each of these questions involves the necessity of 

 giving to the parties interested, opportunity to be heard and opportunity to 

 appeal. Under the Constitution only one of these necessarily requires a 

 trial by jury, namely, the appeal from the order assessing damages for the 

 taking of the property. The act in question provides that the appeal from 

 the order with respect to the establishment of the district shall be tried in 

 equity, and in order to expedite matters, it is made triable at the first term 

 after the appeal is taken. The appeals from the orders assessing damages 

 and benefits are to be triable by a jury. As, under the Constitution, the 

 appeal from the order assessing damages must be tried by a jury, it was 

 thought proper by the legislature that the party appealing from the assess- 

 ment of benefits should likewise be allowed a jury; and, here it may be well 

 to say that, after the drainage district has once been established and the 

 appeals therefrom, if any, have been determined, all constitutional ques- 

 tions arising under section 18 of Article 1 of the Constitution are at an end. 

 The matter then is, as we lawyers say , adjudicated. The " public use " is 

 settled by tte establishment of the district. Thereafter, it is only the con- 

 stitutional questions involvina; ' ' due process of law," that can arise. Sec- 

 tion 2 of the act provides that one or more persons whose lands would be 

 aflfected can petition for the establishment of the drainage district. In the 

 drafting of this section, it was thought that if the act required the petition 

 to be signed by a majority of the property owners in the district in order to 

 initiate the proceedings, the enterprise would be unduly handicapped. If, 

 on the other hand, the petition could be filed by one who owned no prop- 

 erty to be affected by the drainage, outside speculators, who desired, per- 

 haps, to secure drainage contracts, would become too much interested. 



Section 3 of the act, it will be observed, provides for the giving of notice 

 of the meeting of the board of supervisors to all owners of land in the pro- 

 posed district, and, also, to those who hold incumbrances on the lands 

 through, or abutting upon, which the ditch, when constructed, would run. 

 This notice is primarily to enable all who own lands in the proposed district 

 to object to the establishment of the drainage district and to enable them to 

 appeal from the order establishing the district if the same should be estab- 

 lished at the first meeting of the board of supervisors as is provided may be 

 done when no claims for damages are, prior to such meeting, filed. It is 

 secondarily to enable those through whose lands the proposed drains will 

 run, and those having incumbrances against the same, to file claims for 

 damages if they so desire. If claims for damages are filed, then, the super- 

 visors, at their first meeting, proceed no further, except to determine the 

 necessity for the drainage district. They are required to determine the 

 necessity of the drainage district because it would be useless for them to 



