#### E. W. SANDERLIN v. A. B. LUKEN et al., Board of Drainage Commissioners.

(Filed 30 May, 1910.)

1. Water and Watercourses — Drainage Commissioners — General Scheme — Public Interest — Legislature—Delegation of Power— Constitutional Law.

Chapter 442, Laws 1909, authorizing the establishment of certain levee or drainage districts, is to present a scheme for the *739drainage of lowlands in which the public of the locality are .generally interested, at once comprehensive, adequate and efficient, in which the rights of all persons to be affected have been fully considered and protected, and is not objectionable on the ground that it is for the benefit of private landowners and not for public purposes, and an unconstitutional delegation of legislative powers.

2. Same — Assessment—Reciprocal Advantages — Taxation — Vote of People.

While drainage districts created by legislative act are regarded as public Q"w.(m-corporations, partaking to some extent of the character of a governmental agency, the restrictive provisions, established by the Constitution upon municipal corporations in reference 'to the imposition of taxes both' as to the amount and method, do not apply to the case of local assessments made and collected by a recognized method of apportioning the burdens according to the benefits received by the property affected, as, in this case, from the drainage of the lands in accordance with the provisions of chapter 442, Laws 1909, and no vote of the people on the proposition is required. Constitution, Art. VII, sec. 7.

3. Legislature — Delegation of Authority — Judicial Powers — Clerk of Court — Constitutional Law.

The authority and powers conferred by chapter 442, Laws 1909, upon the clerk of the court is not a delegation of legislative power and duty to the judicial department of the State prohibited by the Constitution, the powers and duties conferred being of a judicial nature in relation to the prescribed' proceedings to be instituted.

4. Drainage Commissioner — “Lowest Responsible Bidder” — Discretionary Powers — Power of Courts.

Chapter 442, Laws of 1909, directs that the levee or drainage commissioners shall convene with the Superintendent of Construction and let the work contemplated to the “lowest responsible bidder,” thereby conferring a discretionary power in adjudging the responsibility of the bidder, in all respects, with which the courts will not interfere in the absence of undue influence or a procurement by fraud.

Civil ACTION from Currituck:, beard by consent of parties before Q. W. Ward, J., at chambers, in Elizabeth City on 12 May, 1910.

The facts relevant to the controversy and the questions presented for decision are very well stated in the brief of counsel for appellant as follows:

“This is a case involving the constitutionality of the act of the General Assembly of North Carolina of 1909, ch. 442, authorizing the establishment of levee or drainage districts; of the validity of bonds which the commissioners of a drainage district, purporting to have been established under the act, have contracted to issue; and also of the action of the commissioners *740in letting tbe contract for tbe construction of tbe work to one wbo was not tbe lowest bidder, in view of tbe provision of tbe statute requiring tbe contract to be let to tbe ‘lowest responsible bidder.”

“Under tbe statute a petition for tbe establishment of a drainage district in Currituck County was presented to tbe clerk of tbe Superior Court, and after proceedings duly taken was declared to be established as tbe Moyock District, No. 1. Tbe plaintiff herein is a citizen, taxpayer and landowner within tbe boundaries of tbe district, and bis lands have been assessed for tbe costs of tbe improvements to be made, under tbe classification of tbe lands embraced in tbe district according to tbe provisions of tbe statutes. Tbe plaintiff has brought this suit to restrain tbe commissioners of the drainage district from issuing bonds contracted for to defray tbe costs and expenses of tbe proposed improvements.

“Upon tbe case being brought to a bearing it was adjudged by tbe court below that tbe act of 1909, cb. 442, is valid and that tbe proceedings of the commissioners were regular, and that tbe plaintiff was not entitled to tbe injunction prayed for. An appeal was taken and has been duly perfected.

“Tbe following propositions, involving tbe constitutionality of tbe statute and tbe validity of tbe bonds, and also tbe action of tbe commissioners in letting tbe contract, are submitted to tbe Court:

“1. Conferring upon tbe clerk of tbe Superior Court .the power to establish a levee or drainage district is invalid as constituting a delegation of legislative power and duty to tbe judiciary.

“2. Tbe statute shows upon its face that it is for tbe benefit of private landowners and not for a public purpose.

“3. As a levee or- drainage district is a qwasi-municipal corporation, and tbe work is not a ‘necessary expense,’ within tbe meaning of Art. VII, sec. 7, of tbe Constitution of North Carolina, a debt cannot be contracted ‘unless by a vote of tbe majority of tbe qualified voters therein.’

“4. Tbe contract should have been let to tbe lowest bidder in this case or tbe work should have been advertised for new bids.

“Tbe foregoing propositions, so far as they involve tbe validity of tbe statute, are pointed to tbe provisions of tbe State and tbe United States Constitutions, declaring that tbe legislative, executive and supreme judicial jiowers of tbe Government ought to be forever separate and distinct from each other; that no person ought to be deprived of bis property but by tbe law of the land or by due process of law; and that no municipal *741corporation shall contract any debt except for tbe necessary expenses thereof, unless by a vote of the majority of the qualified voters therein.”

J. H. McMullan and T. LI. Gdivert for plaintiff.

Pruden & Pruden and Brown Shepherd for defendant.

Hoke, J.,

after stating the case: The power of the Legislature to create special taxing districts for public purposes, separate and distinct from the ordinary political subdivisions of the State, such as counties, townships, etc., was declared and approved in the case of Smith v. School Trustees, 141 N. C., 143, and like power to create special assessment districts has been upheld by the Court in several well-considered decisions. Asheville v. Trust Co., 143 N. C., 360; Busbee v. Commissioners, 93 N. C., 143; Commissioners v. Commissioners, 92 N. C., 180; Shuford v. Commissioners, 86 N. C., 552; Newsome v. Earnheart, 86 N. C., 391; Cain v. Commissioners, 86 N. C., 8.

The principle has been frequently extended and applied to the creation of these drainage districts, and while certain statutes may have been declared void, this as a rule was because the rights of persons affected had not been in some way sufficiently safeguarded; and, so far as we have examined, the power of the General Assembly to enact legislation of this character has not been successfully questioned. Adams v. Joyner, 147 N. C., 77; Porter v. Armstrong, 139 N. C., 179; Pool v. Trexler, 76 N. C., 297; Norfleet v. Cromwell, 70 N. C., 634; Fall Brook v. Bradley, 164 U. S., 112; Warts v. Hoagland, 114 U. S., 606; Land and Stock Co. v. Miller, 170 Mo., 240; Morrison v. Morey, 146 Mo., 543; Lagima Drainage District v. Mastin Co., 144 Cal., 209; Cribbs v. Benedict, 64 Kans., 555; Bryant v. Robbins, 70 Wis., 258.

Speaking to such legislation, and the reasons upon which it may be made to rest, Rodman, J., delivering the opinion in Norfleet v. Cromwell, supra, said:

> “The defendant takes higher ground, and contends that the act of 1795 was unconstitutional, because it took his property for a mere private purpose. It is admitted that that cannot be lawfully done, and the only question on this point is as to the character of the purpose: whether it was to the benefit of one or of a limited number of individuals only, or of such general and public utility as justifies a State in the exercise of its power of eminent domain.

> “It is well known that in the Atlantic section of this State there are hundreds of thousands of acres of what are called swamp lands, which from the flatness of their surface and the *742filling up of tbe natural courses of drainage, if any ever existed, cannot be relieved of tbe water wbicb ordinarily covers them, and made fit for human habitation and cultivation, except by cutting artificial canals from them into some convenient creek or river, which must necessarily pass through the intervening lands of the riparian proprietors. If these canals can he cut only by permission of the owners of the banks of the necessary outlets, this vast area of fertile land must remain for ages an uncultivated and unpopulated wilderness, and it will be entirely valueless to those who bought it from the State on the faith of its laws. An act which aims to remedy so great an evil, affecting so many persons now living, and so many more in the future, must be. deemed one of general and public utility. In an agricultural view, it now benefits the whole population of that part of the State in which these swamps are found.

> “The right of the State to condemn lands for drains rests on the same foundation as its right in cases of public roads, mills, railroads, cartways, schoolhouses, forts, lighthouses, etc. In the case of public roads, it has never been doubted, and the weight of authority is decidedly in favor of its existence for the other purposes mentioned. Roads and aqueducts are classed together in the Institutes as servitudes of the same public character. In the swamps which the act in question chiefly affects, the canals are more important than the roads, as they must always precede them. The right to drain through the banks of a natural watercourse is exactly similar in character to the right to construct dykes or levees to keep their excessive waters from overflowing the adjacent lands, a right which has been recognized in the legislation of all countries from the most ancient times. Witness the dykes which protect the coast of Holland,.the fens of Lincolnshire, the lands on the Mississippi and on the Potomac. Both purposes are classed together in our act of 1789.

> “The act in question, and others of a like character respecting mills, etc., are of ancient date. They have been incidentally sanctioned by this Court in many decisions, and if their constitutionality has never been directly affirmed, it may be because it was never questioned. These acts are not peculiar to North Carolina. Acts concerning mills, similar to ours, exist in many of the States (Washburn Easements, 394 [329]), and respecting drainage, at least, in Massachusetts (Gen. Stat., ch. 148) and New York (2 Rev. Str, 548: People v. Nearing, 27 N. Y. [13 Smith], 306).”

The legislation in question here comes well within the principle established by these cases. It has evidently been pre*743pared with, great care, and seems to present a scheme for the drainage of these lowlands at once comprehensive, adequate and efficient, and in which the rights of all persons to be affected have been fully considered and protected.

When these drainage districts are created under statutes like this we are now considering, they are regarded as public quasi-corporations, partaking to some extent of the .character of a governmental agency, and for general purposes of taxation in the ordinary acceptation of the term they come, as a rule, within the restrictions established by the Constitution upon municipal corporations in reference to the imposition of taxes both as to the amount and method. Smith v. Trustees, supra; but under our decisions these restrictive provisions as to taxation have been held not to apply to the case of local assessments, where, as in this case, such assessments are made and collected by some recognized method apportioning, the burdens according to the benefits received by the property affected. Busbee v. Commissioners, supra; Commissioners v. Commissioners, supra; Shuford v. Commissioners, supra; Newsome v. Earnheart, supra; Cain v. Commissioners, supra.

In Shuford1s case it was held:

> “1. A tax levied only upon land Under the provisions of the 'stock law’ (Laws 1879, ch. 135) is not within the constitutional prohibition as to uniformity of taxation, and hence the assent of the qualified voters of the district affected is not necessary; and this, even though the act of the Legislature styles it a tax.

> “2. It is regarded as a local assessment, and made, with reference to special benefits derived from the property assessed, from the expenditure; while taxes are public burdens, imposed as burdens, for the purpose of general revenue.”

And in Commissioners v. Commissioners, 92 N. C., supra, Chief Justice Smith, on this subject, quotes with approval from the opinion in Cain v. Commissioners, as follows:

> “As the greater burden is thus removed from the landowner he, as such, ought to bear the expense by which this result is brought about.. The special interest benefited by the law is charged witb the payment of the sum necessary in securing the benefit. This and no more is what the statute proposes to do, and in this respect is obnoxious to no just objection from the taxed land proprietor, as it is free from any constitutional impediments.”

The objection urged, therefore, that no vote of the people on the proposition was required or provided for by the statute, must be overruled.

Nor can. the further objection be sustained that the act in question improperly undertakes to confer legislative power and *744duties on tbe clerk of tbe court, a judicial officer; for, on authority, tbe duties and powers conferred on tbe clerk by tbis statute are of a judicial nature.

Speaking to tbis question, in 10 A. and E., at page 239, it is said: “Tbe better doctrine, however, seems to be that tbe duties of tbe municipal authorities in determining tbe necessity for sewers (dependent on a like principle), their location and their general plan, are of a judicial or gwem-judicial nature, while tbe work of construction and maintenance is ministerial.” And authoritative decisions fully support tbe position as stated. Johnston v. District of Columbia, 118 U. S., 19; Callen v. City, 43 Kans., 627; Bellingham, Imp. Co. v. City, 20 Wash., 53; Wahoo v. Dickenson, 23 Neb., 426. Tbis disposes, we believe, of tbe objections urged against tbe validity of tbe statute.

It was further contended for plaintiff that, under tbe provisions of tbe law, tbe commissioners bad no right to accept and award tbe contract to a higher bidder, but that “tbe contract should have been let to tbe lowest bidder, or tbe work should have been advertised for new bids”; but tbe language of tbe statute is that “They, together with tbe superintendent of construction, shall convene and let to tbe lowest responsible bidder” ; and tbe decisions are to tbe effect that when, by tbe clear import of tbis or similar language, a discretion is conferred, tbe action of tbe authorities will not be interfered with, unless tbe same was influenced or procured by fraud. People v. Kent, 160 Ill., 655; Brick and, Pav. Co. v. Philadelphia, 164 Pa. St., 477; Commonwealth v. Mitchell, 82 Pa. St., 343; Clapton v. Taylor, 49 Mo. App., 117.

In People v. Kent it was held:

> “1. Tbe word ‘responsible,’ applied to an undertaking to pay money only, means financial ability; but in tbe statute for letting contracts for public improvements, which requires a ‘responsible bidder,’ it has tbe wider meaning of ability to respond to tbe requirements of tbe contract, having full regard to tbe subject-matter thereof.

> “2. Tbe requirement of a statute, that contracts for a public improvement shall be let to tbe lowest responsible bidder, does not require tbe letting of a contract to tbe lowest bidder upon tbe ascertainment of bis financial responsibility only, but tbe term ‘responsible’ includes tbe ability to respond by tbe discharge of tbe contractor’s obligations in accordance with what may be expected or demanded under tbe terms of tbe contract.

> “3. Tbe courts cannot interfere, in tbe absence of fraud, with tbe exercise of tbe official discretion of a public officer entrusted with tbe duty of awarding a contract, in determining *745whether a certain person was the lowest responsible bidder, after investigation of such person’s record in doing similar business before.”

And in Clapton v. Taylor, supra:

> “2. In letting contracts for street improvements the duty of city authorities is not wholly ministerial, but partakes sufficiently of a judicial character, in the absence of fraud or misconduct, to render their conclusion binding; and the law in regard to the letting of such contracts does not mean absolutely that the contract shall be given to the lowest bidder without regard to fitness, and the city authorities are presumed to have done, and not to have exceeded, their duty.”

The case was submitted for our decision near the close of the term, with a request that an early decision be rendered, and we may have written somewhat hurriedly. Our investigations, however, have been very much facilitated by the excellent briefs submitted by counsel for both parties, and we desire to express appreciation of the commendable diligence they have shown in their preparation; and the great aid these briefs have been to the Court in reaching a satisfactory conclusion on the questions presented.

For the reasons stated, we are of opinion that the judgment of his Honor below must be affirmed, and it is so ordered.

Affirmed.