Rensselaer Republican, Volume 26, Number 35, Rensselaer, Jasper County, 26 April 1894 — A LETTER FROM MR. GIFFORD. [ARTICLE]

A LETTER FROM MR. GIFFORD.

Editor Republican.—l don’t think your comments 05 the recent decision of the circuit court in the Gifford Drainage District case are quite fair and neither do I think the decison is law. I refer to the article ‘•Gifford law knocked out.” I might say that I do not court newspaper notoriety, but this is a matter of public interest and the article in question would have been more properly headed “Jasper County knocked out” by the decision of the Cireuit Court. The public may be interested in learning th it the case has been appealed to the Supreme Court Both your comments and the decision of the court goes largely upon the theory that, first, the county suiveyor was by the law of ’92, clothed with the powers of a judge and consequently the law was unconstitutional. If this point is well taken, the same decision knocks out all the other drainage laws of the State of Indiana as he performs less judicial acts under the law of ’93 than he does under the prior laws. The second criticism which you make and the court makes, is because that I as an interested party, could not act as commissioner or contractor. You intimate, as well as the couit, that I let the contract to myself. This is simply false. It is true that I entered into an agreement with 133 people to do the work specified and to act as one ot the commissioners. It is also true that there were 44 people who did not sign this agreement and who were expected to pay a small amount of money to be determined by the court on the basis of the benefit that they received from the work. You say in your article that the court decided that it was illegal for me to give a bond in my individual capacity to myself in my official capacity. In reply to this statement would say I gave no bond at all, and no bond was necessary because the work was already perhaps half done and this was regarded as a better security than anj r bond could furnish, that such work would be completed. You and the court both say that the law is unconstitutional because there was no provision made for paying for land that was taken for the ditch. Why either you or the court could say so, no man on this earth can explain, except upon the theory that neither you nor the court read section 14 of the law.

Again, in this particular case there was no question arising touching such lands for the reason that all such lands had been purchased and the compensation agreed upon in the articles forming the corporation. This law was framed and rests upon this theory that if four men owning separate tracts of land which required a combined system of drainage. If three of them can agree upon the work they want done and what each shall pay, they may reduce such agreement to writing and if the county surveyor approves it they may form a drainage diatrict, notwithstanding the objections of the fourth.

They are required to name in that agreement a board of commissioners which shall serve until the first election. Of necessity in this case they would have to name two of their own number and are permitted to name three. At least they are not required to name a man for< commissioner who would not sign any agreement and refused to contribute anything to the work. They are permitted undter this law to agree that one man may do the work, and his share of the expenses and the share of each of the other two men may be settled by such agreement and the share of the fourth man may be assessed by the court’

It is true that Judge Willey has found this law unconstitutional. It does not follow that an agreement like the one above suggested is fraudlent by any means, but it might be void if it conflicted with any principle of the constitution. Upon this question the parties in interest including myself, are very anxious to take the decision to the Supreme Court. We do not believe that the law conflicted in any way with the constitution of the State of Indiana. We do not feel that the authorities cited upon our side of this question were properly considered by the Jasper County Circuit Judge, and we anxiously await the decision of the Supreme Court of the State of Indiana. Should Judge Wiley be sustained by the Supreme Court it leaves the State of Indiana practically without any drainage laws, and so far as it affects me personally, I wish to say that it affects me much less than it does the other people of the state. When I wish to purchase a piece of land because of its being cheap and yet good soil only lacking drainage to develop its value, I very much prefer to purchase all the lands affected by the construction of such drains and thereby avoid any clashing of interests, and in this particular case 95 per cent, of all questions have been settled by agreement. The other five per cent will be lost if the Supreme Court sustains Judge Wiley's views. It will be otherwise if the Supreme Court sustains the law. In any event the loss will be very much leas than the costa have been in either the Waukarusa or the

Iroquois River, and while this is so there is a very large item besides which should count the same as money, and that is that this work is about completed, while neither of the other two enterprises have accomplished anything in the way of work. I wish to add that notwithstanding the unfavorable criticism of the court or your paper, I have no great fears that my neighbors in Gillam, Walker or Barkley townships will ever accuse me with any fraud connected with these ditching operations. There are a few who may honestly think tha.t they should not contribute anything towards the construction of these ditches, in which opinion I disagree with them as well as the county surveyor, the county board and the 133 others who signed the agreement. We at all times have been willing to submit the question whether they should or should not contribute any« thing, to the decision of the county board, and is so, how much. If this constitutes a fraud we are all guilty. If it does not, then any imputation of fraud resting upon our action in this particular, falls to the ground. ~ In conclusion I wish to say that I believe the law of ’93 is not only constitutional but I believe it is the best drainage law that has yet been written, and I believe that it will be sustained by the Supn me Court and be approved by the people of the state of Indiana, and I hope notwithstanding Judge Wiley’s criticism and the able counsel representing this drainage district, that the public will yet thank me for my ifforts, not only in draining the Haddock marsh, but- in drawing the law of ’93. Respectfully submitted,

B. J. GIFFORD.

We give room to Mr. Gifford’s article although we hardly see the occasion for his writing it. What he calls The Republican’s comments on the decision were not comments at all, but simply a synopsis of the main points of the decision given as faithfully and impartially as we could, from notes we made, as judge Wiley delivered it m court. As to the question whether the decision is good law or not, we have never expressed an opinion, but we are now f ree to say that, after hearing Judge Wiley’s masterly summing up of the weak points of the law, and his citations of authorities and decisions bearing upon it, we shall be surprised if the Supreme Court does not sustain his decision.