CHAPTER 151

APPROPRIATION - STATE SOIL CONSERVATION COMMISSION AND ESTABLISHING UNIFORM DRAINAGE LAW

AN ACT ESTABLISHING A UNIFORM DRAINAGE LAW FOR THE STATE OF DELAWARE BY PROVIDING THE PROCEDURE FOR THE ESTABLISHMENT OF AND DEFINING THE POWERS, DUTIES AND ORGANIZATION OF COUNTY BOARDS OF DITCH COMMISSIONERS AND TAX DITCHES, BY PROVIDING FOR THE LEVY AND COLLECTION OF DITCH TAXES, THE TRANSFER OF DITCHES IN KENT COUNTY BY THE STATE HIGHWAY DEPARTMENT TO TAX DITCHES, THE EMPLOYMENT OF A STATE DRAINAGE ENGINEER BY THE STATE SOIL CONSERVATION COMMISSION AND FOR THE ELECTION OF DITCH MANAGERS, BY ENUMERATING THE POWERS, DUTIES AND OBLIGATIONS OF THE STATE SOIL CONSERVATION COMMISSION, THE COUNTY SOIL CONSERVATION DISTRICTS IN EACH COUNTY, THE RESIDENT ASSOCIATE JUDGE OF EACH COUNTY, THE SUPERIOR COURT IN EACH COUNTY, THE COUNTY ASSESSORS, THE COUNTY TREASURER AND RECEIVER OF TAXES OF EACH COUNTY, THE STATE HIGHWAY DEPARTMENT, THE STATE DRAINAGE ENGINEER, AND LAND OWNERS IN RESPECT THERETO AND BY PROVIDING AN ANNUAL APPROPRIATION THEREFOR.

Be it enacted by the Senate and Home of Representatives of the State of Delaware in General Assembly met:

Section 1. LEGISLATIVE POLICY:--It is hereby declared that the drainage of low, wet, swampy or overflowed lands or lands subject to overflow shall be considered a public benefit and conducive to the public health, safety and welfare.

Section 2. PURPOSE:--It is the purpose of this Act in carrying out the policy declared in Section 1 to provide a basis for a uniform system for establishing, financing, administering, maintaining and dissolving drainage organizations in the State under the supervision of the State Soil Conservation Commission to the end that the conservation of the soil, water, wildlife, forest and other resources of the State may be accomplished in a workable and practicable manner.

Section 3. DEFINITIONS:--The following words and phrases when used in this Act shall have for the purposes of this Act, the meanings respectively ascribed to them in this Section, unless a different meaning appears from the context.

"Landowner" or "owner" shall mean that person or group of persons in whom the entire title to a certain tract of land is vested.

"Taxable" shall mean any person entitled to vote under the provisions of this Act.

"Benefits" shall include, but shall not be limited to, the privilege of draining one's lands into a Tax Ditch formed under this Act.

Section 4. BOARD OF DITCH COMMISSIONERS AND ALTERNATE DITCH COMMISSIONERS; APPOINTMENT, TERMS OF OFFICE, REIMBURSEMENT:--A Board of Ditch Commissioners is hereby created for each county within the State. Within sixty days after the effective date of this Act the Governor shall appoint a Board of three Ditch Commissioners and three Alternate Ditch Commissioners. These men may be appointed from lists of ten or more names submitted by the Supervisors of the Soil Conservation District within the county. All men appointed to these positions must be those who are interested, willing and competent. Each Ditch Commissioner and Alternate Ditch Commissioner shall be a resident landowner of the county from which he is appointed, and shall be familiar with farming and with land values within such county. The term of office for each Ditch Commissioner shall be three years, except that in the case of the Ditch Commissioners first appointed to each Board one shall be appointed for a term of one year, one for a term of two years, and one for a term of three years. The term of office for the Alternate Ditch Commissioners shall be one year each. At the expiration of the term of office of each Ditch Commissioners, the vacancy so created shall be filled in the same manner as the original appointment was made. In the case of the death, resignation, or removal from office of a Ditch Commissioner, the vacancy shall be filled by one of the Alternate Ditch Commissioners to serve for the remainder of the term as prescribed herein for the original appointment of the vacating Ditch Commissioner. Except in the case of death or removal from office, a Ditch Commissioner shall hold office until his successor has been appointed. In those cases where any member of the Board of Ditch Commissioners owns lands within the area to be drained by a proposed Tax Ditch, such member. may not serve as a member of said Board on that particular Tax Ditch and an Alternate Ditch Commissioner shall serve in his stead.

A Chairman of each Board of Ditch Commissioners shall be designated by the members thereof and such designation may be changed from time to time. A majority of the Ditch Commissioners of each Board shall constitute a quorum and the concurrence of a majority in any matter within their duties shall be required for its determination. The Ditch Commissioners shall be entitled to receive reimbursement for their expenses, including traveling expenses necessarily incurred in the discharge of their duties, at a rate not to exceed Ten Dollars ($10.00) per day as determined by the State Soil Conservation Commission. The Ditch Commissioners shall be reimbursed for said expenses by the landowners petitioning to have a Tax Ditch formed. Such reimbursement will come from funds deposited in advance by the petitioners at the time the petition is filed or from the first monies collected by the Tax Ditch after it is organized, the manner to be decided by the County. Soil Conservation District pursuant to the provisions of Section 14.

Section 5. REIMBURSEMENT OF DITCH COMMISSIONERS:--Ditch Commissioners will be reimbursed for their expenses incurred in the discharge of their duties in connection with the formation of a Tax Ditch after a Tax Ditch Order has been confirmed and after the thirty-day appeal period has expired, or at such time as the Superior Court shall issue an order denying the petition for the formation of a Tax Ditch.

Section 6. EMPLOYMENT OF STATE DRAINAGE ENGINEER AND ASSISTANTS:--The State Soil Conservation Commission shall employ a competent engineer, to be known as the State Drainage Engineer, in order to assist it in carrying out its functions under this Act. Such Engineer shall have an engineering degree from a college or university of recognized standing and shall have had substantial experience in drainage work for a period of at least five (5) years. The Commission may employ such other personnel and obtain by purchase or otherwise such supplies and equipment as may be necessary to carry out the provisions of this Act. The State Drainage Engineer shall be cooperatively employed by the State Soil Conservation Commission and by the Delaware Agricultural Extension Service.

Section 7. PETITION FOR FORMATION OF TAX DITCH: --Whenever one or more of the owners of any lands desire said lands to be drained, they may present a petition for the formation of a Tax Ditch to the Superior Court of the County in which all or the major portion of the area to be drained is located, through the Board of Supervisors of the Soil Conservation District of said County.

Section 8. FORM OF PETITION:--A petition for the formation of a Tax Ditch shall be in the following form:

PETITION

To the Superior Court of ______ County through the Board of Supervisors of the Soil Conservation District of ______ County:

Whereas the undersigned (is) (are) the owners) of certain low, wet, swampy or overflowed lands or lands subject to overflow situated in _____ Hundred (s) _______ County (Counties), and the State of Delaware, said lands being more particularly described as follows ___________________________ ;

Whereas the draining of said lands would be a public benefit and conducive to the public health, safety and welfare; and

Whereas the undersigned desire that a Tax Ditch be formed under the provisions of _________, said Tax Ditch to be known as ________ Tax Ditch;

The undersigned therefore request the Soil Conservation District of County to make the investigation required under the above cited Act and, if the findings thereon be favorable, to file this petition in the Office of the Prothonotary of County so that the Superior Court of said County may take the necessary steps required by law to issue an order establishing _________ Ditch.

Dated this _______ day of ___(month)_______, at ___(year)_________, Delaware.

_______________________

(Space for Signatures)

Section 9. DUTIES OF COUNTY SOIL CONSERVATION DISTRICT:--The Board of Supervisors of the County Soil Conservation District shall, upon a receipt of a petition for the formation of a Tax Ditch, determine whether the petition is in the form set forth in Section 8 and has been properly executed. If the petition is in the prescribed form and has been properly executed, the Board shall immediately notify the State Soil Conservation Commission, and by virtue of such action shall have made available to it the services of the State Drainage Engineer to assist it with the investigation concerning the possible formation of said Tax Ditch.

Section 10. INVESTIGATION BY COUNTY SOIL CONSERVATION DISTRICT AND STATE DRAINAGE ENGINEER:--The County Soil Conservation District shall cause an investigation to be made by the State Drainage Engineer in order to ascertain the boundaries of the proposed Tax Ditch, and to obtain such other information as may be necessary to enable said District to determine whether the formation of said Tax Ditch is practicable and feasible and is in the interest of the public health, safety and welfare. The District may hold such hearings as it deems necessary in order to assist it in making such determination.

Section 11. REPORT OF STATE DRAINAGE ENGINEER:--The State Drainage Engineer shall make a formal report of his investigation to the County Soil Conservation District together with his recommendations. A copy of said report shall be filed with the State Soil Conservation Commission.

Section 12. DETERMINATION OF COUNTY SOIL CONSERVATION DISTRICT:--The County Soil Conservation District shall, upon the basis of the information obtained under the provisions hereof, determine whether the formation of the proposed Tax Ditch is practicable and feasible and is in the interest of the public health, safety and welfare.

Section 13. FILING OF PETITION BY COUNTY SOIL CONSERVATION DISTRICT:--If the County Soil Conservation District determines that the formation of the proposed Tax Ditch is practicable and feasible and is in the interest of the public health, safety and welfare, it shall file the petition in the Office of the Prothonotary of the County in which all or the major portion of the land to be drained is located, together with the report of the State Drainage Engineer and such other relevant information as the District deems to be appropriate.

Section 14. CASH DEPOSIT:--The County Soil Conservation District shall require that a specified sum be deposited with it by the petitioners before the petition is filed in the Office of the Prothonotary to cover filing fees, mailing and other necessary expenses. The amount of the deposit shall be determined by the County Soil Conservation District and may vary according to the size of the area involved, the complexity of the problem, and other pertinent factors. If the original deposit is not sufficient, the District shall require an additional deposit as soon as the need for such becomes evident. The District shall keep an account of such funds and shall return any unused portion thereof to the petitioners upon completion of final action by the Superior Court. When such action is favorable, the petitioners shall be repaid, out of the first monies collected by the Tax Ditch, all expenses of formation as may have been charged to them by the County Soil Conservation District.

Section 15. PAYMENT OF FILING FEES AND OTHER EXPENSES:--From the funds deposited with it pursuant to Section 14, the County Soil Conservation District shall pay filing fees, mailing and other necessary expenses incurred in the investigation and formation of a Tax Ditch.

Section 16. ACTION BY BOARD OF DITCH COMMISSIONERS AND RESIDENT ASSOCIATE JUDGE:--Upon the filing of a petition in the Office of the Prothonotary of a County the Board of Ditch Commissioners of such County shall, at the direction of the Resident Associate Judge thereof, go upon the lands to be drained and determine the location and extent of needed permanent rights-of-way; the approximate sizes, grades and locations of the required drainage ditches; the estimated cost of construction of the proposed drainage system; the estimated cost of annual maintenance of the drainage system; the amount of benefits and damages to the lands; and the amount of the assessments against the lands. The Board of Ditch Commissioners shall obtain from the County Soil Conservation District such assistance and information as may be needed in making the required determinations.

Section 17. COMPENSATION FOR DRAINAGE WORK PREVIOUSLY PERFORMED:--The Board of Ditch Commissioners may deem adequate any ditch or ditches already constructed as the whole or as a part of the proposed drainage system and may allow a fair compensation to landowners for work previously done by them on any such ditch or ditches.

Section 18. DETERMINATION OF COST:--In determining the cost of construction of the proposed drainage system, the Board of Ditch Commissioners shall include, among other things, the cost of financing said construction, the total amount of damages to the lands to be drained, and the total amount of compensation, if any, to be paid to each landowner for any ditch or ditches previously constructed and deemed adequate under Section 17. The cost of annual maintenance of the proposed drainage system shall be determined separately from the cost of construction of such system.

Section 19. ASSESSMENT LIST:--After determining the amount of benefits to each owner's land, the Board of Ditch Commissioners shall prepare an assessment list. Said assessment list shall show the names and addresses of the owners of all lands which will be benefited by the proposed drainage system, and shall also show opposite the name of each such owner the acreage assessed and the total amount of the benefits thereto. Said assessment list, as modified by the Ditch Order, hereinafter mentioned, shall be the basis for all taxes levied under this Act.

Section 20. REPORT OF BOARD OF DITCH COMMISSIONERS:--The Board of Ditch Commissioners with the assistance of the State Drainage Engineer shall prepare a report containing the following determinations and information:

a. The name of the proposed Tax Ditch.

b. The Hundred and the County in which all or a part of the proposed Tax Ditch is situated.

c. An aerial photograph, map or drawing to a scale large enough to permit the following to be shown:

(1) The main ditch, all prongs, all sub-prongs and other divisions of the proposed Tax Ditch.

(2) All public roads and railroads, and all public utility installations near the points where they reach, cross, or pass close to any part of the proposed Tax Ditch.

(3) The exterior boundaries of the area proposed to be drained.

(4) The acreage and approximate boundaries of each farm, parcel or piece of land proposed to be drained, together with the identification of each farm, parcel, or piece of land by name or code number.

d. Profiles and cross sections, together with the necessary capacities expressed in cubic feet of discharge per second, of the main ditch, all prongs, all sub-prongs and other divisions of the proposed Tax Ditch; and the required capacity of structures such as culverts and bridges under roads and railroads which cross or serve any part of the system.

e. The basis upon which all assessments and awards for damages and other compensation have been made, an explanation of damages and other compensation allowed, and other pertinent information.

f. The estimated cost of constructing the proposed Tax Ditch.

g. The estimated cost of annual maintenance of the proposed Tax Ditch.

h. The value of the total benefits to all lands by virtue of the proposed Tax Ditch.

. The assessment list required under Section 19.

a. The names and addresses of all landowners entitled to damages or compensation for any ditch or ditches previously constructed and deemed adequate under Section 17, and the amount of damages or compensation to which each such landowner is entitled.

e. The number of Ditch Managers, not less than two nor more than five, which are required to conduct the business affairs of the proposed Tax Ditch.

1. The location and extent of needed rights-of-way including overhead and underground clearances where necessary.

Section 21. NOTICE TO LANDOWNERS OF HEARING AND REFERENDUM:--Upon completion of the above report, the Board of Ditch Commissioners shall notify the owners of all lands to be benefited or damaged by the proposed Tax Ditch of a hearing concerning the establishment of said Tax Ditch to be held in the County in which all or the major portion of the lands to be drained is located. Said notice shall be given by mail at least fifteen (15) days prior to the hearing and shall designate the time and place thereof. It shall also state that the purpose of the hearing is to consider the formation of a Tax Ditch which will affect the lands of the person notified and to hold a referendum among the affected landowners concerning the establishment of said Tax Ditch. In addition, the notice shall state the place or places where a copy of the above report of the Board of Ditch Commissioners shall be available for inspection at least ten (10) days prior to the hearing.

Section 22. HEARING AND REFERENDUM:--At the time and place designated in the above notice the Board of Ditch Commissioners, with the assistance of the State Drainage Engineer, shall hold a hearing at which all persons interested shall have an opportunity to express their opinions on and objections to the report of the Board of Ditch Commissioners. At the conclusion of said hearing a referendum shall be held under the supervision of the Board of Ditch Commissioners and the State Drainage Engineer. Said referendum shall afford each landowner the opportunity to cast his ballot for or against the formation of the proposed Tax Ditch in accordance with the report of the Board of Ditch Commissioners. Each landowner shall be entitled to the same number of votes as the number of dollars assessed against his lands by the Board of Ditch Commissioners. If, however, as a result of said hearing the Board of Ditch Commissioners deems it advisable, it may adjourn said hearing to a fixed future date in order to enable it to re-examine and modify its report in the light of the opinions and objections expressed at the hearing.

Section 23. REPORT AND RECOMMENDATIONS OF BOARD OF DITCH COMMISSIONERS:--After holding and hearing and supervising the referendum provided for in Section 22, the Board of Ditch Commissioners shall file the original and one copy of its report in the Office of the Prothonotary of the County in which all or the major portion of the lands to be drained is located, and shall attach to said report a certificate stating the results of the referendum and the place where and the time when it was held. The Board of Ditch Commissioners shall also prepare and attach to the report a statement showing:

a. Whether the Board of Ditch Commissioners has fully discharged the duties assigned to it as prescribed by law.

b. Whether the proposed Tax Ditch is practicable and feasible and in the interest of the public health, safety and welfare.

c. Whether in laying out the Tax Ditch, the lands of every landowner assessed are provided with a direct drainage outlet into some part of the proposed drainage system.

d. Any objections made to the report of the Board of Ditch Commissioners which did not warrant further changes in the report and the reasons therefor.

e. Whether the total benefits that will result from the construction of the proposed Tax Ditch will exceed the total cost.

. Any other recommendation or information which the Board of Ditch Commissioners may deem advisable.

Section 24. SIGNING OF REPORT; DISSENT THEREFROM:--The report of the Board of Ditch Commissioners, including the statement required by Section 23, shall be signed by all of the Commissioners concurring therein. Any Ditch Commissioner who dissents therefrom shall attach to said report the reasons for his dissent.

Section 25. DISTRIBUTION OF COPIES OF COMMISSIONERS' REPORT; CERTIFICATION:--Immediately after filing in the Office of the Prothonotary its report and the statement required by Section 23, the Board of Ditch Commissioners shall forward one copy of the report to the State Drainage Engineer who shall make any changes therein required by the Ditch Order when it becomes final and thereafter have said copy certified by the Prothonotary. Said certified copy shall remain as a permanent record in the office of the State Soil Conservation Commission.

Section 26. ACTION BY SUPERIOR COURT:--After the report and statement of the Board of Ditch Commissioners have been filed in the Office of the Prothonotary of the appropriate County, they shall be carefully reviewed by the Superior Court of said County.

If the report of a majority of the Board of Ditch Commissioners is opposed to the formation of the proposed Tax Ditch, or if the certificate stating the results of the referendum shows that a majority of all votes cast were opposed to the formation of the Tax Ditch, or if such report shows that the total cost of the construction of the Tax Ditch will exceed the benefits that will result therefrom, then the Superior Court of said County shall issue an order denying the petition for the formation of the Tax Ditch.

If the report of a majority of the Board of Ditch Commissioners is in favor of the formation of the proposed Tax Ditch, and if the certificate stating the results of the referendum shows that a majority of all votes cast were in favor of the formation of the Tax Ditch, and if such report shows that the total benefits that will result from the Tax Ditch will exceed the cost of construction, then the Superior Court of said County shall set a date for the final hearing on the petition and shall direct the Prothonotary to give notice of said hearing by publication in a newspaper of general circulation in each County in which any of the lands to be drained are located and by posting a written or printed notice on the door of the court house of each such County and at five (5) conspicuous places in or near the area of the proposed Tax Ditch, such publication and posting to be made for at least fifteen (15) days prior to the final hearing. From the time the report of the Board of Ditch Commissioners is filed in the Office of the Prothonotary of the appropriate County it shall be open to inspection by any interested person.

Section 27. FINAL HEARING; DITCH ORDER:--On the date set for the final hearing before the Superior Court any interested person may appear in person or by counsel and file his objection in writing to the report of the Board of Ditch Commissioners, and it shall be the duty of the Superior Court to review the report of the Board of Ditch Commissioners and any objections filed thereto, and make, in consultation with the Ditch Commissioners, such changes as are necessary to render substantial and equal justice to all interested persons. If the conditions set forth in the third paragraph of Section 26 still exist after said objections have been considered and the necessary changes have been made in the report of the Board of Ditch Commissioners, the Superior Court shall confirm said report and issue an order granting the petition for the formation of the proposed Tax Ditch. The confirmed report shall be considered a part of the order establishing the Tax Ditch and said order shall be known as the Ditch Order.

Section 28. RIGHT TO A JURY'S VERDICT:--Within 30 days after the issuance of the Ditch Order any interested person who feels aggrieved by the report of the Board of Ditch Commissioners shall apply to the Superior Court for an order in the nature of a Writ of Inquiry to ascertain by the verdict of a jury at the bar of said court, the full and true value of the benefits, damages, injury or loss which will result to the lands of such person from the construction of the proposed Tax Ditch. The verdict rendered shall be final and conclusive as to such lands unless set aside by the court for legal cause or an appeal is taken therefrom. The Ditch Order shall be amended in accordance with the final determination of all issues. If, however, after the Ditch Order has been so amended, the conditions set forth in the third paragraph of Section 26 no longer exist, the Superior Court shall issue an order denying the petition for the formation of a Tax Ditch. If any landowner shall fail to make such application within such period, the Ditch Order shall be final and binding as to the lands of such owner and no appeal therefrom shall be allowed.

Section 29. DEFENSE OF CONTESTED DITCH ORDERS:--In the event that the Ditch Order is contested, it shall be the duty of the Board of Ditch Commissioners to defend said Order, and in conducting its defense, the Board shall be represented by the Attorney General of the State of Delaware.

Section 30. NOTICE OF FINAL ACTION ON DITCH ORDER:--When the Ditch Order has been confirmed or denied and the right to appeal therefrom has expired, the Prothonotary shall notify the appropriate County Soil Conservation District accordingly, and shall forward a certified copy of the Court's order to the State Drainage Engineer.

Section 31. DITCH ORDER A PERMANENT COURT RECORD:--The Ditch Order, together with any amendment thereto, shall be a permanent court record and shall be kept in the Office of the Prothonotary of the County wherein it was issued. It shall not be removed from said office except in cases where an emergency so requires. The Prothonotary shall also transcribe the petition, court order, and all proceedings in connection therewith in a docket appropriately labeled and set aside for that purpose.

Section 32. EMPLOYMENT OF PRIVATE ENGINEER: --In the event that the Board of Supervisors of the County Soil Conservation District in which all or the major portion of the area to be drained is located determines that the formation of a Tax Ditch is practicable and feasible and is in the interest of the public health, safety and welfare, the interested landowner or owners may at any time thereafter employ at their expense engineering personnel of their selection to assist the State Drainage Engineer.

Section 33. ORGANIZATION OF TAX DITCH; NOTICE OF FIRST MEETING:--The State Drainage Engineer at his earliest convenience after the Ditch Order becomes final, shall call a meeting of the taxables for the purpose of organizing the proposed Tax Ditch, including the election of Ditch Managers, as called for in the Ditch Order, and a Secretary-Treasurer; the formulation of a plan for constructing, financing, administering and maintaining the proposed Tax Ditch; and for levying taxes to cover the costs of construction and maintenance. The State Drainage Engineer shall give at least ten (10) days' notice of the meeting by posting a notice thereof at five (5) conspicuous places in or near the area of the Tax Ditch stating the time, place and object of the meeting. A notice of said meeting shall be sent to the Chairman of the Board of Supervisors of the County Soil Conservation District.

Section 34. DELIVERY OF COPIES OF DITCH ORDER AND OF THIS ACT:--At such meeting the State Drainage Engineer shall deliver to the Ditch Managers, when elected, a certified copy of the Ditch Order and a copy of this Act.

Section 35. MEETING TO BE ATTENDED BY REPRESENTATIVE OF STATE SOIL CONSERVATION COMMISSION:--In addition to the State Drainage Engineer, the County Soil Conservation District may be represented at such meeting by one member of the Board of District Supervisors.

Section 36. VOTING RIGHTS:--At all meetings each landowner shall be entitled to the same number of votes as the number of dollars assessed against the land of such owner in the Ditch Order. In the event that any lands are held by tenants in common or joint tenants, each such tenant in common or joint tenant shall be entitled to the same number of votes as his fractional share of the total number of dollars assessed against said lands. However, in the case of lands held by a husband and wife as tenants by the entirety, either the husband or wife may vote all the dollars assessed against their lands.

Section 37. VOTING BY PROXY:--Any person or persons entitled to vote pursuant to Section 36 of this Act may authorize another landowner within the Tax Ditch to cast his votes in his stead by executing a proxy. Said proxy shall be signed, dated and notarized.

Section 38. ELECTION OF OFFICERS; TERMS OF OFFICE:--At the first meeting the taxables shall elect from their group the number of Ditch Managers as specified in the Ditch Order and a Secretary-Treasurer. The term of office of each Ditch Manager and of the Secretary-Treasurer shall be one (1) year. If the Ditch Managers and Secretary-Treasurer first elected are elected prior to July 1st of any year, the time elapsing between said election and the first annual January meeting provided for in Section 41 shall be deemed to constitute the first year of their terms of office. However, if the Ditch Managers and Secretary-Treasurer first elected are elected on or after July 1st of any year, their terms of office shall not be deemed to begin until the said first annual January meeting, although they shall assume the duties and responsibilities of their respective offices immediately upon election.

In the event that any Tax Ditch officer dies, resigns, ceases to be one of the taxables, or is removed from office, it shall be the duty of the Ditch Managers to call a special meeting of the taxables within 60 days for the purpose of electing a taxable to serve the remainder of the term of such officer. However, except in the case of death or removal from office, each Tax Ditch officer shall continue to serve until his successor has been elected. In the event that a vacancy is so created in the office of Secretary-Treasurer, the Chairman of the Ditch Managers shall immediately notify the appropriate County Treasurer and Receiver of Taxes of said vacancy and furnish him with the name of the newly elected Secretary-Treasurer.

Section 39. CHAIRMAN OF DITCH MANAGERS:--Immediately after they are elected the Ditch Managers shall- designate one of their number to serve as Chairman. It shall be the duty of the Chairman to call meetings of the Ditch Managers and taxables and to preside thereat.

Section 40. COMPENSATION FOR TAX DITCH MANAGERS AND SECRETARY-TREASURER:--Tax Ditch Managers and the Secretary-Treasurer may be entitled to receive compensation at a rate to be determined by a majority of the eligible votes of those taxables present at the first meeting provided for in Section 41. The rate of compensation for the Tax Ditch Managers and Secretary-Treasurer may be revised only at a regular annual meeting of the taxables.

Section 41. ANNUAL AND OTHER MEETINGS OF TAXABLES:--At the first meeting, and at each annual meeting thereafter, the Ditch Managers shall set a date for the next annual meeting. All annual meetings shall be held in January. The Chairman of the Ditch Managers may also call special meetings at such times as the circumstances warrant. At least ten (10) days' notice of all meetings shall be given by posting a notice thereof at five (5) conspicuous places in or near the area of the Tax Ditch stating the time, place and object of the meeting.

Section 42. MEETINGS OF DITCH MANAGERS; QUORUM:--The Ditch Managers shall meet as often as necessary to properly conduct the business of the Tax Ditch. At such meetings a majority of the Ditch Managers shall constitute a quorum and the concurrence of a majority in any matter within their duties shall be required for its determination.

Section 43. POWERS OF TAX DITCH:--A Tax Ditch organized under the provisions of this Act shall constitute a governmental subdivision of this State and a public body, corporate and politic, exercising public powers, and shall have the following powers, in addition to such other powers as usually pertain to corporations:

a. To levy taxes.

b. To sue and be sued in the name of the Tax Ditch.

c. To make and execute contracts and other instruments, necessary or convenient to the exercise of its powers.

d. To borrow money for the purpose of constructing, maintaining and administering the Tax Ditch.

e. To acquire, by purchase, exchange, lease, gift, grant, bequest, devise, or otherwise, any property, real or personal, or any rights or interests therein.

f. To cooperate, or enter into agreements with the State or Federal governments or any agency or subdivision thereof.

g. To exercise the power of eminent domain, substantially in accordance with the procedure provided for the condemnation of right-of-way for railroads, with respect to lands outside the boundaries of the Tax Ditch which are needed for right-of-way or outlet purposes.

Section 44. SIGNATURES ON INSTRUMENTS ISSUED BY TAX DITCH: --Any note, bond, warrant or other instrument issued by a Tax Ditch pursuant to this Act shall be signed by the Chairman of the Ditch Managers and his signature shall be attested by the Secretary-Treasurer of said Tax Ditch.

Section 45. LIABILITY OF TAX DITCH OFFICERS:--No Ditch Manager or other officer of a Tax Ditch shall be held personally liable for the obligations of the Tax Ditch.

Section 46. LIMITATION ON BORROWING POWER OF TAX DITCH:--A Tax Ditch may borrow money pursuant to this Act with the consent of a majority of the votes cast at a meeting duly called under the provisions of Section 41, and in no event shall a Tax Ditch borrow money in excess of ninety per centum (90%) of the total benefits assessed against the lands benefited in the Ditch Order.

Section 47. DUTIES OF DITCH MANAGERS:--In addition to the duties specified in other sections of this Act the Ditch Managers shall have the following duties:

a. To determine from the taxables the desired program of operations.

b. To determine the amount of taxes to be levied to carry out such desired program.

c. At the first meeting or within thirty (30) days thereafter to prepare, with the assistance of the State Drainage Engineer, a comprehensive plan for carrying out the desired program, which plan shall include provisions for levying taxes and for financing said program.

d. To deliver a copy of the assessment list prepared under Section 19, as modified by the Ditch Order, to the County Assessor, making such changes in the names of the owners shown thereon as are warranted by transfers of the lands assessed to new owners.

e. To execute warrants to the County Treasurer and Receiver of Taxes authoriling and requesting the collection of all Tax Ditches taxes other than maintenance taxes.

f. To execute a warrant to the County Treasurer and Receiver of Taxes authorizing and requesting the collection of annual maintenance taxes.

g. To make a report of their activities during the year preceding each annual meeting which shall be given at that annual meeting.

h. To provide for construction work on the Tax Ditch.

. To provide for adequate maintenance of the Tax Ditch.

Section 48. DUTIES OF COUNTY ASSESSOR:--For Tax Ditches formed under this Act, the County Assessor shall transcribe the information shown on the assessment list delivered to him pursuant to Section 47d into a special assessment book, and shall keep the same as part of the permanent records of his office. He shall also change the names of the owner shown therein from time to time as such changes are warranted by transfers, of the lands assessed, to new owners.

Section 49. DETERMINATION OF TAXES:--In determining the amount of any taxes to be levied against each owner's lands under this Act, the Ditch Managers shall determine the same in accordance with the ratio which exists between the value of the benefits to each owner's lands and the total value of the benefits to all lands to be drained.

Section 50. WARRANTS FOR COLLECTION OF TAXES: --For Tax Ditches formed under this Act, warrants authorizing and requesting the collection of ditch taxes executed to the County Treasurer and Receiver of Taxes shall be signed by the Chairman of the Ditch Managers and the Secretary-Treasurer of the Tax Ditch and shall contain the following information:

a. The name of Tax Ditch.

b. The location by County and Hundred/s.

c. The date said warrant is delivered to County Treasurer and Receiver of Taxes.

d. The date that Tax Ditch assessment list was filed with County Assessor.

e. Total of that assessment list.

f. Tax rate based on that assessment list.

g. Total tax to be collected.

h. Method of payment, if by installments.

i. Statement as to whether said warrant is for construction, special or maintenance taxes.

j. Amount and terms of loans, if any, secured by said tax warrant.

k. Person/s, firm or corporation to be paid directly by Receiver of Taxes and amounts to be paid to him/them.

When Tax Ditch includes two (2) or more counties, separate tax warrants shall be executed by the Ditch Managers to each County Treasurer and Receiver of Taxes thereof.

Section 51. DUTIES OF COUNTY TREASURER AND RECEIVER OF TAXES:--All taxes levied by any Tax Ditch organized under the provision of this Act shall be collected by the County Treasurer and Receiver of Taxes in the County or Counties wherein the lands taxed are located. The County Treasurer and Receiver of Taxes shall accept tax warrants in proper form from such Tax Ditches, shall refer to Tax Ditch assessment lists on file with the County Assessor and shall collect such taxes warranted annually, pursuant to the terms of the warrants in the same manner as provided by law for the collection of County Taxes, and money so collected shall be paid monthly to the person/s, firm or corporation designated in the tax warrant to receive such money. Warrants received not later than May first of each year, by the County Treasurer and Receiver of Taxes, shall be processed to be collected during that same year. Tax warrants marked plainly as being for annual maintenance taxes shall be transcribed by the County Treasurer and Receiver of Taxes into a special tax book and the same shall be maintained as part of the permanent records of that office. Such annual maintenance taxes shall be deemed to have been levied by the Tax Ditch as of April 30th of each year except the year in which the regular or revised maintenance tax warrant is delivered to the County Treasurer and Receiver of Taxes, in which case the levy shall be effective from and after the date of the delivery of such tax warrant. Annual maintenance taxes, once warranted, shall be collected yearly by the County Treasurer and Receiver of Taxes on the basis of the original maintenance tax warrant until such time as the taxes for the cost of annual maintenance are changed and the County Treasurer and Receiver of Taxes is so notified by the delivery to him of a new maintenance tax warrant. The records of the County Treasurer and Receiver of Taxes shall be corrected whenever new maintenance tax warrants are so received.

Section 52. DUTIES OF SECRETARY-TREASURER:--In addition to any powers and duties set forth elsewhere in this Act, the Secretary-Treasurer of the Tax Ditch shall have the following powers and duties:

a. To keep accurate minutes of all meetings of the Ditch Managers and taxables, said minutes to be a part of the permanent records of the Tax Ditch.

b. To prepare a complete financial statement at the end of each calendar year, including therein an itemized report of all funds received, all funds expended, all funds due from taxes not yet collected, and all sums due and owing by the Tax Ditch. This statement and the records of the Secretary-Treasurer shall be audited annually by two qualified persons and they shall become part of the permanent records of the Tax Ditch.

c. To provide for the safe-keeping of any funds of the Tax Ditch which are placed in his custody.

d. To attend all meetings of the Ditch Managers and taxables.

Section 53. BOND OF SECRETARY-TREASURER:--The Secretary-Treasurer shall, before assuming the duties of his office and within fifteen (15) days after his election, furnish a bond in favor of the Tax Ditch, in an amount satisfactory to the Ditch Managers and with a surety or sureties to be approved by the Ditch Managers, conditioned for the faithful performance of his duties and for the payment to his successor of all Tax Ditch funds. To said bond and condition there shall be annexed a warrant or power of attorney to confess judgment thereon in the usual form. If any person elected Secretary-Treasurer shall neglect or refuse to give bond as aforesaid within the time specified, his right to hold such office shall be terminated, and the Ditch Managers shall call a special meeting of the taxables to elect a new Secretary-Treasurer who shall give bond and security as hereinbefore provided.

Section 54. INSTALLMENT PAYMENT OF TAXES:--The Ditch Managers may order the tax levied for the cost of construction to be paid in annual installments and shall designate the method of payment on the tax warrant when it is forwarded to the appropriate County Treasurer and Receiver of Taxes.

In the event that the Ditch Managers so order the tax levied for the cost of construction to be paid in annual installments, the entire tax shall, nevertheless, constitute a present lien on the lands against which it is levied, and the amount of the first installment shall not be less than the sum of all payments for damages and compensation as set forth in the Ditch Order, plus the costs and expenses incurred in the formation of a Tax Ditch.

Section 55. SECURITY FOR LOANS:--A Tax Ditch may secure the payment of any loan made to it by entering on the tax warrant provided for in Section 47e, a statement setting forth the fact that the taxes shown on the tax warrants have been pledged to secure the payment of a certain designated loan and, if a loan is so secured, by reciting the amount and terms of the loan from whom it is being obtained, and by directing the County Treasurer and Receiver of Taxes to pay any such taxes collected by him directly to the creditor until the loan is repaid. Such warrant may not be withdrawn and may not be altered or cancelled without the written consent of the creditor until the loan is repaid.

Section 56. SPECIAL TAX:--A special tax to raise the funds necessary to carry into effect any of the provisions of this Act and not otherwise provided for herein, may be levied by the Ditch Managers in the same manner as herein provided for levying taxes for original construction.

Section 57. TAXES, LIEN, ENFORCEMENT:--All taxes levied under this Act shall constitute a first and paramount lien against the lands to which they apply from and after the date of such levy, subject only to the lien for State and County taxes, which lien may be enforced by sale or otherwise in the same manner as the lien for the County taxes; and all such taxes shall be collected by the appropriate County Treasurer and Receiver of Taxes as provided in Section 51. Penalties for failure to make payment by the due date shall apply to taxes levied under this Act in the same manner and amount as in the case of County taxes, and funds so received shall be credited to the Tax Ditch.

Section 58. ADJUSTMENT OF MAINTENANCE TAX:--When in the opinion of the Ditch Managers the amount of the tax levied to defray the cost of annual maintenance is either insufficient or excessive, they may raise or lower the same for the current and succeeding years with the consent of the County Soil Conservation District, acting upon the advice of the State Drainage Engineer. If the annual maintenance tax is so raised or lowered, it will be apportioned to each landowner in accordance with the provisions of Section 49 and a new maintenance tax warrant shall be delivered to the appropriate County Treasurer and Receiver of Taxes.

Section 59. LIABILITY OF LANDOWNER:--No landowner shall be liable in any manner for any taxes levied by the Tax Ditch against the lands of another owner.

Section 60. PAYMENT OF DAMAGES AND COMPENSATION:--The damages and compensation awarded by the terms of the Ditch Order shall be paid to the person or persons entitled thereto out of the first funds available to the Tax Ditch under this Act, and no construction shall be begun until said damages and compensation have been paid.

Section 61. WILFUL OR NEGLIGENT OBSTRUCTION OF OR DAMAGES TO TAX DITCH; MISDEMEANOR; CIVIL LIABILITY:--If any person shall willfully or negligently obstruct or damage any part of a drainage system, and upon request of the Ditch Managers shall fail to remove said obstruction or to repair said damage at his own expense, it shall be the duty of the Ditch Managers to see that said obstruction is removed and that said damage is repaired. The person so obstructing or damaging the drainage system shall be liable for all loss or injury caused thereby and the expenses or charges for remedying the same, and said loss or injury, expenses or charges may be sued for and recovered by the Ditch Managers in the name of the Tax Ditch before any justice of the peace in the County where said obstruction or damage occurred.

Such willful obstruction of or damage to any part of a Tax Ditch shall be a misdemeanor and punishable by a fine of not more than fifty dollars.

Section 62. RIGHT OF INGRESS AND EGRESS:--It shall be lawful for the State Drainage Engineer, engineering personnel hired under the provisions of Section 32, the Soil Conservation District Supervisors, the State Soil Conservation Commission, the Ditch Commissioners, the Ditch Managers, or any of their employees or agents, to enter upon any lands within the area to be drained at all reasonable times in order to carry out the purpose of this Act.

Section 63. FAILURE OF DITCH OFFICERS TO PERFORM DUTIES IMPOSED BY THIS ACT:-,--In the event that any officer of a Tax Ditch shall fail to perform the duties imposed on him by this Act, it shall be the right of any taxable to petition the Superior Court from which the Ditch Order was issued and to request an order directing said officer to carry out his duties, and upon his failure to comply with said Order within the time stated therein to further petition the Superior Court for the removal of said officer.

Section 64. ADDITIONAL TERRITORY INCLUDED IN TAX DITCH:--Whenever one or more landowners desire their lands to be included within a Tax Ditch, they may so request the Supervisors of the Soil Conservation District within which the Tax Ditch is situated, and the procedure shall be the same as when a new Tax Ditch is formed.

Section 65. ALTERATION OF TAX DITCH:--In the event that it becomes necessary to change any part of a Tax Ditch because of errors in the report of the Ditch Commissioners, the Ditch Managers shall, in the name of the Tax Ditch, forward a petition requesting corrections to the appropriate County Soil Conservation District and the procedure shall be the same as when a new Tax Ditch is formed, insofar as said procedure may be applicable. However, when all land owners affected consent to any such change of any part of a Tax Ditch, they shall enter into a written agreement authorizing such change. Said agreement shall be subject to the approval of the State Drainage Engineer who shall file the original in the Office of the Prothonotary of the proper County. One copy thereof shall be retained by the Tax Ditch and one copy thereof shall be forwarded immediately to the State Soil Conservation Commission. Whenever changes are made which affect the Tax Ditch assessment list, it shall be the duty of the Tax Ditch Managers to notify the County Assessors immediately of such changes.

Section 66. BRIDGES AND CULVERTS; WHEN CONSTRUCTED AND MAINTAINED BY PUBLIC:--If any public road crossed by any part of a Tax Ditch will be benefited so that the public ought to construct and maintain a bridge or culvert at said cross, the Board of Ditch Commissioners shall so state in their report and upon establishment of said Tax Ditch such bridges or culverts shall be constructed and maintained at the public charge from funds provided for that purpose.

Section 67. DITCHES NEAR HIGHWAYS:--It shall be the duty of the State Highway Department to maintain the highway drainage system insofar as is possible in such manner as to prevent silt from such system from obstructing any part of a Tax Ditch. In the event that silt does enter from the highway system and obstructs a Tax Ditch, it shall be the duty of the State Highway Department to remove the same within a reasonable time after being given notice of said obstruction by the Ditch Managers.

Section 68. DISSOLUTION OF TAX DITCH:--After a duly called meeting of the taxables at which a majority of all eligible votes have been cast in favor of dissolving a Tax Ditch, created under the provisions of this Act, the Ditch Managers shall prepare a petition requesting such dissolution to the Superior Court through the appropriate County Soil Conservation District. If said Tax Ditch shall have operated for at least ten years, and if said District is of the opinion that the dissolution of such Tax Ditch is in the public interest, it shall file the petition therefor, together with the recommendations of said District in the Office of the Prothonotary of the County in which the original Ditch Order was issued. After a petition for dissolution has been so filed, it shall be the duty of the Superior Court to issue an order dissolving said Tax Ditch; provided, however, that no such order of dissolution shall be issued unless and until all obligations of the Tax Ditch have been paid in full and all commitments of the Tax Ditch have been fulfilled.

Section 69. EXISTING DRAINAGE ORGANIZATIONS: --Any landowner or owners in an area drained by a drainage system previously established under any other law of this State at any time may petition for the establishment of a Tax Ditch under the provisions of this Act.

Section 70. DITCHES IN KENT COUNTY; TRANSFER BY STATE HIGHWAY DEPARTMENT TO TAX DITCH:--In the event that any landowners in Kent County establish a Tax Ditch under this Act, the State Highway Department is hereby authorized to and shall transfer to said Tax Ditch all its right, title and interest in and to any existing ditch or ditches, within the boundaries of the new Tax Ditch, which may have previously been transferred to said Department under the provisions of Section 28 of Chapter 105, Revised Code of Delaware, 1935, and said Department is also hereby authorized to and shall delegate to the new Tax Ditch all its powers and duties in connection with said existing ditch or ditches.

Section 71. NAME OF TAX DITCH:--The name of any Tax Ditch established under this Act shall not be the same as the name of any existing drainage organization within the same County.

Section 72. INCONSISTENCY WITH OTHER ACTS:--Insofar as the provisions of this Act are inconsistent with the provisions of any other law, the provisions of this Act shall be controlling.

Section 73. SEPARABILITY CLAUSE:--If any provision of this Act, or the application of any provision to any person or circumstance, is held invalid, the remainder of the Act, and the application of such provision to other persons or circumstances, shall not be affected thereby.

Section 74. APPROPRIATION:--There is hereby appropriated to the State Soil Conservation Commission the sum of Ten Thousand Dollars ($10,000.00) annually which for the biennium beginning July 1, 1951 and ending June 30, 1953, is hereby appropriated out of any moneys of the State Treasury not otherwise appropriated and which appropriation shall be included in the Budget Approriation Bill beginning with the 117th Session of the General Assembly and for each biennial session thereafter.

Section 75. EFFECT OF THIS ACT ON ARTICLE 1, CHAPTER 105 OF REVISED CODE OF DELAWARE, 1935:--After the effective date of this Act no drainage organization shall be established under the provisions of Article 1, Chapter 105 of the Revised Code of Delaware, 1935. Said Article and Chapter shall remain in effect, however, and shall apply to drainage organizations established thereunder prior to the effective date of this Act, unless said existing drainage organizations reform under the provisions of this Act.

Section 76. EFFECTIVE DATE:--This Act shall take effect on June 1, 1951.

Approved June 1, 1951.