Argyle v. Johnson

• Decision Date: 26 September 1911
• Docket Number: 2244
• Court: Utah Supreme Court
• Parties: ARGYLE et al. v. JOHNSON, County Treasurer

118 P. 487

39 Utah 500

ARGYLE et al. v. JOHNSON, County Treasurer

No. 2244

Supreme Court of Utah

September 26, 1911

APPEAL from District Court, Fourth District; Hon. J. E. Booth Judge.

Action by Benjamin Argyle and others against Mont Johnson, County Treasurer.

Judgment for plaintiffs. Defendant appeals.

AFFIRMED.

Jacob Evans and Elias Hanson for appellant.

A. B Morgan for respondents.

FRICK C. J. McCARTY, J., STRAUP, J., concurring.

OPINION

FRICK, C. J.

This is an appeal from a final judgment perpetually enjoining the collection of a certain drainage tax.

It is not clear upon what ground the district judge based his decision. From what is disclosed by the record, however, it seems that the injunction was granted upon the ground that the law under which the tax was imposed is void, because it authorizes the taking of property without due process of law.

The judgment was granted upon the pleadings, and it is contended here that the judgment must be sustained, because the answer of appellant presented no defense. This contention is untenable, since both the denials, as well as the affirmative averments, contained in the answer presented issues of fact which could not have been determined on a motion for judgment on the pleadings; and if the law under which the tax was imposed is valid the judgment cannot stand. We shall therefore treat the motion for judgment as a demurrer to the answer, and by that method determine the validity of the law which is assailed.

The law in its present form was adopted in 1907, and constitutes sections 760 to 779, inclusive, of the Compiled Laws of Utah 1907. The text of the act in question, so far as material here, is as follows:

"Sec. 760. Whenever any number of persons constituting a majority, of the holders of title, and who hold title to a major part of the land to be included in the proposed district susceptible of one mode of drainage from a common source and by the same system of works, desire to provide for the drainage of the same, they may propose the organization of a drainage district under the provisions of this act, provided the provisions of this act shall not apply to the drainage of mines.

"Sec. 761. A petition shall first be presented to the board of county commissioners of the county in which the lands, or the greater portion thereof, are situated, signed by the required number of holders of title, or of evidence of title, and shall set forth and particularly describe the boundaries of the proposed district, and shall pray that the same may be organized under the provisions of this title. The petition shall be presented at a regular meeting of the board of county commissioners and, for at least two weeks before the time at which the same is to be presented, shall be posted in three or more public places in the district or published in some newspaper published or having a general circulation in the county, together with a notice stating the time at which the same will be presented. If any portion of the proposed district shall lie within another county or counties, then the petition and notices shall, as above provided, be posted or published in a newspaper, published or having a general circulation in each of such counties.

"Sec. 762. When the petition is presented, the board of county commissioners shall hear it, and may adjourn the hearing from time to time, not exceeding four weeks in all. On the final hearing any person whose lands are susceptible of drainage by the proposed system, and who expresses in writing a desire to be included within the system, may upon application to the board and in its discretion, have his lands included in the district. On the final hearing the board shall by resolution establish and define the boundaries of the district as proposed in the petition or as amended as hereinbefore provided, fix the number of trustees, which shall not be less than three nor more than five and who shall be residents of the district, and provide for the election of such trustees and the organization of said district as hereinafter provided.

"Sec. 763. The board shall then give notice of an election, for the purpose of determining whether or not the proposed district shall be organized. The notice shall describe the boundaries established, and shall designate a name for the district. It shall be posted or published, as prescribed in the case of a petition, and shall state the time and place of the election and that ballots shall be cast containing the words 'Drainage District yes,' or 'Drainage District no,' and the names of persons to be voted for as trustees. No person shall be entitled to vote at any election held under the provisions of this act, unless he shall be a qualified elector in the district. The board of county commissioners shall appoint the judges for the first election."

Section 764 in substance provides that the county commissioners shall canvass the votes cast at the election provided for in the preceding section, and if two-thirds of all the votes cast thereat shall be in favor of organizing a drainage district then the commissioners shall enter an order on their minutes declaring the district organized, and shall also declare the persons receiving the highest number of votes elected as trustees of such district; and the section further provides that "no action shall be commenced nor maintained, nor defense made, affecting the validity of the organization, unless commenced or made within one year after the entering of" the order declaring the district organized.

Section 265 provides that subsequent elections shall be held biennially; and section 266 is to the effect that the trustees shall hold office for two years, and also provides for their qualification by taking an oath and by giving official bonds.

Section 767 is as follows:

"Sec. 767. Within thirty days after their election and qualification, the trustees shall meet and organize as a board, and shall elect a president, a secretary, and a treasurer, from among their own number. Each of such officers shall hold office during the pleasure of the board. The board of trustees shall have power to adopt a code of by-laws governing the conduct of the business and affairs of the district as a corporation in connection with its association with individuals in and outside of the district and regulating the use of its drainage system by outsiders. It shall also have power to make and execute all necessary contracts, to employ and appoint such agents, officers and employees as may be required, prescribe their duties and generally to perform all such acts as shall be necessary to fully carry out the purposes of this title. The board and its agents and employees shall likewise have the right to enter upon any lands to make surveys and may locate the necessary drainage works and the line for any drainage canal or canals, and the necessary branches for the same on any lands which may be deemed best for such location. It shall have the right also to acquire on behalf of said district by purchase or condemnation or other legal means, all lands and other property necessary for the construction, use, maintenance, repair, and improving of said canal or canals, drains, and works constructed (including canals, drains, or drain ditches being constructed by private owners), and all necessary appurtenances. In case of necessity for condemnation proceedings the board shall proceed in the corporate name of the district, under the provisions of the laws relating to eminent domain."

Sections 768 to 771 prescribe the duties of the officers, and provide for meetings of the board of trustees and the records to be kept by them.

"Sec. 772. Whenever the board of trustees deems it expedient it shall have power for the purpose of constructing drains, drainage canals and other required improvements, to issue bonds of the district to run not more than twenty years and to bear interest, pay semiannually at a rate not exceeding six per cent. per annum, to be called 'Drainage District Bonds,' and which bonds shall not be sold for less than their par value, and the proceeds of which shall be used for no other purpose than paying the cost of construction of such drain, drainage canal or other like work: Provided, that the aggregate amount of such bonds issued and outstanding may equal but never exceed in amount four per cent. of the value of the taxable property of any such district. The said board of trustees shall by resolution provide for the issuance and disposal of such bonds and for the payment of interest thereon the creation of a sinking fund for the ultimate redemption thereof and for the date and manner of the redemption of said bonds.

Sec. 773. Whenever any such drainage district bonds shall be issued in accordance with the provisions of this chapter, such bonds shall constitute a lien upon all of the lands and improvements thereon within the boundaries of the district, and the board of trustees of said district shall from time to time as hereinafter provided levy a sufficient tax to pay the annual interest charge on such bonds, and in addition thereto such an amount as a sinking fund, which shall, in the course of events and ultimately, amount to a sufficient sum to redeem said bonds.

Sec 774. The board of trustees shall on or before the first day of February of each year prepare a statement and estimate of the amount of money to be raised by taxation within said district for the purpose of constructing canals, drains, drain ditches and other works, and maintain the same; pay the interest upon the bonded indebtedness of the district; creating a sinking fund for redeeming such bonds; and for the purpose of maintaining and repairing drainage canals, flumes, conduits,...