Boone v. District Court of Third Judicial District

• Decision Date: 06 March 1924
• Citation: 38 Idaho 688,224 P. 429
• Parties: LAFE BOONE, C. A. GROVES and O. G. F. MARKHUS. Commissioners of Drainage District No. 3, of the County of Ada, Plaintiffs, v. THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT, IN AND FOR THE COUNTY OF ADA, and RAYMOND L. GIVENS, Presiding Judge, Defendants
• Court: Idaho Supreme Court

224 P. 429

38 Idaho 688

LAFE BOONE, C. A. GROVES and O. G. F. MARKHUS. Commissioners of Drainage District No. 3, of the County of Ada, Plaintiffs, v. THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT, IN AND FOR THE COUNTY OF ADA, and RAYMOND L. GIVENS, Presiding Judge, Defendants

Supreme Court of Idaho

March 6, 1924

MANDAMUS-DISTRICT COURT-JURISDICTION-DRAINS-DRAINAGE DISTRICTS-DRAINAGE COMMISSIONERS-HEARING ON CONFIRMATION OF REPORT-NOTICE-SUFFICIENCY OF.

1. When a court refuses to hear and determine a cause upon the erroneous belief that it does not possess the requisite jurisdiction, mandamus will issue to compel the court to proceed.

2. A notice of the hearing on confirmation of the report of drainage commissioners, addressed to the owners of land within the boundaries of the district established under C S., sec. 4498, is insufficient notice to owners of land not included within the boundaries of such district.

3. The phrase, "The land owners and any and all persons or corporations owning or interested in lands," does not include "all parties interested" in the hearing on confirmation of the report of the commissioners of a drainage district.

4. A notice of hearing on confirmation of the report of drainage commissioners, addressed to all land owners and any and all persons or corporations owning or interested in lands, is not a sufficient notice to all parties interested.

5. The notice of the hearing on confirmation of the report of drainage commissioners must be given substantially in the manner and form prescribed by statute before the district court will have jurisdiction to hear and determine the matters presented by the report of the commissioners.

6. The legislature has required that notice be given to all parties interested, and the pertinent inquiry is concerning the sufficiency of the notice that was given, not as tested by any constitutional requirement, but as tested by the statute.

Original proceeding for mandamus. Peremptory writ denied.

Demurrer sustained. Peremptory writ denied.

P. E Cavaney, for Plaintiffs.

A failure to properly notify some of the land owners will not vitiate the proceedings as to those notified. ( Pittsburgh C. C. & St. L. Ry. v. Machler, 158 Ind. 159, 63 N.E. 210; Poundstone v. Baldwin, 145 Ind. 139, 44 N.E. 191; Grimes v. Coe, 102 Ind. 406, 1 N.E. 735; Goeppinger v. Boards of Suprs., 172 Iowa 30, 152 N.W. 58; Ross v. Board of Suprs., 128 Iowa 427, 104 N.W. 506, 1 L. R. A., N. S., 431.)

Notice to "all persons," or to "all persons interested," means all persons interested in lands within the drainage district. (McCabe v. Grey, 20 Cal. 509; Barry v. Baker (Ky.), 93 S.W. 1061; Northern P. Ry. Co. v. Douglas Co., 145 Wis. 288, 130 N.W. 246; Santa Fe Drainage Dist. v. Waeltz, 41 Ill.App. 575.)

It is the rule of law in this state that all statutes must be liberally construed, with a view of accomplishing their aims and purposes. (Parsons v. Wrble, 21 Idaho 695, 123 P. 638; C. S., sec. 4555.)

J. B. Eldridge, for Defendants.

The notice should be addressed to all persons interested and not limited to a particular class restricted within a limited and particular area. (C. S., sec. 4511; Maxwell v. Terrell (Ida.), 220 P. 411.)

The petitioners have a remedy other than mandamus. ( Blackwell Lumber Co. v. Flynn, 27 Idaho 632, 150 P. 42; Paxton v. Olden, 27 Idaho 597, 150 P. 40; State v. District Court of Ramsey County, 26 Minn. 223, 37 Am. Rep. 399, 2 N.W. 698; Connolly v. Wood, 13 Idaho 591, 92 P. 573.)

The statute as to notice must be followed, regardless of whether or not notice was otherwise given or acquired. This is the universal rule. (Strode v. Strode, 6 Idaho 67, 96 Am. St. 249, 52 P. 161; Alexander v. Leland, 1 Idaho 425; Rayl v. Kirby, 180 Ind. 553, 103 N.E. 440.)

WM. E. LEE, J. McCarthy, C. J., and William A. Lee, J., concur.

OPINION

WM. E. LEE, J.

--This is a mandamus proceeding brought by plaintiffs, the commissioners of Drainage District No. 3, of Ada county, against defendant, one of the judges of the district court of the third judicial district, to require him to proceed with the hearing of the report of the commissioners and the confirmation thereof. This court issued an order to defendant to show cause why he should not be required to proceed with the hearing of the report. Counsel for Mrs. R. H. Lilly, one of the remonstrants in the district court, who defends the action of that court in sustaining the motion to dismiss the drainage proceeding, has moved to quash the alternative order and has interposed a demurrer. The facts are stipulated.

It appears that on June 10, 1922, a petition for the organization of the drainage district was filed in the office of the clerk of the district court for Ada county; that thereafter a time for hearing the petition was fixed and a notice thereof published; that thereafter certain objections were filed to the formation of the district, and were heard and overruled; that on March 2, 1923, the court made findings and entered a decree declaring the district organized; and that thereupon plaintiffs herein were appointed commissioners of the district. On October 6, 1923, the commissioners filed their report, and the court fixed a time for hearing the report of the commissioners and directed that notice be given. (C. S., sec. 4510.) Notice was given, and at the time fixed for hearing the report of the commissioners, certain persons appeared and objected to the confirmation of the report. Finally, Mrs. R. H. Lilly appeared specially, and moved to quash and set aside the notice on the ground that the same was insufficient to give the court jurisdiction of the proceeding. The motion was sustained, and the court, believing the notice insufficient and that it lacked jurisdiction, refused, upon demand of plaintiffs, to proceed further.

It is contended that mandamus is not the proper remedy, and that this court's action in directing the district court to proceed with the hearing of the report of the commissioners would amount to an attempt to control the discretion vested in the district court, and would be equivalent to not only directing the district court to act, but also specifying the manner in which it should act. Hill v. Morgan, 9 Idaho 718, 76 P. 323, determines this question against the contention of defendant. In that case, this court cited, with approval, Merrill on Mandamus, as follows:

Section 36: "When the tribunal or officer whose duty it is to take jurisdiction of a matter, believing, erroneously, that it has no jurisdiction, declines to consider the matter, a mandamus will issue to compel such a hearing." Section 203: "Mandamus lies to compel a court to try a cause, when it refuses to do so upon the erroneous decision that it has no jurisdiction."

See, also: Connolly v. Woods, 13 Idaho 591, 92 P. 573; In re Grossmayer, 177 U.S. 48, 44 L.Ed. 665, 20 S.Ct. 535; Golden Gate Tile Co. v. Superior Court, 159 Cal. 474, 114 P. 978; State v. Moulton, 57 Mont. 414, 189 P. 59; Roberts v. Second Judicial District Court, 43 Nev. 332, 185 P. 1067; State v. Seehorn, 283 Mo. 508, 223 S.W. 664.

The decision of a court that it will not hear and determine a cause upon the mistaken assumption that it does not possess the requisite jurisdiction is equivalent to a refusal to exercise its jurisdiction, and mandamus will issue to compel such court to assume jurisdiction of the cause. The motion to quash is denied.

It appears that the petition for the establishment of the drainage district originally embraced certain definite territory, and the proposition presented by the petition was approved by the court. By its findings and by its decree, the court established said Drainage District No. 3, and, under C. S., sec. 4498, such findings had the effect of a lis pendens. The commissioners, however, are not confined to the plan of drainage originally outlined in the petition, and they may recommend a change in the plan of the route of the ditches and drains. (C. S., sec. 4508.) If the commissioners find that the proposed district will not embrace all the lands that will be benefited, they may extend the boundaries of the proposed district in their report so as to include such additional lands, but the temporary boundaries, as fixed by the findings and decree provided for in C. S., secs. 4498 and 4499, can only be altered by the court. (C. S., sec. 4509.)

Subsequently to the making and entering of the findings and decree establishing the proposed district, the commissioners changed the plan of drainage and enlarged the territorial boundaries of the proposed district so that the district, as described in the report of the commissioners under consideration at the time the court concluded that it lacked jurisdiction to proceed, contained about a section of land in addition to that contained in the original district. The notice was directed "to the land owners and . . . . persons or corporations owning or interested in lands . . . . within the boundaries of Drainage District No. 3 . . . . " Persons and corporations owning or interested in the additional section of land sought to be brought into the district by the confirmation of the report would not be affected by the notice, since the notice directed and limited attention to those owning and interested in lands embraced within the original district.

The notice contains the title of the court and the proceeding and is directed "To the land...