Chicago & Northwestern Railway Co. v. Sedgwick

• Decision Date: 07 April 1927
• Docket Number: 37168
• Citation: 213 N.W. 435,203 Iowa 726
• Parties: CHICAGO & NORTHWESTERN RAILWAY COMPANY, Appellee, v. W. L. SEDGWICK, County Treasurer, Appellant
• Court: Iowa Supreme Court

213 N.W. 435

203 Iowa 726

CHICAGO & NORTHWESTERN RAILWAY COMPANY, Appellee, v. W. L. SEDGWICK, County Treasurer, Appellant

No. 37168

Supreme Court of Iowa, Des Moines

April 7, 1927

Appeal from Woodbury District Court.--A. O. WAKEFIELD, Judge.

Action in equity, commenced by the plaintiff railway company, to enjoin the county treasurer of Woodbury County, Iowa, from collecting a certain assessment claimed against the plaintiff by reason of the establishment of the Maple River Drainage District No. 1, in Woodbury County, and for the cancellation of the said assessment. The trial court entered a judgment and decree in favor of the plaintiff, granting the relief prayed. The defendant appeals.

Affirmed.

Kindig McGill, Stewart & Hatfield, for appellant.

Jepson Struble, Anderson & Sifford and Davis, McLaughlin & Hise, for appellee.

DE GRAFF, C. J. STEVENS, FAVILLE, and ALBERT, JJ., concur. EVANS, C. J., and VERMILION and MORLING, JJ., dissent.

OPINION

DE GRAFF, C. J.

This appeal is from a decree granting the plaintiff, as a landowner in a drainage district, its prayer for injunctive relief against an alleged void assessment. The action finds its origin in the establishment of the Maple River Drainage District No. 1 in Woodbury County, Iowa, and an attempted levy of an assessment against the right of way and property of the plaintiff railway company, which assessment, having been confirmed by the board of supervisors of said county and certified to the county treasurer and spread upon the tax list of said county, is now about to be collected.

The record facts are undisputed. Under the instant facts, did the voluntary and general appearance of the plaintiff railway company before the board of supervisors at the time appointed for the hearing on the confirmation of the assessments constitute a waiver of jurisdictional defects and preclude the company from an injunctional remedy to prevent the enforcement of the assessment, no appeal having been taken by the company from the action of the board in confirming the assessment, and the record showing indisputably that no valid legal service was had on the company or appearance entered by it relative to the establishment of the district, and that no valid legal service was had on the company as to the confirmation of the assessment of benefits? This question must be answered in the light of the objections of the plaintiff, when and where made.

It is apparent that the board of supervisors of Woodbury County had no jurisdiction of the railway company or its property in the instant matter in the initial step, and that its proceedings and acts in the establishment of the district with reference to the property of the railway company were void. The statute governing the service of notice in this matter (Section 1989-a3, Code Supplement, 1913, Section 7442, Code of 1924) is mandatory and jurisdictional. Minneapolis & St. L. R. Co. v. Board of Supervisors, 198 Iowa 1288, 201 N.W. 14; Chicago & N.W. R. Co. v. Sedgwick, 202 Iowa 33, 209 N.W. 456.

It is conclusively shown that prior to the commencement of the proceedings before the board of supervisors for the establishment of the drainage district in question, the plaintiff railway company had filed in the office of the county auditor of Woodbury County an instrument in writing in conformity to statute, designating H. L. Adams as its agent on whom service of notice should be made, and that said instrument and designation remained on file in said auditor's office during all the proceedings in said drainage district matters. No notice of the proposed establishment of the district was served, as required by statute, and, as the method prescribed is exclusive and jurisdictional, the plaintiff never entered the door of the first room.

There were but two ways whereby the plaintiff company could be brought into the drainage district: (1) By service of notice by registered mail at least twenty days before the hearing on establishment, as required by Section 1989-a3, Code Supplement, 1913, or (2) by the voluntary appearance of the railway company before the board in the establishment proceedings. Neither of these things was done. The drainage district in this case was legally established and valid as to all landowners legally served with notice. Ross v. Board of Supervisors, 128 Iowa 427. The establishment of the district by the board became conclusive upon all non-appearing parties served with legal notice thereof that the lands included received some benefit, and no landowner may thereafter assert that his land was not benefited. Thompson v. Board of Supervisors, 201 Iowa 1099, 206 N.W. 624.

The record further discloses that the board, by resolution, appointed a date certain, at which time objections to the classification and assessments would be considered by the board, and fixed a time when such objections could be filed in writing with the county auditor. No notice of this matter was served upon the designated agent of the plaintiff railway company, but it is shown that said company did, within the proper time, file written objections to the proposed assessment against its property, and that these objections were considered by the board of supervisors and overruled. It is upon these objections that the defendant-appellant predicates the waiver, and alleges in the answer to the petition of plaintiff in this case that the plaintiff, having failed to take an appeal from the action of the board in this particular, cannot now collaterally attack said proceeding by way of injunction.

In Minneapolis & St. L. R. Co. v. Board of Supervisors, supra, it is said:

"Neither could a proper service of the notice of the fact of the levy of the assessment confer jurisdiction upon appellant with regard to the initial proceedings for the establishment of the drainage district."

We are, therefore, confronted with the question, Did the objections filed by the railway company at the time, as heretofore recited, constitute a waiver of the jurisdictional defects in the initial proceedings? We have repeatedly held that jurisdictional defects are not waived by a failure to appear and object to an assessment resolution. Equity will grant relief by injunction against an assessment void for want of jurisdiction. Bennett v. City of Emmetsburg, 138 Iowa 67, 85, 115 N.W. 582.

A waiver is the voluntary and intentional relinquishment of a known right, benefit, or advantage, and "'depends upon what one himself intends to do.'" Howe v. Sioux County, 180 Iowa 580, 163 N.W. 411, with cases cited.

The record in the instant case not only fails to show any intention on the part of the appellee railway company to waive or relinquish its constitutional and statutory right to notice and hearing in the initial proceedings relative to the questions of establishment, damages, wisdom of the project, and whether or not its property should be included in the drainage district, but shows affirmatively that said appellee did not intend to waive or relinquish such right, and the objections of the appellee do challenge the jurisdiction of the board because of its failure to comply with the statutory requirements relative to such establishment, damages, etc.

We are not to be understood that, under certain circumstances, a property owner in a case of this character might not be bound by waiver. In other words, the facts might disclose that the jurisdiction in the first instance was waived, and that he appeared for the purpose of protest, and made objections in other particulars.

"In other words, while there may be no waiver or estoppel where the law confers no jurisdiction of the subject-matter, yet, where such jurisdiction is given, mere omission or irregularity in some of the initial steps by which the proceedings are instituted, or in interlocutory matters pertaining to the conduct and development of the proceedings, may always be waived by the party entitled to object thereto, and, when that waiver once becomes effective, it cannot be withdrawn or its effect neutralized by any act on his part." Clifton Land Co. v. City of Des Moines, 144 Iowa 625, 123 N.W. 340.

However, "if the proceedings were such as to render the assessments absolutely void, then a court of equity has the power to enjoin the collection of such void assessment. Such have been our repeated holdings." Manning v. City of Ames, 192 Iowa 998, 184 N.W. 347, with cases cited.

It is said in Union Petroleum Co. v. Indian Petroleum Co., 192 Iowa 1373, 186 N.W. 439:

"The fact that no appeal was taken from the assessment made, is not fatal to the objections made by the receiver to the assessment. A void assessment is not subject to statutory provisions governing an appeal from a valid assessment."

Again:

"The power to assess and levy the tax depended upon the legality of what had been done. The ditch had really been constructed by acts of trespass, as the board could have seen, and probably did see. For the construction of such a ditch we do not think that the board had power to assess and levy the tax, and they should have refused to do so." Shepard v. Supervisors of Johnson County, 72 Iowa 258.

The rule is well established that the statutory conditions precedent to the order or the making of a public improvement must be strictly followed.

"As these are essential to the exercise of power by the city council, they are jurisdictional, without which all subsequent proceedings are invalid. " Davenport Locomotive Works v. City of Davenport, 185 Iowa 151, 155, 169 N.W. 106.

This doctrine runs through all our decisions.

"If the tax is void, as claimed by the plaintiffs, equity will grant relief." Chicago, M. & St. P. R. Co. v. Phillips, 111 Iowa 377, 380, 82 N.W. 787.

If the city council had no...