County of Dodge v. Acom

• Decision Date: 20 February 1901
• Docket Number: 11,707
• Citation: 85 N.W. 292,61 Neb. 376
• Parties: COUNTY OF DODGE ET AL. v. THOMAS R. ACOM ET AL. [*]
• Court: Nebraska Supreme Court

85 N.W. 292

61 Neb. 376

COUNTY OF DODGE ET AL. v. THOMAS R. ACOM ET AL. ^[*]

No. 11,707

Supreme Court of Nebraska

February 20, 1901

ERROR from the district court for Dodge county. Tried below before GRIMISON, J. Reversed.

Judgment of the district court reversed and vacated.

Grant G. Martin, Clark C. McNish, Frank Dolezal and Robert J Stinson, for plaintiffs in error.

E. F Gray and George L. Loomis, contra.

OPINION

HOLCOMB, J.

Under the provisions of article 1, chapter 89, Compiled Statutes, 1899, an act to provide for draining marsh or swamp lands, proceedings were instituted before the county board of Dodge county for the purpose of securing the establishment and construction of a drainage ditch in that county. After the presentation of a petition for the purpose mentioned action was taken resulting in the establishment and construction of the ditch prayed for, and the levying of special assessments upon many different tracts of land adjacent to the proposed ditch for special benefits received by reason of such construction. From the order finding that the various properties were benefited by reason of the improvement, and levying a special tax therefor, ninety-eight different owners of such properties, by error proceeding, obtained a review of the action of the county board in the district court, which, upon a hearing, resulted in annulling, reversing and vacating the order of the county board levying the special assessment, and holding such proceedings to be null and void. The grounds upon which the trial court reached the conclusion announced in its judgment are not made clear from the record, the findings being only of a general character and to the effect "that there is error in said proceedings and final order or judgment of said board, and in said subsequent proceedings and orders of said board, and that said proceedings and final order of judgment of said board complained of in said petition in error are erroneous and void and should be vacated." And thereupon it was adjudged "that said proceedings * * * be and hereby are reversed, set aside, vacated and declared and adjudged to be void so far as the same in any manner affects the plaintiffs in error herein, and that the special tax assessed and levied by said board by its order entered on its journal under date of November 3, 1899, assessing the lands of each of the plaintiffs in error herein, to which their petition in error relates, for the cost and expense of the location and construction of the ditch mentioned in said petition and transcripts, known as the 'Central Cut Off Ditch,' and the entry of such tax upon the tax lists of said county in pursuance of said orders, be and hereby are vacated and set aside, and declared and adjudged to be void." From the judgment of reversal the case is upon error brought to this court for its consideration. Many questions are presented and argued by counsel upon both sides, directed to the validity and regularity, or want thereof, of the proceedings had before the county board relating to the judgment or order of which complaint is made. It is perhaps well enough that we should consider the different questions presented and necessary to a proper disposition of the case in what appears to us the logical order of their presentation, rather than to follow the briefs of counsel upon either side.

At the outset it is proper to apply the principle heretofore adopted by this court, and which obtains quite generally, to the effect that jurisdiction having been once acquired by the county board in regard to and over the matters under consideration, any mere irregularity or want of exact compliance with all of the statutory provisions will be deemed insufficient to render void the whole proceedings by or under which the special taxes objected to were levied. Darst v. Griffin, 31 Neb. 668, 48 N.W. 819. The jurisdictional steps required to be observed under different decisions of this court are declared to be, first, a petition signed by one or more owners of land to be affected by the proposed ditch; second, a proper bond for costs, as provided by statute, to be approved by the clerk; third, a finding by the board on actual view that the proposed improvement is necessary and will be conducive to the health, convenience or welfare of the public; fourth, that the proposed ditch is the best route for the contemplated improvement; and fifth, that notice, as provided by statute, to persons on whose land the cost is to be apportioned and the owners whose lands are to be taken or damaged shall be given. County of Dakota v. Cheney, 22 Neb. 437, 35 N.W. 211; State v. Colfax County, 51 Neb. 28. An observance of the different jurisdictional steps required by statute will give to the board jurisdiction to act regarding the subject matter, and when jurisdiction has attached, the further proceedings, and the establishment, construction and completion of the proposed improvement, can be regarded as voidable only, and not void, even though irregularity is shown. By section 28 of said chapter 89 it is provided that "the collection of assessments to be levied to pay for the location or construction of any ditch shall not be enjoined nor declared void; nor shall said assessment be set aside in consequence of any error or irregularity committed or appearing in any of the proceedings provided by this act," etc. These provisions, while not applying to void assessments, must be given the force and effect fairly justified by the language used, when applied to errors, irregularities or non compliance with the strict letter of every provision of the statute, not going to the question of the jurisdiction of the board regarding the matter upon which they are acting. Morris v. Merrell, 44 Neb. 423, 62 N.W. 865.

In the light of the observations just made, we now proceed to a consideration of the objections urged against the validity of the action of the county board in making the assessment complained of. A petition signed by several owners of lands to be benefited by the proposed ditch was filed with the county clerk, praying the county board to cause, in the manner provided by law, to be located, constructed and established, a ditch or drain on the following described lands in Dodge county, Nebraska, to-wit, "commencing at the 1/4 corner on the north of section 19 (township 18, range 6 east, and running southeast [describing the sections through which it proceeded], and terminating in the Platte river about forty rods east of the west line of section 17, township 17, range 7 E. The final location shall be made by a competent engineer and may vary a little from a straight line to avoid improvements and take advantage of the ground, but not more than 160 rods from said straight line at any point in the route. Said ditch to be of such dimensions and with such slope of bank as may be designated by the engineer who may make the survey for said ditch," it being represented that it would be conducive to the public health, convenience and welfare to have said ditch and drain established as therein proposed, that the lands to be affected by said ditch or drain were low, wet and unfit for cultivation on account of the want of ditch and drainage facilities. Acting on this petition, the county board, by motion, proceeded to view the line of the proposed improvement, and after actual view, and after reciting the prior action taken, determined and found with respect thereto as follows: "We find that said petition is signed by one or more of the owners of lots and lands which will be benefited by the construction of said proposed ditch and drain; and whereas, we find that a good and sufficient bond has been filed and approved by the county clerk, as by law provided; and whereas, we find from actual view of the line and route of said proposed ditch and drain, as prayed for, and the premises along and in the vicinity thereof, that said ditch and drain as prayed for in said petition is a necessary improvement, and that the construction of the same will be conducive to the public health, convenience and welfare, and that the line proposed and designated in said petition is the best route for said ditch and drain; Therefore be it resolved, that this report and resolution be adopted, and that the clerk be and is hereby ordered to enter the same on the journal of this board." After the action recited had been taken by proper order, one J. W. Andrews, a civil engineer, was directed to go upon the line, survey and level the same, set a stake every 100 feet, note the intersections and make a report, profile and plat of the same. Upon this report it appears that a variation of the route described in the petition was made by constructing the ditch from the starting point due south 140 rods, and then in a straight line to the terminus mentioned in the petition.

It is urged that the action of the board as to the location and establishment of the ditch was not a sufficient compliance with the statute. We think differently. Counsel argue upon the theory that every act necessary to the establishment and construction of the ditch must be taken by the board, and none other, and that no authority existed for the engineer to make the exact and final location and provide for the dimensions thereof. To follow this contention to its logical conclusion would lead to the result that the board must itself construct as well as establish the ditch, and that no authority existed for others to perform the necessary work to accomplish that end. The line was located with sufficient certainty when the board approved and adopted the route as defined in the petition, and the variation of the engineer from that route was not so great that it can be said that another route had been decided upon; and...