Davis v. Board of Com'rs of Lincoln County
| Decision Date | 11 March 1913 |
| Parties | DAVIS ET AL. v. BOARD OF COM'RS OF LINCOLN COUNTY ET AL. |
| Court | Oklahoma Supreme Court |
On Rehearing, December 9, 1913.
Syllabus by the Court.
Where the commissioners of a drainage district have, by pursuing the provisions of the Drainage Act (chapter 32, §§ 3043-3077, Comp. Laws 1909), acquired jurisdiction to make assessments against property in the district for benefits, and the property owners have been given notice of a hearing on said assessments, as provided by statute, and have had an opportunity to be heard upon their objections thereto, such property owners cannot be heard to say in a proceeding for injunction that the assessments levied by the commissioners are greater than the benefits received, or are not in proportion to those levied upon other property receiving corresponding benefits, because such property owners have, by reason of section 3050, Comp. Laws 1909, an adequate remedy by appeal.
The provision of section 3052, Comp. Laws 1909, which requires that the county clerk shall, upon the filing of the report of the viewers of a drainage district, issue a notice directed by name to the property owners of the district, informing them of the date of the hearing on the report of the viewers as to assessments of benefits and damages, and that the same shall be published for four weeks in some newspaper printed and of general circulation in the county, is mandatory; and where such notice is not given as provided by said statute the assessment of benefits and damages is void as to all property owners who do not appear at said hearing, or otherwise waive the issuance and publication of such notice.
The provisions of section 3047, Comp. Laws 1909, require that the viewers of any drainage district shall, before entering upon the discharge of their duties, take and subscribe to an oath to faithfully and impartially discharge their duties as such viewers, and to fairly and correctly make and return the report required by statute, is mandatory to the extent at least that, where the property owners for whose benefit the requirement of the statute is primarily made do nothing to waive such irregularity, failure of the viewers to take the oath renders their proceedings void.
Although the assessments for an improvement in a drainage district have been made and a cloud thereby created upon the title to the lands against which such assessments are made, the owners of such lands may maintain an action to enjoin the commissioners of the district from issuing bonds and contracting for the improvement and paying therefor, where the assessments made are void, and said further acts of the commissioners will further complicate the cloud upon the title to plaintiffs' property and result in the unlawful expenditure of public funds.
Additional Syllabus by Editorial Staff.
The notice of a hearing on the report of viewers in drainage district assessment proceedings was void, where it did not contain in appropriate columns a tabulated description of every lot or parcel of land to be affected by the proposed improvement, as required by Comp. Laws 1909, § 3052.
Error from District Court, Lincoln County; Chas. B. Wilson, Jr. Judge.
Action by George Davis and others against the Board of County Commissioners of Lincoln county and others. Judgment for defendants, and plaintiffs bring error. Reversed and remanded.
Where the assessments in a drainage district have been made and a cloud created upon the title to the lands, the landowners may enjoin the district commissioners from creating an indebtedness for the improvements where such assessments are void and the further act of the commissioners will further complicate the titles.
Plaintiffs in error were plaintiffs in the court below, and defendants in error, defendants. Plaintiffs allege in their petition that each of them is the owner of land in Deep Fork drainage district No. 1, in Lincoln county; and that the land of each of them has been assessed to pay for the construction and maintenance of a drainage ditch in Deep Fork Valley; that defendants, as commissioners of said district, have caused a survey to be made for the purpose of digging said ditch, and for the purpose of paying therefor have levied assessments upon the lands in said district, including, among others, the lands of plaintiffs. Plaintiffs charge that the assessment levied upon their lands is much in excess of any benefits which can possibly accrue thereto by the digging of the ditch; and that the amounts charged as benefits against their lands by defendants is much more than the value of their lands at the present time, and more than the value of their lands will be when said ditch is completed and in operation. By reason of these facts, it is charged that their lands are about to be confiscated and taken from them, without due process of law and in contravention of the fourteenth amendment to the federal Constitution. They further allege that in the drainage district are located certain school lands belonging to the state, against which defendants have made assessments for benefits; but that defendants, knowing that there is no provision of law by which such assessments could be collected, have assessed against the lands of plaintiffs and others in like condition increased charges sufficient to cover the amount of benefits charged against the school lands, which cannot be collected. They also allege that a large number of Indian allotments are situated in said district; and that defendants are without power or authority to levy any assessments against any of these Indian allotments or to collect anything from them for the benefits such lands will receive by the construction of the ditch; and that defendants have raised the amounts assessed against the lands of plaintiffs to cover the deficiency that will be caused because of their inability to collect from said Indian lands any charges for benefits. By reason of these facts, they allege that their lands are charged with more than their proportionate share of the benefits that will be received from a construction of the ditch, all in violation of the fourteenth amendment to the federal Constitution. Defendants are now undertaking to issue bonds and let a contract for the construction of the ditch, which plaintiffs allege will create a lien upon their property and create a cloud on the title to their lands; and that the acts of the defendants are not only void, because of the foregoing facts, but also because defendants have proceeded to act without notice to the plaintiffs of their intention to construct the ditch having been issued as required by law, and because no notice has ever been served upon the plaintiffs; and that the notice issued did not contain matters required by the statute to be contained therein, and has not been published for four weeks as required by law--by reason of which fact, they contend the burden of the benefits has been assessed against their lands without notice and opportunity to be heard on objections thereto. They also allege that the viewers appointed to assess said benefits proceeded to do so without taking and subscribing to the oath required by law of them before entering upon the discharge of their duties. Other irregularities in the procedure taken by the defendants are alleged, but a consideration of those already mentioned will be sufficient to dispose of the others.
This appeal is prosecuted from an order of the court sustaining a demurrer to plaintiffs' petition, and the sole questions presented for our consideration arise on the petition of plaintiffs and the demurrer of defendants.
Devereux & Hildreth, of Guthrie, for plaintiffs in error.
Grant Stanley, of Oklahoma City, for defendants in error.
HAYES, C.J. (after stating the facts as above).
The statutes controlling the questions this proceeding presents are to be found in chapter 32, Comp. Laws 1909. The board of county commissioners are invested with power at any regular meeting, when the same shall be conducive to public health or where it will be a public utility or benefit to agricultural interests or to the soil of the lands affected, to cause to be constructed, straightened, or widened any underground or tile ditch or drain, or natural stream of water within the county. Said commissioners are invested with exclusive jurisdiction to hear and determine all contests and objections to the creation of such district. Before any district shall be established, however, there must be filed with the clerk of the county a petition signed either by 15 per centum of the owners or by the resident owners of 15 per centum of the aggregate acres of land to be benefited or affected by the improvement and to be assessed for the construction thereof. Upon the filing of such a petition, the county commissioners are required to appoint three resident freeholders of the county, possessing certain qualifications named in the statute, who, assisted by the surveyor, shall proceed at once, under the direction and order of the commissioners, to view the line of the proposed drain or improvement and to report whether the proposed improvement is practical and necessary, and whether it is a private or public utility and benefit. After the report of the viewers is filed, the county clerk is required to fix by order of record the time for hearing the petition and report of the viewers, and cause notice to be given by publication for two weeks in some newspaper printed and of general circulation in the county of the pendency of the petition and of the date fixed for the hearing thereon. If upon its hearing the commissioners shall find that the proposed improvement is necessary or will be a public utility, they shall cause to be entered...
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