Dodge Cnty. v. Acom

• Decision Date: 20 February 1901
• Citation: 61 Neb. 376,85 N.W. 292
• Parties: DODGE COUNTY ET AL. v. ACOM ET AL.
• Court: Nebraska Supreme Court

61 Neb. 376

85 N.W. 292

DODGE COUNTY ET AL.

v.ACOM ET AL.

Supreme Court of Nebraska.

Feb. 20, 1901.

Syllabus by the Court.

1. Where, in proceedings under the provisions of article 1, c. 89, Comp. St. 1899, for the establishment of a drainage ditch, a county board acquires jurisdiction over the subject-matter 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 taken regarding such matters.

2. In establishing a drainage ditch, and levying special assessments for benefits received, the jurisdictional steps required to be observed are--First, a petition signed by one or more owners of land to be affected by the proposed ditch; second, a proper bond, as provided by statute, for costs, 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 to persons on whose lands the cost is to be apportioned, and the owners whose lands are to be taken or damaged, shall have been given, as provided by statute.

3. The provisions of Comp. St. 1899, c. 89, art. 1, § 28, to the effect that assessments shall not be set aside in consequence of any error or irregularity committed or appearing in any of the proceedings, must be given the force and effect fairly justified by the language used when applied to errors, irregularities, or noncompliance with the strict letter of every provision of the statute not going to the question of jurisdiction.

4. Where an engineer is appointed by the board, after it has found the route designated to be the best, the improvement necessary, and conducive to the public health, convenience, and welfare, who goes upon the line of the ditch petitioned for, makes a final survey, sets grade stakes, notes intersections, and makes a profile and plat, fixes the dimensions and slopes of the banks, etc., and his report is confirmed by the board, the action taken will be deemed to be that of the board and in compliance with the statute. The fact that the line as finally established varies from that described in the petition, but for a less distance than is allowed by the petition and by statute, does not affect the validity of such proceedings.

5. A petition which describes with certainty the point of beginning of a drainage ditch, and the direction in which the same is to run, giving the sections through which it passes, and the place where terminating, and providing that the line may vary from a straight line to avoid improvements and take advantage of the ground, but not more than 160 rods, is a sufficient compliance with the provisions of the statute to give the board jurisdiction to act in respect of the same.

6. Where the record shows that a county board adjourned its sitting at the court house, and went in a body to view the proposed ditch, and that they made such view, and afterwards resumed their sitting, such act is a compliance with the statute, and the view made will be regarded as the act of the board, and not of individuals.

7. Where the engineer divided the proposed ditch into working stations, and showed in each the distance and number of cubic feet to be removed, together with the cost of removal, at the estimate upon which the total cost is arrived at, this, with the report of the assessment to be levied on each parcel or tract of land for special benefits, imparts all the information that would be necessary in case of an apportionment of the number of lineal feet and cubic yards to each lot or tract of land according to the benefits which will result to each from the improvement, and is a sufficient compliance with the provisions of the statute in that respect.

8. An irregularity in not apportioning and reporting the number of lineal feet and cubic yards to each lot or tract of land according to benefits, held harmless error, since the parties complaining made no effort to bid on the work of construction.

9. In determining special benefits accruing to land by reason of the construction of a drainage ditch, it is proper to take into consideration whatever will come to the land from the drain to make it more valuable for tillage, or more desirable as a place of residence, or more valuable in the general market; the true and final test being, what will be the influence of the proposed improvement on the market value of the property?

10. Evidence examined, and held to support the finding and order of the county board levying special assessments for benefits received by reason of the construction of a drainage ditch.

11. Where a county board has acquired jurisdiction to act, the presumption is in favor of the correctness and regularity of the proceedings taken, and its action should not be overturned except when it is made to affirmatively appear that the action taken is erroneous.

12. The findings of the county board as to the necessity of a proposed drainage ditch, and that the public health, convenience, or welfare will be promoted thereby, cannot thereafter be made the subject of a controversy as to whether correct and well founded or not. It is the exercise of a delegated power, political or administrative in character, and not judicial, conferred upon the county board by the sovereign authority of the state, acting through its legislative branch of government.

13. The provisions of section 6, art. 9, of the constitution, that “the legislature may vest the corporate authority of cities, towns, and villages with power to make local improvements by special assessments or by special taxation of the property benefited,” do not prohibit the legislature from conferring the power to make local improvements by special assessments or taxation of property benefited upon counties. Darst v. Griffin, 48 N. W. 819, 31 Neb. 668, followed.

14. The provisions of the statute under consideration held not to be violative of any of the provisions of sections 3, 13, 21, and 24 of article 1 of the constitution.

Error to district court, Dodge county; Grimison, Judge.

Action by Thomas R. Acom and others against the county of Dodge and others. Judgment for plaintiffs. Defendants bring error. Reversed.

Grant G. Martin, C. C. McNish, and Frank Dolezal, for plaintiffs in error.

E. F. Gray and Geo. L. Loomis, for defendants in error.

HOLCOMB, J.

Under the provisions of article 1, c. 89, Comp. St. 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, 98 different owners of such properties, by error proceedings, 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 petitionin 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 affect 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 herein, to which the petition in error relates, for the cost and expense of the location and constructing 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...