Fetzer v. Johnson

• Decision Date: 31 March 1925
• Citation: 4 F.2d 865
• Parties: FETZER v. JOHNSON et al.
• Court: U.S. District Court — Eastern District of Oklahoma

4 F.2d 865 (1925)

FETZER v. JOHNSON et al.

District Court, E. D. Oklahoma.

March, 1925.

J. B. Furry, of Muskogee, Okl., and Stevens & Herndon, of Springfield, Ill., for plaintiff.

J. B. Dudley, of Oklahoma City, Okl., and Alger Melton, of Chickasha, Okl., for defendants.

KENNAMER, District Judge.

William Fetzer, a citizen of Chicago, Ill., sought to restrain E. B. Johnson and other residents of the state of Oklahoma from enforcing or taking advantage of a judgment and decree of the Supreme Court of the state of Oklahoma entered in the suit of Mulligan v. Johnson, reported in 77 Okl. 68, 186 P. 242, and further attempted to compel the county treasurer of Grady county, Okl., to proceed to perform his legal duties in the matter of the collection of the special assessment in question, in order that the complainant could secure payment of the amount due upon bonds issued by the improvement district where certain drainage improvements were made.

The facts in this case are the same as those before the Oklahoma courts in the case reported in 77 Okl. 68, 186 P. 242. Briefly, the county commissioners sought to create a drainage district upon the filing of a petition signed by some of the property owners in the district to be created. There was a failure to describe all the property in the contemplated district, and the requisite percentage of property owners in the district to be created did not sign the petition. It is insisted that upon a construction of a number of sections of the Oklahoma statute pertaining to the creation of improvement districts, and upon consideration of them together, there is to be found a compliance with the statutory requirements.

Complainant, William Fetzer, became the owner of the bonds issued by the county to pay for the improvement in the drainage district prior to a construction of the statute pertaining to the creation of special improvement districts by the Oklahoma courts, and, this court having jurisdiction by virtue of the diversity of citizenship of the parties, it is not only its right, but its duty, in construing the statute, to exercise an independent judgment. Folsom v. Township 96, 159 U. S. 611, 16 S. Ct. 174, 40 L. Ed. 278; Carroll County v. Smith, 111 U. S. 556, 4 S. Ct. 539, 28 L. Ed. 517; Burgess v. Seligman, 107 U. S. 20, 2 S. Ct. 10, 27 L. Ed. 359; Thompson v. Perrine, 103 U. S. 817, 26 L. Ed. 612; Pine Grove Township v. Talcott, 19 Wall. 666, 22 L. Ed. 227.

It is undisputed that the proceedings for the creation of the drainage district in question were based upon section 3046, Comp. Laws Okl. 1909, which in part provides:

"Before the commissioners shall establish any drain or improvement district authorized by this act, there shall be filed with the county clerk of such county a petition signed either by fifteen per centum of the owners, or by the resident owners of fifteen per centum of the aggregate acres of land to be benefited or affected by such drain or improvement and to be assessed for construction, thereof setting forth the necessity therefor, with the general description of the proposed drain or other improvements, the starting point, route, and terminus thereof and whether or not it is desired to issue bonds and other evidence of indebtedness to meet the expenses of such improvements."

It is quite obvious that the initial step in the organization of a drainage district is the filing of the statutory petition signed by 15 per centum of the owners, or by the resident owners of 15 per centum of the aggregate acres of land to be included within the...