Field v. Drainage District No. 1 of County of Gem in State
| Citation | 46 Idaho 248,267 P. 443 |
| Decision Date | 05 May 1928 |
| Docket Number | 5220 |
| Parties | J. R. FIELD, Appellant, v. DRAINAGE DISTRICT No. 1 OF THE COUNTY OF GEM IN THE STATE OF IDAHO and J. W. TYLER, W. C. STONE and W. M. WILSON, as Commissioners of Said Drainage District, Respondents |
| Court | United States State Supreme Court of Idaho |
DRAINAGE DISTRICTS-FORMATION-EXTENSION-NOTICE OF HEARING-SERVICE.
1. Where drainage district organized under C. S., secs 4495-4499, gave notice of hearing on commissioners' report and supplemental report for change of boundaries to include plaintiff's lands, under sections 4504, 4509, 4510, 4514, plaintiff, who was notified, but made no protest against confirmation of district and assessments under sections 4526, 4527, paid assessments, and permitted district to incur expenses, could not, under section 4513, be heard to complain in proceedings to enjoin issuance of bonds that notice was insufficient, unless notice was so deficient as to render proceedings void.
2. Ordinarily property owner, duly notified of hearing on report of drainage commissioners, under C. S., sec. 4510, cannot complain that some other person is not notified, especially after the conclusion of a proceeding in which there was opportunity to present such objection.
3. In suit by property owner to enjoin issuance of bonds by drainage district and to cancel assessments against plaintiff's lands for insufficiency of notices of hearing on confirmation of commissioners' report and supplemental report, under C. S., secs. 4504, 4509, 4510, 4514, plaintiff having been duly notified by notice addressed to land owners of district and those within proposed enlarged boundaries thereof, court would not presume that other interested persons had been injuriously affected by failure to receive notice, in order to hold proceedings void.
4. Notice, directed to land owners and persons interested in lands included in drainage district or within proposed enlarged boundaries thereof, of hearings on report and supplemental report of drainage commissioners to extend boundaries, under C. S., secs. 4504, 4509, 4510, 4514, held not to render confirmation of report void, under section 4513, as to one owning land within the extended boundaries of the district who was duly notified, failed to protest, and paid assessments levied, and who objected for first time in suit to enjoin issuance of bonds by the district organized under sections 4495-4499, transcript of confirmation having been filed under sections 4526 and 4527.
5. Service of summons on property owner in drainage district on proposed change of plans by publishing notice of time and place of hearing, together with petition, held sufficient under C. S., sec. 4534, requiring that summons shall be served in the same manner as the service of summons in the case of the original petition, though no actual summons was required on original petition; and statute does not require service of summons as in civil actions under section 6676 and is not void for indefiniteness or uncertainty.
APPEAL from the District Court of the Seventh Judicial District, for Gem County. Hon. B. S. Varian, Judge.
Action to enjoin issuance of bonds and cancel assessments. Judgment for defendants. Affirmed.
Judgment affirmed. Costs to respondents.
Wm. M Morgan for Appellant.
The notice of hearing on confirmation of the report of drainage commissioners, provided for in C. S., sec. 4510, and the notice of hearing on the supplemental report, provided for in C. S., sec. 4514, and the service of summons, provided for in C. S., sec. 4534, in case of procedure upon change of plans in the system of improvement or in the manner of the construction thereof in a drainage district, must be given and made substantially in the manner and form prescribed by statute in order that the district court may have jurisdiction to hear and determine the matters presented by the reports mentioned in said secs. 4510 and 4514 or the petition mentioned in sec. 4534. (Boone v. District Court, 38 Idaho 688, 224 P. 429; Davis v. Board of Commrs., 45 Okla. 284, 137 P. 114, and cases therein cited in opinion on rehearing, page 120.)
The summons set out in paragraph numbered 11 of plaintiff's complaint is insufficient in substance and form to comply with the statute requiring it to be issued and served, and the publication thereof in lieu of proper service of a summons, as by law required, does not afford due process of law as guaranteed by the constitutions of the United States of America and of the state of Idaho. (C. S., sec. 6676; 1927 Sess. Laws, chap. 93, p. 119; C. S., sec. 4534; Fifth Amendment to constitution of the United States of America; Const., art. 1, sec. 13.)
Charles F. Reddoch and Harry S. Kessler, for Respondents.
All land owners, persons or corporations against whom assessments might be levied for the drainage improvements, have paid three annual levies thereon, stood by and permitted the letting of a contract, a change of plans in the system of improvement, the active performance of the contract by the district and the contractor, the adoption of the necessary steps to issue the bonds of the district by which they have estopped themselves of any right they might have once had, to object thereto. (Page v. Oneida Irr. Dist., 26 Idaho 108, 141 P. 238; Hemenway v. Craney, 36 Idaho 11, 208 P. 407; Board of Commrs. v. Plotner, 149 Ind. 116, 48 N.E. 635; Goeppinger v. Board of Supervisors, 172 Iowa 30, 152 N.W. 58; Hamilton v. Vermillion Special Drain. Dist., 146 Ill.App. 84; Peters v. Griffee, 108 Ind. 121, 8 N.E. 727; Taber v. Ferguson, 109 Ind. 227, 9 N.E. 723; Caldwell v. Village of Mountain Home, 29 Idaho 13, 156 P. 909.)
Assessments having been imposed against all land owners, persons or corporations against whom they might have been legally levied, and all such persons having been notified by published notice, and also by registered mail, upon the original report and by published notice upon the amended and supplemental report, are in no position to complain that someone else did not receive notice, as only those land owners who did not receive notice, if any, can complain. (19 C. J. 736; In re Lightner, 145 Iowa 95, 123 N.W. 749; Carr v. Boone, 108 Ind. 241, 9 N.E. 110; Ross v. Board of Supervisors of Wright County, 128 Iowa 427, 104 N.W. 506, 1 L. R. A., N. S., 431; Commissioners of Boone's Pond Mut. Drainage Dist. v. O'Daniel, 291 Ill. 528, 126 N.E. 198; Commissioners of Levee Drainage Dist. v. Shaw, 252 Ill. 142, 96 N.E. 984; Freesen v. Scott County Drainage & Levee District, 283 Ill. 536, 119 N.E. 625.)
The notice or summons set out in paragraph 11 of the complaint substantially complied with C. S., sec. 4534, and the form and substance thereof afforded due process of law as guaranteed by the constitutions of the United States of America and of the state of Idaho for the following reasons:
(a) The word "summons" used in this statute should be held to mean "notice." (5 Words & Phrases, 1st series, pp. 4843, 4844; 6 Words & Phrases, 1st series, pp. 5648, 5650; 3 Words & Phrases, 2d series, p. 1244.)
(b) Where one statute adopts, not another particular statute or section, but the general law governing a subject, it adopts the law governing that subject at the time the exigency arises to which the law is to be applied. (Nampa & Meridian Irr. Dist. v. Barker, 38 Idaho 529, 223 P. 529; Dabney v. Hooker, 121 Okla. 193, 249 P. 381; Vallejo & N. R. Co. v. Reed Orchard Co., 177 Cal. 249, 170 P. 426; Pittsburgh, C. C. & St. L. Ry. Co. v. James, 64 Ind.App. 456, 114 N.E. 833.)
(c) The district having been duly organized, its boundaries fixed and established, the assessments approved and confirmed, the summons or notice published upon the petition for change of plans was notice to every property owner or other person whomsoever affected thereby. (Little Willow Irr. Dist. v. Haynes, 24 Idaho 317, 133 P. 905; Fogg v. Perris Irr. Dist., 154 Cal. 209, 97 P. 316; Mitchell v. Power (Ariz.), 255 P. 481.)
(d) The usual meaning of a word may be disregarded when it is evident that it was incorrectly used, or that the legislature used it in another sense. (In re Segregation of School Dist. No. 58, 34 Idaho 222, 200 P. 138.)
Appellant brought this action to enjoin the issuance of bonds by respondent district and to cancel assessments made against appellant's lands. The trial court, on stipulated facts, rendered judgment for the defendants, from which this appeal is taken.
The original temporary organization of the district under C. S., secs. 4495 to 4499, not including appellant's land, is stipulated to have been regular. The commissioners, stipulated to have been regularly appointed, made the report contemplated by C. S., sec. 4504, and therein proposed a change of boundaries to include plaintiff's lands, under the provisions of C. S., sec. 4509, and apportioned assessments against all the lands, and against the lands of appellant in the sum of $ 782.92.
Upon this report, a notice purporting to be in conformity with C S., sec. 4510, was given of a hearing to be had thereon. This notice was directed to "the land owners and all persons or corporations interested in the lands included in the territory within the boundaries of the proposed Drainage District No. 1 of Gem County." Numerous objections and remonstrances were filed against this report, but no hearing was held thereon. Thereafter, the commissioners filed a supplemental report under C. S., sec. 4514, and a further notice was given of a hearing to be had thereon, which was directed to "the land owners and all persons or corporations otherwise interested in lands included in the boundaries of Drainage District No. 1 of Gem County, or within the ...
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