Gardner v. Blaine County

• Citation: 15 Idaho 698,99 P. 826
• Parties: WALTER GARDNER, Appellant, v. BLAINE COUNTY, IDAHO, Respondent
• Decision Date: 22 January 1909
• Court: United States State Supreme Court of Idaho

99 P. 826

15 Idaho 698

WALTER GARDNER, Appellant, v. BLAINE COUNTY, IDAHO, Respondent

Supreme Court of Idaho

January 22, 1909

PETITION FOR THE INCORPORATION OF A VILLAGE - HEARING BEFORE BOARD OF COMMISSIONERS-APPEAL TO DISTRICT COURT-HEARING IN DISTRICT COURT.

1. An order for the incorporation of a village under the provisions of Rev. Codes, sec. 2222, is appealable to the district court, by any person aggrieved thereby or by any taxpayer within the territory affected by such incorporation.

2. Rev Codes, sec. 1953, provides that upon the appeal the matter must be heard anew, and the act, order or proceeding so appealed from may be affirmed, reversed or modified.

3. "Heard anew," as used in this statute, means that the cause shall be retried in the district court as though originally brought in said court, and the case must be proven in the same way, and the burden of proof rests with the same party as before the board of commissioners. It is a retrial of the matter tried before the board of county commissioners.

4. Upon the trial anew in the district court, upon an appeal from an order of the board of county commissioners, it is error for the trial court to require the party having the negative to take the affirmative and disprove the facts as found by the board of commissioners.

(Syllabus by the court.)

APPEAL from the District Court of the Fourth Judicial District for Blaine County. Hon. Edward A. Walters, Judge.

A petition was presented to the board of county commissioners for the incorporation of the village of Soldier. The board granted the prayer of the petition. An appeal was taken to the district court, where the order of the board was affirmed. This appeal is from the judgment of the district court. Reversed.

Judgment of the district court reversed and set aside. Costs awarded to appellant.

McFadden & Brodhead, for Appellant.

The proceedings before the district court in such appeals are the same as upon an appeal from the probate or justice court in a civil action; there must be a trial de novo, and it is no more incumbent upon the appellant to take the affirmative than it would be for a defendant, who is an appellant from the justice court, to take the affirmative of the issue. (Campbell v. Board of Commrs., 5 Idaho 53, 46 P 1022.)

H. F. Ensign, Prosecuting Attorney of Blaine County, and R. M. Angel, for Respondent, file no brief.

STEWART, J. Ailshie, J., concurs.

OPINION

STEWART, J.

A petition was presented to the board of county commissioners of Blaine county, praying for the incorporation of the village of Soldier as provided for in Rev. Codes, sec. 2222. Afterward the board of county commissioners made an order incorporating the village of Soldier, fixed the metes and bounds thereof, and designated a board of trustees to serve until the next regular village election. Walter Gardner, a citizen of the United States and the state of Idaho, and a resident and taxpayer within the limits of the territory of the purported village of Soldier, appealed to the district court from the order of the board of county commissioners incorporating the village of Soldier.

When the case was called for trial in the district court, counsel for appellant moved that respondent be required to take the affirmative and show the jurisdictional facts necessary to authorize the board of commissioners to incorporate the village of Soldier, inasmuch as the statute requires that the matter be heard anew. Whereupon the court overruled said motion and directed the appellant to open the case, to which ruling appellant excepted. Trial was had in the district court and findings of fact were made and a decree rendered in which the court decreed that the act of the board of county commissioners of Blaine county, declaring the village of Soldier to be a corporate body, was valid, and within the board's jurisdiction, and the appeal from said act or order was dismissed. From this decree Walter Gardner appeals to this court.

The sole question presented by this appeal is: What was the proceeding in the district court and how should the trial have been conducted upon the appeal from the board of county commissioners? Before discussing this question, we deem it proper to refer to the title of this action. The title of the case is Gardner v. The Board of County Commissioners. The action, however, is not being maintained by Mr. Gardner against the board of county commissioners. The petition presented to the board related to the incorporation of the village of Soldier, and the proper title before the board of commissioners was, "In the Matter of the Petition for the Incorporation of the Village of Soldier." When Mr. Gardner appealed from the order made by the commissioners, he would not become plaintiff in the case, and neither would the board become defendant. The title of the action properly should have remained as entitled before the board, and such title should have been carried throughout the procedure and upon the appeal in this court. While the title given to the action does not affect its merits or detract from the rights of the parties interested in the controversy, yet it is better in matters of this kind that a proper title be given, and that the title be maintained throughout the proceeding.

Turning, then, to the question involved upon this appeal, as to the procedure in the district court, and the manner in which the cause should have been tried, we find that the statute provides, Rev. Codes, sec. 1950:

"An appeal may be taken from any act, order or proceeding of the board, by any person aggrieved thereby, or by any taxpayer of the county when any demand is allowed against the county, or when he deems any such act, order or proceeding illegal or prejudicial to the public interests."

The subject matter of this case falls clearly within the provisions of this section and authorizes any person aggrieved by the decision or order of the board or any taxpayer to appeal. Rev. Codes, sec. 1953, clearly and specifically provides the procedure and manner of trial in the district court. It is:

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