Hackney v. Elliott
| Decision Date | 01 May 1912 |
| Docket Number | 81912 |
| Parties | HACKNEY v. ELLIOTT |
| Court | North Dakota Supreme Court |
Appeal by plaintiff from a judgment of the District Court for Ranson County, Allen, J., holding valid certain drainage assessment taxes levied against plaintiff's property.
Modified on condition and affirmed.
Purcell & Divet, and Ashley Coffman, of counsel, for appellant.
The petition presented to the Richland county board was insufficient to confer jurisdiction to establish the drain. Deisner v. Simpson, 72 Ind. 435; Whitford Twp v. Phinney, 53 Mich. 130, 18 N.W. 593; Morse v Omaha, 67 Neb. 426, 93 N.W. 734; Miller v Amsterdam, 149 N.Y. 288, 43 N.E. 632; Barker v Wyandotte County, 45 Kan. 699, 26 P. 591; Noffzigger v. McAllister, 12 Kan. 315; Allen v. Portland, 35 Ore. 420, 58 P. 509.
The order should not only establish the length and course of the drain, but its width, as the necessities of a right of way are not otherwise ascertainable. Mitchell v. Lane, 62 Hun, 253, 16 N.Y.S. 707; Page & J. on Taxation by Assessment, § 800; Watkins v. Griffith, 59 Ark. 344, 27 S.W. 234; Re Drake, 69 Hun, 95, 23 N.Y.S. 264; London v. Sample Lumber Co. 91 Ala. 606, 8 So. 281; Vail v. Morris & E. R. Co. 21 N.J.L. 189; State, Trenton & N. B. Turnp. Co., Prosecutors, v. American & E. Commercial News Co. 43 N.J.L. 381; California C. R. Co. v. Hooper, 76 Cal. 404, 18 P. 599; Null v. Zierle, 52 Mich. 540, 18 N.W. 348; Mathias v. Carson, 49 Mich. 465, 13 N.W. 818; Ross v. State, 119 Ind. 90, 21 N.E. 345.
The provision, providing for the record of the return of the drainage board to the auditor must be held to be mandatory. Sweigle v. Gates, 9 N.D. 544, 84 N.W. 481; Cooley, Taxn. pp. 284, 285; Deitz, Taxn. § 106; Fraser v. Mulany, 129 Wis. 377, 109 N.W. 139; Indiana Bond Co. v. Shearer, 24 Ind.App. 622, 57 N.E. 276; Rauer v. Lowe, 107 Cal. 229, 40 P. 337.
The assessment roll must show the amount of the assessment with such certainty that the amount can be readily determined therefrom. Page & J. Special Assessments, § 883; People v. San Francisco Sav. Union, 31 Cal. 132; People v. Hastings, 34 Cal. 571; Chicago v. Walker, 24 Ill. 494; Etchison Ditch Asso. v. Hillis, 40 Ind. 408; Spokane Falls v. Browne, 3 Wash. 84, 27 P. 1077; Lake County v. Sulphur Bank Quicksilver Min. Co. 66 Cal. 17, 4 P. 876; McChesney v. People, 145 Ill. 614, 34 N.E. 431.
Curtis & Curtis and Rourke & Krello, for respondent.
The petition is valid. Sim v. Rosholt, 16 N.D. 77, 11 L.R.A. (N.S.) 372, 112 N.W. 50; Karr v. Putnam County, 170 Ind. 571, 85 N.E. 1; Auditor General v. Bolt, 147 Mich. 283, 111 N.W. 74.
The petition, if irregular or invalid, cannot be impeached in collateral actions of this kind. Morrill v. Morrill, 20 Ore. 96, 11 L.R.A. 155, 23 Am. St. Rep. 95, 25 P. 362; Smith v. Morrill, 12 Colo.App. 233, 55 P. 824; Peyton v. Peyton, 28 Wash. 278, 68 P. 757; Oliver v. Monona County, 117 Iowa 43, 90 N.W. 510; Griffith v. Pence, 9 Kan.App. 253, 59 P. 677; State ex rel. Mayfield v. Myers, 100 Ind. 487; Jackson v. State, 104 Ind. 516, 3 N.E. 863; Pickering v. State, 106 Ind. 228, 6 N.E. 611; McMullen v. State, 105 Ind. 334, 4 N.E. 903; Deegan v. State, 108 Ind. 155, 9 N.E. 148; Montgomery v. Wasem, 116 Ind. 343, 15 N.E. 795; McBride v. State, 130 Ind. 525, 30 N.E. 699; State ex rel. Wilcox v. Jackson, 118 Ind. 553, 21 N.E. 320; Perkins v. Hayward, 132 Ind. 95, 31 N.E. 670.
Whether the Richland county board was properly organized would not affect the validity of the Ransom county tax. Cleveland v. McCanna, 7 N.D. 455, 41 L.R.A. 852, 66 Am. St. Rep. 670, 75 N.W. 908; Merchants' Nat. Bank v. McKinney, 2 S.D. 106, 48 N.W. 841; People ex rel. Selby v. Dyer, 205 Ill. 575, 69 N.E. 70; Sim v. Roshholt, 16 N.D. 80, 11 L.R.A. (N.S.) 372, 112 N.W. 50; State ex rel. Utick v. Polk County, 87 Minn. 325, 60 L.R.A. 161, 92 N.W. 216.
Flynn & Traynor and C. F. Clark, for intervener, E. R. Moore.
The facts are clearly sufficient to establish the estoppel. State Finance Co. v. Beck, 15 N.D. 374, 109 N.W. 357; State Finance Co. v. Mather, 15 N.D. 386, 109 N.W. 350, 11 Ann. Cas. 1112; State Finance Co. v. Trimble, 16 N.D. 199, 112 N.W. 984; Powers v. First Nat. Bank, 15 N.D. 466, 109 N.W. 361; Brosemer v. Kelsey, 106 Ind. 504, 7 N.E. 569; Prezinger v. Fording, 114 Ind. 599, 16 N.E. 499; Ross v. Stackhouse, 114 Ind. 200, 16 N.E. 501; McCoy v. Able, 131 Ind. 417, 30 N.E. 528; Lewis v. Albertson, 23 Ind.App. 147, 53 N.E. 1071; Page & J. Taxation by Assessment, § 1015; Erickson v. Cass County, 11 N.D. 494, 92 N.W. 841; Turnquist v. Cass County, 11 N.D. 514, 92 N.W. 852; Treat v. Chicago, 64 C. C. A. 645, 130 F. 443; Atwell v. Barnes, 109 Mich. 10, 66 N.W. 583; Harmon v. Omaha, 53 Neb. 164, 73 N.W. 671; State ex rel. Schintgen v. La Crosse, 101 Wis. 208, 77 N.W. 167; Bryam v. Detroit, 50 Mich. 56, 12 N.W. 912, 14 N.W. 698; Patterson v. Baumer, 43 Iowa 477; Thompson v. Mitchell, 133 Iowa 527, 110 N.W. 901; Wood v. Hall, 138 Iowa 308, 110 N.W. 270; Vickery v. Hendricks County, 134 Ind. 554, 32 N.E. 880; Atkinson v. Newton, 169 Mass. 240, 47 N.E. 1029; Cass County v. Plotner, 149 Ind. 116, 48 N.E. 636; Busenbark v. Clements, 22 Ind.App. 557, 53 N.E. 665.
The law presumes the regularity of all proceedings, and this includes the presumption that the improvement was a proper one, and that the land was benefited to the extent of the assessment. Page & J. Taxation by Assessment, §§ 1282, 1285, 1299; Conwell v. Tate, 107 Ind. 171, 8 N.E. 36; Morrow v. Geeting, 15 Ind.App. 358, 41 N.E. 849, 44 N.E. 59; Tripper v. Drainage Dist. 193 Ill. 230, 61 N.E. 1114; Chicago Union Traction Co. v. Chicago, 207 Ill. 544, 69 N.E. 849; Pinkstaff v. Allison Ditch Dist. 213 Ill. 186, 72 N.E. 715.
OPINION
Plaintiff appeals from a judgment of the district court of Ransom county, holding valid certain drainage assessment taxes levied against various tracts of land belonging to plaintiff in Ransom county. Defendant holds an interest sought to be removed as a cloud on plaintiff's title, because of tax sale certificates issued him as a purchaser at a tax sale of delinquent taxes, for tracts belonging to plaintiff covered by such special assessments. Plaintiff offers to pay the amount of any valid assessment upon his lands, but alleges their invalidity.
The assessments were levied to defray a portion of Ransom county's share of the expense occasioned by the construction of a tri-county drain, commencing within Ransom county and crossing the northeast corner of Sargent county, and extending about 5 miles into Richland county, constructed in the years 1905 and 1906, to pay for which taxes were levied in 1908, with sale thereon for delinquent taxes occurring in December, 1909, at which sale defendant purchased the certificates in question. This action was begun in the early part of 1910.
Appellant attacks the legality of the proceedings leading up to the assessment, contending, for a want of jurisdiction in the tri-county drainage board, to apportion the assessment of benefits between the three counties, for the reason that no sufficient petition for such a drain was ever presented to the Richland county drainage board; and that the proceedings of the joint drainage board of the three counties was invalidated by the unwarranted participation therein of the Richland county board as a member of such joint body; further, that the levy of benefits by percentages was insufficient; also that no interest or penalty can be collected on such delinquent drainage assessments, if such assessments are valid. Other questions are raised as appear from the following opinion:
To the validity of every special assessment levied under the drainage laws, it is essential that jurisdiction exists in the board to order the establishment and construction of the drain; or that such jurisdiction can be conferred by some act; or by an omission to act upon which an estoppel to deny jurisdiction may be based, or upon which a court of equity will refuse to entertain an equitable action to set aside the tax. As a general rule, as stated in Alstad v. Sim, 15 N.D. 629, 109 N.W. 66, the primary question is whether the objections urged go to the jurisdiction of the board in the establishment of the drain, or whether, instead, are but irregularities or departure from the statute in procedure after jurisdiction is vested in the board to proceed.
The history of our present drainage laws discloses early piece-meal legislation in which statute after statute has been repealed, to be later followed by an entire and wholesale substitution of borrowed enactment. Our present law has little, if any, resemblance to the early drainage statutes. Chapter 38 of the Laws of Dakota Territory of 1875 granting to Union and Clay counties right of establishment of drains, required that the petition should set forth "the necessity of the same, with a description of its proposed starting point, route, and terminus, together with the names of the owners or occupants or agents of the land through which the same may pass." The first comprehensive drainage act was chapter 75 of the Territorial Laws of 1883, in many respects the most comprehensive drainage act ever enacted in this jurisdiction, when taken with chapter 76 of the same year as to bonding. Chapter 75 provided for the filing of "a petition signed by one or more of the landowners whose lands will be liable to be affected or assessed for the construction of the same, setting forth the necessity thereof, with a general description of the proposed starting point, route, and terminus," with a bond to be furnished by petitioners, conditioned to pay the expense incurred if the project was not found feasible. This was somewhat changed by chapter 43 of the Laws of 1887....
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