Haga v. Nampa & Meridian Irrigation District

• Decision Date: 01 December 1923
• Citation: 221 P. 147,38 Idaho 333
• Parties: OLIVER O. HAGA, Respondent, v. NAMPA AND MERIDIAN IRRIGATION DISTRICT, a Corporation, Appellant
• Court: Idaho Supreme Court

221 P. 147

38 Idaho 333

OLIVER O. HAGA, Respondent, v. NAMPA AND MERIDIAN IRRIGATION DISTRICT, a Corporation, Appellant

Supreme Court of Idaho

December 1, 1923

IRRIGATION DISTRICTS - CONTRACTS BETWEEN IRRIGATION DISTRICTS AND UNITED STATES GOVERNMENT-LEVY OF ASSESSMENTS-CONFIRMATION.

1. An irrigation district has no right to actually levy an assessment under C. S., sec. 4387, against land, and sell the same for delinquent assessment, until after the confirmation of the apportionment of benefits in accordance with C. S sec. 4364.

2. Assessments under C. S., sec. 4482, are to be levied as provided in C. S., sec. 4387.

3. Assessments to pay maintenance and operation charges on water rights purchased by an irrigation district from the United States government may, under C. S., secs. 4485-4492, be levied prior to the proceedings provided for in C. S., sec 4364.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles P. McCarthy, Judge.

Action to enjoin levying or assessing taxes by irrigation districts. Judgment for plaintiff. Affirmed in part and reversed in part.

Judgment of the lower court affirmed as to the assessments levied to pay for the water rights purchased from the government, and reversed as to the assessments to pay maintenance and operation charges. Costs awarded to respondent.

H. E McElroy and B. E. Stoutemyer, for Appellant.

An irrigation district has jurisdiction to levy taxes based on an assessment of benefits before such assessment has been finally confirmed by the courts under C. S., sec. 4364. (C. S., secs. 4362, 4387 and 4481; Modesto Irr. Dist. v. Tregea, 88 Cal. 334, 26 P. 237; Crall v. Poso Irr. Dist., 87 Cal. 140, 26 P. 797; Progressive Irr. Dist. v. Anderson, 19 Idaho 504, 114 P. 16.)

"The right to an appeal being purely statutory, the legislature has the authority to make the decision of the municipal officers final and conclusive." (Hamilton, Law of Special Assessments, par. 755; Hughes v. Parker, 148 Ind. 692, 48 N.E. 243.)

"Special assessments are a species of taxation which is constitutional and proper, without any provision for an appeal from the action of those intrusted with the duty of making or revising such assessments." (Hamilton, Law of Special Assessments, par. 755; Colburn v. Wilson, 24 Idaho 94, 132 P. 579; Oil City v. Oil City Boiler Works, 152 Pa. 348, 25 A. 549; Bowers v. Braddock, 172 Pa. 596, 33 A. 759.)

Where a statute grants a right or imposes a duty, it confers by implication every particular power necessary for the exercise of the one or the performing of the other. (Newcomb v. City of Indianapolis, 141 Ind. 451, 40 N.E. 919, 28 L. R. A. 732; Bailey v. State, 163 Ind. 165, 71 N.E. 655; Johnston v. Louisville, 74 Ky. (11 Bush) 527; Heard v. Pierce, 62 Mass. 338 (8 Cush.), 54 Am. Dec. 757.)

The determination of the assessing board as to what property is benefited, and the extent of such benefit, is conclusive in the absence of fraud or mistake. (Erickson v. Cass County, 11 N.D. 494, 92 N.W. 841; Rogers v. City of St. Paul, 22 Minn. 494; Carpenter v. City of St. Paul, 23 Minn. 232; Cunningham v. Board, 27 Minn. 442, 8 N.W. 161; Shuttuck v. Smith, 6 N.D. 56, 69 N.W. 5; Wright v. Chicago, 48 Ill. 287.)

The right to object to assessment is waived by accepting the benefits and using the water obtained by the bond issue or contract. (Page v. Oneida Irr. Dist., 26 Idaho 108, 141 P. 238.)

Richards & Haga, for Respondent.

The legislature has not vested in irrigation districts unlimited power in the determination of benefits but it has wisely provided that a land owner's property cannot be taken under the power of taxation until the proceedings for the determination and assessment of benefits have been examined, reviewed, corrected and confirmed by the district court. (C. S., secs. 4363, 4364, 4365, 4366, 4381, 4387.)

The mischief of a strict construction is easily obviated by the legislature; but the mischief of a liberal construction may be irremediable before it can be reached. (1 Cooley on Taxation, 3d ed., pp. 468, 469; Smith v. City of Omaha, 49 Neb. 883, 69 N.W. 402; Leavitt v. Bell, 55 Neb. 57, 75 N.W. 524.)

The provisions in the statutes for confirmation by the court are for the benefit and protection of the individual taxpayer, and they are conditions precedent to a lawful demand upon the citizen. (2 Page & Jones on Taxation by Assessment, sec. 910; Flint v. Webb, 25 Minn. 93; Fisher v. Mayor, 67 N.Y. 73.)

Where confirmation is provided for by statute as one of the steps in levying the assessment, such confirmation is necessary to the validity of the assessment. (2 Page & Jones on Taxation by Assessment, secs. 910, 1351; Manor v. Board of Commrs., 137 Ind. 367, 34 N.E. 959, 36 N.E. 1101; Black v. Thompson, 107 Ind. 162, 7 N.E. 184; Early v. City of Fort Dodge, 136 Iowa 187, 113 N.W. 766; Aherns v. City of Seattle, 39 Wash. 168, 81 P. 558.)

GIVENS, District Judge. Budge, C. J., and Dunn, William A. Lee and Wm. E. Lee, JJ., concur. McCarthy, J., did not sit at the hearing and took no part in the decision.

OPINION

GIVENS, District Judge.

--Upon rehearing, the original opinion herein is withdrawn and the following substituted as the opinion of the court.

Respondent is the owner of 320 acres in appellant irrigation district. Eighty acres of respondent's land are watered by appellant district with what is known as "Ridenbaugh water," and no controversy exists with regard to the same. The balance, 240 acres, is irrigated from the Boise project of the United States Reclamation Service and from waste water.

In October, 1914, the district, without the consent of respondent, entered into a contract with the United States, through the Secretary of the Interior, to purchase water rights for, among other lands in the district, the 240 acres belonging to respondent, such water rights to be paid for by respondent at $ 75 per acre. Respondent contested the contract, which was affirmed in Nampa & Meridian Irr. Dist. v. Petrie, 28 Idaho 227, 153 P. 425, 248 U.S. 154, 39 S.Ct. 25, 63 L.Ed. 178.

Thereafter the district directors made an assessment of benefits to pay the cost of these additional water rights so purchased, and after proceedings had been instituted in the district court to confirm said assessment of benefits, but prior to their confirmation, the district made annual levies to pay maintenance and operation charges on said water rights. Respondent is contesting the collection of such levies, contending that the same are not valid liens and may not be enforced prior to the confirmation of the apportionment of benefits by the district court.

Appellant contends that the assessments to pay the contract price for these additional water rights, such payments to be made to the United States government, are governed by the same statute providing for the payment of district bonds and the interest thereon, and that since bonds may be issued and confirmed under C. S., sec. 4361, and mandamus issue against the directors to compel the district to make the necessary levies to pay the interest on such bonds, it is unnecessary to wait until the confirmation proceedings before such levies may be made and enforced. Appellant also urges that the statute be given a construction consonant with the purpose for which it was enacted, such main purpose being to furnish water. It is not to be lost sight of, however, that this water is to be furnished to, and for the benefit of, the land owners, and they and not the officers of the district are the real parties in interest. C. S., secs. 4387 and 4482, as originally passed by the 1915 session of the Idaho legislature (1915 Sess. Laws, c. 143, sec. 8, p. 314), were in one section, but were separated by the codifier of the Compiled Laws of 1918, and so placed in the Compiled Statutes of 1919. This, however, did not add to or change the original enactment which thus had provided the same procedure for the payment of bonds and the interest thereon as for the payments to the United States government on contracts between irrigation districts and the government.

Where an irrigation district has contracted with the United States for additional water rights, to be furnished by the United States, the assessments to pay therefor are to be levied as provided for in C. S., sec. 4382, which section in terms provides that such levies are to be made in accordance with C. S., sec. 4387.

The authorities cited by appellant are, therefore, not in point, because the question of the levy of assessments to defray the purchase price of such water rights is one of statutory construction bearing upon C. S., sec. 4387, the material portion of which reads as follows:

"At its regular meeting in October the board of directors shall levy an assessment upon the lands in said district upon the basis, and in the proportion, of the list and apportionment of benefits approved by the court as hereinbefore provided . . . . " (Italics ours.)

The section of the statute with regard to the court's confirming a bond issue is found under an entirely different article of the statute and relates solely to the issuance and sale of bonds.

Modesto Irr. Dist. v. Tregea, 88 Cal. 334, 26 P. 237, a case cited by appellant involved the sufficiency of notice of levy, and is not in point herein, but contains the following language which is pertinent:

"The formation of irrigation districts is accomplished by proceedings so closely analogous to those prescribed for the formation of swamp-land reclamation districts that the decisions with respect to the latter are authority as to the former . . . . "

The following decisions, therefore, some of which construe and interpret drainage acts and are decisive of similar statutes,...