In re Bear River Irrigation District

• Decision Date: 09 March 1937
• Docket Number: 2004
• Citation: 51 Wyo. 343,65 P.2d 686
• Parties: IN RE BEAR RIVER IRRIGATION DISTRICT; v. STEWART, ET AL MEYERS, ET AL.
• Court: Wyoming Supreme Court

65 P.2d 686

51 Wyo. 343

IN RE BEAR RIVER IRRIGATION DISTRICT;

MEYERS, ET AL. v. STEWART, ET AL

No. 2004

Supreme Court of Wyoming

March 9, 1937

APPEAL from the District Court, Uinta County; H. R. CHRISTMAS Judge.

Application for authority to issue warrants by Fred B. Meyers and others. Commissioners of the Bear River Irrigation District, opposed by J. Frank Stewart and Alexander Morrow, objectants. From a judgment denying the application, the Commissioners appeal.

Affirmed.

For the appellants, the cause was submitted upon the briefs of Louis Kabell, Jr. and R. Dwight Wallace of Evanston.

The only point at issue in this appeal is whether the Commissioners have authority to issue interest-bearing warrants prior to levying an assessment. Irrigation districts were classified in the case of Sullivan v. Blakesley (Wyo.) 246 P. 918. It is similar to the classification given in other states. Eldridge v. District, (Idaho) 43 P.2d 1052; Bettencourt v. Industrial Acc. Comm. (Cal.) 166 P. 323; also 67 C. J. 1297; Sec. 122-721, R. S. 1931. The rule with regard to the construction of such districts is set out in 67 C. J. 1300. Drake v. Schoregge. 277 P. 627; 59 C. J. 946, 948, 961 and 995. The classification of district officers is stated in 67 C. J. 1215, Sec. 122-713, R. S., see also Sec. 122-710, 711, 713, 714, R. S. The organization decree directed that Section 122-714, R. S. be followed. The district has been sued in Federal court and is without funds to make its defense. Irrigation districts have implied powers to borrow money. Secs. 122-724, 731, R. S. 1931; 67 C. J. 1317; 59 C. J. 972. The extent of municipal powers is a question of construction. 44 C. J. 67. Miles v. Ashland, (Wisc.) 179 N.W. 779; 44 C. J. 1145. Yaden v. Irr. Dist., (Idaho) 216 P. 250. The Wyoming District law was taken in part from California. 3 Kinney on Irrigation, 2573-2574. The general law in situations of this kind is stated in 59 C. J. 974. Construction assessments must be confirmed by the court. Sec. 122-717, et seq. The expense of organization is part of the construction cost. Sec. 122-714, paragraph 5, R. S.

For the respondent, there was a brief and the cause was argued orally by P. W. Spaulding of Evanston.

There is no showing that this district has acquired a water right. It cannot therefore construct a reservoir if another appropriator is injured thereby. Van Tassel Real Estate Co. v. City, 54 P.2d 906. The trial court held that the district could not issue interestbearing warrants before an assessment of benefits has been made. This does not seem to be an appealable order. The government loan and grant has been withdrawn. The purpose of the district is thereby defeated. The organization petition constitutes the basis for all subsequent proceedings. Rich v. Connelly, (Cal.) 191 P. 541. The situation is similar to that presented in the Greybull Valley District case, (Wyo.) 54 P.2d 810; also in Colorado Irrigation Company v. District, 194 P. 610; Antero Co. v. Lowe, 194 P. 954. The petition must be verified. Secs. 89-1048, 1050. The affidavit filed with the petition was made under Section 122-707, R. S. 1931, and is incompetent evidence of any other fact. The attention of the court is directed to the provisions of Article 7, Chapter 12 of our statutes relating to irrigation districts. An irrigation district has been defined as the lowest form of corporate life. This does not differ greatly from the definition announced in State v. Hunt, (Wyo.) 57 P.2d 797. See also, Sullivan v. Blakesley, 246 P. 922; Metcalf v. Merritt, 111 P. 506. As to the defense of the pending suit, we cite 67 C. J. 1329. The proceeds of the district warrants must be used for the purpose for which taxed or assessed. Roe v. Water Conservation Dist., 16 P.2d 968; Ser Vis v. Irrigation District, 214 P. 224; Trust Company v. Steele, 173 P. 875; Ellis v. Moses, 230 P. 803; Kelly v. Jackson, 52 P.2d 676. The state constitution limits public indebtedness. Article 16, Sec. 4. Biggart v. Lewis, 192 P. 440; 67 C. J. 1317; Ramirez v. District, 294 P. 615; District v. Collins, (Nebr.) 65 N.W. 1086. There is no power to levy assessments, except such as is conferred by statute. Bass v. City of Casper, 205 P. 1008. The published notice was indefinite and insufficient. There is no statute authorizing the issuance of the warrants in question. The district has no authority to expend funds in defense of individuals. The federal suit was brought against individuals. Ser Vis v. District, supra.

BLUME, Chief Justice. RINER and KIMBALL, JJ., concur.

OPINION

BLUME, Chief Justice.

On November 19th, 1935, an order was entered in the district court of Uinta County establishing the Bear River Irrigation District, and appointing the appellants herein as the commissioners of the district. These commissioners took the oath required by law and filed a bond as directed by the statute and the order of the court on December 19th, 1935. On January 27, 1936, the appellants filed a petition in the district court, alleging that they had employed a civil engineer to do all preliminary work so that assessments might properly be made as required by law; that a suit had been commenced in the Federal court to restrain the construction of a reservoir and irrigation works contemplated by the irrigation district, and that the district has been made a defendant in that suit. They accordingly asked for authority to issue interest bearing warrants of the irrigation district in the sum of $ 8000 to defray the expenses of such preliminary work, to defend in the suit above mentioned, and to pay incidental expenses. On the hearing of this application on March 2, 1936, the court denied the right to issue such warrants, on the ground that none could be issued till an assessment had been made, and from a judgment to that effect the commissioners have appealed.

Counsel for the objectors herein claims that the petition for the organization of the district was not verified, and that hence the court did not acquire jurisdiction to establish the district. He calls attention to Section 89-1048, Rev. St. 1931, providing that every pleading must be verified. It is, however, doubtful that this provision of the Code of Civil Procedure applies in the special proceeding for the establishment of an irrigation district. Furthermore, even if it did, the failure to so verify it would be but a defect or irregularity and would not be jurisdictional. The attack on the decree in the instant proceeding is collateral, and no objections to it can be urged herein unless jurisdictional. It is also contended that the fees for attorneys sought to be expended will not be for the benefit of the district. That point is not clear, but need not be decided herein.

Counsel for the appellants contend that the power to employ attorneys and other persons for the purpose of the district has been expressly granted. That is true. Sec. 122-713, Rev. St. 1931. They contend further that this power carries with it, by implication, all powers necessary or incidental to the exercise of that which has been expressly granted. That is the ordinary rule. At the same time the statutes applicable are the measure of the power possessed by the district and its commissioners. 67 C. J. 1315-1317. The legislature has, seemingly, attempted to provide for all cases in which the district may borrow money and issue its interest bearing notes or bonds, and we take it that the "warrants" sought to be authorized herein would come within the meaning of "note" and "bond." Section 122-731, Rev. St. 1931 provides:

"The commissioners may borrow money, not exceeding the amount of 'assessment for construction,' as herein provided, unpaid at the time of borrowing for such purposes, or for the payment of any indebtedness they may have lawfully incurred, and may secure the same by notes and bonds" etc.

While the foregoing provision is somewhat equivocal we think that the legislature meant thereby to provide that money may be borrowed and secured for the cost of construction of the irrigation works of the district and for the purpose of defraying any other lawful and proper indebtedness incurred by the district. That would seem to include all proper cases and contingencies when money may be borrowed. Having made such complete provision, it would seem that the rule of expressio unius est exclusio alterius is applicable. Hence the limitations of Section 122-731, supra, must apply also. That limitation...