In re Greybull Valley Irr. Dist.; Donovan,, Irrigation Com'rs. v. Owen,, 2061

• Decision Date: 15 February 1938
• Docket Number: 2061
• Citation: 52 Wyo. 479,76 P.2d 339
• Parties: IN RE GREYBULL VALLEY IRR. DIST.; DONOVAN, ET AL., IRRIGATION COM'RS. v. OWEN, ET AL
• Court: Wyoming Supreme Court

76 P.2d 339

52 Wyo. 479

IN RE GREYBULL VALLEY IRR. DIST.; DONOVAN, ET AL.,

IRRIGATION COM'RS. v. OWEN, ET AL

No. 2061

Supreme Court of Wyoming

February 15, 1938

Rehearing Denied March 22, 1938, Reported at: 52 Wyo. 479 at 511.

APPEAL from the District Court, Big Horn County; H. P. ILSLEY Judge.

In the matter of the Greybull Valley Irrigation District. From a judgment, generally granting the prayers of a petition by M J. Donovan and others, commissioners of the district, for revision of an order confirming an amended assessment roll approving a contract between the district and the United States and issuance of district bonds in accordance therewith, and authorizing the construction of an irrigation project, Frank G. Owen and others, objectors, appeal.

Affirmed.

For the appellants, there was a brief by M. L. Simpson of Cody, Lin I. Noble of Thermopolis and H. B. Henderson, Jr. of Cheyenne, and oral arguments by Messrs. Simpson and Henderson.

Final orders are defined by Chapter 89, Article 4801, R. S. 1931. An order made in a special proceeding is a final order. 3 C. J. 375; Board v. Ah Won, (Ore.) 22 P. 1105; 3 C. J. 453; Anderson v. Englehart, 18 Wyo. 196; Riffle v. Coal Mining Co., 20 Wyo. 442; Weaver v. Richardson, 21 Wyo. 343. The indemnity contract is void because ultra vires. 67 C. J. 1315; Bottoms v. Madera Irrigation District, (Cal.) 242 P. 100; Crawford v. Irrigation District, (Cal.) 263 P. 726; Yaden v. Irrigation District, 216 P. 250. The P. W. A. cannot repudiate and vary the state law, merely because it is a Federal agency. The whole record indicates much haste and disregard for statutory enactments, discountenanced by all the courts. Redmond Realty Co. v. Central Oregon Irrigation District, (Ore.) 12 P.2d 1097; Chapter 122, Article 732, R. S. 1931; 67 C. J. 1317. The refusal to credit the amount paid for current expenses has the effect of increasing the assessments of benefits against the members of the district. Donovan v. Owen, 49 Wyo. 405. Confirmation proceedings of an irrigation district not appealed from are conclusive as to the proceedings prior thereto, unless it be determined that the court was without jurisdiction. American Falls Reservoir District v. Thrall, (Idaho) 228 P. 236; Louden Irrigating Canal Co. v. Handy Ditch Co., (Colo.) 43 P. 535; McGovern v. United States, 180 F. 73. A void order or judgment is open to collateral attack, and its affirmance on appeal cannot make it valid. Crawford v. Pierse, 185 P. 315. The attempted adjudication here was improper. 34 C. J. 902; Bijou District v. Valley Ditch Company, (Colo.) 184 P. 382; 34 C. J. 906. The contract does not except acts of God from liability. On the face of the record, we submit that the objectors are entitled to have the district affairs put in shape; the commissioners' powers defined and the most recent order reversed. The case should be remanded with directions to compel the proper legal proceedings.

For the respondent, there was a brief and an oral argument by Mr. E. J. Goppert of Cody.

Orders fixing time and place of hearing and manner of giving notice thereon in irrigation district proceedings can be entered by a judge who had been sworn off previously to the filing of the report and petition, upon which said hearing is to be had. Any order entered thereon after a hearing had pursuant to such notice is within the court's jurisdiction and valid. 67 C. J. 133. Gilman, Adm'r. v. Donovan, 59 Iowa 76, 12 N.W. 779; State v. Braun, (Wis.) 245 N.W. 176; Tucker v. State, 35 Wyo. 430; 1 C. J. S. 945; 1 C. J. S. 1094; Roe v. Boyle, 81 N.Y. 305. A civil action includes all ordinary civil proceedings, except proceedings which were never regarded as actions at law or suits in equity. It does not include a statutory special proceeding, nor a special proceeding in rem. 1 C. J. 945; 1093, 1094; Roe v. Boyle, 81 N.Y. 305; Barger v. Cochran, 15 Ohio R. 461. The following authorities show the distinction between special proceedings and civil actions. Williams v. Grundysen, 53 Minn. 346; Miller v. Bode, 139 N.E. 456; Dow v. Lillie, (N. D.) 144 N.W. 1082. Any judge who considers and determines a report and petition in an irrigation district proceeding, can revise, modify or change any previous order entered therein, provided that notice of such intended action be properly given. Secs. 122-721, 729, R. S. 1931; Sullivan v. Blakesley, 35 Wyo. 73. The matters covered by an amended report and petition of the commissioners filed pursuant to Secs. 122-721 and 729, R. S. 1931, and the notice of hearing as given, limit the questions involved at the subsequent hearing had thereon. Donovan v. Owen, 49 Wyo. 405. The order entered June 2, 1937, approving the Phelps right-of-way agreement is valid. Yaden v. Gem Irrigation District, 216 P. 250; Bottoms v. Irrigation District, supra. No election is required in an irrigation district to authorize approval of assessments for benefits and for construction, nor for issuance of bonds therein, unless the same be the taking over of a United States reclamation project. Irrigation District v. Browne, (Cal.) 13 P.2d 921; 67 C. J. 1646. Ordinary expenses may be included in the cost of construction of the project. We take this to mean all expenses up to and including the final building of the project. Sec. 122-714, R. S. 1931. In re Bear River Irr. Dist. v. Stewart, (Wyo.) 65 P.2d 686. Bonds cannot be issued in excess of the assessments for construction. Sec. 122-731, R. S. 1931. The appeal should be dismissed. This is a special proceeding. No appeal lies from an irrigation district hearing under the Wyoming law, excepting from those involving hearings on creation of the district and on the matter of approval of assessment rolls. This cause covers none of the exceptions noted. The order of June 12, 1937, was not appealable. State v. Rosenwald Bros. Co., (N. M.) 170 P. 42.

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

OPINION

BLUME, Chief Justice.

The Greybull Valley Irrigation District was organized in 1920, and assessments for benefits were confirmed in 1921. The district was unable to sell its bonds, and nothing further of importance was done in the matter until the district, seemingly in 1934, opened up negotiations with the Government of the United States, for the purpose of procuring from the latter a grant and an agreement to purchase the bonds of the district. These negotiations resulted in a contract, entered into in 1935, referred to as bearing date April 23. The date so far as the record shows is uncertain. But that is immaterial. Under the contract, the Government of the United States agreed to purchase the bonds of the district in the principal sum of $ 845,000, and to make a grant to the district of approximately $ 300,000. In view of these negotiations, the commissioners of the district on April 21, 1935, filed their petition, praying for the reinstatement of all assessments for benefits, as originally fixed, without change. On July 5th of that year the court entered an order changing the assessments to some extent, but generally confirming the assessments previously made. An appeal was taken therefrom. The order was reversed by this court on February 25, 1936. 49 Wyo. 395, 54 P.2d 808. We expressed our opinion to the effect that future proceedings in the case should include a general re-assessment, to be reported for confirmation. The commissioners of the district thereupon, and on March 11, 1936, filed their report showing a re-assessment of benefits and assessments for construction, a description of the new boundaries of the district and other matters. On the same day on which the report was filed the Hon. P. W. Metz, Judge of the Fifth Judicial District, entered an order, requiring notice of the report and petition to be given and setting it for hearing on April 9th, 1936. On April 2nd, 1936, certain objectors, appellants herein, 43 in number, filed a motion, supported by affidavit, for a change of judge in the cause on the ground of bias and prejudice of the presiding judge of the district. Like objections were made to the Hon. C. D. Murane, Judge of the Eighth Judicial District. Thirty or more other objectors did not join in the motion. Thereupon, and on April 8, 1936, the Hon. P. W. Metz, the presiding judge of the district, made a general assignment of cases in Big Horn County, Wyoming, assigning the Hon. Harry P. Ilsley to preside in these cases, the order being as follows:

"Whereas there are certain matters and cases pending in said court that require the attention of another judge, other than the presiding judge of said district, Now therefore, it is hereby ordered that the Hon. Harry P. Ilsley, Judge of the Sixth Judicial District of the State of Wyoming, be and he is hereby designated and requested as Judge, to hear, try and determine, and make and enter judgments or orders in any cases, civil, criminal or probate, or any other matters that may be called to his attention by the attorneys in said court, while at Basin, Wyoming, during the February, A. D. 1936 term of said court."

On April 9, 1936, the report and petition of the commissioners above mentioned came on for hearing before Judge Ilsley. The objections of some of the objectors were sustained in whole or in part. The assessment roll submitted to the court was rejected, the court holding that the rule adopted by the commissioners in making the assessments was erroneous, but the commissioners were authorized to re-classify the lands in the district and to make reassessments. That was done, and an amended report was filed by the commissioners of the district on August 19, 1936. By order of Judge Metz, this amended report was set for hearing on September 11, 1936, and notice of the filing of the report was ordered to be given. O...