In re Secondary Road Dist. No. 11 of Clay County
| Decision Date | 29 September 1931 |
| Docket Number | 40740 |
| Parties | IN RE SECONDARY ROAD DISTRICT NO. 11, CLAY COUNTY. JOHN H. JOHNSON, Appellant, v. BOARD OF SUPERVISORS OF CLAY COUNTY et al., Appellees (and three other cases) |
| Court | Iowa Supreme Court |
REHEARING DENIED JANUARY 20, 1932.
Appeal from Clay District Court.--F. C. DAVIDSON, Judge.
Four cases, in one of which John H. Johnson is the plaintiff, in another of which C. F. Conrad is the plaintiff, in another of which Warren Doyle and Jennie Doyle are plaintiffs, and in the other of which O. Oberg is the plaintiff, were consolidated in the trial court for the purposes of trial but a separate decree was rendered in each case. These cases are submitted under the same record and will be disposed of in one opinion. The material matters are set forth in the opinion. The petition in each of the cases was dismissed and the plaintiffs appeal Affirmed in part. Reversed in part.
Affirmed in part. Reversed in part.
George A. Heald, Jr., for appellants.
Baldwin & James and Cornwall & Cornwall, for appellees.
WAGNER J. FAVILLE, C. J., and DE GRAFF, ALBERT, KINDIG, and GRIMM, JJ., concur.
On May 4th, 1920, the Board of Supervisors of Clay County, upon the petition of interested property owners, by resolution established a road district, designated and to be known as Secondary Road District Number 11. The petition and resolution of the board contemplated the graveling of three miles of secondary highways, as authorized by Chapter 237, Laws of the 38 G. A. Following the establishment of the district, a contract was entered into with a construction company for the graveling of the highway. Only a mile and a half of said highway had been brought to grade. Upon the completion of the graveling of the mile and a half, which had been previously graded, warrants were issued to the contractor for the full amount of the work done and said warrants were paid by the county treasurer out of the funds of the county. Nothing further appears to have been done until October 29th, 1928, when commissioners were appointed by the board of supervisors to make tax assessments on secondary road districts, including Number 11. On February 2nd, 1929, the commissioners reported. Following the filing of the report of the commissioners, statutory notice was duly given, fixing the hearing thereon at the courthouse in Spencer for March 25th, 1929. Each appellant appeared before the board of supervisors at the time fixed for such hearing and filed objections to the levying of an assessment against his land located within the district. The objections filed by the respective appellants were, for the purposes of this case, substantially the same. The board of supervisors overruled the objections made by the appellants and approved and confirmed the assessments against the real estate as made by the commissioners, assessing against 160 acres owned by Johnson the sum of $ 196.20, against 280 acres owned by Conrad the sum of $ 313.80, against 160 acres owned by the Doyles the sum of $ 175.40, against 160 acres owned by Oberg the sum of $ 178.90.
Relative to taking an appeal, the statutory law, Section 4753-a5, Code, 1927, provides:
" Any owner of land may appeal to the district court from the order of the board of supervisors in levying the assessment against his real estate, by filing with the county auditor within fifteen days from the date of such levy, a bond conditioned to pay all costs in case the appeal is not sustained, and a written notice of appeal * * *."
The trial court dismissed the petition and appeal of the appellant Oberg for noncompliance with the aforesaid statute in his attempted appeal. Oberg gave the written notice and filed a purported bond. However, said purported bond does not bear the signature of the surety. The affidavit of qualification thereto attached is signed by J. H. Johnson, in which he states "that I am surety in the above bond," etc. The giving of the written notice is not alone sufficient to confer jurisdiction upon the district court of his attempted appeal. In conjunction with the notice, a bond signed by a surety, or sureties, must be filed within the prescribed time. See Minton v. Ozias, 115 Iowa 148, 88 N.W. 336. The question as to the sufficiency of the bond and the jurisdiction dependent thereon was raised by an amendment to the answer. It is unnecessary for us to determine whether the signature attached to the affidavit of qualification is sufficient to constitute a signature in fact to the bond; for, assuming, without deciding, that it would constitute a signature to the bond, in that event, the giving of the bond was too late to perfect his appeal. The action of the board from which the attempted appeal was taken, to wit, the levying of the assessment, occurred June 13th, 1929, and the qualification attached to the bond was signed by Johnson sixteen days thereafter, to wit, June 29th, 1929; whereas, the aforesaid statutory law requires the giving and filing of a bond within fifteen days from the date of the levy. It is therefore apparent that the district court obtained no jurisdiction of his attempted appeal. Therefore, the court was clearly right in dismissing said appellant's petition and appeal, and the matters urged by said appellant need no further consideration. No question as to the jurisdiction of the district court to determine the appeals of the remaining appellants was raised.
The appellant Conrad was the owner of 280 acres at the time of the presentation of the petition for establishment of the district, but had sold and conveyed the same to Scothorn prior to the action taken by the board of supervisors establishing the district. Conrad has since reacquired said real estate by reason of foreclosure proceedings. As to 160 acres upon which an assessment has been made, the appellant Johnson has at all times been the owner. As to another 160 acres upon which an assessment has been made, the appellants Warren Doyle and his wife, Jennie Doyle, as tenants in common, have at all times been the owners.
These appellants raise the issue that the publication of the notice for the hearing upon the question of the establishment of the district was insufficient to give the board of supervisors jurisdiction as to them, or the owners of aforesaid real estate at said time, and it is their contention that, no jurisdiction as to them having been obtained for the establishment of the district, the establishment of the district and all subsequent proceedings are void as to them.
Relative to the character of the notice required and the manner of service thereof, Section 47, Chapter 237, of the Laws of the 38th G. A., provides:
(Writer's italics).
A purported notice was published in the newspaper and due proof thereof by affidavit was made. The notice, as published, was directed to Warren and Jennie Doyle, John H. Johnson and J. W. Scothorn, the latter then being the owner of the real estate now owned by the appellant Conrad. The exact contention of the appellants on the jurisdictional question is that the notice as published does not "fix a time for hearing." As to this matter, the notice provides:
It will be observed that the foregoing notice states that the hearing will be had May 4th, at 1:30 p.m., but fails to state the year; and the question presented for our determination is as to whether said omission is fatal as to jurisdiction on the part of the board to act in the establishment of the district on May 4th, 1920.
Any notice imparted by reason of the publication would necessarily be only constructive notice. It is the universal holding of this court that, in order for the published notice to constitute constructive service of the notice, the requirements of the statutory law must be strictly complied with. This proposition needs no citation of authorities, but see Ann. to the Code of Iowa, Vol. 1, page 1187, and the authorities there cited. Also see Incorporated Town of Carpenter v. Joint Drainage District No. 6, 198 Iowa 182; Chicago & Northwestern Railway Company v Sedgwick, 203 Iowa 726, 213 N.W. 435; Minneapolis & St. Louis Railway Company v. Board of Supervisors of Marshall County, 198 Iowa 1288, 201 N.W. 14. In Incorporated Town of Carpenter v....
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