Kerr v. Chilton, 49489
| Decision Date | 28 July 1958 |
| Docket Number | No. 49489,49489 |
| Citation | 91 N.W.2d 579,249 Iowa 1159 |
| Parties | C. R. KERR and Hildegarde Kerr, Appellees. v. Theodore CHILTON, Ardell Smith and Eugene Morse, as Trustees of Garretson Drainage District of Woodbury County, Iowa, Appellants. |
| Court | Iowa Supreme Court |
Princhard & Princhard, Onawa, for appellants.
Thomas J. Griffin, Sioux City, for appellees.
The question presented is whether the cost of repairs to lateral drains in a drainage district, made under section 455.135, Code 1954, I.C.A., is to be assessed against lands in the entire district or against only the lands originally assessed for construction of the laterals. We affirm the trial court's decree that only the lands originally assessed for construction of the laterals--and benefited thereby--are to be assessed.
Plaintiffs own land in Garretson Drainage District, Woodbury County, established about 1924. Defendants are trustees of the district. Pursuant to Code, § 455.48, I.C.A., percentages and assessment of benefits and apportionment of costs of construction of lateral drains were fixed on the same basis as if each lateral was a subdistrict. For many years thereafter the cost of repairing each lateral was assessed on the same basis, against the land benefited thereby, not against all the land in the district. In recent years, however, the trustees have assessed the cost of repairs to laterals against all the lands in the district and propose to do so in the future notwithstanding demand by plaintiffs that the method formerly employed for many years be followed. Under the method now used plaintiffs are assessed for cost of repairs to laterals several miles from their land. No reclassification of benefits has ever been attempted. None of the past or contemplated future repairs exceeds in cost 25 per cent of the original cost of the improvement.
Upon these agreed facts defendants were enjoined from assessing all the lands in the district for the cost of repairs or improvements to laterals and were required to assess such costs only to the lands benefited by the lateral as shown by the original classification and in the percentages therein fixed.
The propriety of this form of action is not questioned and we assume it is proper.
The controversy calls for the application and interpretation of various provisions of Code chapter 455, I.C.A.
It is clear the assessment of benefits and apportionment of costs of constructing lateral ditches in the first instance are on the same basis as if each lateral was constructed as a subdistrict and there must be reported separately 'The percentage of benefits and amount accruing to each forty-acre tract or less on account of the construction of such lateral improvement.' Section 455.48(2), Code 1954, I.C.A. To like effect is section 455.51.
Section 455.56 provides, with exceptions not here applicable: 'A classification of land for drainage * * * purposes, when finally adopted, shall remain the basis of all future assessments for the purpose of said district unless revised by the board in the manner provided for reclassification, * * *.'
Defendants' suggestion that the language just quoted applies only to procedure to be followed in the original establishment of the district or to an additional assessment to pay the original cost cannot be accepted. Defendants concede the provision applies to assessments to pay the cost of repairs to the main ditch. We think it applies, as its language states, to 'all future assessments' for whatever purpose.
Section 455.59, which provides for an additional assessment if needed to pay the original cost or for repairs, states:
Chapter 223, Acts 57th General Assembly (section 455.72, Code 1958, I.C.A.), approved April 30, 1957, applicable here, provides in part that when repair of the improvements of an established drainage district has become necessary the board may order a reclassification if it finds the existing assessments are inequitable as a basis for paying for the repair.
Section 455.135, under which defendants have repaired the lateral drains in the district and propose to do so in the future is much too long to set out here and contains nothing which bears directly on our problem. The section has been before us in several recent cases. Boards of Trustees of Farmers Drainage District v. Iowa Natural Resources Council, 247 Iowa 1244, 1251, 78 N.W.2d 798, 803, and citations.
Under 455.135 no notice to landowners of contemplated improvements is necessary where the estimated cost thereof does not exceed 25 per cent of the original cost of the district and subsequent improvements. If such estimated cost exceeds 25 per cent, notice and a hearing are required and following the hearing the board shall 'determine whether there should be a reclassification of benefits for the cost of such improvement.' As previously stated, no reclassification of benefits has ever been attempted here and the cost of any prior or contemplated future repair or improvement does not exceed 25 per cent of the original cost.
Section 455.136 contains this language upon which defendants strongly rely:
We think defendants claim too much for this language. It does not state how the funds of the district used to pay for repairs under 455.135 are to be obtained nor the method by which the assessment shall be levied. In any event 455.136 must be read and considered in connection with the entire chapter 455 in determining the legislative intent. If reasonably possible, effect should be given every part of the chapter. Board of Park Commissioners of City of Marshalltown v. City of Marshalltown, 244 Iowa 844, 851, 58 N.W.2d 394, 398, and citations. See also Lever Brothers Co. v. Erbe, 249 Iowa ----, 87 N.W.2d 469, 479, and citations; Deere Mfg. Co. v. Iowa Emp. Sec. Comm., 249 Iowa ----, 90 N.W.2d 750. When this is done it seems fairly clear that under the agreed facts here assessments for the cost of repairs should be on the basis of the original classification.
In addition to the language we have quoted from 455.136 defendants rely upon the repeal in 1949 by section 26, chapter 202, Acts 53d General Assembly, of section 455.140, Code 1946, I.C.A. This repealed section (7561, Codes 1924 to 1939) provided in substance that the cost of cleaning out any specific open ditch or main 'must be assessed to the lands in the whole district in the same proportion as the costs * * * of such specific open ditch was originally assessed' and the cost of restoring any tile line or tile lateral to its original efficiency 'must be assessed to the lands benefited by such specific tile line or tile lateral in the same proportion as the original cost thereof.'
Defendants argue in effect this repealed section clearly provided that cost of repairs to lateral open ditches be assessed on the basis of the original classification and the repeal indicates a legislative intent to change the law in this respect. It is not so clear this provision applied to cost of repairs upon lateral open ditches. The word 'tile,' italicized in the preceeding paragraph, just before 'lateral,' was inserted by way of amendment by section 1 of chapter 210, Acts of the 43d General Assembly, in 1929. If defendants' argument were followed this might indicate a legislative intent to confine the provision to tile laterals. Further, the 53d General Assembly did not repeal provisions herein referred to other than 455.140 and they, especially 455.56, remain in effect.
There are other sections of chapter 455 that indicate a legislative intent that all future assessments shall be on the basis of the original classification, as provided by section 455.56, until there is a reclassification of benefits. For example, section 455.146 states that if the amount charged against a district for improvement of a common outlet for two or more districts does not exceed 25 per cent of the original cost of the improvement in the district charged, the amount shall be levied against all lands in the district in accordance with the original classification and apportionment. If the...
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