Mitchell v. Power

• Decision Date: 18 April 1927
• Docket Number: Civil 2624
• Citation: 255 P. 481,32 Ariz. 1
• Parties: W. W. MITCHELL, Appellant, v. J. O. POWER, R. W. SIMKINS and FRED WILSON, Appellees
• Court: Arizona Supreme Court

255 P. 481

32 Ariz. 1

W. W. MITCHELL, Appellant, v. J. O. POWER, R. W. SIMKINS and FRED WILSON, Appellees

Civil No. 2624

Supreme Court of Arizona

April 18, 1927

APPEAL from the judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Affirmed.

Messrs Kibbey, Bennett, Gust, Smith & Lyman, for Appellant.

Messrs Dougherty & Dougherty, for Appellees.

OPINION

ROSS, C. J.

The plaintiff and appellant, Mitchell, as the owner of lands in agricultural improvement district No. 3, Maricopa county Arizona, brought this action against the board of directors of such district, to wit, J. O. Power, R. W. Simkins and Fred Wilson, defendants and appellees, charging that said district was not legally organized, and that its proposed bond issue is void. The relief sought was an adjudication of the legality of the organization of the district and of the bond issue.

The complaint sets out in detail the steps taken in the organization of the district, showing, in general, that an effort was made to conform with the requirements of the Agricultural Improvement District Act (chapter 23, Laws of 1922, Special Session); the act authorizing the organization of improvement districts. The complaint alleges that certain of such steps (sixteen, in fact) were not taken in accordance with the provisions of the Improvement Act, and that the omissions and irregularities were of such a character as to effect the substantial rights of the plaintiff. The complaint also shows that long before it was filed the board of directors of the improvement district instituted an action in the superior court of Maricopa county, in proper form, to determine the validity of the proceedings for the organization of the district and the validity of its bond issue, and that in said action judgment was made and entered to the effect that the district was regularly and legally organized, and that the bonds were ordered issued in all respects in accordance with the provisions of the Improvement Act. This judgment was made and entered February 16, 1925, and from it no appeal was ever taken. In fact, no interested party appeared to contest the action.

The defendants demurred to the complaint on the ground that it failed to state facts sufficient to constitute a cause of action. The demurrer was sustained, and, plaintiff choosing to stand on his complaint, final judgment dismissing it was entered, from which judgment he appeals.

The first sixteen assignments of error raise questions that were directly involved in the confirmatory proceeding, and were actually and necessarily passed upon by the court and decided against the contentions herein urged. The defendants contend that to that extent at least the present suit is a collateral attack upon such confirmatory judgment, and for that reason may not be entertained.

Section 10 of the Improvement Act provides that the organization of an improvement district and the election of its board of directors may be contested by any person owning property within the district, liable to assessments for the purposes of the district, but that such contest must be brought in the proper court within twenty days after the canvass of the vote and the declaration of the result by the board of supervisors. It also provides that either party to any such contest shall have the right of appeal.

Neither the plaintiff nor any other property owner of the district filed any contest under this section. The confirmatory proceedings instituted by the board of directors, and in which the judgment approving the district's organization and the proposed bond issue was entered, were begun and prosecuted under section 45 of said Improvement Act. This section reads as follows:

"The board of directors shall, within thirty days after the entry of the order directing the issue of any bonds herein provided for, bring an action in the superior court of the county wherein is located the office of such board, to determine the validity of any such bonds. Such action shall be in the nature of a proceeding in rem and jurisdiction of all parties interested may be had by publication of summons for at least once a week for three weeks in some paper of general circulation in the county where the action is pending, such paper to be designated by the court having jurisdiction of the proceedings. Jurisdiction shall be complete in thirty days after the first publication of such summons in the manner herein provided. Anyone interested may at any time before the expiration of said thirty days, appear and by proper proceedings contest the validity of such bonds. Such action shall be speedily tried and judgment rendered declaring such bonds either valid or invalid. Either party shall have the right to appeal at any time within thirty days after the entry of such judgment, which appeal must be heard and determined within three months from the time of taking such appeal."

The plaintiff ignored the opportunity, given him by section 10, supra, to contest the regularity and legality of the proceedings organizing the district, and also the election of the district's managing directors. He paid no attention to the suit brought under section 45. Having failed and neglected to file contest, as he might have done under section 10, or to appear and contest the validity of the bonds as provided in section 45, he has waived or lost the right to raise the question of the validity of the proceedings organizing the district or the validity of the bond issue by an independent suit such as he has undertaken here, if we give full force and effect to the legislative language as contained in section 46 of the Improvement Act reading as follows:

"The court hearing any contest herein provided for, in inquiring into the regularity, legality, or correctness of such proceedings, must disregard any error, irregularity, or omission which does not affect the substantial rights of the parties to such action or proceeding. The rules of pleading and practice provided by the laws of this state, so far as not inconsistent with the provisions of this Act, shall be applicable to all actions or proceedings herein provided for. No contest of any matter or thing herein provided for shall be made other than within the time and in the manner herein specified."

In view of these provisions of the Improvement Act, the plaintiff, in so far as he attacks the proceedings before the board of supervisors and their actions, orders and directions in the organization of the district, or in the appointment or election of the board of directors, or in the proceedings by the board of directors or the board of supervisors looking to the bond issue, is trying to do something which the law forbids.

"No contest of any matter or thing herein provided for shall be made other than within the time and in the manner herein specified." From section 46, supra.

Plaintiff's action is not only a collateral attack upon such proceedings, but seeks in an independent action, at a time and in a manner expressly prohibited, to have an adjudication of questions already determined and adjudicated in another proceeding. This the law will not permit. 3 Kinney of Irrigation and Water Rights, section 1408 (second edition), says:

"It is therefore generally held that where a reputed irrigation district is acting under the forms of law, unchallenged by the state, the validity of its organization cannot be attacked, either directly or collaterally by a private individual. And, furthermore, it is held that, where proceedings were duly brought, under the confirmation act, to which the state might have made itself a party, and, not having appeared, a judgment validating the proceedings was res judicata against it; and therefore even the state itself could not thereafter question the validity of the organization of such district in quo warranto proceedings brought in the name of the people of the state by the attorney general."

Improvement districts organized under the Improvement Act have for their general purpose the acquisition of a permanent water supply, as also proper means for drainage, and we can see no reason why the rule announced by Kinney and by the courts generally should not be just as applicable to such improvement districts as to irrigation and drainage districts. All such districts obtain their powers from the state, and cannot be divested of those powers, nor may the right to exercise them be questioned in any manner, or at any time, or by any...