O'Neill v. Yellowstone Irr. Dist.
| Citation | 121 P. 283,44 Mont. 492 |
| Parties | O'NEILL v. YELLOWSTONE IRR. DIST. et al. |
| Decision Date | 25 January 1912 |
| Court | Montana Supreme Court |
Appeal from District Court, Rosebud County; Sydney Fox, Judge.
Action by Thomas J. O'Neill against the Yellowstone Irrigation District and another. From a judgment of dismissal, plaintiff appeals. Reversed.
G. A Horkan, for appellant.
Gunn Rasch & Hall, for respondents.
The plaintiff is a resident of Rosebud county. He is the owner of farming land situate therein, and within the boundaries of the defendant the Yellowstone Irrigation District, subject to taxation for the purpose of maintaining the district and paying the principal and interest on an indebtedness of $250,000, which it has contracted, or is about to contract by issuance and sale of its bonds. The district was organized under authority of the act of the Eleventh Legislative Assembly (Session Laws 1909, c. 146, p. 254), entitled "An act to provide for the creation, organization, government and extension of irrigation districts," etc. Relief is sought by plaintiff in his own behalf and in behalf of all other landowners similarly situated. He recites in his complaint with much detail the proceedings resulting in the organization of the district, as well as those of its board of managers in the conduct of its affairs, from the time of its organization to the bringing of this action. He brings in question the validity of the legislation itself on constitutional grounds, and therefore the legal capacity of the district. Upon the assumption that he cannot successfully maintain his contention in this regard, he also assails the validity of the proceedings had for the establishment of the district, as well as the various acts of its governing board in connection with the administration of its affairs, particularly with reference to the issuance and disposition of the bonds mentioned to provide funds necessary to accomplish the purpose of the organization. The Sanders Co-operative Ditch Company, a corporation, hereafter referred to as "the company," is made defendant for the purpose of having declared invalid a transaction between it and the district, whereby the board of commissioners of the district, in consideration of a conveyance to it by the company of all of its property, consisting of water rights, canals, flumes, headgates, rights of way, franchises, etc., situate within the district, delivered to the company $83,500 of the bonds of the district. The district court sustained a general demurrer to the complaint, and entered judgment dismissing the action. The plaintiff has appealed.
In order to understand the controversy it will be necessary to refer to some of the provisions contained in the act. Section 1 provides that a majority in number of the holders of title or evidence of title to lands susceptible of irrigation from the same general source and by the same general system of works, such holders of title or evidence of title also representing a majority in acreage, may propose the establishment and organization of an irrigation district. The latter part of the section declares what evidence of title shall be sufficient, and by way of proviso excludes such lands as are already under irrigation or can be irrigated more readily from other sources, unless the owners of such lands give their consent in writing to have them included.
Section 2 provides that the proceedings for the establishment of the district shall be initiated by filing with the clerk of the district court a petition signed by the requisite number of owners, setting forth (1) the name of the proposed district; (2) a general description of the lands to be included; (3) the names of the owners, and, if any owner is not a resident of the county or one of the counties in which the district lies, his post office address; (4) the source from which the lands included are to be irrigated, and the character of the works, water rights, canals, and other property which it is the purpose to acquire for the irrigation of the included lands; and (5) a prayer that the lands described be organized as an irrigation district. The petition must be accompanied by a map or plat of the district, and a bond or undertaking, to be approved by the district court or judge, conditioned to pay all costs of the proceeding in case the organization of the proposed district is not effected.
Section 3 provides that the court or judge shall fix the time and place for the hearing of the petition, and direct a notice to be given by the clerk, by publication for two weeks in a newspaper in the county in which the district lies of a copy of the petition and a notice of the time and place of hearing. If any portion of the district lies in another county, then publication shall also be made in such other county. Publication must begin at least 30 days prior to the date of hearing. The clerk is required to mail copies of the petition and notice to all nonresident owners of lands lying within the district. Proof of notice must be made by affidavit of the publisher.
Section 4 permits adjournments of the hearing from time to time for further notice or good cause, and also amendments to be made to the petition, either by the petitioners or other person or persons interested. All persons interested may appear and contest the necessity or utility of the proposed district or any part thereof. The court is required to hear and determine whether all the requirements of sections 1, 2, and 3 have been complied with, and for that purpose shall hear all competent and relevant testimony. It must be determined what lands shall be included and what excluded, the court making such changes in the boundaries of the proposed district as may be necessary for that purpose. If it is found that the petition substantially complies with the requirements of sections 1, 2, and 3, an order must be made, as follows: (1) Setting forth the finding and allowing the petition; (2) establishing the district; (3) giving an accurate description of the lands included; (4) dividing the district into three divisions; and (5) appointing three competent persons as commissioners, one for each division, to conduct the affairs of the district. This order is made conclusive upon all the owners of land in the district, and is "final unless appealed from to the Supreme Court within 60 days from the date of entry." Within 30 days a copy of it must be recorded with the county clerk and recorder of the county wherein the lands included within such district are situated; provided that there shall be omitted from such copy a description of lands not situated in the county in which such copy is filed. It is declared that the district so established is a public corporation for the promotion of the public welfare, and that the lands included therein shall constitute all the taxable and assessable property of such district for the purposes of the act.
The following sections declare the qualifications which the commissioners must possess; prescribe the manner of their organization; fix their compensation; define their duties and powers; and embody directions as to the course to be pursued in electing commissioners from time to time, in levying taxes for the maintenance of the district or for the purchase or acquisition of such property as may be necessary to effect the purposes of the corporation, and the mode to be pursued in the issuance and sale of bonds whenever it becomes necessary to obtain funds for the immediate use of the district. Reference to them, so far as may be necessary, will be made hereafter.
1. Counsel for plaintiff contends that the statute is violative of section 1, art. 4, of the Constitution, in that it confers powers and imposes duties upon the district court or the judge thereof which are legislative or executive in their character, or, in other words, that the powers conferred are nonjudicial. The provision of the Constitution referred to divides the powers of government into distinct departments, the legislative, executive, and judicial, and prohibits each department from exercising any powers properly belonging to either of the others. Hence, if the view advanced by counsel is correct, the district court was without authority to organize the district, the district has no legal existence, and the court should have sustained the action.
As was pointed out in State ex rel. Schneider v. Cunningham, 39 Mont. 165, 101 P. 962: "The purpose of the provision is to constitute each department an exclusive trustee of the power vested in it, accountable to the people alone for its faithful exercise, so that each may act as a check upon the other, and thus may be prevented the tyranny and oppression which would be the result of a lodgment of all power in the hands of one body." Each department must therefore refrain from asserting a power that does not belong to it, for the assertion of such power is equally a violation of the trust. Id. And it is apparent that one department cannot lawfully delegate any of its powers to another or to any person or body. State v. Holland, 37 Mont. 393, 96 P. 719; In re Weston, 28 Mont. 207, 72 P. 512; 6 Am. & Eng. Ency. Law (2d Ed.) 1022; Cooley's Const. Limitations, 163; Case of Borough of West Philadelphia, 5 Watts & S. (Pa.) 281.
In this act there is no delegation of legislative functions. The legislation is complete in itself. In enacting it the Legislature prescribed the conditions which must be complied with in order to effect the organization of the corporation and has declared that, when this compliance has been ascertained by the procedure prescribed for that purpose, the corporation is organized with the powers described in the act. Field v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294. In this...
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