Nelson v. Board of Com'rs of Davis County

• Decision Date: 14 September 1923
• Docket Number: 4028
• Citation: 218 P. 952,62 Utah 218
• Parties: NELSON v. BOARD OF COM'RS OF DAVIS COUNTY et al
• Court: Utah Supreme Court

218 P. 952

62 Utah 218

NELSON v. BOARD OF COM'RS OF DAVIS COUNTY et al

No. 4028

Supreme Court of Utah

September 14, 1923

Original application by James E. Nelson, for a writ of prohibition, directed to the Board of County Commissioners of Davis County, Utah, and others.

PEREMPTORY WRIT ISSUED.

Ray &amp Rawlins, of Salt Lake City, for plaintiff.

Frank A. Johnson, of Salt Lake City, amicus curiae.

GIDEON J. WEBER, C. J., and THURMAN, FRICK, and CHERRY, JJ., concur.

OPINION

GIDEON, J.

This is an original proceeding in this court asking for a writ of prohibition against the defendants.

Defendants Winegar, Holt, and Stevenson are county commissioners of Davis county, and are charged with the duty of levying a tax against the property within the boundaries of the defendant Bonneville irrigation district. The defendants Howard, Nelson, and Parkin are the directors of the Bonneville irrigation district, and as such are charged with the duty of preparing a budget each year for the district, and certifying the same to the county commissioners, upon which the commissioners levy the tax against the real property in the district. The remaining defendant is the county assessor of Davis county. He is charged by law with the duty of assessing the property within the district.

The facts appearing in the petition, and upon which the relief sought is based, are stated in the brief of plaintiff as follows:

"The Bonneville irrigation district was organized in 1920, under the provisions of chapter 68, Laws Utah 1919. The district has outstanding bonds providing for annual interest payments, and a sinking fund for the retirement of the bonds. Petitioner is a landowner within the district. For the year 1922 the directors of the district fixed a budget for the purpose of meeting the expenses of the district and paying the interest and sinking fund for the current year 1922. This budget being certified to the county commissioners was, under section 19 of the Irrigation District Act, increased by 15 per cent. for the purpose of covering delinquencies, and thereby became the basis of the levy. Under the law each acre-foot of water allotted within the district paid the same amount of tax. Petitioner had been allotted .50 of an acre-foot of water, was assessed for the year 1922 upon the above basis $ 8.07, which tax petitioner paid within the time provided by law. The total assessment for 1922 for all purposes was $ 122,864.75. Of this amount only $ 19,573.23 was paid by the landowners. The amount of bond interest for 1922 was $ 43,500.00 and the amount of the sinking fund for 1922 was $ 18,125.00. Applying the proper percentage to bond interest and sinking fund collected left a deficit in bond interest collected of $ 35,526.61 and of sinking fund collected of $ 14,802.75. To the 1923 budget the board of directors of Bonneville irrigation district have added the two items of 1922 uncollected bond interest and sinking fund and certified the same to the county commissioners. To this budget in due course the commissioners propose to add 15 per cent. and distribute the tax so fixed equally between the allotted acre-feet. It will thus result in petitioner, who paid the full tax assessed against his land for the year 1922, being required to pay a proportion of the uncollected tax for 1922 or suffer his lands to be sold for the tax."

An alternative writ of prohibition was issued. By answer the commissioners admit the allegations of the affidavit and petition, pray for judgment that the alternative writ of prohibition be quashed and that the petition be dismissed. The Bonneville irrigation district and its directors demur to the petition and move to quash the alternative writ.

In that state of the record the matter is submitted to this court for determination. Neither of the defendants has filed any brief or argument. A brief of amicus curiae is filed in opposition to the making of the writ permanent. The legal question presented is clearly stated in the brief of amicus curiae as follows:

"The question at issue in this proceeding is whether or not, under the Irrigation District Act of the state of Utah (chapter 68, Laws Utah 1919, as amended by chapter 73, Laws Utah 1921) a budget can be certified by the directors of an irrigation district, and a tax levied by a board of county commissioners in one year to include the delinquencies of a previous year. In other words, whether a cumulative levy can be made so that the property of one landowner can be made liable for its proportion of delinquencies arising from refusal of others to pay assessments on their lands."

It will be controlling of this case to determine whether the bonded indebtedness of an irrigation district partakes of the nature of a general municipal indebtedness or is severable and partakes of the nature of an indebtedness for local improvements.

Chapter 68, Laws Utah 1919, as amended by chapter 73, Laws Utah 1921, in its main features, is the same as chapter 74, Laws Utah 1909. The objects sought to be accomplished by the two acts are the same, namely, some means of conserving and developing water and applying the same to the arid lands of the state to make them productive. The Legislature, by the acts mentioned, sought to devise some scheme or method to defray the expenses incident to conserving and applying the waters of the state to the irrigation of lands included in a particular locality.

This court, in Lundberg v. Irr. Dist., 40 Utah 83, 119 P. 1039, in discussing and answering the argument that the provisions of chapter 74, Laws Utah, 1909, violate the provisions of sections 2 and 3 of article 13 of the state Constitution, which provides that all property shall be "taxed according to its value" and at a "uniform and equal rate," at page 89 of 40 Utah at page 1041 of 119 P., says:

"The answer to this contention is that, in adopting the constitutional provision referred to, it was not intended that it should apply to special assessments. The assessment objected to in this case is not one made under this constitutional provision but is what is usually denominated a special assessment based upon benefits accruing to the land which is assessed."

Moreover, the general spirit of the entire act seems to negative the claim or argument that it was intended by the Legislature that the indebtedness should be an obligation chargeable against all of the property in the district as a general municipal liability.

The method to be followed in the organization of an irrigation district is set out in detail in the first sections of chapter 68, Laws Utah 1919. The machinery may be set in motion either by the Governor of the state, or upon petition of a designated number of owners of lands or holders of title or evidence of title to lands requiring water in a proposed district. It is then made the duty of the state engineer to cause--

"to be made a water survey of all lands within the district for the purpose of determining and allotting the maximum amounts of water which could be beneficially used on such lands. * * * On completion of said survey and allotment, the state engineer shall file with the board of county commissioners with which the petition for the said district is filed, his return of survey and report of allotment."

After the filing of the report of the state engineer, it is made the duty of the county commissioners to cause to be published a notice that a petition for an irrigation district has been filed, and water survey and allotment made. In that notice a date shall be set for hearing applications for exclusion and inclusion of lands and revision of allotments. The commissioners shall then--

"proceed to determine and list the lands by acreage and ownership in each 40...