Oliver v. Monona County

• Decision Date: 16 May 1902
• Citation: 90 N.W. 510,117 Iowa 43
• Parties: ADDISON OLIVER et al, Appellants, v. MONONA COUNTY, et al. ADDISON OLIVER, Appellant, v. MONONA COUNTY. ADDISON OLIVER, Appellant, v. MITCHELL VINCENT
• Court: Iowa Supreme Court

90 N.W. 510

117 Iowa 43

ADDISON OLIVER et al, Appellants, v. MONONA COUNTY, et al.

ADDISON OLIVER, Appellant, v. MONONA COUNTY.

ADDISON OLIVER, Appellant, v. MITCHELL VINCENT

Supreme Court of Iowa, Des Moines

May 16, 1902

Appeal from Monona District Court.--HON. WM. HUTCHINSON, Judge.

THESE three cases were tried together in the lower court. In the first, Oliver and others seek to enjoin further work in constructing a ditch under authority of the board of supervisors of defendant county, and to cancel and enjoin the collection of assessments on the property of plaintiffs for the construction of said ditch. The second case is an appeal by Oliver to the district court from the action of the board of supervisors in assessing on his land a portion of the expense of constructing said ditch. In the third case Oliver alone seeks to enjoin the contractor from constructing said ditch through his land. The court rendered a decree and judgment denying any relief to plaintiffs, and they appeal.

Affirmed.

George A. Oliver and Ira T. Martin for appellants.

W. L Smith, County Attorney, and Wright, Call & Hubbard for appellees.

MCCLAIN J. LADD, C. J. took no part.

OPINION

MCCLAIN, J.

The proceedings of the supervisors of Monona county in locating the ditch in question, which is named the "Wattles Ditch,"--the original survey therefor having been made by Wattles, as engineer, under the authority of the commissioner appointed by the county auditor to locate the ditch,--were instituted in 1886, under section 2, of chapter 186, of the Acts of the Twentieth General Assembly (McClain's Code, section 1865), by the filing with the county auditor of a petition purporting to be signed by more than 100 persons, including plaintiff Oliver, describing themselves as citizens and legal voters of said county, representing that certain lands in said county, described by their general location, were subject to overflow, and too wet for cultivation, and that the public health, convenience, and welfare would be promoted by draining, leveeing, and reclaiming the same, and asking that a commissioner be appointed to examine said district of land, locate such drains and other works as might be necessary and advisable for the reclamation of the same, or any part thereof, and report accurately the boundaries of the district of lands to be reclaimed by the proposed works, and land benefited, and that, on the coming in of such report, the works of drainage and reclamation of said district of lands, as the same should be found necessary or advisable, be ordered. The auditor, on the filing of this petition, appointed a commissioner, who made a report, showing by a plat the commencement, course, and termination of the proposed ditch as recommended by him, and the subdivisions of land through which the same should be constructed; and notice of this report was served on a number of persons, including plaintiff Oliver, whose lands were included by description in the commissioner's report and the notice. In 1888 the board of supervisors found that all the requirements of the law had been fully complied with, and that all the parties had been served with due notice of the same, and established the Wattles ditch, as recommended in a report of the commissioner subsequent to that referred to in the foregoing statement. Subsequently appraisers were appointed to classify the lands benefited by the construction of the ditch, and to make equitable apportionment of the expenses and cost of construction among the lands so benefited. The assessments made by these commissioners were directed to be entered upon the assessment books as against the lands described, and it is the enforcement of these assessments which, in the first case before us, is sought to be enjoined.

The validity of these taxes has already been before this court in the case of Butts v. Monona County, 100 Iowa 74, 69 N.W. 284, in which the plaintiff, who was also an owner of land covered by the same assessment, sought to enjoin the enforcement of these taxes as against his land, and the action of the lower court in refusing to grant relief was affirmed. Many of the questions argued in the case now before us were presented in that case, but some of those raised are now perhaps more fully presented, and other objections to the tax are apparently now raised for the first time.

Counsel for appellants insist that the original petition was not sufficient to confer upon the board of supervisors any jurisdiction to act, because it was not signed by 100 legal voters of the county, as required by the statute then in force (McClain's Code, section 1865, now embodied in Code, section 1952). It is not questioned but that there are apparently more than 100 signers to this petition, but evidence was presented in the lower court tending to show that some of the signers were women; that others were not residents of the county; that still others were persons of alien birth, who had not been duly naturalized; and that still others, who were residents and voters at the time of signing the petition, had ceased to be residents of the county when the petition was presented to the auditor. On the other hand, there was evidence tending to show that the petition, which was badly worn and somewhat mutilated at the time when it was offered in evidence, did not show all the names which were attached to it at the time it was filed with the auditor; several persons whose names were not found thereon testifying that they had signed the petition as presented. We think the claim that the petition was not signed by a sufficient number of voters may be disposed of without going into a consideration of this conflicting evidence. It is, no doubt, true that, if the petition did not purport to be signed by 100 persons claiming to be voters of the county, the board of supervisors would have acquired no jurisdiction to act, and that the subsequent finding that the petition was sufficient would not give the board jurisdiction; but it being conceded that the petition was apparently sufficient, the determination by the board, duly made of record, that it was in fact such as the law required,--involving, as it did, an adjudication as to whether 100 signers to the petition were voters of the county,--was an adjudication of fact, which cannot be inquired into in collateral proceedings. These facts distinguished the case from that of Richman v Board, 70 Iowa 627, 26 N.W. 24. It is to be noticed that we have before us no direct attack on the correctness of the action of the board in determining the sufficiency of the petition. There was no appeal from that determination, nor was it questioned by certiorari. It seems to be now too well settled to admit of controversy that when an inferior tribunal, such as this was, is authorized to determine a question of fact, such as the competency of the signers to such a petition to sign the same, its finding is an adjudication which cannot be impeached collaterally. In Commissioners v. Aspinwall, 62 U.S. 539, 21 HOW 539 (16 L.Ed. 208), the supreme court of the United States had before it a question as to the validity of bonds issued on a subscription for railroad stock made by the board of commissioners of a county, and which the board had authority to make only on the vote of a majority of the voters at an election at which the proposition should be submitted, and held that the determination of the question whether there was a majority vote in favor of the proposition was for the board of commissioners, and that their determination could not be collaterally assailed. In its opinion the court uses this language: "The right of the board to act in the execution of the authority is placed upon the fact that a majority of the votes had been cast in favor of the subscription, and to have acted without first ascertaining it would have been a clear failure of duty; and the ascertainment of the fact was necessarily left to the inquiry and judgment of the board itself, as no other tribunal was provided for the purpose." In Ryan v. Varga, 37 Iowa 78, this court had before it a similar question, involving a determination as to whether township trustees lawfully submitted to vote the proposition to levy such tax, which could only be submitted on the petition of one-third of the resident taxpayers of the township, and in the opinion uses this language: "But if in fact the petition was not signed by one-third of the resident taxpayers of the township, nevertheless we hold that after the trustees have decided that it was signed by the required one-third, and have ordered the election, which has been held, the aid voted and tax levied pursuant to it, the validity of such tax cannot be assailed on the ground that the petition was not signed by the requisite number of taxpayers. That fact can be re-examined and again decided only upon an appeal, writ of error, certiorari, or other method provided for the direct review of the decision made by the trustees. The decision of that question by the trustees is judicial; and since the statute gives them express and undoubted jurisdiction to determine it, their judgment becomes, like every other judicial determination conclusive until reversed or set aside by a direct proceeding in the manner provided by law. It cannot be assailed indirectly or collaterally, as is sought to be done in this case." The same principle was applied in this court in Bennett v. Hetherington, 41 Iowa 142, which was a case of similar character, and also in Baker v. Board, 40 Iowa 226, in determining the question whether the sufficiency of the petition for removal of the county seat could be questioned in an injunction proceeding, the board of supervisors having determined that the petition presented was...