On Rehearing
| Decision Date | 10 April 1909 |
| Citation | 101 P. 87,16 Idaho 235 |
| Parties | On Rehearing. |
| Court | Idaho Supreme Court |
IRRIGATION DISTRICTS-CONFIRMATION OF ORGANIZATION-BOARD OF DIRECTORS OF-POWER TO LEVY ASSESSMENTS-LEGALITY OF-NOTICE OF ELECTION-OF VOTING BONDS-OF CONFIRMATORY PROCEEDING-PROCEEDING IN REM-ABROGATION OF CONTRACT RIGHTS-JURISDICTION-NOTICE SUFFICIENT - DECREE OF CONFIRMATION - COLLATERAL ATTACK - BENEFITS - ASSESSMENTS ACCORDING TO - OWNER OF WATER RIGHT-RES ADJUDICATA-CONSTRUCTIVE SERVICE-SUFFICIENCY OF-JURISDICTION OF SUBJECT MATTER AND PARTIES-DUE PROCESS OF LAW.
1. An irrigation district organized under the provisions of the irrigation district act of 1899 (Sess. Laws 1899, p. 408) and acts amendatory thereof, has power and authority to levy and collect assessments against the lands within the district according to the benefits received.
2. Said act provides for notice to be given by publication in a newspaper of the presentation of the petition for the organization of such irrigation district to the board of county commissioners, and of the time of hearing such petition by such board and for an election to be held for voting on the proposition o^ the organization of such district, a notice for bond election, and notice of the application to the district court for a judgment or confirmation confirming all proceedings in relation thereto.
3. The organization of the district and all proceedings in connection therewith, the voting of bonds and other matters including the decree of confirmation by the district court are proceedings in rem.
4. Constructive service of the notices required by said act is sufficient to give each and every person interested in the organization of such district his day in court, and the court jurisdiction of the person and subject matter.
5. If anyone is dissatisfied with the judgment of confirmation, he is given, by the terms of said act, the right to appeal to the supreme court. Under the provisions of said act, all lands within said district are subject to assessment according to the benefits received for the payment of the bonded indebtedness of such district.
6. The board of directors of the district has the authority to determine whether or not the several tracts of land included within said district will be benefited by the organization of the district and the purchase or construction of an irrigation system, and anyone dissatisfied therewith may have the action of the board reviewed, as provided by said act.
7. Where a party owns his own water right and would not receive any benefit from the organization of the district, he may upon proper showing, have his land excluded from the district and from assessment. Held, under the facts of this case, that an opportunity was given the plaintiff to show that his land would receive no benefits, but that he failed to appear and make such showing, and is bound by the action of the board and the decree of confirmation in that regard.
8. Held, that this action is a collateral attack upon said judgment of confirmation, and so far as this action is concerned, is res adjudicata.
9. In all collateral proceedings, the benefits assessed against land are conclusively presumed to be received, and the assessment is not open to revisal or review.
10. Under the provisions of said act, it was not necessary that personal service be made upon the land owners of the district in order to give the court jurisdiction and power to render a judgment of confirmation valid and binding as against them upon all questions involved in the case.
11. This action does not involve the taking of property without due process of law, nor the violation of the obligations of a contract.
(Syllabus by the court.)
APPEAL from the District Court of the Fifth Judicial District for Bannock County. Hon. Alfred Budge, Judge.
Action against an irrigation district to recover certain assessments alleged to have been paid under protest. Judgment for the defendant. On rehearing, affirmed.
W. H. Wilkins, for Appellant.
A party has the right to recover back illegal assessments paid under coercion. (25 Am. & Eng. Ency. of Law, 2d ed., 1240; Bank of Santa Rosa v. Chalfant, 52 Cal. 170; Bank of Mendocino v. Chalfant, 51 Cal. 369; Armstrong v. Ogden City, 12 Utah 476, 43 P. 121; Gill v. City of Oakland, 124 Cal. 335, 57 P. 152.) O. E. McCutcheon and Wyman & Wyman, for Respondent.
Plaintiff and his grantor waited until the district was organized and in full operation. His remedy in case of any injury was damages and not injunction. .
An assessment of benefits is ipso facto an equalization. It cannot be otherwise. No one can complain of being assessed the amount he is benefited. No one can complain of being assessed like all others in the same class, and certainly the plaintiff is in the same class as all other owners of water rights.
It would have been impracticable to condemn all these deeded water rights. (City of South Pasadena v. Land & Water Co., 152 Cal. 579, 93 P. 490.) Hugh E. McElroy, appearing amicus curiae on rehearing.
The authorities clearly hold that the only jurisdictional defect that can be considered collaterally is lack of jurisdiction of the subject matter. In other words, where the assessment is absolutely void and the court has jurisdiction to review the assessment and confirms it, the assessment is good and cannot be attacked collaterally. (City of Duluth v. Dibblee, 62 Minn. 18, 63 N.W. 1117; Hause v. City of St. Paul, 94 Minn. 117, 102 N.W. 221; Hamilton's Law of Special Assessments, sec. 633.)
"The city council has jurisdiction to determine the question of benefits, as well as the regularity and validity of the assessment; and, where the proceedings are regular, and due notice given, the confirmation of the assessment by the council is final." (Wright Seminary v. Tacoma, 23 Wash. 109, 62 P. 444; New Whatcom v. Bellingham Bay Imp. Co., 18 Wash. 181, 51 P. 360.)
Where the property is situated within the territorial boundaries and the council or board are authorized to assess benefits, and the formalities prescribed by law have been complied with and a benefit assessed, the assessment cannot be collaterally attacked. (Stoddard v. Johnson, 75 Ind. 20; Ricketts v. Spraker, 77 Ind. 371; De Puy v. City of Wabash, 133 Ind. 336, 32 N.E. 1016; Boyce v. Tuhey, 163 Ind. 202. 70 N.E. 531; Hammond v. People, 169 Ill. 552, 48 N.E. 573.)
-A rehearing was granted in this case, and counsel have not only argued the case orally, but have filed briefs covering every phase and point in the case. The main question urged on the rehearing is that the power having been granted by the legislature to organize irrigation districts and to levy special assessments, and that power having been duly exercised in the manner prescribed by the statute, and all acts in relation thereto as well as the action of the district in voting bonds, having been confirmed and approved by the district court, the particular assessments here involved are now res adjudicata, and cannot be considered or reviewed in this case, as this is a collateral attack upon the judgment of a court of general jurisdiction.
Our former decision was based upon the theory that as the plaintiff owned his own water right by and through said water deed, the irrigation district could not confer any benefits so far as his land was concerned, and that because of the inability of the irrigation district to confer any benefits, there was a lack of jurisdiction to levy said assessments. And the court virtually held that to permit the irrigation district to assess the land of the plaintiff as it had done would be a violation or abrogation of the plaintiff's contract rights under his said deed.
This is an action to recover back money alleged to have been paid as assessments, and paid under protest, and to re- strain further assessments, and plaintiff prays that his right to 215 inches of water be declared valid and that the title to the same be quieted in him.
The following facts appear from the record: That on September 10 1892, one Scott, who owned certain land in Bingham county, being the land now owned by appellant and referred to in the complaint, purchased from the Great Western Canal Construction Company for the consideration of $1800 and certain other valuable considerations, a water right of 215 inches, which right was conveyed by said canal company by deed dated September 10, 1892. Said deed contained, among others, the following provisions: "Said second party also hereby further covenants and agrees to pay to said party of the first part, its successors or assigns, in addition to the consideration hereinafter agreed to be paid, an annual rental for the use of water from said canal on said land for irrigation as aforesaid, one dollar per acre for all crops and trees for the number of acres of said land actually irrigated in that year." The said Great Western Canal Construction Company operated said canal until the year 1895, and then sold its right in said canal to the Great Western Canal and Improvement Company. On March 1, 1900, the last-named company sold and conveyed all its right, title and interest in and to said...
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