Prucka v. Eastern Sarpy Drainage Dist.

• Decision Date: 03 July 1953
• Docket Number: No. 33230,33230
• Citation: 157 Neb. 284,59 N.W.2d 761
• Parties: PRUCKA et al. v. EASTERN SARPY DRAINAGE DIST. et al.
• Court: Nebraska Supreme Court

Page 761

59 N.W.2d 761

157 Neb. 284

PRUCKA et al. v. EASTERN SARPY DRAINAGE DIST. et al.

No. 33230.

Supreme Court of Nebraska.

July 3, 1953.

Syllabus by the Court

1. Where a transcript of objections to the apportionment of benefits is filed within the statutory time under the provisions of section 31-413, R.R.S.1943, the district court acquires jurisdiction, even though the report of apportionment of benefits is not contained therein due to the mistake and act of the county clerk.

2. Where a bona fide attempt has been made to organize a drainage district, the legality of its organization cannot be collaterally attacked for irregularities and defects not affecting the jurisdiction of the tribunal by which it was created, but if the proceedings were in fact void for jurisdictional defects, their nullity may be shown at any time in any character of action.

3. Rudersdorf Drainage Dist. v. Chicago, R. I. & P. Ry. Co., 118 Neb. 43, 223 N.W. 639, is hereby overruled insofar as such opinion is in conflict herewith.

4. When an officer whose duty it is to approve a bond accepts the same for filing, places thereon his filing stamp, and records it in his office, it is presumed, in the absence of competent evidence to the contrary, that such officer performed his duty and approved the bond.

5. The requirement of publication of one notice once each week for three weeks in a newspaper is complied with by publication on one day of each of three weeks, that is, three successive weekly publications.

6. In such an instance the notice is complete upon the distribution of the last issue of the paper containing the notice, though three full weeks did not elapse after the first publication.

7. The organization of a drainage district and the operation thereof after its establishment subserve public interests and not the private advantage to be gained by any property owner.

8. The de facto officer doctrine does not rest upon a vindication of the right of one to occupy a position or to perform official acts but upon the principle of protection to the interests of the public and third parties.

9. The acts of officers de facto with respect to matters affecting the public interests are to be regarded as valid and binding, as much so as if the same acts had been performed in the same manner by an officer de jure, and the legality of such acts may not be collaterally attacked.

William R. Patrick, Papillion, Smith & Smith, Omaha, Stewart & Stewart, Lincoln, and Burbridge & Burbridge, Omaha, for appellants.

Tesar & Tesar, Omaha, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CHAPPELL, Justice.

Frank H. Prucka and Margaret Prucka, hereinafter called plaintiffs, filed a complaint with the county clerk as provided by section 31-413, R.R.S.1943, objecting to any determination of units of benefits and assessments that might be levied against them on their described lands by Eastern Sarpy Drainage District, hereinafter called defendant. Insofar as important here, their objections were in substance: (1) That the district was not lawfully organized or existent as a drainage district under Chapter 31, article 5, Compiled Statutes of Nebraska, 1929, then applicable thereto, and thus had no authority to determine any units of benefit or levy any assessments against their lands; (2) that the pretended action taken by the district's board of directors was null and void for want of any authority to act, because they had failed to give proper bond and take proper oath as required by statute; and (3) that said board failed to give jurisdictional notice to the landowners of a hearing upon reapportionment of benefits as required by section 31-449, R.R.S.1943.

An order of the trial court was entered consolidating seven other cases, specifically reciting the docket numbers thereof, for trial with the case named in the title of this opinion, and providing that all rulings and orders made in this case were to have equal force and effect in all of such cases. That order is not questioned, and this opinion disposes of all such cases.

After hearing, whereat voluminous evidence was adduced, the trial court rendered its decree, the effect of which was to sustain plaintiffs' objections aforesaid; conclude that the district had no legal existence as a drainage district; that its officers were neither de facto nor de jure officers; and that the attempt of the district to make determination of units of benefits, reapportion same, and Ievy assessments therefor, was without jurisdiction, null and void. Such decree was rendered and ordered entered in each and every one of the consolidated cases with like force and effect.

Defendant's motion for new trial was overruled, and it appealed, assigning substantially that the trial court erred: (1) In permitting plaintiffs to file a supplemental transcript in the district court to include therein the report of reapportionment of benefits; (2) in allowing legal existence of the district to be litigated as an issue; (3) in depriving the district of substantial rights by concluding that it was not a legally existing district and had no jurisdiction to determine units of benefit or levy assessments; and (4) in concluding that the action of directors of the district in attempting to do so was null and void because they failed to give proper bond and take proper oath as provided by statute. We sustain the above third and fourth assignments, but conclude that assignments one and two have no merit. In that connection, however, defendant conceded that the district failed to give proper notice to landowners of hearing upon reapportionment of benefits as required section 31-449, R.R.S.1943, and that the trial court was correct in concluding that the purported reapportionment was null and void for that jurisdictional reason. Therefore, we affirm the judgment as modified herein.

Section 31-413, R.R.S.1943, provides: 'Any person claiming to be aggrieved by such apportionment of the benefits may file complaint thereof with the county clerk within twenty days after the third publication of the notice provided for by section 31-412, together with a bond running to the district, with surety or sureties to be approved by the county clerk, conditioned to pay all costs that may be adjudged against such complainant, if the appeal be not sustained. Thereupon the county clerk shall make a transcript of the objections and of the report of apportionment of benefits, and such appellant shall, within ten days thereafter, file such transcript in the district court of the county, and such court shall hear and determine all such objections in a summary manner as in a case in equity, and shall increase or reduce the units of benefits on any tract where the same may be required in order to make the apportionment equitable. All objections that may be filed shall be heard and determined by the court as one proceeding, and only one transcript of the report of apportionments shall be required.' In that connection, as provided in section 31-449, R.R.S.1943, when a reapportionment of benefits is attempted, 'appeals may be taken therefrom as provided in the original apportionment.'

Plaintiffs complied with such provisions, and filed their complaint with the county clerk, whereupon, at plaintiffs' request, the clerk prepared a transcript, and plaintiffs duly filed same in the district court. However, it was subsequently discovered that the county clerk had failed to include 'the report of the reapportionment of benefits' in the transcript, and defendant filed objections to jurisdiction upon that ground. Plaintiffs thereafter made a proper showing that the omission was entirely due to the fault, mistake, and acts of the county clerk, whose duty it was to make the transcript 'of the objections and of the report of apportionment of benefits,' whereupon the trial court overruled defendant's objections and sustained plaintiffs' motion for permission to have diminution of the record and file a supplemental transcript. That was done. Defendant's first assignment relates to such action.

In In re Estate of House, 144 Neb. 870, 15 N.W.2d 56, this court held: 'Where, as here, a duty is placed upon a public officer to perform acts necessary to perfect an appeal, his failure to perform cannot be charged to the litigant nor operate to defeat the appeal. In re Estate of Tagart, 119 Neb. 647, 230 N.W. 492.' See, also, Dobesh v. Associated Asphalt Contractors, 137 Neb. 342, 289 N.W. 369; Schuyler v. Hanna, 28 Neb. 601, 44 N.W. 731, 11 L.R.A. 321. In that connection, Chicago, B. & Q. R. R. Co. v. Platte Valley Drainage Dist., 113 Neb. 49, 201 N.W. 648, is directly in point and controls a conclusion that defendant's contentions with regard to the transcript have no merit. By analogy, from the afore-cited cases, the applicable rule is that where a transcript of objections to the apportionment of benefits is filed within the statutory time under the provisions of section 31-413, R.R.S.1943, the district court acquires jurisdiction even though the report of apportionment of benefits is not contained therein due to the mistake and act of the county clerk.

We turn then to defendant's second assignment to determine whether or not legality of the existence of the district or legal status of its officers could properly be litigated in the light of plaintiffs' objections. In that connection, we conclude that whether or not there was a legally existing district could be litigated in the light of plaintiffs' objections, but since we conclude that defendant was a de jure district, the status of its officers could not be so collaterally attacked.

The general rule is: 'In accordance with general rules fully noticed elsewhere in this work, the courts are fully agreed that nonjurisdictional irregularities and defects in the formation of a drainage, sewerage, or reclamation district can be challenged only in a...