Settlers' Irrigation District v. Settlers' Canal Co., Ltd.

• Decision Date: 13 March 1908
• Citation: 94 P. 829,14 Idaho 504
• Parties: THE SETTLERS' IRRIGATION DISTRICT, Respondent, v. THE SETTLERS' CANAL CO., LTD., and JOHN LEMP, Appellants
• Court: Idaho Supreme Court

94 P. 829

14 Idaho 504

THE SETTLERS' IRRIGATION DISTRICT, Respondent, v. THE SETTLERS' CANAL CO., LTD., and JOHN LEMP, Appellants

Supreme Court of Idaho

March 13, 1908

IRRIGATION DISTRICT-TITLE TO ACT-CONSTITUTIONAL LAW-CONFIRMATION OF ORGANIZATION AND PROCEEDINGS OF THE DISTRICT.

1. Where an irrigation district has been organized in accordance with the irrigation law of this state, and has voted to issue bonds for the construction or purchase of a canal system, the fact that said system will supply and water lands outside of the district does not render said district or the proposed issue of the bonds invalid.

2. The legality of the formation of an irrigation district or the proposed issue of bonds of said district for the construction or purchase of a canal system are not affected by the fact that the canal system of said district may water lands outside of said district.

3. Where bonds of an irrigation district have been authorized by vote of the qualified electors of said district, and the benefits accruing from such works, and the costs of such works are apportioned and distributed to the lands in said district, and said district and its officers have acted in said matter wholly with reference to the land within the boundaries of said district, the fact that the canal system or the works supply water to irrigate lands outside of the irrigation district does not affect the validity of the proposed issue of bonds.

4. Where the title of an act has been approved by this court the title of an amendatory act thereto is sufficient, when it clearly specifies the particular sections of said act to be amended and is germane to the subject stated in the original act.

5. An act is not repugnant to the constitution of this state, where a word is used therein which it is apparent the legislature did not intend to use, and as used, is meaningless and surplusage, and it is plain that the same was inadvertently used.

6. A section of a statute may be amended by adding thereto a new section, provided the section added relates to and is germane to the subject matter of the act proposed to be amended.

(Syllabus by the court.)

APPEAL from the District Court of Third Judicial District for Ada county. Hon. Fremont Wood, Judge.

A proceeding to confirm the validity of the organization of the Settlers' Irrigation District and the validity of a proposed bond issue of said district. Judgment for respondent. Affirmed.

Judgment affirmed. Costs awarded to respondent.

W. B Davidson, and Morrison & Pence, for Appellants, cite no authorities.

Cavanah & Blake, for Respondent.

The supreme court of this state has already confirmed the issue and sale of bonds and the organization of an irrigation district where considerable land using water from the canal was outside the district. The court held that the provisions of the act of 1903 must be liberally construed to carry out the purpose of the law. (Nampa & Meridian Irr. Dist. v Brose, 11 Idaho 474, 83 P. 499.)

The supreme court of California held that even after the district voted a bond issue, and before they were issued and sold, about 28,000 acres of land which were excluded from the district did not affect the organization of the district or the validity of the bonds. The law must be liberally construed. (Board of Directors v. Tregea, 88 Cal. 359, 26 P. 237; Central Irr. Dist. v. DeLappe, 79 Cal. 351-365, 21 P. 825.)

STEWART, J. Ailshie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

On January 21, 1908, the board of directors of the Settlers' Irrigation District, situated in Ada county, filed a petition in the district court for the purpose of having confirmed the organization of said Settlers' Irrigation District, and the proposed issue of $ 120,000 of bonds authorized by said district, proposed to be issued for the purpose of purchasing the Settlers' Canal System and Works. Upon the filing of said petition, the judge of said court made an order fixing February 24, 1908, at the courthouse in Boise City, Idaho, for the time and place of hearing said petition, and directed that the clerk of said court give and publish a notice of such hearing according to law. The clerk of said court gave such notice and filed his return thereto, certifying that such notice was given and published pursuant to the order of said judge, and due proof of publication was also made.

Upon the day set for hearing, the appellants, John Lemp and the Settlers' Canal Company, appeared by their attorneys and filed a demurrer to the petition, on the ground and for the reason that said petition did not state facts sufficient to constitute a cause of action in favor of said petitioners, and against the parties adversely interested. The demurrers were overruled by the court and a default entered against said appellants for want of an answer, and all other persons adversely interested to the petitioners.

Findings were made and entered, in which the court found that the law in relation to the organization of said district and the proposed issuing of said bonds had in all things been complied with. A judgment and decree were thereupon entered confirming each and all of the proceedings for the organization of the said Settlers' Irrigation District, and confirming each and all of the proceedings in relation to the bonding plan and the purpose thereof, and the proposed issue and sale of $ 120,000 of the bonds of said district authorized by said district, and in assessing and determining the benefits accruing to each tract or legal subdivision in said district, and all other matters connected with or necessary in the organization of said district, or the proposed issue and sale of the bonds of said district.

From this judgment the appellants appeal. It is argued in this court that inasmuch as it is disclosed by the petition that a portion of the lands to be watered lie outside of the district, and that a portion of the water under the control of the district flows outside of the exterior boundaries of the district to other lands, that the district or its officers have no power to exercise any dominion over the water of the system after it has once passed out of its territorial limits, nor over the lands which the same irrigates, and for that reason the proposed issue of the bonds will be invalid.

The second contention of counsel for appellant is that the law of 1907 is unconstitutional, for the reason that it is not in accordance with the requirements of secs. 16, 17 and 18 of art. 3 of the constitution.

The first question for consideration is: Does the fact that some of the land watered by the canal system, which the Settlers' Irrigation District proposes to purchase, lies outside of the territorial limits of the district, affect the organization of said district or the legality of the proposed issue of bonds? It appears from the record in this case that the land proposed to be watered outside of the territorial limits of the Settlers' Irrigation District is in the territorial limits of the Nampa and Meridian Irrigation District adjoining. It further appears from the record that when the board of directors of the Settlers' Irrigation District made the assessment of the benefits, and apportioned the costs to be levied against the land benefited, that no assessment was made against land outside of said district. The Settlers' Irrigation District was organized under the act of 1903 (Laws 1903, p. 150). Under the provisions of sec 2 of said act, the board of county commissioners had jurisdiction and authority to fix and define the boundaries of said district, and the law further provides that land outside of the boundaries of said district may be brought into said district upon a compliance with the statute. The court found in this case, and it appears clearly from the record, that the requisite number of freeholders signed the petition for the organization of said district, and the court further found that said district had been organized in all things as required by law, and that in making the assessment of benefits and the apportionment and distribution of the costs of such work, the same was made only against lands in said district; that said bonds were authorized by a vote of the qualified electors of said district, and that the benefits accruing from such works and the costs of such works were apportioned and distributed to the lands in said district only. Thus it will be seen that the officers of said district, and said district, have acted in this matter only with reference to the land within the boundaries of said district. The fact that the canal system or works of said district supplies water to irrigate land outside of the...