State ex rel. Dorgan v. Fisk

• Decision Date: 02 March 1906
• Citation: 15 N.D. 219,107 N.W. 191
• Parties: STATE ex rel. DORGAN v. FISK, Judge.
• Court: North Dakota Supreme Court

15 N.D. 219

107 N.W. 191

STATE ex rel.

DORGAN

v.FISK, Judge.

Supreme Court of North Dakota.

March 2, 1906.

Syllabus by the Court.

A board of drainage commissioners, appointed under statutory authority and acting regularly in the discharge of its statutory duties, is exercising functions in their nature judicial when it assesses the benefits to lands in the drainage district established by it.

After such board has assessed the benefits to lands under such circumstances, and has proceeded in all things in accordance with the statutory requirements, its action in assessing benefits is final unless assailed for fraud or other ground for equitable interference.

The fact that one of the members of a board of drainage commissioners owns land in the drainage district that will be benefited by the drain will not disqualify such member from acting, nor render the proceedings in which he participated void or subject to attack by a court of equity.

When a district court enjoins proceedings by a board of drainage commissioners acting regularly and within its exclusive jurisdiction, a writ of prohibition from this court is a proper remedy to be invoked against further proceedings by the district court.

An appeal from the action of the district court, under such circumstances, is not a speedy nor adequate remedy.

Application for writ of prohibition by the state of North Dakota, on the relation of Dennis Dorgan, against Charles J. Fisk, as judge of the district court of the First judicial district. Writ issued.C. N. Frich, Atty. Gen., and J. B. Wineman, State's Atty., for petitioner. Tracy R. Bangs, for respondent.

MORGAN, C. J.

The board of drain commissioners of Grand Forks county, appointed and acting under chapter 21 of the Revised Codes of 1899, as amended by chapter 80, p. 89, Laws of 1903, instituted proceedings for the establishment of a drain in said county. The board had advertised for bids for the construction of said drain and a day was set for considering bids. Prior to the time for opening such bids 16 land owners whose lands were in the established drainage district commenced an action against the drainage board, praying that it be enjoined from taking any further proceedings in reference to letting contracts for constructing the drain. The plaintiffs procured an order to show cause why a preliminary injunction should not be issued enjoining the defendant from further proceedings. On the day fixed for the hearing on the order to show cause the defendants appeared and objected to the issuance of an injunction. The objections were all overruled and the court stated that a preliminary injunction would be issued. Prior to the issuing of such injunctional order one Dennis Dorgan, claiming to be a land owner in said drainage district and beneficially interested therein, applied to this court for an alternative writ of prohibition directed to the district judge and commanding him to desist from further proceeding in the injunctional action. The district judge made his return to the writ in this court, wherein all the proceedings in the action before him and upon which he alleged that his acts were legal and justifiable were set forth. The return also denies that this court has jurisdiction to issue the writ in this case for the reason that there is a plain, speedy and adequate remedy in the ordinary course of law.

The complaint in the action against the drainage board alleged as grounds for an injunction: (1) “That the drain proposed to be constructed, and for which the plaintiffs' lands are to be assessed for benefits, will not be of any benefit whatever, direct or indirect, to the plaintiffs' lands. (2) That said defendants, the said board of drain commissioners, as such board and individually, each and all know and knew on the 26th day of August, 1905, after all the facts had been submitted to it and them with respect to the benefits to accrue to the lands hereinbefore referred to that no benefit whatever would accrue to the lands described herein as belonging to these plaintiffs; that notwithstanding such knowledge on the part of said board of drain commissioners and the members thereof, the said board of drain commissioners willfully, fraudulently, and in violation of the rights of these plaintiffs * * * in violation of the duties imposed upon said defendants * * * ordered and directed that said ditch or drain be dug * * * and that the lands of these plaintiffs be assessed, taxed and charged with benefits, etc. (3) That Owen Lavelle, one of the defendants, and one of said board of drain commissioners, owns considerable lands north of the line between the townships of Walle and Grand Forks, and claims and contends, and these plaintiffs concede the fact to be, that the land so owned by said Lavelle will be benefited by the construction and maintenance of said drain. That said Lavelle has been extremely active in his efforts to force through the proceedings preliminary and incidental to the construction of said drain.”

The defendants answered this complaint and alleged: (1) That the lands owned by the plaintiffs would be benefited by the construction and maintenance of the drain. (2) That the defendants, as such drainage board, are vested with sole jurisdiction in the ascertainment of the lands to be assessed and the apportionment of benefits in the construction of drains under and by virtue of chapter 21 of the Political Code of North Dakota. (3) That said drainage board is a municipal corporation and in the performance of the acts complained of in said complaint were performing a legislative act. The affidavit on which the preliminary writ of prohibition was issued recited all the proceedings taken by the board of drainage commissioners from their appointment up to the advertisement for bids for doing the work necessary to the construction of the drain that had been established by it. It further set forth that said drainage board had proceeded regularly in all its doings and that it had sole jurisdiction to determine whether said drain should be established and what benefits should be assessed to each tract of land within the district established and that the district court had no jurisdiction to proceed with the trial of said action.

The questions presented and argued in this court are: (1) Did the district court have jurisdiction to enjoin further proceedings by the drainage board under the showing made? (2) Is the writ of prohibition a proper remedy under the facts of this case?

The defendant contends, under the first question raised, that the complaint stated grounds for interference by a court of equity. The grounds of such contention are that the drainage board acted fraudulently and arbitrarily in assessing benefits and that one member of the board was disqualified by personal interest in the establishment of the drain from acting on the board and having acted, that all the proceedings were rendered null and void. It is further contended that the lands of the plaintiff in the injunctional action were so situated that no benefits whatever were conferred upon their lands. The allegations as to fraud, hereinbefore set forth at length, are to the effect that the board had knowledge before assessing benefits to the lands that no benefits whatever would accrue to the lands. It is an elementary principle of pleading that facts must be pleaded before an issue of fraud can be raised. To base an allegation of fraud solely on the pleader's conclusions as to what knowledge the opposite party possessed as a basis for his actions is not such a statement as will sustain a cause of action for fraud. Nor can that cause of action be pleaded by the use of the word “fraudulently.” No fact was pleaded showing fraudulent conduct of the board. At most the allegation of fraud is a conclusion drawn from another conclusion. Fraud was not pleaded nor shown by any fact developed at the hearing. The testimony at the hearing was conflicting. The plaintiffs each testified that their lands would not be benefited at all by the drain. The members of the board testified that they made at least two personal examinations of the land in the drainage district, and made inquiries of divers persons interested in the drain, and, from such examinations and the information received, stated that the plaintiffs' lands would be benefited. The engineer employed to survey the route of the drain testified that the plaintiffs' lands would be benefited by the drain. The record therefore discloses nothing on which fraud can be predicated. The question for the board to decide was the necessity for the establishment of the drain, and the further one, what lands would be benefited thereby. On the review provided for by section 1451, Rev. Codes of 1899, the plaintiffs were present and protested and gave evidence that their lands would not be benefited. There was also evidence that the plaintiffs' lands would be benefited. On this conflicting evidence the board decided that plaintiffs' lands would be benefited. Is this finding reviewable by a court of equity in the absence of allegation and proof of fraud? That is the first question of law presented.

Section 1452, Rev. Codes 1899, provides that the board shall assess the amount “which any lot, piece or parcel of land shall be liable to pay by reason of benefits to accrue thereto, either directly or indirectly by reason of the construction of such drain, whether such lands are immediately drained thereby or can be drained only by construction of other and connecting drains, but such assessment shall be subject to review by the commissioners as hereinafter provided.” Upon the review of the assessment, the statute provides that the same shall be corrected or confirmed. There is no provision for an appeal from the decision of such boards and no provision for any further review of their action by any court or body. The question of fraud having been eliminated it remains simply to determine...