Thompson v. Mitchell

• Court: Iowa Supreme Court
• Writing for the Court: MCCLAIN, J
• Citation: Thompson v. Mitchell, 133 Iowa 527, 110 N.W. 901 (Iowa 1907)
• Decision Date: 06 March 1907
• Parties: J. F. THOMPSON, Appellant, v. W. L. MITCHELL, Treasurer of Hancock County

110 N.W. 901

133 Iowa 527

J. F. THOMPSON, Appellant, v. W. L. MITCHELL, Treasurer of Hancock County

Supreme Court of Iowa, Des Moines

March 6, 1907

Appeal from Hancock District Court.-- HON.C. H. KELLEY, Judge.

ACTION in equity to restrain the defendant, as county treasurer from enforcing against the property of plaintiff taxes levied for the construction of a ditch within a district including plaintiff's lands. Defendant's answer, setting up the proceedings under which the taxes had been levied, was demurred to; and, on the overruling of the demurrer plaintiff electing to stand on his petition and his demurrer judgment was entered in favor of the defendant, from which plaintiff appeals.-- Affirmed.

Affirmed.

Burt J. Thompson, for appellant.

John Hammill and J. E. Wichman, for appellee.

OPINION

MCCLAIN, J.

The proceedings for the establishment of the drainage district including plaintiff's lands was instituted in 1893. Notice was given in 1894 to the plaintiff and all other owners of lands of the pendency of the proceedings, and that at a future date named objections to the establishment of the drainage district might be made; and subsequently the board of supervisors by resolution established the proposed drainage district, including therein the lands of plaintiff. In 1895 the tax complained of was levied, payable in annual installments, and a considerable part thereof has already been paid by plaintiff and other landowners.

The contention of appellant is that the proceeding was under Code, sections 1939-1951, inclusive, relating to the levying of taxes on abutting property or other property in the vicinity directly benefited thereby for the expense of the construction of a public ditch, and that proceedings for the assessment of taxes under these sections of the Code have been held to be unconstitutional for the reason that no provision is made therein for notice to the owners of the property in the vicinity which are to be assessed as benefited by the improvement. See Beebe v. Magoun, 122 Iowa 94, 97 N.W. 986; Smith v. Peterson, 123 Iowa 672, 99 N.W. 552. It is clear, however, that the proceeding as described more fully in defendant's answer was a proceeding under Code, section 1952, for the establishment of a drainage district. Conceding this proposition for the purpose of the argument, counsel for appellant maintains that there is the same defect in that section as in the preceding sections with reference to the matter of notice, and that, as no notice to the landowners whose property is to be included in the proposed district is provided for, the whole proceeding was invalid. That section directs that "the same proceedings shall be had as is provided by law for the location and construction of ditches" under the preceding sections; and counsel for appellee contend that as some notice is provided for in the preceding sections, and the provision is defective only because notice is to be given to owners of one class of lands, while as to owners of another class of lands which may also be taxed for the improvement it is not required, the presumption must be entertained that under section 1952, which contemplates some notice, there is adequate provision for the necessary notice, inasmuch as, if notice is given at all, it must necessarily be given to all the owners of lands included within the district, as no distinction between those whose lands abut upon the ditch which shall afterwards be located, and those whose lands do not abut, but are within the district which is to be made to include the lands generally benefited, is recognized.

We do not find it necessary to pass upon this question, for we find that plaintiff is not in a position to raise the objection of want of constitutionality in Code, section 192, on account of failure to provide notice, and it is well settled that a court will not pass upon the constitutionality of a statute if the case may be disposed of on any other ground. Santo v. State, 2 Iowa 165, 208; State ex rel. v. County Judge, 2 Iowa 280; McCormick v. Rusch, 15 Iowa 127; Dubuque & D. R. Co. v. Diehl, 64 Iowa 635, 21 N.W. 117; Bond v. Wabash St. L. & P. R. Co., 67 Iowa 712, 25 N.W. 892; Martin v. State (Ark.), 79 Ark. 236, 96 S.W. 372; Mills Novelty Co. v. Dunbar (Idaho), 11 Idaho 671, 83 P. 932.

The appellant did have formal notice of this proceeding. Moreover, he lived in the vicinity, and, it is alleged, had knowledge of the construction of the ditch from its inception until its conclusion. It is also alleged that, as a subcontractor, he assisted in the construction of the ditch and received compensation for his services. He has paid installments of taxes for this improvement without objection, and not until nine years after the levy of the tax, and after the greater part of the assessment had been collected from himself and other landowners, did he take any steps to protest against or enjoin the enforcement of the tax. Under these circumstances, we think that he is in no situation to come into a court of equity and claim that he should be relieved from the obligation to pay the installments of tax yet remaining uncollected. It is not necessary to hold that one who has received no notice under which he is called upon to act is estopped by mere knowledge of the progress of an improvement for which his lands are to be assessed from making objection to the payment of the tax after the improvement has been completed, although several courts seem to have reached this conclusion. McCoy v Able, 131 Ind. 417 (30 N.E. 528, 31 N.E. 453); Prezinger v. Harness, 114 Ind. 491 (16 N.E. 495); Board of Commissioners v. Plotner, 149 Ind. 116 (48 N.E. 635); Kellogg v. Ely, 15 Ohio St. 64...