Tongue River and Yellowstone River Irr. Dist. v. Hyslop

• Decision Date: 16 October 1939
• Docket Number: 7984.
• Citation: 96 P.2d 273,109 Mont. 190
• Parties: TONGUE RIVER AND YELLOWSTONE RIVER IRR. DIST. v. HYSLOP, County Treasurer, et al.
• Court: Montana Supreme Court

96 P.2d 273

109 Mont. 190

TONGUE RIVER AND YELLOWSTONE RIVER IRR. DIST. v. HYSLOP, County Treasurer, et al.

No. 7984.

Supreme Court of Montana

October 16, 1939

Rehearing Denied Nov. 27, 1939.

Appeal from District Court, Sixteenth Judicial District, Custer County; S.D. McKinnon, Judge.

Proceeding by the Tongue River and Yellowstone River Irrigation District against Thos. B. Hyslop, as County Treasurer of Custer County, State of Montana, Nanita B. Sherlock, as State Land Commissioner of said State, and the State of Montana for a judgment declaring that assessments made by plaintiff against property located in the district are valid and constitute a first and prior lien on certain real estate. From a judgment for plaintiff, Nanita Sherlock, as State Land Commissioner and the State of Montana, appeal.

Reversed and remanded with direction.

Harrison J. Freebourn, Atty. Gen., and Wesley W. Wertz, Asst. Atty Gen., for appellants.

P. F Leonard, of Miles City, for respondent.

ANGSTMAN Justice.

This is an appeal by defendants State of Montana and Nanita Sherlock, as State Land Commissioner, from a judgment for plaintiff. The complaint alleges that the plaintiff irrigation district was organized and created on June 24, 1911, in accordance with the provisions of Chapter 146, Laws of 1909, by an order of the district court entered after proper hearing on a petition for that purpose; that it expressly included school lands owned by the state of Montana; that it issued bonds pursuant to the above chapter; that assessments were thereafter made against all of the property in the district, including school lands owned by the state; that "so far as known to the plaintiff the special taxes and assessments for said irrigation district levied against the aforesaid described real estate owned by the state of Montana for years prior to 1920 were paid;" that assessments since 1920 amounting in the aggregate to $5,861.88 have not been paid; that the members of the State Board of Land Commissioners have refused to pay the assessments, and deny that the assessments constitute a lien upon the property." Plaintiff sought a judgment declaring that the assessments are good and valid and that they constitute a first and prior lien upon the lands.

The appealing defendants demurred to the complaint on the grounds, first, that the court had no jurisdiction of the persons of the defendants or the subject of the action; second, that the complaint does not state facts sufficient to constitute a cause of action. The court overruled the demurrer and granted defendants twenty days to answer. Defendants declined to answer and suffered judgment to be entered against them for the relief demanded in the complaint, from which judgment they appealed.

The only question involved is whether under the statutes existing at the time of the creation of plaintiff district school lands owned by the state could be included in the district and made subject to assessments for the costs of the irrigation project.

Defendants make the further contention that if the statutes contemplated that such lands could be included in the district and made subject to the assessments, such statutes would be unconstitutional. In the view we take of the case, the latter question need not be considered, for it is our view that the statutes existing when the district was created did not contemplate that such lands should be included in an irrigation district and subjected to assessment liens. It is our view that whether they should be included or not, and whether they should be chargeable with irrigation district assessments, were and are questions of policy for the legislature to determine, if we assume that there is no constitutional barrier to such legislation.

The legislative policy at the time of the creation of the plaintiff district must be ascertained from legislative Acts then in force. Concededly, the district was created under Chapter 146, Laws of 1909. Prior to the passage of that chapter, section 2401, Revised Codes of 1907, was in effect, providing: "Any lands belonging to the State of Montana, or to the United States may be included in any irrigation district, but such lands shall not be liable for the payment of any assessments for any purpose until after such lands shall come into private ownership as hereinafter provided. Where any such State or United States lands subject to irrigation in any district are under lease or occupied by settlers, such lessee or settler may be assessed for the following purposes, viz.: maintenance, administration and interest on bonds. All such assessments shall be a lien upon any crops or products grown on such lands. Such assessments shall be collected in the same manner as state or county taxes on personal property. In the event that any such state or government land in any district is sold to any person, corporation or company such land shall immediately become liable for all assessments in the same manner as other lands in the district and the water apportioned to said land by the directors shall be appurtenant to the land and inseparable therefrom."

Chapter 146 expressly repealed section 2401 and the only reference made by it to the state-owned lands is found in section 1 thereof. That section provides that a majority in number of the holders of title or evidence of title to lands susceptible of irrigation and representing a majority in acreage of such lands may propose the organization of an irrigation district. It then provides: "The county assessment roll or rolls for the year last preceding, or the certificate of the County Clerk and Recorder, or the certificate of the Register of the State Land Office, shall be sufficient evidence of title for the purpose of this Act. Where lands have been purchased from the State and part or all of the purchase money has been paid but the patent or deeds from the State to such lands have not been issued, the receipt or receipts held by the purchasers, or the certificate of the Register of the State Land Office showing the payments on account of purchase, shall be evidence of title to such lands, under this Act."

While this language is not as clear as it might have been, it seems apparent to us that as to state lands it was the intention of the legislature that they should not be included in an irrigation district unless they had been sold and part or all of the purchase money had been paid. In the event that...