Wormley v. Bd. of Sup'rs of Wright Cnty.

• Decision Date: 08 April 1899
• Citation: 108 Iowa 232,78 N.W. 824
• Court: Iowa Supreme Court
• Parties: WORMLEY ET AL. v. BOARD OF SUP'RS OF WRIGHT COUNTY ET AL.

108 Iowa 232

78 N.W. 824

WORMLEY ET AL.

v.BOARD OF SUP'RS OF WRIGHT COUNTY ET AL.

Supreme Court of Iowa.

April 8, 1899.

Appeal from district court, Wright county; B. P. Birdsall, Judge.

Certiorari to the defendant board to review its proceedings relative to the assessment and levy of taxes for the construction of a ditch under the provisions of the statute. The ditch in this case is the same as that in question in the case of Aldrich v. Paine (decided at the October, 1898, term of this court) 76 N. W. 812; and the facts are the same, so they need not be repeated. Among the illegalities alleged against the action of the board of supervisors is that of a want of jurisdiction to order the construction of the ditch. The district court determined that the board was without jurisdiction, and avoided its proceedings, and from the judgment the defendants appealed. Reversed.

Robinson, C. J., and Waterman, J., dissenting.Peterson & Humphrey and J. W. McGrath, for appellants.

Nagle & Nagle, for appellees.

GRANGER, J.

The issues present two jurisdictional questions as to the authority of the board of supervisors to order the construction of the drain or ditch. One is as to the authority of the board to order its construction through the incorporated town of Clarion, and the other is as to the sufficiency of the petition presented to the board, invoking its action in the premises.

The first question--that of the authority of the board to order its construction, in part, within the incorporated limits of the town--was settled in the case of Aldrich v. Paine, decided at the October term, 1898, and reported in 76 N. W. 812, in favor of the jurisdiction of the board. These proceedings were had under the law as it was before the present Code, and is found in Code 1873, tit. 10, c. 2; the chapter being, “Of Levees, Drains, Ditches and Watercourses,” for the construction and changing of which the board of supervisors is given authority under prescribed conditions. A jurisdictional requirement is that there shall be first filed in the office of the county auditor “a petition signed by a majority of persons resident in the county, owning land adjacent to such improvement * * * setting forth the necessity of the same, the starting point, route, and terminus.” It is undoubted that such petition is a condition precedent to the authority of the board to act, and one of the grounds upon which the plaintiffs seek to set aside the order of the board of supervisors in ordering the ditch in question is that no such petition was presented. A petition was presented. Its sufficiency is what is questioned, in that it was not signed by the requisite number of landowners. We understand the controversy to be this: If the law simply requires a majority of the owners of the land actually adjoining or abutting on the improvement, then the petition was properly signed. But if, in case of a congressional subdivision of land, a part has been sold that abuts on the improvement, and another...