Yeomans v. Riddle

• Decision Date: 18 December 1891
• Citation: 50 N.W. 886,84 Iowa 147
• Parties: J. D. YEOMANS et al., Appellants, v. J. N. RIDDLE et al., Appellees
• Court: Iowa Supreme Court

50 N.W. 886

84 Iowa 147

J. D. YEOMANS et al., Appellants, v. J. N. RIDDLE et al., Appellees

Supreme Court of Iowa, Des Moines

December 18, 1891

Appeal from Monona District Court.--HON. GEORGE W. WAKEFIELD, Judge.

CERTIORARI to review the proceedings of the board of supervisors of Monona county to repair, deepen, and improve a county ditch and to assess the cost thereof upon landowners along and in the vicinity of the ditch. A demurrer to the plaintiffs' petition was sustained, and from that ruling they appeal.

Affirmed.

Joy Hudson, Call & Joy, for appellants.

H Chrisman and Wright & Hubbard, for appellees.

OPINION

BECK, C. J.

I. As the only questions in the case arise upon a demurrer to the petition, it becomes necessary, for a correct understanding of the case, to set out in full these proceedings. They are as follows:

"Petition: The plaintiffs, for cause of action against the defendants, state: That the plaintiffs are all taxpayers of Monona county, Iowa. That they are the several owners of a large number of tracts of land in said county, lying along and in the vicinity of a certain ditch or excavation known as the 'Persons Ditch.' That the above-named defendants are the members of the board of supervisors of said county. That on or about the second day of October, A. D. 1889, said board of supervisors levied and assessed, or attempted to levy and assess, a tax upon each of the aforesaid tracts of land of the plaintiffs, lying along or in the vicinity of said Persons ditch, for the payment of costs and expenses of reopening, repairing, and deepening said ditch, and for certain alleged improvements upon the same, and made an order directing the auditor of said county to carry said assessment against the lands of plaintiffs upon the tax lists of said county for the year of 1889. That said board of supervisors exceeded its jurisdiction, and otherwise acted illegally, in making said order and levying and assessing said tax upon the lands of the plaintiffs, as aforesaid, and that said levy and assessment, and the action and proceeding of said board of supervisors making, ordering, and directing the same, is and was without jurisdiction, and null and void, for the following reasons, to wit:

First. Said board of supervisors had no jurisdiction to reopen, deepen, or repair said ditch, or to cause the same to be done, or to make any order for the reopening, deepening, repairing, or improving of the same, and all the acts, orders, and proceedings of said board of supervisors, defendants, in relation thereto are and were wholly unauthorized, illegal and void for that: (a) No petition for the reopening, deepening, or repairing of said ditch, or for making any of the alleged improvements thereon, signed by a majority of persons resident of said county, owning lands along or adjacent to such ditch, was ever filed with the auditor of said county, or presented to or heard by said board of supervisors, and no bond was filed, as provided by section 1208 of the Code of Iowa. (b) The petition, if any, for reopening, deepening, or repairing said ditch, was not placed in the hands of the county surveyor or a competent engineer, and no return was made by such surveyor or engineer, as provided by law. (c) No notice in writing of the pendency and prayer of any petition for reopening, deepening, or repairing said ditch, or the session of the board of supervisors at which the same was heard, was ever at any time served upon the plaintiffs or the owners of land lying upon or along the route of said ditch; nor was any right to reopen, deepen, or repair the same acquired, as provided by law. (d) The order for the reopening, deepening, and repairing said ditch was made and entered at a special session of said board of supervisors, held more than ten days after the alleged request, if any, was made therefor and filed, and no notice of said special session, or the purpose for which the same was held, was ever given or published as provided by law. (e) Said board of supervisors did not divide said ditch into sections and prescribe the time within which the work on each section should be completed; and the notice of the letting of the work upon said ditch, provided by section 1212 of the Code of Iowa, did not divide the same into sections, specifying the kind and amount of work to be done on each section, and the time fixed for the completion of the same as provided by law. (f) After the original assessment or report of the appraisers had been duly signed and filed, a long list of lands, not contained or included in said original assessment or report, was added or attached thereto, without the knowledge or consent of said appraisers, and after their duties as such had been fully discharged and performed, and their office had expired and ceased, which said list is the sole basis of a large portion of the tax so levied and assessed upon and against the lands of the plaintiffs.

"Second. A large part of the work, for the payment of which said tax was levied and assessed, was done and performed at places where said board of supervisors had never established, or attempted to establish or locate, a ditch, and a large portion of the same was for work ordered, or alleged to have been ordered, by an individual member of said board of supervisors, without the same ever having been ordered by said board of supervisors at any session thereof, and about two miles of extension of original ditch into Harrison county was made at great expense, and plaintiffs' lands in Monona county assessed for same.

"Third. The appraisals of benefits for the reopening, deepening and repairing of said ditch, and the levy and assessment of the tax for the same upon the lands of the plaintiffs, as aforesaid, were both made without any notice thereof to the plaintiffs and parties whose lands were so assessed and taxed, and without opportunity being given them to be heard in relation thereto in defense of their rights, a copy of the commission being hereto annexed, marked 'Ex. A,' and no notice or opportunity was at any time given to any of the plaintiffs to appear before the appraisers or said board of supervisors, and object to the appraisal or the assessment and levy of said tax, and said taxes in the aggregate amount to about six thousand dollars.

"Fourth. The aforesaid appraisal and tax, and the assessment and levy of the same, and all the acts, orders, and proceedings of said board of supervisors in relation thereto, or in any manner connected therewith, are in conflict with article 1, section 9, of the constitution of the state of Iowa, and are unconstitutional, null and void, for that said proceedings were had, and said appraisal and assessment, and the levy of said tax, and the order of said board of supervisors directing the auditor to carry the same upon the tax list against the lands of the plaintiffs, were all made without notice to the plaintiffs and parties against whose lands said tax was levied and assessed, and without any opportunity being given them to appear and be heard in reference thereto, and that the plaintiffs will thereby be deprived of their property without due process of law. See Exhibit A, attached hereto as part of this petition.

"Fifth. That section, 1214 of the Code of Iowa, under which said proceedings were had, and the aforesaid appraisal and order and the levy and assessment were made, is in conflict with article 1, section 9, of the constitution of the state of Iowa, in that it authorizes said board of supervisors to deprive the plaintiffs of their property without due process of law, because the same authorizes the appraisal of benefits, and the assessment and levy of a special tax, without notice to the parties whose property is sought to be taxed thereby, and without opportunity being given the parties affected by said tax to be heard in reference thereto. That the plaintiffs have no plain, speedy, and adequate remedy for the injury done them by said illegal acts of the defendants, except by certiorari. Wherefore the plaintiffs pray that a writ of certiorari issue from this court, commanding the said defendants herein to certify fully to this court a transcript of the records and proceedings in reference to reopening, deepening, and repairing said Persons ditch, or ordering the same to be done, and in assessing and levying a tax upon the lands of the plaintiffs lying along and in the vicinity of said ditch, for the payment of the costs and expenses of reopening, deepening, and repairing the same, and ordering the auditor of said county to carry the same on the tax lists of said county for the year 1889, together with all the facts relating to the same, as fully as they may appear upon the records of said board of supervisors; and that said proceedings may be annulled, set aside, and held for naught."

To this petition the defendants filed the following demurrer "Now come the defendants in the above entitled action, and, demurring to the petition of the plaintiffs filed herein, state that the facts stated in said petition do not entitle the plaintiffs to the writ or relief therein demanded, for that: (1) The grounds set forth in the first division of said petition as grounds defeating the jurisdiction of the said board of supervisors are not in any manner applicable to proceedings for the reopening and repairing of a ditch, but relate solely to the location and establishment of a ditch, and that the proceedings therein set forth are not required for the reopening or repairing of a ditch. (2) That in the second division of said petition no grounds are stated assailing the jurisdiction of said board, or the legality of its action; the said division questions only the levy of some portions of the tax, without specifying what...