Yewell v. Board of Drainage Com'rs of Daviess County

• Decision Date: 12 March 1920
• Citation: 219 S.W. 1049,187 Ky. 434
• Parties: YEWELL ET AL. v. BOARD OF DRAINAGE COM'RS OF DAVIESS COUNTY ET AL.
• Court: Kentucky Court of Appeals

219 S.W. 1049

187 Ky. 434

YEWELL ET AL. v. BOARD OF DRAINAGE COM'RS OF DAVIESS COUNTY ET AL.

Court of Appeals of Kentucky.

March 12, 1920

Rehearing Denied April 23, 1920.

Appeal from Circuit Court, Daviess County.

Suit by L. E. Yewell and others against the Board of Drainage Commissioners of Daviess County and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Clements & Clements and T. F. Birkhead, all of Owensboro, for appellants.

J. R Hays and W. E. Aud, both of Owensboro, for appellees.

CLARKE J.

The appellants, who were plaintiffs below, are 250 of over 1,200 landowners, and own 11,000 acres of the 56,000 acres of land included in the Panther creek drainage district, in Daviess county, Ky. The district was established and organized upon the petition of J. H. Hickman and others, filed in the Daviess circuit court on May 16, 1912, under the provisions of the drainage law enacted at the 1912 session of the Legislature, now section 2380, Kentucky Statutes, and that action was finally terminated before the 1912 drainage act was amended, and a new drainage law adopted at the 1918 session of the Legislature. Acts 1918, c. 114. Appellants were parties to the proceeding to establish the district having been personally summoned, as well as given notice by publication of every action taken by the court in that proceeding, as required by the provisions of the 1912 act. Yet they made no objection or filed any exception to any order or judgment entered in that action, and no appeal has ever been prosecuted from any judgment entered therein, nor has any final order or judgment in that action been modified or set aside.

By this action appellants seek to enjoin the board of drainage commissioners of Daviess county from issuing bonds or carrying out its contracts with the McWilliams Northern Dredging Company, the Vincennes Bridge Company, and the Champion Bridge Company for the construction of the drains bridges, etc., as ordered and approved by the court in the proceeding to establish and organize the drainage district; and to enjoin the board of drainage commissioners from paying attorney fees and other items allowed therein as costs or assessing their lands to pay for said improvements in the manner and for the amounts as ordered by the court in that action.

Manifestly, therefore, the first and only question save one involved upon this appeal, if it is to be decided against appellants, is whether or not they may, in this collateral proceeding, attack the orders and judgment which they admit were entered in the other proceeding to which they were parties and made no objection. The right so to do is asserted upon the ground that all orders and judgments entered in the original proceeding after the confirmation of the viewers' estimate of cost and report upon land classifications are void, and this upon authority of Williams v. Wedding, Judge, 165 Ky. 361, 176 S.W. 1176. In that case, in considering the constitutionality of the 1912 drainage law upon demurrer to a petition complaining of assessments as made by the board of commissioners, it was held that the act is violative of sections 2 and 14 of the Constitution of this state and article 14 of the federal Constitution in so far as it attempts to authorize the board of drainage commissioners, after the court had lost jurisdiction of the case, to levy and collect assessments against the lands of citizens without giving them a right to be heard as to whether the assessments were made in accordance with the final report of the viewers.

It was further held that the county court lost jurisdiction of that case when, after the viewers' final report had been confirmed, the proceeding then pending in court was referred to the board of drainage commissioners for all further proceedings. This was unquestionably true, if the order of reference entered in that case finally fransferred all matters that might thereafter arise to the commissioners as presumably it did, and as evidently was contemplated by the act would be done.

Under this view of its application, which was the only view in which it was presented or considered, the act was unquestionably unconstitutional for the reasons and to the extent indicated in the Williams v. Wedding Case. In the case at bar, however, the act was very differently applied and in a manner which, in our opinion, relieves it of all unconstitutional features.

Appellants in their petition alleged that the viewers' final report was confirmed and the case referred to the board of drainage commissioners for the construction of the improvement and to prepare an assessment roll by order of the county court entered on January 23, 1917, and an order entered on the ______ day of ______, 1917. It is one or the other or both of these orders which they claim terminated the proceeding in the county court, and by reason of which the court lost jurisdiction of the proceeding, with the consequence that all subsequent orders and judgments are void. They did not file with or incorporate substantially into their petition either order, but a copy of the order of January 23, 1917, which is the only one here, is filed with and made part of the answer of the defendants, who contend that the court did not, by that or the other order, finally refer the case to the board of drainage commissioners, but, upon the other hand, expressly retained jurisdiction of the case in order to give appellants and other parties thereto an opportunity, such as was denied the parties in the Williams-Wedding Case, to be heard upon any objection that they might have to the manner in which the board of drainage commissioners might perform the work of constructing the improvement and levying assessments against the land of parties to the action. The order is very lengthy, so we shall not copy it in full, but only such portions as clearly indicate its character and purpose.

The order of January 23, 1917, starts out by stating that, "This day came" numerous parties, and filed exceptions to the report; that the board of drainage commissioners filed an amended report, describing more definitely the course of the proposed ditch and the amount of excavation that would have to be made; that the viewers filed an amendment to their final report, correcting certain errors and making some changes therein; that numerous parties had asked and been allowed further time in which to file exceptions to the report; that proof was heard, and the court satisfied that notice by publication of the hearing had been given, as required by the act. It is then ordered that, except as to the parties who had been given further time, "said final report of the viewers be confirmed."

Following this order of partial confirmation it is adjudged that the scale of assessment to be made by the board of drainage commissioners shall be in the proportion and according to the classification of lands as indicated in the viewers' report, and these classifications and proportions are recited in the court's order, following which the order continues:

"That except as to the parties named above the classification of the land made in said report is confirmed, and in calculating the assessment against the various landowners, the board of drainage commissioners shall follow the classification as made by the viewers, except as may be hereafter changed with reference to the parties named above."

The order concludes as follows:

"It is further ordered that, when the board of drainage commissioners file their assessment roll, they shall file therewith a full statement of all items of expense and costs that enter therein, and that said assessment roll and said report of expenses and costs shall be set for exceptions, and all parties interested shall be given a reasonable opportunity to file exceptions to any issues raised by said report or said assessment roll not raised by former reports and pleadings herein, and to any item of costs or expense included therein which are not included in or covered by former reports herein."

From a mere casual reading of this order it is apparent that it is neither a final confirmation of the viewers' report, nor a final reference of the case to the board of drainage commissioners, nor in any sense a final judgment such as terminated the proceeding in court.

Upon the other hand, it was clearly an order retaining jurisdiction of the court for the purpose of giving all parties to the action an opportunity to be heard in that action upon any objection that they might desire to make with reference to the manner in which the work of constructing the improvement and preparing the assessment roll against the landowners might be performed by the board of drainage commissioners, and hence we must presume that the later order of reference was not a final order. The opinion in Williams v. Wedding, supra, is conclusive that appellants were in court and bound by this order, and so much they admit. They were therefore, it seems to us, bound to take notice of the fact that this was not a final reference to the board of drainage commissioners for all further proceedings, but was just the contrary. By failing to file exceptions to the...