39 Colo. 409 | Colo. | 1907
delivered the opinion of the court:
This special proceeding was brought under sections 55-59 of our irrigation district act of 1901 (Session Laws 1901, p. 198). The substantive part of this act is modeled upon, and in the main is a literal transcript of, the Wright Irrigation District act of California of 1887. The particular sections of our act upon which this proceeding is founded were also copied from the laws of California, but in that state they were embodied in a separate act in 1889.
In Anderson, v. Grand Valley Irr. Co., 35 Colo. 525, will be found a summary of the various provisions of our statute- which was there held to be not obnoxious to the constitutional objections urged against it. We then considered and decided only the validity and not the proper construction of the act, except in so far as the meaning was necessarily involved in the determination of its validity.
1. In' the court below, appellants challenged the constitutionality of the act, but do not renew the challenge here, as, before the briefs herein were filed, this court, in the Anderson case, had ruled adversely to them upon that point. The scope and effect of a decree in this confirmation proceeding is not here discussed or determined, except as between the immediate parties.
2. At the threshold of the case, we are met with the assignment of error that the board of county commissioners did not obtain jurisdiction, and all its subsequent acts and those of the board of directors of the district are void because no sufficient notice was given, as required by the act, of the time of the presentation to the board of county commissioners of the petition for the formation of the district.
These provisions as to notice and publication are identical with the corresponding sections of the Wright act. In re Central Irr. Dist., 117 Cal. 382, there was considered and decided an exactly similar contention. It was there held — and nothing to the contrary is decided in Tulare Trr. Dist. v. Shepard, 185 U. S. 1— that the publication of this notice, as well as the petition, is an essential prerequisite to conferring upon the board jurisdiction to proceed in the matter of the organization; such notice is in the nature of process, indeed the only process by which the property owners to be affected are notified and given an opportunity to present to the board their objections; in this matter the board sits as a court of special and limited jurisdiction; that the notice must be given by the petitioners themselves, and that both the notice and the petition must be published for the required length of time. It appears from the opinion in the case referred to that a copy of the petition was inserted in the newspaper, and immediately below it was the following notice:
*415 “The foregoing petition will he presented to the honorable board of supervisors of Colusa county on Monday, October 10, 1887, at 10 o ’clock a. m. of that day.” The notice was unsigned, and did not bear upon its face any showing of authority. The notice did not show that it was given by the petitioners, who were the only ones who could issue the process. The court therefore held that such publication was not a compliance with the statute, and the board of supervisors did not thereby acquire jurisdiction to proceed fo the organization of the district.
The appellee board concedes, as it must, if the statutory notice in the nature of process was not given as the statute requires, the jurisdiction of the board to organize the district was lacking; but counsel contend that the California decision is not in point. The publication in the present case was in the following form:
“To the Board of County Commissioners of Arapahoe County, State of Colorado:
“We, the undersigned, hereby give notice that on Saturday, the 25th day of July, A. D. 1903, at the hour of ten o ’clock a. .m., we will present to your honorable body for proper consideration and action, a petition for the organization of the High Line Irrigation District, which said petition shall particularly set forth the following, to wit:” Immediately below in the newspaper was a copy of the petition in its. entirety, closing with the signatures of the petitioners.
The distinction appellee seeks to make between the publications in the two cases is this: Whereas in the California case the petition, including the names of the petitioners, precedes the unsigned notice, in this case the notice comes first and is followed by the petition, hence the signatures to the petition may be regarded as signatures to the notice also.
3. The notice is also fatally defective in another particular, in- that it is misleading. It is directed to the board of county commissioners. We do not feel called upon now to draft a form of notice, or definitely say how, if at all, it should be addressed, or what its contents should be. Manifestly, however, the object of the required publication is to notify land owners within the boundaries of the proposed district, other than those who have signed the petition, that at a certain time and place the petition will be presented to the board of county commissioners for its action, as provided for in the statute, when and where they may attend to offer any objection they have. All these considerations should be in the minds of those who prepare and sign the notice. There is no necessity for addressing it to the board, and the statute does not require it.
The effect of this decision as to notice is to mate the organization of the proposed district invalid from the beginning, as jurisdiction of the board did not attach; hence, all other assignments of error might be ignored. But if another attempt to organ
Opposing counsel differ as to the proper construction of this act, the appellants arguing that in this proceeding, where the board of directors itself comes into court and asks for a decree confirming the different steps which have been taken in organizing the district and issuing the bonds, strict proof should be required in case land owners affected thereby deny the alleged regularity or allege non-observance of the antecedent conditions. The appellee, upon the other hand, contends for a more liberal rule of construction. Here appellants specifically deny the allegations of the petition, and affirmatively plead many irregularities and non-compliance with the statute.
Some of the earlier decisions in California, at least so far as the mere organization of districts is concerned, favor a reasonably liberal rule of construction in order to carry out the purposes of the law. Such are Irrigation Dist. v. De Lappe, 79 Cal. 351; Board of Directors v. Tregea, 88 Cal. 334. 'Notwithstanding provisions in the California statute, identical with our own, that “Every material statement of the petition not specifically controverted by the answer shall, for the purpose of said special proceedings, he taken as true,” and “The court in inquiring into the regularity, legality or correctness of said proceedings must disregard an error, irregularity or omission which does not affect the substantial rights of the parties to said special proceedings,”
“The object of the act in question, as was said in Board of Directors v. Tregea, 88 Cal. 334, is for the purpose of affording to investors in the bonds the security of a judicial determination of their validity, and, in order that this may have the effect intended by the legislature, it is not-sufficient for the court to perform the mere perfunctory office of recording the determination of the hoard of supervisors that its proceedings in the organization of the district were regular. The court is not a lit de justice for the mere purpose of entering of record the re-scripts of the hoard of supervisors and giving to them the dignity of its own judgment.”
Again, in Directors of Fallbrook Irr. Dist. v. Abila, 106 Cal. 365, the court, in speaking upon the same subject, said that the burden of proof of the issues upon which it asks the judgment of the court is upon the corporation. As to the provisions of the statute, to which we -have just adverted, to disregard irregularities not affecting the substantial rights of the parties, this was said:
“But this does not authorize the court to dispense with proof of the several acts which the statute has made requisite, or to assume that the omis*419 sion of such, acts, or any other error, was harmless. It is not sufficient that such error or omission may not have affected the substantial rights of the parties interested in the issuance of the bonds. It must clearly appear that it has not affected them, and, if there is a contingency by which these rights may have been affected by such omission or error, the corporation must make the contrary to appear. ’ ’
In Cullen v. Glendora Water Co., 113 Cal. 503, the court, in referring to the practical construction which the promoters of districts and others seem to have'put on the act, that its main object is the issuance and confirmance of a liberal supply of bonds, and that the supply of water is incidental, used this language: -
“But the absurdity and injustice of intending such a construction cannot be attributed to the legislature, since it has interposed at least one salutary check upon an improvident issue of bonds. ’ ’
And again, at page 526: “I think the few checks provided by the statute against the reckless or improvident creation of bond liens of sixty dollars per acre on all the lands in one of these irrigation districts, largely by the votes of electors who own no part of such lands, should be strictly enforced in favor of the owners of such lands.”
These later decisions, we think, lay down the better rule. They were made before our act was passed, and, as the latest authoritative expression of the judicial mind, were presumptively within the contemplation of our general assembly. The statute itself not having declared the character of the proof by which any fact may be established in a court of justice, it must be established in accordance with the common-law rules of evidence; and the act should, like other similar statutes, be given a reasonable construction, bearing in mind that this court has decided
4. We refer to some of the more serious errors into which the court was led by adhering to the wrong construction. As already stated, the statute requires that the preliminary petition which is presented to, . and moves, the board of county commissioners to action shall be signed by a designated number of persons having-certain qualifications. This requirement is important, mandatory and jurisdictional. At the trial in the court below the affidavits of two circulators of this petition, which were presented to the board, were admitted in evidence over the objection of the appellants. These affidavits stated in general terms that the signers of the petition had the statutory qualifications. In the oral evidence of the affiants, which was later given at the trial, similar statements were made. Abstracts of title showing the record owners were also introduced over the objection of the appellants. These documents were not admissible at this trial. Upon this hearing before the. court, common-law rules of evidence prevail. Among these rules is one that requires the production of the best evidence, unless a proper foundation is laid for secondary evidence. This rule was violated, and no necessity for enforcing the exception was shown. While it may be true that it would entail large expense to produce the best evidence of the qualifications of the signers to this petition — their oral testimony or depositions — that, of itself, is no reason for dispensing with such evidence. Where, as here, an issue is made touching the qualifications of the signers, it is incumbent upon the board of directors
5. Section 2 of the act provides that, though the board of county commissioners may modify the boundaries of a proposed district as described in the petition, in doing so it shall not exempt from the operation of the act any territory therein described
The supreme court of California, in some of the cases already cited and in various other decisions, has given to the board of commissioners large discretion in these particulars. Appellee says that the supreme court of the United States in Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112, has so ruled. That court has laid down no such doctrine, but has said, following out its usual rule in similar cases, that, in the absence of actual fraud or bad faith, it will not review questions of fact decided by a duly constituted state tribunal to which the ascertainment of such facts has been committed by the legislature. Mr. Justice Peckham said, however, in this connection, that it may be that the action of the board upon any question of fact, or as to the contents or sufficiency of the petition, or upon any other act of a jurisdictional nature, is open to review in the state courts, and that whether a review is or is not given upon any of these questions of fact is a matter of legislative discretion. It appears from the case already cited that the supreme court of California allows a wide discretion to the board of commissioners, nevertheless it has
It is clear that in the present case there was an abuse of power by the board of county commissioners in the exclusion of lands from the proposed district. It appears practically uncontradicted, and by the testimony of the county commissioners themselves, that the board excluded nearly 15,000 acres of. lands from the district as proposed by the signers of the petition. The method pursued was directly contrary to the unambiguous words of the statute, and in violation of the duty thereby imposed upon the board. The members of that body undoubtedly acted in good faith and in accordance with what they believed to be right, but it is just as certain that they— unintentionally, of course — were guilty of an abuse of power. The statute imposes upon the board the duty of determining the boundaries of the district, and they are required to pass upon and for themselves determine what lands shall be included in, and what, if any, excluded from, it. The method pursued by them when requests were made for exclusion was, in nearly all cases, to refer the matter to the committee of the petitioners which had in charge the organization of the district. If this committee reported favorably or unfavorably on the request, its determination was affirmed by the commissioners without any investigation or any evidence taken by them. This was virtually a surrender of their power, and, in legal effect, an abuse of the power conferred upon them by the statute.
At the trial below, in this proceeding, the appellants offered to show that large bodies of land were excluded from the proposed district which were susceptible of irrigation from the same system of works, and in all substantial particulars were situated with
We have selected these two assignments of error for the purpose of explaining our views as to the construction to. be placed upon the substantial requirements of the statute. In the Cullen case, supra, a bond issue was prevented by the court because the board of directors failed to adopt proper plans for the acquisition and distribution of water. To what extent the action of the board in such matters will be reviewed or controlled, we decline, in advance of a proper case, to intimate. As the board of county commissioners did not acquire jurisdiction to form this district, as sufficient legal evidence as to the qualifications of the signers of the original petition was not produced upon the trial below, and as the evidence received by the court, which appellants’ rejected offer of proof would, if admitted, strengthen, showed an abuse of power by the commissioners in excluding lands from the proposed district, the judgment must be reversed. It is unnecessary to consider the various other objections to the decree which have been argued by the appellants, as they may not again arise if further attempts should be made to organize the district. Sufficient has already been stated, we hope, to accomplish'the objects we have mentioned as prompting the foregoing discussion.
Chief Justice Steele and Mr. Justice Gabbebt concur.