224 P. 429 | Idaho | 1924
— This is a mandamus proceeding brought by plaintiffs, the commissioners of Drainage District No. 3, of. Ada county, against defendant, one of the judgés of the district court of the third judicial district, to require him to proceed with the hearing of the report of the commissioners and the confirmation thereof. This court issued an order to defendant to show cause why he should not be required to proceed with the hearing of the report. Counsel for Mrs. R. H. Lilly, one of the remonstrants in the district court, who defends the action of that court in sustaining the motion to dismiss the drainage proceeding, has moved to quash the alternative order and has interposed a demurrer. The facts are stipulated.
It appears that on June 10, 1922, a petition for the organization of the drainage district was filed in the office of the clerk of the district court for Ada county; that thereafter a time for hearing the petition was fixed and a notice
It is contended that mandamus is not the proper remedy, and that this court’s action in directing the district court to proceed with the hearing of the report of the commissioners would amount to an attempt to control the discretion vested in the district court, and would be equivalent to not only directing the district court to act, but also specifying the manner in which it should act. Hill v. Morgan, 9 Ida. 718, 76 Pac. 323, determines this question against the contention of defendant. In that case, this court cited, with approval, Merrill on Mandamus, as follows:
Section 36: “When the tribunal or officer whose duty it is to take jurisdiction of a matter, believing, erroneously, that it has no jurisdiction, declines to consider the matter, a mandamus will issue to compel such a hearing.” Section 203: “Mandamus lies to compel a court to try a cause, when it refuses to do so upon the erroneous decision that it has no jurisdiction.”
See, also: Connolly v. Woods, 13 Ida. 591, 92 Pac. 573; In re Grossmayer, 177 U. S. 48, 44 L. ed. 665; Golden Gate Tile Co. v. Superior Court, 159 Cal. 474, 114 Pac. 978; State v. Moulton, 57 Mont. 414, 189 Pac. 59; Roberts v.
The decision of a court that it will not hear and determine a cause upon the mistaken assumption that it does not possess the -requisite jurisdiction is equivalent to a refusal to exercise its jurisdiction, and mandamus will issue to compel such court to assume jurisdiction of the cause. The motion to quash is denied.
It appears that the petition for the establishment of the drainage district originally embraced certain definite territory, and the proposition presented by the petition was approved by the court. By its findings and by its decree, the court established said Drainage District No. 3, and, under C. S., sec. 4498, such findings had the effect of a lis pendens. The commissioners, however, are not confined to the plan of drainage originally outlined in the petition, and they may recommend a change in the plan of the route of the ditches and drains. (0. S., sec. 4508.) If the commissioners find that the proposed district will not embrace all the lands that will be benefited, they may extend the boundaries of the proposed district in their report so as to include such additional lands, but the temporary boundaries, as fixed by the findings and decree provided for in 0. S., secs. 4498 and 4499, can only be altered by the court. (C. S., sec. 4509.)
Subsequently to the making and entering of the findings and decree establishing the proposed district, the commissioners changed the plan of drainage and enlarged the territorial boundaries of the proposed district so that the district, as described in the report of the commissioners under consideration at the time the eomrt concluded that it lacked jurisdiction to proceed, contained about a section of land in addition to that contained in the original district. The notice was directed “to the land owners and .... persons or corporations owning or- interested in lands .... within the boundaries of Drainage District No. 3 . . . . ” Persons and corporations owning or interested in the additional section of land sought to be brought into the district by the confirmation of the report would not be
The notice contains the title of the court and the proceeding, and is directed “To the land owners and any and all persons or corporations owning or interested in lands included in the territory within the boundaries of Drainage District No. 3 of the County of Ada in the State of Idaho: You and each of you will please take notice that the Commissioners .... ”
It will be observed that the notice is directed “to the land owners and .... persons or corporations owning or interested in lands included in ... . Drainage District No. 3 . . . . ” It is claimed that this notice is not in substantial compliance with C. S., sec. 4510, and that the giving of this notice did not vest the court with jurisdiction to hear and determine the report of the commissioners.
The notice, which the court held to be insufficient to give the court jurisdiction in the premises, is an attempted compliance with C. S., sec. 4510. This section requires the court to fix a time and place “when and where all persons interested” may appear, etc. The same section requires that “ . The clerk of the court shall cause notices of the time and place of said hearing to be given to all parties interested by the publication of a notice thereof .... and by personally serving or sending by registered mail a copy of said notice to each land owner . . . . ”
C. S., sec. 4511, provides that “any of the land owners or any person or corporation affected by the work proposed may appear .... and remonstrate,” etc., and any person or municipality may object on the ground that “the public health or welfare will not be promoted by the proposed work.” The published notice is directed neither to all parties interested in the organization of the district, nor to all parties interested in hearing the report of the commissioners, but it is addressed “to the land owners and .... persons or corporations owning or interested in lands . . . . ”
Jurisdiction to confirm the report of the commissioners and establish the drainage district is dependent upon a substantial compliance with the requirements of the statute. The law requires the giving of notice by publication to all parties interested in the formation of the district, and it also requires that a copy of the notice be mailed to each land owner. The statute has not limited the notice to land owners and persons interested in lands, as has been done in a number of states. Mortgagees and bondholders, for instance, may be interested in the formation of the district. = Persons may appear and contest the formation of the district on the ground that the public health and welfare will not be promoted thereby. Any person or corporation “affected by the work proposed” may appear and remonstrate. The fact that the law, in addition to the service of the notice, either personally or by registered mail, requires a publication indicates that the legislature recognized the fact that persons other than land owners have an interest in the organization of such a district, which justifies the publication of the notice to all parties interested. It would appear that the law contemplates that the formation of a drainage district is a matter in which even the public may have an interest, and that while a notice to all parties interested would be sufficient to give the notice required by the statute, a notice addressed to “the land owners .... and all persons or corporations owning or interested in lands,” is insufficient to satisfy the requirements of the statute. While the notice is undoubtedly sufficient as to all the land owners within the original boundaries of the district to vest the court with jurisdiction as to them, it is neither sufficient as to all those who are not land owners but who are entitled to notice, nor is it sufficient as to the land
A number of decisions from the courts of Illinois and Missouri have been cited by plaintiffs. In fact, plaintiffs insist that our drainage statutes were taken from Illinois; that under a statute similar to ours, Illinois has held the words “all persons interested” to mean all persons owning or interested in lands within the boundaries of the district; and that this court should follow the construction placed on the statute by the Illinois court. An examination of the Illinois and Missouri statutes discloses that their requirements as to notice are not similar to ours. Upon the filing of a petition to establish a drainage district in Illinois, the clerk is required to give notice to land owners. This also seems to be the case in Missouri. The Illinois law does not require notice to “all parties interested” as does our statute, hut the Illinois statute permits “all persons interested” to appear and make objection to the proceeding.
The case of Drainage Commrs. v. Waeltz, 41 Ill. App. 575, does not support plaintiffs’ contention. In that case, the court said:
“We are not willing to adopt such a rule or give such a construction to the act. The notice ‘to all persons interested’ to appear and present their claims for damages, was not intended as a notice to those whose lands were outside the district being organized, nor is an inference to that effect justified by the language used in the act. In our judgment, the notice applies to and affects those owners only, whose lands are within the district . ”
The notice in that case, to “all persons interested,” was a sufficient notice to land owners, but no decision has been brought to our attention, construing a statute similar to ours, which holds that a notice to land owners is sufficient as to mortgagees, bondholders and persons affected by the
Plaintiffs contend that proceedings to establish a drainage district are m rem, and that a notice to land owners is sufficient to give the court jurisdiction. Conceding that the proceeding is in rem, we are not here concerned with how embracing or how limited a notice tbe legislature may prescribe. Tbe legislature has said that notice must be given to all parties interested, and the pertinent inquiry is regarding the sufficiency of the notice that was given, not as tested by any constitutional requirement, but as tested by the statute.
The demurrer is sustained. The peremptory writ is denied.
