191 Ky. 246 | Ky. Ct. App. | 1921
Affirming.
This appeal involves the effect upon and the applicability of the provisions of snb-section 49a of section 2380; Vol. 3, Ky. Stats., to a drainage district which has been established and organized in accordance with the provisions of chapter 64, Session Acts, 1918, and which is now section 2380b, sub-sections 1 to 61, inclusive, of Vol. 3, Ky. Stats. Sub-section 49a, supra, is as follows:
“Discontinuance of Ditches. If at any time a majority in number and amount of those assessed for the maintenance of any public ditch shad petition the county court for a discontinuance of said ditch as a public ditch, the judge shall docket the said petition upon the docket of his court which convenes not less than fifteen days after the filing thereof with him, and issue notices and cause same to be served upon'all parties interested that, at the next term of his court, he will consider the said petition, and if no valid reason is shown against the discontinuance of said ditch, said judge shad enter an order discontinuing same, and after said order of discontinuance is entered, it shall cease to be a public ditch in this state. . . . For the purpose of enabling the county judge to give notice to those interested, the petition seeking the discontinuance of said ditch shall give the names of ad persons interested in the maintenance,of said ditch and owning lands within said drainage district.”
The controversy as to the applicability to and the effect of the provisions of the section, supra, upon a drainage district established in accordance with the requirements of section 2380b, Ky. Stats., arose in the following way. On May 17, 1919, a petition was filed by the requisite number of landowners in the proposed district, in the county court, seeking the establishment of a drainage district, in part, in the county of Hickman and in part, in the county of Graves, and denominated the Brush Creek Drainage District. The petition averred that it was the wish of the petitioners to proceed to the establishment of the district as provided by the requirements of section 2380b, supra, and following the filing of the petition all of the statutory steps for the establishment of the district as required and provided for by section 2380b, were duly taken, up to and including the confirmation of the report of thg board of appraisers and the final reference of the
After all of the foregoing had been accomplished, but before any of the proposed improvements for which the district had been established, had been made, the appellants who were, also, of those who had originally been petitioners in the proceeding for the establishment of the district, filed the petition, in this action in the county court, in which they averred that they were a majority of the persons owning lands in the district, and that they owned more than a majority of the acres of land embraced in the district, and prayed a judgment of the court discontinuing it. Their petition was dismissed upon a demurrer in the county court, but they appealed to the circuit court, where the pleadings were completed by the filing of an answer by the board of drainage eoipmis
The appellants, who were the plaintiffs below as before stated, were a portion of those- who were petitioners for the establishment of the district, but they are not now claiming that their petition in this action is in the nature of the exercise of the right of a plaintiff to dismiss his action, and thus to discontinue the district and the proceeding to construct the improvements contemplated, and if such claim was directly asserted, it would be untenable since all the authorities hold .that a portion of the petitioners for the establishment of a drainage district, alike signers of petitions to establish roads, to hold elections and such like, can not withdraw their names from the petition so as to deprive the .person or tribunal, authorized to act upon the petition, of the power to do so, and thus destroy the jurisdiction and render the action futile after the petition has been finally acted upon, and its prayer granted, as in this ease. The attempted withdrawal of a portion of the petitioners after such petition has been finally acted upon and jurisdiction to act asserted, will not affect the power of the tribunal to finish the proceeding upon the behalf of the remaining petitioners. Sims v. Rosholt, 112 N. W. 50; Snedeker v. Sims, etc., 124 Ill. App. 380; Littell v. Vermillion Co., 198 Ill. 205; Munson v. Blake, 101 Ind. 78; Little v. Thompson, 24 Ind. 146; Davis v. Henderson, 127 Ky. 13; Barton v. Edwards, 143 Ky. 712; Dunham v. Fox, 100 Ia. 131.
It will not be disputed, that, a drainage district is a governmental agency for the exercise of a, legislative power and its establishment can be effected only by a delegation of authority for that purpose by the legislature, and likewise such a district can be annulled and discontinued by legislative authority only. It furthermore must be conceded, that when the legislature has delegated authority to discontinue or dissolve a drainage district, the delegated authority must be exercised substantially as provided, both as to time and manner, in order to effect a dissolution or discontinuance of a district. People v. Union District 1, etc., 165 Ill. 156. The legislature has delegated no other authority, which authorizes the discontinuance of any part of a drainage district, which has been established, except such as is conferred by sub-section 49a, of section 2380, supra. It will be observed, that by the section, supra, the legislature has not delegated authority, which necessarily authorizes the discontinuance of a drainage district, in toto, but, it authorizes the court, at the suit of a majority, in numbers and amount of those, who are assessed for the maintenance of a ditch, in a drainage district, to discontinue the ditch as a public ditch. The maintenance of. a ditch may not be all the duties, which are delegated to a drainage district, and there may be more than one ditch in such a district — in fact, there may be principal ditches and collateral ones, the maintenance of some of which it may be desirable to be discontinued, while it may be desirable to continue the maintenance of others in the same district. Further, the statute under consideration, provides for the discontinuation of such ditches, only, as are being maintained, and makes no provision for the discontinuance of a district, which has been established, and in which the ditches, if such are provided for in the “Plan of Reclamation” have never been constructed. In the instant case, when the petition was filed, nor as yet, so far as the record shows, assessments had never been made for the maintenance of
The judgment is therefore affirmed.