140 P. 92 | Mont. | 1914
delivered the opinion of the court.
On January 27, 1913, there was filed with the clerk of the district court of Gallatin county a petition for the creation of an irrigation district under the provisions of Chapter 146, Laws of 1909.
The petition suggests a name for the proposed district; describes by government subdivisions all lands sought to be in-
At the hearing counsel for the petitioners moved to amend by adding to the petition the names of three other qualified petitioners and the description of certain land. The motion was denied pro forma with leave to renew it, but counsel did not avail themselves of the privilege extended. The petitioners also moved to further amend by striking from the petition the names of Nancy L. Woodward, executrix, and “Garnett Bros.,” and the descriptions of all lands accredited to these parties in the petition. This motion was denied—the court assigning as its reason that “it appears upon the face of the petition that these persons are the owners of lands susceptible of irrigation from the same general source, and included within the boundaries of the proposed district.” The court then proceeded to ascertain whether the petition was in fact signed by a majority 'of the holders of title or evidence of title to the lands described therein, and upon such hearing it was made to appear that two of the signers are homestead entrymen, and a third is a desert entry-
The avowed purpose of Chapter 146 above is to provide for the creation, organization and management of irrigation districts. When one of these districts is created it becomes a public corporation with certain enumerated powers, among which are to procure an irrigation system by purchase or construction, and to pay for the same and for the upkeep or running expenses. The management is vested in a board of three commissioners appointed for their initial term by the court, and elected thereafter annually by the land owners of the district who are qualified electors under the Act. Upon this board are conferred very extensive powers. The members are allowed compensation for their services, are permitted to employ clerical help, engineers, common laborers and others, at the expense of the district; to incur indebtedness, to purchase property, etc. The apparent theory of the statute is the naked right of the majority to rule. It requires a majority of the land owners (using the terms “land owners” herein to indicate the holders of title or evidence of title) who also own a majority of the acreage, to initiate the movement for the creation of one of these districts, but a bare majority may succeed in having a district created over the protest and objection of the minority. While there is an initial
These observations upon the general character of the legislation are made to indicate the extent to which all the proceedings as against a minority land owner are m invitum, and jthe extent to which the minority member is at the mercy of the majority. His property may be encumbered against his will and he may be compelled to respond for debts which he never contracted or authorized.
The proceeding is somewhat analogous to that invoked in creating special improvement districts in cities and towns. The power to create one of these districts and certain supervisory control over its affairs after it is created are lodged with the district
The fact that Nancy L. Woodward is executrix of the last will of A. J. Woodward, deceased, of itself means nothing. We are not advised as to the provisions of the will or whether Mrs. Wood- • ward is sole devisee of this particular land, but it is unnecessary to determine whether “Nancy L. Woodward, Executrix,” should be counted as one land owner, for the result would not be affected. While an individual might conduct his business under the name “Garnett Brothers,” we think those terms imply, prima facie, more than one person. This must be so if any attention whatever is paid to the ordinary usage of common English words. The word “brothers” is the plural of “brother” and means more than one. Counting Garnett Brothers as two persons, at least, and the petition on its face discloses that it fails to meet the requirements of sections 1 and 2 of the Act. There are at least sixty-four land owners in this district and the petition was signed by only thirty-two, which is not a majority. When the court heard evidence, the deficiencies of the petition were made all the more apparent. Garnett Brothers are three persons, while of the thirty-two who signed, three are clearly not qualified
Doubtless, if the trial court had felt certain that the petition was prima facie sufficient, it would have permitted' it to be amended by the addition of the names of the three other qualified petitioners; but when it appeared that three of the original petitioners were not qualified to sign, the addition of three other names would not have rendered the petition sufficient. As we said above, after it is shown that the court has jurisdiction, the most liberal rules of procedure should be applied; but in the face of a showing that jurisdiction had not been acquired in the first instance, the court cannot be put in error for failing to do what it had no power to do, or what would have been useless.
Section 4 contemplates that the court may exclude lands from
Upon the entry of the order, the objectors filed a memorandum
No explanation is offered for the presence of the witness Thomas Copenholm. One party to the controversy cannot mulct
The cause is remanded to the district court with direction to strike from the cost bill the item of $12 charged for the witness Thomas Copenholm, and with this modification the order of the district court will stand affirmed.
Modified and affirmed.
Behearing denied April 21, 1914.