117 Cal. 382 | Cal. | 1897
Lead Opinion
This proceeding was instituted by the hoard of directors of the Central Irrigation District, under the provisions of an act of the legislature, commonly and for convenience designated the “Confirmation Act” (Stats. 1889, p. 212).
The petitioners, as the act provides they may do, set forth: 1. The proceedings leading to, and terminating in, the organization of the' irrigation district; and, 2. The proceedings attending the issue and sale of bonds of the district, and asked that these proceedings be reviewed and declared valid and legal.
Certain persons interested in the district, and owning lands therein, appeared, and, by answer, contested the validity of the proceedings for the organization of the district, as well as the proceedings for the issue and sale of bonds. The findings of the court were in favor of the regularity and legality of all these steps and processes, and the judgment of the court followed accordingly. From that judgment, and from the order denying a new trial, disaffected property owners within the district prosecute these appeals.
One of the property owners, L. P. Drexler, appeared, and interposed to the inquiry as to the legality of the organization of the district a separate defense, to the effect that all such inquiry was barred by the provisions of section 3 of the act of March 7, 1887 (Stats. 1887, p. 30), as amended by the act of March 20, 1891 (Stats. 1891, p. 143).
The so-called irrigation act, or Wright act, was approved March 7, 1887. (Stats. 1887, p. 39.) In 1889, the legislature passed an act which, while entitled an act “ supplemental ” to the Wright act, in law forms no part of that statute. It was an act creating a special proceeding for the determination of the questions enumerated in the act itself. It was a special proceeding authorized to be instituted by but a single class of persons, viz., the boards of directors of irrigation districts, whereby these boards of directors, on behalf of their districts, could demand determination of the question, whether the proceedings relative to the organization, as well as the proceedings relating to the proposed or actual issue and sale of bonds, were due and legal.
Under section 5 of this confirmation act, that no question might arise as to its scope or as to the powers of the court in determining the questions which might arise, it is especially provided that the court shall have jurisdiction “to examine and determine the legality and validity of, and approve and confirm each and all of the proceedings for the organization of said district, under the provisions of said act, from and including the petition for the organization of the district, and all other proceedings w'hich may affect the legality or validity of said bonds, and the order for the sale and the sale thereof.” The rules of pleading and practice not inconsistent with the provisions of the act are made applicable to proceedings under it, and appeals are authorized from the judgment and from the order denying a new trial, saving that such appeals must be taken within ten days from the entry of the order or judgment. This confirmation act neither in terms nor in effect amends any of the provisions of the Wright act. It is an independent
In 1891 the legislature passed an act which, by its title and by its terms, purported to, and in fact did, amend the Wright act of 1887. (Stats. 1891, p. 142.) In amending section 3 of the original act there was inserted the following: “And no action shall be commenced or maintained, or defense made affecting the validity of the organization, unless the same shall have been commenced or made within two years after the making and entering of said order.” ■ “Said order” is the order of the board of supervisors entered upon its minutes and declaring the territory duly organized as an irrigation district.
The Central Irrigation District was organized in December, 1887. This proceeding was instituted in 1893.
-Whatever effect the act of 1891 may have to cut off rights of action or defenses which before its enactment were available to objecting land holders within an irrigation district in any action prosecuted by them, or by way of defense to any action prosecuted against them, we are not here called upon to consider; for it is plain that this provision of the act of 1891 was not designed to curtail the rights of boards of directors to seek a determination of the legality of the organization of their districts under the confirmation act, nor to abridge the
Without, therefore, stopping to consider just what meaning is to be attached to the amendatory provision of the statute of 1891, we hold that it has no application to proceedings instituted by boards of directors on behalf of their districts for confirmation of their organi- . zation, and of their bond issues under the act of 1889.
It is next insisted that inquiry upon all questions affecting the validity of the organization of the district is foreclosed by the decision of this court in Central Irr. Dist. v. De Lappe, 79 Cal. 351.
In that case the district brought mandamus against its secretary to compel him to sign and seal certain of its bonds. One of the property owners was allowed to intervene for the purpose of contesting the legality of the bond issue. Certain issues were joined touching the validity of the organization of the district. The
In this instance there is presented, not only another proceeding between different parties, but, in addition, the points to which our consideration is now directed are entirely different from those pressed to determination in the case of De Lappe.
The final objection to a review by this court of the proceedings attending the organization of the district is based upon the proposition that jurisdiction to determine these matters by legislative enactment has been vested in the board of supervisors, and that the decision of that tribunal is final and conclusive. This is an enunciation of the doctrine that where jurisdiction of even an inferior court is dependent upon a fact which
That doctrine, however, cannot here be invoked. The finality of the decision of such an inferior tribunal rests upon the further proposition that, either expressly or by failing to provide for a review of the decision of such inferior tribunal, the law effectually declares that by all other courts it is to be regarded as conclusive. Here, however, the legislature by the confirmation act has provided for a review under direct attack of these very steps and processes, and consequently for a review of the board’s decision upon their regularity and validity. An}' proceeding provided by the law for the purpose of avoiding or correcting a judgment is a direct attack, which will be successful on showing error. (Lower King’s River Rec. Dist. v. Phillips, 108 Cal. 306; Van Fleet on Collateral Attack, 5.)
The proceeding established by the confirmation act is expressly directed to be had to review the determination of the board of supervisors, and therefore all claim of finality for the decision of the board must fall to the ground. In re Madera Irr. Dist., 92 Cal. 296, 27 Am. St. Rep. 106, and Fallbrook Irr. Dist. v. Abila, 106 Cal. 355, 365—indeed, all of the cases which have arisen—recognize this to be the intent and scope of the confirmation act.
Under this disposition of respondent’s preliminary objections, we are brought to the consideration of the points presented by appellants. Of these, the first attacks the irrigation act as violative both of the constitutions of the state and of the United States. But the decisions of this court, together with the decision of the United States supreme court handed down since this appeal was taken, form conclusive adjudications upon these propositions against the contention of appellants. (Turlock Irr. Dist. v. Williams, 76 Cal. 360; Central Irr. Dist. v. De Lappe, supra; Crall v. Poso Irr. Dist., supra; Modesto Irr. Dist. v. Tregea, 88 Cal. 334; In re Madera
The next contention of appellants is that the organization of the Central Irrigation District was illegal, because no sufficient notice was given as required by the irrigation act of the time of the presentation to the board of supervisors of the petition for the formation of the district. The irrigation act provides (section 2) that a petition, signed by the required number of free- * holders of the proposed district, shall first be presented to the board of supervisors, accompanied with a good and sufficient bond. “ Such petition shall be presented at a regular meeting of the said board, and shall be published for at least two weeks before the time at which the same is to be presented, in some newspaper printed and published in the county where said petition is presented, together with a notice stating the time of the meeting at which the same will be presented.” The publication of this notice is an essential prerequisite to conferring upon the board of supervisors jurisdiction to proceed in the matter of the organization. It is by the terms of the act made mandatory that such notice • should be given. The notice when given is the process by which the property owners to be affected are notified and given an opportunity to present their objections to the board of supervisors. The board of supervisors acts in the matter as a court of special and limited jurisdiction. “ The condition (in the irrigation act) that the lands which in the judgment of the board are not benefited shall not be included, renders the determination of the board including them after a hearing a judgment that such lands will be benefited by .the proposed plan of irrigation.” (Fallbrook Irr.. Dist. v. Bradley, supra.) The act does not in express terms declare by whom the notice is to be given, but it may be derived therefrom, by intendment as clear and explicit as though express language had been used, that the petitioners themselves are the persons, and the only persons, empowered to perform and charged with
“Notice, in the sense of the statute, does not mean knowledge. Actual knowledge, or the want of it, cannot be shown. It means the statutory instrumentality of knowledge; the formal process emanating from the source, and served in the manner, prescribed by the statute. The advertisement is the process, and the posting in the public places is the service. The no. tice, then, must be issued by persons authorized by law to issue it, and it seems clear that this fact must be shown on its face by proper authentication, as more formal process must show it. No person can be summoned before a legal tribunal but in pursuance of law, and by persons authorized by law to summon him.” (Minard v. Douglas County, 9 Or. 206; Williams v. Bergin, 108 Cal. 166.)
It is well said in People v. Bennett, 29 Mich. 451, 18 Am. Rep. 107: “There can be no judicial action affecting rights which is not based upon some process or notice whereby the parties interested are subject to the jurisdiction and entitled to be heard. There is no rule of law which requires persons to attend and watch the action of courts, unless the leg'al course has been taken to warn them, and there is no principle of law which would tolerate action upon the fullest notice where the party notified is denied a hearing. Notice is only useful to enable him to obtain a hearing.”
In Niles v. Ransford, 1 Mich. 338, 51 Am. Dec. 95, mortgaged premises were advertised by the mortgagee to be sold under a power of sale in the mortgage, and the mortgagee afterward and before the day of sale assigned the mortgage to a third person, who continued
A similar case is that of Bausman v. Kelley, 38 Minn. 197, 8 Am. St. Rep. 661, and it is there said: “Again, the notice was not upon its face, and did not purport to be, the act of Galusha, but of Hall, the mortgagee. It is an essential quality of a notice that it appear to be given by competent authority, and a notice which upon its face is declared to be the act of a. designated person, and”which as such would be void, cannot be made effectual by proof that it was really the act of another and undisclosed person. A notice by a mere stranger can effect nothing.” To like effect is the case of Roche v. Farnsworth, 106 Mass. 509.
In McVichie v. Knight, 82 Wis. 137, the statute required the calling of an election to vote upon the proposed issuance of municipal bonds. Notice of the election was to be given by the town clerk. The notice in fact was given, and was signed “Thomas Huddleston,” without official designation, but in truth Thomas Huddleston was the town clerk. The court held the notice to be defective, J saying that it was not signed by any person as town clerk, and therefore did not show that it was given by the town clerk as the law required.
In Eaton v. Supervisors, 42 Wis. 317, the statute re
In Commonwealth v. Barrett (Ky., Oct. 27, 1891), 17 S. W. Rep. 336, a condition in the statute provided that the law should become effective upon its approval by a majority of the voters of the county, at an election to be held on a designated date, after notice by the sheriff of the election published in three consecutive issues of the legal newspaper. The act and the notice were published. The published notice was not signed by the sheriff," and was held not to be a compliance with the act, as it was impossible for the voters to tell whether or not the notice was official, and the court said: “It was vital to the validity of the election. By necessary implication the notice should have been official. The act provided that the sheriff should give it. This meant that he should sign it.”
In Matter of Road Notices, 5 Harr. (Del.) 324, the petition was for a new public road, and, on proof of the form of notice, it appeared that the written notice of intention to prefer the petition had no signature to it. On this objection being made, the court said the notice must be given by some one, and a paper without a signature could not be said to be a notice by anyone of his intention to present a petition, and they held a signature to the notice to be necessary.
In Veeder v. Lima, 19 Wis. 280, the supervisors of the town were authorized by law to subscribe for capital stock of a plank road company, but the question was first to be submitted to the electors of the town, upon the written application of ten or more electors, by the supervisors posting up ten days beforehand in at least five public places Of the town notices of election for that purpose. The court, reviewing the action of the supervisors, said: “No affidavit or affidavits of the posting up of the notices were ever made, deposited, or recorded in the office of the town clerk. At most but two notices were posted, and even those, according to the
In Short v. State, 79 Ga. 550, the well-settled rule is enunciated that the act of every public officer must bear upon its face evidence of its official character, and, therefore, where a tax fieri facias was issued and signed “ William R. Smith,” and it appeared neither by the addition of the word "tax collector” to his signature nor otherwise upon the face of the paper that he was tax collector, it was held not to be a legal process. To the same effect are the cases of Spear v. Ditty, 9 Vt. 282; Taylor v. Burnap, 39 Mich. 739; Smith v. Hard, 59 Vt. 13.
In Minard v. Douglas County, supra, there was under consideration the sufficiency of a notice of the application for laying out a highway, required by the statute to be given to interested parties. The proceedings contemplated by the Oregon statute were well nigh identical with the proceedings contemplated by the Wright act. A petition was to be presented, signed by the requisite number of freeholders, praying for the laying out and opening of a road. At the time of the presentation of the petition the statute required that it should be accompanied by satisfactory proof that notice has been given by advertisement, etc. The notice as given contained all the requisites of notice, saving that instead of being signed by the petitioners, it was signed “A. H. Kennedy, attorney for applicants.” The supreme court of Oregon ably and elaborately considers the question of notice, reviews the authorities, and reaches the conclusion, with which we are in full accord, that it was the duty of the petitioners under the statute to give the notice, and that this duty was as effectually imposed by intendment as though it had been enjoined upon them by express words; that the notice given was to be in writing, and that the writing necessarily implied a signing and authentication in such unmistakable manner
In answer to this overwhelming weight of authority, respondents claim that in Central Irr. Dist. v. De Lappe, supra, this identical notice was upheld, and in Modesto Irr. Dist. v. Tregea, supra, a notice substantially the same was likewise approved. It is a sufficient answer to this to say that in neither of those cases was the question of the sufficiency of the form of the notice presented to the court for consideration, and the court’s silence, as has been before said, upon a matter to which its attention was not directed, cannot be construed as a determination of the question.
It is further urged against the validity of the organization of the district that the petition for organization was not signed by the requisite number of qualified freeholders. The petition was signed by fifty-eight freeholders. It is insisted that of the fifty-eight, twenty-two were not qualified, because at the time they signed each of them was the owner merely of a town lot, or town lots, or small parcels of land scarcely larger than a lot, in either the town of Maxwell or the town of Williams, the lands whereof had been subdivided into blocks and lots. It can serve no useful purpose to review at length the evidence as to the- real property owned by these twenty-two signers. In each case, however, there were upon part of the lands of these petitioners either dwelling-houses and outhouses, or stores, blacksmith shops, livery-stables, business houses, carpenter shops, etc. The lands of each of these signers were in fact town.lots, and 'used for residence or business purposes. Upon some there were, as usual about country places, flowers, shrubs, and a few orchard trees. In Modesto Irr. Dist. v. Tregea, supra, objection was made to including within an irrigation district any lands within the limits of an incorporated city or town. The question which this court was called upon to determine was, whether it was beyond the power of the supervisors to include such lands under the provisions of the act au
But this determination, as is pointed out in Fallbrook Irr. Dist. v. Abila, supra, is not to be taken as an adjudication that holders of small residence lots in towns and cities are such owners of land, within the meaning of the Wright act, as makes them qualified signers of the original petition for the organization of the district. This presents an entirely different question, and we unhesitatingly hold that they are not such qualified signers, within the spirit of that act. The Wright act contemplates the formation of irrigation districts to improve the condition of farming lands by bringing water upon them. As in reclamation districts the purpose is to improve the lands by carrying off the surplus water, so here it is to better the farming property by conveying the necessary supply of water to the soil. Where a statutory provision is open to construction, the test of the reasonableness of any given construction is what may be done with it. It is necessary, says Chief Justice Shaw, to put extreme cases to test the principle. Bearing- in mind that the purpose for which irrigation districts are permitted to be organized is for the improvement of agricultural lands, if it be held that owners of lots within incorporated cities or towns are qualified signers to the petition for their formation, then the machinery for the organization of such a district might be set in motion by 'fifty owners of small town
Such is not the meaning of the act, nor should an interpretation be given to it which would make such practices possible. Qualified signers to the petition must be the bona fide owners of agricultural land desiring to improve the same by conducting water upon it. To the use of the word “desire” employed by the statute some force must be given. It is unreasonable to suppose that a man whose lot is covered by a drugstore, another upon whose lot is a blacksmith shop and a corral, a third upon whose lot is a residence and the usual shrubs and bushes of a flower garden, desire to irrigate their lands in the sense of the word as employed in the Wright act.
The next .objection of appellants, that the election held for the organization of the district was void because the proclamation for the election was not published by direction of the board of supervisors, is not open to
The principal objections of appellants yet remaining for consideration go to the question of the validity or invalidity of the bond issue, and herein it is insisted: 1. That all the bonds of the district are void, for the reason that notice of the bond election held on April 2. 1888, was not legally given or posted; 2. That all the outstanding bonds of the district, except twelve thousand five hundred dollars thereof, are void, "for the reason that pursuant to the resolution of June 3, 1890, they were issued in place of and substituted or exchanged for bonds originally issued under the resolution of June, 1888,' and the board of directors had no authority to make such reissue, because by the resolution of June 5, 1888, and the issue of the bonds thereunder, the board had exhausted its power to issue bonds; 3. The bonds of the -second form prescribed by the resolution of June 3,1890, are all void, because they are antedated, and do not bear date at the time of their issue.
We think it neither necessary nor yet proper to pass upon these questions.
It is not necessary, because from what has been said it must follow that the district was not legally organized. As a consequence, its right to sell any of the remaining bonds is at an end, and the judgment of the trial court should so decree. Therefore, there can no longer be any interest, either to the district or to intending purchasers, in the determination, and it becomes from this point of view merely a moot question.
It is not proper because some of the bonds (it is insisted) had been sold and had passed into the hands of bona fide purchasers before the institution of this proceeding. These bondholders are not litigating in the matter. A determination without their presence and participation might be embarrassing to a just decision
For these reasons the judgment and order of the trial court are reversed.
McFarland, J., Temple, J., and Harrison, J., concurred.
Concurrence Opinion
concurring. I concur in the judgment and in the views expressed by Mr. Justice Henshaw, except only upon the question as to the sufficiency
Upon that question I express no opinion.
Rehearing denied.
Beatty, C. J., dissented from the order denying a rehearing.
Concurrence Opinion
concurring. I concur in the reversal of the judgment and order upon the ground that in my opinion owners of town lots are not qualified signers of the petition.