145 Iowa 95 | Iowa | 1909
Under the provisions of onr drainage laws the board of supervisors of Greene County, Iowa, established what was known as “Drainage District No. 7,” and pursuant thereto levied assessments for the costs, damages, cost of .construction, etc., of the improvement against all the lands within said district, part of which belonged to appellee Lightner. Lightner appeared before the board, and filed objections to the proposed assessment against his lands, being eight forty-acre tracts lying within the boundaries of the proposed district. The board overruled these objections and assessed each of said forty-acre tracts with its proportion of the costs, expenses, etc. Lightner then appealed to the district court, and on the day set for hearing in that court he filed a motion to cancel the assessments upon the following • grounds:
(1) That there never had been any legal establishment of the drainage district; (2) that the commissioners who made the assessment were not legally appointed; (3) that their return was void because it did not contain written out therein* the scale of one hundred, on which basis the assessments were reported to the board; (4) that the assessment was not made in the manner prescribed by law; (5) that the report of the engineer did not make a proper location of the district; (6) that the published notices on nonresident owners were void, because Paul E. Stillman, one of the petitioners for the drain, was a part owner of the Jefferson Bee, in which the notices were published; (7) same as (6); and (8) that the assessment is void because the contract for the work was let without proper notice. ,
When the motion to cancel the assessment was made, and on its submission appellees offer and tender as witnesses the three persons who were appointed by the board as commissioners to apportion the costs, damages, expenses, etc., in this drainage district, and offered to prove, by each of them, that in performing said duties as such commissioners, that in making the estimates, the lands receiving, in their judgment, the greatest benefit were by them marked on a scale of one hundred, and those benefited in a less degree were with such percentage of one hundred as the benefit received bears in proportion thereto; and that each tract of land within said district was so marked by said commissioners, and on such basis was the assessment against each tract of land in said district assessed, but that through oversight in copying or transferring their said estimates to their report thereon, which was filed with the board through oversight or neglect the said percentages were omitted, from said report; and . appellees now offer, and ask the privilege of amending their report by adding thereto a table showing the percentage- set opposite each tract of land in said district on which the same were based and figured by said commissioners. By the court: overruled and privilege of amendment is refused by the court, to each of which rulings at the- time the appellees excepted.
The motion was then submitted and sustained, and a decree entered accordingly. The appeal is from these rulings.
The objections filed by Lightner before the board of supervisors were as follows:
(a) That there has been no valid or legal assessment made by the commissioners herein in the form and manner prescribed by law, and that said assessment is null, void, and of no force or effect, (b) That said assessment is excessive and not in proportion to the benefits said real estate will derive as compared with other real estate in said drainage district, (c) That th® law under which said as-.
After a hearing upon these objections the board overruled the same, and confirmed the assessments made against Lightner’s property.
The provisions of this act shall be liberally construed to promote the leveeing, ditching, draining and reclamation of wet, overflow or agricultural lands; the collection of the assessments shall not be defeated where the proper notices have been given, by reason of any defect in the proceedings occurring prior to the order of the board of supervisors locating and establishing the levee, ditch, drain or change of natural water course provided for in this act, but such order or orders shall be conclusive and final that all prior proceedings were regular and according to law unless they were appealed from. . . . And the failure to appeal from' the order of the board of supervisors of which complaint is made shall be a waiver of any illegality in the proceedings and the remedies provided for in this act shall exclude all other remedies.
Save, then, as the appeal presents the question of the jurisdiction of the board of supervisors to act at all, appellee Lightner is compelled to rely upon the objections
But however this may be, it is at. most a ease of defective service rather than of no service, and as Lightner did not make this objection before the board, he, by reason of the statute last referred to, waived it.
Moreover it will be observed that this is not an apjieal from an order establishing the drainage district, but rather an appeal from the assessment made after the district was established. The order of the board establishing the district became a finality under the provisions of the statute before quoted.
The claim that the apjoraisers were not properly appointed is in no sense jurisdictional, and this was not made one of the grounds of objection filed with the board. It was therefore waived.
Another notice was then published for one week only, and the board proceeded to let the contract on September 18, 1906. Proof of publication of the notice was by John Ií. Caughlin, as foreman of the Jefferson Bee. It is argued that to readvertise for bids means a republication of notice for the time required originally; and to say the least there is great force in this argument. We do not feel called upon to decide this point, however, for we are constrained to hold that Lightner waived it by not making any such objections before the board. The defect, even if there be one, was not jurisdictional in the sense that it deprived the board of the power to act at all in the premises. It may have been a reason for defeating the assessment had proper objection been made thereto; but it did not deprive the board of power to act in the making of the assessments. This distinction is pointed out in Andre v. City; and Clifton Land Co. v. City, supra, where the question is fully considered. Comstock v. Eagle Grove, 133 Iowa, 589, and Bennett v. Emmetsburg, 138 Iowa, 74, insofar as they announce any contrary doctrine have already been disapproved in the Clifton Land Co. case, supra, and the cases therein cited. Even were this not so they should not be regarded as controlling by reason of the special provisions of section 1989-a46, supra, which seems to rule the question here presented. Here, again, it is not a case of no notice at all, but'of a defective notice, and as no such objection was made before the board it must be considered as waived. In a sense no doubt some notice was jurisdictional, as indicated in the cases relied upon by appellee. But where a notice is given, defects therein must be pointed out in the ohjections filed with the board. Irregularities in the proceedings can not be considered jurisdictional, and they are waived unless they are pre
Description of each forty acres was of like import. Surely this was sufficient. It has been held sufficient as
The trial court was in error in sustaining the motion and in rendering the decree it did. The order and decree must therefore be, and it is, reversed.