State ex rel. Curtis v. Pound

143 N.W. 778 | S.D. | 1913

WHITING, P. J.

Claiming to proceed under the provisions of chapter 134. Laws 1907, as amended by chapter 102, Laws 1909, the Picard of County Commissioners in and for Davison County, made an order establishing a certain drainap;c ditch, and later, the ditch having been constructed, having found that Union township in said county was benefited- thereb}r, such board made an order wherein part of the expense of establishing and constructing such ditch was assessed against such township. Notice of such assessment having been given such township, and the said assessment having been certified to the county treasurer of Davison county for collection, and remaining unpaid, this proceeding was brought in the circuit court, and judgment was rendered for plaintiffs and a peremptory writ issued, commanding- the defendants to make a levy of tax to provide the funds wherewith to pay such assessment. Defendants appealed from such judgment and from an order denying a new trial.

[1] Appellants’ brief fails to affirmatively show that any specifications of error were ever served on respondents and filed with the clerk of the circuit court, as required by chapter 178, Laws 1913, and respondents contend that, for 'that reason, such brief is fatally defective and the assignments of error cannot be considered. While it would be proper for appellants to recite the fact that specifications were so served and filed, we do not deem it necessar3c The statement in the brief should present a recital or assignment of those alleged errors upon which an appellant bases his appeal, together with a copy of, or a statement of the substance of, such parts of the settled record or other papers as may be necessary to clearly and fully present to this court the merits of appellants’ contentions; that a record was properly settled, that a motion for new trial made b}>’ an appellant was property and timely made, and that the appeal was property perfected, will all be assumed without any showing in appellant’s brief that the several steps were property and timely taken; if respondent wishes to raise any questions upon any of these matters, he should do so by an additional statement in his brief setting forth the material facts as they appear of record, which statement will be taken as true unless questioned in an additional brief filed by appellant. Nothing said herein should be taken as excusing- appellant from setting forth in his brief every fact and thing necessary to. fully present ’the merits of everjr assignment of error relied upon, and to show that such errors were prejudicial. This court will therefore presume that the settled record herein contained specifications sufficient to1 sustain the assignments of error urged on this appeal.

[2] Appellants have raised numerous questions by their- assignments of error; we deem it necessary to consider but one, namely: Where, as in the case at bar, the original petition asking for the establishment of a drainage ditch asks for a ditch about one-half mile in length — the description thereof in the petition giving the initial and terminal points— does the filing of such petition vest in the Board of County Commisioners any power, when giving notice of the hearing of such petition, to alter the description of the proposed ditch and describe it as one more than two miles in length, having its initial point nearly two miles from that named in the petition, such description agreeing with the description of the ditch petitioned for only as regards the terminal point? If the boa-rd did not acquire the jurisdiction necessary to authorize it to give such notice, then the whole proceeding’s in this matter, after the filing of the petition, were a nullity as against the township and its officers, as they would have had no notice of same, and there is no pretense that any facts existed which would estop such township from attacking the validity of such proceedings.

Section 2 of the drainage law provides that the county commissioners can act only upon a written petition, which petition “shall set forth * * * a description of the proposed route by its initial and terminal points and its general course, or by its exact course in whole or part.” Section 3 provides for the inspection of the proposed route, and for the surveying of the proposed . drainage, which survey may extend to other lands than those affected by the proposed drainage for the purpose of “determining * * * in part the practicability of the proposed drainage.” Under section 4 the commissioners, after inspecting the proposed route, or after receipt of the surveyor’s report, “shall determine the exact line and ividth of the ditch, if the same shall not be fixed in the petition and shall file their determination with the petition.” They shall then “fix a time and place for .the hearing of said petition and shall give notice thereof by publication * * * and by posting. * * * Such notice shall describe the route of the proposed drainage and the tract of country likely to be affected thereby in general terms,* * * and shall refer to the files in the proceedings for further particulars. Said notice shall summon all persons affected by the proposed drainage to appear at said hearing and show cause why the said drainage should not be established and constructed. * * *” Section 5 provides that: “At such hearing any person interested may appear and contest the statements of the petition and matters set forth in the surveyor’s report and finding of the board as to width and route. The petitioners * * * may be heard in support of the petition. After full hearing the drainage may be established along the line set forth in the petition or in the finding of the board prior to the hearing, or the board may vary the route thereof or its width as deemed practicable or necessary. If the board deem it best to vary said route or to materially change the initial or terminal points of such proposed drainage so that it will pass through other lands than those described in the notice of hearing, * * * the board shall adjourn the hearing and give the owners of such lands notice as in case of the original hearing.”

[3] For all that appears herein, the drainage ditch as established and constructed followed the route described in the notice as published, so that the sole question is as to whether the board had jurisdiction to publish a notice with that description. We think it did not. This is a purely statutory proceeding, whereby special assessments are assessed, levied, and collected, and whereby, in case of failure in payment of such levies, one’s property may be sold to satisfy same. Every step leading up' to such results should be and is clearly marked out and defined by the statute, and such steps must be followed, at least as against any person not estopped, by some act or omission. A reference to section 4 makes it clear that the board- has, prior to. the hearing, no power to change the initial and terminal points, that the only thing they can determine, prior to such hearing, is “the exact' line and with of the ditch, if the same shall not be fixed in the petition.” - It follows that the notice published must, in its description of the proposed route, conform to that in the petition as to the initial and terminal points, and can vary from that in the petition only in respect to those matters of description wherein the description was “not * * * fixed in the petition.” If the petition herein gave jurisdiction to give the notice that was given, then it was sufficient upon which to base a notice for a hearing to consider the establishment of a ditch of any length, and following any course, so long as it was one which would be wholly within Davison county. If the board 'could disregard the initial point, it could also disregard the terminal point.

The judgment and order appealed from are reversed.