State ex rel. Sheffer v. Fuller

83 Neb. 784 | Neb. | 1909

Root, J.

Action in quo warranto to dissolve the Salt Greek Valley Drainage District and oust respondents from acting as directors thereof. A general demurrer to the petition was sustained, and, relator electing to stand upon his pleading, the action was dismissed. Relator appeals. The drainage district, if organized, was created under the act of March 27, 1907 (Ann. St. 1907, sec. 5598 et scq.). The terms of the statute are referred to and thoroughly discussed in State v. Hanson, 80 Neb. 724, and reference is made thereto for an understanding of the act.

I. It is argued that the statute is void in so far as it assumes to authorize the creation of a drainage district within two or more counties; that the proceedings in the case at bar were instituted and carried on in Saunders county, where the greater part of said district is situate, and that, as relator’s land is in Cass county, they are void as to his real estate. We have not been cited any authority to sustain the proposition advanced and are not inclined to adopt it. It is competent for the state to authorize the creation of governmental agencies for the enforcement of its police power, and for the legislature to clothe county commissioners, supervisors, or any other administratrive officer or board with authority to establish a district for the reclamation of swamp, overflowed or wet lands, or lands so subject to inundation as to destroy their utility or to constitute a menace to the public health. The fact that such bodies of land may extend into two or more counties does not render the legislature powerless to include contiguous tracts into one district for the more convenient exercise of the police power. Hagar v. Reclamation District, 111 U. S. 701; Reclamation District v. Hagar, 66 Cal. 54; Shaw v. State, 97 Ind. 23; Hudson v. Bunch, 116 Ind. 63; Updegraff v. Palmer, 107 Ind. 181; People v. Draper, 15 N. Y. 532. That the county board wherein the greater area of the proposed district is situated should act is a reasonable provision. Nor does the act amend the statutes relating to the powers and duties of county commissioners. Nebraska Telephone Co. v. Cornell, 59 Neb. 737.

2. Relator alleges that his land is within the limits of another proposed drainage district, and that the law does not authorize or contemplate the overlapping of those districts so that real estate may be subject to separate assessments in as many distinct districts. The statute does not refer in specific terms to the overlapping of districts, nor does it forbid their formation. While some complications may arise in the prosecution of public improvements on land within two or more districts and in assessments to pay therefor, yet we are of opinion that the objection made is not a serious one. Relator’s land can only be assessed for, and to the extent of, benefits actually bestowed by virtue of the improvements made by any particular district. The assessments can only be laid after notice, and, if the levy is not supported by the facts, the landowner has an ample remedy, by appeal to the courts wherein upon inquiry the truth may he ascertained and a judgment rendered that will amply protect him in his property rights. If his land may be improved by the construction of ditches or dykes in two or more districts, he ought to pay to the limit of those benefits. To hold otherwise would permit the owner of a large tract of land included in a district which had not benefited that land to any appreciable extent to receive the advantage of an improvement made by another district, and yet escape payment therefor. In Shannon v. City of Omaha, 73 Neb. 507, we sustained a municipality in the creation of a second and smaller sewer district within the boundaries of a larger one, and upheld special assessments' laid in the smaller district, and we think that the principle therein announced is pertinent in the instant case.

3. The application for the formation of said district was filed September 25, and five days later an order was made by the commissioners of Saunders county fixing the boundaries of said district. An election was called for October 26, and notices were duly published in a newspaper in Oass and one in Saunders county. This notice, as the statute required, described the boundaries of the proposed district as fixed by the county commissioners. On the 23d of October certain persons, owning about 1,000 acres of land within the proposed district, appeared and made a showing that their lands were already within a drainage district created for the purpose of reclaiming lands adjacent to Wahoo and Olear creeks, and that neither equity, justice nor the public welfare warranted including said lands within the boundaries of respondent district, and thereupon, without notice, said commissioners entered an order modifying their first one and excluding the aforesaid land from respondent district. Notice was not given of the making of the second order except to the seventeen parties who had petitioned for the creation of respondent district. October 26, the day fixed in the published notice, an election was held, and a majority of the votes cast favored the creation of a drainage district, and directors were elected who have since qualified. Relator did not attend or vote at said election, nor did tbe owners of a majority of the acres included in said territory thus vote. Section 5601, Ann. St. 1907, provides that “any one asking shall be given a hearing as to the boundary,” but provision is not made for notice or that the commissioners may not proceed forthwith. The board might well have postponed immediate action. Their orders under said statute are not subject to review by appeal or error proceedings, but their discretion while acting under said statute is practically unlimited. In State v. Ross, 82 Neb. 414, in construing the power of a county board in drainage proceedings initiated under sections 5500 et seq., Ann. St. 1907, it was held that a preliminary order made might lawfully be revoked where the rights of third parties had not accrued. Nc provision is made in either statute for a ■ reconsideration of an order made by the commissioners. In Clark v. Nebraska Nat. Bank, 49 Neb. 800, it was held that, if an eoo parte order is made by a court or judge, the party affected thereby may in a proper case have it set aside, and must request the court to so act before appealing to this court. While the commissioners do not exercise judicial power or act according to the course of the common law under said statute and their orders cannot be reviewed in direct proceedings, yet, upon principle, we incline to the belief that the commissioners had authority,- before the electors had voted, to establish the drainage, district, to modify their order first made, and change the boundaries of the tentative district, and that it was the duty of landowners therein to bring to the commissioners’ attention any facts that would tend to prove that a mistake had been made in fixing the limits of the proposed district.

The vital proposition in this case is whether, under the circumstances, notice not having been given of the change in the boundaries of the proposed district, the election was void. In State v. Hanson, 80 Neb. 724, we held-that an election under said act was not an election within the meaning of the constitution or the general statutes, but the district could only become legally organized and endowed with power to perform its functions by an affirmative vote of a majority of the votes cast at said election. The statute does not direct that actual notice shall be .given the landowners of the limits of the proposed district, but that notice shall be published once each week for three weeks in a newspaper published at the county seat of every county wherein any of the land of the proposed district is situated. The notice must contain the title to the act and a description of the boundaries of the proposed district as fixed by the county commissioners.

We are of opinion that landowners have a right to rely upon the district being formed, if created at all, in conformity with said notice, and, if the commissioners change those boundaries so that the notice does not truly describe them, any landowner who did not have knowledge of the change or participate in that election may, by, timely appeal to the courts, successfully challenge the legal existence of said district. City of Atlanta v. Gabbett, 93 Ga. 266; Payson v. People, 175 Ill. 267.

The judgment of the district court therefore is reversed and the cause remanded for further proceedings.

Reversed.