205 P. 806 | Ariz. | 1922
The opinion of the court, which is brought into review upon this rehearing, is found supra, page 31, 193 Pac. 833. Upon a consideration of the motion for rehearing the court, being in doubt
The first four paragraphs of chapter 5, title 55, Civil Code of 1913, entitled “Drainage Districts,” provide for the organization of such districts. Paragraph 5427 authorizes five or more holders of title or evidences of title to propose the organization of a drainage district. Paragraph 5428 provides that the proposition shall be by a petition to the board of supervisors of the county, signed by the required number of holders of title or evidence of title, which said petition shall be published at least two weeks before presentation in some newspaper published in the county wherein the petition is presented, together with a notice stating the date of the meeting of the board, at which the petition will be presented. Paragraph 5429 imposes a duty upon the board to hear the petition and on final hearing the board may make
The subsequent paragraphs 5431 down to 5483 provide for an election by the land holders to determine if the drainage district shall be organized, to elect directors thereof, for contests of election, for the duties of the board of directors and meetings and powers thereof, and generally for the transaction of the internal affairs of the drainage district, and among other things the voting for and issuing of the district’s bonds.
Paragraphs 5484 to 5488, inclusive, provide for a judicial confirmation of the validity of bonds issued
The appellants did not avail themselves of the right of appeal to the superior court from the decision of the board of supervisors organizing Drainage District No. 4. That they might have done so and had their rights passed upon by the board, tried de novo, is certain. The court would have had the power to inquire as to whether the appellants’ lands would be benefited by the drainage proposed or not, and could' have heard any competent evidence offered upon that issue by the appellants. In other words, every land owner in the proposed district, if he so chose, could have had a retrial of the questions heard by the board of supervisors, in the superior court, and secured therefrom a judgment as to whether his lands were benefited and should be included within the drainage district or not.
This brings us to the crux of the case, and that is this: Does the statute give to a dissatisfied land owner, in addition to the right of an appeal wherein the determination of the board of supervisors including his land in a drainage district may be retried de novo, also give to him in the proceeding for the confirmation of the bonds of the district, the right
We think the meaning to be attached to the confirmatory proceeding provided for in paragraphs 5484 to 5488 is that the court should review the regularity, legality and correctness of what was done before the
“Since the power of the court in the confirmatory proceedings is to ‘judicially examine, approve and confirm’ the proceedings of the board of county commissioners in case it shall find them in conformity with the statutes, and to declare them illegal in whole or in part in case it finds that they are not so, it seems to us to follow that the right of review is confined to the record made by the board. This does not mean that the findings of fact made by the board may not be reviewed in any manner in the reviewing court, but means that such findings can be reviewed only upon the evidence introduced before the board. In other words, if the person controverting the facts which the board must find in order to lawfully establish the district wishes to have the facts reviewed in the confirmatory proceedings, he must cause the
We think this view of the law is the reasonable, logical and sensible view.
The purpose'of the confirmatory proceedings is not to determine whether the organization of the drainage district was legal or not, but to determine the validity of the bonds of the drainage district and to procure a judgment of the court establishing the validity of the bonds, that on the faith thereof the district might realize from the purchasing public the highest possible price. Primarily it is for the benefit of the drainage district and not for any individual land owner therein. Board of Directors, etc., v. Tragea, supra; Crall v. Board of Supervisors, 87 Cal. 140, 26 Pac. 797; Nampa etc. Irr. Dist. v. Brose, 11 Idaho, 474, 83 Pac. 499; Progressive Irr. Dist. v. Anderson, 19 Idaho, 504, 114 Pac. 16.
That the organization proceedings of a drainage district, including the hearing before the board of supervisors and the appeal from their decision, if one be taken, are in a marked degree different from the confirmatory proceedings to validate the bonds of the district, is quite plain. Take, for instance, the form of judgment on appeal from the order of the board of supervisors organizing a drainage district
From a careful consideration of the whole drainage act, we are compelled to come to the conclusion that the question of benefits to lands included in drainage district No. 4 could not be litigated in the proceeding to contest the validity of the bonds of such district; that a land owner dissatisfied with the inclusion of his lands in such district must make his objections before the board of supervisors upon the hearing of petition to organize the district or upon appeal to the superior court as provided in the statute. It follows that the opinion heretofore rendered by this court must be modified to correspond with this announcement of the law, and that the judgment of the lower court should be affirmed.
An examination of our former opinion will disclose that our holding to the effect that the land owner might postpone the question of benefits to his land, until the proceedings to validate the bonds of the district was instituted, was based entirely upon the opinion of the Supreme Court of the United States in Myles Salt Co. v. Board of Commissioners, 239 U. S. 478, L. R. A. 1918E, 190, 60 L. Ed. 392, 36 Sup. Ct. Rep. 204. That case was one to restrain the sale of the plaintiff’s land to satisfy a tax levied by the drainage district. The question was presented upon the pleadings and was as to whether the complaint
“Nothing appeared in the pleading to indicate as here appears, either that the question of benefit to or taxability of the property of plaintiff had been heard or determined by any lawfully established tribunal, or that an opportunity had been given for that purpose. On the demurrer the allegations necessarily were taken to be true as alleged. If nothing else appeared, the demurrer was properly sustained. But the present case is widely different. Written large on the amendment is the provision that notice shall be given, and time fixed for considering protests, and that the council shall hear and determine all objections to the proposed tax.”
Of course, it is necessary that the land owner have an opportunity at some stage of the proceedings to contest the question of benefits. In other words, he is entitled to his day in court. It seems under the local laws involved in the Myles Salt Company case the land owner was given no opportunity to appear upon the organization of the drainage district or to appeal from the determination of the police juries of the parish in which the drainage district was-situated nor otherwise until the tax levy upon his land was made by the drainage district. That being true, the principle of law there announced has no application in the present case. >
It appears that the board of directors of drainage district No. 4, in its original resolution, directing the president and secretary of the board to prepare and have printed or lithographed the bonds of said district, made the due date one year earlier than the law provided. At a subsequent meeting this error having been discovered, another resolution was passed directing said officers to have the bonds printed so that the due dates would comply with the
Another question urged upon the attention of this court by both the appellees and appellants, but which was not discussed in the former opinion is as to the effect of chapter 57, Laws of 1917, entitled “An Act to Supplement Chapter 5, Title 55, Civil Code, Revised Statutes of the State of Arizona, 1913, entitled ‘ Drainage Districts, ’ by Providing for an Alternative System of Levying and Collecting Assessments and Taxes for the Purpose of Such Districts According to Benefits.” We have never considered that chapter 57 has anything to do with the question involved in this case. It does not purport to repeal the Drainage Act of 1913. Its whole tenor and purpose was to preserve that act in its entirety, but at the same time to provide for an alternate system of assessments according to benefits. As to whether chapter 57 violates section 6 of article 9 of the Constitution or whether it is an unconstitutional delegation of legislative power to private parties, as suggested by counsel, are both, as we conceive it, academic questions at this time.
We want to say that the distinguished jurist who wrote the former opinion, in his lifetime and when the motion for rehearing was presented, had come to doubt very seriously the correctness of that opinion in the respect indicated. He had indus
The judgment of the lower court is affirmed.
McALISTER and FLANIGAN, JJ., concur.