180 Iowa 159 | Iowa | 1916
The board of supervisors reduced the assessments against the several tracts of plaintiff’s land, but approved the omission.of 72 per cent of the lands in the district from classification and the apportionment of costs and expenses. The evidence disclosed that the classification of lands according to benefits was with reference to those derived from both dike and ditches, and therefore the second objection was unfounded. The last objection will be disposed of by our conclusion with reference to the first.
After the establishment of a drainage district, under the provisions of Chapter 2-A, Title X, Code Supp., 1913, is the inquiry whether any land included therein will be benefited, open to the commissioners appointed to classify and assess such lands, or are they to assume that the lands will be benefited and. classify and assess accordingly? At
Counsel for appellants concedes that the order establishing the district is thus conclusive on the landowner, but argues that it is otherwise as to the board of supervisors, and relies on certain language in Section 1989-al2, Code Supp., 1913, a portion of which, after directing the appointment of three commissioners, reads:
“The board shall appoint three commissioners, one of whom shall be a competent civil engineer and two of whom shall be resident freeholders of the state not living within the levee or drainage district and not interested therein or in a like question, nor related to any party whose land is affected thereby; and they shall within 20 days after such appointment begin to personally inspect and classify all the lands benefited by the location and construction of such levee or drainage district, or the repairing or reopening of the same, in tracts of 40 acres or less according to the legal or recognized subdivisions in a graduated scale of benefits, to be numbered according to the benefit to be received by the proposed improvement; and they shall make an equitable apportionment of the costs, expenses, costs of construction, fees and damages assessed for the construction of any such improvement, or the repairing or reopening of the same, and make report thereof in writing to the board of 'supervisors. In making the said estimate the lands receiving the greatest benefit shall be marked on a scale of 100 and those benefited in a less degree shall be marked with such percentage of 100 as the benefit received bears in proportion thereto. This classification when finally estab*164 lished shall remain as a basis for all future assessments connected with the objects of said levee or drainage district, unless the board, for good cause, shall authorize a revision thereof. In the report of the appraisers so appointed, they shall specify each tract of land by proper description and the ownership thereof as the same appears on the transfer books in the auditor’s office, and the auditor shall cause notice to be served upon each person whose name appears as owner and also upon the person or persons in actual occupancy of any such land in the time and manner provided for the establishment of a levee or drainage district, which notice shall state the amount of special assessments apportioned to such owner, upon each tract or lot, the day set for hearing the same before the board of supervisors and that all objections thereto must be made in writing and filed with the county auditor on or before noon of the day sel for such hearing. When the day set for hearing shall have arrived, the board of supervisors shall proceed to hear and determine all objections made and filed to said report and may increase, diminish, annul or affirm the apportionment made in said report or in any part thereof as may appear to the board to be just and equitable; but in no case shall it be competent to show that the lands assessed would not be benefited by the improvement, and when such hearing shall have been had the board shall levy such apportionment-so fixed by it upon the lands within such levee or drainage district.”
It will be observed that the commissioners are not authorized to inquire whether the land will be benefited at all, but the entire section proceeds on the theory that every tract of land in the district will be benefited to some extent, and the two things, and the only two, Avhich the commissioners are to do are: (1) To classify the lands on a percentage basis according to benefits; and (2) to equitably apportion the costs and expenses enumerated against
The commissioners, then, failed to perform their duty, as exacted by this statute, in omitting 72 per cent of the lands from classification and assessment. Not only that, but, in undertaking to pass on whether such lands would be benefited, they exceeded their authority and this part of the report was the merest surplusage. Nor do we think that, even had the omitted lands been classified and assessed and so reported by the commissioners to the board of supervisors, said board might have reconsidered the finding that these would be benefited, made in establishing the district, or have omitted them from the assessment roll entirely. If so, then the requirement that the district be established as recommended by a competent engineer would be of no consequence, for it subsequently might be evaded at the will of the board by omitting to assess a portion of the lands previously included. The commissioners’ report necessarily includes all lands in the district as established; the board of supervisors is to pass on objections thereto which are in writing and filed with the county auditor on or before noon of the day.set for hearing, and, in doing so, “shall proceed to hear and determine all objections made and filed to said report and may increase, diminish, annul or affirm