Progressive Irrigation District v. Anderson , 19 Idaho 504 ( 1911 )

SULLIVAN, J.

This proceeding was begun by the board of directors of the Progressive Irrigation District, located in Bingham and Fremont counties, for the approval and confirmation of all the proceedings for the organization of said district, the issuance of $350,000 worth of bonds of the said district, an apportionment and distribution of the benefits of the land in said district, and the distribution of all costs in said matter.

It appears that the district court of Bingham county had confirmed the proceedings for the organization of said district on November 17, 1909, in which decree the court found that all of the proceedings had been regular and according to law. From that petition it appears that on June 8, 1907, the petition for the organization of said district was filed with the board of county commissioners of said county; that said district was in Bingham and Fremont counties, the greater, part being in Bingham county. Notice of intention to present the petition to said board at its regular July meeting, 1907, was duly given, and the petition was presented at said meeting. The hearing thereon was ordered for August 6. 1907, and the clerk of said board gave due notice thereof. The proper papers were filed in the state engineer’s office more than four weeks before said date. Upon said day the-state engineer’s report had not been received, and said board adjourned the hearing until September 2d, 1907, and on the last-mentioned date a further adjournment was taken until the 14th of October, 1907. Due notice of said adjournments was given. The board considered the matter on October 14, and there being no objection to the organization of said district, an election was ordered to be held December 18, 1907,. and notice thereof given by publication in two newspapers. Said election was held on that date, and on December 23, 1907, the county commissioners met and canvassed the vote and found the result to be seventy-four in favor and two against, and further found that John Empey, James E. Steele, and J. H. Emery had been elected directors. The board of county commissioners, however, did not make their order declaring the district organized until their regular meeting, January 13, 1908. The directors of said district at a meeting held October 6, 1908, formulated its general plan and concluded, that it was necessary to issue bonds in the sum of $350,000, and on February 5, 1909, ordered an election to determine the question of issuing said bonds, which election was held on March 22, 1909, pursuant to notices given and resulted in favor of the bonds, ninety-one votes to eighteen.

A petition was filed in the district court of Bingham county on October 11, 1909, praying for the confirmation of the-organization of said district, and on the same day an order was entered by the court fixing the hearing for November 17, 1909, and notice thereof properly given. Sundry defendants appeared and demurred and a part of the same defendants. answered and filed cross-complaints.

The cross-complaints alleged that said defendants had lands under the Enterprise Canal, which was an independent canal system, and that they had been erroneously included in the Progressive Irrigation District, and by consent the decree of confirmation left such parties out of the district on the ■ground that they received no benefits. On December 17, 1909, the eourt entered its decree whereby it found that all proceedings in connection with the organization of said district-had been regular and according to law, and that there had "been no errors, irregularities or omissions affecting the- substantial rights of any of the interested parties.

It appears that said irrigation district was duly organized •and became a lawful district January 13, 1908, the date when the county commissioners declared that to be the result of the proceedings had before it. The court also decreed that the proceedings in regard to bonding said district were according to law and ratified and confirmed all of said proceedings. Thereafter, on August 4, 1910, the directors of the irrigation district made their estimate of $350,000, and passed their resolution declaring benefits of $11.75 per acre, and made the list of apportionment and distribution under the provisions of sec. 2399, Rev. Codes, after having given the notice required by sec. 2400, Rev. Codes.

The petition for confirmation in this case with the required exhibits attached was filed October 1, 1910, and on the same day the court made an order for a hearing on November 7, 1910, due notice of which was given. General default was entered November 21, 1910, against all defendants except appellant who demurred November 10, 1910. His demurrer was overruled on November 21, 1910, and on the same day the court entered a decree of confirmation, confirming and reconfirming all of the proceedings had in the organization of said district. The decree confirms the organization of said district, the issue of said bonds and the assessment of benefits. This appeal is from said judgment and decree and the whole thereof.

In limine, we will state that the decision in the case of the Irrigation District v. Brose, 11 Ida. 474, 83 Pac. 499, was a confirmation proceeding under the irrigation act of 1903 (Sess. Laws, p. 150). Sec. 11 of that act required the board of directors to commence proceedings to confirm the assessment of benefits; see. 15 required said board to commence special proceedings for the approval of any proposed issue of bonds; and sec. 16 of said act contains the general provisions now found in sec. 2401 of the Rev. Codes, and provides that the board of directors of an irrigation district may go into the district court for confirmation of all of the proceedings, and the entire proceedings in regard to the organization of a district may be confirmed in the one action. While the laws of 1903 do not expressly authorize separate confirmation proceedings at different stages of the matter, said act as amended by see. 2401, Rev. Codes, authorizes a proceeding for confirmation after the organization of the district is completed, or after the authorization of bonds, and again after subsequent proceedings.

In some respects the act of 1907 (Sess. Laws, p. 484) is declaratory of the law as it existed in California. (See Board of Directors v. Tregea, 88 Cal. 334, 26 Pac. 237.) It appears in this case that after the organization of the district and the bond issue provided for, confirmation proceedings were had. Then after the assessment of benefits, this proceeding was brought for the confirmation of the assessment of benefits and also for a reconfirmation of all of the proceedings in connection with said district. By express allegation in the petition, the petitioners did not waive any benefits secured to the district by the first decree of confirmation. While it was not necessary to have the former proceedings reconfirmed, the decree of reconfirmation did not deprive the district of any rights it acquired under the first decree. It may not have given the district any further rights than it then had, and even if the pleader had not plead the first decree, the second petition would have authorized a decree confirming said entire proceedings. Upon those questions, see Fogg v. Perris Irr. Dist., 154 Cal. 209, 97 Pac. 316; People v. Linda Vista Irr. Dist., 128 Cal. 477, 61 Pac. 86. There is no question but that the petitioners had the right to ask for a confirmation of all of said proceedings.

It is next contended that the appellant cannot question the organization of the district, first, by reason of the limitations found in sec. 2377, Bev. Codes, and, second, because of the first decree confirming the organization of the said district. Said section 2377 refers to the completion of the organization of the district, and, among other things, provides as follows: “No action shall be commenced or maintained, or defense made affecting the validity of such organization after two years from and after the making and entering of said order.” The order referred to there is the order made by the board of county commissioners after an election is held for voting upon the organization of an irrigation district. It appears from the record that the order for the organization of said district was made on January 13, 1908, and appellant in this case did not interpose any defense until November 10, 1910, which was more than two years after the organization of said district. The limitation provided in that section was doubtless made to set at rest at an early date the existence of the district in view of its importance, both to the inhabitants and the bondholders.

In Fogg v. Perris Dist., supra, it was held that when the organization of the district was complete, its boundaries and the land included is “notice to the inhabitants of the district and the world. ’ ’ The general doctrine is that no one but the state can challenge the existence of a public corporation. (28 Cyc. 172.) A private party, under our irrigation district law, may appear in the confirmation proceedings and raise the question of due organization if. done within two years after the district is organized. If the district officers do not move to have -confirmation within the two years, a private party has his remedy by a proper action to oust the pretended district and settle the question of the legal organization of such district. (People v. Linda Vista, 128 Cal. 477, 61 Pac. 86.) If this is not done and confirmation takes place, that ends the matter; all parties are bound by the decree of confirmation. In the Linda Vista case, it is held that the confirmation statute was enacted for the very object of binding the state as well as all others, and an attempted quo warranto proceeding after the confirmation proceedings is a collateral attack upon the decree and would not be permitted. It would appear from the provisions of said sec. 2377 above quoted that such a district may have the benefit of the statute of limitations if no action is commenced or maintained or defense made affecting the validity of the organization of such district after two years from and after the making and entering of the order by the board of county commissioners organizing such district.

The supreme court of California had occasion early in the history of the irrigation district law to consider the effect of a decree of confirmation. In Irrigation Dist. v. Tregea, 88 Cal. 334, 26 Pac. 237, the court said:

“The object of the act .... is to provide a security for investors, and promote the advantage of the irrigation districts by enabling the courts of the state to render a judgment binding on all the world as to the validity of bonds to be offered for sale by such districts.”

In Crall v. Irrigation Dist., 87 Cal. 140, 26 Pac. 797, it is said:

“It was doubtless for the purpose of settling all these matters in advance, and thereby making the bonds of irrigation districts more readily salable, and. at better prices than they would otherwise command, that the legislature passed the confirmation act, providing that the districts might, before offering any of their bonds for sale, have all questions affecting their validity judicially and finally determined.”

The doctrine of said California cases was fully approved by this court in the Brose Case, 11 Ida. 474, 83 Pac. 499.

Counsel for appellant contends that the filing of the petition for confirmation waives the statute of limitations. "We cannot agree with that contention. The decree of confirmation stops the running of the statute and binds all parties. Simply because the petitioners prayed for a reeonfirmation of the organization of the district, that fact alone would not reopen the confirmation already had of the organization of such district.

The fact that the county commissioners did not declare the district organized on the. day that they canvassed the vote, but laid it over until the regular meeting in the following January, is assigned as error. There is no merit in that assignment, for if the commissioners had neglected or refused to do their lawful duty in the premises, they could have been compelled to do it. It is not made to appear that said action of the board was to the prejudice of any of the rights of the appellant or the district.

Some question is raised in regard to the jurisdiction of the court to exclude certain lands that were not benefited by the organization of said district. Certain cross-complainants made it appear that their lands were not benefited, and in the decree of confirmation the court found that such lands were not benefited, and excluded them from the district. There was no error in that action of the court, for when it appears to the court that certain lands are not benefited that are contained in an irrigation district, the court has jurisdiction to exclude them before a confirmation of the organization of such district is made.

Some other errors are assigned which we have examined and do not consider it necessary to pass upon each of them separately. However, we find nothing in the assignments of error that would justify a reversal of the judgment.

From the foregoing we conclude that the judgment of the district court must be affirmed, and it is so ordered.

Ailshie, Presiding J., and Budge, District Judge, concur.