Chicago & Northwestern Railway Co. v. Sedgwick

This appeal is from a decree granting the plaintiff, as a landowner in a drainage district, its prayer for injunctive relief against an alleged void assessment. The action finds its origin in the establishment of the Maple River Drainage District No. 1 in Woodbury County, Iowa, and an attempted levy of an assessment against the right of way and property of the plaintiff railway company, which assessment, having been confirmed by the board of supervisors of said county and certified to the county treasurer and spread upon the tax list of said county, is now about to be collected.

The record facts are undisputed. Under the instant facts, did the voluntary and general appearance of the plaintiff railway company before the board of supervisors at the time appointed for the hearing on the confirmation of the assessments constitute a waiver of jurisdictional defects and preclude the company from an injunctional remedy to prevent the enforcement of the assessment, no appeal having been taken by the company from the action of the board in confirming the assessment, and the record showing indisputably that no valid legal service was had on the company or appearance entered by it relative to the establishment of the district, and that no valid legal service was had on the company as to the confirmation of the assessment of benefits? This question must be answered in the light of the objections of the plaintiff, when and where made.

It is apparent that the board of supervisors of Woodbury County had no jurisdiction of the railway company or its property in the instant matter in the initial step, and that its proceedings and acts in the establishment of the district with reference to the property of the railway company were void. The statute governing the service of notice in this matter (Section 1989-a3, Code Supplement, 1913, Section 7442, Code of 1924) is mandatory and jurisdictional. Minneapolis St. L.R. Co. v. Board ofSupervisors, 198 Iowa 1288; Chicago N.W.R. Co. v. Sedgwick,202 Iowa 33.

It is conclusively shown that, prior to the commencement of the proceedings before the board of supervisors for the establishment of the drainage district in question, the plaintiff railway company had filed in the office of the county auditor of Woodbury County an instrument in writing in conformity to statute, designating H.L. Adams as its agent on whom service of notice should be made, and that said instrument and designation remained on file in said auditor's office during all the proceedings in said drainage district matters. No notice of the proposed establishment of the district was served, as required by statute, and, as the method prescribed is exclusive and jurisdictional, the plaintiff never entered the door of the first room.

There were but two ways whereby the plaintiff company could be brought into the drainage district: (1) By service of notice by registered mail at least twenty days before the hearing on establishment, as required by Section 1989-a3, Code Supplement, 1913, or (2) by the voluntary appearance of the railway company before the board in the establishment proceedings. Neither of these things was done. The drainage district in this case was legally established and valid as to all landowners legally served with notice. Ross v. Board of Supervisors, 128 Iowa 427. The establishment of the district by the board became conclusive upon all non-appearing parties served with legal notice thereof that the lands included received some benefit, and no landowner may thereafter assert that his land was not benefited. Thompson v.Board of Supervisors, 201 Iowa 1099.

The record further discloses that the board, by resolution, appointed a date certain, at which time objections to the classification and assessments would be considered by the board, and fixed a time when such objections could be filed in writing with the county auditor. No notice of this matter was served upon the designated agent of the plaintiff railway company, but it is shown that said company did, within the proper time, file written objections to the proposed assessment against its property, and that these objections were considered by the board of supervisors and overruled. It is upon these objections that the defendant-appellant predicates the waiver, and alleges in the answer to the petition of plaintiff in this case that the plaintiff, having failed to take an appeal from the action of the board in this particular, cannot now collaterally attack said proceeding by way of injunction.

In Minneapolis St. L.R. Co. v. Board of Supervisors, supra, it is said:

"Neither could a proper service of the notice of the fact of the levy of the assessment confer jurisdiction upon appellant with regard to the initial proceedings for the establishment of the drainage district."

We are, therefore, confronted with the question, Did the objections filed by the railway company at the time, as heretofore recited, constitute a waiver of the jurisdictional defects in the initial proceedings? We have repeatedly held that jurisdictional defects are not waived by a failure to appear and object to an assessment, or a failure to appeal from an order adopting an assessment resolution. Equity will grant relief by injunction against an assessment void for want of jurisdiction.Bennett v. City of Emmetsburg, 138 Iowa 67, 85.

A waiver is the voluntary and intentional relinquishment of a known right, benefit, or advantage, and "``depends upon what one himself intends to do.'" Howe v. Sioux County, 180 Iowa 580, with cases cited.

The record in the instant case not only fails to show any intention on the part of the appellee railway company to waive or relinquish its constitutional and statutory right to notice and hearing in the initial proceedings relative to the questions of establishment, damages, wisdom of the project, and whether or not its property should be included in the drainage district, but shows affirmatively that said appellee did not intend to waive or relinquish such right, and the objections of the appellee do challenge the jurisdiction of the board because of its failure to comply with the statutory requirements relative to such establishment, damages, etc.

We are not to be understood that, under certain circumstances, a property owner in a case of this character might not be bound by waiver. In other words, the facts might disclose that the jurisdiction in the first instance was waived, and that he appeared for the purpose of protest, and made objections in other particulars.

"In other words, while there may be no waiver or estoppel wherethe law confers no jurisdiction of the subject-matter, yet, where such jurisdiction is given, mere omission or irregularity in some of the initial steps by which the proceedings are instituted, or in interlocutory matters pertaining to the conduct and development of the proceedings, may always be waived by the party entitled to object thereto, and, when that waiver once becomes effective, it cannot be withdrawn or its effect neutralized by any act on his part." Clifton Land Co. v. City of Des Moines,144 Iowa 625.

However, "if the proceedings were such as to render the assessments absolutely void, then a court of equity has the power to enjoin the collection of such void assessment. Such have been our repeated holdings." Manning v. City of Ames, 192 Iowa 998, with cases cited.

It is said in Union Petroleum Co. v. Indian Petroleum Co.,192 Iowa 1373:

"The fact that no appeal was taken from the assessment made, is not fatal to the objections made by the receiver to the assessment. A void assessment is not subject to statutory provisions governing an appeal from a valid assessment."

Again:

"The power to assess and levy the tax depended upon the legality of what had been done. The ditch had really been constructed by acts of trespass, as the board could have seen, and probably did see. For the construction of such a ditch we do not think that the board had power to assess and levy the tax, and they should have refused to do so." Shepard v. Supervisors ofJohnson County, 72 Iowa 258.

The rule is well established that the statutory conditions precedent to the order or the making of a public improvement must be strictly followed.

"As these are essential to the exercise of power by the city council, they are jurisdictional, without which all subsequent proceedings are invalid." Davenport Locomotive Works v. City ofDavenport, 185 Iowa 151, 155.

This doctrine runs through all our decisions.

"If the tax is void, as claimed by the plaintiffs, equity will grant relief." Chicago, M. St. P.R. Co. v. Phillips, 111 Iowa 377, 380.

If the city council had no authority whatever to assess the property of plaintiff for this improvement, then plaintiff may enjoin the enforcement of the assessment without resorting to the appeal thus provided for.

In Manning v. City of Ames, supra, it was held that the assessments levied for the work done were void, since "the whole proceeding, from beginning to end, was without any jurisdiction * * *. A court of equity had the undoubted jurisdiction to enjoin the collection of any and all assessments levied against the property owners for any of the work done" upon the streets in question.

In Bates v. City of Des Moines, 201 Iowa 1233, it is pointed out that the district plan was not adopted, and consequently the council was wholly without authority or jurisdiction to make the assessment in question, although the defendant contended that the objections filed with the city council did not raise this question. It is said:

"The assessment upon plaintiff's lots, therefore, is absolutely void, and should be annulled though no objections whatever were filed with the city council; and it may be annulled on appeal, as well as by independent suit in equity" (citing cases).

Did the instant appellee waive the initial jurisdiction? We necessarily turn to the objections filed to the classification schedule proposed by the board. They disclose that the plaintiff attempted to point out to the board the reasons why the contemplated assessment should not be made; but the fact stands that the railway company did not waive the statutory requirement as to notice relative to the establishment of the district. The railway company was under no legal obligation to offer any reasons, and might have said, as Falstaff did:

"If reasons were as plentiful as blackberries, I would give no man a reason upon compulsion."

The railway company, however, was not under compulsion, but it voluntarily appeared, in an attempt to educate the board to its viewpoint of statutory requirements. This was the gist and the essence of the objections. The primary protest is found in these words:

"That the board of supervisors of Woodbury County, Iowa, is without jurisdiction to make or levy said assessment, or to approve said report and classification of said commissioners, or to take any action relative thereto, except to dismiss the same, for the reason, among others, that said board of supervisors has not complied with the law in the establishment of said drainage district, and has never obtained, and has not now, jurisdiction to proceed in the matter."

It was the railway company that was making the objection, and it was the assessment as to it to which the objections relate. Other matters recited in the objections in no sense tended to cure or waive the fatal omission to give the notice essential to confer jurisdiction in the establishment of the district in relation to the property of the railway company. Of course, if a property owner appears in the initial proceedings, files objections, or otherwise takes part in the proceedings relative to the establishment or construction of an improvement, jurisdiction exists, whether there has been service of notice or not. Gilcrest Co. v. City of Des Moines, 157 Iowa 525; Ross v. Board ofSupervisors, 128 Iowa 427; Chrisman v. Brandes, 137 Iowa 433;Mackay v. Hancock County, 137 Iowa 88; Goeppinger v. Boards ofSupervisors, 172 Iowa 30.

In Witham v. Union County, 198 Iowa 359, a strip of farm land for a highway was involved, by virtue of certain condemnation proceedings. This case is distinguishable from the case ofMinneapolis St. L.R. Co. v. Board of Supervisors, supra, in that the former involved the sufficiency of the notice; the latter, the service of any legal notice. In the Witham case, there was a service of notice, but it was a defective notice that was served. In the Minneapolis St. L.R. Co. case, there was no legal service whatsoever, and consequently no jurisdiction abinitio.

In the Witham case, the plaintiff appeared at the initial proceedings, and we held that plaintiff, "by his appearance before the board, by filing objections to the proceedings, and claiming that he would be damaged by the proposed change of road, gave the board jurisdiction of his person and property."

In the case at bar, the board of supervisors was privileged to do a certain thing, but it was obligated to do that thing in the manner provided by law. It had an affirmative duty to perform. The defendant cannot now say that, by reason of the entrance of the plaintiff into the second room for the purpose of pointing out to the board divers reasons for non-liability, without waiving jurisdictional defects, the plaintiff is nevertheless bound.

We do not deem other propositions presented in briefs and arguments of controlling importance. With this view of the situation, the decree is — Affirmed.

STEVENS, FAVILLE, and ALBERT, JJ., concur.

EVANS, C.J., and VERMILION and MORLING, JJ., dissent.