Chester v. Einarson

Plaintiffs have petitioned for a rehearing. The principal contention advanced in the petition is that this Court erred in its former opinion in holding that persons who have signed a remonstrance or petition that further proceedings on a petition for the construction of a drain be discontinued may withdraw their names from such remonstrance or petition at any time during the hearing had pursuant to the provisions of RC 1943, Sec. 61-2115. It is asserted that in considering and determining this question this Court overlooked the difference between a petition for the establishment of a drain and a remonstrance or petition to discontinue further proceedings. It is contended that those who remonstrate against the construction of a drain and petition that further proceedings be discontinued may in no event withdraw their names from such remonstrance or petition after the same has been filed. In support of this contention plaintiffs cite 19 CJ 654, Sec 81; 28 CJS 302; 17 Am Jur 805; and Noel v. Van Fleit et al., 205 Ind. 657, 187 N.E. 832, and quote the following statement appearing in 28 CJS at page 303:

"Parties may withdraw their names from a remonstrance but such withdrawal cannot be made after the expiration of the period fixed by statute for filing the remonstrance, no matter how long the delay before the hearing is had, and the court has no authority to extend the time."

This statement is based wholly upon certain decisions rendered by the Supreme Court of Indiana. See, 28 CJS p 303, notes 68, 69, and 70.

Under the statutes of Indiana proceedings for the establishment of a drain must be had in the circuit court or superior court of the county in which the lands of the petitioner or petitioners are situated (Burns' Ann Statutes 1926, Sec 6167), and the issues in the proceeding must be heard and decided by the court. The statute denominates the proceeding an "action" and provides that "any person named in such petition as the owner of lands shall have ten days, exclusive of Sunday, and the day for docketing such action after such docketing, to file with said court any demurrer, remonstrance or objection he may have to the form of said petition. . . ." The statute further provides that "if within twenty days, exclusive of Sundays, from the day set for the docketing of such petition, two-thirds in number of the landowners named as such in such petition, or who may be affected by any assessment or damages . . . shall remonstrate in writing against the construction of such drain or ditch, such petition shall be dismissed at the costs of the petitioners. . . . If no remonstrance shall be filed, and the court deems said petition sufficient, such court shall make an order referring the same to the drainage commissioners above provided for: . . . ." Burns' Ann Statutes 1926, Sec 6169.

The Supreme Court of Indiana has held that parties who have signed a remonstrance against the construction of a drain have the right to withdraw their names from such remonstrance at any time prior to the expiration of the period fixed by the statute within which a remonstrance may be filed, but that after such period has expired the name of a signer may not be withdrawn. Noel v. Van Fleit et al., supra; Note: 15 A E Ann Cas, pp 1127-1128. In Noel v. Van Fleit et al., supra, the court said:

"It is the contention of appellants that the withdrawal of certain remonstrators on the twentieth day, exclusive of Sundays, after the docketing of the cause, did not defeat or render ineffective the two-thirds remonstrance, and that such withdrawals were too late to invalidate the remonstrance. Such contention cannot be sustained. . . . If the withdrawals are filed within the period of twenty days, exclusive of Sundays, from the day set for the docketing of the petition, and if, at the expiration of that period, there are not two-thirds in number of the landowners named in the petition, or who may be affected by any assessment or damages, remaining on the remonstrance, then, in that event, the remonstrance is ineffective and of no force. The withdrawals in the instant case, having been made within the twenty-day period, are effective, and defeat and render ineffective the two-thirds remonstrance."

In State v. Gerhardt, 145 Ind. 439, 44 N.E. 469, 33 LRA 313, the Supreme Court of Indiana had occasion to consider the right of signers to a remonstrance against the granting of a liquor license to withdraw their names. The Indiana statute authorized a board of county commissioners to grant a liquor license but made the granting of such license "subject to the condition and restriction that no remonstrance against the same, signed by a majority of the legal voters of the specified districts, was filed with the auditor three days prior to the beginning of a regular session, at which the application therefor was made." (145 Ind. 648). In the opinion in that case the court said: "Until the beginning of this three days' period, whether the remonstrance had been placed on file or not, any remonstrator must be deemed to have absolute right, by some affirmative act of his own, to withdraw his name from such remonstrance." (145 Ind at p 473). The rule was re-affirmed in Davis v. Affleck,34 Ind. App. 572, 73 N.E. 283.

There are obvious differences between the statutes of Indiana and the statutes of this state relating to the establishment and construction of drains. In Indiana the proceeding for the establishment of a drain is an "action" in court. A remonstrance must be in writing, signed by the remonstrators and filed in such action. The statute fixes a specific limit upon the time within which a remonstrance may be filed, — as a limited period is fixed for interposing answer or demurrer in an action or judicial proceeding. If no remonstrance is filed it becomes the duty of the court to consider the sufficiency of the petition and if it finds the petition to be sufficient then the court is required to make the prescribed order. The laws of this state do not require a remonstrance or petition for discontinuance of the proceedings to be in any particular form. And, as is pointed out in the former decision our laws do not in terms fix a definite time within which a remonstrance must be filed. It is further pointed out that the section (61-2115), providing for the discontinuance of proceedings for the construction of a drain upon petition of two-thirds of the landowners whose land is subject to assessment for the construction of the drain must be construed together with the preceding section (61-2114 as amended by SL 1945, ch 327); and when so construed a remonstrance or petition to discontinue the proceedings may be filed or names may be withdrawn from a remonstrance or petition that has been filed at any time during the hearing held pursuant to RC 1943, See 61-2114 as amended by SL 1945, ch 327, s 1. That these two sections must be construed together is clearly shown by reverting to the original enactment containing these provisions. These sections were enacted as part of ch 125, Laws 1911. We quote from such enactment:

"Upon the filing of the surveyor's report the board of drain commissioners shall fix a date and public place for hearing objections to the petitions and such place for hearing shall be located at some point in the vicinity of the land which will be affected by such drain and that will be the most convenient point for the majority of the land owners affected by the proposed drain to attend. At least ten days' notice of such hearing shall be given by causing five notices to be posted along the line of the proposed drain at such points as will be likely in the opinion of the board to secure the greatest publicity, and in addition a notice shall be sent by registered mail to the last known address of each and every owner of land which may be affected by the proposed drain. Notices of this hearing shall contain a copy of the petition and a statement of the date of filing of the surveyor's report and the date when the board will act upon the petition, and must be signed by the members of the board or a majority thereof. All persons whose land may be affected by any such drain may appear before the board of drain commissioners and fully express their opinion and offer evidence upon the matters pertaining thereto. Should two-thirds of the land owners whose land is subject to assessment for the construction of the proposed drain believe that the benefits to be derived are not equal to the expense of the construction, they may petition the board of drain commissioners to have further proceedings discontinued, whereupon the said board shall by resolution order further proceedings discontinued."

While there are many differences between the laws of Indiana and the laws of this state relating to the construction of drains, there is no difference between the rule announced by the Supreme Court of Indiana as to the right of a signer to a remonstrance to withdraw his name therefrom and the rule which has been announced in the former decision in this case. The Supreme Court of Indiana held that a signer to a remonstrance may withdraw his name at any time prior to the expiration of the period within which a remonstrance may be filed but may not withdraw his name after such period has expired. The Indiana statute fixed a definite period in terms of days within which a remonstrance may be filed. The laws of this state fixed no definite period in terms of days or weeks after a petition for the construction of a drain has been filed within which a remonstrance must be filed. But our laws require the board of drain commissioners to fix a time and place for hearing objections to the petition and at such hearing landowners whose land is subject to assessment for the construction of the proposed drain may petition the board to have further proceedings discontinued. In the former opinion we held that such remonstrance or petition to discontinue may be filed at any time "during such hearing and until the close thereof, but not thereafter"; and that those who have signed a remonstrance or petition for discontinuance may withdraw their names at any time until the time for filing a remonstrance or petition for discontinuance has ended; and that such time expires only when the hearing is closed.

The right to be heard and to offer evidence upon matters pertaining to the establishment of the drain, and to make objection is afforded to "all persons whose lands may be affected" by the drain without regard to whether their lands are subject to assessment for the construction of the proposed drain; but an owner of land which is subject to assessment for the construction of the proposed drain also has the right to "petition the board to have further proceedings discontinued." It is only pursuant to a hearing, as prescribed by RC 1943, Sec 61-2114, that the board can take action. If a petition for discontinuance is presented, it is incumbent upon the board to ascertain and determine whether the petition is signed by a majority of the landowners whose land is subject to assessment for the construction of the proposed drain. If a majority of the landowners whose land is subject to assessment have petitioned that further proceedings be discontinued, then it is the duty of the board to adopt a resolution to that effect. If on the other hand a majority of the landowners whose land is subject to assessment have not petitioned that further proceedings be discontinued, then it is equally the duty of the board to deny the petition for discontinuance and to determine the questions that are presented by the petition for the establishment of the drain.

We adhere to what we said in the former opinion: "Remonstrances could be filed and withdrawals from such remonstrances made during such hearing and until the close thereof, but not thereafter. That is to say, withdrawals could be made from the remonstrances until the board had passed upon the sufficiency thereof and until it adopted a resolution ordering a discontinuance of proceedings."

Plaintiffs further contend that even though the statute permits a signer to withdraw his signature from a remonstrance or petition for discontinuance at any time during the hearing and until the close thereof, the boards of drain commissioners by a mimeographed statement transmitted with the notice of hearing limited the time within which a remonstrance or petition for discontinuance might be filed to the hour specified in the notice for the commencement of the hearing, and that consequently the time for withdrawal of signatures from the remonstrance or petition for discontinuance became and was limited to the same time.

We think the contention is devoid of merit. The record shows that there was published and transmitted to the several landowners by registered mail a notice as prescribed by RC 1943, Sec 61-2114 as amended by SL 1945, ch 327, s 1. The notice set forth the petition for the establishment of the drain and recited that:

"Notice is further given, That the surveyors report and map of said proposed drain with profiles, plans and specifications therefor, and the estimate of cost of said drain and map of the lands drained, in duplicate have been filed with the County Auditor of the County of Walsh and the County Auditor of Pembina County, State of North Dakota, and with the Board of Drain Commissioners of Walsh and Pembina Counties, and said duplicates and maps, and profiles and plans and specifications of the proposed drain and said estimate of cost thereof are now on file in said offices subject to inspection.

"You are hereby further notified that said Boards of Drain Commissioners of Walsh and Pembina Counties have set the 8th day of January, 1946, at the hour of two o'clock P.M. in the Drayton City Hall, in Drayton City, Pembina County, North Dakota, as the time and place for hearing objections to said petition and that at the aforesaid time and place the undersigned Drain Commissioners will meet and convene for the purpose of hearing objections to said petition, and all persons whose lands may be affected by the proposed drain may appear before the said Boards at the aforesaid time and place and fully express their opinion and offer evidence upon the matters pertaining to the establishment of said drain."

Mr. Felson, who served as secretary of the boards, prepared a mimeographed statement with reference to the meeting. He calls attention to the time and place of the meeting and the lands that will be affected by the drain and quotes the estimate of costs and the items thereof as made by the Soil Conservation Service. He closed the letter with the following statement:

"Before said drain can be established a majority of the landowners whose lands are affected must approve of the outlay. If a majority of the landowners affected or likely to be assessed for benefits object and request proceedings discontinued no further proceedings may be had. They the said landowners may petition the Drain Commissioners to stop further proceedings, in other words, if a majority of the landowners affected thereby are of the opinion the proposed drain will cost more than the benefits to be derived therefrom and so petition the drain commissioners to stop proceedings, drain commissioners must deny request for drain. Thus the landowners in said drainage are to have the opportunity to file objections. Bear in mind that said petition or petitions or objections must be filed with drain commissioners, both boards, on or before two o'clock P.M. January 8th, 1946, so said boards will have same for the meeting in Drayton January 8th. Same may be presented at said meeting in Drayton. All landowners who fail to appear or file objections as herein set forth are counted as in favor of the establishment of said drain.

Yours truly, /s/ Wm. W. Felson William W. Felson, Cavalier, N. Dak."

The mimeographed statement does not purport to be a communication from the drain boards. It is a communication from Mr. Felson. The statement makes no reference to withdrawal of signatures from a remonstrance or petition to discontinue the proceedings. The statement does refer to the right of landowners to "petition the drain commissioners to stop further proceedings" and if a landowner was opposed to the construction of the drain and desired to have further proceedings discontinued and had followed the suggestion or advice contained in the statement, his rights would have been protected and preserved in every particular. In our opinion this statement did not and could not have the effect of limiting the time within which a signor on a remonstrance or petition to discontinue proceedings for the establishment of a drain might exercise his legal right to withdraw his name from a remonstrance or petition for discontinuance of the proceedings.

The petition for a rehearing is denied.

CHRISTIANSON, C.J., NUESSLE and BURKE, JJ., and THOM, District J., concur.

BURR and MORRIS, JJ., did not participate.