Opinion
No. 5220.
May 5, 1928.
APPEAL from the District Court of the Seventh Judicial District, for Gem County. Hon. B.S. Varian, Judge.
Action to enjoin issuance of bonds and cancel assessments. Judgment for defendants. Affirmed.
Wm. M. Morgan for Appellant.
The notice of hearing on confirmation of the report of drainage commissioners, provided for in C. S., sec. 4510, and the notice of hearing on the supplemental report, provided for in C. S., sec. 4514, and the service of summons, provided for in C. S., sec. 4534, in case of procedure upon change of plans in the system of improvement or in the manner of the construction thereof in a drainage district, must be given and made substantially in the manner and form prescribed by statute in order that the district court may have jurisdiction to hear and determine the matters presented by the reports mentioned in said secs. 4510 and 4514 or the petition mentioned in sec. 4534. ( Boone v. District Court, 38 Idaho 688, 224 P. 429; Davis v. Board of Commrs., 45 Okl. 284, 137 P. 114, and cases therein cited in opinion on rehearing, page 120.)
The summons set out in paragraph numbered 11 of plaintiff's complaint is insufficient in substance and form to comply with the statute requiring it to be issued and served, and the publication thereof in lieu of proper service of a summons, as by law required, does not afford due process of law as guaranteed by the constitutions of the United States of America and of the state of Idaho. (C. S., sec. 6676; 1927 Sess. Laws, chap. 93, p. 119; C. S., sec. 4534; Fifth Amendment to constitution of the United States of America; Const., art. 1, sec. 13.)
Charles F. Reddoch and Harry S. Kessler, for Respondents.
All land owners, persons or corporations against whom assessments might be levied for the drainage improvements, have paid three annual levies thereon, stood by and permitted the letting of a contract, a change of plans in the system of improvement, the active performance of the contract by the district and the contractor, the adoption of the necessary steps to issue the bonds of the district by which they have estopped themselves of any right they might have once had, to object thereto. ( Page v. Oneida Irr. Dist., 26 Idaho 108, 141 Pac. 238; Hemenway v. Craney, 36 Idaho 11, 208 P. 407; Board of Commrs. v. Plotner, 149 Ind. 116, 48 N.E. 635; Goeppinger v. Board of Supervisors, 172 Iowa, 30, 152 N.W. 58; Hamilton v. Vermillion Special Drain. Dist., 146 Ill. App. 84; Peters v. Griffee, 108 Ind. 121, 8 N.E. 727; Taber v. Ferguson, 109 Ind. 227, 9 N.E. 723; Caldwell v. Village of Mountain Home, 29 Idaho 13, 156 P. 909.)
Assessments having been imposed against all land owners, persons or corporations against whom they might have been legally levied, and all such persons having been notified by published notice, and also by registered mail, upon the original report and by published notice upon the amended and supplemental report, are in no position to complain that someone else did not receive notice, as only those land owners who did not receive notice, if any, can complain. (19 C. J. 736; In re Lightner, 145 Iowa, 95, 123 N.W. 749; Carr v. Boone, 108 Ind. 241, 9 N.E. 110; Ross v. Board of Supervisors of Wright County, 128 Iowa, 427, 104 N.W. 506, 1 L.R.A., N.S., 431; Commissioners of Boone's Pond Mut. Drainage Dist. v. O'Daniel, 291 Ill. 528, 126 N.E. 198; Commissioners of Levee Drainage Dist. v. Shaw, 252 Ill. 142, 96 N.E. 984; Freesen v. Scott County Drainage Levee District, 283 Ill. 536, 119 N.E. 625.)
The notice or summons set out in paragraph 11 of the complaint substantially complied with C. S., sec. 4534, and the form and substance thereof afforded due process of law as guaranteed by the constitutions of the United States of America and of the state of Idaho for the following reasons:
(a) The word "summons" used in this statute should be held to mean "notice." (5 Words Phrases, 1st series, pp. 4843, 4844; 6 Words Phrases, 1st series, pp. 5648, 5650; 3 Words Phrases, 2d series, p. 1244.)
(b) Where one statute adopts, not another particular statute or section, but the general law governing a subject, it adopts the law governing that subject at the time the exigency arises to which the law is to be applied. ( Nampa Meridian Irr. Dist. v. Barker, 38 Idaho 529, 223 P. 529; Dabney v. Hooker, 121 Okl. 193, 249 P. 381; Vallejo N. R. Co. v. Reed Orchard Co., 177 Cal. 249, 170 P. 426; Pittsburgh, C. C. St. L. Ry. Co. v. James, 64 Ind. App. 456, 114 N.E. 833.)
(c) The district having been duly organized, its boundaries fixed and established, the assessments approved and confirmed, the summons or notice published upon the petition for change of plans was notice to every property owner or other person whomsoever affected thereby. ( Little Willow Irr. Dist. v. Haynes, 24 Idaho 317, 133 P. 905; Fogg v. Perris Irr. Dist., 154 Cal. 209, 97 P. 316; Mitchell v. Power (Ariz.), 255 Pac. 481.)
(d) The usual meaning of a word may be disregarded when it is evident that it was incorrectly used, or that the legislature used it in another sense. ( In re Segregation of School Dist. No. 58, 34 Idaho 222, 200 P. 138.)
Appellant brought this action to enjoin the issuance of bonds by respondent district and to cancel assessments made against appellant's lands. The trial court, on stipulated facts, rendered judgment for the defendants, from which this appeal is taken.
The original temporary organization of the district under C. S., secs. 4495 to 4499, not including appellant's land, is stipulated to have been regular. The commissioners, stipulated to have been regularly appointed, made the report contemplated by C. S., sec. 4504, and therein proposed a change of boundaries to include plaintiff's lands, under the provisions of C. S., sec. 4509, and apportioned assessments against all the lands, and against the lands of appellant in the sum of $782.92.
Upon this report, a notice purporting to be in conformity with C. S., sec. 4510, was given of a hearing to be had thereon. This notice was directed to "the land owners and all persons or corporations interested in the lands included in the territory within the boundaries of the proposed Drainage District No. 1 of Gem County." Numerous objections and remonstrances were filed against this report, but no hearing was held thereon. Thereafter, the commissioners filed a supplemental report under C. S., sec. 4514, and a further notice was given of a hearing to be had thereon, which was directed to "the land owners and all persons or corporations otherwise interested in lands included in the boundaries of Drainage District No. 1 of Gem County, or within the proposed enlarged boundaries thereof." The service of these notices is conceded to have been regularly made upon appellant, and all to whom they were directed.
Upon hearing upon this supplemental report, the final organization of the district and the assessments levied were confirmed. Immediately thereafter a transcript of this confirmation was filed, as provided by C. S., secs. 4526 and 4527. Appellant made no objection at the hearing, and took no appeal from this order confirming the organization of the district and the assessments. In the years 1924, 1925 and 1926 the commissioners levied upon all of the lands, including plaintiff's, an assessment of two per cent of the total levy. These assessments were paid by appellant without any protest. Later, and in December, 1927, the commissioners filed a petition for a change of plans under C. S., sec. 4534, and a notice of hearing was ordered and given upon this petition. A hearing was had and the change of plans approved. Thereafter, the commissioners let a contract for improvements, and the contractor has performed work and incurred expense for which the district is obligated in the sum of approximately $20,000. To pay the cost of construction the commissioners have authorized the issuance of the bonds in the sum of $120,000, herein contested.
Appellant contends that the notices, given under C. S., sec. 4510, of the hearing on confirmation of the commissioners' report, and, under C. S., sec. 4514, of the hearing upon the supplemental report, and, under C. S., sec. 4534, of the hearing on proposed change of plans, were each insufficient to give the court jurisdiction to hear those matters, and that the hearings and respective orders made thereon were void, and that thus the assessments levied were and are void, and the proposed bond issue will be void and a cloud upon his title. As to the notices of hearing ordered under section 4510, and the supplemental report under section 4514, appellant relies upon the holding of this court in Boone v. District Court, 38 Idaho 688, 224 P. 429.
The Boone action was prosecuted in a timely manner prior to confirmation. Upon objection at such a stage of the proceedings notices are held to a more strict compliance with statutory requirements than when sought to be contested later by one who, properly notified, has waived objections thereto at the time afforded by statute for such objection. The court therein had before it an explicit showing of facts that the report of the commissioners explicitly sought to include additional territory not included in the original temporary boundaries. The trial court had refused to proceed upon a defective notice running only "to the land owners and any and all persons or corporations owning or interested in lands included in the territory within the boundaries of Drainage District No. 3." It was there specifically brought to the attention of the trial court, and held by this court, that such notice was not notice to the owners of additional lands sought to be included. This court therein held that such notice was "undoubtedly sufficient as to all the land owners within the original boundaries of the district to vest the court with jurisdiction as to them," but that it was not sufficient "as to the land owners within the additional territory sought to be included." In the present instance, the notice was to the land owners and all persons interested in the lands included "or within the proposed enlarged boundaries." The plaintiff was thereby duly notified, and made no protest whatever to the confirmation of the district, and did not appeal from the order of confirmation. He has paid assessments regularly levied without protest; has stood by and seen the district incur the expense of the improvements, and the contractor expend time and money in reliance upon the regularity of the proceedings. Unless the notice was so deficient as to render the proceedings void, he will not be heard to complain, and, as specifically alleged in the answer, he will be estopped to raise such question at this time, both by his conduct and by reason of statute.
Ordinarily, one duly notified cannot complain that some other is not notified, especially after the conclusion of a proceeding in which there was opportunity to present such objection. Silence and a failure to raise the objection will constitute an absolute waiver. Plaintiff, having failed to raise such objection at the time of the hearing, or to appeal from the confirmation, is concluded by C. S., sec. 4513, unless the proceedings are such that the failure complained of in the notice renders them entirely void; in other words, unless they are such an entirety that their being void as to those not notified makes them void entirely ( City of Louisiana v. McAllister, 104 Mo. App. 152, 78 S.W. 314), or failure to give the notice will prevent the creation or confirmation of the district ( Grimes v. Coe, 102 Ind. 406, 1 N.E. 735; Williams v. Osborne, 181 Ind. 670, 104 N.E. 27).
The plaintiff has not alleged the existence of any other persons interested who would be injuriously affected by a failure to receive notice, or who have been deprived of notice. In a proceeding where the party contesting has himself been duly notified, and has waived his opportunity to present such objection in the timely manner afforded by statute, the court, in the absence of any allegation or showing that there are other persons who should have been notified, or who such persons were, or what their interests were, or that they or their interests are such that if the proceedings were void as to them, the invalidity would destroy the entire creation of the district, is not required to presume the existence of such interested parties who might be affected thereby, who should have been notified, and upon any such presumption declare the notice insufficient as to persons who or interests which perhaps do not exist at all, or that such failure to give notice to any such presumed person, is such a failure of notice as would render the proceedings void and destroy the entire creation of the district. ( Turpin v. Lemon, 187 U.S. 51, 23 Sup. Ct. 20, 47 L. ed. 70.)
Counsel further contends that the service of summons on the proposed change of plans was insufficient. C. S., sec. 4534, provides that —
"Upon the filing of said petition the court shall cause a summons to be served, setting forth the prayer of said petition under the seal of the said court, which summons shall be served in the same manner as the service of summons in the case of the original petition, upon all the landowners or other persons having any lien or interest therein appearing of record in said district."
Counsel contends that no "summons" was required "in the case of the original petition," and that either a summons must be served as in civil actions, under C. S., sec. 6676, or that the provision is so indefinite and uncertain as to be incapable of judicial interpretation, and therefore no provision has been made for giving notice of a change of plan. It is true the reference is to service "as the service of summons in the case of the original petition," and that in the case of the original petition a summons is not served, but "a notice of the time and place," together with the "petition," is required to be "published for at least three successive weeks." This requirement has reference only to the method of service, and the summons herein was issued in the form of a summons and was published and thus "served in the same manner as the service" in the case of the original petition.
The judgment is affirmed. Costs to respondents.
Wm. E. Lee, C.J., and Budge, Givens and T. Bailey Lee, JJ., concur.