Seibert v. Lovell

Kinne, J. [509] I. But two questions need be considered on this appeal: First, when was jurisdiction obtained over the subject-matter of the action; and, second, if jurisdiction once attached, could the power of the board to act be defeated by any subsequent action on part of a part of the petitioners, by their protesting or remonstrating or withdrawing their names from the petition, so as to reduce the number of petitioners below the one hundred required by the statute? The law, in reference to the establishment of drains, levees, ditches, and watercourses is found in chapter 2 of title 10 of the Code of 1873, and in chapter 186 of the Acts of the Twentieth G-eneral Assembly. As amended, the statute requires that “whenever the petition of one hundred legal voters of the county, setting forth that any body or district of land in said county * * * is subject to overflow; or too wet for cultivation; and that in the opinion of petitioners the public health, convenience, or welfare will be promoted by draining or leveeing the same, and also a bond * * * shall be filed with the county auditor, he shall appoint a competent engineer or commissioner, who shall proceed to examine said district of lands, and if he deem it advisable to survey and locate such ditches, drains, levees, embankments, and changes in the direction of watercourses as may be necessary for the reclamation of such lands or any part [510] thereof. * * Section 2, chapter 186, Acts of Twentieth General Assembly. After the commissioner files his report showing the necessity for the improvement, the probable cost, etc., it is provided that “the county auditor shall immediately thereafter, cause notice in writing to be served on the owner of each tract of land along the route of the proposed levee, ditch, drain, or change in the direction of such watercourse, who is a resident of the county, of the pend-ency and prayer of such petition, and the session of the board of supervisors at which the same will be heard, which notice shall be served ten days prior to said session.” Code, section 1208. By section 1209 of the Code it is provided that the supervisors, at the session set for such hearing, shall, if they find the preceding section to have been complied with, hear and determine the petition; and if they find such improvement necessary, and no application shall have been filed for damages as provided in the next section, shall proceed to locate and establish such improvement. Provision is made for the payment of damages in case any are claimed. It appears that prior to the time the remonstrances were filed in this case about five hundred dollars had been expended in making the survey and report touching the proposed improvement. There is no question that the petition as presented to the auditor contained the requisite number of petitioners, nor- is it questioned that at the time the board acted upon the matter enough ‘of the petitioners had protested and remonstrated against granting the prayer of the petitioners to reduce the number of petitioners below the legal number in case said remonstrants and protestants should be treated as no longer petitioners. From the foregoing statutes and facts it is clear that the petition was signed by the requisite number of legal voters of the county, and that such a petition was requisite in order [511] to confer jurisdiction. Now, the record shows that the board found as a fact that the petition as filed contained the required number of petitioners. That was all that was necessary in order to confer jurisdiction when the finding is fully sustained by the facts, as it is in this case. We hold, then, that the question of jurisdiction is to be determined from the petition as it was. when filed, and without regard to the subsequent acts of the petitioners. Richman v. Board, 70 Iowa, 630, 26 N. W. Rep. 24, and 77 Iowa, 513, 42 N. W. Rep. 422. So far as affecting the jurisdiction which had already attached was concerned, the protests and remonstrances were of no effect. They were proper to be taken into consideration by the board in passing upon the merits of the petition, but they were not available for any other purpose. It must be remembered that jurisdiction did not attach as of the date when the board acted, but as of the date when the legal petition was filed. The power to act having been conferred upon the board by virtue of a legal petition, it could not be impaired or taken away by the protests, remonstrances, or attempted withdrawals of some of the petitioners. The question requires no further consideration. 3 II. It is insisted that we should so construe the law as to require that petitioners should reside near, or be interested in, the proposed improvement. To do so would be to make law,. not to construe it. The statute contains no such restriction. All that is required is that one hundred legal voters of the county shall petition in order to set the machinery of the law in motion. We can not override the plain provisions of the statute. If the law is defective in this respect, and the rights of citizens not properly protected, resort must be had to the legislature for relief. The decision of the district court was right, and its judgment is affirmed.