State ex rel. First National Bank v. Heath

MR. JUSTICE MATTHEWS delivered the opinion of the court. Appeal from a judgment quashing alternative writ of prohibition. On April 7, 1920, the relator filed in the district court of the county of Stillwater its duly verified petition for a writ of prohibition. The return to the alternative writ joins issue solely on questions of law, and under it all matters properly pleaded in the petition are admitted. From the petition it appears that the “Big Lake drainage district No. 1” was duly organized under the provisions of Chapter 147, Laws of 1915, that the statute was complied with in the subsequent steps taken, and that, after the drain commissioner made his final order determining the boundaries of the district and describing the lands and other property embraced therein, he filed said order with the county clerk, and gave the notices required by the provisions of said chapter. No effort was made by certiorari, within the time provided in the statute, or at all, to review the action of the commissioner in establishing the district, nor was any effort made by any land owner to delay or prevent the making of contracts for the construction of the drain. The contracts were let, and warrants issued aggregating approximately $31,000, of which the relator here holds approximately $11,000 worth. The district, as organized, embraced 231,563 acres of land, and, as alleged in the petition, relator became the owner of the warrants under the belief that such land would be assessed for the construction of the work for which the warrants had been issued, and Without knowledge of any threatened action to exclude from said district any part of said land. In determining the property to be benefited by the drain, and consequently subject to assessment for the work, the drain commissioner in his final report and order declared: “ * * * The county of Stillwater, Montana, for benefits or improve — 347 — rnents by reason of drainage of approximately twelve miles of established county roads, located within said district, which said county is benefited thereby in the sum of approximately $1,000 by reason of said improvement.” Proceeding under section 2 of Article IY of the Act, the county of Stillwater thereupon, and within the time provided by said section, appealed from the final order of the commissioner, and, in conformity with the provisions of the Act, made application to the district court for the appointment of a board of review, and perfected its appeal by the filing of the bond required by the section. It is conceded that the county of Stillwater was the only party affected who appealed in the manner provided by the statute, or at all. Upon the perfecting of its appeal and the making of its application, the district court appointed the respondent board in the manner prescribed. The board thus legally constituted proceeded to canvass and review apparently all of the acts and decisions of the drain commissioner. As to certain lands, protests and claims of exemption from taxation were filed with the board of review, although the time for appeal had long since expired, and apparently, as to other tracts, the board proceeded to review the action of the commissioner without complaint or protest filed. Having concluded their hearings, the board announced* its purpose to file its final report striking from and excluding from the district aproximately 225,000 acres of the land included in the district. In the application for the alternative writ in the lower court it is alleged that the board of review threatens to, and will unless restrained by the court, file said report and exclude from the district said 225,000 acres, leaving approximately 6,000 acres of land in the district. This is admitted by the return to the writ and in argument. The only question thus presented is that of the authority [1] or jurisdiction of the board of review thus created, on the application of a single appellant, to hear and determine the legality of all assessments made and the inclusion of all — 348 — lands in the district by the final order of the drain commissioner. Counsel for the respondent board contend that, under the peculiar wording of the provisions concerning appeal, and particularly the closing paragraph of section 2, Article IY, of the Act, to-wit, “Only one application for a board of review shall be entertained by such district court for any one drain,” there can be but one appeal, and that such an appeal brings before the board the question of the legality and propriety of every act and all orders of the drain commissioner. Chapter 147 of the Laws of 1915 provides for the establishment of drain districts and the construction of drains for the improvement of agricultural lands and the protection of the public health, convenience or welfare. Article I thereof provides for the appointment of a county drain commissioner by any county of the state desiring to Jake advantage of the provisions of the Act, and defines the powers and duties of such commissioner. Article II provides for the establishment of a drain district on application, in writing, describing the boundaries, etc., of the drain and signed by not less than ten freeholders, at least five of whom must be owners of land liable to assessment for benefits in the construction of such drain; said petitioners being jointly and severally liable for the preliminary cost and expenses of determination and survey of the proposed drain. The article then provides for the establishment of the district, the survey of the drain, acquisition of right of way, etc., and the order of establishment by the drain commissioner. Article III provides that upon the release of the right of way the commissioner shall make his final order of determination and shall therein describe the boundaries and the lands embraced in the district, and shall'file the same'with the county clerk, prepare specifications for the work to be done, and give ten days’ notice of the time and place of letting contracts for the work, which notice shall, among other things, describe the several tracts of land included and the manner — 349 — in which the funds for the construction of the drain shall be raised, giving the number of annual assessments, and that “The apportionment of the assessment * * * will be subject to review ten days after the day that the contract for the.construction of the drain is let or awarded.” Article III also provides: “This assessment sheet shall be subject to review as hereinbefore stated ten days after the day of letting the contract.” Article IV, section 1, then provides that, before the day of review, the commissioner shall apportion the per cent of the cost of construction which each tract of land, railroad, city, town, county or irrigation ditch shall bear, and provides the method" of apportionment. Section 2 of Article IV provides as follows: “The owner of any land, ditch or railway assessed for the construction of any drain, who may conceive himself aggrieved by the assessment made by the county drain commissioner, may, within ten days after the day of review provided for in the preceding Article of this Act, appeal therefrom and for such purpose make an application to the district court of the proper county for the appointment of a board of review as hereinafter provided, by serving upon the drain commissioner and by filing with said district court a notice to that effect, and by filing also a bond with such court in the sum of two hundred dollars with one or more sureties to be approved by the clerk of said district court conditioned upon the payment of all costs in case the assessment made by the county drain commissioner shall be sustained. Any county, incorporated city or town assessed a per cent of the cost of the construction of any drain that may conceive itself or themselves aggrieved by the assessment made by the county drain commissioner, may, within ten days after the date of review provided for in the preceding section, appeal therefrom as herein provided. Only one application for a .board of review shall be entertained by such district court for any one drain.” — 350 — Section 3 of the Article provides the manner in which the board shall be appointed, the fixing of the day of hearing, and the qualification of members of the board, and provides for a review of the proceedings establishing such drain by certiorari. It is then provided by section 4 of said Article, as follows: “The board of review shall proceed at the time and place specified in the notice to hear the proofs, and allegations of all the parties in respect to the matter of appeal and shall thereupon proceed to view the lands benefited by such drain and the drainage area, and review all the assessments made by the county drain commissioner. on such drain, and if in its judgment there be manifest error or inequality in such assessment, it shall order and make such changes therein as it may deem just and equitable. Should the board of review find upon personal examination that any land, railway, irrigation ditch, city or town, or any portion thereof, has been included in the drain district and assessed, which is not liable to assessment in accordance with the provisions of section 1 of this Article, then said board of review shall omit such land, railway, irrigation ditch, city or town, or such portion thereof, from such drain district and annul the assessment against it or such portion of it. Should the board of review find upon personal examination that there is any tract of land, railway, irrigation ditch, city or town, or any portion thereof, liable to assessment for the construction of the drain in accordance with the provisions of section 1 of this Article, which has not been assessed, it shall add such land or portion thereof to the drain district, and apportion the per cent of the cost to such.” While the language in which these two sections on appeal is couched may be somewhat Obscure, in our opinion the purport of these provisions and the intention of the legislature are clear. The manner of perfecting an appeal from the order of the drain commissioner is analogous to that provided for an appeal from the justice court to the district court. Notice of appeal is filed with the commissioner and with the — 351 — district court, and the appeal is perfected by the filing of a bond in the sum of $200 for the payment of costs “in case the assessment made by the county drain commissioner shall be sustained.” The appeal being taken, not to the district court, but to a special tribunal to be created under the provisions of the Act, for each special district, it is further provided by the Act that for that purpose (the appeal) an application shall be made to the district court for the appointment of a board of review. The application is not a part of the' appeal, but made for the purpose of providing the necessary machinery for disposing of the appeal. With this distinction in mind, it is clear that the closing paragraph of the section that “only one application for a board of review shall be entertained by such district court for any one drain” has no reference to the number of appeals which may be taken from the action of the drain commissioner. As declared by the section: “The owner of any land, ditch or railway * * * who may conceive himself aggrieved by the assessment made by the * * drain commissioner, may * * * appeal therefrom,” and “any county, incorporated city or town assessed a per cent of the cost of the construction of any drain that may conceive itself * * * aggrieved # * * may * * * appeal therefrom as herein provided.” By section 4, Article IY, the board of review so appointed on the application of a party who conceives himself aggrieved is given authority to hear and determine all matters connected with the action of the commissioner and from his orders in which an appeal lies, and therefore, to avoid the expense and confusion attendant upon the sitting of numerous boards of review at practically the same time, in the same district, and for the same purpose, the legislature wisely provided that no matter how many parties conceiving themselves aggrieved should appeal and call upon the court to provide for a hearing of their appeals, only one application for the appointment of a board of review should be entertained, and that such board should hear and determine all appeals perfected in — 352 — accordance with the provisions of the Act. That such was the clear intention of the legislature is manifest by the opening provision of section 4 of Article IY, that “The board of review shall .proceed at the time and place specified in the notice to hear the proofs and allegations of all the parties in respect to the matter of appeal.” It is inconceivable to us that the legislature could have intended that, as contended by. counsel for the respondents, on the creation of a large drain district, where all the parties affected thereby, with a single exception, were satisfied with the action of the commissioner and the assessments made, a single person, “conceiving himself aggrieved” as to an un-, important tract of land within the district, could appeal, and thereby throw open the door, closed by the limitation expressed in the Act, and permit the board to review every act and every finding of the commissioner, and to exclude more than ninety-seven per cent of the property assessed for the construction of the work, and thus not only defeat the purpose of the petitioners, but render absolutely worthless the warrants issued for work done in strict compliance with the law and in reliance upon the act of the owners of such land in failing to make timely objection to the inclusion of their lands within the district. True, the Act provides that the board of review shall have [2] power to review all assessments and correct manifest errors therein, and to exclude land improperly included, as well as to include lands improperly excluded; but such provisions mean no more than that the board has authority to so act in all matters properly before it for review. The use of the word “review” throughout the Act is significant, and the statute is plain that the reviewing board is to act only in the “matter of appeal.” The word “review” has- a well-understood meaning in the law. In 7 Words and Phrases, page 6214, it is said, quoting from Weehawken Wharf Co. v. Knickerbocker Coal Co., 25 Misc. Rep. 309, 54 N. Y. Supp. 566: “ ‘Review,’ as used in connection with appellate proce — 353 — dure generally, is defined to mean review on appeal, for that is the only method whereby a review may be had.” “The word ‘review,’ when applied to the review by an appellate court of the action of a court of original jurisdiction, has reference to cases which are before the appellate court either on appeal, writ of error or certiorari.” (Bentley v. Reynolds, 190 Mo. 578, 89 S. W. 877.) In this sense the term is used by this court in the case of First Nat. Bank v. McAndrews, 5 Mont. 251, 5 Pac. 279: “This is an appellate court, and has jurisdiction to review the decisions of the lower court.” In 3 Cyc. 411, it is stated that “It is the general rule that only the rights of parties before the court can be adjudicated on appeal, and the rights of persons who are not parties to the appeal cannot ordinarily be considered.” To the same effect is the rule announced in 4 Corpus Juris, page 1112, and again in 15 Corpus Juris, paragraph 93, “Courts,” the rule is stated that “A court cannot of its own motion assume jurisdiction in a particular matter; it is necessary that some person should in some legal way invoke its action.” It is suggested by appellant that our statute was adopted almost bodily from Michigan, and that therefore the decision of the Michigan court in Thomas v. Walker Township Board, 116 Mich. 597, 74 N. W. 1048, to the effect that the board of review is without power to exclude lands which, in its judgment, are not benefited, is applicable; but, as pointed out by counsel for respondents, the Michigan statute, at the time of that decision, had no such provision as is contained in our statute, and an amendment was therefore made conferring on such board authority to add lands to the district, but the amendment does not confer power to exclude lands. (Sec. 3405, How. Mich. Stats.) The case cited is therefore of little avail here. However, the provisions for an appeal from the action of the drain commissioner, under the Michigan statute are identical with ours, and in the case of Smith v. Carlow, 114 Mich. 67, 72 N. W. 22, an action for the recovery of taxes paid under protest, the court says: “Plaintiff introduced evi — 354 — dence tending to show that his land was so remote that it was not benefited by the drain. That question could not be raised in a collateral proceeding. The- statute provides a way for reviewing the action of the commissioner in this regard, and this action is final. (3 How. Stats., sees. 1740d8, 1740e2; Brown v. City of Grand Rapids, 83 Mich. 101, 47 N. W. 117; Township of Caledonia v. Rose, 94 Mich. 216, 53 N. W. 927; Nelson v. City of Saginaw, 106 Mich. 659, 64 N. W. 499.) ” In Washoe Copper Co. v. Hickey, 23 Mont. 319, 58 Pac. 866, this court said: “The statute providing for appeals must be strictly complied with. A failure on the part of the appellant in this regard leaves this court without jurisdiction to entertain the appeal.” The final action of the drain commissioner is an adjudication of the matters therein passed upon,' and is, to the same extent as an adjudication by a court, conclusive, whatever errors of judgment may have been committed, in the absence of timely application for a review of his acts by some one of the modes prescribed by the statute. (Troost v. Fellows, 169 Mich. 66, 134 N. W. 1011; Erickson v. Cass County, 11 N. D. 494, 92 N. W. 841; Oliver v. Monona County, 117 Iowa, 43, 90 N. W. 510.) As constituted by our Act, the board of review is essentially an appellate board or tribunal, established on proper application by the district court to hear and determine all matters properly brought before it in the manner prescribed. Any person interested “who may conceive himself aggrieved” may appeal from the action of the commissioner to this single tribunal established by the court; but each party thus conceiving himself aggrieved must appeal from the action of the commissioner, for on a hearing before the board of review, “the board of review shall proceed at the time' and place specified to hear the proofs and allegations of all the parties in respect to the matter of appealin other words, the board has all of the power enumerated in the statute, when those matters are properly before it on appeal taken by par — 355 — ties conceiving themselves aggrieved, and not otherwise. Clearly, then, the board of review -is without jurisdiction or authority to hear and determine any matter other than that before it on appeal, to-wit, the assessment against Stillwater county, and is without jurisdiction to make the order of exclusion of territory which it will, it is conceded, make unless the writ prayed for shall issue. The judgment of the district court is reversed, with direction to the court to issue its writ of prohibition as prayed for in the petition. Reversed. Mr. Chief Justice Brantly and Associate Justices Holloway, Hurly and Cooper concur.