Opinion
No. 1964
February 25, 1936
IRRIGATION DISTRICTS — ASSESSMENTS — REDUCTION AFTER LAPSE OF TIME — NEW ASSESSMENTS.
1. Reduction in benefit assessments against some lands in irrigation district in proceeding initiated by district commissioners' petition and notice, stating that assessments would not be changed, held erroneous as increasing burden on other lands (Rev. St. 1931, § 122-721). 2. Improper reduction of benefit assessments against some lands in irrigation district by about 6 per cent of total assessments and over $1 per acre of irrigable lands in districts for construction costs cannot be upheld as de minimis non curat lex (Rev. St. 1931, § 122-721). 3. Fourteen years elapsing since original assessment of benefits to lands in irrigation district and admitted change in conditions apparently requiring reduction of some assessments held to render it advisable that proceedings after reversal of order for such reduction include general reassessment, to be reported to court for confirmation after proper notice (Rev. St. 1931, § 122-721).
APPEAL FROM the District Court, Big Horn County; C.D. MURANE, Judge.
For the appellants there was a brief by Milward L. Simpson of Cody and Harry B. Henderson, Jr. of Cheyenne and oral arguments by Messrs. Simpson and Henderson.
The Greybull Valley Irrigation District was formed July 23, 1920. The Order of Confirmation fixing assessments and authorizing the issuance of bonds was entered under date of June 21, 1921. Practically nothing was done for a period of twelve years, during which time the attorney for the respondents sought to bring about the dissolution of the District. On April 11, 1935, the Commissioners, without notice or vote of members, entered into a loan and grant agreement with the Public Works Administrator, and thereafter applied for a court order for an increase in the amount of assessments. Prior to trial, a large number of withdrawals of lands from the District was permitted, all of which increased the burdens of those remaining in the District. There is nothing in Section 701 of Chapter 122 that authorizes the building of a concrete dam outside the boundaries of the District, at a cost of many times more than the cost of the irrigation work originally contemplated. The Commissioners have not complied with Sections 701, 703, 713, 749 of Article 7, Chapter 122, W.R.S. 1931. Most of the authorities hold that an election is necessary on any proposed bond issue. District v. Tregea, (Cal.) 26 P. 237; Fallbrook District v. Abila, (Cal.) 37 P. 793. Our statute contemplates an election both as to bond issue (Chapter 713, Chapter 122) and as to contracts with the United States Government on which the bonds are to be sold. The landowner must be afforded due process of law. Wiel, 2d Ed., 649; 67 C.J. 1345. The Courts endeavor to place on statutes such construction as will not produce injustice or absurd results. Huber v. Thomas, (Wyo.) 19 P.2d 1042; Selby v. Irrigation District, (Cal.) 35 P.2d 125; Woodruff v. Perry, (Cal.) 37 P. 526; Tregea v. Owens, (Cal.) 29 P. 643; Baxter v. Irrigation District, 68 P. 601. The procedure followed by the district impairs the obligation of a contract. Bank v. Irrigation Dist., (Cal.) 77 P. 937; Irrigation Company v. Public Service Commission, 192 P. 832. The district is without power to incur debt without following the statutes. 67 C.J. 1317; District v. Tregea, supra, Heffner v. Krinn, (Ohio) 120 N.E. 221; Hopping v. City, (Cal.) 150 P. 977. The notice attempted did not comply with the statute. Secs. 1058 and 1059, Chapter 89, R.S. 1931; Hay v. Hudson, 31 Wyo. 150. The order of the court below should be reversed. Respondents seek to modify an order of the court of June 21, 1921, by a proceeding dated April 25, 1935, which is clearly barred by the provisions of Article 23, Chapter 89, W.R.S. Proceedings to modify an order must be commenced, at the latest, within three years after rendition. Secs. 89-2302-2310, R.S. 1931. Sioux Seed Company v. Montgomery, 42 Wyo. 170; Shaul v. C.F. I. Company, 46 Wyo. 549; Midwest Company v. George, 44 Wyo. 25; Boulter v. Cook, 32 Wyo. 461. This is a special proceeding. Luman v. Hill, 36 Wyo. 427; Edwards v. City of Cheyenne, 19 Wyo. 110. The contract is not binding on the government and is invalid because the district officers were not authorized to make it; it was executed under the provisions of the National Industrial Recovery Act, which has been held unconstitutional. Schecheter Poultry Corporation v. United States, 55 Sup. Ct. 852, Panama Refining Company, 79 L.Ed. 223. The amount of the grant is indefinite; no provision is made in the contract or the law for the use of certificates of indebtedness. It is not a contract where both parties are bound. Phillips v. Hamilton, 17 Wyo. 41; Massion v. Mt. Sinai, 40 Wyo. 297; Williston on Contracts, Volume II, Sec. 875. The judgment is not supported by the findings or evidence. Bancroft's Code Pleading, Vol. 1, p. 35. No judgment can stand when it is based on facts not pleaded or findings not justified by the evidence. Sabas v. Gregory, (Conn.) 98 A. 293; Crawford v. Cassity, (Okla.) 190 P. 412; Kingsbury v. Christy, (Ariz.) 192 P. 1114; Mfg. Company v. Combs, (Mo.) 229 S.W. 1072; Schuster Bros. v. Davis, (Iowa) 170 N.W. 292; Chicago R.R. v. Collins, (Ind.) 142 N.E. 634; Hjorth Oil Company v. Curtis, 25 Wyo. 1; Corporation v. Credit Company, 41 Wyo. 198.
For the respondents, there was a brief and oral argument by Ernest J. Goppert of Cody.
The proposal to construct a reservoir with its appurtenant supply canal and diversion dam in the Upper Sunshine Basin is not a new project. The only things that are new are the facts that the District has found a new purchaser for its proposed bond issue; that the bonds will be issued at four per cent interest instead of six per cent interest; that the maturity dates of the principal installments thereof will cover a period of 27 years instead of 15 years, and that the district is to receive an outright grant to cover 30 per cent of material and labor costs in construction. The increase in construction cost necessitates an increased assessment from thirty-three and one-third per cent to forty-two per cent of the assessment benefits last approved, against the lands included within respondent district. The proceedings to modify and amend its assessments and authorize the issuance of bonds were in accord with the law of the state. The district is a public corporation. Sullivan v. Blakesley, 35 Wyo. 73. It was authorized and empowered to improve the water supply for lands within said district. The Irrigation District Law does not require an election concerning these matters. District v. Browne, 13 P. 921; 67 C.J. 1646; 122-721, R.S.; Sullivan v. Blakesley, supra. The proceedings taken were constitutional and legal. Sullivan v. Blakesley, supra; in re Organization of Bench Canal District, 24 Wyo. 142. Many cases hold that constructive notice is all that is required in proceedings of this nature. 67 C.J. 1303; Knowles v. District, (Idaho) 101 P. 81; Hanson v. District, (Wash.) 134 P. 1083; Smith v. District, 156 P. 1133; In re Ft. Shaw Irrigation District, 261 P. 962; Lent v. Tilson, 14 P. 71; Bass v. City of Casper, (Wyo.) 205 P. 1008. The appeal taken here is frivolous and taken for the benefit of delay only. Appellants have abandoned all but three of their specifications of error and violate Rule 14 of this court, by failing to set out a statement of the points and authorities relied upon, and also by failing to refer specifically to the page or portion of the record where the question under discussion arises. The irrigation works may be constructed under this procedure, at an actual cost of less than one-half of that authorized by the order of June 21, 1921. The procedure fixed by statute has been followed in this case, and the order authorizing the district to proceed with construction and issue its bonds was made after reasonable notice to the landowners.
A supplemental brief was filed by appellants out of time and should be stricken. Robertson v. Shorow, 69 P. 1; Lawer Auto Supply v. Teton Auto Company, 43 Wyo. 349; Bishop v. Bramblette, 42 Wyo. 405. This proceeding is not barred by the provisions of Article 23, Chapter 89, R.S. 1931. The question of the validity of the proposed contract between the United States and the Irrigation District is not in issue. The judgment of the trial court is in accord with the prayer of petitioners and is supported by the findings and evidence. The record discloses that out of approximately 800 landowners within the district, only 40 are objecting, representing approximately five per cent of the total lands assessed. What was said by this court in Bass v. City of Casper, supra, is applicable to the construction of irrigation works and improvements within an irrigation district. Appellants have not pointed out any specification of error to which their arguments apply. The order should be sustained.
The appeal is by 44 owners of lands in the Greybull Valley Irrigation District who challenge an order of the district court of Big Horn County changing assessments previously made against the lands in the district and authorizing the commissioners of the district to enter into a contract with the Federal Emergency Administration of Public Works for the construction of the district irrigation works with funds loaned and granted by the United States. The case has been before the court on preliminary motions, 52 P.2d 410.
The commissioners of the district initiated the proceeding by filing a petition which shows the following facts: The district was organized in 1920 under an act of that year which with some amendments is now sections 122-701 to 122-756, R.S. 1931. The commissioners' report, as contemplated by section 122-714, filed in May, 1921, showed that the district contained 85,119 acres of land of which 57,560 acres were irrigable; that the total of the assessments of benefits was $2,641,170, and the assessments for cost of construction were 33 1/3 per cent of the assessments of benefits. The report was confirmed by the district court on June 21, 1921, by an order that authorized the commissioners to proceed with construction of proposed irrigation works according to the plan outlined in their report, and to pay the cost of construction from the proceeds of bonds authorized to be issued in the total amount of $845.000. The works were not constructed because the bonds could not be sold.
The petition further shows that on April 11, 1935, the commissioners signed on behalf of the district an agreement which contemplates that under the National Industrial Recovery Act, through the Federal Emergency Administration of Public Works, the United States will lend and grant to the district not to exceed $1,108,000, to pay for the construction of the irrigation works under the supervision of the Administrator of Public Works. Of the amount so to be advanced, not to exceed $845,000 would be a loan evidenced by bonds of the district, and not to exceed $315,000 would be a grant. The agreement made it necessary that the district obtain from the district court an order satisfactory to the counsel for the Administrator of Public Works, "assessing total benefits available for debt service on the bonds . . . at not less than the amount heretofore fixed and set under date of June 21, 1921 (namely: approximately $2,643,000) and fixing assessments for construction costs . . . in an amount not less than $1,108,000."
The petition alleges that the lands in the district will be benefited in an amount not less than the amount theretofore fixed, without deduction for any assessments theretofore made or paid, and that the assessments of benefits as theretofore made "should be rein stated, reconfirmed and reassessed against each separate tract . . . in an amount equal to that heretofore fixed and determined" by previous orders. (The reference to assessments theretofore "made or paid" is not explained in the petition, but the evidence shows that $60,000, or more, had been spent by the district for services of engineers, attorneys, etc.)
The petition then alleges that the estimated cost of construction is $1,108,000, and that it will be necessary to increase the assessments for cost of construction from 33 1/3 percent to 42 per cent of the assessments of benefits. The petition contains an itemized statement of the assessments, showing the assessments of benefits unchanged, and the assessments for cost of construction increased to 42 per cent of the benefits.
The prayer of the petition was that the assessments be revised, modified, changed, and amended as set out in the petition; that the contract with the United States, signed by the commissioners April 11, 1935, be approved, and the issue of bonds, as provided in the contract, authorized.
The statute (§ 122-720) provides that the order of the district court confirming the report of the district commissioners "shall be final and conclusive" unless appealed from. But under section 122-721 the order may "be revised, modified or changed in whole or in part, on petition of the commissioners, after such notice as the court may require to parties interested." In this case, on the filing of the petition, April 27, 1935, the court ordered notice to be given by publication and mailing of copies of an order which stated the object of the petition, and set the time for filing and for hearing objections. The published order gave notice that the petition prayed for "confirmation, approval and reinstatement by this court of the assessment for benefits in the full amount, without deduction for any payments heretofore made thereon, of each of the several assessments for benefits against each separate lot, tract, parcel, or easement of land, heretofore assessed for benefits and construction" within the district, and that it prayed for an increase in the "assessments for construction," stating the proposed increase in assessments for cost of construction as contained in the petition.
The published notice required objections to be filed by May 25, and set the hearing for June 1. Objections were filed by a number of parties, some of whom were interested in several tracts of affected lands. About 70 of the objectors, including the 44 appellants, filed joint objections, and one of the appellants assuming to speak for all who joined in his objections filed a motion and affidavit for a change of judge on the ground that Judge Metz, the judge of the court, was prejudiced against the objectors. The objections of the other parties, about 45, are not in the record.
The record contains an order, dated July 9, filed July 11 and entered July 26, from which it appears that Judge Metz disposed of all objections, except those in which appellants joined, after a hearing or hearings evidently had some time between June 19 and July 5. The order recites the filing of objections by the various parties; the default of some who failed to appear at the hearing; the appearance and submission of evidence by some 42 objectors, and withdrawal or waiver of objections by two others. It is then recited that the commissioners of the district had made adjustments with 35 objectors, and that in order to carry out the adjustments it was necessary that an amendment be made of the petition filed April 27, 1935, and that said amendment had been presented and should be approved and confirmed. It is then ordered and adjudged that the amendment be filed, and that it had been filed, to carry out the court's findings and determination of the objections of the 35 parties with whom adjustments had been made, and of 7 others. It is further ordered that the objections of said 42 parties be overruled except in so far as they are approved and adopted, as shown by the amendment of the petition. It is then ordered that the petition filed April 27, as amended July 9, and the objections of the parties including appellants, who had moved for a change of judge, be referred to Judge Murane, for final hearing and determination.
The amended petition, filed July 9, referred to in the above order, contains a revised assessment roll showing that the assessment roll of June 21, 1921, as changed by increasing the assessments for cost of construction and with such change reported to the court by the petition of April 27, 1935, has been further changed, evidently to carry out the findings and adjustments mentioned in the order dated July 9, 1935. These last changes reduce the total assessments of benefits from $2,641,170 to $2,484,180 with a corresponding reduction of assessments for cost of construction from $1,109,291 to $1,043,356. From a rather inadequate checking, it appears that the deductions in assessments apply to some 70 tracts most or all of which are owned by the 42 parties whose objections were settled by the order dated July 9.
Appellants' objections were heard before Judge Murane on July 5. It will not be necessary to review the evidence taken at the hearing. Many of appellants' contentions need not be considered. Their objections were overruled by the order appealed from, dated July 16, filed July 20, and entered July 30, which, among other things, declared that the assessments of benefits to the district lands as fixed by the order of June 21, 1921, shall not be changed "excepting only for the decreases made pursuant to the order of this court dated July 9, 1935," and confirmed the assessments as shown on the amended assessment roll contained in the amended petition filed on the last mentioned date.
We think the order must be reversed because reduction in the assessments of benefits was in the circumstances not only irregular and erroneous but perhaps void for want of jurisdiction. The result of a reduction in the assessment of benefits to a part of the lands in the district is an increase in the burden on the other lands. See People ex rel. Davidson v. Cole, 128 Ill. 158, 21 N.E. 6. Such a reduction cannot be upheld in a proceeding initiated by a petition and notice which state that assessments of benefits will not be changed.
We have considered whether the reduction in the assessments of benefits can be disregarded because de minimis non curat lex, and have come to the conclusion that it cannot. The reduction is about 6 per cent of the total assessments, and on assessments for construction cost amounts to more than a dollar for each acre of irrigable land in the district.
Appellants contend that assessments of benefits made in 1921 could not be a proper basis for assessments for the cost of constructing a project fourteen years later. We assume that mere lapse of time would not necessarily show that the assessment of benefits should be changed. But there can be no doubt that during a fourteen year period there may be such a change in conditions that it would be proper to make re-assessment of the benefits that will accrue to the lands under the new conditions. In this case, it is probable that many of the land owners in the district believed that construction plans had been abandoned. There had been a considerable sentiment favorable to a dissolution of the district. Some of the land owners had constructed their own reservoirs. We may assume that the court must have found a material change in conditions to justify the reduction of assessments as shown by the assessment roll filed July 9. The lands had been charged with $60.000 spent by the district on preliminary matters, and the refusal to credit this amount on the assessments has the effect of increasing the assessments of benefits as fixed in 1921. Although it is claimed that the project now proposed is the same as the one proposed in 1921, the estimated cost of construction, as reported in the petition filed April 27, 1935, is more than $227,000 above the estimate of 1921.
In view of the time that has elapsed since the original assessment, and of the admitted change in conditions that apparently requires a reduction in some of the assessments, we think it advisable that future proceedings should include a general re-assesment that should be reported to the court for confirmation after proper notice.
The order appealed from will be reversed, and the proceeding remanded to the district court.
BLUME and RINER, JJ., concur.