Miller & Lux Inc. v. Board of Supervisors

The respondents had judgment in an action wherein the appellant petitioned the Superior Court

The petition alleges that on the third day of November, 1919, the Board of Supervisors continued the hearing of the petition until the seventeenth day of November, 1919, on which date the petition came on for hearing, and thereupon the Board of Supervisors passed and adopted a resolution by which it found and determined that all the requirements of the act regarding the organization of said proposed district had been fully complied with; that the petition for the organization of the district was published for at least two weeks before the time at which the same was presented, together with a notice of the time and place at which the petition would be presented; that the same were published and printed in the “Madera Weekly Tribune”. The petition then sets forth that there was no evidence introduced or presented to the Board of Supervisors of said county showing or purporting to show that the petition presented by A. M. Acton and others had been published as set forth in said resolution, or otherwise, and also that no evidence was introduced or presented to the Board of Supervisors showing or purporting to show that prior to the presentation of said petition any notice of such presentation or of the time set forth had been published for at least two weeks before such time, etc.

Upon this appeal only one question is presented, to wit: Was sufficient evidence presented to the Board of Supervisors that notice of the time and place of the presen

Section 2 of the California Irrigation District laws (Stats. 1917, p. 752, §2), among other things, contains the following: “Said petition shall be presented at a regular meeting of said Board and shall be published for at least two weeks before the time at which the same is to be presented,. in some newspaper of general circulation printed and published in the County where said petition is presented, together with a notice stating the time of the meeting at which the same will be presented, etc. . . . When said petition is presented, said Board of Supervisors shall hear the same and shall proceed to determine whether or not said petition complies with the requirements hereinbefore set forth, and whether or not the notice required herein has been published as required, and must hear all competent and relevant testimony offered in support of, or in opposition thereto.”

It will be observed that while the section provides that the petition for the formation of the district shall be published for at least two weeks before the time of its presentation, together with a notice stating the time and place of the meeting when and where it will be presented, there is no provision in the section requiring the Board of Supervisors to ascertain and determine that the petition has been published for two weeks, but only that it shall determine “whether or not the notice herein has been published as required”. The section, however, does require that the petition to be presented shall be published together with the notice, etc. A careful reading of the section also discloses that it fails to point out the procedure to be taken by the Board of Supervisors in ascertaining and determining whether the notice of the time and place of the presentation of- the petition has been published as required by law. Section 2010 of the Code of Civil Procedure being general in its terms, would supply this defect, as it points out a manner in which such proof may be made, although there is nothing in section 2 of the irrigation district laws which would make the method provided for in the Code of Civil Procedure exclusive. However, in the instant case the record does not disclose .any evidence or testimony upon which

As a part of the record upon appeal in this cause a photostatic copy of the petition for the organization of the Madera Irrigation District, together with a notice of the time and place for the hearing thereof, was presented in support of the regularity and sufficiency of the evidence showing publication of notice as required by law, the original of the photostatic copy having been presented to the Board of Supervisors and also to the trial court, as exhibit “A” in this action. By this photostatie copy it appears that the petition, together with the notice, was printed and published as one document, and presented to the Board of Supervisors for their consideration, as one document. The petition and the notice are printed together, the notice following the petition without any separation or distinguishing marks or anything which would indicate that the Board of Supervisors should or could consider the document as other than a petition for the organization of the district, together with a notice of the time and place of the hearing thereof, combining in one document both petition and notice.

The contention of the appellant in this action is based upon" the fact that in a blank space in the affidavit made by the publisher of the “Madera Weekly Tribune”, the newspaper in which the petition, together with the notice, was published, did not contain the word “notice”. The affidavit, after setting forth the" fact that the affiant possessed the necessary qualifications to make the affidavit, reads as follows: “That at all times said newspaper has been established, printed and published in said town of Madera, in said County and State, at regular intervals for more than one year preceding the first publication of the notice herein mentioned; that the petition for organization of the Madera Irrigation District, of which the annexed is a printed copy, was printed and published in said newspaper at least two weeks commencing on the 16th day of October, 1919, and ending on the 30th day of October, 1919, both days inclusive, and as often during said time as said newspaper was regularly issued—October 16, 23 & 30, 1919.” This contention, however, overlooks the fact that the Board of Supervisors had before it the “annexed printed copy” which contained the notice. The provisions of section 2, supra,

Both appellants and respondents have called our attention to the case of the Imperial Water Co. v. Supervisors, 162 Cal. 14 [ 120 Pac. 780 ], and to the language of the opinion relating to the publication of the notice and petition involved therein, which reads as follows: “The proof of the publication of the notice and petition was made by the affidavit of the publisher of the newspaper in which it was made. This was competent and sufficient evidence thereof.” (Citing Code Civ. Proc., sec. 2010.) On behalf of the appellant it is contended that the sufficiency of the affidavit of publication involved in that proceeding was not presented to the "court for consideration, no contention being made in that case relative to its sufficiency. However, as a photostatic copy of the affidavit, petition, etc., for the formation of the Imperial Water District, is made a part of the record, and brought here for our consideration, the original being introduced in the trial court as exhibit “B”, we will quote therefrom the following: “That I am the manager of the Imperial Valley Press, a newspaper of general circulation printed and published in said County and State, and as such manager, have charge of all advertisements in said newspaper ; that the notice of petition for Irrigation District, of which the annexed is a true copy, was published,” etc. The “annexed” and “true copy” in that case presented'to the board of supervisors of Imperial County was the petition for the organization of the district, together with the notice of the time and place of the presentation thereof. It may be, as urged by appellant, that the language found in the opinion of the Supreme Court, with reference to the proof of publication of the notice, has no place therein, but it is

No contention is made that the notice published in the instant case was not sufficient in and of itself; all that is presented, as we have stated, is that sufficient proof of notice was not presented to the Board of Supervisors.

In the case of In re Central Irr. Dist., 117 Cal. 382 [ 49 Pac. 354 ], the sufficiency of the notice was involved. As the law then read, the notice required signatures as well as the petition. The notice in the present case was signed by three of the petitioners. Our attention is called to the following language used by the court in deciding the Central Irrigation District ease, to wit: “Such petition shall be presented at a regular meeting, etc., and shall be published for at least two weeks before the time at which the same is to be presented, in some newspaper printed and published in the county where said petition is presented, together with a notice stating the time of the meeting at which the same will be presented.” The opinion then holds that the notice is the process by which the property owners to be affected are notified and given an opportunity to present their objections, if any, to the Board of Supervisors. It was then held that as the notice was defective in and of itself, in that it did not comply with the law as it then read, the Board of Supervisors of the county in which the proposed district was located never acquired jurisdiction to hear the petition. We find nothing in that case which can be considered as an authority supporting appellant’s contention that the Board of Supervisors of Madera County never acquired jurisdiction to hear the petition for the organization of the Madera Irrigation District. This proceeding was before the Supreme Court upon a demurrer to the appellant’s petition, and the opinion deciding the demurrer appears in 189 Cal. 254 [ 208 Pac. 304 ]. The opinion holds that there must be some proof showing the publication of the notice of the presentation of the petition, but it does not hold that the proof presented to the Board of Supervisors was insufficient,

Being of the opinion that the evidence presented to the Board of Supervisors of Madera County that the petition for the formation of the Madera Irrigation District, together with the notice of the time and place of presenting the petition had been published as required by law, was sufficient to justify the Board of Supervisors in finding both the fact of the publication of the petition and the publication of the notice, it follows that the judgment of the trial court should be affirmed, and it is so ordered.'

Preston, P. J., and Thompson (R. L.), J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on December 19, 1931, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on January 18, 1932.