in which these questions may have been raised.1034 The right then of the authorities to act is dependent upon the proper and legal performance of the necessary steps as required by law and which are usually considered of a jurisdictional character.1035 1034 Brown v. Henderson, 66 Ark. 302, 50 S. W. 501. A report of officials against the construction of a ditch held final and conclusive under Sand. & H. Dig. § 1214. McCaleb v. Coon Run Drainage & Levee Dist., 190 Ill. 549; Tillman v. Kircher, 64 Ind. 104. Where there is nothing in the proceedings or evidence to show that the drain was necessary and conducive to public health, convenience or welfare or a public benefit or utility, the assessment will not be legal. Meehan v. Wiles, 93 Ind. 52. An order of county commissioners establishing a drain to be of public utility and benefit is an appealable order under Ind. St. 1876, p. 357, $ 31. Oliver V. Monona County, 117 Iowa, 43, 90 N. W. 510; Griffith v. Pence, 9 Kan. App. 253, 59 Pac. 677. The finding by a township trustee that the construction of a drain will be conducive to public health and welfare in the absence of a gross abuse of discretion is conclusive and is not subject to collateral attack. City of Springfield v. Gay, 94 Mass. (12 Allen) 612. A determination by a city council of the necessity for the construction of certain drains, the extent of territory benefited, and the respective proportions of the expense to be borne by the city and owners of real estate, cannot be revised by the county commissioners of the county in which the city is located. Hall v. Palmer, 54 Mich. 270; Hackett v. Brown, 128 Mich. 141, 87 N. W. 102; Swan Creek Tp. v. Brown, 130 Mich. 382, 90 N. W. 38; Anketell v. Hayward, 119 Mich. 525; Dodge County v. Acom, 61 Neb. 376, 85 N. W. 292. Lake Erie & W. R. Co. v. Hancock County Com'rs, 63 Ohio St. 23. A jury determining the public necessity of a proposed drain may consider facts brought to their knowledge from a personal view of the premises. 1035 In re Central Irr. Dist., 117 Cal. 382, 49 Pac. 354. In discussing the point made in the text the court said: "The next contention of appellants is that the organization of the central irrigation district was illegal because no sufficient notice was given as required by the irrigation act of the time of the presentation to the board of supervisors of the petition for the formation of the district. The irrigation act provides that a petition. signed by the required number of freeholders of the proposed district, shall first be presented to the board of supervisors, accompanied by a good and sufficient bond. 'Such petition shall be presented at a regular meeting of the said board, and shall be published for at least two weeks before the time at which the same is to be presented, together with a notice stating the time of the meeting at which the same will be presented.' The publication of this notice is an essential prerequisite to conferring upon the board of supervisors jurisdiction to proceed in the matter of A failure to comply with statutory or constitutional provisions in respect to the necessary petition, the inclusion of the lands not contemplated by law or other statutory details, is usually fatal to the proceedings. 1038 Where officials, however, are vested with the organization. It is by the terms of the act made mandatory that such notice should be given." People v. Reclamation Dist. No. 556, 130 Cal. 607, 63 Pac. 27. The de facto existence, at least, of the reclamation district, must be approved in order to support proceedings by it. Huston v. Clark, 112 Ill. 344; Payson v. People, 175 Ill. 267; Richard V. Cypremort Drainage Dist., 107 La. 657. 1036 Fallbrook Irr. Dist. v. Brad ley, 164 U. S. 112; Dakota County v. Cheney, 22 Neb. 437; Casey v. Burt County, 59 Neb. 624, 81 N. W. 851. "Under section 4 * * * a petition for such improvement must be filed with the county clerk, setting forth certain facts, and accompanied by a good and sufficient bond, signed by two or more sure ties, to be approved by the county clerk conditional for the payment of all costs that may occur in case said board of county commissioners shall find against such improvement. It will be observed, by reading the bond filed in the proceeding, that the conditions thereof do not comply with those prescribed in said statute, and such fact is conceded by counsel for appellants; but it is claimed that it is a good common-law bond and that, if it is, it is sufficient to confer jurisdiction upon the county commissioners, at least in the absence of objections to its sufficiency. It is a principle of law well established by the decisions of this court that statutes of the nature of the one in question are to be strictly construed and that, in order to sustain assessments levied under the provisions of such enactments, the record must affirmatively show a compliance with all the conditions essential to a valid exercise of the taxing power. Therefore, before a county board can acquire jurisdiction of a proceeding of this nature, a bond complying strictly with the provisions of section 4 of said chapter must be filed and approved. With the provisions of this section, the bond in several important respects, fails to conform. There are no sureties on the bond, the liability of the principals is limited to a specific sum, and it is not conditioned for the payment of the costs that may occur in case the board finds against such improvement, as the statute requires, but only provides that if, upon view of said route in the petition described, the commissioners shall find in favor of the location of said ditch, then the obligation to be void; otherwise, to be in force. If such a bond is upheld in this case there could be no reason why a bond providing a penalty limited to one cent, or to nothing, should not also be sustained; * It being plain, therefore, that this bond failed in many respects, to comply with the provisions and requirements of said section 4, it must be held to be void for which reason jurisdiction over the matter was not acquired by the county board and its acts thereunder, * were void and of no effect." But a substantial compliance it has been held is all that is neces the power to determine the sufficiency of the averments in a petition or the character of the signatures, their findings in these respects are generally conclusive.1037 In the absence of consti sary. See Brady v. Hayward, 114 Mich. 326. "It is urged that the control was given to the town drain commissioners and not to the county drain commissioners. We think, however, that the section just referred to should be construed in connection with § 1740a7, which provides: "The jurisdiction of the town drain commissioner shall be limited to all drains having their beginning, entire course and terminus within his township. * The county drain commissioner shall have concurrent jurisdiction with the township drain commissioner and shall also have jurisdiction over all other drains within his county,' etc.; and § 1740h9, which provides: 'Drains for which an application has been made or which have been constructed or partly constructed under any provision of law heretofore enacted, may be laid, constructed, completed, relaid, cleaned out, widened, deepened or extended as the case may be under the provisions of this act.' The law should be so construed as to give if possible, effect to all its provisions. If the last named provisions are to be given effect, the contention of the petitioner cannot be sustained. The legislature has indicated its desire to make this law a practical working law, by means of which the beneficial results intended to be accomplished by it can be wrought out. Sec. 1740g1 provides that the proceeding shall not be declared 'absolutely void in consequence of any error or informality of any officer in the location and establishment thereof nor by reason of any error or informality appearing in the record of the proceedings by which any such drain shall have been located and established, nor on account of any irregularity or informality in the condemnation of the right of way nor for want of any record thereof, but the court shall if there be manifest error in the proceedings allow the plaintiff in action to show that he has been injured thereby.' The record discloses that the proposed undertaking is one of great magnitude and importance, involving a great many persons and a great many descriptions of land. The record shows that great care has been taken on the part of the drain commissioner to comply with all the provisions of the law. large sum of money has already been expended in making surveys, securing releases, in advertising and in other ways. It has been twice decided that the proposed drain is a public necessity conducive to the public health. There is nothing to indicate any fraud or want of good faith. Such defects as have been shown are not jurisdictional but are mere irregularities that may be either waived or cured. We think the writ of certiorari should have been dismissed." * A 1037 People v. Reclamation Dist. No. 136, 121 Cal. 522; Reclamation Dist. No 537 v. Burger, 122 Cal. 442; Lower Kings River Reclamation Dist. v. McCullah, 124 Cal. 175; Craig v. People, 188 III. 416, 58 N. E. 1000; People v. Bug River Drainage Dist. Com'rs, 189 Ill. 55, 59 N. tutional provision, however, the legislature may arbitrarily establish drainage districts, the legality of which is not contingent upon affirmative action of the property owners residing within such district,108 and legislation may be passed providing for the creation of sanitary districts without repealing existing laws authorizing the corporate authorities of cities and villages to construct and maintain drains by special assessments.1039 § 448. Proceedings; the petition and its averments. A petition properly signed,1040 definite in its recitals and accurate in its descriptions for the establishment of a drain or drainage district, is usually required. A deficiency in either of these par E. 605; Oliver v. Monona County, 117 Iowa, 43, 90 N. W. 510. 1038 Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112. Tide-Water Co. v. Coster, 18 N. J. Eq. (3 C. E. Green) 518, 90 Am. Dec. 634. "That the legislative authority is competent to effect the end provided for in this act, I can entertain no doubt. The purpose contemplated is to reclaim and bring into use a tract of land covering about one-fourth of the county of Hudson and several thousand acres in the county of Union. It is difficult from the great expense of such works to build roads across it. To remove these evils and to make this vast region fit for habitation and use, seems to me plainly within the legitimate province of legislation. * I have no difficulty, therefore, in concluding that the legislature was fully authorized to adopt measures to accomplish the general design embraced in this act." State v. Hiler (N. J. Law) 47 Atl. 24. "not owners of land" as required by the Wright Act. Shoemaker v. Williamson, 156 Ind. 384, 59 N. E. 1051. A petitioner's signature unaccompanied by an allegation that he is a land owner is not defective. "The argument is that the petition is incurably bad, for failure of the petitioner to allege that he was the owner of land liable to be affected by, or assessed for, the expenses of construction of the ditch. It will be observed that the point made goes to the qualification of the petitioner, and not to the facts required by the statute to be averred. The reading of the statute is that the petition shall set forth the necessity for the ditch, with a general description of the proposed starting point, route and terminus. And this all that the statute prescribes the petition shall contain, but it must be signed by one, who is the owner of the land liable to be affected. The only facts, therefore, essential to the framing of a valid cause of action, are the 1039 Rich v. City of Chicago, 152 statement of the necessity for the Ill. 18. 1040 In re Central Irr. Dist., 117 Cal. 382, 49 Pac. 354. Owners of residence lots in towns and cities held Abb. Corp. Vol. II—11. ditch and a general description of the beginning and ending and route traversed. So far as the sufficiency of the petition is concerned, the ticulars is generally fatal.1041 The petition may operate as a notice, and the only notice to the owners of lands affected, that Coolman v. Wright v. v. qualification of the petitioner might v. Swagger, 74 Ind. 211; Wilson, 95 Ind. 408; Watkins v. Pickering, 92 Ind. 332. Ind. Act March 9, 1875, does not require a drainage petition to be signed by all the landowers affected. Wright v. Wilson, 95 Ind. 408; Wormley v. Wright County Sup'rs, 108 Iowa, 232, 78 N. W. 824. Defining "adjacent" owners within Code 1873, tit. 10, c. 2. Bell v. Cox, 122 Ind. 153; Zumbro v. Parnin, 141 Ind. 430. 1041 Village of Hyde Park v. Carton, 132 Ill. 100, 23 N. E. 590; Craig v. People, 188 Ill. 416, 58 N. E. 1000. A list or schedule containing the names and postoffice addresses of landowners, enclosed and made a part of the petition is sufficient compliance with the statute. People v. Barnes, 193 Ill. 620. But the court in this case decided that the question at issue was what knowledge the petitioners had at the time they filed the petition, of the ownership of the land. They were not charged with the duty of ascertaining the true owners as determined by the legal title. Ross v. State, 119 Ind. 90. The following description held void for uncertainty. "Pt. S. E. 4 of N. E. qr. frac. sec. 7, T. 6, S., R. 5 E." Metty v. Marsh, 124 Ind. 18; Sample v. Carroll, 132 Ind. 496. When the land descriptions follow tax duplicate lists, the description will prima facie sustain an assessment for benefits accruing from the construction of the ditch. Rogers v. Venis, 137 Ind. 221. Richard v. Cypremort Drainage Dist., 107 La. 657; Mathias v. Carson, 49 Mich. 465. A description in a preliminary application giving only the line of the drain without stating its proposed width renders void proceedings to condemn lani for the construction of a drain. Kinnie v. Bare, 68 Mich. 625; Id., 80 Mich. 345. It is not necessary to allege under Laws 1885, No. 227, c. 3, § 1, in the primary petition for the construction of a drain that it is necessary for the public health or highways or that it is a public necessity. Null v. Zierle, 52 Mich. 540; Frost v. Leatherman, 55 Mich. 33; Town of Muskego v. Drainage Com'rs, 78 Wis. 40. The allegation that a town as a whole will be benefited by a drain is not necessary in the petition for the improve Shoemaker V. Williamson, 156 Ind. 384, 59 N. E. 1051. Ind. St. 1894, § 5656, does not require the body of the petition to assert that ment. the signers are landowners. Corey |