Ditzel v. Evergreen Highway District , 32 Idaho 692 ( 1920 )

BUDGE, J.

This is an action to enjoin the issuance of bonds by the Evergreen Highway District of Lewis eounty. A general demurrer to the complaint was sustained and the appellant refusing to plead further, judgment was entered dismissing the action. This appeal is from the judgment.

From the complaint it appears that a bond issue of $90,000 for the purpose of construction, improvement and repair of highways within the Evergreen Highway District was authorized at an election called for that purpose in May, 1919. The validity or regularity of the proceedings upon which the bond issue is based is not attacked, but it is sdught to invalidate the issue upon', the theory that the district was not lawfully organized. The only defect in the organization thereof alleged is that the notice of the 'holding of the election for the purpose of determining whether a district should be organized was not published once a week for three successive weeks prior to the day upon which the election was held as required by C. S., sec. 1493, but that the last publication of said notice occurred on the day such election was held, viz., the first day of February, 1913. It is alleged, however, that notwithstanding this defect in the publication of the notice, the result of the election was certified to the board1 of county commissioners which by order made upon its minutes' declared the district duly organized: that one certified copy of such order was filed for record in the office of the county recorder of Lewis county on February 6, 1913, and another transmitted to the Governor, who appointed three commissioners for the district, who in turn met and organized as the highway board thereof on May 3, 1913, “and since said time, the said Evergreen Highway District has exercised all of the functions of a duly created highway district under the laws of the state of Idaho, and has assessed, levied and collected taxes and has improved the highways within said district and has entered into contracts for the improvement of the highways in said district, and has since said third day of May, 1913, carried on the business of a highway district. ’ ’

At the time of the creation of the highway district, sec. 6, chap. 55, Sess. Laws 1911, provided that “. ... in no event shall any action be commenced or maintained .... affecting the validity of such organization after one year from and after the making and entering of the order” of the board of county commissioners declaring the highway district duly organized. Clearly, under the provisions of this statute this action could not be maintained.

The trial court committed no error in holding that the complaint failed to state facts sufficient to constitute a cause of action. The judgment is affirmed. Costs are awarded to respondent.

Morgan, C. J., and Rice, J., concur.