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Berry v. Ringgold County, Iowa

United States District Court, S.D. Iowa, Creston Division
Nov 22, 1929
43 F.2d 169 (S.D. Iowa 1929)


No. 4079.

November 22, 1929.

Frank Wisdom, of Bedford, Iowa, and Donald F. Wisdom, of Creston, Iowa, for plaintiff.

Robert J. Bannister, of Des Moines, Iowa, and H.C. Beard, C.J. Lewis, Frank F. Fuller, and A.I. Smith, all of Mt. Ayr, Iowa, for defendants.

In Equity. Action by Eva Berry against Ringgold County, Iowa, and others.

Action dismissed for want of jurisdiction.

Plaintiff in her petition against board of supervisors of county and other county officers to enjoin such officers and agents of county from doing action depriving plaintiff of her property without due process of law, of equal protection of law, and of immunity guaranteed by Constitution, alleged that action was brought against defendants in their representative capacities and not as individuals; that defendants under pretended petition for establishment of drainage district across plaintiff's land began a series of meetings, pretended resolutions, and contracts to establish drainage district, and pretended to declare benefits conferred on plaintiff's lands and to establish same as special tax against premises; that county auditor and treasurer were about to certify such amount as special tax against lands and to cause to be executed special assessment certificates against plaintiff's lands authorizing treasurer to collect such benefits as special tax; that board of supervisors have threatened to issue bonds including sum about to be assessed against plaintiff's lands; that actions of county officers and supervisors constitute cloud and pretended lien on premises belonging to plaintiff, and, unless restrained, county treasurer will offer premises for sale to satisfy pretended charge and lien; that board of supervisors directed its agents to enter on plaintiff's premises, to create highway and levee across same, and have entered on lands in establishment of pretended drainage district and denuded lands of valuable timbers and otherwise damaged premises to plaintiff's damage; that proceedings were made under color of law by virtue of Iowa St. 1927, c. 353, §§ 7421 to 7598, but defendants have failed to comply with requirements of statute, and that defendants' action was without due process of law and in violation of the Const. U.S. Amend. 14, and amounts to denial to plaintiff of equal protection of laws and equal rights; that board of supervisors and county officers were trespassers on plaintiff's premises and acted in violation of Const. U.S. Amend. 14, and were without jurisdiction to take any action in connection with drainage district; that petition for establishment of drainage district contained insufficient description of lands and did not show pretended route of ditch in violation of statute; that engineer's report did not show plat of all ditches, levees, and improvements nor lands affected as required by statute; that appraisers appointed by board of supervisors to determine damages did not consider or report whether they did or did not allow any damages and did not consider question of damage at all as required by statute; that appraisers failed to determine benefits to highways in district; and that board of supervisors and commissioners of district acted in other respects in violation of statutes of Iowa.

In count 2 of the petition, plaintiff alleged that her lands have been greatly damaged and will be greatly damaged by construction of pretended drainage district, and that her lands have not been benefited thereby; that Code of Iowa 1927, § 7474, providing that it shall not be competent to show that any lands in drainage district assessed for benefits will not be benefited by improvement in some degree is void as arbitrarily depriving plaintiff of property without due process of law and denying plaintiff equal protection of law.

In count 3, plaintiff alleged that Mill Owners' Mutual Insurance Company was owner of certain described lands in pretended drainage district; that its attorney was appointed by board of supervisors to advise it and commissioners, and has prepared resolutions and assisted in proceedings; that board knew or ought to have known that attorney was also attorney of owner of lands in district; that attorney with members of board of supervisors undertook fraudulent scheme to pay attorney large sums for alleged services and charge same as special tax against plaintiff's lands, and that law providing fo advertisement before bids were received was not complied with; that entire proceedings were saturated with fraud and were void from beginning. Wherefore plaintiff, being without speedy and adequate remedy at law, sought to enjoin defendants from entering her premises and constructing drainage ditch thereover and from issuing any special assessment certificates against her land and otherwise charging lands with special tax for construction of drainage district. Defendants made motion to dismiss petition for failure to show any ground for jurisdiction of the United States District Court.

I was surprised when counsel presented Home Telephone Telegraph Co. v. City of Los Angeles, 227 U.S. 278, 33 S. Ct. 312, 57 L. Ed. 510. There are many expressions in this long opinion which seem to justify the attitude of counsel for plaintiff. I have studied it carefully, and am now fully convinced that the language of the opinion, which seems to justify this proceeding, is largely dicta. The question before the court was such that, if it were before me, I would hold as the court decided; but, when I read the cases, and eliminate from this opinion, the expressions which were entirely unnecessary to decide the case, I am convinced that I cannot follow the same.

Aside from the decision of this and many other cases, I am convinced that to sustain the jurisdiction of the court in this case would startle the profession. Summing up all decisions, it is apparent that it never was the intention that the Fourteenth Amendment should bring before this court unlawful acts by an individual, or by a state officer, except when such acts have their foundation in some express authority of the state, either by legislation, or possibly by judicial misconstruction.

To sustain the jurisdiction herein would bring into this court so many cases of every kind of officer, where he exceeded his authority — sheriffs, constables, deputies, commissioners, etc. — that the force of federal judges would have to be increased to take care of the business.

Without further reviewing the authorities which are set forth in the briefs of counsel, I hold, that the court has no jurisdiction herein, and that the matter can only come into the courts of the United States after trial and adverse ruling in the highest court of the state.

This disposes of the cause of action in one count of the bill.

So far as the other counts are concerned, I am satisfied that practically every element of the drainage law has been sustained by the Supreme Court of Iowa. Some of these questions have been determined by the federal court. This court is bound by the decision of the Supreme Court of Iowa, construing any act of the Legislature of Iowa.

Therefore I find nothing in the second or third counts which can properly be brought before this court. The clerk will therefore enter the following order:

And now, on this 22d day of November, 1929, the motion to dismiss having been heretofore submitted, and the court being now fully advised, it is ordered and adjudged that, for the reason that this court has no jurisdiction of the causes of action set forth in petition, the motion for dismissal is sustained, and the cause is dismissed without prejudice to any proceeding in the state court. The plaintiff excepts.

Summaries of

Berry v. Ringgold County, Iowa

United States District Court, S.D. Iowa, Creston Division
Nov 22, 1929
43 F.2d 169 (S.D. Iowa 1929)
Case details for

Berry v. Ringgold County, Iowa

Case Details

Full title:BERRY v. RINGGOLD COUNTY, IOWA, et al

Court:United States District Court, S.D. Iowa, Creston Division

Date published: Nov 22, 1929


43 F.2d 169 (S.D. Iowa 1929)

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