OF COURT-UNAMBIGUOUS STATUTE. car or cars; otherwise the company shall not | 3. STATUTES 176 - CONSTRUCTION - DUTY be excused for not furnishing cars on account of failure to make tender on the part of any shipper: * Provided, that if any applicant shall elect to order cars without a deposit, as provided in this section, neither party shall be liable for the penalties prescribed in this and the preceding section." The Legislature having the unquestioned power and right to determine procedure by which courts may acquire jurisdiction of parties, it is the duty of the Supreme Court to give effect to the plain meaning of the language used in Comp. Laws 1907, § 2946. The defendant did not request that a Application by E. William Reese for a deposit be made. The plaintiff made no de- writ of prohibition against the Judges of the posit, although it tendered money a few District Court of Salt Lake County, prohibittimes. Did the plaintiff elect to order cars ing that court from proceeding further in an without making a deposit? The answer to action therein pending, wherein W. E. Madthat question is not one of law, but one of dison and others are plaintiffs and the apfact, and must be made by triers of fact.plicant and another are defendants. PerAgain, the error is of no avail to the defend-emptory writ granted. ant, because it did not request any instruction covering the proposition. G. M. Sullivan, of Salt Lake City, for plaintiff. J. J. Whitaker, of Salt Lake City, for defendants. [5] 5. All the shipments involved were made with a milling in transit privilege. This privilege is one by which a shipper GIDEON, J. F. William Reese, plaintiff from the milling in transit point gets an here, makes application to this court for a advantage in freight rates. The evidence writ of prohibition against the judges of the tended to show that the plaintiff's shipments district court of Salt Lake county, prohibitwere made to a milling point; that the ing that court from proceeding further in an plaintiff's connection with the shipments action therein pending wherein W. E. Maddiceased at that point; that the privilege was son et al. are plaintiffs and the said Reese given to the customer, or the shipper from and one other are defendants. The facts out the milling point, and not to the plaintiff; of which this proceeding grew are as folthat it received no direct benefit from that lows: privilege; and that the plaintiff did not On the 2d day of July, 1918, complaint was know where any of the shipments finally filed in the district court by the plaintiffs, went. A shipment from a point in Kansas to Maddison et al., against Reese et al., but no a milling point in Kansas, where the consummons or proof of service of summons was nection of the shipper with the shipment filed with the clerk at that time or prior thereabsolutely ceases, is not any part of inter- to. It appears from the application for the state commerce, although the consignee may writ, and the facts stated therein are admittake advantage of the milling in transit ted, that on the 22d day of June, 1918, sum privilege. Larabee v. Railway Co., 74 Kan. 808, 88 Pac. 72; Coe v. Errol, 116 U. S. 517, 6 Sup. Ct. 475, 29 L. Ed. 715; Gulf, Colorado & Santa Fé Ry. Co. v. Texas, 204 U. S. 403, 27 Sup. Ct. 360, 51 L. Ed. 540; Chi., Mil. & St. P. Ry. v. Iowa, 233 U. S. 334, 34 Sup. Ct. 592, 58 L. Ed. 988; Kempner v. M., K. & T. Ry. Co., 37 Interst. Com. Com'n R. 396; Illinois Grain to Chicago, 40 Interst. Com. mons was served in said action upon the plaintiff, Reese, in Salt Lake county, Utah, by a private citizen, Thomas F. Fowler; but no return was made thereon, and neither the summons nor the return was filed with the clerk of the court within 10 days thereafter, and the same was not filed on the 2d day of July, the date of filing of the complaint. Thereafter, on the 12th day of July, 1918, the plaintiff here, by counsel, made a special appearance in the action, objected to the jurisdiction of the court, and moved that the court dismiss the action, on the ground that it was without jurisdiction over the said plaintiff. On the day following (the 13th of July) REESE v. JUDGES OF DISTRICT COURT the plaintiff, Maddison, filed with the clerk OF SALT LAKE COUNTY. (No. 3260.) of the court and served notice upon the attorney for Reese of his intention to ask the (Supreme Court of Utah. Sept. 20, 1918.) 1. PROCESS 127-PROOF OF SERVICE-NE-court for an order permitting him to file the CESSITY. Where action was begun by service of summons, as provided by Comp. Laws 1907, § 2938, on June 22d, and complaint was filed in district court July 2d, but no proof of service of summons was filed at that time or prior thereto, the court acquired no jurisdiction, in view of section 2946. 2. STATUTES 190-CONSTRUCTION-INTENT. Language of Comp. Laws 1907, § 2946, being unambiguous, it is not necessary to resort to anything but the ordinary rules of construction to determine intent of law-making body. summons and return, and supported the same with an affidavit. That motion came on for hearing on the 8th day of August, 1918, and the plaintiff was permitted to file summons and proof of service of summons, and the court denied said motion to dismiss the action, and in effect held that that court had jurisdiction and would proceed to determine the issues in the case. Thereupon plaintiff applied to this court for a writ of prohibi tion. [1] A determination of the question pre-clerk of the court, at the time of filing the sented on this application requires the con- complaint, the summons, and the proof of struction of section 2946, Comp. Laws Utah service, did not deprive the court of juris1907. That section, so far as material here, diction of the parties, and the plaintiff should is as follows: be permitted to file such copies upon reasonable showing made to the court within rea "Within ten days after service of the summons, the complaint, if not previously filed, to-sonable time. The section in question does gether with the summons and proof of service thereof, must be filed in the office of the clerk of the court in which the action is brought. At the same time, one copy of the complaint shall be deposited with the clerk for the defendants in each county in which the summons shall have been served, unless a copy thereof was served with the summons in each of such counties. * * not undertake, as I construe it, to make the deposit of a copy of the complaint a prerequisite to giving the court jurisdiction; but it clearly does make the filing of the complaint with the summons and proof of service thereof, within the time specified, necessary in order to give the court jurisdiction. The filing of the complaint, sumThere are two methods provided by sec-mons, and proof of service is for the benefit tion 2938 of the Code of Civil Procedure for of the court; that is, to advise it of the claim beginning actions in this jurisdiction: (1) or contention of the plaintiff, also as to By filing the complaint with the clerk of the whether the proper notice has been served court in which the action is brought; and upon the defendant to bring the defendant (2) by the service of summons. The service into court. But the filing of the copy of the of summons on the plaintiff on the 22d day complaint is not for the court's information of June was the beginning of an action, and or benefit, but for the information and beneif the provisions of section 2916 have been fit of the defendant. complied with the court acquired jurisdiction of the defendants in that action. It will be observed by a reading of that section that to give the court jurisdiction of the parties the plaintiff must, within 10 days after the service of summons, file the complaint, if not previously filed, together with the summons It is therefore ordered that the perempand proof of service thereof, with the clerk tory writ prayed for herein issue. Costs of the court in which the action is brought.of the proceeding to be taxed against plainThe Legislature seems to have required the tiff. filing of the complaint and the summons and proof of service thereof as a prerequisite to giving the court jurisdiction of the parties. The decision in the case above cited is not controlling, nor in conflict with the conclusions here reached. Under the plain requirements of the statute, there seems to be no escape from the conclusion that the plaintiff herein is entitled to the relief sought. FRICK, C. J., and MCCARTY, CORFMAN, and THURMAN, JJ., concur. (52 Utah, 524) STEVENS et al. v. MELVILLE et al. (No. 3262.) (Supreme Court of Utah. Sept. 26, 1918.) 1. WATERS AND WATER COURSES 226· IRRIGATION DISTRICTS LAND INCLUDED. ORGANIZATION [2, 3] The language of section 2946 is unambiguous, and it is not necessary to resort to anything but the ordinary rules of construction to determine just what was the intent of the law-making body. That body having the unquestioned power and right to determine the procedure by which courts could acquire jurisdiction of the parties, it is the duty of this court to give effect to the plain The organization of an irrigation district, meaning of the language used by the Legis-under Irrigation Act, was not invalid because lature. The sentences requiring the filing of the complaint, summons and proof of service are conjunctive, and if the court could acquire jurisdiction by failure to file the summons and proof of service, it could likewise acquire jurisdiction upon the failure to file the complaint within the time specified, and could, upon proper showing, permit it to be filed at any reasonable time. No one would contend that the section is susceptible of that construction. The defendants contend that the above construction is in conflict with a former ruling of this court in Lime & Stone Co. v. Danley et al., 38 Utah, 218, 111 Pac. 647. An examination of that case, however, will readily show that the question decided there is not involved here. In that case it was held that the failure of the plaintiff to file copies of the complaint for the defendant with the land purchased from the state of Utah on contract without payment of purchase price in full was included in such district, section 1 providing that purchasers of state lands within the proposed district shall be deemed to be of becoming petitioners for the organization owners of land within the district for purpose thereof. 226-IB 2, WATERS AND WATER COURSES 231—IB. Irrigation Act, § 11, giving the board all powers necessary fully to carry out the purposes of the act, confers power to determine and assess benefits. 4. WATERS AND WATER COURSES RIGATION DISTRICTS-BENEFITS TION. 231-IR- Pac. 379; Board of Directors v. Tregea, 88 PRESUMP- Cal. 334, 26 Pac. 237; Oregon S. L. R. Co. v. Where it is found that all lands within the Pioneer Irr. Dist., 16 Idaho, 578, 102 Pac. 904; district can be irrigated and made productive Knowles v. New Sweden Irr. Dist., 16 Idaho, by the application of water which will be ob- 217, 101 Pac. 81. The Wright Act was also tained from the proceeds of irrigation bonds, it specially referred to and considered by this will be assumed that all lands lying within the court in State ex rel. Lundberg v. Irrigation district are similarily situated and will be benefited at least to the extent of the assessment.1 Dist., 40 Utah, 83, 119 Pac. 1039. 5. WATERS AND WATER COURSES 231-IRRIGATION STATUTORY PROVISIONS. The Irrigation Act is not invalidated by its . provision authorizing the levying of assessments to provide funds to meet anticipated defaults by landowners within the district. Appeal from District Court, Millard County; D. H. Morris, Judge. Action by Daniel Stevens and others against J. A. Melville, Jr., and another. Judgment for plaintiffs, and defendants appeal. Affirmed. Jas. A. Melville, of Salt Lake City, for appellants. T. M. Ivory, of Fillmore, for respondents. FRICK, C. J. This is an appeal from a judgment or decree of the district court of Millard county, Utah. The proceeding was commenced in said court pursuant to chapter 33, Laws Utah 1917 hereinafter referred to as the Irrigation Act, to determine the regularity and validity of the organization of a certain irrigation district known as the Pahvant irrigation district, which was organized pursuant to the provisions of said Irrigation Act in the county aforesaid, and to determine the validity of the proceedings leading up to and including the issuance of the bonds of said irrigation district as provided in said Irrigation Act. The Irrigation Act is very comprehensive and is too long to be inserted here even in substance. It is in part an amendment and in part a reenactment of chapter 74, Laws Utah 1909, and chapter 101, Laws Utah 1913, with certain additions. It must suffice to say that said chapters and the present Irrigation Act, to a large extent at least, are framed after what is known as the Wright Act, which was adopted in the state of California in 1887, and which, since its adoption, with unimportant changes and additions, has been followed by many of the western states, Utah among the rest. The Irrigation Act in question was passed for the purpose of authorizing the organization of irrigation districts with a view of improving and making productive by means of irrigation large areas of arid lands which cannot be irrigated, improved, and made productive by individual effort. The Wright Act has repeatedly been before and has been passed on and upheld by the courts of the several states in which it was adopted, as well as by the Supreme Court of the United States. In the following cases, among others, said act has been considered and upheld: Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112, 17 Sup. Ct. 56, 41 L. Ed. 369; Irrigation Dist. v. Williams, 76 Cal. 360, 18 The complaint in this proceeding filed in the district court is quite voluminous and sets forth in detail all of the steps that were taken in organizing the irrigation district, including the holding of the several elections provided for by the Irrigation Act, including the election held to vote bonds of said district and which are more particularly in question here. The proceeding and the comvisions of sections 50, 51, 52, 53, and 54 of the plaint are predicated on and follow the proIrrigation Act. The plaintiffs, hereinafter called respondents, constitute the board of directors of said irrigation district, and the defendants, hereinafter called appellants, are landowners in said district as hereinafter more fully explained. A general demurrer was interposed to the complaint, and an answer thereto was likewise filed, by the appellants. The demurrer was overruled and performs no further function in this proceeding. The answer in part admits, and in certain parts denies, the allegations of the complaint. A stipulation of facts was, however, entered into and filed in the action. The district court made findings of fact based upon the admissions contained in the answer, documentary evidence produced and referred to in the stipulation of facts, and on the facts stipulated. The court also made conclusions of law and entered a decree validating and affirming all of the proceedings of the irrigation district, including the issuance of bonds, from which judgment or decree this appeal is prosecuted. The findings are very complete and cover practically every provision contained in the Irrigation Act which apply to an irrigation district like the one involved in this proceeding. The findings of the court and the judgment or decree are assailed in certain particulars. Such matters involved on this appeal as are deemed material will be referred to in their order. [1] In the first assignment it is urged that the irrigation district in question was not legally organized because lands are included therein which belong to the state of Utah. The facts found by the court (which are not in dispute) are that certain persons purchased lands from the state of Utah, which lands had not yet been fully paid for and which are within and form a part of said irrigation district. Section 1 of the Irrigation Act pro vides: Purchasers of state lands within the proposed district shall be deemed to be the owners of lands within the district for the purpose of becoming petitioners for the organization of such irrigation district, and shall For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes share all the privileges and obligations of pri- cluding those lands the district court merely vate landowners within the district." The record shows that the statute was followed in all essential particulars, and that the state lands, purchased as aforesaid, were properly included within and are now legally a part of said district. If it should be held that lands purchased from the state on executory contracts which are not yet fully paid for by the purchasers, and the title to which is still held by the state under the Enabling Act of Congress, cannot legally be included within an irrigation district formed in pursuance of the Irrigation Act, then most of the lands purchased from the state under such contracts would perhaps always have to remain arid and unimproved. One of the purposes of the Irrigation Act is to make it possible for purchasers of state lands and entrymen on the public domain to improve their lands and entries and by means of irrigation make them productive and increase their value, and thus promote their own, as well as the public, welfare. The California law in this respect is practically the same as the Irrigation Act, yet the Supreme Court of California, in Board of Directors v. Tregea, supra, held that lands under similar conditions were properly included within the irrigation district. This objection must be overruled. did what should have been done before when the boundaries of the district were determined. The retaining of such lands within the boundaries of the district until they were excluded, therefore, by the district court at most constituted a mere irregularity which did not, and could not, affect any substantial right of any one. This objection must therefore also fail. [3] It is next contended: (1) That the Irrigation Act does not confer power on any. one to determine and assess the benefits to the lands of the several landowners within the irrigation district that would accrue to such lands by reason of the purchase of water to be used to irrigate said lands; and (2) that, althougu it be held that such power is conferred, yet such power was not properly exercised, and the assessment and apportionment of benefits were not properly made. In our judgment there is no merit to the first ground indicated. If it were conceded, however, that the act is somewhat vague with respect to the method of determining the benefits, yet the power to ascertain and apportion the benefits is ample. The act, in section 11, provides: "The board shall generally perform all such acts and have all such powers as shall be necessary fully to carry out the purposes of this act." [2] It is next contended that the organizaUnder this power the board could do anytion of the district is invalid for the reason that certain public lands of the United States thing which was necessary to effectuate the were originally included within the bounda- letter, the spirit, and the purposes of the ries of There is therefore no lack of power, act. the district and were subsequently excluded by the district court with- and from an examination of the record it out power to do so. It is true that, when the is made apparent that the board met with boundaries of the district were originally no difficulty in ascertaining and apportioning established, certain public lands of the the benefits accruing to the lands within the United States were included within such district nor in assessing those lands as conboundaries. It was, however, not attempted templated by the act. to include those lands as lands having been [4] The next ground of objection is likeentered by any one, or part of the district, wise untenable. It was clearly and specificas might have been done under the Irriga- ally found and determined that the benefits tion Act. Indeed, it is very clear from the that would accrue to the lands included withproceedings that it was not intended or at- in the district by the purchase of water and tempted to make any public lands a part of water rights to irrigate those lands (and the irrigation district. Those public lands, for the payment of which bonds were to be therefore, while within the boundaries of the issued) were at least twice as much as the district, were nevertheless treated and con- amount of the bonds that were voted and sidered as not being a part of it for any were authorized to be issued. It is also spepurpose whatever. That fact was clearly cifically found and determined that the made to appear to the district court, and, lands included within the district could all upon application being made to exclude those be irrigated from the proposed water supply lands from the district, and no objection be- and made productive by the application of ing offered against doing so, the district the water which is sought to be purchased court ordered them excluded, and they were and paid for by the proceeds to be derived accordingly excluded from the district and from the bonds. Under such findings, inare not included within its boundaries. No cluding all details, notice was duly given be owner of lands within the district was, or fore the election for the bonds was held, and could be, prejudiced in any way by the exclu- therefore all the facts were 'necessarily sion of those lands from the district. In known to all of the interested parties at the view that those lands had not been entered, time the bonds were voted for. No one made it is not easy to perceive how any one could any objection to the findings respecting the have been prejudiced even though the lands benefits, and no one is now objecting; nor had been retained within the district, as has any one ever objected that the benefits appears was the case in some of the cases to or apportionments as made are unfair or erly included within the irrigation district. If they are properly included, they are also properly assessable, to the extent at least of the interest of the purchaser. In this arid region it is a matter of common knowledge that lands have but a nominal value until they are made productive by irrigation. The substantial value, therefore, that any land may have within an irrigation district, is added entirely by the means of irrigation. In this case all that was done was to reach the value of the lands or the interest possessed by the purchaser. ones we have before stated, and those are of the Irrigation Act such lands are proponly general and assail the validity of the proceedings for the reasons stated. In our judgment, under all the authorities, the benefits to the lands within the irrigation district have been properly ascertained, assessed, and apportioned. Moreover, in view of the finding that all of the lands within the district can be irrigated and made productive by the application of water which will be obtained from the proceeds of the bonds, we, as was said in State ex rel. Lundberg v. Irrigation Dist., 40 Utah, 83, 119 Pac. 1039, must assume "that all of the lands lying within the district are similarly situated," and hence will be benefited to the extent at least that they will be burdened by the assessments for the water to be used thereon. Indeed, it is quite inconceivable how any lands that can be irrigated and thus made productive in this arid region would not be benefited to the extent at least of the cost of the water to irrigate them under a system like the one described in this record. While it is quite true that in exceptional cases the cost of water may be far in excess of the benefits that a particular parcel of land may receive, yet that is not generally so, nor is it so where, as here, a very large area can be irrigated from a particular source of water supply, nor where, as here, the water can be obtained at reasonable cost. The second ground of objection, therefore, cannot prevail. Practically all of the questions that are raised on this appeal have been held to be untenable in the cases to which we have referred at the beginning of this opinion and to which further reference is not deemed necessary. That the objections urged on this appeal are without merit is, to our minds, clear. In this case every jurisdictional requirement of the Irrigation Act was⚫ carefully followed. True, as is generally the case, there are a few slight irregularities in the proceedings. These irregularities the act, in express terms, requires us to disregard, however. There is, however, one potential and allpervading fact in this case, which is that, after all of the irregularities had taken place except the one of excluding the public lands to which reference has been made, the owners of the lands lying within the dis[5] It is also insisted that the Irrigation trict, with full knowledge of the proceedAct is invalid because it authorizes the levy-ings, unanimously, and without a dissenting ing of assessments to provide funds to meet vote, voted that the bonds should issue. anticipated defaults by landowners within The landowners thus, with full knowledge the district. To meet such contingencies the of what had been done, as well as with Irrigation Act authorizes a levy of 15 per knowledge of the manner in which it was cent. in excess of the actual estimated re- done, with one voice directed the officers of quirements. The reasons upon which such the district to issue the bonds and to make and similar provisions in irrigation acts are them a first lien upon the lands within the held proper and valid are well and clearly district. If, under the facts and circumstated in the case of Norris v. Montezuma stances thus disclosed, bonds could still be Valley Irr. Dist. (C. C. A.) 248 Fed. 369. held invalid, it would be next to impossible We need not pause now to enlarge on those to so conduct proceedings under any irrigareasons. Similar provisions are found in tion act as would make them a valid and the statutes of California, Nebraska, Oregon, binding obligation against the district. Washington, and Colorado and have been held proper and valid. Such provisions, at most, are intended only to meet immediate necessities. Ultimately a part or all of the land which is in default of payment will be sold to meet the deficiencies. This objection cannot be sustained. In concluding this opinion, we desire to express our appreciation to counsel for both sides for the careful manner in which the record and the briefs of counsel were prepared. The briefs of counsel evidence careful and painstaking research, and the arguments as well as the authorities cited were of great assistance to us in determining the questions presented by the appeal. From what has been said, it follows that the findings of fact, conclusions of law, and decree of the district court should be, and they accordingly are, in all respects, affirmed, at the cost of the appellants. It is further insisted that the lands held by the appellant Sevier River Land & Water Company were improperly included within the district, and that for that reason the organization of the district is invalid. This objection, it seems, is urged only by appellant Melville. The lands in question are held by appellant company under contracts of purchase from the state of Utah. We have MCCARTY, CORFMAN, THURMAN, and |