The opinion
Battle, J., (dissenting.) I do not concur in the judgment or opinion of the court.
“It is essential,” says Mr. Freeman, “that the jurisdiction of the court over a subject-matter be called into action by some party and in some mode recognized by law. A court does not have power to render judgment in favor of one as plaintiff if he has never commenced any action or proceeding calling for its action, nor has it, as a general rule, power to give judgment respecting a matter not submitted to it for decision, and over which it has jurisdiction. A petition or complaint must be filed in the court whose action is sought, or otherwise presented for its consideration in some mode sanctioned by law.” 1 Freeman, Judgments, § 120.
Many illustrations might be given of the rule .stated. ’ A few will suffice. “The circuit courts of this state have jurisdiction to enforce the collection of debts according to an established procedure A holds the bond of B for one thousand dollars, due and unpaid. He goes into a circuit court with the bond in his hand, and, without writ issued or any pleadings, asks the court to award a rule against B .to show cause why-judgment should not be rendered against him for the debt and interest. The rule is accordingly awarded, executed, and returned, and judgment thereupon rendered for the debt, interest and costs. Such a judgment would be void, notwithstanding the court has jurisdiction of the subject and of the parties. Why void? Because, in the language of Mr. Justice Field, ‘the court is not authorized to exert its power in that way.’ ” The same would be true if A should sue B on one bond, and in the same action decline to take judgment on the bond sued on, and take judgment on another bond of B, on which no suit had been instituted, without the consent of B. Anthony v. Casey, 5 Am. State Rep. 279; Seamster v. Blackstock, 83 Va. 232 .
In Munday v. Vail, 34 N. J. L. 422, Chief Justice Beasley said: “It is impossible to concede that because A and B are parties to a suit, that a court can decide any matter in which they are interested, whether such matters be involved in the pending litigation or not. Persons by becoming suitors do not place themselves for all purposes under the control of the court, and it is only over these particular interests which they choose to draw in question that a power of judicial decision arises. If, in an ordinary foreclosure case, a man and wife being parties, the court of chancery should decree a divorce between them, it would require no argument to convince every one that such decree, so far as it attempted to affect the matrimonial relation, was void; and yet the only infirmity in such a decree would be found, upon analysis, to arise from the circumstances that the point decided was not within the substance of the pending litigation. In such a case the court would have acted within the field of its authority, and the proper parties would have been present; the single but fatal flaw having been the absence from the record of any issue on the point determined. The invalidity of such a decree does not proceed from any mere arbitrary rule, but it rests entirely on the ground of common justice.”
According to the doctrine laid down, parties cannot sue for one ditch and recover another; cannot petition to the county court for one ditch and cause another and different ditch to be made, as in this case. An order directing the latter to be made would be a nullity. In laying out a diteb under the laws of Wiconsin the court held in Donnelly v. Decker, 58 Wis. 461 , that the supervisors “had the right to make any suitable variation from the line” fixed in the petition for the ditch “in their discretion, so that they did not so far depart from the line in the petition as tobe materially another and different line.” According to this decision, the identity of the ditch established as the ditch proposed in the petition must be substantially maintained.
The statutes of this state which empower the county court to establish ditches for the drainage of lands expressly provide as follows: ‘‘That, before the county court shall establish any ditch or drain, there shall be filed with the county court of such county a petition signed by one or more of the land-owners whose land will be liable to be affected by or assessed for the construction of the same, setting forth the necessity thereof, with a general description of the proposed starting point, route and terminus.” The filing of this petition is made a jurisdictional prerequisite to the power to establish ditches for drainage. Two jurisdictional facts must be set forth in it: (1) The necessity of the ditch, and (2) a general description of the proposed starting point, route and terminus. Now, if the county court can establish a ditch without regard to the route described in the petition, why should the petition contain any description of the starting point, route and terminus? Why not ask the county court for an order establishing a ditch to drain certain lands, without any description of the ditch? If the county court is not to observe the line described in the petition, that part of the statute which makes it necessary to file a petition containing the description before it can establish the ditch is entirely meaningless and unnecessary.
The whole act upon this subject makes it appear that the legislature never intended that the county court should, when a petition has been filed, establish another ditch materially different from that asked for in the petition. The act provides that the petitioners “shall give bond, with good and sufficient sureties, payable to the state of Arkansas, to be approved by the county clerk, conditioned to pay all expenses in case the county court shall fail to establish said proposed ditch or drain." What ditch or drain is referred to? Manifestly, the ditch described in, the petition. No other was proposed at the time of the filing of the bond, it being required to be filed with the petition. And why should he give bond to pay all expenses in case the county court shall fail to establish the proposed ditch, and say nothing as to what he shall do in case another shall be estab - lished in lieu of the one proposed? Because no other was to be considered or established.
After the filing of the petition and bond, the act provides that the county court shall appoint three-viewers “to meet at a time and place specified by said court,” “and it shall be the duty of the clerk thereupon to issue said viewers a certified copy of the petition and order of the court, who shall proceed at the time set in said order, with a competent surveyor, and shall make an accurate survey of the line of said ditch or drain [not a ditch] from its source to its outlet.” The clerk is required to furnish them with a copy of the petition, to inform them what line they shall survey and examine. They are not authorized to survey any line materially different from that described in the petition.
Section four of the act provides: “In locating a ditch or drain, the viewers may vary from the line described in the petition as they deem best; provided, they commence the ditch at a point described in the petition, and follow the line therein, as near as practicable; and, provided further, that when there is not sufficient fall in the length of the route described .in the petition to drain the lands adjacent thereto, they may extend the ditch below the outlet named in the petition far enough to obtain a sufficient fall and outlet." They may vary, but not establish another distinct and independent line. They may vary, but must, nevertheless, commence the ditch at the point described in the petition, and follow the line therein as near as practicable. They may change the terminus described in the petition to a point far enough below to obtain a sufficient fall and outlet, but in no other manner and for no other purpose. It is true that this section provides that “when it will not be detrimental to the usefulness of the whole work, they shall, so far as practicable, locate the ditch on the division lines between lands owned by different persons, and they shall, so far as practicable, avoid laying the same diagonally across the lands; but they must not sacrifice the general utility of the ditch to avoid diagonal lines.” But this does not mean that they can disregard the route described in the petition, and establish one entirely different on divisional lines between owners of land. They should obey the mandatory, provisions of the statute. They must locate the ditch between the points designated in the petition, provided they may change the terminus in the manner stated. While locating it between these points, they may follow divisional lines, when it can be done without impairing the usefulness of the whole work. This clearly indicates what divisional lines they may make a part of the route of the ditch, and that they are those which lie in or near the route designated in the petition. The identity of the ditch proposed and established should be substantially preserved.
The viewers are not authorized to recommend to the county court the construction of a ditch other than that decribed in the petition. The statutes say: “If the viewers find the proposed ditch or drain [the ditch described in the petition] not of public benefit or utility, they may report against the location of the same, in which case their report need only state they find the proposed ditch or drain [not a ditch] not to be of public benefit or utility;” and “it shall be the duty of the clerk, on said report being filed, if it be in favor of the proposed work” (the ditch described in the petition), to cause a notice to be given “of the pendency of said petition and the time set for the hearing thereof;” and “said county court, at the time set for the hearing of said petition, shall, if there is no remonstrance filed, proceed to hear said petition, and if he finds that the viewer’s report is made in accordance with the provision of this act, and be in favor of the proposed work [not a ditch, but the ditch described in the petition], and he finds the proposed drain to be of public utility, or conducive to public health, or of public benefit or convenience, he shall establish the same, as specified in the report. But if the viewers report against the proposed work [not a ditch, but the ditch described in the petition], “the court shall dismiss the petition, and tax the costs as hereinafter provided.”
It may be said that the act authorizing the construction of ditches provides that it “shall be liberally construed, to promote the drainage and reclamation of wet or overflowed land.” Bnt this does not authorize courts to so construe it as to set aside and annul its plain provisions. And it may be said that the act further provides that “amounts due to contractors holding the viewers’ certificate of acceptance shall not be defeated by reason of any defect in the proceedings occurring prior to the order of the county court establishing the ditch; bnt such order or judgment of said court shall be conclusive that all prior proceedings were regular and according to law.” But, as I have already shown, the ditch referred to is the ditch described in the petition, and the order or judgment and proceedings are those made or rendered and had in the establishing of such ditch. The county court is not empowered by the act to make or render or authorize any other. It would be doing violence to the plain language of the act to place any other construction upon it.
My conclusion is that a county court in establishing a ditch has no authority to so far depart from the route described in the petition as to locate it on materially another and different line,— that is to say, the ditch as located, commencing and ending as before stated must substantially come within the general description of the route required by the act to be set forth in the petition. The act says, “if the viewers report against the proposed work, the court shall dismiss the petition.”
In the case under consideration, the ditch described in the petition and the one established by the county court are entirely different. So much of the petition as pertains to the description of the ditch is as follows: “On section 30-4-14 there are three several lakes and ponds which are susceptible of being drained into the Arkansas river by a ditch running from about west to east, and through lands belonging to estate of John W. McGuTloagh and B. L. Hartón, Esq., emptying into the river on the land of George Honoghey.” The description is very vague, and is by no means a compliance with the statute. In the form it is, the county court should never have acted upon the petition. An inspection of a diagram of the lakes, river, and lands adjacent will show that the lakes could not be drained by a ditch of the description set out in the petition, without one or more lateral drains to convey the water into the main ditch. The diagram set out in the opinion of the court shows the ditch proposed, as near as I can imagine, and the one established. From it it will be seen that the common object of the two was the drainage of the same lakes into the Arkansas river, and that both are, perhaps, in the same vicinity. Both may be straight. This is the only resemblance, so far as is shown. The identity, substantially or otherwise, I am utterly unable to see.
As to the constitutionality of the act, I concur with the court, so far as it is involved in this action.
I think the decree of the chancery court should be affirmed.