Hanley Co. v. Harney Valley Irr. Dist.

180 P. 724 | Or. | 1919

Lead Opinion

BEAN, J.

First considering the question of publication of the notice of the presentation of the petition we note that Section 1 of Chapter 357, Laws of Oregon, 1917, page 744, requires that in making application for the organization of an irrigation district pursuant to the provisions of this chapter,—

‘ ‘ such petition * * shall be published once each week for at least four successive weeks before the time at which the same is to be presented, in some newspaper printed and published in the county where said petition is presented, together with a notice stating the time of the meeting at which the petition will be presented. * * ”

1. Section 833, L. O. L., provides that proof of the publication of a notice required by law, or by an order of court or a judge, to be published in a newspaper, may be made by the affidavit of the printer of the newspaper, or his foreman or principal clerk, annexed to a copy of the notice, specifying the times when and the paper in which the publication was made. A reference tó the affidavit of publication discloses that the same was made by the foreman of the “Harney County Tribune,” the weekly newspaper in which the notice was published.. This is not a compliance with the section of the statute referred to. The identical question here presented was involved in the case of Jeffery v. Smith, 63 Or. 514 (128 Pac. 822), in which this court, Mr. Justice Moore writing the opinion, held that under Section 833, L. 0. L., an affidavit of publication of notice made by the foreman of the “Evening Telegram,” a daily newspaper published in the City of Portland, is insufficient as against proper objection.

2, 3. The further objection to the proof of publication is that the affidavit shows that the notice of petition was published “once a week for a period of four weeks beginning on the eighth day of August, 1917, and ending on the fifth day of September, 1917,” and that with four publications, one made on August 8th and one on September 5th, the publications would not necessarily be made on four successive weeks and that either three of the publications of the paper on the dates between August 8th and September 5th might not have contained the publication of the notice. The affidavit does not show that the publication was made “once each week,” neither does it show that the publications were made for “four successive weeks.” This is a jurisdictional requirement, and in order for the County Court to exercise authority in the matter of the organization of the irrigation district, it is necessary that Section 1, of Chapter 357, G-en. Laws of Oregon, 1917, be complied with in this respect and that proof thereof be made in conformity with the statute and incorporated in the record. The organization of such a district is of vast importance to the people directly interested, as well as to the public, in the promotion of irrigation, and it is essential that in order that the usual transactions of such an irrigation district such as the provisions for paying for a system of irrigation works, as issuing bonds and the like, should be in conformity with the mandate of the statute and not invalid. It is better that there shall be no grave question in regard to the formation of such a district which would tend to lessen the credit of the district.

The holding that the petition was sufficient-is assigned as error. Section 1 of Chapter 357, Laws of 1917, enacts that:

“"Whenever'fifty or a majority of the owners of land irrigated or susceptible of irrigation desire to provide for the construction of works for tlie irrigation of the same, or desire to provide for the reconstruction, betterment, extension, purchase, operation or maintenance of works already constructed, or for the assumption as principal or guarantor of indebtedness on account of district lands to the United States under the Federal reclamation laws, they may propose the organization of an irrigation district under the provisions of this chapter by signing a petition therefor and presenting the same to the County Court of the county in which the land, or the greater portion thereof, is situated; said petition shall set forth and particularly describe the boundaries of the proposed irrigation district and shall state that it is the purpose of the petitioners to organize an irrigation district under the provisions of this Act, and shall pray that the same be organized hereunder. * * ”

4. By reading that portion of the petition set out above it will be seen that it conforms to this requirement of the statute. The petition is sufficient to confer jurisdiction upon the County Court if the same and the notice of the presentation thereof had been shown to have been published as required by law: Herrett v. Warmsprings Irr. Dist., 86 Or. 343 (16 Pac. 609); Links v. Anderson, 86 Or. 508 (168 Pac. 605, 1182).

5, 6. It is the contention of the appellant that the petition should enumerate the qualification of the subscribers. The statute directs that such initiatory petition shall set forth and particularly describe the boundaries of the proposed irrigation district, and shall state that it is the purpose of the petitioners to organize an irrigation district under 'the provisions of this act, and shall pray that the same be organized hereunder. The statute does not require that all of the qualifications of the subscribers should be declared therein. Section 2 of the Act directs that: On the final hearing the court shall make and enter an order determining, inter alia whether the requisite number of owners of the land within such proposed district shall have petitioned for the formation thereof, but all of such facts are not commanded by the law to be contained in the petition. The same technical precision that should be observed in a regular law action is not required in a proceeding for the organization of an irrigation district before the County Court. Section 29 of the Act of 1917 declares the qualification of voters. It directs that:

“The term ‘owner of land,’ or ‘elector,’ as used in this Act, shall include every person, male or female, over the age of twenty-one years, whether a resident of the district or State or not, who is a tona fide owner of one acre or more of -land situated within the district and whose name appears on the last assessment roll, or who is the holder of an uncompleted title or contract to purchase State or Carey Act lands. Entry-men upon public lands of the United States shall be considered as landowners for the purpose of this Act, and shall be qualified petitioners for the organization of an irrigation district, and shall share all the privileges and obligations of landowners within the district, including the right to vote or hold office, subject to the terms of the Act of Congress entitled ‘An Act to promote reclamation of arid lands,’ approved August 11, 1916.

“Any corporation shall be entitled to vote as a single landowner through any officer or agent duly authorized in writing under the seal of the corporation. Any guardian, administrator or executor authorized to act as such of a person or estate owning land within the district shall be considered a landowner for the purposes of this Act, where the owner in fee is not otherwise entitled to vote.”

This section points the way, in part at least, for the determination by the County Court of the qualifications of the petitioners, but the mandate of the legislature does not direct that all of these particulars should be contained in the petition. It might have been convenient for the County Court, if the petition had shown that the subscribers thereto each owned one acre of land within the district, as well as other particulars. We think that the question of the qualifications of the subscribers to the petition in this proceeding", as to the ownership of land, is set at rest by the stipulation of counsel for the interested parties quoted above.

7. However, in view of the future steps which may be taken in this matter, it may be proper to say that it would seem that all the facts found or determined by the County Court should be stated in the order made pursuant to Section 2 of this Chapter, which was amended by Laws of 1919, page 442, so that upon an examination of such proceedings an appellate court may see whether such facts are sufficient, and also so that the order of the County Court may plainly set forth the matter of which it is made evidence by virtue of the statute. For the County Court to order that a petition in such a matter contain the signatures of fifty and a majority of bona fide land owners within the boundaries of the proposed district “having the qualifications as defined in Section 29 of Chapter 357 of the Glen. Laws of Oregon, 1917,” is to say the least a scant compliance with the statute. The record of the County Court should show the time and manner of the publication of the petition and notice.

It is urged by appellant that the court erred in not excluding its lands from the proposed irrigation district; that the law contemplated the inclusion of arid lands only in such districts.' Section 2 of the act provides that:

“When such petition is presented the county court shall hear the same and may adjourn such hearing from time to time, not exceeding four weeks in all, and on the final hearing may make such changes in the proposed boundaries as the court may find proper, and shall establish and define such boundaries,” with certain provisions.

Under this section taken together with Section 37, appellant submits that it was the duty of the County Court upon petition therefor by the Hanley Company to exclude its lands from the irrigation district.

8. Whatever may be the law upon this point, the question of the exclusion of appellant’s lands is not before us in this proceeding in a manner so that the same can be satisfactorily determined. It is true that a detailed and quite comprehensive statement in regard to appellant’s lands and the manner in which they have heretofore been irrigated is contained in the briefs, but we search the record in vain to find any proof in regard to this important question. Before an appellate court can pass upon such a weighty matter, proof of the existing conditions should be made.

9. In proceedings of this kind the issues, if any, are raised in a general way. The petition is somewhat analogous to a complaint in a suit. The objections of the William Hanley Company and the request to exclude its lands from the district are in the nature of an answer to the petition and practically raise an issue. They are in effect in direct conflict with the petition, and in our view should be supported by proof of the actual conditions existing before the court can determine whether or not the lands should be excluded from the district. This is in harmony with Section 37, subdivision d, of the act. The same principle applies to watering dry land as applies to the reclamation of swamp-lands. . Some of the lands which might he beneficially included in an irrigation district might produce a light crop without irrigation, and also such lands might already be provided with facilities for a partial irrigation thereof by means of which they would produce one third or one half as much vegetation as when irrigated from the proposed system. As often stated, the proposed irrigation- system might cause several blades of grass to grow, where none grew before, or the proposéd irrigation district might furnish means for irrigation in addition to the natural irrigation of such lands so that “two blades of grass” would grow “where only one grew before.” "Whether the lands of appellant are so conditioned is a question of fact which should appear in the record: Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112 (41 L. Ed. 369, 390, 17 Sup. Ct. Rep. 56). For the reason first indicated herein, the decree of the lower court is reversed, and the order of the County Court organizing and establishing the Harney Yalley Irrigation District Number 1 as described in the petition is set aside and reversed, and this proceeding remanded to the Circuit Court with directions to remand the same to the County Court for such further proceedings as may be deemed proper not inconsistent with this opinion.

REVERSED With Directions. Rehearing Denied.

Burnett., J., concurs in the result.

On petition for rehearing.

In Banc.

Denied. Messrs. Hawley & Hawlev and Mr. C. B. McConnell, for the petition. Mr. C. B. Leonard, contra.

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Rehearing

Denied July 15, 1919.

PETITION FOR, REHEARING.

(182 Pac. 559.)

BEAN, J.

10. The petition for rehearing suggests, that when this matter was before the County Court the objection was to the publication, and not to the proof of the publication; and that the same question was passed upon by the Circuit Court. Counsel for the irrigation district urge that due notice of the proceedings in this matter was given. It is asserted that the delay caused by setting aside the order of the County Court will work an injustice. We regret that there should be any loss of time in regard to a matter of so much importance. It was with this view that the matter was reversed in order that proper proceedings in the matter could be taken to correct the same, as shown in our former opinion.

The County Court is authorized to grant the petition of an irrigation district upon compliance with Section 1 of Chapter 357, Gen. Laws of Oregon, 1917. The above section requires, among other things, that such petition shall be published once each week for at least four successive weeks before the time at which the same is to be presented, in some newspaper printed and published in the county where said petition is presented, together with a notice stating the time of the meeting at which the petition will be presented.

The only way in which the court can determine whether or not that part of the section has been complied with, and the required notice has been given is by the proof of the publication of such notice. The proof of the publication of the notice of the presentation of the petition in the matter of the organization of this irrigation district is admittedly defective and must be so considered. As the matter seemed to us upon the former consideration, and as we still look upon the same, when it is ascertained that the jurisdictional requirement of the statute has not been complied with, and the County Court was without authority to proceed with the final hearing mentioned in Section 2 of the act, there is no alternative for the court, except to set the order of the County Court aside. We fail to see the availability of the distinction attempted to be made between the “publication of the petition and the notice of hearing thereof, ’ ’ and the proof of such publication as the court can only determine what the publication was by the proof thereof. It was held by this court in Rynearson v. Union County, 54 Or. 181 (102 Pac. 785), that when it appears at any stage of the proceedings, upon the trial of a cause, that an inferior court has acted without jurisdiction, and the proceedings are subject to review, the duty devolves upon the court to set aside the proceedings, upon its own motion, and purge the record of informalities, and refuse to proceed further, though the defect has not been challenged in a formal way.

When we notice the provision in Section 41 of this Chapter for the institution of proceedings in the Circuit Court for the purpose of having a judicial examination and judgment as to the regularity and legality of the proceedings in connection with the organization of a district, and the proceedings of the board and of the district providing for, and authorizing the issue and sale of bonds of the district, it is at once apparent that where there has been a want of legal proof of the notice required by the statute in order to initiate the proceedings for the organization of such a district, that it is the duty of. the court to set aside the attempted proceedings in order that steps be regularly taken for the presentation of such petition. This is for the best interest of all concerned.

Subdivision (b) of Section 41 of the act requires the court upon the hearing of such special proceedings to find and determine whether the notice of the filing of the petition has been duly given and published. It is stated in the brief that the proof of publication in this case was made on the regular printed form in general use by the newspapers in that county. It seems strange that at this late date a form of affidavit of publication should be in use in the office of a newspaper. Twenty-five years ago there might have been some reason for it. It is hoped the form will be changed.

Believing that if the irrigation district should continue its ordinary business, and the proceedings should come up for judicial examination hereafter, that the court would be compelled to hold that they were illegal as heretofore indicated, the petition for rehearing is denied. Under the circumstances of this case as disclosed by our former opinion, after further consideration, each party will be required to pay its own costs.

Reversed With Directions. Rehearing Denied.