168 P. 605 | Or. | 1917
Lead Opinion
delivered the opinion of the court.
The proceeding was carried on under Chapter 223 of the Laws of 1911, as it stood prior to its repeal by
“Whenever fifty, or a majority of the holders of title to lands susceptible of irrigation * * desire to provide for the irrigation of the same, they may propose the organization of an irrigation district”: Chapter 223, Laws 1911, § 1.
Section 2 of that act reads in part:
“For the purpose of organizing an irrigation district as provided by this act, a petition, signed by the required number of holders of title to the lands within the boundaries of such proposed irrigation district, shall be presented to the County Court of the county in which the land, or the greatest portion thereof, is situated.”
A particular description of the boundaries of the district is required, together with a bond to be approved by the County Court in double the amount of the probable cost of organization, conditioned to pay that expense in case organization be not effected. It is required that the petition shall be presented at a regular meeting of the court or at any special meeting called to consider the same and
“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.”
It is further said in this section:
“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. * **514 On the final hearing the court shall make and enter an order determining whether the requisite number of owners of the land within such proposed district shall have petitioned for the formation thereof and whether the petition, and notice of the time of presentation thereof, shall have been duly published as hereinbefore provided, and said order as so made and entered shall be conclusive evidence of the facts found by the court.”
This is the formula for acquiring jurisdiction in the matter and giving authority to the County Court to proceed and hear the petition with a view to ordering an election. We find in the record a document in this tenor:
“Notice is hereby given by the undersigned petitioners, whose names are signed to the following and attached petition, and who are a majority of the holders of title to lands susceptible of irrigation from a common source, which lie within the proposed North Unit Irrigation District as described in said petition hereto attached, that said petition will be presented to the County Court of Jefferson County, Oregon, on the 7th day of February, 1916, at the hour of 10 o’clock in the forenoon of said day or as soon thereafter as said court can attend to the same, at the county courthouse of said county, said date being the time fixed by said court for the presentation and hearing of said petition. This notice is published once each week for the period of four weeks, the publication for the first time being the 6th day of January, 1916. Said petition is as follows:
“In the County Court of the State of Oregon for Jefferson County.
“Petition for Organization of Irrigation District. “To the Honorable, the County Court of Jefferson County, Oregon.
“We, the undersigned petitioners, respectfully show and state to the court: That all of the land included in the hereinafter bounded and described irrigation*515 district, and the proposed district, lies entirely within the county of Jefferson, State of Oregon.
“That we, the undersigned, are owners of land and holders of title to land within the proposed and described district, and that we are a majority of the holders of title and of evidence of title to lands situated within the hereinafter described boundaries, and intended to be included in said proposed district, which lands are susceptible of irrigation within said proposed boundary from a common and combined source and by the same system of works from which the lands will be irrigated in said described district.”
The paper further states the proposed name of the district, the number of directors, and the source of water supply, and attached a list of the names of all owners and holders of title to land within the proposed district whose lands are susceptible of irrigation. It also gives the proposed boundaries of the district according to legal subdivisions and prays that the court take the proper action looking to the establishment thereof. Appended to this as signatures are the names of a large number of persons greatly in excess of fifty. Attached to this instrument is the affidavit of O. C. Toung, as follows:
“State of Oregon,
County of Jefferson, — ss.
“I, 0. C. Toung, being first duly sworn, say that I am the printer and publisher of the Deschutes Valley Tribune, that said Deschutes Valley Tribune is a weekly newspaper published and issued weekly and regularly at Culver, Oregon, in the county of Jefferson and is of general circulation in said county and state. That the notice of which the one hereto attached is a true and correct copy, was published in the regular and entire issue of every number of said paper, once a week for five weeks being published five times, on dates as follows, viz.: January 6th, 13th, 20th, 27th, and February 3d, 1916; that said notice*516 was published in the newspaper proper and not in a supplement; that I have carefully compared the copy of the petition as published with the original petition filed in the county court for Jefferson County, Oregon, and that the copy published in said newspaper is a true and correct copy of said original petition and of the whole thereof.
“(Signed) O. C. Young.”
At this point it is proper to inquire concerning the different kinds of attack that may be made upon proceedings of this nature. We find in Section 3 of Chapter 223, supra, treating of the election in such cases, the following language:
“Such election, on organization, may be contested by any person owning property within the proposed district liable to assessment. The directors elected at such election shall be made parties defendant. Such contest shall be brought in the Circuit Court of the county where the petition for organization is filed. * * The court having jurisdiction shall speedily try such contest, and determine, upon the hearing, whether the election was fairly conducted and in substantial compliance with the requirements of this act, and enter its judgment accordingly.”
‘ ‘ The board of directors, may, within the time hereinafter limited, after the order of the County Court declaring the organization of any irrigation district hereunder, or declaring the result of any election hereunder, or after the order of the board of directors of such irrigation district including or- excluding any lands in or from said district or declaring the result of any election, general or special, herein provided for or after any order of such board of directors levying any assessment, general or special, or ordering the issue of any bond for any purpose hereunder, or after the order determining any bond issued or providing for the same, or after such bond issue, bring a proceeding in the Circuit Court of the county in which the district, or the larger portion thereof,' is situated for the purpose of determining the validity of any of the acts or things in this section above enumerated. ’ ’
Provision is made for acquiring jurisdiction by publication of summons and the like and giving opportunity to be heard to any person interested, together with the right of appeal. Section 34 says:
“If any such proceedings, as enumerated in Section 33 of this act, shall not have been brought by the board of directors within thirty days after the entry of the order or performance of any acts in said Section 33 enumerated, and for which a contest is by said section provided, then any district assessment-payer or other interested person may bring a like proceeding in the Circuit Court of the county where the lands embraced within such district, or the majority thereof, are situated, to determine the validity of any-of the acts, orders, or. things enumerated in said Section 33, and concerning which the right of contest is by said section given.”
Thus it is that there are two methods of attack upon the transactions involved in the organization of an irrigation district: 1. A proceeding by the directors
It. will be observed that in the proceedings mentioned in Sections 33 and 34, the board of directors has the first right within thirty days to bring a suit to contest the validity of the various things mentioned. Under Section 34 the assessment-payer or other interested person has the right to institute the proceedings if the board has not acted. In the present instance there is no statement anywhere that the board has not taken the initiative. It professes to be nothing more than an election contest. Indeed, it says expressly that an election was held for the purpose of voting on the question of organization. The very language of the initial pleading indicates prima facie regularity of the holding of the election. Under Section 3 of Chapter 223, the limit of the authority of the court in such a contest is to determine upon the hearing whether the election was fairly conducted and in substantial compliance with the requirements of the act. We have seen that the County Court acquired jurisdiction to order an election and that it did order the same and gave notice thereof. The plaintiffs have taken upon themselves the burden of contesting the election. It is incumbent upon them, therefore, to show not only that illegal votes were cast but also wherein they would have affected the result adversely to the plaintiffs. They state in effect that many persons were allowed to vote at the election without being legal voters, but they give no intimation about the nature of their disqualification. Neither is it stated whether these illegal votes were cast for or against the scheme
Affirmed. Sustained on Rehearing.
Rehearing
Former opinion sustained December 11, 1917.
Petition for Rehearing.
(168 Pac. 1182.)
On petition for rehearing. Former opinion sustained.
Mr. Claude McColloch and Mr. W. P. Myers, for the petition.
Mr. William E. Wilson, Mr. Lewis E. Irving, and Mr. Jos. T. Einhle, contra.
delivered the opinion of the court.
The petition for rehearing in this cause urges upon ns that the notice of election was too vague and indefinite to authorize one to be held. The particular point relied upon is that in describing the perimeter of the proposed irrigation district there is a difference between the language of the order for the election and of the notice thereof. So far as material on that subject the following extracts from the two documents are sufficient for present purposes. After stating the beginning point and giving various courses and distances the order proceeds thus:
“Thence northerly to the northwest comer of the northeast quarter of said section 31; thence easterly to the southwest corner of the southeast quarter of section 29, said township and range; thence northerly to the northwest corner of the southwest quarter of the southeast quarter of said section 29; thence easterly to the southwest corner, of the northwest quarter of the southwest quarter of section 26 in said township and range.”
In describing that part of the boundary the notice says:
“Thence northerly to the northwest corner of the northeast quarter of said section 31; thence easterly to the southwest corner of the southeast quarter of section 29, said township and range; thence northerly to the northeast comer of the southwest quarter of the southeast quarter of said section 29; thence easterly to the southwest corner of the northwest quarter of the southwest quarter of section 26 in said township and range. ’ ’
“It does not necessarily follow, however, that, if perchance, a lot not so abutting should by mistake or otherwise be included in one assessment, the levy would be void as to the contiguous property; in other words the party whose realty is not benefited should complain, if any one, and not those who are unin-. jured.”
Remembering, as we must, that this is a contest of an election, and recalling the rule laid down in the statutes under which the proceeding was carried on to the effect that the courts “must disregard any error, ir
As against the objections presented and as against the parties urging them there was no material error in the proceedings. We adhere to the former opinion.
Former Opinion Sustained.