133 P. 836 | Or. | 1913
Lead Opinion
delivered the opinion of the court.
Descriptively the project having our attention is situated in Crook County, Central Oregon, on the west side of the Deschutes River, embracing an area about 15 miles long and from six to eight miles wide. Two lines of railroad parallel the district, thus affording transportation facilities, while a number of small towns near by furnish abundant opportunities for marketing. The chief source of water supply for the project is Tumalo Creek, which is one of the tributaries of the Deschutes River, having its source high in the Cascade Mountains to the west.
Counsel in his brief does not specify any particular subdivision of Section 23 of the organic law inimical of the legislative act, but in his oral argument par
From a recital of the main features of the law pertaining to the nature of the undertaking, we are of the opinion the enterprise contemplated a sovereign work which is in no wise antagonistic to the wholesome mandates contained in Section 7 of Article XI of the Constitution.
As a matter of history calculated to shed a light along the way, we deem it proper to animadvert that the Carey Act adopted by the Congress of the United States' provides that the federal government shall grant to each state such desert land as lies within its boundaries, not exceeding 1,000,000 acres, upon the condition that the state will cause the lands to be reclaimed by the construction of irrigation systems. At the biennial legislative sessions of this state held in 1901 (Laws 1901, p. 378) and in 1905 (Laws 1905, p. 401), the people of the state, through their chosen representatives, committed this commonwealth to the policy of reclaiming its arid lands, while the statute under consideration attempts to apply that policy to a specific locality under a plan conceived by the legislature to be both adaptable and practicable.
An examination of the provision of the act reveals that: “Any person who holds a contract with the Columbia Southern Irrigating Company, or its successors in interest, for any tract in the project, may execute a new contract with the state, for the reclamation, under the provisions of this act, of the land described in his original contract with said company, receiving credit thereon for all money paid to said
The facts stipulated by counsel show that about 2,300 acres lying within the project have been deeded to private parties. Yet the statute provides the desert land board shall make necessary contracts for the sale and delivery of the water to lands of said private parties. While the persons holding prior contractual rights have a call upon the state for the allowance of credits upon all money paid to the defaulting companies under the original contract, yet they «must enter into a new contract with the state and otherwise conform to the rules prescribed by the desert lánd board. Thus it will be seen all persons who have prior contracts are treated alike and that as a class no special privileges are granted to one and withheld from another, but that all coming within the prescribed class enjoy the same privileges and immunities: In re Fred Oberg, 21 Or. 406 (28 Pac. 130, 14 L. R. A. 577); State v. Thompson, 47 Or. 492 (84 Pac. 476, 4 L. R. A. (N. S.) 480, 8 Ann. Cas. 646).
Again, we must not be unmindful of the public official acts of a co-ordinate department of the state government which disclose that the state acquired by deed from the successor in interest of the Columbia Southern Irrigating Company all its rights and inter
In Fallbrook Irr. List. v. Bradly, 164 U. S. 112 (41 L. Ed. 369, 17 Sup. Ct. Rep. 56), the court enunciates
“Millions of acres of land otherwise cultivable must be left in their present arid and worthless condition, and an effectual obstacle will therefore remain in the way of the advance of a large portion of the state in material wealth and prosperity. To irrigate and thus to bring into possible cultivation these large masses of otherwise worthless lands would seem to be a public purpose and a matter of public interest, not confined to the land owners, or even to any one section of the state. The fact that the use of the water is limited to the land owners is not therefore a fatal objection to this legislation. It is not essential that the entire community or even any considerable portion thereof should directly enjoy or participate in an improvement in order to constitute a public use”: Gray, Limitations of Taxing Power; In re Madera Irr. Dist., 92 Cal. 296, 307 (28 Pac. 272, 675, 14 L. R. A. 755, 27 Am. St. Rep. 106); Cummings v. Hyatt, 54 Neb. 35 (74 N. W. 411); Kinney, Irrigation, vol. 3, 1340, 1341; Cookinham v. Lewis, 58 Or. 484, 494, 498 (114 Pac. 88, 115 Pac. 342); Clark v. Nash, 198 U. S. 361, 368, 369 (49 L. Ed. 1085, 25 Sup. Ct. Rep. 676, 4 Ann. Cas. 1171).
We think it is plainly apparent, from an inspection of the act, that its object is for the benefit of the public, even though incidental advantages may accrue to a few land owners within the zone of the project beyond those enjoyed by the general public.
Whether the policy set afloat by the state in any given legislative or initiative enactment is laden with
The decree of the Circuit Court should be affirmed.
Affirmed.
Concurrence Opinion
delivered the following specially concurring opinion:
This suit was instituted by the plaintiff as a citizen and taxpayer of the state against the defendants as members of the desert land board to prevent them from expending an appropriation of $200,000 for the year 1913, and an additional sum of $250,000 for the year 1914, in the reclamation of certain desert lands in Crook County, belonging to the state, and to be acquired by it under the desert land law of the general government, commonly known as the Carey Act. The board is said to be proceeding under Chapter 119, Laws of 1913, being “An act to provide for the construction, operation and maintenance and disposal, by the State of Oregon, of the irrigation project in Crook County, Oregon, commonly known as the ‘Columbia Southern Project.’ ” The act purports to be a provision for the reclamation of lands included in Oregon Desert'Land Selection List No. 13.
The complaint alleges, in substance, that at various times the state, under then existing statutes, contracted with sundry concerns for the reclamation of these lands, all of which contracting parties failed. It is agreed that 5,600 acres are patented to the state, of which 4,400 acres are irrigable, and 2,314.63 acres have
As a foreword, it may be set down that the state Constitution is a restrictive instrument and not a grant of power, so that, unless forbidden by the Constitution, the legislature may pass any act which seems to it proper. Further, the court will not hold an act of the legislative branch of the government unconstitutional, unless it is clearly violative of that fundamental law; and lastly that, if an act is constitutional in one part and not in another, the portion which complies with the fundamental law will be enforced and the remainder disregarded. These are judicial platitudes so well settled that it is unnecessary to cite precedents in support of them.
At the argument the plaintiff contended that the law in question was a local and special law in the interest of residents of the community in which the land mentioned is situated. The legislative assembly in its discretion may enact laws of that nature, unless forbidden by the state Constitution. That instrument prohibits the legislative assembly from passing them in certain enumerated cases: Sec. 23, Art. IY, Con
Under the authority of Cookinham v. Lewis, 58 Or. 484 (114 Pac. 88, 115 Pac. 342), the reclamation and irrigation of arid lands is a matter of public and general interest and an appropriate object of state legislation. The legislative assembly is well within its powers in providing for the improvement and reclamation of the property of the state acquired or to be acquired from the general government under the provisions of the desert land act. It would be a lawful application of public funds to expend them for such purpose. The proposed disbursement of the money of the state for the purpose indicated is all of which the plaintiff complains. It is the mere expenditure of money for the improvement of the state lands, and hence is not loaning the credit of the state within the meaning of Section 7, Article SI, of the state Constitution. The' desert land board may properly expend in a constitutional manner the funds provided for the purpose in question, the same as any other appropriation made by the legislative assembly. If afterward an attempt shall be made to administer the law or to dispose of the state lands in an unconstitutional manner, it will be time enough to decide that
The decree of the Circuit Court will be affirmed.
Affirmed.