144 P. 668 | Or. | 1914
Opinion by
The judge of the Circuit Court made and filed a lengthy and exhaustive opinion, which, with certain exceptions hereinafter noted, we adopt as the opinion of this court. It is as follows: _
“The above cause is before the court for decision on demurrer to the complaint. The allegations of the complaint are familiar to the attorneys for both parties, and hence it is unnecessary to set forth the allegations of the complaint in this opinion. Suffice it to say that this is an action to recover money, which has been paid to the defendant, as one of the water superintendents of the state, and a member of the board of control, and which was paid to him under and by virtue of the provisions of Section 6641, L, O. L., which provides as follows: ‘At the time of the submission of proof of appropriation, or at the time of taking of testimony for the determination of rights to water, the division superintendent shall collect from each of the claimants or owners, a fee of $1.00 for the purpose of recording the water rights certificate, when issued in the office of the county clerk, together with the additional fee of 15c for each acre of irrigated land up to and including 100 acres, and 5c per acre for each acre in excess of 100 acres up to and including 1,000 acres, and lc for each acre in excess of. 1,000. # * All fees collected by the division superintendent shall be accounted for at the following regular meeting of the board of control and paid by sucb board into the state treasury, except, however, those fees due, or to be paid to the county clerk. ’ A demurrer has been filed to the complaint upon the following grounds: ‘That the complaint fails to state facts sufficient to constitute cause*422 of action against the defendant, in that the complaint shows upon its face that all the fees alleged to have been collected by the defendant, were • collected under and pursuant to the provisions of Section 6641, L. O. L., and hence were legally collected, and turned over to the state treasury of the state of Oregon.’
“Again, it is contended by counsel for the defendant, in support of their demurrer to the complaint, that the money was paid by the plaintiff to the defendant under and by virtue of the provision of Section 6641, L. O. L., which is a valid enactment, and therefore the plaintiff cannot recover the same. Counsel for the
“The land owner, who files his claim with the board of control and pays his money to have his water right adjudicated, receives some benefit over the other taxpayers of the state, in that he has his water right adjudicated and obtains from the‘board of control a certificate showing his water right, which is certainly a benefit to him, in case he either des‘res to sell the land with the water right or the water right alone. Furthermore, it is optional- with the land owner or the owner of the water right, whether he has his water right adjudicated or not. The fees are not paid simply as a filing fee, but cover all the services of a state engineer, and board of control in the surveying of the land, and making a plat thereof, taking the testimony and adjudicating the water right. Of course, the
“Counsel for the plaintiff in the able brief, which they have filed, have cited tbe court to numerous decisions of other courts, bolding that acts of tbe legislature, exacting a fee in tbe administration of estates proportioned upon tbe inventoried value of an estate, are unconstitutional as imposing an extra burden upon tbe property belonging to tbe estate: State v. Gorman, 40 Minn. 232 (41 N. W. 948, 2 L. R. A. 701); Cook County v. Fairbank, 222 Ill. 578 (78 N. E. 895); State v. Case, 39 Wash. 177 (81 Pac. 554,109 Am. St. Rep. 874, 1 L. R. A. (N. S.) 152). These decisions are all based upon tbe theory that tbe person paying the fees for the administration of tbe estate does not receive any benefit, by reason of tbe payment, and, furthermore, in most instances tbe fee is arbitrary and not fixed upon any rule of percentage. In the case of State v Gorman, tbe court says: ‘It seems hardly necessary to refer particularly to tbe schedule of values and of amounts required to be paid, to show that tbe law wholly fails in apportioning tbe burden imposed, to regard the constitutional rule of equality, measured with reference to tbe value of tbe property taxed. In tbe first place, estates not exceeding $2,000 in value are wholly excepted from contribution. If estates are taxable in this manner at all, such an exemption is contrary to tbe requirements of tbe Constitution: Le Due v. City of Hastings, 39 Minn. 110 (38 N. W. 803). Again, while tbe schedule of sums to be paid is arranged somewhat with regard to value, yet this is done arbitrarily and not upon any rule of percentage; and tbe burden is very unequally distributed, as measured by tbe standard of values. To illustrate, an estate of little less than $50,000 pays a tax of $100, or about one fifth of one per cent of tbe value; an estate ten times larger pays a tax fifty times larger $5,000, or about one per cent of tbe valuation; an estate of $500,000 pays a tax of $1,000, while an estate of $500,001, one dollar in excess of tbe former, pays a
“Dated at La Grande, Oregon, this 30th day of March, 1914. J. W. Knowles,
‘ ‘ Circuit Judge. ’ ’
“Any such claimant who shall fail to appear in such proceedings and submit proof of his claims shall be barred and estopped from subsequently asserting any rights theretofore acquired upon the stream or other body of water embraced in such proceeding, and shall be held to have forfeited all rights to the use of said water theretofore claimed by him.”
It is evident that a failure by the claimant of a water right to appear and submit his claims when properly required to do so bars his right to assert it thereafter to the same extent that a party is barred who makes default after service of summons in a proceeding at
It is said, however, that the clause in Section 6641, L. O. L., which exempts from payment of this fee claimants having permits under the act of 1909, renders the act discriminatory; but, when Section 6641 is read in connection with Section 6601, the apparent discrimination is explained. The latter section requires the state engineer to exact in advance from the applicant for a permit to appropriate water exactly the same amount as fees which is exacted from the claimants upon final determination. The theory of the act seems to have in contemplation the fact that ultimately all claims to water rights in the streams of this state will have to be determined and settled by the board, and exacts in advance from the applicant for a permit the possible expense of a determination of his rights. Having paid this once, he in good conscience should not be required to pay it a second time. If anyone should
“At the time of the submission of proof of appropriation, or at the time of the taking of testimony for the determination of rights to water, the division superintendent shall collect from each of the claimants or owners a fee of $1 for the purpose of recording the water right certificate, when issued, in the office of the county clerk, together with the additional fee of fifteen cents for each acre of irrigated lands up to and including one hundred acres, and five cents per acre for each acre in excess of one hundred acres up to and including one thousand acres, and one cent for each acre in excess of one thousand; also twenty-five cents for each theoretical horse-power up to and including one hundred horse-power, and fifteen cents for each horsepower in excess of one hundred up to and including one thousand horse-power, and five cents for each horse-power in excess of one thousand horse-power up to and including two thousand horse-power, and two cents for each horse-power in excess of two thousand horse-power, as set forth in such proof, the minimum fee, however, for any claimant or owner in such cases to be $2.50, also a fee of $5 for any other character of claim to water. All fees collected by the division superintendent shall be accounted for at the following regular meeting of the board of control and paid by such board into the general fund of the state treasury, except, however, those fees due, or to be paid to the county clerk. But in cases of appropriations of water*432 made under a permit issued under the provisions of this act, only' $1 recording fee above provided shall be so collected by the division superintendent.”
Bearing in mind that the applicant for a permit is required by Section 6601 to pay in advance acreage fees, that is, graduated fees proportionate to the number of acres to be irrigated and a fee for recording his permit, and that he is required by Section 6633 to make final proof to the satisfaction of the board of control that his proposed appropriation has been perfected, it would seem that by the section above quoted it was intended to indicate that at the final determination no further fee should bé collected from the appropriator under the act of 1909, beyond the sum of $1 necessary to record his certificate of final determination; that being the only fee not before exacted of him under the provisions of the previous section. But it was, no doubt, the intent of the lawmakers to require of other persons taking the benefit of the law by having their claims adjudicated under it to pay a like sum, as, at least, partial compensation for the expense to the state. In this we see no discrimination or unfairness, and certainly nothing that would satisfy us beyond a reasonable doubt that the act is unconstitutional.
The judgment is affirmed. Affirmed.'