Portland General Electric Co. v. City of Estacada

Argued January 3, modified March affirmed as PORTLAND GENERAL ELECTRIC CO.

CITY OF ESTACADA

241 P. 2d 1129 Hibbard, L. of Oregon City, argued George for With him on brief were cause appellant. John Cald- Oregon Beattie & C. Hibbard, City, and well, Oregon City. for Phillips,

H. H. the cause Portland, argued Phil- him on the brief were Griffith, With respondent. of Portland. Coughlin, and lips J. LATOURETTE, from a re- decree city Estacada

Appeal and from within including straining enjoining Mill belonging boundaries “River plain- Plant” under 210, to annex ch. the city sought tiff which The decree held that the annexa- Laws 1949. Oregon void to plaintiff’s property were tion proceedings for sole of tax- purpose instituted were they since and un- and were unreasonable land ing plaintiff’s and the sheriff also the assessor enjoined lawful, on it, taxes collecting assessing from property respectively. on appeal raised for proposition, first city’s

The sufficiency of the com- challenge first time

147 plaint, quo plaintiff’s is that warranto would be sole remedy injunction suit not lie. The that an will following authority propriety cases are injunction validity pro of annexation suit to test the ceedings: v. P McMinnville, 410, Thurber 63 Or 128 Cottage City 43; Grove, Landless v. 64 P 155, 129 Or Marvin, v. 341, 136 P v. 537; 6; Couch Or Cooke Spence Portland, 69 v. 1095; Watson, Or 139 P 785. 233, 186 Or P2d authority The contends that on of State ex rel. quo Tillamook, P Port Or 332, 124 warranto remedy pro is the attack an exclusive annexation ceeding. quo In that case we held that warranto ais proper proceeding, but we did not hold that it was exclusive. urges further that the above cases are dis-

tinguishable from the case at bar because those cases proceedings the were declared void in that the cities comply procedural require- did some not with essential ment. This contention is not accurate in since, several of the cases cited, above the annexation was attacked grounds validity machinery on other than of the leading up to the election. It is true, however, none of the cases so far as went to hold that a suit equity proper proceeding would in a of this kind necessary it where was to consider matters aliunde the record. respectable authority

There early is in the Ore gon proposition corporation cases for the a where jure quo is than de rather de warranto is the facto remedy. cleavage opinion sole Since there is a wide among remedy the members of this court as to which present appropriate opinion case, we are of the may that on record made we treat this as one for declaratory judgment § 6-602, OCLA, under a follows:

“* ^{[*] [*]} Any person interested under a deed, constituting writings other contract or will, written legal rights, or other a or whose status contract, statute, constitution, contract or relations are affected a municipal franchise charter, ordinance, may any question of construction have determined validity arising instrument, such under municipal ordinance, charter, statute, constitution, obtain a declaration contract or franchise and rights, legal thereunder.”; or other relations status declaratory judgment being remembеred that liberally con- and is to be statute statute is remedial questions fact strued and and that administered, may as in other cases. be tried and determined question court the lower did not

Since joined bringing injunction issue suit, of the appealed the case decision, after an adverse and, propriety challenges, time, for the first now litiga- justice and to terminate in the interest same, duty questions at issue on to decide the it is our tion, may properly do so. if merits, we appealed from have not assessor and the sheriff against injunction them. remains decree There involving parties controversy justiciable between the municipal proper question fran- exercise of city by annexation statute. chise conferred on. Declaratory Judgments, ed, 712, 2d Anderson, § read: we Declaratory Judgment granted will be even

“A prayed other relief asked, but some for, when conjunc- injunction, prayer is in or where as an tion with request for other or where the relief, application relief or abandoned, for other relief is where may relief in the prayed for Indeed the Court denied. declaratory grant motion of its own judg- declaratory any prayer. too, So absence prayer response for may to a be made in ment prayers although general other inserted with relief, for different relief.” shall “No cause OCLA, that, in §9-102,

We find wrong brought having on for been be dismissed of the court.” side al., et 189 Or

In the case of Miles et al. Veatch appears from it 220 P2d P2d 506, 535, complaint plaintiffs based their that amended theory null the statute was cause of suit on the that same would the enforcement void; that damage irreparable that them; result in loss and remedy speedy they plain, adequate law; at no had declaring prayer prayed for a decree and that the perpetually enjoining the law act null and void and attempting enforcement officials from to enforce proceedings as one for a statute. We construed the rehearing, declaratory judgment. petition for it On brought was insisted that suit was injunction purpose procuring suit “for the an as injury injunction prevent prop- threatened to their erty property rights.” We said: “* * * sought Even if that were relief so, adjudication

involved an that the initiative act was declaratory unconstitutional, and, therefore, Declaratory Judgments, Am. Jur., character. 16 complaint might § The amended have 3. been based declaratory upon judgments either the uniform act (§§ A.) injunction C. L. 6-616, 6-601 O. or the being construed it statute. We based prayed reason that former, decree fact * * * ‘declaring said initiative act null and entirety’. opinion We were of the void pleaders prayer that the such a indicated conceived they declaratory a case for a had made decree. Pleading, § 110.” 41 Am. Jur., Declaratory Judgments, Professor Borchard on 2d p. ed, said, at 362: “* * * quo Since a warranto is traditional writ lineage, an occаsional court conclude ancient will trying

that it is indicated method of title to validity public office or the anof election or other readily perceived act. But most courts have that declaratory judgment is a vehicle of relief of equal efficacy quo with warranto for the determina- rights parties, having tion of the advantage of the while escaping some of the restrictions * * quo warranto, p. Declaratory Judgments (published 341 of On 1934), Professor Borchard said: *“* * ever-greater interference With

government private affairs of individuals, important often becomes the individual to test validity present proposed, interference, * * * applied against before it is or invoked him. As a the mere enactment of a rule, statute or ordi- imposing nance restraints on an individual im- plying by prosecuting enforcement officials threat- hampers plaintiff’s peace ens freedom, pecuniary jus- mind or and creates interests, ticiability proceeding of the issue sustains a injunction declaratory and, a for a fortiori, ’’ judgment. suggested attorney general It is that since the proceedings, copy a served with constitu- question being juris- tional we would have no involved, judgment. to declare a It is that the statute diction true general attorney must be states that the served with “ * * * copy proceedings where, the consti- ordinance or statute, charter, franchise is al- tution, * * leged provision unconstitutional, This unimportant, however, since we have not becomes constitutionality passed in- on the ordinance Declaratory Judgments, 2d volved. See Borchard on p. 275. ed, 1 v. Dist. No.

In the case of Dist. No. School School declaratory judgment 45, 148 554, 37 P2d Or validity proceeding was instituted determine urged It was the consolidation of two school districts. remedy, quo appropriate Point warranto was the being appellant brief No. II of the school district’s “Only proceeding a direct follows: the State in validity a school formation of can attack the consolidating changing boundary it lines, district, ques annexing disposing it of this to another.” In we said: tion, * “* * remedy by proceed- think that this We declaratory judgment ing not under the law should merely parties a because denied to the hereto be might proceeding quo nature of warranto also invoked.”.. 180 Or Board, v. Tompkins Boundary District judgment declaratory act was 177 P2d

339, 416, adjudication by property invoked owner to obtain validity of various school of the consolidation “ being alleged irre- it that he would ‘suffer districts, injury plaintiff’s property parable and the taxes on ” materially plaintiff’s detriment’ will be increased to illegal For was declared and void. unless election appeal, at it bar, time as in the case was first on remedy quo warranto was sole contended validity cited, We with of the consolidation. test the approval, 45, No. No. 1 v. School Dist. School Dist. Tompkins supra. it asserted that ease, In the was authority of Statе ex under rel. v. School District quo pro- warranto 655, Or 172 P2d 441, 179 23, No. municipal remedy ceeding a de was the sole where facto § corporation OCLA, held under 6-602, existed. We right validity an- had the to have the rights affected, nexation determined since its were qno remedy. and that warranto was not the sole declaratory judgment proceeding A was invoked to validity determine of the annexation school Clatsop districts Co. School Dist. Webb justiciable 324, 332, Or 215 P2d 368. One issues which the case turned or not was whether polls pre- the chairman of the school board closed the maturely, depriving Huckleberry, registered thus one voting. question voter, of This involved a of fact apparent appears on the election It records. face of daylight saving that the on election conducted time rather on time, than standard and the election carried by a The trial vote 37. court sustained the complaint demurrer to the as to the above issue. This sitting speaking through court, banc Mr. Justice Hay (there being in the case Justices Lusk and Brand), holding: reversed, justiciable controversy having

“A been stated, sufficiency complaint the test was not plaintiffs whether or not showed that were en- declaratory judgment a titled to in accordance with theory, they their but whether or not were entitled they all, to declaration at if even were mistaken * * * theory. though in their even Moreover, the plaintiffs had not been to a entitled favorable decla- complaint, ration the facts stated in their if justiciable complaint controversy a the stated be- parties general the the demurrer tween should have been thereto controversy and the overruled, judicial been a should have determined declara- tion.”

We also said:

“* * * seem the that, And it would notices having present informed the the case electors p.m., meeting o’clock, held from seven would be the p.m., day chairman certain, on a to o’clock, nine keep obliged to were and other election officials continuously meeting polls open between and the they if such so, to do such hours. If failed regis- Huckleberry, a resulted in failure being right his exercise tered denied voter, of his vote election, at lack franchise if change election, sufficient to the result was alleged seem then it would to be the fact, (Italics set aside.” have to be the election would ours). hear- “for case remanded with directions was Upon hear-

ing upon such of action.” such first cause go ing, necessary record outside it would or proceedings whether to determine the election pre- Huckleberry, registered qualified voter, not one a polls, the election or not sented himself at the whether polls prematurely and on side of closed, what had been question have voted. he would failure based on the was

Webb’s cause action permit him vote of the election officials issue, A trial had on this action election. appeal, being upheld by trial court. On the officials considering in the which ob- case, the evidence after viously records, we was evidence dehors the election affirmed.

According was a authorities, to the Webb case declaratory judgment however, attack; collateral a collateral makes no distinction between act corpora- jure or de or between de attack, direct facto justiciable parties issue If is a between tion. there legal party is status of a affected wherein municipal may he ordinance, “obtain a charter legal rights, status or other relations declaration authority prop- for the The Webb case thereunder.” declaratory judgment may osition that a be obtained jurisdictional appearing there is a where defect not of the on face record. referring dissent, his Mr. Justice in Lusk, ground on case,

the Webb brushes aside that it appear that does not consolidated district had * * * “achieved de status and in event the facto question passed upon here debated was raised or by the court.” In the case, Estacada, for the instant appeal, quo first on time raised warranto issue by asserting, complaint “The does not state suf- facts passing ficient to constitute a cause of suit.” In sufficiency complaint, therefore, arewe allegations complaint. confined to the of the ref- No complaint erence is made either the in in the answer corporation. ato de To his bolster dissent on facto phase the de our esteemed case, associate facto gone complaint has outside of the and resorted to the evidence in order to draw his conclusion that Estacada, corporation is a annexed, de because he alludes facto spent by city running $4,000 which was water territory, mains and road into the annexed but establishing even this evidence falls far short of mayor city, plaintiff’s de status. The over facto timely objection, proper testified had spent running $4,000 water mains into the annexed territory disposal plant and had built a new portion leading with road to it.

Sections and 114-121, 95-1808 authorize cit- OCLA, plants disposal ies to extend water mains build out- corporate city. limits of side can How, then, improvements it be said that the alluded to were ac- complished under the above statutes or under some flimsy inadmissible, such scheme? In onr opinion, other de a corpo- establish to is insufficient evidence facto ration. the debatable question that

As to the contention that say it to ease, suffice in the Webb was raised to raise such unnecessary undoubtedly thought it was Dist. No.1 v. School School this court a since question Boundary Tompkins District v. 45, Dist. No. and supra, Board, held that warranto quo had supra, previously declaratory and that a an exclusive remedy, was not annexa test proceeding judgmеnt appropriate court of 18 this years, proceedings. period tion Over declaratory judgment to the rule that has adhered validity test the of annexation act could be employed rule has attained a stare decisis proceedings, and mighty slowly, status. We should with proceed reasons, before we logical upset apple sound out that eminent cart of As procedure. pointed J. of the S. Court jurist, Parker, John U. Judge Chief ain recent address Circuit, for the Fourth of Appeals Portland, legal profession very is destroying a maze of involvements existence in procedural delays. jurisdictions

It cannot be denied that some hold will not lie where declaratory judgment plain- that such adequate remedy. One case tiff has another Phoenix, 54 Ariz 95 P2d City 424, Skinner dissent. It be Mr. Justice Lxxsk his will ob- cited by a uniform Arizona does not have declara- served that uniformity in that act. It lacks con- tory judgment that the act is remedial should be no clause tains Our court is committed to the liberally. construed judgment may act declaratory that proposition annexation test validity proceed- employed ings, quo remedy. and that warranto is not the sole Oregon practically It will be noted that all of the cases holding quo remedy warranto is the sole were prior passage declaratory judg- decided to the Declaratory Judgments, ment act in 1927. Anderson on following say: § vol. 2d has ed, 396, 195, holdings declaratory judgment “The ac- may regard tion be entertained without to the ex- remedy, istence another are not sustained harmony reasons, better but are more in with spirit purpose declaratory the true procedure.” supra, No. School Dist. 1 v. School Dist. No. is cited in the footnote under that section. depart Of those who are loathe to from the old preface order, Professor Borchard in the Declara- to tory Judgments, following say: 2d has the to ed, declaratory judgment anatomy exposes “The the judicial process many of the and discloses the ob- justice to

structions the current ates. These the administration of legal system incorporates and toler-

obstructions, in the encum- identified brances and barnacles which have accumulated over procedural the centuries around the are writs, by many judges lawyers indige- cherished and as process. system judicial the and nous to to the many Hence members bench and bar not unnaturally acquire the view that the technicalities profession system, and the characterize and they that for the exist delectation and of benefit priesthood they the votaries of the are in- itself; forget merely clined to bench and bar are both people, servants of the the better to enable the ad- justice accomplished.” to ministration judicial system The has been endowed with the technicality inception, causing curse from its consonant uncertainty delay enmeshing and often the real

15'T justicе. great perversion One issues to the declaratory judgment for the enactment of the reasons procedural bondage. act to the fetters unloosen on of the court In is a division the case at bar there remedy. appropriateness Those in the mi- compel nority would have this ease dismissed quo plaintiff warranto. In such situa- resort to shay”, to the “hitch old Dobbin would tion, City change Oregon is, if drivers, drive to placed attorney allow himself to be would district represents such, since two he, seat, driver’s opposition present to the case the defendants in plaintiff. from he refuse to shift Should contentions of then be other, one horn to the dilemma would bring pro- upon plaintiff a mandamus incumbent quo pro- compel ceeding him in a warranto to act finally plain- ceeding. settled, matter was After the similar, record tiff return here with the same, would being the the ultimate result now with have, which we same. two forms see, difference we can party-plaintiff, than name of other relief, quo proof. warranto, burden of

concerns the annexation, sustain the be on the burden would declaratory judgment the burden act, while, under illegal prove plaintiff annexation. is discretionary power the court has instances, In both adjudicate and same defenses of merits, on the proceed- estoppel, in available either etc., are laches, bring required plaintiff ing, now that if were so proceeding, quo would be sacri- substance warranto goddess a name? form. “What’s in of to the ficed name other would a rose, we call that which as sweet.” smell approxi-

This case has been before the courts for mately years, years elapse two another two would a final determination. This before matter is not litigants great importance people to the but to the community well, as and all are entitled to know possible date what their is, at earliest status majority justification postpon- can see no we for ing fairly action where the case was tried on its merits just court, and it in the circuit can be determined as judicially now as later. appears

In the case bar, at that there are two argued quo in dissents which it warranto proper proceeding, specially concurring opin- and two thought ions in which the is advanced that in- junction appropriate remedy. suit is Could one cogent impelling argument, think of more when unanimity, embracing not in we ourselves are declaratory judgment provisions of the act? city proposition

The raises the second that, “The city reasonable or unreasonable extension bound Oregon aries under the annexation statute is not a subject judicial inquiry.” Many eases are cited notably position, among to sustain its them being City Burlingame County, v. San Mateo App2d 705, 203 P2d 807. counters Cal array position with a like of authorities to sustain its proceedings question annexation corporate reasоnableness extension of limits is sub ject judicial review and cites Vestal v. Little Rock, leading 891, 16 Ark SW SW case. 321, 15 gain little solace from the eases cited both We they hopeless parties since are conflict. question

The crucial is whether or this case right contiguous has the absolute to annex Chapter irrespective property reasonableness. of its Oregon part, reads : Laws any incorpo- 1. boundaries “Sec. 95-901. The city existing in this state or hereafter rated now contiguous territory may in- new be altered and required proceedings had after cluded therein by by separated Areas from cities this section. contiguous shall be considered streams rivers to such cities.” machinery goes provide in fur- act on further to including an election in annexation,

therance of city notice. annexed, in the area to after due be Oregon In a number of the decisions which definitely held that above, it is where reference is made proceedings city violates the state in annexation a immemorial, annexation void. From time law consistently interpretation in the held that we have legislation relating to the enactment of statutes state city the same must be exercised that or ordinances arbitrarily; reasonably therefore, in statutes and not legislate proceedings, empowering annexation cities legislative grant implied that such there is within arbitrarily, reasonably legislate cities must legislative part reasonableness and such literally written grant if it were same extent as to the the statute. into enacting legislature presumed

It must be fully the decisions legislation conversant with this passed cities must all ordinances of this court annexation intended that and that it reasonable, reasonably. It would be effectuated should be cities legislature intended that to think that absurd authority to reach out its have carte blanche would envelop property octopus like tentacles in no wise could be considered as beneficial to the property or to the annexed. If this so, were not there nothing prevent would attaching be to the cities from territory themselves far removed from en by strip, long virons prop narrow ribbon so erty contiguous. attached was ex State rel. Bibb v. City Reno, 64 Nev P2d 127, 178 366, 368, we find the following language: Shaw,

“Chief Justice famous Massachusetts jurist, necessary put said: ‘It is extreme cases principle.’ apply to test a We will a test: Could Reno annex farms, all and mines in ranches county? strip Could it annex a narrow to and then include Lake Tahoe? Or could it a hundred hurdle gypsum plant miles and annex a in northern Washoe County? respondents’ position ‍​‌‌‌​‌‌‌‌​‌‌​​​​​‌‌‌​​​‌​‌‌‌‌​​​‌‌‌​‌​‌​​‌​​​​​​‍The test shows is may unsound. It well is settled that a court construe an annexation statute and determine it has whether misapplied by been council. An annexation arbitrary, unjust which is unreasonable, and un- necessary will be McQuillin held invalid. on Munic- ipal Corporations, 2nd ed. 1, 291, revised vol. secs. 293.” Corpоrations Municipal (rev),

Mr. McQuillin 1 following say: § 2d ed, 291, has the * “* * However, under most statutes the generally question courts hold that the rea- corporate sonableness of extension of limits is sub- ject judicial review, and if found unreasonable, void. will declared judicial

“The view will be better understood indicating general a few considerations which have influenced courts. The conditions under which municipal may territory limits be extended territory, annexed, and the nature of such well are general outlined in terms an Arkansas case which usually (See footnotes). followed.” See eases §44. CJS, also 62 Oregon municipal corpo

It is the settled law in that exercising powers, granted rations, in their either legislature their charters, cannot exceed the powers granted they granted them nor can exercise such powers in an unreasonable manner. In Sloan v. Baker, quote, 139 Or approval, 370, 374, P2d 362, we with Municipal Corporations, § McQuillin, 2d 367: ed, “ powers ‘As relates to the exercise of generally regarded municipal corporations sovereignty, they have none cannot the elements of go beyond granted powers them, they granted powers must exercise such in a legal propositions reasonable manner. are These everywhere by judi- settled, well and are enforced ” judgments.’ cial argues proceed- next that the annexation ings in were, fact, reasonable. The trial found court they were not. The record shows that the trial judge personal inspection territory made a of question. equity In an case the decision of the trial judge weight, is entitled but where he examines the quo, findings locus his and decree are entitled to more consideration. appeal,

As the case is tried de novo on must we look the facts to determine whether or not the evidence supports the decision of the trial court. Plaintiff called against witness stand seven witnesses one space permit the defendants. As and time will not analysis the evidence of an each witness, we will same. summarize the In order to follow our sum- inserting copy an ex- below a marization, we are property in- case, an aerial view hibit territory, surrounding air- volved, taken from an with single plane some feet. The 3,000 at elevation jagged heavy Estacada; enclose the lines property; of the annexed the whole lines enclose property. plaintiff’s parallel lines enclose

163 may The whole area annexed unto likened shape, being adjacent city “dumbell” one end embracing plaintiff’s power- and the other dam and separated house. The ends of the two “dumbell” are strip varying land widths, the narrowest point, hereinafter referred the “bottleneck”, to as be- ing less than 300 feet, exclusive of the river which flows along westerly property. side the annexed South adjacent city proper of the “bottleneck” and persons is where all the reside inside of the annexed territory other than families, two one which resides territory within the between the “bottleneck” and plaintiff’s (circled property map) on the and the other property sought at the extreme northeast corner of the property, comprising to be annexed. Plaintiff’s practically acres, is one-and-one-half miles, round- city boundary proper. about from the road, There is connecting plaintiff’s no direct property, means of access to through

aside from that on foot the woods, gully deep separating and then one must traverse a plaintiff’s property. from comprises population Estacada 222 acres with a people snuggles in the foothills of the Cas- range. cade consists of 1,038 lots, which improved, unplatted are and 34.6 acres of property, occupied. none of which is interesting directly

It is to note north of the city proper, but included in the there annexation, are numerous homes on situate level land. The area north of the “bottleneck” is wooded land, there is no habitation whatsoever within the boundaries of plaintiff’s property. photographs give

There are evidence aerial very comprehensive view of the entire situation. photographs From these and from the evidence, other nothing Estacada to offer it is discernible that has city plaintiff’s property, way and benefits to city nothing plaintiff’s property to the has to offer taxation. Plain- the revenues derived from other than plant at the river mill dam does not tiff’s electric light power and receives Estacada; even service it total assessed valuation from other sources. The while the assessed valuation $362,830, Estacada is plaintiff’s property twice much. $708,000, is almost as arguments

Nearly plaintiff’s are directed to all of very propositions legal involved, and little is of- proceed- of the annexation fered the reasonableness city’s argument ings. reasonableness The for the sole city has increased of the annexation is years; persons population that, within ten building, home is suitable for flat, “The area annexed lake recreation area. There and borders beautiful already and with the extension there, homes are furnishing improvements roads, and mains, water part contemplated lighting, and in com- all of street will build doubt the area there can be little menced, problem policing rapidly.”; “The that, and more greatly aggravated area could be annexed city.” respondent’s from the land removal of population, as hereinbefore increase in As to the expand plenty pointed within of room to there is out, city proper, unoccupied portions so far already being concerned, as there is the homes they located south indicated, were hereinbefore adjoining itself. Concern- “bottleneck” interesting ing policing to nоte area, queried Mayor city’s Ames, A. Gf. when witness, replied, policemen many had, “One how about problem policing appears to good one.”, so that advanced above reasons minimis. de city as to the reasonableness of the annexation are untenable. yardstick

No exact can be laid down as what reasonable what is not. A sound formula is laid City supra, p. down in Vestal v. Rock, Little at as follows: city may reasonably properly

“That limits contiguous (1) be extended so to take in lands they platted when are and held for sale or use as (2) they platted lots; town whether or if are not, brought held to property, on be the market and town sold as they corresponding when reach a value (3) they with the the owner; views when furnish densely community, repre- for abode settled or growth beyond legal sent actual of the town boundary; (4) they any proper when are needed for purpose, as town for the extension of its streets, gas, system, supply places or sewer, water or to for the abode or residents, business of its or for police regulation; (5) the extension of needed they by adaptibil- when are valuable reason of their ity prospective [sic] for town uses. But the mere fact that their value is enhanced reason of their corporation give ground to the nearness would not appear for their annexation if did not it that such adaptibility value was enhanced on account of their to town use. city

“We conclude further limits should contiguous so extended as to take lands (1) they purposes agri- when are used for horticulture, culture or and are on valuable account (2) they use; such when are vacant, and do not special adaptibility derive city from value their uses.”

We do not hold that the above is exclusive as facts may depend alter the situation since each case must pre case, its own facts. When have a we such as is sented record here, it where is obvious that the plaintiff’s property inclusion was unreasonable and pur- employed for the annexation was the sole where enhancing pose the revenues of en- practically now that which amount twice joys, the same is void. question as to we should arises whether

The proceedings The void. declare the entire annexation plaintiff’s prop that the annexation of trial court held enjoined erty collection of void and to Estacada was proceedings opinion whole it. is our that the taxes on It people that the of both districts are for the reason void particular if the annexation annexation, and, on a voted property any part involved, is void as to necessarily annexation falls. the entire follows trial modified directions to the decree will be with declaring the annexation a decree entire court enter proceedings void. CONCURRING. J.,

TOOZE SPECIALLY in the result reached Justice Latоtjr- I concur reasoning. However, his I in most of and also ette, equivoca- go step without hold, further and one would remedy proper injunction in this case, is a that tion, remedy. Being appropriate of that if not the most unnecessary wholly adopt opinion, is that it I feel declaratory proceeding theory a for a that this is injunctive merely judgment, relief an incident. with questioning as to be understood I do not wish But declaratory judgment proceeding propriety as of a applied the instant case. might ap- it that all stated we outset,

At the proposition agreement upon parently to be in seem attempted in void annexation this case is be- that the real unreasonableness. difference cause remedy dispute proper opinion avail- a as to the is illegality. Mr. Ltjsk maintains Justice to test able quo of the State is ex- in the name warranto that remedy, injunction and elusive at a the suit of private person will not lie. For the reasons’ to be myself I find stated, unable to subscribe to the doctrine my by worthy enunciated associate. any person

It the law that threatened with sub injury stantial a the enforcement of void act of a municipal corporation right protect has the himself injunction. right depend The exercise of this is not upon person, ent the consent of other natural or correctly artificial. If I understand that which is said opinion clearly in the of Justice Lijsk, he concedes that that is the law. I However, as understand his position, alleged illegality questioned is that the appear upon act must face record in before junction private will lie at suit a individual, that it cannot be established aliunde the record. position, applied this as

With case, instant agree. crystal reasoning I do not It is from clear Justice as well from as he authorities Lusk, support annexing relies thereof, that if, territory, municipal corporation omits to follow some jurisdictional requirement, proper such as to hold subject its action is void election, to attack in an injunction suit. opinion

I am sure that we are united in our that, here, in the annexation statute involved there is, implication, requirement therein written that a munic- ipal corporation taking advantage thereof must act requirement reasonably. just This of reasonableness jurisdictional important requirement as sought contiguous, the land to be annexed be or that question an be held determine election in the manner outlined the statute. It is obvious that there might many contiguity cases in be which the fact of appear upon would not the face of the record, required the facts, where would be to establish evidence might noncontiguity, they But the fact whatever be. proceeding render the en- established, would however tirely void. quo of Justice Lusk that warranto contention remedy in case is

is an exclusive a of this kind based premise dealing upon the sole that we are here with corporation. cases, maintains, a In such he de facto injunction a attack, suit amounts to collateral and, permissible. would seem law, under the that is not It original premise if his follow, therefore, that opinion my wrong, fail. It is his must that contention premise is erroneous. his corpo- a law that there cannot be de It is facto jure corpo- possible should be a de

ration unless there Municipal Corporations, § Am Jur, 11; ration. 37 § Municipal Corporations, 30. CJS, “de facto” as follows: defines Webster reality; distinguished “Actually; fact; — corporation, jure. court, officer, A de facto from de under a like, must exist claim and color or the possible requires right, a de that which' there should be jure corporation, court, or the like. officer, *” * * (Last ours.) italics opinion firmly under no circum- I am territory em- could the combined whatever stances corporate Esta- limits of the braced within the sought be established, heretofore cada as jure municipal corporation. become de annexed, statutory authority or other would no There corporation. of such The vote the creation authorize proposed annexation, whole taken was parts upon separate must, therefore, thereof. It jurisdiction No has the as whole. court considered parts. good, to divide it It is all into either or it is Being bad. all unreasonable and, hence, invalid, there give any support. exists to no statute it Insofar as the particular situation now before this court is concerned, necessarily though the effect must there be same as existed no annexation statute whatever. aside Also, question property from the reasonableness, be to city subject added to a must be to annexation. Plain- property subject. tiff’s was not so opinion, Justice makes his the statement Lusk, jurisdiction, “this not want of but the erroneous jurisdiction.” disagree. my opinion, exercise of I city wholly jurisdiction the defendant lacked to incor- porate sought into its limits the it tract of land to annex. absolutely nothing There is can or could do to proposed make annexation, this considered as a whole, power. a reasonable exercise of It is beside the might lawfully part issue it have annexed attempt this tract. it did do, That nor to do. This particular attempted annexation never did and never could have the breath of life. It “a died hornin’ In”. opposition direct to what Justice Lusk states, question here does not involve mere defect in the power; power exercise of it a total want do thing attempted organization to do. The jure corporation impossible. of a de proceeding merely Had the annexation been void- being wholly able, instead of void, there is much opinion agree. of Justice Lusk with I which could it But that, occurs to me is void, where act all is void for purposes, it should immaterial hbw the fact invalidity Manifestly, many is established. there are might situations which arise where void character proceeding appear aof would not on the face of the require record, and it would evidence to establish necessity but that does not render it less void. fact; logical person im- Is it hold that a threatened with injury of such a void act mediate enforcement thereby deemed be bound until the is, nevertheless, setting it ? That his sees fit to move in aside hands state directly protect he cannot him- are so tied that act proposition me, To such a does not make sense. self? Why party the real in interest— he shouldn’t who is right move the to imme- threatened with injury —have anyone diately ? in his Is hurt because in- own behalf by validity aptly established As so is evidence? is pointed we con- out Justice sometimes Latourette, with of overmuch mere matters form. cern ourselves successfully procedure challenge legal meet the If is enlightened age, should never sacrifice an we sub- of form. for mere stance among disagreement upon propo- no us the

There nullity, proposed annexation is a in- if the that, sition my opinion junction above, it is lie. As indicated will nullity; proposed corpora- the new is an absolute that it a de status. attained tion never facto being challenged plaintiff void, annexation The by injunction. remedy its entitled to J., SPECIALLY CONCURRING. ROSSMAN, majority opinion, in the but add the fol- I concur my explanation lowing additional views. upon sufficiency city’s attack the The belated the pro- a complaint statement of cause of as the suit has only disparity of views which this court en- voked the complaint case. The was not chal- tertains about lenged or motion demurrer circuit court. In through objection made, no contention that court way, complaint other that the the evidence cause suit. No one there voiced a state a not did necessary party, claim that the was a or that state remedy. had mistaken its When the under consideration contentions now are they Only (1) reduced their are: the state essence, validity proceeding challenges can maintain a territory quo city; (2) of the annexation to a remedy is the warranto exclusive instances of this quo suggestion kind. In behalf that warranto remedy, city argues (a) is the exclusive that February action taken on voters territory, including de created a facto annexation plaintiff’s property, to the Estacada; (b) pro- this is collateral attack the annexation ceedings. city argues collateral attack can- not succeed must be dismissed. complaint

Let nowus determine whether or purpose assumption states a cause of suit. For that will be made has now filed demurrer to complaint and that it states as bases the con- considering tentions mentioned above. In those mat- given inquiries ters, attention will, course, (1) as to whether or not this a is collateral and attack, (2) injunction proper remedy. whether or not is the I myself will complaint confine to the averments of the and will not borrow from the evidence. complaint plaintiff’s property

The describes the description begins terms of and metes bounds. The “Beginning as follows: at the southwest corner of the Franklin Pierce No. in T. B. S., D.L.C. 3 4 E. of * * *." W.M., on thence north claim line to description terms in which the is cast warrant a belief property that has not been subdivided lots into description and blocks. Since the does not mention or part city’s allude to line which a forms of the boundary, apparently plaintiff’s property lies be

yond city and not touch thereon. The limits does following complaint: pertinent parts of the other are property real “As to the hereinabove described by attempted plaintiff, annexation said and

owned purported and new charter were and are void said in that: of no effect They purpose are “A. for the sole were subjecting plaintiff’s property said to taxation city. defendant “ They are unreasonable extensions B. were and city’s territorial limits. of defendant ‘‘ They plaintiff’s property with burden said C. city plain-

taxation tiff from defendant the defendant without benefit therefore, constitute and, just compen- private property taking without process due of law in sation, and without violation and of the Constitution the United States Oregon. State by plaintiff property “D. real Said owned ’’ wholly unpopulated. is now pleading a is tested demurrer When timely its averments are construed most filed, has been (Christopher against pleader strongly McGuire, v. 879), but a different rule em- 116, 169 P2d 179 Or. ployed demurrer is withheld until after de- when judgment entered. in at- has been Tardiness cree or opponent tacking pleading of one’s calls to aid pleading waiver, doctrine of with attacked formal, technical and unsubstantial the result post- met with a waived. When are deemed defects given pleading a liberal construction poned attack, avail: intendments come reasonable and all Cooper Rogers, Feehely 361, 717, 159 Or 80 P2d 152 P. Ann Tracts, Or v. Hillsboro Garden 840. 1917E Cas just given, we must assume that the reasons

For annexation was made “for admits purpose subjecting plaintiff’s prop- sole said of erty city,” an- to taxation defendant and that the property “plaintiff’s nexation with tax- burdens said city plaintiff ation defendant without benefit to city.” a from said In other this is words, defendant appellant city purposes for case which admits plaintiff’s property the demurrer it of annexed the purpose taxing of the sole and that the it, derive no benefits either from annexation or will compelled pay. from the tax it which will be to require It seems too to clear of citation author- ity property never can be annexed for the sole purpose taxing it, of and that no tax is valid if the person required pay who is to can never it derive money benefit from taken from him. going pertinent

Before is authorities, territory take notice of the fact that annexation good, only city, must be made for the comple also of but annexed. land Each must be mentary purpose to the other. The of annexation must be, not to create unit as matter but law, also aas matter of fact. The annexed land with its homes, capable amalga streets or other features must be city. mation into the The old boundaries and the an homogeneous nexed area must create a whole. A body community; upon people a not a it is the one upon hand and an area land the other which no nothing expected except lives one and of which payment In other taxes. the area words, annexed captive bounty must not be a mere held for ransom or only. opinion purposes of Mr. Justice City Latourette excerpt Rock, contains from Vestal v. Little 891, 16 Ark 11 LRA 321, 15 SW SW possess land the characteristics which must delineates following, be suitable for annexation. The taken City Clayton (Mo App), from Jones v. 7 SW2d of amplified states same in a features somewhat manner: “* * * appellate in the courts However, disposition made character, of this have of cases highly perti- general are

some nent to observations which hand, to effect that exist- matter at may properly ing as to be extended so boundaries they platted, contiguous (1) are lands: When take (2) platted whether lots; and held for sale as town they subject brought be on not, or if are they property reach as town when market, and sold corresponding owners; the views of the a value with densely they (3) for a furnish the abode when growth community, represent actual or settled of the beyond legal (4) municipality limits; its when any purposes, they proper for town are needed gas, or water streets, sewer, of the extension places systems, supply or busi- for the abode or to extension of needed residents, or for ness of (5) regulation; police when their value is en- prospec- adaptability for reason their hanced of rule, converse, has its however, This town uses. tive appears that the it from evidence when so that chiefly purposes contiguous for the lands are used agriculture horticulture, and are valuable on they largely va- use, or are such when account any special value from derive their do not cant, city purposes, incorporation adaptability their regarded municipal as un- limits will within City, inf. v. Kansas 233 Mo. State ex reasonable. City Clayton, v. 1007; W. Stoltman 134 S. Village Pipe supra; Mills Line Co. Moscow Prairie City (Mo. App.), 298; S. W. Winter v. (Mo. App.), 296 S. W. 232.” Kirkwood complaint reverting excerpt By to the opinion, previous paragraph copied of this in a property possesses plaintiff’s be seen will fact, as the defend- attributes; needed none property real “said owned admits, demurrer ant’s wholly unpopulated.” was and it now is It is unplatted property. purpose

We have seen that the sole of the annexa- prop- as admitted tion, demurrer, to tax the erty. go directly us Let now to that feature of the case. purposes frequently Annexations for tax have been subject condemned. The courts hold them void and Very practical support attack. collateral reasons holding; property one is: when owner of is re- quired pay annually receiving a tax without deprived benefit whatever from the tax, not is he money property of his but invitum, his is diminished gain. in value. Thus he incurs a double loss and no speak against The authorities in no uncertain terms by city. Municipal the course taken the McQuillin, Cor- porations, says: § 3d ed, 7.21, “* * * improper city It is to annex to a un- solely prin- and needed cipally from unbenefited rural lands purpose deriving for the revenue there- by way of taxation, and it has been that held occupied

it unconstitutional to do so. Those lands by florist proprietor exclusively in his business as a farmer, to which no streets or other improvements town extend, which the line of city settlements has not reached, and which is laid off for use, and would not be enhanced in subjected value thereby annexation, but would be properly territory to taxation is not nexed to the included an- city.” Possibly glaring the most case in which purposes lines were extended for tax is McCarroll v. Arnold, 199 Ark 1125, 137 SW2d 921. In case, that plaintiffs operators gasoline filling were stations place purported in a entitled Omaha, which to be an incorporated town. 1935Arkansas enacted a statute provided gasoline which dealers in town or city, corporate limits of which extended to within gasoline line,

two miles of the state could sell at the adjoining prescribed rate of tax law in state. passed, unincorpo- that act was an When was Omaha village lay miles south of Missouri- rated which 3% Shortly passage of act, Arkansas state line. after becoming village incorpo- underwent the form of with a territorial bound- rated into the town of Omaha ary quarter long, four miles ter- of a mile wide and minating line. At that time aii at the Missouri state 6y2 per gal- imposed a tax of cents Arkansas statute except, gasoline upon lon all sold service stations already that were in towns within indicated, stations plaintiffs, line. The that is, miles of the state two operators, brought the suit under station Omaha service enjoining purpose of the defendant for the review collecting from from them of revenue commissioner They, per gallon. de- course, cents tax of state 6% granted pended charter which had been lay within two miles of the the fact that Omaha, defendant admitted the line. The Missouri-Arkansas and, have mentioned in ex- we circumstances payment tax, al- planation demand for of his incorpora- in the leged of the land included most purposes not, town and was unfit for was tion order alleged purposes. He that the for such fact, needed incorporating evade Omaha sоle reason gasoline the testi- trial, tax laws. At provisions support alle- mony of his the defendant offered testimony facts This included gation excluded. was strip quarter of a tending land, to show long, agricultural, included four miles and wide mile by wagon impossible of traversal land bluff timber said: The decision automobile. or and con- “Appellees below, on the trial insisted appellant make a cannot collateral here, tend county court in- the Boone the order of on attack corporating conrt was correct trial town of Omaha and that holding. in so contrary, urges appellant here that “On him before chan- the evidence offered under collaterally in- attack he entitled to cellor was corporation that said the reason

of the town of Omaha for incorporation ab initio; order void # * # was in both that the defendant “correct

The court held It then said: these contentions.” “ “* * question, presented therefore, unincorporated can incor- here is town whether long strip quarter porate land four miles running to the borderline of an ad- wide, of a mile joining territory strip which includes therein state, land municipal agricul- purposes, for unsuited adapted for land not needed or uses, tural municipal improvements which no streets other except extend, is uninhabited for a few iso- payment houses, lated farm and thus avoid gasoline theory tax on on state that the order of incorporation though subject void abinitio is not collateral attack?”

The court reversed the decree of the lower court and disposition remanded case in accordance “with equity principles opinion.” as outlined in this principles by quoting were Those stated court Waldrop, City as follows from Collector Kansas Ark 369: Co., 453, 199 R. SW Southern organizing proposed of the court “The order territory incorporated null into an town was not of such void, for the reason that the land was incorporated could form an town. The character as territory attempted record shows that Ogden parallel ran formed into the town of the railroad with it, track on both miles sides and was 7 length and about 5 miles in width. The railroad Ogden station of situated on 80 acres of the 178

land there were a few residences on these 80 acres. Most of the rest the lands within the limits proposed town were timber and the lands, agricultural remainder were lands. There four were pro- lakes the lands within the limits of the posed town. It was manifest owners of the any lands could not derive benefits whatever from being placed lands within the limits an in- * * * corporated town. attempted organization proposed “The territory incorporated palpably into an town was wrong, arbitrary and was an and unreasonable power. ‍​‌‌‌​‌‌‌‌​‌‌​​​​​‌‌‌​​​‌​‌‌‌‌​​​‌‌‌​‌​‌​​‌​​​​​​‍they exercise Under the circumstances as appear from prop the record, it is that the evident erty company subject of the rаilroad local solely burden of taxation and for the benefit of others, taking private property we think this is a case public use under the form of taxation without giving any protection compensation or other there attempted organization for. The of the town of Ogden prohibition was therefore within the of our absolutely Constitution and was void. Vestal v. Rock, Ark. Little 291, 15 Monroe 54 321, 329, 15 S. W. 891, 16 S. W. City Covington 11 L.R.A. Southgate, 778; (Ky.) Unger, B. 491, and Morford v. Iowa 82.” holding something That is a clear more than a people a required charter, few and wild land are municipality. a holding make valid It is also a clear incorporation that when an essential element valid lacking, municipality no is created and, therefore, rights collateral attack will be entertained. no short, can out of an arise unlawful and such an act, act cannot up by anyone be set as a shield kind of case. City Witham v. Lincoln, Neb 250 NW equity by 247,was suit in the owner of a tract of land seeking which had been annexed of Lincoln to have the annexation declared unlawful. The court property strip described the annexed as “a narrow along out like finger, land, reaching plaintiff’s to be required water-main of an 8-inch location exact According Hospital.” constructed to Veterans’ annexation was that insisted city decision, Lincoln, of City to the importance tremendous “of a hamper in measure decision will that an adverse and city.” of fine this and prosperity the continued growth collaterally cannot “That plaintiff The city argued: No. 3661, ordinance of validity attack the and indirectly the state of but that said property, annexing and that same, question Nebraska can * * The at- law; at remedy an adequate has of to provision was made pursuant annexation tacked the decree affirming Home Eule Charter. the city’s declared: the court the plaintiff, favor of of made a personal inspection judge “The trial that the decree held plain- and in his the premises, years for many been used estate had tiff’s real that no of part for no other land, purpose; farm and blocks, into lots or been platted land had ever urban but is solely is in no wise property, and that it at the time will not land, present agricultural annexed to the by being city; benefited said or- city passing of the defendant object lands, or attempting and said annexing dinance * * so, revenue, was to raise do Omaha, v. City from Bradshaw The decision quoted of a similar re- the court, reaching 1 Neb in which 16, declared: sult, authorize a to tax for its a legislature city

“Can to be considered reasonably lands not support, property?” said: v. City Lincoln]

The decision [Witham cannot that a municipality “This court has held as appears for revenue purposes, annex property v. Joerger done in the case at bar. to have been Bethany Heights, Village 675; 97 Neb. of Osmond * * * Smathers, Neb. 509. “ * * * We are constrained to hold that the powеr exceeded its when annexed narrow strip plaintiff’s reaching finger, out like a land, along the location exact 8-ineh water-main required tal, Hospi- land to that such to the be constructed Veterans’ and farm annexation such wrongful authority, without and that said land shall be considered as outside of the boundaries city, the taxes levied the con- struction such water-main are invalid, declared ’’ decree the district court is affirmed. Village Phillips, In Hustead v. 131 Neb NW the said: court may municipality “Further, annex, strictly boundaries,

retain within its revenue farm land for only.” purposes City v. State Avon Fla Park, 108 So 641, 149 409, of quo by proceeding awas warranto instituted the own unoccupied unimproved sought ers of and who lands, adjudication against prop an inclusion of their city. following erties in the is from decision: “# * * Certainly, present when the Con adopted, permitting special legisla stitution was incorporation municipalities, for tion of it was organic statutory not intent or of law of the practice or state, thereunder, that there should municipality relatively large be included in a areas unoccupied wholly of or wild unsuited for lands purposes, municipal not desirable or needed for hope municipal expansion with no of reasonable any portion unoccupied cover considerable unimproved or land included or added to the municipality. large The inclusion of of areas rural municipality solely largely in a lands purpose or for the municipal of taxation, when such areas reasonably any cannot receive substantial bene municipality, fit whatever from the rural actually potentially or are not included lands so municipality except is for taxation, to the useful power legislative stated intent of the not within the an Such of the Constitution. 8, article 8 in section inclusion actually po large or of lands not areas except tentially purposes municipal for useful any corresponding benefit, taxation without by special incorporation or local is whether general 8, or under 8, section article laws under laws municipalities, incorporation en for the pursuant 24 of 3 of the to section article acted governmental au Constitution, is an exercise permitted thority contemplated not or Con rights organic stitution, is a violation property protection of such from the owners taking compensation property their taxation without who, owners or whose whatever govern property so can receive no benefit included, municipality in from the return mental for such taxation. See State otherwise Eidson,

ex rel. v. R. 263, 733; 13 W. 7 L. A. C. J. 115. Tex. S. population very case the small and the this incorporated area of wild land in the town is rela tively great.” solely The court denied relief because “an ouster proper on to such lands alone this record func- judgment.” quo of a tion warranto Graham, R. 46 Fed Paducah-Illinois Co. 2d against taxpayer sheriff suit and the of a board education school district sought injunction restraining the collec appeared aof tax. It that in the tion consolidation Kentucky school the some districts boundaries were adjacent the so extended as to include bed of the Ohio opposite, mark on is, the low-water the that river Obviously, no Illinois, shore. children lived the submerged holding expressing river the bottom. In injunction, to an was entitled

decision said:

“ * * * plaintiff’s If the inclusion of the bridge taxing railroad natural and so that the sole in un- district is so clearly as to show unreasonable purpose of the inclusion was to add to property the taxable of in district, value spoliation such inclusion amount and would taking plaintiff’s property the process tion of school without due primary law. idea in the consolida- districts is to furnish more efficient system people schools to in the dis- common purpose creating There be no trict. could valid pupils were consolidated district where there no to be served. of created, At time this district was person part no course, lived within that boundary covered the Ohio river when at or- dinary its course there never will be changes mark, low-water and unless the river any school children particular territory. placing within that So, particular territory within the district, there could purpose have no to serve been school * ** patrons. way, The result as a either brings practical simply bridge into the matter, purposes. inevitably for taxation district the Such including result the river within sole dis- legislative bodies, and as trict, must be well individuals, presumed necessary to have intended and inevitable result of their action.

"* ^{[*] [*] [*] [*]} indicated, however, heretofore I am

“As satis- purpose fied from this record that sole including any part board in river north of low-water the district Kentucky mark on the subject plaintiff’s bridge taxation, side was to that such taxation be the will end attained being if inclusion, such allowed to stand. Such necessarily case, it the the board was follows that this action arbitrary unreasonable, plaintiff’s rights.” federal violates constitutional Bridge City Co., 249 v. Ironton-Russell Russell Ky a instance in which is another 60 SW2d body sought municipal extend boundaries and to its bridge. spanned the a The latter tax that means Kentucky to Iron- side from Russell on the river Ohio bridge part A the on side. ton the Ohio city an tax of annual the latter collected Russell, and extending municipal By portion. from that $984 bring city sought to stream, limits further into the levy- bridge jurisdiction for tax more of within its city, against ing ruling purposes. the court said: * * * “ can never For obvious reasons there territory proposed be annexed to be in the house or sewer can no erected, street, sidewalk, child will ever live in this ever no constructed, be enjoy of the Co. the school facilities district that can Bridge city, city and all the can offer impose upon may it tax burden it return city following advantages will be the Bridge get:” will Co. claims city’s point considered the contention At that the court police protection. bridge gave It and that it to the fire bridge which the the amount such services held that negligible. It concluded: received was proposed property addition be in a “How can city pertinent injured including it within question, property in if the answer is that gives adapted proposed no is not addition desirability promise sites for resi- for use as buildings, warehouses, factories, mercantile dences, certainly city now, so uses, this or other inclusion within then its so, and can never city, subjection power city to the and its injury impose upon to it, taxes would be subjec- its us, would tell and as common sense value of reduce the market tion such taxes would certainly inclusion property such then included, so injury things would abe material it. to All of these here, exist hence we hold that in view the incon- any advantages siderable, if that could the and the result to city by property the inclusion of this it, glaringly inadequate, tages any, compensating if advan- property

that could result this in- subjection clusion of inclusion it, and the injury of it to taxation would be material right city pro- it, and hence the of the this to make posed extension of its is denied.” boundaries City In Barbe v. Charles, Lake 216 La 45 871, of reaching in 62, So2d said: court, conclusion, “* * * With reference to is annexation, what depends largely upon reasonable or unreasonable particular any given situation, facts in such as growth property that the is needed for the future police, sanitary protection. of and for or fire permitted solely It should the be never when for made purpose increasing of taxation the revenues city by this means.” Meridian, 243, 38 Forbes v. 86 Miss declared: 676, So * “* * Municipalities are not devised for the chiefly,

purpose solely, raising nor of revenue. The power extending corporate granted of is limits increasing purpose for resorted to alone of to be municipality, in income of the but order that government may benefits incident to civic be territory adjacent extended those resident municipality included in the extension; (cid:127)S if J *íS* J following

The taken from one the headnotes is City Reno, rel. v. 64 Nev 178 127, State ex Bibb warranto): (quo P2d 366 by city

“Complaint alleging annexation of Reno agricultural land to the financial loss protest over owners’ and that the owners and only, for tax revenue, needed annex lands

185 prohibit as the annexation of action to stated cause process.” being arbitrary of due and in violation following copied of the court: from the words is * “* * v. Glade ex rel. Walker Thus, State Civ.App., the court 286, 283, Tex. S.W.2d water, held: “ subject people properties to the of a ‘To municipal government which will share burden of none of its benefits supra unjust, Eidson, v. State would [76 L.R.A. 733], Tex. 13 S.W. unnecessary imposition burdens result in the the in State v. * * * injuries. great And stated as infliction [Tex.Civ.App.], S.W. Masterson, (of incorporation permit rela- [623], 631, “to attempted, lands) stand, case tors’ in this clearly a sanction that which is us to would be ’’ arbitrary, legal attempted un- act was fraud. Such of both. violative of the inhibitions reasonable, and * * * that “a Constitutions, and Federal State * * * property deprived person his shall not ’’ ’ process law. due without City Nolting of Overland, “A recent case Mo.Sup., farm 192 court held that S.W.2d 863. The platted lots or offered for sale town land not municipal purposes, could not needed for and not of cases. court cited a number annexed. The be very all hold fact similar to the The cases that on by attempted annexation is de- Reno, annexation nied. City 800, 177 Ark. Mead, of Pine Bluff v.

“In annexation and used 988, court denied S.W.2d the 7 applies language situation as to the Reno follows: “ present property in the much vacant ‘There is attempted city to taken much of that be limits; that unplatted and vacant.’ in Is language used the Indiana the “Likewise, Chicago Co., E. R. North v. in Judson court & appropriate. Ind.App. 326, 126 N.E. is 323, Annexation of farm lands was denied. The court said: aem * * surplus with of lots, the tracts, present farm lands within boundaries territory proposed town, which it to annex ” necessary.’ is not City (Mo App), Missouri Fields Zinc Co. Webb equity enjoin SW was suit de to city assessing levying municipal fendant from belonged taxes on three tracts 40-acre of land which people and which vote of the had attempted city. to annex used to the The tracts were mining attempts by for lead and zinc. Previous city annex had been held lower tracts Missouri unreasonable and, courts therefore, invalid. The decision said:

*“* * showing procedures There is no that the concerning passing elections, of ordinances, etc., layr were not all at times accordance with the apparent matters, such relative to that decisions court from time time trial solely ground plaintiff’s were based on the that city purposes, land unfit and ordinances city taking it within the limits were held to un- reasonable.” holding unlawful, the annexation the decision ruled: minds “To our the evidence fails to show any ground plaintiff’s to include

there is reasonable city land limits than to within other collect and further fails to revenue, show advantage, material other than the collection of plain- would accrue either the taxes, including corporate tiff such land limits city.” of said remanded the cause to the trial court “with

The court restraining enjoin- judgment and directions to render municipal or levying assessing the defendant from ing the lands.” taxes said against re- an action of Unger, 8 Iowa was

Morford property of some plevin personal to recover possession of Musca- the marshal the defendant, city which as to the city’s had under affixed seized warrant tine, the which expanded tax list. An act of the legislature farm had brought plaintiff’s limits Muscatine After the annexa- boundaries. city into expanded city land was taxed tion, $1.00 plaintiff’s his tax after and, He refused to per acre. pay review the action under destrained, had been property had been which brought. reversing judgment the decision said: defеndant, entered for the is, in this to considered case question “The Iowa, legislature approved the act whether ‘An to amend the act to 1856, entitled act July 14, is constitu- of Muscatine’ incorporate tional.” taxes itself which

Addressing specifically land, farm levied the plaintiff’s had been derive no possible found he could from which the court said: decision benefit, de- flagrant

“If such a and palpable there be . if it in the imposed; from burden equity, parture be others, or for for the benefit of purposes

imposed interest, are, have no objecting those in which contribute, it is no matter therefore, bound exercised —whether power form in what tax, regulation levy the unequal re- local government, the boundaries taxes, local unjustly party subjecting sults the prohibi- within coming regarded must be designed private constitution protect tion of made, however aggression, against rights recognized power whether under the color of or not.

'* * ^{[*] [*] [*]} city “The town, extension of the limits a or of enlargement, so as to include its actual mani- as by population, fested houses and to be a deemed legitimate legislative power. exercise An of indefi- nite or unreasonable so as to extension, embrace gov- lands and farms at a distance from the local upon authority. does ernment, not rest the same although may And be a as well delicate, as duty judiciary interpose, for the difficult, we strictly beyond have no doubt but are there limits legislative go. which the discretion cannot It is every injustice oppression every not case or of which may reached; and it is case not which judicial inquire will authorize a minute tribunal to into the operation imposing laws taxes, of or defin- jurisdictions. ing the of local boundaries The ex- authority, may tension the local limits of in greater necessary some cases be than is to include territory adjacent population, the city laid out into being presented, in lots, without case apply the courts would be called a nice scrutiny practical operation. or exact as to its It flagrant injustice palpable must be a case of wrong, amounting taking private property, to the compensation as without such return the tax- payer liberty equivalent is at to consider a fair for the tax.

"** ^[*] city part “* * * ^[*] Muscatine, it. He ^[*] His land does to be not desire situated deemed, too any lay far just it off into from sense, city farming but use it desires to as land. It lots, say protection by city that the afforded is idle to authority, privilege voting or the at the elec- just equivalent furnishes a for the tions, imposed upon city; burdens shape him the of taxes, attempt jurisdiction extend over regarded property, an at- must be him and his public private property tempt use, and for to take prohibitory clause of constitution.” within the deemed invalid. The annexation was City following from Deiman v. The is taken Fort 30 Iowa 542: Madison, plaintiffs’ lands are us “In case before they purposes; exclusively agricultural

used have for expenditures current benefited been expended city; money ever been no has improvements lands; on of said opened alley or no been worked street has ever except ‘Fort Madison with and is the street, Fifth which unites south and Franklin road’ on the * * * the lands are not needed for lands; of these city purposes; buildings, some other streets or city proper uninclosed, of and others are used the are the out-lots of

exclusively agricultural for territory purposes, showing the that not ali of any city pur- proper is needed for the within sought plaintiffs pose, be for the lands of are city solely brought jurisdiction of the within the increasing thereby purpose revenue, of owning taxing of others these lands for benefit city. plaintiffs property have not lands of the in the The they have in value since been enhanced corporate limits.” been within through decisions, to one of its earlier resort court, said: ‘* * * “ enlargement of bounda- while the whereby prop- corporation, municipal aof ries corporate brought erty within individuals is thereby subjected consent, their limits, without infringement may municipal not be an taxation, by taking private property of the constitution may operate public is such when extension it so use, territory lands and unreasonable, and embraces buildings population, but which

not needed for territory is which benefit taxed for the is occupied/ thus needed and and that ‘the will court municipal interfere to restrain taxation, where practicable, in eases in which it shown that the proprietor property taxed cannot bene- ” municipal point fited in a of view.’ Going on, the court ruled:

“* * * Upon principles settled in the cases appellees’ to, referred are not liable arewe clear that the lands municipal burden of taxation, and the decree of the district af court therefore firmed.”

The decision affirmed court, the decree the trial injunction. which awarded the Territory (Utah), Utah Daniels 5 LRA 444, judgment arose out aof which found the defendant guilty violating required listing statute legis property county of one’s with the assessor. The City had Moroni lature extended the boundaries of property to such an farm extent that included some reversing judgment owned the defendant. guilty, decision held: “* * * taxpayer property If are and his respect government so situated with the that it to palpable col- and clear that the use to which taxes applied will benefit then there him, lected are not support compensation tax. is not to the “* * * appears Inasmuch as it from the record and his in the case that the defendant resides that City, of Moroni indi- lands outside as are situated private improvements, by public be- cated yond or adjacent contiguous will district or such municipal expenditure, by the court be benefited holds Legislature power had no the Territorial subject property the taxation his to burden of to city.” corporate purpоses of the the for Ky Gains, v. Parkland Town facts following sufficiently indicated the are SW excerpt decision: from the taken "* ** city population land near the There is no taxing necessity appellee for him Gains, nor extending any reason for streets, or these build except government municipal land, over his the. ad and does not have

tax him. He cannot vantages town citizens of the that the benefits government, enjoy proper local from their power taxing attempt in this case, to exercise property taxing first private his if for be out, carried would making public constitutional use without compensation.” that'holding, explanation court

In added: * * “* approved ma- The ordinance was jority territory property within the entire vote, and, as the express provision act of the

was an payment bonds, Gains, of these made liable for the who owned the agricultural in the land included insisting territory town, addition to the last municipal purposes, for his land not taxed could be injunction against the collection of obtained appellee, other obtained Brown, tax, agri- ground injunction as all the that, his on exempt for the land from taxation cultural was purposes contemplated, of Park- the actual town compelled bear whole should land not legislative could have been the burden, as such intent.” foregoing cases the annexation

In all exception cases, with In all of the held unlawful. purpose supra, sole Arnold, of McCarroll annexing attempted was to enable annexation property. gain the annexed revenue from tax escape purpose a tax. was to case, the McCarroll purposes is means the no tax Annexation been de- which has annexation kind of unlawful 192 by

creed as city, void the courts. A seen, as we have community people and, therefore, annexations any way pur- which do pose not serve that fundamental are not sustained the courts. City Clayton, supra, many v.

Jones is one of in- extending city, stances which can be cited in which a boundary solely lines, embraced land devoted agricultural purposes. attempted The annexation met with condemnation of the court. See, Jones also, City Ferguson (Mo), 164 SW2d 112. v. Holt, Clark 218 Ark 237 SW2d 483, municipality, by strip resort to of land 50 feet wide long, sought and 3060 feet reach out and annex to community lay itself a which at the other end of the strip. The said: court purposes, practical gap “For all a half-mile proposed

will divide the old town from the addition ’’ contiguity lacking. and the essential lacking It found the “oneness” essential to a com- munity.

City Sugar Mo. v. Creek, Co., Standard Oil 163 Fed 2d was an action Standard Oil Com- pany against city declared to have invalid and enjoin city, lands annexation of made in- acquired by Company cluding an industrial site the Oil Sugar incorporated in Creek was in 1944. The virtually population that time had been Its since 1920. municipal including acrеs, 534 area was static. refinery upon stood Oil acres remaining per Company. acres cent the 334 Of Company purchased 90 In 1944 the Oil used. was ever purpose and announced a limits outside acres plant building an additional at a cost of the aldermen When became dollars. million several apprised Company’s purpose, they speedily of the Oil adopted city expanding ordinance limits as so newly purchased to include the haste, site. their unwittingly the aldermen included in the annexed area they far land more than had intended, thus added city right way, plant some railroad a water properties. validity and other The court determined the challenged exclusively upon of the annexation the basis city’s toas whether or action was reasonable. It declared:

*“* * The courts, however, will not undertake judgment city to substitute their for that of the they council and the electorate, will therefore not declare an annexation invalid unless the evi- convincing dence is to that reasonable men would have agree, scope, object, from the nature, need and results of the annexation, that action was un- ought reasonable and not to have taken.” been considering every suggested After reason that was justification attempted annexation, the court agreed judge with the trial that the annexation was invalid. It could conceive of for the xio valid reason injunction annexation, affirmed the which had been issued.

The above will suffice as a review of authorities. all ex cases, Of the above State rel. Bibb City Reno and v. Avon Park State were based quo in- actions warranto. Those decisions were they, cluded in the above review because like the other purpose decisions, held annexation for the sole phase That of taxation is unlawful. is case interest. of immediate employ contrary principles which

No decisions outcome of the above cases those which controlled my The above hold attention. decisions have come to property subject by nearby no that city is to annexation property possesses unless the attributes or features homogeneous part which will enable it to become a city upon present annexation. The must territory, property need more and the to be annexed city’s must be suitable to the needs. If it a farm when annexed and will remain a farm for an indefinite period proceedings annexation, after at- tempted to annex it will be condemned illegal. property If the is a where, riverbed course, no child annexation a school district lives, its clearly though annexation afford void, even will bridge opportunity the school tax a valuable district footings is which in the riverbed. The same has its city attempt a a true when similar made which is bridge. any consequence to renders no service of the unity fiat the does not sufficе. There law short, unity amal- interest and of service so that must be gamation the annexed area will the and between well as decisions, fact. The as occur a matter of for the it clear that annexation render sense, common unlawful. purpose of is taxation sole purpose ‍​‌‌‌​‌‌‌‌​‌‌​​​​​‌‌‌​​​‌​‌‌‌‌​​​‌‌‌​‌​‌​​‌​​​​​​‍city concedes, for the seen, the have As we sufficiency complaint, that determining of the ad- object taxation. It annexation was of the the sole wholly unpopulated. plaintiff’s land was that mits believing good that complaint reason affords city. non-contiguous unplatted to and is the land required analysis show that under is further No attempted reviewed, been have which authorities void. annexation reviewed in the are which decisions

Some invalidity holdings of their paragraphs base preceding statute. annexation local upon construction delegates state when hold Others power belongs to the state land, to annex implied delegation power condition of the that it shall be a exercised in reasonable manner. Those

decisions condemn annexations, such as the instant one, ground unjust arbitrary, on the that it and unreason- able. Still others hold that an annexation which cannot possibly be of benefit the annexed land, solely purposes, which was made for taxation is tanta- taking mount property compensa- to a without tion. specially concurring opinion

In this there exists no among need to make a selection those All theories. possess prefer three merit. I the last two. I am satis- Oregon fied § that when Article XI, Constitution, power adopt conferred the local residents amend charters of cities and towns, it was intended arbitrary delegation that no action would be taken. A power state’s local to the residents to make contemplates something annexations more is es- (1) greedy city, (2) nearby sential than valuable (3) majority tract of land, vote. I am, likewise, purpose satisfied that annexation for sole of taxa- § tion is violative I, of Article XI, and Article Oregon § 3, Constitution. imperfect compliance

An with a statute which organization corporation authorizes the a —munici- pal may in the formation a result otherwise — jure, distinguished corporation. facto, from a de de as rights performed won when an But are act is no law. An unlawful act confers no contravention to rights no one defense. When local resi- and affords property of another to their for annex dents purpose taxing it, their the unlawful —and sole— Every upon encountering illegal. court, it, action regardless of the form of the must hold action, it corporation. void. It cannot create a de facto declaring bring good that annexation must some thought to the annexed I no an- land, have that the nexation must confer the land a benefit which readily segregated can be and identified. The benefit may consist that the аnnexed land will fact general city. receive the of the services But in the demurrer admits no case, benefit, instant that suggested, just will received even of the kind be area. the annexed challenged unlawful,

The annexation was not powers city. I conclude but ultra vires also good complaint (1) suit; cause of that states (3) proper party-plaintiff; (2) was injunc- (4) necessary party; not a the state was right remedy. tion was the injunction Although was I that suit believe right remedy, agree with Justices Latourette I declaratory judgment would a suit for a that Tooze proper. also have been disposes It demurrer. The above belated sufficiently principles develops of law which also pre- controversy. govern which was evidence complaint the relief support warranted sented in sufficiently given. the annexa- showed It that was purposes. for tax made tion was party not made, An but has been assertion grant precludes relief laches case, that to the precluded relief have would it plaintiff and that quo had been filed. warranto an action if even P holds 136, 286 Weatherly 133 Or Hochfeld, pleaded. words are: Its exact must laches reason, for the a defense available not “Laches pleaded.” The answer among others, that

197 in the says case before us not ; one word about laches in fact, it consists of de- nothing but admissions and it nials; contains no affirmative Further, defense. appellant’s brief presents nothing concerning laches. The following, taken from the Subject Index, brief’s gives composite view of every contention upon which the city depends:

“Page “Statement of 1 Case of Proposition “First Law —The complaint does not state facts sufficient to constitute a cause of suit. 4 No. Point I—A at- private party may not tack the or of extension munici- fixing limits or bounds. 4 pal Point No. II —The grounds for relief set

forth in plaintiff’s are not complaint for judicial determination. 11 Point No. may inquire Ill — Courts not into

the motives legislative bodies. 26 No. Point inquire IV —Courts not into may the wisdom and justice legislation. 30 ‘‘Second Proposition Law —The reasonable

or unreasonable extension bounda- . ries under annexation Oregon statute a subject judicial inquiry. 35 No. Point basic I—The of Home principles Buie in a court from Oregon prevent setting any aside all of a mu- portion any ground annexation nicipal other than failure to with the comply the annexation statute. provisions Point No. II —The has Oregon legislature on

legislated the sub- fully clearly ject annexation therefore is not for the courts to insert a rule of reason into statute.

í i Third Federal con- Proposition of Law —The way

stitution is not violated change boundaries nor there municipal an a violation of due in- process through resulting in taxation from a change crease city boundaries. 48 of court “Fourth Law —The has Proposition no to set aside or declare void jurisdiction only annexation as to proceeding part of the area annexed. of Re-

“Fifth inclusion Proposition —The in the annexed area spondent’s property unreasonable. was not 63” “Conclusion. not included and is laches was not Thus, pleaded But city depends. the defenses among upon the has rendered city the seized that upon the point work $4,000 upon for approximately itself indebted annexing election. municipal which was done after the the city’s the amount of disclose The record does not the property since budget. However, plaintiff’s annual value of the appraised about two thirds constitutes lands], presumably and annexed the city [original lawful, annexation is declared will if the the plaintiff, time thirds from this on about two pay have to annexed, city the tax. Thus because year’s city every the only, plaintiff’s property taxation purposes for $4,000, a contract let hurriedly the taxes assessed thirds of have two pay forever will $4,000 was spent part Ño municipality. land. plaintiff’s election record, the annexation to the According 18, 1950, and on 1950, May February 10, was held in an effort apparent its charter amended city of the election. This the results the latter conform suit filed May 4,1950. Thereafter, city waited for more than a month before it filed answer but consisting admissions denials. nothing Surely, if a prompt decision of contested annexa- tion was material not city, would have post- than its answer for more a month. poned filing The cause was tried until 1950. September The decree was entered promptly 12, 1950. —October But the waited 8, 1950, until December before it notice of Its not filed in this gave brief was appeal. court until March recounting 1951. In those facts, I have no purpose censoring whatever of able attorneys who represent city, and mention them for the purpose has indicating never manifested indication whatever decision prompt rights parties was vital to it.

Prom the it must foregoing, that even apparent if the answer us to permitted laches, consider we would not hold that was plaintiff of undue guilty delay in or asserting its The truth protecting rights. is,

matter does record that indicate the plain- tiff ever intimation received that had let for in contract work the annexed area. I repeat, performed none that work was upon plaintiff’s I that believe acted property. with due in its asserting rights. diligence I said,

As have the evidence warrants the relief I in concur given. opinions written by and Tooze. Justices However, wherever Latourette reasons mine are their and not in I harmony, prefer I set out above. concur the ones in expressly the part opinion Justice which delineates Latourette’s that should be awarded by relief the decree. J.,

WARNER, SPECIALLY CONCURRING. majority I I in concur the result. also concur pro- opinion insofar as it that the annexation holds ceeding void an unreasonable exercise is as provi- legislative power vested in the under the Oregon specially 210, sions of ch. Laws 1949. gives concurring opinion Mr. elo- Justice Rossman quent support to conclusion. additional al., al. v. et matter,

In the et Veatch instant Miles apparent 905, 221 P2d P2d 189 Or authority application which is made opinion. majority will, continue however, case This possibly again used and to embarrass us be so until and overruled re-examined abused the future point employment in the on the which occasions its appropriately majority opinion limited, until it I think should be done. as propriety over the in the court arises

The division produce employed procedure plaintiff to waived in the lower however, was This, result. desired for that first and, raised here for the time and is court degree importance command the reason, should not dissenting presently If attach it. here which those I in the lower would court, raised it had been first compelled now follow the conclusions been have opinions. dissenting reached policy personal a matter of am, as I Reluctant my support solely practice, the result to rest majority opinion, achieved.by I instance find in this justifies excuses I which believe condition further concluding litigation my at time. part this this in thus majority court, all, if united on all-important proposition that ultimate attempted an unreasonable is void as ex- annexation powers on the conferred Estacada ercise ch. is this of accord 210, Oregon point Laws 1949. It my quali- in warrants which, my opinion, particularly fied our stated, concurrence in this matter. As above only differences are with reference to procedural pro- if None of us will priety. gainsay venture contro- were dismissed on the present appeal verted same matter point alone and the procedure eventually returned to us in due course war- quo ranto, we would not once as does the declare, again majority opinion, the entire annexation proceed- ing is void. no Here, public small im- question portance is involved. early Its solution is important not only to but every other property owner within the area extensive annexed. It is also important to the city of Estacada for, final determina- pending tion of the issues raised, municipal plans opera- in tions the new area must remain a state of sus- pension uncertainty. Nothing new can be brought back if to this this court case is now dismissed and later retried as a quo warranto. proceeding If we thereby compel would the plaintiff to resort to quo warranto and return here one or again two perhaps hence, it years would be to obtain the same judi- cial result which the majority opinion ac- presently cords. More than years two have already elapsed since the annexation was first voted.

Under the circumstances here present, justice demands a and final prompt response concerning illegality the instant legality annexation matter. delayed It should not be nor denied aby difference over what opinion proper legal vehicle to the court. convey problem I, therefore, join with my associates majority giving a present litigants answer to the now before us but without to their views on subscribing the propriety of plain- remedy proper effective or most tiff’s form of as the in matters in the future method achieve that end to like kind. of J., DISSENTING.

LUSK, opinion court I am concur in the unable to the law does that, it, the reason I view for question, private party under a to sanction suit present case, the in this such as are circumstances territory by municipality. validity annexation of complaint as one construed The court has statute, judgments brought declaratory I under the disagree. com- who drafted the counsel Neither sug- plaint have ever for defendant nor counsel proceeding. gested the nature of that this is in a brief: counsel said the court below equity.” They say proceeding in their “This is a brought equity suit in “Plaintiff brief this court: city prayed of Estacada that the court restrain power plant including plaintiff’s dam and within from purpose decree the taxation, boundaries for power plant void, dam and annexation city collection taxes assessment and restrain the thereon.” language complaint has suggest declaratory judgment tendency

slightest prayer: following proceeding from the “decree- attempted ing said annexation defendant that the pur- proceedings annexation and said said ported charter of defendant called the Estacada following are void as to the described Charter language may property.” Similar be found in real complaint brought every enjoin practically the en- alleged invalid or forcement of unconstitutional ordinance, it has not but heretofore been statute thought proceeding sufficient of itself convert the injunction from under one under the statute one may declaratory judgments conceded that act. It he justification glance at first some for the court’s view may he found in case v. Veatch, of Miles 189 Or 535, 220 P2d 221 P2d 905, the decision on unwilling which the court relies. I am to extend the authority present of that case. is an element here There authority bring found in not Miles v. Veatch. The declaratory judgment proceeding attacking á munici- pal § pro- annexation found in is 6-602, OCLA, vides: * * * “Any person rights, whose or status legal

other are relations affected a constitution, municipal statute, charter, ordinance, contract or may any question franchise construction or have determined validity arising under such instru municipal ment, constitution, statute, ordi charter, nance, contract or franchise and obtain a declara rights, legal tion of status or other relations there under.” provides: Section 6-601, OCLA, *“ * * any proceeding which involves the

validity municipal of a charter, ordinance or municipality franchise, affected shall be made a party, and shall bе entitled to be heard, if constitution, statute, charter, ordinance or franchise alleged attorney gen- is unconstitutional, to be copy eral the state shall also be served with a proceeding (Italics and be entitled to heard.” added.) complaint alleges attempted In this case the that the taking annexation and the new charter “constitute the private property just compensation, without process without due of law in violation of the Consti ’’ tution Oregon. of the United States of the State of copy attorney general with not served Certainly, requires. proceedings we statute as the attempted assuming that counsel are warranted declaratory judgments bring themselves within the they ignored one of its same time act and at the complaint one requirements. if we do treat the But, duty declaratory judgment, is to dis then it our for a comply with for failure of the miss the suit statutory requirement. v. Board Johnston this Adjustment, fact that 190 A 782. The Misc 15 NJ question without to be the constitutional the court holds point. my opinion, it is beside the While is, merit provision this held that have that two courts true directory, merely con courts which have most of the to serve the attor that the failure it have held sidered Declaratory ney general Borchard, was fatal. See Judgments cited in note 2. At cases ed, 275, 2d mandatory requirement not, is a this rate, whether certainly relevant on the it is failure to observe the question proceeding. This character particularly must resort the court true when convert what in order to the construction strained injunction simple, pure thought and parties suit, an was judgment complaint. declaratory v. Miles into a attorney general observed, it should be Veatch, represented himself and, course, defendants, papers all in case. with served was presently stated, this for reasons to be However, my major importance. question view, in not, declaratory equity in or for a a suit one this be Whether objection, only judgment, fundamental that question same. annexation, remains the state can appealed, and the sheriff have assessor The against concerned with the decree are and we city.

205 correctly following propositions I believe controversy. this the law governing state cannot corporation a de validity facto District rel. v. ex School attacked. State collaterally Pac. Northern 655; 172 P2d 441, 461, No. 179 Or 23, 781, 211 P Dist., 140, 159, Irr. 106 Or Day Co. v. J. Ry. v. Dist. Crystal cited; Tyree cases there and Oregon Trust v. P Bennett Co. 605; 126 Co., 251, 64 Or Imp. District 113 P School 333, 863; 58 Or Sengstacken, 1 Munici 98; McQuillin, 55 P District, 97, School Or 3.51; CJS, Municipal 3d ed 597, § pal Corporations Jur, 37 Am Cor 66; Municipal Corporations, § 13 ALR2d 1282. 649, 32; Annotation, porations, § District, District v. supra, School School proceeding mandamus which the defendant sought to raise the of the question legality creation or school district. organization After grounds which the stating defendant relied such claim, support court, speaking through Mr. Robert S. Bean, Justice said (34 Or 99): objections

“These in our are, oрinion, not avail- defendant, able to the because the law is well es- tablished corporate existence of a school or other district, public governmental corpora- tion, created and color organized under law, in the of its corporate exercise powers, cannot be in a attacked, except direct proceeding instituted state that purpose [citing Such cases]. are the mere creatures organizations of the and agents clothed state, with certain governmental their existence cannot be powers, called in ques- tion collateral in mere proceeding; ‘for,’ as said by Mr. Justice Clement v. Everest, Campbell, Mich. ‘it would be dangerous wrong the existence of permit municipalities to depend on the result of litigation. private Irregularities are common and in unavoidable the organization policy require such bodies, and both and law they except by shall disturbed some direct

process by very authorized and then law, ” grave reasons.’ toAs the distinction thus made between direct and approval collateral this case attack, is cited with v. State P Evans, 82 Or 140. 48, 160 Sengstacken, supra, Bennett Co. v. Trust was a against port enjoin suit the of a commissioners to the grounds, including issuance of on a bonds number of alleged invalidity authorizing the of the statute incorporation irregularities ports elec considering objections, tion. The after all court, through said Mr. Justice Burnett: by plaintiffs

“To reach the result desired court is asked to override the exercise of a political power gov a co-ordinate branch appointing having officers, and, ernment done these go still further and so, overturn in this proceeding proclamation the order collateral county County, court Coos tribunal specially to declare authorized the result of an confessedly power had election authority finally, order, and, to determine that positions had title the defendants no of com port. do missioners of We not conceive that equitable power the court extends so far. plaintiffs would determine the title to the If positions defendants, held recourse can be remedy provided by Section had to the L.O.L. * * *." quo statute] [8-804, OCLA, warranto Tyree ease was The doctrine this reiterated in Imp. again Crystal supra. Co., court, Dist. through speaking Mr. Justice after a ref- Burnett, case, the Bennett said: Trust Co. erence again principle established in the “The case lately Splonskofsky v. Minto, decided this

207 15). (126 reported Pac. in 62 560 court Or. the sheriff case tried to restrain by collecting had levied from taxes which been complaint high school district. This basis of the supposed in the there some defects was that were organization that, the court held district; but challenged by proceedings, the acts unless direct corporation of be attacked col- a de cannot facto by injunction latеrally ing principle [citing govern- cases]. The long permits as the State that, corporation carry on as such a de business facto validity in a institution, cannot be assailed proceeding private collateral instituted person.” enjoin private party

A suit the collec municipal ground corpo tion of taxes on the that the lawfully organized is ration was not a collateral attack. Ry. Day supra, Dist., Northern Pac. Co. v. Irr. J. Splonskofsky v. 62 155-163; Minto, 560, Or 570, 126 Sengstacken, supra; Tyree P Bennett Trust Co. v. 15; Crystal Imp. supra; op Co., McQuillin, v. Dist. cit., 599, City Angeles, CalApp § v. Los 42 3.52; Coe 183 479, of CalApp Trustees, P v. Board 109 822; Crowl 214, of Sage City 985; Plattsmouth, 292 P v. 48 Neb 558, of Townsend, v. Port 12 455; 67 Kuhn NW Wash 605, Rep LRA Am 41 P 29 50 923, 445, 911; St Frace v. Tacoma, 16 47 P 69, 219; Benn, Wash Gardner v. 81 City Emporia, P v. 435; Kan 105 Smith 442, 168 Saylor 211 P2d 13 ALR2d 187, 101, 1272; Kan v. Town Ky Biggerstaff 220 Wallins, 651, 993; 295 SW v. City Altus, 98, 114 Okla 243 P 751; Annotation, 13 jurisdictions ALR2d 1297. The cases from other all validity proceedings, of annexation involved point them a attack, in most of as in this case, plaintiff’s was that the lands were not benefited wrongfully and, therefore, the annexation were in cluded.

208 territory pro

Annexation of to a tanto organization municipality, a new and the rule respect equally applies with to collateral attack original incorporation. People as to the case of an ex Quisenberry rel. Ill NE Ann Ellis, v. 97 369, 697, 253 City 1913 A Ariz Phoenix, Cas v. 54 589; Skinner supra; 316, Townsend, 95 P2d v. 424; Kuhn Port Smith City Emporia, supra; supra; v. Tacoma, Frace v. City Dixon Bremerton, P2d Wash2d op. § 243; cit. 7.41. The from McQuillin, cases jurisdictions (1) (2) support other cited under foregoing. throughout Indeed, the numerous cases country deny right the the of attack collateral upon question an annexation because it seeks to the validity corporation necessarily proceed a de of facto People the said in rel. this view. As court ex supra, Quisenberry indispensable Ellis, v. “An element corporation territory, municipal is and an annexa of territory organization is to that extent a tion of new municipality.” City Emporia, supra, Again in Smith v. court quoted Atchison, v. from 77 Kan 176, 624, Chaves 93 P as follows:

“* * * alleged, It is tract true, legally was not jurisdiction but there annexed, undoubted mayor

in and council to make a legal by passage annexation anof ordinance. passed pur An ordinance been in fair has form enlarge porting city the boundaries of the question making part city, the addition in of the city exercising time has since that been authority municipal people over the addition and residing there. validity corporate “The of the existence of the originally organized, reorganized by or as ques- boundaries, of its cannot the extension be It has been held that the

tioned by private parties. to include new terri- limits corporate extension a re- statutory authority, is, effect, under tory, act annexation of the city; organization and is city, integrity involves the corporate validity and that attack; to collateral open than the other by cannot be questioned any party validity than can the original state more Kan Dwyer, city. Topeka organization * * * are there- 3 Ann 329. We 471, 78 P Cas whether the considering steps fore not warranted land into were the tract of bring] [taken objections not. The which the plaintiff legal in a direct proceeding makes can be considered At- the instance of the state at prosecuted attorney.” or county General torney stated in 62 65:§ The rule is thus CJS of all for annexation “Before completion steps certiorari lie will territory by municipality, citizen or to secure taxpayer at the instance of a after all but, annulment of irregular proceedings; mu- have been taken and the annexation steps over the territory exercises dominion nicipality certiorari is not a de facto capacity, at least then be must remedy, proceedings proper warranto.” tested quo must what rules are supported

The foregoing authority. weight decided to be the acknowledged out which, in pointed few jurisdictions There are a there 1289, ALB2d 1282 in the annotation in 13 that take the position These decisions. are opposing than a lower plane is on a of boundaries change of a the interest or that reorganization, corporate is taxation, from threat of owner, arising property suit. In some him maintain the enable sufficient judg from an annexation to the courts states appeal Russell See, e.g., City ment or ordinance provided. of Co., 60 Bridge 307, 249 v. Ironton-Russell Ky SW2d 210 City 45 871, 216La So2d Charles, Lake v. Barbe

628; City 243, 676; Miss 38 So Meridian, 86 v. Forbes 62; Chicago v. & E. Incorporated North Judson Town of arising App NE 126 323. Cases 550, 72 Ind Co., R. point. in course, not are, such statutes under they power have held that courts have some Further, a mu lands included within from taxation relieve receiving nicipality, therefrom, without, no benefits but municipal disturbing That is boundaries. however, City Skillin, v. 130 Florida. Sarasota in the rule strong dissent). (with however, If, Fla So 837 724, 178 liquor a tax lands which tax and not on license it is question can that the it is held involved, proceedings brought by quo in warranto determined attorney general. The Riviera Club the name City Fla So2d 721. Ormond, 401, The authority principle and on the of our own on Both court should follow mi I think the decisions nority rel. v. Port held in State ex Tilla view. We Ann 124 P Cas 637, 483, 1914C mook, 62 Or quo brought warranto, nature of in the an action proper § is a 8-804,OCLA, under name of the state validity reorganization proceeding test by changing port its boundaries so as to embrace a territory. said effect State ex rel. v. We new supra, against No. the rule District School legality upon of a de cor attack collateral facto applies poration to the consolidation of school districts. Ry. Day approved in Northern Pac. Co. v. J. And we following supra, Dist., statement of the law Irr. Municipal Corporations, § 151: McQuillin, from municipal corporation may “A exist de facto. * * general broadly doctrine has been thus may corporation legally per- a de stated that facto entity every perform, could form act which samе

211 corporation jure. Its existence and were it a de against against even all world, acts are valid except proceedings to arrest its the state usurpation in direct reputed power. a cor- where Hence, unchallenged acting poration is under forms law hy validity organization cannot of its state, parties, question by private can nor be drawn in collaterally attacked.” its existence'be recognized by again this court rule was This No. rel. District recent case of ex v. School State brought supra, proceeding on which was direct 23, validity challenge the of consoli- behalf of the state to stating after court, dation of school districts. There the “at least a de that the defendant school district was municipal corporation” “A and that de cor- facto poration, facto exempt quo from attack in is not however, brought directly against proceedings warranto private person,” the relation of a the State or held that from the facts before the court it was “clear relator, state, that the and not the is the interested party,” and that “The defendant school as district, corporation, against any a de can defend itself facto proceeding which can maintain.” he, individual, as absolutely annexation

Where, act of however, void, because not authorized law under color subject by anyone, it is to attack law, whenever validity questioned. and wherever its Illustrative exception Higginson, (Tex App) are v. Waco Civ attempted 1084, 226 in which the annexation SW was provision under charter in conflict with the state Stuckey, 121 law; Barton v. Okla P 226, 248 where 592, annexing territory the ordinance showed on its face passed application that it was without the consent or required by People of the owners statute; NE Hausen, Ill which annexation attempted pursuant provision ato charter repealed by general had been act. Other like cases page are collected in the annotation in 13 ALR2d at 1292. The rule is well stated the United States District Court for the Western of District Oklahoma Development City, in Inland Co. v. Oklahoma 9 Okla., Supp F 96, as follows: *

“* * when sufficient facts exist to confer authority jurisdiction municipality on a to an- territory, nex and there has been a substantial com- pliance provisions relating with the of the statute validity annexing thereto, the of an ordinance such territory pro- cannot be attacked in a collateral ceeding by reason of defects, informalities, or ir- ’’ regularities ‍​‌‌‌​‌‌‌‌​‌‌​​​​​‌‌‌​​​‌​‌‌‌‌​​​‌‌‌​‌​‌​​‌​​​​​​‍passage. in its possible exception, With one all the cases cited opinion authority propriety the court as for the injunction validity of an suit to test the of annexation proceedings typical examples exception are to against the rule collateral attack, none of them in any way properly conflicts with that rule when it is understood. Thurber v. McMinnville, 63 Or 410, 128 City Cottage P 43; Landess v. Grove, 64 155, 129 Or P v. 537; Marvin, Couch 67 Or 136 P 341, 6, are municipalities attempted cases in which the to annex territory giving without to the voters the annexed territory opportunity reject approve proposal, contrary to the law of this state. In the similar case of Cooke v. Portland, 69 P 572, Or holding the reasons the annexation void page were summarized Mr. Justice Burnett at as follows: against

“In brief, as and others in situation, like the election was void because no given. part notice of the same was On legal it was void because the voters thereof express opportunity on the their wishes had no subject. parties void because, was to both As analysis, to an it amounted to its final worked out City Portland of the charter amendment entirely living its boundaries.” those without give respect the court notice failure With said: * * “* opportunity heard, to be very previous notice, is es-

in its nature involves sentially jurisdictional it is in its character where property proposed to visit the ing of an individual or to take the this, it additional burdens. Without analogous to tak- action council process property without due involved law.”

Finally, Spence Watson, 182 Or 186 P2d permitted in a attack was case 785, collateral where mandatory provision a had failed to follow of the per requiring petition a the from fifteen cent statute property real in the area of the resident owners of sought an be before election could be called. annexed juris- petition such a no The court that without held the council to act. diction was conferred on Oregon should be noticed. Leach other cases Some Tillamook, 124 P 345, 642, 62 v. Port Or of companion rel. Port Tillamook, ex case to State of enjoin by taxpayers supra. It was a suit collec- by Tillamook on the taxes Port of same tion of quo urged ground warranto action as that namely, reorganization brought that the state, territory taking port additional was void of the authorizing it. For no statute this there was because prevail. plaintiffs held entitled to were This reason the exception of to the a clear illustration rule case is against attack. collateral

214

In v. McNutt, Witham 186 Or 208 P2d 668, 459, taxpayers brought enjoin public a suit to officials from certifying city Eugene. an annexation to the Under required such statute certificate was before the an- pro- nexation would Various effected. defects ceedings they were but claimed, we held that did not reorganization. question plain- invalidate No right tiff’s to sue was raised or discussed. However, clearly a it was case in there was not even a corporation, de step because the final essential facto against had not rule taken, been and the collateral at- applicable. tack, therefore, was not Quo See CJS, City City § Warranto, 197, 13; Anaheim v. Fuller- CalApp ton, 102 227 P2d 395, 494. Springfield, In McBee v. Town 58 Or 459, plaintiff, P seeking claim 637, the made to en- join the taxes, collеction was that the law author- izing the annexation was void. This claim was not sus- injunction tained, was denied. Had the law been proper held invalid it have been would case for collateral attack. Day v. Salem, 65 P 1028, Or Ann Cas enjoin

1915A suit to collection of taxes, grounds objection part property were that belonged annexed state and that the votes territory by per cast in the to be annexed were cast objections who were residents. These sons were question considered held to be without merit. No right respecting to maintain such though a suit raised in was this case. even And, the de they alleged, fects had been were established, not such jurisdiction municipality as to affect carry proceedings, out the annexation the case cannot regarded precedent sustaining right as a of col lateral attack. able to there is ascertain, far as I have been

So directly- question Oregon was which, no case when the presented passed upon, at- holds that collateral validity by private on of a de tack a suitor facto permissible. municipal corporation Such an attack is wholly proceeding only allowed when has been authority of taken law either because without void, juris- requirement of law essential or because some is cases of this sort there not diction was omitted. In corporation; the annexation, where even a de facto nullity. simply is a involved, that is argument, purpose of it be assumed for the If, declaratory judg- proceeding is this a under is act the rule is no different. That act a valuable ments unduly procedural I not re- device use would whose But it not in- strict construction. I think that was steadily repeal policy did ad- to, not, tended exemplified by to in this state and the decisions of hered only in a this the state direct cited, court herein validity inquire proceeding of a into the de can facto corporation. Borchard indi- No as Professor doubt, opinion passage quoted of the court, in a in the cates advantage escap- declaratory judgment “the has quo ing warrantoBor- some of the restriction of my Declaratory Judgments 2d 362. But, ed ehard, employed opinion, not be should cannot and private attack collateral suitor case where proceeding, private form of suitor in some other injunction, This is not be countenanced. such as would where that, doctrine the essence of the because it is of may prohibited, state chal- collateral attack validity corporation. lenge support in the decisions. This without view striking supra, City affords Phoenix, Skinner must be the line of demarcation illustration declaratory judgment proceeding drawn. That was a brought validity to determine the of an annexation. ground One of attack was that the statute which under proceedings the were taken was unconstitutional. As to this the court said: “If the statute is unconstitu- proceedings all the tional, taken thereunder are void jurisdiction.” for lack of Therefore, it would deter- question. objection mine that Another that was cer- provisions complied tain had statute not been As to with. this the court held that it was a collateral question attack, the state could raise the by quo declaratory judgments warranto, changed act had not the situation. Birmingham, Phillips Bar Ass’n v. Marsh, & declaratory judgment proceeding 650, 196

Ala So 725, brought to determine whether certain individuals corporations engaged in the insurance business unlawfully practicing were An law. Alabama statute the use of an information in extended the nature of quo legal pro to cases of intrusion warranto into the Referring to fession. this statute the court said: right statute has “Our to institute extended security proceeding person giving to a such But, costs the action. in such the action case, prerogative brought still of the in the name character, person, State, on relation such who joint party giving becomes with the State. security for the costs of action con- upon permitted dition the relator is sue security, in the name of State. such Without usurps authority parte he State. Ex Talley, 271.” 238 Ala. 192 So. said: The court further policy indicated, it is law of “As proceedings

Alabama that such should be had in State, the name of and instituted in the manner designated by statute. partes with private inter action “To sanction repeal operate a virtual objective would the same quo statute. warranto be- reasons elaborate need not “We proceedings requiring policy such is public hind the easy to visual- It State. in the name legal profession good to the come could ize that no litigation by private world insurance or to the invading party charges other with one wherein counters service, and other field his exclusive with him attempt charge oust to invade and a enterprise. private field of his lawful from Declaratory Judgment never Law was “The policy public involved. to strike down intended rely upon line of our no occasion to is Hence, there adequate application denying other where cases remedy available.” is Gwynne again question v. Board arose The involving NE a case 353, 191, NY 181

Education, 259 legality of school districts. aof consolidation declaratory judgment brought plaintiff action, a question upon discuss the called court was subject corporation was existence of the whether claiming to be an individual attack to collateral period been aggrieved. of user had held that It was and the franchise, establish a de too short facto proceeding right was plaintiff’s maintain the sustained. authority

All for the are of these decisions three against collateral attack proposition that the rule declaratory judgment way a modified where in no form of suit such other proceeding, of some instead attack. injunction, means to as the is resorted any way inconsistent with School view Nor is this 554, No. 148 Or District No. 1 v. School District Boundary Tompkins v. District 873, and P2d 37 In the former 416. 177 P2d 339, 344, Board, 180 Or of these cases, the school district attacked validity of a consolidation with the defendant upon ground school district that the election question held was in the latter district. The question court held that this could be determined in declaratory judgment proceeding, a and that the at tempted consolidation was void. The omission to hold an election in one of the districts was said to be ‘‘ ’’ jurisdictional Tompkins defect. 148 Or 573. In the declaratory judgment proceeding case brought, right bring and the it affirmed, to determine whether permitting a statute the withdrawal of a school district high from a union school district was unconstitutional. by injunction In both of these cases collateral attack permissible, would have been for in neither had de status been attained, case one because of facto a jurisdictional defect and in the other because, where corporation attempted the law under to be formed is unconstitutional, there can be no de facto corporation. Webb, Brown P 526, 530, Or 387; State v. Several Land, Parcels 78 Neb 703, Cyc Corp perm §§ 601; Fletcher, NW ed, 3790, 3791. Clatsop

As to Webb Co. School Dist. 188 Or v. 3, declaratory judgment 324, 215 P2d other 368, the case say relied on it court, is sufficient to that it appear does not in the record that the consolidated plaintiffs challenged school district which the had ac- tually achieved de status-—the consolidation elec- facto May tion held 2, 1949, was and suit filed 10, June question in 1949—and event the here debated was passed upon not raised or the court. supra, ex rel. v. District No. State School 23, “Municipal organized 456, we bodies

179 Or said: imperfect compliance they with a statute under which jure could have achieved a de but status, which exer- they imperfectly good powers eised faith municipal corpora- recognized are as de secured, facto § Municipal Corporations, ed., 175, 2d tions McQuillin, : p. § Districts, 254, and 90.” C.J., and 56 Schools School city reorganized of Estacada this definition the Under corporation As user is at least de facto. corporate powers, the evidence discloses that spent of a water has on the construction $4,000 some territory improved and the road main the annexed planned leading through extend it, plant plaintiff’s but dis- electric road far as the the suit commenced. the work when continued dealing with a void annexation. We are not here done the coun- law, What was done was valid under jurisdiction question had to submit the cil Oregon 1949), (Ch Laws did the voters go, far as in this case there it, and, submit so the issues irregularities proceedings in the what- are no defects or only ground complaint The is that coun- soever. authority cil the voters exercised their undoubted unreasonably by including territory in the annexed becoming property no benefit from which could derive jurisdic- part municipаlity. This is not want of jurisdiction. erroneous exercise tion, but of a here strikes “at the correctness wisdom attack * * * [electorate] has made decision which indubitably jurisdiction ex after conferred.” State question, I Evans, think, 56. That kind rel. v. 82 Or collaterally enjoin in a suit to raised cannot be of taxes. collection Day Irrigation supra; case, State District

The John supra; Tillamook, State ex rel. v. Port ex rel. v. supra; Evans, and State District No. School authority private party right supra, all are state, action on behalf of relator, to maintain quo brought directly ques in the nature warranto legality corporation public § tion the of a under 8-804, OCLA. In such a case the relator is deemed a co- § duty with state, 8-806, it is the OCLA; prosecuting attorney to commence the action, private party give satisfactory security and the must indemnify against to the state to costs and ex penses may thereby, § be incurred 8-807, OCLA. See rel. v. State ex School District 9, 148 No. Or 273, 31 P2d P2d 751, 36 ex rel. v. 179; Cook, State 377, Or 65 P ex rel. 89; Stevens, State 44 P Or 898. In my opinion, remedy afforded statute is, this, ease like exclusive. foregoing

For the I reasons dissent. say Bay Mr. Justice authorizes me to that he con- foregoing opinion. curs in the BRAND, C. J., DISSENTING. join opinion

I I dissent. in the of Mr. Justice Lusk duplicate and shall not able discussion of the au- appears opinion. thorities which in his pro authorities, the welter of we con, are danger overlooking public policy the reasons of which underlie statutes decisions relative to the validity methods which annexations to cities may plain- We will first tested. consider what aggrieved by being proposed tiff, annexation, had right protection do in the interests. his It is undisputed attempted that the annexation was under- pursuant Oregon Chapter taken Laws of 1949. required give Under that statute the was notice by pub- weeks, for four successive both election by posting. plaintiff was lication and therefore fully concerning proposed annexation be- advised February election, fore the held on 10 1950. legislative body same statute, Under the such, proclaim city required an- of was Estacada by proper “which will order or ordinance nexation a city The recorder of the create an official record.” copy city required a then to transmit certified was Secretary of to the Under of such order State. only upon complete becomes annexation statute, required filing with Secre- instruments tary plaintiff I clear that of State. think injunction might brought to restrain have a for suit Secretary filing of with the State the recorder from Although may of the election. there certification authority point, I think it is be a on the conflict by might sought, have also clear that declaratory judgment prior proper proceeding, remedy Secretary filing with the of State. The open no it at that time involved collateral which was any Any public corporation. de facto attack rights plaintiff had have been asserted which the could proceeding. adjudicated in such necessarily the results

We will next consider which actually procedure adopted by the from the follow plaintiff. undisputed suit, evidence in this which The major- injunction, brought but as one was ity declaratory judgment, be for a shows considers to city purported Esta- annexation, the that since the put water main in the in 2300 feet of new cada has and has done $4000, area at cost over annexation through improvement the road down work on “a lot ’’ territory. The evidence also shows this new annexed improvements but were intended were that further plaintiff. filed the suit when was discontinued following purported shows The record also city proceeded an election for the with annexation the city, enlarged as adoption a new charter for legislative February 1950. of 10 the election procedure charter of the established no for the adoption any of a charter new the voters was nor provision such prior made in charter amendment adoption to the of the Estacada charter of 1950 which adopted by enlarged by the voters proceedings. the annexation We must assume that the pursuant powers new charter was enacted to the vested every municipality special “local, as to and munic- ipal legislation, every character, or for their * * respective municipalities Constitution of Oregon, § Article la. IV, The new on file charter is Supreme Library. accomplished in the Court It no an- territory. merely purported adopt nexation of It entirely city, enlarged by new charter for the as previous procedure. apparent annexation It is that the preparation following of the new charter the annexa- proceedings, by city tion its consideration council, publication required and the election, notices of consumed must have most the time from the date proceedings filing plain- the annexation until the May tiff’s suit herein. The suit on 4 was filed May adopted and the charter amendment was on supplemental complaint 1950, after which the herein proclaiming adoption was filed. The resolution the charter of in 1950 shows that votes cast including portion, area, entire the annexed were counted segregation. without majority opinion suggested

In the is it mains in the construction water annexed area imme- diately following the annexation election was done authorizing § OCLA, 114-121, under a statute, cities corporate to furnish water outside of their limits. This plain is a tortured construction evidence. Further- concerning more, the evidence the road work done concerning prepara- area and the facts the annexed undisputed. tion charter On what of the new are authority majority say that evidence does by municipal city functions in the exercise of its ’ ? what other annexed was And area “inadmissible’ de status be established? It method could facto actively engaged apparent that this little municipal pur- over the functions the exercise of portedly area and such annexed exercise money, expended contracts, must entered into have necessary preliminary steps all of the and have taken to the voters of the 1950 charter. for the submission exhaustively examined Mr. the authorities Under city of it is clear that the Estacada, Justice Lusk enlarged by proceedings, was a the annexation de corporation. facto quo rule which makes warranto

The reason apparent. remedy in this the exclusive cases of ldnd party permitted private to take action A should not be retroactively will official action invalidate complete it could have obtained relief when anyone. hardship at an time without earlier bringing private suit will be the result of the of this attempted Thus, annexation. invalidation of entire litigant permitted private a will be to assume the expressly in the state under the function which vested dealing quo statute. We are not with mere warranto may adopted rejected procedure or rules of be public policy option of the court. at statutory expressed form and the de- state has been quo held that warranto court which have cisions of this upon only attack available means of collateral is the necessary corporation merely constitute a de facto statutory plaintiff policy. application If the position city prevails then in what will the suit, in this money expended ? itself ? Who will be liable for the find city Will some contractor lose because he cannot sue the improvement under an offi- contract, will the required pay expenses cials be all of the incurred public improvements preparation in the and in the and people? submission of the charter amendment to the unnecessary It is to decide where the loss fall, will private but fall it all will, and because the enjoined filing who could have of the certificate Secretary with State saw fit to wait until damage was done. involving municipality a

This is little ease a small with 150 or 200 as indicated in resolu- voters, adopting tion the 1950 a charter. But it is case with big implications private taxpayer in the a law. If can retroactively municipal invalidate annexation after expended, four or five thousand dollars been have then he could do it another case when a hundred expended, dollars had been thousand and he could do watching sitting it after tak- officials ing might bankrupt the action which them or the city they represent. agree upon

I with all of the members court point. proper by proper party- one In a taken action, plaintiff, proper purported aat time, annexation entirety. But, held if should be void this kind brought can of action be in this can be case, also brought grounds grounds when untenable or no exist municipalities for the be invalidation, can hounded against compelled to defend themselves suits brought private too at individual whim of a late litigant. purpose preventing very was for It this type litigation quo warranto statutes were provisions in this state. OCLA, enacted Under may § action in the 8-804, the maintained name party, private the state the relation of but “The actions for in this shall be provided chapter commenced and prosecuted by attor- prosecuting * * *.” ney OCLA, merely relator §8-806. verifies the in behalf of the “as if he pleadings state * * were plaintiff in the action *.” OCLA, 8-806. If the relator has an interest in the § question he “shall be deemed a with the state.” co-plaintiff 8-806. OCLA, Under of 8- OCLA, the provisions § § 807, it is made the of duty attorney prosecuting commence such action in every case interest public has “whenever he reason to a believe that cause of action exists can be and also for like proven, reasons in ease of private interest every satisfactory security given the state indemnify it against the costs and that expenses may be incurred thereby.” OCLA, 8-807. These sections § statute contemplate brought for the proceedings pur- pose or testing incorporation enlargement a should be under municipal corporation control acting state its district It through attorney. would be interest these inquire why precautions were legislature for the adopted protection de facto when attacked in corporations the conven- tional manner warranto if the by quo identical relief sought could be obtained for suit injunction under the sole of a declaratory judgment control In private litigant. determining given whether pro- cedure is this court should not be influ- appropriate, enced fact it has decided advance who to win. If then ought the'procedure adopted correct, it is as to regardless question correct whether win or the defendant is entitled to on the merits. ex rel. v. District No. State School 179 Or

441, 172 P2d action was the state brought by adjudi- seeking private person an of a the relation consolidating dis- several school order an

cation that 14 June entered on The order was tricts invalid. was Septem- July In 1945. effective on and became pursuant held, been an which had to election ber, adopted and bonds, for the sale of resolution was suc- to the the bonds were awarded on 19 November whereupon quo action in warranto bidder, cessful seeking adjudication the district that was instituted an seeking injunction invalidly organized re- an delivery straining been case has of the bonds. The dissenting opinion by Mr. Justice reviewed in the appropriate is to mention here that Lusk, but it corporation, it at least facto district was de quo proceedings, exempt from but was not warranto that:

“* * * necessarily every it does follow that person chooses to denominate himself a relator who challenge validity munici- of a who seeks administering public pal body affairs, engaged which liberty his select is at own time * * *” launching the attack. opinion this Mr. Justice learned Rossman, court said: * * “* seeking avail him- a relator is When extraordinary remedy, the courts self such justified application viewing scru- his with are eyes, especially appears

tinizing de- if it serving is attacked is fendant whose office compensation.” public without interests approval quoted ex then from State court with App 72 SW 471 99 Mo Mansfield, rel. Jackson follows: as “ * * every state, think We interest security peace, person public such as the payment city’s

property would and the debts impaired promoted setting rather than aside incorporation leaving at late this date and organization, the citizens without administration ” privileges.’ corporate Again quote: we “* * * Nowhere it averred that the state displayed any pro- has interest whatever in this ceeding questions or in the and claims present. appears relator seeks the far So from

agreed statement of facts, state is satisfied with the defendant school district and does not challenge validity. Again, returning to the agreed following: statement of we find the facts, judgment against relator ‘The demands the de- * * fendants the *.’ Thus, is the and not relator, state, which seeks to blot out the defendant school district and throw into a condition of chaos the schools of that

large area.” pointed year passed The court “a scant out that entry filing from the of the consolidation order to the proceeding” explanation of this and that no delay given. had been It called attention to the de- plorable adjudication results which would follow an invalidity at that late date said:

“* * * anyone judgment When asks for a at- deplorable consequences, tendant with such he *” * * explain delay. prepared should come to his pointed The court out that the School District as corporation against any de facto could defend itself proceeding plaintiff which the as an individual could quo pro- maintain. It then held in that even warranto ceedings plaintiff by was barred laches. though essence of

The this recent case is that even quo brought, an action the nature of was warranto private proceeding it so much of a savored that the pass concerning court refused the issues 228 good

legality If this law was of the consolidation. quo I how case, was, think then warranto adopt suit a more rule when this can this court lenient brought by private party even without any participation state, therein semblance of sought protection of is the and where the relief territory portion annexed owned that plaintiff. v. District, District 34 Or School School brought against No. 115 Dis-

P mandamus 98, District purposes not which need be described here. trict for existing was The defense reciting corporation. After conten- defendant’s Bean for this said: Mr. Bobekt S. court tions, Justice objections opinion, our “These not avail- are, defendant, able because law is well estab- corporate existence of a dis- lished that school public governmental corporation, other trict, or organized under color and in law, created and powers, corporate of its cannot be at- the exercise tacked, except proceeding in a instituted direct ** *” purpose. the state quoted approval then with from Clement court Mich follows: Everest, “ ** wrong dangerous it would be municipalities depend permit the result of on existence of litigation. Irregularities private are organization in the common and unavoidable policy require that both and bodies, such and law except they direct some be disturbed shall not very process then and law, authorized * * * ” grave reasons. 273, 9, 148 No. Or ex rel. v. School District State proceedings quo P2d warranto 179, 31 P2d 751, private party. upon brought of a relation were approval ok, 39 ex rel. v. Co with State court cited 89, 65 P to 877, Or the effect that whether an action brought prosecuting on the information of at- “ torney private party or on a the relation of ‘in duty prosecuting either it is made case, attorney prosecute commence to the action’.” (Italics mine.) pointed The court then out it that was the intention of the statute: *“* ^[*] to confer upon private persons right

to have their interests determined the court attorney whenever the district has reason to be proved, lieve that a cause of action exists and can be required indemnity given, and the has been and, duty in such case, to make the district attorney prosecute to commence and the action to * * *" a final determination In School Dist. 1No. 45, School Dist. No. quoted approval 554, Or 37 P2d this court with 873, Independent from State v. Consolidated School Dis- trict, 193 Iowa 186 NW follows: “ knowledge full ‘With relators remained silent permitted organization of the district; wit- following

nessed the annual election in the March; inauguration system; allowed the of a central school entering knew board directors was into being with contracts levied teachers and that taxes were upon property district, entire finally upon leave of court to commence this cause of action. A day a issue bond was voted asked recognition right under the such circumstances ’ ’’ injury irreparable would cause district. involving laches, If the issue is to be considered one lapse recognize then we should that mere of time bringing delay a suit is which essence. It injury works another will relief bar liti- gant. acting If their officials are detriment in reli- annexation, ance the existence of a valid then delay period might well short bar an action. If city, lapse being by the mere taken action is

no many might See Mc not laches. constitute months 144; 213 P2d Norman, 137, v. 205 P2d Iver 187 Or City 164 P2d 434. Or Holman, Pendleton though isit however, laches, not issue, essential The during point is, doctrine. The that to that related delay bringing suit, in the defendant exercising aggressively promptly its cor acted porate action thus taken was functions, and that the enlarged a constitute the of such a nature toas municipal corporation. facto de argued any person threatened with sub- It is that injury by void act of the enforcement stantial by right protect municipality himself has injunction, law holds that I find no rule of which but remedy injunction proper in all cases. Beme- is a an in the at time and manner dies must be enforced orderly system procedure by provided if an statute may maintained. It observed further that is to be be municipal of this authorities involved in cases acts of by corporation, de are void if done facto kind an are action until such acts declared void unless and there is no rule of law Furthermore state. injunction provides or a for a that suit suit may brought by judgment party declaratory one right alone, statute, to relief is vested when, parties, the relator and state. It two declaratory this reason we cannot construe the covering judgment bar. statute as case at This pleadings on the is not here alone. It case was tried Undisputed presented evidence the merits. was on being against proving the attack Avas made a de duty corporation. It then became the facto court applicable apply rules such cases. requires complaint matter notice. other One alleges purpose that the annexation for the sole subjecting plaintiff’s property annexation allegations without benefit. These are denied upon The the answer. case was tried the merits. In concurring opinion Mr. it is said Justice Rossman foregoing that we must assume that admits allegation complaint, us but the issue before upon complaint. does not arise a demurrer to the "We testimony are to determine on entire record remedy adopted appropriate whether the to the relief ‍​‌‌‌​‌‌‌‌​‌‌​​​​​‌‌‌​​​‌​‌‌‌‌​​​‌‌‌​‌​‌​​‌​​​​​​‍sought. alleges complaint adoption The itself enlarged city. the new charter for the area undisputed evidence discloses that inwas municipal active exercise functions. If the pleadings and evidence show this to be an attack upon corporation, they a de facto Ias think then do, duty apply it is our the law as we find it. provides may

The statute action at law in the maintained name of the state in- prosecuting attorney formation or on the re- private party persons lation of a when number of corporation being duly incorporated. act as a without charged § OCLA, 8-804. The defendants are with act- ing corporation, having as a the boundaries which re- very sulted from the annexation election, city, acting, essence of the case is that as thus was duly incorporated. When enacted this statute remedy kind. considered exclusive in eases of this majority Our decisions have held. The so result surplusage decision to render the statute mere apply. a wide field to which it has been held to Hard cases make bad I law, this think is such a case. say

I am authorized to that Mr. Justice Lusk and Hay join opinion. Mr. Justice this

Case Details

Case Name: Portland General Electric Co. v. City of Estacada

Court Name: Oregon Supreme Court

Date Published: Mar 5, 1952

Citation: 241 P.2d 1129

Court Abbreviation: Or.