| Or. | Jun 29, 1915
Lead Opinion
delivered the opinion of the court.
The pleadings admit, and the evidence shows, that the district improvement company was organized prior to the irrigation district, and the articles of incorporation and notice provided by Chapter 172 were recorded in the office of the county clerk before any action was taken by the irrigation district. The defendants rely upon the defense that plaintiff is estopped from denying that' his land is included within the irrigation district, and from denying that he is obligated by reason of the fact that confirmation proceedings have been had by the irrigation district. This states in brief the issues involved upon this appeal. Several errors are assigned, but all may be considered in one group; the nature of the assignments being that a decision should have been rendered in favor of the defendants instead of plaintiff.
“And it is also understood and agreed that in determining the acreage entitled to water from said system at the date hereof the northeast quarter of section 16 in township 16 south, range 47 east, has not been included, and if said lands remain in the district, then the first party shall be entitled to bonds at the rate aforesaid for said land, the same to be delivered on October 1, 1912, and in that event the amo'unt of bonds to be placed in escrow shall be reduced accordingly.”
It is perhaps necessary to consider the objects and purposes of the irrigation district and the district improvement laws. The irrigation law was enacted in 1895 (see Gen. Laws 1895, p. 13, Section 6167 et seq., L. O. L.), the title thereof being as follows:
“To provide for the organization and government of irrigation districts, and to provide for the acquisition of water and other property and for the distribution of water thereby for irrigation purposes, and for other and similar purposes.”
The title of the district improvement law of 1911 is as follows:
“To enable land owners to incorporate themselves for the purpose of irrigation or drainage, defining their*610 corporate powers, regulating the manner of issuing bonds, making the debts of said corporation a lien on the land of said owners and fixing the organization and annual license fees of such corporations.”
The irrigation district law also has a provision for drainage. The object and purpose of the two acts are apparently the same, that of improving the arid lands of the state. The essential difference between the two organizations is that in the district improvement law the inclusion of land in the first instance is entirely voluntary, whereas in the irrigation district law, 50 or a majority of the voters qualified by law to vote at an irrigation election may include therein the land of the remaining land owners against their will, provided the land is not legally entitled to be excluded. The irrigation districts under the act governing their organization are public corporations, and by the amendatory act of 1915 are designated as municipal subdivisions of the state having the power of self-government and control in all matters pertaining to the general purpose for which they are organized. District improvement companies are also qiiasi-public corporations. It is a general rule of statutory construction that a legislative act shall be so construed as to make the same operative and carry out the purposes indicated by the lawmakers. Both of these acts should be so interpreted, having due regard to all the provisions thereof, in order to give them full" force and effect: Wilder v. Board of Directors, 55 Colo. 363" court="Colo." date_filed="1913-06-02" href="https://app.midpage.ai/document/wilder-v-south-side-irrigation-district-6565912?utm_source=webapp" opinion_id="6565912">55 Colo. 363 (135 Pac. 461, 463).
The irrigation district law (Section 6167, L. O. L., as amended Laws 1911, p. 378), in so far as it is deemed material to this case, provides that whenever 50 or a majority of the holders of title to lands susceptible of irrigation from common or combined'sources and by the same system of works desire to provide for the irrigation of the same, they may propose the organization of an irrigation district. Section 6168 directs that for the purpose of organizing such a district a petition shall be presented to the County Court setting forth and particularly describing the boundaries of the proposed irrigation district, and stating the purpose. It requires the petitioners to furnish a bond for costs in case the organization is not effected; requires the publication thereof, and directs that on a final hearing the County Court—
“may make such changes in the proposed boundaries as the court may find proper, and shall establish and define such boundaries; provided, that no land included within the limits of any city or town shall be included in any irrigation district; that said court shall not modify said boundaries so as to except from the operation of this act any territory within the bound*612 aries of the district proposed by said petitioners which is susceptible of irrigation by the same system of works applicable to other lands in such proposed district, nor shall any lands which will not, in the judgment of said court, be benefited by irrigation • by said system, be included within such district. ’ ’
The section further provides that any person whose lands are susceptible of irrigation from the same sources may, in the discretion of the court, upon written application, have his lands included in the district. On final hearing the court shall make and enter an order determining whether the requisite number of owners of the land within such proposed district shall have petitioned for the formation thereof, and whether the petition and notice of the time of presentation thereof shall have been duly published, and said order shall be.conclusive evidence of the facts found by the court. The act then makes provision for dividing the district into divisions for the purpose of elections; provides in detail the manner of elections; authorizes the formation of a general plan of proposed works to be acquired by lease or purchase; that the cost thereof be estimated; and for the issuance and sale of bonds to provide funds therefor. In Section 6186, as amended in 1911, page 389, we find the provision:
“That in no case shall any land be taxed for irrigation purposes uiider this act which from any natural causes cannot be irrigated or which is incapable of cultivation. ’ ’
—and the further provision:
“That where ditches, canals,, reservoirs or other irrigation works or pumping plants are actually constructed and in operation at the time of the organization of the irrigation district, the lands actually irrigated therefrom at that time shall not be liable to*613 be taxed under the provisions of this act, except for benefits accruing thereto by reason of the construction or maintenance of a drainage system or works by said district, until such time as such irrigation district shall purchase, lease or acquire, by condemnation or otherwise, such ditches, canals, reservoirs, pumping plants or other works, including water rights; provided, however, nothing in this act shall inhibit the board of directors from at any time entering into a contract respecting any lands within said district exempting such lands from liability under this act except from debts already incurred, upon condition that the district be exempted from any liability or duty to furnish water or other benefit to such lands.”
Section 25 of the amendatory act authorizes the boundaries of any irrigation district to be changed, and tracts of land which were included therein to be excluded therefrom—
“but neither such change of the boundaries of the dis-. trict nor such exclusion of lands from the district shall impair or affect its organization, or its right in or to property, or any of its rights or privileges of whatever kind or nature; nor shall it affect, impair, or discharge any contract, obligation, lien, or charge for' or upon which said district was and may become liable or chargeable, had such change of its boundaries not been made, or had not such land been excluded from the district. ’ ’
It provides for notice to be given in case of petition for such exclusion, for a hearing by the board of directors, and for objections to bé made to said petition. Subdivision (d) of said section further directs the manner of hearing and the authority of the board in the matter of exclusion of land. It provides:
“That it shall be the duty of said board to.so order, upon petition therefor, * * that all lands so petitioned to be excluded from said district shall be*614 excluded therefrom which cannot be irrigated from or which are not susceptible to, or would not by reason of being permanently devoted to uses other than agricultural, horticultural, viticultural or grazing, be directly benefited by the actual irrigation of the same from a common source, or by the same system of works with the other lands of said district, or from the source selected, chosen or provided, or the system adopted for the irrigation of the lands of said district, or which are already irrigated, or entitled to be irrigated, from another source or by another system of irrigation works. ’ ’
Subdivision (e) of this section provides that if there be outstanding bonds of the district at the time of filing said petition, the holders of said bonds may give their assent to the exclusion of any such lands from a district by order of said board or by the decree of the Circuit Court as hereinafter provided; that if said lands are so excluded they shall be released from the lien of said bonds. Subdivision (f) states that, notwithstanding the lands may be excluded, the district shall remain an irrigation district to every intent and purpose as though said lands had not been excluded.
Turning to the district improvement law of 1911, page 256, w-e find that any number of land owners, not less than three, may incorporate and file articles of incorporation for the purpose of improvement of the lands by irrigation or drainage, of both. Section 5 thereof provides that, upon filing the articles of incorporation, the owners of- all the lands described in the articles shall make, subscribe and acknowledge, before some person authorized to take the acknowledgment of deeds, a notice—
“to whom it may concern that the lands described in said notice will be improved by irrigation or drainage or both by said corporation under the provisions of*615 this act. Said notice shall he recorded in the office where deeds and other instruments affecting the title to real property are recorded, of the county or counties where the land is situated. From and after the recording of said notice all the debts and obligations of said corporation theretofore or thereafter created shall be a lien upon all the land described in said notice prior to every lien attaching to said land subsequent to the date of recording said notice, except state, county and school taxes, whether such debt or obligation of said corporation be in existence at the time such later lien attaches or be created afterward, and said lien shall not be personal, but shall be an obligation upon the land and shall run with the land.”
The act confers upon such corporation the power of eminent domain, and enumerates the manner of the organization, powers and duties of officers, etc.
From the provisions of the acts to which we have referred at some length, it will be noticed that their objects and purposes are identical. When carried out, they reach the same end simply by a different route. It is shown and should be borne in mind, that prior to the organization of the irrigation district, the district improvement company was organized, and the owners of land, including the plaintiff, Eathfon, executed and recorded the notice provided for in the act, and thereby subjected their land to the liabilities of the corporation, among which were bonds issued and sold, amounting to the sum of $55,000. This solemn contract executed under the provisions of the law must be taken into consideration in this case. The Constitution of this state (Article I, Section 21) provides that:
“No ex post facto law, or law impairing the obligations of contracts, shall ever be passed, nor shall any law be passed, the taking effect of which shall be made to depend upon any authority, except as provided in*616 this Constitution; provided, that laws locating the capital of the state, locating county seats, and submitting town and corporate acts, and other local and special laws, may take effect or not, upon a vote of the electors interested. ’ ’
Hence it is necessary to inquire whether or not by the two acts the legislature intended to provide for the creation of two separate gwasi-public corporations for the purpose of exercising the same delegated powers within the same area, for a similar purpose, at the same time. This case is an illustration of the rule that such cannot be done without the existence of chaos: 1 Dillon, Mun. Corp. (4 ed.), § 184; In re Madera Irr. Dist., 92 Cal. 296" court="Cal." date_filed="1891-12-14" href="https://app.midpage.ai/document/in-re-the-bonds-of-the-madera-irrigation-district-5445663?utm_source=webapp" opinion_id="5445663">92 Cal. 296 (28 Pac. 272, 675, 27 Am. St. Rep. 106, 14 L. R. A. 755); Straw v. Harris, 54 Or. 424" court="Or." date_filed="1909-08-24" href="https://app.midpage.ai/document/straw-v-harris-6901289?utm_source=webapp" opinion_id="6901289">54 Or. 424 (103 Pac. 777). If the irrigation district has full power to tax the lands of plaintiff and sell the same upon an execution for the nonpayment thereof, then nothing will be left to satisfy the liabilities of the district improvement company’s indebtedness, and its obligations must necessarily be impaired. In the case of In re Sanitary Board, 158 Cal. 453" court="Cal." date_filed="1910-10-03" href="https://app.midpage.ai/document/in-re-sanitary-bd-of-e-fruitvale-sanitary-dist-3304533?utm_source=webapp" opinion_id="3304533">158 Cal. 453 (111 Pac. 368), in referring to this question, it is said:
“These rules do not rest upon any theory of constitutional limitation. In the absence of any- constitutional restriction, the legislature has absolute power over the organization^ the dissolution, the extent, the powers and the liabilities of municipal and other public corporations established as agencies of the state for purposes of local government.”
The question as to the effect the exclusion of plaintiff’s lands from the district might have upon the bonds of the irrigation district, which have been issued, need not here be determined, as the bondholders are not parties to this suit. Prom the statement
The question therefore arises as to whether the proceedings relating to plaintiff’s lands were involved in the suit, brought by the directors of the irrigation district to have the organization of the district declared valid, which was appealed to this court. There is no question but that the district was regularly organized and the bonds regularly issued. Such proceedings are unquestioned in this case, the only question being as to whether or not plaintiff’s, lands are included in the district. We are relieved from examining the record to ascertain whether this question was involved in the suit referred to by the stipulation of the parties to this proceeding, found on page 77 of the transcript of evidence, which is to the effect that it is admitted by defendants that plaintiff’s petitions for the exclusion of lands, Exhibits 8 and 11, filed in the County Court of Malheur County, Oregon, “were not included in the determination in the suit” in the Circuit Court or Supreme Court: See Sowerwine v. Central Irr. Dist., 85 Neb. 687" court="Neb." date_filed="1909-12-23" href="https://app.midpage.ai/document/sowerwine-v-central-irrigation-district-6658888?utm_source=webapp" opinion_id="6658888">85 Neb. 687 (124 N. W. 118), which is somewhat in point. The plaintiff did not neglect to make application to the proper authorities to have his land excluded, and in this respect the case differs widely from that of Wilder v. Board of Directors, 55 Colo. 363" court="Colo." date_filed="1913-06-02" href="https://app.midpage.ai/document/wilder-v-south-side-irrigation-district-6565912?utm_source=webapp" opinion_id="6565912">55 Colo. 363 (135
It follows from the plain direction of the legislative enactments that the decree of the lower court should be, in all things, affirmed, and it is so ordered.
Affirmed.
Dissenting Opinion
delivered the following dissenting opinion:
Embodied in Chapter 172 of the Laws of 1911 is a procedure whereby any number of land owners, not less than three, may incorporate themselves for the purpose of irrigating or draining, or irrigating and draining, their own lands in the manner therein prescribed. Having executed the required articles, wherein, among other things, the particular description of the lands embraced in the project is set out, the owners are required unanimously to sign and acknowledge a notice to whom it may concern that the realty included in the scheme will be improved by irrigation or drainage, or both. Upon filing the notice for record like a deed to real property, the corporation is authorized to incur debts and obligations which shall constitute liens to run with the land. Membership in the concern depends upon ownership of realty affected by the undertaking. Generally, the institution is authorized to sue and be sued, to enter into contracts, to exercise the power of eminent domain for the. purpose of carrying out its objects, to fix rates, levy assessments and issue bonds. The general design is to provide for the organization of a private corporation for the purposes detailed above. At the same session of
The question here to be determined is whether or not the plaintiff’s land is subject to taxation at the hands of the defendant irrigation district. The claim of the defendants is either valid in toto or wholly void. The plaintiff is either entitled to have the proceedings under which his land was sold utterly disregarded, or he is subject to pay the amount required for redemption, in default of which he must lose his land. His contention is that the Snake Eiver District Improvement Company, which he assisted in organizing, is a municipal or public corporation possessing governmental powers,, and, being prior in time of organization, is paramount to and exclusive of the irrigation district which he likewise styles a public corporation. His theory is that two public corporations exercising the same functions cannot exist in the same territory nor exercise authority over the same persons or things. Whatever may be said of the Snake Eiver District Improvement Company, it is clearly not a municipal nor public corporation. It was formed by the voluntary unanimous acts of the corporators. It exists solely for private purposes, the improvement of the lands of the individual corporators. It does not possess the power of taxation. Like any other private corporation it has the power to assess and collect dues from its members, enforcing them as provided in Section 9, Chapter 172, supra, by a foreclosure
“Whenever fifty, or a majority of the holders of title to lands susceptible of irrigation from a common source or combined sources and by the same system or combined systems of works desire to provide for the irrigation of the same, they may propose the organization of an irrigation district, under the provisions of this act, and when so organized such district shall have the powers conferred, or that may hereafter be conferred, by law, upon such irrigation districts.”
The rule for inclusion of lands as thus defined is that they must be susceptible of irrigation from a common source or combined sources, and by the same system or combined systems of works. The exceptions to this general rule are found in the following-language quoted from Section 6168, L. O. L., as amended:
‘ ‘ Provided, that no land included within the limits of any city or town shall be included in any irrigation district ; that said court shall not modify said boundaries so as to except from the operation of this act any territory within the boundaries of the district proposed by said petitioners which is susceptible of irrigation by the same system of works applicable to other lands in such proposed district, nor shall any lands which*623 will not, in the judgment of said court, be benefited by irrigation by said system, be included within such district. ’ ’
What may be termed a quasi exception is also found in Section 6186, treating of the assessment of taxes upon property within the district as follows:
“Provided, that in no case shall any land be taxed for irrigation purposes under this act which from any natural causes cannot be irrigated or which is incapable of cultivation; and provided further, that where ditches, canals, reservoirs, or other irrigation works or pumping plants are actually constructed and in operation at the time of the organization of the irrigation district, the lands actually irrigated therefrom at that time shall not be liable to be taxed under the provisions of this act, except for benefits accruing thereto by reason of the construction or maintenance of a drainage system or works by said district, until such time as such irrigation district shall purchase, lease or acquire, by condemnation or otherwise, such ditches, canals, reservoirs, pumping plants or other works, including water rights.”
Again in Section 6179, as amended, in speaking of the board of directors, this language is used:
“Said board shall also have the right to acquire, either by lease, purchase, condemnation, or other legal means, all lands and waters and water .rights, rights of way and other property, including canals and works constructed and being constructed by private owners, necessary for the construction, use, supply, maintenance, repair and improvement of any canal or canals and works proposed to be constructed by said board, and shall also have the right to so acquire lands and all necessary appurtenances for reservoirs for the storage of needful waters, or for any other purpose reasonably necessary for the purpose of said district. The property, the right to condemn which is hereby given shall include property already devoted*624 to a public use which is less necessary than the use for which it is required by the district, whether used for irrigation or any other purpose. * * The use of all water required for the irrigation of the lands of any district formed under the provisions of this act, together with all water rights and rights to appropriate water, rights of way for canals and ditches, sites for reservoirs and all other property required in fully carrying out the provisions of this act is hereby declared to be a public use more necessary and more beneficial than any other use, either public or private, to which’ said water, water rights, rights to appropriate water, lands or other property have been or may be appropriated within said district to an extent less than the whole thereof. ’ ’
The act under which the Snake River District Improvement Company was formed is merely cumulative legislation on the subject of the formation of private corporations. Everything that could be accomplished by that act could have been effected by a corporation organized under previous legislation. Designedly the enactments under which the Payette-Oregon Slope Ir-' rigation District was formed is wider in its scope, and gives to such an institution far greater and more comprehensive powers than the other act referred to. The authority exercised by the defendant is based upon the will of the people in establishing a district susceptible of irrigation from a common source. Its sanction is visited upon the willing and the unwilling, provided a majority of the voters so direct. Its organization is carried on under the supervision of a judicial tribunal, the County Court. It possesses the power of taxation and its monetary exactions promulgated under that, authority are enforced by the tax collectors at the same time and in the same manner as state and county taxes are collected. It is plain that if the plaintiff had so
“The court shall in all actions or suits or other proceedings take judicial knowledge of the organization of, and boundaries of all irrigation districts which have been heretofore or may be hereafter organized under the provisions of this act”: Section 6169, L. O. L., as amended:
The same section provides for a contest of the election on organization by any person owning property within the proposed district liable to assessment. It requires that the contest shall be instituted within 60 days after the canvass of the vote and the announcement of the result by the County Court, and declares that:
“After the expiration of said period of sixty days no action or suit shall be commenced or maintained or defense made affecting the validity of the organization of any irrigation district organized under the provisions of this act.”
The whole substance of the plaintiff’s complaint is bound up in the sufficiency or nullity of the defendant
The act authorizing the existence of the defendant establishes a procedure for the subsequent exclusion of lands rightfully included in the first instance. The owner of realty who desires to have the same excluded is required to petition the board of directors for that purpose. Notice must be given by publication in some newspaper, requiring persons objecting to the same to show cause why it should not be granted. The exclusion of such land is left to the discretion of the board as the best interest of the district shall appear to them; but with this proviso appearing in subdivision (d) of Section 25, Chapter 223, Laws of 1911:
“Provided, that it shall be the duty of said board to so order, upon petition therefor, as aforesaid, that all lands so petitioned to be excluded from said district shall be excluded therefrom which cannot be irrigated from or which are not susceptible to, or would not, by reason of being permanently devoted to uses other than agricultural, horticultural, viticultural or grazing, be directly benefited by the actual irrigation of the same from a common source, or by the same system of works with the other lands of said district, or from the source selected, chosen, or provided, or the system adopted for the irrigation of the lands of said district, or which are already irrigated, or entitled to be irrigated, from another source or by another system of irrigation works. ’ ’
The complaint was amenable to the general demurrer because it does not show that the plaintiff’s lands come within any of the exceptions mentioned.
Mention is made of an application of the plaintiff to have his lands excluded, but this was not prosecuted beyond the action of the board of directors, and even if he had shown that his lands were already irrigated, or entitled to be irrigated, by any source or from,an-, other system of irrigation works, this would not exempt him from obligation to pay existing liens or indebtedness, for it is provided in subdivision (i) of Section 25, supra:
“Nothing in this act provided shall, in any manner, operate to release any of the lands so excluded from the district from any obligation to pay, or any lien thereon, of any valid outstanding bonds, or other indebtedness of said district at the time of the filing of said petition for the exclusion of said lands, but upon the contrary said lands shall be held subject to said lien, and answerable and chargeable for and with the payment and discharge of all of said outstanding obligations at the time of the filing of the petition for the exclusion of said land, as fully as though said petition for such exclusion were never filed and said order or decree of exclusion never made; and for the purpose of discharging such outstanding indebtedness, said*628 lands so excluded shall be deemed and considered as part of said irrigation district the same as though said petition for its exclusion had never been filed or said order or decree of exclusion never made and all provisions which may have been resorted to, to compel the payment by said land of its quota or portion of said outstanding obligation, had said exclusion never been accomplished, may, notwithstanding said exclusion, be resorted to to compel and enforce the payment on the part of said land of its quota or portion of said outstanding obligations, of said irrigation district for which it is liable, as herein provided.”
In brief, the organization of a district like the defendant is a proper exercise of the power of the people, manifested by an election held under the forms of law for that purpose. It voices the greatest good for the greatest number, and cannot be obstructed by any dog-in-the-manger policy of a minority. The plaintiff had his opportunity to contest the validity of the corporation, and the election resulting in its organization, at any time within 60 days after the result of the vote was declared. He did not avail himself of that privilege so far as the record discloses. Under the terms of the statute this concludes him. Moreover, as disclosed by the record, acting under the authority of the statute, the directors instituted a suit to determine the validity of the organization of the defendant and its right to issue bonds. By virtue of the law in question, the plaintiff had a right to appear in that procedure and again contest the regularity of the defendant organization, including its right to tax his holding. He suffered that opportunity to pass. He availed himself of the right to petition for the exclusion of his land, and his petition was denied. He has. had his day in court on all these several occasions, and it is too late now, and the procedure .in this case is unavailing, as we have
For these reasons I dissent from the majority opinion.