State v. Nyssa-Arcadia Drainage Dist.

157 P. 804 | Or. | 1916

Mr. Justice Benson

delivered the opinion of the court.

1. There are quite a number of alleged irregularities of which complaint is made, and we shall try to discuss these in their logical sequence. The first is the fact that the incorporators ignored the provisions of Chapter 4 of Title XLI, L. O. L., as amended by Chapter 241 of the Laws of 1911, and proceeded exclusively under the provisions of Chapter 340 of the Laws of 1915. These two acts cover the same subject, and in many respects are practically identical to such an extent that we may safely say that no important detail of the earlier statute is not covered in some manner by the later law. It follows that the law of 1915 was designed to be a substitute for the former act, which is repealed by implication: Little v. Cogswell, 20 Or. 345 (25 Pac. 727); Continental Ins. Co. v. Riggen, 31 Or. 336 (48 Pac. 476).

2. It is next contended that, in the order setting August 2, 1915, for the date of hearing, no hour was named, but there is no merit in this point, for it will be presumed that the hearing is to be had during business hours, and that those interested will present themselves therefor at the opening of the court for that day.

3. Plaintiff maintains that the act of 1915 violates the provisions of Section 32,' Article I, of the Constitution of Oregon, in that the people of the district are thereby taxed without their consent. We are unable to find anything in the statute which conflicts in any manner with the constitutional declaration referred to, since the methods of taxation and the authority to impose the same are derived from the people themselves through their representatives in the legislative assembly.

4. It is also maintained that the act violates Section 18, Article I of the Constitution, relating to taking of private property for public use without just compensation. We find nothing in the legislation referred to to justify this contention. It is true the law provides for the exercise of the right of eminent domain, but the owners of the property which may be so taken are fully protected.

5. The validity of the act is then challenged upon the ground that the title thereof does not refer to the issuance of bonds. The title reads as follows:

“To provide for the organization of drainage district [s], for the construction, operation and maintenance of drainage systems, for the payment of the cost of such systems and expenses incidental thereto.”

It will be seen that the title provides for the payment of the cost of the system, and the manner of providing for such payment is a detail.

6. It is next contended that the proceedings are vitiated by the fact that the proof of publication of the notice of the hearing before the County Court was not filed until more than six months after the date of publication. It is conceded, however, that the notice was actually published in strict compliance with the law, and it has been held by this court that the requirement in regard to filing the affidavit is directory, and does not affect the jurisdiction: McFarlane v. Cornelius, 43 Or. 513 (73 Pac. 325, 74 Pac. 468).

7. We then come to the contention that the findings of the court are insufficient, and as to this feature of the complaint it is enough to say that they are sufficient to comply with the requirements of the statute. It is further complained that, upon the resignation of one of the duly elected supervisors, the remaining members of the board elected his successor in compliance with the requirements of the statute. As the office is not one created by the Constitution, the legislature has unquestioned power to prescribe the mode of election.

There are some other minor details in which it is contended that the proceedings were irregular, but they are unimportant, and do not in any way affect the validity of the organization. We conclude, therefore, that the demurrer was properly sustained, and the judgment is affirmed. Affirmed.

Mr. Justice Eakin absent.