[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 450
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 451
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 452 The plaintiff filed in this court a petition for a writ of mandamus which was followed with the issuance of an alternative writ. After the service of the latter the defendants filed a return and answer to which the plaintiff demurred upon the ground that the answer fails to state facts sufficient to constitute a defense. Thus was created the issue before us.
Three of the defendants are the supervisors of the Nyssa-Arcadia Drainage District. A fourth is the county judge of Malheur county, that being the county in which the district is located. The remaining two defendants are the county commissioners of Malheur county.
The relief which the plaintiff seeks is the entry of an order commanding the defendants to levy a tax sufficient to pay bonds issued by the drainage district and owned by the plaintiff in the amount of $23,000.
The Nyssa-Arcadia Drainage District was organized in 1916, pursuant to 1915 Session Laws, Ch. 340. Its area when organized was 5,090.83 acres. The legality of that municipal body was sustained by this court in State v. Nyssa-Arcadia DrainageDistrict, 80 Or. 524, 157 P. 804. In 1916 the district issued and sold $70,000 of bonds. In 1918, when 204 acres were added to the district, it issued and sold an additional $15,000 of bonds. The proceeds of both issues were used in the construction of drainage facilities. Plaintiff owns bonds of both issues. *Page 454
The defendants concede that none of the bonds owned by the plaintiff has been paid. They present two main contentions: (a) The $15,000 issue is invalid; and (b) the supervisors of the district have performed all of the acts required of them by the statutes of this state to make provision for the payment of its bonded indebtedness and are not authorized to levy any additional taxes for the payment of the bonds.
The $15,000 issue, to which the record refers as the 1918 issue, was issued after the additional 204 acres had been added to the district. The addition of that tract to the district was followed by an extension of the district's facilities to the expanded area and by further development of the main works.
The first of the above two contentions is based upon a claim that when the supervisors authorized the 1918 issue they exceeded the authority conferred by 1915 Session Laws, Ch. 340. Specifically, the defendants contend that the issuance of those bonds was not preceded by a finding that the additional construction would confer a benefit upon the original 5,090.83 acres; and, further, that no notice was given to the owners of the 5,090.83 acres before the proceedings were begun which resulted in the 1918 issue. The defendants also contend that the record shows that the commissioners found that benefits amounting to no more than $3,355.91 would be conferred upon the 204 acres as a result of reclaiming that body of land. The estimated cost of the construction work upon the 204 acres was $2,680.20. The plaintiff contends that the commissioners found that the 204-acre tract would be benefited to the extent of $11,920.
The second of the above contentions may be stated more specifically thus: The defendants claim that the supervisors of a drainage district are authorized by *Page 455 1915 Session Laws, Ch. 340, to levy only one tax for the discharge of any issue of bonds, and that if the levy fails to yield returns sufficient for the payment of all the bonds, the loss must be borne by the unpaid bondholder.
We shall defer further mention of the facts until we have first reviewed the provisions of the statute which lend significance to the facts. Since there is no contention concerning the validity of the drainage district's organization, we shall omit mention of those portions of the statute which delineate the method of organization.
Section 8 of 1915 Session Laws, Ch. 340, requires the supervisors of a drainage district which contemplates the performance of reclamation work to appoint an engineer, and makes it incumbent upon him to prepare the needed plans. In the event his plans are adopted by the supervisors they become known as "the plan for reclamation." Section 11 requires the county judge, after the plans have been approved by the board of supervisors, to appoint three commissioners; and § 13 provides that the commissioners shall assess the amount of benefits and the damages, if any, that will accrue to each parcel of land within the district by reason of the reclamation project. Section 14 requires the county clerk to publish the report of the commissioners for three weeks. Section 15 permits owners of land in the district to file objections to the report of the commissioners. It authorizes the county court upon hearing of the objections to make any modifications to the report of the commissioners that may be equitable. Continuing, the section says that if the county court finds "that the estimated cost of the improvement contemplated in `the plan for reclamation' is less than the benefits to be derived therefrom; then *Page 456 the court shall approve and confirm said commissioners' report as so amended and modified." Thus we see that all "plans for reclamation" must be submitted to the local county court for rejection, modification or approval before any construction work can be undertaken. Further, no approval can be given unless the estimated cost of construction is less than "the benefits to be derived therefrom." Section 16 confers upon the board of supervisors authority to proceed with construction in the event the county court approved "the plan for reclamation." Section 17 declares that after the list of assessed benefits and damages has been received from the county court the supervisors shall, "without any unnecessary delay, levy a tax of such portion of said benefits on all lands in the district to which benefits have been assessed, as may be found necessary by the board of supervisors, to pay the costs of the completion of the proposed works and improvements as shown in said `plan for reclamation' * * * plus ten per cent of said total amount for emergencies. The said tax shall be apportioned to and levied on each tract of land in said district in proportion to the benefits assessed and not in excess thereof, and in case bonds are issued as provided herein and hereafter, then the amount of the interest (as estimated by said board of supervisors) which will accrue on such bonds shall be included and added to the said tax * * *." Thus we see that § 17 makes provision for the payment of the construction work if no bonds were issued, and for the payment of the latter if construction was followed by their issuance. It will also be seen that the amount of the tax, if no bonds were issued, is "the cost of the completion" plus ten per cent "for emergencies"; but if bonds were issued, then to the amount just indicated there must be added "the *Page 457 interest (as estimated by said board of supervisors)." The tax is not necessarily payable at once. Section 18, to which we now proceed, states the manner in which the gross tax must be collected. It directs the board of supervisors to each year "determine, order and levy the amount of the annual installment of the total taxes levied under the preceding section, which shall become due and be collected during said year at the same time and in the same manner that state and county taxes are due and collected * * *." Section 24 authorizes the county court to amend the decree which incorporated the district. The section provides that if the amendment changes "the plan for reclamation" or the boundary lines of the district, the court shall appoint commissioners and pursue the same course as when a district is first organized. Section 25 empowers the board of supervisors to "issue bonds not to exceed ninety per cent of the total amount of the taxes levied" under the provisions of Section 17. It will be recalled that § 17 directs the board of supervisors to levy a tax "without any unnecessary delay" for the payment of the construction work after the board has received from the county court the order which approved or modified the report of the commissioners. It will also be recalled that the levy must be enough to pay the cost of the construction work, but must not exceed the total "benefits assessed." We have just seen from the language of § 25 that the bond issue shall not "exceed ninety per cent of the total amount of the taxes levied." Continuing, § 25 supplements the language of § 17 which makes provision for the payment of the authorized bonds. It says:
"A sufficient amount of the drainage tax shall be appropriated by the board of supervisors for the purpose of paying the principal and interest *Page 458 of the said bonds and the same shall, when collected, be preserved in a separate fund for that purpose and no other. All bonds and coupons not paid at maturity shall bear interest at the rate of six per cent per annum from maturity until paid, or until sufficient funds have been deposited at the place of payment and the said interest shall be appropriated by the board of supervisors out of the penalties and interest collected on delinquent taxes or any other available funds of the district. * * * It shall be the duty of said board of supervisors in making the annual tax levy, as heretofore provided, to take into account the maturing of bonds and interest on all bonds, and to make ample provisions in advance for the payment thereof. In case the proceeds of the original tax levy made under the provisions of Section 17 of this Act are not sufficient to pay the principal and interest of all bonds issued, then the board of supervisors shall make such additional levy or levies upon benefits assessed as are necessary for this purpose, and under no circumstances shall any tax levies be made that will in any manner or to any extent impair the security of said bonds or the fund available for the payment of the principal and interest of the same."
Section 26 authorizes the board of supervisors to levy a tax for the discharge of current expenses and the maintenance of the improvements. Section 27 authorizes the supervisors "to formulate new or amended plans containing new ditches", etc. The same section also says:
"If it should be found at any time that the amount of total tax levied under the provisions of Section 17 is insufficient to pay cost of works set out in `the plan for reclamation' or additional work done under the provisions of this section the board of supervisors may make an additional levy to provide funds to complete the work, provided *Page 459 the total of all levies of such tax does not exceed the total amount of benefits assessed."
Sections 28 and 29, being the last two sections of the act, have no bearing upon the issue before us.
Possibly a word or two of recapitulation may serve a useful purpose. The benefits set forth in the "Commissioners' report, as confirmed or amended by the Court" (county court) constitute the limit of the district's taxing power for the payment of construction work, whether the indebtedness remains in its original form or has assumed the form of bonds. In legal contemplation the assessment is against the benefits conferred by the improvement, and the annual sums payable are not taxes in the ordinary meaning of that term; but in this case those details are of no consequence. Although the tax is levied by the board of supervisors, which also determines the amount of the annual installments, payment is made at the same time as all other taxes are paid and to the same county officials.
Section 2 of 1919 Session Laws, Ch. 184, amended § 18 of 1915 Session Laws, Ch. 340, by making it read:
"The board of supervisors shall each year make a computation of the whole amount of money to be raised by the district through assessments for the ensuing year for any and all purposes whatsoever in carrying out the provisions of this act, including estimated delinquencies on assessments; and said amount of money, when so determined by said board, shall be and constitute an assessment upon all of the land included in said district and shall be apportioned by said board in accordance with the report of the commissioners as confirmed or amended by the court as provided for in Section 15 of Chapter 340 of the general laws of Oregon for 1915. * * *" *Page 460
March 31, 1916, the board of supervisors of the district filed with the county clerk of Malheur county a Plan for Reclamation which the board had adopted. The defendants concede that thereafter the proper procedure was followed so that the county court of Malheur county "duly made * * * and entered" on July 18, 1916, an order approving the plan. About the same time, according to the answer, the county court appointed three commissioners "who duly qualified as such" and who later "duly filed their report" setting forth benefits and damages. Some objections to the report were filed. The answer next says:
"* * * thereafter, upon notice given * * * a hearing was duly held upon the report of the said Commissioners and the objections thereto, and said report of Commissioners was amended and modified, and the said County Court by its order duly made and entered on the 6th day of October, 1916, reduced the benefits assessed against one M.H. Plummer, and overruled the other objections, and duly approved and confirmed the report of Commissioners as so amended and modified. * * * That the said report of Commissioners, as modified and approved, found that the total cost of constructing the said `Plan for Reclamation' would be $61,539.36, and that the benefits therefrom would amount to $79,890.55, and would be in an amount sufficient to authorize a bond issue of $70,000 allowing the ten per cent for emergencies as required by statute. That the report of Commissioners as amended and confirmed, apportioned the said cost and total benefits to each parcel of land * * * according to the benefits accruing thereto * * *."
October 16, 1916, according to the answer, the board of supervisors by resolution adjudged it best to issue *Page 461 and sell $70,000 of bonds to pay the cost of the construction work. Continuing, the answer declares:
"That the Board of Supervisors by such Resolution further levied a tax against the lands of the district in the amount of $78,648.31 to pay the principal amount of said bonds, and ordered the Secretary of the district to enter on the `Drainage Tax Record of the Nyssa-Arcadia Drainage District' such tax and extend the same against each tract of land in proportion to the benefits thereto, * * *."
The answer says that the secretary obeyed those instructions. November 1, 1916, the board sold the bonds authorized by the above-mentioned resolution at a price of $97.27 for each $100 denomination of bond. Each bond bore the signatures of the president and the secretary of the board. Each recited:
"Nyssa-Arcadia Drainage District, Malheur county, State of Oregon, hereby covenants and warrants with the holder of this bond that all acts and things precedent to the issue of this bond have been done and performed in the manner and form and at the times required by law and that every requirement of law relating to the issue of this bond has been duly complied with and that this bond is within every debt and other limit prescribed by the constitution or laws of the State of Oregon and that a proper levy of taxes of benefits has been made for the payment of the principal and interest of this bond when the same falls due."
November 4, 1916, the board of supervisors awarded a contract for the construction of the work. The amount was $58,567.75, subject to a discount of 2 1/2 per cent for cash payment. The contractor completed performance of the work and was paid out of the funds provided by the bond issue. *Page 462
Continuing, the answer states:
"That thereafter, and on or about the 6th day of August, 1917, after petition filed, and notice given, the County Court of Malheur County, Oregon, duly made its order amending and changing the boundaries of the Nyssa-Arcadia Drainage District so as to include the following described land * * *."
Here follows a description of the 204 acres which we have already mentioned.
The answer continues:
"That a `Supplemental Plan for Reclamation' for said added lands was duly adopted by the Board of Supervisors and filed with the County Clerk, * * * and that a duly appointed, qualified and acting Board of Commissioners assessed the benefits and damages resulting and accruing from the construction of the work in accordance with the said `Supplemental Plan for Reclamation' and that on the 23rd day of August, 1917, said Board of Commissioners filed their report * * *; that thereafter, on to-wit, the 25th day of September, 1917, after due notice and hearing, the County Court of Malheur County, Oregon, by an order duly made and entered, settled and approved said report * * *. That thereafter, without resolution or order of the Board of Supervisors of the district, there was extended upon the `Drainage Tax Record' of said district a purported tax levy against the properties so included within the limits of the district, in the amount as set forth in said `Drainage Tax Record.'"
Further, the answer avers that the board of supervisors on April 5, 1918, through the adoption of a resolution, decided to issue and sell $15,000 additional bonds to provide means for the payment of the work required by the Supplemental Plan for Reclamation. *Page 463 The same resolution, according to the answer, "levied a tax against all of the lands within the district including the lands included by said order of August 6, 1917, in the amount of $16,667.00 to pay the principal amount of said bonds, and ordered the secretary of the district to enter on the `Drainage Tax Record' of the district such tax and extend the same against each tract of land in proportion to the benefits thereunto assessed. * * * pursuant to said resolution the said secretary made up and entered a tax on the said `Drainage Tax Record' * * *." The answer avers that the bonds when issued were dated November 1, 1916, and bore the signatures of the president and the secretary of the district. Each bond contained the same recital which we quoted in a preceding paragraph from the bonds of the earlier issue. The answer further alleges:
"No `Plan for Reclamation', either new or amended, other than the `Plan for Reclamation' as alleged in Paragraph X of this return, and no determination or finding of costs or of benefits, other than as alleged in said Paragraph X, was made at any time."
We pause to explain that Paragraph X, from which we quoted on a preceding page, is the one that avers the adoption and approval of the Supplemental Plan for Reclamation. It speaks of a Supplemental Plan for Reclamation — not of a Plan for Reclamation. Continuing, the paragraph from which we were quoting (XIII) says:
"That the benefits determined under such `Supplemental Plan for Reclamation' alleged in Paragraph X was the sum of $3,355.91 and no more, * * * and that the purported tax levy of $16,683.70 as shown by the drainage tax record * * * exceeded the benefits assessed, and was *Page 464 illegal * * * and was charged against property not determined to be benefited by the `Supplemental Plan for Reclamation' * * * And defendants allege that the said 1818 series bonds so issued against this illegal and void tax levy were illegal and void in themselves, * * *"
Continuing, the answer avers:
"That from time to time, commencing in 1917, the board of supervisors of the district levied annual installments of the original taxes * * * for the payment of interest accruing and principal of bonds as they matured * * *. That the total amount of annual installments so levied is in excess of the total amount of the original tax levies * * * and that by so levying the annual installments of tax to the full amount of original tax, the Board of Supervisors of the district have performed each and every act and thing to be performed by them to secure the payment of said bond issue of 1916 series, and of said 1918 series if the same be valid, and that these answering defendants as the Board of Supervisors of said District have no authority or power to levy any more or further taxes or assessments for the payment either of principal or of interest upon said bonds. * * *"
The answer admits that the bonds held by the plaintiff have not been paid and attributes nonpayment to tax delinquencies. It explains that the state has acquired title to some tracts of land in the district through the foreclosure of mortgages executed prior to the issuance of these bonds and given to secure the payment of loans made out of the irreducible school funds, and that the foreclosure decree cancelled the unpaid district assessments. The answer also explains that Malheur county has foreclosed the lien of delinquent taxes upon some tracts, and adds: "Upon foreclosure by Malheur County any and all lands so foreclosed *Page 465 were discharged of further lien and assessment of the district for bond and interest assessments." Finally, the answer states that the district itself acquired title to tracts of land within its boundaries by foreclosure of certificates of delinquency which it owned.
In each instance in which the answer mentions an order, plan, petition, report or other paper, it attaches to itself a copy of the document and declares that the latter is made as much "a part of this return as though fully set forth herein."
The board of supervisors did not intend to use the proceeds of the 1918 issue exclusively upon the 204-acre tract, as is evident from a resolution adopted by the board April 5, 1918. It declares:
"Whereas, the drainage system has been extended under approval of the said entitled Court for the purpose of benefiting said lands so included; and
"Whereas, it has been found that the works set out in the `Plan for Reclamation' are insufficient to reclaim a part of the lands within said district, and the Board of Supervisors have formulated amended plans extending laterals and ditches so as to more effectually reclaim the said lands of said district, and to furnish the benefits assessed against said lands;
"Whereas additional works have caused an indebtedness, and it has been found that the total tax levied under the levy heretofore made, upon which bonds were issued to the amount of Seventy Thousand Dollars, and the proceeds from the sale of said bonds is insufficient to complete the work of said district; and * * *"
The adoption of that resolution preceded the issuance of the bonds. *Page 466
It will be observed that the answer alleges that the commissioners who were appointed to determine the benefits and damages which would accrue from the Plan for Reclamation (the one filed in 1916 upon organization of the district) reported that the benefits would be $79,890.55. And it will be recalled that the answer alleges that the commissioners who determined the benefits and damages which would result from the Supplemental Plan for Reclamation (the one which followed the addition to the district of 204 acres) found that the benefits would amount to $3,355.91. The plaintiff claims that the commissioners found that the benefits which would result from the Plan for Reclamation would be $282,325.10 and that the benefits which would come from the Supplemental Plan for Reclamation would be $11,920. Both parties, in arguing their contentions, refer to exhibits attached to the answer. As we have said, the answer makes the exhibits "a part of this return as though fully set forth here." In view of that averment and the constant reference by the parties to the exhibits, we shall deem that the latter control the averment. The exhibits to which we now especially refer are the reports of the commissioners, the orders of the county court in regard to them, and orders made by the board of supervisors.
The commissioners who determined the benefits and damages which would accrue from the Plan for Reclamation made a comprehensive report. A part of it consisted of pages containing data arranged in twelve columns. In the first column the commissioners entered the owner's name; in the second, a legal description of his property; in the third, the section in which his property was located; in the fourth, the number of acres in his tract; and in the fifth to the ninth, inclusive, *Page 467 (according to the commissioners' report) "the classes in which the land has been placed according to benefits received." The five columns are headed 25, 40, 40, 70 and 80. The report gives an explanation of these columns and figures. For instance, it says: "Column 5 Poor dry land is rated with the lowest benefit, 25, and will be taxes (taxed) for the Bond issue $7,000." It next says: "Column 6 Poor wet land is rated 40, and will be taxes (taxed) for Bond issue $11.20." Further, it says: "Column 8 Good land that is losing crop production by reason of a rising water table; is rated at 70, and taxed $19.60." Similar explanations are made for the other two columns. In using these numbers, 25, 40, 70 and 80, manifestly, the commissioners intended that the figures should represent something which they had in mind. The next column, being 10, is entitled "Units." The plaintiff claims that by "units" the commissioners meant "dollars" and that they employed these six columns as the means of reporting the benefits which they estimated each tract would receive from the reclamation. It will be recalled that the report, referring to these columns, said that the land had been placed in these columns "according to benefits received." We shall now illustrate by this page how the commissioners classified the land "according to benefits received." The first owner whose name appears upon these sheets, according to the fourth column owned 19.55 acres in the district. In the column entitled 70 the commissioners entered 7.55 and in the column entitled 80 they entered 12. The sum of the two is 19.55 or the number of that owner's acres. In the column entitled Units they set opposite his name 1488.5. It thus appears that the commissioners found that 7.55 acres of this owner's property would be benefited to the extent of 70 units per acre and that *Page 468 12 of his acres would be benefited 80 units per acre. The total of 70 X 7.55 added to 80 X 12 is 1488.5, the number entered in the Unit column. The plaintiff claims that 1488.5 means that this owner's benefits from the work were estimated as $1488.50. The columns headed 25, 40, 40, 70 and 80 also bear the following notations: 7.00, 11.20, 11.20, 19.60 and 22.40. Explanations accompanying the sheets say that those are the amounts which the commissioners found each acre should be assessed for the improvement. For instance, an owner benefited 25 units per acre would be assessed 7.00 per acre. Thus, the owner to whom we referred a moment ago and who had 19.55 acres would be taxed, according to this report, 19.60 per acre for 7.55 of his acres and 22.40 per acre for 12 of his acres, or a total assessment against his land of 416.78. The latter figure appears in the 12th column which is entitled "Levy for Bond Issue." Those assessments were actually made when the tax was later levied.
It will be recalled from the sections of our statutes which we quoted in a preceding paragraph that the principal duty of the commissioners is to determine benefits and damages. If "Units" means dollars, then this comprehensive report set forth fully the determination of benefits; but if Units was not used in that sense its meaning has escaped detection. Likewise, if Units does not mean "benefits anticipated from the improvement," we have only two columns left to which we can look for the entry of benefits — the 11th column entitled "Cost Engineer's Estimate" and the 12th column, "Levy for Bond Issue." Clearly, those two columns cannot contain the entry of benefits. It will be recalled that the entries of the commissioners which recommended the tax levy against each tract omitted the dollar sign in the same manner as the Unit column, *Page 469 yet no difficulty was experienced there through that omission.
It seems clear from the preceding explanation and calculations that "Units" was employed by the commissioners in place of the word "dollars" and that in the column thus entitled they entered the amount of benefits which they believed the reclamation project would bestow upon each tract of land. But if we need a Rosetta Stone to explain the term Units, we have it in the order of the county court which modified and then approved the report of the commissioners. The order of modification and of approval first took notice of some objections which had been filed against the report. Concerning one of the objections, it said: "The Court herein in making such reduction has taken into consideration * * * item No. 44 be and the same is hereby amended to and shall read to carry a total assessment of benefits of 764 units or $764.00." Thus, the court employed the words units and dollars as equivalents in meaning. It will be recalled that findings of commissioners remain ineffective until approved by the county court. After the modifications had been made the commissioners' report was approved. In its modified form (including the sheets and the 12 columns) it was made a part of the order of approval.
The commissioners, who assessed the benefits and damages under the Supplemental Plan for Reclamation, said in their report: "We have therefore followed the method of assessment used originally in making the assessment of benefits, that is to say, the method upon which the tax already levied against the other lands of the district is based." Having made that explanation, the report employed a sheet containing 12 columns similar to that used by the first body of commissioners, *Page 470 with the exception of the 12th column. The first body of commissioners entitled their 12th column "Levy for Bond Issue"; the 1918 body used for that column the heading "Benefits Assessed." The column entitled Units contains a string of figures which total 11,920. After this report had been submitted the county court approved it. The order of approval carried a column entitled "Benefit" in which was entered the same figures that the commissioners had entitled "Benefits Assessed." We think that word was clearly a misnomer and that it was not intended to indicate Anticipated Benefits.
From the foregoing we see that the first body of commissioners found that 282,325.10 units would accrue from the Reclamation Plan and that the second body of commissioners found that 11,920 units would accrue from the Supplemental Plan for Reclamation. The total of these two sums is 294,245.10. The drainage tax record of the district for the year 1918 likewise carried a column entitled "Units." At the foot of the column is the total of the several entries. It is 294,245.10. After the report of the second body of commissioners had been approved by the county court the board of supervisors adopted a resolution (it authorized the issuance of the 1918 series of bonds ($15,000)) and declared: "The total assessment of benefits against all the lands of said Nyssa-Arcadia Drainage District is the sum of Two Hundred Ninety-four Thousand Two Hundred Forty-five 10/100 Dollars ($294,245.10)." From the foregoing we have an explanation of that total ($294,245.10); otherwise it is wholly unexplained. These circumstances show that by "units" was meant "dollars" — or anticipated benefits. We have also seen that the order of the county court in approving the report of the first body of commissioners used the *Page 471 term units and dollars interchangeably. From the order of the board of supervisors just quoted we observe that it spoke of the total benefits aggregating $294,245.10, which is the sum derived from the addition of $282,325.10 and $11,920.00. Thus the supervisors dealt with units as the equivalent of dollars. And, finally, we see that the first drainage tax record which the district compiled after the annexation of the 204 acres carried the total of 294,245.10 under a column of figures entitled Units. If units was not used as meaning dollars, then we have no explanation whatever for these various columns and the repeated use of the term Units. We are satisfied that the column entitled Units was intended to indicate benefits and that the number of units was the amount in dollars that the plan would confer in benefits upon the various tracts of land.
We conclude from the foregoing that the issuance of the two series of bonds was well warranted by the benefits which reports of commissioners approved by the county court found would come from the contemplated reclamation work.
The contention of the defendants that 1915 Session Laws, Ch. 340, limits a board of supervisors to the levy of one tax only and that if the tax fails to yield enough for the payment of the outstanding bonds, no additional tax levy can be made, even though the assessed tax was far less in amount than the benefits reported by the approved report of the commissioners, is clearly without merit. More than one section of the 1915 act directly refutes this contention. We shall quote only one section (25); it says:
"In case the proceeds of the original tax levy made under the provisions of Section 17 of this *Page 472 Act are not sufficient to pay the principal and interest of all bonds issued, then the board of supervisors shall make such additional levy or levies upon benefits assessed as are necessary for this purpose."
We have carefully read State ex rel. v. Little River DrainageDistrict, 334 Mo. 753, 68 S.W.2d 671, upon which the defendants rely. Although that case involved a drainage district and bonds issued by it, the nature of the controversy it submitted to the court was so dissimilar to the one before us that nothing said in deciding the issue would be likely to cast any light upon our case. We have found nothing in it at variance with our conclusion that the defendants are authorized to levy more than one tax. Volume 19, C.J. Drains, § 267, p. 748, and 28 C.J.S., Drains, § 76, p. 454, and the authorities cited in those sections, support the conclusion that we have just announced.
The contention of the defendants that the issuance of the $15,000 of bonds was not preceded by a finding that the supplemental works would confer a benefit upon the original 5,090.83 acres, and that the required notice was not given to the owners of those tracts before the proceedings resulting in the issuance of the bonds were begun, in our opinion, lacks merit. In the first place, the defendants' answer says that after the Supplemental Plan for Reclamation had been adopted by the board of supervisors, commissioners were appointed who assessed the benefits and damages. Then, after the answer has averred that the commissioners filed their report August 23, 1917, it says: "* * * thereafter, on to-wit, the 25th day of September, 1917, after due notice and hearing, the County Court of Malheur County, Oregon, by an order duly made and entered, settled and approved said report." Finally, *Page 473 the statute does not require that additional benefits be assessed if the additional work does not exceed the original benefits. This contention is clearly without merit.
We now quote from 19 R.C.L., Municipal Corporations, § 301, p. 1007:
"Where, by legislative enactment, authority has been given to the officers of a municipality to issue its bonds on some precedent condition, the recital in such bonds by the officers of the representative body invested with power to perform the condition, and with authority to determine when that condition has been performed, that all the requirements of law necessary to authorize the issue of the bonds has been fulfilled, precludes inquiry, as against an innocent purchaser for value, whether or not the precedent condition had been performed before the bonds were issued, and when it may be gathered from the enactment that those officers were invested with power to decide whether or not that condition had been fulfilled, their recital in the bond issued by them that it was fulfilled is duly authorized, and it estops the municipality from proving its falsity to defeat the bonds in the hands of an innocent purchaser."
We have seen that through assessments of benefits which secured the approval of the county court, and through the enactment of resolutions which authorized the issuance of the two series of bonds, the district's officers were authorized to sign the bonds. In all instances, according to the answer, the action was "duly" taken. The officers, therefore, had authority to make the recitals in the bonds which we quoted in a preceding paragraph. Those recitals are now conclusive upon the district and prevent the defendants, or estop them, from contending that an irregularity or *Page 474 failure to make some entry denies validity to the bonds. Moreover, it will be seen from the defendants' own averments that the district for thirteen years recognized the bonds as valid and paid interest upon them. McQuillin on Municipal Corporations, 2d ed., § 2309, says: "* * * payment of interest for several years by the municipality estops it to set up mere irregularities in the issuance of bonds."
The foregoing principle of law disposes of all remaining issues presented by the defendants.
Seemingly, the defendants plead the mortgage and delinquent tax foreclosures by the state, county and defendant district as a defense. We feel safe in assuming that in every tax-levying municipality there are tax delinquencies and properties upon which the liens of delinquent taxes have been foreclosed. In all likelihood, in some counties the problem created by tax delinquencies is more aggravated than in this drainage district. The answer before us mentions no amounts or other details. It gives no further details of consequence than those stated in a preceding paragraph of this opinion. It asks for no advice from this court; nor does it afford sufficient information to warrant the proffer of advice. Clearly, the foreclosures amount to no defense in this proceeding.
The above disposes of every contention advanced by the defendants. The plaintiff's demurrer to the return and answer is sustained. They may have ten days' time in which to plead further. If no amended return is filed within that time, the writ will be made peremptory. *Page 475
Loading…