Kollock v. Barnard

PEE CUEIAM. The question now submitted to the court upon the record is whether or not the writ of mandamus based upon the facts which are undisputed shall issue as prayed for. This proceeding is brought by the plaintiff as the owner and holder of one of the bonds of the district and is brought on behalf of himself and all defendants similarly situated. The fact of the requirement of the district for the year 1926, as to interest and bond maturities, and the fact of the refusal of the officers of the district, and of the County Court to make such levy, are admitted. It is a well-settled law that mandamus will lie to compel the levy of a tax required by a mandatory statute, unless some other remedy is provided: 38 C. J. 772, § 415; Gibbons v. Hood River Irr. Dist., 66 Or. 208, 210 (133 Pac. 772); City of Astoria v. Cornelius (Or.), 240 Pac. 233. *703 Section 7326, Or. L., requires the assessment of all the land in the district for the payment of the principal and interest due on bonds outstanding of the district: Noble v. Yancey, 116 Or. 356 (241 Pac. 335). The provisions of the statute relating to the issuance and payment of bonds and obligations of the district are clear and definite. The sections of Oregon Laws applicable are as follows: “Sec. 7326. Said bonds and the interest thereon and all payments due or to become due to the United States, under any contract between the district and the United States, accompanying which bonds of the district have not been deposited with the United States as provided in this act, and all obligations for the payment of money authorized and incurred under this act, shall be paid by the revenue derived from the annual assessments upon the land in the district, and all lands in the district shall be and remain liable to be assessed for such payments as herein provided, and under, and subject to the provisions of this act. “In case the amount assessed against any tract of land shall not be paid the next assessment against the land in the district shall be so increased as to take care of such default. In addition to the provision for the payment of said bonds and interest by taxation and other provisions of this act, all the property of the district, including irrigation and other works, shall be liable for the indebtedness of the district, and the holder of the bonds or the United States, in case contract has been executed by the United States, may, in case of default in the payment of interest or principal on the bonds, or the amount due on the contract, upon the order of the circuit court, take possession of the irrigation and other works of the district and operate the same until the amount in default shall have been fully paid.” “Sec. 7327. Payment of Coupons: Redemption of Bonds. The treasurer shall keep a ‘Bond Fund’ account or a ‘United States contract fund’ account, or a ‘Bond and United States contract fund5 account, as *704 the case may be, into which shall be covered all moneys arising from the sale of refunding bonds and assessment and levy until there is sufficient money in such fund to meet the next instalment' of principal and interest upon bonds of the district, and to meet all payments for construction and all other purposes to the United States. From said fund he shall pay moneys due as principal and interest on bonds as they shall mature and the bonds and coupons be presented and as payments to the United States shall fall due.” “Sec. 7328. Assessments. The board of directors shall, on or before the first Tuesday in September of each year, make a computation of the whole amount of money necessary to be raised by said district for the ensuing year for any and all purposes whatsoever in carrying out the provisions of this act, including estimated delinquencies on assessments.” “Sec. 7330. Equalization Board: Hearing of Objection. On the first Tuesday of October of each year the board of directors, which is hereby constituted a board of equalization for that purpose, 'shall meet and continue in session from day to day, as long as may be necessary, to hear and determine any objections by any interested persons to the assessments and apportionment thereof and any other matters connected therewith that may come before them, and the board shall change its assessment and the apportionment thereof and the list and the record of the same as to irrigable acreage, description, etc., in any respect and in such manner as may be necessary to make the same just and in accordance with the facts. The secretary of the board shall be present during these sessions, and shall note all changes made in such assessment, apportionments, lists and record, and in the names of the persons whose property is listed.” See Gibbons v. Hood River Irr. Dist., 66 Or. 210 (133 Pac. 773). “Sec. 7331. Levy of Assessment, and Collection. In case of neglect or refusal of the board of directors to cause such assessment and levy to be made, as in *705 this act provided, then the assessment and levy herein provided for shall be made and equalized by the county in which the office of the board of directors is situated, sitting for the transaction of county business, in the same manner that said court levies county taxes with like effect as the board of directors is required to make the same, and all expenses incident thereto shall be borne by such district, and such levy and assessment shall be entered on the county tax roll by the county assessor in the manner in this section provided.” The defendant urges that plaintiff has a plain, speedy and adequate remedy at law. Section 613, Or. L., provides that the writ of mandamus shall not be issued where there is such a remedy. The main contention of defendants is that the provisions in Section 7326, Or. L., provide that in cases of default in the payment of the interest or principal of the bonds of an irrigation district, a bondholder may apply to the Circuit Court, and by order of such court, he may take possession of the irrigation and other works of the district and operate the same until the amount in default shall have been fully paid, and that this provision is a method of foreclosure available to plaintiff and provides his remedy. The bond issue of an irrigation district or municipality is not a mortgage. There is nothing in the statute which gives the bondholder a lien upon the irrigable land included within the district. The last section referred to does not provide for a foreclosure as suggested by defendants. The statute expressly provides: “Such bonds and the interest thereon * * and all obligations for the payment of money * * shall be paid by revenue derived from the annual assessments upon the lands in the district.” No other source of payment is indicated in the act. The *706 provisions in the second paragraph of Section 7326, referred to above, and claimed by defendants’ counsel as providing adequate remedy for plaintiff by taking possession of the irrigation, and other works of the district, is not a proceeding for foreclosure, but is intended as an ancillary proceeding somewhat analogous to the appointment of a receiver. The bondholder may hold the works of the district, but not under any circumstances the irrigable lands of individuals in the district until through the only method provided by statute, namely, the levy of taxes, the principal and interest of such bonds shall have been paid. The primary and only source for the payment of bonds is the annual assessments levied and assessed by the board of directors, and unless the holders of bonds can by mandamus, or otherwise, compel such annual levy, they are without an adequate remedy. The meeting of the board of directors as provided for by Section 7328, as amended by Chapter 161, Section 2, Gen. Laws 1925, page 239, to be held “on or before the first Tuesday in September of each year,” is for the purpose of the board making a computation of the amount deemed necessary for district purposes. Under Section 7329, the secretary is required to “give notice of the time the board of directors acting as a board of equalization, will meet for the purpose of levying and correcting its assessment and apportionment of taxes, as in this act provided, by publishing the same in a newspaper, published in each of the counties in which the district is situated. The time when the board shall meet for said purpose shall be the first Tuesday of October following, and in the meantime the assessment list and records shall remain in the office of the secretary of *707 the hoard for the inspection of all persons interested, and all persons shall be presumed to have notice of the time of such meeting, whether he received actual notice or not.” The alternative writ shows affirmatively that the plaintiff appeared in writing' and by attorney before the board of directors at its meeting duly called and held on the first Tuesday in October, 1925, and also appeared in writing and by attorney before the meeting of the board of county commissioners at its meeting held on the fourth day of November, 1925, and filed a written demand with the district equalization board, which is the board of directors of the district, and made a written demand for the levy of a sufficient assessment to pay all interest which shall accrue during the year 1926 on all outstanding bond's of the district, and to retire any of said bonds which shall mature during said year. And that the demand was denied by the board of directors of the district and also by the County Court of Crook County. We think a sufficient demand was made by the plaintiff as a condition precedent to seeking the relief herein. Counsel for defendant maintains the alternative writ fails to negative the alternative source for the payment of bond interest and accruing principal, from issue of refunding bonds, or from ieceipts through the guarantee by the State of Oregon under Article Xl-b of the Constitution of Oregon. The alternative writ plainly alleges the fact that the requirements of the Ochoco Irrigation District for interest to accrue on outstanding bonds during the year 1926 is the sum of $85,500, and that the principal of the bonds which will mature and become payable during said year amounts to the further sum of $25,-000, or an aggregate of $110,500. Funds for these *708 purposes are to be kept separate from the fund for maintenance and operation. In view of the fact that the statute provides primarily one source for the payment of principal and interest of bonds, namely, “the revenue derived from the annual assessments upon the lands in the district” (Section 7326), we think that the ultimate fact alleged is sufficient; and that the plaintiff is not required to negative any other possible source of obtaining revenue by the district, for the purpose mentioned. In the matter of the guarantee of interest by the state, we do not think that that matter is involved. It would not be an excuse for the district’s failure to make the required assessment and levy. Counsel for defendants also argue that the alternative writ does not show that there were no delinquent taxes which, if collected in full, would be sufficient to pay all interest and principal becoming due in 1926. As we understand the statute, instead of delinquent assessments being available ás an asset, at the time of making the annual assessment, it is necessary to make provision for such delinquencies in computing the amount to be raised: Section 7326, Or. L. This question was considered by this court in the case of Noble v. Yancey, decided December 1, 1925, when this court said: “Under the irrigation district law in force at the time of the computation of the assessment, of which the plaintiff complains, chapter 357 of the Laws of 1917, with acts amendatory thereof and supplementary thereto, there were three distinct provisions directing the board of directors to provide for delinquencies in the payment of previous assessments. This is but another way of stating that the lands of the district shall ‘be and remain liable,’ as provided in the old act.” *709 The reliance upon delinquent assessments by an irrigation district for the purpose of paying’ principal and interest of bonds would not be in accordance with the spirit or letter of the statute. The payment of the obligations and bonds of the district which have been regularly incurred and issued should be provided for pursuant to the statute. It is in the interest of every irrigation district in the state that this should be done. Otherwise no bonds of an irrigation district could be sold for anything like a fair price.. The demurrer to the alternative writ of mandamus is overruled. The time fixed by order of this court, to wit, the fifteenth day of December, 1925, for the defendants to show cause, if any exists, why a peremptory writ of mandamus should not issue, having long since expired, and the defendant having wholly failed to show any good cause why the writ should not issue, or why the assessment and levy in question should not be made as prayed for in plaintiff’s petition, therefore the alternative writ of mandamus will be made peremptory. Let the writ issue. Writ Allowed.