Rathfon v. Payette-Oregon Slope Irr. Dist

Mr. Justice Bean 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. 1,2. The improvement company filed a notice in the office of the county clerk to the effect that certain lands, including the plaintiff’s, were contained within the area embraced by the district improvement company and subject to the obligations of that company. Afterward this company proceeded to procure its water right, and at the time of the trial had a complete system, satisfactory to the plaintiff and sufficient to properly irrigate his land. Plaintiff asserts that the irrigation district was organized without his knowl — 609 — edge, and that his lands were included therein and confirmation proceedings had all unknown to him. An irrigation system was also completed by the irrigation district. At the time of the confirmation proceedings mentioned (see Board of Directors v. Peterson, 64 Or. 46 (128 Pac. 837, 129 Pac. 123), it appears that it was considered by the officers of the irrigation district that the lands of plaintiff were not” permanently included within the district. It appears from the transcript in that case that the contract for the sale of bonds contained the following provision: “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 (135 Pac. 461, 463). 3. It is the position of plaintiff that there cannot be at the same time within the same territory two municipal corporations exercising the same powers, jurisdictions and privileges, and they cite 1 Dillon, Mun. — 611 — Corp. (4 ed.), Section 184. Á. conflict arises as to whether the land of plaintiff is included within the irrigation district or within the district improvement company. It involves the construction of the two acts, particularly the irrigation district law, and resort must be had to the facts to determine where the land in question properly belongs. The contention of plaintiff is that, the land being first included within the district improvement company, any attempt made by the irrigation district to include the land therein was without jurisdiction and void. This was upheld by the Circuit Court. 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 (28 Pac. 272, 675, 27 Am. St. Rep. 106, 14 L. R. A. 755); Straw v. Harris, 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 (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 — 617 — made above, however, it will be noticed that at the time of the execution of the contract for the sale of the bonds and the purchase of the irrigation works there was some question raised as to whether or not plaintiff’s lands would be excluded or included from the district, so the purchasers of the bonds had notice of the proceedings. It appears from the record herein that the attorney in fact for the plaintiff forwarded to the County Court of Malheur County a petition on behalf of plaintiff, Rathfon, showing that his lands were included within the district improvement company, and asking that the same be excluded from the irrigation district. As we understand the record, it appears that in order not to delay the organization of the irrigation district, the petition for the exclusion of plaintiff’s lands was held in the hands of the county clerk in abeyance, without being marked “Filed,” until March 9, 1912. It is in evidence that it was then the assurance of the attorney for the irrigation district that after the district was organized the land should be excluded therefrom. Afterward a similar petition was presented to the board of directors of the irrigation district, and it was denied. Plaintiff alleges that his land was fraudulently included within the irrigation district. 4. It is suggested by counsel for defendants that plaintiff is estopped from contending that his lands are not rightfully included within the irrigation district, for the reason that he did not appeal from the order of the board denying his petition therefor. The irrigation district law of 1911, Section 33, provides for no appeal from such an order, and'specially authorizes the board of directors to bring a suit to determine the validity of the action of the County Court and various — 618 — orders of the hoard of directors of said irrigation district including or excluding any lands in or from the district and various other orders. Section 34 of the act authorizes any assessment payer or other interested person to bring a like proceeding in the Circuit Court in the event that the board of directors do not bring such proceedings within 30 days after the entry of the order or performance of any acts enumerated in Section 33. 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 (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 (135 — 619 — Pac. 461, 463). . The defendant district should bear the burden of the irrigation system -without assistance from plaintiff’s land which should be excluded therefrom. 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.