Cannon v. Hood River Irr. Dist.

Mr. Justice Bean delivered the opinion of the court. 1. Section 6186, L. O. L., provides: “The district assessor must, between the first Monday in March and the first Monday in June of each year, assess all the lands situated in the district as hereinafter stated. He must view and assess upon the lands situated in the district a charge sufficient to pay all charges and expenses, and all obligations incurred by virtue * * of the issuing of any bonds, as herein contemplated, for the construction, purchase, or acquisition of any canals, works or property as contemplated in this act. And all lands situated within [75] said district shall he assessed and a charge placed thereon, in the manner herein contemplated, in proportion to the benefit derived by the construction * * of any canals, works or property, according to the benefit of each lot, parcel or tract of land actually and separately received, which charges must be collected and paid into the district treasury and must be placed to the credit of the district, and paid out as in this act provided.” It is contended by plaintiff that the statute pursuant to which the tax was levied is unconstitutional. The law is valid and has been upheld and action thereunder sustained by this court in several cases, namely, Board of Directors v. Peterson, 64 Or. 46 (128 Pac. 837, 129 Pac. 123); Payette-Oregon Slope Irr. Dist. v. Peterson, 76 Or. 630 (149 Pac. 1051); Rathfon v. Payette etc. Irr. Dist., 76 Or. 606 (149 Pac. 1044). Laws of the same purport have been enacted and upheld by the courts in several states. 2. The complaint of plaintiff is a general one. While he alleges that but a small portion of the whole area of the 120-acre tract is susceptible of irrigation, no statement is found as to how many acres can be so irrigated. A portion of his lands being situated so as to be irrigated from the system then being constructed, the same would be benefited thereby. While plaintiff indicates that there is a difference between his land and other tracts assessed in the district, he makes no mention of what the difference is, or whether it is trifling or substantial. He avers that 80 acres of his domain were assessed at $225 an acre, and that other lands in the district were taxed by the same standard of valuation; yet it is not alleged that there was any difference in the location of his property with reference to the canal, or otherwise, or any reason shown why he would, not be benefited to the same extent as [76] other land owners subject to the tax. The first cause of the complaint does not state a cause of suit. 3. The third separate cause of suit, to the effect that the assessor placed a valuation of $225 an acre upon the land when he knew at the time that.it was not worth in excess of $100 an acre, and that the assessment was fraudulently and capriciously made for the purpose of compelling the plaintiff to pay more than his equable share of the taxes, is a mere conclusion. Facts are not stated showing that other acres in the district were not assessed upon the same valuation, and in order for the plaintiff to be injured his assessment must be shown to be out of proportion to that of the other lands taxed. It is not sufficient for the plaintiff to allege that the assessment was fraudulent, but it is incumbent upon him to state the facts upon which such wrong is based. Fraud will not be presumed: Southern Oregon Co. v. Coos County, 39 Or. 185 (64 Pac. 646). 4. The second cause of suit alleges that at the time of the organization of the district the title to the lands was in the government of the United States. It does not show whether at that time the final certificate for the land had been issued by the United States Land Department. Where a homestead entry has been made under the laws of the United States, final proof submitted, and final certificate issued, it operates to transfer an equitable estate, and immediately renders the land liable to taxation, although the United States holds the title until the patent issues: Johnson v. Crook County, 53 Or. 329 (100 Pac. 294, 133 Am. St. Rep. 834); 37 Cyc. 867. 5. However, the tax upon the tract in question was not levied prior to the issuance of the patent. The [77] boundary lines of the irrigation district had been fixed pursuant to the statute in so far as shown by the complaint, and when the title passed from the government of the United States the land was embraced within the limits of the irrigation district just as legally as it was within the limits of the county; and no further proceedings were necessary in order to lay a foundation for levying a tax thereon. If the plaintiff was dissatisfied on account of his land being included within the district, he should have pursued the remedy pointed out by the statute. 6. This is not an action to test the validity of the corporation, and we must assume that the district was legally organized: Oregon S. L. Ry. Co. v. Pioneer Irr. Dist., 16 Idaho, 578 (102 Pac. 904). 7. In Andrews v. Lillian Irr. Dist., 66 Neb. 458 (92 N. W. 612, 97 N. W. 336), where an irrigation district was formed under a law similar to ours, plaintiff claimed that his lands were not susceptible of irrigation, were wet and swampy, requiring drainage, and that irrigation would be injurious. It was held that the equitable powers of the court could not be invoked to relieve the plaintiff from the burden of taxation without benefit until after he had demanded from the district board, and been refused, the right to have his lands set apart from the district. The law governing irrigation districts has been three times amended since the tax in question was levied. 8. Passing the matter of the manner of asserting the complaint, there is another potent reason why the plaintiff cannot enjoin the collection of the tax. One invoking the powers of a court of equity must do equity, and before a taxpayer can be heard to urge the invalidity of a tax and enjoin the collection of an excessive levy, he must first pay or tender for payment [78] the amount legally levied. The plaintiff fails to allege that he has done this: Brown v. School Dist., 12 Or. 345 (7 Pac. 357); Goodnough v. Powell, 23 Or. 525 (32 Pac. 396); Hibernian Ben. Soc. v. Kelly, 28 Or. 173 (42 Pac. 3, 52 Am. St. Rep. 769, 30 L. R. A. 167); Dayton v. Multnomah Co., 34 Or. 239, 247 (55 Pac. 23); Alliance Trust Co. v. Multnomah County, 38 Or. 433, 437 (63 Pac. 498). The complaint is vulnerable to the demurrer. There was no error in the ruling of the lower court, and the judgment is affirmed. Affirmed. Mr. Justice Eakin took no part in the consideration of this case. Mr. Justice Harris did not sit.