Board of Directors of Medford Irr. Dist. v. Hill

• Decision Date: 06 July 1920
• Citation: Board of Directors of Medford Irr. Dist. v. Hill, 190 P. 957, 96 Or. 649 (Or. 1920)
• Parties: BOARD OF DIRECTORS OF MEDFORD IRR. DIST. v. HILL.
• Court: Oregon Supreme Court

190 P. 957

96 Or. 649

BOARD OF DIRECTORS OF MEDFORD IRR. DIST. v. HILL.

Supreme Court of Oregon

July 6, 1920

In Banc.

Appeal from Circuit Court, Jackson County; Frank M. Calkins, Judge.

Proceedings by the Board of Directors of Medford Irrigation District for a confirmation of the regularity and legality of the organization of the district and the issuance of the bonds of the district, in which Dillon R. Hill appeared and answered in objection to the confirmation. Decree of confirmation, and objector appeals. Decree affirmed in so far as it confirmed the organization of the district, and modified and reversed in so far as it affirmed the issuance of the bonds.

This is a proceeding brought in the circuit court of the state of Oregon for Jackson county to confirm the creation and organization of an irrigation district and the election and proceedings authorizing the issue and sale of the bonds of said district in the sum of $1,500,000 for irrigation purposes.

According to the petition for the original organization of the district, and the order of the county court creating the same, the district was to comprise 18,500 acres of land.

An election was called and the district was organized and officers elected. After the organization the board of directors met and adopted a project, designated as the "Big Butte project," for the obtaining of water to irrigate the district, and directed that bonds should be issued in the sum of $1,500,000 for the construction and installation of a system for irrigating the district, and to provide for the payment of the first year's interest on the bonds, and calling an election to determine whether or not the bonds should be issued. At the election the result was favorable to the issuance of the bonds by a small majority.

There is some indefiniteness and uncertainty as to whether the order for a bond election made by the board of directors of the district was tied up definitely by such order to the Big Butte project. The resolution adopting that particular project, and the resolution calling for the bond election were separately stated, but they seem to have been offered as one resolution and acted upon together by the same vote and proceeding.

Thereafter this proceeding was brought in the circuit court to confirm the proceedings before the county court, the action of the board of directors, and the proposed sale of bonds.

Certain of the landowners in the district, and among others the defendant Hill, appeared and contested the proceedings for confirmation, and some of them asked that their land be eliminated from the district, alleging divers grounds therefor.

Pending the final decision upon this confirmation proceeding, the directors concluded that the original project, designated as the "Big Butte project," was not feasible, and rescinded the order adopting that project, and adopted an entirely different one, which is known as the "Little Butte project."

It seems to be conceded that the "Little Butte project" would not furnish water sufficient to irrigate the whole 18,500 acres included in the original boundaries and the directors concluded to permit all of those who were contesting the proceeding in the circuit court to have their lands eliminated from the district, and proceedings were had to that effect.

Just how this result was brought about does not seem to fully appear from the record, but it seems that some of the landowners, holding land to the amount of something over 8,000 acres, had appealed to the Supreme Court from a decision of the circuit court refusing to eliminate their lands from the district, and upon that appeal to the Supreme Court there was a stipulation between such parties and the board of directors that their property should be eliminated and upon such stipulation a decree of this court was so ordered.

The facts as to the change of the project and the elimination and consequent reduction of the irrigation district to about 10,000 acres does not appear from the petition of the board of directors to have such proceedings confirmed; but the defendant, Hill, who is now the contesting party, appeared in the circuit court and filed an answer setting up such proceedings, and making the same the basis of an objection to any order confirming the sale of the bonds of the district.

There was a decree of the circuit court sustaining the proceedings and validating the issuance of the bonds, and from this decree the defendant appeals to this court.

Rawles Moore, of Medford, for appellant.

Lincoln McCormack, of Medford, for respondent.

BENNETT J. (after stating the facts as above).

This proceeding is in the nature of a friendly suit to test the legality of the organization of the district in question and the regularity of the proceedings by which the bonds were authorized. Nevertheless the matter has been presented upon both sides with the utmost good faith and with great earnestness and ability.

The case is a very important one, not only on account of the very large amount of bonds which are involved in this particular proceeding, and the importance of this particular irrigation project to the development of the country in which it is situated, but because it will also establish a rule in relation to the proceedings to authorize the creation of other irrigation districts, and the issuance of bonds for such irrigation projects.

The proceeding is in the nature of a proceeding in rem, and in view of its character and importance we think, before decreeing the validity of these bonds, that it would be and is our duty to examine every question presented by the record, whether discussed in the briefs or not.

At the outset of the case we are met with the contention on behalf of the defendants that the court has no jurisdiction to establish the validity of these proceedings, or declare the validity of the bonds, because, as contended, the notice for the hearing in the circuit court was not published in accordance with the provisions of the act authorizing the proceedings.

Subdivision "a" of section 41, c. 357, Laws 1917, authorizing proceedings of this kind, provides that after the petition for the confirmation shall have been filed by the board of directors--

"the court shall fix the time for the hearing of said petition and shall order the clerk of the court to give and publish a notice of the filing of said petition. The notice shall be given and published for three successive weeks in a newspaper published in the county where the office of the district is situated. The notice shall state the time and place fixed for the hearing of the petition and the prayer of the petitioners, and that any person interested in the organization of said district, or in the proceedings for the issue or sale of said bonds, may on or before the day fixed for the hearing of said petition, demur to or answer said petition."

Subdivision "d" further provides:

"The board of directors may, within the time hereinafter limited, after the order of the county court declaring the organization of any irrigation district hereunder, or declaring the result of any election hereunder, or after the order of the board of directors of such irrigation district including or excluding any lands in or from said district or declaring the result of any election, general or special herein provided for, or after any order of such board of directors levying any assessment, general or special, or ordering the issue of any bonds for any purpose hereunder, or after the order determining any bond issue or providing for the same, or after such bond issue, bring a proceeding in the circuit court of the county in which the district, or the larger portion thereof, is situated for the purpose of determining the validity of any of the acts or things in this section above enumerated. Said proceeding shall be a proceeding in the nature of a proceeding in rem, and the practice and procedure therein shall follow the practice and procedure of suits in equity so far as the same shall be consistent with the determination sought to be obtained except as herein provided.

"Jurisdiction of the said irrigation district, of each and all of the freeholders, assessment payers and legal voters therein shall be obtained by the publication of notice directed to said district and to 'all freeholders, legal voters, and assessment payers within said district' without naming such freeholders, legal voters, and assessment payers individually. Such notice shall be served on all parties in interest by publication thereof for at least once a week for three successive weeks in some newspaper of general circulation published in the county where said proceeding is pending, and jurisdiction shall be complete within ten days after the full publication of said notice as herein provided."

The notice in this case was dated the 16th day of January, 1919, and the time of the hearing, as set therein, was the 8th day of February, 1919. It was published in the Medford Mail Tribune, and the affidavit of publication states that--

"It was published in the regular and entire issue of said newspaper, once each day for three successive weeks; the first publication thereof having been made on the 17th day of January, 1919, and the last publication thereof having been made on the 7th day of February, 1919."

So it will be seen that there was no ten days after the last publication of the three weeks of notice, as required by subdivision "d," supra, and if that subdivision applies the publication was not sufficient.

The provisions of section 41 which we have already quoted are not very definite and certain. There seems to be a duplication between the general provisions and subdivision "a," on the one hand, and subdivision "d," on the other....