Board of Directors of the Payette-Oregon Slope Irr. Dist. v. Peterson

• Decision Date: 24 December 1912
• Citation: 128 P. 837,64 Or. 46
• Parties: BOARD OF DIRECTORS OF PAYETTE-OREGON SLOPE IRR. DIST. v. PETERSON.
• Court: Oregon Supreme Court

128 P. 837

64 Or. 46

BOARD OF DIRECTORS OF PAYETTE-OREGON SLOPE IRR. DIST. v. PETERSON.

Supreme Court of Oregon

December 24, 1912

Appeal from Circuit Court, Malheur County; Dalton Biggs, Judge.

Suit by the Board of Directors of the Payette-Oregon Slope Irrigation District for an adjudication as to the legality of the organization of the district, opposed by L.E. Peterson. Decree for complainant, and defendant appeals. Affirmed.

The petitioner herein has attempted to organize an irrigation district, and to issue bonds for the purpose of constructing or purchasing reclamation works, under chapter 7, title 41 being sections 6167-6217, L.O.L., as amended, Laws of 1911 pp. 378-404; and it brings this suit for the purpose of securing an adjudication by the court, under sections 29, 30, 31, of the Amendatory Act (Laws of 1911, p. 401), as to the regularity and legality of the organization of the district and of the proceedings of its board of directors in providing for the issue and sale of the bonds of the district, in which proceedings the court is required to determine the regularity and legality of every step taken in the organization of the district and by its board of directors and all other proceedings which may affect the legality or validity of said bonds. The petition recites the facts as to each step taken in these proceedings. The requirements of sections 29, 30 31, supra, as to the manner of conferring jurisdiction upon the circuit court to determine the regularity and legality of the proceedings, have been fully complied with, and we adopt the findings of fact Nos. 1 and 2 made by the circuit court as the findings of this court in relation thereto. No appearance was made by any one to contest this proceeding except by L.E. Peterson, who questions its regularity on the grounds (1) that the contract for the purchase of its irrigation system from the Snow-Moody Development Company was ultra vires; (2) that the notice calling for the special election for the issue of bonds was ineffectual; (3) that the bonds could be sold only pursuant to public advertisement of the sale; (4) that the change of the boundaries of the district was irregular and void; (5) that the law is unconstitutional and void, in that the qualifications of the electors provided for in the act are in conflict with section 2, art. 2, of the Constitution. At the trial of the case in the circuit court, the only evidence produced was the record of the county court made in the organization of the district and the record of the proceedings of the board thereafter including notices and proofs of service thereof. The circuit court made findings that all the proceedings had by the petitioner under the statute were regular and valid, and rendered a decree to that effect, and defendant appeals.

J.W. McCulloch, of Ontario, Or., for appellant.

Richards & Haga, of Boise, Idaho, for respondent.

EAKIN C.J. (after stating the facts as above).

1. It is contended that the contract for the purchase of the pumping plant was ultra vires, for the reason that the district could not purchase a plant until the plan of the proposed acquisition of works had been outlined, approved by the state engineer, and authorized by the electors.

The board did formulate a general plan of its proposed works and the plan for the acquisition thereof by resolution adopted at the meeting of April 27, 1912. There was no contract consummated at that time, although the terms for the purchase were agreed upon with the Snow-Moody Irrigation Company as a basis upon which to determine the amount of bonds needed; but the purchase was not completed until these things were accomplished, as appears by paragraph 7 of the contract, to wit: "The party of the second part hereby agrees to purchase said pumping plant and irrigation system for the consideration aforesaid, and to comply with all the terms and conditions herein by it to be kept and performed, and as soon as it can legally do so after the receipt of a favorable report from the state engineer of the state of Oregon for the acquisition of said pumping plant and irrigation works, it will without delay call an election in the form and manner required by the laws of Oregon for voting the bonds required to pay for said pumping plant and irrigation works but the entire bond issue shall in no event exceed the sum of two hundred seventy-six thousand dollars ($276,000.00)."

2. Neither is the notice of the special election to determine whether the bonds should be issued fatally defective by reason of the statement therein that the proposed bonds shall commence to mature seven (instead of eleven) years from the date of issue. The law fixes the shortest period in which they may be made to mature at 11 years, and provides that "the board of directors may in its discretion issue said bonds so that they shall commence to mature in eleven years instead of twenty-one years." That question was not properly for decision by the voters, and therefore the error in the notice was not prejudicial.

3. It is also contended that the bonds should have been sold to the highest bidder after 30 days' advertisement thereof, and that the proviso of section 6184, authorizing the board, without offering the bonds for sale to the highest bidder, to use the bonds at par for the purchase of reclamation works or for construction thereof, was not available, as the contract under which it was attempted to deliver the bonds was void, having been entered into prior to the authorization of the bonds and prior to the approval of the purchase by the state engineer. In answer to this objection, it is sufficient to say that no contract of purchase had been made, but if a void agreement of purchase had been made, after the property was lawfully taken over upon the delivery of the bonds at par, the transaction would be legal and valid within the proviso.

4. In enlarging the boundaries of the district by taking in adjacent territory, the description thereof by legal subdivisions of the United States government survey discloses the enlarged boundaries as fully and completely as any survey or description could possibly do; in fact, the original boundaries are given by reference to the exterior lines of the section subdivisions, and not by actual boundary survey.

5. However, a more serious question remains to be considered namely, as to the qualifications of electors within said district; it being contended that, if the organization is municipal, the qualifications of its electors are those prescribed by section 2, art. 2, of the Constitution. The law providing for the organization of irrigation districts in Oregon was first enacted in 1895 (Laws of 1895, p. 13), and was adopted from the California act of 1887, known as the Wright Act, which was an innovation in municipal organization. A similar law has since been adopted by the state of Idaho. In Turlock Irrigation District v. Williams, 76 Cal. 360, 18 P. 379, and in Re Madera Irrigation District, 92 Cal. 296, 28 P. 272, 675, 14 L.R.A. 755, 27 Am.St.Rep. 106, the act is held to provide for the organization of quasi...