Buell v. Jefferson County Court

• Decision Date: 24 October 1944
• Citation: 154 P.2d 188,175 Or. 402,152 P.2d 578
• Parties: BUELL <I>v.</I> COUNTY COURT OF JEFFERSON COUNTY ET AL.
• Court: Oregon Supreme Court

175 Or. 402

152 P.2d 578

154 P.2d 188

BUELLv.

COUNTY COURT OF JEFFERSON COUNTY ET AL.

Supreme Court of Oregon.

Argued September 20, 1944.

Reversed October 24, 1944.

Rehearing denied December 12, 1944.

Mandamus

1. "Mandamus", though classed as a legal remedy in the nature of an action at law, is an extraordinary remedial process which is granted, not as a matter of right, but in the exercise of sound judicial discretion and upon equitable principles.

Action

2. The distinction between actions at law, suits in equity, and special proceedings preserved in enacting the Civil Code of Procedure in 1862 has been continued in subsequent compilations, and the pleading and practice prescribed for special proceedings differ from those provided for in ordinary actions.

Mandamus

3. Statutes of limitation do not apply to a mandamus proceeding.

Mandamus

4. Mandamus proceedings, though not subject to statutes of limitation, are nevertheless subject to equitable doctrine of laches.

Mandamus

5. Application for writ of mandamus should be made seasonably and within a reasonable time after alleged default or neglect of duty, and delay which is detrimental or prejudicial to rights of defendant or others interested may be sufficient cause for denial of the writ.

Mandamus

6. Proceeding for peremptory writ of mandamus requiring county court to make assessment and levy on land in irrigation district sufficient to pay principal and interest on bonds and warrants issued by district was barred by laches, where proceeding was instituted 14 years after last assessment and issuance of most recent warrants held by plaintiff, and 13 years after his bonds became payable, delay was unexplained, and in meantime more than half of lands in district had passed into ownership of the United States and county and state had acquired large part of remainder.

Waters and water courses

7. Action to reduce to judgment claims, represented by irrigation district warrants which are general obligations of the district

payable out of its general funds, may be instituted immediately after issuance thereof.

Waters and water courses

8. Lands within irrigation district which were designated as public or which were owned by the United States resettlement administration were not "public lands" subject to entry within federal statute making such land subject to state laws relating to irrigation, and hence were not subject to assessment to pay debts of district, notwithstanding state law making public lands within irrigation district, whether entered or not entered, subject to taxation for irrigation purposes.

ON PETITION FOR REHEARING

Mandamus

9. Mandamus to compel assessment and levy on property within irrigation district sufficient to pay bonds and warrants issued was barred by laches, where the warrants and bonds were general obligations of the district payable on date certain and maturity of neither bonds nor warrants was dependent upon the happening of any future event, and proceeding was not instituted until 13 years after bonds became due.

Appeal and error

10. Contention that the Supreme Court did not give proper weight to the findings of the trial court, in reversing a judgment, was without merit, where there were no findings and the judgment was based on stipulation of facts and the Supreme Court's opinion was that the trial court's conclusion was not supported by the facts.

                  See 98 A.L.R. 466; 35 Am. Jur. 65
                  1 C.J.S., Actions, § 42; 4 C.J.S., Appeal and Error, § 1411
                

Before BAILEY, Chief Justice, and BELT, ROSSMAN, KELLY, LUSK, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Jefferson County.

C.L. SWEEK, Judge.

Proceeding by W.E. Buell against the county court of Jefferson County and others for peremptory writ of mandamus requiring the court to make an assessment and levy on property within Suttles Lake Irrigation District sufficient to pay principal and interest on bonds and warrants issued by the district and owned by plaintiff. From a judgment granting and directing a peremptory writ, defendants appeal.

REVERSED. REHEARING DENIED.

H.H. DeArmond, of Bend (DeArmond & Goodrich, of Bend, and Boyd Overhulse, of Madras, on the brief), for appellants.

Cedric Miller, of Vancouver, Wash., and Orville T. Boyle, of Portland, for respondent.

BAILEY, C.J.

This proceeding was brought by the plaintiff, W.E. Buell, against the county court of Jefferson county, Oregon, and the individual members thereof, for a peremptory writ of mandamus requiring that court to make an assessment and levy on the property within the Suttles Lake irrigation district sufficient to pay the principal of, and interest on, bonds and warrants issued by that district and owned by the plaintiff. From a judgment granting and directing a peremptory writ the defendants have appealed.

The question here presented is whether the statute of limitation is a bar to the relief sought by the plaintiff, and, if not, whether relief should be denied because of delay in instituting this proceeding.

There is no dispute as to the facts. Suttles Lake irrigation district was organized in April, 1915, and contained approximately 35,000 acres of arid land in Jefferson county. The purpose of its organization was to build and develop an irrigation system serving that acreage. Bonds in the sum of $750,000 were authorized by the district and thereafter, for preliminary investigation, bonds in the sum of $7,100 were issued and sold, of which amount the district has redeemed a total of $4,000. Of those outstanding the plaintiff owns bonds in the sum of $1,400, dated January 1, 1917, with maturity date of 1928 and with interest payable semiannually at the rate of six per cent per annum, represented by interest coupons. No payments have been made of principal or interest on the bonds owned by the plaintiff.

To defray expenses of the district, warrants have been issued totaling in excess of $28,000, of which amount the district has paid over $21,000. The plaintiff is the owner of such warrants to the amount of $4,561.59, of which a total of $4,227.27 is dated 1924, and the most recent warrant is dated April 11, 1927. Immediately upon their issuance the warrants were presented to the county treasurer for payment, which was refused for want of funds. Notation to that effect was made on each such warrant by the county treasurer and all were registered by him. The validity of the bonds and warrants is not questioned.

The board of directors of the irrigation district, beginning in 1919 and continuing through 1927, every year caused an assessment and levy to be made "for the purpose of paying the expenses of the district, and for all other purposes, including redemption of bonds, and ... the total of said assessments" exceeded "the amount of bonds and warrants issued by the district." The assessments were certified to the county assessor of Jefferson county and were placed by him on the assessment rolls of that county. A considerable part of the amount levied has not been paid and is delinquent.

During the period when those assessments and levies were made, practically all the lands within the district were in private ownership. However, during those years there were numerous changes of owners and changes in the personnel of the board of directors of the district. On November 5, 1941, when this proceeding was instituted, 13,342 acres of the land were privately owned; 400 acres were owned by the state highway commission; 3,595 acres by Jefferson county; and 10,720 acres were owned by the United States resettlement administration, in addition to 7,120 acres classed as "public lands."

At present the district does not have sufficient funds to retire any of the plaintiff's warrants or bonds. Moreover, there are other past due and unpaid bonds and warrants of the district outstanding, the principal of which aggregates $3,773.03. Prior to the institution of this proceeding the plaintiff made demand upon the defendant county court, on a date not specified, to make an assessment and levy upon the lands within the boundaries of Suttles Lake Irrigation district sufficient to pay his bonds and warrants with accrued interest.

The duty is imposed upon the board of directors of an irrigation district, to be discharged each year on or before the first Tuesday in September, to make a computation of the whole amount of money necessary to be raised by the district "for the ensuing year for any and all purposes whatsoever in carrying out the provisions" of the statute governing such districts, "including estimated delinquencies on assessments": § 125-801, O.C.L.A.; Noble v. Yancey, 116 Or. 356, 241 P. 335, 42 A.L.R. 1178; Kollock v. Barnard, 116 Or. 694, 242 P. 847. The amount of money necessary to be raised by the district each year when determined by the board constitutes an assessment on all the lands included in the district: § 125-801, supra. In the event that the amount assessed against any tract of land is not paid, the next assessment shall be increased so as to cover that default: § 125-604, O.C.L.A.

After the board of directors has completed its equalization of the assessment it is required to certify the same to the county assessor of the county in which the lands are located; and it thereupon becomes the duty of the county assessor to enter the same on the assessment rolls of the county: § 125-805, O.C.L.A. In case of the neglect or refusal of the board of directors to cause such assessment and levy to be made, that duty devolves upon the county court of the county in which the office of the board of directors is situated, "in the same manner that said court levies county taxes with like effect as the board of directors is required to make the same." For the reason that payments on the assessments and levies made were insufficient to retire the warrants and bonds involved in this litigation, the plaintiff brought this proceeding against the county court and its individual members...