TODD et al v. BIGHAM et al, 238 Or. 374

LUSK, J. This is an appeal from an order dismissing, with prejudice, a proceeding commenced by the appellants (hereinafter referred to as petitioners) for the purpose of having judicially invalidated two orders and resolutions of the board of directors of Eagle Point Irrigation District, a municipal corporation within Jackson county, Oregon, and also dismissing appeals from such orders. The petitioners, Howard F. Todd, Add Stone Todd, Paul D.

Conrad, and Earl Wood, describe themselves as “freeholders, legal voters or assessment payers within the Eagle Point Irrigation District.” The defendants (who are referred to in a pleading denominated “Petition in Appeal” as respondents-defendants) are the Irrigation District, its three directors and secretary-manager and “all freeholders, legal voters and assessment payers within or seeking to be included within the Eagle Point Irrigation District.” We will consider first the sufficiency of the appeals.

On November 16,1962, the board of directors of the irrigation district entered an order including lands within the district. On November 19, 1962, the board entered an order certifying the levy of the 1963 district assessment roll as equalized by the board. Petitioners appeared in both proceedings, as was their right, and objected to the entry of the orders. As to inclusion of lands, the applicable statutes are OES 545.584, 545.586, 545.588, 545.592, and 545.594. As to the levy of the assessment, the applicable statutes are OES 545.490 and 545.492.

OES 545.594 provides for an appeal by an objector from the action of the board on a protest against the inclusion of lands. It reads: “

(1) Upon the allowance of the petition and in case no protest has been filed with the board ■within 30 days after entry of the order, a certified copy of the order of the board of directors making such change shall be filed for record in the office of the county recorder of each county in which are situated any lands of the district. The district as so changed and all lands therein shall be liable for all existing obligations and indebtedness of the organized district. “

(2) From the action on a protest an appeal may he taken in the same manner as is provided in case of proceedings affecting the organisation of a district.

If the protest is not made within 30 days and appeal taken to the circuit court from action on the protest within 30 days after final hearing, the order of inclusion shall be deemed lawful and conclusive against all persons and thereafter shall not be in any manner questioned in any proceedings.” (Italics added.) On December 14, 1962, the petitioners, by their attorneys, directed to and caused to be served on the directors and the secretary-manager of the district and “Day & Courtright, their Attorneys” a notice of appeal reading as follows: “You will please take notice that an appeal is taken to the Circuit Court of the State of Oregon for Jackson County in those Matters and relating to those Orders above specified, and that Petition in Appeal was filed with the Clerk of said Court on December 14, 1962.” The notice of appeal is entitled “In the Circuit Court of the State of Oregon for Jackson County,” and the matters and orders referred to in the notice, namely, the orders challenged by the petitioners, are described in the caption.

On January 14, 1963, the defendants irrigation district and its officers filed a motion “by and through their attorney Ben Day of Day and Courtright” for an order “dismissing with prejudice the Petition in Appeal.” A memorandum of authorities supporting the motion was filed therewith. On the eleventh day of March, 1963, the court rendered a written opinion and entered its order of dismissal. The circuit court grounded its dismissal of the appeal from the inclusion order, in part, upon the failure of the petitioners to file an undertaking for costs.

The petitioners argue that the statute does not require an undertaking, citing State v. Vincent et al, 141 Or 107, 110, 16 P2d 636, where it is correctly stated that unless an undertaking is required by statute or valid rule of court it is not a necessary step in perfecting an appeal. It is to be observed that in State v. Vincent the state was the appellant and the case was governed by a statute expressly exempting the state from the requirement to give an undertaking on appeal.

Here the statute provides that an appeal may be taken from an inclusion order “in the same manner as is provided in case of proceedings affecting the organization of a district.” ORS 545.594. An order of the county court in such proceedings shall be “subject to an appeal to the circuit court within 10 days from the entry of the order.” ORS 545.006 (2). The manner of taking such appeal, while not expressed, is, we think, necessarily implied. The order of the county court in proceedings affecting the organization of an irrigation district is made in the course of a judicial proceeding, Smith et al. v.

Hurlburt et al, 108 Or 690, 701, 217 P 1093; Fallbrook Irrigation District v. Bradley, 164 US 112, 170-175, 17 S Ct 56, 41 L Ed 369; Miller & Lux v. Board of Supervisors, 189 Cal 254, 208 P 304; Imperial Water Co. v. Supervisors, 162 Cal 14, 120 P 780; Re Harper Irriaation District, 108 Or 598, 618, 216 P 1020.

ORS 5.120 provides: “A party to a judicial proceeding in a county court may appeal from a decree or other final determinative order given therein.” The manner of prosecuting such appeal — the necessary steps, including the filing of an undertaking- — -is then prescribed by reference to the statutes governing appeals from the justice’s court. We think that the intention is clear that these requirements apply to an appeal from an order in an organization proceeding and, hence, to an appeal from an inclusion order.

Unlike the procedure on appeal to the Supreme Court from a judgment of the circuit court, both under the former practice, and since the enactment in 1959 of the new code of appellate procedure, ORS 19.005 to 19.190, the filing of an undertaking for costs on appeal from the justice’s court to the circuit court, as prescribed by ORS 53.030, has always been considered jurisdictional. Moltzner v. Cutler, 154 Or 573, 61 P2d 93; Nicholson v. Newton, 71 Or 387, 142 P 614; Gobbi v. Refrano, 33 Or 26, 52 P 761; Odell v. Got frey, 13 Or 466, 11 P 190.

Failure of the petitioners to comply with this requirement made dismissal of the appeal from the inclusion order mandatory. For like reason, and an additional one, the appeal from the order levying the assessment was properly dismissed. ORS 545.490 authorizes the board of directors of an irrigation district to sit as a board of equalization and hear and determine objections of interested persons to the assessments and apportionments. ORS 545.492 provides that a person interested in or affected by an order of the board when so sitting may appeal to the circuit court from such order.

Notice of appeal must be filed with the secretary of the irrigation district within five days from the date of the order appealed from and must be accompanied by a bond for costs. Neither of these conditions was complied with and the circuit court, therefore, never acquired jurisdiction of the appeal. We next consider the court’s ruling so far as it affects the so-called “Petition in Appeal.” It is first to be observed that no such hybrid as a “Petition in Appeal” is known to the statute.

Apparently the petitioners, being uncertain as to the proper way to proceed, have attempted to reach the circuit court by both routes, that is, by appeal and by an original proceeding under what is known as the Confirmatory Act, ORS 548.105-548.115. There can be no objection to a litigant taking such precautions, but obviously the two procedures cannot be combined into one, as petitioners have attempted to do, by making their so-called “Petition in Appeal” a part of their notice of appeal.

We are not, however, for that reason precluded from examining the record for the purpose of determining whether the petitioners have properly invoked the jurisdiction of the court under the sections of the statute just referred to. ORS 548.105 provides that the board “may by petition commence special proceedings in the circuit court of the county in which the office of the district is located for the purpose of having a judicial examination and judgment of the court as to the regularity and legality” of (inter alia) an order “including or excluding any lands in or from the district” (1) (

d) or an order “levying any assessment, general or special” (1) (e). ORS 548.110 (1) provides that the proceedings shall be in the nature of a proceeding in rem and “* * * The jurisdiction of the irrigation district * * * and of all the freeholders, assessment payers and legal voters therein shall be obtained by publication of notice directed to the district, and to ‘all freeholders, legal voters and assessment payers within the district,’ without naming them individually.

The notice shall be served on all parties in interest by publication for at least once a week for three successive weeks in some newspaper of general circulation published in the county where the proceeding is pending. Jurisdiction shall be complete within 10 days after full publication.” We quote in full ORS 548.115: “

(1) Any freeholder, legal voter or assessment payer within an irrigation district or drainage district may, within 30 days after the entry of any order or the performance of any act mentioned in ORS 548.105, for which a contest is by that

section provided, may bring a like proceeding in the circuit court of the county where the lands embraced within such district, or the majority thereof, are situated, to determine the validity of such order or act. In such, proceedings the hoard of directors shall be made parties defendant. “

(2) Service of summons shall be made on the members of the board personally if within the county where the district, or any part thereof is situated. As to any directors not within the county, service may be had by publication of summons for a like time, and in like manner, as is provided by OKS 548.110. Service shall be deemed complete within 10 days from the date of personal .service, or within 10 days from the date of completion of publication, as the case may be. “

(3) The proceedings shall be tried and determined in the same manner as proceedings brought by the irrigation district or drainage district itself. “

(4) No contest of any proceeding, matter or thing provided by OKS 548.105 to be had or done by the board of directors or supervisors or by the district, or by the county court, or by any freeholder, legal voter or assessment payer within the district, shall be had or maintained at any time or in any manner except as provided in OKS 548.105 to 548.115.” The so-called “Petition in Appeal” may properly be viewed as an attempted special proceeding under OKS 548.110-548.115.

It seeks a judicial examination and judgment of the court as to the regularity and legality of the orders of the board of directors respecting the inclusion of lands within the district and the levying of the 1963 assessment. These are questions which may be determined in such a proceeding, OKS 548.105 (1) (

d) and '(e). The proceeding was brought within 30 days after the entry of such orders, as required by OKS 548.115. The circuit court held that the petition should be dismissed for two reasons: First, that this special proceeding is available only to one who seeks judicial confirmation of the action of the board, not to one who attacks its action; and, second, that the court did not acquire jurisdiction of the subject matter because the requirement of publication of notice to all the freeholders and other interested persons was not complied with.

We agree with the circuit court as to the second reason, but not as to the first. Confirmation proceedings were first authorized by Oregon Laws 1911, ch 223, §§ 33-35.

Section 34 provided that if such proceedings “shall not have been brought by the board of directors within thirty days after the entry of the order or performance of any acts in said

Section 33 enumerated, and for which a contest is by said

section provided, then any district assessment payer or other interested person may bring a like proceeding”, etc. The statute, as it now reads, was originally enacted as Oregon Laws 1919, ch 390, which fixed a time limitation of 30 days within which an interested person might bring such a proceeding and this without regard to whether the board of directors had done so or not. The defendants argue that the title of the 1919 act supports their position.

It reads: “Providing for a judgment of confirmation by the circuit court of the organization of irrigation districts and drainage districts and the subsequent proceedings of irrigation districts and drainage districts * * *.” The words relied on are “providing for a judgment of confirmation.” But no one would argue that the act does not apply even though in a particular case the judgment of the court should invalidate, rather than confirm, some challenged action of the board.

The act clearly contemplates a contest and a judicial examination which may result unfavorably to the board, no matter who initiates the proceeding. Where it is brought by an assessment payer or other interested person, it is provided that the members of the board shall be made parties defendant, OES 548.115, evidently, as we think, to assure the presence in the case of someone to defend the board’s action. We took our irrigation district act from California and the decisions of the courts of that state are highly persuasive in construing our act, Twohy Bros. Co. v. Ochoco Irr.

Dist. et al., 108 Or 1, 12, 210 P 873, 216 P 189; Harney Valley Irr. Dist. v. Bolton, 109 Or 486, 493, 221 P 171. The provisions for a confirmatory judgment in the existing California act (commonly known as the Bridgeford Act) may be found in General Laws of California, 1923, Part One, p 1471, Act 3854, §§ 68-72. In

section 69, which provides for the bringing of a proceeding by an assessment payer, the California statute is more explicit than ours as to the purpose of making the board of directors parties defendant.

Section 69 says: “Said board shall have the right to appear and contest such action.” Having in mind the identical purpose to be accomplished by the statutes of both states, we think that the construction should be the same. The right of an assessment payer to contest the validity of an order of the board of directors under the California statute seems never to have been questioned. Imperial Land Co. v. Imperial Irr. Dist., 173 Cal 660, 161 P 113; Miller & Lux Inc. v. Secara, 193 Cal 755, 764, 227 P 171; Miller & Lux v. Board of Supervisors, supra, 189 Cal at 262.

We think that OES 548.115 affords a similar right. On the other hand, the words in the title of the act, “providing for a judgment of confirmation,” apply equally to a proceeding brought by an assessment payer or other interested person as to one brought by the board of directors and indicate that the object of the act is the same in both eases. That object was stated in Harney Valley Irr. Dist. v.

Bolton, supra, 109 Or at 491-492 (a proceeding brought by an irrigation district to secure a judicial determination of the legality of a bond issue): “The object of the confirmation proceeding is to require every owner of real property in the district to come into court and, within the time limited, to appear, present and submit to judicial investigation any and all objections he may have to the regularity of the election for bonding the district, so that it may be finally and conclusively determined by judgment whether he or his successors in interest can thereafter question the legality of such bonds: Modesto Irr.

Dist. v. Tregea, 88 Cal. 384 (26 Pac. 237); 164 U.S. 179 (41 L. Ed. 395, 17 Sup. Ct. Rep. 52, see, also, Rose’s U. S. Notes).” When a confirmation proceeding is brought by a freeholder, assessment payer or legal voter pursuant to OES 548.115, the object is no different and cannot be attained unless all interested persons are given notice and an opportunity to be heard. That

section authorizes a “like” proceeding to one brought by the board of directors of the district and clearly intends that the procedure delineated in OES 548.110, including the publication of notice to all interested parties, must be followed. Without such notice the court cannot proceed and settle the controversy, if there be one. Medford Irr. Dist. v. Hill, 96 Or 649, 190 P 957, is cited by petitioners as opposed to this construction.

The proceeding in that case was commenced by an irrigation district “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 * * *.” 96 Or at 651. Notice was published to “all freeholders” etc., OES 548.110, but the court found that the notice did not comply with the statute and was insufficient to give the court jurisdiction over all interested parties.

Nevertheless, because the defendant Hill had appeared and answered in the cause it was held that this was “sufficient to give jurisdiction as between him and the board of directors,” and the court, therefore, to avoid “unnecessary delay” proceeded to decide the question at issue as between Hill and the petitioners. 96 Or at 657. This decision has never been cited on the point with which we are now concerned and it is difficult to justify it.

As the result of the court’s treatment of the case it ceased to be a special proceeding under the statute and apparently became an ordinary piece of litigation maintained and decided under the circuit court’s general jurisdiction. It was no longer a proceeding in rem, OES 548.110, or one in which a judgment could be rendered binding upon “every owner of real property in the district,” Harney Valley Irr. Dist. v. Bolton, supra.

And all this was done despite the express prohibition of ORS 548.115 (4): “No contest of any proceeding, matter or thing provided by OES 548.105 to be had or done by the board of directors or supervisors or by the district, or by the county court, or by any freeholder, legal voter or assessment payer within the district, shall be had or maintained at any time or in any manner except as provided in OES 548.105 to 548.115.” As authority for the petitioner’s position in the present ease, Medford Irr. Dist. v. Hill proves too much.

If it were to be followed it would establish the principle that neither an irrigation district nor a court is bound to respect the plain limitations of a statute enacted in the exercise of the legislature’s acknowledged power. The petitioners contend that, even though under ordinary circumstances they might be required to publish the statutory notice, it was not necessary in this case because the motion to dismiss was filed not only on behalf of the named defendants, but also of all persons interested, and all, therefore, made a general appearance and submitted themselves to the jurisdiction of the court.

This contention is based upon the fact that the motion was signed by “Ben Day Of Day and Courtright Attorneys for respondents defendants” and the latter included “all freeholders, legal voters and assessment payers within or seeking to be included within” the district. Counsel for the district and its officers assure us in their brief that they were not authorized to represent anyone else and that they so advised the circuit judge.

Their brief in this court is signed as “Attorneys for respondent Eagle Point Irrigation District and its officers.” To us it would seem rather extraordinary that the attorneys for an irrigation district should also be authorized to represent in litigation all the freeholders, legal voters and assessment payers within the district. We think that the record justifies this court in accepting their assurance that they had no such authority. The notice of appeal from the orders of the board, prepared and served by counsel for petitioners, and which refers to the “Petition in Appeal” was directed to “Elbert M.

Bigham, Phillip Nevin and Stanley Straus, as Directors, and L. R. Silveira as Secretary-Manager, all of the Eagle Point Irrigation District, and to Day & Courtright, their Attorneys.” The affidavit of service by mail filed by counsel for the petitioners likewise showed their understanding that Day and Courtright were attorneys only for the irrigation district and its officers. We are of the opinion that Mr. Day inadvertently described his firm as attorneys for the “respondents defendants” when he had authority to appear only for the irrigation district and its officers.

Even though the petitioners’ construction of ORS 548.115 were to be sanctioned, their right to proceed under this

section could not be sustained. To do so would be tantamount to holding that they had a choice of remedies, either by appeal to the circuit court from the challenged orders or by an original proceeding under the Confirmatory Act. The express language of ORS 545.594 (2) does not admit of such a solution. It is there provided that if a “protest is not made within 30 days and appeal taken to the circuit court from action on the protest within 30 days after final hearing, the order of inclusion shall be deemed lawful and conclusive against all persons and thereafter shall not be in any manner questioned in any proceedings.” (Italics added.) There is no similar provision in the

section granting a right of appeal from an order of the board levying an assessment. But we think that under settled rules of statutory construction it must be held that here, also, the remedy by appeal was intended to be exclusive. The provisions of ORS 548.115 (4) and ORS 545.594 (2) are in irreconcilable conflict. In that state of affairs the court can but use its best judgment as to which should prevail.

No valid reason occurs to us why, contrary to the ordinary legislative decision in such matters, it should be presumed that a person who has been granted a right of appeal has also been accorded an alternative method of proceeding for the purpose of correcting a determination claimed to be erroneous. We are not persuaded that tbis was the legislative intent. In view of these conclusions it is unnecessary to discuss the petitioners’ motion for reconsideration filed in the circuit court after that court announced its decision and the denial of which is asserted to be erroneous.

The order of the circuit court is affirmed.