# McMahan v. Olcott > Oregon Supreme Court · July 1, 1913 · 65 Or. 537 URL: https://www.frixlaw.com/law-library/cases/6903194 ## Case - **Full name:** McMAHAN v. OLCOTT - **Court:** Oregon Supreme Court - **Decided:** July 1, 1913 - **Citations:** 65 Or. 537; 133 P. 836; 1913 Ore. LEXIS 293 - **Precedential status:** Published - **Opinion:** Concurrence by Burnett - **Judges:** Bean, Burnett, Eakin, McBride, McNary, Ramsey - **Cited by:** 8 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6903194 ## Opinion text Mr. Justice Burnett delivered the following specially concurring opinion: This suit was instituted by the plaintiff as a citizen and taxpayer of the state against the defendants as members of the desert land board to prevent them from expending an appropriation of $200,000 for the year 1913, and an additional sum of $250,000 for the year 1914, in the reclamation of certain desert lands in Crook County, belonging to the state, and to be acquired by it under the desert land law of the general government, commonly known as the Carey Act. The board is said to be proceeding under Chapter 119, Laws of 1913, being “An act to provide for the construction, operation and maintenance and disposal, by the State of Oregon, of the irrigation project in Crook County, Oregon, commonly known as the ‘Columbia Southern Project.’ ” The act purports to be a provision for the reclamation of lands included in Oregon Desert'Land Selection List No. 13. The complaint alleges, in substance, that at various times the state, under then existing statutes, contracted with sundry concerns for the reclamation of these lands, all of which contracting parties failed. It is agreed that 5,600 acres are patented to the state, of which 4,400 acres are irrigable, and 2,314.63 acres have *549 been deeded to private parties. It is alleged by the complaint and admitted that the defendant' Olcott, Secretary of State, threatens to and will, unless restrained, draw warrants on the State Treasurer, and the latter officer will pay those warrants to the extent of $450,000 providing for the construction, operation, and maintenance of the irrigation project described in the act above mentioned. The prayer of the complaint is that the defendants be enjoined and restrained from drawing or paying any such warrants. The answer, together with the stipulation as to the facts, leave no issue to be tried, except the one of law as to whether it is constitutional for the state to provide for the reclamation of the lands in question. The Circuit Court, having heard the parties, entered a decree dismissing the suit, and the plaintiff appeals. As a foreword, it may be set down that the state Constitution is a restrictive instrument and not a grant of power, so that, unless forbidden by the Constitution, the legislature may pass any act which seems to it proper. Further, the court will not hold an act of the legislative branch of the government unconstitutional, unless it is clearly violative of that fundamental law; and lastly that, if an act is constitutional in one part and not in another, the portion which complies with the fundamental law will be enforced and the remainder disregarded. These are judicial platitudes so well settled that it is unnecessary to cite precedents in support of them. At the argument the plaintiff contended that the law in question was a local and special law in the interest of residents of the community in which the land mentioned is situated. The legislative assembly in its discretion may enact laws of that nature, unless forbidden by the state Constitution. That instrument prohibits the legislative assembly from passing them in certain enumerated cases: Sec. 23, Art. IY, Con *550 stitution. The only instance relied upon in the argument was that against the passage of such a law “for the assessment and collection of taxes for state, county, township or road purposes.” The statute assailed by the plaintiff does not in any manner refer to the method of assessment and collection of taxes for the purpose indicated. So far as that is concerned, the appropriation attacked is made out of the general fund of the state treasury not otherwise appropriated. The taxes for this fund are levied and collected under a general law on that subject. Hence the act is not amenable to that objection. Under the authority of Cookinham v. Lewis, 58 Or. 484 ( 114 Pac. 88 , 115 Pac. 342 ), the reclamation and irrigation of arid lands is a matter of public and general interest and an appropriate object of state legislation. The legislative assembly is well within its powers in providing for the improvement and reclamation of the property of the state acquired or to be acquired from the general government under the provisions of the desert land act. It would be a lawful application of public funds to expend them for such purpose. The proposed disbursement of the money of the state for the purpose indicated is all of which the plaintiff complains. It is the mere expenditure of money for the improvement of the state lands, and hence is not loaning the credit of the state within the meaning of Section 7, Article SI, of the state Constitution. The' desert land board may properly expend in a constitutional manner the funds provided for the purpose in question, the same as any other appropriation made by the legislative assembly. If afterward an attempt shall be made to administer the law or to dispose of the state lands in an unconstitutional manner, it will be time enough to decide that *551 question if properly raised; but that matter is not presented by the pleadings before us. The decree of the Circuit Court will be affirmed. Affirmed. Mr. Justice Ramsey concurs in this opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6903194. Public record. Not legal advice.