# Todd v. Bigham

> Oregon Supreme Court · September 10, 1964 · 238 Or. 374

URL: https://www.frixlaw.com/law-library/cases/9633551

## Case

- **Full name:** TODD Et Al v. BIGHAM Et Al
- **Court:** Oregon Supreme Court
- **Decided:** September 10, 1964
- **Citations:** 238 Or. 374; 395 P.2d 163; 390 P.2d 168; 1964 Ore. LEXIS 449
- **Precedential status:** Published
- **Opinion:** On rehearing by Lusk
- **Judges:** McAllister, Rossman, Perry, Goodwin, Lusk, Sloan, O'Connell, Denecee
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9633551

## Opinion text

ON REHEARING
*391 William M. Sloan, Grants Pass, argued the cause for appellants.
Ben Day, Medford, argued the cause for respondents Eagle Point Irrigation District and its officers.
Before McAllister, Chief Justice, and Rossman, Sloan, O’Connell, Goodwin, Denecee and Lusk, Justices.
LUSK, J.
A rehearing of this case was granted. Upon further consideration, we have concluded that in certain particulars our former opinion should he modified.
The Confirmation Act, ORS 548.105-548.115, which authorizes a special proceeding to secure a judicial determination of the validity of certain orders and acts — among others, an order of the district hoard including lands in the district and an order of the *392 board levying an assessment — provides in OES 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 to the inclusion of lands, the statute provides for the publication of notice of the filing of the petition to all persons interested and the right to file objections and a hearing thereon, OES 545.586 and 545.588. OES 545.594 (2) reads:
“From the action on a protest an appeal may be taken in the same manner as is provided in case of proceedings affecting the organization 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.”
The plaintiffs filed objections to the proposed inclusion of lands and after these were overruled filed notice of appeal to the circuit court within 30 days, but failed to file an undertaking, a jurisdictional requirement. Their appeal was therefore dismissed, and, as we held, rightly so.
We found irreconcilable conflict between OES 548.115 (4) and OES 545.594 (2), each providing, as it does, an exclusive procedure for attacking an inclusion order. But since the latter section is concerned solely and specifically with such an order, we thought, and still think, that it should be given preference over *393 the former, or, to put it another way, that it must be construed as an exception to the restrictions of the former.
Plaintiffs argue that this construction renders the Confirmation Act of little consequence so far as that act relates to inclusion orders. For, it is said, the persons who would be concluded by the order of the district board under 545.594 (2) are the very persons who have the right to contest the validity of the inclusion order in a proceeding under the Confirmation Act, OPS 548.110 (2). Not only would such persons be barred from commencing such a proceeding, but they would not be permitted to contest such an order in a special proceeding commenced by the district board, or by any of the persons authorized by the statute to do so.
If such a dilution of the Confirmation Act is the necessary consequence of our decision, so be it. Courts go a long way at times to harmonize apparently conflicting statutory provisions, but they do not, or at least should not, rewrite statutes, even to accomplish what may appear to be a desirable result. That is the job of the legislature.
An accepted rule of statutory construction is that
“* * * where there is in the same statute a specific provision, and also a general one which in its most comprehensive sense would include matters embraced in the former, the particular provision must control, and the general provision must be taken to affect only such cases within its general language as are not within * * * the particular provision. * * *” 50 Am Jur 371, Statutes § 367.
It is difficult to apply that rule here, for the general language of OPS 548.115 (4) is quite as specific, when *394 read with the other provisions of the Confirmation Act, in its reference to inclusion orders as is the general language of ORS 545.594 (2).
But a feature of the legislation that cannot escape attention is this: The orders and acts which may he judicially examined in a proceeding under the Confirmation Act are those relating to:
(1) the organization of the district,
(2) the issue and sale of bonds,
(3) the action or proceeding of the county court declaring the organization of the district,
(4) the inclusion or exclusion of lands,
(5) assessments,
(6) another provision regarding bonds, and
(7) a contract with the United States. ORS 548.105.
Appeals from certain orders are provided for, e.g., the order of the county court respecting the initial steps for organization of a district, ORS 545.006, and assessments, 545.492. But in the entire irrigation district statute the only provision giving conclusive effect to an unappealed order and prohibiting the questioning of such an order in any other proceeding is the one with which we are now dealing relating to the inclusion of lands. We cannot say that the legislature did not intend that this provision should be given effect.
Nothing in the legislative history gives aid to construction. The confirmation provisions and the inclusion provisions came into the law at the same time: Oregon Laws 1911, ch 223. The former in sections 29-35 of that act, the latter in sections 17-24. No significant change was made until 1919 when the confirmation provisions were removed by repeal from the *395 irrigation district law and reenacted as part of a separate statute, which applies to drainage districts as well as irrigation districts: Oregon Laws 1919, eh 390 (now OES 548.105-548.115). A rule of statutory construction says that if a subsequent act is in irreconcilable conflict with the act under consideration the subsequent act must prevail: 2 Sutherland, Statutory Construction 539, § 5202. But since the obvious reason for the re-enactment was one of draftsmanship, that is, to avoid what was no doubt considered the incongruity of including a law pertaining to drainage districts in a comprehensive statute governing irrigation districts, the 1919 act can hardly be considered a “subsequent” act in the sense of that rule.
There is no controlling precedent in the decisions of this court. While all the states having irrigation-district laws have adopted confirmation acts similar to that of California, ① from which we took our Act, none has a provision similar to OES 545.594 (2). Hence, there are no cases on the question in any of the other Western States.
Northern Pac. Ry. Co. v. J. Day Irr. Dist., 106 Or 140 , 211 P 781 , relied on by the plaintiffs, was, so far as pertinent here, a collateral attack upon an assessment claimed to be void as violative of provisions of the Federal and State Constitutions and because of alleged defects in the organization of the district. In addition to other reasons for refusing to sustain the plaintiffs’ position, the court pointed out that the plaintiffs had failed either to appeal from the organ *396 izational order, to test it by writ of review or by proceeding under the Confirmation Act, and likewise had failed to avail themselves of the remedy given by the Confirmation Act for testing the legality of the assessment. (At the time this case was decided, 1923, there was no statutory right of appeal from an assessment. Such an appeal was first provided for by Oregon Laws 1937, ch 132, '§ 6, now ORS 545.492.) The court had no occasion to, and did not in any way, pass upon, or even refer to, the construction of ORS 545.594 (2).
Noble v. Yancey, 116 Or 356 , 241 P 335 , 42 ALR 1178 (1925), was an original proceeding in mandamus in this court in which the question was presented whether the bonds of an irrigation district were general obligation bonds and, as incidental thereto, whether an assessment was valid. The court called attention to the provision of the Confirmation Act for contest of an assessment (the exclusive effect of which was argued by the intervenor in his brief) but left the matter there and went on to decide that the assessment was valid and the bonds general obligation bonds. The case is referred to in Young et al v. Gard et al, 129 Or 534 , 277 P 1005 , but the court there pointed out, in answering a contention that the only remedy of the plaintiff was under the Confirmation Act, that the contest was not one which came within the purview of that act.
On the argument counsel for the plaintiffs called attention to the word “thereafter” in the clause of ORS 545.594 (2), which reads:
“* * * 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.)
*397 It is contended that the reference is to 30 days after the making of the inclusion order and, as the plaintiffs commenced their special proceeding within such period of 30 days, the prohibition of the section does not apply to them. The suggested construction is inadmissible because the plantiffs were “questioning” the inclusion order by their proceeding under the Confirmation Act after the lapse of the 30-day period and are still questioning it.
We adhere to the construction of OES 545.594 (2) heretofore announced. But one matter adverted to •by counsel for the defendants on the rehearing remains to be noticed. It was argued, in answer to the plaintiffs’ contention that our decision impaired the efficacy of the Confirmation Act, that relief under that act would still be available to dissidents where objection to the inclusion order was based on jurisdictional grounds. This, of course, is true in any case where there is failure to comply with some statutory requirement — whether of notice or otherwise — which could not have been constitutionally omitted by the legislature. See Imperial Land Co. v. Imperial Irr. Dist., 173 Cal 660, 161 P 113 ; Argyle et al. v. Bonneville Irr. Dist. et al., 74 Utah 480 , 280 P 722 ; Scilley v. Red Lodge-Rosebud Irr. Dist., 83 Mont 282 , 272 P 543 ; 94 CJS 288, Waters §319(5). Cf. Hughes v. Aetna Casualty Co., 234 Or 426, 447-452 , 383 P2d 55 ; Elliott v. Clement, 175 Or 44 , 149 P2d 985 , 151 P2d 739 . Indeed, as the irrigation district cases above cited illustrate, a party asserting such a defect which resulted in a violation of his constitutional rights would not be limited to a proceeding under the Confirmation Act, but could challenge the alleged invalid action by any appropriate proceeding in a court of general jurisdiction. It is possible — though we express no opinion on the sub *398 ject — that one or more of the numerous objections to the inclusion order set forth in the plaintiffs ’ petition have a jurisdictional basis of this sort. If so, the plaintiffs are entitled to proceed with their action and have such questions adjudicated whether the proceeding be regarded as brought under the Confirmation Act or otherwise.
As to the assessment order, we have concluded upon reconsideration that we erred in holding that plaintiffs’ exclusive remedy was by appeal. In fact, the arguments of counsel on both sides have engendered doubt in our minds as to whether an appeal was available to them at all, since the assessment challenged was not against their own lands, but the lands of others. Be that as it may, the statute giving the right of appeal does not provide in terms that appeal shall be an exclusive remedy, as does the statute regarding inclusion orders; and we think that it will do no violence to the intention of the legislature to hold that remedy is open to one complaining of an assessment to attack the order either by appeal or by a proceeding under the Confirmation Act. To so hold would be a proper application of the well-established rule that it is the duty of courts to harmonize, if possible, apparently inconsistent provisions of the same statute: State ex rel. Appling v. Chase, 224 Or 112, 117 , 355 P2d 631 .
After the order of dismissal was entered by the circuit court, the plaintiffs moved the court to open up the case and authorize publication of notice of the pendency of the proceeding in accordance with the provisions of the Confirmation Act. The motion was denied. Under the lower court’s view that the Confirmation Act did not authorize a property owner to contest an order of the district board the court could *399 not very well have ruled otherwise. But, as we held in our former opinion, this is an erroneous construction of the statute; and since, at least as far as the attack on the assessment is concerned, there are matters alleged in the petition which are sufficient to give the court jurisdiction of the cause, we think the motion should have been allowed. It is now argued, however, by counsel for the defendants that it is too late to publish notice. Reliance is placed upon ORS 12.030 which requires that in an action publication of summons shall be commenced within 60 days after delivery of summons to the sheriff. This section has nothing to do with the Confirmation Act, which provides for a special proceeding and contains within itself the procedural requirements governing the court and the parties. There is no limitation of time expressed in the statute (ORS 548.110) for the commencement of publication of notice to interested parties. The section cited was authoritatively construed in Harney Valley Irr. Dist. v. Bolton, 109 Or 486, 492 , 221 P 171 , where the court said:
“In the original act it was specially provided, as is seen by the section of the statute hereinafter quoted, that the court shall fix a time for the hearing of the petition and shall order the clerk of the court to give and publish a notice of the filing of such pleading. Notwithstanding this particular provision has been omitted from the act of 1919, a careful examination of the act will disclose that there is no intention to change the manner of acquiring jurisdiction. The judge of the court fixes the time of the hearing, based upon a petition duly filed. While some of the language of Section 30, Chapter 223, Laws of 1911, relating to the details of the notice, has been omitted by the revision of that section appearing in Chapter 390, Laws of 1919, it is the intention of the Confirmation Act that the *400 notice of the proceedings should be given by direction of the judge of the circuit court, who shall fix the time and. place of the hearing, and that such notice should be signed by the clerk of the court. This has been the practical construction placed upon the amended section throughout the state.”
Plaintiffs’ motion was conformable to the foregoing.
Our former opinion is modified in the particulars above indicated and the decree of the circuit court is reversed and the cause remanded for further proceedings. Upon the remand, if the plaintiffs still desire to press the motion just referred to, it should be allowed. No effective decree could be entered in this case without bringing in as parties numerous persons whose lands have been included in the district upon their petition and have been assessed without any objection on their part. It is clear that they have rights which are vitally affected by this litigation and they should be before the court so that they may have the opportunity to be heard.
On the day of the reargument the defendants filed a motion to dismiss the appeal on the ground that the notice of appeal was not served on adverse parties, to wit, 81 owners of land who petitioned the board of directors for inclusion of their lands in the district. It is sufficient to say of this motion that these landowners were not adverse parties within the meaning of ORS 19.023 (2), cited by the defendants. That section requires the notice of appeal “* * * to be served on such adverse party or parties as have appeared in the action, suit or proceeding * * (Italics added.) None of the landowners referred to have so appeared and the motion is, therefore, denied.
Reversed.
See Handbook of the Irrigation District Laws of the Seventeen Western States of the United States (1920), by Will R. King, Chief Counsel, U. S. Reclamation Service and formerly Associate Justice of the Oregon Supreme Court, and E. W. Burr, District Counsel, U. S. Reclamation Service.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9633551. Public record. Not legal advice.