In Re Scappoose Drainage Dist. , 115 Or. 541 ( 1925 )

Rehearing denied September 22, 1925. ON PETITION FOR REHEARING. (239 P. 193.) For the petition, Mr. C.L. Whealdon and Mr. H.E. Collier. This court has held that the organization of the Scappoose Drainage District was legal. See 115 Or. 541 (237 P. 684). It has also held to be regular and lawful the proceedings involved in the appeal from the report of the commissioners assessing benefits and damages to the land owners of the district. See115 Or. 556 (237 P. 1117), for memorandum opinion. The two cases were briefed, argued and submitted to this court together. Some of the land owners have filed a petition for a rehearing in the appeal from the report of commissioners assessing benefits and damages.

The matter of benefits and damages sustained by the land owners was tried at length before the County Court of Columbia County, eight days being consumed in presenting the testimony and hearing the arguments. Duplicate decrees were entered, one signed by the county judge and two county commissioners, another by the County Court presided over by the county judge without the assistance of the commissioners.

In the organization of an irrigation district, jurisdiction is vested in the County Court sitting for the transaction of civil business: Harney Valley Irr. Dist. v. Weittenhiller, 101 Or. 1 (198 P. 1093). It was also held in that case that the County Court had jurisdiction to make the order of organization of an irrigation district without the attendance of the county commissioners.

The petition for rehearing is based upon the theory that the commissioners of Columbia County had no right to sit with the county judge in hearing the case, and that, because they were present at the hearing, the judgment rendered is absolutely void. They contend that there is neither precedent nor decision for sustaining the action of the County Court when so constituted. This contention is erroneous. The records of this court reveal that our former decision in this matter is sustained by many precedents. While the organization of irrigation and drainage districts is not county business, it has never been held that the County Court is ousted of jurisdiction rightfully and lawfully acquired by the presence of one or two of the county commissioners. Our clerk's office is replete with transcripts of records of the organization of irrigation and drainage districts and subsequent proceedings, which show, as in the instant case, the attendance of the county commissioners with the county judge in adjudicating the regularity of the organization of such districts; and this court has held the proceedings, as evidenced by such records, to be in all things lawful and regular. Moreover, much money has been invested in this state on the strength of such decisions. As a concrete example of the many cases holding to that effect, see In re Grants Pass Irr. Dist.,87 Or. 643 (171 P. 486). In that case, confirmatory proceedings were instituted by the directors of the irrigation district, to obtain from the court an order declaring valid and legal all of the steps leading up to the organization of the district and the election held for the issuance and sale of bonds of the district. The transcript in that case shows that judicial orders were made by the County Court, the two commissioners being present with the county judge; and this court affirmed the decision of the lower court, declaring regular in all respects the organization, the existence of the district, and the validity of the bonds. In rendering a per curiam opinion, the court said, among other things:

"The briefs filed indicate that the proceeding is amicable and designed mainly to secure the judicial vise as imparting greater sanction to the bonds with the possible result of making them more saleable. Notwithstanding this, we have given careful scrutiny to the history of the organization of the district and its action culminating in the authorization of the bond issue as portrayed in the very full record before us and find it to besingularly free from error."

In these many confirmatory proceedings contained in our files, it may be contended that the question of jurisdiction was not raised by the parties to the proceeding. However, the law says, in effect, that, in a proceeding to confirm the organization of an irrigation district, the question of jurisdiction presents itself to the court in every case, whether called to its attention by the parties to the litigation or not. See case ofDefiance Water Co. v. Defiance, 191 U.S. 184 (48 L. Ed. 140,24 Sup. Ct. Rep. 63), wherein the Supreme Court of the United States, speaking through Mr. Chief Justice FULLER, thus declared the law:

"The fundamental question of jurisdiction, first, of this court, and then of the court from which the record comes, presents itself on every writ of error or appeal, and must be answered by the court, whether propounded by counsel or not."

See, also, Evans v. Christian, 4 Or. 375; Evarts v.Steger, 5 Or. 147; Dippold v. Cathlamet Timber Co., 98 Or. 183 (193 P. 909), and the authorities there noted.

In determining as to the regularity of the proceedings involved in the organization of drainage and irrigation districts, this court is not a court of original or concurrent jurisdiction. It is strictly an appellate court, and, as such, has power to confirm the organization of such districts and the subsequent proceedings thereof upon appeal from an order of a competent court. Moreover, the many orders of record here establishing irrigation and drainage districts which this court has approved have been uniformly upheld as the valid orders of a competent County Court, notwithstanding the records show the presence of the commissioners.

In view of the foregoing, we are compelled to deny the petition for rehearing. REHEARING DENIED.

BEAN, BELT and COSHOW, JJ., concur.