eral one. While he alleges that but a small was embraced within the limits of the irriga- [6, 7] This is not an action to test the validity of the corporation, and we must assume that the district was legally organized. O. S. L. Ry. Co. v. Pioneer Irrig. Dist., 16 Idaho, 578, 102 Pac. 904. In Andrews v. Lillian Irrig. Dist., 66 Neb. 458, 92 N. W. 612, 97 N. W. 336, where an irrigation district was formed under a law similar to ours, plaintiff claimed that his lands were not susceptible of irrigation, were wet and swampy requiring drainage, and that irrigation would be injurious. It was held that the equitable powers of the court could not be invoked to relieve the plaintiff from the burden of taxation without benefit until after he had demanded from the district board, and been refused, the right to have his lands set apart from the district. The law governing irrigation districts has been three times amended since the tax in question was levied. [3] The third separate cause of suit, to the effect that the assessor placed a valuation of $225 an acre upon the land when he knew at the time that it was not worth in excess of $100 an acre, and that the assessment was fraudulently and capriciously made for the purpose of compelling the plaintiff [8] Passing the matter of the manner of to pay more than his equable share of the asserting the complaint, there is another potaxes, is a mere conclusion. Facts are not tent reason why the plaintiff cannot enjoin stated showing that other acres in the dis- the collection of the tax. One invoking the trict were not assessed upon the same valua- powers of a court of equity must do equity, tion, and in order for the plaintiff to be in- and before a taxpayer can be heard to urge jured his assessment must be shown to be out the invalidity of a tax and enjoin the collecof proportion to that of the other lands tion of an excessive levy, he must first pay taxed. It is not sufficient for the defendant or tender for payment the amount legally to allege that the assessment was fraudulent, levied. The defendant fails to allege that he but it is incumbent upon him to state the has done this. Brown v. School Dist., 12 facts upon which such wrong is based. Or. 345, 7 Pac. 357; Goodnough v. Powell, Fraud will not be presumed. So. Oregon 23 Or. 525, 32 Pac. 396; Hibernian BenevoCo. v. Coos County, 39 Or. 185, 64 Pac. 646. lent Society v. Kelly, 28 Or. 173, 42 Pac. 3, [4] The second cause of suit alleges that 30 L. R. A. 167, 52 Am. St. Rep. 769; Dayton at the time of the organization of the district v. Multnomah Co., 34 Or. 239, 247, 55 Pac. the title to the lands was in the govern- 23; Alliance Trust Co. v. Multnomah Counment of the United States. It does not ty, 38 Or. 433, 437, 63 Pac. 498. The comshow whether at that time the final certifi-plaint is vulnerable to the demurrer. cate for the land had been issued by the United States Land Department. Where a homestead entry has been made under the laws of the United States, final proof submitted, and final certificate issued, it operates to transfer an equitable estate, and immediately renders the land liable to taxation, although the United States holds the title until the patent issues. Johnson v. Crook County, 53 Or. 329, 100 Pac. 291, 133 Am. St. Rep. 834; 37 Cyc. 867. [5] However, the tax upon the tract in question was not levied prior to the issuance of the patent. The boundary lines of the irrigation district had been fixed pursuant to the statute in so far as shown by the complaint, and when the title passed from the government of the United States the land 2. MUNICIPAL CORPORATIONS 56-POWERS | constitutional provisions being applicable only OF GOVERNMENT-CONSTRUCTION OF CONSTI- to intramural powers, TUTION. Although the chief purpose in construing constitutional provisions is to ascertain and give effect to the intention as expressed in the language employed, nevertheless sections designed to grant attributes of sovereignty to specified local subdivisions of the state, thus limiting the power of the Legislature, should be strictly con strued. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 148; Dec. Dig. 56.1 7. MUNICIPAL CORPORATIONS -CHARTERS-AMENDMENT. 47 - POWERS 6125, attempted, after section 6121 was amended A port incorporated under L. O. L. §§ 6114in 1915 (Laws 1915, p. 62) by adding a provisteamboats and other craft for transportation sion empowering ports to acquire and operate [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 148; Dec. Dig. business, to exercise such powers, although the 56.] 3. MUNICIPAL CORPORATIONS PALITIES-DISTINCTIONS. amendment had not been accepted by the voters 4-MUNICI- of the port. Const. art. 11, § 2, provides that corporations may be formed under the general the Legislature shall not enact, amend, or repeal Const. art. 11, § 2, as amended in 1906, de-law but shall not be created by special laws, that clares that corporations may be formed under general laws, but shall not be created by special laws, and that the Legislative Assembly shall not enact, amend, or repeal any charter or act of incorporation for any municipality, city, or town, but the legal voters of every city and town may enact and amend their municipal charter, subject to the constitution and laws of the state. Article 4, § 1a, declares that the initiative and referendum powers reserved to the people are reserved to the legal voters of every municipality and district as to all local, special, and municipal legislation of every character, and that the manner of exercising such powers shall be prescribed by general laws, except that cities and towns may provide for the manner of exercising the initiative and referendum powers as to their municipal legislation. Held, that both constitutional provisions recognize a distinction between cities and towns which are pure municipalities and other municipalities which do not have so extensive a power. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 4, 5; Dec. Dig. 4.] 4. MUNICIPAL CORPORATIONS 1 NATURE OF. PORTS A port organized under L. O. L. §§ 61146125, declaring that municipal corporations designated as ports may be incorporated, and that they may make, change, and abolish such rules and regulations for the use or navigation in harbors or rivers or the placing of obstructions or the removal therefrom as may be convenient, and such rules and regulations may be enforced by fines and penalties, is a municipal corporation within Const. art. 4, § 1a, art. 11, § 2. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1, 12; Dec. Dig. ~1. For other definitions, see Words and Phrases, First and Second Series, Municipal Corporation.] 5. MUNICIPAL CORPORATIONS 57-POWERS OF · DEFINITION "INTRAMURAL" "ExTRAMURAL. The powers of a municipal corporation are "intramural" and "extramural"; the one being the powers exercised within the corporate limits, and the other being those exercised without. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 144, 148; Dec. Dig. m57.] 6. MUNICIPAL CORPORATIONS -RIGHT TO EXERCISE. 56-POWERS While Const. art. 4, § 1a, authorizes cities and towns to prescribe the manner for exercising the initiative and referendum powers as to local matters, and article 11, § 2, authorizes them to amend their own municipal charters subject to general laws, a city or town is not entitled to assume extramural authority which has not been granted by prior legislative act, the [Ed. Note.-For other cases, see Municipal 47.1 Corporations, Cent. Dig. § 126; Dec. Dig. ←→ Bean, J., dissenting. In Banc. Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge. Suit by the State, on the relation of C. W. Mullins, District Attorney of Clatsop County, against the Port of Astoria, a municipal corporation, and G. B. McLeod and others, commissioners of the Port. From a decree dismissing the suit, plaintiff appeals. Affirmed. In 1909 the Legislature enacted a law"to provide for incorporation under general law of ports in counties bordering upon bays or rivers navigable from the sea or containing bays or rivers navigable from the sea, and to provide for the manner of incorporating such ports and defining the powers of ports so incorporated." The statute appears as chapter 39 in Laws of 1909, and is codified in L. O. L. from section 6114 to 6125, inclusive. The purpose of the Legislature is accomplished by providing for a petition, an election, a canvass of the votes, and a proclamation of the result of the election. It is stated in section 6120, L. O. L., that from and after the date of the proclamation made by the county court the territory "embraced within the limits defined in such proclamation shall be a separate district to be known as the port whose name is specified in such proclamation, and the inhabitants thereof shall be a corporation by the name and style of the port specified in such proclamation, and as such shall have perpetual succession, and by the said names shall exercise and carry out the cor For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Under the terms of section 6121: porate powers and objects hereinafter conferred struct, operate and maintain such line or lines and declared." of railroad, with necessary side track, turnouts and switches and connection and arrangements with other common carriers, as in the judgment of the port commissioners may facilitate water commerce between such point and points within the boundaries of the port as the port commissioners may from time to time determine, all for hire, and to carry and transport freight and to move passenger trains thereon and thereover for hire. Also to engage generally in the business of buying and selling coal, fuel oil and all kinds of fuel for steamboats and power boats and power vessels of all kinds, and generally to do and cause to be done all things necessary and convenient whether herein expressed or not to successfully carry out the powers herein granted." "Such corporation shall have power": (1) To improve all bays, rivers, and harbors within its limits and between its limits and the sea; (2) to contract with the government of the United States to do any part of the work of making or maintaining such a depth of water as the government of the United States may from time to time determine to make or maintain; (3) to exercise the right of eminent domain in carrying on any work which the port is authorized to do; (4) to exercise control of all bays, rivers, and harbors within their limits, and between their limits and the sea, with the power to make, change, or abolish wharf lines and "to make, establish, change, modify or abolish such rules and regulations for the use or navigation in such harbors and rivers, or the placing of obstructions therein or the removal of obstructions therefrom, as it may deem convenient, requisite or necessary or in the best interests of the maritime shipping and commercial interests of the said port, and the said rules and regulations so made by it to be enforced by such fines, penalties, and punishments as it in the exercise of sound discretion may deem necessary; and the fines or penalties so imposed or levied shall be recovered in the name of said corporation in any court of this state having jurisdiction of actions for the recovery of fines and penalties imposed by state laws, and shall inure and belong to said corporation, and all punishments so imposed shall be enforced in the name of said corporation in any of the courts of this state having jurisdiction of crimes and misdemeanors under said laws"; (5) to establish, maintain, and operate a tugboat and pilotage service in said port and between said port and the sea, and to that end to purchase, lease, and operate boats: (6) to acquire lands, to construct canals, and maintain and operate wharves, warehouses, and dry docks; (7) to do anything which may become requisite, necessary or convenient in carrying out any of the powers granted; (8) to borrow money and issue bonds; (9) to assess, levy, and collect taxes upon all property within its boundaries. We read in section 6122, L. O. L., that: "The power and authority given to corporations organized under the provisions of this act is vested in and shall be exercised by a board of commissioners, five in number, each of whom shall be a qualified voter within the limits of said corporation." Within ten days from the issuance of the proclamation by the county court declaring that the legal voters have created a port, the Governor of the state appoints five commissioners, who shall serve for definite periods after which their successors are elected by the legal voters of the port. The port of Astoria was organized in 1910 under the general law providing for the incorporation of ports. The Legislative Assembly in 1915 (Laws 1915, p. 62) amended section 6121 by adding the following: "Also to acquire, charter, own, maintain and operate steamboats, power boats, vessels and water crafts for the transportation of all kinds of merchandise, passengers and freight for hire, and to engage generally in the coastwise trade and commerce both domestic and foreign and in transporting for hire all kinds of merchandise and freight. Also to establish, operate and maintain water transportation lines in any of the navigable waters of the state of Oregon and waters tributary thereto, any portion of which may touch the boundaries of such port. Also to own, acquire, construct, operate and maintain railroad terminal grounds and yards, and con After narrating the organization of the port and reciting the amendment to section 6121, L. O. L., the complaint alleges: That the commissioners are claiming that the amendment of 1915 enlarged the powers of the port of Astoria so as to enable the board of commissioners to acquire and operate boats for the transportation of passengers and freight: that the legal voters of the port have never amended the charter of the port nor held an election for that purpose; that the "port of Astoria has properly and legally, in so far as it had the power so to do passed, adopted, and ordained resoluits act of incorporation, to establish, maintain, tions and ordinances in the manner provided by own, and operate steamboats, power boats, vessels and water crafts for the transportation of all kinds of merchandise, passengers, and freight for hire, and to establish, operate, and maintain water transportation lines upon the navigable waters of the state of Oregon": that the port has already expended over $5,000 for the purpose of establishing, operating, and maintaining water and transportation lines, and will, unless restrained, expend "the sum of $100,000 to purchase, own, maintain, and operate steamboats, power boats, vessels, and water crafts for the transportation of all kinds of merchandise, passengers, and freight for hire, and to establish, operate, and maintain water transportation lines in the navigable waters of the state of Oregon and waters tributary thereto." The complaint concludes with a prayer asking that the commissioners be restrained from acquiring or operating boats for the transportation of passengers or freight. The plaintiff declined to plead further after a demurrer to the complaint was sustained, and thereupon the court rendered a decree dismissing the suit. The appeal prosecuted by the plaintiff presents only such questions as were raised by the demurrer. C. W. Mullins, Dist. Atty., and Norblad & Hesse, all of Astoria, for appellant. W. W. Cotton, Arthur C. Spencer, and Carey & Kerr, all of Portland (Omar C. Spencer, of Portland, on the brief), amici curiæ. G. C. Fulton and A. C. Fulton, both of Astoria, for respondents. HARRIS, J. (after stating the facts as above). It will be observed from the foregoing statement that the situation presented here is one where the port of Astoria was incorporated in 1910 under a general law which was enacted in 1909, and which did not, at the time of the incorporation of the port of Astoria, include the power to acquire and operate boats for the transportation of passengers and freight; in 1915 the general | items, sections, or parts of an act shall not delay law was amended so as to add to the powers the remainder of that act from becoming operof a port, previously enumerated and defined reserved to the people by this Constitution are ative. The initiative and referendum powers by the act of 1909, the right to maintain hereby further reserved to the legal voters of boats for the transportation of freight and every municipality and district, as to all local, passengers; the legal voters of the port special, and municipal legislation, of every charhave never held an election to decide whether acter, in or for their respective municipalities and districts. The manner of exercising said they desire to exercise the new power nam- powers shall be prescribed by general laws, exed by the amendment; and the commission- cept that cities and towns may provide for the ers are acting on the assumption that the manner of exercising the initiative and referamendment of 1915 by its own force con- Not more than ten per cent. of the legal voters endum powers as to their municipal legislation. ferred upon all existing ports adequate au- may be required to order the referendum nor thority to engage in the transportation busi- more than fifteen per cent. to propose any measure, by the initiative, in any city or town." ness. On the facts narrated by the complaint, the defendants argue that the Legislature possesses supervisory control over ports, and, when exercising such control, has full authority to regulate or enlarge or even to withdraw powers previously granted; that, when the Legislature does speak through a general law, which in any way affects existing ports, that general law by its own compelling force immediately operates upon all existing ports; and that therefore the amendment of 1915 by its own vigor conferred upon the port of Astoria and all other like corporations the right to operate boats for the transportation of passengers and freight. The plaintiff takes the position that the port of Astoria is a municipality with a charter which cannot be amended by the Legislature, and that therefore the port cannot engage in the transportation business until the legal voters first accept the privilege offered by the act of 1915 and incorporate the addition al power into the charter by an election held for that purpose. The difference in the conclusions reached by the litigants is traceable to the wide divergence of the opinions held by them concerning the proper construction to be placed upon section 2 of article 11 and section la of article 4 of the state Constitution. The storm center of the dispute between the parties hangs around the organic law, and on that account the two sections mentioned are here set down at length. Section 2 of article 11 reads thus: "Corporations may be formed under general laws, but shall not be created by the Legislative Assembly by special laws. The Legislative Assembly shall not enact, amend or repeal any charter or act of incorporation for any municipality, city or town. The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the state of Oregon, and the exclusive power to license, regulate, control, or to suppress or prohibit, the sale of intoxicating liquors therein is vested in such municipality; but such municipality shall within its limits be subject to the provisions of the local option law of the state of Oregon." Section 1a of article 4 declares that: "The referendum may be demanded by the people against one or more items, sections, or parts of any act of the Legislative Assembly in the same manner in which such power may be exercised against a complete act. The filing of a referendum petition against one or more [1, 2] That portion of section 2 of article 11 which deals with the liquor traffic, commencing with the words "and the exclusive power," was incorporated into the Constitution in 1910; but all that part of the section which precedes the words last quoted, as well as section la of article 4 were adopted and became effective in 1906, and, so far as they relate to the same subject-matter, must be read and construed together. McKenna v. City of Portland, 52 Or. 191, 96 Pac. 552; McMinnville v. Howenstine, 56 Or. 451, 465, 109 Pac. 81, Ann. Cas. 1912C, 193; Branch v. Albée, 71 Or. 188, 197, 142 Pac. 598; Duncan V. Dryer, 71 Or. 548, 552, 143 Pac. 644; Kalich v. Knapp, 73 Or. 558, 577, 142 Pac. 594, 145 Pac. 22; Robertson v. Portland, 149 Pac. 545, 547. supra: As declared in Branch v. Albee, whole provision is to be examined with a view "In construing a constitutional provision, the to ascertaining the meaning of every part. The presumption is that every clause has been inserted for some useful purpose, and therefore the instrument must be construed as a whole, in order that its intent and general purposes may be ascertained; and, as a necessary result of this rule, it follows that, wherever it is possible to do so, each provision must be construed so that it will harmonize with all others, without distorting the meaning of any of such provisions, to the end that the intent of the framers of the provision may be ascertained and carried out." While the prime purpose is to ascertain and give effect to the intention as expressed in the language employed, yet the two sections now being considered are designed to grant attributes of sovereignty to specified local subdivisions, and, such grant being a limitation on the power of the Legislature, it should be strictly construed as was properly held in Thurber v. McMinnville, 63 Or. 410, 414, 128 Pac. 43; and this rule of construction must be applied here, notwithstanding the suggestion broached in State v. Schluer, 59 Or. 18, 27, 115 Pac. 1057, and regardless of the inference that may possibly be drawn from Schubel v. Olcott, 60 Or. 503, 515, 120 Pac. 375. [3] Prior to 1906 the Legislature was granted authority to create a corporation for Until municipal purposes by special laws. that time section 2 of article 11 read thus: "Corporations may be formed under general laws, but shall not be created by special laws, except for municipal purposes. All laws passed pursuant to this section may be altered, amend ed, or repealed, but not so as to impair or de- and towns may provide for the manner of exstroy any vested corporate rights." Under the present form of the organic law, however, the Legislative Assembly is prohibited from creating any kind of a corporation by a special law, but it has the power to provide for the formation of corporations under general laws, whether such corporations be private or public, essentially proprietary, or purely municipal, since section 2 of article 11 opens by stating: "Corporations may be formed under general laws, but shall not be created by the Legislative Assembly by special laws." See Farrell v. Port of Columbia, 50 Or. 169, 173, 91 Pac. 546, 93 Pac. 254; Straw v. Har ris, 54 Or. 424, 431, 103 Pac. 777; Branch v. Albee, 71 Or. 188, 194, 142 Pac. 598; Kalich v. Knapp, 73 Or. 558, 567, 142 Pac. 594, 145 Pac. 22; State ex inf. v. Gilbert, 66 Or. 434, 439, 134 Pac. 1038; State v. Hall, 73 Or. 231, 239, 144 Pac. 475. ercising the initiative and referendum powers as to their municipal legislation." The circumstance that the initiative and referendum powers are conferred upon all the legal voters of "every municipality and district" with permission granted to none of such municipalities or districts, except the single class of cities and towns, to prescribe their own procedure for exercising the granted powers, only accentuates the idea that this section of the Constitution embraces not only cities and towns, but also a class of institutions which are municipalities within the meaning of the If a city or town does not adopt a method of organic law, although not cities and towns. its own for the exercise of the right to initi ate and refer municipal legislation, such mu 402, 37 L. R. A. (N. S.) 339; State ex rel. v. Kelsey, 66 Or. 70, 78, 133 Pac. 806; Long v. City of Portland, 53 Or. 92, 96, 98 Pac. 149, 1111; McBee v. Springfield, 58 Or. 459, 462, 114 Pac. 637; Schubel v. Olcott, 60 Or. 503, 508, 120 Pac. 375; State ex rel. v. Portland Ry., L. & P. Co., 56 Or. 32, 37, 107 Pac. 958; Duncan v. Dryer, 71 Or. 548, 552, 143 Pac. 644; State ex inf. v. Gilbert, 66 Or. 434, 134 Pac. 1038. nicipality may make use of a general law enand referendum powers lie dormant, and canacted by the Legislature; but the initiative not be availed of by a municipality, which is not a city or town, except in the manner The first sentence of section 2 of article 11 prescribed by general laws, because cities and employs the word "corporations," and there towns are the only municipalities which are fore that comprehensive term, as used in the authorized to provide for the manner of exopening sentence of that section, includes pri-ercising the powers. McKenna v. Portland, vate corporations. Both the permission to 52 Or. 191, 195, 96 Pac. 552; Kiernan v. Portprovide for the formation of corporations un-land, 57 Or. 454, 459, 111 Pac. 379, 112 Pac. der general laws and the prohibition against the Legislative Assembly creating them by special laws apply to private as well as to other corporations; but, turning to section la of article 4, it will be observed that there private corporations are in no way referred to. It must also be noted that section la of article 4 speaks of "municipalities and districts," while section 2 of article 11 uses the terms "corporations," "municipality, city or town," and makes no mention of "districts." There is yet additional evidence that muBoth sections of the organic law do, however, nicipalities other than cities and towns are occupy common ground when municipal cor- included within the embrace of the Constituporations are considered. An analysis of the tion. It is interesting to note that ever since two sections will make it reasonably clear Oregon was admitted to statehood section 9 that two classes of municipalities are embrac- of article 11 has formed a part of the state ed: (a) Cities and towns, or pure municipal- Constitution, and the language of that secities, as we know them in this jurisdiction; tion recognizes the existence of municipalities and (b) all institutions which, though not other than cities and towns, for the wording cities and towns, are nevertheless municipal-is, "no county, city, town or other municipal ities within the purview of the Constitution. In the second sentence of section 2 of article 11 the Legislative Assembly is prohibited from interfering with any charter or act of incorporation for any "municipality, city or town," while the succeeding sentence grants the power to enact and amend their municipal charter only to the legal voters of every "city and town," and thus by implication denying the right to enact or amend a charter to the legal voters of municipalities which do not rise to the dignity of a city or town. The suggested classification of municipalities is still further emphasized by section la of article 4; for there initiative and referendum powers are reserved to the legal voters "of every municipality and district." The manner of exercising the conferred powers "shall corporation"; and it is proper to add the observation that in Cook v. Portland, 20 Or. 580, 584, 27 Pac. 263, 13 L. R. A. 533, this court, when speaking of section 9 of article 11, declared that: "Here is a direct interpretation from the Constitution itself. A municipal corporation is not necessarily a county, city or town." Furthermore, the existence of the two classes of municipalities has been recognized by the judiciary, not only before 1906, but since the adoption of section 2 of article 11 and section la of article 4 of the Constitution. Acme Dairy Co. v. Astoria, 49 Or. 520, 524, 90 Pac. 153; Schubel v. Olcott, 60 Or. 503, 510, 120 Pac. 375. We conclude, therefore, that the Constitution is not confined in its operation to cities and towns, but that the |