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south, and the defendant is in such construc-, as to widen Summit avenue, east of block 23, tive possession of the disputed premises as the from 25 feet to 60 feet, and in all other redelivery of its deed imports. Since there has spects to be affirmed; and it is so ordered. been no invasion of the plaintiff's right, the

BURNETT and McBRIDE, JJ., concur. statute of limitations never began to run against his remedy.

[12] It is urged that though Mr. Kinney, by the acts and conduct of his agent, may have made a parol dedication of the disputed

ited CANNON v. HOOD RIVER IRR. DIST. et al. easements to such an extent as to be binding! (Supreme Court of Oregon. Jan. 18, 1916.) upon him, the defendant for a valuable con- (1. WATERS AND WATER COURSES 216-IRsideration secured its title by mesne convey-BIGATION-CONSTITUTIONALITY OF STATUTE. ances and had no knowledge of such dedica

L. 0. L. 8 6186, providing for the assess

ment of irrigation taxes upon lands within irtion, and hence no estoppel in pais can arise

rigation districts for the purposes therein conas against it. In Carter v. Portland, 4 Or.

templated, and directing the collection and dis339, it was determined that whatever in bursement of such taxes, is constitutional. formation, respecting a parol dedication of [Ed. Note.-For other cases, see Waters and public parks, was sufficient to attract the cient to attract the Water Courses, Cent. Dig. $ 305: Dee. Die

216.) attention of a purchaser to the prior rights and equities of the public in and to the prem

2. WATERS AND WATER COURSES 231-IR

BIGATION DISTRICT — TAXES – RESTRAINING ises, so as to put him upon inquiry as to the

COLLECTION-PLEADING.. source, nature, and extent of the dedication, In an action to restrain the collection of would operate as notice, and that when the an irrigation tax assessed by virtue of L, 0, L. evidence showed the purchaser bad such 86186, plaintiff alleged in effect that but a small

portion of his lands was susceptible of irrigaknowledge as would induce further investi.

tion; that the assessment was made simply begation, notice would be implied. In that case cause the lands were within the boundaries of the circumstances antedating and attending the district, and not according to the benefits

derived; that all tracts in the district were the purchase of two blocks in the city of

assessed by the same standard of valuation ; Portland by the plaintiffs were reviewed, and and that there was a difference between his it was held they had acquired such knowledge lands and other tracts assessed in the district, of a prior parol dedication to the public of bu

but he did not particularize as to how many such blocks as to prompt inquiry and charge ference was between his and other lands, nor

acres could be irrigated, or as to what the difthem with notice, and authorize a reversal did he allege that there was any difference of a decree which they had secured quieting

in the location of his property with reference to

the canal, or give any reason why he would not their title.

be benefited to the same extent as other landThe plat of Woodland Park addition to owners subject to the tax. Held, that the comGearbart Park shows the initial point of the plaint was general and did not state a cause of survey of that tract is the southeast corner suit. of block 23. 1

en in the l [Ed. Note.-For other cases, see Waters and

Water Courses, Cent. Dig. $ 320; Dec. Dig. ground to mark the east and west borders of

m231.] Summit avenue could have been found by the defendant's agent who had charge of the sur

3. PLEADING 8-CONCLUSIONS-FRAUD.

In an action to restrain the collection of an vey. One of these stakes, set at the south- irrigation tax assessed upon his lands, it is not east corner of block 37, and 60 feet east of sufficient for the plaintiff to allege that the asthe southeast corner of block 23, had there

corner of block 23. had there sessment was fraudulent, but he must state on at right angles the letters "Str," clearly

facts, and not mere conclusions.

| [Ed. Note.-For other cases, see Pleading, indicating the location of Seventh street im

Cent. Dig. 88 12-281/2, 68; Dec. Dig. Om8.] mediately south of blocks 23 and 37. As these proposed highways were marked upon

4. TAXATION Om 5-LANDS OF THE UNITED

STATES-EQUITABLE ESTATE, the ground prior to the execution of the deed

Where homestead entry has been made unto the defendant, though neither Summit ave- der the laws of the United States, final proof nue nor Seventh street is referred to in such submitted, and final certificate issued, it operdeed, the rule adopted in Green v. Miller, 161

ates to transfer an equitable estate, and imme

diately renders the land liable to taxation, alN. C. 24, 76 S. E. 505, 44 L. R. A. (N. S.) 231, though the United States holds the title until the is not controlling herein. From an inspection patent issues. of the white stakes mentioned the defendant (Ed. Note. For other cases, see Taxation, could have obtained such knowledge of the fCent. Dig. $8 17, 31-44; Dec. Dig. Om5.] original survey as to induce an inquiry as to 1 5. WATERS AND WATER COURSES 231-IRthe source, nature, and extent of the ease-| RIGATION DISTRICTS-LANDS INCLUDED. ments; and, this being so, notice of the sur

Although the title to lands, embraced with

in the boundaries of an irrigation district at the rey as thus marked upon the ground must be

time such boundaries were fixed pursuant to implied and imputed to the defendant.

statute, was in the United States, an assessOther assigned errors are deemed immate ment of an irrigation tax thereon after title rial, and for that reason they will not be dis

thereto had passed to an individual was valid,

as at the time of such transfer of title the lands cussed. From these considerations it follows

were embraced within the limits of the district that the decree herein should be modified, so I as legally as they were within the limits of the

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county, and no further proceedings were neces- | the same year they assessed all the tracts sary to lay a foundation for levying tax thereon.

therein by the same standard of valuation [Ed. Note.--For other cases, see Waters and Water Courses, Cent. Dig. 8 320; Dec. Dig. Om

to an amount sufficient at 14 mills on the dol231.]

lar to pay the interest and expenses of the 6. WATERS AND WATER COURSES 231IR

district; (2) that at the time of the organiRIGATION DISTRICTS-PRESUMPTIONS.

zation of the district the title to the lands In a suit to restrain the collection of an on which the assessment was made was in irrigation tax, when the validity of the irriga

the government of the United States and so tion district is not questioned, it must be assumed that the district was legally organized.

remained until April 11, 1907, when patent [Ed. Note. For other cases, see Waters and issued; that no steps had been taken after Water Courses, Cent. Dig. $ 320; Dec. Dig. the issuance of the patent to include the Om 231.)

lands within the boundaries of the district 7. WATERS AND WATER COURSES 231-IR- | prior to the assessment, therefore the same RIGATION DISTRICTS-RESTRAINING COLLEC- I were not legally within such boundaries, and TION OF TAXES.

When plaintiff claims that his lands are not for that reason the assessment was null and susceptible of irrigation, and that irrigation void; (3) that the assessor of the district would be injurious, the equitable powers of the for the purpose of the assessment illegally court cannot be invoked to relieve him from the burden of taxation without benefit until after

fit until after placed a valuation of $225 an acre on 80 acres he has demanded from the district board, and of his land, well knowing that the same was been refused, the right to have his lands set not worth to exceed $100 an acre, and that apart from the district.

such valuation was so fixed fraudulently and [Ed. Note. For other cases, see Waters and Water Courses, Cent. Dig. $ 320; Dec. Dig.

capriciously for the purpose of compelling Cm 231.]

the plaintiff to pay more than his equable 8. TAXATION 610 - RESTRAINING COLLEC

share of the taxes of such district; and that TION OF TAXES-CONDITIONS PRECEDENT. the assessor was unfair, in that he appor

One invoking the powers of a court of tioned to plaintiff a greater number of acres equity must do equity, and, before a taxpayer of

of the whole area of his tract than he did can be heard to urge the invalidity of a tax and enjoin the collection of an excessive levy, he to other residents of land of the same characmust first pay or tender for payment the amount ter of about the same or greater area. The legally levied.

defendant demurred to the complaint for the (Ed. Note.-For other cases, see Taxation, reason that the same did not state facts sufCent. Dig. $ 1244; Dec. Dig, C610.)

ficient to constitute a cause of suit. In Banc. Appeal from Circuit Court, Hood A, M. Cannon, of Portland, in pro. per. E. River County; W. L. Bradshaw, Judge. E. Stanton, of Hood River (John Baker, of

Action by A. M. Cannon, as trustee for Guy Hood River, on the brief), for respondents. W. Talbot, and others, against Hood River Irrigation District, and others, to restrain

BEAN, J. (after stating the facts as above). the collection of an irrigation tax.

on tar Decree [1] Section 6186, L. 0. L., provides:

Decree for defendants sustaining a demurrer, plain

“The district assessor must, between the first

Monday in March and the first Monday in June tiff appeals. Affirmed.

of each year, assess all the lands situated in

the district as hereinafter stated. He must This is an appeal by the plaintiff from a

au view and assess upon the lands situated in the decree sustaining the demurrer to his com-district a charge sufficient to pay all charges plaint and dismissing the suit. His pleading and expenses, and all obligations incurred by alleges, in substance, that he is the owner in

virtue * * * of the issuing of any bonds,

as herein contemplated, for the construction, fee simple of 120 acres of land described there

purchase, or acquisition of any canals, works, in situated in the Hood River irrigation dis or property as contemplated in this act. And trict; that the defendant was organized and

all lands situated within said district shall be

assessed and a charge placed thereon, in the is existing under the provisions of chapter 7,

manner herein contemplated, in proportion to tit. 41, L. 0. L.; that during the year 1909,

the benefit derived by the construction * * * under the provisions of section 6186, L. 0. L., of any canals, works, or property, according to the district assessor assessed 80 acres of plain

ased 80 acres of plain the benefit of each lot, parcel, or tract of land

| actually and separately received, which charges tiff's land at $18,000 for the purpose of pay- must be collected and paid into the district ing interest on bonds issued by the district treasury and must be placed to the credit of the in 1905, to the amount of $100,000, and for district, and paid out as in this act provided." construction expenditures incurred by it, the It is contended by plaintiff that the stattax amounting to $252. The plaintiff seeks ute pursuant to which the tax was levied is to restrain the collection of such tax upon unconstitutional. The law is valid and has three separate grounds: (1) That the com- been upheld and action thereunder sustained position of the soil and the topographical for- | by this court in several cases, namely, Board mation is such that but a small portion of of Directors v, Peterson, 64 Or. 46, 128 Pac. the whole area is susceptible of irrigation, 837, 129 Pac. 123; Board of Directors v. Pe and the irrigation of the land is of doubtful terson, 149 Pac. 1051; Rathfon v. Payette, expediency; that the officers levied the as- etc., Irrig. Dist., 149 Pac. 1044. Laws of the sessment simply because his lands are within same purport have been enacted and upheld the boundaries of the district, and not ac-by the courts in several states. cording to the benefit derived; and that for ) [2] The complaint of plaintiff is a gen

eral one. While he alleges that but a small / was embraced within the limits of the irrigaportion of the whole area of the , 120-acretion district just as legally as it was within tract is susceptible of irrigation, no state- the limits of the county; and no further ment is found as to how many acres can be proceedings were necessary in order to lay so irrigated. A portion of his lands being a foundation for levying a tax thereon. If situated so as to be irrigated from the system the plaintiff was dissatisfied on account of then being constructed, the same would be his land being included within the district, benefited thereby. While plaintiff indicates he should have pursued the remedy pointed that there is a difference between his land •out by the statute. and other tracts assessed in the district, he [6, 7] This is not an action to test the valmakes no mention of what the difference is, idity of the corporation, and we must assume or whether it is trifling or substantial. He that the district was legally organized. O. avers that 80 acres of his domain were as-S. L. Ry. Co. v. Pioneer Irrig. Dist., 16 Idaho, sessed at $225 an acre, and that other lands 578, 102 Pac. 904. In Andrews V. Lillian in the district were taxed by the same stand- Irrig. Dist., 66 Neb. 458, 92 N. W. 612, 97 ard of valuation; yet it is not alleged that | N. W. 336, where an irrigation district was there was any difference in the location of formed under a law similar to ours, plainbis property with reference to the canal, or tiff claimed that his lands were not susceptiotherwise, or any reason shown why he ble of irrigation, were wet and swampy rewould not be benefited to the same extent as quiring drainage, and that irrigation would other landowners subject to the tax. The be injurious. It was held that the equitable first cause of the complaint does not state a powers of the court could not be invoked to cause of suit.

relieve the plaintiff from the burden of taxa[3] The third separate cause of suit, to tion without benefit until after he had detbe effect that the assessor placed a valua- manded from the district board, and been tion of $225 an acre upon the land when refused, the right to have his lands set apart he knew at the time that it was not worth in from the district. The law governing irrigaexcess of $100 an acre, and that the assess- tion districts has been three times amended ment was fraudulently and capriciously made since the tax in question was levied. 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 landstion 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 certific plaint is vulnerable to the demurrer. cate for the land had been issued by the There was no error in the ruling of the United States Land Department.

| lower court, and the judgment is affirmed. Where a homestead entry has been made under the laws of the United States, final EAKIN, J., took no part in the consideraproof submitted, and final certificate issued, tion of this case. HARRIS, J., did not sit. 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.

STATE ex rel. MULLINS, Dist. Atty., v. Crook County, 53 Or. 329, 100 Pac. 291, 133

PORT OF ASTORIA et al. Am. St. Rep. 834; 37 Cyc. 867.

151 However, the tax upon the tract in (Supreme Court of Oregon. Jan. 11, 1916.) question was not levied prior to the issu- 1. CONSTITUTIONAL LAW 15 - CONSTRUCance of the patent. The boundary lines of TION OF CONSTITUTION.

Sections of the Constitution relating to the the irrigation district had been fixed pursu

same subject-matter must be read and construed ant to the statute in so far as shown by the together." cornplaint, and when the title passed from the (Ed. Note.-For other cases, see Constitutional government of the United States the land | Law, Cent. Dig. § 9; Dec. Dig. 15.)

2. MUNICIPAL CORPORATIONS 56 - POWERS | constitutional provisions being applicable only OF GOVERNMENT-CONSTRUCTION OF CONSTI- to intramural powers. TUTION.

[Ed. Note. For other cases, see Municipal Although the chief purpose in construing Corporations, Cent. Dig. 8 148; Dec. Dig. For constitutional provisions is to ascertain and give 56.1 effect to the intention as expressed in the language employed, nevertheless sections designed".

med 17. MUNICIPAL CORPORATIONS OM47 – POWERS to grant attributes of sovereignty to specified

-CHARTERS—AMENDMENT. local subdivisions of the state, thus limiting the

A port incorporated under L. O. L. $$ 6114power of the Legislature, should be strictly con

6125, attempted, after section 6121 was amended strued.

in 1915 (Laws 1915, p. 62) by adding a provi

sion empowering ports to acquire and operate [Ed. Note.--For other cases, see Municipal

steamboats and other craft for transportation Corporations, Cent. Dig. 8 148; Dec. Dig. Om

business, to exercise such powers, although the 56.]

amendment had not been accepted by the voters 3. MUNICIPAL CORPORATIONS Om 4-MUNICI

of the port. Const. art. 11, § 2, provides that PALITIES–DISTINCTIONS.

corporations may be formed under the general 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 un

the Legislature shall not enact, amend, or repeal general laws, but shall not be created by special

any charter or act of incorporation for any mu

I nicipality, city, or town, and that the voters of laws, and that the Legislative Assembly shall | nic not enact, amend, or repeal any charter or act of

of each city and town may enact and amend their incorporation for any municipality, city, or

municipal charter subject to state laws. Article town, but the legal voters of every city and town

4, 8 la, declares that the initiative and referenmay enact and amend their municipal charter,

dum powers reserved to the people are reserved subject to the constitution and laws of the state.

to the legal voters of every municipality and Article 4, § 1a, declares that the initiative and

district as to all local and special and municipal referendum powers reserved to the people are re

legislation, and that the manner of exercising served to the legal voters of every municipality

the power shall be prescribed by general laws, and district as to all local, special, and munici

except that cities and towns may provide for pal legislation of every character, and that the

the manner of exercise. Held, that as, in view manner of exercising such powers shall be pre

of the two constitutional provisions, the Legislascribed by general laws, except that cities and

ture is not precluded from amending laws pretowns may provide for the manner of exercising

| viously passed concerning municipalities other the initiative and referendum powers as to their

than towns or cities, and as a port can exercise municipal legislation. Held, that both constitu

no power unless authorized by law, the port tional provisions recognize a distinction between

may, though the amendment was not adopted by cities and towns which are pure municipalities

its electors, engage in transportation business ; and other municipalities which do not have so

such adoption being unnecessary extensive a power.

[Ed. Yote.-For other cases, see Muricipal

Corporations, Cent. Dig. & 126; Dec. Dig. [Ed. Note.-For other cases, see Municipal

47.] Corporations, Cent. Dig. 88 4, 5; Dec. Dig. ww4.]

Bean, J., dissenting. 4. MUNICIPAL CORPORATIONS Owl – Ports – In Banc. Appeal from Circuit Court, ClatNATURE OF.

sop County; J. A. Eakin, Judge. A port organized under L, O. L. 88 61146125, declaring that municipal corporations desig

in Suit by the State, on the relation of C. W. nated as ports may be incorporated, and that Mullins, District Attorney of Clatsop Counthey may make, change, and abolish such rules ty, against the Port of Astoria, a municand regulations for the use or navigation in har- | ipal corporation, and G. B. McLeod and othbors or rivers or the placing of obstructions or the removal therefrom as may be convenient, and

ers, commissioners of the Port. From a de such rules and regulations may be enforced by cree dismissing the suit, plaintiff appeals. fines and penalties, is a municipal corporation | Affirmed. within Const, art. 4, § 1a, art. 11, $ 2. [Ed. Note.-For other cases, see Municipal |

ses. See Municipal. In 1909 the Legislature enacted a lawCorporations, Cent. Dig. 88 1, 142; Dec. Dig. "to provide for incorporation under general law Cl.

of ports in counties bordering upon bays or rive For other definitions, see Words and Phrases,

ers navigable from the sea or containing bays or First and Second Series, Municipal Corpora rivers navigable from the sea, and to provide tion.)

for the manner of incorporating such ports and

defining the powers of ports so incorporated." 5. MUNICIPAL CORPORATIONS Ow57-POWERS

The statute appears as chapter 39 in Laws OF - DEFINITION - "INTRAMURAL" - "ExTRAMURAL.

of 1909, and is codified in L. O. L. from sec The powers of a municipal corporation are tion 6114 to 6125, inclusive. The purpose of "intramural" and "extramural"; the one being the Legislature is accomplished by providing the powers exercised within the corporate limits, ! and the other being those exercised without

ts, for a petition, an election, a canvass of the [Ed. Note. For other cases, see Municipal

votes, and a proclamation of the result of Corporations, Cent, Dig. $$ 144, 148; Dec. Dig.

the election. It is stated in section 6120, L. ww57.)

0. L., that from and after the date of the 6. MUNICIPAL CORPORATIONS Om56-POWERS

proclamation made by the county court the -RIGHT TO EXERCISE.

territory_ While Const. art. 4, § 1a, authorizes cities “embraced within the limits defined in such and towns to prescribe the manner for exer-proclamation shall be a separate district to be cising the initiative and referendum powers as known as the port whose name is specified in to local matters, and article 11, § 2, authorizes such proclamation, and the inhabitants thereof them to amend their own municipal charters shall be a corporation by the name and style of subject to general laws, a city or town is not en- the port specified in such proclamation, and as titled to assume extra mural authority which has such shall have perpetual succession, and by the not been granted by prior legislative act, the said names shall exercise and carry out the cor

porate powers and objects hereinafter conferred struct, operate and maintain such line or lines and declared."

of railroad, with necessary side track, turnouts Under the terms of section 6121 :

and switches and connection and arrangements

( with other common carriers, as in the judgment "Such corporation shall have power": (1) Tol of the port commissioners may facilitate water improve all bays, rivers, and harbors within its commerce between such point and points within limits and between its limits and the sea; (2) the boundaries of the port as the port commisto contract with the government of the United sioners may from time to time determine, all for States to do any part of the work of making or hire, and to carry and transport freight and to maintaining such a depth of water as the governo move passenger trains thereon and thereover ment of the United States may from time to for hire. Also to engage generally

0 for hire. Also to engage generally in the busitime determine to make or maintain; (3) to ex-ness of buying and selling coal, fuel oil and all ercise the right of eminent domain in carrying kinds of fuel for steamboats and power boats on any work which the port is authorized to do; and power vessels of all kinds, and generally to (4) to exercise control of all bays, rivers, and do and cause to be done all things necessary and harbors within their limits, and between their convenient whether herein expressed or not to limits and the sea, with the power to make, successfully carry out the powers herein grantchange, or abolish wharf lines and "to make, es

e, es. ed.tablish, change, modify or abolish such rules and regulations for the use or navigation in such

After narrating the organization of the harbors and rivers, or the placing of obstructions port and reciting the amendment to section therein or the removal of obstructions there- 6121, L. O. L., the complaint alleges : from, as it may deem convenient, requisite or

That the commissioners are claiming that the necessary or in the best interests of the maritime shipping and commercial interests of the said

amendment of 1915 enlarged the powers of the port, and the said rules and regulations so made

port of Astoria so as to enable the board of comby it to be enforced by such fines, penalties, and

missioners to acquire and operate boats for the punishments as it in the exercise of sound dis

transportation of passengers and freight; that cretion may deem necessary; and the fines or

the legal voters of the port have never amended penalties so imposed or levied shall be recovered

the charter of the port nor held an election for in the name of said corporation in any court of

that purpose; that the “port of Astoria has this state having jurisdiction of actions for the

properly and legally, in so far as it had the powrecovery of fines and penalties imposed by state

er, so to do passed, adopted, and ordained resolulaws, and shall inure and belong to said corpora

tions and ordinances in the manner provided by tion, and all punishments so imposed shall be

its act of incorporation, to establish, maintain, enforced in the name of said corporation in any

own, and operate steamboats, power boats, vesof the courts of this state having jurisdiction of

sels and water crafts for the transportation of crimes and misdemeanors under said laws" ;

all kinds of merchandise, passengers, and freight (5) to establish, maintain, and operate a tugboat

for hire, and to establish, operate, and maintain and pilotage service in said port and between

water transportation lines upon the navigable said port and the sea, and to that end to pur

waters of the state of Oregon": that the port chase, lease, and operate boats; (6) to acquire

has already expended over $5,000 for the purlands, to construct canals, and maintain and op

pose of establishing, operating, and maintaining erate wharves, warehouses, and dry docks; (7)

water and transportation lines, and will, unless to do anything which may become requisite, nec- re

restrained, expend "the sum of $100,000 to pur

I chase, own, maintain, and operate steamboats. essary or convenient in carrying out any of the powers granted: (8) to borrow money and issue power boats, vessels, and water crafts for the bonds; (9) to assess, levy, and collect taxes up

transportation of all kinds of merchandise, pason all property within its boundaries.

sengers, and freight for hire, and to establish,

operate, and maintain water transportation lines We read in section 6122, L. O, L., that: in the navigable waters of the state of Oregon “The power and authority given to corpora- and waters tributary thereto." tions organized under the provisions of this act The complaint concludes with a prayer is vested in and shall be exercised by a board of

asking that the commissioners be restrained commissioners, five in number, each of whom shall be a qualified voter within the limits of from acquiring or operating boats for the said corporation."

transportation of passengers or freight. The Within ten days from the issuance of the plaintiff declined to plead further after a proclamation by the county court declaring demurrer to the complaint was sustained, and that the legal voters have created a port, the

thereupon the court rendered a decree disGovernor of the state appoints five commis

missing the suit. The appeal prosecuted by sioners, who shall serve for definite periods

the plaintiff presents only such questions as after which their successors are elected by were raised by the demurrer. the legal voters of the port.

C. W. Mullins, Dist. Atty., and Norblad & The port of Astoria was organized in 1910 Hesse, all of Astoria, for appellant. W. W. under the general law providing for the in- Cotton, Arthur C. Spencer, and Carey & corporation of ports. The Legislative Assem-Kerr, all of Portland (Omar C. Spencer, of bly in 1915 (Laws 1915, p. 62) amended sec- Portland, on the brief), amici curiæ. G. C. tion 6121 by adding the following:

Fulton and A. C. Fulton, both of Astoria, for “Also to acquire, charter, own, maintain and respondents. operate steamboats, power boats, vessels and water crafts for the transportation of all kinds of merchandise, passengers and freight for hire,

HARRIS, J. (after stating the facts as and to engage generally in the coastwise trade above). It will be observed from the foregoand commerce both domestic and foreign and in ing statement that the situation presented transporting for hire all kinds of merchandise and freight. Also to establish, operate and

here is one where the port of Astoria was maintain water transportation lines in any of

incorporated in 1910 under a general law the navigable waters of the state of Oregon and which was enacted in 1909, and which did waters tributary thereto, any portion of which

| not, at the time of the incorporation of the may touch the boundaries of such port. Also own. acquire. construct. operate and maintain port of Astoria, include the power to acquire railroad terminal grounds and yards, and con- and operate boats for the transportation of

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