delivered the following dissenting opinion:
Embodied in Chapter 172 of the Laws of 1911 is a procedure whereby any number of land owners, not less than three, may incorporate themselves for the purpose of irrigating or draining, or irrigating and draining, their own lands in the manner therein prescribed. Having executed the required articles, wherein, among other things, the particular description of the lands embraced in the project is set out, the owners are required unanimously to sign and acknowledge a notice to whom it may concern that the realty included in the scheme will be improved by irrigation or drainage, or both. Upon filing the notice for record like a deed to real property, the corporation is authorized to incur debts and obligations which shall constitute liens to run with the land. Membership in the concern depends upon ownership of realty affected by the undertaking. Generally, the institution is authorized to sue and be sued, to enter into contracts, to exercise the power of eminent domain for the. purpose of carrying out its objects, to fix rates, levy assessments and issue bonds. The general design is to provide for the organization of a private corporation for the purposes detailed above. At the same session of *620the legislature Chapter 223 was enacted, providing for the organization of irrigation districts, under the supervision of the County Court, on the petition of 50 or a majority of the holders of title to land susceptible of irrigation from a common source. A prominent feature of this system is an election upon published notice under the supervision of the County' Court to determine whether the district shall be organized, which, being favorable, empowers the corporation to tax the property within its territory, to issue bonds when authorized by an affirmative vote of the electors within the district, and generally to carry on business much the same as the private corporation, already mentioned, as organized under Chapter 172. The defendant was called into existence by a vote of the freeholders of its district. It has taken proceedings that resulted in á sale of the plaintiff’s land for the payment of an assessment which it is said to have levied thereon.' The individual defendant Lucraft is the purchaser at that sale. The plaintiff, asserting that he is a member of a private corporation known as the Snake Eiver District Improvement Company, which includes his lands, and which was .organized under Chapter 172, supra, prior to the formation of the defendant irrigation district,' claims that his realty is exempt from the authority of the defendant, and asks that the assessment be set aside and his property excluded from the boundaries of the defendant district. The defendant, after making some denials, avers its organization, the publication of notice thereof, and the election resulting favorably thereto, all with the knowledge of the plaintiff, claiming as a result that he is estopped thereby. A further matter in estoppel is based upon a proceeding under the statute authorizing the institution of the *621defendant, whereby the Circuit Court in the case of Board of Directors of the Payette-Oregon Slope Irr. Dist. v. Peterson, 64 Or. 46 (128 Pac. 837, 129 Pac. 123), determined the regularity of the organization of the defendant and its issuance of. bonds. The new matter of the answer is denied by the reply. From a decree for the plaintiff the defendants appeal.
The question here to be determined is whether or not the plaintiff’s land is subject to taxation at the hands of the defendant irrigation district. The claim of the defendants is either valid in toto or wholly void. The plaintiff is either entitled to have the proceedings under which his land was sold utterly disregarded, or he is subject to pay the amount required for redemption, in default of which he must lose his land. His contention is that the Snake Eiver District Improvement Company, which he assisted in organizing, is a municipal or public corporation possessing governmental powers,, and, being prior in time of organization, is paramount to and exclusive of the irrigation district which he likewise styles a public corporation. His theory is that two public corporations exercising the same functions cannot exist in the same territory nor exercise authority over the same persons or things. Whatever may be said of the Snake Eiver District Improvement Company, it is clearly not a municipal nor public corporation. It was formed by the voluntary unanimous acts of the corporators. It exists solely for private purposes, the improvement of the lands of the individual corporators. It does not possess the power of taxation. Like any other private corporation it has the power to assess and collect dues from its members, enforcing them as provided in Section 9, Chapter 172, supra, by a foreclosure *622suit in equity. The burden imposed upon the lands is the result of the voluntary contractual action of persons directly interested in the result. The corporation under Section 12 of the act must pay to the Secretary of State an organization fee and an annual license fee like any other private corporation. These .characteristics serve to exclude the Snake River District Improvement Company from the category of a municipal or public corporation, whatever may be said of the defendant institution. On the other hand, referring to Chapter 223 of the Laws of 1911, we find provided in Section 6167, L. O. L., as amended by the latter act:
“Whenever fifty, or a majority of the holders of title to lands susceptible of irrigation from a common source or combined sources and by the same system or combined systems of works desire to provide for the irrigation of the same, they may propose the organization of an irrigation district, under the provisions of this act, and when so organized such district shall have the powers conferred, or that may hereafter be conferred, by law, upon such irrigation districts.”
The rule for inclusion of lands as thus defined is that they must be susceptible of irrigation from a common source or combined sources, and by the same system or combined systems of works. The exceptions to this general rule are found in the following-language quoted from Section 6168, L. O. L., as amended:
‘ ‘ Provided, that no land included within the limits of any city or town shall be included in any irrigation district ; that said court shall not modify said boundaries so as to except from the operation of this act any territory within the boundaries of the district proposed by said petitioners which is susceptible of irrigation by the same system of works applicable to other lands in such proposed district, nor shall any lands which *623will not, in the judgment of said court, be benefited by irrigation by said system, be included within such district. ’ ’
What may be termed a quasi exception is also found in Section 6186, treating of the assessment of taxes upon property within the district as follows:
“Provided, that in no case shall any land be taxed for irrigation purposes under this act which from any natural causes cannot be irrigated or which is incapable of cultivation; and provided further, that where ditches, canals, reservoirs, or other irrigation works or pumping plants are actually constructed and in operation at the time of the organization of the irrigation district, the lands actually irrigated therefrom at that time shall not be liable to be taxed under the provisions of this act, except for benefits accruing thereto by reason of the construction or maintenance of a drainage system or works by said district, until such time as such irrigation district shall purchase, lease or acquire, by condemnation or otherwise, such ditches, canals, reservoirs, pumping plants or other works, including water rights.”
Again in Section 6179, as amended, in speaking of the board of directors, this language is used:
“Said board shall also have the right to acquire, either by lease, purchase, condemnation, or other legal means, all lands and waters and water .rights, rights of way and other property, including canals and works constructed and being constructed by private owners, necessary for the construction, use, supply, maintenance, repair and improvement of any canal or canals and works proposed to be constructed by said board, and shall also have the right to so acquire lands and all necessary appurtenances for reservoirs for the storage of needful waters, or for any other purpose reasonably necessary for the purpose of said district. The property, the right to condemn which is hereby given shall include property already devoted *624to a public use which is less necessary than the use for which it is required by the district, whether used for irrigation or any other purpose. * * The use of all water required for the irrigation of the lands of any district formed under the provisions of this act, together with all water rights and rights to appropriate water, rights of way for canals and ditches, sites for reservoirs and all other property required in fully carrying out the provisions of this act is hereby declared to be a public use more necessary and more beneficial than any other use, either public or private, to which’ said water, water rights, rights to appropriate water, lands or other property have been or may be appropriated within said district to an extent less than the whole thereof. ’ ’
The act under which the Snake River District Improvement Company was formed is merely cumulative legislation on the subject of the formation of private corporations. Everything that could be accomplished by that act could have been effected by a corporation organized under previous legislation. Designedly the enactments under which the Payette-Oregon Slope Ir-' rigation District was formed is wider in its scope, and gives to such an institution far greater and more comprehensive powers than the other act referred to. The authority exercised by the defendant is based upon the will of the people in establishing a district susceptible of irrigation from a common source. Its sanction is visited upon the willing and the unwilling, provided a majority of the voters so direct. Its organization is carried on under the supervision of a judicial tribunal, the County Court. It possesses the power of taxation and its monetary exactions promulgated under that, authority are enforced by the tax collectors at the same time and in the same manner as state and county taxes are collected. It is plain that if the plaintiff had so *625desired, lie might have petitioned for the organization of snch a district as the defendant. Although he may have provided through his private corporation or on his own individual resources for the irrigation of his land, he was eligible to vote for the formation of the defendant institution. Being thus qualified to enter into it voluntarily, he is subject to. the majority action of other landholders similarly situated. In the exercise of its police power the legislature has provided against the possibility of a small minority escaping its just contribution to the public good by the mere organization of an inadequate scheme sufficient only to comply with the bare letter of the law. The act under which the defendant was organized requires that: .
“The court shall in all actions or suits or other proceedings take judicial knowledge of the organization of, and boundaries of all irrigation districts which have been heretofore or may be hereafter organized under the provisions of this act”: Section 6169, L. O. L., as amended:
The same section provides for a contest of the election on organization by any person owning property within the proposed district liable to assessment. It requires that the contest shall be instituted within 60 days after the canvass of the vote and the announcement of the result by the County Court, and declares that:
“After the expiration of said period of sixty days no action or suit shall be commenced or maintained or defense made affecting the validity of the organization of any irrigation district organized under the provisions of this act.”
The whole substance of the plaintiff’s complaint is bound up in the sufficiency or nullity of the defendant *626district, as affecting Ms lands. In several cases we have held that this question cannot be raised nor decided by injunction: Bennett Trust Co. v. Sengstacken, 58 Or. 333 (113 Pac. 863); Splonskofsky v. Minto, 62 Or. 560 (126 Pac. 15); Tyree v. Crystal District Improvement Co., 64 Or. 251 (126 Pac. 605).
The act authorizing the existence of the defendant establishes a procedure for the subsequent exclusion of lands rightfully included in the first instance. The owner of realty who desires to have the same excluded is required to petition the board of directors for that purpose. Notice must be given by publication in some newspaper, requiring persons objecting to the same to show cause why it should not be granted. The exclusion of such land is left to the discretion of the board as the best interest of the district shall appear to them; but with this proviso appearing in subdivision (d) of Section 25, Chapter 223, Laws of 1911:
“Provided, that it shall be the duty of said board to so order, upon petition therefor, as aforesaid, that all lands so petitioned to be excluded from said district shall be excluded therefrom which cannot be irrigated from or which are not susceptible to, or would not, by reason of being permanently devoted to uses other than agricultural, horticultural, viticultural or grazing, be directly benefited by the actual irrigation of the same from a common source, or by the same system of works with the other lands of said district, or from the source selected, chosen, or provided, or the system adopted for the irrigation of the lands of said district, or which are already irrigated, or entitled to be irrigated, from another source or by another system of irrigation works. ’ ’
The complaint was amenable to the general demurrer because it does not show that the plaintiff’s lands come within any of the exceptions mentioned. *627It is not within the limits of any city or town. It is not impossible to irrigate it. On the contrary, it appears clearly in the testimony, and is not contradicted by the complaint, that plaintiff’s holdings are susceptible of irrigation from a common source applicable to other lands within the project of the defendant. The complaint does not show, either, that the plaintiff’s realty was actually irrigated at the time of the organization of the defendant district. On this point the testimony unquestionably shows that the land has not, even to the time of the hearing, been irrigated from any source. This excludes it from the exception against taxing lands actually irrigated.
Mention is made of an application of the plaintiff to have his lands excluded, but this was not prosecuted beyond the action of the board of directors, and even if he had shown that his lands were already irrigated, or entitled to be irrigated, by any source or from,an-, other system of irrigation works, this would not exempt him from obligation to pay existing liens or indebtedness, for it is provided in subdivision (i) of Section 25, supra:
“Nothing in this act provided shall, in any manner, operate to release any of the lands so excluded from the district from any obligation to pay, or any lien thereon, of any valid outstanding bonds, or other indebtedness of said district at the time of the filing of said petition for the exclusion of said lands, but upon the contrary said lands shall be held subject to said lien, and answerable and chargeable for and with the payment and discharge of all of said outstanding obligations at the time of the filing of the petition for the exclusion of said land, as fully as though said petition for such exclusion were never filed and said order or decree of exclusion never made; and for the purpose of discharging such outstanding indebtedness, said *628lands so excluded shall be deemed and considered as part of said irrigation district the same as though said petition for its exclusion had never been filed or said order or decree of exclusion never made and all provisions which may have been resorted to, to compel the payment by said land of its quota or portion of said outstanding obligation, had said exclusion never been accomplished, may, notwithstanding said exclusion, be resorted to to compel and enforce the payment on the part of said land of its quota or portion of said outstanding obligations, of said irrigation district for which it is liable, as herein provided.”
In brief, the organization of a district like the defendant is a proper exercise of the power of the people, manifested by an election held under the forms of law for that purpose. It voices the greatest good for the greatest number, and cannot be obstructed by any dog-in-the-manger policy of a minority. The plaintiff had his opportunity to contest the validity of the corporation, and the election resulting in its organization, at any time within 60 days after the result of the vote was declared. He did not avail himself of that privilege so far as the record discloses. Under the terms of the statute this concludes him. Moreover, as disclosed by the record, acting under the authority of the statute, the directors instituted a suit to determine the validity of the organization of the defendant and its right to issue bonds. By virtue of the law in question, the plaintiff had a right to appear in that procedure and again contest the regularity of the defendant organization, including its right to tax his holding. He suffered that opportunity to pass. He availed himself of the right to petition for the exclusion of his land, and his petition was denied. He has. had his day in court on all these several occasions, and it is too late now, and the procedure .in this case is unavailing, as we have *629seen, to test the questions he would raise. He had a right to employ as many private means as he chose to irrigate his land; hut this does not exclude the right of the people who live under similar conditions to make him contribute ratably to the larger and more comprehensive scheme of general irrigation. The act under which the defendant operates declares the use of water in which it engages paramount to every other use. It authorizes the condemnation of such works as the Snake River District Improvement Company is shown to have contemplated. Whether we consider the corporations public or private, they are clearly in different classes so far as their organization is concerned. The legislative power, as well it might, has vested the defendant corporation with greater and more extensive power than that possessed by the improvement company inaugurated by the plaintiff and his associates. The latter must yield to the greater authority of the defendant district. These considerations lead to a reversal of the decree of the Circuit Court, without prejudice to the right of the plaintiff to redeem his land from the effect of the sale as permitted by the statute.
For these reasons I dissent from the majority opinion.