In two suits brought by the state to cancel deeds to swampland issued by it, the defense of laches was sustained: State v. Warner Valley Stock Co., 56 Or. 283, 106 P. 780, 108 P. 861; State of Oregon v. Hyde, 88 Or. 1, 169 P. 757, 171 P. 582, Ann Cas 1918E 688, of which more later. There were similar holdings in quo warranto actions: State ex rel. Security Savings Trust Co. v. School District No. 9, supra; State ex rel. Hallgarth v. School District No. 23, 179 Or. 441, 172 P.2d 655; State ex rel. Teegarden v. Union High School, 152 Or. 412, 53 P.2d 1047; State ex rel. Weatherford v. Hayworth, 152 Or. 416, 53 P.2d 1048. In these cases the writs were sued out by private relators and it should be noted that in State ex rel. Security Savings Trust Co. v. School District No. 9 the court called attention ( 148 Or at 286) to the following statement from O'Leary v. Reiner, 9 NJ Misc 950, 156 A. 120:
Property owners are estopped by reason of continued acquiescence to question directly the validity of the extension of the boundaries of a municipality. 1 McQuillin-Municipal Corporations, second edition, p. 844; 101 A.L.R. 581; Black v. Brinkley, 64 Ark. 372, 15 S.W. 1030; Village of Lynbrook v. Cadoo, 252 N.Y. 308, 169 N.E. 394; State ex rel. Landis v. City of Coral Gables, 120 Fla. 492, 163 So. 308, 101 A.L.R. 578; State ex rel. Hallgarth v. School District No. 23, 179 Or. 441, 172 P.2d 655; State ex rel. Teegarden v. Union High School Dist. No. 1, 152 Or. 412, 53 P.2d 1047; State ex rel. Weatherford v. Hayworth, 152 Or. 416, 53 P.2d 1048. Payment of taxes constitutes acquiescence amounting to estoppel and laches.
We cited, with approval, School Dist. No. 1 v. School Dist. No. 45, supra. In the Tompkins case, it was asserted that under the authority of State ex rel. v. School District No. 23, 179 Or. 441, 172 P.2d 655, a quo warranto proceeding was the sole remedy where a de facto municipal corporation existed. We held that under § 6-602, OCLA, plaintiff had the right to have the validity of the annexation determined since its rights were affected, and that quo warranto was not the sole remedy.
Nevertheless, the court later quoted the broad sentence that "the doctrine of laches is applicable to the state" in cases in which the name of the state appeared only pro forma in actions by private relators to challenge the legality of school districts. State ex rel v. School District No. 23, 179 Or. 441, 461, 172 P.2d 655 (1946); State ex rel School District No. 9, 148 Or. 273, 287, 31 P.2d 751, 36 P.2d 179 (1934). See also State v. Union High School, 152 Or. 412, 53 P.2d 1047 (1936).
35 Or at 556-57 (emphasis added). See also State ex rel. v. School District No. 23, 179 Or 441, 460-61, 172 P2d 655 (1946) (dismissing challenge to defective school consolidation order on grounds of laches and stating that three elections — one for school district directors, another ratifying district's selection of school site, and a third approving the sale of bonds — "were, in effect, successive ratifications by the voters of the consolidation order"). Cases from other jurisdictions similarly hold that subsequent legislation can validate constitutionally defective laws by implication.
See Griffin v. City of Canon City, 147 Colo. 15, 362 P.2d 200 (1961); Phillips v. City of Odessa, 287 S.W.2d 518 (Tex Civ App 1956); Annotation, 18 ALR2d 1255, 1258 (1951). Although there is no Oregon case directly holding that quo warranto is the exclusive remedy to challenge a de facto annexation, quo warranto has been required in Oregon in other areas of public law: State ex rel Hallgarth v. School Dist. No. 23, 179 Or. 441, 172 P.2d 655 (1946) (de facto school district); Northern Pac. Ry. Co. v. John Day Irr. Dist., 106 Or. 140, 211 P. 781 (1923) (de facto irrigation district); Tyree v. Crystal District Improvement Co., 64 Or. 251, 253, 126 P. 605 (1913) (de facto improvement district); Bennett Trust Co. v. Sengstacken, 58 Or. 333, 352, 113 P. 863 (1911) (de facto port district). The extent to which these limitations on the right to contest a municipal annexation are recognized in Oregon is left in doubt by Portland General Electric Co. v. City of Estacada, 194 Or. 145, 241 P.2d 1129 (1952).
It may be added that up to this time school district authorities, members of the profession, and this court appear to have proceeded upon the assumption that this is the correct interpretation of the legislation on the subject. See McBee v. School District, 163 Or. 121, 128, 96 P.2d 207; Pullen v. School District, 95 Or. 289, 294, 186 P. 9, 187 P. 624; State ex rel. v. School District, 179 Or. 441, 452, 172 P.2d 655. We come to the only other objection to the legality of the bonds which calls for extended discussion.
The doctrine that laches is imputable against the state is one to which this court has long been committed. State v. Warner Valley Stock Co., 56 Or. 283, 304, 106 P. 780, 108 P. 861; State v. Hyde, 88 Or. 1, 40, 169 P. 757, 171 P. 582; State ex rel. v. School District No. 9, 148 Or. 273, 287, 31 P.2d 751, 36 P.2d 179; State ex rel. v. School District No. 23, 179 Or. 441, 461, 172 P.2d 655. The public interest in cases like the present is made evident when one considers that, in semi-arid regions, failure to irrigate will result in the reversion of meadow land to desert.
On the oral argument in this court it was contended by the defendants for the first time that this action is in the nature of a quo warranto proceeding to test the validity of the organization of two union high school districts, and that such a proceeding can be maintained only by, or on the relation of, the attorney general or the proper district attorney, on the ground that such matters are primarily of public interest. In support of this contention defendants cite and rely upon the case of State ex rel. v. School District No. 23, 179 Or. 441, 172 P.2d 655. That was a quo warranto proceeding brought on the relation of a taxpayer to test the validity of the consolidation of school districts. It was there decided that a "de facto municipal corporation, however, is not exempt from attack in quo warranto proceedings brought directly against it by the state or upon the relation of a private person".
That argument is analogous to two arguments commonly raised in ORS 30.510 actions: (1) the defendants obtained their offices by the wrong process and (2) the organic document purporting to give them power is invalid. See, e.g., State ex rel Kirsch v. Curnutt, 317 Or 92, 95, 853 P2d 1312 (1993) (action to oust directors of county emergency services district on ground that district was invalidly formed); State ex rel Eckles v. Woolley, 302 Or 37, 39, 726 P2d 918 (1986) (action to oust directors of State Accident Insurance Fund Corporation on ground that corporation was invalidly formed); State ex rel Boe, 282 Or at 392 (holding that an action to oust appointed member of the Board of Examiners of Nursing Home Administrators from office on ground that he was not confirmed by Senate must be brought under ORS 30.510); State ex rel Madden, 207 Or at 78 (action challenging the manner in which the defendant acquired seat on Oregon Supreme Court); State ex rel. v. School District No. 23, 179 Or 441, 443, 172 P2d 655 (1946) (action seeking to enjoin the defendants from exercising authority over school district on the ground that the school district was invalidly formed); State ex rel Adams v. Powell, 171 Or App 81, 84, 15 P3d 54 (2000), rev dismissed, 334 Or 693 (2002) (action to oust port commissioner from office to which he had been reappointed by governor on ground that his reappointment had been rejected by the Senate). In contrast, none of plaintiffs' arguments falls within the scope of ORS 258.016. Defendants admit as much with their argument that plaintiffs' complaint fails to state a claim under ORS 258.016. Plaintiffs could not state a claim under ORS 258.016 for the simple reason that this is not an election contest.