(190 P.) It is next insisted that the order to open the safety deposit box was not a "lawful order," and for that reason the appellants should not have been adjudged guilty of contempt. We have, however, arrived at a contrary conclusion, as appears from the opinion in the case which precedes this one, and hence this contention cannot prevail. client to that effect. We have very carefully read all of the evidence and the proceedings in this case, and, after doing so, and without pausing here to set forth the evidence, have been forced to the conclusion that what was said and done by counsel, in view of all the circumstances, does not constitute a criminal contempt. The conviction is forced upon us [2] The next assignment is that "the court that the appellant Thomas, who was first erred in finding that the acts and conduct of called upon for advice, in the best of faith asthe defendants [appellants] constituted crim-sumed that the order of the court could be sucinal contempt." This, to our minds, presents cessfully assailed upon several grounds: (1) the serious question in this proceeding. It That the order was not enforceable because will be observed that the order was not di- the contents of the safety deposit boxes, were rected to the appellants, or to either of them, not subject to garnishment; (2) that the box but was directed to the garnishee. It must could not be opened in the usual manner bealso be kept in mind that while the appel-cause the cashier was unable to obtain the lants were not parties in interest they, never- use of the customer's key in connection with theless, were not merely volunteers, but by the master key, and hence the garnished virtue of their calling, and as attorneys of should not be required to open the box; and the garnishee, were called upon to give ad- (3) that at all events, in view of his commuvice to their client in a matter which was of nications with counsel for the plaintiff, the great importance to such client, as pointed box was not required to be opened until after out in the preceding case. While it is the he had time to present a motion to vacate duty of attorneys at law, who are officers of and set aside the order. Such was also the the court, to promptly obey all lawful orders conclusion of Mr. Snow. As pointed out in of the court and to advise their clients when the preceding case, the law is stated in 20 called on for advice to obey them, yet it is Cyc. 1022, to the effect that according to the also their duty, in case a reasonable doubt weight of authority the contents of safety exists respecting the jurisdiction of the court, deposit boxes are not subject to garnishment. or that the order in question was improvi- The question had not been before the courts in dently made, to preserve and protect the legal this jurisdiction, and therefore had not been rights of their clients by assailing any order decided. Moreover, there are some respectable in a proper manner and at the proper time. authorities which support the text in Cyc. Our Constitution (article 1, § 11) provides: True, we have since held the law to be otherwise in this jurisdiction. The question was, however, an open one at the time the alleged contempt was committed, and hence any lawyer would have been justified in assailing such an order, and especially under the circumstances in which the cashier was placed. We are clearly of the opinion, therefore, that under all the circumstances appellants had a clear legal right to assail the order in question, and therefore their conduct and that of the cashier in refusing to comply with the order forthwith did not constitute contempt. "All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or defending before any tribunal in this state, by himself or counsel, any civil cause to which he is a party." [4] In arriving at such a conclusion we are not unmindful of the fact that Mr. Thomas was indiscreet in using the expletive he did in characterizing the order in question as a "foolish," or as a "damned foolish," order. What he said was, however, said long after the order was made, and was in no sense intended or calculated to intimidate or to [3] This means that courts are open for the purpose of having any order or judgment assailed in the proper manner and at the proper time, precisely the same as they are open for the redress of wrongs and for the enforcement of rights. If, therefore, the appellants had good cause to believe, and in good faith did believe, that the order in question was in excess of the court's power or jurisdiction, or that it was improvidently issued and for that reason vulnerable, or that the order merely required that the safety box | impugn either the motives or the dignity of be opened in the usual manner, that is, by using the customer's key in connection with the master key, and they believed that the cashier could not obtain the customer's key, and was thus unable to open the box except by the use of such force as would injure the same or the vaults in which it was placed, then appellants were not only within their rights in assailing it, but it was their duty to assail the order in a proper manner and at the proper time, and to advise their the court. As pointed out by that eminent jurist, Mr. Justice Brewer, in Re Pryor, 18 Kan. 72, 26 Am. Rep. 747, much more latitude is allowed counsel in criticizing the courts after the judgments or orders have been entered than while the matters are still pending before them and remain undetermined. The case just referred to is very illuminating and instructive upon that point, and clearly points out the distinction between what is harmless criticism and what is really harm * the court Such is also the law in England. Moreover, the mere fact that an attorney has advised his client to act contrary to the order or judgment, or to disregard it, does not necessarily constitute a contempt of court. In re Kepecs, 123 N. Y. Supp. 872. ful and contumacious on the part of attor- [and did it have jurisdiction to enter the judgneys and therefore may be punished as a ment in the contempt proceedings? The contempt. It is manifest to us that neither other is, Did the acts, words, or conduct comone of the appellants by what was said or plained of constitute a contempt? Attorneys done at the somewhat heated interview with are officers of the court, and as such may be the deputy sheriff intended to be disrespect- summarily dealt with in case they offend ful to the court, much less was it their in- against the dignity of the court. In case tention to willfully or contumaciously advise the offense is serious they may be suspended the violation of the order. What was said or even disbarred from practice altogether. was said in the heat of controversy, and what The consequences may thus be very serious was done was done with a view of legally as- and far-reaching. For that reason, as is well sailing the order at the proper time and in stated by the Supreme Court of North Carothe proper manner pointed out by our prac-lina in the case of Ex parte Robbins and tice. In this connection it should also be Jackson, 63 N. C. p. 312, kept in mind that while it was not essential will not be easily prevailed on to proceed in to the court's jurisdiction that the garnishee this manner [contempt proceedings], if it apbe notified that the order would be made, yet, pears that the matter complained of was in view that it was made upon an ex parte rather owing to neglect or accident than deapplication, and in view that Mr. Thomas sign. sincerely questioned the court's power to make such an order, he had especial reason for assailing it by motion; and to do that was manifestly proper, if for no other reason than as a basis for an appeal to this court. [5] We are also aware that in contempt proceedings appellate or reviewing courts should be careful in interfering with the findings and judgments of the courts in such proceedings. If the alleged contempt here were a direct contempt, that is, one committed in the presence of the court, or, even, if the alleged offensive words had been uttered and the objectionable conduct had occurred before the order in question was made and while the question whether, it should or should not be made was still pending, as was the case in Re Pryor, supra, the case would be somewhat different. Under such circumstances we should long hesitate before we interfered with the findings of the court and with its judgment adjudging appellants guilty of contempt. In such cases the court cannot, with any degree of accuracy, reflect the proceedings in the record; nor can it accurately describe the demeanor and conduct of counsel which occurred in the court's pres ence. In a case like the one at bar, however, The record in this case shows that the trial court exercised great, almost infinite, patience in trying the case. The appellants were given every opportunity to exculpate themselves, and, as we think, succeeded in doing so. In our judgment, the only serious error of the court lies in the fact that it laid too much stress upon the naked fact that the appellants had advised the cashier to refuse to comply with the order to open the box and deliver its contents to the sheriff. The court seemingly overlooked the fact, and did not give sufficient consideration to appellants' efforts and preparations and purposes to assail the order, and in advising the cashier not to open the box for the other reasons hereinbefore stated. In view of the circumstances of this case, we are of the opinion that appellants were acting within their rights in what they adof them, committed was in the use of imvised; that the only offense they, or either proper language, which, while not excusable, nevertheless, falls far short of being contumacious, and hence did not constitute a contempt of court. In view that the proceedings in this case were initiated by the court itself, and that the plaintiff in the principal action took no part in defending or justifying the court's action, and did not in any way participate in the contempt proceedings, no order with respect to costs will be made. he have substantially the same opportunity to judge of the conduct and of the acts that the trial court had. True, that court had the advantage of hearing and seeing the witnesses testify, and in case of conflict was in a better position than we are to pass upon the weight and credibility that should be given to their statements. In this case, however, there is little, if any, real conflict respecting the controlling facts, and where there is such we have followed the statements of the deputy sheriff. We have, however, also kept in mind that in contempt proceedings where appeals are allowed it is the duty of reviewing courts remanded to the district court, with directo pass upon at least two questions in additions to vacate and set aside the findings and tion to such other propositions of law as may be presented. One of those questions is, Did the trial court have jurisdiction to enter the judgment or make the order which is For the reasons stated the judgment ad judging the appellants guilty of contempt and imposing a fine is reversed, and the cause is judgment, and to dismiss these proceedings and to discharge the appellants. CORFMAN, C. J., and WEBER, GIDEON, (190 P.) (96 Or. 649) BOARD OF DIRECTORS OF MEDFORD IRR. DIST. v. HILL. (Supreme Court of Oregon. July 6, 1920.) 1. Waters and water courses 225-In confirmation proceedings to organize irrigation district, court should examine all questions, whether discussed or not. In proceedings for the confirmation of the organization of an irrigation district and the issuance of its bonds, which are in the nature of proceedings in rem, the Supreme Court on appeal from a decree of confirmation must examine every question presented by the record, whether discussed in the briefs or not. 2. Waters and water courses 225 Court may confirm irrigation district as to nonappearing parties without notice. In proceedings to confirm the organization of an irrigation district and the issuance of its bonds, neither the circuit court nor the Supreme Court have jurisdiction to enter a decree binding on landowners who did not appear, where the hearing was held before the expiration of ten days after the last publication of the notice, contrary to Laws 1917, p. 773, § 41, subds. "a," "d." 3. Waters and water courses 225-Court without statutory notice may confirm irrigation district as against party appearing. Though the statutory notice for proceedings for the confirmation of an irrigation district and the issuance of its bonds was not given, the court can determine the legality of the district and the bonds as against the objections of a landowner who appeared and answered. 4. Waters and water courses 230(1)-Order for irrigation district bond election must state general purpose. Under Acts 1917, p. 754, § 19, authorizing election for the issuance of irrigation district bonds for any purpose, the board of directors, in calling the election for a bond issue, must specify in a general way the purpose for which the bonds are to be sold, and cannot, after the election, abandon the purpose stated entirely and sell the bonds to finance a totally different plan. 5. Statutes 226-Difference from state irrigation district act of another state held to preclude adoption of construction. Where the irrigation district act of another state authorized an election for the issuance of district bonds in the amount determined, while the Oregon statute requires an election for the issuance of bonds for any purpose, the Legislature cannot be held to have adopted a construction previously placed on the act of the other state as not requiring the purpose of the bonds to be stated in the call for election. question whether the bonds required for the project previously determined shall be issued to that of Acts 1917, p. 754, § 19, requiring an election for issuance of bonds for any purpose, does not indicate an intention to abolish the necessity of stating the purpose of the bonds in the call for the election. 7. Waters and water courses 230 (1)—Purpose of district bonds need be stated only generally. In stating the purpose for which irrigation district bonds are to be issued, it is not necessary to state more than a general plan, and such plan may be modified or changed in particulars after the bonds are authorized, but cannot be completely abandoned and another plan adopted. 8. Waters and water courses 230 (1)—Bonds issued on insufficient resolution calling election held invalid. Where the resolution of the board of directors of an irrigation district adopted a particular project in one paragraph, and in the ner paragraph called an election to authorize a bond issue, the sale of bonds authorized at that election to construct a totally different project from that adopted is invalid, whether the resolution be construed as calling the election to issue bonds for that project or as not stating the purpose of the bond as required by statute. 9. Waters and water courses 226-Lands can be eliminated from district only by strictly following statutory proceedings. Lands can be eliminated from an irrigation district after its organization over the objection of other landowners in the district only by strictly following the statutory procedure therefor, including the publication of notice; a stipulation between the district and the owners of the land to be eliminated cannot authorize the elimination of the land as against those not parties thereto. In Banc. Appeal from Circuit Court, Jackson County; Frank M. Calkins, Judge. Proceedings by the Board of Directors of Medford Irrigation District for a confirmation of the regularity and legality of the organization of the district and the issuance of the bonds of the district, in which Dillon R. Hill appeared and answered in objection to the confirmation. Decree of confirmation, and objector appeals. Decree affirmed in so far as it confirmed the organization of the district, and modified and reversed in so far as it affirmed the issuance of the bonds. This is a proceeding brought in the circuit court of the state of Oregon for Jackson county to confirm the creation and organization of an irrigation district and the election and proceedings authorizing the issue and sale of the bonds of said district in the sum of $1,500,000 for irrigation purposes. According to the petition for the original For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes stipulation a decree of this court was so ordered. organization of the district, and the order of the county court creating the same, the district was to comprise 18,500 acres of land. The facts as to the change of the project An election was called and the district was and the elimination and consequent reduction organized and officers elected. After the or- of the irrigation district to about 10,000 ganization the board of directors met and acres does not appear from the petition of adopted a project, designated as the "Big the board of directors to have such proceedButte project," for the obtaining of water | ings confirmed; but the defendant, Hill, who to irrigate the district, and directed that is now the contesting party, appeared in the bonds should be issued in the sum of $1,500,- | circuit court and filed an answer setting up 000 for the construction and installation of a system for irrigating the district, and to provide for the payment of the first year's interest on the bonds, and calling an election to determine whether or not the bonds should be issued. At the election the result was favorable to the issuance of the bonds by a small majority. There is some indefiniteness and uncertainty as to whether the order for a bond election made by the board of directors of the district was tied up definitely by such order to the Big Butte project. The resolution adopting that particular project, and the resolution calling for the bond election, were separately stated, but they seem to have been offered as one resolution and acted upon to gether by the same vote and proceeding. Thereafter this proceeding was brought in the circuit court to confirm the proceedings before the county court, the action of the board of directors, and the proposed sale of bonds. Certain of the landowners in the district, and among others the defendant Hill, appeared and contested the proceedings for confirmation, and some of them asked that their land be eliminated from the district, alleging divers grounds therefor. Pending the final decision upon this confirmation proceeding, the directors concluded that the original project, designated as the "Big Butte project," was not feasible, and rescinded the order adopting that project, and adopted an entirely different one, which is known as the "Little Butte project." It seems to be conceded that the "Little Butte project" would not furnish water sufficient to irrigate the whole 18,500 acres inIcluded in the original boundaries, and the directors concluded to permit all of those who were contesting the proceeding in the circuit court to have their lands eliminated from the district, and proceedings were had to that effect. Just how this result was brought about does not seem to fully appear from the record, but it seems that some of the landowners, holding land to the amount of something over 8,000 acres, had appealed to the Supreme Court from a decision of the circuit court refusing to eliminate their lands from the district, and upon that appeal to the Supreme Court there was a stipulation between such parties and the board of directors that their such proceedings, and making the same the basis of an objection to any order confirming the sale of the bonds of the district. There was a decree of the circuit court sustaining the proceedings and validating the issuance of the bonds, and from this decree the defendant appeals to this court. Rawles Moore, of Medford, for appellant. Lincoln McCormack, of Medford, for respondent. BENNETT, J. (after stating the facts as above). This proceeding is in the nature of a friendly suit to test the legality of the organization of the district in question and the regularity of the proceedings by which the bonds were authorized. Nevertheless the matter has been presented upon both sides with the utmost good faith and with great earnestness and ability. [1] The case is a very important one, not only on account of the very large amount of bonds which are involved in this particular proceeding, and the importance of this particular irrigation project to the development of the country in which it is situated, but because it will also establish a rule in relation to the proceedings to authorize the creation of other irrigation districts, and the issuance of bonds for such irrigation projects. The proceeding is in the nature of a proceeding in rem, and in view of its character and importance we think, before decreeing the validity of these bonds, that it would be and is our duty to examine every question presented by the record, whether discussed in the briefs or not. [2] At the outset of the case we are met with the contention on behalf of the defendants that the court has no jurisdiction to establish the validity of these proceedings, or declare the validity of the bonds, because, as contended, the notice for the hearing in the circuit court was not published in accordance with the provisions of the act authorizing the proceedings. Subdivision "a" of section 41, c. 357, Laws 1917, authorizing proceedings of this kind, provides that after the petition for the confirmation shall have been filed by the board of directors "the court shall fix the time for the hearing of said petition and shall order the clerk of the court to give and publish a notice of the filing (190 P.) and published for three successive weeks in a, "d," supra, and if that subdivision applies newspaper published in the county where the the publication was not sufficient. office of the district is situated. The notice shall state the time and place fixed for the hearing of the petition and the prayer of the petitioners, and that any person interested in the organization of said district, or in the proceedings for the issue or sale of said bonds, may on or before the day fixed for the hearing of said petition, demur to or answer said petition." Subdivision "d" further provides: The provisions of section 41 which we have already quoted are not very definite and certain. There seems to be a duplication Desion "a," on the one hand, and subdivision tween the general provisions and subdivi"d," on the other. We think, however, that taking the legislative act as a whole and construing it by its four corners, as we must do, the notice should be published three weeks, ten days before the date of the hearing, in and the last publication should be at least order to give the court jurisdiction over nonappearing landowners within the boundaries of the district, in a confirmation proceeding of this kind. It follows that neither the circuit court nor this court would have jurisdiction to enter a decree binding upon the landowners who are not appearing. [3] However, the defendant Hill has appeared and answered in the cause, which is sufficient to give jurisdiction as between him and the board of directors, who are petition "The board of directors may, within the time hereinafter limited, after the order of the county court declaring the organization of any irrigation district hereunder, or declaring the result of any election hereunder, or after the order of the board of directors of such irrigation district including or excluding any lands in or from said district or declaring the result of any election, general or special, herein provided for, or after any order of such board of directors levying any assessment, general or special, or ordering the issue of any bonds for any purpose hereunder, or after the order determining any bond issue or providing for the same, or after such bond issue, bring a proceeding in the cir-ers for the confirmation. cuit court of the county in which the district, or the larger portion thereof, is situated for the purpose of determining the validity of any of the acts or things in this section above enumerated. Said proceeding shall be a proceeding in the nature of a proceeding in rem, and the practice and procedure therein shall follow the prac-ing for the organization of the district, tice and procedure of suits in equity so far as which has been pointed out, or which we the same shall be consistent with the determin- have been able to discover, which would be ation sought to be obtained except as herein fatal thereto, under the previous decisions provided. of this court. "Jurisdiction of the said irrigation district, of each and all of the freeholders, assessment payers and legal voters therein shall be obtained by the publication of notice directed to said district and to 'all freeholders, legal voters, and assessment payers within said district' without naming such freeholders, legal voters, and assessment payers individually. Such notice shall be served on all parties in interest by publication thereof for at least once a week for three successive weeks in some newspaper of general circulation published in the county where said proceeding is pending, and jurisdiction shall be complete within ten days after the full publication of said notice as herein provided." The notice in this case was dated the 16th day of January, 1919, and the time of the hearing, as set therein, was the 8th day of February, 1919. It was published in the Medford Mail Tribune, and the affidavit of publication states that "It was published in the regular and entire issue of said newspaper, once each day for three successive weeks; the first publication thereof having been made on the 17th day of January, 1919, and the last publication thereof having been made on the 7th day of February, 1919." In order, therefore, that there may be no unnecessary delay, we will proceed to decide the question in issue, as between the petitioners and the defendant Hill. There is no defect in the original proceed The constitutionality of this act has been frequently upheld in this state. Links v. Anderson, 86 Or. 508, 168 Pac. G05, 1182; Gard v. Peck, 91 Or. 33, 178 Pac. 186; Hanley Co. v. Harney Valley Irr. Dist., 93 Or. 78, 180 Pac. 724, 182 Pac. 559. The constitutionality of a similar act in California has been many times upheld by the Supreme Court of that state, and finally by the Supreme Court of the United States in Fallbrook v. Bradley, 164 U. S. 112, 17 Sup. Ct. 56, 41 L. Ed. 369. We think, therefore, there was no error in the decree of the circuit court, in so far as it confirmed the organization of the district, and the proceedings in relation thereto. As to that portion of the decree of the circuit court confirming the validity of the bonds to be issued, it appears that the original proposition, at the time the bonds were voted, was to bring in the water of a certain stream, known as Big Butte creek, at an estimated cost of $1,500,000, and the projected district at that time included about 18,500 acres, so that the estimated cost was $75 per acre. It is alleged in the answer of defendant Hill, and expressly admitted in the petition So it will be seen that there was no tener's reply, that this project has been entirely days after the last publication of the three abandoned, and that since the election upon weeks of notice, as required by subdivision the bonds the board of directors has rescind |