Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1881-05-18
CONSTITUTIONAL Law.
The constitutionality Of the Drainage Ac'
Before the Supreme Court.

Yesterday. The action was brought by tn
People against w. H. Parks Niles Searle
and w. F. Knox, Directors of Drainage Dis
trict No. l, for the purpose, first, of oustinl
the defendants from the office Of Directors o
that pretended drainage district second, t.
enioin them from letting contracts for build
ing levees and works of drainage; third, t.
enioin them from levying the tax authorized
by the Drainage Act; fourth. for decree
determining that Drainage District No.
was not legally formed and is not drainag
district.
The judgment of the Superior Court wa
pro fofma in favor of defendants, and thu
People appealed. Upon the appeal tn,
People are represented by J. Fl. Dickinson
Jas. a. Waymire and W. II. Sears, and ths
Directors by Jas. K. Byrne, W. c. Belcher
[. S. Belcher and W. T. Wallace. The Cour
limited each side to one hour and hall.
J. II. Dickinson for tine appellants opened
the argument in short address, in which he
read the Drainage Act and briefly outlined
the objections to it, which he said he would
further notice and elaborate in brief he in.
tended to file.
He stated that inasmuch as the Attorney
General believed the Act to be constitutional,
that officer would take no part in the dis
cussion. Mr. Dickinson's objections to the
Act, and the reasons he should urge why it
should be held unconstitutional and void
were
First-Because the subject of the Act is
not expressed in the title. and is therefore re.
pugnant to Section "a of Article ". Of the
Constitution. The title is simply "An Act
to promote drainage" and the subjects
treated of in the Act are various and incon-
gruous.
are not equal and uniform, and one of the
three several taxes provided is levied upon
the property in the State at large for the
erection Of works of drainage in particular
district, and for the benefit OF those living in
that district alone.
After obtaining leave to Sic brief in ten
days, Mr.. Dickinson gave way to James 4.
Waymire on the same si1e, who made the
following points, some CT which he briefly
elaborated:
First-The Act is unconstitutional, be-
cause it attempts to delegate legislative power
to a board, to wit: the power to create
municipal corporations is delegated to the
! State Board of Drainage Commissioners,
consisting of the Governor, Surveyor Gen
eral and State Engineer. In support of this
he cited ex parte Wall, As Cal. Houghton
Vs. Austin, AZ Cal
Second-The Act is repugnant TO Section
6 of Article II. of the Constitution, because
it is special law authorizing the formation
OF municipal corporations. That drainage
district, as described in the Act, is public
or municipal corporation, was held by the
Court in Dean VS.. Davis, which decided
/ swamp land districts to be public or munich
pal corporations. He also cited the decision
| of the Court in Desmond Vs. Dunn, the Nc.
Clure charter case, and argued that this Act
was special in the same sense in which the
! Mcclure charter was special
Third-It is an attempt BIZ the Legislature
! TO levy tax within the limits of municipal
4 corporations, to wit, cities and towns within
1 the drainage district, and thus repugnant to
4 Section II of Article Y |. Of the Constitution
In support of this he cited 81 Cal, 321; 81
Cal Is; 50 Cal; "a Cal. $50 Rec. Dist.
\ ZOOS vs. Hagar, 6 P. c. L. j.. 1873.
Fourth-Section II of the Act is repugnant
to the Constitution, because it is an attempt
! by special Act to confer the power of eminent
domain, power which can only be exercised
by the soyereign-the State.
Ffth-lt Is special, because it excei t.
| claims Of the district and Board of Directors
| from the need of being investigated and ap-
proved by the State Board of Examiners.
Sixth-The Act embraces more than one
subject, and the subject is not expressed in
the title (Const., Art ", See. 24)
| Seventh-It is special law providing for
the levy and collection OF a tax, and thel efore
Prohibited by Article ", Section %, Subdi.
vision 80, Of the Constitution.
Eighth-That under it State tax is au-
thorized and levied for the benefit Of por-
ton of the State, citing People vs. Townsend,
P. G. L. j. 100 1t is like levying tax in
Sacramento to build Courthouse in San
Francisco.
Ninth-Tbe title is misleading and decep-
tive inasmuch as drainage is not the real OBJ
ject, but prevention of land from overflow
and the arrest and detention of debris from
the mines
Tenth-The Act creates special Commits
sion, and vests the members of it with mu-
nicipal function, and therefore inhibited by
Section Is, of Article y, of the Constitution
Eleventh-The Act authorizes special
commission to levy taxes and perform govern
mental duties within cities and towns.
Twelfth-The Act is special in its scope as
to its object ard locality. 1t authorizes a
perpetual tax, without the consent of the dis
trict and people taxed.
Mr.. Waymire closed by saying that the
point he considered the strongest and the one
he relied upon with the frmest faith of its
soundness was the point that the Act is a
delegation Of general legislative power 1t
attempts to confer power to create munich
pslities upon a board of persons. This power
to create public corporations, quasi municipal,
and to fix their boundaries, canEot be dele
gated. He cited numerous statutes in which
the Legislature of this State has created
counties, cities towns aud irrigation districts,
and in ca IN case the boundaries of tax of the
district were absolutely fixed by the legisla.
tive Act itself He referred to the origin and
/ history OF the taxing power, and claimed
that in this Act the Legislature had violated
all precedents and overstepped the bounds of
~ a,,thovifx Nv Ill -,
create these public corporations and to tax
the property in them to an outside board or
commission.
james X. Byrne for the respondents fol-
lowed. He confined his argument to a
reference and reading OF authorities upon the
question as to whether the title Of the Act
sufficiently expressed the subject of the Act
He said the object of the constitutional provi
sion, requiring each Act TO have but
ose subject, and that subject expressed
in the title, was to prevent surrep-
titious legislation, and the fraudulent in
! PRODUCTION into legislative Act of matter
homogeneous with the subject as expressed in
the title and foreign 10 the scope of the Act
as thus Indicated. He cited numerous diff.
/ ferent cases, in which similar section in the
! Constitutions Of other State. has been CON
strued, among them the following cases
| Parkinson VS.. the State, IA Nd. 1874: Bur
! kett ". Chicago. W Ills; People VS.. Law.
renee, 30 Barb; SIM Mutual Insurance Com.
paEy vs. Mayor, etc, Selden 2 Iowa. $50
| Neb, 20 H., 3S9: 80 n. Y, II Pa. ST.
| II, Me.c., KY; 20 La, Ann. 1877; Mills
vs. State, 40 Ala; SO Cal, GO; q Ind. and
Others.
Ex-Chief Justice w. T. Wallace followed
on the same side, and made very interesting
and clear exposition of the principles Of law in
volged in the construction of the Act as
view ed from his side He said that nothing
had yet been advanced by those who as
serted the unconstitutionality Of this Act
which gave him any difficulty or was at all
embarrassing to him as its defender All
intendments are in favor Of the constitu-
tionality Of the Act. It must first be at.
tackled by specific pointing out of the con-
stitutional provisions to which it is opposed.
In this case he had listened but was unfortu.
nate in not hearing anything which could
be called serious or embarrassing arraign.
ment Of the Act as sinner against the Con-
stitution. The Legislature has expressed its
viii as to how certain drainage districts shall
be formed the agents who execute its will
and find and fix the boundaries of these dis.
tricts DO not create the districts. The nec.s.
sity for them and the declaration that they
shall be formed out of certain kind of ter
ritory or country is the Act of the Legisla-