The record-union., 1891-03-30

the latter are authority as to the former,
and we cite as conclusive of this point
People VS.. Hager, (52 Cal. lSl, Id. 6S Cal.
Co., Many other decisions to the same
effect are cited in the briefs of counsel,
but we deem it unnecessary to refer to
them here.
The Superior Court did not err there
fore in refusing to allow the appellant to
introduce evidence for the purpose OF
proving that his and other lots in the city
OF Modesto would not be benefited by the
proposed system or any system of irriga-
tion. Nor did the court err in refusing
the otter of appellant to prove that the
Board OF fSupervisorsw wrongfully included
the city of Modesto in the irrigation dis
tr1ct for the purpose of carrying out the
scheme of organization against the wishes
OF the farmers outside of the city.
TO entitle the appellant to prove that
the board and its members, well know
ing that the lands OF the city would not
be benefited by irrigation, had neverthe-
less included them for the corrupt pur-
pose suggested, and not in the exercise of
their honest judgment and discretion,
the facts constituting the fraud should
have been fully pleaded in the answer.
But no such facts as he offered to prove
were pleaded.
1t is, indeed, alleged that the order in
Guiding the city was not made in the ex-
ercise of the judgment and discretion of
the board. but contrary thereto This
allegation is part of Il separate defense in
which it is coupled with other allegations
going to show that the lands of the city
would not be benefited by irrigation, but
it is nowhere alleged that the board or
any of its members actually believed ut
the time they ordered such lands to be
included in the district that they would
not be benefited. The court therefore
properly sustained the objection that the
offered evidence was immaterial.
AS to all such matters as were alleged
III the answer, the evidence shows that
the Board OF Supervisors acted with the
utmost deliberation upon the petition for
the organization of the district; that they
heard and considered numerous objec-
tons, and the testimony offered i'll sup
port of them, and did not make their
final decision until the time allowed for
deciding had nearly elapased.
The next point urged by the appellant
arises out of the fact that after the origi-
nal organization of the district, including
l0S, 900 acres, and after the proposition TO
issue csa)0,0G0 of bonds had been ratified
by vote of the electors of the district,
and after the resolution of the directors
to issue the bonds to that amount, the
Board of Supervisors had ordered a por-
ton OF the district, embracing 2S,000 acres,
to be cut off and excluded therefrom.
1t is contended that this order, which
was one Of the proceedings confirmed by
the Superior Court, was void for want of
jurisdiction III the board to make it.
The proceedings for the exclusion of
lands from an irrigation district, of which
they form part, are authorized and pre-
Scribed by another Act amendatory and
supplemental to the Wright Act, ap-
proved February 16, 1889. (Stats. 1889,
p. 2l.)
This Act provides for the filing of a
within the district, notice OF the filing OF
such petition, and time and place of hear
ing; the presentation of objections by
parties interested, and in certain cases for
a submission of the question of exclusion
to a vote of the electors of the district.
Among other things, it is provided that
if there be any outstanding bonds of the
district, no order of exclusion can be
made without the consent, in writing. of
the holders of such bonds, acknowledged
as deeds of conveyance are required to be
acknowledged.
1t is contended by the appellant that at
the time the petition for the exclusion of
said 5000 acres was filed, and during
the greater portion of the time the notice
of the hearing was being published, there
were outstanding bonds of the district,
and that no written consent of the hold
ers of said bonds was ever given to the
making of the order.
But the fact is, there never We're any
outstanding bonds of the district. Its
bonds, as above stated, had more than
once been offered for sale, and at one
time bid for $4,000 of the bonds had
been made by Tucker and Perley, and
formally accepted by the Directors But
the evidence shows that at the time of the
making and acceptance of this bid there
was an understanding between the bid
ders and the directors that the former
were not to be held to their offer unless
they could succeed in negotiating sale
of the bonds to some outside party, and
as they had failed to do SO, the bonds had
never been issued or paid for. And prior
to the making of the order of exclusion,
Tucker and Perley had, upon their writ
ten request, been released from their
offer by formal resolution of the Board of
Directors.
Such being the case it is clear that there
had not only never been any outstanding
bonds of the district, but that at the date
of the order of exclusion there was not
even subsiSting contract for the issu-
ance of the bonds.
We cannot perceive, therefore, that the
court committed any error in decreeing
the validity of the order of exclusion.
But, even il the decree had been in that
respect erroneous, il is by no means clear
that 1t would have been material. For
the order of exclusion is not one OF the
oiaoiS se1 ou' III Tile PetitlOn OF the re-
Spondent, confirmation of which is
prayed. 1t is alleged, for the first time,
i'll the answer OF appellant, and it's inyal-
idlty charged as matter of defense, and as
ground for refusing confirmation of the
order for the issuance and sale of bonds
1t is therefore material only so far as its
validity or invalidity affects such order
for the issuance and sale of bonds, and
we do not understand how that order
would be any more or less valid whether
the order of exclusion was legal or not.
The Superior Court did not err in hold
ing that the S400, 900 of bonds ordered to be
issued and sold by the order of July 81,
1889, was part of the issue of 100000 of
bondsproposed and voted and ordered is
sued January 3, 1888. The evidence fully
sustains the finding, and there is nothing
really opposed to it except the mere fact
that the resolution of the Board of Direct
ors does not III express terms couple the
issuance and sale of the S400, 900 of bonds
with the previous proceedings authoriz-
fact that when the proposition for the
issuance of $4,000 of bonds was
ratified by vote of the electors, the
plan in contemplation was to bring
water from the Stanislaus River suf-
fficient to irrigate los. 900 acres, and that
the order for the issuance and sale of
S400, 600 OF bonds was made after change
in the district and change of plans con-
templating the bringing of water from
the Tuolumne River sufficient only for
the irrigation of $4,000 acres, does not de-
stroy the relation between the last
order for the sale of bonds and the
original authority to issue them. The
authority to issue bonds is wholly
independent of the source of supply
of water or any plans for obtaining
it. There is nothing in the law to
prevent the directors from changing their
plans in this respect whenever they find