The record-union., 1892-04-12
IRRIGATION DISTRICT ASSESSMENTS.
A Stanislaus Case Reversed by the
Supreme Court.
Directors of Irrigation Districts Before
Levying Assessments Must Con-
suit Property-Owners.

Inc supreme court yesterday nled In
Deputy Clerk Govan's Office its decision
in the case of Tregea (appellant) VS..
! Owens, Collector, and others. 1t appears
| that the Directors of the Modesto Irriga-
| ton District levied an assessment, Sep
/ tember 10, 1855, of $50 cents upon each
! 500 in valuation of the real property
within said district, ''for the purpose of
defraying the expenses of the organiza-
ton of said district, and payment of the
salaries of officers and employees of said
district for the year 1885"
Under this assessment the defendant, as
Collector of the district, proceeded to COL
lect the assessment, and for that purpose
was about to sell certain property belong
ing to Tregea, when, for the purpose of
preventing the property from being sold,
Tregea paid to the Collector under pro
test SOB is, and thereafter brought action
to recover the amount so paid upon the
ground that the assessment was illegal,
and that the money was paid by him un-
| der duress.
The Act (Stat. 1887, p. 90 under which
these proceedings were taken, provides
| for raising money from tolls and charges,
and also by assessments, upon the prop
! erty within the district. "As the tolls
and charges are to be collected from the
use of the canal" says the court cit is
obvious that until the canal has been con-
| structed The only mode by which the Di-
| rectorS can raise money, for any purpose,
except from the sale of bonds, is by means
! of assessment. This assessment. al
! though referahle to the power OF taxation,
! is distinct from tax, and is not subject
to the constitutional provisions respecting
taxation. but may be levied upon all real
! property within the district without de-
| Quoting from the value of such property
the amount OF any mortgages existing
| thereon.
I'm the matter of the MADEIRA Irriga-
| ton District (28 Pac. r. 272) it is seen
that Boards Of Supervisors are not au-
thorized to levy tax upon any district,
for district purposes, without previous
| approval thereof by the voters OF the dis
/ trict, at an election held for that purpose
1.-The Wright Act has been framed upon
the theory that the electors OF an irriga-
ton district shall themselves determine
the amount which they will pay for the
expenses of the local improvement,
whether by the issuance of bonds for the
payment of which an annual assessment
/ Is to be levied sections 1j-l7) or by q
contribution Of money to be paid by
! single assessment (section Al and this
theory is further shown by the provis-
! ions Of section 81 which limit the power
of the directors in assessing to such as are
possessed by Boards of Supervisors in
levying tax upon district within their
| county"
After defining the provisions of section
! II, which is held to supplement the pro-
visions OF section 81, the court says:
In the complaint herein the plaintiff
alleged that said levy Of assessment was
made by said Board of Directors without
calling special election, or submitting to
| the qualified electors of the district the
hat .aY.C u
ment should be levied for the purpose of
raising said sum of money, or any other
/ sum; that no election was held in said
district authorizing said directors to
make said levy of assessment.
Upon the motion OF the defendant the
! court below struck this averment from
! the complaint. and upon the plaintiffs
Offering to prove the facts therein alleged,
excluded the evidence. Inasmuch as it
was essential to the validity of the assess
ment that an election therefor should
have been held, it was proper for the
| plaintiff, in order to establish the lille
gality of the assessment, to allege and
show that it was made without an cleo
| ton, and the action Of the court in strik-
ing the averment from the complaint was
error, and for this error the Judgment
and order denying new trial are re-
versed."
The decision is by Justice Harrison,
and is concurred in by Justices DeHaven,
Mcfarland, Garoutte, Paterson and
Sharpstein.
THE vIsCHER CASE. AFFIRMED.
| In the case of James G. Pennie ct al.
| plaintiffs and respondents VS.. Sebastian
Vischer ct al, the Court says:
ID. Nj. Vance, one of the defendants in
the above action, appealed from an order
| denying his motion to set aside the de-
fault entered against him, and from the
Judgment entered in said action
Appellant demurred to the plaintiffs
complaint and moved for a change of
and the ruling is complained of as being
| erroneous.
The Supreme Court says: "The
grounds upon which the motion was
based were insufficient, etc." and the
Judgment and order were affirmed