The herald., 1895-10-03


confine their deliberations to consider
alton of the amount-about $90-which
is not barred by time.
At 5 O'Clock the jury retired and at
1880 returned into court with verdict
of guilty as charged.
Irrigation District Troubles
Judge Van DyKe yesterday handed
down decision in the case of ]. H. Car
ter vs. L. r. Tilghman, as follows:
This is an application on the part OF
the plaintiff for writ of mandate, di-
rected by the defendant as treasurer of
the Big Rock Creek irrigation district,
requiring him to pay warrants and de-
msnds drawn on the treasurer of such
district as set out in the petition, some
of which said warrants are drawn in ia
vor of the petitioners and some in favor
of other parties and assigned to HIM.
The answer of the defendant sets forth
thai on the 10th of ] uly, 1894. the direct
ors of the Big Rock creek irrigation dis
triot passed a resolution ordering spe-
cial election to be held on the 9Th of Au-
gust, 1894, subm lifting ito the qualified
electors of the district the question
whether a special assessment should be
levied for the purpose OF raising the sum
of $4,000 to be used for the payment OF
salaries of officers and agents of the dis
trct, repairs maintenance and protec-
tion OF the bitches aud other property
and rights of the district. That the said
election was duly held and two-thirds of
the votes were cast in favor of said as
sessment, and that in pursuance OF said
election on the Dist OF August, 1894, the
board of directors passed resolution
levying an assessment for the purpose
of raising $4,000 to be useo in the pay
ment of salaries OF officers and agents OF
the,district, repairs, maintenance and
protection of the bitches and other prop
erty and!rights OF the district. The an
swer further sets forth that on Der
Is, 1894, the board of directors passed
resolution In the following words and
electors of this district at special cleo
ton held on August 4. 1894. did vote a
special assessment of $4,000 it IS hereby
ordered that one-fourth of said,$4000 shall
be paid into the litigation fund to be
used in the payment OF warrants drawn
on that fund by this board, and that one
fourth of the said special assessment of
$4,000 shall be paid into the expense fund,
as it is collected. to be used in the pay
ment of warrants drawn on the fund of
this BOARD. There is hereby created an
engineers fund, and one-half of the spe-
cial assessment of $4,000 shall he paid IN
to the said engineers fund, as it is col
lected, to be used for tile payment of
warrants drawn on that fund by this
board. The answer further states that
$Z,l4I.Oo Is Ln0 TOTAL amount COlleCItQ
under said special assessment that has
come into the hands of the defendant as
such treasurer, and that between the
18th of May. 1895, and the 9Th OF August,
1895, he has paid out on warrants Or
dered by the board of directors amounts
aggregating sufficient to reduce the
money now in his hands as treasurer to
the sum OF 81, 032. 20, OF which amount 80
CENTS belongs to the expense fund.
$40S. SO to the litigation fun and 1921. Sc
to the engineers fund.- $l.44 to the bond
fund and nothing to the construction
fund. That the warrants in question are
drawn on the expense and construction
funds in which there is no money.
By the provisions of the act for the
formation of irrigation districts, section
Z, the cost all expense of purchasing an
acquiring property ana constructing
works and Improvements provided for
shall be wholly paid ous of the construc
ton fund. b. the same section it is
provided that the care, operation, man
agement repair and Improvements of the
in use, including the salaries OF officers
and employees. may be paid either by
fixed rates of tolls and charges or by spe-
cial assessment By section l of the
same act the manner of levying special
assessments and making the collections
Hereunder is poin ted out. 1t is provid
ed that the beard of directors may call
special election and submit to the quail
fed electors the question of raising mon
ey for the purposes in the act specified,
giving previous notice of such election.
"Tne notice must specify the amount of
money to be raised and the purpose for
which it is intended to be used. The as
sessments so levied shall be com puted
and ente red on the assessment roll by the
secretary of the board and collected at
the same time and in the same manner
as Other assessments provided for herein,
and when collected shall be paid into the
district treasury for the purposes speci-
fed in the notice of such special cleo
tion.'
In this case the election and assess
ment, as stated in the answer, were for
1.-THE purpose of raising $4,000 to be used
for the payments of salaries of officers
and agents of the district for repairs
maintenance and protection of the bitches
and other property rights of the district. )"
Under the law it is very clear the direct
ors had no authority to divert the funds
from the purposes for which the assess
ment was voted by the electors of the dis
trict. The money was to go into the treas
ury to be pail out on warrants properly
drawn thereon for the purposes specified;
that is, to pay salaries of officers and
agents and to pay for repairs, mainten-
ance and protection of the property rights
of the district. The directors clearly
could not divide this money thus paid
into the treasury and place one-quarter.
or any amount. in litigation fund, or
one-half. or any amount, in an engn-
GERS fund. II this could be done the
whole sum raised by the vote of the dis
trict for the purposes specified in the no.
tice might be entirely diverted to other
and different objects after the money is
raised.
1t is objected also in the answer that
the first ten of the warrants set out IN
the plaintiffs affidavit we're Issued for
past Indebtedness, and are not entitled
20 payment out of the moneys collected
under the said assessment. Neither in
she call nor in the notice of the election
does it appear that the fund to be raised
was for payment of future salaries of
officers and agents or for future repairs.
and there is no apparent reason. legal or
equitable. for making such distinction.
By analogy to the rule observed in state
and county warrant, they should rather
be paid in the order of presentation in
stead OF giving a preference to the latter.
Two OF the warrants are drawn on the
construction fund and for construction
purposes, and they are not sntitled to