The herald., 1896-11-17

with very great respect; and we regard
the decisions as embodying the deliber-
ate judgment and matured thought Of
the courts Of that state on this subject
Viewing the matterfor ourselves and in
the light Of these considerations we have
very little difficulty in coming to the
same conclusion as reached by the
courts Of California.
The use must be- regarded as pub
lie use, or else 1t would seem to follow
that no general scheme of irrigation can
be formed or carried into effect"
Continuing on this line. Justice Peck
ham said: while the consideration that
the work Of irrigation must be aban-
Aoned IL the use Of the water may not
be held 10 be or constitute public use,
II not to be regarded as conclusive in
favor Of such use, yet that fact is in
this case a most important considera-
ton, Millions Of acres of land otherwise
cultiyable must be left in their present
arid and worthless condition and an ef-
fectual obstacle will therefore remain
In the way of the advance of a large
proportion of the state in material
wealth and prosperity. To irrigate and
thus to bring into possible cultivation
these large masses of otherwise worth
less lands would seem to be public pur-
chase and a matter of public interest
not confined to the land owners or even
to any one section of the state. The fact
that the use of the water Is limited 10
the land owner is therefore not fatal
objection to this legislation. 1t is not es-
sential that the entire community OF
even any considerable portion thereof
should directly enjoy or participate IN
an improvement in order to constitute
q public use. All land owners in the as
trict have the right to proportonate
share of the water, and 10 one lana
owner is favored above his fellow in his
right to the use of the water. 1t is not
necessary in order that the use should
be public that every resident in the dis
/. triet should have the right to the use
of the water"
Referring to the objections under the
act that the irrigation of lands need not
be limited to those which are in fact un-
productive, the opinion says;
1.-The legislature BY this act has not
itself named any irrigation district ana
of course has not decided as to the ma
ture and quality of any specif1c lands
which have been included in any such
district. 1t has given general state
ment as to what condition must exist
in order to permit the inclusion of any
land within district. The land which
can properly be 50 included is, as we
think, sufficiently limited in it's charac-
ter by the provisions of the act IL must
be susceptible OF one mode of irrigation
from common source ard by the same
svstem of works and it must be of such
a character that 1t will be benefited by
irrigation by the new system to be
adopted This, as we think, means the
amount of benefit must be substantial
and not limited to the creation OF an op-
nortunity to thereafter use the land for
a new kind of crop, while not substan-
tally benefitting it for the cultivation
of the old kind which it had produced
in reasonable quantities and with or
binary certainty and success without
the aid of artificial irrigation. The
question whether any particular land
would thus be benefited is necessarily
one of fact
On the subject of the true construc-
ton of the act, the court considered the
question as to whether there is any op-
portunity provided for a hearing upon
notice to the land owners interested in
the question whether their land will be
benefited by the proposed Irrigation.
reaching the conclusion that the right
to a hearing in regard to all these facts
is given by the act and that it has been
practically so construed by the supreme
court of California. 1.-THE act provides
for hearing of the land owner both as
to the question whether this land will
be benefited by the proposed circula-
tion and when that has been decided in
favor of the benefit. upon the question
of valuation and assessment upon his
land included in the district. AS to
other matters, the district can be crea
ted without notice to anybody. Our con-
clusion is that the act as construed
with reference to the objections consid-
cred under the third head, is unassaila-
ble.'
Referring to other criticisms Of the act
one of which was that it takes property
without due process of law, the opinion
tinction between an assessment for a To-
cal improvement and the levy Of a gen.
eral tax, yet the former is still the exer-
else of the same power as the latter.
both having their source in the sover-
eign power of taxation. Whatever OBJ
jections may be urged to this kind of ar
assessment as being in violation of the
state constitution, yet the state court
has held them tc De without force, we
follow the judgment in that case and our
attention must be directed to the ques-
ton whether any violation of the Fed
eral constitution is shown in such an as
sesment. Can an ad valorem assessment
ON the land benefited, or, in other words,
can such an assessment as is provided
in sections IS, 20, q and % of the act be
legally levied in such a case as this
Assume that the only theory of these as :
sesments for local improvements upon
which they can stand is that they are
imposed on account of the benefits re-
ceived and that no land ought in justice
be assessed for a greater sum than the
benefits received by it, yet it is plain
that the amount of the benefits is not
susceptible of that accurate determina-
ton which appertains to a demonstra-
tion in geometry.
Some means of arriving at this amount
must be used and the sa me- mathod m a "