The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1896-11-17


the question as to whether there is
any opportunity provided for hearing
upon notice to the land owners inter
ested In the question, whether their
lands will be benefited by the proposed
irrigation. The conclusion is reached
tnat the right to a hearing in regard
to all these facts is given by the act,
and that it has been practically so con
strued by the supreme court of Cali
fornia. The decision says:
The act provides for a hearing of the land
owner, both as to the question whether his
land VIII DC benefited by the proposed irriga-
ton, and when that has been decided in favor
CT the benefit then upon the question of the
valuation and assessment of and upon his
land included in the district. AS TO other
matters. the district can be created without
notice to any one. Our conclusion is that
the act is construed, with reference to the
objections considered under this third head,
is .unasSailable.
Replying to other criticisms of the
act, one OF which was that it takes
property without due process of law
the opinion says:
Although there is a marked distinction be-
tween an assessment for a local Improvement
ana the levy of a general tax, yet the former
is stlll the exercise of the same power as the
latter, both having their source in the SOW
ere1gn power Of taxation. Whatever objec-
IONS may be urged to this kind of an assess
ment, as being in violation of the state con-
st1tutlon yet as the state court has held them
10 pc without force. we follow its judgment
III tnat case, and our attention must be di-
rected 10 the question whether any violation
OF the FEDERAL constitution is shown in such
an assessment Can an az valorem assess
ment en- the land benefited, or, in other
WORDS can such an assessment as is pro-
Vlded Tor 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 assess
ments Tor the local improvements upon which
they can stand, is that they are imposed on
account or the benefits received
no land ought in justice to be assessed for a
greater sum than the benefits received by it.
yet II is plain that the fact of the amount
or Dement'S Is not susceptible of that accu-
rate determination which appertains to a
demonstration in geometry. Some means of
arriving at this amount must be used, and
the same method may be more or less accu-
rate IN different cases, involving different
1acts. Some choice is to be made and
Where the fact OF some benefit accruing to all
the lands has been legally found can it be
that the adoption of an ad valorem method
OF assessing the lands is violation of the
federal constitution? It seems to us clearly
not 1t is one of those matters of detail in
arriving at the proper and fair amount and
proportion OF the tax that is to be levied on
| the land with regard to the benefits 1t has
received, which is open to the discretion Of
the legislature, and with which this court
ought to have nothing to do. The way of ar
irving at the amount may be in some in
stances lnequitable and unequal, but that is
lar from rising to the level of constitutional
problem, and far from case of taking prop
erty without due process of law.
The method of assessment here provided for
may not De the best which could have been
adopted In order to accomplish the most equal
and exact justice which the nature of the
case permits. But nevertheless we are I'M
able to see that 1t runs counter to any pro-
vision OF the federal constitution, and we
must for that reason hold the objection here
considered to be untenable
MILLIONS INVOLVED.
Justice Peckham devoted a consider
able portion of his decision to an ex-
hibition Of it's Importance. Accepting
the estimate that the arid belt Includes
600, 900 acres of land he said:
Of this enormous total, artificial irrigation
has thus far been used only upon about
three and a half million acres, of which
slightly over million acres lies in the state
of California. 1t was stated by counsel that
something over thirty irrigation districts had
been organized in California under the act
In question and that total bonded indebted
ness of more than 900 had been auth
orized by the various districts. Under the
provisions of the act and that more than
So, coo, 900 of the bonds had been sold and the
money used for the acquisition Of property
and water rights and for the construction of
works necessary for the irrigation of the
lands contained in the various districts.
Whether these statements are perfectly ac-
curate or not is a matter of no great import
ance, as it has been assumed by all that
numbers of districts have been formed under
d
incurred and that more will be necessary be.
fore ali the districts will be placed in an
| efficient working condition. All these moneys,
/ II the act hs-Aalfd, must eventually be re-
paid from assessments levied upon the lands
embraced within the respective districts, while
the annually recurring interest Upon these
moneys is also to be paid III the SANE way.
Taking the California as a model is was
also stated and not contradicted, that sew
eral Of the other states which contain por-
| tons of the arid belt (seven eight of them
/ hn6 f,y~ie A11o%
ing under them were generally awaiting the
! result of this litigation. The future pros
! perity of these states, it claimed, de-
! pended upon the validity of this act as fur
| nishing the only means practicable for OBJ
| tanning artificial irrigation, without the aid
| of which millions and millions of acres would
! be condemned to lie idle and worthless, which
| otherwise would furnish enormous quantities
| of agricultural products and increase the
material wealth and prosperity Of that whole
section of country.
Chief Justice Fuller and Associate
Justice Field dissented from the judg-
ment Of the court, but neither filed any
written opinion 1t was explicitly
stated that the opinion did not cover
the inclusion and exclusion" acts
which were enacted as amendments tC
| the main law, and subsequent to it,
| The Tregea case involving practically
the same questions as the Fall Brook
case was dismissed on a technicality
BREWER dnnOu1COu that 10 CASE
| requiring judicial determination had
been presented. Justices Harlan, Gray
and Brown Idissented, holding that a
decision should be made. AS the SUI
preme court Of California, in the
Tregea case upheld the law, it's valid
ity stands confirmed by the action in
| this as we'll as in the Fall Brook case.
The court reversed the verdict of the
circuit court of the Western district OF
Arkansas, in the case Of John Brown
who had been found guilty on three
former trials of the murder of two Off
GERS In the Cherokee nation, and or
dered a new trial Justice Brewer de-
livered a sharp dissenting opinion, say
ing that after a man had been three
times found guilty, the last verdict
ought not to be disturbed.
CALIFORNIA INTERESTED.