The San Francisco call., 1896-11-17
MAJORITY OPINION.
Reasons for Sustaining the Validity
of the Wright Act.

of the Wright Act.
WASHINGTON, D. c., Nov. 16.-The
majority opinion of the Supreme Court in
the Failbrook irrigation case is volumin-
Gus, comprising twenty-five printed
pages. Justice Peckman, who delivered
the opinion of the court, said:
We are confined in this case to the inquiry
whether the act in question Wright irrigation
iaw), as it has been construed by the State
courts, violates the Federal constitution The
assertion that it does is based upon that part
of the fourteenth amendment of the constittu-
ton which reads as follows: "Nor shall any
State deprive any person OF life, liberty or
property without due process of law, nor deny
10 any person within its Jurisdiction the equal
protection of the laws"
In referring to the amendment above quoted
the appellees herein urge several objections TO
this act. They say:
First-That the use for which water is to be
procured is not in any sense public one be-
cause 1t is limited to landowners who may be
such at the time when water is to be appor-
toned, and the interest of the public is moth
ing more than that indirect and collateral
benefit that 1t derives from every improve
, ment of useful character that is made in the
State.
Second-They assert that under the act in
question the irrigation of lands need not be
limited to those which are in fact unproduc-
tive, but that by its very terms the act in
cludes all lands which are susceptible of one
mode of irrigation from common source and
no matter how fertile or productive they may
already be, and it is denied that the furnis h
ing of a fertilizer for lands of individual pro-
prietors which are already productive, in order
to make them more productive, is in any legal
sense public Improvement.
Third-It is also objected that under the act
the landowner has no right to demand and
no opportunity is given hIm for hearing on
the question whether his land is or can be
benefited by irrigation as proposed; also that
ton whether the statute has been complied
with in preliminary and requisite TO the Tor
nation of district.
Fourth-That the basis of assessment for the
cost OF construction IS not in accordance with
and in proportion to benefit transferred by
improvement, and finally, that lard which
cannot, in fact, be benefited may yet under
the act be placed in one of the irrigation dis
tricts and assessed upon its value to pay the
cost of construction OF works which benefit
others'at his expense. These are the main OBJ
jections urged against the act.
Coming to review of these various objec-
tions, we think the frst-that the water is not
for public use-is not well founded. The
question what constitutes pubic use has been
before the courts of many of the States and
their decisions have not been harmonious. the
inclination of some of these courts being
toward a narrower and more limited defini-
tion of such use than those of others.
There is no specific prohi bition in the Fed
eral constitution which acts upon States to
their taking private property for any but
public use. The fifth amendment, which pro-
vides among other things that such property
snail not be taken for public use without just
compensation, applies only to the Federal
government, as has many times been decided.
In the fourteenth amendment provision re-
gard1ng the taking of private property is
omitted, and prohibition against the state is
confined to its depriving any person of life,
hperty or property without due process of law
IL Is CANNED, however, that citizen is de-
prlVed OF has property without due process of
Iawlf 1t be taken by or under State authority
Tor any other than public use. either under
guise OF taxation or by assumption OF right of
eminent domain. In that way the question
whether private property has been taken for
any other than public use becomes material
in This court, even where the taking is under
the authority of the State instead OF the Fed
eral government. The Supreme Court of Cali
lorna mas held III O mum Der of cases that the
irrigation act is in accordance with the CON
stitution and that it does not deprive land
owners of any property without due process
purposes under the provisions of the act Is
public use. and corporations organized by
virtue OF the act for the purpose of IRRIGATION
are public municipal corporations organized
for the promotion of prosperity and the wei.
fare of the people.
We 10 not assume that these various state
ments- constitutional ana Legislative to-
gether with decisions OF the State court re
conclusive and binding upon this court upon
4 Qctf ion nc m hat ic
law. AS here presented these are questions
which also arise under the Federal eonstitu-
tion, and we must decide Them in accordance
with our views OF constitutional law. 1t is
obvious. however, that what is pubic use
frequently and largely depends upon the facts
and circumstances surrounding the particu-
lar subject matter in regard to which the
character of use is questioned.
To provide for irrigation of lands in States
where there is no color of necessity therefor
within any fair meaning of the term and
simply for the purpose of gratifying the owner
or his desire 10 enter upon cultivation of an
entirely new kind OF crop, not necessary for