The San Francisco call., 1896-11-17

The second objection urged by appellees
nereln is that the operations of this act need
not De ana are not limited TO arid, unproduc-
i've lands, but include within its possibilities
al ianos, no matter how fertile or productive,
SO long as they are susceptible in their natural
statc OF one mode of irrigation from COM
mon source, etc. The words 'in their natural
sta'e' are interpoiated in the text of the stat
u.e oy counsel for appeilees on the assump-
.tion mat the Supreme Court of California has
thus construed the act in the Tregea case
700 CAL, 334). The objections had been MADE
IN that case that it was unlawful to include
tne CITY OF Modesto IN an irrigation district.
Ine court, per Chief Justice Beatty, said the
Legislature ubtedly intended that cities
ana towns should in proper cases be included
In irrigation districts. and that the act as thus
construed did not violate the State constitu-
tion.
What is the limit OF power of the Legisla.
lature In regard to providing for irrigation? ?
Is IL bounded by the absolutely worthless con-
ultlon oil land without artificial irrigation? Is
1t connned 10 land which cannot be made to
yleiu the smallest particle of return for labor
bestowed upon it? If not absolutely worthless
ana incapable OF growing any valuable thing
w,tnout water, however valuable may the
land be and to what extent may it be
put before it reaches a point at which the
legislature has no power TO provide for its
improvement by that means: The general
power OF the Legislature over the subject of
providing for irrigation of certain kinds of
lands must be admitted and assumed. The fur
ther questions of limitation. as above pro-
pounded, are somewhat legislative in their
nature, although subject to the scrutiny and
judgment of courts to the extent that it mu t
appear that the, use intended is public use as
mat expression has been defined relatively to
this kind OF legislation.
Inc Legislature by this act has not itself
named any irrigation district, and of course
not decided as to the nature and quality of
any specific lands which have been included
In any such dis trict 1t has given a general
statement as to what conditions must exist in
oroer TO permit inclusion OF any land within
the district. The land which can properly be
so included is as we think sufficiently limited
In lis character by the provisions OF the act
IL must be susceptible of one mode of frriga-
tlon from common source by the same sys-
tenn of works
we come now to the question of the true
construction of the act. Does it provide for q
nearing as to whether the petitioners are of
the class mentioned and described in the act
ana as to their compliance with the con-
dltions of the act in regard to the proceedings
prior to the presentation of the petition for
the formation of a district? Is there any
opportunity provided for hearing upon
notice to landowners interested in the ques-
ton whether their lands will be benefi ted By
proposed irrigation? We think 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
in some of the cases above cited from reports
OF that court and in cases cited in briefs of
counsel. We should come to the same con-
clusion from perusal of the act.
IL is not an accurate construction of the
statute to say that no opportunity is afforded
to the landowner to test the suffieiency of the
petition in regard to the signers thereof and
in regard to other conditions named in the
act nor is it correct to say that the power of a
Board of Supervisors IS, in terms, limited to
making such changes in boundaries proposed
by petitioners as il may deem proper, subject
TO the conditions named In the act
In the act under consideration the establish
ment of its boundaries and purposes, for which
q district is created, if it be finally organized
by reason OF the approving vote of the people,
will almost necessarily be followed by and re-
suit in an assessment upon all lands included
within the boundaries of district. The Legis-
lature thus in substance provides for the crea-
ton not alone of public corporation, but of
taxing a district whose boundaries are fixed,
not by the Legislature. but, after hearing, by
the BOARD OF Supervisors, subject to the final
approval by the people in an election called
for the purpose. 1t has been held in this court
that the Legislature has power 10 fix such a
district for itself without any hearing as to
benefit for the purpose of assessing upon lands
within the district.
The Legislature when ii fixes a district itself
is supposed 10 have made proper inquiry
and TO have finally and conclusivly determined
the amount of benefits to the land included
IN the district, and a citizen has no constitu-
tional right to any other or further hearing
upon that question. The right which he
thereafter has is 10 a hearing upon the ques.
tion OF what is termed an apportionment of
the tax i. e.: the amount of the tax which he
is to pay, but when as, in this case; de-
termination of the question of what lands
shall be included in the district is only to be
decided after decision as to what lands de-
scribed in the petition Will be. benefited, and
the decision of that question is submitted TO
some tribunal, the parties whose lands are thus
included in the petition are entitled TO
hearing upon the question of benefits, and to
of the board be against their being
benefited. Unless the Legislature decide the
question of benefits itself the landowner has
a right TO be heard upon that question before
his property can be taken.
After careful scrutiny of the objections to
the Wright act we are compelled to the con-
clusion that none of such objections is well
taken. The judgment appealed from is there
for reversed, and the cause renamed TO the
Circuit Court of the United States for the
Southern District of California for further pro-
ceedingS not Inconsistent with this opinion.