68 F. 948 | U.S. Circuit Court for the District of Southern California | 1895
This is a suit in equity, by which it is sought to have enjoined the execution of a deed for certain land of the complainant Maria King Bradley under a sale made by the collector of the defendant irrigation district, to satisfy a delinquent assessment against the property levied under and by virtue of. the provisions of an act of the legislature of the state of California, and its amendments, known as the “Wright Act” (St. 1887, p. 29; St. 1889, pp. 15-18, 212, 213; St. 1891, pp. 53, 142, 145, 147, 244, providing for the organization and existence of irrigation districts, and to obtain a decree adjudging the proceedings under that legislation, in so far as concerns the property of the complainant Maria King Bradley, void and of no effect. The regularity of the proceedings under the act is not questioned, and as the supreme court of the state has sustained its validity in a nunfber of cases hereinafter referred to, and as the statute itself makes the deed executed pursuant to its provisions (except as against actual fraud) conclusive evidence of the regularity of all the proceedings from the assessment to the execution of the deed, and declares that it conveys to the grantee the absolute title to the lands described therein free of all incumbrances,
The act of California under which the proceedings complained of were had provides, in its first section, as amended by the act approved March 20, 1891 (St. 1891, p. 142), that whenever 50 or a majority of the holders of title or evidence of title to lands susceptible of one mode of irrigation, from a common source and by the same system of works, desire to provide for the irrigation of the same, they may' propose the organization of a district under the provisions of the act, and, when so organized, such district shall have the powers conferred or that may thereafter be conferred by law upon such irrigation districts. The equalized county assessment roll next preceding the presentation of the petition for the organization of an irrigation district, under the provisions of the act, it is declared, shall be sufficient evidence of title for the purposes of the act. Its second section, as amended by the act of March 20,1891, is as follows:
“A petition shall first be presented to the board of supervisors of the county in which the lands, or the greatest portion thereof, is situated, signed by the required number of holders of,title, or evidence of title, of such proposed district, evidenced as above provided, which petition shall set forth and particularly describe the proposed boundaries of the district, and shall pray that the same may be organized under the provisions of this act. The petitioners must accompany the petition with a good and sufficient bond, to be approved by the said board of supervisors, in double the amount of the probable cost of organizing such district, conditioned that the bondsmen will pay all the said costs in case said organization shall not be effected. Such petition shall be. presented at a regular meeting of the said board, and shall be published for at least two weeks before the time at which the same is to be presented, in some newspaper printed and published in the county where said petition is presented, together with a notice stating the time of the meeting at which the same will be presented; and if any portion of such proposed district lie within another county, or counties, then said petition and notice shall be published in a newspaper published in each of said counties. When such petition is presented, the said board of supervisors shall hear the same and may adjourn such hearing from time to time, not exceeding four weeks in all; and on the final hearing may make such changes in the proposed boundaries as they may find to be proper, and shall establish and define such boundaries; provided, that said board shall not modify said boundaries so as to except from the operation of this act any territory within the boundaries of the district proposed by said petitioners which is susceptible of irrigation by the same system of works applicable to the other lands in such proposed' district; nor shall any lands which will not, in the judgment of the said board, be benefited by irrigation by said system be included within such district; provided, that any person whose lands are susceptible of irrigation from the'same source may, in the discretion of the board, upon ¿implication of the owner to said board, have such lands included in said district. Said board shall also make an or-*951 dor dividing said district into five divisions, as nearly equal in size as may be practicable, wliicli shall be miinhered first, second, third, fourth, and fifth, and one director, who shall be a freeholder in the division and an elector and resident of the district, shall be elected by each division; provided, that if a majority of the holders of title or evidence of title, evidenced as above provided, petition for the formation of a district, the board of supervisors may, if so requested in the petition, order that there may be either three or live directors, as said board may order, for such district, and ¡hat they may be elected by the district at largo. Said board of supervisors shall then give notice of an election to be held in such proposed district, for the purpose of determining whether or no! the same shall be organized under the provisions of this act. finch notice shall describe the boundaries so established, and shall designate a name for such proposed district, and said notice shall be published for at least three weeks prior to such election in a newspaper published within said county; and if any portion of such proposed district lie within another county or counties, then said notice shall be published in a newspaper published within each of said counties.. Such notice shall require the electors to cast ballots, which shall contain the words ‘Irrigation District --Yes,’ or ‘Irrigation District — No,’ or words equivalent thereto, and also the names of persons to be voted for to fill the various elective offices hercm-«tiler prescribed. No person shall be entitled to vote at any election held under the provisions of this act, unless he shall possess all the qualifications required of electors under the general election laws of this state.”
The third section provides how such election shall be conducted and for the canvass of the vote, and that if, upon such canvass, it appear that at least two-thirds of all the votes cast are “Irrigation District — Yes,” the board of supervisors shall, by an order entered on its minutes, declare such territory duly organized as an irrigation district under the name and style theretofore designated, and shall declare the persons receiving respectively the highest number of votes for the several offices, to be duly elected thereto, and shall cause a certified copy of such order to be immediately tiled for record in the office of the county recorder of each county in which any portion of such land is situated, and shall also immediately forward a copy thereof to the clerk of the hoard of supervisors of each of the counties in which any portion of the district may lie, and, from and after Ihe date of such filing, the organization of such district shall be complete, and the officers thereof shall be entitled to enter immediately upon the duties of their respective offices upon qualifying according to law, and shall hold such offices respectively until their successors are elected and qualified. The third section of the act, as amended by that of March 20, 1891, also provides that “no action shall be commenced or maintained or defense made affecting the validity of the organization, unless the same shall have been coihmenced o’" made within two years from the making- and entering of said order” of the board of supervisors declaring the territory duly organized as an irrigation district. Hection 4 et seq. px*ovides for subsequent elections, at which an assessor, a collector, a treasurer, and a board of directors for the district shall be elected. Section 11, as amended March 20, 1891, provides for the organization of the board of directors after tbeir election; and by section 12, as so amended, it is provided that the board shall, among other things, have the right to enter upon any of the land to make surveys, and may locate the necessary irrigation works and the line for any canal or canals, and the necessary
“Upon tlie day specified in the notice required by the preceding section for the meeting, the hoard of directors, which is hereby constituted a board of equalize Lion for that purpose, shall meet and continue in session from day to day, as long as may be necessary, not to exceed ten days, exclusive of Sundays, to hear and determine such objections to the valuation and assessment as may come before them; and the board may change the valuation as may be just. The secretary of the board shall be present during its sessions and note all changes made in the valuation o-f property, and in the names of the persons whose property is assessed; and within ten days after the close of the session he shall have the total values, as finally equalized by the board, extended into columns and added.”
Section 22, as amended by the act of March 20, 1891 (St. Cal. 1891, p. 149), is as follows:
“The board of directors shall then levy an assessment sufficient to raise the annual interest on the outstanding bonds, and at the expiration of ten years after the issuing of bonds of any issue must increase said assessment to an amount sufficient to raise a sum sufficient to pay the principal of the outstanding bonds as they mature. The secretary of the board must compute and enter in a separate column of the assessment book the respective sums, in dollars and cents, to be paid as an assessment on the property therein enumerated. When collected, the assessment shall be paid into the district treasury, and shall constitute a special fund, to he called the ‘Bond Fund of-Irrigation District.’ In case of the neglect or refusal of the board of directors to ea use such assessment and levy to be made as in tbis act provided, then the assessment of property made by the county assessor and the state board of equalization shall be adopted, and shall he the basis of assessments for the district, and the hoard of supervisors of the county in which the office of the board of directors is situated shall cause an assessment roll for said district*954 to toe prepared, and shall make the levy required toy this act, in the same manner and with like effect as if the same toad toeen made by said board of directors, and all expenses incident thereto shall toe borne by such district. In case of the neglect or refusal of the collector or treasurer of the district to perform the duties imposed toy law, then the tax collector and treasurer of the county in which the office of the board of directors is situated must, respectively, perform such duties, and shall be accountable therefor upon their official bonds as in other cases.”
By section ‘iS, as amended by the act of March 20, 1891 (St. Cal. 1891, p. 149), the assessment upon real property is made a lien against the property assessed, from and after the first Monday in March for any year, and such lien is not removed until the assessments are paid or the property sold for the payment thereof. Subsequent sections of the act provide that in the event the assessments become delinquent the property shall be sold to pay such assessments, and, in the event the property so sold is not redeemed within 12 months from the sale, the collector or his successor in office is required to make to the purchaser or his assignee a deed of the property, which deed, duly acknowledged or proved, is (except as against actual fraud) made conclusive evidence of the regularity of all the proceedings from the assessment by the assessor, inclusive, up to the execution of the deed, which deed, the statute declares, conveys to the grantee the absolute title to the lands described therein, free of all incumbrances, except when the land is owned by the United States or this state, in which case it is prima facie evidence of the right of possession.
The bill alleges, among other things, that, included within the boundaries of the defendant irrigation district as established by the board of supervisors of San Diego county, within which county the district is situated, is a certain 40-acre tract of land owned by the complainant Maria King Bradley as her separate estate, which is of more than $5,000 in value, and which is known as the southwest quarter of the southeast quarter of section 30, township 9 south, range 3 west of the San Bernardino base and meridian; that, also included within the boundaries of the district as so established, is a certain tract of land known and described as lots 1, 2, 3, and 4, and the east half of the northwest quarter of section 7, township 10 south, range 3 west of the San Bernardino meridian, containing 251.84 acres, which the state of California owned on the 5th day of March, 1885, and which, on that day, the said state contracted to sell to one A. J. Foss, receiving from him 20 per cent, of the purchase price, and issuing to him a certificate of purchase therefor, but that the balance of the purchase price has not been paid, and the state is still the owner of the land, subject to the contract of sale; that, also included within the boundaries of the irrigation district in question, as so established, is a certain other tract of land, containing 80 acres, and known and described as the southeast quarter of the northeast quarter and the northeast quarter of the southeast quarter, of section 30, township 9 south, range 3 west of the San Bernardino' meridian, which the United States owned on July 7, 1887, and which on that day one Henry Wilbur was allowed to enter as a homestead in the local land office of the United States, pursuant to the provisions of sections 2289 and 2290 of the Revised Statutes of the United) .States,
A demurrer interposed by the defendants raises the question of the sufficiency of the bill, which, in turn (the proceedings being regular), depends upon the validity of the legislation under which the proceedings were had. Its invalidity is asserted by the complainants, upon the grounds, among others, that it provides for the taking of private property without due process of law, contrary to the provisions of the fourteenth amendment of the constitution of the United States, and that the use for which such property is thereby authorized to be taken is not a public use. Similar objections to the legislation were urged in. some, if not in all, of the cases involving its validity that were determined by the supreme court of California, and were by that court held not well taken. Irrigation Dist. v. Williams, 76 Cal. 360, 18 Pac. 379; Irrigation Dist. v. De Lappe, 79 Cal. 352, 21 Pac. 825; Crall v. Irrigation Dist., 87 Cal. 140, 26 Pac. 797; Board of Directors v. Tregea, 88 Cal. 334, 26 Pac. 237; In re Madera Irr. Dist., 92 Cal. 296, 28 Pac. 272, 675. While the decisions of that court in those, as well as in all other, cases are justly entitled to. great respect, this court is not at liberty to decline to exercise its own independent judgment in determining whether any state legislation violates a provision of the constitution of the United States. Nor can the decision of any state court be conclusively binding upon any federal court in respect to the question whether or not the use on behalf of which the power of the state is sought to be exercised is of such a nature that it can be legally exercised. “Its solution,” said the supreme court, in Olcott v. Supervisors, 16 Wall. 678, “must be sought, not in the decisions of any single state tribunal, but.in general principles common to all courts. The nature of taxation, what uses are public and what are private, and the extent of unrestricted legislative power, are matters which, like questions of commercial law, no state court can conclusively determine for us.” Nor does the legislative declaration found in the act here in question that the use in relation to which the authorized power is to be exercised is a public use, necessarily make it so. Cooley, Const. Lim. (5th Ed.) p. 666, and cases there cited. If it did, the constitutional provision
“It would not tie entirely safe, however, to apply with much liberality the language above quoted, that ‘where the public interest can be in any way promoted by the taking of private property’ the taking can be considered for public use. It is certain that there are very many cases in which the property of some individual owners would be likely to be better employed or occupied to the advancement of the public interest in other hands than in their own, but it does not follow from this circumstance alone that they may rightfully be dispossessed. It may be for the public benefit that all the wild lands of the state be improved and cultivated, all the low lands drained, all the unsightly places beautified, all dilapidated buildings replaced by new, because all these things tend to give an aspect of beauty, thrift, and comfort to the country, and thereby to invite settlement, increase the value of lands, and gratify, the public taste; but the common law has never sanctioned an appropriation of property based upon these considerations alone, and some further element must, therefore, be involved before the appropriation can be regarded as sanctioned by our constitutions. The .reason of the case and the settled practice of free governments must be our guides in determining what is or is not to be regarded a public use; and that only can be considered such where the government is supplying its own needs, or is furnishing the facilities for its citizens in regard to those matters of public necessity, convenience, or welfare which, on account of their peculiar character, and the difficulty — perhaps impossibility — of making provision for them otherwise, it is alike proper, useful, and needful for the government to provide. Every government is expected to make provision for the public ways, and for this purpose it may seize and appropriate lands. * * * The government also provides courthouses for the administration of justice, buildings for its seminaries of instruction, aqueducts to convey pure and wholesome water into large towns. It builds levees to prevent the country being overflowed by the rising streams. It may cause drains to be constructed to relieve swamps and marshes of their stagnant water. And other measures Of general utility, in which the public at large are interested, and which require the appropriation of private property, are also within the power, where they fall within the reasons underlying the cases mentioned.”
Can it be properly held that within the reasons that underlie any of the cases in which private property may be taken for a public use falls the case where it is sought to take such property in order to supply water only to certain individuals within a certain district? I think not. The property to be held by the corporation whose creation is provided for by the legislation in question is not, as said by the supreme court of California in Re Madera Irr. Dist., 92 Cal. 322, 28 Pac. 272, 675, to be held “in trust for the public,” but in trust for the landowners of the district, and for nobody else. Manifestly, they do not constitute the public, whether they number many or few; and for their exclusive use the private proper^ of no man can be taken without his consent “To lay, with one hand,” said the supreme court of the United States, in Association v. Topeka, 20 Wall. 655, “the power of the government on the property of the citizen, and with the other bestow it on other individuals to aid
In Re Pequest River, 41 N. J. Law, 175, Chief Justice Beasley, speaking for the court of errors, in respect to a state statute which he explained as designed to enable one set of landowners to compel another set to co-operate, against their will, to drain that body oí meadow land in which they had separate interests, said:
“The persons thus coerced manifestly suffer an invasion of their ordinary proprietary rights. Why should they thus he forced either to improve their own land or help to improve the land o-f others? ft cannot reasonably be contended that this burden must be borne because the improvement is a public one. This was the view of the effect of this act expressed in the case of In re Drainage of Lands, 35 N. J. Law, 497; but, as such view was founded on the notion that a legislative requisition that private lands should be drained at the expense of their owners was an exercise of power similar in land to a proceeding to condemn private property for the uses of a public road, I am compelled to think that decision rests upon a basis that is manifestly indefensible. I can see no rational ground for the assumption that the schemes to be executed by this act are, in the main, matters which, in any .iust. sense, can be said to be of public concern. It is true that, under certain conditions, the reclamation of very extensive tracts of land which are subject to overflows by the tides, or which are otherwise submerged, may assume the importance of a public undertaking. Such was the case presented in the litigation between Tidewater Co. v. Coster, 18 N. J. Eq. 519. Such would be the case if the condition of a trait of land was such as to he detrimental to the public health, 15ut the law is not confined to such eases as these, for its scope embraces every case of a tract of meadows, no matter how small its area, which is distributed among as many as live separate owners. It is extremely plain, therefore, that the legislative purpose embodied in this act cannot be vindicated on the plea, that it directly conduces 1o the general welfare of the community. It does not seem open to question that it is tiie owners alone who are interested in the compulsory improvement of these lands. Tine, in such eases there is a resulting gain to the public, but this is nothing more than the inevitable incident of individual prosperity. The effect of drainage is to cause a more plentiful product than the land would yield in its unreclaimed condition. In this result the owner is directly interested, the community indirectly only, and it is a perversion of legal terms to call the enterprise, on account of such collateral advantage, a public one. So false is such a contention that, if yielded to, it would legalize the compulsory establishment of manufactories, or the converting of forests into arable land, or the execution of any private enterprise whatever, as in all such matters the state has a remote tnierest. To call the legislative flat that a half-dozen persons shall drain their land at their joint expense and for their*960 private advantage an exercise of the taxing power of the state is, in my judgment, simply a misnomer. Nor is such an exercise of power any more justifiable, if it is to be derived merely from the nature of the legislative authority, than would be an enactment commanding A. and B. to farm their several lands at their joint expense; and yet no one will pretend that this can be done. Under a constitution that guaranties the inviolability of private property, and limits the lawmaking power to the function of legislation, it appears to me entirely inadmissible to claim that it is a legitimate use of the prerogative to legislate, to enact a law such as the present one, requiring a few landowners to improve their lands for their own profit and at their own expense. I regard it as a clear infringement of the constitution to take, by force of a statute, the money of a person from him, even though such money should, 'against his will, be used for his private benefit, in the improvement of his land. Such an act has nothing in common, with respect to legal principles, with the condemnation of property for the uses of the community, and to the charging, to a limited extent, of the costs of such improvement upon the landowners specially benefited. I cannot assent to the hypothesis that this law can rest on the state’s right to tax, or on its eminent domain.”
Like the case last cited, the scope of the legislation under consideration is not limited to cases where the territory designed to he supplied with water for, irrigation is so extensive as to assume the importance- of a public undertaking, and where, when provided, the water is available to every person within the district upon the same terms and conditions, but it embraces every case where a tract of country, be it large or small, is susceptible of one mode of irrigation from a common source and by the same system of works, and a maj'ority of the holders of title or evidence of title thereto petition for the organization of an irrigation district, and two-thirds of the qualified voters within the boundaries of the district as established by the board of supervisors vote in favor of it. A half-dozen persons, as well as as manj' hundred, may constitute a majority of the holders of title or evidence of title to the lands falling within the designation of the statute, and the water to be secured by the means provided for, so far from being available to every person within the district, upon the same terms and conditions, is limited to the use of specific individuals, namely, the landowners of the district.
Another fatal objection to the maintenance of the legislation here in question, under the right of eminent domain, is that, if it be regarded as undertaken by the public primarily as a matter of public concern, the assessment upon the landowners must be limited to benefits imparted, which is not the case with this statute. Wurts v. Hoagland, 114 U. S. 613, 5 Sup. Ct. 1086; Tide-Water Co. v. Coster, 18 N. J. Eq. 527. It does not seem to me to admit of doubt that, if the act in question can be maintained at all, it must be under the power of assessment for local improvements, or, as expressed by the supreme court in Wurts v. Hoagland, supra: "The power of the legislature to establish regulations by which adjoining lands, held by various owners in severalty, and in the improvement of which all have a common interest, but which, by reason of the peculiar natural condition of the whole tract, cannot be improved or enjoyed by any of them without the concurrence of all, may be reclaimed and made useful to all at their joint expense.” But no more than any other can that power be exercised without “due process of law.” Hot only does the legislation in question provide
“Does not affect the property of anyone within the district, and that he is not, by virtue thereof, deprived of any properly. Such result does not arise until after the delinquency on his part in the payment of an assessment, that may be levied upon his property, and before that time he lias opportunity to be heard as to the correctness of the valuation which is placed upon his property, and made the basis of his assessment. He does not, it is true, have any opportunity to be heard otherwise than by his vote in determining the amount of bonds to be issued, or the rate of assessment with which they are to be paid; but in this particular he is in the same condition as is the inhabitant of any municipal organiza (ion which incurs a bonded indebtedness or levies a tax for its payment. liis property is not taken from him without due process of law, if he is allowed a hearing at any time before the lien of the assessment thereon becomes final.”
A bearing as to what? Tbe only bearing provided for by tbe statute is as to tbe correctness of tbe valuation put by tbe assessor upon tbe property assessed. Nor can I at all agree that tbe proceeding for the organization of the district “does not affect tbe property oi any one within the district.” The petition for the organization of tbe district vras tbe foundation of the whole proceeding, just as tbe petition for the opening of Montgomery avenue, in San Francisco, lay at tbe foundation of tbe proceedings involved in Mulligan v. Smith, 59 Cal. 206, (be ruling in which case was approved by the supreme court of the United States in Zeigler v. Hopkins, 117 U. S. 687, 688, 6 Sup. Ct. 919. Without the required petition, no step could be taken looking to tbe organization of tbe district here in question. It was jurisdictional in the strictest sense. Two weeks’ notice of tbe time of presentation of tbe petition is required to be given by publication. When presented, the statute declares the board of supervisors—
“Shall hear the same, and may adjourn such hearing from time to time, not exceeding four weeks in all, and, on the final hearing, may make such changes in the proposed honndaries as they may find to be proper, and shall establish and define such boundaries; provided, that said hoard shall not modify said honndaries so as to except from the operation of this act any territory within the boundaries of the district proposed by said ^petitioners which is susceptible of irrigation by the same system of works applicable to other*962 lands in said proposed district, nor sliall any of the lands which will not, in the judgment of said board, be benefited by irrigation by said system, be included within such district; provided, that any person whose lands are susceptible of irrigation from the same source may, in the discretion of the board, upon application in writing to said board, have such lands included in such district.” Laws 1887, p. 30.
Notwithstanding the fact that the petition is by the statute made the basis of the proceeding which is to culminate in divesting the title of the owner of land against his consent, there is here not only no opportunity afforded such owner to test the sufficiency of the petition, but the power of the board of supervisors is in terms limited to making such changes in the boundaries proposed by the petitioners as it may deem proper, subject to the condition that it shall not except from the operation of the act any territory within the boundaries proposed by the petitioners which is susceptible of irrigation by the same system of works applicable to the other lands in said proposed district, nor include within the boundaries, which it is required to establish and define within four weeks after the presentation of the petitioner, any lands, which, in its judgment, will not be benefited by irrigation by the same system of works. Every one must admit that in the matter in question the board of supervisors has only such power as is expressly or by necessary implication conferred upon it by the statute itself. Not only is it not thereby given the power to inquire into the sufficiency of the petition, but the express statutory requirements preclude any such inquiry by it, at the instance of any owner of land adversely affected, or at all. Yet the petition may not have been signed by the required number of holders of title or evidence of title to lands within the district, and, if not, there was no basis upon which the proceedings could rest.. Whatever construction might otherwise be placed upon the word “hear,” used in the statute, it cannot be held to include the power to determine the entire merits of the petition, in view of the affirmative requirement contained in the same sentence that on its final hearing the board “shall establish and define such boundaries.” The board is of necessity required to determine for itself whether the petition upon its face is sufficient to put its powers in motion; yet its determination in that respect is not conclusive upon any one. As said by Judge Bronson, in speaking of a similar petition, in Sharp v. Speir, 4 Hill, 88;
“They could not make the occasion by resolving that it existed. Tiiey had power to proceed if a majority petitioned, but without such a petition they had no authority whatever. They could not create the power by resolving that they had it.”
The statute does not require or authorize the board of supervisors to hear any contest in respect to the truth of the allegations of the petition, further than is implied by the provision that it may make such changes in the proposed boundaries as it may deem proper. Had.it been impowered to entertain a contest, for example, by a landowner in respect to the question whether those signing the petition were, in truth, the holders of title or the evidence of title to lands susceptible of one mode of irrigation, from a commop source and by the same system of works, and it should find in favor of the
“Respect must be had to the cause and object of the taking, whether under the taxing power, the power of eminent domain, or the power of assessment for local improvements, or some of these; and. if found to be suitable or admissible in the special case, it will be adjudged to be ‘due process of law’; but, if found to be arbitrary, oppressive, and unjust, it may be declared to be not ‘due process of law.’ ”
Apart from the objections already considered, which go to the validity of the statute itself, it would be difficult, I think, if not impossible, to sustain its applicability to a case where there is no stream or body of water in existence from which the district can obtain water with which to irrigate the lands within the district, and where, according to the averments of the bill, the proposition is to take private property to build works to catch and distribute, for the purposes of irrigation, rain and flood water, which may or may not come in sufficient volume. It would seem quite unreasonable to hold that private property can be taken for any such experimental purpose, — ■ especially where, as here, according to the allegations of the bill, one piece of land within the district designed to be thus irrigated belongs to the United States and another to the state of California, both of
