The plaintiff petitioned the superior court of the county of Madera for a writ of review for the purpose of inquiring into the validity of an order of the defendant board of supervisors calling an election for the establishment of an irrigation district, to be known as the Madera Irrigation District. A demurrer for want of sufficient facts and alleging lack of jurisdiction was interposed and sustained by the trial court and judgment was rendered against the plaintiff in pursuance of such ruling on demurrer. The plaintiff appeals from the judgment.
We will proceed to a determination of the merits of the appeal.
The petition for the writ of review herein, alleges that the plaintiff’s lands lie within the proposed district. The sufficiency of the petition to the board of supervisors and of the notice of the hearing thereof are not questioned except *259 by the allegations that no evidence was introduced before the board of supervisors in support of the allegations of the petition or to establish the status of the petitioner. The petition alleges some twenty-five particulars wherein it is claimed that evidence was essential to give the board jurisdiction to act in fixing the boundaries of the proposed district and ordering an election and alleges that no evidence whatever was offered upon these matters. It is further alleged that on November 3d, the date of the hearing upon the petition for the formation of the irrigation district, the plaintiff filed written objection to the inclusion of its lands within the district upon the ground that said lands would not be benefited by being included within said district and that said lands were not susceptible of irrigation from the same source or by the same system of works as the remainder of the lands within the boundaries of the said proposed irrigation district.
Without mentioning in detail the various matters upon which it is alleged no evidence was introduced before the board of supervisors, it may be said generally that said objection relates to the sufficiency of the signatures attached to the petition, to the publication of the notice of hearing on said petition, and that no evidence was introduced in support of or opposed to the objections of the petitioner that its lands would not be benefited by the irrigation system described in the petition or by the formation of said district.
In
Imperial Water Co.
v.
Supervisors,
The legislature, at an extra session of 1911, amended section 4 of the act (Ex. Sess. 1911, p. 139, e. 36) to read as follows:
*260 “Section 4. A finding of the hoard of supervisors in favor of the genuineness and sufficiency of the petition and notice shall be final and conclusive against all persons except the State of California upon suit commenced by the attorney-general. Any such suit must be commenced within one year after the order of the board of supervisors declaring such district organized as herein provided, and not otherwise. ’ ’
In addition to section 4 the California Irrigation Act, as amended in 1915 (Stats. 1915, p. 1370), contains certain curative provisions which will be hereinafter more fully discussed. The section is as follows:
“Sec. 72. Contests. No contest of anything or matter herein- provided shall be made other than within the time and manner herein specified, and in any such action all findings of fact or conclusions of said board of directors, or of the board of supervisors upon all matters shall be conclusive, unless such action was instituted within six months after such finding or conclusion was made.”
Furthermore, the legislature on May 12, 1921 (Stats. 1921, p. 76), passed an act validating the organization of the Madera Irrigation District as formed and organized by the board of supervisors of said county, which act is in the following words and figures, to wit:
“Section 1. Madera irrigation district, in the county of Madera, State of California, as formed and organized by the board of supervisors of said county, and as now existing, or as the boundaries thereof may hereafter be modified *261 according to law, is hereby recognized and declared a valid irrigation district, with all the powers and authority vested in irrigation districts, and all proceedings on formation and organization of said district are hereby approved and in all respects declared valid.”
Before considering the effect of sections 4 and -72, supra, of the California Irrigation Act and of the validating act, supra, we will first examine the question as to the power of the legislature over the subject matter in the light of the fourteenth amendment to the constitution of the United States and similar provisions in our own constitution prohibiting the taldng of property without due process of law.
The California Irrigation District Act provides for a hearing before the board of directors sitting as a board of equalization upon the proper valuation of the property within.the district (sec. 38), and upon such valuation so determined an ad■ valorem tax is imposed upon all the property within the district for the proposed improvements (see. 39). The California Irrigation District Act provides (see. 69) for proceedings by the property owner to contest the validity of the. assessment, but it is evidently not intended that this contest should include an inquiry into the validity of the proceedings for the organization of the district, because by section 4 its validity could only be attacked by a quo warranto proceeding brought by the attorney-general within one year after the organization of the district, and, furthermore, section 72 provides that findings of fact and conclusions of the board of directors and of the board of supervisors are conclusive unless the action to contest the validity thereof is instituted within six months after the findings or conclusions are made, and assessments are usually made more than six months after the district is formed.
In this connection attention should he given to the contention of the respondent with reference to the case of
Fallbrook Irr. Dist.
v.
Bradley, supra.
It is contended that this decision by the United States supreme court had not been followed by this court and that it has been expressly repudiated by this court. It must be confessed that this contention finds support in the opinion in the case of
Henshaw
v.
Foster,
“Respondents insist that we are here dealing with a matter directly affecting private property. They call attention to the fact that in Fallbrook Irr. Dist. v. Bradley,164 U. S. 112 [41 L. Ed. 369 , 17 Sup. Ct. Rep. 56], the supreme court of the United States declared the necessity for a hearing ‘at some time to those interested upon the question of fact whether or not the land of any owner which was intended to be included would be benefited by the irrigation proposed,’ and that the Wright Act was upheld upon the express declaration of the court that an appropriate hearing before the board of supervisors is in that act provided. Notwithstanding any expressions in the Fallbrook Irrigation case, we are committed to the reasoning of the Madera District case (92 Cal. 296 [27 Am. St. Rep. 106 , 14 L. R. A. 755,28 Pac. 272 ]), which was followed in People v. Ontario,148 Cal. 625 [84 Pac. 205 ], long after the decision in the other case had been made. In the opinion in the Madera District ease the irrigation district was treated as a public corporation to be invested with certain political duties to be exercised in behalf of the state. That a water district such as the one sought to be established in San Diego County is also such a corporation may not be doubted under the authority of that decision. The statute in its scope is even broader than the Wright Irrigation Act and is quite as complex in its details as is that law. To classify a district created under its sanction with a sewer district such as that described in the Brookes case would be to disregard the distinction pointed out in Wilcox v. Engebretsen,160 Cal. 288 [116 Pac. 750 ].”
The author of the opinion then quotes extensively from
In re Madera Irr. Dist.,
“The legislature, not having itself described the district, has not decided that any particular land would or could possibly be benefited as described, and therefore, it would be necessary to give a hearing at some time to those interested upon the question of fact whether or not the land of any owner which was intended to be included would be benefited by the irrigation proposed. . . .
“Upon the question of fact as to benefits, decided by the board, it is held in the Tregea case that its decision is conclusive.88 Cal. 334 [26 Pac. 237 ], supra. Whether a review is or is not given upon any of these questions of fact (if the tribunal created by the State had power to decide them, and if an opportunity for a hearing were given by the act), is a mere question of legislative discretion. It is not constitutionally necessary in such cases to give a rehearing or an appeal. Missouri v. Lewis,101 U. S. 22 [25 *265 L. Ed. 989] ; Pearson v. Yewdall,95 U. S. 294 [24 L. Ed. 436 ]. . . . ” (Italics ours.)
The supreme court of the United States upheld the Wright Act [Stats. 1887, p. 29] in the Fallbroolt case and the proceedings thereunder solely upon the ground that such an opportunity to be heard as was required by the federal constitution was provided for and was in fact given under the statute in question. In dealing with that question the supreme court in the Fallbrook case said:
“Third. We come now to the question of the true construction of the act. Does it provide for a hearing as to whether the petitioners are of the class mentioned and described in the act and as to their compliance with the conditions of the act in regard to the proceedings prior to the presentation of the petition for the formation of the district? Is there any opportunity provided for a hearing upon notice to the land owners interested in the question whether their lands will be benefited by the proposed irrigation? . . .
“When the act speaks of a hearing of the petition, what is meant by it? Certainly it must extend to a hearing of the facts stated in the petition, and whether those who sign it are sufficient in number and are among the class of persons mentioned in the act as alone having the right to sign the same. . . .
“In the case of People v. Hagar,52 Cal. 171 , 182, it was held that the board of supervisors, on presentation of the petition, was to hear and determine the question of jurisdiction, and whether the allegations of the petition were true. An approval and confirmation of the petition and the establishment of the district was held to be a conclusive judgment by the board that the lands mentioned and in question were swamp lands; that the petitioners held the proper evidences of title thereto, and that the lands would be benefited by the reclamation. These jurisdictional facts, it was held, must exist before the district could law - fully be established. . . .
“The parties whose lands are thus included in the petition are entitled to a heading upon the question of benefits, and to have the lands excluded if the judgment of the board be against their being benefited. Unless the legislature decide the question of benefits itself, the landowner has the right *266 to be heard upon that question before his property can be taken. This, in substance, was determined by the decisions of this court in Spencer v. Merchant,125 U. S. 345 , 355 [31 L. Ed. 763 , 8 Sup. Ct. Rep. 921, see, also, Rose’s U. S. Notes], and Walston v. Nevin,128 U. S. 578 [32 L. Ed. 544 , 9 Sup. Ct. Rep. 192], Such a hearing upon notice is duly provided for in the act. . . .
“Thus the act provides for a hearing of the land owner both as to'the question whether his land will be benefited by the proposed irrigation, and when that has been decided in favor of 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, as construed, with reference to the objections considered under this third head, is unassailable. ...” (Italics ours.)
In
People
v.
Ontario,
The principle applied in the Fallbrook Irrigation District ease by the supreme court of the United States is well settled and has been constantly adhered to by this court in its decisions.
(Wilcox
v.
Engebretsen,
The only difficulty in applying the decisions on this subject is to determine whether or not the district created by the subordinate body in pursuance of an act of the legislature is in its nature a public corporation, the inhabitants and property owners of which are subject to taxation for municipal purposes without any hearing as to the benefits to be derived from the creation and conduct of such a corporation, or is an assessment district created for the *268 primary purpose of assessing upon private lands the benefits to be derived thereby from the public improvements for the purpose the district is formed.
In considering the curative provisions of the act in question and the provisions of the validating act, these statutes must be construed in the light of the constitutional power of the legislature as determined in the Fallbrook case, and if so construed they operate to deprive the property owner of due process of law, they must be to that extent disregarded as void and of no effect. For the foregoing reasons, section 4 of the act as amended in 1911, above quoted, in so far as it would give conclusive validity to the order of the board of supervisors in the absence of notice and hearing and would deprive the property owner at every subsequent stage of the proceedings of any right to contest the question as to whether or not his lands would be benefited, would be violative of the due process of law clauses of the federal and state constitutions. This defect would not be met by the opportunity afforded to contest the validity of an assessment under section 69, if that section be construed, as we have hereinbefore indicated it should be, to prohibit any inquiry into the question of benefit in contests as to the validity of assessments; unless such opportunity had elsewhere been given.
Section 72 of the act above quoted, in so far as it purports to limit all inquiry into the action of the board of supervisors in forming the district, must also be held unavailing to prevent such inquiry where that board has proceeded without jurisdiction.
The petitioner does not claim that it was prevented from offering testimony to the board of supervisors upon the *269 question of the irrigability of its land or upon the subject matter of its objection to its inclusion of its lands within the district or that proper notice was not in fact given of the hearing. Its claim is that no evidence was introduced before the board of supervisors of Madera County affirmatively showing that the lands would be benefited by the proposed plan of irrigation or of the publication of notice or of the sufficiency of the signatures to the petition for the formation of the district.
We now enter upon the question of whether or not upon this proceeding at bar to review the order of the board of supervisors the petitioner can take advantage of the mere failure of proof of the allegation of the petition. Upon this question the defendants contend that the plaintiff has • failed to state sufficient facts for the issuance of a writ of review or for the vacation of the order of the board because it has failed to allege the nonexistence of the jurisdictional facts, in that, it is not alleged that the petition for the formation of the district was in any respect faulty, or that the signatures thereto were insufficient, or that the notice of the hearing was not published, or that the plaintiff’s lands were not irrigable from the common source, or that such lands would not be benefited by the proposed plan of improvement, but that petitioner has contented itself with the mere allegation that no evidence was offered before the board of supervisors to prove these facts.
The court is limited in its proceedings to review the order of the board of supervisors to the record there made, and from that record the jurisdiction of the board to act in the premises must appear.
We will proceed to examine the matter from that standpoint, although it would be a much more satisfactory investigation if we had before us the return of the defendants, and were thus' assured'that the plaintiff’s agent had not verified the complaint upon the theory that the supervisors were only authorized to act upon “evidence” within the strict meaning of that term as used in court proceedings.
In
Stumpf
v.
Board of Supervisors,
“The determination of these questions, upon which the jurisdiction of the board depended, required the exercise of judicial power, and as the statute did not prescribe the character of the proof by which they should be determined,
they must be established in accordance with the rules of evidence recognized by the courts and the common law.
‘An exception to the rule that the sufficiency of the evidence will not be reviewed is made when the question is whether jurisdictional facts were or were not proved. This exception
*271
arises out of the most important office and function of the writ—the keeping of inferior courts and tribunals within proper bounds. If the decision of the inferior tribunal as to the sufficiency of the evidence to establish jurisdictional facts were not reviewable, the writ of
certiorari
would be of no avail as a remedy against an assumption of jurisdiction. 'And for the purpose of enabling the reviewing court to determine whether jurisdictional facts were established, it will require a return to be made of the evidence upon which such facts are based.’ (4 Ency. of Pl. & Pr. 262.) This court has said: ‘In all cases it is essential that there be proof of a sufficient petition, inasmuch as without it the board could acquire no jurisdiction to act, and its proceedings would be absolutely void. . . . Upon
certiorari,
though the inferior tribunal is 'required to certify only matters of record, yet if the jurisdictional facts do not appear of record, it must certify not only what is technically denominated the record, but such facts, or the evidence of them, as may be necessary to determine whatever question as to the jurisdiction of the tribunal may be involved.’
(In re Madera Irr. Dist.,
However, in the case of
Wolfskill
v.
City Council of Los Angeles,
In
Schwartz
v.
Superior Court, supra,
it is said that the jurisdiction of this court on review extended not “only to the whole record of the court below, but even to the evidence itself, where necessary to determine the jurisdictional facts,” citing
People
v.
Board of Delegates,
“The common-law writ of certiorari tried nothing but the jurisdiction, and incidentally the regularity of the proceedings upon which the jurisdiction depends. In many cases, therefore, under such writs, the evidence upon which the court acted in determining its jurisdiction was made a part of the record and reviewed under the writ, but the inquiry was always limited to the evidence before the tribunal whose determination was under review. If the jurisdiction of the inferior tribunal depended upon a question of fact, that fact was never tried de novo upon its merits, but the inquiry thereupon was limited strictly to the evidence upon which the inferior tribunal acted,” citing People ex rel. Whitney v. San Francisco Fire Dept.,14 Cal. 479 .
*273
Upon the allegations of the petition a writ of review should have been issued and if it appeared from the return, as alleged, that no showing whatever was made before the board of supervisors in support of the petition, the order of the board of supervisors in question should have been annulled, unless other considerations to be next considered require a different conclusion.
The first question to be so considered is the effect of section 72, hereinabove quoted. This section, if given full
*274
effect, would prevent any contest with reference to the findings and conclusions of the board of supervisors at the time of the fixing of the boundaries of the district except in the manner specified in the act, namely, in a proceeding brought by the attorney-general of the state (sec. 72 and sec. 4, as amended in 1911 [Stats. 1911, p. 139]). But, as we have already shown, section 4, in so far as it deprives the superior court of jurisdiction to review the proceedings of the board of supervisors, is unconstitutional, and section 72, in so far as it attempts to make the findings of the board of supervisors upon the hearing as to the benefits to be derived by the irrigation project conclusive, if construed to prohibit the inquiry upon direct attack in
certiorari
into the question of whether or not the supervisors conformed to the constitutional requirements of due process of law in exercising their jurisdiction, upon such direct attack, is also void because due process of law requires a hearing upon the question of benefits and evidence upon that subject
(Fallbrook Irr. Dist.
v.
Bradley, supra; Stumpf
v.
Board of Supervisors, supra;
see, also, other cases hereinabove cited on that subject). The constitution vests jurisdiction in the superior court in
certiorari,
and hence to review the action of the board of supervisors in fixing the boundaries of the proposed assessment district as at common law (Const. Cal., art. VI, sec. 5;
Camron
v.
Kenfield,
The respondents contend that where the district has been exercising the powers of a
de facto
corporation, after the
*275
electors of the district have voted for incorporation, it is too late to inquire into the validity of the order calling the election by a writ of review. There is nothing in this contention. Upon this point respondents quote from a concurring, opinion of Mr. Justice Finlayson of the second district court of appeal, second division, in the case of
Mitchell
v. Henry, 31 Cal. App. Dec. 597 (see, also,
We will next consider the effect of the validating act passed by the legislature of 1921 (Stats. 1921, c. 75, p. 76).
The respondents cite
State
v.
Squires,
We have not so far followed the supreme court of Iowa in its conclusion that such a special curative act is not violative of our constitution (see People v. Van Nuys Lighting Dist., supra), but even if we go so far, the validating act is void even under the Iowa decisions, as well as under our own. (People v. Van Nuys Lighting Dist., supra.) When, therefore, respondents rely upon the Iowa decisions to justify such legislation, as permissible because a general law is not applicable, they are met with the proposition that, considered merely as a curative statute, the act is unavailing to cure jurisdictional defects, while considered as an original exercise of legislative power, it is clearly violative of the constitutional prohibition of special legislation for reasons that presently will be more fully stated. In either event the validating act is unavailing to defeat the *277 plaintiff’s effort to secure a review of the action of the board of supervisors.
The motion to dismiss this appeal is denied.
The judgment of the superior court is reversed, with instructions to overrule the demurrer and issue a writ of review requiring the defendants to certify the entire record before them, including the reports, affidavits, admissions of the parties, and any information or statements, formal or informal, upon which they acted in reaching the conclusions embodied in their orders fixing the boundaries of the Madera Irrigation District, and in determining the suffi-
*278 cieney of the petition for the formation of such district, and that upon return the court proceed to determine whether or not the orders sought to be reviewed should be annulled.
. Shaw, C. J., Waste, J., Shurtleff, J., Lawlor, J., and Sloane, J., concurred.