People v. Parks

58 Cal. 624 | Cal. | 1881

Lead Opinion

McKee, J.:

The question presented for consideration in this case involves the constitutionality of an act of the Legislature entitled, “An Act to Promote Drainage,” passed April 23d, 1880. It is contended that the act is unconstitutional and void, and is no law, because it contravenes section 24 of article iv, of the Constitution, which requires that every act shall embrace but one subject, which shall be expressed in its title.

In the consideration of such a question, it is a cardinal rule that nothing but a clear violation of the Constitution will justify a Court in overruling the legislative will. Every statute is presumed to be constitutional, and every intendment is in favor of its validity. (Bourland v. Hildreth, 26 Cal. 161.) When a statute is challenged as in conflict with the fundamental law, a clear and substantial conflict must be found to exist to justify its condemnation; but when found, Courts must not hesitate to condemn. The Constitution is the voice of the people speaking in their sovereign capacity, and it must be heeded. When it speaks in plain language with reference to a particular matter, it must have effect as the paramount law of the land. (Matter of N. Y. E. R. Co., 70 N. Y. 342; Warner v. Beers, 23 Wend. 166; People v. Albertson, 55 N. Y. 54.)

1. According to the constitutional requirement for the enactment of statutory law, the title of every bill introduced into the Legislature must denote the subject of legislation; and when the legislative will on that subject has assumed the form of law, its provisions must correspond with the subject, of which the title is the name, standing for and representing it.

The title of the act under consideration fairly indicates hut one subject. As expressed in the title the whole object of legislation is “ to promote drainage.” Any one, after reading the title, would naturally expect to find in the body of the act, provisions for carrying that into effect as the whole object of the law; because such provisions, in view of the constitutional provision referred to, would be necessary to give unity and wholeness to the law. Provisions of an act may be numerous; but however numerous, if they can be, by fair intendment, considered as falling within the subject-matter of legislation, or necessary as ends and means to the attainment of the subject, the act will not conflict with the Constitution. But if the act shall be found to be made of incongruous parts, or to comprehend unconnected and dissimilar subjects to that expressed in its title, it can not be upheld. Under such circumstances, the title would not be a fair indication of the measures enacted, nor would the act itself be an honest expression of the legislative will, according to the forms of the Constitution. There would be wanting that unity of title and subject necessary to a constitutional law.

Looking beyond the title to the provisions embodied in the act under consideration, it will be found that they embrace more than one subject; and the question is, whether all of them fall within, or any one of them falls without, the subject expressed in the title.

By section 1, a Board of Drainage Commissioners is appointed to divide the State into several drainage districts and to establish the boundaries thereof (§ 3), and to organize each district (§§ 1-3), for the purpose of - carrying into effect the following objects, viz: “ The control of debris from mining and other operations; the improvement and rectification of river channels; and the erection of embankments • or dykes necessary for the protection of lands, towns, or cities, from inundation.” (§ 2.)

Of the board thus established, the Governor of the State was appointed President, and.to him, as Governor, was given power to appoint, within ten days after the organization of any drainage district, three persons residents of the district to act as a Board of Directors for the district, each of whom was to receive a salary of one hundred dollars per month, and to hold office for four years, and until his successor was appointed and qualified. (§§ 4, 5.) To each of such Boards of Directors, after it had organized by the election of a President, and each of its members had taken the oath of office, and given bond according to the provisions of section 4, power was given to appoint a Secretary and a District or Resident Engineer, and to fix their salaries (§§ 5, 13); to determine upon, with the aid of the State Engineer, a system or plan of works to be constructed in its district (§§ 7, 8); to agree upon and adopt plans and specifications for such works (§ 8); to award contracts for the construction of the same, upon the basis that no Chinese or Mongolians shall be directly or indirectly employed on them (§ 9); to take from any citizen within the district who might consent to the same, and, if his consent could not be obtained, to purchase from him any material necessary for the construction of any of the works; and to appropriate any lands which might be considered necessary for the right of way for any of the works for the drainage of the district, or “ on which to construct reservoirs for storing debris from the mines, whether the same be within or without the boundaries of the district.” (§ 11.) And, whenever acquisition of the right of way, or of material needed for the construction of levees, or reservoirs for the storage of debris, or of lands for the construction and completion of the system or plan of works adopted, could not be had from the owners, the board was authorized to institute proceedings, in the name of the district, for the condemnation of such right of way, material, and lands, under the provisions of the Code of Civil Procedure regulating the exercise of the power of eminent domain. (§ 12.) And, to defray official salaries, and the cost and expenses incurred in the scheme of improvements for each district, each board was empowered to raise money, in exercise of the powers of assessment and taxation, by levying a tax upon all the property of the district to the extent of one twentieth of one per cent, on the value of the taxable property therein, and an assessment upon all the hydraulic mines, and all mines washing earth or ores with water, of one half of one per cent, for each miner’s inch of water of each twenty-four hours’ run used during the year; and upon all swamp and overflowed lands in the district to the extent of not exceeding three dollars per acre. (§§ 15-23.) In addition to which, provision was made in the act for the levying of a State tax, in the year 1880, and each year thereafter, of one twentieth of one per cent, on all the taxable property in the State. (§ 24.) All these assessments and tax,es were made collectible and payable as State and county taxes. But the moneys thus raised were to be used " exclusively for the construction of dams for impounding the debris from the mines hereinbefore specified, and for the improvement and rectification of river channels, in which said debris flows within the drainage district to be formed under the provisions of this act, at such points thereof as shall be designated by the State Engineer, or deemed necessary by the Board of Directors of such drainage district.” (§ 24.) _

_ It will thus be seen that the body and scope of the act include a combination of subjects. The construction of reservoirs for the storage of debris from mines, the protection of lands, towns, or cities from inundation by the erection of embankments or dykes, the drainage of certain districts of the State by the rectification of river channels, and the levy of special taxes to carry on a system of public works, are all inseparably conjoined in the body of the act. The extraordinary powers conferred upon the District Board of Directors are to be exercised for the benefit of all the subjects conjointly; and the money to be raised by the exercise of these powers is to be expended for all without distinction as to any particular ones, thus rendering it impossible to disjoin the subjects embraced in the act, which are not expressed in its title, from the subject expressed in the title, so as to adjudge the one void and the other valid, as might be done under section 24, of article iv, of the Constitution.

Nor are all the subjects of the act such as would naturally fall within the subject of its title. The storage of debris, “from mining and other operations,” seems to be the paramount object of the act, to promote drainage the subordinate. What the phrase “ other operations” may mean is not clear from the act itself. Under it may be concealed many subjects which are not expressed in the title; and the existence of such a phrase in a statute renders it obnoxious to the constitutional provision under consideration. But the storage of debris, and the promotion of the drainage of a district of country, are things essentially different. The one has no necessary connection with the other. To drain land is to rid it of its superfluous moisture. This is generally done by deepening, straightening, or embanking the natural watercourses which run through it, and by supplementing them when necessary by artificial ditches and canals; but it is not within the art of the drainer to promote drainage by building reservoirs for the storage of debris from “ mining and other operations,” unless the word is to be wrenched from its geological or ordinary signification and meaning, and changed so as to mean water, at any mining or other locality where debris may have accumulated.

Besides, the storage of debris is, in its nature, a private enterprise in which the few only are interested. The drainage of a State is a public purpose in which the public may be interested. To promote a public purpose by a tax levy upon the property in the State, is within the power of the Legislature; but the Legislature has no power to impose taxes for the benefit of individuals connected with a private enterprise, even though the private enterprise might benefit the local public in a remote or collateral way. Legislative power of taxation is not illimitable. It can be used only in aid of a public object—an object which is within the purpose for which governments are established. In the vigorous language of the Supreme Court of Pennsylvania, “ the Legislature has no constitutional right to levy a tax, or to authorize any municipal corporation to do it, in order to raise funds for a mere private purpose. No such authority passed to the Assemby by the general grant of the legislative power. This would not be legislation. Taxation is a mode of raising revenue for public purposes. When it is prostituted to objects in no way connected with the public interest or welfare, it ceases to be taxation and becomes plunder.” (Sharpless v. Mayor etc., 21 Penn. 168.)

At the least, then, two heterogeneous subjects are embraced in the act, one of which is not expressed in the title, and they can not be segregated. The title does not express the objects of legislation embodied in the provisions of the act. It is, therefore, narrower than the body of the act, and fails to impart that notice of the measures enacted, which the Constitution requires. To prohibit such legislation was the sole end and aim of the constitutional requirement. “ The practice,” says the Supreme Court of Missouri, “ of comprising in one bill subjects of a diverse and antagonistic nature, in order to combine in its support members who were in favor of particular measures, but neither of which could command the requisite majority on its own merits, was found to be not a corruptive influence in the Legislature itself, but destructive of the best interests of the State. But this was not more detrimental than that other pernicious practice, by which, through dexterous and unscrupulous management, designing men inserted clauses in the bodies of bills, of the true meaning of which the titles gave no indication, and by skillful maneuvering urged them on to their passage. These things led to fraud and injury, and it was found necessary to apply a corrective in the shape of a constitutional provision.” (City of St. Louis v. Tiefel, 42 Mo. 590.) This provision has been framed in the constitutions of many of the States of the Union; and Courts,-whenever it has come before them, have liberally construed it as the will of the people in the interests of honest legislation.

In the People v. Denahy, 20 Mich. 350, Mr. Justice Cooley, in considering a statute which provided for the expenditure of non-resident highway taxes, for the improvement of two State roads, and for the construction and improvement of another State road, which was not expressed in the title, uses this language: “ These objects have no necessary connection, and being grouped together in one bill, legislators are not •only precluded from expressing, by their votes, their opinion upon each separately, but they are so united as to invite a combination of interests among the friends of each, in' order to secure the success of all, when, perhaps, neither could be passed separately. The evils of that species of omnibus legislation, which the Constitution designed to prohibit, are all invited by acts thus framed; and though we have no reason to suppose that those evils actually existed in the present case, or that there was any purpose on the part of the Legislature to disregard the constitutional requirement, yet We can not be governed by these considerations if the act is of a class which is actually prohibited.”

In Rader v. Township of Union, 39 N. J. 514, it was held that a statute entitled “ An Act in relation to streets in Union Township,” could not embrace a power to lay out a park. “The making and control of streets,” says Mr. Chief Justice Beasley, “is a thing entirely different from the making of parks; the two have no connection, and neither is an adjunct to the other; and it is impossible, as it seems to me, to hold that a description of one embraces both.”

In Walker v. The State, 49 Ala. 329, a statute entitled, “An act to restrict the sale of personal property in certain cases,” which also provided that the willful destruction of personal property on which there was an unsatisfied lien, should be considered a criminal offense and punishable as a misdemeanor, was held to contain a subject foreign to that expressed in the title. And in State v. Silva, 9 Nev. 227, it was held that where a statute entitled “An act to regulate marks and brands,” and containing a provision that any person who, with intent to defraud, kills any stock running at large, whether branded, marked, or not, shall, upon conviction, be deemed guilty of felony, was unconstitutional and void, because it contained a subject which bore no relation to the subject expressed in the title.

2. Moreover, the Legislature has not, in any of the provisions of the act under consideration, designated any particular river, stream, or locality within the State where drainage is necessary; nor has it located or established the boundaries of any drainage and assessment district within the limits of which taxes are to be levied, assessed, and collected, for the purpose of raising funds to defray the cost and expenses of the system of works designed by the act. What has been done is to appoint a commission constituted of State executive officers, one of whom—the State Engineer—is required to go over the State for the purpose of investigating the subject of drainage, with a view to the control of debris from mining and other operations, the improvement and rectification of river channels, the erection of embankments or dykes necessary for the protection of lands, towns, or cities from inundation, and the division of the State into several drainage districts, each of which shall include a territory drained by one natural system of drainage. This investigation was not intended to be advisory to the Legislature or to enable it to perforin its duty with reference to the subject of the investigation; for, although the engineer was required to report the result of his examinations, his report was to be made to the board, of which he was a member, for their consideration, judgment and action, and not to the Legislature. In the consideration of the report the board could accept or reject it altogether, or amend it. If they reject it, that ended legislation upon the subject, and the act became dead. If they adopted it in its original form, or amended it, and adopted it as amended, they were, then, authorized to declare, by a resolution entered upon the record of their proceedings, the territory, as described and bounded in their report, to be a drainage district. The entire subject, including the necessity for drainage of any particular section of the State, and the creation and organization of drainage districts, was, therefore, referred, by the act, to the Board of Commissioners with power to legislate, and for that purpose an almost unlimited discretion was given to them. It was for them, in the exercise of their powers, to decide whether any drainage district, as contemplated by the act, was necessary at all or not, or whether there was a necessity for one or many. They could create one or many wherever, in their judgment, that necessity existed, whether they included a territory drained by one system of drainage or not. They could limit them to a particular section of the State, or they could cover the State with them. The entire act was thus made contingent upon their judgment' and discretion. If they found some locality indicated by the act, the drainage of which was necessary to be improved or promoted, for the purposes provided for by the act, the statute was expedient. If, on the other hand, they found no such locality and no such necessity, the statute was inexpedient. But the provisions of the act were dead and unenforceable until revived by a determination of those questions by the commissioners. Not until they were finally determined, and one or more districts were created and organized, could the provisions of the act for a system of public improvement within the district, and the levy, assessment, and collection of taxes to pay for it, be put in operation by the District Board of Directors. I think that the determination of those things could not be referred to a Board of Commissioners or other body. To decide upon the necessity for drainage for a part or all of the territory of a State is to declare a public purpose. To declare a public purpose, and to create a district over a designated area of the State, in which that purpose shall be accomplished, and to provide ways and means for its accomplishment, are matters which belong exclusively to the Legislature. If a necessity exists for the construction of public improvements within the State for a public purpose, the Legislature must declare it. If a district has to be created over an area of the State the Legislature must create it, and establish its limits. If property within it will be benefited by the improvement, the Legislature must determine it, and prescribe the rules upon which taxation must be apportioned. There are powers conferred upon it alone by the Constitution, and it can not delegate them to any other department of the government, or to any agency of its appointment, because it would be confiding to others that legislative discretion which legislators are bound to exercise themselves, and which they can not delegate to any other man or men to be exercised. (Cooley’s Const. Lim. 121,122.) Most of all, the Legislature can not delegate such powers to executive officers of the State, because the Constitution has divided the powers of government into three departments—the Legislative, Executive, and Judicial; and has declared that no person, charged with the exercise of powers properly belonging to one of these departments, shall exercise any function pertaining to either of the others, except it is expressly directed or permitted by the Constitution. (Const., art. iii, § 1.) Mo such direction or permission is contained in any part of the Constitution. I am, therefore, of opinion that the entire act is unconstitutional, because its provisions are made contingent upon the judgment and discretion of the board of Drainage Commissioners; and because in making it so contingent the Legislature delegated to the board powers which are not in their nature transferable (especially to executive officers of the State), and which can be exercised by the Legislature alone. (Houghton v. Austin, 47 Cal. 653; Ex parte Wall, 48 id. 280; Richardson v. Heydenfelt, 46 id. 68.)

3. Furthermore, I think that the act is unconstitutional, because it authorizes a local board—the District Board of Directors—to levy a tax and two assessments for a public purposes, at the same time, upon the same property, in addition ' to a tax levied by the State for the same purpose, upon all the property of the State, which, of course, includes the property within the district. The first of these levies by the Board of Directors is authorized to be made upon all the property within the district; the second, upon “all hydraulic mines and upon all mines washing earth or ores with water running into the district;” and the third, upon the valuation of swamp and overflowed lands reclaimed by the construction of any of the works contemplated by the act. The first was to be made according to the standard of valuation; the second, upon the basis of “ one half of one per cent, for each miner’s inch of water of each twenty-four hours’ run used during the year;” and the third, upon the basis of the value of the reclamation of the lands reclaimed, not to exceed three dollars per acre.

Of the power of the Legislature to authorize municipal corporations to impose or levy local rates, taxes, or assessments upon all property within the limits of a designated taxing district, there is no question; and that power may be exercised so as to authorize a quasi corporation—such as a Board of Commissioners or other body, whose rights and duties are prescribed by the Legislature, for a local purpose, within the limits of a special taxing district, designated by the Legislature. But none of these taxes or assessments is authorized to be levied for a local purpose. All the moneys to be raised by the modes prescribed by the act are to be used exclusively for paying the costs and expenses of the public works authorized to be constructed within each district, for the purposes embraced in the act. It is, therefore, a general public benefit, and a local board can not be authorized to levy local taxes and assessments for a public purpose. Such a power could not be conferred upon a municipal corporation (Const., art. xi., § 12), neither can it be conferred upon a quasi municipal corporation.

Besides, duplicate or triplicate taxation levied at the same time, and for the same purpose and upon the same property within a territory of the State which has not been established by the Legislature as a special taxing district, is void, whether levied according to the standard of valuation or benefits. Such taxation is destructive of that equality and uniformity which the Constitution requires for the validity of every tax.

Judgment reversed.

Morrison, C. J., concurred in the judgment.

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Concurrence Opinion

Ross, J., concurring:

Quite a serious objection is made to the title of the act in question, but if that was the only objection to it, I do not know but that I would vote to sustain it. Undoubtedly some such title as this would have more nearly expressed its purpose as shown in its body: “ An act to provide for the impounding of debris, and for the improvement and rectification of river channels in which debris flows, and to levy and collect taxes and assessments to pay the cost of the same.” Still, there is a good deal of force in what is said in support of the proposition that the title—“ An act to promote drainage”—is such an expression as would fairly and reasonably give notice of the subject embraced in the body. I express no opinion as to the title, since there is at least one objection urged, which, to my mind, is fatal to the legislation.

Our organic law declares: “ The powers of the Government of the State of California shall be divided into three departs ments—Legislative, Executive, and Judicial; and no person charged' with the exercise of powers properly belonging to one of these departments shall exercise any functions pertaining to either of the others, except as in this Constitution expressly directed or permitted.” (Const., art. iii.)

The Governor, Surveyor-General, and State Engineer are executive officers, and .are expressly prohibited by the constitutional provision just quoted from exercising any legislative or judicial powers, except as in the Constitution expressly directed or permitted. Yet the very first section of the act “to promote drainage” constitutes these executive officers a “ Board of Drainage Commissioners”—to do what ? Not anything with reference to any drainage or other district fixed or declared by the Legislature itself, for the Legislature did not fix or declare any such district; hut the commissioners are to divide the State into drainage districts: “ Section 1. The Governor, Surveyor-General, and State Engineer shall he the ex offucio members of and constitute a Board of Drainage. Commissioners, to divide the State into several drainage districts, and organize the same as hereinafter provided.” * * *

“ Section 2. Within thirty days after the passage of this act, or as soon thereafter as may be practicable, the State Engineer shall submit to said board a report or reports of his investigations as to drainage, having in view the control of debris from mining and other operations, the improvement and rectification of river channels, the erection of embankments or dykes necessary for the protection of lands, towns, or cities from inundation. He shall also make special examinations with reference to the division of the State into several drainage districts, each of which shall include a territory drained by one natural system of drainage, and shall report to the Board of Drainage Commissioners the result of his examinations, and shall from time to time propose boundaries for such districts, and recommend their formation.”

“Section 3. After the State Engineer has reported the boundaries and recommended the formation of one or more drainage districts, the board shall proceed to consider the same, and may adopt, amend, or reject said report; but if adopted by them, either in its original form or as amended, they shall, by resolution entered upon the record of their proceedings, declare the said territory to be, and the same shall thereupon become, a drainage district,” etc.

These provisions, in my opinion, clearly substitute the judgment and discretion of the executive officers mentioned, in the matter of the establishment of the drainage districts, for .the judgment and discretion of the Legislature itself. The act begins by creating them a Board of Drainage Commissioners for the express purpose of dividing the State into drainage districts. Without any further directions in that regard, the next section requires one'of the commissioners— the engineer—to submit to the board a report or reports containing the result of his investigations as to drainage, having in view the control of debris from mining and other operations, etc., followed by the provision that “ he shall also make special examinations with reference to the division of the State into several drainage districts, each of which shall include a territory drained by one natural system of drainage, and shall report to the Board of Drainage Commissioners the result of his examinations, and shall from time to time propose boundaries for such districts and recommend their formation.”

The only limitation here imposed upon the engineer is that each district “ shall include a territory drained by one natural system of drainage.” But who is to say whether the district reported by the engineer does or does not include a territory drained by one natural system of drainage ? The engineer’s report is not to be made to the Legislature, for its action, but to the Board of Drainage Commissioners, of which the engineer is one. The act does not attempt to say what shall constitute a natural system of drainage. That matter is left, in the first instance, to the judgment and discretion of the State Engineer, and next, to the judgment and discretion of the Board of Drainage Commissioners. The engineer “ shall from time to time propose boundaries for such districts and recommend their formation.” His report is to be made to, and acted upon by the board, which may adopt, amend, or reject the report; if adopted, either in its original form or as amended, the board shall by resolution declare the territory to be, and the same shall thereupon become, a drainage district. It is perfectly plain that the duties thus devolved upon these executive officers are not ministerial. Without their action there is and can be no district at all. In organizing one or many they necessarily bring to bear their judgment and discretion. They say what territory is drained by one natural system of drainage, and determine the boundaries accordingly. Should they say that all that part of the State lying north of San Francisco is drained by one such system, and all that part of the State lying to the south of San Francisco is drained by another such system, and so establish the lines, who, if the act is valid, can question their determination ? If they form a hundred districts, is not their action equally conclusive ? And who can compel them to form any ?' They may adopt, amend, or reject the report of the engineer, and if adopted by them, either in its original form or as amended, the territory included becomes a district. But there is no power anywhere to compel them to establish any particular district or districts, for the act has left the determination of those questions to their judgment and discretion. This it could not constitutionally do. The establishment of such districts is a legislative function, to be exercised by a legislative body; and the Legislature is expressly prohibited by the Constitution of the i State from clothing any of its executive officers with such power.

Numerous other objections are made to the act, which, in my view, need not be determined, since the one just considered is fatal to it.

Thornton, J., concurred in the opinion of Mr. Justice Ross.

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Concurrence Opinion

Myrick, J., concurring:

I. As to whether the object of the act is expressed in its title.

The title is “An act to promote drainage.” It was held in Goldthwait v. Inhabitants etc., 5 Gray, 63, that the word “ drain” has no technical or exact meaning. Webster’s Dictionary defines the word “ drain” thus:

1. To draw off by degrees; to cause to flow gradually out or off; hence, to cause the exhaustion of.

2. To exhaust of liquid contents by draining them off; to make gradually dry or empty, to deprive of moisture; hence, to exhaust.

3. To cause to pass through some porous mass or substance for the purpose of clarifying; to filter.

And, “ Drainage (Engin.), the system of drains and their operation, by which water is removed from towns, railway beds, and other works.”

The definition of the word “drain” given in Worcester’s Dictionary is somewhat different from Webster’s, in that the idea expressed in the third definition as above is entirely omitted; thus showing that lexicographers differ.

Now, is it the object of the act, that the waters flowing-down the river channels, bearing mining debris, shall be so impounded as that it shall flow off gradually; that the debris shall be exhausted of water and rendered dry; that the water shall pass through some porous substance, as, dams, for the purpose of being clarified of the debris; that they shall be held impounded so that the debris may settle, the waters then to pass off, without carrying the debris into the channels below? If yea, do not these purposes all come within the definitions ? And if it is designed that the waters flowing in the lower channels, near cities and in the farming regions, shall be free from sediment, so that the channels shall not be "filled and thus cause overflows, is not this and the construction of embankments parts of a system of drainage ? I have examined the act in question, and I have not observed any provision inconsistent with, or having other objects in view, than the promotion of drainage. The Legislature has power to deem that a Board of Drainage Commissioners, a State Engineer, reports of such officers, the control of debris from mining and other operations, the improvement and rectification of river channels, the erection of embankments or dykes necessary for the protection of lands, towns, or cities from inundation, the creation of districts, and of district hoards of directors, the erection of works, the condemnation of needed lands, the imposing and collection of assessments to provide necessary funds, to be proper parts of a system for the promotion of drainage; and if so, its opinion in that regard is binding upon us.

The people of this State have, through their regularly constituted representatives, declared in favor of such a system, with such provisions; and I see nothing in the act which renders it in this regard unconstitutional.

II. The proposition that the act in question is local, is scarcely tenable. Counsel for appellants state in their brief, in arguing upon this point: “ The Court will take judicial notice of what portion of our State furnishes debris from mines,” and they further state that “ the only drainage district-that ever can be formed under this act, and receive the benefit of the State tax, is the one attacked in this suit, and which. assumes to embrace the territory drained by the Sacramento River and its tributaries.” It may well be doubted if this Court can take judicial notice of what portion of the State furnishes debris from mines, and it can hardly be practicable for counsel to forecast the possible future mining territory of the State. I apprehend that such knowledge would be very valuable. Who can tell whether at the headwaters of nearly every river in the State, from the Santa Ana to the Klamath—the Los Angeles, the San Gabriel, the San Joaquin, the Kern, the Merced, the Tuolumne, the Calaveras, Trinity, Humboldt, Eel, Russian—there are not mineral-bearing lands, which will next year, or at some time, by hydraulic or other mining, yield debris to be carried down the streams ? The act is for the whole state, wherever there may be occasion for its operation, at the present time, as well as any future period. The area drained by the Sacramento River and the other rivers above named (no one of which other rivers is tributary to the Sacramento), comprises the larger portion of the State, and we are not judicially advised but that there have been and are at the present day mining operations on the Tuolumne, Kern, San Gabriel, Calaveras, Klamath, Trinity, Shasta, and others not 'within the drainage of the Sacramento—even the tributaries of the Truckee.

It is scarcely necessary to say, that with the wisdom or policy of this act the Courts have nothing to do; the personal opinions of Judges as to the propriety of the act is not sought for, and is of little importance. The legislative department is to determine as to the policy of an act; the judicial as to its constitutionality.

III. It is alleged that the act is unconstitutional, in that the taxes to be levied and collected are not uniform, a portion being provided to come from the State at large and a portion from each district. The act provides that the requisite funds shall come from four sources, viz.:

1. A tax of one twentieth of one per cent, is to be levied upon all the property in the district, the money so raised to go into the fund for the district.

2. An assessment pro rata, according to water used, is to be made upon all mines washing earth or ores with water running in the district, the money to be placed to the credit of the district.

3. An assessment per acre, is to be made on swamp and overflowed land which may be reclaimed by operations under the act, such funds also to go to the credit of the district.

4. A State tax of one twentieth of one per cent, is to be levied upon all the property in the State, which fund is to constitute a State drainage construction fund.

It has been suggested that these taxes and assessments, or the funds thereby to be raised, are unequal and unjust, not only because the property in the district is to be assessed for its portion of the State tax, and again for a portion of the district tax, and again (if swamp and overflowed land) for its reclamation, but there is to be a direct pro rata assessment upon mines for using water. In that connection, it is also suggested that if hydraulic mining is a legitimate avocation, and if miners have a legal right to wash ores and earth and let the debris flow into the streams, the imposing of a charge upon them for the protection of the property of persons below them is unjust; and on the other hand, if the miners have not the legal right to wash ores and earth in such manner as that the debris will flow into the streams, to' the detriment of persons below, such persons owning property below should not and can not be made to bear any portion of the burden. There is much force in the suggestions. Let us see, then, how the questions involved might have appeared to the Legislature—for, as has been suggested, with us it is a question of power, not of policy. This Court will take judicial notice that there are rivers in this State, such as the Sacramento and San Joaquin, which are in law navigable streams. Whether They are or are not such in fact, we do not take judicial notice of. It is possible that those streams have, as a matter of fact, during thirty years of mining operations, been so filled with mining and other debris as that the navigation of them has been seriously interfered with; it may be that the Bay of San Francisco and the channels leading into and out of it have become less free for navigation. It may be, also, that the streams above the points of navigation have become so filled by the same cause as that the channels are insufficient to carry off surplus water during rainy seasons, thus causing lands within a given district to be overflowed. There is power in the Legislature to create districts for local improvements, and to declare what lands are benefited, and to fix the charge upon such lands. It may be that the mining and agricultural interests of the State are so far interwoven with the general prosperity as that the State at large would be seriously injured unless each is permitted and protected. It may be to the interest of the State that the impending trial of legal right as between the mining and agricultural interests should be avoided if possible. It may be impossible for the agricultural interests to fix definitely the source of all the debris which has been or may be borne down the streams. It may be impossible for the owners of any one mine to show that the debris from that one mine has not tended to swell the aggregate going to the lower channels. Taking, then, all these suggestions into consideration—and they are but suggestions, and a few only of those which might be made—was it not competent for the Legislature to say: Here are the navigable waters and the other interests in which the State is concerned; the State is also, in a measure, interested in having its tax rolls increased rather than diminished; here are districts drained<by a system of rivers, in which those districts are interested; here are towns and cities to be protected, even the capital of the State; here are agricultural interests, and here are mining interests; here are streams nearly or quite filled with debris, causing the inundation of immense tracts of country; the debris is already there—not threatened only, but there—and by a proper system of drainage these channels can be cleared and the waters flow in proper course; it is to the well-being of the State that none of these interests should be entirely done away with; the portion of the burden of protecting all, to be borne by the State at large, is the proportion that one twentieth of one per cent, of the taxable property of the State bears to the entire cost; the portion of the burden to be borne by the owners of mines besides the property tax, is, the pro rata water tax (or license, or whatever it may be called), named in the act; the portion of the burden to be borne by reclaimed lands, beyond the property tax, and as an increased value by reason of the reclamation, is the assessment thereon authorized by the act; and the portion of the burden to be borne by the district, for its own benefits, as distinct from the others, is the proportion that one twentieth of one per cent, of the taxable property of the district bears to the entire cost. Was it not competent for the Legislature to so say and determine ? All these questions are questions of fact, or of State and local policy.

I have avoided the consideration of the questions in dispute in this State between the mining and agricultural interests, further than to show that the Legislature might, in the interests of the people at large, take those questions into consideration in endeavoring to inaugurate a plan for the compromise and mutual satisfaction of those interests. The Courts, should they be called upon to deal with those questions; must be governed by the law as they find it to be; and the losing party must abide the result; but it is competent for the Legislature, and it may frequently be the wiser, to harmonize conflicting interests, by pursuing such course as may not be inconsistent with the Constitution; and, if the statute of one year shall not be found to operate in accordance with the public will, amendment or repeal may be an adequate remedy.

IY. In my view, however, the act is obnoxious to the Constitution; and that is in that part of it discussed in the opinion of Mr. Justice Ross, and in paragraph ii of the opinion of Mr. Justice McKee. Suppose the act, instead of saying, the Governor, Surveyor-General, and State Engineer shall constitute a Board of Drainage Commissioners to divide the State into several drainage districts, had said, the Governor, the Chief Justice of this Court, and a Judge of the Superior Court of Sacramento County shall constitute a board for the same purpose, would it not have been an endeavor to cast upon members of two departments of the Government functions which are, under the Constitution, to be exercised by the other department ? To create districts and to parcel out the State is a legislative function. The principle decided in Borel v. Boggs, December 28th, 1880, does not apply to this case. The acts involved in that case established the lines of the counties, leaving to the surveyor the duty, merely, of marking the lines thus established.

It may be very much doubted if, by the so-called Drainage Act, even its probable meaning and intent is expressed, Adz.: In speaking of the formation of the districts, it says, “ each of Avhich shall include a territory drained by one natural system of drainage.” It does not say that each district shall include all the territory drained by one system, but that the territory included within the district shall be drained by one system; a distinction leaving open a wide door for the creation of an almost unlimited number of districts.

Therefore, and for the reasons given upon this subject by Mr. Justice McKee and Justice Ross, I concur in the judgment.

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Concurrence Opinion

McKinstry, J., concurring:

I feel compelled to concur in the judgment.

1. It seems to me to be perfectly safe to say that the Legislature would not have passed the act under consideration had it contained only the section which provides for a general tax throughout the State. The statute provides: First, for a tax upon all the property in the State; second, for an additional tax upon all the property within any “ district” which may be defined by the Governor, Surveyor-General; and State Engineer; third, for a tax—in addition to the other two—of three dollars an acre on any lands within the district which may be “reclaimed;” fourth, for a tax or license to be paid by each person, carrying on hydraulic mining within the district, which he is to pay on top of the direct State and district taxes.

A reference ,to the debates in the Senate and Assembly will show that the statute commended itself to the support of members by reason of this unequal distribution of the burden of taxation. All that relates to the State tax is found in one of twenty-nine sections. The State tax is but part of a scheme, which certainly contemplates not merely that a State tax shall be levied and collected, but that work shall be done, and the local taxes be also levied and collected. The distribution of a statute into sections is purely artificial, and the real point always is whether the provisions are essentially and inseparably connected in substance. (Robinson v. Bidwell, 22 Cal. 379; Commonwealth v. Hutchings, 5 Gray, 585.) It is a well-settled rule that when a portion of an act is constitutional and another is unconstitutional, if the two are so inseparably blended together as to make it clear that either clause would not have been enacted without the other, the whole act must fall. (San Francisco v. S. V. W. W., 48 Cal. 494.)

2. The act does not' contain a legislative declaration that the draining of any and all overflowed lands in the State shall constitute a public benefit, or that the draining of any definite tract of such lands will be of benefit to the occupants or owners of adjacent lands—as a sanitary measure or otherwise. If the act had declared that lands specifically described should be drained, I am not prepared to say that the task of ascertaining what lands would be benefited might not be assigned to executive officers, or that the lands reported by such officers would not constitute a legal assessment district. (Sed query? Cooley on Taxation, 113.) But by the act in question the whole discretion of determining whether the draining of any lands which they may select will be beneficial to a greater or lesser public, is transferred to three State executive officers (not constituting a local legislative body), to whom is confided the power of deciding that a tax shall be levied upon those whom they shall adjudge will be benefited by a work which they shall declare to be public and expedient. A statute which should attempt to empower an executive officer to decide that any work, anywhere in the State, which he might deem of public benefit should be a public work, and that he might lay out a district to be assessed for the construction of such work, would be objectionable only in degree more than the act before us. Such powers are legislative, and can not be delegated to executive or judicial officers.

3. But the act creates no relation between the taxes to be levied within any district which the State Board may choose to establish and the benefits received by such district. It is only where such relation exists or is provided for that assessments for local benefits can be upheld. Local assessments are imposed occasionally as required upon a limited class of persons interested in a local improvement, and who are assumed to be benefited by the improvement to the extent of the assessment; and they are imposed and collected as an equivalent for that benefit, and to pay for the improvement. They are known distinctively as “ assessments for benefits.” (Nichols v. Bridgeport, 24 Conn. 207; 36 id. 255, 262.) The theory of the law is that full compensation is received in every instance. (Cooley on Tax. 431.) The several taxes provided for by the act of April 23d, 1880, are arbitrary. All the property within a district must pay one twentieth of one per cent, on its value; all the lands reclaimed must pay three dollars an acre, etc. If more money is collected in the district by the various means named in the act than is necessary to pay for the work done and incidental expenses (a contingency which, however improbable, may arise) what becomes of the excess ? All other laws which have provided for assessments, for local benefits, have furnished a mode by which the amount necessary to secure the benefit is to be ascertained before the assessment is levied. Unless so provided for, each person assessed may pay more than an equivalent for the benefit he receives. So far as the tax on all the lands in a district is concerned, it may under the act be required to be paid before the work is completed or commenced. But, if this were not so, the defect is' in the law itself, which can not be held to be good, because, by possibility, all the money raised in the State at large, and from the three modes of taxation applicable within a district, may be expended by the Board of Directors of that district. The limited time accorded me will not permit an elaboration of this view.

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Dissenting Opinion

Sharpstein, J., dissenting:

It seems to me that most of the grounds upon which it is claimed that the “act to promote drainage” is unconstitutional can not be considered in this case. Courts will not listen to an objection made to the constitutionality of an act by a party whose rights it does not affect. A statute is assumed to be valid until some one complains whose rights it invades. (Cooley’s Const. Dim. 163.) In the language of the code: “Every action must be prosecuted in the name of the real party in interest.” This action is brought by the people of the State, and if the provisions which affect them are constitutional, they are not necessarily affected by the other provisions of the act, even though they be unconstitutional. “A statute may contain some such provisions, and yet the same act, having received the sanction of all branches of the Legislature, and being in the form of law, may contain other useful and salutary provisions not obnoxious to any just constitutional exception. It would be inconsistent with all just principles of constitutional law to adjudge these enactments void because they are associated in the same act, but not connected with or dependent on others which are unconstitutional. (Cooley’s Const. Lim. 177.)

I know of no provision of the Constitution, and am not advised that it is claimed that there is any, to which this act, so far as it provides for the reclamation of overflowed lands, the rectification of river courses, and the impounding of debris, at the expense of the State, under the direction of Commissioners and Directors, named in the act, or whose appointment is authorized by it, is repugnant. But it is claimed that the power conferred upon the Board of Drainage Commissioners, to fix the boundaries of drainage districts, is legislative in its character, and can not be delegated to the executive officers who, by virtue of the act, constitute that board. " One of the settled maxims in constitutional law is, that the power conferred upon the Legislature to make laws can not be delegated by that department to any other body or authority.” (Cooley’s Const. Lim. 116.) If the act under consideration attempts to delegate that power to any other department of the Government, or to any board, person, or persons whatsoever, it must be held to be, to that extent, at least, unconstitutional

It can make no difference whether the attempt is made to confer that power upon another department of the Government, or upon persons not connected with the Government. The power cannot be delegated.

The objection, however, is not that an- attempt is made to delegate the law-making power to a Board of Drainage Commissioners, but -that the act authorizes the board to establish drainage districts, and that that is purely legislative. Whether it be or not, I think, must depend upon the object for which such a district is formed. If formed for the purpose of levying a special tax upon the property within it, to defray the expenses of improvements, assumed to be more beneficial to the inhabitants of such district than to others, the rule doubtless is that the Legislature must determine what shall constitute such a district, unless the nature of the case conclusively fixes it. The object of dividing the State into districts, as stated in the act, is not for the purpose of determining what portions of the State shall be assessed or taxed to pay the cost of the work. Each district is to be composed of “ territory drained by one natural system of drainage.” It seems to me that the formation of districts upon that plan would require engineering, rather than legislative skill.

Whether the designation of officers, commissioners, or persons to determine within what limits lands shall be held to be benefited by an improvement, would constitute a delegation of legislative power, is a question which, as I view it, does not arise in this case.

I am not satisfied that the Legislature did not possess the constitutional power:

1. To appoint the officers, named in the act, as a board of drainage commissioners, with power to divide the State into drainage districts and to organize the same.

2. To authorize the Governor to appoint directors to prosecute the work contemplated by the act, within any such organized district.

3. To levy a State tax for the purpose of raising money to defray the expenses of said work.

Unless some or all of these provisions of the act are unconstitutional, this action can not, in my judgment, be maintained.

The prayer of the complaint is:

“ I. That said defendants and each of them be ousted from said office of Director of Drainage District Number One of said State.

“ II. That said defendants be perpetually enjoined and restrained from letting any contracts for the building of dykes, embankments, or other works for the drainage of said district.

“ III. That said defendants be perpetually enjoined from levying any tax whatever upon the property, or any property within said district for the purpose of providing funds for the payment of the cost of building works of drainage, or any other purpose.

“ IV. For the decree of this Court determining that said asserted Drainage District Number One has not been legally formed, and is not a drainage district.”

For reasons which I have stated, I do not think that the act is so clearly unconstitutional as to entitle the plaintiff to the relief prayed in the first, second, or fourth paragraphs of the prayer. As to the third, I do not think that the people of the state can be heard to object to the levying of a tax upon property within the district designated. As before intimated, I think that the legality of that tax can only be called in question by some person or persons who, if its collection be not enjoined, will be liable to pay some part of it.

It is not claimed that the people of the entire State occupy that position.

The conclusion at which I have arrived is,-that if all those provisions of the act which contemplate the raising of funds by taxation or assessing any property other than that of the entire State, should be held to be unconstitutional, the defendants could not be ousted from office, nor enjoined from letting contracts, nor, in this action, from levying a tax within the district specified. And if the act be constitutional, to the extent to which I think it to be, it is quite clear that this Court can not hold that said district has not been legally formed.

It not being clear to my mind that those provisions of the act which affect the people of the entire State are unconstitutional, I think that the judgment of the Court below should be affirmed.