134 F. 953 | U.S. Circuit Court for the District of Northern California | 1905
(after stating the facts). The reclamation of' swamp lands is a public work, control over which is vested in the Legislature of the state. Hagar v. Supervisors, 47 Cal. 222; In re Madera Irrigation District, 92 Cal. 313, 28 Pac. 272, 675, 14 L. R. A. 755, 27 Am. St. Rep. 106. The Legislature has delegated to the boards, of supervisors of the various counties power to create and to divide reclamation districts for the purpose of promoting such reclamation. The procedure is prescribed by the Political Code of the state of California. Williams v. Supervisors, 65 Cal. 160, 3 Pac. 667; People v. Levee Dist. No. 6, 131 Cal. 30, 63 Pac. 676; Pol. Code Cal. §§ 3446 to 3493½.
The method of forming reclamation districts is begun by petition of the landowners, and notice, followed by a hearing by the board of supervisors, and finding. The management of the districts when formed is in boards of trustees, public agencies, with general supervision in the boards of supervisors. Where lands have not been reclaimed, the boards of supervisors have power to divide the district. The landowners themselves in certain instances may form a district (section 3472). without trustees and without any by-laws. Such a district respondent seeks to establish. His petition filed with the board of supervisors contained all that the law required it should contain. Due notice of the hearing of such petition was given-. By the law the board of supervisors acquired jurisdiction to act upon- respondent’s petition.
Complainants contend that the board of supervisors have no jurisdiction because the lands are reclaimed, and that on this account there-is no power to consider or grant respondent’s petition. Defendants, deny that the lands are reclaimed. To hold that the lands are reclaimed would be to pass upon the disputed facts of the case. It would not be proper at this time. It would, in effect, be to control the action of the board of supervisors by injunction-. It does- not appear that the board; is about to act beyond the scope of its lawful powers. The doctrine which seems to me to be applicable has been- well, expressed by JudgeDeady in the following language:
“Tlie authorities are not uniform on the question of- the power of a court of equity to restrain a municipal corporation in the exercise of its legislative functions. The more modem, and I think the better, doctrine is that the-*958 court ought not to Interfere by Injunction with legislative action of a municipal corporation, unless the proposed legislation is beyond the scope of the corporate powers; and its passage would, under the circumstances, work irreparable injury. After the passage of such an ordinance, its enforcement, if attended with such injury, may be enjoined. Murphy v. East Portland (C. C.) 42 Fed. 310; Alpers v. City and County of San Francisco (C. C.) 32 Fed. 503.”
The case, in its present state, is one where, power to act having been delegated to the board of supervisors, the wisdom or need for the exercise of power one way or another are questions which rest primarily within the appropriate jurisdiction of such board, and ought not to be decided in advance by the court. It is the duty of the board alone to ascertain the fact whether the land is or is not reclaimed, and thereafter to exercise a judgment and discretion as may be proper and expedient. But as said, the ascertainment of the fact rests with the board, and does not affect their jurisdiction. People v. Hagar, 66 Cal. 59, 4 Pac. 951; Board of Directors v. Tregea, 88 Cal. 335, 26 Pac. 237. The supervisors deny that they have agreed to find in favor of Glide, petitioner before the board. They have not yet acted, and the presumption is that they will do their duty.
Under my view of the case as it is presented to me, it is not necessary to decide the question whether, if the division of the district is made, it will impair the obligation of a contract between the state and the complainants, and affect the property rights of the complainants in the lands which might be set apart. The duty of considering and acting being upon the board, the possible consequences of one course of action cannot be set up as the basis of equity interposition before the board has acted at all. McChord v. Louisville, 183 U. S. 495, 22 Sup. Ct. 165, 46 L. Ed. 289. Whether, after the board has acted, the execution of its acts can be restrained, is a question not necessarily calling for adjudication at this time.
Reserving any opinion upon the important questions which may hereafter arise, these suggestions occur to me: Did not the complainants take their land subject to the power of the state to promote its reclamation as the lawmaking power might regard as best to carry out such reclamation? Are not complainants’ rights in subordination to the paramount title in and right of the state to make reclamation of the land? Is not the state under a duty to the government of the United States to perform this obligation ?' Are not the levees property of the state, subject to use for purposes of reclamation as may seem best to the legislative power, or to the board to which the Legislature has delegated power? There seems to be force in the reasoning which leads to affirmative answers to these questions, provided that the use of the levees is always for reclamation purposes. If there were a diversion of such property to another purpose than reclamation, other questions would be raised, and doubtless injunction would lie to prevent diversion from the trust to which the property can only be lawfully applied; or it may be that if, after the division of a district, the execution of the act will work great and irreparable injury to the lands of the older districts, such as overflowing, injunction will lie.
But as the record does not make a case now justifying injunction, it is ordered that the petition of the complainants be denied.
