Fallbrook Irrigation Dist v. Bradley
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This is an appeal from the United States circuit court for the Southern district of California. The case is reported in 68 Fed. 948. The action was commenced in that court by defendants in error (the plaintiffs below) for the purpose of procuring an injunction restraining defendant Tomlins. the collector of the irrigation district, from giving a deed to it of the premises belonging to plaintiff Mrs. Bradley, based on a sale of her land made by the collector for the nonpayment of a certain assessment upon such lands under the act incorporating the irrigation district, and to set aside such assessment, and for other relief.

The following among other facts were set up in the plaintiffs' second amended bill in equity: The plaintiffs are aliens and subjects of Great Britain, residing in San Diego county, Cal. The irrigation district is a corporation organized pursuant to the laws of California, and doing business at Fallbrook, San Diego county. Matthew Tomlins was the collector of the corporation at the time of the commencement of the suit, and it has been doing business as, and claims to be, a corporation, under 'An act providing for the organization and government of irrigation districts, and to provide for the acquisition of water and other property, and for the distribution of water thereby for irrigation purposes,' approved March 7, 1887, as such acts have been amended by the acts of 1889 and 1891.

[Statement of case from Page 115 intentionally omitted]

The material sections of the act, as amended by the other acts just stated, are set forth in the margin herein. 

The legislature also passed two acts, approved February 16, 1889, called, respectively, the 'Inclusion' and the 'Exclusion' Act, by which means were provided, in the first-named act, for including lands within an irrigation district which had not been included in the petition when first presented to the board of supervisors; and, in the second-named act, for excluding from a district already formed some portion of the land which then formed part of such district. An examination of those acts does not become material in this case.

The plaintiff Mrs. Bradley is the owner of certain real estate described in complainants' bill, which is included within the lines of the irrigation district. The bill sets forth the various steps taken under the irrigation act for the purpose of forming the irrigation district, and it alleges the taking of all steps necessary therefor, including the election of officers as provided in the act; that the board of directors submitted to the electors the question whether a special assessment for $6,000 should be made for the purpose of defraying the expenses of organization, and that the electors approved of such assessment, and the proper proceedings were thereafter taken by which to assess the property owners; and that plaintiff Mrs. Bradley's assessment amounted to $51.31, which she refused to pay because the act was, as alleged, unconstitutional and void.

The bill further states that the collector then proceeded to enforce the collection by a sale of the land, and did sell it to the irrigation district, but that no deed has been given to the district by the collector; and an injunction is asked to restrain the execution and delivery of any deed by such collector, because of the alleged invalidity of the act under which the proceedings were taken.

The bill also alleged a proposed issue of bonds to the amount of $400,000, subject to the decision of the electors at an election proposed to be held under the provisions of the act.

Various reasons are set out in the bill, upon which are based the allegation of the invalidity of the act, among which it is stated that the law violates the federal constitution, in that it amounts to the taking of the plaintiff's property without due process of law. It is also stated that the act is in violation of the state constitution in many different particulars, which are therein set forth.

The bill also asks that the assessment may be set aside, and all the proceedings declared void, on the ground of the invalidity of the act itself.

The defendants demurred to the first bill of the complainants, and the demurrer was overruled. The complainants were granted leave to serve a second amended bill, to which the defendants put in an answer, denying many of the material allegations of the bill, and claiming the entire validity of the act.

The case came on for hearing before the circuit judge, by consent, upon the second amended bill of complainants, and defendants' answer thereto, and the court gave judgment against the defendants, because of the unconstitutionality of the irrigation act; it being, as held, in violation of the federal constitution, as the effect of such legislation by the state was to deprive complainants of their property without due process of law. The decision of the circuit judge was given for the reasons stated by him in his opinion rendered upon the argument of the demurrer to the bill of complainants, and some of the facts stated in the bill and admitted by the demurrer were denied in the answer subsequently served by the defendants. The sole ground of the decision was, however, the unconstitutionality of the act, as above stated. From the judgment entered upon the decision of the circuit judge the irrigation district appealed directly to this court, by virtue of the provisions of section 5 of chapter 517 of the Laws of 1891 (26 Stat. 826), which gave an appeal from the circuit court direct to the supreme court 'in any case that involves the construction or application of the constitution of the United States,' and also 'in any case in which the constitution or law of a state is claimed to be in contravention to the constitution of the United States.'

A. L. Rhodes, Benjamin Harrison, for appellants.

Geo. H. Maxwell, for appellees.

[Argument of Counsel from pages 125-130 intentionally omitted]

Joseph H. Choate

[Argument of Counsel from Pages 131-151 intentionally omitted]

John F. Dillon

Mr. Justice PECKHAM, after stating the facts in the foregoing language, delivered the opinion of the court. 

Notes

'Section 1. Whenever fifty, 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 an irrigation district, under the provisions of this act, and when so organized such district shall have the powers conferred, or that may hereafter be conferred, by law upon such irrigation districts. The equalized county assessment roll next preceding the presentation of a petition for the organization of an irrigation district, under the provisions of this act, shall be sufficient evidence of title for the furposes of this act.

'Sec. 2. A petition shall first be presented to of title for the purposes of this act. the land, 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 such 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 in cluded 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 of the owner to said board, have such

lands included in said district. Said board shall also make an order dividing said district into five divisions, as nearly equal in size as may be practicable, which shall be numbered 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 five directors, as said board may order, for such district, and that they may be elected by the district at large. 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 not the same shall be organized under the provisions of this act. Such 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 hereinafter 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.

'Sec. 3. Such election shall be conducted as nearly as practicable in accordance with the general laws of this state: provided, that no particular form of ballot shall be required. The said board of supervisors shall meet on the second Monday next succeeding such election, and proceed to canvass the votes cast thereat, and if upon such canvass it appear that at least twothirds of all the votes cast are 'Irrigation District-Yes,' the said board 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 such several offices to be duly elected to such offices. And no action shall be commenced or maintained, or defense made, affecting the validity of the organization, unless the same shall have been commenced or made within two years after the making and entering of said order. Said board shall cause a copy of such order, duly certified, to be immediately filed for record in the office of the county recorder of each

county in which any portion of such lands are situated, and must also immediately forward a copy thereof to the clerk of the board of supervisors of each of the counties in which any portion of the district may lie; and no board of supervisors of any county, including any portion of such district, shall, after the date of the organization of such district, allow another district to be formed including any of the lands in such district, without the consent of the board of directors thereof; and from and after the 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 in accordance with law, and shall hold such offices respectively until their successors are elected and qualified. For the purposes of the election above provided for, the said board of supervisors must establish a convenient number of election precincts in said proposed district, and define the boundaries thereof, which said precincts may thereafter be changed by the board of directors of such district. In any district the board of directors thereof may, upon the presentation of a petition therefor, by a majority of the holders of title or evidence of title of said district, evidenced as above provided, order that on and after the next ensuing general election for the district there shall be either three or five directors, as said board may order, and that they shall be elected by the district at large, or by divisions, as so petitioned and ordered; and after such order such directors shall be so elected.'

Sections 4 to 10, inclusive, provide for the election of officers of the company and for their giving bonds, and are not material here.

'Sec. 11. On the first Tuesday in March next following their election, the board of directors shall meet and organize as a board, elect a president from their number and appoint a secretary, who shall each hold office during the pleasure of the board. The board shall have the power, and it shall be their duty to manage and conduct the business and affairs of the district; make and execute all necessary contracts; employ and appoint such agents, officers and employees as may be required, and prescribe their duties; establish equitable by-laws, rules and regulations for the distribution and use of water among the owners of said lands, and generally to perform all such acts as shall be necessary to fully carry out the purposes of this act. The said by-laws, rules and regulations must be printed in convenient form for distribution in the district. And it is hereby expressly provided that all waters distributed for irrigation purposes shall be apportioned ratably to each land owner upon the basis of the ratio which the last assessment of such owner for district purposes within said district bears to the whold sum assessed upon the district: provided, that any land owner may assign the right to the whole or any portion of the waters so apportioned to him.

'Sec. 12. The board of directors shall hold a regular monthly meeting in their office on the first Tuesday in every month, and such special meetings as may be required for the proper transaction of business: provided, that all special meetings must be ordered by a majority of the board. The order must be entered of record, and five days' notice thereof must, by the secretary, be given to each member not joining in the order. The order must specify the business to be transacted, and none other than that specified must be transacted at such special meeting. All meetings of the board must be public, and three members shall constitute a quorum for the transaction of business; but on all questions requiring a vote there shall be a concurrence of at least three members of said board. All records of the board shall be open to the inspection of any elector during business hours. The board and its agents and employees shall have the right to enter upon any land to make surveys, and may locate the necessary irrigation works and the line for any canal or canals, and the necessary branches for the same, on any lands which may be deemed best for such location. Said board shall also have the right to acquire, either by purchase or condemnation or other legal means, all lands and waters and water rights, and other property necessary for the construction, use, supply, maintenance, repair and improvements of said canal or canals and works, including canals and works constructed and being constructed by private owners, lands for reservoirs for the storage of needful waters, and all necessary appurtenances. In case of purchase, the bonds of the district hereinafter provided for may be used at their par value in payment; and in case of condemnation the board shall proceed, in the name of the district, under the provisions of title seven of part three of the Code of Civil Procedure. Said board may also construct the necessary dams, reservoirs and works for the collection of water for said district, and do any and every lawful act necessary to be done that sufficient water may be furnished to each land owner in said district for irrigation purposes. The use of all water required for the irrigation of the lands of any district formed under the provisions of this act, together with the rights of way for canals and ditches, sites for reservoirs, and all other property required in fully carrying out the provisions of this act, is hereby declared to be a public use, subject to the regulation and control of the state, in the manner prescribed by law.'

Sections 13 and 14 are not material.

'Sec. 15. For the purpose of constructing necessary irrigating canals and works, and acquiring the necessary property and rights therefor, and otherwise carrying out the provisions of this act, the board of directors of any such district must, as soon after such district has been organized as may be practicable, and whenever thereafter the construction fund has

been exhausted by expenditures herein authorized therefrom, and the board deem it necessary or expedient to raise additional money for said purposes, estimate and determine the amount of money necessary to be raised, and shall immediately thereafter call a special election, at which shall be submitted to the electors of such district possessing the qualifications prescribed by this act, the question whether or not the bonds of said district in the amount as determined shall be issued. Notice of such election must be given by posting notices in three public places in each election precinct in said district for at least twenty days, and also by publication of such notice in some newspaper published in the county where the office of the board of directors of such district is required to be kept, once a week for at least three successive weeks. Such notices must specify the time of holding the election, the amount of bonds proposed to be issued; and said election must be held, and the result thereof determined and declared in all respects as nearly as practicable in conformity with the provisions of this act governing the election of officers: provided, that no informalities in conducting such an election shall invalidate the same, if the election shall have been otherwise fairly conducted. At such election the ballots shall contain the words 'Bonds-Yes,' or 'Bonds-No.' or words equivalent thereto. If a majority of the votes cast are 'Bonds Yes,' the board of directors shall cause bonds in said amount to be issued; if a majority of the votes cast at any bond election are 'Bonds-No,' the result of such election shall be so declared, and entered of record. And whenever thereafter said board in its judgment deems it for the best interest of the district that the question of issuance of bonds in said amount, or any amount, shall be submitted to said electors, it shall so declare of record in its minutes, and may thereupon submit such questions to said electors in the same manner and with like effect as at such previous election. * * *'

The remainder of the section provides for the maturing and payment of the bonds, and is not material.

Section 16 is not material.

'Sec. 17. Said bonds and the interest thereon shall be paid by revenue derived from an annual assessment upon the real property of the district; and all the real property in the district shall be and remain liable to be assessed for such payments, as hereinafter provided.

'Sec. 18. The assessor must, between the first Monday in March and the first Monday in June, in each year, assess all the real property in the district to the persons who own, claim, or have the possession or control thereof, at its full cash value. He must prepare an assessment book, with appropriate headings, in which must be listed all such property within the district, in which must be specified, in separate columns, under the appropriate head:

'First. The name of the person to whom the property is assessed. If

the name is not known to the assessor, the property shall be assessed to Unknown owners.

'Second. Land by township, range, section or fractional section, and when such land is not a congressional division or subdivision, by metes and bounds, or other description sufficient to identify it, giving an estimate of the number of acres, locality and the improvements thereon.

'Third. City and town lots, naming the city or town, and the number and block, according to the system of numbering in such city or town, and the improvements thereon.

'Fourth. The cash value of real estate other than city or town lots.

'Fifth. The cash value of improvements on such real estate.

'Sixth. The cash value of city and town lots.

'Seventh. The cash value of improvements on city and town lots.

'Eighth. The cash value of improvements on real estate assessed to persons other than the owners of the real estate.

'Ninth. The total value of all property assessed.

'Tenth. The total value of all property after equalization by the board of directors.

'Eleventh. Such other things as the board of directors may require.

'Any property which may have escaped the payment of any assessment for any year shall, in addition to the assessment for the then current year, be assessed for such year with the same effect and with the same penalties as are provided for such current year.'

Section 19 is not material.

'Sec. 20. On or before the first Monday in August in each year, the assessor must complete his assessment book and deliver it to the secretary of the board, who must immediately give notice thereof, and of the time the board of directors, acting as a board of equalization, will meet to equalize assessments, by publication in a newspaper published in each of the counties comprising the district. The time fixed for the meeting shall not be less than twenty nor more than thirty days from the first publication of the notice, and in the meantime the assessment book must remain in the office of the secretary for the inspection of all persons interested.

'Sec. 21. Upon the day specified in the notice required by the preceding section for the meeting, the board of directors, which is hereby constituted a board of equalization 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 of 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.

'Sec. 22. 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 be called the 'Bond Fund of -Irrigation District.' In case of the neglect or refusal of the board of directors to cause such assessment and levy to be made as in this act provided, then the assessment of property made by the county assessor and the state board of equalization shall be adopted, and shall be the basis of assessments for the district, and the board of supervisors for the county in which the office of the board of directors is situated shall cause an assessment roll for said district to be prepared, and shall make the levy required by this act, in the same manner and with the like effect as if the same had been made by said board of directors, and all expenses incident thereto shall be borne by such district. In case of the neglect or refusal of the collector or treasurer of the district to perform the duties imposed by 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 bond as in other cases.

'Sec. 23. The assessment upon real property is a lien against the property assessed from and after the first Monday in March for any year, and the lien for the bonds of any issue shall be a preferred lien to that for any subsequent issue, and such lien is not removed until the assessments are paid or the property sold for the payment thereof.'

Sections 24 to 30, inclusive, provide for collecting the assessments and for the sale of the lands of those not paying, the giving of deeds upon such sale, and for the redemption of the lands so sold and for the character of the deed as to its being prima facie evidence, and in some cases conclusive evidence of the regularity of the proceedings; and such sections, and the remainder of the act, are not material to the present inquiry.
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