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private advantage an exercise of the taxing power of the state is, in my judgment, simply a misnomer. Nor is such an exercise of power any more justifiable, if it is to be derived merely from the nature of the legislative authority, than would be an enactment commanding A. and B. to farm their several lands at their joint expense; and yet no one will pretend that this can be done. Under a constitution that guaranties the inviolability of private property, and limits the lawmaking power to the function of legislation, it appears to me entirely inadmissible to claim that it is a legitimate use of the pre rogative to legislate, to enact a law such as the present one, requiring a few landowners to improve their lands for their own profit and at their own expense. I regard it as a clear infringement of the constitution to take, by force of a statute, the money of a person from him, even though such money should, against his will, be used for his private benefit, in the improvement of is land. Such an act has nothing in common, with respect to legal principles, with the condemnation of property for the uses of the community, and to the charging, to a limited extent, of the costs of such improvement upon the landowner's specially benefited. I cannot assent to the hypothesis that this law can rest on the state's right to tax, or on its eminent domain.”

Like the case last cited, the scope of the legislation under consideration is not limited to cases where the territory designed to be supplied with water for irrigation is so extensive as to assume the importance of a public undertaking, and where, when provided, the water is available to every person within the district upon the same terms and conditions, but it embraces every case where a tract of country, be it large or small, is susceptible of one mode of irrigation from a common source and by the same system of works, and a majority of the holders of title or evidence of title thereto petition for the organization of an irrigation district, and two-thirds of the qualified voters within the boundaries of the district as established by the board of supervisors vote in favor of it. A half-dozen persons, as well as as many hundred, may constitute a majority of the holders of title or evidence of title to the lands falling within the designation of the statute, and the water to be secured by the means provided for, so far from being available to every person within the district, upon the same terms and conditions, is limited to the use of specific individuals, namely, the landowners of the district.

Another fatal objection to the maintenance of the legislation here in question, under the right of eminent domain, is that, if it be regarded as undertaken by the public primarily as a matter of public concern, the assessment upon the landowners must be limited to benefits imparted, which is not the case with this statute. Wurts v. Hoagland, 114 U. S. 613, 5 Sup. Ct. 1086; Tide-Water Co. v. Coster, 18 N. J. Eq. 527. It does not seem to me to admit of doubt that, if the act in question can be maintained at all, it must be under the power of assessment for local improvements, or, as expressed by the supreme court in Wurts v. Hoagland, supra: "The power of the legislature to establish regulations by which adjoining lands, held by various owners in severalty, and in the improvement of which all have a common interest, but which, by reason of the peculiar natural condition of the whole tract, cannot be improved or enjoyed by any of them without the concurrence of all, may be reclaimed and made useful to all at their joint expense.”

But no more than any other can that power be exercised without "due process of law.” Not only does the legislation in question provide for the assessing and selling, and thus for the taking, of private

, property, in order to supply water for irrigation to specific persons within the district, and to those only, but all of this is authorized to be done without affording the owner any opportunity to be heard in opposition to the validity of the proceedings. As has been seen, the act provides, as a condition precedent to the organization of the district, the presentation to the board of supervisors of the county in which the lands or the greater portion thereof are situated, at a regular meeting of such board, of a petition signed by 50 or a majority of the holders of title or evidence of title to lands susceptible of one mode of irrigation, from a common source and by the same system of works, as shown by the equalized county assessment roll next preceding the presentation of the petition, which petition shall specifically describe the proposed boundaries of the district and ask that it be organized under the provisions of the act. The supreme court of California said, in the Madera Irr. Case, 92 Cal. 323, 28 Pac. 272, 675, in answer to the present objection to the act, that the proceeding for the organization of the district, “Does not affect the property of anyone within the district, and that he is not, by virtue thereof, deprived of any property. Such result does not arise until after the delinquency on his part in the payment of an assessment that may be levied upon his property, and before that time he has opportunity to be heard as to the correctness of the valuation which is placed upon his property, and made the basis of his assessment. He does not, it is true, have any opportunity to be heard otherwise than by his vote in determining the amount of bonds to be issued, or the rate of assessment with which they are to be paid; but in this particular he is in the same condition as is the inhabitant of any municipal organization which incurs a bonded indebtedness or levies a tax for its payment. His property is not taken from him without due process of law, if he is allowed a hearing at any time before the lien of the assessment thereon becomes final."

A hearing as to what? The only hearing provided for by the statute is as to the correctness of the valuation put by the assessor upon the property assessed. Nor can I at all agree that the proceeding for the organization of the district “does not affect the property of any one within the district.” The petition for the organization of the district was the foundation of the whole proceeding, just as the petition for the opening of Montgomery avenue, in San Francisco, lay at the foundation of the proceedings involved in Mulligan v. Smith, 59 Cal. 206, the ruling in which case was approved by the supreme court of the United States in Zeigler v. Hopkins, 117 U. S. 687, 688, 6 Sup. Ct. 919. Without the required petition, no step could be taken looking to the organization of the district here in question. It was jurisdictional in the strictest sense. Two weeks' notice of the time of presentation of the petition is required to be given by publication. When presented, the statute declares the board of supervisors“Shall hear the same, and may adjourn such hearing from time to time, not exceeding four weeks in all, and, on the final hearing, may make such changes in the proposed 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 other

v.68F.no.9461

lands in said proposed district, nor shall any of the lands which will not, in the judgment of said board, be benefited by irrigation by said system, be included within such district; provided, that any person whose lands are susceptible of irrigation from the same source may, in the discretion of the board, upon application in writing to said board, have such lands included in such district." Laws 1887, p. 30.

Notwithstanding the fact that the petition is by the statute made the basis of the proceeding which is to culminate in divesting the title of the owner of land against his consent, there is here not only no opportunity afforded such owner to test the sufficiency of the petition, but the power of the board of supervisors is in terms limited to making such changes in the boundaries proposed by the petitioners as it may deem proper, subject to the condition that it shall not except from the operation of the act any territory within the boundaries proposed by the petitioners which is susceptible of irrigation by the same system of works applicable to the other lands in said proposed district, nor include within the boundaries, which it is required to establish and define within four weeks after the presentation of the petitioner, any lands, which, in its judgment, will not be benefited by irrigation by the same system of works. Every one must admit that in the matter in question the board of supervisors has only such power as is expressly or by necessary implication conferred upon it by the statute itself. Not only is it not thereby given the power to inquire into the sufficiency of the petition, but the express statutory requirements preclude any such inquiry by it, at the instance of any owner of land adversely affected, or at all. Yet the petition may not have been signed by the required number of holders of title or evidence of title to lands within the district, and, if not, there was no basis upon which the proceedings could rest. Whatever construction might otherwise be placed upon the word "hear,” used in the statute, it cannot be held to include the power to determine the entire merits of the petition, in view of the affirmative requirement contained in the same sentence that on its final hearing the board “shall establish and define such boundaries."

The board is of necessity required to determine for itself whether the petition upon its face is sufficient to put its powers in motion; yet its determination in that respect is not conclusive upon any one. As said by Judge Bronson, in speaking of a similar petition, in Sharp v. Speir, 4 Hill, 88:

“They could not make the occasion by resolving that it existed. They had power to proceed if a majority petitioned, but without such a petition they had no authority whatever. They could not create the power by resolving that they had it.”

The statute does not require or authorize the board of supervisors to hear any contest in respect to the truth of the allegations of the petition, further than is implied by the provision that it may make such changes in the proposed boundaries as it may deem proper. IIad it been impowered to entertain a contest, for example, by a landowner in respect to the question whether those signing the peti. tion were, in truth, the holders of title or the evidence of title to lands susceptible of one mode of irrigation, from a common source and by the same system of works, and it should find in favor of the contestant upon that issue, it would necessarily be obliged to deny the petition and dismiss the proceedings. Yet, so far from that course being allowed by the statute, it provides, as has been seen, that the board of supervisors shall hear the petition, and may adjourn such hearing from time to time, not exceeding four weeks in all, and, in express terms, declares that on the final hearing of such petition it may make such changes in the proposed boundaries as it may find to be proper, and shall establish and define such boundaries. After the board of supervisors shall have so established and defined the boundaries of the proposed district, and shall have divided it into divisions, the board is, by the statute, required to 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 the act. The notice is required to describe the boundaries so established, and to designate a name for such proposed district. In the event two-thirds of the votes cast at such election are in the affirmative, the board of supervisors is by the statute required to declare, by an order entered on its minutes, such territory duly organized as an irrigation district under the name and style theretofore designated, and to declare the persons receiving respectively the highest number of votes for the several offices to be duly elected thereto, and to cause a certified copy of such order to be immediately filed for record in the office of the county recorder of each county in which any portion of such land is situated, and to 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 the statute declares that, 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 according to law, and shall hold their respective offices until their successors are elected and qualified. The organization of the district is thus completed, according to the statute, without at any time or place affording the owner of any land within the boundaries of the district the opportunity to question or contest the sufficiency of the petition which lay at the very foundation of the whole proceedings. After the organization of the district has been so completed, its subsequent management and control are, by the statute, placed in the hands of the officers of the district, whose assessor is required to annually assess all the lands within the district to pay the costs of the irrigation works, the salaries of its officers, etc., and the principal and interest of such bonds of the district as may have been authorized to be issued, and which, by the statute, are made a lien upon all of the lands within the district. The assessments so made are, by the statute, required to be equalized by the board of directors of the district, sitting as a board of equalization, notice of which is required to be given by publication, which board is required to meet at the time designated in the notice, and to continue in session from day to day as long as may be necessary, not to exceed 10 days, exclusive of Sundays, to hear and determinė such objections to the valuation and assessment as may come before them. The board of directors, sitting as a board of equalization, is given the power to change the valuation as may be just, and its secretary is required to note all changes made in the valuation of the property assessed, and in the names of the persons whose property is assessed. The board of directors is then required to levy an assessment sufficient to raise the required amount of money, which is made a lien upon the property assessed, and, in the event of delinquency, the property is directed to be sold by the collector of the district to pay the assessment, and, if not redeemed within 12 months from sale, the collector, or his successor in office, is required to execute a deed to the purchaser, the consequences attaching to which deed have already been stated. From first to last, at no time or place is the owner of land within the district given the opportunity to be heard in respect to the essential and all-important question whether the petition upon which all of the proceedings rest, and under which his property is to be assessed, sold, and conveyed, conforms to the requirement of the statute,—whether it was, in fact, signed by 50 or a majority of the holders of title or evidence of title to lands within the district, as shown by the last equalized assessment roll immediately preceding the presentation of the petition. Without such a petition, as has been said, no step could be taken looking to the organization of the district (Mulligan v. Smith, 59 Cal. 206; Zeigler v. Hopkins, 117 U. S. 688, 6 Sup. Ct. 919); and, of course, without a legally organized district, there can be no such thing as an assessment. To say, therefore, as did the supreme court of California in the Madera Irr. Case, that the landowner "has opportunity to be heard as to the correctness of the valuation which is placed upon his property and made the basis of his assessment,” does not at all answer the objection. That hearing, as stated by that court, was limited to the question of the correctness of the valuation placed by the assessor upon the assessed property. It did not, and could not, under the terms and provisions of the statute, reach the vital question of the sufficiency of the petition. With that the directors of the district, sitting as a board of equalization, had nothing whatever to do. So that, under the provisions of the statute in question, the land of an individual may be assessed and sold, and, according to the averments of the bill, will, unless the court intervenes, be conveyed, and thus taken, without affording its owner any opportunity whatever to question the sufficiency of the petition upon which the whole proceedings are based. That this would be to deprive such owner of his property without due process of law would seem to be very clear. In judging what is "due

process of law,” said the supreme court of the United States, in Hagar v. Reclamation Dist., 111 U. S. 708, 4 Sup. Ct. 663:

"Respect must be had to the cause and object of the taking, whether under the taxing power, the power of eminent domain, or the power of assessment for local improvements, or some of these; and, if found to be suitable or admissible in the special case, it will be adjudged to be 'due process of law'; but, if found to be arbitrary, oppressive, and unjust, it may be declared to be not 'due process of law.'"

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