vision of law is that the board of supervisors shall not include within such a district "any lands which will not, in the judgment of said board, be benefited by irrigation by said system."15 As to the construction of this provision, the supreme court of California holds that it is not the duty of the supervisors "to exclude by demarkation every minute tract or parcel of land that happens to be covered by a building or other structure which unfits it for cultivation; and certainly the law could not be so construed without disregarding many of its express provisions, and at the same time rendering it practically inoperative. We construe the law to mean that the board may include within the boundaries of the district all lands which in their natural state would be benefited by irrigation, and are susceptible of irrigation by one system, regardless of the fact that buildings or other structures may have been erected here and there upon small lots, which are thereby rendered unfit for cultivation at the same time that their value for other purposes may have been greatly enhanced. So construed, we can see no objection to the law upon constitutional grounds or grounds of expediency. As to owners of such property, it seems reasonable to assume that they must participate, indirectly at least, in any benefits the district may derive from the successful inauguration of a system of irrigation; but aside from this, the law contains an express provision designed to secure to them a benefit exactly corresponding to any burden to which they may be subjected, and in that respect is far more equitable than many of the assessment laws which have been upheld here and elsewhere. The provision referred to is this: Every tax payer of the district receives a portion of all the water distributed exactly equivalent to his proportion of the total

15 St. Cal. 1887, p. 30, § 2.

tax levied, and this water is his to use or to sell, as he may elect; so that if his lot is not fit for cultivation, he nevertheless gets a full equivalent for the tax assessed to him."16 Fortified by this reasoning, the court felt justified in holding that a city or town, or a portion thereof, may, in a proper case, in the discretion of the board of supervisors, be included in an irrigation district. In the case at bar, it appeared that the district contained about 108,000 acces of land, including the city of Modesto, a town covering about 2,000 acres and having about 3,000 inhabitants and about 600 dwelling-houses, besides shops, etc. On this branch of the case it was remarked: "One propositon of the appellant seems to be that the mere fact of the corporate existence of a town or city, though situate in the midst of a district susceptible of irrigation by one system, necessarily deprives the board of supervisors of the county of the power to include any of the lands within the corporate limits of such city or town in an irrigation district. We say this seems to be a proposition of the appellant, because, although it is not expressly stated in terms, it appears to be necessary to sustain his contention; for, if it lies within the discretion of the board to include in an irrigation district any part of the lands of a town or city upon the ground that in their judgment such part will be benefited by irrigation under the system proposed, and if the judgment of the board upon the question of benefits is conclusive of the fact, as we shall show that it is,-there is no ground upon which a court can say that an order including all the lands of a city or town in such district is void. The idea of a city or town is, of course, associated with the existence of streets, to a greater or less extent lined with shops and stores, as well as of dwelling-houses, but it is also a noto

16 St. Cal. 1887, p. 34, § 11.

rious fact that in many of the towns and cities of California there are gardens and orchards inside the corporate boundaries requiring irrigation. It is equally notorious that in many districts lying outside of the corporate limits of any city or town there are not only roads and highways, but dwelling-houses, outhouses, warehouses, and shops. With respect to these things, which determine the usefulness of irrigation, there is only a difference of degree be tween town and county. The advantages of irrigation to a town like Riverside, in San Bernardino county, for instance, no one could deny; and the difference between such a town and these places where irrigation would be as manifestly out of place are not marked by any hard and fast line which would enable a court to lay down a rule of discrimination. The question whether in any particular case a town will, as a whole, be benefited directly by the application of water for irrigation, is in its nature, and under existing conditions must remain, a question of fact to be decided by that tribunal to whose discretion it had been committed by the legislature."17 We therefore learn further, from this case, that upon the question of fact as to what lands will or will not be benefited by irrigation, the decision of the board of supervisors is conclusive.

A statute of California supplementary to the Wright act provides that if there be any outstanding bonds, no order of exclusion of part of the district can be made without the consent of the bondholders.18 In a case where there was an understanding between the bidders and the directors that the former were not to be held to their offer unless they could effect a sale of the bonds, and the bonds were never issued or paid for, and prior to the order of exclusion

"Board of Directors of Modesto Irr. Dist. v. Tregea, 88 Cal. 334, 26 Pac. Rep. 237.

18 St. Cal. 1889, p. 23, § 6.

the bidders had been released from their offer, it was held that the decree of validity of the order of exclusion rendered by the lower court was proper.19

§ 207. Levy of assessments.

Upon a comparison of the various provisions of the Wright act, the courts have reached the conclusion that an assessment of taxes cannot be levied by the directors of an irrigation district-even for the payment of current expenses and wages and salaries-without a previous authorization by a vote of the electors of the district. And whereas it is provided that the directors may call an election for the purpose of submitting the question of such assessment "when in their judgment it may be advisable," this merely means that if, in their judgment, an assessment is advisable, they shall call an election. In other words, their judgment is to be directed to the advisability of levying an assessment, not to the advisability of calling an election, as to which they have no discretion.20

§ 208. Proceedings for confirmation of bonds.

Since the validity of the bonds of an irrigation district, when issued, depends upon the regularity of the proceedings of the board of directors, and upon the ratification of the proposition by a majority of the electors, it soon became evident that investors were unwilling to take such bonds at their par value, while all the facts affecting their validity remained open to question and dispute. To meet this inconvenience,-for the security of investors, and to enable the irrigation districts to dispose of their bonds on advantageous terms,-the legislature of California, in 1889,

19 Board of Directors of Modesto Irr. Dist. v. Tregea, 88 Cal. 334, 26 Pac. Rep. 237.

20 Tregea v. Owens, 94 Cal. 317, 29 Pac. Rep. 643.

passed an act supplementary to the Wright law, by which it is provided that the board of directors of any irrigation district may "commence a special proceeding in and by which the proceedings of said board and of said district providing for and authorizing the issue and sale of the bonds of said district, whether said bonds or any of them have or have not been sold, may be judicially examined, approved, and confirmed."21 It was at first contended that confirmation proceedings, under this act, could not be commenced until the bonds had actually been issued. But the supreme court held that the board of directors might institute such proceedings as soon as any resolution for the issue and sale of bonds had been adopted by them.22 The statute provides that the court shall direct publication of a notice of the filing of the petition in the same manner and for the same length of time as is provided for a notice of special election, stating the time and place for the hearing of the petition, and that any person interested in the organization may on or before the day of the hearing demur to or answer said petition. And it is held that this notice is sufficient to confer jurisdiction upon the court.23 The notice is sufficient in itself if it states the substance of the prayer in the petition.24 And the prayer of the petition is sufficient if it prays for the examination, approval, and confirmation of the proceedings "aforesaid" for the issue and sale of bonds of the district.25 And an order of confirmation entered in such proceedings is conclusive, as to a proper compliance with all the provisions of the Wright act, on a land-owner of the district who did not appear at the confirmation proceedings, but who seeks to

21 St. Cal. 1889, p. 212.

22 Board of Directors of Modesto Irr. Dist. v. Tregea, 88 Cal. 334, 26 Pac. Rep. 237.

23 Id.

24 Id.

Id.