Mr. Maxwell's Argument for Appellees.

of this right to a hearing by any determination of the legislature fixing in advance an arbitrary basis of apportionment, with reference to unknown future conditions, as to which the legislature could have had no knowledge upon which to base the exercise of any judgment or discretion in reaching its determination, or by clothing the assessment district in the guise of a public corporation. King's River Reclamation Dist. v. Phillips, 39 Pac. Rep. 630, 41 Pac. Rep. 335; Remsen v. Wheeler, 105 N. Y. 573; People v..Henion, 64 Hun, 471; Paulsen v. Portland, 149 U. S. 30; Stuart v. Palmer, 74 N. Y. 183; Dyar v. Farmington, 70 Maine, 515; Cypress Pond Draining Co. v. Hooper, 2 Met. (Ky.) 350; Howell v. Tacoma, 3 Wash. 711.

X. It is contended in support of the Wright Act that the hearing before the supervisors, when they are to hear the petition for the formation of the district, affords to the landowner all the opportunity for a hearing to which he is entitled upon the question of benefits, and consequently that the act does not in this respect take property without due process of law. This cannot be so, for the reason that under the provisions of the act as construed by the Supreme Court of California it is practically impossible for any facts to be established at this hearing by any objecting landowner which would give him the right or which would make it the duty of the board, upon the ground that his lands were not benefited, or upon any ground whatsoever, to exclude any lands which had been included in the boundaries of the proposed district as fixed by the petitioners in the petition for its organization.

XI. The radical changes from the Wright Act, which have been made in the irrigation district laws of Nebraska, Idaho and Oregon, which were framed in the light of experience with the practical operations of the Wright Act, strongly support our argument that the unconstitutional features of the Wright Act make it impossible for any such law to operate successfully, and show that these later statutes have sought to eliminate those unconstitutional features of the Wright Act which have given rise to its most grievous oppressions, and

Mr. Choate's Argument for Appellees.

which will work the practical destruction of any law embodying such provisions.

XII. It is a settled principle of universal law, and is the law of the land in this nation, that the right to compensation whenever private property is taken for public use, is an incident to the exercise of that power, and inseparably connected with it. Any attempt of any legislature to levy assessments on property not compensated by special benefits or in excess of such benefits, or not proportionate to benefits, for the purpose of constructing a local public improvement for the general public welfare, is therefore an excess of legislative power, and clearly a violation of the Fourteenth Amendment.

Mr. Joseph H. Choate for appellees.

The constitution of California provides by Art. 1, § 1, that acquiring, possessing and protecting property are inalienable rights; and by § 14, that "Private property shall not be taken or damaged for public use without just compensation having been first made to, or paid into court for, the owner." Our main contention is that the Wright Act is in violation of the Fourteenth Amendment of the Constitution of the United States, which provides "nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

We insist that it violates each of these clauses; and, also that, in its treatment of private property, it violates those uniform constitutional provisions for the protection of private property which are found alike in the constitution of California and those of all the other States.

I. Before coming to the special methods pursued in the Wright Act, we submit that any law of any State which sought to accomplish the objects of that act would be obnoxious to the constitutional provisions which we invoke, for that act plainly attempts to provide for the taking of private property for a private use.

In Bank of Columbia v. Okely, 4 Wheat. 235, the court say,

Mr. Choate's Argument for Appellees.

(p. 244,)" As to the words from Magna Charta incorporated into the constitution of Maryland - [No freeman ought to be deprived of his property but by the judgment of his peers or the law of the land] - after volumes spoken and written with a view to their exposition, the good sense of mankind has at length settled down to this: that they were intended to secure the individual from the arbitrary exercise of the powers of government unrestrained by the established principles of private rights and distributive justice."

Whoever, then, undertakes to take away my property must show the authority of law for doing so; not an arbitrary edict of the legislature, but a legitimate exercise of legislative power, as restrained by the established principles of private rights and distributive justice-a law of the land, which does not deny to me the equal protection of the laws.

And further, where money is sought to be taken by the State from an individual by the exercise of the power of taxation in any form, or however that power may be defined, it must be for the purpose of expenditure for a public object or use, and the test of the validity of a law enacted for that purpose must necessarily be the essential character of the direct object of the expenditure proposed. "The incidental advantage to the public, or to the State, which results from the promotion of private interests and the prosperity of private enterprises or business, does not justify their aid by the use of public money raised by taxation, or for which taxation may become necessary." Lowell v. Boston, 111 Mass. 461.

Examining the Wright Act by the light of these principles we find it to be an act to raise a fund by levy upon all the landholders of a given district, whether their lands need irrigating or not, and whether they desire to have them irrigated or not, to be expended in procuring water for the irrigation of all the lands in the district, so as to make it cheaper for those of them who do desire it than if they had to irrigate their own lands at their own individual expense.

The pecuniary relief of such of the landholders is thus the direct and immediate object of the intervention of the State

Mr. Choate's Argument for Appellees.

by the exercise of the power of taxation. This object is as strictly private as it was in any of the famous cases which have condemned similar attempts to wrest money from citizens by force of law for private use, and the resulting benefits to the public are quite as indirect and uncertain as in any of those.

In Lowell v. Boston, 111 Mass. 454, an act to loan the credit of the city of Boston to individual sufferers by the great fire, to enable them to rebuild, each on his own property, was condemned. In Loan Association v. Topeka, 20 Wall. 655, this court pronounced against an act of Kansas" to authorize cities. and counties to issue bonds for the purpose of building bridges, aiding railroads, water power or other works of internal improvement." In State v. Osawkee, 14 Kansas, 418, the Supreme Court of Kansas held an act of the legislature of that State authorizing the issue of township bonds to provide means for furnishing destitute citizens with food and with seed to be unconstitutional. The Supreme Court of Maine holds the same doctrine. Allen v. Jay, 60 Maine, 124. See also Waterloo Woolen Manufacturing Company v. Shanahan, 128 N. Y. 345; Shoemaker v. United States, 147 U. S. 282; In re Niagara Falls & Whirlpool Railroad, 108 N. Y. 375; In re Jacobs, 98 N. Y. 98; Concord Railroad v. Greely, 17 N. H. 47.

As the present case is plainly governed by the principles. laid down in these leading cases, so it is not only distinguishable, but is in its essential nature absolutely distinct from all the classes of cases where local improvements have been held to be for public use, or have been sustained as a just exercise. of the police power, or on other special and peculiar grounds. It was in reliance upon those classes of cases that the learned Supreme Court of California maintained the constitutionality of the law, while the United States Circuit Judge, adhering to the cardinal rules already laid down, declared it to be against first principles, and in direct violation of the constitutional prohibition whose protection we invoke.

We do not dispute that the legislature may by taxation or assessment provide for a local public improvement for the

Mr. Choate's Argument for Appellees.

benefit of a portion of the State; nor do we question that the legislature might, in the lawful exercise of this power, provide for the irrigation of arid lands. unproductive without irrigation. The operations of the Wright Act are, however, not limited to such unproductive lands, but include all lands, no matter how fertile or productive; and we deny that the furnishing of a fertilizer for the already productive lands of individual proprietors to make them more productive is or can be, in any possible legal sense, a public improvement; and we deny that the nine-tenths of the people of the locality who are not landholders have or can have any interest in such business, or that they can receive any benefit therefrom other than such as is, upon every principle of law, reason and common sense, strictly indirect, incidental and consequential. This is in the very nature of things. See Scuffletown Fence Company v. McAllister, 12 Bush, 312; Anderson v. Kerns Drainage Co., 14 Indiana, 199; McQuillen v. Iatton, 42 Ohio St. 202; Reeves v. Wood County, 8 Ohio St. 333; In re Niagara Falls & Whirlpool Railroad, 108 N. Y. 375.

Nor is the contention of the Supreme Court of California aided by calling the unique entity, brought into existence by this statute under the name of Irrigation District, a public corporation. If the essential thing sought to be accomplished is the taking of the property or money of one citizen for the private benefit of another, it matters not whether the agency created for the purpose be called a public or private corporation, or a commission.

A corporation armed with the power to tax for the purpose of converting private grazing or farm lands into vineyards or orchards, with or without the will of the owner, takes private property for purely private uses, by whatever name it may be called.

In Beach v. Leahy, 11 Kansas, at p. 31, Mr. Justice Brewer, speaking of school districts, lays down the principle that "The mere fact that these organizations are declared in the statute to be bodies corporate, has little weight. We look behind the name to the thing named. Its character, its rela