Law Lib. KF 5615 ^' COMPILATION I OF THE IRRIGATION DISTRICT LAWS OF THE SEVENTEEN WESTERN STATES OF THE UNITED STATES JANUARY 1, 1920 WATER RESOURCES CEN ;lr archives LOS ANGELES COLLECTION WAR 1978 B UNIVERSITY OF CALIFORNIA LOS ANGELES 66th CONGRESS \ HOUSE COMMITTEE / COMMITTEE 2d SESSION j ON IRRIGATION OF ARID LANDS \ PRINT By WILL R. KING Chief Counsel, U. S. Reclamation Service, and formerly Associate Justice of the Oregon Supreme Court and E. W. BURR District Counsel, U. S. Reclamation Service, in charge of Relations with Irrigation Districts December 20, 1918 WITH ADDENDA OUTLINING CHANGES MADE IN THE X919 SESSION LAWS Printed for use of the House Committee on Irrigation of Arid Lands WASHINGTON GOVERNMENT PRINTING OFFICE 1920 Rf r ,'• r HANDBOOK OF THE IRRIGATION DISTRICT LAWS OF THE SEVENTEEN WESTERN STATES OF THE hfv UNITED STATES COMMITTEE ON IRRIGATION OF ARID LANDS. House of Representatives. sixty-sixth congress. MOSES p. KINKAID, Nebraska, Chairman. NICHOLAS J. SINNOTT, Oregon. CHARLES J. THOMPSON, Ohio. EDWARD C. LITTLE, Kansas. EDWARD T. TAYLOR, Colorado. ADDISON T. SMITH, Idaho. CARL HAYDEN, Arizona. JOHN M. BAER, North Dakota. MILTON H. WELLING, Utah. BENIGNO C. HERNANDEZ, New Mexico. CHARLES R. EVANS, Nevada. JOHN W. SUMMERS, Washington. CLAUDE HUDSPETH, Texas. HENRY E. BARBOUR, California. Dan F. Reynolds, Clerk. 2 CONTENTS. Page. The public corporation as related to irrigation 7 Irrigation farmer not an individualist 7 Irrigation as the fundamental institution 7 Growth of the public corporation idea 8 Advantages of district organization 8 District organization not a panacea 9 Experience of the Federal Government 10 Projects not Federal 10 Origin and nature of irrigation districts 10 Historical 11 Corporate nature of an irrigation district-' 11 Irrigation districts are public corporations 11 Formation of irrigation districts 12 Petition 12 Hearing on organization 13 Organization election 13 Legal character and effect of proceedings 13 Inclusion of cities and towns within irrigation districts 15 Railroad pi'operty , 16 Federal and State laws 16 Concurrence by State engineer in formation of districts 16 - Conclusiveness of organization 17 Elections and qualifications for voting 18 Qualifications of voters IS District officers 20 The board of directors and its functions 20 Other district officers 21 Cboperation with the United States 21 Provision in State laws 21 Federal lands in irrigation districts 23 Congressional act in favor of districts 24 Additional congressional action desirable 25 Statutory bar to farm loans should be removed 25 Drainage by irrigation districts 26 Drainage an irrigation necessity 26 The supply and drainage systems equally irrigation works 26 Experiences of the Federal service in drainage 27 Recognition by Congress 27 Drainage district statutes 27 Irrigation district should be used for drainage 28 Doctrine of Idaho courts 28 May high lands be assessed for drainage of low lands? 30 Idaho charging high lands 30 Situation in other States 32 Security against future seepage losses 32 Indebtedness of irrigation districts 33 Bonded debts 34 Purposes for which bonds may be issued 34 Discussion of unlawful purposes 35 Form of bonds 37 Terms of bonds 37 Negotiability 3S Security behind the bonds 39 Immunity from taxation in California 40. 3 4 ■ CONTENTS. Indebtedness of irrigation districts — Continued. Bonded debts — Continued. Page. Various doctrines protecting bondholders 40 Confirmation of bonds 42 Registration and -certification of bonds 42 Same — Certification of project feasibility 43 Sale of bonds 44 Retirement of bonds before maturity 44 Refunding bonds " 44 Effect of changes in district upon bonds 45 Indebtedness not bonded 45 Warrants 46 Confirmation proceedings 47 Object 47 Scope of confirmation 47 Statutory procedure 48 .lurisdiction of court 48 Appellate proceedings 49 Validity of confirmation proceedings 49 Federal Supreme Court doubtful of decree 49 State courts all uphold adjudication 50 Effect of fraud upon confirmation proceedings 51 Binding character of decree — Effect upon State 51 Revenue 52 General 52 Provisions for i-evenue fundamental 52 .loint responsibility of district and creditors would be fatal 52 A tendency to be avoided 52 Importance as regards drainage 53 Where the etpiities are to be found in case of loss 53 Advantages to the district of unified financial responsibility 53 A word on cooperation 53 Two instruments for revenue collection 54 Assessment and levy 54 The agencies for collection 54 Basis and measure of assessment 54 Assessment laws valid — Ad valorem method 55 Assessment of personal property upheld in Texas 56 Flat rate and benefit assessment held valid 56 Relaxation from liability of district as a whole 57 Same — Defect in Montana act 57 Same — Arizona provision for discharge of obligation 58 Same — Release from debt for refunding bonds — Coloi'ado 58 Same — Dakota provisions 58 Duty to reassess lands upheld on appeal . 58 Apportionment of assessment annually or once for all 59 Idaho plan discussed 59 What lands assessable 60 Assessment of State lands 60 Same — Leasehold interests 60 Same — Payment of assessments by the State 60 Same — Payment of assessments by purchaser or lessee 61 When validity of assessment of lands may be raised 61 Discretion of the board in assessing 62 Mandamus for failure to assess 62 Defective assessment 62 Nature of irrigation district lien 63 Relation of irrigation district liens to titles 63 Situation under Federal farm loan act 64 Reclamation Service liens i. 64 Legal bar removed in case of irrigation district 64 Further revenue procetlure 65 Special assessments 65 Tolls and charges 65 Constitutionality of the irrigation district law 66 CONTENTS. ■* '.4^ O Page. Irrigntion districts in operation 68 Water i-ij;ht 68 Vested rif,dits 68 Districts can not adjudicate water rights 69 Nonjudicial classification of rights 69 Disti'ibution of water 69 California rule in distribution 70 " Benelicial use " rule preferable 70 Rotation in service 70 Denial of service for nonpayment 71 District responsibility — Theory 71 Liability for oflicial negligence ^ 71 Official lial)i!ity 71 The privilege of transfer 72 Transfer of water in case of subirrigation 72 Power development 72 Relations with cities 7.3 Financial policy 74 p]minent domain .• _ 74 Special privileges 74 Operation by the United States 74 Carey Act projects 75 Mass meetings — A suggestion 7.5 Subdistricts for local improvements within the main district 75 Necessity of provisions for local improvements 75 Statutory provisions necessary 7.5 The Nevada provision 76 The Washington provision 76 A comparison 77 Changes in boundaries 77 In general 77 Annexation 78 Same — Hearing 78 Same — Election may be held 78 Same — Protest 78 Same — payments upon admission 7.S Exclusion 79 Exclusion desired on account of seepage 80 Proceedings for exclusion 80 Order by the board 81 Election when necessary 81 Interdistrict cooperation and merger 81 Overhead or reservoir districts ^ 81 Cooperative construction 82 Districts for interstate projects 82 Same — Methods that of cooperation rather than corporate unity 82 Same — The California statute 82 Joint action in securing irrigation works §3 Merger or consolidation §3 Dissolution . 84 Express provisions necessary <5^ Practically all States permit dissolution g4 Creditors to be protected g5 Two general methods of procedure g5 General outline of the statutes gg Adjustment of indebtedness roject nuist be supplied by nature and the energy, honesty, and ability of the men who build and of those who farm, llence among irrigation failures there have been a considerable num- ber of irrigation district failures.^ * See the able presentation of the subject " Irrigation districts in California, 1887- 1915." Bulletin No. 2, State of California Department of Engineering, 1916, by Frank Adams, irrigation manager, Office of Public Roads and Rural Engineering. United States Department of Agriculture. Mr. Adams divides the irrigation districts of California prior to the amendatory act of 1897 into speculative and nonspeculative districts and asserts that no district under the California act of 1897 haa failed financially. (Id., I, 114.) 10 HANDBOOK OF IRRIGATIOISr DISTRICT LAWS. The irrigation district, while not a " cure-all," is the most satisfac- tory inethod yet devised for the organization of irrigation projects involving considerable bodies of land. Experience of the Federal Government. — ^The Federal Govermnent, lifter 15 years' experience in irrigation work, through cooperation with local settlers and private and public corporations, has found that the irrigation district is the best form of local organization. Secretary of the Interior Franklin K. Lane, in his report of July 2, 1917, to the Committee on Irrigation of the House of Representatives upon House resolution 4954, Sixty-fifth Congress, relating to irriga- tion districts, said : This department has already contracted with numerous irrigation districts, and I find that cooperation with these public corporations enhances the security of tlie United States, gives facility in the collection of moneys due to the United States, and at the same time is popular with the water users themselves, since they have the powers and privileges of a public corporation. Moreover, organization as irrigation districts binds to the project, irrespective of individual consent, once the statutory majority has been obtained for the formation of and making of contract, all the lands of the project, and thereby promotes early cultivation of the land and eliminates speculation. (H. Rept. No. 93, 65th Cong., 1st sess.) Among the projects of the Federal Reclamation Service which have now, employing the State and Federal laws outlined below, substi- tuted irrigation district organization for the former water users' associations organized under the private corporation laws of the va- rious States, are the following: The Minidoka (Gravity unit), in Idaho; the Fort Laramie and Gering unit of the North Platte proj- ect, and several subsidiary cooperative areas in Nebraska; the Ele- phant Butte unit of the Rio Grande project, New Mexico; the Wil- iston project, in North Dakota; the Klamath, in Oregon; the El Paso unit of the Rio Grande project, Texas; the Mapleton and Springville units of the Strawberry Valley project, Utah; and the Sunnyside, Tieton, and several subsidiary units of the Yakima project, and the Okanogan project, Washington. The Sun River, Montana; New- lands (Truckee-Carson), Nevada; and Umatilla west extension, Ore- gon, are now in process of organization. Projects not Federal. — ^While the irrigation district idea is rap- idly gaining in favor among the financiei's and farmers, and it may be said that new irrigation development throughout the West is now being undei-taken in the main through irrigation district organiza- tion, yet the area of irrigated lands under such organization is but a comparatively small portion of the total area of irrigated lands. The laws of several of the States now make express provision for the organization of districts, not merely for construction purposes and for improvement work, but for the operation and maintenance of fully constructed projects, and the work of reorganizing as dis- tricts irrigation systems hitherto under private corporation control is under way in various parts of the West, Origin and Nature or Irrigation Districts. The irrigation district laws in their main outlines follow the parent act of California to a large extent and hence, for brevity's sake, it is deemed best to preface discussion of individual State laws with an outline of the provisions of law which are to a great degi'ee com- ORIGIN AND NATURE OF IRRIGATION DISTRICTS. 11 moil to the various laws, noting subsequent!}" the most important points of divergence and other special features under the names of individual States. Incidental reference is made to the decisions of State and Federal courts, although these references are very far from a complete digest of .the decisions. IIi8torlcal.—T\\Q, honor of the pioneer in irrigation district legis- lation belongs partly to Utah, for it was there, in 1805, that the first law was enacted applying the public corporation principles to irri- gation. (Act approved Jan. 20, 1865. See the Compiled Laws of Utah, 1876, p. 219.) This law was repealed without having been put into successful operation. The main credit in leadership, both as to legislation and the es- tablishment of the principle in the courts, is due to California. The Wright Act of March 7, 1887, is the parent enactment of almost all of the laws of the other 16 States which have now passed irrigation district statutes, and there are about 100 recorded decisions of the California Supreme Court and of Federal courts in suits arising in that State. This body of decisions is doubly important since, as held in the case of McCord ^Mercantile Co. v. ]\lclntyre (138 Pac, 59; 25 Colo. App. (1914), 376), to the extent of the adoption of the law of California other States have accepted the construction placed upon the law by the California courts. The same State also led in several important amendatory acts, including the confirmation act (L. 1889, p. 212), the effect of which is outlined below, and in 1897 recodified the irrigation district law (L. 1897, p. 254). All States from and including the tier from North Dakota to Texas westward now have irrigation district laws, the North and South Dakota Leg- islatures having passed acts at the 1917 session. Covporate nature of an irrigation distinct. — The identity of the legal character of an irrigation district with that of reclamation dis- tricts formed for the drainage of swamp or overflowed lands has been recognized practically from the start of irrigation district litigation. In the case of Fallbrook Irrigation District v. Bradley (164 U. S., p. 112), this identity was clearly recognized: The case does not essentially differ from that of Hagar v. Reclamation Dis- trict (111 XT. S., 701), where this court held that the power of the Legrislature of California to prescribe a system for reclaiming swamp lands was not incon- sistent with any provisiftn of the Federal Constitution * * *_ Irrigation is not so different from the reclamation of swamps as to require the application of other and different principles to the case. The fact that in draining swamp lands it is a necessity to drain the lands of all owners which ^re similarly situated, goes only to the extent of the peculiarity of situation and kind of land (p. 163). IrQ^gation distHcts are "public corporations. — While there has been considerable variation in the opinions of courts as to the precise defi- nition to apply to irrigation districts, there has been uniformity in the decisions to the effect that these corporations are public and quasi municipal in character. The Fallbrook case may again be cited in this connection and this suit, it may be noted in passing, was one in which exceptionally eminent counsel appeared including Ben- jamin Harrison, Joseph H. Choate, and John F. Dillon. The court said : The formation of one of these irrigation districts amounts to the creation of a public corporation, and their officers are public officers. This has been held 12 HANDBOOK OF lEEIGATION DISTRICT LAWS. in the Supreme Court of California. (In re Madera Irrigation District, 92 Calif., 296; People i: Selma District, 98 Calif., 206.) (Id., p. 174.) Many of the earlier decisions in defining irrigation districts desig- nated them municipal corporations. Such a definition, however, was found to raise constitutional questions. In Nebraska the constitution forbade the creation of municipal corporations by local boards, whereas the irrigation district law in the formation of districts pur- poi'ted to confer a creative authority upon county boards. It was held that these districts are public rather than municipal corpora- tions. (Alfalfa Irr. Dist. v.^ Collins, 64 N. W., 1086; 46 Nebr., 411.) The Washington constitution provided that " no county, city, town, school district, or other municipal corporation shall " incur an in- debtedness in excess of 5 per cent of its taxable property. The su- preme court noted that the term municipal as used in the constitu- tion nuist be given a wider meaning than usual, but upheld the irri- gation district law as not within the prohibition. In so holding the court pointed out that — one of the essentials of a municipal corporation is that for the purposes for which it is organized it must affect all within its boundaries alike. A school district though organized only for the purpose of providing means and fur- nishing facilities for the education of its children, yet affects all the taxpayers of such district alike. The same may be said of a county. The distinction was that the irrigation district does not equally affect all inhabitants, the real property only being assessed for a local improvement. (Board of Middle Kittitas Irr. Dist. v. Peterson. 29 Pac, 995, 996: 4 Wash., 147.) The Idaho courts have adhered to the public corporation idea : It is settled law that irrigation districts are public corporations although not strictly municipal in the sense of exercising governmental functions other than, those connected with raising revenue to defray expenses of constructing and operating irrigation systems and the conduct of the business of the disti'ict, (Indian Cove Irr. Dist. r. Prideaux, quoting Fallbrook and Idaho cases, 136 Pac. 618, 021; 25 Idaho (1913), 112.) Other comparatively recent cases as to the corporate nature of irrigation districts are to be found as follows : Nampa and Meridian Irrio-ation District v. Briggs (147 Pac. 75; 27 Idaho, 84) ; Rathfon V. Payette-Oregon Slope Irrigation District (149 Pac, 1044; 76 Oreg. (1915), 606) : McCord Mercantile Co. v. Mclntyre (138 Pac, 59; 25 Colo. App. (1914), 376); In re Gallatin Irrigation District (140 Pac. 92; 48 Mont. (1914), 605) ; Brown Bros. ^^ Columbia Irri- gation District (144 Pac, 74; 82 Wash. (1914), 274). In the last- named case the Washington Supreme Court held that irrigation dis- tricts are included within a statutory clause affecting " other munici- pal corporations." Formation of Irrigation Districts. Petition. — The earlier acts follow the original Wright Act of Cali- fornia, and provide that whenever 50 or a majority of the landowners or freeholders owning land in any district desire to provide for the irrigation of the same, they may propose the organization of a dis- trict. This provision the courts have interpreted to mean that the petition must be signed by a majority only if the district be such that a majority is less than 50 owners. (See Rothchild Bros. v. roRMATioisr or irrigation districts. ' 13 Rollinger et al, 73 Pac, 3G7; 32 Wash., 307.) The California law has now, however, been so amended as to require signature of the petition by a majority of the landowners representing a majority in value, and several States have made similar changes. In their early history in California these corporations, due partly to the difficulties incident to thrashing out the constitutionality and other legal fea- tures in the courts, but partly also owing to the opposition of the large landed proprietors, mot with much ill success. Experience in-- dicates that it is safer to have the support of the majority of the owners of the lands to be taxed, even including nonresident pro- prietors who would be precluded under most statutes from voting at the organization election. ^ There is, however, the possible counter consideration that the initiation of the district organization ought not to be dependent upon nonresident owners who often have only a slight interest in the community and are frequently to be found in the absentee speculator class. The petition, with preliminary description of boundaries, and a varying amount of information as to the plans proposed, is pre- sented to the county board or to the local court as may be required by the statute. The petition must be accompanied by a bond in double the amount of the probable cost of organization. The. bond, however, is not jurisdictional, but is required as a matter of security. (O'Neill V. Yellowstone Irr. Dist., 121 Pas., 238; 44 Mont. (1912), 492.) Hearing on organization. — A hearing is then called, persons in- terested being notified by the publication, or by both publication and posting of notice with petition attached for a brief period, generally two or three weeks. Upon the hearing, after ascertaining that the petition and notice are regular, the county board, or the local court, as the case may be, proceeds to determine the boundaries and hear petitions of landowners to be included or excluded from the district. In making the determination of boundaries no land must be included which is not benefited and the boundaries must not be so modified as to change the object of the petition or to exempt any land, within the boundaries as contained in the petition, susceptible of irrigation under the projected system. Adjournment of the hearing for fur- ther information may be taken, the statute generally placing a maxi- mum upon the period of delay. Unless the tribunal in question finds some obstacle to further pro- ceeding an election is called which likewise requires no personal service upon individuals and notice is given by publication and post- ing of notices for a second brief period. Organization election. — At the organization election landowners must vote " Irrigation district yes," or " Irrigation district no," and the statutes vary from a bare majority to a four-fifths majority as to the vote necessary to carry the election. New Mexico is unique in requiring a majority not of the persons voting, but of those en- titled to vote. Legal character and effect of proceedings. — This proceeding for organization is a proceeding in rem and notice by personal service is * Mr. Adams's discussion of California experience may be consulted with profit on this subject. See former citation to his work, p. 0. 14 HANDBOOK OF IRRIGATION DISTRICT LAWS. not required. Publication in accordance with the statute is suffi- cient. The publication of a notice of the proposed presentation oi the petition is a sufficient notification to tliose interested in the question and gives them an opportunity to be heard before the board. * * * There is notliing in the essential nature of such a corporation, so far as its creation only is concerned, which requires notice to or hearing of the parties included therein before it can be formed. It is created for a public purpose, and it rests in the discretion of the legislature when to create it, and with what powers to endow it. (Fallbrook In-. Dist. r. Bradley, .supra, p. 174.) While considering the effect of the organization proceedings it should be said that it has long been held that the other proceedings by irrigation districts referred to below are also proceedings in rem, and notice by publication merely is valid. But one recent authority will be quoted : The organization of an irrigation district and all proceedings in connection therewith, the voting >elow, at p. 18. FORMATION OF IRRIGATION DISTRICTS. 17 is at least equally applicable to projects organized in forms other than that of a public corporation. These provisions, therefore, should be considered carefully by all States Avhich have not as yet passed them, and several of the statutes can be strengthened to the end that Avliere the State engineer is doubtful as to the feasibility of the project, full publicity be given to his views, and that the plans be required to be amended or the district voters assent after full consideration. Conclusive nes!^ of organisation. — Iri-espoctivc of the decree result- ing from confirmation proceedings,^ it is not easy to nullify the organization of an irrigation district once it is established as a cor- poration in fact under a constitutional statute and is exercising its corporate functions. There may be defects in the legal proceedings whereby the organization was intended to be perfected. Courts have held in numerous cases that such de facto district can not be attacked collaterally, as for example in foreclosure proceedings for the collec- tion of district assessments. A Federal circuit court of appeals has said : The question of the legality of the organization of the irrigation district may not be raised collaterally if the district be acting under color of law and the State acquiesces therein. (People v. Linda Vista Irr. Dist., 128 Calif., 484; 61 Pac, 86; Miller r. Perris Irr. Dist., 85 Fed., 693; Quinton v. Equitable Inv. Co., 196 Fed. (1912), 314, 317.) In fact, it has been held that the validity of irrigation districts, in common with other similar public corporations, is subject to direct attack only by the State, either at the instance of the attome}' gen- eral or upon the relation of private persons alleging themselves ag- grieved. (See Miller v. Perris Irr. Dist., 85 Fed., 693; 92 Fed., 263, and Holland v. Avondale Irr. Dist., 166 Pac, 259; 30 Idaho (1917), 479.) Moreover, the principles of estoppel may often be of avail in pre- venting a successful denial of the valid organization of an irrigation district. For example, the district itself obviously can not plead the invalidity of its organization as a defense to the district debts, and the district officers and all landowners who signed the petition for formation or voted for organization are estopped to plead the de- fective status of the district. In a case before the United States Supreme Court the doctrine of estoppel was applied where an irrigation district had received con- sideration for a bond issue sold and had built the irrigation works; but— Notwithstanding these facts, it [the district] now refuses to pay the bonds or the interest thereon and, while acting as a corporation at all times, still sets up that it was never legally organized, and hence had no legal right to issue any bonds. In the case of Douglas County Commissioners r. Bolles (94 U. S., 104, 110). a case involving facts somewhat similar, this court said : " l^nnmon honesty de- mands that a debt thus incuri-ed should be paid." That sentiment has lost no force by the lapse of time, and we think it applies in its full strength to this case. (Tulare Ii'rigation District v. Shepard, 185 U. S., 1, S. ) Some States, as severally noted below, in addition to provision for judicial confirmation, place a statutory limit upon the period during * See our discussion of confirmation proceedings below, p. 47. 160047—20 2 18 HANDBOOK OF IRRIGATION DISTRICT LAWS. which any defect in the proceedings for organization may be liti- gated. After quoting from the confirmation act and the statute of limitations as contained in the California irrigation district act, a Federal court said : These two statutes, taken together, furnished the irrigation district with a plain and speedy metliod of procedure for determining the legality of the pro- ceedings under which it was brought into existence, and gave to the public dealing with such a corporation the protection of a just and reasonable statute of limitation against the defense that its formation was irregular and its birth illegitimate. (Herring r. Modesto Irr. Dist., 95 Fed. 705, 721.) Unless the period named in the statute is so brief as to fail to give reasonably diligent persons opportunity to take action in the courts, and thus result in the violation of the constitutional provision re- quiring due process of law, the courts hold the limitation valid and conclude the right of action. The presumption strongly favors the validity of the statute. (17 Rul. Cas. Law, 678; Hayes v. Douglas County, 65 N. W., 482 ; 92 Wis. 429.) The principles of de facto corporations, estoppel, and statutory limitation, applied to irrigation districts in the foregoing paragraphs are in no respect different from those long declared applicable to other varieties of public corporations. The most important means of securing repose as to the legality of the irrigation district organization proceedings is by the direct judi- cial confirmation. This is primarily a proceeding in settlement of the validity of a bond issue, and hence is discussed below, page 47, but inasmuch as the decree in confirmation settles the validity of the organization just as conclusively as that of the bond issue, the reader should bear it in mind equally in the present connection. Elections and Qualifications for Voting. The statutes provide for the conduct of elections, generally making applicable the provisions of the general election laws of the State excepting so far as modified by the provisions of the irrigation dis- trict acts. As a rule prior registration and any particular form of ballot are expressly dispensed with. Provision is made for the ap- pointment of election officers and notice of all elections is required to be given and the polling hours are fixed by the statutes. After the organization election the county board is required to publicly canvass the votes. Subsequently canvass is made by the district board. Election precincts are provided for by the board in such num- ber as will facilitate the voting. At general and special elections a majority of the ^otes cast suffice to carry the measure proposed, whereas in the formation of the district and the incurring of in- debtedness larger majorities are frequently required by statute. This will be found recited under the head of particular statutes. Provision is likewise made in several States for the care of ballots, for their retention for a certain period, and for their ultimate de- struction. The board of directors enters in the records of the dis- trict a statement in detail as to the results and delivers certificates of election to the persons chosen. Qualifcafiorhs of voters. — The statutes differ radically as to the qualifications for voting, and the requirements which govern in each of the various States will appear later. In some States no property ELECTIOlSrS AND QUALIFICATIONS FOR VOTING. 19 qualification is required, residence in the district alone beint^ sufficient. By far the greater number, however, require ownership of land, either in general terms or to a given acreage, as in Nebraska; or the voter may merely have a leasehold in State land or an entry of Federal land as a necessary qualification. Different re(|uirements are sometimes imposed in the case of an election for the incurring of a bonded debt than for an election for general purposes. Several States confine the right to vote to the owners of " agricultural land." In most of the jurisdiction all tliose who are entitled to Aote have the same voting power, l)ut in Utah votes at all elections are cast in proportion to the number of acre-feet of water which each landowner is entitled to use, provision being made for signed ballots: and in Nevada each landowner at elections to incur a bonded indebtedness or to authorize a contract with the United States has one vote for each dollar of benefit assessment apportioned to his land, with a provision for prior registration. It is not deemed probable that the qualifications prescribed for voters under the district laws in either Nevada or Utah will meet with favor or prove satisfactory or workalile. In one case the voting power is measured by dollars while in the other it is measured by the quantity of water used. The first encourages large and speculative holdings and the second places a premium on the excessive use of water. Each plan overlooks the fact that, as a rule, one with a small farm may have the home idea as well instilled in his nature and be as interested in the permanent success of the project, as one who owns a farm 16 times as large (thereby paying taxes proportionately) and has 16 votes to his 1. Under the Nevada law one whose home farm consists of 4 acres would have but 4 votes, as against 40 votes for the 160-acre land owner. Under the Utah law the farmer who knows best how to con- serve and prevent the waste of water, and who may. with 2 acre-feet of water, produce crops on a par with another using 6 acre-feet on the same kind of soil, will have but one-third as much voting strength with the same acreage. The argument in support of either plan is on a par with the argu- ment that the average voter be allowed votes in proportion to his age, wealth, experience, education, or station in life. It was once urged that a bachelor should pay no school district tax because he had no children in school, and that families with children should pay taxes and be given votes in proportion to the number of children of school age in the family. This would encourage celibacy among the unmarried and small families among the married. Such a plan of participation in the affairs of a school district Avould be no more pernicious than are the Nevada and Utah qualifications for voters in irrigation districts, and it is quite likely the laws of both of those States will be amended upon this point in the near future. The provisions of the Idaho irrigation district act of March 6, 1911. placing property qualification upon voters in an irrigation district, requiring that ballots be marked, and declaring residence within the State as sufficient have been declared invalid. It was held that the law in these respects was contrary to the constitutional provisions prohibiting ])roperty qualifications, protecting the secrecy of the ballot, and requiring a period of six months' residence in the county as prerequisite to voting. The opinion of the supreme court 20 HANDBOOK OF IRRIGATIOlsr DISTRICT LAWS. was based upon the public character of the corporation. (Pioneer Irr. Dist. v. Walker, 119 Pac, 304; 20 Idaho, 605.) Other States have not agreed with Idaho as to the applicability of similar constitutional provisions to elections held by irrigation dis- tricts. The Supreme Court of Oregon, after citing the Idaho de- cision, upheld the irrigation district law which permitted nonresi- dents to vote, and imposed a property qualification as a condition to voting. The court reached the following conclusion : We believe we are not ruii! ing counter to section 2, article 2, of the consti- tntion in this conclusion, and a contrary holding would work a great wrong npon the farmers, who may obtain considerable benefit under such an organiza- tion, and who. on the other hand, might l)e burdened by debt beyond the bene- fits conferred: and its affairs should be left exclusively to those affected thereby. (Board of Directors of Payette-Oregon Slope Irrigation District v. Peterson, 128 Pac, 837, 840 ; 64 Oreg.. 46 ) A similar conclusion has been reached as to the constitutionality of the election provisions of the California irrigation district law, construing, however, constitutional terms quite different from those in Idaho. (In re Bonds of Madera Irrigation District, 28 Pac, 272; 92 Calif., 296; rehearing denied, 28 Pac, 675; 92 Calif., 296.) It is probable that Idaho stands alone among the irrigation dis- trict States in not taking note of the fundamental distinction be- tween public corporations for the ordinary Government purposes and public corporations formed for improvement purposes, as re- gards the applicability of constitutional provisions such as those above referred to. This distinction is noted generally throughout the country also as regards cities and towns when performing the functions of improvement districts as contracted with the ordinary work of the Government. Property qualifications in the former class of cases have been held not violative of constitutional pro- visions relating to elections. The California Supreme Court has reached this conclusion as regards election provisions in laws for the kindred purpose of reclamation by drainage. (People v. Recla- mation District, 117 Calif., 14; 48 Pac, 1016; People v. Sacramento Drainage District, 103 Pac, 207; 155 Calif, 373. See also infra p. 67.) District Officers. TJie hoard of directors and its functions. — The powers of the irri- gation district are exercised through a board of directors. The standard number of members is three, but under recent acts some times A-aries in accordance with the size of the district or is made a question determinable at a special election. In several States the members of the board are elected at large and in others by the voters of respective subdivisions of the district. All property of the district is taken in the name of the district by the board and is dedicated to the purposes of the law. The board has power to acquire property by the exercise of the right of eminent domain or otherwise and must administer all district prop- ertv. The district mav sue and be sued, the conduct of cases being in the hands of the board of directors who hire an attorney for the purpose, since no public official occupies the position of counsel for the board. The board is authorized to secure and remove agents and employees. COOPERATION WITH THE UNITED STATES. 21 The board may enter upon any land to make surveA^s and may lo- cate the necessary irrigation works. The construction of works is in charge of the board whicli is in some States expressly required to secure the services of a competent engineer. Provision is made for the awarding of contracts to the lowest responsible bickler after proper advertisement therefor, and the States differ as to whether the board may refrain from letting contracts for the construction of irrigation works and pursue the course of doing the construction work with its own forces. Means of supervision by the State through the State engineer over construction Avork are now receiving favor Avith the legislatures, Such a requirement protects the landowners and the creditors of the district and is a valuable addition to the law. In the early days of irrigation development, not only by districts but by private cor- porations there was a tendency to engage upon large enterprises with engineering, legal and executive ability of two inexperienced a grade to accomplish the best results. This tendency has been over- come to a large extent in recent years but the supervision of State agencies gives an additional guarantee of safety provided that State officials are chosen who will not unduly hamper the officers of the district by the imposition of restrictive regulations. Such a pro- vision of law has been held valid in the case of Riverside Reservoir & Land Co. v. Green City Irr. Dist. (151 Pac, 443; 59 Colo. (1915), 514). Meetings of the board are generally required to be public. Notice of the time and i)lace of meetings is generally necessary, and pro- vision is made also as to the quorum. As will be more fully described below the perpetual operation and maintenance of the system devolves upon the board of directors. The board also has important functions in the levy of the assess- ments also referred to hereafter. Other district officer-i^. — The laws differ as to several of the dis- trict officers, some providing that the district shall have its own treasurer and assessor and collector of taxes, others providing that the treasurer and assessor of the county where the lands or the major portion thereof lie shall act as ex-officio officers of the district. If those offices are not consolidated with similar county offices their incumbents are chosen by the electors of the district. The board has appointive powers as to the attorney, engineer, secretary, and other officers of the district. Cooperation With the United States. Provisions in State Imm. — Among the powers conferred upon the board of directors is that of cooperation with the United States. The board is authorized, in lieu of constructing the works by con- tract with private construction corporations or the district's forces, to contract with the Federal Government so that the United States shall construct the works under the Federal reclamation law, lend- ing the money to the district either with or without the issuance of bonds for such purpose. Laws to this end have been enacted in all of the 17 States re- ferred to in this compilation except Wyoming and Kansas. The powers of the board with respect to making the contract referred to 22 HAI^DBOOK OF IRRIGATION DISTRICT LAWS. extend to the negotiation of the terms of agreement, but except in North and South Dakota the contract must be authorized by a vote of the electors of the district after proper notice stating tlie total amount of money, exclusive of operation and maintenance charges, penalties and interest, proposed to be payable to the United States under the contract. In the two States last named, although no express pro- vision for an election upon a contract is required, it is preferable that an election be had in the same manner as in case of an election upon a proposed bond issue. The district board is authorized not only to contract for the construction of the works by the United States, generally including expressly both water supply and drain- age systems, but also for the acquisition, purchase, extension, and operation and maintenance of existing works, or for the assumption as principal or guarantor of indebtedness to the United States on ac- count of district lands. It is under the latter described clause that the majority of the irrigation districts formed upon Federal projects named above have made contracts. The districts assume a liability to the United States for the project debt in place of the former water users' associations. The neAv Federal project in Idaho, the King Hill, is organized as an irrigation district and has made agreement with the United States without being preceded by contracts with individual landowners as is the case upon the earlier projects. There are over 20 irrigation districts, in addition to those named above, chiefly adjacent to, and, in a broad sense, a part of, the Boise project, Idaho; North Platte project, Wyoming-Nebraska; and Yakima project, Washington, which have made contracts with the United States for the payment of moneys in consideration for a water supply purchased by the districts under the so-called AVarren Act of February 21, 1911, entitled " An act to authorize the Gov- ernment to contract for impounding, storing, and carriage of water and to cooperate in the construction and use of reservoirs and canals under reclamation projects, and for other purposes " (36 Stat., 925). This law expressly authorizes the Secretary of the Interior to contract with irrigation districts. AMien contract is executed with the United States pursuant to State statute, provision may be made that the delivery and distribu- tion of water for district lands shall accord with the acts of Congi-ess and the rules and regulations of the Secretary of the Interior there- imder. Moreover, the requirements of law regulating the making and levy of assessment for district purposes are rendered more elastic to follow such different procedure as may be required in order to comport with the Federal laws and the provisions of con- tracts previously entered into in order to carry out the Federal laws, so that the districts may collect the moneys to become due from respective tracts throughout the district. To this end, in States where assessments are required to be made according to acreage or according to benefit, as the case may be, the district, where contract is made with the United States, may make and levy assessments in accordance with the installment basis prescribed by the Federal laws. Other important provisions are inserted to facilitate cooperation with the United States. For example, the board is authorized to convey to the United States any rights of way or other property acquired by the district in so far as the same may be needed for COOPERATIOlSr WITH THE UNITED STATES. 23 construction, operation, or maintenance of works by the United States for the benefit of the district. The 8u2)renie Court of I(hiho has several times passed upon the l^oAver of the State and the United States to contract for the purpose of cooperation under the rechimation and Warren acts, and has reached the conchision that sucli contracts are validated both by the State and Federal hnvs : That the Secretary of the Interior has the power to enter into a contract to siipply water to an irriguiion district under the provisions of tlie act of Congress of Jxine 17, 1902, known as tlie reclamation act (32 Stat. L., 388; 7 Fed. Stats. Ann., 1098; U. S. Comp. St. 1913, sees. 47()(M1708), we thinlj there can be no doubt. If there was any doubt of the authority of that oflicial to enter into sucli contracts, it was clearly removed by the act of Congress of February 21. 1911, known as the Warren Act (36 Stat. L., 92."), sec. 2; U. S. Comp. St. 1913, sec. 4739), and the subsequent enactment of Congress passed August 13, 1914, known as the reclamatif)n extension act (ch. 247, sec. 7, 38 Stat., 688). (Nampa & Meridian Irr. Dist. r. Petrie, 153 Pac, 425, 428; 28 Idaho, 227.) This case was appealed to the Supreme Court of the United States and was there dismissed on the ground of lack of jurisdiction. The same court also upheld contracts between irrigation districts and the United States in the cases of Pioneer Irrigation District v. Stone (130 Pac, 382; 23 Idaho, 344), and Hillcrest Irrigation District v. Brose (133 Pac, 663 ; 24 Idaho, 376) . Federal lands in imgatio)h districfs. — Where districts have not availed themselves of an act introduced by Representative Addison T. Smith, of Idaho, approved August 11, 1916 (39 Stat., 506), and there are unpatented public lands within their boundaries, they are much hampered in their operations. The following by tlie Supreme Court of Idaho as to irrigation districts in that State might be truthfully said of several of the Western States : In many cases title to arid lands can not be acquired from the General Gov- ernment without water for irrigation purposes, arid in none of the irrigation districts organized in this State were the lands included therein all patented at the time the district was organized. (Indian Cove Irr. Dist. v. Prideaux, 136 Pac, 618, 620; 25 Idaho (1913), 112.) Several of the legislatures years ago made provision that entrymen upon public lands of the United States may sign as petitioners for the formation of irrigation districts and after the district is formed may .vote. The courts of last resort in irrigation States have not been in accord with reference to the status of public lands of the United States in districts. In Idaho the view was taken that irrigation bonds issued against entered public lands of the United States " would be valid and bind- ing to the extent at least of the title, interest, or claim of such entry- man in and to such lands whether acquired by him from the State or the General Government." The question " as to what liability the bonds would impose upon such lands beyond and in excess of the interest acquired or held by the entryman " was declared not to con- cern the court in the case at bar. (Gem. Irr. Dist. v. Johnson, 109 Pac, 845; 18 Idaho, 386.) The same court in the Indian Cove irri- gation district case (citation above) held that " whatever property rights or interest respondent (an entryman who had not yet obtained his patent) may have in the lands in question (his desert entry) are subject to the laws of the State not in conflict with the Federal laws on the same question." 24 HANDBOOK OF IRRIGATION DISTRICT LAWS. The Montana Supreme Court has declared "that a settler upon Government lands does not have a taxable interest in the land prior to making final proof has been the universal holding, or practically so, of all the authorities." (In re Gallatin Irrigation District, 140 Pac, 92, 94;. 48 Mont. (1914), 605.) The Supreme Court of California early held that entered public lands of the United States prior to the issuance of patent were not susceptible of assessment by an irrigation district, but that the inclu- sion of such public lands in a district would not necessarily invali- date the organization. (In re Madero Irrigation District Bonds, 28 Pac, 272 ; 92 Calif., 296.) The same court went so far as to hold that lands so included within a district would not be assessable even after patent had issued in the absence of the consent of the United States or the purchaser. The following is quoted from the case of the Nevada National Bank V. Poso Irr. Dist. (72 Pac, 1056; 140 Calif., 344) : It is clear, therefore, that so long as the said land now owned by the inter- vener i*emained public land of the United States no liability created by the State or district attached thereto. The further question then arises : Did the sale and conveyance by the United States to the intervener or her grantor operate to charge it with a pre- existing liability not created or assented to either by the Government or its grantee? This question must also be answei*ed in the negative, for, if the grantee of the United States must talve the land burdened with the liability of an irrigation district made to include it without the assent of the Govern- ment or the purchaser, it attaches a condition to the disposal of the property of the Government without its sanction or consent, and which must, in such cases, interfere with its disposal. (Id., pp. 1057, 10.58.) This rule necessitates the prosecuting of statutory proceedings for the annexation of the lands to the district upon petition of the owner. The contrary view of the assessability of lands after patent has issued, which had previously been included in a district, was taken by the Court of Appeals of Colorado in the case of Carson v. Cud- worth, and it was held that the patent related back to the issuance of the receiver's receipt. (140 Pac, 935 ; 25 Colo. App. (1914) , 131.) C ongressimial act in favor of districts. — It is evident, therefore, that in order to assure the proper assessment for irrigation purposes of land in which the Federal Government retains an interest, the districts should promptly avail themselves of the Smith Act. The purposes of this law will be found well stated in the " Eegulations concerning State irrigation districts in their relations to the public lands of the United States," approved by Secretary Lane on March 6, 1918, and issued by Commissioner Clay Tallman, of the General Land Office, in part as follows : Briefly stated, tlie purpose and effect of this statute is to empower the Secre- tary of the Interior, following the presentation of a proper ai)plication therefor, to investigate the plans and financial and physical resources of irrigation dis- tricts heretofore or hereafter organized pursuant to the law of ;iny State, and, if he shall find and conclude that any such district has phinned and is executing an altogether meritorious and feasible irrigation undertaking, to grant his approval of its plan and undertaking, provided a majority acre- age thereof is not unentei-ed land, to the end that upon such approval, and upon compliance by such districts with certain conditions in said act specifi- cally set forth, all unentered public land and land which has been entered, but upon which final certificate has not issued, shall be amenable to the State laws governing the district to the same extent and upon like terms as are privately owned lands within said districts. COOPEKATION WITH THE UNITED STATES. 25 Tax liens upon unentered and unpatented lands are expressly provided for, and no entry of lands can be made until all charges and liens under the district laws are paid. Provision is also made for tax sale of entered lands and tax liens against unentered lands. These regulations conveniently set forth the bill, and may be had upon application. They are also published in volume 4(5 of the Decisions of the Department of the Interior Relating- to Public Lands, page 307. Additional congressional action desirahle. — The Smith Act^ should be broadened to provide similar relief for drainage districts, and might also be amended so that districts of both types in which the major part of the land is unentered public lands of the United States might still avail themselves of the law in cases where the district contracts with the United States under the Federal reclamation laws. The reasons underlying the prohibition against the recognition of districts having a major portion of unentered public lands are not applicable when a Federal project is undertaken. Statutory har to farm loa/ns should he removed. — Another impor- tant piece of legislation should be enacted by Congress for the pur- pose of cooperation with irrigation districts. Under the terms of an act entitled " An act providing for patents on reclamation entries, and for other purposes," approved August 9, 1912 (37 Stat., 265), lands patented within reclamation projects are required to be bur- dened by the reservation of a lien in the patent for the payment of reclamation charges. Where irrigation districts are formed upon Federal projects and contract with the United States, the reserved lien upon patented public lands is not necessary for the safegtiarding of the Federal reclamation fund, the Government having the same ample security as for the repajniient of charges against other private lands of the project within the irrigation district. The methods of assessment and levy for payment to the Federal Government by irri- gation districts are described below. The reservation of the lien in the patent is tantamount to a mort- gage in favor of the United States, and has been very properly held by the Federal Farm Loan Board to preclude the approval of loans upon lands burdened thereby, since the Federal farm loan act (39 Stat., 360) prescribes that first mortgage security must be obtained ■ for all loans approved thereunder. (But the irrigation district is an assistance to securing Federal loans where land patents antedate the act of 1912. See infra, p. 64.) A measure to relieve lands from the reservation of lien, so em- bodied in the patent, where a contract is made between the United States and an irrigation district for the payment of all charct. and we adopt the views therein expressed as the opinion of the court and hold that an irrigation district possesses the powers necessary to drain its overflowed lands and to protect its landowners from seepage and overflow waters as well as to supply water to the dry and arid lands of the district. (Pioneer Irrigation District v. Stone. 130 Pac, 382, 383 ; 23 Idaho, 344, 1913. ) The same doctrine has been put into further practice in the cases of Colburn v. Wilson (132 Pac, 579; 2-t Idaho (1913) 104), wherein it was declared that the district lands nuist be considered as a Avhole and that all lands must be assessed for benefits for the improvement and maintenance of drainage work, and Xampa and ^Meridian Irr. Dist. V. Petrie (153 Pac, 425, 429: 28 Idaho, 227). The view which the Idaho courts and the Federal Heclanuition Service have adopted, namely, that statutory authority to construct irrigation works covers equally drainage works necessary to an irrigation project may well be followed in the inter})retation of irrigation district laws through- out the west. This doctrine is more obviously, but probably not more truly, applicable where the supply and drainage works are constructed simultaneously as comixtnent means to irrigation than where the drainage works are undertaken long after the supply system. The excavation of supply ditches generally precedes the develop- ment of farms to be served, whereas similar construction work for drainage ditches as a rule follows the cultivation of the soil. Hence the award of damages is a much more important matter in the latter case than in the former, the losses being very unequally distributed among the landowners. This circumstance should receive more care- ful consideration than it has been given in the States where merely general authority to provide drainage is conferred upon irrigation districts. In Xew Mexico, where the ordinary assessments are fixed by the irrigation district statute on a per-acre basis, a special provision was made in 1917 for the award of damages and the assessment of benefits for drainage. * See discussion .at p. 54 below as to basis for assessments. 30 HATTOBOOK OF irrigatio:n' district laws. J\Iay high lands he assessed for drainage of low lands? — Another question vital in drainage affairs on irrigation projects, however they may be organized, is the assessment of high lands. The drain- age laws of arid and semiarid States are often based upon the situa- tion applicable in humid regions where the need for drainage is almost solely due to natural conditions of elevation, soil, and topog- raphy. The u]jper lands, doubtless, contribute to the swamp and over- flowed condition of the lower lands through the processes of nature, and so long as the owner does not, by changing natural conditions as regards surface and percolating waters, violate the rule of morals and of law that a man must so use his OAvn as not to injure that of another, neither moral nor legal responsibility will be entailed by the upper owner in favor of the lower. The cost of drainage in humid regions, therefore, may be assessed with entire propriety and justice in pi'oportion to the enhancement of the market value of the tracts to be drained as such value is ordinarily defined. In irrigated countries, however, the most important drainage prob- lems ai'e the result of irrigation, the ground water and alkali rising on the lower lands largely as the result of the irrigation practiced on farms in the vicinity having higher elevation. This artificial situation fundamentally modifies the equities and renders the principle of benefit based on cnliancement of a strict present mai'ket value unsound in all cases of drainage incidental to irrigation. The situation calls for some rule of assessment which will recognize the physical unity of the drainage area, and the par- tial responsibility of the owners of higher lands for the drainage difficulties, to wit, a broader rule of benefit. Furthermore, proper assessment is sometimes a necessary condi- tion to the continued cultivation of considerable areas, for if the lower lands are to be assessed for the entire cost of drainage, those which are water logged sometimes become chargeable with more than the lands will stand as a practical farming proposition, and thus valuable property may l)e lost, and the ])rotection of lands not so greatly damaged and the security of the creditors of the district may be jeopardized. It is, therefore, exceedingly important that legislatures and courts develop a body of law whereby the cost of drainage shall be assessed etjuitably and in practical fashion. Idaho charging high lands. — The State of Idaho appears to have solved the ])roblem for that State. The drainage district law passed in 1918 (Idaho L. 1913, ch. 16, p. 58) was amended at the next ses- sion (L. 1915, ch. 42, p. 123) by the addition of the following sec- tion: Skc. Oa. In detcnnining the anuiunt which each tract of land will be bene- fited by sucli pr()i)()sed drainage system the commissioners shall consider the damase done to low land from seepage and saturation l)y irrigation water from high land, and the necessity for the carrying off of waste water, and such high lands shall be considered as being benefited to the extent and in the amount that such lands are responsible for damage to low lands fronr seepage and saturation by irrigation water. The supreme court of the State has strongly upheld the statutory provision above quoted in the cases mentioned below. The require- DRAIISrAGE BY IREIGATION DISTRICTS. 31 ment that lands responsible for tlie damage shall be deemed bene- fited is declared valid, upon the ground that the former common-law rule recognized the responsibility of upper OAA'ners, and that jt is competent for legislatures to revive the earlier doctrine. The doctrines of these cases are of so great importance to many sections that we venture to make unusually full quotations, the italics used being ours : The English common kiw as well as the early American rule was to the effect that any person who conveyed or accumulated water upon his land by artificial means did so at his peril, and if any water should escape by means of seepage, and damage result, liability therefor was conclusively presumed. During the years of the development of irrigation in the western country, the courts, with the desire, evidently, of lending every encouragement to the reclamation of arid lands, required proof of negligence in the construction of canals before permit- ting the recovery of damages from seepage. * * * It seems in this irrigated country the question of drainage is now confront- ing almost every irrigated section, and there seems very cogent reasons for a return to the formei" rule above stated, at least to the extent of assessing lands for the construction of a drainage system from which seepage or percolation damages or injures other lands. The early settlers of the arid regions were not confronted \vith the question of drainage, but time and experience have proven that a drainage system is absolutely necessary where large areas of desert land are reclaimed by irrigation. * * * It is a well-recognized rule of law that an owner of property ought not to be permitted to use it to the injury of the property of anotlier, but recognizing that tltcre are some injuries which result in damages for ivhich compensation can not 6e recovered in an action in court, we are satisfied that the legislature has full authority under the Constitution to provide for assessments and make all property subject to such assessments that Is physically responsible for dam- ages that result from, acts for which no legal responsibility under an action to recover damages attaches, and that the legislature has done so under and by virtue of the drainage laws enacted by it. * * * It is clearly the policy of the State to have the great irrigation schemes of the State so conducted as not to ruin thousands of acres of line agricultural land and bankrupt the owners and leave them remediless. (In re Drainage Dist. No. 1 of Canyon County, 161 Pac, 315, 320, 321; 29 Idaho (1916), 393, 395.) The importance of the above-quoted views Avas materially de- creased after rehearing (161 Pac, 321, 323) ; but was thoroughly reestablished by the later case of Burt et al Drainage Commissioners V. Farmers Coop. Irr. Co. (168 Pac, 1078; 30 Idaho (1917), 752).; The court, after quoting from the former case, declared : By section 9a the purpose was to require lands on higher levels, on which irri-, gation water might l)e brought by artiflcial means, and which contributed to the swampy condition of lower lands by seepage and the percolation of water through the soil, to be assessed in a just amount for the construction of drainage works for the reclamation of such lower land. It is jirohable that the legisla- ture M'as not considering the question of legal liability for damages at the suit of private individuals, and certainly it was not considering the question as to whether the seepage and percolation was diie to negligence of the person bring- ing irrigation water upon the higher lands. By section 9a it is provided that such high land shall be considered as being " benefited " to the extent and in the amount such lands are responsible for damages to low lands from seepage and saturation by irrigation water. We have no doubt of the power of the legis- lature to provide that lands which by reason of artificial irrigation contribute by seepage and. saturation to the swampy condition of loioer lands shall con- tribute their just proportion of the cost of the construction of drainage tvorks for the reclamation of such lower lands. (Id., p. 1082.) This rule as regards the assessment of high lands has not been en- joined upon irrigation districts by the Idaho Legislature, but the force of circumstances and the reasoning which has l)ecn adopted would seem to impel such an outcome, either as the result of judicial 32 HANDBOOK OF IRRIGATION DISTRICT LAWS. or legislative action. The irrigation district, being a corporation municipal in character which would more often as a matter of local development comprise both high lands and low is certainly fully as appropi'iate an agency for the taxing of the entire irrigation project for relief against seepage as is the drainage district. Situation in other States. — The Idaho doctrines have been dwelt upon fully for the reason that they are deemed to point the way toward a solution of a question exceedingly vexing in almost every section where irrigation is practiced. Reforms can not be made without the coopei-ation of both legislature and courts, but it seems to be evident that the relief is susceptible of being worked out so as to save large areas of valuable lands witliout undue discrimination. The problems of seepage and percolating waters are among the most difficult in engineering and local operations as well as in law, on account of the lack of exact knowledge of the causes and effects which influence the course of water beneath the* surface of the ground. Nevertheless, general justice may be reached in the appor- tionment of the costs of drainage upon the basis of responsibility outlined in the above-quoted decisions, which will about as closely approximate the ideal as is attained in most human relations. The duty devolving upon boards havmg the assessments in hand is of course a difficult one, but the difficulties are not insurmountable.^ The supposed unwillingness on the part of owners of higher lands to sustain their share of the drainage costs is unduly emphasized in the minds of many. With the means provided by which the upper owners in a mass will be brought in, the district is enabled in most localities to receive the support of a sufficient proportion of the iarm- ers enjoying higher elevations to assure the cooperation necessary to obtain success. The removal of unsightly and insect-breeding marsh and tule lands and freedom from the fear that the seepage may rise eventually to higher elevations, together with local pride and com- munity spirit, and the settled fact that the irrigation of the higher lands, by which their farming is made practicable, contribute more than their proportionate share to conditions making the drain- age necessary, are certainly arguments which appeal to all public- spirited farmers, even though the present loss of crops may not exist as an argument with those more fortunately situated. There is sufficient statutory basis in most of the Western States for a declaration in harmony with the views of the Idaho Supreme Court that drainage woiks needed for irrigation projects may be con- structed by irrigation districts. But the present status of the irriga- tion district law is not such as to make it safe to predict what view will be taken by the courts as to the assessment of the higher lands not directly menaced by seepage for the drainage of the district as a whole. The Idaho decisions and the drainage district provision rep- resent advanced judicial and legislative thinking but are likely to be followed in other States, since the problem is an urgent one and uni- form in its main features throughout the irrigated belt. SecMTity against future seepage losses. — No means has been devised whereby a district can enter into a contingent liability for the pro- tection of creditors to the end that if and when seepage difficulties ' The extent of the discretionary power devolving upon boards of directors in this matter Is outlined below (p. 62). IXDEBTEDXESS OF IKPaGATIOX DISTRICTS. 33 may arise the district >vill protect the bondholders by assuming the necessary del)t and 1)}^ the construction of an adequate drainage system. Persons loaning to the owners of irrigated lands upon long-time security, Avhatever the form of irrigation organization may be, where irrigation has not been ])racticod long enough to show that artificial drainage Avill not be required should ascertain not only the usual facts but also the existence of the necessary topographic conditions for the construction of drainage works. Creditors imqiiestionably have n sti'ong element of security in the fact that the landowiiers unist supph' the necessary drainage fa- cilities unless they are prepared to lose their entire property. The persuasiveness of this argument of self interest is, of course, de- pendent upon the feasibility of drainage and uixui the existence of a reasonable margin between the \aliie of the land and the existing indebtedness. When seepage troubles arise upon a project where an irrigation district with powers of drainage has been formed the solution of some of the mos^t important of the usual difficulties has been provided in advance. The ability to cooj^erate has been lo- calAy recognized and developed, tlie vehicle for such cooperation as is necessary has actually been tried out, and sentiment lias ac- quiesced in its machinery for collection and operation. Thus the risk of divided counsel antl of local disunion, which is the ])rincipal cause of irrigated sections being ruined by seepage, is eliminated in advance wherever the irrigation district has been formed upon a project. Therefore, the creditors loaning upon lands within an irrigation district have a strong moral security which is absent in the case of any irrigated section not organized as a public or quasi-municipal corporation. Moreover, the soundness of the doctrine developed by the Idaho courts that irrigation districts are not only authorized to provide drainage for district lands when the need arises, but that thej^ are under a duty to do so. is practically certain to meet with the early and increasing favor of the other States.^ Indebtedness of Irrigation Districts. An irrigation district is a creature of statute, and as such is lim- ited in its powers by the act under which it is brought into being. We quote from the Supreme Court of California as follows: An irrigation district is a public body, and undor llie Wri.slit law has only such powei's as are given to it by that act. Such powers are enumerated in the act. "■■ * * From the foregoing it is quite api)areut that the i)urpose of the Wright Act is to enable an irrigation district to construct, or acquire by purchase or condemnation, or by all of said methods combined, when necessary, a system of canals and waterworks wliich shall be rhe property of the district and under its control ; that the board of directors have power to acquire such waterworks in the manner aforesaid, and to issue the bonds of the district in payment therefor ; and that the board has no other powera except those which are expressly given or ai'e implied as necessary to carry out the main purpose of the act. (Stimson v. Alexaudro Irr. Dist., G7 Pac, 496, 497, 498; 135 Calif., 389.) 1 The reader may be interested in discussion of drainage problems below, pp. •T.'?. 72, 80. 160047—20 3 34 HANDBOOK OF IRRIGATION DISTRICT LAWS. Further eniphnsizino- the limited character of the powers to be exercised b^^ irrigation districts the orioinal Wright Act of Cali- fornia contained, in section 42, the following provision : The iMiard of directors or other otHeers of the district sliall liave no power to iuctir any debt or liability ^vhatever, either by issuing- bonds or otherwise, in excess of the express pi-ovisions of this act, and any debt or lialtility incurred, in excess of sncii express i)rovisions, shall be and remain alisolutely void. While such would probably be the doctrine of the courts, irre- spective of statutory declaration, the clause above quoted has many times been referred to by the courts. This jn'ovision has been adopted, generally verbatim, by practically all of the irrigation district laws. The Supreme Court of Nebraska in the case of Paxton Irr. Dist. v. Conway (142 N. W., 797; 04 Xebr., 205), after (juoting this provision, says: "In acquiring bonds apj^ellants were bound by this statute and were required to respect the limitations of the officers of the irriga- tion district," and this was held to be the case, although the officers themselves had failed in this instance to respect the limitations of the authority conferred upon them. BONDED DEBTS. The principal purpose of irrigation tlistrict organization is the construction of the necessary works and, aside from contract with the United States Government for the financing of a Federal pro- ject, as al)ove described, that pui']:)ose as a rule can only be carried out by means of the authorization and issue of bonds. Therefore, under most statutes it is not disci-etionary but incumbent upon the board of directors, immediately after their election, to prepare plans and estimates for construction work. AMien such work has been performed to the satisfaction of the board, the directors nuist call an election to decide the question whether or not the proposed bonded indebtedness shall be incurred. Notice of election is required to be given in a manner expressly pre- scribed, generally both by })ublication in local newspapers and by posting of notices in the various election precincts. As in the case of other proceedings under these statutes, the au- thorization of bonds is a ])roceeding in rem. so that jurisdiction is secured without personal service by compliance merely with the statute as to publication. While the statutory method of publication in lieu of personal notice must be substantially followed, in order that the election may be valid, numy of the statutes ex])ressly provide that informalities in the matter of election will not vitiate the result if the election shall have been otherwise fairly conducted. Failure to follow the law as to the giving of notice is not to be deemed an informality. The nuijority required to carry the bonds differs in various States from a bare majority to two-thirds. It is not generally necessary that a majority of all qualified electors be obtained, but merely that a majority of those who vote favor the indebtedness. But in New Mexico there must be cast in favor of the bonds a majority of the votes of the resident freeholders owning in the aggregate a majority of the number of acres held by such freeholders. PurpoHcs f 01' which hands ni'hts therid'oi-.'" The licucral phrase "and otlierwise carrying out the provisions of ilii- chapter*' is common, and it is gencM-ally provideil that "whenever theieafter the fund for any sucli ])uri)ose has been exhausted by. or shall a])pear to l)e imuh'- ((iiate to mei't the expenditures herein aui hoi'i/iMl therefrom" the board uuist call another special bond election. In an Oreo-on case it was held tiial the authoi'ity to issue sul)sequent bonds where not expressly !).) Bonds are generally authorized to be deposited with tlie Ignited States as security tluit the contractual ])lan entered, into with the Federal Government will ])e Avi])ed out.' I>l.s-('u.s.0}i of inildivfid ptn/>os< s. — 'Jdie provisions of law as to the objects for which bonds may be issued is a matter of great im|)ort- ance. The bond issue can not be employed in management and salaries oi- othei-wise diverted from the objev-rs of the statute, to (|uotft from another California case: The directors liave no ;iiil lioriTy lo ;i]ii)roiiriiite tl'.e bonds whidi Ibc electors liave voted to issue for tlic construction of the irrigation worlds to the i)nynient <»f salaries or expenditures incuired in the nianii.uenient of the itrojierty. If, instead of sellins the honds, as directed hy section 16, they could use them for these purposes, tiie i)rovisions of section 41 Avould he futile: iwa], und(>i- an iin)>rovident oi- i-eckless hoard of directors, the honds whicli had been voted for the ])ui-pose of raisinji' "money" with which to consiruct a canal, mi.uht he frirtored away in useless cxiuMiditures and salaries, and the district receive no heueHt whalevcr. ( llimhson /•. Crane. 47 I'ac, 120. 122; IIT) Calif., 404.) Certain blocks of bonds were declared in\ alid — • If the honds wei'e issued to him in violation of the statute, they can not in his hands he valid ohliyations ajiainst the distilct, even tliousb tliey were taken in payment for his work. The law is well settled that one dealing with a uuuiicipal cor]toration is cliar.ged with a knowledge of all the linutations ui)on the iiower of its olticers. and that he can have no right of action upon its written obligation if it was entered into in en iitilizod in the case of onlv foui- dislricts. aU Iiciim in Wa.', provision of the act mijjht lead to mischievous consequences. One bi(Uler miglit l)e willing to do certain construction work at a certain price for cash, but would be unwilling to take bonds at any value, while another competing bidder would get the same work at a greater price because he was willing to take the Iwnds in payment at an agreed value. There could be no fair competition under such circumstances. The evident intention of the act is that bonds must be sold (except in the single instance of exchange for property) to the highest Indder in open market for cash, and that construc- tion work must be done on the best terms for cash. One who purchases bonds, knowing that they were negotiated in a manner not authorized by law, is not a bona fide holder, but takes them suliject to anv defense existing against them. (74 Pac. 24, 25; 140 Calif., 540.) The same result has been reached by the circuit court of appeals for the ninth district (in 1917) in the case of Rialto Irr. Dist. v. Stowell (24-6 Fed,, 294), an exchange of bonds therein being held invalid. That an exchange of bonds may be valid, however, is shown by the case of Stowell v. Rialto Irr.' Dist. (100 Pac, 248; 155 Calif., 215). It is therein held that the only mode in which the board can exercise its powers in the disposal of the bonds so as to render them valid obligations of the district under the California act (that of 1887 under which the district was organized), is to exchange them for property at their full value or to sell them in the open market at not less than 90 per cent of their face value. The distinction be- tween this case and the preceding cases is that actual property was held to have been obtained as the result of the exchange. The foregoing cases relate to the rights of the original purchasers of bonds and distinctly except the rights of later bona fide holders, and it is evident that while the original purchaser is charged upon his peril to make sure that the purpose for which he takes the bonds is one for which the district directors have the power to utter the security, subsequent purchasers are entitled to the same rights as bona "fide purchase of other negotiable securities. They are under no obligation to assure themselves of the history of the issuance of the bonds or of the lawful character of the consideration given there- for to the district. If the bonds are authorized by the law and exe- cuted in accord with the statute they are protected. That this doc- trine applies in cases of this character where the rights of a bona fide purchaser are involved is evident from the case of Baxter v. Dickin- son, collector of Vineland irrigation district (68 Pac, GOl. 603; 136 Calif.. 185). The court therein quoted from the United States Supreme Court the following passage : " This court has uniformly held, when the question was presented, tliat Avhere a corporation lias lawful power to issue such securities, and does so, the bona fide holder has a right to presume the power was properly exercised, and is not bound to look l)eyond the question of its existence. Where the bonds on their face recite the circumstances which Ining them within the power, the corporatiim is estopped to deny the truth of such recital." (Quoting from Pompton v. Cooper Union, 101 U. S., 196.) It is evident that the statute should receive the most careful con- sideration, if any other transaction is proposed than the sale of the bonds for cash, in order that parties may, for their protection, make BONDED DEBTS. 37 certain tliiit tlio purpose for whi
  • ist.. 100 Pac, 24S. 251. 252; 155 Calif.. 215.) T (■!'))}>< of hotuh. — AAliilc numerous changes have been made in the terms imj^osed for the piiyment of bonds, the most common clause provides iPor a 20-year period, during 11 years of which no part of the principal stun is re])aid. At the exjiiiiition of the eleventh yeai" not less than 5 per cent of the princijial of the whole amount iind number of bonds is reipiired to be ])aid, and yearly i^ayments on the jirincipal are made thereafter at a gradually increasing rate, which reaches 15 per cent for the nineteenth year. The balance, if any, is i>aid at the close of the twentieth year. Thus the auntuil interest burden each year after the eleventh lessens while the amotint of the princijial re- quired to be met increases. The terms of repayment are mandatory: Where the statute has fixed the term for which bonds shall run. bonds in which iiavment is undertaken at the expiration of either a .sht)rter (People's Baidc r. School District. 8 N. D., 496; 57 N. W., 787; 28 L. R. A., 642) or a longer term (Neitou r. Town of Dyersbur.i;, 127 U. S.. 160; S Sup. Ct., 1111; 32 3 3 HANDBOOK OF IRRIGATION DISTRICT LAWS. ].. Kd., 8.".: Baruuin r. Okoloiia. 148 U. H., 393j 13 Sup. Ct., 63S ; 37 L. Ed., 495) tliaii tliat autliorizeil are invalid." (Id., p. 2~)2.) Later statutes tend to ^ive elasticity, and permit the district to issue bonds payable over diii'erent and fjenerally longer periods of time and i2;ive elasticity to the matter in various ways. The bonds nuist bear interest, generally at (> per cent, payable semi- annually, and may be sohl by the board unck'i- most statutes at 90 ])er cent of par value, though in some cases the re<|uiiement is not less than 85 or 95 per cent, and one or two statutes prohibit the district from disposing of the bonds at less tlian par. iVef/of/'t/hJI/'f//. — The courts have fully upheld the negotiable char- acter which the legislatures have sought to stamp upon irrigation district bonds. The United States Circuit Court of Appeals for the Eighth Circuit in the ca.se of Shelton r. Cas Securities Co. {'2W P>d., €53, G59), said of irrigation-district bonds: 01>li. nations of tliis nature are sultject to tlie same I'ules as otlier ne.i;'otial)le paper. (Cromwell r. ("ounty of Sac. 9() U. S.. .')! : 24 L. Ed.. (JSl. i "These l)on'ds were intended for sale; and it was rationally to l)e expected that they wovdd ju the issue of tiie bonds and iiave I'eceived the full benelil (»f their proceeds. (Id., p. 19.) Irrigation district bonds are nevertheless ne<>-otiable, althou Pac, 8!)0, 401; 2U Wash.. 10.) jSeaa^iti/ J)ehind the honch. — As will be noted from the discussion of the methods of assessment and le\ y, undertaken below, the entire landed value is subject to assessment for district [)ur[)oses. and in the context relatino- to bonds the statutes co'itain substantially the pro- vision that the bonds and interest shall be paid l)y revenue derived from an annual as.sessment ui)on the real ])roperty of the district, and that ''all the real ])ro])erty in the district shall be and remain liable to be assessed for such i)ayments."' Some statutes nuike additional j)rovision that the bonds shall be- come a lien upon all the water riohts au'l other property acquired by any district and ui)on its canals. waterwv)rks, aiul other proi)eity, o-ivino- the riiiht to the holders of bonds to take possession of the property of the district and to control the s*une until the lien can l)e enforced in a civil action by foreclosure. (Eeminoton Codes and Statutes of Washinoton. sec. ()482, and ()re<>on Laws of IDIT, p. 757.) In many cases such possession woidd be as mtich a liability as an asset, for it would unquestionably be burdened with the duty of de- livering water to the farmers. Be this as it mav, it should be noted that the Supreme Court of California has held a provision in the amendatory act of IHDH that a l)oard of directors of a district shall have the power to pledtje by mortgage, trust deed, or otherwise, all property of the district as additional .security for the payment of bonds to be unconstitutional. The view was talaMi that this provision Avoidd be in conti'a\ention of the constitutiontd prohibition against the delegation of the possession and management of the property of public corporations. (San Diego v. Irr. Dist.. 77 Pac. 0:)7 : 111 Calif., 329.) The Federal Circuit Court of Appeals for the Ninth District in interpreting the California act, has decided that the irrigation dis- trict bonds "constitute a general obligation of the irrigati(m district to pay the princii)al and interest thereof as therein ])rovided for, and that a bona fide holder of such bonds is not limited to anv particular fund." (Rialto Irr. Dist. v._ Stowell, 246 Fed., 294, 305 (1917).) The court quotes, from a decision of the Supreme Court of the TTnited States as applicable to irrigation di.strict bonds, the following state- ment : Experience informs us that llu' city wotdd have met with s(M-ious, if not insuperable, obstacles in its ueirotiations liad the bonds upon their face, in 40 HAISTDBOOK OF IRRIGATION DISTRICT LAWS. unmistakable terms, declared that the purchaser had no security beyond the assessments upon the particular property improved. If the corporate* authori- ties intended such to be the contract with the holders of the bonds, the same good faith which underlies and pervades the statute of ^Nlarch 2. 1871, required an explicit avowal of such ])ui-pose in the bond itself, or, in some other form, by langua.ue, brou.alit home to the purchaser, which could neither mislead nor be misunderstood. (Id., jt. 305.) In brief the tangible security behind irrigation district bonds con- sists of the total value of the real estate within the district benefited by irrigation, and this security is made available through the powers of taxation. These powers must be exercised by the executive offi- cers of the district who may or may not be county officials as well. But this phase of the subject is presented beloAv (p. 54). Immunity from taxation in California. — The salability of bonds of California irrigation districts has been greatly increased for the local public, among the bonds of othei- classes of public and quasi-public corporations, by the enactment by the people of the State of the following constitutional amendment : All bonds hereafter issued by the State of California, or by any county, city and county, municipal cori)oration, or district ( includinjr school, reclamation, and irrigiition districts) within said State, shall be free and exempt from taxa- tion. New section adopted Nov. 4, 1902, as sec. If of Art. XIII.) Various doctrines protecting hondholders. — The effect upon the bonds of proceedings for the exclusion of lands (p. 78) and for the dissolution of the district is discussed below (p. 85), as is also the construction which has been placed by the courts upon decrees in con- firmation of irrigation district bonds (p. 47). These features, there- fore, will not be treated at this point. There are, however, several additional safeguards which the courts have placed about irrigation district bonds following -the underlying principles invoked in favor of the securities of public corporations in general, which should now be briefly outlined. When irrigation district statutes are amended in some fundamental fashion, provision is frequently made that as regards indebtedness previously incurred the former law shall remain unchanged. (See Harris v."Tarbet, 57 Pac, 33; 19 Utah, 328.) But irrespective of the statutory provision, under familiar principles the courts do not tolerate an amendment of an irrigation district act to be so con- strued as to lessen the security of the bondholders. The irrigation district law constitutes in theory a contract between the State and those who have availed them.selves of the act. The Supreme Court of California, in holding an amendatory act contrary to the constitutional prohibition against the enactment of any law impairing the obligation of contracts, expressed the following views : The act providing for the organization of the district, and the organization of the district inider the provisions of the act by the vote of its electors, can not he otherwise regarded than as a contract between the State and the individuals whose property was thereby affected. The contract, iiuleed, lacks one of the ordinary elements of contracts, namely, the actual consent of all the parties to it, but by the provisions of the statute, the majoriy of the electors were, empowered to act and consent for the individual proprietors ; ami, unless this Avere a legitimate exercise of the powers of the State, the statnle itself would be invalid. (Merchants' National Bank of San Diego v. Escondido Irr. Dist., 77 Pac, 937, 939; 144 Calif., 329.) In Oregon an amendatory act changed the officers by which assess- ments were made, and altered the method of assessment from a flat BONDED DEBTS. 41 rate per acre to the beneficial rate. Tliese cliangjes were held to be legislatiA'e questions " with which we have nothing to do, and, stand- ing alone, these changes have no bearing upon the obligations of the bonds." The law. however, furthermore so changed the times of collection and delincjiiency that the necessary funds would not be available for the payment of interest upon the bonds at the proper time. The court held tliat this amendatory pi'ovision, if made effec- tive as regards the assessments to meet tlie bonds previously issued, would imi:>air the contract of the bondholders, and I'eached the con- clusion that "therefore, the amendment can not apply to obligations existing at the tiuie of the enactuient." ((ribbons v. Hood Tvi\er Irr. Dist., 133 Pac, 77-2; 06 Oreg. (1913), 208.) The status of irrigation districts when acting as de facto cor- porations has already been touched npon (p. 17). The trend of the decisions is toward recoonizino- as valid l)onds of these de facto ii-rigation districts. In the case of Miller /•. Perris Ii'ri. Dist.. 99 Fed., 143, a decree was gi-anted declaring the proceeding for the organization of the irrigation district void. This, however, was held not to impair the obligation of the bonds, since the disti'ict had been exercising the powers under the law as a corporation in fact. The court held as follows : From tlie doctrine thus aiinoiiiiced it follows, in my oiiinion, that thr judg- ment set ui) in the sui)]»l(Miieiital ]»ill, deelarin.i;' void the pi-oceedin.us for the organization of the Perris irrigation district, (hies not impair llie validity of, nor afford finy ground for equitable relief against, obligations incurred prior to said judgment. (Id., p. l.")0, citing Sliai)leigh r. City of San Angelo, K57 U. S., 646. and other authorities.) The Supreme Court of the United States has held tliat. irrespec- tive of a decree in confirmation and aside from the rights of the bondholders as bona fide purchasers, both the landowners and the district must make timely objection to the issuance of bonds if their attack is to avail. The court declined to consider the defects in the organization which were urged as rendering the formation of the district invalid, and held as follows: In addition to the strength of the ])osition of the plaintiH' in llie action as a bona fide purchaser and holder of the bonds, the position of the defendajus merits due consideration. Regarding the individual defendants, it is scarcely l)ossible to believe that they were not aware of the proceedings above recited taken to organize the corporati(m, and thereafter to issue its bonds, evi>n though it should be admitted that the published notice was not legally sulli- cient to comi)ly with tlie statute. They were the owners of land within the proposed district. The proceedings were all of a public nature, aii(>7 : Circuit Court of Appeals, Ninth (Mrcuit, 11)1.-..) Cotifrnutfion of bonds. — All the statutes provide for proceedings in local courts, either discretionary or mandatory upon the board, for the confirmation of the proceedinos, for the authorization of the bonds, and the oroanization of the district. Since the scope of judi- cial confirmation in irrigation district hnvs has broadened to include several matters other than the issuance of bonds, it has l)een deemed better to treat confirmation as a matter for discussion separate from the subject of bonds. The reader should accordingly examine the material otfered under the head of ''Confirmation proceedings" in this connection, as he Avill find one of the most iuiportant safe- guards of the bonds outlined thereunder. R(f/lKfr((fk)n and cviti-fi cation of l)ondi<. — It is obviously to the advantage of both the irrigation district and the public to throw every possible safeguard around the bond issues, at once protecting the holders of the bonds and giving the district paper a stability in value and a standing in the financial markets. About half of the States have adopted some method whereby the bonds of the district, after being confirmed by the court, are regis- tered and certified by some agency of the State or connty, generally the connty treasurer or the State engineer. This action is made compulsory in .some States, it being provided that no bonds shall be valid unless they are registered and bear the indorsement of the proper officer showing compliance with the law. The certificate is indorsed npon or attached to the bond, and is always available as evidence that the forms of law have been observed in its issuance. These statutory certification requirements are of two clas.ses. In the majority of the States which require certification it is provided that a State or county official named .'-hall certify npon the bonds that the district has taken the statutory steps necessary before bonds are authorized, generally including judicial confirmation. It does not mean, however, that the certifying officer has investigated the stand- ing of the irrigation project as a feasible undertaking, nor the bonds as a legitiuiate and safe investment. Landowners might in .several of the States organize an irrigation district and comply with the forms of law without any supervision having been given to the district from the standpoint of feasibility.^ In Colorado the State treasurer may invest certain State funds in the bonds of irrigation districts which have been legally confirmed, but only after the State engineer has certified that the works so financed are completed for the successful irrigation of the district. ' Protection again.st this contingency is fiirnished by several States In the requirement thai the State engineer sliall be called upon to perform certain functions described in this discussion (p, 10). BOXDED DEBTS. 43 Not more than 10 per cent of the total bond issue of any one district may lie so purchased. (Mills Ami. Stat., 1912. sec. 5808.) Sdtiic — Cei'ti-ficiii'ioti of project f((i,.s!hir(fi/. — A certification ])lan lias been ado))ted in California and ()re<>"on. liowever. which oti'ers to the investor not merely security that the law has been comi)lied with, but also assurance as to the chai-acter of the inxestment by the State engi- neer, the attorney ovneral and superintcTident of baidvs followino- ari in\esti<>'ation of the pi-oject. Ste]3s lookiniT to certification are discretionary with the board of () i)er cent in Cali- fornia and 50 ])er cent in Oregon) of the total market value of the lands within the district the water rights and irrigation works owned by the district, or to be acquired or constructed with the ])roceeds of any bonds of the district, the bonds will be entitled to certification by the State controller u]) to an amount named in the report of the connnission as the lawful ])ercentage limitation. The certificate of the State controller is attached to the bonds. Tt states in effect that the bonds have been ajiproved in accordance with the act of the legislature as legal investments for all trust funds and for the funds of all insurance companies, banks, and trust companies (and in California. State school funds also) : that they may be de- posited as security for the performance of any act whenever bonds of Muv county, city, or school district might be so deposited: and that they may l)e used as security for the deposit of public money in banks in the State. Subsecjuent issues of bonds may be made availal)le for certification n])on like proceedings by the same district, but after any of the bonds of a district ha\e thus l)ecome entitled to certification by the State controllei'. it is declared uidawful for such district to issue bonds that will not be entitled to such certification. California fui'ther provides that no expenditure of any kind shall be made from the construction fund of a district after its bonds have been certified as legal investments without the consent of the commis- sion ; and that no obligation may be incurred against said fund with- out the previous authorization of the commission. Xo expenses of any kind may be incurred by such district in excess of the money actually provided by levy and assessment or otherwise. (Gen. Laws, Oreg., lOlT, pp. T7T-T80; Calif., act of June 13, 1913, amended L., 1917, p. 582.) Such a law offers much in the way of security against efforts in the nature of wildcatting and speculation at the expense of the investor and represents un(|uestionably a bona hde effort to enhance the stand- ing of the irrigation securities in the market. The likelihood of the owners of land embarking upon an irrigation project and securing the formal cooperation of local county officials and selling bonds under 44 HANDBOOK OF IRRIGATION DISTRICT LAWS. conditions of doubtful feasibility is much greater than is the prob- ability of high State officials indorsing, after investigation, an enter- prise having insufficient basis. /SaJe of bonds. — Bonds of the character above outlined may be sold from time to time in such (juantities as may be necessary and most advantageous to raise money for the construction of works, after ]-esolutions declaring the intention to sell a specified amount. There- upon, in some jStates the directors may sell without advertising for bids if a sale can be made at not less than par. In other States the board must publish notices of the sale and ask for proposals to pur- chase the l)onds. It may then award the bonds to the highest respon- sible bidder, or it may reject all bids. In the latter event, the board may sell at private sale or may exchange the bonds for materials or labor in connection with the construction of its works. Fre(jUently there is no limit to the i>rice which the board may accept for the bonds where properly advertised bids have been received, but the majority of States fix a minimum price, ranging from 85 to 100 per cent of the par value of the bonds. Some of the States, however, provide that neither at puV)lic nor i^rivate sale or exchange can the bonds be sold for less than their par value and accrued interest. Retirement of honds hefore maturiti/. — In some States express au- thority is given for the liquidation of bonds before maturity, as funds become available for that purpose. The most common provision is that whene\er, after 10 years from the date of the bond issue, the fund for the payment thereof amounts to the sum of $10,000 the district may advertise for proposals for the redemption of bonds. The lowest bid is accepted, but in case the bids are equal the lowest-numbered bonds are given the preference. Xo bonds may be redeemed at more than their face value with accrued interest. In case none of the holders of the bonds wishes to sell, the money in the bond fund is invested in United States gold-bearing bonds or in the bonds of the respective States, which shall be kept in the bond fund and used to redeem the bonds whenever the holders thereof desire. RcfuridrDfi honds. — In the course of time a district may find itself so situated that it Avould be highly advantageous to renew its bonds or, through negotiation, to recall them and substitute other securities bearing a smaller rate of interest or maturing at a different date. By a grant of power to issue original bonds the authority to issue refunding bonds is not implied. (28 Cyc, loS'i.) In the' absence of express statutory enactment on the subject, therefore, the district is poAverless to avail itself of any opportunity to improve its condition in this manner. Some of the States have provided for this contingency, but there is a lack of uniformity in the various statutes on the subject." Gen- erally speaking, where such statute exists the board of directors of the district is empowered to initiate proceedings looking toward the issuance of refunding bonds whenever it deems such action necessary. The question of the issue of the bonds is then submitted to the vote of the district after notice. Some States permit the directors to ' Refunding bond laws will be found as follows : California. Deering Gen. Laws, Act 1727 ; Colorado, L. 1915, p. 319 : Oklahoma, L. 1915, pp. 536-538 ; Texas, L. 1917, p. -•09; North Dakota, L. 3 917, p. 100; South Dakota, L. 1917, p. 587. INDEBTEDNESS XOT BONDED. 45 decide the matter after due notice of hearing and afford an appeal to the courts. Generally, the' provisions are somewhat elastic, the manifest pur- pose beino- to permit the district a ]:)i'0{)er latitude in the matter of securing- suitable terms for the refuncling issue. For instance, in Colorado the date of maturity of the various series of refunding bonds may be determined by the district within the' rather Avide range of from 10 to 50. years, with the authority in the district, at its option, to issue bonds containing the provision that they may be paid at any time. Refunding bonds may not be issued for a larger amount than the obligations to be retired tliereby, nor may they bear interest greater in rate or amount per annum. The i)ur})ose of their issue should ap- pear on the face of the bonds and the bonds in lieu of which they are issued must be canceled as they are taken up. The bonds may either be sold to the highest bidder, after due notice of sale, and the proceeds applied to the payment of the outstanding in- debtedness proposed to be retired or they may be exchanged for such outstanding bonds or other evidence of indebtedness. Neither by sale nor by exchange, however, may the bonds be disposed of for less than par. All refunding bonds not used for the purposes for which they were issued must be canceled. Special taxes are levied to redeem refunding bonds, and the col- lections thereof are kept in a separate fund until applied to that purpose. Effect of changes in ells f net upon honels. — The laws provided for the inclusion and exclusion of lands subsequent to organization and for the dissolution of the district. The status of outstanding l)onds, in case of proceedings for change of boundaries and for dissolution will be found discussed later in connection with such proceedings (pp. 7S and 85). INDEBTEDNESS NOT BONDED. The States generally have placed a limitation upon the amount of current and other indebtedness, not secured by bonds, which ma}' be incurred by the directors without the concurrence of the electors. Several States expressly provide that the directors may contract obligations and issue warrants on behalf of the district in connection with the organization thereof or in making surveys or investigations to determine the feasibility of the proposed irrigation j^roject for not to exceed a specified sum or a certain amount per acre of the lands proposed to be irrigated. In most of the States, however, tliei'e is a general provision to the effect that the directors may acquire or purchase any or all proi:)erty necessary for the use of the district, and where the consideration to be paid for such property is not more than $10,000 the board need not secure the concurrence of the electors. But where the consideration to be paid is in excess of $10,000 and less than $'25,000 the contract must be ratified in writing by at least one-third of the qualified electors according to the number of votes cast at the last election. No contract in excess of $25,000 may be made without being first authorized by an election held in the same manner as is provided for elections on bond issues. •X J HANDBOOK OF IRPJGATIOX DISTRICT LAWS. In California. ^Montana, and AVashinoton tlie rule is more scientific, the limitation being based upon the acreage of the district involved. The provision in the first-named State is that contracts anioiniting to more than $1U,U00 in districts of 50,000 acres or less, and contracts of more than $50,000 in districts of more than 50,000 and less than 200,000 acres ^ are not binding upon the district until a favoring petition of the majority of holders of title, representing a majority in value of the acreage of the lands therein, has been filed with the board. As an alternative the petition may be signed by 500 electors representing not less than '20 per cent in value of the lands of the district. (L. 1U17. p. 757.) The provision of Montana, however, is more elastic. There the district board may in any one year incur obligations for organiza- tion and general purposes in an amount not to exceed $1 for each acre of land within the district (L. 1913, p. 476), while in Wash- ington (L. 11)17, p. 785) the directors may in cases of emergency in- cur any indebtedness not exceeding in the aggregate a sum equal to 15 per cent of the total amount fixed as rates, tolls, charges, and as- sessments for the current year for the care, o])eration, maintenance, repair, and impro\ement of the irrigation works of the district. Without entering upon a discussion of what latitude should be allowed to boards of directors in the matter of pledging the credit of the district without the prior consent of the electors, it is believed to be obvious that a provision basing the power to incur liability upon the acreage of the district or upon the amonnt of its assessments is ]>referable for the reason that it adjusts itself much more completely <() the probable needs of all classes of districts than a fixed limita- tion imposed without regard to the size of the district. Warrants. — Claims against an irrigation district, other than those represented by its bond issues, are submitted, generally nnder oath of claimant, to the board of directors upon vouchers or other proper forms. When approved by the board warrants signed by the presi- dent and countersigned by the secretary are issued, stating the date on which they were authorized l)y the board and for what purpose. They are then paid by tlie treasurer upon presentation to him. But if funds are not available, indorsement is made and the warrant draws interest from that date until ]:)aid or until notice that funds are availal)le for ])ayment. When. there is $100 or more in the hands of the treasurer a\ailablc for the retirement of thewarrants, it shall be applied to their payment. The district treasurer must keep a record of the warrants presented for payment with the date of presentation, and when funds are avail- jible they nnist lie paid in the order of their presentation. It is provided in some States that no irrigation district may issue warrants in any one year in excess of 90 per cent of the levy for such year; but in case of due and outstanding oldigations against the dis- trict on account of operation and maintenance or current ex])enses incurred prior to the year for which any levy is made, the district board may make an additional levy, within certain specified limita- tions, to create a special fund for the payment of past due obligations. While the foregoing general statement represents the statutes of ^ Therp is. however, unfortunately an ambiguity at thjs point in the act and a con- fusion exists in the requisite acreage. ('()XFIi;.MATH)X PROCKKPIXGS. 47 (liose States which h;i\e i)ass('(l detailed eiuu tiiient> on the subject, tiiere aiv a iiiiinber of legislatures which have contented themselves Avith less couipieluMisive laws. Several, for e.\anii)le. niei'ely i)resci'ibe that disbursements by the district treasurer shall be made only upon ^varrants or orders signed by the president and countersigned l)y the secretary of the district. On the other hand. Oregon, in addition to general provisions about as outlined abo\e, limits the total amount of outstanding warrants for the i)ayment of which there are no funds innnediately available to the sum of not to exceed $1 per acre. Colorado authorizes the retirement of warrants by aii issue of bonds in lieu thereof in all cases w'hei'ein bonds might lawfully have been issued in the first place. The issue of bonds to i('i)lace waiiants previously issued is subject to the general i-ules goM'i-ning tiie au- thorization of bonds. (See L. Oreg., 11)17, p. 7(51; M. A. S. Colo., 1912, sec. 3979a.) Irrigation district warrants have been held not to be negotiable in- struments in the sense of the law jnerchant. and any defense which might properly have been urged against the original i)ayee may be enforced against the assignee even though he be a bona tide pur- chaser. (Danbv r. Starlight Irr. Dist.. 157 Pac. lOGO; 80 Oreg, (19if;),()i9.) Con kti; af attox PHocEEnixos. One of the most important features of the irrigation district law is the })rovision which has been made for secui'ing a decree in con- firmation of the acts of the district. The original " confii'mation act '' was adopted by California in 1889 as an enactment sui)ple- mental to the irrigation-district law. Similar confirmation acts were adopted in all States having irrigation-district laws. Object. — Tlie intention is to eliminate fraud and to give irrigation- district bonds a better standing with jjrospective purchasers by the securing of judicial evidence of the regularity of the proceedings of the district, and by reducing the evidence to a judgment, through the doctrine of res judicata, to forestall all future ijuestions a,s to the validity of the steps taken. The ]»urpose of the act of I.SSO. in iirovidinu- for .-in ;iil.jiHlic;ii inn .-is to flio validity of tlie district, was to furnisli a liarrici- airainsf su!ise<|iu'nt attacics upon the ground of sucli fi-ands in lh*> organization of \\iv district, and thorchy to protect its iioniilioidoi-s. (Fogg r. Pen-is Iia'. I)ist., 07 I'ac. IM{\, H18: 154 Calif., 209.) Tlie object of tlic iirocccdiiiL:' iv, of conrsc. to compel c\cry jierson interested in the district and wliose i)r<)ite!'ty is to hv bound for th(> payment of its debts lo come into court and within the time limited i)r(>sent and submit to judicial investigation any and all objections he uiiiy have to the regularity of the or- ganization of the district and all other matters affecting the validity of tlie Ijonds. so that it may be tinally and conclusively determined by a judgment which neither he nor his successors in iiderest can thei-t>aftei' question, whether such bonds are legal and valid or not. (I'oard of INFodesto In-. Dist. r. Tivgea, 26 Pac, 237, 238; 88 Calif.. 334.) /Scope of confrmaf'tot}. — While the scope of the confirmation act at first related solely to the issuance of bonds and conferred jurisdic- tion upon the court for the confirmation of organization ])roceedings only as incidental to the confirmation of bonds, the idea has devel- oped in several of the irrigation-disti'ict St sites far beyond the bond feature. 48 HANDBOOK OF IRRIGATION DISTRICT LAWS, In all of the laws, except those of AYyoming and Kansas, provi- sion hcis been made for a decree in confirmation where contract is en- tered into between the district and the United States Government pursuant to the Federal reclamation laws. Several of the statutes expressly gi*an1^ jurisdiction to the court to pass not only upon the validity of the steps taken to authorize the contract with the United States but also upon the validity of the terms of the contract. Idaho has also ])roAided for the confirmation of the apportionment of benefits to become the basis for assessments to be made and levied for district jnirposes. I'tah and Xe^ada have followed Idaho in this provision. In Xew Mexico provision is made for the confirmation of assessments and awards of damages for drainage work and for proceedings for changes of boundaries, (See Idaho L., 1915, p. 391; Nev. L., i91T, p. 270: Utah L., 191T, p. 91; Xew Mexico L., 191T, p. 80.) In California provision has been made for the confirmation of assessments as well as of bonds. (Deerings General Laws, sec 68, p. 696.) The confirmation idea has been most broadly and beneficially am- plified by the Oregon Legislature, wherein provision is made for the judicial confirmation of all proceedings provided for in the irriga- tion-district law. In that State the board is given discretion to bring confirmation ])roceedings for the organization of a district ir- respective of any pro])osed bond issues or contract with the L'nited States, or for proceedings for the inclusion of exclusion of lands, or to confirm the result of any general or special election, or any order levying any general or special assessment, or ordering the is- sue of any bonds. (Oreg. L., 1917, p. 773, sec. -41.) The statutes sometimes merely permit and sometimes require the bringing of these proceedings, and in a. few States where action is discretionary witli the board iiny taxpayer may bring the ])roce€ding if the board shall fail to do so. Statutory procedure. — The statutory provisions for confirmation follow along similar lines in the various States. It is generally pro- vided that petition be filed with the court by the district board praying for confirmation and stating that the district was duly organized and the first board duly elected, but not necessarily setting forth the facts showing such organization. After the fixing of time for hearing upon the petition the clerk of court nnist give notice of hearing, for a period generally of two or three weeks, notifying all persons interested to demur to or answer the petition on or before the date of hearing. The general i-ules of pleading and practice of the State are made applicable to this proceeding. The proceeding is one in rem and constructive notice by ]Dublica- tion without personal service has long been held to be sufficient. (Crall r. Poso Irr. Dist., 26 Pac, 797; 87 Calif., 110: Board of Modesto Irr. Dist. v. Tregea, supra : Hanson v. Kittitas Eec. Dist., 134 Pac, 1083: 75 Wash^ (1913), 297; Little Willow Irr. Dist. v. Haynes, 133 Pac, 905: 21 Idaho (1913), 317.) Jurisdiction of court. — Upon hearing the court is granted juris- diction to examine and determine the legality and validity of and confirm each and all the proceedings for organization and for the issuance of bonds and the sale thereof, or for authorization of con- tract with the United States or the proceedings for such other action as may be before the court for confirmation, with the power to con- CONFIR:\rATIOX PKOCEEDIXGS. 49 firm the procoodiiio-s in part and to disapprove and declare i]lep;al such portion of the proceedings as shall be invalid. The conrt is generally expressly required l»y statute to disregard any erroi- which does not afl'ect the substantial rights of the parties if the proceedings shall have been otherwise fairly conducted. The latter provision is i-eferred to by the Idaho Supivnie (\)urt as a connnand to place a liberal construction u|)on the irrigation district act. (Xainpa & Meridian Irr. Dist. r. Brose, 83 Pac,, 400: 11 Idaho, 474.) The irri- gation district must snstain the burden of proof in confirmation pro- ceedings. (Fallbrook IiT. Dist. v. Abila, 30 Tac. 703; lOG Calif., 355.) The court in the Idaho case last cited ludd tliat confirmation proceedings mav i:)recede the sale of bonds. (Xampa & jVIeridian Irr. Dist. r. Brose, 83 Pac. 400 : 11 Idaho, 474.) The I'ight of review on confirmation proceedings is confined to the evidence contained in the i-ecortl of tlie board and brought before the court. If the person controverting the findings of the board wishes to have the facts reviewed, he must cause a record of the evidence to be l)rouaht l)efore the court. (In re Board of Directors of Wenatchee liec. Dist. v. Kimball, 157 Pac, 38, 40; 01 Wash., GO.) Appellate pi'oceedmgs. — The earlier irrigation district laws pro- vided for appeal from the decree in confirmation within the brief period of 10 days. The newer statutes have tended to grant a longer period for appeal. The limitation imposed by statute has been nni- formlv uphelcl by the courts. (Palmdal^ Irr. Dist. v. Rathke, 27 Pac, 783: 10 Calif., 358; O'Neill v. Yellowstone, Irr. Dist., 121 Pac, 283; 44 JNIont., 402; Imperial Land Co. v. Imperial Irr. Dist., 161 Pac, 113: 173 Calif. (lOlG), G60.) All parties are preclnded from object- ing to the decree rendered unless appeal is taken within the period prescribed by the legislature. No period contained in any act has been held to be so brief as to be nnreasonable and on such ground unconstitutional. Yalidity of con^fiTvuttion proceedmqs. — In the year following the ]>assat>e of the California confirmation law^ the supi-eme court of that State considered the eifect and constitutionality of the act and declared that the statute set np a proceeding in rem, and hence all the world is bound although personal service was not given of the adjudication. The decision was that of Crall v. Board of Directors of Poso Irr. Dist. (26 Pac, 707: 87 Calif., 140). Federal Supreme Court douhffid of decree. — Shortly afterwards the case of Modesto Irr. Dist. v. Tregea (26 Pac, 237; 88 Calif., 334) was decided by the same coui't with identical effect as to the confirma- tion act. The defendant in the latter case, however, sued out a writ of error to the Supreme Court of the United States upon the ground that the operation of the statute nesulted in depriving him of i")rop- erty without due process of law. (Tregea v. Modesto Irr. Dist., 164U. S., 170.) Mr. Justice Brewer, rendering the majority opinion, declared that at the outset " we are confronted with the question whether, in advance of the issue of bonds and before any obligation has been assumed by the district, there is a case or controversy with the op- posing parties, such as can be submitted to and can compel judicial consideration and judgment." (Id., p. 185.) The court pointed out 1G0047— 20 4 50 HANDBOOK OF IRRIGATION DISTRICT LAWS. that unless the board should proceed with tlie exercise of the power to issue bonds the labor of the court would be spent in determining " a barren right — a purely moot question," and took the view that the Federal Supreme Court is not concerned with any question as to Avhat a State may require of its courts nor what measures a State " may adopt for securing evidence of the regularity of the pro- ceedings of its municipal corporations," and moreover' said: It may well be cionbtetl whether the adjudicatiou really binds anybody. Sni^pose the judgment of tlie court be that the proceedings are irregular, and that no power has been by them vested in the district board, and yet notwith- standing such decision the board issues, as provided by the act, the negotiable bonds of the district, will a bona fide purchaser of those bonds be estopped by that .iudgment from recovering on the bonds against the district? The doc- trine of lis pendens does not apply. Neither is any such adjudication binding, in respect to negotial)le paper unless the party purchases with knowledge of the suit or the decree. * * * But if a judgment in such a proceeding as this can not be invoked by tlie district as res judicata in an action brought against it by the holders of i)onds thereafter wrongfully issued, can a judgment in favor of the power be invoked by the holder of such bonds as conclusive upon the district upon the ground of res judicata? In order to create estoppel by judgment must there not be mutuality? We do not mean to intimate that it may not have effect as evi- dence, like the certificate of an auditor declared by a legislature to be con- clusive, but is it not simplv as evidence and not as res judicata? * * * (Id., pp. 1S7. 188.) It should be noted, hov\'ever, that the court did not approach the view that the confirmation proceeding was nugatory, although it declined to consider the doctrine of res judicata as applicable conse- {juent upon the decree. The court's view is that the proceeding is a statutory method of securing evidence, and, from tlie context, ap- parently conclusive evidence, of the facts covered by the decree. To quote the conclusion reached : It seems to us that this proceeding is. after all, nothing but one to secure evidence, that in the secui-ing of such evidence no right protected by the Constitution of the United States is invaded, that the State may determine for itself in what way it will secure evidence of the regularity of the pro- ceedings of any of its municipal corporations, and that unless in the course of such proceedings some constitutional right is denied to the individual, this court can not interfere on the ground that the evidence may thereafter be used in some further action in which there are adversary claims. (Id., p. 189.) Justices Harlan, Gray, and Brown dissented upon the ground that it was the duty of the Supreme Court to determine the Federal ques- tion raised by the pleadings and determined by the judgment of the State court, and further expressed the oj^inion that the conclusions of the State court should be sustained and its judgment af- firmed upon the principles the same day announced in the case of Fallbrook Irr. Dist. v. Bradley (164 U. S., 112). wherein, as will be pointed out in the discussion of the general subject of con- stitutionality the irrigation district law of California was fully upheld.^ State courts all uphold adjudication. — Some critics have regarded the foregoing vieAv of the United States Supreme Court as in the nature of obiter dictum, for the reason that the writ of error was. dismissed for lack of jurisdiction rather than decided upon its merits. * Both of these cases were decided by the Federal Supreme Court on Nov. 16, 189(5. COXFIRMATIOX PEOCEEDIXGS. 51 Be this as it nia3% the opinion of Mr. Justice Brewer has been foHowed by nono of the many decisions in State supreme courts npon appeal froui conlirmation proceedin«:s below. In fact the view in Tregea decision has been expressly lepudiated by the Supremo Court of California after most careful consideration of the opinion in that case. The court makes the following statement : It is to be regretted tliat the opportunity did not present itself to that court at that time to test the validity of the act in the crucible furnished by the Constitution of the rniled Stiites. ist. 01 I'ac, SG, 88; 128 Calif., 477; and see also Title & Doc. Kestn. Co. (". Kerrigan, 88 Pac, 3-50; l-'iO Calif., 280.) Quotation might be made from a score of State courts of last resort. Among the cases upholding the confirmation statutes, these may be noted : Kinkade v. Witherop (69 Pac, 399; 29 Wash., 10) ; Nainpa & Meridian Irr. Dist. v. Brose (83 Pac, 499; 11 Idaho, 474) ; Anderson v. Grand Valley Irr. Dist. (85 Pac, 313; 35 Colo., 525) ; Alfalfa Irr. Dist. v. Collins (64 N. W.. 1086; 46 Nebr., 411) ; Han- son V. Kittatas Eec Dist. (134 Pac, 1083; 75 Wash., 297). Efeet of fraud upon confirmation proceedings. — The California case of People v. Perris Irr. Dist. (76 Pac. 381; 142 Calif., 601), left the law as to the eft'ect of fraud in the formation of irrigation districts upon the confirmation decree in such shape as to afl'ord diminished assurance to the creditors of these public corporations. In the case of Fogg v. Perris Irr. Dist. (97 Pac. 316; 154 Calif., 209). however, the law was satisfactorily clarified in the conclusion reached, as follows: It could not have lieen contemplated or intendeil that the existence of such fraud would always be open to inquiry, notwitlistandiiig such adjudication, nor that, if subsequently shown, it would prove that the court, in the conlirma- tion proceedings, had no jurisdiction to act at all, and that its decree was void. We tliink, therefore, that upon the face of the record, jurisdiction of the orig- inal proceeding was shown to exist, and that the fraud alleged, although sufTi- cient to have made the oi-ganization invalid if shown tipon the hearing of the proceedings for contirmation, was not sufficient to deprive the court in that proceeding of jurisdiction to make the adjudication whicli is here sought to be vacated. (Id., p. 318.) Binding character of decree — Effect upon State. — The confirma- tory decree is held to have the broadest possible effect by all the State courts which have passed upon the question. The fact that no con- test is made and that service is secured by publication does not di- minish its binding character. The Supreme Court of California holds that ''such a judgment is binding upon the whole world." (People v. Linda Vista Irr. Dist.. 61 Pac, 86, 88; 128 Calif., 477.) As regards the etfect of a decree in confirmation upon the govern- ment of the State wherein the district is situated, it was held in the same case as follows: We can not imagine a judgment in rem to which the State woidd not be a party. * ■■' '^ When we look at the i)uri»ose of this act, as indicated by its face and as more clearly indicated by the decisions of this court, it is apparent that tliere nevei- was any int(>ntion upon the part of tlie State legislature that the State should l>e allowed by quo warranto, «»r in any other way, to attack the organization of these districts after a judgment of confirmation had been 52 HANDBOOK OF IRRIGATION DISTRICT LAWS. had. If that couhl be done, then the entire confirmatory act is nseless legis- lation — a mere nnllity. (Id., p. 89.) This doctrine has been followed by the State courts without excep- tion. The Idaho cases of Nampa & Meridian Irr. Dist. ^^ Brose (83 Pac, 499; 11 Idaho, 474) and Progressive Irr. Dist. v. Anderson (114 Pac, 16; 19 Idaho, 604) may well be read. In the last-named case the j^roceedings were brought for the confirmation of the ap- portionment of benefit assessments. Revenue, GENERAL, Provisio>is for jrvemte fundamental. — The irrigation district law is primarily a means for carrying out irrigation plans and to that end for establishing between the district and its creditors funda- mentally correct relations. As such the crux of the law obviously rests in the adequacy of the methods and the soundness of the basis for revenue which is provided. In the relations between the debtor and creditor it is fundamental that the security of the creditor shall be primarily assured, and that the lands of the district in their entirety shall secure the debt. It is the province and duty of the district and its officers and the supervisory State officials, wherever there be such, to assume all the lu'oject hazards rather than to shift upon the creditors any portion of risks of the enterj^rise. Responsihillty of district and creditoi'S is not joint. — It is difficult to conceive of an irrigation district' system based upon any form of joint responsibility between the district and its creditors as to the feasibility of the plans or as to the management of district affairs. It is clearly the business of the local people to make them- selves thoroughly conversant with the conditions of soil, climate,- water sui^ply, markets, and the effect of the engineering and legal difficulties, subject to supervision of State officials, and also to safe- guard the expenditure of the moneys in construction work and in the general conduct of the project. So long as the district has com- plete conti'ol of the system they should bear full responsibility for its success or failure. A tendency to he avoided. — There has been a tendency, however, in some quarters, to release tracts of land from liability upon pay- ment of their pro])ortionate part of the debt. This tendency has been shown in legislation in Montana and Colorado, and in a decision of a Federal district court in Colorado. Both the statutory provi- sions and the decision referred to will be discussed below under the head of assessment and levy. (Infra, p. 57.) Any statutory provision or decision of court which tends toward lessening the security of the creditor by loosening the obligation which the district lands as a body owe to the creditors is pernicious. If there can be apportioned against tracts of comparatively small value, but still deemed irrigable, a proportionate part of the debt, and if, in case such tracts are unable to pay the assessments levied against them, the portion of the debt so assessed may not then be collected bv assessments against other lands of greater value, the security of the creditors is greatly diminished. REVEXUE, 53 Importance as regards drahiage. — This is particnlaily important as regards drainage. As pointed out, in another connection seepage troubles in o-onoral must be expected, and if tlie hinds of the district in their entirety are not ])ehind tlie debts of the district for assess- ment, reassessment and, if need be, sale, the. creditor must, if he be wise, ascertain at his peril and in advance, what lands the direc- tors ai-e going to declare iri'igable. the worth of all tracts, what the possibilities of seei^age troubles are, and what the people, in the absence of responsibility by the district as an entirety, will do to afford drainage to the threatened areas. Such clearly is a burden that the creditor can not carry successfully' and will not willingly assume, for under such a law he must under- take a joint risk with the district landowners without having any share in the power of choice in any vital question. This would strike at the root of the present irrigation district plan. Where the eguities are to he found in case of loss. — It must be admitted that Avhere the owners of district lands have suifered un- foreseen hardships and losses, either through miscalculation as to the feasibility of a project or through the mismanagement or the fraud of the promotei's or officers of the district, there is a resulting injustice to the morally innocent which may appear to legislatures or courts persuasive toward lessening the obligations of the district to its creditors. As between the district and the creditor, however, it would appear that the equities of the latter are morally superior under such circumstances, since it is the failure of the district to take steps necessary .to guard against mischance and loss thafi results in the reassessment of the more valuable lands. Advantages to the district of unified ftnancwl respottsihility. — Moreover, while in some particular instance a plan for apportion- ment of the debt may relieve landowners who have made a mistake, yet to landowners as a class desiring credit and legitimate oppor- tunity to develo]:) their property and secure the use of water, and to the public which is universally held to be benefited by the develop- ment of irrigation, such relaxing of the law works an injustice by destroyina' credit. Furthermore, even in the consideration of dis- trict affairs from the narrow standpoint and irrespective of credit, harmony is more apt to be secured, especially in drainage matters, as the result of all being "in together" and interested in the success of each landowner, or at least in the preservation of the paying capacity of each tract of land in the district. If the bonded debt can be apportioned and the maximum collectible from any one tract is the amount apportioned, the mutual interest is destroyed and those who " do not think the seepage is liurting them " are apt to be slow to vote drainaoe. The result is likely to be delay and loss of crops and credit. The man whose land is more favorably situated may find himself by no means imumne from financial loss due to the spread of the seepage difficulties or at any rate the deterioration of the lo- cality. Under such circumstances the creditor's position Avould at best be that of receiving but a percentaae of the amount due him and his bonds would be depreciated, while irrigation securities as a class would thus be adversely affected. A irord on cooperation. — Such commimity of interest among ir- rigation farmers is diametrically the reverse of an injustice to the 54 HANDBOOK OF IRRIGATION DISTRICT LAWS. user of water. It is rather an asset to him if properly understood. It is the principle which raises the farmers who practice irrigation to a higher level in some respects than their brothers in the humid parts of the world. Irrigation forces close cooperation in the man- agement of the water supply and thus invites it in other affairs. This circumstance is destined to make those who irrigate the leaders in modern agricultural cooperation. Sir William Willcocks. formerly director general of reservoir studies in Egypt and consulting engineer to the Turkish Government in Mesopotamia, has well said: The less<)ns of order and method are taught so thoroughly by irrigation that it is not to he .sui'prised at tliat all the ancient civilizations of the world had their birth in the irrigated valleys of the great Old World rivers. Un- civilized men could live in woods, and partially civilized ones in desert oases, but to exist in a country needing irrigation men had to be disciplined and to be amenable to laws and regulations. When hundreds and thousands of families had at first to learn the laws of nature, then apply them, and then live in accord with one another, in order to insure the irrigation and drainage of their individual holdings, true civilization took its birth. (From The Garden of Eden to the Crossing of the Jordan, printed by the French Institute of Oriental Archaeology. ) Two instruments for revenue collection. — Revenue, under the irri- gation district laws, may be raised in two ways : {a) By assessment and levy by the district or the county or both cooperating under the law in manner similar to that employed by other classes of public corporations. (&) By the imposition of tolls and charges, for operating expenses only, collected in connection with the delivery of water to the dis- trict lands. These two means will be discussed in the following pages. ASSESSMENT AND LEVY. Much the more important of the two methods of securing revenue is that of assessment and levy. It is provided that the amounts due to bondholders or to the United States are to be collected in this manner, and in all States except Texas all moneys required for opera- tion and maintenance may thus be collected, tolls and charges being generally an alternative means for securing the costs of running the system. The provisions of law prescribing the statutory machinery for assessment and levy for irrigation district purposes will not be de- tailed in the present connection. These provisions being of much importance, they are set forth rather more fully than other portions of the irrigation district laws under the headings of the various respective States. The agenmes for collection. — ^The States differ widely as to the agencies and means for assessment and levy, some statutes providing for irrigation district officers and separate machinery for assessment and collection, while others employ in full or in part the officers and machinery of the county or counties in which the district lands are situated. The county in which the major portion of the lands lie or the office of the district is situated has in such case the central responsibility. Basis and measure of assessment. — Tlie basis for valid assessment, even where assessment is made in proportion to the value of the ASSESSMENT AND LEVY. 55 land, is the fact of benefit to the market value of the land assessed. (Fallbrook Irr. Dist. v. Bradley, 164 U. S., 112.) The measure of the amount of assessment differs widely among the irrigation-district States. Under the California, Nebraska, and Okhihoina laws assessments are proportioned to the value of the real property of the district less the value of the improvements placed thereon. In Texas the assessments are made in accordance with the valua- tion of all propert}^ real and personal, witliin the district. The Utah criterion is the value per acre-foot of water allotted by the State engineer to district lands which may vary in different iniits of the same district. In Arizona, Colorado, Montana, New Mexico, Oregon, and Wyo- ming provision is made either that the irrigable lands shall be assessed at the same rate per acre or that the lands for purposes of assessment shall be valued at the same rate per acre. Assessments in Idaho, Nevada, North and South Dakota, and Washington are made in accordance with the benefit derived by the respective lands to be taxed. Of the various measures of assessment, it is believed that the bene- fit test is preferable. There are in some localities inferior lands, which nevertheless can be irrigated for pasturage or otherwise, which can not stand the same flat rate of chaige as the ordinary lands of the district. These lands, however, for pasturage, it may be, can help sustain the burden of the construction of works, and their irrigation wwij be an economic gain, or even render feasible a ques- tionable undertaking. There are, moreover, in many localities to be irrigated lands which at the formation of an irrigation district have a prior right, supplying water for only a portion of an irriga- tion season. Such lands should be compellable to be brought within the boundaries of the district and should be taxable for a supple- mentary water supply, being benefited by the increase of the period of productiveness and the crops which may be secured. The bring- ing of these lands into the district is best and most equitably accom- plislied inider a benefit method of assessment wherebj' they would be charged only for the supplemental supply. Moreover, necessary drainage works may in general best be se- cured, and the landowners are, we believe, most apt to cooperate in drainage work under a law which provides for assessment in propor- tion to benefits -obtained rather than under the flat rate or ad valorem principle.^ Assessment laws valid — Ad valorem method. — Assessment in ac- cordance with the value of the lands was early attacked under the California act. It was sustained by the supreme court of that State in the case of In re Madera Irr. Dist. Bonds (28 Pac, 272 ; 92 Calif., 296). The same method was also fully upheld by the Federal Supreme Court in the case of Fallbrook Irr. Dist. v. Bradley^ Therein the court found that it was " plain that the fact of the amount of benefits is not susceptible of that accurate demonstration which pertains to demonstration in geometry. Some means of arriving at this amount 1 In this connection the foregoing discussion of drainage by irrigation districts (p. 26) should be noted. 56 HANDBOOK OF IRRIGATION DISTRICT LAWS. must be used, and the same method may be more or less accurate in different cases involving different facts." The conclusion arrived at was that the ad valorem method was clearly no violation of the Fed- eral Constitution, but rather a matter of detail " open to the discre- tion of the State legislature, and with which this court ought to have nothing to do." The court admits that " the way of arriving at the amount (of assessment) ma}^ be in some instances inequitable and unequal, but that is far from rising to the level of a constitutional problem and far from the case of taking property without due process oflaw."^ (164 U. S., 112, 176, 177.) The Nebraska law for assessment in pi'opoi-tion to realty values, exclusive of improvements, has several times been declared consti- tutional bv the supreme court of that State. (See Board of Alfalfa Irr. Dist. v. Collins. 61 N. W., 1986; 46 Xebr.. 411.) Assessment of ^personal property upheld in Texas. — The Texas statute for assessment according to the value of all personal as well as real property in the district has been held constitutional b}' the supreme court of that State. A constitutional amendment, referred to under the special discussion of the Texas law, authorizes conserva- tion districts, including levee and irrigation districts, to assume in- debtedness above the former limit of district liability. The decision was made in the case of a levee district, under a law which, like the irrigation act, requires both realty and personalty to be assessed ad valorem, and is clearly applicable to irrigation and other types of districts when brought under the conservation district act. The lat- ter act prescribes equitable assessment, leaving the method to the irrigation district and other public corporation laws. The court held as follows : It is clear that the conservation aniendnient does not undertalve to prescribe any given rule for making the apportionment. * * * It can not be said as a matter of law that a rule which apportions taxes of this character according to the value of the i^roperty affected is one plainly arbitrary and unfair. It is a veteran rule for the apportionment of property taxes, sanctioned by inmiemorial usage and universally applied. It is the one most familiar to the people. Its general justice is not open to challenge. It is an approved method for the apportionment of taxes of this Ivind. Its adoption was a matter of legislative discretion. That the Canales Act permits tlie taxation of other than real property within a levee district for the purpose of the improvement presents no constitutional objection. It can not be said that personal property situated within such a district does not derive a certain benefit from the improvement. It, with real property, is equally subject to damage from overflow, and with perfect justness may be taxed for such an improvement. (Dallas Count.v Levee District v. Looney, Dec. IS, 1918, unreported when this material was completed.) Flat rate and heneflt assessment held valid. — Constitutionality of assessment upon a flat rate basis or a statutory requirement that the assessor value all district lands equally has seldom been construed by the courts. A law requiring assessment of all lands equall}^ was held constitu- tional by the Utah Supreme Court in Limdberg v. Green River Irr. Dist. (119 Pac, 1039). 1 The benefit criterion for assessment has been often declared con- stitutional in all forms of public corporations created for local im- provement for public purposes. Irrigation district cases are Pioneer 1 The decision related to the law of 1909 (ch. 74, sec. 19) rather than the present Utah act which, as above stated, prescribes a different rule of assessment. , ASSESSMENT AND LEVY. 57 V. Bradbury (08 l*ac., 295, 301; 8 Idaho, 310) ; Ore<>-on Short Line R. E. V. Pioneer Irr. Dist. (102 Pac, 904; IG Idaho, 578) : Cannon v. Hood River Irr. Dist. (154 Pac, 397; 79 Oreg. (191G), 71). Rchuuit'ion from linhUity of district as a whole. — Turning now to modifications of the rule that the hinds of the district shall be and remain liable. for the debts of the district, discussion of which in detail was postponed fi'om the opening i)aragrai)hs upon revenue, refer- ence is made to ceitain provisions of the Montana law of 1917. jSame — Defect in Montaitet. act. — 'J'he pai'agraph in the Montana law which outlines the lien which shall form the security behind the bonds of the district or behind the contract with the United States, as the case may be. contains the provision that in the resolution pro- viding for the issuance of bonds and in the proceedings for confirma- tion thereof, the amounts to be paid to the purchasers of bonds or to the United States, shall " be apportioned on each 40-acre tract of land and every separately owned subdivision thereof, within said district, b}^ dividing the total of the principal of said indebtedness by the number of acres of land within the district actually irrigable from its system and works, * * *." Moreover, every acre of land must be assessed for its e<]ual proportion of the debt and the interest, and any owner at the time of payment of his annual taxes may pay to the county treasurer the total sums assessed against his lands with in- terest to the end of the current year. If he so pays his land shall be discharged from the lien of the bonds and for further assessments for interest thereon, remaining of course liable for annual maintenance assessments; and the moneys so paid are placed in a sinking fund. (Mont. L. 1917, p. 333.) There are also provisions for the distribution of the lien of the debt, and for the making of a certificate showing the area actually irrigable from the works, and requiring that the levy of the tax and special assessment, or the resolution for the spreading of the assess- ment, shall specifically schedule the apportionment of the lien for the bond issue on each 40-acre tract. Similar provisions for appor- tionment are made applicable to equalization proceedings and to the confirmation of the lionds. (L. 1917, p. 335.) Modification of the law to such effect could not constitutionally be made effective to release lands from the obligation to discharge bonds outstanding when the act was passed. Hence the Montana law provides for proceedings by the district to avail itself of the benefits of the act, the filing of written consent of all bondholders being expressly a prerequisite thereto. But as to all bonds to be issued subsequently the clear effect of the foregoing j^rovisions of law is that the creditors of the district, including the United States, may be limited in their recourse to each individual tract as a separate element of security. The district as a corporate entity Avould undertake no entire obligation but acts in effect as the collecting agency for the bondholders of the United States, the individual tracts becoming in severalty the security. To reiterate, this strikes at the heart of the irrigation district idea in that the creditor, in order to be safe, must investigate every acre of land and assure himself that all the lands deemed to be irrigable are so in fact and are actually worth the apportioned amount of the delit. The bondholders under this law would become their own 58 HANDBOOK OF lERIGATIOlST DISTRICT LAWS. insurers against the contingency that there are lands of the district which may become damaged by seepage and alkali; for under the law the other landowners will lack the customary interest in seeing that jDroper drainage facilities are constructed and made effective. Smne — AHzona provision for discharge of oMigation. — Arizona apportionment provisions prescribe that upon full payment on behalf of any tract the treasurer shall issue a certificate to such effect which shall operate as a release " except in the event of a default of a dis- trict in payment of such bonds at maturity, taxes may then be levied on such tract or tracts of land to meet such deficiency, provided, however, should property so released be taxed to pay such deficiency it shall be entitled to all benefits accruing from the purchase of lands sold at tax sales." (Ariz. L., 1915, 2d spcl sess., p. 83.) This is an improvement upon the Montana provision, but gives no assurance as regards the full payment to the bondholders of interest prior to maturity. Same — Release from deht for refunding hands — Colorado. — The Colorado law for refunding bond issues provides for the ascertain- ment by the assessor of the proportionate liability of any tract of land by dividing the amount of the refunding bonds by the acreage of the district and multiplving the quotient by the acreage of the land- owner applying for relief. Upon the assessor's certificate as to the same to the treasurer, the landowner secures relief from taxation by tendering to the treasurer refunding bonds, the principal of which equals the amount found as his share of the debt. (Colo. L., 1917, ch. 85, p. 318.) Same — Dal-ota p7'ovisio7is. — The provisions in North and South Dakota for relief of lands " subirrigated to the extent that w ater is no longer of any benefit thereon for irrigation purposes," from assessment until drainage is supplied, is too lenient. Subirrigation often obviates the necessity for irrigation without injuring greatly the crop-producing powers of the district. In such cases, too, the water supply used to produce the crops comes from the irrigation system. This provision tends to lessen the security of the bond- holders and decrease the common interest in drainage measures. (N. Dak. L., 1917, p. 131; S. Dak. L., 1917, p. 550.) Duty to reassess lands upheld on appeal. — The question of whether lands are to be free from further assessment for the failure of other district lands to furnish the assessments levied upon the latter, or whether such lands are exempt when the regular proportionate amount required under just and legal assessment proceedings has been paid for them, was directly raised in a case arising in United States District Court for Colorado. The district court, basing its view upon the distinction between ordinary taxation and the assessment by the district for the local improvement purpose of irrigation, denied the power of the district officials to assess lands for the failure of other lands to produce the amount of the assessments. The court held as follows : In view of the foregoing I am of tlie opinion that the annual levies required by the Colorado act are not to be regarded in the light of levies for general taxes, and must be considered as assessments to pay for local improvements, and that the total burden thus placed upon each acre must be reasonably proportionate to the benefits receivefl. The owners can not be taxed dispro- portionately to each other. (Authority cited.) Such assessments are (mly sus- tainable when the benefits received by the property assessed are proportionate ASSESSMENT AND LEVY. 59 to the l>urflpii plafPd upon it. (Authoritv cited. ) fNorris v. ^lonteziuna Valley Irr. Dist., 240 Fed. Kep., 825, 828.) Tliis case, liowever, was reversed by the Circuit Court of Appeals, Eighth Circuit. To quote from the majority opinion delivered by Mr. Justice INIunger: The scheme disclosed by these statutes relating to irrigation districts looks to uniformity of assessment per acre for the payment of the district's indebtedness, but they also provide that the " bonds, and the interest thereon, shall be paid by i-evenue derived from an annual assessment upon the real property of the district, and the real property of the district shall be and remain liable to be assessed for such payments as herein provided " ; also, the county boards are " to fix the rate necessary to provide the amount of money required to pay the interest and principal of the bonds of said district as the same shall become due." * * * The defendants in error press the claim that a reassessment violates the statutory scheme of uniformity of taxation on each acre of these lands. * * * The legislature is presumed to have knowledge of the fact that under any system of taxation by assessment hitherto devised a portion of the taxpayers neglect to pay the taxes levied against their property for a long period after they become due. * * * It is a common provision in the State constitutions and statutes that as.sessments or levies for taxation shall be uniform upon the same class of subjects, or by value. Such provisions are not violated when, after the lapse of a reasonable time, and after reasonable efforts have been made to collect the first levy, an additional levy is made upon all the property in the district because of the failure of some of the taxpayers to pay their portions of the tirst levy. (Norris v. Montezuma Valley Irr. Dist., 248 Fed. Rep., 369, 372, 373, 374.) The court held the bondholders entitled to writ of mandamus to compel levy of assessment to meet the deficiency in payments to them. Apportiojwient of assessment annuaUy or once for all. — Most of the State laws provide for annually recurring assessment of district lands. This might be deemed necessary in the case of ad valorem assessment, although even the Texas ad valorem law provides that the tax as originally levied shall remain in force from year to year until a new levy shall be made. The Idaho law, however, providing for assessment upon the benefit principle, prescribes that after the benefits anticipated from any bond issue are ascertained and equal- ized, the amount so apportioned or distributed to each tract shall be and remain the basis for fixing all future annual assessments. After confirmation of the assessment and apportionment, no change in the apportionment can be made, but annual lev}' is made in the same proportion. This is true of any extra levy which might be necessary to meet delinquencies under the coexisting provision that all district lands shall be and remain liable to be assessed for the district indebtedness. Idaho flan discussed. — This plan has obvious advantages. It avoids annual expense, anxiety, and opportunity for controversy. There is, however, a possibility of injustice, since it is not always practicable to ascertain at so early a period in the life of the dis- trict, particularly in view of possible seepage dei)rcciation, how the final apportionment in justice should be made. It is probable that the decree in confirmation of assessment and apportionment shoidd be made expressly susceptible of being reopened h\ the court after a set period of years upon showing of manifest injustice, whereupon a supplemental and possibly final readjustment of the assessment might be made in order to accord with experience. If so amended it is believed that the Idaho assessment law would be the best yet devised. This law is not objectionable in its method of apportion- 60 HA:NrDBOOK of irrigatiojst district laws. ment of assessment upon the score of any release of lands or partial release of the debt. Nevada followed Idaho in the matter of assessment in the 1917 amendatorj' act. What lands assessahle. — The fundamental power to levy assess- ments, whether assessment be under the ad valorem, the flat rate per acre, or the benefit basis, rests upon the benefit derived from the lands to be taxed. (Fallbrook Irr. Dist. v. Bradley, 164 U. S., 112; Knowles v. New Sweden Irr. Dist., 101 Pac, 81; 16 Idaho, 217.) But it does not follow by any means that this benefit rests solely upon the irrigation of the land. The enhancement of the market value of city and town property, which admittedly never will be irrigated, justifies taxation, and that, too, ad valorem, for irrigation district purposes. Lands which can be used without irrigation, but which will be improved thereby, have been held assessable in several cases. (See In re Madera Irr. Dist., 28 Pac, 272; 92 Calif., 296; Tyson i;. Washington Co., 110 N. W., 634; 78 Nebr., 211; Fallbrook Irr. Dist. v. Bradley, supra.) Public lands of the United States both entered and unentered are assessable in the manner and to the extent prescribed by the Smith Act. Avhich is discussed aliove (p. 24). The assessment of railroad lands has also been upheld. (See Short Line v. Pioneer Irr. Dist., 102 Pac, 904; 16 Idaho, 578.) As^e! interfere with their action. If, however, the disparity between the amoimt of the assessment and the amount of the annual interest is so great as to make it appear that their action was improper, and not in the exercise of any discretion, 80 that the assessment is excessive, courts are atitliorizetl to prevent its en- forcement. Although the levying of an assessment is an act of a legislative character, yet the board of directors is not clothed with the supremacy of the legislature in this respect, but is in the exercise of a delegated power, and sub- ject to control by the judiciary if it steps beyond the limits of the power con- ferred upon it. (Hughson v. Crane, 47 Pac, 120, 123; 115 Calif., 404.) MoMdarnvs for faiJure to assess.— X writ of mandamus will issue to compel the district board or the count}' board, as the case may be, to make the assessment necessary for revenue to pay the debts of the district. (Board of Supervisors of Riverside Co.. California, r. Thompson. 122 Fed. (C. C. A.) 860; Henrylyn Irr. Dist. v. Thomas, 173 Pac. (Colo., 1918), 541; Nevada National Bank of San Francisco v. Board of Supervisors of Kern Co., 91 Pac, 122 ; 5 Calif. App., 638; State ex rel Witherop v. Brown, 53 Pac, 548; 19 Wash., 3.S3.) The Colorado Supreme Court has lield that where an irrigation district is in default in payment upon w^arrants the warrant holder can not sue to recover a money judgment, the exclusive remedy being jiiandamus. (Eio Grande Junction Ry. Co. v. Orcliard Mesa Irr. Dist., 171 Pac. (1918), 367.) Mandamus has also been held by the same court to be the exclusive remedy in case of default upon bonds. (Henrylyn Irr. Dist. v. Thomas, 173 Pac. (1918), 541.) Defective assessment.— T\\e courts are strongly inclined to support assessments made in good faith and to hold defects immaterial. For numerous defects susceptible of being waived the irrigation district case of Corson v. Crocker (161 Pac, 287, Calif., 1916) may be con- sulted. ASSESSMENT AND LEVY. 63 In another California case it was held that although no curative act can deprive a landowner of his property- or of his right to resist a pretended sale, or take property without due process of law, yet unless the landowner sues within the period prescribed for attacks upon an assessment he is precluded from resisting the enforcement of an assessment on the ground of noncompliance with any provisions of law which the legi laturc need not have laid down in order to make the law constitutional. (Imperial Land Co. v. Imperial Irr. Dist., 161 Pac, 113: 173 Calif. (1916). 660.) Moreover, the principles of estoppel apply in the matter of the .avoidance of an assessment or a tax sale. If the landowner fail to act with promptness in case of defects and irregularities, he will be deemed to have waived his right to object. (Page v. Oneida Irr. Dist., 141 Pac, 238; 26 Idaho (1014), lOS.) It is nevertheless exceedingly important that public officials charged with the duty of assessment, levj-. and foreclosure take every precaution to follow the statute precisely in these functions. Courts do not always agree as to which of the steps prescribed by law are vital and jurisdictional. The responsibility upon the officers is not onlj^ to avoid fundamental omissions which would nullify an assess- ment, but also to avoid errors which invite litigation. Then, too, there is the question of titles to be considered in all cases in which tax foreclosure follows default in the payment of the assessment. Nature of inigation district lien. — The statutes, in declaring that the lands of the district shall be and remain liable to be assessed for district purposes, and in supplementing such declaration, as a few of them do, with the proviso that the bonds shall become a lien upon all the water rights, the irrigation system, and other property owned or acquired by any irrigation district, and that the creditor upon default of the district may take possession of the district property and control the same until such lien can be enforced in a civil action (see AVash. Remington Statutes, sec. 6432), do not create a lien upon the property of any landowner. Upon the contrary it is only in connection with the annual levy of assessment, and upon a statutory date that the amount of the assessment becomes a lien upon the lands of individual owners. This is clear from the following cases: Boskowitz v. Thompson, Collector for Tipton Irr. Dist. (78 Pac. 290; 144 Calif., 724) ; Mer- chants' Bank v. Escondido Irr. Dist. (77 Pac, 937; 144 Calif., 329) ; Thomas v. Patterson, Co. Treasurer (159 Pac, 34: 61 Colo. (1916), 547) : Condit v. Johnson (139 N. W., 477; 158 Iowa (1913). 209). Relation of irAqat'ion (listHct liens to titles.— Thi^ distinction while obvious is often overlooked. It is important in the ordinary cases of the transfer of title as in the Iowa case last above referred to which held in construing a Colorado statute, that the existence of an irrigation district bond issue effects no specific lien u]ion the land nor obligates a vendor to pay in advance of assessment in order to convey title free of incumbrance. But the distinction is more important in the case of mortgage com- panies restrained by by-laws or fiduciaries restrained by statute from loaning except where mortgage prior to all other liens and incum- brances is secured. It is sometimes difficult for laymen to understand that the altera- tion of security from a private mortgage to a bond issue or a contract 64 HAISTDBOOK OF lEEIGATION DISTRICT LAWS. with an irrigation district, although the debt remain undiminished, will so operate as to remove the statutory bar to loans. The irrigation district bonds, however, are of the same legal char- acter as school district or county bonds and in no sense constitute liens or mortgages on private lands. The annual assessments of irrigation districts, however, just as similar assessments of other public corporations, become liens annually. Sitnation under Federal farm loan act. — The Federal Farm Loan Board early encountered the problem of loaning under the Federal farm loan act (39 Stat., 360), which forbade approval of loans not secured by first mortgage. The question was acute in the irrigated portion of the country where mortgage liens for payment of water charges or to secure bonded indebtedness or recoupment of water com]:)anies affecting millions of acres made loaning impossible under the Federal farm loan act. Reclamation Service liens. — A difficult phase of the question re- sulted from the fact that the Federal Eeclamation Service had liens embodied in "water-right applications" to the United States and other liens inuring to the benefit of the Government in each '' stock subscription and contract" given by the landowners to the water users' associations cooperating with the United States.' Congressional committees considered as alternative plans the amendment of the reclamation act so as to waive the priority of the lien of the United States for the irrigation costs and the amendment of the Federal farm loan act so as to permit the acceptance of a mortgage subordinate to that of the United States for the irrigation costs, but were unwilling to adopt either alternative. Legal bar removed in case of irrigation district. — The result is that irrigation mortgage liens, whether to the United States or to private persons or corporations, remain a legal bar to Federal loans. But where the costs ai'e secured by irrigation district bonds or contract with the United States and there are no mortgage liens of record therefor the Federal Farm Loan Board is able to approve loans, and is doing so both on Government reclamation projects and elsewhere, provided always that the security is satisfactory in view of all the circumstances. Where, however, there is a lien reserved in the patent no relief is yet legalized. (See supra, p. 25.)- The debts of irriga- tion districts, of course, must be taken into consideration as affecting the amount of the loan which under the law may be approved, but the legal bar does not exist where the irrigation district method as con- trasted Avith the private mortgage method is employed. The result has been that irrigation districts have been formed partly to relieve the lands incorporated therein from the private liens and at times to discharge the liens in favor of the United States and the water users' associations, and thus to obtain the benefit of the Federal farm loan act. This has been one of the inducing but not the principal or moving causes of the reorganization of irrigation dis- tricts of the projects mentioned on an earlier page. ^A discussion of this matter will be found in the statement of Will R. King in certain congressional hearings. (See Joint Hearings Before the Subcommittees of the Committees on Banking and Currency Charged with the Investigation of Rural Credits, 63d Cong., 2d sess., 1914, pp. 940-947.) 2 This lien is sought to be removed by II. R. 2702. introduced by Congressman Raker, under consideration before the Arid Lands Committee at time of going to press. TOLLS AND CHAEGES. 65 Further revenue procedure. — The statutes provide for a greater or less decree of identification of the collection methods with the countv reveiiue procedure, some prescribin<>; equalization by the district hoard and others in the same manner as ordinary taxes are equalized. The levy is made in a majority of the States by the county officers; in California and several others by the district officers. Foreclosure and sale o^enerally confoj-m to the ordinary case of lands delinquent in the payments of county taxes, a different ])eriod of redemption, however, being prescribed in some States. These matters will be found out- lined to some extent under the heads of the various States, but by no means as a substitute for consultation of the statutes. The hnvs in general provide for various funds into which the moneys obtained as a result of the revenue proceedings are to be covered for the various district pur])oses. Almost all States provide separately for a bond fund and a nuiintenance or current expense fund; others })i'ovi«le a sei)arate finul for moneys to be i)aid to the United States under contract therewith. The distinction between the funds resulting from their diverse ])ur- poses and functions is important for the district officers to bear in mind. The Colorado Supreme Court, in the case of Eberhart v. Canon, Country Treasurer (157 Pac. 189). has held Avith reference to the respective funds that " each is for a specific purpose and should be used for that purpose, and no other, until the purposes for which it was raised have been satisfied" (p. 191). Xot only so, but the court hold that the moneys derived from the levy for one year for maintenance, operating and current expenses could not be used for the payment of the same class of expenses for some prior yeai- until all of those for the year for which it had been levied were })aid. This is for the reason that if the district becomes involved it might well be "that all the moneys levied and collected would be used in the payment of the warrants of prior years and be totally insufficient for that purpose, thereby leaving the district without any funds to meet the cui-rent obligations or with which to in any manner continue its existence, etc." (Id., p. 191). See also the case of Rio (rrande Junction T\v. Co. v. Orchard Mesa Irr. Dist. (171 Pac. (Colo.. 1918), 867). Special /^/«.'fc,s,s//i/';y^,s\— -Some of the laws provide that wheiv the proceeds of bond sales are insufficient for carrying out the construc- tion plans adopted by the disti'ict. and additional bonds are not voted, the board shall by special assessments provide foi- the comj>le- tion of the woi-ks. Tn some States this is de])endent on a ])opulai' vote: in others it is mandatory upon the boa] Pac. 259; 30 Ida.. 479.) TOLLS AND CHARGES. The second method whei'eby irriaatiou districts are authorized to secure revenue is 1)\- the ini])osition of tolls and charges. This i(;0047— 20 n 66 HANDBOOK OF IRRIGATION DISTRICT LAWS. method is analogous to the method whereby a city obtains its revenue for water service, it being discretionary with the corporation to stop the service when the consumer "fails to make current payment for current usage. Tolls and charges are by most statutes merely an alternative means for securing revenue, and then only for the operation and mainte- nance costs. In Texas, however, as will be noted from a reference to the resume of the law of that State (infra., p. 150), provision is made that a portion of operation costs must each year be collected by tolls and charges, the balance being secured by assessment and levy. The statute provides in some detail tlie time and method of securing the charges, and as to the security to be obtained in case forbearance is exercised in the matter of prompt payment. This method of securing funds required for operation, mainte- nance, and current expen^^e is very effective as regards lands under cultivation and equally ineffective as regards lands not under cul- tivation. Constitutionality of the Irrigation District Law. The constitutionality of several portions of the irrigation district laws has already been treated. It remains to refer briefly to the constitutionality of the general principles of these laws. The unanimous opinion of courts of last resort has been to uphold the irrigation district acts of all of the States in all leading provi- sions and in their general scope. There have been occasional features of several of the irrigation district acts which have been held not to accord with State constitutions. An exara]de is found in the orig- inal provisions for the electorate of Idaho irrigation districts re- ferred to above (p. 19). But as heretofore pointed out has not thus far been followed by any of highest courts of other States. As in many other irrigation district matters the place of pioneer, in the judicial construction of the irrigation district law, has been taken by the State of California. Probably tlie leading decisions up- holding the constitutionality of these acts are Modeso Irr. Dicst. v. Tregea (26 Pac, 237; 88 Calif., 334) ; and in re Madera Irr. Dist. (28Pac., 272: 92 Calif., 296). The case of Bradley v. Fallbrook Irr. Dist., however, arising in the same State, elicited a very different opinion from the United States Circuit Court for the Southern District of California, Mr. Justice Ross holding that the creation of irrigation districts could not be sustained under the power to make assessments for local im- provements, and that it was clear the statute provided for the taking of private property without due jDrocess of law. The court con- cluded as follows: Unfortunate as it will be if losses result to investors, and desirable as it undoubtedly is, in this section of the country, that irrigation facilities be im- proved and exten'ded, it is far more important that the provisions of that gi'eat charter, which is the sheet anchor of safety, be in all things observed and enforced. (Bradley v. Fallbrook Irr. Dist., 68 Fed., 948, 966.) This case, however, was appealed to the Supreme Court of the United States and the constitutionality of the irrigation district law of California was fully upheld. Among the points favorably decided were that irrigation of arid lands is a public purpose, and CONSTITUTIONALITY OF THE IRRIGATION DISTRICT LAW. 67 the water so employed is put to a public use; that the statutes pro- viding for irrigation are valid exercises of legislative power; that due process of law is provided and equal protection of the law is given in the irrigation district proceedings where the revenue pro- visions are those customarily followed in the State and the land- owner to be charged has an opportunity to be heard ; and that the act makes proper piovision respectively for hearing upon the forma- tion of a district, upon the deternunation of the boundiuies thereof. upon coiifirmation of the compliance m ith the act, and upon appor- tionment of the benefits to be derived by the lands to be taxed. The plan of assessment Avas also declared valid. In tliis case the Supreme Court upheld the act in vieAV of both the Federal and State constitutions, as regards the former after an original inquiry, and in the case of the State constitution, being boimd by the construction adopted by the California Supreme Court. Man}' features of the irrigation district laws are found to be Avithin the provisions of the State constitutions in view of the dis- tinction to be made between ordinary taxation and the making and levying of special assessments for local public improvement pur- ,poses. Irrigation district revenues are held to be for the latter func- tion of public corporations as contrasted with taxation for purely governmental purposes. This distinction is familiar in the law of public corporations and luis been establislied for a long period. It was recognized in 1892 as regards the irrigation district law in the Washington case of Board of Middle Kittitas Irr. Dist. v. Peterson (29 Pac, 995. 99T; 4 Wash., 147). The leadino- California case upon this point is San Diego r. Linda Vista Irr. Dist. (41 Pac, 291; 108 Calif., 189). The court in this case held as follows: The district, when formed, is a local organization, to secure a local Ijenefir, to be derived from the irrigation of lands from the same source of water supply, and by the same system of works. It is, therefore, a charge upon lan'ds benefited, or capnble of being beneflted, by a single local work or im- provement, and from which the State, or the public at large, derives no di- rect benefit, but only that reflex benefit which all local improvements confer. In Taylor v. Palmer (31 Cal., 241, 255), the court defined the tei-m "assess- ment," as distinguished from "taxation," thus: "It is not a power to tax all the property within the corporation for general purposes, but the power to tax sjiecific ]i roper ty for a specific purpose. It is not a power to tax property generally, founded upon the ber.efits supposed to be derived from the organ- ization of a governmerit for the protection of life, liberty, and property, but a power to tax specific property founded upon the benefits supposed to be de- rived by the property itself from the expenditure of the tax in its innuediale vicinity" (p. 292). It is only in view of the foregoing distinction that irrigation dis- trict statutes are held constitutional as not being within the purview of many constitutional provisions, among others, prohibitions against property qualification for the exercise of the voting franchise, resi- dence requirements for voting, prohibitions against inequality of taxation, prohibitions against municipal corporations incurring liabil- ities above a certain percentage of the valuation of the land therein, prohibitions against taxation upon any other theory than ad valorem valuation, and many others that need not be catalogued. The Supreme Court of the United States has recognized the local improvement status of the irrigation district and the special assess- ment character of the revenue machinerv in the case of Fallbrook 68 HANDBOOK OF TRPJGATTOT^ DISTRICT LAWS. Irr. Dist. rT Bradley (supra, pp. IBl, 163. 174. and ITG). Moreover, the eases of Lundber^ v. Green River Irr. Dist. (119 Pac. (T^tah). 1039), and McCord Mercantile Co. i\ Mclntyre (138 Pac. (Colo. 1914), 59), may also ])e consulted in this connection. The constitutionality of the irrigation district laws have, however, been so thoroughly and so uniA^ersally established that the subject need not be elaborated. Among State decisions uj^holding the constitution- ality of the act the following may be cited : Anderson r. Grand Val- ley Irr. Dist. (85 Pac, 313; 35 Colo., 525) ; Nampa & Meridian Irr. Dist. V. Brose (83 Pac, 499; 11 Ida., 474) ; Know^les v. New Sweden Irr. Dist. (101 Pac, 81; 16 Ida., 217) ; O'Neill v. Yellowstone Irr. Dist. (121 Pac, 285; 44 Mont., 492) ; Board of Directors of Alfalfa Irr. Dist. o\ Collins (64 N. W.. 1086; 46 Nebr., 411) ; Baltes v. Farm- ers' In-. Dist. (83 N. W., S3; 60 Nebr.. 310) ; Little Walla Walla Irr. Dist. V. Preston (78 Pac, 982; 46 Oreg., 5) ; Hall r. Hood River Irr. Dist. (110 Pac, 405; 57 Oreg., 79); Lundberg r. Green River Irr. Dist. (119 Pac. (Utah), 1039) ; Board of Directors Middle Kittitas Irr. Dist. v. Peterson (29 Pac, 995; 4 Wash., 147); Kinkade v. Witherop (69 Pac, 399; 29 Wash., 10). Among more recent California cases are In re bonds of South San Joaquin Irr. Dist. (119 Pac, 198) ; Bliss v. Hamilton (152 Pac, 303). The California provision for the recall of irrigation district officers is held valid in Wigley v. South San Joaquin Irr. Dist. (159 Pac, 985). Irrigation Districts in Operation. The tinancial and judicial engineering and construction methods provided by law as above outlined are obviously merely interrelated means to an end. The ultimate and, as human atfairs go, permanent goal is a soundly financed, legally constituted and properly built irri- gation system operating as a district. Some of the functions of or- ganized districts already have been outlined. (See powers of the district boai-d, supra. ]). 20; drainage. sui)ra, ]). 26; relations with the Federal (lovei-nment. supra. ]). 21; revenue, supra, p. 52.) Water right.-— -It is not appropriate in the present work to under- take a discussion of the methods to be folloAved by irrigation districts in the fundamental matter of the securing of a water supply, since this is accomplished solely through such laws of each State as gov- ern the appropriation of Avater. the perfection of usufructory rights therein and the adjudication thereof as between rival appropriators. These pi'ovisions are of general application to water claimants how- ever organized and therefore belong to general ii'rigation laAv. Nebraska districts are expressly authorized to secure a water supply from ueiiihboring States (infra, ]). 125). Vested rights. — As expressly prohibitive of any possible interpre- tation that these public corporations are granted special privileges in water, many of the statutes, particularly the earlier enactments, make provision that neither navigation nor vested interests in min- ing water rights or other mining property shall ever be impaired, except that rights of way may be acquired over mining ])roperty. It is also specified that the irrigation act shall not be interpreted to authorize the diversion of water, from natural or artificial courses^ to the deti-iment of wny irrigation or other interests. IRRIGATION DISTRICTS IN OPERATION. 69 Jh.stricta can nol (idjuillcatc walcr r'aiktu. — Not only tloes tlu^ juris- diction of an irrigation district fall short of any power to invade the property of persons having rights in land outside of the con- fines of the corporation, but prior rights of owners within the dis- trict are beyond the jurisdiction of the district as an arbiter. In the Oregon case of Little Walla Walla Irr. Dist. v. Preston (78 Pac, 982; 46 Ore., 5), the board had assumed jurisdiction to decide upon the priorities of owners having earlier rights to the use of water owning lands within the confines of the district. The court held that the irrigation district law does not vest the board " with supervision or control over the rights of individuals." Questions as to the use of waste water, the relations between " old "' or prior w^ater rights and " new " rights acquired through the cor- poration, and the duration of water rental rights are all decided as regards irrigation districts in the same manner as for water com- panies. (See Gerber v. Nampa & Meridian Irr. Dist., 100 Pac, 80; 16 Ida., 1.) Nonjudicial classification of Hghts. — It does not, however, follow that irrigation districts may not comprise lands to which are ap- purtenant water rights acquired prior to the formation of the dis- trict where such rights are for a part only of the irrigation season or, in case the statute is sufficiently broad, where such lands are ben- efited in some other resj^ect as a result of the district system. In such case the district may divide the water rights into classes for admin- istrative purposes. Such classification is not, however, an adjudi- cation, " and in no way prohibits or limits anj^ user of water in having the question of priority between users settled and adjudi- cated in the projDer courts of the State." (Brose v, Nampa and Meridian Irr. Dist., 118 Pac, 505; 20 Ida., 281.) The court concludes that the provision for classification is highly beneficial and " may be accepted by the consumers, and thereby much litigation and expense may be saved to the consumers." (Id., 505.) Distrihution of ivater. — It may be said that the general law as to water distribution is applicable in the main as regards individual water users under an irrigation district. For example, the duty to deliver water, the use of which has be- come a vested right of any landowner, irrespective of the difficulty or cost of carriage, devolves upon an irrigation district precisely as upon a water company under like circumstances. (Niday v. Barker et al. Directors of Nampa & Meridian Irr. Dist., 101 Pac. 254; 16 Ida., 703.) In its principal administrative duty of the delivery of Avater to the landowners the district is a self-governing community and the board has the power to establish and is enjoined to promulgate rules and regulations. With the performance of this function the courts are loath to interfere. The board, however, must adhere to the principles of law and act impartially. There must be no discrimination between dift'erent portions of the district lands and the district must not assume juris- diction for the distribution of water to one section while neglecting other lateral systems and district lands. In the case of Harris v. Tarbet et al, trustees of Logan Irr. Dist. (57 Pac, 33; 19 Utah, 328), the board was remiss in this matter, as all lands of the district were being equally assessed ; and all were 70 HANDBOOK OF IRRIGATION DISTRICT LAWS. eqiiall}' entitled to the benefits to be derived from the district organi- zation. The court held : As such refusal and neglect affect the rights of the appellant and others who own land in such district, and who have home their portion of the bur- den to maintain the corporation, as shown by the testimony, the trtistees ought to be compelled by mandamus to perform their duty under the law. We are of the opinion that, under the proof in this case, the court erred in denying the writ. (Id., p. 34.) CalifoT7iia rule in distnhidion. — The leadership of California in irrigation district matters halts very notably when the distribution of water among the district-law landoAvners comes into question. The law in that State is that all waters shall be distributed for irri- gation purposes by ratable apportionment to each landowner upon the basis of the ratio which the last assesment of each for district purposes bears to the whole sum assessed upon the district, with a proviso that any landowner may assign for any year the right to the Avhole or any portion of the waters so apportioned to him. This rule may have originated in early doubts as to the consti- tutionality of any other rule, but it requires what is now a generally discredited criterion for water delivery. " Bcnr-ftc/al-use^'' nde yveferahle. — Many of the States at first fol- lowed California in this respect, but most of them have turned to the more e(}uitable and economically sound i:)rinci])le of distril)ution in accordance with the beneficial use of the water ui)on the respec- tive tracts irrigated. In Utah the State officials allot the water. In Texas it is required that as a prerequisite to his right to demand service each landowner make an annual statement to the district board, setting forth the areas he will farm that year in each of the various crops to be raised. This is an aid to distribution in accord with beneficial use. For tlie beneficial -use rule, as applicable to an irrigation district, see Niday ?'. Barker et al.. Directors (101 Pac, 254, 2.5t): 16 Ida., 70H). It is required of the board to promote efficiency and prevent waste. It is the duty of the canal company to turn the water out either from the main canal or lateral at the most' convenient point to the consumer (sec. 32SS, Rev. Codes), and this .should be at such place as to cause the least waste by seepage or evaporation. (Id., p. 255.) Rotation in service. — On the other hand the statutes frequently, particularly where the earlier law has not been fundamentally modi- fied, require the apportionment of the water, whenever the supply shall be insufficient to meet the continual wants of the owners of water rights, upon certain or alternate days on a rotation system. Sucli a degree of rotation of service was sufficiently progressive during the original enactment of irrigation district laws when land- owners were deemed to need a continuous flow. The present senti- ment in irrigated localities and the trend of judicial oj^inion is be- coming constantly more favorable to a system of rotation between users under ordinary circumstances, and unless individual holdings are still so large that rotation between various parts of the same ranch provides due economy. This practice, involving the use of larger lieads for shorter intervals under normal circumstances, tends toward economy in the use of water and in the time of the irrigator, and tends toward lessening the seepage and alkali difficulties. Hence a by-law requiring rotation would, we believe, be held valid by the IRRIGATION DISTRICTS IN OPERATION. 71 courts, at least in the absence of contracts whereby a coiitiiuious floAv mitiht become a vested right. Denial of sei^nce fo7- nonpayment. — The right of the directors to deny water service in case of faihire to pay the district assessments has not been thoroughly woi-ked out in the statutes or decisions of courts. Nebraska has a clause permitting the adoption of a by-law for the denial of service in case of delinquency exceeding a two-year period. (Infra, }). 1-21.) Distris'ts which cooperate with the United vStates under contract are authoi-ized by the respective statutes to contract for operation in such fashion as to comply with the Federal laws and the rules and regulations established thereunder, and the Federal laws require the denial of water service after a delin((uency in construction or operation and maintenance payments exceeding one year. (Reclamation extension act of Aug. 13, 1914, sec. 6, 38 Stat.. 687.) Where the method of securing revenue for operation and maintenance is by tolls and charges, the denial of water service for failure to pay woidd extend to the operation and maintenance charges. Dhtnct responsibility — Theory. — In Idaho, at least, the general operations of an irrigation district are proprietary rather than gov- ernmental. A district, therefore, upon acquiring the system of an antecedent private corporation obtains no greater or governmental powers therein to the curtailment of the powers of a city through which the district waterways are built. The supreme court has held : An irri.iratiou district is a public (lunsi corporation, organized, however, to conduct a business for the private bonetit of the owners of land within its limits. They are the members of the corporation, control its affairs, and they alone are benefited by its operations. It is, in the administration of its busi- ness, tlie owner of its system in a proprietary rather than in a public capacity, and nnist assume and bear the burdens of i)roprietarv ownership. (Nampa v. Ts^ampa & Meridian Irr. Dist., 115 Pac, 979, 982; 19 Ida., 779.) Liability for official negligence. — Accordingly there is a distinction between public corporations of a governmental character and irriga- tion districts in the liability resulting from the negligence of their officers. In the Federal case of Noon v. Gen. Irr. Dist. (205 Fed. (1913). 402), the court having in mind the Idaho view, it was held that the district was liable : It is of no avail to say that a legal responsibility might rest upon such negli- gent officers or agents individually. It is noti to be presumed that the particular individual chargeable witli the negligence in any given case woiild possess such financial responsibility as to make that remedy of any practical value. As well might we relegate the injured railway passenger to an action against the neg- ligent engine driver instead of liolding the corporation responsible. I can see BO reason why, in a case of this cliaracter, or in the supposed case where a farmer's crop is flooded and destroyed by the negligent breaking of one of the defendant's ditches, the industry instead of the individual or society at large should nob bear the loss. (Id., 405.) In the Dakotas, by statute the district is liable for failure to deliver water in case damage ensues, provided the landowner takes the steps prescribed by law. (See infra, p. 137.) Official liability. — The district officers in common aa ith officers of other public, quasi public corporations, and private corporations en- gaged in public service may be mandamused to deliver water and to perform their necessary functions. (See Harris v. Tarbet, 57 Pac, 72 HAiSTDBOOK OF IRRIGATION DISTRICT LAWS. 33; 19 Utah, 328. Niday v. Barker et al, director, 101 Pac, 254; 1C> Ida., T03.) Several of the States have also recently made provision for the recall of district officers before their tenure of office expires. Refer- ence to the Califoi'nia provision will be found below. (Infra, p. •)2.) Several of the States have statutory provision in general for the punishment of district officers who are guilty of breach of trust. They are also liable upon their bonds. 7'he jjrlvilege of transfer. — The transfer of water from one owner to another is a privilege of doubtful expediency. In California it partially, at least, results from the method of apportionment of water by the board upon the basis of the assessment paid as contrasted with the beneficial use rule. The supreme court of that State has held that the right exists onlv for transfers to lands within the district. (Jenison /'. Redfield, 87 Pac, 62 : 149 Calif.. 500.) Some of the stat- utes provide that the privilege of assigning a water right is limited to those who have paid their assessment in full. The privilege is gener- ally limited to the current year only. In Utah, landowners may assign water privilege from one land- owner Avithin the district to another fcr one year only, provided both have paid their assessments, and the board is authorized to lease water to occupants of extraneous State and Federal land upcm the same terms as though they were within the district, but water may be leased to other ])ersons outside the district at one and one-half times the rate paid by owners within the district. (Infra. ]). 152.) Another State provides that owners w^ithin or without the district may arrange for an exchange of water retaining the privilege of re- suming the former status, the arrangement being by contract with the district. (See Montana jjrovision, infra, p. 118.) The tendency of the assignability of the water is to lessen one of the advantages of irrigation district organization, namely, the early placing of the land under cultivation on account of assessment for construction and operation. If a landowner may derive a profit from renting from year to year the Avater which is assigned to him to others, he can afford to defer development and possibly may speculate in the water right. It is preferable to have powers of this kind vested in the board and to have the revenue inure to the district as a whole thus making the landowner realize that it is to his interest to make beneficial use of the right to the water thereby placing the district on a firmer financial basis. Some of the States provide that districts cooperating with the United States pursuant to contract with tlie Government may lease water to private landowners, entrvmen. or municipalities in the neighborhood. (See Colo., 1, 1917, pp. 294,;295.) Trar)>'ifrr of irofer in cas^e of Rvlrirrujcit'ion. — Reference has been made elsewhere (infra, p. 80) to the dangers of general provision for the release of district lands from liability on account of sub- irrigation. AVhere provision, however, is made for the simultaneous binding of another tract for the payments in lieu of that released, the arrangement is highly beneficial, except where it tends toward pro- crastination in making j)rovisi()n for drainage. An excellent provi- sion on this subject is contained in the Nebraska hnv. (Infra, p. 121. "> Potcer devetopriient. — The general authority conferred to con- struct irrigation works doubtless includes the construction of works IRRIGATION DISTRICTS IN OPERATION. 73 for the develupnii'iit of power for the reclamation of district lands without express mention thereof. Where, however, the plans do not or can not include pumpin\v llieiii, it is witliiii the nuthority of the leiL^is- latnre to creiite a siihparate entity for the purpose of c- Avarrants if desiicd. the [nimarv liability of the local district remainin;TKi?i)isTinrT Coopfhattox and ^MF.nr.Kn. ('oopei'di'n'c coiixt nict'/ori. — Provision for cooperation between dis- tricts without mergei- or loss of separate corporate character is made by the Texas and Oregon laAvs to the end that joint action may be taken by two or moi'e districts desiring to construct or purchase w^orks in connnon. Authority in such case is granted for a joint contract and the employment of a general manager who shall liave chai'ge of the common enterprise. No contract is valid until ratified by a majority vote of each district. (See infi'a. ]). 151 and p. 142.) 100047—20 6 82 HANDBOOK OF IRRIGATION DISTRICT LAWS. Overhead or reservoli- districts. — There is, however, probably a growing need in some localities for provision for the creation of districts which might embrace within their boundaries other irri- gation districts. No State has yet made a statutory effort in this direction. The desirability of such provision of law would perhaps most fiequently arise as the result of several irrigation districts having joint interests in the construction, operation, and maintenance of storage works, each district desiring to retain independence as re- gards its own diversion and distribution system. In the case of a long river these districts might be many miles apart, and consolidation or merger Avould then be unpopular and impractical in matters of local administration, while the interests in common for the administration of the storage system might best be subserved through an overhead or reservoir district. Such a corporation would have a legal entity without disturbing those of the various districts and other organizations serving lands within its confines. The overhead district would be especially valuable in case of a need for important replacements of storage structure or in the event of an emergency when the necessity for contracting with numerous individuals, private corporations, and districts would in many cases involve a large amount of negotiation. The statutory plan would need to be safeguarded with great care to the end that the prior and subsequent creditors of all districts receive full protection. This could best, and perhaps could only, be attained by judicious State supervision and registration of bonds. DistHcts for interstate projects. — The fact that a number of the large projects, which must be undertaken before anything like com- plete utilization of the land and water assets of the West has been attained, will have an interstate character has not received recogni- tion by the legislatures of the various States involved. Already there are several Federal projects constructed having irrigated lands in two States. Examples are the Klamath project, in Oregon and California; the Yuma, in Arizona and California; and the North Platte, in Nebraska and Wyoming; while the Rio Grande project is an interstate and an international project, having lands in New Mexico, Texas, and Mexico. Same — Method that of cooperat'ton ratJccr than eorpcn-ate unity. — The irrigation district, having taxing powers conferred by an indi- vidual State, and constituting for many purposes a legal subdivision of that State, can not exercise functions outside the boundaries of the State which created it and conferred upon it the requisite powers. No effort, therefore, toward the establishment of a district having interstate jurisdiction has been made. A few States, however, have made provisions which greatly facilitate cooperation between irri- gation districts formed in different States. Same — California statute. — California has the most comprehensive enactment on the subject. (L. 1917, ch. 591, p. 905.) There irriga- tion districts are authorized to contract with irrigation districts in ad- joining States for " joint construction, acquisition, management, and control of diverting, impounding, or distibuting works for irriga- tion or draining the lands within the boundaries of their respective districts." The agreements maj'^ provide for joint or several owner- ship, or ownership in common, of the property necessary or con- TNTERDISTPJCT COOPERATIOX AND MERGER. 83 ^•enient for such cooperation, and jurisdiction over controversies is granted to any coni-t of competent jurisdiction in the State. It is expressly dechired to be hiwful to divert water from California for impounding in the adjoining State, or otherwise, for distribution to the lands of the cooperating district, regardlevSs of State lines, or to divert water from such adjoining State for impounding or other- wise for distribution to the lands of the cooperating district in Cali- fornia or in the adjoining State. And in so far as is necessar3\ the cooperating district in the adjoining State may hold title to property in the adjoining State. Joint action in securing imgation vwrks. — Other States haA'e some- Avhat less elaborate provisions permitting one or more irrigation dis- tricts within such States to unite with one or more adjacent irriga- tion districts organized under the laws of any adjoining State for the pui'chase or construction of a common system of works for the irrigation of lands within such respective districts. Such districts are jointly given the same power of condemnation as is granted to one district alone. The cost of the construction or purchase of the irrigation system is required to be apportioned to each district in proportion to the irrigable acreage in each district, and the districts have undivided interests in the title to the works in the same pro- portion. (Gen. L. Oregon 1917. p. 764; L. Idaho, 1917. p. 73.) At least one State (Idaho) provides, so far as one State can, for a joint commission, in the case of interstate projects, not exceed- ing seven in number, who shall be chosen by the boards of directors of the respective districts. Representation on this board is appor- tioned as nearly as practicable among the various districts in accord- ance with the acreage for which water is provided. The commission has the control and management of the works held jointly, subject to the boards of directors of the districts who can at will recall their respective representatives on the commission. Merger or consolidation. — Many of the States uiake no provision for the merger or consolidation of existing irrigation districts, but the need for legislation along this line is beinning to be recognized. The Oregon Legislature has authorized the merger of irrigation districts. There the board of directors of any district desiring to be included within another, addresses a petition to the board of such other district, showing the indebtedness of the district proposed to be included and the boundaries thereof. The board to whom the petition is addressed may accept or reject the same in its discretion. If it accepts, the board of the district desiring to be included, orders an election in that disti-ict, and the question is decided by a majority vote thereof. The indebtedness of each district is then ascertained and entered upon the records and a division of such indebtedness or- dered, after which the consolidation is complete. (Gen. L. 1017. v), 772.) Another plan is adopted in Nevada. The boards of directors of two or more districts in that State desiring to be consolidated into a single district, petition the county commissioners to order an election upon the question. This petition states in detail the terms upon which the consolidation is proposed to be made. The county board then submits the matter to the State engineer for investigation and report. After such report is received the county board acts upon the petition. If this is allowed, an order is made fixing the date of 84 HANDBOOK OF IRPJGATTOX DTSTEICT LAWS. the. election. A majority of all the votes cast in each district is suf- ficient to authorize the consolidation. The county board then dividevS the district into proper divisions and appoints a director for each division, who serves until the next general election of officers, at which time a board of directors is elected. In case either district has entered into contract with the United States, no consolidation may be made without first obtaining and filing with the board of countv conmiissioners the written assent of the Secretary of the Inte- i-ior. ' (L. 1915, p. 445.) The most apparent weakness in both of the methods above de- scribed is the failure to make express provision relative to bonds issued by the respective districts prior to their consolidation. Where the districts to be consolidated have outstanding debts such obliga- tions can not be merged unless the bondholders assent. The merger of obligations of district's having debts in an ecjual amount per acre or upon some other ground equivalent, might still be sul)ject to attack unless the consent of the bondholders was re- quired, for the reason that the bondholders in extending credit to the district would be deemed by the courts to have become entitled to rely upon the lands of the original district as security without sharing such security with any other irrigation district's creditors. The merger might or might not, as a matter of fact, furnish equiv- alent substitute security, but in legal principle would seem to con- stitute an objectionable substitution of security. The statute should safeouard districts aiiainst an attempted merger of indebtedness such as might lead to litigation by prohibiting consolidation of the in- debtedness of two or more districts without the consent of the creditors. The California statutes relating to consolidation and reorganiza- tion of swamp land and reclauiation districts contain a very satis- factory })rovision on this subject, which is quoted below : Such coiisolidiitioii iiiid reoriiMuizntion sli:ill in im iniiniiei' invalidate the !ndel)tedne.ss of the oiijiiiiai districts; and all the laws, rnles, and restihitions for the assessinii', levyin.u', and c(illectin,ti taxes or a.ssessnieiits in said dis- ti'icts sliall rcMnain and be in force, and all asscssnipnts and collections re- qnii'ed for the iiayment of the then outstanding- indebtedness in said districts shall be the same as thoirsxh they had not consolidated and i-eor;.;anized until such indebtedness shall be paid and liquidated. ( l>eerin,i;"s Political Code of California, .sec. B489.) It is probable that the courts Avould bring about the same result irrespective of statute, but express statutory declaration has many advantages. ■ Dissolution. K.fpre.sx prov'hsioiis )iece8sary. — Irrigation districts, being in the nature of public or municipal corporations, can not be dissolved without express statutorv authorization. (People r. Selma Irr. Dist., 32 Pac. Rep., 1047; 98 Calif., 206.) Practically all States permit dls.^olutlon.—'WhW^ the original Cal- ifornia act appears to have made no provision for dissolution of districts, practically all irrigation district States now have enact- ments on the subject which in their diversity are quite confusing upon a mere cursory examination. On a closer view the general DISSOLUTION. 85 plans and aims of the various statutes are found to be practically identical in the great majority of the States. Creditors to he protected. — The importance of equitable dissolu- tion laws from the standpoint of the bondholders and other creditors of the district is obvious. It is essential that payment of the bonds and other obligations of the district be fully provided for in any plan for dissolution, except to the extent that the law is to partake of the character of a bankruptcy act. Two general methods of 'procedure. — A number of States permit the question of dissolution and the settlement of the affairs of the district to be determined by the district itself, either by the board of directors or through an election. But as neither the board nor the electors can be regarded in the light of wholly disinterested parties* it is believed that the bondholders and other creditors are more fully protected by the laws of those States which require the matter of dis- solution to be finally passed upon by the courts after it has beert assented to by a majority of the electors of the district. General outline of the statutes. — While it is impracticable to dis- cuss the laws of each State in detail, and well-nigh impossible to join them in one connected outline of procedure owing to their great difference in detail provisions, the following statement seeks to cover the general features. Steps looking toward dissolution are initiated by a petition signed by a designated j)ercentage, generally a majorit}^, of the assessment payers, electors, or landowners of the district. In some States the petitioners must also represent a majority of the acreage; while in Utah they must represent a majority of the acre-feet of water. In Colorado a petition for dissolution may be signed by 75 per cent or more of the holders of the bonds of the district. Sometimes the petition is required to set forth the fact that there are no outstanding bonds or other obligations. In other States the petition must propose a plan of settlement of the outstanding obli- gations, if any. Still other States provide two distinct methods of procedure, one applicable to districts having outstanding obligations, and the other to districts whose obligations have been fully settled. Following the petition a special election is called, at which a majority of the votes cast is generally sufficient to determine the issue. If the election favors dissolution, then in some States the directors appear before the appropriate court with an application for an order dissolving the district, the court retaining jurisdiction until the pro- ceedings have been completed, the affairs of the district settled, and the district dissolved. The right of appeal to a higher court is pre- served. Elsewhere the settlement of obligations and the dissolution of the district are handled by the board of directors, and no automatic provision made for access to the courts. Adjustment of indehtedness. — Under either method, the next step is the adjustment of the obligations of the district by settlement in full or compromise as may be found feasible. For this purpose the canals, franchises, and other property of the district may be sold, the method of sale being generally prescribed by statute. The obliga- tions of the district are then liquidated to "the extent of the funds available. Some of the States provide, however, that the district, in redeem- ing its bonds, " shall in no case pay more than the market value of 86 HANDBOOK OF IRRIGATION DISTRICT LAWS. such outstanding bonds, with interest, u]) to the time of payment." This might in some cases amount to a virtual repudiation on the part of the district, whose contractual obligation is, of course, for the face value of the bonds, regardless of their market price. Grave doubts are entertained as to the constitutionality of such a provision, which appears to be an impairment of the obligation of the district's con- tracts; and it seems to be also open to the strongest criticism from the standpoint of public policy. A district contemplating dissolution might be strongly tempted under such a law to engage in a propa- ganda of misrepresentation for the express purpose of decrying and minimizing its assets and thus reducing the market value of its bonds. The clause above quoted is found in the laws of Nebraska (R. S. 1913, sec. 3521), Oklahoma (L. 1915, p. 535), North Dakota (L. 1917, p. 159), and South Dakota (L. 1916-17, p. 586). The laws of the same States also contain, either verbatim or substantially, the following language : In all cases where bonds and other obligations of irrigation districts shall be issued after the passage of this act. such bonds and obligations shall become subject to redemption by the board of directors of any irrigation district as soon as the property and franchise of such district shall be sold after such district has elected to dissolve as a district as herein provided. (L. North Dakota, 1917, p. 160.) Generally provision is made that if the amount realized from the sale of the property of the district, together with such other moneys as may be available, is not sufficient to pay or settle the indebtedness, as.sessments are made against the lands within the district until the necessary amoimt is raised. The final order dissolving the district is filed for record with the recorder of each county in which lands of the district are situated. Where contract has been made with the United States no action shall be taken looking toward the dissolution of the district without the written assent of the Secretary of the Interior. The Texas statute is unique, three methods of dissolution being given as alternatives. (Infra, p. 149.) The Colomdo plan. — Perhaps the most detailed of the enactments upon dissolution under direction of the court is that of Colorado (L. 1917, pp. 307-313), which has been covered quite fully in the digest of the laws of that State (infra, p. 105). There appears to be one feature of this statute, however, which may be justly criticized, and that is a provision in section 9, page 312, for the release of any particular tract of land after dissolution from the lien for district obligations. Such release is secured by paying the proportionate share of such tract of the bonded indebtedness. But the harmful effect of this provision is mitigated by the clause that "no plan of liquidation shall be approved by the court, which does not provide for the untimate payment or liquidation of all the indebtedness of the district and adequate security for the holders thereof " (sec. 10, p. 312) , -Sind that in at least two other places in the same act the legislature expresses the intention to secure the ultimate payment of all in- debtedness. But a danger rests in the fact that the court is not precluded from deeming the pro rata apportionment of the debt in such fashion as fully to discharge the debt, if the assessments are fully paid, as a provision for the liquidation of all the indebtedness and as such com- pliance with the statute. Whereas in few cases where dissolution is ARIZONA STATUTES. 87 undertaken will it in fact discharge the debt. This is another case where apportionment and discliarge of liens is strongly objectionable. (See su])ra. p. 57.) The flavoi- of the statute is not improved by a provision that a corporation may be formed to acquire the assets of the district. Scope of Ensuincj Outline of Individual State Statutes. While most readers of this work will have ready access to the laws of their own jurisdictions, comparative!}^ few will have opportunity to compare the statutes of most of the others of the IT irrigation district States. For this reason it is believed that a digest of the laws of the various States prepared not for the purpose of furnish- ing detailed information-, but merely tx) sketch their outlines and illustrate the somewhat diti'erent angles from which the legislatures liave approached the subject, will be of value. Such is the principal aim of the following brief summary of the hiws of the respective States. No attempt has been made to give a comprehensive survey of the statutes, those points wherein a law follows the usual form in a general way being merely touched upon or perhaps omitted altogether. On the other hand, unique provisions, especially those exhibiting new tendencies or pointing the wa}' to possible future developments, whether for good or ill, are given more prominence, and sometimes €ommented upon with a view to encouraging constructive compari- son and criticism. The irrigation district, however, is the creature of statute, and those who have to do with them must necessarily consult the law itself constantly. A digest, therefore, Avould be a dangerous, rather than a helpful substitute for the laAv itself, if used as a basis for action in irrigation district affairs. Hence, we have purposely avoided giving the periods during ^vhich jurisdictional publications run, the requirements as to what important notices should contain, the statutory dates and periods in the assessment procedure, and other matters of a similar character. Arizona.^ FormMion. — The Arizona irrigation district act is to be found in the session laws of the second special session of the legislature. (L. 1915, ch. 8. p. 62.) This act was an entirely new law% repealing the former irrigation district act and granting to any irrigation districts formed under the previous act the privilege of coming under the pro- visions of the new act after a special election carried bv a majority vote. (Sees. 29 and 30.) Irrigation districts in this State are initiated by a majority of the resident holders of title, or evidence of title, including homestead entrymen or purchasers of State lands who petition for the organiza- tion of the district to the board of supervisors. The object of organ- ization is simply that of provision for the irrigation of the district lands. Owners of lands included within the iDOundaries who have ^ See. pa«e above for the purpose and scope of this discussion. See also .\ddenda, p. 165, for 1919 ameuduients. 88 HANDBOOK OF IRRIGATION DISTRICT LAWS. constructed irrigation works which have availed to supply not less than '25 per cent of the lands so owned, or which shall avail, within a ])eriod of one year after the organization of the district, for the irri- gation of such aggregate areas, shall be exempted from the provisions of the law, if the water has actually been appropriated to beneficial use for such percentage of area. (Sees. 1 and 2.) Districts are authorized to construct and maintain levees for the ]:)rotection of district lands from overfloAV, the provisions of law being applicable for that purpose. (Sec. 14.) Judicial notice is required to be taken of the existence of irrigation districts after the filing of certified copy of the order of the county board declaring the organization thereof, and a copy of such order shall be conclusive evidence of the legal sufficiency of all steps taken under the act in all court proceedings, except in a (juo warranto pro- ceeding instituted within one vear from the date of such filing. (Sec. 10.) Elections mid electorate. — Upon the organization election a ma- joiity of the votes cast is sufficient. (Sec. i2, par. n.) Electors under the Arizona laws are defined in two ways: "Quali- fied electors for bond issues and special assessments" must be real l)roi)erty taxpayers owning land and residing on lands within the district for district ])iirposes an.) " General electors " are qualified electors under the general laws of the State holding land in the district and residing in the countv. (Sec. 3^.) The recall pro\ isions under the Arizona constitution are atlopted as I'egards irrigation district directors. (Sec. 18^.) District inclehtedriess. — Contracts involving more than $10,000 and not more than $25,000 i-equire written authorization, by not less than one-third of the qualified electors according to the number of votes cast at the last election. Contracts in excess of $25,000 require an election such as for the authorization of bonds. (Sec. 5, par. a.) Bonds shall mature in not exceeding 30 years and shall bear interest not exceeding 6 per cent per annum. (Sec. 11, par. b.) Provision is made that a landowner, Avhose title is inchoate, shall tnter into contract with the board that upon leceiving full title his land shall be subject to the bonds and other debts of the district and that in the meantime he shall pay his proportionate share of as- sessments. (Sec. 7.) The installments upon the bonds are payable by a district from the twenty-first to the thirtieth years from the date of issue of the series, but the district may, by a majority vote, provide for an installment })eriod beginning at an earlier date. In case the proceeds from the sale of bonds are insufficient to provide for the completion of the works and additional bonds are not voted, the board shall provide for the com- pletion of the irrigation ]dans by a levy of taxes therefor under the act. (Sec. 11.) The bonds can not be sold for less than 85 per cent of the face value, any attempted sale at a lesser value being declared to be absolutely void. (Sec. 12.) Con-finruitio')!.. — Proceedings for confirmation of l>onds in Arizona may be initiated not only by the board of directors br.t by any elector, taxpayer, or j)roperty owner. (Sec. 28.) ARIZONA STATUTES. 89 Assessment. — The i-eal property of the district is declared to be and remain liable to taxation for payments on the bonds. Upon payment being made for any lands of the districl prior to the maturity of any bond issue of that proportion of the l^onded indebte(hies> which the acreage of such land bears to the tbtal bonded acreage of the district, with interest to the following interest-pa\'ing day, the tracts so paid for shall be jek'ased fi'om further- t:ix levy for the bonds then exist- ing, except as in the act otherwise provided for tax levy in the event of default at maturity of bonds. (Sec. 13.) In case of such default by the district, the lands, if any, released by payment become taxable again to render i)ayments to the bondholders. (Sec. 16, par. e; see conunent, supra, p. 58. ) Assessments are initiated by the board of directors, who make an annual estimate of the moneys required for the next fiscal year, including provisions for the tax-sale j)urchases of delincjuent district lands. Certihed copy thereof is transmitted to the county board or boards with other specified infornuition. Appropriate columns are provided in the regular State and county tax roll for the entry of district taxes. These taxes are required to be levied at a imiform amount per acre, and the county board is required to add to tiie amount certified by the district board 15 per cent of the gross amount for contingencies and to fix the resulting proportionate '' rate amount per acre at which ea'ch acre of taxable lands of such district shall be taxed.'" The custonuiry functions are performed for the district by the county assessor and the county treasurer. (Sec, 15.) The treas- urer of the county wherein the district office is located is also ex officio district treasurer. (Sec. 4.) Should the directors fail to provide estimates and certificates as required, the board of supervisors must make the levy as they may deem sufficient. The district and county boards and other officers mav be compelled to act by mandamus. (Sec. 15.) More than usually detailed ])rovision is made foi- the creation of separate funds, and it is pro\ided that the district shall not pay out of the bond or interest fimd moneys due on any subsequent issue of bonds until all matured bonds and interest of all prior issues ha^'e been paid or a fund has been created for their payment. When moneys resulting from prepayment of assessments are available for the payment of a part of the bonded indebtedness, bonds are called for, beginning with the highest numbers. District taxes become a lien, as other State and county taxes, the provisions of the general revenue laws being applicable as to assess- ment, levy, and collection, except as modified to meet the require- ments of the act, and as to the sale of property when delinquent.. (Sec. IT, par. a.) ■ The district is authorized to become the purchaser at delinquent- tax sales in the same nuinner as individuals, and the board has the ])ower to provide funds for such purchases and to dispose of the property purchased for an amount not less than the amount paid, with interest at 6 per cent. Upon petition, however, of five quali- fied electors, the question of the resale of lands taken by the district on any other terms shall bo submitted to the (jualified electors. (Sec. 17, par. b.) Prior water rights are expressly protected (sec. 25), provision being made, however, for distribution of available water by the dis- 90 HAiS^DBOOK OF IRRIGATION" DISTRICT LAWS. trict pro rata, as near as may be, and for delivery of the supply npon alternative days. (Sec. 24.) ■• - Eocclus'ion. — Under the exclusion provisions it is stated that tlie lands which become free from the district are not to be liable for district debts thereafter created, but for previously contracted lia- bilities the exclusion does not avail. (Sec. 26, par. f.) Dissolution. — Petition for dissolution must be signed by a ma- jority of the owners of land addressed to the board of supervisors, setting forth that all indebtedness has been fully paid. (Sec. 27.) Activities under Federal law. — Cooperation with the United States is provided in Arizona by separate act approved March 8, 1917. (L. 1917, p. 2G.) This measure expressly provides for cooperation in the construction of drainage works and levees, as well as for irrigation. (Id. p. 27.) It is provided that the district shall not be dissolved, its bound- aries changed, or any specific tract released which has been bound for the purpose of paying toward the bonded indebtedness to the United States except upon the written consent of the Secretary of the Interior. Califoexia,^ As we already pointed out, California has been the leader in the irrigation district movement. The original law, approved March 7. 1887 (L. 1887, 29). was fathered by xA^ssemblyman Wright, of Stanislaus County, and resulted from the need for what later be- came the Modesto irrigation district. It was the first measure to prove of practical utility in the application of the public corpora- tion to irrigation in this country. California is also entitled to credit for the leadership in the plan for the confirmation of organization and bond issues by proceedings in rem in the passage of the act ap- proved March 16, 1889 (L. 1889, 212), commonly known as the con- firmation act. Tlie present California act. known as the Wright-Bridgford Act, approved March 31, 1897, departed in a number of important re- spects from the original act: for example, in placing greater safe- guards around the formation of irrigation districts, so that the pres- ent irrigation district law of California is further from the pioneer Wright Act than the laAvs of several of the Western States. This act has in turn been amended by later enactments. The present law will be conveniently found in Deering's General Laws of California (1915, act 1726, pp. 662 to 707, inclusive, as amended by L. 1917. p. 751 to 769. and L. 1917. p. 915). Several supplementaiy laws will be referred to below. - Organisation. — It now requires a majority of the holders of title, or evidence of title, including evidence of the rights of entrymen or purchasers of lands of the United States or of California, such holders of title or evidence of title representing a majority in value of such lands according to the equalized county assessment roll for the last preceding year. The land must be susceptible of irrigation ' See p. 87 for the purpose and scope of this discussion. See also Addenda, p. 165, for 1919 amendments. ' Section numbers hereinafter cited refer to act 1726 of Deering's General Laws of California, 1915, unless otherwise specified. CALIFORNIA STATUTES. 91 :from a common source and by the same system of works, including pumping facilities. As an alternative, organization may be proposed by written peti- tion of not less than 500 adult petitioners residing in the proposed district, corporations, associations, or partnerships being qualified signers, the said petitions to represent not less than 20 per cent in value of the land within the district according to the said equalized county assessment roll. The irrigation district need not consist of -contiguous tracts. (Sec. 1, as amended L., 1917, 571.) The petition is presented to the board of supervisors of the county wherein the greater portion of the district shall lie, a copy thereof being filed with the State engineer. Functions of the State Engineer. — After compliance with law as to the petition, the county board must postpone the hearing upon the same until the State engineer has made a preliminary investiga- tion of the feasibility of the project. If the State engineer's report shall be adverse, the hearing is continued and eventually dismissed unless three-fourths of the holders of title shall favorably petition the board of supervisors in writing, or unless the plans for irrigation are so modified as to obtain the approval of the State engineer. (Sec. % as amended L., 1917, 755.) The State engineer shall have authority to give information to per- sons contemplating the formation of districts, and when the depart- ment of engineering deems it in the public interest that surveys and investigations of projects shall be made at the expense of the State, the State engineer is required to make the same, and the State w\ater com- mission has authority meanwhile to withhold from appropriation any unappropriated water likely to be needed therefor. (Sec. 2-a, as added by L., 1917, 755.) Hearing. — If the project is acceptable or is rendered so hearing upon the same is held after notice and the boundaries are established. Adjournment may be taken from time to time. Areas already irri- gated and riparian lands may be included in the district if the same are found hy the county board to be benefited, or if the water used thereon or such water rights, in the judgment of the board, should be acquired for the district. (Sec. 2, as amended L., 1917, 752.) Upon the final hearing, the county board embodies in an order its conclusions as to the genuineness and sufficiency of the petition and gives notice reciting the State engine'er's report and defining the boundaries. No evidence against the sufficiency of the petition is receivable unless the board is satisfied that newly discovered evidence exists disproving the genuineness or sufficiency thereof. (Sec. 3, 664.) Such finding of the board is conclusive against all the world except the State raising the issue by suit commenced by the Attorney Gen- eral. Such suit on the part of the State must be commenced within one year after the order of the county board. (Sec. 4. 665.) This provision as to the conclusive character of organization is in addition to the safeguard procurable by confirmation proceedings below out- lined. Upon organization election, after statutory notice, a two-thirds majority of all votes cast is necessary for the formation of the dis- trict. (Sec. 9, 666.) Ofjicers. — The number of divisions, and of directors, is five, with the proviso that if requested in the petition there shall be but three 92 HANDBOOK OF IRRIGATION DISTRICT LAWS. divisions. The directors may be elected by divisions or at large as requested in the petition, but shall in any event reside in and repre- sent separate divisions. (Sec. 5, 665.) The number of directors may, however, be changed after organization by a petition therefor, signed by the majority of the holders of title. (Sec. 28 as amended L., 1917, 761.) The board of directors, assessor, tax collector, and treasurer are chosen at the organization election, no office being combined with any county office. There is a provision for the consolidation of officers if requested in the petition for organization. (Sec. 7, 666.) In most States the salaries have been fixed in too ironclad or too meager a fashion. California has attempted to adjust the matter and gives the directors $4 per diem and 10 cents mileage, but provides that in districts containing 500,000 acres or more the directors in lieu of per diem shall receive $150 monthly. The board fixes the com- pensation of all officers named in the act. Upon a petition of 50 freeholders a schedule of salaries and fees, including salary or per diem of directors, if petition so requests, must be presented at a gen- eral election. (Sec. 57, 691.) Annual reports are required of the directors showing the fuiancial condition, source of receipts, and purpose of disbursements. (Sec. l4^si as added L. 1917, 756.) Elections. — Irrigation district elections are held each odd-num- bered year with the provision that the term of office of officers elected at or after the general irrigation-district election in 1919 shall be four years. ( Sec. 19 as amended L. 1917, 759. ) It is provided that no person shall vote at a district election unless he possess the qualifications required of electors under the general election laws of the State (Sec. 8, 666), and provision is made for the contesting of any election in the superior court within 20 days after the canvass of the vote, and a 30-day appeal period is provided. Any person owning property in the district liable to assessment may prosecute such contest. (Sec. 11, 666.) Nominations. — Provision is made for nominations on the part of 10 or more requesting that certain persons be nominated. Their names then aj)pear upon the ballot, although electors may vote for persons not nominated. (Sec. 22-b, 672.) The provisions of the general election laws are followed as nearly as practicable. (Sec. 23, 672.) The offices of assessor, collector and treasurer, although not joined pursuant to petition for organization, may be consolidated in the discretion of the board prior to an election. (Sec. 27, 674.) Recall. — Elective officers may be removed or recalled after six months' tenure. To this end a petition must be filed with the secre- tary of the board of directors, signed by registered voters in number equal to 25 per cent of the highest vote cast for candidate for the office in question at the last general district election. The petition must state the grounds upon which the removal is sought and the signatures must be supported by affidavit of the person who circulated it as to the genuineness of the signatures. A special election follows at which a majority of those voting prevails. (Sec. 28|, 674.) Condemnation and property. — The power of condemnation in- cludes property in canals and works constructed by private owners, and the right to acquire stock in other corporations, clomestic or for- eign, owning waters, canals, etc., is given. The board may also ac- quire and operate property jointly with other irrigation districts or CALIFORNIA STATUTES. 93 iiiiiratioii ( orporations and nuiv coiidoiun llic i)iivile<>e of carrying water through canals of other corporations. (Sec. 15 as anienclecl I.. 1917, 75G.) Pi'ovision is made whereby the property held in ti'ust by the dis- trict may be sold \yheii no longer necessary for district purposes. .(Sec. 29, 676.) Where there is a mutual water company \yithin an irrigation dis- trict organized to furnish water to si)ecified lands within said dis- trict, the district board of diiectors is authorized to contract for the delivery of water for such lands through the mutual comjianv. (Sec. ir)-b,'as added L. 1917. 758.) Leases. — The board is authorized after due notice to lease the sys- tem of canals and works or any ])art thereof for the benefit of the district to the highest bidder, provided the lease shall not interfere Avith any i-ights that have been established. (Sec. 15-d as amended L. 1917." 758.) DlsfrWuflon. of irafer. — All waters distributed for irrigation pur- poses must be apjiortioned ratably to each landowner npon the basis of the ratio whicli the last assessment of each for district purposes bears to the whole sum assessed upon the district, with the proviso that any landowner may assign the right to the whole or any portion of the waters so apportioned to him. (Sec. 18, 670.) This ])royision has been abandoned in several States where it was formerly in force, and the more modern apportionment in accordance with beneficial use has been adopted. (See su|)ra. p. 70.) Powers. — Whenever an irrigation district in the development of its works has an opportunity, without increased expenditure, to ntilize its water for mechanical purposes, the lioard may lease the same. Notice must be given and the board must accept the best bid or reject all bids and reaclvertise for proposals. The district is pro- hibited from making a lease to exceed 25 years for such power privi- lege. It is pi'ovided that if the rental is not paid when due. the amonnt thereof shall be doubled, and if not ])aid within 90 days thereafter, the lease shall be forfeited together with all works con- structed, owned, used, or c(mtrolled by the lessees. (Sees. 100-105. 705. 706.) Similar provisions with a 50-year limit of duration of lease weie enacted in the act approved March 21, 1893, General Laws. 709. Tntersfafe districts. — Districts are also empowered to cooperate with irrigation districts in other States. (Chap. 591, L. 1917, 905.) The provisions foi- this purpose are ontlined in the general discus- sion aboA e (p. 82). Debt llrnitatioH. — The usual provision renders void any debt at- tempted to be incurred beyond the express provisions of the law, (Sec. 61, 698.) The board before the first assessment may incur debts up to $2,000. or, if the district has more than 4,000 acres, to one-half as many dollars as there are acres of land in the district, and for such purpose warrants of the district may be issued at not more than 7 per cent per annum interest. (Sec. 61. 693.) Xo purchase or lease of waters, water rights, or any other propert}' for any price oi- consideration in excess of $10,000 in any district whose area does not exceed 50,000 acres, nor in excess of $50,000 in any district whose area is over 50,000 acres and not over 200,(X)0 ' 1 There is an evident error liere in the statute as to provision for the classification of districts. 94 HANDBOOK OF IRRIGATION" DISTRICT LAWS. acres, nor in excess of 100,000 acres shall be binding on the district^ nor shall the consideration or any part thereof be paid or rendered nntil either petition by a majority of the holders representing a major part of the value of the land has been filed with the board^ and an order of the board shall confirm the transaction, Or a petition has been presented to the board signed hj not less than 500 peti- tioners, who must be electors or holders of title to land or possessory rights in the district, said petition to bear the signature of the owners of not less than 20 per cent in value of the land. Such peti- tion, however, is not required where the purchase or lease is specified in the plans approved by the irrigation district bond commission and adopted by the board of directors as provided in section 30 of the act or where it is among the purposes specified for any bond issue authorized bv vote of the electors. (Sec. 15-a as added bv L. 191T, 7.57.) Bonds — Purpose and authority. — Authority to issue bonds is given at the outset of the district enterprise and also when the funds result- ing from prior bond sales have been exhausted. (Sec. 30, as amended L. 1917, 761.) The board may acquire canals or works by purchase or condemnation or may exchange bonds for same or for capital stock in irrigation companies owning such canals or works \\\)OW such term.s and conditions as the board may deem best. (Sec. 61-b, as added, L. 1917, 769.) Following the making of plans and estimates of amount of monev necessary to be laised, the boaid is required to submit a copy of the engineer's report to a commission consisting of the attorney general, the State engineer, and the superintendent of banks for certification as legal investments for banks, insurance companies, trust funds, and State school funds in the manner and under the terms which we have outlined in the general discussion. (Supra, p. 43.) The commission is required to examine the report, make additional surveys and exami- nations if deemed proper, and report to the board of directors with statement of conclusions, particularly as to water supply, soil, adapt- ability to irrigation, the probable amount of water necessary, need of drainage, cost, and the like, together with an opinion as to the ad- visability of proceeding with the bond issue (sees. 30-a and 30-b. a? added, L. 1917, 762) , or as to the necessity for changes of plans. Same — Resolution hy the hoard. — The board of directors, after re- ceiving the commission's report, if it determine by resolution that the proposed plan is satisfactory, shall make an order determining the amount of the bonds to be issued. The law further provides that if the district shall issue bonds to carry out any plans approved by said irrigation district bond commission, it shall be unlawful for the district to make any material change in its plans without the consent of the commission. (Sec. 30-b, as amended, L. 1917, 762.) Saone — Petition and election. — Thereafter the board, when ]Deti- tioned by a majority of the holders of title or possessory rights, rep- resenting a majority in value of the said lands, or when petitioned by not less than 500 petitioners who are electors or holders of land, in- cluding the owners of not less than 20 per cent in value of the land, shall immediately call a special election upon the issuance of the bonds. (Sec. 30-c, as added, L. 1917. 762.) If a majority of the votes CALIFORNIA STATUTES. 95 cast favor the bond issue, the same is deemed authorized. (Sec. 30-c, as added, L. 1917, 7G3.) Same — TevnvH. — The bonds run foi- 40 years, the ])ayment upon the principal beginning 21 years after the date and running for the re- mainder of the ]^eriod. but the hiw provides that the bonds may be made payable at the end of a shorter period and the number of series may be made less than '20 if such propositions are presented and favorably acted uj^ou at tbe bond eU'ction. The interest rate is not to exceed 6 per cent. (Sec. 31, 678.) Said bonds and the interest thereon shall be paid from revenue derived from an annual assess- ment upon the land within the district, and all land within the dis- trict shall be and remain liable to be assessed therefor. (Sec. 33, as amended, L. 1917, 764.) Same — Proceedings in conflnnation. — Proceedings for the confirma- tion of bonds are optional after the issue of bonds or the levy of any assessment, the purpose being to determine the validity of the bond or the levy of such assessments. The action is a proceeding in rem. (Sec- 68, 696.) If the board fail to bring the proceeding, any district assessment payer may do so, the directors becoming parties defendant. (Sec. 69, 696.) Where the board has exchanged bonds or agreed to do so, the court, in its confirmation proceedings, shall determine whether the bonds when delivered under the terms of the contract shall constitute valid obligations of said district as against all persons. (Sec. 61-c, 694.) Same — Legif^lative cojifirmation. — Provision has been made for the legalization of bonds, issued and to be issued, sold by irrigation dis- tricts. In all cases subsequent to Januar}' 1, 1910, where the directors by resolution submitted the question whether or not bonds should be issued, and at th? election so b.eld four-fifths of the electors voting A'oted in favor of the issue, the povrer of the vdistrict to issue the bonds is declared legalized, ratified, and confirmed and valid, and tlie bonds are declared to be It gal and valid obligations against the irrigation district whether sold before or after the passage of the act. (Act approved May 2a, 1915. L. 1915, 837: Deering's General Laws, 707.) Moreover, numerous sj^ecial acts by way of legalization of bonds of individual districts have been passed by the legislature. Same — Miscellaneovs provi^ionf<. — ^A special provision with an elec- tion is provided for the reduction of the bonded indebtedness when the bonds authorized exceed the amount needed in order to carry out- the plans. If there are outstanding bonds, the assent of the bond- holders may be obtained to the reduction of the bonded indebtedness in the same fashion as is prescribed for the assent of the bondholders to the exclusion proceedings. If such assent is not obtained, no reduc- tion of the l)onded indebtedness can be affected. (Sec. 99^, 705.) The requirement that the assent of the holders of bonds not retired be obtained would seem unduly to hamper the procedure. It would appear that their assent is not necessary to a step which will enhance their security rather than otherwise. In case there be bonds voted, but not sold, provision is nuide that thev be destroyed after an election, which must carrv hy two-thirds majority. (Sees. 106 to 108, 706.) Special provision has also been made for the holder of bonds and interest coupons to surrender the same and have them canceled and 96 HANDBOOK-OP IRRTGATTOlSr DISTRICT LAWS. discharged after notice of hearing and consideration by the superior court, the proceedings being in rem. (Approved May 1. 1911, Deer- ing's General Laws. 721.) District const riu-tioii irorh. — The construction provisions are simi- lar to those in other States, the district retaining the right to construct under its own supei'vision if notice of award of bids does not result satisfactorily. (Sec. 53, 689.) During the construction work the State engineer shall have access to all plans and shall investigate same and make such reports to the board of directors as lie shall deem to be in the public interest as regards districts whose bond issues have been certified bv the State irrigation district bond conunission. (Sec. W?f-'A as added, L. 101 T, 7()8.) The State engineer receives copies of all information and reports, including financial statements, and must report thereon with such i-econimendations as he may deem jjroper. He may initiate examina- tion into the all'airs of any district or call upon the authorities to furnish desired information and i-eports. (Sec. 5-U, 600.) Where the disti'ict crosses any railroad the. owners of the railroad and the district unite in forming the intersections and ci'ossings. and if they can not agree, the district may condemn the right to cross. The right of way is given to districts over any lands of the State, and the waters and water rights belonging to the State are dedicated to the uses of the disti'ict. (Sec. .")('), 601.) Constnoction iritJiout use of credit. — In case the money raised by the bond sales is insufficient or the bonds be unavailable for the com- ])letion of the plan adopted and additional bonds are not voted, it is the duty of the board to i^rovide for the completion of the plan by the levy of assessments. First, however, an estimate of the amount required must be made and the question submitted to a vote of the electors upon the special assessment, a majority of the votes cast being necessary. (Sec. S-t, 680.) CoopcratMn with the Ihvited states. — Two acts for cooperation with the United States- under the reclamation law were passed in lOlT. That approved May 5, 1917 (chap. 160, 243), contains sub- stantially the provisions recited unrler the foregoing general dis- cussion for ( ooperation with the United States. It should be noted that as regards districts which cooperate with the United States the criterion for assessment is expressly the benefit derived to each tract. The statute thus departs from the ad valorem standard which pre- vails in the case of all other ii'rigation districts in California. In the ascertainment of the benefits derived by the re.spective tracts, the provisions of the contract betAveen the United States and the district, the Federal laws applicable and the notices and regulations in pur- suance thereof nmst be taken into consideration, and if the contract calls for the assumption by the district of indebtedness to the United States theretofore existing, there must be taken into account the pro- visions of existing contracts carrying such indebtedness and the amounts of such liens as may be released in pursuance of the contract between the United States and the district. The provisions of the general irrigation district law are made applicable, except as ex- pressly or by necessary implication modified. The district operation not related to cooperation with the Ignited States are not affected by the act. (L. 1917, chap. 160, 243.) An additional act was passed whereby not only irrigation districts but reclamation districts are authorized to enter into a contract with CALTFORXIA STATUTES. 97 the United States for drainage or irrigation of their lands or to [)revent ovei-flow under tlie provision of the reclamation extension act of Aiig-iist 13, 1914. It is i)rovided in snch case tliat the hoard shall provide by resolution foi- the pa_\iuents of the aiuounts to Itecouie (hie under the contract Avith the United States by assessment upon the lands benefited, the same to l)e collected by the county tax col- lector or by anv other officer authorized by law to collect assessments Avithin the" district. (L. 1917, 781.) The rights of way. water conduits, reservoirs, and similar property of an irrigation district are expressly exempted from taxation for State, county, and municipal ])urp()ses. (Sec. 00; (595.) The proN'isions for the assessmeut of State lands have already been recited in the geiieial discussion under that licad. (Su|)ra. ]). (H.) AVlien jnopei'ty is acquiied by the district under any lease or con- tract on the installment basis the consideration shall be paid out of funds derived froui tlie levying of annual assessments or from the col- lection of rates, tolls, and charges. The same option is given as to organization, operatiou. maintenance, and improvement expendi- tures. (Sec. 55, ()90. ) Assessment. — It is the duty of the assessor of the district to assess all real estate in the district at its full cash value, to prepare an assessment book showing the persons, lands, including city and town Jots, cash values, and other data. Improvements, including trees and growing crops, as well as buildings on lands or town lots, are exempt from taxation. (Sec. 85 as amended, L. 1917, 764.) In the event that any land which should be taxed for district purposes has lieen omitted from the assessment roll, special provision for the insertion of the same and the equalization of the assessment is made. (Sec. 39-e as added by L. 1917, 767.) Property which escaped payment for any previous year is assessable and falls under the same provisions and penalties otherwise applicable. (Sec. 35 as amended, L. 1917, 764.) Eqiudizatiori. — It is the duty of the board of directors after notice to meet for the purpose of hearing objections, if any, to valuations and to equalize assessments. (Sees. 37 and 38, 682.) Levy. — After equalization the board must levy an assessment upon the district lands in an amount sufficient to raise the interest and principal to become due upon district bonds and all sums to be- come due from the district before the next annual assessment on account of rentals, charges for lands and other property acquired under lease or contract, and all unpaid Avarrants and other obliga- tions reduced to judgment: also such an amount, not exceeding 2 per cent of the aggregate value of the lands, as the board may deem needed for general expenses. (Sec. 39 as amended. L. 1917, 765.) The secretary must compute the respective sums to be paid as an assessment upon the propertv enumerated in the assessment books. (Sec. 39-a as added, L. 1917. 765.) Special proA'ision is made authorizing the board, after a petition by the majority of the assessment payers, to make all assessments except special assessments payable semiannually instead of annually. (Act approA-ed Mar. 19, 1909,415: Deering's Genei'al Laws. 716.) RecmiTse — ^Yhere ofpoial 'neglect. — If the board of directors neglect or refuse to cause the assessment and le\ies t(^ be made, the duties 100047—20 7 98 HANDBOOK OF lEKIGATIOX DISTKICT LAWS. must be performed by the county assessor and the county board of supervisors. In such case the legal effect shall be identical with that resulting from action by the district officers, the district attorney of the county bringinp- suit for the cost thereof. In case the collector or treasurer of an irrigation district neglect to perform his duties the tax collector and the treasurer of the county must respectively per- form such duties, paying the funds to the county treasurer, who shall disburse the same to the proper persons and shall not pay any part to the treasurer of the district until satisfied that the valid obliga- tions for which assessment Avas levied have been paid. (Sec. 39-b, as added L. 1917, 7G5.) The district attorney of each county in which the office of any irri- gation district is located, must ascertain whether the duties relating to the levying and collection of assessments have been performed, and if he learn of neglect he must notify the county supervisors or other county official required to act. Unless such count}' officials pro- ceed with the performance of their duty the district attorney is re- quired to compel action by court procedure. In case complaint shall be made to the attorney general of the State that the district attorney of any county has not performed any duty devolving upon him. or that he is not acting diligently, the attorney general shall make an investigation and take such measures as may be necessary, if an}', to enforce the perfonnance of the duties relating to levying and collection of assessments. (Sec. 39-c as added by L. 1917, 766.) In case there has been a neglect to perform any such duty within the time required and such duty is subsequenth^ performed, the time within which all duties consequent upon the per- formance thereof must be performed is extended proportionately, together with the times when assessments become delinquent. (Sec. 39-d as added L. 1917, 767.) Delinqueut-tax sales. — Xotice of date of delinquency is required to be given and thereafter, besides the customary machinery of de- linquent-tax sale, the alternative remedy of suit againt the delinquent is specified by the statute. (Sec. ll-a, 685.) Prior to the delinquent- tax sale, following publication of the delinquent list, the owner may specify what portions of property, if less than the whole, he desires sold, or the collector may designate the same, the sale being made to him who will take the least quantity of the land or the smallest por- tion of an}' undivided interest against which the assessment may be delinquent. If there be no purchaser the property is struck off to the irrigation district, and the collector is credited with the amount. Property sold to the district may be conveyed following a resolution of the board fixing the price at not less than the reasonable market value. (Sep. 44, 686.) Bede?7iption. — The redemption of the projDerty may take place within five years from the date of purchase. (Sec. 47, 687), The 5-year period is not, however, operative as a bar to the dissolution of any iri'igation district. (Sec. 47^, 687.) Provision is made by supplemental act for the former owner of land sold for delinquent assessments and purchased by the irrigation district to redeem such property by paying interest at the rate of 2 per cent per month and all assessments and other charges and penalties. (Act approved Mar. 10, 1891, L. 1891, 53; also Deering's General Laws, 708.) CALiroEXIA STATUTES. 90 Speokd assessments and emergency a[)propriation.s. — The board may. Avhenever deemed ndvisahle. call a special election for the raising of money for any disti'ict purposes at wliich a two-thirds majority of the votes cast is needed to authorize such special assessment. It is provided, however, that in case of an unexpected emergency inter- rupting the flow of water the amount of indel)tedness incuned in repair, not to exceed $4(),00(), may, in addition to the assessments herein provided for. be levied by the adoption of a resolution by at least four-fifths of the members of the board without the suljmission of the ([uestion to an election. (Sec. 59. as amended L. 1U17. 7(58.) The rate of special assessments levied is ascertained by deducting 15 per cent for anticipated delinquencies from the aggregate assessed value of the property as it appears on the assessment roll for the current yeai-, and then dividing the sum voted by the remainder of such aggregate assessed value. The collections are made at the same time and in the same manner as other assessments provided for by act. (Sec. 00, 693.) Tolls and eharyes. — The board of directors is authorized to make tolls and charges for the use of water payable in advance, and in case the same are unpaid thev mav be added to the annual assessment ensuing. ( Sec. 39-f. as added L. 1917, 768.) Funds. — The funds are divided into the bond fund, construction fund, and general fund (sec, 67, 695), with authority to transfer to the general fund moneys remaining unexpended after provision for the purpose has been made. ( Sec. 67-a, as added L. 1917, 769.) Kxclvsion proceedings. — Petition for the exclusion of lands follows somewhat the usual course (sec. 74, 697), and Avhen the matter is heard the board is required to exclude from the district lands which can not be irrigated from or which are not susceptible to iri-igation from a common source or by the same system of works, with the pro- viso that no land irrigated by pumping from underground sources shall be entitled to exclusion on that account, if it slmll be shoAvn that such land is or will be substantially benefited by sul)irrigation from the district works or by drainage provided or required by law to be provided by the district. But no owner shall be required to pay assessments other than for interest and principal on the bonds on any land which when the district was organized was irrigated by means of water pumped from an underground source and which has been con- tinued each j^'ear to be irrigated exclusively by such means. (Sec. 78. 699.) If there be outstanding bonds the holders thereof may assent to the exclusion, and in such case the lands so excluded shall be released from the liens of such outstanding lionds. (Sec. 79, 699.) Bondholders protected .—N othing in the act, however, is to operate to release any land excluded from any obligation to pay or discharge any lien of valid outstanding bonds or other indebtedness of the dis- trict existing when the petition for exclusion was filed, but said land shall be held subject to all outstanding obligations then existing as though the petition had not been made or the land excluded, and all remedies to compel payment remain as before, except that lands so excluded shall not be chargeable for any obligation incurred after the filing with the board of the petition, and, further, that the provisions shall not applv to outstanding bonds Avhose holders have assented to the exclusion. " (Sec. 84, 700.)^ 100 HANDBOOK OF IRRIGATION DISTRICT LAWS. Annexation. — Petition for inclusion may be made by holders rep- resenting one-half or more of a contiguons body of land adjacent to the boundary of the district. (Sec. 86^ 701.) The public lands of the United States adjoining the boundaries of a district may be included by order of the board of directors without a petition therefor. If the inclusion would be injurious to the lands of the district, either impairing the Avater right or requiring greater expense, the board may prescribe conditions by providing for a priority of water right or requiring the payment of an additional charge, as may seem just. " If such inclusion is upon petition of property owners, all such property owners must sign and acknowledge an agreement with the district, specifying such conditions and describing the land so to be included." (Sec. 00, 702.) About the usual i)rovision is made for an election in case tliere is opposition to the inclusion, a majority of the votes being sufficient. (Sees. 91 to 97, 703 and 704.) Dissolution. — The dissolution proceedings are more elaborate in California than in most of the States. Where contract has been made with the United States, no proceedings shall be entertained by any court until the written assent of the Secretary of the Interior has been given to the dissolution. (Act Fel). 10. 1903, L. 1903, 3, as amended; Deering's (ireneral Laws. 711.) The proceedings may be initiated under alternative plans: (a) The petition for dissolution must be signed by a majority of the holders of title, or evidence thereof, to district real property rep- resenting a majority in value. The amount of all indebtedness must be set forth, together with the assets, including irrigation system and water rights. (Id., 711.) {h) If. however, an irrigation district has no indebtedness not barred by the statute of limitations and no assets and has ceased to l)e a going concern and is without an irrigation system carrying water to the residents of the district, the petition need only be signed by two-thirds of the qualified electoi-s and by the holders of title, or evi- dence thereof, representing at least 50 per cent of the acreage and not less than 50 per cent in value of all lands. In such case the plan of dissolution need only show that there is neither indebtedness nor assets. As regards the proposal for the liquidation of indebtedness, no assent on the part of the holders of any evidence of indebtedness barred by any statute of limitations need be obtained. (Id., 712.) BoimJ holders protected. — The ])etition is filed with the board of directors who call an election, ])rovided. liowever, the assent of all known holders of valid indel)tedness against the district not barred by the statute shall be obtained, if any there be, and that provision shall be made in the plan presented for the payment of creditors who do not assent. (Id., 713.) The electi(m must be carried by two-thirds of the votes cast, where- upon the board files in the superior court a petition to determine the validity of the proceedings and of the proposed dissolution plan. This is in the nature of a proceeding in rem and jurisdiction is ob- tained by pul)lication. Eights of all parties are determined by the cori't subject to the right of appeal within 30 days after the entry of judgment. Court determines the regularity and the legality of the proc^^edings. (Id.. 713, 714.) COLORADO STATUTES. 101 A corporation iiiay lie oi\i»'aniz('d I'or the ])urpose of ac«iiiiriii't>- the annual assessments levied against such tracts or subdivisions in carrj^ing out the purposes of this chapter." The board shall then make a list of apportionuients Avith the amount and rate i)cr acre or may embody the information u))on a map. The list or uiap umst be filed in the office of the State engineer by way of copy and " whenever thei-eafter any assessment is made either in lieu of bonds or any annual assessment for raising the inter- est on bonds or any portion of the })rincipal, it shall be s]:)read upon the lands in the same i)roi)ortion as the assessment of benefits, and the whole amount of the assessment of benefits shall equal the amount of bonds or other obligations authorized at the election last above men- tioned."' (8ec. 23!)0, as amended. L. 1911, 199, dui)licated, 472.) Notice shall be given to the OAvners of the meeting to be held for the assessment and apportionment: and it is provided in Idaho (an exceptional clause) that a postal card be mailed oi- delivered to each landowner and mailed to nonresident landowners with the provision that for the purpose of notifying nonresidents and others whom it is not reasonably practicable to notify by mail, the notice shall be published. The board at the meeting must hear all evidence and classif}' the land in such manner as to secure an equitable assessment. Any j)erson who then fails to appear is precluded from contesting except after a special apijlication to the court upon confirmation pro- ceedings showing reasonable excuse for such failure. If an owner objects before the board to the assessment as finally fixed, his ob- jection being oA^erruled, such objection is deemed appealed to the dis- trict court to be heard at the confirmation proceedings. (Sec. 2400.) The secretary of the board is the assessor of the district and must prepare an assessment book. In case the assessment plan (rather than tolls and charges) is used for the purpose of maintaining and operating the works, the board must annually proceed to levy an assessment on all lands for such purposes. This assessment shall be proportionate to the benefits received growing out of maintenance and operation of the works. The board, after notice, meets as a board of correction and makes such changes as mav be found equitable. (Sees. 2407 and 2400 as amended by L. 1911,' 194; also sec. 2408.) The assessments annually become a lien against the land assessed, the liens having priority, as regards the bond issues and contracts with the United States if both are outstanding, in the order of the respective dates. (Sec. 2411 as amended L. 1915, 315.) The assessments are payable in two installments, and provision is made for special date of delinquency in order to facilitate payment to the United States at a special date named in Federal contracts. (Sec. 2412 as amended L. 1915. 206.) Special assessments. — A special election which must be passed by a tAvo-thirds majority may authorize a special assessment for raising money to be applied to any purposes under the act. The assessment so levied is computed and collected in the same manner as other assessments provided by the act. (Sec. 2391.) Drainage. — Any irrigation district may, Avhenever necessary, for the benefit of lands actually requiring drainage or for the protection 112 HANDBOOK OF IRRIGATION DISTRICT LAWS. of other lands ^Yithill said district, cause drainaoe canals and works to be constructed. I'his may be done whether the irrigation works have actually been constructed or acquiied or not. To this end the dist]ict shall have the same power and authority as it has respectino- irrigation. (L. 1917, 74.) Confrination. — The law for confii-niation proceedings in Idaho in- cludes not only the organization and the authorization of bonds, but the proceedings in the matter of tiie making of assessment list and apportionment. Separate petitions in the ^•arious portions of the proceedings may be filed and remaining proceedings undertaken later, but such further proceedings are not to be in the nature of a rehearing of the luatter previouslv decided. (Sec. 2401 as amended L. 1915, 391.) In the findings of the court the assessment list and apportionment may be corrected to conform to the rights of the pai-ties and a final decree approving and conhrming the proceedings mav be rentlered. (Sec. 2403.) , ' • Irrespective of the confirmatory proceedings above referred to, it is provided that no action shall be commenced or defense made affecting the validity of the organization after two years from the entering of an order organizing the district. Bond sales. — The board is authorized to sell the bonds from time to time in such quantities as may be necessary, and bonds may be de- posited with the United States at 90 per cent of their par value, but the board is prohibited from selling the bonds at less than par value and accrued interest. They may be sold without advertise- ment or after advertisement to the highest bidder. If it is found impossible to sell the bonds or best to withdraw the same from sale, the bonds may be canceled and the board may levy assessments to the amount of the bonds canceled. Assessments in lieu of canceled bonds are collected in the same manner as assessments levied under the remaining provisions of the act, but such assessments shall not in any one year exceed 10 per cent of the total bond issue authorized by the district unless a greater assessment be authoi-ized bv a majoritv vote. (Sec. 2404, as amended L. 1915, 313.) In lieu of the sale of bonds and payment for all construction work in cash, bonds may l)e issued as such payment and delivered directly to the contractor. Maintenance, interest, and power chargfes may be included in any contract for construction for any period agreed upon not to exceed three years, and when so included the charges mav be paid in bonds of the district. (Sec. 2404-a. as added by L. 1913, 541.) The bonds and interest shall be paid by revenue derived from as- sessment upon the land of the district, and all of the land in the dis- trict shall be and remain liable to be assessed for such payment. After a two-thirds majority of the electors shall vote favorably at a special election the board of directors, as regards any portion of the period from the time that bonds begin to bear interest until five years after water has been used on the district lands, may pay any part of such interest with the proceeds of the sale of coupon bonds to be issued and sold for said purpose in lieu of paying the interest by revenue derived from assessment. The bonds so issued and sold IDAHO STATUTES. 113 shall have tlie i^amo prioi-itv of lien as ordiiiaiv district bonds. (Sees. 2405 to 2405-{', as amended L. 1915. 118.) Delvnquent ttiM-' sales. — Ii-riiration districts are authorized to be- come purchasers at delinquent tax sales, with the same ri^lits as private purchasers. The lands so acquired may be conveyed by deed by the president or secretary of the board after resolution of the board. (Sec. 2414.) The redemption period is three years from the date of sale. (Sec. 2415, as amended L. 1917, 478.) Bkls and eontrcwt. — The bids for this work may be rejected and readvertisement for bids issued, but the board is not authorized to undertake any work and use the construction fund therefor except after a petition of 50 or a majority of the landowners of the district. 'No contract shall be let unless there is sufficient money available for full payment. (Sec. 2416, as amended L. 1915, 315. and 2417.) Expenses— How defrayed. — For oro-anization. operation, manaofe- ment, repair, and improvement ])urposes the board may either fix lates of tolls and charges for irrioation or may levy assessments or employ both tolls and assessments. In case assessment therefor is made, the procedure, except where otherwise provided, ]oarticularly in sections 2407 and 2409, is the same as that relating to the payment on bonds. Special assessments become a lien when they are ordered. Tolls mav be made pavable in advance. (Sec. 2419, as amended L. 1911,201".) Rights of way are dedicated over State lands. (Sec. 2421.) Electric-pmmr plants. — The board is o^iven the power to construct and operate electric-poAver plants and other requisites for ffeneratinpf and transmitting electric power and for pumping water for irriga- tion and domestic use or to contract for such purposes. The board may contract for sale of surplus power generated for delivery at the plant or within the district. No such contract shall extend for more than five years, nor until ratified by a majority vote of the electors mav it involve more than $1,000. (Act approved Mar. 8, 1915, 137.) Annexation. — Annexation to a district may be initiated by holders of title representing one-half or more of any body of adjacent lands. If there be objection and an election be held a majority of the votes last is sufficient for annexation. (Sees. 2423 to 2433.) Exclusion. — Exclusion of lands from any district is provided for in three cases, one of which must be specified in the petition, either that the lands are too higli to be watered by the district or that the owners have installed a sufficient system independent of the dis- trict for irrigation because of the failure caused by the district not ownino; a sufficient water right or that the lands are not agricultural or farming lands. (Sec. 2434, as amended L. 1911, 102.) The lands excluded, however, are not relieved of their obligation to pay their proportionate share already created and existing over any bonded indebtedness of the district, and the lands shall remain a part of the district for the purpose of discharging the bonded debt. No provision is made in this connection for the contract debt to the United States. (Sec. 2436 as amended L. 1911, 103.) An appeal from the decision of the board denying the ])etition lies to the district court. (Sec. 2437 as amended L.1911, 104.) Dissolution and modifieation of houndaries. — A series of combined provisions for modification of boundaries by way of exclusion of land 160047—20 8 114 HANDBOOK OF IRRIGATION DISTRICT LAWS. and for the dissolution of the district is in force. The proceedings for either form of relief are begun by a petition by 25 or a majority of land owners in the district asking for an election. The petition either shall state that the outstanding bonds, "warrants, and other obligations against the district have been fully satisfied and paid or shall set forth reasonable grounds for the belief that the creditors of the district will assent to the proposed modification or dissolution. At the election, after notice, all persons having the qualifications of electors under the general laws of the State and resident in the dis- trict may vote. The election must be carried by a majority of those voting, and thereafter the board must file in the district court a peti- tion that the proceedings be examined and confirmed, setting forth all items of indebtedness of the district, with the name and residence of the creditor. The proceedings are declared to be in the nature of a suit to quiet title with respect to such district lands as are proposed to be affected. The board is plaintiff and the creditors are parties defendant. If it appears to the court from proof that there is no indebtedness, or if the holders of the outstanding indebtedness have filed no objection to the proceedings or have filed their consent thereto, the court shall enter decree confirming proceedings, describing the lands involved, which thereafter are considered unaffected by any of the matters done by the district while such lands were a part thereof. The election is declared ineffective until the proceedings have been con- firmed by a decree of the district court. (Sees. 2437-a to 2437-d, in- clusive, added by L. 1917, ch. 167, 497.) References to the provisions for cooperation between districts un- der the Idaho law (sec. 2438) are made in the general discussion. State lands. — No State lands included in any district shall be as- sessed, and the assessment and taxation provisions are expressly declared inapplicable to such lands. (Sec. 2439 as amended L. 1917, 493.) Kaksas.^ The irrigation district law of Kansas is b}' no means as adequate as those of most of the States. The act was passed in 1891 (ch. 133, art. 7), and will be found in the General Statutes of Kansas, 1915 (sec. 5618 to 5641, inclusive, and sees. 5666 to 5673, inclusive), hav- ing been little amended since its first enactment. Its provisions do not admit of as general utility for the reclamation of arid or semi- arid lands as those of most States. Organization. — Petition for the formation of a district is ad- dressed to the board of county commissioners and must be signed \)Y not less than three-fifths of the resident landowners of the pro- posed district. At the election a three-fifths majority of those vot- ing must be secured. (Sec. 5623.) Officers. — The officers of the district consist of a president, secre- tary and treasurer, who are the board of irrigation commissioners. (Sec. 5624.) ■ The board is authorized to appoint a superintendent of the dis- trict whose salary is prohibited from exceeding $1,000 annually. » See p. 87 for the purpose and scope of this discussion. KANSAS STATUTES. 115 Bunds. — The method of issiiino- bonds is cumbei'some since a peti- tion must be addressed to the board of county commissioners (sec. 5627) askinfr foi; the callintr of an election and this ))etition must be signed by three-fifths of the resident landowners of the district (sec. 5628). This election, likewise, must pass by three-fifths of the votes cast (sec. 5630) and the district is prohibited from issuing bonds to exceed $10 per acre in the aggregate, the bonds running for not less than 5 nor more than 30 years (sec. 5626). Anotlier election must be held to authorize the purchase or construction of irrigation works with such bonds if such a step should be undertaken (sec. 5632). Distribution of water. — The board has charge of the distribution of water, being authorized to charge such rates as it may fix, subject to the power of the county commissioners in the fixing of maximum rates for the use of water, and interest shall not exceed 6 per cent per annum. (Sec. 5626.) Assessment and levy. — The sole provision relating to the assess- ment and levy to be made by the district is the following: If the quarterly repdrt of said treasurer of said lioard for .Tune shall disclose to said board of irrigation commissioners that there is not suflicient money in the hands of the treasurer of said board to pay tlie necessary cur- rent expenses, and pay the interest on the bonds of said district, and create a sinlving fund for the redemption of the said bonds, then it shall be the duty of said board, and it is hereby authorized and empowered, to levy a tax on all of the real estate dependent upon such works for irrigation in said district to meet the expenditures as in this section specified. (Sec. 5638.) Ttoo or more counties involved. — A separate act was passed in 1901 (ch. 234), providing for the formation of irrigation districts com- prising contiguous territory lying in more than one county. In such cases both the petition for formation and that for the holding of an election to vote bonds are required, in contrast with the pro- visions elsewhere, to be signed by three-fifths of the resident land- owners in each respective county as an individual unit. The issuance of bonds must be authorized by three-fifths of the voters of each of the several portions of said district lying in each of said counties at an appropriate election. (Sec. 5666.) CHticism. — It will be noted that the maximum bonded indebted- ness is insufficient for general reclamation propositions since a maxi- mum of $10 per acre is prohibitive in most reclamation enterprises; also the taxing provisions are extremely meager. Moreover, there are no provisions for modification of the boundaries of the district for judicial confirmation nor for cooperation with the United States. Montana.^ The Montana irrigation district act, approved March 18. 1909. re- pealed an earlier act, and the law will be found in the session laws for that year, pages 254 to 289. and the amendatory acts constituting chapters 110 and 127 of the Session Laws of 1913, pages 452 and 475 to 479: chapter 145 of the Session Laws of 1915. pages 359 to 377, and chapter 153, Laws of 1917. pages 323 to 337. The Montana law is unique in providing no elections by the land- owners, either for organization or for the authorization of bonds. ' See p. 87 for the purpose and scope of this discussion. See also Addenda, p. 167, for 1919 amendments. 116 HANDBOOK OF TEETGATTOlSr DISTRICT LAWS. Formation. — Organization in this State is undertaken by petition to the District Court, signed by a majority in tlie number of the holders of title or evidence of title of the irrig-jible lands, who must also represent a majority in the acreage thereof. (L. 1917, 328.) Hearing is had upon the petiti(m. (Sees. 2, 3, 4, L. 1909. 255.) Entry men on the public lands of the United States are deemed holders of evidence of title under the act. (L. 1917. 323. 4.) Purposes. — An irrigation district may be formed, not only to pro- vide for irrigation, but also for the construction of works, includ- ing drainage, in cooperation with the United States or for the gen- eral operation or maintenance of the district. (L. 1917, 323.) Lands having prior mater rights. — Lands having prior water rights appurtenant thereto shall not be included in the irrigation district unless each owner shall consent in writing that his lands be thus included. Districts formed to cooperate with the United States, however, may extend their boundaries to include such lands upon j)etition of the owners of two-thirds only of the acreage of the lands to be included. Moreover, lands with water rights appurtenant served by a system supplying ovei- 10.000 acres may, in the discre- tion of the court, be included in the proposed district on a petition of at least 65 per cent, both in number and acreage, of the holders of the land having water rights appurtenant thereto and served by the same system of irrigation works. (L. 1917, 331.) Hearing on organisation petition. — The hearing before the court is final as to the organization, and is not only announced by publi- cation as in other States, but notice is sent to nonresident holders of title by mail prior to the hearing. (L. 1909, sec. 3.) The method of securing jurisdiction by mailing copies of the petition to non- residents is also unusual and constitutes a less efficient means of acquiring jurisdiction than that of notice by publication. If it is desired to require notice to nonresidents by mail, a provision such as that in the Oregon statute is preferable and less likely to create a flaw in the proceedings. (See Ore. L. 1917, p. 744.) At the hear- ing the court may make such changes in the district boundaries as may be deemed advisable, excluding lands which in his judgment will not be benefited by the system. (L, 1917, 324.) Finding of court conclusive. — The court's finding is declared to be conclusive upon all the owners within the district that they have assented to and accepted the provisions of the act unless appeal bo made to the Supreme Court within 60 davs after the entrv of tlie order. (L. 1917, 326.) Board of commissioners. — The management of the district is en- trusted to a board of commissioners. The first board, which in most instances would be charged with the principal constructive duties, is appointed by the court. (L. 1917, 326.) Thereafter it is elected by the people. (L. 1913, 264.) C o nstmction iKorh. — The board is precluded from having construc- tion work in excess of $5,000 done by the district, being required by law to let contracts for all the larger work. This does not applj'^ to work done in cooperation with the United States. (L. 1915. 367.) Prior to undertaking the construction of the irrigation system the engineering plans are required by the Montana law to be prepared in full detail for submission to the board of commissioners. After the board arrives at a determination of the amount necessarv to be MONTANA STATUTES. 117 niised, notices of siu li deteriiiinatioii are required to be j>iveii by letter to all perilous oi- corporations holding title or evidence of title to lands within said district at their last known post-office ad- dress. (L. 1917. 329, 30.) Contract with the United States. — Contract with the United States is authorized for the construction, operation, and maintenance of works necessary for the delivery and distribution of water therefrom under the provisions of the Federal reclamation act and all iicts amendatory thereof or supplemental thereto, and the rules and i-egulations established thereunder, or for a water supply under any act of Congress permitting sucli contract. The board is also author- ized to become a fiscal agent for the United States \uuler the icciaiun- tion act. (L. 1915, 360.) Qualifications of electors. — Persons holding title or evidence of title to land within the district are entitled to vote at elections if qualified as electors under the general and school laws of the State, or if guardians, executors, administrators, or trustees residing in the State, or if domestic corporations (in which case they shall vote by their duly authorized agents). An elector is entitled to cast one vote for each 40 acres of land or major portion thereof owned by him within the district. Any elector, however, owning 20 acres or less is entitled to vote. (L. 1909, sec. 19.) - Nooninatimis. — Provision for the filing of nominations on the part of five electors is made with the express proviso that no elector is disqualified from voting for an}^ qualified person, whether the name appears upon the official ballot or not. (L. 1909, sec. 20.) Change of boundaries. —The provisions for a change of boundaries are coupled with a declaration that such change shall not impair or discharge any contract, obligation, lien, or charge for or upon which the district was or might become liable had such change not been made. (L. 1909. sec. 23.) The petition for inclusion of additional lands need not be signed by the holders of all lands proposing to be adnntted, but only by signers representing not less than tw'o-thirds of the acreage thereof. (Sec. 24 of L. 1909, as amended by L. 1915, 363.) It is provided that where contract has been entered into betAveen the ITnited States and the district no such order shall be rendered until the assent of the Secretarv of the Interior, in writino;, be filed. (L. 1909, sec. 24 as amended by L. 1915, 366.) Change m assessable area. — Novel provision is made in Montana relative to lands included Avithin the boundaries of districts where the irrigable acreage is fixed at a greater area than actually exists. The owner of such lands desiring a reduction may petition the court to have the area adjudicated, the statute prescribing in detail what must be set forth therein. (L. 1915, 364.) A decree is finally ren- dered after publication determining the irrigable acreage and upon such degree future assessments are based and past assessments are adjusted in favor of the landowner should the decree lessen the supposed irrigable area. Such decree is forever conclusive upon the parties (Id. 366). Lease of irngation system:- — The commissioners may lease in whole or in part the irrigation system or the Avater supply of the district provided a majority in number and acreage of the district owners 118 HAISTDBOOK OF IREIGATIOjST DISTRICT LAWS. file their written consent to the making of such lease. (L. 1909. 272.) Wafer rights and apportionment. — The water is appurtenant to the land, the owner, however, having the right to assign the use thereof for one season in so far as not required on his own land. (L. 1909, sec. 32 as amended by L. 1915, 368.) In the event of a short- age the supply throughout the district is reduced proportionately ex- cept that where the right to the use of water is secured in accordance with the Federal laws the apportionment is made in compliance therewith. (L. 1909, sec. 33, as amended by L. 1915, 368.) Substitution of toaster. — Owners of lands, whether within the dis- trict or not, already entitled to water may arrange by contract with the district for the substitution or exchange of water, retaining by statute the privilege of resuming their former water right whenever the receipt of the substituted water shall be prevented. (L. 1909, sec. 36 as amended by L. 1915, 369.) Irrigated lands exempt frotn charges. — Except by consent of the owner, district lands already under irrigation can not be taxed for the costs of construction or for interest or principal of bonds but only for operation and maintenance. (L. 1909, sec. 37, as amended bv L. 1915, 369.) Limitations on indebtedness.- — Amendment of the usual provision pioliibiting the incurring of debts in excess of the express provisions of law has been made in Montana in favor of organization expenses, surveys, plans, data, etc., and in case of repairs occasioned by unfore- seen contingencies. In such case an additional indebtedness is au- thorized by the Session Laws of 1913. Two acts were in the same year enacted. One permits an indebtedness aggregating one-half dollar per acre. (L.. 1913, 452. approved Mar. 17, 1913.) A later act, how- ever, permits an indebtednes-s of one dollar per acre. (L. 1913, 475, approved Mar. 18, 1913.) Bonds — issue. — Bonds are authorized by petition of the landowners instead of by election, as elsewhere. The petition requires the signa- tures of a nuijority in number and acreage of the holders of title or evidence of title and is addressed to the board of connnissioners, specifying the general tenor of the bonds. Upon the filing of such petition for bonds, the board shall direct their issuance and provide for an assessment. Similarly an indebtedness in lieu of bonds by con- tract with the United States is authorized by petition. Petition for authoritv to issue bonds is required to " specifv the rate of interest thereon.'"' (L. 1909, sec. 40, amended by L. 1917", 332.) Bonds — confirmation. — Within 10 days after directing the issuance of l)onds. the board must petition the district court to determine the validity of the proceedings relative to the bonds and assessments. After clue notice, hearing is had upon the petition, at which time any person interested may appear and contest the proceedings, and appeal from an adverse decision. The decree of the district court (unless appealed from) is forever conclusive upon the world as to the validity of the bonds and assessments. (L. 1909, 276.) Same — matuHty. — Bonds may be made to mature serially or not, in the discretion of the board, but shall not run for more than 30 years from the date of issuance. (L. 1909, 279.) Same— registration. — The board mav. if it desires, provide for the registration of bonds. (L. 1909, 280.)' ' MONTANA STATUTES. 119 Lien of bonds. — Bonds so issued, and all amounts to be paid to the Ignited States under any conti'act. shall l)e a lien upon all the lands originally or at any time included in the district for whose benefit the district was organized or for whose benefit the contract Avith the United States was made. This does not include lands merely ex- changing water within the district, heretofoi'e mentioned. (L. 1917. 333.) Assessment. — The debt shall be apportioned upon each 40-acre tract, and every sejjarately owned subdivision thereof, l)y dividing the total principal of the indebtedness by the numlier of acres of land within said district actually irrigable from its system of Avorks, and every acre of said land shall bear and be assessed for its equal propor- tion thereof and the interest accruing upon such proportion thereof. An owner may. at the time of annual tax ])ayment. discharge his lands from the lien, both as to principal and interest, by paying in full the total sums assessed against his lands with interest thereon to the end of the year in which payment is made. Such ]:)ayment shall be applied by the district to the retirement of the bonds, if possible; otherAvise. the money shall be placed in a sinking fund and invested as provided by laAv. (L. 1917, 335.) These provisions for appor- tionment of the debt and discharge of the land from obligation Avere injected into the Montana laAv in 1917. The apportionment and discharge provisions above outlined are helieved to be subject to serious objection from the standpoint of the isecurity of the creditors of the district and criticism of it is offered in the general discussion. (See page 57.) Equalisation. — Provision is made for the equalization of the ap- portionment and assessment at the hearing on confirmation in the district court, at Avhich time a dissatisfied oAvnor may appear and object. Any district formed before the passage of 1917 act may avail itself of it. Avith the consent of the OAvners and all holders of the bonds of the district. (L. 1917, 335.) Where lands are added after the construction of the irrigation avorks, they are charged Avith such proportion of the indebtedness for such works as the district court shall decide, and the total in- debtedness reapportioned over the entire area of the district. (L. 1917, 335, 336.) Annval levy. — Levy for general expenses is made each year and charged against the lands in the manner outlined above and with a similar provision for the discharge of indiAddual tracts of land from lien by payment. (L. 1915, 374.) Futuls for payment of bonds. — When more than one series of bonds sliall have been issued by a district, the funds for the payment of each series shall be kept separate and distinct. (L. 1909, 284.) Collections niid disbursements.— ^\\^ county treasurer shall collect assessments of the district at the same time and in the same manner as county and State taxes (L. 1909, 284), and shall be the custodian of the district funds, disbursing the same upon orders signed by the president and secretary of the district board, except as to pay- ments on boiuls and interest and under contract Avith the United States, in Avhich cases no order shall be necessary. (L. 1915, 375.) The district moneys shall be i)roperly divided into separate funds, and the county treasurer is liable u])on his official bond for the safe keeping and proper disbursement of such funds. (L. 1915, 376.) 120 HANDBOOK OF lEKIGATION DISTRICT LAWS. Delinquent taw sales. — Sales of land for unpaid taxes and assess- ments shall be made in the same manner as for State and county taxes, the right of redemption likewise being identical. There is no j^rovision for the district to purchase such lands at tax sale, but when the}^ are struck off to the county, the county treasurer is required to give to the district a debenture certificate for the amount of the taxes and interest due to the district. This certificate draws interest at the rate of 1 per cent a month, and may be negotiated by the district. When sold the lien of the district vests in the purchaser until the tax is collected and the certificate paid. (L. 1913, 476, 477, 478.) Liability of district officers. — In addition to liability upon their bonds, officers guilty of violation of duty are subject to removal from office by the district court as the result of proceedings instituted for that purpose by any taxpayer of the district. (L. 1909, 286.) Right of icay. — The right of wav over State lands is expressly granted. (L. 1909, 270.) District hon/ls as investmen^.s. — The law prescribing the authorized investments for insurance companies of Montana is amended to in- clude the bonds of any irrigation district organized under the laws of the State among the lawful investments. (L. 1913, 24.) XEBRASKA.^ The Nebraska irrigation district law will be found in the Revised Statutes of 1913, sections 3457 to 3528, inclusive, as amended or en- larged bv chapters 68. 69. 205. laws 1915. and chapters S. 80, 81, 82, 83, 84, 190, 191, 192, 193. 195, 197, laws 1917. Petition for formatioh. — The petition for organization must bo signed b;\' a majority of the electors who own lands or hold leasehold estates oi' who are entrymen of Governnient lands. The electorate includes residents of Nebraska owning not less than 10 acres, entry- men of Cxoveinment land within the district or residents of Nebraska holding leasehold estates to not leas than 40 acres of State land within ^he district, such estates to continue for a period of not less than five years from the date when the elector seeks to exercise the franchise. The land included must be susceptible of one mode of irrigation from a common source and by the same system of works. The provision is added that where waterAvays have been constructed before the passage of the act having sufficient capacity to water the land thereunder for which water has been appropriated, the water- ways and franchises and the land thereunder shall be exempt from the operation of the law unless the district be formed to purchase such waterwavs and franchises. (Sec. 3457, as amended L. 1917, 187.) Irngation plan. — More than usually' elaborate requirements are imposed with regard to the submission of engineering details with the petition. The petition must be filed with the State board of ir- rigation for four weeks before the hearing, and the secretary of such l>oard must examine and report to the county board for the hearing. The board may then amend such plan of irrigation before calling the election. The number of divisions and directors may be submitted to the electorate so as to provide for any multiple of three divisions ' See p. 87 for the pui-pose and scope of this discussion. See also Addenda, p. 168, foi 1919 amendments. NEBRASKA STATUTES. 121 and directors if so voted. One-third of the directors retire each year. An election upon a i)r()posed chanoe in the niiml)er of dii-ec- tors is called n])()ii a })etiti()n 1»\ 20 per cent of the electors. (Sec. ^458, as amended L. 1917, 191.)' Organization election. — The or^janization election is conducted in accordance with the <>eneral laws of the State and a majority of the votes cast is sufficient. (Sec. 3459.) Officerfi. — The oHicers. in addition to the directors, consist of an assessor and a treasurer who are elected by the voters of the district. (Sec. 3400, as amended L. 1915, 170.) Distribution of '^/'afe/'.— Water is apportioned ratably upon the basis of the ratio Avhich the last assessment bears to the whole sum assessed upon the district. The water right attaches to and follows the tract to which it is apportioned under lease or sale. The board, however, is authorized by by-law to provide for the suspension of water delivery to any land upon whicli irrigation taxes levied shall remain due and unpaid for two vears. (Sec. 3465 as amended, L. 1917, 194.) Transfer of prater right. — If any tract of land to which a water right attaches shall become subiri'igated so that water is no longer of benefit for irrigation purposes, the owner may apply to the board to exclude such lands from the district, releasing all claim to a water right upon such land and applying for a permit to transfer his right to any other land upon which it may be profitably used. He must apply to have such new^ tract included within the boundaries of the district and the tract formerly entitled to water excluded. The order of exclusion and inclusion and the transfer may then be made. A certified copy of the order is filed with the register of deeds. This section must not be construed to authorize the board to in- clude any tract unless the owner obligate the same to pay the same rate per acre as all other lands have originally paid or have been obligated for in the matter of construction costs. The board must make all necessary arrangements for lateral rights of way from the main canal to every tract of land subject to assessment (Id.) Status of district property. — -After the customary provision that the district holds all property in trust for uses under the act, pro- vision is made that the board may convey property in whole or in part to the United States in trust or to any trustee for any period not exceeding 30 years, when authorized to do so by the affirmative vote of a majority of the (lualified electors voting on the proposition after notice as outlined in the section. (Sec. 3467 as amended L. 1917. 196.) All of the engineering work must be done under the direction of a competent irrigation engineer and certified by him. The board must submit a copy of the engineering report to the secretary of the State board of irrigation, highways, and drainage, who must file a report with the board containing such matters as the secretary of the State board may deem desirable. (Sec. 3469.) Annual repoii. — Provision is made for an annual report by the board of directors to the secretary of the State board of irrigation in regard to construction work, plan of irrigation, etc. The statute provides for the seci'etary making suggestions and recommendations to the district board as lie uiav deem for the best interest of the district. (Sec. 3469.) 122 HANDBOOK OF IREIGATIOlSr DISTRICT LAWS. Bonds. — -Tlie directors then determine the amount of money neces- sary and call an election upon an issue of bonds, the said issue not to exceed the actual estimated cost of construction and purchase, to- gether with the first year's interest upon the bonds. Bonds run for 20 years, installments upon the principal being payable from the eleventh to the twentieth years, inclusive, with the proviso that by a majority vote the bonds may be so drawn as to mature in any num- ber of years less than 20. It may also be provided by a majority vote that payment be made of interest at a rate not exceeding 6 per cent on all due and unpaid interest coupons attached to valid outstanding bonds, whether previousl}' or subsequently issued and sold, from the date of registra- tion of such coupons for payment, or, if previously registered, from the date of the election to pay such interest, until paid. (Sec. 3469.) Bonds can not be sold for less than 95 per cent of tlie face value. (Sec. 3470.) The elate of matuiity of any outstanding issue of bonds may be extended for any peiiod not exceeding 40 years by contract with the holders thereof: or refunding bonds may be issued to bear not ex- ceeding 6 per cent interest and to mature in not exceeding 40 years. (L. 1917. 463.) Assessment.— -Tho, bonds and interest thereon shall be paid by reve- nue derived from an annual assessment upon the real property of the district and all real property of the district shall be and remain liable to be assessed for such payments and for payments due the United States under an}^ contract. (Sec. 3471 as amended, L. 1915, 175.) The assessor must assess all real property of the district at its full cash value less the value of all improvements thereon. He shall also assess all leasehold estates in State lands at the full cash value thereof less all improvements. City and town lots Mdthin irrigation districts whicli are used exclusively for purposes other than agricul- tural are not to be assessed or taxed so long as so used. (Sec. 3472 as amended, L. 1917, 188.) Equidhation and Zg'yy.— The board of directors meets as a board of ec|ua]ization. (Sec. 3473.) Thereafter the board levies an assess- ment sufficient to raise the annual interest and principal and all pay- ments to become due to the United States during the ensuing year Avliich. Avhen collected, go into the bond and United States contract fund. In addition the board, if it deems necessary, may levy an assessment for care and maintenance of the works, salaries, and gen- eral expenses to go into the general fund. The secretary must compute and enter in the assessment books the respective sums to be paid on the property and shall certify to the count}' clerk of the county where the land is located the amount of taxes in each fund levied upon each tract, and the county clerk must enter the amount of each fund in separate columns on the tax list. (Sec. 3475 as amended, L. 1915, 175.) Collectioni of taaces. — All tax lists when delivered to the county and township treasurers shall contain all irrigation district taxes levied on each tract and the general fimd tax shall be collected by the county and township treasurers in the same time and manner as other taxes are collected. The taxes are payable to the county treas- urer in the same manner and at the same time as county taxes are paid (Id.). NEBRASKA STATUTES. 123 Result of faihore to assess. — In case of tlie neglect or refusal of the board of directors to have the assessment and levy made for the pay- ment of bonds and all payments under contract obligations to the United States, then the assessment of the property for county pur- poses after equalization shall become the basis for the district assess- ment and the county board shall cause an assessment roll of the dis- trict to be prepared and make the necessary levy. (Sec. 3475, as amended, L. 1915, 175.) Limits ujyon warrant issiu\ — Districts arc prohibited from issuing warrants in any year exceeding 90 per cent of the levy for said year ^ith the proviso that in case of due and outstanding obligations con- tracted prior to the year in which any levy is made, the district board shall have power to make an additional levy, not to exceed 2 mills on the dollar assessed valuation, to create a special fund for the payment of past obligations. (Sec. 3476.) Delmquent taxes.— A\\ assessments draw interest at 10 per cent from the 1st day of May of the year following that in which assess- ment is made until the assessments are paid or the property sold for the payment thereof. County and township treasurers collect assessments in the same manner as other taxes against real estate are collected and the revenue laws of the State for collection and sale are made applicable to the district taxes. The district may become a purchaser at tax sale at its option. Leaseholds in State lands can be sold for delinquency. (Sec. 3477, as amended, L. 1915. 178; L. 1917, 292.) Refund of taxes. — When any person pays an assessment under pro- test, no refund can be made unless he is able to show by affidavit either that the assessment is levied upon lands outside of the district, that the title to the lands is in the State, that the lands could not be benefited by irrigation either on account of subirrigation or on ac- count of being city or town lots used exclusively for purposes other than agriculture or grazing, or that the lands are not susceptible of irrigation from the district canal. (Sec. 3478, as amended, L. 1917, 189.) Federal puhlic lands. — Where the title is in the United States the lands may still be assessed so far as amenable under the provisions of the act of August 11, 1910. (Sec. 3478, as amended, L. 1917, 189 and 471.) Constrnoction of worlcs. — ^Provision is made for building the works out of the construction fund or by the use of bonds at their par value after advertisement for sale and no bids being received at 95 per cent or upward of their face value. Additional bonds, having a subsequent lien, may be voted in case the original issue prove insufficient to complete the plans; but in lieu of additional bonds the directors may complete the system by the levy of an assessment. (Sec. 3482, as amended, L. 1915; 180.) Running expenses. — Rates of tolls and charges may be employed to defray the organization, operation, management, repair and im- provement expenses in lieu of the assessment plan, or a combined method of tolls and assessments may be employed. If, after the annual assessment, the funds provided for the current year on account of unforeseen contingencies, are found to be insufficient for the proper maintenance and operation of the district, the board is granted the 124 HANDBOOK OF IRKIGATION DISTEICT LAWS. power to borrow additional funds, not to exceed 50 cents per acre for district lands, pledging the credit of the district for the same. The amount so borrowed sliall be included in the estimate for the levy of the ensuing \enr iov the general fund. (Sec. 3482, as amended, L. 1915, 180.) /Special assessments. — A majority of the votes cast at an election called to pass upon special assessments is necessary for their author- ization. The rate of assessment is ascertained b.y deducting 15 per cent for anticipated delinquencies froin the aggregate assessed value of the property in the district as shown on the assessment roll for the current year, and then dividing the sum by the remainder of such aggregate assessed value. This assessment is collected in the same manner as others, the revenue laws being made applicable. (Sec. 3486.) Piiorlt'}/ of ohUgations. — The lien for the bonds of any series is a preferred lien to that of any subsequent series and any contract ob- ligation to the United States has a preference over bonds subse- quently issued. (Sec. 3477 as amended L. 1915, 178.) Dralnacic. — The usual provision prohibiting unauthorized debts ts followed by the proviso that any district shall have the power to and it shall be its duty to provide for the proper drainage of all dis- trict lands which have been subirrigated bv I'eason of the laAvful use of water from the district canal by the owner or lessee of the lands subirrigated, or from any cause not the fault or by the consent of such owner, and for such jDurpose the district shall have authority to levy special assessments or otherwise provide funds necessary prop- erly to .drain such lands. It may conduct the drainage water to other lands upon Avhich the same niay be lawfully used or return it to the stream from vrhich its canal is taken. The powers granted include that of entering into a contract with the United States for drainage of district lands. (Sec. 3487 as amended L. 1915, 181.) Change of houndaries. — The boundaries may be modified sul^ject to the requirement that the change shall not affect the status of the district or impair am^ obligation, lien or charge. (Sec. 3491.) Inchmon of land. — A petition for the inclusion of additional land may be signed bv holders of title representing one-half or more of contiguous body of lands adjacent to the district. (Sec. 349*2.) In case contract has been made with the United States no change shall be made in the boundaries unless the Secretary of the Interior shall consent. (Sec. 3498 as amended by L. 1915, 181.) If an election is held after objections made a majority is sufficient to authorize the annexation. (Sec. 3499.) Exclusion of lands. — The exclusion provisions contain clauses that no land shall be held or taxed by any district which can not from any natural cause be irrigated thereb}^ (Sec. 3506.) If the assent of the bondholders, or that of the Secretary of the Interior where contract with the United States has been made, is not given, the board must dismiss the petition for exclusion. (Sec. 3508 as amended by L. 1915, 182.) Where there is an objection by some other inter- ested partv, and an election results, a majoritv of the votes cast is sufficient. ' (Sec. 3510.) (Umfrin at/on. — Confirmation proceedings of the usual t^'pe are required before the issuance and sale of any bonds (sec. 3515) ; but i NEBRASKA STATUTES, 125 are optional in case of any contract with the United States. (L. 1917. 400.) Utgistratlou of bonds. — After the decree is secured, following the usual provisions of law the board must prepare a written statement of tlie proceedings from the beginning, including the decree, certify the same under oath, and file it with the auditor of public accounts. The latter officer then examines the statements and the bonds, and if satished that the law has been complied with he must record the statement and register the bonds. No bonds shall be issued or valid luiless thev are so registered and indorsed bv the auditor's certihcate showing that they are issued pursuant to law and are in all respects in due form. Bonds are investments. — The board of educational land and school fluids is authorized to invest so much of the perpetual school funds of the State as nuiy be deemed expedient in irrigation district bonds so registered. Eegistration is optional as to bonds theretofore issued or those being issued Avhen the amendatory provision was made. (Sec. 8519, as amended L. 1917, 03.) Water sufply. — Districts may go outside of the State for their Avater supply and ai'e authorized to make the necessary contracts to secure a supply from other States. (Sec. 3520.) If a contract for the water supply provides for the payment of the entire purchase price ^vithin one year from the making of contract, a resolution shall be passed and the purchase price must be provided for at the same time :as the levy for other taxes. (L. 1915, 441.) If the contract provides for payment to be extended for a period more than a year, the board must receive authority at an election at which the majority of votes cast shall be favorable. Thereafter a tax must be levied sufficient to pav the amounts which become due. (L. 1915, 442.) Any irrigation district which shall have purchased a water supply and issued bonds may arrange for the surrender and rescission of the contract upon the surrender and cancelhition of bonds in an amount equal to the bonds issued in payment for such water supply, and if the Avater supply was included in the purchase price of an irrigation system the board may arrange for the surrender and rescission of the contract on the cancellation of bonds equal to the part of the purchase price Avhich was represented bv the value of such contract for water supply. (L. 1915. 442.) (' out met inth United States. — Any irrigation or drainage district is empowered to enter into contract with the United States Avhereby the bonds of the district are guaranteed by the United Stjites or financial credit is extended to the district and for the sale, purcliase, or use of irrigation or drainage systems or other property owned or to be acquired for the use of such district and may borrow money to meet anv contractual obligation to the United States. (L. 1915. 461; L. 1917. 407.) Provision is also made for full cooperation Avith the United States imder the reclamation laws. (L. 1917, 464.) Any irrigation or drainage district may accept the provisions of any act of Congress applicable to such district and obligate itself to comply with such laAvs, and such rules and regulations as may be 126 HANDBOOK OF IRRIGATION DISTRICT LAWS. promulgated by any department of the United States in pursuance of such acts. The district shall then be governed by the laws of the State relating to irrigation and drainage districts except in such things as may be otherwise provided for such districts. This act shall not limit the rights Avhich any district has to purchase a water supply or otherwise to contract. (L. 1915, 461.) Dissolution. — Discontinuance of an irrigation district may be initi- ated by petition to the board of directors by a majority of the assess- ment payers representing a majority of the acreage of irrigable land. If upon an election a majority is for discontinuance, the board may proceed to adjust, settle, and compromise all indebtedness of what- ever form. Same — Sale of property. — The board is authorized to sell the canal franchises and property at not less than a valuation to be fixed by a board of three appraisers, one of which shall be named by the board of directors, one by the county board, and these two appraisers shall appoint a third. The appraisers report in writing to the board of directors, and the property is advertised as ma}^ seem to be for the best interests of the district. If the bids are rejected by the board, the property may be sold after private negotiations and the purchase price may be paid part in cash and part in deferred payments, bear- ing the same interest as the bonded indebtedness of the district, if any. After sale of the property the board shall make a settlement, payment, and redemption, if possible, of all outstanding bonded ancl other indebtedness of the district, but shall in no case pay more than the market value ^ of such outstanding bonds with interest up to the time of pajnnent, and, in cases where bonds not yet due can not be redeemed by reason of the refusal of the owners to surrender them before due, the board may invest the surplus money, after paying all debts that can be paid, in State, count}', or other safe bonds bearing the same or greater rate of interest, if possible, than the district bonds outstanding. Same — Continued assessment. — If the amount realized from the sale of the district propert}-, together with other monej^ of the dis- trict, is insufficient for the i^ayment of all the debts, assessments shall continue to be made against the lands included in the district in the manner provided by law for assessments to pa}^ bonds or other debts of irrigation districts until enough is raised fully to pay all obliga- tions. In cases where bonds and other obligations of irrigation dis- tricts shall be issued after the passage of the act, they shall be sub- ject to redemption by the board of directors of such irrigation dis- trict as soon as its property and franchise shall be sold after such district has elected to discontinue. After disposition of the property shall have been made and all obligations paid, the report of the board shall be filed in the office of the State board of irrigation, and if any person or corporation have i]ny claim against such district not settled or disposed of and shall neglect to bring suit within five years from the time of the filing of such report, such claim shall be forever barred. (Sec. 3521.) No express provision is made in the discontinuance statute for the assent of the United States where Federal contract has been made. 'Criticism ress and the rules and regulations of the SfH,-retarv and the pi-ovisions of the district contract. (L. 1917, 09.) Judicial notice. — Provision is made that judicial notice be taken of the existence of the district and ])rima facie evidence of its res are instituted within a year. (Stat., 1915, sec. 29()?). ) Exemption from taxation. — Property acquired In the ii-rigation district is exempted from all taxation. (L. 1917, 70.) iJetevminat'wn of amount of assessments. — The board must de- termine annually the amount of money required to meet the oblifja- tions, maintenance, and operating and current expenses, and certify the same to the county commissioners of the county in which the dis- trict office is located. It must also certify the amounts, if an}^, which will become due to the United States during the ensuing year. Provi- sion is made for the omission of assessments where lands are in a Federal reclamation project and the district has contracted Avith the United States as regards any unit not upon a repayment basis and project lands for which rental charges for such year are not required, and as regards lands exempted from repayment on account of seepage and other conditions where the district is exempted from payment to the United States. (L. 1917, 74.) Public lands of the United States are taxed subject to the act of August 11, 1916. (L. 1917, 73.) Assessments. — The county assessor is required to enter upon his tax roll the owners and lands subject to taxation under the act and to deliver certified list to the county commissioners. After receiving notice from the county commissioners of the levies to be made, the assessor must extend the same upon his tax roll to be collected like other taxes. No land shall be taxed which, from any natural cause, can not be irrigated by the district system or is incapable of cultiva- tion. (Stat. 1915, sec. 2968.) The county commissioners immediately upon receiving the certified list of the lands in the district subject to taxation and upon the re- ceipt of the certificate from the directors certifying the total amount of money to be raised, must fix the rate per acre of levy necessary to provide the amount of money requii-ed to pay the interest on the bonds, and to provide the money recjuired lo be raised by levy for other purposes. They must also certify the respective levies to the county commissioners of each county in which any portion of the dis- trict lies. The rate of levy necessary to raise the required amount of money must be increased 15 per cent to cover deliniiuencies. The county commissioners make such levy at the time of making the levy for county purposes and deliver a notice thereof to the county as- sessor; and in case of contract with the United States, lev}" shall be l.'M HANDBOOK OF IRRIGATIOlSr DISTRICT LAWS. made in the amounts and on the tracts as certified by the board of directors and as confirmed judicially. All L'lxes levied under the act are special taxes. (L. 1917, 75.) Drainage assessments. — If a district contract with the United States for the construction of drainage works, the board of directors must fix and determine, subject to judicial confirmation, the rate or percentage of the benefits from the j^ropsed works for all real prop- erty within the district to be affected thereby. The board must also assess the damages inflicted upon any real property, such amount being deducted from the assessments payable by each owner of lands damaged until compensation sliall have been fully made. If the dam- age exceed the benefits as regards anv property, a cash award must be made. The rate of benefits shall be subsequently used as the basis for annual assessment, but may be changed from time to time by the board as new or changing conditions may in their judgment require, subject to judicial confirmation. An irrigation district may assess realty within its boundaries owned by all classes of persons and corporations for drainage costs to the same extent as drainage districts are empowered to do. (L. 1917, 73.) Collections and dishuo^sements. — The county treasurer of the county in which is located the office of any district is ex officio district treas- urer and the county treasurer of each county is required to collect all irrigation district taxes for district lands in such county in the same manner and at the same time as he is required to collect the taxes for county purposes. The funds arising from assessment and levy and accruing to the bond and United States contract fund, must be devoted to the obligations of the district and paid from said fund " in the order of the prioritv of the creation of the obligation." (L. 1917,76.) Generally speaking, the revenue laws of the State for the assess- ment levy and collection of taxes on real estate for county purposes, including the enforcement of penalties and forfeitures for delin- quencies, apply to irrigation districts. (Stat. 1915, sec. 2971.) " Geneixil ex'penses. — To defray miscellaneous expenses, the board may fix tolls and charges for use of canal and water or it ma}' levy assessments therefor, or both. (L. 1917, 77.) Eminent domain. — The board may construct works across any watercourse, highway, etc., to which end it may exercise the right of eminent domain. Right of way for such purpose is granted over any State lands. (Stat. 1915, sec' 2975.) Change of houndaries. — Petition for annexation can only be made on the part of all owners of the lands proposed to be included (Stat. 1915, sec. 2981), the proceedings being of the usual type. The change of boundaries must receive the assent of the Secretary of the Interior, if contract has been made with the United States. (L. 1915, 150.) Exclusion of lands is provided for with the usual clause prohibit- ing the impairment or discharge of any contract. (Stat. 1915, sec. 2990.) The authority of the board as regards exclusion is conditional upon there being no outstanding bonds of the district. When con- tract has been made with the United States the assent of the Secre- tary of the Interior is required. (L. 1915, 150.) Dissolution. — A majority of the resident freeholders representing a majority of the number of acres of irrigable land may petition the board of directors for the dissolution of the district. The petition XOP.TH DAKOTA STATUTES. 135 must state that all bills and claims have been fully settled and the board must be satisfied that such is the case. (Stat. 1915, sec. 2997.) A majority of the votes cast is sufficient for dissolution, but if con- tract has been made with the United States the ^v^itten assent of the Secretary of the Interior is required. (L. 1915, 151.) Conf.rmntlon. — The brino;in^ of confirnuition ])roceedings is ob- ligatory u])on the board of directors. The provisions extend not only to the authorization of bonds and of contract with the United States, but also to the ascertainment of the rate or percentage of drainage benefits and of the award for damages iuflicted l)y drainage works where contract has Ix^en made with the United States. The assess- ment and award in such cases are covered by decree. Moreover, in- clusion and exclusion proceedings in the discretion of the board inay be confirmed in the same manner, (L. 1917, 80.) The confirmation proceedings in other respects are of the u^ual type. Districts organized prior to the passage of the act of 1917 are con- firmed and are rendered subject to the provisions of the act in the future so far as applicable, but vested rights are specifically pro- tected. fL. 1917, 83.) North Dakota.^ North Dakota had no irrigation district law until 1917. when an act was passed, being chapter 115, approved March 8, 1917. (L. 1917. 125.) Petition for organization. — In North Dakota the petition for or- ganization addressed to the board of county commissioners must be signed by a majority of the electors of the district representing '• a majority of the whole number of acres owned or held by electors of the proposed district." Electors include residents of the State hold- ing not less than 10 acres within the district and entrymen upon public lands therein or holders of leases to the extent of 40 acres of State land with not less than five years still to run. The purposes of organization as set forth do not expressly include the formation of districts, where provision for irrigation has already been made, in order to provide a vehicle for operation and maintenance. A major- ity of the votes cast determines the organization election. (Sees. 1 and 2.) La/nds exerrifted. — It is provided where ditches have been con- structed prior to the act sufficient to water the lands under the dis- trict, that such ditches and the franchises and the lands thereunder shall be exempt from the operation of the law, except such district shall be formed to make purchase of such ditches and franchises. (Sec. 1.) Refort of State engineer. — Four weeks before the date of hearing before the county board the petition, maps, etc., must be filed with the State engineer, whose duty it is to examine the same, and if necessary, to examine the district and its proposed works, and report the matter to the county board. Boundaries and suhdivisio?is. — The count}^ commissioners define the boundaries, making no changes to exempt irrigable lands, but ^ See p. 87 for the purpose and scope of this discussion. 136 HANDBOOK OF IRRIGATION DISTRICT LAWS. shall include no land in the district which, in the judgment of the board, will not be benefited. The district is dividecl into three, five, or seven divisions, as may be deemed best, with a director from each. (Sec. 2.) Release of Icmds when no longer heneflted. — Water rights are ap- purtenant to the land, but if any tract to which water right has attached shall become subirrigated so that water is no longer bene- ficial, the owner or entryman may apply to the board to relieve such land from assessment, releasing his water right until drainage has been supplied and water may beneficially be used. Application may be made for transfer of such water right to other lands within the district or for the inclusion of the land to be irrigated and the ex- clusion of the subirrigated area, (Sec. 9.) Plans submitted to State engineer.— 'W\\q\\ the plan for irrigation has been formulated, the board is required to submit the same to the State engineer, who shall report to the board such matters as he may desire. (Sec, 13.) Bonds. — Bonds are payable over the period from the expiration of the eleventh year to the expiration of the twentieth year, but the dis- trict by a majority vote may provide for a lesser period, and may similarly provide for the payment of interest not exceeding 6 per cent on due and unpaid interest coupons attached to outstanding bonds. (Sec. 13.) Bonds may be sold for not less than 95 per cent of the face value thereof. (Sec. 14.) ^ Assessment. — Separate district assessor and treasurer are provided for. (Sec. 4,) The assessor is required to determine the benefits which will accrue to each tract on account of the construction or acquisition of the irrigation works. (Sec. 16.) The board of direc- tors acts as a board of equalization (sec, 17), and the apportion- ment thus reached " shall be and remain the basis for fixing the annual assessments levied against such tracts." The list of appor- tionment, with the amount and rate per acre, is prepared by the assessor, or a map showing the rate may be prepared. The whole amount of the assessment of benefits must equal the amount of the bonds or other obligations voted. (Sec. 16,) Levy and collection. — The levy is made by the board and the county auditor enters the amount of each fund in separate columns on the tax list of his county. If the board neglect to cause levy and assessment to be, made the assessment for the preceding year must be adopted. Tax lists when delivered to the county treasurer contain all taxes in each fund levied on each tract by the board. The county treasurer is required to collect assessments in the same man- ner as other taxes ag:ainst real estate are collected, the revenue laws for collection and sale of land for taxes being made applicable. (Sec, 21,) Taxes are paid by the county treasurer to the treasurer of the district. (Sec, 19.) The board has the power to make an additional levy not to exceed $1 an acre to create a special fund for the payment of overdue obligations of prior years for operation, maintenance, and current expense, (Sec, 21,) Warrants.- — Warrants in excess of 90 per cent of the levy for the year are prohibited, (Sec, 20.) Prioyity of obligations. — The lien for payments due to the United States where bonds have not been deposited are a preferred lien to NORTH DAKOTA STATUTES. 137 that of any other issue of bonds subsequent to the date of contract. Funds arising from assessment and levy are devoted to the obliga- tions of the district ]iayable from said funds in tlie order of the priorit}^ of the creation of the obligation. (Sec. 21.) Refund vjhen lands not h( ncfted. — Payments made under protest are refundable where the lands assessed could not for the time being be benefited l)v irrigation oti nccount of subirrigation. (Sec. 22.) Coniirinatlun. — The confirmation proceedings in this State are obligatory before the issuance and sale of bonds. (Sec. 59.) Registration. — After the court shall have determined the validity of the organization the directors are required to prepaie a state- ment showing all j)roceedings from the petition for organization of the district to decree of court, present the same with the bonds cer- tified by them under oath to the State engineer. The latter official shall examine the statement and the bonds, and if satisfied that the same conform with the law and are in due form, he shall rec-ord the statement and register the bonds in his office. No bonds shall be issued or valid unless registered and endorsed by the State engineer showing compliance with the law. The provision is optional as to bonds heretofore issued or being issued when the act went into effect. (Sec. 63.) Special assessments. — Provision is made for special assessments after a majority vote of the district. 15 per cent being added to the rate of assessment for anticipated delinquencies. (Sec. 30.) Drainage. — The usual prohibition is made against unauthorized debts Avith the added proviso that the district " shall have the power to and it shall be its duty to provide for the proper drainage of any and all lands embraced within its limits which are or have been subirrigated by reason of the lawful use of water from its canal by the owner or lessee of the lands subirrigated or from any cause not the fault, or by the consent of such owner or lessee." For such drainage purposes the power is given the district to levy special assessments or otherwise provide funds necessary properly to drain such lands. The pow'cr to contract with the United States for drainage purposes is also expressly given. (Sec. 31.) Contract and Gooferation with tlie United- States. — Districts are expressl}^ authorized to contract with the United States for irrigation or drainage purposes wdiereby the bonds of the district would be guaranteed by the United States or financial credit extended by the Federal Government to the district (N. B. — Federal bills for the foregoing purpose failed of enactment) , and also for the sale, pur- chase, or use of irrigation or drainage works or other property owned or to be acquired for the use of the district. (Sec. OS.) The usual provisions relative to cooperation with the United States expressly extend to drainage. (Sec. 69.) Liahility for negl/gence. — Irrigation districts are liable in dam- ages for negligence or failure in delivering water to the users from the district canal in like manner as private persons and corporations. A prerequisite, however, is that the party aggrieved shall within 30 days after such failure serve notice in writing u]ion the chairman of the board, setting forth the acts constituting the negligence or omission and stating that he expects to hold the district liable; and provided further that action shall be brought within a year from the accrual of the cause. (Sec. 75.) 138 HANDBOOK OF lEKIGATIOlSr DISTRICT LAWS. Changes of houndaries. — The procedure for including additional lands is in a general way similar to that of most of the other States. The exclusion proceedings provide that unless the holders of out- standing bonds or the Secretary of the Interior, if contract with the United States shall have been made, assent to the change of bounda- ries, the board shall deny and dismiss any petition for the exclusion of land. (Sec. 52.) Dissolution. — Dissolution of districts can be initiated only by a majority of the assessment payers representing a majority of the irri- gable acreage. Petition is presented to the board of directors. If upon the winding up of affairs the money realized from the sale is insufficient for the payment of all debts of the district, assessments shall continue to be made under the law relating to bonded and other indebtedness " until a sufficient amount is raised to fully pay all obli- gations of such district." Where contract shall have been made with the United States the board of directors is without power to take any action looking toward dissolution of the district unless written consent of the Secretary of the Interior shall have been filed with the board and a certified copy filed in each county wherein district lands are situate. (Sec. 70.) Oklahoma.^ Oklahoma passed an irrigation district law first in 1915, which is to be found as chapter 226, Session Laws of 1915, 485 to 538. Organization. — Petition for organization is addressed to the county board, to be signed by a majority of the electors of the district repre- senting a majority of the whole number of acres belonging to the electors of the district. Electors must be residents of the State, owning not less than 10 acres or holding leaseholds in not less than 40 acres of State land within said district for not less than five years from the date of any given exercise of the elective rights. Corpora- tions, however, may act through duly authorized agents. Organiza- tion is on the part of those desiring to provide for irrigation. Ditches constructed before the passage of the act of sufficient capacity to water the lands thereunder for which the water was appropriated, are expressly exempted from the law unless the district shall be formed to purchase such ditches and franchises, with the provision that the law shall not be construed in any way to affect the rights of such prior ditch owners. (Sees. 1 and 2.) After due investigation and the formulation of plans copies of the petition and all maps are required to be filed with the State Board of Irrigation, it being the duty of the secretary of the board to examine the same, and, if advisable, the proposed district and works. He must also prepare a report to the county board at the hearing upon the petition. The board may thereupon amend the plan of irriga- tion as deemed best. (Sec. 2.) A majority only of the votes cast on the organization election is necessar\^ for organization. (Sec. 3.) Distrihution of vafer. — All waters distributed for irrigation pur- poses are apportioned ratably to each landowner upon the ratio ^ S'ee p. 87 for tbe purpose and scope of this discussion. OKLAHOMA STATUTES. 139 which the last assessment of such owner for district purposes within said district bears to the total sum assessed upon the district. (Sec. 9.) Water acquired under contract with the United States, however, is apportioned in accordance with the acts of Congress, rules and regulations of the Secretary of the Interior, and the provisions of contract with the United States.' (Sec. 9.) Puhliclfy. — Exceptional recjuiremcnts for publicity as to the ac- tivities of the board are laid down, all meetings being required to be advertised, and records of the board must be published at the close of each regular or special meeting. (Sec. 10.) Construction work. — The plans for construction work must be submitted in detail to the State board of irrigation, highways, and drainage prior to the holding of an election upon a bond issue. The board is required to report upon the same, whereupon the district directors determine the amount of money to be raised and the ques- tion whether or not bonds shall be issued to an amount which must not exceed the actual estimated cost of the ditches, the aggregate jDurchase price of the property, together with one year's interest upon the bonds. Upon the election a mere majority of those voting is sufficient. The board is required at least annually to report to the secretary of the State board of irrigation the condition of the work and the success of the plans and whether or not the available funds will suffice for completion. The secretary of the State board shall make such recommendations to the directors as he may deem advisable. (Sec. 13.) Bonds. — The bonds run for 20 years, installment's upon the prin- cipal beginning at the expiration of the eleventh year, but by a ma- jority vote bonds may be authorized maturing in less than 20 years and a majority vote may also authorize the payment of interest not to exceed 6 per cent on any due and unpaid interest coupons attached to valid outstanding bonds. (Sec. 13.) Such bonds and the interest shall be paid by revenue derived from an annual assessment on the real property of the district, which " shall be and remain liable to be assessed for such payments as herein provided, and all payments due or to become due to the United States." (Sec. 15.) ■ Assessor and treasurer. — The district has its corporate district as- sessor and treasurer. (Sec. b.) The assessor must assess all real property of the district at its full cash value less the value of all im- provements, also leasehold estates in all leased State lands less the im- provement upon the same, including all city and town property in the district. (Sec. 16.) The assessment book must be delivered to the secretary of the board of directors. (Sec. 17.) The district taxes are collected by the county and township treas- urers as public taxes are collected. Such treasurers pay the same over to the treasurer of the irrigation district. (Sec. 19.) Equalization and levy. — After receipt of the assessment book from the district assessor and following equalization, the board must levy an assessment sufficient to raise principal and interest on the bonds, payments due to the United States, and, if necessary, for the care and maintenance of the irrigation works. The amount of taxes in each fund levied upon each tract is certified to the county clerk of the 140 HANDBOOK OF IREIGATION DISTRICT LAWS. county in which the hind lies and the clerk enters the same on the tax lists of the county. If the board neglect to make the assessmeixt for district purposes, the assessment made for county purposes as adjusted by the. county equalization board becomes the basis for the district taxes and the county board is required to cause an- assessment roll of the district to be prepared. (Sees. 17 and 19.) Wa/'junts. — No district may issue warrants in excess of 90 per cent of the levy for the year, but if there are obligations against the dis- trict previously contracted, the board may make an additional levy not to exceed 2 mills on the dollar of the assessed valuation to create a special fund for the payment of past due obligations. (Sec. 20.) Tax sales. — Provision is made for the sale of leasehold estates upon State lands for taxes in the same manner as land. (Sec. 21.) Refund tchere laiulfi not hene-fited. — Provision is made for the directors to pass upon the disposal of moneys paid under protest to the county treasurer and a refund may be ordered where the lands could not be benefited by irrigation either on account of subirrigation or nonirrigability. (Sec. 22.) Construction and other expenses. — Construction work is paid for out of the construction fund or the bonds of the district may be used at their par value, after they have been advertised for sale and no bids received therefor at 95 per cent or upward of their face value. If the construction fund i-esulting from the sale of bonds be insuffi- cient, annual assessment and levy may be resorted to. For expenses of organization, operation, maintenance, and improvement the board may either fix tolls and charges for the use of water or may impose anniuil assessments or both. P(yU)^r to 'borrow racmey. — Additional funds may be borrowed for unforeseen operation and maintenance expenses not to exceed 50 cents per acre upon the land. (Sec. 26.) Excess liifbllities. — The officers of the district are prohibited from incurring any liability in excess of the express provisions of the law, any such liability being declared void. Drain-age. — It is provided in the clause prohibiting excess liability, however, that the district is empowered and " it shall be its duty to provide for the proper drainage of any and all lands embraced within its limits which are or have been subirrigated by reason of the law^ful use of water from its canal by the owner or lessee of the lands subirrigated or from any cause not the fault or by the consent of such owner or lessee." For drainage the district has the same poAver of assessment and levy or otherwise for providing the funds necessary for drainage together with the right to contract therefor with the United States. (Sec. 27.) Special assessments. — The board may call an election upon a spe- cial assessment for the raising of money for the purposes of the act. The rate of assessment is reached by deducting 15 per cent from the aggregate assessed value of the district property for anticipated de- linquencies. (Sec. 30.) Inclusion and exchisiov. — Where lands are to be included in the district petition can be made by owners repi'esenting one-half or more of the land to be included. (Sec. 35.) OKLAHOMA STATUTES. 141 Owners desirino- to be excluded may sign a petition therefor ad- dressed to the district hoard but the assent of holders of outstanding bonds or the Secretary of the Interior, if contract be made with the United States, nuist be filed, otherwise the board is required to dis- miss the petition for exclusion, (Sec. 51.) If such assent be filed, a majority vote upon the election will suffice. (Sec. 53.) Changes of boundaries nnist not iuipair any contract, ol^ligation, lien, or charge for which any land to be excluded would otherwise have been liable (sec. 34), and where contract has been made with the United States the assent of the secretary is required (sec. 41). If any tract shall become subirrigated so that water no longer is of benefit for irrigation purposes, the owner may apply to the dis- trict board to exclude such lands from the district, releasing all claim for a water right. He may apply for a permit to transfer the water right to any other land upon which the same may be profitably applied and to have such new tract included within the district. (Sec. 9.) Confirmation. — The confirmation proceedings in Oklahoma are obligatory before the issuance of any bonds. The act of March 23, 1917 (chs. 179, 337) has made special pro- vision for confirmation proceedings. The board of directors in their discretion before making any contract with the United States or with others or the levying of any assessment or the taking of any particular steps or action must commence a special proceeding in the district court whereby the proceedings of the board thereunto and the validity of any of the terms of any contract shall be judicially examined, approved, and confirmed. The procedure follows as near as may be the procedure for the confirmation of an issue of bonds. Registration of hounds. — After decree in confirmation the board is required to prepare a written statement reciting the entire proceed- ings of the district including confirmation decree and to present the same verified by oath of the board with the bonds to the auditor of public accounts. The auditor shall then examine the statement and the bonds and if satisfied shall record the statement and register the bonds in his office. No bonds in Oklahoma are valid unless so registered. The board of educational lands may invest such portion of the perpetual school funds of the State as may in the judgment of the board be deemed expedient in irrigation bonds so registered. The registration provisions, however, are optional as to bonds pre- viouslv issued or in process of being issued when the act was passed. (Sec. 62.) _ Refunding honds. — The board may issue refunding bonds for no greater principal amount and to bear no greater rate of interest than the previous issue. Notice, however, must be given and hearing held prior to action. (Sees. 65 to 68.) Liability for rtegligence. — Districts are liable in damage for negligence in delivering Avater from their canals in the same manner as persons and private corporations. (Sec. 69.) Dissolutiwv. — The provisions governing dissolution are practically identical with those of Nebraska, heretofore outlined. (Sec. 64.) 142 haistdbook of leeigation district laws. Oregon,^ The Oregon legislature in 1917 passed an irrigation district law (Gen. L, 1917, 743) as a complete substitute for earlier legislation. Petition for organization and ohjects. — Irrigation districts are in- itiated by petition to the county court, signed by 50 or a majority of the owners of land within the propased district. (Sec. 1.) The objects of organization include not only the construction of new works, but also the improvement or the operation merely of existing systems. (Sec. 1.) It is the duty of the county court to fix the boundaries of the district. The court is not expressly required, how- ever, to ascertain or make findings upon the public necessity of the organization or the proposed works nor upon the benefit to the lands to be included and taxed. (Sec. 2.) Qualifications of electors. — Male and female persons over 21, whether residents of the State or not, owning 1 acre or more within the district according to the last assessment roll, or having contract to purchase State or Carey Act lands, and entrymen on the public do- main of the United States, are landowners under the act, having the right to vote or hold office. Corporations and fiduciaries can also exercise the franchise. (Sec. 29.) Officers. — The officers of the district are a board of directors, con- sisting of three members, a president selected from their member- ship, and a secretary appointed by them. The county treasurer of the countv shall be ex officio treasurer of the district. Construction flans. — Before work is undertaken the construction plans must be submitted to -the State engineer with a report upon the feasibility and cost of the work. The State engineer must ap- prove or disapprove the plans Avithin 90 days, having authority to make such field investigations as may be necessary. (Sec. 15.) The construction work must be supervised by an irrigation engi- neer, subject to the approval when completed of the State engi- neer. Construction under contract with the United States is not thus supervised. (Sec. 16.) Districts may join in securing irrigation works, the cost to be apportioned according to acreage. (Sec. 32. See supra p. 81.) Drainage tcork. — The act authorizes drainage work by irrigation districts organized either before or after the passage of the new law, and whether for the benefit of lands actually requiring drainage or as an advance protection. Such drainage work may be done simul- taneously with the construction of the irrigation system or other- Avise. It is declared that the powers of the district as regards drainage are equal to its powers with respect to irrigation. (Sec. 34.) Contract for drainage as well as for irrigation may be made with the United States. (Sec. 18.) Bonds. — The bonds of the district (for irrigation or drainage) may be issued to mature serially in not less than 5 years nor more than 40 years after the date of issue, as the board may determine. If authorized by the electors, the first four years' interest or less may be included in the bonded indebtedness. Interest shall not exceed 6 per cent per annum. (Sec. 20.) The sale of bonds must be ^ See p. 87 for the pui-pose and scope of tbis discussion. See also Addenda, p. 169, for 1919 amendments. OREGON STATUTES. 143 advertised, and bonds may not be sold for less than 90 per cent of their face value. Delinquent fax sales. — The district may purchase at delinciuent tax sales in the absence of other bidders taking title to the land, and disposing of the same as any other purchaser. The district is ex- pressly prohibited, however, from bidding more than the total of all taxes against the land Avith interest and penalties, and is re- quired to pay cash for such taxes. It is authorized to include such payments in the operating expenses to be assessed as maintenance charges. (Sec. 22.) Assessments. — A computation of the moneys necessary to Ix' raised by the district is made by the board. Each acre of irrigable laud is assessed the same as every other acre, provision being made that the amount to be paid any landowner for easements or other property'' required by the district may be deducted from his i)ro])()rti()nate part of the cost of the reclamation. It is provided that upon lands hav- ing water rights appurtenant thereto, assessments other than those for. operation and maintenance and drainage shall be in the same proportion to full assessment as the additional water right to be sup- plied bears to a full water right, and, for the purposes excepted, such lands having a jjartial water right shall be assessed as other lands. Where the contract with the United States has been made the amounts payable shall be fixed in compliance with the Federal reclamation laws, public notices and orders thereunder, and with the contracts between the district and tlie United States, lands having partial rights being assessed in proportion to benefit. (Sec. 24:. For State land taxation see p. — .) Equalization. — The work of equalization devolves upon the board of directors (sec. 25), after the completion of which certification is made to the county treasurer, who enters the apportionment upon the county assessment roll as the irrigation district tax in the same manner that other municipal assessments are entered. The method of collection and accounting is the same as for other municipal taxes. State lands, including segregations under the Carey Act, are subject to taxation by the district; also public lands of the United States to the extent authorized by the act of Congress of August 11, 1916. (Sec. 27.) Should the board neglect or refuse to perform its duties in assessment and levy, the assessment is made, equalized, and levied by the county court. (Sec. 27.) Eminent domain. — The eminent domain provisions include the right to condemn property already devoted to public use, whether for irrigation or otherwise, which is less necessary than the use proposed by the district. Eights of way over State lands are dedi- cated. The use of water for irrigation by districts together with rights of way and other property is expressly declared to be a pub- lic use more necessary and beneficial than any other use. public or private, to which the water, lands, or other property have been or may be appropriated within the district. (Sec. 31.) Confirmation. — Any district assessment payer or other interested person may bring confirmation proceedings in case the board shall not have acted within 30 days. The scope of the confirmation ex- tends not only to the organization and authorization of bonds or of contract with the United States, but also to orders changing the 144 HANDBOOK OF IRRIGATION DISTRICT LAWS. boundaries, declaring the result of sluj election, or lev3dng an}^ gen- eral or special assessment. (Sec. 41.) Bonds as iwvestments. — The board of any irrigation district may apply to a commission consisting of the attorney general, the State engineer, and tlie superintendent of banks for the purpose of ob- taining certificate upon bonds of the district. If approved by the commission certification is made by the secretary of state that such bonds are legal investments for trust funds and for the funds of all insurance companies, commercial and savings banks, trust com- panies, and bonding companies. Whenever any money or funds may by law be invested in bonds of cities, counties, school districts, or other mimicipalities, such moneys may be invested in irrigation district bonds when certified. Such bonds may also be used for security for the deposit of public money in the banks of the State or for the performance of any act for which the bonds of other municipalities may lawfully be used. (Sees. 44 to 48.) Merger. — Provisions for merger of Oregon irrigation districts are referred to in the general discussion. (P. 83.) Sal's of water or electric fovier. — Provision is made for the sale of water for lands outside the district and the furnishing of electric power by the district for use within or without the district bound- aries upon proper compen.sation. (Sec. 33.) Inclusion and exclusion.. — Provisions are made for the inclusion and exclusion of land, the latter being very carefully safeguarded against loss to the creditors of the district, their consent being neces- sary to the freeing of the lands to be excluded from past obliga- tions. (Sec. 37, pars, e and /.) Dissolution. — The irrigation district may be dissolved as the re- sult of a vote of 60 per cent of those voting after a petition to the board signed by a majority of the landowners of the district and advertisement for the election. The board must find that all claims and obligations against the district have been fullv paid. (Sees. 39 and 40.) South Dakota.^ The South Dakota irrigation district law will be found in the Session Laws of 1917, chapter 282, beginning at page 542. This enactment has a common origin and is practically identical with the North Dakota statute of the same year, which has already been outlined. (See pp. 135-138.) There are two features, however, in which the South Dakota law diverges from that of North Dakota, and these are: First, the requirement that in addition to the organization elec- tion being carried by a majority of the votes cast, such votes must " also represent a majority of the acreage within the proposed dis- trict owned or held by the electors thereof " (sec. 3) ; and Second, a provision that " all common school and endowment lands located Avithin any irrigation district and susceptible of irrigation, shall be offered for sale according to law within five years after the time water is available for irrigation, and after sale shall be in- cluded in the district as in this act provided for including additional lands." (Sec. 36.) ^ See p. 87 for the purpose and scope of this discussion. SOUTH DAKOTA STATUTES. 145 Bonds. — Mature in 20 years and bear interest at a rate not exceed- ing 6 per cent per anninn. (L. 1917, 555.) Texas.^ This State departs more widely than any other State from the usual irrigation district statute. Two unique features are that in Texas all property in the district, personal as well as real, is subject to assessment for irrigation purposes; and that the name of the cor- poration must indicate the name of the county and the number of the district as " County Water Improvement District No. — ." (Sec. 10.) Another consists of the method of securing operation and maintenance charges. The law will be found in the General Laws of Texas, 1917, pages 172 to 210, being chapter 87, approved March 19, 1917. This act repealed the former, and comparatively regular, irrigation district statutes. Purposes. — The district is authorized to construct irrigation im- provements, purchase existing works, or cooperate with the United States for the construction of irrigation works, including drainage works necessarj' to maintain the irrigability of the land. (Sec. 1.) Petitimi for organiZ'ation. — Petition for organization is presented to the county commissioners' court on the part of a majority in num- ber of the holders of title or evidence of title to lands in the district, who shall also represent a majority in value, as indicated by the State and county assessment rolls, of all of said lands. (Sec. 1.) The district may include towns and villages, but no land shall be in- cluded in more than one water improvement district. Hearing on petition. — At the hearing before the county commis- sioners' court, following notice as prescribed by statute, interested persons may support or oppose the district. Ap2)eal.—X\\ appeal from the order lies to the district court where, if taken, the cause is tried de novo^ upon the same record and plead- ings. (Sec. 4.) Elections and electors. — Electors are defined as resident property taxpayers who are qualified voters of said proposed district. (Sec. 7.) Before the district is formed, however, it becomes the duty of the tax collector of the county to make out a certified list of the property taxpayers of the district and to furnish the same to the presiding judge of the election. The same duty after the district is formed de- volves annually upon the tax collector of the district. (Sec. 8.) All elections under the act are governed by the State election laws except as otherwise provided. None but resident property taxpayers who are qualified voters of the district shall be entitled to vote at any election called by the directors. (Sees. 54 and 73.) Voters are required to qualify under oath. (Sec. 55.) Organization election. — The organization election requires a ma- jority of two-thirds of those voting. Three of the five directors con- stitute a quorum for ordinary purposes, but for the letting of con- tracts and drawing of warrants the concurrence of four directors is 1 See p. 87 for the purpose and scope of this discussion. 160047—20 10 146 HANDBOOK OF IRRIGATIOISr DISTRICT LAWS. necessary. (Sec. 13.) The offices of assessor and collector are com- bined in the same person, who is appointed by the directors. ( Sec. 15. ) Boundaries to he marl'ed. — The directors must have the boundaries of the district marked by suitable monuments. (Sec. 16.) Exclusion of lands. — The owners of lands within the district may, within 30 days after organization of the first board, petition for ex- clusion from the district. (Sec. 17.) Notice of hearing is given (sec. 18) and the board, if it is determined that any land is not susceptible of irrigation from the proposed system, shall exclude such land, the owners thereby waiving all rights to be served with water. (Sec. 19.) Inclusion of lands. — Similarly owners of lands contiguous to the district may petition the board to be included. Favorable action may be taken provided such land may be irrigated without prejudice to the rights of any of the original territory which is " to be first fur- nished with an adequate supply of water." The lands admitted, how- ever, become subject to their proportionate share of the bonded in- debtedness and other expenditures by the district. No time limit is placed upon the privilege of making this petition. If contract has been made with the United States no lands shall be admitted without the written consent of the Secretary of the Interior. (Sec. 20.) Powers of directors. — The powers of the board are similar to those in other States and include the making of contract with the United States for construction, operation, and maintenance of irrigation and drainage Avorks, as well as the usual clauses for cooperation with the United States. (Sec. 21.) The customary penal clauses against misconduct by the directors are broadened to include the engineer of the district and all em- ployees. (Sec. 22.) Assessments. — Immediately upon the qualification of the assessor and collector he shall proceed to make " an assessment of all the tax- able property, both real, personal, and mixed, in his said district; and such assessment shall be made annually thereafter." An affidavit by the owner or his agent shall accompany the assessment and the full value of the propert}^ shall be stated. Assessor. — The assessor must also make lists of all property not rendered for taxation, and all laws and penal statutes providing for the rendition of property for State and county taxes are made appli- cable to irrigation districts. (Sec. 25.) Equalization of assessinents. — The directors of the district appoint three commissioners who constitute a board of equalization (sec. 26) which meets annually to examine the assessment lists (sec. 38). They must see that all property has been rendered at its full value, having power to correct assessments, and must add any property omitted. (Sec. 28. )_ Collection of taxes. — After equalization the assessment books are returned to the assessor and collector, who makes up the assessment (sec. 34), collects all taxes, and paj^s the same over to the official depository selected by the district (sec. 35). The assessor and collector is charged by the directors with the total assessment shown by the rolls, proper credit being given for all moneys paid over to the depository. (Sec. 36.) Delinquent tax foreclosure. — After publication, lands delinquent are required to be foreclosed and sold through appropriate suit. (Sees. 41 to 44.) Upon request of the owner such land may be sold TEXAS STATUTES. 147 in subdivisions less than the whole, only such portion being sold as luiiy be necessary to satisfy the judgment. (Sec. 45.) Delinquent pei'sonal property taxes bear interest and penalties, the collecto]' being required to seize and levy upon so much personal property as shall be sufficient for the recovery of the taxes, penalty, and interest. If no personal property is found the delinquent tax list is made up charging the owner with the amount assessed against him. (Sec. 48.) The right to redeem delinquent lands may be exercised by the tax- payer " at au}^ time before his lands are sold imder the provisions of this act by paying to the collector the taxes due thereon " with the interest and penalties. (Sec. 49.) Plans of fToposed works. — Following the establishment of the dis- trict, the qualificati(m of the board of directors and the return of the list of assessments, the directors may appoint an engineer to prepare a survey of the lands and plans and estimates for the proposed works in detail, unless contract is to be made with the United States. (Sees. 50 and 51.) Bands (vnd United States contracts. — Thereafter the board may order an election for the consideration of the bonding of the district or the making of contract with the United States. (Sec. 52.) The bond or Federal contract require.s a two-thirds majority of those voting. (Sec. 50.) Provision is made that where the directors find it necessary to modify the district or its improvements or to purchase or construct further improvements and to issue additional bonds or make supplemental contract with the United States, they may do so following a two-thirds vote by the electors. (Sec. 57.) The bonds mature not later than 40 years from date of issue and bear interest at not exceeding 6 per cent per annum. (L. 1917, 190.) Former limitation of irudehtedness. — Prior to 1917 the bonded indebtedness or debt assumed for construction purj)oses in favor of the United States was limited by law pursuant to Article III, section 52, of the State constitution to not exceed one-fourth of the assessed valuation of the real property of the district (sec. 23), as shown by the assessment thereof made for the purpose of determin- ing the value thereof, or at the last annual assessment. C onstitutioTud amendment. — An amendment to the constitution, however, was adopted in that year granting the legislature power to authorize all such indebtedness as may be necessary to provide for the conservation and development of all the natural resources of the State, including irrigation and drainage among the means thereto. For this purpose conservation and reclamation districts may be created. The indebtedness thus authorized may be evidenced by bonds, which shall be a lien upon the property of the district and shall be discharged by funds raised by assessment and levy. " Conservation districts!'''- — Under this amendment, the legislature passed an act providing for the creation of such conservation and reclamation districts in the manner in which water improvement districts are organized. Districts whether organized before or after the passage of the act, may avail themselves of the provisions of the constitutional amendment and of the act and become conservation and reclamation districts, thus removing the constitutional limita- tion of indebtedness. 148 HANDBOOK OF IRRIGATION DISTRICT LAWS. Election to secure constitutional privilege. — Upon presentation to the directors of such district of a petition signed by 20 per cent of the owners of lands in any water improvement or irrigation district praying that the district be made a conservation and reclamation district for the purposes of the act, it becomes the duty of the board to call an election. Such election is conducted as provided for gen- eral elections in such districts. If the vote is favorable to the change, the district becomes a conservation and reclamation district upon order of the directors without change of name or impairment of obligations jjreviously incurred. (Fourth called session, 1918, 40.) The Supreme Court of Texas in the case of Dallas County Levee District v. Looney, has upheld the validity of this act in a decision based primarily upon levee district questions, but having equal appli- cation to irrigation districts. This decision (unprinted) was ren- dered on December 18, 1918. The bonds under the act may not be made payable more than 40 years after the date. The usual preference in the order of priority of time is given to bond issues and contracts with the United States. (Sec. 58.) C on-firmation. — No suit can be brought contesting the validity of the district or of the bonds or Government contract except in the name of the State of Texas and by the attorney general, either upon his own motion or that of a party affected thereby upon good cause shown except as in the act provided. (Sec. 59.) Before any bonds are offered for sale an action must be brought in the district court to determine the validity of the bonds, for which jurisdiction of all parties is had by publication. At the request of the Secretary of the Interior a similar action may be brought to de- termine the validity of the Federal contract. In such cases notice must be served with a copy of all proceedings (sec. 60) upon the attorney general, who is then required to examine the proceedings and file an answer tendering the issue of the legality of the bonds or contract. Sec. 61.) If the judgment be adverse to the district any error committed may be corrected as directed by the court, and a judgment rendered showing that the corrections have been made. This judgment is re- ceived as res judicata in all cases relating to the bonds, the collection of monevs for the United States, and the validity of the district. (Sec. 62.") Bonds to he certi-fiecl. — The comptroller is required to attach to each bond a certificate bearing his signature and official seal, show- ing that the decree has been filed in his office. (Sec. 64.) Sale or exchange of honds. — The directors may offer and sell the bonds upon the i3est terms possible, but at not less than the face value thereof. They may exchange the bonds for property or in payment for work. (Sec. 66.) Zery. — The directors must levy a tax upon all property in the dis- trict sufficient to pay the interest and provide a sinking fund to re- deem the bonds at maturity. If contract be made with the United States a tax shall be levied to meet the installments as they become payable. (Sec. 68.) The tax is levied in connection with the original bond issue, re- mains in force from year to year as the levv for that purpose, until a new levy shall be made. The board may from time to time increase TEXAS STATUTES. 149 or diminish such tax so as to adjust the same to tlie taxable values of the property and the amount to be collected, so as to raise a suffi- cient amount to pay the interest and sinking fund on outstanding bonds. (Sec, 112.) Funds. — All moneys received from taxation are covered into an interest and sinking fund, which shall only be paid out for satisfy- ing the bonds or contract with the United States. (Sec. CO.) The moneys collected by assessment, or otherwi.se, for the mainte- nance and operation of the system are covered into the maintenance and operating fund. (Sec. 70.) E'tnlncrtt domain. — The right of eminent domain includes the property necessary for drainage ditches and level's, but may not be exercised against land used for cemetery purposes and property owned and used to supplv water and for levees and drainage ditches. (Sec. 77.) The right to acquire property and to condenni is followed by a prohibition against the condemnation of any irrigation system built by any individual or corporation authorized to appropriate water and construct works, but any such system may be acquired by con- tract with the owners. (Sec. 24.) Dissolution. — Three methods for dissolution are provided : First, if any district has- not within two years following organi- zation begun to acquire the necessary property and diligently to pursue the purposes of the district it may be dissolved without the necessity of taldng any action. Judgments for debts may be ob- tained against such dissolved districts and are enforceable in the same manner as judgments against disincorporated cities or towns. Secondly, when all obligations have been fully discharged the dis- trict may. dissolve by following the same procedure as is prescribed for its organization. Thirdly, districts may also voluntarily abolish their corporate existence in the manner prescribed for drainage districts. (Sec. 79.) Distncts lying in two or more counties. — Organization of districts lying partly within two or more counties is not obtainable as else- where through petition to the board wherein the larger area is situ- ated, but through petition to each board of county commissioners. An election is then held in each county, but a two-thirds vote of the district as a whole, as shown by canvass by the county judge of the district having the larger acreage, suffices for organization. (Sec. 80.) Provision is also made for the annexation, by special proceedings, of lands lying in an adjacent county. An election must l)e held in the established district, at which a two-thirds majority of the resi- dent property taxpayers is required to authorize the inclusion. (Sec. 83.) Constmctioii vwrh. — More than usually elaborate provisions are prescribed Avith regard to the functions of the board of directors in their construction work. (Sees. 84 to 94.) Revenue for operation and mnintenance. — The entire operation and maintenance cosl; is not obtainable by taxation or through levy- ing such assessments as public corporations customarily levy and as these districts levy to secure construction funds. Every person desiring to receive water during any year must fur- nish to the secretary a statement showing the acreage to be irrigated 150 HAT^DBOOK OF lERIGATIOX DISTRICT LAWS. and the kind and area of crops to be planted, and must pay at the same time such proportion of the water charge or " assessment " (in reality in the nature of tolls) therefor as may be prescribed by the board. If he fail to do so there is no obligation upon the district to furnish him water for that year. Same — distinction tetiveen user and nonuser. — The board must esti- mate the expense for the year for operation and maintenance of the system and a portion thereof, not less than one-third nor more than two-thirds, shall be paid by pro rata assessment, of the usual type, against all areas which the district is in position to water by its sys- tem, whether actually irrigated or not. The remainder of the esti- mated cost shall be paid as charges or " assessments " by the persons actually applyig for water, to be prorated among the applicants, having due consideration of the acreage irrigated and the crops of each water user. Each water user shall pay the same price per acre for use upon the same class of crops, but the distinction which relieves one who fails to put the water to use from the proportionate cost in full required by the laws of other States is believed to be a step in the vrrong direction and favoring the speculative holder. These charges are paid in installments and at times to be fixed by the board, but when the crops are harvested the entire unpaid " assessment " at once becomes due and must be paid within 10 days thereafter and before tlie removal of the crops from the county. The board is authorized, in its discretion, to require every water user to enter into a contract with the district covering his needs for the year, and to require negotiable notes as security. The contracts, however, are not to constitute a waiver of the lien upon the crops, M hich is expressly given by the act. The board is authorized further to borrow money at interest not to exceed 10 per cent for operating and maintenance expenses and to hypothecate its notes or contracts with the water users. The crop lien of the district to secure^ assess- ments is superior to all other liens upon the crops, and the district's assessments bear interest at 10 per cent. Further security is obtained in the right of the district to shut off water for nonpayment, the pro- A-isions as to security running with and binding the land. Moreover, delinquents in these assessments are posted. Sam,e — lohere Government contract. — In case of contract with the United States the same remedy applies as to operation, maintenance, and rental charges. The Federal reclamation laws, however, are declared to be applicable and all water, the right to the use of which is acquired by the district under contract with the United States, shall be distributed and apportioned in accordance with the acts of Con- gress, the rules and regulations of the Secretary of the Interior, and the provisions of the contract. ( Sec. 95. ) The assessments for operation and maintenance are collected under the direction of the board bv the assessor and collector of taxes. (Sec. 98.) Additional assessments. — In case the revenue thus received is in- sufficient for the expenses of the district, the balance is assessed pro rata in accordance with the assessments previously made for the then current year and are paid under the same penalties within 30 days from the time the additional assessment is made, due notice of which is given both by posting and mailing. (Sec. 96.) UTAH STATUTES. 151 Drainage. — Included in the plans of any district may be the neces- sary drainage ditches and the levees required for the protection of the land under the system. Water improvement districts maj' purchase the systems of drainage districts provided the debts of the latter are assumed. (Sec. 97.) Depository. — The district selects a depository of its moneys under the provisions applicable to counties. (Sec. 100.) A competent auditor to examine the books and accounts of the depository must be appointed each year. (Sec. 104.) Joint construction of loorks. — Two or more districts may jointly construct and own irrigation works and reservoirs under written contract pursuant to ratification election which must carry by a majority vote in each of the two districts. The management and construction is undertaken jointly by the two boards. (Sec. 106.) Transfer of water right. — Lands within the district which are difficult to irrigate may be permitted to have the water right trans- ferred to other lands adjacent to the district, which may be admitted upon an equal basis of water service. (Sec. 110.) Investvient of sinking funds. — Moneys in the sinking funds may be invested in bonds of the United States, the State of Texas, any county, irrigation or water improvement district, city, town, or school district in the State of Texas, provided such bonds do not mature subsequent to the time of maturity of the bonds for the pay- ment of which the sinking fund was created. (Sec. 113.) Refunding bonds. — Refunding bonds may be issued bearing the same or a lower rate of interest than the old issue and may be applied to the purchase of the old bonds redeemed at par or at a discount. The comptroller of public accounts shall not register the new bonds until the old bonds in lieu of which they are issued are presented for cancellation or are covered by a valid contract. If the new bonds are of the same amounts and have the same dates of maturity as the old bonds, they may be authorized without an election, but if they create a greater burden in any respect than the old bonds, an elec- tion must be held under the same provisions of law as in the case of an original issue of bonds. (Sec. 116.) Districts in unorganized coumties. — Persons in any unorganized county desiring to organize a water improvement district may peti- tion the commissioners' court of the county to which the unorganized county is attached for judicial purposes. (Sec. 117.) Utah.^ The Utah law will be found in chapter 74 of the Session Laws of 1909, pages 144 to 168, as amended by the laws of 1913, chapter 101, page 194, and by Laws, 1917, chapter 33, page.77. Two methods of initiating. — In Utah, in distinction from all other States, irrigation districts may be initiated not only by the land- owners, but it is provided that the governor of the State, upon recom- mendation of the State engineer, may propose the organization. Purposes. — The purposes of organization are " in interest of con- serving and putting to beneficial use the public waters of the State, and preventing undue waste thereof." 1 See p. 87 for the pui-pose and scope of this discussion. See also Addenda, p. 170, for changes made by substitute act passed in 1919. 152 HANDBOOK OF IRRIGATION DISTRICT LAWS. Petition. — If the landowners act, it may be by petition to the board of county commissioners on the part of 50 or a majority of the owners. Resident entrymen, subject to the provisions of the Federal act of August 11, 1916, and purchasers of State lands in the district, are within the definition of owners of land. (Id.) Imgated lands exempt. — Where, however, irrigation systems have been constructed before the passage of the act, these systems and " the lands fully watered thereby shall be exempt from the operation of this law except such district shall be formed to purchase, acquire, lease or rent such ditches, canals, reservoirs, and their franchises, or unless such district shall be formed to make contract with the United States under any Federal law." (Sees. 1 and 2, L. 1917, 77.) Water survey and allotment. — The petition, besides the usual prayer, is required to apply for a water survey and allotment of water for the lands within tlie proposed district. The county board sends a copy of the petition to the State engineer with the request that water survey and allotment be made. The State engineer must make same for each 40 acre tract or smaller tracts in separate owner- ship and report to the county board, after which notice of hearing is given. (Sec. 2, L. 1917, 78.) Hearing on petition. — The county board, upon the hearing, deter- mines, lists, and plats the lands to be included and hears applications for changes. Lands not embraced in the petition may be included at the hearing and allotted water by the county board " using the allotment made by the State engineer for similar lands as a basis." If the county board shall refuse or dismiss the petition it must state its reasons in writing, and if in error a writ of manadamus may issue. (Sec. 3, L. 1917, 79.) Elections and electors. — All persons (including corporations) who are ownere of agricultural lands to which water has been allotted, are entitled to vote at all elections. Each elector is entitled to one vote for every acre foot of water or fraction thereof allotted to land owned by him, and must sign the ballot indicating the number of acre feet allotted to his lands. (Sec. 4, L. 1917, 80.) A majority of the votes cast is sufficient to organize a district. (Sec. 5, L. 1917, 81.) Powers of the hoard of directors. — Among the powers of the board is that of purchasing the capital stock of mutual irrigation coni- panies organized for the sole purpose of owning and operating irri- gation systems, but the authority to purchase less than a majority of the capital stock is denied. In case of the purchase of rights and property, the bonds of the district may be used at their par value as may be most advantageous without previous offer of sale, but there is the prohibition (which exists also in several other States) against a contract over $10,000 and not over $25,000 being made without rati- fication by land owners. Still larger contracts require an election. (Sec. 11, L. 1917, 83.) Power to lease or rent water not needed by the land owners or to contract for the delivery thereof to other lands within or without the district at not less than one and one-half times the district tax is- given to the board. Assigmyient or lease of water. — Individual land owners may assign their I'ight to water apportioned for any one year to other land own- UTAH STATUTES. 153 ers, provided both parties have paid all assessments duo. (Sec. 11, L. 1917, 85.) The board may also lease water to occupants and enti-yiiien of State and Federal land on the same terms and may contract with such persons for their inclusion in the district when title is obtained, provided that protest in writing on the part of a majority of the land owners shall vitiate the action taken. (Sec. 12, L. 1917, 86.) Evidence of organization. — Certified copy of county commission- ers' order of organization is prima facie evidence of the legal suffi- ciency of the proceedings under the act in any court of the State, and where any irrigation district has exercised the powers of a district through a de facto boai-d, and its legality has not been questioned in quo warranto proceedings within one year after the date of the or- ganization order, the district shall be conclusively deemed to have been legally organized. (Sec. 14, L. 1909, 152.) Bond issue. — For the purposes of construction or purchase, for co- operation with the United States, or for the payment of interest upon bonds " during the period of construction and for not more than four years thereafter, and otherwise carrying out provisions of this act," the board of directors is required to make the necessary plans and estimates for an election upon a bond issue. At such an election a two-thirds majority is required of the votes cast to author- ize the bonds. These, when issued, run for a period not to exceed 40 years, and at the expiration of 11 years and annually thereafter not less than 3 per cent of the whole number of bonds must be pay- able. It is expressly provided that if the proceeds of the bonds be- come exhausted additional bonds may be issued after favorable ac- tion at a special election, the same to have a lien subordinate to the previous bonds. (Sec. 15, L. 1917, 87.) They ma}^ bear interest at not exceeding 6 per cent per annum. (L. 1917, 88.) If the proceeds of the bonds be insufficient, it is the duty of the board of directors to complete the construction plans by levy of assessments. (Sec. 25, L. 1917, 95.) Confirniation. — Confirmation proceedings in the matter of a bond issue are discretionary. The statute is sufficiently broad to include confirmation of proceedings for the authorization of contract with the United States, and for the allowance and adjustment of assess- ments for lands under Federal contract where a partial prior water right existed. (Sec. 50, L. 1917, 99, and Sec. 19, par. 5; L. 1917, 91.) The decree may determine the validity of the contract with the United States. (Sec. 54, L. 1917, 101.) Sale or exchange of honds. — If no bid is received as the result of an advertised sale of bonds, the board may use the bonds for the purchase of canals, reservoirs, and other necessary property includ- ing the capital stock of mutual companies or for construction pur- poses at not less than 95 per cent of the face value. (Sec. 16, L. 1913, 198.) Annual assessment determined. — The board of directors is required annually to determine tlie amount of money necessary for the ensu- ing year for district purposes, including the payment of assessments upon capital stock of mutual irrigation companies owned by the district. This amount, together with additional amounts necessary to meet any deficiency in the payment of expenses theretofore in- 154 ha:ndbook of irrigation district laws. curred, is certified to the county commissioners of the county wherein the office of the district is located. (Sec. 18, L. 1917, 89.) Basis of assessment. — The county assessor of each county affected does the work of assessment, entering the assessment of all real es- tate to which water ha-s been allotted, using the basis of the value per acre foot of water allotted, although the board of directors may di- vide the district into units and fix a different value per acre-foot in respective units, in which case the assessor shall use the same basis. (Sec. 19, L. 1917, p. 90.) In case of contract with the United States, however, the assess- ment may he otherwise apportioned to accord with the Federal laws, and provision is made in the same event for the existence of a rental status for the lands, for postponement of certain charges by contract with the United States where exceptional difficulties exist, for the division of the project and the placing of the same upon a repayment basis in successive units, and for the granting of equitable credit to district lands previously irrigated with due consideration to the cost of the additional rights acquired under contract with the United States. After publication of notice, a meeting of the board is held for the purpose of adjusting the rights of such prior owners and making an allowance, which, when confirmed by the district court, becomes the basis of the assessment of such lands. (Id.) No land which from any natural cause can not be irrigated or cul- tivated is liable for taxes for irrigation purposes. (Id.) Bates of levy. — Immediately upon the receipt of the returns of the district assessments and the certificate of the board of directors show- ing the total amount of money required to be raised as herein pro- vided, the county board must fix the rate of levy necessary to provide the above-described amount of money, including principal and in- terest on bonds, sums due the United States, and requirements for other purposes necessary to be raised by levy of assessment. Such rates are certified to the county commissioners of each county em- bracing any portion of the district, and must be increased 15 per cent to cover delinquencies. For the purposes of the district the county connnissioners at the time of making the levy for county purposes must levy at the rates above specified upon all district real estate within their respective counties. All taxes levied under the act are special taxes. (Sec. 20, L. 1917,92.) Collection. — The county treasurer of the county in which is located the office of the district is ex-officio district treasurer. He must collect all district taxes in the same manner and at the same time as taxes for 'county purposes, including both in the same receipt. (Sec. 21, L. 1917, 92.) Except as modified by the act, the revenue laws of the State are applicable, provided that lands are sold sep- arately for delinquent district taxes; a separate certificate of sale is issued, and the period of redemption from sale is fixed at two years. District taxes " constitute a first lien on the property assessed, which lien shall remain in force until the taxes are paid." (Sec. 22, L. 1917, 91.) General expenses. — For organization, operation, and maintenance purposes, or for rental of water, tolls, and charges may be col- lected from water users or assessments mav be levied, or both. (Sec. 25, L. 1917, 95.) ■ WASHINGTON STATUTES. 155 Inclusion. — Inclusion petition may be made b}- holders of title representing a majority of the acrcaoc of lands to be included. The assent of the Secretai'V of the Interior is required where contract has been made with the United States. (Sees. 31 and 32, L. 1917, 9G.) Exclimon. — When there are no outstanding bonds and the ma- jority of the landowners in the district do not protest in writing within 30 days, exclusion of lands may l)e ordered upon petition for the owners thereof. (Sec. 45, L. 1917, 98.) Such exclusion does not impair or discharge any contract, obligation, lien, or charge for which the district was or might become liable liad the lands not been excluded. (Sec. 31, L. 1917, 96. ) AVhen contract has been made with the United States, lands shall not be excluded unless the Secretary of the Interior assent in writing. (Sec. 45, Ij. 1917, 98.) Dhsolution. — Petition for dissolution may be made to the board of directors by landowners representing a majority of the number of acre-feet of Avater. If satisfied that all claims and bills have been fully settled, the board calls an election. In the event contract has beer, made with the United States the board is without jurisdiction to consider such petition or to hold such an election until the Secre- tary'' of the Interior certifies that all payments and obligations to the United States have been fully paid or that the Secretary of the Interior consents to such dissolution. (Sec. 48. L. 1917, 98.) If an election be held, a majoritv of the votes cast is decisive. (Sec. 49, L. 1917, 99.) Puhlic right to apfropTiate water 8usi'>ended. — The governor is authorized " for the purpose of preserving the surplus and unappro- priated waters of any stream or other source of water supply for use by irrigation districts" upon recommendation of the State engineer, to suspend the public right of appropriation of water for a period not exceeding five years. (Sec. 54x, L. 1917, 101.) Washington.^ The Washington law will be found in Remington's 1915 Codes and Statutes of Washington, sections 6416 to 6512, as amended by the Session Laws of 1917, chapter 162, page 723. Petition for organization. — Fifty or a majority of the holders of title, or evidence of title, to lands susceptible of irrigation, irre- spective of the acreage Avhich they represent, may petition the county commissioners for organization of an irrigation district. Pur^yoscH. — The objects of organization are not only ])rovision for the construction of works, but also the reconstruction, betterment, extension, purchase, operation, or maintenance of works already con- structed or the assumption as principal or guarantor of indebted- ness on account of district lands to the United States imder the 'Federal reclauiation laws. (Sec. 6416 as amended L. 1917. 723.) Lands xoTiich may he included. — The county board in determining the lands to be included, is not restricted to lands obtaining a new water supply or even lands that are proposed to be irrigated. It is sufficient if the lands are benefited, and town and city lots may be ^ See p. 87 for tJie purpose and scope of this discussion. See also Addenda, p. 171, for 1919 amendments. 156 HANDBOOK OF IRRIGATION DISTRICT LAWS. included and assessed. (Sec. 6417; also Sec. 6433 as amended L. 1917, 729.) Lands having a partial or full water right when included in any district must be given "equitable credit therefor in the apportion- ment of the assessments in this act provided." (Sec. 6417.) Orga/nization election. — After the heai'ing and settlement of the boundaries of the district and due notice given of election for or- ganization, two-thirds of all the ballots cast must be favorable for organization to prevail. Electors. — Any person of the age of 21 years, being a citizen of the United States and the State of Washington, holding title, or evidence of title, to land embraced within the district, may vote. Additional qualifications for voting required by the general elec- tion laws are not applicable. Where title to community property is held by husband and wife, both may vote. A corporation may vote by its duly authorized agent upon filing with the election officers a written instrument showing his authority. (Sec. 6418 as amended L. 1917, 724.) Condemnation. — Condemnation proceedings are governed by the laws applicable to condemnation by private corporation. The court may consolidate separate suits for condemnation of rights of way into a single action, a separate finding of the court or jury being required as to each separate tract. (Sec. 6427.) The right of eminent domain for the construction of works across streams, highways, etc., is given and right of way over State lands is dedicated for district purposes. (Sec. 6453.) Bond ai' contract election. — The bond election or election upon contract with the United States requires only a majority of the votes cast. Bond issiie. — Alternative plans for issue of bonds are offered. The bonds may run for 20 years, installments upon the principal begin- ning at the expiration of 11 years, or they may be issued to run for 40 years. (Sec. 6432-1.) Provision is made, in case the moneys thus raised are insufficient, for the calling of a second bond election or for the completion of the plans by the levy of assessments with- out bonds. It may be stipulated in the bonds that no interest shall be paid during the first three years after date of issue, and that in lieu thereof the rate of interest shall be increased for a succeeding period of years ; but in no case shall the aggregate of interest paid on the principal exceed an average of 6 per cent during the entire life of the bonds. (Sec. 6430 as amended L. 1917, 726.) Sale of honds. — Bonds may be sold at public or private sale in the discretion of the board or exchanged for labor and materials necessary for construction, b«t-ihey ma.y not be sold or exchanged for less than 90 per cent of their face value. (Sec. 6431.) Bonds a lien ufon the land. — Bonds and payments to the United States shall be paid by revenue derived from an annual assessment upon the real property of the district and all such real property shall be and remain liable to be assessed for such payments. The bonds or Federal contract obligations become a lien upon all the water rights and other property acquired by any irrigation district and upon its waterways, reservoirs, machinery, and improvements. If default be made in the payment of the principal or interest, the holders of the bonds, or the United States, as the case may be, may WASHINGTON STATUTES. 157 take possession of tlie property of the district and control the same, enjoy the rents, issues, and profits until the lien created can be en- forced bv suit as in the case of foreclosure of mortgage on real es- tate. (Sec. 6432.) Assessments. — Assessments were formerly upon the ad valorem rule of California, but in 1915 (L. 1915, 520) Washington adopted the benefit basis of assessment witli the proviso '* that nothing herein shall be construed to affect or impair the obligation of any existing contract providing for a water supply to lands so assessed, unless the rights under such contract shall first have been acquired by said district, and in acquiring such riglits the district may exercise the right of eminent domain." The secretary must prepare an assess- ment book with all lands listed, showing the ratio of benefits and reference to any water-supply contracts. Any property which may have escaped assessmeut for any year shall, in addition to the assess- ment for the then current year, be assessed for such prior year in the same manner as for the current year. (Sec. 6433 as amended by L. 1917, 729.) Tlie assessment becomes a lien upon the real property annually on a specified date, but as between grantor and grantee does not attach until a later date. Such lien is paramount to any lien there- tofore or thereafter created, whether by mortgage or otherwise, except for prior assessments and general taxes, and such lien shall not be removed until the assessments are paid or the property sold under the law. (Sec. 6438.) Equalization. — After completing his assessment book, the secre- tary delivers it to the board, which, upon due notice, meets as a board of equalization. (Sees. 6435 and 6436.) Levy. — The directors then levy an assessment sufficient to raise the annual interest on the bonds, increasing the amount thereof in ensuing j^ears so as to discharge the bonds as they mature or to raise the payments to the United States. Similar assessment and levy must be made for the expense fund, including operation and maintenance costs. Special funds are provided and the assessments are collected by the county treasurer. Neglect of duty hy oificers. — In case the board of directors fails to cause assessment or levy or the equalization thereof to be made, the duty of performing these acts devolves upon the board of county commissioners of the county where the office of the board is located. The treasurer of such county, in case of the neglect of the secretary of the board to act, must perform his duties. (Sec. 6437.) Payment of assessments. — The secretary must deliver the assess- ment book to the county treasurer of the county in which the office of the board of directors is'^ftuate^fTtrrd after notice taxes become delinquent on the date specified, unless 60 per cent of the taxes have been paid. If 60 per cent be paid, the remaining 40 per cent shall not become delinquent, except as a second installment and at a later date. In the case of districts comprising lands obligated to the United States under the Federal laws, the notice as to the date of delinquency shall state that assessments against lands in connection with such obligations will become delinquent at the times and in accordance with the provisions of the Federal laws. (Sec. 6439 as amended by L. 1917, 731.) 158 HANDBOOK OF IRRIGATION DISTRICT LAWS. Publication of delinquency lists. — The county treasurer must pub- lish the delinquency list twice each year, at the times when the two respective installments become delinquent. Publication of delin- quency lists on amounts due the United States are begmi at a later date and delinquent payments bear interest and penalties in ac- cordance with the Federal law. (Sec. 6440 as amended by L. 1917, 732.) Tax sale. — The landowner, or, on his failure to do so, the county treasurer, may designate the portion of any tract to be sold first at any delinquent tax sale, only so much as is necessary to pay the assessment and costs if sold. If there be no purchaser, the whole amount of the propertj^ is struck off to the irrigation district, which has the same rights as a private purchaser. Authority to convey such land must be confirmed by resolution of the board fixing the price not less than the reasonable market value of the land. (Sec. 6442.) Redemption of the property may be made within two years from the date of purchase. (Sec. 6444 as amended L. 1917, 733.) Redewptioii of honds. — Whenever, after 10 years from the issu- ance of bonds, there shall be $10,000 in the bond fund, the board may advertise for bids and apply said sum to the redemption of the bonds at the lowest price bid, but not in any event at more than par. (Sec. 6449.) Bids for construction work. — The usual clause requiring public advertisement for bids for construction work is declared not to apply to cases where the board is authorized to exchange bonds for labor and material, or to contracts with the United States. (Sec. 6450.) General expenses. — To defray the expenses or organization, opera- tion, and maintenance, tolls and charges for water service may be imposed or assessments may be levied, or both. (Sec. 6452.) Special assessments. — Special assessments may be levied for rais- ing additional moneys for the purposes of the act, an election car- ried by a majority of the votes cast being necessary. Fifteen per cent for delinquencies must be added to the whole amount required. (Sec. 6456.) Limitation of indebtedness. — To the standard prohibition against the incurring of debts not expressly authorized there is added a pro- viso that the board may incur a debt for necessary engineering in- vestigation of the feasibility of the project not to exceed 25 cents per acre. Moreover, in case of emergency the board may incur a debt not more than 15 per cent of the total rates, tolls, charges, and as- sessments for the current year for operation, maintenance, and im- provement of the worksv and may cause warrants to issue therefor. The amount of the warrants shall'be included in the next annual levy for maintenance. (Sec. 6457 as amended L. 1917, 735.) Local im/provement cliMi'i.cts. — The comprehensive and excdlent Washington plan for local improvement districts within irrigation districts has been outlined ii> the general discussion. (See supra, p. 76.) Inclusion of lands. — The boundaries of the district may be changed, but if contract has been made with the United States, the Secretary of the Interior must assent in writing. (Sec. 6462.) Petition for the annexation of lands may be made by the holders of title represent- WASHINGTOi^ STATUTES. 159 in^ one-half or more of a body of contiguous lands adjacent to the irrigation district. (Sec 6463.) The provisions are normal ; the election, if one is required by the development of the proceedings, requiring a majority of those \oting. (Sees. 6464 to 6473.) Exclusion of lands. — The exclusion of lands from the district re- quires that the holders of any outstanding bonds, or the Secretary of the Interior in case of contract with the United States, shall give as- sent in writing, Avhich is filed with the board of directors. If assent is not filed, the board must dismiss the petition. (Sec. 6480.) Even though such assent is filed, if there are objections showing sufficient cause an election must determine, by a majority of the votes cast, the question of the proposed exclusion. (Sees. 6481 and 6482.) C onflrmation. — Proceedings in confirmation are discretionary with the directors. They nuiy be initiated to determine the validity of bond issues and the authorization of contracts with the United States, including matters relating to local improvement districts. The provisions are substantially as in other States. (L. 1917, 741 to 743; sees. 6492 and 6494.) Dissolution — Whei'e no outstanding honds. — Iri^igation districts may be disorganized and their affairs liquidated in case there is no bonded indebtedness outstanding (6495) in the following manner: Petitioii therefor must be signed by one-third or more of the holders of title who are qualified electors of the district and delivered to the board of directors. (Sec. 6496.) At the election ensuing a three- fifths majority must favor the dissolution, whereupon the board of directors presents to the superior judge of the county an applica- tion for an order of dissolution. A sw^orn statement by the directors must be filed showing the outstanding indebtedness of the district or that there is no such indebtedness. The order is entered if the court, upon consideration, find compliance with the law. (Sec. 6498.) Upon such dissolution the board of directors " shall be trustees of the creditors and of the property holders of said district for the purpose of collecting and paying all indebtedness of said district, in which actual construction work has been done, and shall have the power to sue and be sued? The board must levy and collect a tax sufficient to pay all debts, the same to be levied and collected as prescribed in general for taxes of irrigation districts. Any bal- ance after the clelDts and costs have been paid is refunded in propor- tion to the contribution by each assessment payer. (Sec. 6499.) Dissolution — Where honds are outstanding. — If. however, there are bonds of the district outstanding, the dissolution proceedings can only be commenced with the written consent, duly acknowledged, of two-thirds in amount of the holders of all such bonds, which con- sent must be filed with the county auditor. (Sec. 6501.) Then a peti- tion on the part of one-third of the qualified electors praying that the district be dissolved shall be filed with the county auditor. (Sec. 6502.) The board of county commissioners calls an election upon the dissolution which requires a majoritv of the votes cast. (Sees. 6503 and 6505.) The books and records of the district are then delivered to the county auditor, who certifies to the county clerk a transcript of the 160 HANDBOOK OF IREIGATIOlSr DISTRICT LAWS. proceedings before the county board and a statement of the indebt- edness of the district as it appears from the records. (Sec. 6506.) The proceeding- is then docketed in the superior court and notice for the filing of all claims is given. The court proceeds to deter- mine the validity of claims against the district which have not been barred by the statute of limitations. (Sees. 6507 and 6508.) From the resulting judgment appeal may be taken. If not, a master is appointed who must give notice of the sale of the rights and fran- chises of the district not including, however, any property which has been sold for taxes or assessments. The sale is of the same description as that of real property on execution. " Such master is authorized to receive in payment of the purchase price any securities or obligations of such district, the validity of which has been established by the previous judgment of the court, as herein provided; such securities or obligations are to be accepted at their face value and no bids shall be accepted, and no sale of said property shall be made for a less sum than the amount of bonded indebtednes of such district, including all accrued interest." (Sec. 6509.) The return of the master is filed with the court, which confirms the sale if satisfied that it has been fairly conducted. Deed or con- veyance is then delivered bv the master to the purchaser. (Sec. 6510.) As soon as such sale is confirmed, the county commissioners levy an assessment to liquidate " all outstanding indebtedness of such district, exclusive of the bonded indebtedness herein provided, on all the property within the district, subject to assessment under the general irrigation district laws of the State, which indebtedness shall be ascertained by reference to the judgment of the court as herein provided." In levying such assessments the county board is governed by the general irrigation district laws, except as otherwise specifically pro- vided. The county assessor under the direction of the county board prepares an assessment roll of the lands of the district from the last assessment roll of the county for State and county taxes. The board then equalizes the same after notice in the same manner as directors of irrigation districts are required to do. The county auditor per- forms the same duties as under normal circumstances would devolve on the secretary of the district. In all other respects such tax is collected as under the general irrigation district laws. (Sec. 6511.) As soon as the sale is confirmed the court makes an order dissolv- ing the irrigation district. This is recorded in the office of the county auditor and the district ceases to exist except for the purpose of collection of its indebtedness, all papers being turned over to the county auditor and. the bonds and other obligations canceled as soon as paid. (Sec. 6512.) Wyoming.^ The Wyoming law will be found as chapter 72 of the laws of 1907 and in the Wyoming Compiled Statutes of 1910, sections 829 to 873, inclusive, as amended by Laws, 1911, chapters 31 and 99. > See p. 87 for the purpose and scope of this discussion. See also Addenda, p. 172, for 1919 amendments. WYOMmC STATUTES. 161 Petition for organization. — Organization is begun in W3'oming by petition to the board of county commissioners on the part of a ma- jority of the freeholders within the district owning a majority of the acreage belonging to the freeholders within the district. (Sec. 831.) Lands exempted. — ^AVhere irrigation works have been constructed or contracted for prior to the passage of the act, the lands there- under are exempt from the act unless the district be formed to ac- quire, lease, or rent the works and their franchises with the consent of the owners. (Sec. 829.) The act does not apply to lands which have been brought under the Care}' Act of Congress " nor to lands and the owners thereof situated under and susceptible of irrigation from any system of reservoirs, ditches, or canals for which water-right permits have been granted, or shall hereafter be granted, by the State engineer to persons or corporations who propose the construction of reservoirs, ditches, or canals for the irrigati(m of the lands sus- ceptible of irrigation therefrom." (Sec. 873.) The meaning of this provision is not apparent, but it probably would be construed to prevent the automatic application of the act to irrigated lands whose owners do not take steps for organization under the act. No land may be included in the district if the owner thereof shall make application at the hearing before the county commissioners to withdraw the same. (Sec." 832.) This is regarded as a serious defect in the law, as it makes organization an entirely voluntary af- fair as regards each individual tract and opens the way to what is known as the " spotted " or " checkerboard " project. Any owner Avho desires to withdraw and allow the irrigation system to be built, finding it inconvenient to improve his land or hoping at a lat^r date to be able to dispose of his land at a higher price, may withhold his support from this public improvement. Purposes. — The purposes of organization include not only pro- vision for irrigation (sec. 829), but also for improving the water supply, as well as for the repair and maintenance of irrigation works after they have reverted to the landowners from the original person Or corporation undertaking the project. (Sec. 873.) Electors and electio7is. — Qualified electors are defined as citizens of the United States or those who may have declared their intention to become such. As regards voting upon the organization of the district, or for the first board of directors, or for the issuance of bonds, or upon contracts in excess of $25,000, an elector residing outside of Wyoming or more than 10 miles beyond the exterior boundaries of the district may vote without being personally pres- ent, by the mailing of an affidavit which states his qualifications as an elector and also serves the purpose of a ballot. (L. 1911, 162.) All persons who are both freeholders and qualified electors within the district and who have paid a property tax in the proposed dis- trict during the preceding year are entitled to vote at the organiza- tion and other elections. (Sec. 832.) Elections are conducted as nearly as practicable under the election laws of the State. (Sec, 833.) A majority of the votes cast at elections determines the ques- tions presented. 160047—20 11 162 HANDBOOK OF IRRIGATION DISTRICT LAWS. Report of State eng'mee7\ — The State engineer is required, as re- gards the origin of the district, to make report as to the feasibility and probable cost of the irrigation sj^stem, this report to accompany the petition. (Sec. 831.) Action on petition. — If the county board denies the petition or dismisses the same it is required to state the reasons in writing,, and if the same are not well founded a writ of mandamus is issued, which must be heard within 20 days. (Sec. 832.) Contracts. — Contracts involving a consideration exceeding $10,000' and not exceeding $25,000 are not binding unless authorized in writing by not less than one-third of the legal electors of the district according to the number of votes cast at the last district election. Contracts exceeding $25,000 require an election. (Sec. 839.) Water apportioned pro ratCi.. — Water is apportioned to the land- owner " pro rata to the lands assessed." The board has the power to lease the use of water at its discretion, the rental not to be less than one and one-half times the amount of the district tax which would be required if the land were held as a freehold within the district. A landowner, provided he has paid in full all assess- ments, may assign the water apportioned to him or a part thereof for anv year to any otlier bona fide landowner in the district. (Sec. 839.) Evidence of legal existence. — Judicial notice is taken of the exist- ence of irrigation districts after they have filed for record a certified copy of the countj^ commissioners' order defining their boundaries. Where any such district has exercised its appropriate functions and the legality of its organization has not been questioned by proceed- ings in quo warranto Avithin one year from the date of the filing of the order, it is conclusively deemed to be a legally established district and its lawful formation can not be questioned in any sub- sequent suit or proceeding. (Sec. 842.) Bonds. — For purposes of construction and the acquisition of property and rights and to pay the first year's interest upon the bonds, the board of directors is required to call an election upon a l)ond issue. Plans of the pro])osed irrigation system, however, must first be submitted to the State engineer and his written approval obtained. The bonds when issued run for 20 years, the payments upon the principal beginning at the expiration of 11 years. A ma- jority of the electors, however, may provide for the issuance of bonds maturing earlier than at the end of 20 years. Interest is limited to 6 per cent per annum. (Sec. 843.) WTien funds derived from any previous bond issue have been exhausted by authorized expenditures and the board deems it neces- sary to raise additional money, another special election is required to be held. The taxes for the later bond issue constitute a lien subordinate to that of any prior issue. (Sec. 843.) Bonds may be sold at a price not less than 90 per cent of the face value. (L. 1911, 44.) Assessment and levy. — ^" Said bonds, and the interest thereon, shall be paid by revenue derived from an annual assessment upon the real property of the district, and the real property of the district shall be and remain liable to be assessed for such payments as herein provided." (Sec. 845.) WYOMING STATUTES. 163 The machinery for taxation may be sninmarized as follows: The board of directors is required each yeai- to determine the amount of money I'equired to meet the maintenance, operatinist., I'etrie r. ( U. S.) 62 Nampa & Meridian Irr. Dist. v. Petrip (Lhiho) 14,23,26,29 Nampa r. Nampa & Meridian Irr. Dist. (Idalio) 71,73 Nevada Nat'l Bank of San Francisco v. Bd. of Supervisors, Kern County (Calif.) 62 Nevada National Bank v. Poso Irr. Dist. (Calif.) 24 New Sweden Irr. Di.st., Knowles v. (Idaho) 60,68 Niday r. Barlver et al. (Idaho) 69,70,72 Nile Irr. Dist. v. Gas Securities Co. (Fed.) 79 Noble Ditch Co., Stuart r. (Idaho) 29 Noon V. Gen. Irr. Dist. (Fed.) 71 Norris r. Montezuma Valley Irr. Dist. (Fed.) 5ft' Norton i\ Town of Dyersburg (U. S.) 37 O. Okolona, Barnum v. (U. S.) 38 Onedia Irr. Di.st, Page v. (Idaho) 63 O'Neill V. Yellowstone Irr. Dist. (Mont) 13,49,68 Orchard Me.sa Irr. Dist., Rio (jlrande Junction Ry. Co. v. (Colo.) 62,65 Oregon Short Line R. R. v. Pioneer Irr. Di.st. (Idaho) 57,60 P. Pase r. Oneida Irr. Di.st (Idaho) 63 PaTmdals Irr. Dist r. Rathke (Calif.) 49 I'almer, Taylor r. (Calif.) 67 Patterson Co. Treasurer, Thomas r. (Colo.) 63 Paxton Irr. Dist. r. Conway (Nebr. ) 34 Payette-Oregon Slope Irr. Dist v. Peterson (Oreg.) 20 Payette-Oregon Slope Irr. Dist., Rathfon (Oreg.) 12 People r. Linda Vista Irr. Dist. (Calit) 17,51 People r. Penis Irr. Dist (Calit) 51 People f. Reclamation Dist (Calit) 20- People r. Sacramento Drainage Dist. (Calif.) 20 People r. Selma District (Calit) ^__ 12,84 People's Bank r. School District (N. Dak.) 37 Perris Irr. Dist., Fogg i\ (Calit) 47,51 Pen-is Irr. Dist, Leeman r. (Calif.) 36 Perris Irr. Dist, Miller i'. (Fed.) 17,41 Perris Irr. Dist., People r. (Calif.) 51 Peterson, Bd. of Dir. of Payette-Ore. Slope Irr. Di.st. v. Oreg.) 20 Peterson, Bd. of IMiddle Kittitas Irr. Dist. v. (Wash.) 12,67,68 Petrie, Nampa & Meridian Irr. Dist. r. (Idaho) 14,23,26,29 Petrie r. Nampa & Meridian Irr. Dist. (U. S.) 62 Pioneer r. Bradbury (Idaho) 56,57 Pioneer Irr. Dist., Bissett v. (Idaho) 29 Pioneer Irr. Dist. Ore Short Line R. R. r. (Idaho) 57,60 Pioneer Irr. Dist r. Stone (Idaho) 23,29 Pioneer Irr. Dist v. Walker (Idaho) 20 Pompton V. Cooper Union (U. S.) 36 Poso Irr. Dist., Crall v. (Calit) 48,49 Poso Irr. Dist.. Nevada National ]?ank v. (Calit) 24 Pi-eston, Little Walla Walla Irr. Dist v. (Oreg.) 68,6.3 Progressive Irr. Dist. v. Anderson (Idaho) 52 Progressive Irr. Dist., Smith r. (Idaho) 14,15 Prideaux, Indian Cove Irr. Dist r. (Idaho) .__ 12,23 Q- Quinton r. Equitable Inv. Co. (Fed.) 17 TABLE OF CASES. . 179 R. Page. Rathfon v. Payette-Oreg. Slope Irr. Dist. (Oreg.) 12 Rathke, Palnulale Irr. Dist. v. (Calif.) 49 Reclamation District, Hagar v. (U. S.) 11 Reclamation District. People v. (Calif.) 20 Redfield, .Jenison r. (Calif.) 72 Rialto Irr. Dist. v. Stowell (Fed.) 30,37,39 Rio Grande .Tuiiction Ry. Co. r. Orchard IMesa Irr. Dist. (Colo.) 62,65 Riverside Co.. Calif., v. Thompson (P>d.) 62 Riverside Irr. Dist., Wright v. (Fed.) 38 Riverside Reservoir & Laud Co. v. Green Citj- Irr. Dist. (Colo.) 21 Rollinger et al.. Rothchild Bros. v. (Wash.) 12,13 Rothchild Bros. r. Kollinger et al. (Wash.) 12,13 S. Sac County, Cromwell ^•. (U. S.) 38 Sacramento Drainage Dist., People v. (Calif.) 20 San Angelo, City of, Shapleigli r. (U. S.) 41 San Diego 1-. Irr. Dist. (Calif.) 39 San Diego r. Linda Vista Irr. Dist. (Calif.) 67 San Joaquin Irr. Dist., llarelson v. (Calif.) 81 San Joaquin Irr. Dist., AVigley v. (Calif.) 68 School District, People's Bank v. (N. Dak.) 37 kelnm District, People r. (Calif.) 12,84 Shapleigh v. City of San Angelo (U. S. ) 41 Shelton V. Gas Securities Co. (Fed.) 88 Shepard, Tulare Irr. Dist. v. (U. S.) 17.38,41 Smith V. Progressive Irr, Dist. (Idaho) 14,15 South San .Toaquin Irr, Dist. (Calif.) 68 South San Joaipun Irr. Dist., Harelson v. (Calif.) 81 South San Joa(iuin Irr. Dist., Wiglev r. (Calif.) 68 South Side Irr. Dist., Wilder r. (Colo.) 15 Starlight Irr. Dist., Danby v. (Oreg.) 47 State ex rel. Witherop v. Brown (Wash.) 62 Stimsou V. Alexandro Irr. L)ist. (Calif.) 3.3,35 Stone, Pioneer Irr. Dist. v. (Idaho) 23,29 Stowell, Rialto Irr. Dist. v. (Fed.) 36, 37, .89 Stuart V. Noble Ditch Co. (Idaho) 29 Supi^rvisors of Kern Countv, Nevada Nat'l Bank, San Francisco v. . (Calif.) 62 Supervisors of Riverside County v. Thompson (Fed.) 62 T. Tarbet et al„ Harris r, (Utah) 40,69,71 Tavlor r. Palmer (Calif.) 67 Thomas, Henrylyn Irr. Dist. v. (Colo.) 62 Thomas r. I'atterson Co. Treasurer (Colo.) 63 Thompson r. Emmett Irr. Dist. (Fed.) 42 Thompson, Supervisors Riverside Co.. Calif, r. (Fed.) 62 Thompson, Tipton Irr. Dist., Boskowitz r, (Calif,) 63 Tipton Irr, Dist., Thompson Collector, Boskowitz v. (Calif,) 63 Title & Doc. Restn. Co. v. Kerrigan (Calif.) 51 Town of Colona r. Eaves (U, S.) 38 Town of Dyer.sburg, Norton r, (U, S,) 37 Tregea. Board of Modesto Irr, Dist, v. (Calif,) 15,47,48,49,66 Tulare Irr. Dist. v. Shepard (U, S,) 17,38,41 Ty.son r, Washington Co, (Nebr,) 60 Vineland Irr, Dist,, Baxter r, (Calif,) 36 180 INOKX. w. Page. Walker, Pioneer Irr. Dist. v. (Idaho) 20 Ward Coiintv Irr. Dist., Barstow v. (Tex.) : 15 Wasliinston Co., Tyson v. (Nebr.) 60 Wenatcliee Reclamation Dist. v. Kimball (Wash.) 49 Wight v. McGiiigan (Nebr.) 15 Wigley V. South San Joaquin Irr. Dist. (Calif.) 68 Wilder r. Board of Directors of South Side Irr. Dist. (Colo.) 15 Wilson, Colburn v. (Idaho) 29,62,75 Witherop, Kinkade v. (Wash.) 39,51,68 Witherop ex rel, State (•. Brown (Wash.) 62 Wright V. East Riverside Irr. Dist. (Fed.) 38 y. Yellowstone Irr. Dist.. O'Neill v. (Mont.) 13,49,68 INDEX. A. Page. Abstracts of tillc, cxinuiiiatinii of, not necessary 9 Ad valorem nietliod of assessment 55-56 Adams, Frank, bulletin on California irrigation districts 9 Addenda, cliaiiyes in 3919 165-174 Adjndicati<»n of coullrmation upheld by State courts 50-57 Adjudication of water rijilits can not be done by districts 69 Administrators may sifn for lands, Nevada 129 Advantages of district orpnuzation 8-9 Advertising for construction by board of directors 21 Advertising for construction work, Washington 15S Agricultural land, owners of, qualifications as voters 19 Afkali, rise of. mentioned 26 Allotment of water, survey and, I'tah 152 Amendatory act. luiconstilutional, California 40 Ancient civilizations, place of birth 54 Anglo-Saxon institutions, fundamental principles of 7 Annexation of contiguous lands 78 California provision 78-79 Colorado provision 79 Election may be held , 7S Hearing . 78 Idaho provisions 78 Payments upon admission 78-79 Protest against annexation 78 Annexation. State statutes; California statutes 78,100 Idaho statutes 78, 113 Nevada statutes 129 Texas statutes 149 Annexation. (Sec aUo Inclusion of lands.) Annual assessments or once for all L 59 Annual meeting discussed 75 Annual reports. California statute on 92 Annual reports, Idaho statutes ; 109-110 Annual report. Nebraska statutes , 121 Antedated bonds invalid 38 Appeal on hearing, Texas 145 Appeal, reassessment of lands upheld on 58-59 ApF)ellate i)roceedings in confirmation 49 Apiiortionment of assessment annually or once for all 59 Ai»i)oi'tionment of assessments. Montana 167 Apportionment of water, California 105 Apportionment of water pro rata, Wyoming 162 Appropriation of water, public right to, Utah 155 Arid Lands. House Committee on Irrigation of, list of members 2 Arizona, outline of statutes of 87-90 Assessments , 89-90 Bond.s, confirmation of 88 Bonds nnist be sold at certain price 88 Confirmation 88 Cooperation with the Ignited States 90 Discharge of obligation, pi'ovision 58 Dissolution, petition for . 90 Elections and electorate 88. 105 Exclusion of lands ^ 90 Federal law, activities under.. 90 181 182 INDEX. Arizona, outline of statutes of — Continued. Page. Fi)rniation of district 87-88 Indebte Washington, provisions as to advertising -^^^ Without use of credit, California -J** Construction. (See also Cooperation.) Contract, authorized by vote of the electors ___----- ^- Contract between United States and irrigation district upheld ^-^ Contract over .$25,000, authorized by voters •*• Contract under .$10,000 usually ratified by directors 't-^ Contracts, State statutes: ,^ California, contract limitations in Idalio, statutes with United States ^!^;i Montana, statutes, with United States ^^^ Montijna. linntations in ^g- North Dakota, statutes '^.^ North Dakota, authorization ■- -—■ -" South Dakota, authorization by vote of electors not required ~- W:i-bington, statute limitations in ^^.,* Wyoming, statutes Z Cooperate, necessity of irrigation farmer to INDEX. 189 Page. CooptTiitiou .111(1 nierjior, iuU'idistrict Nl-84 (Joojierative (•(iiistnK-tiou . 82 Distiicts for iiitt'i-slnte projects ^ 82 CnlifoniiM statute ." 82-83 -Mt'tliods that of cooperation rather tliau coriHimte unity 82 Joint action in sccui'ln}^- irriyatiou works 83 Merger or consolidation : . 83-84 Overhead or reservoir districts 81 Oooperarlion, advantanes of 53-54 Cooperation, intei'state jiro.ject 82 Cooperation rather than corporate unity 82 < 'ooperation, State statutes : Arizona, statutes 90 < 'alifornia. statutes 96, 97 <'olorado, statutes 16«> Kansas, cooiierative construction by not authorized 21 Montana, statutes 1G7 Nevada, statutes 168 New Mexico, statutes 132,168 N Statutory bar to farm loans should be removed . 25-26 Corporate nature of irrigation district 11 Corporation as related to irrigation, the public . 7-10 Advantages of district organization 8-9 District organization not a panacea 9-10 Experience of the Federal Government 10 Growth of the public corporation idea 8 Irrigation as the fundamental institution 7-8 Irrigation farmer not an individualist 7 Projects not Federal 10 Corporation idea, growth of the public 8 Corporation, purchase b.v, Colorado statutes 106 Corporations. (See also Public corporations.) County board, action, Colorado statutes 102 Discretion in regard to boundaries 15 Coupons, interest, on bonds 37 _ Credit, construction, without use of 96 " Creditors consent to dissolution, Colorado statutes 105 Creidtors, protection on dissolution 85 Responsil)ilities of district and 52 Cultivation increased by irrigation district methods 9 D. Dakota provisions for relaxation of liability 58 Damage awards for drainage 29 De facto corporations, principles of, apply to irrigation districts IS Debts, adjustment on dissolution 85-86 Debts, apportionment of, Coloi'ado statutes 106 Debts, bonded 34-45 Debts, limitation. California statute ^^~^t Debts of irrigation districts 33^7 Bonded debts 33-45 Indebtedness not bonded 45-47 Debts not l)onded 45-47 Warrants 46-47 Debts, validity secured by publication 9 190 INDEX. Page. DefeetiAe assessment 62-65 Delinquency, denial of service for 71 Delinquency tax list publication, Washington 158 Delinquent tax sales : California statute 98 Colorado statute 104-105 Idaho statute 113 Montana statute 120 Delinquent tax sales. (See also Tax sales.) Denial of service for nonpayment 71 Depository for moneys, Texas 151 Dillon, John F., counsel in Fallbrook case 11 Directors, board of, functions 20-21 Disbursements, collections and, Montana statute 119 Disbursements, collections and. New Mexico statute 134 Discharge of obligation. Arizona 58 Discretion of board in assessing 62 Discretion of county boards as to boundaries 14 Dissolution of irrigation districts 84-87 Adjustment of indebtetlness 85-86 Colorado plan 86-87 Creditors to be protected 85 Express provisions necessary 84 General outline of the statutes 85 States permit dissolution 84-85 Two general methods of procedure 85 Dissolution and modification of boundaries 113-114, 167 Dissolution proceedings after failure to transact business for five years, Colorado 166 Dissolution, State statutes : Arizona districts 90 California statutes 100, 166 Colorado statutes '. 105, 166 Plan 86-87 Idaho, transfer of water-rights on 167 Montana, petition rules 167 Nebraska statutes 126 Nevada statutes 130 New Mexico statutes 134-135 North Dakota statutes 138 Oklahoma statutes 141 Oregon statutes 144 Texas statutes 149 Utah statutes 155, 171 Washington statutes 159-160 , Wyoming statutes 164 Distribution of water 69-70 Distribution of water under Secretary of Interior 22 Distribution of water. State statutes : California statutes ^ 70, 93 Kansas statutes 115 Nebraska statutes 121 New Mexico statutes 133 Oklahoma statutes 138-139 District officers, functions of 20-21 The board of directors and its functions 20-21 Other district officers 21 District organization, advantages of 8-9 Di-strict organization, not a panacea 9-10 Districts, interstate project 82 Districts of over .500,000 acres, California statutes 101 Donation of rights of way 74 Drainage, an engineering problem 26 Drainage assessment of high lands 30-32 Drainage benefits, Idaho decision of 31 INDEX. 191 Page. Drainage by irrigation districts 26-33 Drainage, an ii'rigatioii necessity 26 Drainage district statutes 27-28 Doctrine of Idalio courts 2S-2i> Experience of Federal service in drainage 27 Idalio charging high lands 30-32 liTigatioii (listi-ict slioiihl he used for drainage 28 May higli lands be assessed for drainage of low lands 30 Kecognition by Congress 27 Security against future seepage losses '. 32-33 Situation of other States 32 Sui)p]y and drainage system equally irrigation works 26 Drainage districts, identity of legal character with irrigation district 11 Drainage districts should be included in Smith Act 25 District statutes 27-28 Drainage, importance of revenue to pay for 53 Drainage, irrigation district may be used for 28 Drainage of high lands in Idaho, charging for 30-32 Drainage on reclaniati(,in projects 27 Drainage systems are irrigation works 26 Drainage works are irrigation works, Idaho decision 28-29 Drainage, State statutes: Colorado statutes 166-107 Idaho statutes 28-29, 30, 111-112 Nebraska statutes 124 Nevada, apportionment of benefits 168 New Mexico, drainage damage and assessment aw'ards in 29 New Mexico assessments 134, 169 North Dakota statutes 137 Oklahoma statutes 140 Oregon statutes 142 Texas statutes 151 Wyoming cooperative 173 Dry-farming industry, mention of 7 Due process of law, violation of, in organization proceedings ■ 18 Duty of water and di'ainage 26 E. Economy in water from rotation 70 El Paso County water improvement district organized for drainage 27 El Paso unit irrigation district, mention of 10 Election for annexation 78 For dissolution 85 Notice of, publication and posting 34 Organization, for irrigation district 13 To secure constitutional privilege 148 "With i-egard to exclusion 81 Elections and qualifications for voting lS-20 Qualification of voters 18-20 Elections, qualifications in regard to 169 Elections, State statutes : Arizona statutes ■ 88, 165 California statutes 92 Colorado statutes . 102 Idaho statutes 1 108 Nebraska statutes, organization 121 Nevada statutes, elections and electors 127 New Mexico statutes 131-132 South Dakota statutes, organization 144 Texas statutes, organization 145-146 Utah statutes, elections and electors 152 Washington statutes, organization 156- Wyoming statutes, organization 173 Wyoming statutes, electors 161 192 INDEX. Electors, qualifications for : Page. Arizona statutes 165 Montana statutes 117 Nevada statutes 127, 168 Oregon statutes 142 Washington statutes 156 AV.voiuing- statutes 173 Electric-power plants, Idaho statutes 113 Electric power, sale of, Oregon 144 Electrical-power works, authority for, California 165 Electrical power. {See also Powder development.) Elephant Butte irrigation district, organized for drainage 27 Elephant Butte unit irrigation district, mention 10 Emergenc.v ai)propriation, California statutes . 99 Eminent domain, power of 74 Eminent domain, power of board of directors as regards 20-21 Eminent domain. New Mexico statutes 1 134 Eminene domain, Oregon statutes , 74,143 Eminent domain, provision, Texas 149 Engineer, board of directors powers to appoint 21 Engineer, California, functions of 91, 96 Engineer Initiating organization, Utah 151 Engineer, preparation of plans by, Texas 147 Engineer, State, report with petition, Wyoming 162 Engineer, State, concurrence in formation of district 16-17 Engineer, State. {See also State engineer.) Engineering plans, Nebraska statute 120-121 Entered public land, control secured of 9 Entered pul)lic land in proposed irrigation district subject to State law__ 24-25 Entered public lands, liability of 23 Entire district liable for debts 1 57-5S Equalization of assessments : California statutes 97 Montana statutes 119 Nebraska statutes 122 . Oklahoma statutes 139-140 Oregon statutes 143 Texas statutes 146 Washington statutes 157 Equities, where found in case of loss 53 Errors to be disregarded in confirmation 49 Estoppel applies to assessment and tax sale 63 Estoppel involved in favor of organization 17-18 Evans, Charles R., Nevada, meni'ber Committee on Irrigation 2 Evidence of existence of irrigation district, Wyoming 162 Evidence of organization, Utah 153 Excess liabilities, Oklahoma 140 Executors, may sign for lands, Nebraska 129 Exclusion of lauds in general 79-80 High land 79 Proceedings for 80-81 Order by the board 81 Election when necessary 81 Seepage, on, account of 1 80 Exclusion of lands. State statutes : Arizona statutes 90 California statutes : 99 California statutes through mandamus 81 Idaho statutes 113 Montana statutes, not irrigable 167 Nebraska statutes 124 Nevada statutes 129-130 Oklahoma statutes 140-141 Oregon statutes 144 Texas statutes 146 Utah statutes 155 INDEX. 193 Exclusion of lands, State statutes — Continued. P«&e. Washington statutes 159 Wyoming statutes 163, 178 Exempted lands not taxed, Montana statutes IIS Exempted lands, North Dakota statutes 135 Exemption from taxation of distriet i)roporty, advantages of 9 Exemption of irrigable land at organization not allowed 13 Exemption of bonds from taxation, Utah _ 170 Exemption from iissessmeiits, Coloi'ado statutes 104 Exemption ot irrigated lands. New Mexico statutes 131 Exeniiition of irrigated lands. I'tah : 152 Exemption from taxation. New Mexico statutes,—' 133 Exemi)tion of lands, Wyoming 161 Expenses, State statutes: Idalio statutes, how defrayed 113 Nebraska statutes 123-124 Nevada statutes 129 New Mexico statutes 134 Oklahoma statutes 140 Texas statutes 149-150 Utah statutes 154, 170 Washington statutes 15S Wyoming statutes 163 F. Failures, few irrigation districts 9 Falll)rook case, quotation from 11-12 Farm Loan Board. (See Federal Farm Loan Board.) Farm loan, removal of statutory law 25-26 Farmer, irrigation, not an individualist 7 Farmers as individualists 7 Feasibility of project, certificate of 43-44 Feasibility of project mentioned 42 Feasibility of project to be reported on by State engineer 16-17 Federal farm loan act, how benefit secured 64 Federal Farm Loan Boai-d, decision as regards liens 25 Federal lands in irrigation districts 23-24 Federal service. {See Reclamation Service.) F'inal proof, taxable interest on, Montana 24 Financial policy of operation ; 74 Financial responsibility, advantages of, unified 53 Poinding of court, ^Montana statutes 116 First irrigation district law, Utah, enacted 11 Flat-rate assessment held valid 56-57 Flat rate, objection to assessing by 55 Foreclosure methods mentioned 65 Foreclosure of district liens, Idaho 167 Foreclosure proceedings, Utah 171 Form of bonds 37 Formation of irrigation districts 12-18 (Conclusiveness of organization 17-lS Hearing on organization 13 Inclusion of cities and towns in irrigation districts 15-16 Legal character and effect of proceedings 13-15 Organization election 13 I'etition 12-13 Railroad property 16 State engineer's concurrence in formation 16-17 State lands. Federal and ^ 16 Formation, Arizona irrigation district 87-88 Formation. (See also Organization.) Formation of organization, Montana statutes . , 116 Fort Lavamie- irrigation district, mention 10 Fraud, effect of. on confirmation 51 Fraud prevented by confirmation proceedings 47 100047—20 13 194 IXDEX. Page. Functions of board of directors 20-21 Funds, bond payment, Montana statutes lly Funds, interest and sinkin.u-, Texas 149 Funds, various. California statutes 99 Funds. (See uUo Expenses.) G. Gering unit irrigation district, mention of 10 Gray. Justice, on validity of conllrmation decree 50 Guardians may sign for lands, Nevada 129 H. Harlan, .Justice, on validity of confirmation decree 50 Harrison. Benjamin, counsel in Fallbrook case 11 Hayden, Carl, Arizona, member Committee on Irrigation 2 Hearing on annexation 78 Hearing on organizing an irrigation district 13 California statute 91 Montana statute _-_ 116 Texas statute 145 Utah statute 1.52 Washingt(m statute 172 Hearing. (8ce also Petition.) Hernandez, Benigno C, member Irrigation Committee 2 High lands assessed for drainage of low lands 30-31 High lands, charge for irrigation drainage of, in Idaho 30-82 Historical record of early irrigation district act 11 Home owners, small versus large ^ 19 House Committee on Irrigation of Arid Lands, list of members 2 Hudspeth, Claude, Texas, member Committee on Irrigation 2 I. Idaho statutes 107-114. 167 Annexation.^ '. 78, 113 Annual reports and statements 109-110 Assessments 55, 59-60, IKVlll Benefits assessed 48, 55 Bids and contract 113 Bond sales 110, 112-113 Boundaries 113-114 Carey Act, selection under 109 Carey Act, settlement under 109 Consolidaticm of districts 167, 48. 112 Contract with the United States .* 110 Dissolution and modification of boundaries 113-114, 167 Drainage benefits 31 Drainage 111-112 Drainage unity of irrigation iuid 26,28 Elections and electorate 108 Elections, registration fee 108 Exclusion of lands * 113 Exi)enses — how defrayed 113 High land, charge for drainage 30-32 Liabilities, excess 109 Liens, foreclosure of 167 Oflices, district lOS-109 Petition for organization 107-108 Plan of operations, general 16,110 Power plants, electric 73, 113 Public corporation idea 12 Registration '_ 108 Special assessments 111 State engineer, functions of 16,108,110 IISTDEX. 195 Idalio statutes — Continued. Page. State lands 114 Tax sales, delinquent 113 United States, contract with the 110 Voters, (inaliticatioiis of 19-20 Immaterial (letVcls in assessment 62 Jnmuiiiity Irom taxation of lands in California 40 Iiniiaii-ini;- olilipilion of contract, i»rotection of bondholders and . 40-41 In]i)erial Valley, si)ecial problems of 101 Improvements, necessity of provisions for local 75 Improvements not assessed in California, Nebraska, and Oklahoma 55 Improvement disti-ict i)i'ovisions, Nevada 76,77,128 Improvement districts, provision for Utah 171 Improvement disti'ict law chanj;es, Washington 158, 172 Improvement districts, Washington, plan for 76, 158 Improvements, subdistricts for .local 73-77 Imi)rovements within the main district, subdistricts for local 75-77 Necessity of provisions for local improvements 75 Statutory i)rovisious necessary 75-76 The Nevada i)rovision 76 The Washington provision 76 A comparison 77 Inchoate title no bar to entering into contract, Arizona 88 Inclusion of cities and towns in irrigation district 15-16 Inclusion of lands, State statutes: Nebraska statutes 124 Oklahoma statutes 140-141 C)regon statutes 144 Texas statutes 146 Utah statutes 155 Washington statutes 155-156, 158-159 Wyoming statutes 163 Indebtedness, adjustment on dissolution 85-87 Indebtedness not l)onded 45-47 Warrants 46-47 Indebtedness of irrigation districts 33^7 Bonded debts 34-45 Indebtedness not bonded 45—47 Indebtedness, previously incurred, law, regard to, unchanged 40 Indebtedness limitations, State statutes: Arizona statutes 88 Colorado statutes 102 ]Montana statutes 118 Nevada statutes 128 Oregon statutes, amount that can be incurred in 174 Texas statutes ■ 147 AVashington statutes 12, 158 Wyoming statutes 163 Indian Cove irrigation district case cited 23 Initiating organization, Utah 151 Initiating organization. (See also Organizations.) Insurance investment in bonds, Montana 120 Interest couiions on bonds issued 3.7 Interest on iniprovement warrants, Utah 171 Interest rate on assessment repayments, Oregon 170 Interest rates on bonds, Nevada 168 Interior. Secretary of. (Sec Secretary of Inferior.) Intercounty districts, organization of, Texas 149 Interdistrict cooperation and merger 81-84 Cooperative construction 82 Districts for interstate projects 82 California statute 82-83 Methods that of cooperation rather than corporate unity 82 Joint action in securing irrigation works 83 Merger of consolidation 83-84 Overhead or reservoir districts 81 Interstate district, California statute 93 196 INDEX. PagCi Interstate project districts, list of 82 Interstate projects, districts for 82-83- Methods that of cooperation ratlier than corporate unity 82 Tlie California statute 82-83 Interstate projects, provision for, Nevada 168 Interstate work, California statute for 82-83 Investment of bonds, Nebraska statute 125 Investment of sinking funds, Texas 151 Irrigation a novelty to English-speaking people 8- Irrigation as the fundamental institution i 7-8 Irrigation districts are public corporations 11-12, Irrigation district, corporate nature of 11 Irrigation districts, drainage by 26-33 Irrigation districts, formation or organization L_ 12-18. Conclusiveness of organization 17-18 Hearing on organization 13. Inclusion of cities and towns 15-16. Legal character and effect of proceedings 13-15 Organization election 13 Petition 12-13 Railroad property 16 State engineer's concurrence 16-17 State lands. Federal and 16 Irrigation district idea gaining favor . 10 Irrigation districts in operation 68-75- Irrigation districts, indebtedness of 33-47 Irrigation district law, constitutionality upheld 66-6T Irrigation district. (See District organization.) Irx'igation districts, list of on Reclamation Service projects 10 Irrigation districts, origin and nature of 10-12. Historical , 11 Corporate nature of a 11 Are public corporations . 11-12 Irrigation districts should be used for drainage 28 Irrigation districts, water supply of under Warren Act 22 Irrigation farmer not an individualist 7 Irrigation forces cooperation 54 Irrigation necessity, drainage an . 26 Irrigation of Arid Lands, committee on list of members 2 Irrigation plan, Nebraska statutes 120-121 Irrigation system, can not purchase by eminent domain in Texas 149> Irrigation, the public corporation as related to 7-10 J. Joint action in securing irrigation works 83- Joint construction of works, Texas 151 Judicial notice of existence of district, Arizona 88 Jurisdiction of county board as to establishment of boundaries 14-15 Jurisdiction of court In confirmation proceedings 48-49- K. Kansas statutes 114-115 Assessment and levy 115 Bonds 115 Cooperative construction not authorized 21 Critiei^'ni. indebtedness, Ixmndaries , ll.'i Distribution of w;iter ' 1 115 Offices 114 Organization . 114 Two or more counties involved 115 King, Will R., author of book 1 King Hill project, organization and method of contracting 22 Kinkaid, A'oses P.. chairman of Committee on Irrigation... 2 Klamath project, irrigation district, mention 10 Klamath project, an interstate one 82 INDEX. 197 L. Page, Land, price of, in early days 8 Lands assessable, discussion of 60 Lands. (Sec Exe]ni)tion : Inclusion.) Lands, Federal, in iri'i.ijjation district 23-24 Lands included in irri.uatiou district, decisions 14-15 Lane, Franklin K., on irrij^ation districts 10 Large districts, California statutes 101 Large landowners, California, early opposition of 13 Laws. State, regarding cooperatiuii willi ITnited States 21-23 Laws. (See st;itutes mider resjiective States.) Leadership in irrigation district idea, California, early credit for 11 Leases. California statute 93 Lease of in-igation system. ^Montana statutes 117-118 Lea.se of water to occupant oniitted, Utah • 170 Lease of water, assignment or, Utah 152-153 Ivease, use of water, Wyoming 173 Leasehold interests, assessment of 60 Leasing water to cities and towns perndtted 73-74 Legality of organization of irrigation district 17-18 Lessee, payments ()f assessments by 61 Levee district assessment in Texas 56 Levees authorized to be constructed, Arizona 88 Levy and assessment of charges 54-65 Levy, State statutes : California statute assessment 97 Colorado statutes 104 INIontana statutes, annual expense 119 Nevada statutes, collection . 129 Nebraska statutes, equalization and 122 North Dakota statutes, collection 136 Texas, requirements for 148-149 Utah, rates of 154 Washington statutes 157 Wyoming statutes 162-163 Liability of district as a whole, relaxation from 57-58 Arizona provision for discharge of obligation 57 Dakota provisions 58 Defect in Montana act 57-58 Release from debt for refunding bonds, Colorado 58 Liability for official negligence 71 Liabilities, excess, Idaho statute 109 Liability of district officers, Montana statutes 120 Liability for negligence, North Dakota statutes 137 Liabilities, excess, Oklahoma 140 Liability for negligence, Oklahoma 141 Lien, extinguishment of, Colorado statutes 106 Liens in irrigation district and Federal Farm Loan Board 25 Lien, nature of irrigation district 63 Lien of bonds, Montana statutes 119 Lien on land, bonds as a, W^ashington statute 156-157 laens. Reclamation Service ^ 64 Limitation of powers in issuing bonds 33-34 Limitation of bonded indebtedness 45-46 Ijimitation of indebtedness, ^Montana statutes 118 Washington statute 158 Wyonung statute 163 Limitation of indebtedness. (See Indebtedness.) Limitations, statutory, protecting organization 17-18 Liquidation required, Colorado statutes 106 Litigation, statutory limit on time for 17-18 Little, E. C, member Irrigation Committee 2 Loan of money by United States to district 21 Loaning money, Raker bill would aid 26 Loans, removal of statutory bar to 25-26 Loans. (See Federal Farm Loan Board.) 198 Il\^DFA'. Page. Local improvements within the main district, snlxlistricts for 75-77 Necessity for provisions for local improvements 75 Statutory provisions necessary 75-76 The Nevada provision 76 The Washington pi'ovision 76-77 A comparison 77 Local improvements, Washington, provision for 7G-77 Local improvements. (See also Improvements.) Lowlands, may high lands be assessed for drainage of , 30 M. Majority, New Mexico rules as to 13,34 Majority required in bond election 34 Majority, support of, essential at organization election 18 Mandamus for failure to access 62 Mandamus with regard to exclusion of land 81 Mandamus to comi)el district officers to deliver water 71 Mapleton unit irrigation district, mention of 10 Marines, preference to, Oregon 174 IMass meetings — a suggestion 75 Maturity of bonds, Montana statutes 118 Maturity, retirement of bonds before 44 Meetings of board of directors public 21 Merger, interdistrict cooperation and 81-84 Cooperative construction 82 Districts for interstate projects 82 California statute 82-83 Methods tliat of cooperation rather than corporate unity ^ 82 .Toint action in securing irrigation worlvs 83 Merger or consolidation 83-84 Overhead or reservoir districts 81 Merger or con.solidation, necessity for 83 Merger plan, Nevada 83-84 Merger plan. Oregon statutes 83, 144 Merger proposition, California 84 Minidoka project, irrigation district, mention 10 IMinority. exercise of compulsion on, in public corporaton 7,9 Mississippi Valley drainage, statutes similar to, enacted 27 Modesto irrigation district, origin ^ 90 Montana, statutes of 115-120, 167-168 Area, change in assessable 117,167 Assessments 119, 167 Assessments, defect in 57 Assessments, equalization of 119 Board of coommissioners . 116 Bonds, issue and contii'mation 118 Bonds, as investments 120 Bonds, lien of, and funds for 119 Bonds, registration of 118 Boundaries, changes of . 117,167 Construction work 116-117 Contract limitations in 46 Contract with the United States 117 Cooperation with the United States 167 Collections and disbursements 119 Court finding conclusive 116 Dissolution petition 167 Electors, qualifications of 117 Exchision of lands 167 Exempted lands not taxed 118 Final-proof decision 24 Formation of irrigation disti'ict 116 Hearing on organization petition 116 Indebtedness limitations US Lease of irrigation systems 117-118 INDEX. 199 Moiilniiii. si.itutes of — Contiiuied. Page. Levy, iimuuil 119 Lien on bonds 119 Liitl)ilit.v of district officers 120 NoniJ nations 117 I'ui'ixjses of irrigation district 116 Ki.ulU of way over State lands ~ 120 Tax sales, delin(inent : 120 Watei- ri.iilits and aitporlionnient 118 Water rights, lands Jiaving prior ^ 116 Water sul)Stitution 118 INIortgage. {Sec Lien.) IVInngei-, Jnslice, Colorado, ojiinion on reassessment 59 IMunicipal coritoration, objection to term • 12 I\Innicii»iil idea applied to irrigation ._ 8 Mutnal ditch company, passing of the 8 N. Nature of irrigation districts : Identical legal character with di-ainage district 11 Settled by United States Supreme Court 11 M'lien in not strictly nunucipal coiiDorations 12 Nebraska statutes 120-126, 168 Annual report 121 Assessment, continued 126 Assessment 122 Assess, result of failure to 123 Bonds 34,122 Bonds, as investments 125 Bonds, registi'ation of : 125 Boundaries, change of 124 Contract with the United States 125-126 Collection of taxes . 122, 168 Confirmation . 124—125 Consti'uction of works 123 T)rainagp 124 E)issolution 126 Distribution of water 121 Election, organization 121 Equalization and levy 122 Exclusion of land .' 124 Improvements not assessed 55,56 Inclusion of land 124 Officers 121 Petition for formation 120 Owiiershi]) of hind required of A'oters ^ 19 Plan, ii'rigation - 120-121 Prioritv of obligations 124 Public lands. Federal 123 School funds, investment of 125 Punning expenses 123-124 Treasurer, duties of 168 Sale of property * 126 Special assessments 124 Status of district property 121 Taxes, delinquent ^^ 123 Taxes, refund of 123 Warrant issue, limits upon 123 United States, contract with the 125-126 Water right, transfer of : : 121 Water sui)ply 125 Neglect of assessment, Califorina statutes 9T-9S Neglect of duty by oflicers, Washington statute 157 Negligence, lial)ility for ollicial 71,141 Negligence, liability foi'. North I)akota statutes 137 Negotiability of l)onds, asregards form 37 200 INDEX. Page. Xegotialiility of district bonds 38-39 Negotiability of warrants of irrigation district 47 Nevada statutes 127-130, 168 Annexation 129 Assessments 55, 128, 168 Assessments payment by State 61 Bonds 129, 168 Bonds, interest on 168 Confirmation ^ 128 Consent of the United States to exclusion 130 Consolidation of districts 130 Construction contracts 129 Dissolution, division, exclusion 130 Drainage worlv, apportionment of benefit 168 Electors and elections 127,168 Exclusion of lands 129-130 Expenses, organization and maintenance 129 Interstate projects 168 Improvement provisions, local 76, 128 Indebtedness, limitations on 128 Levy and collection 129 Officers 127-128 Merger plan 83-84 Petition 127 Petition, signers of - — 129 Purposes 127 Plan of operations 128 Qualifications of electors 19,127,168 Reports and statements 129 State lands 130 State payments 61 Tax sale, delinquent 129 United States, consent of 130 United States, cooperation with 168 Newlands in'o.iect (formerly Truckee-Carson project) irrigation district, mention of 10 Newlands project (formrely Truckee-Carson project) irrigation district organized for drainage 27 New Mexico statutes 130-135, 168-169 Assessments '. 133-134 Assessments, determination of 133 Bonds - 132-133,169 Bonds, refunding 169 Boundaries, change of 134 Boundaries, divisions ■ 131 Cooperation with United States 168 Collections and disbursements 134 Confirmation • 48, 135 Conununit.v ditches 131 Cooperation with the United Stcites 132 Dissolution 134-135 Distribution of water 1 133 Drainage assessments 29. 134. 169 Electors and elections 131-132. 169 Imminent domain 1 134 Exemption of irrigated lands 131 Exemption from taxation 133 Expenses, general 134 Judicial notice 133 Majority required, including definition 13,34 Organization petition : 130. 169 Power development ■ 73. 168 Powers, incidental 131 Purposes 130-131 Publication : 131 INDEX. 201 Xew Mexico .statures — (Vnitiiiued. Page. Seepaj^e hiiuls nor raxeil J69 iSpanish law and notices in 131 Taxation, exemption from 133 Ignited States, conti'act witli 168 Water supjily ajiproved liy State engineer— l 1,32 Nonniiations, California statutes 92 .Montana statutes _. 117 Noidrrigalile lands lield assessable . 60 Nonii-rigaltle land not included in irrigation district 1.5 Nonirrifiahle. {See also Exclusion of lands.) IN'onpaynient iind denial of service 71 Nonresident voters, (lualitications 20 North Dakota statutes 135-138 Assessment 136 Assessment, in proportion to benefit 55 Bonds 136 Boundaries and subdivisions 135-136 Boundaries, changes of 138 Contirmation proceedings 137 Contract and cooperation with United States 137 Contract not authorized by voters 22 Dissolution 138 Drainage 137 Exempted lands 135 Lands exempted ^ 135 Levy and collection 136 Negligence, liability for 137 Petition for organization 135 Plans .submitted to State engineer 136 Priority of obligations 136-137 Refund when lands not benefited 137 Release of lands not benefited 136 Registration of bonds 137 Special assessments 137 ' State engineer, report of 135 Warrants ^ 1 13G NTorth I'latte pro.1ect an interstate one 82 North Platte project, irrigation district, adjacent to 10, 22 NIotice by publication, for irrigation district 13-14 Notice of organization hearing by publication 13 Notice, judicial, New Mexico statutes '. 133 O. 'Officers of district organization, functions 20-21 The board of directors and its functions 20-21 Other district officers 21 'Officers, State statutes : California statutes 92 Idaho statutes 108-109 Kan.sas statutes 114 Nebra.ska statutes 121 Nevada statutes 127-128 Oregon statutes 142 'Okanogan project irrigation district, mention of 10 'Oklahoma statutes 138-141 Assessor and treasurer 139 Bonds 139 Boundaries, changes of 141 Borrow money, power to 140 Confirmation proceedings 141 Construction work 139 Dissolution 141 Distribution of water ■_ 138-139 Drainage 140 Equalization and levy 139-140 202 INDEX. Oklahoma statutes — Continued. Page. Improvements not assessed iu 55 Expenses, construction and other ^ 140 Inclusion and exclusion 140-141 Liabilities, excess 140 Negligence, liability for 141 Organization 138 I'ublicity of meeting , 139 Refunding bonds 141 Ilefiind where lands not benefit 140 Registration of bonds 141 Si)ecial assessments 140 Tax sales provisions 140 Warrants, issuance of 140 Operation by the United States . 74-75 Operation, irrigation districts in 68-75 " Beneficial use " rule preferable 70 Carey act projects 75 California rule in distribution 70 Denial of service for nonpayment 71 I)istril)ution of water 69-70' r>istrict responsil)ility. theoi-y 71 Districts can not adjudicate water rights 69 Eminent domain, power of 74 Financial policy 74 Liability for othcial negligence ' 71 Mass meetings, a suggestion 75 Nonjudicial classitication of rights 69 Official lialMlity 71-72 Operation l)y the United States 74-75 Power development 72-7S Relations with cities 73-74 Rotation in service 70-71 Special privileges : 74 Transfer of water in case of subirrigation 72 Transfer, tlie privilege of 72 Vested rights 68 Water right 68 Order for exclusion of lands ' 81 Oregon Irrigation Commission 1'''4 Oregon statutes 142-144. 169-170, 174 Assessments l"^-^' ^'^^ Bonds - 142-143. 170 P>(>nds. issuajice by implication So Bonds as an investment m 4i Bondholders, security of • i^l Certificates of indebtedness 1^4 Certification of district bonds ■■ 1<^ Certification of feasiliility 43 Commission, irrigation Tn~T7o"T.i i i^n Confirmation 48. 143-144, 170 Constitutional amendment 1'^ Construction plans j^- Dissolution ' }.\.^ Drainage work .^ Electors, qualifiations of |.^ Eminent domain ' ' .q Equalization -. ,\ Inclusion and exclusion ^„. Indebtedness that may be incurred |' Interest rate on assessment repayment . ^^ ^^^ Merger IIIII_ ' 142 Officers -j^42 Petition for organization --g Power development -^j'^ Red Cross nurses, preference IxYDKX. 203 Ort'iLioii statutes — rontiimcd. Page. Sale of lands imt needed _• 170 Sale of water or power 144, 170 Soldiers, sailors, and marines, l>refereuce 174 Tax sales, delin(iuent ; : 143 Voting;-, prcjierty ((nalitieations for 20 \\ arrants. liuiil of outstanding 47 <,)ri;anization of irri^iaiion district Ji;-18 Conclusiveness of orjianization . — .-^ 17-18 Hearinj;: on orjianization 13 Inclusion of cities and towns l.Vlfi ' Le,i:al character and effect of proceedings 13-ir> Oi'ganization election 13 retition 12-13 Railroad property : IG State engineer's concurrence 16-17 State lands. Federal and 16 Organization, district, not a panacea . 9-10 Organization election, rules as to majority required 13 Organization, evidence of, Utah 153 Organization hearing for an irrigation district 13 Organization, iri-igation district, legality of 17-18 Organization petition for an irrigation district 12-13 Organization, State statutes: California statutes 90-91 Colorado statutes 102 Kansas statutes , 114 Montana statutes 116 New Mexico statutes 130-131 North Dakota statutes 135 Oklahoma statutes ."^ 138 South Dakota statutes 144 Texas statutes , 145-146 Utah statutes 153 A'S'ashington statutes 155 Wyoming statutes 161, 173 Organization. (»SVe also Election; Petition.) Origin and nature of irrigation districts 10-12 Corporate nature of an irrigation district 11 Historical , 11 Irrigation districts are public corporations 11-12 Overflowed land, drainage provided in California 28 Overhead or resei-voir districts . 82 P. Panacea, district organization not a 9 Payment of assessments, Washington statute 157 Payments upon admission 78-79 Personal property assessed, Texas 1 145-146 Assessment upheld in Texas 55, 56 Taxes, delinquent, Texas 147 Personal service not required in organization 13-14 Petition for an irrigation district - 12-13 Petition for dissolution 85 Petition, report on, by State engineer 16 Petition, organization, State statutes : California statutes 13, 94r-95 Colorado statutes 102 Idaho statutes 107-108 Nebraska statutes 120 Nevada statutes 127 New Mexico statutes 130,169 North Dakota statutes 135 Oregon statutes 142 Texas statutes 145 204 INDEX. Petition, organization, State statutes — Continued. Page. Utali statutes 152 Wasliingtou statutes 155 Wyoming statutes : 161-2 Plan of operation, Nevada statutes 128 Plans of proposed woriis, Texas statutes 147 Plans, report on by State engineer 16 Plans submitted to engineer, Nortli Dakota 136 Polls, hours open at an organization election 14 Power-development laws 72-73 Power development. State statutes : California statutes, authority for 73, 93, 165 Idaho statutes 73, 113 New Mexico statutes 73, 168 Oregon statutes 73 Oregon statutes, sale of power 144 Wasliington statutes 73 Precincts for election established 18 Preferences to soldiers, sailors, and marines, Oregon 174 Prior water rights, adjudication of 69 Priority of obligation, Nebraska statutes 124 Priority of obligations, North Dakota statutes -.- 136-137 Priority of public assessment over private lands Private corporation, passing of the 8 Procedure, statutory, in contirmation 48 Pi-oceedings in rem, for organization 13-14 Proceedings, organization, legal character and effect of 13-14 Profit, none for promotion : 9 Promotion expenses eliminated in district organization 9 Property qualification for voting 18-19 Property qualification for voting, Oregon 20 Protection of IxMidholders, dissolution, California statute 100 Protection of bondholders, exclusion, California statute !)9 Protest against annexation 78 Powers of purcliase of irrigation district 33 Power to borrow money, Oklalioma 140 Power to issue bonds by implication 35 Power to issue bonds prescribed 37 Powers of irrigation district defined by courts, California 33-34 Powers of board, Colorado statute 102 Powers of districts. New Mexico statute 131 Powers of directors', Texas 146 Powers of directors, Utah 152 Public corporation, advantages of 8 Public corporation as related to irrigation 7-10 Advantages of district organization 8-9 District organization not a panacea 9-10 Experience of the Federal Government 10 Growth of the jmblic corporation idea 8 Irrigation as the fundamental institution 7-8 Irrigation farmer not individualist 7 Projects not Federal 10 Public corporation. (See also Corporation.) Public corporation idea, growth of, for irrigation S Public corporation idea in Idaho 12 Public corporations), irrigation carried on by 7 Public corporations, irrigation districts are 11-12 Public corporation principle first applied to irrigation 11 Public lands, assessment, Nebraska statutes 123 Public lands, control secured of entered 9 Public ownership, advantages; of in irrigation district . 7 Publication, delinquency list, Washington 158 Publication, jurisdiction secured by 9 Publication, notice of organization hearing by 13-14 Publication notice in bond election 34 Publicity of meetings, Oklahoma statutes 139 IIS^DEX. 205 Page. Purpose of organization, Montana statutes 110 Purpose of organization, Wasliington statutes 155 Purpose of organization, Wyoming statutes 161 Q. Qualillcation of vuti'rs in various States discusseil 18-20 Qualifications of voters, by States : California district irrigation law : 20 Idaho district act as regards 10-20 Montana statutes 117 Nebraska statutes, land ownership required 19 Nevada statutes 19 Oregon statutes 142 Nevada statutes 127, 168 Oregon court decision regarding property 20 Utah statutes, per acre-foot of water 19 Quasi corporation, irrigation district is a 71 Quasi nninicipa! character of irrigation district corporaton_ 11 R. Railroad crossing, California statute 96 Railroad lauds, assessment of, upheld 60 Railroad property, inclusion in irrigation districts . 16 Raker, Jolm E., introduced bill to relieve lands from reservation of lien 25 Raker bill, reference to advantages of 20 Real and personal property assessed, Texas 55, 56 Real property assessments mentioned 55 Real property liable for bonds 39 Reassessment of lands upheld on appeal, Colorado 58-59 Reassessment of valuable tracts should not be necessary 5;:i Recall applicable to irrigation district, Arizona 88 Recall of district officers, provision for 72 Recall of district officers valid 68 Recall, statutes on, California 92 Reclamation act and Smith Act 25 Reclamation act, cooperation under, Montana statute 107 Reclamation act, construction by United States, under, authorized 21 Reclamation extension act, mention and date 27 Reclamation extension act on delinquency 71 Reclamation projects, drainage experience on : 27 Reclamation projects, reserved lien on patented lands is not necessary 25 Reclamation Service holds that law to construct irrigation works covers drainage also 29 Reclamation Service, irrigation districts under, list of '. 10 Reclamation Service liens 64 Recording of change in boundaries • 78 Red Cross nurses, preferences to, Oregon statutes 174 Redemption after tax sale, California statutes 98 Redemption of bonds. Washington statutes 158 Redemption of property sold for taxes, Washington 158 Refund when lands not benefited, North Dakota statutes 137 Refund when lands not benefited, Oklahoma-- - 140 Refunding bonds 44-45 Refunding bonds, State statutes : California statutes 166 Colorado statutes 103 Colorado statutes, release from debt 58 New Mexico statutes 169 Oklahoma statutes 141 Texas statutes 151 Registration and certification of bonds 42-43 Registration for voting dispensed with 18 Registration of bonds 9 206 I^s^DEX. Registration of l)onds, State statutes : Page. Idaho statutes 108 Montana statutes 118 Nebraslva stiitutes 125 North Dakota statutes 137 Olvlalionia statutes ' 141 Relaxation from liability of district as a whole 57-58 Arizona provisions 58 Colorado release from debt 58 Dakota pi-ovisions 58 Montana act, defect of 57-58 Release from debt for refunding bonds, Colorado 58 Release of lands in Arizona on payment 58 Release of lands on payment of assessment in advance to be avoided 52 Release of lands, when no longer benefited, North Dakota statutes 136 Repayment of bonds mandatory 37-38 Reports, annual, California statutes 92 Reports, annual, Nebraska statutes 121 Reports and statements, Nevada statutes 129 Report on plans by State engineer ^ 16 Reservoir districts, overhead or 82 Residence qualification for voting 18-19 Responsibilities of district and creditors not joint 52 Responsibility of district theory 71 Retirement of bonds before maturity 44 Revenue collection, two instruments of 54 Revenue, general provisions 52-54 A tendency to be avoided 52 A word on cooperation 53-54 Advantages to district of unified responsibility 53 Importance as regards drainage 53 Joint responsilulity of district and creditors would be fatal 52 Provisions for revenue fundamental 52 Two instruments for revenue collection — • 54 Where the equities are to be found in case of loss 53 Revenue in general 52 Assessment and levy 54-65 General discussion 52-54 Tolls and charges 65-66 Revenue for operation and maintenance, Texas statutes 149-150 Review of assessments by State courts, decision 62 Review of facts in confirmation 49 Reynolds, Dan F.. clerk, Committee on Irrigation 2 Right of way, Montana statutes 120 Rio Grande project an interstate one 82 Irrigation district, mention of 10 Irrigation district, organized for drainage 27 Riparian rights. Innds with, included 15 Riparian rights, survival of doctrine of 8 Ross, Justice, constitutionality, decision of ^ 66 Rotation of water deliveries 70-71 S,' Sacramento Valley, mention of drainage in 28 Sailors, preference to. Oregon statute 17*4 Salaries, Ijonds not to be issued for — i 3a Sale of bonds t^ Sale of lands not needed, Oregon statute l'<2 Sale of irrigation system. Colorado statutes 107 Sale of projierty, Nel)raska statutes 126 Sale of water or electric power. Oregon statute 144 San Joaquin Valley, mention of drainage in ^28 School compared to irrigation district 'i-^ School fund.s, irrigation bonds as investment in 9 School funds, investment of, Nebraska statutes 125 School lands, Colorado provision for 60-61 IXDEX. 207 Page. :8(.'li(>()l lands, ]ia,viiieiit of assessnieiit by 60 ►Scliool lands, sal.' of, South Dakota 60,14-1 School tax ill itroportion to nnmbtn- of children, discussed 10 Seal of district to bo on bonds 37 Secretary, Ixiard of directors, power to appoint 21 Secretary of Interior authorized to coutract under Warren Act 22, 23 Exclusion in writinji' Ity : . ' 80 May siiiii a petition for organization. Nevada - 129 Mer.iier by written consent of '"^-l \yrilten consent of, to change boundaries 78 Security behind district bonds 39-40 Leswer 19 SpringTille unit irrigation district, mention 10 South Dakota statutes 144-14.5 Benefit assessments 5.5 Bonds, interest and maturity 145 Contract, authorization of 22 Organization and election l-t-l Sale of school lands 60,144 Stanislaus County, lands included in irrigation district ^ 15 State courts uphold confirmation decree 50-51 State engineer : Concurrence in formation of district 16-17 Submission of plans and petition to 16 Supervision by, now generally required by 21 To determine feasibility 42 State engineer. State statutes : California, functions 91 Idaho statutes 16, 108, 110 New Mexico statutes, approval of water supply 132 North Dakota statutes 135 Washington statutes, hearings 1'''2 Wyoming statutes, report with jietition 162 State laws aid cooperation with United States 9 State laws and cooperation witli United States 21-23 State lands : Assessment of 60-61 Leasehold interests 60 Payment of assessments by State 60-61 PaVment of assessments by purchaser or lessee ^ 61 208 IXDEX. state lands, State statutes : Page. Colorado statute : 103 Idaho statutes, assessment 114 Navada statutes 130 Utah statutes, inclusion of 170-171 Washington statutes 171 State statutes, outline of 87-173 Statutory limitation attaches on irrigation district organization 17-18 Storage of water, provisions for, California 165 Storage worlvs for u district 82 Stoutemyer, B. E., statements on Raker bill 26 Strawberry Valley project, irrigation districts in, mention 10 Subdistricts for local improvements 75-77 Necessity for provisions for local improvements 75 Statutory provisions necessary 75-76 The Nevada provision-- 76 The Washington provision 76-77 A comparison 77 Subdivisions, boundaries and, North Dakota statutes 135-136 Subirrigated lands, L)ak(tta act for relief of 58 Subirrigiition and transfer of water 72 Substitution of water, Montana statutes 118 Summers, John W., member Irrigation Committee 2 Sun River project irrigation district, mention of 10 Sunnyside unit irrigation district, mention of 10 Supply and drainage systems are irrigation works 26 Supreme Court doulitful of validity of confirmation decree 49-50 Survey, and allotment of water, Utah statute 152 Surveys, board of directors has power to make 21 Swamp land, drainage in California provided 28 T. Tax foreclosure, delinquent. Texas 146-147 Tax liens on public lands, provided for in irrigation districts 25 Tax sales of entered lands in irrigation districts provided fot 25 Tax sales, delinquent, State statutes : California statutes 98 Colorado statutes 104-105 Idaho statutes 113 Montana statutes 120 Nebraska statutes 123 Nevada statutes 129 Nevada statutes, former law t. 61 Oklahoma statutes 140 Oregon statutes 1 143 Washington statutes ._ 158 Taxable interest in land and proof 24 Taxation, enjoyment of power of by public corporation 7 Taxation exemption of district property 9 California statute, bonds 40 New Mexico statute 133 Special privilege 74 Utah statute, bonds 170 Taxation in proportion to wealtli. number of children, etc., discussed 19 Taxation, security of bonds available through • 40 Taxation, railroad property included in irrigation districts 16 Taxation. {See also Assessment.) Taxes, advantages of machinery for collection of- 9 Collector of, provided 21 Collection of, Nebraska statute 122 Collection of, Texas statute 146 Collection of district, Utah 154 Payment by State 60 Refund of, Nebraska statute 123 Special, to redeem refunding bonds 45 Taylor, Edward T., Colorado, member committee on irrigation 2: I INDEX. 209 Page. Terms of Ixuids, ("jilifornia statutes 95 TexMs statutes, outline of 145-151 Appeal on i)etition 145 Aiuiexation of lands 149 Assessments ^ 59, 146 Assessments, additional 150 Assessments, ju'i-sonal jiroperty 55,56,145 Assessor, duty of . 146 Auditor for depository accounts , 151 Bonds, certification of 148 Bonds, sale or excliaufre of 148 Bonds. United States contracts and 147 Boundaries to bi' marked ; 146 Cemetery, prohibition of eminent domain 149 Contirmation 148 Conservation districts . 147 Construction work 149 Constitutional amendment 147 Cooiieration with the United States 145-146 Depository of money 151 Dissolution 149 Districts in unorganized counties 151 Districts lying in two or more counties 149 Drainage ditches , 151 Election and electors 145 Election for constitutional privilege 148 Eminent domain 14!) Engineer, preparation of plans 147 Equalization of assessments . 149-150 Exclusion of lands : • 146 Exemption, assessment 54 Expenses, operation and maintenance 149-150 Funds 149 Hearing on petition 145 Inclusion of lands 146 Indelitedness, limitation of ^ 147 Intercounty districts, organization 149 Joint construction work 151 Levy . 148-149 Organization election 145-146 Plans of jiroposed worlds 1 147 Fei-sonal proi^erty assessment 147 Petition for organization 145 Powers of directors 146 Purposes 145 Refunding bonds 151 Rental chai-ges, contract for 150 Revenue for operation and maintenance 149-150 Sinking fund investment 151 Taxes, collection of 146-147 Taxes, foi-eclosure. delinquent 146-147 Water requirements 70 Water right, transfer of 151 Water usei*, payment regulation 150 Thompson, Charles J.. Ohio, member irrigation connnittee 2 Thompson, J. M., of Idaho, on Raker bill l 26 Tieton unit, irrigation district, mention of 10 Title, examination of. not im])ortant ._ 9 Titles, relation of irrigation distiict liens to 63-64 Tolls and charges 65-66 California statutes 99 Colorado statutes 105 Town lots. California, law as to inclusion of 15 Towns within irrigation districts, inclusion of 15-16 100047—20 14 210 INDEX. Page. Transfer of water from owner 72 Transfer of water in case of subirrigation 72 Transfer of water right, Nebraska statute 121 Transfer of water right, Texas statute 151 Transfer of water rights. (See Water rights.) Treasurer, assessor and, Oklahoma statute 139 Treasurer, district, mention of 21 Treasurer, duties of mentioned, Nebraska ; 168 Treasursr of county and district. Wyoming 163 Tregea decision on confirmation proceedings 49, 51 Truckee-Carson irrigation district organized for drainage 27 Truckee-Carson project, mention of irrigation district on. (See New- lands) 10 Trustee, officers of irrigation district, as 41^2 U. Umatilla project irrigation district, mention of 10 Unentered public lands, assessments accumulate against 9 Unentered public lauds In proposed irrigation district subject to State laws 24-25 Unified financial responsibility, advantages 53 United States, cooperation 21-26 Additional congressional action desirable : 25 Congressional act in favor of district 24-25 Federal lands in irrigation district 23-24 Provision in State laws 21-23 Statutory bar to farm loans should be removed 25-26 United States cooperation with States : California statutes-' 96-97 Colorado statutes 166 Idaho statutes 110 Montana statutes 1 167 Nebraska statutes 125-126 Nevada statutes 168 Nevada, consent of 130 New Mexico statutes 132, 168 Texas statutes 145, 146 Texas statutes, contract to enforce rental charges Wyoming statutes 172-173 United States, operation by L . 74—75 Unity of irrigation and drainage works, Idaho decision . 26 Unlawful purposes, bond issue, discussion of 35-37 Unorganized counties, organization of districts in, Texas 151 Unpatented lands, in irrigation district, hamper operations 23 Unpatented lands not assessable in irrigation district 24 Utah, statutes of 151-155, 170-171 Annual assessments 153-154 Assessment for improvements 171 Assessment on basis of water used .58 Assignment or lease of water . 152-153 Bonds, issue and sale . 1.53 Bonds, exemption taxation 170 Boundaries, changes in 170 Collection of taxes 154 Confirmation 153 Dissolution 155, 171 Elections and electors ^ 1.52 Engineer initiating organization 151 Exemption of irrigated lands 1.52 Exclusion of lands 155 Expen^es, general 154,170 First to enact irrigation district law 11 Foreclosure proceedings 171 Hearing on petition 152 INDEX. 211 Utah, statutes of — Continued. Page- Improvement districts 1 171 Inclusion of lands loH Lease of water 152-153,170 Levy, rates of 154 Organizaiion, evidence of 153 Orfijniizlng, two methods of 151 IVtition, organization ; 152 Powers of board of directors 152 Public right to appropriate water 155 Pui'poses 151 State lands 170-171 Survey, water and allotment 152 Taxation exemption of bonds 170 Voting qualifications based on water used 19 Warrants, issuance of 170, 171 Water as basis of assessment 55 Water, rule for allotting 70 Water right appropriation suspended 155 Water rights, transfer of 152, 170 V. Validation of bonds discussed 36-37 Validity of assessment, when may be raised 61-62 Confirmation proceedings 49 Debts secured by publication -9 Issues of irrigation district bonds 38 Organization of irrigation districts 17-18 Vested rights, improvement of 68 Voters, qualification of 18-20 Voters. {See also Qualifications of voters.) Voting power equal in most States 19 W. Warrants for claims, how issued 46-47 Warrants of irrigation districts not negotiable 47 Warrants, State statutes : Colorado statutes 105 Nabraska statutes, limits upon issue 123 North Dakota statutes 136 Oklahoma statutes, issuance of 140 Oregon, limit of outstanding 47 Utah, issuance of revised 170-171 Wyoming, receivable for fund taxes 173 Warren act. contracts for water mentioned 22 Warren act, power to contract under 23 Washington, statutes" of State of 155-160,171-172 Advertising' for construction work 158 Assessments, benefit 55, 157 Bids for construction work : 158 Bonds a lien on the land 156-157 Bond issue and sale , 156 Bond or contract election 150 Botmdaries, changing of . 158-159, 172 Condemnation proceedings 156, 171-172 C(»nflrniation 159 Consolidation of districts ! 172 Construction pi-ovisions as to advertisement 158 l>issolution. outstanding bonds 159-160 Dissolution, no outstanding bonds 159 Electors, qualifications of 156 Election hearing and regulations 172 Equalization of assessments 157 Exclusion of lands , 159 Expenses, general 158 212 INDEX. Washingoii, statutes of State of — Coutiimed. Page. In(lel)te Tax sale 158 Water, Utah rule of allotting 70 Water apporti(mment, Wyonung 162 Water as hasis of assessment in Utah 55 Water requirements. Texas rule as to 70 Water right, hrief statement of _^ . 68 Bonds, lien on 39 Certificates, exchange of honds for 36-37 Districts can not adjudicate I 36-37 AVater rights, State statutes : Alontana statutes, ai)i)oi'tionment 118 Montana statutes, lands having prior 116 Nehraska statutes, transfer of 121 Texas, transfer of 151 Utah, appropriation suspended 155 L^tah, transfer of ^__ '_ 170 Water supply and annexation L 79 AVater supply apin-oval hy State engineer, New Mexico statute 132 Water supply regulations, Nehraska statute 125 AVater survey and allottment. Utah 152,170 AVater user pa.vnient ivgnlations, Texas 150 AVater users' association, districts take place of 22 AA^ater users' association, liens discharged 6-4 AVater users' association, operation «»f project hy 74 AVelling. Milton H.. Utah, memher Connnittee on Irrigation 2 AVillcocks, Sii- William, on cooi)cration . o4 AVilliston project, irrigation district, mention 10 Wright Act. mention of ^ 11. 12 AVright Act, mention of, in California decision 33,34 AA'right Act, mention of validity of honds 38 AVright-Bridgford Act, mention of 90 AVyoming, outline of statutes of State of 160-164,172-173 Assessment and levy 162-163 Assign or lease water 173 Bonds 162 Carey Act lands 161 Confirmation proceedings 164 Contracts, authorization of ^ 162 Cooperation with United States 21,172 Dissolution 164 Drainage work, cooperative 173 Electors and elections _ 161, 173 Exclusion of lands 163,173 Evidence of legal existence 162 Expenses, general 163 Inclusion of lands 163 Indehtedness, linjitation on 163 INDEX. 213 W.V(UiiinjLr, out line oi' slaluit's oT Stale oi' — Continued. Page. Lands (>xeni|)I(Ml Kil Lease, u.s(> of watei- . . IT;-? Petilion, action on KVJ Petition J'oi- oi';L;;anization 161 l'ni'])()ses ol' organization 161 Report of Stale engineer 162 Tax sale certiticates, iirovision.s l 178 Slate en.^ineer, report of 162 Treasurer of' county and district , 163 AVarrants, receivable for taxes 173 Water ap]>nrtioned jiro rata 162 Y. Yakima iiroject. iiriyation district adjacent to lU. 22 Yuma ])rojt''l -'in interstate one 82 o UCSOUTHFRNRMM <■'■.■ '"JTY AA 000 604 292 3 Ills r-m lit i :JlP i*.,l ¥} M'.'>' ',l''i't H';:«!, 'k*?^ B'f vf> «s«lii.vj r.•^^V\^:'^;■tL;■',^: ■i;.i;-"\r.;'t.. fs'^v''. t^i;S(^^'^^i:§^•vli■^!^ IV,, 'V ^ fitW.«yf: m0: