729 C2A5 A A = -- ■ A^ ~ Wi \ o B =r cz I m 33 | ! 2 1 = o ~i - ' ■ ^^^ ( — 9 8 ■^^— ' — "" 1 9 ■ — > — — -< 2 5 =TT- T> 9 m — o ^^™ i — I — —* 1 — -< 4 " California Laws. Statutes, etc, District irrigation Laws of California THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES AXJ^ w < DISTRICT IRRIGATION LAWS 1 the control of any Court. Evidence that lots in a city included in an irrigation district were not benefited, is not competent in a petition to confirm the proceedings of the Board of Directors in issu- ing bonds. Evidence that city was included in irrigation district for the purpose of carrying out the scheme of organization against the wishes of the farmers outside the city, is not com- petent in a petition to confirm the proceedings of the Board in issuing bonds, unless the facts constituting the fraud have been fully pleaded. Confirmation of Acts of Directors of irrigation district in issuing bonds will not be refused because after the resolution to issue the bonds the Board had ordered a por- tion of the district to be included, when at the time none of the bonds had issued, and there was no contract for their issuance. Refusal of Trial de novo on filing amended petition for confirmation of the proceed- ings of Board of Irrigation Directors in issuing bonds is not error where all the evi- dence that was taken'was applicable to the issues formed by the amended petition. — 52 — Notice of Election for issuance of bonds, required by Section 5 of Act of March 7,. 1887, need not be given on a special election held under Section 15 of that Act. Petition to Confirm proceedings of Board of Irrigation Directors will lie as soon as. any resolution has been adopted for the issue and sale of bonds, and it is not neces- sary to wait until the bonds have been actually issued. Exclusion of Part of Irrigation District does not terminate the authority given to the Directors to issue bonds, where, at the time of the exclusion, the district had no debt, and no objection was made to such exclusion by any person. This was a special proceeding under the statute of March 16, 1889, for the purpose of obtaining the decree of the Court approving and con- firming the proceedings had for the organization of the Modesto Irriga- tion District, and for the issuance and sale of the bonds of the district. The petition was filed on the first day of August, 1889. The Court thereupon made an order fixing the twenty-fourth day of August for the hearing of the petition, and required that the Clerk should give the notice of the hearing in the manner prescribed by law. In pursuance of this order the Clerk gave and published notice. On August twenty- fourth the defendant appeared and demurred to the petition. The demurrer was overruled. Thereafter the defendant filed his answer, and. on the issues thus raised the cause was tried. When the taking of the testimony was concluded, and during the argument, the respondents asked and obtained leave to amend the petition to make it uniform to the evidence taken. Leave was then granted to the defendant to answer such amendments as might be made, and on the eighteenth day of November, 1889, the defendant filed his answer to the petition as amended. The defendant asked that the case be tried de novo, but the demand was refused. The defendant was, however, permitted to offer evidence in support of any new matter in his amended answer. The Court gave judgment for the plaintiff, and the defendant appealed. Further facts appear from the opinion. George W. Schell, C. W. Easton, and Thomas B. Bond, for appellant, contended: That a general notice to the world was necessary, and that a limited notice was insufficient (Coaples on Proceedings in rem] Cooley on Const. Lim., 402), and that the notice must be served; that the people had no notice of the amended complaint, and that the judgment was therefore without due process of law {Thompson vs. Johnson, 60 Cal. 294); that Tregea had a right to raise this objection; that to give judgment with- out notice was unconstitutional; that the Supervisors violated the stat- ute by including the city of Modesto in the district (Stats. 1887, p. 30, Sec. 2). Further, that evidence should have been allowed to show that the Supervisors included the city of Modesto for the purpose of obtaining voters to force outside farmers into the corporation (Spring Valley Water- works vs. San Francisco, 82 Cal. 286); that the twenty-eight thousand acres were improperly excluded from the district; that the Court erred in holding that the order of July 31, 1889, for $400,000, was an order for a part of the same bonds ordered to be issued by an order of the Board of Supervisors made June 3, 1888; that the notice of the hearing of the original petition did not state the prayer of petition as required by the statute; that the Court should have tried the case de novo after the filing and serving of the amended answer and the answer thereto (C. C. — 53 — P. 67; Kentfield vs. Hayes, 57 Cal. 409; Barber vs. Reynolds, 33 Gal. 501); that no notice of an election for the issuance of bonds was posted in the office of the Board fifteen days before the election, as required by Section 5 of Act of March 7, 1887; that the action was prematurely brought, and that the proceeding could not be maintained, because no bonds had in fact been issued (Stats. 1889, p. 212; Stats. 1887, p. 35, Sec. 15); that if the Legislature intended by the Act of February 16, 1889, p. 21, to bind the new district by an election held by the old district ordering the issuance of the bonds, the Act to that intent is in conflict with Sees. 12 and 13 of Art. XI of the Constitution of California, and Sec. 10, Art. I of the Constitution of the United States. ( Turlock Irrigation District vs. Williams, 76 Cal. 370.) C. C. Wright, attorney for the respondent, admitted that the proceed- ing was one in rem, but contended: 1. That the notice was sufficient. (Cooley on Const. Lim., 4th ed., p. 503; Lent vs. Tillson, 72 Cal. 404; Estate of Johnson vs. Tyson, 45 Cal. 257; Suydam et al. vs. Pitcher & Poole, 4 Cal. 280; Rich vs. Starbuck, 45 Ind. 310; Wade on Notice, Sec. 1203.) 2. That the defendant would not be heard to complain that the people of the district had no notice of the amended complaint. ( Thompson vs. Johnson, 60 Cal. 292; McGray vs. Pedrorena.) 3. That the defendant has no authority whatever to make objections for the people of the district. 4. The respondent admits that a judgment against the land of the dis- trict and all of its inhabitants, without notice, would be void. 5 and 6. The Board of Supervisors have exclusive power to establish and define the boundaries of a district, and to say what lands shall, and what shall not, be included within those boundaries. (Stats. 1887, p. 30, Sec. 2; Central Irrigation District vs. De Lappe, 79 Cal. 351.) That what the Legislature had power to do by special Act before the Constitu- tion of 1879, it had delegated to local tribunals to do now. The question whether a town should be included in an irrigation district was one of public policy (Cooley on Const. Lim. 150) ; the legislative enactment that -a district will be benefited is conclusive (Cooley on Const. Lim. 661, 2d ed.). That the legislative Act of assigning districts for special taxation on the basis of benefits cannot be attacked on the ground of error in judgment regarding the special benefits (Cooley on Taxation, 450; Litch- field vs. Vernon; People vs. Lawrence, 41 Id. 140; St. Louis vs. Oeters, 36 "Mo. 456; Shaw vs. Dennis, 5 Gilm. 416; Philadelphia vs. Field, 58 Pa. St. 320; Wright vs. Boston, 9 Cush. 233). The lands need not be susceptible of irrigation; the criterion is are they benefited by it? (Stats. 1887, p. 29, Sec. 2.) The determination of the" Board on this point is conclusive. The statute of 1887 leaves no doubt whatever that the Legislature con- 1 < ■ i uplated the inclusion of city and town property in a district when, in the opinion of the Board of Supervisors, it would be benefited thereby. The policy of the law was a broad one, that whatever property would receive a benefit, whether by being developed as agricultural lands or by having the conditions surrounding it so improved as to enhance its mar- ket value, should be properly assessable and might be included. ( Turlock Irrigation District vs. Williams, 76 Cal. 360; Cooley on Taxation, pp. 450- 451, 1st ed.; Downer vs. Boston, 61 Mass. 281; 32 Cal. 553; Wright vs. — 54 — City of Boston, 63 Mass. 239.) That the evidence does not show that the Board of Supervisors did not exercise their best judgment in estab- lishing the boundaries of the district. That parole evidence cannot be admitted to contradict the record. (School District vs. Atherton, 12 Mit 113; Morrison vs. City of Lawrence, 11 Browne 221; Dillon on Mun Corp., Sees. 295, 299; Taylor vs. Henry, 2 Pick. 397; Mayhew vs. District of Gay Head, 13 Allen, 129; Boston Tp. Co. vs. Pomfret, 20 Conn. 500 Gilbert vs. New Haven, 40 Conn. 102; Langsdale vs. Bonton, 12 Ind. 467 Indianapolis vs. Imberry, 17 Ind. 175, 179; Delphi vs. Evans, 36 Ind. 90 Bigelow vs. Perth Amboy, 1 Dutch (N. J.) 296; Gearhart vs. Dixon, 1 Pa St. 224; City of Lowell vs. Wheelock, 11 Cush. 391; Morrison, Admx., vs City of Lawrence, 98 Mass. 221; Louisville vs. McKegney, 7 Bush. 651; 47 Cal. 488; Meeker vs. Van Rensselaer, 15 Wend. 397.) No fraud is charged by the appellant. 7. The exclusion of lands was legal. No bonds had been sold. There was neither a delivery of bonds nor an offer of payment of the price. (Blackwood vs. Cutting Packing Co., 76 Cal. 212; Peabody vs. McGuire y 79 Me. 585; Evansville R. R. Co. vs. Erwin, 84 Ind. 464; Turner vs. Moore, 58 Vt. 456; Adams vs. Connor, 100 Mass. 515.) But the appellant can- not raise any objection to the exclusion, because the statute was only intended for the benefit of the holder of outstanding bonds. (Stats. 1889, p. 21, Sees. 4-6.) 8. That the appellant cannot object to the exclusion on behalf of own- ers of land within the excluded district. 9. That the determination to proceed upon any given plan of irriga- tion was not conclusive on the Board, and it was their duty to change their plans as often as it became apparent that any other plan was better than the one under contemplation. 10. The respondent contends that the notice stated the prayer of the petition sufficiently. (Lent vs. Tillson, 72 Cal. 404.) 11. That the amendment was only such as was necessary to meet the proofs, and that such an amendment was clearly admissible. (Con- nolly vs. Peck, 3 Cal. 82; Valencia vs. Cauch, 32 Cal. 340; Tryon vs. Sutton, 13 Cal. 494; Hooper vs. Wells, 27 Cal. 35; Carpentier vs. Bren- ham, 50 Cal. 549; Farmers' Nat. Bk. vs. Stover, 60 Cal. 387.) 12. It was not necessary that a notice of the bond election should have been posted in the office of the Board of Directors. The provis- ions of Section 5 of the Act of 1887 do not apply. The provisions of Section 15 govern. (Endlich on Interpretation of Statutes, Sec. 399.) 13. The action for confirmation lies before the bonds have been deliv- ered into the hands of a purchaser. Any other interpretation would defeat the purpose of the statute, as the essence of the whole Act is that the purchaser may have the benefit of its provisions before he incurs any hazard in the purchase of the bonds. 14 and 15. The Legislature has power to bind a new district for bonds issued before the exclusion of lands. (Dillon on Mun. Corp., 3d ed., Sees. 185, 186, 187, 189.) Funds raised or to be raised by taxation are subject to municipal control. (Creighton vs. San Francisco, 42 Cal. 446;, Blanding vs. Burr, 13 Cal. 343; Town of Didon vs. Mayes, 72 .Cal. 166; Santa Rosa vs. Coulter, 58 Cal. 537.) C. A. Stonesifer (A. L. Rhodes, of counsel) contended that notice to those interested in the litigation only was necessary; that the defendant — 55 — cannot complain of want of notice of the amended petition, as he had appeared, and that he had no authority to object that other persons had no notice (McGray vs. Pedrorena, 58 Cal. 94); that notice of amended pleadings need not be given to those not appearing (C. C. P., 1014) ; that this was not a proceeding in rem, but a special proceeding (Confirmation Act, Sec. 1 ) ; that notice by publication in a special proceeding was due process of law. (Lent vs. Tillson, 72 Cal. 404; Davidson vs. New Orleans, 96 U. S. 104; Riley vs. Lancaster, 39 Cal. 354; Eitel vs. Foote, 39 Cal. 440; Mayo vs. Foley, 40 Cal. 283; State vs. McGlynn, 20 Cal. 233; Irwin vs. Scriber, 18 Cal. 449; Boyd vs. Blankman,39 Cal. 19; People vs. Hagar, 52 Cal. 171; Barrett vs. Carney, 33 Cal. 536; Friedlander vs. Loucks, 34 Cal. 38.) Further, that the including of Modesto was not a violation of the law; that the question as to what lands should be benefited, and should be included within a district, is committed to the judgment and discre- tion of the Board, and that its action is conclusive; that inquiry cannot be made into the motives of the members of the Board; that nothing short of actual fraud will be a ground of attack, and that the acts of fraud must be specifically alleged. (People vs. Hagar, 52 Cal. 181; Free- man on Judgments, Sees. 523,524; Bigelow on Estoppel, p. 142; People vs. Hagar, 66 Cal. 60; Bernal vs. Lynch, 36 Cal. 135; Waugh vs. Chaun- cey, 13 Cal. 1 1; Comstock vs. Crawford, 3 Wall. 403; Mayo vs. Ah Loy, 32 Cal. 479; People vs. Doe, G., 36 Cal. 220; Mayo vs. Foley, 40 Cal. 282; United States vs. Arredondo, 6 Peters, 729.) That the exclusion of a body of land from the district did not affect the proceedings. The proceedings were regular. (Stats. 1889, p. 21.) There were no outstanding bonds, as bonds contracted to be sold but not delivered are not outstanding bonds. There was no objection to the exclusion, and therefore no election was required. And if the exclusion w T as irregular, the defendant would have no cause of complaint, as the land would still be in the district; that there was nothing in the evi- dence to sustain the claim that the .$400,000 of bonds ordered to be sold was not part of the $800,000; that the source and mode of obtaining water may be changed from time to time. The notice sufficiently states the prayer of the petition (McGray vs. Pedrorena, 58 Cal. 94), and con- forms to Section 3 of the Confirmation Act. A trial de novo was not required upon the filing of the amended petition; the posting of the general notice required by Section 5 was established by presumption (C. C. P., Sec. 1963, Sub. 15; 1 Phil, on Ev., Cow., Hill & E. notes, p. 604; People vs. Holden, 28 Cal. 133); that if there was an omission to do so it did not affect any substantial rights, and must be disregarded (Pol. Code, Sec. 4; 10 la. 218); further, that Section 5 does not govern, but that the notice is regulated by Section 15 of the Act, and that on the pleadings the point cannot be made or maintained. The statute does not bear out the construction contended for, that the action was prematurely brought. The denomination of the bonds need not be fixed at one and the same time, as that matter is left with the discretion of the Board. The contention that the authorization became void because part of the district was excluded cannot be sus- tained. The proceedings in the formation, organization, and govern- ment of irrigation districts are to be liberally construed. . (Irrigation District vs. De Lappe, 79 Cal. 354; Irrigation District vs. Williams, 76 Cal. 368.) — 56 — Geo. W. Schell, C. W. Eastin, and Thos. B. Bond, for the appellants, in reply contended: The judgment of the Board is not conclusive. It is not only essential that the land should be benefited by irrigation, but also that it must be from a common source, and the same system of works. The city of Modesto cannot be benefited from a common source by the same system of works. Evidence of this fact, and of the fact that the Board were aware of it, was rejected. The Board is not the final judge as to whether the land is susceptible of irrigation. There should have been notice of the amended complaint. {Thompson vs. Johnson, 60 Cal. 294.) Tregea has the right to make the objection, as neither the judgment nor the action are against him, but against the district, and he has the right to appear and show cause why the judgment should not be taken against all the people. The bonds must be immediately issued, and must be numbered as issued, and bear date at the time of their issue. The sale of the bonds to Perley & Tucker was complete, and the title passed; the Board had no power to rescind the sale, and the exclusion of the 28,000-acre tract was void, because they never assented to it. Respond- ent is estopped to deny that the land was included. (C. C. P., Sec. 1962, Sub. 3.) If the land was properly included, it would violate Art. XI, Sees. 12 and 13 of the Constitution, to impose upon the new district the burden of the old. The new district never assented to the issuance of the bonds, except in conjunction with the old. The exclusion of twenty- eight thousand acres of land, and the adoption of a totally different scheme, without the concurrence or assent of the people remaining in the district, was a violation of their constitutional rights. The adver- tisement of the bonds of the district for sale, the unconditional bid of Perley & Tucker, and the unconditional acceptance of the bid by the Board, and the order entered by them upon their records selling the same to Perley & Tucker, constituted a complete sale, which either party could enforce in law — one which could not be set aside or annulled by the private or secret agreement of one or both. This sale was in force when the order of exclusion was made, and was made without their assent. The denial of notice in the answer, though made on informa- tion and belief, puts in issue the giving of notice. (Reid vs. Buffum, 79 Cal. 82.) The giving of the notice required by Section 5 was essential. {People vs. Seals, 52 Cal. 620; People vs. Castro, 39 Cal. 65.) The defend- ant did not have to prove his negative allegation that no notice was given. (C. C. P., Sees. 1868, 1981 ; Stevens' Evidence, 96; Greenl. Evid., 79, ch. 7; U. S. vs. So. Cal. Coal Co.,1 W. C. R. 1-12; Bates vs. Lyman, 12 Pac. 33.) The election for bonds was a special election. Notice of the time and place was necessary, therefore the notice prescribed by Sec- tion 5 was necessarv. The allegations in the complaint are sufficiently traversed. {Hill vs. Smith, 27 Cal. 480; Estee's PL, 3d ed., par. 3174.) Time and place are the substance of every election. {Dickey vs. Hulbert, 5 Cal. 345; Leading Election Cases, 254; Chadwick vs. Melwin, Sup. Ct., Pa., March Term, 1871.) Section 5 applies to every election held under the Wright Act. The case of Lent vs. Tillson, 72 Cal. 424, does not sus- tain the proposition that no election was necessary. The action of the Board in abandoning one scheme and adopting another vitiated the pro- ceedings for the issuance of the $400,000 bonds, was not bassd on the estimates of the Board prior to the election called for the first scheme, — Oi — but on the new estimate made on the new scheme, eighteen months after the election. The Board having made this estimate eighteen months after the election, their action is invalid, unless ratified by an election. An order of a Board of Supervisors does not impart the same absolute verity as a judgment. (C. C. P., Sec. 1962.) By the Court, Beatty, C. J.: This is a special proceeding instituted in pursuance of the Act of March 16, 1889 (Stats. 1889, p. 212), for the purpose of obtaining judicial confirmation of the validity of certain bonds of the respondent, which it has ordered to be issued and sold. The Act referred to is supplemental to the Act entitled "An Act to provide for the organization and government of irrigation districts, and to provide for the acquisition of water and other property, and for the distribution of water thereby for irrigation purposes," approved March 7, 1887, and commonly known as the Wright Law. (Stats. 1887, p. 29.) The original Act, as its title imports, provides for the organization of irrigation districts, and for the adoption and carrying out of plans for the irrigation of the lands embraced therein. Among other things so provided for, is the issuance and sale of the bonds of the several districts. Before any such bonds can be issued or sold, the Directors of the district are required to submit the proposition to a vote of the electors at a special election, and to order and give notice of such election in a manner par- ticularly prescribed. As to the validity of the bonds when issued, depends upon the regu- larity of the proceedings of the Board and upon the ratification of the proposition by a majority of the electors. It is a matter of common knowledge that investors have been unwilling to take them at their par value while all the facts affecting their validity remain the subject of question and dispute. To meet this inconvenience — for the security of investors, and to enable the irrigation districts to dispose of their bonds on advantageous terms — the supplemental Act, under which this proceeding was insti- tuted, was passed. It provides that the Board of Directors of any irrigation district may " commence a special proceeding, in and by which the proceedings of said Board and of said district providing for and authorizing the issue and sale of the bonds of said district, whether said bonds or any of them have or have not been sold, may be judicially examined, approved, and confirmed." The proceeding is commenced by the filing of a petition in the Supe- rior Court of the county in which the lands of the district, or some portion thereof, are situate, praying the confirmation of the proceedings of the Directors. Whereupon, the Court is required to make and pub- lish an order stating the prayer of the petition and fixing a time and place for the hearing. Any person interested may demur to or answer the allegations of the petition, and the issues of law and fact are tried and determined by the Court as in other cases under the ordinary rules of practice. The Court has power, upon the hearing, to examine and determine the legality and validity of the organization of the district, and all mat- ters affecting the legality and validity of the bonds and the order for — 58 — their sale, and has the power to confirm the proceedings in whole or in part, according to the facts. In this case, the proceeding in the Superior Court resulted in a judg- ment affirming the regularity of the organization of the respondent as an irrigation district, and the legality and validity of its orders for the issuance of its bonds to the amount of $800,000, and for the sale of $400,000 thereof. The defendant, a resident and property owner of the district, who contested the validity of the respondent's proceedings, appeals from the judgment of the Superior Court and from an order denying his motion for a new trial. Numerous errors are assigned and argued, but they are all involved in, and may be disposed of by, a consideration of a few general propo- sitions: First — It is contended that there was not sufficient notice of this pro- ceeding to give the Superior Court jurisdiction to render a judgment binding upon the lands of the district and their owners. There seems to be a claim under this head, though it is not particularly insisted upon, that the notice prescribed by the statute is not sufficient. The object of the proceeding is, of course, to compel every person interested in the district, and whose property is to be bound for the payment of its debts, to come into Court, and within the time limited, present and submit to judicial investigation any and all objections he may have to the regularity of the organization of the district, and all other matters affecting the validity of the bonds, so that it may be finally and conclusively determined by a judgment which neither he nor his successors in interest can thereafter question, whether such bonds are legal and valid or not. Notice must therefore be given to all persons so interested. But it need not be a personal notice. It not only may be, but to secure the ends of the statute it must be, a general notice by publication in some form. It is unnecessary to take up time in the discussion of this ques- tion, which has long since ceased to be an open one in this State. With- out referring to many. earlier and later decisions bearing more or less directly upon the point, it is sufficient to say that the statute and pro- ceedings under review in Lent vs. Tillson, 72 Cal. 404, were in all essential respects similar, as to their objects and the substance of their provisions, to the statutes and proceedings in question here, and the notice of this proceeding prescribed by the statute of 1889 is for every purpose as ample and beneficial as the notice to property owners, which was in that case held sufficient to give validity to the proceedings by which the lands of the local assessment district were subjected to a lien for the payment of the Dupont-Street bonds. The provisions of the supple- mental Act in regard to this matter are found in Section 3, Statutes of 1889, p. 212, which reads as follows: "The Court shall fix the time for the hearing of said petition, and shall order the Clerk of the Court to give and publish a notice of the filing of said petition. The notice shall be given and published in the same manner and for the same length of time that the notice of a special election provided for by said Act to determine whether the bonds of said district shall be issued is required to be given and published. The notice shall state the time and place fixed for the hearing of the peti- tion, and the prayer of the petition, and that any person interested in the — 59 — organization of said district, or in the proceedings for the issue or sale of said bonds, may, on or before the day fixed for the hearing of said petition, demur to or answer said petition. The petition may be referred to and described in said notice as the petition of the Board of Directors of Irrigation District (giving its name), praying that the proceed- ings for the issue and sale of the bonds of said district may be examined, approved, and confirmed by said Court." But it is further contended that even conceding the sufficiency of the notice prescribed by the statute, the notice actually given of this pro- ceeding did not comply with the statute. In order to arrive at a proper understanding of the several objections falling under this head, it is necessary to state generally the facts con- cerning the organization of the respondent as an irrigation district, and its subsequent proceedings. The petition to the Supervisors of Stanislaus County, in which all its lands are situate, for the formation of the district, was filed May 11, 1887, and the order of the Board declaring the due organization of the district was made July 18, 1887. Thereupon, the Directors of the dis- trict organized, caused surveys and estimates of the cost of acquisition and distribution of water to be made, and on November 19, 1887, fixed the sum necessary to be raised by the issuance of the bonds of the dis- trict at $800,000. The proposition to issue this amount of bonds was at a special election submitted to a vote of the electors of the district, who, by a considerable majority, voted in favor of the proposition. Upon ascertaining the result of this election the Directors, on the third day of January, 1888, "resolved and ordered that the bonds of said district in the sum of $800,000 be issued in the manner and form pre- scribed by said Act." After resolving upon the issuance of said bonds, several unsuccessful efforts seem to have been made to dispose of a portion of the amount authorized, and finally on July 31, 1889, the following resolutions were adopted by the Board of Directors: " It is hereby ordered that the bonds of this district be issued in the amount of $400,000, of the following denominations: Seven hundred and sixty bonds of the denomination of $500 each, and two hundred bonds of the denomination of $100 each, and that the said bonds shall in form and substance conform to the provisions*of the Act of the Legis- lature of the State of California entitled 'An Act to provide for the organization and government of irrigation districts, and to provide for the acquisition of water and other property, and for the distribution of water thereby for irrigation purposes,' approved March 7,1887, and that they be signed, sealed, and numbered as in said Act provided. " It is further ordered that the bonds of the district conforming to the provisions of said Act and to this order be jiu'epared, executed, and issued in such manner and form in all respects that they shall become and be ready for sale by this Board, and on behalf of this district. "Resolved, That this Board hereby declares its intention to sell the bonds of this district to the amount of $400,000, to wit: Seven hundred and sixty bonds of the denomination of $500 each, and two hundred bonds of the denomination of $100 each; and it is therefore ordered that a notice, that sealed proposals will be received by this Board, at its office in the city of Modesto, up to the hour of 1:30 o'clock p. m., of the third day of September, 1889, for the purchase of said bonds, be pub- — 60 — lished for twenty days before the said date in the following newspapers: The " Daily Alta," published in the city of San Francisco, the " Record- Union," published in the city of Sacramento, and the "Daily Times," published in the city of Los Angeles. On motion duly made, seconded, and carried, it was ordered that the Board of Directors of this district commence special proceedings in and by which the proceedings of said Board and of said district for and authorizing the sale of the bonds of said district, may be judicially examined, approved, and confirmed." In pursuance of this resolution, the original petition in this case was filed in the Superior Court of Stanislaus County on the following day, August 1, 1889. In this petition the due organization of the district, under the Act of March 7, 1887, is alleged to have been effected on the eighteenth day of July, 1887. It is alleged that certain persons (naming them) were then duly elected, and have ever since been the Directors of the district; that all its lands are in Stanislaus County; that as soon as practicable after its organization, to wit: on November 19, 1887, the Directors duly estimated the cost of acquiring water rights and constructing irrigation works for the district at $800,000, and that it was necessary to issue the bonds of the district to that amount, and that the same should be sold, provided the electors of the district should vote in favor of their issuance. It is alleged that a special election was immediately called, at which the proposition should be submitted and voted upon, of which the notices required by the statute were duly published and posted; that at the time appointed the election was in fact held; that the returns of said election were duly made and canvassed, and the result duly declared and recorded, and that the vote was four hundred and thirty-nine in favor of, and only seventy-six against, the proposition. The original petition fails at this point to state the next steps actually taken by the Board of Directors, viz.: its resolution of January 3, 1888, to issue the $800,000, authorized by said vote, and its unsuccessful efforts to sell portions of such issue. Omitting all reference to these proceedings, it alleges the orders and resolutions of July 31, 1889, above quoted, directing the issuance and sale of bonds to the amount of $400,000, and closes with the following prayer: " Wherefore, your petitioner prays that the proceedings aforesaid, for the issue and sale of« said bonds of said irrigation district, may be judicially examined, approved, and affirmed by said Court." Upon the filing of this petition the Judge of the Superior Court made an order fixing the twenty-fourth day of August, 1889. for the hearing of the petition, and ordered the Clerk to cause notice of the filing of the petition to be given and published, as prescribed by law. In pursuance of said order, the following notice was issued and pub- lished for the prescribed period: " In the Superior Court of the county of Stanislaus, State of California. In the matter of the Modesto Irrigation District No. 1,003. " Notice is hereby given that the petition of the Board of Directors of the Modesto Irrigation District, praying that the proceedings for the issue and sale of the bonds of said district may be examined, approved, and confirmed, was on the first day of August, 1889, filed in said Court; that said Court fixed as the time for the hearing of the said petition the twenty-fourth day of August, 1889, at the Court House, in the city of Modesto; and notice is further given that any person interested in the — 61 — organization of said district, or in the proceedings for the issue or sale of said bonds, may, on or before the day last above mentioned, demur to or answer said petition. " By order of the Court. "Attest: E. D. McCabe, Clerk. " By A. J. Lewis, Deputy Clerk. "(Indorsed.) Filed October 21, 1889. "E. D. McCabe." The defendant, on the twenty-fourth day of August, 1889, appeared in the proceedings by his attorney and filed a demurrer to the petition, which was overruled by the Court, and on September third he filed an answer, and the issues were set for trial on October 21, 1889, upon which day the trial commenced and continued until both parties closed their evidence on October twenty-sixth, whereupon the Court adjourned until October twenty-eighth. When the hearing was resumed on the twenty- eighth, and after the argument had commenced, the petitioner asked and obtained leave to file and serve an amended petition, and defendant was granted leave to demur to or answer such amended petition within ten days after service of an engrossed copy. On the thirtieth day of October the amended petition was filed, which, in addition to the allegations of the original petition, alleged the order of the Board of Directors of January 3, 1888, for the issuance of the $800,000 of bonds voted by the electors, and also that the $400,000 of bonds ordered issued and sold by the resolution of July 31, 1889, were a part of the amount of $800,000 ordered issued by the resolution of January 3, 1888. The prayer of the amended petition was a repetition of the original prayer. The defendant, upon being served with the amended petition, again demurred, and his demurrer being overruled, he again answered specific- ally, denying everything alleged in the petition, and setting up several matters of defense. He then demanded that the whole case should be tried de novo, disregarding all the evidence that had been taken. But the Court refused this demand, holding that the evidence already taken might properly be considered, but allowing the parties to introduce evi- dence as to the new matters embraced in the amended pleadings. In pursuance of this order the trial was resumed on November twenty- first between the petitioner and defendant, and thereupon the case was argued, submitted, and decided. No notice of the changes introduced into the petition by the amend- ments above mentioned was ever published or served in any manner except upon the defendant; but the Court, in its findings and decree, confirmed and declared valid not only the order of July 31, 1889, relat- ing to the issue and sale of the $400,000 of bonds, but also the order of January 3, 1888, relating to the issue of $800,000, which, as Ave have said, was mentioned for the first time in the amended petition. Such being the case, the appellant objects to the published notice of the filing of the petition; first, that it was insufficient as a notice of the original petition; and second, that it could not possibly confer upon the Superior Court any jurisdiction to confirm the proceedings alleged for the first time in the amended petition. The statute (Sec. 3) requires that the notice shall state, among other — 62 — things, the prayer of the petition, and it is contended that this notice did not state the prayer of the petition. But we think the notice contained everything necessary to a substan- tial compliance with the law. The prayer of the petition must be read in connection with the peti- tion itself in order to understand its meaning, but so read it is clear and intelligible, and is in effect a prayer for the judicial examination, approval, and confirmation of all the proceedings set out in the petition, including those for the organization of the district, for they, like the rest, were essential to the legality and validity of the bonds, and accord- ingly the statute (Sec. 5) expressly confers power and jurisdiction upon the Court, in all proceedings for the confirmation of bonds, to examine and determine, approve and confirm the proceedings for the organiza- tion of the district, as well as all other proceedings that may affect the legality and validity of the bonds and the order for their sale. The prayer, therefore, was sufficient when read in connection with the petition, but to have repeated it in its literal terms in the notice would have been meaningless, and the only way to "state" it was to give its substance, as was done. Of course, to a person entirely ignorant of the law authorizing and regulating the proceedings, the notice may have been unintelligible, but it would have been equally so to such a person if the prayer of the petition had been as full and specific as the allegations upon which it was founded, and had been copied verbatim in the notice. A knowledge of the law is, however, imputed to every one interested in the proceeding, and it is decided, in Lent vs. Tills on, supra, that the notices required in cases of this character are to be construed and aided by reference to the statute. So read and construed, we think that the notice in this case was in substantial compliance with the statute, and imparted sufficient notice to all the world that the Directors of Modesto Irrigation District No. 1,003, would, on the twenty-fourth day of August, 1889, submit the question of its corporate existence and the regularity of all its pro- ceedings for the issuance and sale of its bonds, so far as the same were set out in its petition on file, to the Superior Court of Stanislaus County, and would ask the Court to decree the regularity of all such proceed- ings; and we think that all persons interested in the district, being so notified of the time of the filing of the petition, and of the office in which it remained as a public record, were bound to take notice of its specific allegations, and if they had any objection to the confirmation of the orders and proceedings referred to in the prayer of the petition, that they were required to present their objections to the Court at the time and place mentioned in the notice, or be forever precluded — they and their successors — from questioning the validity of the bonds issued in pursuance of such proceedings. But could the Court, without the publication of a new notice for the statutory period, acquire jurisdiction to examine and make a valid con- firmation of proceedings not set out in the petition on file when the original notice was published, and to which alone it referred ? Or, to state the question more precisely, could the Court, by giving notice of a petition to confirm an order for the issue and sale of bonds to the amount of $400,000, acquire jurisdiction to confirm an order for the issuance of bonds to the amount of $800,000 ? We do not think it could. — 03 — The only answer which respondent makes upon this point to the con- tention of appellant, is that he had notice of the amended complaint, that he demurred and answered to its allegations, and therefore cannot be heard to object that other persons had no notice. Of course, in ordinary proceedings intended to fasten a liability upon particular defendants, and in which each may be made independently liable, this would be a sufficient answer. But here the proceeding is in rem, and its object is to establish the validity of the bonds as against the irrigation district, and all persons interested in the district. To be effective for the protection of investors or of advantage to the district, the judgment should bind all the world. A judgment binding upon the appellant alone must be in effect a nullity, leaving the district in pre- cisely the same position it was in before the proceeding was commenced. Such being the case, this appellant, as a land owner of the district, directly interested in the price to be realized upon a sale of its bonds, has a right to insist that the steps necessary to give the Court jurisdic- tion to pronounce a binding decree shall be regularly taken. And we can see no escape from the conclusion that this decree, so far as it attempts to confirm the order of January 3, 1888, for the issuance of $800,000 of the bonds of the district, is erroneous and void for want of jurisdiction. But we think there is no doubt that the Superior Court had jurisdiction, acquired by full compliance of the law, to examine into and confirm the order of July 31, 1889, for the issuance and sale of $400,000 of the bonds of the district, and that as to that order the decree may be affirmed, if it, and the proceedings upon which it was founded, were regular and legal. To sum up this branch of the case, we are told, with reference to the points presented by appellant, as follows: The object of the Act of March 16, 1889, is to provide a security for investors, and promote the advantage of the irrigation districts by enabling the Courts of the State to render a judgment binding on all the world as to the validity of bonds to be offered for sale by such districts. To obtain such judgment the petition should set forth the particular orders for the issuance and sale of bonds, confirmation of which is desired. How fully the preliminary proceedings must be alleged is a question which does not arise here; but with respect to the organization of the district, it is only necessary that its due organization, and the election of its first Board of Directors, should be alleged in general terms. The prayer of the petition is sufficient if it prays for the examination, approval, and confirmation of the proceedings "aforesaid" for the issu- ance and sale of bonds of the district, and the notice is sufficient if it states the substance of such prayer, and in other respects conforms to the statute. But the decree of the Court cannot go beyond the orders for the issuance and sale of bonds which are alleged in the petition, and in case the original petition is amended by setting out other orders for the issuance or sale of bonds, the Court will not acquire jurisdiction to confirm such orders without the publication of a new notice of the amended petition. A decree, however, confirming all the orders alleged in the original and amended petitions is not void for want of jurisdiction as to the orders set out in the original petition, merely because no new notice has been given of the filing of the amended petition. If there was due pub- lication of sufficient notice of the original petition, the decree of the — 64 — Court confirming the orders for the issuance and sale of bonds therein specifically alleged, and of all the preliminary proceedings affecting their validity, including those for the organization of the district and the election of its first Board of Directors, is within the jurisdiction of the Court, and can be assailed only by those who have contested the proceeding, and by them only upon the ground of prejudicial errors affecting their substantial rights which have been duly excepted to. In this case, accordingly, we hold that so much of the decree as con- firms the order for the issuance of $800,000 of bonds of the district, dated January 3, 1888, is void, but that it should be affirmed so far as it confirms the order of July 31, 1889, for the issuance and sale of $400,- 000 of the bonds of the district, unless in conducting the proceeding the Superior Court committed error to the prejudice of this appellant. The first point urged by the appellant upon this branch of the case is, that the Superior Court had erred in confirming the proceedings of the Board of Supervisors in organizing the district, because said Board, by including therein the city of Modesto, had violated the following provis- ion of the Wright Law: "Nor shall any lands which will not, in the judgment of said Board, be benefited by irrigation by said system, be . included within such district." (Stats. 1887, p. 30, Sec. 2.) It appears from the record that the district, as originally organized, 'contained about one hundred and eight thousand acres of land, includ- ing the city of Modesto, a town covering about two thousand acres, and having about three thousand inhabitants and about six hundred dwell- ing houses, besides shops, stores, etc. One proposition of the appellant seems to be that the mere fact of the corporate existence of a town or city, though situate in the midst of a district susceptible of irrigation by one system, necessarily deprives the Board of Supervisors of the county of the power to include any of the lands within the corporate limits of such city or town in an irrigation district. We say this seems to be a proposition of the appellant, because, although it is not expressly stated in terms, it appears to be necessary to sustain his contention; for if it lies within the discretion of the Board to include in an irrigation district any part of the lands of a town or city upon the ground that in their judgment such part will be benefited by irrigation under the system proposed, and if the judg- ment of the Board upon the question of benefits is conclusive of the fact — as we shall show that it is — there is no ground upon which a Court can say that an order including all the lands of a city or town in such district is void. The idea of a city or town is of course associated with the existence of streets, to a greater or less extent lined with shops and stores, as well as of dwelling houses, but it is also a notorious fact that in many of the towns and cities of California there are gardens and orchards inside the corporate boundaries requiring irrigation. It is equally notorious that in many districts lying outside of the corporate limits of any city or town there are not only roads and highways, but dwelling houses, out- houses, warehouses, and shops. With respect to these things which determine the usefulness of irrigation there is only a difference of degree between town and county. The advantages of irrigation to a town like Riverside, in San Bernardino County, for instance, no one could deny, and the difference between such a town and those places where irrigation would be as manifestly out of place are not marked by any hard and — 65 — fast line which would enable a Court to lay down a rule of discrimina- tion. The question whether in any particular case a town will, as a whole, be benefited directly by the application of water for irrigation is in its nature, and under existing conditions must remain a question of fact to be decided by that tribunal to whose discretion it had been com- mitted by the Legislature. It is very certain that the Legislature intended that cities and towns should in proper cases be included in irrigation districts, for the Act expressly provides for the assessment and taxation, according to their value, not only of city and town lots, but also of the improvements thereon. (Stats. 1887, p. 37, Sees. 18 et seq.) And this feature of the law was made an argument against its constitution- ality in the case of Turlock Irrigation District vs. Williams, in which its constitutionality was affirmed. (76 Cal. 360.) Such having been the intention of the Legislature, as is clearly apparent, and it being equally clear and notorious as matter of fact that there are cities and towns which not only may be benefited by irrigation, but actually have in profitable use extensive systems for irrigating land within their corpo- rate limits, it cannot be denied that the Supervisors of Stanislaus County had the power to determine that the lands comprising the city of Modesto would be benefited by irrigation, and might be included in an irrigation district. There was, it appears, a large majority of the electors of Modesto in favor of such inclusion, but the appellant and others owning buildings objected to being included in the district, on the ground that their lots covered with stores, shops, and warehouses would not be benefited. If this objection was good ground for excluding the city from the district, it is probable that no district could ever be successfully organized, for in the nature of things, an irrigation district must cover an extensive tract of land, and no matter how purely rural and agricultural the community may be, there must exist here and there within its limits a shop or warehouse covering a limited extent of ground that can derive no direct benefit from the use of water for irrigation. Here, again, the difference between town and county is one of degree only, and a decision in the interest of shop owners in towns, that their lots cannot be included in an irrigation district, would necessarily cover the case of the owner of similar property outside of a town. It is nowhere contended by the appellant that in organizing irrigation districts it is the duty of the Supervisors to exclude, by demarkation, every minute tract or parcel of land that happens to be covered by a building or other structure which unfits it for cultivation, and certainly the law could not be so construed without disregarding many of its express provisions, and at the same time rendering it practically inop- erative. We construe the law to mean that the Board may include in the boundaries of the district all lands which, in their natural state, would be benefited by irrigation and are susceptible of irrigation by one sys- tem, regardless of the fact that buildings or other structures may have been erected here and there upon small lots, which are thereby rendered unfit for cultivation, at the same time that their value for other purposes may have been greatly enhanced. So construed, we can see no objection to the law upon constitutional grounds or grounds of expediency. As to owners of such property, it seems reasonable to assume that — 66 — they must participate, indirectly at least, in any benefits the district may derive from the successful inauguration of a system of irrigation; but aside from this, the law contains an express provision designed to secure to them a benefit exactly corresponding to any burden to which they may be subjected, and in that respect is far more equitable than many of the assessment laws which have been upheld here and else- where. The provision referred to is this: Every taxpayer of the dis- trict receives a portion of all the water distributed exactly equivalent to his proportion of the total tax levied, and this water is his to use or to sell, as he may elect, so that if his lot is not fit for cultivation, he, nevertheless, gets a full equivalent for the tax assessed to him. (Stats. 1887, p. 34, Sec. 11.) Upon these grounds, we hold that a city or town, or a portion thereof, may, in a proper case, be included in an irrigation district. As to what is or what is not a proper case for such inclusion, the decision of that question has been committed to the several Boards of Supervisors, whose discretion is not subject to the control of any Court. Upon matters affecting their jurisdiction, the orders of the Board of Supervisors may be open to review, but upon the question of fact, as to . what lands will or will not be benefited by irrigation, their decision is final and conclusive. (See Section 2 of the Act, Statutes of 1887, p. 30.) The formation of irrigation districts is accomplished by proceedings so closely analogous to those prescribed for the formation of swamp land reclamation districts, that the decisions with respect to the latter are authority as to the former, and we cite as conclusive of this point: Peo- ple vs. Hagar, 52 Cal. 181; id., 66 Cal. 60. Many other decisions to the same effect are cited in the briefs of counsel, but we deem it unnecessary to refer to them here. The Superior Court did not err, therefore, in refusing to allow the appellant to introduce evidence for the purpose of proving that his and other lots in the city of Modesto would be benefited by the proposed system, or any system of irrigation. Nor did the Court err in refusing the offer of appellant to prove that the Board of Supervisors wrongfully included the city of Modesto in the irrigation district, for the purpose of carrying out the scheme of organization against the wishes of the farmers outside the city. To entitle the appellant to prove that the Board and its members, well knowing that the lands of the city would not be benefited by irrigation, had, nevertheless, included them for the corrupt purpose suggested, and not in the exercise of their honest judgment and discretion, the facts constituting the fraud should have been fully pleaded in the answer. But no such facts as he offered to prove were pleaded. It is, indeed, alleged that the order including the city was not made in the exercise of the judgment and discretion of the Board, but contrary thereto. This allegation is part of a separate defense, in which it is coupled with other allegations, going to show that the lands of the city would not be benefited by irrigation, but it is nowhere alleged that the Board, or any of its members, actually believed at the time they offered such lands to be included in the district, that they would not be bene- fited. The Court, therefore, properly sustained the objection that the offered evidence was immaterial. As to all such matters as were alleged in the answer, the evidence shows that the Board of Supervisors acted with the utmost deliberation — 67 — upon the petition for the organization of the district; that they heard and considered numerous objections, and the testimony offered in sup- port of them, and did not make their final decision until the time allowed for deciding had nearly elapsed. The next point urged for appellant arises out of the fact that after the original organization of the district including one hundred and eight thousand acres, and after the proposition to issue $800,000 of bonds had been ratified by a vote of the electors of the district, and after the resolution of the Directors to issue the bonds to that amount, the Board of Supervisors had ordered a portion of the district, embrac- ing twenty-eight thousand acres, to be cut off and excluded therefrom. It is contended that this order, which was one of the proceedings confirmed by the Superior Court, was void for want of jurisdiction in the Board to make it. The proceedings for the exclusion of lands from an irrigation district of which they form a part, are authorized and prescribed by another Act amendatory and supplemental to the Wright Act, approved Feb- ruary 16, 1889. (Stats. 1889, p. 21.) This Act provides for the filing of a petition for exclusion by owners of lands within the district, notice of the filing of such petition, and time and place of hearing; the presentation of objections by parties interested, and in certain cases for a submission of the question of exclu- sion to a vote of the electors of the district. Among other things it is provided that if there be any outstanding bonds of the district, no order of exclusion can be made without the consent, in writing, of the holders of such bonds, acknowledged as deeds of conveyance are required to be acknowledged. It is contended by the appellant that at the time the petition for the exclusion of the twenty-eight thousand acres was filed, and during the greater portion of the time the notice of the hearing was being pub- lished, there were outstanding bonds of the district, and that no written consent of the holders of said bonds was ever given to the making of the order. But the fact is there never were any outstanding bonds of the district. Its bonds, as above stated, had more than once been offered for sale, and at one time a bid for $50,000 of the bonds had been made by Tucker & Perley, and formally accepted by the Directors. But the evidence shows that at the time of the making and accepting of this bid there was an understanding between the bidders and the Directors that the former were not to be held to their offer, unless they could succeed in negotiating a sale of the bonds to some outside party, and as they failed to do so, the bonds had never been issued or paid for. And prior to the making of the order of exclusion, Tucker & Perley had, upon their written request, been released from their offer by formal resolution of the Board of Directors. Such being the case, it is clear that there had not only never been any outstanding bonds of the district, but that at the date of the order of exclusion there was not even a subsisting contract for the issuance of the bonds. We cannot perceive, therefore, that the Court committed any error in decreeing the validity of the order of exclusion. But, even if the decree had been in that respect erroneous, it is by no means clear that it would have been material. For the order of exclusion is not one of the orders — 68 — set out in the petition of the respondent, confirmation of which is prayed. It is alleged, for the first time, in the answer of appellant, and its invalidity charged as matter of defense, and as a ground for refusing confirmation of the order for the issuance and sale of bonds. It is, therefore, material only so far as its validity and invalidity affects such order for the issuance and sale of bonds, and we do not understand how that order would be any more or less valid, whether the order of exclu- sion was legal or not. The Superior Court did not err in holding that the $400,000 of bonds ordered to be issued and sold by the order of July 31, 1889, was part of the issue of $800,000 proposed and voted and ordered issued January 3, 1888. The evidence fully sustains the finding, and there is nothing really opposed to it except the mere fact that the resolution of the Board of Directors does not in express terms couple the issue and sale of the $400,000 of bonds with the previous proceedings authorizing the issuance of $800,000 of bonds. The fact that when the proposition for the issu- ance of $800,000 was ratified by a vote of the electors, the plan in con- templation was to bring water from the Stanislaus River sufficient to irrigate one hundred and eight thousand acres, and that the order for the issuance and sale of $400,000 was made after a change in the dis- trict and a change of plan contemplating the bringing of the water from the Tuolumne River sufficient only for the irrigation of eighty thousand acres, does not destroy the relation between the last order for the sale of bonds and the original authority to issue them. The authority to issue bonds is wholly independent of the source of supply of water or any plans for obtaining it. There is nothing in the law to prevent the Directors from changing their plans in this respect whenever they find it to the advantage of the district to do so. And any order they may make for the issuance and sale of bonds must be referred to the proceed- ings by which alone such order is authorized, whether they are expressly referred to or not. The Superior Court did not err in refusing to try the case de novo after the filing of the amended petition. All the evidence that had been taken was applicable to the issues formed by the amended pleadings, and, indeed, the principal object and only effect of the amendments to the petition was to make it conform to the evidence already in. It would, therefore, have been a mere waste of time, as well as a most unusual practice, to have introduced anew the evidence already before the Court. It is contended that the Board of Directors never had any authority to issue any bonds of the district, because no legal notice was given of the special election at which the proposition to issue bonds was sub- mitted to a vote of the electors. The point of this objection is that the general notice prescribed by Section 5 of the Wright Act (Stats. 1887, p. 31) was not posted in the office of the Board. But this was a special election held under Section 15 of the Act, page 35, and the notices prescribed by that section were duly given. As we construe the law, that section applies to such special elections, to the exclusion of Section 5. It is contended that this judgment cannot be sustained, because the proceeding was commenced before any bonds had been issued. Accord- ing to appellant's construction of the supplemental Act, no proceeding can be commenced under it until bonds have been actually issued. — 69 — There may be something in the literal terms of the title, and one or two clauses of the Act, to countenance this construction, but, read as a whole, and with reference to its manifest purpose and the evil it was intended to correct, it must be construed as allowing the proceeding to be commenced as soon as any resolution has been adopted for the issue and sale of bonds. Finally, it is contended by appellant that the authority originally granted to the Directors to issue bonds to the amount of $800,000, at the time when the district embraced one hundred and eight thousand acres, ended with the order excluding twenty-eight thousand acres; for, he says, even if the Legislature intended to bind the new, or reconsti- tuted, district, by a vote of the old district, the law to that extent would be unconstitutional. (Citing Sections 11, 12, and 13 of Article XI of the Constitution of California, and Section 10, Article I of the Constitution of the United States.) If, after this district had actually incurred a debt by the issuance of bonds, a portion of the lands of the district had been excluded without the consent of the owners of the lands remaining, the argument of appellant on this point would have had much force, and would at least have been deserving of serious consideration. But the facts being that at the time of the exclusion of twenty-eight thousand acres from this district it had no debt, and that after notice of the proceeding no objec- tion was made to such exclusion by any person, there is no basis for any claim of injustice or violation of constitutional rights. The identity of the district was not destroyed by the exclusion of a part of its lands. Those who remain in the district will receive all the benefits of the expenditures of the proceeds of its bonds; they will not be compelled to pay for anything for the benefit of others. Nor is there anything in the law to compel the Directors of the district, as constituted, to expend the whole amount of bonds authorized, if such amount shall not be needed. The provision of Section 15 for the issuance of the bonds voted is merely directory, leaving it in the discretion of the Board to issue and sell such amount of bonds, within the amount voted, and at such times, as they may find expedient. Upon a review of the whole case, we conclude that all the proceedings examined, approved, and confirmed by the Superior Court were regular and valid, but that the Court did not acquire jurisdiction to confirm the order or resolution of January 3, 1888, for the issuance of $800,000 of the bonds of the district in this proceeding. That order, however, is not essential to the validity of the order for the issuance and sale of $400,000 of bonds, which depends upon and is sustained by the other proceedings for the organization of the district, and the issuance of bonds. It is therefore ordered that the judgment and decree of the Superior Court be and the same is hereby modified by striking out so much thereof as confirms said order of January 3, 1888, for the issuance of $800,000 of bonds of respondent, and, as so modified, the judgment and decree, as well as the order overruling appellant's motion for a new trial, are affirmed. • McFarland, J., Patersox, J., and Sharpstein, J., concurred. INDEX. APPEALS— Page. Section. On petition to confirm acts of Directors - 29 5 ASSESSMENTS— Board of Directors must equalize 13 20 Book of, of what evidence... 17 81 Collector, duty of in receiving payments 14 24 Collector must give notice when payable... 14 24 Delinquent, amount to be collected on 15 26 Delinquent list, notice of sale 15 25 Delinquent list, what to contain 14,15 25 Delinquent, notice of sale 15 25 Delinquent, publication of 14, 15 ^ 25 Delinquent sale, certificate of --- 15, 16 27, 28 Delinquent sale, Collector's book open to inspection 16 28 Delinquent sale, deed of what evidence . 17 30 Delinquent sale, deed what should recite 17 30 Delinquent sale, designating part desired to be sold 15 27 Delinquent sale, district may purchase, when 15, 16 27 Delinquent sale, district purchasing, rights of 16 27 Delinquent sale, how conducted 15 26 Delinquent sale, lien passes to purchaser 16 28 Delinquent sale, misnomer or mistake does not affect purchaser... 17 32 Delinquent sale, purchaser entitled to deed when 16, 17 29 Delinquent sale, redemption law made 16, 17 29 Delinquent sale, redemption within what time may be made... .. 16 29 Delinquent sale, resale for non-payment of bid 15 27 Delinquent sale, title of purchaser.. 17 30 Delinquent sale, within what time to be made 15 26 Delinquent, when 14 24 Duty of Directors in equalizing -- 13 21 How collected where Collector or Treasurer refuses to act 13 22 How made - 12 18 How made and levied where Directors refuse to act 13 22 Levy and collection of, need not follow Constitution 30 Levying where bonds insufficient 11 15 Lien against property 14 23 Must be paid into District Treasury 13 22 Notice of meeting of Directors to equalize 13 20 Notice of timeof delinquency 14 24 Property which has escaped prior assessments 12 18 Refunding to persons whose lands are included 27,28 18 Secretary must compute . . 13 22 Special, how levied 20 41 When to be completed... 13 20 ASSESSOR— Bond of... - - ---- 5 4 ASSIGNMENT— Right of owner to water may be assigned 8 11 BONDS— Approval of... - " 4 Bondholders, assent of to exclusion of lands 26 6 Condition different from statute requirement does not avoid when. 37 Contractor must give bond 35 Denomination and form -■ 10 15 Drawn so as to be each payable in installments, are valid 38 Exclusion, effect of on authority to issue 52 Formalities necessary in selling... .- H, 12 16 Interest on --- 10 \& Lien for, preferred to that for subsequent issues 14 26 New, allowing to be filed for defective and continuing hearing 37 • New, exchanging for old issue 11 15 New, may be issued in place of old issue 11 15 Notice of sale, contents, and publication 11, 12 16 Payable from assessments levied - --- 12 17 Question of issuance may be submitted to electors 10 15 Recording and filing.. - 6 4 — 72 — BONDS— Continued. Page. Record of sale of, must be kept 10 Redemption, bids for 17, 18 Redemption, investment where no bids made 18 Redemption, notice of 17 Redemption, when may be redeemed... ... 17 Required of petitioners, reference to petition 37 Sale must be to highest bidder 21 Sale, not for less than ninety per cent of face value 12 When payable 10 BOUNDARIES— Change shall not affect rights or contracts 22, 25 Conflicting, which prevail 37 Description in the order establishing boundaries 37 Effect of inclusion or exclusion... 24,27 Exclusion creates vacancy m office of Director, when 27 Exclusion, effect of on authority to issue bonds... 52 Exclusion of lands, assent of bondholders 26 Exclusion or inclusion of lands does not affect rights or contracts. 22, 25 Filing petition to change among minutes of Board 24 Lands may be excluded from district .25 Land not benefited must not be included 4 May be changed 22, 25 Notice of petition to include contiguous lands 22, 23 Order changing to be filed : 24 Order for excluding, filing of 27 Order for excluding land 27 Owners may file petition to include lands 22 Owners may file petition to exclude lands.. .... 25 Parol evidence competent to establish 37 Petition to exclude lands 25 Petition to exclude lands, effect of, and of failure to object 26 Petition to exclude lands, hearing of 26 Petition to exclude lands, notice of 25 Petition to exclude, right to grant or deny 26 Petition to include contiguous land 22 Petition to include contiguous lands, assessment on granting 23 Petition to include contiguous lands, effect of, and of failure to object 23 Petition to include contiguous lands, granting against objection of owners 23 Petition to include contiguous lands, hearing of 23 Petition to include contiguous lands may be rejected 23 Petition to include contiguous lands, order on granting 23 Power of Supervisors to change, establish, and define 3, 4 Rules for construction 37 COLLECTORS— Bond of 5 Fee for making deed ■. 17 Settlement of, for collections, with Secretary 17 CONFIRMATION— Appeal on petition to confirm acts of Directors 29 Costs on petition to confirm acts of Directors 29 Decree confirming all orders, alleged effect where amended petition filed without notice 51 Directors may begin proceedings to confirm acts 28 Errors which must be designated on petition for 29 Evidence that city lots included for fraudulent purposes 51 Evidence that city lots included were not benefited 51 Judgment of, based on publication of notice, conclusiveness of 45 Jurisdiction and power of Court on petition to confirm 29 New trial on petition to confirm 29 Notice by publication or posting of petition for, is sufficient 45, 51 Notice of petition for, need not state prayer of petition 51 Notice of petition for, what sufficient 51 Notice of petition to confirm 28 Not refused, because land excluded where no bonds issued 51 Personal notice to members of district is unnecessary 45, 51 Petition for, lies before bonds actually issued , 52 Petition to confirm acts, may be filed' 26 Petition to confirm, Court shall fix time for hearing 28 Petition to confirm, failure to answer or deny 28, 29 Petition to confirm, one interested may answer or demur 28 Petition to confirm, procedure governing answer and demurrer 28, 29 Petition to confirm, what should state 28 Section. 15 34 34 34 34 16 16 15 9, 10 10 6 1 11 1 2 1 3 10 9 8 2 2 2 4 4 3 5 2 5 7 4 6 6 9 4 29 33 5 5 1 5 2 3 4 4 4 2 73 CONFIRMATION— Continued. Page. Proceedings not set out in petition ... 51 Refusal of trial de novo on filing amended petition, not error when. 51 What shall be determined on hearing petition for 29 CONSTITUTIONAL LAW— Statute for organization of irrigation districts is valid ... 30, 45 CONTRACTS— Bond contractor must give 18 Debts not authorized, validity of 20 Notice calling for bids to construct works - -- 18 Officers must not be interested in. .. 20 Punishment of officer interested in... -- 20 To construct works, to whom awarded 18 COSTS— On petition to confirm acts of Directors 29 COUPONS— Treasurer must pay, on presentation 17 CROSSINGS— Right of way of irrigation works 19 DIRECTORS— Bonds may be used in payment on purchase of lands or water right. 9 By-laws, rules, and regulations of, must be printed ... 8 Cannot contract debts not authorized 20 Compensation of 19 Debts not authorized, validity of 20 Exclusion, when vacates office of Director 27 May be elected from district at large, when T 4, 5 May construct dams and reservoirs 9 May enter lands to survey and locate works... 9 May hold and manage property of district 9 May maintain and defend suits 9 May purchase or condemn lands and water rights 9 May sell bonds to meet requirements... 11 May take conveyances in name of district 9 Meetings, collateral attack on 37 Meetings must be public ...... 8 Meetings, quorum 8 Meeting, special, how ordered 8 Meeting, special, order for, what to contain 8 Meetings, special, what business may be transacted at 8 Meetings, when and how often to be held 8 Meetings, when regular 37 Must keep waters flowing to full capacity of ditch 21 Must levy assessments to meet interest and principal i 13 Must not be interested in contracts 20 Number, changing from five to three 4, 5 Number of 4, 5 One to be elected from each division in district 4 Powers of ... --- 8 Power to deposit funds with County Treasurer 18 Procedure in case of continuation of lands or water right 9 Records to be kept open 8 Three members must concur 8 Time of meeting and organization 8 Vacancy, Supervisors may fill 8 ELECTIONS— Ballots, form of and what to contain 4, 6 Ballots, when and how counted 6, 7 Boards of, must appoint Clerks of Elections 6 Canvassing returns, time of . 7 Canvass of returns must be public 7 Canvass of votes cast 4 Contesting because vote not properly counted 7 Certificates of votes cast, drawing up 7 Certificate of votes cast, Inspector must retain one 7 Declaring election of officers. 7, 8 Declaring organization where two-thirds vote in favor 5 Election Board, what officers constitute... 6 How conducted... 4 Inspector is Chairman of Election Board 6 Inspector, powers of 6 Irregularity in form of list, tally paper, or certificate 7 Notice of election for organization 4 Notice of elections held after organization... 6 Notice of publication of 4 Section. 35 42 35 40 40 35 34 12 11 42 39 42 10 2,3 12 12 13 14 12 16 14 12 12 12 12 12 12 44 22 40 2,3 2,3 2 11, 12 36 12 12 12 11 10 2,3,7 7,8 6 9 9 3 8 8 8 10 3 5 3 6 6 9 2 5 9 Section. 2 — 74 — ELECTIONS— Continued. Page . Notice of, what to contain 4 Oaths, who may administer "" 6 Officers, electors may appoint on failure to appoint or "attend-"- 6 5 Officers must take oath .. g g Officers of, appointment of.. ...... """ 6 5 Polls, how long to be kept open "."""" 6 6 Precincts, duty to establish ......... 5 3 Precincts, established where contiguous lands added..". "".J ~ 24 13 Precincts, when to be established ..." 38 Preservation of ballots and election papers ......... '"' 7 8 Publication of proclamation, number of insertions """"" 38 Publication, slight mistakes in will not vitiate " 37 Qualifications of electors . 4 2 Reasonable publications, instances of '.'.'.'.'...'.'..'.'. 38 Sealing ballots and papers '_'_" """ 7 g Special, for issuing bonds, form of ballots ........ """ "" 10 15 Special, for issuing bonds, irregularities will not avoid " 10 15 Special, for issuing bonds, may be called 9 10 15 Special, for issuing bonds, notice of ' 10 15 Special, for special assessment, ballots """_" 20 41 Special, for special assessment, notice of ...... 20 41 Special, for special assessment, two-thirds vote necessary"."!" 20 41 Special, to levy special assessment 20 41 Statement of result must be entered in minutes of Board ~_\ "7 10 Statement of result, what must show _ 7 10 Time of holding _' 5 3 To determine whether lands shall be excluded." 1 1" "I ~ I " 26 7 To determine whether land be excluded, how conducted " 27 7 To determine whether land be excluded, notice of 26 27 7 To determine whether land be excluded, proceedings where major- ity favors . 27 8 To determine whether land be included", how conducted-"-" "111111 23, 24 8 To determine whether land be included, proceedings where major- ity favors _ _ 24 9 To determine whether land be included, notice of " 23 24 8 Validity not to be contested after two years ' 5 8 Voting, how conducted " 6 7 Voting, when may commence ...... 6 7 What notice sufficient on special election for issuing bonds .... 52 EMINENT DOMAIN— Directors may condemn land or water rights 9 12 Procedure in case of condemnation of land or water right 9 12 Public use, use of water required for irrigation 9 12 EXECUTOR— " May sign petition to include or exclude lands . 24 27 12 FINES— For violation of sanitary regulations or orders . 91 20 GUARDIAN— ' " " "" May sign petition to include or exclude lands .. 24 27 12 IRRIGATION DISTRICTS— ' Action in excluding lands is final as regards validitv of organization. 37 Application to include other lands need not be written 38 Are public corporations ._ 37, 45 Are quasi-public corporations ' 30 Bond accompanying petition, amount of 3 2 Bond, condition to pay costs 3 2 Cost of property and works to be paid from ConstructionFund '.'.'. 19 37 Description in petition, and in the order establishing boundaries .. 37 How organized 3 1 Land not included in the petition may be included 37 Land of city or town may be included 3 51 Lands of, not to be included in other districts 5 3 Must be divided into five parts 4 2 Notice of meeting must be given in every county where land lies. 3 2 Notice of meeting, when petition presented 3 2 Not to be contested after two years 5 3 Number of holders required to organize... 3 l Order establishing boundaries need not state reasons for exclusion. 38 Organization and running expenses, how paid 19 19 Order of, filing with Clerk of Supervisors in each county 5 3 Order of, must be filed with County Recorder 5 3 When complete 5 3 Petition must be accompanied by bond ' 3 2 Petition must be signed by required number of holders 3 2 — 75 — IRRIGATION DISTRICTS— Continued. Page. Section. Petition must be presented at regular meeting of Board 3 2 Petition must be presented to Board of Supervisors 3 2 Petition, publication in each county where land lies . 3 2 Petition, publication of 3 2 Proceedings for formation to be liberally construed . 37 Redividing where land excluded 27 11 Redividing where land included 24 13 Right of owner to have land included 4 2 Supervisors, discretion in including town not reviewable 51 Title of petitioner for, what evidence of sufficient ' 3 1 Vacancy created by excluding land, filing of 27 10 MINES— Water rights of, not to be affected 21 45 NAVIGATION— Not to be impaired 21 45 MISDEMEANOR— Officers being interested in contract... 20 40 NEW TRIAL— On petition to confirm proceedings 29 4 OFFICERS— Appointed, term of 8 10 Bonds required of 5 4 Certificate of election, issuing 8 10 Directors of district may fill vacancy 8 11 Qualifying _. 5 4 Terms of 5 4 What officers to be elected 5 3 When may enter on duties of office. 5 3 PUBLIC USE— Use of water required for irrigation 9 12 RIGHT OF WAY— Across State lands 19 38 Railroads, duty of, as regards 19 38 Works may be constructed across any stream, railroad, or highway 19 38 SALARIES— Officers, Directors shall fix ... 19 39 Petition of electors to fix 19, 20 39 Schedule of, may be submitted to electors on petition 19 39 SUPERVISORS— Duty to hear petition •_ 3 2 Power to adjourn hearing 3 2 title- to property acquired under irrigation Acts.. 9 13 TREASURER— Bond of 5 4 Claims, how must be drawn... 18 36 County, duty to report . 18 26 County, duty to receive funds of district 18 36 County, upon what warrants, and to whom, funds paid 18 36 Duty to report 19 36 WATERCOURSES— Apportionment of, where insufficient 20, 21 43 Diversion to injury of vested rights not allowed without compensa- tion 21 46 How apportioned 8 11 Must be kept Mowing to full capacity of ditches 21 44 UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. 1 4' no. * MAR 0^] Form L9-32»i-8,'57(,C8680s4)444 THE LI IX UNIVL CALIFORNIA! LOS ANGEL) PAM PHLET BINDER ^ZZI Syracuse, N. Y. ^^ Stockton, Calif. .,.,,:;„;,,;,,,!,* 1 fjv 000 279 929 ^