THE WRIGHT LAW IN CALIFORNIA. 



229 



enemies of the district system, but many new ad- 

 herents to the movement have been secured on the 

 representation that if the law be declared unconstitu- 

 tional the people would still be the owners of the 

 irrigation systems in their respective districts, but 

 would be absolved from the obligation of paying for 

 them. Without entering into the details of this 

 question we will state that the opinion of the best 

 lawyers does not bear out this representation, and it is 

 generally held that the people whose money paid for 

 the works will have an equitable lien on them, and 

 that the people could only acquire a legal title to the 

 district property by satisfying this lien. At any rate 

 the bondholders would certainly contend for this in 

 the courts, and the present subscription to have the 

 Wright act declared unconstitutional will not be the 

 only one which the people in irrigation districts will 

 be called upon to pay, even if they are successful in 

 having the act set aside, with the chances that they 

 will gain nothing from all they have subscribed, as in 

 any event they will have to pay for the property or 

 give it up. If the property passes from them they . 

 will have a private corporation to deal with, from 

 which they will either have to buy water-rights or 

 rent them at a sufficient price to pay interest on the 

 investment. In either case the people within the 

 present irrigation districts will be the losers, as any 

 one knows that a private water company can not 

 furnish water as cheaply as an irrigation district. It 

 is the same old question of a private water company 

 in a city, or municipal ownership, only in another form, 

 and this question is so well settled in favor of munic- 

 ipal ownership that it is no longer debatable. 



POINTS RAISED IN THE DECISION. 



However, let us look slightly into the grounds of the 

 decision of Judge Ross and see the probability of its be- 

 ing sustained by the higher courts. In this decision 

 the law was declared unconstitutional on two grounds: 



(1) On the ground that it sanctions the taking of 

 private property for a purpose which is not public; and 



(2) On the ground that it provides for taking the 

 property of a person without due process of law. 

 Both of these are alleged to be features of the law and 

 being contrary to the Fourteenth Amendment of the 

 Constitution of the United States, the law is therefore 

 declared unconstitutional. 



The first question raised seems to be wholly de- 

 pendent upon the judgment of the court as to whether 

 irrigation is a public question and a public benefit, or 

 whether it is a strictly private matter, with which the 

 State and National governments have nothing to do, 

 and the second is wholly a matter of law, as to whether 

 the law in question contains provisions which are 

 arbitrary, and therefore deprive a person of a hearing 

 in regard to the taking of his property into the dis- 

 trict or the subsequent taking of it for delinquent dis- 

 trict taxes. 



In discussing the probability as to whether the 

 United States Supreme Court will agree with Judge 

 Ross, or the Supreme Court of California, it is interest- 

 ing to note the opinion in the case of Hager vs. Rec- 

 lamation District No. 108, U. 8. Ill, 701, which is a 

 California case under the act for reclaiming swamp 

 and overflowed lands. In this case the court decided 

 that the reclamation of swamp land was a public, 

 benefit and not solely a thing benefiting the owner of 

 the property. In view of this it is hard to see how 

 the same court can decide that reclaiming a desert is 

 any less a public benefit than reclaiming a swamp. 

 Both are useless for agricultural purposes without be- 

 ing reclaimed and in each case is the cost of reclama- 



tion greater than can be borne by one individual. The 

 private benefits are in either case the same, the property 

 of individuals being greatly enhanced in value by the 

 improvement, while on the other hand the benefits to 

 the public are great. The taxable property of the State 

 is increased, production and population are augmented, 

 and commerce and immigration are promoted in the 

 whole State, and the general health, prosperity and 

 comfort of the whole people of the State are im- 

 proved by the local improvements contemplated 

 under either act. 



It would be hard to say which is productive of the 

 greater public benefits in the respects mentioned, the 

 reclamation of swamp and overflowed lands or deserts, 

 and it would seem that a court which has declared 

 the improvement of the former a public benefit 

 would have to reverse its own judgment in order to 

 declare the latter of solely private benefit. 



But irrigation is not only of public importance for 

 the benefits which it can confer on the community 

 where it is practiced, and on the State at large, but 

 the safety of the public demands that it be exercised 

 under government control in all respects. It is well 

 known that the construction of irrigation works must 

 be carried out in accordance with certain principles in 

 order to insure the stability and safety of the works 

 erected. Is the public interested in such stability and 

 safety? If it is possible for irrigation works to fail 

 and cause damage to the public I would say, yes. 

 The failure of such works can, in more ways than 

 one, concern the public safety. Not only does the 

 property of that portion of the community depending 

 on the system for water suffer by reason of such fail- 

 ures, but the giving way of dams or other structures 

 erected for retaining and conserving large quantities 

 of water may cause a widespread public calamity and 

 great loss of life. The Wright District Law in Cali- 

 fornia fully recognizes the importance of this public 

 phase of the question and directs that works of this 

 character shall be designed by a competent civil engi- 

 neer employed by the board of directors for that 

 purpose. 



Judge Ross, in his decision against the constitution- 

 ality of the law, argues that because the same provides 

 for the distribution of the water acquired by the dis- 

 tricts for irrigation purposes to the landowners within 

 the districts and not to the whole public therein, the 

 purpose of the act cannot be considered a public one. 

 The distribution of the water for irrigation is only the 

 means to an end; namely, thereby the desert land is 

 reclaimed and made productive in the same way as 

 the draining of swamp land is only the means by 

 which it is reclaimed. A law providing for distribu- 

 tion of water to all living within a certain territory, 

 irrespective of whether they are contributors to the 

 revenues and can be benefited by the use of the 

 water, would be a miscarriage of the purposes of the 

 law and would not result in the reclaiming of the 

 desert land sought to be reclaimed, and would there- 

 fore fall far short of being a public benefit. On the 

 other hand, the apportioning of the water to the tax- 

 payers (only real estate and improvements in an irri- 

 gation district are taxable) in proportion to the taxes 

 they pay, fulfills all the requirements of a law for 

 local public improvements; namely, that benefits 

 must, as nearly as possible, be apportioned according 

 to contributions exacted and the benefits must also 

 actually result from the means provided to accomplish 

 them. What benefit could be accomplished to the 

 public by distributing water for irrigation to those 

 who can not use it for the purpose of reclaiming the 

 desert land in the district? The public benefit sought 



