lands within the proposed district or by not less than five hundred land owners representing not less than ten per cent in value of the land. It is obvious that in a very large district it would be impracticable to secure the signatures of a majority of the land owners, and that in a very small district the signatures of ten per cent of the owners might not be regarded as sufficient evidence of the merits of the proposal. The line had to be drawn somewhere between these two differing conditions, and it cannot be justly said that the legislature acted "arbitrarily" in placing it where it did. Neither can it be said that this provision. violates section 21 of article I, in that it grants to one class of citizens privileges or immunities which upon the same terms are not granted to all, or that it violates the fourteenth amendment to the federal constitution, in that it denies to certain persons equal protection of the law. This court cannot say, nor could the legislature determine in advance, that it will require either greater or less effort to procure the signatures of a majority in one sort of district than it will to obtain the signatures of ten per cent in the other sort.

[5] In view of the legislative history of this act, there is no merit in the claim that in the provision that the district "may include the major portion of the lands situated within two or more district agencies of the state," the word "may" should be construed to mean "must."

If the provision in section 6, making the finding of the state engineer in certain matters conclusive against all persons except the state, should be held unconstitutional, it would in no way destroy or render useless the remainder of the act. [6] There is no merit in the point that this act is special because there is another act in effect which covers the same field of legislation. (Los Angeles v. Leavis, 119 Cal. 164 [51 Pac. 34].) Neither can it be said to be special because it provides that an affidavit shall be sufficient evidence of the genuineness of signatures to the petition. There are many provisions in the general laws and in the codes making affidavits competent evidence for specified purposes.

We come now to a more serious and difficult group of questions, presented by the claim that the act attempts to delegate legislative power to the state engineer in violation

of section 1 of article IV of the constitution, and that it requires him to exercise both legislative and judicial powers in violation of article III thereof. [7] Unquestionably, the creation of such a district is a legislative act, the performance of which may not be delegated by the legislature to an executive or judicial officer. (People v. Parks, 58 Cal. 624; Tulare Water Co. v. State Water Com., 187 Cal. 533 [202 Pac. 874]; Matter of Peppers, 189 Cal. 682 [209 Pac. 896].) [8] On the other hand, it is equally well settled that the legislature may enact conditions, upon the performance of which the district shall be regarded as organized with the powers mentioned and described in the act; and it may intrust the doing of an act or the determination of a fact, upon which those conditions depend, to some other agency. (Inglin v. Hoppin, 156 Cal. 483 [105 Pac. 582]; Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112 [41 L. Ed. 369, 17 Sup. Ct. Rep. 56, see, also, Rose's U. S. Notes]; Field v. Clark, 143 U. S. 649 [36 L. Ed. 294, 12 Sup. Ct. Rep. 495]; In re Madera Irr. Dist., 92 Cal. 296 [27 Am. St. Rep. 106, 14 L. R. A. 755, 28 Pac. 272].) If, as claimed by respondents, this act attempts to vest in them arbitrary power and authority, or an uncontrolled and unguided discretion, in matters essential to the creation of the proposed district, it is, to that extent, void (People v. Parks, supra; Tulare Water Co. v. State Water Com., supra; Riley v. Chambers, 181 Cal. 589, 595 [8 A. L. R. 418, 185 Pac. 855]). [9] On the other hand, the legislature may, without violating any rule or principle of the constitution, confer upon an administrative officer a large measure of discretion, provided the exercise thereof is controlled and guided by rules prescribed therefor (Arwine v. Board of Medical Examiners, 151 Cal. 499 [91 Pac. 319]; Hall v. Geiger-Jones Co., 242 U. S. 539, 553 [Ann. Cas. 1917C, 643, L. R. A. 1917F, 514, 61 L. Ed. 480, 37 Sup. Ct. Rep. 217]), even though, in exercising that discretion, he may be called upon to exercise judgment of a high order. (Frasher v. Rader, 124 Cal. 132 [56 Pac. 979]; Cook v. Civil Service Com., 160 Cal. 589, 592 [117 Pac. 663]; Suckow v. Alderson, 182 Cal. 247 [187 Pac. 965]; People v. Sacramento Drainage Dist., 155 Cal. 373 [103 Pac. 207].)

The difficulty herein lies not so much in the ascertainment of the settled rules of constitutional law as in their

correct application to the various provisions under consideration. [10] The provision in section 1 authorizing the state engineer to employ such engineers, attorneys, and other assistants as he may deem necessary, and to fix their compensation, does not contravene the rule in Farrell v. Board of Trustees, 85 Cal. 408 [24 Pac. 868], for two reasons: First, because the assistants here provided for are not officers but mere employees; second, because the discretion as to the number to be employed is not unguided, as it was in the Farrell case. The phrase "such as he may deem necessary," as here used, is precisely analogous to the provision under consideration in the case of Riley v. Chambers, supra, and which was there held not to confer arbitrary power. It was there said: "While the commissioner has the power to refuse a license if he is not satisfied as to the character of the applicant, his discretion is not arbitrary. There must exist facts which reasonably justify his conclusion that the applicant is not of good character and reputation." Yet the law there under consideration did not expressly so state. This requirement was implied. therein.

[11] It is provided in section 5 that the engineer "shall ascertain and determine the practicability, feasibility and utility of the proposed project." This does not appear to be an attempted delegation of legislative or judicial power, because no consequences are made to depend upon such determination or to result therefrom. It calls rather for the performance of administrative functions, evidently intended only for information and guidance of voters.

[12] It is also provided that he may employ all necessary engineers, attorneys, and assistants; that the cost thereof shall be deemed a part of the expense of said project, and that he "may require the same to be paid by the proponents of said district, or he may issue warrants therefor." Section 16 requires the board of directors to levy an assessment of an equal amount per acre upon the land of such district to pay such warrants. This amounts, in effect, to an attempted delegation to the engineer of the legislative power to levy taxes. If he elects to issue the warrants, a mandatory duty is thereby imposed upon the directors to levy an assessment sufficient to pay the same; but if he elects to require these expenses to be paid by the proponents of

the district, the assessment will not be levied. Thus the decision to levy or not to levy this assessment is committed wholly to the discretion of the engineer, and in the exercise of this discretion he is uncontrolled and unguided by anything to be found in the act. If the act had made it the mandatory duty of the engineer to issue warrants for these necessary expenses and the mandatory duty of the direc tors to levy an assessment to pay those warrants, then it might well be said that such assessment was in fact levied, not by the engineer or by the directors, but by the legislature itself. But where, as here, the power to decide whether or not a given tax shall be levied is committed to the uncontrolled and unguided discretion of an executive officer, it amounts to such a delegation of legislative power as is prohibited by the constitution. It follows that the provision for the levy of an assessment for the payment of such warrants is void. This does not, however, render the act unworkable, because the engineer may require the necessary cost of these investigations to be paid by the proponents of the project.

[13] Section 6 provides that upon the final hearing the engineer shall make an order affirming the sufficiency of the petition and notice of hearing, and determining the practicability, etc., of the project, and "shall also in his said order establish the boundaries of the proposed district or describe the lands included therein, specify the location proposed for the storage of water to be used for any of the purposes of this act, and provide an estimate of the probable cost of the proposed project; and in so doing shall make such changes in any of the matters or proposals set forth in said petition as he may deem advisable. . ." It is claimed that these provisions purport to vest in the engineer the arbitrary power to make such changes in the boundaries of the proposed district, or in the location and character of the proposed works therein, as he may see fit, thus bringing this situation within the rule of People v. Parks, supra. We do not so construe the act. It seems apparent from a consideration of its various provisions, particularly those contained in sections 3, 5, and 6, that in establishing the boundaries of the proposed district the engineer can make changes in the boundaries of the district as proposed in but two classes of cases: (1) He can exclude land therefrom

when in response to objections filed by the owners thereof he finds as a fact that it is not of the character described in the act, i. e., "already irrigated or susceptible of irrigation from the common source and by the same system of storage and irrigation works"; (2) He can include other land therein when in response to petition filed by the owners thereof he finds as a fact that it is of the character described in the act. The authority to make changes other than these was evidently intended to apply only to the proposal or recommendation of such changes, in connection with providing an estimate of probable cost. It is obvious, for example, that the locations for the storage of water, either as proposed in the original petition, or as recommended by the engineer, would at the most be merely advisory upon the board of directors, and subject to change thereafter as the directors should deem best.

[14] The provisions for the division of the district into five to eleven divisions "possessing the same general character of water rights or interests," and for the establishment of "a convenient number" of election precincts, confer not arbitrary authority but a controlled and guided discretion dependent upon the facts ascertained. It is not necessary herein to determine whether the provisions of section 18, authorizing the engineer, under certain conditions to declare the project abandoned, and the provisions of section 53, authorizing him to determine when the public interest requires the making of certain investigations, are or are not valid. The practical operation of the law is in no way dependent upon either of them.

[15] We come now to the contention of respondents that the provisions of section 16, for the levy of assessments at a flat rate per acre upon all the lands of the district to defray the general expenses of the district, prior to any hearings on the question of benefits, require the taking of private property without due process of law. [16] The general rule on this subject is that a hearing as to benefits. must be provided at some time before the land is finally burdened by the assessment. (Fallbrook Irr. Dist. v. Bradley, supra; Nickey v. Stearns Rancho Co., 126 Cal. 150 [58 Pac. 459].) But this general rule is subject to an equally well-established exception, the existence of which is recognized by respondents and well stated in the following lan