tricts shall have the powers conferred, or that may hereafter be conferred, by law upon such irrigation districts."

This act was amended in 1889 and 1891 (St. Cal. 1889, p. 15; St. 1891, pp. 53, 142, 147, 244), the amendments looking to a mere perfection of the system. In a general way, it may be remarked that the system contemplated was substantially this: Upon petition of the requisite number of inhabitants of a proposed district, and publication of notice, the board of supervisors of the county in which the district, or the larger portion of it, was situated was required to examine into the matter at a regular meeting, and, after its determination, to give notice and call an election, at which all the electors of the proposed district were entitled to vote. If two-thirds of the votes cast were in favor thereof, an order was to be entered on the minutes of the board declaring the proposed district organized into a municipal corporation. Provision was made for directors, three or five in number, to be elected from separate divisions, or from the district at large, who constituted the governing board of the new corporation. They had charge of the construction of the irrigation works, of the levy of taxes, and the borrowing of money. They were authorized to submit to the voters the question of issuing bonds for a specified amount, such bonds to be the obligations of the district, and to be paid by taxation in the ordinary manner of discharging municipal obligations. Section 12 reads that "the use of all water required for the irrigation of the lands of any district formed under the provisions of this act, together with the rights of way for canals and ditches, sites for reservoirs, and all other property requir ed in fully carrying out the provisions of this act, is hereby declared to be a public use, subject to the regulation and control of the state, in the manner prescribed by law."

This was simply carrying into the statute the language of the state constitution (section 1, art. 14), which is as follows:

"Section 1. The use of all water now appropriated, or that may hereafter be appropriated, for sale, rental, or distribution, is hereby declared to be a public use, and subject to the control and regulation of the state, in the manner to be prescribed by law."

The constitutionality of this law has been settled in the case of Irrigation Dist. v. Bradley (just decided) 17 Sup. Ct. 56.

On February 16, 1889, two acts were passed (St. Cal. 1889, pp. 18, 21), for changing the boundaries of irrigation districts, by taking in adjacent territory, or excluding some of the territory within the original boundaries. On March 16, 1889 (St. Cal. 1889. p. 212), a further act was passed, authorizing action in the courts at the instance of the board of directors for a judicial determination of the validity of the proceedings in respect to the issue of bonds, and this, if desired, before

the bonds had been actually disposed of. The purpose of this act is thus stated by the supreme court of California, in the opinion filed in the present case:

"As the validity of the bonds when issued depends upon the regularity of the proceedings of the board, and upon the ratification of the proposition by a majority of the electors, it is 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 instituted was passed."

*

In the summer of 1887 the Modesto irrigation district was organized, under authority of the act of March 7, 1887. The conformity of the proceedings taken in its organization to the requirements of the act is not denied. The area of the district as organized was 108,000 acres. The board of directors, after estimating and determining that $800,000 were necessary for the proper construction of the irrigation works, ordered a special election to be held on December 14, 1887, to enable the voters of said district to pass upon the question of the issue of bonds to that amount. The election was had, and resulted in a large majority in favor of the issuing of the bonds. Out of 515 votes cast, 439 were in the affirmative. On January 3, 1888, the board of directors met at a regular meeting, and ordered the bonds of the district to the amount of $800,000 to be issued in the manner and form prescribed by law. On or about June 4, 1889, certain parties owning tracts of land within the boundaries of the irrigation district proceeded, under the terms of the exclusion act, to petition for an exclusion of their lands from its limits. These proceedings culminated in an order of July 20, 1889, excluding a tract of 28,000 acres, and leaving only 80,000 acres within the district. On July 31, 1889, no bonds having as yet been issued under the order of January 3, 18SS, the board of directors entered a new order for the issue of bonds to the amount of $400,000. The resolution which was passed described the denomination and form of the bonds thus to be issued, and directed that notice be given that sealed proposals would be received up to September 3. 1889, for the purchase of such bonds. On August 1, 1889, the day after the entry of the last order, a petition was filed by the board of directors in the superior court of Stanislaus county, seeking a judicial determination, in accordance with the act of March 16, 1889, of the validity of the proposed issue of bonds. The petition as filed set forth only the order of July 31. 1889, for the issuance of bonds to the amount of $400,000, and asked that they be declared valid. In these proceedings. Tregea, a resident of the district, appeared, and filed an answer. The case, as between the board of

time to time the bonds of said Irrigation district to the amount of eight hundred thousand dollars."

The defendant appealed from this judgment and decree to the supreme court of the state, which, on March 19, 1891, modified the decree of the superior court by striking out so much thereof as confirmed the order of January 3, 1888, for the issue of $800,000 of bonds of the district, and, as so modified, affirmed it. The opinion of that court is found in 88 Cal. 334, 26 Pac. 237. To reverse this judgment of the supreme court of the state, the defendant sued out a writ of error from this court.

"Wherefore, by reason of the law and the finding aforesaid, it is ordered, adjudged, and decreed that the proceedings by and under the direction of the board of supervisors of said county, which are recited in the said findings, which were had for the organization of said irrigation district, the boundaries of which are described in said finding, including in said proceedings the election in said finding mentioned, which was held for the purpose of determining whether said proposed district should be organized as an irrigation district, be, and the same hereby are, approved and confirmed; and it is further ordered, adjudged, and decreed that the proceedings had by and under the direction of the said board of directors, which are recited in said petition and said findings, which were had for the purpose of the issue and sale of the bonds of said district to the amount of eight hundred thousand dollars, including in said proceedings the said election mentioned in said petition and findings, which was held for the purpose of determining whether the bonds of said district should be issued, also the proceedings by and under the direction of said board, which are recited in said findings, by which a certain tract of land in said findings described, which was included within the boundaries of said district as it was organized as aforesaid, was excluded from said district, and by which the boundaries of said district are defined and described as said boundaries were and remained upon and after the exclusion from said district of said tract of land, which said boundaries are in said findings described, and also the proceedings by and under the direction of said board by which it was ordered that bonds of said district to the amount of four hundred thousand dollars, parcel of said amount of eight hundred thousand dollars of said bonds, be offered for sale in the manner provided by law, be, and each and all of said proceedings is and are hereby, approved and confirmed; and it is further ordered, adjudged, and decreed that the said Modesto irrigation district, ever since its organization as aforesaid, has been, and now is, a duly and legally organized irrigation district, and that said irrigation district possesses full power and authority to issue and sell from

Thomas B. Bond, for plaintiff in error. C. C. Wright, A. L. Rhodes, John F. Dillon, and

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

A motion was made to dismiss this case on the ground of the lack of a federal question. It appears from the opinion *of the supreme court of the state that the defendant contended before it that the attempt to bind the reconstituted district-that is, the district diminished by the exclusion of 28,000 acres, and in which his property was situated-by a vote of the district prior to such exclusion, in respect to the issue of bonds, was in violation of section 10 of article 1 of the constitution of the United States; and that it overruled and denied such contention. So, there was considered by the supreme court of the state the distinct question of an alleged conflict between the proceedings confirmed by the decree of the lower court and rights claimed under the constitution of the United States, and the decision was against those rights. Further, the real contention of the defendant was and is that the operation of this statute is to deprive him of property without due process of law. The burden of his case from the first has rested in the alleged conflict between proceedings had under the irrigation statute and the federal constitution; so that, beyond the express declaration in the opinion of the supreme court of the state, we may look to the real matter in dispute, and these unite in forbidding us to say that no federal question was presented. The motion to dismiss on that ground must be overruled.

But, going beyond this matter, we are confronted with the question whether, in advance of the issue of bonds, and before any obligation has been assumed by the district, there is a case or controversy with opposing parties, such as can be submitted to and can compel judicial consideration and judgment. This is no mere technical question; for, notwithstanding the adjudication by the courts of the state in favor of the validity of the order made for the issue of $400,000 of bonds, and, notwithstanding any inquiry and determination which this court might make in respect to the matters involved, there would still be no contract

executed; no obligation resting on the district. All that would be accomplished by our affirmance of the decision of the state court would be an adjudication of the right to make a contract, and, unless the board should see fit to proceed in the exercise of the power thus held to exist, all the time and labor of the court would be spent in determining a mere barren right,-a purely moot question.

We are not concerned with any question as to what a state may require of its judges and courts, nor with what measures it may adopt for securing evidence of the regularity of the proceedings of its municipal corporations. It may authorize an auditor or other officer of state to examine the proceedings, and make his certificate of regularity conclusive evidence thereof, or it may permit the district to appeal to a court for a like determination; but in either event it is a mere proceeding to secure evidence.

The directors of an irrigation district occupy no position antagonistic to the district. They are the agents, and the district is the principal. The interests are identical, and it is practically an ex parte application on behalf of the district for the determination of a question which may never in fact arise. It may be true, as the supreme court say, that it is of advantage to the district to have some prior determination of the validity of the proceedings in order to secure the sale of its bonds on more advantageous terms, but that does not change the real character of this proceeding.

This is not the mere reverse of an injunction suit brought by an inhabitant of the district to restrain a board from issuing bonds, for in such case there is an adversary proceeding. Underlying it is the claim that the agent is proposing to do for his principal that which he has no right to do, and to bind him by a contract which he has no right to make; and, to protect his property from burden or cloud, the taxpayer is permitted to invoke judicial determination. If, in such suit, an injunction be granted, as is prayed for, the decision is not one of a moot question, but is an adjudication which protects the property of the taxpayer.

The power which the directors claim is a mere naked power, and not a power coupled with an interest. It is nothing to them, as agents, whether they issue the bonds or not. They neither make nor lose by an exercise of the alleged power; and, if it be determined that the power exists, still no burden is cast upon the property of the district, because no bonds are issued save by the voluntary act of the board.

It may well be doubted whether the adjudication really binds anybody. Suppose the judgment of the court be that the proceedings are irregular, and that no power has been by them vested in the district board, and yet, notwithstanding such decision, the board issues, as provided by the act, the negotiable bonds of the district; will a bona fide purchaser of those bonds be estopped by that judgment from recov ering on the bonds against the district? The

doctrine of lis pendens does not apply. Neither is any such adjudication binding in respect to negotiable paper, unless the party purchases with knowledge of the suit or the decree. County of Warren v. Marcy, 97 U. S. 96; Brooklyn v. Insurance Co., 99 U. S. 362; Orleans v. Platt, Id. 676; Cass Co. v. Gillett, 100 U. S. 585; Empire v. Darlington, 101 U. S. 87; Thompson v. Perrine, 103 U. S. 806; Carroll Co. v. Smith, 111 U. S. 556, 4 Sup. Ct. 539, 542; Scotland Co. v. Hill, 112 U. S. 183, 5 Sup. Ct. 93.

The case of Carroll Co. v. Smith is instructive on this question. In that case, before the issue of the bonds in suit, an injunction had been issued by the chancery court of the county enjoining the county officials from issuing and delivering the bonds, which injunction was afterwards sustained, and made perpetual by the judgment and decree of the supreme court of the state, notwithstanding which the county officials fraudulently and illegally issued the bonds, and this court sustained a judgment on those bonds in favor of a bona fide holder, saying in the opinion: "The defendant in error was no party to that suit, and the record of the judgment is therefore no estoppel. The bonds were negotiable, and there was therefore no constructive notice of any fraud or illegality by virtue of the doctrine of lis pendens. County of Warren v. Marcy, 97 U. S. 96. It is not alleged in the plea that the defendant in error had actual notice of the litigation, or of the grounds on which it proceeded, or that any injunction was served upon the board of supervisors; and, if he had, that notice would have been merely of the question of law, of which,✩ as we have seen, he is bound to take notice, at all events, and which is now for adjudication in this case."

The case of Scotland Co. v. Hill, supra, contains nothing in conflict with this, for that determines only the effect of actual notice of the pendency of a suit, the point of the decision being expressed in these words of the chief justice:

"The case of County of Warren v. Marcy, 97 U. S. 96, decides that purchasers of negotiable securities are not chargeable with constructive notice of the pendency of a suit affecting the title or validity of the securities; but it has never been doubted that those who buy such securities from litigating parties, with actual notice of the suit, do so at their peril, and must abide the result the same as the parties from whom they got their title."

But, if a judgment in such a proceeding as this cannot be invoked by the district as res judicata in an action brought against it by the holders of bonds thereafter wrongfully issued, can a judgment in favor of the power be invoked by the holder of such bonds as conclusive upon the district upon the ground of res judicata? In order to create estoppel by judgment, must there not be mutuality? We do not mean to intimate that it may not have effect as evidence, like the certificate of an auditor declared by a legislature to be con

clusive; but is it not simply as evidence, and not as res judicata?

Some light may be thrown on this question by reference to a matter of a somewhat kindred nature. In states which provide for the organization of corporations under general statute different modes of procedure are prescribed. In some states it is sufficient for the parties desiring to incorporate to prepare a charter, acknowledge it before some official, and file it with the secretary of state or other public officer, and the certificate of such officer is made the evidence of the incorporation. In other states the parties may file a petition in some court, and that court, upon presentation thereof, examines into the propriety of the incorporation, and, if satisfied thereof, enters a decree declaring the petitioners duly incorporated; and the copy of such decree is the evidence of the incorporation. Does the difference in procedure between these two cases create any essential difference in character? Is the one executive, and the other judicial? Suppose, in the latter case, the statute had provided that either one of the petitioners might appeal from the decree of a lower to the supreme court of the state, in order to obtain a final adjudication in favor of the propriety of such incorporation; would this court entertain a suit in error to reverse such adjudication by the highest court of the state? Would it not be held, in effect, whatever the form, a mere ex parte case to obtain a judicial opinion, upon which the parties might base further action? It seems to us that this proceeding is, after all, nothing but one to secure evidence; that, in the securing of such evidence, no right protected by the constitution of the United States is invaded; that the state may determine for itself in what way it will secure evidence of the regularity of the proceedings of any of its municipal corporations; and that unless, in the course of such proceeding, some constitutional right is denied to the individual, this court cannot interfere on the ground that the evidence may thereafter be used in some further action, in which there are adversary claims. So, on this ground, and not because no federal question was insisted upon in the state court, the case will be dismissed.

Mr. Justice HARLAN, Mr. Justice GRAY, and Mr. Justice BROWN are of opinion that, as the judgment of the state court was against a right and privilege specially set up and claimed by the plaintiff in error under the constitution of the United States, such judgment, if not modified or reversed, will conclude him, if not all holders of taxable property in the Modesto irrigation district, in respect of the federal right and privilege so alleged; consequently, it is the duty of this court to determine, upon its merits, the federal question so raised by the pleadings, and determined by the judgment of the state court. They are also of opinion that the principles announced in Irrigation Dist. v. Bradley (just

decided) infra, sustain the conclusions of the state court upon this federal question, and require the affirmance of its judgment.

(164 U. S. 112)

FALLBROOK IRRIGATION DIST. et al. v.
BRADLEY et al.
(November 16, 1896.)
No. 355.

CONSTITUTIONAL LAW-CONSTRUCTION OF STATUTS
BY STATE COURT-IRRIGATION DISTRICTS-PUBLIC
USE-HEARING AS TO BENEFITS-ASSESSMENTS-
DELEGATION OF LEGISLATIVE POWER.

1. It is the duty of the federal court, in determining whether a statute conflicts with the constitution of the United States, to follow the decisions of the highest court of the state as to the construction of the statute.

2. When the highest court of a state has decided that a certain statute is in harmony with the state constitution, a federal court will not be justified in holding adversely on the ground that the decision of the state court is in conflict with the general principles of constitutional law.

3. Water used for the irrigation of lands which are actually arid is used for a public purpose. Therefore a statute providing for the organization of districts for the irrigation of arid lands, and authorizing an assessment on such lands, to pay the cost of the irrigation, does not deprive a landowner of property without due process of law, by means of an assessment not made for a public purpose. 68 Fed. 948, reversed.

4. To render the use of water for the irriga tion of arid lands a public use, every resident of the irrigation district need not have the right to use the water. If each landowner has the right to use a proportionate share upon the same terms as all the others, the use is a public, and not a private, one. 68 Fed. 948, reversed.

5. A provision that no land shall be included in an irrigation district, except such as may be benefited by the system of irrigation used in that district, means that the land must be such that it may be substantially benefited. It is not sufficient that such irrigation creates an opportu nity thereafter to use the land for a new kind of crop, while not substantially benefiting it for the cultivation of the old kind, which it had produced in reasonable quantities, and with ordinary certainty, without the aid of irrigation.

6. A statute providing that the land to be included in an irrigation district shall be suscepti ble of one mode of irrigation from a common source, and by the same system of works, and such that it may be benefited by the system of irrigation used in such district, sufficiently specifies the character of the land to be included.

7. Where a state statute gives the owners of lands to be included in an irrigation district a right to be heard on the question whether their lands shall be included, and a hearing is given before the tribunal so provided in accordance with the statute, the decision of such tribunal, in the absence of fraud and bad faith, will be conclusive upon the federal courts.

8. St. Cal. 1887, as amended in 1889 and 1891, provides that landowners desiring the formation of an irrigation district shall present to the board of supervisors of the county in which the lands to be included, or the greater part thereof, are situated, a petition signed by 50, or a majority, of the landowners in the proposed district, which petition, together with a notice of the time of the meeting at which it will be presented, shall have been published in some newspaper of the county at least two weeks before its presentation; that the board of su pervisors shall then "hear the same, and may adjourn such hearing from time to time, and on the final hearing may make such chan

*118

ges in the proposed boundaries as they may find to be proper"; and that they shall not include in the district any lands which, in the judgment of the board, will not be benefited by irrigation by the system to be used in the district. Held, that these provisions give the persons interested in the proposed improvement the right to appear before the board and contest the facts upon which the petition is based, and the fact of benefit to any particular land included in the description of the proposed district.

9. Where a statute provides that the board of supervisors, after hearing the petition for the formation of an irrigation district, shall exclude therefrom any lands which will not, in the opinion of the board, be benefited by the system of irrigation to be used, the inclusion of certain lands after an opportunity for such hearing is of itself a determination that they will be Lenefited by the proposed irrigation.

10. The fact that the statute provides for an ad valorem assessment of the lands benefited, instead of an assessment in proportion to the actual benefits conferred by the improvement, to pay the cost of constructing the works, does not deprive the persons assessed of property without due process of law.

11. A provision, in a statute governing the incorporation of irrigation districts, that the question whether a proposed district shall be organized under the statute shall be determined by vote of the citizens of the district, is not a delegation by the legislature of the power to create a public corporation.

Mr. Chief Justice Fuller and Mr. Justice Field dissenting.

Appeal from the Circuit Court of the United States for the Southern District of California.

This is an appeal from the United States circuit court for the Southern district of California. The case is reported in 68 Fed. 948. The action was commenced in that court by defendants in error (the plaintiff's below) for the purpose of procuring an injunction restraining defendant Tomlins, the collector of the irrigation district, from giving a deed to it of the premises belonging to plaintiff Mrs. Bradley, based on a sale of her land made by the collector for the nonpayment of a certain assessment upon such lands under the act incorporating the irrigation district, and to set aside such assessment, and for other relief.

The following among other facts were set up in the plaintiffs' second amended bill in equity: The plaintiffs are aliens and subjects of Great Britain, residing in San Diego county, Cal. The irrigation district is a corporation organized pursuant to the laws of California, and doing business at Fallbrook, San Diego county. Matthew Tomlins was the collector of the corporation at the time of the commencement of the suit, and it has been doing business as, and claims to be, a corporation, under "An act providing 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, as such acts have been amended by the acts of 1889 and 1891.

*The material sections of the act, as amended by the other acts just stated, are set forth in the margin herein.1

1 The act reads as follows:

"Section 1. Whenever fifty, or a majority of the holders of title or evidence of title, to lands susceptible of one mode of irrigation from a com

The legislature also passed two acts, approved February 16, 1889, called, respectively, the “Inclusion" and the "Exclusion" Act, by which means were provided, in the first-named act, for including lands within an irrigation district which had not been included in the petition when first presented to the board of supervisors; and, in the second-named act, for excluding from a district already formed some portion of; the land which then formed part of such district. An examination of those acts does not become material in this case.

The plaintiff Mrs. Bradley is the owner of certain real estate described in complainants' bill, which is included within the lines of the irrigation district. The bill sets forth the various steps taken under the irrigation act for the

mon source and by the same system of works, desire to provide for the irrigation of the same, they may propose the organization of an irrigation district, under the provisions of this act, and when so organized such district shall have the powers conferred, or that may hereafter be conferred, by law upon such irrigation districts. The equalized county assessment roll next preceding the presentation of a petition for the or ganization of an irrigation district, under the provisions of this act, shall be sufficient evidence of title for the purposes of this act.

"Sec. 2. A petition shall first be presented to the board of supervisors of the county in which the land, or the greatest portion thereof, is situated, signed by the required number of holders of title, or evidence of title, of such proposed district, evidenced as above provided, which petition shall set forth and particularly describe the proposed boundaries of such district, and shall pray that the same may be organized under the provisions of this act. The petitioners must accompany the petition with a good and sufficient bond, to be approved by the said board of supervisors, in double the amount of the probable cost of organizing such district, conditioned that the bondsmen will pay all the said costs in case said organization shall not be effected. Such petition shall be presented at a regular meeting of the said board, and shall be published for at least two weeks before the time at which the same is to be presented, in some newspaper printed and published in the county where said petition is presented, together with a notice stating the time of the meeting at which the same will be presented; and if any portion of such proposed district lie within another county or counties, then said petition and notice shall be published in a newspaper published in each of said counties. When such petition is presented, the said board of supervisors shall hear the same and may adjourn such hearing from time to time, not exceeding four weeks in all; and on the final hearing may make such changes in the proposed boundaries as they may find to be proper, and shall establish and define such boundaries: provided, that said board shall not modify said boundaries so as to except from the operation of this act any territory within the boundaries of the district proposed by said petitioners which is susceptible of irrigation by the same system of works applicable to the other lands in such proposed district; nor shall any lands which will not, in the judgment of the said board, be benefited by irrigation by said system be in cluded within such district: provided, that any person whose lands are susceptible of irrigation from the same source may, in the discretion of the board, upon application of the owner to said board, have such lands included in said district. Said board shall also make an order dividing said district into five divisions, as nearly equal in size as may be practicable, which shall be numbered first, second, third, fourth and fifth, and one director, who shall be a freeholder in the