$120

purpose of forming the irrigation district, and it alleges the taking of all steps necessary therefor, including the election of officers as provided in the act; that the board of directors submitted to the electors the question whether a special assessment for $6,000 should be made for the purpose of defraying the expenses of organization, and that the electors approved of such assessment, and the proper proceedings were thereafter taken by which to assess the property owners; and that plaintiff Mrs. Bradley's assessment amounted to $51.31, which she refused to pay because the act was, as alleged, unconstitutional and void.

The bill further states that the collector then proceeded to enforce the collection by a sale of the land, and did sell it to the irrigation district, but that no deed has been given to the district by the collector; and an injunction is asked to restrain the execution and delivery of

division and an elector and resident of the district. shall be elected by each division: provided, that if a majority of the holders of title, or evidence of title, evidenced as above provided, petition for the formation of a district, the board of supervisors may, if so roquested in the petition, order that there may be either three or five directors, as said board may order, for such dis trict, and that they may be elected by the district at large. Said board of supervisors shall then give notice of an election to be held in such proposed district, for the purpose of determining whether or not the same shall be organized under the provisions of this act. Such notice shall describe the boundaries so established, and shall designate a name for such proposed district, and said notice shall be published for at least three weeks prior to such election in a newspaper published within said county; and if any portion of such proposed district lie within another county or counties, then said notice shall be published in a newspaper published within each of said counties. Such notice shall require the electors to cast ballots which shall contain the words Irrigation District-Yes,' or 'Irrigation District-No,' or words equivalent thereto, and also the names of persons to be voted for to fill the various elective offices hereinafter prescribed. No person shall be entitled to vote at any election, held under the provisions of this act, unless he shall possess all the qualifications required of electors under the general election laws of this state.

"Sec. 3. Such election shall be conducted as nearly as practicable in accordance with the general laws of this state: provided, that no particular form of ballot shall be required. The said board of supervisors shall meet on the second Monday next succeeding such election, and proceed to canvass the votes cast thereat, and if upon such canvass it appear that at least twothirds of all the votes cast are 'Irrigation District-Yes,' the said board shall, by an order entered on its minutes, declare such territory duly organized as an irrigation district, under the name and style theretofore designated, and shall declare the persons receiving respectively the highest number of votes for such several offices to be duly elected to such offices. And no action shall be commenced or maintained, or defense made, affecting the validity of the organization, unless the same shall have been commenced or made within two years after the making and entering of said order. Said board shall cause a copy of such order, duly certified, to be immediately filed for record in the office of the county recorder of each county in which any portion of such lands are situated, and must also immediately forward a copy thereof to the clerk of the board of supervisors of each of the counties in which any portion of the district may lie;

any deed by such collector, because of the alleged invalidity of the act under which the proceedings were taken.

The bill also alleged a proposed issue of bonds to the amount of $400,000, subject to the decision of the electors at an election proposed to be held under the provisions of the act.

Various reasons are set out in the bill, upon which are based the allegation of the invalidity of the act, among which it is stated that the law violates the federal constitution, in that it amounts to the taking of the plaintiff's property without due process of law. It is also stated that the act is in violation of the state constitution in many different particulars, which are therein set forth.

The bill also asks that the assessment may be set aside, and all the proceedings declared void, on the ground of the invalidity of the act itself.

and no board of supervisors of any county, including any portion of such district, shall, after the date of the organization of such district, allow another district to be formed including any of the lands in such district, without the consent of the board of directors thereof; and from and after the date of such filing, the organization of such district shall be complete, and the officers thereof shall be entitled to enter immediately upon the duties of their respective offices, upon qualifying in accordance with law, and shall hold such offices respectively until their successors are elected and qualified. For the purposes of the election above provided for, the said board of supervisors must establish a convenient number of election precincts in said proposed district, and define the boundaries thereof, which said precincts may thereafter be changed by the board of directors of such district. In any district the board of directors thereof may, upon the presentation of a petition therefor, by a majority of the holders of title or evidence of title of said district, evidenced as above provided, order that on and after the next ensuing general election for the district there shall be either three or five directors, as said board may order, and that they shall be elected by the district at large, or by divisions, as so petitioned and ordered; and after such order such directors shall be so elected."

Sections 4 to 10, inclusive, provide for the election of officers of the company and for their giving bonds, and are not material here.

"Sec. 11. On the first Tuesday in March next following their election, the board of directors shall meet and organize as a board, elect a president from their number and appoint a secretary, who shall each hold office during the pleasure of the board. The board shall have the power, and it shall be their duty to manage and conduct the business and affairs of the district; make and execute all necessary contracts; employ and appoint such agents, officers and employés as may be required, and prescribe their duties; establish equitable by-laws, rules and regulations for the distribution and use of water among the owners of said lands, and generally to perform all such acts as shall be necessary to fully carry out the purposes of this act. The said by-laws, rules and regulations must be printed in convenient form for distribution in the district. And it is hereby expressly provided that all waters distributed for irrigation purposes shall be apportioned ratably to each land owner upon the basis of the ratio which the last assessment of such owner for district purposes within said district bears to the whole sum assessed upon the district: provided, that any land owner may assign the right to the whole or any portion of the waters so apportioned to him.

"Sec. 12. The board of directors shall hold a

The defendants demurred to the first bill of the complainants, and the demurrer was overruled. The complainants were granted leave to serve a second amended bill, to which the defendants put in an answer, denying many of the material allegations of the bill, and claiming the entire validity of the act.

The case came on for hearing before the circuit judge, by consent, upon the second amended bill of complainants, and defendants' answer thereto, and the court gave judgment against the defendants, because of the unconstitutionality of the irrigation act; it being, as held, in violation of the federal constitution, as the effect of such legislation by the state was to deprive complainants of their property without due process of law. The decision of the circuit judge was given for the reasons stated by him in his opinion rendered upon the argument of the demurrer to the bill of complainants, and

regular monthly meeting in their office on the first Tuesday in every month, and such special meetings as may be required for the proper transaction of business: provided, that all special meetings must be ordered by a majority of the board. The order must be entered of record, and five days' notice thereof must, by the secretary, be given to each member not joining in the order. The order must specify the business to be transacted, and none other than that specified must be transacted at such special meeting. All meetings of the board must be public, and three members shall constitute a quorum for the transaction of business; but on all questions requiring a vote there shall be a concurrence of at least three members of said board. All records of the board shall be open to the inspection of any elector during business hours. The board and its agents and employés shall have the right to enter upon any land to make surveys, and may locate the necessary irrigation works and the line for any canal or canals, and the necessary branches for the same, on any lands which may be deemed best for such location. Said board shall also have the right to acquire, either by purchase or condemnation or other legal means, all lands and waters and water rights, and other property necessary for the construction, use, supply, maintenance, repair and improvements of said canal or canals and works, including canals and works constructed and being constructed by private owners, lands for reservoirs for the storage of needful waters, and all necessary appurtenances. In case of purchase, the bonds of the district hereinafter provided for may be used at their par value in payment; and in case of condemnation the board shall proceed, in the name of the district, under the provisions of title seven of part three of the Code of Civil Procedure. Said board may also construct the necessary dams, reservoirs and works for the collection of water for said district, and do any and every lawful act necessary to be done that sufficient water may be furnished to each land owner in said district for irrigation purposes. 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 required 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."

Sections 13 and 14 are not material.

"Sec. 15. For the purpose of constructing necessary irrigating canals and works, and acquiring the necessary property and rights therefor, and otherwise carrying out the provisions of this act, the board of directors of any such district

some of the facts stated in the bill and admitted by the demurrer were denied in the answer subsequently served by the defendants. The sole ground of the decision was, however,, the unconstitutionality of the act, as above stated. From the judgment entered upon the decision of the circuit judge the irrigation district appealed directly to this court, by virtue of the provisions of section 5 of chapter 517 of the Laws of 1891 (26 Stat. 826), which gave an appeal from the circuit court direct to the supreme court "in any case that involves the construction or application of the constitution of the United States," and also "in any case in which the constitution or law of a state is claimed to be in contravention to the constitution of the United States."

A. L. Rhodes, John F. Dillon, and Benjamin Harrison, for appellants. Joseph H. Choate and Geo. H. Maxwell, for appellees.

must, as soon after such district has been organized as may be practicable, and whenever thereafter the construction fund has been exhausted by expenditures herein authorized therefrom, and the board deem it necessary or expedient to raise additional money for said purposes, estimate and determine the amount of money necessary to be raised, and shall immediately thereafter call a special election, at which shall be submitted to the electors of such district possessing the qualifications prescribed by this act, the question whether or not the bonds of said district in the amount as determined shall be issued. Notice

of such election must be given by posting notices in three public places in each election precinct in said district for at least twenty days, and also by publication of such notice in some newspaper published in the county where the office of the board of directors of such district is required to be kept, once a week for at least three successive weeks. Such notices must specify the time of holding the election, the amount of bonds proposed to be issued; and said election must be held, and the result thereof determined and declared in all respects as nearly as practicable in conformity with the provisions of this act governing the election of officers: provided, that no informalities in conducting such an election shall invalidate the same, if the election shall have been otherwise fairly conducted. At such election the ballots shall contain the words 'Bonds-Yes,' or 'Bonds-No,' or words equivalent thereto. If a majority of the votes cast are 'Bonds-Yes,' the board of directors shall cause bonds in said amount to be issued; if a majority of the votes cast at any bond election are 'Bonds-No,' the result of such election shall be so declared, and entered of record. And whenever thereafter said board in its judgment deems it for the best interest of the district that the question of issuance of bonds in said amount, or any amount, shall be submitted to said electors, it shall so declare of record in its minutes, and may thereupon submit such questions to said electors in the same manner and with like effect as at such previous election.

The remainder of the section provides for the maturing and payment of the bonds, and is not material.

Section 16 is not material.

"Sec. 17. Said bonds and the interest thereon shall be paid by revenue derived from an annual assessment upon the real property of the district; and all the real property in the district shall be and remain liable to be assessed for such payments, as hereinafter provided.

"Sec. 18. The assessor must, between the first Monday in March and the first Monday in June, in each year, assess all the real property in the district to the persons who own, claim, or have

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

The decision of this case involves the validity of the irrigation act enacted by the legislature of the state of California, and set forth in the above statement of facts. The principal *act, passed in 1887, has been amended once or twice by subsequent legislation, but in its main features it remains as first enacted. The title of the act indicates its purpose. It is admitted by all that very large tracts of land in Callfornia are in fact "arid lands," which require artificial irrigation in order to produce any thing of value. There are different degrees, however, in which irrigation is necessary, from a

the possession or control thereof, at its full cash value. He must prepare an assessment book, with appropriate headings, in which must be listed all such property within the district, in which must be specified, in separate columns, under the appropriate head:

"First. The name of the person to whom the property is assessed. If the name is not known to the assessor, the property shall be assessed to Unknown owners."

"Second. Land by township, range, section or fractional section, and when such land is not a congressional division or subdivision, by metes and bounds, or other description sufficient to identify it, giving an estimate of the number of acres, locality and the improvements thereon.

"Third. City and town lots, naming the city or town, and the number and block, according to the system of numbering in such city or town, and the improvements thereon.

"Fourth. The cash value of real estate other than city or town lots.

"Fifth. The cash value of improvements on such real estate.

"Sixth. The cash value of city and town lots. "Seventh. The cash value of improvements on city and town lots.

Eighth. The cash value of improvements on real estate assessed to persons other than the owners of the real estate.

Ninth. The total value of all property assessed.

"Tenth. The total value of all property after equalization by the board of directors.

"Eleventh. Such other things as the board of directors may require.

"Any property which may have escaped the payment of any assessment for any year shall, in addition to the assessment for the then current year, be assessed for such year with the same effect and with the same penalties as are provided for such current year."

Section 19 is not material.

"Sec. 20. On or before the first Monday in August in each year, the assessor must complete his assessment book and deliver it to the secretary of the board, who must immediately give notice thereof, and of the time the board of directors, acting as a board of equalization, will meet to equalize assessments, by publication in a newspaper published in each of the counties comprising the district. The time fixed for the meeting shall not be less than twenty nor more than thirty days from the first publication of the notice, and in the meantime the assessment book must remain in the office of the secretary for the inspection of all persons interested.

"Sec. 21. Upon the day specified in the notice required by the preceding section for the meeting, the board of directors, which is hereby constituted a board of equalization for that purpose, shall meet and continue in session from day to day, as long as may be necessary, not to exceed ten days, exclusive of Sundays, to hear and de

point where, without its use, the land is absolutely uncultivable, to that where, if not irri gated artificially, it may yet produce some return for the labor of the husbandman in the shape of a puny and unreliable crop, but nothing like what it could and would do if water were used upon it. There are, again, other lands which, if not irrigated, will still produce the ordinary cereal crops to a more or less uncertain extent, but which, if water be used artificially upon them at appropriate times, are thereby fitted to and will produce much more certain and larger crops than without it, and will be also rendered capable of producing fruit and grapes of all kinds, of first-rate quality, and in very large quantities. What is termed termine such objections to the valuation and assessment as may come before them, and the board may change the valuation as may be just. The secretary of the board shall be present during its sessions and note all changes made in the valuation of property, and in the names of the persons whose property is assessed, and within ten days after the close of the session he shall have the total values, as finally equalized by the board, extended into columns and added. "Sec. 22. The board of directors shall then levy an assessment sufficient to raise the annual interest on the outstanding bonds, and at the expiration of ten years after the issuing of bonds of any issue must increase said assessment to an amount sufficient to raise a sum sufficient to pay the principal of the outstanding bonds as they mature. The secretary of the board must compute and enter in a separate column of the assessment book the respective sums, in dollars. and cents, to be paid as an assessment on the property therein enumerated. When collected, the assessment shall be paid into the district treasury, and shall constitute a special fund, to be called the 'Bond Fund of Irrigation Dis

trict.' In case of the neglect or refusal of the board of directors to cause such assessment and levy to be made as in this act provided, then the assessment of property made by the county assessor and the state board of equalization shall be adopted, and shall be the basis of assessments for the district, and the board of supervisors for the county in which the office of the board of directors is situated shall cause an assessment roll for said district to be prepared, and shall make the levy required by this act, in the same manner and with the like effect asif the same had been made by said board of directors, and all expenses incident thereto shall be borne by such district. In case of the neglect or refusal of the collector or treasurer of the district to perform the duties imposed by law, then the tax collector and treasurer of the county in which the office of the board of directors is situated must, respectively, perform such duties, and shall be accountable therefor upon their official bond as in other cases.

"Sec. 23. The assessment upon real property is a lien against the property assessed from and after the first Monday in March for any year, and the lien for the bonds of any issue shall be a preferred lien to that for any subsequent issue, and such lien is not removed until the assessments are paid or the property sold for the payment thereof."

Sections 24 to 30, inclusive, provide for collecting the assessments and for the sale of the lands of those not paying, the giving of deeds upon such sale, and for the redemption of the lands so sold and for the character of the deed as to its being prima facie evidence, and in some cases conclusive evidence of the regularity of the proceedings; and such sections, and the remainder of the act, are not material to the present inquiry.

153

the "arid belt" is said, in the Census Bulletin No. 23, for the census of 1890, to extend from Colorado to the Pacific Ocean, and to include over 600,000,000 acres of land.

Of this enormous total, artificial irrigation has thus far been used only upon about three and a half million acres, of which slightly over a million acres lie in the state of California. It was stated by counsel that something over 30 irrigation districts had been organized in California under the act in question, and that a total bonded indebtedness of more than $16,000,000 had been authorized by the various districts under the provisions of the act, and that more than $8,000,000 of the bonds had been sold, and the money used for the acquisition of property and water rights, and for the construction of works necessary for the irrigation of the lands contained in the various districts.

Whether these statements are perfectly accurate or not is a matter of no great importance, as it has been assumed by all that numbers of districts have been formed under the act, and a very large indebtedness already incurred, and that more will be necessary before all the districts will be placed in an efficient working condition. All these moneys, if the act be valid, must eventually be repaid from assessments levied upon the lands embraced within the respective districts, while the annually recurring interest upon these moneys is also to be paid in the same way. Taking the California act as a model, it was also stated, and not contradicted, that several of the other states which contain portions of the arid belt (seven or eight of them) had passed irrigation acts, and that proceedings under them were generally awaiting the result of this litigation. The future prosperity of these states, it was claimed, depended upon the validity of this act as furnishing the only means practicable for obtaining artificial irrigation, without the aid of which millions and millions of acres would be condemned to lie idle and worthless, which otherwise would furnish enormous quantities of agricultural products, and increase the material wealth and prosperity of that whole section of country. On the other hand, it has been asserted, with equal earnestness, that the whole scheme of the act will, if carried out to the end, result in the practical confiscation of lands like those belonging to the appellees herein, for the benefit of those owning different kinds of land, upon which the assessments for the water would be comparatively light, and the benefits resulting from its use far in excess of those otherwise situated. Such results, it is said, are nothing more than taking by legislation the property of one person or class of persons, and giving it to another, which is an arbitrary act of pure spoliation, from which the citizen is protected, if not by any state constitution, at least by the federal instrument, under which we live, and the provisions of which we are all bound to obey.

These matters are only alluded to for the

purpose of showing the really great practical importance of the question before the court to the people of California, and of those other states where similar statutes have been passed; important not alone to the public, but also and specially important to those landowners whose lands are not only to be irrigated, but are also to be assessed for the payment of the cost of the construction of the works necessary for supplying the water.

*This court fully appreciates the importance of the question, and its decision has been reached after due reflection upon the subject, and after a careful examination of the authorities bearing upon it.

The form in which the question comes before the court in this case is by appeal from a decree of the United States circuit court for the Southern district of California, perpetually enjoining the collector of the irrigation district from executing a deed conveying the land of the plaintiff Maria King Bradley, under a sale made of such land pursuant to the provisions of the act under consideration. The grounds upon which relief was sought were that the act was in violation of the federal constitution, and also the constitution of the state of California. The decree is based upon the sole ground that the act violates the federal constitution, in that it, in substance, authorizes the taking of the land of the appellee "without due process of law." Coming before the court in this way, we are not confined in our review of the decision of the lower court within the same limits that we would be if the case were here on error from the judgment of a state court.

The jurisdiction of the United States circuit court in this case was based upon the fact that the plaintiffs were aliens and subjects of Great Britain, and that court, therefore, had the same jurisdiction as a state court would have had to try the whole question, and to examine and decide, not only as to its conformity with the federal constitution, but. in addition, whether the act were in violation of the state constitution, and whether the provisions of the act itself had been complied with. In exercising that jurisdiction, it was, nevertheless, the duty of the trial court to follow and be guided by the decisions of the highest state court upon the construction of the statute, and upon the question whether, as construed, the statute violated any provision of the state constitution. The same duty rests upon this court, and it has been so determined from the earliest period of its history. If the act of the state legislature as construed by its highest court conflicts with the federal constitution, or with any valid act of congress, it is the duty of the circuit court and of this court to so decide, and to thus enforce *the* provisions of the federal constitution. The following are some of the numerous cases in which this principle has been announced and carried into effect: Shelby v. Guy, 11 Wheat. 361; Nesmith v. Sheldon, 7 How. 812; Van

Rensselaer v. Kearney, 11 How. 297; Webster v. Cooper, 14 How. 488; Leffingwell v. Warren, 2 Black, 599; Hagar v. Reclamation Dist., 111 U. S. 701, 704, 4 Sup. Ct. 663; Detroit v. Osborne, 135 U. S. 492, 10 Sup. Ct. 1012.

We should not be justified in holding the act to be in violation of the state constitution in the face of clear and repeated decisions of the highest court of the state to the contrary, under the pretext that we were deciding principles of general constitutional law. If the act violate any provision, expressed or properly implied, of the federal constitution, it is our duty to so declare it; but, if it do not, there is no justification for the federal courts to run counter to the decisions of the highest state courts upon questions involving the construction of state statutes or constitutions, on any alleged ground that such decisions are in conflict with sound principles of general constitutional law. The contrary has not been held in this court by the case of Loan Association v. Topeka, 20 Wall. 655. In that case a statute of Kansas was held invalid, because by its provisions the property of the citizen, under the guise of taxation, would be taken in aid of a private enterprise, which was a perversion of the power of taxation. The case was brought in the United States circuit court for the district of Kansas, and was decided by that court in favor of the city. There had been no decision of the highest state court upon the question whether the act violated the constitution of Kansas, and consequently there was none to be followed by the federal court upon that question. This court held that a law taxing the citizen for the use of a private enterprise conducted by other citizens was an unauthorized invasion of private right. Mr. Justice Miller said that there were such rights in every free government which were beyond the control of the state. The ground of the decision was as stated, that the act took the property of the citizen for a private purpose, although under the forms of taxation. In thus holding, there was no overruling or refusing to follow the decisions of the highest court of the state respecting the constitution of its own state.

We are therefore practically confined in this case to the inquiry whether the act in question, as it has been construed by the state courts, violates the federal constitution.

The assertion that it does is based upon that part of the fourteenth amendment of the constitution which reads as follows: "Nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."

Referring to the amendment, above quoted, the appellees herein urge several objections to this act. They say-First. That the use for which the water is to be procured is not in any sense a public one, because it is limited to the landowners who may be such at the time when the water is to be apportioned, and the interest of the public is nothing more than that indirect

and collateral benefit that it derives from every improvement of a useful character that is made in the state. Second. They assert that, under the act in question, the irrigation of lands need not be limited to those which are in fact unproductive, but that, by its very terms, the act includes all lands which are susceptible of one mode of irrigation from a common source, etc., no matter how fertile or productive they may already be; and it is denied that the furnishing of a fertilizer for lands of individual proprietors which are already productive, in order to make them more productive, is, in any legal sense, a public improvement. Third. It is also objected that, under the act, the landowner has no right to demand, and no opportunity is given him, for a hearing on the question whether his land is or can be benefited by irrigation as proposed; also, that he has no right to a hearing upon the question whether the statute has been complied with in the preliminaries requisite to the formation of the district. Fourth. That the basis of assessment for the cost of construction is not in accordance with and in proportion to the benefits conferred by the improvement. And, finally, that land which cannot, in fact, be benefited, may yet, under the act, be placed in one of the irrigation districts, and assessed upon its value to pay the cost of construction of works which benefit oth-* ers at his expense. These are the main objections urged against the act.

It has often been said to be extremely difficult to give any sufficient definition of what is embraced within the phrase "due process of law," as used in the constitutional amendment under discussion. None will be attempted here. It was stated by Mr. Justice Miller in Davidson v. New Orleans, 96 U. S. 97, 104, that there was "abundant evidence that there exists some strange misconception of the scope of this provision as found in the fourteenth amendment. In fact, it would seem from the character of many of the cases before us, and the arguments made in them, that the clause under consideration is looked upon as a means of bringing to the test of the decision of this court the abstract opinions of every unsuccessful litigant in a state court of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded." Of course, no such jurisdiction exists or is claimed to exist by the parties here. It is at the same time most difficult to set certain and clear bounds to the right of this court, and consequently to its duty to review questions arising under state legislation with reference to this amendment as to due process of law.

It never was intended that the court should, as the effect of the amendment, be transformed into a court of appeal, where all decisions of state courts involving merely questions of general justice and equitable considerations in the taking of property should be submitted to this court for its determination. The final jurisdiction of the courts of the states would thereby be enormously re