Mr. Maxwell's Argument for Appellees.

their constitutionality must be determined under the principles controlling this power of assessment, as distinguished from principles applicable only to general taxation or eminent domain, or the exercise of the police power or power to regulate a common use or provide for a common improvement among several owners. The decisions sustaining the Wright Act, and the cases cited and arguments advanced in its support, rest upon wrong premises and false reasoning, because they utterly confuse the principles governing these different branches of the exercise of the power of the State, and though conceding the Wright Act to be an exercise of the power of assessment, seek to maintain it under principles and authorities applicable only to general taxation or eminent domain or the police power. Davidson v. New Orleans, 96 U. S. 97; Norfolk v. Chamberlain, 89 Virginia, 196; Hammett v. Philadel phia, 65 Penn. St. 146; Head v. Amoskeag Mfg Co., 113 U. S. 9, 26; Wurts v. Hoagland, 114 U. S. 606, 614.

VII. The legislature in the exercise of its power of assessment for a local public improvement has power primarily to determine the necessity for the improvement, to determine what property will be benefited thereby, to designate the district within which the assessments are to be collected and to fix the mode of their apportionment; but this power is not without restriction, or in all cases conclusive and beyond judicial control. It is only where the legislature, or the subordinate body to whom its power may be delegated, has exercised its judgment in the determination of a question of fact relating to any of these matters, which has been committed to its discretion, that its action is conclusive, and even then it is not necessarily so if it has acted in an arbitrary, oppressive or fraudulent manner or has in any way acted in excess of its power. Whenever, as is the case of the Wright Act, it appears that a principle of law has been violated, as by the inclusion of lands clearly not benefited, or by the application of a wrong basis of apportionment, the legislative action will be held void by the courts, because in excess of its powers. Spencer v. Merchant, 125 U. S. 345; People v. Brooklyn, 23 Barb. 166; Paulsen v. Portland, 16 Oregon, 450; Mason v. Spencer, 35 Kansas,

Mr. Maxwell's Argument for Appellees.

512; State v. Ramsey County, 33 Minnesota, 295; Merrill v. Humphrey, 24 Michigan, 170; Chicago v. Burtice, 24 Illinois, 489; Atlanta v. Gate City Street Railway, 80 Georgia, 276; Spring Valley Water Works v. San Francisco, 82 California, 286; Yick Wo v. Hopkins, 118 U. S. 356; Elwood v. Rochester, 43 Hun, 102; Hassen v. Rochester, 65 N. Y. 516; People v. Jefferson County, 55 N. Y. 604; Graham v. Conger, 85 Kentucky, 582; Thomas v. Gain, 35 Michigan, 155; Le Roy v. New York, 20 Johns. 429; In re Protestant Epis. School, 75 N. Y. 324; Masters v. Portland, 24 Oregon, 161.

VIII. The Wright Act violates general principles of constitutional law, by which this court will unquestionably be guided in this case, as it is one of original federal jurisdiction; but these same principles are a part of the general law of the land, and when they are violated in the taking of private property it is taken without due process of law, and its owner is deprived of the equal protection of the law, and may claim the protection of the Federal Constitution, no matter whether the case be one of original federal jurisdiction or an appeal from a state court. Sharpless v. Philadelphia, 21 Penn. St. 147; Murray v. Hoboken Land & Improvement Co., 18 How. 272; Hurtado v. California, 110 U. S. 516; Railroad Tax cases, 13 Fed. Rep. 722; Davidson v. New Orleans, 96 U. S. 97.

IX. A hearing is essential to due process of law; and whenever an assessment district is to be created by any subordinate legislative body, and assessments are to be levied on lands. therein for the construction of a local public improvement, every landowner must have a hearing, at some stage of the proceedings, before the assessment becomes a final charge against his land, at which he may show that his lands are not or will not be benefited by the proposed improvement, or that the assessment against him is not in proportion to benefits or is in excess of benefits; and this hearing must be given as a matter of right, before a tribunal having power and whose duty it shall be to exclude the lands or relieve them from assessment if not benefited, or if the assessments are in excess of or not proportionate to benefits, then to readjust them or declare them invalid; and the landowner cannot be deprived

VOL. CI.XIV-9

Mr. Maxwell's Argument for Appellees.

of this right to a hearing by any determination of the legislature fixing in advance an arbitrary basis of apportionment, with reference to unknown future conditions, as to which the legislature could have had no knowledge upon which to base the exercise of any judgment or discretion in reaching its determination, or by clothing the assessment district in the guise of a public corporation. King's River Reclamation Dist. v. Phillips, 39 Pac. Rep. 630, 41 Pac. Rep. 335; Remsen v. Wheeler, 105 N. Y. 573; People v. Henion, 64 Hun, 471; Paulsen v. Portland, 149 U. S. 30; Stuart v. Palmer, 74 N. Y. 183; Dyar v. Farmington, 70 Maine, 515; Cypress Pond Draining Co. v. Hooper, 2 Met. (Ky.) 350; Howell v. Tacoma, 3 Wash.

711.

X. It is contended in support of the Wright Act that the hearing before the supervisors, when they are to hear the petition for the formation of the district, affords to the landowner all the opportunity for a hearing to which he is entitled upon the question of benefits, and consequently that the act does not in this respect take property without due process of law. This cannot be so, for the reason that under the provisions of the act as construed by the Supreme Court of California it is practically impossible for any facts to be established at this hearing by any objecting landowner which would give him the right or which would make it the duty of the board, upon the ground that his lands were not benefited, or upon any ground whatsoever, to exclude any lands which had been included in the boundaries of the proposed district as fixed by the petitioners in the petition for its organization.

XI. The radical changes from the Wright Act, which have been made in the irrigation district laws of Nebraska, Idaho and Oregon, which were framed in the light of experience with the practical operations of the Wright Act, strongly support our argument that the unconstitutional features of the Wright Act make it impossible for any such law to operate successfully, and show that these later statutes have sought to eliminate those unconstitutional features of the Wright Act which have given rise to its most grievous oppressions, and

Mr. Choate's Argument for Appellees.

which will work the practical destruction of any law embodying such provisions.

XII. It is a settled principle of universal law, and is the law of the land in this nation, that the right to compensation whenever private property is taken for public use, is an incident to the exercise of that power, and inseparably connected with it. Any attempt of any legislature to levy assessments on property not compensated by special benefits or in excess of such benefits, or not proportionate to benefits, for the purpose of constructing a local public improvement for the general public welfare, is therefore an excess of legislative power, and clearly a violation of the Fourteenth Amendment.

Mr. Joseph H. Choate for appellees.

The constitution of California provides by Art. 1, § 1, that acquiring, possessing and protecting property are inalienable rights; and by § 14, that "Private property shall not be taken or damaged for public use without just compensation having been first made to, or paid into court for, the owner.' Our main contention is that the Wright Act is in violation of the Fourteenth Amendment of the Constitution of the United States, which provides" 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."

We insist that it violates each of these clauses; and, also that, in its treatment of private property, it violates those uniform constitutional provisions for the protection of private property which are found alike in the constitution of California and those of all the other States.

I. Before coming to the special methods pursued in the Wright Act, we submit that any law of any State which sought to accomplish the objects of that act would be obnoxious to the constitutional provisions which we invoke, for that act plainly attempts to provide for the taking of private prop erty for a private use.

In Bank of Columbia v. Okely, 4 Wheat. 235, the court say,

Mr. Choate's Argument for Appellees.

(p. 244,)" As to the words from Magna Charta incorporated into the constitution of Maryland - [No freeman ought to be deprived of his .. property but by the judg ment of his peers or the law of the land] after volumes spoken and written with a view to their exposition, the good sense of mankind has at length settled down to this: that they were intended to secure the individual from the arbitrary exercise of the powers of government unrestrained by the established principles of private rights and distributive justice."

Whoever, then, undertakes to take away my property must show the authority of law for doing so; not an arbitrary edict of the legislature, but a legitimate exercise of legislative power, as restrained by the established principles of private rights and distributive justice-a law of the land, which does not deny to me the equal protection of the laws.

And further, where money is sought to be taken by the State from an individual by the exercise of the power of taxation in any form, or however that power may be defined, it must be for the purpose of expenditure for a public object or use, and the test of the validity of a law enacted for that purpose must necessarily be the essential character of the direct object of the expenditure proposed. "The incidental advantage to the public, or to the State, which results from the promotion of private interests and the prosperity of private enterprises or business, does not justify their aid by the use of public money raised by taxation, or for which taxation may become necessary." Lowell v. Boston, 111 Mass. 461.

Examining the Wright Act by the light of these principles we find it to be an act to raise a fund by levy upon all the landholders of a given district, whether their lands need irrigating or not, and whether they desire to have them irrigated or not, to be expended in procuring water for the irrigation of all the lands in the district, so as to make it cheaper for those of them who do desire it than if they had to irrigate their own lands at their own individual expense.

The pecuniary relief of such of the landholders is thus the direct and immediate object of the intervention of the State