assessment commissioner, being created by statute, is a de jure office. The commissioner, whose wife became a mortgagee, was a de facto officer, who, when appointed and qualified as such, acted under color of office, and was presumptively entitled thereto. He was engaged as such de facto officer in the discharge of the duties of a de jure office, and his acts were as valid and binding as those of a de jure officer.

ID. COMMISSIONER Disinterested When ApPOINTED.—It appearing that the wife of the commissioner took the mortgage subsequently to his appointment and qualification, though the money therefor was furnished by him to her, he was at the time of such appointment and qualification a disinterested person.

ID.-DUTY OF COMMISSIONERS IN MAKING Assessment.-It is the duty of the commissioners in making the assessment to make an estimate of the whole expense of the proposed reclamation works, and then assess the lands embraced in the district proportionate to the whole expense thereof and according to the benefits which will result to each parcel of land from such reclamation. ID.-DISCRETION-PRESUMPTION

"PRIMA FACIE EVIDENCE" UNDER CODE. The statute contemplates the exercise of considerable discretion on the part of the commissioners in determining the question of benefits. While an arbitrary assessment cannot be levied, the judgment of the commissioners upon the assessment, after a view of the land, under the statute, must be presumed to have been the result of a contemplation of all the elements necessary to a just apportionment of the assessment; it being provided in section 2463 of the Political Code that the assessment list is prima facie evidence of the validity of the assessment, and that it was apportioned in obedience to law.

ID.-BURDEN OF PROOF TO OVERTHROW PRESUMPTION.-Where the assessment or a certified copy thereof has been filed, a prima facie case is made out in favor of the assessment and of the validity of the lien against the lands of the defendants; and the burden was cast upon them to overcome the presumption that the assessment was apportioned according to the law. ID.-ACTION TO ENFORCE ASSESSMENT UPON LANDS EMBRACED IN DIS

TRICT BENEFIT BY RECLAMATION CONCLUSIVE-INCOMPETENT EVIDENCE. Where the lands of the defendants appealing were included by the legislature in the reclamation district, it must be conclusively presumed that their lands will be benefited by the reclamation works, and evidence offered by defendants to prove the contrary was incompetent, and was properly rejected.

ID. EVIDENCE TO SHOW INEQUALITY OF ASSESSMENT.-If the offered evidence be viewed in the light of an offer to show inequality in the assessment according to benefits, its probative force or value in that regard was matter for the determination of the trial court.

ID. FINDING OF BENEFIT TO EVERY TRACT.-A finding that all the land in the district was assessed in proportion to benefits and to the whole expense incurred in reclamation is supported by evidence as well as by the presumption in favor of the validity of the assessment, and it cannot be said as matter of law that the offered evidence was sufficient to overcome that presumption.

ID.-EFFECT OF PRESUMPTION AS EVIDENCE.-A presumption of law is not an arbitrary rule which is necessarily destroyed as evidence by opposing evidence; since, if it is not fully disproved or admitted to be so, it still remains for the jury or trial judge to determine whether the presumption is outweighed, and to find in favor of the presumption against evidence not sufficient in the judgment of the jury or court to overcome its effect.

ID. REFUSAL TO ADJOURN COURT FOR CUMULATIVE EVIDENCE-DISCRETION.-Where a large amount of testimony had been introduced on the question whether the assessment was made according to benefits, the court did not abuse its discretion in refusing to adjourn the case for the testimony of a witness subpoenaed by the defendants to prove that their land was not benefited by the reclamation works, and that the assessment was not according to benefits. It cannot be said, as matter of law, that any different result would have been reached if such testimony had been given.

APPEAL from a judgment of the Superior Court of Sutter County. K. F. Mahan, Judge.

The facts are stated in the opinion of the court.

Milton Shepardson, and E. A. Bridgford, for Appellants. A. H. Hewitt, and A. L. Shinn, for Respondent.

HART, J.-This is a suit for the enforcement of a lien upon certain land of defendants, situated within the limits of Reclamation District No. 70, under an assessment for reclamation purposes. Judgment passed for the plaintiff, and this appeal is from said judgment under section 941b of the Code of Civil Procedure. The transcript of the proceedings, etc., as authorized by said section, is not in form as required by rule 7 of this court, and we will, therefore, take occasion to here say that hereafter no transcript in an appeal taken directly to this court under the section mentioned will be filed, nor the appeal, except as to such questions as may be reviewed on an appeal from the judgment on the judgment

roll alone where the judgment-roll is, as here, presented in a proper and separate and distinct form from the transcript of the proceedings, will be considered by this court, unless such transcript conforms to the requirements of said rule 7 [144 Cal. xliv, 78 Pac. ix]. It would seem scarcely necessary to say that rules laid down by the supreme court for the government, in many particulars, of the appellate practice are as much a part of our system of procedure as the rules promulgated for that purpose by the legislature, and they are, therefore, as much the necessary learning of the practicing lawyer as either the rules of procedure and practice established by the legislature or the principles of substantive law. The consequences of failure to observe these rules are upon the lawyer and not upon the court. The cumbersome and unwieldy form of the record here is excused in this instance only because the section under which the appeal is prosecuted is new, and, further, because the litigation involved in the action is of more than ordinary importance, for the reason that the defendants' land has been decreed to be sold for the satisfaction of the assessment levied by the plaintiff.

The validity of the assessment is challenged by appellants on the grounds: 1. That the act of the legislature by which the plaintiff was organized as a reclamation district (Stats. 1905, p. 717) is unconstitutional and void, because, it is claimed, it is a special law, and, therefore, violative of article XII, section 1, of the constitution; 2. That embraced within the boundaries of plaintiff are two other reclamation districts, which were created under the provisions of general laws and which were in existence at the time of the enactment of the law establishing and organizing plaintiff; 3. That the board of trustees of plaintiff, by resolution, amended the by-laws adopted, in pursuance of section 3452 of the Political Code, by the land owners within the district; 4. That the assessment commissioners were not disinterested persons, as required by and within the meaning of the language of section 3456 of the Political Code; 5. That the commissioners "did not take into consideration the quality and grade of the lands of the district in fixing the assessments, and had nothing before them to show the relative heights of the land."

1. Upon the first point the contention is, as stated, that a reclamation district is a "corporation" within the meaning

of article XII, section 1, of the constitution, which, in part, provides: "Corporations may be formed under general laws, but shall not be created by special act."

In support of this contention, counsel cite a number of early California cases in which reclamation districts are declared to be corporations: Dean v. Davis, 51 Cal. 410; People v. Recla mation District 108, 53 Cal. 348; People v. Williams, 56 Cal. 647; People v. Larue, 67 Cal. 526, [8 Pac. 84]; Irrigation Dist. v. De Lappe, 79 Cal. 353, [21 Pac. 825]. And as late as Angus v. Browning, 130 Cal. 503, [62 Pac. 827], it was held that Reclamation District 108 was a corporation, citing People v. District 108, supra, but it is not therein expressly declared, nor do we think the court intended to hold in that case, that reclamation districts belong to any of the classes of corporations defined by section 284 of the Civil Code, or that they come within the purview of the article and section of the constitution enjoining the creation of corporations except by general laws. Long before the decision in Angus v. Browning, 130 Cal. 503, [62 Pac. 827], the supreme court declared in the case of People v. Reclamation Dist. No. 551, 117 Cal. 121, [48 Pac. 1016], that reclamation districts, even if, for the want of a better term, they may be called corporations, were not within the definition of "corporations" as given by section 284 of the Civil Code, and this view has not only been adopted by the supreme court in a case decided subsequently to the case of Angus v. Browning, 130 Cal. 503, [62 Pac. 827], but it has been expressly held that such districts may be formed and organized by special acts. (People v. Levee Dist. No. 6, 131 Cal. 30, [63 Pac. 676].)

In People v. Reclamation District No. 551, 117 Cal. 121, [48 Pac. 1016], the court, referring to the corporations defined by the section of the Civil Code referred to, says: "These [reclamation] districts, in my opinion, belong to neither of these classes. They are special organizations, formed to perform a certain work, which the policy of the state requires or permits to be done, and to which the state has given a certain degree of discretion in making the improvements contemplated. They are described by Dillon in his work on Municipal Corporations, sections 24, 25 and 26. He calls them quasi corporations. Perhaps it would have been more accurate to say that they are not corporations at

all, but are so classed because many of the presumptions and rules which apply to corporations have been made applicable to them. They are public agencies, which would cease to exist when the policy of the state has changed so that they are no longer required, or when there is no further function for them to perform. And there is nothing in the constitution relating to municipal corporations which would prevent the state from so changing its policy as to put them out of existence." (See Hensley v. Reclamation Dist. No. 556, 121 Cal.

96, [53 Pac. 401].)

The case of People v. Levee Dist. No. 6, 131 Cal. 30, [63 Pac. 676], before referred to, sets at rest and completely dissipates all doubt which may have existed as to the nature of reclamation and irrigation districts and the extent of the power of the legislature in forming them. It is there said: "Section 1 of article XII of the constitution, having reference to private corporations, provides that they may be formed under general laws, but shall not be created by a special act. Article XI, section 6, of the constitution, declares that corporations for municipal purposes shall not be created by special laws. The act of 1891 [Stats. 1891, p. 235] is unquestionably a special law. If Levee District No. 6 be a corporation, it is certainly not a private corporation, and must, if it be recognized by the constitution at all, come under the designation of article XI, section 6-'a corporation for municipal purposes.' And if it be a corporation for municipal purposes within the meaning of that article and section, then indubitably, the act of March, 1891, forcing upon it a new, distinct, and different organization, is special and inhibited legislation. But is Levee District No. 6 a corporation for municipal purposes within the meaning of the constitution? Expressions will be found in the cases where such organizations have been designated 'corporations for municipal purposes,' or 'public corporations,' or 'corporations for public purposes,' but these were convenient phrases of designation and description, rather than judicial declarations as to the nature and character of these agencies. The question propounded is conclusively answered by People v. Reclamation Dist. No. 551, 117 Cal. 114, [48 Pac. 1016]. It is there held that a reclamation district, conceding it to be a corporation, is not a corporation for municipal purpose within the mean