Mr. Choate's Argument for Appellees. by the exercise of the power of taxation. This object is as strictly private as it was in any of the famous cases which have condemned similar attempts to wrest money from citizens by force of law for private use, and the resulting benefits to the public are quite as indirect and uncertain as in any of those. In Lowell v. Boston, 111 Mass. 454, an act to loan the credit of the city of Boston to individual sufferers by the great fire, to enable them to rebuild, each on his own property, was condemned. In Loan Association v. Topeka, 20 Wall. 655, this court pronounced against an act of Kansas" to authorize cities and counties to issue bonds for the purpose of building bridges, aiding railroads, water power or other works of internal improvement." In State v. Osawkee, 14 Kansas, 418, the Supreme Court of Kansas held an act of the legislature of that State authorizing the issue of township bonds to provide means for furnishing destitute citizens with food and with seed to be unconstitutional. The Supreme Court of Maine holds the same doctrine. Allen v. Jay, 60 Maine, 124. See also Waterloo Woolen Manufacturing Company v. Shanahan, 128 N. Y. 345; Shoemaker v. United States, 147 U. S. 282; In re Niagara Falls & Whirlpool Railroad, 108 N. Y. 375; In re Jacobs, 98 N. Y. 98; Concord Railroad v. Greely, 17 N. H. 47. As the present case is plainly governed by the principles laid down in these leading cases, so it is not only distinguishable, but is in its essential nature absolutely distinct from all the classes of cases where local improvements have been held to be for public use, or have been sustained as a just exercise of the police power, or on other special and peculiar grounds. It was in reliance upon those classes of cases that the learned Supreme Court of California maintained the constitutionality of the law, while the United States Circuit Judge, adhering to the cardinal rules already laid down, declared it to be against first principles, and in direct violation of the constitutional prohibition whose protection we invoke. We do not dispute that the legislature may by taxation or assessment provide for a local public improvement for the Mr. Choate's Argument for Appellees. benefit of a portion of the State; nor do we question that the legislature might, in the lawful exercise of this power, provide for the irrigation of arid lands, unproductive without irrigation. The operations of the Wright Act are, however, not limited to such unproductive lands, but include all lands, no matter how fertile or productive; and we deny that the furnishing of a fertilizer for the already productive lands of individual proprietors to make them more productive is or can be, in any possible legal sense, a public improvement; and we deny that the nine-tenths of the people of the locality who are not landholders have or can have any interest in such business, or that they can receive any benefit therefrom other than such as is, upon every principle of law, reason and common sense, strictly indirect, incidental and consequential. This is in the very nature of things. See Scuffletown Fence Company v. McAllister, 12 Bush, 312; Anderson v. Kerns Drainage Co., 14 Indiana, 199; McQuillen v. Hatton, 42 Ohio St. 202; Reeves v. Wood County, 8 Ohio St. 333; In re Niagara Falls & Whirlpool Railroad, 108 N. Y. 375. Nor is the contention of the Supreme Court of California aided by calling the unique entity, brought into existence by this statute under the name of Irrigation District, a public corporation. If the essential thing sought to be accomplished is the taking of the property or money of one citizen for the private benefit of another, it matters not whether the agency created for the purpose be called a public or private corporation, or a commission. A corporation armed with the power to tax for the purpose of converting private grazing or farm lands into vineyards or orchards, with or without the will of the owner, takes private property for purely private uses, by whatever name it may be called. In Beach v. Leahy, 11 Kansas, at p. 31, Mr. Justice Brewer, speaking of school districts, lays down the principle that "The mere fact that these organizations are declared in the statute to be bodies corporate, has little weight. We look behind the name to the thing named. Its character, its rela Mr. Choate's Argument for Appellees. tions and its functions determine its position, and not the mere title under which it passes." The cases in which the organization of districts for local improvement and the forced contributions of landholders therein by taxation or assessment for the common benefit have been upheld, as a legitimate exercise of legislative power, all differ from this Wright Act in this-that in all those cases there was a common interest, a common necessity or a common benefit, the promotion of which was obviously the direct and immediate object of the proposed expenditure, while here such direct and immediate object is the fertilization by water, at the common expense, of the lands of those owners who desire their lands to be irrigated, the interest of each being absolutely distinct and independent. The Reclamation District Act differs from the Wright Act in every particular in which we claim the latter to be unconstitutional. In the Reclamation District Act there was no unlawful delegation of legislative power; the object of the act was a purpose in which every landholder had a common interest, and was for the permanent reclamation of lands otherwise not only useless, but a menace to the public health. The Reclamation Act gave the supervisors discretion to act upon the hearing of the petition. Then, too, only the land to be reclaimed was assessed, and that tax was proportionate to the whole expense and to the benefit received. Moreover, the tax was only to be collected by suit, in which any defence going to the validity of the tax could, of course, be set up. In all of these fundamentally important particulars, and others, did the Reclamation Act differ from the Wright Act. It was said by the court in Loan Association v. Topeka, and has often been repeated, that, "in deciding whether in the given case the object for which the taxes are assessed falls upon the one side or the other of this line, they must be governed mainly by the course and usage of the government, the objects for which taxes have been customarily and by long course of legislation levied, what objects or purposes have been considered necessary to the support and proper use of the government, whether state or municipal;" and that "what Mr. Choate's Argument for Appellees. ever lawfully pertains to this and is sanctioned by time and the acquiescence of the people may well be held to belong to the public use, and proper for the maintenance of good government." Surely, it will not be pretended that this novel and utterly unique statute was sanctioned by previous use or acquiescence, or ever had a precedent in legislation, or that it approximates in any degree to the exercise of legislative power for a governmental purpose. The drainage cases, represented by the case of Wurts v. Hoagland, 114 U. S. 606, well illustrate the force of Mr. Justice Miller's rule just quoted, and are in striking contrast to the case at bar. The sound and well-reasoned conclusion there, drawn from the early New Jersey cases, is, that "the drainage of large tracts of swamp and low lands upon proceedings instituted by some of the proprietors of the lands, to compel all to contribute to the expense of their drainage, have been maintained by the courts of New Jersey (without reference to the power of taking private property for public use under the right of eminent domain, or to the power of suppressing a nuisance dangerous to the public health), as a just and constitutional exercise of the power of the legislature to establish regulations by which adjoining lands, held by various owners in severalty, and in the improvement of which all have a common interest, but which by reason of the peculiar natural condition of the whole tract, cannot be improved or enjoyed by any of them without the concurrence of all, may be reclaimed and made useful to all at their joint expense." Certainly, the proprietors of adjoining lands, already arable and devoted to the raising of wheat or other grain, or in use for grazing, which they are content and desire to continue to cultivate or use in that way, cannot be brought into the category here instanced by an application of some of their neighbors to compel them to have their lands irrigated in common with the petitioners. But the court in Wurts v. Ioagland immediately follows up this statement of the rule applicable to drainage cases by Mr. Choate's Argument for Appellees. the further statement that "the case comes within the principle upon which this court upheld the validity of general mill acts in Head v. Amoskeag Mfg Co., 113 U. S. 9." In that interesting case the court declined to decide or to consider the question whether the erection and maintenance of mills for manufacturing purposes under a general mill act could be upheld as a taking of private property for public use in the constitutional sense, but, after a careful review of the Massachusetts and New Hampshire cases from the beginning, rested the decision on the following proposition: "Upon principle and authority, therefore, independently of any weight due to the opinions of the courts of New Hampshire and other States, maintaining the validity of general mill acts as taking private property for public use in the strict constitutional meaning of that phrase, the statute under which the Amoskeag Manufacturing Company has flowed the land in question is clearly valid as a just and reasonable exercise of the power of the legislature, having regard to the public good in a more general sense, as well as to the rights of the riparian proprietors, to regulate the use of the water power of running streams, which, without some such legislation, could not be beneficially used." No suggestion, therefore, can be found in the drainage or the mill acts, as interpreted by this court, which will countenance these irrigation acts as the legitimate exercise of legislative power for public or governmental purposes. The government exercises and grants eminent domain with considerable liberality wherever the public purpose is sufficient to demand it. The most important consideration in the case of eminent domain is the necessity of accomplishing some public good which is otherwise impracticable. The power is much more like to that of the public police than that of taxation; it goes but a step further, and that in the same. direction. It is this principle upon which the mill acts are based, Murdock v. Stickney, 8 Cush. 113, and it is analogous to the common law way of necessity. It has nothing to do with public use in the sense that applies to taxation. It rests on |