Mr. Choate's Argument for Appellees. by petitioners and created by qualified electors the assessment according to value shall prevail. We submit that this method of taxation is purely arbitrary and capricious, contrary to the fundamental principles of taxation, and that it deprives the statute of the character of due process. In his opinion in the Madera case, 92 California, 324, Mr. Justice Harrison says: "All taxation has its source in the necessities of organized society, and is limited by such necessity, and can be exercised only by some demand for the public use or welfare. And whether the tax be by direct imposition for revenue, or by assessment for a local improvement, it is based upon the theory that it is in return for the benefit received by the person who pays the tax, or by the property which is assessed. For the purpose of apportioning this benefit, the legislature may determine in advance what property will be benefited, by designating the district within which it is to be collected, as well as the property upon which it is to be imposed, or it may appoint a commission or delegate to a subordinate agency the power to ascertain the extent of this benefit." Under the Wright Act neither the legislature nor any subordinate or local legislative body determines what property will be benefited, either "by designating the district" or by designating "the property upon which" the assessment "is to be imposed." As we have shown, this power of designation and determination is practically vested in the petitioners. They may include any lands susceptible of irrigation, or which, under the construction given to the statute by the Supreme. Court of California in the Modesto case, would be even indirectly benefited thereby, by the increased productiveness of adjoining property, or which were, in their natural state, susceptible of irrigation. Mr. Justice Harrison further says in his opinion in the Madera case: "It is not necessary to show that property within the district may be actually benefited by the local improvement, and, even if it positively appear that no benefit is received, such property is not thereby exempted from bearing its portion of the assessment, nor is the act unconsti VOL. CLXIV-10 Mr. Choate's Argument for Appellees. tutional because it provides that such property shall be assessed." We submit that this statement of the law is simply revolutionary of all established principles, precedents and cases upon this subject, and that the true principle is directly to the contrary. As was said by Chief Justice Shaw, in Wright v. Boston, 9 Cush. 233, the principle is that: "When certain persons are so placed as to have a common interest amongst themselves, but in common with the rest of the community, laws may be justly made, providing that, under suitable and equitable regulations, those common interests shall be so imanaged that those who enjoy the benefits shall equally bear the burden." See also Tide Water Co. v. Coster, 18 N. J. Eq. 518; Stuart v. Palmer, 74 N. Y. 183; Montana Co. v. St. Louis Mining Co., 152 U. S. 160, 169; Brandenstein v. Hoke, 101 California, 131; Macon v. Patty, 57 Mississippi, 378; People v. Brooklyn, 4 N. Y. 419; Hammett v. Philadelphia, 65 Penn. St. 146; In re Washington Avenue, 69 Penn. St. 352. The concluding sentence in the last case is entirely apposite. "There is a clear implication from the primary declaration of the inherent and indefeasible right of property, followed by the clauses guarding it against specific transgressions" [referring to the usual constitutional limitations] "that covers it with an ægis of protection against all unjust, unreasonable and palpably unequal exactions under any name or pretext. Nor is this sanctity incompatible with the taxing power or that of eminent domain, where for the good of the whole people, burdens may be imposed or property taken. I admit that the power to tax is unbounded by any express limit in the constitution that it may be exercised to the full extent of the public exigency. I concede that it differs from the power of eminent domain, and has no thought of compensation by way of a return for that which it takes and applies to the public good, further than all derive benefit from the purpose to which it is applied. But, nevertheless, taxation is bounded in its exercise by its own nature, essential characteristics and purpose. It must therefore visit all alike in a reasonably Mr. Choate's Argument for Appellees. practical way, of which the legislature may judge, but within the just limits of what is taxation. Like the rain, it may fall upon the people in districts and by turns, but still it must be public in its purpose, and reasonably just and equal in its distribution, and cannot sacrifice individual right by a palpably unjust exaction. To do so is confiscation, not taxation; extortion, not assessment, and falls within the clearly implied restriction in the Bill of Rights." Later Pennsylvania cases still more forcibly affirm this doctrine. Allegheny City v. Western Penn. R., 138 Penn. St. 375; Pittsburgh's Petition, 138 Penn. St. 401; Morewood Avenue, 159 Penn. St. 20; Park Ave. Sewers, 169 Penn. St. 433. See also State v. Newark, 37 N. J. Law, 415; Stuart v. Palmer, 74 N. Y. 183; Thomas v. Gain, 35 Michigan, 155; People v. Jefferson County Court, 55 N. Y. 604; Cypress Pond Draining Co. v. Hooper, 2 Met. (Ky.) 350; Davidson v. New Orleans, 96 U. S. 97; Hagar v. Reclamation District, 111 U. S. 701. IV. Assuming again, for the sake of the argument, that the statute in question is a valid exercise of legislative power in respect to the formation of the district by the means and through the agencies provided, and that the mode of assessment can be regarded as due process of law, we claim that the total want of an opportunity to be heard on the question of the expediency of forming the district, on the question of boundaries, on the questions of cost and scheme of improvement, and on the question of benefit received, deprives the act of the constitutional character of due process of law as it has been heretofore defined by this court. The only cearing accorded to the landholder, from the beginning to the end of the scheme, from the time of the filing of the petition until his land is sold out for non-payment of assessment, is the very scanty right of being heard upon the question of the valuation of his own property, and perhaps of other property, included in the district. That is accorded to him apparently as an idle form; for even in respect to that limited point, if he cannot be heard on the question of benefit received, the hearing is utterly nugatory. Mr. Choate's Argument for Appellees. The principle has been thus stated by the Supreme Court of California: "It is a principle which underlies all forms of government by law that a citizen shall not be deprived of life, liberty, or property, without due process of law. The legis lature has no power to take away a man's property, nor can it authorize its agents to do so, without first providing for personal notice to be given to him and for a full opportunity of time, place and tribunal to be heard in defence of his rights. This constitutional guarantee is not confined to judicial proceedings, but extends to every case in which a citizen may be deprived of life, liberty or property, whether the proceeding be judicial, administrative or executive in its nature." Mulligan v. Smith, 59 California, 230. (a) In regard to the fundamental question as to whether there shall be an irrigation district, there is no hearing because the supervisors to whom the petition is to be presented have no power to consider or determine that question. It is idle, we submit, to say as the Supreme Court of California does, that in this respect the grievance of the landholder is the same as is suffered by everybody within the limits of a municipal or school district whose organization and boundaries are to be determined by a popular vote of the residents of the proposed district. There is no resemblance whatever between the cases. (b) There is no hearing, as matter of right, accorded to the landholder upon the question of boundaries. He may get notice, it is true, if he happens to take the local paper, that the petition is to be presented, but there is no right given him to present objections, and no duty imposed upon the supervisors to hear his objections. The right to be heard in tax cases is a constitutional one and indefeasible, and applies to these special assessments for local improvements. County of Santa Clara v. Southern Pacific Railway, 18 Fed. Rep. 385; Scott v. Toledo, 36 Fed. Rep. 385; Meyers v. Shields, 61 Fed. Rep. 713; Ulman v. Baltimore, 72 Maryland, 587; Railroad Tax cases, 13 Fed. Rep. 722; Stuart v. Palmer, 74 N. Y. 183. Mr. Choate's Argument for Appellees. (e) As to the scheme of irrigation and its practicability and cost there is no pretence that these landholders who are to pay are to be consulted or to have a hearing in any respect whatever. The audacious claim is made on the part of the upholders of the system that the mere right of being heard each on the value of his own land, without more, and without any right to be heard on the total cost or the proportional burden which he is to bear, or the benefit which he is to receive, is sufficient to uphold the act. In answer to this objection, or rather in answer to the more limited objection that the act makes no provision for a hearing to be granted to the owners of the land prior to the organization of the district, it is claimed by Mr. Justice Harrison, in his opinion in the Madera case, 92 California, 323, that the proceeding up to that point is merely for the creation of a public corporation, which is to be invested with certain political duties which it is to exercise in behalf of the State. He claims that it has never been held that the inhabitants of a district are entitled to notice and hearing upon a proposition to submit such a question to a popular vote; that it would be competent for the legislature to enact it without such a submission; and that it has as much power to create the district in accordance with the will of a majority of the electors. We care not by what name the legal entity created by the act may be called, whether a public or a quasi or a semi-quasi, or, as it has been called by one learned judge, a bastard public-private corporation, but we do deny most emphatically that the function with which it is invested, the duties which it is to discharge are in any manner political duties to be exercised in behalf of the State. It is nothing more or less than a service to be rendered to the landowners of the district for their own account without any intervention or interest of the public. It is for these landowners that the directors are to procure and furnish the water for use or for sale. It is for them and at their expense that they are to issue the bonds. It is for them that the directors are to mortgage the property acquired and to con |