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moreover, would probably refuse to accept bonds of the new issue in exchange for those of the old, because by the increase in amount the bonds might not be as valuable. Then, again, the financial market might be in such a condition at the time when the second issue was offered as to render a sale difficult if not impossible. Some method, therefore, should be provided by the statute whereby the question of the sufficiency of the estimate made by the board of directors could be examined into, and the true amount fixed as nearly as possible before any definite action is taken toward issuing bonds that become at once a lien upon all the property within the district. The bonds and the interest thereon are paid by revenue derived from an annual assessment upon the real property of the district, all of which is liable to assessment for such purposes. An assessment made and levied for a purpose which has not been submitted to the electors of the district is void, and its collection cannot be enforced. (166) Property that has been legally assessed may be sold for the non-payment of assessments and redeemed from such sale in the manner provided by the statute. (167) An irrigation district organized under the "Wright Act," which continues to exist, is at least a de facto municipal corporation and its officers are de facto officers, and the legality of its organization cannot be collaterally attacked by an individual or pleaded by the district itself for the purpose of defeating obligations which it incurred while acting as such de facto corporation. (168)

It is within the power of the officers of an irrigation district to use the bonds, instead of the proceeds of a sale thereof, in acquiring or constructing irrigation ditches or canals; and bonds issued in pay

(166) Tregear v. Owens, 94 Cal. 317, 29 P. 643 ('92); Woodruff v. Perry, 103 Cal. 611, 37 P. 526 ('94).

(167) Fallbrook Irr. Dist. v. Bradley, 17 Sup. Ct. 56, 164 U. S. 112 ('96); Turlock Irr. Dist. v. Williams, 76 Cal. 360, 18 P. 379 ('88); Cooper v. Miller, 113 Cal. 238, 45 P. 325 ('96); Hughson v. Crane, 115 Cal. 404, 47 P. 120 ('96); Lahman v. Hatch, 124 Cal. 1, 56 P. 621 ('99); Perry v. Otay Irr. Dist., 127 Cal. 565, 60 P. 40 ('00); State v. Brown, 19 Wash. 383, 53 P. 548 ('98). (168) Herring v. Modesto Irr. Dist. [Cal.], 95 Fed. 705 ('99). See, also, Quint v. Hoffman, 103 Cal. 506, 37 P. 514 ('94).

"WRIGHT ACT."

§ 101, District Bonds and Levying Assessments.

ment for such work or property are issued for a valuable consideration, and in substantial compliance with the act. (169) In case of default in the payment of the principal or interest of such bonds the holder may bring his action after presenting the bonds or coupons to the treasurer of the district, and he need not make demand upon the county treasurer. (170) After securing judgment against the irrigation district upon the bonds or coupons and having a writ of execution against the property of the district returned unsatisfied, the holder of the judgment should compel the officers of the district by mandamus to levy an assessment against the property of the district. (171) An application for the appointment of a receiver will be denied. (172) The fact that lands have been excluded from the district in the manner prescribed by the act, after its organization and the issuance of bonds, does not affect the validity of the bonds and cannot be raised by the district as a defense to such bonds. (173)

§ 102. Bonds Proceedings to Ascertain Validity.

In the early years of the formation of incorporated irrigation districts a great deal of the litigation arose over the validity of the bonds of the districts, and investors were slow in making this class of investments. In 1889, to meet this situation, the California legislature provided by the act known as the "Confirmation Act," (174) a special proceeding to be brought by the board of directors in the superior court of the county in which the lands of the district, or some part thereof, were situated, to examine into,

(169) Baltes v. Farmers' Irr. Dist., 60 Neb. 310, 83 N. W. 83 ('00); Kinkade v. Witherop, 29 Wash. 10, 69 P. 399 ('02). (170) Shepard v. Tulare Irr. Dist. [Cal.], 94 Fed. 1 ('99). Mandamus will lie to compel the treasurer of an irrigation district to pay the interest on bonds--Hewell v. Hogin, Treas., Cal., 84 P. 1002 ('06).

(171) Marra v. San Jacinto & P. V. Irr. Dist. [Cal.], 131 Fed. 780 ('04). See, also, Board of Supervisors of Riverside Co. v. Thompson [Cal.], 122 Fed. 860 ('03)..

(172) Marra v. San Jacinto & -P. V. Dist., supra.

(173)

ante, $99.

(174)

Herring v. Modesto Irr. Dist. [Cal.], 95 Fed. 705 ('99);

Laws 1889, p. 212.

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approve and confirm the proceedings of the board and of the district providing for the issue and sale of the bonds. The later act of 1897 provides that the board of directors may bring an action in the superior court of the county in which the office of the board of directors is located, to determine the validity of any levy or issue of bonds. If the board does not begin such a proceeding it may be brought in California by any person owning property within the district that has been assessed, within thirty days after the levy of the assessment or the issuance of the bonds. (175) The order of confirmation entered in such a proceeding is, as to a proper compliance with all the provisions of the act, conclusive upon a landowner of the district who does not appear at the confirmation proceedings. These being proceedings in rem, the landowner is bound thereby if there has been due publication of notice as provided by the statute, notwithstanding there has been no personal service of summons upon him. (176) By this proceeding the purchaser of the bonds of an irrigation district is protected from litigation growing out of attacks upon the bonds by various individual electors of the district as well as by the district officials and the district itself. Encouraged by a statutory proceeding so specific and effective, this class of securities is now fast coming to be considered a perfectly safe form of investment. It is impossible, in a work of this size, to treat in detail all the numerous questions that have arisen in connection with irrigation district bonds. For such detailed treatment the reader is referred to a work dealing exclusively with public

(175) Post, Statutes California, ch. 34, §§263-284.

(176) Crall v. Board Directors Poso Dist., 87 Cal. 140, 26 P. 797 ('90). For other cases under the acts of 1889 and 1897, see Board Directors Modesto Irr. Dist. v. Tregea, 88 Cal. 334, 26 P. 237 ('91); In re Madera Irr. Dist., 92 Cal. 296, 28 P. 272, 675 ('91); Fallbrook Irr. Dist. v. Abila, 106 Cal. 355, 39 P. 794 ('95); In re Central Irr. Dist., 117 Cal. 382, 49 P. 354 ('97); Miller v. Perris Irr. Dist. [Cal.], 85 Fed. 693 ('98); Rialto Irr. Dist. v. Brandon, 103 Cal. 384, 37 P. 484 ('98); People v. Linda Vista Irr. Dist., 128 Cal. 477, 61 P. 86 ('00); Kinkade v. Witherop, 29 Wash. 10, 69 P. 399 ('02); Nampa & M. Irr. Dist. v. Brose, Ida. 83 P. 499 ('05); Anderson v. Grand Val. Irr. Co., 85 P. 313 ('06).

Colo.

"WRIGHT ACT."

§ 102, Bonds-Proceedings to Ascertain Validity.

securities. Suffice it to say for the present occasion that the purchaser of the bonds of incorporated irrigation districts has now nothing to fear either from unsympathetic statutes or decisions.

§ 103. Corporate Nature.

It is well settled that an irrigation district is a public corporation, organized for the purpose of constructing and operating improvements that are for the public welfare, and that its officers are public officials. (177) They have been called municipal corporations. (178) However, it has been held that such a district is not a municipal corporation within the meaning of the constitutional provision limiting the amount of the indebtedness of a "county, city, town, school district or other municipal corporation." (179) But the court could have reached the same conclusion and perhaps with better reason if it had held that irrigation districts were not affected by the constitutional provision referred to, because at the time of the adoption of the constitution such districts were unknown, and the words "municipal corporations," as there used and understood, could not have been intended to embrace this new species of corporate organization. As a public corporation its organization cannot be collaterally attacked, (180) nor the district itself plead the illegality of its own organization as a defense to an action brought upon bonds issued by it. (181)

can

(177) Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112 ('96), 17 Sup. Ct. 56; Herring v. Modesto Irr. Dist. [Cal.], 95 Fed. 705 ('99); Turlock Irr. Dist. v. Williams, 76 Cal. 360, 18 P. 379 ('88). Central Irr. Dist. v. De Lappe, 79 Cal. 351, 21 P. 825 ('89); Crall v. Poso Irr.. Dist., 87 Cal. 140, 26 P. 797 ('90); In re Madera Irr. Dist., 92 Cal. 296, 28 P. 272, 675 ('91); Lincoln & Dawson Co. Irr. Dist. v. McNeal, 60 Neb. 613, 83 N. W. 847 ('00).

(178) Herring v. Modesto Irr. Dist. [Cal.], 95 Fed. 705 ('99).

(179) Board of Directors Middle Kittitas Irr. Dist. v. Peterson, 4 Wash. 147, 29 P. 995 ('92). In this case the court held that such districts were not public corporations, but quasi public.

(180) Quint v. Hoffman, 103 Cal. 506, 37 P. 514 ('94); People v. Linda Vista Irr. Dist., 128 Cal. 477, 61 P. 86 ('00);_ Miller v. Perris Irr. Dist. [Cal.], 85 Fed. 693, 92 Fed. 263 ('99); Purdin v. Wash. Nat. Bldg. & Inv. Assn., Wash., 83 P. 723 ('06). (181) Herring v. Modesto Irr. Dist. [Cal.], 95 Fed. 705 ('99).

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CHAPTER 17.

FEDERAL CONTROL THROUGH RECLAMATION SERVICE.

$104. The "Reclamation Act."

The most important congressional legislation, from the irrigationist's standpoint, is the act of July 17th, 1902, known as the "Reclamation Act." (182) This act provided that all moneys received from the sale and disposal of public lands in all of the arid and semi-arid states excepting Texas, should be set aside and known as the "reclamation fund," to be used in the construction of irrigation works for the storage, diversion and development of waters for the reclamation of arid and semi-arid lands. This act made possible the construction of irrigation systems and reservoirs theretofore impossible. These vast enterprises will give to the farmer and home-builder water for his land at the lowest possible cost of construction, with no fancy profit for some promoter. Works constructed by private corporations are built, of course, for profit, and every dollar that the settler can pay is sure to be exacted. The possible saving in cost to the consumer, and the projection of irrigation works too large and expensive for private enterprise, with the myriad of homes upon the arid wastes that they foretell, makes this act, short and simple though it is, one of the great landmarks in the legislation of the country.

§ 105. The Act in Operation.

The origin of all federal authority in this connection is necessarily traceable to congress, and congress has made the secretary of the interior the responsible officer, from whom all others connected with the reclamation service derive their authority. The reclamation act is very short and makes no provision as to the manner of carrying out its very general provisions. This is left entirely in the hands of the secretary of the interior, who, by certain rules and (182) Post, §§178-178h.