Dean v. Davis

By the Court, Crockett, J.: Levee District No. 5 was organized under the act of March 25, 1868, entitled “ An Act to provide for the protection of certain lands in the county of Sutter from overflow” (Stats. 1867-8, 316), and the plaintiff, being the owner of certain lands within the district, Avhich have been assessed for reclamation purposes, brings this action against the reclamation fund commissioners and the county auditor and treasurer, to cancel the assessment, and for a perpetual injunction restraining its collection. The court beIoav sustained a general demurrer to the complaint, and entered a judgment for the defendants from which the plaintiff appeals.

The first section of the act under which the district was organized authorizes and requires the Board of Supervisors of Sutter County “to protect lands from overfkrw” in that [408]county, “upon the conditions and in the manner” thereafter provided. The act itself then provides specially for the organization of “Levee District Number One ” in said county, and directs, in section 22, in what method other districts may be thereafter formed. That section is in these words: “"Whenever a petition shall be received by said 'Board of Supervisors from persons in possession of more than one-half of the acres of any specified portion of said county, asking to be set apart and erected into a levee district, said board shall at once erect such territory into a levee district, and place it under the provisions of this act, to be called Levee District Number Two, Three and so on, as the case may be; provid'ed, that it shall not be required to submit the question of tax to a vote of the people of any district so erected.” There is no other provision in the entire act, in respect to the proceedings to be had in the organization of a district by the Board of Supervisors, but there are numerous details as to the method by which the reclamation is to be effected and paid for. Plans for the work are to be adopted by the board, contracts let for the performance of, the work, and assessments to be levied and collected to defray the cost. The assessment which the plaintiff seeks to have set aside as invalid, is assailed in the complaint on the grounds: 1st. That the persons who petitioned for the formation of the district did not own and were notin the possession of one-half or more of the acreage in the proposed district; but, on the contrary, were the owners and in possession of not more than one-tenth part thereof; and that the representation contained in the petition to the effect that the petitioners were the owners of more than one-half of the acreage, “was, to the knowledge of said petitioners, and all of them, and to said Board of Supervisors, false and fraudulent;” that “the said board, and each of the members thereof, well knew that said petition had not been received from persons in possession of more than ” óne-half of the acreage;” and before making the order organizing the district, heard no evidence as to the truth of the petition, but made the order upon the petition alone. 2d. That after organizing the district, the Board of Supervisors illegally