Myrick, J., concurring: I. As to whether the object of the act is expressed in its title.
The title is “An act to promote drainage.” It was held in Goldthwait v. Inhabitants etc., 5 Gray, 63, that the word “ drain” has no technical or exact meaning. Webster’s Dictionary defines the word “ drain” thus:
1. To draw off by degrees; to cause to flow gradually out or off; hence, to cause the exhaustion of.
2. To exhaust of liquid contents by draining them off; to make gradually dry or empty, to deprive of moisture; hence, to exhaust.
3. To cause to pass through some porous mass or substance for the purpose of clarifying; to filter.
And, “ Drainage (Engin.), the system of drains and their operation, by which water is removed from towns, railway beds, and other works.”
The definition of the word “drain” given in Worcester’s Dictionary is somewhat different from Webster’s, in that the idea expressed in the third definition as above is entirely omitted; thus showing that lexicographers differ.
[649]Now, is it the object of the act, that the waters flowing-down the river channels, bearing mining debris, shall be so impounded as that it shall flow off gradually; that the debris shall be exhausted of water and rendered dry; that the water shall pass through some porous substance, as, dams, for the purpose of being clarified of the debris; that they shall be held impounded so that the debris may settle, the waters then to pass off, without carrying the debris into the channels below? If yea, do not these purposes all come within the definitions ? And if it is designed that the waters flowing in the lower channels, near cities and in the farming regions, shall be free from sediment, so that the channels shall not be "filled and thus cause overflows, is not this and the construction of embankments parts of a system of drainage ? I have examined the act in question, and I have not observed any provision inconsistent with, or having other objects in view, than the promotion of drainage. The Legislature has power to deem that a Board of Drainage Commissioners, a State Engineer, reports of such officers, the control of debris from mining and other operations, the improvement and rectification of river channels, the erection of embankments or dykes necessary for the protection of lands, towns, or cities from inundation, the creation of districts, and of district hoards of directors, the erection of works, the condemnation of needed lands, the imposing and collection of assessments to provide necessary funds, to be proper parts of a system for the promotion of drainage; and if so, its opinion in that regard is binding upon us.
The people of this State have, through their regularly constituted representatives, declared in favor of such a system, with such provisions; and I see nothing in the act which renders it in this regard unconstitutional.
II. The proposition that the act in question is local, is scarcely tenable. Counsel for appellants state in their brief, in arguing upon this point: “ The Court will take judicial notice of what portion of our State furnishes debris from mines,” and they further state that “ the only drainage district-that ever can be formed under this act, and receive the benefit of the State tax, is the one attacked in this suit, and which. assumes to embrace the territory drained by the Sac[650]ramento River and its tributaries.” It may well be doubted if this Court can take judicial notice of what portion of the State furnishes debris from mines, and it can hardly be practicable for counsel to forecast the possible future mining territory of the State. I apprehend that such knowledge would be very valuable. Who can tell whether at the headwaters of nearly every river in the State, from the Santa Ana to the Klamath—the Los Angeles, the San Gabriel, the San Joaquin, the Kern, the Merced, the Tuolumne, the Calaveras, Trinity, Humboldt, Eel, Russian—there are not mineral-bearing lands, which will next year, or at some time, by hydraulic or other mining, yield debris to be carried down the streams ? The act is for the whole state, wherever there may be occasion for its operation, at the present time, as well as any future period. The area drained by the Sacramento River and the other rivers above named (no one of which other rivers is tributary to the Sacramento), comprises the larger portion of the State, and we are not judicially advised but that there have been and are at the present day mining operations on the Tuolumne, Kern, San Gabriel, Calaveras, Klamath, Trinity, Shasta, and others not 'within the drainage of the Sacramento—even the tributaries of the Truckee.
It is scarcely necessary to say, that with the wisdom or policy of this act the Courts have nothing to do; the personal opinions of Judges as to the propriety of the act is not sought for, and is of little importance. The legislative department is to determine as to the policy of an act; the judicial as to its constitutionality.
III. It is alleged that the act is unconstitutional, in that the taxes to be levied and collected are not uniform, a portion being provided to come from the State at large and a portion from each district. The act provides that the requisite funds shall come from four sources, viz.:
1. A tax of one twentieth of one per cent, is to be levied upon all the property in the district, the money so raised to go into the fund for the district.
2. An assessment pro rata, according to water used, is to be made upon all mines washing earth or ores with water running in the district, the money to be placed to the credit of the district.
[6513]. An assessment per acre, is to be made on swamp and overflowed land which may be reclaimed by operations under the act, such funds also to go to the credit of the district.
4. A State tax of one twentieth of one per cent, is to be levied upon all the property in the State, which fund is to constitute a State drainage construction fund.
It has been suggested that these taxes and assessments, or the funds thereby to be raised, are unequal and unjust, not only because the property in the district is to be assessed for its portion of the State tax, and again for a portion of the district tax, and again (if swamp and overflowed land) for its reclamation, but there is to be a direct pro rata assessment upon mines for using water. In that connection, it is also suggested that if hydraulic mining is a legitimate avocation, and if miners have a legal right to wash ores and earth and let the debris flow into the streams, the imposing of a charge upon them for the protection of the property of persons below them is unjust; and on the other hand, if the miners have not the legal right to wash ores and earth in such manner as that the debris will flow into the streams, to' the detriment of persons below, such persons owning property below should not and can not be made to bear any portion of the burden. There is much force in the suggestions. Let us see, then, how the questions involved might have appeared to the Legislature—for, as has been suggested, with us it is a question of power, not of policy. This Court will take judicial notice that there are rivers in this State, such as the Sacramento and San Joaquin, which are in law navigable streams. Whether They are or are not such in fact, we do not take judicial notice of. It is possible that those streams have, as a matter of fact, during thirty years of mining operations, been so filled with mining and other debris as that the navigation of them has been seriously interfered with; it may be that the Bay of San Francisco and the channels leading into and out of it have become less free for navigation. It may be, also, that the streams above the points of navigation have become so filled by the same cause as that the channels are insufficient to carry off surplus water during rainy seasons, thus causing lands within a given district to be overflowed. There is power in the Legislature to create districts for local improvements, [652]and to declare what lands are benefited, and to fix the charge upon such lands. It may be that the mining and agricultural interests of the State are so far interwoven with the general prosperity as that the State at large would be seriously injured unless each is permitted and protected. It may be to the interest of the State that the impending trial of legal right as between the mining and agricultural interests should be avoided if possible. It may be impossible for the agricultural interests to fix definitely the source of all the debris which has been or may be borne down the streams. It may be impossible for the owners of any one mine to show that the debris from that one mine has not tended to swell the aggregate going to the lower channels. Taking, then, all these suggestions into consideration—and they are but suggestions, and a few only of those which might be made—was it not competent for the Legislature to say: Here are the navigable waters and the other interests in which the State is concerned; the State is also, in a measure, interested in having its tax rolls increased rather than diminished; here are districts drained<by a system of rivers, in which those districts are interested; here are towns and cities to be protected, even the capital of the State; here are agricultural interests, and here are mining interests; here are streams nearly or quite filled with debris, causing the inundation of immense tracts of country; the debris is already there—not threatened only, but there—and by a proper system of drainage these channels can be cleared and the waters flow in proper course; it is to the well-being of the State that none of these interests should be entirely done away with; the portion of the burden of protecting all, to be borne by the State at large, is the proportion that one twentieth of one per cent, of the taxable property of the State bears to the entire cost; the portion of the burden to be borne by the owners of mines besides the property tax, is, the pro rata water tax (or license, or whatever it may be called), named in the act; the portion of the burden to be borne by reclaimed lands, beyond the property tax, and as an increased value by reason of the reclamation, is the assessment thereon authorized by the act; and the portion of the burden to be borne by the district, for its own benefits, as distinct from the others, is the proportion
I have avoided the consideration of the questions in dispute in this State between the mining and agricultural interests, further than to show that the Legislature might, in the interests of the people at large, take those questions into consideration in endeavoring to inaugurate a plan for the compromise and mutual satisfaction of those interests. The Courts, should they be called upon to deal with those questions; must be governed by the law as they find it to be; and the losing party must abide the result; but it is competent for the Legislature, and it may frequently be the wiser, to harmonize conflicting interests, by pursuing such course as may not be inconsistent with the Constitution; and, if the statute of one year shall not be found to operate in accordance with the public will, amendment or repeal may be an adequate remedy.
IY. In my view, however, the act is obnoxious to the Constitution; and that is in that part of it discussed in the opinion of Mr. Justice Ross, and in paragraph ii of the opinion of Mr. Justice McKee. Suppose the act, instead of saying, the Governor, Surveyor-General, and State Engineer shall constitute a Board of Drainage Commissioners to divide the State into several drainage districts, had said, the Governor, the Chief Justice of this Court, and a Judge of the Superior Court of Sacramento County shall constitute a board for the same purpose, would it not have been an endeavor to cast upon members of two departments of the Government functions which are, under the Constitution, to be exercised by the other department ? To create districts and to parcel out the State is a legislative function. The principle decided in Borel v. Boggs, December 28th, 1880, does not apply to this case. The acts involved in that case established the lines of the counties, leaving to the surveyor the duty, merely, of marking the lines thus established.
It may be very much doubted if, by the so-called Drainage Act, even its probable meaning and intent is expressed, Adz.: In speaking of the formation of the districts, it says, “ each of Avhich shall include a territory drained by one natural sys[654]tem of drainage.” It does not say that each district shall include all the territory drained by one system, but that the territory included within the district shall be drained by one system; a distinction leaving open a wide door for the creation of an almost unlimited number of districts.
Therefore, and for the reasons given upon this subject by Mr. Justice McKee and Justice Ross, I concur in the judgment.