Reclamation Dist. No. 124 v. Gray

Foote, C. This action was brought to recover an assessment levied upon the land of Mr. Gray by the commissioners of assessment of an alleged reclamation _district in the county of Calaveras. The complaint was demurred to, on the grounds that the plaintiff had no authority to sue, because it had never been legally formed or organized by. the board of supervisors, to whom the petition for said formation had been presented, in that the said board in approving the petition found that certain lands embraced in the proposed district had been improperly included therein, and that therefore such approval was void.

The second ground of demurrer is, that the complaint does not state facts sufficient to constitute a cause of action, because it appears from the face of the complaint that the reclamation district.was never legally formed or organized, for the reason that upon the'petition presented to the board of supervisors that body found that certain of the lands embraced in the petition for the formation of the district were improperly included, and because of such finding of improper inclusion, the approval of the petition by the board, “ in the manner and in the terms set forth in said complaint, was without authority of law, illegal, and void”; that an act of the legislature purporting to legalize and validate the reclamation district only validated, if at all, the district as of the date of the approval of the act, and validated no act of the board of supervisors or of the board of trustees of the district done anterior to the passage of that act, and particularly the acts of the trustees with reference to making by-laws, employing engineers to survey, plan, locate, and estimate the cost of the works necessary for reclamation, and in reporting such estimates to the board of supervisors and asking for the appointment of commissioners of assessment, and also that the order of the board of supervisors in appointing such coinmis[604]sioners was illegal and void, etc.; that the assessment sought in this action to be enforced was based upon the plans and estimates of the board of trustees presented to the board of supervisors, and upon an order of that board appointing commissioners of assessment anterior to the approval of the creation or validating act of the legislature set out in the plaintiff’s complaint.

This demurrer was overruled, and the defendant declining further to answer, judgment as prayed for was given and made for the plaintiff, from which this appeal is taken.

The appellant contends that the board of supervisors had no right to approve the petition as they did; that the statute did not authorize such an approval; that the action of the board amounted to no approval at all, and that such approval was jurisdictional in its nature, and that hence there was no corporate existence, de jure or de facto, as to the reclamation district; that if there was no jurisdiction in the board of supervisors to organize the district, then the legislature did not validate its organization by the act passed, approved March 30, 1874; that assuming such act of the legislature did validate the organization of the reclamation district as of the date of the passage of the curative act, that such act could not validate the prior proceedings of the board of trustees and commissioners relative to the assessment on the lands of the reclamation district.