Brandenstein v. Hoke

California Supreme Court Jan 25, 1894 No. No. 18233Published

Before: Garoutte

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Holding. The court held that the statute authorizing the creation of levee districts upon the petition of a majority of acreage without notice or opportunity for protest is unconstitutional. Consequently, a district formed under such a void law has no legal existence, and bonds issued by it are unenforceable.

Issues

Whether the statute allowing the creation of levee districts by a majority landowner petition without notice or protest is constitutional.
Whether a levee district organized under an unconstitutional statute can be considered a de facto corporation.
Whether the payment of interest and retention of bond proceeds estops the district from challenging the validity of the bonds.

Disposition. affirmed

Quotations verified verbatim against the opinion

“That it is violative of fundamental principles of constitutional law is apparent upon the slightest inspection.”

“If there is no such law, then there is neither fund commissioners nor corporation, and a void law is no law.”

Synopsis

Constitutional Law—Creation of Levee District—Unconstitutional Statute.—Section 21 of the act of March 25, 1868, providing for the creation of a levee district upon petition of persons in possession of more than one-half of the acres of any specified portion of the county, without vote of the people, without notice, and without opportunity for protest, no discretion being vested in the board of supervisors to reject the petition, or to change the proposed boundaries, is unconstitutional.

Id.—Corporation De Facto—Collateral Attack.—A levee district formed under an unconstitutional act has no rights, and is not entitled to be protected against collateral attack as a corporation de facto.

Id.—Validity of Bonds—Waiver—Estoppel—-Mandamus.—The board of reclamation fund commissioners of a levee district have not waived objection to the validity of the organization of the district under an unconstitutional act, and are not estopped from disputing the validity ' of its bonds, by retaining the benefit derived from the proceeds of their sale, and by the payment of interest upon them for several years; and a holder of bonds of such district which were issued and sold for the purpose of securing funds to carry on improvements in such levee district, is not entitled to a mandamus requiring the board of fund commissioners to levy a tax to pay the principal and interest of the bonds.

Garoutte, J.— The defendants, other than George L. Brander, an intervener, are the supervisors of the county of Sutter, and, as such, are ex officio members of and constitute the board of reclamation fund commissioners of levee district No. 5. The plaintiff is the holder of certain bonds of said district which were issued and sold for the purpose of securing funds to carry on improvements in such levee district. A writ of mandate is prayed for, requiring said board of fund commissioners to- take certain steps provided in the statute looking toward the levy and collection of a tax upon the property within the limits of the district, to be applied in liquidation of the principal and interest of plaintiff’s bonds.

The matters here involved are purely matters of law, [133]and the first and principal question presented involves the constitutionality of the following section of an act of the legislature passed March 25. 1868 (Stats. 1867-68, p. 361):

“ Sec. 21. Whenever a petition shall be received by said board of supervisors from persons in possession omore 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 No. 2, 3, and so on, as the case may be, provided that it shall not be required to submit the question of tax to a vote of the people of any district so erected.”

We cannot bring ourselves to the conclusion that it is necessary to enter into an extended discussion for the purpose of demonstrating the unconstitutionality of the foregoing provision of the statute of this state. That it is violative of fundamental principles of constitutional law is apparent upon the slightest inspection. It will be observed that one petitioner having the possession of a majority of the acreage of the territory which he desires to form into a levee district, has the absolute right to form such district. No notice to his neighbors is required. No opportunity for protest is allowed. No discretion is vested in the board of supervisors to reject the petition, or even change its proposed boundaries.

The duty of the board is entirely perfunctory. The lands of the petitioner’s neighbors may need no reclamation. They may consist of plateaux, where flood waters are never known. They being of great value, may be placed within the lines of the proposed district for the single purpose of bearing the brunt of the taxation which is sure to follow the creation of the district. While these matters may be considered trifles in the eyes of the legislature, yet in the eyes of the law a practice of the things countenanced by this provision involves a violation of man’s gravest constitutional

Brandenstein v. Hoke

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