The Journal of San Diego History
SAN DIEGO HISTORICAL SOCIETY QUARTERLY
Spring 1975, Volume 21, Number 2
James E. Moss, Editor
Thomas L. Scharf, Assistant Editor
“At Fallbrook the train stops for twenty minutes for meals at a little station on about three acres of ground at the mouth of a narrow canon up which the road leads a mile or so to the highlands above. Ye tourist alights, looks around the hills, and then contemptuously at the little bit of land around the station, and sagely remarks, ‘So this is Fallbrook, eh? Well, I don’t want any of it.'”1 These words of the tourist of 1888 hardly reflect the thoughts of the visitor of the 1970s as he enters the “Avocado Capital of the World” at Fallbrook, San Diego County, California, in the southwestern corner of the United States. Water, and the struggle for it, was the key to the transformation of the Fallbrook area from a place of the tourist’s derision to one of his envy. The struggle for water for irrigation purposes was to continue into the 1960s as the people of Fallbrook engaged the giant Marine Corps Base at Camp Pendleton and the federal government in litigation that carried to the United States Circuit Court of Appeals for rights to the Santa Margarita River water.2 However, this was not the first instance of the involvement of water for irrigation, Fallbrook, and the federal courts. On November 16, 1896, the United States Supreme Court handed down its decision in the case of Fallbrook Irrigation District v. Maria King Bradley3, which upheld the constitutionality of the California Irrigation District Law commonly known as the Wright Act.4 In addition to engaging the wife of an English militia colonel and the cattle king of the San Joaquin Valley of California, this landmark decision and case involved some of the most brilliant, respected, and well-known legal talent in the nation. This talent included a former president of the United States, a future ambassador to the Court of St. James, and a former president of the American Bar Association. This study will present the historical background of the Fallbrook Irrigation District Case, the arguments and decision, and the significance of this decision in the development of the semi-arid West.
The whole South is about entering a water-development era that will leave the past in shade.5
From the earliest days water played an important role in the development of the economy of California. As more and more settlers arrived agriculture replaced mining as the number one occupation in the state. As agriculture expanded irrigation was developed so that by 1890 California was the leading state in the nation both in amount of land irrigated and in the application of engineering skills. In the Southern irrigation zone of the state, which included Los Angeles, Riverside, San Bernardino, and San Diego counties, by 1890 55% of all farmers irrigated 12% of total farm acreage. San Diego County lagged behind the nieghboring counties with only 21% of its farmers irrigating 1% of farm acreage. Even though San Diego was behind the rest of southern California in amount of land irrigated the county kept pace in other phases of the boom of the 1880s as its population quadrupled from 8,600 to 35,000 and assessed valuation of property increased ten-fold to $30,000,000.6
As irrigation gained in importance in California the dispute between those who claimed the available water was exacerbated. The state supreme court championed the common law doctrine of riparian rights which vested ownership of water in the owner of the stream banks, whereas the state legislature advanced the arid-region doctrine of prior appropriation (or, “first in time, first in right”).7 This dispute between the riparianists and the appropriators resulted in a sectional rift between the pro-irrigationist south and the anti-irrigationist north. Within this sectional split there raged an economic struggle of the agricultural sector versus the mining and cattle interests, and even within agriculture there was a split between the dry farmers and the irrigationists. Another dispute raged politically among those who favored public ownership and close government supervision of irrigation projects and those favoring a ‘laissez-faire’ policy.8
Matters came to a head in the irrigation crisis in 1886 when the supreme court of California ruled in favor of the riparian interests in the case of Lux v. Haggin. This decision focused attention on the irrigation crisis, and a special session of the legislature was called by Governor Stoneman. This special session was to consider legislation for the purpose of forming irrigation districts and to try to reorganize the state supreme court.9
Both these efforts came to naught, but in 1887 an almost completely new legislature passed the Wright Act. This legislation authorized the organization of irrigation districts to enable owners of land susceptible of irrigation from a common source and by the same system of works to form a district composed of such lands and conduct the irrigation under public auspices.10
Shortly after the legislature enacted the Wright Act first efforts commenced to bring water into Fallbrook for irrigation purposes.11 Following completion of a survey for a flume and the selection of a reservoir site to store gravity flow water from the Temecula River, Ed Fletcher of San Diego sought and obtained approval of his plan to irrigate 5,000 acres from former state engineer W.F. McClure. The Santa Margarita Rancho owned the riparian rights below on the Temecula River, but Fletcher secured approval of the owners of the rancho to form a district and divert the necessary water. The rancho wanted to put 2,500 acres in the district and add another 2,500 acres at a later date.12
There were others interested in making a much larger project. Ignoring the possibility of lack of cooperation from the owners of the rancho, they formed the Fallbrook Water and Power Company and planned to bring 30,000 acres under irrigation. This plan involved condemnation of a dam site on the lower river and pumping the water back to Fallbrook, lifting it 100 feet at great expense. The company purchased riparian rights and began construction, but due to lack of finances and litigation over water rights the plan failed.
Following this initial setback the people of Fallbrook in early 1891 undertook the organization of an irrigation district under the provisions of the Wright Act as amended in 1889 to provide for inclusion and exclusion of land from proposed districts. A petition was circulated among the freeholders of the Fallbrook area, and fifty-five signatures were obtained. The petitioners stated they were “fifty or more freeholders owning lands, of approximately 14,480 acres within the proposed Fallbrook Irrigation District, susceptible to one mode of irrigation from a common source and by the same system of works”, and that they desired to organize themselves into an irrigation district “to provide for the acquisition of water and other property and to distribute water for irrigation purposes.13
Notice of intent to present the petition to the County Board of Supervisors on February 2, 1891, was duly published in the weekly paper, the Fallbrook Review, for three successive weeks.14 At 10:00 A.M. on February 2 the Board of Supervisors received the petition and map of the proposed district and approved the organization bond of $500 to be paid in gold coin of the United States in the event the organization of the district was not effected. The board declared that due notice of intention to present the petition had been given and set February 7 as the date to hear arguments for and against the proposed district.
The entire forenoon session of the February 7 meeting was consumed in hearing evidence as to the susceptibility to irrigation of lands specified in the petition. Richard O’Neill of the Santa Margarita Rancho objected to the granting of the prayer of the petitioners because the lands were not susceptible to irrigation from a common source by the same system of works and the petition had not been signed by 50 freeholders owning lands within the proposed district. The petitioners argued that O’Neill’s lands would be enhanced in value whether he utilized the water furnished or not and for that reason should be included whether he desired it or not. O’Neill’s objection was sustained as to the exclusion of his lands only. Another objector, James G. Martin, declaring himself to be in favor of the district and holding 485 acres of land within the proposed district, wanted 325 acres excluded because this land would receive no benefit from the proposed irrigation, and he was not willing to bear the tax burden. The Board also sustained Martin’s objection. Another group of ten objectors petitioned for exclusion of their property. Declaring themselves as not opposed to a system of irrigation for those who needed it, these ten stated that the greater portion of their lands was not adapted to profitable irrigation, while the lesser portion had an ample supply of water for all purposes. Furthermore, the lands had been included against their wishes and in violation of an understanding with the members of the Boundary Committee whereby those who did not want to be include were to be left out. This petition was denied by the Board because the land was not particularly described and sufficient facts were not presented.15
On February 13, 1891, the Board, in final action on the proposed district, declared that the law had been followed, all lands in the proposed district were susceptible to irrigation from one source, and the petition had been signed by 51 freeholders (exclusive of objectors). On reconsideration the objections of O’Neill and Martin were sustained, and all others were disallowed. The Board divided the district into five divisions and ordered an election for the purpose of determining whether to organize the district or not. Voting precincts (coincident with the divisions of the district) and polling places along with election officials were designated, with the polls to remain open from sunrise to 5:00 P.M.16
Notice of the forthcoming election was published in the Fallbrook Review for five successive weeks, election notices were posted in the precincts at Fallbrook, and the County Clerk was directed to furnish election blanks, papers, ballot envelopes, poll-lists, tally sheets and copies of the Great Register of the County.17
On April 6, 1891, the Board of Supervisors canvassed and certified the March 28 election results. The irrigation district had passed by an overwhelming 70 to 18 vote, and five directors had been elected along with a tax assessor, a collector and a treasurer. Commenting on the election, the San Diego Union said that “Fallbrook has joined the procession of progressive, wide-awake localities” of San Diego County. The editor of the Fallbrook Review declared that “no section of California has availed itself so extensively and intelligently of the Wright law as the County of San Diego, and the result will be unparalleled productiveness in the next three of four years.”18
The San Diego Union was an avid promoter and supporter of irrigation projects and of San Diego County. The Union editors saw irrigation as the key to the prosperity of the back country and this prosperity as the key to the development of the port facilities of San Diego. In an appeal to eastern investors the Union noted that great water systems required large capital and that irrigation would make San Diego County “rich beyond the dreams of the boomers, and nothing else can.” In an article on the Wright law the Union compared irrigation districts to school and reclamation districts in that they enabled a community to do by joint effort what it could not do by individual efforts. Noting the objections to forcing people to join the districts and to pay taxes, the Union went on to say that this was necessary in return for the protection afforded by the community effort through government. It was believed the Wright law had been unpopular at first, but not one single irrigation district had been voted down, and votes in favor of bonds were near unanimous.19
The Union seems to have been a bit premature in claiming that the large land owners favored the Wright law while small owners were complainers. In Fallbrook opposition to the irrigation district appears to have been based on the self-interests of the individuals concerned. Both large and small land owners opposed the district (but not necessarily irrigationr seile the majority of land owners supported the district because it would directly benefit their pocketbooks. Land values in southern California correlated directly with the availability of water. Although the cost of water was high, the majority of people in Fallbrook and in San Diego County realized that the use of water on the lands of southern California “puts more money into more pockets, and puts it there to stay than any other business on earth.”
Immediately after the March election the directors of the District moved to organize and bring water to Fallbrook. In June, 1891, negotiations were underway to obtain water from the Pauba Rancho. In August the Temecula and Pauba Land Company offered to furnish the district with water for $200,000.20
The directors then called for an election to obtain authority to issue $400,000 in bonds to cover expenses of bringing water to Fallbrook. In this election, held on November 28, 1891, the bonds were approved by a 70 to 20 margin.21
In early 1892 as the directors proceeded with their efforts to issue bonds, others were attempting to block them. Under the Confirmation Act22 of 1889 a petition requesting a judicial examination to approve and confirm the organization of the district and the proceedings of its directors was submitted to the Superior Court in San Diego on February 25, 1892. Several persons demurred to this petition and the issuance and sale of its bonds. It appeared that every effort would be made to prevent and hinder the will of the majority of the landowners in Fallbrook from being exercised. Although Judge Clark overruled the demurrers and confirmed the organization and proceedings of the district on May 14, the opposition did not give up. Henrique B. Abila, owner of 4,000 acres (approximately one-third of the land in the district), filed affidavits challenging the validity of signatures on the organization petition with the Superior Court in March, 1893. Judge Torrance granted the district 30 days in which to reply. On June 22 Judge Torrance granted Abila’s motion for a new trial on the grounds that only 49, instead of the required 50, signatures were on the petition.23
The district appealed Torrance’s decision to the state Supreme Court, and in early September, 1893, the statements on appeal of both the district and Abila were filed. As the battle raged in court, other skirmishes were developing. J.T. van Rensalaer, in an interview published in the Union, declared that Richard O’Neill, who still had 2,000 acres in the district, was “neutral”, while there were 6,500 acres “opposed” and only 4,000 acres “for” the district. Van Rensalaer estimated that the cost of bringing water to Fallbrook would be from $800,000 to $1,000,000 and suggested a Hemet, California (a small town about 30 miles north of Fallbrook) corporation as a source of supply. On February 18 the irrigation district’s attorney, John R. Aitken, rebutted van Rensalaer’s statement and claimed that besides Abila’s 4,000 acres, which was being held in trust for minors, owners of less than 1,000 acres were opposed to the district. Aitken said that O’Neill was in favor of the district and had paid his tax the previous year. Aitken claimed that it was feasible to bring water to Fallbrook from Temecula Creek using less than twelve miles of flume, and he observed that Fallbrook land values had doubled since the irrigation district had been formed.24
While these issues were being fought in the newspaper and in the courts, events were developing which would eventually lead to the federal courts. The directors called an election for July 2, 1892, for a special assessment of $6,000 to cover organization expenses. This assessment was approved by a 60 to 28 vote, and on October 10 a special tax of $1.6548 per $100 valuation was assessed and entered on the tax books of the district. Mrs. Maria King Bradley’s bill for this assessment amounted to $51.30, which she neglected to pay because she thought that it was an illegal tax.25
The collector of the district, Mathew Tomlins, published in a San Diego County newspaper for four successive weeks a delinquent tax list and a notice of sale to be held on February 20, 1893. This sale was continued by Tomlins for one week, at which time he bought Mrs. Bradley’s land for the district for $54.36 ($51.30 tax assessment plus late charges). Twelve months later the district would be entitled to a deed for the property.
Mrs. Bradley, availing herself of her status as a subject of Great Britain, brought suit under federal law to prevent the deed for her property from being delivered by Tomlins to the district. In May, 1893, Mrs. Bradley filed her bill of complaint in the Federal District Court for the Southern District of California in Los Angeles. The defendants appeared in court in mid-August and on September 1 filed their demurrer to the bill of complaint. On January 5, 1894, Judge Erskine M. Ross issued a writ enjoining Tomlins from delivering the deed to the district.26
While Mrs. Bradley was awaiting her day in federal court, action proceeded on the Abila case in the state courts. On March 11, 1895, the state Supreme Court in two separate decisions remanded the Abila case to the Superior Court for a new trial. In the first of these decisions the Superior Court decision granting a new trial was affirmed on the basis of less than 50 freeholders having signed the organization petition. In the second decision that portion of the Superior Court decision denying a new trial was reversed on the basis that the November 28, 1891, bond election was void because the polls were not kept open during the hours specified by the Wright Act and the results of that election had not been properly recorded. The court laid the burden of proof on the district to show the validity of its proceedings and to show that any omission or error did not affect the substantial rights of the parties concerned.27
Shortly after the Abila case was remanded for a new trial in San Diego, Judge Ross in Los Angeles was preparing to rule on the Irrigation District’s demurrer to Mrs. Bradley’s bill of complaint. In a decision that “fell like a thunderbolt from the clear heaven, staggering investors and invalidating all the bonds issued under the [Wright l act,” Judge Ross declared the Wright Act unconstitutional on July 22, 1895.28
Mrs. Bradley’s suit in equity alleged that the Wright Act conflicted with the provisions of the California constitution, that it provided for the taking of property without due process of law in contravention of the Fourteenth Amendment to the Constitution of the United States, and that it provided for the taking of private property for a private use.29
Judge Ross noted that similar issues had been raised in other cases involving the validity of the Wright Act, and the Supreme Court of California had ruled these arguments invalid. Ross concluded that although the state court decisions were entitled to great respect, they did not absolve the federal courts sitting within the same state from the obligation of exercising independent judgement to determine if state legislation violated federal constitutional provisions. Ross declared that the decision of any state court was not conclusively binding upon any federal court in determining if the power of the state could be legally exercised.30
Not only was the state court to be subjected to Ross’ judicial review, but so was the legislature. Citing Cooley’s Constitutional Limitations Ross said that even though the legislature in the Wright Act had declared irrigation a public use, this did not “necessarily make it so.” Rather, “a work was public or private depending upon its nature and use.” Ross ruled that streets and highways, water for the use of cities and towns, and water for public use for irrigation purposes, were all public in nature. But under the district concept provided for by the Wright Act, Ross declared only certain persons in the district were entitled to the use of the water; and so even though others might derive incidental benefits, the use was private, not public. He concluded that the taking of private property for irrigation districts under the Wright Act to furnish water for landowners only, and not for the general use of all residents in the district, was not a public use justifying the exercise of eminent domain power.31
In his final point of law Ross ruled that under the Wright Act the landowners did not have the opportunity to contest the validity of the petition or the proceedings thereunder because the county board of supervisors had no power to rule on the merits of the petition, and this could finally result in the taking of private property without due process.
In addition to his other objections concerning the validity of the Wright Act, Ross declared that the Fallbrook Irrigation District was experimental in nature, since there was no stream or body of water nearby; and the bond money would be used to build works to impound rain and flood waters, which were unpredictable in nature. Furthermore, one 80 acre piece of land was an unproved homestead of Henry Wilbur and therefore still belonged to the federal government, and another parcel of 251 acres belonged to the State of California, since A.J. Foss (one of the district directors) had paid only 20% of the purchase price. To irrigate these two parcels, which were exempt from assessment, added an additional $9,000 to the bonds of the district.32
Ross was fully aware of the impact of his ruling. He took notice of the large sums of money invested in works under construction, the bonds that had been authorized and issued, the importance of irrigation in southern California and that individuals might not be able to secure irrigation water on their own, and the fact that the Supreme Court of California had several times upheld the validity of the Wright law. Nevertheless, he felt compelled to protect the private property of individuals against forcible taking without due process of law. In conclusion he stated:
Such questions are not to be determined by considerations of expediency or hardship. Unfortunate as it will be if losses result to investors, and desirable as it undoubtedly is, in this section of the country, that irrigation facilities be improved and extended, it is far more important that the provisions of that great charter, which is the sheet anchor of safety, be in all things observed and enforced.33
Reaction to the decision in the Fallbrook case was widespread and rapid. Newspapers throughout California featured articles and editorials commenting on the ruling of Judge Ross. The San Francisco Chronicle reported that the invalidation of $15.5 million in bonds (of which $8.3 million had already been issued) had caused a despondency among bondholders and would result in a bad effect on foreign capitalists and the standing of American securities abroad. Editorially the Chronicle, observing that California had too much at stake to be contented with the decision, bitterly attacked Ross for “such a sudden accession of legal acumen and judicial infallibility as to decide that the Supreme Court of California has been wrong all the time, and that it has been reserved for a Federal Judge to know, all by himself, all that there is to be known about a statute of California.”34 The Los Angeles Times, while expecting Ross’ decision to be upheld by the Supreme Court, hoped for a way out of the legal tangle. The Times reported that irrigation congresses in Los Angeles in 1893 and Denver in 1894 had urged early settlement of a similar case (Tregea v. Modesto Irrigation District, 164 U.S. 179) which was scheduled for argument before the United States Supreme Court in the October term, 1895. The San Diego Union deplored the consternation caused all over the state by the uncertainty relating to irrigation and expected Ross’ decision to be upheld, while the San Diego Evening Sun foresaw a reversal of Judge Ross’ decision. The papers noted opposition to the Wright law, not only by those who were against irrigation law but by those who thought that it impeded the actual development of water and that private enterprise would prove more efficient. The Sacramento Evening Bee berated the “unthinking among the editors of California” for their denunciation of Judge Ross for “performing his sworn duty as a Judge.”35
Following the ruling on the defendant’s demurrer, activity continued both in and out of court. On August 19 Ross overruled the demurrer to the amended bill of complaint which had been filed on August 15 to cover all the points raised in the July 22 ruling. On September 19 the case formally was tried in court and Judge Ross entered his final decree in favor of the plaintiff, Mrs. Bradley. Meanwhile, the attorneys for the irrigation district were making plans for appeal to the Supreme Court, and on September 20 they appeared before Judge Ross. Ross granted the appeal and ordered the parties to appear in Washington, D.C., before the Supreme Court on October 14, 1895.36
Outside the courtroom the proponents and opponents of the Wright Act were marshaling their forces for the coming fight. The drive to raise money in opposition was being conducted by attorney George H. Maxwell of San Francisco and A.J. Conde of Riverside, both of the state committee to defeat the Wright Act. Maxwell was serving as attorney for Tregea in the action against the Modesto Irrigation District which was to be argued before the Supreme Court with the Fallbrook case. The money raised by Maxwell and Conde was used to employ the services of the noted orator and lawyer, Joseph Hodges Choate, to argue the two cases before the Supreme Court. Evidently a large part of the financial support for Choate’s employment came from Henry Miller, the cattle king of the San Joaquin Valley.37
The champions of the Wright Act were not idle while their opponents were preparing their assault. Former Judge James A. Waymire of San Francisco was busily engaged in organizing and leading a committee to press the cause of the bondholders before the Supreme Court. Because of his personal interest due to his large holdings of land and irrigation district bonds, Waymire elected not to argue the case himself, but instead sought to employ some of the best known legal talent in the nation. Judge John F. Dillon, author of the standard text on the law of municipal corporations, was employed by irrigation district bondholders to prepare a brief of the case for presentation before the Supreme Court. Because of Dillon’s advanced age and illness Waymire sought to augment his forces by the prestigious addition of ex-President Benjamin Harrison to argue the case before the high court. Harrison was offered a $1,000 retainer plus “such sum as you consider your services worth.” He was finally retained for $2,000 with the final fee to be worked out at a ater date.38
After his retention as counsel Harrison set out to arrange his schedule for the appearance before the court. Due to the death of Mr. Justice Jackson and at the request of the appellants the order setting October 21 as the date for the hearing of the Fallbrook and Modesto cases was vacated by the Supreme Court, thereby giving Harrison more time for preparation of what he considered to be a very important case.39
After reviewing Waymire’s opinion as to the scope and effect of Judge Ross’ decision and Dillon’s brief, Harrison outlined his plan for argument. He intended to narrow his argument to a few general principles. He thought the power of taxation to promote local improvements was so widely recognized that it could be assumed. He intended to cite Paulson v. Portland, 149 U.S. 30 (1892), as precedent establishing clearly power of legislatures to delegate local improvement authority to Boards of Supervisors or City Councils. Agreeing with Dillon, he felt the Supreme Court should follow state courts in construing state statutes, and that in essence it was for the people of California to decide the issue of the oppressiveness of the Wright Law. Harrison felt that due process had been followed, that irrigation in California was a public use, and that any hearing under the Wright Act should be upon assessed valuation of property, not upon benefits received under the district. According to Harrison, the only question left for the court to decide, if it accepted his analysis, was whether each landholder was entitled to be heard on inclusion in the irrigation district.40
While Harrison and Dillon were preparing for their January date in court, Waymire continued actively to lobby for his interests. He submitted his written opinion of Judge Ross’ decision to the American Law Review, and this opinion became the basis for a note in, the Review. The note, mentioning the surprise and grief with which Ross’ decision was received throughout all the arid portions of the nation, centered on the legal question as to whether irrigation was a public or a private use and cited the seven California Supreme Court decisions holding that irrigation was public in nature. Taking Ross to task for differentiating between municipal water supplies and irrigation as public and private, the note stressed the similarities between municipal water supplies and irrigation works. Waymire added that the construction of irrigation works had been the concern of kings, governments and states in every recorded age. He argued that since railroads were held to be a public use for conveying food to market, then water for growing food must also be a public use.41
In an obvious effort to influence the decision of the high court, Waymire followed his discussion of the public versus private use issue by an analysis of why several of the Supreme Court Justices would uphold the validity of the Wright Act. Mr. Justice Field, a resident of California and “the Nestor of the Court,” understood the need for upholding legislation aimed at reclaiming arid lands as evidenced in Hagar v. Reclamation District, 111 U.S. 701 (1883). (Waymire neglected to mention the fact that Field’s reputation as a conservative protector of private property was well-established). Mr. Justice Gray was termed the equal, if not the superior, of his great predecessor on the Massachusetts Supreme Court Bench, Chief Justice Shaw. (As Field was the protector of private property, so Shaw had been the champion of public use doctrines). Mr. Justice Brewer was from a semi-arid state and understood the benefits of the Wright law while Mr. Justices Harlan and Brown had proved themselves of “too broad a gauge to have any doubt upon such a question.”
The note concluded by explaining its departure from the rule enjoining silence “pendentelite” because it was felt this rule had no application to public questions involving “precedents for the future settlement of the rights of millions who are not and cannot now be before the court.” The note neglected to mention the fact that the financial well-being of Waymire hung in the balance of the court’s decision.
An article in the Yale Law Journal viewed the issue in another light.42William P. Aiken felt that some degree of public regulation and control of irrigation works was necessary in order to obtain the large amounts of capital required. He noted that the Wright Act combined the public powers of taxation and eminent domain with home rule as to the extent of the debt incurred and the details of management, but there were severe problems in the administration of the act: the power of taxation and sales of land for delinquent assessments, arbitrary incorporation of high-valuation improved property of cities and towns within the districts, absolute power of Boards of Supervisors to include and exclude lands as they saw fit, power of the directors to assess when bond elections failed of passage, and high debt in relation to value of property within the districts.43 Aiken felt that Ross had failed to give full consideration to cases arising under the state’s Reclamation Act (upon which the Wright Act was based), in whose constitutionality Ross had acquiesced as one of the judges of the California Supreme Court.
A comment on Ross’ decision in the Harvard Law Review also noted that it was difficult to distinguish the Fallbrook case from such cases as Hagar v. Reclamation District in which an act to drain swamp lands was upheld. Citing a recent Nebraska case, Paxton Irrigating Co. v. Farmers’ Irrigation Co., the Review felt that legislatures could provide for phases of the public benefit other than health and that irrigation was a proper field for such legislation. The case of Wurts v. Hoagland did not rely on the public health aspect of reclamation when it was held that legislatures have the power “to establish regulations by which adjoining lands, held by various owners in severalty, and in the improvement of which all have a common interest, but which by reason of the peculiar natural condition of the whole tract cannot be improved or enjoyed by any of them without the concurrence of all, may be reclaimed and made useful at their joint expense.”44
On January 23, 24, and 27, 1896 the cases of Fallbrook Irrigation District v. Bradley and Tregea v. Modesto Irrigation District were argued before the United States Supreme Court. Appearing for the appellees were George H. Maxwell, of the state committee to defeat the Wright Act, and Joseph H. Choate of New York.45 Filing a brief on behalf of irrigation district bondholders were William D. Guthrie and Clarence A. Seward. Appearing for the appellants were former California Supreme Court Justice A.L. Rhodes, John R. Aitken and Samuel F. Smith (original counsel for the irrigation district), John F. Dillon, and ex-President Benjamin Harrison. In the Tregea case, C.C. Wright, the author of the legislation whose constitutionality was being challenged, appeared for the Modesto Irrigation District.
The central argument of the appellees was that the Wright Act provided for the taking of private property for a private use and as such violated both the constitution of California and the Fourteenth Amendment of the Constitution of the United States which states-“nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Choate argued that where money was sought “to be taken by the State from and individual by the exercise of the power of taxation in any form …it must be for the purpose of expenditure for a public object or use, and the test of the validity of a law enacted for that purpose must necessarily be the essential character of the direct object of the expenditure proposed.” Citing Lowell v. Boston, Choate averred that whatever benefits might accrue from irrigation did not justify the use of public money raised by taxation to promote “private interests and the prosperity of private enterprises or business.”46
In establishing criteria for what was public versus private use Choate cited Loan Association v. Topeka where the court said
in deciding whether in the given case the object for which the taxes are assessed falls upon the one side or the other of this line, they must be governed mainly by the course and usage of the government, the objects for which taxes have been customarily and by long course of legislation levied, what objects or purposes have been considered necessary to the support and proper use of the government, whether state or municipal… Whatever lawfully pertains to this and is sanctioned by time and the acquiessence of the people may well be held to belong to the public use, and proper for the maintenance of good government:47
Choate distinguished the Wright Act from drainage, reclamation, levee and protection statutes on grounds that in irrigation benefit did not accrue to the farmer merely by the making of the improvement, but rather by the use of it. He concluded that the Wright Act:
violate(s) the fundamental principles on which the right to the ownership and use of private property rests, takes from the citizen money to expend for the private use of his neighbors, does this without due process of law, and exceeds the legitimate authority of the legislature to accomplish the end sought by it, in any form or by any methods.48
After presenting his primary argument Choate attacked the Wright Act on the grounds that the legislature had delegated its sovereign power of government to private citizens, that those who would receive the benefits did not “equally bear the burden” of costs, and that there was no opportunity to be heard on the question of formation, boundaries, and costs of the proposed districts.49
The opinion of the court was delivered by Mr. Justice Peckham on November 16, 1896, with Mr. Chief Justice Fuller and Mr. Justice Field dissenting. Upholding in effect the concept of what Hurst has termed “dynamic” versus “static” property rights, the majority of the court held irrigation to be in the public use. Thus they confirmed the constitutionality of the Wright Act.50
After reviewing the importance of the question before the court to the people of California and those of other arid or semi-arid states, the court addressed itself to the matter of jurisdiction in the case and held that it was the duty of the court to decide any conflict between the acts of state legislatures as construed by the state courts and the Federal Constitution or any valid acts of Congress.51
The court also held that it should not declare the act in violation of the state constitution in “the face of clear and repeated decisions of the highest court of the State to the contrary, under the pretext that we were deciding principles of general constitutional law.” Mr. Justice Peckham declared that the court had not held the contrary in Loan Association v. Topeka, but rather that this case had been decided on the grounds that private property had been taken by taxation for a private use. The court thereby reaffirmed the view delivered by Mr. Chief Justice Waite in Munn v. Illinois that “for protection against abuses by legislatures the people must resort to the polls, not to the courts.”52 This declaration of judicial self-restraint accompanied the decision recognizing that legislatures might regulate business on behalf of the public interest.53
In addition to following the precedent set in Munn, the Fallbrook decision was consistent with Waite’s decision, qualifying Munn, in 1886 in Stone v. Farmers’ Loan and Trust Co.
From what has thus been said it is not to be inferred that this power of limitation or regulation is itself without limit. This power to regulate is not a power to destroy, and limitation is not the equivalent of confiscation… the state cannot… do that which in law amounts to a taking of private property for public use without just compensation, or without due process of law.54
Historian Carl Swisher points out that from the time of this decision onward for the next 50 years the court “built out the range of due process protections to patrol the line at which state regulation impinged upon rights of property.” Of course this line was not always clear, and the courts moved towards, and then away from an expansion of regulatory power which was to mark the public preference in the 1930s.55
After substantiating its claim to jurisdiction in the case, the court affirmed the position taken by Mr. Justice Miller’s opinion in Davidson v. New Orleans.
whenever by the laws of the State or by state authority a tax, assessment, servitude or other burden is imposed upon property for the public use, whether it be for the whole State or of some more limited portion of the community, and those laws provide for a mode of confirming or contesting the charge thus imposed in the ordinary courts of justice, with such notice to the person or such proceeding in regard to the property as is appropriate to the nature of the case, the judgment in such proceedings cannot be said to deprive the owner of his property without due process of law, however obnoxious it may be to other objections.56
Mr. Justice Peckham then proceeded to review the various objections that had been raised by counsel for the appellees. The first question involved what constituted a public use, and the court decided that there was no doubt that irrigation of arid land was a public purpose, and therefore that water so used was a public use. Citing Cole v. Lagrange to the effect that private property could only be taken for a public use (whether the taking was by the right of eminent domain or by taxation), the court took a very pragmatic stand when it said “the use must be regarded as a public use, or else it would seem to follow that no general scheme of irrigation can be formed or carried into effect.”57
Likening irrigation to reclamation, as public in nature, the court reaffirmed its commitment to dynamic property by stating:
If it be essential or material for the prosperity of the community, and if the improvement be one in which all the landowners have to a certain extent a common interest, and the improvement cannot be accomplished without the concurrence of all or nearly all of such owners by reason of the peculiar natural condition of the tract sought to be reclaimed, then such reclamation may be made and the land rendered useful to all and at their joint expense. In such case the absolute right of each individual owner of land must yield to a certain extent or be modified by corresponding rights on the part of other owners for what is declared upon the whole to be for the public benefit.58
The court then proceeded to dispose of the other objections raised by the appellees by finding that the land which could be included in irrigation districts was sufficiently limited by the Wright Act to arid, and unproductive land; that due process and equal protection had been given when the customary State procedure for assessment and collection of taxes was followed and an opportunity for hearing was provided; that irrigation districts when formed in the manner specified by the law are public corporations and even if some of their decisions are inequitable this inequitability does not reach to the level of a federal constitutional problem.
Mr. Justice Field, dissenting from the majority of the court along with Mr. Chief Justice Fuller, was consistent with his dissents in the Slaughterhouse and in the Granger cases when he held
The principle upon which the opinion of the majority proceeds is, in my judgment, subversive of the rights of private property, heretofore believed to be protected by constitutional guaranties against legislative interference…
… the Court holds that property loses something of its private character when employed in such a way as to be generally useful.59
Professor Scheiber has characterized Field as that “paragon of judicial activism on behalf of ‘laissez-faire’ doctrine, and chief engineer of the demolition work done upon the affectation doctrine of ‘Munn’,” and as the “champion of inviolable private property rights.”60 Field’s dissent in ‘Munn’ was very important because of its influence upon future decisions of the Court.61 Mr. Chief Justice Waite’s doctrine of business affected with a public interest, because it had not specified the dividing line between public and private use, was much broader in its scope than Field’s view of public use, which “was limited to those businesses which had incurred obligations to the public in turn for concessions made by the states.”62 This narrower view of business affected with a public interest was imposed by an increasingly conservative Supreme Court during the succeeding years.63
However, as the Fallbrook case illustrates, the Court did not relinquish their means for judicial review to accommodate changes they believed necessary. According to Willard Hurst the concept emerged
…that the basic issues of due process and equal protection were whether reasonable men could find that the facts showed a public interest in a given regulation, and that the regulation might be thought a reasonable means to effect the public interest64
In this respect Fallbrook was a forerunner of the more pragmatic approach the Court was to take in the twentieth-century, especially of its decision in Nebbia v. New York when it declared the state could intervene, through its police powers, wherever the public needed protection.65
The decision by the Supreme Court was greeted with joy throughout the arid portions of the country. Looking forward to the growth and prosperity of the port and city of San Diego, the Union declared the decision “the most important ruling, so far as California is concerned, ever made by that tribunal.”66 After decrying the delay and lack of progress due to litigation the Sun editorialized:
San Diego’s progress in intensive farming by irrigation has demonstrated what can be done. The big end of the business is yet to be learned, and this is the necessary co-operation and marketing of products, and the planning to make a succession of crops. When these districts have been irrigated, and when the business of intensive farming has become the science it will become with the transportation and all branches thoroughly developed, this section will become the most populous and prosperous of any in the entire United States. It will have a greater income per capita than any other section of the U.S. and with the desirable climate it will be the healthiest and happiest community in the U.S. That is our horoscope for San Diego.67
The San Francisco Chronicle felt the decision would stimulate the investment boom which set in when McKinley was elected and would put the credit of the state back to where it had been previous to Judge Ross’ decision. The Chronicle likened the decision to a defeat of monopoly which would be to fruit growers and farmers as the Standard Oil Trust decision was to small oil producers. The Sacramento Evening Bee felt the decision would be of untold benefit throughout the West in the reclamation of arid lands and that imperfections in the law could be remedied by legislation.68
The Portland Morning Oregonian noted that the Supreme Court had recognized the necessity of irrigation enterprise on a large scale if the arid lands of the West were to be reclaimed and that now the states of Oregon and Washington could proceed under similar laws passed in 1895.69
The Los Angeles Times noted mixed reaction to the decision. The Times reported that people in Utah received the decision with satisfaction as did settlers on land irrigated under the act. It was great news for those bondholders who had retained their bonds. Other bondholders had disposed of them to buyers, who “had been quietly buying them up for some time past.” The San Francisco Chronicle also reported that the decision had been due the previous March, and shortly afterwards William A. Thompson of Troy, New York, had appeared in San Francisco engaging in a quiet hunt for bonds for which he paid from $65 to $70 per $100 valuation. His presence becoming known after investing $103,000 in the bonds, “he departed for the East as quietly as he had come, and no more was heard of him.”70
The decision was not accepted gracefully by some. In anticipation of an adverse decision by the Court the opponents of the Wright Act had been taking steps for the formation of a defense organization. George H. Maxwell stated that branches of the organization existed in every irrigation district in the state. The organization, The California State League, published a paper called the Advocate in the interest of anti-irrigation district laws, and intended to proceed “to fight bondholders in every possible way before the courts, legislature, and people.”71
Ex-President Harrison also greeted the news of the decision with great satisfaction, especially since he now expected to receive the balance of his fee. Waymire viewed the decision with great relief since the long delay had been disastrous in suspending payments of taxes and interest on bonds and had stopped all construction work on irrigation projects. Waymire informed Harrison that the balance of his fee would be paid soon, but that Mr. Maxwell was threatening all sorts of opposition to the law, thereby having a disquieting effect among those who would have otherwise purchased bonds.72
The constitutionality of the Wright Act having been established, the way was clear for legislation designed to amend the deficiencies which had become apparent in the Wright Act. This led in 1897 to the enactment of a new irrigation district statute, known as the Bridgeford Act, designed to throw additional safeguards around irrigation law and to require county supervisors to exercise greater care in implementation of the law. One of the basic problems had been that the rate of growth in the physical construction of irrigation facilities had exceeded the rate at which governmental policies and public agencies had developed for control of water projects.73
There was yet one more act to be played out in the drama of the Fallbrook Irrigation District in the courts: this time in the Superior Court in San Diego to which the case of Abila v. Fallbrook Irrigation District had been remanded in 1895 by the state Supreme Court for retrial. On June 6, 1898, Judge Torrance held that 50 valid signatures were not on the petition for organization of the district, and therefore the district had never been legally organized, the proceedings for the organization of the alleged district were null and void, and the alleged district was not in fact an irrigation district organized under any act of the legislature. The district, as a result of this judgment, took steps towards deorganization.74
Fallbrook was not to give up on water for irrigation purposes however. In 1899 George Chaffey, developer of irrigation projects in the Riverside area, obtained an option for the sale of 2,000 shares of stock of the Fallbrook Water Company at $80 a share. Chaffey was trustee for a reservoir company to be organized by him.75
Fallbrook’s dreams were to become a reality in 1926 with the organization of the Fallbrook Public Utility District which, over the past 48 years has, while continuing the fight for water in the courts, provided water for the fruit and avocado trees in the community of Fallbrook, California.
1. T. S. Van Dyke, City and County of San Diego (San Diego: Leberthon and Taylor, 1888), p. 44.
2. This action commenced in 1951 in the U.S. District Court in San Diego, California. United States of America v. Fallbrook Public Utility District, 165 F. Supp. 806 (1958) and 341 F. 2d 48 (1965).
3. 164 U.S. 112 (1896).
4. Statutes of California, 1887, p. 29.
5. Van Dyke, op. cit., p. 57.
6. T.S. Malone, The California Irrigation Crisis of 1886: Origins of the Wright Act, unpublished dissertation MS, Stanford University, 1964, pp. 1-20, 228, 230; Glenn S. Dumke, The Boom of the Eighties in Southern California (San Marino: Huntington Library, 1944).
7. Gordon R. Miller, “Shaping California Water Law, 1781 to 1928,” Historical Society of Southern California Quarterly, LV (1973), pp. 9-42.
8. Malone, op. cit., passim. These conflicts are also discussed in Elwood Mead, Irrigation Institutions (New York: The Macmillan Company, 1903), passim.
9. 69 Cal 255 (1886); Malone, op, cit.
10. Statutes of California, 1887, p. 29.
11. Narratives of these early efforts to bring water to Fallbrook are contained in: Carl H. Heilbron, History of San Diego County (San Diego: San Diego Press Club, 1936), pp. 397-399; Lloyd Charles Fowler, A History of the Dams and Water Supply of Western San Diego County, unpublished M.S. thesis, University of California, Berkeley, 1952, p. 142; Ed Fletcher, Memoirs of Ed Fletcher (San Diego: Pioneer Printers, 1952).
12. The Rancho Santa Margarita, originally part of San Luis Rey Mission, was established through a grant of about 90,000 acres by Governor Juan Bautista Alvarado to Andres and Pio Pico in May, 1841. In 1844 the Picos acquired Las Flores Rancho from the local Indians. The Rancho eventually grew to a size of 226,000 acres (about 1/4 the size of Rhode Island). In 1864 the Picos transferred their ownership to their brother-in-law, Juan Forster, for $14,000. In the 1880’s the ranch was acquired by Richard O’Neill and James Flood (who attempted to corner the world wheat market in 1887-1888). O’Neill paid $250,000, and several months later sold his interest to Flood for $450,000. O’Neill continued to conduct the affairs of the ranch until his death, when he was succeeded by his son. In 1926 the Rancho brought suit to establish riparian rights along the Santa Margarita River. This litigation continued from October, 1926, until April, 1929, when a decision was rendered in favor of the Rancho. In 1938 the State Supreme Court remanded the case for retrial. It is estimated this litigation cost in excess of $1,000,000. In 1942 the Rancho sold 132,000 acres to the government for a Marine Corps Base, thus setting the stage for the continuing court battle in the 1950s with Fallbrook. R.W. Brackett, The History of San Diego County Ranchos (San Diego: Union Title Insurance Co., 1960), p. 33.
13. Petition of T.B. Palmer et. al., Fallbrook Irrigation District file 45-010-000, San Diego County Records Center. One of the signers of this petition was James T. van Rensalaer, the son-in-law of Mrs. Maria King Bradley.
14. Affidavit of publication. County Records Center.
15. San Diego County Board of Supervisors Minutes, Vol. 12, p. 218, 230-231; petition of Henry Wilbur et al., February 2, 1891, Fallbrook File, County Records Center. One of these ten, Mrs. C.A. Sheppard, appealed that as a woman without voting rights her interests had no other protection than by “action of your honorable body.” Letter of Mrs. Sheppard to Board of Supervisors, February 5, 1891.
16. San Diego County Board of Supervisors Minutes, Vol. 12, 253-269.
17. Affidavit of publication of notice of election and of posting of notice. Fallbrook File, County Records Center; and Board of Supervisors Minutes, 307.
18. Ibid., 352; San Diego Union, June 6, 1891.
19. San Diego Union, June 6 and September 27, 1891. Votes were usually from 6 to 15-1 in favor of district formation.
20. San Diego Union, June 1 and August 28, 1891.
21. Transcript of Record of the Supreme Court of the United States, October Term, 1895, No. 355, Fallbrook Irrigation District & Mathew Tomlins, as collector of said Fallbrook Irrigation District, Appellants v. Maria King Bradley & Charles Sidney Bradley, her husband. 164 U.S. 112.
22. The purpose of the Confirmation Act of March 16, 1889, as stated by the California Supreme Court in Modesto Irrigation District v. Tregea (88 Cal. 334), was to assure the validity of the proceedings of irrigation districts in order to establish confidence on the part of investors. “The Effect of a Decree of Confirmation under the California Irrigation District Law,” William B. Bosley, Yale LawJournal7:108 (1897-1898).
23. San Diego Union, February 26, March 29, May 15, and June 23, 1892. Blackburn v. Abile, No. 19299, Supreme Court of California (Los Angeles: William E. Ward, 1893).
24. San Diego Union, January 26, February 18, and September 7, 9, 1893. In the late 1880’s J.T. van Rensalaer, from New York state and a student at Oxford University, England, met Colonel and Mrs. Charles S. Bradley’s daughter, a student in Switzerland. Van Rensalaer was on his second trip around the world when he fell in love with Miss Bradley and married her. In 1889 the new Mrs. van Rensalaer gave birth to a daughter, Nan. The van Rensalaers decided to return to the United States. Since J.T. van Rensalaer had never been around Cape Horn, he took passage by ship for California and sent his wife and newborn baby to New York to travel overland by railroad to California. Mrs. Bradley accompanied her daughter and granddaughter to San Diego, where they registered at the Hotel del Coronado to await van Rensalaer’s arrival in 1890. Mrs. Bradley decided to remain in California and was followed shortly by her husband, two brothers, and a sister. Mrs. Bradley and her husband bought Hill House Ranch in Fallbrook in October, 1890. At this time there were fairly large English settlements in both Fallbrook and San Luis Rey. J.T. van Rensalaer joined the family and also bought a ranch at Fallbrook, where he engaged in growing olives, grapes, pigs, and at one time, ostriches. Hill House Ranch burned and the family papers were destroyed. (Interview with Mrs. Nan Couts, granddaughter of Mrs. Bradley and daughter of J.T. van Rensalaer.)
25. Fallbrook Irrigation District v. Bradley, Supreme Court Transcript, op. cit
26. The United States. District Court for the Southern District of California was reestablished on January 1, 1887. W. Rodman, History of the Bench and Bar of California, (Los Angeles: W.J. Porter, 1912). Erskine Mayo Ross served in the Confederate Army as a cadet at Virginia Military Institute from which he graduated in 1865. While there he helped to found Alpha Tau Omega fraternity on September 11, 1865. In 1868 he came to Los Angeles to study law with his uncle, Mr. Thom. Ross was admitted to the bar in 1869, and in 1879 was elected a justice of the Supreme Court of the State of California. He was reelected for a twelve year term in 1882. While sitting on the Supreme Court, Ross dissented from the majority decision in the landmark water rights case of Lux v. Haggin, (69 Cal. 255, 1886). In this dissent Ross affirmed that the adoption of the common law by the California legislature in 1850 “was not intended to and did not establish a rule of decision as to the right of appropriation of water for irrigation,” and that, if applied, the common law must be interpreted in the light of conditions prevailing in the country in which the application is made. (See R.H. Hess, “The California Irrigation Right,” 5 California Law Review 142, at 150.) Ross resigned from the Supreme Court in October, 1886, and reentered private practice with his partner, Stephen Mallory White, the anti-imperialist United States Senator from California in the 1890’s. Through the efforts of Mr. Justice Stephen Field, Ross was appointed as Federal District Judge by President Grover Cleveland on January 1, 1887. In 1895 Ross moved up to a seat on the Ninth Circuit Court. In addition to the Fallbrook case Ross was involved in several other landmark cases including: the Geary Act (57 Fed. Rep. 588) concerning Chinese exclusion, which led to a bitter quarrel with Attorney General Richard Olney; the upholding of the Stanford University endowment (67 Fed. 25 and 161 U.S. 412); and the Pullman strike of 1894 (62 Fed. Rep. 834). Ross was a horticulturist and owner of an estate which he named Rossmoyne on which were about 70 acres of citrus. Rossmoyne later became one of the suburbs of Glendale, California, which Ross helped to found. (An Illustrated History of Los Angeles County, California, I Chicago: The Lewis Publishing Company, 18891, p. 633; Dictionary ofAmerican Biography, ed. by Dumas Malone, I New York: Charles Scribner’s Sons, 19351, Vol. VIII, part 2, pp. 176-177; Early California Justice, ed. by Roy Vernon Sowers, [San Francisco: The Grabhorn Press, 19481, pp. 64-67.)
27. 106 Cal. 355 (1895). 39 Pac Rep 794 (1895), and 106 Cal. 365 (1895). 39 Pac Rep 793 (1895).
28. William P. Aiken, “The Irrigation Question in California,” Yale Law Journal 5:122 (1895-96); case file, Bradley v. Fallbrook Irrigation District, National Archives Record Center, Bell, California.
29. 68 Fed Rep 948, at 956, (1895).
30. See: Irrigation District v. Williams, 76 Cal. 360 (1888); Irrigation District v. DeLappe, 79 Cal. 351 (1889); Crall v. Irrigation District, 87 Cal. 140 (1890-01); Board of Directors v. Tregea, 88 Cal. 334 (1891); In re Madera Irrigation District, 92 Cal. 296 (1891-92); 68 Fed Rep 948; The United States Supreme Court’s general rule regarding state courts interpreting their own constitutions was set forth in Olcutt v. Supervisors, 16 Wall. 678 (1872) when the court declared that “The nature of taxation, what uses are public and what are private, and the extent of unrestricted legislative power, are matters which. . . no state court can conclusively determine.”
31. Thomas M. Cooley, A Treatise on the Constitutional Limitations which Rest upon the Legislative Power of the States of the American Union (5th edition: Boston, 1868). This noted justice of the Michigan Supreme Court gathered the scattered constitutional law of different states and published it along with his commentary on the law (especially on the issues of “due process of law” and “law of the land”). This monumental work formed the basis for possible restrictions of legislative will by state courts through its exposition of the concept of freedom of contract. Cooley was cited frequently as authority for judicial invalidation of state regulatory acts. See Arnold M. Paul, The Conservative Crisis and the Rule of Law: Attitudes of Bar and Bench, 1887-1895 (New York: Harper Torchbooks, 1969). 68 Fed Rep 948, 949, 956.
32. Ibid., at 966.
33. Ibid. The full text of Ross’ decision was carried in the Los Angeles Times, July 23, 1895.
34. San Francisco Chronicle, July 23, and 24, 1895.
35. Los Angeles Times, July 23, 1895; San Diego Union, July 23,1895; San Diego Evening Sun, July 23, 1895; Sacramento Evening Bee, July 25, 1895.
36. Case file, Bradley v. Fallbrook Irrigation District.
37. San Diego Evening Sun, September 23 and 25, 1895. San Diego Union, September 25, 1895. Choate was one of the foremost legal minds in the nation. He had served as president of the Harvard Alumni Association, the American Bar Association and the New York Constitutional Convention of 1894. He served as counsel in the anti-trust cases of Standard Oil Company, Trenton Potteries, and the “Tobacco Trust.” In addition to the California Irrigation Law cases, he argued the Leland Stanford case, the Neagle case (re the attempted assassination of Mr. Justice Field by Judge Terry of California), and the income tax cases before the Supreme Court. In 1896 he ran for the United States Senate in New York against Thomas C. Platt as a protest against boss rule. In 1899 Choate was appointed Ambassador at the Court of St. James, where he was instrumental in securing British agreement to Secretary of State John Hay’s Open Door policy in China and to abrogation of the Clayton-Bulwer Treaty of 1850 regarding sharing control of any isthmian canal with Great Britain. Dictionary of American Biography, Vol. II, part 2, pp. 83-86. Edward F. Treadwell, The Cattle King, (The Macmillan Company, 1931). Henry Miller, a large riparian land owner, had been in opposition to prior appropriators and irrigation districts for many years. According to Thomas Malone (supra footnote 6) Miller was responsible for the bribery of state legislators in the special legislative session of 1886. Miller was a partner of Lux of the landmark Lux v. Haggin case (supra p. 4).
38. James A. Waymire to Benjamin Harrison, September 21, 1895. Benjamin Harrison Papers. John Forrest Dillon forsook the practice of medicine at the age of 19 and started the self-study of law. He was admitted to the bar two years later in 1852. In 1862 he was elected, as a Republican, to the Supreme Court of the State of Iowa where he sat until appointed United States Circuit Judge for the 8th Judicial District by President U.S. Grant in 1869. In 1872 Dillon published a monumental treatise on Municipal Corporations to be followed in 1876 by The Law of Municipal Bonds. He was responsible for establishing municipal corporations as a separate field of the law. In 1879 Dillon left the bench for a professorship at Columbia College in New York City, from whence he resigned in 1882 to devote full time to the practice of law, primarily as a corporation lawyer. Dillon served as president of the American Bar Association in 1891-1892. Dictionary of American Biography, Vol. III, part 1, p. 311. Telegram, Harrison to Waymire, September 27, 1895. Waymire’s letter of September 21 and Harrison’s reply of September 27 were the opening salvos in a struggle between the two men over payment of the fee. The question of fee was to permeate their correspondence for the next year and a half. Harrison was not paid his retainer until shortly before the case was argued in January, 1896, and did not receive the remainder of his fee until after the decision was handed down in November, 1896. Waymire pleaded difficulties in paying Harrison’s retainer and fee as a result of other legal fees and printing expenses amounting to $8,000, the reluctance of bondholders to contribute due to the uncertainty of the outcome, eastern bondholders’ earlier contributions to employ Judge Dillon, and general economic hard times. Waymire felt that after a favorable decision the districts would be able to contribute.
39. Waymire to Harrison, October 10, 1895; Harrison to Frank Brown, October 1, 1895; Harrison to Hon. M. Winfield, October 1, 1895; John F. Dillon to Harrison, October 17, 1895; and San Diego Union, October 13, 1895.
40. California Irrigation District Cases, Legal files, Harrison Papers. Cf. Chief Justice Waite’s opinions in Munn v. Illinois, 94 U.S. 113 (1877), and Stone v. Farmers’ Loan and Trust Co., 116 U.S. 307, at 331 (1886). See text at footnote 107 infra.
41. “Constitutionality of California Statute Known as the Wright Act,” American Law Review 29:915 (1895). Cases cited were: Board of Directors v. Poso, 80 Cal. 334 (1889); People v. Selma, 98 Cal. 206 (1893); and Directors v. Abila, 39 Pac. Rep. 793 (1895). Ross in his decision cited Cummings v. Peters, 56 Cal. 593 (1880-81), in which the California Supreme Court held that several mine owners could not condemn a right of way for a ditch through which to convey water to work their mines because the use was a private one.
42. William P. Aiken, “The Irrigation Question in California,” Yale Law Journal 5:122 (1895-96).
43. This was especially true in Southern California, where the cost of putting water on the fields was much higher than in other parts of the state. The cost of irrigation works in the Fallbrook District would be $33.34 per acre ($400,000 bonds for 12,000 acres). This compared with the Sacramento area rate of $4.65, San Joaquin Valley rate of $7.41 per acre, and Southern California rate of $21.53 per acre. Figures are from the San Francisco Chronicle, November 17, 1896.
44. Harvard Law Review 9:284 (1895-96). 64 N. W. Rep. 343 (Neb., 1895). 114 U. S. 613 (1884).
45. John F. Dillon alleged that Maxwell authored the brief filed by John H. Boalt, amicus curiae in the Tregea case, on the unconstitutionality of the Wright ‘Act. Dillon to Harrison, January 13, 1896.
46. 164 U.S. 112, at 132. 111 Mass. 454, at 461 (1873).
47. 20 Wall. 655 (1874).
48. 164 U. S. 112, at 139.
49. People v. Bennett, 29 Michigan 451 (1874). Thomas Cooley was sitting on the Michigan Supreme Court Bench at this time. Wright v. Boston, 9 Cush. 233 (1852). Chief Justice Shaw wrote this opinion. In support of this proposition Choate cited: Mulligan v. Smith, 59 Cal. 230 (1881); Hagar v. Reclamation District, 111 U.S. 701 (1883); Wurts v. Hoagland, 114 U.S. 606 (1884).
50. See James Willard Hurst, Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison: The University of Wisconsin Press, 1956), p. 28 et passim. Hurst in his essay on “The Release of Energy” distinguishes “dynamic” from “static” property as “property put to creative new use rather than property content with what it is.” Hurst views nineteenth-century public policy as seeking a broad opportunity for the release of creative human energy while at the same time maintaining liberty (pp. 5-6). Therefore, there must exist a “reasonable public interest to justify imposing public force on individuals’ activities (p. 8).
51. 164 U.S. 112, at 154-155. Cases cited as authority on jurisdiction of Federal Courts include: Shelby v. Guy, 11 Wheat. 361 (1826) and Hagar v. Reclamation District, 111 U.S. 701, 704 (1883).
52. 94 U.S. 113 (1877).
53. Peter C. Magrath, “The Case of the Unscrupulous Warehouseman,” Quarrels That Have Shaped the Constitution, edited by John Garraty, (New York: Harper & Row, Publishers, Inc., 1962), pp. 109-127. For the origins and continue ity of the idea in U.S. law of “business affected with a public interest” see Harry N. Scheiber, “the Road to Munn: Eminent Domain and the Concept of Public Purpose in the State Courts,” Law in American History, edited by Donald Fleming and Bernard Bailyn, (Boston: Little, Brown and Company, 1971), pp. 327-402.
54. Stone v. Farmers’ Loan and Trust Co., 116 U.S. 307, at 331(1886).
55. Carl Brent Swisher, The Supreme Court in Modern Role, revised edition, (New York: New York University Press, 1965), p. 22. See also Swisher’s The Growth of Constitutional Power in the United States, (Chicago: The University of Chicago Press, 1946).
56. Davidson v. New Orleans, 96 U.S. 97 (1877).
57. 164 U.S. 112, at 164 (1896). 113 U.S. 1(1884). 164 U.S. 112, at 160-61.
58. 164 U.S. 112, at 163. The court said that this case did not differ essentially from Hagar v. Reclamation District. Also cited were Head v. Amoskeag Manufacturing Co., 113 U.S. 9, 22; Wurts v. Hoagland, 114 U.S. 606, 611; and Cooley on Taxation, 617, 2d ed.
59. The authoritative biography of Field is Carl Brent Swisher’s Stephen J. Field: Craftsman of the Law, (Washington, 1930). Robert Green McCloskey demonstrates the conservative influence of Field on the judiciary and constitutionalism in American Conservatism in the Age of Enterprise 1865-1910, (New York: Harper and Row, Publishers, 1964 originally published by the Harvard University Press in 1951). Sidney H. Asch in The Supreme Court and Its Great Justices, (New York: Arco Publishing Company, Inc., 1971), p. 79, mistakenly names Chief Justice Fuller as Field’s nephew and protegé who “followed the views of his uncle slavishly.” Justice David J. Brewer was Field’s nephew. Cf. Dictionary of American Biography, vol. III, part 2, p. 372; 16 Wallace 36 (1873); 94 U.S. 113 (1877).
60. Scheiber, op. cit., pp. 348-49.
61. Equal Justice Under theLaw: The Supreme Court in American Life, (Washington: The Foundation of the Federal Bar Association, 1965), p. 57.
62. Carl B. Swisher, American Constitutional Development, 2d ed., (Cambridge: Houghton Mifflin Co., 1954), p. 402. Field’s doctrine was expressed in his majority opinion in Georgia Railroad and Banking Co. v. Smith, 128 U.S. 174 (1888).
63. See Arnold M. Paul, Conservative Crisis and the Rule of Law: Attitudes of Bar and Bench, 1887-1895, (Cornell University Press, 1960). William E. Nelson attributes this rise of conservatism in the court to a formalism in judicial decision making emerging from the Civil War and the apparent social chaos at the end of the nineteenth century. See W.E. Nelson, “The Impact of the Antislavery Movement upon Styles of Judicial Reasoning in Nineteenth Century America,” Harvard Law Review, 87: 513, (1973).
64. James Willard Hurst, The Growth of American Law, (Boston: Little, Brown and Company, 1950), p. 32.
65. Nebbia v. New York, 291 U.S. 502 (1934).
66. San Diego Union, November 17, 1896.
67. San Diego Evening Sun, November 17, 1896.
68. San Francisco Chronicle, November 17 and 18,1896; Sacramento Evening Bee. November 16 and 17, 1896. 69. Portland Morning Oregonian, Editorial. November 18, 1896.
70. Los Angeles Times, November 17,1896; San Francisco Chronicle, November 17, 1896.
71. San Francisco Chronicle, November 18, 1896.
72. Harrison to Waymire, November 17, 1896; Waymire to Harrison. November 21, 1896.
73. S.T. Harding, “Background of California Water and Power Problems,” California Law Review 38:547.
74. San Diego Union. June 7, 1898.
75. L.M. Holt, “Irrigation Development,” The Rural Californian, Vol. XXII, Dec. 1899, no. 12.
Kay Russell, CDR, USN, graduated from Rice University, Houston, in 1956 with a B.A. in Economics. He was commissioned in the U.S. Navy in the same year, entered flight training at Pensacola in 1957, received his wings in 1958, and served with various squadrons in San Diego and in Mississippi until 1963 when he entered the Naval Postgraduate School, Monterey. He graduated in 1965 with an M.S. in Operations Research, was assigned to NAS Miramar, San Diego, and while flying F8E aircraft on his second combat cruise, he was shot down and captured by the North Vietnamese in 1967. He was released in the Spring of 1973 and entered graduate school at the University of California, San Diego in the Fall of 1973, where he is currently studying for his doctorate degree in United States diplomatic history with minor fields in United States economic history and modern Chinese history. Cdr. Russell’s military decorations include the Silver Star, Legion of Merit, Distinguished Flying Cross, Bronze Star (3 awards), Air Medal (11 awards), Purple Heart (2 awards), and Navy Commendation medal. Cdr. Russell’s article was an award-winning paper presented at the San Diego Historical Society’s 1974 Institute of History.