It is plain, ;therefore, that, in the plaintiff, in her .petition fotdivorce, made statements were not true, yet would defeat her recovery on this policy. It not is difficult to applytbe rule of public policy, call it an estoppel if youwill, to a ease where the principle of protecting the courts against "false swearing is called for by the facts developed; but, on the otner hand, when the proof tends to show an unfortunate misstn,tement of the facts, it becomes a matter of serious concemtoso'direct the jury that they shall not hold the party to the tnisstatement without a clear case which calls for such punishment. On the whole, I am satisfied with the verdict, and overrule the motion for a new trial.
(Oirc;'it Oourt, D. Oalifornia.
RECLAMATIOMDIST. NO. 108 V. RAGAR.
4. SAllIE - SAME - ... ·Bum -- CoNTRACT. '- Held, further, that the statute authorizing the assessment in question did not violate. the obligation of any contract between the United States and California, or the United States'and her patentees or grantees, or between the state ot California and purchasers from her, or grantees of the United States, or any contract found in the charter of the plaintiff.
6. 8AME-SAME-SAlIIE-SAME-GOLD Com.-Held, further, that· the authorizing the lissessments to be collected in gold coin did not impair the obligation of ahy contract. Lane 00. v Oregon, 7 Wall. 73. 6. 8Al\1E-SAME-8AlIE-u INCIDENTAL ExPENSES." -Held, further. that' attorney and counsel fees, in prosecuting suits for the recovery of such assessments, are" incidental expenses," within the meaning of the statute, to be paid out of the. funds raised, although such statute makes it the duty of the district attorneys to prosecute such actions.
'1. DISTRICTS FOR THE RECLAMATION OF SWAMP LANDS-STATE OF CALIFORNIA-POWER OF LEGISLATURE-SoURCE OF TiTLE TO LANDS.The power of the legislature of the state of California to authorize the formation of districts fpr the reclamation of swamp lands within the state at the expense of the lands so reclaimed, is not dependent. upon the source or channel through which the title to such lands came.
W. G. Belcher and I. S. Belcher, for defendant. :. SAWYER, C. J. The first point made against the validity of these proceedings, and elaborately argued, is disposed of by the supreme court of the United States in Davidson v. Nc.w OJ'leans, 96 U. S. 97, in which it is held that "whenev13b, -by the laws of a state or by state authority, a tax, assessment, servitude, or other burden is imposed upon property lic uses, whether it, be for the whole state or of some more limited portion of the community, and those law8 provide Jor a mode oj confirming or contesting the charge thus imposed in the O'I'dinary courts of justice, with such notice to the person, or such proceeding in regard to the property, as is appro]ftriatlf to the nature of the case,the judgment in such proceeding cannot be said to'deprive the owner of his property without due process of law, however obnoxious it,may be to other objections.;' -, · - It is not possible to ,hold that a. party has, without due process of law, been deprived' of his property, as regards the issues afleetingit, he 1>-y'
the laws of the state, a fair trial in a court of justice, 0,0cording to the modes of proceeding applicable to such a case." ,With reference to that case the court further observes: "Before the assessment could be collected, or become effectual, the statute required that the tableau of assessments should be filed in the proper district court of the state; that personal service of notice, with reasonable time to object, should be served on all owners. who were known and within reach of process, and an advertisement made as to those who were unknown or coulp. not be found. This was complied with; and the party complaining then appeared, and had a full and fair hearing in the court of the first instance, and afterwards in the supreme court. If this be not due process of law, then the words can have no definite meaning as used in the constitution." ld. 105. So, in this case, no property can be taken from the party except upon a judgment, after a full hearing in a suit to recover the amount of the assessment, in which the legality of all the proceedings is contested and adjudged. That is the very purpose of the present suit, and we are now engaged in ascertaining the validity or non-validity of the assessment in the regular course of due process of law. The assessment does not take the property; it is only taken in pursuance of the judgment after a full hearing. The case cited is conclusive on the point. The second point relied on by the defence is that the assessment was made, and the law authorized it to be made, without regard to any known or just principle of apportionment, or equality of burden or apportionment. I do' not understand it to be claimed that it was not made in accordance with the statutory provisibns in section 33 and other sections; but it is claimed that the statute itself is unconstitutional and void on the grounds indicated. I am Q.ot prepa,red to say that the statute does not require the assessment to be so made as to have some just relation to the benefits 'resulting from the improvement. The provision is that the commissioners "shall jointly view and assess, upon each and every acre to be reclaimed or benefited thereby, a
BEOLAM'ATION DIST. NO. 108 t1. lUGAR.
tax proportionate to the whole expense, and to the benefit which will result from such works," Section 83. This certainly seems to require an apportionment accordingio benefits. But suppose it does not require the apportionment to be strictly in all particulars in accordance with the benefits, then this point presents a question of constitutional law arising under the state constitution:; and the decisions of the supreme court. of the state upon such questions are conclusive upon this court when they do not trench upon allY of the rights protected by the oonstitution of the United States. Hawes v. Contra Costa Water Co. 5 Sawy. 287; Walker v.State Ha'f'bor Co. 17 Wall. 650; Bailey v. Magwire, 22 Wall. 230; South Ottawa v. Perkins, 94 U. S. 260; State R. Tax Cases, 92 U. S. 575; Fai1:field v. Gallatin Co. 100 U. S. 47. In Davidson v. New Orleans the supreme court says: "It is said that plaintiff's property had been previously assessed for the same purpose, and the assessment paid. If this be meant to d.'eny the right of the state to tax or assess property twice for the same purpose, we know of no provision in the federal constitution which forbids this, or which forbids unequal taxation by the states," Davidson v. New Orleans, 96 U. S. 106. The question, then, rests upon the state constitution as construed by the highest court of the state, and those decisions are against the defendant. This very point seems to me to be determined in Hager v. Sup'rs of Yolo Co., (arising under this same act,) 47 Cal. 234-5; BU1'nett v. Mayor of Sacramento, 12 Cal. 76; Emery v. S. F. Gas. Co. 28 Cal. 845; and subsequent cases affirming it settle this question 'in this state. The next point relates to impairing the obligation of a contract. I am unable to find any contract, either between the United States and California, or the United States and her patentees or grantees, or between the State of California and purchasers from her, or grantees of the United States, the obligation of which is impaired by the law authorizing the assessment in question. Nor do I think there is any contract found in the charter of the Reclamation District, the obligationol which could be impaired, within the meaning of the constitution, by reason of the fact that th&. assEjSsment was v.4,no.5-24
levied in violation of the provisions of section 7 of the bylaws, which provides that "the trustees shall allow no indebtedness to aocrue in excess of the amount of assessment levied.'" A similar question seems to have been raised in Davidson v. New Orleans, and overruled by the state court, which ruling was sustained by the supreme court of the United States. Says the latter court: "If the act under which the former assessment was made is relied on asa contract against further assessments for the same purpose, we con· cur with the supreme court of Louisiana in being unable to discover such a contract." 96 U. S. 106. In case the first assessment proves insufficient to pay the expenses of a reclamation: once inaugurated, the statute itself authorizes a second assessment to be made to make up the defioiency; and the supreme court, in one of the cases arising under this act already cittld, holds such seoond assessment under the act to be valid, notwithstanding the provision in the by.laws now under consideration. In my judgment, the authorizing the assessments to be collected in gold coin did not impair the obligation of any eon· tract.. The states' are authorized to require taxes and assess. ments to be collected in coin if deemed expedient. Lane Co. v. Oregon, 7 Wall. 73. Gold coin is lawful money of the country, and is legal tender in payment of debts. The statute itself makes no distinction.between it,and other lawful money also made a legal tender. I need not inquire whether Reclamation District No, 108 could successfully set up the statute of limitations to any portion of its indebtedness. The defendant is not in a position to raise the .question as a defence to this aotion. The statute might run against its patient creditors, while the Reclamation District is earnestly and vigorously pressing its suits to collect the asaessments in order to enable it to pay its debts. The expenses of collecting the assessments; among which are proper attorney and cotmsel fees in prosecuting suits for their recovery" are, in my judgment, proper "inoidental expenses," within the meaning of the statute, to be paid .out of the funds raised;. and the faot that the statute makes it the