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
BECLAMATIONDIST. RO. 108
duty of district attomeys to prosecute such actions, does not
prevent the employment of other counsel, in the sound dis. cretion of the officers of the district, in proper ca ses, to aid in the litigation. Smith v. Sacramento, 13 Cal. 532; Hornblower v. Duden, 35 Cal. 668-9. This identical point is said, in .com. plainant's brief, and not denied by defendant, to have beeu decided by the supreme court of Califomia, December 29, 1879, in three cases: Reclamation Dist. No. lOB v. Hickock, Same v. Hou'ell, and Same v. Howell et ale If so, the determination is authoritative. The supreme court of California have settled the question that, under the'.constitution,of California, the legislature has power to.authorize the formation of districts for the reclamation of swamp lands Within the state, at expense of the lands so reclaimed. Hagar v. SUp''1'S Yolo Co. 47 Cal. 223; People v. Hagar, 52 Cal. 171; People v. Reclamation Dist. No. 108; ,53 Cal. 348; Dean v. Davis, 51 Cal. 4:07.' This being established, I ha.ve no doubt,of its authority to include swamp lands which are derived under Spanish grants" or under any other patentlrom the United States, as well as those derived through the state under the Arkansas act granting the swamp lands to the several states in which they are, situated. The power to reclaim at the expense of the lands no more depends upon the source from or channel through which the title came, than the power to authorize the improvement of the streets of a city at the expense of the adjoining property. There is no contract that lands patented by the United States upon grants, to purchasers, or derived from Mexican grants and protected by the treaty, shall be exempt from the burdens imposed upon other property under the police or the taxing powers of the state. The state does not derive its power to reclaim swamp lands from the Arkansas act; nor does it contract by that act not to reclaim other swamp lands, or to limit the expense of reclaiming to the proceeds of sales of those particular lands. Its power to reclaim is wholly independent of the provisions of that act. By accepting the grant it may have imposed upon itself the duty to reclaim the lands granted, but it thereby in no way limited itfl power
derived' from other 8011'rCesto reolaim 'those 'or any other landS., The several already cited, arising under the act in question, also decide that the legislature has power to include lands held under Mexican grants in reclamation districts. The point that, conceding the power of the legislature to include the lands of Hagar, held by him under a Mexican grant, in a district formed for the purpose of reclamation. still it did not in fact so include them by the act of 1868, or the provisions of the political code.'in question, is distinctly decided against the defendant by the supreme court of the state in Hagar v. Sup'rs Yolo 00. 47 Oal. 223; People v. Hagar, 52 Oa1.·172. This being a construction of a statute of Oalifornia by the highest court of the state,.is conclusive upon this court. The last point, that· the assessment is void because not made according to any rule6f benefits" etc.., ,has alteady been considered under another head, and it is disp.osed of by the authorities already cited. .See, particularly, Hagar v. Sup'r8 Yolo Co. 47 Oa1.233-4; People v. Hagar, 52 Cal. 183; Davidsonv.New Orleans, 6 Otto, 107. Nocotherlpoint appears tp me to require special notice. All the questions .presented in this <lase, upon which there ever could have been grounds for reasonable doubt, arei' in judgment, authoritativ.ely settled, either' by decisions 'of the 'United States., supreme court or the supreme court of the state of ',There must be a decree for' complainant, in pursuance of the prayer of the bill, and it is so ordered. Similar, decree in the three other cases.
BUBT0N:t1., 'J/()WN OF, EO,BHEONONG.
v. THE TOWN
(Oircuie (Jowre, W. D. WiBconsi1).
hi the remedy which practically cuts off a portion of the cause of actiO:!J" or renders the con-, tract of less available worth, is as much .within the constitutional pro. hibition as a law Which strikes directly at contra'ct itself. EdwOIrds v. KeivrBZly, 96 U. S. -