The opinion
BEATTY, C. J., concurring.
I concur in the judgment, but I dissent from so much of the opinion as rests upon the proposition decided in
People v. District No. 551, 117
Cal. 114, that swamp land districts formed under the act of 1861 ceased to exist after the passage of the Green act in 1868. I think all districts which had been “formed” in the sense of section 32 of the latter act (Stats. 1867-68, p. 515) were by that section kept in existence, and that for the purposes of such districts, until reorganized under the n'ew law, the original act of 1861 and the amendatory act of 1866 remained in force notwithstanding their repeal for all other purposes. If, therefore, district No. 8 was ever “formed,” within the meaning of the Green act, I should be forced to conclude that it was still in existence when the proceedings were had for the organization of the defendant, and that those proceedings under section 3446 of the Political Code were ineffectual.
But the superior court has found, upon evidence which I think sustains the finding, that district No. 8 never had a legal existence. It seems to have acquired the designation of swamp land district No. 8 solely by reason of the petition for its formation and the order of the commissioners for a preliminary survey. From that time forward it was called swamp land district. No. 8 in reports of engineers and state officers and acts of the legislature. But it clearly was not constituted a swamp land district by a mere order of the commissioners for a preliminary survey, the only result of which might be to demonstrate the fact that no reclamation could be effected. And,
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yet, for the purpose of that order, and for the purpose of designating the fund out of which the expenses of the preliminary survey were to be paid, it might be, as in fact it was, conveniently designated as swamp land district Bo. 8. The result of the preliminary survey, made under the order of the commissioners, was to show the reclamation could not be effected with the funds available, and no plan of reclamation seems to have be'en adopted—no contract was let, and all proceedings ended with the payment of the expenses of the survey. This was not, in my opinion, a formation of the district in the sense of section 32 of the act of 1868. It was not within the reason of that proviso. Such, indeed, seems to have b'een the view of the matter upon which the board of supervisors, and all others concerned, have acted during a period of nearly forty years prior to the proceedings for the formation of the defendant.
Upon the grounds thus briefly indicated I hold that swamp land district Bo. 8 was no obstacle to the formation of defendant, and as to the other districts I concur in the principal opinion.