was incorporated. A codicil executed in February, 1907, reaffirmed this will in these particulars. There is not the slightest suggestion that either the prior will or the codicil thereto was induced or procured to be made by the influence of Gould, or that Mrs. Sawyer had any connection whatever with the execution of these instruments. Under these circumstances, the finding that the will of September, 1907, containing virtually the same provisions, was procured by undue influence, is so contrary to the inherent probabilities of the case that, in order to sustain it, the respondent should be able to point either to direct proof of the exercise of such influence, or to evidence of circumstances pointing strongly and persuasively in that direction. But, as we have already said, the record contains no such proof or evidence.

In view of our conclusions on the main question discussed by us, the appellant's further assignments of error do not require consideration.

The order denying a new trial is reversed.

Angellotti, J., and Shaw, J., concurred.

Hearing in Bank denied.

[S. F. No. 5932. In Bank.-January 8, 1912.]

IMPERIAL WATER COMPANY, NO. 1, Petitioner, v. BOARD OF SUPERVISORS OF IMPERIAL COUNTY et al., Respondents.

IRRIGATION DISTRICT-ORGANIZATION UNDER ACT OF MARCH 31, 1897REVIEW ON CERTIORARI.-A board of supervisors, in taking the various steps required of it for the organization of an irrigation district under the act of March 31, 1897, and the amendatory act of 1911, (Stats. 1897, p. 254; Stats. 1911, p. 509), exercises judicial functions, and its action therein is subject to review on certiorari. ID.-CREATION OF DISTRICT BY LOCAL BOARD-PROCEEDING IS JUDICIAL.— Where the legislature delegates the power to create such a district to a local board, and in a proceeding before such board a public notice is required to be given, and a hearing of objections or protests to the contemplated action is provided for, and the order to be made thereon

is one which affects the property or rights of the citizen, the proeeeding is usually held to be judicial and subject to be reviewed on certiorari.

ID. ADEQUATE REMEDY AT LAW-ACTION TO DETERMINE VALIDITY OF BONDS OR ASSESSMENT.-The action authorized by sections 68 to 72 of the act, to be brought by the board of directors of the district, or by any person whose property is assessable by the district, to determine the validity of any district bonds or assessment, does not afford such a plain, speedy, and adequate remedy to determine the question of the validity of the organization of the district, as to prevent the remedy by the writ of certiorari to review the proceedings for its organization. ID.-UNCONSTITUTIONALITY OF INDEPENDENT SECTION OF ACT DOES NOT INVALIDATE ACT.-The unconstitutionality of section 4 of the act, purporting to provide for a remedy by appeal to the superior court of the county from the order of the board of supervisors calling an election to determine whether the district shall be organized, does not render the entire act void. That section and the other parts of the act are easily separable, and the provision for an appeal is not essential to the validity of such other parts.

ID.-LEGISLATIVE CONSTRUCTION OF ACT.-That the legislature did not consider section 4 of the act so vital to the scheme that the law would not have been enacted without it is shown by the fact, that after that section had been held unconstitutional in 1909, the legis lature has passed acts either amending or supplementing it. ID.-NOTICE OF PRESENTATION OF PETITION TO SUPERVISORS-Signatures OF PETITIONERS.-Under section 2 of that act, it is not necessary to the jurisdiction of the board of supervisors, that the notice of the time of the presentation of the petition for the organization of the proposed district should be signed by all the petitioners therefor. If any signatures thereto are necessary, it is sufficient if the notice is signed by some of the petitioners in behalf of all. ID.-STATEMENT OF WHEN PETITION WOULD BE PRESENTED MEETING OF BOARD.-Such notice need not specifically state that the petition will be presented at a "meeting" of the board of supervisors. A statement that it would be presented to the board at a particular hour of a specified day, which was a day for a regular meeting of the board sufficiently complies with the statutory requirement that the notice shall state "the time of the meeting" at which it will be presented.

ID.-NOTICE SIGNED BY SOME OF PETITIONERS FOR ALL.-Under the statute, a notice authorized by the petitioners and purporting to be signed by some of them for all, and regularly published as required by the act, is valid, whether the purported signatures thereto were actually written by the petitioners or some other person by their authority.

ID.-DUE PROCESS OF LAW-CONSTITUTIONAL LAW-FORM OF NOTICE.It was not essential to due process of law that such notice should be signed by the petitioners, and the fact that section 2 of the act dispenses with such requirement does not render the act unconstitutional. All that is required, in order to constitute due process of law, is that such a notice shall be given as, under the circumstances, would have a reasonable tendency to apprise the parties interested of the nature of the proceeding and the time and place of the hearing. ID.-PROOF OF NOTICE-AFFIDAVIT OF PUBLISHER.-The affidavit of the publisher of the newspaper in which publication of the notice and petition was made was competent and sufficient evidence thereof.

ID. GENUINENESS OF SIGNATURES EVIDENCE NOT MADE PART OF RETURN ON CERTIORARI.-Upon a review on certiorari, where there is no charge that the signatures to the petition are not genuine, the mere fact that the evidence upon which the board found their authenticity is not made a part of the return and was not incorporated into the record in detail, is a wholly insufficient basis upon which to declare that the proceedings are invalid.

ID.-OWNERS OF POSSESSORY RIGHTS TO LAND MAY BE PETITIONERS.-The legislature being the sole judge of the propriety of the formation of such districts, it may, after proper notice and hearing, authorize the initiatory proposal to be made by such persons as it sees fit, and may make the owners of mere possessory rights to land by entry under the United States or this state eligible as petitioners.

ID. ORDER ESTABLISHING BOUNDARIES OF DISTRICT INCLUSION OF TRACTS NOT DESCRIBED IN PETITION.-The fact that the order of the board providing for the organization of the district included certain tracts of land of relative insignificant proportions that were not within the boundaries described in the petition, will not have the effect to invalidate the proceedings as to a person in no way interested in such lands, and whose own lands were properly included in such boundaries.

ID. CONFLICTING EVIDENCE AS TO JURISDICTIONAL FACTS-REVIEW ON CERTIORARI. In certiorari, the reviewing court will not consider the weight of conflicting evidence as to jurisdictional facts given before the tribunal whose action is sought to be reviewed, and will not require any further return or continue the proceeding to allow any further presentation thereof.

APPLICATION for a Writ to review the acts of the Board of Supervisors of Imperial County in the organization of an irrigation district.

The facts are stated in the opinion of the court.

R. D. McPherrin, and Hunsaker & Britt, for Petitioner..

Phil D. Swing, District Attorney, Conklin & Brown, and John M. Eshleman, for Respondents.

SHAW, J.—A writ was issued by this court to review the acts of the board of supervisors of Imperial County in the organization of an irrigation district under the act of March 31, 1897, and the amendatory act of 1911. (Stats. 1897, p. 254; Stats. 1911, p. 509.) A return having been filed, the cause was argued and submitted upon a demurrer to the complaint, a motion to quash the writ and the return.

1. The defendants claim that the writ of review will not lie, for the alleged reason that the board of supervisors, in organizing the district under the statute, was not exercising judicial functions. Such writ cannot be issued to review the proceedings of the board except when it is exercising judicial functions and has exceeded its jurisdiction in that respect, and there is no appeal, or, in the judgment of the court, any other plain, speedy, and adequate remedy. (Code Civ. Proc., sec. 1068.) The argument is that the act of creating such a public corporation or taxing district is a legislative act and not a judicial proceeding.

It is not disputed that the mere creation of a district of this character is a legislative act. (See Glide v. Superior Court, 147 Cal. 21, [81 Pac. 225]; In re Madera Irr. Dist., 92 Cal. 308, [27 Am. St. Rep. 106, 14 L. R. A. 755, 28 Pac. 272, 675]; Potter v. Santa Barbara Co., 160 Cal. 349, [116 Pac. 1101].) The legislature may either create such corporations itself by a statute passed without any formal notice or hearing, or it may delegate the power to some local board. (People v. Sacramento Drainage Dist., 155 Cal. 386, [103 Pac. 207]; Fallbrook Irr. Dist. v. Bradley, 164 U. S. 174, [41 L. Ed. 369, 17 Sup. Ct. 56].) It does not follow, however, that where the legislature delegates such power to a local board and provides that it can. be exercised only upon certain conditions and upon the ascertainment of certain facts by such board, after a notice and hearing to parties interested, that the proceeding thus authorized is not of a judicial character. Although such boards do not have the character of an ordinary court of law or equity, they frequently are required to exercise judicial functions in the course of the duties enjoined upon them. In Robinson v. Board, 16 Cal. 208, the court says: "It is sufficient if they are

invested by the legislature with power to decide on the property or rights of the citizen. In making their decision they act judicially whatever may be their public character." There are many decisions to the same effect. (People v. Supervisors, 8 Cal. 61; People v. Supervisors, 10 Cal. 344; Eldorado v. Elstner, 18 Cal. 149; Murray v. Board, 23 Cal. 494; Miller v. Board, 25 Cal. 97; Keys v. Marin Co., 42 Cal. 254; Smith v. Strother, 68 Cal. 196, [8 Pac. 852]; Wulzen v. Board, 101 Cal. 24, [40 Am. St. Rep. 17, 35 Pac. 353].) Where in a proceeding before such a board a public notice is required to be given, and a hearing of objections or protests to the contemplated action is provided for, and the order to be made thereon is one which affects the property or rights of the citizen, the proceeding is usually held to be judicial and subject to be reviewed on certiorari. It is sufficient to come within the purview of the writ if such proceedings are of a judicial nature and are exercised by a quasi judicial body. (6 Cyc., 752; 4 Ency. of Plead. & Prac., p. 74.)

The proceeding provided for by the act comes clearly within these definitions. Section 1 designates the persons who may initiate the proceeding before the board. (Stats. 1911, p.

509.) Section 2 provides that such proceeding shall be begun by a petition presented to the board, signed by the required number of persons, representing the majority in value of the land, and setting forth the boundaries of the proposed district and the source of the water supply. (Stats. 1911, p. 509.) The petition, together with a notice of the time of the meeting at which it will be presented to the board, must then be published for two weeks. At that time the supervisors must hear the same. They may change the boundaries as deemed advisable by including or excluding territory therefrom, but they must not exclude land irrigable from the proposed source, or include land which will not be benefited by irrigation therefrom. Any person whose lands may be irrigated from the proposed source may, in the discretion of the board, have such lands included within the district. The board must hear all relevant and competent evidence offered, and thereupon determine whether or not the petition is signed by a majority in number of the holders of lands within the proposed district susceptible of irrigation from the same source or system, and whether or not the lands held by such signers represent a ma