The trial court made an order sustaining a demurrer to the plaintiff’s second amended complaint without leave to amend. Prom the judgment entered thereon the plaintiff has appealed.

The complaint contains two counts. In the first count, in effect, the plaintiff alleged that it is a Maryland corporation doing business in this state; that defendant district is a public corporation organized under the Statutes of 1897, page 254; that the personal defendants are directors of the district; that John Doe is the fictitious name of the manager of the district; that plaintiff is engaged in raising choice roses and nursery stock; that on November 1, 1930, plaintiff leased a piece of land, describing it, situated in Contra Costa County, California; that on December 1, 1930, it entered into possession; that said land is located within the boundaries of the defendant district but that plaintiff is not an inhabitant of said district. Continuing the plaintiff alleged:

In their briefs both counsel treat the case as though the complaint contained only one count. Although the complaint placed its charge against the district, its directors, and its managing agent, the briefs are confined to a consideration of the liability of the district, and are silent as to the other defendants. In what follows we will confine our discussion to the points made in the briefs and will discuss those points in the order as presented by the plaintiff.

Both counts sound in tort. (Cooley on Torts, p. 2.) The defendants assert, and the plaintiff does not contend to the contrary, that the district is not liable in an action pleading a tort. (Nissen v. Cordua Irr. Dist., 204 Cal. 542 [ 269 Pac. 171 ].) In its brief the plaintiff states:

As noted above, the plaintiff frankly concedes that if the defendant district was acting as an arm of the state, performing a governmental function, the plaintiff may not recover. But, it claims, that according to its allegations, “ . . . prior to the execution of said indenture of lease hereinabove referred to, plaintiff entered into an agreement with said defendants for the furnishing of water suitable for irrigating ...” the lands thereafter leased. In other words, the plaintiff’s claim is that the defendant district must at its peril first ascertain an applicant’s title to real estate before the district accepts a contract to serve such applicant or otherwise the district becomes liable as in its proprietary capacity. The plaintiff does not cite any authority sustaining its contention. We know of none. The district is concerned with furnishing water to its patrons and collecting for the service—it is in no manner interested in the title of any one of the patrons to the specific tract of land that is so served.

The plaintiff alleged: “That in entering into said agreement said defendants were not acting in any governmental, political or public capacity, but were exercising merely proprietary and private rights.” The defendants contend such allegations are conclusions of law. We think it is clear that they are. (21 Cal. Jur., p. 25; Bailes v. Keck, 200 Cal. 697, 703 [ 254 Pac. 573 ].)

Manifestly, supplying water to lands within the district was the primary function of the defendant district. No facts are alleged showing the district performed other functions. There is no allegation that the defendant sup plied or had facilities to supply anything but one kind of water. There is no allegation that it had any surplus waters. Nor is there any allegation that the water supplied to the plaintiff was different in kind from the water supplied to each and every other patron of the district. It is therefore patent that the complaint does not allege any fact or facts showing that in supplying the plaintiff it was acting in whole or in part in a proprietary capacity as distinguished from a governmental capacity.

It is conceded by both sides that the defendant district is a public corporation and as such an agency of the state. (Turlock Irr. Dist. v. White, 186 Cal. 183 [ 198 Pac. 1060 , 17 A. L. R. 72].) It follows that its officers are public officers. (Rose v. Superior Court of Imperial County, 80 Cal. App. 739 [ 252 Pac. 765 ].) It will be presumed, therefore, that the defendants have regularly performed their duties. (Code Civ. Proc., see. 1963, subd. 15.) That is, in the absence of allegations to the contrary, it will be presumed the district acted within its ordinary governmental capacity.

Moreover, when the district was being organized it became necessary to show that the water to be used was suitable for irrigation and that the lands to be irrigated therewith would be benefited by its use. (Stats. 1897, p. 254.) The order of the board of supervisors authorizing the formation of the district is, in this collateral attack, conclusive as to those facts. (Board of Directors v. Tregea, 88 Cal. 334, 354 [ 26 Pac. 237 ]; Miller & Lux Inc. v. Secara, 193 Cal. 755, 766 [ 277 Pac. 171 ].) Therefore we must assume, in the absence of other allegations, that the water furnished by the defendant, whether it contained some salt or otherwise, had been determined to be suitable water for irrigation and beneficial to the lands using it.

The judgment is affirmed.

Nourse, P. J., and Spence, J., concurred.

A petition by appellants to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on March 26, 1934, and the following opinion was then rendered thereon:

In denying said petition we withhold our approval of the last paragraph of the opinion of the Appellate Court as the statements therein are not necessary to said decision.