Opinion
March 14, 1949.
1. Drainage districts administrative entities and continue as such for carrying out the purposes of the system so established.
The purpose of drainage statutes is to reclaim overflowed, non-productive or unsanitary lands and a drainage district is an administrative entity which shall continue to exist as a body corporate for the purpose of preserving the established system of drainage and to do such other acts as may be found advantageous to the district.
2. Drainage districts — in organization proportionate benefits paramount — but once organized it is the duty of its members to maintain it.
In organizing and financing a drainage district proportionate benefits are paramount, and actual resultant benefits are the justification for and the limitation of the assessments. But as the district is the creature of its members in which they bind themselves as a common cause it becomes their duty to maintain the polical entity thus created by them.
3. Drainage districts — assessments for repairs — all members subject to.
When the lower area of the canal of the drainage district has become obstructed by debris, drift and silt, for the removal of which a further assessment is required, an additional assessment may be made by the district against all property in the district, including the property in the upper area thereof, notwithstanding the upper lands by reason of their location might not receive any immediate benefits from the additional assessment.
Headnotes as approved by Alexander, J.
APPEAL from the chancery court of Marshall County, HERBERT HOLMES, Chancellor.
Lester G. Fant, Jr., for appellant.
This is an appeal from a decree of the chancery court of Marshall County, Mississippi, overruling appellant's objections to an assessment of additional benefits made to his lands by appellee.
Appellant contends that the decree of the court confirming this assessment and overruling his objections is erroneous for the following reasons:
(1) The statute permitting the assessment of additional benefits by a drainage district requires, and has been construed by this court to require, that such an assessment be based upon benefits accruing to the land assessed.
(2) The undisputed proof in the court below shows that the assessment of additional benefits objected to was not based upon any benefits accruing to the land assessed. On the contrary, it is admitted by the commissioners to be an arbitrary increase in the original assessment, an increase of one hundred percent, made without any regard for or relation to the physical condition of the district at the time, or the benefits actually to accrue to the land assessed.
(3) The benefits additionally assessed were shown to be grossly excessive, both as to appellant's land and as to the district as a whole.
Point 1. The assessment of additional benefits by a drainage district is required under the law of this State to be based on benefits accruing to the land so assessed.
The statute upon which the district relies for authority to levy additional assessments against appellant's land is Section 4689 Miss. Code 1942, Annot., Chapter 195 of the Laws of 1912 as amended by Chapter 269 of the Laws of 1914.
The applicable part of this statute reads as follows: "The assessment roll so prepared and filed by the commissioners, when approved by the chancery court or chancellor in vacation, shall stand as a final assessment of benefits upon the lands of the said district, and no new assessment roll shall be required unless in the opinion of the commissioners it becomes necessary to raise the assessment of benefits to such lands because of additional benefits to the lands other than those assessed, or because it becomes absolutely necessary in order to raise funds to preserve and maintain the improvements of the district."
In this case the appellee relies upon the last part of the quoted provision, "or because it becomes absolutely necessary in order to raise funds to preserve and maintain the improvements of the district." The theory of the appellee, which apparently was accepted by the lower court, is that the assessment of additional benefits under this latter disjunctive clause of the statute does not require a finding of any additional benefits actually to be conferred upon the land, but requires merely a finding of necessity of the improvement.
A mere reading of the statute will disclose that such is not its purpose. It provides in the first of the two clauses for the assessment of additional benefits if "it becomes necessary to raise the assessment of benefits to such lands because of additional benefits to the lands other than these assessed". (Without in that clause having any regard for or concern with additional construction or excavation.) It would, no doubt, be conceded by the appellee that under that first clause additional benefits would have to be found and proved. The statute provides under the second of the disjunctive clauses for the assessment of additional benefits "because it becomes absolutely necessary in order to raise funds to preserve and maintain the improvements of the district." While that clause differs from the former one in the reason for the additional assessment, it does not provide any different manner of making the assessment of additional benefits. This court has held in several cases, that under either of the two clauses a subsequent assessment of benefits must be based on benefits accruing. And the statute as written and so construed by this court has been twice re-enacted by the legislature. White, et al. v. Lake Cormorant Drainage District, 130 Miss. 351, 94 So. 235, (1922); Gillis, et al. v. Indian Creek Drainage District, 155 Miss. 160, 124 So. 262, (1929); Gillis, et al. v. Indian Creek Drainage District, 160 Miss. 528, 134 So. 173, (1931); Anderson v. McKee, 182 Miss. 156, 179 So. 858; Anderson v. Robins, 161 Miss. 604, 137 So. 476.
In White v. Lake Cormorant Drainage District, supra, the court held that where on the hearing of a new assessment of benefits it was shown to the court that the lands of certain land owners in the district will not receive any additional benefit on account of such new assessments, and the decree of the court so finds, then the releasing by the court of such lands from such new assessment is not error. In this case the proceeds of the bonds sold to pay the expense of the work planned under the first assessment of benefits were exhausted before the work was completed. In order to complete the work the commissioners made a new assessment of benefits, making a horizontal raise of 50% of the first assessment of the land of the district. The petition to assess these additional benefits alleged that it was necessary to complete the work planned in order to preserve and maintain the improvements already made. Certain of the land owners objected, and upon the hearing a consent decree was entered which recited that the chancellor having heard proof diminished the assessments of certain of the objectors, diminished them so that they stood exactly as originally assessed; in other words removed any additional assessment of benefits from such lands. The decree confirmed and approved the assessment of benefits against the other lands. This decree was strenuously attacked, but on appeal the court affirmed it, saying ( 130 Miss. 371): "The consent feature of this decree with reference to the parties whose lands were released from the new assessment can be entirely eliminated and still there is left a decree reciting that, after hearing the evidence, the court found there was merit in the protest of these parties and it was just and equitable that their assessments should be reduced to the amounts at which they stood in the first assessment." Manifestly, unless there were a relation between the assessment of additional benefits and benefits actually to be conferred upon the land, the decree of the lower court in the cited case relieving certain lands from any additional assessments could not be sustained.
This construction of the latter clause of the statute is more clearly shown in the two decisions of Gillis v. Indian Creek Drainage District (supra).
The facts of these decided cases are identical with the facts of the case at bar, in that the occasion for the assessment of additional benefits was the filling and obstruction of the drainage canal with silt and sand. The sole basis for the assessment of additional benefits in these decided cases was the necessity to maintain and repair the drainage canal originally laid out. Upon the first appeal of this Gillis case ( 155 Miss. 160, 124 So. 262), the record disclosed that the commissioners had conceived, and the lower court had held, that the commissioners had the power in making the additional assessments to pick out especially designated lands lying in municipalities and railroad tracts and a few other bodies of land and make the necessary additional assessment on those lands and not "against other property receiving benefits". In line with this view, the commissioners of the Indian Creek Drainage District had selected arbitrarily certain tracts of land and levied the additional assessments against those tracts, and not against other tracts in the district. In holding that this procedure was erroneous, the court used the following language ( 155 Miss. 169), which is enlightening of the case at bar: "And it is apparently under this branch of the statute that the court below acted, but the commissioners conceived, and the court below held, that they had the power to pick out specially designated lands lying in municipalities, and railroad tracts, and a few other bodies of land and make the necessary additional assessment and not against other property receiving benefits. It is true that after developments show frequently mistakes in original estimations, and we think that when the second assessment becomes necessary, under the latter clause of the statute, the board has power to redetermine the benefits to be derived from the new work and to reapportion the amounts on the property owners of the district, but it does not have the right, under this section anywhere, to pick out certain particular tracts and assess them for the benefits accruing to it, and leave unassessed benefits to other tracts within the district."
In other words, on this appeal, the court held that the commissioners of a drainage district did not have power arbitrarily to select tracts of land which they would assess with additional benefits; that all the land of the district receiving additional benefits, must be assessed with the additional benefits so received. This decision clearly shows that it was not contemplated by the latter clause of the statute, as the court specifically says, that the assessment of additional benefits should be based wholly upon the assessment of original benefits.
As a result of this decision the cause was reversed and remanded.
Upon the second appeal of this case ( 160 Miss. 528, 134 So. 173), the record disclosed that after the remand the commissioners had taken action which purported to comply with the opinion of the court in previous decisions. All the lands of the district were placed within the binders of one roll of additional assessments and oposite each tract of farm land, under the heading of "additional benefits assessed by commissioners", there was entered the word "none". If this action had been a valid assessment of benefits, it would seem to comply with the opinion of the court on the previous appeal. But the opinion of the court upon the second appeal states: "But it is admitted throughout the record, and the chancellor so found, that no assessment was made against these lands, not because they would receive no benefits from the proposed maintenance, but because in the judgment of the commissioners they were assessed out of proportion to lands in the municipalities in the original assessment, and that the assessment was placed only on the lands located in the municipalities in an effort to correct, equalize, and adjust the inequalities in the original assessment." The court held that this was not permissible.
This decision and particularly the language of the opinion quoted above show that if the commissioners had in fact found that no benefits would be received by the farm lands in question as a result of the proposed improvements, then the roll which they prepared would have been proper. The decision of the court in the language quoted is based entirely upon the fact as found and admitted that the lands which were not assessed with additional benefits were omitted from such assessment not, as the court specifically says, because they would receive no additional benefits, but because the commissioners in doing so were attempting to equalize the original assessment.
In the first decision of the cited case the court held that all the lands in the district receiving additional benefits must be assessed with additional benefits. In the second decision the court held that where lands were omitted, even though shown on the roll from the additional assessment, where such lands would in fact receive additional benefits from the proposed work was error.
These two decisions, the appellant submits, clearly demonstrate the construction which this court placed upon the latter clause of the statute relied upon by the appellee. That construction is not that all the lands in the district, without regard to the accrual of additional benefits, must be assessed; but, on the contrary, that the assessment of additional benefits must follow the finding of benefits to be conferred upon the land by the work proposed.
In two other decisions the Supreme Court has held that the assessment of additional benefits must be based upon additional benefits accruing to the land assessed. Anderson v. Robins, 161 Miss. 604, 137 So. 476, supra; Anderson v. McKee, 182 Miss. 156, 179 So. 858, supra.
In each of these cases, a creditor, or holder of bonds of the district sought, as if in mandamus, to compel the assessment of additional benefits. In Anderson v. Robins, the proceeding was in chancery, but the court discussed the merits of the case as if it had been in mandamus. In each case it was held that mandamus would lie to compel the commissioners to meet and consider the matter, but would not lie to compel an assessment of additional benefits for the reason that such an assessment would require a finding of fact by the commissioners.
In Anderson v. McKee, the plaintiff was the holder of certain bonds of the district. These bonds were valid obligations, having been validated by an act of the legislature. The question, whether the act of the legislature made the bonds actually valid obligations was decided by the court in Anderson v. McKee, in language which is pertinent. The court said: "It was held in the case of Anderson v. Robins, 161 Miss. 604, 137 So. 476, 478, that `the legislature had full power, under the Constitution, to authorize drainage districts to contract debts prior to the assessment of benefits from the proposed drainage scheme to the land of the district, provided liability therefor is not imposed on the land, or its owners, in excess of the benefits accruing to the land.' It follows from this that the legislature could authorize drainage districts to contract debts subsequent to the assessment of benefits, provided liability therefore is not imposed on the land or its owners, in excess of the benefits accruing to the land." (Italics are the court's)
The court held that the effect of the curative statutes was to render the bonds legal obligations of the district, but that the statutes did not create a lien on the land.
The bonds in question were issued as the result of a resolution showing that the original bond issue was insufficient to pay for the improvements contemplated, or to complete the work begun. And the court said that it would assume that the proceeds of the second bond issue were used in the work of completing the drainage system of the district as originally organized.
Now, if the second bond issue were necessary, as that paragraph indicates for the completion of the system contemplated by the organization of the district, it would seem clearly to fall within the provision of the statute authorizing the assessment of additional benefits. And if the assessment of additional benefits were merely ministerial act, then it would seem clear that the holder of a valid bond would have a right in mandamus to compel the assessment of such benefit. And this under the latter clause of the statute. The court said, however: "When the drainage commissioners and the board of supervisors found in the year 1917 that the original bond issue of $14,000, plus the ten per cent, unforseen contingencies, was insufficient to complete the system of drainage contemplated in the district, and that the additional sum of $2,500 was needed for that purpose, a new assessment of benefits could have been made against the lands therein, under the authority of Chapter 195, Laws of 1912, and amendments thereto, as construed in the case of White et al v. Lake Cormorant Drainage District, 130 Miss. 351, 94 So. 235, provided the commissioners were of the opinion that the lands would receive additional benefits to those found and assessed in the first assessment thereof, and the board could have levied a tax on such additional assessment for the purpose of paying the bonds in question, but this was not done. Also, the commissioners could have been compelled by mandamus to meet and consider the question of whether the levy of additional benefits was justified, when it was found that the indebtedness incurred by the issuance of such additional bonds of $2,500 exceeded the benefits theretofore assessed. However, their judgment and discretion as to whether benefits had accrued or would accrue additional to those already assessed could not be controlled by the issuance of such a writ, as was held in the case of Anderson v. Robins, supra."
It is submitted that this case is a clear authority. Certainly if the work had not been completed the occasion for the assessment of additional benefits could fall properly under the clause ascribing the necessity as a basis for such assessment. Yet the court held that the benefits could not be assessed unless the commissioners found that benefits had accrued or would accrue additional to those already assessed. This finding by the commissioners, it is submitted, involves a matter of decision far beyond the mere arbitrary computation of figures, so as to increase the benefits already assessed by taking the original assessment roll and increasing it any given fraction which the commissioners may find adequate.
The broad proposition that the assessment of benefits must be based upon benefits actually accruing to the land whether such benefits be original benefits or additional benefits, we submit can scarcely be disputed.
Point II. The construction of the statute in question as requiring the assessment of additional benefits to be based upon benefits accruing to the land has been adopted by the legislature.
The statute in question was last amended in 1914. Chap. 269, Laws of Miss., 1914. All the cases cited above under Point I have been decided, of course, subsequent to that date. White v. Lake Cormorant Drainage District was decided in 1922. Gillis v. Indian Creek Drainage District upon its first appeal in 1929, and upon its second appeal in 1931. Anderson v. Robins was decided in 1931, and Anderson v. McKee in 1938. With this construction so placed upon the statutes, the legislature has twice re-enacted the statute without changing its terms. Once in 1930 (Section 4463, Miss. Code 1930) and once in 1942 (Section 4689, Miss. Code 1942, Annot.)
It is settled by decisions too numerous to cite in full in this brief that the re-enactment by the legislature of a statute after its construction by the Supreme Court is an adoption by the legislature of the construction placed upon the statute by the Supreme Court. Russell v. Federal Land Bank, 180 Miss. 55 (1937), 176 So. 737; Hoy v. Hoy, 93 Miss. 732, 48 So. 903.
Since the assessment of additional benefits which is the subject matter of this appeal was made after 1942, it was necessarily governed by Section 4689 of the Miss. Code of 1942 in the light of the construction placed upon that statute in the cases cited above.
Point III. The assessment of additional benefits against the lands of appellant was not based on benefits accruing to the land.
It is admitted in the record, and testified to by all witnesses without contradiction, that the upper half of the drainage district where the appellant's lands lie has an adequate canal, and has adequate drainage; that the lower part of the drainage district, where the lands of the commissioners lie, has no canal and has no drainage. It is likewise admitted, and testified to by all witnesses, that the primary motive for the improvement proposed is to relieve the land owners in the lower part of the district.
It was formally admitted in the record that the canal traversing appellant's land is approximately 100 ft. wide, approximately 13 ft. deep, and that none of his lands are subject to overflow from that canal.
The two engineers of the drainage district testified that the upper part of the district was functioning well; and gave in evidence, as grounds for the assessment of additional benefits upon the land of the appellant, not that benefits would be conferred upon his land, but that water drained from his land down to the lower part of the district. The witnesses were the witnesses for the appellee, the three drainage commissioners and the two engineers. It is submitted that their testimony shows clearly that each and every one of them recognizes a difference in fact in the condition of the lands of the appellant and in the lands of the commissioners in the lower end of the district; that they, nevertheless, assessed the lands of the appellant and the lands of the commissioners, and the other lands in the lower end of the district upon the identical basis, which was a basis without reference to the present condition, and without any reference, which they were able to state, to benefits accruing to the lands of the appellant.
The sole reason advanced by any witness in this record to support the assessment of additional benefits upon the lands of the appellant, is the speculative proposition that eventually the ditch which is now 100 ft. wide through his place, and down to the "hard pan", will fill up unless this diversion canal is cut. We concede for the sake of argument that if this had been established by the proof it would show a reason for the assessment of some benefits against the appellant's lands, but certainly not by any wide stretch of the imagination would it ever support an assessment of benefits exactly proportional to those assessed on the lands in the lower end of the district.
The proof, however, failed to show any basis whatever, or any possible basis for any conjecture about the future of this ditch as to whether it would or would not fill up on the appellant's land.
All the witnesses for the appellee testified that it was impossible to foresee when this ditch would fill up.
Even if it could be conceived that the testimony rises to the dignity of evidence tending to show that at some unknown time the main canal will fill in the upper part of the district, still even in that event there is not a syllable of testimony in the record remotely intended to explain why the commissioners would on that theory assess benefits against the appellant in the identical proposition in which the assessed benefits against lands now presently overflowed, the overflow of which is sought to be relieved by the construction in question.
Furthermore, there was no evidence given by the appellee at any time to justify the enormous sum of benefits assessed or attempted to be assessed in this proceeding. When the district was originally organized a canal eleven miles in length was excavated and the total benefits assessed were $93,516.75. Of this total original assessment approximately one-tenth, or $9,360.00, was assessed against the 360 acres of land of appellant. Now when the lower lands of the district are overflowed and it is necessary to excavate a diversion canal approximately three miles in length, as contrasted with the eleven mile length of the original canal, when the necessity for this excavation is to relieve the lower land owners of their present overflowed condition when all the lands in the upper part of the district are adequately drained by a canal that has eroded to a width of 100 feet, the commissioners for the three-mile diversion canal assessed the identical benefits they originally assessed a total of $93,516.75 against the district as a whole, and of this again they placed 10%, or $9,360.00, on the 360 acres of appellant's land. We submit that in this record this assessment cannot in any manner be sustained.
L.A. Smith, Jr. and McClure Fant, for appellee.
The appellee submits the following in answer to the contentions of appellant as set out in his introductory statement:
(1) The statute permitting the assessment of additional benefits by a drainage district has been construed by this court to authorize such additional assessment either where there are additional benefits to the land other than those ascertained and found in the first assessment, or, where it is necessary for the purpose of raising funds to preserve and maintain the improvements of the district. In the event of the assessment of additional benefits under the latter provision, the preservation of the drainage system of the district requires the assessment of all the lands of the district with their just proportion of the costs, and this was done in the present case. Moreover, the assessment of the appellant's land with additional benefits, as confirmed by the court below, is supported by evidence that such land will receive additional benefits from the proposed work.
(2) As stated above, the additional assessment of benefits was made by the commissioners under the authority of the last clause of the statute, which provides for such assessment of additional benefits when it becomes necessary to raise funds to preserve and maintain the improvements of the district. However, such assessment of additional benefits upon the lands of appellant is also supported by a preponderance of evidence in the record to the effect that such lands would receive such additional benefits from the proposed work for preservation of the improvement. It further appears in the record that the assessment of all of the lands of the district, including the lands of appellant, was fair and uniform throughout the district, and based upon the amount of acreage in each tract originally reclaimed from overflow by reason of the installation of the drainage system.
(3) The benefits additionally assessed are shown to be the fair proportion accruing to the lands of the appellant by reason of the construction, maintenance and preservation of the drainage system of the district.
Point I. The statute authorizing the assessment of additional benefits by a drainage district (Section 4689, Mississippi Code, 1942, Annotated) provides for the assessing of such additional benefits under either of two conditions. Such additional benefits may be assessed either, (1) because of additional benefits accruing to the lands other than those already assessed, or, (2) because it becomes necessary in order to raise funds to preserve and maintain the improvements of the district. The latter clause is not a mere repetition of the clause preceding it but is a distinct and additional grant of authority for the assessment of additional benefits where necessary to raise funds to preserve and maintain the improvements of the district and the power to assess additional benefits under that clause is not dependent upon different or additional benefits accruing to the lands other than those assessed and accruing from the original improvement.
The assessment of additional benefits by the commissioners in the present case was authorized by the last clause of the state. The last paragraph of the above section specifies the two distinct conditions under which additional benefits may be assessed against the lands of the district. Such additional benefits may be assessed where lands received additional, in the sense of other or different, benefits other than those assessed and which accrued because of the installation of the drainage system. The latter clause of the section specifies the other condition under which additional benefits may be assessed, and authorizes the assessment of such additional benefits where necessary to preserve and maintain the improvements of the district already constructed.
The statement disjunctively of two distinct conditions under which the assessment of additional benefits is authorized negatives the assumption that the latter clause in the statute is merely a repetition in different words of the preceding clause, or that where additional benefits are assessed to apportion the cost of work necessary to preserve and maintain existing improvements it is necessary that the lands assessed must have received additional or different benefits other than those previously assessed and which will accrue from the preservation and maintenance of such existing improvements.
The legislature recognized the possible necessity of assessing additional benefits not contemplated or taken into consideration in the original assessment and provision is made for such assessment in the statute.
But the latter clause of the statute is a specific grant of authority for the assessment of additional benefits where such additional assessment is necessary to raise funds to preserve and maintain existing improvements, and such grant is logically not made dependent upon the separate tracts of the district receiving benefits other than those originally assessed for the construction of the drainage improvement. Preservation and maintenance of an existing improvement of necessity can merely preserve and maintain the benefits originally accruing from the drainage system and cause a continuation thereof, and the fair and equitable method of apportioning the cost of work necessary to preserve and maintain existing improvements is by apportionment upon the basis of the amount of land reclaimed by the original installation of the drainage system.
The argument of the appellant essentially is to the effect that each separate individually owned tract of land in the district can be taxed only for the cost of preserving and maintaining that part of the canal traversing it. It is submitted that the language of the statute providing for the assessment of additional benefits to preserve and maintain the improvements in the district does not contemplate that such assessments be made on that basis.
In the case of Wheeler and Silber v. Bogue Phalia Drainage District, 106 Miss. 619, 64 So. 375, this court passed upon a contention similar to that now being advanced by appellant in the present case to the effect that his lands may not be assessed with benefits to raise money for the construction of parts of the drainage system not actually touching his lands, and from which such particular lands receive no direct benefit.
In the Wheeler case, supra, the appellant assigned as error: "`Third. The commissioners did not assess the land according to the benefits and construction of improvements that benefited the particular tracts of land.'"
The court, in disposing of this assignment, said: "The argument under this assignment is that appellants have been assessed with the proportionate amount of the costs of certain lateral drains which traverse lands other than that owned by them, and have no effect upon any land owned by them. We have made no examination into the question of fact here raised for the reason that it is not presented for decision by this appeal. One of the first questions to be adjudicated in cases of this character is `whether the lands of said proposed drainage district . . . require a combined system of drainage' (Section 1689, Code of 1906); and a decree adjudicating that the proposed district does require a combined system of drainage is final and cannot be reviewed on an appeal from a decree approving an assessment. What was said in response to appellant's first assignment of error is in point here and may be considered in connection herewith. When necessity for a combined system of drainage has been established, the cost to be apportioned, under Section 1689, to, `The several tracts of land' is `the cost of said proposed work'; that is, of the work necessary to be done in order to put into effect the combined system of drainage. There is nothing in the section to indicate that in apportioning the cost of the work the commissioners shall ascertain what ditches are necessary to drain each tract and to assess each with only its proportionate amount thereof. To do this would seem in most cases to be practically impossible, and in the case at bar one of the considerations entering into the construction of all of the ditches and canals seems to have been the necessity of preventing Bogue Phalia, the principal artery of the system, from overflowing."
In this case (Wheeler etc. supra) the appellant assigned an additional error: "`Eighth. Because the commissioners assessed appellant's lands too high in this: That it was assessed at the maximum regardless of the cost of the improvements that drained the lands.'"
The court said: "This assignment has been disposed of by what is said in response to the third assignment of error."
The necessity for a combined or integrated system of drainage of the territory comprising Red Banks Creek Drainage District was finally settled by this court in the case of Mrs. W.S. Clark, et al. v. Red Banks Drainage District, 112 So. 485, where the action of the chancery court in organizing the district was affirmed per curiam.
The advantages accruing to the lands of appellant and the enhancement of such lands in being reclaimed from overflow are continuing benefits accruing to him by reason of the integrated system of drainage of the district. The owners of land in the lower portion of the district must be protected from the artificially increased hazard of overflow on account of the greater rapidity and volume of bringing down the waters of the entire district. Thus, where the necessity of an integrated system of drainage has been established, as stated in the above case, it is incumbent upon the owners of lands throughout the district receiving benefits on account of the installation of the drainage system to bear their proportionate share of the cost of work necessary to provide a satisfactory outlet for the waters of the district so as to prevent damage to the lands in the lower portion of the district.
In Toler v. Bear Creek Drainage District, 141 Miss. 851, 106 So. 88, in discussing the relative rights of individual land owners and those of the district as a public subdivision created for public purposes, the court said, "It may be that all of the land in the district will not be benefited to the same extent by the establishment of the district, but, if so, that fact is of no consequence, for equality of benefits is not essential to formation of a drainage district." And further the court said, "The purpose for which such districts may be and are established is to promote the public welfare (citing Cox v. Wallace, supra; Jones v. Drainage District, 102 Miss. 799, 59 So. 921), and the private drainage rights of the land owners who own the land composing the district become, ex necessitati, merged in and are supplanted by the rights relative thereto conferred by the statute on the district. If each land owner continues after the establishment of a drainage district to have the right to drain his lands as he pleases, a district could not properly function, and each land owner therein would be at the mercy of every other to the same extent that he was before the district was established, one of the things which the statute authorizing the establishment of drainage districts was inacted to prevent."
It is submitted that this court has recognized the obligation of all of the land owners in the district to bear their just proportion of the cost of work necessary to preserve and maintain the entire system of drainage of the district.
White, et al, v. Lake Cormorant Drainage District, 130 Miss. 351, 94 So. 235. In the cited case, the drainage system had not been completed at the time of the second or additional assessment of benefits by the commissioners. Therefore, the assessment was not made under the authority of the last clause of Section 4689, Mississippi Code of 1942, Annotated, which provides: "Or because it becomes absolutely necessary in order to raise funds to preserve and maintain the improvements of the district." In the White case, the court said, "We deem it unnecessary to consider the question whether the decree can be justified on the ground that the new assessment was authorized by the statute for the purpose of preserving and maintaining the improvements already made." The court then continued to say, "In our opinion under the evidence the decree of the court was authorized by that clause of the statute which authorizes a new assessment of benefits where there are additional benefits to the land other than those ascertained and found in the first assessment." It will be noted that in the White case the court approved a new assessment of benefits by the commissioners, "making a horizontal raise of fifty percent of the first assessment of the lands of the district." The court saying, "The (lower) court in its decree in this case found, and it was justified in so finding by the evidence, that the lands in this district would receive, by the completion of the improvement plan, at least fifty percent more than the benefits considered and assessed in the first assessment." In considering the propriety of the additional assessments in the White case, it was stated that: "It should be borne in mind" that the act authorizing drainage districts provides among other things, "That the act shall be liberally construed to promote the ditching, drainage, and reclamation of swampy and overflowed lands."
The case of Peoples Bank Liquidating Corporation v. Beashea Drainage District, 199 Miss. 505, 24 So.2d 784, discusses the assessment of additional benefits. The drainage district in that case was organized in 1919 under Chapter 195, the Laws of 1912, as amended by Chapter 269 Laws of 1914, bonds were issued and the proceeds of this issue were expended for construction work without fully completing the drainage system. The commissioners then issue certificates of indebtedness which amounted to nearly $8,000.00 to raise additional funds for that purpose. The passage of a special legislative act was obtained, authorizing the issuance of additional bonds with the limitation thereon that the total of the outstanding indebtedness of the district should not in any event exceed the total of the assessed benefits. The court discusses the well established proposition that bonds may not be issued in an amount exceeding the total assessed benefits of the district. The court then said, "The bonds of the second series in the instant case having been issued to retire the certificates of indebtedness incurred for constructing an outlet drain or canal from the borders of the district in Pearl River after the full expenditure of the proceeds of the first series, and for the purpose of making effective, completing and preserving the improvements made under the first bond issue, the commissioners had the right to assess additional benefits against the lands in the district, if in their judgment further benefits would accrue to the land owners by virtue of such further construction, or if in their judgment it had become necessary to preserve the improvements theretofore made." The court then said, "The cases of White, et al. v. Lake Cormorant Drainage District, 130 Miss. 351, 94 So. 235, and Anderson v. McKee, supra, expressly so held." In that case the court also said, "It is to be conceded in the outset that in determining the amount of benefits to be assessed against the lands, and in the issuance and sale of the second bond issue without providing for their payment by assessing additional benefits, the commissioners were acting judicially in that behalf. . . ." The court points out that "Section 6, Chapter 269, Laws of 1914, authorizes the commissioners to have increased the original assessment of benefits in order to pay all the bonds and accrued interest on either bond issue if, in the exercise of their judgment and discretion, they had found that the lands would be benefited more than the amount of benefits first assessed, or if they had found that it became, `absolutely necessary . . . to preserve and maintain the improvements (already made).' This section of the statute therefore vested the commissioners with authority to issue the second series of bonds, and to assess additional benefits for the payment of the same if, in their judgment, it had either become absolutely necessary to complete, preserve and maintain the improvements already made, or if additional benefits would accrue to the owners of the real property of the district as a result thereof; and they were thereby authorized to issue such bonds for the payment of the certificates of indebtedness heretofore mentioned, if the same were issued on the foregoing grounds."
Gillis, et al, v. Indian Creek Drainage District, 155 Miss. 160, 124 So. 162, (1929). The court, considering the statute providing for the assessment of additional benefits, said, "The purpose of the statute taken as a whole is to secure equal and just rights to all of the property owners of the District." This clearly implies that land owners in the lower reaches of the district are not to be penalized, in making the additional assessments to preserve the improvements of the district as authorized by the statute, for the benefit of the land owners in the upper and higher end of the district. The lower court was in error in confirming the action of the commissioners in "picking out" specially designated lands lying in municipalities, and railroad tracks, and a few other bodies of land and making additional assessments against them, the court saying that the district "Does not have the right, under this section anywhere, to pick out certain particular tracts and assess them for the benefits accruing to it, and leave unassessed benefits to other tracts within the district. The purpose of the statute taken as a whole is to secure equal and just rights to all of the property owners of the District."
Gillis, et al, v. Indian Creek Drainage District, 160 Miss. 528, 134 So. 173, (1931), (The second appearance of that case in the Supreme Court), the language of the court is of particular interest in the present case; "After the creation of the District and the completion of the improvements proposed therein, it was found that the ditches and drains had partially filled up and become obstructed with silt and sand flowing out of the hills, and were also obstructed by willows and other small bushes growing therein, and it was determined that it was necessary to make an additional assessment on some of the property in the district to provide funds to clean, repair and maintain the drainage canals originally laid out, and the commissioners of the District proceeded to give notice of a hearing to assess benefits against certain property owners in the District, but not against all of them. From a decree approving an assessment so made, an appeal was prosecuted to this court, and the decree of the court below was reversed in an opinion reported in 155 Miss. 160, 124 So. 262, in which it was held that under the closing portion of Section 7, Chapter 269, Laws of 1914, (Section 4463 Code of 1930) benefits can be assessed subsequent to the first assessment, when it is necessary to assess the property within the district in order to raise funds to preserve and maintain the improvements of the district, and that, when it becomes necessary to make a subsequent assessment under the latter part of the aforesaid section, such assessment may be based upon the benefits that will then accrue to the property of the district without regard to the judgment of the commissioners in the first hearing, but in such case the property of the entire district must be taken and considered, and it is not permissible to select certain parcels or lots of land and assess them with benefits and leave other property benefited by the additional work, or additional assessment, unassessed." The court further said, "When it becomes necessary to make an additional assessment to preserve and maintain the improvements of a district, the benefits to all the land and property of the district resulting from an expenditure of the money to be derived therefrom in maintaining the district must be proportionately assessed against all the lands of the district without reference to inequality that may have existed in the original assessment."
The case Anderson v. McKee, 182 Miss. 156, 179 So. 858, cited by appellant, is not in point. In that case the decision turned upon the failure of the commissioners to assess the lands of the original district and the lands of added territory with additional benefits to support an issue of bonds. The court concluding that the appellant in that case, as holder and owner of such bonds, would only be entitled to a writ of mandamus to compel the commissioners to meet and act in the matter, and was not entitled to such writ to compel them to levy the additional assessment of benefits, and a tax thereon.
The case of Anderson v. Robbins, 161 Miss. 604, 137 So. 476, cited by appellant, deals with the question of mandamus or injunction to compel drainage commissioners to assess additional benefits to pay an indebtedness of the district. It has no reference to the assessment of additional benefits to raise money for the preservation of the improvements within the district.
Point II. The authorities cited by appellant as supporting his construction of the statute dealing with the assessment of additional benefits have been demonstrated either to be not in point or have been shown to support the action of the chancellor in approving the assessment by the commissioners of additional benefits against the lands of appellant in the present case. The subsequent re-enactment of such statute is an adoption of the court's construction thereof, which is shown to have been favorable to appellee.
The principal of law announced in Russell v. Federal Land Bank of New Orleans, 180 Miss. 55, 176 So. 737, and Hoy v. Hoy, 93 Miss. 732, 48 So. 903, to the effect that reenactment of a statute which has been judicially construed is an adoption of the construction placed upon it by the court, is not controverted by the appellee.
It is submitted that the application of such principle to the present case requires the conclusion that the legislature, by reenacting the statute under consideration after the decisions of this court in the cases hereinbefore discussed, adopted the construction placed upon such statute by the court to the effect that additional benefits might be assessed under the latter clause of the statute where necessary to raise funds to preserve and maintain the improvements of the district already made, without regard to whether different or additional benefits accrued to such lands other than those accruing to such lands by reason of the continuation, preservation and maintenance of the drainage system.
Point III. The record of the testimony in this case, taken as a whole, conclusively demonstrates that the appellant, in common with other land owners of the district, will receive the benefits assessed through the preservation and maintenance of the system of drainage improvements.
There is direct testimony to the effect that the additional benefits assessed appellant's lands would accrue to his lands by reason of the construction of the proposed improvement. And it is now immaterial that the appellant denied such benefits would accrue to his land, such testimony on his part merely contradicting the evidence for the district in that respect, and the chancellor's finding on conflicting evidence that his land, in common with the other lands of the district, will be benefited by the construction of the proposed drainage system is not open to review in the Supreme Court. Wheeler and Sibler v. Bogue Phalia Drainage District, 106 Miss. 619, 64 So. 375, supra.
In Wheeler and Sibler v. Bogue Phalia Drainage District, supra, this court expressly decided this question in disposing of the third and eighth assignments of error in that case.
It is submitted that this court, in all the cases cited, has construed these statutes to authorize the assessment of all lands benefited by the construction of the drainage system for proportionate part of the cost of work necessary to preserve and maintain the system, regardless of the fact that such work might not be necessary opposite each separate tract abutting the drainage canal.
The cited statutes appear to be similar in theory to legislation in other states, which has been construed by the courts of such states to require the apportionment of the costs of work necessary to preserve and maintain existing improvements against all of the lands of the district receiving benefits from the drainage system. Henshaw v. Holt, 262 Ky. 19, 89 S.W.2d 313; Mayne v. Pottawattamie County, 178 Iowa 783, 160 N.W. 345; Watson v. Armstrong, 180 Ind. 49, 52, 102 N.E. 273.
Chancellor's finding supported by substantial evidence would be accepted by the Supreme Court. Hays v. Lyon, 192 Miss. 858, 7 So.2d 523.
The theory of appellee in this case is in line with legislation and court decisions in other states:
Under some statutes assessments for repairs or maintenance must be in the same proportion as the assessment for the construction of the drain. Citing Bonds v. Pikey, 269 Mo. 398, 190 S.W. 883.
Property already benefited by original work, which receives no additional benefit, may be assessed for additional work necessary to give equal protection to other land owners in district. Rauch v. Himmelberger, 305 Mo. 70, 264 S.W. 658.
The drainage system, once established and completed, is an improvement from which the district as a whole is conclusively presumed to receive a benefit. Berieholz v. Board of Supervisors of Pocahontas County, 186 Iowa 1147, 173 N.W. 1.
It is therefore submitted that the decree of the lower court, having been in accordance with law and based upon competent, substantial and believable evidence, should be affirmed.
This is an appeal from a decree overruling appellant's protest against an assessment by the appellee of lands of the former in order to effect the sale of bonds of the district in the sum of $25,000 for maintenance and repairs alleged to be "absolutely necessary to preserve and maintain the drainage system of the district."
This district was organized June 21, 1926, under Chapter 195, Laws of 1912, and Chapter 269, Laws of 1914, Code 1942, Section 4674 et seq. Thereupon, a canal eleven miles in length was constructed, running through the counties of Marshall and DeSoto and into what was then Pigeon Roost Creek, and later into Pigeon Roost Drainage Canal.
Appellants owned three hundred and sixty acres of land within the district situated at its upper end and extending about one and three-quarter miles above the head of the canal. His lands are shown to be from fifty to sixty feet higher in elevation than lands four miles below and on the canal.
The original bond issue for construction was $46,000 upon an assessment of total benefits in the amount of $93,516.75. Annual levies have totaled $77,123.26. Unconsumed benefits amounts to $16,393.49. The original bond issue has been fully paid.
Appellee presented for approval and adoption a new assessment roll duly itemized, prepared and certified, providing for the assessment of "new and additional benefits" in the original sum of $93,516.75. It was in all respects similar to the original assessment of benefits preliminary to construction. It was alleged and shown that the lower area of the canal has been obstructed by debris, drifts and silt accumulated during the years, and that a proper maintenance of the district requires further assessment to this end.
The testimony discloses that while the new assessment roll was identical with the former, there had been inspection and survey of the lands, verifying both the necessity for such repairs and betterments, and that such repairs were absolutely necessary for its preservation and maintenance. Appellant insists that the adoption of the figures included in the original assessment was an arbitrary device and bore no proper relation to the increased benefits to lands of appellant. Concessions is made only to the probability that lands of appellant may in the future be damaged by a progressive building up of the stoppage. Our conclusions render unnecessary a further examination of the testimony.
(Hn 1) The policy and purpose of our drainage acts is the reclamation of overflowed, non-productive or insanitary lands, and the several districts are organized as legal and administrative entities and, as such, were declared to be a body politic with the right of perpetual succession. Code 1942, Sections 4591, 4609. Each district "shall continue to exist as a body corporate, for the purpose of preserving the system of drainage and keeping the ditch clear from obstruction . . . and for doing such other things and acts in order to carry out the purposes . . . of the drainage system so established, as may be found advantageous to the district." Code 1942, Section 4713.
The crux of our inquiry is whether an additional assessment may be made without regard to the present existence of actual and additional material benefits to a particular integrated tract, when it appears "absolutely necessary in order to raise funds to preserve and maintain the improvements of the district". Code 1942, Section 4689. The exact point has not been squarely faced by us heretofore. Opposing counsel cite the same authorities to support their respective views. These cases will appear in the able briefs to be herewith reported, and we do not turn aside to analyze or construe them. A conclusion that a necessity for preservation and reclamation of the system itself, stands upon a different footing from a mere increase of assessments "because of additional benefits", would leave most of these decisions without point. We take occasion to state that in none of them is any view expressed inconsistent with our conclusions. Gillis v. Indian Creek Drainage District, 160 Miss. 528, 134 So. 173; and People's Bank Liquidating Corporation et al. v. Beashea Drainage District, 199 Miss. 505, 24 So.2d 784, lend definite support thereto.
In this connection, we set out in full the relevant portion of Section 4689: "no new assessment roll shall be required unless in the opinion of the commissioners it becomes necessary to raise the assessment of benefits to such lands because of additional benefits to the lands other than these assessed, or because it becomes absolutely necessary in order to raise funds to preserve and maintain the improvements of the district."
(Hn 2) It will not be doubted that in organizing and financing a new district, the theory of proportionate benefits is paramount. Actual resultant benefits are at once the justification for, and limitation of, the assessments. The district is the creature of its members, and in turn the creator of their benefits. Their rights to bind themselves in such common cause is measured by their duty to maintain this political entity, and their original investment. If in their union there is to be found a new strength, so must also there be found strength in the union.
Appellant's dissent is proclaimed from the vantage point of a dry and secure footing, from which elevation he would view dispassionately the calamity which besets his less fortunate partners now mired in the morass to which his waters and the flotsam from his own lands have made contribution. We are challenged with three alternatives. The first is that this beleaguered brethren bear the entire expense of its salvation. The second is that the appellant bear his just proportion of the burden of reclamation. The third is that the district be abandoned, and its investment allowed to founder amid its own quicksands.
Section 4689 authorizes a new assessment roll in two distinct cases: (1) When, because of additional benefits, it becomes necessary to raise the assessment of such benefits; or (2) when it becames necessary to preserve and maintain the improvements theretofore made. In the latter case, there is no mention of ascertainable benefits except such as are implicit in the preservation of that which had been judicially determined to be an asset to the whole district.
(Hn 3) In adopting a construction that it was the policy of the Legislature to justify a proportionate burden among all members of this autonomous body upon the grounds of a common emergency, we may well invoke Section 4641 which recognizes the need for a liberal construction of the entire act to effectuate its ends. Such public policy is further reflected in Section 4609, which provides: "they (the Commissioners) may make additional assessments from time to time, as necessity may require, to pay for the expense of maintaining, cleaning out, and keeping in repair the ditches of said district and meeting the legal obligations of such district; and the additional assessment for maintaining, cleaning out, and keeping in repair of the ditches of said district and meeting the legal obligations of such district shall be made by the commissioners in the following manner; on or before the first Monday in September of each year the drainage commissioners shall assess on each tract of land, or other property in the district, in proportion to the original and supplemental benefits assessed for construction, such an amount as is necessary to pay the expense of maintaining, cleaning out and keeping in repair the ditches of said district, and meeting the legal obligations of such district and shall certify their assessment to the board of supervisors of the county in which the land lies, and it shall thereupon become and be the duty of the board of supervisors to levy a tax in accordance with such assessment sufficient to meet said expense of maintaining, clearing out, and keeping in repair the ditches of said district. The said tax levied shall be apportioned to, and levied on each tract of land or other property in said district in proportion to the original and supplemental benefits assessed for construction, and not in excess thereof."
A maintenance tax in proportion to the original assessments has been recognized by statute in several states. 28 C.J.S., Drains, § 66, p. 426. See Iowa Code 1946, § 455.137; Missouri Rev. St. 1939, Sec. 12535 Mo. R.S.A. When it is considered that our Laws of 1912, Chapter 195, and Laws 1914, Chapter 269, provide that neither shall "repeal the drainage laws now in force", it is not difficult to deduce a legislative policy to justify necessary repair as a benefit to each and every member of the district whose individuality has become merged as an exigency of the social order into a community of benefit and of responsibility.
Such policy is fortified by Code 1942, Section 4752, which is as follows: "All of the provisions of the code chapter on drainage districts which are not contained in this article, and which do not conflict with any of the provisions of this article, shall apply to any districts organized or operating hereunder."
A conception of the district as a corporate body makes plain the probability of its ultimate decease through functional disorders or an infection in an extremity, be it head or foot; even as a sound alimentary canal will tend to promote its vigor and longevity. A paralyzed member is not merely an affliction to itself, for health is an attribute of the body. The statute forbids not only a crippled existence, but also any impairment by amputation.
We express some concern, however, at the disclosure that although a bond issue for repair has been fixed at $25,000, the new assessment roll contemplates additional assessments in the amount of $93,516.75. We could not approve any procedure whereby the commissioners may be tendered a blank check for future contingencies or demands. It must be assumed that no levy would be fixed which would create a surplus beyond expenses that are "absolutely necessary to its maintenance and preservation."
In this connection, such resources now available to the district in unexpended funds and otherwise are to be taken into account. The need both authorizes and limits the burden which the petition seeks to impose, and which it has fixed at $25,000, with interest. Such is a condition attached to our affirmance of the decree. Nor are we concerned with the possibility of similar future demands. It will be time enough to deal with these, if and when they should be presented.
Affirmed.
Smith, J., took no part in the decision of this cause.
I concur in all that has been said in the controlling opinion and in the concurring opinion, except the apprehension arising out of an assessment for more than is presently needed for the preservation and maintenance of the drainage system of this district, as expressed in the first named opinion. The first assessment in this case was made about twenty years ago, and was for an amount in excess of that which was then needed to construct the drainage system of the district. All of that assessment has not yet been exhausted but the amount now remaining is insufficient to pay for the work now necessary to maintain and preserve the system and consequently another assessment is necessary if the district is to discharge its obligation to preserve the system. It is proposed at this time to use only a little over one-fourth of the additional assessment for those purposes, but the law requires that the system shall be preserved and maintained in future. It is presumed that public officials will discharge their duty in accordance with the law. This they cannot do in this case unless funds for that purpose are made available. The drainage commissioners are entitled to look to the future just as they did look to the future when the original assessment was made in this district. No levy of taxes is now being made for the entire assessment, and I entertain no apprehension that any additional levy will be made thereon until the time arrives when further funds are needed. If the original assessment is used as a criterion, we may assume that another twenty years will elapse before another assessment is made and during that period taxes may be levied from time to time under the assessment which is challenged on this appeal.
The only question presented in this case is one of statutory construction. It involves the construction of Chapter 195, Laws of 1912 and amendments thereto, now constituting Sections 4674 through 4755, Code of 1942. Our only problem is to determine the legislative intent.
Buchanan owns lands in the upper end of the district, some 60 feet higher than the lands in the lower end. Before the drainage district was organized, neither he nor any group of private landowners had authority in law to accumulate surface waters on his or their own land, or lands, and, by means of a ditch collect and discharge them in volume upon the land of another, without liability for damage. Illinois Central R. Co. v. Miller, 68 Miss. 760, 10 So. 61; Cresson v. Louisville N.R. Co., 166 Miss. 352, 146 So. 462. Drainage systems, too, are expensive in construction and the cost of construction lies beyond the means of the average individual. So the Legislature, in order to promote agriculture, as well as the public health, enacted the law in question to promote the ditching, drainage and reclamation of wet, swampy and overflowed lands as expressed in Section 4728, Code of 1942.
Under Sections 4683 and 4684, Code of 1942, it is provided that upon organization of a drainage district, the board of commissioners shall prepare plans for the improvement within the district, showing the location, width and depth of the ditches and such other work as embraced within the plan of improvement, and ascertain the cost thereof, and under Section 4688, Code of 1942, they are required to file this plan of improvement with the board of supervisors, accompanied by detailed maps, profiles, and specifications giving the detail and the location of each improvement to be constructed. Section 4689 provides for the assessing of benefits to accrue to each tract of land, by reason of the construction of those particular improvements, as detailed by the plan so filed by them, and none other. The assessment roll is then filed and notice published to the landowner owning lands in the district, advising them that their lands have been assessed for drainage purposes and that the Chancery Court will hear objections to said accessments on the day fixed in the said notice. The Chancery Court, or Chancellor, if the hearing be held in vacation, on the day fixed in the notice, hears the objection and enters its order either confirming said assessment, or increasing or diminishing the same, and the landowner is given 20 days within which to appeal to the Supreme Court.
The foregoing statutory proceedings have been pointed out to show that it is the construction of the particular improvements, as shown on the detailed plan of improvement filed with the board of supervisors, that is the basis for the assesment of benefits and it is all of the benefits flowing to each individual tract of land by the location and construction of those particular improvements but none other that are assessed on the assessment roll.
When this assessment roll has been approved by the Chancery Court or Chancellor in vacation, it is provided by Section 4689, Code of 1942, that the assessment roll "shall stand as a final assessment of benefits upon the lands of said district and no new assessment roll shall be required unles in the opinion of the commissioners it becomes necessary to raise the assessment of benefits to such lands because of additional benefits to the lands other than those assessed, or because it becomes absolutely necessary in order to raise funds to preserve and maintain the improvements of the district."
In passing let us note that since the benefits that are assessed are all of the benefits flowing from the construction of the improvements, as shown by the detailed plan on file, and the assessment is fixed by the statute as having the force and effect of a judgment, then this judgment or assessment becomes res adjudicate as to the amount of all the benefits flowing from the construction of the improvements shown by that filed plan and continues as res adjudicata upon any amount to be thereafter assessed, additionally, except in the two instances as specified in the statute: (1) the assessment may be increased by assessing additional benefits other than those assessed, that is to say, flowing from another new plan of improvement. Any benefit, flowing from the old plan and already assessed, could not be, in logic and common sense, an "additional benefit . . . other than these assessed" as required by the statute and (2) where there is no new plan of improvement upon which additional benefits other than those already assessed, are received or could be assessed, but where without any new or additional work or benefits "it becomes absolutely necessary in order to raise funds to preserve and maintain the improvements of the district," in which event the commissioners can raise the assessment by authority of the express terms of the statute.
When the notice was published and ran to the landowners, advising them under the statute that their lands had been assessed for drainage purposes and that the court would hear and determine objections to such assessments on the day fixed in the notice, the statute wrote into that notice to each landowner, as fully a part thereof as if expressly written therein, that that assessment so made against his lands, when approved by the court, would be used as a basis for collection of taxes and when through the levy of taxes against it through the years the amount of benefits assessed had, by the landowner, been paid to the district in the aggregate of his taxes paid, the commissioners had the power, under the express provisions of the statute, to raise the assessment of benefits against all the lands in the district equally and proportionately if it should become absolutely necessary in order to raise funds to preserve and maintain the improvements of the district.
The Legislature recognized the fact that ditches would be constructed by the district and surface water would be collected in its upper reaches and all along its route and discharged through the channel of the ditch so constructed. This collects the water in the upper reaches and brings it down in a body and with greatly accelerated flow through the lands of adjacent owners.
The Legislature also knew and recognized that these ditches from the upper lands to the lower lands, as they leveled out on their lower reaches, would have a tendency to slacken and retard the velocity of the waters traveling through these lower reaches and would have a tendency to fill up with deposits of sand and debris. If such condition should arise the landowner, on the lower reaches, whose lands had been assessed for the purpose of draining his land would find his lands thereby flooded with collected surface waters, collected in a ditch, and released upon his lands in collected quantities and with an accelerated flow, greatly to his damage, thereby enabling his neighbors, through the drainage district to do that which in private capacity they had no legal right to do and leaving him defenseless and without right to claim his damages. Such a result would convert the drainage district into the instrument of his destruction instead of the instrument of his salvation as it was designed and intended to be. So the Legislature established the drainage district as a quasi public corporation, giving it perpetual existence and by Section 4713, Code 1942, it was provided that "The drainage district shall not cease to exist upon the completion of its drainage system, but shall continue to exist as a body corporate, for the purpose of preserving the system of drainage and keeping the ditch clear from obstruction . . .".
It costs money to preserve the system of drainage and to keep the ditch clear from obstructions. The drainage district's revenue must come from taxes collected. It cannot levy an ad valorem tax upon the land. The levy must be made against the benefit assessed against the land. If it be the duty of the district, under the statute to perpetually preserve the system of drainage and to perpetually keep the ditch clear of obstructions, then revenue from taxes must come in perpetually with which to pay for this work, and assessments of benefits, out of which such taxes can be collected, must be perpetually maintained, even in districts where no improvements are constructed except those in which there is only the original plan and no other benefits ever accrue except those originally assessed.
The drainage act is a whole and united scheme that is visioned to run from organization in perpetuity. It contemplates not only the construction of the improvements but it equally contemplates their maintenance in perpetuity. Appellant Buchanan would fondly embrace that part of the act that provides for the original construction of the improvements but wholly reject that part that provides for maintenance through perpetuity. He cannot do this. He must take the act as a whole. He has had his day in court on the organization of the district. Through the assessment of benefits against his lands, those lands are tied in and subject to all of the terms of the drainage law. If he is unwilling to be bound by the terms of the drainage covenant his remedy is to sell his lands and move elsewhere.
There is no new construction work contemplated under the proposed bond issue. It is the same work detailed in the original plan of improvement on which the original assessment of benefits was made. The canal along its lower reaches filled up with logs and debris. It would be much more expensive to go into the old channel of this ditch, now filled with logs and dirt, excavate the dirt from around the logs and then excavate the logs than it would be to dig another channel in good dirt right along beside it. This is not a change of plan, it is merely an adjustment to a construction difficulty and authorized by the drainage act. There is no new plan for new work for which an additional benefit could be assessed. This is the same ditch called for in the original plan of improvement and the benefits flowing from the construction of which have already been assessed by the original assessment of benefits. No additional benefits will flow from the construction of this ditch, which is dug for the purpose of maintaining the original ditch as planned, and hence none can constitutionally be assessed against the lands through which it runs. These benefits flowing from the construction of this ditch have already been assessed and are the same identical benefits already assessed against these lands in the original assessment.
What is contemplated here is exclusively the maintenance and preservation of the improvements in the district. The benefits flowing from the original construction of that improvement were originally assessed at $93,510.75. The drainage law provides for the maintenance and preservation of those improvements by each landowner in proportion to the benefit received by him by a tax against the benefits assessed against his lands. For purposes of maintenance taxes this proportionn must be maintained. Here the commissioners filed a new assessment roll, for maintenance purposes, finding it absolutely necessary so to do in order to raise funds to preserve and maintain the improvements of the district, as fully authorized by Section 4689, Code of 1942. They preserved the original liability of each land owner in proportion to the benefit assessed against his lands, by assessing each tract of land in the same identical amount as assessed on the original roll and this was approved by the Chancellor after notice to the landowners, as provided in cases of original assessment. How else could a new assessment roll be made, more accurately preserving the original proportionate liability of each tract of land for maintenance and preservation of the improvements. But it is said it was not necessary to raise the benefits $93,516.75 in order to support the proposed bond issue of $25,000 to clean out the canal. This is true, but it was absolutely necessary to raise the benefits in order to provide funds for preserving and maintaining the improvements of the district. The district will not cease to exist when this maintenance work is completed but it will go on in perpetuity still charged with preserving and maintaining them. If the district had undertaken to assess only a sufficient amount to pay off $25,000 plus interest plus ten percent for unforeseen contingencies, then it would have had to do so on a percentage level and the issuing of bonds would have wiped out the benefits and have left the district powerless again to do anything by way of preserving the improvements of the district until the benefits should have again been raised. Shall the district raise the benefits each year? There would be just as much reason to require them to act each month or from day to day as expenses arose and the raise in benefits became necessary. I do not so construe the act. No district could function under such a construction of the law. The act contemplates that the work of preserving the improvements shall go on when needed and the benefits shall be taxed to pay for it. If the benefits are exhausted, in the process, they shall be proportionately increased. The landowner does not pay his entire benefit in one year, he merely pays the percentage tax levied against it for that year. The law itself sufficiently safeguards the rights of the landowner by providing that this benefit, assessed against his land for purposes of maintaining the improvements of the district, shall not be liable to be taxed for any other purpose. The benefit, therefore, will be paid off in taxes only if, when, and to the extent each year that it is absolutely necessary for preserving the improvements in the district. This measures the right and the extent of the right of the commissioners in levying the annual tax. Any abuse of that right will be restrained by the courts.
In my humble opinion the decree of the lower court was manifestly correct and should be affirmed.
The Red Banks Creek Drainage District was organized in 1926 under the statutes mentioned in the majority opinion herein. Soon thereafter the landowners in the district were assessed with total benefits amounting to the sum of $93,516.75. The appellant, George M. Buchanan, then owned, and still owns, 360 acres of land in the district, and 312 acres thereof were then designated "overflowed lands", and the assessment of benefits originally made against his lands was the sum of $9,360, being approximately one-tenth of the total benefits assessed on all of the lands of the district. He had paid approximately 82 1/2% of these assessed benefits under annual tax levies made to pay the cost of the drainage canal, approximately 11 miles in length, which passes through his lands that are located near the head of such canal.
Beginning at a distance of approximately 4 1/2 miles below the appellant's land, the original canal has been completely filled up and obliterated from that point to its original terminus, but the lands of the said appellant are well drained by the upper and remaining portion of the canal and none of them are now subject to overflow.
The appellant recognizes his liability for the payment of the remainder of the $9,360 originally assessed against his lands if the payment thereof should be needed to preserve and maintain the improvements of the district, and also recognizes that he would be liable for any additional benefits that may be assessed on a new assessment roll against his land for such purpose, provided there should be any additional benefits to accrue to his lands under the supposed new assessment roll than those which accrued to him and were paid for under the original assessment; but of course he challenges the right of the commissioners to now assess his lands with additional benefits in the sum of $9,360, where it is shown that no additional benefits will accrue to him on account thereof.
It was clearly shown on the hearing of the objection to the so-called new assessment roll when the same was submitted by the drainage commissioners to the trial court for approval that it is only a remote possibility that any additional benefit will ever accrue to the lands of the apellant by reason of the construction of the proposed diversion canal in the lower end of the district where there are no longer any improvements to be preserved and maintained. The three commissioners and the engineers of the district were frank to testify only that unless the contemplated diversion canal should be constructed in the lower end of the district from the proceeds of the $25,000 proposed bond issue for that purpose, the canal above where the new construction is to begin may fill up in a few years to where it would impede the efficient drainage of the appellant's lands, although it is conceded that there is a fall of from 40 to 60 feet from the elevation of his lands to the point of the proposed new construction.
Notwithstanding the undisputed proof on the above mentioned issue, the commissioners, whose lands are all located in the lower end, or overflowed part, of the district, assumed to go upon the lands and then report to the court their finding that additional benefits would accrue to the several tracts of lands in the district to the same extent as under the original assessment of benefits in the sum of $93,516.75, and that the appellant should be assessed for additional benefits in the same amount of his original assessment in the sum of $9,360. The trial court accordingly approved and confirmed this reinstatement of the original assessment roll, and found as a fact without probative evidence in that behalf that such additional benefits would accrue to this objector on a supposed new assessment roll, and as being authorized by the last paragraph of Section 4689, Code 1942, which reads as follows:
"The assessment roll (of the benefits originally assessed) so prepared and filed by the commissioners, when approved by the chancery court or chancellor in vacation, shall stand as a final assessment of benefits upon the lands of the said district and no new assessment roll shall be required unless in the opinion of the commissioners it becomes necessary to raise the assessment of benefits to such lands because of additional benefits to the lands other than these assessed, or because it becomes absolutely necessary in order to raise funds to preserve and maintain the improvements of the district." (Italics mine.)
In my opinion, the foregoing provision of the statute clearly means that if either of the two contingencies set forth in the italicized part thereof do exist in the opinion of the commissioners then, and in such event, a new assessment roll shall be required; and that the same shall be based upon the same considerations on which the original assessment roll was founded; that is to say, upon the proportionate benefits accruing to each respective landowner.
This being true, the action of the commissioners in the instant case in reinstating the original total benefits assessed of $93,516.75 on all of the property of the district against which to levy taxes to defray the cost of the proposed construction of the diversion canal in the sum of $25,000, does not amount to a new assessment roll as contemplated by the said statute; and neither could such an exorbitant assessment have reasonably been deemed "absolutely necessary in order to raise funds (in the sum of $25,000) to preserve and maintain the improvements of the district." No decision is cited in any of the briefs of counsel that would tend to sanction such an excessive assessment of benefits against the landowners, under which the commissioners would be allowed by the authority of our previous decisions in the cases of Anderson v. McKee, 182 Miss. 156, 179 So. 858, People's Bank Liquidating Corporation et al. v. Breshea Drainage District, 199 Miss. 505, 24 So.2d 784, to issue certificates of indebtedness or bonds until the amount of this additional assessment of benefits shall have been fully consumed.
It is to be assumed that if we should affirm the decree appealed from herein, the supposed new assessment roll, as approved by the chancellor, would stand as a final additional assessment of benefits upon the lands of the district to the same extent as the original assessment became final when approved by the chancellor in 1926, and that the appellee, as objector to the proposed additional assessment against his lands will be deemed to have had his day in court and to be forever bound by such additional assessment until he shall have fully paid the same, if in the opinion of the commissioners it should become necessary to make levies against such assessment until the full benefits assessed shall have been paid for the purpoe of enabling the commissioners to take such steps as they may deem necessary in order to raise funds to preserve and maintain the improvements of the district, and this without regard to whether or not the work now proposed to be done or any future undertaking would cause any additional benefits to accrue to his land.
The decree appealed from is unconditional, that is to say, it does not undertake to limit the commissioners to the collection of $25,000 against the $93,516.75 of new benefits assessed. The affirmance of this decree would authorize the commissioners under Section 4695, Code 1942, to collect the estimated cost of the proposed improvement, with not less than 10% added for unforeseen contingencies, and to be paid in annual installments not to exceed 10%, in any one year, of the $9,360 assessed against the lands of the appellant. Section 4696, Code 1942, would authorize the commissioners to make an annual tax levy, in an amount not exceeding the installment of assessment levied for that year; Section 4701, Code 1942, provides that if the tax levied shall prove insufficient, the board of supervisors shall make another levy, from year to year, until the improvement is completed, but not to exceed the value of the benefits assessed against the land; Section 4704, Code 1942, would authorize the commissioners to borrow money and issue bonds therefor "not exceeding in amount the total amount of benefits assessed against all the real property in the district"; Section 4712, Code 1942, would authorize the commissioners to construct ditches outside of the district to obtain a proper outlet for the drainage system, and to condemn and pay for rights of way for such purpose; and Section 4718, Code 1942, provides that all bonds and evidences of indebtedness issued by the commissioners are to be secured by a lien on all of the lands, in an amount not to exceed the amount of benefits assessed against them, and requires the commissioners to see to it that an assessment is levied annually and collected for the payment of any bonds issued, or obligations contracted for, under their authority, and the making or levying of said assessment may be enforced by a mandamus at the instance of any person interested.
In other words, even though the theory of mutual obligation and responsibility on the part of the landowners of a drainage district to see to it that each individual landowner is provided with permanently efficient drainage may appear to be plausible on its face, there is nevertheless encountered the constitutional objection that the commissioners would be without authority to fix a lien of $9,360 against the land of the appellee, and to enforce the satisfaction of such lien, or any part thereof, where no benefit is to accrue to him in return therefor. May he be thus deprived of his property, without violating due process of law?
In the case of People ex rel. Mann v. Allen, 330 Ill. 433, 161 N.E. 867, 871, there was involved an assessment of additional benefits for an improvement in an already existing drainage district. There were objections to the assessment upon the ground (1) that there would be no additional benefits accruing to the land of the objectors; and (2) that the additional assessment would exceed the contemplated additional benefits to accrue to the district. The Illinois Court made the following announcement: "The objectors . . . were benefited by the first improvement, because the ditches were dug in such a way as to facilitate the drainage of their lands through the natural water courses to the swale at the lower end of the ditch. The present proceeding is to drain the low, wet lands, which would benefit only the landowners in the south portion of the district, and those not benefited cannot be assessed to pay for the improvement."
The precise question involved in the case now before us has never been specifically dealt with by this Court. However, the principle above announced by the Illinois Court is implicit in the clear recognition by this Court in its opinions in the cases of White et al. v. Lake Cormorant Drainage District, 130 Miss. 351, 94 So. 235; the two Gillis cases, Gillis v. Indian Creek Drainage District, 155 Miss. 160, 124 So. 262, and 160 Miss. 528, 134 So. 173; Anderson v. Robins, 161 Miss. 604, 137 So. 476; Anderson v. McKee, 182 Miss. 156, 179 So. 858; and People's Bank Liquidating Corporation v. Beashea Drainage District, supra, that an assessment of additional benefits to the landowners in a drainage district are to be based upon the proportionate benefits that are to actually accrue to each particular tract of land involved on a new assessment roll. For instance, in the White case, supra, it is recognized that since the lands of certain landowners in the district did not receive any additional benefits on account of the new assessment, it was proper for the trial court to release such lands from the new assessment. On the first appeal of the Gillis case [ 155 Miss. 160, 124 So. 264], it was held that the drainage commissioners were without authority to assess especially designated lands with additional benefits and fail to make such an assessment of additional benefits "against other property receiving benefits." The two Gillis cases involved an additional assessment to preserve and maintain the improvements of the district, and the construction given by the Court to the last paragraph of Section 4689, Code 1942, here involved, is not that all of the lands in the district, without regard to the accrual of additional benefits, must be assessed; but, on the contrary, that the assessment of additional benefits must follow the finding of benefits to be conferred upon the land by the work proposed. And, in the case of Anderson v. McKee, supra [ 182 Miss. 156, 179 So. 859], the Court said: "It was held in the case of Anderson v. Robins, 161 Miss. 604, 137 So. 476, 478, that `the Legislature had full power, under the Constitution, to authorize drainage districts to contract debts prior to the assessment of benefits from the proposed drainage scheme to the land of the district, provided liability therefor is not imposed on the land or its owners, in excess of the benefits accruing to the land.' It follows from this that the Legislature could authorize drainage districts to contract debts subsequent to the assessment of benefits, provided liability therefor is not imposed on the land or its owners in excess of the benefits accruing to the land." (Italics mine.)
In the case of Simmons v. Hopson's Bayou Drainage District, 112 Miss. 200, 72 So. 901, 902, the drainage commissioners "made a new assessment upon the lands of the drainage district, under chapter 196, §§ 1698 and 1700, Acts of 1912, and ordered the issuance of additional bonds of the drainage district . . . for new drainage work necessary in cleaning, enlarging, and repairing the drainage system of the district, and in paying a balance due for work already done thereon." The precise contention made is not stated in the opinion, but the language of the Court in this decision construing the statute for assessing additional benefits for the preservation of the drainage system, and for paying a balance due for work already done, is in the following words: "As to the third assignment of error, we see no merit in whatever, as the act itself . . . expressly provides that the commissioners may do exactly what they did do — make the new assessment of the benefits to be derived by each seperate tract of land, and raise revenue therefrom according to the provisions of the law." (Italics mine.)
I don't think that the Court, by an opinion in the present suit, can fully safeguard the rights of appellant in regard to this exorbitant assessment against his lands as against future attempts to collect the additional $9,360, or a greater part thereof, for additional work or construction from time to time, without regard to benefits to accrue to him, since, under Section 4689, Code 1942, the additional assessment, in my opinion, if affirmed by us, would "stand as a final assessment of benefits upon the lands of the . . . district", and the right of the commissioners to issue certificates of indebtedness or bonds would be fixed by the several statutes hereinbefore referred to, and by the decisions of this Court in the cases of Anderson v. McKee and People's Bank Liquidating Corporation et al. v. Beashea Drainage District, supra, unless the said decisions should be overruled and unless we construe the several other statutes to have a different meaning than that which their language would indicate.
Therefore, it is my judgment that in any event it is proper to reverse the cause for a bona fide assessment of the additional benefits that may accrue to each respective tract of land, if any, and that under the present record there was no authority for the assessment of any additional benefits against the appellant since it was not shown that any additional benefits will accrue to his lands, except that there is a mere remote possibility that they would accrue at some time within the next few years, and it is well-settled that judgments and decrees are to be based upon reasonable probabilities and not mere remote possibilities.
Roberds, J., concurs in this opinion.