Under an act approved March 4, 1915 (Gen. Acts 1915, p. 167), to provide for the drainage of farm, wet, swamp lands so as to promote the public health and general welfare, a corporation known as Fayette and Lamar Counties drainage district No. 2 was declared organized by the probate court of Fayette county. The petition therefor was filed with the probate judge of Fayette county, and the probate judge of Lamar county acted with the probate judge of Fayette county, sitting together at the hearing, as the act directs, because the territory embraced in the district included land in both of the counties. The territory to be drained is known as Hell's creek bottom and swamp, the approximate length of the proposed drainage canals being about 20 miles, and the approximate area of the bottom land is about 4,000 acres. This act of 1915, p. 167, was amended on September 27, 1923 (Gen. Acts 1923, p. 514, art. 40), which forms a part of what is known as the Agricultural Code of Alabama.
When this corporation was organized and established by the probate court as aforesaid, three commissioners were appointed by the court, as section 10 of the original act directs, and they qualified as commissioners. John B. Wheeler was one of the three commissioners appointed by the court. He qualified on or about April 6, 1923, and on February 12, 1924, he tendered his resignation, as commissioner, and it was accepted by the court. Section 10 of the act provides all vacancies on the board shall be filled by the court, but, if a majority in number of the owners of real property in the district shall petition for the appointment of particular persons as commissioners, it shall be the duty of the court to appoint the persons so designated.
J. S. Hollis, a resident of Fayette county, owner of land in this district, and over 21 years of age, made written application to this probate court and the judges thereof to fill the vacancy in office of commissioner caused by the resignation of John B. Wheeler. The probate court, with both judges sitting as the act directs, heard the petition, and refused to appoint a person to fill the vacancy under it, because in their opinion this act (Gen. Acts 1915, p. 167) under which this corporation — Fayette and Lamar Counties drainage district No. 2 — was created and organized, and the act amending it in General Acts 1923, p. 514, are unconstitutional and void. John S. Hollis filed petition with the circuit court, verified by affidavit, setting forth the facts as to the organization and establishment of this corporation, the appointment of the commissioners, the resignation of John B. Wheeler, the application to the probate court to appoint a person to fill the vacancy, the refusal of the probate court to make the appointment, and its reasons therefor. This petition seeks a writ of mandamus to compel the probate judges of the counties of Lamar and Fayette, sitting as a probate court, to appoint a suitable person to fill this vacancy on the board of commissioners as the original act and the amendment thereof direct and require.
The defendants J. N. Collins, judge of probate of Fayette county, and J. T. Maddox, judge of probate of Lamar county, answer this petition, and admit the facts stated therein, and say they declined and still decline to appoint a drainage commissioner to fill this vacancy for the Fayette and Lamar Counties drainage district No. 2, because the act (Gen. Acts 1915, p. 167, amended by Gen. Acts 1923, p. 514) is void, as it violates sections 222, 23, and 45 of the Constitution of Alabama, and because it attempts to give *Page 296 the power of assessments to unauthorized units.
The cause was submitted to the court on petition, answer, and agreed statement of facts in writing signed by the parties; and on the hearing the court held neither the original nor the amended act is unconstitutional and void, but that both are valid acts under the police power of the state for promotion of the public health and general welfare. The court granted the petition, directed a writ of mandamus to issue ordering the judges of probate, the defendants, to proceed under the act and appoint a commissioner to fill the vacancy created by the resignation of John B. Wheeler. The defendants, the judges of probate, appeal from that judgment, and it is the error assigned.
The constitutionality of this act (Gen. Acts 1915, p. 167) has been before us and was considered by this court in Harkins v. Smith, 204 Ala. 417, 85 So. 812. It was held that this act did not contravene section 222 of the Constitution, because the territory embraced in the corporation known as "the Fayette and Lamar Counties drainage district No. 1" was not a county or city or town or village or district or other political subdivision of counties as contemplated by section 222 of the Constitution. The court in the opinion did not discuss or refer to sections 23 or 212 of the Constitution of 1901. The validity of this act depends on the construction of it in the light of these two sections of the Constitution when construed together. That part of section 23 of the Constitution pertinent reads as follows:
"The right of eminent domain shall not be so construed as to allow taxation or forced subscription for the benefit of railroads or any other kind of corporations, other than municipal, or for the benefit of any individual or association."
Section 212 of the Constitution reads:
"The power to levy taxes shall not be delegated to individuals or private corporations or associations."
This act of 1915, section 1, authorizes and gives the court of probate jurisdiction and power to establish drainage district or districts. Under section 8 of the act upon the hearing of an application to establish a district the probate court may "declare the district organized as a body corporate, giving it a corporate name, * * * with power to sue and be sued, to incur debts, liabilities and obligations, to exercise the right of eminent domain * * * and the right of assessment as herein provided." The court of probate after the district is established must appoint three drainage commissioners and "such persons when so appointed, * * * shall constitute, and are hereby declared to be a body politic incorporated by the name and style * * * selected * * * by the court of probate." Section 10 of the act.
Thus it is clear and evident that this district No. 2, as established and authorized by the act, is intended to be a corporation with power to sue and be sued; contract debts under its name given it by the court as Fayette and Lamar Counties drainage district No. 2; and the act gives this corporation the power and "the right of assessment as herein provided."
The act provides for the pay of the commissioners, the board of viewers, and rodmen, and gives the probate court authority to fix the amount of compensation for the engineers. The costs, expenses, costs of construction, fees, damages assessed for construction of any ditch or canal to drain the district or other improvement, and the cost of maintaining and repairing it, will be assessed under the act against all the land in the district according to the benefit received in the manner provided by the act.
The final report shall contain a copy of the assessment roll, and be filed with the probate court, and, if on the hearing in the opinion of the court the cost of construction together with the amount of damages assessed is not greater than the benefits that will accrue to the land affected, the court shall confirm the report of the viewers. Sections 20, 21, of the act.
These assessments against the land in the district when made to and are approved by the probate court as the act directs, shall have the force and effect of a judgment as in case of state and county taxes, and shall constitute a first lien and paramount lien, second only to state and county taxes upon the lands assessed for the payment thereof. These amounts are to be collected by the tax collector of the county as state and county taxes are collected, and the tax collector is authorized to sell any land for failure to pay any such assessment thereon. Section 35 of the act.
This act delegates to this corporation, the Fayette and Lamar Counties drainage district No. 2, subject to the approval of the probate court, the right to assess the contemplated improvements in the district on the land therein, which must be approved by the court, if in its opinion the cost of construction with the amount of damages assessed is not greater than the benefits that will accrue to the land affected, and when approved is a lien superior to all others on the land, except the lien for state and county taxes.
The Fayette and Lamar Counties drainage district No. 2 was authorized and organized as a corporation under this original act of 1915, p. 176. When John B. Wheeler resigned, and when his resignation was accepted and the petition filed with the probate judges for a person to be appointed commissioner to fill the vacancy, this original act had been *Page 297 amended. The act was amended October 1, 1923 (Gen. Acts 1923, pp. 514 and 550), this commissioner resigned on February 12, 1924, so the petition to the judges to fill the vacancy filed February 26, 1924, was under the original act as amended.
The act as amended is not materially or vitally different from the original act in the parts hereinbefore mentioned. The amended act authorizes the organization by the probate court of a corporation for drainage of the land in the district; it directs and renders the land therein liable to taxation for the purpose of constructing and maintaining the improvements; the corporation is given the same rights and powers conferred on it by the original act; it requires the judge or judges of probate to appoint three commissioners, to be known as "board of drainage commissioners" of the district; and in case of vacancy it is to be filled by appointment by the judges of probate like the original act. So the validity of the original act and the act amending it are before us. Neither differs vitally from the other; the differences between them being more of form than real substance, and it is not necessary to mention them here.
Section 1 of the amended act states its purpose in part as follows:
"To provide for the assessment and collection of the costs and expenses of installing drainage systems and issuing and selling bonds therefor, and for the care and maintenance of such improvements when constructed, not in excess of the increased value of such property by reason of the special benefits derived from such improvements."
This purpose is clearly embodied in other sections thereof like in the original act. The corporation authorized and organized under the original or amended act is not a municipal corporation. The court clearly held in Harkins v. Smith,204 Ala. 417, 85 So. 812, that corporations organized under the original act were not municipal corporations. See, also, Bradley v. State, 210 Ala. 166, 97 So. 543.
These assessments on the land in this district for the improvements and drainage are not direct taxation ad valorem on the land, subject to constitutional restraint, but it is nevertheless a part of the taxing power of the state. In discussing an act conferring on a municipality the right to assess the expenses of improving sidewalks of a city against the owners of the abutting property in proportion to the amount of benefit accruing to such owner, and declaring the assessment a lien on the property this court in Mayor of Birmingham v. Klein, 89 Ala. 461, 7 So. 386, 8 L.R.A. 369, wrote:
"It is not questioned but that the power which this statute undertakes to delegate to the municipality of Birmingham is a part of the taxing power inherent in all government, and without limitations other than those expressed in the organic law."
This court in Bradley v. State, 210 Ala. 166, 97 So. 543, held the act in General Acts 1919, p. 1047, unconstitutional and void under section 23 of the Constitution, because it authorized a corporation or association to be organized for the purpose of building, improving, and maintaining public roads in a district, the cost thereof to be assessed against the land therein as a lien thereon, and the court held such a corporation or association was not a municipal corporation, and the statute conferred on it the taxing power by assessment for the cost thereof, and the Legislature could not delegate to such a corporation or association the taxing power of the state. Section 212 of the Constitution declares:
"The power to levy taxes shall not be delegated to individuals or private corporations or associations."
This court, in discussing the pertinent part of section 23 of the Constitution in Schultes v. Eberly, 82 Ala. 242, 2 So. 345, wrote:
"After modifying the declared right of eminent domain, it is provided that it 'shall not be so construed as to allow taxation or forced subscriptions for the benefit of railroads, or any other kind of corporations other than municipal, or for the benefit of any individual or association.' While it may be admitted there is confusion of ideas — confounding the power of taxation and the right of eminent domain — the proviso is significant to show an intention that taxation shall not be allowed, under any pretense, to corporations other than municipal. Waterhouse v. Board of C. D. of Cleveland Schools, 8 Heisk. 857."
This original act of 1915, p. 167, and the amendment thereof (General Acts 1923, p. 514), delegate and confer the power of taxation on corporations, which are not municipal, which is not permissible under the Constitution. Bradley v. State, 210 Ala. 166,97 So. 543, and authorities supra.
The Public Road Act of 1919, p. 1047, is similar in its nature, design, and effect to this Drainage Act. Each authorizes the formation of a corporation; one to build roads for the public welfare, and the other to drain swamps to reclaim the soil and for the health of the public. Each authorizes the corporations to make assessments for the costs thereof against the land therein. Each has conferred on the corporations organized thereunder the taxing power of the state. Neither corporation organized under either act is a municipal corporation. We have held the act of 1919, p. 1047, is unconstitutional and void. Bradley v. State, 210 Ala. 166,97 So. 543. Is the Drainage Act valid under the police power, because the corporations organized under it drain swamps and the public health is thereby benefited? It *Page 298 may be the state has authority under the police power to drain ponds and swamps for the public health and general welfare of the community — that question is not presented and we do not decide it — but the taxing power of the state cannot under the Constitution be delegated to the corporations, permitted to be organized under this original act of 1915, p. 176, or the act amending it (Gen. Acts 1923, p. 514), to secure money to dig canals to drain swamps for the public health and public welfare. The sections of the Constitution mentioned (23 and 212) forbid the delegation of the taxing power of the state under any pretense and for any purpose to corporations, associations, or individuals other than municipal corporations. Authorities supra.
The right to tax property is necessary, but it is a strong and dangerous power. The organic law, the Constitution, intrusted and reposed this dangerous right and strong power with the sovereign, the state, and declared it shall not be delegated, except to municipal corporations. Any act clearly contrary to the Constitution must be condemned by the courts. This duty is mandatory on this court of last resort. The duty rests and is placed particularly on this court in this cause, with imperative force, for the protection of property for the owner against taxation delegated by the Legislature without authority to a nonmunicipal corporation. Authorities supra.
The Drainage Act, approved March 4, 1915 (Gen. Acts 1915, p. 167), and article 40 of the act amending it, approved October 1, 1923 (Gen. Acts 1923, p. 514), are unconstitutional and void. Authorities supra.
The judgment of the circuit court granting the writ of mandamus is grounded in error. The petition for it should have been refused, the cause dismissed, and the petitioner taxed with the cost. A judgment to that effect will be entered here.
Reversed and rendered.
ANDERSON, C. J., and SAYRE, SOMERVILLE, and THOMAS, JJ., concur.
GARDNER, J., dissents.
BOULDIN, J., not sitting.
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