Buchanan v. Red Banks Creek Drainage District

*762 Alexander, J. 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 Boost Creek, and later into Pigeon Boost 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, aiid 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 in *763 spection 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. 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 addi *764 tional 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 out 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. ’ ’ 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. *765 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: 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 *766 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 *767 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 aré 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.