Richard v. Cypremort Drainage District

The opinion of the court was delivered by Provosty, J. The plaintiff, an owner of property within the limits ' of the defendant drainage district, enjoins said district from levying a tax and from issuing bonds. The two first grounds of injunction may be stated together. They are to -the effect that the tax which defendant has undertaken to levy, and the bonds which defendant has undertaken to issue are those provided for iti Article 281 of the 'Constitution; and that this Article not being self-operative, its provisions can be taken advantage of only by following the provisions .of Act 12 of 1900, passed to make it operative; and that defendant has not even attempted to follow the provisions of said Act. It is true that defendant has not pretended to follow the provisions of said enabling Act, but we do not think it was necessary to do so. Abt 37, under which defendant is organized, contains provisions for the holding of such an election as is required by Article 281, and the Article itself, after conferring directly the authority to levy the tax [659] and to issue the bonds, goes on to make provision on all essential points. Act 37 makes no mention of bonds, and in a certain sense, therefore, it makes no provision for holding an election to consult the taxpayers on the issuance of bonds; but Article 281 evidently contemplates that the machinery for the issuance of the bonds shall be the same as for the imposition of the tax and for the latter Act 37 docs make provision. The third ground of injunction is that the limits of the district are not fixed with sufficient certainty. The necessity for fixing with certainty and precision, the limits of a district empowered to levy a property tax especially when the tax must be voted for, needs but to be mentioned to be recognized. Unless the limits are thus fixed it is not possible to know with certainty what property is taxable and what persons may participate in the elections, and certainty on these points is as essential as on the rate of the tax, or on any other feature of the taxing scheme. The authorities cited by plaintiff are conclusive to the effect that the limits of a municipality must be fixed with certainty and precision. Dillon Mun. Corp. (4th Ed.), Sec. 182; A. & E. Ency. of L., Vol. 15, p. 1001 (1st Ed.) ; Cutting vs. Stone, 7 Vt. 471. It is not true to say that because these authorities have reference to municipalities they are not applicable. . The reason why the limits of a municipality must be fixed with certainty is that a municipality is called upon to exercise the governmental powers of taxation an<J police; and of these two powers the one most liable to abuse and most needing to be hedged in by metes and bounds, is the very one that defendant is empowered to exercise, namely, that of taxation. The authorities, therefore, apply with full force to defendant. The ordinance fixing the limits of the defendant drainage district, reads, as follows: “The said district to embrace and comprise that part of the Parish of St. Mary described as follows, to-wit: “North by a line on the south side of Bayou Teche, located on the summit of the ridge which divides the waters that flow into the Teche from those that flow back from the various small sloughs to the swamp on the South; east by a line on the east side of "Bayou Ohoupique (not YokelyJ situated on the summit of the ridge which divides the waters that flow into Bayou Ohoupique from those that flow into Bayou Yokely; south by the proposed canal itself, or, where the canal does not [660] extend, by the limit of the arable lands; west by a line on the east side of Bayou Cypremort on the summit of the ridge which divides the waters that flow into Bayou Cypremort from those that flow back through the various small sloughs to the swamp on the south. “These lines are to be drawn so as to comprise all the lands whose waters will naturally flow into the proposed canal, and no. other. The approximate location of the canal will be from a point in Bayou Chou-pique near Sabin Eodriguez’s plantation running in a westerly direction through the marsh and swamp, connecting with all the slough and drainage ditches from the high lands on the north, until what is known as the Bodin Canal on the west boundary of L. P. Patout’s property is reached. Then on some point on this canal, to be determined later on an outlet will be cut into the most feasible one of the several marsh bayous which leads to the gulf. “At the point where the canal crosses the right of way for water left open by L. P. Patout, a branch canal is proposed to be dug in a northerly direction, crossing the cypremort branch of the Southern Pacific Eailway, and extending across the public road at Arnod’s Lane, and leading into the low lands north of the road.” Under the maxim, id certwm, est quod cerium ' reddi potest, the north, the east and the west boundaries of the district may be held to be fixed with sufficient certainty by this ordinance. We have to assume that the ridges in question are continuous, and that the location of the line of their summit is a matter of mere engineering skill. But the southern boundary is fixed neither by reference to- landmarks nor by the adoption of a line such as would need only to be located by a civil engineer; it is stated that the line is “to be drawn”; and that its starting point shall be “near Sabin Eodriguez’s plantation”; and that its course shall run in a westerly direction until the canal on the west-boundary of L. P. Patout’s plantation is reached; and that the line in the parts not thus marked shall be along the limit of the arable lands. That this prescription of limits is too vague, is perfectly plain. The discretion confided to the Police Jury for the fixing of this boundary has to be exercised by the Police Jury itself, and cannot bo delegated by it to some other functionary. This is elementary. Defendant contends that plaintiff has no interest in raising this question of the indefiniteness of the boundary, because his land is admitted to be within the district. We cannot see the force of this contention. Plaintiff is not trying to exclude his property from the [661] district, but is objecting to an illegal tax. He has a direct interest. The proposed tax and the proposed bond issue, if illegal, operate as a cloud upon his title, which he has a right to remove. The fixing of this boundary will determine legally what property must share with his in the expenses of the district; it may determine also whether certain voters are inside or outside .of the district and have or not a right to participate in the elections, etc., etc. For these reasons, and probably for others, he has an interest in contesting this question. As to the fourth ground, all we need say is that a drainage district created under Act 31 of 1894 must conform to Section 3 of that Act in respect to the necessity of consulting the taxpayers when new drains are to be cut and opened. Act 12 of 1900 dispensed from that neeessitv only the districts organized under its own provisions. By its express terms, Section 16, its provisions are not to affect drainage districts not organized under itself. The prescription pleaded by defendant is inapplicable to the irregularities on the score of which the injunction is maintained. It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be set aside and that the defendant herein be enjoined and prohibited from levying the tax and issuing the bonds, provided for in the ordinance recited in the plaintiff’s petition herein, and that the said defendant pay the cost of this suit.