Clark v. Pearman

-Anderson, J., delivered the opinion of the court. This is a "bill filed by the appellant in the chancery court of the Second district of Bolivar county against the appellees, as commissioners of the Lead Bayou drainage district of said county, seeking to enjoin the appellees from issuing and selling seventy-five thousand dollars - of additional bonds of said drainage district. The appellees answered the bill, and the cause was tried on bill, answer, agreed facts, and motion to dissolve the injunction. There was a decree in favor of the appellees holding the bonds valid and dissolving the injunction, from which appellant prosecutes this appeal. This cause arises out of the following facts: The Lead Bayou drainage district was organized under chapter 195, Laws of 1912, and amendments thereto (sections 4450 to 4483, inclusive, Hemingway’s Code). The benefits assessed' against the lands of the district amounted to three hundred fifty-four thousand, four hundred sixty-four dollars and fifty-two cents. The board of supervisors issued the twenty-year six per cent, serial bonds of the district in the sum of one hundred seventy-five thousand dollars. To pay these bonds with interest as it accrues and the ten per cent, added as provided by the statute for unforeseen contingencies, it will take the sum of three hundred thirty-nine thousand, one hundred eighty dollars. It was found, after these bonds had been issued and sold and the work of improvement in the said drainage district had progressed to some extent, that it would be necessary to raise additional funds by the sale of more bonds of said district in order to complete the project. Thereupon the board of supervisors, in accordance with the statute, provided for the issuánce of seventy-five thousand dollars of additional twenty-year six per cent, serial bonds of said district. To pay these bonds Avith accrued interest and the ten per cent, added for unforeseen contingencies, as provided by the statute, it will take the sum of one hundred fifty thousand, two hundred ninety-two dollars and seventy-two cents. [334] Therefore, to entirely liquidate both issues of bonds, including principal and interest and the ten per cent, levied for unforeseen contingencies, it will take the sum of four hundred eighty-nine thousand, four hundred seventy-two dollars and seventy-one cents, or one hundred thirty-five thousand, eight dollars and nineteen cents more than the benefits assessed against the lands of said district. The question is whether under the law the bonds of this district could be issued in an amount, including principal and interest and ten per cent, for unforeseen contingencies, in excess of the assessed benefits against the lands of the district. The following provisions' of the statutes have a bearing on this question. In section 9, chapter 195, Laws of-1912, and amendments thereto (Hemingway’s Code, section 4450), it is provided, among other things, that the board of supervisors shall enter on their minutes, which shall have the force of a judgment, an order assessing the lands of the district to pay the estimated cost of the improvement with not less than ten per cent, added for unforeseen contingencies, and that the amount assessed against each tract of land in the district- shall be such part of the estimated costs of the improvement as the assessment of benefits against such tract bears to the assessment of benefits against all the property in the district; that such assessment shall be paid annually in a sum not exceeding ten per cent, in any one year, and that any landowner who so elects may pay the whole or any part of the amount of the assessment against his land, provided this is done before the bonds of the district are issued; and that the assessment so levied shall be a lien on all of the lands of the district from the time they are made by the board of supervisors “in an amount not to exceed the total amount of the estimated benefits on all of the real property in the district.” And in section 15, chapter 195, Laws of 1912, and amendment thereto (section 4459, Hemingway’s Code), there is this provision: [335] “That for the purpose of constructing and maintaining the ditches and other improvements, provided for under this act, and for carrying out the, purposes and provisions of this act and for paying for the work incident thereto, the said hoard of commissioners shall have power to borrow money at a rate of interest not exceeding six per cent. (6 per cent.) per annum to issue its negotiable evidence of indebtedness, or serial bonds, therefor, not exceeding in amount the total amount of benefits assessed against all the real property in the district(Italic ours.) And in section 21, chapter 195, Laws of 1912 (section 1170, Hemingway’s Code), it is provided that the bonds or other evidence of indebtedness issued by the commissioners shall be secured by lien on all the lands in the district “in an amount not to exceed the amount of benefits assessed against such lands and railroads.” And section 25, chapter 195, Laws of 1912 (section 1171, Hemingway’s Code), provides as follows: “That to the payment of both principal and interest of the bonds and other-negotiable evidences of debt to be issued under the provisions of this act, the entire revenues of the district, from any and all sources and all real estate and railroads subject to taxation in the district are by this áct pledged, in an amount not to exceed the amount of betterments assessed against said lands and railroads; and the board of commissioners is hereby required to set aside annually from the first revenues collected from any source Avhatever, a sufficient amount to secure and pay the interest on said bonds and evidences of indebtedness and a sinking fund for their ultimate retirement, if a sinking-fund is provided for.” There might be some doubt about this question except for the provisions of the above section of the statute last quoted. It simply provides that- for the payment of both principal and interest of the bonds of the district as Avell as other evidences of debt issued under the statute the entire revenues of the district are pledg’d “in an amount not [336] to exceed the amount of betterments assessed against said lands and railroads. (Italics ours.) As it appears to tbe court, there is no escape from the conclusion that under this statute no indebtedness of any character can be incurred, the principal and interest of which will amount to. more than the assessed benefits of the district. The plain purpose of the legislature appears to have been to set aside and pledge alone the assessed benefits for the payment of any and all obligations of the district, including principal and interest, beyond which assessed benefits there was to be no liability whatever of either the district or the landowners thereof. It is true that in the different provisions of the statute above referred to and quoted there appear some inconsistencies, but such defects, if there be such, are for the legislature to remedy, and not the courts. Reversed and remanded.