ARK.] HOPSON 21. OLIVERt 659 HOPSON v. OLIV.F.R. Opinion delivered July 4, 1027: 1. DRAINS-4LEDGR OF REVENUFS FOR 14YthEN'i • OF Bi3Nps. --13ader Acts 1907, p. 890, § 9, the pledge therein contained of the aeseSsed benefits of the drainage district constituted in effect a &age and assignment of a mortgage as collateral ,secnrity for -the payment of the bonds, and the revenues of the district must be.first applied to the payment of the bonds. DamaisusE OF REVENUE OF suanIsTRACTs.7 -,The revenue raised in snbdistricts 1 and 2 of the drainage distfict , credted by Acts 1907, • p. 890, could not be used to repair drains in other subdistriets of • the same district.
660 HOPSON V. OLIVER. [174 3. DRAINS—LIMITATION OF SPECIAL ASSESSMENTS. Under Acts 1907, p. 890, § 8, providing that the aggregate amount of special assessments in the drainage district to be paid in any one year shall not exceed 10 per cent, of the amount of benefits assessed upon the property, held that the limitation applied, not only to assessments to pay construction costs, but also to assessments to pay maintenance costs. 4. DRAINS—LIMIT OF ASSESSMENTS.—Under Acts 1907, p. 890, § 8, no repairs can be made in the drainage district thereby created after installments have been collected in an amount equal to the assessed benefits, as the amount of betterments assessed limits the amount which can be expended for any purpose. 5. MANDAMUS—COMPELLING COMMISSIONERS TO LEVY ASSESSMENTS.— One owning lands in several subdistricts of Western Clay Drainage District, created by Acts 1907, p. 890, who did not show that the assessed benefits would not be consumed in paying the drainage cost paid for by the bond issue, which was made a first lien against the betterments, nor that the relief prayed for could be obtained without exceeding the limit of benefits to be collected in any one year, was not entitled to a mandamus to compel the commissioners to make the assessments necessary to keep the constructed ditches and levees in repair. 6. DRAINS — AUTHORITY TO LEVY AS SE SSMENTS.—Although authority may be conferred upon a drainage district to maintain improvements and to levy and collect assessments for that purpose, this . ° right can be exercised only where it has been expressly conferred by statute. 7. DRAINS—ASSESSMENT AND MAINTENANCE.—Acts 1909, p. 826, § 10, amending Acts 1907, p. 890, § 8, held not to confer authority to levy a separate assessment for maintenance. Appeal from Clay Circuit Court, Western Division; W. W. Bandy, Judge ; reversed. F. G. Taylor, for appellant. Oliver +ft Oliver, for appellee. SMITH, J. The Western Clay Drainage District was created by special act No. 368 of the 1907 General Assem-My (Acts 1907, page 890). By paragraph (a) of § 8 of the act a general assessment was levied on the real property in the district "for the purpose of paying the gen-er al expenses," the same to be paid annually. The act further provided that the territory of the district might be subdivided into subdistricts to construct such ditches and laterals as would afford special benefits to the terri-
ARK.] HOPSON V. OLIVER: 661 tory in each subdistrict, to be paid for by the levy of special assessments against the lands therein. Five of such subdistricts were organized and special assessments were levied in each, and bonds were issued against these 'special assessments, and the plans of the improvement were executed by constructing the various ditches and drains. Appellee Oliver is the owner of lands in subdistricts numbered 1, 2, 3 and 5, and he filed a petition in behalf of himself and all other landowners, in which. he alleged that the commissioners of the district were not keeping the ditches cleared of all obstructions, as the act required them to do, and he prayed a writ of mandamus requiring .them to perform this duty. It was prayed that the commissioners of the district be ordered and directed to levy a special assessment upon each item of property in each subdistrict in proportion to the benefits estimated to have accrued by reason of the construction of the iinprovement for which each snbdistrict was formed. The commissioners filed an answer, in which they admitted that the act directed them to keep the ditche clear of obstructions, and that willows had grown . 4) in the ditches and sandbars had formed which obstrncted the flow of water ; but they alleged their inabiiitY clear the ditches, for • the reason that all assessments of benefits against the lands had been pledged to the payment of the bonds of the respective subdistricts, and that all the money arising from the sale of the bonds had been expended in the construction work; and that there was no 'provision in the law for the assesSment of additional benefits throughout the district or the subdistricts for the purpose of clearing out the canals. It was alleged, and • the secretary of the district tes tified, that in subdistrict No. 1 benefits had been as§essed amounting to $124,721 and bonds had been issued in the sum . of $100,000, of which $55,000 were outstanding and unpaid ; that in subdistrict No. 2 benefits amounting to $163,929 had been assessed and bonds amounting to $130,000 had been issued, of which $87,000 were OutStand,
062 ' HOPSON V'. OLIVER1 [174 ing and unpaid; that in subdistrict No. 3 benefits amounting to $52,885 had been assessed and bonds amounting to $50,000 had been issued, of which $40,000 were unpaid; that in subdistrict No. 4 benefits amonnting to $37,280 were assessed and bonds amounting to $30,000 were issued, the amonnt of bonds unpaid Mit being shown; and in subdistrict . No. 5 benefits assessed amounted to $141,- 427 and bonds in the sum of $110,000 were issued, of which $100,000 were . unpaid. It was further shown that asSessments again g t the benefits were being levied as follows : In subdistricts 1 and 2, nine per cent., and in sub-districts 3, 4 and 5, ten per cent. There was neither allegation nor proof on the part of the landowners to show what the cost of clearing out the ditches would be, nor was it alleged that the commis-7 sioners have funds available for that purpose ; on the contrary, the petitioner admits that the comMissioners are not in possession of such funds, and he explains the purpose of this proceeding to be to require that these hinds be raised by special assessments levied for' that purpose. The court granted the relief prayed, and directed that the' commissioners ascertain the amount necessary to clear the ditches, and to levy special assessments upon each item of property in each subdistrict in proportion to the benefits that have heretofore been estimated to accrue thereto by reason of the improvement for which the subdistrict was formed, in a sufficient amount and for the purpose of keeping the drains and levees in each subdistrict clean and in repair, and that the commissioners make such special assessments as frequently and at such times as shall be necessary to keep such ditches and Jevees in repair. .The district has appealed from that judgment. The first question discussed is the authority of the commissioners to keep the canals clean. Of this there appears to 'be no doubt. The original act charges the commissioners with this duty; and by § 17 of the amenda-
ARKJ Ilopsok A). OLIN TEii. 663 tory act No..278, passed. at the 1909- Session •of the 'General 'Assembly (A.cts, 1909, page' 820) the' duty is reimposed. • • -The,difficUlty 'appears •to be that the Money is"nOt aVailable for that purPose. It *is pointed 'out 'that division (1) 'of' § 9 of:the Act Of 1907 provides that "this law shall'be liberally Construed to 'give to- said assessnient list: and the general assessment • levied herein . the effect of a b'ona fide mortgage for a valuable conSideration, and .a 'first lien . upon the•said . property,-as against all-persons having any. interest . therein;" and that' the 'pledge of the assessed benefits under-the provisions of the act.for the payment of •the bonds . issued in the several subdistricts is, in . effect, in-law -a pledge and assignment of :a mortgage as collateral security for the payment . of said bonds, and that the revenues of the district are required . for this purpOse .and mu g be 'first i so applied. We think counsel is correet inhi's'construction . of the act. • . • • -Paragraph (p) of § 8 of the act 'of 1_907'reads as-follows : ." If, after .the assessment and levy 'upon the property.in any subdistriet r shall have been -made and the improvement therefor completed, or partially' completed, the -board of . ditectors of : Said dorperation 'shall be , of : opinion that the improvement made Or designed is insufficient in , size, -Width, depth, extent,. Or otherwise, •or if the-sums levied 'be instfficient .to pay the cost •of making -the draprovement, a further levy or levies may be made, in all reSpects as in:the 'case Of an original levy,;upOn the property Situate in the said subdistricts," -in .orderi-and of stifficient amount, tO make the improvement, sufficient; or to cemplete the payMent .therefor ;-13ut the aggregate amount of such special assessments to be paid in any one year shall not eXceed ten per -eentum-of the Amount of the benefits assessea UPon snchproperty. ? ' . It thus appears that there is positive inhibitien against the levy of an aggregate amount-of such special •assessments to be Paid in any 'one year in excess of .ten per centum of the ainount of benefits assessed upon said property, and that subdistricts 1 and 2 are levying nine
664 HorsorT .v. OLIVER. [174 Per . centum and sUbdistricts 3, 4 and 5 ten per centum of this • assessment. Districts 3, 4 and 5 cannot therefore increase their leyy for any purpose in any one year, and subdistricts 1 and 2 could only increase their levy one per centum, and it is not alleged or shown that this increase would suffice to perform the order of the court. • In this connectiOn it may be said that revenue which is• raised in SUbdistricts 1 and 2 could not be used for the purpose directed by the court in the other subdistricts. - Appellee insists that this limitation applies only to asSessments intended to pay construction •costs and does not apply to maintenance costs, and that the act contemplates that the canals be kept in repair, and that the costs of these repairs may, and in time probably will, amount to many times the assessed benefits, and of even many times the value of the land, and that there is. no limitation on the cost of repairs. We think, however, that the act does not confer any such authority, and we concur in appellants' construction thereof, that no repairs can be made after installments have been collected in an amount equal to the assessed benefits. In the reSolution authorizing the bond issue it was "resolved, ordered and determined" that a total special assessment "equal to the total benefits assessed be and the same is hereby levied and ordered collected from all the lands within the said subdistricts in amounts equal to the benefits assessed to each of the lands therein con-.tained." By paragraph (o) of § 8 of the act of 1907 it was provided that, after the formation of any subdistricts, the district should have power to levy special assessments upon each item of property therein in proportion to the benefits estimated to accrue- thereto by reason of the construction of tbe proposed improvement, and that the assessments may be made payable in annual installments for a period not exceeding twenty-five years, and that these assessments "shall be of sufficient amount in the aggregate to pay the whole cost of the improvement for
ARK.] HOPSON v. OLIVER. 665. the making of which the subdistrict was• formed, and for maintaining the same, and may be levied annually until. all of the expenses incurred in making of said improve,., ment shall have been paid. Sueh levy may be made once for all or for any stated period of time:" We conclude therefore that the amount• -of better-ments assessed limits the amount which can be expended for any purpose, even, that of . maintenance.. This is necessarily true as to construction costs, whiCh, :under, the express inhibition of the Constitution; , can never exceed the estimated betterments .resulting. therefrom; and, as appellee does not show that all assessed • better-ments will not be consumed in paying the construction costs paid for by the bond issue, which' was made a ,first lien against the betterments; it follows that mandamus should not have been issued. • ; In the case of Patterson v. Collison, 135 'Ark.105;-•204. S.. W. 753, -it was held that mandamus is net- a -writ 'Of, right and should not be granted against an officer, to ecim pel him to pay out , money in the 'absence of proof that• he has money in his hands • available for • the partidulat purpose. In the case of Colemaa v. Eight Mile Drainage bist. No. 2, 106 Ark. 22, 152 S. W. 1004, it was said: "It is nowhere alleged, in the complaint that the sunr of the benefits originally assessed npon the lands in the district has not been exhausted-nor that there temain's of said amount of benefits so assessed a suni • Sufficient to' pay and discharge the whole or any part of the . warrant issued to the plaintiffs by the county clerk updri • the. treasurer for the balanCe due theM under their' contracts for the construction of the public draim Such being the' case, the allegations of the coMplaint are not sufficient to show a right upon the part of-plaintiff to the relief prayed. for. A writ of mandamus will not issue unless there is: a clear legal right to same shown and no other remedY provided, nor does it issue to compel any Officer ortribu-nal to do tha.t which' the law will not compel him ta:db. without the mandate."
666 HOPSON' v. OLIvElkj [174 • It is not shown her , e what the coSt of the repair& Would be, nor that the sum of the bene4ts originally assessed . upon the lands will not be exhausted in paying the 'construction costs without making the •repairs, nor was it shown that the relief• prayed could be granted withont violating • the provisions of ' paragraph (p) of §• 8 of the act of 1907 quoted above, limiting to ten per centum per annum the amount of benefits which may be collected in any one year. . The relief prayed should have been denied, and the judgment of the court below is therefore reversed, and' the , petition dismissed. OPINION OF REHEARING. In support of the petition . .for rehearing filed by appellee it is insisted that the manifest pUrpose of the. act was,not only to authorize the construction of the:pro-posea improvement, but to maintain it, and that this can be done only by the imposition andr collection of assess-. ments in.addition to those levied.to pay the original con:. struction (2,:ost, and that the .act, creating . the aistrict .and the act aniendatory thereof conferred this power._,.,.. , There can . be . no question . that authority might be conferred upon an improvement : district to 'maintain the improvement and to lev , y and, collect assessment& for.that purpose, these, being in addition.to those levied to pay the , original . construction cost. The case of Rosselot Greene & Lawrence Drainage District, , 137 Ark. 53,_ 207. S. W. 219, expressly so decides, but' this right.can,be exercised only where it has been conferred as it was in. the special act creating the Greene & Lawrence Drainage District. The,property owner in that case, had paid the full, amount of the betterment- assessed- against his property to pay the construction costs and thereafter the commis:. sioners of the drainage district extended an additional levy against his land to pay the coSt 'of cleaning out the. ditkhes. :The imposition' : of thiS tax *as upheld, it being said that section 20 of the act creating that district pre,
ARK.] HOPSON . v. OLIA T ER. 667 .vided for the continuity Of the district, 'and that the directors might apply under that•section to. the 'county cOurts .of the two counties in which the- &Strict was!situated, for an-order levying-additional taXes to clean out the ditches. .Section 20 of that act reads as.follows : • . "Section 20. : The district shall not ceaSe • to exist . upon the completion of its drainage system, , but shall continue to exist for the purpose of preserving . the :same, of keeping the • ditcheS clear from. obstruction and of . extending, widening or deepening-the ditches from , time to time as it maybe found advantageous to the district. • "To thiS end; the directors may; from time tO time, apply to the . county *conrts • Of Greene and Lawrence • Counties for the levying of additional taxes... Upon the filing of such petitions, notices shall 'be : published by the • clerks of Greene (and Lawrence countieS for! tWo . WeekS sin ' a newSpaper published in said counties, and ally property owner seeking to :resist .such additional levy may appear at . the next regular term of the County court of the coantY in whieh his lands are sitnate and Urge his objections thereto', and either • sUch property owners or the directors •may appeal from the finding of, the .said • county .court." . We find no such. authority here. The act here .under revieW provides for a .general assessment • common to all .property in the district and for , special assessments in each of the , subdistricts, and . for those assessments only. .It is the- insistence of the property .. owner in .the instant case'that authority for 'additional assessments for :maintenance is found in' the amendatory act of 1909,:in which subdivision ,(o) cif . section 8 of•the original act was 'amended; 'This amended section reads •as f011ows : . "SeCtion 10. : That . subdivision (o) Of section eight (8) of said act be amended 'so as to read as . folloWs : After the formation of any Subdistrict under the proti-sions of this a : ct, the said corporation shall b : ave power to : leVy special asseSsmenth upon 'each item of said prop-. erty included therein, in proportion to the benefits esti-
668 HOPSON V. OLIVER. [174 mated to accrue thereto by reason of the construction of the improvement, for the making of which such subdis-trict was formed. Said special assessments may, by said -corporation, be made payable in successive annual installments, for a period not to exceed twenty-five years, and they shall be of sufficient amount in the aggregate to pay the whole cost of the improvement, for the making of which that subdistrict was formed, and for the maintaining the same, and may be levied annually until all of the .expense incurred in making of said improvements with interest, shall have been paid. Such levy may be made once for all-, or for any stated period of time. If such improvement shall be paid for by issuing 'bonds as here-inafter, provided for, the amount of such levy shall be sufficient not only to pay the principal of such bonds at maturity, but also to pay the interest thereon, and to pay all necessary expenses of keeping the drains and levees clean and in repair. And such levy may be increased or decreased by the board so as to meet the obligations and -demands of the district or to prevent the unnecessa • y accumulation of 'funds." (Page 826, Acts of 1909). This amended section does not confer authority to levy an assessment- for both the construction and maintenance, but it provides that "such levy may be made once for all or for any stated period of time," and that litis assessment may be made payable in annuid install-- mentS for a period -not exceeding twenty-five years, and that they- shall ' be of* sufficient amount in the aggregate to pay the whole cost of making the improvement and for maintaining the smile, -but this assessment is a. single assessment; and, as is stated in the original opinion, it -is•not , shown that- the revenues derived -under it are sufficient to meet the obligations of the district and pay for the maintenance cost as well; and, as the original opinion also points 'out, the revenues of the district must be first applied to the discharge of the bonds of the subdistricts as they mature.
- As We find no authority to levy a special and separate assessment for maintenance cost as existed in the case of Rosselot v. .Draiimage District, -supra, the original opinion is adhered to, and the petition for rehearing will be .overruled.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.