I am unable to agree with the conclusion reached in the majority opinion. The Pioneer Irrigation District includes within its boundaries a part of the city of Caldwell. When the district was organized the board made the apportionment for benefits in July, 1901, in accordance with S. L. 1899, p. 414, sec. 11, as amended by S. L. 1901, p. 194, sec, 11, now C. S., sec. 4362, against each separate tract within the district. With some minor exceptions not necessary to notice, this assessment for benefits was fixed at six dollars per acre for agricultural lands and two dollars per 25-foot lot for city property. This law provides that as soon as the cost of the works necessary for irrigation of the lands of the district is determined, the board of directors shall examine critically each tract or legal subdivision of land in the district with a view of determining the benefits which will accrue to each of such tracts or subdivisions from the construction or purchase of such irrigation and that
"The cost of such works shall be apportioned or distributed over such tracts or subdivisions of land in proportion of such benefits accruing thereto; and the amounts so apportioned or distributed to each of said tracts or subdivisions shall be and remain the basis for fixing the annual assessments levied against such tracts or subdivisions in carrying out the purpose of this act."
The Irrigation District Law has been amended or reenacted many times since its original enactment in 1895, but the above provision has been retained unchanged since it was passed in 1901 and is now a part of C. S., sec. 4362. This language is so plain that it leaves nothing to construction. Prior to the majority opinion every person owning lands within the boundaries of an irrigation district, whether acreage *Page 259 or town lots, had, under this statute, an absolute right to expect and require that the annual assessments levied against his lands for maintenance and operation be apportioned and distributed to each subdivision, upon the basis that had been fixed for benefits at the organization of the district.
In 1920, appellant board levied or pretended to levy upon respondent's lots, for the annual maintenance and operation assessment for that year, fourteen dollars for each 25-foot lot, or seven times the amount that had been fixed in 1901 as the assessment for benefits. The majority opinion holds that because the owners of these lots did not assume that the secretary, who is ex-officio assessor of the district, and board were going to flagrantly violate the plain mandatory provisions of this statute by assessing against these lots, as an annual assessment, seven times the amount fixed for benefits and appear before it as a board of correction within forty-five days after such unauthorized and unlawful action, and protest the same, they are now without a remedy.
In Colburn v. Wilson, 24 Idaho 94, 132 P. 579, it is said that the board in each year shall levy an assessment upon all of the lands in the district for the expense of maintaining and operating the property of the district; that such assessment shall be spread upon all the lands of the district and shall be proportionate to the benefits received by such lands growing out of the maintenance and operation of said works of said district; that in making such assessment, it was intended by the legislature that, in the annual assessment for maintenance and operation of the water system, all lands irrigable under it, within the district, shall be considered as a whole, and such lands must be assessed at the same rate where the benefits, that is, the water needed and received, are the same; that the statute, which specifically says that the assessments shall be spread upon all the lands of the district, necessarily excludes the idea of local assessments.
In City of Nampa v. Nampa Meridian Irr. Dist., 19 Idaho 779,115 P. 979, it is held that land owners in a city who *Page 260 have become entitled to the use of water from an irrigation system cannot be denied water for the reason that its delivery has been made more expensive or more burdensome to the company by reason of the city changing the grade of its streets, which it may do.
The annual assessments for maintenance and operation of the works by the secretary, and the action of the board sitting as a board of correction, is purely ministerial. They are not clothed with any discretionary power whatever, except to ascertain the amount necessary to be raised for the maintenance and operation of the system, and then to apportion this to all lands therein upon the basis fixed for benefits. Hence, appellant's attempt in the instant case to levy a special assessment for local improvements against respondent lot owner's property was beyond its power and void. To hold that the officers of an irrigation district have any authority to levy for the annual maintenance and operation of a system, an amount seven times greater than the amount fixed for benefits, at the creation of the district, as the majority opinion does hold, virtually repeals this provision of the statute and removes all restrictions upon the power of the board to levy assessments against lands in an irrigation district. It removes a safeguard that for nearly a quarter of a century has been retained in the law notwithstanding all the other changes that have been deemed necessary.
The cases cited in the opinion have no application to the facts of the instant case. They all relate to a tax assessed for a governmental purpose, where the collection of the same is sought to be enjoined for some irregularity in the procedure and where the law under which such tax was levied gave the aggrieved party an adequate remedy.
"Although a tax be authorized by an act of the legislature yet where the municipal authorities have disregarded and failed to comply with all the requirements of the statute, equity will enjoin a sale of the land for such a tax upon the ground that the proceedings are coram non judice and void." (High on Injunctions, 4th ed., sec. 536, p. 511; Mayor v. Grand Lodge,44 Md. 436; Morris v. Morrell, 44 Neb. 423, *Page 261 62 N.W. 865; Butler v. City of Detroit, 43 Mich. 552, 5 N.W. 1078; Cooley on Taxation, 3d ed., p. 1420.)
Before the legislature can authorize any subdivision of the state to levy a tax upon the property of a citizen, it must prescribe that the rate of taxation shall be based upon some fixed basis or valuation, which must be uniform within its class. It has, by the district irrigation law, given the board authority to levy an annual maintenance and operation tax upon all the property of its system, prescribed that the assessment for benefits shall be and remain the basis for this annual levy. Where a district fixes the rate of the annual levy at an amount much greater than the fixed basis upon which the levy is to be made, it has exceeded its authority and the tax is void. The judgment of the lower court was clearly right and should be affirmed.
(January 3, 1925.) ON REHEARING.