The Red Banks Creek Drainage District was organized in 1926 under the statutes mentioned in the majority opinion herein. Soon thereafter the landowners in the district were assessed with total benefits amounting to the sum of $93,516.75. The appellant, George M. Buchanan, then owned, and still owns, 360 acres of land in the district, and 312 acres thereof were then designated "overflowed lands", and the assessment of benefits originally made against his lands was the sum of $9,360, being approximately one-tenth of the total benefits assessed on all of the lands of the district. He had paid approximately 82 1/2% of these assessed benefits under annual tax levies made to pay the cost of the drainage canal, approximately 11 miles in length, which passes through his lands that are located near the head of such canal.
Beginning at a distance of approximately 4 1/2 miles below the appellant's land, the original canal has been completely filled up and obliterated from that point to its original terminus, but the lands of the said appellant are well drained by the upper and remaining portion of the canal and none of them are now subject to overflow.
The appellant recognizes his liability for the payment of the remainder of the $9,360 originally assessed against his lands if the payment thereof should be needed to preserve and maintain the improvements of the district, and *Page 776 also recognizes that he would be liable for any additional benefits that may be assessed on a new assessment roll against his land for such purpose, provided there should be any additional benefits to accrue to his lands under the supposed new assessment roll than those which accrued to him and were paid for under the original assessment; but of course he challenges the right of the commissioners to now assess his lands with additional benefits in the sum of $9,360, where it is shown that no additional benefits will accrue to him on account thereof.
It was clearly shown on the hearing of the objection to the so-called new assessment roll when the same was submitted by the drainage commissioners to the trial court for approval that it is only a remote possibility that any additional benefit will ever accrue to the lands of the apellant by reason of the construction of the proposed diversion canal in the lower end of the district where there are no longer any improvements to be preserved and maintained. The three commissioners and the engineers of the district were frank to testify only that unless the contemplated diversion canal should be constructed in the lower end of the district from the proceeds of the $25,000 proposed bond issue for that purpose, the canal above where the new construction is to begin may fill up in a few years to where it would impede the efficient drainage of the appellant's lands, although it is conceded that there is a fall of from 40 to 60 feet from the elevation of his lands to the point of the proposed new construction.
Notwithstanding the undisputed proof on the above mentioned issue, the commissioners, whose lands are all located in the lower end, or overflowed part, of the district, assumed to go upon the lands and then report to the court their finding that additional benefits would accrue to the several tracts of lands in the district to the same extent as under the original assessment of benefits in the sum of $93,516.75, and that the appellant should be assessed for additional benefits in the same amount of *Page 777 his original assessment in the sum of $9,360. The trial court accordingly approved and confirmed this reinstatement of the original assessment roll, and found as a fact without probative evidence in that behalf that such additional benefits would accrue to this objector on a supposed new assessment roll, and as being authorized by the last paragraph of Section 4689, Code 1942, which reads as follows:
"The assessment roll (of the benefits originally assessed) so prepared and filed by the commissioners, when approved by the chancery court or chancellor in vacation, shall stand as a final assessment of benefits upon the lands of the said district and no new assessment roll shall be required unless in the opinion ofthe commissioners it becomes necessary to raise the assessment ofbenefits to such lands because of additional benefits to thelands other than these assessed, or because it becomes absolutelynecessary in order to raise funds to preserve and maintain theimprovements of the district." (Italics mine.)
In my opinion, the foregoing provision of the statute clearly means that if either of the two contingencies set forth in the italicized part thereof do exist in the opinion of the commissioners then, and in such event, a new assessment roll shall be required; and that the same shall be based upon the same considerations on which the original assessment roll was founded; that is to say, upon the proportionate benefits accruing to each respective landowner.
This being true, the action of the commissioners in the instant case in reinstating the original total benefits assessed of $93,516.75 on all of the property of the district against which to levy taxes to defray the cost of the proposed construction of the diversion canal in the sum of $25,000, does not amount to a new assessment roll as contemplated by the said statute; and neither could such an exorbitant assessment have reasonably been deemed "absolutely necessary in order to raise funds (in the sum *Page 778 of $25,000) to preserve and maintain the improvements of the district." No decision is cited in any of the briefs of counsel that would tend to sanction such an excessive assessment of benefits against the landowners, under which the commissioners would be allowed by the authority of our previous decisions in the cases of Anderson v. McKee, 182 Miss. 156, 179 So. 858, People's Bank Liquidating Corporation et al. v. Breshea Drainage District, 199 Miss. 505, 24 So.2d 784, to issue certificates of indebtedness or bonds until the amount of this additional assessment of benefits shall have been fully consumed.
It is to be assumed that if we should affirm the decree appealed from herein, the supposed new assessment roll, as approved by the chancellor, would stand as a final additional assessment of benefits upon the lands of the district to the same extent as the original assessment became final when approved by the chancellor in 1926, and that the appellee, as objector to the proposed additional assessment against his lands will be deemed to have had his day in court and to be forever bound by such additional assessment until he shall have fully paid the same, if in the opinion of the commissioners it should become necessary to make levies against such assessment until the full benefits assessed shall have been paid for the purpoe of enabling the commissioners to take such steps as they may deem necessary in order to raise funds to preserve and maintain the improvements of the district, and this without regard to whether or not the work now proposed to be done or any future undertaking would cause any additional benefits to accrue to his land.
The decree appealed from is unconditional, that is to say, it does not undertake to limit the commissioners to the collection of $25,000 against the $93,516.75 of new benefits assessed. The affirmance of this decree would authorize the commissioners under Section 4695, Code 1942, to collect the estimated cost of the proposed improvement, with not less than 10% added for unforeseen *Page 779 contingencies, and to be paid in annual installments not to exceed 10%, in any one year, of the $9,360 assessed against the lands of the appellant. Section 4696, Code 1942, would authorize the commissioners to make an annual tax levy, in an amount not exceeding the installment of assessment levied for that year; Section 4701, Code 1942, provides that if the tax levied shall prove insufficient, the board of supervisors shall make another levy, from year to year, until the improvement is completed, but not to exceed the value of the benefits assessed against the land; Section 4704, Code 1942, would authorize the commissioners to borrow money and issue bonds therefor "not exceeding in amount the total amount of benefits assessed against all the real property in the district"; Section 4712, Code 1942, would authorize the commissioners to construct ditches outside of the district to obtain a proper outlet for the drainage system, and to condemn and pay for rights of way for such purpose; and Section 4718, Code 1942, provides that all bonds and evidences of indebtedness issued by the commissioners are to be secured by a lien on all of the lands, in an amount not to exceed the amount of benefits assessed against them, and requires the commissioners to see to it that an assessment is levied annually and collected for the payment of any bonds issued, or obligations contracted for, under their authority, and the making or levying of said assessment may be enforced by a mandamus at the instance of any person interested.
In other words, even though the theory of mutual obligation and responsibility on the part of the landowners of a drainage district to see to it that each individual landowner is provided with permanently efficient drainage may appear to be plausible on its face, there is nevertheless encountered the constitutional objection that the commissioners would be without authority to fix a lien of $9,360 against the land of the appellee, and to enforce the satisfaction of such lien, or any part thereof, where no benefit is to accrue to him in return therefor. May *Page 780 he be thus deprived of his property, without violating due process of law?
In the case of People ex rel. Mann v. Allen, 330 Ill. 433,161 N.E. 867, 871, there was involved an assessment of additional benefits for an improvement in an already existing drainage district. There were objections to the assessment upon the ground (1) that there would be no additional benefits accruing to the land of the objectors; and (2) that the additional assessment would exceed the contemplated additional benefits to accrue to the district. The Illinois Court made the following announcement: "The objectors . . . were benefited by the first improvement, because the ditches were dug in such a way as to facilitate the drainage of their lands through the natural water courses to the swale at the lower end of the ditch. The present proceeding is to drain the low, wet lands, which would benefit only the landowners in the south portion of the district, and those not benefited cannot be assessed to pay for the improvement."
The precise question involved in the case now before us has never been specifically dealt with by this Court. However, the principle above announced by the Illinois Court is implicit in the clear recognition by this Court in its opinions in the cases of White et al. v. Lake Cormorant Drainage District, 130 Miss. 351, 94 So. 235; the two Gillis cases, Gillis v. Indian Creek Drainage District, 155 Miss. 160, 124 So. 262, and 160 Miss. 528,134 So. 173; Anderson v. Robins, 161 Miss. 604, 137 So. 476; Anderson v. McKee, 182 Miss. 156, 179 So. 858; and People's Bank Liquidating Corporation v. Beashea Drainage District, supra, that an assessment of additional benefits to the landowners in a drainage district are to be based upon the proportionate benefits that are to actually accrue to each particular tract of land involved on a new assessment roll. For instance, in the White case, supra, it is recognized that since the lands of certain landowners in the district did not receive any additional benefits on account of the new assessment, it was proper for the *Page 781 trial court to release such lands from the new assessment. On the first appeal of the Gillis case [155 Miss. 160, 124 So. 264], it was held that the drainage commissioners were without authority to assess especially designated lands with additional benefits and fail to make such an assessment of additional benefits "against other property receiving benefits." The two Gillis cases involved an additional assessment to preserve and maintain the improvements of the district, and the construction given by the Court to the last paragraph of Section 4689, Code 1942, here involved, is not that all of the lands in the district, without regard to the accrual of additional benefits, must be assessed; but, on the contrary, that the assessment of additional benefits must follow the finding of benefits to be conferred upon the land by the work proposed. And, in the case of Anderson v. McKee, supra [182 Miss. 156, 179 So. 859], the Court said: "It was held in the case of Anderson v. Robins, 161 Miss. 604, 137 So. 476, 478, that `the Legislature had full power, under the Constitution, to authorize drainage districts to contract debts prior to the assessment of benefits from the proposed drainage scheme to the land of the district, provided liability thereforis not imposed on the land or its owners, in excess of the benefits accruing to the land.' It follows from this that the Legislature could authorize drainage districts to contract debts subsequent to the assessment of benefits, provided liabilitytherefor is not imposed on the land or its owners in excess ofthe benefits accruing to the land." (Italics mine.)
In the case of Simmons v. Hopson's Bayou Drainage District,112 Miss. 200, 72 So. 901, 902, the drainage commissioners "made a new assessment upon the lands of the drainage district, under chapter 196, §§ 1698 and 1700, Acts of 1912, and ordered the issuance of additional bonds of the drainage district . . . for new drainage work necessary in cleaning, enlarging, and repairing the drainage system of the district, and in paying a balance due for work already done thereon." The precise contention *Page 782 made is not stated in the opinion, but the language of the Court in this decision construing the statute for assessing additional benefits for the preservation of the drainage system, and for paying a balance due for work already done, is in the following words: "As to the third assignment of error, we see no merit in whatever, as the act itself . . . expressly provides that the commissioners may do exactly what they did do — make the new assessment of the benefits to be derived by each seperate tractof land, and raise revenue therefrom according to the provisions of the law." (Italics mine.)
I don't think that the Court, by an opinion in the present suit, can fully safeguard the rights of appellant in regard to this exorbitant assessment against his lands as against future attempts to collect the additional $9,360, or a greater part thereof, for additional work or construction from time to time, without regard to benefits to accrue to him, since, under Section 4689, Code 1942, the additional assessment, in my opinion, if affirmed by us, would "stand as a final assessment of benefits upon the lands of the . . . district", and the right of the commissioners to issue certificates of indebtedness or bonds would be fixed by the several statutes hereinbefore referred to, and by the decisions of this Court in the cases of Anderson v. McKee and People's Bank Liquidating Corporation et al. v. Beashea Drainage District, supra, unless the said decisions should be overruled and unless we construe the several other statutes to have a different meaning than that which their language would indicate.
Therefore, it is my judgment that in any event it is proper to reverse the cause for a bona fide assessment of the additional benefits that may accrue to each respective tract of land, if any, and that under the present record there was no authority for the assessment of any additional benefits against the appellant since it was not shown that any additional benefits will accrue to his lands, except that there is a mere remote possibility that they would accrue at some time within the next few years, *Page 783 and it is well-settled that judgments and decrees are to be based upon reasonable probabilities and not mere remote possibilities.
Roberds, J., concurs in this opinion.