The only question presented in this case is one of statutory construction. It involves the construction of Chapter 195, Laws of 1912 and amendments thereto, now constituting Sections 4674 through 4755, Code of 1942. Our only problem is to determine the legislative intent.
Buchanan owns lands in the upper end of the district, some 60 feet higher than the lands in the lower end. Before the drainage district was organized, neither he nor any group of private landowners had authority in law to accumulate surface waters on his or their own land, or lands, and, by means of a ditch collect and discharge them in volume upon the land of another, without liability for damage. Illinois Central R. Co. v. Miller, 68 Miss. 760, 10 So. 61; Cresson v. Louisville N.R. Co., 166 Miss. 352,146 So. 462. Drainage systems, too, are expensive in construction and the cost of construction lies beyond the means of the average individual. So the Legislature, in order to promote agriculture, as well as the public health, enacted the law in question to promote the ditching, drainage and reclamation of wet, swampy and overflowed lands as expressed in Section 4728, Code of 1942. *Page 769
Under Sections 4683 and 4684, Code of 1942, it is provided that upon organization of a drainage district, the board of commissioners shall prepare plans for the improvement within the district, showing the location, width and depth of the ditches and such other work as embraced within the plan of improvement, and ascertain the cost thereof, and under Section 4688, Code of 1942, they are required to file this plan of improvement with the board of supervisors, accompanied by detailed maps, profiles, and specifications giving the detail and the location of each improvement to be constructed. Section 4689 provides for the assessing of benefits to accrue to each tract of land, by reason of the construction of those particular improvements, as detailed by the plan so filed by them, and none other. The assessment roll is then filed and notice published to the landowner owning lands in the district, advising them that their lands have been assessed for drainage purposes and that the Chancery Court will hear objections to said accessments on the day fixed in the said notice. The Chancery Court, or Chancellor, if the hearing be held in vacation, on the day fixed in the notice, hears the objection and enters its order either confirming said assessment, or increasing or diminishing the same, and the landowner is given 20 days within which to appeal to the Supreme Court.
The foregoing statutory proceedings have been pointed out to show that it is the construction of the particular improvements, as shown on the detailed plan of improvement filed with the board of supervisors, that is the basis for the assesment of benefits and it is all of the benefits flowing to each individual tract of land by the location and construction of those particular improvements but none other that are assessed on the assessment roll.
When this assessment roll has been approved by the Chancery Court or Chancellor in vacation, it is provided by Section 4689, Code of 1942, that the assessment roll "shall stand as a final assessment of benefits upon the lands of said district and no new assessment roll shall be *Page 770 required unles in the opinion of the commissioners it becomes necessary to raise the assessment of benefits to such lands because of additional benefits to the lands other than those assessed, or because it becomes absolutely necessary in order to raise funds to preserve and maintain the improvements of the district."
In passing let us note that since the benefits that are assessed are all of the benefits flowing from the construction of the improvements, as shown by the detailed plan on file, and the assessment is fixed by the statute as having the force and effect of a judgment, then this judgment or assessment becomes res adjudicate as to the amount of all the benefits flowing from the construction of the improvements shown by that filed plan and continues as res adjudicata upon any amount to be thereafter assessed, additionally, except in the two instances as specified in the statute: (1) the assessment may be increased by assessing additional benefits other than those assessed, that is to say, flowing from another new plan of improvement. Any benefit, flowing from the old plan and already assessed, could not be, in logic and common sense, an "additional benefit . . . other than these assessed" as required by the statute and (2) where there is no new plan of improvement upon which additional benefits other than those already assessed, are received or could be assessed, but where without any new or additional work or benefits "it becomes absolutely necessary in order to raise funds to preserve and maintain the improvements of the district," in which event the commissioners can raise the assessment by authority of the express terms of the statute.
When the notice was published and ran to the landowners, advising them under the statute that their lands had been assessed for drainage purposes and that the court would hear and determine objections to such assessments on the day fixed in the notice, the statute wrote into that notice to each landowner, as fully a part thereof as if expressly written therein, that that assessment so *Page 771 made against his lands, when approved by the court, would be used as a basis for collection of taxes and when through the levy of taxes against it through the years the amount of benefits assessed had, by the landowner, been paid to the district in the aggregate of his taxes paid, the commissioners had the power, under the express provisions of the statute, to raise the assessment of benefits against all the lands in the district equally and proportionately if it should become absolutely necessary in order to raise funds to preserve and maintain the improvements of the district.
The Legislature recognized the fact that ditches would be constructed by the district and surface water would be collected in its upper reaches and all along its route and discharged through the channel of the ditch so constructed. This collects the water in the upper reaches and brings it down in a body and with greatly accelerated flow through the lands of adjacent owners.
The Legislature also knew and recognized that these ditches from the upper lands to the lower lands, as they leveled out on their lower reaches, would have a tendency to slacken and retard the velocity of the waters traveling through these lower reaches and would have a tendency to fill up with deposits of sand and debris. If such condition should arise the landowner, on the lower reaches, whose lands had been assessed for the purpose of draining his land would find his lands thereby flooded with collected surface waters, collected in a ditch, and released upon his lands in collected quantities and with an accelerated flow, greatly to his damage, thereby enabling his neighbors, through the drainage district to do that which in private capacity they had no legal right to do and leaving him defenseless and without right to claim his damages. Such a result would convert the drainage district into the instrument of his destruction instead of the instrument of his salvation as it was designed and intended to be. So the Legislature established the drainage district as a quasi public corporation, *Page 772 giving it perpetual existence and by Section 4713, Code 1942, it was provided that "The drainage district shall not cease to exist upon the completion of its drainage system, but shall continue to exist as a body corporate, for the purpose of preserving the system of drainage and keeping the ditch clear from obstruction . . .".
It costs money to preserve the system of drainage and to keep the ditch clear from obstructions. The drainage district's revenue must come from taxes collected. It cannot levy an ad valorem tax upon the land. The levy must be made against the benefit assessed against the land. If it be the duty of the district, under the statute to perpetually preserve the system of drainage and to perpetually keep the ditch clear of obstructions, then revenue from taxes must come in perpetually with which to pay for this work, and assessments of benefits, out of which such taxes can be collected, must be perpetually maintained, even in districts where no improvements are constructed except those in which there is only the original plan and no other benefits ever accrue except those originally assessed.
The drainage act is a whole and united scheme that is visioned to run from organization in perpetuity. It contemplates not only the construction of the improvements but it equally contemplates their maintenance in perpetuity. Appellant Buchanan would fondly embrace that part of the act that provides for the original construction of the improvements but wholly reject that part that provides for maintenance through perpetuity. He cannot do this. He must take the act as a whole. He has had his day in court on the organization of the district. Through the assessment of benefits against his lands, those lands are tied in and subject to all of the terms of the drainage law. If he is unwilling to be bound by the terms of the drainage covenant his remedy is to sell his lands and move elsewhere.
There is no new construction work contemplated under the proposed bond issue. It is the same work detailed in *Page 773 the original plan of improvement on which the original assessment of benefits was made. The canal along its lower reaches filled up with logs and debris. It would be much more expensive to go into the old channel of this ditch, now filled with logs and dirt, excavate the dirt from around the logs and then excavate the logs than it would be to dig another channel in good dirt right along beside it. This is not a change of plan, it is merely an adjustment to a construction difficulty and authorized by the drainage act. There is no new plan for new work for which an additional benefit could be assessed. This is the same ditch called for in the original plan of improvement and the benefits flowing from the construction of which have already been assessed by the original assessment of benefits. No additional benefits will flow from the construction of this ditch, which is dug for the purpose of maintaining the original ditch as planned, and hence none can constitutionally be assessed against the lands through which it runs. These benefits flowing from the construction of this ditch have already been assessed and are the same identical benefits already assessed against these lands in the original assessment.
What is contemplated here is exclusively the maintenance and preservation of the improvements in the district. The benefits flowing from the original construction of that improvement were originally assessed at $93,510.75. The drainage law provides for the maintenance and preservation of those improvements by each landowner in proportion to the benefit received by him by a tax against the benefits assessed against his lands. For purposes of maintenance taxes this proportionn must be maintained. Here the commissioners filed a new assessment roll, for maintenance purposes, finding it absolutely necessary so to do in order to raise funds to preserve and maintain the improvements of the district, as fully authorized by Section 4689, Code of 1942. They preserved the original liability of each land owner in proportion to the benefit assessed against his lands, by assessing *Page 774 each tract of land in the same identical amount as assessed on the original roll and this was approved by the Chancellor after notice to the landowners, as provided in cases of original assessment. How else could a new assessment roll be made, more accurately preserving the original proportionate liability of each tract of land for maintenance and preservation of the improvements. But it is said it was not necessary to raise the benefits $93,516.75 in order to support the proposed bond issue of $25,000 to clean out the canal. This is true, but it was absolutely necessary to raise the benefits in order to provide funds for preserving and maintaining the improvements of the district. The district will not cease to exist when this maintenance work is completed but it will go on in perpetuity still charged with preserving and maintaining them. If the district had undertaken to assess only a sufficient amount to pay off $25,000 plus interest plus ten percent for unforeseen contingencies, then it would have had to do so on a percentage level and the issuing of bonds would have wiped out the benefits and have left the district powerless again to do anything by way of preserving the improvements of the district until the benefits should have again been raised. Shall the district raise the benefits each year? There would be just as much reason to require them to act each month or from day to day as expenses arose and the raise in benefits became necessary. I do not so construe the act. No district could function under such a construction of the law. The act contemplates that the work of preserving the improvements shall go on when needed and the benefits shall be taxed to pay for it. If the benefits are exhausted, in the process, they shall be proportionately increased. The landowner does not pay his entire benefit in one year, he merely pays the percentage tax levied against it for that year. The law itself sufficiently safeguards the rights of the landowner by providing that this benefit, assessed against his land for purposes of maintaining the improvements of the district, shall not be *Page 775 liable to be taxed for any other purpose. The benefit, therefore, will be paid off in taxes only if, when, and to the extent each year that it is absolutely necessary for preserving the improvements in the district. This measures the right and the extent of the right of the commissioners in levying the annual tax. Any abuse of that right will be restrained by the courts.
In my humble opinion the decree of the lower court was manifestly correct and should be affirmed.