I concur in the conclusion that the court below erred in overruling the demurrer to the bill, and that the decree should be reversed, but deem it proper to state the grounds on which I place my concurrence in the reversal.
The act of 16th February, 1859, providing for the construction and repair of levees in the counties of Desha and Phillips, makes it the duty of the County Court of each of the counties named, to divide the overflowed lands therein into not less than four nor more than seven districts, (sec. 1.)
For each district the court is to appoint three resident freeholders, who are required to make out and report to the clerk of the County Court, and to be filed and kept in his office, a list of all lands in the district, subject to overflow, but no lands are to be embraced in the report which are not subject to reclamation by a general system of levees in the districts, (sec. 2.) These officers are called selecting agents, (sec. 8.)
The court is also to appoint for each district one levee inspector whose duty it is to lay off such levees as will in his judgment be needed for the protection, from overflow, of his district, to be built at a suitable distance from the river (sec. 7) and to cause to be constructed, and kept in repair, such levees, etc., (sec. 9-12.)
For the purpose of raising means to construct and repair the levees, etc., an annual tax is to be levied and collected upon the lands, in such district, that will be benefited from overflow by levees, (sec. 13,) and the County Courtis to fix the rate of tax, etc.
It is made the duty of the levee inspector for each district to assess the lands therein, which are subject to taxation for levee purposes; and to make out a correct list of his assessment, certified under oath, and return it to the clerk of the County Court; and the act declares that the “ levee inspector shall be the sole judge of what lands will be benefited by levee work, and he shall embrace in his assessment all such lands as he may deem of that description or character." (sec. 13.)
The tax so assessed is to be collected by the sheriff, and the lands are subject to sale therefor. . .
The bill alleges that the complainant is the owner of a half section of land, situated in Desha county, and embraced in the levee district numbered six; that the county court had fixed the rate of tax at two per cent, upon the value of the land, etc., and that the levee inspector had assessed complainant’s land at $20 per acre.
“ Complainant charges that her land will not be benefited or reclaimed by a general system of levees in Desha county, and especially by a system of levees in the very district in which her land is located, but if reclaimed or benefited at all by the building of levees, the drains must be built in the county of Arkansas, and not in tho county of Desha.”
Again she charges that her land will not be reclaimed by a general system of levees in the levee district in which it is located; and that the report of the selecting agent, appointed by the county court, under the second section of the act, was improper and wrong, and in violation of the clear meaning and intention of the section.
That the sheriff was proceeding to sell her land for the tax charged upon it, and she prays for an injunction, etc.
The allegations of the bill are entirely too general to entitle the complainant to the interference of a court of chancery by injunction.
The levee inspector, acting under bond, and a solemn oath to discharge his duties faithfully, residing in the district, acquainted, it must be supposed, with its topography, the sources and extent of the overflows, and capable of forming a correct judgment as to the location and magnitude of the levees necessary to protect the lands of his district from inundation, assessed and returned the complainant’s tract as land that would be benefited by the levees provided for by the statute.
The complainant, by general allegations, puts in issue the correctness of the judgment of the inspector, and disputes the truth of his return, without stating a single fact upon which she based her impeachment of the soundness of his judgment or the integrity of his assessment.
The inspector, acting in discharge of official duty, and supposed to be impartial, has said upon oath that the complainant’s land will be benefited by tbe levees contemplated by the statute; and the complainant, who is personally interested, has alleged, in general terms, that her land will not be benefited or protected by the levees, etc.; and upon the issue, thus made, she asks for an injunction.
Surely, if she is in the right, and the inspector in the wrong, she could have stated some facts to persuade the chancellor of the truth of her averment, and the error of the return of the inspector.
How did the complainant ascertain that her land would not be benefited or protected from overflow by the levees? Had the levees been laid off by the inspector, and left her land exposed to the river; or had the levees been constructed, and proven, by actual experience, ineffectual to protect her land? The allegations of the bill'do not answer.
The 13th section of the act declares, that the levee inspector shall be the sole judge of wha.t lands will be benefited by levee work, etc.
I would not sustain an interpretation of the act that would make his judgment and return final and conclusive in all cases, so as to shut out all application for relief to the courts, (McGehee vs. Mathis, 21 Ark. 51), but in view of his superior advantages to form a correct judgment, and of the confidence and discretion reposed in him by the act, I think a court of chancery should not interfere by injunction to enquire into the legality of an assessment made by him, and to restrain a sale of the land, except upon allegations of facts showing a clear and palpable mistake, or such gross abuse of his judgment and discretion as to amount to fraud in the assessment.
Believing the allegations of the bill in this case to be insufficient to warrant the interposition of a court of equity, I do not deem it necessary to go further into the question of the jurisdiction of chancéry to enjoin the sale of lands upon illegal assessments, but reserve the expression of my views op the subject for future cases.
Mr. Justice Fairchild.I agree with both of my brother judges. While I fully assent to the reasoning of the Chief Justice, and agree with him that the demuiTer to the bill ought to have been sustained, if for no other reason than the generality and insufficiency of the allegations of the bill, I also concur with Judge Compton in holding that the facts of this case do not bring it within the jurisdiction of a court of equity, and' I approve of the argument and legal deductions of his opinion.