ON REHEARING.
Opinion delivered May 23, 1907.
Hire, C. J.Appellee files a motion for the modification of the opinion, but really, asks the court to pass broadly upon some questions which it is not necessary, nor proper, to pass upon in order to determine the appeal.
One further point, however, may properly be decided as it is fairly raised, and that is as to the relief to be granted plaintiffs if the allegations of their complaint are proved.
The prayer of the complaint is as follows:
“Wherefore, the premises being seen, the plaintiffs and those who have a general and common interest with them in this suit pray that an injunction or temporary restraining order be issued restraining defendants, its agents, directors, attorneys and servants, from issuing or attempting to issue any bond or bonds or any certificate of indebtedness of any nature or kind whatever, and selling the same or attempting to sell the same that would in anywise affect the interest of these plaintiffs’ property as above stated; and -that said defendant be enjoined and restrained from letting any contract of any nature or character whatever to cut any ditch or build any levee in said drainage district above described that would in anywise whatever affect plaintiffs’ lands situated in above-named drainage district as aforesaid, and that any and all agents, attorneys, directors and persons whomsoever in the service or employ of said defendant in any capacity whatsoever [be enjoined] from doing so, together with all other general, special and proper relief.”
This is more than the allegations justify. Should the court find the allegations of the complaint true, the relief must be limited to restraining assessments and taxation upon plaintiffs’ lands to pay for the public improvement, and must not go to the extent of restraining the improvement itself and the bonding of the district as provided by the act, because the authorities quoted in the opinion show that the creation of the district (and of course its bonding) is within the legislative power; and the sole judicial question is whether this power operates so arbitrarily against plaintiffs as to amount to a confiscation of their property, to assess and tax their lands for an improvement which does not benefit them, but which injures them.