dissenting: This is an action to restrain the levy and collection of an assessment of fifty cents per acre on the lands of the plain*9tiff in the Mattamuskeet Drainage District for maintenance and keeping tbe proper drainage in effect, the plaintiffs contending that the commissioners have no authority to levy an assessment in excess of fifteen cents per acre.
The State Board of Education was a party to the original petition filed for the formation and organization of the district, and it joined in the petition upon certain conditions and reservations set forth in a paper filed in the proceeding.
The petition to which the plaintiffs and the State Board of Education were parties, contains the following stipulations and agreements:
“It is understood and your petitioners join in this petition with this condition attached, that the cost of this proposed improvement to the landowners in said proposed district, other than the State Board of Education, shall not exceed $100,000 for preliminary work of completing the drainage of said lake and district.
“It is understood and the petitioners herein join in this proceeding upon the express condition that after the proper drainage of the said proposed district is effected as set out in this petition or as may be adopted by the proper authorities as provided for hereunder and by the laws authorizing sanie, then the cost of maintaining and keeping the proper drainage in effect shall not exceed fifteen cents per acre for each acre included within the bounds of said district.”
Mr. S. S. Mann, who was the attorney for the petitioners, files an affidavit in this action in which, after stating the conditions above set forth, he says: “That affiant sincerely believes that much opposition to said organization was allayed by the incorporation of the. conditions and limitations above set out, and that the organization of said district would have been impossible without these conditions and limitations. Affiant believes that a sufficient number of signatures to petition would never have been obtained without the incorporation of this feature of the organization.”
Upon this petition a judgment was entered establishing the drainage district as prayed for in the petition under and in accordance with the provisions of chapter 442 of Public Laws of 1909 and chapter 509 of the Public Laws of 1909.
Thereafter, upon the final report of the viewers being filed, the State Board of Education and other petitioners excepted to the report upon the ground that the estimate of the cost for the drainage of the district exceeded “the limit set in the petition in the cause,” and these exceptions were allowed and the viewers ordered to file a supplemental report eliminating some of the canals and curtailing their estimates so as to ’bring the cost within the limit set out in the petition.
The limitation of the assessment for maintenance to fifteen cents per *10acre, as set out in the petition, has been observed until recently, when the commissioners have increased the assessment to fifty cents per acre, and this action has been taken without authority from the court, and without notice to the plaintiffs.
In my opinion, the stipulation and agreement in the petition that the cost of maintenance shall not exceed fifteen cents per acre, is contractual,, and as it is not prohibited by any provision in the drainage act, is binding upon the parties, and that this stipulation entered into all subsequent proceedings.
It is certain that this is the construction placed upon the stipulations by the court and by all the parties as otherwise the exception of the State Board of Education and other petitioners to the estimates of the cost of construction would not have been allowed.
The case of McCracken v. R. R., 168 N. C., 62, is, I think, a controlling authority. In that case an election was to be held on the question of voting bonds in aid of a railroad and it was held that an agreement between the railroad company and a trust company as to the conditions upon which the bonds were to be delivered was binding, although there was no provision in the statute, authorizing the holding of the election and the issuing of the bonds, permitting such an agreement.
The judgment organizing the district has nothing to rest on except, the-petition which contains the limitations of fifteen cents per acre, and instead of assuming that the court disregarded this important provision, it should be presumed that it acted upon it. The limitation was doubtless omitted from the judgment because the petitioners relied on'mutual good faith, and if the State Board of Education, then a party to the petition, had retained its interest in the land, instead of selling to the Southern Land Reclamation Company, the agreement of the parties would have been observed, and this controversy would not have arisen.
It is probable the increased assessment is necessary to the success of the drainage district, although this is denied by the plaintiffs; but however this may be, it furnishes no sufficient reason for disregarding an agreement which was the inducement to the plaintiffs to join in the petition.