On Rehearing.
SOMMERVILLE, J.The pleadings have been fully stated in the original opinion of the court.
The plaintiff, alleging himself to be the owner of certain described lands in St. Bernard parish, and embraced within the Bayou Terre-aux-Boeufs drainage district, alleges that said lands were assessed for taxation during the years' 1911,1912, and 1913, that he tendered to the tax collector the proper amount of taxes due thereon, and that it was refused, for the reason that he (the plaintiff) declined to pay the drainage taxes, or forced contributions, of 3 cents, 6 cents, and 16 cents, amounting to 25 cents imposed upon each acre of the lands in question, for the years mentioned. A preliminary injunction was issued, restraining the tax collector and others from proceeding with the seizure and sale of plaintiff’s property. He asks that said injunction be perpetuated, and that:
“There be judgment in favor of your petitioner and against defendant, declaring the assessments of said property for drainage taxes (or forced contributions), above referred to, to be null, void, and of no effect, and ordering the cancellation of the same.”
In his petition, plaintiff does not directly attack the formation of the Bayou Terreaux-Bceufs drainage district, or the organization of the board of commissioners for that district, or the system of drainage adopted by the board, or the amount of the forced contributions imposed by the board, except as to his property, or the election by which drainage bonds were issued by the board, or the issue of the bonds.
The defendant sets up the regularity and legality of all the preceding matters; but, as they have not been called in question, they do not form issues in the case.
Defendant admitted that plaintiff was the owner of the property in question; but it now moves to dismiss the appeal by the plaintiff on the ground that he (plaintiff) has ceased to be the owner of the land, because of a sale thereof made to the state for delinquent taxes for the year 1911, and the subsequent transfer of the title to said lands by the state to the board of commissioners of the Lake Borne levee district, said transfer having been made by the state to the board of commissioners since the appeal was filed in this court.
The motion comes too late to be considered. Besides, defendant has admitted that plaintiff was the owner of the lands; and this proceeding is to enjoin the tax collector from selling the lands for taxes for the year 1911, as well as the two succeeding years. The motion is denied.
Respondent, further answering, denied that the lands of plaintiff were outside of any levee system which the board was building, or proposed to build, for the purpose of draining the lands within the district; and it specifically denied that the lands would receive no benefit from the system of drainage provided for them; but averred that the lands are within the limits of the drain*931age district, and subject to all drainage taxes voted by the property tax payers therein. Defendants further denied that drainage taxes had been imposed upon plaintiff’s lands for the purpose of reclaiming them by artificial means, as by leveeing and pumping, as set forth in paragraph 3 of article 281 of the Constitution of 1898, as amended by Joint Resolution No. 132, of 1912, p. 164. Defendant further represented that:
It has “actively progressed with the work of drainage with the opening of natural outlets in said district, and the principal work that has been done in the drainage district has been the opening of the natural outlets in the said drainage district, notably the clearing out and dredging of Bayou Terre-aux-Bceufs, Bayou la Loutre, and the digging of additional canals to make, as far as it lies within the power of the board, a continuous and comprehensive system of drainage that would be resultant in the greatest good to the greatest number of property holders in the district.”
Defendant alleged that:
The drainage district “is composed partly of lands that are high and subject to drainage by gravitation without the necessity of leveeing and pumping, and largely of lands that are low and marshy and that are unfit for cultivation, unless subjected to reclamation by leveeing and pumping ; but that the great bulk, almost the entire, acreage of low marshy land, owes a servitude of drainage to the higher lands which are to be drained by gravitation; that in order, therefore, to create the comprehensive system of drainage necessary to take care of all the waters of the drainage district, it was essential and necessary to deepen, open, and clear the natural outlets and bayous that form the natural drains of the entire district, and to make such connections of canals with such natural outlets as would at least place natural drainage in reach of the large built of the property in the drainage district, to place it in such reach, at least, as would give every reclamation unit formed in that district an outfall in the drainage system of the district.” That the board “do not propose and do not contemplate, with the taxes herein-above referred to, to reclaim by leveeing and pumping any portion of the lands included within the limits of the Bayou Terre-aux-Boeufs drainage district, but simply propose a comprehensive scheme of general drainage that will give outlet for all the waters in Bayou Terre-aux-Boeufs drainage district. That subsequent to all these proceedings there have been created in said Bayou Terre-aux-Boeufs drainage district three subdrainage districts, which subdrainage districts are making use of the general work for general drainage inaugurated by your respondents herein, and which subdrainage districts have, by petition of two-thirds of the number of acres in the subdrainage districts affected, asked for bond issues to accomplish the reclamation of leveeing and pumping of the particular acreage within the limits of said subdrainage district, but that petitioner’s property is in no wise included in any of the subdrainage districts formed, and is in no wise affected by the taxes levied for the benefit of such particular subdrainage districts, and therefore is not concerned or interested in the development of said drainage districts or in the levy of taxes inaugurated therein.
“Your respondent avers, however, that petitioner herein had received an enormous benefit, and is receiving an enormous benefit, from the general drainage taxes levied in the Bayou Terre-aux-Boeufs drainage district, for the reason that there has been an enormous enhancement in the valuation of properties in the said district since the work of general drainage has been begun, and since the active dredging of the natural outlets of said drainage district have been inaugurated.
“Respondent further avers that petitioner’s lands have and will enhance in value as a result of the work accomplished and to be done, and will be more valuable if he does with his lands what other property owners are doing with theirs, i. e., to have them incorporated in a sub-drainage district and to have them leveed and pumped by artificial means to accomplish then-complete reclamation. * * * ”
Defendant alleges that:
The proceeds from the sale of the bonds have “been paid out for actual work done and labor performed in the construction of canals and in the opening of the natural outlets as shown in this answer, located within the limits of the said Bayou Terre-aux-Boeufs drainage district, all of which was, necessary and is necessary to accomplish a comprehensive system of drainage in said district, and to allow the successive formation of various subdrainage districts, or reclamation units, in the territory over which your respondent has jurisdiction.”
The answer -and the testimony in the record show that the lands of plaintiff are low and marshy, and covered in part by the waters of the Gulf of Mexico; and that they have not been benefited by the drainage work done by the defendant board, and, according to the answer, it is not contemplated that they will be drained of the water which appears to be standing on and over them; and that the only means for draining these lands would be for the plaintiff to put them in a subdrainage district, and levee and *933pump them, and to pay an additional tax imposed for that purpose, or method of drainage.
It is clear that plaintiff’s lands have not been drained, are not to be drained, and cannot be drained under the present system of the defendant board; and that the lands belonging to other persons in the district are being drained by natural outlets, or by gravitation, the costs of which are paid and to be paid, in part, out of the forced contributions imposed upon plaintiff’s lands, the collection of which is enjoined in this suit.
The only .benefit alleged to have been derived by plaintiff- from the drainage system adopted by defendant in the district in which his lands are located is that they have been enhanced in value with the other property in the district; and that they will be more valuable if he causes them to be incorporated in a subdrainage district, and will tax himself for the cost of having them leveed and pumped by artificial means “to accomplish their complete reclamation.” But such benefit is not a benefit to the lands, unless and until plaintiff taxes himself for the cost of leveeing and pumping them. This latter cost is not to be paid from the forced contributions sought to be collected at this time from this plaintiff, and the lands are not being benefited in any manner whatever by the drainage of other portions of the district. Plaintiff cannot be compelled to pay for the draining of other lands in the district in which his property has been illegally and arbitrarily included, and when they are not being benefited directly or indirectly by drainage. If that were done, it would be the taking of plaintiff’s property without due process of law.
Plaintiff’s lands are largely covered by water now. They are to receive more water upon them, if that is possible, through the system of drainage adopted by defendant; that is, through natural canals and outlets, which have been cleared and enlarged, and which convey the water from other lands in the district on to plaintiff’s, lands. Defendants say that the low marshy lands of plaintiff and others “owe a servitude of drainage to the higher lands which are to be drained by gravitation.” This may be true; but such a servitude does not drain plaintiff’s lands, and plaintiff cannot be compelled to pay for the exercise of that servitude on his lands by others. The lands which are drained must pay the cost of draining them. No act of the board could be more arbitrary, if drainage alone be regarded, than that of imposing a tax upon the lands of plaintiff under such circumstances.
It is clear that plaintiff’s property was included in the drainage district not in the exercise of “legal legislative discretion,” not because the system of drainage would inure to the benefit of the property, even indirectly, but with the purpose of deriving revenues so as to grant a special benefit to other lands subject to be improved by drainage, without any benefit to plaintiff or his property whatever, present or prospective.
The exaction of the taxes claimed by defendant from plaintiff is a flagrant abuse, and by reason of its arbitrary character is mere confiscation of the latter’s property, and it cannot be maintained.
In disposing of the case of Myles Salt Co. v. Board of Commissioners of Iberia & St. Mary Drainage District et al., 239 U. S. 478, 36 Sup. Ct. 204, 60 L. Ed. _, which case is similar in principle to the one under consideration, the Supreme Court of the United States say:
“It is to be remembered that a drainage district has the special purpose of the improvement of particular property, and when it is so formed to include property which is not and cannot be benefited directly or indirectly, including it only that it may pay for the benefit to other property, there is an abuse of power and an act of confiscation. Wagner v. Leser, supra. We are not dealing with motives alone, but as well with their resultant action; we are not dealing with *935disputable grounds of discretion or disputable degrees of benefit, but with, an exercise of power determined by considerations not of the improvement of plaintiff’s property, but solely of the improvement of the property of others — power, therefore, arbitrarily exerted, imposing a burden without a compensating advantage of any kind.”
[5-7] There is no doubt that the Legislature of a state may constitute drainage districts and define their boundaries, or delegate such authority to local or legislative bodies, as, in the present case, to the police juries of the parishes of the state, and that their action cannot be assailed under the fourteenth amendment, unless it is palpably arbitrary and a plain abuse. Plaintiff has not invoked the property clause of the Constitution of the United States in a direct way; but he has set up that his lands will not receive any benefit from the system of drainage being carried out by the defendant, and that under the law no acreage tax can be imposed upon his lands therefor, as they will not be specially benefited by drainage, and that the seizure and sale of his property for the drainage taxes, or forced contributions, claimed by the defendant, would cause him irreparable injury; and he asks that they be canceled, and the collection of them enjoined.
“The courts are very generally agreed that the authority to require the property specially benefited to bear the expense of local improvements is a branch of the taxing power, or included within it. * * Whether the expense of making such improvements shall be paid out of the general treasury, or be assessed upon the abutting or other property specially benefited; and, in the latter mode, whether the assessment shall be upon all property found to be benefited, or alone upon the abutters, according to frontage or according to the area of their lots — is according to the present weight of authority considered to be a question of legislative expediency.” Dillon, Mun. Corp. vol. 2 (4th Ed.) § 752.
In the case of Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443, where the property of an individual was taken for the purpose of making a street through his property, and the entire cost of opening the street, including not only the full amount paid for the strip condemned, but the costs and expenses for the condemnation proceedings, were thrown upon the abutting property of the person whose lands were condemned, there appeared to the court to be an abuse of the law, and not a valid exercise of the taxing power, and an injunction was sustained preventing the authorities from collecting that particular assessment; but it did not go so far as to prevent another special assessment of Mrs. Baker’s property for her share in the costs of the contemplated improvement.
In the case of Houck v. Little River Drainage District, 239 U. S. 254, 36 Sup. Ct. 58, 60 L. Ed. _, from the state of Missouri, the Supreme Court of the United States only recently held that the drainage tax therein imposed was legal. The right of the Legislature, unless restricted by the state Constitution, to create drainage districts directly, or to provide for their institution, and to authorize them to carry on systems of drainage, at the expense of those whose lands are to be drained, was therein recognized; and it was said that the action of the Legislature, or the body having the authority of the Legislature, could not be assailed under the fourteenth amendment, unless it is palpably arbitrary and a plain abuse.
And in the case of Wagner v. Leser, 239 U. S. 207, 36 Sup. Ct. 66, 60 L. Ed. _, also recently decided, the same court repeat:
“This court has frequently affirmed that the general taxing systems of the state are not to be presumed lacking in due process of law because of inequalities or objections, as long as arbitrary action is avoided. * * *
“We do not understand this to mean that there may not be cases of such flagrant abuse of legislative power as would warrant the intervention of a court of equity to protect the constitutional rights of landowners, because of arbitrary and wholly unwarranted legislative action. The constitutional protection against deprivation of property without due process of law would certainly be available to persons arbitrarily deprived of their private rights by such state action, whether under the guise of legislative authority or otherwise.”
*937These principles are recognized and stated in the cases of Dubose v. Levee Com’rs, 11 La. Ann. 167, and Cross v. Police Jury, 7 Rob. 121.
And in the recent case of Myles Salt Co. v. Board of Commissioners, before referred to, the Supreme Court of the United States refer to the two cases recently decided by that court in the following language:
“The ease therefore is within the limitation of the power of the state as laid down in Houck v. Little River Drainage District et al., supra, which cites Norwood v. Baker, 172 U. S. 269 [19 Sup. Ct. 187, 43 L. Ed. 443], and retains its principles. It has not the features which determined French v. Barber Asphalt Co., 181 U. S. 324 [21 Sup. Ct. 625, 45 L. Ed. 879], and the cases which have followed that caso, and Wagner v. Leser, decided coincidently with Houck v. Drainage District, and cited in the latter.”
And the court held that the inclusion, in a drainage district, of Weeks Island, the property of the plaintiff in that suit, being an island rising 175 feet or more out of the marshes and bayous surrounding it, and which could not be drained by the system of drainage inaugurated in that district, and which island needed no drainage whatever, was a usurpation by the defendant board, and an effort to take plaintiff’s property without due process of law.
It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed; and that there now be judgment in favor of the plaintiff, and against defendants, decreeing the acreage taxes or forced contributions of 25 cents per acre on plaintiff’s property described in the petition in this case,' for the years 1911, 1912, and 1913, to be null, void, and of no effect; and that the same be canceled; and that the preliminary injunction issued herein be perpetuated, in so far as said assessments and forced contributions are concerned. It is further ordered that the preliminary injunction be dissolved and set aside as to other taxes due on plaintiff’s property. Costs to be paid by defendant and appellee.
O’NIELL, J., dissents, being of the opinion the case should be remanded to the trial court. MONROE, C. J., is of the same opinion.