(dissenting). It is perfectly apparent that the majority opinion has eliminated section 4 from the act. The opinion recognizes the general rule that it is the duty of the court to give effect to every' section of the act, and to harmonize them if possible. It then proceeds to harmonize them by saying that section 6 is explanatory of section 4, and that when read together they mean that the assessment of benefits, made by the Legislature when the original act was passed and extended on the assessment books pursuant to the terms of the act, is merely a just and equitable basis for apportioning the benefits. ■ In short, it holds that the assessment of benefits originally made by the Legislature is not an assessment of benefits, but is merely a declaration of a just and equitable basis for the apportionment of benefits, and says that by this construction the conflict between the two sections vanishes. The practical effect of this construction is to give no meaning whatever to section 4. The court has no more right to eliminate section 4 than it would have to eliminate section 6 and give no meaning to it. Section 4 plainly says that the assessment books extending the assessment of benefits as made by the Legislature in the original act is approved and confirmed, the same being- found and hereby declared “to be fair, just and equitable. ’ ’
Section 6 does not purport to be explanatory of section 4 as declared in the majority opinion. In the first place, the language of section 4 is so plain that it speaks for itself. Moreover, section 6 deals with a different phase of the question. Section 6 does not refer to section 4, but provides for an additional assessment of benefits if necessary to defray the cost of the improvement, and declares that for this purpose the assessment books provide a just and equitable basis for apportioning the cost of the improvements' against the various tracts of land in the district. This is clearly shown by the concluding part of section 6, which provides for an additional assessment to defray the cost of the improvement, including necessary expenses and interest on all obligations, should the original assessment be found insufficient to pay such costs. Section 6 is therefore in direct conflict with section 4, and is contradictory to it, and the conflict renders the act void. It is our duty to construe the language according to its plain meaning. We have no more right to say that the Legislature did not intend section 4 to have any meaning than we have to say that it did not intend section 6 to have the meaning which its language clearly imports. In short, section 4 in plain terms confirms the original assessment made by the Legislature, declaring it to be fair, just and equitable.
Section 6 provides that if the original assessment is insufficient to defray the cost of the improvement, including necessary expenses and interest, an additional assessment shall be made to pay such cost and expenses, and that for this purpose the original assessment shall be considered as a just and equitable basis for apportioning the cost of the improvement. If the language in section 4 is to be given its plain and ordinary meaning, section 6 is an arbitrary assessment of benefits by the Legislature ; for it is evident that if the assessment made by the original act and approved by section 4 is just and equitable, no additional assessment of benefits can be made. Neither the Legislature nor any other body or tribunal can make an arbitrary assessment of benefits. Bush v. Delta Road Imp. Dist., 141 Ark. 247.
Mr. Justice Smith; concurs in this dissent.OPINION ON MOTION TO MODIFY.
McCulloch, C. J.A modification of the opinion in this case is asked for by appellee on the ground that our construction of the statute was erroneous in holding that the assessments were fixed by the Legislature at one hundred and fifty per cent, of the actual cost of construction, exclusive of interest on bonds and other expenses, and also in holding that the total levy of assessments can not exceed the maximum benefits thus determined.
Counsel for appellee bring to our attention section 5 of the statute, which reads as follows:
“Section 5. The amount of interest which will accrue on bonds issued by any of said districts shall be in-eluded and added to the tax to be collected for such district, but the interest to accrue on account of the issuing of said bonds shall not be construed as a part of the cost of construction in determining whether or not the expense and costs of making said improvements are or are not equal to or in excess of the benefits assessed. The landowners shall have thirty days after the passage of this act in which to pay their assessment in full, but all said assessments shall be made payable in installments so that not more than twenty per cent, thereof shall be collectable in any one year against the wishes of the landowners, and in the event that any landowner avails himself of this indulgence the assessed benefits shall bear interest at the rate of six per cent, per annum and shall be payable only in installments as levied. The levy of assessments may. be made by way of proportional amounts of the total assessed benefits and the interest need not be calculated until it is necessary to do so to avoid exceeding the total amount of benefits and interest, or the interest may first be collected, at the discretion of the board.”
We think that this section of the statute tends to strengthen rather than to weaken our position in the former opinion in holding that the legislative determination of benefits was not based on the total cost of the project, including interest and other expenses. Section 5 draws the distinction between interest on bonds and other expenses to be incurred, and expressly declares that such interest shall be deemed to be a part of the cost of construction. This section shows that the Legislature must have used advisedly the term “costs of construction of the road” in section 6 and that the interest on bonds and other expenses were not treated as a part of the cost of construction. Section 5 goes further and declares that interest on bonds shall not be construed to be a part of the costs of construction in determining whether or not such costs shall exceed the benefits.
It is not within the power of the Legislature to authorize assessments in excess of the estimated benefits, even for the purpose of paying interest on bonds (Fitzgerald v. Walker, 55 Ark. 148, Oliver v. Whittaker, 122 Ark. 291), but the Legislature can authorize the charge of interest on postponed assessments and such interest on assessments is not to be treated as a part of the cost of improvement, but may be imposed in addition to the assessed benefits. Oliver v. Whittaker, supra; Pfeiffer v. Bertig, 141 Ark. 531.
We adhere therefore to the conclusion announced in the original opinion and the motion to modify will be overruled.