On. Motion for Rehearing.
We have permitted arguments on rehearing to be filed by a number of parties as amici curiae, on account of their interest in the questions involved. In addition to urging error in the decision announced in our original opinion, these arguments assert that the effect of some of the language us'ed in the opinion is to seriously impair the salability of bonds issued by districts organized under other acts than that under review, and request that it be made clear that our decision only adjudicates the invalidity of the act in question.
We endeavored to point out in our original opinion that we were only construing chapter 25 of the General Laws of the Regular Session of 1925 as applied to districts created under that act as originally passed. We reiterate that statement.
The 1927 amendment to section-19 of the act was not considered in our opinion, for *324the reason that the procedure provided in that article had been consummated wiith reference to the district in question prior to 'the amendment. Eor that reason the amendment had no bearing upon the validity of the district.
The procedure provided in section 76 of the act had not been had with reference to the district in question prior to the 1927 amendment to that article; and, while expressing the view that the amendment could not be considered in determining the validity of a previously organized district,, we were further clearly of the view that it in no way met the objections to the section as originally enacted. To this view we also adhere.
It is strenuously urged by appellants and several of, the amici curiae that, since districts organized under the 1925 act are public corporations authorized, by the Constitution, property owners are not entitled to hearing either as to benefits or boundaries under the due process of law provisions of the state and Federal Constitutions. This question has been foreclosed in this state by a number of decisions. See Dallas County Levee District No. 2 v. Looney, 109 Tex. 326, 207 S. W. 310; Texas & Pac. R. Co. v. Ward County Irrigation Dist. No. 1, 112 Tex. 593, 251 S. W. 212; Trimmier v. Carlton, 116 Tex. 572, 296 S. W. 1070. Especially do we refer to the opinion of Chief Justice Cureton in Rutledge v. State (Tex. Sup.) 7 S.W. (2d) 1071, delivered subsequently to our original opinion in this case. The 1915 Levee District Act (Acts 34th Leg. c. 146) was there under consideration. We read:
“Since the creation of districts to accomplish this purpose is thus authorized by the state Constitution, it follows that the districts to be created must be brought into existence consistent with the law of due process as declared in both the, state and Federal Constitutions. Since the districts authorized are local improvement districts, it follows that they must he created either by direct act of the Legislature, by which that body selects the territory and spreads the burden of taxation, or by some legislative agency, such as the commissioners’ court; and if by the latter method, then only after notice, hearing, and determination of benefits, and therefore of boundaries.” (Italics ours.)
In the very recent case of St. Louis & S. W. Ry. Co. v. Nattin, 48 S. Ct. 438, 72 L. Ed. -, the Supreme Court of the United States held that a road district created by the police jury of a Louisiana parish was not invalid because the statute under which it was organized failed to provide the taxpayer with proper opportunity to be heard. This decision is based upon the holding that, under the Constitution of Louisiana, the police jury, “subordinate to the state Legislature, is the governing body of the parish,” and that a district created by it under statutory authority was on a parity with districts actually created by the Legislature itself.
Whether the commissioners’ eoqrt is such a governmental body as would meet the requirements of this decision is not essential to a decision of this case. Rutledge v. State, above, clearly holds that it is not. In the 1925 act under consideration, the commissioners’ court have no power to define the boundaries of the district, a most essential feature in its creation. We have no doubt of the correctness of our holding in the original opinion to the effect that the districts provided for in this act are “within the general classification of those termed ‘local improvement districts,’ ”
In one of the arguments we are ashed in the alternative to “withdraw the decree herein filed on March 29, 1928, and reform the ’ same to declare that said act as the same was until September 5, 1927, was valid as to districts converted into water control and improvement districts under the provisions of section 143 of said act.” We fully recognize the force of the argument that the act may be valid as to districts created under prior acts and converted under section 143 of the act in question, although invalid as to districts originally created under it. The question is not before us, however, and anything we might say concerning it would be dictum. As stated in our original opinion, we express no view upon the question, since we have no jurisdiction to adjudicate it.
Our attention is also directed in some of the arguments filed to navigation districts created under chapter 5, General Laws of 1925, Regular Session, and levee districts organized under chapter 21 of the same laws. The first of these acts was declared valid in Smith v. Wilson (D. C.) 13 F.(2d) 1007, opinion by United States District Judge Hutche-son, Circuit Judge Foster, and District Judge Sheppard also sitting. It was therein held that navigation districts come within the decision of Wight v. Police Jury (C. C. A.) 264 F. 705, which is to the same effect as St. Louis & S. W. Ry. Co. v. Nattin, above. The Levee District Act above was declared valid by the Texarkanan court in Preston v. Levee District (Tex. Civ. App.) 3 S.W.(2d) 888.
There are some very marked distinctions between the powers and duties conférred upon the Commissioners’ court in creating districts Under chapters 5 and 21 of the 1925 laws and those involved in the present case, and, while it is not in our province to pass upon the validity of districts created under those acts, we see no analogy, conceding their validity in every respect, between them and the act under review. The scheme of organization is entirely different, and the powers and duties of the commissioners’ court as the organizing body are much more expanded than in the act in question. The general scheme of organization of these districts is substantially the same as that under the Levee Act of 1915, held valid in Rutledge v. State, above.
In view of strenuous insistence in the sev*325eral motions and arguments filed to tlie effect that we have given too narrow a construction to section 76 of the act, and that it should be liberally construed in favor of the act’s constitutionality as giving to the property holders the right by implication to a hearing upon boundaries, we call attention to the fact that prior acts (chapter 87, Laws of 1917, and amendments thereto) covering the same character of districts under the same constitutional amendment, and as to which the act in question was made cumulative, expressly provided for the hearings which were in our original opinion held essential to due process of law. These provisions of the prior acts were eliminated from the act in question and presumably designedly so. Under these circumstances we see no force in the argument that the Legislature intended by implication to give to the landowners the very rights which were expressly conferred in the prior acts, but omitted from the act in question. These prior acts have been held constitutional by the Supreme Court in Trim-mier v. Carlton, above, wherein, in an elaborate opinion by Chief Justice Cureton the several provisions for hearing by the property owners on the question of boundaries are pointed out. Read, in this connection, sections 16 to 19 of the 1917 act. We cannot believe that the Legislature intended these provisions to be read into the 1925 ae.t in the face of the fact that they were omitted therefrom. We note an apparent inadvertence in the opinion in Trimmier v. Carlton, to the effect that this court held that chapter 87 of the laws of 1917 was invalid. See, in this connection, our opinion in Trimmier v. Carlton, 264 S. W. 253.
The importance of a hearing upon boundaries is forcefully illustrated in the present case. The record shows that the district as delineated! in the petition embraced some 69,000 acres, whereas an estimate by engineers indicated that only from 35,000 to 40,000 acres were susceptible of irrigation from the proposed plant. The project contemplated a bond issue of $2,000,000. In the organization election campaign a resolution voted by three of the five directors of the district called attention to the powers of the directors under article 76 of the act to exclude nonirr/igable lands from the district, and pledged themselves to exclude such lands.
It is readily discernable that a project which might be feasible for a 69,000-aere district, might from the excessive burden of taxation be impractical for a district of only about half that size. In the larger district the bonded debt would be $30 an acre, and the annual tax (figured on 5 per cent, interest and 2 per cent, sinking fund) would be $2.10 -an acre, whereas in a district of 35,000 or 40,000 acres the bonded debt would be $60 or $50, and the annual tax $4.20 or $3.50 per acre, respectively.
The constitutional provision under which this act was passed places no limit upon the amount of tax burden that may be imposed upon the landowner. In this respect it is unique' in this state. The only protection afforded the individual landowner is that found in the due process of law provisions of our state and Federal Constitutions. .
When vve take into consideration the general scheme of the act whereby only a preliminary district is first created, with no pow-. er in the commissioners’ court to determine the boundaries, and no right in property owners thereafter to a hearing upon that all-important issue, we are still of the view, expressed in our original opinion, that the constitutional guaranties have not been met.
All motions for rehearing are overruled.
Overruled.