I agree that the judgment be affirmed.
In 1912, when the assessment here attacked was made, the amendment of 1911 of section 3466 1/2 of the Political Code was in force. So far as material to this case it then read as follows:
"In all cases in which an assessment shall have been levied . . . for reclamation purposes upon the lands embraced within any reclamation district, and if the assessment upon any tract or tracts of land shall have thereafter been adjudged invalid by any court of competent jurisdiction . . . then such tract or tracts of land shall be charged in any subsequent *Page 172 assessment with such proportion of the former assessment, as the benefits derived by said land from the reclamation works for which said former assessment was levied bears to the whole amount of said former assessment; or a subsequent reassessment of such tract or tracts of land may be made separately for the purpose of charging said land with its proper proportion of the costs of reclamation."
A former assessment, referred to as the Bonbini assessment, had been adjudged invalid by this court. The appellants and others had paid the charge on their lands by that assessment. McDougald and other land owners had not paid it upon their lands. The part of the assessment of 1912, covering the charge against McDougald and others on account of their failure to pay the Bonbini assessment, was made under the authority of the section above quoted. It will be seen from its language that it requires such delinquent lands to be charged in the subsequent assessment "with such proportion of the former assessment, as the benefits derived by said land from the reclamation works for which said former assessment was levied bears to the whole amount of said former assessment," or, as stated in the clause immediately following, "with its proper proportion of the costs of reclamation."
These two clauses refer to the same thing, and were evidently intended to have the same meaning. In order to give the first clause a just operation and lawful effect and harmonize it with the second clause, it is necessary to qualify slightly the literal meaning of the phrase, "benefits derived by said land from the reclamation works for which said former assessment was levied." If these are the entire actual benefits to such land from the works, it might happen that an unfair assessment would be the result, for the actual benefit might far exceed its just share of the expense. For illustration, works costing five thousand dollars, or five dollars for each acre, might conceivably benefit the one thousand acres reclaimed thereby to the amount of twenty thousand dollars, or twenty dollars per acre. If one hundred acres which had not paid the five hundred dollars at five dollars per acre were afterward charged with the proportion which the actual benefit thereto, two thousand dollars, bore to the entire cost, five thousand dollars, it would be charged two-fifths of the entire cost, or two thousand dollars, which would be four times as much as the other lands had paid. The answer to *Page 173 this puzzle is found in the fact that, in contemplation of law in making such assessments, the actual total benefits to the property assessed are never estimated, except for the purpose of determining that such benefits will equal or exceed the cost. That being ascertained, the "benefits" are then taken as the equivalent of the total cost, and the benefits to each parcel as the equivalent of its just share of the total cost. Thus limited, in the illustration given, the total benefits would be five thousand dollars, and the benefits to the tract of one hundred acres, assuming all the lands to be benefited alike, would be five hundred dollars. The proportion of this sum to the total of the former assessment would be one-tenth, or five hundred dollars, obviously its "proper proportion of the cost of reclamation" as provided by the second clause.
This statute was the sole authority for the portion of the present assessment constituting the separate charge for the delinquency upon the Bonbini assessment. That charge, of course, must conform to the statutory standard. That standard does not provide for or allow the commissioners to take into the account any interest upon the payments by other land owners upon the Bonbini assessment. That interest is a matter wholly foreign to the assessment of 1912, and, therefore, it follows that the failure to consider such interest in making up the sum charged to lands delinquent upon the Bonbini assessment does not affect the present assessment nor render it invalid. In my opinion this effectually disposes of the objections relating to the interest allowed as a credit by section 3466 1/2, as it stood at the time of the Bonbini assessment. If the parties who paid that assessment have any remedy for the interest afterward accruing thereon, it must be sought by some other mode than by including it in a reassessment upon the delinquent lands under the section as amended in 1911.
In my opinion, none of the other objections to the assessment is tenable, but I cannot say that I agree with all of the reasoning upon which Mr. Justice Lawlor founds his conclusions thereon.