We have very carefully reconsidered the conclusions reached upon the former hearing of this case and will endeavor to more clearly state our views with reference to some of the questions presented upon rehearing. We are convinced that under the authority of City of Nampa v. Nampa Meridian Irr. Dist.,19 Idaho 779, 115 P. 979, the cementing of the ditch abutting upon the lands of respondent, was an assessment for maintenance and not for construction.
When the Pioneer Irrigation District was organized in 1901 under the law then in force apportionment of benefits was then made by the directors and became final upon proceedings for confirmation. Rev. Codes, sec. 2399, then provided that:
"Whenever thereafter any assessment is made either in lieu of bonds, or any annual assessment for raising the interest on bonds, or any portion of the principal, or the expenses ofmaintaining the property of the district, or any *Page 262 special assessment voted by the electors, it shall be spreadupon the lands in the same proportion as the assessment ofbenefits, and the whole amount of the assessment of benefits shall equal the amount of bonds or other obligations authorized at the election last above mentioned."
In other words, the law in force at the time of the organization of the district provided expressly that assessments for maintenance should be based upon the original assessment or apportionment of benefits. In 1911 the provision of the statute above quoted was expressly amended by striking out the provision "or the expenses of maintaining the propertyof the district." (C. S., sec. 4362.)
The act of 1911, C. S., sec. 4384, provided for an independent levy of assessments for maintenance and operation not based upon the original assessment of benefits but based upon the benefits received by the lands from the maintenance and operation of the works of the district during each year. Said act, among other things, provides that the secretary of the board of directors shall be the assessor of the district and on or before August 15th of each year shall prepare an assessment-book containing a full and accurate list and description of all the lands of the district, giving the number of acres listed to each person. The act further provides that in all districts in which an assessment is levied for the purpose of maintaining and operating the works of said district, the board of directors shall meet at the office of the district on the third Tuesday of August of each year and proceed to levy an assessment upon all of the lands of the district subject to such assessment for expenses of maintaining and operating the works of the district, and said assessment shall be proportionate to the benefits received by such lands growing out of the maintenance and operation of said works. Such assessment shall be carried out by the secretary and entered into an appropriate column on the assessment-roll immediately and shall be subject to review by the board of correction thereinafter provided for. C. S., sec. 4385, provides for the publication of the notice of meeting of the board to sit as a board of correction, in a newspaper published in each *Page 263 of the counties comprising the district, which notice is given by the secretary of the board, fixing the time for its meeting and providing that the assessment-books must remain in the office of the secretary for the inspection of all persons interested. C. S., sec. 4386, provides that upon the day specified in the notice of the meeting of the board of directors, which board is constituted a board of correction, the board shall continue in session from day to day not exceeding five days, exclusive of holidays and may make such changes in said assessment-book as may be necessary to make it conform to the facts; and it is further expressly provided that assessments levied for maintenance may be reviewed by the board of correction upon the request of any person interested. Such provisions as we have called attention to do not appear in Rev. Codes, sec. 2409. There was no provision for the purpose of reviewing or equalizing assessments for maintenance and operation. It is therefore quite clear that all assessments for all purposes were based upon the original assessment of benefits and it is equally clear that under the amendments by the 1911 law as above cited, assessments for operation and maintenance were stricken out of Rev. Codes, sec. 2399, and an entirely different and independent procedure provided for. That the legislature had the power to change the law in this respect, to our minds is unquestioned, and that it clearly intended to do so is also apparent. We are not concerned with the reasons that prompted the change. However, it may be pointed out that some lands within the district would not be benefited by the maintenance and operation of its works and therefore should not be assessed. In order to avoid this injustice the legislature may wisely have provided for assessments of benefits to be imposed only as against such lands within the district as would be benefited by the maintenance and operation of its works.
It may be suggested that the board acted wilfully and arbitrarily in that it assessed against respondent's lots abutting the concrete canal sixty per cent of the cost of cementing the same and assessed forty per cent against the remaining lands within the district. The facts alleged in the pleadings *Page 264 do not warrant this conclusion and we do not think it here for consideration. There is no fraud alleged in the pleadings, which being true, that question is not here. The point urged is that the board was without power to assess sixty per cent against the abutting lots and only forty per cent against all of the remaining lands within the district. Such assessment is not a tax, neither is it based upon a valuation of property for governmental taxation purposes. It is an assessment for local improvements and based upon benefits. It is a proceeding in rem against the property out of which no personal liability arises. The legislature had authority to clothe the board with the power to levy assessments for local improvements against all the land within the district, said levy to be made according to benefits. As was said in the case of Oregon Short Line R. R.Co. v. Pioneer Irr. Dist., 16 Idaho 578, 591, 102 P. 904, 908: "The question of benefits, however, to the lands using water and the lands not requiring water is one merely of degree, and the extent of the benefits assessed to the lands of the district is a matter committed to the jurisdiction of the board of directors of such district." And further on, at page 608 (102 P. 915), the following language is found:
"The assessment made by the board of directors is simply fixing the rate necessary and required to raise revenue required by the district as apportioned to the lands of the district, according to benefits. The principle involved in assessments for local improvements is different from that underlying general taxation. The organization of the district, in the first instance, was intended for local improvement, and the assessment levied is for the purpose of carrying out the local improvement; and we do not understand the rule to be that the general method of fixing values and making assessments against property for general tax purposes applies to levies made for local improvements"; and quoting from the opinion of the supreme court of California in the case of Turlock Irr.Dist. v. Williams, 76 Cal. 360, 18 P. 379: "Nor does it follow that the method of assessments, and their collection, adopted must be assimilated to and follow exactly *Page 265 the mode provided in the constitution for the assessment and collection of taxes for general state purposes. The nature of the assessment is one for local improvements, which, however, eventuate in the advancement of the public good, and such assessments and collections can be lawfully made. It is 'clear that those clauses of the constitution which provide that taxation shall be equal and uniform, and which prescribe the mode of assessment, and the persons by whom it shall be made, and that all property shall be taxed, have no application to assessments levied for local improvement.'"
Art. 7, sec. 5, of our constitution has no application to assessments levied for local improvements but applies only to the levy and collection of taxes for governmental purposes. In the case of Colburn v. Wilson, 24 Idaho 94, 132 P. 579, which was decided after the amendment of 1911, there is language used to the effect that the assessment for benefits for maintenance arises from the supply of the needed water and that the assessments must be spread upon all the lands of the district according to benefits, the inference being that the supply of the needed water is the exclusive benefit. If the only benefit to be considered is that arising from the supply of the needed water a different situation might be presented, but strictly speaking, that is not true. There are other benefits that may accrue, as in the instant case, the concreting of the canal abutting upon the land of respondents. The benefit accruing to all lands within the district is one of degree and not necessarily an equal benefit. The theory of the law is that the land owners of the district shall each pay according to benefits received from annual maintenance and operation and the purpose of the enactment of C. S., secs. 4384, 4385 and 4386, was to carry this into effect. As was said in theColburn-Wilson case, supra, at page 103 of 24 Ida. (132 P. 582):
"Of course the application of water necessarily implies an expenditure to pay the cost of maintenance, as it cannot be secured without some expenditure, but such expenditure might be made for maintenance and no water secured to some of the lands; but where there are lands within the district *Page 266 where water cannot be secured, such lands would not be benefited, and therefore would not be subject to annual maintenance in proportion to expenditure. In such case such lands would not be subject to annual tax for such expenditure, and it is clear from the act itself that lands which cannot receive water should not be assessed annually."
Further on in that opinion the court says:
"We are of the opinion that sec. 2407 (Rev. Codes) is clear and explicit and specially confers jurisdiction on the board to act upon its own judgment, and levy an assessment upon all the lands of the district for expenses in maintaining and operating the property of the district, and that such assessment shall be spread upon the lands of the district, and shall be proportionate to the benefits received by such lands, growing out of the maintenance and operation of the works of said district. Such jurisdiction having been conferred by the legislature upon the board in this instance, and the board, having determined and allowed the expenses of improving and maintaining the system during the year the assessment is made, and having jurisdiction to make the assessment upon all of the lands of the district, should spread the same upon all the lands of the district, and such assessments shall be proportionate to the benefits received by such lands, growing out of the maintenance and operation of said works of said district according to the judgment and discretion of said board, and no claim being made of any fraud, the determination of the board must be accepted as conclusive. (Shattuck v.Smith, 6 N.D. 56, 69 N.W. 5.)"
If in the judgment of the board the abutting land received a greater benefit by the construction of the concrete ditch than the remaining land of the district, it was within its jurisdiction to so apportion the benefits. If the board, in making the assessment involved in this case, made a mistake of judgment and assessed the abutting lots out of proportion or in excess of the benefits that would accrue, there was an adequate remedy. If it was a mere mistake of judgment the collection of the tax will not be enjoined where there is a remedy at law. To hold otherwise than indicated *Page 267 in this opinion would be to eliminate C. S., secs. 4384, 4385, and 4386. These sections provide a remedy to any land owner dissatisfied with the annual assessment for maintenance and operation and must be first resorted to.
From what has been said it follows that the judgment of the trial court must be reversed and it is so ordered. Costs to appellant.
McCarthy, C.J., and Win. E. Lee, J., concur.