I cannot concur in either of the majority opinions, and believe the views expressed are in conflict with the law as it has been frequently announced by this court and which has become a rule of property right and should not now be changed.
The original irrigation district law, Sess. Laws 1895, p. 183, provided a system for taxing the property of an irrigation district to raise revenue for all purposes for which a district was authorized to tax property in a manner very similar to that provided for raising revenue by general taxation. It was required to elect an assessor, a collector and a treasurer in addition to its board of directors. The assessor was required to assess the property according to its cash value, and the board of directors was required to sit as a board of equalization and equalize such assessments, following the requirements of art. 7, sec. 5, of the constitution, that all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax.
This law was amended by the fourth and fifth sessions, Sess. Laws 1897, p. 146, Sess. Laws 1899, p. 408, but the same general plan for taxing the property of the district was continued in force, and except for its historical value and as tending to show that there was a complete change from the system of taxing the property of an irrigation district on the basis of its cash value to the later method of assessing it according to benefits, these earlier acts are not now important. *Page 268
In Pioneer Irr. Dist. v. Bradley, 8 Idaho 310, 101 Am. St. 201, 68 P. 295, it is said that: "While the original district irrigation law provides for an assessment, by acreage, and fails to provide a means by which the benefits received may be adjudicated, the amendatory act fully provides the method and means by which such benefits may be adjudicated, and is not in conflict with the provisions of the fourteenth amendment to the constitution of the United States, which prohibits the taking of private property without due process of law under the guise of taxation or otherwise."
The amendatory act here referred to is Sess. Laws 1901, p. 191, sec. 2, which provides that the board shall "examine, critically, each tract or legal subdivision of land in said district with a view of determining the benefits which will accrue to each of such tracts or subdivisions from the construction or purchase of such irrigation works; and the cost of such work shall be apportioned or distributed over such tracts or subdivisions of land in proportion of such benefits accruing thereto; and the amount so apportioned or distributedto each of said tracts or subdivisions shall be and remain thebasis for fixing the annual assessment levied against suchtracts or subdivisions in carrying out the purpose of thisact."
The irrigation district law has since been frequently amended and sometimes completely revised to meet the changing conditions, but the foregoing provision has continued in force ever since its enactment.
Sess. Laws 1903, p. 150 et seq., purports to be a complete revision and re-enactment of the irrigation district law but continued in force the foregoing provision, and made it incumbent upon the district to obtain a judicial determination of the assessments for benefits. It requires the board to file a petition in the district court of the county in which some of the lands of the district are situate, and the apportionment for benefits and distribution of the same made by the board must be confirmed by a judgment of the court. This revision added secs. 23, 24 and 25, pp. 170, 171, which provide *Page 269 that the secretary of the board shall be the assessor of the district and prepare a book containing an accurate list of all the land of the district and a list of the persons who own, claim or have possession or control of the same, or if the owner is unknown, to so indicate; and that in September of each year, after notice has been given, the board will meet to correct assessments. It will be observed that after the plan of assessing the property of an irrigation district according to benefits was adopted in 1901 and revised in 1903, the board of directors of the district no longer sat as a board of equalization but were made a board of corrections. It seems clear from these changes in the law that the legislature intends that all of the property of an irrigation district shall, for all purposes, be assessed upon the basis of benefits, and that such benefits shall be apportioned or distributed over all the lands of the district, and that after such apportionment has been confirmed by a judgment of the district court "the amount so apportioned or distributed to each of said tracts or subdivisions shall be and remain thebasic for fixing the annual assessments levied against suchtracts or subdivisions in carrying out the purpose of this act."
There can be no reasonable doubt that the legislature intended by making this change that the assessment for benefits and its apportionment and distribution to each tract or subdivision of land within the district should be a fixed and permanent basis for all future assessments thereafter to be levied against the lands of an irrigation district. It also seems clear that the legislature, in providing a ratio of permanent valuation upon each tract or subdivision of land in the district and an apportionment of the same based solely upon benefits, intended that all assessments thereafter should be levied against each tract or subdivision upon this basis instead of being subject to an annual assessment upon an actual cash valuation as the old system had provided.
Sess. Laws 1907, p. 484, amended sec. 11 of the act of 1903, making it sec. 15C, by striking certain provisions therefrom, and added the following: "Whenever thereafter any *Page 270 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 of maintaining the property ofthe district or any special assessment voted by the electors, it shall be spread upon the lands in the same proportion as the assessment of benefits 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."
I think it must be conceded that the foregoing adds nothing to the provision already found in the section, reading, "and the amount so apportioned or distributed to each of said tracts or subdivisions shall be and remain the basis for fixing the annual assessments levied against such tracts or subdivisions in carrying out the purpose of this act." The section as thus amended became Rev. Codes, sec. 2399. Sess. Laws 1911, p. 496, amended sec. 2399 by omitting the italicized words, "or the expenses of maintaining the property of the district or any special assessment voted by the electors." The majority opinion upon rehearing appears to base its conclusion upon the change made by the omission of these words in the amendment of 1911 and upon the assumption that C. S., secs. 4384, 4385 and 4386 were first introduced into the irrigation district law by this act of 1911. As to both of these conclusions I think the court is in error. This provision omitted from the act of 1911 had been added by the act of 1907, but it is clearly redundant and surplusage, and therefore added nothing to the section with regard to fixing the basis for the annual assessments, it already providing that the amount of benefits apportioned and distributed should be and remain the basis for fixing annual assessments, hence its omission from the section as amended in 1911 could not operate to repeal the proviso of 1901, which has ever since been a part of it.
The majority opinion reviews the provisions of C. S., secs. 4384, 4385 and 4386, which provide the present method for the levy and collection of assessments against the lands of an irrigation district. The review of these provisions is followed by the statement that "It is therefore quite clear that *Page 271 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." The act of 1911 added what is now the second paragraph of C. S., sec. 4384, but except as to this all the remaining provisions referred to are secs. 23, 24 and 25, Sess. Laws 1903, pp. 170, 171, and sees. 2407, 2408 and 2409 of the Rev. Codes. Hence a conclusion based upon the assumption that these provisions of the statute were not passed until 1911 is erroneous.
Neither of the opinions expressly overrules the former decisions of this court construing the irrigation district law nor attempts to differentiate them from the case at bar. The conclusion reached is directly contrary to the rule announced in these former cases.
In City of Nampa v. Nampa etc. Irr. Dist., 19 Idaho 779,115 P. 979, this court said "that is, the assessment of benefits when once made remains fixed and continues the basis for spreading future assessments." In construing Rev. Codes, sec. 2419, which is now C. S., sec. 4407, the court says: "The assessment, under section 2419, would be charged against all the lands in the district in proportion to the original apportionment of benefits; if the directors decide to resort to tolls instead of to an assessment to meet these expenses, all the tolls in the district will necessarily be proportionally increased."
In Colburn v. Wilson, 24 Idaho 94, 132 P. 579, in construing Rev. Codes, sec. 2407, now C. S., sec. 4384, as the same was amended by Sess. Laws 1911, the court said:
"Sec. 2407 of the Rev. Codes provides for assessments to be levied for the purpose of maintaining and operating the works of said district, and requires that such assessments shall be proportionate to the benefits received by such lands growing out of the maintenance and operations of said works. In construing said section, this court should be guided by the fundamental principles which govern the interpretation of *Page 272 statutes, and the section should be interpreted in connection with all parts of the act, for the purpose of accomplishing the objects contemplated by the legislature. . . . . In other words, under sec. 2407, it was the intention of the legislature that all lands within an irrigation district available for and subject to irrigation, under the system constructed, must beconsidered as a whole, and that the assessment shall be spread upon all the lands of the district which are or may be supplied with water by such district, under said system.
"It is apparent from the creation of the district and the construction of the system and the maintenance of such system, that there can be no benefit to the land from the maintaining and operating of such irrigation system, other than the benefit arising from the supplying of the needed water. The supplying of the water is the benefit sought by the provision of the act and the whole benefit is the water supplied, and the incident of such supply of water is the expenditure.
"The benefit of the water supplied to the owners of land within the district, as provided by sec. 2407, means such benefits as contribute to promote the prosperity of the district, and add value to the property of the respective owners of the entire district, and such improvement of land in any portion of the district adds to and increases the value of the lands of the entire district as the water is applied and devoted to a beneficial use by the owners through said system. . . . .
"In making such assessment it was intended by the legislature that in the annual assessment for maintenance and operation of the water system the lands irrigable under the system within the district should be considered as a whole, and such lands must be assessed at the same rate where the benefits, that is, the water needed and received, are the same. The statute specifically says that said assessment shall be spread upon all the lands of the district. This language necessarily excludesthe idea of local assessment, — that is, any assessment which does not include all the lands in the district . . . . and the fact that such expense and assessment is largely incurred by reasons of improvement and *Page 273 maintenance of a part of the system, or, as in the present case, where there are two arms of the main canal and such expense is incurred in the improvement and maintenance of one of these two arms to a greater extent than the other, and the two arms are in no way connected or beneficial one to the other, such expenditure will not alter or change the requirement of the statute that such assessment shall be made upon all the lands within the system."
In Holland v. Avondale Irr. Dist., 30 Idaho 479, 483,166 P. 259, 261, this court, speaking through Justice Rice, said:
"Appellant further contends that he should not be required to pay the assessment of $2.50 per acre levied for the maintenance of the works for the year 1913. . . . . Special assessments are not provided for in secs. 2407 to 2409 and are therefore to be levied and collected in conformity to the procedure for levying and collecting assessments for the payment of principal and interest of bonds."
In American Falls Reservoir Dist. v. Tkrall, 39 Idaho 105,123, 228 P. 236, 241, in commenting upon the amendment of Sess. Laws 1901, p. 191, sec. 2, as heretofore quoted, it is said: "This apportionment for benefits, after having been fixed by the board and such apportionment affirmed by decree of the district court, stands as the permanent assessment, and equalization of the value of each separate tract or subdivision, and the basis upon which all subsequent levies, for any purpose, must be made."
The facts that have given rise to the controversy in the cue at bar are as follows: In August, 1920, an assessment for maintenance was prepared by the secretary and directors of appellant district. On the seventeenth day of August thereafter the board estimated the expense of maintaining and operating the property of the district to be $68,440, and ordered the same spread upon all the lands of the district in the sum of $1.85 per acre for lands outside of the platted portions of the cities of Caldwell and Nampa. The board made a further finding that the cost of reconstructing in cement certain ditches in the city of Caldwell was $6,152. In addition to the special assessment they levied against 25-foot *Page 274 platted lots an additional $1.20 and $1.85 for each acre of land in blocks within Washington Heights and $1.85 per lot in Callaway addition in said city. The board then ordered that the sum of $14.22 per 25-foot lot, of which $13.02 was for the special improvement and $1.20 for the general operation and maintenance, be spread upon the assessment-roll against those lots only which fronted on said special improvement area. Three different rates were established for town lots and a fourth for agricultural land without the towns. No complaint is made by respondent as to the validity of the assessment of $1.85 for the unplatted acreage within the towns or $1.20 for each of the platted lots, this action being directed against the special assessment of $13.02 for each lot fronting on the concrete ditch.
This irrigation district was organized in 1901 and thereafter proceeded with the formality required by law to assess the property within the district according to benefits and to apportion the same as required by sec. 2 of the act of 1901, first above quoted, and fixed the assessment for benefits upon farm lands at $6 per acre and upon the town lots in question at $2 per 25-foot lot. The board appears to have followed the law for all assessments made against the property of this district prior to this time, and to have levied and collected assessments for all purposes upon the basis of the benefits as fixed by the board and confirmed by the court.
The original opinion states a correct general rule of law, that ordinarily equity will not restrain the collection of a tax where the complaining party has failed to first seek redress from the taxing authorities that levied the same. This rule has no application where the taxing authority exceeded its jurisdiction in levying the tax. (Cooley's Taxation, 4th ed., vol. 3, pp. 2406, 2412, and authorities cited under note 74.) The opinion upon rehearing appears to be based upon a different theory, for it holds that "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 *Page 275 arises." As all proceedings to levy and collect property taxes, even for governmental purposes, are proceedings in rem, it is not perceived why this being a proceeding in rem should differentiate the assessment from being a tax. It is not a tax levied for governmental purposes in the sense that state and county taxes are levied, but as said in Nampa v. Nampa Meridian Irr. Dist., 23 Idaho 422, 131 P. 8, and quoted with approval in Colburn v. Wilson, supra: "The appellant company is a quasi-public corporation, organized to conduct business for the private benefit of the owners of lands within its limits and of such a character as to concern and interest the public generally. . . . . If the city can prescribe the method in which water may be delivered through its streets, and the water user, on the other hand, has acquired a constitutional right to have water delivered to him from the canal or lateral of the district's system, then it would seem that the irrigation district is left only the one alternative, namely, to construct a pipe-line and deliver water to the consumers through such line.
"It is clear that the district must construct its necessary canals and laterals within the corporate limits of the city and pay for such construction as the law directs."
The majority opinion, upon the authority of this case, holds that the cement ditch abutting upon the lands of respondent was an assessment for maintenance, not for construction. It is also said that art. 7, sec. 5, of our constitution has no application to assessments levied for local improvements.
The assessment and apportionment for benefits as fixed by the district in 1901 is $2 for each 25-foot lot within a city and $6 per acre for agricultural lands. The assessment complained of, and which was levied under the guise of being a maintenance tax, for a single year is six and one-half times the original assessment for benefits. While the agricultural lands are favored in this particular instance, if the power exercised by the board is lawful, it may in any succeeding year levy six and one-half times the total assessment for benefits of $6 per acre upon any or all of the agricultural *Page 276 lands, or approximately $40 per acre, and the owners of such lands would be without remedy. The legislature has not given the board of directors of an irrigation district such power to tax the property of a district, and cannot do so, under the limitation of art. 7 of the constitution.
An irrigation district is a public or quasi-public corporation, not organized for governmental purposes, but to conduct the business for the private, benefit of the owners of the land within its limits, and as respects its contracts it is a municipal corporation. (American Falls Reservoir Dist. v.Thrall, supra, and authorities there cited.)
While the taxing power of an irrigation district differs in a number of respects from that of a corporation organized exclusively for governmental purposes, its power to tax the property of a district to the extent of the needs of the district is for all practical purposes the same as that given to a corporation created for governmental purposes.
A tax in the general sense of the word includes every charge upon persons or property imposed by or under the authority of the legislature for public purposes. (City of Madera v. Black,181 Cal. 306, 184 P. 397; People v. McCreery, 34 Cal. 454.) It is an enforced contribution of money or other property, assessed in accordance with some reasonable rule of apportionment by authority of a sovereign state on persons or property within its jurisdiction, for the purpose of defraying the public expenses. (26 Rawle C. L., p. 13, sec. 2.)
It is a universally accepted principle of taxation that taxes should be levied with equality and uniformity and in accordance with some reasonable system of apportionment, calculated to justly distribute the public burden. (26 Rawle C. L., p, 241, sec. 214.)
The constitutional provision that taxes shall be uniform upon the same class of subjects, while it permits taxation upon one class to be different from that of another class, the classification must be genuine and based upon a material difference and not discriminatory between subjects which properly belong to the same class. The right of classification *Page 277 is allowed in order to avoid or correct inequalities, never to create them. (26 Rawle C. L., p. 243, sec. 216.)
In Oregon Short Line R. Co. v. Pioneer Irr. Dist., 16 Idaho 578, 605, 102 P. 904, 913, it is said: "The determination of the question of benefits is not the fixing of a tax. It is merely an appraisement and a fixing of values of the lands of said district as a basis for future assessments."
Since the amendment of 1901 provides that assessments shall be according to benefits, this becomes a compact among the several land owners, within a given area when they organize the same into an irrigation district, and when the land owners within this area petition to create an irrigation district all subsequent steps taken in its organization, including the vote for its organization, the election of its officers, the proceedings to apportion benefits against the several tracts, and the confirmation of this apportionment by the district court, enter into and become a part of the agreement or compact as between themselves. They agree that their property shall be liable for all the obligations that may arise out of the creation and operation of such a district, and to none other. By operation of law the various land owners within the district agree that their lands may be assessed for the raising of revenue for all purposes upon the basis of the relative values fixed for benefits, which must be done after a critical examination of each tract or subdivision of the land by the board, and thereafter such valuation must be confirmed by the judgment of a court. This assessment for benefits is the first step required to be taken after the organization of the district.
The property owners of this district, when the same was organized in 1901, had a right to rely upon the assessment for benefits apportioned or distributed to each tract or subdivision in the district and upon it being and remaining the basis for fixing the annual assessments levied against such tracts or subdivisions in carrying out the purposes of the organization of the district, as the law then provided and as it has ever since been. The majority opinion in the instant case wholly disregards this provision of the statute, and in *Page 278 effect says that an assessment for maintenance and operation and its distribution upon the lands of the district may be made without any regard to the assessment for benefits. This disregards the solemn and binding compact between the land owners of the district as well as the basic principle of art. 7 of the constitution, that all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax. It violates the federal constitution, which prohibits a state from passing any law that impairs the obligations of a contract, and takes property without due process of law.
The judgment of the district court should be affirmed.