BUCHANAN v. RED BANKS CREEK D. DIST

Lester G. Fant, Jr., for appellant.

This is an appeal from a decree of the chancery court of Marshall County, Mississippi, overruling appellant's objections to an assessment of additional benefits made to his lands by appellee.

Appellant contends that the decree of the court confirming this assessment and overruling his objections is erroneous for the following reasons:

(1) The statute permitting the assessment of additional benefits by a drainage district requires, and has been construed by this court to require, that such an assessment be based upon benefits accruing to the land assessed.

(2) The undisputed proof in the court below shows that the assessment of additional benefits objected to was not based upon any benefits accruing to the land assessed. On the contrary, it is admitted by the commissioners to be an arbitrary increase in the original assessment, an increase of one hundred percent, made without any regard for or relation to the physical condition of the district at the time, or the benefits actually to accrue to the land assessed.

(3) The benefits additionally assessed were shown to be grossly excessive, both as to appellant's land and as to the district as a whole.

Point 1. The assessment of additional benefits by a drainage district is required under the law of this State to be based on benefits accruing to the land so assessed.

The statute upon which the district relies for authority to levy additional assessments against appellant's land is Section 4689 Miss. Code 1942, Annot., Chapter 195 of the Laws of 1912 as amended by Chapter 269 of the Laws of 1914.

The applicable part of this statute reads as follows: "The assessment roll so prepared and filed by the commissioners, when approved by the chancery court or chancellor in vacation, shall stand as a final assessment of benefits upon the lands of the said district, and no new assessment roll shall be required unless in the opinion of the commissioners it becomes necessary to raise the assessment of benefits to such lands because of additional benefits to the lands other than those assessed, or because it becomes absolutely necessary in order to raise funds to preserve and maintain the improvements of the district."

In this case the appellee relies upon the last part of the quoted provision, "or because it becomes absolutely necessary in order to raise funds to preserve and maintain the improvements of the district." The theory of the appellee, which apparently was accepted by the lower court, is that the assessment of additional benefits under this latter disjunctive clause of the statute does not require a finding of any additional benefits actually to be conferred upon the land, but requires merely a finding of necessity of the improvement.

A mere reading of the statute will disclose that such is not its purpose. It provides in the first of the two clauses for the assessment of additional benefits if "it becomes necessary to raise the assessment of benefits to such lands because of additional benefits to the lands other than these assessed". (Without in that clause having any regard for or concern with additional construction or excavation.) It would, no doubt, be conceded by the appellee that under that first clause additional benefits would have to be found and proved. The statute provides under the second of the disjunctive clauses for the assessment of additional benefits "because it becomes absolutely necessary in order to raise funds to preserve and maintain the improvements of the district." While that clause differs from the former one in the reason for the additional assessment, it does not provide any different manner of making the assessment of additional benefits. This court has held in several cases, that under either of the two clauses a subsequent assessment of benefits must be based on benefits accruing. And the statute as written and so construed by this court has been twice re-enacted by the legislature. White, et al. v. Lake Cormorant Drainage District, 130 Miss. 351, 94 So. 235, (1922); Gillis, et al. v. Indian Creek Drainage District, 155 Miss. 160, 124 So. 262, (1929); Gillis, et al. v. Indian Creek Drainage District, 160 Miss. 528, 134 So. 173, (1931); Anderson v. McKee, 182 Miss. 156, 179 So. 858; Anderson v. Robins, 161 Miss. 604, 137 So. 476.

In White v. Lake Cormorant Drainage District, supra, the court held that where on the hearing of a new assessment of benefits it was shown to the court that the lands of certain land owners in the district will not receive any additional benefit on account of such new assessments, and the decree of the court so finds, then the releasing by the court of such lands from such new assessment is not error. In this case the proceeds of the bonds sold to pay the expense of the work planned under the first assessment of benefits were exhausted before the work was completed. In order to complete the work the commissioners made a new assessment of benefits, making a horizontal raise of 50% of the first assessment of the land of the district. The petition to assess these additional benefits alleged that it was necessary to complete the work planned in order to preserve and maintain the improvements already made. Certain of the land owners objected, and upon the hearing a consent decree was entered which recited that the chancellor having heard proof diminished the assessments of certain of the objectors, diminished them so that they stood exactly as originally assessed; in other words removed any additional assessment of benefits from such lands. The decree confirmed and approved the assessment of benefits against the other lands. This decree was strenuously attacked, but on appeal the court affirmed it, saying ( 130 Miss. 371): "The consent feature of this decree with reference to the parties whose lands were released from the new assessment can be entirely eliminated and still there is left a decree reciting that, after hearing the evidence, the court found there was merit in the protest of these parties and it was just and equitable that their assessments should be reduced to the amounts at which they stood in the first assessment." Manifestly, unless there were a relation between the assessment of additional benefits and benefits actually to be conferred upon the land, the decree of the lower court in the cited case relieving certain lands from any additional assessments could not be sustained.

This construction of the latter clause of the statute is more clearly shown in the two decisions of Gillis v. Indian Creek Drainage District (supra).

The facts of these decided cases are identical with the facts of the case at bar, in that the occasion for the assessment of additional benefits was the filling and obstruction of the drainage canal with silt and sand. The sole basis for the assessment of additional benefits in these decided cases was the necessity to maintain and repair the drainage canal originally laid out. Upon the first appeal of this Gillis case ( 155 Miss. 160, 124 So. 262), the record disclosed that the commissioners had conceived, and the lower court had held, that the commissioners had the power in making the additional assessments to pick out especially designated lands lying in municipalities and railroad tracts and a few other bodies of land and make the necessary additional assessment on those lands and not "against other property receiving benefits". In line with this view, the commissioners of the Indian Creek Drainage District had selected arbitrarily certain tracts of land and levied the additional assessments against those tracts, and not against other tracts in the district. In holding that this procedure was erroneous, the court used the following language ( 155 Miss. 169), which is enlightening of the case at bar: "And it is apparently under this branch of the statute that the court below acted, but the commissioners conceived, and the court below held, that they had the power to pick out specially designated lands lying in municipalities, and railroad tracts, and a few other bodies of land and make the necessary additional assessment and not against other property receiving benefits. It is true that after developments show frequently mistakes in original estimations, and we think that when the second assessment becomes necessary, under the latter clause of the statute, the board has power to redetermine the benefits to be derived from the new work and to reapportion the amounts on the property owners of the district, but it does not have the right, under this section anywhere, to pick out certain particular tracts and assess them for the benefits accruing to it, and leave unassessed benefits to other tracts within the district."

In other words, on this appeal, the court held that the commissioners of a drainage district did not have power arbitrarily to select tracts of land which they would assess with additional benefits; that all the land of the district receiving additional benefits, must be assessed with the additional benefits so received. This decision clearly shows that it was not contemplated by the latter clause of the statute, as the court specifically says, that the assessment of additional benefits should be based wholly upon the assessment of original benefits.

As a result of this decision the cause was reversed and remanded.

Upon the second appeal of this case ( 160 Miss. 528, 134 So. 173), the record disclosed that after the remand the commissioners had taken action which purported to comply with the opinion of the court in previous decisions. All the lands of the district were placed within the binders of one roll of additional assessments and oposite each tract of farm land, under the heading of "additional benefits assessed by commissioners", there was entered the word "none". If this action had been a valid assessment of benefits, it would seem to comply with the opinion of the court on the previous appeal. But the opinion of the court upon the second appeal states: "But it is admitted throughout the record, and the chancellor so found, that no assessment was made against these lands, not because they would receive no benefits from the proposed maintenance, but because in the judgment of the commissioners they were assessed out of proportion to lands in the municipalities in the original assessment, and that the assessment was placed only on the lands located in the municipalities in an effort to correct, equalize, and adjust the inequalities in the original assessment." The court held that this was not permissible.

This decision and particularly the language of the opinion quoted above show that if the commissioners had in fact found that no benefits would be received by the farm lands in question as a result of the proposed improvements, then the roll which they prepared would have been proper. The decision of the court in the language quoted is based entirely upon the fact as found and admitted that the lands which were not assessed with additional benefits were omitted from such assessment not, as the court specifically says, because they would receive no additional benefits, but because the commissioners in doing so were attempting to equalize the original assessment.

In the first decision of the cited case the court held that all the lands in the district receiving additional benefits must be assessed with additional benefits. In the second decision the court held that where lands were omitted, even though shown on the roll from the additional assessment, where such lands would in fact receive additional benefits from the proposed work was error.

These two decisions, the appellant submits, clearly demonstrate the construction which this court placed upon the latter clause of the statute relied upon by the appellee. That construction is not that all the lands in the district, without regard to the accrual of additional benefits, must be assessed; but, on the contrary, that the assessment of additional benefits must follow the finding of benefits to be conferred upon the land by the work proposed.

In two other decisions the Supreme Court has held that the assessment of additional benefits must be based upon additional benefits accruing to the land assessed. Anderson v. Robins, 161 Miss. 604, 137 So. 476, supra; Anderson v. McKee, 182 Miss. 156, 179 So. 858, supra.

In each of these cases, a creditor, or holder of bonds of the district sought, as if in mandamus, to compel the assessment of additional benefits. In Anderson v. Robins, the proceeding was in chancery, but the court discussed the merits of the case as if it had been in mandamus. In each case it was held that mandamus would lie to compel the commissioners to meet and consider the matter, but would not lie to compel an assessment of additional benefits for the reason that such an assessment would require a finding of fact by the commissioners.

In Anderson v. McKee, the plaintiff was the holder of certain bonds of the district. These bonds were valid obligations, having been validated by an act of the legislature. The question, whether the act of the legislature made the bonds actually valid obligations was decided by the court in Anderson v. McKee, in language which is pertinent. The court said: "It was held in the case of Anderson v. Robins, 161 Miss. 604, 137 So. 476, 478, that `the legislature had full power, under the Constitution, to authorize drainage districts to contract debts prior to the assessment of benefits from the proposed drainage scheme to the land of the district, provided liability therefor is not imposed on the land, or its owners, in excess of the benefits accruing to the land.' It follows from this that the legislature could authorize drainage districts to contract debts subsequent to the assessment of benefits, provided liability therefore is not imposed on the land or its owners, in excess of the benefits accruing to the land." (Italics are the court's)

The court held that the effect of the curative statutes was to render the bonds legal obligations of the district, but that the statutes did not create a lien on the land.

The bonds in question were issued as the result of a resolution showing that the original bond issue was insufficient to pay for the improvements contemplated, or to complete the work begun. And the court said that it would assume that the proceeds of the second bond issue were used in the work of completing the drainage system of the district as originally organized.

Now, if the second bond issue were necessary, as that paragraph indicates for the completion of the system contemplated by the organization of the district, it would seem clearly to fall within the provision of the statute authorizing the assessment of additional benefits. And if the assessment of additional benefits were merely ministerial act, then it would seem clear that the holder of a valid bond would have a right in mandamus to compel the assessment of such benefit. And this under the latter clause of the statute. The court said, however: "When the drainage commissioners and the board of supervisors found in the year 1917 that the original bond issue of $14,000, plus the ten per cent, unforseen contingencies, was insufficient to complete the system of drainage contemplated in the district, and that the additional sum of $2,500 was needed for that purpose, a new assessment of benefits could have been made against the lands therein, under the authority of Chapter 195, Laws of 1912, and amendments thereto, as construed in the case of White et al v. Lake Cormorant Drainage District, 130 Miss. 351, 94 So. 235, provided the commissioners were of the opinion that the lands would receive additional benefits to those found and assessed in the first assessment thereof, and the board could have levied a tax on such additional assessment for the purpose of paying the bonds in question, but this was not done. Also, the commissioners could have been compelled by mandamus to meet and consider the question of whether the levy of additional benefits was justified, when it was found that the indebtedness incurred by the issuance of such additional bonds of $2,500 exceeded the benefits theretofore assessed. However, their judgment and discretion as to whether benefits had accrued or would accrue additional to those already assessed could not be controlled by the issuance of such a writ, as was held in the case of Anderson v. Robins, supra."

It is submitted that this case is a clear authority. Certainly if the work had not been completed the occasion for the assessment of additional benefits could fall properly under the clause ascribing the necessity as a basis for such assessment. Yet the court held that the benefits could not be assessed unless the commissioners found that benefits had accrued or would accrue additional to those already assessed. This finding by the commissioners, it is submitted, involves a matter of decision far beyond the mere arbitrary computation of figures, so as to increase the benefits already assessed by taking the original assessment roll and increasing it any given fraction which the commissioners may find adequate.

The broad proposition that the assessment of benefits must be based upon benefits actually accruing to the land whether such benefits be original benefits or additional benefits, we submit can scarcely be disputed.

Point II. The construction of the statute in question as requiring the assessment of additional benefits to be based upon benefits accruing to the land has been adopted by the legislature.

The statute in question was last amended in 1914. Chap. 269, Laws of Miss., 1914. All the cases cited above under Point I have been decided, of course, subsequent to that date. White v. Lake Cormorant Drainage District was decided in 1922. Gillis v. Indian Creek Drainage District upon its first appeal in 1929, and upon its second appeal in 1931. Anderson v. Robins was decided in 1931, and Anderson v. McKee in 1938. With this construction so placed upon the statutes, the legislature has twice re-enacted the statute without changing its terms. Once in 1930 (Section 4463, Miss. Code 1930) and once in 1942 (Section 4689, Miss. Code 1942, Annot.)

It is settled by decisions too numerous to cite in full in this brief that the re-enactment by the legislature of a statute after its construction by the Supreme Court is an adoption by the legislature of the construction placed upon the statute by the Supreme Court. Russell v. Federal Land Bank, 180 Miss. 55 (1937), 176 So. 737; Hoy v. Hoy, 93 Miss. 732, 48 So. 903.

Since the assessment of additional benefits which is the subject matter of this appeal was made after 1942, it was necessarily governed by Section 4689 of the Miss. Code of 1942 in the light of the construction placed upon that statute in the cases cited above.

Point III. The assessment of additional benefits against the lands of appellant was not based on benefits accruing to the land.

It is admitted in the record, and testified to by all witnesses without contradiction, that the upper half of the drainage district where the appellant's lands lie has an adequate canal, and has adequate drainage; that the lower part of the drainage district, where the lands of the commissioners lie, has no canal and has no drainage. It is likewise admitted, and testified to by all witnesses, that the primary motive for the improvement proposed is to relieve the land owners in the lower part of the district.

It was formally admitted in the record that the canal traversing appellant's land is approximately 100 ft. wide, approximately 13 ft. deep, and that none of his lands are subject to overflow from that canal.

The two engineers of the drainage district testified that the upper part of the district was functioning well; and gave in evidence, as grounds for the assessment of additional benefits upon the land of the appellant, not that benefits would be conferred upon his land, but that water drained from his land down to the lower part of the district. The witnesses were the witnesses for the appellee, the three drainage commissioners and the two engineers. It is submitted that their testimony shows clearly that each and every one of them recognizes a difference in fact in the condition of the lands of the appellant and in the lands of the commissioners in the lower end of the district; that they, nevertheless, assessed the lands of the appellant and the lands of the commissioners, and the other lands in the lower end of the district upon the identical basis, which was a basis without reference to the present condition, and without any reference, which they were able to state, to benefits accruing to the lands of the appellant.

The sole reason advanced by any witness in this record to support the assessment of additional benefits upon the lands of the appellant, is the speculative proposition that eventually the ditch which is now 100 ft. wide through his place, and down to the "hard pan", will fill up unless this diversion canal is cut. We concede for the sake of argument that if this had been established by the proof it would show a reason for the assessment of some benefits against the appellant's lands, but certainly not by any wide stretch of the imagination would it ever support an assessment of benefits exactly proportional to those assessed on the lands in the lower end of the district.

The proof, however, failed to show any basis whatever, or any possible basis for any conjecture about the future of this ditch as to whether it would or would not fill up on the appellant's land.

All the witnesses for the appellee testified that it was impossible to foresee when this ditch would fill up.

Even if it could be conceived that the testimony rises to the dignity of evidence tending to show that at some unknown time the main canal will fill in the upper part of the district, still even in that event there is not a syllable of testimony in the record remotely intended to explain why the commissioners would on that theory assess benefits against the appellant in the identical proposition in which the assessed benefits against lands now presently overflowed, the overflow of which is sought to be relieved by the construction in question.

Furthermore, there was no evidence given by the appellee at any time to justify the enormous sum of benefits assessed or attempted to be assessed in this proceeding. When the district was originally organized a canal eleven miles in length was excavated and the total benefits assessed were $93,516.75. Of this total original assessment approximately one-tenth, or $9,360.00, was assessed against the 360 acres of land of appellant. Now when the lower lands of the district are overflowed and it is necessary to excavate a diversion canal approximately three miles in length, as contrasted with the eleven mile length of the original canal, when the necessity for this excavation is to relieve the lower land owners of their present overflowed condition when all the lands in the upper part of the district are adequately drained by a canal that has eroded to a width of 100 feet, the commissioners for the three-mile diversion canal assessed the identical benefits they originally assessed a total of $93,516.75 against the district as a whole, and of this again they placed 10%, or $9,360.00, on the 360 acres of appellant's land. We submit that in this record this assessment cannot in any manner be sustained.

L.A. Smith, Jr. and McClure Fant, for appellee.

The appellee submits the following in answer to the contentions of appellant as set out in his introductory statement:

(1) The statute permitting the assessment of additional benefits by a drainage district has been construed by this court to authorize such additional assessment either where there are additional benefits to the land other than those ascertained and found in the first assessment, or, where it is necessary for the purpose of raising funds to preserve and maintain the improvements of the district. In the event of the assessment of additional benefits under the latter provision, the preservation of the drainage system of the district requires the assessment of all the lands of the district with their just proportion of the costs, and this was done in the present case. Moreover, the assessment of the appellant's land with additional benefits, as confirmed by the court below, is supported by evidence that such land will receive additional benefits from the proposed work.

(2) As stated above, the additional assessment of benefits was made by the commissioners under the authority of the last clause of the statute, which provides for such assessment of additional benefits when it becomes necessary to raise funds to preserve and maintain the improvements of the district. However, such assessment of additional benefits upon the lands of appellant is also supported by a preponderance of evidence in the record to the effect that such lands would receive such additional benefits from the proposed work for preservation of the improvement. It further appears in the record that the assessment of all of the lands of the district, including the lands of appellant, was fair and uniform throughout the district, and based upon the amount of acreage in each tract originally reclaimed from overflow by reason of the installation of the drainage system.

(3) The benefits additionally assessed are shown to be the fair proportion accruing to the lands of the appellant by reason of the construction, maintenance and preservation of the drainage system of the district.

Point I. The statute authorizing the assessment of additional benefits by a drainage district (Section 4689, Mississippi Code, 1942, Annotated) provides for the assessing of such additional benefits under either of two conditions. Such additional benefits may be assessed either, (1) because of additional benefits accruing to the lands other than those already assessed, or, (2) because it becomes necessary in order to raise funds to preserve and maintain the improvements of the district. The latter clause is not a mere repetition of the clause preceding it but is a distinct and additional grant of authority for the assessment of additional benefits where necessary to raise funds to preserve and maintain the improvements of the district and the power to assess additional benefits under that clause is not dependent upon different or additional benefits accruing to the lands other than those assessed and accruing from the original improvement.

The assessment of additional benefits by the commissioners in the present case was authorized by the last clause of the state. The last paragraph of the above section specifies the two distinct conditions under which additional benefits may be assessed against the lands of the district. Such additional benefits may be assessed where lands received additional, in the sense of other or different, benefits other than those assessed and which accrued because of the installation of the drainage system. The latter clause of the section specifies the other condition under which additional benefits may be assessed, and authorizes the assessment of such additional benefits where necessary to preserve and maintain the improvements of the district already constructed.

The statement disjunctively of two distinct conditions under which the assessment of additional benefits is authorized negatives the assumption that the latter clause in the statute is merely a repetition in different words of the preceding clause, or that where additional benefits are assessed to apportion the cost of work necessary to preserve and maintain existing improvements it is necessary that the lands assessed must have received additional or different benefits other than those previously assessed and which will accrue from the preservation and maintenance of such existing improvements.

The legislature recognized the possible necessity of assessing additional benefits not contemplated or taken into consideration in the original assessment and provision is made for such assessment in the statute.

But the latter clause of the statute is a specific grant of authority for the assessment of additional benefits where such additional assessment is necessary to raise funds to preserve and maintain existing improvements, and such grant is logically not made dependent upon the separate tracts of the district receiving benefits other than those originally assessed for the construction of the drainage improvement. Preservation and maintenance of an existing improvement of necessity can merely preserve and maintain the benefits originally accruing from the drainage system and cause a continuation thereof, and the fair and equitable method of apportioning the cost of work necessary to preserve and maintain existing improvements is by apportionment upon the basis of the amount of land reclaimed by the original installation of the drainage system.

The argument of the appellant essentially is to the effect that each separate individually owned tract of land in the district can be taxed only for the cost of preserving and maintaining that part of the canal traversing it. It is submitted that the language of the statute providing for the assessment of additional benefits to preserve and maintain the improvements in the district does not contemplate that such assessments be made on that basis.

In the case of Wheeler and Silber v. Bogue Phalia Drainage District, 106 Miss. 619, 64 So. 375, this court passed upon a contention similar to that now being advanced by appellant in the present case to the effect that his lands may not be assessed with benefits to raise money for the construction of parts of the drainage system not actually touching his lands, and from which such particular lands receive no direct benefit.

In the Wheeler case, supra, the appellant assigned as error: "`Third. The commissioners did not assess the land according to the benefits and construction of improvements that benefited the particular tracts of land.'"

The court, in disposing of this assignment, said: "The argument under this assignment is that appellants have been assessed with the proportionate amount of the costs of certain lateral drains which traverse lands other than that owned by them, and have no effect upon any land owned by them. We have made no examination into the question of fact here raised for the reason that it is not presented for decision by this appeal. One of the first questions to be adjudicated in cases of this character is `whether the lands of said proposed drainage district . . . require a combined system of drainage' (Section 1689, Code of 1906); and a decree adjudicating that the proposed district does require a combined system of drainage is final and cannot be reviewed on an appeal from a decree approving an assessment. What was said in response to appellant's first assignment of error is in point here and may be considered in connection herewith. When necessity for a combined system of drainage has been established, the cost to be apportioned, under Section 1689, to, `The several tracts of land' is `the cost of said proposed work'; that is, of the work necessary to be done in order to put into effect the combined system of drainage. There is nothing in the section to indicate that in apportioning the cost of the work the commissioners shall ascertain what ditches are necessary to drain each tract and to assess each with only its proportionate amount thereof. To do this would seem in most cases to be practically impossible, and in the case at bar one of the considerations entering into the construction of all of the ditches and canals seems to have been the necessity of preventing Bogue Phalia, the principal artery of the system, from overflowing."

In this case (Wheeler etc. supra) the appellant assigned an additional error: "`Eighth. Because the commissioners assessed appellant's lands too high in this: That it was assessed at the maximum regardless of the cost of the improvements that drained the lands.'"

The court said: "This assignment has been disposed of by what is said in response to the third assignment of error."

The necessity for a combined or integrated system of drainage of the territory comprising Red Banks Creek Drainage District was finally settled by this court in the case of Mrs. W.S. Clark, et al. v. Red Banks Drainage District, 112 So. 485, where the action of the chancery court in organizing the district was affirmed per curiam.

The advantages accruing to the lands of appellant and the enhancement of such lands in being reclaimed from overflow are continuing benefits accruing to him by reason of the integrated system of drainage of the district. The owners of land in the lower portion of the district must be protected from the artificially increased hazard of overflow on account of the greater rapidity and volume of bringing down the waters of the entire district. Thus, where the necessity of an integrated system of drainage has been established, as stated in the above case, it is incumbent upon the owners of lands throughout the district receiving benefits on account of the installation of the drainage system to bear their proportionate share of the cost of work necessary to provide a satisfactory outlet for the waters of the district so as to prevent damage to the lands in the lower portion of the district.

In Toler v. Bear Creek Drainage District, 141 Miss. 851, 106 So. 88, in discussing the relative rights of individual land owners and those of the district as a public subdivision created for public purposes, the court said, "It may be that all of the land in the district will not be benefited to the same extent by the establishment of the district, but, if so, that fact is of no consequence, for equality of benefits is not essential to formation of a drainage district." And further the court said, "The purpose for which such districts may be and are established is to promote the public welfare (citing Cox v. Wallace, supra; Jones v. Drainage District, 102 Miss. 799, 59 So. 921), and the private drainage rights of the land owners who own the land composing the district become, ex necessitati, merged in and are supplanted by the rights relative thereto conferred by the statute on the district. If each land owner continues after the establishment of a drainage district to have the right to drain his lands as he pleases, a district could not properly function, and each land owner therein would be at the mercy of every other to the same extent that he was before the district was established, one of the things which the statute authorizing the establishment of drainage districts was inacted to prevent."

It is submitted that this court has recognized the obligation of all of the land owners in the district to bear their just proportion of the cost of work necessary to preserve and maintain the entire system of drainage of the district.

White, et al, v. Lake Cormorant Drainage District, 130 Miss. 351, 94 So. 235. In the cited case, the drainage system had not been completed at the time of the second or additional assessment of benefits by the commissioners. Therefore, the assessment was not made under the authority of the last clause of Section 4689, Mississippi Code of 1942, Annotated, which provides: "Or because it becomes absolutely necessary in order to raise funds to preserve and maintain the improvements of the district." In the White case, the court said, "We deem it unnecessary to consider the question whether the decree can be justified on the ground that the new assessment was authorized by the statute for the purpose of preserving and maintaining the improvements already made." The court then continued to say, "In our opinion under the evidence the decree of the court was authorized by that clause of the statute which authorizes a new assessment of benefits where there are additional benefits to the land other than those ascertained and found in the first assessment." It will be noted that in the White case the court approved a new assessment of benefits by the commissioners, "making a horizontal raise of fifty percent of the first assessment of the lands of the district." The court saying, "The (lower) court in its decree in this case found, and it was justified in so finding by the evidence, that the lands in this district would receive, by the completion of the improvement plan, at least fifty percent more than the benefits considered and assessed in the first assessment." In considering the propriety of the additional assessments in the White case, it was stated that: "It should be borne in mind" that the act authorizing drainage districts provides among other things, "That the act shall be liberally construed to promote the ditching, drainage, and reclamation of swampy and overflowed lands."

The case of Peoples Bank Liquidating Corporation v. Beashea Drainage District, 199 Miss. 505, 24 So.2d 784, discusses the assessment of additional benefits. The drainage district in that case was organized in 1919 under Chapter 195, the Laws of 1912, as amended by Chapter 269 Laws of 1914, bonds were issued and the proceeds of this issue were expended for construction work without fully completing the drainage system. The commissioners then issue certificates of indebtedness which amounted to nearly $8,000.00 to raise additional funds for that purpose. The passage of a special legislative act was obtained, authorizing the issuance of additional bonds with the limitation thereon that the total of the outstanding indebtedness of the district should not in any event exceed the total of the assessed benefits. The court discusses the well established proposition that bonds may not be issued in an amount exceeding the total assessed benefits of the district. The court then said, "The bonds of the second series in the instant case having been issued to retire the certificates of indebtedness incurred for constructing an outlet drain or canal from the borders of the district in Pearl River after the full expenditure of the proceeds of the first series, and for the purpose of making effective, completing and preserving the improvements made under the first bond issue, the commissioners had the right to assess additional benefits against the lands in the district, if in their judgment further benefits would accrue to the land owners by virtue of such further construction, or if in their judgment it had become necessary to preserve the improvements theretofore made." The court then said, "The cases of White, et al. v. Lake Cormorant Drainage District, 130 Miss. 351, 94 So. 235, and Anderson v. McKee, supra, expressly so held." In that case the court also said, "It is to be conceded in the outset that in determining the amount of benefits to be assessed against the lands, and in the issuance and sale of the second bond issue without providing for their payment by assessing additional benefits, the commissioners were acting judicially in that behalf. . . ." The court points out that "Section 6, Chapter 269, Laws of 1914, authorizes the commissioners to have increased the original assessment of benefits in order to pay all the bonds and accrued interest on either bond issue if, in the exercise of their judgment and discretion, they had found that the lands would be benefited more than the amount of benefits first assessed, or if they had found that it became, `absolutely necessary . . . to preserve and maintain the improvements (already made).' This section of the statute therefore vested the commissioners with authority to issue the second series of bonds, and to assess additional benefits for the payment of the same if, in their judgment, it had either become absolutely necessary to complete, preserve and maintain the improvements already made, or if additional benefits would accrue to the owners of the real property of the district as a result thereof; and they were thereby authorized to issue such bonds for the payment of the certificates of indebtedness heretofore mentioned, if the same were issued on the foregoing grounds."

Gillis, et al, v. Indian Creek Drainage District, 155 Miss. 160, 124 So. 162, (1929). The court, considering the statute providing for the assessment of additional benefits, said, "The purpose of the statute taken as a whole is to secure equal and just rights to all of the property owners of the District." This clearly implies that land owners in the lower reaches of the district are not to be penalized, in making the additional assessments to preserve the improvements of the district as authorized by the statute, for the benefit of the land owners in the upper and higher end of the district. The lower court was in error in confirming the action of the commissioners in "picking out" specially designated lands lying in municipalities, and railroad tracks, and a few other bodies of land and making additional assessments against them, the court saying that the district "Does not have the right, under this section anywhere, to pick out certain particular tracts and assess them for the benefits accruing to it, and leave unassessed benefits to other tracts within the district. The purpose of the statute taken as a whole is to secure equal and just rights to all of the property owners of the District."

Gillis, et al, v. Indian Creek Drainage District, 160 Miss. 528, 134 So. 173, (1931), (The second appearance of that case in the Supreme Court), the language of the court is of particular interest in the present case; "After the creation of the District and the completion of the improvements proposed therein, it was found that the ditches and drains had partially filled up and become obstructed with silt and sand flowing out of the hills, and were also obstructed by willows and other small bushes growing therein, and it was determined that it was necessary to make an additional assessment on some of the property in the district to provide funds to clean, repair and maintain the drainage canals originally laid out, and the commissioners of the District proceeded to give notice of a hearing to assess benefits against certain property owners in the District, but not against all of them. From a decree approving an assessment so made, an appeal was prosecuted to this court, and the decree of the court below was reversed in an opinion reported in 155 Miss. 160, 124 So. 262, in which it was held that under the closing portion of Section 7, Chapter 269, Laws of 1914, (Section 4463 Code of 1930) benefits can be assessed subsequent to the first assessment, when it is necessary to assess the property within the district in order to raise funds to preserve and maintain the improvements of the district, and that, when it becomes necessary to make a subsequent assessment under the latter part of the aforesaid section, such assessment may be based upon the benefits that will then accrue to the property of the district without regard to the judgment of the commissioners in the first hearing, but in such case the property of the entire district must be taken and considered, and it is not permissible to select certain parcels or lots of land and assess them with benefits and leave other property benefited by the additional work, or additional assessment, unassessed." The court further said, "When it becomes necessary to make an additional assessment to preserve and maintain the improvements of a district, the benefits to all the land and property of the district resulting from an expenditure of the money to be derived therefrom in maintaining the district must be proportionately assessed against all the lands of the district without reference to inequality that may have existed in the original assessment."

The case Anderson v. McKee, 182 Miss. 156, 179 So. 858, cited by appellant, is not in point. In that case the decision turned upon the failure of the commissioners to assess the lands of the original district and the lands of added territory with additional benefits to support an issue of bonds. The court concluding that the appellant in that case, as holder and owner of such bonds, would only be entitled to a writ of mandamus to compel the commissioners to meet and act in the matter, and was not entitled to such writ to compel them to levy the additional assessment of benefits, and a tax thereon.

The case of Anderson v. Robbins, 161 Miss. 604, 137 So. 476, cited by appellant, deals with the question of mandamus or injunction to compel drainage commissioners to assess additional benefits to pay an indebtedness of the district. It has no reference to the assessment of additional benefits to raise money for the preservation of the improvements within the district.

Point II. The authorities cited by appellant as supporting his construction of the statute dealing with the assessment of additional benefits have been demonstrated either to be not in point or have been shown to support the action of the chancellor in approving the assessment by the commissioners of additional benefits against the lands of appellant in the present case. The subsequent re-enactment of such statute is an adoption of the court's construction thereof, which is shown to have been favorable to appellee.

The principal of law announced in Russell v. Federal Land Bank of New Orleans, 180 Miss. 55, 176 So. 737, and Hoy v. Hoy, 93 Miss. 732, 48 So. 903, to the effect that reenactment of a statute which has been judicially construed is an adoption of the construction placed upon it by the court, is not controverted by the appellee.

It is submitted that the application of such principle to the present case requires the conclusion that the legislature, by reenacting the statute under consideration after the decisions of this court in the cases hereinbefore discussed, adopted the construction placed upon such statute by the court to the effect that additional benefits might be assessed under the latter clause of the statute where necessary to raise funds to preserve and maintain the improvements of the district already made, without regard to whether different or additional benefits accrued to such lands other than those accruing to such lands by reason of the continuation, preservation and maintenance of the drainage system.

Point III. The record of the testimony in this case, taken as a whole, conclusively demonstrates that the appellant, in common with other land owners of the district, will receive the benefits assessed through the preservation and maintenance of the system of drainage improvements.

There is direct testimony to the effect that the additional benefits assessed appellant's lands would accrue to his lands by reason of the construction of the proposed improvement. And it is now immaterial that the appellant denied such benefits would accrue to his land, such testimony on his part merely contradicting the evidence for the district in that respect, and the chancellor's finding on conflicting evidence that his land, in common with the other lands of the district, will be benefited by the construction of the proposed drainage system is not open to review in the Supreme Court. Wheeler and Sibler v. Bogue Phalia Drainage District, 106 Miss. 619, 64 So. 375, supra.

In Wheeler and Sibler v. Bogue Phalia Drainage District, supra, this court expressly decided this question in disposing of the third and eighth assignments of error in that case.

It is submitted that this court, in all the cases cited, has construed these statutes to authorize the assessment of all lands benefited by the construction of the drainage system for proportionate part of the cost of work necessary to preserve and maintain the system, regardless of the fact that such work might not be necessary opposite each separate tract abutting the drainage canal.

The cited statutes appear to be similar in theory to legislation in other states, which has been construed by the courts of such states to require the apportionment of the costs of work necessary to preserve and maintain existing improvements against all of the lands of the district receiving benefits from the drainage system. Henshaw v. Holt, 262 Ky. 19, 89 S.W.2d 313; Mayne v. Pottawattamie County, 178 Iowa 783, 160 N.W. 345; Watson v. Armstrong, 180 Ind. 49, 52, 102 N.E. 273.

Chancellor's finding supported by substantial evidence would be accepted by the Supreme Court. Hays v. Lyon, 192 Miss. 858, 7 So.2d 523.

The theory of appellee in this case is in line with legislation and court decisions in other states:

Under some statutes assessments for repairs or maintenance must be in the same proportion as the assessment for the construction of the drain. Citing Bonds v. Pikey, 269 Mo. 398, 190 S.W. 883.

Property already benefited by original work, which receives no additional benefit, may be assessed for additional work necessary to give equal protection to other land owners in district. Rauch v. Himmelberger, 305 Mo. 70, 264 S.W. 658.

The drainage system, once established and completed, is an improvement from which the district as a whole is conclusively presumed to receive a benefit. Berieholz v. Board of Supervisors of Pocahontas County, 186 Iowa 1147, 173 N.W. 1.

It is therefore submitted that the decree of the lower court, having been in accordance with law and based upon competent, substantial and believable evidence, should be affirmed.