Hagar v. Board of Supervisors

By the Court, Crockett, J.: On the fourth day of October, 1875, the Board of Supervisors entered an order appointing commissioners to levy an additional assessment on the lands in Swamp Land District No. 108. On certiorari, the District Court set aside this order as null and void, on the ground that the Board of Supervisors had exceeded its jurisdiction in making it, and the appeal is from the judgment of the District Court.

This Swamp Land District was organized in September, 1870, under the act of March 28, 1868 (statutes 1867-8, p. 507); and at the time of its organization, the trustees presented to the Board of Supervisors a plan for the reclamation of the district and an estimate of the cost. Thereafter, an assessment was levied on the lands to be benefited, sufficient to raise the estimated amount, and the work of reclamation proceeded. In October, 1875, the trustees presented to the Board of Supervisors a petition, stating the work which had beeu done, and that “all work and improvements contemplated by said original plan has been fully performed. The original assessment was and is insufficient to provide for the complete reclamation of the lands of the district according to the original plan thereof, and a further assessment is necessary and required to provide for the payment thereof, not including the expenses [476]of the future protection, maintenance and repair,thereof.” The petition then proceeds to state the total cost of all the work done, from which it deducts the amount of the prior assessment, and prays that a new assessment for the deficiency be made by Commissioners to be appointed by the board.

The respondent contends that the petition does not state a case in which an additional assessment can be levied under the statute, and consequently that the board had no jurisdiction to appoint the commissioners. The argument on this point is: First. That under the statute a second assessment can be levied only when it is necessary to complete the work of reclamation; and it is said the petition fails to show, either that the land has been or can be reclaimed. Second. That the assessment is intended, not for a further prosecution of the work of reclamation, but to pay debts illegally contracted for work already done.

Section 33 of the act of 1868 required the trustees to report to the Board of Supervisors “the plans of the work and estimates of the cost, together with the estimates of incidental expenses of superintendence, repairs, etc.; and said Board of Supervisors * '* * shall appoint three commissioners ” to view the land and make the assessment. Section 34 provided that, “ in case the tax levied shall be insufficient to pay for the reclamation or for the necessary repairs, the said supervisors shall, upon revised estimates furnished by said trustees, make additional levies sufficient for the purpose.”