106 Ark. 22 | Ark. | 1912
(after stating the facts). If it be conceded that the county court has power to make further assessment for the construction and completion of a public drain or ditch after the assessment first levied for that purpose has been exhausted it can not be contended'that it can make any such assessment except upon the basis of benefits to the lands in said district for the construction thereof, the law expressly providing that “All assessments shall be made on the basis of benefits accorded by reason of the construction of the improvement and of giving an outlet for drainage.” Section 1424, Kirby’s Digest. See also, Cribbs v Benedict, 64 Ark. 555; Kirst v. Improvement Dist., 86 Ark. 1; Alexander v. Crawford County Levee Dist., 97 Ark. 322, 134 S. W. 618; Moore v. Long Prairie Levee Dist., 98 Ark. 113, 135 S. W. 819.
It is nowhere alleged in the complaint that the sum of the benefits originally assessed upon the lands in the district has not been exhausted nor that there remains of said amount of benefits so assessed a sum sufficient to pay and discharge the whole or any part of the warrant issued to the plaintiffs by the county clerk upon the treasurer for the balance due them under their contract for the construction of the public drain. Such being the case, the allegations of the complaint are not sufficient to show a right upon the part of plaintiffs to the relief prayed for. A writ of mandamus will not issue unless there is a clear legal right to same shown and no other remedy provided nor does it issue to compel any officer or tribunal to do that which the law will not compel him to do without the mandate. Fitch v. McDiarmid, 26 Ark. 482; Graham v. Parham, 32 Ark. 676; 26 Cyc. 150 and 153.
The court committed no error in sustaining the demurrer and the judgment is affirmed.
