The Cypress Creek drainage district issued four series of bonds. The first was issued under authority of two special aets of the Legislature of Arkansas, passed in 1911. The second issue was under a special act passed in 1915, and the last two issues were under two special aets passed in 1919 and 1921. The district came into default on all of these issues. Proceedings were begun by the trustees of the first and second issues to enforce the payment of the bonds and the issues in the ease finally developed info a contest of rights of priority between the first issue, the second issue, and the third and fourth issues. M. H; Roriek, holder of bonds under the first issue, intervened, contending for the priority of the first issue. The second issue conceded the priority of the first issue, but claimed a priority over the third and fourth issues. The third and fourth issues claimed a parity of all four issues. The court made findings of fact and stated conclusions of law to the effect that all four issues were upon a parity without any rights of priority as to any one of them. Erom that determination, Roriek, representing the first issue, and the trustee under the second issue bring this appeal.
The matters presented upon this appeal have to do with certain stated conclusions of law and certain findings of fact of the court below, but, in the last analysis) all involve but one general question, which is the proper construction to be given the above special aets under which these several issues of bonds were made.
In 1911, the Legislature passed two special aets designated as Special Act No. 110 (page 260) and Special Act No. 455 (page 1227). The first act created this district. The second act amended the first act, and nothing was done until after the second act, so that we need concern ourselves only with Act No. 110, as amended by Act No. 455. Under these aets, the location and purpose and, generally speaking, the extent of the improvement contemplated to be brought
Section 12 of the same acts (page 1240) provided for the issuance of bonds, as follows: “For the purpose of constructing, completing and maintaining the drains, ditches and canals contemplated by the aet, and in order to enable the board of directors to further carry out the purposes of this Act, the said board shall have power to borrow money from time to time at a rate of interest not exceeding six per cent per annum, and to that end may issue negotiable bonds of said district, to an amount not exceeding $300,000.00, payable in lawful money of the United States, at such time and place, and in such denominations as the board may prescribe. Said bonds so issued by said board shall be signed by the president, and countersigned by the clerk, and the seal of: the district attached thereto. The board is hereby required to set aside annually from the first revenues collected from any source whatever, a sufficient sum to pay the interest for that year on all outstanding bonds, and any installment of principal that may become due in that year, and for the purpose of securing the payment of said bonds and interest, a lien is hereby charged on all lands, lots, railroad embankments and tramways in said district, paramount to all other liens except other taxes.”
A portion of section 13 (page 1240) provided- as follows: “For the prompt payment of bonds and coupons the entire revenues of the district arising from any and all sources are pledged, and for the purpose of paying said bonds and coupons, said board may execute an instrument of pledge in due form of law.”
Section 14 (page 1243) provided as follows: “The duties prescribed by this Aet may be enforced by mandamus, and in the event any bond or interest coupon is not paid when due, the holder thereof, or the trustee in any instrument of pledge executed to secure the same, shall have the right to apply to any chancery court having jurisdiction in any part of the district, for the appointment of a receiver to collect said assessment, and apply the same on said bond or interest coupon, and in the event of the appointment of any such receiver, all suits for collection of delinquent assessments shall be instituted in his name as receiver of the board, and as long as said receivership is in force all assessments collected shall be paid by the collector to said receiver, instead of to the treasurer or depository of the board. Said receivership shall exist until all the past due bonds and interest coupons have been paid in full.”
It was under the above provisions that the district executed its first pledge, and the first issue of bonds in the full amount authorized was sold to bona, fide purchasers.
In 1915, Special Act No. 80 (page 297) was passed as an amendatory act to those passed in- 1911. Section 12 of that act amended the existing section 12 of the prior acts so that it read as follows: “For the purpose of constructing, completing and maintaining the drains, ditches, canals, levees and dams contemplated by this Aet, and in order "to enable the Board of Directors to further carry out the purposes of this Act, the said board shall have power to borrow money from time to time at the rate of interest not to exceed six per cent per annum, and to that end may issue and sell at not less than par negotiable bonds of said district, to an amount not exceeding $1,000,000.00, payable in lawful money of the United States, at such
Other sections of the act of 1915 bear directly upon the improvement to be made and clearly show a changed and extended plan of improvement (see section 3). This act contained the same pledge of revenues as section 13 of the 1911 acts, above quoted, and the same method of enforcement ’ as in section 14 of the 1911 acts, above quoted. Under the authority of this act, the district executed its pledge, and the second issue of bonds ($700,000) was put out and sold to bona fide purchasers.
In 1919, Special Act No. 454 (page 581) was passed. It was entitled: “An Act to Enable the Board of Directors of the Cypress Drainage District in Desha and Chicot Counties to Expedite the Construction of and Final Completion of the Work Apthorized by Act No. 80 of the Acts of the General Assembly of the State of Arkansas in the Year 1915, and for Other Purposes.” No bonds were sold under this act until after it had been amended by the act of 1921.
In 1921, Special Act No. 260 (page 495) was passed, entitled: “An Act in Aid of Cypress Creek Drainage District, in Desha and Chicot Counties.” After reciting that the district had exhausted its funds, but had not made any issue of bonds authorized by the act of 1919, the act amended section 2 of the 1919 act to read that: “For the purpose of expediting the construction and final completion of the improvements authorized by Act No. 80 of the Acts of the General Assembly of the State of Arkansas for the year 1915,” the district was authorized to issue bonds not exceeding $800,-000 and that:
“Said board'may levy upon the assessed benefits in said district such imposts as are necessary to meet said evidences of indebtedness or bonds as the same may mature, and also to meet the interest thereon as same accrues.
“Said board may secure the payment of said bonds or evidences of indebtedness by a pledge or mortgage of its assessment of benefits; and in- order to continue the work, it may issue to the contractor, from time to time, its negotiable evidences of debt, which shall be taken up and cancelled when the bonds hereby authorized to be issued are sold, and shall be paid out of the proceeds of said bond issue, which is not to exceed $800,000.-00.”
Under the above authorizations of the acts of 1919 and 1921, the district executed the pledges and put out its bonds of the third and fourth issues.
In this situation, the contentions are as follows. Appellants contend (1) that the 1911 acts contemplated and provided for a described improvement upon which but one issue of bonds was authorized and that such acts were complete in themselves without any vision or intention as to future issues of bonds, and that, when such bonds were issued in accordance with those acts, they became a first charge upon the revenues of the district with the rights to enforce collection thereof and to make first application to the payment of such bonds; and (2) that the 1915 act broadened the scope of the improvement and made provision that such enlarged improvement would be taken care of by the issue of the additional amount of $700,000 provided for therein, and that the bonds issued thereunder had rights of priority upon the revenues of the district exceeded by and only .by the bonds under the first issue. Also, that to hold that the third and fourth issues of bonds were on a parity with either the first or the second issues would impair the contracts between the bondholders under those earlier issues and the district, and thus be violative of the Constitution.
On the other hand, appellees contend that all four issues are on a parity for the reasons: (1) That justice demands equality; (2) that no priority could have been intended by the Legislature; (3) that, under the laws of Arkansas, all such bonds are on a parity unless there is a distinct declaration to the contrary and no such declaration is here; and (4) that the statutes for the first two issues authorized no pledge of “assessment of benefits, or the tax levy, or the revenues of the District.”
In entering .the determination of these contentions it is important to consider two decisions of the Supreme Court of Arkansas
Regarding the above issue, the Supreme Court of the state said at page 65 of 109 Ark., 158 S. W. 960, 962: “The chancellor vas correct in finding that the third section of the act defines the system of drainage contemplated by the Legislature, and also in finding that the board could not expend more than ihe sum of $300,000 to carry otit the purpose of the Legislature as expressed in the act. The intent of the Legislature is not left to he gathered from doubtful language in various sections of the act, but it is clearly and unmistakably expressed in the third section, and, where the intent is elearly expressed in unambiguous language, it is the duty of the court to give, that language its full force and effect. The court cannot change the plain meaning of the words used by the Legislature, without trenching upon its functions. Therefore we are of the opinion that no authority can be found in the act for the construction of five main drains- or canals, with laterals, at a cost of $2,000,207, when the language of ihe act defining the system clearly expresses that there shall be one main drain or canal, with laterals, to cost not more than $300,000. To do so would be doing violence to the language of the act, and would be, in our opinion, the baldest kind of judicial legislation. The language of the third section plainly shows that the Legislature had in mind only one main drain or canal, and this the Legislature divided into two parts, viz., ‘from the Lincoln county line to Boggy bayou,’ and ‘of Boggy bayou from the government levee to Clay bayou.’ It is plain that in the matter of construction the Legislature had in mind these divisions of the main drain into two parts, for it says: ‘The work from Boggy bayou on down shall he completed before the government is asked to move its Boggy Bayou Levee.’ Then in another portion of this section the language is: ‘The board shall provide in like manner for the opening and constructing of a ditch or canal from the Lincoln county line to Boggy bayou.’ It is clear that the main ditch or canal was treated as having these two parts, for, after the description of these parts, the language continues: ‘After the completion of the main ditches or canals as above set forth, it may construct such general or main laterals, as will he of benefit to the community, etc., out of the funds in its hands, from the surplus and if there be a surplus.’ The use of the terms ‘main ditches’ or ‘canals’ in the plural shows that the main drainage ditch or canal before described was to- he composed of the two- parts as above stated; the one part running ‘from the Lincoln county line to Boggy bayou,’ and the other ‘of Boggy bayou from the government levee to- Clay bayou,’ both together constituting the main drainage canal from its beginning at ‘the Lincoln county line; to its terminus at ‘Clay bayou.’ In other words, the main canal, consisting of these two parts, was to begin at the Lincoln county lino and to end at Clay bayou. Wherever the words ‘drains,’ ‘ditches,’ and ‘canals’ are used in other sections of the act, they must bo held to have reference to the ‘general or main laterals’ to the one main drainage canal. These ‘general or main laterals’ are provided for in the third section of the act and are contemplated as a part of the drainage system by which the water was to be run into and
Sain v. Cypress Creek Drainage District, 161 Ark. 529, 257 S. W. 49, 258 S. W. 637, was an action by a landowner for damages caused by flooding a portion of his land by the improvements of this district. This ease is important mainly as containing a definitiori of the decision in the Wolfe Case and showing the views of the Supreme Court as to the scope and purpose of the 1915 Act. That portion of the opinion (on page 532 of 161 Ark., 257 S. W. 49) is as follows: “Plans were formed for the construction of the improvement, and assessments of benefits to the lands in the district were made, but, in litigation which arose between the district and certain landowners before further progress had been made in the affairs of the district, it was decided that the plans exceeded in scope the authority conferred by the statute creating the district. Cyress Creek Drainage District v. Wolfe, 109 Ark. 60, 158 S. W. 960. After that decision was rendered, further legislation was found necessary to give authority for , the construction of the improvement which would be adequate to the demands of the situation, so the General Assembly of 1915 enacted a statute (Acts 1915, p. 297) amending the original statute creating this district by enlarging the powers with respect to the extent of the improvement to be constructed, and, among other things, it was provided in that statute (section 5) — ‘that the assessment of benefits heretofore made by said district, as the same appears upon the assessment books thereof, is just and equitable, and the same is hereby affirmed and declared to be the assessment of benefits of said district.’ The improvement was then constructed in accordance with the plans, which contemplated the construction of a large ditch, or canal, beginning in the northern portion of Desha county and running thence southerly about 19 miles to the head of Bayou Macon, thus gathering up the surface waters, and waters which drained through Cypress creek and other streams, and carrying them into the head of Bayou Macon, through which they flowed, as above stated, southward.” (Italics ours.)
As to the contention of appellees that justice demands equality, it may be said that the purchasers of the first bond issue had a right to believe that their bonds would be the only issue made for this improvement, and to permit the Legislature thereafter to change the plan, and to authorize five times as maqy more bonds to be issued to share with them, would constitute a legal fraud upon them.
Also, it would be a clear impairment of their contract with the district. Under the legislative authority of these acts of 1911 the district made its contract (the pledge and bonds) with the bondholders and their representative, the trustee. That contract became effective, and right vested thereunder. Thereafter, the Legislature has no power to alter such contract rights to the detriment of those who dealt with the district upon the faith of the authority granted by the Legislature to the district. The matter is well expressed in a quotation from Droit de la Nat. L. 1, c. 6, § 6, contained in City of Cincinnati v. Seasongood, 46 Ohm St. 296, 21 N. B. 630, at page 633, as follows: “A law can be repealed by the law-giver; but the rights which have been acquired under it while it was in force do> not thereby cease. It would be an act of absolute injüstiee to abolish with a law all the effects which it had produced.” The same is as true of an amendment as of a repeal. To prevent just such character of injustices was one of the reasons that the Constitution (article 1, § 10, cl. 1) denied to the states the power of impairing the obligations of legal contracts. Scotland County Court v. U. S., 140 U. S. 41, 11 S. Ct. 697, 35 L. Ed. 351; Seibert v. Lewis, 122 U. S. 284, 294, 7 S. Ct. 1190, 30 L. Ed. 1161; Port of Mobile v. Watson, 116 U. S. 289, 305, 6 S. Ct. 398, 29 L. Ed. 620; Louisiana v. Pilsbury, 105 U. S. 278, 26 L. Ed. 1090; Moore v. Otis, 275 F. 747, this court; Town of Samson v. Perry, 17 F.(2d) 1 (C. C. A. 5); Padgett v. Post, 106 F. 600 (C. C. A. 4); Brodie v. McCabe, 33 Ark. 690. Also, it may be said that it is no unusual thing for governments, governmental agencies, and private parties to undertake constructions which will far exceed their first plans or ideas; to borrow money on the security of the contemplated improvement, and later to find that it requires much more money to complete the improvement. In such a situation, it has never been thought that the security already .given could be affected or shared by money later borrowed upon the same property merely because the expenditure of the later money redounded to the benefit of the security held for the first loan. This operation is constantly taking place and takes the form of a second or subsequent mortgages.
The above decisions and the situation effectually dispose — as to the first issue of bonds — of the two contentions of appellees that justice demands equality, and that no priority could have been intended by the Legislature when it passed the acts of 1911.
Under the discussion above, it is clear that the first issue of bonds stands superior to all subsequent issues upon the theory announced in the Wolfe Case, that the 1911 acts contemplated a complete, improvement, and it would be a legal fraud upon the purchasers of the bonds under those aets to permit a later issue to share on a parity to them and, also, upon the ground that it would be impairing the terms of their contract entered into in pursuance to the powers given the district under those acts, and therefore violative of the Constitution. Trustees of Wabash & Erie Canal Co. v. Beers, 67 U. S. (2 Black) 448, 17 L. Ed. 327.
Another contention of appellees is that, under the Arkansas laws, all bonds issued by an improvement district are on a parity unless there is a distinct declaration to the contrary, and they say that no such declaration is here found in these statutes. They rely upon four cases, two in the Supreme Court of Arkansas and two in this court. None of those eases are applicable here. Three of them (Hoehler v. W. B. Worthen Co., 154 Ark. 444, 243 S. W. 822; McNear v. Little Red River Levee Dist. [C. C. A.] 293 F. 717, and State Bank of Wellston, Mo., v. Mississippi Valley Trust Co. [C. C. A.] 297 F. 563) deal with successive issues under the same authorizing statute. That situation is essentially different from this because there the act iself declares and prospective purchasers of earlier partial issues know therefrom that further bonds may issue, while here each issue is authorized under a separate and successive act with no intimation therein that there may be further issues or that further issues will be given a parity with bonds then being offered. The fourth ease (Board of Commissioners v. Board of Directors, 181 Ark. 898, 28 S.W.(2d) 721) is a case of overlapping districts, one being a drainage, and the other a levee district, the drainage district covering about two-thirds,of the land included in the levee district. That case presented only a question of construction o-f a section of the general statutes of Arkansas in no wise here involved. In that opinion, however, the court, stated |hat, unless there is a clear declaration to the contrary, the lien of improvement district bonds is not superior to the state general taxation, nor is it destroyed by a sale for general taxes, nor is there a destruction of a lien under one district by sale of lands to satisfy the lien of another district. The nearest approach to the circumstances of this case which that decision malíes is that, where there are overlapping and separate districts, the liens of each are preserved, and neither is destroyed by the other under a theory of priority unless ¿ueh priority be clearly and definitely stated by the Legislature. That pronouncement is merely an application of the rule announced in some jurisdictions to the.effect that the tax liens of different governmental units will be treated. as upon a parity when they affect the same property unless the Legislature has expressed a different intention. Kentucky Lands Inv. Co. v. Fitch, 144 Ky. 273, 137 S. W. 1040, 1042, Ann. Cas. 1913A, 672, citing Justice v. City of Logansport, 101 Ind. 326; Dennison v. Keokuk, 45 Iowa, 266, and Bellocq v. New Orleans, 31 La. Ann. 471; Brownell Improvement Co. v. Nixon, 48 Ind. App, 195, 92 N. E. 693, 95 N. E. 585. Such situation is different from this, where the contest is between bondholders of the same district and under issues authorized by different and successive statutes with no intimation therein of issues beyond those set forth therein. Both the theory, principle, and effects are different.
Since these cited cases do not rule this contention of appellees because they are not applicable, we pass to the examination of the-contention itself. While there is a rule that' the lien of the latest tax prevails over earlier liens of similar taxes levied by the same authority, that rule is applicable only to general taxes for the support of the governmental unit (state, city, county, etc.) levying the' taxes. It is not applicable to special taxes for improvements ' based upon benefits to property, but such liens take precedence inchronologieal order. Parker-Washington Co, v. Corcoran, 150 Mo. App. 188, 129 S. W. 1031; Des Moines Brick Mfg. Co. v. Smith, 108 Iowa, 307, 79 N. W. 77; Brady v. Burke, 90 Cal. 1, 27 P. 52; Wood v. Brady, 68 Cal. 78, 5 P. 623, 8 P. 599. This difference between the rules of priority of liens as to general taxes and as to special taxes is based upon the difference in character of the taxes themselves. Ill. Cent. R. Co. v. Decatur, 147 U. S. 190, 13 S. Ct. 293, 37 L. Ed. 132; Parker-Washington Co. v. Corcoran, 150 Mo.App. 188, 129 S. W. 1031. Of course, the Legislature may declare such priorities as to
Our next inquiry is whether these acts of 1919 and 1921 express any priority or parity of lien with the bonds authorized under the acts of 1911 and of 1915. Each of these acts (1919 and 1921) contains a recognition of the issues of bonds under prior acts. The language used in this regard is that the bonds issued under the particular act shall be a lien charge “paramount to all other liens except the liens of bonds heretofore issued.” Appellants contend that this language shows a recognition of the priority of earlier bonds, while appellees contend that this provision was inserted only to avoid the operation of a rule of law that the last tax lien is superior. As stated above, the rule of law that the latest tax lien is superior is not applicable to benefit assessment tax liens; therefore this language was not used for the: purpose of avoiding priority of a later tax lien. This language recognizes the existence of the prior issues and that the bonds under the act are not paramount to such prior issues, but it does not mean that the bonds issued under the particular act are on a parity with prior issues. The purpose and effect of this language is' to make the bonds issued thereunder superior to existing private liens — such as mortgages.
The last contention of appellees is that the first two acts authorized no pledge of the benefits of the tax levy or the revenues of the district. This contention is answered hv the provisions in sections 12 and 13 of the 1911 acts, where it is said: “For the purpose of securing the payment of said bonds and interest, a lien is hereby charged on all lands, lots, railroad embankments and tramways in said district, paramount to all other Hens except other taxes” (section 12), and “for the prompt payment of bonds and coupons the entire revenues of the district arising from any and all sources are pledged, and for the purpose of paying said bonds and coupons, said board may execute an instrument of pledge in due form of law” (section 13). This view is further fortified by the provisions of section 14 permitting appointment of. a receiver to collect the assessments to pay the bonds. The act of 1915, under which the second issue was made, contains the same language.
We think the court erred in its view of the law as to the construction of these acts. It made a corollary error in its findings of fact challenged on -these appeals. Those findings of fact were based upon the view of the court that it could not be presumed that the Legislature was ignorant of the size of the improvement contemplated, of the fact that the improvement would cost much more than the «mount authorized in the 1911 acts, and of the fact that it would produce benefits of more than $5,000,000. The presumptions made by the court as the basis for its findings are not justified by the. evidence in the record and are directly prevented by the decision in the Wolfe Case.
The decree should be, and is, reversed, with directions to- enter a decree sustaining the priority of the first and then the second issues in that order.