The opinion
On Rehearing.
O’NIELL, J.
This suit is brought, under the provisions of Act 101 of 1898, p. 127, to confirm a tax sale made to plaintiff on the 26th of June, 1915, for taxes assessed in the name of the Xeter Realty Company, for the year 1914. The statute provides that a tax sale may be thus confirmed by judicial decree, unless a proceeding to annul the sale be instituted within six’ months from the date of service of the petition and citation. It is well settled by the decisions of this court that the action to annul the tax sale may be brought by the defendant in such suit within the six months, either by way of answer to the suit or by a separate action. In either case the defendant in the action to confirm the tax title becomes plaintiff in-the action of nullity.
In answer to this suit to confirm the tax sale, defendant pleaded that the sale was null, for various reasons set forth in his answer, and prayed that it be so decreed. Of the several causes of nullity alleged by d&>. fendant, he has abandoned all except the contention that a certain drainage tax levied by the board of commissioners of the Bayou Terre-aux-Boeufs drainage district, for which tax, with other taxes, the land was sold, was invalid. The cause of invalidity alleged is twofold, viz.: (1) That the drainage tax referred to was imposed for gravity drainage, under authority of a vote of the property taxpayers at a special election called for that purpose, whereas, defendant alleged, the land in contest was marsh or swamp land, which could be drained only by means of levees and pumps, not by means of canals alone, and which could therefore be taxed for drainage purposes only upon a petition of the owners of the major part in area of the land within the drainage district, and could not be taxed for a system of gravity drainage, under authority of an election held for that purpose; (2) that the land in contest was not improved or benefited by the system of gravity drainage for the cost of which the tax was imposed, and that the sale of the property in payment of such tax was therefore illegal, unjust, unwarranted, contrary to law, and was virtually a confiscation of the property, or taking of it without due process of law, and without compensation, in violation of the fourteenth article of amendment of the federal. Constitution and of the second article of the Constitution of this state.
On the trial of the case, plaintiff in the original suit, defendant in the action of nullity, urged the following objections to all evidence offered by defendant to prove that the land was not improved or benefited by the gravity drainage, and was therefore not subject to a tax levied for that system of drainage, viz.:
(1) That, by suffering the sale to be made without objection, defendant had allowed to expire the utile tempus, within which he might have urged the defense, and that he could not thereafter urge as a cause for annulling the tax sale a collateral attack upon the validity of that part of the taxes for which the property was sold.
(2) That defendant had bought the property from the Xeter Realty Company, and that that company had bought the property at a sale *423 made for the same drainage tax in contest in this suit, though levied for a previous year, and that defendant therefore could not, for that cause, assert the nullity of plaintiff’s title in this suit without thereby asserting the nullity of his own title.
(3) That defendant did not, in his answer to the suit, allege that there was fraud or a palpable abuse of discretion in the organization of the drainage district or in the levying of the tax complained of, and that the judicial department of the government was therefore without authority or jurisdiction to determine whether the land in contest was or was not improved or benefited by the levy of the drainage tax or forced contribution for the general improvement of all property within the district.
The district judge reserved his ruling upon the objections to the admissibility of the evidence, maintaining that the objections pertained to the effect of the evidence; and the court therefore admitted the evidence, subject to defendant’s objections. After trial of the case judgment was rendered in favor of plaintiff confirming his tax title, and defendant has appealed.
Opinion.
[4] Our opinion is that the objections to the admissibility of the evidence should have been sustained. The answer to this suit does not charge that there was fraud, or such an abuse of discretion as was equivalent to fraud, on the part of the commissioners of the drainage district in imposing the tax or local assessment for gravity drainage upon the land in contest. The determination of the question whether any particular tract of land is improved or benefited by being included within a taxing district, or the determination of the question of the extent of improvement or benefit of any particular tract of land within such district, is, primarily, a function for the governing authorities of the district to exercise; and, when they have exercised that function, their decision is not subject to review by the courts, except upon allegations of fraud or of such an abuse of discretion as would be equivalent to fraud. George v. Young, Tax Collector, 45 La. Ann. 1232 , 14 South. 137 .; De Gravelle v. Iberia & St. Mary Drainage District, 104 La. 703 , 29 South. 302 ; Shaw v. Board of Commissioners of Bayou Terre-aux-Boeufs Drainage District, 138 La. 917 , 70 South. 910 ; Saunders v. Shaw, 244 U. S. 317 , 37 Sup. Ct. 638, 61 L. Ed. 1163 ; Williams v. Board of Commissioners of Bayou Sale Drainage District, 130 La. 969 , 58 South. 847 ; Myles Salt Co. v. Board of Commissioners of Iberia & St. Mary Drainage District, 134 La. 903 , 64 South. 825 , and 239 U. S. 478 , 36 Sup. Ct. 204, 60 L. Ed. 392 , L. R. A. 1918E, 190; Spencer v. Merchant, 125 U. S. 355 , 8 Sup. Ct. 921, 31 L. Ed. 763 ; New Orleans v. Clark, 95 U. S. 653 , 24 L. Ed. 521 ; Norwood v. Baker, 172 U. S. 269 , 19 Sup. Ct. 187, 43 L. Ed. 443 ; L. & N. Railroad Co. v. Barber.Asphalt Paving Co., 197 U. S. 430 , 25 Sup. Ct. 466, 49 L. Ed. 819 ; French v. Barber Asphalt Paving Co., 181 U. S. 324 , 21 Sup. Ct. 625, 45 L. Ed. 879 ; Chadwick v. Kelly, 187 U. S. 540 , 23 Sup. Ct. 175, 47 L. Ed. 293 .
[5] It is not alleged in defendant’s answer to this suit that the action of the board of commissioners in subjecting the land in contest to a tax levied for gravity drainage was an arbitrary discrimination, or such an unjust imposition or abuse of discretion as would be equivalent to fraud. The allegation that the sale of defendant’s property for the drainage tax in contest was a confiscation or a taking of the property without due process of law and without compensation was nothing more than an allegation that the property was not improved or benefited by the general improvement for which the tax was levied. Such an allegation does not warrant an investigation by the courts into the question of improvement or benefit of *425 any particular property in the taxing district by the general improvement for which the tax was imposed.
[6] It is true article 281 of the Constitution of 1898, as amended pursuant to Act 197 of 1910,-p. 332, and pursuant to Act 192 •of .1914, p. 370, provides one method for imposing a tax for gravity drainage upon land that can be drained by means of canals alone, and another method for imposing a tax for draining land that is not susceptible of gravity drainage, and that can only be drained by means of levees and pumps. The tax for gravity drainage can be imposed only under authority of a vote of a majority in number and amount of the property tax payers of the drainage district. The tax for draining land that is not susceptible of gravity drainage, and that has to be levied and pumped in order to be drained and reclaimed, can pe imposed only upon a petition of the owners of a majority in area of the land within the drainage district. The Constitution, as amended, also provides that drainage districts may be divided into subdistricts,-for the purpose of having a suitable system of drainage for each subdistrict. But that does not mean that each and every landowner in the district is entitled to have a separate subdistrict and a system of drainage particularly suited to his land. It may be true, and we presume it-is true, that the canals which effectively and completely ■drain those lands that are high enough for gravity drainage are also necessary, though not of themselves sufficient, for the drainage of the lower lands which need also the aid of levees and pumps to drain them effectively and reclaim them. Therefore a determination of the question whether a proposed canal will eventually improve or benefit any particular tract of land in a drainage district is largely a matter of prophecy on the part -of the governing authorities of the district, aided by the advice of ■ expert engineers. When the determination or prophecy as to the general improvement of the land included in the taxing district has been faithfully and conscientiously made by the authorities intrusted with that function, the burden of the tax must be borne by all land within the district, in the ratio fixed by law; and it is not within the authority or jurisdiction of any court to annul the tax as to any particular piece of land merely because,, in the judgment of the court, that particular piece of land was not improved or benefited to the extent anticipated by the governing authorities of the taxing district.
[7] Defendant’s attack upon the validity of the drainage tax in contest is nothing more than a collateral attack upon the validity of the bonds into which this tax has been funded. Our opinion is that the tax and the bonds into which the tax was funded are not subject to a collateral attack in a proceeding to which the authorities who levied the tax and the holders of the bonds are not parties defendant.
[8] On reconsideration of the question, we are also of the opinion that the defendant in this suit is not in a position to attack the validity of the drainage tax for a cause which, if well founded, would destroy his own title to the land in contest. The record discloses that the Xeter Realty Company, from whom defendant bought the land, acquired title by virtue of two sales made by the tax collector for delinquent taxes, a part of which was the drainage tax now in contest. It is true the taxes for which the land was sold to the Xeter Realty Company were assessed for years previous to the year for which the drainage tax is now contested. But that circumstance does not affect the case, because the cause of nullity alleged by defendant in this suit would, if well found *427 ed, annul the tax for each and every year for which it was assessed.
Our conclusion is that the judgment appealed from is correct and should be affirmed.
The judgment is affirmed at appellant’s cost.