The following opinions were filed April 6, 1926:
Vinje, C. J.
The appeal presents the sole question whether or not the petitioners are entitled to an additional assessment to pay the principal and interest due on their bonds. The trial court was of the view that the only assessment out of which the principal could be paid was the assessment for construction, and that, at any rate, the petitioners must exhaust their remedy against all the lands affected by the assessment for construction by a sale of the delinquent lands as provided by sub. (4) (d), sec. 89.37, enacted in 1923, before further assessments under sec. 89.44 as amended in 1913 could be made.
Both parties set out in detail for the convenience of the court the drainage laws that in any way affect the question at issue. It is the view of the court that many of them need not be set out or commented upon, because the general scheme of the drainage laws so far as the question here is presented may be summarized in a few words.
Aside from the general public benefit which must inhere in a drainage scheme, the private benefit consists in the drainage of land so as to render it more valuable and productive agriculturally. Since each individual owner of land cannot drain his own effectively, the law permits a number to act jointly as a quasi-public corporation to drain a large area. And thus a drainage district is formed in which all landowners therein become jointly interested and jointly. [332]*332bound. But the law is careful to place limits upon the liability of each owner by providing that it shall not exceed the amount assessed for benefits. It is equally careful to provide means for discharging the indebtedness of the district by requiring assessments to be made to meet it. There are at least two outstanding landmarks in the financial part of the drainage scheme, namely, that the liability of an owner of land therein cannot exceed his assessment for benefits, and the creation of a fund to pay the costs incurred, both principal and interest.
If the view taken by the trial court is correct, then prior to the amendment of sec. 89.37 (4) (d) in 1923 there was no way in which a deficit could be met if a portion of the assessment for construction remained unpaid, for an assessment for construction can be levied only for the amount of principal and interest to become due, on the assumption that each owner pays in full. If any tax remains unpaid there will be a deficit, and sub. (1), sec. 89.44, as it stood before the amendment of 1913, in terms provided only for an additional assessment to pay interest, the provision for an additional assessment to pay principal being added in 1913. The remedy to take a tax deed and sell the lands was not given till 1923.
When it is borne in mind that, in an area as large as the ordinary drainage district and including lands of very different values and very differently benefited, nonpayment of assessments is almost certain to occur, it will be seen that some scheme for making up the deficit occasioned by such nonpayment must exist in order to collect the amount due on outstanding bonds where, as here, they equal ninety-five per cent, of the first total cost of construction.
Another fact must be borne in mind also, and that is that bonds issued nearly up to the total assessment for construction, as they usually are because the district has no money except as it is raised by assessments, would not be salable in the market, for there would be no adequate mar[333]*333gin of security. For these reasons it is apparent that the legislative scheme, whether so in terms expressed or not, must have included the right to additional assessments up to the limit placed by the assessment of benefits for the payment of principal and interest due on lawful debts incurred by the district. That in terms is the scheme since the amendment of 1913 to sub. (1), sec. 89.44.
While it is true that in proceedings governed by statutes nothing can lawfully be done that violates a direct provision thereof, it is equally true that in drainage proceedings, which are declared by sec. 89.03 to be equitable throughout, any lawful remedy contemplated in a contract between a creditor-and the district, not in conflict with the statutes and not contrary to public policy, may be enforced.
If we turn to the bond which constitutes the contract between the petitioners and the district we find these provisions :
“This bond is based upon and constitutes a lien upon and is payable solely out of the proceeds of the special assessment for benefits heretofore legally levied upon the lands in said district, and the said special assessments are hereby irrevocably pledged therefor. And it is hereby certified and recited that all acts, conditions, and things required to be done precedent to and in the location and establishment of said drainage district and in the making and levying of the assessment against the lands of said district benefited thereby, and precedent to and in the issuing of this bond, have been done, have happened, and have been performed in regular and due form of law, and that the total amount of bonds issued on account of said assessment does not exceed the amounts thereof unpaid at the time said bonds are issued; and for the performance of all of the covenants, recitals, -and stipulations herein contained, and for the collection and application of said assessments and of the interest thereon and such other and further assessments authorized or required to provide for the prompt payment of this bond and the interest thereon, the faith, resources, and credit of said drainage district are hereby irrevocably pledged.”
[334]*334Here is first an explicit declaration that the bonds shall constitute a lien upon the special assessment for benefits “heretofore legally levied upon the lands in said district,” and second, that they are payable out of the proceeds derived from such special assessment for benefits. It is true that the term levied is not used in a technical sense. The word assessed would have been better, but there can be no doubt as to the meaning. There is only one kind of an assessment for benefits, and at the time of the issuance of the bonds in question there had been but one assessment for benefits. The word levied, in tax matters, has varied meanings according to how it is used, and its meaning may be gathered from the context. Borner v. Prescott, 150 Wis. 197, 203, 136 N. W. 552, and cases cited. In view of language so clear and explicit and so in consonance with the general scheme of the drainage laws as they existed at the time of the issuance-of the bonds, and especially as they now stand since the amendment of 1913, there is no room for the construction that the assessments for benefits as used in the bonds means the assessment for construction.
The latter part of the above quoted portion of the bond declares that the faith, resources, and credit of the district are pledged “for the collection and application of said assessments and of the interest thereon and such other and further assessments authorized or required.” The words “assessments authorized or required” can refer only to further assessments on the assessment for benefits. There can be no further assessments on an assessment for construction. And the bond expressly provides for further assessments if required.
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The following opinions were filed April 6, 1926:
Vinje, C. J.
The appeal presents the sole question whether or not the petitioners are entitled to an additional assessment to pay the principal and interest due on their bonds. The trial court was of the view that the only assessment out of which the principal could be paid was the assessment for construction, and that, at any rate, the petitioners must exhaust their remedy against all the lands affected by the assessment for construction by a sale of the delinquent lands as provided by sub. (4) (d), sec. 89.37, enacted in 1923, before further assessments under sec. 89.44 as amended in 1913 could be made.
Both parties set out in detail for the convenience of the court the drainage laws that in any way affect the question at issue. It is the view of the court that many of them need not be set out or commented upon, because the general scheme of the drainage laws so far as the question here is presented may be summarized in a few words.
Aside from the general public benefit which must inhere in a drainage scheme, the private benefit consists in the drainage of land so as to render it more valuable and productive agriculturally. Since each individual owner of land cannot drain his own effectively, the law permits a number to act jointly as a quasi-public corporation to drain a large area. And thus a drainage district is formed in which all landowners therein become jointly interested and jointly. [332]*332bound. But the law is careful to place limits upon the liability of each owner by providing that it shall not exceed the amount assessed for benefits. It is equally careful to provide means for discharging the indebtedness of the district by requiring assessments to be made to meet it. There are at least two outstanding landmarks in the financial part of the drainage scheme, namely, that the liability of an owner of land therein cannot exceed his assessment for benefits, and the creation of a fund to pay the costs incurred, both principal and interest.
If the view taken by the trial court is correct, then prior to the amendment of sec. 89.37 (4) (d) in 1923 there was no way in which a deficit could be met if a portion of the assessment for construction remained unpaid, for an assessment for construction can be levied only for the amount of principal and interest to become due, on the assumption that each owner pays in full. If any tax remains unpaid there will be a deficit, and sub. (1), sec. 89.44, as it stood before the amendment of 1913, in terms provided only for an additional assessment to pay interest, the provision for an additional assessment to pay principal being added in 1913. The remedy to take a tax deed and sell the lands was not given till 1923.
When it is borne in mind that, in an area as large as the ordinary drainage district and including lands of very different values and very differently benefited, nonpayment of assessments is almost certain to occur, it will be seen that some scheme for making up the deficit occasioned by such nonpayment must exist in order to collect the amount due on outstanding bonds where, as here, they equal ninety-five per cent, of the first total cost of construction.
Another fact must be borne in mind also, and that is that bonds issued nearly up to the total assessment for construction, as they usually are because the district has no money except as it is raised by assessments, would not be salable in the market, for there would be no adequate mar[333]*333gin of security. For these reasons it is apparent that the legislative scheme, whether so in terms expressed or not, must have included the right to additional assessments up to the limit placed by the assessment of benefits for the payment of principal and interest due on lawful debts incurred by the district. That in terms is the scheme since the amendment of 1913 to sub. (1), sec. 89.44.
While it is true that in proceedings governed by statutes nothing can lawfully be done that violates a direct provision thereof, it is equally true that in drainage proceedings, which are declared by sec. 89.03 to be equitable throughout, any lawful remedy contemplated in a contract between a creditor-and the district, not in conflict with the statutes and not contrary to public policy, may be enforced.
If we turn to the bond which constitutes the contract between the petitioners and the district we find these provisions :
“This bond is based upon and constitutes a lien upon and is payable solely out of the proceeds of the special assessment for benefits heretofore legally levied upon the lands in said district, and the said special assessments are hereby irrevocably pledged therefor. And it is hereby certified and recited that all acts, conditions, and things required to be done precedent to and in the location and establishment of said drainage district and in the making and levying of the assessment against the lands of said district benefited thereby, and precedent to and in the issuing of this bond, have been done, have happened, and have been performed in regular and due form of law, and that the total amount of bonds issued on account of said assessment does not exceed the amounts thereof unpaid at the time said bonds are issued; and for the performance of all of the covenants, recitals, -and stipulations herein contained, and for the collection and application of said assessments and of the interest thereon and such other and further assessments authorized or required to provide for the prompt payment of this bond and the interest thereon, the faith, resources, and credit of said drainage district are hereby irrevocably pledged.”
[334]*334Here is first an explicit declaration that the bonds shall constitute a lien upon the special assessment for benefits “heretofore legally levied upon the lands in said district,” and second, that they are payable out of the proceeds derived from such special assessment for benefits. It is true that the term levied is not used in a technical sense. The word assessed would have been better, but there can be no doubt as to the meaning. There is only one kind of an assessment for benefits, and at the time of the issuance of the bonds in question there had been but one assessment for benefits. The word levied, in tax matters, has varied meanings according to how it is used, and its meaning may be gathered from the context. Borner v. Prescott, 150 Wis. 197, 203, 136 N. W. 552, and cases cited. In view of language so clear and explicit and so in consonance with the general scheme of the drainage laws as they existed at the time of the issuance-of the bonds, and especially as they now stand since the amendment of 1913, there is no room for the construction that the assessments for benefits as used in the bonds means the assessment for construction.
The latter part of the above quoted portion of the bond declares that the faith, resources, and credit of the district are pledged “for the collection and application of said assessments and of the interest thereon and such other and further assessments authorized or required.” The words “assessments authorized or required” can refer only to further assessments on the assessment for benefits. There can be no further assessments on an assessment for construction. And the bond expressly provides for further assessments if required. In the instant case they are required to meet the amount due on the bonds, and there was nothing in the statutes as they stood when the bonds were issued to forbid such further assessment except the inference arising from the fact that the legislature provided for further assessments to pay interest, but not to pay principal. Such [335]*335slight inference, since removed by the legislature, cannot destroy the effect of an express contract that harmonized with the general legislative scheme and was in consonance with a sound public policy, namely, that debts lawfully incurred should be paid when due.
The amendment of 1913 providing for additional assessments does not in any manner affect the contract between the petitioners and the district, but only in terms expresses a remedy not theretofore specifically mentioned. In such case the remedy may be invoked though given subsequent to the execution of the contract. State ex rel. Davis & Starr L. Co. v. Pors, 107 Wis. 420, 427, 428, 83 N. W. 706; Stone v. Little Yellow D. Dist. 118 Wis. 388, 396, 95 N. W. 405; Read v. Madison, 162 Wis. 94, 101, 155 N. W. 954.
It is also quite plain that the legislature conceived of the assessment of benefits as a security fund for assessments for construction, repairs, or maintenance. Sec. 89.04 provides:
“(1) All orders of confirmation made in drainage district proceedings may be modified by the court at any time on such notice as the court may order, but no assessment shall be decreased to the detriment of the owner of bonds or notes which are liens on such assessment.
“(2) This chapter shall neither render more difficult the collection of bonds or notes heretofore issued by any drainage district, nor impair the obligation of any contract made by such district; neither shall any assessment of supplemental benefits nor any reassessment of benefits disturb any assessment for construction previously confirmed by the court while bonds or notes secured thereon are unpaid. Confirmed assessments shall remain liens upon the same lands and claims against the same corporations in the same amounts as when first assessed and recorded until the district bonds and notes based thereon are paid or refunded.”
If the assessment for construction measured the limit of the security, no reassessment of benefits would disturb it unless made below the assessment for construction, and this [336]*336the law forbids. The benefits must equal or exceed the cost. These provisions of the statute would be meaningless but for the fact that the assessment of benefits, and not the assessment for construction, measures the limit of the security fund. So, also, if the contentions of the defendants are correct that the bonds are payable solely out of the assessment for construction, sec. 89.44 as it now stands would be meaningless. It could not be resorted to to pay either interest or principal due on outstanding bonds, for an additional assessment would have to be levied on the assessment of benefits not levied against by the first assessment for construction.
It is suggested that since the bond recites that it is given for the purpose of paying for the cost of construction of drainage in the district that it must be limited in securing payment thereof to the construction fund. This contention was negatived in Fowler v. Superior, 85 Wis. 411, 417, 54 N. W. 800, on the ground that it was immaterial as to what fund the city looked for the payment of the bond when it had pledged its full faith and credit to the payment of it.
It is also urged that it is inequitable to levy further assessments because those who pay will have to pay more than their share — some not having paid at all. This is true, but it is a species of inequity that exists whenever there is a joint liability and one that exists as to the levy of general taxes. Whenever there is a failure to collect all general taxes there is a loss that must be borne by those who pay, but that does not release them from the burden of meeting the obligations jointly due. State ex rel. Soutter v. Madison, 15 Wis. 30. In that case the court said:
“The duty of the common council is continuing, and does not cease with the levying of one tax which is in part unT successful. It ends only when the whole money is collected and the debt actually paid.” See, also, Norris v. Montezuma Valley I. Dist. 248 Fed. 369.
[337]*337The remedy given by the amendment of sec. 89.37 (4) (d) in 1923 is not exclusive nor made a condition precedent to pursuing the remedy which the petitioners seek. Moreover, it seemed to be conceded on the oral argument that no substantial sum could be realized by a sale of lands on which the county has taken tax certificates for the benefit of the district.
By the Court. — Order reversed, and cause remanded with directions to enter an order for an additional assessment or assessments to be apportioned ratably according to the assessment of benefits.