
    No. 24,311.
    George L. Hamm et al., Appellants, v. The Board of County Commissioners of the County of Jefferson, Appellee.
    
    SYLLABUS BY THE COURT.
    1. County Roads — Improvements—Partially Completed — Levy of Taxes. The county commissioners may make the eighty per cent levy upon property . in a road benefit district provided for by section 2, chapter 218, Laws of 1921, when a section of the road has been completed, or upon the completion of the grading, draining and culverts forming a part of the improvements upon the entire road petitioned for.
    2. Same — Levying Taxes — Method Used in Determining Benefits Accruing to Separate Tracts of Land — Compliance with Statutes. The county commissioners levied an assessment upon the several tracts of land in a road benefit district by determining the benefits accruing through considering the value of the land, the value of the improvements, and the nearness and accessibility of the respective tracts to the road. Held, to be a proper compliance with the statute.
    3.Same. An assessment levied upon the several tracts of land in a road benefit district according to the benefits accruing to the real property and improvements thereon made by the county commissioners using their best judgment, which resulted from honest and intelligent consideration, will not be set aside by injunction.
    Appeal from Jefferson district court; Martin A. Bender, judge.
    Opinion filed April 7, 1923.
    Affirmed.
    
      Oscar Raines, and A. E. Crane, both of Topeka, for the appellants.
    
      W. O. Worswick, county attorney, H. T. Phinney, of Oskaloosa, and O. P. May, of Atchison, for the appellee.
   The opinion of the court was delivered by

Harvey, J.:

This is a suit by taxpayers in a hard-surface road benefit district to enjoin the eighty per cent assessment made by the board of county commissioners. At a trial before the court judgment was for defendants, and the plaintiffs appeal. Three questions are presented. First, that the county commissioners had no jurisdiction to make the assessment at the time it was made; second, that in making the assessment the county commissioners did not determine the benefits accruing to the real property and improvements within said district, and third, that the assessment made by the county commissioners is arbitrary, illegal, unjust, and excessive. We will consider these in their order.

That portion of the statute under which the assessment in question was made, being a part of section 2, chapter 218 of the Laws of 1921, reads as follows:

“Upon completion of a section of road which forms a part of the improvement of a road petitioned for under the' provisions of this act, or the grading, draining and culverts, forming a part of (the improvement under a petition specifying that the road shall be hard-surfaced, the board of county commissioners may levy assessments against the lands benefited thereby for eighty per cent of the benefit district’s share of the cost of the completed work and shall levy additional assessments for the remainder of the cost, equitably adjusting the apportionments when the entire improvement is completed.”

Appellants contend that the section of the road was not completed, and hence that the commissioners had no jurisdiction to levy the eighty per cent assessment. It will be noted that the statute names two conditions under which the assessment may be levied; first, “upon completion of a section of road,” or, second, upon completion of “the grading, draining and culverts forming a part of the improvements under a petition specifying that the road shall be hard-surfaced.” The evidence was that the grading, draining and culverts forming a part of the improvements under the petition were completed. This gave the board jurisdiction to make the levy. The section of the road was, in fact, not completed, though it was substantially so, and it was completed within a few days. In view of the fact that one of the conditions prescribed by the statute was fully complied with, it is not necessary for us to consider the question of whether or not the substantial compliance with the other condition of the statute would authorize the levy.

Appellants contend that the levy of the assessment is illegal for the reason that the county commissioners did not determine the benefits accruing to the real property and improvements within the benefit district in making the levy. The record does not bear this interpretation. Briefly stated, this is the method the commissioners used: The commissioners personally went over the benefit district and upon actual view of each tract of land placed an appraisal 'value thereon. This appraisal value was based upon the actual or market value of the land as determined by its quality for agricultural purposes, without regard to its improvements, and without regard to its location as to cities, schools, churches, etc. The improvements were also appraised, by just what method is not shown, but as appellants make no complaint of that, we assume it was by a proper method. Then the commissioners established zones throughout the benefit district and each tract of land in the benefit district was placed in a designated zone. This was determined by the location of the land as regards its nearness and accessibility to the road in question and the benefits accruing thereto. Lands immediately adjoining the road, most accessible to it, and deriving the greatest benefits-therefrom, were placed in zone “A.” Lands a little farther from the road, not so accessible to it nor deriving so much benefit from it as the lands in zone “A,” were placed in zone “B.” Other lands farther from the road, and with the.same considerations in view, were placed in other zones. By a formula, of which no complaint is made, the appraisal values of the lands and the improvements were adjusted to the zones in which the lands were located and the result was used as the basis for the levy and assessment. By this method the assessment was placed upon the value of the land and improvements, and its nearness to and accessibility to the improved road, and the benefits accruing to the land by reason thereof. In other words, the commissioners considered that valuable -lands would have greater benefits accruing to them than lands of less value; that lands well improved would have greater benefits than lands poorly improved or unimproved; and that the benefits accruing to any tract of land in the benefit district would depend to a substantial degree upon the nearness of the land, or its accessibility to the improved road. All these matters were taken into consideration in making -the levy and assessment as to each tract of land, and the method is a full compliance with the statute (Laws 1921, ch. 218, § 2), the pertinent portion of which reads as follows:

“The county commissioners shall . . . apportion the cost thereof as follows . . . twenty-five per cent among the several tracts of land within the benefit district . . . according to the benefits accruing to the real property and improvements thereon.”

Appellants contend that the assessments levied upon their respective tracts are arbitrary, illegal, discriminatory and unjust, and for that reason should be enjoined. We have examined the record carefully and are unable to find anything warranting this position. The entire record discloses that the commissioners and other county officials spent a great deal of time and took much care to investigate the proper method of equitably determining the assessments as to various tracts. Some of the officials visited the state highway department and there investigated methods that were used in other road benefit districts and counseled with the officials of the highway department and others as to a proper and just method to pursue. The commissioners took the time to go over the benefit district and upon, or in actual view of, each tract of land, to consider, not only its appraisal value as before stated, but to judge as to each tract in what zone it should be placed with reference to the benefits accruing to that land by reason of the road. The commissioners levied the largest part of the assessment on lands in zone “A,” the next largest in zone “B,” and so on'through the various zones. It is possible that the portion, for instance, which they assessed to zone “A” is a little larger than it should have been compared to what was assessed to zone “B” or some other zone; but those are matters which the commissioners were in much better position to judge than we are. They took the time and gave it their personal attention. There is no fraud charged against their conduct in the matter, nor any intimation that they were not endeavoring to make a just and equitable levy and assessment. We see no reason for setting it aside. The judgment is affirmed.  