Gulf & S.I.R. Co. v. Ducksworth

• Decision Date: 07 February 1923
• Docket Number: 3893.
• Citation: 286 F. 645
• Parties: GULF & S.I.R. CO. v. DUCKSWORTH, Sheriff, et al.
• Court: U.S. Court of Appeals — Fifth Circuit

286 F. 645

GULF & S.I.R. CO. v. DUCKSWORTH, Sheriff, et al.

No. 3893.

United States Court of Appeals, Fifth Circuit.

February 7, 1923

T. J Wills, of Hattiesburg, Miss., and B. E. Eaton, of Gulfport Miss., for appellant.

R. C Russell, of Magee, Miss., for appellees.

Before WALKER, BRYAN, and KING, Circuit Judges.

KING Circuit Judge.

This case is here on an appeal from a decree dismissing the bill of complaint filed in this case, on the motion of defendants as not stating a case entitling it to any relief, and refusing to grant the injunction prayed in said bill. If the bill was properly dismissed, missed, the injunction was properly refused. In ruling upon the propriety of such dismissal, only the allegations of the bill are for consideration.

Said bill of complaint alleges that prior to its filing (it was admitted on the argument to have been in the year 1917) the board of supervisors of Simpson county, Miss., passed an order creating a road district in the manner authorized by the statutes of the state of Mississippi; said district being about 30 miles long and of a width varying from 2 to 4 miles. A map thereof was an exhibit to said bill. Said district is traversed through its entire length by the railroad of the Gulf & Ship Island Railroad Company, appellant, and is also traversed by a highway practically parallel to said railroad. There is no allegation that said district was not created in accordance with the requirements of the statutes providing for the creation of such districts.

Bonds to an amount not stated in said bill were issued and used in the construction of said highway. The time of their issuance is also not stated therein. The bill alleges that a special tax of 10 mills to be used in paying interest on said bonds and payment of other obligations arising because of said road has been levied for the year 1921 on the property embraced in said road district.

In January, 1922, the said railroad company, appellant, filed its bill of complaint in the United States District Court for the Southern District of Mississippi against D. W. Ducksworth, sheriff and tax collector as aforesaid, and the board of supervisors of said county, seeking to permanently restrain them from levying on the property of complainant and from collecting or attempting to collect said special tax.

The grounds alleged for said injunction were that the said road district, whether intentionally so devised or not, is in law and in fact a fraud prejudicial to complainant's interests, and was laid out so as to take in all of its property for said distance of 30 miles, when said highway to be constructed is of no special advantage to it, but a direct competitor with it for business by means of automobiles for passengers and trucks engaged in the hauling of freight; that the collection of said tax would deprive it of its property without due process of law, and would deny to it the equal protection of the laws, contrary to the Fourteenth Amendment to the Constitution of the United States, and would constitute the taking of its property for public uses without just compensation, contrary to the rights secured to it by the Fifth Amendment of said Constitution; that the total assessed valuation of all the property in said district other than appellant's own is $1,990,460 and that its assessment is $521,430.

The case was heard before the court on a motion for preliminary injunction, and also on motion of defendants to dismiss the bill, because insufficient in point of law to justify the relief prayed for. The court denied the motion for preliminary injunction, and sustained the motion to dismiss the bill, and a decree was taken dismissing the same.

It will be noticed that the only grounds of attack made upon this action of the board of supervisors is not that the said road district was not created in conformity with the laws of Mississippi, or that notices were not given as prescribed by said laws, or that the appellant railroad company did not actually have notice of the purpose to create said district and to issue said bonds, or that it made an objection thereto which was overruled, but that the levy of said tax to pay for the construction of said road and the bonds created for...