Kansas City, Pittsburg & Gulf Railway Co. v. Waterworks Improvement District No. 1 of Siloam Springs

• Decision Date: 27 October 1900
• Citation: 59 S.W. 248,68 Ark. 376
• Parties: KANSAS CITY, PITTSBURG & GULF RAILWAY COMPANY v. WATERWORKS IMPROVEMENT DISTRICT NO. 1 OF SILOAM SPRINGS
• Court: Arkansas Supreme Court

59 S.W. 248

68 Ark. 376

KANSAS CITY, PITTSBURG & GULF RAILWAY COMPANY v. WATERWORKS IMPROVEMENT DISTRICT NO. 1 OF SILOAM SPRINGS

Supreme Court of Arkansas

October 27, 1900

Appeal from Benton Circuit Court in Chancery, EDWARD S. MCDANIEL Judge.

Cause reversed and remanded.

Read & McDonough and Dodge & Johnson, for appellant.

The burden of proving publication of the ordinance was on appellee. 53 Ark. 368; 56 Ark. 372. The failure to prove it is an absolute defense to this action. Beach, Pub. Corp §§ 503, 1253; 76 Ill. 317; Dill. Mun. Corp §§ 310, 334, 422; Tied. Mun. Corp. § 148; 571 N.Y. 526; 60 N.Y. 16; 46 N.Y. 42; 38 N.J.L. 110; 22 Minn 218; Ell. Mun. Corp. § 218, p. 191; 40 Ill.App. 19. Failure to make publication in a newspaper of the city is also a defense to the action. Sand. & H. Dig., § 5338. There is no authority under the law for taxing railroads for local improvements. The statute (Sand. & H. Dig., §§ 5321, 5338) granting to municipalities the right to tax for such improvements extends it only to real estate, and requires that it be assessed upon the valuation as "made by the county assessor previous thereto;" and railroad property is not assessed by county assessors. Sand. & H. Dig., §§ 6464, 6465, 6471, 6473. Cf. 64 Ark. 432; 51 S.W. 568. Grants of power of taxation to municipalities are to be strictly construed. Cooley, Taxat. 209. Judgment in rem against a particular section of a railroad constructed and operated as an entity can not be enforced as herein attempted. 52 Ark. 529; 31 Ark. 494; 57 S.W. 471; 60 N.W. 767; 63 N.W. 1007.

E. P. Watson, W. V. Tompkins, and M. W. Greeson, for appellee.

The plaintiff was not required to prove the passage and publication of the ordinance. Sand. & H. Dig., § 5341. Such objections should appear, by way of defense, in the answer. 53 Ark. 368; 56 Ark. 372. Railroad tracks are real property. 46 Ark. 330; Sand. & H. Dig., §§ 6466, 6470, 6471. After railroads are valued by the state board of railroad commissioners, the values of land in the respective counties are turned over to the respective assessors, and they assess it. Sand. & H. Dig., § 6473. The railway company's real property, situated in the district, can not be exempted from local assessment. Const. Ark. (1874), art. 19, § 27; ib. art. 16; § 5; 46 Ark. 327, 331. The court has jurisdiction and power to enforce the collection of the tax. Cf. Sand. & H. Dig., §§ 5349, 5350 and 6726, 6727, 6728, 6729.

OPINION

BUNN, C. J.

This is a bill to foreclose a lien on defendant's right of way extending through said improvement district, and the depot buildings and depot grounds situated therein, and to collect the amount of the district assessment made against said property? The answer puts in issue the passage of the ordinance organizing said district, and authorizing and making said assessment.

The defendant first contends that the plaintiff has the burden of proof to show that said ordinances were duly passed, and were published as the law directs.

Section 5341, Sand. & H. Dig., reads thus: "The board [on refusal of any property owner to pay his assessment] shall straightway cause a complaint in equity to be filed in the court having jurisdiction of suits for the enforcement of liens upon real property, for the condemnation and sale of such delinquent property, for payment of said assessment, penalty and cost of suits, in which complaint it shall not be necessary to state more than the fact of the assessment and the non-payment thereof within the time required by law, without any further statement or any steps required to be taken by the council, or the board, or any other officer whatever, concluding with a prayer that the delinquent property be charged with the amount of such assessment, penalty and costs, and be condemned and sold for the payment thereof." Section 5342: "It shall not be necessary to exhibit with the complaint any copy of any ordinance or other document or paper connected with the assessment and collection of the moneys assessed under this act." Then follow the provisions for the enforcement of the assessment, all showing the intention of the legislature to make the procedure the simplest and most expeditious, consistent with the rights of the parties involved, and it is manifest that its intention was to make the few allegations of the complaint a prima facie case, that is, if not controverted in the pleading and by proof, to be sufficient to authorize the decree of condemnation and foreclosure.

But the defendant contends that the proceeding is under section 5336 of Sand. & H. Dig., and not under the general statute, as expressed in sections 5155 and 5157. Section 5336 has no reference to proof of publication, nor upon which party is the burden to show that the ordinance has been duly published. It only defines the duty of the clerk and of the one aggrieved by the assessment. Section 5157 provides for the recording and publication of all by-laws and ordinances of the council, imposing any fine, forfeiture or penalty, and makes no exception. It is a general ordinance on the subject. Section 5155 reads. "The printed copies of the by-laws and ordinances of any municipal corporation, published under its authority, and transcripts of any by-law, ordinance, or of any act or proceeding of any municipal corporation, recorded in any book or entered on any minutes or journal, kept under the direction of such municipal corporation, and certified by the clerk, shall be received in evidence for any purpose for which the original ordinances, books, minutes or journal would be received [and] with as much effect." In construing these sections this court, in Van Buren v. Wells, 53 Ark. 368, 14 S.W. 38, after discussing other questions in the case, said: "The only remaining question is, was the burden on plaintiff to prove that the ordinances were published in the manner prescribed by the statutes? We think not. The statute makes printed copies of the ordinances of any city or incorporated towns, published by the authority of such city or town [and duly certified copies are in evidence in this case], and manuscript copies of the same, copied by the proper officer and having the seal of the city or town attached, evidence of the existence of the ordinances and their contents, and makes a failure to publish a sufficient defense to any suit or prosecution for the fines or penalties imposed by the ordinances." These sections furnish the rule in this case, and the question of burden of proof is settled in the case cited, and rests upon the defendant.

The next contention of defendant is that the city of Siloam Springs and its officers were without power or authority of law to assess its said property for the purpose of local improvements, or to pass the ordinance attempting to create said improvement district, and that th...