Kansas City Southern Ry. Co. v. Road Imp. Dist. No. 6

• Decision Date: 14 July 1919
• Docket Number: (No. 89.)
• Parties: KANSAS CITY SOUTHERN RY. CO. v. ROAD IMP. DIST. NO. 6 OF LITTLE RIVER COUNTY.
• Court: Arkansas Supreme Court

215 S.W. 656

KANSAS CITY SOUTHERN RY. CO. v. ROAD IMP. DIST. NO. 6 OF LITTLE RIVER COUNTY.

(No. 89.)

Supreme Court of Arkansas.

July 14, 1919.

Appeal from Circuit Court, Little River County; Jas. S. Steel, Judge.

Objections by the Kansas City Southern Railway Company to assessments against its property made by the Road Improvement District No. 6 of Little River County, created under Acts 1915, p. 1400, were overruled, and the railway company appealed to the circuit court. From a judgment sustaining the demurrer to those paragraphs of the company's plea attacking the validity of the statute and proceedings creating the district and approving the assessments, the railway company appeals. Affirmed.

James B. McDonough, of Ft. Smith, for appellant.

A. D. Du Laney and John J. Du Laney, both of Ashdown, for appellee.

McCULLOCH, C. J.

Pursuant to the terms of Act No. 338 of the legislative session of 1915, the county court of Little River county, by order entered on May 14, 1918, on petition of property owners created an improvement district in that county designated as "Road Improvement District No. 6 of Little River County," for the purpose of constructing a road running northward from Ashdown, the county site, about 11 or 12 miles. There was no appeal from said order of the county court creating the district. The road to be improved runs parallel with the line of railroad of the Kansas City Southern Railway Company, and 9.7 miles of the railroad right of way is included in the district, as well as station property, and, after the assessment of benefits was made by the board of assessors and a certificate thereof filed with the clerk of the county court pursuant to section 13 of the aforesaid statute, the date for hearing on the assessments before the county court was set for August 23, 1918, and appellant appeared in the county court for the first time and made objections to the assessment against the railroad property. The county court overruled the objections to the assessment, and appellant prosecuted an appeal to the circuit court. In addition to the objections to the fairness and correctness of the assessments, appellant filed a written plea attacking the validity of the organization of the district on various grounds, viz.: That the original petition for the improvement filed in the county court did not contain a majority of the property owners, that the petition specified certain tracts of land to be embraced in the district which were omitted by the order of the county court, that the road to be improved was not a public road, that the descriptions of the boundaries of the district set forth in the original petition were vague and uncertain, and that the notice of the hearing on the petition was not published as provided by law. There were several other objections to the validity of the order, which it is unnecessary to set forth. The plea also attacked the fairness and uniformity of the assessments.

The circuit court sustained a demurrer to those paragraphs of appellant's plea attacking the validity of the statute and the proceedings creating the district, and confined the hearing entirely to the question of the correctness of the assessments. Testimony was introduced by both parties on that issue, and judgment was entered by the circuit court approving the assessments as made by the board of assessors and approved by the county court.

The first contention is that the court erred in sustaining the demurrer to appellant's plea attacking the validity of the district. Counsel for appellant relies on the decision of this court in the case of Lee Wilson Co. v. Road Improvement District No. 1, 127 Ark. 310, 192 S. W. 371, where on appeal from the assessment of benefits in a road improvement district formed under this same statute, we said:

"Appellants made no attack upon the organization of the appellee district in the court below. But as the organization of the district was essential to any valid local assessments and levies, the question as to whether there was such organization was one of jurisdiction which appellants have the right to raise at any time."

Counsel for appellee rely on the decision of this court in Missouri Pacific Railroad Co. v. Conway County Bridge District, 134 Ark. 292, 204 S. W. 630, where, under a special statute creating an improvement district and authorizing an appeal by property owners from the assessment of benefits, the court held that on such an appeal a property owner could not attack the validity of the statute creating the district, and that the inquiry on such appeal was confined to the ascertainment of the correctness of assessment of benefits; the property owners being left to other remedies in attacking the validity of the organization of the district. The latter case was followed and the same rule applied in the case of Chicago, Rock Island & Pacific Railway Co. v. Road Improvement District No. 1 of Prairie County, 209 S. W. 725. In that case the improvement district was created under a special statute (Acts 1913, p. 864) authorizing the creation of road improvement districts in Lonoke and Prairie counties. That statute was similar to Act No. 338 of the session of 1915, except that it applied only to the two counties mentioned.

It is contended by counsel for appellant that those cases are reconcilable with each other, and that appellant's right to attack the validity of the order creating the district is sustainable under the decision in Lee Wilson Co. v. Road Improvement District No. 1, supra, without conflicting with the decisions in the later cases which arose under special statutes. It is true, as before stated, that the two last-mentioned cas...