Missouri Pacific Railroad Company v. Walnut Ridge- Alicia Road Improvement District

• Decision Date: 08 October 1923
• Docket Number: 153
• Citation: 254 S.W. 1065,160 Ark. 297
• Parties: MISSOURI PACIFIC RAILROAD COMPANY v. WALNUT RIDGE- ALICIA ROAD IMPROVEMENT DISTRICT
• Court: Arkansas Supreme Court

254 S.W. 1065

160 Ark. 297

MISSOURI PACIFIC RAILROAD COMPANY v. WALNUT RIDGE- ALICIA ROAD IMPROVEMENT DISTRICT

No. 153

Supreme Court of Arkansas

October 8, 1923

Appeal from Lawrence Chancery Court, Eastern District; Lyman F Reeder, Chancellor; reversed in part.

Decree reversed in part and cause remanded.

Ponder & Gibson and T. B. Pryor, for appellant.

Act 43 of the special session of 1919 was an act to amend act 426 and confirmed the assessments which had previously been made bye the commissioners and declared them to be the assessment of benefits of the district, thereby repealing by implication § 30 of act 426 forming the district. There is a distinction between the conditions found in 153 Ark. 51, 81 Ark. 562, and 107 Ark. 285, and in the present instance, as here the Legislature had determined the benefits. The assessment on the valuation for State and county purposes is arbitrary and unreasonable. The present case is distinguished from that in 153 Ark. 51, in that there the assessments had not been approved, and were therefore incomplete and furnished no certain means to know just what the assessment would finally have been. Here the assessments were approved by the Legislature. The assessment is arbitrary and unreasonable, and a taking of property without due process of law. The figures as set out in the transcript are conclusive. 153 Ark. 587. The law as attempted to be enforced is an infringement of fundamental rights and in violation of the 14th Amendment to the Constitution of the United States. 204 U.S. 241. This amendment clearly constitutes a limitation on the power of States. 12 C. J. 1194; Id. p. 1195, and cases.

Rose Hemingway, Cantrell & Loughborough, for appellee.

To give the act of 1920 the effect contended for by appellant would be to deprive creditors of any method of collecting their debt, and would be in contravention of art. 1, § 10 of the Const. of the United States. 102 U.S. 206. Such acts levying an ad valorem tax have been sustained many times. 81 Ark. 562; 121 Id. 105; 72 Id. 119; 77 Id. 384; 108 Id. 421; 98 Id. 116; 103 Id. 127, and recently reaffirmed in 157 Ark. 354. For decisions holding that acts or court decisions cutting off constitutional rights or remedies are invalid, see 5 Ark. 506; 25 Id. 625; 24 Id. 91; 15 Howard 304. Controverting the contention of appellant that the assessment against appellant should be upon the assessment of benefits and against the remaining property owners on the ad valorem basis, as a violation of the equality clause of the Constitution, see 32 Ark. 31; 48 Ark. 251; 48 Ark. 370; 57 Ark. 554; 130 Ark. 74; 119 Ark. 203. Only one method is provided for paying the debts of the district, and, if that be stricken down, the claims of the creditors go unpaid. See 150 Ark. 525.

Thos B. Pryor and Ponder & Gibson, for appellant, in reply.

The Legislature has determined for itself the validity of the assessments made on the property of the district, and anything in excess of this amount would be a taking of property without due process of law. See 113 Ark. 364; 107 Ark. 285; 97 Ark. 322; 86 Ark. 1; 51 Wash. 12, 23 L. R. A. (N. S.) 286. As held by the trial court, appellant will be required to pay $ 255.14 more than the benefits assessed against its property. The taxes, in other words, cannot exceed the anticipated benefits.

MCCULLOCH C. J. HART, J., dissents.

OPINION

MCCULLOCH, C. J.

Appellee is a road improvement district created by a special statute enacted by the General Assembly at the regular session of 1919. Road Acts 1919, vol. 2, p. 1752. The statute provided for an assessment of benefits for the purpose of raising funds to pay for the construction of the improvement, but § 30 of the statute provided that, if the improvement should not be made, "all expenses and costs accrued at that time shall be charged against the real property of the district, and the amount necessary to discharge all such indebtedness shall be levied by the chancery court of Lawrence County upon real property in proportion to the county assessment, and collected by a receiver to be appointed by said court."

The assessment made by the assessors of the district, pursuant to the statute, was confirmed and approved by special act of the General Assembly, enacted at the extraordinary session in February, 1920. Later it was ascertained that it was impracticable to construct the improvement, and it was abandoned. This was after there had been preliminary expenses, consisting of engineers' fees and other expenses. After the abandonment of the work, the engineers who performed the preliminary work, and other creditors, commenced an action in the chancery court of Lawrence County, pursuant to § 30 of the statute, supra, for the ascertainment of the amount of their claims and the levy of assessments in accordance with the section mentioned. Owners of land in the district, including the present appellant, intervened in that suit to contest the claims of the creditors. The court rendered a decree ascertaining the amount of the claims against the district, but refused to levy assessments according to the mode prescribed in § 30. The court, on the contrary, discarded that method of assessment and levied a proportionate tax on the assessments of benefits. According to that method of assessment, appellant's tax amounted to the sum of $ 172.58. The benefits on appellant's property in the district were assessed by the district assessors at the total sum of $ 6,637.50.

In resisting the assessments, appellant and the other protestants attacked the validity of the district. There was no appeal from that part of the decree which adjusted and fixed the claims of creditors, but, on an appeal from the other features of the decree, we decided that the attack upon the district by the owners of property was unfounded. In dealing with the question as to the method of assessment, we held that the tax to pay the preliminary expenses must be levied "in proportion to the county assessment," as prescribed by § 30 of the statute. Neterer v. Dickinson & Watkins, 153 Ark. 5, 239 S.W. 722. In disposing of that question we said:

"Even if it be held that the...