Missouri Pacific Railroad Company v. Izard County Highway Improvement District No. 1

• Decision Date: 05 April 1920
• Docket Number: 310
• Parties: MISSOURI PACIFIC RAILROAD COMPANY v. IZARD COUNTY HIGHWAY IMPROVEMENT DISTRICT NO. 1
• Court: Arkansas Supreme Court

220 S.W. 452

143 Ark. 261

MISSOURI PACIFIC RAILROAD COMPANY v. IZARD COUNTY HIGHWAY IMPROVEMENT DISTRICT NO. 1

No. 310

Supreme Court of Arkansas

April 5, 1920

Appeal from Izard Circuit Court; J. B. Baker, Judge; affirmed.

Affirmed.

Troy Pace and Samp. Jennings, for appellant.

1. The cause of action was removable to the Federal Court. It was a suit at law and removable under the Federal Code. Kirby's Digest, § 1513; 38 Ark. 150; 196 U.S. 239; 169 Id. 517; 232 F. 708; 154 U.S. 363. The term "suit" is a very comprehensive one, and applies to any proceeding in a court of justice which the law affords. 2 Peters 449; 141 F. 578; 241 Id. 194. Proceedings for the assessment of taxes are removable. 254 F. 244; 198 Id. 253. Benefit assessments are not taxes in the legislative sense of the word, and the general rules applicable to assessment for general taxes do not apply. 86 Ark. 114; 69 Id. 68. The proceedings in the county court were before a judicial court and was a suit at law and removable.

2. The railroad company is a defendant within the Federal statute. 204 U.S. 570. Proceedings similar to this one in the county court have been held to be judicial proceedings. 134 Ark 292. The special act provides for appeals to the county court and thence to the circuit court. Kirby's Digest §§ 1187-1492. And there tried as actions or suits at law. 204 U.S. 570. The right of removal to Federal courts can not be abridged or limited by the State. 232 U.S. 318. The railroad was the defendant in the lawsuit. 204 U.S. 570; 258 F. 408.

3. The court erred in its declarations of law. Special Act No. 674 Acts 1919, vol. 2, p. 3643, § 8; 86. Ark. 8-19; 64 Ark. 560; 118 Id. 303; 129 Id. 546-8; 50 Id. 129; 239 U.S. 478. There must be benefits or there can be no assessment, and the assessment must not exceed the benefits or probable increase in value by reason of the improvement. 130 Ark. 418, 213 S.W. 750. There must be special and peculiar benefits to the property assessed. 98 Ark. 549. While railroad property is subject to assessment for local improvements, still the inquiry is as to the enhancement in value of the benefits to be derived from the improvement. 209 S.W. 728-730. The circuit court ignored the above principles of law when it refused declarations of law, Nos. 1 and 4, asked by the railroad company; also in refusing Nos. 2 and 3, 230 U.S. 352; also in refusing Nos. 5 and 6. 86 Ark. 19. The cause should have been tried as a suit at law and not as a suit in equity. Kirby's Digest, §§ 1487, 1492.

4. The decision of the circuit court conflicts with the Interstate Commerce clause of the Federal Constitution and statutes. 230 U.S. 350; chap. 92 of 37 Stat. U.S. 701; Comp. Stat., § 8591; 1 Interstate Com. Rep., p. 19; 230 U.S. 352. The proceedings here were administrative and ex parte until the commissioners filed their assessment with the clerk of the county court and summoned the railroad company, and it then became a suit at law, and the case was removable and triable in circuit court according to well defined rules of law as requested in the declarations refused.

John L. Bledsoe and Elbert Godwin, for appellee.

1. Act No. 674, Acts 1919, page 2643, was strictly complied with. Independent of this act, the county court had no jurisdiction, as it is not a court of general jurisdiction but only limited, and its sole duty was to hear complaints against the assessments, to equalize and adjust same.

2. The case was not removable to the Federal court, as it was not a suit at law or in equity within section 28 of the Federal Code, and appellant was plaintiff and not a defendant. 135 U.S. 467; 34 Cyc. 1227; 76 F. 390; 72 Id. 570. See also 30 F. 849 and 13 F. 193; 114 Id. 783; 80 Id. 949; 31 Id. 395; 34 La.Ann. 728; 34 Cyc. 1226; 120 U.S. 450; 136 Id. 586; 115 Id. 487; 34 Cyc. 1226.

This was not a "suit" at all. Cases spra. 4 Neb. 254; 124 U.S. 197; 94 F. 227; 64 F. 897.

3. Appellant is the party plaintiff, and the case is not removable. 64 F. 897. It is a mere statutory administrative proceeding for the assessment of benefits and not a suit removable to the Federal Court.

4. The decision of the circuit court is not in conflict with the Interstate Commerce Act or Constitution of the United States.

5. There was no error in refusing the declarations of law asked. 209 S.W. 726; § 7 of act 674, supra; 255 Ill. 398; 109 S.W. 531; 204 S.W. 630; 121 Ark. 105.

6. The evidence sustains the findings of the court that the assessments are equitable and just. 204 S.W. 630; Acts 1919, p. 2649, § 7; 209 S.W. 725; K. C. So. Ry. v. Road Imp., etc., 139 Ark. 424.

OPINION

WOOD, J.

Appellee is a road improvement district created by Special Act 674 of the General Assembly of 1919, volume 2 (Road), p. 2643. After prescribing the boundaries of the district, and naming the commissioners, the act, inter alia, provides that the commissioners "shall proceed to assess the lands within the district," embracing not merely the lands but all railroads, etc.," on the real estate that will be benefited by the improving of the roads. The commissioners are required "to assess the value of the benefits to each tract according to the improvements and to enter in a book such assessment opposite the description, together with an estimate of the probable cost to the land owner. The assessment is to be filed with the county clerk of Izard County, and the secretary of the board shall thereupon give notice of the filing by publication for two weeks in a newspaper having a bona fide circulation in the county. The form of the notice is prescribed, and it specifies that "all persons wishing to be heard on said assessment will he heard by the county court of Izard County on a certain day named in the notice. It is made the duty of the county court to meet on that day and to hear all complaints, and to equalize and adjust the same, and its determination is final, unless an appeal is taken and perfected within thirty days. The county court at the time the assessment of benefits is filed, or at any subsequent time, shall enter upon its records an order, which shall have all the force of a judgment, providing that there shall be assessed upon the real property of the district a tax sufficient to pay the estimated cost of the improvement. The taxes so assessed are a lien upon all the property in the district.

The commissioners in this case filed their assessments with the county clerk as provided in the act, and gave notice by publication as provided in the act. On the day set for hearing before the county court appellant appeared, and, before any action whatever was taken in the matter by the county court, filed its petition and bond in the usual form to remove said cause to the United States District Court. The county court approved the bond and also the petition as to form, but refused to remove the cause to the Federal court for the reason that it was not such a cause as was removable. The appellant excepted to the ruling of the county court. The county court approved the assessment of the commissioners, and the appellant appealed to the circuit court. In the circuit court at the close of the testimony the appellant asked the court to make certain declarations of law which the court declined to do, and to which ruling appellant excepted.

The circuit court heard the cause and found the facts to be that the commissioners of said road district had made reasonable assessments of all the real estate situated in said district and of the benefits accruing to the same by reason of the construction of the proposed road; that the real property of the Missouri Pacific Railroad Company situated within the incorporate limits of the town of Calico Rock would be benefited by the construction of said road as much or more than the property of any private land owner, and all the real estate within said town would be benefited 30 per cent. of its valuation as found by the board of commissioners, that all other real estate within the second mile or zone would be benefited 27 1/2 per cent., and that in the third mile or zone would be benefited 25 per cent., and that under their assessment of benefits against said railroad company's real property the commissioners of said district had only made an assessment of 20 per cent. of the valuation of said real property as found by the commissioners; that the assessment against said property would only equal 30 per cent. in the first zone, 20 per cent. in the second zone, and 10 per cent. in the third zone, and that said assessment of benefits would not be excessive or unequal to the other assessments made by the commissioners of the other property of the district; that the assessment of benefits made by the commissioners for defendant district relative to the real property of the plaintiff within said district is fair, equitable, just and according to law in every particular.

The court thereupon overruled the exceptions that had been filed by the appellant to the assessment of benefits made by the commissioners and entered a final order approving the assessment and affirming the order of the county court to that effect. The appellant excepted to the rulings of the court and duly prosecutes this appeal.

Section 28 of the Federal Code, as amended, provides: "In any suit of a civil nature at law or in equity at which the District Courts of the United States are given jurisdiction by this title and which are now pending or which may hereafter be brought in any State court, may be removed into the District Court of the United States for the proper district by the defendant or defendants therein being nonresidents of that State."

Appellant contends that under the above section the cause should have been removed to the Federal court. This contention...