Missouri Pacific Railroad Company v. Conway County Bridge District

• Decision Date: 26 January 1920
• Docket Number: 139
• Citation: 218 S.W. 189,142 Ark. 1
• Parties: MISSOURI PACIFIC RAILROAD COMPANY v. CONWAY COUNTY BRIDGE DISTRICT
• Court: Arkansas Supreme Court

218 S.W. 189

142 Ark. 1

MISSOURI PACIFIC RAILROAD COMPANY v. CONWAY COUNTY BRIDGE DISTRICT

No. 139

Supreme Court of Arkansas

January 26, 1920

Appeal from Conway Chancery Court; Jordan Sellers, Chancellor affirmed.

STATEMENT OF FACTS.

The Missouri Pacific Railroad Company brought this suit in equity against J. M. Gordon, as sheriff of Conway County and the Conway County Bridge District to enjoin them from taking any further steps towards enforcing local assessments upon the property of the company for the purpose of erecting a bridge across the Arkansas River within the limits of the proposed district.

The validity of the act is attacked in the bill, and it is also alleged that the assessment was unlawful and void for the various reasons which will be stated in the opinion.

The defendants in their answer asserted the validity of the statute and entered a plea of res adjudicata. The facts upon which the defendants rely to sustain their plea of res adjudicata are substantially as follows:

The Legislature of 1917 passed a special act forming all of Conway County into an improvement district for the purpose of building a highway bridge at a point to be selected by the commissioners of the district. Acts of 1917, vol. 1, p. 314. The line of railroad of the plaintiff lies north of the Arkansas River and runs parallel with the river east and west through the county. Pursuant to the terms of the act the commissioners organized the district and appointed assessors to assess benefits on the real property within the district including the right-of-way of the railroad company. The assessors divided the district into five beneficial zones and assessed the property in each zone at a different percentage, according to its proximity to the bridge. The assessments of benefits to the property of the railroad company was placed at $ 68,975.

Section 7 of the act provides that any property owner who deems himself aggrieved by the action of the board of assessors may take an appeal from the action of the assessors to the board of commissioners within thirty days.

It also provides that the commissioners shall hear all appeals and determine the same. The section further provides that the property owner may appeal from the findings of the commissioners to the circuit court within sixty days by filing his complaint in the circuit court setting up the facts and serving notice upon the chairman of the commissioners and that such complaint shall be heard and determined as any action at law.

The railroad company, deeming itself aggrieved by the assessment of benefits, first appealed from the board of assessors to the commissioners and then from the commissioners to the circuit court. In the circuit court a complaint was filed as required by the statute, and in the complaint the constitutionality of the statute was attacked on several grounds. The complaint also alleged that the action of the board of assessors amounted to a confiscation of the property of the railroad company; that its action in assessing the benefits on the property of the railroad company was arbitrary; that the amount assessed was much greater than the benefits that would be derived from the erection of the bridge, and that the assessment of benefits was unreasonably high.

The district interposed a special demurrer to the complaint in the circuit court, which was sustained in part, and testimony was taken and heard by the court on the remaining issues. The judgment of the circuit court is full and complete and shows the action of the court. It is as follows:

"Now on this day, a regular day of the Conway County Circuit Court, comes on this cause for consideration and comes the plaintiff, Missouri Pacific Railroad Company, by T. B. Pryor and W. P. Strait, its attorneys, and comes the Conway County Bridge District, J. J. Scroggin and other defendants, by Sellers & Sellers, their attorneys, and this cause is submitted to the court upon the complaint of the plaintiff the demurrer of the defendants and oral testimony before the court, and the court, being well and sufficiently advised, doth find, that, acting under the provisions of the act of the General Assembly of the State of Arkansas creating the Conway County Bridge District, the assessors of said district assessed against the plaintiff railroad company's line of railroad through Conway County, in accordance with the law creating the said district, as benefits the sum of approximately $ 88,000; that the plaintiff filed exceptions to such assessment before the board of assessors for the district, and said exceptions were by said board of assessors overruled, and the assessment left as first made; that thereafter within the time allowed by act the plaintiff appealed from the action of the board of assessors of said district to the board of commissioners, as provided in the act, and that upon a hearing before said board of commissioners the said assessment against the said plaintiff said property was reduced to the sum of $ 68,975 as the amount of benefits to the said plaintiff railroad company's said property. That subsequent to such hearing and within the time allowed by said act the plaintiff filed in this court its complaint alleging, among other things, that the said railroad company was not and could not be benefited by the construction of the bridge contemplated in said act, and that, if said plaintiff and its property was benefited at all, said benefit as fixed by the board of assessors of board of commissioners was in excess of the amount of benefits which would actually be received.

"That the defendant filed a demurrer to said petition to all parts thereof except upon the issue that the said property of the said plaintiff would not be benefited by the improvement and that the benefits as assessed were in excess of the true benefits, and upon consideration of the demurrer the court sustained the same and held that the plaintiff was only entitled to have heard the question as to whether or not the property of the plaintiff as assessed was benefited at all, and, if so, the extent of such benefits.

"The defendant thereupon filed a second demurrer to the complaint upon the grounds that no facts were alleged upon which to base the conclusion set out and that the complaint after being amended was insufficient to constitute a cause of action.

"Upon consideration the second demurrer was overruled by the court. Upon consideration of the testimony the court finds that the said plaintiff's property, being its line of railroad through Conway County, will be benefited by the construction of the said bridge contemplated in said action and that the amount of benefits in the sum of $ 68,975 is not and will not be excessive.

"Wherefore, it is by the court considered, ordered and adjudged that plaintiff's complaint be and the same is hereby dismissed; that the acts of the board of assessors and board of commissioners in fixing the benefits against the property of plaintiff in the sum above mentioned be and they are hereby confirmed and the amount of benefits accruing to and which will accrue to the property of plaintiff as set out in the complaint by reason of the construction of the improvement is fixed at the sum of $ 68,975." Other facts will be stated in the opinion.

The decree of the chancellor recites that a demurrer was sustained to that portion of the complaint which seeks to raise the question of the justness or equality of the assessment of benefits against the property of the railroad company and that the plea of res adjudicata filed by the defendants is sustained.

The plaintiff has appealed.

Decree affirmed.

Thos. B. Pryor and W. P. Strait, for appellant.

1. The complaint stated a good cause of action, and appellant was entitled to the relief prayed, and it was error to sustain the demurrer and the plea of res judicata. Const., art. 16, § 9; 32 Ark. 676; 36 Id. 281; 37 Id. 649; 30 Id. 101. Injunction against illegal taxes is the proper remedy. 46 Id. 471. Railroads are not assessed like other real estate for general taxation, but higher, and this results in the assessment of benefits higher in proportion than other real property and denies them the equal protection of the law as to uniformity. 62 Ark. 461; 127 Id. 347; 92 Id. 492; 86 Id. 1. The assessment was arbitrary and void. 55 N.Y. 604; 48 L. R. A. 851; 86 N.Y.S. 597; 42 Id. 87.

2. Legislatures can not arbitarily exercise powers affecting property rights, assessments or taxation, and these matters are open to judicial investigation and their methods are open to periodical investigation and determination. 42 Ark. 87; 98 Id. 116; 83 Id. 344; 81 Id. 562; 83 Id. 54; 87 Id. 322; 172 U.S. 269; 181 Id. 324; Ib. 396; McGehee on Due Process of Law, 248; 85 Ark. 12; 98 Id. 117.

No objection was made that the facts alleged were not sufficiently pleaded nor could this be raised by demurrer, but only by motion to make more definite. 83 Ark. 54; 77 Id. 29; 27 Id. 34; 96 Id. 163. Every fair and reasonable intendment must be indulged to support a pleading. 101 Ark. 35; 96 Id. 963. If the pleading is vague, inadequate or uncertain, the remedy is by motion to make more definite. 91 Ark. 400; 87 Id. 136; 98 Id. 136.

The valuation in assessment of benefits must be uniform and not arbitrary. 48 Ark. 252; Ib. 383; 49 Id. 202; 52 Id. 112; 56 Id. 356; 63 Id. 584; 99 Id. 504. The principle contended for here is sustained in 37 S.Ct. U.S. 673. See also 101 U.S. 153; 60 U.S. App. 166; 44 Ill. 229; 54 N.H. 455; 58 Id. 38; 63 Conn. 321; 54 Kan. 781; 70 Iowa 87; 152 Mass. 372. The decree should be reversed and a perpetual injunction granted.

Calvin Sellers, for appellee.

There was no error in sustaining the demurrer and plea of res judicata. These questions have...