St. Louis Southwestern Railway Company v. Grayson

• Decision Date: 09 January 1904
• Citation: 78 S.W. 777,72 Ark. 119
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. GRAYSON
• Court: Arkansas Supreme Court

78 S.W. 777

72 Ark. 119

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. GRAYSON

Supreme Court of Arkansas

January 9, 1904

Appeal from Greene Chancery Court EDWARD D. ROBERTSON, Chancellor.

Affirmed.

Suit by the St. Louis Southwestern Railway Company against Addison Grayson, collector of taxes. The facts are stated by the court as follows:

STATEMENT BY THE COURT.

The General Assembly of the State of Arkansas, at its session held in 1901, page 27 of Acts of 1901, passed an act establishing a drainage and levee district. The first section is as follows:

"Section 1. That all portion of the territory of Clay and Greene counties lying east of the St. Louis Southwestern Railway including the track and roadbed of said railway, and west of the St. Francis river, and north of the southern boundary line of township eighteen north, be established and constituted a drainage and levee district for the purpose of maintaining the levee now in existence in said territory."

Section 11 reads as follows: "There shall be levied and collected, and the same is hereby levied, on all the lands subject to taxation in said drainage and levee district for the year 1901, five mills on each dollar of the assessed value of said lands for the said year for state and county purposes, which levy or tax shall be by the clerks of said counties of Clay and Greene, respectively, extended upon the tax books, for said year, in making out and preparing the same, and the same shall be collected by the collectors of said counties, respectively, at the time of collection of state and county taxes, and of said amount the sum of one mill, or so much thereof as shall be necessary, shall be expended in said levee, and the remainder shall be expended in collecting and maintaining said ditch, and said collectors shall settle with said boards as to the amount collected by them, respectively, and pay the same over to the treasurer of the board upon its order."

Section 12 reads as follows: "If the amount assessed for the year 1901, under the above section, shall not be sufficient to complete and maintain said ditch and levee, said board shall have power to levy such amounts from year to year as they may think proper, not to exceed five mills on the dollar of the assessed value of the land in said district, which shall be placed on the tax books, collected and accounted for, and paid over as is directed by the preceding section. Provided, the taxes of each year shall be levied and assessed and filed in the clerk's office of the counties of Clay and Greene in time for the clerk to enter the same on the tax books for each year the same may be levied or assessed."

Under the provisions of this act the Clerk of Greene county extended against the right of way, roadbed, track, ties and trestles in Greene county, in 1901, a tax of five mills on the dollar of the assessed valuation of the same, north of township eighteen, aggregating about $ 303. On the 4th day of April, 1902, the railway company filed a complaint in the Greene county chancery court against the appellee, Addison Grayson, and alleged that it was a railway company; that it owned and operated a railway line through Greene county; that its line of road had been duly assessed, and that state county, school and road taxes had been duly extended against it, which sum it would pay; that the clerk had indorsed a warrant on the collector's books authorizing and directing him to collect state, county, school, road and ditch and levee taxes; that the property was not liable for the levee and ditch taxes; that the act under which they were levied was unconstitutional and void, and that an attempt to enforce the same was in violation of article 14, section 1 of the constitution of the United States, and an attempt to take property without due process of law; that neither the construction of the levees mentioned, nor the digging of the ditches and drains mentioned, nor the maintenance of either would in any way benefit the plaintiff, or its property (the roadbed, right of way or tracks mentioned), either directly or indirectly; that the levees provided for and mentioned did not come within four miles of any of its property or of its right of way; that the ditch or drain provided for in said act did not run within two miles of its roadbed or right of way and tracks; and that the tax levied was excessive; and prayed for an injunction enjoining the collector from collecting any part of the tax levied for ditch and levee purposes.

The commissioners appointed to carry out the purpose of the act were made parties, and they, with the collector, filed an answer and cross bill, in which they alleged that the tax assessed under the drainage act against all property within the territory in Green county aggregated $ 651; that the plaintiff was liable for $ 303 of that sum; and prayed for judgment for the same.

After the answer and cross bill were filed, by consent, a demurrer was filed to the complaint upon the ground that it did not state facts sufficient to entitle the appellant to the relief for which it prayed.

Upon a hearing the court sustained the demurrer, plaintiff elected to stand upon its complaint, and the same was by the court dismissed at appellant's costs, and judgment rendered in favor of the appellee for the sum of $ 303.24, from which an appeal was taken.

Decree affirmed.

Samuel H. West and J. C. Hawthorne, for appellant.

It was not the legislative intent that taxes be extended against the railway property. 64 Ark. 432. The act under which the levy of taxes is extended, in so far as it attempts to provide for the construction and maintenance of ditches and drains conflicts with § 25, art. 5, Const. 1874, and is invalid. 36 Ark. 177; 20 Oh. St. 18: 2 Dill. 353. The act of February 16, 1901, in so far as it provides for the construction of ditches and drains, was repealed by the act of April 23, 1903. 57 Ark. 508; 50 Ark. 132; 43 Ark. 364; 28 Ark. 317; 31 Ark. 17. The act, by making a direct levy of taxes and not giving the interested party a day in court contravenes the bill of rights. Const. 1874, §§ 13, 21, 23, 29, bill of rights. As to liability of railroad company for local improvements, see 68 Ark. 380; Welty, Assessment, § 142. Property in nowise benefited by local improvements cannot be assessed. 3 Wend. 452; 11 Wend. 149; 69 Pa.St. 353; 18 N.J. 518; 65 Pa.St. 446; 34 Ill. 203; 62 Ill. 427; 37 N.J. 415; 9 Cush. 233; 40 Wis. 315; 3 N.W. 35; 44 Vt. 174; 7 Cush. 277; 69 N.Y. 506; 64 N.Y. 91. The legislature is not the sole judge on the question of benefits. 181 U.S. 324; 182 Mass. 232.

R. E. L. Johnson, W. S. Luna and Rose, Hemingway & Rose, for appellee.

The presumption is in favor of the constitutionality of an act. 32 Ark. 131; 11 Ark. 481; 36 Ark. 171; 39 Ark. 353. The words "roadbed and track" include right of way. 48 N.W. 1040, 1041; 3 Bush, 648. See also Sand & H. Dig. § 6468, 6471. Cf. 68 Ark. 376. The word "track," as used in the later act relating to assessment of railroad property, must be taken to have been used in the same sense as in the previous revenue statute, the acts being in pari materia. Endlich, Int. Stat. §§ 43, 368; 8 How. 516; 137 U.S. 686; 18 Wall. 301; 47 F. 136. Since no method is provided in the later statute whereby the value of the right of way or any part of it can be segregated and omitted from the total valuation of the railroad property, and the value of the residue ascertained, such a construction would render the statute nugatory, and cannot be indulged. 11 Ark. 44; Endlich, Stat. §§ 264, 265. Appellant is not in a position to complain of the excess in its assessment until it has paid what is justly due. 92 U.S. 613; 21 F. 826; 121 U.S. 551; 153 U.S. 252. The matters covered by the statute were within the legislative discretion. 35 Ark. 73; 48 Ark. 371; 66 Id. 576. The act of 1891 (p. 282) does not repeal or affect Sand. & H. Dig. §§ 1203-1232. Nor is the act of 1891 repealed by the later general act of 1903 (p. 278). 50 Ark. 137; Endlich, Int. Stat. § 223; 53 Ark. 339; 88 N.W. 117; 29 Ark. 237. The assessment provided for in the act is made upon the basis of the assessed value of the lands for that year for state and county purposes, and the property owner has his day in court at the time of the making of this assessment. 52 Ark. 529; 19 Ark. 602; Welty, Assessments, § 20. However, when a direct assessment, fixed in amount, is made by the legislature, no notice is required, as in the case of an ad valorem assessment of property made by some other agency of the state. 170 U.S. 45; 111 U.S. 701; 170 U.S. 304, 311; 100 N.Y. 585; 125 U.S. 345. See, generally, upon legislative power to authorize ad valorem assessments for special purposes. 164 U.S. 176; 181 U.S. 324; 170 U.S. 45; 172 U.S. 269; 143 U.S. 546; 167 U.S. 589; 97 U.S. 687, 682; 182 Mass. 232. The burden is on the party attacking the act to show that the legislature transcended its powers. 56 Ark. 528, 584. The presumption is in favor of the proper and correct exercise of its powers by the legislature. 52 Ark. 107; 55 Ark. 532; 170 U.S. 55; Cooley, Taxation, 48, 64; 29 Wis. 400; 30 A. 43; 41 N.Y. 140; 58 Pa.St. 320; 68 S.W. 964; Welty, Assessments, § 250, p. 402.

OPINION

HUGHES, J. (after stating the facts).

The defendants contend that the act levying this tax (Acts 1901 page 27) is not broad enough to be construed to include the right of way; that the words "including the track and roadbed of said railroad," as used in the first section of said act defining the boundaries of said district, do not include the real estate or right of way. We are of the opinion that the words the "roadbed and track," as used in the said first section, were intended by the legislature to, and do, include the right of way. The...