St. Louis Southwestern Ry. Co. v. Commissioners of Road Improvement Dist. No. 2 of Lafayette County, Ark., 5454

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Citation: 265 F. 524
• Docket Number: 5454,5470.
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. v. COMMISSIONERS OF ROAD IMPROVEMENT DIST. NO. 2 OF LAFAYETTE COUNTY, ARK. COMMISSIONERS OF ROAD IMPROVEMENT DIST. NO. 2 OF LAFAYETTE COUNTY, ARK., v. ST. LOUIS SOUTHWESTERN RY. CO.
• Decision Date: 29 April 1920

265 F. 524

ST. LOUIS SOUTHWESTERN RY. CO.
v.
COMMISSIONERS OF ROAD IMPROVEMENT DIST. NO. 2 OF LAFAYETTE COUNTY, ARK.

COMMISSIONERS OF ROAD IMPROVEMENT DIST. NO. 2 OF LAFAYETTE COUNTY, ARK.,
v.
ST. LOUIS SOUTHWESTERN RY. CO.

Nos. 5454, 5470.

United States Court of Appeals, Eighth Circuit.

April 29, 1920

Rehearing Denied August 2, 1920.

In Error to the District Court of the United States for the Western District of Arkansas; Frank A. Youmans, Judge. [265 F. 525]

In No. 5454:

T. J. Gaughan, of Camden, Ark. (Daniel Upthegrove and J. R. Turney, both of St. Louis, Mo., on the brief), for plaintiff in error.

Henry Moore, Jr., of Texarkana, Ark., for defendants in error.

In No. 5470:

Henry Moore, Jr., of Texarkana, Ark., for plaintiffs in error.

Gaughan & Sifford, of Camden, Ark. (Daniel Upthegrove and J. R. Turney, both of St. Louis, Mo., on the brief), for defendant in error.

Before SANBORN and CARLAND, Circuit Judges, and VAN VALKENBURGH, District Judge.

CARLAND, Circuit Judge.

This is a suit brought by the commissioners of road improvement district No. 2 of Lafayette county, Ark., hereafter called plaintiffs, against the St. Louis Southwestern Railway Company, hereafter called defendant, to recover the sum of $49,765.80, being the amount assessed as benefits by the board of assessors of said district against the real estate, buildings, and roadbed of defendant, situated therein. The proceeding out of which this suit originated was commenced by the organization of the district under what is known as the 'Alexander Road Law' of Arkansas. After the organization of the district the county court appointed three persons to act as commissioners. These commissioners formulated plans, ascertained the cost of the improvement, and filed the same in the office of the county clerk. Thereupon the county court appointed three persons to act as a board of assessors for said district. The persons appointed as assessors met at a time designated by the president of the board of commissioners, and assessed the benefits which in the judgment of said board would be received by the defendant by reason of the improvement contemplated, as it would affect the lands [265 F. 526] and other property of defendant in said district. This assessment amounted to the sum sued for in this suit as above stated, and the same was duly certified by said board of assessors to the board of commissioners. The commissioners certified and filed the same in the office of the county clerk.

The county clerk gave public notice as provided by law, and therein stated that said assessment of benefits had been filed in his office, and that any person, firm, or corporation aggrieved by reason of any assessment therein made should appear before the county court on a date to be fixed by the court for the purpose of having any errors adjusted or any wrongful or grievous assessment corrected, and that all grievances or objections to said assessments should be presented to said court in writing. On the 22d day of May, 1918, the county court of Lafayette county, Ark., fixed June 28, 1918, as the date for hearing all exceptions of persons, firms, or corporations to the assessment of benefits as made by the board of assessors of said district. On June 27th, the day before the hearing fixed by the county court, the defendant duly removed the case against it to the United States District Court for the Western District of Arkansas, on the ground of diversity of citizenship. A motion to remand the case to the county court was made in the court below by the plaintiffs, on the ground that the proceeding was not a suit. The motion was denied. This ruling and the reduction of the amount of benefits are assigned as errors by the plaintiffs. The defendant assigns as error the refusal of the court below to further reduce the amount of benefits. After the motion to remand was denied, the case subsequently was brought to trial upon the assessment of the board of assessors as certified to the county court by the board of commissioners, the amended exceptions of the defendant to said assessment, and the reply to said exceptions by the plaintiffs.

The defendant alleged, among other things, that the assessment was excessive and exorbitant, and greatly and substantially exceeded the benefits which would be received by defendant's property by reason of the construction of the contemplated improvement; that said assessment was arbitrary and discriminatory as compared with the assessment made by the board of assessors upon other property within the district; that the maximum benefits...