St. Louis Southwestern Ry. Co. v. Grayson

• Decision Date: 09 January 1904
• Citation: 78 S.W. 777
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. v. GRAYSON, Collector of Taxes.
• Court: Arkansas Supreme Court

78 S.W. 777

ST. LOUIS SOUTHWESTERN RY. CO. v. GRAYSON, Collector of Taxes.

Supreme Court of Arkansas.

January 9, 1904.

Appeal from Greene Chancery Court; Edward D. Robertson, Chancellor.

Suit by the St. Louis Southwestern Railway Company against Addison Grayson, collector of taxes. From a decree for defendant, plaintiff appeals. Affirmed.

The General Assembly of the State of Arkansas, at its session held in 1901 (page 27 of the Acts of 1901), passed an act establishing a drainage and levee district. The first section is as follows: "Section 1. That all portions 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 5 mills on the dollar of the assessed valuation of the same, north of township 18, 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, 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, § 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 Greene county aggregated $651, and 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.

Saml. H. West and J. C. Hawthorne, for appellant. R. E. L. Johnson, W. S. Luna, and Rose, Hemingway & Rose, for appellee.

HUGHES, J. (after stating the facts).

The defendants contend that the act levying this tax (Acts 1901, p. 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 statute of this state relating to the assessment and valuation of railroad property for taxation provides as follows:

"Sec. 6468. Such person, company or corporation shall also state the fair and actual aggregate value of the whole railroad, taking into consideration, in estimating and fixing such value, the entire right of way, as given by the charter of the company or statutes of the state; and also taking into consideration and estimating everything of any character whatever situated upon such right of way, and appurtenant to such railroad, which adds to the value of such railroad as an entire thing."

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