Thomas v. Kansas City Southern Ry. Co.

• Decision Date: 13 December 1921
• Docket Number: 5489.
• Citation: 277 F. 708
• Parties: THOMAS, Sheriff, etc., et al. v. KANSAS CITY SOUTHERN RY. CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

277 F. 708

THOMAS, Sheriff, etc., et al. v. KANSAS CITY SOUTHERN RY. CO. et al.

No. 5489.

United States Court of Appeals, Eighth Circuit.

December 13, 1921

James D. Head, of Texarkana, Ark., for appellants.

James B. McDonough, of Ft. Smith, Ark., for appellees.

Before SANBORN and STONE, Circuit Judges, and TRIEBER, District Judge.

STONE Circuit Judge.

This is a complaint by the Kansas City Southern Railway Company and the Texarkana & Ft. Smith Railway Company against Little River drainage and levee district No. 1 (of Sevier county Ark.), Will F. Thomas (sheriff and collector of Sevier county), E. W. Beeson, G. A. Henry, and Frank Ethridge (directors of the above district). The purpose of the action is to enjoin the collection of certain assessments made against the property of the railway companies located within the district. The assessments were for drainage and levee purposes of the district. The district was created by an act of the Legislature of Arkansas. Upon final hearing a permanent injunction was decreed, from which the defendants appeal.

The court found all issues and contentions adverse to complainants, except one, and partially as to another. The court held, as to the first one, that a higher rate of taxation was imposed upon the railways than upon other property owners, by reason of the fact that, while other owners were taxed upon the basis of the assessed value of land lying within the district, the railways were taxed, in addition, upon the value of their franchises and other intangibles. In reaching this conclusion the court felt bound by the decision of this court in Bush v. Branson, 248 F. 377, 160 C.C.A. 387. As to the other, the court held that there were no direct benefits to the property of the railways, except such as might arise from increase of traffic through increased production upon the lands protected by the district. Appellants contest these two conclusions contending that the franchise value is not taxed, and that there were other and direct benefits to the railways. The court correctly construed and applied the above decision of this court in the Bush Case, but since the decree in this case the Supreme Court has reversed this court in the Bush Case (251 U.S. 182, 40 Sup.Ct. 113, 64 L.Ed. 215) on this point. Therefore the ground upon which the court based its decree is insufficient.

Appellees contend, however, that there were other sufficient grounds for the injunction decree, and that this court is not bound by the findings of the trial court adverse to them, but should anew examine those grounds, and, if any are found to be sufficient, should uphold the decree. They contend (a) that the district is illegal and void, because of being uncertain and indefinite in the definition of its boundaries (b) that the district is void, and the assessments illegal, because there are no directors therefor designated by the act of 1917; (c) that both the acts of 1915 and 1917 forming the district are invalid, because no notice nor opportunity for hearing was afforded the owners of land included therein; (d) that the land of appellees is in no manner benefited; (e) that the assessments are wholly arbitrary, unjust, illegal, and void; (f) that, as to appellees, the above two acts are an arbitrary abuse of the taxing power, amounting to confiscation of appellees' property; (g) that the assessments were made without notice to appellees. Of the above contentions, three-- (b), (c), and (g)-- are not within the issues made by the pleadings, and therefore cannot be considered.

The contention that the boundary line of the district is uncertain and indefinite refers only to the northern line of the district. The legislative act of 1915 (Act 186, Sec. 1) fixed this line from the northeast corner of the district as 'west to the line where the lands subject to overflow join the hills or highlands. ' Appellees expressly admit that this would have established 'a definite and fixed line,' which 'could easily be laid out.' The amendatory act of 1917 (Act 79, Sec. 1), however, continued the northern part of the east line of the district, and defined that portion of the boundary and the northern line as 'thence north to the line of the hills, which is entirely above overflow; thence northwesterly, following said line of said hills, to the north line of section 2, township 10 south, range 32 west; thence west to Little river. ' The claim of appellees is that the description 'north to the line of hills' designated no point, because there was no line of hills, and that the further description, requiring the north line to 'follow said line of said hills,' designated no line at all, or any basis for determining any line, because the 'line of said hills' might mean any of several things, including the foot of the hills on either side, or the crest of the hills. The evidence abundantly establishes, and appellees' counsel admit, that there was a rise in ground northerly or northeasterly. This would sufficiently identify what the Legislature meant by 'hills.' The point designated as the northeastern corner of the district, as the point where the eastern line extended north would reach the hills where they were 'entirely above overflow,' was ascertainable from this description, and was therefore sufficiently definite.

As to that part of the description defining the course of the northerly line, the requirement is that it should follow 'said line of said hills.' The 'said line' is 'the line of the hills, which is entirely above overflow ' There is no doubt that this meant the overflow line along the southern slope of the hills. The purpose of the act was to protect lands subject to overflow, and to place the burden of that protection upon the lands so benefited, and no interpretation of the language used is justified, nor can any reasonable doubt be entertained, which would place the line at the overflow line on the other side of the hills. Appellees argue that the uncertainty of the description is established by the facts that this line of hills is broken in several places by streams, and that the engineers, in laying this northerly line of the district, did...