Western Crawford Road Improvement District v. Missouri Pacific Railroad Co.

• Decision Date: 26 February 1923
• Docket Number: 187
• Citation: 248 S.W. 563,157 Ark. 304
• Parties: WESTERN CRAWFORD ROAD IMPROVEMENT DISTRICT v. MISSOURI PACIFIC RAILROAD COMPANY
• Court: Arkansas Supreme Court

248 S.W. 563

157 Ark. 304

WESTERN CRAWFORD ROAD IMPROVEMENT DISTRICT v. MISSOURI PACIFIC RAILROAD COMPANY

No. 187

Supreme Court of Arkansas

February 26, 1923

Appeal from Crawford Chancery Court; J. V. Bourland, Chancellor reversed.

Decree reversed and cause remanded.

E L. Matlock, for appellant.

The court erred in levying the preliminary expenses upon a basis of the benefit assessment which had been made in the district and abandoned, instead of upon the basis of the assessed valuation of the property for State and county taxation, as required by the act creating the road improvement district § 25. 151 Ark. 47; 153 Ark. 5.

Thos B. Pryor, for appellee, Missouri Pacific Railroad Co.; Warner, Hardin & Warner, for appellee, St. Louis-San Francisco Railway Co.

Where the amount of the tax to pay preliminary expenses exceeds the anticipated benefits, such an exaction is not warranted, and where the evidence shows that the tax exceeds the benefits, and the assessment of benefits has been made under the provisions of the act, the only fair and just basis for a tax to pay the preliminary expenses would be the benefits as made by the assessors under oath. 153 Ark. 5, 239 S.W. 722; 107 Ark. 285.

MCCULLOCH C. J. WOOD and HART, JJ., dissent.

OPINION

MCCULLOCH, C. J.

A road improvement district designated as Western Crawford Road Improvement District was created in Crawford County by special statute (unpublished) at the extraordinary session of the year 1920, and there were proceedings under the statute up to the assessment of benefits by the assessors and the filing of the list of assessments with the clerk of the county court for approval by the board of commissioners. The statute contained the usual provisions with reference to giving notice of the assessments and providing for a hearing upon the correctness of the assessments.

On the day provided for the hearing there were numerous protests made by owners of property to further proceedings toward the construction of the improvement, on the ground that the improvement was too expensive, and that the cost would probably exceed the benefits, and the commissioners, without acting upon the list of assessments filed by the assessors, decided to abandon the whole project as being impracticable. There were no further proceedings towards carrying out the constitution of the improvement, but there had been preliminary expenses incurred, and the statute contained the following provision with reference to the payment of such expenses:

"Section 25. In case, for any reason, the improvement contemplated by this district is not made, the preliminary expense shall be a first lien upon all of the lands in the district, and shall be paid by a levy of a tax thereon upon the assessed value for the county and State taxation, which levy shall be made by the chancery court of Crawford County and shall be collected by a receiver to be appointed by said court."

The commissioners of the district, pursuant to the provisions of that part of the statute quoted above, prepared an itemized statement or list of the preliminary expenses, and filed a petition in the chancery court of Crawford County, setting forth in detail all the proceedings in connection with the preliminary expenses incurred, and asked the court to levy a tax upon the property in the district to raise funds for the payment of such expenses. The court disallowed one of the claims, but no appeal has been prosecuted from that part of the decree. The remainder of the claims were approved by the chancery court and ordered paid, but in the final decree rendered the court refused to order payment of assessments in accordance with the directions of the statute quoted above, but ordered that the payments be made in proportion to the anticipated benefits assessed by the board of assessors.

It appeared from the proof that the property of two railroad corporations whose lines of railroad ran through the district would, under the method of assessment prescribed by the statute, amount to more than the whole of the anticipated benefits as assessed by the assessors of the district. It is shown that the assessed benefits of the Missouri Pacific Railroad were $ 1,960, whereas the levy of the tax on that property, according to the "assessed value for county and State taxation," would amount to $ 2,396.62. The board of assessors had assessed the property of the St Louis- San Francisco Railway Company at $ 2,341.50, and it is shown that the amount to be paid on a levy in accordance with the provisions of the statute would...