Hart, J.,
(after stating the facts). It will be perceived from the statement of facts that the railroad company sought relief from the action of the assessors by appealing from the finding of the board of assessors to the board of commissioners and then to the circuit court as provided by the statute. In the circuit court a complaint was filed by the railroad company as required by the statute. The circuit court sustained a demurrer to a part of the complaint and tried the remaining issues on the pleadings and the evidence introduced. We have set out the judgment of the circuit court in full in our statement of facts, but for convenience again set out that part of it which is most material to the issues raised by the plea of res adjudicata in the present case. It is as follows : “Now on this day comes the plaintiff by its attorneys, T. B. Pryor and W. P. Strait; comes the defendant, Conway County Bridge District, by attorneys, Sellers & Sellers, and this cause coming on for hearing upon the demurrer to plaintiff’s petition, pleading in this cause, and the court being well and sufficiently advised, it is ordered and adjudged that the demurrer to the petition, pleadings of the Missouri Pacific'Railroad Company, be and the same is hereby sustained to all the provisions and matters pleaded except that feature and provision alleging that plaintiff was not benefited and that the benefits assessed are excessive and more than the actual benefits received, to which finding and ruling the plaintiff, Missouri Pacific Railroad Company, at the time excepted and saved exceptions.”
The railroad company duly prosecuted an appeal from the judgment of the circuit court to this court, and the judgment of the circuit court was affirmed. The .opinion is reported in 134 Ark 292, under the style of Mo. Pac. Rd. Co. v. Conway County Bridge Dist.
Upon the present appeal there is a dispute between the parties as to what was decided in that case, and it is also strongly and earnestly insisted by counsel for the plaintiff that in certain respects the holding of this court in that case was not in accord with the issues raised by the appeal. In short, counsel claim that the court went beyond the issues and decided matters not raised by the appeal. On this point the case at bar must be determined by the opinion and statement of facts on the appeal in the case of the circuit court reported in 134 Ark. 292. Whatever the court held on the appeal in that case was determined in the court below is conclusive in the present suit. If this were not so, litigation might be 'interminable, and a judgment settling the rigits of the parties would be only a starting point for new litigation. In the opinion in that case, in discussing what issues were presented by the appeal, the court said: “Therefore, the only question for decision is whether or not the evidence is legally sufficient to support the finding of the circuit court as to the amount of assessment against appellant’s property, and the uniformity of the assessment with those imposed upon other property in the district.”
In making the assessment in that case the assessors divided the district into five beneficial zones and assessed the property in each zone at a different percentage according to its proximity to the bridge. It is now insisted that this was an arbitrary method of assessing the property of the railroad, and that there was no issue on this point made by the pleadings in the case in the circuit court. It is sufficient answer to this to say that this method of assessing the property was distinctly referred to, discussed and approved in the opinion on the appeal in that case. Hence the present suit is concluded in this respect by that opinion.
It is also insisted in the case at bar that the assessment of benefits was arbitrary and much greater than the benefits received by the railroad company. It is now insisted that this issue was not raised by the appeal in that case. We repeat that this issue was discussed and determined by the court on that appeal. The court expressly recognized that the. board of assessors had no right to arbitrarily fix a method of assessment which would not result in the ascertainment of the true benefits so as to work out uniformity in the assessment; but the court expressly held that the assessors had not done so and the question can not be again litigated. Moreover, this holding was in accord with the previous decisions of this court. In Lee Wilson Co. v. Road Imp. Dist. No. 1, 127 Ark. 310, the court had under consideration the provisions of the general law for the organization of road districts. In that case provision was made by the statute for an appeal to the county court to hear and determine the justness of any assessment of benefits and the court was authorized to equalize, lower or raise any assessments upon a proper showing to the court. The property owner there pursued the statutory- method of appealing from the judgment of the county court making the assessment, and contended on appeal to this court that the assessors in making the assessment of benefits to accrue to the land owner acted in an arbitrary manner, which resulted in an assessment far in excess of any benefits which would be derived from the improvement and which was so discriminatory and confiscatory as to amount to taking its property 'without due process of law. The court held that the evidence showed that the assessments of benefits was arbitrary and not made in the manner required by the 'statute. It held that the court erred in sustaining the assessment and reversed the judgment of the circuit court which had sustained the judgment of the county court in -making the assessments.
In the present case the assessors assessed the property of the railroad upon a mileage basis which was in the manner pointed out by the statute. This court affirmed the judgment of the circuit court sustaining the assessment in this respect because the statute had been followed in making the assessment.
As we have just seen, the holding is in accord with the rule laid down in the Lee Wilson Company case, although that case was not referred to in the opinion on the appeal in the circuit court case. It is true that the Lee Wilson Company case was subsequently overruled in so far as it held that the validity of the statute could be attacked on appeal under the statute from the finding of the bodies authorized to make the assessment of benefits ; but it was not overruled in so far as it held that upon an appeal under the statute from the assessment of benefits the court could determine whether the property was not benefited at all, whether the benefits assessed exceeded the benefits received, whether the assessment of benefits was arbitrarily made, or in fact whether the assessment of benefits amounted to a confiscation of the property of the complainant. See K. C. Sou. Ry. Co. v. Road Imp. Dist. No. 6 of Little River County, 139 Ark. 424.
It appears from the complaint that the total benefits assessed against all the real property in Conway County, including the railroad of the plaintiff, for the construction of the bridge is $296,806, of which amount plaintiff’s twenty-two miles of railroad is assessed at $68,975, an approximately one-fourth of the entire benefits to be received by all the property within the district by reason of the construction of the bridge.
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Hart, J.,
(after stating the facts). It will be perceived from the statement of facts that the railroad company sought relief from the action of the assessors by appealing from the finding of the board of assessors to the board of commissioners and then to the circuit court as provided by the statute. In the circuit court a complaint was filed by the railroad company as required by the statute. The circuit court sustained a demurrer to a part of the complaint and tried the remaining issues on the pleadings and the evidence introduced. We have set out the judgment of the circuit court in full in our statement of facts, but for convenience again set out that part of it which is most material to the issues raised by the plea of res adjudicata in the present case. It is as follows : “Now on this day comes the plaintiff by its attorneys, T. B. Pryor and W. P. Strait; comes the defendant, Conway County Bridge District, by attorneys, Sellers & Sellers, and this cause coming on for hearing upon the demurrer to plaintiff’s petition, pleading in this cause, and the court being well and sufficiently advised, it is ordered and adjudged that the demurrer to the petition, pleadings of the Missouri Pacific'Railroad Company, be and the same is hereby sustained to all the provisions and matters pleaded except that feature and provision alleging that plaintiff was not benefited and that the benefits assessed are excessive and more than the actual benefits received, to which finding and ruling the plaintiff, Missouri Pacific Railroad Company, at the time excepted and saved exceptions.”
The railroad company duly prosecuted an appeal from the judgment of the circuit court to this court, and the judgment of the circuit court was affirmed. The .opinion is reported in 134 Ark 292, under the style of Mo. Pac. Rd. Co. v. Conway County Bridge Dist.
Upon the present appeal there is a dispute between the parties as to what was decided in that case, and it is also strongly and earnestly insisted by counsel for the plaintiff that in certain respects the holding of this court in that case was not in accord with the issues raised by the appeal. In short, counsel claim that the court went beyond the issues and decided matters not raised by the appeal. On this point the case at bar must be determined by the opinion and statement of facts on the appeal in the case of the circuit court reported in 134 Ark. 292. Whatever the court held on the appeal in that case was determined in the court below is conclusive in the present suit. If this were not so, litigation might be 'interminable, and a judgment settling the rigits of the parties would be only a starting point for new litigation. In the opinion in that case, in discussing what issues were presented by the appeal, the court said: “Therefore, the only question for decision is whether or not the evidence is legally sufficient to support the finding of the circuit court as to the amount of assessment against appellant’s property, and the uniformity of the assessment with those imposed upon other property in the district.”
In making the assessment in that case the assessors divided the district into five beneficial zones and assessed the property in each zone at a different percentage according to its proximity to the bridge. It is now insisted that this was an arbitrary method of assessing the property of the railroad, and that there was no issue on this point made by the pleadings in the case in the circuit court. It is sufficient answer to this to say that this method of assessing the property was distinctly referred to, discussed and approved in the opinion on the appeal in that case. Hence the present suit is concluded in this respect by that opinion.
It is also insisted in the case at bar that the assessment of benefits was arbitrary and much greater than the benefits received by the railroad company. It is now insisted that this issue was not raised by the appeal in that case. We repeat that this issue was discussed and determined by the court on that appeal. The court expressly recognized that the. board of assessors had no right to arbitrarily fix a method of assessment which would not result in the ascertainment of the true benefits so as to work out uniformity in the assessment; but the court expressly held that the assessors had not done so and the question can not be again litigated. Moreover, this holding was in accord with the previous decisions of this court. In Lee Wilson Co. v. Road Imp. Dist. No. 1, 127 Ark. 310, the court had under consideration the provisions of the general law for the organization of road districts. In that case provision was made by the statute for an appeal to the county court to hear and determine the justness of any assessment of benefits and the court was authorized to equalize, lower or raise any assessments upon a proper showing to the court. The property owner there pursued the statutory- method of appealing from the judgment of the county court making the assessment, and contended on appeal to this court that the assessors in making the assessment of benefits to accrue to the land owner acted in an arbitrary manner, which resulted in an assessment far in excess of any benefits which would be derived from the improvement and which was so discriminatory and confiscatory as to amount to taking its property 'without due process of law. The court held that the evidence showed that the assessments of benefits was arbitrary and not made in the manner required by the 'statute. It held that the court erred in sustaining the assessment and reversed the judgment of the circuit court which had sustained the judgment of the county court in -making the assessments.
In the present case the assessors assessed the property of the railroad upon a mileage basis which was in the manner pointed out by the statute. This court affirmed the judgment of the circuit court sustaining the assessment in this respect because the statute had been followed in making the assessment.
As we have just seen, the holding is in accord with the rule laid down in the Lee Wilson Company case, although that case was not referred to in the opinion on the appeal in the circuit court case. It is true that the Lee Wilson Company case was subsequently overruled in so far as it held that the validity of the statute could be attacked on appeal under the statute from the finding of the bodies authorized to make the assessment of benefits ; but it was not overruled in so far as it held that upon an appeal under the statute from the assessment of benefits the court could determine whether the property was not benefited at all, whether the benefits assessed exceeded the benefits received, whether the assessment of benefits was arbitrarily made, or in fact whether the assessment of benefits amounted to a confiscation of the property of the complainant. See K. C. Sou. Ry. Co. v. Road Imp. Dist. No. 6 of Little River County, 139 Ark. 424.
It appears from the complaint that the total benefits assessed against all the real property in Conway County, including the railroad of the plaintiff, for the construction of the bridge is $296,806, of which amount plaintiff’s twenty-two miles of railroad is assessed at $68,975, an approximately one-fourth of the entire benefits to be received by all the property within the district by reason of the construction of the bridge. It is claimed that this amount not only is far in excess of the benefits received by the railroad company from the construction of the bridge, but that it is discriminatory and arbitrary when compared with the assessments made upon the other property within the district. It is claimed that this question was not within the scope of the issues raised by the appeal in the former case. We can not agree with counsel in this contention. The judgment of the circuit court expressly recites that the sum of $68,975, the amount of benefits assessed against the property of the railroad company, was not excessive. In the opinion upon appeal in that case the court said that the assessors divided the county into five zones according to the proximity of the property to the bridge and assessed the benefits by percentages on the value of the property for the purpose of taxation. The court sustained that method of assessment. While the evidence as disclosed by the record was not set out in detail and discussed by the court, the action of tbe court in sustaining the assessment in the opinion was necessarily an adjudication of the matter against the railroad company, and the question can not be reopened in the present case.
To sum up, under section 7 of the act in question, the board of assessors shall hear the complaint of all owners of property within the district, and shall increase or decrease the assessments,' after having heard the complaints of the property owners, so as to adjust the burden of the assessment to the benefits which will accrue to the property. The section also provides for an appeal to the board of commissioners and from that board to the circuit court. The power to increase or to decrease the assessments and to adjust the burden of the assessments to the benefits which will accrue to the property necessarily includes the power to decide whether the assessment is erroneous, whether the assessment is so high as to be confiscatory, whether it exceeds the actual benefits, or whether it is discriminatory. In these respects the statutory remedy is exclusive, and it is only upon grounds questioning the validity of the statute that the present suit can be based.
It follows that the court was correct in sustaining the defendant’s plea of res judicata.
Section 7 of the act provides that the assessors shall assess the value of the benefits which will accrue to telephones and telegraph lines and other power lines and also pipe lines.
The validity of the statute is assailed in the present suit on the ground that this rendered the act invalid because the Legislature had no power to include such lines within the district. There has been much diversity of opinion as to whether or not the right-of-way of such lines receive any benefits from a local improvement, but we are of the opinion that they may be included in the district for the same reason that is generally given in the case of the right-of-way of railroad companies. Of course, the amount of benefits would be a question of fact to be determined by the board of assessors.
Section 7 of the act also provides that the assessments of railroads, etc., shall be by the mile and not by the acre. The assessors made the assessment in the manner provided by the statute. Hence the validity of the statute in providing that the assessments of railroads, telegraph and telephone lines shall be by the mile and not by the acre was not involved in the appeal from the circuit court reported in 134 Ark. 292, and that question is a proper subject for adjudication in the case at bar. The precise question has been determined adversely to plaintiff in the case of Branson v. Bush, 251 U. S. 182. In that case the railroad company sought to enjoin the sheriff and collector from collecting the taxes assessed against the railroad company under a special act passed by the Legislature of 1911 for the purpose of constructing a highway in Crawford County, Arkansas. Special Acts of Arkansas, 1911, page 642.
Section 3 of that act provides for the assessment of all railroad rights of way within the boundaries of the district. In the opinion of the Supreme Court of the United States it is stated that the Circuit Court of Appeals enjoined the collection of the taxes as against the railroad company on two grounds:,
“(1) ¡Because the including of the franchise and other intangible property of the company in the assessment, results in ‘a higher rate of taxation’ on the property of the railway company than on the other property in the district; and
“(2) Because the evidence fails to show that the company would derive any benefit from the improvement of the road.”
The court reversed the decree of the Circuit Court of Appeals, and in regard to the first ground said that the basis for assuming that the franchise of the railroad company was added as a separate personal property value to the assessment of the real property of the company becomes upon the record as much too unsubstantial to justify invalidating the tax on that account if it be otherwise valid.
The court also reversed the decree on the second ground. On this point the witnesses for the district testified that the development of the adjacent county would increase the business of the railways company and by making a station on the plaintiff’s line of railway more accessible to distant lands would divert business from Yan Burén where there was a competing railroad. The court then said: “To this must be added the obvious fact that anything which develops the territory which a railroad serves must necessarily be of benefit to it, and that no agency of such development equals that of good roads.”
The record here is in all essential respects similar to the record presented in that case. The reasoning of the court in that case is sound, and will be adopted in the case at bar. The franchise of a railroad is an intangible element of value but it is inseparable from the value of the physical property of the railroad. We are of the opinion that the franchise is an element of value to be considered by the board of' assessors as entering into and enhancing the value of the real estate of the railroad company, and was not the application of an unlawful measure of value of such property for purposes of taxation. The value of the franchise attaches to the property regardless of ownership, and as above stated, is inseparable from the value of the physical property. Mr. Justice Clark in the case last cited, speaking for the court said: “If, however, the distinction sometimes taken between the ‘essential properties of corporate existence’ and the franchises of a corporation (Memphis & L. R. Rd. Co. v. Commissioners, 112 U. S. 609, 619), be considered substantial enough to be of practical value, and if it be assumed that the distinction was applied by the State commission in making the assessment here involved, this would result, not in adding personal property value to the value of the real estate of- the company in the district, hut simply in determining what the value of the real property was — its right-of-way, tracks and buildings — having regard to the use which it made of it as an instrumentality for earning money in the conduct of railroad operations. This at most is no more than giving to the real property a value greater as a part of a railroad unit and a going concern than it would have if considered only as a quantity of land, buildings and tracks. * * *
“Thus, the assessment complained of was made under valid laws and in a manner approved and customary in arriving at the value of that part of railroad tracks situated in a State, county or district. So far as this record shows, the assessment, modified by the decree of the District Court not appealed from, is not a composite of real and personal property values, but is the ascertained value of the real estate — the tracks and buildings — of the company within the taxing district, enhanced, no doubt, by the special use made of it, but still its value as a part of the railroad unit, resulting from the inherent nature of the business in which it is employed, a value which will not be resolved into its constituent elements for the purpose of defeating contribution to a public improvement. No attempt was made to prove fraudulent, or capricious or arbitrary action on the part of any officials in making the assessment, the only evidence upon the subject being the opinions of four employees of the company that the improvement of the road would not benefit the railroad property, and if inequality has resulted from- the application of the State law in a customary manner to a situation frequently arising in our country, it is an incidental inequality resulting from a valid classification of railroad property for taxation purposes which does not fall within the scope of the Fourteenth Amendment, which was not intended to compel the States to adopt an iron rule of equal taxation.”
It follows that the decree will be affirmed.