St. Louis Southwestern Railway Co. v. Grayson

78 S.W. 777, 72 Ark. 119, 1904 Ark. LEXIS 104

• Court: Supreme Court of Arkansas
• Decided: January 9, 1904
• Status: Published

Opinion

Hughes, J.

(after stating the facts). The defendants contend that the act levying this tax (Acts 1901, page 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.”

“Sec. 6471. Such railroad * * * shall be held to be real estate for the purposes of taxation, and denominated ‘railroad track,’ * * * and when advertised and sold for taxes, no other description will be necessary.” Sand. & H. Digest.

The statute having provided that railroads shall be assessed and taxed as a whole, and not having in this instance provided any other mode of assessment, we must conclude that the first section of the act under consideration was intended by the legislature to include the right of way, and that its assessment was therefore proper.

The law treats a railroad and its appurtenances as one entire thing. Applegate v. Ernst, 3 Bush, 648. A. part of a railroad •cannot be sold under execution. Kansas City, P. & G. Ry. Co. v. Waterworks Imp. Dist., 68 Ark. 379, 59 S. W. 248.

The appellant contends that the act is invalid because the same result could have been accomplished by a general act. But whether a special act is necessary is a matter within the discretion of the legislature. Byrd v. Bryant, 35 Ark. 73; Davis v. Gaines, 48 Ark. 371; State v. Sloan, 66 Ark. 579, 53 S. W. 47.

It is said that the act of 1901 suspends the general law as •contained in sections 1203-1232, Sandels & Hill’s Digest, in relation to drains and ditches. The act of 1901 was passed for the purpose of maintaining a levee and constructing a ditch. This act •of 1901 does not exactly cover the same purpose of the formei statute, and we think was not intended to, and does not, suspend the former in Sandels & Hill’s Digest.

It is also contended that the act of 1901 has been repealed 'by the act of 1903 relating to the reclamation of lands by the •construction, strengthening, widening, altering, or deepening of .any ditch, drain or water course. The act of 1901 is a special act, and the act of 1903 is a general act, and it is held that the presumption is that a general act was not intended to repeal a prior special act, even though the general act contains a clause repealing all acts inconsistent with it. Chamberlain v. State, 50 Ark. 137; Endlich, Int. Stat., § 223 et seq. There does not seem to be any intention in the act of 1903 that it shall contain .all the law on the subject of the act. State v. Kirk, 53 Ark. 339; Kounts v. Omaha (Neb.), 88 S. W. 117.

Counsel for appellant say that “the act does not provide for an interested party to have a day in court.” The act provides for the assessment to be'made upon “the assessed value of said lands for said year for state and county purposes.” The assessment for .■state and county purposes is made by the board of railroad commissioners, and, according to St. Louis, I. M. & S. Ry. Co. v. Worthen, 52 Ark. 529, the railroad company had its day in court, .and no other notice was necessary, and this though no appeal from the decision of the board is provided for. When the assess-' ment is made by the board of railroad commissioners, it is considered in the nature of a judgment, which the railroad company is estopped to question. Gossett v. Kent, 19 Ark. 602; Welty on Assessments, § 20, note 3, and cases cited.

The legislature has full and complete power of legislation,, except as prohibited by the constitution of the state, or the constitution of the United States. In Williams v. Eggleston, 170 U. S. 304, 311, it is said: “Neither can it be doubted that, if the state constitution does not prohibit, the legislature, speaking generally, may create a new taxing district, determine what territory shall belong to such district, and what property shall be considered as benefited by a proposed improvement. And in so doing it is not compelled to give notice to the parties resident within the territory or permit a hearing before itself, one of its committees, or any other tribunal, as to the question whether the property so included within the taxing district is in fact benefited.”'

In Spencer v. Merchant, 125 U. S. 345, Mr. Justice Gray said, in affirming the judgment of the New York court, that “the-legislature may commit the ascertainment of the sum to be raised' and of the benefited district to commissioners, but is not bound to do so; and may settle both questions for itself; and when it does so, its action is necessarily conclusive and beyond review. * * * No hearing would open the discretion of the legislature, or be of any avail to review or change it. * •* * The judicial department cannot prescribe to the legislative department limitations upon the exercise of its acknowledged powers.” See also Fallbrook Irrigation District v. Bradley, 164 U. S. 176; McGehee v. Matthews, 21 Ark. 40; Carson v. St. Francis Levee District, 59 Ark. 528; Parsons v. District of Columbia, 170 U. S. 55.

Judge Cooley in his work on Taxation says: “The whole-subject of taxing districts belongs to the legislature. So much is-unquestionable. The authority may be exercised directly, or, in case of local taxes, it may be left to local boards or bodies. * * * If the legislature has fixed the district, and levied the tax, for the-reason that in the opinion of the legislative body such district is plenteously benefited, its action must, in general, be deemed conclusive.” Again at page 53 he says: “The clause recited from’ the Magna Charta does not imply the necessity for judicial action in every case in which the property of the citizen may be taken-for public use. On the contrary, a legislative act for that purpose, when clearly within the limits of the legislative authority, is of itself the law of the land. And an act providing for the levying of taxes and the means of their enforcement is, as we have seen, within the unquestioned and unquestionable power of the legislature. It is therefore the law of the land, not merely in so far as it lays down a general rule to be observed, but in all the proceedings and all the process which it points out or provides for in order to give the rule full operation.”

The complaint states that the lands of the plaintiff will not be benefited by the improvement, and the contention seems to be that the demurrer admits this to be a fact. But this is not admitted by the demurrer. “Nor does a demurrer admit allegations which are legally impossible or contrary to legislative enactment, or which the law does not allow to be proved.” 6 Enc.. Pleading and Practice, page 338.

The decree of the chancellor is in all things affirmed.