275 F. 600 | 8th Cir. | 1921
(after stating the facts as above). By its decree in this case the court below found that the special Act of the Legislature of Arkansas No. 308, approved February 23, 1920, whereby the final assessment of benefits to the property of the railroad company made by the defendant Board o £ Commissioners, on account of the construction of the highway was changed from §2,767.50 to $25,-000, was arbitrary, unconstitutional and void, and it enjoined the defendants from collecting any taxes based on that assessment or on any other assessment than the final assessment of $2,767.50 made by the Board.
The Fourteenth Amendment declares:
“Nor shall any state deprive any person of life, liberty or property without due process of law.”
And due process of law against one must give him notice of the charge or claim against him and an opportunity to be heard respecting the justice of the judgment, order, or action sought or to be considered. The notice must be such that he may be advised by it of the nature of the claim against him, and of the relief sought or intended, if the claim is sustained. The opportunity to be heard must be such that he may, if he chooses, cross-examine the witnesses produced to sustain the claim, and produce witnesses to refute it, if a question of fact is in issue. In re Rosser, 101 Fed. 562, 567, 41 C. C. A. 497; In re Wood & Henderson, 210 U. S. 246, 254, 28 Sup. Ct. 621, 52 L. Ed. 1046.
In support of the constitutionality of this legislative act counsel for the defendants first argue that the first assessment of $25,000 made by the board was valid, and call attention to statements in the statement of the case to the effect that the board, in making that assessment and
Moreover, the deposition of Mr. Strait is as much a pari, of the “statement of the case” as are the statements therein about the board’s $25,000 assessment; and while the statement of the case clearly shows that there was much evidence before the court below which that statement does not contain, it does contain the deposition of Mr. Strait, and no testimony of any one of the commissioners or-of any other witness which contradicts the statements of Mr. Strait in that deposition that before the hoard made its $25,000 assessment he discussed the amount of the benefits with some of the members of the hoard, that one of them thought it should be about $3,750, but that this amount was perhaps too low, and after discussion they tentatively agreed with him that it should he $2,500, that the assessment they finally made, $2,767.50, after hearing his objections to the board’s $2,500 assessment, was at the rate of $125 per mile of the road in the district, that this was the rate at which the assessment of benefits to the property of the company in the adjoining county of Pope was made, that $85 per mile was the rate on which the assessment in Johnson county was based, that when he learned of the hoard’s $25,000 assessment he was informed that it was not intended that this assessment should stand, that the hoard would take the matter up with the company and treat it right after some other assessments were adjusted, that they did take it up thereafter, and hear the company’s objections and complaint, and after the hearing and discussion finally adjudged the assessment of $2,767.50, that there were no special benefits to the property of the railroad from the construction of this parallel highway, and that “so far as I know, and as war, ever discussed with me, no one ever claimed or maintained originally that anything like benefits in the sum of $25,000 would accrue to the railroad by reason of the construction of this parallel road.”
Repealed readings of the statement of the case and deliberate consideration thereof have convinced that neither the tentative $25,000 assessment made by the board nor anything in the statement of the case estopped the company from insisting, or the court below from finding, that the benefits to the property of the company did not exceed $2,767.50, and that, on the other hand, there was ample evidence in that statement of the case to sustain such a finding, and that there is little doubt that the court below did so find, and on that finding based its decision and decree.
Another contention of counsel is that the final assessment of $2,767.-50 was illegal, because the board reduced the assessment from $25,000 to $2,767.50 pursuant to an agreement, that it made the reduction in consideration of a representation and agreement of the attorney and engineer of the company that they would use their influence with it to induce it to put in some switches and side tracks for the board free of cost; but the statement of the case convinces that neither the attorney nor the engineer had any authority to bind the company to put in such switches and side tracks, that they notified the board and its members knew that fact before it made the reduction, that when the board called for the switches and spurs the attorney and engineer did use their influence with the company to obtain them for the board, but the operation and control of the railroad were then in the government, and higher officials refused to furnish them.
■ Counsel argue the illegality of the board’s final assessment as though the fact were established that the value of the benefits was $25,000. On that assumption they write that in making the final assessment the board put only $2,767.50 of this $25,000 on the assessment books, and gave to the company the benefit of $22,232.50 of the $25,000 benefits for the promise of the attorney and the engineer; but this argument is not persuasive, because the assumption is not sustained by the statement of the case, which, in the opinion of the court, warrants the conclusion, probably reached by the court below, that the benefits did not exceed. $2,767.50. As the company made no agreement about the switches and spurs, as the statement of the case warrants the conclusion that the benefits to it did not exceed $2,767.50, the fact that the board reduced the tentative assessment to that amount after the hearing in the hope that the attorney and engineer would be able to induce the
The last contention is that the act of the Legislature challenged is in itself constitutional and valid, but none of the authorities cited sustain a statute analogous to this act. Counsel cite Spencer v. Merchant, 125 U. S. 345, 356, 357, 8 Sup. Ct. 921, 31 L. Ed. 763. In that case an assessment was made on property for street improvements without notice to the owners and an opportunity for them to be heard. Some of the owners paid, others refused to pay, and the court held their assessments void for want, of notice and hearing. Thereupon the Legislature passed an act to the effect that the part of the assessments for the improvements unpaid might be assessed proportionately on the property of the owners who had failed to pay, provided that notice was given to them and an opportunity afforded for them to be heard. This act was sustained by the court, but in that case the statute expressly provided for notice to the owners of the hearing and for an opportunity for them to be heard before the assessments against them should be made. The act in hand provided neither notice nor hearing.
It does not appear to this court that the court below fell into any error of law or mistake of fact in its finding or decree in this case, and it is therefore affirmed.