265 F. 524 | 8th Cir. | 1920
This is a suit brought by the commissioners of road improvement district No. 2 of Lafayette county, Ark., hereafter called plaintiffs, against the St. Louis Southwestern Railway Company, hereafter called defendant, to recover the sum of $49,765.-80, being the amount assessed as benefits by the board of assessors of said district against the real estate, buildings, and roadbed of defendant, situated therein. The proceeding out of which this suit originated was commenced by the organization of the district under what is known as the “Alexander Road Law” of Arkansas. After the organization of the district the county court appointed three persons to act as commissioners. These commissioners formulated plans, ascertained the cost of the improvement, and filed the same in the office of the county clerk. Thereupon the county court appointed three persons to act as a board of assessors for»said district. The persons appointed as assessors met at a time designated by the president of the board of commissioners, and assessed the benefits which in the judgment of said board would be received by the defendant by reason of the improvement contemplated, as it would affect the lands
The county clerk gave public notice as provided by law, and therein stated that said assessment of benefits had been filed in his office, and that any person, firm, or corporation aggrieved by reason of any assessment therein made should appear before the county court on a date to be fixed by the court for the purpose of having any errors adjusted or any wrongful or grievous assessment corrected, and that all grievances or objections to said assessments should be presented to said court in writing. On the 22d day of May, 1918, the county court of Lafayette county, Ark., fixed June 28, 1918, as the date for hearing all exceptions of persons, firms, or corporations to the assessment of benefits as made by the board of assessors of said district. On June 27th, the day before the hearing fixed by the county court, the defendant duly removed the case against it to the United States District Court for the Western District of Arkansas, on the ground of diversity of citizenship. A motion to remand the case to the county court was made in the court below by the plaintiffs, on the ground that the proceeding was not a suit. The motion was denied. This ruling and the reduction of the amount of benefits are assigned as errors by the plaintiffs. The defendant assigns as error the refusal of the court below to further reduce the amount of benefits. After the motion to remand was denied, the case subsequently was brought to trial upon the assessment of the board of assessors as certified to the county court by the bdard of commissioners, the amended exceptions of the defendant to said assessment, and the reply to said exceptions by the plaintiffs.
The defendant alleged, among other things, that the assessment was excessive and exorbitant, and greatly and substantially exceeded the benefits which would be received by defendant’s property by reason of the construction of the contemplated improvement; that said assessment was arbitrary and discriminatory as compared with the assessment made by the' board of assessors upon other property within the district; that the maximum benefits which the property of defendant would receive by reason of the construction of the contemplated improvement would not exceed $3,009.21, and that, to the extent that the assessment of $49,765.80 exceeded said sum of $3,009.21, the assessment was unreasonable and arbitrary, and would deprive the defendant of its property without due process of law. The trial was commenced before the District Court and a jury duly impaneled, but subsequently the court of its own motion withdrew the cause from the consideration of the jury, for the alleged reason that there was no disputed question of fact, whereupon the plaintiffs and the defendant, making no objection to the action of the court in withdrawing the case from the jury, each asked the court to make certain findings of fact and conclusions of law, which are set forth in the record. The court did not adopt the findings of either party, but
“At the hearing provided for in the preceding section and after the county court shall have considered the assessment of benefits, it shall enter its findings thereon, either confirming the assessment of benefits against said property, increasing or diminishing same, and the order made by the county court shall have all the force and effect of a judgment against all real property in said district, and it shall be deemed final, conclusive, binding and incontestable except by direct attack on appeal.”
The county court in this very case, not recognizing the removal of the cause to the United States District Court, on June 28, 1918, rendered the following judgment:
“It is further considered, ordered, and adjudged by the court that the assessment of benefits made against the St. Louis Southwestern Railway Company and against the Louisiana & Arkansas Railway Company as to the line of railroads of said respective companies in said district by the assessors for said district, be approved and confirmed by the court, and the clerk of this court is hereby instructed and directed to spread same upon the records as a permanent assessment roll for said district.”
We are of the opinion that a proceeding which might result in a judgment against the defendant for the payment of money is a suit at law, and that the assessment of benefits in such a proceeding is an assessment, in the same way that a jury assesses damages in a civil action at law upon breach of contract or any other contested liability, and not a mere fixing of the value of property for the purpose of taxation. The case of Horn v. Baker, 215 S. W. 600 (Supreme Court of Arkansas, October 13, 1919), decides nothing to the contrary. The question was not involved in that case. The following cases sustain the ruling of the court below: Smith v. Douglas Coun
The judgment below therefore must be affirmed; and it is so ordered.