ARK.] MO. PAC. R. Co. v. WALNUT RIDGE-ALICIA DIST. 297 MISSOURI PACIFIC RAILROAD COMPANY V. WALNUT RIDGE-ALICIA ROAD IMPROVEMENT DISTRICT. Opinion delivered October 8, 1923. 1. APPEAL AND ERROR—FORMER DECISION ON . APPEAL.—The decision of this court on a former appeal herein becomes the law of the case, which must control throughout the litigation. 2. HIGHWAYS—ABANDONMENT OF IMPROVEMENT—APPORTIONMENT OF ExPENsEs.Where, in determining appellant's proportion of the expenses of an abandoned road project, it appears that the tax on appellant's property, based upon the county assessmen'-; exceeds the amount of the benefits assessed against the land, the court should reduce the tax on such property so as not to exceed the total of the assessed benefits. Appeal from Lawrence Chancery Court, Eastern District; Lyman F. Reeder, Chancellor ; reversed in part. Ponder ce Gibson and T. B. Pryor, for appellant. Act 43 of the special session of 1919 was an act to amend act 426, and confirmed the assessments which had
298 Mo. PAC. R. Co. V. WALNUT RIDGE-ALICIA DIST. [160 previously been made by the commissioners and deClared them to ,be the assessment , of benefits of the district, thereby repealing by implication § 30 of act 426-forming the district. There is a distinction between : the bon ditions found in 153. Ark. 51, 81 Ark. 562, .and.,107 Ark: 285, and in the present instance, as here the ,Legislature had determined the benefits. , The assessment, on the val-. uation for State and county, purposes is arbitrary. and unreasonable. The present case is ,distinguished. from that in 153 Ark. 51, in that there the assessments had not been approved, and were therefore incomplete and furnished no certain means to know ,just, what the assess7 ment would finally have been. , Ilere the. assessments were approved by the Legislature._ The assessment is arbitrary and unreasonable, and a taking of property without due process, of law. The -figures,!as set L out in the transcript are conclusive., ,153 Ark. 587: ,,The,law as attempted to be enforced is an infringement of fundaa mental rights and in violation of the 14th Amendment to the Constitution of the United States. 204 U. S. 241. This amendment elearly constitutes , a limitation on the power of States. 12 p. J. , 1194; Id. p. 1195 and 'cases. Rose, Hemingway, Cantrell , & , Loughborough, for appellee. To give the act Of 1920 the effect Contended' for bY apPellant would be to deprive 'Creditors of , any nAthod of collecting their debt, and would ' be in cOntrayention of art. 1, § 10, of the Const. ,of ,, the :Unitect,cStateg: 102 U. S. 206. Such acts levying..an ad valorem:-.tax have been sustained many' times. 81 Ark: 562 021. Id. 105; 72 Id. 119; 77 Id. 384; 108 Id. 421; 98 Id. 116.; '103 Id. 127, and recently reaffirmed in 157'Ark:' 354 . For decisions holding that acts or court decisions cutting off constitutional rights or 'remedies gre' invalid, see 5' Ark. 506; 25 Id. 625; 24 Id: 91; 15 Howard 304.. "COnfrOvert-ing the contention of dppellant that the assessment against appellant should be upon the assessment of, _benefits and against the remaining property owners ,on ,the,
'ARlia MO. PAC. R. uo. O. WALNUT RInGE-ALICIA DIST. 29.9 dd . basi,' as a Violation of the . eqUality clause -df'thb Cdnstitlition, see 32 Ark. 31; 48 Ark. 251; 48 Ark. 370; 57 'Ark. '554; '130. Ark. 74; 119 Ark. 203. Only one :thethod'i g proVided' fOr 'paying the debts''of 'the district, -and, 'if 'that be 'stricken dOwn, the'claims'of the creditors t o Unpaid. •-• See 150-Ark. 525.. " • Thoi.' 13 . :' Pryor' and konder cC Gibso4i,' tor appellant, rbply. 1 ., , 1 tt ft r, o T "0 h 1 e , T ' i• L eg -islhture • bas determined.fOr itself the valid- 11" .. s nie I nt j s '' 1 m !). / •; ' ify_of the aSseg ade on :the property of the dis-tribt, 'and an thing in excess , of thiS amount , would be a
t.akmgofproperty . withOut due proceSs of law. , See 113
107 Ark.'285; 97 Ark. 322,86 Ark. 1'; 51 Wash.
I2','23-t.-1R. A.' (1■1 . . 2.) 286 As behl,by the trial court, 'appellant, .will be required to paY , '$ . 255.14 more than the b 1 e 1 n n efitS , aSSe' Issed agaiiigt its , property. , The, i taxes, in O-tiher' WordS, canna exceed the antibiPated,benefits. McCuLLocH, C. J. Appellee is a road improvement district created by a special statute enacted by the Gen-erat As'senibly !at the'regUlaAeSsiOn df 1919. Road: Acts 1 !, 9 19; vol.' 2,' P.-1752: , 'The Stainte'prOViCied for an assessMent benefit g lot the' ptirPoSd'Of 'rAising f-Unds to pay fOici theConstrUctithi. of 'the iinProVeinent, § 30 of the Statu'teI P'rovided ihat,i lf the iiii.PrOVenaent should not be Made,''''alreitPenSe's and , CostS' aCcrued at that tinie shall be' charg'eCt agaiiiSt the'real PI LOPejitY of the' distriet, and the aininint neeeSSary te 'clis'eliarge' all Suc. h indebtedness `g hall'belevied b the ChanderY -COUrt' Of LawrenCe',County iipon real prOpertY l in Prop'Ortion:I tO lAe countY asseSS-inent;and eolleaed by a reeeiVe'r 'to be appointed by said court." The'asSessrnerit Made"by the' assesSors Of 'the district, 'pursuant to the' • staftitd, 'tvaS ciinfirnied ari'd: approved 'by:special det . of the' General"Assenibl, enacted at the''extraordinary' se§'§iOn-in'Tebruary; . 1920. Later it waS aseerthined that it was'iMpracticable' td construct the improvement, 'and' it waS abandoned.' 'This Vas after there 'had: been preliminarsi'eXpenseS;' ConSiSting of 'en-
800 MO.- PAC. E. Co. V. WALNUT RIDGE-ALICIA DIST. [160 gineers' fees and other expenses. After the, abandonment of the work, the engineers who performed the preliminary work, and other creditors, commenced an action in the chancery court of .Lawrence County, pursuant tg § 30 of the statute, supra, for the ascertainment of the amount of their claims and the levy of assessments in accordance with the section mentioned. Owners of land in the district, including the present appellant, intervened in•that suit to contest the claims of the creditors. The court rendered a decree ascertaining the amount of the claims against the district, but refused to levy assessments according to the mode prescribed in § 30. The court, on the contrary, discarded that method of assessment and levied a proportionate tax on the assessments of benefits. According to that method of assessment, appellant's tax amounted to the sum of $172.58. The benefits on appellant's property in the district were assessed by the district assessors at the total sum of $6,637.50. In resisting the assessments, appellant and the other protestants attacked the validity of the district. There was no appeal from that part of the decree which adjusted and fixed the claims of creditors, but, on an appeal from the other features of the decree, we decided that the attack upon the district by the owners of property was unfounded. In dealing with the question as to the method of assessment, we held that the tax to pay the preliminary expenses must be levied "in proportion to the county assessment," as prescribed by § 30 of the statute.. Neterer v. Dickinson & Watkins, 153 Ark. 5. In disposing of that question we said: "Even if it be held that the Ppsumption of the legislative determination that benefits will accrue in that proportion is excluded by the further provision in the statute for an actual assessment of benefits, lt does not render invalid the provisions for the payment of preliminary expenses by taxation in proportion to the assessment •for county purposes. The two methods of
ARK.] MO. PAC. R. Co. V. WALNUT RIDGE-ALICIA DIST. 301 assessment are for wholly different purposes. One is for the payment of the cost of the completed improvement, which must be by taxation based upon and apportioned on benefits to accrue. The other is a mere provision for the payment of preliminary expenses where the improvement is not undertaken at all. This provision necessarily implies a determination by the Legislature that there are anticipated benefits, at least to the extent of the cost of the preliminary expenses, apportioned according to assessments for county purposes, but it is neither unfair nor violative of any right of landowners to provide that, in the event the contemplated improvement is not undertaken, the preliminary expenses shall be paid according to value, and not according to anticipated benefits. The distinction lies between the payment of preliminary expenses and payment of the actual cost of the improvement. Where an attempt to construct the improvement proves abortive and has to be abandoned, it is fair to exact contributions from all of the lands according to value, provided the taxation does not exceed the anticipated benefits, and, as before stated, this feature of the statute must be treated as a determination that a proportionate assessment of taxation for the payment of preliminary expenses will not exceed the, anticipated benefits. It is not even shown in the present instance that the assessments apportioned according to assessed value will exceed, as to any tract of land. the assessed benefits." The cause was reversed, and remanded "with directions for further proceedings in accordance with this opinion." On the remand. of the ease the present appellant renewed its protest against the assessments and set up the fact, in support of its contention. that, under the statutory method of Assessment on valuations fixed by the county assessments, the g ross amount of appellant 's assessment would be $6,992.64, which is $355.14 more than the assessment of benefits as approved by the legislative act referred to above. The chancery court ren-
302 Mo. PAC. R. Co. V. WALNUT RIDGE-ALICIA DIST., [160 dered a decree levying the taxes on, the valuation fixod in the county assessment; as directed by, this , court, axid appellant has prosecuted an appeal to this court. It. will be. observed, from the above recitals of the history of this litigation, that the present appeal is•but a continuation of .the suit .involved on the former appeal, and, that being true, the decision of this court,,on the former.appeal becomes the law of the: case, which must control throughout the litigation. The chancery Icoart was therefore ,correct in, levying the. assessments in ac,- cordance.,with the. statute levying the taxes, on the yal, uatien assessed for county •purposes, ibut, 5hen itzwas brought to the attention of the court by the;plea' of:the appellant that its property , under this assessment: , ex7- ceededin the sum of-$355.14, the; totatbenefits asassessed and ;confirmed, the, tax on • appellant's ;property (should have.been Teduced to that extent so; as. to conform,to. the law:as announced by. this 'court. • It will be observed,.from the ,opinion . on the former appeal,: that. we. declared, the ;law :tor be that; ,wher.o,the improvement 'is . , abandoned, the taX 46-pay the , prelira7 inary expenses shall be levied "according-to value, provided the taxation does. not, exceed!•the anticipated ,bene, fits.' ? The fact that thet assessment of this Tarticular property , owner exceeds, , the total assessed ,bénefits on the property . of that owner:. does not render..the whole assessment invalid, but calls for a reductionof the assess; ment down to the amount of assessed benefits ,s6,sjto conform :to` the' law . as decided in the; case. , This does not constitute a change in. the basis of the...assessment; but merely makes the assessment conform t o the methods prescribed .by- the statute, that the limitations,:which we have set must be read into -the: statute---that , the tax Cannot. 'exceed the .total assessed benefits. , 'The decree is therefore - reversed in part, -and the Cause 'will be remanded- with. directions to reduce-, the amount decreed against, appellant's land tO the above specified total amount of the assessed' benefits • HART,. J., dissents.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.