State Ex Rel. Ray v. Paragould & Southeastern Railway Co.

FARRINGTON, J. — This suit was brought by the State of Missouri at the relation and to the use of W. T. Ray, Collector of the revenue in and for Dunklin County, for the use and benefit of Levee District No. 4 of Dunklin County, Missouri, against the Paragould & Southeastern Railway Company, a corporation, to recover judgment for $227.60 for levee taxes for the year 1917. The petition is in the usual form. In its answer and amendment thereto the Railway Company set up three defenses:' (a) that Levee District No. 4, having been created and organized under article 10, chapter 41, Statutes of Missouri, 1909, had no authority to levy or collect any assessment or tax for levee purposes against the property of the Railway Company; (b) that the Levee District is barred from maintaining this suit by reason of a judgment rendered in a condemnation proceeding in the case of Levee District No. 4 against the Railway Company and others, entered in the circuit court of Dunklin county in 1912; and (c) that Levee District No. 4 is estopped by the foregoing judgment to assert the claim sued on in this case. The reply denied all averments o'f the answer and amendments thereto. The case was tried to the court and judgment was entered for the railway company, which is the basis of this appeal. It is contended on the part of the appellant that a railroad is subject to special assessments for levee pur *605 poses under sections 5714 to 5763, inclusive, Revised Statutes 1909, which sections make up the entire article 10, chapter 41 of the statutes relating to the' organization of Levee Districts by County Courts. Section 57221, Revised Statutes 1909, authorizes the directors of the District to order the assessment of a tax on all the lands within the district benefited. The terms used in this chapter 41, article 10, concerning property are “Lands,” “Real Estate” and “Territory,” the word “lands” being, most frequently employed. The term Railroad is nowhere mentioned, and it is the contention of appellant that under section 8057, which defines the word lands, shall be taken in meaning co-extensive with lands, tenements and hereditaments; the use of the term lands in the chapter relating to the organization of Levee Districts by county courts is broad enough to include railroad rights of way. A great number of authorities are cited by appellant to sustain this proposition, and were we left to decide the question independent of any other intention than that expressed in chapter 41, art. 10, Revised Statutes 1909, a different conclusion might be arrived at than is here. It is held in Macke v. Byrd, 131 Mo. 690, 33 S. W. 448, that “all provisions of law on one topic should be considered in determining the meaning of any particular portion thereof, (State v. Pitts, 1872, 51 Mo. 133) and such a construction should be given to the latter as will keep all the provisions of law on the same subject in harmony, and give effect to all, when possible.” It is also held in the same case, on page 688, that section 8057, Revised Statutes 1909, is only applicable where the construction it furnishes is not plainly repugnant to the intent of the Legislature or of the context of the: statute to be construed. In determining legislative intent, statutes on cognate subjects may be referred to, though not strictly, in pari materia. [State ex rel. v. Wiggins Perry Co., 208 Mo. 639, 106 S. W. 1005; Sales v. Barber Asphalt Paving Co., 166 Mo. 677, 678, 66 S. W. 979.] *606 There seems to be much difference of opinion concerning whether a railroad right of way is subject to be assessed for local improvements absent an express provision of the statute. [See 1 Page and Jones, on Taxation by Assessment, sec. 595.] In determining whether railroad property, such as right of way, was intended to be subject to assessment under the term “lands,” as used in chapter 41, article 10, Revised Statutes 1909, It may be well to look at other statutes touching the same and kindred topics. Article 9, chapter 41, Revised Statutes 1909, provides for the organization of Levee Districts by circuit courts; section 5707 has to do with assessment of benefits, and section 5709 with the assessment of property. In each of them the term “land” is employed, and stood in that position until 1907, when an amendment to that law was passed, which is now section 5708, Revised Statutes 1909, thereby including railroad right of way, roadbed and embankment. We find, therefore,, that the laws relating to the topic of Levee Districts, article 9 and article 10, chapter 41, ran along together, in no place mentioning railroad property, but in 1907 the Legislature saw fit to amend the law with reference to districts formed under chapter 9 so as to expressly include railroad property but made no such amendment to article 10, the one under which the District in this case was formed. Turning to article 1, chapter 41, pertaining to the organization of Drainage Districts by circuit courts, we find that in addition to lands (see section 5516, Revised Statutes 1909)', railroad rights of way and roadbeds and other railroad property is included for the assessment of benefits and damages, and section 5519 provides for an assessment against “each tract of land or property in said district.” Similarly, article 3, chapter 41, providing for the organization of Drainage Districts by county courts, provides for the assessment of “lands, easements and servitudes,” (see sections 5555 and 5576) which, there is no denying would embrace railroad rights of way, roadbeds and embankments. Again, article 4, *607 chapter 41, providing for the improvement of ditches, water courses and levees by proceedings in the county court, in section 5589 authorizes the assessment of * ‘ railroads.” By expressly including railroad property in the statutes cited, where the term “lands” was also used, shows a legislative understanding that the term lands was insufficient to include railroad property, such as roadbed, rights of way, embankment, etc., and a failure to include more than land in this statute clearly shows an intent not to include them in its operation. We think the following argument made, in respondent’s brief is sound, and we adopt it: “If we further explore this statute, we are irresistibly driven to the conclusion that that construction is repugnant to the legislative intent as shown by the context. Section 5726 of- the act imposes upon the county assessor the duty of making the assessments of the bene-, fits to the lands, while section 5734 provides that the county board of equalization ‘ ‘ shall have and receive the same jurisdiction over the lands taxed for the purposes in this act specified as conferred by the general laws of the State in the assessment of property for State and county purposes.” But railroads are not assessed by the county assessor, but by the state board, created by section 11559, Revised Statutes 1909; and that board, so the same section provides, and not the county board of equalization, likewise equalizes the assessments against railroad property. If, therefore, under section 5734 the county board of equalization was to have only the powers “as conferred by the general laws of the State in the assessment of property for State and county purposes,” it could have no power to equalize the assessment of railroad property, for it has none over such property for State and county purposes. Must it not be true then, that the use of the word “lands” in this act was not meant to embrace the railroad right of way, roadbed or embankment, providing as it did no method for a review of an assessment as against a railroad, as we see from the restrictive language of section 5734?” [See Little Rock & Ft. Smith Ry. Co. v. Huggins, 64 Ark. 432.] *608 We must, therefore, hold that until the Legislature sees fit to give more power than has already been granted, the Levee Districts formed under chapter 41, article 10, have no right to assess railroad property for district purposes. The judgment is affirmed. Bradley, J., concurs. Cox, P. J., not sitting.