Walton v. Commissioners of Light Improvement District No. 1

Smith, J. This suit questions the validity of an improvement district in the city of Benton organized for the purpose of purchasing an electric light plant from a company which had allowed its franchise, obtained from that city, to forfeit. Several questions are raised which we find it unnecessary to decide, as, in our opinion, the petition of the property owners does not contain a majority in value as-required by the Constitution. The court below found otherwise and prepared an elaborate opinion discussing the various issues raised in the case. But in this opinion the court held that the value of the railroad property lying in the city should be excluded. But, in connection with this finding, the court also- found that, if it was in error in excluding the railroad property, the petition did not have a majority in value; and there appears to he no doubt that such is the case. The statute provides that, “in ascertaining whether the petition for improvement of any kind is signed by a majority of the owners in value of the real property in the district adjoining the property to be affected, the council shall take and be governed by the valuation placed upon the property as shown by the last county assessment on file in the county clerk’s office. Women, married or single, may sign the petition; guardians may sign for their wards, and executors or administrators may sign for the estates represented by them.” Section 5717, Kirby’s Digest. In regard to the assessment of railroads for general taxation purposes the statute provides that “the buildings and sidetracks of railroads shall be assessed as real estate, and each building or sidetrack shall be assessed in the incorporated town or district'where located. Main track shall also be assessed as real estate, and it shall be apportioned for assessment and taxation between the several towns and school districts through which the railroads run according to the actual mileage in each town and district” (Sec. 14, Act 251, Acts 1911, p. 244), and that rolling stock, materials and stores shall be assessed as personal property, and that assessment distributed in the same manner. This assessment of railroad property is made by the State Tax Commission, and was properly made for the year in question, and the official certificate of the Commission showing the railroad assessment in the city of Benton was furnished to and filed with the clerk of the county court. In extending this assessment on the tax books, the clerk did not separate the real estate from the personal property, but extended the entire assessment on the personal tax book. He stated, however, that the assessment roll sent him by the Tax Commission did show the length of the main track and the value thereof, the length of the sidetracks and the value thereof, and the value of the buildings, in the city of Benton, and his explanation of his failure to extend these assessments properly was that he did not know what part of the assessment to extend as personal property nor what part as real estate and he had, therefore, extended it all as personal property on the personal tax book. But, as. appears from the statute quoted, the buildings, main track and sidetracks are assessed as real estate, and the clerk’s lack of knowledge of this provision of the statute did not alter the character of the property. The case presented is not one where there has been a failure to assess the railroad property, for it was assessed, and properly so; and it will be observed that the statute does not require the determination of the question of the value of the property in the proposed district to be made from an inspection of the tax books, but the statute is that “the council shall take and be governed by the valuation placed upon the property as shown by the last county assessment on file in the county clerk’s office.” The assessment of the railroad properties was on file in the clerk’s office, and the railroad was no doubt required to pay the taxes levied on that assessment. Had the railroad company desired this improvement and, by proper authorization, had signed the petition for it, we think, without question., it would have been proper for the value of its property, as shown by the last county assessment on file in the county clerk’s office, to be taken into account, because, within the meaning of the statute, the assessment made by the Tax Commission is a part of the county assessment. And if this be true, it must also be true that the value of the railroad property should be taken into account in determining whether the requisite majority in value had been obtained by those who petitioned for the establishment of the improvement district. It follows, therefore, that the necessary majority has not been obtained, and the decree of the court will, therefore, be reversed, and the cause remanded with directions to enjoin the commissioners of the proposed district from further proceeding as prayed in the complaint.