#### K. C. S. Railway Co. v. Ark. Commerce Commission.

5-1814 and 1815

326 S. W. 2d 805

Opinion delivered May 25, 1959.

[Rehearing denied September 7, 1959]

No briefs filed for appellant.

No briefs filed for appellee.

Ed. F. McFaddin, Associate Justice.

These two cases involve the valuation assessments against the appellant as made by the State tax assessment authorities under the provisions of § 84-601 et seq. Ark. Stats, and amendments. Appellees claim that the appeals were not filed within the time allowed, so appellant is met with a motion to dismiss the appeal in each case. We have reached the conclusion that the motions to dismiss must be sustained. Here are the crucial dates in each case:

Case No. 1814 involves the tax assessment against appellant for the year 1955. On August 29,1955 the Tax Division of the Arkansas Public Service Commission notified appellant that the equalized assessed value of its property in Arkansas for 1955 had been fixed by the Com*664mission at $3,913,000.00. Appellant protested the assessment, and the Public Service Commission, by its order of December 9, 1955, adjusted the assessed valuation of appellant’s properties to be $3,881,900.00. Appellant, being still dissatisfied with the valuation as fixed, appealed to the Pulaski Circuit Court on January 4, 1956. By its judgment made and entered on May 14, 1958, the Pulaski Circuit Court affirmed the order of the Public Service Commission and the Circuit Court judgment also recited: ‘ ‘ That two newly created agencies, the Arkansas Commerce Commission and the Arkansas Assessment Coordination Department, have entered their appearances, adopting and supporting the position of the Arkansas Public Service Commission.”1

On June 10,1958 appellant filed in the Circuit Court its notice of appeal to the Arkansas Supreme Court, and the appeal was perfected in this Court by the filing of the transcript on December 11, 1958. Thus a total of six months and twenty-seven days elapsed from the entry of the Circuit Court judgment on May 14, 1958 until the filing of the appeal in this Court. Appellant seeks to justify this delay by stating that the notice of appeal was given in the Circuit Court on June 10, 1958, and that on September 3, 1958 the Circuit Court entered an order extending to December 15, 1958 the time for filing the appeal in the Circuit Court. All this will be discussed later under the topic, “Motion To Dismiss”.

Case No. 1815 involves the tax assessment valuation against the appellant for the year 1956. On June 29, 1956 the Tax Division of the Arkansas Public Service Commission notified appellant that the equalized assessed value of appellant’s property in Arkansas for 1956 had *665been fixed by tbe Commission at $4,396,000.00. Appellant protested tbe assessment, and tbe Public Service Commission, by tbe order of January 15, 1957, affirmed tbe valuation at tbe figure of $4,396,000.00. Appellant appealed to tbe Pulaski Circuit Court on January 24,1957: and that Court, by its judgment made and entered on June 3, 1958, affirmed tbe order of tbe Public Service Commission; and that judgment also recites: “Tbe Arkansas Commerce Commission and tbe Arkansas Assessment Coordination Department bave entered tbeir appearances, adopting and supporting tbe position of tbe Arkansas Public Service Commission.2

On July 1, 1958 appellant filed in tbe Pulaski Circuit Court tbe notice of appeal to tbe Arkansas Supreme Court; and tbe appeal was perfected in tbis Court by tbe filing of tbe transcript on December 11, 1958. Thus, a period of six months and eight days elapsed from the entry of tbe Circuit Court judgment on June 3, 1958 until tbe filing of tbe transcript in tbis Court. Appellant seeks to justify tbis delay by tbe fact that on September 18, 1958, tbe Pulaski Circuit Court entered an order extending tbe time for filing and docketing tbe appeal in tbis Court to January 15, 1958. Tbis will be discussed in the topic beading, “Motion To Dismiss”, now to be considered.

MOTION TO DISMISS

Tbe question, presented by tbe motions to dismiss, is whether tbe procedure for appeal in cases like these two is regulated and controlled by § 73-133 et seq. Ark. Stats., as claimed by appellees, or by Act No. 555 of 1953, as claimed by appellant. We conclude that tbe appellees are correct. Tbe rule has been recognized in many cases that when tbe Legislature fixes a short time for appeal in a particular type of case, and such time so fixed is reasonable, then tbe short time so fixed must govern rather than tbe long time allowed by tbe general *666appeal statute.3 Crandell v. City of Harrison, 105 Ark. 110, 150 S. W. 560; McIlroy v. Baird, 157 Ark. 288, 248 S. W. 1; Covington v. Shackleford, 222 Ark. 374, 259 S. W. 2d 676.

In the two cases here before us, the applicable statute governing appeals from the Circuit Court to the Supreme Court,4 in cases like these two, is § 73-134 Ark. Stats. This statute was originally Pope’s Digest § 2020, and reads in part: ‘ ‘ The record shall be lodged in the office of the Clerk of the Supreme Court within sixty days from the rendition of the order in the Circuit Court . . .” In Graysonia, Nashville & Ashdown R. Co. v. Arkansas Corporation Commission, 202 Ark. 589, 151 S. W. 2d 665, the question here involved was definitely decided. There, the Commission had fixed the railroad’s assessment and the appeal had been made to the Circuit Court. The Circuit Court judgment was October 22,1940 ; and the appeal was not filed in this Court until March 24, 1951. Citing Pope’s Digest § 2020, we held: “Since the appeal was not perfected in a timely manner, the motion to dismiss must be sustained.”

In the present cases, the appellant, thinking that its appeals were regulated by Act. No. 555 of 1953, obtained orders in the Circuit Court purporting to extend the time for lodging the record in the Supreme Court. But when the statute fixes a time for appeal, and the time is reasonable, such statute is mandatory (Miller v. White, 108 *667 Ark. 253, 157 S. W. 934); and the Circuit Court could not enlarge tke time fixed in the statute.

Therefore, the appellee’s motions to dismiss the appeals are granted.

1

During the pendency of this litigation the Legislature, by Act No. 234 of 1957, created the Assessment Coordination Department; and by Act No. 132 of 1957 created the Arkansas Commerce Commission. Both the Commerce Commission and the Arkansas Assessment Coordination Department became parties to the record in the Circuit Court. By Act No. 245 of 1959, the Legislature abolished the Assessment Coordination Department and created the “Department of Assessment Coordination of the Arkansas Public Service Commission”. This latter Act is mentioned for convenient reference. It recites that it is not effective until July 1, 1959.

2

See footnote (1) supra.

3

C. R. Stevenson was our long time Clerk of this Court; and in his book, “Supreme Court Procedures”, revised in 1956, he lists on page 7 thereof the appeal time fixed for certain types of cases. Among those so listed, Mr. Stevenson recites: “Public Service Commission: record shall be lodged in the Supreme Court within sixty days of the rendition of the order in the Circuit Court. Ark. Stats. § 73-134, § 73-236.” Acme Brick Co. v. Ark. Public Service Comm,., 227 Ark. 436, 299 S.W. 2d 208, involved an appeal in a rate hearing. That type of appeal is governed by § 73-236, which also allows only sixty days to appeal from the Circuit Court to the Supreme Court.

4

Section 84-120 Ark. Stats, involves appeals from the Public Service Commission “.. . respecting the assessment or equalization of property ...”, but concerns only the appeal from the Commission to the Circuit Court; so the quoted language from § 73-134 Ark. Stats, is the applicable section here on appeals from the Circuit Court to the Supreme Court.