148 N.W. 545 | N.D. | 1914
(after stating the facts as above). The objection of the appellant goes directly to the jurisdiction of the drainage board to make any assessment, or at any rate to create any lien, against the right of way of the defendant company. It is that the alleged lien is void for the reason that special assessments for a local improvement of the kind in question cannot be made against a right of way or easement of a railroad company, and especially of one which is interstate in its character. It is argued that any sale which must necessarily be had to enforce such a lien would be the sale of a fragmentary portion of the roadbed, which would not only disrupt the road and prevent the public service which the company was created to furnish, but would and could furnish to the purchaser no right or interest, as the land could only be used as a railway right of way, and without legislative sanction and permission no such right of user exists. It is claimed that such a proceeding would
The portions of the statute which appear to be pertinent are as follows: Section 1818: “Water courses, ditches and drains for the drainage of sloughs and other lowlands may be established, constructed and maintained in the several counties of this state whenever the same shall be conducive to the public health, convenience or welfare under the provisions of this chapter. The word ‘drain’ when used in this chapter shall be deemed to include any natural water course opened, or proposed to be opened, and improved for the purpose of drainage and any artificial drains constructed for such purpose.” Section 1821: “A petition for the construction of a drain may be made in writing to the board of drain commissioners. If among the leading purposes of the proposed drain are benefits to the health, convenience or welfare of the people of any city or other municipality, the petition shall be signed by a sufficient number of the citizens of such municipality or municipalities, to satisfy the hoard of drain commissioners that there is a public demand for such drain. If the chief purpose of such drain is the drainage of agricultural, meadow, grazing or other lands, the petition shall be signed by at least six or more freeholders whose property shall be affected by the proposed drain.” Section 1826: “Upon acquiring the right of way, if the assessment of benefits has not already been made under the provisions of § 1824, the board of drain commissioners shall assess the per cent of the cost of constructing and maintaining such drain, and of providing the right of way therefor, which any county, township, city, village or town shall be liable to pay by reason of the benefits of such drain to the public health, convenience, or welfare, and which any railroad company shall be liable to pay by reason of benefits to accrue to its property, and which any lot, piece or parcel of land shall be liable to pay by reason of benefits to accrue thereto, either directly or indirectly, by reason of the construction of such drain, whether such lands are immediately drained thereby, or can be drained only by the construction of other and connecting drains, but such assessment shall be subject to review by the commissioners as hereinafter provided.” Section 1831: “The board of drain commissioners shall make a list showing the amount
There is much to be said in support of the contention of appellants. Railroads are quasi public institutions. They have the right to make a reasonable profit on the investment which they represent. The state, on.the other hand, has the power to regulate rates when that profit becomes excessive. It is clear that no profit can be made until the operating and fixed charges are met, and the higher the operating and fixed charges, the higher the rates will be that must be charged in order to make a fair return upon the investment. Special assessments, in fact all taxes, must indirectly increase the cost of operation and raise the point from which the profit begins, as well as the point at which the state is entitled to regulate the charges. They must, in fact, mean higher rates to the public. The first question is, Can local improvements which are for the immediate benefit of the locality merely, and the cost of which can be assessed upon adjacent property merely upon the theory of actual benefit, be imposed, when the cost thereof must ultimately be borne by the people as a whole ? The second is, Can such taxes be made a lien upon a right of way, the sale of which may seriously interrupt the operation of the road ?
The answer to the first question, to our mind, revolves entirely around the question of benefits. Local and general taxes may be imposed upon railway property because they both help to develop and to assure governmental and police protection to the territory through which the link of the road runs, and because the link is a part of a continuous whole and its police protection is necessary to that whole. Such taxes are valid even when levied upon the property of railroads, which are interstate in their nature. A distinction, in fact, is drawn between a tax upon property which is used in interstate commerce or the instrument
Even without a legislative expression upon the subject, there is much authority in support of the validity of an assessment such as that before us. See Louisville & N. R. Co. v. Barber Asphalt Paving Co. 116 Ky. 856, 76 S. W. 1097, 197 U. S. 430, 49 L. ed. 819, 25 Sup. Ct. Rep. 466; Northern P. R. Co. v. Seattle, 46 Wash. 674, 12 L.R.A. (N.S.) 121, 123 Am. St. Rep. 955, 91 Pac. 244; Rich v. Chicago, 152 Ill. 18, 38 N. E. 255; Illinois C. R. Co. v. East Lake Fork Special Drainage Dist. 129 Ill. 417, 21 N. E. 925; Drainage Com’rs v. Illinois C. R. Co. 158 Ill. 353, 41 N. E. 1073; State, Paterson & H. River R. Co., Prosecutor, v. Passaic, 54 N. J. L. 340, 23 Atl. 945; Northern P. R. Co. v. Pierce County, 51 Wash. 12, 23 L.R.A.(N.S.) 286, 97 Pac. 1099.
The law in fact is summed up by Judge Elliott in his work on Bail-roads in § 7866, as follows: “There is a conflict in the adjudicated cases as to whether or not the right of way of a railroad company is subject to local assessments. The question has been discussed in a great number of instances, and different conclusions reached in ap
It is not indeed for us to establish the public policy in this matter. It has been announced by the legislature, and the action of that body, in the absence of some constitutional prohibition, must be conclusive upon us. This is not a case where the court is called upon to construe or to enforce some private contract, concerning which no public policy has been announced. It is a case in which it is asked to set aside a statute which itself expresses the public policy of the state, merely because its conception of what a sound public policy may be differs from that of the legislative body. This it cannot do. In the announcing of the rules of public policy, indeed, the courts are the third and weakest link in the governmental triumvirate. Public policy, in short, is public policy. Its highest expression is to be found in a constitutional provision which expresses the will of the sovereign people, and which, being voted upon by the whole public, announces a policy which is truly public, both in its origin and in its expression. Where there is no constitutional provision upon the subject, the next highest expression is that offered by a statute which expresses the public will or policy as construed by the legislative representatives of the people, whose determination, in the absence of a constitutional prohibition, must of necessity be controlling. The third factor in the chain is the supreme court. It, however, has no power to command or to create, but merely to construe. It, in short, announces and can announce no public policy of its own, but merely what it believes to be the policy of the people as a whole, and where the people have spoken it must be controlled by their decisions.
That the public has spoken in the case before us admits of no questioning. Section 1826, of the Code of 1905, is indeed capable of but one construction. It expressly provides that “upon acquiring the right of way, if the assessment of benefits has not already been made under the provisions of § 1824, the board of drain commissioners shall assess ■ the per cent of the cost of constructing and maintaining such drain,
It is idle for counsel to argue .that the legislature could only have intended depot or similar lands, the sale of which would not interfere with the operation of trains, for the act is not'only clearly a rural as opposed to an urban or city and village act (see Stoltze v. Sheridan, post, 194, 148 N. W. 1), but nine depots out of every ten are construct? ed within the limits of the original right of way, and must often be moved if additional tracks are to be laid.
Nor does the fact that a sale of the right of way would perhaps be necessary as a last resort, nullify the statute. The uninterrupted performance by the railroad company of the public functions for which it was created may indeed be of great importance to the state and to the community; but the legislature may nevertheless deem that the collection of its taxes and a universal obedience to the supremacy of the law may be of more importance still. 37 Cyc. 842; St. Louis, I. M. & S. R. Co. v. Miller County, 67 Ark. 498, 55 S. W. 926.
There can, indeed, also be little difference between levying upon a right of way and levying upon a locomotive engine, which latter act is often done and generally held to be permissible. Both acts might equally interfere with and cripple the operation of the road.
In the case of Heman Constr. Co. v. Wabash R. Co. 206 Mo. 172, 12 L.R.A.(N.S.) 112, 121 Am. St. Rep. 649, 104 S. W. 67, 12 Ann. Cas. 630, the matter and contention was disposed of in the following language: “What we do hold is that, under the charter and ordinance, the tax bill sued on in this case is a lien against that part, of the right of way of the defendant company described in the tax bill. We do not feel called upon to determine -how such judgment can be enforced. . . , As a general rule, ‘where there is a right there is
We have next to determine whether the act violates the provisions of either the 14th Amendment to the Federal Constitution or the 3d, or so-called Commerce Clause, of § 8 of article 1 of that instrument, when it is sought to be applied to interstate lines.
The first point was suggested but not argued by counsel for appellant, and needs no consideration here. It is sufficient to say that the state, in the main, can establish its own due process of law, and that if the state has the right to levy the assessment at all, and the legislature intended that it should be levied, there is in the act no violation of property rights nor of the day in court and equal protection of the laws which the 14th Amendment guarantees. The argument of counsel indeed is based not upon any theory of private property, but of public rights only. He insists that the railroad company has no fee in the land, but merely a right to pass thereover in the performance of a public service; and it is on the premise that a levy upon and sale of a section of the right of way would interfere with this public service that his whole argument is based.
We are not unmindful of the cases as cited by counsel for appellant. In none of them, however, was there a statute similar to our own and in which the legislative intention was clearly expressed that railroads should be subject to their operation. They were cases, indeed, in which the courts were left to infer what the legislative policy in relation to railway property might be, and this by a construction of general words merely. So, too, most of them were cases of assessments for pavements, sidewalks, or sanitary sewers which could not possibly benefit the right of way or render the operation of the road any safer or easier. See Mt. Pleasant v. Baltimore & O. R. Co. 138 Pa. 365, 11 L.R.A.
A surface-water drain, indeed, which like the one in the case at bar, drains swamp lands along a right of way, is materially different from a sidewalk or pavement or a sanitary house sewer. The first may benefit the right of way by preventing its erosion. The others cannot possibly be of any advantage to it, except as they add to the general health and prosperity of the localities through which the road passes. In the case at bar the trial court found that the right of way was “in fact materially and substantially benefited” by the drain, and no appeal was taken from this determination but on questions of law and of law alone. The question of benefits, therefore, is answered in the affirmative, and is established.
We fully agree with the supreme court of Massachusetts that a tax for local improvements upon a public-service corporation will usually be ultimately borne by the people of the whole state in the form of increased tariffs and charges, and that in the absence of a clear intimation in the statutes to the contrary, no such burden should be deemed to have been intended to be imposed. Boston v. Boston & A. R. Co. 170 Mass. 95, 49 N. E. 95. Where, however, the legislature has clearly spoken upon the subject, as it seems to have in the statute here under consideration, we cannot hold that the legislature did not assume the risk, and did not have the right to do so. The words of the statute, “by reason of the benefits of such drain to the public health, convenience, or welfare, and which any railroad company shall be liable io pay by reason of benefits to accrue to its property, and which any lot, piece or parcel of land shall be liable to pay by reason of benefits> to accrue thereto, either directly or indirectly, by reason of the construction of such drain, whether such lands are immediately drained
The judgment of the District Court is affirmed.