Carolina & NW Ry. Co. v. Town of Clover

• Decision Date: 13 January 1931
• Docket Number: No. 3037.,3037.
• Citation: 46 F.2d 395
• Parties: CAROLINA & N. W. RY. CO. v. TOWN OF CLOVER, S. C., et al.
• Court: U.S. Court of Appeals — Fourth Circuit

46 F.2d 395 (1931)

CAROLINA & N. W. RY. CO. v. TOWN OF CLOVER, S. C., et al.

No. 3037.

Circuit Court of Appeals, Fourth Circuit.

January 13, 1931.

John B. Hyde, of Washington, D. C. (S. R. Prince, of Washington, D. C., Frank G. Tompkins, of Columbia, S. C., and J. E. McDonald, Jr., of Winnsboro, S. C., on the brief), for appellant.

John R. Hart, of York, S. C. (Hart & Moss, of York, S. C., on the brief), for appellees.

Before PARKER and NORTHCOTT, Circuit Judges, and SOPER, District Judge.

PARKER, Circuit Judge.

This was an action instituted in the court below by the plaintiff, the Carolina & Northwestern Railway Company, to recover of the defendant the town of Clover, S. C., certain paving assessments paid under protest. The jurisdiction of the court was invoked on the ground of diversity of citizenship and also because it was claimed that the assessments in question had been levied in contravention of the due process and equal protection clauses of the Fourteenth Amendment and unduly burdened interstate commerce. Jurisdiction was challenged by the defendant, but was sustained on both grounds mentioned; and a trial on the merits was had. The court excluded evidence offered by plaintiff for the purpose of showing that the assessments were unreasonable and confiscatory, that they unjustly discriminated between plaintiff and other abutting property owners, and that they would hamper plaintiff in discharging its duties as an interstate carrier. The court sustained the assessment because made in application of the "front foot" rule, and directed verdict for defendant; and, from judgment thereon, the plaintiff has appealed.

Plaintiff operates a line of railway 133 miles in length between Chester, S. C., and Edgemont, N. C. The town of Clover is a small town built along its line, which runs north and south for a distance of 5,370.8 feet through the town limits. Its right of way consists of a narrow strip having an average width of 24 feet, approximately 14 feet of which lies east and approximately 10 feet west of the center of its track. On either side of its right of way and extending parallel therewith are streets or roadways, the one on the west constituting the principal street of the town. This street is a part of state highway No. 16; and about the year 1925 the state highway commission paved it as a state highway for a width of 18 feet. The town of Clover thereupon passed an ordinance under section 4506 of the Code of South Carolina of 1922, vol. 3, directing that it be paved for its full width of 34 feet and that one-half of the cost of the additional paving be taxed against the owners of abutting property. One-half of this cost, or the sum of $5,415.27, was assessed against plaintiff as the owner of the right of way on the east side of the street. The other one-half was assessed against the business and residential property on the west side, which had an average depth of 150 feet. In like manner a strip 79.6 feet was paved on the street east of the track, and half the cost thereof was assessed against abutting property; $208.83 being assessed against the right of way of plaintiff. In addition to this, plaintiff was assessed for paving laid on the street east of its right of way opposite its depot, but has paid this assessment without protest.

On the trial, plaintiff offered evidence tending to show that the property west of the paved street, against which there was assessed the same amount as was assessed against the property of plaintiff, has an area fifteen times as great as that of its property west of the center of its track and a value, considered apart from the particular use to which it was put at the time, eighteen times as great; that the property east of the paved street on the east of the right of way has an area six times as great and a value eighteen times as great as its property opposite thereto; that the hard-surface paving parallel to its track is of no advantage to it, but rather is a detriment, in that it aids plaintiff's competitors who transport freight and passengers by truck or automobile; that, while this paving has been of advantage to other property owners and has increased the value of their property, it has not increased the value of plaintiff's property and cannot do so; that paving is of no value to the property while used for railroad purposes and, because the property is a narrow strip of land less than 25 feet wide lying between two streets, could not be of value if the railroad should be abandoned; that the assessment for paving purposes is greater than the value at which the property is assessed for purposes of taxation and is 82.32 per cent. of the net income of plaintiff's business attributable to the town of Clover for the year in which the assessment was levied; that the amount of the assessment was equal to 5.58 per cent. of the entire net income of the line for the year; and that such compulsory expenditure would impair the ability of the road to discharge its duty as an interstate carrier and would thus impose an unwarranted burden upon interstate commerce. This evidence was excluded, and verdict was directed for defendant, upon the theory that an assessment against the plaintiff of two-seventeenths of the total cost of the paving opposite its property could not be deemed confiscatory, that benefits to the plaintiff were to be assumed because of the general upbuilding of the country through the improvement of the public highways, and that the evidence offered was insufficient to show that the assessment made on the front foot basis, was discriminatory.

We agree with the judge below that the court had jurisdiction of the cause. Without passing upon the question raised as to diversity of citizenship or intending to suggest any doubt as to the correctness of his decision with regard thereto, we have no doubt that there was jurisdiction because of the claim made that the assessment was violative of the Constitution of the United States. The suit to recover the assessments paid under protest was thus one arising under the Constitution, of which the federal courts are expressly given jurisdiction. 28 USCA § 41 (1)(a); Risty v. Chicago, R. I. & P. R. Co., 270 U. S. 378, 46 S. Ct. 236, 70 L. Ed. 641.

We think that the learned judge erred, however, in excluding the evidence offered by plaintiff and in directing a verdict for the defendant. It is true that the Legislature of a state may either directly or by delegation to a municipality require that the cost of a public improvement be assessed against property benefited thereby. And ordinarily, without authorizing an inquiry as to the extent of the benefit received by particular property, it may direct that the cost of the improvement of a street or highway be assessed against abutting property in accordance with the front foot rule, as in such cases it is manifestly impossible to apportion the cost in exact accord with the benefits received, and this rule as nearly approximates just apportionment as any which could be devised. Tonawanda v. Lyon, 181 U. S. 389, 21 S. Ct. 609, 45 L. Ed. 908; French v. Barber Asphalt Paving Co., 181 U. S. 324, 21 S. Ct. 625, 45 L. Ed. 879. Furthermore, it is no objection to an assessment that the land assessed is used for railroad purposes, and, while so used, is not benefited by the improvement; for the property must be viewed in the light of its general relations and apart from the particular use to which it is being put at the time. Louisville & N. R. Co. v. Barber Asphalt Paving Co., 197 U. S. 430, 435, 25 S. Ct. 466, 49 L. Ed. 819. If, however, an assessment as made, whether by the...