Chicago, M. & St. P. Ry. Co. v. Drainage Dist. No. 8 of Shelby County, Iowa

• Decision Date: 31 August 1916
• Docket Number: 4013.
• Parties: CHICAGO, M. & ST. P. RY. CO. v. DRAINAGE DIST. NO. 8 OF SHELBY COUNTY, IOWA, et al.
• Court: U.S. District Court — Southern District of Iowa

253 F. 491

CHICAGO, M. & ST. P. RY. CO. v. DRAINAGE DIST. NO. 8 OF SHELBY COUNTY, IOWA, et al.

No. 4013.

United States District Court, S.D. Iowa, Western Division.

August 31, 1916

Supplemental Opinion, March 6, 1917.

J. N Hughes, of Cedar Rapids, Iowa, for plaintiff.

Cullison & Cullison and E. S. White, all of Harlan, Iowa, for defendants.

WADE District Judge.

This case was transferred to this court from the district court of Iowa in and for Shelby county, upon petition of the plaintiff. It has been submitted upon motion to remand. I can repeat with emphasis the language of Judge Van Valkenburgh in Drainage District No. 19 v. C., M. & St. Paul Ry. Co. (D.C.) 198 F. 253, in which he says:

'As stated at the outset, this question is attended by difficulties. It is a perplexing one, and we must concede that it is not entirely free from doubt, feeling, as we must, that it is highly desirable that matters of this nature should, so far as possible, be dealt with in the courts of the state especially designated and more conveniently adapted to handle such proceedings.'

Many cases involving questions related to the questions at issue in this case have been decided by the federal courts and the Supreme Court of the United States, and yet the very question involved in this case has never been before any court so far as I have ascertained.

The question before Judge Van Valkenburgh in the Drainage District Case, supra, comes nearer to this case than any other I have found, and yet there is a marked distinction which distinction I feel is decisive in this case. In the Drainage District Case, it is said:

'In its petition for removal the defendant alleges that benefits amounting to $617.50 have been illegally, wrongfully, and improperly assessed against it, and that the drainage district proposes to construct a ditch along and across the right of way and roadbed of petitioner, to its damage in the sum of $17,490.'

In his opinion in this case Judge Van Valkenburgh quotes from In re Jarnecke Ditch (C.C.) 69 F. 161, as follows:

'Whether a removal could be had, if the sole issue presented by the remonstrants was the amount of the assessments, it is not necessary to determine.'

In the case at bar the only question involved is the assessment for alleged benefits. Neither before the board of supervisors, nor in this court, is there any question raised as to the jurisdiction of the board, or the regularity of the proceedings up to the time of the appraisement and assessment. In this proceeding there can be no question tried or determined as to the establishment of the drainage district, or the necessity therefor; it is simply and solely a question of the amount of taxes for special benefits which the plaintiff is required by the assessing body to contribute to the public improvement, and it is a question as to what tribunal shall determine such amount under the peculiar provisions of the statutes of the state of Iowa. Did this question involve any question of damages to the property, or any question of eminent domain, I would have no hesitation in holding that this court had jurisdiction.

Another case which considers the questions involved, is County of Upshur v. Rich, 135 U.S. 467, 10 Sup.Ct. 651, 34 L.Ed. 196, where the defendants complained of taxes levied upon their land, and filed a petition with the county court, asking that the same be reduced, and thereupon filed a petition to remove the case to the United States court, which was sustained by the Circuit Court, which ruling was reversed by the Supreme Court of the United States. It is true that the Supreme Court says in that case:

'Even an appeal from an assessment, if referred to a court and jury, or merely to a court, to be proceeded in according to judicial methods, may become a suit, within the act of Congress.' And yet I am not convinced that this proceeding comes within this language of the court. Kansas City v. Hennegan (C.C.) 152 F. 249, referred to by counsel, involved the question of condemnation of property for public purposes, and not the question of taxation.

Taxation, whether general or special, is a legislative function, and the power of the county in this case to levy taxes upon the plaintiff's property was derived from the Legislature. It is well settled that the Legislature may prescribe the mode by which taxes shall be levied and the amount determined. It may fix the tribunal, or designate the body of men who shall act in making appraisement and assessment. It is not necessary to 'due process of law' that the matter shall ever come before a court. All that is necessary is that at some stage in the proceedings the parties affected shall have an opportunity to be heard. In the recent case of St. Louis & Kansas City Land Co. &t al. v. Kansas City, 241 U.S. 419, 36 Sup.Ct. 647, 60 L.Ed. 1072, the Supreme Court of the United States says:

'Where assessments are made by a political subdivision, a taxing board, or court, according to special benefits, the property owner is entitled to be heard as to the amount of his assessment and upon all questions properly entering into that determination. ' If the Legislature,' as has frequently been stated, 'provides for notice to and hearing of each proprietor, at some stage of the proceedings, upon the question what proportion of the tax shall be assessed upon his land, there is no taking of his property without due process of law.' Spencer v. Merchant, 125 U.S. 345, 355, 356 (8 Sup.Ct. 921, 31 L.Ed. 763); Paulson v. Portland, 149 U.S. 30, 41 (13 Sup.Ct. 750, 37 L.Ed. 637); Bauman v. Ross, 167 U.S. 548, 590 (17 Sup.Ct. 966, 42 L.Ed. 270); Goodrich v. Detroit (184 U.S. 432, 22 Sup.Ct. 397, 46 L.Ed. 627), supra. What is meant by his 'proportion of the tax' is the amount which he should be required to pay, or with which his land should be charged. As was said in Fallbrook Irrigation District v. Bradley, 164 U.S. 175 (17 Sup.Ct. 56, 41 L.Ed. 369), when it is found that the land of an owner has been duly included within a benefit district, 'the right which he thereafter has is to a hearing upon the question of what is termed the apportionment of the tax; i.e., the amount of the tax which he is to pay.' See, also, French v. Barber Asphalt Paving Co., 181 U.S. 324, 341 (21 Sup.Ct. 625, 45 L.Ed. 879). It is a very different thing to say that an owner may demand as a constitutional privilege, not simply an inquiry as to the amount of the assessment with which his own property should rightly be charged in the light of all relevant facts, but that he should not be assessed at all, unless the assessments of other owners, who have paid without question and are not complaining, shall be reopened and redetermined. The Fourteenth Amendment affords no basis for a demand of that sort.'

In Hagar v. Reclamation Dist., 111 U.S. 701, 4 Sup.Ct. 663, 28 L.Ed. 569, it is said:

'Undoubtedly, where life and liberty are involved, due process requires that there be a regular course of judicial proceedings, which imply that the party to be affected shall have notice and an opportunity to be heard; so, also, where title or possession of property is involved. But, where the taking of property is in the enforcement of a tax, the proceeding is necessarily less formal, and whether notice to him is at all necessary may depend upon the character of the tax, and the manner in which its amount is determinable. The necessity of revenue for the support of the government does not admit of the delay attendant upon proceedings in a court of justice, and they are not required for the enforcement of taxes or assessments. As stated by Mr. Justice Bradley, in his concurring opinion in Davidson v. New Orleans (96 U.S. 97, 24 L.Ed. 616): 'In judging what is 'due process of law,' respect must be had to the cause and object of the taking, whether under the taxing power, the power of eminent domain, or the power of assessment for local improvements, or some of these; and if found to be suitable or admissible in the special case, it will be adjudged to be 'due process of law,' but if found to be arbitrary, oppressive, and unjust, it may be declared to be not 'due process of law.""'

The court also says:

'But where a tax is levied on property, not specifically, but according to its value, to be ascertained by assessors appointed for that purpose, upon such evidence as they may obtain, a different principle comes in. The officers, in estimating the value, act judicially; and in most of the states provision is made for the correction of errors committed by them, through boards of revision or equalization, sitting at designated periods provided by law, to hear complaints respecting the justice of the assessments. The law, in prescribing the time when such complaints will be heard, gives all the notice required, and the proceeding by which the valuation is determined, though it may be followed, if the tax be not paid, by a sale of the delinquent's property, is due process of law. In some states, instead of a board of revision or equalization, the assessment may be revised by proceedings in the courts and be there corrected, if erroneous, or set aside, if invalid, or objections to the validity or amount of the assessment may be taken when the attempt is made to enforce it. In such cases all the opportunity is given to the taxpayer to be heard respecting the assessment, which can be deemed essential to render the proceedings due process of law.'

In Kelly v. Pittsburgh, 104 U.S. 78, 26 L.Ed. 658, it is said:

'Taxes have not, as a general rule, in this country since its independence, nor in England before that time, been collected by regular judicial proceedings in a court of justice. The necessities of government, the nature of the duty to be performed,...