Chicago & N.W. Ry. Co. v. City of Riverton, Fremont County

• Citation: 70 Wyo. 84,247 P.2d 660
• Decision Date: 29 August 1952
• Docket Number: No. 2553,2553
• Parties: CHICAGO & N. W. RY. CO. v. CITY OF RIVERTON, FREMONT COUNTY.
• Court: United States State Supreme Court of Wyoming

Page 660

247 P.2d 660

70 Wyo. 84

CHICAGO & N. W. RY. CO. v. CITY OF RIVERTON, FREMONT COUNTY.

No. 2553.

Supreme Court of Wyoming.

Aug. 29, 1952.

W. M. Haight, Riverton, Wyo., Neely, Otis & Cockle, Omaha, Neb., Nelson Trottman, Chicago, Ill., in support of petition for rehearing.

BLUME, Chief Justice.

A petition for rehearing has been filed in this case. We held that appellant's right of way is assessable for the street improvements in question to be made in the city of Riverton, and that according to area and the percentage fixed in the fourth part of section 29-2019, Wyo.Comp.St.1945. The decision must not be taken as representing the view of fairness on the part of the members of this court. We based the decision on our statute. We fully realize that nowadays trucks, busses and airlines take away a good deal of the business that would otherwise go to railways. If our decision had been based on a former decision of this court, without reference to any statute, it may well be that we should have overruled such former decision, or modified it in accordance with the rule often announced by this court that when the reason of a rule ceases, the rule itself should cease. And there is no doubt that the legislature, too, should in all justice follow that rule and should revise the statute in accordance with present day conditions. But it is a separate department of our government and it is fully recognized that the judicial department will not interfere with the legislative department except in cases in which the statute in question is clearly unconstitutional.

The petition for rehearing is accompanied by a brief of 60 pages. We have read it with care. We heretofore made an exhaustive examination of the subject before us setting forth our view in an opinion some thirty pages long. We should not be expected to write another long opinion, or specifically mention the various matters set forth in appellant's present brief. Counsel for appellant admit that at least some of the cases cited in our original opinion sustain our decision in this case, but believe that these cases are not sustained by the weight of authority. We still think that the great weight of authority is that, generally speaking, a railroad right of way is subject to special assessments for street improvements the same as other property. We have not held--as counsel seem to think we did--that it is subject to all special assessments. Many situations might arise in which it would be palpably unjust and arbitrary to subject a right of way to such special assessments. An interesting case on this phase of the subject is Atlantic Coast Line R. R. Co. v. City of Winter Haven, 112 Fla. 807, 151 So. 321. We have limited and do limit our decision strictly to the facts existing in this case.

Whether or not the question of benefit, and the extent thereof, is a judicial question--in which case the owner may challenge an assessment on the ground of lack of benefit--or a legislative one, depends on the statute. It may be conceded for the purpose of this case that in most jurisdiction the question is a judicial one, as counsel claim. We think that in the present case it is a legislative one. Counsel say that the cases cited by us which involve the constitutionality of statutes on this subject are not in point, but that only the construction of our statute is in question. Strictly speaking that may be correct, but the cases involved statutes in which the legislature determined what property was benefited, and hence are at least illustrative of the subject before us. See also our comment below. Let us examine our statutory provisions somewhat more closely than we did in our original opinion.

Under the provisions of section 29-2002, Wyo.Comp.St.1945, the city council is given the power to levy assessments upon lands specially benefited by an improvement, 'and to determine what lots, parts of lots, and parcels of land are specially benefited by such improvements, * * *.' The city council in this case made such determination by creating an improvement district and making the assessments in question herein. The case accordingly falls squarely within the decision in the case of Northern Indiana R. R. Co. v. Connelly, 10 Ohio St. 159, and similar cases. However, our legislature was not content with leaving the matter solely in the hands of the council, but for some reason thought that it should itself put the matter beyond question of doubt, and provided by section 29-2019, Wyo.Comp.St.1945: 'All property included within said limits of such local improvement district shall be considered * * * the property specially benefited by such local improvement and shall be the property to be assessed to pay the cost and expense thereof * * * in proportion to area and distance back from the marginal line of the street * * *.' Here all the property within the district shall be considered benefited. How can this court, without declaring the statute unconstitutional, construe this statute to mean that the judiciary has the power, after testimony introduced, to determine the exact contrary and fly squarely in the face of the apparently mandatory provision of the statute? The fourth part of the same section provides for the extent of the benefit. We have not discovered any statute exactly like it. It is provided that the assessments shall extend to the distance of half a block, and that in the proportion of 60, 30 and 10 per cent according to the distance back from the street. The statute further provides as follows: '* * * provided, that any fractional lots or irregular shaped tracts to which the above formula does not apply shall be assessed according to area.' The right of way of appellant comes within that proviso. Here are no qualifications whatever. The irregular tracts shall be assessed according to the area thereof, and evidently, according to the percentage mentioned previously, depending on the distance back from the marginal lines of the street. That seemingly was done. And the legislature was not even satisfied with these apparently mandatory provisions, and to leave as little loophole as possible to the property owner provided by section 29-2060, Wyo.Comp.St.1945 as follows: 'The action and decision of the council as to all matters passed upon by it in relation to any action, matter or thing provided in this Act * * * shall be final and conclusive in the absence of fraud.' We shall refrain from deciding the extent of the meaning of this apparently drastic provision of this statute. Suffice it to say that it would seem to be clear that we must either uphold the assessment herein against the right of way of appellant, or declare the statute unconstitutional. We see no other alternative, no matter when may be our view as to the justice of the assessment. We naturally hesitate to say, especially in view of the numerous authorities heretofore cited, that the proposed assessment is so arbitrary and palpably unjust so as to warrant us in holding that the legislature has gone beyond the limit of its power.

Counsel for appellant say that our holding is inconsistent with the provisions of section 29-2022, Wyo.Comp.St.1945, authorizing the court to confirm, correct, modify or annul the assessment. But that we think relates to matters other than that of benefit or no benefit. There are a number of such matters pointed out in the case of Northern Pac. Ry. Co. v. City of Seattle, 46 Wash. 674, 91 P. 244, 12 L.R.A.,N.S., 121.

Counsel for appellants now for the first time call our attention to the case of In re Shilshole Ave., Bolcom Mills, Inc., v. City of Seattle, 94 Wash. 583, 162 P. 1010. That case seems to hold that the question of benefits is a judicial one under the statutes considered by the court. The line of argument was...