Kimama Highway Dist. v. Oregon Short Line R. Co.

• Decision Date: 07 April 1924
• Docket Number: 4177.
• Citation: 298 F. 431
• Parties: KIMAMA HIGHWAY DIST. et al. v. OREGON SHORT LINE R. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

298 F. 431

KIMAMA HIGHWAY DIST. et al. v. OREGON SHORT LINE R. CO.

No. 4177.

United States Court of Appeals, Ninth Circuit

April 7, 1924

Delana & Delana, of Boise, Idaho, and Paul S. Haddock, of Shoshone Idaho, for appellants.

George H. Smith, of Salt Lake City, Utah, and H. B. Thompson and John O. Moran, both of Pocatello, Idaho, for appellee.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

RUDKIN Circuit Judge.

In July, 1922, the Kimama highway district, a municipal corporation organized under the laws of the state of Idaho voted bonds of the district in the sum of $90,000 for the construction of a highway from east to west, through the district. The present suit was thereafter instituted by the Oregon Short Line Railroad Company, the principal property owner within the district, to restrain the highway commissioners from issuing or selling the bonds thus authorized. From a decree in favor of the plaintiff, this appeal is prosecuted.

There is little or no controversy over the facts. The highway district is approximately 15 miles in length from east to west by 10 miles in width from north to south, and comprises about 96,000 acres. The main line of the railroad company from Green River, Wyo., to Huntington, Or., extends through the district in an easterly and westerly direction. The proposed highway parallels the railroad, and forms or will form a part of a national highway extending through and beyond the boundaries of the state. The territory within the district is for the most part public domain of the United States, and consists of arid sagebrush land, a part of which is susceptible of cultivation if water is made available for irrigation; but there is no present prospect that water will ever be available for that purpose. There are no natural resources of any kind within the district, and the local business of the railroad therein is little more than nominal. All the farms within the district, except two, have been abandoned. In the year 1921, the railroad company owned 93.4 per cent. in value of all property within the district, and this percentage was slightly increased in the year 1922, because of depreciation in the value of the remaining property. The highway, when constructed, will contribute in no way to the business of the railroad company. On the contrary, the highway will have a tendency to divert business from the railroad. These and other facts, conceded by the parties to be true, are set forth with greater detail in the opinion of the court below and need not be repeated here. Oregon Short Line Railroad Co. v. Kimama Highway Dist. (D.C.) 287 F. 734.

The appellants contend that there is a difference between a general tax and a local assessment; that the former is not based upon special or local benefits; that this is a tax, and not a local assessment; and that the power of taxation, in its very nature, acknowledges no limits and involves the power to destroy. The distinction relied upon, no doubt, exists; but, broad as is the general power of taxation, we cannot concede that it knows no limits, in a case like this. A highway district, in the state of Idaho, is not a political municipality, and is not created for general governmental purposes. As said by the Supreme Court of that state in Shoshone Highway District v. Anderson, 22 Idaho, 109, 125 P. 219:

'A highway district, as intended by this act, is not a political municipality. It is not created for the purpose of government. It is an entirely different kind of municipality from that of a city, town, or village. Its powers are specially limited to the construction of highways upon the lines of benefits to the inhabitants and the property within the territory embraced within the district. It is made a taxing district, and consists of such territory as may be determined by the county commissioners in creating the same. It is contemplated by the provisions of the statute that the property and the people of the entire district are interested in the construction and improvement of the public highways of the district, and it is created for a special purpose, to wit, the assessment of property within the district for the sole and only purpose of improving the highways within the district.'

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