N. Pac. Ry. Co. v. Richland Cnty.

• Decision Date: 29 June 1914
• Citation: 148 N.W. 545,28 N.D. 172
• Parties: NORTHERN PAC. RY. CO. v. RICHLAND COUNTY.
• Court: North Dakota Supreme Court

28 N.D. 172

148 N.W. 545

NORTHERN PAC. RY. CO.

v.RICHLAND COUNTY.

Supreme Court of North Dakota.

June 29, 1914.

Syllabus by the Court.

A railroad right of way, if actually benefited, may be assessed for a local drain which is constructed under the provisions of chapter 23, Rev. Codes 1905, and this irrespective of the fact whether the fee is in the railroad company or not.

A supreme court can announce no public policy of its own but merely what it believes to be the public policy of the people of the commonwealth by which it is created. It has no power to create or command but merely to construe, and where the people have spoken, either in the form of a constitutional enactment or a valid and constitutional statute, it must be controlled by their decisions and conclusions.

Chapter 23, Rev. Codes 1905, which provides for the assessment of railroad rights of way for the benefits conferred by the construction of local drains, does not violate the provisions of the fourteenth amendment to the federal Constitution nor the so-called commerce clause (section 8, art. 1) of that instrument, even though it is sought to be applied to interstate lines.

Appeal from District Court, Richland County; Allen, Judge.

Action by the Northern Pacific Railway Company against Richland County. Judgment for defendant, and plaintiff appeals. Affirmed.

This action was brought by the Northern Pacific Railway Company against Richland county, for the purpose of determining adverse interests in and to an easement or right of way of the plaintiff company; the claim of the plaintiff being for a franchise or right of way as opposed to an ownership in fee. The answer admits the ownership of the franchise or easement but asserts a lien arising from a levy for benefits assessed against the property for and on account of the construction of a drain under chapter 23, Rev. Codes 1905. Judgment was rendered in the district court decreeing a lien in favor of the defendant to the amount of $3,180.70, and an appeal has been taken to this court upon the judgment roll merely and for the sole purpose of testing the legality of the proceedings.Watson & Young, of Fargo, and Purcell & Divet, of Wahpeton, for appellant. C. J. Kachelhoffer, Gustav Schuler, and W. S. Lauder, all of Wahpeton, and John L. Koeppler, of Beach, for respondent.

BRUCE, J. (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 violate both the federal Constitution and the fourteenth amendment thereto, and is not contemplated by chapter 23, R. C. 1905. It is claimed that chapter 23 only contemplates the taxation of property in which the fee exists in the person sought to be charged. 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 low lands 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 board 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 section 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 which each municipality and lot or tract of land benefited by the drain for which the tax is levied is liable to pay on account of procuring the right of way or the construction of any drain, or both according to the per cent. which by section 1826 it is required to fix and determine, a copy of which shall be served on the clerk or auditor of each municipality against which taxes are to be assessed. Such list shall thereupon be filed in the office of the county auditor of the county in which the municipalities and lands benefited by the drain are situated, and the auditor shall thereupon extend upon the tax lists as a special tax as provided by law the several amounts shown by the drain commissioners' list, specifying in such tax lists the particular drain for the construction or procurement of the right of way of which the special tax is assessed, which special tax shall be collected and enforced in the same manner as other taxes. When such special tax is for the right of way the same shall when collected be paid by the county treasurer into court for the benefit of the owners of the right of way. And the common council, or other proper taxing authorities of each city, or other municipality, against which such assessment is made as aforesaid, shall include in the first general tax levy thereafter made in said city or municipality, the amount so assessed against it, by the board of drain commissioners, and the same shall be extended upon the tax lists of the county for the current year by the county auditor against all the taxable property in such city or municipality in the same manner and with the same effect as other taxes are extended.”

Section 1832:

“The drain taxes shall be collected by the county treasurer and all moneys so collected shall be credited to the drain fund to which they belong and the county treasurer shall be the treasurer of such drain funds. Payment of all expenses and costs of locating and constructing any drain shall be made by the board of drain commissioners issuing warrants in such amounts and to such persons as by such board may be found due. All warrants drawn by such board in payment for the right of way or construction of any drain shall be payable from the proper drain fund and shall be receivable for the taxes levied for the right of way or construction of such drain by the treasurer. All such warrants after presentation to the county treasurer for payment, if not paid for want of funds, shall be registered by the county treasurer and thereafter shall bear interest at the rate of seven per cent. per annum.”

Section 1837:

“Drains may be laid along, within the limits of or across any public road, and when so laid out and constructed or when any road shall thereafter be constructed along or across any drain it shall be the duty of the board of county commissioners, or township supervisors, as the case may be, to keep the same open and free from all obstructions. A drain may be laid along any railroad when necessary, but not to the injury of such road, and when it shall be necessary to run a drain across a railroad it shall be the duty of such railroad company, when notified by the board of drain commissioners to do so, to make the necessary opening through said road and to build and keep in repair suitable culverts or bridges.”

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...