Oregon Short Line R. Co. v. Clark County Highway Dist.

• Decision Date: 22 October 1927
• Parties: OREGON SHORT LINE R. CO. v. CLARK COUNTY HIGHWAY DIST. et al.
• Court: U.S. District Court — District of Idaho

22 F.2d 681 (1927)

OREGON SHORT LINE R. CO. v. CLARK COUNTY HIGHWAY DIST. et al.

District Court, D. Idaho, E. D.

October 22, 1927.

George H. Smith, of Salt Lake City, Utah, and H. B. Thompson and J. H. McEvers, both of Pocatello, Idaho, for complainant.

R. W. Katerndahl, of Dubois, Idaho, and Burcham & Blair, of Spokane, Wash., for defendants.

Frank L. Stephan, Atty. Gen., and H. O. McDougall, Asst. Atty. Gen., of Idaho.

Before DIETRICH, Circuit Judge, and WEBSTER and CAVANAH, District Judges.

DIETRICH, Circuit Judge.

For a statement of most of the salient facts and certain features of law, reference is made to our decision of January 3, 1927. 17 F.(2d) 125. It now appears that at the date of that decision there were in Idaho 118 highway districts other than defendant, which like it had been organized pursuant to the provisions of the general Highway District Act, which we held to be invalid; and, possibly because of the decision, the state Legislature, then convening, passed certain curative measures, consisting of an omnibus act and 119 special acts, each purporting to validate the proceedings respecting a single district. The omnibus measure was approved February 4, 1927, and the special act relating to the defendant district February 23, 1927. Thereafter the defendant filed its answer, in which, among other things, it set up as a defense these enactments, and the cause is now submitted upon the pleadings, together with a stipulation of facts, the only substantial question for consideration being the validity and efficacy of the curative legislation.

The first section of the omnibus act is as follows:

"Section 1. That whenever the board of county commissioners of any county shall have caused to be described by order made and entered upon its records any defined portion of contiguous territory, located wholly within such county, for the construction, improvement or repair of highways located therein, pursuant to the provisions of the Highway District Law of Idaho, each such defined portion of contiguous territory is hereby recognized as a legal taxing district and body politic of this state and as a highway district for such road purposes, and the creation of each such highway district is hereby validated and legalized." Laws 1927, c. 5.

Read naturally, the language seems to import an attempt to validate all proceedings, future as well as past, which have been or shall be taken "pursuant to the Highway District Law of Idaho." In that view of its scope, it would seem to add nothing to the original act, for it simply makes express a declaration which the original act necessarily implies. If, upon the other hand, with some strain, we restrict its application to past transactions, the objections which plaintiff urges against the so-called special acts would seem to be equally available against it. It lays down no rule of law or principle as a test of validity or invalidity, but simply declares that every district which in its organization has complied with the requirements of the invalid law is valid. There is no intimation of a consideration of local conditions requisite to validity, and upon the other hand there is some affirmative evidence that such considerations were wholly ignored, for the act embraces within its terms such districts as Kimama and Yale, in respect of which the facts have been judicially determined to be such as to preclude valid organization, even by direct action of the Legislature. Oregon Short Line R. R. Co. v. Kimama Highway Dist. (D. C.) 287 F. 734; Id. (C. C. A.) 298 F. 846; Oregon Short Line R. R. Co. v. Yale Highway Dist. (C. C. A.) 8 F.(2d) 676. The mere fact that the act employs comprehensive general terms, instead of designating by name each of the 119 districts, is thought to be immaterial. If, instead of passing 119 identical separate acts, the Legislature had passed a similar single act specifically naming each of the 119 districts, we would have substantially the same result, accomplished in substantially the same manner. We shall therefore restrict our discussion to the Clark County District Act, for in terms it is more specific and comprehensive than the omnibus act, and is susceptible to no objection which cannot with equal force be urged against that measure.

In section 1 of the Clark County Highway District Act (chapter 4, Local and Special Laws of Idaho 1927), after express reference to the local proceedings defining the boundaries of the district, and purporting to organize it, it declares that such district "is hereby created and established as a highway district in said Clark county, and the creation and organization and legal existence thereof as such highway district and as a legal taxing district and body politic and body corporate of this state for highway purposes, under and pursuant to and coextensive with the provisions of the Highway District Law of the state of Idaho (as amended and supplemented by subsequent legislation) are hereby declared, recognized, approved, validated, and legalized, * * * with full legislative powers" respecting highways, with "such other powers and duties as are prescribed by said Highway District Law, as amended and supplemented."

There follow detailed provisions approving and validating all the proceedings taken in the organization of the district, and in the matter of the proposed $100,000 bond issue, including elections and the levy of taxes. Taxes are to be levied annually, sufficient to cover accrued interest and installments of principal of the bonds, "upon the value of the taxable property in said highway district as fixed for state and county taxes." Further analysis is unnecessary, for, admittedly, the act is in form sufficiently comprehensive and explicit to effect its stated purpose.

We first inquire whether it contravenes any provision, particularly the Fourteenth Amendment, of the Constitution of the United States. "The settled general rule is that a state Legislature `may create taxing districts to meet the expense of local improvements and may fix the basis of taxation without encountering the Fourteenth Amendment unless its action is palpably arbitrary or a plain abuse.' Gast Realty Co. v. Schneider Granite Co., 240 U. S. 55 36 S. Ct. 254, 60 L. Ed. 523; Houck v. Little River Drainage District, 239 U. S. 254, 262 36 S. Ct. 58, 60 L. Ed. 266. Ordinarily, the levy may be upon lands specially benefited according to value, position, area, or the front-foot rule. French v. Barber Asphalt Co., 181 U. S. 324, 342 21 S. Ct. 625, 45 L. Ed. 879; Cass Farm Co. v. Detroit, 181 U. S. 396, 397 21 S. Ct. 644, 45 L. Ed. 914; Louisville & Nashville R. R. Co. v. Barber Asphalt Co., 197 U. S. 430 25 S. Ct. 466, 49 L. Ed. 819; Withnell v. Ruecking Construction Co., 249 U. S. 63 39 S. Ct. 200, 63 L. Ed. 479; Hancock v. City of Muskogee, 250 U. S. 454 39 S. Ct. 528, 63 L. Ed. 1081; Branson v. Bush, 251 U. S. 182 40 S. Ct. 113, 64 L. Ed. 215. If, however, the statute providing for the tax is `of such a character that there is no reasonable presumption that substantial justice generally will be done, but the probability is that the parties will be taxed disproportionately to each other and to the benefit conferred the law cannot stand against the complaint of one so taxed in fact.' Gast Realty Co. v. Schneider Granite Co., supra." Kansas City So. Ry. v. Road Imp. Dist. No. 6, 256 U. S. 660, 41 S. Ct. 605, 65 L. Ed. 1151. See, also, Thomas v. Kansas City So. R. Co., 261 U. S. 481, 43 S. Ct. 440, 67 L. Ed. 758.

It appears from the stipulation of facts that the district is substantially conterminous with Clark county, and is approximately 40 miles from north to south and 86 miles from east to west. Plaintiff's line of road runs through it from north to south a distance of 37.5 miles; the right of way, aside from station grounds, being 200 feet in width. In the district there are five stations for the receipt and discharge of passengers and freight. The population of the district is approximately 2,500, and its principal industries are farming and stock-raising, with some mining. The assessed value of all property in the district in 1925 was $4,269,400, of which $2,064,400 was for plaintiff's railroad. The roads upon which the expenditure is to be made are all of general travel and use by the residents of the district, and are to some extent utilized for the purpose of carrying products and commodities to and from complainant's railroad. Two, but only two, of the seven principal highways run parallel to plaintiff's line of railroad. These two constitute a part of the Idaho-Montana Highway, the greater portion of which has been gravel-surfaced, and is being maintained by the state and federal governments. These two roads aggregate only 9 miles in length, and in a measure are of value in enabling the residents to get to the county seat, which is on the railroad, and to shipping points on the railroad. The other roads run in divers directions, and are used in part for local travel and in part for interstate travel, and serve as a means of reaching railroad points.

Under the circumstances, we cannot say that the action of the Legislature, either in validating the organization of the district or in approving the bond issue, with the burden thereof to be borne by all property in proportion to fair value, is palpably arbitrary or discriminatory. True, it would be difficult to trace direct benefit to the plaintiff, or to measure the indirect value; but that may be said as well of most, if not all, other property in the district. And yet highways reasonably well constructed and maintained are commonly regarded as substantially beneficial, if not indispensable, to industrial development. In essential features, the project and the mode of procedure prescribed are not exceptional. The territorial unit approximates that of a normal county, and it is a common function of county government to lay out and maintain highways, and with...