Schevenell v. Blackwood

• Decision Date: 27 September 1929
• Docket Number: No. 8441.,8441.
• Parties: SCHEVENELL v. BLACKWOOD, State Highway Commissioner, et al.
• Court: U.S. Court of Appeals — Eighth Circuit

35 F.2d 421 (1929)

SCHEVENELL v. BLACKWOOD, State Highway Commissioner, et al.

No. 8441.

Circuit Court of Appeals, Eighth Circuit.

September 27, 1929.

W. C. Rodgers, of Nashville, Ark., for appellant.

Hal L. Norwood, Atty. Gen., of Arkansas, and Walter G. Riddick and Charles T. Coleman, both of Little Rock, Ark., for appellees.

Before BOOTH, Circuit Judge, and SANBORN and DEWEY, District Judges.

SANBORN, District Judge.

The appellant — plaintiff in the court below — a resident of Tennessee, brought this suit against the appellees as defendants, the officers of the state of Arkansas constituting the highway commission of that state, attacking the constitutionality of certain of the laws of Arkansas relating to the construction and maintenance of state highways, under which the defendants have acted. Arkansas has adopted the method now used by many, if not most, of the states of the Union, of establishing, constructing, and maintaining a system of state highways out of revenues derived from the owners and operators of motor vehicles using such highways, a portion of which revenues are assessed upon the basis of gasoline purchased and consumed in the operation of such vehicles. In anticipation of the collection of the revenues, the law authorizes the issuance of bonds or notes in aid of the construction of the highways.

The bill of complaint contains, in addition to allegations of fact, various conclusions of mixed law and fact, conclusions of law, and argumentative matter, and asks for various forms of equitable relief, injunctive and otherwise. The defendants moved to dismiss the original bill for want of equity; the motion was granted with leave to amend; amendments were made; a motion was again interposed by the defendants to dismiss the amended bill for the same cause, and that motion was granted. The plaintiff appealed, and assigned as error the granting of both motions. Having amended the original bill after its dismissal, it is not apparent how the sustaining of the motion to dismiss that bill can be assigned as error, but, as substantially the same questions are presented by the appeal from the order dismissing the amended bill, the question is unimportant.

The court below construed the complaint as constituting an attack upon the constitutionality of the laws referred to. The plaintiff now contends that certain of the allegations of the complaint present issues of fact which could not be determined upon a motion to dismiss. In order to determine in what respect it is claimed that the court below fell into error, it is necessary to have recourse to the plaintiff's brief. All questions presented by the assignment of errors which are not argued in the brief are waived. Denver Live Stock Commission Co. v. Lee, (C. C. A.) 18 F.(2d) 11.

Quoting from the plaintiff's brief:

"In paragraph VII of the original bill, it is charged that appellees are misappropriating and squandering the taxes being imposed on and collected from the appellant `in that they are paying large and excessive amounts for the roads and bridges being built, maintained and constructed' by them, etc.

"This is strictly a matter of fact. If true, it is a taking of appellant's property without due process of law."

This same contention was evidently made before the trial court, who answered it in his memorandum as follows:

"The complaint charges in general terms misapplication of funds by the defendant. The allegation upon that point is not specific. There is no instance alleged in which there has been a misapplication of funds. The allegation seems to be based upon the theory that the funds are being misapplied by the Highway Commission of Arkansas simply because it is obeying the statutes which are charged to be unconstitutional."

We concur in this statement. If the laws pursuant to which the payments were made are unconstitutional, the payments were unauthorized. If the payments were authorized by law, the statement by the plaintiff that the payments were large and excessive is not equivalent to charging that they were made in violation of law, and at best constitutes nothing more than a mere statement of opinion.

The plaintiff cites the case of Crampton v. Zabriskie, 101 U. S. 601, 25 L. Ed. 1070, in which the court said (page 609):

"Of the right of resident tax-payers to invoke the interposition of a court of equity to prevent an illegal disposition of the moneys of the county or the illegal creation of a debt which they in common with other property-holders of the county may otherwise be compelled to pay, there is at this day no serious question."

There is no dispute as to the correctness of that statement. The only illegal disposition of money by the defendants which could be inferred from the plaintiff's complaint is that it was made under laws alleged to be unconstitutional.

Quoting further from the plaintiff's brief:

"In paragraph IX of the original bill it is averred that the thirteen million dollars worth of bonds or certificates of indebtedness then outstanding, and for which he is being taxed to pay, `were actually executed and signed beyond the boundaries of the State of Arkansas by the officials of Arkansas designated for this purpose,' that is, the governor, state treasurer and state highway commissioner (1927 Arkansas Act No. 11, Section 5), and said bonds or notes are, and should be declared, void, and appellant, as a taxpayer, relieved of this tax or their payment.

"Of course, it is necessarily a question of fact as to whether or not they were executed out of the state."

Whether this question was argued before the trial court does not appear. It is not referred to in his memorandum. The plaintiff cites, in support of his theory that the signing of the notes outside of the state would invalidate them, two cases: Chisholm v. Georgia, 2 Dall. 419, 446, 1 L. Ed. 440, holding that a governor of a state is a mere executive officer, that his general authority is limited by the constitution of the state, and that he is without power to spend the public money except as authorized by the Constitution or by law; and the case of Ex parte Crump, 10 Okl. Cr. 133, 135 P. 436, 47 L. R. A. (N. S.) 1036, in which it was held that the functions of the chief magistrate are for the benefit of the state, and are local to it, and that the constitutional functions of his office cannot be exercised outside of the state; the effect of his absence from the state being to suspend his constitutional functions.

These authorities clearly do not justify the position of the plaintiff here. The act in question authorized the issuance of these notes, and authorized the officers constituting the highway commission to execute and sell them. The Governor, in signing the notes, was exercising no constitutional function, but was acting merely as a member of the commission. The actual execution of the notes was a mere ministerial act, and there could be nothing less vital to their validity than the place in which that act was performed. There is no claim that there was any other irregularity connected with their issuance or that the money was not duly received for them. To hold that a state might borrow thirteen millions of dollars and issue notes therefor, which notes might thereafter be repudiated because they were signed by state officers outside of the state, would be absurd.

It now appears that, after the order dismissing the amended bill was made, the General Assembly of the state of Arkansas, at a special session of 1928, by Act No. 6, approved October 3, 1928 (Acts of Ark. 1928, Special Session, p. 27), specifically recognized all state highway notes outstanding as valid obligations of the state of Arkansas. By virtue of this law, of which we take judicial notice, the question would appear to be moot, in any event. As stated by Judge Hook in the case of Ridge v. Manker (C. C. A.) 132 F. 599, 601:

"An appellate court may avail itself of authentic evidence outside of the record before it of matters occurring since the decree of the trial court when such course is necessary to prevent a miscarriage of justice, to avoid a useless circuity of proceeding, to preserve a jurisdiction lawfully acquired, or to protect itself from imposition or further prosecution of litigation where the controversy between the parties has been settled, or for other reasons has ceased to exist."

The plaintiff in his brief next says:

"Section X of the original complaint alleges that appellees have forceably, and without any right or authority, taken possession of what is commonly known as the Harahan Viaduct, a wooden bridge or structure extending from the west end of the Harahan Bridge across the Mississippi River, at Memphis, Tennessee, to the St. Francis Levee, a distance of about 2.1 miles and are exacting of the appellant, and all others, `passing over said bridge a toll, ranging from five cents to one dollar depending on the vehicle, the article or number of persons passing, in violation' of his rights under both the state and national constitutional provisions, that is, that his money, tolls or property is being taken or required without due process of law, `simply by their (appellees) ability to command the force and power of the State of Arkansas for this illegal purpose,' and this in spite of the fact `that said bridge or viaduct was fully and completely paid for years ago * * * it being a part of the public roads and bridges of Crittenden County, Arkansas.'

"Under the pleadings this must necessarily be taken as true also."

Act No. 104, 1927 Arkansas Acts, page 282, entitled "An Act to authorize the construction of toll bridges by the State Highway Commission, such bridges to become free bridges when sufficient tolls are collected to pay the cost of construction," provides:

"Section 1. The State Highway Commission is hereby authorized to construct and operate toll bridges on the state highway system, and to fix the rates and collect the tolls...