Town of Clayton v. Colorado & S. Ry. Co.

• Decision Date: 21 July 1931
• Docket Number: No. 325.,325.
• Citation: 82 ALR 417,51 F.2d 977
• Parties: TOWN OF CLAYTON v. COLORADO & S. RY. CO. et al.
• Court: U.S. Court of Appeals — Tenth Circuit

82 ALR 417, 51 F.2d 977 (1931)

TOWN OF CLAYTON v. COLORADO & S. RY. CO. et al.

No. 325.

Circuit Court of Appeals, Tenth Circuit.

July 21, 1931.

Myles P. Tallmadge, of Denver, Colo., and Hugh B. Woodward, of Albuquerque, N. M. (Frank O. Blue, of Clayton, N. M., and Pershing, Nye, Tallmadge, Bosworth & Dick, of Denver, Colo., on the brief), for appellant.

J. L. Rice, of Denver, Colo. (O. P. Easterwood, of Clayton, N. M., J. Q. Dier and A. C. Scott, both of Denver, Colo., and J. C. James, of Chicago, Ill., on the brief), for appellees.

Before LEWIS, PHILLIPS, and McDERMOTT, Circuit Judges.

PHILLIPS, Circuit Judge.

The Town of Clayton brought this suit against the railway company and the two trust companies to foreclose a street improvement lien against the property of the railway company abutting on the street improved. The trial court sustained a motion to dismiss the bill, and the town has appealed.

The town initiated a street improvement proceeding under the so-called Provisional Order Street Improvement statute of New Mexico, chapter 42, N. M. Laws 1903 (sections 3665 to 3671, N. M. St. Ann. 1915 Code), as amended by chapter 152, N. M. Laws 1919, and chapter 16, N. M. Laws 1927. Among the streets improved was Front Street between the northerly line of its intersection with Chestnut Street and the southerly line of its intersection with Maple Street. The right-of-way of the railway company abuts the western boundary of such portion of Front Street. Such abutting portion of the right-of-way is 300 feet in width and on it are located the main line and sidetracks of the railway company, and grain elevators, warehouses, coal-yards, and other industrial structures and plants of lessees of the railway company.

The town adopted Ordinance No. 172 on August 27, 1928, which assessed against such abutting portion of the right-of-way east of the center median line thereof as abutting property $6,590.39 as its proportionate share of the cost of such improvement, under the provisions of section 3669, supra, as amended by chapter 152, § 3, supra. This section, before its amendment in 1919, read as follows:

"After the making of such contract, said city council or board of trustees shall determine what portion of such work shall be paid by such abutting property, and the owners thereof, and shall assess to each lot or parcel of land abutting upon such street or alley or part thereof so to be improved its proportionate share of such total amount."

The amendment added the following language:

"In case of the improvement of any street except as otherwise provided herein, the cost of the improvement of each street intersection, except the share to be paid by street or other railway companies, shall be assessed upon all the frontage of the street to be improved, and on the intersecting streets within a distance of one-half block in each direction from such intersection, in the proportion that the frontage of each piece of real estate on the street improved or on any intersecting street, or on both within said distance bears to the total frontage of all real estate similarly situated; and the cost of each alley intersection shall be assessed upon all of the real estate in the same block in proportion to the frontage on the street improved; provided, that in the case of lots or parcels of irregular shape or of less than the regular length, the governing body shall be clothed with full authority to determine what property should be assessed for the costs of improving such lots or parcels, and to make equitable assessments against such property as shall have been determined to be benefited by the improvement of the street or streets, alley or alleys, abutted on by such lots of irregular shapes or sizes. The governing body of any municipality shall have power to assess against the owner or owners of any railroad or street railroad occupying or abutting any highway ordered to be improved as aforesaid, the whole cost of the improvements between or under the rails and tracks of said railroad or street railroad, and the two feet on each side of said track or tracks, and shall have power by ordinance to levy a special assessment upon said railroad or street railroad and its roadbed, ties, rails, fixtures, chattels, rights and franchises, which shall constitute a lien thereon, superior to any other lien or claim, except state, county and municipal taxes, and which may be enforced either by sale of said property in the manner provided here, or by suit against the owner. The ordinance levying said assessment shall prescribe when the same shall become due and delinquent and the rate of interest payable thereon."

Counsel for defendants contend that the effect of this amendment was to limit the assessment of railway company property for a street improvement to the cost of the improvement between or under the rails and tracks of such railway company and for two feet on each side thereof, situated within the boundaries of such improvement, and to exempt it from all other assessments for such improvement.

The primary rule in the construction of statutes is to ascertain and give effect to the intent of the legislative body. Stevens v. Nave-McCord Merc. Co. (C. C. A. 8) 150 F. 71, 75; Balanced Rock S. A. v. Manitou (C. C. A. 10) 38 F.(2d) 28, 30; Moffat Tunnel Imp. Dist. v. Denver & S. L. R. Co. (C. C. A. 10) 45 F. (2d) 715, 723. Where the language of a statute is plain and unambiguous, and conveys a clear and definite meaning, resort must not be had, ordinarily, to rules of construction, but the statute must be given its plain and obvious meaning. United States v. Mo. Pac. R. Co., 278 U. S. 269, 277, 49 S. Ct. 133, 73 L. Ed. 322; Duke Power Co. v. Commissioner (C. C. A. 4) 44 F. (2d) 543; Eclipse Lumber Co. v. Iowa Loan & T. Co. (C. C. A. 8) 38 F. (2d) 608, 610. Where, however, the language is of doubtful meaning, or where adherence to the strict letter would lead to injustice or absurdity, or result in contradictory provisions, it devolves upon the court to ascertain the true meaning. United States v. Katz, 271 U. S. 354, 357, 46 S. Ct. 513, 70 L. Ed. 986; In re Chapman, 166 U. S. 661, 667, 17 S. Ct. 677, 41 L. Ed. 1154; United States v. Kirby, 7 Wall. 482, 486, 487, 19 L. Ed. 278. The general design and purpose of a statute should be kept in mind and its provisions should be given a fair and reasonable construction with a view to effecting its purpose and object. Low Wah Suey v. Backus, 225 U. S. 460, 475, 32 S. Ct. 734, 56 L. Ed. 1165; Takao Ozawa v. United States, 260 U. S. 178, 194, 43 S. Ct. 65, 67 L. Ed. 199; Feitler v. United States (C. C. A. 3) 34 F. (2d) 30, 33.

It frequently happens that the true intention of a legislative body is not expressed by the language employed in a statute, when literally construed. In such cases, the intent of such legislative body can only be effectuated by a departure from a literal interpretation of the language employed. Where such intention is plainly discernible from the provisions of the statute when considered as a whole, the real purpose and intent of the legislative body will prevail over the literal import of the words employed. Holy Trinity Church v. United States, 143 U. S. 457, 12 S. Ct. 511, 36 L. Ed. 226; U. S. for use of Hill v. American Surety Co., 200 U. S. 197, 203, 26 S. Ct. 168, 50 L. Ed. 437; Jones v. Guaranty & I. Co., 101 U. S. 622, 626, 25 L. Ed. 1030; Barrett v. Van Pelt, 268 U. S. 85, 90, 45 S. Ct. 437, 69 L. Ed. 857; Fleischman Const. Co. v. United States, 270 U. S. 349, 360, 46 S. Ct. 284, 70 L. Ed. 624; Baltzell v. Mitchell (C. C. A. 1) 3 F.(2d) 428, 430; London & L. I. Co. v. Smoot, 52 App. D. C. 378, 287 F. 952, 956.

The original act made express provision for assessing the cost of the improvement against abutting property. The phrase abutting property includes abutting railroad property without specific mention thereof. Louisville & Nashville R. Co. v. Barber Asphalt Paving Co., 197 U. S. 430, 25 S. Ct. 466, 49 L. Ed. 819; Heman Const. Co. v. Wabash R. Co., 206 Mo. 172, 104 S. W. 67, 12 L. R. A. (N. S.) 112, 121 Am. St. Rep. 649, 12 Ann. Cas. 630; Marion B. & E. Traction Co. v. Simmons, 180 Ind. 289, 102 N. E. 132; C., M. & St. P. R. Co. v. Churdan, 196 Iowa, 1057, 195 N. W. 996; Figg v. Louisville & N. R. Co., 116 Ky. 135, 75 S. W. 269; Forest v. Atlantic Coast Line R. Co., 159 N. C. 547, 75 S. E. 796; Kinston v. Atlantic & N. C. R. Co., 183 N. C. 14, 110 S. E. 645; Mo., K. & T. R. Co. v. Tulsa, 45 Okl. 382, 145 P. 398; Okla. R. Co. v. Severns Paving Co., 67 Okl. 207, 170 P. 216, 10 A. L. R. 157.

Had the legislative body intended to exempt railway property from assessment as abutting property, the natural and ordinary method would have been to have added an exception to the general language of the original act. This it did not do. Instead it left undisturbed the original act which included abutting railway property and added thereto an amendment purporting to grant additional power to assess railway property.

The introductory language of the next to the last sentence of the amendment, "the governing body of any municipality shall have power to assess against the owner or owners of any railroad or street railroad occupying or abutting," is in the form of a grant of power rather than an exemption. Nevertheless, counsel for the railway company maintain that the word abutting was inserted therein to exempt abutting railway property from assessment.

In that portion of such sentence which reads, "the whole cost of the improvement between or under the rails and tracks of...