Wabash Ry. Co. v. South Daviess County Drainage Dist.

• Decision Date: 03 May 1926
• Docket Number: No. 7193.,7193.
• Parties: WABASH RY. CO. v. SOUTH DAVIESS COUNTY DRAINAGE DIST.
• Court: U.S. Court of Appeals — Eighth Circuit

12 F.2d 909 (1926)

WABASH RY. CO. v. SOUTH DAVIESS COUNTY DRAINAGE DIST.^*

No. 7193.

Circuit Court of Appeals, Eighth Circuit.

May 3, 1926.

Homer Hall, of St. Louis, Mo. (N. S. Brown, of St. Louis, Mo., S. J. Jones, of Carrollton, Mo., and Dudley & Brandom, of Gallatin, Mo., on the brief), for plaintiff in error.

Nat G. Cruzen, of Gallatin, Mo., and A. G. Knight, of Trenton, Mo., for defendant in error.

Before LEWIS, Circuit Judge, and FARIS and PHILLIPS, District Judges.

FARIS, District Judge.

This is a writ of error brought by the Wabash Railway Company to reverse the finding and judgment of the trial court upon certain exceptions filed by the plaintiff in error to the report of the commissioners appointed to assess damages and benefits in the matter of the organization of the South Daviess County drainage district. For brevity and convenience the plaintiff in error will hereinafter be referred to as the railway, and defendant in error as the district.

Upon the coming in of a report of the commissioners, assessing benefits of $90,000 against the railway and damages in its favor for some $50 for right of way, appropriated for a lateral ditch which crosses the railway at a point where there has not heretofore been any natural waterway, the railway filed exceptions. After a lengthy hearing before the court, a jury being waived, the benefits assessed against the railway were reduced to some $63,000. The trial court refused to allow to railway its exception to the report of the commissioners, for that they failed to allow damages for the cost of building and maintenance of a bridge over the above-mentioned lateral drainage ditch.

There are some 39 errors alleged. Some of these attack the law as unconstitutional on divers phases, and because violative of various provisions of the federal Constitution. In addition to the 39 errors urged and the several attacks on the constitutionality of the statutes, there are numerous others bottomed on the refusal of the court to declare the law as requested by the railway.

All these alleged errors notwithstanding, three points would casually seem to fully cover about all of the questions raised by the railway. These are: (a) That the court erred in refusing to declare the law to be that the feasibility of the proposed drainage scheme, or plan for reclamation, could be attacked upon these exceptions and after the report of the commissioners has been filed; (b) that the plan is not feasible, but dangerous as to the railway, and the same will be a menace, and not a benefit; that is to say, that, instead of being benefited by the plan for reclamation as adopted, the railway will be damaged; and (c) that damages should have been allowed by the court for the cost and expense of building and maintaining a railroad bridge across the artificial waterway created by the lateral diversion ditch from Muddy creek to its junction with the main drainage canal. In connection with the discussion of these questions, the constitutional objections urged will be considered.

It may be wise, and an aid to an understanding of the discussion made necessary, to begin with the premise that a drainage district, created under the provisions of the statutes of Missouri, as was this at bar, is a political subdivision of the state, which the state has the power to create under its police powers, and which exercises prescribed statutory functions of government within the territorial limits of the district; that is to say, it is a quasi public corporation, and not a private corporation, in any sense or upon any view. Mound City, etc., Co. v. Miller, 170 Mo. 240, 70 S. W. 721, 60 L. R. A. 190, 94 Am. St. Rep. 727; In re Birmingham Drainage District v. Railroad, 266 Mo. 60, 178 S. W. 893; Morrison v. Morey, 146 Mo. 543, 48 S. W. 629.

The question of the feasibility of the plan for reclamation as mooted by the railway on this record is a limited one, as contradistinguished from a thorough-going one. In other words, it is not contended that as to lands and property within the district, other than that of the railway, benefits will not accrue exceeding in amount the cost of the work proposed. This is made clear by the assignment of error in railway's brief, wherein this contention of lack of feasibility is expressly limited to "the feasibility and legality of the plan for reclamation as it relates to this exceptor and its property." This limitation is further curtailed by the statements in railway's brief that it "does not contend that the assessment of benefits to lands subject to overflow is not legal, or that the property of the exceptor in this district is not subject to overflow and injuriously affected thereby. It does contend, however, that this project, in so far as it affects the exceptor, is not feasible or legal, and that, instead of being a benefit, it will work irreparable injury to the exceptor's property, for which injury and damage no adequate compensation was allowed or can be made."

It will thus be seen that the attack as to the question of feasibility vel non is largely, if not wholly, merged in and comprehended by the second contention; that is to say, there is no attack upon the general feasibility of the plan for reclamation, which is tacitly conceded, but it is urged that the plan, so far from benefiting the railway, will damage it, and that for these damages no adequate compensation has been or can be made.

In the light of this situation it makes no difference whether or not it was error to refuse to declare the law as requested on the point by the railway. For the record discloses that the matter of feasibility, in producing benefits or damages to the property of the railway, was gone into fully by the court; that a cloud of witnesses were offered and heard, pro and con, upon this question. Not only were witnesses heard, but in other declarations of law the precise question was ruled, as will be seen from declarations of law given, and hereinafter set out in the discussion, touching whether as a fact the railway would be helped or hurt by the proposed work. If, then, it was error, and we need not and do not rule the point, it was wholly harmless, because, not only was all of the testimony offered upon the point heard by the court, but, regardless of his refusal to declare the law as requested by the railway, he fully considered and carefully weighed this identical question, as is shown by his memorandum opinion. Not only did he consider it, but by reason of such consideration he deducted some $27,000 from the benefits found and reported by the commissioners against the railway. So, if it was error, and we repeat it is not necessary to decide the question, it is cured by the Act of February 26, 1919, 40 Stat. 1181 (Comp. St. Ann. Supp. 1919, § 1246).

The contention next made by the railway seems to be that the statute, which provides for the assessment of benefits against railroads and their property, is not only invalid, but that it was incorrectly applied by the trial court in making the assessment here against the property of the railway. Generally, and upon particular phases, the statute has been declared constitutional by the Supreme Court of Missouri, as a valid exercise of the police power of the state. Mound City, etc., Co. v. Miller, 170 Mo. 240, 70 S. W. 721, 60 L. R. A. 190, 94 Am. St. Ry. 727; Little River Drainage District v. Railroad, 236 Mo. 94, 139 S. W. 330. But, while objections have been numerously made to the validity of this statute by railroads, which were sought to be assessed and taxed for benefits, and while the questions here raised may well have been included within the judgments rendered (Little River Drainage District v. Railroad, supra; Birmingham Drainage District v. Railroad, supra), yet no case has been found among the Missouri decisions, nor have counsel cited any, which rules the precise point made in the attack here. In substantial effect, however, the case of Birmingham Drainage District v. Railroad, 274 Mo. loc. cit. 152, 202 S. W. 407, covers some phases of this objection, as we read on the page above cited, thus:

"The assessment and levy of taxes is a legislative function to be exercised in such manner and by such agencies as the Legislature may designate within the limits of its power. In the assessment and levy of taxes for street improvements it has generally fixed rules resting substantially on the frontage of lots benefited by the improvement, while in this case it has undertaken to secure equality by an assessment of the actual value of the benefits accruing to the property to be subjected to the tax. As we said in the Houck Case: `In selecting the subjects of this class of taxation, and in the assessment and levy of the taxes, it is not expected that even approximate perfection will be attained. The discretion of the Legislature, subject only to well-defined constitutional restrictions, must be full and untrammelled; otherwise, revenue laws would never pass the region of judicial debate into the region of execution.' The Supreme Court of the United States, in the same case Houck v. Little River Drainage Dist., 239 U. S. 265, 36 S. Ct. 61, 60 L. Ed. 266, said: `The state in its discretion may lay such assessments in proportion to position, frontage, area, market value, or to benefits estimated by commissioners,' and cites numerous authorities. In the Egyptian Levee Case this court, through Judge Napton, said: "In every form of taxation, whether general or local, it is certainly desirable and proper that the burden should be distributed as near as may be in proportion to the benefit derived, and constitutional injunctions and restrictions, where they have been attempted on this subject at all, are designed to promote this end. But where there is an absence of constitutional provisions, it is not in the power of the courts to enforce any fancied scheme of equality seeming to them more just than the one adopted by the Legislature....