DURHAM PUBLIC SERVICE CO. v. CITY OF DURHAM(1923)
[261 U.S. 149, 150] Mr. J. S. Manning, of Raleigh, N. C., for plaintiff in error.
Mr. S. C. Chambers, of Durham, N. C., for defendant in error.
Mr. Justice McREYNOLDS delivered the opinion of the Court.
As the cause is properly here upon writ of error-Atlantic Coast Line v. Goldsboro, 232 U.S. 548, 555 , 34 S. Sup. Ct. 364; Act September 6, 1916, 39 Stat. 726 (Comp. St. 1214)-we deny the petition for certiorari.
Plaintiff in error was incorporated by the Legislature of North Carolina in 1901 (Priv. Laws 1901, c. 25) and empowered to operate car lines in the streets of Durham when so authorized by the municipal authorities. Shortly thereafter and in pursuance of an agreement they granted the necessary authority. The Supreme Court of North Carolina ( Durham v. Durham Public Service Co., 182 N. C. [261 U.S. 149, 151] 333, 109 S. E. 40) affirmed a judgment of the superior court which sustained an assessment of $102,942.30 made in 1920 against the corporation for the cost of paving that portion of Main street occupied by its tracks. It refused to make the improvement as required by an ordinance; thereupon the city caused the work to be done and assessed the cost against it. The formality of the proceeding is not questioned.
Recovery is resisted upon two grounds: (1) That the original contract under which the railway lines were constructed and operated exempts and corporation from liability to pave the roadbed. Constitution, 10, art. 1 . (2) That the assessment is excessive, unreasonable and wholly arbitrary and to enforce it would deprive plaintiff in error of property without due process of law and deny it the equal protection of the laws, contrary to the Fourteenth Amendment.
The original contract with the city is dated February 4, 1901, and the claim of exemption rests upon the following clause therein:
The court below held that while this contract imposes [261 U.S. 149, 152] no liability for paving, neither does it grant exemption therefrom. And we agree with their conclusion. Such exemptions must plainly appear. The general rule is that doubts as to provisions in respect of them must be resolved in favor of the municipality or state. Cleveland Electric Ry. Co. v. Cleveland, 204 U.S. 116, 130 , 27 S. Sup. Ct. 202.
Purporting to proceed under 'An act relating to local improvements in municipalities,' ratified by the General Assembly of North Carolina, February 27, 1915-chapter 56-the governing body of Durham by resolution provided for improving Main street and directed plaintiff in error to pave between and for 18 inches outside its tracks. The company refused to comply and the challenged assessment followed. Among other things the act of 1915 provides:
By agreement of parties, the cause was tried without a jury and the court found the facts. Those so found and presently relied upon to show the arbitrary and unreasonable character of the assessment follow:
That the section of Main street over which the assessment extends is 2.02 miles in length and including double tracks there are 2.65 miles of track on Main street; that there are 154 abutting property owners upon this portion of Main street; that the assessment against said company for paving Main street is $102,942.30 and against said 154 property owners is $89,909.56; that the value of the property of this defendant on Main street within the area which is directly affected by said paving is $100,000 and the assessed value of said abutting property is approximately $5,083,250 exclusive of the value of property on Main street not taxed.
That the cost to the Traction Company of furnishing new rails and new cross-ties, of taking up and relaying its track on Main street and doing other work preparatory to the placing of the pavement upon Main street was $75,108.85, which has been paid by the Traction Company and which said outlay and expenditure was made at the order of the city of Durham; that during the twelve months ending May 31, 1921, the company's railway showed a loss of $17,388.73 of meeting the operating expense and allowance for depreciation and if the company is required to pay the paving assessment of the city of Durham as demanded, to wit, one-tenth of said assessment each year, with interest, then there will be an addition l expense of one-tenth of $ 102,942.30 plus interest and depreciation on same; that the gross earnings of said company from all sources for the year ending December [261 U.S. 149, 154] 31, 1920, were approximately $540,000, the net earnings $147,000, the company having other valuable property and business not on Main street, including other railway not on Main street.
The court below held the recited facts insufficient to show that the municipal authorities acted unreasonably or arbitrarily, and we are unable to say that this was error. Counsel concede that the Constitution of North Carolina reserves to the Legislature power to alter or repeal corporate charters; also that, in general, the Legislature either directly or through recognized governmental agencies may impose assessments for local improvements and prescribe the basis of apportionment. But the claim is that the Legislature undertook arbitrarily to direct plaintiff in error to pave more than one-third of the street, while the owners of more valuable property fronting thereon are required to pay out much less and are assessed upon the front-foot basis.
Gast Realty & Investment Co. v. Schneider Granite Co., 240 U.S. 55 , 36 Sup. Ct. 254; Hancock v. City of Muskogee, 250 U.S. 454 , 39 Sup. Ct. 528; and Kansas City Southern Ry. Co. v. Road Improvement District, 256 U.S. 658 , 41 Sup. Ct. 604-are cited in support of this insistence; but they do not go so far. The power of the Legislature to make reasonable classifications and to impose a different burden upon the several classes cannot be denied. There are obvious reasons for imposing peculiar obligations upon a railway in respect of streets occupied by its tracks. The facts and circumstances disclosed by the present record are not sufficient to justify us in overruling the judgment of the state court, which held that the assessment was not the result of arbitrary or wholly unreasonable legislative action. Sioux City Street Ry. Co. v. Sioux City, 138 U.S. 98, 107 , 108 S., 11 Sup. Ct. 226; Fair Haven & Westville Ry. Co. v. New Haven, 203 U.S. 379, 388 , 389 S., 27 Sup. Ct. 74; Southern Wisconsin Ry. Co. v. Madison, 240 U.S. 457, 461 , 36 S. Sup. Ct. 400; Great Northern Ry. Co. v. Clara City, 246 U. S. [261 U.S. 149, 155] 434, 436, 437, 38 Sup. Ct. 346; Pacific Gas & Elec. Co. v. Police Court, 251 U.S. 22, 25 , 26 S., 40 Sup. Ct. 79; Milwaukee Elec. Ry. Co. v. Milwaukee, 252 U.S. 100, 104 , 40 S. Sup. Ct. 306, 10 A. L. R. 892.