Sidebilder
PDF
ePub

construction. A combination of two or more persons by concerted action to accomplish a purpose either criminal [529] or otherwise unlawful comes within the

accepted definition of conspiracy. Pettibone v. United States, 148 U. S. 197, 203, 37 L. ed. 419, 422, 13 Sup. Ct. Rep. 542. The distinction between a conspiracy and the contemplated offense that forms its object has often been pointed out. United States v. Rabinowich, 238 U. S. 78, 85, 86, 59 L. ed. 1211, 1213, 1214, 35 Sup. Ct. Rep. 682, and cases cited. And we deem it clear that a conspiracy to

commit any offense which, by act of Congress, is prohibited in the interest of the public policy of the United States, although not of itself made punishable by criminal prosecution, but only by suit for penalty, is a conspiracy to commit an "offense against the United States" within the meaning of $37, Criminal Code, and, provided there be the necessary overt act or acts, is punishable under the terms of that section. We have assumed, for the sake of the argument, that under § 2078, Rev. Stat., the United States is confined to the suit for penalty specifically mentioned; but we do not so decide, and in our view the present case does not require an expression of opinion upon that subject. See United States v. Stevenson, 215 U. S. 190, 197, 54 L. ed. 153, 156, 30 Sup. Ct. Rep. 35, et seq.

Judgment reversed, and the cause remanded for further proceedings in conformity with this opinion.

[530] UNITED STATES OF AMERICA, Plff. in Err.,

V.

A. Z. HUTTO.

(See S. C. Reporter's ed. 530.)

Special Assistant to the Attorney General Garnett argued the cause and filed a brief for plaintiff in error.

Mr. Sam K. Sullivan argued the cause, and Mr. Henry S. Johnston filed a brief for defendant in error.

ion of the court: Mr. Justice Pitney delivered the opin

This is a writ of error under the

Criminal Appeals Act of March 2, 1907 (chap. 2564, 34 Stat. at L. 1246, Comp. Stat. § 1704, 6 Fed. Stat. Anno. 2d ed. P. 149), to review a judgment sustaining essential respects, is precisely like that a demurrer to an indictment which, in passed upon in United States v. Hutto, 524, ante, 1073, 41 Sup. Ct. Rep. 541.] et al., No. 691, just decided [256 U. S. In this case the demurrer was sustained U. S. Comp. Stat. § 4026, 3 Fed. Stat. upon the ground that § 2078, Rev. Stat., transactions involving property with reAnno. 2d ed. p. 760, was inapplicable to spect to which the government had no interest or control. For the reasons stated in the opinion in No. 691, the judgment herein is reversed, and the cause remanded for further proceedings in conformity with this opinion.

[blocks in formation]

Federal instrumentality.

1. The mere fact that property is used, among others, by the United States as an instrument for effecting its purpose, does This case is governed by the decision in not relieve such property from state taxaUnited States v. Hutto, ante, 1073.

[blocks in formation]

tion.

[For other cases, see Taxes, I. c, 2, a, in Digest Sup. Ct. 1908.]

Note. On liability of railroad right of way to assessment for local improvements-see note to Georgia R. & Bkg. Co. v. Decatur, 40 L.R.A. (N.S.) 935; Heman Constr. Co. v. Wabash R. Co. 12 L.R.A. (N.S.) 112, and Chicago, M. & St. P. R. Co. v. Milwaukee, 28 L.R.A. 249.

As to tax assessment for public improvement on highway-see note to Graham v. Detroit, 44 L.R.A.(N.S.) 836.

On necessity of special benefit to sustain assessment for local improvements

[blocks in formation]

due process of public improvements.

[blocks in formation]

1921.

3. A railroad right of way and station Argued April 21, 1921. grounds in Oklahoma are sufficiently identified in a proceeding for a special assessment for a street improvement to satisfy

due process of law, where the premises not

having been platted, the mayor and common council adopted a map of the city engineer on which the right of way and station grounds were set forth in proper quarterblock districts, and the premises assessed were those quarter blocks thereon designated as abutting on that portion of the street which was improved, and the designation was clear, although, some time after the passage of the ordinance providing for the assessment, this map was inadvertently removed from the city files, the railroad companies having full knowledge of the proceedings relating to the assessment, and of the commencement, progress, and completion of the improvement, and there being no suggestion that they were injured or misled by the temporary absence of the map from the city files.

[For other cases, see Constitutional Law, IV.

b, 6, c, in Digest Sup. Ct. 1908.] Public improvements -assessment relief against irregularity.

4. Mere insufficiency of description or other irregularity in a proceeding for a special assessment for a street improvement would not, in Oklahoma, entitle abutting

owners to have the assessment declared

void, but their rights, under Okla. Laws 1907-8, § 728, would be limited to having a reassessment made, conforming to the statutory regulations.

[For other cases, see Public Improvements, II. f, in Digest Sup. Ct. 1908.]

-see notes to Re Madera Irrig. Dist. Bonds, 14 L.R.A. 755, and Myles Salt Co. v. Iberia & St. M. Drainage Dist. L.R.A. 1918E, 190.

As to what constitutes due process of law, generally-see notes to People v. O'Brien, 2 L.R.A. 255; Kuntz v. Sumption, 2 L.R.A. 655; Re Gannon, 5 L.R.A. 359; Ulman v. Baltimore, 11 L.R.A. 224; Gilman v. Tucker, 13 L.R.A. 304; Pearson v. Yewdall, 24 L. ed. U. S. 436, and Wilson v. North Carolina, 42 L. ed. U. S. 865.

Decided June 1,

APPEAL from the United States Cir

the

cuit Court of Appeals for Eighth Circuit to review a decree which reversed, with directions to dismiss the bill, a decree of the District Court for the Eastern District of Oklahoma in favor of complainants in a suit to avoid a special assessment for a street improvement. Affirmed. C. C. A.-,

See same case below, 261 Fed. 342.

The facts are stated in the opinion.

Mr. C. O. Blake argued the cause, and, with Messrs. W. R. Bleakmore, R. A. Tolbert, Roy St. Lewis, Thomas P. Littlepage, and Sidney F. Taliaferro, filed a brief for appellants:

The state statute, as asserted and applied by the state, and as construed by the circuit court of appeals for the eighth circuit, is repugnant to art. 1, § 8, of the Constitution of the United States.

United States, 217 U. S. 180, 54 L. ed. Chicago, St. P. M. & O. R. Co. v. 721, 30 Sup. Ct. Rep. 470; Spokane & B. C. R. Co. v. Washington & G. N. R. Co. 219 U. S. 166, 55 L. ed. 159, 31 Sup. Ct. Rep. 182; Northern P. R. Co. v. Townsend, 190 U. S. 267, 47 L. ed. 1044, 23 Sup. Ct. Rep. 671; Choctaw, O. & G. R. Co. v. Harrison, 235 U. S. 292, 59 L. ed. 234, 35 Sup. Ct. Rep. 27; East Alabama R. Co. v. Doe, 114 U. S. 340, 29 L. ed. 136, 5 Sup. Ct. Rep. 869; Nadeau v. Union P. R. Co. 253 U. S. 442, 64 L. ed. 1002, 40 Sup. Ct. Rep. 570; Buncombe County v. Tommey, 115 U. S. 122, 29 L. ed. 305, 5 Sup. Ct. Rep. 626, 1186.

The proceedings to make and enforce the assessment were not such as to afford due process of law.

Upton v. People, 176 Ill. 632, 52 N. E. 358; People ex rel. Kochersperger v. Eg

gers, 164 Ill. 515, 45 N. E. 1074; Becker v. Baltimore & Ó. S. W. R. Co. 17 Ind. App. 324, 46 N. E. 685; Pennsylvania Co. v. Cole, 132 Fed. 668.

The state laws did not authorize the assessment.

Oklahoma City v. Shields, 22 Okla. 265, 100 Pac. 559.

Notice of publication has been held to be sufficient in many cases.

French v. Barber Asphalt Paving Co. 181 U. S. 324, 45 L. ed. 879, 21 Sup. Ct. Rep. 625; Hagar v. Reclamation Dist. 111 U. S. 701, 28 L. ed. 569, 4 Sup. Ct. Rep. 663; Lent v. Tillson, 140 U. S. 316, 35 L. ed. 419, 11 Sup. Ct. Rep. 825, 72 Mr. Jacob B. Furry argued the cause, Cal. 404, 14 Pac. 71; Paulsen v. Portand, with Messrs. George S. Ramsey, W. land, 149 U. S. 30-40, 37 L. ed. 637–641, H. Harris, J. W. Harbaugh, W. T. Ang-13 Sup. Ct. Rep. 750; Winona & St. P. lin, and Alfred Stevenson, filed a brief for appellees:

Complainants' property is not exempt from taxation or assessment by local authorities because complainants may, to some extent, be a Federal agency, and engaged in carrying out certain policies and purposes on behalf of the government.

Union P. R. Co. v. Peniston, 18 Wall. 5, 21 L. ed. 787; Thompson v. Union P. R. Co. 9 Wall. 579, 19 L. ed. 792; Western U. Teleg. Co. v. Moss, 125 U. S. 530, 31 L. ed. 790, 8 Sup. Ct. Rep. 961; Central P. R. Co. v. California, 162 U. S. 91, 40 L. ed. 903, 16 Sup. Ct. Rep. 766; Reagan v. Mercantile Trust Co. 154 U. S. 413-416, 38 L. ed. 1028-1030, 4 Inters. Com. Rep. 575, 14 Sup. Ct. Rep. 1060; Thomas v. Gay, 169 U. S. 264, 42 L. ed. 740, 18 Sup. Ct. Rep. 340; Utah & N. R. Co. v. Fisher, 116 U. S. 28, 29 L. ed. 542, 6 Sup. Ct. Rep. 246; Maricopa & P. R. Co. v. Arizona, 156 U. S. 347, 39 L. ed. 447, 15 Sup. Ct. Rep. 391.

A reassessment would be the proper method to correct an error in the descrip

tion.

Oklahoma R. Co. v. Severns Paving Co. Okla. 10 A.L.R. 157, 170 Pac. 216, 251 U. S. 104, 64 L. ed. 168, 40 Sup. Ct. Rep. 73.

If the notice required and provided for by the statute is such notice as would furnish due process of law, then the act is subject to no constitutional objection, and this court cannot pass on the validity of these proceedings regardless of whether or not the notice given was sufficient, or was in accordance with the requirements of the statute.

Land Co. v. Minnesota, 159 U. S. 526537, 40 L. ed. 247-251, 16 Sup. Ct. Rep. 83; Glidden v. Harrington, 189 U. S. 255, 47 L. ed. 798, 23 Sup. Ct. Rep. 574; Bellingham Bay & B. C. R. Co. v. New Whatcom, 172 U. S. 314-318, 43 L. ed. 460-462, 19 Sup. Ct. Rep. 205; Gilmore v. Hentig, 33 Kan. 156, 5 Pac. 781.

It is further held that personal notice to the property owner, either by name or otherwise, is not necessary to constitute due process of law in levying assessments for local improvements, the proceeding being in the nature of a proceeding in rem.

Kaw

Gilmore v. Hentig, supra; Ballard v. Hunter, 204 U. S. 241, 51 L. ed. 461, 27 Sup. Ct. Rep. 261; Huling v. Valley R. Co. 130 U. S. 559, 32 L. ed. 1945, 9 Sup. Ct. Rep. 603; Cleveland, C. C. & St. L. R. Co. v. Porter, 210 U. S. 177, 52 L. ed. 1012, 28 Sup. Ct. Rep. 647; Voris v. Pittsburg Plate Glass Co. 163 Ind. 599, 71 N. E. 249; Alley v. Muskogee, 53 Okla. 230, 156 Pac. 315.

It is further held that a statute which

gives a person against whom taxes are assessed a right to enjoin their collection, and have their validity judicially determined, provides due process of law.

McMillen v. Anderson, 95 U. S. 37, 24 L. ed. 335; Lent v. Tillson, 140 U. S. 316, 35 L. ed. 419, 11 Sup. Ct. Rep. 825; Security Trust & S. V. Co. v. Lexington, 203 U. S. 323, 51 L. ed. 204, 21 Sup. Ct. Rep. 87; Page & J. Taxn. by Assessment, $ 133.

This precise question was before the supreme court of Oklahoma in Alley v. Muskogee, supra.

The doctrine which obtains in some Davidson v. New Orleans, 96 U. S. 97, states, that it is against public policy 24 L. ed. 616; 4 Dill. Mun. Corp. 5th to permit the right of way of a railway ed. § 1365. company to be segregated and sold for Construction by the courts of the stat-local assessments, does not obtain in ute providing for the imposition of taxes, as giving to the taxpayers the right to appear before the assessing board and to be heard, was held to be conclusive by the Federal court.

Pittsburgh, C. C. & St. L. R. Co. v. Backus, 154 U. S. 421-426, 38 L. ed. 1031-1036, 14 Sup. Ct. Rep. 1114.

Oklahoma, and there is no public policy, as indicated by the constitutional provisions and legislative enactments in the state, denying the right of levying special assessments against the right of way of station grounds of railway companies.

Oklahoma City v. Shields, 22 Okla.

[blocks in formation]

Complainants' property is subject to assessment although their title is not in fee, but a mere easement for railway purposes.

Maricopa & P. R. Co. v. Arizona, 156 U. S. 347-352, 39 L. ed. 447-449, 15 Sup. Ct. Rep. 391; Chicago & N. W. R. Co. v. Elmhurst, 165 Ill. 148, 46 N. E. 437; Rich v. Chicago, 152 Ill. 18, 38 N. E. 255; Northern P. R. Co. v. Richland County, 28 N. D. 172, L.R.A.1915A, 129, 148 N. W. 545, Ann. Cas. 1916E, 574; Dill. Mun. Corp. § 1451; Louisville & N. R. Co. v. Barber Asphalt Paving Co. 197 U. S. 430, 49 L. ed. 819, 25 Sup. Ct. Rep. 466, affirming 116 Ky. 856, 76 S. W. 1097; Missouri, K. & T. R. Co. v. Tulsa, 45 Okla. 395, 145 Pac. 398; Heman Constr. Co. v. Wabash R. Co. 206 Mo. 172, 12 L.R.A. (N.S.) 112, 121 Am. St. Rep. 649, 104 S. W. 67, 12 Ann. Cas. 630; Northern P. R. Co. v. Seattle, 46 Wash. 674, 12 L.R.A. (N.S.) 121, 123 Am. St. Rep. 955, 91 Pac. 244.

Plaintiffs are estopped by their own laches.

Perry v. Davis, 18 Okla. 458, 90 Pac. 865; Kerker v. Bocher, 20 Okla. 729, 95 Pac. 981; Paulsen v. El Reno, 22 Okla. 734, 98 Pac. 958; Weaver v. Chickasha, 36 Okla. 226, 128 Pac. 305; Bartlesville v. Holm, 40 Okla. 472, 9 A.L.R. 627, 139 Pac. 273; Terry v. Hinton, 52 Okla. 170, 152 Pac. 851; Chickasha v. O'Brien, 58 Okla. 46, 159 Pac. 282; Norris v. Lawton, 47 Okla: 213, 148 Pac. 123; Shultz v. Ritterbusch, 38 Okla. 484, 134 Pac. 961; Jenkins v. Oklahoma City, 27 Okla. | 230, 111 Pac. 941; Lonsinger v. Ponca City, 27 Okla. 397, 112 Pac. 1006; Muskogee v. Rambo, 40 Okla. 672, 138 Pac. 567; Norman v. Allen, 47 Okla. 74, 147 Pac. 1002; Sharum v. Muskogee, 43 Okla. 32, 141 Pac. 22; Ardmore v. Appollos, 62 Okla. 232, 162 Pac. 211; Coalgate v. Gentilini, 51 Okla. 552, 152 Pac. 95; Wey v. Hobart, Okla. 168 Pac. 433; Penn Mut. L. Ins. Co. v. Austin, 168 U. S. 685, 42 L. ed. 626, 18 Sup. Ct. Rep. 223; Thatcher v. Polk County, 235 Fed. 728; New York v. Pine, 185 U. S. 100, 46 L. ed. 823, 22 Sup. Ct. Rep. 592; Ward v. Sherman, 192 U. S. 176, 48 L. ed. 395, 24 Sup. Ct. Rep. 227.

Mr. Justice Brandeis delivered the opinion of the court:

This suit was brought in the United

States district court for the eastern district of Oklahoma by the Chicago, Rock Island, & Pacific Railway Company, to have declared void a special assessment for street improvement, made against part of its right of way and station grounds in the city of Holdenville, Oklahoma, and to enjoin the taking of any proceedings to enforce the same. The Choctaw, Oklahoma, & Gulf Railroad Company, the lessor, was joined as plaintiff. The defendants are the county treasurer, the city, and holders of bonds issued to pay for the improvement. The street improved, called Oklahoma avenue, runs parallel to the main tracks. The station grounds abut on the avenue for a distance of 1,641 feet, and the parcel assessed extends back from the avenue 150 feet to the center of the right of way. Over this street a large part of the traffic to and from the station necessarily passes. For between it and the main [535] tracks lie the passenger depot, the freight houses, the express office, the cotton platform, an oil warehouse, grain elevators, coal bins, and the team tracks. The assessment is assailed as invalid on several grounds. The chief contention is that the property is immune from assessment by the state, because that part of the railroad was an instrumentality of the Federal government. The other grounds of attack are that, in laying the assessment, the property was not sufficiently identified, and that the assessment of a railroad right of way and station grounds is not authorized by the law of the state. The district court entered a decree for plaintiffs, which was reversed by the circuit court of appeals, with directions to dismiss the bill. C. C. A., 261 Fed. 342. The case comes here under § 241 of the Judicial Code.

First. The claim of immunity from assessment rests upon these facts: The right of way and station grounds are on Land which had belonged to the Creek Nation before the town (now city) was established under direction of the Secretary of the Interior, pursuant to the original Creek Agreement. Act of March 1, 1901, chap. 676, ¶ 10, 31 Stat. at L. 861, 864. The Rock Island acquired its interest on March 24, 1904, under a lease from the Choctaw, Oklahoma, & Gulf, for a period of 999 years, of all of its railroad property. The lessor company had, in locating its railroad through Holdenville, taken, besides the right of way 100 feet wide, an additional strip for station purposes 200 feet wide,

with a length of 3,000 feet; havin | railroad system.2 Holdenville is on the acquired the power so to do by succeed ing to the powers and franchises of the Choctaw Coal & Railway Company. To that company Congress had, in 1888, granted the right to build a railroad in Indian Territory, with a branch line to coal mines leased from the Choctaw Na tion.1

[536] The contention is that the railroad is an instrumentality through which the government undertook to perform its obligation to develop coal lands belonging to the Indians; and that, if the railroad's interest in the right of way and station grounds could be subjected to a special assessment and possible sale thereunder, apart from the railroad franchises, the congressional purpose might be obstructed. Choctaw, O. & G. R. Co. v. Harrison, 235 U. S. 292, 59 L. ed. | 234, 35 Sup. Ct. Rep. 27; see also Northern P. R. Co. v. Townsend, 190 U. S. 267, 47 L. ed. 1044, 23 Sup. Ct. Rep. 671; Indian Territory Illuminating Oil Co. v. Oklahoma, 240 U. S. 522, 60 L. ed. 779, 36 Sup. Ct. Rep. 453.

The mere fact that property is used, among others, by the United States as an instrument for effecting its purpose does not relieve it from state taxation. The most that can be said here is that, among the public served by this railroad, are some mines on land leased from the Choctaw Nation. The right of way and station grounds in question, instead of being, as was perhaps originally contemplated by the Act of February 18, 1888, part of a branch to leased "coal veins," have become an integral [537] part of through lines of a great

1 Acts of Congress, Feb. 18, 1888, chap. 13, 25 Stat. at L. 35, § 2, provides:

"That said corporation is authorized to take and use for all purposes of railway, and for no other purpose, a right of way one hundred feet in width through said Indian Territory for said main line and branch of the Choctaw Coal & Railway Company; and to take and use a strip of land two hundred feet in width, with a length of three thousand feet, in addition to right of way, for stations, for every ten

miles of road.

"Provided further, That no part of the lands herein authorized to be taken shall be leased or sold by the company and they shall not be used except in such manner and for such purposes only as shall be nee essary for the construction and convenient operation of said railroad, telegraph and telephone lines; and when any portion thereof shall cease to be so used, such por-| tion shall revert to the nation or tribe of Indians from which the same shall be taken."

a

main line of the Choctaw, Oklahoma, & Gulf, which extends from the west bank of the Mississippi river through Arkansas and Oklahoma to the Texas state line, a distance of nearly 650 miles. By the lease to the Rock Island, this railroad has become part of the through lines of a much larger system. And even though it be granted that the Federal government utilized the railroad as an instrument in working out its policy toward the Indians, the tax upon the railroad property would be none the less valid. Union P. R. Co. v. Peniston, 18 Wall. 5, 36, 21 L. ed. 787, 793; Western U. Teleg. Co. v. Atty. Gen. 125 U. S. 530, 546–548; 31 L. ed. 790, 792, 793, 8 Sup. Ct. Rep. 961; Central P. R. Co. v. California, 162 U. S. 91, 125, 40 L. ed. 903, 914, 16 Sup. Ct. Rep. 766; Thomas v. Gay, 169 U. S. 264, 42 L. ed. 740, 18 Sup. Ct. Rep. 340.

Second. Equally unfounded is the contention that the assessment did not sufficiently identify the property, and was hence a denial of due process of law. The Oklahoma statute under which the assessment was made (Comp. Laws, 1909, § 724) provides that:

"If any portion of the property abutting upon such improvement shall not be platted into lots and blocks, the mayor and council shall include such property in proper quarter-block districts for the purpose of appraisement and assessment as herein provided."

The railroad premises not having been platted, the mayor and council adopted a map of the city engineer, on which the right of way and station grounds were

See also Acts of Feb. 13, 1889, chap. 152, 25 Stat. at L. 668; Oct. 1, 1890, chap. 1252, 26 Stat. at L. 640; Feb. 21, 1891, chap. 249, 26 Stat. at L. 765; Jan. 22, 1894, chap. 14, 28 Stat. at L. 27; Aug. 24, 1894, chap. 330, 28 Stat. at L. 502; April 24, 1896, chap. 122, 29 Stat. at L. 98; March 28, 1900, chap. 111, 31 Stat. at L. 52.

2 When Congress authorized the purchasers of the property and franchises of the insolvent Choctaw Coal & Railway Company to reorganize as the Choctaw, Oklahoma, & Gulf, it conferred upon the latter "perpetual succession." Act of August 24, 1894, chap. 330, § 5, 28 Stat. at L. 502, 503. Later it greatly enlarged its powers, conferring authority without_limit, to construct its railroad over any Indian reservation, and to acquire and consolidate with practically any connecting line. Acts of April 24, 1896, chap. 122, 29 Stat. at L. 98; March 28, 1900, chap. 111, 31 Stat. at

L. 52.

« ForrigeFortsett »