Mr. Justice McReynolds delivered the opinion of the court:

The court of appeals, District of Columbia, has certified the following question (Judicial Code, § 251):

"Is the sprinkling of the streets to keep down dust for the purpose of the comfort and health of the general public, a public or governmental act, as contradistinguished from a private or municipal act, which exempts the District of Columbia from liability for the injuries caused by one of its employees engaged therein?"

[652] In order to prepare the streets of Washington for sweeping, it was the practice to sprinkle them from portable tanks. While filling one of these tanks through a hose connected to a water plug, a corporate employee negligently dropped the plug cover and injured Adelbert Harris, a young child. He brought suit against the District of Columbia for damages.

It is established doctrine that, when acting in good faith, municipal corporations are not liable for the manner in which they exercise discretionary powers of a public or legislative character. A different rule generally prevails as to their private or corporate powers. Dill. Mun. Corp. 5th ed. §§ 1626 et seq., and cases cited.

the corporation was held liable for injuries resulting from an insecure bridge placed by the charter under its exclusive control and management. Among other things, through [653] Mr. Justice Clifford, this was said: "Municipal corporations undoubtedly are invested with certain powers, which, from their nature, are discretionary, such as the power to adopt regulations or by-laws for the management of their own affairs, or for the preservation of the public health, or to pass ordinances prescribing and regulating the duties of policemen and firemen, and for many other useful and important objects within the scope of their charters. Such powers are generally regarded as discretionary, because, in their nature, they are legislative; and although it is the duty of such corporations to carry out the powers so granted and make them beneficial, still it has never been held that an action on the case would lie against the corporation, at the suit of an individual, for the failure on their part to perform such a duty.

Whether the action in this case is maintainable against the defendants or not depends upon the terms and conditions of their charter, as is obvious from the views already advanced."

Barnes v. District of Columbia (1875) 91 U. S. 540, 551, 23 L. ed. 440, 443, presented a case of injury arising from a defective street. The District was held liable, and, for the court, Mr. Justice Hunt said, concerning the point presently important:

Application of these general principles to the facts of particular cases has occasioned much difficulty. The circumstances being stated, it is not always easy to determine what power a municipal corporation is exercising. But, nothing else "Some cases hold that the adoption of appearing, we are of opinion that, when a plan of such a work is a judicial act; sweeping the streets, a municipality is and, if injury arises from the mere exexercising its discretionary powers to ecution of that plan, no liability exists. protect public health and comfort, and Child v. Boston, 4 Allen, 41, 81 Am. Dec. is not performing a special corporate or 680; Thayer v. Boston, 19 Pick. 511, 31 municipal duty to keep them in repair. Am. Dec. 157. Other cases hold that for This conclusion, we think, accords with its negligent execution of a plan good in common observation, harmonizes with itself, or for mere negligence in the care what has been declared heretofore con- of its streets or other works, a municcerning liability of the District of Co-ipal corporation cannot be charged. Delumbia for torts, and is supported by well-considered cases. Weightman v. Washington (1861) 1 Black, 39, 17 L. ed. 52; Barnes v. District of Columbia (1875) 91 U. S. 540, 551, 23 L. ed. 440, 443; District of Columbia v. Woodbury (1890) 136 U. S. 450, 34 L. ed. 472, 10 Sup. Ct. Rep. 990; Love v. Atlanta, 95 Ga. 129, 51 Âm. St. Rep. 64, 22 S. E. 29; Conelly v. Nashville, 100 Tenn. 262, 46 S. W. 565; Haley v. Boston, 191 Mass. 291, 5 L.R.A. (N.S.) 1005, 77 N. E. 888; Bruhnke v La Crosse, 155 Wis. 485, 50 L.R.A. (N.S.) 1147, 144 N. W. 1100. In Weightman v. Washington, supra,

troit v. Blackeby, 21 Mich. 84, 4 Am. Rep. 450, is of the latter class, where it was held that the city was not liable for an injury arising from its neglect to keep its sidewalks in repair.

"The authorities establishing the contrary doctrine, that a city is responsible for its mere negligence, are so [654] numerous and so well considered that the law must be deemed to be settled in accordance with them." (Citing many cases.)

In District of Columbia v. Woodbury (1890) 136 U. S. 450, 34 L. ed. 472, 10 Sup. Ct. Rep. 990, Woodbury claimed

damages for injuries resulting from a, sidewalk, negligently permitted to remain out of repair. Held, that the principle of Barnes v. District of Columbia applies, notwithstanding the form of the District government had been changed. In Roth v. District of Columbia, 16 App. D. C. 323; Brown v. District of Columbia, 25 L.R.A. (N.S.) 98, 29 App. D. C. 273; District of Columbia v. Tyrrell, 41 App. D. C. 463; and Coates v. District of Columbia, 42 App. D. C. 194, freedom of the District of Columbia from liability on account of matters within its governmental powers is recognized.

Workman v. New York, 179 U. S. 552, 45 L. ed. 314, 21 Sup. Ct. Rep. 212, is not applicable. The proceeding being in admiralty, rights and liabilities of the parties depended upon the maritime code, and not upon local laws of New York. Here, common-law principles apply. See Southern P. Co. v. Jensen, 244 U. S. 205, 61 L. ed. 1086, L.R.A.1918C, 451, 37 Sup. Ct. Rep. 524, Ann. Cas. 1917E, 900, 14 N. C. C. A. 596.

The certified question must be answered in the affirmative.

[blocks in formation]

APPEAL from the Court of Claims to review a judgment dismissing the petition in a suit to recover charges for railway transportation services.



See same case below, 53 Ct. Cl. 107. The facts are stated in the opinion. Mr. Benjamin Carter argued the cause on both original and rearguments, and, with Mr. Frank Carter Pope, filed a brief for appellant:

Section 3477 of the United States Revised Statutes (Comp. Stat. § 6383, 2 Fed. Stat. Anno. 2d ed. p. 179) is merely for the protection of the government. It seeks to prevent the acquiring by strangers of speculative interests in claims, such as may naturally inspire efforts for their collection, and the imperiling of the government's rights through the need of dealing with several persons instead of one.

Spofford v. Kirk, 97 U. S. 484, 24 L. ed. 1032; Goodman v. Niblack, 102 Mr. Justice Holmes, Mr. Justice U. S. 556, 26 L. ed. 229; Bailey v. United Brandeis, and Mr. Justice Clarke dis- States, 109 U. S. 432, 27 L. ed. 988, 3


[merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small]

Sup. Ct. Rep. 272; Price v. Forrest, 173 U. S. 410, 43 L. ed. 749, 19 Sup. Ct. Rep. 434.

Section 3477 does not apply to any transaction or fortuity by which the existence, natural or legal, of one person or legal entity, is terminated and another succeeds to its rights, nor to any transfer of a claim by operation of law. Inheritance of a decedent's estate, an assignment for the benefit of creditors, or other insolvency proceedings, bankruptcy, whether involuntary or voluntary, a receivership or a bequest in a will, are as effectual to transfer a claim against the United States as any other


[blocks in formation]

United States, 112 U. S. 733, 736, 28
L. ed. 861, 862, 5 Sup. Ct. Rep. 366;
Spofford v. Kirk, 97 U. S. 484, 488, 24
L. ed. 1032, 1034.

Mr. Justice McReynolds delivered the opinion of the court:

Appellant sued in the court of claims to recover balances for transportation services originally payable to the Florida Central & Peninsular Railroad Company, to whose rights it had succeeded through merger or consolidation. Holding that because of § 3477, Rev. Stat., Comp. Stat. § 6383, 2 Fed. Stat. Anno. 2d ed. p. 179 (July 29, 1846, 9 Stat. at L. 41, chap. 66, and February 26, 1853, 10 Stat. at L. 170, chap. 81), appellant

could not maintain the action, that court dismissed its petition.


[656] Section 3477. "All transfers and assignments made of any claim upon the United States, or of any part or share thereof, or interest therein, whether absolute or ditional, and whatever may be the consideration therefor, and all powers of attorney, orders, or other authorities for receiving payment of such claim, or of any part or share thereof, shall be absolutely null and void, unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof."


The Seaboard Air Line Railway was originally chartered under the laws of Virginia; by authorized union with others, it became a consolidated corporation under the laws of Virginia, North Carolina, South Carolina, Georgia, and Alabama; and in 1903, under "articles of agreement of merger and consolidation," and the statutes of Georgia and Florida (8 2173, Code of Ga. 1895; § 2812, Gen. Stat. of Fla.), the Florida Central & Peninsular Railroad, a Florida corporation, was united with it. As agreed and provided by the laws of the two states, the rights, privileges, franchises, and all property, real, personal, and mixed, and all debts on every account, as well as stock subscriptions and other things in action belonging to each of the constituents, were transferred to and vested in the consolidated corporation without further act or deed, "as effectually as they were in the former companies."

Section 3477 has been before this court many times for construction and application. United States v. Gillis, 95 U. S. 407, 24 L. ed. 503; Erwin v. United

States, 97 U. S. 392, 24 L. ed. 1065;
Spofford v. Kirk, 97 U. S. 484, 24
L. ed. 1032; Goodman v. Niblack, 102 U.
S. 556, 26 L. ed. 229; St. Paul & D. R.
Co. v. United States, 112 U. S. 733, 28
L. ed. 861, 5 Sup. Ct. Rep. 366; Bailey v.
United States, 109 U. S. 432, 27 L. ed.
988, 3 Sup. Ct. Rep. 272; Butler v. Gore-
ley, 146 U. S. 303, 36 L. ed. 981, 13 Sup.
Ct. Rep. 84; Hager v. Swayne, 149 U. S.
242, 37 L. ed. 719, 13 Sup. Ct. Rep. 841;
Ball v. Halsell, 161 U. S. 72, 40 L. ed.
622, 16 Sup. Ct. Rep. 554; Price v. For-
rest, 173 U. S. 410, 43 L. ed. 749, 19
Sup. Ct. Rep. 434.

Goodman v. Niblack, and Price v. For-
[657] In Erwin v. United States,
rest, certain exceptions to the general
language of the section were recognized
because not within the evil at which the
statute aimed. It was intended to pre-
vent frauds upon the Treasury, and the
mischiefs designed to be remedied "are
mainly two: First, the danger that the
rights of the government might be em-
barrassed by having to deal with several
persons instead of one, and by the intro-
duction of a party who was a stranger
to the original transaction.
that by a transfer of such a claim
against the government to one or more
persons not originally interested in it,
the way might be conveniently opened
to such improper influences in prosecut-
ing the claim before the departments,
the courts, or the Congress, as desperate
cases, when the reward is contingent on
success, so often suggest."

We cannot believe that Congress in-
tended to discourage, hinder, or obstruct
the orderly merger or consolidation of
corporations as the various states might
authorize for the public interest. There
is no probability that the United States
could suffer injury in respect of out-
standing claims from such union of in-
terests, and certainly the result would
not be more deleterious than would fol-
low their passing to heirs, devisees,
assignees in bankruptcy, or receivers, all
of which changes of ownership have
been declared without the ambit of the
statute. The same principle which re-
quired the exceptions heretofore ap-
proved applies here.

The judgment of the court below is reversed and the cause remanded, with direction to afford reasonable opportunity to both sides for taking any additional proof rendered necessary by the withdrawal by the United States of a stipulation upon which reliance had been placed; and for further proceedings in conformity with this opinion.

[ocr errors]
[merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][ocr errors]

due process law · equal protection of the laws public improvements.


[merged small][merged small][merged small][merged small][ocr errors][merged small][merged small]

3. A state statute which sanctions assessing a railway company for benefits from a highway improvement upon a theory which, disregarding area and distance from the highway, assumes that 9.7 miles of railway in a purely farming section, treated as an aliquot part of the railway system, will receive benefits amounting to $67,900 from the construction of 11.2 miles of gravel road, while farm lands and town lots are assessed according to area and position, and wholly without regard to their value, the improvements thereon, or their present or prospective use, is invalid as producing a discrimination against the railway comso palpable and arbitrary as amount to a denial of the equal protection of the laws.


[For other cases, see Constitutional Law, 292

2. A state legislature may create taxing districts to meet the expense of local improvements, and may fix the basis of tax-pany ation without violating U. S. Const. 14th Amend., unless its action is palpably arbitrary or plain abuse; but if, however, the statute providing for the tax is of such a character that there is no reasonable presumption that substantial justice generally will be done, but the probability is that the parties will be taxed disproportionately

Note. 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.

336, in Digest Sup. Ct. 1908.]

[No. 205.]

Argued March 16 and 17, 1921. Decided
June 6, 1921.

N ERROR to the Supreme Court of

the State of Arkansas to review a

judgment which affirmed a judgment of the Circuit Court of Little River County, in that state, upholding certain local improvement assessments against a railway company. Reversed and remanded for further proceedings.

See same case below, 139 Ark. 424,

The facts are stated in the opinion.

As to constitutional equality of privileges, immunities, and protection, gen-215 S. W. 656, 217 S. W. 773. erally-see note to Louisville Safety Vault & T. Co. v. Louisville & N. R. Co. 14 L.R.A. 579.

Messrs. Samuel W. Moore and James B. McDonough argued the cause, and, with Messrs. Frank H. Moore and A. F. Smith, filed a brief for plaintiffs in er

As to who may raise objection that taxation statute contains an unconstitutional discrimination-see note to Pull-ror: man Co. v. Knott, 59 L. ed. U. S. 105. Upon the undisputed evidence, the As to tax or assessment for public improvement on highway-see note to Graham v. Detroit, 44 L.R.A. (N.S.) 836. On liability of railroad right of way to assessment for local improvementsee notes to Chicago, M. & St. P. R. Co. v. Milwaukee, 28 L.R.A. 249; Heman Constr. Co. v. Wabash R. Co. 12 L.R.A. (N.S.) 112, and Georgia R. & Bkg. Co. v. Decatur, 40 L.R.A. (N.S.) 935.

On necessity of special benefit to sustain assessment for local improvements -see note 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.

assessment of $67,900 against the property of the plaintiffs in error is palpably arbitrary, unjust, unreasonable, and void, and denies to the plaintiffs in error the equal protection of the laws, and deprives them of their property without due process of law, contrary to § 1 of the 14th Amendment to the Constitution of the United States.


Gast Realty & Invest. Co. v. Schneider Granite Co. 240 U. S. 55, 60 L. ed. 523, 36 Sup. Ct. Rep. 254; Hancock Muskogee, 250 U. S. 454, 63 L. ed. 1081, 39 Sup. Ct. Rep. 528; Myles Salt Co. v. Iberia & St. M. Drainage Dist. 239 U. S. 478, 60 L. ed. 392, L.R.A.1918E, 190,

36 Sup. Ct. Rep. 204; St. Louis South-linois C. R. Co. 263 Ill. 589, 105 western R. Co. v. Road Improv. Dist. N. E. 731. Comrs. C. C. A. 265 Fed. 524; Citizens' Sav. L. Asso. v. Topeka, 20 Wall. 655, 22 L. ed. 455; Union Tank Line Co. v. Wright, 249 U. S. 275, 63 L. ed. 602, 39 Sup. Ct. Rep. 276.

In the earlier cases it was held, as a matter of law, that the right of way of a railroad was incapable of being benefited by local improvements.

Assessments for local improvements in Arkansas can be sustained only when the The benefits equal the assessments. benefits represent the enhancement in value in the property, produced by the construction of the improvement.

Rector v. Board of Improvement, 50 Ark. 116, 6 S. W. 519; Kirst v. Street Improv. Dist. 86 Ark. 1, 109 S. W. 526; Erie v. A. Piece of Land, 175 Pa. 523, Board of Improvement v. Pollard, 98 34 Atl. 808; Philadelphia v. Philadel- Ark. 543, 136 S. W. 957; Kansas City, phia, W. & B. R. Co. 33 Pa. 41; Junction P. & G. R. Co. v. Waterworks Improv. R. Co. v. Philadelphia, 88 Pa. 424; Al- Dist. 68 Ark. 376, 59 S. W. 248; Ft. legheny City v. Western Pennsylvania Smith Light & Traction Co. v. McR. Co. 138 Pa. 375, 21 Atl. 763; Bridge- Donough, 119 Ark. 254, 177 S. W. 926; port v. New York & N. H. R. Co. 36 Swepston v. Avery, 118 Ark. 303, 177 Conn. 255, 4 Am. Rep. 63; Boston v. S. W. 424; St. Louis Southwestern R. Boston & A. R. Co. 170 Mass. 95, 49 Co. v. Red River Levee Dist. 81 Ark. N. E. 95; Naugatuck R. Co. v. Water- 562, 99 S. W. 843; Coffman v. St. bury, 78 Conn. 193, 61 Atl. 474; Erie R. Francis Drainage Dist. 83 Ark. 54, 103 Co. v. Paterson, 72 N. J. L. 83, 59 Atl. S. W. 179; Moore v. Long Prairie Levee 1031; Detroit G. H. & M. O. R. Co. v. Dist. 98 Ark. 113, 135 S. W. 819; Ahern Grand Rapids, 106 Mich. 13, 28 L.R.A. v. Board of Improv. Dist. 69 Ark. 68, 61 793, 58 Am. St. Rep. 466, 63 N. W. S. W. 575; Improvement Dist. v. St. 1007; Lehigh Valley R. Co. v. Jersey Louis Southwestern R. Co. 99 Ark. 508, City, 81 N. J. L. 290, 80 Atl. 228; Chi-139 S. W. 308; Peay v. Little Rock, 32 cago, M. & St. P. R. Co. v. Milwaukee, 89 Wis. 506, 28 L.R.A. 249, 62 N. W. 417. See also Louisville & N. R. Co. v. Barber Asphalt Paving Co. 197 U. S, 430, 49 L. ed. 819, 25 Sup. Ct. Rep. 466; 25 R. C. L. 144; Bauman v. Ross, 167 U. S. 548, 42 L. ed. 270, 17 Sup. Ct. Rep. 966; State, Mangles, Prosecutor, v. Kirst v. Street Improv. Dist. 86 Ark. Hudson County, 55 N. J. L. 88, 17 L.R.A. 1, 109 S. W. 526; Union Tank Line Co. 785, 25 Atl. 322; Tobie v. Brown County, v. Wright, supra; Myles Salt Co. v. 20 Kan. 14; Minnesota Rate Cases Iberia & St. M. Drainage Dist. 239 U. S. (Simpson v. Shepard) 230 U. S. 352, 57 478, 60 L. ed. 392, L.R.A.1918E, 190, L. ed. 1511, 48 L.R.A. (N.S.) 1151, 3336 Sup. Ct. Rep. 204; Gast Realty & InSup. Ct. Rep. 729, Ann. Cas. 1916A, 18: vest. Co. v. Schneider Granite Co. 240 New York, N. H. & H. R. Co. v. Port. S. 55, 60 L. ed. 523, 36 Sup. Ct. Rep. Chester, 149 App. Div. 893, 134 N. Y. Supp. 883; Cache River Drainage Dist. v. Chicago & E. I. R. Co. 255 ill. 398, 99 N. E. 635; Kankakee v. Illinois C. R. Co. 263 Ill. 589, 105 N. E. 731; Union Tank Line Co. v. Wright, 249 U. S. 275, 63 L. ed. 602, 39 Sup. Ct. Rep. 276.

The conjectural and possible increases in transporting farm products resulting from the possible and probable clearing up and cultivating of unimproved lands, as a matter of law does not constitute benefits within the meaning of the Arkansas act under discussion.

Cribbs v. Benedict, 64 Ark. 555, 44 S. W. 707; New York, N. H. & H. R. Co. v. Port Chester, 149 App. Div. 893, 134 N. Y. Supp. 883; Cache River Drainage Dist. v. Chicago & E. I. R. Co. 255 Ill. 398, 99 N. E. 635; Kankakee v. Il

Ark. 31; James v. Pine Bluff, 49 Árk. 202, 4 S. W. 760; Craig v. Russellville Waterworks Improv. Dist. 84 Ark. 390, 105 S. W. 867; Road Improv. Dist. v. Glover, 86 Ark. 231, 110 S. W. 1031.

The plan of assessment was arbitrary, unjust, and confiscatory.


The said assessments, arbitrary, unjust, and unreasonable as they are, con

stitute an unlawful burden on interstate commerce.

Union Tank Line Co. v. Wright, supra. Petitioners' property is a right of way, and therefore a mere easement.

Gurdon & Ft. S. R. Co. v. Vaught, 97 Ark. 234, 133 S. W. 1019; Brown v. Young, 69 Iowa, 625, 29 N. W. 941; Lidgerding v. Zignego, 77 Minn. 421, 77 Am. St. Rep. 677, 80 N. W. 360; 6 Am. & Eng. Enc. Law, 531; Clayton v. Chicago, I. & D. R. Co. 67 Iowa, 238, 25 N. W. 150; Hoffman's Appeal, 118 Pa. 512, 12 Atl. 57.

The action of the assessors, in including the improvements on petitioners' property, and including the personal property, and taking into consideration

256 U. S.

« ForrigeFortsett »