Mr. Justice McReynolds delivered the, the corporation was held liable for inopinion of the court:

juries resulting from an insecure bridge The court of appeals, District of Co-placed by the charter under its exclulumbia, has certified the following ques- sive control and management. Among tion (Judicial Code, § 251):

other things, through [653] Mr. Justice "Is the sprinkling of the streets to Clifford, this was said: "Municipal corkeep down dust for the purpose of the porations undoubtedly are invested with comfort and health of the general pub- certain powers, which, from their nalic, a public or governmental act, as ture, are discretionary, such as the powcontradistinguished from a private or er to adopt regulations or by-laws for municipal act, which exempts the Dis- the management of their own affairs, or trict of Columbia from liability for the for the preservation of the public health, injuries caused by one of its employees or to pass ordinances prescribing and engaged therein ?'

regulating the duties of policemen and 16521 In order to prepare the streets firemen, and for many other useful and of Washington for sweeping, it was the important objects within the scope of practice to sprinkle them from portable their charters. Such powers are genertanks. While filling one of these tanks ally regarded as discretionary, because, through a hose connected to a water in their nature, they are legislative; and plug, a corporate employee negligently although it is the duty of such corporadropped the plug cover and injured tions to carry out the powers so granted Adelbert Harris, a young child. He and make them beneficial, still it has brought suit against the District of Co- never been held that an action on the lumbia for damages.

case would lie against the corporation, It is established doctrine that, when at the suit of an individual, for the failacting in good faith, municipal corpora- ure on their part to perform such a tions are not liable for the manner in duty. ... Whether the action in this which they exercise discretionary pow-case is maintainable against the defenders of a public or legislative character. ants or not depends upon the terins and A different rule generally prevails as to conditions of their charter, as is obvious their private or corporate powers. Dill. from the views already advanced.” Mun. Corp. 5th ed. SS 1626 et seq., and Barnes v. District of Columbia (1875) cases cited.

91 U. S. 540, 551, 23 L. ed. 440, 443, preApplication of these general princi- sented a case of injury arising from a ples to the facts of particular cases has defective street. The District was held occasioned much difficulty. The circum- liable, and, for the court, Mr. Justice stances being stated, it is not always easy Hunt said, concerning the point presentto determine what power a municipal cor- ly important: poration 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 Piek. 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 troit v. Blackeby, 21 Mich. 84, 4 Am. well-considered cases. Weightman v. Rep. 450, is of the latter class, where it Washington (1861) 1 Black, 39, 17 was held that the city was not liable for L. ed. 52; Barnes v. District of Colum- an injury arising from its neglect to bia (1875) 91 U. S. 510, 551, 23 L. ed. keep its sidewalks in repair. 440, 443; District of Columbia v. Wood- "The authorities establishing the conbury (1890) 136 U. S. 450, 34 L. ed. 472, trary doctrine, that a city is responsible 10 Sup. Ct. Rep. 990; Love v. Atlanta, for its mere negligence, are so [654] 95 Ga. 129, 51 Am. St. Rep. 64, 22 S. E. numerous and so well considered that 29; Conelly v. Nashville, 100 Tenn. 262. the law must be deemed to be settled in 46 S. W. 565; Haley v. Boston, 191 accordance with them.” (Citing many Mass. 291, 5 L.R.A.(N.S.) 1005, 77 N. E. cases.) 888; Bruhnke v La Crosse, 155 Wis. 485, In District of Columbia v. Woodb ry 50 L.R.A.(N.S.) 1147, 144 N. W. 1100. (1890) 136 U. S. 450, 34 L. ed. 472, 10 In Weightman v. Washington, supra, Sup. Ct. Rep. 990, Woodbury claimed damages for injuries resulting from a, Argued March 16, 1920. Restored to docket sidewalk, negligently permitted to re

for reargument November 15, 1920. Re. main out of repair. Held, that the prin

argued April 12, 1921. Decided June 6, ciple of Barnes v. District of Columbia

1921. applies, notwithstanding the form of the District government had been changed. APPEAL from the Court of Claims to In Roth v. District of Columbia, 16

review a judgment dismissing the App. D. C. 323; Brown v. District of Co- petition in a suit to recover charges for

Relumbia, 25 L.R.A.(N.S.) 98, 29 App. D. railway transportation services. C. 273; District of Columbia v. Tyrrell,

versed. 41 App. D. C. 463; and Coates v. District

See same case below, 53 Ct. Cl. 107. of Columbia, 42 App. D. C. 194, freedom

The facts are stated in the opinion. of the District of Columbia from liabil- Mr. Benjamin Carter argued the cause ity on account of matters within its gov- on both original and rearguments, and, ernmental powers is recognized.

with Mr. Frank Carter Pope, filed a Workman v. New York, 179 U. S. 552, brief for appellant: 45 L. ed. 314, 21 Sup. Ct. Rep. 212, is Section 3477 of the United States not applicable. The proceeding being in Revised Statutes (Comp. Stat. § 6383, 2 admiralty, rights and liabilities of the Fed. Stat. Anno. 2d ed. p. 179) is mereparties depended upon the maritime ly for the protection of the government. code, and not upon local laws of New It seeks to prevent the acquiring by York. Here, common-law principles ap- strangers of speculative interests in ply. See Southern P. Co. v. Jensen, 244 claims, such as may naturally inspire efU. S. 205, 61 L. ed. 1086, L.R.A.1918C, forts for their collection, and the im451, 37 Sup. Ct. Rep. 524, Ann. Cas. periling of the government's rights 1917E, 900, 14 N. C. C. A. 596.

through the need of dealing with severThe certified question must be an- al persons instead of one. swered in the affirmative.

pofford v. Kirk, 97 U. S. 484, 24

L. ed. 1032; Goodman v. Niblack, 102 Mr. Justice Holmes, Mr. Justice Brandeis, and Mr. Justice Clarke dis- States, 109 U. S. 432, 27 L. ed. 988, 3

U. S. 556, 26 L. ed. 229; Bailey v. United sent.

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 [655) SEABOARD AIR LINE RAILWAY, Appt.,

transaction or fortuity by which the ex

istence, natural or legal, of one person UNITED STATES.

or legal entity, is terminated and an

other succeeds to its rights, nor to any (See S. C. Reporter's ed. 655–657.) transfer of a claim by operation of law.

Inheritance of a decedent's estate, an Claims against United States - as- assignment for the benefit of creditors, signment.

or other insolvency proceedings, bankThe prohibition of U.' S. Rev. Stat. § 3477, against the transfer or assignment tary, a receivership or a bequest in a

ruptcy, whether involuntary or volunof claims against the United States, does not preclude a recovery by a railway com- will, are as effectual to transfer a claim pany against the United States for charges against the United States as any other for transportation services originally pay.

claim. able to another railway company to whose Erwin v. United States, 97 U. S. 392, rights the former company has succeeded 24 L. ed. 1065; Butler v. Goreley, 146 through merger or consolidation sanctioned U. S. 303, 36 L. ed. 981, 13 Sup. Ct. by state laws.

Rep. 84; Goodman v. Niblack, 102 U. S. [For other cases, see Claims, I. c, 10 Digest 556, 26 L. ed. 229; Price v. Forrest, Sup. Ct. 1908.)

supra. [No. 62.)

Assistant Attorney General Davis arNote.-On validity of assignment of gued the cause on both original and reclaims against United States-see note arguments, and, with Special Assistant to Lopez v. United States, 2 L.R.A. 571. to the Attorney General Wentworth,

On effect of consolidation of corpora- filed a brief for appellee: tions, generally-see notes to Louisville, The claim sued upon is void under U. N. A. & C. R. Co. v. Boney, 3 L.R.A. S. Rev. Stat. § 3477; National Bank v. 435; Shields v. Ohio, 24 L. ed. U. S. Downie, 218 U. S. 345, 353, 54 L. ed. 357, and Cantillon v. Dubuque & N. W. 1065, 1068, 31 Sup. Ct. Rep. 89, 20 Ann. R. Co. 5 L.R.A. 726.

Cas. 1116; St. Paul & D. R. Co. v.

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United States, 112 U. S. 733, 736, 28 States, 97 U. S. 392, 24 L. ed. 1065; L. ed. 861, 862, 5 Sup. Ct. Rep. 366; Spofford v. Kirk, 97 U. S. 484, 24 Spofford v. Kirk, 97 U. S. 484, 488, 24 L. ed. 1032; Goodman v. Niblack, 102 U. L. ed. 1032, 1034.

S. 556, 26 L. ed. 229; St. Paul & D. R. Mr. Justice McReynolds delivered the Co. v. United States, 112 U. S. 733, 28 opinion of the court:

L. ed. 861, 5 Sup. Ct. Rep. 366; Bailey v. Appellant sued in the court of claims United States, 109 U. S. 432,' 27 L. ed. to recover balances for transportation 988, 3 Sup. Ct. Rep. 272; Butler v. Goreservices originally payable to the Flor- ley, 146 U. S. 303, 36 L. ed. 981, 13 Sup. ida Central & Peninsular Railroad Com- Ct. Rep. 84; Hager v. Swayne, 149 U. S. pany, to whose rights it had succeeded 242, 37 L. ed. 719, 13 Sup. Ct. Rep. 841; through merger or consolidation. Hold

Ball v. Halsell, 161 U. S. 72, 40 L. ed. ing that because of $ 3477, Rev. Stat., 622, 16 Sup. Ct. Rep. 554; Price v. ForComp. Stat. § 6383, 2 Fed. Stat. Anno rest, 173 U. S. 410, 43 L. ed. 749, 19 2d ed. p. 179 (July 29, 1846, 9 Stat. at Sup. Ct. Rep. 434. L. 41, chap. 66, and February 26, 1853, Goodman v. Niblack, and Price v. For

[657] In Erwin v. United States, 10 Stat. at L. 170, chap. 81), appellant could not maintain the action, that court rest, certain exceptions to the general dismissed its petition.

language of the section were recognized [656] Section 3477. "All trans

because not within the evil at which the fers and assignments made of

statute aimed. It was intended to pre

any claim upon the United States, or of vent frauds upon the Treasury, and the any part or share thereof, or inter- mischiefs designed to be remedied "are est therein, whether absolute or

mainly two: First, the danger that the ditional, and whatever may be the rights of the government might be emconsideration therefor, and all powers

barrassed by having to deal with several of attorney, orders, or other authori- persons instead of one, and by the intro. ties for receiving payment of

duction of a party who was a stranger

any such claim, or of any part or share

to the original transaction. Second, thereof, shall be absolutely null and that by a transfer of such a claim void, unless they are freely made and against the government to one or more executed in the presence of at least two persons not originally interested in it, attesting witnesses, after the allowance the way might be conveniently opened of such a claim, the ascertainment of the to such improper influences in prosecutamount due, and the issuing of a war

ing the claim before the departments, rant for the payment thereof."

the courts, or the Congress, as desperate The Seaboard Air Line Railway was cases, when the reward is contingent on originally chartered under the laws of success, so often suggest." Virginia; by authorized union with oth

We cannot believe that Congress iners, it became a consolidated corporation tended to discourage, hinder, or obstruct under the laws of Virginia, North Car- the orderly merger or consolidation of olina, South Carolina, Georgia, and corporations as the various states might Alabama; and in 1903, under "articles authorize for the public interest. There of agreement of merger and consolida- is no probability that the United States tion,” and the statutes of Georgia and could suffer injury in respect of outFlorida (§ 2173, Code of Ga. 1995; & standing claims from such union of in2812, Gen. Stat. of Fla.), the Florida terests, and certainly the result would Central & Peninsular Railroad, a Flor-not be more deleterious than would folida corporation, was united with it. As low their passing to heirs, devisees, agreed and provided by the laws of the assignees in bankruptcy, or receivers, all two states, the rights, privileges, fran- of which changes of ownership have chises, and all property, real, personal, been declared without the ambit of the and mixed, and all debts on every ac- statute. The same principle which recount, as well as stock subscriptions and quired the exceptions heretofore apother things in action belonging to each proved applies here. of the constituents, were transferred to The judgment of the court below is reand vested in the consolidated corpora- versed and the cause remanded, with dition without further act or deed, “as rection to afford reasonable opportunity effectually as they were in the former to both sides for taking any additional companies."

proof rendered necessary by the withSection 3477 has been before this drawal by the United States of a stipucourt many times for construction and lation upon which reliance had been application. United States v. Gillis, 95 placed; and for further proceedings in U. S. 407, 24 L. ed. 503; Erwin v. United | conformity with this opinion.


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(658) KANSAS CITY SOUTHERN RAIL | to each other and to the benefit conferred,

WAY COMPANY and the Texarkana & the law cannot stand against the complaint
Fort Smith Railway Company, Plffs. in of one so taxed in fact.

[For other cases, see Constitutional Law, 292

336, 559-581, in Digest Sup. Ct. 1908.]


equal protection BER 6 of Little River County, Arkansas.

of the laws - public improvements assessment discrimination against

railway company. (See S. C. Reporter's ed. 658–661.)

3. A state statute which sanctions as

sessing a railway company for benefits from Error to state court error or cer- a highway improvement upon a theory tiorari,

which, disregarding area and distance from 1. The validity of a state statute un- the highway, assumes that 9.7 miles of railder the Federal Constitution having been way in a purely farming section, treated as adequately challenged in the state courts, an aliquot part of the railway system, will the case may be brought up to the Federal receive benefits amounting to $67,900 from Supreme Court by writ of error, and cer- the construction of 11.2 miles of gravel tiorari will be denied.

road, while farm lands and town lots are Constitutional law-due process

assessed according to area and position,

of law equal protection of the laws

and wholly without regard to their value, public improvements.

the improvements thereon, or their present 2. A state legislature may create tax- or prospective use, is invalid as producing ing districts to meet the expense of local a discrimination against the railway com

to improvements, and may fix the basis of tax- pany 80 palpable and arbitrary as ation without violating U. S. Const. 14th amount to a denial of the equal protection Amend., unless its action is palpably arbi- of the laws. trary or plain abuse; but if, however, the (F95 other cases, see Constitutional Law, 292–

336, in Digest Sup. Ct. 1908.) statute providing for the tax is of such a character that there is no reasonable pre

[No. 205.) sumption that substantial justice generally will done, but the probability is that | Argued March 16 and 17, 1921. Decided the parties will be taxed disproportionately

June 6, 1921. Note.-As to what constitutes due process of law, generally-see notes to INERROR to the Supreme Court of People v. O'Brien, 2 L.R.A. 255; Kuntz

the State of v. Sumption, 2 L.R.A. 655; Re Gannon, judgment which affirmed a judgment of 5 L.R.A. 359; Ulman v. Baltimore, 11 the Circuit Court of Little River CounL.R.A. 224; Gilman y. Tucker, 13 L.R.A. ty, in that state, upholding certain local 304; Pearson v. Yewdall, 24' L. ed. U. improvement assessments against a railS. 436, and Wilson v. North Carolina, way company. Reversed and remanded 42 L. ed. U. S. 865.

for further proceedings. As to constitutional equality of privi

See same case below, 139 Ark. 424, leges, immunities, and protection, gen-1215 S. W. 656, 217 S. W. 773.

, erally-see note to Louisville Safety

The facts are stated in the opinion. Vault & T. Co. v. Louisville & N. R. Messrs. Samuel W. Moore and James Co. 14 L.R.A. 579.

B. McDonough argued the cause, and, As to who may raise objection that with Messrs. Frank H. Moore and A. F. taxation statute contains an unconstitu- Smith, filed a brief for plaintiffs in ertional 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 assessment of $67,900 against the propimprovement on highway-see note to erty of the plaintiffs in error is palpably Graham v. Detroit, 44 L.R.A.(N.S.) 836. arbitrary, unjust, unreasonable, and

On liability of railroad right of way void, and denies to the plaintiffs in erto assessment for local improvement- ror the equal protection of the laws, and see notes to Chicago, M. & St. P. R. Co. deprives them of their property without v. Milwaukee, 28 L.R.A. 249; Heman due process of law, contrary to § 1 of Constr. Co. v. Wabash R. Co. 12 L.R.A. the 14th Amendment to the Constitu(N.S.) 112, and Georgia R. & Bkg. Co. v. tion of the United States. Decatur, 40 L.R.A.(N.S.) 935.

Gast Realty & Invest. Co. v. Schneider On necessity of special benefit to sus- Granite Co. 240 U. S. 55, 60 L. ed. 523, tain assessment for local improvements | 36 Sup. Ct. Rep. 254; Hancock --see note to Re Madera Irrig. Dist. Muskogee, 250 U. S. 454, 63 L. ed. 1081, Bonds, 14 L.R.A. 755, and Myles Salt 39 Sup. Ct. Rep. 528; Myles Salt Co. v. Co. v. Iberia & St. M. Drainage Dist. Iberia & St. M. Drainage Dist. 239 U. L.R.A.1918E, 190.

S. 478, 60 L. ed. 392, L.R.A.1918E, 190,


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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; Assessments for local improvements in Citizens' Sav. L. Asso. v. Topeka, 20 Arkansas can be sustained only when the Wall. 655, 22 L. ed. 455; Union Tank benefits equal the assessments. The Line Co. v. Wright, 249 U. S. 275, 63 benefits represent the enhancement in L. ed. 602, 39 Sup. Ct. Rep. 276. value in the property, produced by the

In the earlier cases it was held, as a construction of the improvement. matter of law, that the right of way of

Rector v. Board of Improvement, 50 a railroad was incapable of being bene- Ark. 116, 6 S. W. 519; Kirst v. Street fited by local improvements.

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. 0. 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, Ark. 31; James v. Pine Bluff, 49 Ark. 89 Wis. 506, 28 L.R.A. 249, 62 N. W. 202, 4 S. W. 760; Craig v. Russellville 417. See also Louisville & N. R. Co. v. Waterworks Improv. Dist. 84 Ark. 390, Barber Asphalt Paving Co. 197 U. S. 105 S. W. 867; Road Improv. Dist. v. 430, 49 L. ed. 819, 25 Sup. Ct. Rep. 466; Glover, 86 Ark. 231, 110 S. W. 1031. 25 R. C. L. 144; Bauman v. Ross, 167 The plan of assessment was arbitrary, U. S. 548, 42 L. ed. 270, 17 Sup. Ct. unjust, and confiscatory. 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. 33 36 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 U. S. 55, 60 L. ed. 523, 36 Sup. Ct. Rep. Chester, 149 App. Div. 893, 134 N. Y.

254. Supp. 883; Cache River Drainage Dist.

The said assessments, arbitrary, unv. Chicago & E. I. R. Co. 255 İll. 398. just, and unreasonable as they are, con99 N. E. 635; Kankakee v. Illinois C. R: stitute an unlawful burden on inter

state commerce. Co. 263 Il. 589, 105 N. E. 731; Union Tank Line Co. v.

Union Tank Line Co. v. Wright, supra. Wright, 249 U. S. 275,

Petitioners' property is a right of way, 63 L. ed. 602, 39 Sup. Ct. Rep. 276.

and therefore a mere easement. The conjectural and possible increases

Gurdon & Ft. S. R. Co. v. Vaught, 97 in transporting farm products resulting Ark. 234, 133 S. W. 1019; Brown v. from the possible and probable clear. Young, 69 Iowa, 625, 29 N. W. 941; ing up and cultivating of unimproved Lidgerding v. Zignego, 77 Minn. 421, 77 lands, as a matter of law does not con

Am. St. Rep. 677, 80 N. W. 360; 6 Am. stitute benefits within the meaning of & Eng. Enc. Law, 531; Clayton v. Chithe Arkansas act under discussion.

cago, I. & D. R. Co. 67 Iowa, 238, 25 Cribbs v. Benedict, 64 Ark. 555, 44 N. W. 150; Hoffman's Appeal, 118 Pa. S. W. 707; New York, N. H. & I. R. 512, 12 Atl. 57. Co. v. Port Chester, 149 App. Div. 893, The action of the assessors, in in134 N. Y. Supp. 883; Cache River Drain- cluding the improvements on petitioners' age Dist. v. Chicago & E. I. R. Co. 255 property, and including the personal III. 398, 99 N. E. 635; Kankakee v. Il- property, and taking into consideration

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