Michigan Central Railroad v. Baikie , 249 Mich. 138 ( 1930 )

The farm lands are divided without regard to improvement or value into four classes, and assessed $4.37, $2.19, $1.09, and $.55 per acre in the order named. Railroad land or right of way is assessed on a different basis. The rate against the railroads is from near 100 to nearly 800 times greater than the rate against farm lands. The Michigan Central Railroad is assessed for benefits in Arenac county on about nine acres nearly $3,850, approximately $450 per acre. The Detroit Mackinac Railway is assessed for benefits in Arenac county on about six acres nearly $4,200, approximately $700 per acre. Adjacent to this 100-foot railroad right of way of nearly six acres against which the apportionment is 12 per cent. of the cost of the drain is a 66-foot right of way of the Consumers Power Company, against which the apportionment is but .0088 per cent., less than 1/1000th as much as that of the railroad. Why this marked difference in favor of the power property and against the railroads, and in favor of the farms and against the railroads? There seems to be no answer except the following: A culvert was required where the drain crosses each railroad right of way. The cost thereof must be included in the estimate for the drain as a part of the necessary expense of construction. It was so included, to the Michigan Central Railroad, $3,200, to the Detroit Mackinac Railway, $3,500. It is apparent that the approximate cost of these culverts was in fact unlawfully charged back against the respective railroads as a part of the apportionment and assessment.

Drain Commissioner Baikie testified:

"Did you consider the culvert to be put across the railroad as one of the benefits to the railroad?

"A. No, I did not consider the cost of the culvert as being a benefit.

"Q. I did not ask you — the culvert to be put in there, did you consider that a benefit to the railroad?

"A. I considered it would be a benefit to the railroad.

"Q. Did you consider it would be a benefit to anyone else besides the railroad?

"A. No.

"Q. Do you think the railroad should pay for its culvert?

"A. I do.

"Q. In making your assessments, did you make it with the idea that the railroad should pay for all of the benefits received in this drain including the benefits of the culvert to be placed there?

"A. Yes."

Mr. Selle, a member of the board of review, testified:

"A. We figured, that the railroad got that road through there, and this culvert was not large enough, and we figured that for the benefit of the railroad.

"Q. Now, supposing, Mr. Selle, that there has been a culvert at the point of this drain beneath the railroad tracks of substantial construction of the size provided in the specifications of the drain; in other words, supposing that there was already there a sufficient culvert so that not a dollar would have to be spent in enlarging it, if you had found that condition to exist, would you have assessed the Detroit Mackinac 12 per cent.? * * *

"A. No, I would not. I do not think we would have assessed this."

The assessments against the railroads may not have been intended as a fraud, but they amount to that.

In Kansas City Southern Rys. Co. v. Road Imp. Dist.,256 U.S. 658 (41 Sup. Ct. 604), benefits were assessed against plaintiff $7,000 per mile of main track, $67,900. Farm lands were divided into five zones and assessed $12, $10, $8, $6, and $4 per acre, in the order named without reference to value or improvement. Some other property was assessed on a like plan. The assessment was challenged as arbitrary and in violation of the due process and equal protection clauses of the 14th Amendment. It was there held that there was discrimination so palpable and arbitrary as to amount to a denial of equal protection of the law.

The assessment in the case at bar is so palpably arbitrary and in effect fraudulent that no further authorities need be cited.

That we may not sit in review of the judgment of the commissioner and the board of review does not leave us powerless to do equity.

We can and should set aside the assessment against the properties of plaintiffs and send the proceeding back for a new assessment.

The decrees are reversed, with costs, and decrees entered for plaintiffs in accordance herewith.

WIEST, C.J., and BUTZEL, McDONALD, and POTTER, JJ., concurred with CLARK, J.