408
94 FEDERAL ItltPORTER.
any:obl1gation 'or Hability imposed by the terms of such grant 'or 'reD:ewal. It is questiotli:!-blewhether therign.t :reserved to the city coun,qil t.o thereafter or diminiSh fare ,can faIrly be said to be eitb,er an '. obligation· or 'll liability Of the 'rarlroad comJlany within the meaning of this prohibition of the statutes; but, expressing no opinion on thatsubjec't; it is not true that the provisions of the section prohibit the city,'after making an agreement or grant or renewal of a. grant containing as to the rates of fare, from thereafter, upon 8u:(licient consideration, modifying such eontract. Thi!'\ has been expressly held in the case of Clement v. City of, Oincinnati,16 'Vkly. Law Bul. 355, and affirmed by the supreme eourt of the state in 19 Wkly. Law Bul. 74. The court there held:
"+he modification of a contrac.t l::tetw'een the city amI the owner of a streetrailroad route, made in good faith for the better accommodation of the public. is not void hy virtue of section 2502 of the Hevised Statutes, and the release of the grantee of such route from an obligation. although in consideration of more rapid transit, involving greater expense and higher rate of fare, is permitted."
See, also, Woodson v. Murdock, 22 Wall. 351; City of Cincinnati St. Ry. Cb.,:n Wldy. Law Bul. 308; Id., 2 Ohio X P. 298; also State v. East Cleveland R. Co., 6 Ohio Cir. Ct. R. 318, affirmed by supreme court in 27 Wkly. Law Bul. 64. For nearly 20 .rears, as the result of municipal legislation, sometimes hostile, sometimes friendly, the rights and privileges of the public and the different street-railroad companies of this city have been gradually molded into a well-defined code of ,street-railway laws, every step of which has been stubbornly contended for by the respective parties to these suits. Conceding to each pacty all the rights and privileges won ,by this agitation, the court is convinced, after a thorough and paiI:1Staking investigation of all the ordinances,grants, and evidence, that the complainants are entitled to the relief for which they pray in their bills of eomplaint, granting them a temporary injunction. The court thinks it must be clear to every fair-minded person, from the findings of fact filed with this opinion, that to permit the ordinances of October, 1898, to be put into. operation by the municipal authorities w0111d clearly impair tIre present contract- rights of the complainants, for which no adequate remedy' exists at law. The second contention: of the complainants is that the ordinances a rate so unreasonably low as to dein prive the complainants of their property without due. process of law. In support of this. contention, a large volume of testimony in the been filed by the defendant and the complainshape ants. On the part of the complainants these affidavits are offered to establish, their contenti(:m that, biking into consideration the value of their railway sys{elns, cost of construction, maintenance, and operation,. they could. not· carry passengers at the reduced rate proposedwitliout loss, and that this loss would be so great as that, in time, It W"oulddeprivethem of their property without due pl'ocess of law. The court has examined these affidavits sufficiently to see that it involve a laborious and expert accounting to decide this confention; and, having reached a conelusiGn on the first cOntention of the complainants, that the 'ordinanceS are invalid for the v.
·
FA Y V. CITY OF SPRINGFIELD.
409
reasons hereinbefore stated, it is not necessary, for the purposes of this motion, to make any further examination of that claim. It is, however, due the complainants to say that their testimony makes out a prima facie case, within the ruling announced in Smyth v. Ames, where the supreme court held: "A state enl\ctment or regulation made under the authority of a state enactment, establishing a rate for the transportation of persons 01' property by a railroad, that will not admit of the carrier earning sueh eompensation as, under all the circumstances, is just to it and to the public, would deprive such carrier of its property without due process of law, and deny to it the equal protection of the laws, and would therefore be repugnant to the fourteenth amendment to the constitution of the United States."
A preliminary injunction will issue, to remain in force until the final hearing of the cause, or until the further order of the court. Counsel will proceed to take their testimony for the final hearing, and the no days allowed by equity rule 69 will be apportioned between the parties.
PAY et al. v. CI'l'Y OF SPHlXGFLELD et al.
(Circuit Court, S. D. i\lissouri, W. D.
i\lay 9, 18tl9.)
1.
CONSTITUTIONAL RUl,E.
LAW-PUBLIC
IMPUOVEMEKTS-AsSESSMENTS-FRONT-FoOT
The statute of Missouri (sections 1495. 1496, Hev. St. 1889) authorizing the apportionment of the costs of repaving a street in dties of the third class on blocks and lots abutting thereon according to the front foot, without regard to the question of fact whether or not the given parcel of land Is benefited thereby to the extent of the assessment, and without affording the property owner an opportunity to question the exlstenre of such benefit. is in contravention of the fourteenth amendment to the federal constitution. and Is therefore void.
2.
The only theory of law under which the cost of such street improvements can be imposed as a special tax on the abutting property rather than liS a burden upon the entire community, being the fart that the loeal property is peculiarly benefited thereby, statutes or ordinances which arbitrarily assume that such local property Is benefited in the proportion of the frontage thereof are invalid, unless the opportunity is afforded, at some period in the progress of ass('ssment and the pnforrement thereof, to be heard upon the question of fact as to whether or Rot the benefit is equal to the burden imposed, and as the supreme court of the state holds that, notwithstanding no notice or hearing is provided therefor when the tax is imposed by the city council, the owner when sued for the enforcement of the special tax cannot be heard to defend upon the ground that his property was not in faet benefited, nor upon the question as to whether the apportionment of the costs is equal among the sen'l"aI lot owners. the statute is violative of the fourteenth amendment of the federal constitution. and the whole tax may 1)(; enjoined. Following Village of Xorwood v. Baker, 19 Sup. Ct. 187, 172 U. S. 2G9. (Syllahus by the Court.)
SAME-PECULIAR BENEFITS-HEARING.
.James Baker. for complainants. R. S. Goode, Barbour & Daniels, and A. A..Johnson, for defendants.
PHILIPS, Distriet Judge. This is a bill in eqnity to enjoin the' (·nforcement and collection of special tax bills assesspd against lots fronting on Commercial street in the city of "10. Tll("