(45 S.Ct.)

Sp. Acts Ark. 1920, No. 98, confirming assessments of benefits from road improvement in road district created under Crawford & Moses' Dig. Ark. § 5399 et seq., recognized by Supreme Court of state as legislative determination of lands which will be benefited and of proportions in which they will share in the benefits, must be treated in the United States Supreme Court as an admissible legislative assessment of benefits, so far as state Constitution is concerned.

9. Constitutional law

233, 290(1)-Highways142-Evidence held not to show assessment against railroad property palpably arbitrary or unreasonably discriminatory, in violation of Fourteenth Amendment.

*381

8. Courts 366 (6)—Special act confirming assessments recognized by State Supreme *The road reaches from De Queen, the counCourt as legislative determination of lands ty seat, to the eastern border of the county, benefited so treated in United States Su- 18 miles. It had been a mere dirt road, not preme Court. good in any season, and impassable at times. The improvement consisted in reducing objectionable curves and grades, installing modern bridges and culverts, reconstructing the roadbed, putting on a hard and durable surface, and generally fitting the road for economical and expeditious rural travel and transportation. To accomplish the improvement a road district covering approximately 3 miles of territory on either side of the road was created under a general law of the state. Section 5399 et seq., Crawford & Moses' Digest 1921. Money to pay the cost of the improvement, estimated at $200,000, was to be obtained primarily through an issue of interest-bearing bonds and ultimately through a special tax spread over a period of 20 years. The tax was to be laid on all lands, town lots, railroads, and other real property within the district, in the proportions in which they would be benefited by the improvement. Assessors appointed by the county court were to assess the benefits and to set forth in their report the name of the owner of each parcel, a description of the property, its "present assessed value" for general taxing purposes, and the amount of benefits assessed to it. When completed the assessment was to be filed in the county court, a time for hearing parties in interest was to be fixed, and public notice thereof to be given. The court was to review the work of the assessors, and to equalize, lower, or raise the assessment of benefits to particular parcels as justice might require. An appeal could be taken to the circuit court, which was to give a hearing de novo in respect of

Evidence held insufficient to show that assessment against railroad property in road district created under Crawford & Moses' Dig. Ark. § 5399 et seq., confirmed by Sp. Acts Ark. 1920, No. 98, was either palpably arbitrary or unreasonably discriminatory in violation of the due process and equal protection clauses of

Const. Amend. 14.

10. Highways 142-Railroads, objecting to assessment of benefits confirmed by Legislature, had burden of overcoming presumption attending legislative determination.

On railroad's objection to assessment against railroad property in road improvement district created under Crawford & Moses' Dig. Ark. § 5399 et seq., confirmed by Sp. Acts Ark. 1920, No. 98, on ground that assessment was in violation of due process and equal protection clauses of Fourteenth Amendment, the burden was on the railroad company to overcome the presumption attending the legislative determination.

was

In Error to the Supreme Court of the such objections as were set forth in the affiState of Arkansas.

Proceeding by Road Improvement District No. 3 of Sevier County, Ark., and others, to assess benefits, opposed by the Kansas City Southern Railway Company and another, owners. A circuit court judgment sustaining assessment was affirmed by the Supreme Court of Arkansas (156 Ark. 116, 246 S. W. 113), and the owners bring error. Affirmed. #380

*Messrs. Samuel W. Moore, of New York City, James B. McDonough, of Ft. Smith, Ark., and F. H. Moore and A. F. Smith, both of Kansas City, Mo., for plaintiffs in error. Mr. Hal L. Norwood, of Mena, Ark., for

defendants in error.

davit for appeal, and a further appeal could be taken to the Supreme Court of the state. A comprehensive statement of the various steps to be taken in the proceedings and of their nature is given in Commissioners, etc., v. St. Louis Southwestern Ry. Co., 257 U. S. 547, 42 S. Ct. 250, 66 L. Ed. 364.

*382

*Within the road district, at De Queen, are 2 miles of main track, 9 miles of side tracks, a depot, and other buildings, which form part of a railway line, called the Kansas City Southern, which extends from Kansas City, Mo., to Port Arthur, Tex. The assessed value for general taxing purposes of this railway property within the district was $129,615.

The district assessors assessed it with benefits amounting to $21,270, or approximately 16 Mr. Justice VAN DEVANTER delivered | per cent. of its assessed value. The assessed the opinion of the Court.

This case presents a controversy over the constitutional validity of an assessment of benefits accruing to railway property from the improvement of a public road in Sevier county, Ark.

value of the farm lands and town lots within the district for general taxing purposes was $897,660. The district assessors assessed them with benefits amounting to $448,354, or approximately 54 per cent. of their assessed value. Other property in the district, not re

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*384

quiring special notice here, was assessed with | stantial benefit from the improvement. The benefits amounting to $40,409. Thus the aggregate of the benefits assessed was $510,033. The special tax amounted to 70 per cent. of the benefits assessed, or 32 per cent. per annum for 20 years-the full tax being intended to cover the bond issue, with interest. The portion of the tax laid on the railway property was $14,899, or $744.45 per annum. In regular course the assessment was reviewed by the county court and confirmed, the court finding that the lands and other real property in the district would be "greatly benefited" by the improvement and that the assessment of benefits was "fair, just, and equal to all landowners."

witnesses differed pronouncedly. Some expressed positive opinions on the subject, without advancing anything of substance in support of their opinions This was true to a greater degree of the witnesses for the companies than of those for the district. Some of the latter referred to and detailed conditions and transactions tending to give their opinions strong support. Among other things, they testified that theretofore the lands in the vicinity of the road had necessarily been put to uses which made only a light contribution to the tonnage and business of the railway; that the lands were naturally well adapted to other uses, such as growing fruits and vegetables, but could not profitably be used for these purposes in the absence of road facilities for getting the products to places of shipment expeditious

Two companies interested in the railway property appealed to the circuit court, and in the affidavit for appeal assailed the assessment, in so far as it affected them, on the grounds, first, that it was purely arbitrary, and therefore in contravention of the duely and without injury from jolting; that process of law clause of the Fourteenth Amendment to the Constitution of the United States, because the railway property neither would nor could receive any benefit from the improvement of the road; secondly,

*383

that it was not in accord with the equal *protection clause of that amendment, because the railway property on the one hand, and the farm lands and town lots on the other, were assessed with benefits in grossly unequal proportions, to the detriment of the railway property; and, thirdly, that it was made in disregard of the commerce clause of the Constitution of the United States, because the benefits assessed to the railway property were not such as would or could accrue to that property, but were such as would accrue, if accruing at all, to the interstate business in which that property was being used, and therefore could not be made the basis of a special improvement tax without burdening interstate commerce.

While the appeal was pending in the circuit court the state Legislature passed a special act (No. 98, approved February 7, 1920) recognizing the creation and boundaries of the district, approving the plans for the improvement of the road, confirming the assessment of benefits as sustained by the county court, and declaring that the assessment "fairly represents the benefits that will accrue" to the railway property and other tracts in the district. The companies then took the position that the legislative confirmation was open to the same constitutional objections that were made to the original assessment.

A hearing was had in the circuit court, at which the companies assumed the burden of establishing that their objections were well founded, in so far as they turned on matters of fact. Much evidence was produced on both sides. The greater part was addressed to the question whether the railway property within the district would receive any sub

when plans for the improvement of the road
were adopted fruit growing and truck farm-
ing began to displace the prior uses; that at
the time of the hearing, which was after one-
half of the road was completed and the rest
graded, the new crops were being grown and
ing quantities; that these products were
sent to distant markets in large and increas-
hauled over the new road in motor trucks
to De Queen and Locksburg, those taken to
Locksburg being then forwarded over a short
local railroad to De Queen; that all were
there shipped over the railway-the one in
question-to Kansas City and other points
beyond; and that there was no other railway
leading to available markets. The same wit-
the old to the new uses was still progressing;
nesses further testified that the change from
and not cultivated before were being pre-
that other lands tributary to the new road
pared for cultivation; and that timber and
other heavy products which could not reach
the railway before were being hauled over
the new road and shipped out in substan-
tial volume.

dence was meager.
On the question of discrimination the evi-
The assessed value of
the railway property for general taxing pur-
poses was conceded to be about one-half its
actual value. On the basis of assessed values,
that property was assessed with a much lower
proportion of the total benefits than the farm
lands and town lots were, the proportional re-
lation being that of 16 to 54. There was some

*385

*evidence of instances in which the assessed value of farm lands and town lots for general taxing purposes was less than one-half their real value, but there was no evidence that this was general. Even in the instances named the benefits assessed were generally much in excess of 16 per cent. of one-half the real value. There was no evidence of an intentional overassessment of benefits to the railway property or of an intentional underassessment to the farm lands and town lots. The three assessors testified that they as

(45 S. Ct.)

sessed all property in the same way-accord- Only where the legislative determination is ing to the benefits which in their judgment the particular parcels would receive from the improvement of the road.

palpably arbitrary, and therefore a plain abuse of power, can it be said to offend the due process of law clause of the Fourteenth The circuit court was of opinion on all the Amendment. Spencer v. Merchant, 125 U. S. evidence that the improvement would bring 345, 355-357, 8 S. Ct. 921, 31 L. Ed. 763; to the railway a very substantial increase French v. Barber Asphalt Paving Co., 181 U. in tonnage and business at De Queen; that S. 324, 338, et seq., 21 S. Ct. 625, 45 L. Ed. this would enlarge its receipts and net rev- 879; Houck v. Little River Drainage District, enue, and thereby materially benefit its prop-239 U. S. 254, 262, 265, 36 S. Ct. 58, 60 L. Ed. erty at De Queen; and that the assessment 266; Myles Salt Co. v. Iberia Drainage Disof benefits to that property was neither trict, 239 U. S. 478, 481, 36 S. Ct. 204, 60 L. arbitrary nor unreasonably discriminatory, Ed. 392, L. R. A. 1918E, 190; Branson v. but just and fair. On that determination of Bush, 251 U. S. 182, 189, 40 S. Ct. 113, 64 the issues of fact the court entered a judg- L. Ed. 215; Valley Farms Co. v. County ment overruling the objections and uphold- of Westchester, 261 U. S. 155, 163, 43 S. ing the assessment. The companies appealed Ct. 261, 67 L. Ed. 585. And only where there to the Supreme Court of the state, and it is manifest and unreasonable discrimination affirmed the judgment. 156 Ark. 116, 246 in fixing the benefits which the several parS. W. 113. That court put its decision on cels will receive can the legislative detertwo grounds taken collectively-one that the special confirmatory act constituted a legis-mination be said to con*travene the equal prolative determination of the correctness of the tection clause of that amendment. assessment, which could not be overturned City Southern Ry. Co. v. Road Improvement unless found to be obviously arbitrary or District No. 6, 256 U. S. 658, 41 S. Ct. 604, 65 unreasonably discriminatory; and the other L. Ed. 1151; Thomas v. Kansas City Souththat there was ample evidence to sustain the ern Ry. Co., 261 U. S. 481, 43 S. Ct. 440, 67 L. findings of the circuit court, which negatived Ed. 758. the existence of any such error, and that the circuit court's solution of the conflicts in the evidence was not open to review on appeal.

[1] The companies brought the case here on writ of error, and afterwards presented a

*387

Kansas

[6, 7] To justify an assessment of benefits to particular lands it is not essential that the or immediate. benefits be direct Valley Farms Co. v. Westchester County, supra. But it is essential that they have a better basis than mere speculation or conjecture. Kansas City Southern Ry. Co. v. Road Improvement District No. 3, supra. In the case of railway property they may consist of gains from increased traffic reasonably expected to result from the improvement. Thomas V. Kansas City Southern Ry. Co., supra; Branson v. Bush, supra.

[8] The special confirmatory act was recognized by the Supreme Court of the state as a legislative determination of the lands which will be benefited and of the proportions in which they will share in the benefits. It therefore must be treated here as an admissible legislative assessment of benefits so far as the state Constitution is concerned.

[2-5] By a long line of decisions in this court it has been settled that, where the [9, 10] The evidence, as before outlined, falls state Constitution as construed by the state short of showing that the assessment against court of last resort does not provide other- the railway property was either palpably arwise, the Legislature of a state may require bitrary or unreasonably discriminatory. The that the cost of a local public improvement, burden was on the railway companies to oversuch as the construction or reconstruction come the presumption attending the legislaof a public road, be distributed over the lands tive determination, and this they failed to particularly benefited and charged against do; for, under the evidence produced, it is them according to their value, their area, or an entirely admissible view that the railway the benefits which they will receive; may it-property will be substantially benefited by self determine what lands will be benefited, and in what proportions they will share in the benefits; and may avail itself, for the purposes of that determination, of any information which it deems appropriate and sufficient, including such as may be afforded by reports and estimates made in prior assessment proceedings having the same object.

the road improvement and that the benefits are fairly assessed as between that property and the farm lands and town lots. True, the amount of benefits which will accrue to the railway property is largely a matter of forecast and estimate; but the same thing is true of the farm lands and town lots, and also of benefit assessments in general. See

(45 S.Ct.)

(266 U. S. 497)
HYGRADE PROVISION CO., Inc., et al. v.
SHERMAN, Atty. Gen. of New York, et al.
LEWIS & FOX CO. v. SAME. SATZ v.
SAME.

Amendment and the commerce clause of the Constitution of the United States. So far as these cases are concerned, the statutes are substantially alike, and it is enough to refer to chapter 581 which provides that any

(Argued Nov. 20 and 21, 1924. Decided Jan. 5, person who with intent to defraud:

1925.)

Nos. 104, 105, and 106.

Generally equity will not interfere to prevent the enforcement of a criminal statute even though unconstitutional, but will interfere to prevent prosecution under unconstitutional statute, when necessary to effectually protect property rights.

4. Sells or exposes for sale any meat or meat preparation and falsely represents the same to be kosher, or as having been

1. Injunction 85(2), 105(2)—Rule as to in- prepared under and of a product or products terference with enforcement of criminal stat-sanctioned by the orthodox Hebrew religious requirements; or falsely represents any food ute stated. product or the contents of any package or container to be so constituted and prepared, by having or permitting to be inscribed thereon the word 'kosher' in any language; or sells or exposes for sale in the same place of business both kosher and nonkosher meat or meat preparations who fails to indicate on his window signs and all display advertising, in block letters at least four inches in height, 'kosher and or who exposes nonkosher meat sold here'; for sale in any show window or place of business *both kosher and nonkosher meat or meat

2. Constitutional law 240(1), 296(1) Food-Statutes denouncing sale of meat falsely represented to be "kosher," or "sanctioned by orthodox Hebrew religious requirements," held not unconstitutional.

*499

may be," is guilty of a misdemeanor.

Laws N. Y. 1922, cc. 580, 581, making it a crime to sell or expose for sale, with intent to products who fails to display over such meat or meat preparation so exposed a sign in block defraud, meat or meat preparation falsely rep- letters at least four inches in height reading resented to be "kosher," or product "sanction-kosher meat,' or 'nonkosher meat,' as the case ed by orthodox Hebrew religious requirements," held not violative of due process or equal protection clause of Fourteenth Amendment, even though word "kosher" and phrase "orthodox Hebrew religious requirements" are indefinite and uncertain, in view of the intent to defraud required.

3. Commerce 60(3) — Statute prohibiting sale of meat falsely represented to be "kosher" held not burden on interstate commerce.

Laws N. Y. 1922, cc. 580, 581, making it a crime to sell or expose for sale with intent to defraud meat or meat preparation falsely represented to be "kosher," or product "sanctioned by orthodox Hebrew religious requirements," held not violative of commerce clause of United States Constitution, in so far as they relate to meat and meat preparations shipped into state.

Appeals from the District Court of the United States for the Southern District of New York.

Suits by the Hygrade Provision Company, Inc., and others, by the Lewis & Fox Company, and by Harry Satz against Carl Sherman, as Attorney General of State of New York, and another. Decrees of dismissal, and plaintiffs appeal. Affirmed.

*498

*Mr. David L. Podell, of New York City, for appellants.

Messrs. S. H. Hofstadter and Felix C. Benvenga, both of New York City, for appellees.

Mr. Justice SUTHERLAND delivered the opinion of the Court.

Separate suits were brought against appellees to enjoin them from proceeding against appellants for any alleged failure to comply with the foregoing statutory requirements or from making any threats of prosecuting or from conducting any prosecutions by reason of any failure to label any of the meats sold as "not kosher" or otherwise interfering with or seeking to prevent the full, free and unhampered sale of their products without labeling, etc., and from injuring their business "by compelling it to be discredited in standing and reputation, and by having its merchandise wrongfully branded as 'nonkosher' in accordance with the requirements of said enactments."

The several bills allege that appellees "have threatened to prosecute all complaints against persons or concerns engaged as manufacturers, dealers, retailers, or otherwise in the sale of raw or prepared meat commodities, who are charged with violating the statutes"; that by reason of these threats and of the fear inspired by the requirements of the statutes, when called upon at their peril to determine whether their products are koshed and will continue to decide that all proder and label the same, appellants have deciducts sold by them are not kosher; that

such determination has been and will be in

*500

duced by the fear that some judge or jury might determine that the rabbinical law or the customs, traditions, and precedents *of These appeals challenge the constitutional- the orthodox Hebrew religious requirements ity of chapters 580 and 581, 2 Laws of New necessitate that even such meats as appelYork 1922, pp. 1314, 1315, as being in contra- lants sell as kosher are not kosher. The bills vention of the due process and equal protec- contain allegations tending to show the im tion of the law clauses of the Fourteenth possibility, or, at least, the great difficulty, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes