Chicago & North Western Transportation Co. v. Webster County Board of Supervisors

71 F.3d 265, 1995 U.S. App. LEXIS 32827, 1995 WL 693069
CourtCourt of Appeals for the Eighth Circuit
DecidedNovember 24, 1995
DocketNo. 95-1969
StatusPublished
Cited by15 cases

This text of 71 F.3d 265 (Chicago & North Western Transportation Co. v. Webster County Board of Supervisors) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chicago & North Western Transportation Co. v. Webster County Board of Supervisors, 71 F.3d 265, 1995 U.S. App. LEXIS 32827, 1995 WL 693069 (8th Cir. 1995).

Opinion

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Chicago and North Western Transportation Company operates a railroad company with tracks located in Webster County, Iowa. The Webster County Board of Supervisors is the trustee for a drainage district and the railroad’s right-of-way crosses a ditch that the district maintains. As part of a project to widen the ditch, the board decided to enlarge the drain through the railroad’s right-of-way, and, pursuant to Iowa law, ordered the railroad to install a new culvert. When the railroad refused, the board built the culvert itself and commenced an action against the railroad in Iowa state court to recover its costs. The state case has been stayed.

The railroad then filed this suit against the board seeking a declaratory judgment under 28 U.S.C. § 2201 (1994) to the effect that [266]*266collecting the cost of the culvert constituted a “discriminatory tax” under the Railroad Revitalization and Regulatory Reform Act (“the 4-R Act”), 49 U.S.C. § 11503(b)(4) (1995). The district court1 found that the board did not violate the 4-R Act because charging the railroad for the culvert was neither discriminatory nor a tax and therefore granted the board’s cross motion for summary judgment. We affirm.

I.

The board has the authority to order the railroad to build and pay for the culvert pursuant to a comprehensive statutory scheme designed to ensure adequate drainage throughout Iowa. Under that scheme, county boards of supervisors have the power to establish drainage districts and to “cause to be constructed ... any levee, ditch, drain, or watercourse” needed for proper drainage. Iowa Code § 468.1 (1990). If a drainage district ditch crosses a railroad’s right-of-way, the board can direct the railroad to construct, at the railroad’s expense, necessary improvements to its roadbed. Id. § 468.109 — 468.111. If the railroad refuses, the board may build the improvement itself and bill the railroad for the cost of the project. Id. at §§ 468.112, 468.113.

II.

Our task is to determine whether the costs imposed on the railroad pursuant to Iowa drainage law comport with a federal law prohibiting states from imposing discriminatory taxes on railroads.

In an effort to improve the financial stability of the country’s railway system, Congress enacted the 4-R Act in 1976. See Oregon v. ACF Indus., Inc., — U.S. -, -, 114 S.Ct. 843, 846, 127 L.Ed.2d 165 (1994). When it passed the 4-R Act, Congress was aware that, because of their absentee, nonvoting status, railroads had historically fallen prey to discriminatory state and local taxes. Id. Congress attempted to remedy this difficulty by providing for declaratory and injunc-tive relief against discriminatory taxation. 49 U.S.C. § 11503(b). The first three subsections of § 11503(b) prohibit discriminatory property taxation. 49 U.S.C. § 11503(b)(1)-(3). The final subsection prohibits local governments from “impos[ing] another tax that discriminates against a rail carrier.” Id. § 11503(b)(4).

The railroad argues that requiring it to pay for the culvert is “another tax that discriminates against a rail carrier” within the meaning of § 11503(b)(4). We have characterized this section as a catch-all that “forbids all taxes that discriminate against railroads.” Trailer Train Co. v. State Tax Comm’n, 929 F.2d 1300, 1302 (8th Cir.1991). As the Seventh Circuit has noted, the provision is “designed to prevent a state from accomplishing the forbidden end of discriminating against railroads by substituting another type of tax” for discriminatory property taxation. Burlington Northern R.R. Co. v. City of Superior, 932 F.2d 1185, 1186 (7th Cir.1991).

III.

Because the board is not violating the 4-R Act if it is not taxing the railroad, our first inquiry must be whether imposing the costs of the culvert on the railroad constitutes a tax within the meaning of § 11503(b)(4). Because Congress did not define what it meant by a tax (and perhaps in the nature of things it could not), we lack specific statutory guidance as to whether it intended to prohibit the board from charging the railroad for the kinds of drainage improvements involved here.

Over 100 years ago, the Supreme Court faced the question of whether a federal statute that required ship owners to pay fifty cents for every immigrant passenger entering a U.S. port violated Article I, § 8 of the Constitution because the statute did not “provide for the common defense and general welfare” and it was not “uniform” in application. Head Money Cases (Edye v. Robertson), 112 U.S. 580, 589-90, 5 S.Ct. 247, 249-50, 28 L.Ed. 798 (1884). The Court held that the levy was not a tax, and thus Article I, § 8 had no application to the case, because the money raised did “not go to the general [267]*267support of government.” It was instead used solely to regulate immigration. Id. at 595, 596, 5 S.Ct. at 252, 252.

The Head Money Cases stand for the proposition that a government levy is a tax if it raises revenue to spend for the general public welfare. The Court has reiterated this definition in subsequent decisions, see, e.g., Nat’l Cable Television Assoc. v. United States, 415 U.S. 336, 340-41, 94 S.Ct. 1146, 1148-49, 39 L.Ed.2d 370 (1974), and courts of appeals have frequently relied on it to decide whether a challenged levy is a tax. For example, in Union Pacific R.R. Co. v. Pub. Util. Comm’n, 899 F.2d 854, 858-59 (9th Cir.1990), the Ninth Circuit held that an Oregon levy on railroad revenues was not a tax within the meaning of § 11503(b)(4) of the 4-R Act because the proceeds went exclusively to defray the cost of railroad regulation “rather than to raise general revenues.” See also San Juan Cellular Telephone Co. v. Pub. Serv. Comm’n, 967 F.2d 683, 685 (1st Cir.1992) (“Courts .. emphasize the revenue’s ultimate use, asking whether it provides a general benefit to the public.”); Keleher v. New England Tel. & Tel. Co., 947 F.2d 547, 549 (2d Cir.1991) (“The word ‘tax’ encompasses any ... revenue collection device.”); Brock v. Washington Metro. Area Transit Auth., 796 F.2d 481, 488 (D.C.Cir.1986) (“A levy is properly defined as a ‘tax’ ... when its principal purpose is to raise revenues.”); Schneider Transp. v.

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71 F.3d 265, 1995 U.S. App. LEXIS 32827, 1995 WL 693069, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chicago-north-western-transportation-co-v-webster-county-board-of-ca8-1995.