
    NORTHERN PACIFIC RAILWAY COMPANY, a Corporation, v. RICHLAND COUNTY, a Municipal Corporation.
    (L.R.A.1915A, 129, 148 N. W. 545.)
    Railroad right of way — may be assessed for local drain, if benefited — fee in same immaterial.
    1. A railroad right of way, if actually benefited, may be assessed for a local drain which is constructed under the provisions of Chapter 23, Rev. Codes 1905, and this irrespective of the fact whether the fee is in the railroad company or not.
    Public policy — supreme court cannot make — commonwealth creates, and court announces.
    2. A, supreme court can announce no public policy of its own, but merely what it believes to be the public policy, of the people of the commonwealth by which it is created. It has no power to create or command, but merely to construe; and where the people have spoken, either in the form of a constitutional enactment or a valid and constitutional statute, it must be controlled by their decisions and conclusions.
    Assessment of rights of way — local drains — benefits conferred — constitutional statute.
    3. Chapter 23, Rev. Codes 1905, which provides for the assessment of railroad rights of way for the benefits conferred by the construction of local drains, does not violate the provisions of the 14th Amendment to the Federal Constitution, nor the so-called Commerce Clause (§ 8, art. 1) of that instrument, even though it is sought to be applied to interstate lines.
    Note. — While there is a considerable conflict among the authorities on the question of the liability of a railroad right of way to assessments for local improvements, the majority of the cases, as shown by a note in 40 L.R.A.(N.S.) 935, in which all the cases are collated and discussed, seem to support the rule that a railroad right of way may be so assessed, if it is benefited by the improvement. If the property is not benefited, the assessment against it will not hold. A distinction has sometimes been made between the right of way and other railroad property necessarily used in the operation of the road.
    (Opinion filed June 29, 1914.)
    Appeal from the District Court of Richland County, Allen, J.
    Action to determine adverse claims in and to a railroad right of way. Judgment for defendant. Plaintiff appeals.
    Affirmed.
    
      Statement by Bruce, J.
    This action was brought by the Northern Pacific Railway Company against Richland county, for the purpose of determining adverse interests in and to an easement or right of way of the plaintiff company, the claim of the plaintiff being for a franchise or right of way as opposed to an ownership in fee. The answer admits the ownership of the franchise or easement, but asserts a lien arising from a levy for benefits assessed against the property for and on account of the construction of a drain under chapter 23, Rev. Codes 1905.
    Judgment was rendered in the district court, decreeing a lien in favor of the defendant to the amount of $3,180.70, and an appeal has been taken to this court upon the judgment roll merely and for the sole purpose of testing the legality of the proceedings.
    
      Watson & Young, Purcell & Divet, for plaintiff-appellant.
    The pretended lien is void in that no legal assessment-was ever made. Such proceedings are purely statutory, and the statute must be strictly followed in all material respects. Hamilton, Special Assessments, p. 540; Norwood v. Baker, 172 H. S. 269, 291, 43 L. ed. 443, 452, 19 Sup. St. Rep. 187; Bidwell v. Huff, 103 Red. 362; Lee v. Ruggles, 62 111. 427.
    An assessment for a street improvement where the amount is in figures only, without the dollar mark or other mark to indicate value, is void. McClellan v. District of Columbia, 7 Mackey, 94; Brown v. Joliet, 22 111. 123; Balfe v. Johnson, 40 Ind. 235; Payne v. South Springfield, 161 111. 285, 44 N. E. 105.
    Special assessments for local improvements cannot be made against property unless specifically provided by statute. Chicago, R. I. & P. R. Co. v. Ottumwa, 112 Iowa, 300,-51 L.R.A. 763, 83 N. W. 1074; Detroit, G-. H. & M. R. Co. v. Grand Rapids, 106 Mich. 13, 28 L.R.A. 793, 58 Am. St. Rep. 466, 63 N. W. 1008; Southern California R. Co. v. Workman, 146 Cal. 80, 79 Pac. 586, 82 Pac. 79, 2 Ann. Cas. 583; Dean v. Paterson, 67 N. J. L. 199, 50 Atl. 620; Allegheny City v. Western Pennsylvania R. Co. 138 Pa. 375, 21 Atl. 763; New York & N. H. R. Co. v. New Haven, 42 Conn. 279, 19 Am. Rep. 534; State ex rel. Milwaukee Street R! Co. v. Anderson, 90 Wis. 550, 63 N. W. 747; Erie v. A Piece of Land, 175 Pa. 523, 34 Atl. 808.
    There is no authority for making an assessment upon a right of way, or for selling the same. Southern California P. Co. v. Workman, 14® Cal. 80, 79 Pac. 586, 82 Pac. 79, 2 Ann. Cas. 583; Boehme v. Monroe,. 106 Mich. 401, 64 N. W. 206; McCutcheon v. Pacific P. Co. 72 Mo. App. 271; Philadelphia v. Philadelphia, W. & B. P. Co. 33 Pa. 41;. Bridgeport v. New York & N. H. P. Co. 36 Conn. 255, 4 Am. Pep. 63; Mt. Pleasant v. Baltimore & O. P. Co. 138 Pa. 365, 11 L.P.A. 520,. 20 Atl. 1052.
    The basis of the right to make such a special assessment is the enhancement in the value of the property. Hamilton, Special Assessments, pp. 240, 449, 450; Chicago Union Traction Co. v. Chicago, 204 111. 363, 68 N. E. 519; Jones v. Chicago, 206 111. 374, 69 N. E. 64;. Chicago Union Traction Co. v. Chicago, 207 111. 607, 69 N. E. 803;. Chicago Union Traction Co. v. Chicago, 207 111. 544, 69 N. E. 849;. Chicago Union Traction Co. v. Chicago, 215 111. 410, 74 N. E. 449; Kankakee Stone & Lime Co. v. Kankakee, 128 111. 173, 20 N. E. 670; Chicago Union Traction Co. v. Chicago, 204 111. 363, 68 N. E. 519; Chicago, P. I. & P. P. Co. v. Ottumwa, 112 Iowa, 300, 51 L.P.A. 763, 83 N. W. 1074; Boston v. Boston & A. P. Co. 170 Mass. 95, 49 N. E. 95; Luke Shore & M. S. P. Co. v. Grand Papids, 102 Mich. 374, 29 L.P.A. 195, 60 N. W. 767; Allegheny City v. Western Pennsylvania P. Co. 138 Pa. 375, 21 Atl. 763; Farmers’ Loan & T. Co. v. Ansonia,. 61 Conn. 76, 23 Atl. 706; Chicago & N. W. P. Co. v. People, 120 I1L 107,11 N. E. 418; Philadelphia v. Philadelphia, W. & B. P. Co. 33 Pa. 41; Bridgeport v. New York & N. II. P. Co. 36 Conn. 255, 4 Am. Pep. 63; Pe Public Park Comrs. 47 Hun, 302; Detroit, G. H. & M. R. Co. v. Grand Papids, 106 Mich. 13, 28 L.P.A. 793, 58 Am. St. Pep. 466, 63 N. W. 1007; Chicago, M. & St. P. P. Co. v. Milwaukee, 89 Wis. 506, 28 L.P.A. 249, 62 N. W. 417; Mt. Pleasant v. Baltimore & O. P. Co. 138 Pa. 365, 11 L.P.A. 520, 20 Atl. 1052; 2 Elliott, Railroads, pp. 198, 199, notes 26, 28, 63 N. W. 1007; South Park. Comrs. v. Chicago, B. & Q. P. Co. 107 111. 105.
    Railroad property cannot be sold for street improvements. A railroad right of way cannot be benefited by the opening of a street across it so as to subject it to an assessment for such improvements. Detroit, G. H. & M. P. Co. v. Grand Rapids, 106 Mich. 13, 28 L.P.A. 793, 58 Am. St. Pep. 466, 63 N. W. 1008; Chicago, P. I. & P. P. Co. v. Ottumwa, 112 Iowa, 300, 51 L.P.A. 763, 83 N. W. 1074; Mt. Pleasant v. Baltimore & O. P. Co. 138 Pa. 365, 11 L.P.A. 520, 20 Atl. 1052; Hammett v. Philadelphia, 65 Pa. 150, 3 Am. Rep. 615; Chicago, M. & St. P. R. Co. v. Milwaukee, 89 Wis. 506, 28 L.R.A. 249, 62 N. W. 417; Seattle v. Seattle Electric Co. 15 L.R.A.(N.S.) 487, note; South Park Comrs. v. Chicago, B. & Q. R. Co. 107 111. 105; O’Reilley v. Kingston, 114 N. Y. 439, 21 N. E. 1004; Indianapolis & V. R. Co. v. Capital Paving & Constr. Co. 24 Ind. App. 114, 54 N. E. 1076; Heman Constr. Co. v. Wabash R. Co. 12 L.R.A.(N.S.) 114 note; Abbott, Mun. Corp. pp. 811, 812; McVerry v. Boyd, 89 Cal. 304, 26 Pac. 885; Schmidt v. Market Street & W. G. R. Co. 90 Cal. 37, 27 Pac. 61; New York & N. II. R. Co. v. New Haven, 42 Conn. 279, 19 Am. Rep. 534; Boston v. Boston & A. R. Co. 170 Mass. 95, 49 N. E. 95; Auditor General v. Duluth, S. S. & A. R. Co. 116 Mich. 122, 74 N. W. 505; Eirst Div. St. Paul & P. R. Co. v. St. Paul, 21 Minn. 526; St. Paul v. St. Paul & S. C. R. Co. 23 Minn. 469; State ex rel. Minnesota Transfer R. Co. v. District Ct. 68 Minn. 242, 71 N. W. 27; State, Morris & E. R. Co. Prosecutors, v. Jersey City, 36 N. J. L. 56; Winona & St. P. R. Co. v. Watertown, 1 S. D. 46, 44 N. W. 1072; Chicago, M. & St. P. R. Co. v. Milwaukee, 89 Wis. 506, 28 L.R.A. 249, 62 N. W. 417; Junction R. Co. v. Philadelphia, 88 Pa. 424; Erie v. A. Piece of Land, 175 Pa. 523, 34 Atl. 808; Columbia & P. S. R. Co. v. Chilberg, 6 Wash. 612, 34 Pac. 163; Oshkosh City R. Co. v. Winnebago County, 89 Wis. 435, 61 N. W. 1107; Cooley, Taxn. pp. 456, 457; Southern California R. Co. v. Workman, 146 Cal. 80, 79 Pac. 588, 82 Pac. 79, 2 Ann. Cas. 583; Louisville, N. A. & C. R. Co. v. State, 122 Ind. 443, 24 N. E. 350; Philadelphia v. Philadelphia, W. & B. R. Co. 33 Pa. 41; Philadelphia v. Philadelphia & R. R. Co. 177 Pa. 292, 34 L.R.A. 564, 35 Atl. 610; Junction R. Co. v. Philadelphia, 88 Pa. 428.
    Freight house, right of 'way, and tracks of a railroad company cannot be sold as a mode of collecting an assessment for local improvements. Chicago, M. & St. P. R. Co. v. Milwaukee, 89 Wis. 506, 28 L.R.A. 249, 62 N. W. 417; Lake Shore & M. S. R. Co. v. Grand Rapids, 102 Mich. 374, 29 L.R.A. 195, 60 N. W. 767; Junction R. Co. v. Philadelphia, 88 Pa. 424; State, New Jersey R. & Transp. Co. Prosecutor, v. Elizabeth, 37 N. J. L. 331; New York & II. R. Co. v. Morrisania, 7 Hun, 652; Bloomington v. Chicago & A. R. Co. 134 111. 451, 26 N. E. 366; Bridgeport v. New7 York & N. H. R. Co. 36 Conn. 255, 4 Am. Rep. 63; South Park Comrs. v. Chicago, B. & Q. R. Co. 107 111. 105; New York & N. H. E. Co. v. New Haven, 42 Conn. 279, 19 Am. Eep. .534; Detroit, G. H. & M. E. Co. v. Grand Eapids, 106 Mich. 13, 28 L.E.A. 793, 58 Am. St. Eep. 466, 63 N. W. 1008; East Alabama E. Co. v. Doe, 114 U. S. 350, 351, 29 L. ed. 139, 140, 5 Sup. Ct. Eep, 869; Gue v. Tide Water Canal Co. 24 How. 257, 16 L. ed. 635; People ex rel. Davidson v. Gilon, 126 N. Y. 147, 27 N. E. 282; Ludlow v. Cincinnati Southern E. Co. 78 Ky. 357; Chicago, E. I. & P. E. Co. v. Ottumwa, 112 Iowa, 300, 51 L.E.A. 763, 83 N. W. 1074; Minneapolis & St. L. E. Co. v. Lindquist, 119 Iowa, 144, 93 N. W. 104; Yellow Kiver Improv. Co. v. Wood County, 81 Wis. 554, 17 L.E.A. 92, 51 NT. W. 1006.
    A railroad is an entirety, and cannot be cut up and sold for taxes, in parcels. 2 Eorer, Eailways, 1499, § 14; Detroit v. Detroit City E. Co. T6 Mich. 421, 43 N. W. 447; Hackley v. Mack, 60 Mich. 591, 27 N. W. 871; Applegate v. Ernst, 3 Bush, 648, 96 Am. Dec. 272; Georgia v. Atlantic & G. E. Co. 3 Woods, 434, Fed. Cas. No. 5,351; Porter v., Eockford, E. I. & St. L. E. Co. 76 111. 561; Big Eapids v. Mecosta County, 99 Mich. 351, 58 N. W. 358; Worcester County v. Worcester, 116 Mass. 193, 17 Am. Eep. 159; Polk County Sav. Bank v. State, 69 Iowa, 29, 28 N. W. 416; New York & H. E. Co. v. Morrisania, 7 LIun, 652; Chicago, M. & St. P. E. Co. v. Milwaukee, 89 Wis. 506, 28 L.E.A. 249, 62 N. W. 417; Dunn v. North Missouri E. Co. 24 Mo. 493; Mc-Pheeters v. Merimac Bridge Co. 28 Mo. 467; Schulenburg v. Memphis, C. & N. W. E. Co. 67 Mo. 442; St. Louis Bridge & Constr. Co. v. Memphis, C. & N. W. E. Co. 72 Mo. 664; Knapp v. St. Louis, K. C. & N. E. Co. 74 Mo. 378; Indianapolis & C. Gravel Eoad Co. v. State, 105 Ind. 37, 4 N. E. 319; East Alabama E. Co. v. Doe, 114 H. S. 341, 29 L. ed. 137, 5 Sup. Ot. Eep. 869; Dobbins v. Colorado & S. E. Co. 19 Oolo.-App. 257, 75 Pac. 157; Minneapolis & St. L. E. Co. v. Lindquist, 119 Iowa, 144, 93 N. W. 104; Heman Constr. Co. v. Wabash E. Co. 12 L.E.A. (N.S.) p. 116, note.
    The landowner is never estopped to show jurisdictional defects. Hamilton, Special Assessments, pp. 727, 728.
    
      O. J. Kachelhoffer, for respondent. (Gustav Schuler, W. S. Lauder, John L. Koeppler, of counsel.)
    This suit is not brought for the purpose of impeaching the assessment. The attack upon the assessment is collateral. Hackney v. Elliott, 23 N. D. 373, 137 N. W. 433; Erickson v. Cass County, 11 N. D. 494, 92 N. W. 841; State ex rel. Dorgan v. Fisk, 15 N. D. 219, 107 N. W. 191; McNamee v. Tacoma, 24 Wash. 591, 64 Pac. 791; Jackson v. Smith, 120 Ind. 520, 22 N. E. 431.
    The assessment is valid in all respects. Hackney v. Elliott, 23 N. D. 390, 137 N. W. 433; First Nat. Bank v. St. Joseph, 46 Mich. 526, 9 N. W. 839; Ensign v. Barse, 107 N. T. 338, 14 N. E. 400, 15 N. E. 401; 37 Cyc. 1067.
    This is a collateral attack, and, if the drain commissioners had jurisdiction to make the assessment, then their determination that appellant’s right of way was benefited, cannot be questioned here. Erickson v. Cass County, 11 N. D. 507, 92 N. W. 841; Illinois O. E. Co. v. East Lake Pork Special Drainage Dist. 129 111. 417, 21 N. E. 925; Lake Erie & W. E. Co. v. Cluggish, 143 Ind. 347, 42 N. E. 743; State, Paterson & H. Eiver E. Co., Prosecutor, v. Passaic, 54 N. J. L. 340, 23 Atl. 945; Northern P. E. Co. v. Pierce County, 51 Wash. 12, 23 L.E.A.(N.S.) 286, 97 Pac. 1099 ; Chicago, M. & St. P. E. Co. v. Milwaukee, 148 Wis. 39, 133 N. W. 1120; Chicago, M. & St. P. E. Co. v. Milwaukee, 89 Wis. 506, 28 L.E.A. 249, 62 N. W. 417; Hernán Constr. Co. v. Wabash E. Co. 206 Mo. 172, 12 L.E.A.(N.S.) 112, 121 Am. St. Eep. 649, 104 S. W. 67, 12 Ann. Cas. 630; Chicago & N. W. E. Co. v. Elmhurst, 165 111. 148, 46 N. E. 437; Chicago, M. & St. P. E. Co. v. Janesville, 137 Wis. 7, 28 L.E.A. (N.S) 1124, 118 N. W. 182; Griswold v. Minneapolis, St. P. & S. Ste. M. E. Co. 12 N. D. 435, 102 Am. St. Eep. 572, 97 N. W. 538; Illinois C. E. Co. v. Decatur, 147 H. S. 190, 37 L. ed. 132, 13 Sup. Ct. Eep. 293.
    The right of way is liable to this tax or assessment. Louisville & N. E. Co. v. Barber Asphalt Paving Co. 197 H. S. 430, 49 L. ed. 819, 25 Sup. Ct. Eep. 466; Illinois C. E. Co. v. Decatur, 147 U. S. 190, 37 L. ed. 132, 13 Sup. Ct. Eep. 293; Baltimore & O.- & C. E. Co. v. Ketring, 122 Ind. 5, 23 N. E. 527; Lake Erie & W. E. Co. v. Cluggish, 143 Ind. 347, 42 N. E. 743; Eich v. Chicago, 152 111. 18, 38 N. E. 255 ; Illinois C. E. Co. v. East Lake Pork Special Drainage Dist. 129 111. 417, 21 N. E. 925; Drainage Com’rs v. Illinois C. E. Co. 158 111. 353, 41 N. E. 1073; State, Paterson & H. Eiver E. Co., Prosecutor, v. Passaic, 54 N. J. L. 340, 23 Atl. 945; Northern P. E. Co. v. Pierce County, 51 Wash. 12, 23 L.E.A.(N.S.) 286, 97 Pac. 1099; Louisville & N. E. Co. v. Barber Asphalt Paving Co. 116 Ky. 856, 76 S. W. 1097, affirmed in 197 U. S. 430, 49 L. ed. 819, 25 Sup. Ct. Eep. 466; Chatham County v. Seaboard Air Line E. Co. 133 N. C. 216, 45 S. E. 566; Northern P. E. Co. v. Seattle, 46 Wash. 674, 12 L.E.A.(N.S.) 121, 123 Am. St. Eep. 955, 91 Pac. 244; Eev. Codes 1905, § 4702.
    A railroad right of way is property, and the statute provides that “railroad” property shall be assessable. Hernán Constr. Co. v. Wabash E. Co. 206 Mo. 172, 12 L.E.A.(N.S.) 112, 121 Am. St. Eep. 649, 104 S. W. 67, 12 Ann. Cas. 630; Northern P. E. Co. v. Seattle, 46 Wash. 674, 12 L.E.A.(N.S.) 121, 123 Am. St. Eep. 955, 91 Pac. 244; Brookings v. Natwick, 22 S. D. 322, 18 L.E.A. (N.S.) 1259, 117 N. W. 376, 17 Ann. Cas. 1254; Lake Erie & W. E. Co. v. Walters, 9 Ind. App. 684, 37 N. E. 295; Schaghticoke Powder Co. v. Greenwich & J. E. Co. 183 N. Y. 306, 2 L.E.A.(N.S.) 288, 111 Am. St. Eep. 751, 76 N. E. 153, 5 Ann. Cas. 443; Adams v. Grand Island & W. C. E. Co. 12 S. L>. 424, 81 N. W. 960; McLean County v. Bloomington, 106 111. 209; Metropolitan E. Co. v. Macfarland, 20 App. D. C. 421.
    If the assessment is valid, then no question of estoppel can be involved. Hackney v. Elliott, 23 N. D. 373, 137 N. W. 433; Erickson v. Cass County, 11 N. D. 494, 92 N. W. 841; Turnquist v. Cass County, Drain Comrs. 11 N. D. 514, 92 N. W. 852; Alstad v. Sim, 15 N. D. 629, 109 N. W. 66; Earr v. Detroit, 136 Mich. 200, 99 N. W. 19.
   Bruce, J.

(after stating the facts as above). The objection of the appellant goes directly to the jurisdiction of the drainage board to make any assessment, or at any rate to create any lien, against the right of way of the defendant company. It is that the alleged lien is void for the reason that special assessments for a local improvement of the kind in question cannot be made against a right of way or easement of a railroad company, and especially of one which is interstate in its character. It is argued that any sale which must necessarily be had to enforce such a lien would be the sale of a fragmentary portion of the roadbed, which would not only disrupt the road and prevent the public service which the company was created to furnish, but would and could furnish to the purchaser no right or interest, as the land could only be used as a railway right of way, and without legislative sanction and permission no such right of user exists. It is claimed that such a proceeding would violate both the Federal Constitution and the 14th Amendment thereto, and is not contemplated by chapter 23, Eev. Codes 1905. It is claimed that chapter 23 only contemplates the taxation of property in which the fee exists in the person sought to be charged.

The portions of the statute which appear to be pertinent are as follows: Section 1818: “Water courses, ditches and drains for the drainage of sloughs and other lowlands may be established, constructed and maintained in the several counties of this state whenever the same shall be conducive to the public health, convenience or welfare under the provisions of this chapter. The word ‘drain’ when used in this chapter shall be deemed to include any natural water course opened, or proposed to be opened, and improved for the purpose of drainage and any artificial drains constructed for such purpose.” Section 1821: “A petition for the construction of a drain may be made in writing to the board of drain commissioners. If among the leading purposes of the proposed drain are benefits to the health, convenience or welfare of the people of any city or other municipality, the petition shall be signed by a sufficient number of the citizens of such municipality or municipalities, to satisfy the hoard of drain commissioners that there is a public demand for such drain. If the chief purpose of such drain is the drainage of agricultural, meadow, grazing or other lands, the petition shall be signed by at least six or more freeholders whose property shall be affected by the proposed drain.” Section 1826: “Upon acquiring the right of way, if the assessment of benefits has not already been made under the provisions of § 1824, the board of drain commissioners shall assess the per cent of the cost of constructing and maintaining such drain, and of providing the right of way therefor, which any county, township, city, village or town shall be liable to pay by reason of the benefits of such drain to the public health, convenience, or welfare, and which any railroad company shall be liable to pay by reason of benefits to accrue to its property, and which any lot, piece or parcel of land shall be liable to pay by reason of benefits to accrue thereto, either directly or indirectly, by reason of the construction of such drain, whether such lands are immediately drained thereby, or can be drained only by the construction of other and connecting drains, but such assessment shall be subject to review by the commissioners as hereinafter provided.” Section 1831: “The board of drain commissioners shall make a list showing the amount wbicb each municipality and lot or tract of land benefited by tbe drain for which tbe tax is levied is liable to pay on account of procuring tbe right of way or tbe construction of any drain, or both according to tbe per cent wbicb by § 1826 it is required to fix and determine, a copy of which shall be served on tbe clerk or auditor of each municipality against wbicb taxes are to be assessed. Such list shall thereupon be filed in tbe office of the county auditor of tbe county in wbicb tbe municipalities and lands benefited by tbe drain are situated, and tbe auditor shall thereupon extend upon tbe tax lists as a special tax as provided by law tbe several amounts shown by tbe drain commissioners’ list, specifying in such tax lists tbe particular drain for tbe construction or procurement of tbe right of way of wbicb tbe special tax is assessed, wbicb special tax shall be collected and enforced in tbe same manner as other taxes. When such special tax is for tbe right of way tbe same shall when collected be paid by tbe county treasurer into court for tbe benefit of the owners of tbe right of way. And tbe common council, or other proper taxing authorities of each city, or other municipality, against which such assessment is made as aforesaid, shall include in tbe first general tax levy thereafter made in said city or municipality, tbe amount so assessed against it, by tbe board of drain commissioners, and tbe same shall be extended upon tbe tax lists of tbe county for tbe current year by tbe county auditor against all tbe taxable property in such city or municipality in tbe same manner and with tbe same effect as other taxes are extended.” Section 1832: “The drain taxes shall be collected by tbe county treasurer and all moneys so collected shall be credited to tbe drain fund to wbicb they belong and the county treasurer shall be tbe treasurer of such drain funds. Payment of all expenses and costs of locating and constructing any drain shall be made by tbe board of drain commissioners issuing warrants in such amounts and to such persons as by such board may be found due. All warrants drawn by such board in payment for tbe right of way or construction of any drain shall be payable from tbe proper drain fund and shall be receivable for tbe taxes levied for tbe right of way or construction of such drain by tbe treasurer. All such warrants after presentation to the county treasurer for payment, if not paid for want of funds, shall be registered by tbe county treasurer and thereafter shall bear interest at the rate of 7 per cent per annum.” Section 1837: “Drains may be laid along, within tbe limits of or across any public road, and when so laid out and constructed or when any road shall thereafter be constructed along or across any drain it shall be the duty of the board of county commissioners, or township supervisors, as the case may be, to keep the same open and free from all obstructions. A drain may be laid along any railroad when necessary, but not to the injury of such road, and when it shall be necessary to run a drain across a railroad it shall be the duty of such railroad company, when notified by the board of drain commissioners to do so, to make the necessary opening through said road and to build and keep in repair suitable culverts or bridges.”

There is much to be said in support of the contention of appellants. Railroads are quasi public institutions. They have the right to make a reasonable profit on the investment which they represent. The state, on.the other hand, has the power to regulate rates when that profit becomes excessive. It is clear that no profit can be made until the operating and fixed charges are met, and the higher the operating and fixed charges, the higher the rates will be that must be charged in order to make a fair return upon the investment. Special assessments, in fact all taxes, must indirectly increase the cost of operation and raise the point from which the profit begins, as well as the point at which the state is entitled to regulate the charges. They must, in fact, mean higher rates to the public. The first question is, Can local improvements which are for the immediate benefit of the locality merely, and the cost of which can be assessed upon adjacent property merely upon the theory of actual benefit, be imposed, when the cost thereof must ultimately be borne by the people as a whole ? The second is, Can such taxes be made a lien upon a right of way, the sale of which may seriously interrupt the operation of the road ?

The answer to the first question, to our mind, revolves entirely around the question of benefits. Local and general taxes may be imposed upon railway property because they both help to develop and to assure governmental and police protection to the territory through which the link of the road runs, and because the link is a part of a continuous whole and its police protection is necessary to that whole. Such taxes are valid even when levied upon the property of railroads, which are interstate in their nature. A distinction, in fact, is drawn between a tax upon property which is used in interstate commerce or the instrument tality of commerce, wbicb is valid, and a tax upon the act of interstate commerce which is not. 7 Cyc. 478, 480; Cleveland, C. C. & St. L. R. Co. v. Backus, 154 U. S. 439, 38 L. ed. 1041, 4 Inters. Com. Rep. 677, 14 Sup. Ct. Rep. 1122, 133 Ind. 513, 18 L.R.A. 729, 33 N. E. 421; Philadelphia & R. R. Co. v. Pennsylvania, 15 Wall. 232, 21 L. ed. 146; Adams Exp. Co. v. Ohio State Auditor, 165 U. S. 194, 41 L. ed. 683, 17 Sup. Ct. Rep. 305. The same rule applies to local drainage assessments. If they are in fact of any benefit to the railroad, and this is conceded by the record in the case at bar, in other words, if they tend to make the track and roadbed more secure, or, in extreme cases, to prevent the loss of health to passengers and employees incident to miasmal swamps, they benefit the railroad as a whole and the state as a whole. We are not inclined to hold with the appellants that the only measure of benefits is an increased selling price, and as a purchaser can hardly be had for a link in a railroad right of way, and that as such sale should, if possible, be avoided, that no benefits can accrue. The railroad in fact, though not always holding a fee, has a beneficial use extending at its almost unlimited option over a long period of years, and an increase in the value of the use or a decrease in the cost of operation and maintenance are certainly benefits.

Even without a legislative expression upon the subject, there is much authority in support of the validity of an assessment such as that before us. See Louisville & N. R. Co. v. Barber Asphalt Paving Co. 116 Ky. 856, 76 S. W. 1097, 197 U. S. 430, 49 L. ed. 819, 25 Sup. Ct. Rep. 466; Northern P. R. Co. v. Seattle, 46 Wash. 674, 12 L.R.A. (N.S.) 121, 123 Am. St. Rep. 955, 91 Pac. 244; Rich v. Chicago, 152 Ill. 18, 38 N. E. 255; Illinois C. R. Co. v. East Lake Fork Special Drainage Dist. 129 Ill. 417, 21 N. E. 925; Drainage Com’rs v. Illinois C. R. Co. 158 Ill. 353, 41 N. E. 1073; State, Paterson & H. River R. Co., Prosecutor, v. Passaic, 54 N. J. L. 340, 23 Atl. 945; Northern P. R. Co. v. Pierce County, 51 Wash. 12, 23 L.R.A.(N.S.) 286, 97 Pac. 1099.

The law in fact is summed up by Judge Elliott in his work on Bail-roads in § 7866, as follows: “There is a conflict in the adjudicated cases as to whether or not the right of way of a railroad company is subject to local assessments. The question has been discussed in a great number of instances, and different conclusions reached in apparently similar cases. The latest authorities, . . . however, recognize what we believe to be the true rule, and that is, . . . where the right of way receives a benefit from the improvement for which the assessment is levied, and there is no statute exempting the railroad company from local assessments in clear and unequivocal terms, it is subject to assessment.”

It is not indeed for us to establish the public policy in this matter. It has been announced by the legislature, and the action of that body, in the absence of some constitutional prohibition, must be conclusive upon us. This is not a case where the court is called upon to construe or to enforce some private contract, concerning which no public policy has been announced. It is a case in which it is asked to set aside a statute which itself expresses the public policy of the state, merely because its conception of what a sound public policy may be differs from that of the legislative body. This it cannot do. In the announcing of the rules of public policy, indeed, the courts are the third and weakest link in the governmental triumvirate. Public policy, in short, is public policy. Its highest expression is to be found in a constitutional provision which expresses the will of the sovereign people, and which, being voted upon by the whole public, announces a policy which is truly public, both in its origin and in its expression. Where there is no constitutional provision upon the subject, the next highest expression is that offered by a statute which expresses the public will or policy as construed by the legislative representatives of the people, whose determination, in the absence of a constitutional prohibition, must of necessity be controlling. The third factor in the chain is the supreme court. It, however, has no power to command or to create, but merely to construe. It, in short, announces and can announce no public policy of its own, but merely what it believes to be the policy of the people as a whole, and where the people have spoken it must be controlled by their decisions.

That the public has spoken in the case before us admits of no questioning. Section 1826, of the Code of 1905, is indeed capable of but one construction. It expressly provides that “upon acquiring the right of way, if the assessment of benefits has not already been made under the provisions of § 1824, the board of drain commissioners shall assess ■ the per cent of the cost of constructing and maintaining such drain, and of providing the right of way therefor, which any county, township, city, village or town shall be liable to pay by reason of the benefits of such drain'to the public health, convenience, or welfare, and which any railroad company shall be liable to pay by reason of benefits to accrue to its property, and which any lot, piece or parcel of land shall be liable to pay by reason of benefits to accrue thereto, either directly or indirectly, by reason of the construction of such drain, whether such lands are immediately drained thereby, or can be drained only by the construction of other and connecting drains, but such assessment shall be subject to review by the commissioners as hereinafter provided.”

It is idle for counsel to argue .that the legislature could only have intended depot or similar lands, the sale of which would not interfere with the operation of trains, for the act is not'only clearly a rural as opposed to an urban or city and village act (see Stoltze v. Sheridan, post, 194, 148 N. W. 1), but nine depots out of every ten are construct? ed within the limits of the original right of way, and must often be moved if additional tracks are to be laid.

Nor does the fact that a sale of the right of way would perhaps be necessary as a last resort, nullify the statute. The uninterrupted performance by the railroad company of the public functions for which it was created may indeed be of great importance to the state and to the community; but the legislature may nevertheless deem that the collection of its taxes and a universal obedience to the supremacy of the law may be of more importance still. 37 Cyc. 842; St. Louis, I. M. & S. R. Co. v. Miller County, 67 Ark. 498, 55 S. W. 926.

There can, indeed, also be little difference between levying upon a right of way and levying upon a locomotive engine, which latter act is often done and generally held to be permissible. Both acts might equally interfere with and cripple the operation of the road.

In the case of Heman Constr. Co. v. Wabash R. Co. 206 Mo. 172, 12 L.R.A.(N.S.) 112, 121 Am. St. Rep. 649, 104 S. W. 67, 12 Ann. Cas. 630, the matter and contention was disposed of in the following language: “What we do hold is that, under the charter and ordinance, the tax bill sued on in this case is a lien against that part, of the right of way of the defendant company described in the tax bill. We do not feel called upon to determine -how such judgment can be enforced. . . , As a general rule, ‘where there is a right there is a remedy/ . . . and this case we think forms no exception to the rule.” See also Metropolitan R. Co. v. Macfarland, 20 App. D. C. 421; McLean County v. Bloomington, 106 Ill. 209. The situation, indeed, is not as serious as counsel for appellant would have us believe. If the assessment is a valid one and benefits are in fact conferred (and the company has 'all of the remedies and means of contesting invalid and illegal assessments that has any other property owner), it is its duty to pay the same without putting the county to the necessity of selling the land. Its paramount duty is to operate its line. The state’s paramount duty is to enforce its laws and its judgments.

We have next to determine whether the act violates the provisions of either the 14th Amendment to the Federal Constitution or the 3d, or so-called Commerce Clause, of § 8 of article 1 of that instrument, when it is sought to be applied to interstate lines.

The first point was suggested but not argued by counsel for appellant, and needs no consideration here. It is sufficient to say that the state, in the main, can establish its own due process of law, and that if the state has the right to levy the assessment at all, and the legislature intended that it should be levied, there is in the act no violation of property rights nor of the day in court and equal protection of the laws which the 14th Amendment guarantees. The argument of counsel indeed is based not upon any theory of private property, but of public rights only. He insists that the railroad company has no fee in the land, but merely a right to pass thereover in the performance of a public service; and it is on the premise that a levy upon and sale of a section of the right of way would interfere with this public service that his whole argument is based.

We are not unmindful of the cases as cited by counsel for appellant. In none of them, however, was there a statute similar to our own and in which the legislative intention was clearly expressed that railroads should be subject to their operation. They were cases, indeed, in which the courts were left to infer what the legislative policy in relation to railway property might be, and this by a construction of general words merely. So, too, most of them were cases of assessments for pavements, sidewalks, or sanitary sewers which could not possibly benefit the right of way or render the operation of the road any safer or easier. See Mt. Pleasant v. Baltimore & O. R. Co. 138 Pa. 365, 11 L.R.A. 520, 20 Atl. 1052; Chicago, R. I. & P. R. Co. v. Ottumwa, 112 Iowa, 300, 51 L.R.A. 763, 83 N. W. 1074; Boston v. Boston & A. R. Co. 170 Mass. 5, 49 N. E. 95; Detroit, G. H. & M. R. Co. v. Grand Rapids, 106 Mich. 13, 28 L.R.A. 793, 58 Am. St. Rep. 466, 63 N. W. 1007; South Park Comrs. v. Chicago, B. & Q. R. Co. 107 Ill. 105; Chicago, M. & St. P. R. Co. v. Milwaukee, 89 Wis. 506, 28 L.R.A. 249, 62 N. W. 417; State ex rel. St. Paul City R. Co. v. District Ct. 31 Minn. 354, 17 N. W. 954; Seattle v. Seattle Electric Co. 48 Wash. 599, 15 L.R.A. (N.S.) 486, 94 Pac. 194; Koons v. Lucas, 52 Iowa, 177, 3 N. W. 84; O’Reilley v. Kingston, 114 N. Y. 439, 21 N. E. 1004.

A surface-water drain, indeed, which like the one in the case at bar, drains swamp lands along a right of way, is materially different from a sidewalk or pavement or a sanitary house sewer. The first may benefit the right of way by preventing its erosion. The others cannot possibly be of any advantage to it, except as they add to the general health and prosperity of the localities through which the road passes. In the case at bar the trial court found that the right of way was “in fact materially and substantially benefited” by the drain, and no appeal was taken from this determination but on questions of law and of law alone. The question of benefits, therefore, is answered in the affirmative, and is established.

We fully agree with the supreme court of Massachusetts that a tax for local improvements upon a public-service corporation will usually be ultimately borne by the people of the whole state in the form of increased tariffs and charges, and that in the absence of a clear intimation in the statutes to the contrary, no such burden should be deemed to have been intended to be imposed. Boston v. Boston & A. R. Co. 170 Mass. 95, 49 N. E. 95. Where, however, the legislature has clearly spoken upon the subject, as it seems to have in the statute here under consideration, we cannot hold that the legislature did not assume the risk, and did not have the right to do so. The words of the statute, “by reason of the benefits of such drain to the public health, convenience, or welfare, and which any railroad company shall be liable io pay by reason of benefits to accrue to its property, and which any lot, piece or parcel of land shall be liable to pay by reason of benefits> to accrue thereto, either directly or indirectly, by reason of the construction of such drain, whether such lands are immediately drained thereby, or can be drained only by the construction of other and connecting drains ” are so sweeping and comprehensive that we cannot ignore them. Even without a legislative expression upon the subject, there is much authority in support.of the validity of an assessment such as that before us. See Louisville & N. R. Co. v. Barber Asphalt Paving Co. 116 Ky. 856, 76 S. W. 1097, 197 U. S. 430, 49 L. ed. 819, 25 Sup. Ct. Rep. 466; Northern P. R. Co. v. Seattle, 46 Wash. 674, 12 L.R.A. (N.S.) 121, 123 Am. St. Rep. 955, 91 Pac. 244; Baltimore & O. & C. R. Co. v. Ketring, 122 Ind. 5, 23 N. E. 527; Lake Erie & W. R. Co. v. Cluggish, 143 Ind. 347, 42 N. E. 743; Rich v. Chicago, 152 Ill. 18, 38 N. E. 255; Illinois C. R. Co. v. East Lake Fork Special Drainage Dist. 129 Ill. 417, 21 N. E. 925; Drainage Comrs. v. Illinois C. R. Co. 158 Ill. 353, 41 N. E. 1073; State, Paterson & H. River R. Co., Prosecutor, v. Passaic, 54 N. J. L. 340, 23 Atl. 945; Northern P. R. Co. v. Pierce County, 51 Wash. 12, 23 L.R.A. (N.S.) 286, 97 Pac. 1099; Griswold v. Minneapolis, St. P. & S. Ste. M. R. Co. 12 N. D. 435, 102 Am. St. Rep. 572, 97 N. W. 538; Illinois C. R. Co. v. Decatur, 147 U. S. 190, 37 L. ed. 132, 13 Sup. Ct. Rep. 293; Wabash Eastern R. Co. v. East Lake Fork Special Drainage Dist. 134 Ill. 384, 10 L.R.A. 285, 25 N. E. 781.

The judgment of the District Court is affirmed.  