76 Mo. 470 | Mo. | 1882
Lead Opinion
This is a suit to enforce the payment of a special tax assessed against a lot of the defendants, in the city of St. Louis, which, as alleged, is especially benefited by certain improvements, authorized by the city under its charter, and which assessment, by its charter, is made a lien upon the property so charged. The assessment was made in the coui’se of certain proceedings in the St. Louis circuit court, authorized by its charter for that purpose, and entitled: “ The City of St. Louis, plaintiff, against JD. Signiago et al., defendants.” The provisions of the charter authorizing such proceedings are found in sections 2, 3, 4, 5, 6 and 7 of article 6 of the city charter and are to the following effect: Section 2 provides that the city counselor, in the name of the city of St. Louis, shall apply to the circuit court of the eighth judicial circuit, by petition, setting forth the general nature of the improvement to be made, the names of the owners of the several lots or parcels of land sought to be taken, and praying the appointment of three disinterested commissioners to assess the damages which said owners may severally sustain by reason of the appropriation and condemnation of such real estate by the city for such purpose, to which petition the owners of all such lots or parcels of land embraced in the proposed improvement shall be made parties defendant by name.
Section 3 requires that upon the filing of such petition a summons shall be issued giving such defendants at least ten days’ notice of the time when such petition will be heard.
Section 4 provides that the court, on being satisfied that due notice of the pending of the petition has been given, shall appoint three disinterested commissioners to-assess the damages which the owners of the land may severally sustain by reason of such appropriation.
Section 5 makes it the duty of the commissioners to ascertain the actual value of the land and pieces proposed to be taken, without reference to the projected improve
Section 6 provides that when the commissioners shall have viewed the property and assessed the value and ■damages and benefits, they shall make their return of such :assessments in writing, and under oath, to the circuit court, which shall be filed with the clerk thereof. In making such repoi’t the value and damages allowed to each owner and the benefit assessed against each individual shall be separately stated.
Section 7 provides that the report of said commissioners may be reviewed by the circuit court on written exceptions filed by either party, and the court shall make such order therein as right and justice may require, and may ■order a new appraisement upon good cause shown ; but the hearing of such exceptions shall be summary, and the ■court shall fix a day therefor upon the filing of such exceptions, etc.
The ordinance providing for the manner of collecting the benefits thus assessed is to the effect that the city comptroller shall issue “special tax-bills,” in accordance with• the commissioners’ report, against all parties and parcels of property charged with benefits, and deliver the same to the city collector, who shall for ten days consecutively, by .advertisement in a newspaper, notify all parties interested
Of the petition in the case it is perhaps sufficient to say that it is in due form, and sets out the facts necessary and proper under the requirements of the city charter and,, ordinances thereunder, in order to show the assessment,, declare the lien, issue the special tax-bill, and authorize-the institution of a suit in the name of the city for its collection. The prayer of the petition is, that a decree be entered establishing the amount of said special tax-bill, interest and costs, as a special and first lien against the-property described and orderingits sale to satisfy the amount found to be due as aforesaid.
To the petition the defendants filed the following answer, to-wit: “Defendants, for answer to the petition herein,, say that none of them was at any time a party to the said, proceeding, entitled ‘The City of St. Louis, plaintiff', against D. Signiago et al., defendantsnumbered 46,443 ; that none-of these defendants had any notice of said proceedings at any time during its pendency, and defendants plead and rely expressly upon the fifth amendment to the constitution-of the United States as a bar to the claim made in the petition herein. And having answered, these defendants pray to be hence discharged without day, with their costs.”
The plaintiff demurred to the answer on the ground that it does not state facts sufficient to constitute a defense to the action. The court sustained the demurrer, and the defendants excepted, and declining to answer further a final judgment was rendered for the plaintiff'. The de
The answer, it will be noticed,'puts the defense upon the sole ground that the defendants were not parties to, and had no notice of, the proceedings specified therein at any time during their pendency, and pleads and relies expressly on the fifth amendment to the constitution of the United States as a bar to said claim. The fifth, amendment referi’ed to declares, among other things, that “ no person shall be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use without just compensation.” It is conceded, we believe, to be conclusively settled by the adjudications that the fifth amendment, expressly referred to and relied on, is a limitation of the powers of the federal government and not a restraint on the states. Barron v. Baltimore, 7 Peters 243; Withers v. Buckley, 20 How. 84; Twitchel v. Commonwealth, 7 Wall. 321. But section 1 of the fourteenth amendment to the constitution of the United States, in express terms, places the same restriction on the powers of the states, and the 30th section of the 2nd article of our own constitution is to the same effect. Conceding, therefore, that under this answer the defendants may avail themselves of any and all constitutional objections, wherever found, to the validity of the city charter, or any of its provisions, in this particular, we proceed in the first place to consider the question thus presented, so far as the same, in our opinion, properly arises on this record, or is material to the case.
In proceedings of this sort it is conceded to be the settled law of the State that the general assembly, in the . exercise of the right of eminent domain, may authorize private property to be taken for such local public improvements as the opening of streets, etc., and that the assessment of benefits against the owner of property not taken
The text writers and adjudged cases, it must be confessed, are not in entire harmony upon all these questions, or perhaps any of them. Cooley, in his work on Taxation, lays down the doctrine very broadly that notice of proceedings m such cases and an opportunity for a hearing
In the late case of Stuart v. Palmer, 74 N. Y. 183; s. c., 30 Am. Rep. 289, the court holds that “ a law imposing an assessment for a local improvement, without notice to, and a hearing, or an opportunity to be heard, on the part of the owner of the property to be assessed, has the effect to deprive him of his property without due process of law” and is unconstitutional. “ The legislature may prescribe the kind of notice and the mode in which it may be given, ■but it cannot dispense with all notice.” “ It is not enough that the owner may by chance have notice or that he may, as a matter of favor, have a hearing; the law must require notice and give a right to a hearing.” There are quite a number of other authorities tending to the same effect.
On the other hand there are equally high authorities to the effect that in construing the phrase “ due process of law,” as used in the constitution, reference must be had to the subject matter, to the department of the government in or by which the proceedings are had, together with the nature of its organization and its modes of procedure; that the taxing power is an incident to sovereignty, and its prompt and vigorous exercise vital to the very existence of
This whole matter, as well as the origin and history of the phrase in question, was very fully considered and elaborately discussed in the case of Murray’s Lessee et al. v. Hoboken Land & Improvement Co., 18 How. (U. S.) 272,' where it was held that “ a distress warrant issued by the solicitor of the treasury under the act of congress passed on the 15th day of May, '1820, is not inconsistent with the constitution of the United States; that it was an exercise of executive and not judicial power, according to the meaning of those words in the constitution; and that neither is it inconsistent with that part of the constitution which prohibits a citizen from being deprived of his lib
In the still more recent case of Davidson v. New Orleans, 96 U. S. 97, the same court, speaking through Justice Miller, after considering at length the origin and history of this provision of the constitution, as found in Magna Charta and in the fifth and fourteenth amendments to the constitution of the United States, suggests the difficulty and danger of attempting an authoritative definition of what it is for a state to deprive a person of life, liberty or property 44 without due process of law” within the meaning of the fourteenth amendment; and holds that the enunciation of the principles which govern each case as it arises is the better mode of arriving at a sound definition.
In this view we concur, and shall make no such attempt; but will be content, if we are able, to determine and announce correctly the principles governing this case. Indeed, we are of opinion that the case can be properly disposed of upon its merits without deciding that question. We may go even further and say that the question does not properly arise on this record when carefully considered. We may concede, without deciding, that it is competent for the legislature in .the legitimate exercise of the taxing power, through its own proper administrative officers, to provide for the assessment and collection of its
The judiciary, as we all know, is accustomed to proceed, in all its final and authoritative adjudications, upon due notice, either actual or constructive, and after some opportunity to be heard has been given ; and without such notice and opportunity its most solemn decrees and judgments are everywhere held to be without any binding or conclusive effect, and for most purposes absolutely void. Eor such a position, we imagine, no citation of authorities is necessary. This law of their power and jurisdiction is fundamental, and from it they never depart. Even when proceeding in prize cases, admiralty suits for forfeitures, and other suits in rem, where no particular individuals are summoned to answer, they do not depart from this inexorable law of their being. In all such cases “ monition,” a process in the nature of a summons, is always deemed indispensable and is commonly said to be a citation of the whole world. 2 Bouv. Law Dic., 185. This law of judicial power and authority is well understood and recognized by the legislative department in all its enactments, and it. is not to be presumed that it ever assumes or attempts to encroach upon this lawful domain of the judicial department, or to give to the decrees or judgments of its courts a power or effect they themselves could not impart to them. When the legislature thus calls to its aid the judiciary, it is understood to do so subject to the conditions and limitations under which alone the judiciary, by reason of its nature and,constitution, has power to act»
This case is unlike that class of cases where the parties taxed have had some sort of notice and some opportunity to be heard before the final determination thereof; and in which it is commonly, and we think rightfully, held that if the parties fail to avail themselves of the special statutory remedy provided for reviewing such assessments of taxes or benefits, they are concluded thereby from afterward contesting many matters which they might have controverted before said board of review. But even then, the conclusive effect of such assessments and tax-bills is only qualified; they may still defend on the ground that the tax is illegal; that there was no jurisdiction; or, in exceptional cases, that the ordinance, under which the same was done, was unreasonable and oppressive, or the like. Cooley on Taxation, 528, 529; Corrigan v. Gage, 68 Mo. 541. The reason of this difference is they have had their day in court. Not so here. It is not pretended that any notice whatever, or any opportunity to be heard has been given or offered these parties at any period prior to the institution of this suit, except the constructive notification given by the collector that the special tax-bills were in his hands for collection, and if not paid within sixty days would be enforced by legal proceeding. Under the charter and ordinance, this suit (instituted in the name of the city and by its authority) is confessedly the first and only opportu
We conclude, therefore, that it was competent for the defendants in this suit tq have set up and maintained by
It will be remembered that we are here treating of the nature and effect of judicial proceedings in courts of common law jurisdiction, and not of proceedings of officers and tribunals of a purely administrative character. What conclusiveness, qualified or absolute, may have been or should rightfully be accorded to them by the authorities, need not, as before remarked, be here determined. We may add, also, that a number of other questions have been raised by the briefs of counsel, but we have not found in them anything to change the result at which we have arrived. There is, therefore, no error in the judgment of the St. Louis court of appeals affirming that of the circuit court, and its judgment is, therefore, affirmed.
Concurrence Opinion
I concur in affirming the judgment in