Davidson v. Wight

16 App. D.C. 371 | D.C. Cir. | 1900

Mr. Justice Morris

delivered the opinion of the Court:

The principal questions raised by the assignments of error are two: — 1. That of the constitutionality of the act of Congress under which the proceedings have been had; and 2. That of the sufficiency of the notice given to the appellants in respect of the assessments upon their property.

1. With respect to the first of these questions, we think that it has been conclusively determined for us by the decision of the Supreme Court of the United States in the case of Norwood v. Baker, 172 U. S. 269. As we understand that decision, which undoubtedly has the effect of greatly qualifying the previous expressions of the same high tribunal upon the matter of special assessments, the limit of assessment on the private owner of property is the value of the special benefit which has accrued to him from the public improvement adjacent to his property. The Supreme Court by Mr. Justice Harlan said in the case of Norwood v. Baker: “In our judgment, the exaction from the owner of private property of the cost of a public improvement in substantial excess of the special benefits accruing to him is, to the extent of such excess, a taking, under the guise of taxation, of private property for public use without compensation.”

In that case there had been, it is true, a gross and most unjustifiable attempt by the public authorities of a .municipal corporation to take the property of an individual for the purpose of opening a street through it, and thereafter to assess upon his remaining property which abutted on it the whole cost of the property taken and the cost of the condemnation proceedings, — a most shocking case of confiscation and plunder by public authority under the guise of condemnation and taxation. It was an extreme case; but it awakened the courts to a vigorous assertion of the true principle which should govern in all cases of special assessments made for public improvements. And that principle is, as stated in the case of Norwood v. Baker, that the value of the special benefit to the adjacent property from the public improvement, and not the cost of the improvement or any part of such cost as such, is the limitation of assessment upon the property. Necessarily, the cost of the improvement is in itself a limitation beyond which the public authorities can not go in any case; and a proper limit within such limitation beyond which the assessment should not go may well be prescribed by the legislative authority. But it is a logical and necessary consequence from the rule prescribed that the legislative authority may not arbitrarily prescribe a minimum limit below which the assessment may not fall; for the reason that this in itself would be an assessment irrespective of the actual amount of benefit, and the determination of the amount of actual benefit is not a legislative, but a judicial question, upon which the parties in interest are entitled to be heard and to have their day in court.

It is true that, in the enactment in question, the legislative authority recognizes the principle that the assessment is to be made only on property benefited by the improvement, and provides that the assessment shall be made in a judicial proceeding. But it does not leave the question of special benefits to be determined in such proceeding. It arbitrarily finds for itself that the whole adjacent property subject to assessment, or intended to be assessed, will have been specially benefited to the extent at least of one-half of the cost of the improvement; and all that is left to the jury in the judicial proceeding is not to find the value of the special benefit to each adjacent piece of property, but to apportion at least one-half of the cost, and as much more as they may think proper, between the adjacent lots. This, we think, is in direct contravention of the principle enunciated in the case of Norwood v. Baker, and can not be supported as a valid exercise of legislative authority.

2. We are likewise of opinion that there was no due process of law in this case, inasmuch as the assessment against the property of the appellants was made without notice to them and without opportunity on their part to be heard in regard to it, such as they were entitled to have.

In the case of Allman v. District of Columbia, 3 App. D. C. 20, we held that “ seasonable uotice at some serviceable stage of the proceedings is absolutely neeessa^ to the validity of an assessment.” Now, that there was no personal notice or personal service of process on the owners of the Kail tract or any of them at any time before the issue of the order of ratification nisi on September 19, 1899, is conceded, and could not, of course, be reasonably controverted in view of the record before us; and it would be a mere waste of time and words to argue that the notice then given was “ seasonable notice at a serviceable stage of the proceedings.” It then appeared plain that the appellants should have had their day in court, and should have been heard ; but it was too late. The jury, which had been charged with the duty of making the assessment, and before which they were entitled to appear and to adduce their testimony with reference to the only matter of vital importance to them in the proceeding, the value of the special benefit accruing to their property from the public improvement in question, had been discharged; and the privilege which was then accorded of showing why a judgment should not be rendered upon the verdict, is not the equivalent of a proper trial before the verdict. This, as we have' said, is too plain to us to waste words upon it; and it should be said on behalf of the appellees that it has not been contended by them that this notice to the appellants was sufficient.

Neither can we regard the statement of the marshal in his return that the owners of the Kali tract were represented before the-jury, as sufficient evidence of that fact, in view of the distinct and unequivocal denial of it by the persons who were supposed to have appeared as such representatives, and who show conclusively by their affidavits, which are not sought in any manner to be controverted or questioned, that they appeared before the jury as witnesses summoned on behalf of the District of Columbia, and not as representatives of the Kali tract, or of the appellants in this case. And, of course, such appearance can not be construed as a waiver of notice on the part of the appellants. The statement of the marshal was evidently based upon some misapprehension of the facts, and can not be held to be binding upon the parties to the cause.

The reliance of the appellees in this matter of due notice to the appellants is, and in fact their sole reliance must be, upon the order of publication that was issued in the first instance on April 3, 1899, immediately after the filing of the petition, together with the act of Congress itself and the circumstances of that legislation. Now, undoubtedly it is fair to presume that the owners of the Kail tract had some agency in procuring the enactment of the legislation in question; since the proviso that it should become effective only upon their dedication to the public of so much of the land within their tract as was required for the opening of the streets enumerated, implies that representations had been made to Congress on their behalf that such dedication would be made. . And that they were aware that a suit was intended to be instituted for the purpose contemplated by the proceedings now before us, is very clear; since they knew that the statute contemplated and directed such a proceeding, and made it mandatory upon the Commissioners of the District to institute the suit within thirty days after the passage of the act, conditioned only upon the dedication by the appellants, which was promptly made by them. The institution of the suit, in fact, was made dependent upon their act of dedication; and they must have known that the suit would necessarily follow that act. But it is not apparent that they are legally and properly chargeable with knowledge beyond this. They were not made parties to the suit, as they well might have been; they were not notified of its institution; they were not notified of any of the proceedings taken under it, until, as we have said, after the order of ratification nisi was passed ; and we know of no rule of law that would require them to take notice of its pendency and to make themselves parties to it for the protection of their own interest, unless it was incumbent on them so to do by the notice of publication directed to be issued by the order of April 3, 1899. And so ultimately upon the sufficiency of this order of publication to bring the appellants before the court depends the validity of the subsequent proceedings as to them.

In our opinion, there is nothing in the suggestion that the proceedings were directed by the statute to be had in the Supreme Court of the District sitting as a District Court of the United States, and that such process would thereupon be sufficient as was appropriate in a district court, which would warrant the substitution of a notice of publication in the place of personal service of process. The district courts of the United States do not proceed by notice of publication instead of personal service of process, any more than do other courts, except when they act as courts of admiralty; and even then, though their proceedings are substantially in rem, rather than in personam, they can scarcely, in view of the circumstances, be regarded as exceptional. If they were, they would afford no warrant for the present proceeding; for the district court has much other jurisdiction than that of admiralty, in which notice of publication is not to be thought of for a moment as a legal substitute for personal service of process. Notice of publication in modern practice is a purely statutory device to enable the courts of justice to reach property within their jurisdiction when the parties in interest are beyond their jurisdiction and can not be reached by personal process, the oi’dinary common law and inalienable rights of all persons under ordinary circumstances. And when the statute authorizes such extraordinary process it is usually cumulative, dependent upon the previous issue of the ordinary process, the return of that process unserved, and allegation and proof that the party against whom it has been issued is beyond the jurisdiction of the court. But, unless we except the courts of admiralty, we know of no warrant in our system of jurisprudence for the substitution of notice by way of publication in a newspaper in the place and stead of the due process of law, beginning with personal service of notice, which is guaranteed to every individual by the common law and by our Federal Constitution.

We do not mean to say that there may not be cases in which, by the nature of an alleged public improvement, all parties, whose property would be affected by it, would be chargeable with notice of its proposed construction, its incidents and consequences; and in which possibly a general notice by way of publication in a newspaper would be all the notice which the circumstances would reasonably allow or require. These are cases in which all persons interested would naturally be put upon notice. But the present is not such a case.

Here there was nothing whatever to put the appellants, or anyone else, upon notice that their property would be assessed. Neither the appellants nor any other owner of property in the neighborhood could tell with any certainty that their or his property was to be assessed. There was no taxing district fixed by the statute. Whether any such taxing district could arbitrarily have been fixed, in view of the decision in Norwood v. Baker, we need not determine. The statute simply provided that not less than one-half of the amount to be paid for the Tuttle land required for the extension of the proposed streets should be assessed by the jury in the proceedings “against the pieces or parcels of ground situate and lying on each side of the extension of said streets, and also on all or any adjacent pieces or parcels of land which will be benefited by the opening of said streets;” and from this it is very plain that no one could know, in advance of the action of the jury, what property would be declared to be benefited by the proposed extension of the streets. It is impossible even now upon the record to determine upon what theory of benefits the jury proceeded, further than they deemed themselves compelled by the statute to assess the sum of $26,000, which they found to be one-half of the value of the property taken by condemnation, upon the neighboring property, and to find sufficient property to make up that amount. But it is not apparent why they stopped in the middle of the block; and why, for instance, lot 5, in blo'ck 13, in Kalorama, was assessed, and lot 6, in the same block 13, was not assessed, when the difference in benefit to the two is utterly impossible to be appreciated; or why, on the south side of the street, lot 25, in block 12, is assessed, and the immediately adjoining lot 24 is not assessed. This is not said in criticism of the jury, the members of which no doubt acted honestly upon their best judgments. But it shows very plainly the impossibility of the determination by anyone, in advance of the action of the jury, that he was within the area of assessment, and therefore that he was bound by the proceedings under the general notice given by way of publication. The owners of lot 6, in block 12, and of lot 24, in block 13, and of the lots west of them, had just as much reason as their neighbors to the east of them at the time of the institution of the proceedings to suppose that they were within the scope of assessment; and the opportunity to parties to be heard in defense of their rights can not be left to depend on any such uncertainty as is here indicated. Unless it appears very plainly from the notice of publication that the appellants were included in it, and must have known from it that they would necessarily be assessed, we can not see upon what principle of sound reasoning they can be held bound by that notice.

There is nothing in the statute to justify the omission of the ordinary personal notice; nor was there anything in the circumstances of the ease to warrant it. If it was subsequently required by the order of ratification nisi, it must have been upon the ground that it was both proper and necessary. It was then had without difficulty; and there is nothing in the record to suggest that it might not have been had equally well in the first instance. Even if, when the jury had determined that the property of the appellants had been benefited and would be assessed, notice had then been given to them and they had been cited to appear and offer testimony, if any they had, and they could have been heard before the jury upon the question of assessment, it may be that they would have had the due process of law to which they were entitled. That they did not have this due process, we are compelled to hold.

From what we have said it follows, in our opinion, that there was error in the order or decree of confirmation of the award and findings of the jury in this case, and that, as against the appellants, such award and findings were not warranted by law. The order or decree appealed from will therefore be as to them reversed;. and the cause will be remanded to the Supreme Court of the District of Columbia, with directions to vacate as to them such order or decree, and its order of confirmation nisi, and the award and, findings of the jury; and for such other proceedings therein, if any, as may be proper according to law and not inconsistent with this opinion. And it is so ordered.