*1 TERM, 1900. Syllabus. FRENCH v. BARBER ASPHALT PAVING COMPANY.
ERROR TO THE SUPREME COURT OE THE STATE OF MISSOURI. February 498. April Argued
No. 25, 26, 27, 1901. Decided proceeds this case tlie court assumption In the legal import phrase of law” due is the both in the same Fifth and in the Fourteenth Amendments to the Constitution States; the United and supposed it cannot be by was intended the Fourteenth Amend- impose States, ment to on the when exercising powers taxation, their rigid or more stricter imposed curb than that on .the Federal G-ov- by the Fifth ernment Amendment in a power. similar exorcise of It was not intention of the Fourteenth Amendment sys- to subvert tems of the States pertaining general and taxation: that Amend- legitimately operates ment to extend to the and residents of citizens States, protection the same against arbitrary legislation, state affecting life, liberty property, as is the Fifth against afforded Amendment legislation by similar Congress, and the Federal ought Courts not to in- complained terfere when what is of is the enforcement of the settled laws State, applicable persons to all in like' circumstances condi- tions, only law, when some abuse amounting but there is to confisca- n deprivation personal property, rights. tion of or many The conclusions reached this court cases cited and summarized writers, (Cooley the' court in its are thus stated two adopts: major Pillon) part “The whose views this court of the cost of by general tax, por- a local work is sometimes collected while a smaller specially major part levied benefited. The tion is estates is benefited, general public while the taxed sometimes assessed on estates portion participation of a smaller a smaller in consideration the ben- efits. The whole cost in other cases is levied orihands the immediate view, vicinity point of either of of the work. In these constitutional may just, admissible, be and-one sometimes another methods at other cases it be deeihed reasonable to make the other times. levy general charge, and no assessment whole cost a whatever. and, maybe all legislative, legislative'’questions, like that, erroneously; expect decided it is reasonable to with such but lati- just choice, equal tude tax than it would will be mbre be were required levy ifc<by arbitrary pne inflexible rule.” very authority require generally agreed that “The courts are expense property specially benefited, improvements to bear the of local power, taxing is a or included within it. . . . branch of Whether expense improvements paid making gen- shall be out of the FRENCH v. BARBER ASPHALT CO. PAYING of the Case.
Statement property spe- abutting other treasury, assessed eral mode, shall benefited, and, the latter whether assessment if in cially abuttors, benefited, or property found to be alone upon all lots, according is, area of their *2 frontage according to the according to legis- a weight authority, considered to be to the present expediency.” lative 269, considered, held not to be inconsistent Balter, 112 U. S. 'Norwood views. with these of Jackson in the circuit court a suit instituted This was a Missouri, the Barber Paving Company, by County, ’Asphalt to construct whose business it was com-. pavements corporation others, owners French of asphalt, against posed Margaret for the on Forest in Kansas City, of lots avenue pur- abutting of a tax bill city enforcing by issued pose lien cost said avenue. paving part payment The work was done to the of the conformably .. requirements charter, a resolution Kansas City by adoption by council of common the work of city declaring paving and with a street, of defined neces- pavement character, was which resolution first recommended sary, the board of works of the This resolution was city. public thereupon pub- ten lished for days newspaper doing city printing. pf Thereafter the owners of front feet on that majority part to be street had the under the improved right, charter, within after the first thirty days of the day publication to file resolution, a remonstrance with the cleric city against the- improvement, proposed to divest the thereby and. common council of the to make the and such improvement, prop- owners had erty within right, the' by filing same period do, so have such street petition with a different improved kind of material in a different manner from that specified such resolution. In this instance neither such a remonstrance por was filed,and the petition common council, recom- mendation the board of works, enacted an ordinance- n the construction of the requiring The pavement. charter re- that’a contract for such work let quires shall'be to the lowest and best bidder. for bids the work Thereupon were adver- duly tised and the for, plaintiff lowest company, being best TERM,
Statement of the Case. bidder was, a contract therefor, 31,1894, entered into July between Kansas and-the for the construction of City plaintiff said pavement.
The contract that the should be expressly provided paid .work the issuance of tax bills, the provi- according sions of the Kansas charter, City should not city in. event be for or liable on account of the work.' The cost was pavement apportioned the lots charged against thereon the, fronting- method according prescribed by which is that charter, the total cost of the work shall be-appor- tioned and the lands charged against thereon accord- abutting of the several lots or tracts ing frontage of land abutting on the improvement. each lot or tract of charge.against land evidenced a tax .bill. The tax bill representing the assessment each lot was, against charter, made a lien the tract of land which was against isáued, *3 evidence of the ¡prima validity charge represented facie it. Such lien can be enforced suit in a only by court of the owners of competent jurisdiction, the land against charged. No was authorized to be personal judgment rendered against the owner of the land. The was conferred on right expressly the owner of the amount of the reducing recovery by pleading and mistake'or error in the amount of proving any bill, that the work in a was done and workmanlike manner. good
The defendants and contended that the contract of- pleaded fered in evidence was a contract to construct the pavement maintain and the street in for five and was con- keep repair years, to the charter of void trary Kansas' and of no City, and. effect; that the charter of Kansas to authorize the City purports paving and to streets authorize tax bills therefor, charging the cost thereof on the to the front- abutting property according age, reference to on was made and the táx bills charge levied, such method of the cost of the apportioning charging pave- ment to and in contrary of the Fourteenth'Amend- violation ment to the Constitution of the United States. of the circuit court of -judgment Jackson was for County for‘the amount due on the
the'.plaintiff tax company bill and CO. ASPHALT PAYING 327 v. BARBER Opinion of tlie Court. an this appeal the lien. From judgment enforcement
for the on Novem- Missouri, and, Court taken to the Supreme affirmed, court was the circuit 13, 1900, ber judgment was allowed. from this court error a writ thereupon in error. Mr. H. Ess Henry plaintiffs in error. Mr. Edward for defendant Mr. William O.SearrUt Hamilton Mr. Elliott Mr. John K. L. Scarritt, Griffith were on brief. Jones his. delivered the case, after opin- MR. Justice stating
(cid:127) Shiras, of the court. ion Missouri said Court In itb case Supreme charter, ordinance of method adopted “the Forest avenue against the cost of
Kansas
paving
City
charging
had been répeat-
to their frontage
lots
according
adjoining
and such laws
of Missouri,
authorized by
edly
St.
this court in
decisions.
many
the sanction
had received
537;
v.
30 Mo.
Mo.
Anthony,
v.
53
Allen,
44;
Joseph
Louis
St.
v.
It relieve if we may prevent repetition, of our cases that some arose under the out provisions point under those of the Fifth and others the Fourteenth Amendment United States. While the Constitution language same, those amendments were yet they engrafted at different times and in Constitution widely different (cid:127)upon life, national of our be that circumstances questions may in which different constructions and arise of- their applications House Slaughter Cases, Wall. provisions may proper. 36, Davidson said, Orleans, v. New U. S. 97, Thus 103: “ It riot a remarkable little that while this has provision been Constitution of. United as a States, restraint thé of the Federal a cen- authority government, nearly all that while, time, vvhich during tury, mannen have been exercised has been watched powers government *5 v. BARBER ASPHALT PAYING CO. 329
Opinion of the Court. the most to criticism in all subjected rigid with jealousy, limitation has this its branches, powers rarely or the forum more been invoked judicial enlarged theatre But while it has been a of Con- of discussion. part public' of the States, a as a restraint power stitution, only court is docket of this crowded with cases few years, very state hold that courts and asked to state in which we are legis- their, of citizens life, own latures have liberty deprived prop- There is here abundant of law. evi- due process erty exists some of there misconception scope dence that strange found in Fourteenth Amendment. as of this provision of seem, the character cases fact, many would them made in clause before us, arguments is looked as under consideration of means bringing decision the test of the of this court the abstract opinion unsuccessful a state court of the every litigant justice him, decision of the merits of the' against legislation which such a decision be founded.” shall not we
However, define what it is a State attempt of life, without due deprive person liberty or property proc- ess terms cover law, which.would every exercise thus forbidden State, those not, exclude which are but shall case, oh proceed, present assumption ” due legal import phrase law the same process n in both Amendments. it cannot Certainly, that, by supposed the Fourteenth it was Amendment, intended on the to impose States, when their more exercising powers taxation, any rigid curb than that stricter on the Federal imposed government, in.a similar exercise of the Fifth power, Amendment.
Let us, then, as as has been inquire, briefly what possible, court decided as to the effect of the scope phrase “ due law,” process applied legislative power. One of the earliest cases, which was historical examined the of those words, Lesseev. Hoboken legal meaning Murray's La nd 18 How. Company, involved a sale of real made estate under a distress war validity rant, authorized by statute of the United 592, Stat. States, c. á con- collector was. against customs. defaulting It TERM, 1900.
Opinion of tlie Court. the owner tended such a deprived proceeding Fifth law, Amendment, without due contrary *6 a of law” was meant defence, judg- by charge, “process ment before and a constituted court. by question legally was thus Mr. ustice Curtis: stated J “ That the warrant now is not process question legal denied. It was issued'in act of with an conformity Congress. But is it ‘due of law ?’ contains The Constitution no process of those to allow which intended description was processes forbid. It does not even are to be declare what ap- principles to ascertain whether it be It manifest that plied due process. left was not to enact any power legislative process which be devised. The article is a restraint might leg- islative as well as on the executive and of the powers judicial and cannot be so construed as leave government, Congress ’ ‘ free to make due of law mere will. any process process To what we to resort ascertain then, are whether principles, enacted is due To process,' this the by Congress, process? answer must be twofold. must We examine Constitution ' be in whether this with itself, to see conflict of its process If not found be we to. so, must look those settled provisions. and modes of in the common and
usages proceeding existing statute law of before our emigration ancestors, England, not been and are shown to have unsuited their civil ( and condition been acted on them after political by having settlement this country.” the lines of thus the court reached indicated,
Pursuing inquiry the conclusions and that, ascertaining enforcing payment taxes and of balances due from receivers of the revenue in Eng- the methods the usual land, have varied from course of widely the common law on and as other that, subjects, respects “law debts, the of the land” authorized the employment and an a auditors, notice, ex- species inquisition amination a close resemblance to warrant bearing very distress in the act of that this ; Congress question diversity in the law the land revenue defaulters between ordinary debtors was understood in this and entered into the country, more colonies and legislation provinces, especially BARBER ASPHALT PAYING CO.
Opinion Court. after the Declaration of States, before Independence of the Constitution of the United States; formation of distress in universal nearly process quite only but what was taxes, use for termed the collection generally body, warrant distress, running against goods issued to chattels of money, receivers public defaulting, committed the some to whom was officer, as- such warrant certain the amount of and by proceed the default, warrant to collect it;' that, accordingly, distress of the Constitu- was not inconsistent with part question of his tion which deprived prop- citizen being prohibits without due of law. erty
In Walker v. Sauvinet, U. S. there was presented whether the Fourteenth Amendment to secure availed ato citizen of of trial Louisiana right against,an jury *7 act of that State in certain that, circumstances, provided a case should it be .tried the and enforcing penalties by judge; “ was held that the so far as this States, is concerned, amendment are left to trials in their own courts their' own regulate way. A trial in suits of common by jury law pending'in state courts-is not, therefore, or privilege of national immunity which the States are citizenship forbidden by Fourteenth Amendment to A cannot abridge. deprive person S£ate his without due property but law, process this does not that all trials in necessarily, imply state courts affecting must be persons by This jury.' of the requirement Constitution is met if the trial is had to the settled according course of judicial Lessee proqeedings. v. Hoboken Murray’s Land 18Co., How. 272, Due of law is ac process process to the law of the land. cording This in the States process reg ulated State. Our over that law is only l^w to determine whether it is in conflict with law of supreme the land—that is to with the Constitution and say, laws United States made in thereof—or with pursuance any treaty made under the of the' United States. Here authority state court decided has that the below was in ac proceeding cordance with the law of the State; we do not find that to be to the Constitution or contrary law or any treaty United States.” TERM, 1900.
'1332 Opinion of Court. 95 U. S. was a Anderson, 37, McMillen case wherein of a law of the involved State validity Louisianá, a tax collector was authorized' to. seize whereby it in sell order to enforce of a Which license tax, payment to be of the Fourteenth alleged opposed provision Amendment of the Constitution which declares that no State life, shall without or any person due deprive liberty but was said law; process court: at the Louisiana statute here we feel bound Looking assailed, if it is void bn the say assumed the revenue laws ground all the States of.-nearly for the same reason. will be found void The mode of States, taxes Federal assessing gov- ernment, all is necessarily governments, summary, bemay and effectual. is not speedy meant By summary or arbitrary, must, It under our Constitu- unequal, illegal. done. does not nor tion, But that does lawfully mean, ’ ‘ due of law mean, phrase proceeding. by judicial ’ ‘ nation from whom we inherit due of law .process phrase courts for the collection her relied upon justice has never revolution re- she a successful passed through taxes, though into the' We need not here go taxation. to unlawful sistance because view any provision, constitutional of that literature under consideration does not the statute itof that can be taken or fail shall refuse when that, person It enacts violate it. ten shall days’ collector give written tax, license pay-his payment, to the delinquent-.requiring notice printed If at the this- notice fully prescribed. the manner giving tax col- time the license fully paid, of this expiration to seize sell, formality, proceed lector judicial may, *8 of the delinquent advertisement, after ten days’ . . . tax and costs. much as be necessary so pay to. officer, assessed, by proper is a notice that Here party-is and ten time kind, days’ tax of a certain for a as a sum given ? of not a mode proceeding it. Is him to legal given pay of this to the validity that it is essential It seems to .'besupposed' had an been have should present, tax that the charged party when he was assessed. in some tribunal to be present, opportunity to considered necessary has been, and never But this not, v. BARBER ASPHALT CO. PAYING Opinion of the Court. of now fact that most the States a And the tax.
validity n that tax assessments does revisors prove have boards void.” them are without taxes levied an was a case wherein 97, 96 U. S. Orleans, v. New
Davidson Orleans for estate in-New draining of certain real assessment courts, resisted the state was that city swamps this court on the was writ of error ground by brought without due of his the owner deprived proceeding of this of law. The history provision process origin and in the Fifth and Oharta, as found Constitution, Magna .were consid Constitution, Amendments to the again Fourteenth Land 18Co., the cases of Lesseev. Hoboken ered ; Murray’s 95 U. S. were cited Anderson, 37, How. McMillen 272, “ .and neither the it was held that corporate approved; the work was done, excessive which by agency price the statute allowed nor therefore, relative importance work to the value of the land nor assessed, the fact that the as sessment'was made before the work was nor that done, the as sessment is as' the benefits unequal nor regards conferred, are rendered for the amount personal judgments are assessed, matters which the authorities controlled state Fed eral Constitution.” v. United Springer 102 U. S. States, 586, involved the of an
validity .30, June c. Congress,- 1864, act 172, Stat. lands of A whereby were distrained and sold reason of his refusal to a tax pay assessed and it was con against him, tended that the sale of defendant’s real estate, the tax satisfy assessed him, manner, without first summary having obtained a in a court judgment was a law, to de proceeding the defendant of his prive without due process law; “ of law” due.process meant law in its course regular of administration the courts of and not the justice, execution of a vested in ministerial officers. But this court, after Lesseev. citing Murray’s Hoboken Land as Co., that holding .pf act Congress warrant to authorizing issue, oath, against public debtor, for the seizure his property, valid, and that the was due proceeding law,” said: “ The prompt payment- taxes is always important *9 TERM, 334 Opinion of the Court. It be vital to the existence of a welfare. govern- to the ment. The idea every taxpayer delays entitled If is unreasonable. the laws here in in- litigation or it for harshness, volved unnecessary any wrong Congress, or who to see that the evil was cor- congresses, make people not lie with rected. The does branch of the remedy judicial government.” Amend-, In Missouri v. U. the Fourteenth Lewis, S. 22, ment was invoked of the State°of Mis legislation invalidate of writs of souri, error, and and regulating right appeal in the courts and certain suitors Louis other St. whereby named counties were denied the right appeal Supreme Missouri in Court of cases to suitors where gave right for the courts other the State. counties,of Speaking Justice .court, Mr. said: Bradley “ the. Amendment.has correct', position If Fourteenth than been IN more effect has much far-reaching supposed. a limitations of based on the invalid all jurisdiction render would A a claim of the demand. having character party or .amount with complain five dollars equal propriety for only could other because he citizens, enjoyed he is right deprived cannot, and another courts; might it in the superior prosecute for real estate in cannot suit that he bring equally-complain is small proceedings where expense court, justice’s between no difference principle There are expeditious. courts'and jurisdiction as.these discriminations such of in the in error complains present that which plaintiff case. take into view objects pur- we however, general If, no reasona- find we shall Amendment, of the Fourteenth poses are to These application. any ble giving ground naturalized, to all natives and States extend United citizenship their from the States privi- and to abridging prohibit persons, ’of life, depriving person leges immunities and from law, due deny- liberty protection within their equal jurisdiction any person ing classes of persons. laws. It or the contemplates persons that do regulations to local and has not municipal respect It v. BARBER PAYING ASPHALT CO. Opinion of the Court. between classes persons affect discriminate
not injuriously *10 or for which such within municipalities places of persons amendment could never have been made. The are regulations and out a State arranging parcelling intended prevent courts at its discretion. . . . several the jurisdiction make subdivisions of its political State has right Each and to their local regulate for purposes, territory municipal in If residing ... every person being government. be accorded should of the State equal protec- either portion could not there, he of the laws justly complain tion prevailing to. as.before, clause referred it For, said, a violation of. arid classes of It means that no has persons. persons respect shall denied same be, or class persons protection person other or other classes laws which enjoyed by persons in like circumstances. The Fourteenth in the same place to secure to all in does not Amendment profess persons of the same and the the-benefit laws same reme- States United in these exist in two Great diversities States dies. respects may line.” only by imaginary separated v. District U. Columbia, 687, In S. there Mattingly 692, called in the act of
was the'validity Congress 20 Stat. c. entitled “An act 19, 1878, 166, 309, to provide June. the revision and correction assessments for im- for and for the District Columbia other purposes,” provements this court, Mr. Justice was said by through Strong: laid be that the burden of the com- It may assessments for is onerous. road or Special plainants often are But that very street oppressive. improvements authorize direct them, them to taiay legislative power ,of to the area or market value be made frontage, proportion at its under the discretion, is, decisions, adjoining property, no an open longer question.” 104 U. S. was land Pittsburgh, Kelly urged not laid off into town lots, the owner had but
which occupied which no run streets are agricultural purposes, through cannot even be, used, legislature, subjected water tax, the street tax and tax, taxes of a gas city—the reason for similar character. The this said to.be others of TERM, Opinion of the Court. for the benefit of that such taxes are those who city own limits of within the such and who improvements, use if "or use them while he choose, no they might reaps bene- fit. Cases were cited from the courts of higher Kentucky Iowa Avhere asserted, those principle where courts (cid:127) have held that farm lands aré hot city subject taxes. But this court said: ordinary city “ It is no of our duty into the part on inquire grounds courts have so which those which ’They decided.. questions arise between the citizens of those States and their own city no and afford rule for authorities, the Constitution construing United States. . . . The main for the argument error —the one to we can listen —is that- plaintiff only to the taxes assessed his land de- proceeding regard *11 him of his without due of law. prives process “ It is not asserted in the methods that, the value his land was ascertained Of for purpose this-taxation, the. from the usual inodes there was any departure assessment, that the manner of and nor the tax apportioning collecting different from that was unusual or materially force all land is In where these communities re- subject taxation. no the fnethod is not due spects charge pursued there Taxes have not, law. this rule, general process nor in since its before that country England independence, been collected The neces- time, by regular judicial proceedings. the nature of the to be sities duty government, performed, (cid:127) the and have established a the differ- customary usages people, is and which, matter, ent has always procedure, regard was been due of law. The tax assessed and question it in officers to collect this the were way. proper proceeding on which The distinct this Constitution ground provision land in is that as the of the States invoked United used as for been, has farm land, agricultural is,- always pur- it to for taxation ordinary city’purposes only, subjecting poses due in error of his proc- deprives plaintiff that, with It is truth, ess of law. alleged, probably of the land for taxation is of the value very estimate greatly true Whether or not of its value. true we can- excess CO. v. BARBER ASPHALT PAVING 337
.Opinion of the Court. decided that we cannot re have so often We not here inquire. of the tribunals and mistakes state the errors and correct view de refer to those it is only necessary on that subject, on which they argument without a restatement cisions, S. Kennard v. 92 U. 575 Cases, ; Tax Railroad rest. State 96 New U. S. Orleans, Davidson S. Louisiana, 480; U. v. S. Missouri v. Lewis, 100 U. 491; v. Hotchkiss, Kirtland 97; S. 22; Kimball, 103 U. 732.” v. 101 U. S. National Bank of the S. In U. Merchant, judgment Spencer of the State of New York,'upholding Court of Appeals cover lands to of an assessment validity upon expense court for review to this a local improvement, brought unconstitutional. that the state statute was allegation of this Mr. court, delivered Justice Gray, opinion Court extract given following of Appeals:
“The act of 1881 determines absolutely conclusively amount of the tax to be and the raised, to be as sessed and which it is to be Each of these apportioned. was within the things whose action legislature) cannot be reviewed in the courts that it acted ground or without unjustly reason. The appropriate adequate commit the ascertainment of may the sum to raised and of the benefited district but it not commissioners, bound to do both so, settle itself; questions when it does its action is so, conclusive and necessarily beyond review. Here been ordered and improvement made, chas of which have been ad might justly expense imposed upon benefited of 1881 jacent property change. By act *12 of the cost and ex legislature imposes unpaid portion with the thereon, interest pense, portion prop which far benefited has thus borne none of the burden. erty In so it determines twro viz., doing, necessarily things, amount and realized, benefited property especially by of the amount. The lands been have expenditure might and benefited so determin by improvement, legislative ation that to what and amount or were, they proportion'of if even it have been cost, is not may mistakingly unjust, open VOL. clxxxi —22 TERM,
Opinion of the Court. to our review. The and benefit special question prop it which is of extends and erty fact, necessity question in a when the determines it case within its legisláture general its decision be final. must course We can in the see power, determination reached sources of and error possible perhaps even but we are not at that the tax injustice, to say liberty on the covered the law of 1881 with by imposed out reference benefits. The special legislature practically determined the lands described that act were peculiarly benefited to a certain by amount improvement specified constituted a which of the whole cost and ex just. proportion, ; and while it be that which the pense may re process by sult was reached was and attainable, not the best some other have been we might more accurate and cannot for that just, reason an enactment within the general legislative . . . The is made power. precise wrong complaint now that the land never bad an to be owners assessed appears to be heard as to the opportunity original apportionment, bound find now it as between their themselves practically lots and who But that owners be those paid. objection a criticism the action and the legislature comes to be which it determined the amount raised and process by be assessed. Unless permission, is a never The of taxation. granted hearing determines amounts to be raised expenditures for their the whole discussion and all payment, questions confided to its prudence propriety justice being juris diction. It but courts cannot review its err, discretion! this it within its when case, fixed, first, the kept power amount to be raised to debt incurreá discharge improvement ; direction the lots and, second, when designated which in its reason of benefits, property, judgment, by burden; should bear the we cannot criti- having power, cise the reasons manner its action.”
This definition of legislative approved and the court, the Court was affirmed. judgment Appeals extract is from the of this following court: “ In the absence more constitutional restric- specific *13 CO, v. ASPHALT BARBER PAYING 339
Opinion of tlie Court. n the tion than with- general prohibition against taking property law, the the State, out due legislature having to be levied fix sum for the necessary expense power and to order it to be like assessed,either, improvement, or the lands only other taxes, generally, upon upon is authorized to determine both benefited by improvement, and the the whole class lands which will tax, the amount of and should therefore bear the al- the benefit burden, receive if it commit the fit, sees ascertainment may, though of these facts to the. either or both commission- judgment the determination of the lands to be ers. When benefited is entrusted to owners entitled to no- commissioners, whether their tice lands are hearing upon question (cid:127) how much. benefited and But the has the legislature the statute what determine, by tax, imposing lands, be benefited are in fact might improvement, and if does its benefited; determination so, is conclusive the owners and the courts, and the owners have no upon right be heard whether their lands are benefited but or not, only upon validity its assessment, ap- different of the class which the portionment among parcels has determined to benefited. In de- conclusively what lands benefited termining improvement, spch avail itself information legislature may as it deems either sufficient, through investigations by committees, as its own the estimates or conclusions of by adopting others, whether those estimates conclusions had or had previously sanction.” any legal Paulsen U. S. Portland, where 30, 40, the validity of a ordinance, the cost of a city sewer should providing be distributed within the sewer district, viewers to estimate the share which appointing proportionate each should bear, was because the piece questioned, contained no ordinance it was notice, held provision Court of this court on error, no- Supreme Oregon, tice sufficient notice of this by publication proceedings that as the their viewers, nature, appointment, gave in the official by publication notice of the time paper city TERM,
Opinion of tlae Court. *14 of their first such notice was sufficient place meeting, bring to “ law,” due the within proceedings process of. In v. Fallbrook District Irrigation 164 Bradley, U. S. was involved the act validity irrigation enacted the of the State of of legislature One the California. objections the that it act was urged the against permitted whole cost to levied a board be of directors of the district of all the upon real estate of the district with no reference according value, the of benefit it degree conferred. As to this was said by this court, Mr. through Justice Peckham: for the of this that
Assuming the owner purpose objection had of these lands the of act, the and before the provisions lands'were included finally the an district, to be opportunity before a heard tribunal the . of proper benefits, upon question arewe of that the of decisions such a tribunal, the of absence actual fraud and bad would faith, be, so far as this 'Court conclusive that concerned, It cannot upon question. of be fact of such a nature question this court has review of the the decision the state tribunal which power under a has been statute' for a pronounced providing hearing The erroneous decision of such a notice. of fact question . no constitutional v. violates Merch provision.” Spencer Citing 125 U. S. ant, of
Another to the the act was the total objection validity of to be on an heard the of the ex- want question opportunity the of the cost of district, forming questions pediency to this benefits received. was said: respect “ The in the act a con-' hearing with provision irrigation which the of the board are dition that lands judgment included, not be renders the determination shall benefited after them á that'such board, including hearing, judgment will be benefited by irrigation. lands proposed plan of a notice of the The presentation proposed publication a sufficiént notification to those interested the petition heard them to be before the and gives opportunity question 701; U. S. Lent v. Reclamation 111 v. District, board. Hager 30.” Paulsen 149 U. S. Portland, 140 U. S. v. Tillson, 316; “ It court has has held been v. BARBER CO. PAYING ASPHALT Opinion Court. for itself without as a district benefits,
to fix such
any bearing
district
lands within
for the
assessing upon
purpose
when
The
local,
of a
legislature,
the cost
improvement.
in
made
itself,
to have
fixes the district
proper
supposed
fact
determined
and to have finally
conclusively
quiry,
the citizen
district,
land included
other or further hearing upon
has no constitutional
right
is to a hearing
he
has
thereafter
right
question.
of what is termed
apportionment
tax which he
Paulsen
amount
e.,
pay.
i.
tax,
i$
the deter
in this
41. But when as
case
S. 30,
U
Portland,
included in
of what lands shall
mination
the question
to what lands
to be decided after á decision
district is only
the,
decision
will
benefited,
described
petition
*15
of
board
is submitted
some tribunal, (the
super
that question
in
in this
the
whose lands
included
visors
are thus
case,)
parties
to a
the
are entitled
the
of ben
hearing
petition
upon
question
and to have the lands
if
efits,
excluded
of
board
the
judgment
.the
their
benefited.
be against
being
“ Unless the
decide the
of
itself,
question
the
the land owner has
to be heard
that
right
upon
question
can
before his
be taken.
This,
was de-
substance,
termined
the decisions of.-thiscourt in
by
Merchant,
Spencer’Y.
125 U. S.
Walston v.
356,.and
JVevm,
Opinion of the Court. or an more appointed court, inquest or consisting fewer men than ordinary jury; Congress, exercise in the District of Columbia, taxation right .the direct may half the amount of or compensation' awarded damages to the owners of to the use lands for a public appropriated high- shall be assessed and way District of Colum- charged upon bia, and the other half the lands benefited within thereby the District, in commit benefit; proportion ascertainment of the to be assessed, lands apportion- ment of the benefits them, the same tribunal among which assesses or that if the compensation damages; legislature, lands benefited or other taxing public highway, improve- makes for ment, notice, provision otherwise,' publication to each owner of at land, him, some hearing stage what tax proceedings, upon proportion shall assessed his his not taken- with- land, out due of law. of the court delivered Mr. case, that the it was said statute un provisions
Justice Cray, the. the assessment of. consideration, regulated' damages, der domain, .to the of eminent but to referred, right that' the -and the exercise taxation, legislature, right has the to direct the authority whole, taxation, the right of a im expense such may prescribe, part widening, as the establishing, grading provement, assessed the owners of lands to be a street, or the repair has been such authority and that repeatedly benefited thereby; *16 of with by in District Columbia Congress, exercised v, 14 Wall. Presbury, Willard of this sanction citing court — S. 687; U. Shoe Columbia, 97 v. District 676; Mattingly of 302. It was also said S. 282, 147 U. States, maker United for be be may lands to assessed purpose that the class itself, terri by defining by. legislature either determined it be left or by other may or torial district, by designation; and be made commissioners, determination as the and commissioners lands, only,' of such to consist rulé of that the be benefited; apportionment to decide shall also the dis- rests within land benefited parcels among v. BARBER CO. ASPHALT PAVING Opinion Chart. be directed be in and of tbe may propor-
cretion legislature, value, tbe, tbe area tbe market tbe tion frontage, position, benefit's to tbe as estimated by of tbe lands, proportion commissioners. this court considered by has recently
This been subject U. S. and' Columbia, District the case Parsons v. authorities, that tbe a review held, it was there after levied for water that assessments laying enactment Congress at tbe rate of be should $1.25 mains Columbia the'District of land on tbe lots linear all abutting foot front per against or. be was- shall laid, in which a road or watermain street, alley, tbe tbe necessity and was conclusive alike bonstitutional, of its benefit as work-and against abutting property. to extend this
We do not deemit opinion by referring necessary in which courts, cases in the state principles the many It will cases have been approved applied. foregoing reached, conclusions after a review sufficient to state the be state two text-writers of decisions, authority high learning accuracy: “ The of the cost of local work is sometimes major part collected while tax, a-smaller levied general portion'is the estates benefited. specially “ The is assessed on estates benefited, sometimes major part while the a smaller is-taxed considera- general public portion aof smaller tion benefits. participation “ whole on The cost other cases levied lands the im- mediate the work. vicinity “ view, aIn of these constitutional either methods point and one be another at admissible, sometimes may just (cid:127) In deemed other times. other cases it be reasonable fo no make whole cost a as- levy general charge, and, sessment whatever. The all legislative, like but it is erroneously; decided legislative questions, rqay choice, with such latitude of the tax that, reasonable expect n will be than would more were just legisla- equal inflexible ture one rule.” required arbitrary levy Cooley Taxation, that the very generally agreed authority ’.courts *17 TERM,
Opinion of the Court. benefited to of require bear property specially expense local is a branch improvements or included taxing power, within it. . . . Whether the im- expense making shall be out of provements or be as- paid general treasury, sessed or other' upon abutting benefited, property specially and, if the latter mode, whether the assessment shall be upon all found to be property alone benefited, abutters, .or according their frontage lots, to the area of according according present considered to be a weight authority legislative Dillon’s Cor- expediency.” Municipal vol. 2, 4th porations, 752, ed. §
This array in the courts authority- confronted, below, with the decision of this court the case of Norwood v. Baker, S. 172 U. was claimed to overrule our cases, previous and to establish the that the cost of a local principle improve- ment cannot be assessed against abutting according property unless the law, under which the frontage, improvement a made, as to the provides benefits to preliminary hearing be derived to be assessed.
But we with the Court of Missouri in agree its view Supreme that such is not the of the decision in necessary legal import Norwood Baker. That was a case where ordi- by village aimed at a nance, apparently whose single person, portion was condemned for a street, the entire cost open- the street, not the full ing amount for the including only paid but the costs and condemned, strip condemna- expenses tion was thrown proceedings, abutting property whose land was condemned. This both person appeared, the, to the court below and to a of this majority judges court, abuse an act of law, confiscation, not a valid exercise of the court, This did however, taxing power. . affirm the decree of the trial court in- awarding perpetual and collection of junction against making as- any special sessments Mrs. Baker’s but said: property, “ It should be observed- that the decree did not relieve the' for. such amount could abutting liability as assessed it. Its effect, we now ad- properly against legal enforcement only prevent judge, particular PAVING CO. v. BARBER ASPHALT
Opinion of the Court. *18 in to discretion, It the its in left village, question.. assessment to under within its either take, as were take such steps thereafter or under might any authority statutes existing the amake new assessment it, plain- to be conferred upon the much the open-' so expense tiff’s abutting property due and inquiry as found proper of the street was upon' ing By accruing property. to the equal of func- avoided the court performance the decree rendered and left the tribunal body, tions an assessing appertaining authorities the local designated under control of subject the State.” claimed by extent
That this decision did not to the go in the opinion because in error this case evident, plaintiff was not it is the decision said that of majority expressly v. District Co with our in Parsons inconsistent decisions 125 U. S. Merchant, U. S. and lumbia, 45, 56, Spencer 345, 357.
It be conceded that courts are open equity always afford a there is an where under remedy attempt, guise life, a of his proceedings, person legal deprive liberty prop due such, of law. And in the erty, of this court, the nature and majority judges ef-. feet of the the case Norwood v. Baker. proceedings is no But there such a state of facts case. present Those thus are stated the court'of Missouri: facts work done
“The consisted with paving asphaltum of Forest avenue Kansas feet in roadway City, thirty-six width, avenue to Twelfth street, distance Independence , half a mile. and of one Forest is one of the oldest best avenue residence in the and all of lots streets abutt- improved city, front back therefrom uni- thereon street extend ing lot to of an The formly depth ordinary city alley. are all and used for residence all lots improved purposes, on the as of the lots are street improved, substantially grade with situated similarly respect asphalt pavement. structure of entire extent is uniform The pavement along There is no that there distance quality. showing any value of the lots on the im- difference abutting provement.” TERM, Hablan, dissenting. White
What was of was an tinder a complained orderly procedure scheme of local improvements prescribed courts of the State consistent consti- approved by with tutional principles.
The Court of Missouri is judgment Supreme
Affirmed. Me. whom concurred Me. Justice (with HaelaN, Justice and Me. Justice McKeNNA,) tax bills here in to cover the cost purport with of Forest avenue in Kansas paving asphalt part City, Missouri. The work was done under the orders of the common *19 council of that and-the tax it is bills, were made city, alleged, out in with the charter. conformity provisions city section two of article nine of the
By charter it city was pro- vided that “the shall have to cause to be city power graded, regraded, constructed, reconstructed, paved, blocked, repaved, reblocked, macadamized, graveled, regraveled, remacadamized, or curbed, recurbed, guttered, otherwise reguttered, improved or all streets, sidewalks, repaired, alleys, avenues, public high- . . . thereof, therefor out of the ways pay parts fund tax bills issuing or as herein by special men- general tioned.- . .
The same that no section resolution for the provides paving, etc., avenue, repaving, street, alley-, any or public highway thereof shall be the common council part passed except the board of recommendation of works indorsed public if thereon; and further, resident owners of provided who own a in front of all city feet the lands majority belonging to such residents and on the street, fronting alley, avenue, pub- or lic thereof to part within highway shall, improved thirty after the first days day such file resolution, publication with the board of works public them, petition, signed by such have street, avenue, or alley, public thereof highway part blocked, paved, repaved, reblocked, graveled, ma- regraveled, -or cadamized remacadamized with a different kind material in a or different manner from such specified resolution, CO. ASPHALT PAYING
FRENCH BARBER Harlan, or of such work for the the ordinance doing then providing that the work shall such shall provide making improvement in such .with the material done the manner and specified not be recom- ordinance need and in such case the petition, the re- If as aforesaid. the board works mended public mentioned above owners of the 'resident monstrance then the as herein clerk, shall be filed with city provided, council to make the improve- of the common proposed until a cease tax bills shall therefor ment and pay their or so remonstrating grantees sufficient number persons their or names, repre- withdraw . shall, writing, that said remon- so them, remonstrance, sented of the resident strance shall cease prop- majority .represent shall, as above the common council owners, when erty provided, to cause the manner above mentioned proposed proceed section it was be made.” But by improvement subsequent “ When it re- block, shall be provided: proposed pave, repave, macadamize or remacadamize block, street, regravel, gravel, thereof and avenue, alley, highway pay part therefor if bills, ordinance, tax the common council shall, find and declare that the resolution in section two of provided this article has been as therein and that the. published required resident owners of the who own a in front feet city majority street, of all the lands to such residents on the belonging fronting thereof to be avenue, alley, public highway part improved have filed with the clerk a remonstrance city against *20 of such work or a of such im- for the doing petition making with -a different kind in a different' of material or provement manner from that in such or that resolution, specified such peti- for the in tion was filed of the work as mentioned said doing such- and be conclusive for ordinance, declaration shall finding all and no tax be bill shall held invalid or purposes, special af- for the reason that such resolution was not as published fected therein or remonstrance or required, petition 'sufficiently was as therein or that such signed required, petition filed 4. or insufficiently signed.” § filed “ it was section three all ordinances and By provided for all authorized to be contracts work done section two TERM, . Harlan, and this article shall how the same is to be and specify for, paid case is to tax be made bills, shall payment special city no event nor in manner whatever be-liablefor onor account any of the work.” cost work on sidewalks, done streets, avenues, alleys
and for the fifth and sixth public highways provided sec “ tions of the same article, as The cost of all work on follows.: sidewalk, any including side curbing guttering along exclusive of the thereof, of the shall be same, grading charged aas tax special lands the front adjoining according thereof on the sidewalk. age The cost all other work speci fied in the first three on sections of this article all streets, ave nues, thereof, or shall public be highways, parts alle3rs as a tax the land on both sides charged special adjoin ing street, or avenue, or. thereof alley public highway, parts . thereof.’ ... improved, When according frontage work other than or any as last grading regrading, aforesaid, shall be is to for in tax completed, bills, paid special, the board of 'works shall causé the public to com city engineer cost the same thereof, pute among several apportion lots or land to be therewith, each parcels charged charge lot or of land with its share of such cost accord parcel proper such board land. The works ing frontage public after the work has been so shall, cost of apportioned bills, hereinafter tax payment provided, except make out and favor of the contractor or contractors certify, amount bill for the tax paid, special tax, each lot according against parcel apportionment, land to be charged.” section of the same article tax By bill eighteen every special under lien
issued land made de- provisions 'to the therein, scribed the date of' the board of receipt works and such lien shall continue for two' therefor, thereafter.” years
It thus that under the charter Kansas appears City avenue, cost or the of any street, paving alley repaving under a public highway, abutting property put upon whatever of rule consideration absolutely excluding any *21 v. BARBER ASPHALT PAVING- CO. Hablau, McKehna, reason the work by accruing, special such It is true the in de- owner, done, abutting' property. on a tax show mis bill, fence of a suit may any brought special the of such or that the work was bill, in amount take error in cost, but the set forth workmanlike .manner; not done a. in a suit on the tax must bill, tax or when bill, the ascertained to its the be borne property, according by abutting frontage, benefits, if excess even such cost be substantial special So the the assessed. if abutting prop any, accruing such cost must even cost, bear the frontage, erty according if the land. the Thus, or actual marlcet valtie the eguals full on the street subjected entire improved, abutting chartér, to a lien in favor of that the is, the statute, by city the or his be taken from owner, the contractor assignee, may to meet the cost the improv -for benefit general public, entire is inter in which the a community highway ing public is not of the that it circumstance, contended, But ested. for—so the consequence; argument support slightest land runs—the determined having .statute to its meet street shall, according frontage, public abutting that, the courts street, -whatever cost, be, improving has received cannot whether owner inquire him of a burden not benefit justifies putting for shared whose use improvement general public nor whether the cost of -work was made, inquire equals to this I assent exceeds value cannot property. prin announced It to the recognizes, contrary ciple. principles the exist 297, 172 U. S. Baker, 279, 293, Norwood 269, 277, which, ence in the branch of powers legislative government I take cannot be leave exercised-without violating say, the full that case, of the United States. Constitution cases, held as had been consideration, held, est previous Fourteenth Amend of law due prescribed the, or secured owner to be made ment compensation requires or under its author State taken when private property an assessment abut for use. We also held that ity incurred cost and opening expense ting property taxation, to be street was referred TERM, *22 Habeas, McKenna, Justices dissenting. White Constitution United States- forbade an exercise of that that would the cost of a power put upon private property pub- in lic work substantial excess of the benefits special accruing it from such to work. Let us if see -that was not the decision of the court..
In that case the was the attempt made put upon abutting the entire cost incurred property street opening public the owner’s lands. No as to through benefits inquiry special made; was no indeed, of that character was inquiry permissible the under ordinance in virtue of the street was opened. It was not denied that the consistent ordinance was with the statutes the anti State; the was question distinctly presented whether a assessment for the special cost street opening could be through private sustained under 'property Consti- the tution of the United States if it was'made under a rule exclud- all as to benefits ing inquiry special accruing abutting (cid:127) reason of such In that case was improvement. property and not wished the owner of the the public the n street to The of the Circuit Court opened. judgment enjoin- the assessment was affirmed the our man- ing ground upon —so “ the date stated —that assessment was under a rule expressly which excluded as to the nec- benefits, any inquiry of which was, to extent the excess essary operation over ac- street any special cost opening benefits to take therefrom, private prop-- to the abutting property cruing mandate for use compensation.” erty public : “It should be for cóurt said with the opinion, harmony relieve the did not observed that the decree abutting assessed as could be for amount from properly liability effect, as'we now only pre- it. Its adjudge, against legal assessment the enforcement question. vent particular as were to take such discretion, in its steps It left village, or under statutes, under take, either existing within it, be conferred thereafter upon any authority might make a new assessment abutting upon plaintiff’s found as was street much of the for so opening expense benefits to be due inquiry equal proper to the property.” accruing v. PAVING CO. BARBER ASPHALT Harlan, some observations case makes iu tbe
As the court present it will be-well Baker, v. decision Norwood to tbe scope in that which our judgment to ascertain precise grounds indicated Those following case was based. grounds from extracts opinion: owners subjected-to special Undoubtedly abutting highways openingpublic assessments meet expensesof to well- assessments, according their property —such front of bur that special established ground principles, resting accruing dens peculiar maybe imposed spefiial 102U. S. Kimball, Mobile County improvements. *23 v. 147 U. Decatur, Illinois Central Railroad S. 691, 703, 704; 548, 589, S. authorities Ross, Bauman v. 167 U. 190, 202; to the authority, there And judicial cited. according weight discretion territory has a defihing large legislature a improvement, be benefited public' specially by deemed to meet the which be assessment cost may subjected special S. U. In Williams such Eggleston, improvement. as to the stated, as this court 311, where the-only' question, a to cast the burden of power legislature public improve ment certain towns which had been determined judicially ‘ to be such towns was said by : Neither improvement, benefited- if can doubted the state that, be constitution does not pro hibit, thé a create new tax legislature, speaking generally, may what district, determine shall such dis ing territory belong trict and what shall be considered benefited by But the proposed improvement.’ power legislature is these matters not unlimited. There is which a'point.beyond when even legislative department, exerting not' taxation, with the citizen’s may .consistently go right As indicated,'the .property.. already underlying spe principle cial assessments to meet cost of. public improvements' bene property upon they imposed peculiarly do fited, therefore owners not, fact, anything pay of what reason excess receive of such they by improvement. But the for would protection guaranties private property if it were established as a rule of consti impaired, seriously tutional that the law, partic- imposition by legislature TERM, 1900. Hablan,
ular of the entire cost of a private public improvement, benefits irrespective the owner from accruing peculiar such not be could him in improvement, the courts questioned by of the c'ountry.” “: It is one for the Again thing as á prescribe rule that general on a street property abutting opened by shall be to have deemed been public benefited such specially by and therefore should .improvement, contribute to the specially cost incurred It is public. different quite thing lay it down as an absolute rule that such whether it is in property, fact benefited the street, be as- opening sessed the front foot for a fixed sum the whole representing cost of the improvement, any right owner to when show, assessment of that kind is made or fix;ed about to be made, that the sum so is in excessof the bene- fits received. In our the exaction from the owner of judgment, of the cost of a private property public sub- improvement stantial excess of the himto accruing is, extent under excess, taking, guise taxation, of use without private property We compensation.. say ‘substantial because exact excess,’ taxation is not equality and for that reason the excess of always attainable, cost over unless it be of material special benefits, character, not to ought a court of when its aid is regarded invoked to Equity restrain the enforcement of a assessment.’’’ Further, in *24 “ the case: The decree does not the if same prevent village, or 'has obtains to that from to make an end, proceeding in assessment with the view indicated in-this conformity opin- ion, That while be namely: may abutting property specially assessed on account of the the of a expense attending opening street in front of such assessment must be public it; measured or limited the that benefits by it, is, bene- special by accruing fits that are not shared the and that taxa- general public; tion of the for substantial excess of such any abutting propertji cost over benefits will, to the extent of such be a special excess, for use without taking private property public compensa- ' tion.”- v the court intend in Does this case to overrule -the-principles PAVING BARBER ASPHALT CO. Haklan, ? it intend to announced v. Baker Does as Norwood reject “ (cid:127) doctrine that the unsound the special principle underlying meet cost of is that the assessments improvements public which benefited, they imposed peculiarly property upon do excess therefore owners not, fact, anything pay ánd ” such ? Is it of what receive reason of improvement they in this to overrule the doctrine court, case, purpose the cost that taxation meet abutting public amount in taxation an substantial being .improvement —:such towill, thé excess benefits received —“ extent special use,without be excess, public taking private property-for ”? is so worded compensation majority I am able with absolute con that not to answer these questions t,o It tell how the court intends to is difficult far just fidence. . But I am from the' intimations contained in sure, quite go.' it will be cited some opinion, resting -broad determination as to the extent ground legislative to which on a street as land"abutting may be'specially Cost sessed forthe such street is paving conclusive owner,'and that he will not be in a heard, tribunal judicial elsewhere,-to even under rule complain if, prescribed, is in cost substantial excess of any accruing his even if such cost or exceeds property, equals value of taxed.- The reasons which, iny judg specially ment; condemn such a inconsistent with doctrínelas' Con the. stitution are forth set' in Norwood v. Baker, need But I add a repeated. reference' to some recent adjudic s . ation In Sears v. Boston, 173 Mass. 71, case óf a to meet assessment the cost streets, the watering court said: It is now established au highest judicial that such thority assessments cannot so laid estate as to be substantial excess the benefit case received. The of Norwood v. 172 U. S. an Baker, 269, contains elaborate dis cussion of -the with a citation of authorities subject, many of the. holds a local States, assessment for amount in substantial excess of the benefit received violation Fourteenth Amendment of -the Constitution of the United
YOL.cr.xxxi—23 TERM, 1900. 354 Hablan, and inasmuch as it his without States, would'depriveoneof and só compensation,1 due of law. -The author process of this case is in all and if it ity courts, state were controlling not, it is in accordancewith sound and with the principle, great weight in other courts. The which have authority principles often been stated this court to the lead same result. Boston v. & Railroad, Boston 170 Mass. and cases cited.” Albany 95, 101, In Street Sears v. Commissioners, 350, Mass. which 352, 173 the case land to meet certain charges upon the.cost work done under Mr. Justice sewerage municipal authority, Khowlton, unanimous delivering court, judgment “ we treat said : If the determination of these as local. charges assessment we have to con estates, special upon particular sider the on taxation which such is founded. "'It is principles well established kind- of this taxation under permissible the constitution of this- and under the Commonwealth Consti tution of the United when founded only States, from- the to the ac peculiar expenditure count of which the tax and then to' cm amovmt not laid, only . . The fact such special exceeding peculiar benefits. to be are for the main construction, determined the charges of,.the works whole tenance and the sewerage operation city, construction which in some force gives possibility' whether, but this construction should be cludes all'benefits; be determined on or not, any may grounds adopted charges which deem arid commissioners street just proper, may if at be founded all, degree, upon special greát case exceed benefits, in any peculiar particular largely benefits. This statute to.bring itself enough fact within inasmuch as Constitution, prohibition pur to authorize a ports pay charge taking ,aon is not founded received benefit equivalent the estate or its :a be without owner. Such would due taking v. S. Baker, Norwood 172 U. 269; citing law”— New Brunswick v. Street 9 Com’rs, Vroom, 190; Rubber Co. 56 Vermont, Barnes v. and Thomas Dyer, 469, Gain, y. Mich. 251, Dexter Mass. Boston, 252, “ It is as it is in court, said: in this now law court settled *26 v. CO- ASPHALT PAYING 355 BARBER J Hablan, McKenna, dissenting. usxioes White of and in other States, Court United courts, 'many Supreme that after the construction of a a local as public improvement of it cannot be laid sessment for the cost real estate in the benefit received excess of substantial property. founded on the must be benefits, Such assessments be pro To the same effect are benefits.” Hutchi portioned v. son v. 92 Adams Storrie, Texas, 688; City, N. E. (Ind.) 57 McKee 114; Pendleton, v. Town 57 N. E. Rep. (Ind.) Rep. of 53 94 Fed. v. Fay City 409; Loeb v. Springfield, Rep. 2; of 91 Trustees, Fed. Charles v. Marion 98 37; Fed. City, Rep. 99 Fed. 166; 840. Rep. Cowley Spokane, Rep.
The after of court, to the declaration referring Supreme Court of Missouri to the effect the .Fourteenth Amendment “ was not to this in order to case, applicable proceeds, prevent confusion and relieve from to refer to some of the repetition,” cases under that and the Fifth arising Amendment.
same connection the Fifth and court, Four- referring “ teenth Amendments, while the says those language Amendments is the same respect deprivation prop- [in due erty without process law],, were they engrafted yet the Constitution at different times and in different widely circumstances of our national life, m'ay that questions may arise which different constructions of their application's provisions A:sthe court proper.” declines to expressly “ formulate rule to determine for all any cases ivhat it is for a State to deprive life, person liberty due I will not enter process law,” of that upon discussion but content with question, myself that the saying prohibition against deprivation without due law cannot mean one under the Fifth thing Amendment and an- other under the thing Fourteenth Amendment, words used the same in each being If Amendment. the court intends intimate the in its I submit that the intima- contrary opinion, tion is not sustained former and is not by any decision, justified sound principle. as, first case to which the court refers under the arising Fourteenth Amendment is Davidson v. New Orleans, U. S. 97, 103-105. From that cáse sentences are which were quoted TERM, Hablad, intended remove the then to exist with impression, supposed that under that Amendment it
.some, possible bring the test of the decision this court the abstract opinions unsuccessful in a state court of the every litigant justice.of decision and of him, the merits of the against legislation which such a be founded.” But the court in the decision.ma}^ case overlooks another present in Davidson part the'opinion v. New Orleans which was to the issue in that pertinent cáse, and is to the present discussion. After pertinent speaking of an difficulty down rule to attempt lay determine *27 ¿nd the full of the Fourteenth scope Amendment, suggesting that, the wise course was to of- proceed by gradual process “ inclusion and the court said: judicial exclusion, As contribut- to-some to extent, this mode of ing, what class of determining do cases not fall within its we down the provision, fol- lay as to lowing the case before proposition, usThat applicable' whenever the laws of a or state State, a authority, tax, assessment, servitude or other burden is imposed upon property for the whether it use, be the whole public State or of some more limited and those portion laws community,, provide for a mode of or confirming thus contesting charge imposed, courts of with' such notice to the ordinary justice, person, or such iii to the as is proceeding regard property appropriate to the nature of the case, judgment proceedings cannot be said owner of his deprive however due obnoxious it be to law, other ob- process majr direct Here is a affirmation of the doctrine that a jections.” other tax, burden assessment,"servitude imposed by a or under its with State, consistently due authority, proc- ess of law Amendment, Fourteenth prescribed by if Avhichsuch tax, person assessment, owning property upon servitude or burden is is an in some opportunity, imposed given In the contest the matter. appropriate Way, case, present ho such error, to the opportunity given plaintiffs the state court held that -to had show, they no right their tribunal, taken -for the cost of being a street substantial-excess improving public any ASPHALT r. BARBER PAVING CO. FRENCH' 357- McKesna, Haelae, those to the to them beyond accruing general accruing the street so improved. using owning the court to McMillen v. Anderson, made Reference will be found in which cei‘tain observations 38, 42, S. 95 U. “ law.” In that case the due to the words only as statute of Louisiana a was whether imposing license to be did tax, person opportunity present give him, for its col- the tax was when against provide assessed^ in violation Fourteenth Amendment. suit, was lection by case after court, referring provision requiring, that the should ten license tax was not collector paid, give anti notice to the if at the written or delinquent, days’ printed thé was not the tax of that time license fully paid, expiration to seize and without .judicial formality, proceed collector might, the delin- advertisement,- after ten sell, days’ or so much the taxes as might necessary pay quent, said: declares who is liable to this costs, Another statute tax,. it. fixes the amount of The statute here re- complained of its to the manner collection. Here is a lates notice only for a" assessed, officer, proper party given sum, and.'ten a certain time him tax of kind, days’ it. given pay not-this a mode It seems Is legal proceeding? be sup- essential of this tax that validity posed should have been or had an charged present, party opportunity *28 in some tribunal when he was assessed. But present, this and never considered not, been, has necessary validity a tax. And the fact that most of the of States now have boards of tax revisers assessments does not that taxes levied prove them are void. Nor without is the with such person charged a tax the laws of Louisiana. legal remedy by It is' that in that as in State, if others, probable compelled pay tax his he can sue by levy upon, property, proper and recover back under if money party paid duress, was But hoivever tax it is- certain illegal. be, quite he if can, he is wrongfully taxed, stay proceedings for collection See Code of injunction. Prac- Fouqua’s Arts. Louisiana, 29G-309, tice inclusive. The act 1874 to an recognizes right injunction, regulates proceed- TERM, 1900. Hablas-, when It issued the collection taxes. declares that
ings stay shall be treated the courts as im- cases, they preferred a double tax a dissolution of the Here poses injunction.” we have, to the intimation of the given contrary court in this of the that the Four- case, recognition principle teenth Amendment does cases taxation under the apply laws of a it is to State. And be observed that the court in McMillen v. takes care Anderson to show under the that, laws was Louisiana, an tobe heard taxpayer given opportunity of the of the tax'* him. respect validity imposed upon cases cited theof announced
Among
conclusions
support
v. District
97 U. S.
majority Mattingly
Columbia,
692
v.
687,
;
104 U. S.
Kelly
78;
v. Mer
Pittsburgh,
Spencer
It seems to me clear that the before quite particular question us was not involved or determined of those cases. f In v. District Columbia, was said Mattingly that the o road, direct assessments for. legislature may or special street to be made in to the improvements proportion frontage, area or value of the market at its discre adjoining property, j,n tion.” But that falls far short assessment deciding could be sustained if it exceeded the proportion frontage value of the was for amount’ or in- excess of the to the assessed. no accruing Besides, ,as- was made in that case to the cost of the work ex special benefits. ceeding Kelly involved or Pittsburgh, only point adjudged
was that did not Fourteenth Amendment stand in the way of the of a State the limits of a or extending, city so as to include fit lands use township agricultural only, and make them to taxation for the local subject purposes extended did town, the owners not city although enjoy advantages same extent as municipal government those who resided in the settled-parts citj' thickly town. It a case which the particular assessed a rule not persons to all specially applicable *29 v. FRENCH BARBER ASPHALT PAVING CO. Hablan",.
Justice's it was admitted On the other assessments. contrary for methods to ascertain the value pur- that the case adopted taxation of the there in were lands local question poses and that manner as were usually apportioning employed, tax different' rvas not unusual or materially collecting land was all communities where force,in subject from that function of the It that it was not the to-taxation. was held of lánds court to correct mere errors the valuation pur- of taxation. poses an excess of v. no arose as to Merchant Spencer question bene cost of the over there in improvement question constitution
fits. The before the court was as question deter of a what had been statute ality validating judicially when declared mined to be a void assessment. so This court that the said who plaintiff, questioned validity stat contended “that ute, statute 1881 was unconstitutional because was an the' vali void, legislature attempt date void assessment, the lands owners giving assessed an to be heard the whole opportunity amount upon the assessments The court held that the statute was, itself under the circumstances of that all the case, notice and hearing of the lands t'he owners There required. was no occasion for declaration as to the general of the powers cover cases void "would assessments validated by legislative where the enactment amount assessed upon particular property inwas substantial excess of to it. Re accruing v. Spencer Merchant, court said ferring v. Norwood raised in Baker: point case—the onlypoint judg one ment—was relating notice the owners of proper in order that assessed, be they heard might the., equitable apportionment sum directed to levied all of them. This both appears and the in that case.” dissenting opinion
In Paulsen Portland was that only point adjudged notice in a time publication newspaper place of viewers meeting estimate the appointed proportion- ate share which- each should bear of the piece amount assessed in a sewer district for the cost *30 TERM, Hablan, McKenna,
Justices White dissenting. sewer, was sufficient the bring “to within proceedings due law.” The court in that case took care to that' say it did not the that question “notice to proposition the tax- in some form payer must be before an given assessment for the construction of a sewer can be as in sustained, other any demand the individual for a of his portion property.’-’ That case cannot be held to the views of the support Supreme Court Missouri, that court in this case held in substance under that, legislative on a authority, property fronting street could all be taken to cost pay street, improving whatever to the leaving and that nothing owner, too without notice and without any in the any owner, right form, any show the amount to be exceeded not required paid only any special but even accruing property the-value of the assessed.
In Bauman v. had a we which a Boss assess-' case ment made, under an act of Congress, imposing upon lands benefited one half of the amount awarded the court for each reservation, damages highway part thereof, condemned established under the act. The assessment was “ to be the lands benefited directed charged upon laying out and of such or reservation or highway thereof,” opening part “ directed to and' the ascertain determine what jury act benefited.” same directed the thereby jury which it found to be so assess each benefited parcel against of the sum assessed, that as to part provided proportional taken, had been due of which tract, only allowance part if should made for the “which shall amount, have any, taken been deducted from the value of the on account of part tract.” In the benefit to the remainder such case, the full to be owner of the heard before being given right an authorized tribunal benefits, no question could arise such as is presented present question one. was as to Parsons v. District Columbia which for estab- of an act of validity Congress provided “ in this District, lishing, system, comprehensive regulating maintenance of water and the erection and res- supply mains.” It was ervoirs and water assessments provided v. BARBER ASPHALT PAYING CO. Hablan, linear mains should be at the rate of $1.25 levied for water per road or all or land the street, foot lots against abutting main is This other court, a water laid. alley among said: Another assessment complaint things, urged to be exceeded the actual cost and this work, supposed down this the fact that the par- shown expense putting ticular was less than amount raised the assess- main the fact that ment. But overlooks this objection laying the water and that the assessment main was system, part but to *31 was not down raise merely put pipes, prescribed fund The a to the efficient raised repair. moneys keep system of not the are into the the beyond gen- expense pipes paid laying of but aside eral the are set to maintain and District, treasury “ add, the But the court took care to and there' system.” repair ,the no between amount assessed and the disproportion as to actual cost show abuse of The legislative power.” words are if had not thus added and been significant, they added the would not have dissent. passed The words referred the conclusion if that there had justify if been abuse of the amount legislative power; assessed had been of excess the cost of substantially materially the work or of the value' of the of the property assessed, benefits the of received, owners the special abutting property have of might violation of justly their consti- complained á. tutional rights.
The court, certain opinion, quotes Cooley’s passages Taxation, Treatise on in which author refers the different modes which the cost of local work be met, may namely: a tax to cover (1) general cost, the smaller major part be levied portion estates benefited; specially (2) tax on the land benefited to meet the specially major part cost, smaller to be part and paid by general public; a tax for the whole cost on (3) the lands vi- immediate cinity work. In of each of these methods the respect “ court cites these words of In a : constitutional Cooley point either of these view, methods is and admissible, one' may sometimes and another at other just times. other cases it be deemed may geb'efal reasonable make whole cost a TERM, 1900. Hablan,
. no assessment whatever. The levy charge, and like all be decided legislative may legislative, questions, but it is reasonable to with such lati- thatj erroneously; expect tax will be tude of more than would choice, just equal, be were the one inflexible and required levy on rule.” c. Taxation, 20, 5; arbitrary Cooley Cooley § Taxation, 2d ed. 637, §
But in the same from which the above extract was chapter made the author discusses fully underlying principles spe assessments, cial are a assessments saying: Special peculiar taxation, burdens im species standing apart'from general for state posed municipal purposes, governed prin do of taxes ciples apply levy generally. general understood to exact contributions return the general and it government, promises nothing persons taxed what from an beyond administration anticipated the laws for individual and the protection general public good. on the other assessments, made hand, as Special is to he portion community specially sumption the value enhancement peculiarly benefited situated regards expenditure peculiarly contemplated pub in addition to the and, lic demand funds; general levy, they in consideration contributions, special benefit, *32 it. The of de shall be made by person receiving justice contribution is to be evident in manding supposed who to make while are it, the fact that are persons they of a at the same time to made to bear cost work, public are loss their increased suffer no pecuniary thereby, property being in to an amount at least to the value by equal expenditure that is the idea underlies sum This they required pay. c. on 20, 1; all these levies.” on Taxation, 416, Cooley Cooley § the declaration 2d ed. 1. To this we add 606, Taxation, may § of the author for the Court when, Michigan speaking Supreme “ 35 It is Mich. he said : Gain, 155, 162, Thomas generally levied actual or an assessment without regard prob agreed is able appropriate constituting attempt benefits unlawful use.” court overruled- cThe court overruled other in the same passages chapter v. BARBER ASPHALT PAYING CO. Harlan, to tbe rule of on Taxation. assess Referring Treatise Cooley’s on a local foot abutting the front improve ment has been established over which district no where ment, taxing some standard of actual benefit, be distributed by cost could “ itBut has been on what denied, or says: Cooley presumptive, that this is It is conclusive permissible. seems the most grounds, one of its because not taxation lacking indispen legitimate lot each each by itself, sable It considers compelling elements. in front of without ref it, to bear the burden improvement to be made erence to contribution improvement by any without other any any consequently appor property, circumstances, tionment. From accidental the major part work front the cost of an expended important not all of a those circumstances at lot;, contributing single lot make the more valuable to the thus improvement specially even But burdened, perhaps having opposite consequence. whatever be the result cases, the fatal vice might particular is that no system districts taxing it-provides whatever. It is as and would arbitrary sometimes be principle, as un as a that a town equal operation, regulation which a state officer chanced to be chosen should his or pay salary, in which the or locality standing army, any it, portion should be stationed for the time should be being with charged If one is taxation support. legitimate other would be. In sidewalk cases a of the kind has regulation been held admis but it sible, has been as a justified regulation police, not on the supported taxing power As has been exclusively. well said, individuals to compel contribute or money prop to the use of the erty without public, reference to common any ratio, the sum one requiring or kind paid by piece one property, to bear relation person, whatever to that is to another, paid by forced lay contribution, within tax, the sense of those terms as to the exercise of applied powers by any enlightened responsible government.” Cooley on Taxation, Taxation, c. 53; 2d ed. Cooley 646,647. § The author also I do what not find in says court in this case: There can no justification any pro- *33 ceeding than, with an the.land charges assessmentgreater TERM, 1900'. IIahean, it is a case benefit; plain appropriating private property use without compensation.” 2d ed. Cooley Taxation,
The court also cites from Dillon’s Treatise on Cor Municipal certain to the porations effect that whether'the passages ex “ pense local shall be making out improvements paid general or be assessed or treasury, other abutting prop and if in erty specially benefited, mode, latter whether the assessment shall be all found to be- benefited, alone abuttees, according frontage according the area of their is lots,, of au present according weight considered thority to be a legislative expediency.” Mun. Dillon, 4th ed. Corp. 912, 752. These views p. need § not be controverted in this case, and of their soundness I have no doubt when we are rule to be ascertaining general ap plied classes of cases referred to particular the author. by But the above Dillon no means quotation indicates his by as to the rule application general announced by him. In the same from which the court I chapter find quotes, announced the author as principles deduced following, from an extended reference to numerous cases: adjudged Spe assessed, cial benefits to benefits is, received it in addition those received at commu/nity largei true and only upon which-local just assessments foundation can and to the extent it is rest; everywhere authorize, that the admitted local taxes or as legislature- may to be made.” “When not restrained sessments Again: constitution of the State, has a dis particular legislature commensurate with the broad cretion, domain of legislative what power, making provisions ascertaining benefited and how the' benefits shall be specially apportioned. This is nowhere stated, but the proposition, denied; adjudged cases do not the'extent agree upon legislative power. courts which have followed the doctrine of the case in leading New York, 4 N. Y. have asserted that People Brooklyn, in this authority regard quite but limits; the decided of the later decisions, tendency including those of the courts of New Jersey, Michigan Pennsylvania, *34 v. BARBER ASPHALT PAVING CO. 365 Hablan,.White McKenna, and dissenting.
Justices is not that the and unlimited, to bold that legislative power must some rule these assessments apportioned by capable and that reasonable such a equality, provisions producing that it the burden as to make can be impossible nature legally are with exactions proximate equality arbitrary apportioned an Dillon, and not exercise Mun. legislative authority.” the author Further, 4th ed. 934, 761. Whether says: Corp. p. § to declare for the that no is competent part of a of a local nature shall be public improvement expense and that whole of it tax, borne shall be as- by general and other sessed abutting property upon property for itself deter- thus vicinity improvements, conclusively that such benefited, not but specially mining, only thus to the extent of the cost of the that it is benefited improve- ment, and then to for the the amount provide apportionment an estimate to be boards or made or by by officers, designated ais by area, frontage superficial question upon courts Almost .are all of the earlier agreed. cases asserted that the discretion in the legislative apportionment burdens extended this and such far, is still legislation upheld most the States. But since the when period express provi- sions have been made in of the state many constitutions requir- and ing uniformity taxation, several equality courts of great either force of respectability, or in the requirement spirit it, that perceiving received actually each parcel was the contributing property, onlyprinciple upon which such assessmentscan and that justly rest, other rule unequal, oppressive have denied the arbitrary, unlimited discretion and .scope legislative and asserted- what power, n must upon principle as the regarded and reasonable doc- just that trine, the cost of a local can be assessed improvement upon to the particular only extent that it is specially per culiarly since the excess ¡ beyond,that is benefited benefit at ymmicipality must lárge, be borne general P' 2 Mun. treasury Dillon, 4th ed. Corp. p. §-761. I with the court in agree and Dillon saying Cooley text-writers of high authority But learning accuracy. I cannot that the extracts agree found in their treatises TERM, 1900. Harlan, state their views correctly fully upon opinion partic-
ular before now us.
The declaration court the decision Norwood v. Baker burdens placed ground imposed Mrs. Baker’s amounted I sub is, confiscation view mit, of our decision. The word “confis inadequate found cation” is not to be that case. The - afifirmance of that case was judgment the sole thatJ the assessment was made under a rule that ground abso *35 excluded as to Such rule lutely any inquiry special benefits. was held to be void because it rested that to theory meet the cost of a street could be opening property private, spe assessed ftir an amount in cially substantial' excess of special from the made in in accruing improvement terest of the general public.
If it be inferred from what is said in the may of the court in this case that in assessment the con- special resulting of the entire not assessed be sustained, property might fiscation I have to that does occur confiscation say when manifestly assessed is all to meet taken the cost of a property specially to be beneficial to the supposed public improvement specially if is owner. So assessed bene- property beyond special fits there confiscation to the extent such excess. accruing, if in not be But will what be- confiscation, any fornq tolerated, comes of in in the broad declarations some of the opinions cited cases effect that may prescribe' legislature the extent to which benefited specifically private property a local in and that action that re- public improvement, cannot of the be the owner assessed spect questioned if even that the amount exceeded the assessed spe- appeared cial if it or even benefits, that appeared improve- c^st ment exceeded the value of the assessed ? Are towe understand from the the deci- now interpretation placed upon v. Baker Norwood that the courts for the may, pro- sion tection interfere when a owner, legislative determination but confiscation, amounts pure simple, cannot. interfere assessed is in when the amount sub- they stantial excess of the benefits received?
FRENCH v. BARBER ASPHALT PAVING CO. Hablan, McKenna, dissenting. cases to in some of the referred the opinion judgment, my to thé declarations as contain the court genéral powers the matter of assessments which went legislature to be said in order what necessary far beyond dispose inter- declarations, Those cases. literally respective in this country seem recognize preted, in the matter of absolute, arbitrary power possessing cost of assessments to meet public improvement imposed matter of taxation, all the —indeed, belongs power, in some of the Parliament of Britain. Great opinions of Chief Mar- these cases recall the wise observations Justice he said: It is a when, for maxim shall, court, speaking not to disregarded expressions, every opinion, general to be taken the case which those ex- are connection with are used. If case, pressions they go beyond they may but control the in a subse- respected, ought judgment suit 'when the very decision. The quent point presented reason for maxim is obvious. The question actually before the court is with investigated care, considered in its full extent. Other serve to principles illustrate it considered their relation to the case to be decided, but their on all-other bearing cases is possible seldom inves- completely *36 Cohens v. tigated.” Virginia, Wheat. 264, 399. We live under a Constitution which is the law of the supreme land. It the of enumerates powers government, limita- prescribes tions and restrictions upon legislative to the authority prop- .as of citizens. Some of erty these limitations and restrictions of apply equally Congress the United States and to the of the States. If legislatures it be true that the only ground which a upon assessment can special be legally imposed upon to meet particular private property cost of a public improve- ment is that such receives, or property be may held reasonably benefits not receive, special shared general public— no I one, take will it, dispute soundness of that princi- that, if it be true ple cannot be property to bear made —and a of such costs in proportion substantial of excess bene- special fits, follows that the necessarily owner of en- is property titled protection against rule legislative requirement TERM, 1900. Wiiitb Hablan, bis a burden than property greater can be law- puts it. How can he obtain such
fully imposed protection ? To courts that he cannot do except through so is to say that the an absolute legislature unlimited say possesses over of is inconsistent with property rights supreme of land. Is a law the it to become canon of constitutional con- struction that the courts interfere when the authorizes assessment that will special amount to the confis- cation of the entire but will not interfere assessed, confiscation when the is to a only limited, a material, although ? In other extent words, there to abe so far as difference, of the courts powers between concerned, confiscation, under of piti-. guise entire taxation, zen and confiscation of of it ? only part
I have assessments where the amount as- spoken special substantial excess benefits. sessed The words special ” because, substantial excess have been used the language cited, court exact- Baker, Norwood already equality and for not attainable, reason the taxation always unless it be of benefits, over a substantial cost excess of special not be a court when character, ought regarded equity of a enforcement assess- its aid restrain invoked indeed, Norwood v. ment. I do !doubt— has a wide discretion in the legislature Baker concedes—that cost of to meet the assessments improving cases of special that the I owner abutt- But deny public highways. opening amount that the showing can ing precluded excess benefits accru- him is in substantial assessed upon such excess the burden extent of To the his property. ing benefit the for whose improve- borne community should J., C. Church, the views I concur made. ment is entirely H¿ Y. 506. said: The 69 N. in Guest v. Brooklyn, expressed necessity, is based public street make public right - improve- it. To force expensive should pay or a owners,’ majority the consent ment them] [against *37 consent, their compel owners against a few property upon of delusive the under pretense the entire expense, them to pay their property, benefit conferred a specific corresponding v. CO. BARBER ASPHALT PAYING- Hablan-, ani> of to a under ought perpetuated despotism species which to with claims protect property equally government it manifest Besides its the injustice, deprives life liberty. from con- of protection citizen principal the practically [aside the taxation, viz., unjust stitutional respon- restraints] against for his to his acts constituents. of the representative sibility are where all affected, equally As taxation respects general no' beneficial this but has application preventing operates, taxation for majority local public improvements. or even to, improve-
never backward demanding, consenting without themselves.” expense ments they may enjoy 4th ed. note 2 Dillon’s Mun. Corp. the court this case was determined an-
At the same time Davidson, v. from appeal nounced Wight judgment In its of the District Columbia. opin- the Court Appeals to Norwood ion in that case it makes some reference Baker refer in to which is appropriate opinion. The court, v. Davidson, There Wight says: Norwood v. Bakery [in was as of á question validity village ordinance, which the entire cost and expenses imposed a street, opening irre- whether the spective question property benefited by of the street. The opening the State had not defined designated abutting as benefited had the nor authorities improvement, village made any inquiry into the benefits. There been no having legislative determination to what as lands were benéfited, no in- inquiry councils, stituted village no afforded to opportunity owner be heard on abutting this court subject, held the exaction the owner of private property cost of substantial public improvement excess of the special to him is, extent accruing excess, taking, under .taxation, guise private use affirmed the compensation, decree of accordingly the Circuit Court the United States, which, while preventing enforcement particular assessment left question, free make a new village assessment plaintiff’s for so much of abutting expense opening street would be found, due and proper to.be inquiry,
VOL. olxxxi—24 *38 TERM, 1900. dissenting’. Habeas, This benefits special accruing property.” equal to that, in Norwood v. Baker, the assessment language implies rendered without sanction hence legislative judgment court; whereas, distinctly unmistakably appears that from that case what of Norwood village did it to was under a enactment legislative authorizing open the street there and assess the cost the abutt question upon to its ing property, special according regard frontage, benefits, and without that And it subject. any inquiiy upon ride, was because and because of this established only that the court invalid. held the assessment I sub this case from mit cannot be Norwood v. distinguished Baker that the upon ground ¿Norwoodproceeded village sanction. without legislative should case my opinion present judgment
reversed the assessment ground question under a all 'made rule as excluding special statutory inquiry on the avenue benefits and abutting requiring if it, cost even such cost the entire meet paving of the accruing it; was in excess substantial amake new assess- to obtain.authority Kansas City leaving for so much cost of ment abutting property due excess be found inquiry paving to such other Any benefits accruing property. involve a departure Iwill, think, grave judgment arbitrary against legis- private property protect principles of taxation. lative exerted under guise