125 Iowa 358 | Iowa | 1904
But, however this may be, and whatever independent conclusion we might reach in this particular case in view of our former holdings, is of little consequence if it be true that this case is controlled by the Norwood-Baker Case. The profession is familiar with the issues and facts in that case, but there may be some question as to. the extent to which the opinion of the majority goes. In .the second edition of Elliott on Hoads and Streets, section 558, it is said, speaking of the Norwood-Baker Case: “ But the Supreme Court of the United States has recently held that an assessment in substantial excess of the special benefit is invalid, and that the power of the Legislature in such matters is not unlimited. The actual decision in the case *- does not go so far as it has sometimes been supposed to go-. * * * We think it is clearly an authority to the effect that a particular assessment is invalid where it is in substantial excess of the benefits, and there is no right to a hearing on which it can be changed, especially where it is physically impossible that the particular property can be benefited to such an extent.” And the author adds: “ But it does not necessarily follow that the statute itself is unconstitutional merely because it lays down a general, rule for determining the special benefits in the first instance, whether by frontage or by any other proper system.” In the Norwood-Baker Case it is said: “ The plaintiff’s suit proceeded upon the ground, distinctly stated, that, the assessment in question "was in violation of the fourteenth amendment, providing that no State shall deprive any person of- property without due process of law, nor deny to any person within its jurisdiction the equal pro
Speaking of the power of the Legislature in that case, Mr. Justice Harlan said:
But the power of the Legislature in these matters is not unlimited. There is a point beyond which the legislative department, even when exercising the power of taxation, may not go, consistently with the citizen’s right of property. As already indicated, the principle underlying special assessments to meet the cost of public improvements is that the property upon which they are imposed is peculiarly benefited, and therefore the owners do not, in fact, pay anything in excess of what they receive by reason of such improvement. But the guaranties for the protection of private property would be seriously impaired if it were established as a rule of constitutional law that the imposition by the Legislature upon particular private property of the entire cost of a public improvement, irrespective of any peculiar benefits accruing to the owner from such improvement, could not be questioned by him in the courts of the country. „ It is one thing for the Legislature to prescribe it as a general rule that property abutting on a street opened by the public shall be deemed to have been specially benefited by such improvement, and therefore should specially contribute to the cost incurred by the public. It is quite a different thing to lay it down as an absolute -rule that such property, whether it is in fact benefited or not by the opening of the street, may be assessed by the front foot for a fixed sum representing the whole cost of the improvement, and without any right in the property owner to show, when an improvement of that kind is made, or is about to be made, that the sum so fixed is in excess of the benefits received. In our judgment, the exaction from the owner of private property of the cost of a public improvement in substantial excess of the special benefits accruing to him is, to the extent of such excess, a taking, under the guise of taxation, of private property for public use without 'compensation. We say “ substantial excess,” because exact
In French v. Asphalt Paving Co., 181 U. S. Rep. 324 (21 Sup. Ct. 625, 45 L. Ed. 879), there is a general review of the adjudications on the subject, and the following quotation from 2 Dillon, Municipal Corporations (4th Ed.) section 752, is cited with approval, and may be said to express the view of the majority of the court: “ The courts are very generally agreed that the authority to require the property specially benefited to bear the expense of local improvements is a branch of the taxing power, or included within it. * * * Whether the expense of making such improvements shall be paid out of the general treasury, or be assessed upon the abutting property or other property specially benefited, and, if the latter mode, whether the assessment shall be upon all property found to be benefited or alone upon the abutters, according to frontage or according to the area of their lots, is-, according to the present weight of authority, considered to be a question of legislative expediency.” This rule, it will be seen, fully recognizes the principle that the assessment must be made on t-he theory of special benefits to the property assessed, whether all property benefited be assessed or not. This is apparent not only from the language used, but from the same author’s views expressed in section 761 of the same work, where he says:
Special benefits to the property assessed — that is, benefits received by it in addition to those received by the community at large — is the true and only just foundation upon which local assessments can rest, and to the extent of special benefits it is everywhere admitted that the Legislature may authorize local taxes or assessments to be made. When not restrained by the Constitution,of the particular State, the Legislature has a discretion commensurate with the broad domain of legislative power in making provisions for' aseer
In the French Case) the majority opinion distinguishes it from the Norwood-Baker Case as follows:
It may be conceded that courts of equity are always open to afford a remedy where- there is an attempt, under the guise of legal proceedings, to deprive a person of his life, liberty, or property without due process of law. And such, in the opinion of a majority of the judges of this court was the nature and effect of the proceedings in the case of Nor-wood v. Baker. But there is no such a state of facts in the present case. Those facts are thus stated by the court of Missouri: “ The work done consisted of paving, with.asphaltum the roadway of Forest avenue in the said city, thirty-six feet in width, from Independence avenue to Twelfth street, a distance of one-half mile. Forest avenue is one of the oldest and best-improved residence streets in Kansas City, and all the lots abutting thereon front the street and extend back therefrom uniformly to the depth of an ordinary city lot to an alley. The lots are all improved and used for residence purposes, and all of the lots are substantially on the grade of the street as improved, and are similarly, situated with respect to the asphalt pavement. The structure o'f the pavement along its entire extent- is uniform in character and quality. There is no showing that there is. any difference in the value of any of the lots abutting upon the improvement.
Said cost is to be assessed as provided by the ordinances of said city, against the private property fronting or abutting on the street or streets upon which said improvement is made,' and said assessment shall be payable within the time and in the manner as provided by an ordinance of the city relating to making contracts for paving and curbing streets and alleys, and the construction of sewers and providing for the manner of making and collecting assessments and issuing certificates for the payment thereof, passed February 22, 1889. And it is further agreed that the said assessment certificates shall be received by said Lennan & O’Brien in full payment and compensation for all work done by them under this contract and without recourse to the city of Des Moines.
And while we do not understand from the appellee’s argument that it seriously denies the liability of the city in case the assessment is held invalid, there is a suggestion therein that the stipulation that the assessment certificates shall be received in full payment for all work done without recourse on the city relieves the city from all liability on account of its invalid assessment. This position is not tenable, however. The ordinance under which the work was done provided that the cost thereof might be taxed against the private property abutting on the street,'and for mailing and collecting assessments, and for issuing certificates in payment therefor. The contract provided that the cost was to be assessed and paid as provided in the ordinance, but it was not contemplated by either party thereto that the city would make an assessment against abutting property which could not be enforced, and we think it must be held that the latter clause of the contract means nothing more than the acceptance of certificates which are legal, and representing an assessment valid and enforceable. Such was the holding, in
The case is reversed on both appeals.— Reversed.