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proceeding according to law, were not to blame.

The record shows that on September 19, 1899, the court passed an order nisi confirming the verdict, award, and assessment of benefits, unless cause to the contrary should be shown on or before the 4th day of the following month, and directing service of a copy of the order nisi on the owners of the land condemned and on the owners of the land assessed in said verdict. It also appears that the appellees were served with this copy, and that they accordingly filed exceptions to the finding of the jury and to the confirmation of the award, on October 4, 1899.

property without due process of law, con-
trary to the 14th Amendment to the Con-
stitution of the United States. Baker v.
Norwood, 74 Fed. Rep. 997. In the opinion
of this court it was said:
"The plaintiff's suit proceeded upon the
ground, distinctly stated, that the assess-
ment in question was in violation of the
14th Amendment providing that no state
shall deprive any person of property
without due process of law, nor deny to iny
person within its jurisdiction the equal pro
tection of the laws, as well as of the Bill
of Rights of the Constitution of Ohio."

It will therefore be perceived that there the court below and this court were dealing On the 18th of November, 1899, after with a question arising under the 14th hearing, the supreme court of the District Amendment of the Constitution of the passed a decree overruling the exceptions | United States, which, in terms, operates and confirming the verdict of award and as-only to control action of the states, and sessments made by the jury. does not purport to extend to authority exercised by the government of the United States.

Upon the authorities heretofore cited it would therefore appear that the act of Congress of March 3, 1899, was a valid enactment, and that the proceedings thereunder were regular, and constituted due process of law, unless reasons for a different conclusion can be found in the opinion of the court of appeals, which reversed the decree of the supreme court of the District, and ordered the dismissal of the petition.

What, then, was the reasoning upon which the court of appeals proceeded" It was thus stated in the opinion

In the present case is involved the constitutionality of an act of Congress regulating assessments on property in the District of Columbia, and in respect to which the jurisdiction of Congress, in matters municipal as well as political, is exclusive, and not controlled by the provisions of the 14th Amendment. No doubt, in the exercise of such legislative powers, Congress is subject to the provisions of the 5th Amendment to the Constitution of the United States, which provide, among other things, that no person shall be deprived of life, liberty, or property without due process of law, nor shall private property be taken for public use without just compensation. But it by no means necessarily follows that a long and consistent construction put upon the "1. With respect to the first of these 5th Amendment, and maintaining the valid questions, we think that it has been con-ity of the acts of Congress relating to pubclusively determined for us by the decision of the Supreme Court of the United States, in the case of Norwood v. Baker, 172 U. S. 269, 43 L. ed. 443, 19 Sup. Ct. Rep. 187.

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

"As we understand that decision, which undoubtedly has the effect of greatly qualifying the previous expressions of the same high tribunal upon the matter of special as sessments, the limit of assessment on the private owner of property is the value of the special benefit which has accrued to him from the public improvement adjacent to his property."

But we think that the court of appeals has not correctly appraised the decision in Norwood v. Baker, and that, on examination, that decision and the reasoning on which it is founded will not be found to be applicable to the case now before us.

That case came to this court on an appeal from the circuit court of the United States for the southern district of Ohio, wherein it had been held that for a municipality of a state to condemn land for a street through the property of a single owner, and then assess back upon his abutting property the entire damages awarded, together with the costs and expenses of the condemnation proceedings, is to take private

lic improvements within the District of Columbia, is to be deemed overruled by a decision concerning the operation of the 14th Amendment as controlling state legislation.

However, we need not pursue this suggestion, because we think the court of appeals, in regarding the decision in Norwood v. Bak er as overruling our previous decisions in respect of congressional legislation in respect to public local improvements in the District of Columbia, misconceived the meaning and effect of that decision. There the question was as to the validity of a village ordinance which imposed the entire cost and expenses of opening a street, irrespective of the question whether the property was benefited by the opening of the street. The legislature of the state had not defined or designated the abutting property as benefited by the improvement, nor had the village authorities made any inquiry into the question of benefits. There having been no legislative determination as to what lands were benefited, no inquiry instituted by the village councils, and no opportunity afforded to the abutting owner to be heard on that subject, this court held that the exaction from the owner of private property of the cost of a public improve

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ment in substantial excess of the special | Amendment providing, among other things, benefits accruing to him is, to the extent of that no person shall be deprived of life, lib such excess, a taking, under the guise of tax-erty, or property without due process of ation, of private property for public use, law, nor shall private property be taken for without compensation, and accordingly af- public use without just compensation. firmed the decree of the circuit court of the "But," the court proceeds, "it by no means United States, which, while preventing the necessarily follows that a long and consistenforcement of the particular assessment in ent construction put upon the 5th Amendquestion, left the village free to make a new ment and maintaining the validity of the assessment upon the plaintiff's abutting acts of Congress relating to public improve property for so much of the expense of open-ments within the District of Columbia, is to ing the street as would be found upon due and proper inquiry, to be equal to the special benefits accruing to the property.

be deemed overruled by a decision concerning the operation of the 14th Amendment as controlling legislation." These observations That it was not intended by this decision were made to sustain the proposition that to overrule Bauman v. Ross and Parsons v. the principles announced in Norwood v. District of Columbia is seen in the opinion, Buker, 172 U. S. 269, 43 L. ed. 443, 19 Sup. where both those cases are cited, and de- Ct. Rep. 187, in reference to the validity of clared not to be inconsistent with the conclu- state enactments relating to local public imsion reached. Norwood v. Baker, 172 U. S. provements, have no necessary application to 269, 294, 43 L. ed. 443, 453, 19 Sup. Ct. Rep. a case of a like kind arising under a similar 187. Special facts, showing an abuse or dis- act of Congress relating to local public imregard of the law, resulting in an actual dep-provements in the District of Columbia. As rivation of property, may give grounds for the court does not pursue this subject, nor applying for relief to a court of equity; and express any final view upon the. question rethis was thought by a majority of this court ferred to, I refer to this part of its opinion to have been the case in Norwood v. Baker. only for the purpose of recording my dissent But no such facts are disclosed in this rec- from the intimation that what a state might ord. (not do in respect of the deprivation of prop

The second proposition upon which the cir-erty without due process of law, Congress cuit court proceeded was that sufficient no tice had not been given in respect of the assessments upon the property. This question, we think, has been disposed of by previous decisions, and has been sufficiently discussed in a previous part of this opinion.

The decree of the Court of Appeals of the District of Columbia is reversed, and the cause remanded to that court with directions to affirm the decree of the Supreme Court of the District of Columbia.

Mr. Justice Harlan (with whom concurred Mr. Justice White and Mr. Justice McKenna) dissenting:

*I am of opinion that the judgment of the court of appeals of the District of Columbia should be affirmed.

Under the act of March 3d, 1899, it was competent for the jury, without regard to special benefits, to put upon the lands abutting upon each side of the streets authorized to be opened and extended not less than one half of the entire damages found due and awarded in respect of the property taken under the 1st section of that act. It could only consider the question of benefits in respect to “adjacent" pieces or parcels of land. For the reasons stated in my dissenting opinion in French v. Barber Asphalt Paving Co. 181 U. S. 324, post, 625, 21 Sup. Ct. Rep. 625. I cannot agree that such a statutory regulation or rule is consistent with the Constitution of the United States. My views upon the general subjects of special assessments are expressed in that opinion, and need not be repeated here.

The court in the present case says that Congress has exclusive jurisdiction, municipal and political, in the District of Columbia, and is not controlled by the 14th Amendment, although it is controlled by the 5th

under the Constitution of the United States could, perhaps, do in respect of property in this District. The 5th Amendment declares that no person shall be deprived of property "without due process of law." The 14th Amendment declares that no state shall deprive any person of property "without due process of law." It is inconceivable to me that the question whether a person has been deprived of his property without due process of law can be determined upon principles applicable under the 14th Amendment but not applicable under the 5th Amendment, or upon principles applicable under the 5th and not applicable under the 14th Amendment. It seems to me that the words "due process of law" mean the same in both Amendments. The intimation to the contrary in the opinion of the court is, I take leave to say, without any foundation upon which to rest, and is most mischievous in its tendency.

The court withdraws this case from the rule established in Norwood v. Baker upon the ground that the legislature of Ohio "had not defined or designated the abutting property as benefited by the improvement." But this is a mistake; for, as plainly stated in the opinion in that case, the state, by stat ute, had authorized villages to establish streets and highways, and to meet the cost of such improvements by special assessments on the abutting property, according to frontage, without regard to special benefits accruing to the property so assessed. And, to repeat what I have said in French v. Barber Asphalt Paving Co., just decided (181 U. S. 324, post, 625, 21 Sup. Ct. Rep. 625); it was because, and only because, of this rule, prescribed by the legislature, that the state enactment was condemned as unconstitutional. The enactment, under which the council of Norwood proceeded, put upon the abutting

property, when the municipality proceeded under the front-foot rule, the entire cost of opening a street; precluding, by a rule established for such cases, the owner of the property from showing that the cost was in excess of special benefits and was confiscatory to the extent of such excess. Norwood v. Baker expressly rejected the theory that of the entire cost of a public highway, in which the whole community was interested, could be put, under legislative sanction, on the abutting property, where such cost was in substantial excess of the special benefits accruing to the property assessed.

00

The court in this case says that "special facts showing an abuse or disregard of the law, resulting in an actual deprivation of property, may give grounds for applying for relief to a court of equity." What this means, when taken in connection with what has been said and intimated by the court in French v. Barber Asphalt Paving Co.,-especially when considered in the light of the broad declarations in other cited cases as to legislative power,-I confess I am unable to say. What "special facts," in the case of special assessments to meet the cost of a public improvement, would show an abuse of the law? What is meant by the words "an actual deprivation of property? If private property abutting on a street be assessed for the cost of improving the street in excess of special benefits accruing to such property, is the assessment to the extent of the excess such an abuse of the law or such an actual deprivation of property as would justify the interference of a court of equity? In Norwood v. Baker this question was answered in the affirmative. Whether that doctrine is to remain the court does not distinctly say, either in the present case or in any of the cases relating to special assessments just determined.

said district, either according to valuation or to superficial area or frontage.

[No. 378.]

Argued and Submitted February 25, 26, 27. 1901. Decided April 29, 1901.

IN ERROR to the Supreme Court of the State of North Dakota to review a decision affirming a judgment dismissing a complaint in an action for an injunction against an assessment. Affirmed.

See same case below, 82 N. W. 732.

Statement by Mr. Justice Shiras: This was an action brought by Mortimer Webster in the district court in and for the county of Cass and state of North Dakota, against the city of Fargo; James M. Fargo, as auditor of said city; D. C. Ross, as treasurer, and G. J. Olson, as auditor, of Cass county, in which the plaintiff sought to enjoin the defendant from enforcing an assessment for grading and paving against certain lots or pieces of land belonging to the plaintiff, and abutting on the streets of the city of Fargo.

It was admitted, and, indeed, alleged, in the complaint, that "each and every of the acts and proceedings required to be done and taken by the statutes of said state of North Dakota in making and return of said assessment, as aforesaid, were duly taken and done," but it was alleged that the state stat utes, under which the work was done and the assessment made, were in violation of the 14th Amendment of the Constitution of the United States, in that they prescribed for paying for grading and paving the streets, by an assessment upon abutting lots by the foot-front rule.

The defendants demurred to the complaint I submit that if the present case is to be upon the ground that it did not state facts distinguished from Norwood v. Baker it suflicient to constitute a cause of action. should be done upon grounds that do not in- The trial court sustained the demurrer, and, volve a misapprehension of the scope and ef- as the plaintiff declined to amend, entered a fect of the decision in that case. If Con- judgment dismissing the complaint. From gress can, by direct enactment, put a special this judgment an appeal was taken to the assessment upon private property to meet supreme court of the state of North Dakota, the entire cost of a public improvement which court affirmed the judgment of the made for the benefit and convenience of the district court dismissing the complaint. A entire community, even if the amount so as-writ of error from this court was thereupon sessed be in substantial excess of special ben-allowed by the Chief Justice of the supreme efits, and therefore, to the extent of such ex- court of the state of North Dakota. cess, confiscate private property for public use without compensation, it should be declared in terms so clear and definite as to leave no room for doubt as to what is intended.

(181 U. S. 394)

MORTIMER WEBSTER, Plff. in Err.,

บ.

CITY OF FARGO and Others.

Constitutional law assessment for provements.

Messrs. Seth Newman and B. F. Spalding for plaintiff in error.

Mr. S. B. Pinney submitted the case for defendants in error, and Messrs. John E. Greene and H. F. Miller were with him on the brief.

Mr. Justice Shiras delivered the opinion of the court:

It is conceded in this record that the plaintiff in error has no ground to complain im-of any discrimination attempted against him, either in the statutes of the state or in It is within the power of the legislature of a the proceedings thereunder, whereby the tax state to create special taxing districts, and in question was assessed against his properto charge the cost of a local improvement, ty. The sole contention on his behalf is in whole or in part, upon the property in that, under the decision of this court in the

case of Norwood v. Baker, 172 U. S. 269, 43 | ward and Blaine avenues in the city of DeL. ed. 443, 19 Sup. Ct. Rep. 187, all special assessments upon the basis of frontage are in violation of the 14th Amendment to the Constitution of the United States, in that they may result in the taking of property without due process of law.

But we agree with the supreme court of North Dakota in holding that it is within the power of the legislature of the state to create special taxing districts, and to charge the cost of a local improvement, in whole or in part, upon the property in said district, either according to valuation or superficial area or frontage, and that it was not the intention of this court, in Norwood v. Baker, to hold otherwise.

troit. The paving in question was done in pursuance of certain statutes of the state of Michigan, constituting the charter of the city of Detroit, and of ordinances of the common council of said city.

There was no allegation or proof that, in the proceedings which resulted in the mak ing of the improvements and in assessing complainant's lots for a portion of the costs thereof, there had been any disregard of the provisions of the statutes and ordinances, or that complainant's property had been charged differently from that of the other lot owners. Nor was it alleged that the portion or share of the cost of making the improvements assessed against complainant's property in point of fact exceeded the bene fits accruing to each property by reason of such paving.

It is unnecessary to enter upon an examination of the authorities, as that has recent ly been done in the case of French v. Barber Asphalt Paving Co. 181 U. S. 324, post, 625, The only foundation of the bill was the al21 Sup. Ct. Rep. 625; and, upon the author- legation that "the said statutes and ordiity of that case, the judgment of the Su-nances providing for the paving and grading preme Court of North Dakota is affirmed.

For dissenting opinion, see Cass Farm Co. v. Detroit, 181 U. S. -, post, 645, 21 Sup. Ct. Rep. 645.

(181 U. S. 399)

CITY OF DETROIT and Others, Appts.,

v.

RALZEMOND A. PARKER.

of streets are in violation of the rights of the complainant under the 14th Amendment of the Constitution of the United States, in that they do not provide for any hearing or review of assessments at which the property owner can show that his property was not benefited to the amount of such assessments, but that the same shall be made arbitrarily according to the foot front."

The case was thus disposed of by the learned judge in the circuit court:

"It is the claim of complainant that the

Constitutional law-assessments for im- charter, in the provisions mentioned (that

provements.

An assessment of the cost of a street Improvement, made arbitrarily according to the front foot, is not in violation of the Constitution of the United States for failure to provide any hearing or review thereof at which the property owner can show that his property

was not benefited to the amount of the assessment.

[No. 411.]

Argued February 25, 26, 27, 1901. Decided case of the village of Norwood v. Baker, 172

April 29, 1901.

the entire cost of the street improvements, except for street and alley crossings, etc., shall be assessed against the abutting property by the fronting measurement, without any regard to the special benefits received by the property or the relation to the cost of the improvement), is in conflict with the 14th Amendment of the Constitution of the United States, and is null and void; that such legislation constitutes taking of property without just compensation, and is a denial of equal protection of the law. The U. S. 269, 43 L. ed. 443, 19 Sup. Ct. Rep. 187, is the foundation for this position, and seems The supreme court of Michigan has declined to depart from its decisions sustaining the constitutionality of like statutes providing for assessments per foot front, on the ground that the ruling in Baker v. Norwood must be confined to the facts of that case and have no application to an assessment for paving With all respect for that learned tribunal, I, am constrained under the cases cited to a different opinion of the decision, and to fol· low the Supreme Court of the United States upon the construction of the 14th Amendment of the Federal Constitution."

APPEAL from the Circuit Court of the fully to sanction it.

United States for the Eastern District of Michigan to review a decision granting an injuction against assessments and tax sales. Reversed.

See same case below, 103 Fed. Rep. 357.
The facts are stated in the opinion.
Messrs. Timothy E. Tarsney and C. D.
Joslyn for appellants.

Mr. Elbridge T. Bacon, for appellee.

Mr. Justice Shiras delivered the opinion of the court:

This was the case of a bill in equity filed in the circuit court of the United States for the eastern district of Michigan by Ralzemond A. Parker, a citizen of the state of Michigan, against the city of Detroit and certain officers of said city, seeking to set aside certain assessments and tax sales of complainant's land for the paving of Wood

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Accordingly a decree was entered in accordance with the prayer of the bill, and a perpetual injunction was issued. Parker v. Detroit, 103 Fed. Rep. 357.

This court has recently decided, in the case of Cass Farm Co. v. Detroit, affirming a judgment of the supreme court of Michigan,

that "it was not the intention of the 14th | council of the city declaring the work of pavAmendment to subvert the systems of the ing the street, and with a pavement of a destates pertaining to general and special tax- fined character, to be necessary, which resoation; that that Amendment legitimately lution was first recommended by the board operates to extend to the citizens and resi- of public works of the city. This resoludents of the states the same protection tion was thereupon published for ten days against arbitrary state legislation affecting in the newspaper doing the city printing. life, liberty, and property, as is afforded by Thereafter the owners of a majority of front the 5th Amendment against similar legisla- feet on that part of the street to be improved tion by Congress; and that the Federal had the right, under the charter, within courts ought not to interfere when what is thirty days after the first day of the publi complained of is the enforcement of the set- cation of the resolution, to file a remon tled laws of the state, applicable to all per- strance with the city clerk against the prosons in like circumstances and conditions, posed improvement, and thereby to devest but only when there is some abuse of law, the common council of the power to make amounting to confiscation of property or dep- the improvement, and such property owners rivation of personal rights, as was in- had the right by filing within the same peristanced in the case of Norwood v. Baker." od a petition so to do, to have such street 181 U. S., post, 645, 21 Sup. Ct. Rep. 645. improved with a different kind of material Like conclusions were reached, after a full or in a different manner from that specified consideration of the authorities, in French in such resolution. In this instance neither v. Barber Asphalt Paving Co. 181 U. S. 324, such a remonstrance nor petition was filed, post, 625, 21 Sup. Ct. Rep. 625, and in Wight and the common council, upon the recom v. Davidson, 181 U. S. 371, ante, 616, 21 Sup. mendation of the board of public works, enCt. Rep. 616. acted an ordinance requiring the construction of the pavement. The charter requires that a contract for such work shall be let to the lowest and best bidder. Thereupon bids for the work were duly advertised for, and best bidder therefor, a contract was, on and the plaintiff company being the lowest July 31, 1894, entered into between Kansas City and the plaintiff for the construction of said pavement.

The decrce of the Circuit Court is reversed, and the cause is remanded to that court with directions to dismiss the bill of complaint.

For dissenting opinion see Cass Farm Co. v. Detroit, 181 U. S. —, post, 645, 21 Sup. Ct. Rep. 645. (181 U. S. 324) MARGARET FRENCH and Others, Piffs.

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The contract expressly provided that the work should be paid for by the issuance of special tax bills, according to the provisions of the Kansas City charter, and that the city should not in any event be liable for or on account of the work. The cost of the pavement was apportioned and charged against the lots fronting thereon according to the method prescribed by the charter, which is that the total cost of the work shall be apportioned and charged against the lands abutting thereon according to the frontage of the several lots or tracts of land abutting on the improvement. The charge against cach lot or tract of land was evidenced by

Argucd February 25, 26, 27, 1901. Decided a tax bill. The tax bill representing the as

April 29, 1901.

IN ERROR to the Supreme Court of the State of Missouri to review a decision affirming a judgment for plaintiff in an action to enforce the lien of a tax bill for the cost of paving. Affirmed.

*

See same case below, 58 S. W. 934.

Statement by Mr. Justice Shiras: This was a suit instituted in the circuit court of Jackson county, Missouri, by the Barber Asphalt Paving Company, a corporation whose business it was to construct pavements composed of asphalt, against Margaret French and others, owners of lots abutting on Forest avenue in Kansas City, for the purpose of enforcing the lien of a tax bill issued by that city in part payment of the cost of paving said avenue.

The work was done conformably to the requirements of the Kansas City charter, by the adoption of a resolution by the common 21 S. C.-40.

sessment against each lot was, by the char

ter made a lien upon the tract of land against which it was issued, and was prima facie evidence of the validity of the charge represented by it. Such lien can be enforced only by suit in a court of competent jurisdiction, against the owners of the land charged. No personal judgment was authorized to be rendered against the owner of the land. The right was expressly conferred on the owner of reducing the amount of the recovery by pleading and proving any mistake or error in the amount of the bill, or that the work was not done in a good and work. manlike manner.

The defendants pleaded and contended that the contract offered in evidence was a contract to construct the pavement and maintain and keep the street in repair for five years, and was contrary to the charter of Kansas City, void, and of no effect; and that the charter of Kansas City purports to

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