A resident in and citizen of Chicago, in Illinois, was the owner
of certain lots in Des Moines, in Iowa, which were assessed by the
municipal authorities in that place to an amount beyond their value
for the purpose of paving the street upon which they abutted. The
statutes of Iowa authorized a personal judgment against the owner
in such cases.
Page 173 U. S. 194
He filed a petition to have the assessment set aside, to obtain
an injunction against further proceedings for the sale of the
property, and to obtain a judgment that there was no personal
liability against him for the excess. This petition contained no
allegation attacking the validity of the assessment by reason of
any violation of the federal Constitution, and there was nothing in
the record to raise such federal right or claim beyond the mere
allegation in the petition that
"the amount of said tax is greater than the reasonable market
value of said lots, whether considered singly or together, the
assessment against each particular lot being greater in amount than
the value of such particular lot and the aggregate assessment being
greater in amount than the reasonable market value of all of said
lots taken together, and that said defendants are seeking to
enforce as against plaintiff not merely a sale of said lots, but
also to compel plaintiff to pay the full amount of said tax
regardless of whatever sum said lots may be sold for and regardless
of the actual value of the same."
The contractor for the pavement set up his right to a judgment
on certificates given him for the work which had been done, which
were made a lien upon the abutting lots. The trial court dismissed
the petition and gave judgment in favor of the contract. In the
supreme court of the state, it was assigned as error that
"the court erred in holding and deciding that plaintiff was
personally liable to said Des Moines Brick Manufacturing Company
for so much of said special tax or assessment as could not or would
not be realized by a sale of the sixty lots in question on special
execution, and in ordering and adjudging that a general execution
should issue against plaintiff and in favor of said Des Moines
Brick Manufacturing Company for the balance of such tax or
assessment, and further that, as plaintiff was at all times a
nonresident of the Iowa and had no personal notice or knowledge of
the assessment proceedings, that the imposition of a personal
liability against him, in excess of the value of all the lots, was
not due process of law and was in contravention of the provisions
on that subject of the Fourteenth Amendment to the Constitution of
the United States, as well as in contravention of the provisions of
the Constitution of the State of Iowa on the same subject."
Held that this Court was confined to the consideration
of the question as to the validity of the personal judgment against
the plaintiff in error, and that, without deciding what the effect
of the proceedings would have been if the plaintiff had been a
resident in Iowa, the state had no power to enact a statute
authorizing an assessment upon real estate for a local improvement
and imposing upon its owner, a nonresident of the state, a personal
liability to pay such assessment.
The petition in this case was filed by the plaintiff in error to
set aside certain assessments upon his lots in Des Moines, in the
State of Iowa, which had been imposed thereon for the purpose of
paying for the paving of the street upon which the lots abutted,
and to obtain a judgment enjoining proceedings
Page 173 U. S. 195
towards their sale and adjudging that there was no personal
liability to pay the excess of the assessment above the amount
realized upon the sale of the lots.
The petition alleged that the petitioner was at all times during
the proceedings mentioned a resident of Chicago, in the State of
Illinois, and that he had no actual notice of any of the
proceedings looking towards the paving of the street upon which his
lots abutted; that the street was paved under the direction of the
common council, which decided upon its necessity, and the expense
was, by the provisions of the Iowa statute, assessed upon the
abutting property, and the lot owner made personally liable for its
payment; that the expense of the improvement was greater than the
value of the lots assessed, and the common council knew it would be
greater when the paving was ordered.
Various other facts were set up touching the invalidity of the
assessment upon the lots, but no allegation was made attacking its
validity by reason of any violation of the federal Constitution.
Under stipulation of the parties, various allegations of fraud upon
the part of the members of the common council, which had been
included in the petition, were withdrawn, and the allegations of
the petition as thus amended were not denied.
The contractor who did the work of paving the street was made a
party to this proceeding, and he set up a counterclaim asking that
the certificates given him by the city in payment for his services,
and which by statute were made a lien upon the lots abutting upon
the street, might be foreclosed, and the lots sold, and a personal
judgment pursuant to the same statute rendered against the
plaintiff in error.
By stipulation, certain motions, which were made to strike out
allegations in the petition, were treated as demurrers to the
petition, and the case was thus placed at issue.
Upon the trial, the District Court of Polk County gave judgment
dismissing the petition, with costs ,and in favor of the contractor
on his counterclaim, foreclosing the lien of the latter and
ordering the sale of the lots, and the judgment also provided for
the issue of a personal or general execution
Page 173 U. S. 196
against the plaintiff in error to collect any balance remaining
unpaid after sale of the lots.
Plaintiff took the case to the state supreme court, and there
made an assignment of errors, one of which is as follows:
"The court erred in holding and deciding that plaintiff was
personally liable to said Des Moines Brick Manufacturing Company
for so much of said special tax or assessment as could not or would
not be realized by a sale of the sixty lots in question on special
execution, and in ordering and adjudging that a general execution
should issue against plaintiff and in favor of said Des Moines
Brick Manufacturing Company for the balance of such tax or
assessment, and further that as plaintiff was at all times a
nonresident of the State of Iowa, and had no personal notice or
knowledge of the assessment proceedings, that the imposition of a
personal liability against him, in excess of the value of all the
lots, was not due process of law, and was in contravention of the
provisions on that subject of the Fourteenth Amendment to the
Constitution of the United States, as well as in contravention of
the provisions of the Constitution of the State of Iowa on the same
subject."
The supreme court affirmed the judgment of the district court,
and plaintiff brought the case here by writ of error.
MR. JUSTICE PECKHAM, after stating the facts, delivered the
opinion of the Court.
The only one of the assignments of error made in the state
supreme court which has reference to any federal question is the
one set forth in the statement of facts, and it will be seen that
such assignment relates solely to the validity of the provision for
the personal liability imposed upon plaintiff in error by the
judgment of the district court.
Page 173 U. S. 197
None of the other assignments of error involves any federal
question.
In the brief for plaintiff in error in this Court, it is said
that the
"counsel for plaintiff in error in the state court seem to have
relied upon one single proposition only as involving a federal
question, to-wit: as plaintiff was at all times a nonresident of
the State of Iowa, and had no personal notice or knowledge of the
assessment proceedings, the imposition of the personal liability
against him in excess of the value of all the lots was not due
process of law, and was in contravention of the provisions upon
that subject of the Fourteenth Amendment of the Constitution of the
United States."
The counsel, however, does not confine himself in this Court
solely to a discussion of the federal question which was contained
in the assignment of error above set forth, and which was argued in
the court below, regarding the validity of a personal judgment, but
counsel claims the further right to attack the validity of the
assessment upon the lots themselves, because, as he asserts, it was
laid without regard to any question of benefits, and that it
exceeds the actual value of the property assessed, and that, even
if permitted by the statute of Iowa, such an assessment constitutes
a taking, under the guise of taxation, of private property for
public use without just compensation, and is therefore void under
the federal Constitution as amounting to a taking of property
without due process of law.
This is a very different question from that embraced in the
assignment of errors and argued in the supreme court of the
state.
It is objected on the part of the defendant in error that, as
this is a review of a judgment of a state court, this second
question cannot be raised here, because it was not raised in the
courts below and was not decided by either of them.
Reference to the opinion of the supreme court of the state shows
that it was not therein discussed or decided. If the question were
only an enlargement of the one mentioned in the assignment of
errors, or if it were so connected with
Page 173 U. S. 198
it in substance as to form but another ground or reason for
alleging the invalidity of the personal judgment, we should have no
hesitation in holding the assignment sufficient to permit the
question to be now raised and argued.
Parties are not confined here to the same arguments which were
advanced in the courts below upon a federal question there
discussed. Having, however, raised only one federal question in the
court below, can a party come into this Court from a state court,
and argue the question thus raised, and also another not connected
with it, and which was not raised in any of the courts below and
does not necessarily arise on the record, although an inspection of
the record shows the existence of facts upon which the question
might have been raised?
The two questions, the one as to the invalidity of the personal
judgment and the other as to the invalidity of the assessment upon
the lots, are not in any wise necessarily connected, any more than
that they both arise out of the proceedings in paving the street
and in levying the assessment. The assessment upon the lots might
be valid, while the provision for a personal judgment might be
void, each depending upon different principles, and the question as
to the invalidity of the personal judgment might, as in this case,
be raised and argued without in any manner touching the question as
to the invalidity of the assessment upon the lots.
In
Oxley Stave Co. v. Butler County, 166 U.
S. 648, it was held that the federal question must be
specially taken or claimed in the state court; that the party must
have the intent to invoke, for the protection of his rights, the
Constitution or some statute or treaty of the United States, and
that such intention must be declared in some unmistakable manner,
and unless he do so, this Court is without jurisdiction to
reexamine the final judgment of the state court upon that matter.
See also Levy v. Superior Court of San Francisco,
167 U. S. 175;
Kipley v. Illinois, 170 U. S. 182. In
other words, the court must be able to see clearly from the whole
record that a provision of the Constitution or act of Congress is
relied upon by the party who brings the writ of error, and that the
right thus claimed by him was denied.
Bridge
Proprietors
Page 173 U. S. 199
v. Hoboken Company, 1 Wall. 116,
68 U. S. 143.
In the case at bar, no claim was made in the state court that the
assessment upon the lots was invalid as in violation of any
provision of the federal Constitution.
Nor does the record herein show by clear and necessary
intendment that the federal question must have been directly
involved, so that the state court could not have given judgment
without deciding it. In such case, it has been held that the
federal question sufficiently appears.
Green Bay &c.
Company v. Patten Paper Company, 172 U. S.
58,
172 U. S. 68,
and cases cited. In substance, the validity of the statute or the
right under the Constitution must have been drawn in question.
Powell v. Brunswick County, 150 U.
S. 433;
Sayward v. Denny, 158 U.
S. 180. The latest decision to this effect is
Capital National Bank of Lincoln v. First National Bank of
Cadiz, 172 U. S. 425.
Although no particular form of words is necessary to be sued in
order that the federal question may be said to be involved within
the meaning of the cases on this subject, there yet must be
something in the case before the state court which at least would
call its attention to the federal question as one that was relied
on by the party, and then, if the decision of the court, while not
noticing the question, was such that the judgment was, by its
necessary effect, a denial of the right claimed or referred to, it
would be sufficient. It must appear from the record that the right
set up or claimed was denied by the judgment or that such was its
necessary effect in law.
Roby v. Colehour, 146 U.
S. 153,
146 U. S. 159;
Chicago, Burlington &c. Railroad v. Chicago,
166 U. S. 226,
166 U. S. 231;
Green Bay &c. Company v. Patten Paper Company, and
Capital National Bank of Lincoln v. First Nat. Bank of Cadiz,
supra.
In all these cases, it did appear from the record that the
rights were set up or claimed in such a way as to bring the subject
to the attention of the state court. It is not enough that there
may be somewhere hidden in the record a question which, if raised,
would be of a federal nature.
Hamilton Company v.
Massachusetts, 6 Wall. 632. In order to be
available in this Court, some claim or right must have been
asserted
Page 173 U. S. 200
in the court below by which it would appear that the party
asserting the right founded it in some degree upon the Constitution
or laws or treaties of the United States. In such case, if the
court below denied the right claimed, it would be enough; or if it
did not in terms deny such right, if the necessary effect of its
judgment was to deny it, then it would be enough. But the denial,
whether expressed or implied, must be of some right or claim,
founded upon the Constitution or the laws or treaties of the United
States, which had in some manner been brought to the attention of
the court below. The record shows nothing of the kind in this
case.
A claim or right which has never been made or asserted cannot be
said to have been denied by a judgment which does not refer to it.
Hamilton Company v. Massachusetts, supra. A point that was
never raised cannot be said to have been decided adversely to a
party who never set it up or in any way alluded to it. Nor can it
be said that the necessary effect in law of a judgment which is
silent upon the question is the denial of a claim or right which
might have been involved therein, but which in fact was never in
any way set up or spoken of.
No question of a federal nature claimed under the Constitution
of the United States can be said to have been made by the mere
allegation
"that the amount of said tax is greater than the reasonable
market value of said lots, whether considered singly or together,
the assessment against each particular lot being greater in amount
than the value of such particular lot, and the aggregate assessment
being greater in amount than the reasonable market value of all of
said lots taken together, and that said defendants are seeking to
enforce, as against plaintiff not merely a sale of said lots, but
also to compel plaintiff to pay the full amount of said tax,
regardless of whatever sum said lots may be sold for and regardless
of the actual value of the same."
There is nothing else in the record which can be said to raise
this federal right or claim.
Upon these facts, we are compelled to hold that we are confined
to a discussion of the only federal question which this
Page 173 U. S. 201
record presents,
viz., the validity of the personal
judgment against the plaintiff in error. The assignment of error
above set out is broad enough to raise the question not only as to
the sufficiency of notice, but as to the validity of such a
judgment against a nonresident.
It is asserted in the petition that the defendant Dillworth, the
Treasurer of Holt County, is attempting to enforce the assessment
levied by the common council, and that he claims plaintiff in error
is personally liable for the taxes and interest, and will enforce
payment thereof unless restrained, and that plaintiff's personal
property is liable to be illegally seized for the payment of the
tax. These allegations are substantially admitted by the answers of
the defendants, except as to the illegality of the possible seizure
of plaintiff's personal property. By filing the counterclaim, the
contractor makes a direct attempt to enforce not only the lien upon
the lots, but the personal liability of the lot owner. Thus, a
nonresident, simply because he was the owner of property on a
street in a city in the State of Iowa, finds himself, by the
provisions of the state statute, and without the service of any
process upon him, laid under a personal obligation to pay a tax
assessed by the common council or by the board of public works and
city engineer, under the statute, upon his property abutting upon
the street, for the purpose of paying the expenses incurred in
paving the street, which expenses are greater than the benefit the
lots have received by virtue of the improvement. The plaintiff,
prior to the imposition of that assessment, had never submitted
himself to the jurisdiction of the State of Iowa, and the only
jurisdiction that state had in the assessment proceedings was over
the real property belonging to him and abutting on the street to be
improved. An assessment upon lots for a local improvement is in the
nature of a judgment.
It is said that the statute (Code of Iowa, sec. 478) provides
for the personal liability of the owner of lots, in a city in the
State of Iowa, to pay the whole tax or assessment levied to pay the
cost of a local improvement, and that the same statute provides
that the assessment shall also be a lien upon the respective lots
from the time of the assessment. It is also said
Page 173 U. S. 202
that the statute has been held to be valid by the Iowa Supreme
Court. This seems to be true.
Burlington v. Quick, 47 Ia.
222, 226;
Farwell v. Des Moines Brick Manufacturing Co.,
97 Ia. 286. The same thing is also held in the opinion of the state
court delivered in the case now before us.
In this case, no question arises with regard to the validity of
a personal judgment like the one herein against a resident of the
State of Iowa, and we therefore express no opinion upon that
subject. This plaintiff was at all times a nonresident of that
state, and we think that a statute authorizing an assessment to be
levied upon property for a local improvement, and imposing upon the
lot owner, who is a nonresident of the state, a personal liability
to pay such assessment, is a statute which the state has no power
to enact, and which cannot therefore furnish any foundation for a
personal claim against such nonresident. There is no course of
reasoning as to the character of an assessment upon lots for a
local improvement by which it can be shown that any jurisdiction to
collect the assessment personally from a nonresident can exist. The
state may provide for the sale of the property upon which the
assessment is laid, but it cannot, under any guise or pretense,
proceed further and impose a personal liability upon a nonresident
to pay the assessment or any part of it. To enforce an assessment
of such a nature against a nonresident, so far as his personal
liability is concerned, would amount to the taking of property
without due process of law, and would be a violation of the federal
Constitution.
In this proceeding of the lot owner to have the assessment set
aside and the statutory liability of plaintiff adjudged invalid,
the court was not justified in dismissing the petition and giving
the contractor not only judgment on his counterclaim foreclosing
his lien, but also inserting in that judgment a provision for a
personal liability against the plaintiff and for a general
execution against him. Such a provision against a nonresident,
although a litigant in the courts of the state, was not only
erroneous, but it was so far erroneous as to constitute, if
enforced, a violation of the federal Constitution for the reason
already mentioned. By resorting to the state court
Page 173 U. S. 203
to obtain relief from the assessment and from any personal
liability provided for by the statute, the plaintiff did not
thereby in any manner consent, or render himself liable, to a
judgment against him providing for any personal liability. Nor did
the counterclaim made by the defendant contractor give any such
authority.
The principle which renders void a statute providing for the
personal liability of a nonresident to pay a tax of this nature is
the same which prevents a state from taking jurisdiction through
its courts, by virtue of any statute, over a nonresident not served
with process within the state, to enforce a mere personal
liability, and where no property of the nonresident has been seized
or brought under the control of the court. This principle has been
frequently decided in this Court. One of the leading cases is
Pennoyer v. Neff, 95 U. S. 714, and
many other cases therein cited.
Mexican Central Railway v.
Pinkney, 149 U. S. 194,
149 U. S.
209.
The lot owner never voluntarily or otherwise appeared in any of
the proceedings leading up to the levying of the assessment. He
gave no consent which amounted to an acknowledgment of the
jurisdiction of the city or common council over his person.
A judgment without personal service against a nonresident is
only good so far as it affects the property which is taken or
brought under the control of the court or other tribunal in an
ordinary action to enforce a personal liability, and no
jurisdiction is thereby acquired over the person of a nonresident
further than respects the property so taken. This is as true in the
case of an assessment against a nonresident of such a nature as
this one as in the case of a more formal judgment.
The jurisdiction to tax exists only in regard to persons and
property or upon the business done within the state, and such
jurisdiction cannot be enlarged by reason of a statute which
assumes to make a nonresident personally liable to pay a tax of the
nature of the one in question. All subjects over which the
sovereign power of the state extends are objects of taxation.
Cooley on Taxation, 1st ed., pp. 3, 4; Burroughs on
Page 173 U. S. 204
Taxation, sec. 6. The power of the state to tax extends to all
objects within the sovereignty of the state. Per Mr. Justice
Clifford, in
Hamilton Company v.
Massachusetts, 6 Wall. 632, at
73 U. S. 638.
The power to tax is, however, limited to persons, property, and
business within the state, and it cannot reach the person of a
nonresident. case of the
State Tax on Foreign-Held
Bonds, 15 Wall. 300,
82 U. S. 319.
In Cooley on Taxation, 1st ed., p. 121, it is said that
"a state can no more subject to its power a single person or a
single article of property, whose residence or legal situs is in
another state, than it can subject all the citizens or all the
property of such other state to its power."
These are elementary propositions, but they are referred to only
for the purpose of pointing out that a statute imposing a personal
liability upon a nonresident to pay such an assessment as this
oversteps the sovereign power of a state.
In this case, the contractor, by filing his counterclaim herein,
has commenced the enforcement of an assessment and a personal
liability imposed by virtue of just such a statute, and the
judgment under review gives him the right to do so. The lot owner
is called upon to make such defense as he can to the claim of
personal liability or else be forever barred from setting it up. He
does claim that, as a nonresident, he did not have such notice, and
the state or city did not obtain such jurisdiction over him with
regard to the original assessment as would authorize the
establishment of any personal liability on his part to pay such
assessment.
The contractor nevertheless has obtained a judgment not alone
for a foreclosure of his lien, but also for the personal liability
of the lot owner, and unless he can in this proceeding have the
provision in the judgment for a personal liability stricken out,
the lot owner cannot thereafter resist it, even when the lots fail
(if they should fail) to bring enough on their sale to satisfy the
judgment.
The case of
Davidson v. New Orleans, 96 U. S.
97, has been cited as authority for the proposition that
the rendering of a personal judgment for the amount of an
assessment for a local improvement is a matter in which the state
authorities cannot be controlled by the federal Constitution. It
does not
Page 173 U. S. 205
appear in that case that the complaining party, in regard to the
state statute, was a nonresident of the state, but, on the
contrary, it would seem that she was a resident thereof. That fact
is a most material one, and renders the case so unlike the one at
bar as to make it unnecessary to further refer to it.
The statute upon which the right to enter this personal judgment
depends being, as to the nonresident lot owner, an illegal
enactment, it follows that the judgment should and must be amended
by striking out the provision for such personal liability. For that
purpose, the judgment is
Reversed and the cause remanded to the Supreme Court of Iowa
for further proceedings therein not inconsistent with this
opinion.
