A constitutional right against unjust taxation is given for the
protection of private property, but it may be waived by those
affected who consent to such action to their property as would
otherwise be invalid.
It was within the power of Congress, by the Act of March 3,
1899, c. 431, 30 Stat. 1344, to extend S Street in the District of
Columbia, to order the opening and extension of the streets in
question, and to direct the Commissioners of the District to
institute and conduct proceedings in the Supreme Court of the
District to condemn the necessary land, and it was also competent
for Congress, in said act, to provide that, of the amount found due
and awarded as damages for and in respect of the land condemned for
the opening of said streets, not less than one-half thereof should
be assessed by the jury in said proceedings against the pieces and
parcels of ground situate and lying on each side of the extension
of said streets and also on all or any adjacent pieces or parcels
of land which will be benefited by the opening of said streets as
provided for in said act, and that the sums to be assessed against
each lot or piece or parcel of ground should be determined and
designated by the jury, and that, in determining what amount should
be assessed against any particular piece or parcel of ground, the
jury should take into consideration the situation of said lots, and
the benefits that they might severally receive from the opening of
said streets.
The order of publication gave due notice of the filing of the
petition in this case, and an opportunity to all persons interested
to show cause why the prayer of the petition should not be granted,
and operated as a notice to all concerned of the pending
appointment of a jury, and that proceedings would be had under the
act of Congress.
The Act of March 3, 1899, was a valid act, and the proceedings
thereunder were regular and constituted due process of law.
The Court of Appeals, in regarding the decision in
Norwood
v. Baker, 172 U. S. 269, as
overruling previous decisions of this Court in respect to
Congressional legislation as to public local improvements in the
District of Columbia is overruled.
Congress, by an Act approved March 3, 1899, entitled "An Act to
Extend S Street in the District of Columbia, and for Other
Purposes," enacted as follows:
"SECTION 1. That, within thirty days from the passage of
this
Page 181 U. S. 372
act, the Commissioners of the District of Columbia be, and they
are hereby, authorized and directed to institute by a petition in
the Supreme Court of the District of Columbia, sitting as a
district court, a proceeding to condemn the land necessary to open
and extend S, Twenty-second, and Decatur Streets through lots
forty-one and forty-two of Phelps and Tuttle's subdivision of
Connecticut Avenue Heights, part of Widow's Mite:
Provided, That the owners of the 'Kall' tract dedicate the
land in said tract contained within the lines of said streets:
And provided further, That of the amount found due and
awarded as damages for and in respect of the land condemned under
this section for the opening of said streets, not less than
one-half thereof shall be assessed by the jury in said proceedings
against the pieces and parcels of ground situate and lying on each
side of the extension of said streets, and also on all or any
adjacent pieces or parcels of land which will be benefited by the
opening of said streets as herein provided."
"
* * * *"
"SEC. 5. That the proceedings for the condemnation of said lands
. . . shall be under and according to the provisions of chapter 11
of the Revised Statutes of the United States relating to the
District of Columbia, which provide for the condemnation of lands
in said District for public highways."
"SEC. 7. That the sums to be assessed against each lot and piece
and parcel of ground shall be determined and designated by the
jury, and in determining what amount shall be assessed against any
particular piece or parcel of ground, the jury shall take into
consideration the situation of said lots and the benefits that they
may severally receive from the opening of said streets."
On March 31, 1899, the commissioners filed a petition in the
Supreme Court of the District, alleging that the owners of the Kall
tract had dedicated to the District of Columbia, for highway
purposes, the land in said tract contained within the lines of S,
Twenty-second, and Decatur Streets; that a map of the proposed
extension of said streets, showing the number and designation of
lots affected, the names of the owners thereof, and the areas of
land required for the extension, had been prepared and a copy
thereof annexed to the petition, and praying the
Page 181 U. S. 373
court to direct the marshal of the District to summon a jury to
be and appear on the premises on a day specified, to assess the
damages, if any, which each owner of land through which said
streets were proposed to be extended, might sustain by reason
thereof, and that such other and further orders might be made and
proceedings had as were contemplated by the said act of Congress
and by chapter 11 of the Revised Statutes of the United States
relating to the District of Columbia, to the end that a permanent
right of way for the public over said lands might be obtained and
secured for the extension of said streets.
On April 3, 1899, an order of publication was made by the court
directing that all persons interested in the proceedings appear in
the court on or before the 22d day of April, 1899, and show cause,
if any they have, why the prayer of said petition should not be
granted, and that a copy of the order should be published in the
Washington Post and the Washington Times newspapers at least six
times, and in the Washington Law Reporter once, before the said 22d
day of April, 1899.
On July 21, 1899, it was ordered by the court that, whereas
notice by advertisement had been duly published, a jury should be
summoned to be and appear upon the premises to assess the damages,
if any, which each owner of land may sustain by reason of the
condemnation of the land necessary to open and extend said streets,
as prayed in said petition, and directing that of the amount due
and awarded as damages by said jury in respect of the land
condemned for the opening of said streets not less than one-half
thereof should be assessed by said jury against the pieces and
parcels of ground situated and lying on each side of the extension
of said streets, and also on all or any adjacent pieces or parcels
of land which would be benefited by the opening of said streets,
and to further proceed in accordance with the Act of Congress
approved March 3, 1899.
On August 30, 1899, there was filed in the Supreme Court of the
District a return or report by the marshal, setting forth the
appointment and qualification of the jurors, and a statement of the
proceedings of said jury in taking testimony and hearing arguments
of counsel. With the report of the marshal there was also filed a
verdict in writing by the jury in the following terms:
Page 181 U. S. 374
"
I
n the Supreme Court of the District of Columbia,"
"
holding a district court for said District"
"
In re Extension of S, Twenty-second, and Decatur
Streets -- No. 549."
"We, the jury in the above-entitled cause, hereby find the
following verdict and award of damages for and in respect of the
land condemned and taken necessary to open and extend S,
Twenty-second, and Decatur Streets through lots 41 and 42 of Phelps
and Tuttle's subdivision of Connecticut Avenue Heights, part of
Widow's Mite, as shown on the plat or map filed with the petition
in this cause, as set forth in schedule 1, hereto annexed as part
hereof, and we, the jury aforesaid, in accordance with the Act of
Congress, approved March 3, 1899, for the extension of said
streets, do hereby assess the sum of $26,000, being not less than
one-half of the damages so, as aforesaid, awarded in schedule 1
against the pieces and parcels of land situate and lying on each
side of the extension of said streets, and also on adjacent pieces
or parcels of land which we find will be benefited by the extension
of said streets, as set forth in schedule 2, hereto annexed as part
hereof."
By schedule 1, annexed to the award, it appears that the jury
awarded to the owners of parts of lots 41 and 42 of Phelps and
Tuttle's subdivision of Widow's Mite, as damages for land within
the lines of S and Twenty-second Streets extended, the sum of
$36,000, and to the owners of part of lot 41, included in the lines
of Decatur Place extended, the sum of $16,000.
By schedule 2, it is shown that the jury apportioned one-half of
said damages among the owners of pieces or parcels of land
benefited, and that among those found to be benefited were the
owners of the Kall tract, and against whose lands there were
assessed various sums amounting, in the aggregate, to $14,000.
On September 19, 1899, the Supreme Court of the District entered
an order confirming the award and assessment, unless cause to the
contrary should be shown on or before the 4th day of October, 1899,
and directing that a copy of said order should be published once in
the Washington Law Reporter and twice in the Evening Star before
that date, and further ordering that the marshal should serve a
copy of the order personally
Page 181 U. S. 375
on all the owners of land condemned and all the owners of land
assessed in said verdict, with one-half of the damages awarded
therein, who might be found within the District of Columbia, and if
not found therein, then by mailing a copy thereof to the place of
abode or last-known place of residence of each owner or owners.
On September 29, 1899, the marshal returned that he had served a
copy of the order personally on, among others, the appellees, and
had mailed copies to such parties as resided without the
District.
On October 4, 1899, the appellees filed exceptions to the
confirmation of the award and finding of the jury, as to the owners
of the tract of land known in the proceedings as the Kall tract.
The exceptions were as follows:
"First. Said award of damages and finding of the jury is not
warranted by the statute under which these proceedings are had and
taken, and by a proper construction thereof, no damage can be
assessed against said tract of land, or any part thereof, or these
respondents as owners of said land."
"Second. Because said act is unconstitutional and void in that
it contains no provision for notifying the owners of property to be
assessed in advance of said assessment, nor at any time pending the
consideration of the cause by the jury, nor is any mode designated
by the statute by which the objections of the owners whose land is
sought to be charged with benefits can be properly heard or
considered, or by which any objection they may have to such
assessment might be made effective, and for other vices and defects
apparent on the face of the statute."
"Third. Because the statute under which said assessment is made
is a statute relating to a condemnation of land solely, and
contains no provision touching the assessment of benefits, and was
not intended to provide for such assessment."
"Fourth. Because the statute authorizing the extension of said
streets, and the condemnation of land therefor, and the assessment
of benefits, is, when taken in connection with the statute under
which the condemnation proceedings were to be conducted,
inconsistent and incapable of enforcement as to the
Page 181 U. S. 376
assessment of benefits against property forming no part of that
sought to be condemned."
"Fifth. Because the description of the property sought to be
charged with the assessment of benefits is inaccurate,
insufficient, and defective."
"Sixth. Because said award of damages and finding of the jury in
that behalf are excessive, unjust, and unreasonable."
"These respondents therefore, each and severally, request and
demand said award and finding to be set aside, and that a new jury
be impaneled in accordance with the provisions of the statute in
such case made and provided."
On November 18, 1899, after argument, the exceptions were
overruled and the verdict, award, and assessment were in all
respects confirmed. Thereupon the cause was taken on appeal to the
Court of Appeals of the District of Columbia. On April 25, 1900,
the order and decree of the Supreme Court of the District were
reversed by the said Court of Appeals, and the cause was remanded
to the Supreme Court of the District, with directions to vacate
such order or decree, and for said other proceedings therein, if
any, as might be proper and not inconsistent with the opinion of
the Court of Appeals. 16 App.D.C. 371. An appeal was thereupon
allowed to this Court.
MR. JUSTICE SHIRAS delivered the opinion of the Court.
This is an appeal from a decree of the Court of Appeals of the
District of Columbia reversing an order or decree of the Supreme
Court of the District confirming an assessment upon lands of the
appellees for alleged benefits accruing from the opening of certain
streets adjoining such lands, and presents for determination the
constitutionality of an Act of Congress, approved March 3, 1899,
under which the assessment complained of was made.
Page 181 U. S. 377
It may well be doubted whether the appellees are in a position
to question the validity of the statute. They are the owners of the
"Kall" tract mentioned in the first section of the act, and with
respect to which it was made a condition that the owners should
dedicate the land in said tract contained within the lines of the
streets to be extended; and, it appears by the record, that, in
order to procure the desired action of the commissioners, they did
dedicate to the District of Columbia for highway purposes the land
in said tract contained within the lines of S, Twenty-second, and
Decatur Streets.
Prior to the filing of the petition of the commissioners, the
authorities of the District had taken no steps towards the
contemplated extension of these streets. In fact, under the act,
they had no power to do so. The power was called into action by the
dedication of the Kall tract. By such dedication, the appellees put
the act into operation, and voluntarily subjected themselves to its
provisions, including the mode of assessment. The constitutional
right against unjust taxation is given for the protection of
private property, and may be waived by those affected who consent
to such action to their property as would otherwise be invalid.
"Under some circumstances, a party who is illegally assessed may
be held to have waived all right to a remedy by a course of conduct
which renders it unjust and inequitable to others that he should be
allowed to complain of the illegality. Such a case would exist if
one should ask for and encourage the levy of the tax of which he
subsequently complains, and some of the cases . . . go far in the
direction of holding that a mere failure to give notice of
objections to one who, with the knowledge of the person taxed, as
contractor or otherwise, is expending money in reliance upon
payment from the taxes, may have the same effect."
Cooley on Taxation 573;
Tash v. Adams, 10 Cush. 252;
Bidwell v. Pittsburgh, 85 Pa. 412;
Lafayette v.
Fowler, 34 Ind. 140;
Shutte v.
Thompson, 15 Wall. 151,
82 U. S.
159.
However, as we learn from this record that there are others than
the appellees concerned in the question of the validity of the act
of Congress, and as the decision of the Court of Appeals,
Page 181 U. S. 378
by declaring the act void as to the appellees, operates to
defeat or suspend proceedings under it and under other existing
acts of Congress in similar terms respecting public improvements in
the District, we prefer to pass by the question whether the
appellees are estopped by having made the dedication imposed as a
condition precedent to the opening of the streets, and to place our
decision upon the question discussed by the Court of Appeals, and
which controlled its decision -- namely, that of the
constitutionality of the act of Congress under which the
proceedings were had.
The principal objections urged against the validity of the act
are first, because, as is alleged, it arbitrarily fixes the amount
of benefits to be assessed upon the property, irrespective of the
amount of benefits actually received or conferred upon the land
assessed by the opening of the streets, and second because it
contains no provision for notifying the owners of the property to
be assessed in advance of such assessment or at any time pending
the consideration of the cause by the jury.
In
Bauman v. Ross, 167 U. S. 548, on
appeal from the Court of Appeals of the District of Columbia, it
was held that Congress may direct that, when part of a parcel of
land is appropriated to the public use for a highway in the
District of Columbia, the tribunal vested by law with the duty of
assessing the compensation or damages due to the owner, whether for
the value of the part taken or for any injury to the rest, shall
take into consideration, by way of lessening the whole or either
part of the sum due him, any special and direct benefits, capable
of present estimate and reasonable computation, caused by the
establishment of the highway to the part not taken; that the
estimate of the just compensation for property taken for the public
use under the right of eminent domain is not required to be made by
a jury, but may be entrusted to commissioners appointed by a court,
or to an inquest consisting of more or fewer men than an ordinary
jury; that Congress, in the exercise of the right of taxation in
the District of Columbia, may direct that half of the amount of the
compensation or damages awarded to the owners of lands appropriated
to the public use for a highway shall be assessed and charged
upon
Page 181 U. S. 379
the District of Columbia, and the other half upon the lands
benefited thereby within the District, in proportion to the
benefit, and may commit the ascertainment of the lands to be
assessed and the apportionment of the benefits among them to the
same tribunal which assesses the compensation or damages; that if
the legislature, in taxing lands benefited by a highway or other
public improvement, makes provision for notice, by publication or
otherwise, to each owner of land, and for hearing him at some stage
of the proceedings, upon the question what proportion of the tax
shall be assessed upon his land, his property is not taken without
due process of law.
In the opinion of the court in that case, delivered by MR.
JUSTICE GRAY, it was said that the provisions of the statute under
consideration, which regulated the assessment of damages, are to be
referred not to the right of eminent domain, but to the right of
taxation, and that the legislature, in the exercise of the right of
taxation, has the authority to direct the whole or such part as it
may prescribe, of the expense of a public improvement, such as the
establishing, the widening, the grading, or the repair of a street,
to be assessed upon the owners of lands benefited thereby, and that
such authority has been repeatedly exercised in the District of
Columbia by Congress, with the sanction of this Court. Citing
Willard v.
Presbury, 14 Wall. 676;
Mattingly v. District
of Columbia, 97 U. S. 687;
Shoemaker v. United States, 147 U.
S. 282,
147 U. S. 302.
It was also said that the class of lands to be assessed for the
purpose may be either determined by the legislature itself, by
defining a territorial district or by other designation, or it may
be left by the legislature to the determination of commissioners,
and be made to consist of such lands, and such only, as the
commissioners shall decide to be benefited; that the rule of
apportionment among the parcels of land benefited also rests within
the discretion of the legislature, and may be directed to be in
proportion to the position, the frontage, the area, or the market
value of the lands, or in proportion to the benefits as estimated
by commissioners; citing the cases hereinbefore mentioned.
By the Act of June 17, 1890, 26 Stat. 159, c. 428, Congress
enacted that the Commissioners of the District of Columbia
Page 181 U. S. 380
shall have the power to lay water mains and water pipes and
erect fire plugs and hydrants whenever the same shall be, in their
judgment, necessary for the public safety, comfort, or health. By
the Act of August 11, 1894, 28 Stat. 275, c. 253, it was
provided
"that hereafter assessments levied for laying water mains in the
District of Columbia shall be at the rate of $1.25 per linear front
foot against all lots or lands abutting upon the street, road, or
alley in which a water main shall be laid."
On October 5, 1895, Homer B. Parsons filed in the Supreme Court
of the District of Columbia a petition against the District of
Columbia and the commissioners thereof, complaining, as illegal, of
a certain charge or special assessment against land of the
petitioner, as a water main tax or assessment for laying a water
main in the street on which said land abuts. After a hearing upon
the petition and return, the petition was dismissed. An appeal was
taken to the Court of Appeals of the District of Columbia, where
the judgment of the Supreme Court of the District was affirmed. The
cause was then brought to this Court, and by it the judgment of the
Court of Appeals was affirmed.
Parsons v. District of
Columbia, 170 U. S. 45. The
principal grounds of complaint were that the lot owner was given no
opportunity to be heard upon the question of cost or utility or
benefit of the work, or of the apportionment of the tax; that the
assessment was made without any estimate of the cost of the work to
be done and without regard to the cost of the work or the value of
the improvement, and not upon the basis of benefits to the property
assessed.
This Court held that the legislation in question was that of the
United States, and must be considered in the light of the
conclusions, so often announced, that the United States possesses
complete jurisdiction, both of a political and municipal nature,
over the District of Columbia, citing
Mattingly v. District of
Columbia, 97 U. S. 687;
Gibbons v. District of Columbia, 116 U.
S. 404;
Shoemaker v. United States,
147 U. S. 282;
Bauman v. Ross, 167 U. S. 548;
that when, by the Act of August 11, 1894, Congress enacted that
thereafter assessments levied for laying water mains in the
District of Columbia should be at the
Page 181 U. S. 381
rate of $1.25 per linear front foot against all lots or land
abutting upon the street, road, or alley in which a water main
shall be laid, such act must be deemed conclusive alike of the
question of the necessity of the work and of the benefits as
against abutting property; that to open such questions for review
by the courts on the petition of any and every propertyholder would
create endless confusion; that where the legislature has submitted
these questions for inquiry to a commission, or to official persons
to be appointed under municipal ordinances or regulations, the
inquiry becomes in its nature judicial in such a sense that the
property owner is entitled to a hearing or to notice or an
opportunity to be heard; that the function of the commissioners
under the act was not to make assessments upon abutting properties,
nor to give notice to the property owners of such assessments, but
to determine the question of the propriety and necessity of laying
water mains and pipes, and of erecting fire plugs and hydrants, and
that their
bona fide exercise of such a power cannot be
reviewed by the courts.
If, then, the reasoning and conclusions of these cases are to be
respected as establishing the law of the present case, it is plain
that it was within the power of Congress, by the Act of March 3,
1899, to order the opening and extension of the streets in question
and to direct the commissioners of the District to institute and
conduct proceedings in the Supreme Court of the District to condemn
the necessary land, and it was also competent for Congress, in said
act, to provide that, of the amount found due and awarded as
damages for and in respect of the land condemned for the opening of
said streets, not less than one-half thereof should be assessed by
the jury in said proceedings against the pieces and parcels of
ground situate and lying on each side of the extension of said
streets, and also on all or any adjacent pieces or parcels of land
which will be benefited by the opening of said streets as provided
for in the said act, and that the sums to be assessed against each
lot or piece or parcel of ground should be determined and
designated by the jury, and that, in determining what amount should
be assessed against any particular piece or parcel of ground, the
jury should
Page 181 U. S. 382
take into consideration the situation of said lots and the
benefits that they might severally receive from the opening of said
streets.
It is also established by those authorities that, in proceedings
of this nature, notice by publication is sufficient, and it
accordingly follows that the order of publication in the newspapers
named by the Supreme Court of the District gave due notice of the
filing of the petition and an opportunity to all persons interested
to show cause, if any they had, why the prayer of the petition
should not be granted. Such notice also must be held to have
operated as a notice to all concerned of the pending appointment of
a jury, and that proceedings under the act of Congress would
subsequently be had. This gave an opportunity for interested
parties to attend the meetings of the jury, to adduce evidence, and
be heard by counsel. The return of the marshal shows that some, at
least, of the property owners appeared before the jury, produced
witnesses, and were heard by counsel. If the appellees did not
avail themselves of these opportunities, the court and jury,
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.
On the 18th of November, 1899, after hearing, the Supreme Court
of the District passed a decree overruling the exceptions and
confirming the verdict of award and assessments made by the
jury.
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
Page 181 U. S. 383
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.
"The principal questions raised by the assignments of error are
two: (1) that of the constitutionality of the act of Congress under
which the proceedings have been had, and (2) that of the
sufficiency of the notice given to the appellants in respect of the
assessments upon their property."
"1. With respect to the first of these questions, we think that
it has been conclusively determined for us by the decision of the
Supreme Court of the United States in the case of
Norwood v.
Baker, 172 U. S. 269."
"As we understand that decision, which undoubtedly has the
effect of greatly qualifying the previous expressions of the same
high tribunal upon the matter of special assessments, the limit of
assessment on the private owner of property is the value of the
special benefit which has accrued to him from the public
improvement adjacent to his property."
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 property without due process of
law, contrary to the Fourteenth Amendment to the Constitution of
the United States.
Baker v. Norwood, 74 F. 997. In the
opinion of this Court it was 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
Page 181 U. S. 384
my person within its jurisdiction the equal protection 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 with a question arising under the
Fourteenth Amendment of the Constitution of the United States
which, in terms, operates only to control action of the states, and
does not purport to extend to authority exercised by the government
of the United States.
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 Fourteenth Amendment. No doubt,
in the exercise of such legislative powers, Congress is subject to
the provisions of the Fifth 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 Fifth Amendment, and
maintaining the validity of the acts of Congress relating to public
improvements within the District of Columbia, is to be deemed
overruled by a decision concerning the operation of the Fourteenth
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.
Baker 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.
Page 181 U. S. 385
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 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, and
accordingly affirmed the decree of the circuit court of the United
States, which, while preventing the enforcement of the particular
assessment in question, left the village free to make a new
assessment upon the plaintiff's abutting property for so much of
the expense of opening the street as would be found upon due and
proper inquiry, to be equal to the special benefits accruing to the
property.
That it was not intended by this decision to overrule
Bauman
v. Ross and
Parsons v. District of Columbia is seen
in the opinion, where both those cases are cited and declared not
to be inconsistent with the conclusion reached.
Norwood v.
Baker, 172 U. S. 269,
172 U. S. 294.
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, and this was thought by a majority of
this Court to have been the case in
Norwood v. Baker. But
no such facts are disclosed in this record.
The second proposition upon which the circuit court proceeded
was that sufficient notice 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.
Page 181 U. S. 386
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 3, 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
first section of the 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 Company, 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 Fourteenth Amendment, although it is
controlled by the Fifth Amendment providing, 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," the Court
proceeds,
"it by no means necessarily follows that a long and consistent
construction put upon the Fifth Amendment and maintaining the
validity of the acts of Congress relating to public improvements
within the District of Columbia is to be deemed overruled by a
decision concerning the operation of the Fourteenth Amendment as
controlling legislation."
These observations were made to sustain the proposition that the
principles announced in
Norwood v. Baker, 172 U.
S. 269, in reference to the validity of state enactments
relating to local public improvements, have no necessary
application to a case of a like kind arising under a similar act of
Congress relating to local public improvements in the District of
Columbia. As the Court does not pursue this subject, nor express
any final view upon the question referred to, I refer to this part
of its opinion only for the purpose of recording my dissent from
the intimation that what a state might
Page 181 U. S. 387
not do in respect of the deprivation of property without due
process of law, Congress under the Constitution of the United
States could perhaps do in respect of property in this District.
The Fifth Amendment declares that no person shall be deprived of
property "without due process of law." The Fourteenth 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 Fourteenth Amendment but not applicable under the Fifth
Amendment, or upon principles applicable under the Fifth and not
applicable under the Fourteenth 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 statute,
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
Company, just decided, 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 the
entire cost of a public highway, in which the whole community was
interested, could be put, under
Page 181 U. S. 388
legislative sanction, on the abutting property where such cost
was in substantial excess of the special benefits accruing to the
property assessed.
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 Company -- 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.
I submit that, if the present case is to be distinguished from
Norwood v. Baker, it should be done upon grounds that do
not involve a misapprehension of the scope and effect of the
decision in that case. If Congress can, by direct enactment, put a
special assessment upon private property to meet the entire cost of
a public improvement made for the benefit and convenience of the
entire community, even if the amount so assessed be in substantial
excess of special benefits, and therefore, to the extent of such
excess, 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.
