The statutes of Louisiana and the ordinances of the City of New
Orleans which provide and regulate the method for paving streets at
the cost of the owners of abutting lots, as such statutes and
ordinances have been construed by the Supreme Court of Louisiana,
are not obnoxious, under the facts of this case to the provisions
of the Fourteenth Amendment to the Constitution of the United
States.
Where an ordinance of the City of New Orleans and specification
for the paving of a street require the contractor to employ only
bona fide resident citizens of the City of New Orleans as
laborers, a resident citizen of New Orleans who is not one of the
laborers, excluded by the ordinance from employment and who does
not occupy any representative relation to them, cannot have a lien
on his property for his
pro rata share of the improvements
invalidated on the ground that citizens of Louisiana and of each
and every state are deprived of their privileges and immunities
under article IV, § 2, of, and the Fourteenth Amendment to,
the Constitution of the United States.
If a person owning property affected by the assessment for the
work done under such ordinance wishes to raise such question on the
ground that the ordinance is prejudicial to his property rights
because confining the right to labor to resident citizens increases
the cost of the work, he must raise the question in time to stay
the work
in limine.
Page 187 U. S. 541
The serious duty of condemning state legislation as
unconstitutional and void cannot be thrown upon this Court except
at the suit of parties directly and certainly affected thereby.
In April, 1897, John M. Kelly filed his petition in the the
Civil District Court for the Parish of Orleans against Edmund H.
Chadwick, to enforce payment of a lien on a certain square of
ground in the City of New Orleans, created and arising out of a
contract between one A. J. Christopher and said city for paving
Hagan Avenue. The petition alleged due completion of the work, an
assignment or transfer by Christopher of all his rights and claims
under the contract to the petitioner, and a liability of Chadwick
for the amount of $638.80, with interest thereon from September 24,
1896, and also alleged that, for the payment of said sum he had by
law a lien and pledge upon said property.
Chadwick answered this petition, wherein he pleaded the general
issue and certain special pleas, in one of which he denied that his
property was benefited by the paving, and alleged that, if it was
so benefited, he could only be made to pay the amount of benefit to
an increased value of property, and that no personal judgment
should be rendered against him. He also filed, in September, 1899,
a supplemental answer in which, among other things, he alleged that
the ordinance under which the work was done required the contractor
to employ only
bona fide resident citizens of the City of
New Orleans as laborers on the work, thus depriving the citizens of
the state and of each and every State of the privileges and
immunities of citizens in the several states, secured to them by
the Constitution of the United States, which, by the second section
of its fourth article, provides that the citizens of each state
shall be entitled to all privileges and immunities of the citizens
of the several states, and he also alleged that the ordinance was
likewise illegal and unconstitutional because it imposed a
liability on the property owner, irrespective of the question
whether or not his was benefited or damaged by the pavement, and he
alleges that the paving of the street in front of his property had
been of no benefit to it, and that the rendition of any judgment
against him would be taking his private property for public
purposes,
Page 187 U. S. 542
contrary to the Constitution of the State of Louisiana and to
that of the United States.
Evidence was taken, and the cause was so proceeded in that, on
March 5, 1900, judgment was rendered against the defendant,
Chadwick, in the sum of $638.80, with interest from September 24,
1896, with costs of suit, with recognition of plaintiff's lien and
privilege for the payment thereof on the said property, the same to
be sold and the proceeds to be applied to the payment of
plaintiff's claim.
A suspensive appeal was thereupon allowed to the Supreme Court
of Louisiana, and that court, on February 4, 1901, affirmed the
judgment of the trial court, and subsequently allowed a writ of
error to bring the cause to this Court.
MR. JUSTICE SHIRAS delivered the opinion of the Court.
In this record, Chadwick, the plaintiff in error, complains of
the judgment of the Supreme Court of Louisiana in two particulars:
first, in upholding as valid the statutes of Louisiana and the
ordinances of the City of New Orleans which provide and regulate
the method for the paving of streets at the cost of the owners of
abutting lots; and second, in upholding as valid the ordinance of
the Council of the City of New Orleans which provides that, in all
the contracts let by the city for public works of any kind and
nature, the contractor shall not employ any other but
bona
fide resident citizens of the city as laborers on such public
works.
Of course, this Court is restricted to a consideration of these
questions in their federal aspect.
The brief of the counsel of the plaintiff in error contends
that, by the statutes of the State of Louisiana, the property owner
is made to pay the cost of the improvement irrespective of the
Page 187 U. S. 543
question of benefit, is made personally responsible for the cost
of the improvement, although it may largely exceed not only the
benefit to his property, but the value thereof, and his property is
made subject to a lien to secure the payment.
So far as it is complained that, by the statutes, the property
owner is made personally responsible for the cost of the
improvement, we learn from the opinions of the supreme court in the
present case and in the case of
Barber Asphalt Paving Co. v.
Watt, reported in 51 La.Ann. 1345, that
"for the sum assessed against their property no personal
liability attached to the abutting owners beyond the value of the
property affected, that the proceeding was purely one
in
rem, acting on the property benefited, and none other,"
and that
"the property owner's proportion of the cost of paving a street
should be determined by ascertaining the entire cost of the work
assessable to the property fronting thereon, and apportioning the
same to said property in proportion to foot frontage."
This construction of the state statutes by the supreme court of
the state must, of course, in a case like the present, be accepted
by us, and we have only to consider, in this branch of the case,
whether the statutes of Louisiana, so construed, which provide and
regulate a method of improving and paving streets in the City of
New Orleans, and apportioning the cost thereof by assessment upon
the abutting property, are obnoxious, under the facts of the
present case, to the provisions of the Fourteenth Amendment to the
Constitution of the United States.
We do not feel constrained to enter at large upon a subject
which has received such frequent and recent consideration by this
Court. It is, perhaps, sufficient to say that we do not perceive in
the statutes of Louisiana, as construed and applied in this case by
the Supreme Court of that state, any provisions which we must
condemn as being in disregard of the constitutional rights of the
plaintiff in error. In view of our decisions, we certainly cannot
say that, as matter of law, a state statute which makes the cost of
paving a street in a city assessable upon the abutting properties
and a lien thereon is unconstitutional.
Willard v.
Presbury, 14 Wall. 676;
Mattingly v. District
of Columbia, 97 U. S. 687;
Spencer v.
Merchant, 125 U.S.
Page 187 U. S. 544
345;
Bauman v. Ross, 167 U. S. 548;
Parsons v. District of Columbia, 170 U. S.
45;
Wight v. Davidson, 181 U.
S. 371;
French v. Barber Asphalt Paving Co.,
181 U. S. 324.
In the opinion of the Supreme Court of Louisiana, which we find
in this record, it is said:
"There can be no question, and in fact it is conceded, that, by
act No. 119 of 1886, and by that act as amended by act No. 142 of
1894, the Council of the City of New Orleans was authorized,"
"in its discretion, to provide for the paving or banqueting of
any street, or portion thereof at the expense of the whole city,
and to thereupon force, impose, and collect of the front
proprietors of lots fronting on said street a special assessment in
proportion to frontage of three quarters of the cost of said
improvement,"
and that, by said acts it was enacted that such local assessment
should have a first privilege, superior to vendor's privilege and
all other privileges and mortgages.
"The constitutionality of those acts is not attacked directly,
but the exercise by the city of authority, under the powers so
granted, is called in question as being illegal and
unconstitutional. . . . It is too late to question the right of the
General Assembly to establish particular districts for the
attainment of special local public good, through works of a
particular character, and to order itself, or authorize some
political body to order, special assessments to be made, within the
district, for the purpose of meeting the cost and expenses of such
works.
George v. Young, 14 So. 137. . . . It is true that,
in some instances, almost the whole benefit accrues to a few, but
there can be no universal rule of justice, upon which such
assessments can be made. An apportionment of the cost that would be
just in one case would be oppressive in another. For this reason,
the power to determine when a special assessment shall be made, and
on what basis it shall be apportioned, rests in the legislature or
some political body to which it has delegated that authority. . . .
The city has simply exercised its unquestionable right and power of
paving an existing public street in the interest of the special
local public benefit, and demanded of owners of property abutting
and fronting on the street, that they contribute to the cost of the
improvement in a manner and form,
Page 187 U. S. 545
and to an extent fixed by the General Assembly. The object of
the paving of the street was to benefit parties owning property
upon it by the improvement of the access to their properties. It is
not pretended that this particular purpose was not accomplished
even as to appellant's property. It cannot be exacted for the
purpose of sustaining the constitutionality of a statute or
ordinance authorizing a work of local public improvement at the
cost of abutting owners, that it be shown there is benefit in every
possible respect to the particular owners, nor that the benefit be
direct and immediate. . . . The General Assembly has, in act No.
119 of 1886, conferred upon the common council the right and power,
by a two-thirds vote, to constitute any particular street which it
proposes to pave a special taxing district for the purpose of
meeting the cost of making such paving. It has exercised this right
and power in the matter of the paving of Hagan Avenue. Having done
so, the legislature itself has designated how, in what proportion,
and by what standard this cost is to be met. The council was not at
liberty to depart from this apportionment. The judiciary is not
authorized to alter it and to substitute for a fixed legislative
standard a fluctuating judicial standard based upon actual benefits
received and measured by values or enhanced values to be
established by evidence and proof."
We think these views are consonant with the great weight of
authority, both state and federal. As expressed by Cooley in his
work on Taxation, page 429:
"The matter is wisely confided to the legislature, and could
not, without the introduction of some new principle in
representative government, be placed elsewhere. With the wisdom or
unwisdom of special assessments when ordered in cases in which they
are admissible, the courts have no concern, unless there is plainly
and manifestly such an abuse of power as takes the case beyond the
just limits of legislative discretion."
No such case is presented by the facts in the present case as
would justify an intervention by the federal courts with a system
of special assessments prescribed by the legislature and approved
by the courts of a state.
Page 187 U. S. 546
Because the ordinance and specifications, under which the paving
in this case was done, require the contractor to employ only
bona fide resident citizens of the City of New Orleans as
laborers on the work, it is contended, on behalf of the plaintiff
in error, that thereby citizens of the State of Louisiana, and of
each and every state and the inhabitants thereof, are deprived of
their privileges and immunities under Article IV, Section 2, and
under the Fourteenth Amendment to the Constitution of the United
States. It is said that such an ordinance deprives every person,
not a
bona fide resident of the City of New Orleans, of
the right to labor on the contemplated improvements, and also is
prejudicial to the property owners, because, by restricting the
number of workmen, the price of the work is increased.
Such questions are of the gravest possible importance, and, if
and when actually presented, would demand most careful
consideration; but we are not now called upon to determine
them.
Insofar as the provisions of the city ordinance may be claimed
to affect the rights and privileges of citizens of Louisiana and of
the other states, the plaintiff in error is in no position to raise
the question. It is not alleged, nor does it appear, that he is one
of the laborers excluded by the ordinance from employment, or that
he occupies any representative relation to them. Apparently he is
one of the preferred class of resident citizens of the City of New
Orleans.
It is further argued that the ordinance is prejudicial to the
property rights of the plaintiff in error, because by confining the
right to labor on works of municipal improvement to resident
citizens, the cost of such works might thus be increased.
But we think such a consequence is too far fetched and uncertain
on which to base judicial action. The plaintiff in error did not
raise such a question in time to stay the work
in limine.
He awaited the completion of the work, and until his property had
received the benefits, whatever they were, of the improvement. Nor
did he, on the trial, adduce any evidence from which the court
might have found that the actual cost in the present case was
increased by the operation of the ordinance. Possibly the effect of
the ordinance in preferring the labor of
Page 187 U. S. 547
resident citizens might tend to increase the cost of the work,
or it might have the opposite effect by inducing outside laborers
to become resident citizens. But, as we have said, such conjectural
results are too remote and uncertain to furnish materials for
judicial determination. The serious duty of condemning state
legislation as unconstitutional and void cannot be thrown upon this
Court, except at the suit of parties directly and certainly
affected thereby.
The judgment of the Supreme Court of Louisiana is
Affirmed.
MR. JUSTICE HARLAN and MR. JUSTICE WHITE dissent.
