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the superior court entered decrees anrilling the assessment, and these decrees were affirmed by the supreme court of the state on February 14, 1895. The ground of the decision was, as stated by the trial court in its conclusions of law, "that said assessments were not made or apportioned in accordance with the benefits received by the property, but were made upon an arbitrary rule, irrespective of the benefits." On March 9, 1893, the legislature passed a general act providing for the reassessment of the cost of local improvements in case the original assessment shall have been or may be directly or indirectly set aside, annulled, or declared void by any court. Laws Wash. 1893, p. 226. Sections 4, 5, and 8 bear upon the matter of notice, and are as follows:

"Sec. 4. Upon receiving the said assessment roll the clerk of such city or town shall give notice by three (3) successive publications in the official newspaper of such city or town, that such assessment roll is on file in his office, the date of filing same, and said notice shall state a time at which the council will hear and consider objections to said assessment roll by the parties aggrieved by such assessment. The owner or owners of any property which is assessed in such assessment roll, whether named or not in such roll, may within ten (10) days from the last publication provided herein, file with the clerk his objections in writing to said as

sessment.

[316] "Sec. 5. At the time appointed for hearing objections to such assessment the council shall hear and determine all objections which have been filed by any party interested, to the regularity of the proceedings in making such reassessment and to the correctness of the amount of such reassessment, or of the amount levied on any particular lot or parcel of land; and the counsel shall have the power to adjourn such hearing from time to time, and shall have power, in their discretion, to revise, correct, confirm, or set aside, and to order that such assessment be made de novo, and such council shall pass an order approving and confirming said proceedings and said reassessment as corrected by them, and their decision and order shall be a final determination of the regularity, validity, and correctness of said reassessment, to the amount thereof, levied on each lot or parcel of land. If the council of any such city consists of two houses the hearing shall be had before a joint session, but the ordinance approving and confirming the reassessment shall be passed in the same manner as other ordinances."

"Sec. 8. Any person who has filed objections to such new assessment or reassessment, as hereinbefore provided, shall have the right to appeal to the superior court of this state and county in which such city or town may be situated."

On March 18, 1895, the city council passed an ordinance prescribing the mode of procedure for collecting the cost of a local reassessment upon the property benefited there by. On.June 10, 1895, it ordered a new assessment upon the blocks, lots, and parcels

of land benefited by the improvement on Elk street, hereinbefore described, and directed the various officers of the city to take the steps required by the general ordinance of March 18. These steps were all taken in conformity to such ordinance, and on August 7, 1895, a further ordinance was passed reciting what had been done, approving it and confirming the reassessment.

The recital in that ordinance in respect to notice was as follows:

"Whereas, said city council did on the 8th day of July, 1895, order said assessment roll filed in the office of the city *clerk, and fixed [317] Monday, July 22d, 1895, at 7:30 P. M., as a time at which they would hear, consider, and determine any and all objections to the regularity of the proceedings in making such assessments, or to the amount to be assessed upon any block, lot, or tract of land for said improvements; and

"Whereas, notice of such hearing was duly published in the official paper of the city of New Whatcom, to wit: in the Daily Reveille, in three consecutive issues thereof, the same being the issues of July 9th, 10th, and 11th, 1895."

The Bellingham Bay & British Columbia Railroad Company was a private corporation organized under the laws of the state of California, but authorized to do business in the state of Washington, and having its principal office in the city of New Whatcom. It was the owner of certain property abutting upon the Elk street improvement, and which by the proceedings of the city council was held benefited by such improvement and charged with a portion of the cost. Failing to pay this charge, the city of New Whatcom instituted suit in the superior court of Whatcom county to foreclose the liens created by the reassessment. A decree was rendered in favor of the city, which, on appeal, was affirmed by the supreme court on December 8, 1896, 16 Wash. 131, whereupon this writ of error was sued out.

Messrs. L. T. Michener, W. W. Dudley, and John B. Allen for plaintiff in error. No counsel for defendant in error.

*Mr. Justice Brewer delivered the opin-[317] ion of the court:

By its answer the defendant raised a Federal question, inasmuch as it alleged that the notice of the reassessment was insufficient, and specifically that by reason thereof its property was sought to be taken without due process of law and in conflict with the terms of the Fourteenth Amendment to the Constitution. This court, therefore, has jurisdiction of the case.

*That notice of reassessment was essential[318] is not questioned. (Davidson v. New Orleans, 96 U. S. 97, 105 [24: 616, 620]; Hagar v. Reclamation District No. 108, 111 U. S. 701, 710 [28: 569, 573]; Cooley, Taxation, 266), and that constructive notice by publi cation may be sufficient is conceded (Lent v. Tillson, 140 U. S. 316, 328 [35: 419, 426]; Paulsen v. Portland, 149 U.S.30 [37: 637]); but the contention is that the notice, which

was provided for, and which was in fact given, was insufficient, because it was only a ten days' notice. We quote from the brief of counsel:

and difficult are the questions involved? Regard must always be had to the probable No hardship necessities of ordinary cases. to a particular individual can invalidate a "While we concede in the first instance to general rule. A reassessment implies, not the legislature the authority to prescribe the merely the fact of the improvement, but also time of the notice, we assert that this is not that one attempt had been made to collect an absolute authority relieved from judicial the cost and failed. Inquiry had been had review. The shortening of the time and the in the courts, and the one assessment set Ten days' limiting of opportunity to be informed aside. The facts were known. through constructive notice may be such as time, therefore, does not seem unreasonably to render the notice unavailing for the pur-short for presenting objections to a reassesspose for which notice is designed. If that ment. be the case it is not notice. To prescribe that within ten days after the contingency of a three days' publication the landowner is left without redress for any kind of burden that may be placed upon his property in the way of taxation amounts to a taking of property without due process of law. Under the pretense of prescribing and regulating notice, all practical notice cannot be taken away. There is a limit to legislative power in shortening the time of notice, and if that limit is

transcended the courts will hold it void."

And there is nothing in the case of this plaintiff in error to suggest any injustice. It, though a corporation of the state of California, was doing business in the state of Washington, and having its principal office in the city of Whatcom. In other words, it was domiciled in the city in which the improvement was made. The improvement made on the street, on which its lots abutted, consisted in grading, planking, and sidewalking. It is, to say the least, highly improbable that it could have been ignorant of the We are unable to concur in these views. fact that they were made. It must have It may be that the authority of the legisla-known also that such improvements have to ture to prescribe the length of notice is not absolute and beyond review, but it is certain that only in a clear case will a notice authorized by the legislature be set aside as wholly ineffectual on account of the shortness of the time. The purpose of notice is to secure to the owner the opportunity to protect his property from the lien of the proposed tax or some part thereof. In order to be effectual it should be so full and clear as to disclose to persons of ordinary intelligence in a general way what is proposed. If service is made only by publication, that publication must be of such a character as to create a reasonable presumption that the owner, if present and taking ordinary care of his property, will receive the information of [319]what is proposed and when and where he may be heard. And the time and place must be such that with reasonable effort he will be enabled to attend and present his objections. Here no question is made of the form of the notice. It was published in three successive issues of the official paper of the city. So the statute required. What more appropriate way of publishing the action of a city than in its official paper? Where else would one interested more naturally look for information? And is not a repetition in three successive issues of the paper sufficient? How seldom is more than that required! Indeed, we do not understand that any challenge is made of the sufficiency of the publication. But when that is made and is sufficient, notice is given. The fact that the owner after being notified is required to appear and file his objections within ten days, is thus the sole ground of complaint. But how many days can the courts fix as a mini-guaranties of right contained in the Federal mum? How much time can be adjudged necessary as matter of law for preparing and filing objections? How many and intricate 462

be paid for, and that the ordinary method of
payment is by local assessment on the prop-[320]
erty benefited-the abutting property being
primarily the property benefited. A pre
vious assessment had been made for the cost
of these improvements. Litigation followed.
which was carried to the supreme court of
the state, and resulted adversely to the city.
It is true this plaintiff in error was not a
party of record in that litigation, and coun-
sel criticise a statement in the opinion of
the supreme court in this case, that "it ap-
pears that the appellant has been contesting
the proceedings to collect the cost of these
improvements for several years past, and
that no hardship has resulted in consequence
of the shortness of time prescribed:" yet it
may be that the court was advised by coun-
sel that it had contributed to the cost of that
litigation, and at any rate it is difficult to
believe that it was ignorant all these years
of what was going on.

In view, therefore, of the character of the
improvements, the residence of the plaintiff
in error, the almost certainty that it must
have known of the improvements and that it
would be expected to pay for them, it is im-
possible to hold that a ten days' notice was
so short as to be absolutely void. And espe-
cially is this true when the supreme court of
the state in which the proceedings were had
has ruled that it was sufficient. Before pro-
ceedings for the collection of taxes sanc-
tioned by the supreme court of a state are
stricken down in this court it must clearly
appear that some one of the fundamental

Constitution has been invaded.
The judgment of the Supreme Court of the
State of Washington is affirmed.
172 U. S.

[321]

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BELLINGHAM BAY IMPROVEMENT COMPANY, that date. On account of changes and addi

Piff. in Err.,

v.

CITY OF NEW WHATCOM.

SAME

v.

SAME.

(See S. C. Reporter's ed. 320.)
[Nos. 97, 98.]

Argued (with No. 96 ante, p. 460) Decem-
ber 16, 1898. Decided January 3, 1899.

Messrs. W. W. Dudley, L. T. Michener, and John B. Allen for plaintiff in error in both

cases.

No counsel for the defendant in error. These cases involve the same questions, and the same judgments of affirmance will be entered in them.

UNITED STATES, Appt.,

v.

tional work required by the government, and
other details for which it was responsible,*[322}
the completion of the vessel was delayed from
July 22, 1864, to November 29, 1865, a period
of sixteen months and seven days beyond the
contract term. Full payment of the contract
price was made, and also of an additional
sum for changes and extra work. On Au-
gust 30, 1890, Congress passed an act (26
Stat. at L. 1247) submitting to the court of
claims the claims of the executors of Donald
McKay for still further compensation. Such
act contains this proviso:

"Provided, however, That the investigation of said claim shall be made upon the following basis: The said court shall ascertain the additional cost which was necessarily incurred by the contractors for building the light-draught monitors Squando and Nauset and the side-wheel steamer Ashuelot in the completion of the same, by reason of any changes or alterations in the plans and specifications required and delays in the prosecution of the work: Provided, That such additional cost in completing the same, and such changes or alterations in the plans and specifications required, and delays in the prosecution of the work were occasioned by

EDWARD P. BLISS, Executor of Donald the government of the United States; but no McKay, Deceased.

(See S. C. Reporter's ed. 321-326.) Additional compensation under government contract-res judicata findings of fact. 1. An advance of prices during the term of the

contract cannot be allowed to a claimant un-
der an act of Congress providing for ad-
ditional compensation to him for additional
cost caused by changes or alterations re-
quired by the government, but declaring that
no allowance for any advance in the price of

labor or material shall be considered, unless
such advance occurred during the prolonged
term for completing the work, rendered nec-
essary by delay resulting from the action of
the government.
2. A prlor judgment cannot be used as res
judicata without pleading or proof of what
was decided by the court in the case in which
the judgment was rendered.

8. The findings of fact made in a case which
are set up as res judicata cannot be changed
by stipulation

[No. 394.]

allowance for any advance in the price of labor or material shall be considered unless such advance occurred during the prolonged term for completing the work rendered necessary by delay resulting from the action of the government aforesaid, and then only when such advance could not have been avoided by the exercise of ordinary prudence and diligence on the part of the contractors."

Under this act this suit was brought. Upon the hearing the court of claims, in addition to the facts of the contract, performance, time of completion and payment, found

that

"During the contract period of eleven months, and to some extent during the succeeding sixteen months and seven days, the government made frequent changes and alterations in the construction of the vessel and delayed in furnishing to the contractor the plans and specifications therefor, by reason of which changes and delay in furnishing plans and specifications, the contractor, with out any fault or lack of diligence on his part, could not anticipate the labor, nor could he know the kind, quality, or dimensions of ma-[323]

Submitted December 12, 1898. Decided Jan- terial which would be made necessary to be

uary 3, 1899.

APPEAL from a judgment of the Court of Claims in favor of Edward P. Bliss, Executor of Donald McKay, deceased, against the United States for the increased cost of labor and material in the construction of a gunboat. Reversed, and case remanded with directions.

Statement by Mr. Justice Brewer: On August 22, 1863, Donald McKay contracted with the United States for the construction of the gunboat Ashuelot, the contract to be completed in eleven months from

used in complying with said changes.

"While the work was so delayed during

and within the period of the contract as
aforesaid the price of labor and material
greatly increased, which increased price
thereafter continued without material change
until the completion of the vessel sixteen
months and seven days subsequent to the ex-
piration of the contract period. The in-
creased cost to the contractor as aforesaid
was by reason of the delays and inaction of
the government and without any fault on
his part."

-And rendered judgment in favor of the
petitioner for, among other things, the in-

ereased cost of the labor and material furnished by him, consisting of two items of $12,608.71 and $14,315.66. From this judg ment the United States appealed to this

court.

Messrs. Louis A. Pradt, Assistant Attorney General, and Charles C. Binney for the appellant.

Mr. John S. Blair for appellee. (323) *Mr. Justice Brewer delivered the opin

ion of the court:

No question is made except as to so much of the judgment as is for the increased cost of labor and material. The allowance for that is challenged under the clause of the act of 1890, "but no allowance for any advance in the price of labor or material shall be considered unless such advance occurred during the prolonged term for completing the work rendered necessary by delay resulting from the action of the government aforesaid." The finding is that there was an advance in the price of labor and material during the contract term of eleven months, and that such increased price continued thereafter without material change during the sixteen months and seven days between the close of the contract term and the actual completion of the vessel. Of course, but for the act of August 30, 1890, no action could be maintained 1324Jagainst the government. The statute of limitations would have been a complete defense. The petitioner's right, therefore, is measured, not by equitable considerations, but by the language of that statute. Beyond that the court may not go. If equitably the petitioner is entitled to more compensation, it must be sought by direct appropriation of further legislation of Congress.

It seems to us clear that the court of claims was not permitted to consider any advance in the price of labor or material during the term named in the contract, to wit, eleven months. Evidently Congress thought that the contractor took the risk of such advance when he signed the contract. The contract term 's one thing; the prolonged term another. if Congress intended to allow for all advances in the price of labor or material at any time between the execution of the contract and the completion of the work, the proviso quoted was unnecessary. The fact that the proviso discriminates as to the term, an advance during which entitles to allow ance, is conclusive upon the question. There are no terms to be distinguished except the

refer to the period coinmencing at the time fixed in the contract for the completion of the work, for in his petition it is said that "during the term specified by the contract, and also through the prolonged term, there was a continuous rise in the prices of all labor and material entering into said vessel and machinery." He did not then doubt the meaning of the statute, and the only difficulty is that according to the findings of the all his allegations. We deem it unnecessary court of claims his proof did *not establish[325] of the various proceedings before Congress to to follow the investigation made by counsel

see if there cannot be disclosed some unex

pressed intent on its part to authorize pay-
ment for every advance in the cost of labor
and material. The language of the act is too
plain to justify such investigation.
Attached to the record certified to us by the
One other matter requires consideration:
court of claims is a stipulation signed by the
counsel for both parties, which stipulation
commences in these words:

"It is hereby agreed by and between the parties to this cause that the following facts appear in the records of the court of claims, this cause and be treated upon the hearing and that they may be added to the record in with the same effect as if they had been included in the facts found by the court of

claims."

the record of this case the proceedings of the This stipulation seeks to introduce into court of claims in another suit brought under the same act of 1890, by the same petitioner, to recover additional compensation for the construction of a vessel other than the one described in the present suit, and this notwithstanding that this court is, at least in other than equity cases, limited to a consideration of the facts found by the court of claims. This additional record contains the findings of facts in that case, the conclusion and judgment, which was in favor of the petitioner, and states that such judg ment was not appealed from by either party. The tenth finding of fact reads as follows:

"The cost to the contractor because of the enhanced price of labor and material which occurred during the prolonged term for completing the work is $61,571.67. Said prolonged term resulted from the delays of the defendants. The exercise of ordinary prudence and diligence on the part of the contractor would not have avoided said enhanced price of material and labor."

The final clause in this stipulation of counsel seeks to explain this tenth finding in this way:

contract term of eleven months and the subsequent prolonged term of sixteen months and seven days. Of course, no change in the price of labor and material after the work "The $61,571.67 set forth in the tenth of was finished could have been considered, and the final findings in the Nauset case (see X[326) if Congress intended to either permit or for- finding above) was composed of $24,634 enbid an allowance for any advance in the price hanced cost after February 10, 1864, the exof labor and material during the entire prog-piration of the contract term for the conress of the work, it was easy to have said so. structon of the Nauset, and the remainder, That it qualified such a general provision by $36,937.67, was enhanced cost of labor and limiting it to a particular term, and that material furnished by Donald McKay within term one created by the action of the govern- the contract term (June 10, 1863, to Febment, excludes all doubt as to the meaning ruary 10, 1864), but the court did not sepof the words "prolonged term." Obviously arate the allowance in its findings." the petitioner himself understood that they

Upon this the doctrine of res judicata i

See same case below, 32 Ct. Cl. 147.

invoked to uphold the judgment. A suffi- |manded, with directions to enter a judgment cient answer is that neither by pleadings nor for the defendant. evidence were the proceedings in this other case brought before the court of claims in the present suit. If a party neither pleads Statement by Mr. Justice Brewer: nor proves what has been decided by a court On August 2, 1890, the appellee, William of competent jurisdiction in some other case F. Ingram, applied to the local land office at between himself and his antagonist, he can- Salt Lake City, Utah, under the desert land not insist upon the benefit of res judicata, act of March 3, 1877 (19 Stat. at L. 377, chap. and this although such prior judgment may 107), to reclaim and enter a tract of land have been rendered by the same court. containing 236.55 acres. The land so sought Southern Pacific Railroad Co. v. United to be reclaimed and entered was a part of an States, 168 U. S. 1 [42: 355], suggests noth-even-numbered section of lands within the ing contrary to this, for there the prior judgment was offered in evidence, and the only question considered and decided by this court was the effect of an alleged failure to fully plead res judicata.

limits of the grant to the Union Pacific Railway Company. The entry was approved by the local land office; the claimant paid the sum of $118.28, being 50 cents per acre, the preliminary payment thereon, and received an ordinary certificate of entry. He failed, however, to reclaim the land by conducting water on to it, as provided by the desert land act, and abandoned his entry, which, on December 19, 1895, was canceled. Thereafter this suit was brought to recover the money which he had paid to the local land officers. The court of claims, while expressing an opinion, on a demurrer to the petition, adversely to the contention of the petitioner (32 Ct. Cl. 147), finally entered a decree in his favor, from which decree the United

But further, not only did the petitioner fail to either plead or prove the former judgment, but also the record when produced disclosed that the court found that the advance in price was during the prolonged term. Counsel propose by stipulation to change that finding so as to make it show that part of the sum named therein was for the advance during the contract term, and the other part for the advance during the prolonged term. In other words, counsel seek without pleading or proof to use a prior judgment as res judicata, and also by stipula-States appealed to this court. tion to change the findings of fact which were made in that case. It is clear this cannot be done.

Messrs. George Hines Gorman and Louis A. Pradt, Assistant Attorney General, for appellant.

The judgment of the Court of Claims will be reversed, and the case remanded to that Messrs. Russell Duane, Harvey Spaldcourt with directions to enter a judgment foring, and E. W. Spalding for appellee. the claimant, less the two amounts of $12,608.71 and $14,815.66, the increased cost of labor and material.

UNITED STATES, Appt.,

V.

WILLIAM F. INGRAM.

(See S. C. Reporter's ed. 327-334.)

*Mr. Justice Brewer delivered the opin-[328] ion of the court:

The contention of the appellee is that no valid entry can be made under the desert land act of land within the place limits of a land grant to railroad corporations; that therefore the attempted entry was absolutely void, and that if he had fully complied with the provisions of that act he could not have acquired a good title to the lands entered; that he was therefore justified in abandon

Desert land act-recovery of money paid for ing the entry which he had attempted to

entry of public lands.

1. Valid entries can be made under the desert
land act, of land within the place limits of
a land grant to railroad corporations.
2. One who voluntarily abandons a valid
try of public lands under the desert land act
cannot recover back the money which he paid
to the local land officers to initiate it.

[No. 82.]

make; that the government had received money which it had no right to receive, and was under an implied obligation to return it -an obligation which could be enforced by action in the court of claims. His main reen-liance is on United States v. Healey, 160 U. S. 136 [40: 369], but the singular fact is that in that case a title by patent to an even-numbered section within the limits of a railroad land grant acquired under the desert land act was not questioned, and a claim of the patentee to recover the differ

Argued December 9, 1898. Decided January ence between $2.50 per acre, which he had

A

8, 1899.

PPEAL from a judgment of the Court of Claims in favor of the claimant, William F. Ingram, for the recovery from the United States of money which he had paid to the local land officers under the desert land act to initiate his entry, the entry having been afterwards abandoned. Reversed, and case re172 U. S. U. S., Book 43.

30

paid in accordance with the statute in respect to railroad land grants, and $1.25 which he insisted was all he was required to pay under the desert lana act, was rejected. Counsel for appellee pick out a sentence or two in the opinion in that case, and severing them from the balance, insist that this court decided that land within the place limits of a railroad land grant is wholly removed from

465

[327]

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