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:

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 re-
citing what had been done, approving it and
confirming the reassessment.

"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

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

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

"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.


[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 par-
cel of land; and the counsel shall have the
power to adjourn such hearing from time
to time, and shall have power, in their dis-
cretion, 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 pro-
ceedings 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 reassession
ment, 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 re-
assessment shall be passed in the same man-
ner as other ordinances."

"Sec. 8. Any person who has filed objec-
tions to such new assessment or reassessment,
as hereinbefore provided, shall have the right
to appeal to the superior court of this state is not questioned. (Davidson v. New Or
and county in which such city or town may leans, 96 U. S. 97, 105 [24: 616, 620]; Hagar
be situated."
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


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] 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]

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

and difficult are the questions involved? Re-
gard must always be had to the probable
necessities of ordinary cases. No hardship
to a particular individual can invalidate à
general rule. A reassessment implies, not
merely the fact of the improvement, but also
that one attempt had been made to collect
the cost and failed. Inquiry had been had
in the courts, and the one assessment set
aside. The facts were known.
time, therefore, does not seem unreasonably
Ten days'
short for presenting objections to a reassess-

"While we concede in the first instance to the legislature the authority to prescribe the time of the notice, we assert that this is not an absolute authority relieved from judicia! review. The shortening of the time and the limiting of opportunity to be informed through constructive notice may be such as to render the notice unavailing for the purpose for which notice is designed. If that 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."

We are unable to concur in these views. It may be that the authority of the legislature 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 minimum? How much time can be adjudged necessary as matter of law for preparing and filing objections? How many and intricate 462

plaintiff in error to suggest any injustice. And there is nothing in the case of this 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 immade on the street, on which its lots abutted, provement was made. The improvement consisted in grading, planking, and sidewalking. It is, to say the least, highly improbable that it could have been ignorant of the known also that such improvements have to fact that they were made. It must have 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 previous 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 counsel criticise a statement in the opinion of the supreme court in this case, that "it appears 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 counsel 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.

improvements, the residence of the plaintiff
In view, therefore, of the character of the
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
guaranties of right contained in the Federal
Constitution has been invaded.

The judgment of the Supreme Court of the
State of Washington is affirmed.

172 U. S.

BELLINGHAM BAY IMPROVEMENT COMPANY, that date. On account of changes and addi-
Plff. in Err.,



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:




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

"Provided, however, That the investigation
of said claim shall be made upon the follow-
ing basis: The said court shall ascertain
the additional cost which was necessarily in-
curred 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 spec-
ifications required and delays in the prosecu-
tion of the work: Provided, That such ad-
ditional 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.

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 aforesaid, and then only
when such advance could not have been avoid-

el 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 ad-
dition to the facts of the contract, perform-
ance, time of completion and payment, found

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


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


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



(See S. C. Reporter's ed. 321-326.) Additional compensation under government contract-res judicata-findings of fact.


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.


A prior 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.


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


"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, without 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] terial which would be made necessary to be used in complying with said changes. "While the work was so delayed during

[No. 394.]

Submitted December 12, 1898. Decided January 3, 1899.

from a

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

and within the 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 expiration of the contract period. The increased 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 in463


ereased cost of the labor and material fur- refer to the period commencing at the time nished by him, consisting of two items of fixed in the contract for the completion of the $12,608.71 and $14,315.66. From this judg-work, for in his petition it is said that "durment the United States appealed to this ing 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] to follow the investigation made by counsel of the various proceedings before Congress to see if there cannot be disclosed some unexpressed intent on its part to authorize payment for every advance in the cost of labor and material. The language of the act is too plain to justify such investigation.

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 [324]against 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

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:

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


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 peti

court may not go. If equitably the petitioner, to recover additional compensation tioner is entitled to more compensation, it for the construction of a vessel other than must be sought by direct appropriation of the one described in the present suit, and further legislation of Congress. 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:

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 is 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 allowance, is conclusive upon the question. There are no terms to be distinguished except the

"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 was finished could have been considered, and if Congress intended to either permit or forbid an allowance for any advance in the price of labor and material during the entire progress of the work, it was easy to have said so. That it qualified such a general provision by limiting it to a particular term, and that term one created by the action of the government, excludes all doubt as to the meaning of the words "prolonged term." Obviously the petitioner himself understood that they

"The $61.571.67 set forth in the tenth of the final findings in the Nauset case (see X[326) finding above) was composed of $24,634 enhanced cost after February 10, 1864, the expiration of the contract term for the constructon of the Nauset, and the remainder, $36,937.67, was enhanced cost of labor and material furnished by Donald McKay within the contract term (June 10, 1863, to February 10, 1864), but the court did not separate the allowance in its findings." 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 judg- limits of the grant to the Union Pacific Railment was offered in evidence, and the only way Company. The entry was approved by question considered and decided by this the local land office; the claimant paid the court was the effect of an alleged failure to sum of $118.28, being 50 cents per acre, the fully plead res judicata. 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 judicată, 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.

The judgment of the Court of Claims will be reversed, and the case remanded to that court with directions to enter a judgment for the claimant, less the two amounts of $12,608.71 and $14,815.66, the increased cost of labor and material.






Valid entries can be made under the desert land act, of land within the place limits of a land grant to railroad corporations.

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

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

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

2. One who voluntarily abandons a valid en-
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.

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 re-
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-

[No. 82.]

Argued December 9, 1898. Decided January ence between $2.50 per acre, which he had 3, 1899. 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 30 465

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


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.

Messrs. Russell Duane, Harvey Spald ing, and E. W. Spalding for appellee.

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

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