not be excused from an obligation to account by saying that the flour had disappeared without its knowledge. It is argued that the relation between the banks was that of principal and agent, not of vendor and vendee; that it took the draft for collection. But the charge, as we view it, was not to the effect that the relation of vendor and vendee was created, but on the contrary it was distinctly stated to the jury that the Russo-Chinese Bank 'was obligated as an agent to act in good faith and protect the rights of the National Bank of Commerce in the collection of the draft,' and that as 'the agent' for the owner it 'was obligated to account for the amount of the draft, to account for the security which the bill of lading constituted.' In view of the special finding that the draft had been paid it is not necessary to inquire as to whether there would otherwise have been liability on the part of the plaintiff because of a failure to exercise reasonable care. The special finding, supported by adequate evidence, was based under the instructions of the court upon the transaction with Clarkson & Co. to which we have referred, and it must be deemed controlling. We find no instruction with reference to that transaction, or its legal effect if found to be as testified, which was prejudicial to the plaintiff.

Complaint is also made with respect to certain requests for instructions and rulings on the admission of evidence, but they are wholly without merit and it is unnecessary to review them. It is said that the Seattle bank suffered no loss because it had a guaranty from the Centennial Mill Company, but the Seattle bank in view of its relation to the commercial paper involved was entitled to demand an accounting from its correspondent, and on the same ground to resist this action for the recovery back of the money which it had received upon the draft. As we discover no error in the record, the judgment must be affirmed.

Judgment affirmed.

ST. LOUIS AND KANSAS CITY LAND COMPANY v. KANSAS CITY.

ERROR TO THE SUPREME COURT OF THE STATE OF MISSOURI.

No. 261. Argued March 7, 1916.-Decided June 5, 1916.

The extent of the authority conferred upon a city by its charter, the construction of such charter, and the validity, scope and effect of ordinances adopted by the city and of proceedings thereunder and the rights of parties thereto under state law, are matters of state law as to which the decision of the state court is controlling. A ruling as to the effect, with respect to supplemental proceeding, of the decree in a court of the same State holding a prior assessment void as to certain parties for want of required notice, does not present a Federal question.

An owner of property, which may be assessed for benefits in order to pay an award for property condemned, is not entitled, under the due process provision of the Fourteenth Amendment, to be made a party to the condemnation proceeding or to be heard as to the amount of the awards; due process of law requires only those whose property is to be taken for public improvement to have prior notice. The question under the Fourteenth Amendment is one of state power and not of state policy; of what the State must accord-not what it may grant or withhold in its discretion.

Differences due to voluntary action and diverse individual choice may arise under equal laws and not amount to denial of equal protection of the law within the meaning of the Fourteenth Amendment.

While all taxes and assessments are necessarily laid by some rule of apportionment, and a scheme of distribution which is palpably arbitrary and constitutes a plain abuse may be condemned as violating the Fourteenth Amendment, the mere fact that there may be inequalities is not enough to invalidate the action of a State. Where assessments are made by a political subdivision according to special benefits, the property owner is entitled to be heard as to the amount of his assessment and all matters properly entering into that determination, but he is not entitled to be heard not only as to the assessment on his property but also as to the assessments on all other property owners.

Where a state statute provides for a supplemental proceeding to correct errors in an assessment proceeding, nothing in the Federal Constitution prevents the inclusion in the supplemental proceeding of properties omitted from the original proceeding.

The Seventh Amendment has no application to an assessment or condemnation proceeding in a state court.

260 Missouri, 395, affirmed.

THE facts, which involve the constitutionality under the Fourteenth Amendment of proceedings for condemnation of land for a street widening and assessments for benefits in Kansas City, Missouri, are stated in the opinion.

Mr. I. N. Watson, Mr. Kenneth Mc C. DeWeese and Mr. H. M. Langworthy, with whom Mr. Edward White, and Mr. E. M. Jones were on the brief, for plaintiffs in

error.

Mr. Jesse C. Petherbridge and Mr. Arthur F. Smith, with whom Mr. Andrew F. Evans was on the brief, for defendant in error.

MR. JUSTICE HUGHES delivered the opinion of the court.

This was a supplemental proceeding to assess certain parcels of land in Kansas City, Missouri, for benefits. The assessments were for the purpose of meeting an unpaid portion of damages which had been awarded for property condemned in widening Sixth street. Judgment for the assessments was entered on the verdict of a jury and was affirmed by the Supreme Court of Missouri, in banc. 260 Missouri, 395. This writ of error is prosecuted by owners of property thus assessed.

In October, 1909, the Common Council of Kansas City passed an ordinance providing for the condemnation of property within specified limits and for the raising of the amount of the award by special assessments against property within a described benefit district in accordance with Article 6 of the City's charter. Proceedings ac

cordingly were then brought in the Municipal Court of Kansas City resulting in an award of $166,299.57 for property taken and in the making of assessments of like amount for benefits. There were over 13,000 different tracts within the benefit district. No appeal was taken from the judgment. The City collected on the assessments about $89,000. It was discovered that the publication of the required notice of the proceeding was defective and in an appropriate suit in equity, brought by the Union Pacific Railroad Company, a decree was obtained in favor of that company, and of certain intervenors, annulling the assessments against their properties; and no appeal was taken from that decree.

Thereupon, Kansas City attempted to repeal the original ordinance, presumably--as the state court suggestsfor the purpose of abandoning the proceeding and returning the assessments paid. At the suit of owners of the land condemned-who were entitled to the awardsdecree was entered enjoining the City from abandoning the condemnation proceedings. The City then enacted a 'supplemental or curative ordinance' basing its action on the authority of § 231 of Article 6 of the City's charter.

1 Section 23 is as follows:

When by

"SECTION 23. Defective Proceedings-Supplemental. reason of any error, defect, or omission in any proceedings, or in the verdict or judgment therein that may be instituted under the provisions of this Article, a portion of the private property sought to be taken, or some interest therein, cannot be acquired, or an assessment is made against private property which cannot be enforced or collected, or when, by reason of any such defect, private property in the benefit district is omitted, the city may, by ordinance, institute, carry on and maintain supplemental proceedings to acquire the right and title to such property or interest therein intended to be taken by the first proceeding, but which cannot on account of such defect, error or omission, be acquired thereunder, or to properly assess against any piece or parcel of private property against which an assessment was in the first proceeding erroneously made or omitted to be made, the proper

"The object of said sensible charter provision," it is said by the state court, "was to afford a remedy when by any error, defect or omission in condemnation proceedings, assessments made against private property cannot be enforced or collected or where property in the benefit district is omitted, etc. In such case it was provided that the city may by ordinance institute and carry on supplemental proceedings to make a proper assessment against any parcel of property in the benefit district erroneously omitted or erroneously made in the first proceeding, etc." 260 Missouri, p. 406.

Under this ordinance the supplemental proceeding was instituted in the Municipal Court. The notice required by the charter was given and the plaintiffs in error (with the exception of the Union Depot Bridge & Terminal Railroad Company) appeared. The jury returned a verdict which was "the same as to the amount of benefits as the verdict returned in the original proceeding." State ex rel. Graham v. Seehorn, 246 Missouri, 541, 552; see 260 Missouri, p. 406. An appeal was taken from the judgment to the Circuit Court of Jackson County. While

amount such private property, exclusive of the improvements thereon, is benefited by the proposed improvement to be determined by the verdict of the jury in such supplemental proceedings; and the original assessments may be revived, corrected, increased or diminished as may be necessary or equitable under the provisions of this Article for the original proceedings. Such supplemental proceedings shall be instituted and conducted as to the particular piece or pieces of private property sought to be acquired or assessed in like manner and with like effect as in the original proceedings, and shall be known and described as supplemental proceedings for the purposes specified in the original ordinance; and a supplemental verdict and assessment shall be made, confirmed and copies of the original verdict certified in every particular as in the original proceedings; and the assessments as established and corrected by such supplemental verdict shall be collected by the City Treasurer in the same manner and under like conditions and restrictions, powers and duties as in the case of original proceedings."