« ForrigeFortsett »
simply between citizens of the same state. It is not necessary in this court to refer to the difference between residence and citizenship. Neither is synonymous with the other and neither includes the other. A British subject or a citizen of Ohio may be a resident of Tennessee, and entitled to the benefit of this statute. A citizen of Tennessee may, like these plaintiffs in error, be a resident of and doing business in Ohio and not entitled to its benefit. It will be time enough to consider the question discussed in the opinion when it appears that a state has attempted to discriminate between its own citizens and citizens of other states, and the courts of the state have affirmed the validity of such discrimination.
I am unable to concur in the opinion of the court in this case. In my judgment it misconceives the language of the statute, the issues presented by the pleadings, and the decision of the state court. The act does not discriminate between citizens of Tennessee and those of other states. Its language is creditors "residents of this state shall have a priority over all simple contract Taking the statute as it reads, and assumereditors being residents of any other coun- ing that the legislature of Tennessee meant try or countries." The allegation of the that which it said, the question is whether amended bill is, "your orators are all resi- a state, permitting a foreign corporation dents of the state of Tennessee, and were which is not engaged in interstate commerce such at the time the various debts sued on to come into its territory and there do busiin this cause were created," and that by vir- ness, has the power to protect all persons retue of the statute they are entitled to prior- siding within its limits who may have deality over the "defendant, Rogers, Brown, & ings with such foreign corporation, by reCo., and all other creditors of said insolvent quiring it to give them a prior security on corporation who do not reside in the state of its assets within the state. The principle[2644 Tennessee, or did not so reside at the time underlying this statute is that a state, their credits were given." The intervening which can have no jurisdiction beyond its petition of the plaintiffs in error, Blake and territorial limits, has the power in reference Rogers, Brown, & Co., alleges "that they are to foreign corporations permitted to do busiresidents of the state of Ohio, and were at ness therein to protect all persons within the times and dates hereinafter named en- those limits, whether citizens or not, in regaged in business in said state, their resi- spect to claims upon the property thereof dences, offices, and places of business being also within those limits. That a state may at the city of Cincinnati." The decree of keep such a corporation out of its territory the court of chancery appeals adjudges "that is conceded; and that, in permitting it to all of the creditors of said company who re-enter, the state may impose such conditions sided in the state of Tennessee are entitled to as it sees fit, is, as a general proposition, priority of payment out of all of the assets of also admitted. In Crutcher v. Kentucky, the company of every kind over all of the 141 U. S. 47, 59, [35: 649, 653], it was said: creditors of said company who do not reside "The insurance business, for example, canin the state of Tennessee." And the decree not be carried on in a state by a foreign corof the supreme court of the state is in sub-poration without complying with all the constantially the same language,_ adjudging ditions imposed by the legislation of that "that all of the creditors of the Embreeville state. So with regard to manufacturing Freehold Land, Iron, & Railway Company, corporations, and all other corporations Limited, who resided in the state of Tennes- whose business is of a local and domestic see, are entitled to priority of payment out nature, which would include express comof all of the assets of said company, both panies whose business is confined to points real and personal, over all of the other cred- and places wholly within the state. The itors of said company who do not reside in cases to this effect are numerous. Bank of the state of Tennessee, whether they be resi- Augusta v. Earle, 13 Pet. 519 [10: 274]; dents of other states of the United States or Paul v. Virginia, 8 Wall. 168 [19: 357]; Livof the Kingdom of Great Britain." So that erpool & L. L. & F. Insurance Company v. neither the statute, the pleadings, nor the Massachusetts, 10 Wall. 566 [19: 1029]; decree raise any question of citizenship, or Cooper Manufacturing Company v. Ferguson, give any priority of right to citizens of Ten- 113 U. S. 727 [28: 1137]; Philadelphia Fire nessee over citizens of other states, but only Association v. New York, 119 U. S. 110 [30: discriminate between residents, and give res- 342]." idents of the state a priority. I think it improper to go outside of a case to find a question which is not in the record simply because it may be discussed by counsel for one party, who apparently decline to recognize any difference between residence and citizenship. For all this record discloses, the plaintiffs in error other than the corporation may have been citizens of the state of Tennessee, temporarily residing and doing business in Ohio, and the controversy one
709.) As to the other plaintiffs in error,
 *Mr. Justice Brewer, with whom the
Everyone dealing with a foreign corporation is bound to take notice of the statutes of the state imposing conditions upon that corporation in respect to the transaction of its business within the state, just as he must take notice of any mortgage or other encumbrance placed by the corporation upon its property there situated. A state may, and often does, provide that persons furnishing supplies to and doing work for a corporation shall have a lien upon the property of that
corporation prior to any mortgage. The foreign corporations to secure home credit validity of such legislation has always been ors, there are frequent illustrations of dissustained, and they who loan their money to crimination based upon the matter of resi. the corporation do so with notice of the dence. Often nonresident plaintiffs are relimitation, and have no constitutional right quired to give security for costs when none of complaint if their mortgage is thereafter is demanded of resident suitors. Attachpostponed to simple-contract obligations. If ments will lie in the beginning of an action, voluntarily the corporation placed a mortgage authorizing the seizure of property upon the upon all its assets within the state to secure ground that the defendant is a nonresident,
a debt to a single creditor residing within when no such seizure is permitted in case (265)* the state, and such mortgage was duly re- of resident defendants. These and many
corded, no one would have the hardihood to similar illustrations, which might be sug-
til all its liabilities due to any person or cor-
within the state as like security. Looking Cooper Manufacturing Co. v. Ferguson, 113 (266]at it *simply as a question of power on the U. S. 727, 732 (28: 1137, 1138], this court
part of the state, what difference can there said that 'the right of the people of a state
It will be perceived that the statute of Col.
bering its property situate in the state to the the California creditors find that all the as-
property also within its jurisdiction, or im. have acted, the converse is also true, and so (268]pose conditions on *foreign corporations doing a game of seesaw may be established between
business therein, which amount to such pro- the courts of the two states. For these,
VILLAGE OF NORWOOD, Appt.,
ELLEN R. BAKER.
(See S. C. Reporter's ed. 269–303.)
ment-special assessment, when invalid
injunction-special benefits —taking of vantage of one who is not only a nonresident
private property for public use, without
to be made or secured to the owner of private
property when it is taken by a state, or un-
der its authority, for public use.
property, of the cost of a public improvement
in substantial excess of the special benefits having its home office in New York comes in.
accruing to him, is, to the extent of such ex-
erty by the front foot, without taking spe-
cial benefits into account, for the entire cost of that New York corporation will be known
and expense of opening a street, including, in New York by those who are nearer to its
not only the amount to be paid for the land,
but the cost and expense of the proceedings,
Is a taking of private property for public use
should enjoin the whole assessment, without
considering whether the amount is in excess tory provisions of that state, seize by at- 15. Payment or tender of the amount of bene
of the special benefits to the property, or not. tachment all the assets there situated. The
fits received from an improvement 18 not insolvency is thereafter made public, and
necessary in order to obtain an injunction
against an Illegal assessment which is based narrow, straighten, extend, keep in order,
a rule or system that has no reference to and repair, and light streets, alleys, public special beneats.
grounds, and buildings, wharves, landing (No. 34.)
places, bridges, and market spaces within the
corporation, and to appropriate private propSubmitted May 3, 1898. Decided December erty for the use of the corporation. And 12, 1898.
“each city and village may appropriate, enter
upon, and hold real *estate within its corpo- A ,
Court of the United States for the South more shall be taken or appropriated than 1s ern District of Ohio ad judging that a certain reasonably necessary for the purpose to assessment for opening a street is in viola- which it is to be applied: 1. For opening, tion of the constitutional amendment forbid- widening, straightening
and extending ding deprivation of property without due streets, alleys, and avenues; also for obtainprocess of law. Affirmed.
ing gravel or other material for the improveSee same case below, 74 Fed. Rep. 997.
ment of the same, and for this purpose the The facts are stated in the opinion.
right to appropriate shall not be limited to Mr. William E. Bandy for appellant. lands lying within the limits of the corporaMr. Charles W. Baker for appellee.
tion. .. 1 Rev. Stat. Ohio (1890) $ 1692,
subdiv. 18 and 33, and § 2232, pp. 429, 430, DETO). *Mr. Justice Harlan delivered the opin. title, Cities and Villages ; Enumeration of 'ion of the court:
Powers, and p. 572, title, Appropriation by This case arises out of the condemnation Cities and Villages of Private Property to of certain lands for the purpose of opening a Public Use. street in the village of Norwood, a municipal Other provisions of the statute prescribe corporation in Hamilton county, Ohio. the steps to be taken in the appropriation by
The particular question presented for con- a municipal corporation of private property
sideration involves the validity of an ordi- for public purposes. $9 2233 to 2261 in 171jnance of that village, assessing upon *the ap
clusive. pellee's land abutting on each side of the new It is further provided by the statutes of street an amount covering, not simply a sum Ohio (1890) title XII. Assessments, etc., equal to that paid for the land taken for the chap. 4, as follows: street, but, in addition, the costs and ex- "§ 2263. When the corporation appropripenses connected with the condemnation pro- ates, or otherwise acquires, lots or lands for ceedings.
the purpose of laying off, opening, extend. By the final decree of the circuit court of ing, straightening, or widening a street, al. the United States it was adjudged that the ley, or other public highway, or is possessed assessment complained of was in violation of of property which it desires to improve for the Fourteenth Amendment of the Constitu- street purposes, the council may assess the tion of the United States forbidding any cost and expenses of such appropriation or state from depriving a person of property acquisition, and of the improvement, or of without due process of law; and the village either, or of any part of either, upon the was perpetually enjoined from enforcing the general tax list, in which case the same shall assessment. 74 Fed. Rep. 997.
be assessed upon all the taxable real and per. The present appeal was prosecuted direct. sonal property in the corporation. ly to this court, because the case involved the "g 2264. In the cases provided for in the construction and application of the Consti- last section, and in all cases where an imtution of the United States.
provement of any kind is made of an existIt will conduce to a clear understanding of ing street, alley, or other public highway, the case to ascertain the powers of the vil. the council may decline to assess the costs lage under the Constitution and statutes of and expenses in the last section mentioned or Ohio, and to refer somewhat in detail to the any part thereof, or the costs and expenses proceedings instituted for the opening of the or any part thereof of such improvement, street through appellee's property.
except as hereinafter mentioned, on the genBy the Constitution of Ohio it is declared : eral tax list, in which event such costs and "Private property shall ever be held invio- expenses, or any part thereof which may not late, but subservient to the public welfare. be so assessed on the general tax list, shall When taken in time of war or other public be assessed by the council on the abutting exigency imperatively requiring its immedi. and such adjacent and contiguous or other ate seizure, or for the purpose of making or benefited lots and lands in the corporation, repairing roads, which shall be open to the either in proportion to the benefits which public, without charge, a compensation shall may result from the improvement, 'or accord- be made to the owner, in money, and in all ing to the value of the property assessed, or other cases, where private property shall be by the front foot of the property bounding taken for public use, a compensation therefor and abutting upon the improvement, as the shall first be made in money; and such com-council by ordinance setting forth specifically pensation shall be assessed by a jury, with the lots and lands to be assessed, may de out deduction for benefits to any property of termine before the improvement is made, and the owner.” Const. Ohio 1851, art. 1, § 19, in the manner and subject to the restrictions Bill of Rights; Bates's Anno. Ohio Stat. vol. herein contained; and the assessments shall 3, p. 3525.
be payable in one or more instalments, and Cities and villages in Ohio are by statute at such times as the council may prescribe. given power to lay off, establish, open, widen,
1 Rev. Stat. Ohio, p. 581.
Section 2271 provides: “In cities of the of any improvement contemplated in this first grade of the first class, and in corpora- chapter shall include the purchase money of tions in counties containing a city of the first real estate, or any interest therein, when the grade of the first class, the tax or assess- same has been acquired by purchase, or the ment especially levied or assessed upon any value thereof as found by the jury, where the lot or land for any improvement shall not, same has been appropriated, the costs and except as provided in g 2272, exceed twenty- expenses of the proceedings, the damages asfive per centum of the value of such lot or sessed in favor of any owner of adjoining land after the improvement is made, and the lands and interest thereon, une costs and excost exceeding that per centum shall be paid penses of the assessment, the expense of the by the corporation out of its general revenue; preliminary and other surveys, and of print
and whenever any street or avenue ing, publishing the notices and ordinances reis opened, extended, straightened, or widened, quired, including notice of assessment, and the special assessment for the cost and ex- serving notices on property owners, the cost pense, or any part thereof, shall be assessed of construction, interest on bonds, where only on the lots and lands bounding and bonds have been issued in anticipation of the abutting on such part or parts of said street collection of assessments, and any other necor avenue so improved, and shall include of essary expenditure." such lots and lands only to a fair average By an ordinance approved October 19th, depth of lots in the neighborhood, but shall 1891, the village declared its intention to conalso include other lots and parts thereof and demn and appropriate, and by that ordinance lands to such depth; and whenever at least condemned and appropriated, the lands or one half in width of any street or avenue has grounds in question for the purpose of openbeen dedicated for such purpose from the lots ing and extending Ivenhoe avenue; and in or. and lands lying on one side of the line of such der to make such appropriation effectual, the street or avenue, and such street or avenue ordinance directed the institution of the necis widened by taking from lots and lands on essary proceedings in court for an inquiry the other side thereof, no part of the cost and and assessment of the compensation to be expense thus increased (incurred] shall be paid for the property to be condemned. assessed upon the lots and lands lying on The ordinance provided that the cost and said first-mentioned side, but only upon the expense of the condemnation of the property, other side, and as aforesaid, but said special including the compensation paid to the ownassessment shall not be in any case in excess ers, the cost of the condemnation proceedings, of benefits.” 1 Rev. Stat. Ohio, p. 513. the cost of advertising and all other costs
Section 2272 relates to assessments for im. and the interest on bonds issued, if any, provements made in conformity with the pe. should be assessed "per front foot upon the tition of the owners of property.
property bounding and abutting on that By section 2277 it is provided that “in part of Ivenhoe *avenue, as condemned and[ 2753 cases wherein it is determined to assess the appropriated herein"—the assessments paya. whole or any part of the cost of an improve- ble in ten annual instalments if deferred, and
ment upon the lot or lands bounding or abut. the same collected as prescribed by law and (274]ting *upon the same, or upon any other lots in the assessing ordinance thereafter to be
or lands benefited thereby, as provided in $ passed.
and it was ordered that the village have imSection 2284 is in these words: “The cost | mediate possession and ownership of the 172 U. S.