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bering its property situate in the state to the the California creditors find that all the asinjury or exclusion of any citizen of the sets of the corporation within their stato state, creditor of such corporation, and fur- have been seized by creditors outside tho ther provided that no mortgage given by state, and they are driven to the state of such foreign corporation to secure a debt New York, where the corporation was orcreated in another state should take effect ganized, where its home *office and home as-[269) against any citizen of the state until all li. sets are, to see what share in the unappropri. abilities due to any person or corporation ated assets they can obtain, while the New in the state had been paid and extinguished. York creditors, by reason of their early in. But this court said, and I think correctly, formation, secure full payment. Practically, that there could be no doubt of the validity the effect is to compel the state to discrimi. of these statutory provisions. It may be nate in favor of the New York against the said, and said truthfully, that the attention home .creditors. The suggestion that after of the court was not specially directed to the New York creditors have perfected their this particular portion of the statute, and liens upon the assets in California, the courts hence that the decision cannot be taken as of that state will stay proceedings until they authority. Yet the section was spread be see that the New York courts have given full fore the court, it is quoted in its opinion, protection to the California creditors in the and it was so obviously constitutional that assets in New York, is visionary and impracneither counsel nor court had any doubt ticable. There may be assets in twenty thereof. I note this case in order to suggest states, and there is no control by the courts the objectionable evolution of the thought of one state over proceedings in the courts of that a state may not protect those persons other states. Of course, if the California who are within its jurisdiction in respect to courts can wait till the New York courts

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,
tection. Ten years ago a statute of Colorado among other reasons, I am constrained to
guaranteeing priority to citizens of the state dissent from this opinion and judgment.
over all other creditors, even those by mort- I am authorized to state that the Chief
gage, was by all parties, counsel, and by court, Justice concurs in this dissent.
conceded to be free from objection, while to-
day a statute of Tennessee, in no way dis-
criminating between citizens, but only be
tween residents and in respect to foreign cor- VILLAGE OF NORWOOD, Appt.,
porations, is declared to be so plainly at va-
riance with the Constitution of the United
States that it must be adjudged void.

ELLEN R. BAKER.
The doctrine of this opinion is that a state
has no power to secure protection to persons

(See S. C. Reporter's ed. 269–303.) within its jurisdiction, citizens or noncitizens, in respect to property also within its Due process of law-cost of public improve jurisdiction, because, forsooth, such protec

ment-special assessment, when invalid tion may in some cases work to the disad- injunction-special benefits -taking of vantage of one who is not only a nonresident

private property for public use, without but also not a citizen of the state. It seems to

compensation. me that the practical working out of this doctrine will be, not that the state may not dis- 1. Due process of law requires compensation criminate in favor of its own residents as

to be made or secured to the owner of private against nonresidents, but that the state

property when it is taken by a state, or unmust discriminate in favor of nonresidents

der its authority, for public use. and against its own residents. Take this il. 2. The exaction from the owner of private lustration: A corporation organized and

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. to California to do business. The state of cess, a taking, under the guise of taxation, California attempts to require that its as- of private property for public use without sets within the state shall be kept as a pri- compensation. mary security for home creditors. This 3. A special assessment upon abutting propcourt declares that such requisition is un

erty by the front foot, without taking speconstitutional. The solvency or insolvency

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, home office sooner than by people in Cali- Is a taking of private property for public use fornia. Insolvency is impending. The cred. without compensation. itors in New York, near the home office, and 4. An injunction against a special assessment familiar therefore with its exact condition, which is illegal because it rests upon a basis ascertaining its approaching insolvency, send that excludes any consideration of benefits to California, where there are assets, and,

should enjoin the whole assessment, without availing themselves of the ordinary statu

considering whether the amount is in excess tory provisions of that state, seize by at 6. 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 is not insolvency is thereafter made public, and necessary in order to obtain an injunction

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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-[272] 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-[273] 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.

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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 § 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 nec. or 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 orand 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[ 275j cases wherein it is determined to assess the appropriated herein"—the assessments payawhole 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 ß passed. 2264, the council may require the board of Under that ordinance, application was improvements, or board of public works, as made by the village to the probate court of the case may be, or may appoint three dis Hamilton county for the empaneling of a juinterested freeholders of the corporation or ry to assess the compensation to be paid for vicinity, to report to the council an estimated the property to be taken. A jury was accordassessment of such cost on the lot or lands ingly empaneled, and it assessed the plainto be charged therewith, in proportion, as tiff's compensation at $2,000, declaring that nearly as may be, to the benefits which may they made the "assessment irrespective of result from the improvement to the several any benefit to the owner from any improvelots or parcels of land so assessed, a copy of ment proposed by said corporation.” which assessment shall be filed in the office The assessment was confirmed by the court, of the clerk of the corporation for public in the amount assessed was paid to the owner, spection.”

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.

448

premises for the uses and purposes specified | ing the same from year to year in an amount in the ordinance.

of about $13 per annum; and the village adThe property condemned is indicated by the mitted that the assessment had been placed following plat:

upon the tax duplicate, and sent to the cour

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[276] *After the finding of the jury the village, ty treasurer for collection, as a lion and

council passed an ordinance levying and as charge against the abutting property owned sessing “on each front foot of the several lots by the plaintitf. of land bounding and abutting on Ivenhoe But the village alleged that the appropriavenue, from Williams avenue to a point 300 ation proceedings and consequent assessment feet north,” certain sums for each of the were all in strict conformity with the law years 1892 to 1901 inclusive, “to pay the cost and statutes of the state of Ohio and in pur and expense of condemning property for the suance of due process of law; that the open extension of said Ivenhoe avenue between the ing and extension of Ivenhoe avenue constipoints aforesaid (from Williams avenue to tuted a public improvement for which the a point 300 feet north] together with the in: abutting property was liable to assessment terest on the bonds issued to provide a fund under the laws of Ohio; that the counsel to pay for said condemnation.

fees, witness fees, and costs included in such By the same ordinance provision was made total assessment were a part of the legitimate for issuing bonds to provide for the payment expenses *of such improvement; and that at 277, of the cost and expense of the condemnation, any event an expense had been incurred by which included the amount found by the jury the municipal corporation in opening the as compensation for the property taken, the street “equal to the full amount of the said costs in the condemnation proceedings, solic- assessment, which is a proper charge against itor and expert witness fees, advertising, etc.; the complainant's abutting property. in all, $2,218.58.

It was agreed at the hearing of the present The present suit was brought to obtain a case that the sum awarded by the verdict of decree restraining the village from enforcing the jury was paid to and received by the the assessment in question against the abut- plaintiff, and that it was that sum, together ting property of the plaintiff.

with the costs and charges, that the village It was conceded that the defendant assessed undertook to assess back upon the land upon back upon the plaintiff's 300 feet of land up either side of said strip of land. on either side of the strip taken (making 600 The plaintiff's suit proceeded upon the feet in all of frontage upon the strip con ground, distinctly stated, that the assessdemned) the above sum of $2,218.58, paya- ment in question was in violation of the Four. ble in instalments, with interest at six per teenth Amendment providing that no state cent, the first instalment being $354.97 and shall deprive any person of property without the last or tenth instalment $235.17, lessen. I due process of law nor deny to any person

use.

within its jurisdiction the equal protection , erty shall be considered as benefited by a prie
of the laws, as well as of the bill of rights of posed improvement."
the Constitution of Ohio.

But the power of the legislature in these It has been adjudged that the due process matters is not unlimited. There is a point of law prescribed by that Amendment re- beyond which the legislative department, quires compensation to be made or secured even when exerting the power of taxation, to the owner when private property is taken may not go consistently with the citizen's by a state or under its authority for public right of property.. As already indicated, the

Chicago, Burlington & Q. R. R. Co. v. principle underlying special assessments to Chicago, 166 U. S. 226, 241 [41: 979, 986]; meet the cost of public improvements is that Long Island Water Supply Co. v. Brooklyn, the property upon which they are imposed is 166 U. S. 685, 695 [41: 1165, 1168].

peculiarly benefited, and therefore the own. The taking of the plaintiff's land for the ers do not, in fact, pay anything in excess of street was under the power of eminent domain * what they receive by reason of such improve-[279) -a power which this court has said was the ment. But the guaranties for the protection offspring of political necessity, and insep- of private property would be seriously im. arable from sovereignty unless denied to it paired, if it were established as a rule of by the fundamental law. Scarl v. Lake constitutional law, that the imposition by County School District No. 2, 133 U. S. 553, the legislature upon particular private prop562 [33: 740,746). But the assessment of erty of the entire cost of a public improvethe abutting property for the cost and ex ment, irrespective of any peculiar benefits pense incurred by the village was an exer- accruing to the owner from such improvecise of the power of taxation. Except for ment, could not be questioned by him in the the provision of the Constitution of Ohio courts of the country. It is one thing for above quoted, the state could have author. the legislature to prescribe it as a general ized benefits to be deducted from the actual rule that property abutting on a street value of the land taken, without violating opened by the public shall be deemed to have the constitutional injunction that compen- been specially benefited by such improvement, sation be made for private property taken for and therefore should specially contribute to public use; for the benefits received could the cost incurred by the public. It is quite be properly regarded as compensation pro a different thing to lay it down as an abso

tanto for the property appropriated to public lute rule that such property, whether it is [278]use. But *does the exclusion of benefits from in fact benefited or not by the opening of

the estimate of compensation to be made for the street, may be assessed by the front foot the property actually taken for public use au- for a fixed sum representing the whole cost thorize the public to charge upon the abut- of the improvement, and without any right ting property the sum paid for it, together in the property owner to show, when an as. with the entire costs incurred in the condem-sessment of that kind is made, or is about to nation proceedings, irrespective of the ques- be made, that the sum so fixed is in excess of tion whether the property was benefited by the benefits received. the opening of the street

In our judgment the exaction from the Undoubtedly abutting owners may be sub- owner of private property of the cost of a jected to special assessments to meet the ex. public improvement in substantial excess of penses of opening public highways in front the special benefits accruing to him is, to the of their property-such assessments, accord extent of such excess, a taking, under the ing to well-established principles, resting guise of taxation, of private property for upon the ground that special birdens may be public use without compensation. We say imposed for special or peculiar benefits ac substantial excess," because exact equality cruing from public improvements. Mobile of taxation is not always attainable, and for County v. Kimball, 102 U. S. 691, 703, 704 that reason the excess of cost over special [26: 238, 242); Illinois Central Railroad Co. benefits, unless it be of a material character, v. Decatur, 147 U. S. 190, 202 [37: 132, 136); ought not to be regarded by a court of equity Bauman v. Ross, 167 U. S. 548, 589 [42: 270, when its aid is invoked to restrain the en288), and authorities there cited. And ac-forcement of a special assessment. cording to the weight of judicial authority, In Illinois Central Railroad Co. v. Decathe legislature has a large discretion in de tur, 147 U. S. 190,202 (37: 132, 136),—where fining the territory to be deemed specially it was held that a provision in the charter benefited by a public improvement, and of a railroad company exempting it from which may be subjected to special assessment taxation did not exempt it from a municipal to meet the cost of such improvements. In assessment imposed upon its land for grad. Williams v. Eggleston, 170 U. S. 304, 311 ing and paving a street,--the decision rested [42: 1047, 1050), where the only question, as upon the ground that a special assessment this court stated, was as to the power of the proceeds on the theory that the property legislature to cast the burden of a public in charged therewith derives an increased value provement upon certain towns, which had from the improvement, “the enhancement in been judicially determined to be towns ben- value being the consideration for the charge.” efited by such improvement, it was said: *In Cooley on Taxation (2d ed. chap. 20)(280) "Neither can it be doubted that, if the state the author, in considering the subject of taxConstitution does not prohibit, the legisla- ation by special assessment, and of estimat. ture, speaking generally, may create a new ing benefits conferred upon property by a taxing district, determine what territory public improvement, says that while a gen. shall belong to such district and what prop-'eral levy of taxes rests upon the ground that

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