Margaret French v. Barber Asphalt Paving Company

• Citation: 21 S.Ct. 625,181 U.S. 324,45 L.Ed. 879
• Decision Date: 29 April 1901
• Docket Number: No. 498,498
• Parties: MARGARET FRENCH and Others, Plffs. in Err. , v. BARBER ASPHALT PAVING COMPANY
• Court: U.S. Supreme Court

181 U.S. 324

21 S.Ct. 625

45 L.Ed. 879

MARGARET FRENCH and Others, Plffs. in Err.,

v BARBER ASPHALT PAVING COMPANY.

No. 498.

Argued February 25, 26, 27, 1901.

Decided April 29, 1901.

This was a suit instituted in the circuit court of Jackson county, Missouri, by the Barber Asphalt Paving Company, a corporation whose business it was to construct pavements composed of asphalt, against Margaret French and others, owners of lots abutting on Forest avenue in Kansas City, for the purpose of enforcing the lien of a tax bill issued by that city in part payment of the cost of paving said avenue.

The work was done conformably to the requirements of the Kansas City charter, by the adoption of a resolution by the common council of the city declaring the work of paving the street, and with a pavement of a defined character, to be necessary, which resolution was first recommended by the board of public works of the city. This resolution was thereupon published for ten days in the newspaper doing the city printing. Thereafter the owners of a majority of front feet on that part of the street to be improved had the right, under the charter, within thirty days after the first day of the publication of the resolution, to file a remonstrance with the city clerk against the proposed improvement, and thereby to devest the common council of the power to make the improvement, and such property owners had the right by filing within the same period a petition so to do, to have such street improved with a different kind of material or in a different manner from that specified in such resolution. In this instance neither such a remonstrance nor petition was filed, and the common council, upon the recommendation of the board of public works, enacted an ordinance requiring the construction of the pavement. The charter requires that a contract for such work shall be let to the lowest and best bidder. Thereupon bids for the work were duly advertised for, and the plaintiff company being the lowest and best bidder therefor, a contract was, on July 31, 1894, entered into between Kansas City and the plaintiff for the construction of said pavement.

The contract expressly provided that the work should be paid for by the issuance of special tax bills, according to the provisions of the Kansas City charter, and that the city should not in any event be liable for or on account of the work. The cost of the pavement was apportioned and charged against the lots fronting thereon according to the method prescribed by the charter, which is that the total cost of the work shall be apportioned and charged against the lands abutting thereon according to the frontage of the several lots or tracts of land abutting on the improvement. The charge against each lot or tract of land was evidenced by a tax bill. The tax bill representing the assessment against each lot was, by the charter, made a lien upon the tract of land against which it was issued, and was prima facie evidence of the validity of the charge represented by it. Such lien can be enforced only by suit in a court of competent jurisdiction, against the owners of the land charged. No personal judgment was authorized to be rendered against the owner of the land. The right was expressly conferred on the owner of reducing the amount of the recovery by pleading and proving any mistake or error in the amount of the bill, or that the work was not done in a good and workmanlike manner.

The defendants pleaded and contended that the contract offered in evidence was a contract to construct the pavement and maintain and keep the street in repair for five years, and was contrary to the charter of Kansas City, void, and of no effect; and that the charter of Kansas City purports to authorize the paving of streets and to authorize special tax bills therefor, charging the cost thereof on the abutting property according to the frontage, without reference to any benefits to the property on which the charge was made and the special tax bills levied, and that such method of apportioning and charging the cost of the pavement was contrary to and in violation of the 14th Amendment to the Constitution of the United States.

The judgment of the circuit court of Jackson county was for the plaintiff company for the amount due on the tax bill, and for the enforcement of the lien. From this judgment an appeal was taken to the supreme court of Missouri, and on November 13, 1900, the judgment of the circuit court was affirmed, and thereupon a writ of error from this court was allowed.

Mr. Henry N. Ess for plaintiffs in error.

Messrs. Wm. C. Scarritt, Edward L. Scarritt, John K. Griffith, and Elliott H. Jones for defendant in error.

Mr. Justice Shiras delivered the opinion of the court:

In its opinion in this case the supreme court of Missouri said that 'the method adopted in the charter and ordinance of Kansas City, of charging the cost of paving Forest avenue against the adjoining lots according to their frontage, had been repeatedly authorized by the legislature of Missouri, and such laws had received the sanction of this court in many decisions. St. Louis use of Seibert v. Allen, 53 Mo. 44; St. Joseph v. Anthony, 30 Mo. 538; Neenon v. Smith, 50 Mo. 528; Kiley v. Cranor, 51 Mo. 541; Rutherford v. Hamilton, 97 Mo. 543, 11 S. W. 249; Moberly v. Hogan, 131 Mo. 19, 32 S. W. 1014; Farrar v. St. Louis, 80 Mo. 379.

'In the last-mentioned case Judge Norton for the court said:

"The liability of lots fronting on a street, the paving of which is authorized, to be charged with the cost of the work according to their frontage, having been thus so repeatedly asserted, the question is no longer an open one in this state, and we are relieved from the necessity of examining authorities cited by counsel for plaintiff condemning what is familiarly known as the 'foot-front rule."

'Learned counsel for defendant concede such was the state of the decided law of this state, and that the portion of the Kansas City charter known as the 9th article of the charter, which authorizes the cost of a pavement to be assessed against the lots fronting on the improvement according to their respective frontage, was framed after this court had fully considered and construed similar laws and sustained them against the charge of unconstitutionality, and the assessment now challenged was made under the construction given by this court.'

Accordingly, the supreme court of Missouri held that the assessment in question was valid, and the tax imposed collectable. And, in so far as the Constitution and laws of Missouri are concerned, this court is, of course, bound by that decision.

But that court also held, against the contention of the lotowners, that the provisions of the 14th Amendment to the Constitution of the United States were not applicable in the case; and our jurisdiction enables us to inquire whether the supreme court of Missouri were in error in so holding.

The question thus raised has been so often and so carefully discussed, both in the decisions of this court and of the state courts, that we do not deem it necessary to again enter upon a consideration of the nature and extent of the taxing power, nor to attempt to discover and define the limitations upon that power that may be found in constitutional principles. It will be sufficient for our present purpose to collate our previous decisions, and to apply the conclusions reached therein to the present case.

It may prevent confusion and relieve from repetition if we point out that some of our cases arose under the provisions of the 5th, and others under those of the 14th, Amendments to the Constitution of the United States. While the language of those amendments is the same, yet, as they were ingrafted upon the Constitution at different times and in widely different circumstances of our national life, it may be that questions may arise in which different constructions and applications of their provisions may be proper. Slaughter-House Cases, 16 Wall. 36, 77, 80, 21 L. ed. 394, 409.

Thus it was said, in Davidson v. New Orleans, 96 U. S. 97-103, 24 L. ed. 616-619:

'It is not a little remarkable that while this provision has been in the Constitution of the United States, as a restraint upon the authority of the Federal government, for nearly a century, and while, during all that time, the manner in which the powers of that government have been exercised has been watched with jealousy, and subjected to the most rigid criticism in all its branches, this special limitation upon its powers has rarely been invoked in the judicial forum or the more enlarged theater of public discussion. But while it has been a part of the Constitution, as a restraint upon the power of the states, only a very few years, the docket of this court is crowded with cases in which we are asked to hold that state courts and state legislatures have deprived their own citizens of life, liberty, or property without due process of law. There is here abundant evidence that there exists some strange misconception of the scope of this provision as found in the 14th Amendment. In fact, it would seem, from the character of many of the cases before us, and the arguments made in them, that the clause under consideration is looked upon as a means of bringing to the test of the decision of this court the abstract opinions of every unsuccessful litigant in a state court of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded.'

However, we shall not attempt to define what it is for a state to deprive a person of life, liberty, or property without due process of law, in terms which would cover every exercisc of power thus forbidden to the state, and exclude those which are not, but shall proceed, in the present case, on the assumption that the legal import of the phrase 'due process of law' is the same in both amendments. Certainly, it cannot be supposed that by the 14th...