96 U.S. 97 (1878), Davidson v. City Of New Orleans

Citation:96 U.S. 97, 24 L.Ed. 616
Case Date:January 07, 1878
Court:United States Supreme Court

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96 U.S. 97 (1878)

24 L.Ed. 616




United States Supreme Court.

January 07, 1878


ERROR to the Supreme Court of the State of Louisiana.

On the 7th of December, 1871, the petition of the city of New Orleans and the administrators thereof was filed in the Seventh District Court for the Parish of Orleans, setting forth an assessment on certain real estate, made under the statutes of Louisiana, for draining the swamp lands within the parishes of Carroll and Orleans; and asking that the assessment should be homologated by the judgment of the court. The estate of John Davidson was assessed for various parcels in different places for about $50,000. His widow and testamentary executrix appeared in that court and filed exceptions to the assessment; and the court refused the order of homologation,

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and set aside the entire assessment, with leave to the plaintiffs to present a new tableau.

On appeal from this decree, the Supreme Court of Louisiana reversed it, and ordered the dismissal of the oppositions, and decreed that the assessment-roll presented be approved and homologated, and that the approval and homologation so ordered should operate as a judgment against the property described in the assessment-roll, and also against the owner or owners thereof. Mrs. Davidson then sued out the writ of error by which this judgment is now brought here for review.


Mr. James D. Hill and Mr. John D. McPherson for the plaintiff in error.

The legislation of Lquisiana, under which the judgment below was rendered, deprives the plaintiff in error of her property without due process of law. The jurisdiction of this court is, therefore, established. Bank of Columbia v.Okely, 4 Wheat. 244; Loan Association v. Topeka, 20 Wall. 655; United States v. Cruikshank, 92 U.S. 542; Munn v. Illinois, 94 id. 113; People v. Hurlbut, 24 Mich. 44; Cooley, Taxation, 486, 487.

The legislature cannot impose upon the owner of lands a personal obligation to pay an assessment which is a charge upon them. Taylor v. Palmer, 31 Cal 240; Neenan v. Smith, 50 Mo. 525, followed in 56 id. 286, 350.

The legislature, by employing a private corporation to do the drainage of the city of New Orleans, on account of which the assessment was made, fixing the price and requiring that warrants therefor shall be issued and indorsed, compelled the city to make a contract. This was beyond the legislative power. Atkins v. Randolph, 31 Vt. 226; Hampshire v. Franklin, 16 Mass. 76; Taylor v. Porter, 4 Hill (N. Y.), 143; Brummer v. Litchfield, 2 Greenl. (Me.) 28; People v. Detroit, 28 Mich. 228; Sharpley v. Philadelphia, 21 Pa. 165; Washington Avenue Case, 69 id. 362; Sleight v. People, 7 Chic. Leg. News, 292; The People v. The Mayor, 57 Ill. 18; People v. Salomon, id. 38; People v. Chicago, id. 582; Madison County v. People, 58 id. 463;Hessler v. The Drainage Commissioners, 53 id. 105; Livingston v. Wider, id. 302.

The assessment was made before any work had been done.

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The only ground, however, on which special assessments are imposed is that the property assessed is benefited. Wright v. Boston, 9 Cush. 232, 241; Schinly v. Commonwealth, 30 Pa. 29, 57; Sharp v. Speir, 4 Hill, 82; Matter of Opening Streets, 20 La. Ann. 497; Reeves v. Treasurer Wood County, 8 Ohio St. 338.

In this case, no benefit whatever inured to the plaintiff in error, and the price was exorbitant.

Mr. Philip Phillips, contra.

The fifth amendment to the Constitution, which declares that no person shall be 'deprived of life, liberty, or property without due process of law, nor shall private property be taken for public use without just compensation,' is a limitation on the powers granted by that instrument to the Federal government, and not a restraint upon the States. Barron v. The Mayor and City Council of Baltimore, 7 Pet. 243; Withers v. Buckley et al., 20 How. 84; Twitchell v. The Commonwealth, 7 Wall. 321.

The fourteenth amendment, which operates on the legislation of the several States, in no wise affects their police power. Commonwealth v. Alger, 7 Cush. (Mass.) 84; Thorpe v. Rutland Railroad, 27 Vt. 149; Slaughter-House Cases, 16 Wall. 36; Cooley, Const. Lim. 509; Dillon, Corp., sect. 598.

The power here in question is of that character, and the mode of exercising it presents no matter which can be reexamined here.

MR. JUSTICE MILLER delivered the opinion of the court.

The objections raised in the State courts to the assessment were numerous and varied, including constitutional objections to the statute under which the assessment was made, and alleged departures from the requirements of the statute itself. And although counsel for the plaintiff in error concede, in the first sentence of their brief, that the only Federal question is, whether the judgment is not in violation of that provision of the Constitution which declares that 'no State shall deprive any person of life, liberty, or property without due process of law, the argument seems to suppose that this court can correct any other error which may be found in the record.

1. It is said that the legislature had no right to organize a

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private corporation to do the work, and, by statute, to fix the price at which the work should be done.

2. That the price so fixed is exorbitant.

3. That there may be a surplus collected under the assessment beyond what is needed for the work, which must in that event go into the city treasury.

Can it be necessary to say, that if the work was one which the State had authority to do, and to pay for it by assessments on the property interested, that on such questions of method and detail as these the exercise of the power is not regulated or controlled by the Constitution of the United States?

Of a similar character is the objection much insisted on, that, under the statute, the assessment is actually made before, instead of after, the work is done. As a question of wisdom,--of judicious economy,--it would seem better in this, as in other works which require the expenditure of large sums of money, to secure the means of payment before becoming involved in the enterprise; and if this is not due process of law, it ought to be,

There are other objections urged by counsel which may be referred to hereafter, but we pause here to consider a moment the clause of the Constitution relied on by plaintiff in error. It is part of sect. 1 of the fourteenth amendment. The section consists of two sentences. The first defines citizenship of the States and of the United States. The next reads as follows:----

'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law.'

The section was the subject of very full and mature consideration in Slaughter-House Cases, 16 Wall. 36. In those cases, an act of the Louisiana legislature, which had granted to a corporation created for the purpose the exclusive right to erect and maintain a building for the slaughter of live animals within the city, was assailed as being in conflict with this section. The right of the State to use a private corporation and confer upon it the necessary powers to carry into effect sanitary regulations

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was affirmed, and the decision is applicable to a similar objection in the case now before us. The argument of counsel and the opinion of the court in those cases were mainly directed to that part of the section which related to the privileges and immunities of citizens; and, as the court said in the opinion, the argument was not much pressed, that the statute deprived the butchers of their property without due process of law. The court held that the provision was inapplicable to the case.

The prohibition against depriving the citizen or subject of his life, liberty, or property without due process of law, is not new in the constitutional history of the English race. It is not new in the constitutional history of this country, and it was not new in the Constitution of the United States when it became a part of the fourteenth amendment, in the year 1866.

The equivalent of the phrase 'due process of law,' according to Lord Coke, is found in the words...

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