City of Seattle v. Daniel Kelleher

• Decision Date: 28 November 1904
• Docket Number: No. 29,29
• Parties: CITY OF SEATTLE, Appt. , v. DANIEL KELLEHER, Administrator of John W. Thompson, Deceased
• Court: U.S. Supreme Court

195 U.S. 351

25 S.Ct. 44

49 L.Ed. 232

CITY OF SEATTLE, Appt.,

v DANIEL KELLEHER, Administrator of John W. Thompson, Deceased.

No. 29.

Argued October 28, 1904.

Decided November 28, 1904.

Messrs. Mitchell Gilliam and Walter Fulton for appellant.

[Argument of Counsel from pages 351-354 intentionally omitted] Messrs.Frederick Bausman,Daniel Kelleher, and G. Meade Emory for appellee.

Mr. Justice Holmes delivered the opinion of the court:

This is an appeal from a decree of the circuit court, declaring an assessment upon the plaintiff's land void under the 14th Amendment, and enjoining the city against enforcing the same. The facts are these: Weller street, in Seattle, runs east from Elliott bay, and formerly stopped at the east line of Maynard's donation claim. The land now belonging to the appellee, the plaintiff below, is 100 acres to the east of that line, extending to the line of the Jackson street addition. Weller street, if extended eastward, would run through the middle of this land for 2,500 feet. While this land belonged to one Hill, in 1889, he petitioned that Weller street be extended and graded to the Jackson street addition line, and he submitted to the city council, and circulated, although he did not record, plans showing the extension, with his land on the two sides of it divided into lots and blocks. The plan was approved, and in 1890 the city passed an ordinance that Weller street be graded from the beginning to Jackson street addition, and that sidewalks be constructed on both sides of it, coextensive with the grade. Ordinance No. 1285. The street was graded, and, according to the testimony, had to be cut and filled almost continuously. It also was planked for some distance, but the planking stopped about 1,000 feet before reaching Hill's tract. Then an assessment was levied, but this was held void. The next things that happened were a sale of Hill's land and a mortgage of it in January, 1892, to the appellee, which later was foreclosed. The appellee, who lived out of the state, alleges that he was ignorant of the submission of the plan by Hill.

On March 9, 1893, an act was approved authorizing a new assessment, when the old one had been declared void, upon the lands benefited, to the extent of their proportionate part of the expense of the improvement, based upon its actual value at the time of its completion, and having reference to the benefits received. Notice by publication of a time for hearing objections was provided for, with an appeal to the courts. Laws of 1893, chap. 95. When the improvement in question was ordered, by the charter of Seattle the planking was to be paid for out of the general taxes. Laws of 1885-1886, pp. 238, 241, § 7. The special assessment for the other elements, according to the assessed value of the land, could be imposed upon the abutting property to 128 feet back from the street. This was modified by a new charter, adopted later in 1890, and still in force. Under the latter the assessment was to be by the front foot, with different percentages for four parallel subdivisions at successive distances from the street up to 120 feet. It was to be for the costs of the improvement. To carry out the plan, local improvement districts were to be established, including all the property within the termini of the improvement, and not more than 120 feet on each side of the margin. Reassessments were authorized. In pursuance of the charter an ordinance was adopted by the city, providing the manner in which the local assessment should be made. Ordinance No. 2085.

In this state of the ordinances and laws a reassessment of the whole cost of the improvement was ordered in January, 1894, in conformity with the act of 1893, the new charter, and the ordinance No. 2085. Ordinance No. 3199. The proper steps were taken and the assessment was confirmed on March 5, 1894. Ordinance No. 3267. By this assessment the whole cost of the improvement, $35,620.60, was levied on the abutting land, and $14,262.68 was fixed as the plaintiff's share. It is alleged that he thus is charged 44 per cent under the present plan, whereas under the one in force when the improvement was made he would have been charged only 32 per cent. It also is alleged that, being absent from the state, he did not know of the reassessment proceedings until they were concluded.

The bill disputed, among other things, that the prolongation of Weller street through the plaintiff's land ever had been dedicated as a street. But, in view of the assumption by the circuit court that the dedication was made out, and the statement by it that the point had been decided by the supreme court of the state, this objection, if open, very properly was not pressed before us. See Seattle v. Hill, 23 Wash. 92, 62 Pac. 446. Therefore we have not gone into details upon that part of the case. We see no cause to doubt that the circuit court was right. The main ground of argument is that the planking could not be included in the assessment. The reasons, as summed up by the circuit court, are that the law in force at the time of doing the work did not authorize a charge for planking upon the abutting property, that the ordinance No. 1285, ordering the improvement, did not authorize any planking, that the city could assess only the land abutting on the improvement, and the plaintiff's land was far away from the planking, and that such an assessment of the whole cost, including the planking, on the property on Weller street, is absolutely unfair as to the plaintiff's land.

A general attack upon the statute of 1893 is not attempted. It was within the power of the legislature to create, or to authorize the creation of, special taxing districts, and to charge the cost of a local improvement upon the property in such a district by frontage. Websler v. Fargo, 181 U. S. 394, 45 L. ed. 912, 21 Sup. Ct. Rep. 623; French v. Barber Asphalt Paving Co. 181 U. S. 324, 45 L. ed. 879, 21 Sup. Ct. Rep. 625; McNamee v. Tacoma, 24 Wash. 591, 595, 64 Pac. 791; Cooley, Const. Lim. 7th ed. 729. The only question of principle, therefore, raised by the inclusion of the planking in the sum of which the plaintiff was to pay his share, is whether it was manifestly unfair in this particular case. Taken by itself it looks like an unwarrantable attempt to make one man pay for another man's convenience.

On the other hand, so far as the work was similar in character throughout the street, we are of opinion that the improvement might be regarded as one. Webster v. Fargo, 181 U. S. 394, 45 L. ed. 912, 21 Sup. Ct. Rep. 623. See Lincoln v. Street Comrs. 176 Mass. 210, 212, 57 N. E. 356. And if this be admitted we cannot say that the assessing board might not have been warranted in thinking that substantial justice was done. There were many cuts and fills made in grading the road. So far as appears, the heaviest work may have been done on the plaintiff's land, which seems to have been the summit of an ascent. Improvement of one sort may have been the greatest there,...