Johnson v. Rudolph

• Decision Date: 06 December 1926
• Docket Number: No. 4388.,4388.
• Citation: 57 App. DC 29,16 F.2d 525
• Parties: JOHNSON et al. v. RUDOLPH et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

57 App. DC 29, 16 F.2d 525 (1926)

JOHNSON et al. v. RUDOLPH et al.

No. 4388.

Court of Appeals of District of Columbia.

Submitted April 8, 1926.

Decided December 6, 1926.

C. H. Merillat and P. H. Marshall, both of Washington, D. C., for appellants.

F. H. Stephens and R. L. Williams, both of Washington, D. C., for appellees.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

VAN ORSDEL, Associate Justice.

This appeal is from a decree of the Supreme Court of the District of Columbia, dismissing plaintiff's bill in an action to quash an assessment of special taxes against certain land situated along Rhode Island avenue extended. The tax levied was for one-half the cost of taking up an existing macadam pavement on Rhode Island avenue and replacing it with an asphalt pavement. The assessments were made under the provisions of the Act of Congress of July 21, 1914, 38 Stat. 517, 524, as follows:

"Hereafter whenever under appropriations made by Congress, the roadway of any street, avenue, or road in the District of Columbia is improved by laying a new pavement thereon or completely resurfacing the same not less than one square in extent, from curb to curb, or from gutter to gutter where no curb exists, where the material used is sheet asphalt, asphalt block, asphaltic or bituminous macadam, concrete, or other fixed roadway pavement, such proportion of the total cost of the work, including all expenses of the assessment, to be made as hereinafter prescribed, shall be charged against and become a lien upon the abutting property, and assessments therefor shall be levied pro rata according to the linear frontage of said property on the street, avenue, or road, or portion thereof upon the roadway of which said new pavement or resurfacing is laid: Provided, that there shall be excepted from such assessment the cost of paving the roadway space included within the intersection of streets, avenues, and roads, as said intersections are included within the building lines projected, and also the cost of paving the space within such roadways for which street railway companies are responsible under their charters or under law on streets, avenues, or roads where such railways have been or shall be constructed."

And also the provisions of the Act of September 1, 1916, 39 Stat. 676, 716, known as the Borland Amendment, as follows:

"That hereafter the half cost of the paving or repaving of a roadway between the side thereof and the center thereof with sheet asphalt block, granite block, vitrified block, cement concrete bituminous concrete, macadam, or other form of pavement shall be assessed against the property abutting the side of the street so improved, such assessments to be levied and collected as now provided as to alleys and sidewalks: Provided, that the advertisement by publication of the commissioners' intention to do such work and the formal hearing in respect thereto required by law as to alley and sidewalk improvements shall not be required as to roadway improvements."

This method of taxation is properly known as the "front foot rule." The assessment against plaintiff's property amounted to $3.17 per front foot, or a total of $6,112.25. The land in controversy, hereafter for convenience referred to as the "Small tract," is shown inclosed within heavy lines on the following plat:

It appears that, with the exception of block 4022 and the small triangular piece bounded by Rhode Island avenue, Brentwood road, and Fourteenth street, it lies south of Rhode Island avenue and contains 46.65 acres. The streets appearing on the plat on the land south of the avenue have not been opened, but are merely projected under the "District highway plan." This land is now used for farming purposes.

It appears from the record and a large map in evidence that the property fronting on the north side of Rhode Island avenue and extending east and west of the Small tract, is largely improved city property. While there is less improvement on the south side of the avenue, a section of platted and improved city property lies immediately east of the Small tract, and still further east is a large section of improved city property. Rhode Island avenue is a main thoroughfare, extending in a northeasterly direction, from the center of the city to the District line, where it connects with a through highway to Baltimore. There is a double-track street car line extending along the center of the avenue from the heart of the city to the limits of the improved section. We are not, therefore, as in the case of Rudolph et al. v. Knox et al., 52 App. D. C. 33, 280 F. 1007, dealing with farm property fronting on a suburban country road. We have a city street, with street car line, sewerage, water and gas mains, and electric lines, all installed for the accommodation of the improved sections of the city lying adjacent thereto.

The chief contention of the appellants is that, because of the peculiar relation of plaintiff's property to Rhode Island avenue, as shown by the plat, and the relation of other property similarly situated to the avenue, the assessments made on the frontage basis are arbitrary, unequal, and discriminatory. The legality of this method of assessing taxes for local improvements, against property facing on streets which divide uniform city squares, is not questioned when applied to property of substantially uniform depth and of comparatively equal value, and when the assessments are not in excess of the benefits.

We are not unmindful of the reluctance of the federal courts to interfere with the authority of the Legislatures of the states to create or authorize the creation of special taxing districts, and charge the cost, in whole or in part, against abutting property upon the frontage basis, without necessarily violating the Fourteenth Amendment to the federal Constitution. Tonawanda v. Lyon, 181 U. S. 389, 21 S. Ct. 609, 45 L. Ed. 908; Webster v. Fargo, 181 U. S. 394, 21 S. Ct. 623, 45 L. Ed. 912. The validity of such a tax, or special assessment, under the Constitution and laws of a state, is a matter of local law, and the determination of the state courts that, in the imposition of the tax, no provision of the Constitution of the state has been violated, will be accepted generally as controlling and not open to review by the federal courts. It is only when the tax or special assessment is challenged, as violating some provision of the federal Constitution, that the federal courts will exercise jurisdiction to determine its validity. We are here considering a federal statute, applicable to federal territory, and the limitation upon the authority of the courts to interfere with similar legislation in the states is not involved in this case.

Some of the states still adhere to the principle that assessments on the frontage basis may be imposed without notice or hearing, or without regard to whether the benefits equal the assessment. Many of the states, however, following the decision of Norwood v. Baker, 172 U. S. 269, 19 S. Ct. 187, 43 L. Ed. 443, have held in effect that, while a special assessment against abutting property implies that the property assessed is actually benefited, the assessment can only be made when such benefit in fact exists, and when the amount of the assessment does not exceed the benefits. They also hold that the property owner is entitled to a hearing upon the question whether his property is so benefited. Atlanta v. Hamlein, 96 Ga. 381, 23 S. E. 408; White v. Gove, 183 Mass. 333, 67 N. E. 359; Wead v. Omaha, 73 Neb. 321, 102 N. W. 675; State v. Fuller, 39 N. J. Law, 576; Dayton v. Bauman, 66 Ohio St. 379, 64 N. E. 433; Hutcheson v. Storrie, 92 Tex. 685, 51 S. W. 848, 45 L. R. A. 289, 71 Am. St. Rep. 884.

In some of the states there are constitutional provisions which either expressly or by construction are inconsistent with assessments on the frontage basis, or, if such assessments are permitted, they are subject to the requirement that they do not exceed the special benefits to the property assessed. Montgomery v. Moore, 140 Ala. 638, 37 So. 291; Stiewel v. Fencing District, 71 Ark. 17, 70 S. W. 308, 71 S. W. 247; Noonan v. Stillwater, 33 Minn. 198, 22 N. W. 444, 53 Am. Rep. 23; Violett v. Alexandria, 92 Va. 561, 23 S. E. 909, 31 L. R. A. 382, 53 Am. St. Rep. 825. And in still other of the states, either by express statutory provision or by construction adopted by the courts, assessments in proportion to frontage, while recognized and permitted, cannot be assessed without first giving the property owner a right to be heard as to the existence of benefits, and to have the assessment limited to the amount of the benefits conferred. East St. Louis v. Illinois Central Railroad Co., 238 Ill. 296, 87 N. E. 407; Adams v. Shelbyville, 154 Ind. 467, 57 N. E. 114, 49 L. R. A. 797, 77 Am. St. Rep. 484; Hibben v. Smith, 158 Ind. 206, 62 N. E. 447, affirmed, 191 U. S. 310, 24 S. Ct. 88, 48 L. Ed. 195.

The rule thus established in most of the states, whether in response to constitutional limitation or judicial decision, is not different from the holding of the federal courts in subjecting special assessments of taxes on the frontage basis to the limitations of the federal Constitution. In White v. City of Tacoma (C. C.) 109 F. 32, the court, citing the Supreme Court cases, Norwood v. Baker, supra, as qualified by French v. Barber Asphalt Co., 181 U. S. 324, 21 S. Ct. 625, 45 L. Ed. 879, and Wight v. Davidson, 181 U. S. 371, 21 S. Ct. 616, 45 L. Ed. 900, said: "In these several decisions the Supreme Court recognizes the fact that the per front foot plan may be a perfectly fair method of apportioning the burden of paying for street improvements, and that in cases in which it appears that assessments levied according to that plan are not in excess of the benefits to the property assessed, and are equal and fair, so that there is no ground for complaining of actual injustice, the assessments are...