Webster v. City of Fargo
| Decision Date | 05 May 1900 |
| Citation | 82 N.W. 732,9 N.D. 208 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; Pollock, J.
Action by Mortimer Webster against the City of Fargo and others. Judgment for defendants, and plaintiff appeals.
Affirmed.
Newman Spalding & Stambaugh, for appellants.
C. J Mahnken and J. E. Green, for respondents.
This action was brought to cancel and annul a special assessment for paving purposes in the City of Fargo. The assessment was levied in 1896, pursuant to the statutes then in force, being article 17, chapter 28, Pol. Code 1895. The complaint affirmatively sets forth the due compliance with all the statutory requirements in making the assessment, and seeks to avoid the assessment upon the sole ground that the statute under which it was made contravenes the fourteenth amendment to the federal constitution, in that it deprives the owner of the premises of his property without due process of law, and of the equal protection of the laws, and without an opportunity to be heard as to the justice of the amount demanded. A demurrer to the complaint was sustained.
This assessment was made under section 2280, Rev. Codes 1895 which reads: A similar assessment under this same section and resting in all respects upon the same basis, was before this court in Rolph v. City of Fargo, 7 N.D. 640, 76 N.W. 242. That assessment was resisted upon substantially the same grounds that are urged here. As the question was then new in this jurisdiction, and was of much importance, and as this court conceived the adjudications upon the point to be conflicting and somewhat uncertain, a very elaborate opinion was prepared by Chief Justice Corliss, in which the underlying principles were discussed at length, and the leading cases upon all phases of the question were cited. After the fullest consideration, we upheld the assessment. We are now asked, however, to reverse that holding for the reason that the Federal Supreme Court, in the case of Village of Norwood v. Baker, 172 U.S. 269, 19 S.Ct. 187, 43 L.Ed. 443 (), have established the broad principle that all special assessments upon the basis of frontage are in violation of the fourteenth amendment to the federal constitution, in that they may result in taking of property without due process of law. That appellant's view of that case has support in the case is shown by the fact that the decision has been thus construed in Fay v. City of Springfield (C. C.) 94 F. 409, and Cowley v. City of Spokane (C. C.) 99 F. 840. After a careful study of the opinion in Village of Norwood v. Baker, we are not convinced that the court intended to enunciate the broad proposition for which appellant contends. Rather, we think that case depended entirely upon the particular statutes of the State of Ohio there considered, and that such statutes as construed by that court authorized a special assessment on the front-foot plan without any legislative determination, express or implied, that such property had been specially benefited to the extent of the special assessment or at all. As we read the opinion, the assessment was not held void because it was levied on the front-foot plan, -- a special assessment by valuation would have been equally void and for the same reason, -- because corresponding special benefit had been in no way ascertained or declared. We do not think the court intended to negative the proposition that a legislature has power to fix the taxing district that should be specially benefited by a designated improvement, and place the entire cost of such improvement upon such taxing district. We think that court has repeatedly held the affirmative of that proposition. In Spencer v. Merchant, 125 U.S. 345 at 355, 8 S.Ct. 921 at 926, 31 L.Ed. 763 at 767, that court said: "The legislature, in the exercise of its power of taxation, has the right to direct the whole or a part of the expense of a public improvement, such as the laying out, grading, or repairing of a street, to be assessed upon the owners of lands benefited thereby, and the determination of the territorial districts which should be taxed for a local improvement is within the province of legislative discretion." In Williams v. Eggleston, 170 U.S. 304, 18 S.Ct. 617, 42 L.Ed. 1047, the court said: "Neither can it be doubted that, if the state constitution does not prohibit, the legislature, speaking generally, may create a new taxing district, determine what territory shall belong to such district, and what property shall be considered as benefited by a proposed improvement." In Mobile County v. Kimball, 102 U.S. 691, 26 L.Ed. 238, the court said at page 703, 102 U.S., and page 242, 26 L. Ed.: In Bauman v. Ross, 167 U.S. 548, 17 S.Ct. 966, 42 L.Ed. 270, the court said at page 589, 167 U.S., page 982, 17 S. Ct., and page 288, 42 L. Ed.: "But it is for the legislature and not for the judiciary, to determine whether the expense of a public improvement should be borne by the whole state, or by the district or...
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