Imágenes de páginas

by the ordinance. Properly construed, we company as a taxpayer; and it is claimed think this ordinance shows an agreement that the city had no right to acquire a water upon the part of the company to furnish supply and build its waterworks except by water to the inhabitants of the city at not acquiring the plant of the company. exceeding certain maximum rates, and to In the findings of fact it was expressly the city itself, upon terms to be agreed upon, stipulated : made definite, as far as the city was con- “That the city of Helena contemplates and cerned, for the term of five years. As thus intends to do all acts and things necessary interpreted we do not find anything in this to secure a water supply and system to be contract that prevents the city, certainly owned and controlled by the said city of after the expiration of five years, from con- Helena, and that it contemplates and intends structing its own plant. It has not specifi- to raise funds and revenue therefor in the cally bound itself not so to do, and, as has manner provided by law, and to use the been frequently held in this court, nothing same for said purpose, and to furnish and is to be taken against the public by implica- supply the city of Helena and the inhabittion. Hamilton Gaslight & Coke Co. v. ants thereof with water from its said plant, Hamilton, 146 U. S. 258, 36 L. ed. 963, 13 and that it contemplates and intends to purSup. Ct. Rep. 90; Long Island Water Sup-chase and secure a sufficient quantity of waply Co. v. Brooklyn, 166 U. S. 685, 41 L. ter for said purpose, and that complainant ed. 1165, 17 Sup. Ct. Rep. 718, and cases does not obtain any of its water supply from cited in the opinion. Had it been intended either Beaver, McClellen, or Prickly Pear to exclude the city from exercising the priv- creeks. ilege of establishing its own plant, such “That the ordinances Nos. 467 and 483, purpose could have been expressed by apt mentioned in paragraph 27 of the comwords, as was the case in Walla Walla v. plainant's bill of complaint, were duly Walla Walla Co. 172 U. S. 1, 43 L. ed. 341, passed and adopted and approved, and that 19 Sup. Ct. Rep. 77. It is doubtless true unless said defendant, the city of Ielena, that the erection of such a plant by the city is enjoined and restrained from acquiring will render the property of the water com a water supply, plant, and system, it will pany less valuable, and perhaps, unprofit proceed to acquire the same under said able; but if it was intended to prevent such ordinances or such others as are necessary competition, a right to do so should not for said purpose, as hereinbefore stated, and have been left to argument or implication, will engage in furnishing the said defendbut made certain by the terms of the con- ant, the city of Helena, and its inhabitants, tract. The right to tax within certain lim- with water, suitable and proper for its use, its to procure a supply of water for the and that to do so will depreciate the value municipality, which shall be owned and con- of complainant's franchise and property, as trolled by the city, is authorized by the stated in paragraph 28 of the complaint, but Constitution of Montana, article 13, § 6. that no injury of which complainant can Paragraph 4800 of the Political Code of complain will result therefrom if defendant Montana provides for the carrying into ef- city has the rights claimed by it. fect of this constitutional power to tax for That the revenue for said purpose will be a system of waterworks to be owned and created and raised by borrowing money or controlled by the municipality. The feature raising funds within the limit of indebtedof the law requiring the purchase of exist- ness, as heretofore or hereafter to be extending waterworks instead of building an indeed, in accordance with the requirements of pendent plant by the city was held uncon- the Constitution and provisions of the statstitutional by the supreme court of Mon. utes of the state of Montana in that behalf, tana in Helena Consol. Water Co. v. Steele, unless it shall be adjudged that it has no 20 Mont. 1, 37 L. R. A. 412, 49 Pac. 382. legal or equitable right to do so, on account

The privilege of building other works was, of the facts and admission hereinbefore in the absence of some binding contract for stated and made.” bidding the exercise of the power, clearly We agree with the circuit court of ap. within the city's constitutional and statu- peals that, by this stipulation, the contra tory rights. We cannot find that the city versy was narrowed to the question of the has precluded itself from exercising this right of the city to erect and maintain an right by anything shown in this case. This independent plant of its own, in view of the conclusion renders it unnecessary to decide alleged contract rights of the complainant. whether the city's right to construct a plant For that purpose, if it has the right so to of its own was expressly saved in § 3 of do, it is conceded "it contemplates to raise the ordinance reserving the right to con- funds and revenues therefor in the manner strụct and maintain “sewer work, or other provided by law," and will raise revenues works of a public nature.”

within the limits of indebtedness authorized This action is also brought by the water' by the Constitution and laws of Montana.



This concession renders it unnecessary to Mr. Justice Holmes delivered the opinion notice the allegations of the complaint as of the court: to the right to tax for the purpose of erect- This is an appeal from a decree of the ing such works, or the alleged invalidity of circuit court, declaring an assessment upon any method of acquiring waterworks for the the plaintiff's land void under the 14th city except by purchase from the complain- Amendment, and enjoining the city against ant.

enforcing the same. The facts are these: Judgment affirmed.

Weller street, in Seattle, runs east from
Elliott bay, and formerly stopped at the

east line of Maynard's donation claim. The (195 U. S. 351)

land now belonging to the appellee, the CITY OF SEATTLE, Appt.,

plaintiff below, is 100 acres to the east of .

that line, extending to the line of the JackDANIEL KELLEHER, Administrator of son street addition.

Administrator of son street addition. Weller street, if exJohn W. Thompson, Deceased. tended eastward, would run through the

middle of this land for 2,500 feet. While Constitutional law-due process of law in this land belonged to one Hill, in 1889, he

assessments for public improvementsre- petitioned that Weller street be extended assessmentsbona fide purchaser.

and graded to the Jackson street addition

line, and he submitted to the city council, 1. Assessing by the frontage rule the entire and circulated, although he did not record,

cost of a street extension, including a charge plans showing the extension, with his land for planking, is not so manifestly unfair to on the two sides of it divided into lots and an abutting owner whose property lies some blocks. The plan was approved, and in 1890 distance beyond the point where the planking stopped as to render the assessment void as the city passed an ordinance that Weller a denial of due process of law.

street be graded from the beginning to 2. Including in a reassessment for the cost of Jackson street addition, and that sidewalks

a street extension a charge for certain work be constructed on both sides of it, coextenwhich was not authorized by the ordinance sive with the grade. Ordinance No. 1285. ordering the improvement is not a denial of due process of law to a property owner affect. The street was graded, and, according to the ed thereby, where the municipality has done testimony, had to be cut and filled almost or adopted the work, and presumably has paid continuously. It also was planked for some for it.

distance, but the planking stopped about Due process of law is not denied by a re- 1,000 feet before reaching Hill's tract. Then assessment for the cost of a street extension because it includes a charge for work which, an assessment was levied, but this was held when done, could not be included in a local void. The next things that happened were assessment.

a sale of Hill's land and a mortgage of it A charter provision that the cost of plank- in January, 1892, to the appellee, which ing is to be paid out of the general taxes does later was foreclosed. The appellee, who not prevent a later special assessment there- lived out of the state, alleges that he was for upon the owners of property abutting on a local improvement, in the carrying out of ignorant of the submission of the plan by which such planking was done.

Hill. 5. The doctrine respecting bona fide purchasers

On March 9, 1893, an act was approved for value cannot be invoked to prevent the authorizing a new assessment, when the enforcement of the lien of a reassessment for old one had been declared void, upon the a local improvement by one who purchased lands benefited, to the extent of their prothe property affected after the original attempt to assess had been declared void, and portionate part of the expense of the imbefore the new assessment was authorized. provement, based upon its actual value at

the time of its completion, and having refer(No. 29.]

ence to the benefits received. Notice by pub

lication of a time for hearing objections was Argued October 28, 1904. Decided November provided for, with an appeal to the courts. 28, 1904.

Laws of 1893, chap. 95. When the improve

ment , A United States for the District of Wash of Seattle the planking was to be paid for ington to review a decree enjoining the out of the general taxes. Laws of 1885– enforcement of an assessment for a local 1886, pp. 238, 241, § 7. The special assessimprovement. Reversed and remanded for ment for the other elements, according to further proceedings.

the assessed value of the land, could be imThe facts are stated in the opinion. posed upon the abutting property to 128 feet

Messrs. Mitchell Gilliam and Walter back from the street. This was modified by Fulton for appellant.

a new charter, adopted later in 1890, and Messrs. Frederick Bausman, Daniel still in force. Under the latter the assessKelleher, and G. Meade Emory for appellee. 'ment was to be by the front foot, with differ.


ent percentages for four parallel subdivi- | authorize the creation of, special taxing dissions at successive distances from the street tricts, and to charge the cost of a local im. up to 120 feet. It was to be for the costs of provement upon the property in such a dis: the improvement. To carry out the plan, trict by frontage. Webster v. Fargo, 181 U. local improvement districts were to be estab- S. 394, 45 L. ed. 912, 21 Sup. Ct. Rep. 623; lished, including all the property within the French v. Barber Asphalt Paving Co. 181 termini of the improvement, and not more U. S. 324, 45 L. ed. 879, 21 Sup. Ct. Rep. than 120 feet on each side of the margin. 625; McNamee v. Tacoma, 24 Wash. 591, Reassessments were authorized. In pursu- 595, 64 Pac. 791; Cooley, Const. Lim. 7th ance of the charter an ordinance was adopted. 729. The only question of principle, ed by the city, providing the manner in therefore, raised by the inclusion of the which the local assessment should be made. planking in the sum of which the plaintiff Ordinance No. 2085.

was to pay his share, is whether it was In this state of the ordinances and laws manifestly unfair in this particular case. a reassessment of the whole cost of the im- Taken by itself it looks like an unwarrantprovement was ordered in January, 1894, in able attempt to make one man pay for anconformity with the act of 1893, the new other man's convenience. charter, and the ordinance No. 2085. Ordi- On the other hand, so far as the work nance No. 3199. The proper steps were taken was similar in character throughout the and the assessment was confirmed on March street, we are of opinion that the improve5, 1894. Ordinance No. 3267. By this as- ment might be regarded as one. Webster v. sessment the whole cost of the improvement, Fargo, 181 U. S. 394, 45 L. ed. 912, 21 Sup. $35,620.60, was levied on the abutting land, Ct. Rep. 623. See Lincoln v. Street Comrs. and $14,262.68 was fixed as the plaintiff's 176 Mass. 210, 212, 57 N. E. 356. And if share. It is alleged that he thus is charged this be admitted we cannot say that the 44 per cent under the present plan, whereas assessing board might not have been warunder the one in force when the improve- ranted in thinking that substantial justice ment was made he would have been charged was done. There were many cuts and fills only 32 per cent. It also is alleged that, be made in grading the road. So far as aping absent from the state, he did not know pears, the heaviest work may have been done of the reassessment proceedings until they on the plaintiff's land, which seems to have were concluded.

been the summit of an ascent. Improvement The bill disputed, among other things, of one sort may have been the greatest there, that the prolongation of Weller street while that of a different kind, needed where through the plaintiff's land ever had been the travel was, was at the other end of the dedicated as a street. But, in view of the street. It is true that the circuit judge conassumption by the circuit court that the sidered that there was manifest injustice dedication was made out, and the statement in assessing the plaintiff's land, which was by it that the point had been decided by the empty and unimproved, by the front foot at supreme court of the state, this objection, the same rate as the improved land lower if open, very properly was not pressed be down and nearer to the bay, and that his fore us.

See Seattle v Hill, 23 Wash. 92, opinion naturally carries weight, from his 62 Pac. 446. Therefore we have not gone probable acquaintance with the condition of into details upon that part of the case. We the place. But we do not find a sufficient see no cause to doubt that the circuit court warrant for it on the record. We must conwas right. The main ground of argument is sider how things looked at the time. The that the planking could not be included in owner of the land desired the improvements, the assessment. The reasons, as summed up if carried out as he wished. The extension by the circuit court, are that the law in force of the street helped to bring his land into at the time of doing the work did not au- the market. It was more likely to benefit thorize a charge for planking upon the him than those who were lower down. We abutting property, that the ordinance No. cannot invalidate the assessment because the 1285, ordering the improvement, did not speculation has failed. Assuming, without authorize any planking, that the city could deciding, that the question is open to the assess only the land abutting on the im- plaintiff in this proceeding, we are of opinprovement, and the plaintiff's land was far ion that the record does not justify interferaway from the planking, and that such an ence by injunction on the ground that the assessment of the whole cost, including the assessment was manifestly unfair. planking, on the property on Weller street, The answer to the other objections may be is absolutely unfair as to the plaintiff's made in few words. If, as is said, plankland.

ing was not authorized under the word A general attack upon the statute of "sidewalks" in ordinance No. 1285, the city 1893 is not attempted. It was within the has done or adopted the work, and presumably power of the legislature to create, or to 'has paid for it. At the end the benefit was


[ocr errors]
[ocr errors]

there, on the ground, at the city's expense. A man cannot get rid of his liability to a
The principles of taxation are not those of tax by buying without notice. See Tallman
contract. A special assessment may be v. Janesville, 17 Wis. 71, 76; Cooley, Taxn.
levied upon an executed consideration, that 3d ed. 527, 528. Indeed, he cannot buy with-
is to say, for a public work already done. out notice, since the liability is one of the
Bellows v. Weeks, 41 Vt. 590, 599, 600; notorious incidents of social life. In this
Mills v. Charleton, 29 Wis. 400, 413, 9 Am. case the road was cut through the plaintiff's
Rep. 578; Hall v. Street Comrs. 177 Mass. land, and, if he had looked, was visible upon
434, 439, 59 N. E. 68. If this were not so it the ground. Whether it had been paid for
might be hard to justify reassessments. See was for him to inquire. The history of what
Norwood v. Baker, 172 U. S. 269, 293, 43 L. had happened would have suggested that it
ed. 443, 452, 19 Sup. Ct. Rep. 187; Williams was not improbable that sooner or later a
V. Albany, 122 U. S. 154, 30 L. ed. 1088, 7 payment must be made.
Sup. Ct. Rep. 1244; Frederick v. Seattle, 13 Decree reversed.
Wash. 428, 43 Pac. 364; Cline v. Seattle, 13 On January 3, 1905, Mr. Justice Holmes
Wash. 444, 43 Pac. 367 ; Bacon v. Seattle, 15 announced that the decree of November 28,
Wash. 701, 47 Pac. 1102; Cooley, Taxn. 3d 1904, was modified by striking out the order
ed. 1280. The same answer is sufficient if it to dismiss the bill, and by remanding the
be true that when the work was done the cause for further proceedings in accordance
cost of planking could not be included in the with the opinion.
special assessment, which again depends on
the meaning of the words "sidewalk” and

Mr. Justice Harlan and Mr. Justice
"pave” in the old charter, $ 8, taken with Brown dissent.
the special provision for planking in § 7.
Laws of 1885-1886, pp. 238, 241. The

(195 U. S. 361) charge of planking on the general taxes was

not a contract with the landowners, and no
more prevented a special assessment being F. G. EVANS, Claimant of the British
authorized for it later than silence of the

Steamship “Blackheath."
laws at the same time as to how it should be
paid for would have. In either case the leg: Admiralty jurisdiction

. — collision with beaislature could do as it thought best. Of

course, it does not matter that this is called
a reassessment.

The admiralty jurisdiction of the Federal courts
A reassessment may be a

extends to a libel in rem against a vessel for new assessment. Whatever the legislature

negligently colliding with and destroying a could authorize if it were ordering an assess- beacon standing some 15 or 20 feet from the ment for the first time it equally could au- channel, in water 12 or 15 feet deep, though thorize, notwithstanding a previous invalid it is built upon piles driven firmly into the

attempt to assess. The previous attempt
left the city free "to take such steps as were

[No. 34.]
within its power to take, either under exist-
ing statutes, or under any authority that Argued October 31 and November 1, 1904.
might thereafter be conferred upon it, to

Decided November 28, 1904.
make a new assessment upon the plaintiff's
property" any

PPEAL the District of the
. Norwood v, ,
43 L. ed. 443, 452, 19 Sup. Ct. Rep. 187, 196; of Alabama to review a decree dismissing,

. McNamee v. Tacoma, 24 Wash. 591, 64 Pac. for want of jurisdiction, a libel in rem 791; Annie Wright Seminary v. Tacoma, 23 against a vessel for negligently running into Wash. 109, 62 Pac. 444.

and destroying a beacon. Reversed. We think it unnecessary to consider other See same case below, 122 Fed. 112. questions on the part of the case that we The facts are stated in the opinion. have dealt with. We have said enough in Assistant Attorney General McReynolds our opinion to show that the enforcement for appellant. of the assessment lien could not be prevented Messrs. Benjamin Carter and R. H. by the original owner. It is urged, how. Clarke for appellee. ever, that a different rule could be applied in favor of one who purchased the land under Mr. Justice Holmes delivered the opinion the circumstances stated above. But the at

But the at- of the court: tempt to liken taxation, whether general or This is an appeal from the district court special, to the enforcement of a vendor's on the question of jurisdiction, which is cer. lien, and thus to introduce the doctrine con- tified. The case is a libel in rem against a cerning bona fide purchasers for value, rests British vessel for the destruction of a bea- . on a fallacy similar to that which we have j con,-Number 7, Mobile ship-channel lights, mentioned above, which would deny the -caused by the alleged negligent running right to tax upon an executed consideration. into the beacon by the vessel. The beacon

way or woode. Baker, 172 U.S. 269, 293, A United States for the Southern District


stood 15 or 20 feet from the channel of MoCo. 21 Wall. 389, 22 L. ed. 619; Panama R. bile river or bay, in water 12 or 15 feet deep, Co. v. Napier Shipping Co. 166 U. S. 280, 41 and was built on piles driven firmly into the L. ed. 1004, 17 Sup. Ct. Rep. 572. Compare bottom. There is no question that it was The Rock Island Bridge, 6 Wall. 213, 18 L. attached to the realty, and that it was a ed. 753. But, as has been suggested, there part of it by the ordinary criteria of the seems to be no reason why the fact that the common law. On this ground the district injured property was afloat should have court declined jurisdiction, and dismissed more weight in determining the jurisdiction the libel. The Blackheath, 122 Fed. 112.

. than the fact that the cause of the injury In The Plymouth, 3 Wall. 20, sub nom. was. The Arkansas, 5 McCrary, 364, 17 Fed. Hough v. Western Transp. Co. 18 L. ed. 125, 383, 387; The F. & P. M. No. 2, 33 Fed. 511, where a libel was brought by the owners of 515; Hughes, Admiralty, 183. And again, a wharf burned by a fire negligently started it seems more arbitrary than rational to on a vessel, the jurisdiction was denied by treat attachment to the soil as a peremptory this court. See also Ex parte Phenix Ins. bar, outweighing the considerations that the Co. 118 U. S. 610, 30 L. ed. 274, 7 Sup. Ct. injured thing was an instrument of navigaRep. 25. In two later cases there are dicta tion, and no part of the shore, but surdenying the jurisdiction equally when a rounded on every side by water, a mere building on shore is damaged by a vessel point projecting from the sea. running into it. Johnson v. Chicago & P. As to history, while, as it is well known, Elevator Co. 119 U. S. 388, 30 L. ed. 447, 7 the admiralty jurisdiction of this country Sup. Ct. Rep. 254; Homer Ramsdell Transp. has not been limited by the local traditions Co. v. La Compagnie Générale Transatlan- of England (The Lottawanna, 21 Wall. 558, tique, 182 U. S. 406, 411, 45 L. ed. 1155, 574, 22 L. ed. 654, 661), the traditions of 1159, 21 Sup. Ct. Rep. 831. And there are England favor it in a case like this. The a number of decisions of district and other admiral's authority was not excluded by atcourts since The Plymouth, which more or tachment even to the main shore. From beless accord with the conclusion of the court fore the time of Rowghton's Articles he below. See note to Campbell v. H. Hack- could hold inquest over nuisances there to feld & Co. 62 C. C. A. 287–290. It would be navigation, and order their abatement. 1 simple, if simplicity were the only thing to Black Book (Twiss) 224, art. 7; Clerke, be considered, to confine the admiralty ju. Praxis; 1 Select Pleas in Adm., 6 Seld. Soc. risdiction, in respect of damage to property, Publ., xlv., lxxx.; Articles of Feb. 18, 1633, to damage done to property afloat. That Exton, Maritime Dicæology, pp. 262, 263; 2 distinction sounds like a logical consequence Hale, De Port., chap. 7, p. 88, in Hargrave, of the rule determining the admiralty cog- Law Tracts; Zouch, in Malynes, Lex Merc., nizance of torts by place.

3d ed. 122; 1 Comyns's Digest, Admiralty, On the other hand, it would be a strong E. 13. See Benedict, Admiralty, 3d ed. § thing to say that Congress has no constitu- 151; De Lovio v. Boit, 2 Gall. 398, 470, 471,

2 tional power to give the admiralty here as note, Fed. Cas. No. 3,776. Coke menbroad a jurisdiction as it has in England or tions that “of latter times by the letFrance. Or, if that is in some degree pre- ters patents granted to

patents granted to the lord ad. cluded, it ought at least to be possible for mirall he hath power to erect beacons, Congress to authorize the admiralty to give seamarks and signs for the sea, etc.” 4 Co.

4 redress for damage by a ship, in a case like Inst. 148, 149. To the French admiral, it this, to instruments and aids of navigation is expressly stated, belonged “contraincte et prepared and owned by the government. But pugnicion, tant en criminel que en civil,” in Congress cannot enlarge the constitutional this matter. 1 Black Book, 445, 446. See grant of power, and therefore if it could per-Crosse v. Diggs, 1 Sid. 158. Spelman says: mit a libel to be maintained, one can be "The place absolutely subject to the jurismaintained now. We are called on by the diction of the admiraltie, is the sea, which appellees to say that the remedy for any seemeth to comprehend publick rivers, fresh case of damage to a fixture is outside the waters, creekes, and surrounded places constitutional grant.

whatsoever within the ebbing and flowing of The precise scope of admiralty jurisdic- the sea at the highest water.” Eng. Works, tion is not a matter of obvious principle or 2d ed. 226. Finally, by the articles of Febof very accurate history. As to principle, ruary 18, 1633, all the judges of England it is clear that if the beacon had been in agreed that the admiralty jurisdiction exfault, and had hurt the ship, a libel could tended to “injuries there which concern navhave been maintained against a private igation upon the sea.” Exton, Maritime

" owner, although not in rem. Philadelphia,

Philadelphia, Dicæology, ad fin., pp. 262, 263. And “if W. & B. R. Co. v. Philadelphia & A. de G. the libel be founded upon one single contin

H. Steam Towboat Co. 23 How. 209, 16 L. ed. ued act, which was principally upon the sea, 433; Atlee v. Northwestern Union Packet'though part was upon land, a prohibition

« AnteriorContinuar »