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FRENCH v. BARBER ASPHALT PAVING COMPANY.

decided: April 29, 1901.

FRENCH
v.
BARBER ASPHALT PAVING COMPANY.



ERROR TO THE SUPREME COURT OF THE STATE OF MISSOURI.

Author: Shiras

[ 181 U.S. Page 327]

 MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of the court.

In its opinion in this case the Supreme Court of Missouri said that "the method adopted in the charter and ordinance of Kansas City of charging the cost of paving Forest avenue against the adjoining lots according to their frontage had been repeatedly authorized by the legislature of Missouri, and such laws had received the sanction of this court in many decisions. St. Louis v. Allen, 53 Mo. 44; St. Joseph v. Anthony, 30 Mo. 537; Neenan v. Smith, 50 Mo. 525; Kiley v. Cranor, 51 Mo. 541; Rutherford v. Hamilton, 97 Mo. 543; Moberly v. Hogan, 131 Mo. 19; Farrar v. St. Louis, 80 Mo. 379."

In the last-mentioned case Judge Norton for the court said:

"The liability of lots fronting on a street, the paving of which is authorized to be charged with the cost of the work according to their frontage, having been thus so repeatedly asserted, the question is no longer an open one in this State, and we are relieved from the necessity of examining authorities cited by the counsel for plaintiff in error condemning what is familiarly known as the front-foot rule.

"Learned counsel for defendant concede such was the decided law of this State, and that the portion of the Kansas City charter known as the ninth article of the charter, which authorizes the cost of a pavement to be assessed against the lots now fronting on the improvement according to their respective frontage, was framed after this court had fully considered and construed

[ 181 U.S. Page 328]

     similar laws and sustained them against the charge of unconstitutionality, and the assessment now challenged was made under the construction given by this court."

Accordingly the Supreme Court of Missouri held that the assessment in question was valid, and the tax imposed collectible. And, in so far as the constitution and laws of Missouri are concerned, this court is, of course, bound by that decision.

But that court also held, against the contention of the lot owners, that the provisions of the Fourteenth Amendment to the Constitution of the United States were not applicable in the case; and our jurisdiction enables us to inquire whether the Supreme Court of Missouri were in error in so holding.

The question thus raised has been so often and so carefully discussed, both in the decisions of this court and of the state courts, that we do not deem it necessary to again enter upon a consideration of the nature and extent of the taxing power, nor to attempt to discover and define the limitations upon that power that may be found in constitutional principles. It will be sufficient for our present purpose to collate our previous decisions and to apply the conclusions reached therein to the present case.

It may prevent confusion, and relieve from repetition, if we point out that some of our cases arose under the provisions of the Fifth and others under those of the Fourteenth Amendment to the Constitution of the United States. While the language of those amendments is the same, yet as they were engrafted upon the Constitution at different times and in widely different circumstances of our national life, it may be that questions may arise in which different constructions and applications of their provisions may be proper. Slaughter House Cases, 16 Wall. 36, 77, 80.

Thus it was said, in Davidson v. New Orleans, 96 U.S. 97, 103:

"It is not a little remarkable that while this provision has been in the Constitution of the United States, as a restraint upon the authority of the Federal government, for nearly a century, and while, during all that time, the manner in which the powers of that government have been exercised has been watched

[ 181 U.S. Page 329]

     with jealousy, and subjected to the most rigid criticism in all its branches, this special limitation upon its powers has rarely been invoked in the judicial forum or the more enlarged theatre of public discussion. But while it has been a part of the Constitution, as a restraint upon the power of the States, only a very few years, the docket of this court is crowded with cases in which we are asked to hold that state courts and state legislatures have deprived their own citizens of life, liberty or property without due process of law. There is here abundant evidence that there exists some strange misconception of the scope of this provision as found in the Fourteenth Amendment. In fact, it would seem, from the character of many of the cases before us, and the arguments made in them that the clause under consideration is looked upon as a means of bringing to the test of the decision of this court the abstract opinion of every unsuccessful litigant in a state court of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded."

However, we shall not attempt to define what it is for a State to deprive a person of life, liberty or property without due process of law, in terms which would cover every exercise of power thus forbidden to the State, and exclude those which are not, but shall proceed, in the present case, on the assumption that the legal import of the phrase "due process of law" is the same in both Amendments. Certainly, it cannot be supposed that, by the Fourteenth Amendment, it was intended to impose on the States, when exercising their powers of taxation, any more rigid or stricter curb than that imposed on the Federal government, in a similar exercise of power, by the Fifth Amendment.

Let us, then, inquire, as briefly as possible, what has been decided by this court as to the scope and effect of the phrase "due process of law," as applied to legislative power.

One of the earliest cases, in which was examined the historical and legal meaning of those words, is Murray's Lessee v. Hoboken Land Company, 18 How. 272. The question involved was the validity of a sale of real estate made under a distress warrant, authorized by a statute of the United States, 3 Stat. 592, c. 107, against a defaulting collector of customs. It was contended

[ 181 U.S. Page 330]

     that such a proceeding deprived the owner of property without due process of law, contrary to the Fifth Amendment, that by "process of law" was meant a charge, defence, judgment before and by a legally constituted court. The question was thus stated by Mr. Justice Curtis:

"That the warrant now in question is legal process is not denied. It was issued in conformity with an act of Congress. But is it 'due process of law?' The Constitution contains no description of those processes which it was intended to allow or forbid. It does not even declare what principles are to be applied to ascertain whether it be due process. It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process 'due process of law' by its mere will. To what principles, then, are we to resort to ascertain whether this process, enacted by Congress, is due process? To this the answer must be twofold. We must examine the Constitution itself, to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country."

Pursuing the lines of inquiry thus indicated, the court reached the conclusions that, in ascertaining and enforcing payment of taxes and of balances due from receivers of the revenue in England, the methods have varied widely from the usual course of the common law on other subjects, and that, as respects such debts, the "law of the land" authorized the employment of auditors, and an inquisition without notice, and a species of examination bearing a very close resemblance to the warrant of distress in the act of Congress in question; that this diversity in the law of the land between revenue defaulters and ordinary debtors was understood in this country, and entered into the legislation of the colonies and provinces, and more especially

[ 181 U.S. Page 331]

     of the States, after the Declaration of Independence and before the formation of the Constitution of the United States; that not only was the process of distress in nearly or quite universal use for the collection of taxes, but what was generally termed a warrant of distress, running against the body, goods and chattels of defaulting receivers of public money, was issued to some public officer, to whom was committed the power to ascertain the amount of the default, and by such warrant proceed to collect it; and that, accordingly, the distress warrant in question was not inconsistent with that part of the Constitution which prohibits a citizen from being deprived of his property without due process of law.

In Walker v. Sauvinet, 92 U.S. 90, there was presented the question whether the Fourteenth Amendment availed to secure to a citizen of Louisiana a right of trial by jury as against an act of that State which provided that, in certain circumstances, a case enforcing penalties should be tried by the judge; and it was held that "the States, so far as this amendment is concerned, are left to regulate trials in their own courts in their own way. A trial by jury in suits of common law pending in the state courts is not, therefore, a privilege or immunity of national citizenship which the States are forbidden by the Fourteenth Amendment to abridge. A State cannot deprive a person of his property without due process of law, but this does not necessarily imply that all trials in the state courts affecting the property of persons must be by jury. This requirement of the Constitution is met if the trial is had according to the settled course of judicial proceedings. Murray's Lessee v. Hoboken Land Co., 18 How. 272,280. Due process of law is process according to the law of the land. This process in the States is regulated by the law of the State. Our power over that law is only to determine whether it is in conflict with the supreme law of the land -- that is to say, with the Constitution and laws of the United States made in pursuance thereof -- or with any treaty made under the authority of the United States. Here the state court has decided that the proceeding below was in accordance with the law of the State; and we do not find that to be contrary to the Constitution or any law or treaty of the United States."

[ 181 U.S. Page 332]

     McMillen v. Anderson, 95 U.S. 37, 41, was a case wherein was involved the validity of a law of the State of Louisiana, whereby a tax collector was authorized to seize property and sell it in order to enforce payment of a license tax, and which was alleged to be opposed to the provision of the Fourteenth Amendment of the Constitution which declares that no State shall deprive any person of life, liberty or property without due process of law; but it was said by this court:

"Looking at the Louisiana statute here assailed, we feel bound to say that if it is void on the ground assumed the revenue laws of nearly all the States will be found void for the same reason. The mode of assessing taxes in the States, by the Federal government, and by all governments, is necessarily summary, that it may be speedy and effectual. By summary is not meant arbitrary, or unequal, or illegal. It must, under our Constitution, be lawfully done. But that does not mean, nor does the phrase 'due process of law' mean, by a judicial proceeding. The nation from whom we inherit the phrase 'due process of law' has never relied upon courts of justice for the collection of her taxes, though she passed through a successful revolution in resistance to unlawful taxation. We need not here go into the literature of that constitutional provision, because in any view that can be taken of it the statute under consideration does not violate it. It enacts that, when any person shall refuse or fail to pay his license tax, the collector shall give ten days' written or printed notice to the delinquent requiring its payment, and the manner of giving this notice is fully prescribed. If at the expiration of this time the license be not fully paid, the tax collector may, without judicial formality, proceed to seize and sell, after ten days' advertisement, the property of the delinquent or so much as may be necessary to pay the tax and costs. . . . Here is a notice that the party is assessed, by the proper officer, for a given sum as a tax of a certain kind, and ten days' time given him to pay it. Is not this a legal mode of proceeding? It seems to be supposed that it is essential to the validity of this tax that the party charged should have been present, or had an opportunity to be present, in some tribunal when he was assessed. But this is not, and never has been, considered necessary to the

[ 181 U.S. Page 333]

     validity of a tax. And the fact that most of the States now have boards of revisors of tax assessments does not prove that taxes levied without them are void."

Davidson v. New Orleans, 96 U.S. 97, was a case wherein an assessment of certain real estate in New Orleans for draining the swamps of that city was resisted in the state courts, and was by writ of error brought to this court on the ground that the proceeding deprived the owner of his property without due process of law. The origin and history of this provision of the Constitution, as found in Magna Charta, and i the Fifth and Fourteenth Amendments to the Constitution, were again considered; the cases of Murray's Lessee v. Hoboken Land Co., 18 How. 272, and McMillen v. Anderson, 95 U.S. 37, were cited and approved; and it ws held that "neither the corporate agency by which the work was done, the excessive price which the statute allowed therefore, nor the relative importance of the work to the value of the land assessed, nor the fact that the assessment was made before the work was done, nor that the assessment is unequal as regards the benefits conferred, nor that personal judgments are rendered for the amount assessed, are matters in which the state authorities are controlled by the Federal Constitution."

In Springer v. United States, 102 U.S. 586, was involved the validity of an act of Congress, June 30, 1864, c. 172, 13 Stat. 218, whereby lands of A were distrained and sold by reason of his refusal to pay a tax assessed against him, and it was contended that the sale of defendant's real estate, to satisfy the tax assessed upon him, in a summary manner, without first having obtained a judgment in a court of law, was a proceeding to deprive the defendant of his property without due process of law; that by "due process of law" is meant law in its regular course of administration by the courts of justice, and not the execution of a power vested in ministerial officers. But this court, after citing Murray's Lessee v. Hoboken Land Co., as holding that an act of Congress authorizing a warrant to issue, without oath, against a public debtor, for the seizure of his property, was valid, and that the proceeding was "due process of law," said:

"The prompt payment of taxes is always important to the

[ 181 U.S. Page 334]

     public welfare. It may be vital to the existence of a government. The idea that every taxpayer is entitled to the delays of litigation is unreasonable. If the laws here in question involved any wrong or unnecessary harshness, it was for Congress, or the people who make congresses, to see that the evil was corrected. The remedy does not lie with the judicial branch of the government."

In Missouri v. Lewis, 101 U.S. 22, the Fourteenth Amendment was invoked to invalidate legislation of the State of Missouri, regulating the right of appeal and of writs of error, and whereby suitors in the courts of St. Louis and certain other named counties were denied the right of appeal to the Supreme Court of Missouri in cases where it gave that right to suitors in the courts of the other counties of the State. Speaking for the court, Mr. Justice Bradley said:

"If this position is correct, the Fourteenth Amendment has a must more far-reaching effect than has been supposed. It would render invalid all limitations of jurisdiction based on the amount or character of the demand. A party having a claim for only five dollars could with equal propriety complain that he is deprived of a right enjoyed by other citizens, because he cannot prosecute it in the superior courts; and another might equally complain that he cannot bring a suit for real estate in a justice's court, where the expense is small and the proceedings are expeditious. There is no difference in principle between such discriminations as these in the jurisdiction of courts and that which the plaintiff in error complains of in the present case.

"If, however, we take into view the general objects and purposes of the Fourteenth Amendment, we shall find no reasonable ground for giving it any such application. These are to extend United States citizenship to all natives and naturalized persons, and to prohibit the States from abridging their privileges and immunities, and from depriving any person of life, liberty or property without due process of law, and from denying to any person within their jurisdiction the equal protection of the laws. It contemplates persons and classes of persons. It has not respect to local and municipal regulations that do

[ 181 U.S. Page 335]

     not injuriously affect or discriminate between persons and classes of persons within the places or municipalities for which such regulations are made. The amendment could never have been intended to prevent a State from arranging and parcelling out the jurisdiction of its several courts at its discretion. . . . Each State has the right to make political subdivisions of its territory for municipal purposes, and to regulate their local government. . . . If every person residing or being in either portion of the State should be accorded the equal protection of the laws prevailing there, he could not justly complain of a violation of the clause referred to. For, as before said, it has respect to persons and classes of persons. It means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in the same place and in like circumstances. The Fourteenth Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two States separated only by an imaginary line."

In Mattingly v. District of Columbia, 97 U.S. 687, 692, there was called in question the validity of the act of Congress of June 19, 1878, 20 Stat. 166. c. 309, entitled "An act to provide for the revision and correction of assessments for special improvements in the District of Columbia and for other purposes," and it was said by this court, through Mr. Justice Strong: "It may be that the burden laid upon the property of the complainants is onerous. Special assessments for special road or street improvements very often are oppressive. But that the legislative power may authorize them, and may direct them to be made in proportion to the frontage, area or market value of the adjoining property, at its discretion, is, under the decisions, no longer an open question."

In Kelly v. Pittsburgh, 104 U.S. 78, it was urged that land which the owner had not laid off into town lots, but occupied for agricultural purposes, and through which no streets are run or sued, cannot be, even by the legislature, subjected to the taxes of a city -- the water tax, the gas tax, the street tax and others of similar character. The reason for this was said to be

[ 181 U.S. Page 336]

     that such taxes are for the benefit of those in a city who own property within the limits of such improvements, and who use or might use them if they choose, while he reaps no such benefit. Cases were cited from the higher courts of Kentucky and Iowa where this principle was asserted, and where those courts have held that farm lands in the city are not subject to the ordinary city taxes. But this court said:

"It is no part of our duty to inquire into the grounds on which those courts have so decided. They are questions which arise between the citizens of those States and their own city authorities, and afford no rule for construing the Constitution of the United States. . . . The main argument for the plaintiff in error -- the only one to which we can listen -- is that the proceeding in regard to the taxes assessed on his land deprives him of his property without due process of law.

"It is not asserted that, in the methods by which the value of his land was ascertained for the purpose of this taxation, there was any departure from the usual modes of assessment, nor that the manner of apportioning and collecting the tax was unusual or materially different from that in force in all communities where land is subject to taxation. In these respects there is no charge that the method pursued is not due process of law. Taxes have not, as a general rule, in this country since its independence, nor in England before that time, been collected by regular judicial proceedings. The necessities of government, the nature of the duty to be performed, and the customary usages of the people, have established a different procedure, which, in regard to that matter, is and always has been due process of law. The tax in question was assessed and the proper officers were proceeding to collect it in this way. The distinct ground on which this provision of the Constitution of the United States is invoked is that as the land in question is, and always has been, used as farm land, for agricultural purposes only, subjecting it to taxation for ordinary city purposes deprives the plaintiff in error of his property without due process of law. It is alleged, and probably with truth, that the estimate of the value of the land for taxation is very greatly in excess of its true value. Whether this be true or not we cannot

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     here inquire. We have so often decided that we cannot review and correct the errors and mistakes of the state tribunals on that subject, that it is only necessary to refer to those decisions, without a restatement of the argument on which they rest. State Railroad Tax Cases, 92 U.S. 575; Kennard v. Louisiana, 92 U.S. 480; Davidson v. New Orleans, 96 U.S. 97; Kirtland v. Hotchkiss, 100 U.S. 491; Missouri v. Lewis, 101 U.S. 22; National Bank v. Kimball, 103 U.S. 732."

In Spencer v. Merchant, 125 U.S. 345, a judgment of the Court of Appeals of the State of New York, upholding the validity of an assessment upon lands to cover the expense of a local improvement, was brought to this court for review upon the allegation that the state statute was unconstitutional. In the opinion of this court, delivered by Mr. Justice Gray, the following extract was given from the opinion of the Court of Appeals:

"The act of 1881 determines absolutely and conclusively the amount of the tax to be raised, and the property to be assessed and upon which it is to be apportioned. Each of these things was within the power of the legislature, whose action cannot be reviewed in the courts upon the ground that it acted unjustly or without appropriate and adequate reason. The legislature may commit the ascertainment of the sum to be raised and of the benefited district to commissioners, but it is not bound to do so, and may settle both question for itself; and when it does so, its action is necessarily conclusive and beyond review. Here an improvement has been ordered and made, the expense of which might justly have been imposed upon adjacent property benefited by the change. By the act of 1881 the legislature imposes the unpaid portion of the cost and expense, with the interest thereon, upon that portion of the property benefited which has thus far borne none of the burden. In so doing, it necessarily determines two things, viz., the amount to be realized, and the property especially benefited by the expenditure of the amount. The lands might have been benefited by the improvement, and so the legislative determination that they were, and to what amount or proportion of the cost, even if it may have been mistakenly unjust, is not open

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     to our review. The question of special benefit and the property to which it extends is of necessity a question of fact, and when the legislature determines it in a case within its general power, its decision must of course be final. We can see in the determination reached possible sources of error and perhaps even of injustice, but we are not at liberty to say that the tax on the property covered by the law of 1881 was imposed without reference to special benefits. The legislature practically determined that the lands described in that act were peculiarly benefited by the improvement to a certain specified amount which constituted a just proportion of the whole cost and expense; and while it may be that the process by which the result was reached was not the best attainable, and some other might have been more accurate and just, we cannot for that reason question an enactment within the general legislative power. . . . The precise wrong of which complaint is made appears to be that the land owners now assessed never had an opportunity to be heard as to the original apportionment, and find themselves now practically bound by it as between their lots and those of the owners who paid. But that objection becomes a criticism upon the action of the legislature and the process by which it determined the amount to be raised and the property to be assessed. Unless by special permission, that is a hearing never granted in the process of taxation. The legislature determines expenditures and amounts to be raised for their payment, the whole discussion and all questions of prudence and propriety and justice being confided to its ...


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