886
. FEDERAL REPORTER.
opened, and extended and made a uniform width of sixty-six (66) feet, from Scottwood avenue (formerly Raymond street) to the westline of the east 146100 acres of that part of the west half of the nl?rth-west one-fourth of section 35, town 9, l'ange 9 east, south of lots 1 and 2, and north of Monroe street. 2. That for the purpose of laying off, opening, and extending said Woodruff avenue, and making the same a uniform width of 66 feet between the aforesaid points, it is necessary and hereby ordered that the following described parcels of lots or lands be appropriated by the city of Toledo, to-Wit: Being more particularly described as follows, to-wit: Commencing at a point 'Yhere the south line of Woodruff avenue produced inters!lcts the west line of $Cottwood avenue; thence north 66 feet along the westline of Scottwood avenue.to the north line of Woodruff avenue produced; thence along the north line of Woodruff avenue produced to the west line of the east 146-1UO acres of that part of the west half olthe north-west one-fourth of section 35, town 9, range 7 east, south of lots 1 and 2, and north of Monroe street; thence south along said west line above described to the south line of Woodruff avenue prodiIee!l; thtmce east along said south line of WoodrUff avenue product'd to the place of beginning,-which lies within the lines of sa.id Woodruff avenue.extended, and not now dedicated for street purposes, and being in said city of Toledo, Ohio.. "Sec. 3. That the costs and expenses of laying oft','opening, extending,and widening and straightening said street, including all expellsesincidentto'and resulting from the,appropriation of the .Iots and parcpls of land hereinbefore dl?$cr,ibe<i, shall upon the lots bounding and abutting upon said Woodruff avenue, between Scottwood avenue and the west line of the east 1 46"100 acres auove descrjbed, in proportion to the foot front, and the amount so assessed Shall be payable in two annual installments. "8ec.4. The city solicitor is directed to institute the necessary proceedings in the probate court of Lucas county for the condemnation and appropriation of the lots and lands st>ei'ified for the above purposes.'" . . '1'his extension of Woodruff avenue, which the ordinance seeks to accomplish, will only the property of complainants; that is, t4e land of no other party or parties will be appropriated thereunder, and the only lots bounding and abutting on said proposed extension, and supJect' to the foot-front assessment, made to cover the costs aild expenses inci· dent to and resulting from the appropriation and the improvement of the street, are the remaining lands of complainants, left. carving out tpe st,re(lt. Thus, under the practical and. actual operation of said ordi.· n.ance, there will be taken from or off the land of complainant Scott 33 in width adjoining the center line of said proposed extension, leav-. i.qg him a narrow strip of ground with a frontage on said street Or extenof 150 feet in length and 17 feet in width. This 17 feet in width. at one end of the strip, has a frontage on Scottwood aV'enue, (a street crossing said Woodr1.lff avenue extension at right angles.) From the' land qf complainant Calkins there will be appropriated, at the west end o(the proposed extension, a parcel of ground 66 feet in width, leaving he.r on !lither side thereof a frontage of 75 feet; and from the'east end of her property there will be taken 33 feet in width, leaying her a frontage on said extension,of 150 feet. The frontage on said extended avenue of complainant Scott's remaining ground will.be 150 feet, and of complainant Calkins will be 300 feet. This .frontage of complainants,being the only property bounding and abutting on said;,proposed extension, is by the:
·
11. CITY OF TOLEPO.
SCOTT
et al.
·V. CITY OF TOL]j:DO.
(Oirc'lJ,U Oourt,N. IJ.:Ohio,
w:
28, 1888.)
1.
EMINENT DOMAIN-CONSTITUTIONAL LAW....;.DuE PROCESS OF LAW-MUNICII'AL CORPORAnONS.
2.
Appropriation of land by, a city for a public street under an ordinance, though authorized by a state statute. requiring the remaining land of the OW_I' ers to be lIssessed by the front foot for the entire costs and expenses incident to and resulting from the nppropriation, with all the expenses of laying off and opening the street, without reqlliring compensation to be first made to the owners for the land so taken,' is in violation of the requirement' of Const. U. S. 14th amend., that no state shall "deprive any person of life, liberty, or property, without due process of law."
SAME-MuNICIPAL CORPORATIONS-PUBLIC IMPROVEMENTS-AsSESSMENTSNOTICE.
a.
In levying special assessments upon property for the purpose of opening and improving a street, it is an essential elem:ent of .. due process of law" that notice or an opportunity to be heard be giv6nto the owner of the land so as· sessed, especially where the statutes of the state (Rev. St. Ohio. 1'\ 2283) require: that, "so far as practicable, regard must be had. in making special ailsessments, to the probable benefits to the property assessed, " and where the assessment so levied may, under the laws of the state, be collected by distress without no· tice to the owner.
SAME.
The notice required by Rev. St. Ohio, § 2304, of the adoption of the prelim, inary resolution declaring the necessity of opening the street .and appropri· ating the lands, having no referen'ce to any assessment to defra.y the expenses thereof, is not sufficient to make a subsequent assessment, wIthout further' notiqe, valid. -
,
.
. .' .. ' Application by Maurice A. Scott and another for an injunction to re-, strain the city of Toledo from enforcing an ordinance authorizing the appropriation of land of complainants for tlle purpose of a public and the assllssment of the costs and expenses upon. the remaining lands of complainants. ' Brown, Geddes cfc Jack8on, for complainants. Guy W.Kinney, City SoL, andPark8 &- Barber, for defendant. JACKSON, J. The present suit seeks to enjoin and restrain the city of Toledo, its officers, agents, and attorneys, from proceeding or attemptingto enforce a certain ordinance passed on orabbut November 30, 1885, by the common council of said city, entitled "An ordinance to layoff, open, alld extend Woodruff avenue," wbichprovided for theappropriationby said city of certain real estate belonging to complainants, for the purpose of a pu blic street or highway, as an extension of Woodruff ave-' nue, and which assessed upollcomplainants' lots and lands bounding and abutting upon said avenue so to· be laid out and extended, on the basis of a foot.frontage assessment, the entire costs and expenses incident to nnd resulting from said appropriation, together with all expenRes of laying off, opening, extending, widening, straightening, and improving said extended avenue. Said ordinance is as follows: "An ordinance to layoff, open. and extend Woodruff avenue: ,"Section 1. Be it ordained by the commOI1 council of the city of Toledo, thirds of. all members concurring, that. Woodruff a ven ue shall be laid off, v.36F.no.7-25 .
In
CInOF TOLEDO.
387
of the ordimmce l\ssess/'ld,etl the foot·:front with all the costs .and expensee incident to orresulttng;from the,appropriation of complainants' ,lliud for thepurpQse of the tp be opened and extended; and ,is also charged with all the expenses of laying off, opening,and ing ,aIld widening and straightening said street. Under a stipulation of parties it is agreed that-,, .·. "The. alllount wldch said Scott can recover for his property soa'ppropriated, damage to his rl'waining property. wHl be not less than thesum.of $1.5UO. and not more than the slim oJ: $2.00U. The amount which said Calkins clltn recover for till' property so appropriated. and for damage to her remaining property. will be not less than the sum of $4.UOO. and not more than the sutuof $5.000. The total amonnt whichwiII be chargeabll:l to the property bounding and abutting upon that part of Woodru;ff avenue so laid off', opened. and extended wiII not be less than $4,500, or ten dollars (:lIlIO.GO) per foot front. upon each front foot therl'of. There will be chargell,ble to the property [re;maining] of said Scott. at the rate aforesaid, the slim of, not less than tiJteen llUndrt'd dollars. ($1.500.00.) and to the property of said C'alkms ..a SUUl not less than three thousand dollars. ($3.000.00.) The value of the remainder of said ::lcott's propt:'rty. after said improvem 'nt shall have been m;lde.which will be subject to said assessment. will be not more than the sum of sevpn hundred dollars, ($700.0U.) and the value of said Calkins' propprty remaining after said impl'Uvement shall have been made, subject to said assessment. will La noL to exceed the sum of eight thollsand dollars. ($8.000.00.)" Complainants were not given any notice of the passage of said ordinance, and of the toot-front assessment therein made on this bounding and property; nor was any opportunity afforded them, either before or atter its passage, to be heard before the common council in respect to said assessment, which undertook to provide for the costs and .expenses connected with said appropriation in thE! manner above stated. In July, 1885, betore the passage of said ordinance, the common council of Toledo adopted a resolution declaring it necessary to layoff, open, and extcnd Woodruff' avenue by appropriating the necessary lands lying within the proposed street. This resolution was duly publisht'd in a daily newspaper of said city, and notice of its passage was given to complaiuants. Said resolution required all persons claiming damages on account of said proposed improvement to file their claims therefor with the city clerk within four weeks from the first publication of the resolution, or within 20 days after service of written notice of the same. This was the only step in the city's of which the complainants were given notice; but neither the resolution nor the notice given complainants thereof furniEshed any information as to how or in what manner the city couneil proposed or intended to secure the appropriation of the lands required to layoff, open, and extend said avenue, nor of the way in which the costs and expenses incident to or resulting therefrom were to be met, or 'by whom paid. No question is! made as to the power and authprity of the common .council of Toledo, under the constitution and laws of Ohio, to appropri. property for the p\lrpose of laying .out and opening streets, which may be deemed necessary or convenient for the public use, upon making just COmpeI)llation to the owner of the property so taken. To
288
FEDERAL R.EPORTER.
effectuate suoh appropriation, where the parties cannot agree upon the price of the property taken, or sought to be acquired, the city must apply to certain designated courts fora condemnation of the land wanted, and to determine the owner's compensation therefor, and his damage to the remaining property, which are to be ascertained and assessed by a Jury. The details of such proceedings in court are :lot involved in this case, and need not be specially noticed. The city of Toledo, under the ordinance in question, had the undoubted tight Jo apply to the courts of the state for a condemnation of the property sought tobe appropriated for the extension of Woodruff avenue, and to have fixed and ascertained by a report of a jury the compensation and damages that should be paid the owners therefor. But in making such application to the court there is no provision of the law allowing or authorizing the owner of the property sought to be taken to inquire into or contest the validity of such an assessment as that made by the ordinance in question. Such court pro.ceedings would relate only to an ascertainment of the compensation and damag/:ls to be allowed the owner upon the condemnation of his property. In ascertaining the compensation and damages that should be awarded the owner for the property sougbt to be appropriated to such pubHc use, 'the constitution of the state requires such compensation to be "first made in money, or first secured by a deposit of money;" and that it "shall be assessed by a jury, without deductions for benefits to any property of .the owner." Article 1, § 19. And by article 13, § 5, of said constitution, it is further provided that "no right of way shall be appropriated to the use of any corporation until fjIll compensation therefor be first made in money, or first secured by a deposit of money, to the owner, irrespective of any benefit from any impro,,-ement proposed by such corporation; which compensation shall be ascertained by a jury of twelve men, in a court of record, as shall be prescribed by law." Under these provisions of the organic law of the state, it seems clear that no benefits which result to complainants, or to their adjoining and abutting prop'erty from -the laying out, opening, and extension of 'Woodruffavenue could be lawfully estimated in reducing or offsetting the compensation to which they would be entitled for the appropriation of their property to the purpose contemplated by said ordinance. For so much of their property as the city needed for the proposed extension of Woodruff ayenue they were entitled, by the requirements of the constitution, to full compensation in money, "without deduction for benefits to any property" belonging to them resulting from such proposed improvement. The general assembly, in the organization of cities and incorporated towns or villages, as they were empowered to do by general laws, could not confer upon such municipalities or the courts any authority to disregard these provisions of the constitution rela:ting to the manner in which compensation for private property taken or appropriated for public use should be ascertained and paid for. The statutes of the state relating to the right of cities and incorporated villages to appropriate private property for streets or other public purposes, or conferring upon them power and authority to levy taxes or make special assessments for local improve-
sCO'l"i'
V. CITY OF TOLEDO.
389
ments, should, therefore, be read and interpreted in the light of these provisions of the fundamental law. The authority under which the as· sessment made in and by the ordinance in question is sought to be sustained is found, as defendant's counsel insist, in sections 2263, 2264, 2267, and 2271 of the state statutes, which provide as follows: "Sec. 2263. When the corporation appropriates or otherwise acquires lots or lands for tbe purpose of laying off. opening. extending, straightening; or widening a street; alley. or other public highway, or is possessed of property which it desires so (0 improve, the council may assess the cost and eXpenses of such appropriation or acquisition. and of the improvement, or of either, or of any part of either, upon the general tax-list, in which case the same shall be an assessment on all the taxable real and personal property in the corporation. ' "Sec. 2264. (as amended April 20,1881.) In the cases provided for in the the last section, the council may decline to assess the costs and expenses therein mentioned. or any part thereof, except as hereinafter mentioned. on the gen-, eral tax-list, in which event such costs and expenses, or any part thereof which may not be so assessed on the general tax-list, shall be assessed by the council on the abutting and snch adjacent and contiguous or other benefited 16ts and lands in the corporation, either in proportion to the benefits *hich may result from the improvement, or according to the value of the property assessed. or by the feet front of the property abutting upon the improvement,' as the council, by ordinance setting forth specifically the lots and lands to be: assessed, may determine before the improvement is made. and in the manner and subject to the restrictions herein contained; and the assessments shall be payable in one or more installments, and at such times as council may pre" scribe." 78 Ohio Laws, 259. . "Sec. 2267. No public improvement, the cost or part of the cost of which is to be specially assessed on the owners of adjacent property. and no order appointing assessors of damages or conljnning their report, shall be made. without the concurrence of the council. and it shall be essential that two-thirds of the whole number of the members elected to the council concur, unless two-: thirds of the owners to be charged petition in writing therefor." . " "Sec. 2271, (as amended May 4,1885.) In cities of the first class, and in corporations in counties containing a city of the first grade of the first elass, the tax or assessment specially levied or assessed upon any lot or land for any improvement shall not, except as prOVided in section twenty-two hundred and seventy-two, exceed twenty-five per centum of the value of such lot or" land after the improvement is made, and the cost exceeding that per centulD shall be paid by the corporation out of its general revenue; and. except as provided in section twenty-two hundred and seventy-two, there shan not be col" lected of such assessment in anyone year more than one-tenth of such value of the property on which the assessment is made; and in cities of the third grade, first class, said tax or shall not exceed twenty-five per cen.' tum of the value of such lot orland after the improvement is made; and whenc ever any street or avenue is opened, extended, straIghtened, or widened. the assessment for the cost alld expense thereof shall be assessed only on the lots and lands bounding and abutting on said street or avenue so improved: pro" vided, that nothing in this section contained shall apply to any impmvement ordered, commenced, or completed prior to the passage of this act" 82 Ohio Laws, 260. In connection with these and other sections of the statutes relating to the subject of municipal improvements, counsel for the city of Toledo cite and rely upon the case of Cleveland v. Wick, 18 Ohio St. 303, in which
lJ90
,FEDE,RAL
the of Ohio, construing the constitution and statutes of the state, bald that a municipal corporation had authority to levy an assessment upon lands fronting on a street, to reimburse the corporation for the amount of compensation paid the owner for his other land taken for the street, and for expenses incurred by the city in its improvement as a highway, and)hat such action was not in violation of the constitutional provision requiring full compensation in money to be paid the owner "without deduction for benefits." In that case, it will be noticed, the appropriation of and payment for the property, and the assessment to reimburse the city for its expenses and outlays thereby incurred, were separate, distinct, and disconnected acts. Some time after the property had been 'condemned, and the owner paid therefor "without deduction for benefits," the city of Cleveland made a front-foot assessment on all the property abutting on the street, including that of the party whose erty had heen previously appropriated, to reimburse the city for its expenses in laying out and completing the improven:ient of such street. Its action waS sustained, as not being in violation of the constitutional provision requiring the payment of compensation "without deduction for benefits." But in the present case the ordinance in question does not propose to follow the pursued by the city of Cleveland. It "does not contemplate the payment of a single penny out of the city treasury" for the property of complainants which it is proposed to appropriate for public usej on the contrary, the ordinance and assessment therein made expressly provide that "the costs and expenses incident to and resulting from the appropriation, together with all the expenses of laying off, opening, aud extending and widening and straightening said street, shall be assessed upon the lots bounding and abutting upon said Woodruff avenue," between the designated points. By section 2249 of the Ohio Statutes the costs occasioned by the inquiry and ascertainment of the owner's compensation for property appropriated are required to be paid by the corporationj but under this ordinance and assessment the owners of the property proposed to be taken are required to pay such costs. By the :{lrOvisions. of the constitution the owners are entitled to be paid full compensation in money for the value of their property appropriated, which includes damage to their remaining property, "without deduction for bepefits to any property;" but under the actual operation of the ordinance and assessment in question, the complainants are required to pay in· full for their own property appropriated to the public use of the city.' The city proposes to acquire the complainants' property "without the payment of a single penny out of its treasury," and without entering into any obligation involving the expenditure of money out of the general or other funds.of the city. By section 2271 (as amended May 4, 1885) it is provided that special assessments levied or assessed upon any lot or land for any improvement shall not (except as provided in section 2272) exceed 25 per centum of the value of such lot or land after the improvementismadej but by the ordinance and assessment under consideration specialassess111ent made on the property of complainants, as shown by t.he agreed statement above quoted, largely exceeds this limitation.
SCOTT V. OlTY OF 1'OtEDO.
391
Again, by section 2283 it is provided that, "so far as practicable under the provisions of this title, regard must be had, in making special assesSments, to the benefits to the property assessed." The ordinance and special assessment in this case entirely disregard that requirement of the law, which appears to have been observed in Oleveland v. Wick, supra. Again, by section 2286 it is provided that "the owner shall not be liable, under any circumstances, beyond his interest in the property assessed at the time of the passage of the ordinance or resolution to improve;" but in the present case the front-foot assessment 011 the remaining property of complainant Scott will amount to $1,500 or $2,000, while the lot on which it is assessed does not exceed in value the sum of 8700. It may well be doubted whether the decision of the supreme court of Ohio in Olel)eland v. Wick, 18 Ohio St. 303, will sustain such a proceeding as the scheme devised by the common council of Toledo for acquiring the property of complainants without expense to said city. This court is inclined to the opinion that the present is, in many essential particulars, distinguishable from the case of Cleveland v. Wick, and that its proper determination is not controlled by that decision, even considering the questions here involved alone under the constitution and laws of Ohio. The decision of the s11preme court of Ohio in Cleveland v. Wick, in its construction of the state constitution and statutes, is,of course, conclusive on this court upon the question there presented; but whether that goeS to the extent of sanctioning a procedure on the part of municipalities like the one in question, designed and intended, in advance, to make the owner of property pay for its appropriatioI) to public use, admitS of serious doubt and question. But the questions raised and involved in the present case do not de-pend alone upon the proper construction of the constitution and statutes of Ohio. It is urged on behalf of complainants that, even admitting the constitution and laws of the state, as construed in Cleveland v. Wick, or otherwise, authorize such an ordinance and assessment as the one here involved, such a proceeding is in violation of that provision of the fourteenth amendment to the cunstitution of the United States which de-clares: "Nor shall any state deprive any person of Hfe, liberty, or property without due process of law." It is claimed that the ordinance and asses&ment in question, if sanctioned by the statutes and constitution of Ohio, is "without due process oflaw." This, of course, presents a federal question, which must be settled and detennined by SUbjecting the Ohio statutes and constitution, and the proceedings of the common council of Toledo here called in question, to the test of the requirements of the constitution of the United States as embodied in the fourteenth amendment. Counsel for complainants, on this branch of the case, submit for consideration, upon the facts, two leading and general questions ofIaw: "(I) Maya municipal corporation appropriate private propertyforthe purposes of a public highway, and compel the owner thereof to repay to the corporation, by ariassessment upon his remaining property, not only the entire amount which it has paid lIim for the property aPPropriated, but also the costs
392
F.&DERAL REPORTER.
and expense Of ascertaining thnt. -amount. and the damages resulting to such remaining property from the taking-of the property appropriated? (2) May Rrivate property be appropriated for pUblic uses, and a charge levied to pay therefor, without affording the person whose property is to be charged a lime, place, or tribu,llal where he may be heard, before the liability for such charge is finally estalJlished. and the amount thereof definitely fixed?" Upon the first proposition it is insisted on behalf of complainants that compensaHon for private property taken for public uses is an essential element of that "due process of law". without which the citizen cannot be lawfully deprived of his property. For the defendant it is claimed that "the fourteenth amendment does not prohibit the taking of private property by a state without compensation;" in other words, that the appropriation. of private property for public use" without compensation to the owner, is not depriving him of his property "without due process of law." law' be Counsel for defendant further say that, "even if 'due held to require compensation, the kind of compensation may still be determined by the state, and, in theabsellce of express constitutional provision to the contrary, the property may be compensated for in special benefits, and it is clearly within thepr'wince of the state to provide for estimating this compensation.in any manner which involves' due process of law,'-that is, noticeand·a hearing." We need not pause to consider this latter proposition. It is not material to the present case. It suggests.R question not here involved, because it clearly appears from the pleadings, exhibits, and agreed statement of facts that no "special benethe appropriation of their propfits" will inure to erty, but, on the contrary, that it willl'esult ill damage to their remaining property. It would be an anomaly to say that property is speciall)r by the same act which damages it. A further reason for not discussing this last suggestion of defendant's counsel as to the right of the state to determine the kind of compensation that shall be awarded the owner for property taken for public use, is found in the fact that the action of the common council of Toledo herein called in question, as counsel for defendant admits, is not an attempt to pay for the property t() be appropriated by the benefits resulting. to other property from the appropriation. If such had been the true character of the proceeding, it would clearly violate the provisions of the state constitution,and, independent of the federal questions involved, would entitle complainants to enjoin its enforcement. The single question is therefore presented, whether, in the taking of private property for public use, "due process of law" requires that compensation shall be made to the owner for the property so appropriated. In other words, maya state, or any subordinate division thereof, since the adoption of the fourteenth amendment toihe constitution of the United States, take the property of its citizen for public purposes without making him compensation therefor? Does "due process of law," without which the citizen cannot, under this fourteenth amendment, be deprived of his property by the state, involve as necessary and essential ingredient the payment or the making of pensation for private property appropriated to public use? This precise
a
SCOTTV. CITY OF TOLEDO.
393
question has not yet been passed upon, either by the supreme court of the United Stlltes or the state courts, so far as we have been able to discover, and it must therefore be considered and determined upon the general principles applicable to the subject. No attempt will be made to define the exact scope of the terms "due process of law." No court has yet succeeded in giving to these words an exact definition applicable to all the varied cases in which they may be involved. The supreme court has said (David8on v. New Orleans, 96 U. S. 104) that, instead of attempting to define what constituted "dlle process of law," it was wiser, in ascertaining the intent and application of suchan important phrase in the federal constitution, to adopt the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, and thus, by actual application, give to the words their proper meaning. In a general sense, "due process of law:' is identical in nieaning with the phrase, "law of the land," as used ill the. constitutions of the several states. Cooley, Const. Lim. 432. As applied to the appropriation of private property for public uses und(lr the power of eminent domain, "due process of law" clearly does not meai-l mere legislative enactments, nor simple compliance with the forms of law, nor even constitutional provisions, if they be inconsistent with previously established legal rights. Thus, in Cooley, Const. Lim. 433, it is said: .. "That construction would render the restriction absolutely nugatory, an'd turn this part of the constitution into mere nonsense.'" . And, again, (at p. 435:) . "The principles. then, upon which the process is based, are to whetber it is dne process or not, and not any considerations of mere form. · * * When the government, through its established agencies, interferes with the title toone's property, or with his independput enjoyment of it, and its action is calied in question as not in accordance with the law of the land, we are to test its validity by those principles of ci vii liberty and constitutional protection which have become established in our system of laws, and notgelleraBy by rules that pertain to forms of procedure merely. * * * . lJu,6 process of law,' in each particular case, means such an exertion of the pOWet8 of as the settled maxims of law permit and sanction, and under such sa.feguards for the protection of intlividualrights as those maxims prescribe for the class of cases to which the one in question belongs." To the same E1ffect is the language of the supreme court in Davirkon v. New Orleans, 96 U. S. 102, where the cou rt, speaking by Mr. Justice MILLER,
after explaining the reasons why the phrase "law of the land," used in 1I1(tgna charta, was not directed against the enactments of parliament, proceeds to say: "But when, In the year of grace 1866, there is placed in the constitution of the United :::)tates a declaration that · no state shall deprive any person of life, liberty, or property without due process of law,' can a state make. anything due process of law which, by its own legislation, it chooses to declare SUCh:? To llffirm this is to hold that the prohibition to the states is of no avail, or has no applicatiollWhere the invasion of private rights is effected under the forms of state legislation. It seems to us that a statute which declares in terms, and withont more, that the full and exclusive title of a described piece of land.
as
394
FEDERAL REPORTER.
which is noW in A., shall be and is hereby vested in B., would, if effectual, deprive A. of his property without due process of law within the meaning of the constitutional provision. " . In this case of Davidson v. New OrleanB, 96 U. S. 107, Mr. Justice BRAI).. said: «If a state, by its laws, should authorize private property to be taken for pu1?Iic use, .wit,hout c(!)mpensation, '" '" '" I think it would be depriving a man property withont due process of law. '" ... '" I think, therefore, we are entitled under the fourteenth amendment, not only to se that there is some process of law, but · due process of law,' provided by the state law, when a citizen is deprived of his property; and that, in judging what is ·dne process of law,' respect must be had to the cause and object of the taking, whether under the taxing powel', the power of eminent domain, or the power of assessment for local improvements, or none of these; and, if found to be suita[,le or admissible in the special case, it will be adjudged to be ·due process of law;' but if found to be arbitrary, oppressive, and unjust, it may be declared to be not · due process of law.' " In the Kentucky Railroad Tax Oases, 115 U. S. 331, 6 Sup. Ct. Rep. 57, this language of Mr. Justice BRADLEY is quoted with approval by the supreme court. It is a fundamental principle of .thecommonlaw, established. and well settled before the adoption of the federal constitution,;that the proper and lawful exercise of the sovereign right of eminent domain involves these two essential elements, viz., that the property must be taken for the public benefit, or for public purposes, and .that the owner must be compensated therefor. The exercise of the power of eminent domain is, in legal effect, nothing more than an enforced sale, for the public benefit, at a fair price, to be ascerlained in some proper mode, and to be paid the owner for the property so appropriated. This long arid firmly established principle hardly requires any discussion or :citation of authority in its support. It is thus clearly and forcibly expressed by one of the earliest and ablest law writers: "So Kreat, moreover, is the regal'd of the law for private property, that it will not authorize the least violation of it: no, not even for the general good of the 'whole community. If a new road. for instance, were to be wade through the grounds of a pl'ivate petson, it might perhaps be extensively btlo'elicial to the public; but the law permits no man or set of men to do this without consent of the owner of the land. '" * * In this and similar cases the legislature alone can, and, indeed, frequently does, interpose, and compel the individual to acquiesce. But how does it interpose and compel? Not by absolutely stripping the subject of his property in' an al'bitrary manner; but by giving him a full indernnifi('ation and equivalent for the injury thereby sustained. The public is now considered as an individual, treating with an individual for an exchange. All that the legislature does is to oblige the owner to alienate his possessions for a reasonable price, and even this is an exertion of power which the legislature indulges with caution, and which nothing but the legislature can perform." Cooley, HI. Lk. 1, p. 137. LEY
In the.sallle work, (book 2, p. 35, note,) on the subject of" Ways," it is said: "A 'public way is established either by the dedication of the owner of the land \Wby an appropriation of the land for the purpose by the sovereign authQrity, uQder what is called the' right of eminent domain.' When this right
SCOTT V. CITY OF TOLEDO. , . ' . ' : , . .
395 '.
which prescribes the forinalities, andcornpensation must be maue to th& owner." . SO, too, in Mills, Em. Dom. § 1, it is said on this subject: "The annals of all nations !'njoying a constitutional government, and.qf many despotic nlltions, show that th!' moral s!'nse of mankind requires such In the absence of provisions in the constitution, the courts have considerE'd that the principle was so universal and fundamel"!tal that laws not recognizing the right of the subject to compensation would be void;"; These well-recognized principles, vital to the security, and essential to the protection, of the citizen against the arbitrary exercise of power on' the part of the government, were in full force at the adoption of the stitutibn of'the United States. They were not, however, fully recognized iIi that instrument as originally adopted. The fifth amendment, pro-' viding that private property should not be taken for public use without' just compensation, was accordingly required for the better security ot private property against the power of government. This amendment to the cont;titution, which reco!!nized and secured to the citizen, as a damental principle, the right to compensation for private property taken for public use, was intended as a limitation upon the federal power. The first 10 amendments to the constitution recognized and secured to' all citizens certain rights, privileges, and immunities essential" to their security. The fifth amendment, operating only as a limitation upontQe powers of the general government, fell short of giving to the citizen the full protection to which he was entitled in respect to his life, liberty, and property, so far as state action was concerned. It imposed no tion or limitation upon the powerand authority of the states in dealing with the life, liberty, and property of the citizen. They were lelttothe restraints of their several cont;titutions and respective laws on these subjects. So far as the sta(('s were concerned, citizens of the United States were, thus left without adequate protection and security in their persons and property. The fourteenth amendment was adopted to remedy and corrp.ct this defect in ihe supreme organic law of the Illnd. It involves no forced or unreasonable cont;tl'Uction to hold that this fourtE'enth amendment, as applied to the appropriation of private property for public uses, was clearly intended to place the sallie limitation upon the power of the states which the fifth amendment hal] placed upon the authority of the federal government. And as Judge Cooley well remarks: "Of these amendments it may be safely atfirmed that the first tpn took from the Uniun no power it ought ever to have exel'cis"d, and that the last three reqlllrt>d of the states the sunenuel' of no puwer which any free government should ever empluy." Whfltever may have been the power of the states on this subject prior, to the adoption of the fourteenth l1:men,]ment to the constitution, it seems clear that, since that amendment went into' effect, such limitations and restrnints have been placed upon their power in dealing with individual rights that the states cannot now lawfully appropriate private property forthelJublic benefit or to public uses without compensation to the
is exercised; It mnst be in pnrsuanceof s,ome'express legislative authority
396
owner; anll that any attempt so to do, whether done in pursuance of constitutional provision or legislative enactment, whether done by the legislature itself or under delegated authority by one of the subordinate agencies of the state, and whether done directly. by taking the property of one person and vesting it in another or the public, or indirectly t,hrough the forms of law, by appropriating the property and requiring the owner thereof to compensate himself, or to refund to another the compensation to which he is entitled, would be wanting in that "due process of law" required by said amendment. The conclusion of the court on this question is that since th,e adoption of the fourteenth amendment compensation for private property taken for public uses constitutes an essential element in "due procesR of law," and that without such comI?epsatiori the appropriation of private property to public uses, nomatter under what form of procedure it is taken, would violate the provif;!ipnsofthe federalconstitution.rhere is no difference in principle tween the case put by Mr. Justice MILLER, as an illustration, in Davidsim :v.New Orleans, 96 U. S. 102, viz., the taking property from A, andvestirigit in B., andthe taking of property from an individual and ,;estirig iUri the public. "Due process of law" is equally wanting in cases; in the latter case, because such a taking, without making the owner, is nothing short of legalized robbery, or confiscation for the bene'fit of the public. If, therefore, the stahites of Ohio, whether in l:larrnony with the state constitution or not, authorize the <\ity of Toledo to appropriate the property of complainants for the purpose ofapublic highway, and to·do this in a way which will not only exempt it, from the duty and obligation of compensating them for the property taken, but impose upon complainants themselves, under the fprrn of an assessment by the foot front, the, burden of compensating therns,elves 9r of returning to the city all they may be entitled to receive as .compensation for their property, such statutes are wanting in that ".!lQeprocess of law" required by the federal constitution; Rnd the proceedings had thereunder by the common council of Toledo so far, at least, as said assessment is concerned. ,The' second proposition of law submitted on belialf of complainants: "May' private .property be appropriated for public uses, and a charge le-vied to pay therefor, without aflording the person whose property is to bechiirged a time, place, Or tribunal where he may be heard before the lrabilIty for such charge is finally established, and the amount thereof definitely fixed?" presents the questions whether complainants were entitled, to notice or an opportunity to be heard before the assessment in was and statutes of Ohio provide for SUC:l notlCe or opportumty. It IS clmmed for complainants that"due process of law." in taxation or an asseSSment like that under consideration, includesnotice .Hlld an opportunity to be peard before the charge is finally and the amount thereof definitely fixed, and that the statutes diOhlo relating to the subject of special assessments, or assessments on the f06t"front hasis. provide for no such notice and afford no such opportunity. . Counsel for defendant controvert these positions, insisting that ; ,
v.
CITY OF TOLEDO.
897
complainants were not entitled to any notice of, or opportunity to be heard in respect to, said assessment; but that, if they were, the statutes do provide for such notice, and do afford. such an opportunity to be heard, as will satisfy the requirement of "due process onaw." It admits of no doubt that the assessment in question was an exercise of the taxing power of the state.- Speaking of such special charges or levies, Judge Cooley, in his work on Taxation, p. 430, says; "That these assessments are an exeteise of the taxing power, has over and oyer again been affirmed, until the controversy may be regarded as closed." Nor, is it any longer an open question that the provision of the federal constitution prohibiting, the states from depriving any person of his property" without due process of law" applies to taxation by the state or its subordinate agencies,' and that, in respect to all such taxation based on values and ment, and involving judicial oc quasi judicial.ascertainment and determination as to the amount to be imposed upon the citizen or made a chal'ge upon his property, "due process of law" demands and requires that, at some stage in the proceeding before the tax charge or assessment: is fixed and made final and collected, he shall have notice, or tunityto be heard in reference thereto. This subject has been so ably; and exhaustively discussed and considered in numerous recent decisions' of the federal and state courts that little or nothing remains to be added;! nor is it deemed necessary to extend thisopjn;"u by quoting at length, froIn those authorities which establiah the general proposition that it is, essential to the validity of state taxation, other than that of a personal, character, such as licenses for privileges, or the exercise of franchises, that the tax· payer shall,at some stage in,the proceeding, have noticeol' an opportunity to be heard; that if such notice is not given, or OppOlitu-, nity afforded to be heard, either in levying or collecting the tax, the pro-, ceeding will be wanting in that process oflaw J ' necessary to g,lve it validityunderthe federal censtitution. The legu'Ilature may prescribe the kind of notice and 'the mode in which.it shall be given, "but it not dispense with all notice." The owner must in some form, in some tribunal, ()r before some official authorized to correct errors or mistakes,; have an .opportunity afforded him to be heard in respect to the proceed., ing under which his property is to be taken or burdened, before the tax; or assessment becomes final.andefi'ectual, in order to constitute such procedure "due process of law.''' . If the tax or assessment can, under the state law, be enforced or collected only by legal proceedings, in which any and all defenses, going either to the validity or amount of such tax or assessment, may he made, that will afford the opportunity to be heard, and in such cases the proceeding cannot be said to deprive the owner of his property "without due process oflaw," however objectionable or just it may be otherwise. In the application of these principles there is no distinction between taxation upon values for general purposes and special assessments based upon benefits. Theauthoritiessupportingthese propositions are the following: Kennard v. Louisiana,. 92 U. S .482; Me-, Millen v. Anderson, 95 U. S. 40-42; Davidson v. New Orleans, 96 U. S., 104,105; Hagar v. Reclamation Dist., 111 U. S. 707-711,4 Sup. Ct.
398
Rep. 663'jKentuiky Railroad Tax Oases, 115 U:S.335, 336,6 Sup. Ct. Rep., 57; WiUiams v. Oounty of Albany, 122 U. S. 164, 165, 7 Sup. Ct. Rep. 1244; Spencerv. Merchant, 125:U.:S.354, 355,358,361,8 Sup. Ct. Rep. 921; Stuart v. Palmer, 74 N. Y. 183; Railroad Tax Oases, 13 Fed. Rep. 751-753, 762-766; County of Santa Clara v. Railroad Co., 18 Fed. Rep. 410-412·,416-4:24; Cooley, Tax'n,266; Welty, Assessm. §§ 2.50-2.53, and cases cited In the cases of Hagar v. Reclnmation Dist., 111 U. S. 701, 4 Sup. Ct. Rep. 663, Rnd Cottnty of Santa Olara v. Railroad (.0., 18 Fed. Rep 409, tHe distinction between a tax or assessment which calls for no inquiry, nor for anything in the nature of judicial examination before levy and collection, and a tnx or assee:sment imposed upon property according to its value or special benefits resulting thereto, to be ascertained by assessors or other officials upon inqUIry or t::vldence, is pointed out and consillered with reference to the necessity for notice or opportunity for hearing. In the former class of cases it is suggested that, as notice would be of no service to the individual, and no hearing could change the result, as in taxes for licenses and the exercise of franchises, such notice or an opportunity to be heard .may be dispensed with; but that in the la,tter class of taxes and asselilsments, based upon values or benefits which involve inquiry, notice or an opportunity for hearing if' essential, to render the proceeding valid. COlJnsel for defendant claim the benefit oflthis distinction in the present. case, and insist that, as notice would have been of no service to complainants, and no hearing could have changed the result, they were therefore not entitled tosuch notice or hearinll;. But this position ignores the fact that the assessment in question faUs within the lattt::r clnss of cases, in which inquiry as to benefits is invol ved ; section 22S3 directing in express terms that, "so far as practicable unuer the provisions of thistitle, must be had, in making speciul assessments, to the probable benefits to the property assessed." This requirement of the statute, that regard should be had "to the proha1.tl benefits to the property assessed" in making these special assessments, n('Cessnrily iuvolved inquiry or consiuerution of benefits, which rested upon liwts or evidence, and called for the exercise of a (Ju.a8i judicial deterlUination, like taxation based upon values to be ascertained by assessors. It aei nlits, therefore, oflittle or no question, that the assessment under cOlll:lideration wus of that charueter which entitled complaillallts to notice, or an opportunity to be heard in respect thereto, ill order to give it validity, or nllike the proceeding conform to due process of law. Do the statutes of Ohio provide for sueh notice, or afrord the owners of the property assessed an opportunity for a hearing? After a curelnl examination of the stntutes relating to spedal foot-Iront assessments, we are unllble to find any such provision in the state law. It is claimed that sections 2277-2281 and 2304 provide for the requisite notice, and afrOI'd the required by "due proncss of law." The notice provided :!Orin section 2304 relates merely to the passage of the preliminary Jution decJaringthe necessity for a certain improvement.' It has no reference to any aSSCSSlllt::nt that may be subsequently made in connection
SCOTT II. crTY OF TOLEDO.
399
with such improvement, or to 'defray the costs and expenses thereof· . The other sections relied on are as follows: "Sec. 2277. Incases wherein it is determined to assess the whole or any · part of the cost of an improvement upon the lots or lands bounding or abutting upon the same, or upon other lots or lands benefited thereby, as provided in section twenty-two hundred and sixty-four, the council may require the b03rdof improvements, or board of public works, (city commissioners,) as the case may be, or may disinterestt'd freeholders of the corporation pr Vicinity, to report to the cQuncil an estimated assessment of such cost on the lots or lands to be charged therewith, in proportion, as nearly as may be, to the benelits which may result from the improvement to the several lots or parcels of land so assessed, a copy of which assessment shall be filed in the <lffice of the clerk of the corporation for public inspection. "Sec. Before adopting the assessment so made, the pub"Ush notice. for three weeks ,consecutively. in some newspaper of general circulation in the corporation, that such assessment -has been made, and that tile same is on file in the office of the clerk for the inspection and examination·()f persons interested thert'in. "Sec., 2279. If any person objects to the assessment, he shall file his objections, in writing, with the clerk, within two weeks after the expiration of tlle notice; and thereupon the council shall appoint three disinterested freeholders of't he corporation to act as an equalizing 1J0ard. "8ec. 2280. On a day appOinted by the council for that purpose. the board, after taking an oath before a proper officer, honestly and impartially to dis·charge their duties. shall hear and determine all objections to the assessment, and equalize the same, as they'ml1Y think proper; which equalized assessment they shall report to the council, whichshal1 have· power to conlirm thtl saIJle, PI: set it aside, and cause a new assessment to be xpade, ann appoint a equalizing board possessing the same qualifications, which shall proceed in tjle , manner abdvlil prOVided. " · "Sec. 2281. When the.assessment is confirmed by the council, it ,shall be complete and final."
: It is by no means clear that section 2277 refers to ments; but, assuming that it does, that section does not require the common council to refer ,the matter to the boar4 of improvements, or other commissioners, to ascertain and report the benefits which IDay result from the improvement to the several lots or parcels of land to be assessed. It merely permits the common council to resort to that method of ascertaining benefits, and, when that method is, resorted ,to, the assessment reported by the of improvements or other committeeof appraisers is not to be finally adopted by the common council until after notice (sections 2278, 2279) by publication is given, and, an opportunity for.inspectionand examination is afforded to parties interested. If the common council, in the present case. had proceeded 'under section 2277, then the notice and opportunity to be heard, as provided under sections 2278, 2279, and 2280 would have been inconformity to "due process of law." But the common council, under sectipn 2264, had the authority, and exercised it, of making the assessmeI)lt for . itself, without resorting to the method of ascertaining benefits, by section 2277, and without being required to .give notice,Qra{\ord complainants any opportunity for a hearing. These sections,
'400.
by defendant, not constituting the sole method of procedure, and not in fact adopted or acted upon by the common council in making the assessment in question, cannot avail the defense. The validity of that assessment must be determined by the provisions of the statutes under which the cityccouncil acted in making it, viz., section 2264, which authorized to any special action by the common council itself, without board of appraisers, and as to which action by the council the statutes provide for no notice to, or opportunity to be heard by, the parties interested in or affected by theasl:essment. An assessment so made is wantc:lan be enforced otherwise ing in "due process of law" if its than by suit or legal proceedings in which all defenses to its validity or amount could be raised. This brihgs us to the remaining question in tM case, viz., in what way, or by what methods, may 'an assessment like the present be enforced under the statutes of Ohio? , Three ways are provided for its collection: First, the amount assessed, with interest, and a penalty of 5 per cent., 'may be recovered by suit against the owners of the property before a j,ustice of the peace or other court of competent jurisdiction, (section 2288,) which, of course, requires notice to the. party sued; secondly, by proceedings, in certain designated courts, to en-torce the lien . when the oWl1er of the land assessed is a non-resident, which rl'quires notice by publication, (section 2288;) or, thtrdly, the common council may certify any unpaid assessment to the auditor of the county in which the . corporation is situated, and the amount so certified is to be placed upon the with 10 per cent. penalty , and to be coHected with and in the'same nlannei' as state and county taxes, (section' 2295,) which are 0011ect04 either by suit, by forfeiture and sale of the land, or by distraint of sufficient goods and chattels belonging to the person charged with such taxes or assessments. In the first two methods of collection to which the common council could or might resort, the notice provided for or required would constitute "due process onaw" under the,authoritiesabove cited;but if,hlstead of resorting to these methods of collection, the corporation'selected, as it might, the third remedy for the enforcemellt of the assessment, then the owners would be deprived of any opportu'nity to be heard in regard to the assessment, either as to its validifyoHtmount, and this would violate the requirements of "due pro, cess of law." In this respect the pr.esent cnse is distinguishable from that ofHa.gar v. Reclamation Dist., 111U. S. 711, 4 Sup. Ot Rep. 663, and other like cases, relied upon by counsel for defendant, in which the ascomplained of was enforceable only by legal pror-eedings in which allY dettmse going either to the validity -;r amount could be pleaded. The common council of Toledo having made the assessment question without notice to, or an opportunity for hearing by, complainants, and having the right to enlorce its collection by distraining and selling their property. without resorting to any suit which would give them an opportunity to int()rpose any defense either to the validity 01 amount,of said assessment, its action in the premises, even if authorized by the statutes of Ohio, is wanting in that" due process of law" required o
SCOTT t;. CITY OF TOLEDO.
401
by the federal constitution before depriving the citizen of his property. In its material facts and the principles involved, the present cannot be distinguished from the well-considered case of Stuart v. Palrner, 74 N. Y. 183, which received the express approval of Mr. Justice FIELD in the Railroad Tax Cases, 13 Fed. Rep. 753, and was recognized by the supreme court as a correct exposition and application of the tional provision relating to the taking of private property under the form of assessment "without due process oflaw," in the case of Spencer v. Merchant, 125 U. S. 351-358, 8 Sup. Ot. Rep. 921. The opinion of Mr. JusticeEARL in Stuart v. Palmer might well be quoted in full, because of its force, clearness, and direct application to the case now under consid. eration, but, without extending this opinion in making such a quotation, that opinion is specially referred to as sustaining the views above expressed and the conclusions herein reached. If anything, the case under consideration presents a clearer violation of the constitutional prohibition against depriving the citizen of his property without due process of law than appeared ;in Stuart v.,PnZmer. His l;lifficult to conceive of anything more arbitrary and wanting in the forms of law, or more in conflict with ,the first' principles of justice, or more in disregard of' that equality of ']:nii'(Jenwhich should be observed in the imposition of taxes and assess'mentB;,ltll/lJlth,e action oOhe ,common council in making the assessinent herein complained of, the direct operation and practical effect of which is to charge complainants with all the city's outlay and expense in the appropriation and improvement of their property for public uae,and with the damage thence resulting to their remaining. property.rhe owners are required to pay the city for so much of t.heir own property .as is devoted to public use, and for such damage as their remaining property may thereby sustain,.by making a front-foot assessment on the ·damaged property left in their hands. This arQitraryaction being taken without notice or an opportunity for hearing, is wanting in due process of law, and renders the assessment void. The Ohio cases cited by defendant's counsel, sustaining.frontage assessments in certain cases based · on benefits, did not consider, if they involved, the federal question as "due process of law" in the tp.aking of such asto what would sessments. . Neither was that question discussed in the ca!<e of Cleveland v. Wick, 18 Ohio St. 303, cited above. These authorities are not, therefore, controlling in the present case. They are conclusive upon this · court in the construction of the state constitution and statutes, but in respect to t"e federal question here presented they are not controlling. Other questions, not of a. federal character, are presented by complainants, going to the validity of the ordinance and assessment under consideration for want of compliance with certain requirements of the state statutes applicable to the case, but in the view which the court has taken federal questions involved it is not deemed necessary to go into these p'Qrely local matters. The conclusion of the court is that the common council of the city ofToleclo may proceed, in the manner prescribed by law, with the enforcement of so much and such part of said ordinance of November 30, 1885, as relates to or seeks to appropriate complainv .36F.no. 7-26
402
ants' property to the pUI'poseofa public street, or:for the extension of Woodruff avenue, upon making ol'providing just cowpensation in money for the property so to beapproprlated, and damage to their remaining property; but that said common council, and the city of Toledo, its agents, officers, and attorneys, should be restrained and enjoined from enforcing or attempting to enforce so much and such portion of said ordinance as relates to the assessment therein, and thereby made on the remaining property of complainants. f\uch an injunction is accordingly awarded and decreed in favor of complainants. The costs of the case will be taxed against the city of Toledo, for which execution as at law may issue.
ALLEN et al.
'11.
FAIRBANKS.
(Circuit Oourt, D. Vermont. October 16, 1888.) ExECUTORS AND ADMINISTRATORS-FOREIGN ADMINISTRATORS-ACTIONS.
Personal representatives. appointed in Missond. cannot sue for assets of their testator's estate. situate in Vermont. such assets being recoverable only by personal representatives deriving authority within that jurisdiction.1
In Equity. Daniel Roberts, for orators. Henry a. 1de, for defendant· . WHEELER, J. This bill is brQugh't to compel contribution among shareholders of a private corporation. Two of the orators, each seeking relief for himself alone, one seeking relief for himself with another jointly, and the defendant, have died. Personal representatives of the individual orators, appointed in Missouri, and the survivor of the joint one with the others, have brought scire facias against the personal representatives of the defendant in Vermont to revive the suit. The df>fendantshave pleaded to so much of the 8cire facias as is brought in behalf of these representatives, and this survivor, denying their right to proceed with the case, and the plea has been argued. The bill proceeds upon the ground that the defendant had in his hands money or property which in equity and good conscience belonged to the orators, respectively. This money or property constituted assets of the estates of these testators in Vermont. Such assets could only be recovered by personal representatives deriving authority from within that jurisdiction. Wilkins v. Ellett, 108 U.S. 256, 2 Sup. Ct. Rep. 6410 This is not contrary to the decision in Purple v. Whithed, 4.9 Vt. 187, relied upon in , behalf of these foreign representatives. In that case there were no assets of the estate of which the plaintiffs were administrators, in Vermont. 'As to the right of personal representatives to maintain an action to recover assets in a foreign jurisdiction, see Gove v. Gove, (N. H.) 15 Atl. Rep. 121, and note. '