A judgment of the highest court of a state sustaining the
validity of an assessment upon lands under a statute of the state
which was alleged to be unconstitutional and void because it
afforded to the owners no opportunity to be heard upon the whole
amount of the assessment, involves a decision against a right
claimed under the provision of the Fourteenth Amendment to the
Constitution of the United States prohibiting the taking of
property without due process of law, and may be reviewed by this
Court on writ of error, although the constitution of the state
contains a similar provision and no constitutional provision is
specifically mentioned in the record of the state court.
If the legislature of a state, in the exercise of its power of
taxation, directs the expense of laying out, grading, or repairing
a street to be assessed upon the owners of lands benefited thereby,
and determines
Page 125 U. S. 346
the whole amount of the tax, and what lands which might be so
benefited are in fact benefited, and provides for notice to and
hearing of each owner at some stage of the proceedings upon the
question what proportion of the tax shall be assessed upon his
land, there is no taking of his property without due process of law
in violation of the Fourteenth Amendment to the Constitution of the
United States.
Pursuant to an act of the Legislature of New York, the expense
of grading a street was assessed by commissioners upon the lands
lying within three hundred feet on either side of the street and
which would, in the judgment of commissioners, be benefited. After
the sums so assessed upon some lots had been paid, the Court of
Appeals of the state adjudged the assessment to be void because the
act made no provision for notice to or hearing of the landowners.
The legislature then passed another act directing a sum equal to so
much of the first assessment as had not been paid, adding a
proportional part of the expenses of making that assessment, and
interest since, to be assessed upon and equitably apportioned among
the lots the former assessment on which had not been paid, first
giving notice to all parties interested to appear and be heard upon
the question of the apportionment of this sum among these lots, but
not as to any apportionment between them and those lots, the former
assessments upon which had been paid.
Held that an
assessment laid under the latter statute was not a taking of
property without due process of law in violation of the Fourteenth
Amendment to the Constitution of the United States.
This case was submitted to the General Term in Kings County of
the Supreme Court of the New York under § 1279 of the Code of Civil
Procedure, without process, upon an agreed statement of facts
signed by the parties, the substance of which, and of the statutes
therein referred to, was as follows:
On June 20; 1883, the parties made a contract in writing by
which the plaintiff agreed to sell to the defendant a parcel of
land in the Town of New Lots in that county and to execute and
deliver a deed thereof, with full covenants of warranty, and free
of all encumbrances, in consideration of the sum of $8,000, part of
which was paid, and the rest was payable on delivery of the deed.
Upon examination, the defendant discovered that there remained
unpaid on the land an assessment of $1,221.73, with interest from
November 3, 1881, and demanded that the plaintiff should pay it,
but he refused. The assessment was made under the following
circumstances:
By the statute of the New York of 1869, c. 217, as
Page 125 U. S. 347
amended by the statute of 1870, c. 619, it was enacted in § 1
that the Supreme Court held in the County of Kings should, upon the
application of one or more freeholders of the Town of New Lots,
appoint three commissioners, who, by § 2, should immediately
proceed to lay out in that town a street or avenue in continuation
of Atlantic Avenue in the City of Brooklyn, and, by § 3, take the
lands lying within the boundaries of the avenue so laid out and,
after public notice in two or more newspapers of the county,
"at least twenty days before meeting for that purpose, of their
intention to proceed to make the award and assessment required by
this act, and of the time when and the place where they will meet
for that purpose at which meeting all persons interested may appear
and be heard in relation to the said award and assessment,"
award damages to the owners of those lands and assess the amount
of the award and the attendant expenses upon the lands lying within
three hundred feet on either side of the avenue which in their
judgment should be benefited by opening and extending it, and
report such award and assessment to the court for confirmation
after public notice that all persons having any objection to it
might be heard before the court, and that upon its confirmation,
the amount of the assessment should be added by the county
supervisors to and made part of, the annual taxes for three years,
one-third each year, with interest on the portions unpaid, and when
collected, be paid over to the owners of the lands taken.
The statute of 1869, as amended by the statute of 1870, further
provided in § 4 that upon the confirmation of the report as to the
opening of the street, the commissioners should be authorized to
enter upon the land taken, to cause it to be regulated, prepared,
and graded for public travel, and to assess the expense of such
regulating, grading, and preparing for travel
"upon the lands and premises which, in their judgment, shall be
benefited by such improvement, in proportion to the benefit
accruing to them by reason thereof, the district of assessment to
extend back as provided heretofore in this act,"
and that the amounts so assessed, together with interest at the
rate of seven percent a year from the making of the assessment,
Page 125 U. S. 348
should be added to and made a part of the annual taxes for the
ensuing year upon the lands assessed, and, when collected, be
applied to the payment of bonds issued under that statute.
The commissioners were appointed, laid out the street, and
regulated, graded, and prepared it for travel, and made the award
and assessments as directed by the statutes aforesaid. The
assessment made under § 4 for the expense of regulating, grading,
and preparing the street for travel amounted to more than $100,000.
The sums so assessed upon some lots were paid, but the sums
assessed upon other lots remained unpaid, the owners of these lots
contesting the validity of the assessment. The principal amount of
the unpaid part of that assessment, being $40,664.96, was returned
for five years as uncollected by the Treasurer of Kings County to
the comptroller of the state and, together with interest thereon at
the yearly rate of five percent and amounting to $8,293.33, was
paid or credited in account by the state to the Treasurer of Kings
County. On June 18, 1878, the Court of Appeals declared that
assessment void.
Stuart v. Palmer, 74 N.Y. 183. On January
29, 1879, the comptroller of the state cancelled the unpaid
assessment and charged the county with the amount thereof, being
$40,664.96, together with the interest thereon to February 1, 1879,
amounting to $8,293.33.
On August 12, 1881, the Legislature of New York, by the statute
of 1881, c. 689, directed the Board of Supervisors of Kings County
to levy on the assessment roll of the Town of New Lots for 1881,
upon the lands, the assessment made upon which, under § 4 of the
act of 1869, had been so cancelled by the Comptroller, and charged
to the County of Kings,
"a sum equitably apportioned among the several parcels
comprising said lands which shall be sufficient to refund to the
New York the sum its due by reason of such cancellation, which sum,
amounting to $40,664.96, was duly credited August 28th, 1876, by
the comptroller of said state to the Treasurer of Kings County, and
the interest charged thereon by said Comptroller, as required by
law, to February 1st, 1879, amounting to $8,293.33, together with
further interest thereon
Page 125 U. S. 349
at six percentum per annum, from February 1st, 1879, to the date
of such levy. Before proceeding to levy such sums, the said board
shall apportion the same among the several parcels of land
hereinbefore mentioned, and said board shall give ten days' notice
of the time and place when they will meet to make such
apportionment, which notice shall be published daily in a newspaper
published in the County of Kings, and all parties interested in
said lands shall be entitled to be heard before said board upon the
question of said apportionment."
The statute of 1881 further provided that the sums so levied
should be collected by the Collector of Taxes of the Town of New
Lots and paid over to the county treasurer, and by him applied "to
pay the amount so due the New York by reason of
such
cancellation.'"
Under and pursuant to this statute, the Supervisors of Kings
County added to the aforesaid sums of $40,664.96, being the unpaid
balance of the previous assessment, and $8,293.83, being the
interest thereon to February 1, 1879; further interest thereon at
the yearly rate of six percent from that date to November 3, 1881,
the day of the final conclusion of their report, and assessed and
levied the aggregate sum of $55,653.52 upon the plaintiff's and
other lots.
The lots so assessed were isolated parcels, not contiguous, and
many of them not fronting on the avenue. Most of the territory
benefited as fixed by the statute of 18$9, and a great portion of
the original assessment, were not included in the statute of 1881
nor directed to be taken into consideration in making the new
assessment. But this assessment included a proportionate part of
the expenses of the former assessment, which had been declared void
by the Court of Appeals.
The case stated by the parties, after setting forth the
foregoing facts, continued and concluded as follows:
"The plaintiff claims that said assessment of 1881 in question
is not a lien or cloud on the title to said premises, and the
defendant refuses to pay the balance of said consideration until
the plaintiff allows it to be deducted from the consideration money
or pays the same, neither of which is the plaintiff willing to do,
and the plaintiff also claims that the statute
Page 125 U. S. 350
of 1881, c. 689, is unconstitutional, and therefore void for the
reason that it is an attempt made by the legislature of this state
to validate a void assessment, and to do the same without giving
the propertyholders an opportunity to be heard as to the total
amount of the assessment, only providing for a hearing on the
apportionment, which was levied upon said premises under and
pursuant to c. 217 of the laws of 1869, as amended by c. 619 of the
laws of 1870, and that the statute of 1881 is clearly void for the
further reasons that the defect in the former assessment was
jurisdictional, and it has been so declared and decided by the
Court of Appeals in the case of
Stuart v. Palmer, 74 N.Y.
183, and is special and invidious and unjustly and illegally
apportioned upon certain individuals without reference to a uniform
standard, and is an arbitrary exaction, and is levied on an
individual or individuals to the exclusion of others in the same
district. The defendant doubts the said claim of the plaintiff. The
question submitted to the Court upon this case is as follows:"
"Is the assessment levied on the property in 1881 in question a
good and valid lien or cloud on said property?"
"If this question is answered in the affirmative, then judgment
is to be rendered in favor of the defendant and against the
plaintiff, requiring the plaintiff to pay said assessment to
deliver a deed according to contract."
"If it be answered in the negative, then judgment is to be
rendered in favor of the plaintiff, requiring the defendant to take
title to said premises in accordance with the contract above
mentioned, without the plaintiff's paying said assessment or tax
and without deducting the same out of the consideration money."
The Supreme Court of New York gave judgment for the defendant,
and the plaintiff appealed to the Court of Appeals, which affirmed
the judgment and remitted the case to the Supreme Court. 100 N.Y.
585. The plaintiff sued out this writ of error and assigned for
error that it appeared by the record that both those courts held
that the statute of 1881, c. 689, and the proceedings under it were
constitutional and valid,
"whereas the said courts should have decided that the
Page 125 U. S. 351
said statute and the proceedings thereunder were in violation of
the Constitution of the United States and were void for the reason
that they deprived the said plaintiff and the other persons
assessed thereunder of their property without due process of
law."
MR. JUSTICE GRAY, after stating the facts as above, delivered
the opinion of the Court.
The leading facts of this case are as follows:
The original assessment of the expenses of regulating, grading,
and preparing the street for travel was laid by commissioners, as
directed by § 4 of the statute of 1869, upon all the lands lying
within three hundred feet on either side of the street and which,
in the judgment of the commissioners, would be benefited by the
improvement. After the sums so assessed upon some lots had been
paid, the Court of Appeals of the state declared that assessment
void because the statute (although it made ample provision for
notice of and hearing upon the previous assessment for laying out
the street under § 3) provided no means by which the landowners
might have any notice or opportunity to be heard in regard to the
assessment for regulating, grading, and preparing the street for
travel under § 4.
Stuart v. Palmer, 74 N.Y. 183. The lots
the sums assessed upon which had not been paid were isolated
parcels, not contiguous, and some of them not fronting upon the
street. By the statute of 1881, a sum equal to so much of the
original assessment as remained unpaid, adding a proportional part
of the expenses of making that assessment, and interest since, was
ordered by the legislature to be levied and equitably apportioned
by the supervisors of the county upon and among these lots, after
public notice to all parties interested to appear and be heard upon
the question of such apportionment, and that sum was levied and
assessed accordingly upon these lots, one of which was owned by the
plaintiff.
Page 125 U. S. 352
The question submitted to the supreme court of the state was
whether this assessment on the plaintiff's lot was valid. He
contended that the statute of 1881 was unconstitutional and void
because it was an attempt by the legislature to validate a void
assessment without giving the owners of the lands assessed an
opportunity to be heard upon the whole amount of the assessment. He
thus directly, and in apt words, presented the question whether he
had been unconstitutionally deprived of his property without due
process of law in violation of the first section of the Fourteenth
Amendment to the Constitution of the United States, as well as of
article 1, sec. 7, of the Constitution of New York, and no specific
mention of either constitutional provision was necessary in order
to entitle him to a decision of the question by any court having
jurisdiction to determine it. The adverse judgment of the supreme
court, affirmed by the Court of Appeals of the state, necessarily
involved a decision against a right claimed under the Fourteenth
Amendment to the Constitution of the United States, which this
Court has jurisdiction to review.
Bridge
Proprietors v. Hoboken Co., 1 Wall. 116,
68 U. S. 142;
Murray v. Charleston, 96 U. S. 432,
96 U. S. 442;
Furman v.
Nichol, 8 Wall. 44,
75 U. S. 56;
Chicago Life Ins. Co. v. Needles, 113 U.
S. 574,
113 U. S.
579.
The jurisdiction of this Court, as is well understood, does not
extend to a review of the judgment of the state court so far as it
depended upon the constitution of the state.
Provident
Institution for Savings v. Jersey City, 113 U.
S. 506,
113 U. S. 514.
Yet as the words of the two constitutions are alike in this
respect, the decisions of the highest court of the state upon the
effect of these words are entitled to great weight. The substance
of the former decisions and the grounds of the judgment sought to
be reviewed can hardly be more compactly or forcibly stated than
they have been by Judge Finch in delivering the opinion of the
Court of Appeals as follows:
"The act of 1881 determines absolutely and conclusively the
amount of 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
Page 125 U. S. 353
or without appropriate and adequate reason.
Litchfield v.
Vernon, 41 N.Y. 123, 131;
People v. Brooklyn, 4 N.Y.
427;
People v. Flagg, 46 N.Y. 405;
Horn v. New
Lots, 83 N.Y. 100; Cooley on Taxation 450. The legislature may
commit the ascertainment of the sum to be raised and of the
benefited district to commissioners, but is not bound to do so, and
may settle both questions 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
specially benefited by the expenditure of that 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 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. That power of taxation is unlimited, except that
it must be exercised for public purposes.
Weismer v.
Douglas, 64 N.Y. 91. Certainly if the acts of 1869 and 1870
had
Page 125 U. S. 354
never been passed, but the improvement of Atlantic Avenue had
been ordered, the legislature might have imposed one part or
proportion of the cost upon one designated district and the balance
upon another. Practically just that was done in this case. In
In re Van Antwerp, 56 N.Y. 261, an assessment for a street
improvement had been declared void by reason of failure to procure
necessary consents of property owners. The legislature made a
reassessment, imposing two-thirds of the expense upon a benefited
district and one-third upon the city at large. The act was held
valid as a new assessment, and not an effort to validate a void
one."
"These views furnish also an answer to the objection that the
only hearing given to the landowner relates to the apportionment of
the fixed amount among the lots assessed, and none is given as to
the aggregate to be collected. No hearing would open the discretion
of the legislature, or be of any avail to review or change it. A
hearing is given by the act as to the apportionment among the
landowners, which furnishes to them an opportunity to raise all
pertinent and available questions and dispute their liability, or
its amount and extent. The precise wrong of which complaint is made
appears to be that the landowners now assessed never had
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 jurisdiction. It may err, but the courts
cannot review its discretion. In this case, it kept within its
power when it fixed first the amount to be raised to discharge the
improvement debt incurred by its direction and second, when it
designated the lots and property which in its judgment, by reason
of special benefits, should bear the burden, and having the power,
we cannot
Page 125 U. S. 355
criticize the reasons or manner of its action. The landowners
were given a hearing, and so there was no constitutional objection
in that respect. Nor was that hearing illusory. It opened to the
landowner an opportunity to assail the constitutional validity of
the act under which alone an apportionment could be made, and that
objection failing, it opened the only other possible questions of
the mode and amounts of the apportionment itself. We think the act
was constitutional."
100 N.Y. 587-589.
The general principles upon which that judgment rests have been
affirmed by the decisions of this Court.
The power to tax belongs exclusively to the legislative branch
of the government.
United States v. New Orleans,
98 U. S. 381,
98 U. S. 392;
Meriwether v. Garrett, 102 U. S. 472. In
the words of Chief Justice Chase, condensing what had been said
long before by Chief Justice Marshall:
"The judicial department cannot prescribe to the legislative
department limitations upon the exercise of its acknowledged
powers. The power to tax may be exercised oppressively upon
persons, but the responsibility of the legislature is not to the
courts, but to the people, by whom its members are elected."
Veazie Bank v.
Fenno, 8 Wall. 533,
75 U. S. 548;
McCulloch v.
Maryland, 4 Wheat. 316,
17 U. S. 428;
Bank v.
Billings, 4 Pet. 514,
29 U. S. 563.
See also Kirtland v. Hotchkiss, 100 U.
S. 491,
100 U. S. 497.
Whether the estimate of the value of land for the purpose of
taxation exceeds its true value this Court, on writ of error to a
state court, cannot inquire.
Kelly v. Pittsburgh,
104 U. S. 78,
104 U. S.
80.
The legislature, in the exercise of its power of taxation, has
the right to direct the whole or a part of the expense of a public
improvement, such as the laying out, grading, or repairing of a
street, to be assessed upon the owners of lands benefited thereby,
and the determination of the territorial district which should be
taxed for a local improvement is within the province of legislative
discretion.
Willard v.
Presbury, 14 Wall. 676;
Davidson v. New
Orleans, 96 U. S. 97;
Mobile County v. Kimball, 102 U.
S. 691,
102 U. S.
703-704;
Hagar v. Reclamation District,
111 U. S. 701. If
the legislature provides
Page 125 U. S. 356
for notice to and hearing of each proprietor at some stage of
the proceedings upon the question what proportion of the tax shall
be assessed upon his land, there is no taking of his property
without due process of law.
McMillen v. Anderson,
95 U. S. 37;
Davidson v. New Orleans and
Hagar v. Reclamation
District, above cited.
In
Davidson v. New Orleans, it was held that if the
work was one which the state had the authority to do, and to pay
for by assessments on the property benefited, objections that the
sum raised was exorbitant, and that part of the property assessed
was not benefited, presented no question under the Fourteenth
Amendment to the Constitution upon which this Court could review
the decision of the state court.
96 U. S. 96 U.S.
100,
96 U. S.
106.
In the absence of any more specific constitutional restriction
than the general prohibition against taking property without due
process of law, the legislature of the state, having the power to
fix the sum necessary to be levied for the expense of a public
improvement, and to order it to be assessed either, like other
taxes, upon property generally, or only upon the lands benefited by
the improvement, is authorized to determine both the amount of the
whole tax, and the class of lands which will receive the benefit,
and should therefore bear the burden, although it may, if it sees
fit, commit the ascertainment of either or both of these facts to
the judgment of commissioners.
When the determination of the lands to be benefited is entrusted
to commissioners, the owners may be entitled to notice and hearing
upon the question whether their lands are benefited, and how much.
But the legislature has the power to determine by the statute
imposing the tax what lands which might be benefited by the
improvement are in fact benefited, and if it does so, its
determination is conclusive upon the owners and the courts, and the
owners have no right to be heard upon the question whether their
lands are benefited or not, but only upon the validity of the
assessment and its apportionment among the different parcels of the
class which the legislature has conclusively determined to be
benefited.
Page 125 U. S. 357
In determining what lands are benefited by the improvement, the
legislature may avail itself of such information as it deems
sufficient, either through investigations by its committees or by
adopting as its own the estimates or conclusions of others, whether
those estimates or conclusions previously had or had not only legal
sanction.
In § 4 of the statute of 1869, the assessment under which was
held void in
Stuart v. Palmer, 74 N.Y. 183, for want of
any provision whatever for notice or hearing, the authority to
determine what lands, lying within three hundred feet on either
side of the street, were actually benefited was delegated to
commissioners. But in the statute of 1881, the legislature itself
determined what lands were benefited and should be assessed. By
this statute, the legislature in substance and effect assumed that
all the lands within the district defined in the statute of 1869
were benefited in a sum equal to the amount of the original
assessment, the expense of levying it, and interest thereon, and
determined that the lots upon which no part of that assessment had
been paid, and which had therefore as yet borne no share of the
burden, were benefited to the extent of a certain portion of this
sum. That these lots as a whole had been benefited to this extent
was conclusively settled by the legislature. The statute of 1881
afforded to the owners notice and hearing upon the question of the
equitable apportionment among them of the sum directed to be levied
upon all of them, and thus enabled them to contest the
constitutionality of the statute, and that was all the notice and
hearing to which they were entitled.
It is objected to the validity of the new assessment that it
included interest upon the unpaid part of the old assessment and a
proportionate part of the expense of levying that assessment. But
as to these items the case does not substantially differ from what
it would have been if a sum equal to the whole of the original
assessment, including the expense of levying it, and adding the
interest, had been ordered by the statute of 1881 to be levied upon
all the lands within the district, allowing to each owner who had
already paid his share
Page 125 U. S. 358
of the original assessment a credit for the sum so paid by him,
with interest from the time of payment.
Judgment affirmed.
MR. JUSTICE MATTHEWS, with whom concurred MR. JUSTICE HARLAN,
dissenting.
I am unable to agree with the judgment of the Court in this
case, and will state very briefly the ground of my dissent.
In
Stuart v. Palmer, 74 N.Y. 183, the Court of Appeals
of the State of New York declared the statute of the State of New
York of 1869, c. 217, as amended by the statute of 1870, c. 619,
and the assessment made in pursuance thereof, to be
unconstitutional and void. In the opinion of the court in that
case, delivered by Earl, J., and which was the unanimous opinion of
the court, the ground of its judgment was stated as follows (p.
188):
"I am of opinion that the Constitution sanctions no law imposing
such an assessment without a notice to, and a hearing, or an
opportunity of hearing, by the owners of the property to be
assessed. It is not enough that the owners may by chance have
notice, or that they may, as a matter of favor, have a hearing. The
law must require notice to them, and give them a right to a hearing
and an opportunity to be heard. It matters not, upon the question
of the constitutionality of such a law, that the assessment has in
fact been fairly apportioned. The constitutional validity of law is
to be tested not by what has been done under it, but by what may by
its authority be done. The legislature may prescribe the kind of
notice, and the mode in which it shall be given, but it cannot
dispense with all notice."
And on page 190 it was further said:
"The legislature can no more arbitrarily impose an assessment
for which property may be taken and sold than it can render a
judgment against a person without a hearing. It is a rule founded
upon the first principles of natural justice, older than written
constitutions, that a citizen shall not be deprived of his life,
liberty, or property without an opportunity to be heard in defense
of his rights, and the constitutional provision that no person
shall be deprived of
Page 125 U. S. 359
these 'without due process of law' has its foundation in this
rule. This provision is the most important guaranty of personal
rights to be found in the federal or state constitutions. It is a
limitation upon an arbitrary power, and is a guaranty against
arbitrary legislation. No citizen shall arbitrarily be deprived of
his life, liberty, or property. This the legislature cannot do, nor
authorize to be done. 'Due process of law' is not confined to
judicial proceedings, but extends to every case which may deprive a
citizen of life, liberty, or property -- whether the proceeding be
judicial, administrative, or executive in its nature.
Weimer v.
Bunbury, 30 Mich. 201. This great guaranty is always and
everywhere present to protect the citizen against arbitrary
interference with these sacred rights."
Accordingly the assessment for the expense of regulating and
grading the avenue under the act of 1869, as amended by the act of
1870, was declared null and void as against parties refusing to
pay.
Subsequently, by the statute of 1881, c. 689, the Legislature of
New York directed the levy to be made upon the lands, the
assessment made upon which under the act of 1869 had been declared
void and cancelled, of the same sum which had been assessed under
the act of 1869, together with interest thereon to February 1,
1879, amounting to $8,293.33, and further interest thereon at six
percent per annum from February 1, 1879, to the date of such levy.
This act required the board of supervisors of Kings County to
apportion this sum among the several parcels of land mentioned,
after giving ten days' notice of the time and place when they would
meet to make such apportionment to the parties interested in said
lands, who should be entitled to be heard before the board upon the
question of the apportionment. It is to be observed, however, that
this apportionment is only to be made as between the lands in
respect to which the prior assessment had been cancelled as being
void. The question of the original apportionment between those
lands and the remaining lands, on which the owners had paid the
first assessment, was not left open under the act of 1881. By this
act, therefore, the owners of the lands
Page 125 U. S. 360
in question were deprived of the opportunity of being heard upon
the question whether the apportionment as between them and the
other landowners, embraced within the original assessment district
for the same improvement, was equitable and fair. They were
therefore deprived by the act of 1881 of the very thing of which
they were deprived by the act of 1869, on account of which the
Court of Appeals of New York held the latter act to be
unconstitutional and void. It is impossible for me, therefore, to
reconcile the opinion of the Court of Appeals of New York now under
review and the opinion of the same court in the case of
Stuart
v. Palmer. The same objection applies to both statutes with
equal force. As I think the Court of Appeals was right in its
judgment upon the first statute, I am of opinion that its judgment
upon the act of 1881, involved in this writ of error, should be
reversed.
The argument against this conclusion which seems to be chiefly
relied on is that in the act of 1881, the legislature made a new
assessment upon a new assessment district created for that purpose
by the statute, and fixed the whole amount to be raised, leaving
the question of apportionment open as between the parties, upon
notice and a hearing, and that all this was within the admitted
competency of the legislative power of the state, the exercise of
which cannot be construed as depriving the parties of their
property without due process of law. But it seems to be a mere
evasion to say that this was an original assessment upon a district
created by law for that purpose, consisting of the lands adjudged
by the legislature to be benefited by the improvement. The
improvement was ordered by the act of 1869, and the assessment
district was created by it, and, so far as the laying out of the
street and the appropriation of private property for that purpose,
and awarding damages to the owners thereof, and assessing the
amount of such awards, and the attendant expenses upon the lands
lying within three hundred feet on either side of the avenue, which
in the judgment of the commissioners should be benefited by opening
and extending the street, that act and what was thus far done under
it were not invalidated, but were held to be in conformity with the
Constitution.
Page 125 U. S. 361
In the act of 1881, the Legislature of New York did not profess
to undo anything which had been done under the act of 1869, and
certainly did not begin
de novo in dealing with the
improvement. On the contrary, they took that portion of the old
assessment for the expense of regulating, grading, and preparing
the street for travel which remained unpaid, and which had been
declared to be void, and revived it by a mere act of legislation as
against the parties who had been judicially declared not to be
bound by it, adding interest upon it from the time when it was
first charged to the state by virtue of the cancellation, as well
as a part of the expenses incurred in making the original
assessment. Such an act of the legislature seems to me to be in
violation of that provision of the Fourteenth Amendment to the
federal Constitution which declares that no state shall deprive any
person of his property without due process of law.
I am authorized by MR. JUSTICE HARLAN to say that he concurs in
these views.
