Where a statute providing for the opening of streets requires
notice to the parties whose land is to be taken for the street, the
fact that it makes no provision for giving notice to the owners of
land liable to be assessed for the improvement does not deprive
such owners of their property without due process of law, and is
not otherwise obnoxious to the Fourteenth Amendment.
The interest of neighboring property owners who may possibly
thereafter be assessed for the benefit to their property accruing
from opening a street is too remote to require notice of such
improvement, in which they have no direct interest.
No notice is required to be given to individual property owners
of a resolution fixing an assessment district and levying a gross
amount thereon for benefits where the statute provides for a
hearing in relation to the proportion each piece of property shall
bear to the whole cost of the improvement and an opportunity is
given to the owner of the land to be heard upon the question of the
benefit derived by him from the improvement.
The fact that certain parcels of land condemned for the
improvement are defectively described is no defense to a proceeding
to assess benefits upon other property.
Page 184 U. S. 433
This was a bill in equity filed in the Circuit Court for the
County of Wayne by Goodrich and another against the City of Detroit
and its treasurer to enjoin the defendants from enforcing the
collection of certain taxes assessed upon several parcels of
property owned by the plaintiffs for benefits derived from the
opening of Milwaukee Avenue upon the ground, amongst others, that
such assessment was in violation of the Fourteenth Amendment, and
deprived plaintiffs of their property without due process of
law.
These proceedings were taken under the authority of certain
sections of the Compiled Laws of 1897, printed in the margin.
*
Page 184 U. S. 434
The proceedings in the case were substantially as follows: on
November 14, 1893, a resolution was passed by the common council
providing for the opening and extending of Milwaukee Avenue, and on
January 6, 1894, a petition by the city was filed in the recorder's
court, together with a map or plan of the private property proposed
to be taken, certified as correct by the city engineer. The owners
and persons interested in the real estate proposed to be taken were
duly summoned, a jury impaneled, a hearing had, and a verdict
rendered condemning certain lands, and fixing the total amount of
damages at $15,214.75. This verdict was confirmed by the court.
Thereafter, and on August 7, 1894, a resolution was adopted by
the common council, which was rescinded on November 20, and on
January 22, 1895, another was adopted of which the following is a
copy:
"Resolved, that the said Common Council of the City of Detroit
do hereby fix and determine that the following district and portion
of said City of Detroit, to-wit: [Here follows list of
descriptions, many of which are different from those in first
assessment district] is benefited by the opening of Milwaukee
Avenue, from Chene Street to the easterly city limits, where not
already opened. And further resolved, that there be assessed and
levied upon the several pieces and parcels of real estate included
in the above descriptions, the amount of $15,214.75, in proportion,
as near as may be, to the advantage which each
Page 184 U. S. 435
lot or parcel is deemed to acquire by this improvement. And
further resolved, that the Board of Assessors of the City of
Detroit be, and they are hereby, directed to proceed forthwith to
make an assessment roll in conformity with the requirements of the
Charter of the City of Detroit relating to special assessments for
collecting the expense of public improvements when a street is
graded, comprising the property hereinbefore described, upon which
they shall assess and levy the amount of $15,214.75, each lot or
parcel to be assessed a ratable proportion, as near as may be of
said amount, in accordance to the amount of benefit derived by such
improvements."
On March 12, 1895, the assessors reported an assessment roll for
defraying the expenses of opening the avenue, which was affirmed by
the common council April 4, 1895. The property of plaintiffs was
included in the assessment district, which was fixed and determined
by the common council.
Defendants filed an answer, which was a little more than a
demurrer to the bill, and upon hearing upon pleadings and proofs,
the bill was dismissed, an appeal taken to the supreme court, by
which the decree of the circuit court was affirmed. 123 Mich.
559.
MR. JUSTICE BROWN delivered the opinion of the Court.
This case raises the question whether certain proceedings taken
under the Compiled Laws of Michigan for the assessment of benefits
upon neighboring lots derived from the opening of Milwaukee Avenue,
in the City of Detroit, deprived the owners of such lots of their
property without due process of law.
These proceedings began with a resolution of the common council
declaring the necessity of opening the street. Thereupon the city
petitioned the recorder's court for a jury to determine the
necessity of such improvements and of taking
Page 184 U. S. 436
private property (a map or plan of which was annexed to the
petition), and "to ascertain and determine the just compensation to
be made for such private property proposed to be taken," and for
the issue of a summons to all persons mentioned in the petition as
being interested in the property proposed to be taken. The jury
returned a verdict in favor of the necessity of opening the avenue,
of taking private property therefor, and fixed the compensation at
the aggregate sum of $15,214.75.
Thereupon the common council passed another resolution fixing
the district benefited by the opening and declaring that there
should be assessed upon the real estate included in such district
the sum of $15,214.75, "in proportion, as near as may be, to the
advantage which each lot or parcel is deemed to acquire by this
improvement." The resolution further required the board of
assessors to make an assessment roll to that amount, assessing upon
each lot "a ratable proportion, as near as may be, of said amount
in accordance to the amount of benefit derived by such
improvements." Thereupon the matter was referred to the board of
assessors, who reported the amount assessed against each lot. The
bill averred that none of the plaintiffs' land thus assessed
abutted upon those parts of the street opened by these proceedings,
but that they had already dedicated to the city all that portion of
Milwaukee Avenue lying in front of their lands, without cost or
expense to the city.
Plaintiffs made a large number of objections to the validity of
such assessment, none of which require to be noticed except so far
as they are pertinent to the provision of the Fourteenth Amendment,
concerning due process of law.
1. The first of these objections is that, while the statute
provides for a notice to the parties whose land is to be taken for
the street, no provision is made for giving notice to the owners of
the land liable to be assessed for the improvement. Section 3394
provides for the filing of a petition by the city attorney for the
condemnation of land, and that the petition, among other things,
shall contain
"a description of the property to be taken, . . . also the names
of the owners and others interested in the property, so far as can
be ascertained, including those in
Page 184 U. S. 437
possession of the premises."
Section 3395 provides that, "upon receiving such petition, it
shall be the duty of the clerk of said court to issue a summons
against the respondents named in such petition" -- that is, all
interested in the property to be taken "commanding them, . . . [to]
show cause, if any they have, why the prayer of such petition
should not be granted."
It will be observed that this section makes no express provision
for notice to the owners of property not to be taken, but
assumed to be benefited by the improvements. These owners,
however, are not then known, because the proceedings for the
condemnation of the property taken precedes the determination of
the benefits and the fixing of the assessment district. The
sections of the statute taken together provide for two distinct and
separate proceedings: (1) for the assessment of compensation for
property
taken, and (2) for the assessment of benefits to
property
not taken. In the former only the owners of the
land taken are interested.
Their rights are amply
protected by ยงยง 3394 and 3395, requiring notice to be given to show
cause why the petition should not be granted.
The argument of the plaintiffs is that the owners of the
property liable to be assessed for the benefits are just as much
interested in the question as to the necessity of making the
improvement and the amount of compensation as are the owners of
land to be taken for such improvement, and the same reasons for
notice apply in the one case as in the other. A number of cases are
cited which, it is argued, give countenance to this position.
Paul v. Detroit, 32 Mich. 108;
Wells County v.
Fahlor, 132 Ind. 426;
State v. Fond du Lac, 42 Wis.
287;
Stuart v. Palmer, 74 N.Y. 183.
But whatever weight be given to these authorities, the law in
this Court is too well settled to be now disturbed that the
interest of neighboring property owners who may possibly thereafter
be assessed for the benefit to their property accruing from opening
a street is too remote and indeterminate to require notice to them
of the taking of lands for such improvement in which they have no
direct interest. The position of the plaintiffs in this particular
would require a readjustment of
Page 184 U. S. 438
the entire proceedings, and a determination of the property
incidentally benefited, before any proceedings are taken for the
condemnation of land directly taken or damaged by such improvement.
It might be argued upon the same lines that, whenever the city
contemplated a public improvement of any description, personal
notice should be given to the taxpayers, since all such are
interested in such improvements and are liable to have their taxes
increased thereby. It might easily happen that a whole district or
ward of a particular city would be incidentally benefited by a
proposed improvement, as, for instance, a public school, yet to
require personal notice to be given to all the taxpayers of such
ward would be an intolerable burden. Hence it has been held by this
Court that it is only those whose property is proposed to be
taken for a public improvement that due process of law
requires shall have prior notice.
Thus, in
Spencer v. Merchant, 125 U.
S. 345, it was held that if a state legislature direct
the expense of laying out a street to be assessed upon the owners
of land benefited thereby and also determine the whole amount of
the tax and what lands 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 property without due
process of law. Said Mr. Justice Gray, p.
125 U. S.
356:
"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 to be 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."
So, in
Parsons v. District of Columbia, 170 U. S.
45, it was held that an enactment by Congress that taxes
levied for laying water mains in the District of Columbia should be
at a certain rate per front foot against all lots or lands abutting
upon the street in which the main should be laid, was conclusive
alike
Page 184 U. S. 439
of the necessity of the work and of its benefit to all abutting
property. So also it was said in
Williams v. Eggleston,
170 U. S. 304,
170 U. S.
311:
"Nor can it be doubted that, if the state constitution does not
prohibit, the legislature, speaking generally, may create, a new
taxing district, determine what territory shall belong to such
district and what property shall be considered as benefited by a
proposed improvement. And in so doing, it is not compelled to give
notice to the parties resident within the territory or permit a
hearing before itself, one of its committees, or any other
tribunal, as to the question whether the property so included
within the taxing district is in fact benefited."
Cooley on Taxation, 2d ed., p. 149.
This question, however, is decided in the case of
Voigt v.
Detroit, ante, p.
184 U. S. 115,
recently disposed of, and will not be further considered here.
Indeed, so far as this question is concerned, this case might be
affirmed upon the authority of that.
2. The second objection is that the resolution of January 22,
1895, fixing the assessment district and levying a gross amount
thereon for benefits, does not expressly state that the property
included therein is benefited to the amount ordered to be assessed.
This resolution was passed in pursuance of section 3406, reprinted
in the
Voigt case (
ante, p.
184 U. S. 115),
which provides that
"if the common council . . . believe that a portion of the city
. . . will be benefited by such improvement, they may . . .
determine that the whole or any just proportion of the compensation
awarded by the jury shall be assessed upon the owners or occupants
of real estate deemed to be thus benefited, and thereupon they
shall by resolution fix and determine the district or portion of
the city . . . benefited, and specify the amount to be assessed
upon the owners or occupants of the taxable real estate therein.
The amount of the benefit thus ascertained shall be assessed upon
the owners or occupants of such taxable real estate in proportion,
as nearly as may [be], to the advantage which such lot, parcel, or
subdivision is deemed to acquire by the improvement."
The resolution declares that the
"common council do hereby fix and determine that the following
district . . . is benefited by the opening of Milwaukee Avenue, . .
. [and] that
Page 184 U. S. 440
there be assessed and levied upon the several pieces and parcels
of real estate, included in the above description, the amount of
$15,214.75, in proportion, as near as may be, to the advantage
which each lot or parcel is deemed to acquire by this
improvement."
If this resolution be not a literal, we think it is a
substantial, compliance with the statute declaring that, if the
common council believe that the property will be benefited by such
improvement, they may determine the proportion of the compensation
to be assessed upon the owners, but whether this be so or not,
there was no want of due process of law within the Fourteenth
Amendment, inasmuch as section 3406 expressly provides, following
the language already quoted,
"that the assessment shall be made and the amount levied and
collected in the same manner and by the same officers and
proceeding, as near as may be, as is provided in the charter of the
municipality for assessing, levying, and collecting the expense of
a public improvement when a street is graded."
Interpreting this, the Supreme Court of Michigan held in the
case of
Voigt v. Detroit, 123 Mich. 547, that "the statute
provides for a hearing in relation to the proportion each piece of
property shall bear to the whole cost of the improvement," and
further that.
"when the proceeding has reached that stage when it becomes
necessary to decide what proportion of the cost of a proposed
improvement shall be assessed to any given description of land,
there must be an opportunity given to the owner of the land to be
heard upon that question."
There was in that case as well as in the one under consideration
no claim in the bill that plaintiffs' property was not benefited by
the proposed improvement in excess of the amount assessed, nor was
there any claim that he was not allowed to be heard in relation to
the amount which should be assessed against his property. Upon such
hearing, the property owner may insist that his property was not
benefited to the amount assessed, or that it was not benefited at
all, and thus obtain every advantage which he might obtain were he
informed of every step of the proceedings. The terms of the
resolution, that each lot shall be assessed "in accordance with the
amount of benefits derived from such improvements," opens the whole
question of the amount of benefit derived by
Page 184 U. S. 441
the lot, even to showing that no benefit whatever was occasioned
by the improvement. It does not follow, however, that he has a
right to be heard upon the extent of the territory to be embraced
within the assessment district.
3. The last objection -- that there were several of the parcels
of land constituting the extension of Milwaukee Avenue so
defectively described that the judgment of condemnation was
absolutely void -- is untenable. Not only is it not shown that the
plaintiffs were interested in the lands alleged to be misdescribed,
but it is obviously impossible, in a proceeding to assess benefits
upon other property, to show a misdescription in the lands taken
for such improvement.
Voorhees v. Bank of United
States, 10 Pet. 449;
Comstock
v. Crawford, 3 Wall. 396. It is not only an attempt
to raise the question collaterally by one who has no interest in
it, but it is exceedingly doubtful if a simple misdescription
involves any federal question whatever. The errors, too, were
merely clerical, since a map of the property taken, annexed to the
condemnation proceedings, exhibits accurately the lands affected
thereby.
There was no error in the decree of the Supreme Court affirming
the dismissal of the bill, and it is therefore
Affirmed.
MR. JUSTICE HARLAN did not sit in this case.
*
"SEC. 3394. The city, village, or county clerk shall make and
deliver to such attorney, as soon as may be, a copy of such
resolution certified under seal, and it shall be the duty of such
attorney to prepare and file in the name of the city, village, or
county, in the court having jurisdiction of the proceedings, a
petition signed by him in his official character and duly verified
by him; to which petition a certified copy of the resolution of the
common council, board of trustees, or board of supervisors shall be
annexed, which certified copy shall be
prima facie
evidence of the action taken by the common council, board of
trustees, or board of supervisors, and of the passage of said
resolutions. The petition shall state, among other things, that it
is made and filed as commencement of judicial proceedings by the
municipality or county in pursuance of this act to acquire the
right to take private property for the use or benefit of the
public, without consent of the owners, for a public improvement,
designating it, for a just compensation to be made.
A
description of the property to be taken shall be given, and
generally the nature and extent of the use thereof that will be
required in making and maintaining the improvement shall be stated,
and
also the names of the owners and others interested in the
property, so far as can be ascertained, including those in
possession of the premises. The petition shall also state that
the common council or board of trustees or board of supervisors has
declared such public improvement to be necessary, and that they
deem it necessary to take the private property described in that
behalf for such improvement for the use or benefit of the public.
The petition shall ask that a jury be summoned and impaneled to
ascertain and determine whether it is necessary to make such public
improvement, whether it is necessary to take such private property
as it is proposed to take, for the use or benefit of the public,
and to ascertain and determine the just compensation to be made
therefor. The petition may state any other pertinent matter or
things and may pray for any other or further relief to which the
municipality or county may be entitled within the objects of this
act."
"SEC. 3395.
Upon receiving such petition, it shall be the
duty of the clerk of said court to issue a summons against the
respondents named in such petition, stating briefly the object
of said petition, and commanding them, in the name of the people of
the State of Michigan, to appear before said court at a time and
place to be named in said summons, not less than twenty nor more
than forty days from the date of the same, and show cause, if any
they have, why the prayer of said petition should not be
granted."
"SEC. 3399.
The jury shall determine in their verdict the
necessity for the proposed improvement and for taking such private
property for the use or benefit of the public for the proposed
improvement, and in case they find such necessity exists, they
shall award to the owners of such property and others interested
therein such compensation therefor as they shall deem
just,"
etc.
Section 3406, which is also pertinent, is reprinted in full in
Voigt v. Detroit, ante, p.
184 U. S. 115.