Where a public improvement is completed, and the assessment made
at the instance and on the petition of the owners of the property,
and pursuant, in form at least, to an act of the legislature of the
state, and in strict compliance with its provisions, and with the
petition there is an implied contract that the parties at whose
request and for whose benefit the work was done, will pay for it in
the manner provided for by the act, and after completion of the
work, they cannot set up the unconstitutionality of the act to
avoid the assessment.
An assessment made under such circumstances does not deprive the
owners of their property without due process of law nor take their
property without just compensation.
There are circumstances under which a party who is illegally
assessed may be held to have waived his remedy by conduct which
renders it unjust and inequitable to others that he should be
allowed to complain of the illegality.
An agreement that work for which their property is assessed was
legally done and that the improvement was legally constructed,
executed by property owners for the purpose of obtaining a market
for the sale of bonds by the municipality to enable it to make the
improvement in effect provides that the lien of the assessment to
pay the bonds is valid, and they are estopped from asserting the
unconstitutionality of the law under which the assessment is
made.
This bill was filed in the Circuit Court of the United States
for the Southern District of Ohio against the defendant, as the
treasurer of the County of Franklin, in the State of Ohio, to
enjoin him from taking any proceedings towards the collection of
the balance of an assessment for a local improvement upon land
belonging to the appellants near the City of Columbus, in the State
of Ohio, because, among other grounds alleged in the bill, the
assessment to pay for the improvement as provided for in the act
was to be made by the foot front, and not in proportion to the
special benefit which might result from the improvement to the
property assessed, and on this ground it
Page 194 U. S. 554
was averred that the act violated the Fifth Amendment, and also
section 1 of the Fourteenth Amendment to the federal Constitution.
The bill was dismissed by the circuit court, and from the judgment
of dismissal the plaintiffs have appealed directly to this Court
because the law of Ohio referred to in the bill is claimed to be in
contravention of the federal Constitution. Act of 1891, sec. 5,
U.S.Comp.Stat. 549.
The original plaintiffs were partners doing business under the
name of the Alum Creek Ice Company, and as such were the owners of
the land described in the bill, and soon after the commencement of
this suit, one of the plaintiffs sold out his interest in the
property, including the land, and his grantees were substituted as
plaintiffs in his stead, and assumed his liabilities with regard to
the land. Hereinafter they will all be described as the plaintiffs,
as if they had all originally been parties to the suit, and had
signed the papers and made the representations hereinafter
mentioned.
The answer denied the averments of the bill, and also set up
facts which, as defendant insisted, precluded the plaintiffs from
obtaining relief by injunction, as prayed for in the bill.
Upon the trial, it appeared that the plaintiffs and others were
separate owners of distinct portions of a tract of land adjoining
the City of Columbus, Ohio, and bounded by the Columbus and
Granville turnpike road, which was a public highway leading to and
from the City of Columbus. The tract had a frontage on the road of
9,615.38 feet, of which the plaintiffs owned 1,111 feet. On March
26, 1890, an act was passed by the Ohio Legislature, 87 Ohio Laws
113, which authorized the county commissioners in counties in which
there were situate cities of the first grade of the second class to
improve roads extending from such cities, and other roads and
streets in certain cases. The act provided for an assessment by the
foot front on the adjoining land in order to pay the cost of the
improvement. Immediately upon the passage of the act, and on or
about March 31, 1890, the owners of the tract, including the
plaintiffs, who were owners of a part thereof, inaugurated
proceedings
Page 194 U. S. 555
under the act, and presented a petition to the county
commissioners asking for the improvement of the road through their
property, as provided for in the act. The petition has been lost,
but the evidence shows it was signed in behalf of all the owners of
the land (including the plaintiffs) fronting or abutting on that
part of the road proposed to be improved. The persons who signed
this petition and subsequently other papers on behalf of plaintiffs
were duly authorized so to do. The petition was granted, and the
commissioners made an order to that effect, and for the execution
of the work at an expense of $7.25 per front foot. On or about
August 1, 1890, a contract was entered into for the construction of
the improvement, and between that time and October 16, 1891, the
improvement was completed. An assessment was, on October 15, 1891,
laid upon the whole tract to pay for the cost of the improvement,
which amounted to $11.25 per front foot, thus largely exceeding the
amount originally contemplated as such cost. This cost was thus
enhanced by reason of changes of plans regarding the improvement,
made from time to time as the work progressed, and which were
assented to or asked for by the land owners, including the
plaintiffs.
In order to pay the cash for the cost of this improvement, bonds
were issued and sold by the county commissioners as provided for in
the act, amounting to $110,000, in two issues, the first of $50,000
and the second of $60,000.
The total amount of the assessment on the plaintiffs' land,
assessed per front foot, as provided for in the act, was
$12,812.61, which, as the plaintiffs insist, largely exceeded the
special benefit arising from the improvement, and would result, if
enforced to its full extent, in the confiscation of plaintiffs'
property. The bonds not having been paid, an action was brought on
them against the county commissioners in the federal circuit court
in Ohio, and judgment recovered by the bondholders, which was
affirmed by the United States circuit court of appeals, 119 F. 36,
without, however, passing upon the validity of the assessment now
before this
Page 194 U. S. 556
Court (p. 48). The act under which the improvement is made is
set forth in full in the above report.
After the plaintiffs had paid seven annual installments of the
assessment, each installment amounting to $1,258.61, and the total
being $8,810.27, there remained a balance due on the assessment of
$4,002.34, and this bill was filed on June 12, 1899, for the
purpose of enjoining the collection of the balance remaining unpaid
on the assessment, on the grounds already stated.
Immediately after the contract for doing the work of improvement
was entered into between the county commissioners and the
contractor, and in compliance with the provisions of the act
(section 13), the commissioners designated two of the owners of the
abutting property, who, together with the county surveyor, were to
constitute a board, which was authorized to elect a superintendent
to see that the contract was performed in accordance to its true
intent, and that all orders of the county surveyor in furtherance
thereof were obeyed. Mr. Shepard, one of the plaintiffs, was
designated as a member of the board, and acted as such, with
another landowner and the county surveyor, and elected a
superintendent, as provided for in the act.
Mr. Shepard was also frequently present during the progress of
the work, and knew of the alterations in the work as they were
subsequently and from time to time made. He was familiar with the
law under which the action of the county commissioners was invoked,
and knew that it provided for an assessment upon the abutting
property by the front foot for the payment of the cost of the
improvement.
During the progress of the work, and on June 29, 1891, the agent
of the Columbus Land Association (one of the owners of a portion of
the tract) made a written proposal to the commissioners in relation
to the improvement in question, and agreed that the land
association would secure and pay the entire expense in removing the
earth upon the circle in East Broad Street, and in beautifying and
adorning the circle, upon
Page 194 U. S. 557
the condition that the street around the circle should be
completed and paved in accordance with the plat, order, and
contract mentioned. The plaintiffs, acting under the name of the
Alum Creek Ice Company, together with the other owners of real
estate abutting upon these improvements, addressed a written
communication to the county commissioners in connection with the
foregoing proposal of the land company, in which they spoke of the
improvements "now being made under proceedings by and before this
board of county commissioners of Franklin County," and in which
they also said that they
"hereby withdraw all objection to said improvement and the
assessment of their said real estate therefor on condition that the
foregoing agreement shall be kept by said Columbus Land
Association."
The offer of the company was accepted, and there is no claim
made that the company did not fulfill the agreement.
On September 2, 1891, the owners of the tract (plaintiffs among
them) petitioned the commissioners to cancel the contract, with the
assent of the contractor, for sodding the sides of the improved
roadways, and gave as a reason therefor that a number of the
property owners had informed the contractor that they would rather
have grass seed sown thereon. The petitioners concluded:
"We therefore petition that you cancel the above mentioned
contract, and that each one, for their respective frontage upon
said street, will see to it that grass seed is sown upon said
sideways of East Broad Street this fall, and take upon them selves
the care and charge of the same."
The contract was cancelled, as asked for, with the consent of
the contractor.
There was also presented to the commissioners a communication
signed by the owners of the land, including the plaintiffs, asking
the commissioners to cause all bonds issued by them for the expense
of the improvement to be made for a period of twenty years from the
date thereof,
"and if you can extend the time to twenty years for the bonds
already sold, the extension of the time at which they would mature
would be
Page 194 U. S. 558
satisfactory to the undersigned, all of which we respectfully
petition for."
There was also signed by the plaintiffs Shepard and McLeish,
among others, as members of the board appointed under the act
(section 13), a resolution,
"That the board for the improvement of said street hereby
respectfully requests the county commissioners to do all in their
power to carry out the prayer of said petition,"
the petition being to the board of county commissioners to take
steps to have the bonds for the improvement extended so as to run
twenty years.
There was also signed by all the landowners, including the
plaintiffs, a communication, which, on account of its recitals and
statement, is set forth at length:
"Whereas, on the 31st day of March, 1890, a petition signed by
the subscribers hereto was by us presented to the Board of County
Commissioners of Franklin County, Ohio, praying for the improvement
of the extension of East Broad Street, in this county, beginning at
the bridge across Alum Creek on said street and extending
eastwardly therefrom to the Cassady Road, which said portion of
said street lies in Marion Township, said county, which said
improvement was in said petition prayed to be made under the
provisions of an act of the General Assembly of Ohio, entitled"
"An Act to Authorize County Commissioners in Counties in Which
There Are Situated Cities of the First Grade of the Second Class,
to Improve Roads Extending from Such Cities, and Other Roads or
Streets in Certain cases. Passed March 26, 1890."
"Which said petition stated with what material said street
should be paved and what provisions should be made for sidewalks,
gutters, and other passages for carrying off the water, and between
what points said street was to be improved, and the kind of
material of a permanent character said petitioners desired used in
said improvement, and whereas said petition was signed by all the
persons owning property abutting upon the portion of said street in
said petition asked to be improved, said petition stating the
number of feet between the termini of said improvement; "
Page 194 U. S. 559
"And whereas, such proceedings were had by said board of county
commissioners on said petition and in accordance with said act of
the general assembly that the prayer of said petition was granted
and said improvement made in accordance with the prayer of said
petition; and"
"Whereas said original petition as well as other papers relating
to said improvement have been lost or mislaid:"
"Now, in consideration of said improvement, and in order that
the bonds to be issued to pay for said improvement may not lie
under suspicion, or remain unsold by reason of the absence or loss
of said original papers,"
"We hereby agree that such petition hereinbefore recited was
filed, signed by us as herein stated, and that we will not set up
as a defense against any assessment upon our said property abutting
upon said improvement for the payment of bonds issued on account
thereof any informality arising from the absence or loss of any of
said papers, but agree that said improvement was legally made and
constructed."
This paper was signed before the bonds, spoken of therein, were
issued by the commissioners. It was required by the proposed
purchaser of the bonds before they were taken and paid for. After
the paper was signed, the county commissioners thereupon issued the
bonds, and delivered them to the Ohio National Bank of Columbus as
agents for the purchasers.
After the improvements were completed, the plaintiffs, in
connection with other property owners, signed a petition to the
county commissioners to lay sewer pipe (a 15 and a 24-inch pipe),
and the petition provided:
"The expense of said work to be assessed against the respective
property on the street, the same as other expenses for making said
improvement are levied and paid."
This is claimed to be a recognition of the assessment after the
improvement had been made, and after the landowners knew what it
was, of their willingness to be still further assessed to effect a
complete work.
Another paper, containing somewhat more in detail the
Page 194 U. S. 560
alleged facts regarding the improvement, and ending with the
statement,
"Said improvement has been, and is now being, legally made and
constructed, and we hereby request that you execute and issue such
further amount of bonds as shall be necessary to pay the cost of
improvement,"
and purporting to be signed by the plaintiffs, among others, was
offered (though it does not appear to have been received) in
evidence. It was objected to by the plaintiffs on the ground that
there was no proof that the paper had been signed by the
plaintiffs, and that, if the paper was a copy of another paper of
similar import, the original was already in evidence. The record
does not disclose what was the decision upon the objection thus
made. The paper, it was stipulated between the parties, was a copy
of the county commissioners' record of Franklin County, Ohio. A
motion was also subsequently made to suppress this testimony, but
no decision of the motion is disclosed by the record.
During the making of the improvement, and for some time
thereafter, all parties assumed the act of 1890, under which the
improvement was made, was constitutional.
The court below, upon all the evidence, held that it would
consider but one matter of defense -- that of estoppel -- and held
that it was sufficiently made out, and accordingly dismissed the
bill.
Page 194 U. S. 564
MR. JUSTICE PECKHAM, after making the above statement of facts,
delivered the opinion of the Court.
Both parties in this case seem to agree that the statute of
1890, under which these proceedings were taken, is void as in
violation of the state constitution. As authority for that
proposition, the case of
Hixson v. Burson, 54 Ohio St.
470, is cited. The case holds that a statute of a nature similar to
the one under consideration violated the provision of the Ohio
Constitution because, while its subject matter was general, its
operation and effect were local, thus violating the provisions of
section 26 of article 2 of the constitution of that state, which
provides that "All laws of a general nature shall have a uniform
operation throughout the state." The act under consideration in the
case at bar seems to come within the principle of the above
case.
The invalidity of the act as in violation of the state
constitution has also been recognized by the Circuit Court of
Appeals in the Sixth Circuit in the case of
Board of
Commissioners v. Gardiner Savings Institution, 119 F. 36.
The bonds were held in that case to be valid obligations of the
county, notwithstanding the unconstitutionality of the act under
which they were issued, because at the time of their issue, which
was before the decision in
Hixson v. Burson, and Supreme
Court of Ohio had held in
State v. Board of Franklin County
Commissioners, 35 Ohio St. 459, that an act which was in all
respects similar in its nature to the one under consideration was
constitutional and valid, and the circuit court of appeals
therefore held that, under those circumstances, the law as it had
been declared at the time when the bonds were issued was the law
applicable to them.
But the plaintiffs also insist that the act is void as a
violation of the Fifth and Fourteenth Amendments to the federal
Constitution. The assessment per foot front, it is contended, leads
in this case to a confiscation of the property of the plaintiffs,
and is not based upon the fact of benefits received, and
Page 194 U. S. 565
it results in taking the property of plaintiffs without due
process of law.
Before coming to the consideration of the validity of these
objections to the statute, the defendant insists that, by virtue of
the facts already detailed in the foregoing statement, the
plaintiffs are not in a position to raise the question. We regard
this objection as well taken.
The facts upon which the defense rests are above set forth at
length, not including the paper, which does not appear to have been
received in evidence. A defense of this nature and upon these facts
need not be placed entirely upon the strict and technical
principles of an estoppel. While it partakes very strongly of that
character, it also assumes the nature of a contract, implied from
the facts, by which the party obtaining the benefit of the work
agrees to pay for it in the manner provided in the statute under
which it is done, even though the statute turn out to be
unconstitutional. It does not in the least matter what we may call
the defense, whether it be estoppel or implied contract, or one
partaking of the nature of both, the result arrived at being that
the plaintiffs are told that, under all the facts proved in the
case, they cannot set up the unconstitutionality of the act, or
that they are bound by their contract to pay the assessment. Where,
as in this case, the work is done and the assessment made at the
instance and request of the plaintiffs and the other owners, and
pursuant to an act (in form at least) of the legislature of the
state, and in strict compliance with its provisions and with the
petition of the landowners, there is an implied contract arising
from such facts that the party at whose request and for whose
benefit the work has been done will pay for it in the manner
provided for by the act under which the work was done.
In this case, the manner of payment was, as provided for in the
act, by an assessment upon the land by the foot front. The money
thus collected would form a fund to be used to pay the bonds which
were to be issued in accordance with the act by the county
commissioners, acting for the county. The
Page 194 U. S. 566
county thus became the debtor for a debt which was incurred
entirely for the benefit, and at the request, of the owners of the
land. Under such facts, the county has the right to look at the
assessment upon the land as the fund out of which to pay the bonds.
In this view, the constant and frequent promises and
representations made by the plaintiffs after the work was embarked
upon are material evidence of the implied contract to pay for the
work, arising from the request for its performance. It is therefore
upon these facts, immaterial that the law under which the
proceedings were conducted was unconstitutional, because the work
was done at the special request of the owners, under the provisions
of the act, and upon a contract, both implied and in substance
expressed, that the bonds would be paid, and the assessment to be
imposed for the raising of a fund to pay them would be legal and
proper.
Although the landowners have been greatly disappointed in the
results of the improvement, and the affair has proved somewhat
disastrous, yet they have obtained just such an improvement as they
asked for and expected, and they are the ones to bear the
disappointment and loss.
It is true this action is not between the bondholders and the
owners of the land. The representations and agreement of the
landowners were, however, made for the purpose of obtaining a
market for the sale of the bonds, and, in order that there should
not be any suspicion of their invalidity, the landowners agreed
that the work was legally done, and the improvement legally
constructed. The representation and agreement were, in fact
directed to all who might be interested in the matter, including
the county commissioners, who were to issue the bonds as
representatives of the county. The effect was to provide in
substance that the lien of the assessment should be valid and the
assessment should create a fund for the payment of the bonds. The
defendant, representing the county, must be permitted to take
advantage of the representations and agreement of the landowners,
as the county has a direct interest in sustaining the validity of
the assessment, and the representations
Page 194 U. S. 567
were made, among others, to the county commissioners, who
represented the county in issuing the bonds and in doing the
work.
On principles of general law, we are satisfied that the
plaintiffs are not in a position to assert the unconstitutionality
of the act under which they petitioned that proceedings should be
taken, and that the assessment should be made in accordance with
those provisions. This principle has been recognized in Ohio many
times.
See State v. Mitchell, 31 Ohio St. 592, 609;
Tone v. Columbus, 39 Ohio St. 281, 296;
Colunbus v.
Sohl, 44 Ohio St. 479, 481;
Columbus v. Slyh, 44 Ohio
St. 484;
Mott v. Hubbard, 59 Ohio St. 199, 211.
In
Wight v. Davidson, 181 U. S. 371,
this Court, while not positively deciding the proposition, yet
strongly intimated (p.
181 U. S. 377)
that, by reason of the acts of the appellees, they were not in a
position to question the validity of the statute there under
consideration, but as there were others than the appellees
concerned, and a decision of the court of appeals had declared the
act void as to the appellees, it was thought better to pass by the
question whether they were estopped by having made the dedication
provided for in the act, and to decide the question of the
constitutionality of the act of Congress under which the
proceedings were had. The act was held to be valid.
Under some circumstances, a party who is illegally assessed may
be held to have waived all right to a remedy by a course of conduct
which renders it unjust and inequitable to others that he should be
allowed to complain of the illegality. Such a case would exist if
one should ask for and encourage the levy of the tax of which he
subsequently complains, and some of the cases go so far in that
direction as to hold that a mere failure to give notice of
objections to one who, with the knowledge of the person taxed, as
contractor or otherwise, is expending money in reliance upon
payment from the taxes, may have the same effect. Cooley on
Taxation, p. 573, and cases cited in note 5;
Tash v.
Adams, 10 Cush. 252;
Bidwell v. Pittsburgh, 85 Pa.
412;
Shutte v.
Thompson, 15 Wall. 151.
Page 194 U. S. 568
Provisions of a constitutional nature, intended for the
protection of the property owner, may be waived by him not only by
an instrument in writing, upon a good consideration, signed by him,
but also by a course of conduct which shows an intention to waive
such provision, and where it would be unjust to others to permit it
to be set up. Certainly when action of this nature has been induced
at the request, and upon the instigation, of an individual, he
ought not to be thereafter permitted, upon general principles of
justice and equity, to claim that the action which he has himself
instigated and asked for, and which has been taken upon the faith
of his request, should be held invalid, and the expense thereof,
which he ought to pay, transferred to a third person.
Plaintiffs argue that, although the work was to be done under
the provisions of the act of 1890, yet they had the right to assume
that the assessment to be imposed for the payment of the bonds
would be what they term a valid assessment, or, in other words,
would be made as they insist, not upon the foot front (as provided
for in the act), but according to the actual benefit received from
the improvement, and they cite
Birdseye v. Clyde, 61 Ohio
St. 27, as authority for the proposition.
In that case, it was held that the landowner was not estopped to
object to the assessment because he had acquiesced in the
construction of the improvement and had petitioned therefor, and
thereby consented to the raising of a certain proportion of its
cost by an assessment on all abutting property. There was, however,
a statute, which provided that no assessment should be made on any
lot or land for an improvement in excess of twenty-five percent of
the value of the property as assessed for taxation. Although the
plaintiff had petitioned for the improvement, it was held that he
was not on that account estopped from objecting to any assessment
which was over twenty-five percent of the value of the property. It
was not to be assumed that the plaintiff waived the benefit of the
general statute because he asked for the work. The case has
Page 194 U. S. 569
no application, as we think, to the one before us. Certainly, in
the
Birdseye case, the plaintiff had a right to assume,
notwithstanding his petition that the work should be done, that the
assessment on his land should not be greater than the law provided
for. But in the case at bar, the petition asked for the doing of
the work under the very statute which in terms provided that the
assessment should be made by the foot front, exactly as in fact it
was made, and in making such assessment the commissioners but
complied with the request of the petitioners.
The plaintiffs have referred to
O'Brien v. Wheelock,
184 U. S. 450, as
the chief authority to support their contentions as to estoppel. In
that case, while the estoppel contended for was denied, yet (at
page
184 U. S.
491), it is stated, in the opinion of the Court, which
was delivered by THE CHIEF JUSTICE, that:
"The result is not inconsistent with the cases that hold that,
although a law is found to be unconstitutional, a party who has
received the full benefit under it may be compelled to pay for that
benefit according to the terms of the law. This is upon the theory
of an implied contract, the terms of which may be sought in the
invalid law, and which arises when the full consideration has been
received by the party against whom the contract is sought to be
enforced."
In the case at bar, it is seen that the plaintiffs did in fact
receive the full consideration for the contract. They obtained the
improvement asked for, so far as the doing of the work was
concerned, although the results arising therefrom were a great
disappointment to them.
Looking at the facts in the case cited, they show that the
scheme proposed and under which the proceedings were taken was of
large proportions, and consisted of a plan to redeem from overflow
by the Mississippi River a large amount of land, from three to five
miles in width, extending along the river for more than fifty
miles, containing over one hundred thousand acres, lying in
portions of three different counties, varying greatly in condition
and value, and owned severally by a great
Page 194 U. S. 570
number of people. The work was to be done by building levees and
digging drains and ditches, and doing other work by which to drain
the land and render it valuable for agricultural purposes. Certain
of the landowners had at all times opposed the proceedings
instituted to assess their land. The permanent success of the
scheme rested in the character of the work and in its maintenance
by compulsory process after it had been constructed in its various
branches. The case is one seldom equalled in respect to the size of
the tract to be reclaimed at the expense of the landowners, the
numbers interested as such owners, and the immense expense of the
work. The first requisite was a valid act of the legislature
authorizing the work, and providing a means for its accomplishment.
To that end the act of 1871 was passed. The history of the
proceeding thereafter is given, commencing at page
184 U. S. 457
of the report in 184 U.S., but it is entirely too long to be
referred to here in detail. It is enough to say that, after
perusing it, there will be found great difficulty in perceiving
even a slight analogy to the case before us. The facts cannot be
summarized. They must be appreciated in all their fullness and
detail, and when thus examined, the result arrived at will, as we
think, seem inevitable. The case was
sui generis.
The one great purpose was not alone to build, but to maintain, a
work which in its nature would require constant supervision and
repair. Unless the work could be maintained by compulsion when
necessary, it plainly would have appeared at the very beginning to
involve an idle waste of money. It could not be maintained unless
the act upon which the whole scheme rested was valid, and could
from time to time and always be enforced. But that act was held to
be unconstitutional long before the work was completed, and the
landowners, on account of the inability to compel either the
completion or the maintenance of the work, were unable to receive
the benefit which it had been supposed would accrue under the act
thus declared illegal. The work never was
Page 194 U. S. 571
fully and in all things completed, while the credit of the
bonds, which were issued to the contractors for doing the work, and
sold by them, was maintained by reference simply to the law under
which they were issued, and upon the opinion of counsel as to its
validity.
It also appears that the landowners never gave any assurance to
the contractors for the work or to those who purchased the bonds
after they were delivered to the contractors, regarding their
validity or value, but they supposed if the work were done it could
and would be kept up under the sanction of the law which provided
for it.
Upon the facts as detailed in the report, the Court held that
there was nothing in the general principles of implied contract
which would prevent the landowners from resisting the enforcement
of the lien of the bonds upon the land.
In contrast with these facts, it is seen that in the case at bar
the plaintiffs and other landowners have received full
consideration for their promise, and have obtained precisely what
they asked for and in the manner they asked it. We have also the
written petition for the improvement, and active participation of
the plaintiffs in carrying it out under the act, the frequent
statements on their part and upon the part of the other landowners
of the validity of the work, and the regularity of the assessment
to be made under the terms of the act, and the specific statement,
made for the purpose of inducing the issuing of the bonds and their
purchase by the individuals who took them, that practically the
work had been done properly, and there was no defense to the bonds.
This is equivalent to saying the assessment to be laid as
requested, under the act of 1890, would be valid, and no defense
interposed to its collection. The differences of fact in the two
cases show that the
O'Brien case furnishes no authority
for the plaintiffs herein. We concur in the remarks of the district
judge in this case, when he said that:
"The complainants invoked the action of the county commissioners
to enhance the value of their land; they actively promoted the
improvement, knowing that its
Page 194 U. S. 572
cost must be paid by a front foot assessment on their property;
they recognized the justice of the assessment from time to time
during the progress of the work, and afterwards by paying annual
installments of the assessment for seven years, and until they were
tempted by the decision of the Supreme Court, in
Norwood v.
Baker, 172 U. S. 269, to cast their
burden upon the general public, and it is now too late to complain
of the method of the assessment or of the lack of the special
benefits which were dissipated by the collapse of the 'boom.'"
We do not consider the validity of the contention on the part of
the plaintiffs that the act, or the assessment in furtherance of
its provisions, violates in any particular the federal
Constitution. For the reason given above, we are of opinion the
judgment is right, and it is
Affirmed.
