Where there are allegations of diverse citizenship in the bill,
but the jurisdiction of the Circuit Court is also invoked on
constitutional grounds, the case is appealable directly to this
Court under § 5 of the Act of March 3, 1891, as one involving the
construction or application of the Constitution of the United
States, and where both parties have appealed the entire case comes
to this Court, and the respondent's appeal does not have to go to
the circuit court of appeals.
It is not the purpose of the Fourteenth Amendment to prevent the
states from classifying the subjects of legislation and making
different regulations as to the property of different individuals
differently situated.
The provision of the federal Constitution is satisfied if all
persons similarly situated are treated alike in privileges
conferred or liabilities imposed.
The provision in § 5989, Rev.Stat. of Missouri, that certain
improvements are not to be made if a majority of resident owners of
property liable to taxation protest is not unconstitutional because
it gives the privilege of protesting to them and not to nonresident
owners.
Only such acts as directly interfere with the freedom of
interstate commerce are prohibited to the states by the
Constitution, and the Sherman Act of July 2, 1890, is not intended
to affect contracts which have only a remote and indirect bearing
on commerce between the states. The specification in an ordinance,
not invalid under the laws of the state, that a particular kind of
asphalt produced only in a foreign country does not violate any
federal right.
Although the agent of the company obtaining a paving contract
may have been active and influential in obtaining signatures to the
petition, in the absence of proof of fraud and corruption, the
levies will not be set aside after the improvement has been
completed.
The necessity for an improvement of streets is a matter of which
the proper municipal authorities are the exclusive judges, and
their judgment is not to be interfered with except in cases of
fraud or gross abuse of power.
These cases are appeals from the decree of the Circuit Court of
the United States for the Western District of Missouri.
Page 194 U. S. 619
Richard H. Field, as owner of certain lands abutting on Main
street, Baltimore Avenue, and Wyandotte Street, in Westport,
Missouri, which city was then a suburb and has since become a part
of Kansas City, filed a bill of complaint against the paving
company. The relief sought was against certain tax bills, issued to
pay for the paving of the above-named streets, held by the
defendant company, and to have the same declared void because (1)
the act under which they were assessed violated the Fourteenth
Amendment to the Constitution of the United States; (2) that the
paving in question was unnecessary, and the contract for the same
was the result of undue and illegal influence on the part of the
agents of the defendant company, exercised upon the board of
aldermen of the City of Westport; (3) that the contracts for the
paving required the same to be constructed of Trinidad Lake
asphalt, thereby cutting off competition with other kinds of
asphalt suitable for street paving; (4) that the proceedings and
agreements by which such asphalt was designated in the resolutions,
ordinances, and rules for the construction of said pavements were
in violation of the interstate commerce clause of the Constitution
of the United States (Art. I, sec. 8), and (5) that the said
resolutions, ordinances, and contracts, and the action of the
defendant company in securing the same, were in violation of the
federal antitrust Act of July 2, 1890.
Upon the trial, the circuit court held against the prayer of the
complainant for relief upon the federal grounds alleged, but,
holding that the paving of Wyandotte Street was unnecessary,
granted the prayer of the bill as to the tax bills issued for work
done on that street, and dismissed the bill as to the other two
streets.
Page 194 U. S. 620
MR. JUSTICE DAY delivered the opinion of the Court.
A motion was filed by the appellant to dismiss the appeal of the
paving company, which was postponed to the hearing of these appeals
upon the merits. An examination of the motion, and a consideration
of the briefs filed and arguments made in support of and in
opposition to the same, leads us to the conclusion that it cannot
be sustained. The appellant appealed directly to this Court; for
while there was an allegation of diverse citizenship in the bill,
jurisdiction was also invoked on the constitutional grounds above
stated. This made the case appealable directly to this Court under
section 5 of the Act of March 3, 1891, 1 Comp.Stat.U.S, 1901, 549,
as one which "involves the construction or application of the
Constitution of the United States."
The contention is that the prayer of the complainant on the
constitutional grounds having been denied, the appeal of the
respondent should have been to the circuit court of appeals. But we
cannot agree to this view. There was no cross-bill filed in the
case, and none was required. The bill of complaint contained
allegations sufficient to make a case of alleged violation of
constitutional rights. It is well settled that, in such cases, the
entire case may be brought to this Court by the appeal. In
Holder v. Aultman, 169 U. S. 81
169 U. S. 88,
discussing the Act of March, 1891, Mr. Justice Gray said:
"Upon such a writ of error, differing in these respects from a
writ of error to the highest court of a state, the jurisdiction of
this Court does not depend upon the question whether the right
claimed under the Constitution of the United States has been upheld
or denied in the court below, and the jurisdiction of this Court is
not limited to the constitutional question, but
Page 194 U. S. 621
includes the whole case.
Whitten v. Tomlinson,
160 U. S.
231,
160 U. S. 238;
Penn Ins.
Co. v. Austin, 168 U. S. 685."
Loeb v. Columbia Township Trustees, 179 U.
S. 472.
See also Chappell v. United States,
160 U. S. 499,
160 U. S. 509;
Horner v. United States, 143 U. S. 570,
143 U. S.
577.
If, therefore, the whole case can come to this Court by direct
appeal under the allegations of this bill, and if all the
questions, federal or otherwise, may come up on such appeal, it
must follow that either party aggrieved by the decision may appeal,
and in this case, the complainant appealing, a cross-appeal may be
sued out by the defendant as to the matters decided in the same
case against him. If he fails to take such appeal the correctness
of the decision as against him will be presumed.
Mail
Company v. Flanders, 12 Wall. 130;
Chittenden
v. Brewster, 2 Wall. 191,
69 U. S.
196.
The motion to dismiss the cross-appeal must be denied.
Coming to the merits of the case, the grounds of federal relief
will first be considered. It is claimed that certain sections of
the act of the general assembly of Missouri, which make the tax
bills levied to pay the contract price for the paving, a lien upon
the complainant's real estate, deprive him of his property without
due process of law, and deny to him the equal protection of the
laws. This argument is predicated on section 5989 of the Revised
Statutes of Missouri.
The exact point of objection is that the improvement is not to
be made if a majority of the resident owners of the property liable
to taxation therefor shall file with the city clerk a protest
against such improvement, which privilege of protest is not given
to nonresident owners, thereby discriminating against them. It is
well settled, however, that not every discrimination of this
character violates constitutional rights. It is not the purpose of
the Fourteenth Amendment, as has been frequently held, to prevent
the states from classifying the subjects of legislation, and making
different regulations as to the property of different individuals
differently situated. The provision of the federal Constitution is
satisfied if all
Page 194 U. S. 622
persons similarly situated are treated alike in privileges
conferred or liabilities imposed.
Kentucky Railroad Tax
Cases, 115 U. S. 321;
Hayes v. Missouri, 120 U. S. 68;
Magoun v. Illinois Trust & Savings Bank, 170 U.
S. 283;
Gulf, Colorado & Santa Fe Railroad v.
Ellis, 165 U. S. 150. The
alleged discrimination is certainly not an arbitrary one; the
presence within the city of the resident property owners, their
direct interest in the subject matter, and their ability to protest
promptly if the means employed are objectionable, place them on a
distinct footing from the nonresidents, whom it may be difficult to
reach. Furthermore, there is no discrimination among property
owners in taxing for the improvement. When the assessment is made,
it operates upon all alike. It has been held to be within the power
of the legislature of Missouri to authorize the council to order
the improvement to be made without consulting property owners.
Buchan v. Broadwell, 88 Mo. 31. If the legislature saw fit
to give to those most directly interested, and whose consent could
be most readily obtained, the right to protest, such action did not
deprive other persons of rights guaranteed by the Constitution.
Further objection on federal grounds is urged, in that the
specification of Trinidad Lake asphalt for this improvement is in
violation of the interstate commerce clause of the Constitution of
the United States, and of the so-called Sherman Act of July, 1890.
The right to provide for this paving was vested by the Missouri
statute in the board of aldermen. The right to select the material
for the paving was vested in that body; they saw fit to choose
Trinidad Lake asphalt for the paving. Their right so to do, under
the charter powers of such cities as Westport, notwithstanding
competitive bidding is thereby rendered impossible, has been
sustained by the Supreme Court of Missouri.
Barber Asphalt
Paving Co. v. Hunt, 100 Mo. 22;
Warren v. Barber Asphalt
Paving Co., 115 Mo. 572;
Verdin v. St. Louis, 131 Mo.
26. With the wisdom of this choice the courts have nothing to do,
and in this case we are only concerned to inquire as to the alleged
violation of federal rights
Page 194 U. S. 623
in such selection. The argument is that Trinidad Lake asphalt,
being a product of a foreign country, and brought into Missouri,
and there being other deposits in other states within the United
States from which suitable asphalt could be had, the specification
of this kind of asphalt is an interference with, and a regulation
of, interstate commerce, in violation of the exclusive right of
Congress conferred by the Constitution. It is unnecessary to cite
largely from cases in this Court which hold that only such acts as
directly interfere with the freedom of interstate commerce are
prohibited to the states.
Kidd v. Pearson, 128 U. S.
1, in which case, Mr. Justice Lamar, speaking for the
Court, said (p.
128 U. S.
23):
"As has been often said, legislation [by a state] may, in a
great variety of ways, affect commerce and persons engaged in it,
without constituting a regulation of it within the meaning of the
Constitution."
Pennsylvania R. Co. v. Hughes, 191 U.
S. 477, and cases cited in the opinion. The right of a
state, in the exercise of the police power, to make regulations
which indirectly affect interstate commerce, has been frequently
sustained. In the present case, it may be that the use of this kind
of asphalt, under municipal authority conferred by the state will,
in a limited degree, affect interstate commerce; but it certainly
is not one of those direct interferences with the power over, and
express control of, the subject given by the Constitution to
Congress. In this day of multiplied means of intercourse between
the states, there is scarcely any contract which cannot, in a
limited or remote degree, be said to affect interstate commerce.
But it is only direct interferences with the freedom of such
commerce that bring the case within the exclusive domain of federal
legislation.
The attempt to invoke the provisions of the Sherman act in this
case is equally unavailing. That act has been recently considered
in the
Northern Securities Cases, decided at this term,
and its construction and the nature of the remedies under it
determined. It is not intended to affect contracts which have a
remote and indirect bearing upon commerce
Page 194 U. S. 624
between the states.
Hopkins v. United States,
171 U. S. 578;
Addyston Pipe Co. v. United States, 175 U.
S. 211.
In addition to the ground by which federal jurisdiction was
established in the courts below, it is alleged that the tax bills
should be held void because they were obtained by undue influence
of the agents of the paving company, improperly exercised to obtain
the needed municipal action. The court below held, and an
examination of the testimony has brought us to the same conclusion,
that there was nothing in the case to establish the charges of
fraud and corruption, although the record does show that an agent
of the defendant company was active and perhaps influential in
obtaining signatures to the petition which specified Trinidad Lake
asphalt for this improvement; yet, in the absence of proof of fraud
or corruption, we do not think the contract and resulting levies
can be set aside for this reason. It is one thing to disapprove of
such measures as a matter of propriety of action, but quite another
to set aside a contract, especially after the full performance of
its terms.
Upon the cross-appeal, the learned judge in the court below held
that the Wyandotte Street tax bills were void because that street
had been previously paved with macadam in the years 1892-1893, four
or five years before the asphalt paving was laid, which macadam he
found to be in good condition, and but little worn. The effect of
this decree was, while finding against complainants as to the
allegations of fraud and collusion in obtaining the contract, to
hold that, in the opinion of the trial judge, the repaving of
Wyandotte Street was unnecessary. We think this conclusion
overlooks the fact that the power to construct, improve, and pave
streets was vested by the law of Missouri, as it generally is, in
the board of aldermen. (Laws of Missouri 1895, 65, § 85 to § 95,
inclusive). The necessity of such improvements is a matter of which
they are the exclusive judges, and their judgment is not to be
interfered with by the courts except in cases of fraud or gross
abuse of power. This power of the city board is a continuing
Page 194 U. S. 625
one, and the mere fact that a pavement has been once laid does
not require the interference of the courts when the governing body
of the city, in the exercise of its judgment, has determined that
the necessity for repaving has arisen. The law has vested this
power in the representatives of the city, and the courts are not at
liberty to determine whether the judgment is exercised wisely or
unwisely. If this were not so, a contractor, who acts under the
direction, and because of the action, of the city authorities in
determining the necessity of an improvement, must lose his
compensation if, upon the suit of a property owner, the courts
shall take a different view of the necessity of the improvement. In
other words, the contractor, though acting in good faith and
complying in all respects with his agreement, lawfully made, must
abide the judgment of the courts as upon appeal from the tribunal
solely empowered by law to pass upon the necessity of the
improvement, and to make the necessary contracts to carry it
out.
As we have said, there may be cases of fraud or arbitrary abuse
of power when the courts will intervene. Under other circumstances,
the municipality and property owners interested are bound by the
acts of their agents. The authorities amply sustain this view. 2
Dillon Mun.Corp. (4th ed.) § 686;
Wabash R. Co. v.
Defiance, 167 U. S. 88;
Skinker v. Heman, 148 Mo. 349;
Warren v. Barber
Asphalt Paving Co., 115 Mo. 580.
Applying the principles settled by the authorities to the facts
disclosed in this case, we do not find such evidence of fraud or
gross abuse of power as would warrant the setting aside of the tax
bills for this improvement. The testimony tends to show that the
macadam was considerably worn; its replacement, to the extent of
laying an asphalt pavement on top of it, was deemed necessary by
the city authorities. It does not appear that any protest or
objection was made during the progress of the work. A majority of
the resident owners of lots abutting upon the part of the street to
be improved had petitioned for the asphalt pavement. There is
considerable
Page 194 U. S. 626
testimony tending to show that the value of abutting property
was enhanced by the improvement. These and kindred matters were
before the board. It is not our province to review their judgment,
and we do not think the courts are authorized to interfere with the
discretion vested in them in making the improvement under the
circumstances shown. To hold otherwise would be, as we have said,
to substitute the judgment of the court as to the expediency or
necessity of making such improvement for that of the body delegated
by law with the power and responsibility of action in the
premises.
The court below, having properly held that the case alleged must
fail on the other grounds, should have regarded the judgment of the
board of aldermen as to the necessity of repaving Wyandotte Street
as conclusive upon it. The conclusion reached renders it
unnecessary to consider whether the complainant, having failed to
protest or object to the work before it was begun or during its
progress, can be heard in a court of equity to object to the tax
bills assessed for the benefit of the contractor, after the work is
completed in compliance with the contract.
We think the court below erred in adjudging the tax bills on
Wyandotte Street to be void, and so much of the decree is reversed
with costs; the decree as to the other streets is affirmed, and the
case remanded to the court below, with instructions to dismiss the
bill.