An assessment on lands for the entire expense of opening a
street levied under a front-foot assessment authorized by statute
is not necessarily void under the Fourteenth Amendment because
levied after the work was completed, or because, at the time the
work was ordered, the municipality had power, under statutes
repealed after the completion of the work and before the assessment
was made, to include a portion of the expense in the general taxes
and to levy the assessment on a valuation basis under which a
smaller amount would have been assessed against these lands.
Taxation, whether general or special, is not subject to the
rules applicable to a vendor's lien and its enforcement against a
bona fide purchaser for value, and it is for one
purchasing lands after a public improvement has been completed to
inquire whether it has been paid for, and the same rules as to the
enforcement of the assessment applicable to the former owners are
applicable to him.
The facts are stated in the opinion.
Page 195 U. S. 355
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is an appeal from a decree of the circuit court declaring
an assessment upon the plaintiff's land void under the Fourteenth
Amendment and enjoining the city against enforcing the same. The
facts are these: Weller Street, in Seattle, runs east from Elliott
Bay, and formerly stopped at the east line of Maynard's donation
claim. The land now belonging to the appellee, the plaintiff below,
is a hundred acres to the east of that line, extending to the line
of the Jackson Street Addition. Weller Street, if extended
eastward, would run through the middle of this land for twenty-five
hundred feet. While this land belonged to one Hill, in 1889, he
petitioned that Weller Street be extended and graded to the Jackson
Street Addition line, and he submitted to the city council, and
circulated, although he did not record, plans
Page 195 U. S. 356
showing the extension, with his land on the two sides of it
divided into lots and blocks. The plan was approved, and in 1890
the city passed an ordinance that Weller Street be graded from the
beginning to Jackson Street Addition, and that sidewalks be
constructed on both sides of it coextensive with the grade.
Ordinance No. 1285. The street was graded, and, according to the
testimony, had to be cut and filled almost continuously. It also
was planked for some distance, but the planking stopped about one
thousand feet before reaching Hill's tract. Then an assessment was
levied, but this was held void. The next things that happened were
a sale of Hill's land and a mortgage of it in January, 1892, to the
appellee, which later was foreclosed. The appellee, who lived out
of the state, alleges that he was ignorant of the submission of the
plan by Hill.
On March 9, 1893, an act was approved authorizing a new
assessment, when the old one had been declared void, upon the lands
benefited, to the extent of their proportionate part of the expense
of the improvement, based upon its actual value at the time of its
completion, and having reference to the benefits received. Notice
by publication of a time for hearing objections was provided for,
with an appeal to the courts. Laws of 1893, c. 95. When the
improvement in question was ordered, by the Charter of Seattle, the
planking was to be paid for out of the general taxes. Laws of
1885-1886, pp. 238, 241, § 7. The special assessment for the other
elements, according to the assessed value of the land, could be
imposed upon the abutting property to one hundred and twenty-eight
feet back from the street. This was modified by a new charter,
adopted later in 1890 and still in force. Under the latter, the
assessment was to be by the front-foot, with different percentages
for four parallel subdivisions at successive distances from the
street up to one hundred and twenty feet. It was to be for the
costs of the improvement. To carry out the plan, local improvement
districts were to be established, including all the property within
the termini of the improvement, and
Page 195 U. S. 357
not more than one hundred and twenty feet on each side of the
margin. Reassessments were authorized. In pursuance of the charter,
an ordinance was adopted by the city providing the manner in which
the local assessment should be made. Ordinance No. 2085.
In this state of the ordinances and laws, a reassessment of the
whole cost of the improvement was ordered in January, 1894, in
conformity with the act of 1893, the new charter, and the ordinance
No. 2085. Ordinance No. 3199. The proper steps were taken, and the
assessment was confirmed on March 5, 1894. Ordinance No. 3267. By
this assessment, the whole cost of the improvement, $35,620.60, was
levied on the abutting land, and $14,262.68 was fixed as the
plaintiff's share. It is alleged that he thus is charged forty-four
percent under the present plan, whereas, under the one in force
when the improvement was made, he would have been charged only
thirty-two percent. It also is alleged that, being absent from the
state, he did not know of the reassessment proceedings until they
were concluded.
The bill disputed, among other things, that the prolongation of
Weller Street through the plaintiff's land ever had been dedicated
as a street. But, in view of the assumption by the circuit court
that the dedication was made out, and the statement by it that the
point had been decided by the supreme court of the state, this
objection, if open, very properly was not pressed before us.
See Seattle v. Hill, 23 Wash. 92. Therefore. we have not
gone into details upon that part of the case. We see no cause to
doubt that the circuit court was right. The main ground of argument
is that the planking could not be included in the assessment. The
reasons, as summed up by the circuit court, are that the law in
force at the time of doing the work did not authorize a charge for
planking upon the abutting property, that the ordinance No. 1285,
ordering the improvement, did not authorize any planking, that the
city could assess only the land abutting on the improvement, and
the plaintiff's land was far away from
Page 195 U. S. 358
the planking, and that such an assessment of the whole cost,
including the planking, on the property on Weller Street, is
absolutely unfair as to the plaintiff's land.
A general attack upon the statute of 1893 is not attempted. It
was within the power of the legislature to create, or to authorize
the creation of, special taxing districts, and to charge the cost
of a local improvement upon the property in such a district by
frontage.
Websler v. Fargo, 181 U.
S. 394;
French v. Barber Asphalt Paving Co.,
181 U. S. 324;
McNamee v. Tacoma, 24 Wash. 591, 595; Cooley, Const.Lim.,
7th ed., 729. The only question of principle, therefore, raised by
the inclusion of the planking in the sum of which the plaintiff was
to pay his share is whether it was manifestly unfair in this
particular case. Taken by itself, it looks like an unwarrantable
attempt to make one man pay for another man's convenience.
On the other hand, so far as the work was similar in character
throughout the street, we are of opinion that the improvement might
be regarded as one.
Webster v. Fargo, 181 U.
S. 394.
See Lincoln v. Street Commissioners,
176 Mass. 210, 212. And if this be admitted, we cannot say that the
assessing board might not have been warranted in thinking that
substantial justice was done. There were many cuts and fills made
in grading the road. So far as appears, the heaviest work may have
been done on the plaintiff's land, which seems to have been the
summit of an ascent. Improvement of one sort may have been the
greatest there, while that of a different kind, needed where the
travel was, was at the other end of the street. It is true that the
circuit judge considered that there was manifest injustice in
assessing the plaintiff's land, which was empty and unimproved, by
the front-foot at the same rate as the improved land lower down and
nearer to the bay, and that his opinion naturally carries weight
from his probable acquaintance with the condition of the place. But
we do not find a sufficient warrant for it on the record. We must
consider how things looked at the time. The owner of the land
desired the improvements, if carried out
Page 195 U. S. 359
as he wished. The extension of the street helped to bring his
land into the market. It was more likely to benefit him than those
who were lower down. We cannot invalidate the assessment because
the speculation has failed. Assuming, without deciding, that the
question is open to the plaintiff in this proceeding, we are of
opinion that the record does not justify interference by injunction
on the ground that the assessment was manifestly unfair.
The answer to the other objections may be made in few words. If,
as is said, planking was not authorized under the word "sidewalks"
in ordinance No. 1285, the city has done or adopted the work, and
presumably has paid for it. At the end, the benefit was there, on
the ground at the city's expense. The principles of taxation are
not those of contract. A special assessment may be levied upon an
executed consideration -- that is to say, for a public work already
done.
Bellows v. Weeks, 41 Vt. 590, 599-600;
Mills v.
Charleton, 29 Wis. 400, 413;
Hall v. Street
Commissioners, 177 Mass. 434, 439. If this were not so, it
might be hard to justify reassessments.
See Norwood v.
Baker, 172 U. S. 269,
172 U. S. 293;
Williams v. Albany, 122 U. S. 154;
Frederick v. Seattle, 13 Wash. 428;
Cline v.
Seattle, 13 Wash. 444;
Bacon v. Seattle, 15 Wash.
701; Cooley, Taxation, 3d ed. 1280. The same answer is sufficient
if it be true that, when the work was done, the cost of planking
could not be included in the special assessment, which again
depends on the meaning of the words "sidewalk" and "pave" in the
old charter, § 8, taken with the special provision for planking in
§ 7. Laws of 1885-1886, pp. 238, 241. The charge of planking on the
general taxes was not a contract with the landowners, and no more
prevented a special assessment being authorized for it later than
silence of the laws at the same time as to how it should be paid
for would have. In either case, the legislature could do as it
thought best. Of course, it does not matter that this is called a
reassessment. A reassessment may be a new assessment. Whatever the
legislature
Page 195 U. S. 360
could authorize if it were ordering an assessment for the first
time it equally could authorize, notwithstanding a previous invalid
attempt to assess. The previous attempt left the city free
"to take such steps as were within its power to take, either
under existing statutes, or under any authority that might
thereafter be conferred upon it, to make a new assessment upon the
plaintiff's abutting property"
in any constitutional way.
Norwood v. Baker,
172 U. S. 269,
172 U. S. 293;
McNamee v. Tacoma, 24 Wash. 591;
Annie Wright Seminary
v. Tacoma, 23 Wash. 109.
We think it unnecessary to consider other questions on the part
of the case that we have dealt with. We have said enough in our
opinion to show that the enforcement of the assessment lien could
not be prevented by the original owner. It is urged, however, that
a different rule could be applied in favor of one who purchased the
land under the circumstances stated above. But the attempt to liken
taxation, whether general or special, to the enforcement of a
vendor's lien, and thus to introduce the doctrine concerning
bona fide purchasers for value, rests on a fallacy similar
to that which we have mentioned above, which would deny the right
to tax upon an executed consideration. A man cannot get rid of his
liability to a tax by buying without notice.
See Tallman v.
Janesville, 17 Wis. 71, 76; Cooley, Taxation, 3d ed. 527, 528.
Indeed, he cannot buy without notice, since the liability is one of
the notorious incidents of social life. In this case, the road was
cut through the plaintiff's land, and, if he had looked, was
visible upon the ground. Whether it had been paid for was for him
to inquire. The history of what had happened would have suggested
that it was not improbable that sooner or later a payment must be
made.
Decree reversed.
MR. JUSTICE HARLAN and MR. JUSTICE BROWN dissent.