It is within the legislative power of a state to create special
taxing districts and to charge the cost of local improvements, in
whole or in part, upon the property in said district either
according to valuation or area, and the legislature may also
classify the owners of property abutting on the improvement made
and those whose property lies a certain distance back of it, and if
all property owners have an equal opportunity to be heard when the
assessment is made the owners of the "back lying" property are not
deprived of their property without due process of law or denied the
equal protection of the laws.
The Barrett Paving Law of Indiana, the constitutionality of
which was sustained by this Court as to abutting property owners in
Shaffer v. Werling, 188 U. S. 516;
Hibben v. Smith, 191 U. S. 310,
sustained also as to back lying property owners following
Voris
v. Pittsburg Plate Glass Co., 163 Ind. 599.
38 Ind.App. 226 affirmed.
Page 210 U. S. 178
This case involves the legality of a tax for street
improvements, imposed on the property of plaintiff in error, herein
called the railway company.
The tax was imposed under a law of the state called the Barrett
Law. The law makes the amount of the assessment a lien upon the
property improved, and gives to the contractor or his assignees the
right to "foreclose such assessment as a mortgage is foreclosed."
Successive suits may be brought if the judgment in the first suit
fails to satisfy the assessment and costs.
The defendants in error were the contractors for the
improvement, and brought this suit in the Circuit Court of Boon
County, Indiana, and alleged in their complaint the adoption under
the law, by the Common Council of the City of Lebanon, where the
property proceeded against is situated, of a declaratory resolution
providing for the grading and paving Main Street and constructing
sidewalks and lawns thereon. The complaint alleged the steps taken
by the council of the city as prescribed by the law; the assessment
against the several lots and parcels of ground abutting on the
street; that one Mary Kelly was the owner of a tract of unplatted
land abutting on the street, which was assessed the sum of $588.56,
her refusal to pay the assessment, and that suit was brought
against her and her husband to foreclose the lien of the
assessment. And it is alleged that, after proceedings had, a decree
was entered for the sum of $650, being the amount of the assessment
and costs. That sale of the property was made under the decree for
the sum of $75, which was its fair cash value, and that there is
still due thereon $581.32, with interest. That the railway company
was the owner of a tract of land immediately back of the real
estate of Mary Kelly, "from the street so improved" -- that is,
that her real estate was situate immediately between the street so
improved and the real estate of the railway company, which real
estate was within one hundred and fifty feet of the line of the
street. A demand for the amount of the balance due on the
assessment was alleged. Judgment was
Page 210 U. S. 179
demanded for that sum, and the foreclosure of the lien of the
assessment against the real estate of the company, and for an order
of sale.
A second paragraph of the complaint alleged a like assessment
against the property of one John T. Walton, the foreclosure of the
lien thereon, and the sale of the property, the balance due, and
that the property of the railway was situated immediately back of
it. The like judgment was prayed as in the first paragraph.
The only parts of the answer with which we are concerned are the
allegations that the land of the railway company did not abut upon
the street improvement, but lay back of lands owned by others which
abutted upon the street, and
"that, in the proceedings of the Common Council of the City of
Lebanon, in an action taken by the civil engineers of said city, in
any notice to property owners, in any assessment of property had,
given, or done with reference to said improvement, this defendant's
said tracts were not named, described, nor referred to, nor was
either of them; that neither of said tracts was assessed for said
improvement, neither of said tracts was considered with reference
to any assessment for said improvement, neither of said tracts was
benefited by said improvement; that the defendant did not appear
before said council or any committee of said council, either
actually or constructively, with reference to either of its said
tracts, and the records of the proceedings of the City of Lebanon
as to said improvements do not disclose any such appearance by, or
notice to, this defendant, or the consideration or assessment of
either of said tracts for such improvement."
The third paragraph of the answer is as follows:
"For third and further answer to the amended complaint and each
of the paragraphs thereof separately, the defendant says that the
acts of the General Assembly of the State of Indiana, under and by
virtue of which it is claimed and assumed that the lien
respectively sued upon have accrued and attach to the respective
tracts of the defendant, is unconstitutional
Page 210 U. S. 180
and void in that it makes no provision for a notice to or a
hearing from the property owner whose property does not abut upon
the street to be improved; it denies due process of law, denies the
equal protection of the laws, and takes private property for public
use without compensation."
Judgment was rendered against the company, which was affirmed by
the appellate court on the authority of
Voris v. Pittsburg
Plate Glass Co., 163 Ind. 599.
Page 210 U. S. 182
MR. JUSTICE McKENNA delivered the opinion of the Court.
There is no question of the regularity of the proceedings. The
controversy, therefore, is over the statute. Does it afford due
process of law? A review of it is necessary to the determination of
the question. It provides that, upon the petition to the common
council of two thirds of the whole line of lots bordering on any
street or alley, consisting of a square between two streets, and if
the council deem the improvement necessary, it shall declare by
resolution the necessity therefor, describing the work, and shall
give two weeks' notice thereof to the property owners in a
newspaper of general circulation published in the city, stating the
time and place when and where the property owners can make
objections to the necessity of the improvement.
If the improvement be ordered, notice is to be given for the
reception of bids. When the improvement has been made and completed
according to the terms of the contract therefor
Page 210 U. S. 183
made, the common council shall cause a final estimate to be made
of the total cost thereof by the city engineer, and shall require
him to report the full facts, the total cost of the improvements,
the average cost per running foot of the whole length of the part
of the street improved, the name of each property owner and the
number of front feet owned by him, with full description of each
lot or parcel of ground bordering on the street improved, the
amount due upon each lot, which shall be ascertained and fixed by
multiplying the average cost price per running foot by the number
of running front feet of the several lots or parcels of ground
respectively.
Upon the filing of this report, the council is required to give
notice of two weeks in a newspaper of the time and place when and
where a hearing can be had before a committee appointed by the
council to consider such reports. The committee is required to
report to the council, recommending the adoption or alteration of
the report, and the council may adopt, alter, or amend it and the
assessments therein. Any person feeling aggrieved by the report
shall have the right to appear before the council, and shall be
accorded a hearing. The council assesses against the several lots
or parcels of land the several amounts which shall be assessed for
and on account of the improvement.
It is provided that the owners of lots bordering on the street,
or the part thereof to be improved, shall be liable to the city for
their proportion of the costs in the ratio of the front line of
their lots to the whole improved line of the improvement, and that
the assessment shall be upon the ground fronting or immediately
abutting on such improvement, back to the distance of one hundred
and fifth feet from such front line, and the city and contractor
shall have a lien thereon for the value of such improvements.
It is further provided that, where the
"land is subdivided or platted, the land lying immediately upon
and adjacent to the line of the street and extending back fifty
feet shall be primarily liable to and for the whole cost of the
improvement,
Page 210 U. S. 184
and should that prove insufficient to pay such cost, then the
second parcel and other parcels, in their order, to the rear parcel
of said one hundred and fifty feet, shall be liable in their
order."
This statute, as to abutting property owners, was sustained by
this Court, following the decisions of the Supreme Court of
Indiana.
Schaefer v. Werling, 188 U.
S. 516;
Hibben v. Smith, 191 U.
S. 310. It was sustained as to "back-lying" property
owners in
Voris v. Pittsburg Plate Glass Co., 163 Ind.
599, and upon that case, as we have seen, the judgment in the case
at bar is based.
It will be observed by referring to the statute that property
owners are given notice of the proposed improvement and opportunity
to object to its necessity, and, when the improvement is completed,
they are also given notice of the filing of the report of the
engineer, and an opportunity to be heard upon it before a
committee, which the statute requires shall be appointed to
consider it. The latter notice, the supreme court, in
Voris v.
Pittsburg Plate Glass Co., decided, gives the common council
complete jurisdiction over the person of every landowner in the
taxing district of the improvement, whether the same abuts on the
improvement or not, and that they are required to take notice that
their real estate in the taxing district will be subject to the
lien of special benefits assessed against it. And the court further
decided that all such owners of real estate within the taxing
district,
"whether back-lying or abutting, have the right to . . . a
hearing on the question of special benefits, which the law requires
said common council or board of trustees to adjust so as to conform
to the special benefits accruing to said abutting real estate."
The contention, however, of the railway company is that in no
stage of the proceeding has the back-lying owner a hearing or an
opportunity to be heard as to the amount to be assessed against his
property. As we have seen, the opportunity to be heard is given to
back-lying owners as to other owners, and the amount of the
assessment against the latter is the amount of the assessment
against the former. This amount is definitely fixed, and
Page 210 U. S. 185
measures the lien upon the back-lying real estate, and the
burden to which it may be subjected if the abutting property fails
to satisfy the assessment.
It may be, however, that the railway company means by its
contention that the back-lying owner is given no opportunity to be
heard by the statute on the amount of the assessment against him,
that he is given no opportunity to be heard on special benefits to
him from the improvement. This was one of the questions presented
in
Voris v. Pittsburg Plate Glass Co. Certain cases were
cited as sustaining an affirmative answer. The court, however,
replied that the question was not involved in those cases, and what
was said in one of them (
Adams v. Aity of Shelbyville, 154
Ind. 467), to the effect that a law which makes no provision for a
hearing on the question of special benefits was in violation of the
Fourteenth Amendment to the Constitution of the United States, was
clearly
obiter dicta. And the court decided, following
French v. Barber Asphalt Paving Co., 181 U.
S. 324, and the cases immediately succeeding it, and,
quoting from
Webster v. Fargo, 181
U. S. 395,
"That it is within the power of the legislature of the state to
create special taxing districts, and to charge the cost of local
improvement, in whole or in part, upon the property in said
district, either according to valuation or superficial area or
frontage. . . ."
Other cases were also cited sustaining the conclusion.
It will be observed, therefore, that the supreme court of the
state decided that a taxing district is created by the legislature
of the property along the line of the improvement, and extending
back therefrom one hundred and fifty feet, and that back-lying
property -- that is, property fifty feet distant from the street,
and within one hundred and fifty feet -- is so far benefited that
it shall be made liable if the abutting fifty feet "prove
insufficient" to pay the cost of the improvement. In other words,
that lands within one hundred and fifty feet of the improvement are
so far benefited by the improvement that they may be made a taxing
district, and subject to the cost of
Page 210 U. S. 186
the improvement. We think, under the cited cases, this was
within the power of the legislature to provide.
The railway company also contends that the statute is
unconstitutional for the reason that it does not give the
back-lying property owner the equal protection of the laws. The
ground of this contention is as the one just disposed of -- that
the abutting owner is, and the back-lying owner is not, given an
opportunity to be heard. To express it differently, and as the
counsel express it, that a specific assessment is made against the
abutting owner, and he is given an opportunity to challenge the
assessment, but the back-lying owner has an assessment made against
him years afterwards, and is given no opportunity whatever to
challenge it. This, as we have seen, is a misapprehension of the
statute. The amount of the assessment is fixed for both owners at
the same time. The abutting owner is made primarily liable for it,
the back-lying owner contingently so. He may never be called upon
to pay. Implied in this contention, however, though not expressed,
there may be the element of a hearing upon benefits; but, if so, it
is disposed of by what has been said. If it was in the power of the
legislature to make the taxing district, as we have decided that it
was, it was within its power to classify the property owners, and
there is certainly no discrimination between the members of the
classes.
Judgment affirmed.
MR. JUSTICE HOLMES took no part in the decision.
