The legislature of a state may authorize municipal improvements
without any petition of landowners to be assessed therefor, and
proceedings of a municipality in accordance with charter provisions
and without hearings authorizing an improvement do not deny due
process of law to landowners who are afforded a hearing upon the
assessment itself.
The decision of a state court that a city council properly
determined that the board of public works had acted within its
jurisdiction under the city charter does not involve a federal
question reviewable by this Court.
Where the state court has construed a state statute so as to
bring it into harmony with the federal and state constitutions,
nothing in the Fourteenth Amendment gives this Court power to
review the decision on the ground that the state court exercised
legislative power in construing the statute in that manner, and
thereby violated that Amendment.
There are few constitutional restrictions on the power of the
states to assess, apportion, and collect taxes, and in the
enforcement of such restrictions, this Court has regard to
substance, and not form, but where the legislature commits the
determination of the tax to a subordinate body, due process of law
requires that the taxpayer he afforded a hearing of which he must
have notice, and this requirement is not satisfied by the mere
right to file objections, and where, as in Colorado, the taxpayer
has no right to object to an assessment in court, due process of
law a guaranteed by the Fourteenth Amendment require that he have
the opportunity to support his objections by argument and proof at
some time and place.
The denial of due process of law by municipal authorities while
acting as a board of equalization amounts to a denial by the
state.
33 Colo. 104 reversed.
The facts are stated in the opinion.
Page 210 U. S. 374
MR. JUSTICE MOODY delivered the opinion of the Court.
The plaintiffs in error began this proceeding in a state court
of Colorado to relieve lands owned by them from an assessment of a
tax for the cost of paving a street upon which the lands abutted.
The relief sought was granted by the trial court, but its action
was reversed by the supreme court of the state, which ordered
judgment for the defendants. 33 Colo. 104, 80 P. 117. The case is
here on writ of error. The supreme court held that the tax was
assessed in conformity with the Constitution and laws of the state,
and its decision of that question is conclusive.
The assignments of error relied upon are as follows:
"First. The Supreme Court of Colorado erred in holding and
deciding that the portion of proviso 'eighth' of § 3 of article 7
of 'An Act to Revise and Amend the Charter of the City of Denver,
Colorado, Signed and Approved by the Governor of Colorado, April 3,
1893' (commonly called the Denver City Charter of 1893), which
provided,"
"And the finding of the city council by ordinance that any
improvements provided for in this article were duly ordered after
notice duly given, or that a petition or remonstrance was or was
not filed as above provided, or was or was not subscribed by the
required number of owners aforesaid, shall be conclusive in every
court or other tribunal,"
"as construed by the Supreme Court of Colorado, was valid and
conclusive as against these appellees. The validity of so much of
said section as is above quoted was drawn in question and denied by
appellees in said cause on the ground of its being repugnant to the
due process of law clause of the Fourteenth Amendment of the
Constitution of the United States, and in contravention
thereof."
"Second. The Supreme Court of Colorado further erred in assuming
that said city council ever made a finding by ordinance in
accordance with said proviso 'eighth.'"
"
* * * *"
"Fifth. The Supreme Court of Colorado more particularly erred in
holding and deciding that the city authorities, in
Page 210 U. S. 375
following the procedure in this Eighth Avenue Paving District,
No. 1, of the City of Denver, Colorado, in the manner in which the
record, evidence, and decree of the trial court affirmatively shows
that they did, constituted due process of law as to these several
appellees (now plaintiffs in error) as guaranteed by the Fourteenth
Amendment of the Constitution of the United States."
"Ninth. The Supreme Court of Colorado erred in upholding
sections 29, 30, and 31, and each thereof, of article 7 of 'An Act
to Revise and Amend the Charter of the City of Denver, Colorado,
Signed and Approved by the Governor of Colorado April 3d 1893'
(commonly called the Denver City Charter of 1893), and not holding
it special legislation and a denial of the equal protection of the
laws and taking of liberty and property of these several plaintiffs
in error without due process of law, in violation of both the state
and federal Constitution and the Fourteenth Amendment thereof."
"Tenth. The Supreme Court of Colorado erred in upholding each of
the several assessments against the corner lots, and particularly
those lots belonging to said Wolfe Londoner and Dennis Sheedy,
because each thereof was assessed for the paving and other
improvements in this district alone for more than the several lots
so assessed were ever actually worth, and far in excess of any
special benefits received from the alleged improvements."
These assignments will be passed upon in the order in which they
seem to arise in the consideration of the whole case.
The tax complained of was assessed under the provisions of the
Charter of the City of Denver, which confers upon the city the
power to make local improvements and to assess the cost upon
property specially benefited. It does not seem necessary to set
forth fully the elaborate provisions of the charter regulating the
exercise of this power, except where they call for special
examination. The board of public works, upon the petition of a
majority of the owners of the frontage to be assessed, may order
the paving of a street. The board must, however, first adopt
specifications, mark out a district of assessment,
Page 210 U. S. 376
cause a map to be made and an estimate of the cost, with the
approximate amount to be assessed upon each lot of land. Before
action, notice by publication and an opportunity to be heard to any
person interested must be given by the board.
The board may then order the improvement, but must recommend to
the city council a form of ordinance authorizing it, and
establishing an assessment district, which is not amendable by the
council. The council may then, in its discretion, pass or refuse to
pass the ordinance. If the ordinance is passed, the contract for
the work is made by the mayor. The charter provides that
"the finding of the city council, by ordinance, that any
improvements provided for in this article were duly ordered after
notice duly given, or that a petition or remonstrance was or was
not filed as above provided, or was or was not subscribed by the
required number of owners aforesaid, shall be conclusive in every
court or other tribunal."
The charter then provides for the assessment of the cost in the
following sections:
"SEC. 29. Upon completion of any local improvement, or, in the
case of sewers, upon completion from time to time of any part or
parts thereof, affording complete drainage for any part or parts of
the district, and acceptance thereof by the board of public works,
or whenever the total cost of any such improvement, or of any such
part or parts of any sewer, can be definitely ascertained, the
board of public works shall prepare a statement therein, showing
the whole cost of the improvement, or such parts thereof, including
six percent additional for costs of collection and other
incidentals, and interest to the next succeeding date upon which
general taxes, or the first installment thereof, are, by the laws
of this state, made payable, and apportioning the same upon each
lot or tract of land to be assessed for the same, as hereinabove
provided, and shall cause the same to be certified by the president
and filed in the office of the city clerk."
"SEC. 30. The city clerk shall thereupon, by advertisement for
ten days in some newspaper of general circulation, published
Page 210 U. S. 377
in the City of Denver, notify the owners of the real estate to
be assessed that said improvements have been, or are about to be,
completed and accepted, therein specifying the whole cost of the
improvements and the share so apportioned to each lot or tract of
land, and that any complaints or objections that may be made in
writing, by the owners, to the city council and filed with the city
clerk within thirty days from the first publication of such notice,
will be heard and determined by the city council before the passage
of any ordinance assessing the cost of said improvements."
"SEC. 31. After the period specified in said notice, the city
council, sitting as a board of equalization, shall hear and
determine all such complaints and objections, and may recommend to
the board of public works any modification of the apportionments
made by said board; the board may thereupon make such modifications
and changes as to them may seem equitable and just, or may confirm
the first apportionment, and shall notify the city council of their
final decision, and the city council shall thereupon by ordinance
assess the cost of said improvements against all the real estate in
said district respectively in the proportions above mentioned."
It appears from the charter that, in the execution of the power
to make local improvements and assess the cost upon the property
specially benefited, the main steps to be taken by the city
authorities are plainly marked and separated: 1. The board of
public works must transmit to the city council a resolution
ordering the work to be done and the form of an ordinance
authorizing it and creating an assessment district. This it can do
only upon certain conditions, one of which is that there shall
first be filed a petition asking the improvement, signed by the
owners of the majority of the frontage to be assessed. 2. The
passage of that ordinance by the city council, which is given
authority to determine conclusively whether the action of the board
was duly taken. 3. The assessment of the cost upon the landowners
after due notice and opportunity for hearing.
Page 210 U. S. 378
In the case before us, the board took the first step by
transmitting to the council the resolution to do the work and the
form of an ordinance authorizing it. It is contended, however, that
there was wanting an essential condition of the jurisdiction of the
board -- namely, such a petition from the owners as the law
requires. The trial court found this contention to be true. But, as
has been seen, the charter gave the city council the authority to
determine conclusively that the improvements were duly ordered by
the board after due notice and a proper petition. In the exercise
of this authority, the city council, in the ordinance directing the
improvement to be made, adjudged, in effect, that a proper petition
had been filed. That ordinance, after reciting a compliance by the
board with the charter in other respects, and that
"certain petitions for said improvements were first presented to
the said board, subscribed by the owners of a majority of the
frontage to be assessed for said improvements, as by the city
charter required,"
enacted
"That, upon consideration of the premises, by city council doth
find that, in their action and proceedings in relation to said
Eighth Avenue Paving District Number 1, the said board of public
works has fully complied with the requirements of the city charter
relating thereto."
The state supreme court held that the determination of the city
council was conclusive that a proper petition was filed, and that
decision must be accepted by us as the law of the state. The only
question for this Court is whether the charter provision
authorizing such a finding, without notice to the landowners,
denies to them due process of law. We think it does not. The
proceedings, from the beginning up to and including the passage of
the ordinance authorizing the work, did not include any assessment
or necessitate any assessment, although they laid the foundation
for an assessment, which might or might not subsequently be made.
Clearly all this might validly be done without hearing to the
landowners, provided a hearing upon the assessment itself is
afforded.
Voigt v. Detroit, 184 U.
S. 115;
Goodrich v. Detroit, 184 U.
S. 432. The
Page 210 U. S. 379
legislature might have authorized the making of improvements by
the city council without any petition. If it chose to exact a
petition as a security for wise and just action, it could, so far
as the federal Constitution is concerned, accompany that condition
with a provision that the council, with or without notice, should
determine finally whether it had been performed. This disposes of
the first assignment of error, which is overruled. The second
assignment is that the court erred in deciding that the city
council had determined that the board of public works had complied
with the conditions of its jurisdiction to order the work done. It
is enough to say that this is not a federal question.
We see nothing in the sixth assignment of error. It is
apparently based upon the proposition that, in construing a law of
the state in a manner which the plaintiffs in error think was
clearly erroneous, the supreme court of the state exercised
legislative power, and thereby violated the Fourteenth Amendment.
We are puzzled to find any other answer to this proposition than to
say that it is founded upon a misconception of the opinion of the
court and of the effect of the Fourteenth Amendment. The complaint
in this assignment is not that the court gave a construction to the
law which brought it into conflict with the federal Constitution,
but that, in construing the law so as to bring it into harmony with
the federal and state constitutions, the court so far neglected its
obvious meaning as to make the judgment an exercise of legislative
power. We know of nothing in the Fourteenth Amendment which gives
us authority to consider a question of this kind. We think it
fitting, however, to say that we see nothing extraordinary in the
method of interpretation followed by the court, or in its results.
Whether we should or not have arrived at the same conclusions is
not of consequence.
The ninth assignment questions the constitutionality of that
part of the law which authorizes the assessment of benefits. It
seems desirable, for the proper disposition of this and the next
assignment, to state the construction which the supreme
Page 210 U. S. 380
court gave to the charter. This may be found in the judgment
under review and two cases decided with it.
Denver v.
Kennedy, 33 Colo. 80;
Denver v. Dumars, 33 Colo. 94.
From these cases it appears that the lien upon the adjoining land
arises out of the assessment; after the cost of the work and the
provisional apportionment is certified to the city council, the
landowners affected are afforded an opportunity to be heard upon
the validity and amount of the assessment by the council, sitting
as a board of equalization; if any further notice than the notice
to file complaints and objections is required, the city authorities
have the implied power to give it; the hearing must be before the
assessment is made; this hearing, provided for by § 31, is one
where the board of equalization "shall hear the parties complaining
and such testimony as they may offer in support of their complaints
and objections as would be competent and relevant," 33 Colo. 97,
and that the full hearing before the board of equalization excludes
the courts from entertaining any objections which are cognizable by
this board. The statute itself therefore is clear of all
constitutional faults. It remains to see how it was administered in
the case at bar.
The fifth assignment, though general, vague, and obscure, fairly
raises, we think, the question whether the assessment was made
without notice and opportunity for hearing to those affected by it,
thereby denying to them due process of law. The trial court found
as a fact that no opportunity for hearing was afforded, and the
supreme court did not disturb this finding. The record discloses
what was actually done, and there seems to be no dispute about it.
After the improvement was completed, the board of public works, in
compliance with § 29 of the charter, certified to the city clerk a
statement of the cost, and an apportionment of it to the lots of
land to be assessed. Thereupon, the city clerk, in compliance with
§ 30, published a notice, stating,
inter alia, that the
written complaints or objections of the owners, if filed within
thirty days, would be "heard and determined by the city council
before the passage
Page 210 U. S. 381
of any ordinance assessing the cost." Those interested therefore
were informed that, if they reduced their complaints and objections
to writing, and filed them within thirty days, those complaints and
objections would be heard, and would be heard before any assessment
was made. The notice given in this case, although following the
words of the statute, did not fix the time for hearing, and
apparently there were no stated sittings of the council acting as a
board of equalization. But the notice purported only to fix the
time for filing the complaints and objections, and to inform those
who should file them that they would be heard before action. The
statute expressly required no other notice, but it was sustained in
the court below on the authority of
Paulsen v. Portland,
149 U. S. 30,
because there was an implied power in the city council give notice
of the time for hearing. We think that the court rightly conceived
the meaning of that case, and that the statute could be sustained
only upon the theory drawn from it. Resting upon the assurance that
they would be heard, the plaintiffs in error filed within the
thirty days the following paper:
"Denver, Colorado, January 13, 1900"
"To the Honorable Board of Public Works and the Honorable Mayor
and City Council of the City of Denver:"
"The undersigned, by Joshua Grozier, their attorney, do hereby
most earnestly and strenuously protest and object to the passage of
the contemplated or any assessing ordinance against the property in
Eighth Avenue Paving District No. 1, so called, for each of the
following reasons, to-wit:"
"1st. That said assessment and all and each of the proceedings
leading up to the same were and are illegal, voidable, and void,
and the attempted assessment, if made, will be void and
uncollectible."
"2nd. That said assessment and the cost of said pretended
improvement should be collected, if at all, as a general tax
against the city at large, and not as a special assessment. "
Page 210 U. S. 382
"3d. That property in said city not assessed is benefited by the
said pretended improvement, and certain property assessed is not
benefited by said pretended improvement, and other property
assessed is not benefited by said pretended improvement to the
extent of the assessment; that the individual pieces of property in
said district are not benefited to the extent assessed against them
and each of them respectively; that the assessment is arbitrary,
and property assessed in an equal amount is not benefited equally;
that the boundaries of said pretended district were arbitrarily
created without regard to the benefits or any other method of
assessment known to law; that said assessment is outrageously
large."
"4th. That each of the laws and each section thereof under which
the proceedings in said pretended district were attempted to be had
do not confer the authority for such proceedings; that the 1893
city charter was not properly passed, and is not a law of the State
of Colorado, by reason of not properly or at all passing the
legislature; that each of the provisions of said charter under
which said proceedings were attempted are unconstitutional and
violative of fundamental principles of law, the Constitution of the
United States, and the state constitution, or some one or more of
the provisions of one or more of the same."
"5th. Because the pretended notice of assessment is invalid, and
was not published in accordance with the law, and is in fact no
notice at all, because there was and is no valid ordinance creating
said district, because each notice required by the 1893 city
charter to be given, where it was attempted to give such notice,
was insufficient, and was not properly given or properly
published."
"6th. Because of noncompliance by the contractor with his
contract, and failure to complete the work in accordance with the
contract; because the contract for said work was let without right
or authority; because said pretended district is incomplete and the
work under said contract has not been completed in accordance with
said contract; because items too
Page 210 U. S. 383
numerous to mention, which were not a proper charge in the said
assessment, are included therein."
"7th. Because the work was done under pretended grants of
authority contained in pretended laws, which laws were violative of
the Constitution and fundamental laws of the state and Union."
"8th. Because the city had no jurisdiction in the premises. No
petition subscribed by the owners of a majority of the frontage in
the district to be assessed for said improvements was ever obtained
or presented."
"9th. Because of delay by the board of public works in
attempting to let the contract, and because the said pretended
improvement was never properly nor sufficiently petitioned for;
because the contracts were not let nor the work done in accordance
with the petitions, if any, for the work, and because the city had
no jurisdiction in the premises."
"10th. Because, before ordering the pretended improvement, full
details and specifications for the same, permitting and encouraging
competition, and determining the number of installments and time
within which the costs shall be payable, the rate of interest on
unpaid installments, and the district of lands to be assessed,
together with a map showing the approximate amounts to be assessed,
were not adopted by the board of public works before the letting of
the contract for the work and furnishing of material; because
advertisement for 20 days in two daily newspapers of general
circulation, giving notice to the owners of real estate in the
district of the kind of improvements proposed, the number of
installments and time in which payable, rate of interest and extent
of the district, probable cost, and time when a resolution ordering
the improvement would be considered, was not made, either properly
or at all, and, if ever attempted to be made, was not made
according to law or as required by the law or charter."
"11th. Because the attempted advertisements for bids on the
contract attempted to be let were not properly published, and were
published and let, and the proceedings had, if at all,
Page 210 U. S. 384
in such a way as to be prejudicial to the competition of bidders
and to deter bidders, and the completion of the contracts, after
being attempted to be let, was permitted to lag in such a manner as
not to comply with the contract, charter, or laws, and the power to
let the contract attempted to be let was not within the power of
the parties attempting to let the same; because the city council is
or was, by some of the proceedings, deprived of legislative
discretion, and the board of public works and other pretended
bodies given such discretion, which discretion they delegated to
others having no right or power to exercise the same, and executive
functions were conferred on bodies having no right, power, or
authority to exercise the same, and taken away from others to whom
such power was attempted to be granted or given, or who should
properly exercise the same; that judicial power was attempted to be
conferred on the board of public works, so called, and the city
council, and other bodies or pretended bodies not judicial or
quasi-judicial in character, having no right, power, or
authority to exercise the same, and the courts attempted to be
deprived thereof."
"Wherefore, because of the foregoing and numerous other good and
sufficient reasons, the undersigned object and protest against the
passage of the said proposed assessing ordinance."
This certainly was a complaint against an objection to the
proposed assessment. Instead of affording the plaintiffs in error
an opportunity to be heard upon its allegations, the city council,
without notice to them, met as a board of equalization, not in a
stated, but in a specially called, session and, without any
hearing, adopted the following resolution:
"Whereas, complaints have been filed by the various persons and
firms as the owners of real estate included within the Eighth
Avenue Paving District No. 1, of the City of Denver, against the
proposed assessments on said property for the cost of said paving,
the names and description of the real estate respectively owned by
such persons being more particularly described in the various
complaints filed with the city clerk; and"
"Whereas, no complaint or objection has been filed or made
Page 210 U. S. 385
against the apportionment of said assessment made by the board
of public works of the City of Denver, but the complaints and
objections filed deny wholly the right of the city to assess any
district or portion of the assessable property of the City of
Denver; therefore, be it"
"Resolved, by the City Council of the City of Denver, sitting as
a board of equalization, that the apportionments of said assessment
made by said board of public works be, and the same are hereby,
confirmed and approved."
Subsequently, without further notice or hearing, the city
council enacted the ordinance of assessment whose validity is to be
determined in this case. The facts out of which the question on
this assignment arises may be compressed into small compass. The
first step in the assessment proceedings was by the certificate of
the board of public works of the cost of the improvement and a
preliminary apportionment of it. The last step was the enactment of
the assessment ordinance. From beginning to end of the proceedings,
the landowners, although allowed to formulate and file complaints
and objections, were not afforded an opportunity to be heard upon
them. Upon these facts, was there a denial by the State of the due
process of law guaranteed by the Fourteenth Amendment to the
Constitution of the United States?
In the assessment, apportionment, and collection of taxes upon
property within their jurisdiction, the Constitution of the United
States imposes few restrictions upon the states. In the enforcement
of such restrictions as the Constitution does impose, this Court
has regarded substance, and not form. But where the legislature of
a state, instead of fixing the tax itself, commits to some
subordinate body the duty of determining whether, in what amount,
and upon whom it shall be levied, and of making its assessment and
apportionment, due process of law requires that at some stage of
the proceedings, before the tax becomes irrevocably fixed, the
taxpayer shall have an opportunity to be heard, of which he must
have notice, either personal, by publication, or by a law fixing
the time and place
Page 210 U. S. 386
of the hearing.
Hagar v. Reclamation District,
111 U. S. 701;
Kentucky Railroad Tax Cases, 115 U.
S. 321;
Winona & St. Peter Land Co. v.
Minnesota, 159 U. S. 526,
159 U. S. 537;
Lent v. Tillson, 140 U. S. 316;
Glidden v. Harrington, 189 U. S. 255;
Hibben v. Smith, 191 U. S. 310;
Security Trust Co. v. Lexington, 203 U.
S. 323;
Central of Georgia v. Wright,
207 U. S. 127. It
must be remembered that the law of Colorado denies the landowner
the right to object in the courts to the assessment, upon the
ground that the objections are cognizable only by the board of
equalization.
If it is enough that, under such circumstances, an opportunity
is given to submit in writing all objections to and complaints of
the tax to the board, then there was a hearing afforded in the case
at bar. But we think that something more than that, even in
proceedings for taxation, is required by due process of law. Many
requirements essential in strictly judicial proceedings may be
dispensed with in proceedings of this nature. But even here, a
hearing, in its very essence, demands that he who is entitled to it
shall have the right to support his allegations by argument,
however brief, and, if need be, by proof, however informal.
Pittsburgh &c. Railway Co. v. Backus, 154 U.
S. 421,
154 U. S. 426;
Fallbrook Irrigation District v. Bradley, 164 U.
S. 112,
164 U. S. 171
et seq.
It is apparent that such a hearing was denied to the plaintiffs
in error. The denial was by the city council, which, while acting
as a board of equalization, represents the state.
Raymond v.
Chicago Traction Co., 207 U. S. 20. The
assessment was therefore void, and the plaintiffs in error were
entitled to a decree discharging their lands from a lien on account
of it. It is not now necessary to consider the tenth assignment of
error.
Judgment reversed.
THE CHIEF JUSTICE and MR. JUSTICE HOLMES dissent.