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U.S. Supreme Court

French v. Barber Asphalt Paving Co., 181 U.S. 324 (1901)

French v. Barber Asphalt Paving Company

No. 498

Argued February 25-27, 1901

Decided April 29, 1901

181 U.S. 324


In this case, the court proceeds on the assumption that the legal import of the phrase "due process of law" is the same both in the Fifth and in the Fourteenth Amendments to the Constitution of the United States, and that it cannot be supposed that it was intended by the Fourteenth Amendment to impose on the states, when exercising their powers of taxation, any more rigid or stricter curb than that imposed on the federal government by the Fifth Amendment in a similar exercise of power.

It was not the intention of the Fourteenth Amendment to subvert the systems of the states pertaining to general and special taxation: that amendment legitimately operates to extend to the citizens and residents of the states the same protection against arbitrary state legislation affecting life, liberty, and property as is afforded by the Fifth Amendment against similar legislation by Congress, and the federal courts ought not to interfere when what is complained of is the enforcement of the settled laws of the state, applicable to all persons in like circumstances and conditions, but only when there is some abuse of law amounting to confiscation of property or deprivation of personal rights.

The conclusions reached by this Court in many cases cited and summarized by the Court in its opinion are thus stated by two writers, (Cooley and Dillon) whose views this Court adopts:

"The major part of the cost of a local work is sometimes collected by general tax, while a smaller portion is levied upon the estates specially benefited. The major part is sometimes assessed on estates benefited, while the general public is taxed a smaller portion in consideration of a smaller participation in the benefits. The whole cost in other cases is levied on lands in the immediate vicinity of the work. In a constitutional point of view, either of these methods is admissible, and one may sometimes be just and another at other times. In other cases it may be deemed reasonable to make the whole cost a general charge, and levy no special assessment whatever. The question is legislative, and, like all legislative questions, may be decided erroneously, but it is reasonable to expect that, with such latitude of choice, the tax will be more just and equal than it would be were the legislature required to levy it by one inflexible and arbitrary rule."

"The courts are very generally agreed that the authority to require the property specially benefited to bear the expense of local improvements is a branch of the taxing power, or included within it. . . . Whether the expense of making such improvements shall be paid out of the general

Page 181 U. S. 325

treasury or be assessed upon the abutting or other property specially benefited, and if in the latter mode, whether the assessment shall be upon all property found to be benefited or alone upon the abuttors according to frontage or according to the area of their lots, is, according to the present weight of authority, considered to be a question of legislative expediency."

Norwood v. Baker, 172 U. S. 269, considered and held not to be inconsistent with these views.

This was a suit instituted in the Circuit Court of Jackson County, Missouri, by the Barber Asphalt Paving Company, a corporation whose business it was to construct pavements composed of asphalt, against Margaret French and others, owners of lots abutting on Forest Avenue in Kansas City, for the purpose of enforcing the lien of a tax bill issued by that city in part payment of the cost of paving said avenue.

The work was done conformably to the requirements of the Kansas City Charter, by the adoption of a resolution by the common council of the city declaring the work of paving the street, and with a pavement of a defined character, to be necessary, which resolution was first recommended by the board of public works of the city. This resolution was thereupon published for ten days in the newspaper doing the city printing. Thereafter the owners of a majority of front feet on that part of the street to be improved had the right, under the charter, within thirty days after the first day of the publication of the resolution, to file a remonstrance with the city clerk against the proposed improvement, and thereby to divest the common council of the power to make the improvement, and such property owners had the right by filing within the same period a petition so to do, to have such street improved with a different kind of material or in a different manner from that specified in such resolution. In this instance, neither such a remonstrance nor petition was filed, and the common council, upon the recommendation of the board of public works, enacted an ordinance requiring the construction of the pavement. The charter requires that a contract for such work shall be let to the lowest and best bidder. Thereupon bids for the work were duly advertised for, and, the plaintiff company being the lowest and best chanrobles.com-red

Page 181 U. S. 326

bidder therefor, a contract was, on July 31, 1894, entered into between Kansas City and the plaintiff for the construction of said pavement.

The contract expressly provided that the work should be paid for by the issuance of special tax bills, according to the provisions of the Kansas City Charter, and that the city should not, in any event, be liable for or on account of the work. The cost of the pavement was apportioned and charged against the lots fronting thereon according to the method prescribed by the charter, which is that the total cost of the work shall be apportioned and charged against the lands abutting thereon according to the frontage of the several lots or tracts of land abutting on the improvement. The charge against each lot or tract of land was evidenced by a tax bill. The tax bill representing the assessment against each lot was, by the charter, made a lien upon the tract of land against which it was issued, and was prima facie evidence of the validity of the charge represented by it. Such lien can be enforced only by suit in a court of competent jurisdiction against the owners of the land charged. No personal judgment was authorized to be rendered against the owner of the land. The right was expressly conferred on the owner of reducing the amount of the recovery by pleading and proving any mistake or error in the amount of the bill, or that the work was not done in a good and workmanlike manner.

The defendants pleaded and contended that the contract offered in evidence was a contract to construct the pavement and maintain and keep the street in repair for five years, and was contrary to the Charter of Kansas City, void, and of no effect, and that the Charter of Kansas City purports to authorize the paving of streets and to authorize special tax bills therefor, charging the cost thereof on the abutting property according to the frontage, without reference to any benefits to the property on which the charge was made and the special tax bills levied, and that such method of apportioning and charging the cost of the pavement was contrary to and in violation of the Fourteenth Amendment to the Constitution of the United States.

The judgment of the Circuit Court of Jackson County was for the plaintiff company for the amount due on the tax bill, and chanrobles.com-red

Page 181 U. S. 327

for the enforcement of the lien. From this judgment, an appeal was taken to the Supreme Court of Missouri, and on November 13, 1900, the judgment of the circuit court was affirmed, and thereupon a writ of error from this Court was allowed.


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