[241 U.S. 419, 420] Messrs. I. N. Watson, H. M. Langworthy, Kenneth MaC. De Weese, Edward White, and Elliott M. Jones for plaintiffs in error.
Messrs. Jesse C. Petherbridge, Arthur F. Smith, and Andrew F. Evans for defendant in error.
Mr. Justice Hughes delivered the opinion of the court:
This was a supplemental proceeding to assess certain parcels of land in Kansas City, Missouri, for benefits. The assessments were for the purpose of meeting an unpaid portion of damages which had been awarded for property condemned in widening Sixth street. Judgment for the assessments was entered on the verdict of a jury and was affirmed by the supreme court of Missouri, in banc. 260 Mo. 395, 169 S. W. 62. This writ of error is prosecuted by owners of property thus assessed.
In October, 1909, the common council of Kansas City passed an ordinance providing for the condemnation of property within specified limits, and for the raising of the amount of the award by special assessments against property within a described benefit district, in accordance with article 6 of the city's charter. Proceedings ac- [241 U.S. 419, 421] cordingly were then brought in the municipal court of Kansas City, resulting in an award of $166,299.57 for property taken and in the making of assessments of like amount for benefits. There were over 13,000 different tracts within the benefit district. No appeal was taken from the judgment. The city collected on the assessments about $89,000. It was discovered that the publication of the required notice of the proceeding was defective, and in an appropriate suit in equity, brought by the Union Pacific Railroad Company, a decree was obtained in favor of that company, and of certain interveners, annulling the assessments against their properties; and no appeal was taken from that decree.
Thereupon, Kansas City attempted to repeal the original ordinance, presumably-as the state court suggests-for the purpose of abandoning the proceeding and returning the assessments paid. At the suit of owners of the land condemned-who were entitled to the awards-decree was entered enjoining the city from abandoning the condemnation proceedings. The city then enacted a 'supplemental or curative ordinance,' basing its action on the authority of 231 of article 6 of the city's charter. [241 U.S. 419, 422] 'The object of said sensible charter provision,' it is said by the state court, 'was to afford a remedy when by any error, defect, or omission in condemnation proceedings, assessments made against private property cannot be enforced or collected, or where property in the benefit district is omitted, etc. In such case it was provided that the city may, by ordinance, institute and carry on supplemental proceedings to make a proper assessment against any parcel of property in the benefit district erroneously omitted or erroneously made in the first proceeding, etc.' 260 Mo. p. 406.
Under this ordinance the supplemental proceeding was instituted in the municipal court. The notice required by the charter was given and the plaintiffs in error (with the exception of the Union Depot Bridge & Terminal Railroad Company) appeared. The jury returned a verdict which was 'the same as to the amount of benefits as the verdict returned in the original proceeding.' State ex rel. Graham v. Seehorn, 246 Mo. 541, 552, 151 S. W. 716; see 260 Mo. p. 406. An appeal was taken from the judgment to the circuit court of Jackson county. While [241 U.S. 419, 423] the case was pending in that court, the presiding judge, having announced that he purposed to 'try out the question of the amount of damages awarded to property owners whose property was taken or damaged under the original proceeding as well as the question of assessing benefits over nonpaying properties within the benefit district,' two prohibition suits were brought in the supreme court of the state. The one was brought by owners of property in the benefit district who contended that the municipal court had no jurisdiction of either the original or the supplemental proceedings, and hence that the circuit court had no jurisdiction on appeal. This contention was overruled and the writ denied. State ex rel. Graham v. Seehorn, supra; see 260 Mo. p. 407. The other prohibition suit was brought by the owners of property which was sought to be taken for public use. They urged that there was no provision for an appeal in a supplemental proceeding begun in the municipal court, and that, in any event, the circuit court had no jurisdiction to award damages. The court sustained the right of appeal, but it was held that the verdict and judgment in the original proceedings were valid 'as to those who appeared and accepted them;' that the original proceedings, unappealed from, became res judicata. The jury were not to include in their verdict 'assessments of benefits and damages upon property properly included in the first verdict.' In answer to the contention that property owners in the benefit district were entitled to be heard on the question of the amount to be paid for the property taken in condemnation, the court ruled that, while it was entirely proper as a matter of grace to permit such owners to aid the city in preventing an unduly high valuation of the property condemned, they were not necessary parties in the determination of that issue, and that this question was not open to retrial in the supplemental proceedings where the owners of the property condemned [241 U.S. 419, 424] had acquiesced in the awards. Accordingly, a writ issued prohibiting the circuit court from retrying the question of the amount of damages awarded to the owners of property condemned. State ex rel. Tuller v. Seehorn, 246 Mo. 568, 151 S. W. 724; see 260 Mo. 407-409.
The circuit court then resumed the trial of the appeal in the supplemental proceeding. The plaintiffs in error appearing (with the exception of the Union Depot Bridge Company) challenged the validity of the proceedings under the state law, and each company also claimed protection under the due process and equal protection clauses of the 14th Amendment from any assessment of benefits until it had 'opportunity to be heard upon the amount of damages that shall be awarded to property owners and the benefits assessed against it, as provided by the charter of Kansas City in the original proceedings,' and that it was entitled to notice of those proceedings. The right to retry the amount of the award in condemnation was frequently reiterated during the progress of the cause and denied. It was also unsuccessfully contended that the decree in favor of the Union Pacific Railroad Company, and interveners, annulling the former assessments as to them, was a bar. The court further ruled, over exceptions, that under the decision of the supreme court the jury was concluded from changing the assessment on the property of those owners who had paid under the original proceedings; and a general offer of testimony assailing such assessments was rejected. It appeared that, after deducting from the total awards of damages for property condemned the amount which had already been paid by property owners, there remained a balance of $76, 981.98. Among the instructions given to the jury (and to each of which a general exception was taken) were the following:
Among the instructions refused was one (apparently asked by a party not one of the plaintiffs in error, but in whose exception the others joined) to the effect that the property owner was entitled under the 14th Amendment 'to introduce evidence and be heard upon the questions (a) of the cost of the improvement in question to pay which such benefits are to be assessed, and (b) of what proportion of the total benefit, if any, of said improvement, should be assessed against other property in the benefit district, that upon the plat of which is marked the word 'paid' as well as all other property;' and that, inasmuch as the alleged right had been denied, the jury should not assess any benefit.
The jury rendered a verdict laying assessments upon the properties of the plaintiffs in error, and motions for a new trial were denied. The Union Depot Bridge Company was assessed with two others, jointly, and appeared and objected to the verdict. Thereupon, the court recalled the jurors and directed separate assessments, which were made. The Union Depot Bridge Company asked for an instruction to the effect that a portion of its property had been assessed in the original proceeding, that the assessment had been paid, and that the remainder of the lands were then found not to be benefited and should not be assessed. This instruction was refused. This company also moved for a new trial, insisting that it was deprived of its property without due process of law and denied the equal protection of the laws, in violation of the 14th Amendment. [241 U.S. 419, 427] On appeal the supreme court of the state entered judgment of affirmance, and it is to review that judgment that this writ of error has been sued out.
The extent of the authority conferred upon the city by its charter, the construction of the various provisions of the charter, the validity, scope, and effect under the state law of the ordinances adopted by the city, and the scope and effect of the original and supplemental proceedings, and the rights of the parties thereto, under the state law, are state questions, as to which the decision of the state court is controlling. Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685 , 41 L. ed. 1165, 17 Sup. Ct. Rep. 718; Castillo v. McConnico, 168 U.S. 674, 683 , 42 S. L. ed. 622, 625, 18 Sup. Ct. Rep. 229; King v. Portland, 184 U.S. 61 , 46 L. ed. 431, 22 Sup. Ct. Rep. 290; Willoughby v. Chicago, 235 U.S. 45 , 59 L. ed. 123, 35 Sup. Ct. Rep. 23. So, the ruling as to the effect, with respect to the supplemental proceeding, of the decree in a court of the same state, holding the prior assessments void for want of the required notice, as to the complainant in that suit and certain interveners, does not present a Federal question. Phoenix F. & M. Ins. Co. v. Tennessee, 161 U.S. 174, 185 , 40 S. L. ed. 660, 664, 16 Sup. Ct. Rep. 471.
It is also well settled that an owner of property which may be assessed for benefits in order to pay an award for property condemned is not entitled, by virtue of the 14th Amendment, to insist upon being made a party to the condemnation proceeding, or to be heard with respect to the amount of the award. He may not demand, as a Federal right, that the power of eminent domain shall not be exercised save upon notice to him. Voigt v. Detroit, 184 U.S. 115, 122 , 46 S. L. ed. 459, 462, 22 Sup. Ct. Rep. 337; Goodrich v. Detroit, 184 U.S. 432, 437 , 438 S., 46 L. ed. 627, 630, 631, 22 Sup. Ct. Rep. 397; Londoner v. Denver, 210 U.S. 373, 378 , 52 S. L. ed. 1103, 1109, 28 Sup. Ct. Rep. 708. As well might it be argued, as was suggested in Goodrich v. Detroit, supra, that whenever the city contemplated a public improvement of any description, it would be necessary to give notice to all those who might be taxed to pay for it. The established rule is 'that it is only those whose property is proposed to be taken for a public improvement [241 U.S. 419, 428] that due process of law requires shall have prior notice.' (Ibid.)
Nor is there ground for a distinction because the charter of Kansas City provided a single proceeding, embracing both the proposed condemnation and assessment for benefits, and required notice to the property owners within the benefit district. The question under the 14th Amendment is one of state power, not of state policy; of what the state must accord, not of what it may grant or withhold in its discretion. Castillo v. McConnico, 168 U.S. 674, 683 , 42 S. L. ed. 622, 625, 18 Sup. Ct. Rep. 229; Willoughby v. Chicago, 235 U.S. 45 , 59 L. ed. 123, 35 Sup. Ct. Rep. 23. With respect to neither proceeding, original or supplementary, was it essential to due process of law in making assessments that the assessed owners should be heard on the amount of the awards in condemnation. Nor was there a denial of the equal protection of the laws because in the original proceeding there was such an opportunity, together with a right of appeal. The asserted inequality sprang solely from the fact that certain assessed owners, despite the defective publication of notice, appeared and acquiesced in the proceedings. There is no ground for the charge of a denial of equal protection because some owners were willing to waive defects in procedure and others were not. Differences due to voluntary action and diverse individual choices constantly arise under equal laws. We conclude that the contention based on the refusal to reopen the case as to the damages awarded is wholly without merit.
With respect to the amount of the assessments to pay these damages, it is apparent that the question presented relates solely to the right to insist upon a re-determination of the assessments laid upon the properties of other owners, which those owners had accepted and paid. Under the rulings of the court, none of the plaintiffs in error were assessable except for benefits actually and specially accruing to their respective properties; they were heard as [241 U.S. 419, 429] to these benefits and as to the amount of their own assessments. Their objection as to the matter of apportionment struck at the finality of the other assessments. In the only instance in which it could be said that any right under the Federal Constitution was specially and appropriately set up as to apportionment it was urged that these owners were entitled to be heard upon 'what proportion of the total benefit, if any, of said improvement, should be assessed against other property in the benefit district, that upon the plat of which is marked the word 'paid' as well as all other property;' and because this was not allowed, and the assessments which had been acquiesced in and paid by other owners were held to be final, a peremptory instruction was asked that the jury should assess no benefits. It is apparent that this objection goes directly to the validity of the supplemental proceeding as such, and denies the power of the state to authorize it. It means that the only proceeding that could constitutionally be taken in such a case would be to have a trial de novo as to all the assessments; and thus, where, as in this instance, thousands of tracts are involved, if a defect is found in the publication of the notice in the original proceeding, and a property owner challenges his assessment upon that ground, it would not be sufficient to give him a hearing as to the amount of his own assessment, but he could demand as a constitutional right a re-determination of the assessments of all others.
This contention is inadmissible. It is true that all taxes and assessments are laid by some rule of apportionment. Where the scheme of distribution is palpably arbitrary and constitutes a plain abuse, it may be condemned as violative of the fundamental conceptions of justice embodied in the 14th Amendment. The principles involved in such cases have recently been discussed and need not be restated. Wagner v. Leser, 239 U.S. 207 , 60 L. ed. --, 36 Sup. Ct. Rep. 66; Houck v. Little River Drainage Dist. 239 U.S. 254, 265 , 60 S. L. ed. --, 36 Sup. Ct. Rep. 58; [241 U.S. 419, 430] Myles Salt Co. v. Iberia & St. M. Drainage Dist. 239 U.S. 478, 485 , 60 S. L. ed. --, 36 Sup. Ct. Rep. 204; Gast Realty & Invest. Co. v. Schneider Granite Co. 240 U.S. 55, 58 , 59 S., 60 L. ed. --, 36 Sup. Ct. Rep. 400; Embree v. Kansas City & L. B. Road Dist. 240 U.S. 242, 250 , 251 S., 60 L. ed . --, 36 Sup. Ct. Rep. 317. But the mere fact that there may be inequalities is not enough to invalidate state action. Davidson v. New Orleans, 96 U.S. 97, 105 , 24 S. L. ed. 616, 620; Walston v. Nevin, 128 U.S. 578, 582 , 32 S. L. ed. 544, 546, 9 Sup. Ct. Rep. 192; Fallbrook Irrig. Dist. v. Bradley, 164 U.S. 112, 176 , 177 S., 41 L. ed. 369, 394, 17 Sup. Ct. Rep. 56; Houck v. Little River Drainage Dist. 239 U.S. 478, 485 , 60 S. L. ed. --, 36 Sup. Ct. Rep. 58. Where assessments are made by a political subdivision, a taxing board, or court, according to special benefits, the property owner is entitled to be heard as to the amount of his assessment, and upon all questions properly entering into that determination. 'If the legislature,' as has frequently been stated, 'provides for notice to and hearing of each proprietor, at some stage of the proceedings, upon the question what proportion of the tax shall be assessed upon his land, there is no taking of his property without due process of law.' Spencer v. Merchant, 125 U.S. 345, 355 , 356 S., 31 L. ed. 763, 767, 768, 8 Sup. Ct. Rep. 921; Paulsen v. Portland, 149 U.S. 30, 41 , 37 S. L. ed. 637, 641, 13 Sup. Ct. Rep. 750; Bauman v. Ross, 167 U.S. 548, 590 , 42 S. L. ed. 270, 288, 17 Sup. Ct. Rep. 966; Goodrich v. Detroit, 184 U.S. 432, 437 , 438 S., 46 L. ed. 627, 630, 631, 22 Sup. Ct. Rep. 397. What is meant by his 'proportion of the tax' is the amount which he should be required to pay, or with which his land should be charged. As was said in Fallbrook Irrig. Dist. v. Bradley, 164 U. S. p. 175, 41 L. ed. 394, 17 Sup. Ct. Rep. 56, when it is found that the land of an owner has been duly included within a benefit district, 'the right which he thereafter has is to a hearing upon the question of what is termed the apportionment of the tax, i. e., the amount of the tax which he is to pay.' See also French v. Barber Asphalt Paving Co. 181 U.S. 324, 341 , 45 S. L. ed. 879, 888, 21 Sup. Ct. Rep. 625. It is a very different thing to say that an owner may demand as a constitutional privilege, not simply an inquiry as to the amount of the assessment with which his own property should rightly be charged in the light of all relevant facts, but that he should not be assessed at all unless the assessments of other owners who have paid without [241 U.S. 419, 431] question and are not complaining shall be reopened and redetermined. The 14th Amendment affords no basis for a demand of that sort.
The separate contention of the Union Depot Bridge Company is, as the state court said, virtually one of res judicata. It was insisted that, as a portion of its property was assessed in the original proceeding, and the assessment had been paid, it could not be assessed on other portions in the supplemental proceeding; that it must be concluded that the jury in the original proceeding had found that the other tracts were not benefited. The question whether the first judgment had this effect was a matter of state law; there is nothing in the Federal Constitution to prevent the assessment in the supplemental proceedings of properties omitted from the first proceeding. Phoenix F. & M. Ins. Co. v. Tennessee, supra. The 7th Amendment, invoked in this connection, has no application. Minneapolis & St. L. R. Co. v. Bombolis, decided May 22, 1916 [ 241 U.S. 211 , 60 L. ed . --, 36 Sup. Ct. Rep. 595]. The company appeared in the supplemental proceeding and was heard, and, so far as any Federal question is concerned, does not appear to be in a different case from that of the other property owners.
We find no error in the decision of the Federal questions and the judgment is affirmed.
[ Footnote 1 ] Section 23 is as follows: