SHEPARD V. BARRON, 194 U. S. 553 (1904)

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U.S. Supreme Court

Shepard v. Barron, 194 U.S. 553 (1904)

Shepard v. Barron

No. 217

Argued April 14-15, 1904

Decided May 31, 1904

194 U.S. 553


Where a public improvement is completed, and the assessment made at the instance and on the petition of the owners of the property, and pursuant, in form at least, to an act of the legislature of the state, and in strict compliance with its provisions, and with the petition there is an implied contract that the parties at whose request and for whose benefit the work was done, will pay for it in the manner provided for by the act, and after completion of the work, they cannot set up the unconstitutionality of the act to avoid the assessment.

An assessment made under such circumstances does not deprive the owners of their property without due process of law nor take their property without just compensation.

There are circumstances under which a party who is illegally assessed may be held to have waived his remedy by conduct which renders it unjust and inequitable to others that he should be allowed to complain of the illegality.

An agreement that work for which their property is assessed was legally done and that the improvement was legally constructed, executed by property owners for the purpose of obtaining a market for the sale of bonds by the municipality to enable it to make the improvement in effect provides that the lien of the assessment to pay the bonds is valid, and they are estopped from asserting the unconstitutionality of the law under which the assessment is made.

This bill was filed in the Circuit Court of the United States for the Southern District of Ohio against the defendant, as the treasurer of the County of Franklin, in the State of Ohio, to enjoin him from taking any proceedings towards the collection of the balance of an assessment for a local improvement upon land belonging to the appellants near the City of Columbus, in the State of Ohio, because, among other grounds alleged in the bill, the assessment to pay for the improvement as provided for in the act was to be made by the foot front, and not in proportion to the special benefit which might result from the improvement to the property assessed, and on this ground it

Page 194 U. S. 554

was averred that the act violated the Fifth Amendment, and also section 1 of the Fourteenth Amendment to the federal Constitution. The bill was dismissed by the circuit court, and from the judgment of dismissal the plaintiffs have appealed directly to this Court because the law of Ohio referred to in the bill is claimed to be in contravention of the federal Constitution. Act of 1891, sec. 5, U.S.Comp.Stat. 549.

The original plaintiffs were partners doing business under the name of the Alum Creek Ice Company, and as such were the owners of the land described in the bill, and soon after the commencement of this suit, one of the plaintiffs sold out his interest in the property, including the land, and his grantees were substituted as plaintiffs in his stead, and assumed his liabilities with regard to the land. Hereinafter they will all be described as the plaintiffs, as if they had all originally been parties to the suit, and had signed the papers and made the representations hereinafter mentioned.

The answer denied the averments of the bill, and also set up facts which, as defendant insisted, precluded the plaintiffs from obtaining relief by injunction, as prayed for in the bill.

Upon the trial, it appeared that the plaintiffs and others were separate owners of distinct portions of a tract of land adjoining the City of Columbus, Ohio, and bounded by the Columbus and Granville turnpike road, which was a public highway leading to and from the City of Columbus. The tract had a frontage on the road of 9,615.38 feet, of which the plaintiffs owned 1,111 feet. On March 26, 1890, an act was passed by the Ohio Legislature, 87 Ohio Laws 113, which authorized the county commissioners in counties in which there were situate cities of the first grade of the second class to improve roads extending from such cities, and other roads and streets in certain cases. The act provided for an assessment by the foot front on the adjoining land in order to pay the cost of the improvement. Immediately upon the passage of the act, and on or about March 31, 1890, the owners of the tract, including the plaintiffs, who were owners of a part thereof, inaugurated proceedings

Page 194 U. S. 555

under the act, and presented a petition to the county commissioners asking for the improvement of the road through their property, as provided for in the act. The petition has been lost, but the evidence shows it was signed in behalf of all the owners of the land (including the plaintiffs) fronting or abutting on that part of the road proposed to be improved. The persons who signed this petition and subsequently other papers on behalf of plaintiffs were duly authorized so to do. The petition was granted, and the commissioners made an order to that effect, and for the execution of the work at an expense of $7.25 per front foot. On or about August 1, 1890, a contract was entered into for the construction of the improvement, and between that time and October 16, 1891, the improvement was completed. An assessment was, on October 15, 1891, laid upon the whole tract to pay for the cost of the improvement, which amounted to $11.25 per front foot, thus largely exceeding the amount originally contemplated as such cost. This cost was thus enhanced by reason of changes of plans regarding the improvement, made from time to time as the work progressed, and which were assented to or asked for by the land owners, including the plaintiffs.

In order to pay the cash for the cost of this improvement, bonds were issued and sold by the county commissioners as provided for in the act, amounting to $110,000, in two issues, the first of $50,000 and the second of $60,000.

The total amount of the assessment on the plaintiffs' land, assessed per front foot, as provided for in the act, was $12,812.61, which, as the plaintiffs insist, largely exceeded the special benefit arising from the improvement, and would result, if enforced to its full extent, in the confiscation of plaintiffs' property. The bonds not having been paid, an action was brought on them against the county commissioners in the federal circuit court in Ohio, and judgment recovered by the bondholders, which was affirmed by the United States circuit court of appeals, 119 F. 36, without, however, passing upon the validity of the assessment now before this

Page 194 U. S. 556

Court (p. 48). The act under which the improvement is made is set forth in full in the above report.

After the plaintiffs had paid seven annual installments of the assessment, each installment amounting to $1,258.61, and the total being $8,810.27, there remained a balance due on the assessment of $4,002.34, and this bill was filed on June 12, 1899, for the purpose of enjoining the collection of the balance remaining unpaid on the assessment, on the grounds already stated.

Immediately after the contract for doing the work of improvement was entered into between the county commissioners and the contractor, and in compliance with the provisions of the act (section 13), the commissioners designated two of the owners of the abutting property, who, together with the county surveyor, were to constitute a board, which was authorized to elect a superintendent to see that the contract was performed in accordance to its true intent, and that all orders of the county surveyor in furtherance thereof were obeyed. Mr. Shepard, one of the plaintiffs, was designated as a member of the board, and acted as such, with another landowner and the county surveyor, and elected a superintendent, as provided for in the act.

Mr. Shepard was also frequently present during the progress of the work, and knew of the alterations in the work as they were subsequently and from time to time made. He was familiar with the law under which the action of the county commissioners was invoked, and knew that it provided for an assessment upon the abutting property by the front foot for the payment of the cost of the improvement.

During the progress of the work, and on June 29, 1891, the agent of the Columbus Land Association (one of the owners of a portion of the tract) made a written proposal to the commissioners in relation to the improvement in question, and agreed that the land association would secure and pay the entire expense in removing the earth upon the circle in East Broad Street, and in beautifying and adorning the circle, upon

Page 194 U. S. 557

the condition that the street around the circle should be completed and paved in accordance with the plat, order, and contract mentioned. The plaintiffs, acting under the name of the Alum Creek Ice Company, together with the other owners of real estate abutting upon these improvements, addressed a written communication to the county commissioners in connection with the foregoing proposal of the land company, in which they spoke of the improvements "now being made under proceedings by and before this board of county commissioners of Franklin County," and in which they also said that they

"hereby withdraw all objection to said improvement and the assessment of their said real estate therefor on condition that the foregoing agreement shall be kept by said Columbus Land Association."

The offer of the company was accepted, and there is no claim made that the company did not fulfill the agreement.

On September 2, 1891, the owners of the tract (plaintiffs among them) petitioned the commissioners to cancel the contract, with the assent of the contractor, for sodding the sides of the improved roadways, and gave as a reason therefor that a number of the property owners had informed the contractor that they would rather have grass seed sown thereon. The petitioners concluded:

"We therefore petition that you cancel the above mentioned contract, and that each one, for their respective frontage upon said street, will see to it that grass seed is sown upon said sideways of East Broad Street this fall, and take upon them selves the care and charge of the same."

The contract was cancelled, as asked for, with the consent of the contractor.

There was also presented to the commissioners a communication signed by the owners of the land, including the plaintiffs, asking the commissioners to cause all bonds issued by them for the expense of the improvement to be made for a period of twenty years from the date thereof,

"and if you can extend the time to twenty years for the bonds already sold, the extension of the time at which they would mature would be

Page 194 U. S. 558

satisfactory to the undersigned, all of which we respectfully petition for."

There was also signed by the plaintiffs Shepard and McLeish, among others, as members of the board appointed under the act (section 13), a resolution,

"That the board for the improvement of said street hereby respectfully requests the county commissioners to do all in their power to carry out the prayer of said petition,"

the petition being to the board of county commissioners to take steps to have the bonds for the improvement extended so as to run twenty years.

There was also signed by all the landowners, including the plaintiffs, a communication, which, on account of its recitals and statement, is set forth at length:

"Whereas, on the 31st day of March, 1890, a petition signed by the subscribers hereto was by us presented to the Board of County Commissioners of Franklin County, Ohio, praying for the improvement of the extension of East Broad Street, in this county, beginning at the bridge across Alum Creek on said street and extending eastwardly therefrom to the Cassady Road, which said portion of said street lies in Marion Township, said county, which said improvement was in said petition prayed to be made under the provisions of an act of the General Assembly of Ohio, entitled"

"An Act to Authorize County Commissioners in Counties in Which There Are Situated Cities of the First Grade of the Second Class, to Improve Roads Extending from Such Cities, and Other Roads or Streets in Certain cases. Passed March 26, 1890."

"Which said petition stated with what material said street should be paved and what provisions should be made for sidewalks, gutters, and other passages for carrying off the water, and between what points said street was to be improved, and the kind of material of a permanent character said petitioners desired used in said improvement, and whereas said petition was signed by all the persons owning property abutting upon the portion of said street in said petition asked to be improved, said petition stating the number of feet between the termini of said improvement; "

Page 194 U. S. 559

"And whereas, such proceedings were had by said board of county commissioners on said petition and in accordance with said act of the general assembly that the prayer of said petition was granted and said improvement made in accordance with the prayer of said petition; and"

"Whereas said original petition as well as other papers relating to said improvement have been lost or mislaid:"

"Now, in consideration of said improvement, and in order that the bonds to be issued to pay for said improvement may not lie under suspicion, or remain unsold by reason of the absence or loss of said original papers,"

"We hereby agree that such petition hereinbefore recited was filed, signed by us as herein stated, and that we will not set up as a defense against any assessment upon our said property abutting upon said improvement for the payment of bonds issued on account thereof any informality arising from the absence or loss of any of said papers, but agree that said improvement was legally made and constructed."

This paper was signed before the bonds, spoken of therein, were issued by the commissioners. It was required by the proposed purchaser of the bonds before they were taken and paid for. After the paper was signed, the county commissioners thereupon issued the bonds, and delivered them to the Ohio National Bank of Columbus as agents for the purchasers.

After the improvements were completed, the plaintiffs, in connection with other property owners, signed a petition to the county commissioners to lay sewer pipe (a 15 and a 24-inch pipe), and the petition provided:

"The expense of said work to be assessed against the respective property on the street, the same as other expenses for making said improvement are levied and paid."

This is claimed to be a recognition of the assessment after the improvement had been made, and after the landowners knew what it was, of their willingness to be still further assessed to effect a complete work.

Another paper, containing somewhat more in detail the

Page 194 U. S. 560

alleged facts regarding the improvement, and ending with the statement,

"Said improvement has been, and is now being, legally made and constructed, and we hereby request that you execute and issue such further amount of bonds as shall be necessary to pay the cost of improvement,"

and purporting to be signed by the plaintiffs, among others, was offered (though it does not appear to have been received) in evidence. It was objected to by the plaintiffs on the ground that there was no proof that the paper had been signed by the plaintiffs, and that, if the paper was a copy of another paper of similar import, the original was already in evidence. The record does not disclose what was the decision upon the objection thus made. The paper, it was stipulated between the parties, was a copy of the county commissioners' record of Franklin County, Ohio. A motion was also subsequently made to suppress this testimony, but no decision of the motion is disclosed by the record.

During the making of the improvement, and for some time thereafter, all parties assumed the act of 1890, under which the improvement was made, was constitutional.

The court below, upon all the evidence, held that it would consider but one matter of defense -- that of estoppel -- and held that it was sufficiently made out, and accordingly dismissed the bill.

Page 194 U. S. 564

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