ETTOR V. TACOMA, 228 U. S. 148 (1913)

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U.S. Supreme Court

Ettor v. Tacoma, 228 U.S. 148 (1913)

Ettor v. Tacoma

Nos. 68, 69

Argued December 6, 1912

Decided April 7, 1913

228 U.S. 148


In the absence of legislation requiring compensation to be made for damages to abutting owners by change of grade of street, the municipality, being an agent of the state and exercising a governmental power, is not liable for consequential injuries provided it keep within the street and use reasonable care and skill in doing the work.

Under the statutes of the Washington as construed by the courts of that state, this general rule was superseded by legislation which required municipalities to compensate for consequential damages.

A municipality cannot defend a suit for consequential damages on the ground that as the agent of the state it is immune when its only authority to act is that given by the state coupled with an obligation to make compensation.

A state statute giving compensation for consequential damages caused by

Page 228 U. S. 149

change of grades of streets does not merely provide a remedy, but creates a property right; to repeal such a statute so as to affect rights actually obtained thereunder is a deprivation of property without due process of law as guaranteed by the Fourteenth Amendment.

The statute of Washington repealing the former statute which gave a right to consequential damages from change of grade, as construed by the state courts as destroying rights to compensation which had accrued while the earlier act was in effect, amounts to a deprivation of property without due process of law.

Where no private rights have vested, a statute giving benefits under certain conditions may be repealed without violating the contract or due process provisions of the federal Constitution, but the case is different when the right to compensation has actually accrued. Salt Co. v. East Saginaw, 13 Wall. 373, and Wisconsin &c. Railway v. Powers, 191 U.S. 375, distinguished.

57 Wash. 50, 698, reversed.

The facts, which involve the constitutionality under the Fourteenth Amendment of a statute of Washington in regard to damages for changing grade of streets, are stated in the opinion.

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