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by the ordinance. Properly construed, we think this ordinance shows an agreement upon the part of the company to furnish water to the inhabitants of the city at not exceeding certain maximum rates, and to the city itself, upon terms to be agreed upon, made definite, as far as the city was concerned, for the term of five years. As thus interpreted we do not find anything in this contract that prevents the city, certainly after the expiration of five years, from constructing its own plant. It has not specifically bound itself not so to do, and, as has been frequently held in this court, nothing is to be taken against the public by implication. Hamilton Gaslight & Coke Co. v. Hamilton, 146 U. S. 258, 36 L. ed. 963, 13 Sup. Ct. Rep. 90; Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685, 41 L. ed. 1165, 17 Sup. Ct. Rep. 718, and cases cited in the opinion. Had it been intended to exclude the city from exercising the privilege of establishing its own plant, such purpose could have been expressed by apt words, as was the case in Walla Walla v. Walla Walla Co. 172 U. S. 1, 43 L. ed. 341, 19 Sup. Ct. Rep. 77. It is doubtless true that the erection of such a plant by the city will render the property of the water company less valuable, and perhaps, unprofitable; but if it was intended to prevent such competition, a right to do so should not have been left to argument or implication, but made certain by the terms of the contract. The right to tax within certain limits to procure a supply of water for the municipality, which shall be owned and controlled by the city, is authorized by the Constitution of Montana, article 13, § 6. Paragraph 4800 of the Political Code of Montana provides for the carrying into effect of this constitutional power to tax for a system of waterworks to be owned and controlled by the municipality. The feature of the law requiring the purchase of existing waterworks instead of building an independent plant by the city was held unconstitutional by the supreme court of Montana in Helena Consol. Water Co. v. Steele, 20 Mont. 1, 37 L. R. A. 412, 49 Pac. 382.

company as a taxpayer; and it is claimed that the city had no right to acquire a water supply and build its waterworks except by acquiring the plant of the company.

In the findings of fact it was expressly stipulated:

"That the city of Helena contemplates and intends to do all acts and things necessary to secure a water supply and system to be owned and controlled by the said city of Helena, and that it contemplates and intends to raise funds and revenue therefor in the manner provided by law, and to use the same for said purpose, and to furnish and supply the city of Helena and the inhabitants thereof with water from its said plant, and that it contemplates and intends to purchase and secure a sufficient quantity of water for said purpose, and that complainant does not obtain any of its water supply from either Beaver, McClellen, or Prickly Pear creeks.

"That the ordinances Nos. 467 and 483, mentioned in paragraph 27 of the complainant's bill of complaint, were duly passed and adopted and approved, and that unless said defendant, the city of Helena, is enjoined and restrained from acquiring a water supply, plant, and system, it will proceed to acquire the same under said ordinances or such others as are necessary for said purpose, as hereinbefore stated, and will engage in furnishing the said defendant, the city of Helena, and its inhabitants, with water, suitable and proper for its use, and that to do so will depreciate the value of complainant's franchise and property, as stated in paragraph 28 of the complaint, but that no injury of which complainant can complain will result therefrom if defendant city has the rights claimed by it.. That the revenue for said purpose will be created and raised by borrowing money or raising funds within the limit of indebtedness, as heretofore or hereafter to be extended, in accordance with the requirements of the Constitution and provisions of the statutes of the state of Montana in that behalf, unless it shall be adjudged that it has no legal or equitable right to do so, on account of the facts and admission hereinbefore stated and made."

The privilege of building other works was, in the absence of some binding contract forbidding the exercise of the power, clearly We agree with the circuit court of apwithin the city's constitutional and statu-peals that, by this stipulation, the controtory rights. We cannot find that the city has precluded itself from exercising this right by anything shown in this case. This conclusion renders it unnecessary to decide whether the city's right to construct a plant of its own was expressly saved in § 3 of the ordinance reserving the right to construct and maintain "sewer work, or other works of a public nature."

versy was narrowed to the question of the right of the city to erect and maintain an independent plant of its own, in view of the alleged contract rights of the complainant. For that purpose, if it has the right so to do, it is conceded "it contemplates to raise funds and revenues therefor in the manner provided by law," and will raise revenues within the limits of indebtedness authorized

This action is also brought by the water by the Constitution and laws of Montana.

This concession renders it unnecessary to notice the allegations of the complaint as to the right to tax for the purpose of erecting such works, or the alleged invalidity of any method of acquiring waterworks for the city except by purchase from the complain

ant.

Judgment affirmed.

(195 U. S. 351)

CITY OF SEATTLE, Appt.,

v.

Mr. Justice Holmes delivered the opinion of the court:

This is an appeal from a decree of the circuit court, declaring an assessment upon the plaintiff's land void under the 14th Amendment, and enjoining the city against enforcing the same. The facts are these: Weller street, in Seattle, runs east from Elliott bay, and formerly stopped at the east line of Maynard's donation claim. The land now belonging to the appellee, the plaintiff below, is 100 acres to the east of that line, extending to the line of the Jack

DANIEL KELLEHER, Administrator of son street addition.
Administrator of son street addition. Weller street, if ex-
John W. Thompson, Deceased.

Constitutional law-due process of law in assessments for public improvements-reassessments-bona fide purchaser.

Assessing by the frontage rule the entire cost of a street extension, including a charge for planking, is not so manifestly unfair to an abutting owner whose property lies some distance beyond the point where the planking stopped as to render the assessment void as a denial of due process of law.

tended eastward, would run through the middle of this land for 2,500 feet. While this land belonged to one Hill, in 1889, he petitioned that Weller street be extended and graded to the Jackson street addition line, and he submitted to the city council, and circulated, although he did not record, plans showing the extension, with his land on the two sides of it divided into lots and blocks. The plan was approved, and in 1890 the city passed an ordinance that Weller street be graded from the beginning to Jackson street addition, and that sidewalks be constructed on both sides of it, coextensive with the grade. Ordinance No. 1285. The street was graded, and, according to the testimony, had to be cut and filled almost continuously. It also was planked for some distance, but the planking stopped about 1,000 feet before reaching Hill's tract. Then an assessment was levied, but this was held void. The next things that happened were a sale of Hill's land and a mortgage of it A charter provision that the cost of plank- in January, 1892, to the appellee, which ing is to be paid out of the general taxes does later was foreclosed. The appellee, who not prevent a later special assessment there-lived out of the state, alleges that he was for upon the owners of property abutting on a local improvement, in the carrying out of ignorant of the submission of the plan by

Including in a reassessment for the cost of a street extension a charge for certain work which was not authorized by the ordinance ordering the improvement is not a denial of due process of law to a property owner affected thereby, where the municipality has done or adopted the work, and presumably has paid for it.

3. Due process of law is not denied by a reassessment for the cost of a street extension because it includes a charge for work which, when done, could not be included in a local

assessment.

which such planking was done.

5. The doctrine respecting bona fide purchasers for value cannot be invoked to prevent the enforcement of the lien of a reassessment for a local improvement by one who purchased the property affected after the original attempt to assess had been declared void, and

before the new assessment was authorized.

Hill.

On March 9, 1893, an act was approved authorizing a new assessment, when the old one had been declared void, upon the lands benefited, to the extent of their proportionate part of the expense of the improvement, based upon its actual value at the time of its completion, and having reference to the benefits received. Notice by publication of a time for hearing objections was Argued October 28, 1904. Decided November provided for, with an appeal to the courts. Laws of 1893, chap. 95. When the improvePPEAL from the Circuit Court of the ment in question was ordered, by the charter

[No. 29.]

28, 1904.

A United States for the District of Wash- of Seattle the planking was to be paid for

ington to review a decree enjoining the enforcement of an assessment for a local improvement. Reversed and remanded for further proceedings.

out of the general taxes. Laws of 18851886, pp. 238. 241, § 7. The special assessment for the other elements. according to the assessed value of the land, could be imposed upon the abutting property to 128 feet back from the street. This was modified by a new charter, adopted later in 1890, and Messrs. Frederick Bausman, Daniel still in force. Under the latter the assessKelleher, and G. Meade Emory for appellee.ment was to be by the front foot, with differ.

The facts are stated in the opinion. Messrs. Mitchell Gilliam and Walter Fulton for appellant.

ent percentages for four parallel subdivi- | authorize the creation of, special taxing dissions at successive distances from the street tricts, and to charge the cost of a local imup to 120 feet. It was to be for the costs of provement upon the property in such a dis: the improvement. To carry out the plan, trict by frontage. Webster v. Fargo, 181 U. local improvement districts were to be estab- S. 394, 45 L. ed. 912, 21 Sup. Ct. Rep. 623; lished, including all the property within the French v. Barber Asphalt Paving Co. 181 termini of the improvement, and not more U. S. 324, 45 L. ed. 879, 21 Sup. Ct. Rep. than 120 feet on each side of the margin. 625; McNamee v. Tacoma, 24 Wash. 591, Reassessments were authorized. In pursu- 595, 64 Pac. 791; Cooley, Const. Lim. 7th ance of the charter an ordinance was adopted. 729. The only question of principle, ed by the city, providing the manner in therefore, raised by the inclusion of the which the local assessment should be made. planking in the sum of which the plaintiff Ordinance No. 2085. was to pay his share, is whether it was manifestly unfair in this particular case. Taken by itself it looks like an unwarrantable attempt to make one man pay for another man's convenience.

In this state of the ordinances and laws a reassessment of the whole cost of the improvement was ordered in January, 1894, in conformity with the act of 1893, the new charter, and the ordinance No. 2085. Ordinance No. 3199. The proper steps were taken and the assessment was confirmed on March 5, 1894. Ordinance No. 3267. By this assessment the whole cost of the improvement, $35,620.60, was levied on the abutting land, and $14,262.68 was fixed as the plaintiff's share. It is alleged that he thus is charged 44 per cent under the present plan, whereas under the one in force when the improvement was made he would have been charged only 32 per cent. It also is alleged that, being absent from the state, he did not know of the reassessment proceedings until they were concluded.

The bill disputed, among other things, that the prolongation of Weller street through the plaintiff's land ever had been dedicated as a street. But, in view of the assumption by the circuit court that the dedication was made out, and the statement by it that the point had been decided by the supreme court of the state, this objection, if open, very properly was not pressed before us. See Seattle v Hill, 23 Wash. 92, 62 Pac. 446. Therefore we have not gone into details upon that part of the case. We see no cause to doubt that the circuit court was right. The main ground of argument is that the planking could not be included in the assessment. The reasons, as summed up by the circuit court, are that the law in force at the time of doing the work did not authorize a charge for planking upon the abutting property, that the ordinance No. 1285, ordering the improvement, did not authorize any planking, that the city could assess only the land abutting on the improvement, and the plaintiff's land was far away from the planking, and that such an assessment of the whole cost, including the planking, on the property on Weller street, is absolutely unfair as to the plaintiff's land.

A general attack upon the statute of 1893 is not attempted. It was within the power of the legislature to create, or to

On the other hand, so far as the work was similar in character throughout the street, we are of opinion that the improvement might be regarded as one. Webster v. Fargo, 181 U. S. 394, 45 L. ed. 912, 21 Sup. Ct. Rep. 623. See Lincoln v. Street Comrs. 176 Mass. 210, 212, 57 N. E. 356. And if this be admitted we cannot say that the assessing board might not have been warranted in thinking that substantial justice was done. There were many cuts and fills made in grading the road. So far as appears, the heaviest work may have been done on the plaintiff's land, which seems to have been the summit of an ascent. Improvement of one sort may have been the greatest there, while that of a different kind, needed where the travel was, was at the other end of the street. It is true that the circuit judge considered that there was manifest injustice in assessing the plaintiff's land, which was empty and unimproved, by the front foot at the same rate as the improved land lower down and nearer to the bay, and that his opinion naturally carries weight, from his probable acquaintance with the condition of the place. But we do not find a sufficient warrant for it on the record. We must consider how things looked at the time. The owner of the land desired the improvements, if carried out as he wished. The extension of the' street helped to bring his land into the market. It was more likely to benefit him than those who were lower down. We cannot invalidate the assessment because the speculation has failed. Assuming, without deciding, that the question is open to the plaintiff in this proceeding, we are of opinion that the record does not justify interference by injunction on the ground that the assessment was manifestly unfair.

The answer to the other objections may be made in few words. If, as is said, planking was not authorized under the word "sidewalks" in ordinance No. 1285, the city has done or adopted the work, and presumably has paid for it. At the end the benefit was

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tax by buying without notice. See Tallman v. Janesville, 17 Wis. 71, 76; Cooley, Taxn. 3d ed. 527, 528. Indeed, he cannot buy without notice, since the liability is one of the notorious incidents of social life. In this case the road was cut through the plaintiff's land, and, if he had looked, was visible upon the ground. Whether it had been paid for was for him to inquire. The history of what had happened would have suggested that it was not improbable that sooner or later a payment must be made.

Decree reversed.

there, on the ground, at the city's expense. A man cannot get rid of his liability to a
The principles of taxation are not those of
contract. A special assessment may be |
levied upon an executed consideration, that
is to say, for a public work already done.
Bellows v. Weeks, 41 Vt. 590, 599, 600;
Mills v. Charleton, 29 Wis. 400, 413, 9 Am.
Rep. 578; Hall v. Street Comrs. 177 Mass.
434, 439, 59 N. E. 68. If this were not so it
might be hard to justify reassessments. See
Norwood v. Baker, 172 U. S. 269, 293, 43 L.
ed. 443, 452, 19 Sup. Ct. Rep. 187; Williams
v. Albany, 122 U. S. 154, 30 L. ed. 1088, 7
Sup. Ct. Rep. 1244; Frederick v. Seattle, 13
Wash. 428, 43 Pac. 364; Cline v. Seattle, 13
Wash. 444, 43 Pac. 367; Bacon v. Seattle, 15
Wash. 701, 47 Pac. 1102; Cooley, Taxn. 3d
ed. 1280. The same answer is sufficient if it
be true that when the work was done the
cost of planking could not be included in the
special assessment, which again depends on
the meaning of the words "sidewalk" and
"pave" in the old charter, § 8, taken with
the special provision for planking in § 7.
Laws of 1885-1886, pp. 238, 241. The
charge of planking on the general taxes was
not a contract with the landowners, and no
more prevented a special assessment being F. G. EVANS, Claimant of the British
authorized for it later than silence of the
laws at the same time as to how it should be

paid for would have. In either case the leg-
islature could do as it thought best. Of
course, it does not matter that this is called
a reassessment. A reassessment may be a
new assessment. Whatever the legislature
could authorize if it were ordering an assess-
ment for the first time it equally could au-
thorize, notwithstanding a previous invalid
attempt to assess. The previous attempt
left the city free "to take such steps as were
within its power to take, either under exist-
ing statutes, or under any authority that
might thereafter be conferred upon it, to
make a new assessment upon the plaintiff's
abutting property" in any constitutional
way.

On January 3, 1905, Mr. Justice Holmes announced that the decree of November 28, 1904, was modified by striking out the order to dismiss the bill, and by remanding the cause for further proceedings in accordance with the opinion.

Mr. Justice Harlan and Mr. Justice Brown dissent.

(195 U. S. 361)

UNITED STATES, Appt.,

v.

Steamship "Blackheath."

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PPEAL from the District Court of the

about Norwood v. Baker, 172 U. S. 269, 293, A United States for the Southern District

43 L. ed. 443, 452, 19 Sup. Ct. Rep. 187, 196;
McNamee v. Tacoma, 24 Wash. 591, 64 Pac.
791; Annie Wright Seminary v. Tacoma, 23
Wash. 109, 62 Pac. 444.

of Alabama to review a decree dismissing,
for want of jurisdiction, a libel in rem
against a vessel for negligently running into
and destroying a beacon. Reversed.

See same case below, 122 Fed. 112.
The facts are stated in the opinion.
Assistant Attorney General McReynolds
for appellant.

Messrs. Benjamin Carter and R. H.
Clarke for appellee.

Mr. Justice Holmes delivered the opinion of the court:

We think it unnecessary to consider other questions on the part of the case that we have dealt with. We have said enough in our opinion to show that the enforcement of the assessment lien could not be prevented by the original owner. It is urged, however, that a different rule could be applied in favor of one who purchased the land under the circumstances stated above. But the attempt to liken taxation, whether general or This is an appeal from the district court special, to the enforcement of a vendor's on the question of jurisdiction, which is cerlien, and thus to introduce the doctrine con- tified. The case is a libel in rem against a cerning bona fide purchasers for value, rests British vessel for the destruction of a beaon a fallacy similar to that which we have con,-Number 7, Mobile ship-channel lights, mentioned above, which would deny the-caused by the alleged negligent running right to tax upon an executed consideration. into the beacon by the vessel. The beacon

stood 15 or 20 feet from the channel of Mo- | Co. 21 Wall. 389, 22 L. ed. 619; Panama R. bile river or bay, in water 12 or 15 feet deep, and was built on piles driven firmly into the bottom. There is no question that it was attached to the realty, and that it was a part of it by the ordinary criteria of the common law. On this ground the district court declined jurisdiction, and dismissed the libel. The Blackheath, 122 Fed. 112.

In The Plymouth, 3 Wall. 20, sub nom. Hough v. Western Transp. Co. 18 L. ed. 125, where a libel was brought by the owners of a wharf burned by a fire negligently started on a vessel, the jurisdiction was denied by this court. See also Ex parte Phenix Ins. Co. 118 U. S. 610, 30 L. ed. 274, 7 Sup. Ct. Rep. 25. In two later cases there are dicta denying the jurisdiction equally when a building on shore is damaged by a vessel running into it. Johnson v. Chicago & P. Elevator Co. 119 U. S. 388, 30 L. ed. 447, 7 Sup. Ct. Rep. 254; Homer Ramsdell Transp. Co. v. La Compagnie Générale Transatlantique, 182 U. S. 406, 411, 45 L. ed. 1155, 1159, 21 Sup. Ct. Rep. 831. And there are a number of decisions of district and other courts since The Plymouth, which more or less accord with the conclusion of the court below. See note to Campbell v. H. Hackfeld & Co. 62 C. C. A. 287–290. It would be simple, if simplicity were the only thing to be considered, to confine the admiralty jurisdiction, in respect of damage to property, to damage done to property afloat. That distinction sounds like a logical consequence of the rule determining the admiralty cognizance of torts by place.

On the other hand, it would be a strong thing to say that Congress has no constitutional power to give the admiralty here as broad a jurisdiction as it has in England or France. Or, if that is in some degree precluded, it ought at least to be possible for Congress to authorize the admiralty to give redress for damage by a ship, in a case like this, to instruments and aids of navigation prepared and owned by the government. But Congress cannot enlarge the constitutional grant of power, and therefore if it could permit a libel to be maintained, one can be maintained now. We are called on by the appellees to say that the remedy for any case of damage to a fixture is outside the constitutional grant.

The precise scope of admiralty jurisdiction is not a matter of obvious principle or of very accurate history. As to principle, it is clear that if the beacon had been in fault, and had hurt the ship, a libel could have been maintained against a private owner, although not in rem. Philadelphia, W. & B. R. Co. v. Philadelphia & H. de G. Steam Towboat Co. 23 How. 209, 16 L. ed. 433; Atlee v. Northwestern Union Packet

Co. v. Napier Shipping Co. 166 U. S. 280, 41 L. ed. 1004, 17 Sup. Ct. Rep. 572. Compare The Rock Island Bridge, 6 Wall. 213, 18 L. ed. 753. But, as has been suggested, there seems to be no reason why the fact that the injured property was afloat should have more weight in determining the jurisdiction than the fact that the cause of the injury was. The Arkansas, 5 McCrary, 364, 17 Fed. 383, 387; The F. & P. M. No. 2, 33 Fed. 511, 515; Hughes, Admiralty, 183. And again, it seems more arbitrary than rational to treat attachment to the soil as a peremptory bar, outweighing the considerations that the injured thing was an instrument of navigation, and no part of the shore, but surrounded on every side by water, a mere point projecting from the sea.

.

As to history, while, as it is well known, the admiralty jurisdiction of this country has not been limited by the local traditions of England (The Lottawanna, 21 Wall. 558, 574, 22 L. ed. 654, 661), the traditions of England favor it in a case like this. The admiral's authority was not excluded by attachment even to the main shore. From before the time of Rowghton's Articles he could hold inquest over nuisances there to navigation, and order their abatement. 1 Black Book (Twiss) 224, art. 7; Clerke, Praxis; 1 Select Pleas in Adm., 6 Seld. Soc. Publ., xlv., lxxx.; Articles of Feb. 18, 1633, Exton, Maritime Dicæology, pp. 262, 263; 2 Hale, De Port., chap. 7, p. 88, in Hargrave, Law Tracts; Zouch, in Malynes, Lex Merc., 3d ed. 122; 1 Comyns's Digest, Admiralty, E. 13. See Benedict, Admiralty, 3d ed. § 151; De Lovio v. Boit, 2 Gall. 398, 470, 471, note, Fed. Cas. No. 3,776. Cas. No. 3,776. Coke mentions that "of latter times by the let ters patents granted to granted to the lord admirall he hath power to erect beacons, seamarks and signs for the sea, etc." 4 Co. Inst. 148, 149. To the French admiral, it is expressly stated, belonged "contraincte et pugnicion, tant en criminel que en civil,” in this matter. 1 Black Book, 445, 446. See Crosse v. Diggs, 1 Sid. 158. Spelman says: "The place absolutely subject to the jurisdiction of the admiraltie, is the sea, which seemeth to comprehend publick rivers, fresh waters, creekes, creekes, and surrounded places whatsoever within the ebbing and flowing of the sea at the highest water." Eng. Works, 2d ed. 226. Finally, by the articles of February 18, 1633, all the judges of England agreed that the admiralty jurisdiction extended to "injuries there which concern navigation upon the sea." Exton, Maritime Dicæology, ad fin., pp. 262, 263. And “if the libel be founded upon one single continued act, which was principally upon the sea, though part was upon land, a prohibition

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