Davidson v. New Orleans

ERROR to the Supreme Court of the State of Louisiana.

On the 7th of December, 1871, the petition of the city of New Orleans and the administrators thereof was filed in the Seventh District Court for the Parish of Orleans, setting forth an assessment on certain real estate, made under the statutes of Louisiana, for draining the swamp lands within the parishes of Carroll and Orleans; and asking that the assessment should be homologated by the judgment of the court. The estate of John Davidson was assessed for various parcels in different places for about $50,000. His widow and testamentary executrix appeared in that court and filed exceptions to the assessment; and the court refused the order of homologation, and set aside the entire assessment, with leave to the plaintiffs to present a new tableau.

On appeal from this decree, the Supreme Court of Louisiana reversed it, and ordered the dismissal of the oppositions, and decreed that the assessment-roll presented be approved and homologated, and that the approval and homologation so ordered should operate as a judgment against the property described in the assessment-roll, and also against the owner or owners thereof. Mrs. Davidson then sued out the writ of error by which this judgment is now brought here for review.

Mr. James D. Hill and Mr. John D. McPherson for the plaintiff in error.

The legislation of Lquisiana, under which the judgment below was rendered, deprives the plaintiff in error of her property without due process of law. The jurisdiction of this court is, therefore, established. Bank of Columbia v. Okely, 4 Wheat. 244; Loan Association v. Topeka, 20 Wall. 655; United States v. Cruikshank, 92 U.S. 542; Munn v. Illinois, 94 id. 113; People v. Hurlbut, 24 Mich. 44; Cooley, Taxation, 486, 487.

The legislature cannot impose upon the owner of lands a personal obligation to pay an assessment which is a charge upon them. Taylor v. Palmer, 31 Cal 240; Neenan v. Smith, 50 Mo. 525, followed in 56 id. 286, 350.

The legislature, by employing a private corporation to do the drainage of the city of New Orleans, on account of which the assessment was made, fixing the price and requiring that warrants therefor shall be issued and indorsed, compelled the city to make a contract. This was beyond the legislative power. Atkins v. Randolph, 31 Vt. 226; Hampshire v. Franklin, 16 Mass. 76; Taylor v. Porter, 4 Hill (N. Y.), 143; Brummer v. Litchfield, 2 Greenl. (Me.) 28; People v. Detroit, 28 Mich. 228; Sharpley v. Philadelphia, 21 Pa. 165; Washington Avenue Case, 69 id. 362; Sleight v. People, 7 Chic. Leg. News, 292; The People v. The Mayor, 57 Ill. 18; People v. Salomon, id. 38; People v. Chicago, id. 582; Madison County v. People, 58 id. 463; Hessler v. The Drainage Commissioners, 53 id. 105; Livingston v. Wider, id. 302.

The assessment was made before any work had been done. The only ground, however, on which special assessments are imposed is that the property assessed is benefited. Wright v. Boston, 9 Cush. 232, 241; Schinly v. Commonwealth, 30 Pa. 29, 57; Sharp v. Speir, 4 Hill, 82; Matter of Opening Streets, 20 La. Ann. 497; Reeves v. Treasurer Wood County, 8 Ohio St. 338.

In this case, no benefit whatever inured to the plaintiff in error, and the price was exorbitant.

Mr. Philip Phillips, contra.

The fifth amendment to the Constitution, which declares that no person shall be 'deprived of life, liberty, or property without due process of law, nor shall private property be taken for public use without just compensation,' is a limitation on the powers granted by that instrument to the Federal government, and not a restraint upon the States. Barron v. The Mayor and City Council of Baltimore, 7 Pet. 243; Withers v. Buckley et al., 20 How. 84; Twitchell v. The Commonwealth, 7 Wall. 321.

The fourteenth amendment, which operates on the legislation of the several States, in no wise affects their police power. Commonwealth v. Alger, 7 Cush. (Mass.) 84; Thorpe v. Rutland Railroad, 27 Vt. 149; Slaughter-House Cases, 16 Wall. 36; Cooley, Const. Lim. 509; Dillon, Corp., sect. 598.

The power here in question is of that character, and the mode of exercising it presents no matter which can be reexamined here.

MR. JUSTICE MILLER delivered the opinion of the court.