Bellingham Bay Company v. New Whatcom/Opinion of the Court

by David Josiah Brewer

United States Supreme Court

172 U.S. 314

Bellingham Bay Company  v.  New Whatcom

By its answer, the defendant raised a federal question, inasmuch as it alleged that the notice of the reassessment was insufficient, and specifically that by reason thereof its property was sought to be taken without due process of law, and in conflict with the terms of the fourteenth amendment to the constitution. This court therefore has jurisdiction of the case.

That notice of the reassessment was essential is not questioned (Davidson v. New Orleans, 96 U.S. 97, 105; Hagar v. Reclamation Dist., 111 U.S. 701, 710, 4 Sup. Ct. 663; Cooley, Tax'n, 266), and that constructive notice by publication may be sufficient is conceded (Lent v. Tillson, 140 U.S. 316, 328, 11 Sup. Ct. 825; Paulsen v. Portland, 149 U.S. 30, 13 Sup. Ct. 750); but the contention is that the notice, which was provided for, and which was in fact given, was insufficient, because it was only a 10-days notice. We quote from the brief of counsel:

'While we concede in the first instance to the legislature the authority to prescribe the time of the notice, we assert that this is not an absolute authority relieved from judicial review. The shortening of the time and the limiting of opportunity to be informed through constructive notice may be such as to render the notice unavailing for the purpose for which notice is designed. If that be the case, it is not notice. To prescribe that, within ten days after the contingency of a three-days publication, the landowner is left without redress for any kind of burden that may be placed upon his property in the way of taxation, amounts to a taking of property without due process of law. Under the pretense of prescribing and regulating notice, all practical notice cannot be taken away. There is a limit to legislative power in shortening the time of notice, and, if that limit is transcended, the courts will hold it void.'

We are unable to concur in these views. It may be that the authority of the legislature to prescribe the length of notice is not absolute and beyond review; but it is certain that only in a clear case will a notice authorized by the legislature be set aside as wholly ineffectual on account of the shortness of the time. The purpose of notice is to secure to the owner the opportunity to protect his property from the lien of the proposed tax, or some part thereof. In order to be effectual, it should be so full and clear as to disclose to persons of ordinary intelligence in a general way what is proposed. If service is made only by publication, that publication must be of such a character as to create a reasonable presumption that the owner, if present and taking ordinary care of his property, will receive the information of what is proposed, and when and where he may be heard. And the time and place must be such that with reasonable effort he will be enabled to attend and present his objections. Here no question is made of the form of the notice. It was published in three successive issues of the official paper of the city. So the statute required. What more appropriate way of publishing the action of a city than in its official paper? Where else would one interested more naturally look for information? And is not a repetition in three successive issues of the paper sufficient? How seldom is more than that required? Indeed, we do not understand that any challenge is made of the sufficiency of the publication. But when that is made, and is sufficient, notice is given. The fact that the owner, after being notified, is required to appear and file his objections within 10 days, is thus the sole ground of complaint. But how many days can the courts fix as a minimum? How much time can be adjudged necessary as matter of law for preparing and filing objections? How many and intricate and difficult are the questions involved? Regard must always be had to the probable necessities of ordinary cases. No hardship to a particular individual can invalidate a general rule. A reassessment implies not merely the fact of the improvement, but also that one attempt had been made to collect the cost, and failed. Inquiry had been had in the courts, and the one assessment set aside. The facts were known. Ten days' time, therefore, does not seem unreasonably short for presenting objections to a reassessment.

And there is nothing in the case of this plaintiff in error to suggest any injustice. It, though a corporation of the state of California, was doing business in the state of Washington, and having its principal office in the city of Whatcom. In other words, it was domiciled in the city in which the improvement was made. The improvement made on the street on which its lots abutted consisted in grading, planking, and sidewalking. It is, to say the least, highly improbable that it could have been ignorant of the fact that they were made. It must have known also that such improvements have to be paid for, and that the ordinary method of payment is by local assessment on the property benefited; the abutting property being primarily the property benefited. A previous assessment had been made for the cost of these improvements. Litigation followed, which was carried to the supreme court of the state, and resulted adversely to the city. It is true this plaintiff in error was not a party of record in that litigation, and counsel criticise a statement in the opinion of the supreme court in this case, that 'it appears that the appellant has been contesting the proceedings to collect the cost of these improvements for several years past, and that no hardship has resulted in consequence of the shortness of time prescribed'; yet it may be that the court was advised by counsel that it had contributed to the cost of that litigation, and, at any rate, it is difficult to believe that it was ignorant all these years of what was going on.

In view, therefore, of the character of the improvements, the residence of the plaintiff in error, the almost certainty that it must have known of the improvements, and that it would be expected to pay for them, it is impossible to hold that a ten-days notice was so short as to be absolutely void. And especially is this true when the supreme court of the state in which the proceedings were had has ruled that it was sufficient. Before proceedings for the collection of taxes sanctioned by the supreme court of a state are stricken down in this court, it must clearly appear that some one of the fundamental guaranties of right contained in the federal constitution has been invaded.

The judgment of the supreme court of the state of Washington is affirmed.

Notes