# French v. Barber Asphalt Paving Company

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## Dissenting Opinion

    Harlan
United States Supreme Court
181 U.S. 324
French v. Barber Asphalt Paving Company
Argued: February 25, 26, 27, 1901. --- Decided: April 29, 1901
This was a suit instituted in the circuit court of Jackson county, Missouri, by the Barber Asphalt Paving Company, a corporation whose business it was to construct pavements composed of asphalt, against Margaret French and others, owners of lots abutting on Forest avenue in Kansas City, for the purpose of enforcing the lien of a tax bill issued by that city in part payment of the cost of paving said avenue.
The work was done conformably to the requirements of the Kansas City charter, by the adoption of a resolution by the common council of the city declaring the work of paving the street, and with a pavement of a defined character, to be necessary, which resolution was first recommended by the board of public works of the city. This resolution was thereupon published for ten days in the newspaper doing the city printing. Thereafter the owners of a majority of front feet on that part of the street to be improved had the right, under the charter, within thirty days after the first day of the publication of the resolution, to file a remonstrance with the city clerk against the proposed improvement, and thereby to devest the common council of the power to make the improvement, and such property owners had the right by filing within the same period a petition so to do, to have such street improved with a different kind of material or in a different manner from that specified in such resolution. In this instance neither such a remonstrance nor petition was filed, and the common council, upon the recommendation of the board of public works, enacted an ordinance requiring the construction of the pavement. The charter requires that a contract for such work shall be let to the lowest and best bidder. Thereupon bids for the work were duly advertised for, and the plaintiff company being the lowest and best bidder therefor, a contract was, on July 31, 1894, entered into between Kansas City and the plaintiff for the construction of said pavement.
The contract expressly provided that the work should be paid for by the issuance of special tax bills, according to the provisions of the Kansas City charter, and that the city should not in any event be liable for or on account of the work. The cost of the pavement was apportioned and charged against the lots fronting thereon according to the method prescribed by the charter, which is that the total cost of the work shall be apportioned and charged against the lands abutting thereon according to the frontage of the several lots or tracts of land abutting on the improvement. The charge against each lot or tract of land was evidenced by a tax bill. The tax bill representing the assessment against each lot was, by the charter, made a lien upon the tract of land against which it was issued, and was prima facie evidence of the validity of the charge represented by it. Such lien can be enforced only by suit in a court of competent jurisdiction, against the owners of the land charged. No personal judgment was authorized to be rendered against the owner of the land. The right was expressly conferred on the owner of reducing the amount of the recovery by pleading and proving any mistake or error in the amount of the bill, or that the work was not done in a good and workmanlike manner.
The defendants pleaded and contended that the contract offered in evidence was a contract to construct the pavement and maintain and keep the street in repair for five years, and was contrary to the charter of Kansas City, void, and of no effect; and that the charter of Kansas City purports to authorize the paving of streets and to authorize special tax bills therefor, charging the cost thereof on the abutting property according to the frontage, without reference to any benefits to the property on which the charge was made and the special tax bills levied, and that such method of apportioning and charging the cost of the pavement was contrary to and in violation of the 14th Amendment to the Constitution of the United States.
The judgment of the circuit court of Jackson county was for the plaintiff company for the amount due on the tax bill, and for the enforcement of the lien. From this judgment an appeal was taken to the supreme court of Missouri, and on November 13, 1900, the judgment of the circuit court was affirmed, and thereupon a writ of error from this court was allowed.
Mr. Henry N. Ess for plaintiffs in error.
Messrs. Wm. C. Scarritt, Edward L. Scarritt, John K. Griffith, and Elliott H. Jones for defendant in error.
Mr. Justice Shiras delivered the opinion of the court:

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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