72.6'
FEDERAL. REPORTER ,vol.
44.
w.ith our pr,esllntimpressionaof the character and general scope of com-, plllililant's bjlsiness"the court ought not, by the appointrnent ofa receiv-er,to aid complainant to perfect, and perhaps to: erilarge,his com.. bination or ,trust; and the refusal to appoint a receiver can result in no serious andJasting injury to complainant, because the shares of stock of complainant company, forming the entire consideration of complainant's pur<:hase, have. been .tendered in court, and may be impounded"to be held as security for any damages susceptible of p"oof resulting from defend.a,nt's mismanagement of the property pending the suit. The motion Jor a receiver is denied.
Mtm:OOcx tI.CI'l'YOll'
CINCINNATI
et al,
(CWctltt Court, S. D. 011.1.0. W. D. January 7. 1891.)
L
:
notoply to, pay his own assessments, but also to answer for anyueficlency lnthecolleetlbilityof tbe assesSments against otber abutting owners, waives. bis ',':right'to'notice or an"opportUnity to'be heard before the assessmentB'are levied;) "I\d' city authorities, wbo levied the assessmeJj.t:intbe exel"'. clse, of t,iie power conferred on thein bylaw, and in complianc!l the. petitioq, clI:n-, D,ot.a,fterWar,ds be'im,pe,sched by/luch abutting owner, as beIng WIthOut due process of law:. for the lsck of such or lin opportunity to be heard. ' " ," " The institution of annction in a state court by the city against the abUtting owner (or.'th,e CQll. 0,tth,e,assess,ment atl'ords him the. opportunity of p,re,sentin,g eV,e, ry e,ither ,Under the constlWtion of tbe United States or under theconsti!'P' tian aUd, 1,8W8 of .thes,tate, going to the validity of the 8ssessmen1ii and the juqg, ment: reJidel'lld insuob action wID constitute due process of law. · , " 8. BAMlil. -FEllERAL QUEaTJON. ,
O!!'AqTIQN
IN
SUTECOURT.
"
.',
i
, W,netbtlr:or not is personally liable for an assessment m.alIe for the improvemen t ot a sti'eetbefore he. became the owner of propert,yabutting thereon is, nQt federal " ' .. 1 '
. "
'
In
P{l.eo.,l101'strna'!h ,for detendants. : The complainant seeks to enjoin the city ofCincinnati, its agents and: 'officers, from collecting or enforcing against him or his propertycertaill foot-front assessments, leviI'd and imposed to meet and; defray theJlexpenses incurred in improving Grand, Hawthorn, andPhHlips llvenUe!'!, city, on which complainant'slot or parcel ofgr6tlll.'d' bouuded, and 81bllltted. It is not denied that laws the city of Cincinnati confer ,upon its :authorities full power to make a.ssessments to defray the costs anclexpensesof improving streets Hnd' aVl"nues therein' by the fo()HrQnt .oHhep.roper.ty bounding and abutting u\>on suchi.mprovements. LiByaections 2263, 2264, Rev. St. Ohio, the city dOll'ncil are' llut,hQnz.ect w!a&ses!lthe costs and expenses of acquiring and ofliMptoving
p. JQne8,
MURDOCK
'Ve CITY OF' CINCINNATI.
127
'eithe'r upOIHhe general· tl!,x.,lis't; in which 'caSe the, assessment . is imposed uponalUhe taxable·realan,d. personal property in· ttiotl,t "may be assessed ion the abutting, and. such adjacent aQd.<:ontiguous,or other benefited, lots ,and lands in the,cqrpqration, !3Hher iaproportiooi to the benefits which may result from the improve. or according to the v:;llue of the property assessed, or. by the foot frOu.t of.the property bounding and abutting upon the improvement, as :the ;cQuncil.,. by ,ordinance setting forth sp cjfically the lots. and Jands to assessed, may determine before. the ilhprovem.ent ismade. u ! 'Such 8.ssessments.may;;ha.made .payable in .oneor: more illstalhriEimst and at . such times asthe.councilmay 'prescribe.ILclearly appears that the <:ityauthol'itiellirlirected theimprovelnents:, and made the assessments ,in question. ;to defray the expflnseR' thereof; .Iin· accordance with the pro. visions of tbe s,tIatutes' relating ,to· the subject: ButiHs claimed' 00 ,balf of.cQmplai'1lantthat, although! thela:ws aUitQocizinglthe assessments .eomplained of· were co:inpliedwith, ,theJ;an!lthe i ' proceedings taken thereunder ;by. the city,authorities,. are wantitllg due process of law j" beca:Mesaidassessm,nts are allowed and' penmitted,tn be'niadeiwithout notice to, or or an o.pport1:1:1lity of .hearing, by;; othe::owAer or 4)wners of the·.prpperty to he Ilssessed,and 'because, 41 fact; no no icewas giv:en.to ,oompl.a.inant,. nor. any ..oppOl'turiity of :hearing, afforded h;imin thereto. ",!:" : ; i , i :.: I: ; ':., · . · ! ,This is ithe question. presented' by; reeordor involved in.the:case.Thecot!l:lplainant iteHes,upoQ the opinion of this court in of :of Poledo, 36 Fed.. Rep. 385,insupportiof his c0Xliention. ;But thisdase is, clearly distinguishable; ,in iseveral important partieulars,l from. that .of: Scottv. :(}ity 41'018£1.0, and is! not, properly con· trolled by; that decision. It is shown' here that complainant actually petitiooedtheboard'lIl[:public,aflliirs of Cincinnati for the improv.ement of.Hawthorn and Phillips arid for theassessment:for the whole cost .of:euch to be made and'collectedinlO animal ments, etc. i and in :consideration of said improveulent,"he, aQd, each ,of the signers of ,ssid,petitions,'agreedwith each and with ):laid city, and jointly and,lleverally,bQundhimself, to make good to the city any deficiency in the collectibilify,of the asaessEmused by insufficiency' of values of property of the petitions. In respect to Grandavetlue, hispredecessct' iIi title had sigQed and presented to. said board a, similar petition. . In compliance with .said petitions, after due and proper steps toascertaiLl the posts of the' propriety of making the same, the. ,board of public l!-ffairs rec0mmended the improvements aljlked for, andi:reported: tb the council the necessary ordiriam:eson .thel;!ubject 1 wbiehwere paased,iand assessments made, anddireatedto be collected in: 10 itlstal}ments, on,the:basisofthe ,[00.t frontp! tHe .propertyiaibutting $heimprov.enumts. Due notice of. those pr;oceedingsWlls :given ·to . :After ad:vertisil?g .for bids,. the work :let out. and: com. the fu.ll k.liawle9geand acqqiescence'of'oomplainantl "While pleted \l8id peti tWnar.' fpr: .tqe impro.vement of· said ,ayenues' '.did: iru:
728
FEDERAL REPORTER,
vol. 44.
terms, state upon what basis or plan the city authorities should make the assessments to pay for the same,-whether in proportion to the benefits which might result from the improvement, or according to the value of the property to be assessed, or by the foot front of the property bounding and abutting upon the improvement,-the petitioners set forth that they were severally the owners of property "represented by the foot front abutting upon" the avenues asked to be improved, and opposite their respective signatures tQe number of foot front was given in figures. If the petitions thus presented did not impliedly request that the assessment should be made on the foot-front plan or basis, it very clearly left that matter to the discretion of the city authorities. Under such circumstances. is complainant in position to claim that he has had no notice of the assessment' or opportunity to be heard in respect thereto? The proceedings on the city's part were in accordance with the provisions of law relating to the subject. Those proceedings were had and taken at complainant's written request, and in conformity therewith. Can he now be heard to complain that there was a want of notice or opportunity to be heard. in respect to what he had thus previously petitioned should be done? He not only petitioned for the improvement to be made, but expressly requested that the assessment to. pay for the same should be made and collected in 10 equal annual installments, and furthermore agreed to answer for any deficiency in the collectibility of the assessment caused by' insufficiency of values of property of those abutting owners not signing the petition. The Ohio decisions hold that the property 'owner, under such circumstances and conditions, is estopped from denying or impeaching the assessment. Whether or not such conduct constitutes a technical estoppel, it is not necessary to here discuss or determine. It is, however, a clear waiver of the right to insist upon notice, or an opportunity to be heard, in respect'to steps taken or proceedings had in pursuance of' the property owner's express request. When the city authorities exercise power conferred by law at the instance and special request of the party to be assessed, and in the mode desired, it would be an anomaly in the law if such party could afterwards impeach the proceedings, and have them declared void for want of notice or an opportunity to be heard. Proceedings, whether e:t: parte or adversary, which result in the taking or depriving a person of his private property, are not wanting in "due process of law" if such person has, in advance, consented to the same. His request that they should be had is the equivalent of notice, or a waiver thereof. It would be absurd to eay that a party, who had, by written petitions or power of attorney, requested or authorized a court of competent jurisdiction to enter up a judgment against him for a given sum, or for a sum to be ascertained, was entitled to notice of what the court did under and in pursuance of his authority, in order 'to give validity to its action. The judgment entered by the court without notice, but in conformity with the prayer of the petitions, would not be wanting in "due process of law." The previous request by the party to be fected. for the exercise of power conferred by law upon public officials.
UHLE 11. BURNHAM:.
729
is the substitute, for notice; and the proceedings taken in conformity with such request and the provisions of law are not subject to the objection of being wanting in "due process oflaw, " for lack of notice to, or an opportunity of hearing by, the petitioner. Aside from the fact that the assessments complained of, or two of them, at least, ,were made at the special instance and request of complainant, and other owners of property abutting on the improvements, it appears that the city of Cincinnati is now proceeding by civil suit in the state court against complainnnt to collect the assessments in question. To that suit complainant may interpose any and all defenses going either to the validitY' or regularity of said assessments. Said suit gives him a full opportunity..to be heard, and affords him the privilege of presenting every objection that can possibly be made, either under the constitution of the United States or under the constitution and laws of Ohio, to the validity of the assessments. It cannot be questioned that the judKment which may be rendered against complainant in said suit will constitute "due process oflaw." , Whether complainant is personally liable for the assessment made for the improvement of Grand avenue betore he became the owner of the property abutting thereon, is not a Jederal question. If he or his property is held liable fQf that assessment, he, no doubt, may look to his grantors for indemnity under the covenants of their deed. In the foregoing respect, the present case is essentially different from that of BcOtt v. Oily oj Toledo, 36 Fed. Rep. 385. IUs not properly controlled by the opinion in. that case, but irs controlled by the decision of the state and supreme courts in the case of OIYN"Jj v.OampbeU, 3 Wkly. Cin. Law.Bul. 174, cited by counseLfor respondents, which presented the same questions,. and under substantially the same state of facts. The conclusion of this court is that complainant's bill should be dismissed, with costs to be taxed. and it is, accordingly so ordered and decreed.
UHLE
et al.
'11.
BunNlIAM: et 01.
(Circuit Court. S. D. Nt:rJJ :t+"ork. December 81, 1800.)
Failure to ma1l;:e a timely motion to suppress a deposition is a waiver of any Objection as to the manner of taking it. 2. S.AMIlI-NOTICII OF TAKING. . Notice under.Rev. St. U.s. § 868,. that plaintiff will proceed to take depositions of certain witnesses in three different cities on the same day, is not suchreasoilable . notice as the statute requires, and: such depositions should be suppressed. ' 3. SAMIli. Where de.fendants· counsel avpears and ob:iects to the taking of the depositions on the ground that"theIiotice is unreasonable, the fact that he afterwards pro. oeeded to cross-examine the witnesses is not a waiver· of the objection· .. S.um.. , It is not an answer to a motion to lIuppress such depositions that'defendanta have given'. similar notice of intention: to take depositions. i ;' ' : . , ;
1.
DIllPOSITION-'-":HOTIOXTO SUPPRIllllll-'JW.uvIllR OIl'OBJIllOTIOXS.