*70 supreme control, and it delegates to munici- was not allowed to be heard as to the validity and apportionment of the assessment, and was therefore denied due process of law. The charter provision for notice and hearing is inserted in the margin. But whether a property owner is entitled to be heard in advance upon the questions of benefit and apportionment depends upon the authority under which the assessment is made. When the assessment is made in accordance with a fixed rule adopted by a legislative act, a property owner is not entitled to be heard in advance on the question of the amount and extent of the assessment and the benefits conferred. French v. Barber Asphalt Paving Co., 181 U. S. 324, 21 Sup. Ct. 625, 45 L. Ed. 879; Embree v. Kansas City Road District, 240 U. S. 242, 36 Sup. Ct. 317, 60 L. Ed. 624; Wagner v. Baltimore, 239 U. S. 207, 217, 218, 36 Sup. Ct. 66, 60 L. Ed. 230, and cases cited. We are of opinion that the assessment made in accordance with the rule of the St. Louis charter was legislative in character and required no previous notice or preliminary hearing as to the nature and extent of benefits in order to maintain its constitutional validity. The charter of the city of St. Louis was adopted The same view has been repeatedly declarby a vote of the people under state constitu- ed by the Supreme Court of Missouri. In tional authority. It was under considera-Meier v. St. Louis, 180 Mo. 391, 409, 79 S. W. tion in St. Louis v. Western Union Telegraph Co., 149 U. S. 465, 13 Sup. Ct. 990, 37 L. Ed. ic act, so defined in the Constitution, and is to be construed as organic acts are construed. The city is in a very just sense an 'imperium in imperio.' Its powers are self-appointed, and the reserved control existing in the General Assembly does not take away this peculiar feature of its charter." 955, that court declared, citing its previous decisions, that the charter of St. Louis, adopted under the Constitution, had as respects local assessments all the force of legislative acts. We reach the conclusion that the attack upon the validity of the assessment for want of advance notice of hearing as to benefits must fail. struction of any street, avenue, boulevard, alley or public highway of the city, shall be passed unless recommended by the board of public improvements, [2, 3] Regarding the front-foot method of as hereinafter provided. The board shall designate a day on which they will hold a public meeting to assessment as being unassailable under the consider the improvement of any designated streets, previous decisions of this court (240 U. S. avenues, boulevards, alleys or public highways by and 245 U. S., supra), we come to consider grading or regrading, by constructing, or reconthe area assessment. Objections based on structing, by paving or repaving the roadway, including cross-walks and intersections, and shall give the manner of laying out the district, and two weeks' public notice, in the papers doing the whether it conforms to the plan outlined in city printing, of the time, place and matter to be the city charter are conclusively disposed of considered, stating in such notice the kind of material and manner of construction proposed to be used by the decisions of the state court. We have for the wearing surface of such improvement, nam- to deal only with the questions raised as to ing more than one kind of material or manner of the alleged denial of the protection afforded construction, if the board deems it advisable so to by the Fourteenth Amendment. An examdo, and also the class of specification and plan for such work, which specification and plan shall be ination of the plat made part of the record, approved by said board, and filed in its office. If and reproduced in the briefs of counsel, within fifteen days after such public meeting, the shows that owing to the curvatures in Broadowners of the major part of the area of the land made taxable by this article for such improvement, way and the relation thereto of converging shall file in the office of the board of public im- and parallel streets, the assessing district provements their written remonstrance against the laid out in accordance with the charter is proposed improvement, or against the material or of irregular outline. The lots assessed are monstrance, and if said board shall, by a two- by no means uniform in size, nor is their rethirds vote, at a regular meeting, approve of the improvement, material or manner remonstrated against, they shall cause an ordinance for the same to be prepared and report the same with the reasons for their action and the remonstrance to the assembly. If such majority fail to remonstrate within fifteen days or shall petition the board for the improvement, said board may by a majority vote approve the same, and shall cause an ordinance to be prepared and reported to the assembly therefor." manner thereof, the board shall consider such re lation to the improvement uniformly alike. in error's, are not subdivided into lots, and Some blocks, including some of the plaintiff are irregular in shape. But we are not prepared to hold that the assessment district was so laid out with reference to plaintiff in error's property as requires this court to declare the application of the area rule a deni al of due process of law, or of the equal pro- | give it any greater efficacy than when first rentection of the laws. That the assessment, dered. Acts Ark. 1893, p. 145, providing that no judgment rendered or to be rendered against a county on warrants shall bear interest after passage of the act, does not impair the obligation of contract, in violation of Const. art. 1, 10, as respects a prior judgment on noninterest-bearing warrants, though the judgment provides for interest from date at a specified rate. 3. CONSTITUTIONAL LAW 152 DEPRIVING OF PROPERTY WITHOUT DUE PROCESS. Though existing judgment against a county on noninterest-bearing warrants provides for interest from date at a specified rate, judgment creditor is not deprived of property, within the 145, providing that no such judgment shall bear Fourteenth Amendment by Acts Ark. 1893, p. interest after passage of the act. owing to the difficulties of the situation, 2. CONSTITUTIONAL LAW 152-IMPAIRING made inequalities inevitable, is apparent. OBLIGATION OF CONTRACT-PROVISION OF The Supreme Court of the state finds, and JUDGMENT FOR INTEREST. we are not prepared to disturb its conclusion, that the property east and west of Broadway, in the subdivision of the same for the purposes of assessment, was treated with fairness and with as much equality as the situation permitted. The attack upon constitutional grounds because of the system which the charter authorized in making the assessment can only succeed if it has produced results as to plaintiff in error's property palpably arbitrary or grossly unequal. This system has been sustained in many decisions in the Supreme Court of Missouri, and has long been enforced in practice in that state. Its application in the instance passed upon in Gast Realty Company v. Schneider Granite Company, 240 U. S. 55, 36 Sup. Ct. 254, 60 L. Ed. 523, supra, was found to work so arbitrarily as to require an avoidance of In Error to the District Court of the Unitthe area assessment upon constitutional ed States for the Western District of Arkangrounds. The frontage rule of assessment, now generally in use, has been frequently sustained by the decisions of this court. may and does in some instances work inequalities in benefits conferred upon property assessed. In the present case a calculation found in the brief of the defendant in error, the correctness of which does not seem to be challenged, shows that if the property had been assessed by the front-foot rule, that of the plaintiff in error would have had a larger assessment than the one which resulted from the method employed. It The Supreme Court of Missouri found that no evidence was offered to sustain the allegations of the cross-bill that the tax-bills were confiscatory or disproportionate to the benefits received in that the city escaped paying its just proportion of the cost of the improvement because of its ownership of property within the district. sas. Mandamus by the Missouri & Arkansas Messrs. John H. Vaughn, of Fort Smith, Mr. Thomas B. Pryor, of Fort Smith, Ark., for defendants in error. Mr. Justice McREYNOLDS delivered the opinion of the Court. Article 16, § 1, Constitution of Arkansas (1874), declares: "Nor shall any county, city, town or other municipality ever issue any interest-bearing evidences of in*debtedness.” During 1889 (or about that time) Sebastian county, for the benefit of Greenwood disWe are not prepared to say that the plain-trict, issued certain noninterest-bearing wartiff in error, because of arbitrary legislative action or the abuse of power, was denied due process of law or the equal protection of the laws in this assessment. Affirmed. (219 U. S. 170) rants payable "out of any money in the treasury appropriated for ordinary purposes" of which plaintiff in error became lawful holder and owner. It sued upon them in the United States Circuit Court, Western District of Arkansas, and obtained a Judgment, January 26, 1891, for $13,703.29, "with MISSOURI & ARKANSAS LUMBER & interest at the rate of six per cent. per anMINING CO. v. GREENWOOD DIST. OF SEBASTIAN COUNTY, ARK., et al. num from this date until paid together with all its costs in and about this case laid out (Submitted Jan. 17, 1919. Decided March 3, and expended." So far as not satisfied, this 1919.) No. 149. 1. JUDGMENT 872-REVIVAL-EFFECT. Revivals of judgment merely keep it alive and permit its enforcement beyond the period fixed by the statute of limitations, and do not was revived in 1900 and again in 1910; and at different dates from 1896 to 1914 the county made payments thereon aggregating its face value together with six per cent. interest reckoned to March 21, 1893, and all costs. An act of the Arkansas Legislature ap For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 172 * * * * The fur proved March 21, 1893 (Acts Ark. 1893, p. | part, the owner of a judgment will be entitled 145), provides: "No judgment rendered or to receive and have a vested right in the damto be rendered against any county in the ages which shall have accrued up to the date state on county warrants or other evidences of the legislative change; but after that time of county indebtedness shall bear any in- his rights as to interest as damages are, as when terest after the passage of this act;" and he first obtained his judgment, just what the Legislature chooses to declare. He has no conrelying upon this inhibition the county tract whatever on the subject with the defendclaimed that the above-mentioned payments ant in the judgment, and his right is to receive, fully discharged the judgment against it. and the defendant's obligation is to pay, as Thereupon, May 23, 1916, plaintiff in error damages, just what the state chooses to prepetitioned the court below for a mandamus scribe. The discretion exercised by the to compel payment of alleged accrued in- Legislature in prescribing what, if any, damages terest. Answering, the county denied fur- shall be paid by way of compensation for delay ther liability and then asked for an order in the payment of judgments is based on reasons requiring that the judgment be satisfied of of public policy, and is altogether outside the record. The trial court refused a mandamus ther contention of the plaintiff in error, that he sphere of private contracts. and directed satisfaction as prayed. Wheth- has been deprived of his property without due er plaintiff in error's rights under the federal process of law, can be more readily disposed of. Constitution would be violated by giving If, as we have seen, the plaintiff has actually effect to the statute is the only question pre-received on account of his judgment all that he sented for our consideration. The Supreme is entitled to receive, he cannot be said to have Court of the state sustained its validity in been deprived of his property." Read v. Mississippi County, 69 Ark. 365, 63 S. W. 807, 86 Am. St. Rep. 202, where the precise points here involved were presented. [1] The two revivals in 1900 and 1910 kept the judgment *alive and permitted its enforcement beyond the periods fixed by statutes of limitation. Their entry gave it no greater efficacy than it possessed when first rendered. See Barnitz v. Beverly, 163 U. S. 118, 129, 16 Sup. Ct. 1042, 41 L. Ed. 93. It is insisted that as the judgment now under consideration specified a definite interest rate while the one in Morley v. Lake Shore Railway Co., supra, did not, the doctrine there approved is inapplicable. To this we cannot assent; mere recital of a particular rate does not change the nature of the charge as a penalty or liquidated damages. It should be noted that the county warrants, upon which plaintiff in error sued, bore no interest; if the parties had lawfully stipulated therefor, a different question would have been presented. The judgment of the court below is Affirmed. [2, 3] Plaintiff in error maintains that the challenged act conflicts with section 10, art. 1, of the Constitution and also the Fourteenth Amendment, forbidding a state from depriving any person of property without due process of law; but we think the contrary is settled by our opinion in Morley v. Lake Shore Railway Co., 146 U. S. 162, 168, 171, 13 Sup. Ct. 54, 56 (36 L. Ed. 925). There the judgment directed that interest should accrue from its entry without mentioning any rate, the statutory one then being seven per centum; later another act fixed six per centum for the future and the debtor claimed SEUFERT BROS. CO. v. UNITED STATES. benefit of it while the creditor maintained that to permit this would violate both the Contract Clause and Fourteenth Amendment. Through Mr. Justice Shiras we said: "After the cause of action, whether a tort or a broken contract, not itself prescribing interest till payment, shall have been merged into a judgment, whether interest shall accrue upon the judgment is a matter not of contract between the parties, but of legislative discretion, which is free, so far as the Constitution of the United States is concerned, to provide for interest as a penalty or liquidated damages for the nonpayment of the judgment, or not to do so. When such provision is made by statute, the owner of the judgment is, of course, entitled to the interest so prescribed until payment is received, or until the state shall, in the exercise of its discretion, declare that such interest shall be changed or cease to accrue. Should the statutory damages for nonpayment of a judgment be determined by a state, either in whole or in (249 U. S. 194) UNITED STATES et al. v. SEUFERT (Argued Jan. 29 and 30, 1919. Decided March 3, 1919.) Nos. 187, 188. INDIANS 3-TREATIES-FISHING RIGHTS. "The right of taking fish at all usual and accustomed places in common with citizens of the territory," reserved to the Yakima Tribes by the treaty of June 9, 1855, 12 Stat. 951, ceding the lands occupied by them on the north side of the Columbia river in Washington, will be construed, according to its natural meaning and their understanding thereof, as shown by their habitual acts thereafter, to give the right to fish in such places on the south or Oregon side of the river, in the country of another tribe, with which similar treaty was made at about the same time. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *195 Appeals from the District Court of the United States for the District of Oregon. the river? The appeal requires the construction of the language quoted in this question, and the circumstances incident to the mak Suit by the United States, as trustee and ing of the treaty are important. guardian of the Confederated Tribes and Bands of Yakima Indians and Nations, and as trustee and guardian of and on relation of Sam Williams, and Sam Williams, against the Seufert Bros. Company. From the decree (233 Fed. 579) defendant appeals, and the United States takes a cross-appeal, which is abandoned and dismissed. Affirmed. Fourteen tribes or bands of confederated Indians, which, for the purposes of the the name of Yakima Nation, at the time of treaty were considered as one nation under the making of the treaty occupied an extensive area in the territory, now state, of Washington, which is described in the treaty, and was bounded on the south by the Columbia river. By this treaty the government secured the relinquishment by the Indians of all their rights in an extensive region, and in consideration therefor a described part of the lands claimed by them was set apart for their exclusive use and benefit as an Indian reservation, and in addition fishing privileges *Mr. Justice CLARKE delivered the opinion were reserved to them by the following proof the Court. vision in article 3: As trustee and guardian of the Yakima Indians, the government of the United States instituted this suit in the federal District Court for the District of Oregon to restrain defendant, a corporation, its officers, agents, and employés, from interfering with the fishing rights in a described locality on the south side and bank of the Columbia riv. er, which it was alleged were secured to the Indians by article 3 of the treaty between them and the United States, concluded June 9, 1855, and ratified by the Senate on March 8, 1859 (12 Stat. 951). "The exclusive right of taking fish in all the streams, where running through or bordering said reservation, is further secured to said confederated tribes and bands of Indians, as also the right of taking fish at all usual and accustomed places, in common with citizens of the territory, and of erecting temporary buildings for curing them." This treaty was one of a group of eleven treaties negotiated with the Indian tribes of the northwest between December 26, 1854, and July 16, 1855, inclusive. Six of these were concluded between June 9th and July 16th, The District Court granted in part the re- inclusive, and one of these last, dated June lief prayed for and found as follows: That the "following described portion of the south bank of the Columbia river in the county of Wasco, state and district of Oregon, was at the time of the treaty, always has been, and now is, one of the usual and accustomed fishing places belonging to and possessed by the Confederated Tribes and Bands of Indians known as the Yakima Nation. * * And the court further decreed that the rights and privileges to fish in common with citizens of the United States reserved by said Yakima Nation and guaranteed by the United States to it in the treaty of June 9, 1855, applied to all the usual and accustomed fishing places on the south bank or shore of the Columbia river, in the decree described. An appeal from the decree granting an injunction brings the case here for review. As stated by counsel for the appellant the most important question in the case is this: Did the treaty with the Yakima Tribes of Indians ceding to the United States lands occupied by them, on the north side of the Columbia river in the territory of Washington and reserving to the Indians "the right of taking fish at all usual and accustomed places in common with citizens of the territory" give them the right to fish in the country of another *tribe on the south or Oregon side of 25th, was with the Walla-Walla and Wasco Tribes, "residing in Middle Oregon," and occupying a large area, bounded on the north by that part of the Columbia river in which the fishing places in controversy are located (12 Stat. 963). This treaty contains a provision for an Indian reservation and one saving fishing rights very similar in its terms to that of the Yakima treaty, viz.: "That the exclusive right of taking fish in the reservation is hereby secured to said Indians; streams running through and *bordering said and at all other usual and accustomed stations, in common with citizens of the United States, and of erecting suitable houses for curing the same." These treaties were negotiated in a group for the purpose of freeing a great territory from Indian claims, preparatory to opening it to settlers, and it is obvious that with the treaty with the tribes inhabiting Middle Oregon in effect, the United States was in a position to fulfill any agreement which it might make to secure fishing rights in, or on either bank of, the Columbia river in the part of it now under consideration-and the treaty was with the government, not with Indians, former occupants of relinquished lands. The District Court found, on what was suf ficient evidence, that the Indians living on each side of the river, ever since the treaty was negotiated, had been accustomed to cross to the other side to fish, that the members of the tribes associated freely and intermarried, and that neither claimed exclusive control of the fishing places on either side of the river or the necessary use of the river banks, but used both in common. One Indian witness, says the court, “likened the river to a great table where all the Indians might come to partake.” The record also shows with sufficient certainty, having regard to the character of evidence which must necessarily be relied upon in such a case, that the members of the tribes designated in the treaty as Yakima Indians, and also Indians from the south side of the river, were accustomed to resort habitually to the locations described in the decree for the purposes of fishing at the time the treaty was entered into, and that they continued to do so to the time of the taking of the evidence in the case, and also that Indians from both sides of the river built houses upon the south bank in which to dry and cure their fish during the fishing season. *This recital of the facts and circumstances of the case renders it unnecessary to add much to what was said by this court in United States v. Winans, 198 U. S. 371, 25 Sup. Ct. 662, 49 L. Ed. 1089, in which this same provision of this treaty was considered and construed. The right claimed by the Indians in that case was to fishing privileges on the north part and bank of the Columbia riverin this case similar rights are claimed on the south part and bank of the river. The difference upon which the appellant relies to distinguish this from the former case is that the lands of the Yakima Indians were all to the north of the river and therefore it is said that their rights could not extend beyond the middle of that stream, and also that since the proviso we are considering, is in the nature of an exception from the general grant of the treaty, whatever rights it saves must be reserved out of the thing granted, and as all of the lands of the Yakima tribes lay to the north of the river it cannot give any rights on the south bank. But in the former case (United States v. Winans, supra), the principle to be applied in the construction of this treaty was given in this statement: "We will construe a treaty with the Indians as 'that unlettered people' understood it, and 'as justice and reason demand in all cases where power is exerted by the strong over those to whom they owe care and protection,' and counterpoise the inequality 'by the superior justice which looks only to the substance of the right Nation v. U. S.] 119 U. S. 1 [7 Sup. Ct. 75, 30 without regard to technical rules.' [Choctaw L. Ed. 306; Jones v. Meehan], 175 U. S. 1 [20 Sup. Ct. 1, 44 L. Ed. 491]." How the Indians understood this proviso we are considering is not doubtful. During all the years since the treaty was signed they have been accustomed habitually to resort for fishing to the places to which the decree of the lower court applies, and they have shared such places with Indians of other tribes from the south side of the river and with white men. This shows clearly that their understanding of the treaty was that they had the right to resort to these fishing grounds and make use of them in common with other citizens of the United States-and this is the extent of the right that is secured to them by the decree we are asked to revise. To restrain the Yakima Indians to fishing on the north side and shore of the river would greatly restrict the comprehensive language of the treaty, which gives them the right "of taking fish at all usual and accustomed places and of erecting temporary buildings for curing them," and would substitute for the natural meaning of the expression used-for the meaning which it is proved the Indians, for more than fifty years derived from it-the artificial meaning which might be given to it by the law and by lawyers. The suggestion, so impressively urged, that this construction "imposes a servitude upon the Oregon soil," is not alarming from the point of view of the public, and private owners not only had notice of these Indian customary rights by the reservation of them in the treaty, but the "servitude" is one existing only where there was an habitual and customary use of the premises, which must have been so open and notorious during a considerable portion of each year, that any person, not negligently or willfully blind to the conditions of the property he was purchasing, must have known of them. The only other questions argued by the appellant relate to the claims which counsel anticipated would be made on the cross-appeal by the government, which, however, was abandoned before oral argument and must be dismissed. It results that the decree of the District Court must be Affirmed. |
