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and remain unpaid; and the said board of finance and taxation shall, upon receiving said certified account, cause said lands to be sold for the payment of said water rents and penalties, and the interest thereon, from said twentieth day of December, at the rate of twelve per centum per annum, and also costs, charges, and expenses of advertising and sale, in the same manner as said board of finance and taxation may be authorized by law to sell lands in said city for the payment of taxes thereon, and said proceedings and the effect thereof shall be the same in all things as if the said lands were sold for taxes."
By section 151 of the same charter it was enacted (substantially as the law had been since the year 1839) "that all taxes and assessments which shall hereafter be assessed or made upon any lands, tenements, or real estate situate in said city, shall be and remain a lien thereon from the time of the confirmation thereof until paid, notwithstanding any devise,*descent, alienation, mortgage, or other incumbrance thereof; and that if the full amount of any such tax or assessment shall not be paid and satisfied within the time limited and appointed for the payment thereof, it shall and may be lawful for the board of finance and taxation to cause such lands, tenements, or real estate to be sold at public auction, for the shortest term for which any person will agree to take the same and pay such tax or assessment, or the balance thereof remaining uupaid, with the interest thereon, and all costs, charges, and ex. penses." And it was provided “that all moneys paid for the redemption of said lands, tenements, or real estate, as aforesaid, together with such taxes and assessments as shall be paid by a mortgagee or other creditor, under a judgment, attachment, or mechanic's lien, shall be a lien on said lands, tenements, or real estate for the amount so paid, with interest at the rate of seven per centum per annum; and such lien shall have precedence of all other liens on said lands, tenements, or real estate; and on foreclosure of any mortgage by such mortgagee redeeming, shall be directed to be made out of said lands, and on sale of said lands under any such judgment, attachment, or mechanic's lien, shall be paid out of the proceeds of sale."
These extracts are sufficient to show the general character of the system by which the water rates are imposed and enforced in Jersey City. Much discussion has taken place in the state courts as to the precise nature of these water rents: whether they are a tax, or an assessment for benefits, or a stipulated compensation resting on implied contract. If regarded as taxes, they have been supposed to contlict with a clause in the state constitution, adopted in 1875, declaring that “property shall be assessed for taxes under general laws, and by uniform rules, according to its true value." If regarded as special assessinents for benefits arising from a public improvement, they have been held as open to the objection of not being laid on correct principles,being distributed according to the dimensions and measurements of the seve eral lots and buildings, and not according to the benefits received. These objections were held to be conclusive in the case of water rents imposed on unoccupied lots, and lots not supplied with water; both the act of 1852, and the revised charter of 1871, having provided for the imposition of water rents on property of that kind, situated on streets in which water-pipes were laid. The supreme court of the state has decided that under the state constitution this imposition cannot be sustained; because, for the reasons just stated, it is neither valid as a tax, nor as a special assessment for benefits. State v. Jersey City, 43 N. J. Law, 135. But the rents imposed for water actually used, as in the case now under consideration, have been held valid on the ground of an implied contract to pay them. The terms being public and well known, persons applying for a supply of water are supposed to assent to them. Vreeland v.O'Neil, 36°N. J. Eq. 399; S. C. on appeal, 37 N. J. Eq. 574.
As the case comes before us, it is not necessary to enter into the discussions that have occupied the state courts. We are to assume that the rents, penalties, and interest claimed by the city have been imposed and incurred in con
formity with the laws and constitution of the state, and that, by virtue of said laws and constitution, they are a lien on the property mortgaged to the complainant prior to that of its mortgages; and, this being so, we are only concerned to inquire whether those laws thus interpreted are or are not repugnant to the constitution of the United States. The only clause of the constitution supposed to be violated is that portion of the fourteenth amendment which declares that no state shall deprive any person of life, liberty, or prop. erty without due process of law. It is contended that the mortgages createo in 1863 and 1869, there being then no valid water rents due on the lot mort gaged, invested the complainant with the first lien thereon, and that that lien is property; and that the statutes of 1852 and 1871, by giving a superior lier to water rents afterwards accrued, deprive it of its said property without due process of law. What may be the effect of those statutes in this regard upon mortgages which were created prior to the statute of 1852, it is unnecessary at present to inquire. The mortgages of the complainant were not created prior to that statute, but* long subsequent thereto. When the complainant took its mortgages, it kne w what the law was. It knew that by the law, it the mortgaged lot should be supplied with Passaic water by the city authorities, the rent of that water, as regulated and exacted by them, would be a first lien on the lot. It chose to take its mortgages subject to this law; and it is idle to contend that a postponement of its lien to that of the water-rents, whether after accruing or not, is a deprivation of its property without due process of law. Its own voluntary act, its own consent, is an element in the transaction. The cases referred to by counsel to the contrary, holding void a consent exacted contrary to the constitution, have no bearing on the present cases.
It may, however, be contended (though it is not by the counsel in this case) that the revised charter of 1871 introduced new impositions, additional to the mere water rent, such as authorizing a penalty to be imposed by the board of public works, if payment of the water rents were not made by a certain time, and a heavy rate of interest on rents continuing in arrear. But we look upon these provisions as merely intended to enforce prompt payment, and as incidental regulations appropriate to the subject. The law which authorized these coercive measures gave to mortgagees and judgment creditors the right to pay the rents and to have the benefit of the lien thereof; so that it was in their own power to protect themselves from any such pen. alties and accumulations of interest. They are analogous to the costs in. curred in the foreclosure of the first mortgage, which have the same priority as the mortgage itself over subsequent incumbrances.
In what we have now said in relation to the anterior existence of the law of 1852 as a ground on which this case may be resolved, we do not mean to be understood as holding that the law would not also be valid as against mortgages created prior to its passage. Even if the water rents in question cannot be regarded as taxes, nor as special assessments for benefits arising from a public improvement, it is still by no means clear that the giving to them a priority of lien over all other incumbrances upon the property served with the water would be repugnant to the constitution of the United States. The law which gives to the last maritime liens priority over earlier liens in point of time, is based on principles of acknowledged justice. That which is given for the preservation or betterment of the common pledge is in natural equity fairly entitled to the first rank in the tableau of claims. Mechanics' lien laws stand on the same basis of natural justice. We are not prepared to say that a legislative act giving preference to such liens even over those already created by mortgage, judgment, or attachment, would be repugnant to the constitution of the United States. Nor are we prepared to say that an act giving preference to municipal water rents over such liens would be obnoxious to that charge. The providing of a sufficient water supply for the inhabit
ants of a great and growing city is one of the highest functions of municipal government, and tends greatly to enhance the value of all real estate in its limits; and the charges for the use of the water may well be entitled to take high rank among outstanding claims against the property so benefited. It may be difficult to show any substantial distinction in this regard between such a charge and that of a tax strictly so called. But as the present case loes not call for an opinion on this point, it is properly reserved for consideration when it necessarily arises.
The decree of the court of errors and appeals of New Jersey is affirmed.
(113 U. S. 645)
(March 2, 1885.) 1. WRIT OF ERROR-FAILURE TO FILE THEREWITH ASSIGNMENT OF ERROR-JURISDICTION.
A failure to annex to or file with a writ of error an assignment of errors, in accordance with the requirements of section 997 of the Revised Statutes, will not cause the
writ to be dismissed for want of jurisdiction. 2 SAME_COPY OF ASSIGNMENT OF ERRORS-RULE 8 OF RULES OF COUBT.
Rule 8 of the rules of court does not require a copy of the assignment of errors in
the transcript when no such assignment was filed in the court below. 3. SAME-NAMES or PARTIES.
When the writ gives all the names of the parties as they are found in the record of the case in the circuit court, and when there is nothing to show that any other person was a party than such as are so named, the supreme court is not at liberty to indulge the presumption that there were others who were parties, when such presumption is not founded on anything in the record that would lead to a mani.
fest injustice. 4. ORDER OF COURT-DISMISSING INTERVENTION.
A party having intervened by petition, under the laws of Louisiana, in an attach. ment proceeding, in order to claim a prior lien by reason of
an attachment previ. ously laid upon the debtor's property, the order dismissing such intervention disposes of the party's rights, and is a final judgment of that issue, as to which he has a right to a writ of error. An order likewise made, distributing the proceeds of sale, is likewise final, as it disposes of the fund. In Error to the Circuit Court of the United States for the Eastern District of Louisiana.
Thos. J. Semmes, for the motion. Chas. F. Buck and G. H. Braughn, in opposition.
MILLER, J. A motion is made to dismiss the writ of error in this case on the following grounds: (1) The writ of error was never served by lodging a copy thereof with the clerk of the court. * (2) No assignment of errors was transmitted with the record, as required by the rules of the court and by section 997 of the Revised Statutes. (3) The writ of error does not set forth the names of the members of the several firms mentioned in the writ as defendants, and there is nothing in the record by which this irregularity may be corrected. (4) The original petition demands restoration of the goods seized by the marshal to the sheriff, on the ground of previous seizure by that officer under an attachment emanating from the state court. The amended petition abandons that ground, and goes for priority in the distribution of the proceeds of sale in the marshal's hands, the result of an order of sale pendente lite. Such a petition is a mere rule or motion for distribution of proceeds, and a judgment rendered thereon is not reviewable by writ of error.
As to the first of these, it appears to be unfounded in fact, as the record now before us shows that the writ was filed in the circuit court June 14, 1884, and is so marked over the signature of the clerk.
The second ground is met by the decision of this court in the case of the School-district of Ackley v. Hall, 106 U.S. 428, S. C. 1 Sup. CT, REP. 417, where it is said that a writ of error will not be dismissed for want of jurisdiction
by reason of a failure to annex thereto or return therewith an assignment of errors pursuant to the requirements of section 997 of the Revised Statutes. Nor does rule 8 require a copy of assignment of errors in the transcript when no such assignment was filed in the court below.
The fourth ground of dismissal is equally untenable. The record shows that a large number of the creditors of Joseph Dreyfus, of the city of New Orleans, sued him in the circuit court of the United States, and in those actions, or in one of them, a writ of attachment was issued and levied on the goods of Dreyfus by the marshal, who took possession of them. In this action Gumbel intervened by petition, as he was authorized to do by the laws of Louisiana, and by the decision of this court in Freeman v. Howe, 24 How. 450, alleging that a seizure under a writ of the state court in his favor had been made by the sheriff before the marshal's levy, and he claimed a priority of lien on those goods. The goods were sold under an order of the circuit court pendente lite and the proceeds distributed to other parties, and Gumbel's intervention dismissed on the ground that the sheriff had made no seizure prior to that of the marshal. The order dismissing Gumbel's intervention disposes of his rights, and is a final judgment as to that issue, as to which he has a right to a writ of error. The order distributing the proceeds of the sale is also final, as it disposes of the fund.
As regards the third ground for dismissal the case is not so clear. This court has undoubtedly, from the case of Darneale v. Stump, 8 Pet. 526, to that of The Protector, 11 Wall. 82, held that all the parties to the judgment must be named in the writ of error, and that the use of the name of one of the parties, with the addition of the words “and others," as “Joseph W. Clark and others,". does not satisfy the requirement, but on the contrary shows that there were: parties to the judgment or decree in the inferior court who are not named in the writ. It is upon this ground that the judgment in the case of Smith v. Clark, 12 How. 21, is distinctly placed by Chief Justice TANEY in the opinion. In the case of The Protector, 11 Wall. 82, the appeal was taken in the name of William A. Freeborn & Co., while the record showed that William A. Freeborn, James F. Freeborn, and Henry P. Gardner were the libelants. In this court counsel insisted that the objection was not fatal, and that the appeal might be amended, but the court held otherwise, and disinissed the appeal. In the present case the defendants are named in the writ in almost every instance by such designations as B. Dreyfus & Co., Corning & Co., John Osborn, Son & Co., and so on. We should bave no hesitation now, under section 1005 of the Revision, which became a law by the act of June 1, 1872, after the case of The Protector was decided, to permit the plaintiff in error to amend if there was anything to amend by. But the transcript of the record before us shows that these parties came into the circuit court as defendants or intervenors, and prosecuted their rights throughout the whole proceedings by the designations applied to them in this writ of error, and by no other names whatever. No amendment of the writ to remove this difficulty can, therefore, be made from the record before us.
If the plaintiff in error bas a just foundation for his assertion of error in the judgment against him, it would be a great and apparently irremediable injustice to dismiss his writ. The present case differs from that of The Protector, the latest on the subject, for, in that case, the record showed that William A. Freeborn, James F. Freeboru, and Henry P. Gardner were the libelants whose libel was dismissed, and no good reason is to be seen why they did not bring their appeal in those names instead of William A. Freeborn & Co. In the case of Smith v. Clark, the objection relied on in the opinion of the court, (12 How. 21,) is that this form of appeal showed to the court that there were other parties to the decree below not named, and therefore not brought before this court by the appeal. Neither of these cases cover the present. In this case the plaintiff in error gives his own full name, and he
is the only plaintiff. He describes in his writ of error all the parties opposed to him, by the names and designations which they gave themselves in their pleadings, motions, and proceedings in the court below, and by which they are mentioned in the judgment wbich distributes to them the money that he asserts should rightfully go to him. We are not advised, as in the Freeborn Case, by the record that the appellants had other names than Freeborn & Co., nor, as in the Darneale Case, that there were others who were attempted to be made parties by that word, with no other designation.
We think that, where the writ gives all the names of the parties as they are found in the record of the case in the circuit court, and where there is nothing to show that any other person was a party than such as are so named, this court is not at liberty to indulge the presumption that there were others who were parties, when such presumption is not founded on anything in the
record and would lead to a manifest injustice. 9. The motion to dismiss is overruled, and the case is one to be heard on the
merits, and not to be affirmed on motion. Both motions are, therefore, de nied.
(113 U, S. 609) CALIFORNIA ARTIFICIAL STONE PAVING Co. O. MOLITOR. (Two Cases.)
(March 2, 1885.) PRACTICE-DIFFERENCE OF OPINION IN THE COURT Below.
The difference of opinion in the court below, which may be certified to the supreme court, is not a difference of opinion on the general case, but only a differ
ence on a special point of law, which can be distinctly stated. Section 652, Rev. St. Appeal from and in Error to the Circuit Court of the United States for the District of California.
M. A. Wheaton, for Paving Co. E. M. Marble, for Molitor. *BRADLEY, J. A bill was filed by the appellant in this case against the appellee, complaining that the latter had infringed, and continued to infringe, certain letters patent granted to one John J. Schillinger, and which had been assigned for the state of California to the complainant. The patent was for an improvement in concrete pavement, and was originally issued July 19, 1870, and reissued May 2, 1871. The improvement, as described in the reissued patent, consisted in laying the pavement in detached blocks, separated from each other by strips of tar paper, or other suitable material, so as to prevent the blocks from adhering to each other. As stated in the specification, “the paper constitutes a tight water-proof joint, but it allows the several blocks to heave separately from the effects of frost, or to be raised or removed separately, whenever occasion may require, without injury to the adjacent blocks. Prior to this invention, it seems, from the statement of facts mado by the court, that concrete pavements had been made in one continuous sheet, without being divided into blocks, whence it was liable to crack in irregular directions, and to break up in such a manner as to render it useless. The specification of the reissued patent contained the following clause: “In such cases, however, where cheapness is an object, the tar paper may be omitted, and the blocks formed without interposing anything between their joints as previously described. In this latter case the joints soon fill up with sand or dust, and the pavement is rendered sufficiently tight for many purposes, while the blocks are detached from each other, and can be taken up and relaid, each independent of the adjoining blocks;" but this clause had been disclaimed by filing a disclaimer in the patent-office. The patent had two claims, as follows: “(1) A concrete pavement laid in detached blocks or sections, substantially in the manner shown and described; (2) the arrangement of tar paper, or its
IS. C. 8 Fed. Rep. 821.