Field v. Barber Asphalt Paving Co.

after making the foregoing statement, delivered the opinion of the court.

A motion was filed by the appellant to dismiss the appeal of the paving company, which was postponed to the hearing of these appeals upon the merits. An examination of the motion and a consideration of the briefs filed and arguments made in support of and in opposition to the same leads us to the conclusion that it cannot be sustained. The appellant appealed directly to this court; for while there was an allegation of diverse citizenship in the bill, jurisdiction was also invoked on the constitutional grounds above stated. This made the case appealable directly to this court under section 5 -of the act of March 3, 1891, 1 Comp. Stat. U. S. 549, as one which “involves the construction or application of the Constitution of the United States.”

The contention is that the prayer of the complainant on the constitutional grounds having been denied, the appeal of the respondent should have been to. the' Circuit Court of Appeals. But we cannot agree to this view. There w$s no cross bill filed in the case and hone was required. The bill of complaint contained, allegations sufficient to make a case of alleged violation of constitutional rights. It is well settled that in such cases the entire case may be brought to this court by the appeal. In Holder v. Aultman, 169 U. S. 81 , 88, discussing the act of March, 1891, Mr. Justice Gray said:

. “Upon such a writ of error, differing in these repects from a writ of error to the highest court of a State, the jurisdiction of this court does not depend upon the question whether the right claimed Under the Constitution of the United States has been upheld or denied in the court below; and the jurisdiction of this court is not limited to the constitutional question, but

includes the whole cáse. Whitten v. Tomlinson, 160 U. S. 231 , 238; Penn. Ins. Co. v. Austin, 168 U. S. 685 .” Loeb v. Columbia Township Trustees, 179 U. S. 472 . See also Chappell v. United States, 160 U. S. 499 , 509; Horner v. United States, No. 2, 143 U. S 570 , 577.

If, therefore, the whole case can come to this court by direct, appeal under the allegations of this bill, and if all the questions, Federal or otherwise, may come up on such appéal, it must follow that either party aggrieved by the decision may appeal, and in this case, the complainant appealing, a cross appeal may be sued out by the defendant as to the matters decided in the same case against him. If he fails to take such appeal the correctness of the decision as against him will be presumed. Mail Company v. Flanders, 12 Wall. 130 ; Chittenden v. Brewster., 2 Wall. 191 , 196.

The motion to dismiss the cross appeal must be denied.

Coming to the merits of the case, the grounds of Federal relief will first be considered. It is claimed that certain sections of the act of the general assembly of Missouri, which make the tax bills levied to pay the contract price for the paving a lien upon the complainant’s real estate, deprive'him of his property without due process of law, and deny to him the equal protection of the laws. This argument is predicated on section 5989 of the Revised Statutes of Missouri.

The exact point of objection is that the improvement is not to be made if a majority of the resident owners of the property liable to taxation therefor shall file with the city clerk a protest against such improvement, which privilege of protest is not given to non-resident owners, thereby discriminating against them. It is well settled, however, that not every discrimination of- this character violates constitutional rights. It is not the purpose of the Fourteenth Amendment, as has been frequently held, to prevent the States from classifying the subjects of legislation and making different regulations as to the property of different individuals differently situated. The provision of the Federal Constitution is satisfied if- all

Further objection on Federal grounds is urged, in that the specification of Trinidad Lake asphalt for this improvement is in violation of the interstate commerce clause of the Constitution of the U lited States, and .of the so-called Sherman Act of July, 1890. The right to provide for this paving was vested by the Missouri statute in the board of aldermen. The right to select the material for the paving was vested in that body; they saw fit to choose Trinidad Lake asphalt for the paving. Their right so to do,- under the charter powers of such cities as Westport, notwithstanding competitive bidding is thereby rendered impossible, has been sustained by the Supreme Court of Missouri. Barber Asphalt Paving Co. v. Hunt, 100 Missouri, 22; Warren v. Paving Co., 115 Missouri, 572; Verdin v. St. Louis, 131 Missouri, 26. With the wisdom of this choice-the courts have nothing to do, and in this case we are only concerned to inquire as to the alleged violation of Federal rights

The attempt to invoke the provisions of the Sherman Act in this case is equally unavailing. That act has been recently ■considered in the' Northern Securities cases, decided at this term, and its construction and the nature of the remedies under it determined. It is not intended to affect contracts which have a remote and indirect bearing upon commerce

In addition to the ground by which Federal jurisdiction was established in the courts below, it is alleged that the tax-bills should be held void because they were obtained by undue influence of the agents of the paving company, improperly exercised to obtain the needed municipal action. The court below held, and an examination of the‘testimony-has brought •us to the same conclusion, that there was nothing in the case to establish the charges of fraud and corruption, although the record does show that an agent of the defendant company. was active and jferhaps influential in obtaining signatures' to the petition which specified Trinidad Lake asphalt for this improvement ; yet in the absence of proof of fraud or corruption we do not think the contract and resulting, levies can be set aside for this reason. It is one thing to disapprove of such measures as a matter of propriety of action, but quite another to set-aside a contract, especially after the full performance'of its terms.

Upon the cross appeal, the learned judge in the court below held that the Wyandotte street tax bills were void, because that street had been previously paved with macadam in the years 1892-1893, four or five years before, the asphalt paving ■ was laid, which macadam he found to be in good condition, and but little worn. The effect of this decree was while finding against complainant as to the allegations of fraud and collu- . sion in obtaining the contract, to hold that, in the opinion of the trial judge, the repaving of Wyandotte street was unnecessary. We think this conclusion overlooks the fact that the power.to construct, improve and pave streets was vested by the law of Missouri, as it generally is, in the board of aider-men. (Laws of Missouri, ■ 1895, 65, § 85 to § 95, inclusive.) The necessity of such improvements is a matter of which they are the exclusive .judges, and their judgment is not to be interfered with, by the courts, except in cases of fraud or gross abuse of power.. This power of the city board is a continuing

As we have said, there may-be cases of fraud or arbitrary abuse of power, when the courts, will, intervene. Under other circumstances the municipality and property owners interested are bound by the acts of their agents. The authorities amply sustain this view. 2 Dillon Mun. Corp. (4th ed.) § 686; Wabash R. R. Co. v. Defiance, 167 U. S. 88 ; Skinker v. Heman, 148 Missouri, 349; Warren v. Paving Co., 115 Missouri, 572, 580.

Applying the principles settled by the authorities to the facts disclosed in this case, we do not find such evidence of fraud or gross abuse of power as would warrant the setting aside of the'tax bills for this improvement. The testimony tends to show that the macadam was considerably worn; its replacement, to the extent, of laying an asphalt pavement on top of it, was deemed necessary by the city authorities. It does not appear that any protest or objection was made during the progress of the work. A majority of the resident owners of lots abutting, upon the part- of the street to be improved had petitioned for the asphalt pavement. There is considerable

The court below, having properly held that- the case alleged must fail on the other grounds, should have regarded the judgment of the board of aldermen as. to the necessity of repaving Wyandotte street as conclusive -upon it. The conclusion reached renders it unnecessary to consider whether the complainant, having failed to protest or object to the work before it was begun or during its progress, can be heard • in á court of equity to object to the tax bills assessed for the benefit of the contractor after the work is completed in compliance with the contract.

We think the court below erred in adjudging the tax bills . on Wyandotte street to be void, and so much of the decree is reversed with costs, the decree as to. the other streets is affirmed, and the case remanded to the court below with instructions to dismiss the bill.