53.

Opinion of the Court.

construction and application of the Constitution, as well as others upon which the case might go to the Circuit Court of Appeals under the Circuit Court of Appeals Act, two appeals were not allowed, and the judgment of the Circuit Court of Appeals was final if the case was taken there, and the jurisdiction originally invoked rested solely upon grounds which by § 6 of the Circuit Court of Appeals Act (§ 128, Judicial Code) made its judgment final. Macfadden v. United States, 213 U. S. 288; Robinson v. Caldwell, 165 U. S. 359; Loeb v. Columbia Township Trustees, 179 U. S. 472; American Sugar Refining Co. v. New Orleans, 181 U. S. 277; Boise Water Co. v. Boise City, (No. 2), 230 U. S. 98.

Under the original Alaska Act, cases involving the application of the Constitution were directly reviewable in this court, and those reviewable by the Circuit Court of Appeals for the Ninth Circuit were by the terms of the act made final in that court. The Judicial Code, which is primarily a codification of former statutes, carried the provisions of these sections into that code with the change which made all criminal cases, capital as well as others, final in the Circuit Court of Appeals. Itow v. United States, 233 U. S. 581.

We think Congress in enacting the Judicial Code contemplated no change as to the finality of the judgments of the Circuit Court of Appeals for the Ninth Circuit in cases taken to that court from the District Court of Alaska.

The plaintiff in error might have taken a writ of error from this court to the District Court. (§ 247.) It did not choose to do so, and as the cases involved issues other than those relating to the Constitution, sued out a writ of error from the Circuit Court of Appeals. By the terms of § 134 the judgment of that court is made final.

The contention that the effect of this construction is to make the Circuit Court of Appeals a court of final jurisdiction in cases involving questions of the construction and

Opinion of the Court.

249 U.S.

application of the Constitution, is met by the suggestion that this court has ample power under the Judicial Code to review judgments of the Circuit Court of Appeals, made final in that court, by writs of certiorari. (§ 240.)

Reaching the conclusion that the judgments of the Circuit Court of Appeals were final in these cases, it follows that the writs of error must be

Dismissed.

ALASKA SALMON COMPANY v. TERRITORY OF

ALASKA.

ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH

CIRCUIT.

No. 151. Argued January 20, 1919.—Decided March 3, 1919.

Decided on the authority of Alaska Pacific Fisheries v. Alaska, ante, 53. Writ of error to review 236 Fed. Rep. 62, dismissed.

The case is stated in the opinion.

Mr. Warren Gregory, Mr. E. S. McCord and Mr. W. H. Bogle, for plaintiff in error, submitted.

Mr. George B. Grigsby, Attorney General of the Territory of Alaska, for defendant in error.

Memorandum by direction of the court, by MR. JusTICE DAY.

This action was brought in the District Court of Alaska by the Territory of Alaska to recover license taxes from the Alaska Salmon Company. Judgment was rendered

in the District Court in favor of the Territory. To review that judgment a writ of error was taken from the Circuit Court of Appeals for the Ninth Circuit. The Circuit Court of Appeals affirmed the judgment of the District Court. 236 Fed. Rep. 62. A petition for a rehearing was filed, and denied. Petition for writ of certiorari to the Circuit Court of Appeals was denied in this court. 242 U. S. 648.

The writ of error must be dismissed. The judgment of the Circuit Court of Appeals for the Ninth Circuit was final for the reasons set forth in Nos. 117 and 118, just decided, ante, 53.

Dismissed.

WITHNELL v. RUECKING CONSTRUCTION COMPANY.

ERROR TO THE SUPREME COURT OF THE STATE OF MISSOURI.

No. 142. Argued January 16, 1919. Decided March 3, 1919.

When an assessment for a local improvement is made in accordance with a fixed rule prescribed by legislative act, the property owner is not entitled to be heard in advance on the question of benefits. P. 68. Within this principle, an assessment made in accordance with the rule prescribed by the charter of the City of St. Louis is legislative in character, since that charter, having been adopted by direct vote of the citizens under a special provision of the Missouri constitution, has, as respects local assessments, all the force of a legislative act. P. 69. St. Louis v. Western Union Telegraph Co., 149 U. S. 465. The method of assessing part of the cost of local improvements according to frontage, as provided in the St. Louis charter, is unassailable, under the previous decisions of this court. P. 70. Gast Realty Co. v. Schneider Granite Co., 240 U. S. 55; s. c., 245 U. S. 288. Objections based on the manner of laying out an improvement district, and on alleged failure to conform with the city charter, raise only local questions. P. 70.

Argument for Plaintiff in Error.

249 U. S. The system of area assessment provided by the St. Louis charter (Gast Realty Co. v. Schneider Granite Co., 240 U. S. 55) is not per se obnoxious to the Fourteenth Amendment, and becomes so in its application only when the results are palpably arbitrary or grossly unequal. P. 71.

269 Missouri, 546, affirmed.

The case is stated in the opinion.

Mr. Edmund T. Allen and Mr. Clifford B. Allen, for plaintiff in error, submitted:

An ordinance providing for the apportionment of the cost of an improvement must, in order to be valid, provide some rule capable of producing reasonable equality between the parties assessed, and a fair distribution of the taxes proportionately to the benefits received. Gast Realty Co. v. Schneider Granite Co., 240 U. S. 55; Myles Salt Co. v. Iberia Drainage District, 239 U. S. 478; Wagner v. Baltimore, 239 U. S. 207; St. Louis & Kansas City Land Co. v. Kansas City, 241 U. S. 419; Houck v. Little River Drainage District, 239 U. S. 254; Martin v. District of Columbia, 205 U. S. 135, 139; Raymond v. Chicago Union Traction Co., 207 U. S. 20.

The ordinance in this case is invalid because the rule it applied to defendant's property did not produce reasonable equality between the parties assessed, and was not based upon the idea of benefits, equality and justice. The same tax was levied on property 297 feet away from the street to be improved as was levied upon property within a foot of it. Gast Realty Co. v. Schneider Granite Co., supra; Norfolk County Water Co. v. Norfolk, 246 Fed. Rep. 652; Norris v. Montezuma Valley Irrigation District, 248 Fed. Rep. 369, 372; Bush v. Branson, 248 Fed. Rep. 377, 380; Dietz v. Neenah, 91 Wisconsin, 422; White v. Gove, 183 Massachusetts, 333.

The ordinance is void because it applied a vicious, arbitrary, and unjust rule to the defendant's property,

63.

Argument for Defendant in Error.

and its application thereto results in gross inequality and injustice, and practical confiscation.

The City of St. Louis is a political subdivision of the State of Missouri. Northcut v. Eager, 132 Missouri, 265; Steffen v. St. Louis, 135 Missouri, 44; Straub v. St. Louis, 175 Missouri, 413.

There was no opportunity afforded defendant to be heard upon the validity of the tax, and the amount of the assessment. Collier Estate v. Western Paving Co., 180 Missouri, 375; Meier v. St. Louis, 180 Missouri, 391; Houck v. Little River Drainage District, 248 Missouri, 373.

The landowner must have an opportunity to be heard as to the validity and apportionment of a special assessment for local improvements, before it becomes a lien on his property. "The law itself must save the parties' rights, and not leave them to the discretion of the court as such" in a suit to enforce the lien. Security Trust Co. v. Lexington, 203 U. S. 323; Coe v. Armour Fertilizer Works, 237 U. S. 413; Londoner v. Denver, 210 U. S. 373; St. Louis & Kansas City Land Co. v. Kansas City, 241 U. S. 419; Embree v. Kansas City Road District, 240 U. S. 242; Roller v. Holly, 176 U. S. 398; Louisville & Nashville R. R. Co. v. Central Stock Yards Co., 212 U. S. 132; Fallbrook Irrigation District v. Bradley, 164 U. S. 112; State v. Colbert, 273 Missouri, 198; Sandersville v. Bell, 146 Georgia, 737; Bouslog v. Gulfport, 112 Mississippi, 184; Violet v. Alexander, 92 Virginia, 561; Stuart v. Palmer, 74 N. Y. 183.,

Mr. Frank B. Coleman, with whom Mr. George M. Block was on the brief, for defendant in error:

The charter of the City of St. Louis and the powers therein conferred upon the City with respect to municipal matters, including special assessments for local improvements, are an express grant by the constitution of Missouri, and these powers, when exercised by the City, are legislative powers as distinguished from delegated powers.