GANGER v. CITY OF MIAMI

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Argument of Thomas H. Anderson

Chief Justice Earl Warren: Number 153, Norton R. Ganger, et al., Appellants, versus City of Miami.

Mr. Anderson, you may proceed.

Mr. Thomas H. Anderson: Mr. Chief Justice, may it please the Court.

There, on two consolidated appeals here, which seek to review two decisions of the Supreme Court of Florida, these decisions replaced two decrees of the Circuit Court of Dade County.

The decrees in the Circuit Court of Dade County were entered in two suits, both brought against the City of Miami.

One suit was brought by Ganger as a class action.

The other suit was brought by Hamilton as a class action.

Both suits challenged the legality of certain special assessments which the City of Miami had laid upon the properties of persons owning property along certain streets in the town.

And the gravamen of the complaints in both cases were that there were no special benefits acclaimed to the property owners as a result of the -- of the proceedings and that the property owners had no notice of the administrative proceedings which resulted in the imposition of the assessment liens.

Justice William O. Douglas: Where did you raise your federal question?

Mr. Thomas H. Anderson: We raised it throughout, Your Honor.

Justice William O. Douglas: Through what?

Mr. Thomas H. Anderson: Throughout the entire case.

Justice William O. Douglas: Well, just one -- just one place will be enough.

Mr. Thomas H. Anderson: We raised it in the complaint.

It was raised in the assignments of errors in the Supreme Court of Florida by the City of Miami.

It was discussed by the Supreme Court of Florida in its first and second opinions.

We raised it in our petition for rehearing in the -- on the last and first opportunity that we had to do so and there is no question but the federal question is implicit in the entire case.

Justice John M. Harlan: Where is it raised in the complaint?

Mr. Thomas H. Anderson: It's raised in the complaint in paragraph -- in paragraph 12 on page 6 of the record, which the -- the complaint alleges that the special assessment lien sought to be imposed upon the abutting property owners in highway improvement district H477, are illegal and void and constitute taking this property in violation of the Constitution of the United States and the State of Florida upon the following grounds, (a), (b), and (c) on page 7 of the record, the notice was published in an inconspicuous place upon the classified advertising section of the Miami Herald, the position in which it was least likely to attract the attention of persons such as the plaintiffs and those on whom this -- on whose behalf this suit was brought.

And the court below found, that is the Circuit Court of Dade County, found that the notice was insufficient as a matter of law and set aside the assessments upon that ground.

Now, Your Honors, you have, of course, anticipated me, in the presentation of the federal question involved, which is whether or not, a municipality in the imposition of the special assessment lien may use as the only notice which it gives to the affected property owners that published on the local newspaper where the owners are residents of the area in which the proceedings are brought and their names and addresses are in the possession of the city.

The facts in the case are briefly these.

The City of Miami decided to resurface certain arterial highways which had become worn thin and to make the same more suitable for the passage of traffic.

The streets had originally been put in at the cost of the abutting property owners who had paid for the entire amount, except for the intersection.

So the city proceeded onto its charter to do the work and that determination of the work laid in assessment upon the abutting property owners.

Within 60 days after the imposition of the liens and the receiving of the notices which was sent to them by mail, although the only notice that they received was in the newspaper.

Within 60 days after they received the bills, the property owners organized themselves into two groups and proceeded to bring these separate actions challenging the legality of these assessments.The city defended the suits upon the ground that the property owner were estopped to allege and to prove that these assessments did not result in benefits to their properties.

Of course, so the city said and the city charter provides that the property owners would have notice by -- by notices published in the local newspapers and that the notices were so published.

The Circuit Court after taking a substantial amount of testimony, found contrary to the city's position in both cases and enter decrees in which it found that there were no benefits included to the properties, no special benefits included to the properties as a result of the resurfacing that it had been done to facilitate the flow of traffic, that the work had actually been paid for by surfaces accumulated from budgetary estimates in prior years, that the notices were insufficient as a matter of law and enjoined the collection of the assessments.

Justice Tom C. Clark: When you say notices, you mean both of them?

Mr. Thomas H. Anderson: Both of them.

There were two notices in the course of the proceedings, both published in the local -- local newspapers, Justice Clark.

The city appealed to the Supreme Court of Florida from that decree or from those decrees.

And the Supreme Court of Florida affirmed the decrees by a divided court that is 4-to-3, on a nonfederal ground.

The majority opinion in that case expressly said, "That the Court recognized that in some stage in the proceedings in order to satisfy the requirements of due process, notices had to be given."

But he said, "The notices were given as was required by the statute and therefore, that part of the decree, they said, was wrong and they disagreed with the chancellor.

Justice John M. Harlan: Am I wrong, I thought that the complaint dealt only with the first notice?

Mr. Thomas H. Anderson: Mr. Justice Harlan, the complaint does only set out that first notice.

Justice John M. Harlan: The first notice.

Mr. Thomas H. Anderson: But in the trial of the proceedings, the entire administrative proceedings were introduced in evidence.

And the -- and the proceedings show that both notices were published in the local newspapers so the same vice attaches to the second notice as it did to the first.

And I think the court below treated it all as one receipt and one notice, which in fact it was, although, there were two separate stages of the game at which the notice was given.

Justice William J. Brennan: Well, why -- why work in those?

In fact does it --

Mr. Thomas H. Anderson: Well, Mr. Justice Brennan, I shall briefly at this point explain to you or to -- to the Court the -- the machinery of the city charter, if I may, it may interest the Court to hear it.

Briefly, the proceedings provided for all these, when the city decides to -- to initiate a public improvement such as the resurfacing or the painting the street, it adopts what is known as an initiating resolution and it gives the property owner notice of the fact that that resolution has been adopted and requiring him, if he so desires, to appear and contest it.

Now, the notice does not -- is not required to specify any names or any individuals and the notice, in this case, was published directed to or whom it may concern or some such vague reference as that.

All persons interested may take notice.

Then when the initiating resolution has been confined by a resolution, the city then proceeds to offer or to invite bids for the doing of the work.

And when they are received, they decide then either to let to work out on contract, its own, or to let a contract for the doing of the work by said persons.

Then when the work is done and during that course of time, a special assessment role is made up.

And when the work is completed and the cost of doing the work has been exactly determined, a special assessment rule, a preliminary rule is corrected to show the actionable facts, and then the city gives another notice.

This time, twice in a daily newspaper published in the city.

And at that time, the property owners are required to come and register their objections if they have any, to the imposition of these assessment liens.

And if their objections are overruled, they may then, within 10 days after the confirmation of the rule, bring a special proceeding in the Circuit Court of Dade County to the Circuit Court, in which they may challenge the legality of the assessment.

And in that proceeding, the Circuit Court has jurisdiction to review the entire matter and to set aside the assessment either as to individual lots or upon the entire district.

That procedure was followed in this case with the result that I theretofore state.

So --

Chief Justice Earl Warren: Mr. Anderson --

Mr. Thomas H. Anderson: Yes, sir.

Chief Justice Earl Warren: -- under the charter, does that -- is that initial resolution required to show the time and place at which they must object?

Mr. Thomas H. Anderson: On the -- the statutory charter of the City of Miami is, in our opinion, vague on that point.

It simply says that a notice shall be given to all whom -- to all interested that at certain time and place, the -- their objections will be heard, but the notice in this case simply read as follows.

And this was one of the points --

Chief Justice Earl Warren: Well, I -- I want to go to that first part.

It does require --

Mr. Thomas H. Anderson: It does require.

Chief Justice Earl Warren: -- that is the -- they give -- they give them notice of the time and place at which it must be heard.

All right, now, you can tell me about the resolution.

Mr. Thomas H. Anderson: Now the -- the notice stated that the -- that all interested will take notice that at the meeting of the city commissioner at 9:30 -- o'clock a.m., March the 4th, 1953, their objection will be heard to the confirmation of the preliminary assessment rule for the cost to the painting of the improvements on the following avenues.

Chief Justice Earl Warren: Now, is that the first resolution?

I -- that is the --

Mr. Thomas H. Anderson: The similar -- similar notices were published with respect to both of them.

Chief Justice Earl Warren: Yes.

The -- the first one specified a particular meeting, did it?

Mr. Thomas H. Anderson: But as Your Honor may have observed, it didn't specify any place.

Chief Justice Earl Warren: Well, that's what I asked you, if (Voice Overlap) --

Mr. Thomas H. Anderson: Well, if a notice does not --

Chief Justice Earl Warren: (Voice Overlap) --

Mr. Thomas H. Anderson: The notice did not do that.

Chief Justice Earl Warren: But your charter requires it?

Mr. Thomas H. Anderson: That's my recollection of it.

I'm not entirely clear about the precise language of that charter.

Chief Justice Earl Warren: All right, you may (Voice Overlap) --

Mr. Thomas H. Anderson: We have it here in the appendix to the -- to the brief.

And with Your Honor's indulgence, I will -- I will read.

“A notice stating at a regular meeting of the Commission held on a certain day and not last than 12 days from the date of the first publication, all interested persons may appear and file written objections to the confirmation of the rule.”

So, as Your Honor will see, there's no special requirement in the charter that the time and place of the meeting be specified in the notice.

And the notice does comply with the city charter.

Now, I have proceeded through the case to the point where the Supreme Court of Florida has affirmed the decree, but I did not tell the Court the ground on which that is reversed or funded.

But I did not tell the Court the grounds on which that affirmation rested.

The majority opinion said that the City of Miami, under its charter, had no statutory power to assess for resurfacing as distinguished from repeating.

And so the decree was affirmed upon a work or statutory power in the city.

One of the justices filed a especially concurring opinion in which he said that evidence are bounded to support the Court's finding that there were no special benefits in support for this assessment.

And on that ground, he was willing to put his position.

And, of course, the law had plain that if there were no benefits, there was no constitutional basis for the -- the assessment, whether the party had noticed or not.

The city petitioned for rehearing.

And in the petition for rehearing, it is asserted that the judge who had filed this concurring opinion and whose presence on there side was essential because they were four from outside and three at fault, that that judge had overlooked the fact that the notice has been given as required by the charter.

And so on the strength of that petition for rehearing, a -- a rehearing was granted.

And when the cause came on to be heard on rehearing, we obtained -- we filed with the court a brief, a printed copy which I have here, certified to by the clerk of the court, in which I should like to ask Your Honors' leave to file with the Clerk of this Court, in which we precisely raised the question decided by this Court in the city -- or in Walker against the City of Hutchinson and called this -- the Supreme Court of Florida's attention to the fact that that assertion had been entered in this case.

Justice Charles E. Whittaker: You're talking about the rehearing?

Mr. Thomas H. Anderson: That was on the -- or it was at the time when the rehearing had been granted, but at that time with argument on it.

Justice John M. Harlan: What does the subsequent action of the Supreme Court mean granting the appellant's motion to strike that brief within the --

Mr. Thomas H. Anderson: That was not the brief they struck, Justice Harlan.

Justice John M. Harlan: Oh, it was not?

Mr. Thomas H. Anderson: I'll come to that in a moment.

Justice John M. Harlan: Yes.

Mr. Thomas H. Anderson: On rehearing, they granted -- on rehearing granted, the Court reversed the decree.

The judge who had filed the specially concurring opinion reciting the award of benefits, having joined the minority and thereby constituted a majority of the Court which reversed the case and held that the property owners were estopped by the administrative proceedings to show the award of benefits and all.

Now, at that point then, and this was for the first time that the appellants here had had an opportunity to bring this matter squarely to the Supreme Court of Florida's attention.

At that point, the appellants here, petitioned for rehearing on their own account and expressly alleged in the petition for rehearing, which is in the record on page 65, paragraph 4, they expressly alleged in the petition for rehearing that the Court failed that in holding that the notice of the confirmation of the assessment rules sufficient and that the appellees were estopped to challenge the lack of benefits because they had failed to object pursuant to the notice, the Court overlooked or failed to consider that the procedure for the imposition of assessment lien is quasi-judicial, and that the requirements of procedural due process guaranteed by Amendment Fourteen of the U.S. Constitution, must be complied with.

In the case of resident's constructive notice, as attempted, is violative of the rights secured by such amendment citing Walker against City of Hutchinson and Mullane against Central Hanover Bank and Trust Company.

It might not be --

Justice Potter Stewart: Up to this -- excuse me, Mr. Anderson, up to this point, should -- you'd -- you'd won in -- in both in the lower court and in the Supreme Court of Florida.

Mr. Thomas H. Anderson: That is correct, Mr. Justice Stewart.

Justice Potter Stewart: So you accept your original complaint which to -- which you've already called our attention.

You'd had no occasion to complain about any constitutional deprivation until this time.

Is that correct?

Mr. Thomas H. Anderson: That is correct, Mr. Justice Stewart, except that I should like to call Your Honor's attention to this fact that in the -- in the conclusion to the brief which we had previously filed at the time the case was reheard on the same petition for rehearing, we stated in the conclusion that the notice was insufficient and deceptively published.

It was a formal process.

Being so, it was subject to constitutional requirements of due process.

Justice William O. Douglas: Where is that, the page?

Mr. Thomas H. Anderson: That is on page 52 of the brief that we filed in the Supreme Court of Florida and a certified copy of which I have here upon the file that was collected in this Court.

Justice Potter Stewart: Was that -- that was --

Mr. Thomas H. Anderson: And that is mentioned in our brief on the --

Justice Potter Stewart: That was in your adversary's petition for rehearing --

Mr. Thomas H. Anderson: -- petition for rehearing.

Justice Potter Stewart: Petition for rehearing.

Mr. Thomas H. Anderson: Yes.

Justice Potter Stewart: On which they finally prevailed, is that it?

Mr. Thomas H. Anderson: Yes.

Justice Potter Stewart: The Court went their way that time.

Mr. Thomas H. Anderson: That's right, Your Honor.

Justice Potter Stewart: Then -- and then what you just read us here on page 65 of the record is from the --

Mr. Thomas H. Anderson: Our petition for rehearing.

Justice Potter Stewart: -- subsequent petition for rehearing.

And this is the first time that the Court has gone against you.

Mr. Thomas H. Anderson: That's correct.

So it brings us squarely within the rules of Saunders against Shaw, (Inaudible) Trust Company case and the numerous other parts which is cited in our brief.

Justice John M. Harlan: Could I ask you a question?

Mr. Thomas H. Anderson: Certainly may, Justice Harlan.

Justice John M. Harlan: How long was this proceeding had ended?

Mr. Thomas H. Anderson: Pardon?

Justice John M. Harlan: Supposing this proceeding had ended with the decision in your favor in the -- in the nisi prius court, no appeal taken, could the city not -- notwithstanding, had come along on the second stage of its assessment proceeding and say well, all right, we're going to assess you, so as to put you in a position, therefore, where you had to attack the constitutionality of the lawfulness of the subsequent notice as distinguished in the first notice.

Mr. Thomas H. Anderson: Justice Harlan, I evidently, did not make myself clear when I attempted to answer Your Honor's question.

At the time that we brought the lawsuit, the entire administrative proceeding had been concluded, the work had been done, and the second notice and the confirmation of the assessment rule had been completed.

Justice John M. Harlan: Yes.

Mr. Thomas H. Anderson: The whole thing had been done.

Justice John M. Harlan: Yes.

Mr. Thomas H. Anderson: So when the Court made its final decree, everything was over and it was a final determination that the liens were no good.

It was only after the entry of that second notice --

Justice John M. Harlan: I understand that.

Mr. Thomas H. Anderson: Yes.

Justice John M. Harlan: But my problem -- my question is I don't know if there's a problem or not.

Up to that time, you had raised in your complaint only the first notice.

And as I understand, your -- prior, the Supreme Court said either in his first or second opinion, you were too late in raising the validity of the second notices -- the second notice.

Mr. Thomas H. Anderson: Your Honor, the whole proceeding in the court below was treated as though the final notice were the ones that were actually talked about.

Justice John M. Harlan: Yes.

Mr. Thomas H. Anderson: I agree with you that it was only the first notice which was specifically required to in the complaint.

Justice John M. Harlan: Yes.

Mr. Thomas H. Anderson: But actually, the case it was tried on the assumption that both notices were invalid.

Justice John M. Harlan: Well, I haven't found anything that indicates that you ever attacked the second notice.

Mr. Thomas H. Anderson: Well, it was all the same thing because it was virtually all the same notice.

They were just published at different stages of the proceedings.

But as far as the constitutional question was concerned, the notice was insufficient in both cases.

That is to say it was published in the newspaper and it did not contain the requirements of notice that we think the -- that the lower court --

Justice John M. Harlan: Yes, but if you're attacked on the first notice, it was not sufficient to put you out from under the assessment, absent and attack on the second notice.

What difference does it make that whether the first notice was good or bad?

Mr. Thomas H. Anderson: It doesn't make any difference except all -- everybody in the case has treated the matter as though the attack was upon the final assessment nor -- or liens based upon both notices.

As a matter of fact, in that regard, the first notice is immaterial.

I think and that perhaps on this impression that the first notice was referred to as it was in the complaint, because it's the second notice that is given at the time that the liens were enforced and that is the one substance -- substantially that the Court dealt with throughout the proceedings.

Justice John M. Harlan: Well, in other words, when you say the first notice was immaterial that means -- does that mean that even though the first notice was bad and the second notice was good, you still could be -- you still could be assessed, under your law, was it?

Mr. Thomas H. Anderson: Well, if the first notice was bad and the second notice was good, the assessment would be good.

Justice John M. Harlan: Would be good?

Mr. Thomas H. Anderson: Yes, sir.

Justice John M. Harlan: So you have -- you have to get rid of the second notice --

Mr. Thomas H. Anderson: That's --

Justice John M. Harlan: -- in order to be --

Mr. Thomas H. Anderson: That's correct.

Justice John M. Harlan: When you prevail and --

Mr. Thomas H. Anderson: That's correct.

Justice John M. Harlan: -- that would be your local law.

Mr. Thomas H. Anderson: That's correct.

And the second notice --

Chief Justice Earl Warren: Well, I understand you that the second notice has the same infirmities as the first?

Mr. Thomas H. Anderson: Same vice.

It was all treated as the same matter.

Justice Potter Stewart: But have you -- it is true, isn't it, that your complaint didn't refer to the second notice?

Mr. Thomas H. Anderson: I agree with that.

Justice Potter Stewart: And now, how about your Florida practice?

Is there reamendment or implicit amendment to confirm and approve, amendment of (Voice Overlap) --

Mr. Thomas H. Anderson: Yes, we held a number of rules for that, but the Court treated the matter as though it was just the same thing, Your Honor.

There never has been any differentiation in the Court or anywhere about this first and second notice until this moment.

Nobody -- we've all regarded as simply the same thing, because the vices are here in both notices.

Justice Charles E. Whittaker: Mr. Anderson.

Mr. Thomas H. Anderson: Yes, Justice Whittaker.

Justice Charles E. Whittaker: As I understood your answer to Justice Harlan, you must get to live off or strike down the validity of the second notice to win.

Is that right?

Mr. Thomas H. Anderson: That's correct.

Justice Charles E. Whittaker: But do you want us to challenge it, physically?

Mr. Thomas H. Anderson: Justice Whittaker, if I may be pardoned for saying so, I think that the attention which the Court maybe given to this first notice at the moment is somewhat immaterial for this reason.

It is a fact that the first notice is the only that's referred to in the complaint.

But it is a fact that the complaint alleges in paragraph 12, which I read to you from page 6 of the record, that the special assessment liens sought to be imposed were unconstitutional and void because for the several reasons including the fact that the notice was published in an conspicuous place from the classified advertising section of the Herald.

Now, the liens could not have come into existence until after the giving of the second notice.

And so what, in effect, happened was that in framing the complaint, the first notice in 1950 was picked up instead of the one in 1952.

But it's all the same form of notice and then -- and both notices at the beginning and the end have the same vices.

And the whole matter was so treated by all the courts below.

Justice Felix Frankfurter: But the fact of the notice is published twice.

They make a different -- present a different legal problem, if the notice was published only once.

Mr. Thomas H. Anderson: Not under the doctrine of the Walker or Walker against the City of Hutchinson and the Wisconsin Electric Power Corporation against the City of Milwaukee, Justice Frankfurter.

Justice Felix Frankfurter: To refresh my recollection, the Walker case where there's --

Mr. Thomas H. Anderson: Lack --

Justice Felix Frankfurter: Were there two publications?

Mr. Thomas H. Anderson: In the Walker case, there was a publication in the city -- the city had an official journal.

Justice Felix Frankfurter: Yes.

Mr. Thomas H. Anderson: But the court case did not turn upon the number of publications, for example, in New York and New Haven Railway Company case, there was a publication twice.

Now --

Justice Felix Frankfurter: Well, I don't deny you -- are you laying it down as a matter of laws, that because the notice once would be inadequate, the same notice quite, would also be inadequate?

Mr. Thomas H. Anderson: As far as resident property owners are concerned, yes, Your Honor.

Justice Felix Frankfurter: But why is that so?

Mr. Thomas H. Anderson: Well, because --

Justice Felix Frankfurter: It maybe so, but must have been so?

Mr. Thomas H. Anderson: Yes, Your Honor.

Justice Felix Frankfurter: Why?

Mr. Thomas H. Anderson: Because as Justice Jackson observed in the Mullane case, chance, although one, brings to the attention of a person in -- within the -- the confines of a -- a jurisdiction or a notice on the newspaper that his rights are being affected.

Justice Felix Frankfurter: No, but that's in the main case of a very different one, if it's published only once, it was so much easier to turn out to the people whose names -- who gave their names.

As all the difference to work immediately as in -- do not be surprised to hear between notice of assessment for city taxes or levy and the kind of papers were involved in the Mullane.

Mr. Thomas H. Anderson: But Justice Frankfurter, the Mullane case was followed in the New Hartford Railroad Company case.

That case was followed by Walker against the City of Hutchinson which is awfully close to the point.

And all of the cases were followed as far as I know in some memorandum decisions and I can't answer otherwise in -- in Wisconsin Electric Power Corporation against the City of Milwaukee, which is a case directly in point.

Justice Felix Frankfurter: All I'm suggesting --

Mr. Thomas H. Anderson: Because it involved a special assessment.

Justice Felix Frankfurter: All I'm suggesting is that it may or may have a different situation on the fact with something that's public.

A group assessment's done as compared with public incomes and only one leadingly in a single newspaper.

And it may well be that that makes a principle that's predicated (Inaudible) that you say that two is just as valid as one, in all event, the courts below didn't face that question.

Mr. Thomas H. Anderson: Well, the Supreme Court of Florida has defined the -- the decisions or has reversed the decision upon the ground that the Constitution requirements of due process have been complied with and that is approximately, we have before this Court.

There is also a further question as to a violation of our rights under the Equal Protection Clause, which my partner will refer to in a few moments.

But let me go one step further and explain to the Court, if I may, about the holdings of this Court in the Wisconsin Electric Power Company case.

Justice John M. Harlan: Just -- just a detail, would you mind putting your finger on the record, the pages of record where you attack the second notice?I can't find it.

Mr. Thomas H. Anderson: Justice Harlan, there is no reference in the complaint to the second notice.

Justice John M. Harlan: Or anywhere else?

Mr. Thomas H. Anderson: Nowhere else, but the entire assessment rule and all of the notices were put in evidence by the defendant.

The defendant alleged that we were bound by the second notice.

Justice John M. Harlan: Where is that?

Mr. Thomas H. Anderson: That is in the defendant's answer at page 10 of the record.

And -- and you will find at page -- or rather page 13, as the answer starts at page 10.

“The answer alleges that the defendant further alleges that claims in each of them and each of those persons who plaintiffs purport to represent herein, will under the duty by reason to be improperly and legally notified to appealed object, to file their written objections with the city clerk of the defendants or the confirmation of the assessment rule as required by Section 56 (1) (m) on the said city charter and special act.

And it was on that ground if the case was tried.

And the court held that -- that --

Justice John M. Harlan: And where is it?

Your attack on the notice is -- is brought in by the defendant's answer that's --

Mr. Thomas H. Anderson: By his estoppel that he pleaded that we were bound by the administrative proceeding.

And --

Justice Charles E. Whittaker: And then -- then the city put the --

Mr. Thomas H. Anderson: They put the whole record in evidence including that notice and the antecedent notices.

And it was those notices it went to the Supreme Court of Florida and it was for the estoppel rising out of that notice of the Supreme Court of Florida held that we were bound by the administrative proceeding.

Now --

Justice Felix Frankfurter: How does that prove that you raised the invalidity of the second notice?

Mr. Thomas H. Anderson: Well, I -- I can only say this, Justice Frankfurter, that the city attacked the holding of the lower court on the sufficiency of the notice.

And the lower court held that the notice was invalid and I can only assume that the Court was talking about the second one, because otherwise the liens would not have been imposed.

And the lower court held that -- that was invalid.

The city assigned that holding as error and the Supreme Court of Florida says that they disagree with the Chancellor on that point.

Namely, that the holding -- that the notice was insufficient under the Due Process Clause.

But they said the city had no power solely when they -- so they have found the decree?

Then on rehearing in which the city called the Court's attention to the -- to the requirements of the charter and the sufficiency of the notice under the Due Process Clause, said the room -- the courtroom advised itself.

Then on now --

Justice Felix Frankfurter: That includes it a revision on the basis of two notices?

Mr. Thomas H. Anderson: Correct, Your Honor.

Correct.

Justice Felix Frankfurter: All right.

Now, you're challenging that here, although you didn't challenge this at all?

Mr. Thomas H. Anderson: It was not specifically mentioned in the complaint.

Justice William J. Brennan: But you did.

You made a direct attack in the second notice in petition for rehearing.

Mr. Thomas H. Anderson: Your Honor, I think it's perfectly clear that we brought this matter to the Supreme Court of Florida's attention, earn that petition for rehearing that their holding was contrary to this Court's holding in the cited cases.

Justice William J. Brennan: How --

Justice John M. Harlan: Well, let me put this question to you.

Mr. Thomas H. Anderson: Yes, Your Honor.

Justice John M. Harlan: It's true you raised it on your petition for rehearing.

And that's true that you got leave to file a special brief.

But it also seems to be true that after you filed a brief on the constitutional issue, the Federal Constitution issue that the Supreme Court of Florida struck it and that leads me to inquire whether they might have struck it on a state ground, namely, that your failure to attack the second notice had been untimely or could could've ever been made it all.

Mr. Thomas H. Anderson: No, Your Honor.

I -- I do not think so.

If you will observe from the record the -- the brief laying in the Supreme Court for a quite a long period of time before it was struck and a curious thing happened on that petition of rehearing, one of the justices who had been consistently against us throughout these proceedings, Justice Hudson, came over to our side.

And actually, we would have won the case at that point, I think, on the constitutional ground.

He voted to grant our petition for rehearing.

But by -- and one of those strange courts that -- or has never befallen me before, the Chief Justice, who had been on our side throughout the proceedings defected to the other side and so we still only have three --

Justice Felix Frankfurter: Did he change his mind?

Mr. Thomas H. Anderson: He changed his mind, Your Honor.

[Laughter]

Chief Justice Earl Warren: Mr. Nadeau.

Argument of Herbert L. Nadeau

Mr. Herbert L. Nadeau: Mr. Chief Justice, to please the Court.

I will, but briefly, dwell upon one phase of this case which occurred after the case was initially argued in the Supreme Court of Florida.

Quite by an accident from an article appearing in the Miami Herald, it was observed that the city had decided not to make any further special assessment for repaving.

That was in connection with two other districts.

So, we petitioned the Circuit Court of Dade County, Florida for a leave to take the deposition of the officers of the defendant's city.

That motion was granted and we proceeded to take the deposition of Mr. George Shaw, Financial Director of the City of Miami.

And in the course of that deposition, it was conceded our -- this -- this motion appears at page 58 of the record.

Justice Potter Stewart: Is this before the trial court --

Mr. Herbert L. Nadeau: Pardon sir?

Justice Potter Stewart: Is this before the trial?

Mr. Herbert L. Nadeau: No, sir.

This occurred after we had won the case in the Circuit Court.

After the case had been argued in the Supreme Court and when this matter came to our attention, we got leave of the Circuit Court, which is our lower court, to take the deposition.

And then we sought to supplement the record on appeal in the Supreme Court.

Justice William J. Brennan: What I'm trying to get at is this, before the first decision of your Supreme Court?

Mr. Herbert L. Nadeau: It was after the -- it was after the first decision in our favor, yes, sir.

Justice William J. Brennan: Of the Supreme Court?

Mr. Herbert L. Nadeau: Of the Supreme Court, yes, sir.

And I might say, I believe, it was after they had announced that they were going to hear -- had granted the city's petition for rehearing, but before it had been acted upon.

Now, that motion sets forth the fact that Darlow or that Shaw wrote a letter to Darlow with respect to District 508.

Informing him that -- that resurfacing was not going to be subject to a special assessment, but it was going to be paid out the proceeds of a bond issued to be guaranteed by revenues from the Florida Power & Light Company.

It is also significant in that letter that the city admits that their procedures there were void because they said, "Consequently, after the district was ordered and confirmed, we purposely failed to adhere to the charter requirement of hearing objections on the completed work.

Thus, in effect, made the district invalid as far as the assessments were concerned."

And then proceeded in the next paragraph to say that the City Attorney's Office had advice them not to do anything about the liens with respect to this new District 508, until this other litigation was disposed of referring to Hamilton and Ganger which were 447 and 503.

Now, the significance of this matter is this, in the Hamilton case which is 477 and the Ganger case which is 503, we are dealing with downtown streets in the City of Miami.

The City of Miami, the hub of it, is the corner of Flagler Street and North Miami Avenue.

And the avenues go north and the avenues go south.

North Miami -- North and South Miami avenue room -- run right up to the heart of town.

In this District 477, they levied an assessment on these downtown streets against these abutting property owners.

But when they come to District 508, which connects with North Miami Avenue, a very street which was inbound in 477 and in fact, took up where District 477 left off, they didn't make an assessment.

They paid it on the general funds.

And the logic of that is in the reverse, because the further North you get to Miami Avenue, the further out you are from the heart of town.

If logic were to prevail in this situation, it was the downtown property that should've been paid out, general funds and not the further outlying districts.

I say to this Court that I have never seen a municipality impose liens with such ranked discrimination as has been shown with respect to these two districts.

Thank you.

Chief Justice Earl Warren: Mr. Ferrell.

Argument of Milton M. Ferrell

Mr. Milton M. Ferrell: Mr. Chief Justice, may it please the Court.

It becomes necessary for me, due to the statements that have been made to you, to tell you that I'm sure counsel probably has forgotten what transpired, but statements had been made to you here that are not in accordance with the record in this cause.

Justice Harlan asked the question here as to why the appellant's brief.

It was the appellee then and the Supreme Court was stricken.

It was stricken on the motion of this city that no constitutional question was decided by the trial court and that this matter was not raised in the Supreme Court of Florida until a petition for rehearing.

Justice John M. Harlan: Is the -- as the copy of your motion --

Mr. Milton M. Ferrell: No, sir.

Justice John M. Harlan: -- papers are here in the record?

Mr. Milton M. Ferrell: It is not in this record.

We didn't make any interest into the record because we didn't know at that time that such a position would be taken in this brief, but we are certainly willing for the Court to get the truth of this for one to be filed.

We'll let counsel file his copy with this Court.

Because all we want you to get is the facts and we are perfectly willing for that to be done.

Now, the second thing here is this.

You will notice in his brief, or in their brief, where they set forth to you that the Supreme Court entertain their petition for rehearing and allowed a brief to be filed.

Now, that implies to you and leads you to believe that they considered such a brief.

They don't then tell you in their brief that it was stricken, but it -- it could be for no other purpose than to lead you to believe that such a brief was considered.

When in all truth and fact, it was stricken.

Now, the next thing to give you the history of this and I say this as to this record.

I didn't think it would help it any to bring all of the other case up here.

Now counsel prepared this record -- prepared and its two appeals, one of them is refer to as the Ganger appeal and one of them is the Hamilton appeal.

Now, you'll notice from the record that he prepared -- he brings up the complaint to you in the Hamilton case.

Yet, the Ganger case is the one that the Supreme Court applied or handed down the lengthy decision on.

The other one, the Hamilton case was affirmed on authority of the Ganger case.

Now, when you look at the notices in the back as to the exhibits and I want to give you how many of those notices there were, he's got -- he lost it with the first one, the Hamilton case, he picks up in those notices there to the Ganger case.

Now, here is the way this works, the city charter is an act to the --

Justice William J. Brennan: Well tell me, is there any difference between the complaints?

Are you implying what --

Mr. Milton M. Ferrell: No, sir.

I don't imply that it's any difference between the complaints other than the dates of the notice.

In other words, when you see the notices in the back under the Ganger decision, it shows you a longer period.

And that's what I'm coming at, as to how long they did have before these assessments became final.

Now, the city charter is an act of the legislature that was enacted here in 1925, because the city is a creature of the State.

Now, the first notice of -- of a resolution being passed on assessment in the Ganger case, it was on the Hamilton's -- let's see, this is the Hamilton case.

It was published on March the 4th, 1950, that's the first notice.

It sets forth that the City Commission will meet at a time certain in the future, at least, I believe, 10 days away.

And they are -- at that time, the matter of the assessment will come up.

That's the first thing.

Justice William J. Brennan: The assessment or the project, which?

Mr. Milton M. Ferrell: Sir, the resolution announcing the assessment.

Now, that --

Justice William J. Brennan: Well -- well, I just wanted -- I want to get this clear.

Perhaps, the -- you --

Mr. Milton M. Ferrell: This is for street improvement.

Justice William J. Brennan: That's what I mean.

In other words --

Mr. Milton M. Ferrell: Yes.

Justice William J. Brennan: -- that they -- that there will be a street improvement, that's all it is.

Mr. Milton M. Ferrell: Yes.

Justice William J. Brennan: It has nothing to do with the actual charges by way of assessment for the cost of --

Mr. Milton M. Ferrell: Well, no, that comes later.

Justice William J. Brennan: Yes, that's --

Mr. Milton M. Ferrell: I'll tell you how -- how this works, so if you will understand.

Now, that -- that came in March the 4th, 1950.

This amended complaint was filed December the 2nd, 1953 in the Hamilton case.

Now, that's the first thing.

He has assessed what had to be done in one of those cases.

Nobody appeared there to object.

Then, the advertisements are made by publication on bids.

Anybody can come and object to that because those people who have paid, they've got a right to know what this is going to cost.

Then later when that work is completed, it is published and they have that before the city accepts the job and paid the contract.

Because if that work hadn't been done properly, the property owners there have a right to object.

Now, after all that is done, specifications and everything and these notices have been -- it's been stated that they only filed with the city clerk.

Anybody can go examine it.

Now, the last thing they do before it becomes final is the tax role on notice is published on the preliminary tax role.

And everybody is given a chance to come and then -- and object whether or not, they have ever objected before.

Justice William J. Brennan: Well that's -- what's the notice on the tax role?

Mr. Milton M. Ferrell: Well, that means at that time, they get up the tax role.

This property may have changed hands reason -- in other words, it would be very cumbersome to the city, property changes hence, oftenly.

If you have to go down and check the owner each time, it would be a costly proposition which they would end up paying for property owner.

But this last publication then is on the tax role.

That's -- that's -- give it to you as to what it's going to cost you.

Justice Hugo L. Black: How do they get the notice from?

Mr. Milton M. Ferrell: By publication.

Justice Hugo L. Black: The tax roll?

Mr. Milton M. Ferrell: The tax roll are two -- there's two publications on this, the only notice that the other side of tax was the first notice of the assessment which is published once.

This last one is published twice, two successive weeks.

Justice Hugo L. Black: But there's no notice given to them by -- at the time when they would look at their technical assessment.

Is it -- (Voice Overlap) --

Mr. Milton M. Ferrell: Well, you see they haven't paid for this yet.

Justice Hugo L. Black: Nothing special on this.

I noticed two publications --

Mr. Milton M. Ferrell: Yes.

Justice Hugo L. Black: -- set to be up.

Mr. Milton M. Ferrell: Because nobody has paid after the work is accepted.

The city goes on and pays for all this way.

Justice Felix Frankfurter: May I --

Mr. Milton M. Ferrell: And then they just get their money back from the taxpayer.

Yes.

Justice Felix Frankfurter: There's a second notice concerned to the public twice?

Mr. Milton M. Ferrell: Twice.

Justice Hugo L. Black: Is it for --

Justice Felix Frankfurter: Where is it published?

Mr. Milton M. Ferrell: Sir?

Justice Felix Frankfurter: Where was it published?

Mr. Milton M. Ferrell: Well, it's published in a local newspaper and the statute sets out what kind of newspaper ought to be.

In -- in the matter of fact here, the record shows, it was published by the Miami Herald and the Miami News, the Herald being the largest paper in Florida and The News being the second largest in that part of its state.

Justice Felix Frankfurter: I know that, does it cover the territories or the decline of property owners?

I would know this (Voice Overlap) --

Mr. Milton M. Ferrell: Yes, sir.

It -- it gives you the --

Justice Felix Frankfurter: Within the record, what's published?

Mr. Milton M. Ferrell: Yes, sir.

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Milton M. Ferrell: (Voice Overlap) --

Justice Hugo L. Black: How would a man living in 6500 North 7th Avenue, if you have one, know that it's -- it was his property?

Mr. Milton M. Ferrell: Well, I would leave this to you --

Unknown Speaker: (Voice Overlap) --

Mr. Milton M. Ferrell: Sir?

This, in other words --

Unknown Speaker: Where is it?

Mr. Milton M. Ferrell: This -- this happens to be -- I just picked out the first notice I have which is page 90 of the transcript.

Unknown Speaker: 90?

Mr. Milton M. Ferrell: Yes sir, this notice to property owners.

"All interested will take notice that paving work on South Miami Avenue from South West 15th Road, to 200 feet or more or less, South of Alatka Street, designated highway improvement District Case 503 has been completed."

And that a meeting of the City Commission at 9:30 a.m. on June the 3rd, 1953, their objections will be heard to the acceptance thereof of the -- by the Commission.

Now --

Justice Potter Stewart: That didn't say a word about anybody paying for them, doesn't it?

Mr. Milton M. Ferrell: No, sir.

You want me to read them all to you here?

Justice Potter Stewart: No.

Mr. Milton M. Ferrell: This -- the statute says that.

We don't have to publish state statutes.

This is a state statute creating the City of Miami and this statute specifically sets out the only way assessments can be done.

It's not delegated to the city.

The legislature laid it upon the record and said only certain things you can assess far in then name them like street improvements, storm sewers and so forth.

And they setout in a manner in which it shall be done and it was followed specifically and let me show you --

Justice Potter Stewart: No.

But all I have in mind is --

Mr. Milton M. Ferrell: Yes.

Justice Potter Stewart: -- start with this.

That we notice on top of page 90 that says that anybody interested is hereby notified that the paving job is completed.

And if he wants to -- to know to --

Mr. Milton M. Ferrell: No sir.

Justice Potter Stewart: -- object to it -- to the acceptance of that job by the city manager where it come down, that has nothing to do with any assessment.

Mr. Milton M. Ferrell: Well, no, sir.

But don't you understand that notice there, sir, is after the work has been completed and they're going to accept it from the contractors.

Suppose it was in front of your house, but you didn't think the contractor had properly done that way and you're going pay, you can go down there and call attention to committee.

Don't pay that man yet because he hadn't properly performed his duty.

Justice Potter Stewart: In other words, if this -- if this notice at all an issue in this case that's my problem.

Mr. Milton M. Ferrell: No, sir.

The only notice, the other side attacked in this case was the first notice that was given.

One note --

Justice Felix Frankfurter: But this -- but the whole chain of procedure by which improvement is made, where it's made, when it's made, how it's made, what opportunities you have to attack the cost of the improvement out of which coming from -- may come your eloquent share of responsibility.

You said this.

Mr. Milton M. Ferrell: That's right.

Justice Felix Frankfurter: This is all part of the whole process of how the city does these things.

Mr. Milton M. Ferrell: That's right.

Justice Felix Frankfurter: Is that your point?

Mr. Milton M. Ferrell: They do.

Yes, sir.

Justice Potter Stewart: Well, then may I ask, what is this notice on page 94?

Mr. Milton M. Ferrell: Page 94?

Justice Potter Stewart: At the bottom of the page.

Mr. Milton M. Ferrell: That's the preliminary assessment roll.

That -- that preliminary assessment roll was not -- is open to the public then for inspection.

In other words, they have made a preliminary assessment roll to tell you just what it costs.

Justice Potter Stewart: Now, was that published?

Mr. Milton M. Ferrell: Yes, sir.

That was published.

Justice Potter Stewart: And how often was that published?

Mr. Milton M. Ferrell: That was published twice, two successive weeks.

Justice Potter Stewart: Now, I noticed it's captioned, “preliminary assessment roll.”

Is there any notice of a final assessment roll?

Mr. Milton M. Ferrell: No, sir.

When a roll becomes final, you get a tax notice delivered to you.

Justice Potter Stewart: All right, then is this the last notice?

Mr. Milton M. Ferrell: That's the last notice published.

Justice Potter Stewart: And, that's published twice at what interval?

Mr. Milton M. Ferrell: At least a week apart.

Justice Felix Frankfurter: Well now, may I ask you some more?

Like I want to back to the notice on page 90, that meeting on June 3rd, your objections will be heard.

Mr. Milton M. Ferrell: Yes.

Justice Felix Frankfurter: It may begin in one kind of objection namely that -- that the front of my house, paving was badly done or it wasn't finished, (Inaudible) is that right?

Mr. Milton M. Ferrell: Yes, sir.

Justice Felix Frankfurter: That hearing, presumably, a fact in such a hearing, it emphasized what the cost of the improvement, is that right?

Mr. Milton M. Ferrell: No, they don't do that.

It's the one you're mentioning on page 90.

Now, on page 90, sir, is after the contractor and if you see notices have been given prior to that, notices are given before anybody, but getting back to page 90, that's given because the contractor has reported to the city that he has completed the way.

Justice Felix Frankfurter: Now, what happens between the hearing on June 30, what has -- what is done inside of the city government between June 30th, 1953 and the preliminary assessment rolls, remember that day --

Justice William J. Brennan: February 3rd, 1954.

Mr. Milton M. Ferrell: 1954.

Justice Felix Frankfurter: So, that that's caused the hearing on February 3rd.

Now, what is before -- going to be and would it be?

Mr. Milton M. Ferrell: Well, during that period, you see the -- the taxes -- this is on June the 3rd, 1953.

The next -- next thing there is July 1954.

That that budget is prepared for the city there --

Justice Felix Frankfurter: I want to know that.

Justice William J. Brennan: No, January -- February 1954.

Mr. Milton M. Ferrell: Sir?

Justice William J. Brennan: February 1954.

At page 90 is the --

Mr. Milton M. Ferrell: Page 90 is one notice which --

Justice William J. Brennan: That's June 3rd, 1953 --

Mr. Milton M. Ferrell: He asked me about another one and you gave the date.

I didn't check it, sir.

Justice Felix Frankfurter: June -- February 1954.

Are you ready to decide how much the city has to pay for that?

Mr. Milton M. Ferrell: That's right, sir.

Justice Felix Frankfurter: That -- what they pay if they got, it goes to move from the property owner?

Mr. Milton M. Ferrell: Except that part that they paid, yes sir.

Yes, they paid some.

Justice Felix Frankfurter: (Voice Overlap), now, in the -- in the period between June 3rd and the next opportunity for these to be heard, the property owners, on February 3rd, 1954.

During that period, do the city officials decide my share of the assessment?

Mr. Milton M. Ferrell: Yes, sir.

Justice Felix Frankfurter: And then they say that -- but how do I know what my assessment is?

Mr. Milton M. Ferrell: How do you know what it is?

Well, when they come at --

Justice Felix Frankfurter: I -- I don't know from this notice.

If I go there on February 3rd will I know?

Mr. Milton M. Ferrell: Yes, sir.

All of that's on file in the clerk's office and you were told in the notice that a preliminary tax roll has been prepared.

Then you were told of the meeting, you were told twice that you can go to the meeting.

Nobody went on any of these meetings and put up any objection and the first notice was filed on December 2nd, 1950 -- March the 4th, 1950 and this -- the assessment became final unless -- little less than 60 days of December 2nd, 1953.

So that's more than three years or less.

And as we alleged in the answers, these people, sat on their front porch and entered the driveways of their home and saw this weight done and completed.

Justice Hugo L. Black: When did they file their challenge to it?

Mr. Milton M. Ferrell: They didn't file the challenge to -- they filed their amended complaint on December the 2nd.

I believed they filed their first complaint somewhere in March, which made it about -- March of 1953, which made it three years.

Justice Hugo L. Black: When had the city began to collect taxes through these funds on the second?

Mr. Milton M. Ferrell: Well, some of them they hadn't collected at all.

Some of them had paid this and some of them hadn't.

Now, he'd brought what's known here as a class action.

Of course, in our answer, we said, he had no authority to represent except those two to three in each case who would employ.

But he brought a class action saying that he represented all of those classes that had paid, they wanted their money back and those who hadn't paid and the judge in his final decree, which I want to mention to you, doesn't mention the Constitution of the United States.

And in that decree, he appointed a special master and the master then, it hasn't gotten that far because the Supreme Court of Florida reversed it.

That special master would have found what an attorney's fee should be paid to counsel who represented the class from each and every one of those people, of those who had paid, if they get their money back and of those who hadn't paid, they would have to pay.

In other words, one of this class action is a bonanza, if you bring in the sums, in other words, if you're not going to assess them.

Justice William J. Brennan: Mr. Ferrell, would you look at page 102.

You told Mr. Justice Frankfurter the significance of the notice of 94.

As I understand it, you get down at the clerk's office and find out what preliminary assessment is.

Now, what's this at page 102?

The improvement lien register, what's that?

Mr. Milton M. Ferrell: Well, that's it.

That's it for the --

Justice William J. Brennan: Is this what you see if you get down and look?

Mr. Milton M. Ferrell: That's one of the things you see.

Yes, sir.

Then you see the -- the -- in all different stages, you see one time, you see plans and specifications.

Justice William J. Brennan: Yes, but what I'm getting at is -- if the cost to each abutting property in there --

Mr. Milton M. Ferrell: That's right, sir.

Justice William J. Brennan: -- appears here by name and address --

Mr. Milton M. Ferrell: That's right, sir.

Justice William J. Brennan: -- and so forth, is that it?

Mr. Milton M. Ferrell: That's right.

Justice William J. Brennan: And the amount?

Mr. Milton M. Ferrell: Yes, sir.

Justice William J. Brennan: And that's the last step in --

Mr. Milton M. Ferrell: Yes, sir.

That -- after that tax roll, that preliminary tax roll, then here's the next step.

They still have another opportunity as prescribed by law.

They then have, after this lien is imposed, after the tax roll is -- becomes final and the assessment becomes final, they have 10 days in which to file a petition in the Circuit Court.

And, it's not a formal affair.

All they have to do is to file a petition.

They can do that on their benefits and it goes on and says are on any question whatsoever, they can file.

Now, they didn't do that.

They say that after the whole thing became final, which was three years later after one of them started, when it became final, they waited until 53 days in one case, I believe, in 40, something and another.

And they didn't go down and followed the procedure set forth in the statute.

They filed a class suit in equity to declare that the statute did not follow -- the publication did not follow the state statute.

And the lower court, in its opinion, has this to say, “If that again, in the statement to you, one given to you in full.

It was stated to you that the lower court found the notice, the only notice they attack invalid as a matter of law."

That isn't what he said.

Here is what the Court said exactly.

This is the final decree.

The Court said, “The notice of the hearing of --

Justice Potter Stewart: Where are you reading from?

Mr. Milton M. Ferrell: I'm reading from page 23 of the record.

This is paragraph 5, right in the middle of the page.

And this is the only place for everyone.

He had mentioned the Constitution of United States, one time in here.

A notice of the hearing of objections to the imposition of the assessment here and above referred to was insufficient as a -- as a matter of law.

Then he says how?

In that, it specified no place where the objections would be heard and there was no designation in the notice of what city commission was to hear objections.

No designation of the city in which the streets were located or of what the city, the person filing, the notice was claimed.

The notice was also insufficient because it was inserted in the classified section of the Miami Herald and in such a manner that it cannot be said that any reasonable person was put upon notice by it and that -- that their property was going to be subjected to a special assessment.

Justice John M. Harlan: Do you -- do you agree with your opponent that even if the first notice was bad that he is -- he isn't entitled to any relief and as you can show the second notice was there.

Mr. Milton M. Ferrell: Well, what I --

Justice John M. Harlan: Under your law.

Mr. Milton M. Ferrell: Under our law, as we'd set up in our answer, but we differ with what he says that we just don't follow this and with it.

Justice John M. Harlan: I understand that.

Mr. Milton M. Ferrell: No, sir.

We contend even if the first notice was bad.

He's had ample -- every one of these people has had ample notice.

But here's what we say he's attempting to do now.

Just like he hadn't gotten a right to be up here on an appeal under your statute, on the federal statute, because if he could be here, it would have to be by certiorari under Title 28-12-57-2 by appeal, whereas, drawn in question the validity of a state statute of any State on the ground of it's being repugnant to the Constitution, free to the laws of the United States and the decision is in favor of its validity.

Now, he got up and told you that he won the case in the Supreme Court on its first opinion on nonfederal grounds.

Now, if it had ended there, it would in any statute declare it unconstitutional, but he told you something else.

He says he didn't have any right to bring up the Federal Constitution because the City lost below.

He did have a right to bring it up, because the Florida Supreme Court has constantly held, anytime a lower court reaches the right conclusion, but for the wrong reason, you can bring up the right reason as to why they ought to be in -- affirmed on the result.

But as a practical matter and I think everybody that practices law in Miami knows it, what he is attempting to say now, is this.

And the cases that he has read to you deal with the process in judicial proceedings not in taxation through assessment.

Every case that he has read you and in my brief there that I wrote he replied with one and he said my statement was untrue that he didn't cite in the cases dealing with assessments.

And he came back and stated that he did and at the case he cited was New York versus New York -- New Hampshire & Hartford Railroad Company 344 U.S. 97 Lawyer's Edition.

I didn't think I was wrong but I just ought to study this case to see, I stated in my brief this fact.

This case involved the lack of notice to a creditor under the Bankruptcy Act.

The creditor was not notified by mail but by publication on a newspaper.

The Court held that the failure to file a creditor's claim was excused for lack of proper notice.

Now, in the case, your exact words on that was this, "The judge allot -- the district judge allowed a notice by publication.

And this Court said had the judge complied with the statutes' mandate.

It is likely that notice would have been mailed to New York City.

There was no assessment involved in this case.

On assessment had long since been entered and a lien had been imposed upon its property of the railroad.

The railroad, of course, was in bankruptcy.

Nobody was contesting the lien what the railroad did take the position here that the City of New York having failed to file its claim.

Since the notice was published that they were barred, but I'll tell you the law that knocks him down entirely.

This Court has already decided and the Supreme Court of Florida, as I mentioned I want to finish that, they -- they decided the case on non-federal grounds.

And here is what the -- the man who wrote the dissent on a petition for rehearing his dissent became the majority.

And here's what he said in connection with this notice, there was no difference among these judges all seven of them on the notice.”

Here's what -- what is said by him.

“This is the -- the final opinion that became final, Justice Drew wrote.

And he said this, “Holding then, as we unanimously do, that the notice discussed in the opinion by Mr. Thomas -- Justice Thomas was in all respects regular and in full compliance with the provision of the city charter relating to special assessments for benefits."

Now, he doesn't mention anywhere the Constitution of United States because these people pinpointed in their complaint, everything they raised was something that didn't comply with the statute itself.

The city charter being a statute because they go on and tell you to place and knows it -- if they didn't raise any federal grounds on that, although one place in his complaint, he just shoots a shotgun blast at the Florida Constitution and the -- and the United States Constitution.

But there, he's -- tells you again, upon the following grounds, then he sets out those little things.

He doesn't tell you anywhere to be up here under appeal, he would -- here's what he's attempting to tell you now.

That constructive notice in tax assessment matters would be the same as in judicial proceedings and no constructive notice would be good.

That you would have to have personal notice as process in a -- in a proceeding that's judicial, that is the position he's taking here and he took it for his first time in his petition for rehearing and the Supreme Court struck his brief and nowhere do they mention the Constitution of the United States.

Justice Hugo L. Black: Could I --

Mr. Milton M. Ferrell: Sir.

Justice Hugo L. Black: I'll just ask you a few (Inaudible)

Mr. Milton M. Ferrell: Yes, sir.

Justice Hugo L. Black: -- anything else.

If this -- does this improvement extend on the North side of Miami to the South side, going on down to Brickell Avenue?

Mr. Milton M. Ferrell: Well, it's close to Brickell, you know -- yes, sir, South Miami -- you know where South Miami Avenue goes across.

Justice Hugo L. Black: Is it true -- is this the basis of the controversy of the truth?

Mr. Milton M. Ferrell: Well, it does go through intersections, but the city paid for it at the intersections.

The city itself paid for those rights.

Justice Hugo L. Black: Beside the North side and with the South side and going down there to the Key West (Inaudible)

Mr. Milton M. Ferrell: Well, you see --

Justice Hugo L. Black: To the Brickell Avenue.

Mr. Milton M. Ferrell: Yes, sir.

Justice Hugo L. Black: What do you mean the highways there?

Mr. Milton M. Ferrell: Well, Brickell Avenue at that point go run north and south.

Justice Hugo L. Black: Definitely.

Mr. Milton M. Ferrell: No, sir.

Justice Hugo L. Black: I noticed on page 60 that this maybe a misprint.

Mr. Milton M. Ferrell: Page what, sir?

Justice William O. Douglas: Page 60 of the record.

Mr. Milton M. Ferrell: Yes, sir.

Justice William O. Douglas: "Excerpt for the minutes of the regular meeting on the commission on April the 20th, 1955."

Is that date correct?

Here at the bottom of page 60?

That was after this --

Mr. Milton M. Ferrell: Well, I think what -- what --

Justice Hugo L. Black: That's another district, if I may interrupt.

That's the other district which was formed afterwards which I complained about in my argument.

That was actually the two districts.

So, I went with (Inaudible)

Mr. Milton M. Ferrell: I -- I want to say a word too about his argument.

Justice Felix Frankfurter: Before you go on to that --

Mr. Milton M. Ferrell: Yes.

Justice Felix Frankfurter: -- may I ask you first?

Mr. Milton M. Ferrell: Yes, sir.

Justice Felix Frankfurter: I take it you (Inaudible)

Mr. Milton M. Ferrell: Yes, sir.

Justice Felix Frankfurter: Now as I understand the complaint, would you -- infringed upon here, the complaint is as to the resolution, 22-277 in the record which I -- whereby this pertaining on the -- on these streets was to be carried out.

Mr. Milton M. Ferrell: Yes.

Justice Felix Frankfurter: And the complaint is that that resolution was -- they started the initiation of that resolution but noted -- notice or document for improvement, the document -- oh, the resolution of the document (Inaudible) 277 on March 3rd.

And notice was given that anybody granting the complaint about that --

Mr. Milton M. Ferrell: Objection.

Justice Felix Frankfurter: -- (Voice Overlap) on the 15th of March.

Is that right?

Mr. Milton M. Ferrell: Yes.

That's right.

Justice Felix Frankfurter: And the complaint is on page 7C -- 12C.

The notice -- this notice saying there will be an improvement which is the starting point of it all.

If this movement is voted, it was suggesting that the property owner would know because if anything, drive in and he knows what work was being done.

The complaint is he didn't know that the authorization --

Mr. Milton M. Ferrell: But what he's --

Justice Felix Frankfurter: -- the proper one because he didn't have a chance to make his case because -- and it wasn't proper -- because it wasn't duly -- he wasn't duly notified.

And after that he says that in violation of the term, "constitution".

Now, what do you say to that?

Mr. Milton M. Ferrell: Well, here's what I say to that.

Now, where are you reading from, sir?

Justice Felix Frankfurter: I'm reading from a start of the notice of improvement on page 3 and 4 and then its complaint page -- paragraph 12 --

Mr. Milton M. Ferrell: All right, sir.

Justice Felix Frankfurter: -- on page 6.

Mr. Milton M. Ferrell: Yes.

Justice Felix Frankfurter: Special assessment (Voice Overlap) --

Mr. Milton M. Ferrell: Yes.

Here's what I say to that --

Justice Felix Frankfurter: Illegal and void and (Inaudible) property violates the Constitution.

And the reason that's illegal and void is because he didn't have notice that there would be such a resolution.

Mr. Milton M. Ferrell: If -- if --

Justice Felix Frankfurter: That is, in effect, the City of Miami, ordered an improvement in front of his property without this opportunity -- didn't have an opportunity to say that's an improper improvement to make.

Mr. Milton M. Ferrell: No, sir.

Here's what happened.

They gave him an opportunity to be heard.

They published a notice.

Justice Felix Frankfurter: But he says that's (Inaudible) he says Walker and Hudson (Inaudible)

Mr. Milton M. Ferrell: They -- I tell you, none of those cases --

Chief Justice Earl Warren: We'll -- we'll go to that tomorrow morning, Mr. Ferrell.

But, would you file with the Court please a copy of the City's motion to strike the brief of -- of the taxpayer because of the failure to raise a federal petition.

Mr. Milton M. Ferrell: Yes, sir.

Print this transcript Transcript: 

Argument of Milton M. Ferrell

Chief Justice Earl Warren: Number 153, Norton R. Ganger, et al., versus City of Miami.

Mr. Ferrell, you may proceed with your argument.

Mr. Milton M. Ferrell: Mr. Chief Justice and may it please the Court.

I left off yesterday on the question of local improvements, while the legislature of a State, as in this case, enacted a statute and set forth exactly what assessments could be made and how the -- how the notice would be given and set forth very strict limitations as to these assessments.

Now, this Court has passed on that very question in the case of Browning versus Hooper, 269 U.S. 396.

That court -- the Court held in that case where a local improvement territory is selected and the burden is spread by the legislature or by a municipality to which the State has granted full legislative powers over the subject, the owners of the property in the district have no constitutional right to be heard on the question of benefits.

Now, in the case that I cited to you, the Supreme Court did hold that statute unconstitutional because they held the district in that case was not created by the legislature.

The taxing district there had been not been created by the legislature, but the next case on it is the case of Memphis & C.R. Company versus Pace.

In this case, the state statute creating road districts and permitting the levy of taxes against property therein was attacked under the Due Process Cause of the Federal Constitution.

And in all of these cases, the proper attack was made and it was made on that point which, of course, is not the case here.

Justice Hugo L. Black: Do you mean --

Mr. Milton M. Ferrell: But --

Justice Hugo L. Black: Do you mean if the legislature had decided to make one-half the property owners on a street going through a city, just pick out every odd one and let them pay and not let anybody else pay?

Mr. Milton M. Ferrell: No, sir.

No, sir.

It would have to be uniform, but naturally, in a city, some streets might need repair at times when others wouldn't.

But in due time, probably all of them will be done but this case holds this.

You have -- the Legislature of Florida could have written a statute where no notice would have been given and it wouldn't have been any federal question involved because that's what this Court holds.

Justice Hugo L. Black: Then, you would have --

Mr. Milton M. Ferrell: But --

Justice Hugo L. Black: Then, you would have had to judge it by the face of the statute --

Mr. Milton M. Ferrell: That's right, sir.

That's what this Court held.

This Court --

Justice Hugo L. Black: -- or is applied.

Mr. Milton M. Ferrell: Yes, sir.

This Court said this in -- in regard to that.

This Court held that the district was created by the legislature, that this was a question in law -- of law and that the decision of the State on this question was controlling.

This Court held therein that property owners in districts created under the authority of the legislature and being legislatively created districts were not entitled to notice and hearing as to the benefits conferred.

They held and went on and said that it's a matter that rest in the discretion of the State and are not controlled by either the Due Process or the equal Protection Clause of the Fourteenth Amendment, and the validity of that statute was upheld by this Court.

And I say to you in this Court, if you had the proper attack in this case, which you don't, and I'll mention that again in a second.

If he had properly attacked, he wouldn't -- he wouldn't, under the rulings of this Court, be entitled to any relief because our statute in Florida goes further than your requirements because this very statute could have provided for no notice whatsoever.

Now, counsel, in his brief, my opponent, he tries to cite some state cases.

He cites a New Jersey case.

He doesn't cite any federal question -- cases on this question but he attempts to tell you that in cases where the legislature delegates the authority.

We don't have that in the Florida Act because the Florida Act sets forth what the city can do.

They don't give them any right to make any rules and regulations as to publication, as to what can be done.

They can only levy these assessments on the storm sewers, improvements to streets.

They don't have any power to do anything except what that legislative act is.

They haven't delegated anything.

They have --

Justice Hugo L. Black: Well, how do you -- how do you determine the benefit under the statute?

I'm asking because I don't quite understand the --

Mr. Milton M. Ferrell: Well --

Justice Hugo L. Black: -- reach of your argument.

Mr. Milton M. Ferrell: The -- the Act, in no case, in no State does a legislature sit as a legislature and determine whether there are any benefits under these things.

That would be impractical and you won't find any case where it's done.

They have just said, where storm sewers, unless three-day improvements are made, that is a benefit.

They have legislative --

Justice Hugo L. Black: They haven't determined the amount.

Mr. Milton M. Ferrell: No, sir.

Justice Hugo L. Black: But you're --

Mr. Milton M. Ferrell: They can't do that.

Justice Hugo L. Black: You are saying that they have determined that it's a benefit.

Mr. Milton M. Ferrell: It's a benefit.

Now, they have their rights in the state court as to that.

You have seen how many notice is here, and no -- and one of this case is over a period of three years.

Then, after all that is done, they have a limited time to go into the Circuit Court on a very informal petition.

And in this case, they failed to avail themselves of that right.

That in itself, this statute limits the time in which action can be brought on these things.

It --

Justice Hugo L. Black: Let me ask you one question there because you bring up another point.

Mr. Milton M. Ferrell: Yes, sir.

Justice Hugo L. Black: You say they have a right to go into court --

Mr. Milton M. Ferrell: Yes, sir.

Justice Hugo L. Black: -- after a certain time.

Mr. Milton M. Ferrell: Yes, sir.

Justice Hugo L. Black: Now, if they didn't have a notice, how could they go?

Mr. Milton M. Ferrell: Well, they have had a notice --

Justice Hugo L. Black: I understand that.

Mr. Milton M. Ferrell: -- by publication.

Justice Hugo L. Black: I understand that.

Mr. Milton M. Ferrell: Yes, sir.

Justice Hugo L. Black: But --

Mr. Milton M. Ferrell: If they don't get a personal notice, well, they don't have -- they haven't been personally notified, but what I'm saying now, in every one of these cases cited by the other side in here, they have no application to a proposition like this.

Why, you have written an opinion.

In every one of these cases he cited to you, you will find in each one of them is a question in a judicial proceeding where couldn't have said this by publication.

The first case he cited was this Mullane versus Central Bank -- Hanover Bank & Trust Company, 339 U.S. 306.

That case involved the validity of a New York statute concerning trust companies which permitted the trustee to have a judicial settlement of its accounts by publication in a newspaper.

You, of course, held that unconstitutional.

The second case he cites and tells you, as a per curiam discussed yesterday, New York versus New York, New Hampshire & Hartford Railroad Company, 344 U.S. 293.

That was a case where it was a bankruptcy question.

The creditor was notified by mail but by publication in the newspaper.

The creditor was the City of New York.

There was no question about the assessment.

The lean had been made and had been on there for some time.

They had never questioned the assessment.

It was a question of the claim being barred because they didn't file a claim.

They contended that was a judicial proceeding.

And I read you yesterday what this Court said that the District Judge didn't follow the statute -- the bankruptcy statute on that in requiring the proper notice.

That has nothing to do with assessments, other than the claim that was barred just happen to be one for an assessment.

It would have applied had it been anything.

Now, the only difference in the Court on that case was it didn't have anything to do with this question.

I think two justices said the fact that the city had a lean on a railroad -- specific railroad property, as in this case, is on specific property where the improvements were made, that they wouldn't be barred under the Bankruptcy Act anyway because they still had their liens on that specified property.

The next case he cited was Covey versus Town of Somers, 351 U.S. 141.

This case involved a foreclosure against an incompetent and whether or not he was properly certed.

In this case, the New York Court of Appeals certified that due process was raised and denied by it.

The next case he mentioned yesterday was the Walker versus the City of Hutchinson, 352 U.S. 112.

That case involved a condemnation proceeding in which process was obtained by publication in a newspaper.

He cites the case of Lambert versus --

Justice Felix Frankfurter: Does that --

Mr. Milton M. Ferrell: -- the People --

Justice Felix Frankfurter: Does that dispose of the relevance of the case?

Mr. Milton M. Ferrell: Sir?

Justice Felix Frankfurter: Why does that dispose of the relevance of the case, because of the condemnation procedure?

Mr. Milton M. Ferrell: Well, that was a judicial proceeding, sir, and I say this.

This question wasn't raised in the lower court and the appellant court, but if --

Justice Felix Frankfurter: That's a different point.

Mr. Milton M. Ferrell: -- if it was the law that in any tax assessment benefit here, that notice by publication was insufficient and it took personal notice, of course, we didn't have anything but notice by publication, and naturally, if you required more notice than notice by publication, the city could not prevail.

Of course that question wasn't raised, but if it were raised in a case, and that's the way this is done all over the United States in most cities and countries is -- counties is just like this, by publication.

Justice Felix Frankfurter: What's your authority for saying that?

How -- how could you -- where could I find in print, any kind of print --

Mr. Milton M. Ferrell: Well --

Justice Felix Frankfurter: The association of the city saying --

Mr. Milton M. Ferrell: I'll go behind the record.

Justice Felix Frankfurter: That's in the record.

Mr. Milton M. Ferrell: I have -- I have talked to and corresponded with a number of city attorneys and saw one yesterday from Texas who was right here who came up to me and told me, “Your statute is exactly like Iowa's,” and he was the City of -- attorney of Laredo, I believe, Mr. Hill.

He was present here yesterday.

Justice Felix Frankfurter: But you haven't made a study, have you?

Mr. Milton M. Ferrell: Not a detailed --

Justice Felix Frankfurter: Is there in your brief the study of this mode of assessment before the Fourteenth Amendment was adopted and since the common practice throughout the country in the kind of notice that's given in levying special assessments?

Mr. Milton M. Ferrell: No, sir.

I've never made a detailed study of that.

Justice Felix Frankfurter: How many taxpayers were involved in this?

How many -- against somehow -- against how many tax payers was this levy in here?

Mr. Milton M. Ferrell: Well, all of this -- this --

Justice Felix Frankfurter: In numbers.

In numbers, about?

Mr. Milton M. Ferrell: Well, I couldn't give --

Justice Felix Frankfurter: 50 or 500?

Mr. Milton M. Ferrell: I think it would probably -- all of these things would be more than 500.

Justice Felix Frankfurter: Well, that may make a difference because this Court has held it's one thing to levy against -- for special benefit against individuals as to whom each -- as to whom as -- a case must be made out in each instance and levying, for instance, against the whole county, however unfairly they have been levied by the State.

This Court has made that distinction, that if there's a mass, you couldn't expect to give individual notice.

If it's just a few, you have a right to demand individual notice.

Mr. Milton M. Ferrell: Yes.

Well, as a practical matter, these assessments are not levied to patch up streets.

It's usually for an improvement that extends to considerable distance and it would cover everybody in that --

Justice Felix Frankfurter: Alike --

Mr. Milton M. Ferrell: Area.

Justice Felix Frankfurter: Alike --

Mr. Milton M. Ferrell: Yes, sir.

Justice Felix Frankfurter: It wouldn't be that --

Mr. Milton M. Ferrell: No, sir.

Justice Felix Frankfurter: -- John Smith --

Mr. Milton M. Ferrell: It would be alike on --

Justice Felix Frankfurter: -- would be benefited but William Jones wouldn't be.

Mr. Milton M. Ferrell: No, sir.

You would have -- you would have an opportunity to be heard on that and it wouldn't be in accordance with your property.

Suppose the man next door to you had four times the lot you did, he'd pay --

Justice Felix Frankfurter: But you say you had opportunity to be heard.

Because I understand that the whole -- the crux of the issue here is, putting aside the question whether the question was properly raised, is that there was no opportunity to be heard.

That's the --

Mr. Milton M. Ferrell: Well, if you --

Justice Felix Frankfurter: That's the core of the --

Mr. Milton M. Ferrell: Yes, sir.

Justice Felix Frankfurter: -- petitioner's case.

Mr. Milton M. Ferrell: If you -- if you meant by that, sir, that the notice by publication, if you took for granted that nobody saw it, that the people who lived there assumed that those improvements which they saw going in and they had the benefit of and this time element shows you that their last opportunity to be heard was after that work had been completed and the city had paid for it with their money and hadn't gotten any back from this property owners, then if notice by publication in that -- the vision of it insufficient, then they had no notice.

And the only way we could give them notice then, if it got down to it, is have the Sheriff serve each and every one of them.

And when we finish checking the title of this property as to who owned it all the way through that period of time as it would change, and you would have a new group entitled to notice each time if it changed, then it would cost those taxpayers a great deal of more money.

Justice Felix Frankfurter: Or put it on --

Mr. Milton M. Ferrell: They would have to pay it.

Justice Felix Frankfurter: Put it on the front page with stream of headline instead of on the second page.

Mr. Milton M. Ferrell: Well, it was under --

Justice Felix Frankfurter: That's the constitutional argument.

Mr. Milton M. Ferrell: It was under the legal notices but I don't believe they would sell us that unless we did it in a form of an advertisement.

It would be costly.

I -- but if notice by publication isn't good, it wouldn't be good on the front page.

Justice Charles E. Whittaker: May I ask you -- may I ask you, sir --

Mr. Milton M. Ferrell: Yes, sir.

Justice Charles E. Whittaker: Does the fact that one of these property owners or others might see the improvements going on in the street give notice to him that it's to be paid for by special assessments against this property in your -- in your State?

Mr. Milton M. Ferrell: Well, I believe, so, sir, that -- I believe this Act we told you was enacted in -- this amendment was in 25 to this charter, but if that alone, if it had been no notices, the Act provided for no notice whatsoever, still, under these cases where the legislature has done it, it wouldn't be a federal question.

But we don't have it here.

I don't think that that alone would be sufficient for that request.

Justice Hugo L. Black: I'm unable to follow you completely on that statement.

As Justice Frankfurter suggests, it seems to me, you have two problems.

Number one, did they raise this question?

Of course, that is here.

Number two, I do not understand you to argue here that merely because the legislature passes an act which says that a taxpayer shall pay in accordance to the good that's done him --

Mr. Milton M. Ferrell: Well --

Justice Hugo L. Black: -- that that dispenses with any notice to them.

Mr. Milton M. Ferrell: The thing that I was citing to you were the opinions of this Court in which this Court said that as far as the Federal Constitution was concerned, the property owner was not entitled to be heard on benefits.

Justice Hugo L. Black: You mean on the individual -- when the State divides it up, the benefits among the different people, that the property holder is not entitled any notice before the --

Mr. Milton M. Ferrell: That's --

Justice Hugo L. Black: -- benefit is passed on?

Mr. Milton M. Ferrell: That's what you held.

Justice Potter Stewart: On what cases?

Justice Hugo L. Black: I didn't think so, but maybe so.

Mr. Milton M. Ferrell: You've held that in the case of Memphis & C.R. Company versus Pace.

Justice Potter Stewart: I just reread that opinion --

Mr. Milton M. Ferrell: Yes, sir.

Justice Potter Stewart: -- in the last five minutes and I couldn't find such holding.

Mr. Milton M. Ferrell: Well, the next case on it is Browning versus Hooper, 269 U.S. 396.

Justice Potter Stewart: And you say those cases stand --

Mr. Milton M. Ferrell: Yes.

Justice Potter Stewart: -- the proposition?

Mr. Milton M. Ferrell: These --

Justice Potter Stewart: And there is no federal question placed by the failure of a State to give an abiding property owner an opportunity to continue.

Mr. Milton M. Ferrell: What I say is this.

Justice William O. Douglas: Counsel, those are cases where there has -- where there was a hearing in the --

Mr. Milton M. Ferrell: This is not --

Justice William O. Douglas: -- as used in evidence, pro and con on the benefits, and the court said that there was the --

Mr. Milton M. Ferrell: Well, they --

Justice William O. Douglas: -- evidence that the property owners did no -- did not overcome that in the --

Mr. Milton M. Ferrell: Yes, sir, but they may --

Justice William O. Douglas: -- drainage district.

Justice William J. Brennan: Therefore, there was no discrimination.

Therefore, there was no oppressive arbitrary practice.

Mr. Milton M. Ferrell: And they have had said this, sir, about those districts.

Being legislatively created districts, they said they were not entitled to notice and hearing as to the benefits conferred.

Chief Justice Earl Warren: Mr. Ferrell, at the -- just as you -- as we adjourned yesterday afternoon, you were about to come to that last argument that was made by counsel.

Mr. Milton M. Ferrell: Yes, sir.

Chief Justice Earl Warren: It seems to me that that bares on --

Mr. Milton M. Ferrell: All right.

Chief Justice Earl Warren: -- this particular thing because, as I understood it, you said you had some similar proceedings as to some property farther down the street where they did not assess it against the -- against the owners of the property but that in this particular instance, they did.

Mr. Milton M. Ferrell: Yes.

So, let me answer that, sir.

He told you yesterday that there was -- that he took a deposition and that he got leave of the lower court to do that.

He didn't tell you that he got that leave of the lower court some time after the lower court opinion was handed down the decree in February of 1955.

Now, he doesn't give you the date on his motion for leave to supplement the record that he read to you yesterday here, but he goes into a letter that he got on the deposition which is June 1st, 1956.

Now, he doesn't show you the dates on here when he filed in the Supreme Court of Florida a motion for leave to supplement record on appeal to show some discriminatory action.

He filed it, and again, he didn't put the order in here but it shows in his petition for rehearing that Supreme Court of Florida denied that motion for leave to supplement record on appeal.

And never having been in the lower court as a record, it wouldn't allow it in the Supreme Court but it was physically up there in the file and he printed it in this record, and it's not in the records of this Court.

It's not considered and put it in here and came up here yesterday and argued that to you.

That wasn't raised and I want to mention this to the Court while I'm on that subject.

Our file is directed by the Court this morning, as you directed me yesterday, a copy of the city's motion which resulted in the striking of their -- the brief of the appellants here on their rehearing where they raised, for the first time, the constitutional question.

And counsel answered Justice Harlan yesterday when you asked him that question, if they didn't strike it because it was raised for the first time.

Here's all the city said in their short motion, they said here once, number two, “The suggestion -- suggestions of appellees in their petition for rehearing and application to file brief confined solely to the federal constitutional question sought to be raised by appellees was not raised by the appellees in the Trial Court and now appears before this Court for the first time.”

We then have said, “Appellants respectfully submit that to permit the suggestion of a constitutional question objection not raised in the Trial Court nor included in the main briefs before this Court is contrary to the long lines of decisions enunciated by this Court.”

We cited on a case there and I want to make one more comment on -- counsel read to you yesterday, in his opening argument, a little conclusion from his brief where he said in his main brief before the rehearing question came up that he did mention the constitutional question.

He read you a sentence.

In this very motion that the city filed with the Supreme Court of Florida, and which was granted, we -- it says here, and here's what the Court said citing the case of Randall versus Miami Coin Club in 88 So.2d 293.

It says, “Only at the conclusion of the briefs is it suggested that the statute may be subject to a constitutional objection,” but this suggestion is neither properly briefed nor argued.

Consequently, it cannot be said to be raised -- be raised on this appeal.

But I'm willing, if counsel says his brief in the main cause touched upon these questions, I'm willing for him to file it before you and let you see how much of it he raised.

I have no objection to him putting --

Justice William J. Brennan: I take it he, in the notice of motion that you're reading from, referred or claimed that he had not attacked the second notice at any stage of this proceeding?

Mr. Milton M. Ferrell: Well, in our answer, and all the way through, sir, we showed -- we set out all of these notices and he didn't attack any notice all the way through this case.

You can look at his brief, other than by attempting in his petition for rehearing, what he got down to there was to try to properly raise this question by holding that any notices by publication would be insufficient, that they would be entitled to actual notice more than by publication, not constructive notice.

That's the question he attempts to raise and the Supreme Court of Florida, that's in the record, struck his brief as to the constitutional questions.

Now, he says to you, well, they considered his petition for rehearing.

They considered it because he had other grounds in it other than those constitutional questions, but my time is running out.

Chief Justice Earl Warren: Mr. Ferrell, I'd still like to ask you --

Mr. Milton M. Ferrell: Yes, sir?

Chief Justice Earl Warren: -- about that last point that he made in his argument yesterday.

I'd like to ask you if it is a fact that on other proceedings on this same street, as I believe he said --

Mr. Milton M. Ferrell: Yes, sir?

Chief Justice Earl Warren: -- where they were -- proceedings were started the same as they are here, that they did not assess the property owners but -- on his property and in this particular neighborhood, they did.

Mr. Milton M. Ferrell: What they did, sir -- yes, sir.

It wasn't on this same street but what they did in another district, the city, each time they -- they -- the place is a district, what they did, as a matter of fact, was pulled up the assessment on this.

And I might say, in connection with that, if you'll look, there has been a flood of litigation on this question.

There are many, many cases that have been pending and disposed of here recently, in the last six months, on this very assessment problem.

Chief Justice Earl Warren: And on --

Mr. Milton M. Ferrell: And --

Chief Justice Earl Warren: On some of those --

Mr. Milton M. Ferrell: Of course, I met counsel here in each one of them.

Chief Justice Earl Warren: You mean, on some of those, the city has abandoned its claim to --

Mr. Milton M. Ferrell: No, sir.

No, sir, we haven't abandoned.

Chief Justice Earl Warren: Well, what have you -- what --

Mr. Milton M. Ferrell: What --

Chief Justice Earl Warren: Is it a fact in that though, that you did not assess them as you did in this particular area --

Mr. Milton M. Ferrell: Well --

Chief Justice Earl Warren: -- where the proceedings were the same?

Mr. Milton M. Ferrell: No, sir.

I dint think it was that they failed, but they did stop the assessment advertisement on some of them, on one of them that I know of, definitely, here --

Chief Justice Earl Warren: Did they do the work?

Mr. Milton M. Ferrell: -- as he has got in his record.

Sir?

Chief Justice Earl Warren: Did they do work there?

Mr. Milton M. Ferrell: They had started, in this case, I believe on the notices.

Let's see, and they had gotten down to the question of hearing objections to the completed way to what appears here, yes, it is.

Chief Justice Earl Warren: Yes.

Mr. Milton M. Ferrell: So, the work had, evidently, been completed and the notice then as to that was -- that --

Chief Justice Earl Warren: They --

Mr. Milton M. Ferrell: -- is when they held up.

Chief Justice Earl Warren: They just stopped the --

Mr. Milton M. Ferrell: Yes, sir.

Chief Justice Earl Warren: -- proceeding there and did not assess those people.

Mr. Milton M. Ferrell: That's right.

Chief Justice Earl Warren: But they assessed these people.

Now, why was that done?

Mr. Milton M. Ferrell: Well, here, I think, in this case, I can read you from this letter that is in here will probably be the -- it says, Mr. Anderson writes this letter, “My attention has been called to the fact that the City Commission, at about the time this district was ordered,” and this is what the Supreme Court of Florida disallowed in the record, whether it will answer your question --

Chief Justice Earl Warren: Referring to this particular case --

Mr. Milton M. Ferrell: Yes.

Chief Justice Earl Warren: -- where that says this?

Mr. Milton M. Ferrell: Not this case that he's -- Mr. Anderson has written a letter here that -- to the engine -- Department of Engineering which will answer your question --

Chief Justice Earl Warren: Yes.

Mr. Milton M. Ferrell: -- but which the Supreme Court did not allow in the record.

Chief Justice Earl Warren: Yes.

Justice Felix Frankfurter: Well, was that -- this letter of Mr. Anderson that you are about to quote or about what you're talking, was that with reference to property on the same streets as the case before us?

Mr. Milton M. Ferrell: I think here is the difference.

It says --

Justice Felix Frankfurter: And secondly, is this a matter that's in the record or is this all --

Mr. Milton M. Ferrell: No, sir.

It's --

Justice Felix Frankfurter: -- outside the record?

Mr. Milton M. Ferrell: He has put it in the record because he physically sent the papers up to the Supreme Court of Florida and tried to supplement the record, and they wouldn't -- they denied his motion and wouldn't let it come in because he tried to put it in after the petition for rehearing had been granted.

Justice Felix Frankfurter: Well, now, is this in the --

Mr. Milton M. Ferrell: He had not raised that point before.

Justice Felix Frankfurter: Well, is it before us properly?

I don't mean --

Mr. Milton M. Ferrell: No, sir.

Justice Felix Frankfurter: -- is it physically printed in --

Mr. Milton M. Ferrell: No, sir, it's not.

Justice Felix Frankfurter: -- in this volume?

Is it before us --

Mr. Milton M. Ferrell: Yes, sir.

He has put it in this record.

Justice Felix Frankfurter: -- in the sense that it was before the Supreme Court of Florida?

Mr. Milton M. Ferrell: He has put it before you in here and he has not put in the order in this record showing you that the Supreme Court of Florida denied that that I see.

Justice Felix Frankfurter: Now, the question --

Mr. Milton M. Ferrell: In other words, I think you would get the -- the -- in other words, what he is attempting to do is to have you consider something here that was not before the Trial Court.

It wasn't even in existence until, that letter there, until after the decree, and then he brought it up after his petition for -- the petition of the city for rehearing was granted and tried to come in with that.

Now, they wouldn't let him do it.

They denied his motion to supplement the record but he has brought it here to you now, not having been in the record and asked you to consider it.

Justice Felix Frankfurter: Do I understand -- am I right in inferring that the point of -- the point sought to be made by bringing in, allegedly, non-assessment of like property in the same region, or on the same street even, that this legal point is the discriminatory treatment of the property --

Mr. Milton M. Ferrell: No, sir.

Justice Felix Frankfurter: -- now under question?

Isn't that the point?

Mr. Milton M. Ferrell: No, sir.

Here is what it is, You see --

Justice Felix Frankfurter: I'm not saying that that's the point before us, but isn't that the endeavor --

Mr. Milton M. Ferrell: Well --

Justice Felix Frankfurter: -- behind --

Mr. Milton M. Ferrell: The --

Justice Felix Frankfurter: -- raising --

Mr. Milton M. Ferrell: Yes, sir.

Justice Felix Frankfurter: -- the question?

Mr. Milton M. Ferrell: Yes, sir.

The endeavor is to show you that there has been an area in the city where they didn't do it and --

Justice Felix Frankfurter: And that would be --

Mr. Milton M. Ferrell: I will tell you --

Justice Felix Frankfurter: That might be discrimination and might be on equal protection of the law.

Mr. Milton M. Ferrell: It might be.

Justice Felix Frankfurter: Now, is that properly before us?

Mr. Milton M. Ferrell: No, sir, that isn't, just like if you investigated the city, I imagine you will find a lot of things down there that not -- is not equal protection under the law, most any of them.

But I can't try a lawsuit for him on a question that he raises and get up here and have him dig up that's never been in the record, everything they are doing down there that's unequal or unfair.

Justice John M. Harlan: Could I ask you a question?

I got this copy of this motion you're reading about.

What does the first paragraph of the motion refer to?

You say there that the Court, on November 21st, 1957, denied the appellee's motion for leave --

Mr. Milton M. Ferrell: Yes, sir.

Justice John M. Harlan: -- to file a brief.

Mr. Milton M. Ferrell: Here is what happened there, sir.

You see, the city -- or the Supreme Court granted a rehearing and allowed further argument.

Now, at that argument, counsel for the appellants here, the property owners, he requested the Supreme Court at that time to allow him to file a brief.

Justice John M. Harlan: On the federal constitutional question?

Mr. Milton M. Ferrell: Yes, sir.

Justice John M. Harlan: And --

Mr. Milton M. Ferrell: And they didn't do it.

Now, he came back again -- I don't -- to be frank with you, when he asked him to let him file a brief at that time, I don't know whether he said on the -- limited it just to the constitutional right.

Then, he got back and he filed a -- he filed a motion --

Justice John M. Harlan: A written motion?

Mr. Milton M. Ferrell: A written motion --

Justice John M. Harlan: I see.

Mr. Milton M. Ferrell: -- asking him to limit it to that, and they granted it.

Then, when he file his -- we filed this to stop him, but when they got his brief, we asked to vacate the order, of course they had the brief in their possession.

They, evidently, looked at it and they struck it, but instead of vacating the order, the only way they could give us any relief after it go there was to strike it.

But in that brief, you will see the difference between that one and the main brief he filed in the cause because even the opinion that he depended on, the dissenters' which is, at first, was the majority, he sets forth very well that proposition.

Justice John M. Harlan: Are the briefs -- are the briefs on the two appeals to the Florida Supreme Court here in our files?

Mr. Milton M. Ferrell: No, sir, they are not.

But I -- as I told you, I would be willing for counsel there to -- to file here, to let you see what he did raise and I said it yesterday.

Anytime in a lower court, if a court decides for me in the lower court --

Justice John M. Harlan: Well, never mind about that but for myself, and this is a different feeling on the bench, I'd like to see those briefs.

Mr. Milton M. Ferrell: All right, sir.

I will be glad to -- to get them to you, sir.

Justice Hugo L. Black: Where is that jurisdiction perspective?

Mr. Milton M. Ferrell: I would like to read you just a paragraph here as to what the dissenting judge who wrote the opinion for the dissent which was at one time, the majority before the rehearing was granted and it was reversed, what he says.

It was no difference in all seven of the members of the Supreme Court on the notice, they all held the notice was sufficient under the law.

But the only thing they had a difference on was whether resurfacing and repaving were synonymous, and this question of whether they were estopped.

The dissenters held that under the state statute, not -- not any -- under the state statute, repaving wouldn't be allowed under that statute.

Now, here the -- the man who wrote the opinion that they depended on said this, and he is the one that went for him with the other two.

The appellees seem to have convinced the Circuit Court that there were five defects rendering the notice insufficient and he names them, which every one of them a state grant.

Then, he says this.

“It seems to us that an interpretation that a property owner who wished to object to the proceeding would not be sufficiently informed to be able to locate a meeting of the Commission of the City of Miami would be farfetched.”

Then, it goes on as to the others and said, “Our reaction to the next two so-called imperfections, lack of identity of the city in the sign of the notice is the same for the same reasons.”

Then, he goes on and said, “as far as the position in the papers --

Chief Justice Earl Warren: I think, Mr. Ferrell, we'll have to read that ourselves.

Your time has expired.

Mr. Milton M. Ferrell: Thank you, sir.

Argument of Thomas H. Anderson

Mr. Thomas H. Anderson: Mr. Chief Justice.

Chief Justice Earl Warren: Mr. Anderson.

Mr. Thomas H. Anderson: May it please the Court.

I had intended this morning to put this case in what I thought was a proper focus by emphasizing to the Court that basically, the question involved here was whether or not these property owners received a special benefit to their property different from that enjoyed by the rest of the people in the city because, without that foundation, there is no constitutional basis for imposing upon those people any different burden than that called upon the other people in the municipality.

It wouldn't make any difference if the City of Miami had given the property owners a notice in writing every day that they were going to levy the assessments and that had it served that notice upon them personally.

If the doing of the work had not conferred any benefit upon that abutting property, the City of Miami, and no other city, would have had any right to have the imposed cost upon those people.

And there isn't any serious doubt about that proposition in all the courts of this country, including this, which have considered that question.

Justice Felix Frankfurter: Suppose --

Mr. Thomas H. Anderson: Benefit --

Justice Felix Frankfurter: May I ask you a question?

Mr. Thomas H. Anderson: Yes, sir.

Justice Felix Frankfurter: Suppose the legislature of Florida decides that it's necessary to make, add, or to have a new facing of all the streets in Miami.

Could the legislature do that without giving anybody any notice?

Mr. Thomas H. Anderson: Your Honor, I do not think so, but --

Justice Felix Frankfurter: You don't?

Mr. Thomas H. Anderson: No, sir, but I would like to say this to the Court, if I may, that there is vast difference between a legislative determination of benefit which is made by the assembled people or legislators in a State and that made by a body to which that power has been delegated and the statements are well put in American jurisprudence, and if I may ask Your Honor's indulgence, I should read it to you.

Contrary to the view stated in the preceding paragraph which discusses the question concerning the legislative determination of benefits, it has been ruled that where the legislature of a State does not, itself, act in determining an improvement district or area or making a special or local assessment that delegates the power to do the same thing to some subordinate body.

Due process of law requires that in some stage of the proceedings before the assessment becomes irrevocably fixed, the property owner shall have an opportunity to be heard, of which, he must have notice, either personal or by publication or by a law fixing the time and place of hearing, the proceedings in such instance or in a natured judicial, in the sense that such right to notice and hearing exists.

Justice Felix Frankfurter: May I ask you this?

Mr. Thomas H. Anderson: Yes.

Justice Felix Frankfurter: Does this Court -- is there any case decided by this Court in which it was held, when a state legislature gives a whole new charter to a city, whether its Cleveland or Minneapolis or Miami or New York gives a whole new charter to a city, gives full power to the city to determine what kind of streets it should have?

Well, that if legislature could, itself, do, it couldn't do by way of a whole new charter.

Do I understand that to be the law?

Mr. Thomas H. Anderson: No, sir.

As far my understanding is concerned, it doesn't, but I can't answer Your Honor's question.

I certainly am not that familiar with this.

Justice Felix Frankfurter: Is it your understanding that a city couldn't be authorized to have unreviewable power by the state legislature to do what they could do at all for New York?

Mr. Thomas H. Anderson: It is my understanding that the legislature may confer no such power upon the -- upon the municipality.

Justice Felix Frankfurter: All I can say is if that's the law, then I'm greatly surprised.

Mr. Thomas H. Anderson: I think it would.

I agree with Your Honor and I do not think it is because this is a government of laws and not of men.

Justice Felix Frankfurter: No, I am surprised if your -- your statement of the law is wrong.

Mr. Thomas H. Anderson: Well --

Justice Felix Frankfurter: The state legislature can tell the City of New York it shouldn't run up to Albany to find out whether there should be pacing in New York.

Mr. Thomas H. Anderson: It may have the power, Your Honor, to that but it doesn't have the power to impose the burden upon the people without notice and without benefit.

Justice Felix Frankfurter: Well, I bet you think that Albany may do so?

Mr. Thomas H. Anderson: No, sir, I do not think that power exists.

Justice Felix Frankfurter: You think that the legislature may do so.

Mr. Thomas H. Anderson: The legislature may, as in the case of the drainage districts, because everybody knows what is going on in the legislature.

Justice Felix Frankfurter: They do?

Mr. Thomas H. Anderson: Well, they are theoretically assumed to know that, Your Honor.

Now, as I said, I was trying to discuss this matter of the actual existence of these benefits and to call the Court's attention to this fact, that the circuit judge who tried this case, and this finding comes to this Court in my opinion with an irrebuttable presumption of correctness.

The circuit judge found that no special --

Justice Felix Frankfurter: Yes.

Mr. Thomas H. Anderson: -- benefit was conferred upon the abiding property by the resurfacing of said streets and the benefit which was derived there from was general and not special.

Now, when the case went to the Supreme Court of Florida, the Court --

Justice Felix Frankfurter: This does not mean --

Mr. Thomas H. Anderson: Sir?

Justice Felix Frankfurter: Was this repaving done throughout the city?

Mr. Thomas H. Anderson: It was not a repaving, Your Honor.

It was a resurfacing of the street.

Justice Felix Frankfurter: Resurfacing, was that done throughout the City of Miami?

Mr. Thomas H. Anderson: No, sir.

It was done in this case --

Justice Felix Frankfurter: It was done in the restricted territory, wasn't it?

Mr. Thomas H. Anderson: Sir?

Justice Felix Frankfurter: It was done in the restricted territory.

Mr. Thomas H. Anderson: If it could be called such, it was done on a few streets between the arterial highways in downtown Miami.

Justice Felix Frankfurter: Now, what does that mean, what you've just read that it was general benefit, not special?

Mr. Thomas H. Anderson: That is to say --

Justice Felix Frankfurter: Saying that everybody in the United States and most of those read benefits.

Mr. Thomas H. Anderson: No, sir, that everybody in the City of Miami who were bearing the cost that they got out of a general fund should be paid for out of the general funds.

That's what that means.

Now, when the case went to the Supreme Court of Florida, one of the Justices who subsequently changed his opinion and run over to the other side said this in a specially concurring opinion.

“Here, the trial judge specifically found that the work was for the benefit of the general public and the abiding owners received no special benefit.

The record of balance in evidence more than adequate to sustain this conclusion.”

And one of the witnesses testified that he lived on a street near the intersection of a highway to Key West, which Justice Black referred to on yesterday, and that the passage of that traffic up and down that street had made his street worse and that he would pay the city double if they just hadn't done the work at all.

Justice Felix Frankfurter: And do you think that this Court should sit in judgment as to whether -- who was that judge who went over the other side, Chief Justice Terrell or Thomas?

Mr. Thomas H. Anderson: No, sir, this was Justice Thornal.

Now, you should --

Justice Felix Frankfurter: Thornal.

Mr. Thomas H. Anderson: -- not sit in judgment on him.

Justice Felix Frankfurter: Should we say he was right the first time but wrong the second?

Mr. Thomas H. Anderson: Your Honor, he may have had a legal reason for changing his mind, and I think he did, but he certainly couldn't change his opinion about the facts.

Justice Felix Frankfurter: What --

Mr. Thomas H. Anderson: He stated that to be a fact.

Justice Felix Frankfurter: Why couldn't he --

Mr. Thomas H. Anderson: Because the question of benefits was not seriously challenged in the Supreme Court.

Justice Felix Frankfurter: Of course courts can't change their minds on questions of fact.

They constantly overrule the law of Florida on determinations of fact.

Mr. Thomas H. Anderson: Mr. Justice Frankfurter, there was no serious challenges to the sufficiency of the facts to support the judgment in the Supreme Court of Florida.

Justice Felix Frankfurter: Then, should we go on and should we consider that question on the merits or be bound by what the Supreme Court of Florida said?

Mr. Thomas H. Anderson: I think that you are bound by what the trial judge found and there isn't any contrary finding in the record.

Justice Hugo L. Black: Why do you say bound by Florida?

Do I understand that you are saying that the Supreme Court of Florida has affirmed these findings of fact?

Mr. Thomas H. Anderson: Justice Black, Justice Thomas who wrote the majority opinion for the Supreme Court of Florida said the city lacked the power to resurface as opposed to repave.

Justice Hugo L. Black: What did that Court decide as the findings of fact --

Mr. Thomas H. Anderson: Well, on that point --

Justice Hugo L. Black: -- in Florida?

Mr. Thomas H. Anderson: On that point, the -- Justice Thomas had this to say.

Justice Hugo L. Black: But what did the majority of the Court decide?

Mr. Thomas H. Anderson: There isn't any definite finding about that, but I would like for the -- for the -- to be perfectly candid with the Court, I want to read the Court, for a brief second, a statement from Justice Thomas' opinion.

Chief Justice Earl Warren: Is that the opinion of the Court?

Mr. Thomas H. Anderson: It was the opinion of the Court on the first opinion.

Now, when it went up on the -- when -- when the -- when the case was heard on rehearing, the case went entirely off on the matter of a estoppels.

That we had failed to file these objections to the administrative proceedings and you've taken on appeal to the Circuit Court within 10 days, hence, we could not raise the question of benefits, and that is the point on which the Court ultimately rested its decision.

Justice Hugo L. Black: Are you saying, if I can understand it, are you saying that in the first opinion, the Court approved the findings of facts and in this --

Mr. Thomas H. Anderson: I do not find that as a fact, Justice Black.

Justice Hugo L. Black: You do not say that?

Mr. Thomas H. Anderson: But I think it's implicit in the Court's opinion, although the case --

Justice Hugo L. Black: Well, assuming --

Mr. Thomas H. Anderson: -- turned upon the --

Justice Hugo L. Black: Assuming it's implicit in it, are you saying that in the second opinion, they didn't discuss the --

Mr. Thomas H. Anderson: That's right.

Justice Hugo L. Black: -- facts at all?

Mr. Thomas H. Anderson: That's right.

Now, I would like, however, because this matter seems to have engaged the attention of the Chief Justice and Mr. Justice Frankfurter, to discuss for a moment the question as to the matter of this discrimination which was injected into the case in which counsel said that we have improperly brought to this Court for its consideration.

Justice William J. Brennan: Before you get to the issue below, you failed to point out as to where the question is presented in.

You presented that in parts of the other --

Mr. Thomas H. Anderson: In the jurisdictional statement?

Justice William J. Brennan: Yes, where?

Mr. Thomas H. Anderson: It is raised in the brief, Justice Brennan.

Justice William J. Brennan: Now, where do you expect me to read that.

Mr. Thomas H. Anderson: It is raised -- it is raised in the -- no, I think, Your Honor is correct.

I do not think that that question is directly raised by the jurisdictional statement.

Justice William J. Brennan: How are you entitled to benefits?

Mr. Thomas H. Anderson: Well, perhaps we are not, but we put that into our brief as a means of showing the situation that had existed with respect to these property owners and for the information of the Court, if I may go this much further and explain our position to the Court.

It -- the matter is not as counsel represented to the Court, some hybrid piece of paper that has been brought to this Court.

It was raised in the Supreme Court of Florida in our petition for rehearing.

On page 67 of the record, we call the Court's attention to the fact that this motion to supplement this record had been filed and that the matter presented a case for discrimination under the Equal Protection Clause.

But the Court, at the time that it entered the order on the motion to -- for the brief, struck this or denied our motion to supplement the record, and that order is in this record contrary to statements -- to counsel's statement.

Justice Felix Frankfurter: Then, you could bring it --

Mr. Thomas H. Anderson: Your Honors, will --

Justice Felix Frankfurter: You could bring it here.

You're on rehearing.

You raise the question and your Supreme Court refused to consider it, is that right?

Mr. Thomas H. Anderson: That's right.

Mr. Thomas H. Anderson: You could then -- you could then, perhaps, or you could then, if you will, bring here the impropriety or illegality under the Federal Constitution of the failure of your Court to allow you to raise it but you can't bring the merits of the point here in any event.

Mr. Thomas H. Anderson: Well, I was just trying to explain to Your Honors that this was not a matter that we had dragged physically into this Court, that it had been presented to and decide by the Supreme Court of Florida.

And the order denying it, contrary to what counsel said, is in the record on page 70.

Now, on the question of this notice --

Justice Hugo L. Black: On page 7?

Mr. Thomas H. Anderson: 70, Justice Black, the motion of appellees to amend the order denying petition to supplement record has been duly considered and is denied.

So -- so, the matter was in the record before the Supreme Court of Florida and it is in this record here.

Now, whether the Court thinks it should be considered under the jurisdictional statement that we filed is quite another matter, but it was presented to the Supreme Court of Florida for its consideration.

Now, I'm sure that my time must be running out and I have only very few minutes left and I shall like to ask Your Honors' indulgence for a few moments to consider this question of this notice.

This is an exhibit which was attached to the complaint in the case which went to the Supreme Court of Florida.

It contains a little paragraph up here which contains the notice of the hearing on this original initiating assessment.

That is not quite as big as the pages o the Miami Herald, but it is a photostatic copy of the page from the paper in which this notice appeared and it's here among the original records of this Court.

Justice Felix Frankfurter: Mr. Anderson, I don't mean to be facetious in the slightest, remotely, in asking you whether, if the notice had been on the front page, you would make the same argument.

Mr. Thomas H. Anderson: Justice Frankfurter, I don't think that's a facetious question and I'm perfectly willing to answer Your Honor candidly.

I do not think it would have made a particle of difference as long as we are concerned with the situation regarding resident property owners.

But of course, and the reason we mention this among other things in our argument is that in one of the opinions of this Court, I think, in the Malaney case, I think it was that Justice Black in that opinion referred to a matter being tucked away upon an obscure page in the newspaper, a notice not directed to anybody in particular and which was not likely to come to the attention even of a person's friends.

And he says that the purpose of notice was to get information to a person, and of course, it follows, and I am not quoting his opinion there, of course it follows that the more inconspicuous the place is, if the notice is published, the least likely it is that it shall come to the attention of him who is to be affected by it.

Justice Felix Frankfurter: Do you think there is no difference between notice to a fellow whether they've got some money in the bank or whether he doesn't file notice or a stockholder and the kind of publicity that is necessarily engendered by a piece of public work done in an -- in the line of Wade City?

Mr. Thomas H. Anderson: I'm glad Your Honor mentioned that point because that question is dealt with in the -- in the -- depositions themselves.

Now, remember, all of these people did not live on all of these streets.

As a matter of fact, the --

Justice Felix Frankfurter: But the houses were there.

Mr. Thomas H. Anderson: No, sir, Your Honor.

The DuPont building is on one corner, the Miami Herald building is on the other, the Ingraham building is on another.

There's a large department store on another, and one of the individuals in the case testified, and he was supported by the city engineer, that the matter of maintenance of these streets, because of these potholes that have been developing all the time, were so constant that they had to put him to do the work on Sundays.

And he said they never had made assessments against him before and why should he have thought that they were going to make assessments for street repairing, and it's a perfectly logical thing.

But to show, Your Honor, that they acted as promptly as they could and to correct the statement which was made by counsel yesterday, this case was not filed three years after this matter was instituted.

The assessment district in the Hamilton case, and by the way that may call for some explanation because some facetious comment was made by counsel regarding the fact that we tried the brief on one side and named it in the other, the case that we actually tried and we were solicited to participate in these proceedings by a group of property owners was the name of Hamilton.

The district was created before the Ganger District and we were ready and had taken our case -- or the city had taken our case to the Supreme Court of Florida before the Ganger case was ever filed.

And the Supreme Court of Florida held that the complaint was a valid -- or was attacked upon the ordinance and it had this notice in it.

So, the whole matter was tried on the assumption that we were trying the Hamilton case and the Ganger case, involving fewer streets in a much smaller district, sort of just came along with it.

When it got to the Supreme Court of Florida, for some unaccountable reason, the opinion was written in the Ganger case, but all the main briefs are dealing with these questions were entitled in the Hamilton case and that is why we have stressed the fact of Hamilton although, of course, the names make no difference.

But now, on the question of this timing, the confirming resolution in the Hamilton district was added on March 18th, 1953.

Then, the city sent bills to these people.

Counsel has said, “Well, we couldn't possibly have given them personal notice of the assessment because it would have been too expensive and the ownerships might have changed.”

But when they sent them the bills, they mailed it out to the right people and all of their names and addresses were on file with the city clerk, and they are in the records of this Court as represented by the assessment rule.

Now, within 48 days after that resolution was confirmed, we filed the Hamilton suit.

It was filed on May 5th, 1953.

It went to -- the judge ruled in our favor on the motion to dismiss that complaint in July and it was decided in our favor per curiam on the Supreme Court of Florida in the following September.

So, it was not any lapse of time, such as two or three years, or any period like that.

It failed between the time of the doing -- the happening of these events and the challenge to it.

And indeed, I do not see how the people could have gotten together and gotten into Court much more quickly than they did and are about the same amount of time lapsed in the Ganger case.

That suit was filed or the confirming resolution there was done in the year later, on February 18th, 1954, and the suit was filed on April 1st, fall.

So --

Justice Hugo L. Black: Did the Act itself provide for any apportionment of the burden on the taxpayer's prescribing -- on the land owners prescribing exactly how it should be proportioned?

Mr. Thomas H. Anderson: No, Your Honor.

The Act permits the city manager to make a recommendation to the city commission as to how the benefit shall be assessed and it specifies that it may be on the front-foot rule.

And the city manager made such a recommendation and the city commission adopted it.

Justice Hugo L. Black: That -- it was the way it was done.

Mr. Thomas H. Anderson: That was the way it was handled.

Now --

Justice Hugo L. Black: Is that in -- authorized by the Act?

Mr. Thomas H. Anderson: That was the -- there was no deviation from the procedure prescribed by the statute.

They followed the statute all the way through.

Now, apparently, I just got a few moments to conclude.

Justice Potter Stewart: Let me just ask one basic question.

What was the prejudice that resulted from the lack of notice?

Mr. Thomas H. Anderson: The city claims that by reason of our failure to object in the administrative proceedings and by our failure to take the 10-day appeal to the Circuit Court, we were thereafter precluded from objecting to any of the notices or any of the resolutions and thereby, we have become estopped to set up the fact that benefits did not accrue to us.

But the question was actually -- have I answered Your Honor's question?

Justice Potter Stewart: No -- no, not entirely because was -- was the basic objection that this was the kind of an improvement that could not be levied against abiding property owners or was the basic -- or was there also an objection that even if an assessment against the abiding owners was proper that the equalization procedure, whatever you call it in Miami, the apportionment, as Justice Black has called it, was unfair?

Mr. Thomas H. Anderson: No, sir, we do not challenge that.

Justice Potter Stewart: Well, therefore --

Mr. Thomas H. Anderson: We did challenge --

Justice Hugo L. Black: I want to be sure.

You have no challenge to fact?

Mr. Thomas H. Anderson: That the apportionment proceeding was invalid?

Justice Hugo L. Black: That the street in front of the DuPont building was -- the owner of it was charged according to the front-foot, the same as the street of the homeowner three miles away?

Mr. Thomas H. Anderson: There's no such charge as that made in the --

Justice Hugo L. Black: No such challenges?

Mr. Thomas H. Anderson: No such charge.

Justice Potter Stewart: The challenge is -- the challenge is that this was not the kind of an approvement -- improvement that could be paid for at all by assessing the abiding property owners, is that it?

Mr. Thomas H. Anderson: On the grounds that the city had no right to resurface --

Justice Potter Stewart: That's right.

Mr. Thomas H. Anderson: -- any charge.

Justice Felix Frankfurter: But you --

Mr. Thomas H. Anderson: But also --

Justice Felix Frankfurter: Could you have raised that question in your Circuit Court?

Mr. Thomas H. Anderson: If we had proceeded within the 10-day period that they said we should have proceeded, instead of 48 days, we could have raised any question we wanted in the Circuit Court.

Justice Felix Frankfurter: So --

Mr. Thomas H. Anderson: So, they are trying to bind us by a 10-day period when, as a matter of fact, only 48 days has elapsed.

Now --

Justice Potter Stewart: Let me -- excuse me.

Let me ask me one further question, following my first.

Without -- without going into detail as to which Justice -- to which judges of the Florida Supreme Court defected to the enemy and which came back over your side and so on --

Mr. Thomas H. Anderson: Well, I could --

Justice Potter Stewart: How do -- what was the basis of that Court's ultimate decision?

Did it reach the merits of your claim at all?

Mr. Thomas H. Anderson: The basis of the Court's decision was -- the basis of the Florida Supreme Court's final determination was that the property owners were estopped to set up a ward of benefits because they had failed to take the administrative proceedings that were required by the statute and to bring a proceeding in the Circuit Court of Dade County within 10 days after the final confirmation of the assessment.

Justice Hugo L. Black: Is the gist of your contention there then that the State or city, as imposed benefit, has said that each one who was benefited must be -- must pay it?

And your contention is that the State has no constitutional authority under the Federal Constitution to impose that burden on you according to benefit?

Mr. Thomas H. Anderson: No, Your Honor.

We don't question the State's right to impose the burden of the benefits upon us or, really, to impose the --

Justice Hugo L. Black: Well, are you saying --

Mr. Thomas H. Anderson: -- benefits.

Justice Hugo L. Black: Are you saying as you indicated a while ago that if the legislature reaches a conclusion that a whole street should be paved or resurfaced and reaches the conclusion that that will benefit the property owners, that it doesn't have the constitutional power to do that?

Mr. Thomas H. Anderson: Well, now, this Court has held --

Justice Hugo L. Black: Is that --

Mr. Thomas H. Anderson: -- the legislative --

Justice Hugo L. Black: -- is that the basis of your contention?

Mr. Thomas H. Anderson: No, sir.

No, Your -- Your Honor.

This Court has held that legislative determination of benefits come to this Court with the presumption of correctness about them.

I will not be and say that point.

Justice Potter Stewart: May I -- may I ask one -- I don't want to interrupt but I think maybe I can clarify, at least in my own mind.

Is your basic claim that you were denied due process procedurally because you were denied an opportunity to make this contention in the -- in the State of Florida?

Mr. Thomas H. Anderson: That is the constitutional question, but it must be understood with the light of this statement, that actually, the question of benefits was tried by the Circuit Court and they found that we had received no benefit.

Justice Potter Stewart: Well, that was -- that was the purpose of my first question --

Mr. Thomas H. Anderson: That's right.

Justice Potter Stewart: -- as to where the prejudice was.

Mr. Thomas H. Anderson: But now, the Supreme Court of Florida says, in effect, that the Circuit Court never had any right to try this question of benefits because we had not objected in the administrative proceedings and taken a special case to the Circuit Court within 10 days.

Justice Felix Frankfurter: And is your -- is your answer to that answer is your -- do you deal with that by the contention that requiring you to do so within 10 days violates due process because it doesn't give you time enough, is that it?

Mr. Thomas H. Anderson: We have raised that as one of our questions, --

Justice Felix Frankfurter: Did you?

Mr. Thomas H. Anderson: -- yes, sir.

Justice Felix Frankfurter: It's not one of your questions.

It's essential --

Mr. Thomas H. Anderson: Well, it's sort of mixed in there.

Justice Felix Frankfurter: Well --

Mr. Thomas H. Anderson: I think there's two separate questions, whether we have the notice and whether the 10-day limitation is also a due process --

Justice Felix Frankfurter: Yes.

Well, now --

Mr. Thomas H. Anderson: -- Mr. Justice Frankfurter.

I'm not trying to dodge your question, sir.

Justice Felix Frankfurter: I didn't mean you -- I didn't remotely said you did but I just want to be clear.

If a state statute says that you must raise these questions of non-benefit within 10 days and you didn't do it, you could object to what has happened to you only if there were some constitutional vice in the limitation of the 10 days.

Is that what you claim?

Mr. Thomas H. Anderson: I say that and I also say that if the -- if the department which imposed the burden had not also conferred a benefit that that would be a constitutional question which we would likewise have a right to.

Justice Felix Frankfurter: But you could have raised that question, you said, in the Circuit --

Mr. Thomas H. Anderson: But we never had any notice, Your Honor.

Justice Felix Frankfurter: No, but the --

Mr. Thomas H. Anderson: So, you can't raise something without --

Justice Felix Frankfurter: Put the notice question aside --

Mr. Thomas H. Anderson: All right.

Justice Felix Frankfurter: -- for a moment.

I understood you to say that in the Circuit Court, you could review and raise every question --

Mr. Thomas H. Anderson: That's right.

Justice Felix Frankfurter: -- as to the validity of the administrative assessment.

Mr. Thomas H. Anderson: That's right.

Justice Felix Frankfurter: Is that right?

Mr. Thomas H. Anderson: That's right.

Justice Felix Frankfurter: And in order -- putting the notice question aside --

Mr. Thomas H. Anderson: That's right.

Justice Felix Frankfurter: -- you must attack that requirement of your State to raise it that way on the ground that that in itself is a denial of due process.

Mr. Thomas H. Anderson: Yes, Your Honor.

We think that's correct.

Justice Felix Frankfurter: That is, 10 days is too short.

Mr. Thomas H. Anderson: 10 days is too short.

Justice Felix Frankfurter: We're assuming accustomed to dilatoriness in the merit of litigation but we think 10 days is nothing.

Chief Justice Earl Warren: All right, your time is up, Mr. --