Ganger v. Miami

PETITIONER:Ganger
RESPONDENT:Miami
LOCATION:Union Station

DOCKET NO.: 153
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 359 US 64 (1959)
ARGUED: Mar 02, 1959 / Mar 03, 1959
DECIDED: Mar 09, 1959

Facts of the case

Question

  • Oral Argument – March 02, 1959
  • Audio Transcription for Oral Argument – March 02, 1959 in Ganger v. Miami

    Audio Transcription for Oral Argument – March 03, 1959 in Ganger v. Miami

    Earl Warren:

    Number 153, Norton R. Ganger, et al., versus City of Miami.

    Mr. Ferrell, you may proceed with your argument.

    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.

    Hugo L. Black:

    Do you mean —

    Milton M. Ferrell:

    But —

    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?

    Milton M. Ferrell:

    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.

    Hugo L. Black:

    Then, you would have —

    Milton M. Ferrell:

    But —

    Hugo L. Black:

    Then, you would have had to judge it by the face of the statute —

    Milton M. Ferrell:

    That’s right, sir.

    That’s what this Court held.

    This Court —

    Hugo L. Black:

    — or is applied.

    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.

    Milton M. Ferrell:

    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 —

    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 —

    Milton M. Ferrell:

    Well —

    Hugo L. Black:

    — reach of your argument.

    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 —

    Hugo L. Black:

    They haven’t determined the amount.

    Milton M. Ferrell:

    No, sir.

    Hugo L. Black:

    But you’re —

    Milton M. Ferrell:

    They can’t do that.

    Hugo L. Black:

    You are saying that they have determined that it’s a benefit.

    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 —

    Hugo L. Black:

    Let me ask you one question there because you bring up another point.

    Milton M. Ferrell:

    Yes, sir.

    Hugo L. Black:

    You say they have a right to go into court —

    Milton M. Ferrell:

    Yes, sir.

    Hugo L. Black:

    — after a certain time.

    Milton M. Ferrell:

    Yes, sir.

    Hugo L. Black:

    Now, if they didn’t have a notice, how could they go?

    Milton M. Ferrell:

    Well, they have had a notice —

    Hugo L. Black:

    I understand that.

    Milton M. Ferrell:

    — by publication.

    Hugo L. Black:

    I understand that.

    Milton M. Ferrell:

    Yes, sir.

    Hugo L. Black:

    But —

    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.

    Milton M. Ferrell:

    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 —

    Felix Frankfurter:

    Does that —

    Milton M. Ferrell:

    — the People —

    Felix Frankfurter:

    Does that dispose of the relevance of the case?

    Milton M. Ferrell:

    Sir?

    Felix Frankfurter:

    Why does that dispose of the relevance of the case, because of the condemnation procedure?

    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 —

    Felix Frankfurter:

    That’s a different point.

    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.

    Felix Frankfurter:

    What’s your authority for saying that?

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

    Milton M. Ferrell:

    Well —

    Felix Frankfurter:

    The association of the city saying —

    Milton M. Ferrell:

    I’ll go behind the record.

    Felix Frankfurter:

    That’s in the record.

    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.

    Felix Frankfurter:

    But you haven’t made a study, have you?

    Milton M. Ferrell:

    Not a detailed —

    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?

    Milton M. Ferrell:

    No, sir.

    I’ve never made a detailed study of that.

    Felix Frankfurter:

    How many taxpayers were involved in this?

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

    Milton M. Ferrell:

    Well, all of this — this —

    Felix Frankfurter:

    In numbers.

    In numbers, about?

    Milton M. Ferrell:

    Well, I couldn’t give —

    Felix Frankfurter:

    50 or 500?

    Milton M. Ferrell:

    I think it would probably — all of these things would be more than 500.

    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.

    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 —

    Felix Frankfurter:

    Alike —

    Milton M. Ferrell:

    Area.

    Felix Frankfurter:

    Alike —

    Milton M. Ferrell:

    Yes, sir.

    Felix Frankfurter:

    It wouldn’t be that —

    Milton M. Ferrell:

    No, sir.

    Felix Frankfurter:

    — John Smith —

    Milton M. Ferrell:

    It would be alike on —

    Felix Frankfurter:

    — would be benefited but William Jones wouldn’t be.

    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 —

    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.

    Felix Frankfurter:

    That’s the —

    Milton M. Ferrell:

    Well, if you —

    Felix Frankfurter:

    That’s the core of the —

    Milton M. Ferrell:

    Yes, sir.

    Felix Frankfurter:

    — petitioner’s case.

    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.

    Felix Frankfurter:

    Or put it on —

    Milton M. Ferrell:

    They would have to pay it.

    Felix Frankfurter:

    Put it on the front page with stream of headline instead of on the second page.

    Milton M. Ferrell:

    Well, it was under —

    Felix Frankfurter:

    That’s the constitutional argument.

    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.

    Charles E. Whittaker:

    May I ask you — may I ask you, sir —

    Milton M. Ferrell:

    Yes, sir.

    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?

    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.

    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 —

    Milton M. Ferrell:

    Well —

    Hugo L. Black:

    — that that dispenses with any notice to them.

    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.

    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 —

    Milton M. Ferrell:

    That’s —

    Hugo L. Black:

    — benefit is passed on?

    Milton M. Ferrell:

    That’s what you held.

    Potter Stewart:

    On what cases?

    Hugo L. Black:

    I didn’t think so, but maybe so.

    Milton M. Ferrell:

    You’ve held that in the case of Memphis & C.R. Company versus Pace.

    Potter Stewart:

    I just reread that opinion —

    Milton M. Ferrell:

    Yes, sir.

    Potter Stewart:

    — in the last five minutes and I couldn’t find such holding.

    Milton M. Ferrell:

    Well, the next case on it is Browning versus Hooper, 269 U.S. 396.

    Potter Stewart:

    And you say those cases stand —

    Milton M. Ferrell:

    Yes.

    Potter Stewart:

    — the proposition?

    Milton M. Ferrell:

    These —

    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.

    Milton M. Ferrell:

    What I say is this.

    William O. Douglas:

    Counsel, those are cases where there has — where there was a hearing in the —

    Milton M. Ferrell:

    This is not —

    William O. Douglas:

    — as used in evidence, pro and con on the benefits, and the court said that there was the —

    Milton M. Ferrell:

    Well, they —

    William O. Douglas:

    — evidence that the property owners did no — did not overcome that in the —

    Milton M. Ferrell:

    Yes, sir, but they may —

    William O. Douglas:

    — drainage district.

    William J. Brennan, Jr.:

    Therefore, there was no discrimination.

    Therefore, there was no oppressive arbitrary practice.

    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.

    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.

    Milton M. Ferrell:

    Yes, sir.

    Earl Warren:

    It seems to me that that bares on —

    Milton M. Ferrell:

    All right.

    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.

    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 —

    William J. Brennan, Jr.:

    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?

    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.

    Earl Warren:

    Mr. Ferrell, I’d still like to ask you —

    Milton M. Ferrell:

    Yes, sir?

    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 —

    Milton M. Ferrell:

    Yes, sir?

    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.

    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.

    Earl Warren:

    And on —

    Milton M. Ferrell:

    And —

    Earl Warren:

    On some of those —

    Milton M. Ferrell:

    Of course, I met counsel here in each one of them.

    Earl Warren:

    You mean, on some of those, the city has abandoned its claim to —

    Milton M. Ferrell:

    No, sir.

    No, sir, we haven’t abandoned.

    Earl Warren:

    Well, what have you — what —

    Milton M. Ferrell:

    What —

    Earl Warren:

    Is it a fact in that though, that you did not assess them as you did in this particular area —

    Milton M. Ferrell:

    Well —

    Earl Warren:

    — where the proceedings were the same?

    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 —

    Earl Warren:

    Did they do the work?

    Milton M. Ferrell:

    — as he has got in his record.

    Sir?

    Earl Warren:

    Did they do work there?

    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.

    Earl Warren:

    Yes.

    Milton M. Ferrell:

    So, the work had, evidently, been completed and the notice then as to that was — that —

    Earl Warren:

    They —

    Milton M. Ferrell:

    — is when they held up.

    Earl Warren:

    They just stopped the —

    Milton M. Ferrell:

    Yes, sir.

    Earl Warren:

    — proceeding there and did not assess those people.

    Milton M. Ferrell:

    That’s right.

    Earl Warren:

    But they assessed these people.

    Now, why was that done?

    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 —

    Earl Warren:

    Referring to this particular case —

    Milton M. Ferrell:

    Yes.

    Earl Warren:

    — where that says this?

    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 —

    Earl Warren:

    Yes.

    Milton M. Ferrell:

    — but which the Supreme Court did not allow in the record.

    Earl Warren:

    Yes.

    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?

    Milton M. Ferrell:

    I think here is the difference.

    It says —

    Felix Frankfurter:

    And secondly, is this a matter that’s in the record or is this all —

    Milton M. Ferrell:

    No, sir.

    It’s —

    Felix Frankfurter:

    — outside the record?

    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.

    Felix Frankfurter:

    Well, now, is this in the —

    Milton M. Ferrell:

    He had not raised that point before.

    Felix Frankfurter:

    Well, is it before us properly?

    I don’t mean —

    Milton M. Ferrell:

    No, sir.

    Felix Frankfurter:

    — is it physically printed in —

    Milton M. Ferrell:

    No, sir, it’s not.

    Felix Frankfurter:

    — in this volume?

    Is it before us —

    Milton M. Ferrell:

    Yes, sir.

    He has put it in this record.

    Felix Frankfurter:

    — in the sense that it was before the Supreme Court of Florida?

    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.

    Felix Frankfurter:

    Now, the question —

    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.

    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 —

    Milton M. Ferrell:

    No, sir.

    Felix Frankfurter:

    — now under question?

    Isn’t that the point?

    Milton M. Ferrell:

    No, sir.

    Here is what it is, You see —

    Felix Frankfurter:

    I’m not saying that that’s the point before us, but isn’t that the endeavor —

    Milton M. Ferrell:

    Well —

    Felix Frankfurter:

    — behind —

    Milton M. Ferrell:

    The —

    Felix Frankfurter:

    — raising —

    Milton M. Ferrell:

    Yes, sir.

    Felix Frankfurter:

    — the question?

    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 —

    Felix Frankfurter:

    And that would be —

    Milton M. Ferrell:

    I will tell you —

    Felix Frankfurter:

    That might be discrimination and might be on equal protection of the law.

    Milton M. Ferrell:

    It might be.

    Felix Frankfurter:

    Now, is that properly before us?

    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.

    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 —

    Milton M. Ferrell:

    Yes, sir.

    — to file a brief.

    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.

    On the federal constitutional question?

    Milton M. Ferrell:

    Yes, sir.

    And —

    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 —

    A written motion?

    Milton M. Ferrell:

    A written motion —

    I see.

    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.

    Are the briefs — are the briefs on the two appeals to the Florida Supreme Court here in our files?

    Milton M. Ferrell:

    No, sir, they are not.

    Milton M. Ferrell:

    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 —

    Well, never mind about that but for myself, and this is a different feeling on the bench, I’d like to see those briefs.

    Milton M. Ferrell:

    All right, sir.

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

    Hugo L. Black:

    Where is that jurisdiction perspective?

    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 —

    Earl Warren:

    I think, Mr. Ferrell, we’ll have to read that ourselves.

    Your time has expired.

    Milton M. Ferrell:

    Thank you, sir.

    Thomas H. Anderson:

    Mr. Chief Justice.

    Earl Warren:

    Mr. Anderson.

    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.

    Felix Frankfurter:

    Suppose —

    Thomas H. Anderson:

    Benefit —

    Felix Frankfurter:

    May I ask you a question?

    Thomas H. Anderson:

    Yes, sir.

    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?

    Thomas H. Anderson:

    Your Honor, I do not think so, but —

    Felix Frankfurter:

    You don’t?

    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.

    Felix Frankfurter:

    May I ask you this?

    Thomas H. Anderson:

    Yes.

    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?

    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.

    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?

    Thomas H. Anderson:

    It is my understanding that the legislature may confer no such power upon the — upon the municipality.

    Felix Frankfurter:

    All I can say is if that’s the law, then I’m greatly surprised.

    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.

    Felix Frankfurter:

    No, I am surprised if your — your statement of the law is wrong.

    Thomas H. Anderson:

    Well —

    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.

    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.

    Felix Frankfurter:

    Well, I bet you think that Albany may do so?

    Thomas H. Anderson:

    No, sir, I do not think that power exists.

    Felix Frankfurter:

    You think that the legislature may do so.

    Thomas H. Anderson:

    The legislature may, as in the case of the drainage districts, because everybody knows what is going on in the legislature.

    Felix Frankfurter:

    They do?

    Thomas H. Anderson:

    Well, they are theoretically assumed to know that, Your Honor.

    Thomas H. Anderson:

    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 —

    Felix Frankfurter:

    Yes.

    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 —

    Felix Frankfurter:

    This does not mean —

    Thomas H. Anderson:

    Sir?

    Felix Frankfurter:

    Was this repaving done throughout the city?

    Thomas H. Anderson:

    It was not a repaving, Your Honor.

    It was a resurfacing of the street.

    Felix Frankfurter:

    Resurfacing, was that done throughout the City of Miami?

    Thomas H. Anderson:

    No, sir.

    It was done in this case —

    Felix Frankfurter:

    It was done in the restricted territory, wasn’t it?

    Thomas H. Anderson:

    Sir?

    Felix Frankfurter:

    It was done in the restricted territory.

    Thomas H. Anderson:

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

    Felix Frankfurter:

    Now, what does that mean, what you’ve just read that it was general benefit, not special?

    Thomas H. Anderson:

    That is to say —

    Felix Frankfurter:

    Saying that everybody in the United States and most of those read benefits.

    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.

    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?

    Thomas H. Anderson:

    No, sir, this was Justice Thornal.

    Now, you should —

    Felix Frankfurter:

    Thornal.

    Thomas H. Anderson:

    — not sit in judgment on him.

    Felix Frankfurter:

    Should we say he was right the first time but wrong the second?

    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.

    Felix Frankfurter:

    What —

    Thomas H. Anderson:

    He stated that to be a fact.

    Felix Frankfurter:

    Why couldn’t he —

    Thomas H. Anderson:

    Because the question of benefits was not seriously challenged in the Supreme Court.

    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.

    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.

    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?

    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.

    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?

    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.

    Hugo L. Black:

    What did that Court decide as the findings of fact —

    Thomas H. Anderson:

    Well, on that point —

    Hugo L. Black:

    — in Florida?

    Thomas H. Anderson:

    On that point, the — Justice Thomas had this to say.

    Hugo L. Black:

    But what did the majority of the Court decide?

    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.

    Earl Warren:

    Is that the opinion of the Court?

    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.

    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 —

    Thomas H. Anderson:

    I do not find that as a fact, Justice Black.

    Hugo L. Black:

    You do not say that?

    Thomas H. Anderson:

    But I think it’s implicit in the Court’s opinion, although the case —

    Hugo L. Black:

    Well, assuming —

    Thomas H. Anderson:

    — turned upon the —

    Hugo L. Black:

    Assuming it’s implicit in it, are you saying that in the second opinion, they didn’t discuss the —

    Thomas H. Anderson:

    That’s right.

    Hugo L. Black:

    — facts at all?

    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.

    William J. Brennan, Jr.:

    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 —

    Thomas H. Anderson:

    In the jurisdictional statement?

    William J. Brennan, Jr.:

    Yes, where?

    Thomas H. Anderson:

    It is raised in the brief, Justice Brennan.

    William J. Brennan, Jr.:

    Now, where do you expect me to read that.

    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.

    William J. Brennan, Jr.:

    How are you entitled to benefits?

    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.

    Felix Frankfurter:

    Then, you could bring it —

    Thomas H. Anderson:

    Your Honors, will —

    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?

    Thomas H. Anderson:

    That’s right.

    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.

    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 —

    Hugo L. Black:

    On page 7?

    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.

    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.

    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.

    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?

    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 —

    Felix Frankfurter:

    But the houses were there.

    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.

    Thomas H. Anderson:

    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 —

    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?

    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.

    Hugo L. Black:

    That — it was the way it was done.

    Thomas H. Anderson:

    That was the way it was handled.

    Now —

    Hugo L. Black:

    Is that in — authorized by the Act?

    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.

    Potter Stewart:

    Let me just ask one basic question.

    What was the prejudice that resulted from the lack of notice?

    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?

    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?

    Thomas H. Anderson:

    No, sir, we do not challenge that.

    Potter Stewart:

    Well, therefore —

    Thomas H. Anderson:

    We did challenge —

    Hugo L. Black:

    I want to be sure.

    Hugo L. Black:

    You have no challenge to fact?

    Thomas H. Anderson:

    That the apportionment proceeding was invalid?

    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?

    Thomas H. Anderson:

    There’s no such charge as that made in the —

    Hugo L. Black:

    No such challenges?

    Thomas H. Anderson:

    No such charge.

    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?

    Thomas H. Anderson:

    On the grounds that the city had no right to resurface —

    Potter Stewart:

    That’s right.

    Thomas H. Anderson:

    — any charge.

    Felix Frankfurter:

    But you —

    Thomas H. Anderson:

    But also —

    Felix Frankfurter:

    Could you have raised that question in your Circuit Court?

    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.

    Felix Frankfurter:

    So —

    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 —

    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 —

    Thomas H. Anderson:

    Well, I could —

    Potter Stewart:

    How do — what was the basis of that Court’s ultimate decision?

    Did it reach the merits of your claim at all?

    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.

    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?

    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 —

    Hugo L. Black:

    Well, are you saying —

    Thomas H. Anderson:

    — benefits.

    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?

    Thomas H. Anderson:

    Well, now, this Court has held —

    Hugo L. Black:

    Is that —

    Thomas H. Anderson:

    — the legislative —

    Hugo L. Black:

    — is that the basis of your contention?

    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.

    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?

    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.

    Potter Stewart:

    Well, that was — that was the purpose of my first question —

    Thomas H. Anderson:

    That’s right.

    Potter Stewart:

    — as to where the prejudice was.

    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.

    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?

    Thomas H. Anderson:

    We have raised that as one of our questions, —

    Felix Frankfurter:

    Did you?

    Thomas H. Anderson:

    — yes, sir.

    Felix Frankfurter:

    It’s not one of your questions.

    It’s essential —

    Thomas H. Anderson:

    Well, it’s sort of mixed in there.

    Felix Frankfurter:

    Well —

    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 —

    Felix Frankfurter:

    Yes.

    Well, now —

    Thomas H. Anderson:

    — Mr. Justice Frankfurter.

    I’m not trying to dodge your question, sir.

    Felix Frankfurter:

    I didn’t mean you — I didn’t remotely said you did but I just want to be clear.

    Felix Frankfurter:

    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?

    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.

    Felix Frankfurter:

    But you could have raised that question, you said, in the Circuit —

    Thomas H. Anderson:

    But we never had any notice, Your Honor.

    Felix Frankfurter:

    No, but the —

    Thomas H. Anderson:

    So, you can’t raise something without —

    Felix Frankfurter:

    Put the notice question aside —

    Thomas H. Anderson:

    All right.

    Felix Frankfurter:

    — for a moment.

    I understood you to say that in the Circuit Court, you could review and raise every question —

    Thomas H. Anderson:

    That’s right.

    Felix Frankfurter:

    — as to the validity of the administrative assessment.

    Thomas H. Anderson:

    That’s right.

    Felix Frankfurter:

    Is that right?

    Thomas H. Anderson:

    That’s right.

    Felix Frankfurter:

    And in order — putting the notice question aside —

    Thomas H. Anderson:

    That’s right.

    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.

    Thomas H. Anderson:

    Yes, Your Honor.

    We think that’s correct.

    Felix Frankfurter:

    That is, 10 days is too short.

    Thomas H. Anderson:

    10 days is too short.

    Felix Frankfurter:

    We’re assuming accustomed to dilatoriness in the merit of litigation but we think 10 days is nothing.

    Earl Warren:

    All right, your time is up, Mr. —