The principle underlying special assessments upon private
property to meet the cost of public improvements is that the
property upon which they are imposed is peculiarly benefited, and
therefore that the owners do not in fact pay anything in excess of
what they receive by reason of such improvement.
The exaction from the owner of private property of the cost of a
public improvement in substantial excess of the special benefits
accruing to him is, to the extent of such excess, a taking, under
the guise of taxation, of private property for public use without
compensation; but unless such excess of cost over special benefits
be of a material character, it ought not to be regarded by a court
of equity, when its aid is invoked to restrain the enforcement of a
special assessment.
Page 172 U. S. 270
The Constitution of Ohio authorizes the taking of private
property for the purpose of making public roads, but requires a
compensation to be made therefor to the owner, to be assessed by a
jury, without deduction for benefits. The statutes of the state,
quoted or referred to in the opinion of the Court, make provisions
for the manner in which this power is to be exercised. In the case
of the opening of a new road, they authorize a special assessment
upon bounding and abutting property by the front foot for this
entire cost and expense of the improvement, without taking special
benefits into account. The alleged improvement in this case was the
construction through property of the appellee of a street 300 feet
in length and 50 feet in width, to connect two streets of that
width running from each end in opposite directions. In the
proceedings in this case, the corporation of Norwood manifestly
went upon the theory that the .abutting property could be made to
bear the whole cost of the new road, whether it was benefited or
not to the extent of such cost, and the assessment was made
accordingly. This suit was brought to obtain a decree restraining
the corporation from enforcing the assessment against the
plaintiff's abutting property, which decree was granted.
Held that the assessment was in itself an illegal one
because it rested upon a basis that excluded any consideration of
benefits; that therefore a decree enjoining the whole assessment
was the only appropriate decree; that it was not necessary to
tender, as a condition of relief being granted to the plaintiff,
any sum as representing what she supposed, or might guess, or was
willing to concede was the excess of costs over any benefits
accruing to the property, and that the legal effect of the decree
was only to prevent the enforcement of the particular assessment in
question, leaving the corporation free to take such steps as might
be within its power to make a new assessment upon the plaintiff's
abutting property for so much of the expense of opening the street
as might be found equal to the special benefits accruing to the
property.
The case is stated in the opinion.
MR. JUSTICE HARLAN delivered the opinion of the Court.
This case arises out of the condemnation of certain lands for
the purpose of opening a street in the Village of Norwood, a
municipal corporation in Hamilton county, Ohio.
The particular question presented for consideration involves the
validity of an ordinance of that village assessing upon
Page 172 U. S. 271
the appellee's land, abutting on each side of the new street, an
amount covering, not simply a sum equal to that paid for the land
taken for the street, but, in addition, the costs and expenses
connected with the condemnation proceedings.
By the final decree of the circuit court of the United States,
it was adjudged that the assessment complained of was in violation
of the Fourteenth Amendment of the Constitution of the United
States, forbidding any state from depriving a person of property
without due process of law, and the village was perpetually
enjoined from enforcing the assessment. 74 F. 997.
The present appeal was prosecuted directly to this Court because
the case involved the construction and application of the
Constitution of the United States.
It will conduce to a clear understanding of the case to
ascertain the powers of the village under the Constitution and
statutes of Ohio, and to refer somewhat in detail to the
proceedings instituted for the opening of the street through
appellee's property.
By the Constitution of Ohio it is declared:
"Private property shall ever be held inviolate, but subservient
to the public welfare. When taken in time of war or other public
exigency imperatively requiring its immediate seizure, or for the
purpose of making or repairing roads, which shall be open to the
public, without charge, a compensation shall be made to the owner,
in money, and in all other cases, where private property shall be
taken for public use, a compensation therefor shall first be made
in money, and such compensation shall be assessed by a jury,
without deduction for benefits to any property of the owner."
Const.Ohio 1851, Art. 1, § 19, Bill of Rights; 3 Bates
Ann.St.Ohio 3525.
Cities and villages in Ohio are by statute given power to lay
off, establish, open, widen, narrow, straighten, extend, keep in
order and repair, and light streets, alleys, public grounds, and
buildings, wharves, landing places, bridges, and market spaces
within the corporation, and to appropriate private property for the
use of the corporation. And
"each city and village may appropriate, enter upon, and hold
real
Page 172 U. S. 272
estate within its corporate limits for the following purposes,
but no more shall be taken or appropriated than is reasonably
necessary for the purpose to which it is to be applied: (1) for
opening, widening, straightening and extending streets, alleys and
avenues; also for obtaining gravel or other material for the
improvement of the same, and for this purpose the right to
appropriate shall not be limited to lands lying within the limits
of the corporation. . . ."
1 Rev.Stat.Ohio 1890, § 1692, subds. 18, 33, and § 2232, pp.
429, 430, Title, Cities and Villages; Enumeration of Powers, and p.
572, Title Appropriation by Cities and Villages of Private Property
to Public Use.
Other provisions of the statute prescribe the steps to be taken
in the appropriation by a municipal corporation of private property
for public purposes. §§ 2233 to 2261, inclusive.
It is further provided by the statutes of Ohio (1890) Title XII,
Assessments, etc., c. 4, as follows:
"SEC. 2263. When the corporation appropriates or otherwise
acquires lots or lands for the purpose of laying off, opening,
extending, straightening, or widening a street, alley, or other
public highway, or is possessed of property which it desires to
improve for street purposes, the council may assess the cost and
expenses of such appropriation or acquisition, and of the
improvement, or of either, or of any part of either, upon the
general tax list, in which case the same shall be assessed upon all
the taxable real and personal property in the corporation."
"SEC. 2264. In the cases provided for in the last section, and
in all cases where an improvement of any kind is made of an
existing street, alley or other public highway, the council may
decline to assess the costs and expenses in the last section
mentioned or any part thereof, or the costs and expenses or any
part thereof of such improvement, except as hereinafter mentioned,
on the general tax list, in which event such costs and expenses, or
any part thereof which may not be so assessed on the general tax
list, shall be assessed by the council on the abutting and such
adjacent and contiguous or other benefited lots and lands in the
corporation,
either in proportion to the benefits which
may result from the improvement,
Page 172 U. S. 273
or according to the value of the property assessed,
or by
the front foot of the property bounding and
abutting upon the improvement, as the council, by ordinance
setting forth specifically the lots and lands to be assessed, may
determine before the improvement is made, and in the manner and
subject to the restrictions herein contained, and the assessments
shall be payable in one or more installments, and at such times as
the council may prescribe. . . ."
1 Rev.Stat. Ohio, p. 581.
Section 2271 provides:
"In cities of the first grade of the first class, and in
corporations in counties containing a city of the first grade of
the first class, the tax or assessment especially levied or
assessed upon any lot or land for any improvement, shall not,
except as provided in § 2272, exceed twenty-five percentum of the
value of such lot or land after the improvement is made, and the
cost exceeding that percentum shall be paid by the corporation out
of its general revenue, . . . and whenever any street or avenue is
opened, extended, straightened, or widened, the special assessment
for the cost and expense, or any part thereof, shall be assessed
only on the lots and lands bounding and abutting on such part
or parts of said street or avenue so improved, and shall
include of such lots and lands only to a fair average depth of lots
in the neighborhood, but shall also include other lots and parts
thereof and lands to such depth, and whenever at least one-half in
width of any street or avenue has been dedicated for such purpose
from the lots and lands lying on one side of the line of such
street or avenue, and such street or avenue is widened by taking
from lots and lands on the other side thereof, no part of the cost
and expense thus increased [incurred] shall be assessed upon the
lots and lands lying on said first-mentioned side, but only upon
the other side, and as aforesaid, but said special assessment shall
not be in any case in excess of benefits."
1 Rev.Stat.Ohio, p. 586.
Section 2272 relates to assessments for improvements made in
conformity with the petition of the owners of property.
By section 2277 it is provided that
"in cases wherein it is determined to assess the whole or any
part of the cost of an improvement upon the lot or lands bounding
or abutting
Page 172 U. S. 274
upon the same, or upon any other lots or lands benefited
thereby, as provided in § 2264, the council may require the board
of improvements, or board of public works, as the case may be, or
may appoint three disinterested freeholders of the corporation or
vicinity, to report to the council an estimated assessment of such
cost on the lot or lands to be charged therewith, in proportion, as
nearly as may be, to the benefits which may result from the
improvement to the several lots or parcels of land so assessed, a
copy of which assessment shall be filed in the office of the clerk
of the corporation for public inspection."
Section 2284 is in these words:
"The cost of any improvement contemplated in this chapter shall
include the purchase money of real estate, or any interest therein,
when the same has been acquired by purchase, or the value thereof
as found by the jury, where the same has been appropriated, the
costs and expenses of the proceedings, the damages assessed in
favor of any owner of adjoining lands and interest thereon, the
costs and expenses of the assessment, the expense of the
preliminary and other surveys, and of printing, publishing the
notices and ordinances required, including notice of assessment,
and serving notices on property owners, the cost of construction,
interest on bonds, where bonds have been issued in anticipation of
the collection of assessments, and any other necessary
expenditure."
By an ordinance approved October 19, 1891, the village declared
its intention to condemn and appropriate, and by that ordinance
condemned and appropriated the lands or grounds in question for the
purpose of opening and extending Ivanhoe avenue, and, in order to
make such appropriation effectual, the ordinance directed the
institution of the necessary proceedings in court for an inquiry
and assessment of the compensation to be paid for the property to
be condemned.
The ordinance provided that the cost and expense of the
condemnation of the property, including the compensation paid to
the owners, the cost of the condemnation proceedings, the cost of
advertising, and all other costs, and the interest on bonds issued,
if any, should be assessed "per front foot upon the property
bounding and abutting on that part of Ivanhoe
Page 172 U. S. 275
Avenue, as condemned and appropriated herein" -- the assessments
payable in ten annual installments, if deferred, and the same
collected as prescribed by law, and in the assessing ordinance
thereafter to be passed.
Under that ordinance, application was made by the village to the
Probate Court of Hamilton County for the impaneling of a jury to
assess the compensation to be paid for the property to be taken. A
jury was accordingly impaneled, and it assessed the plaintiff's
compensation at $2,000, declaring that it made the "assessment
irrespective of any benefit to the owner from any improvement
proposed by said corporation."
The assessment was confirmed by the court, the amount assessed
was paid to the owner, and it was ordered that the village have
immediate possession and ownership of the premises for the uses and
purposes specified in the ordinance.
The property condemned is indicated by the following plat:
image:a
Page 172 U. S. 276
After the finding of the jury, the village council passed an
ordinance levying and assessing "on each front foot of the several
lots of land bounding and abutting on Ivanhoe Avenue, from Williams
Avenue to a point 300 feet north," certain sums for each of the
years 1892 to 1901, inclusive,
"to pay the cost and expense of condemning property for the
extension of said Ivanhoe Avenue between the points aforesaid [from
Williams Avenue to a point 300 feet north], together with the
interest on the bonds issued to provide a fund to pay for said
condemnation."
By the same ordinance, provision was made for issuing bonds to
provide for the payment of the cost and expense of the
condemnation, which included the amount found by the jury as
compensation for the property taken, the costs in the condemnation
proceedings, solicitor and expert witness fees, advertising, etc.
-- in all, $2,218.58.
The present suit was brought to obtain a decree restraining the
village from enforcing the assessment in question against the
abutting property of the plaintiff.
It was conceded that the defendant assessed back upon the
plaintiff's 300 feet of land upon either side of the strip taken
(making 600 feet in all of frontage upon the strip condemned) the
above sum of $2,218.58, payable in installments, with interest at
six percent, the first installment being $354.97, and the last or
tenth installment $235.17, lessening the same from year to year in
an amount of about $13 per annum, and the village admitted that the
assessment had been placed upon the tax duplicate, and sent to the
county treasurer for collection,
as a lien and charge against
the abutting property owned by the plaintiff.
But the village alleged that the appropriation proceedings and
consequent assessment were all in strict conformity with the laws
and statutes of the State of Ohio and in pursuance of due process
of law, that the opening and extension of Ivanhoe Avenue
constituted a public improvement for which the abutting property
was liable to assessment under the laws of Ohio, that the counsel
fees, witness fees, and costs included in such total assessment
were a part of the legitimate expenses
Page 172 U. S. 277
of such improvement, and that in any event an expense had been
incurred by the municipal corporation in opening the street "equal
to the full amount of the said assessment, which is a proper charge
against the complainant's abutting property."
It was agreed at the hearing of the present case that the sum
awarded by the verdict of the jury was paid to and received by the
plaintiff, and that it was that sum, together with the costs and
charges, that the village undertook to assess back upon the land
upon either side of said strip of land.
The plaintiff's suit proceeded upon the ground, distinctly
stated, that the assessment in question was in violation of the
Fourteenth Amendment, providing that no state shall deprive any
person of property without due process of law, nor deny to any
person within its jurisdiction the equal protection of the laws, as
well as of the bill of rights of the Constitution of Ohio.
It has been adjudged that the due process of law prescribed by
that amendment requires compensation to be made or secured to the
owner when private property is taken by a state, or under its
authority, for public use.
Chicago, Burlington &c. Railroad
v. Chicago, 166 U. S. 226,
166 U. S. 241;
Long Island Water Supply Co. v. City of Brooklyn,
166 U. S. 685,
166 U. S.
695.
The taking of the plaintiff's land for the street was under the
power of eminent domain -- a power which this Court has said was
the offspring of political necessity, and inseparable from
sovereignty, unless denied to it by the fundamental law.
Searl
v. Lake County School District, 133 U.
S. 553,
133 U. S. 562.
But the assessment of the abutting property for the cost and
expense incurred by the village was an exercise of the power of
taxation. Except for the provision of the Constitution of Ohio
above quoted, the state could have authorized benefits to be
deducted from the actual value of the land taken, without violating
the constitutional injunction that compensation be made for private
property taken for public use, for the benefits received could be
properly regarded as compensation
pro tanto for the
property appropriated to public use. But
Page 172 U. S. 278
does the exclusion of benefits from the estimate of compensation
to be made for the property actually taken for public use authorize
the public to charge upon the abutting property the sum paid for
it, together with the entire costs incurred in the condemnation
proceedings, irrespective of the question whether the property was
benefited by the opening of the street?
Undoubtedly abutting owners may be subjected to special
assessments to meet the expenses of opening public highways in
front of their property, such assessments, according to well
established principles, resting upon the ground that special
burdens may be imposed for special or peculiar benefits accruing
from public improvements.
Mobile County v. Kimball,
102 U. S. 691,
102 U. S.
703-704;
Illinois Central Railroad v. Decatur,
147 U. S. 190,
147 U. S. 202;
Bauman v. Ross, 167 U. S. 548,
167 U. S. 589,
and authorities there cited. And according to the weight of
judicial authority, the legislature has a large discretion in
defining the territory to be deemed specially benefited by a public
improvement and which may be subjected to special assessment to
meet the cost of such improvement. In
Williams v.
Eggleston, 170 U. S. 304,
170 U. S. 311,
where the only question, as this Court stated, was as to the power
of the legislature to cast the burden of a public improvement upon
certain towns which had been judicially determined to be towns
benefited by such improvement, it was said:
"Neither can it be doubted that if the state constitution does
not prohibit, the legislature, speaking generally, may create a new
taxing district, determine what territory shall belong to such
district, and what property shall be considered as benefited by a
proposed improvement."
But the power of the legislature in these matters is not
unlimited. There is a point beyond which the legislative
department, even when exerting the power of taxation, may not go
consistently with the citizen's right of property. As already
indicated, the principle underlying special assessments to meet the
cost of public improvements is that the property upon which they
are imposed is peculiarly benefited, and therefore the owners do
not in fact pay anything in excess of
Page 172 U. S. 279
what they receive by reason of such improvement. But the
guaranties for the protection of private property would be
seriously impaired if it were established as a rule of
constitutional law that the imposition by the legislature upon
particular private property of the entire cost of a public
improvement, irrespective of any peculiar benefits accruing to the
owner from such improvement, could not be questioned by him in the
courts of the country. It is one thing for the legislature to
prescribe it as a
general rule that property abutting on a
street opened by the public shall be deemed to have been specially
benefited by such improvement, and therefore should specially
contribute to the cost incurred by the public. It is quite a
different thing to lay it down as an absolute rule that such
property, whether it is in fact benefited or not by the opening of
the street, may be assessed by the front foot for a fixed sum,
representing the whole cost of the improvement, and without any
right in the property owner to show, when an assessment of that
kind is made, or is about to be made, that the sum so fixed is in
excess of the benefits received.
In our judgment, the exaction from the owner of private property
of the cost of a public improvement in substantial excess of the
special benefits accruing to him is,
to the extent of such
excess, a taking, under the guise of taxation, of private
property for public use without compensation. We say "substantial
excess" because exact equality of taxation is not always
attainable, and for that reason the excess of cost over special
benefits, unless it be of a material character, ought not to be
regarded by a court of equity when its aid is invoked to restrain
the enforcement of a special assessment.
In
Illinois Central Railroad v. Decatur, 147 U.
S. 190,
147 U. S. 202,
where it was held that a provision in the charter of a railroad
company exempting it from taxation did not exempt it from a
municipal assessment imposed upon its land for grading and paving a
street, the decision rested upon the ground that a special
assessment proceeds on the theory that the property charged
therewith derives an increased value from the improvement, "the
enhancement in value being the consideration for the charge."
Page 172 U. S. 280
In Cooley on Taxation (2d ed., c. xx), the author, in
considering the subject of taxation by special assessment and of
estimating benefits conferred upon property by a public
improvement, says that while a general levy of taxes rests upon the
ground that the citizen may be required to make contribution in
that mode in return for the general benefits of government, special
assessments are a peculiar species of taxation, and are made upon
the assumption that
"a portion of the community is to be specially and peculiarly
benefited in the enhancement of the value of property peculiarly
situated as regards a contemplated expenditure of public funds,
and, in addition to the general levy, they demand that special
contributions, in consideration of the special benefit, shall be
made by the persons receiving it. The justice of demanding the
special contribution is supposed to be evident in the fact that the
persons who are to make it, while they are made to bear the cost of
a public work, are at the same time to suffer no pecuniary loss
thereby, their property being increased in value by the expenditure
to an amount at least equal to the sum they are required to
pay."
Again, the author says:
"There can be no justification for any proceeding which charges
the land with an assessment greater than the benefits. It is a
plain case of appropriating private property to public uses without
compensation."
In
Macon v. Patty, 57 Miss. 378, 386, the Supreme Court
of Mississippi said that a special assessment is unlike an ordinary
tax, in that the proceeds of the assessment must be expended in an
improvement from which "a benefit clearly exceptive and plainly
perceived must inure to the property upon which it is imposed."
So, in
In the Matter of Canal Street, 11 Wend. 156,
which related to an assessment to meet the expenses of opening a
street, the court, after observing that the principle that private
property shall not be taken for public use without just
compensation was found in the constitution and laws of the state,
and had its foundation in those elementary principles of equity and
justice which lie at the root of the social compact, said:
"The corporation may see the extent of the
Page 172 U. S. 281
benefit of any improvement before proceedings are commenced, but
the extent of injury to be done to individuals cannot be known to
them until the coming in of the report of the commissioners. They
may then be satisfied that the property which is to be benefited
will not be benefited to the extent of the assessment necessary to
indemnify those whose property is taken from them. What are they to
do? If they proceed, they deprive some persons of their property
unjustly. If the report of the commissioners is correct, the amount
awarded to the owners of property taken cannot be reduced without
injustice to them. If the assessment is confirmed and enforced, the
owners of the adjacent property must pay beyond the enhanced value
of their own property, and all such excess is private property
taken for public use without just compensation."
In
McCormack v. Patchin, 53 Mo. 36, the Supreme Court
of Missouri said:
"The whole theory of local taxation or assessments is that the
improvements for which they are levied afford a remuneration in the
way of benefits. A law which would attempt to make one person, or a
given number of persons, under the guise of local assessments, pay
a general revenue for the public at large would not be an exercise
of the taxing power, but an act of confiscation."
See also Zoeller v. Kellogg, 4 Mo.App. 163.
In
State &c. v. Hoboken, 36 N.J.L. 293, which was
the case of the improvement of a street and a special assessment to
meet the cost, such cost being in excess of the benefits received
by the property owner, it was held that, to the extent of such
excess, private property was taken for public use without
compensation because that received by the landowner was not equal
to that taken from him.
It will not escape observation that if the entire cost incurred
by a municipal corporation in condemning land for the purpose of
opening or extending a street can be assessed back upon the
abutting property without inquiry in any form as to the special
benefits received by the owner, the result will be more injurious
to the owner than if he had been required in the first instance to
open the street at his own cost, without
Page 172 U. S. 282
compensation in respect of the land taken for the street, for by
opening the street at his own cost, he might save at least the
expense attending formal proceedings of condemnation. It cannot be
that any such result is consistent with the principles upon which
rests the power to make special assessments upon property in order
to meet the expense of public improvements in the vicinity of such
property.
The views we have expressed are supported by other adjudged
cases as well as by reason and by the principles which must be
recognized as essential for the protection of private property
against the arbitrary action of government. The importance of the
question before us renders it appropriate to refer to some of those
cases.
In
State v. Newark, 37 N.J.L. 416, 420-423, the
question arose as to the validity of an assessment of the expenses
incurred in repairing the roadbed of a portion of one of the
streets of the City of Newark. The assessment was made in
conformity to a statute that undertook to fix, at the mere will of
the legislature, the ratio of expense to be put upon the owners of
property along the line of the improvement. Chief Justice Beasley,
speaking for the Court of Errors and Appeals, said:
"The doctrine that it is competent for the legislature to direct
the expense of opening, paving, or improving a public street, or at
least some part of such expense, to be put as a special burthen on
the property in the neighborhood of such improvement, cannot at
this day be drawn in question. There is nothing in the constitution
of this state that requires that all property in the state, or in
any particular subdivision of the state, must be embraced in the
operation of every law levying a tax. That the effect of such laws
may not extend beyond certain prescribed limits is perfectly
indisputable. It is upon this principle that taxes raised in
counties, townships, and cities are vindicated. But while it is
thus clear that the burthen of a particular tax may be placed
exclusively on any political district to whose benefit such tax is
to inure, it seems to me it is equally clear that when such burthen
is sought to be imposed on particular lands not in themselves
constituting a political subdivision of the state, we at once
approach the
Page 172 U. S. 283
line which is the boundary between acts of taxation and acts of
confiscation. I think it impossible to assert with the least show
of reason that the legislative right to select the subject of
taxation is not a limited right. For it would seem much more in
accordance with correct theory to maintain that the power of
selection of the property to be taxed cannot be contracted to
narrower bounds than the political district within which it is to
operate than that such power is entirely illimitable. If such
prerogative has no trammel or circumscription, then it follows that
the entire burthen of one of these public improvements can be
placed by the force of the legislative will on the property of a
few enumerated citizens, or even on that of a single citizen. In a
government in which the legislative power is not omnipotent, and in
which it is a fundamental axiom that private property cannot be
taken without just compensation, the existence of an unlimited
right in the lawmaking power to concentrate the burthen of a tax
upon specified property does not exist. If a statute should direct
a certain street in a city to be paved, and the expense of such
paving to be assessed on the houses standing at the four corners of
such street, this would not be an act of taxation, and it is
presumed that no one would assert it to be such. If this cannot be
maintained, then it follows that it is conceded that the
legislative power in question is not completely arbitrary. It has
its limit, and the only inquiry is where that limit is to be
placed."
After referring to a former decision of the same court, in which
it was said that special assessments could be sustained upon the
theory that the party assessed was locally and peculiarly benefited
above the ordinary benefit which as one of the community he
received in all public improvements, the opinion proceeds:
"It follows, then, that these local assessments are justifiable
on the ground above -- that the locality is especially to be
benefited by the outlay of the money to be raised. Unless this is
the case, no reason can be assigned why the tax is not general. An
assessment laid on property along a city street for an improvement
made in another street, in a distant part of the same city, would
be universally condemned
Page 172 U. S. 284
both on moral and legal grounds. And yet there is no difference
between such an extortion and the requisition upon a landowner to
pay for a public improvement over and above the exceptive benefit
received by him. It is true that the power of taxing is one of the
high and indispensable prerogatives of the government, and it can
be only in cases free from all doubt that its exercise can be
declared by the courts to be illegal. But such a case, if it can
ever arise, is certainly presented when a property is specified out
of which a public improvement is to be paid for in excess of the
value specially imparted to it by such improvement. As to such
excess, I cannot distinguish an act exacting its payment from the
exercise of the power of eminent domain. In case of taxation, the
citizen pays his quota of the common burthen. When his land is
sequestered for the public use, he contributes more than such
quota, and this is the distinction between the effect of the
exercise of the taxing power and that of eminent domain. When then,
the overplus beyond benefits from these local improvements is laid
upon a few landowners, such citizens, with respect to such
overplus, are required to defray more than their share of the
public outlay, and the coercive act is not within the proper scope
of the power to tax."
So, in
Bogert v. Elizabeth City, 27 N.J.Eq. 568, 569,
which involved the validity of a provision in the charter of a city
directing the whole cost of special improvements to be put on the
property on the line of the street opposite such improvements, the
assessments to be made in a just and equitable manner by the common
city council, the court said:
"The sum of the expense is ordered to be put on certain
designated property, without regard to the proportion of benefit it
has received from the improvement. The direction is perfectly
clear. The entire burthen is to be borne by the land along the line
of the improvement, and the ratio of distribution among the
respective lots is left to the judgment of the common council. Such
a power, according to legal rules now at rest in this state, cannot
be executed. The whole clause is nugatory and void, and all
proceedings under it are not mere irregularities, but are
nullities. "
Page 172 U. S. 285
In
Hammett v. Philadelphia, 65 Pa.St. 146, 150-153, the
court, speaking by Judge Sharswood, said that it was a point fully
settled and at rest in that state that the legislature has the
constitutional right to confer upon municipal corporations the
power of assessing the costs of local improvements upon the
properties benefited, and that, on the same principle, the validity
of municipal claims assessing on the lots fronting upon streets
their due share of the cost of grading, curbing, paving, building
sewers and culverts, and laying water pipes, in proportion to their
respective fronts, has been repeatedly recognized, and the liens
for such assessments enforced. "These cases," the court said,
"all fall strictly within the rule as originally enunciated --
local taxation for local purposes -- or, as it has been elsewhere
expressed, taxation on the benefits conferred, and
not beyond
the extent of those benefits. . . . If the sovereign breaks
open the strong box of an individual or corporation and takes out
money, or if, not being paid on demand, he seizes and sells the
land or goods of the subject, it looks to me very much like a
direct taking of private property for public use. It certainly
cannot alter the case to call it 'taxation.' Whenever a local
assessment upon an individual is not grounded upon and
measured
by the extent of his particular benefit, it is,
pro
tanto, a taking of his private property for public use without
any provision for compensation."
In
Barnes v. Dyer, 56 Vt. 469, 471, which involved the
validity of a statute relating to the construction and repair of
sidewalks in a city of Vermont under the authority of its common
council, and directing the expense to be assessed on the owners of
property through which, or fronting which, such sidewalks should be
constructed, it was said:
"The act in question made no express allusion to assessment on
account of benefit; neither does it limit the assessment to the
amount of benefit; yet, as we have seen, the right to assess at all
depends solely on benefit, and must be proportioned to, and limited
by, it. An improvement might cost double the benefit to the land
specially benefited."
In
Thomas v. Gain, 35 Mich. 155, 162, Chief Justice
Cooley, speaking for the Supreme Court of Michigan, said:
Page 172 U. S. 286
"It is generally agreed that an assessment levied without regard
to actual or probable benefits is unlawful, as constituting an
attempt to appropriate private property to public uses. This idea
is strongly stated in
Tide-Water Co. v. Coster, 18 N.J.Eq.
(3 C. E. Green) 519, which has often been cited with approval in
other cases. It is admitted that the legislature may prescribe the
rule for the apportionment of benefits, but it is not conceded that
its power in this regard is unlimited. The rule must at least be
one which it is legally possible may be just and equal as between
the parties assessed. If it is not conceivable that the rule
prescribed is one which will apportion the burden justly, or with
such proximate justice as is usually attainable in tax cases, it
must fall to the ground like any other merely arbitrary action
which is supported by no principle."
In the case of
Tide-Water Co. v. Coster, supra, 518,
527-528, referred to by the Supreme Court of Michigan, it was
said:
"Where lands are improved by legislative action on the ground of
public utility, the cost of such improvement, it has frequently
been held, may, to a certain degree, be imposed on the parties who,
in consequence of owning the lands in the vicinity of such
improvement, receive a peculiar advantage. By the operation of such
a system it is not considered that the property of the individual,
or any part of it, is taken from him for the public use, because he
is compensated in the enhanced value of such property. But it is
clear this principle is only applicable when the benefit is
commensurate to the burden,-when that which is received by the
landowner is equal or superior in value to the sum exacted; for, if
the sum exacted be in excess, then,
to that extent, most
incontestably, private property is assumed by the public. Nor, as
to this excess, can it be successfully maintained that such
imposition is legitimate, as an exercise of the power of taxation.
Such an imposition has none of the essential characteristics of a
tax. We are to bear in mind that this projected improvement is to
be regarded as one in which the public has an interest. The owners
of these lands have a special concern in such improvements, so far
as particular lands will be in a peculiar manner benefited.
Page 172 U. S. 287
Beyond this, their situation is like the rest of the community.
The consideration for the excess of the cost of improvement over
the enhancement of the property within the operation of the act is
the public benefit. The expenditure of this portion of the cost of
the work can only be justified on the ground of benefit to the
public. I am aware of no principle that will permit the expense
incurred in conferring such benefit on the public to be laid in the
form of a tax on individuals."
In Dillon's Treatise on Municipal Corporations, there is an
extended discussion of this whole subject. In section 761, he
states the general results of the cases in the several states
concerning special assessments for local improvements. After
stating that a local assessment or tax upon the property benefited
by a local improvement may be authorized by the legislature, he
says:
"Special benefits to the property assessed -- that is, benefits
received by it in addition to those received by the community at
large -- are the true and only just foundation upon which local
assessments can rest, and
to the extent of special
benefits, it is everywhere admitted that the legislature may
authorize local taxes or assessments to be made."
Again, the author says:
"When not restrained by the Constitution of the particular
state, the legislature has a discretion, commensurate with the
broad domain of legislative power, in making provisions for
ascertaining what property is specially benefited, and how the
benefits shall be apportioned. This proposition, as stated, is
nowhere denied. But the adjudged cases do not agree upon the extent
of legislative power."
While recognizing the fact that some courts have asserted that
the authority of the legislature in this regard is quite without
limits, the author observes that
"the decided tendency of the later decisions, including those of
the courts of New Jersey, Michigan, and Pennsylvania, is to hold
that the legislative power is not unlimited, and that these
assessments must be apportioned by some rule capable of producing
reasonable equality, and that provisions of such a nature as to
make it legally impossible that the burden can be apportioned with
proximate equality are arbitrary exactions, and not an exercise of
legislative authority."
He further says:
Page 172 U. S. 288
"Whether it is competent for the legislature to declare that no
part of the expense of a local improvement of a public nature shall
be borne by a general tax, and that the whole of it shall be
assessed upon the abutting property and other property in the
vicinity of the improvement, thus for itself conclusively
determining, not only that such property is specially benefited,
but that it
is thus benefited to the extent of the cost of
the improvement, and then to provide for the apportionment of the
amount by an estimate to be made by designated boards or officers,
or by frontage or superficial area, is a question upon which the
courts are not agreed. Almost all of the earlier cases asserted
that the legislative discretion in the apportionment of public
burdens extended this far, and such legislation is still upheld in
most of the states. But since the period when express provisions
have been made in many of the state constitutions requiring
uniformity and equality of taxation, several courts of great
respectability, either by force of this requirement, or in the
spirit of it, and perceiving that
special benefit actually
received by each parcel of contributing property
was the
only principle upon which such assessments can justly rest,
and that any other rule is unequal, oppressive, and arbitrary, have
denied the unlimited scope of legislative discretion and power and
asserted what must,
upon principle, be regarded as the just and
reasonable doctrine that the cost of a local improvement can
be assessed upon particular property
only to the extent that it
is specially and peculiarly benefited, and, since the excess beyond
that is a benefit to the municipality at large, it must be borne by
the general treasury."
It is said that the judgment below is not in accord with the
decision of the Supreme Court of Ohio in
Cleveland City v.
Wick, 18 Ohio St. 304, 310. But that is a mistake. That case
only decided that the owner whose property was taken for a public
improvement could not have his abutting property exempt from its
due proportion of an assessment made to cover the expense incurred
in making such improvement; that his liability in that regard was
not affected by the fact that he was entitled to receive
compensation for his property actually
Page 172 U. S. 289
taken for the improvement without deduction on account of
benefits to his other property. That the decision covered no other
point is shown by the following extract from the opinion of the
court:
"The mischief which existed under the old constitution was that
the benefits which were common to his neighbors, without charge,
were deducted from the price paid to the owner of land taken. The
evil might well be denominated inequality of benefits and burdens
among adjoining landowners. You paid for the owner's land in
privileges, and left him still liable, equally with his neighbors
whose lands were untaken, to any and all local assessments that
might afterwards be imposed. This was unequal, and therefore deemed
unjust. Experience proved, moreover, that it led to much abuse of
the power of condemnation. A full remedy is to be found for these
evils in the provision in question, without at all making it to
interfere with the power of assessment. Construed thus, it is in
perfect accordance with the leading principle of taxation in the
new constitution -- uniformity and equality of burdens. It simply
guaranties to the owner of land condemned a full price. When that
is paid, he stands on a perfect equality with all other owners of
adjoining lands -- equally liable, as he ought to be, to be taxed
upon his other lands with them. He has the full price of his land
in his pocket, and is an equal participant with them in benefits to
adjoining lands. To throw the whole burden upon the others in such
a case would be to do them the precise injustice which was done to
him under the old constitution. To do so would be to avoid one evil
only to run into another. It would be to avoid the evil of
withholding from him a full and fair price for his land, only to
run into the equal evil of paying him two prices for it, the second
price being at the expense of his neighbors."
If the principles announced by the authorities above cited be
applied to the present case, the result must be an affirmance of
the judgment.
We have seen that, by the Revised Statutes of Ohio relating to
assessments, the Village of Norwood was authorized to place the
cost and expense attending the condemnation of the plaintiff's land
for a public street on the general tax list of the
Page 172 U. S. 290
corporation, section 2263; but, if the village declined to adopt
that course, it was required by section 2264 to assess such cost
and expense
"on the abutting and such adjacent and contiguous or other
benefited lots and lands in the corporation
either in
proportion to the benefits which may result from the improvement
or according to the value of the property assessed,
or by
the front foot of the property bounding and
abutting upon the improvement,"
while, by section 2271, whenever any street or avenue was
opened, extended, straightened, or widened, the special assessment
for the cost and expense, or any part thereof
"shall be assessed only on the lots and lands bounding and
abutting on such part or parts of said street or avenue so
improved, and shall include of such lots and lands only to a fair
average depth of lots in the neighborhood."
It thus appears that the statute authorizes a special assessment
upon the bounding and abutting property by the front foot for the
entire cost and expense of the improvement, without taking special
benefits into account. And that was the method pursued by the
Village of Norwood. The corporation manifestly proceeded upon the
theory that the abutting property could be made to bear the whole
cost of the improvement, whether such property was benefited or not
to the extent of such cost.
It is said that a court of equity ought not to interpose to
prevent the enforcement of the assessment in question, because the
plaintiff did not show nor offer to show by proof that the amount
assessed upon her property was in excess of the special benefits
accruing to it by reason of the opening of the street. This
suggestion implies that if the proof had shown an excess of cost
incurred in opening the street over the special benefits accruing
to the abutting property, a decree might properly have been made
enjoining the assessment to the extent simply that such cost
exceeded the benefits. We do not concur in this view. As the
pleadings show, the village proceeded upon the theory, justified by
the words of the statute, that the entire cost incurred in opening
the street, including the value of the property appropriated,
could, when the assessment was by the front foot, be put upon
the
Page 172 U. S. 291
abutting property, irrespective of special benefits. The
assessment was by the front foot, and for a specific sum
representing such cost, and that sum could not have been reduced
under the ordinance of the village even if proof had been made that
the costs and expenses assessed upon the abutting property exceeded
the special benefits. The assessment was, in itself, an illegal one
because it rested upon a basis that excluded any consideration of
benefits. A decree enjoining the whole assessment was therefore the
only appropriate one.
Nor is the present case controlled by the general principle,
announced in many cases, that a court of equity will not relieve a
party against an assessment for taxation unless he tenders or
offers to pay what he admits or what is seen to be due. That rule
is thus stated in
National Bank v. Kimball, 103
U. S. 733:
"We have announced more than once that it is the established
rule of this Court that no one can be permitted to go into a court
of equity to enjoin the collection of a tax until he has shown
himself entitled to the aid of the court by paying so much of the
tax assessed against him as it can be
plainly seen he ought to
pay; that he shall not be permitted, because his tax is in
excess of what is just and lawful, to screen himself from paying
any tax at all until the precise amount which he ought to pay is
ascertained by a court of equity, and that the owner of property
liable to taxation is bound to contribute his lawful share to the
current expenses of government, and cannot throw that share on
others while he engages in an expensive and protracted litigation
to ascertain that the amount which he is assessed is or is not a
few dollars more than it ought to be, but that, before he asks this
exact and scrupulous justice, he must first do equity by paying so
much as it is
clear he ought to pay, and contest and delay
only the remainder.
State Railroad Tax Cases, 92 U. S.
575."
The same principle was announced in
Northern Pacific
Railroad v. Clark, 153 U. S. 252,
153 U. S.
272.
In
Cummings v. National Bank, 101 U.
S. 153,
101 U. S. 157,
which was the case of an injunction against the enforcement in Ohio
of an illegal assessment upon the shares of stock of a national
bank, this Court, after observing that the bank held a trust
Page 172 U. S. 292
relation that authorized a court of equity to see that it was
protected in the exercise of the duties appertaining to it,
said:
"But the statute of the state expressly declares that suits may
be brought to enjoin the illegal levy of taxes and assessments, or
the collection of them. § 5858 of the Revised Statutes of Ohio,
1880; vol. liii, Laws of Ohio 178, §§ 1, 2. And though we have
repeatedly decided in this Court that the statute of a state cannot
control the mode of procedure in equity cases in federal courts nor
deprive them of their separate equity jurisdiction, we have also
held that where a statute of a state created a new right or
provided a new remedy, the federal courts will enforce that right
either on the common law or equity side of the docket as the nature
of the new right or new remedy requires.
Van Norden v.
Morton, 99 U. S. 378. Here there can be
no doubt that the remedy by injunction against an illegal tax,
expressly granted by the statute, is to be enforced, and can only
be appropriately enforced, on the equity side of the court."
Again:
"Independently of this statute, however, we are of opinion that,
when a
rule or system of valuation is adopted by those
whose duty it is to make the assessment which is designed to
operate unequally and to violate a fundamental principle of the
Constitution, and when this rule is applied not solely to one
individual, but to a large class of individuals or corporations,
that equity may properly interfere to restrain the operation of
this unconstitutional exercise of power."
These observations are pertinent to the question of the power
and duty of a court of equity to interfere for the plaintiff's
relief. The present case is one of illegal assessment under a
rule or system which, as we have stated, violated the
Constitution in that the entire cost of the street improvement was
imposed upon the abutting property, by the front foot, without any
reference to special benefits.
Mr. High, in his treatise on Injunctions, says that no principle
is more firmly established than that requiring a taxpayer who seeks
the aid of an injunction against the enforcement or collection of a
tax first to pay or tender the amount which is conceded to be
legally and properly due, or which is
Page 172 U. S. 293
plainly seen to be due. But he also says:
"It is held, however, that the general rule requiring payment or
tender of the amount actually due as a condition to equitable
relief against the illegal portion of the tax has no application to
a case where the entire tax fails by reason of an illegal
assessment. And in such case, an injunction is proper without
payment or tender of any portion of the tax, since it is impossible
for the court to determine what portion is actually due, there
being no valid or legal tax assessed."
The present case is not one in which (as in most of the cases
brought to enjoin the collection of taxes or the enforcement of
special assessments) it can be plainly or clearly seen from the
showing made by the pleadings that a particular amount, if no more,
is due from the plaintiff, and which amount should be paid or
tendered before equity would interfere. It is rather a case in
which the entire assessment is illegal. In such a case, it was not
necessary to tender, as a condition of relief being granted to the
plaintiff, any sum, as representing what she supposed or might
guess or was willing to concede was the excess of cost over any
benefits accruing to the property. She was entitled, without making
such a tender, to ask a court of equity to enjoin the enforcement
of a rule of assessment that infringed upon her constitutional
rights. In our judgment, the circuit court properly enjoined the
enforcement of the assessment as it was, without going into proofs
as to the excess of the cost of opening the street over special
benefits.
It should be observed that the decree did not relieve the
abutting property from liability for such amount as could be
properly assessed against it. Its legal effect, as we now adjudge,
was only to prevent the enforcement of the particular assessment in
question. It left the village, in its discretion, to take such
steps as were within its power to take, either under existing
statutes or under any authority that might thereafter be conferred
upon it, to make a new assessment upon the plaintiff's abutting
property for so much of the expense of opening the street as was
found, upon due and proper inquiry, to be equal to the special
benefits accruing to
Page 172 U. S. 294
the property. By the decree rendered, the court avoided the
performance of functions appertaining to an assessing tribunal or
body and left the subject under the control of the local
authorities designated by the state. Such a decree was more
appropriate than one enjoining the assessment to such extent as, in
the judgment of the circuit court, the cost of the improvement
exceeded the special benefits. The decree does not prevent the
village, if it has or obtains power to that end, from proceeding to
make an assessment in conformity with the view indicated in this
opinion -- namely that, while abutting property may be specially
assessed on account of the expense attending the opening of a
public street in front of it, such assessment must be measured or
limited by the special benefits accruing to it (that is, by
benefits that are not shared by the general public), and that
taxation of the abutting property for any substantial excess of
such expense over special benefits will, to the extent of such
excess, be a taking of private property for public use without
compensation.
It has been suggested that what has been said by us is not
consistent with our decision in
Parsons v. District of
Columbia, 170 U. S. 45,
170 U. S. 52,
170 U. S. 56.
But this is an error. That was the case of a special assessment
against land in the District of Columbia belonging to the
plaintiff, Parsons, as a water main tax, or assessment for laying a
water main in the street on which the land abutted. The work was
done under the authority of an act of Congress establishing a
comprehensive system for the District, and regulating the
supply of water, and the erection and maintenance of reservoirs and
water mains. This Court decided that
"it was competent for Congress to create a general system to
store water and furnish it to the inhabitants of the District, and
to prescribe the amount of the assessment, and the method of its
collection, and that the plaintiff in error cannot be heard to
complain that he was not notified of the creation of such a system,
or consulted as to the probable cost thereof. He is presumed to
have notice of these general laws regulating such matters. The
power conferred upon the commissioners was not to make assessments
upon abutting properties, nor to give notice to the property
Page 172 U. S. 295
owners of such assessments, but to determine the question of the
propriety and necessity of laying water mains and pipes, and of
erecting fire plugs and hydrants, and their
bona fide
exercise of such power cannot be reviewed by the courts."
One of the points in the case was presented by the contention
that "the assessment exceeded the actual cost of the work." But
that objection, the Court said, overlooked
"the fact that the laying of this main was part of the
water
system, and that the assessment prescribed was not merely to
put down the pipes,
but to raise a fund to keep the system in
efficient repair. The moneys raised beyond the expense of
laying the pipe are not paid into the general treasury of the
District, but are set aside to maintain and repair the system, and
there is no such
disproportion between the amount assessed and
the actual cost as to show any abuse of legislative power. A
similar objection was disposed of by the Supreme Judicial Court of
Massachusetts in the case of
Leominster v. Conant, 139
Mass. 384. In that case, the validity of an assessment for a sewer
was denied because the amount of the assessment exceeded the cost
of the sewer, but the court held that the legislation in question
had created a sewer system, and that it was lawful to make
assessments by a uniform rate which had been determined upon for
the sewerage territory."
If the cost of laying the water mains in question in that case
had exceeded the value of the property specially assessed, or had
been in excess of any benefits received by that property, a
different question would have been presented.
Nor do we think that the present case is necessarily controlled
by the decision in
Spencer v. Merchant, 125 U.
S. 345,
125 U. S. 351,
125 U. S. 357.
That case came here upon writ of error to the highest court of New
York. It related to an assessment, by legislative enactment, upon
certain isolated parcels of land, of a named aggregate amount,
which remained unpaid, of the cost of a street improvement. In
reference to the statute, the validity of which was questioned, the
Court said:
"By the statute of 1881, a sum equal to so much of the original
assessment as remained unpaid, adding a proportional part of the
expenses of making that assessment, and interest since, was
Page 172 U. S. 296
ordered by the legislature to be levied and equitably
apportioned by the supervisors of the county upon and among these
lots, after public notice to all parties interested to appear and
be heard upon the question of such apportionment, and that sum was
levied and assessed accordingly upon these lots, one of which was
owned by the plaintiff. The question submitted to the supreme court
of the state was whether this assessment on the plaintiff's lot was
valid. He contended that the statute of 1881 was unconstitutional
and void because it was an attempt by the legislature to validate a
void assessment without giving the owners of the lands assessed an
opportunity to be heard upon the whole amount of the
assessment."
Again:
"The statute of 1881 afforded to the owners notice and hearing
upon the question of the equitable apportionment among them of the
sum directed to be levied upon all of them, and thus enabled them
to contest the constitutionality of the statute, and that was all
the notice and hearing to which they were entitled."
The point raised in that case -- the only point in judgment --
was one relating to proper notice to the owners of the property
assessed, in order that they might be heard upon the question of
the equitable apportionment of the sum directed to be levied upon
all of them. This appears from both the opinion and the dissenting
opinion in that case.
We have considered the question presented for our determination
with reference only to the provisions of the national Constitution.
But we are also of opinion that under any view of that question
different from the one taken in this opinion, the requirement of
the Constitution of Ohio that compensation be made for private
property taken for public use, and that such compensation must be
assessed "without deduction for benefits to any property of the
owner," would be of little practical value if, upon the opening of
a public street through private property, the abutting property of
the owner, whose land was taken for the street, can, under
legislative authority, be assessed not only for such amount as will
be equal to the benefits received, but for such additional amount
as will meet the excess of expense over benefits.
Page 172 U. S. 297
The judgment of the circuit court must be affirmed upon the
ground that the assessment against the plaintiff's abutting
property was under a rule which excluded any inquiry as to special
benefits, and the necessary operation of which was, to the extent
of the excess of the cost of opening the street in question over
any special benefits accruing to the abutting property therefrom,
to take private property for public use without compensation, and
it is so ordered.
MR. JUSTICE BREWER, dissenting.
I dissent from the opinion and judgment of the Court in this
case, and for these reasons:
1. The taking of land for a highway or other public uses is a
public improvement, the cost of which, under the Constitution of
Ohio, may be charged against the property benefited.
City of
Cleveland v. Wick, 18 Ohio St. 304.
2. Equally true is this under the Constitution of the United
States.
Shoemaker v. United States, 147 U.
S. 282,
147 U. S. 302;
Bauman v. Ross, 167 U. S. 548.
3. The cost of this improvement was settled in judicial
proceedings to which the defendant in error was a party, and,
having received the amount of the award, she is estopped to deny
that the cost was properly ascertained.
4. A public improvement having been made, it is beyond question,
a legislative function (and a common council duly authorized, as in
this case, has legislative powers) to determine the area benefited
by such improvements, and the legislative determination is
conclusive.
Spencer v. Merchant, 100 N.Y. 585, in which
the court said:
"The act of 1881 determines absolutely and conclusively the
amount of the tax to be raised and the property to be assessed and
upon which it is to be apportioned. Each of these things was within
the power of the legislature, whose action cannot be reviewed in
the courts upon the ground that it acted unjustly or without
appropriate and adequate reasons. . . . By the act of 1881, the
legislature imposes the unpaid portion of the cost and expense,
with the interest thereon, upon that portion of the property
benefited which has thus far borne
Page 172 U. S. 298
none of the burden. In so doing, it necessarily determines two
things --
viz., the amount to be realized and the property
specially benefited by the expenditure of that amount. The lands
might have been benefited by the improvement, and so the
legislative determination that they were, and to what amount or
proportion of the cost, even if it may have been mistakenly unjust,
is not open to our review. The question of special benefit, and the
property to which it extends, is of necessity a question of fact,
and, when the legislature determines it in a case within its
general power, its decision must, of course, be final."
Same Case, 125 U. S. 345,
125 U. S. 355,
in which the judgment of the Court of Appeals of the State of New
York was affirmed, and in which this Court said:
"The legislature, in the exercise of its power of taxation, has
the right to direct the whole or a part of the expense of a public
improvement, such as the laying out, grading, or repairing of a
street, to be assessed upon the owners of lands benefited thereby,
and the determination of the territorial district which should be
taxed for a local improvement is within the province of legislative
discretion.
Willard v. Presbury, 14
Wall. 676;
Davidson v. New Orleans, 96 U. S. 97;
Mobile County v. Kimball, 102 U. S.
691,
102 U. S. 703-704;
Hagar
v. Reclamation District, 111 U. S. 701."
Williams v. Eggleston, 170 U.
S. 304,
170 U. S. 311,
in which this Court declared:
"Neither can it be doubted that if the state constitution does
not prohibit, the legislature, speaking generally, may create a new
taxing district, determine what territory shall belong to such
district, and what property shall be considered as benefited by a
proposed improvement."
Parsons v. District of Columbia, 170 U. S.
45, in which this Court sustained an act of Congress in
respect to the District of Columbia not only determining the area
benefited by a public improvement, to-wit, the ground fronting on
the street in which the improvement was made, but also assessing
the cost of such improvement at a specified rate, to-wit, $1.25 per
front foot, on such area.
In this case, we quoted approvingly from Dillon on Municipal
Page 172 U. S. 299
Corporations, 4th edition, volume 2, section 752, in reference
to this matter of assessment:
"Whether the expense of making such improvements shall be paid
out of the general treasury or be assessed upon the abutting
property or other property specially benefited, and, if in the
latter mode, whether the assessment shall be upon all property
found to be benefited, or alone upon the abutters, according to
frontage or according to the area of their lots, is, according to
the present weight of authority, considered to be a question of
legislative expediency."
In the case at bar, the question of apportionment is not
important, because the party charged owned all of the land within
the area described -- all of the land abutting upon the
improvement. The rule would be the same if one hundred different
lots, belonging to as many different parties, faced on the new
street.
The legislative act charging the entire cost of an improvement
upon certain described property is a legislative determination that
the property described constitutes the area benefited, and also
that it is benefited to the extent of such cost. It is unnecessary
to inquire how far courts might be justified in interfering in a
case in which it appeared that the legislature had attempted to
cast the burden of a public improvement on property remote
therefrom, and obviously in no way benefited thereby, for here, the
property charged with the burden of the improvement is that
abutting upon such improvement -- the property
prima facie
benefited thereby -- and the authorities which I have cited declare
that it is within the legislative power to determine the area of
the property benefited and the extent to which it is benefited. It
seems to me strange to suggest that an act of the legislature or an
ordinance of a city casting, for instance, the cost of a sewer or
sidewalk in a street upon all the abutting property, is invalid
unless it provides for a judicial inquiry whether such abutting
property is in fact benefited, and to the full cost of the
improvement, or whether other property might not also be to some
degree benefited, and therefore chargeable with part of the
cost.
Page 172 U. S. 300
Again, it is a maxim in equity that he who seeks equity must do
equity, and, as applied to proceedings to restrain the collection
of taxes, that the party invoking the aid of a court of equity must
allege and prove payment, or an offer to pay such portion of the
taxes or assessment as is properly chargeable upon the property.
This proposition has been iterated and reiterated in many cases. In
State Railroad Tax Cases, 92 U. S.
575,
92 U. S. 617,
it was laid down "as a rule to govern the courts of the United
States in their action in such cases." Further, the mere fact that
tax proceedings are illegal has never been held sufficient to
justify relief in equity. These propositions have been uniformly
and consistently followed.
See, among late cases,
Northern Pacific Railroad v. Clark, 153 U.
S. 252,
153 U. S. 272.
There is nothing in
Cummings v. National Bank,
101 U. S. 153, in
conflict with the foregoing propositions. In that case, it appeared
that the local assessors of Lucas County, in which the bank was
situated, agreed upon a rule of assessment by which money or
invested capital was assessed at six-tenths of its value, while the
shares of national banks were assessed at their full cash value. It
was held that an unequal rule of assessment having been adopted by
the assessors, and that rule "applied not solely to one individual,
but to a large class of individuals or corporations," equity might
properly interfere. But in that case, the bank had paid to the
county treasurer the tax which it ought to have paid, as shown by
the closing words of the opinion of the Court:
"The complainant having paid to defendant, or into the circuit
court for his use, the tax which was its true share of the public
burden, the decree of the circuit court enjoining the collection of
the remainder is affirmed."
If that creates an exception to the general equity rules in
respect to tax proceedings, I am unable to perceive it.
Here, the plaintiff does not allege that her property was not
benefited by the improvement, and to the amount of the full cost
thereof; does not allege any payment or offer to pay the amount
properly to be charged upon it for the benefits received, or even
express a willingness to pay what the courts shall determine ought
to be paid. On the contrary,
Page 172 U. S. 301
so far as the record discloses either by the bill or her
testimony, her property may have been enhanced in value ten times
the cost of the condemnation. Neither is it charged that any other
property was benefited in the slightest degree. It is well to quote
all that is said in the bill in this respect:
"Your complainant complains of the defendant corporation that
the said corporation, through its officers, its council, clerk, and
mayor, undertook and has undertaken to assess back upon this
plaintiff's 300 feet upon either side of the said strip so taken,
not only the said two thousand dollars, the amount adjudged to this
plaintiff as the value of her property so taken, but also counsel
fees, expenses of the suit, expenses and fees of expert witnesses,
and other costs, fees, and expenses to this complainant unknown,
and has proceeded to assess for opening and extending the said
Ivanhoe Street or Avenue for the 300 feet upon each side upon her
premises, making 600 feet in all of frontage upon the said strip so
condemned by the defendant corporation, the sum of $2,218.58,
payable in installments, with interest at six percent; the first
installment being $354.97, and the last or tenth installment
$235.17, lessening the same from year to year in an amount of about
$13 per annum."
"That is to say, the said defendant corporation has undertaken
to take 300 by 50 feet of this complainant's property, and, fixing
the valuation upon it by proceedings at law, now undertakes to
asses upon the complainant's adjacent property 300 feet upon each
side, the said $2,000, the value of the same as adjudged by the
court in the said condemnation proceedings, with all of the costs
incidental thereto, including counsel and witness fees, so that, in
effect, the property of this complainant has been taken and is
sought to be taken by the defendant corporation for the uses of
itself and the general public without any compensation in fact to
the complainant therefor, but at an actual expense and outlay in
addition -- that is to say, the corporation purposes by assessment
to make this complainant not only pay for her own property taken
for the benefit of the defendant, but also to pay the costs of so
taking it without compensation. "
Page 172 U. S. 302
"Wherefore she invokes her remedy given her by statute by
injunction. She avers that the said seizure and taking of her said
property, and the pretended condemnation of the same, and
assessment of the same, with added costs, back upon her own
property for the benefit of the defendant corporation and the
general public, is a seizure of her property without compensation
-- not only that, but at costs to her, besides, in that the
defendants have undertaken to make her pay for the taking of her
property without a compensation, in addition to the value of the
property, and that she is without remedy and powerless unless she
may have and invoke the equitable interference, as the statute
authorizes her, of this honorable court."
The testimony is equally silent as to the matter of damages and
benefits. There is not only no averment, but not even a suggestion,
that any other property than that abutting on the proposed
improvement and belonging to plaintiff is in the slightest degree
benefited thereby. Nor is there an averment or a suggestion that
her property, thus improved by the opening of a street, has not
been raised in value far above the cost of improvement. So that a
legislative act charging the cost of an improvement in laying out a
street (and the same rule obtains if it was the grading,
macadamizing, or paying the street) upon the property abutting
thereon is adjudged, not only not conclusive that such abutting
property is benefited to the full cost thereof, but further that it
is not even
prima facie evidence thereof, and that, before
such an assessment can be sustained, it must be shown not simply
that the legislative body has fixed the area of the taxing
district, but also that by suitable judicial inquiry it has been
established that such taxing district is benefited to the full
amount of the cost of the improvement, and also that no other
property is likewise benefited. The suggestion that such an
assessment be declared void because the rule of assessment is
erroneous implies that it is
prima facie erroneous to cast
upon property abutting upon an improvement the cost thereof; that a
legislative act casting upon such abutting property the full cost
of an improvement is
prima facie void;
Page 172 U. S. 303
that, being
prima facie void, the owner of any property
so abutting on the improvement may obtain a decree of a court of
equity cancelling
in toto the assessment, without denying
that his property is benefited by the improvement, or paying, or
offering to pay, or expressing a willingness to pay, any sum which
may be a legitimate charge upon the property for the value of the
benefit to it by such improvement.
In this case, no tender was made of any sum, no offer to pay the
amount properly chargeable for benefits, there was no allegation or
testimony that the legislative judgment as to the area benefited,
or the amount of the benefit, was incorrect, or that property was
also benefited, and the opinion goes to the extent of holding that
the legislative determination is not only not conclusive, but also
is not even
prima facie sufficient, and that in all cases
there must be a judicial inquiry as to the area in fact benefited.
We have often held the contrary, and, I think, should adhere to
those oft-repeated rulings.
MR. JUSTICE GRAY and MR. JUSTICE SHIRAS also dissent.