premises for the uses and purposes specified | ing the same from year to year in an amount in the ordinance.

The property condemned is indicated by the following plat:

of about $13 per annum; and the village admitted that the assessment had been placed upon the tax duplicate, and sent to the coun

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[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 Ivenhoe 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 Ivenhoe 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, solic itor 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 instalments, with interest at six per cent, the first instalment being $354.97 and the last or tenth instalment $235.17, lessen

ty treasurer for collection, as a lien and charge against the abutting property owned by the plaintiff.

But the village alleged that the appropri ation proceedings and consequent assessment were all in strict conformity with the law and statutes of the state of Ohio and in pur suance of due process of law; that the opening and extension of Ivenhoe 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 of such improvement; and that at[277] 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

erty shall be considered as benefited by a pr
posed improvement."

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 & Q. R. R. Co. v. Chicago, 166 U. S. 226, 241 [41: 979, 986]; Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685, 695 [41: 1165, 1168].

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 ownThe taking of the plaintiff's land for the ers do not, in fact, pay anything in excess of street was under the power of eminent domain *what they receive by reason of such improve-[279) -a power which this court has said was the ment. But the guaranties for the protection offspring of political necessity, and insep- of private property would be seriously imarable from sovereignty unless denied to it paired, if it were established as a rule of by the fundamental law. Searl v. Lake constitutional law, that the imposition by County School District No. 2, 133 U. S. 553, the legislature upon particular private prop562 [33: 740,746]. But the assessment of erty of the entire cost of a public improvethe abutting property for the cost and ex-ment, irrespective of any peculiar benefits pense incurred by the village was an exer- accruing to the owner from such improvecise of the power of taxation. Except for ment, could not be questioned by him in the the provision of the Constitution of Ohio courts of the country. It is one thing for above quoted, the state could have author- the legislature to prescribe it as a general ized benefits to be deducted from the actual rule that property abutting on a street value of the land taken, without violating opened by the public shall be deemed to have the constitutional injunction that compen- been specially benefited by such improvement, sation be made for private property taken for and therefore should specially contribute to public use; for the benefits received could the cost incurred by the public. It is quite be properly regarded as compensation pro a different thing to lay it down as an absotanto for the property appropriated to public lute rule that such property, whether it is [278]use. But *does the exclusion of benefits from in fact benefited or not by the opening of the estimate of compensation to be made for the street, may be assessed by the front foot the property actually taken for public use au- for a fixed sum representing the whole cost thorize the public to charge upon the abut- of the improvement, and without any right ting property the sum paid for it, together in the property owner to show, when an aswith the entire costs incurred in the condem-sessment of that kind is made, or is about to nation proceedings, irrespective of the ques-be made, that the sum so fixed is in excess of tion whether the property was benefited by the benefits received. the opening of the street?

within its jurisdiction the equal protection of the laws, as well as of the bill of rights of the Constitution of Ohio.

In our judgment the exaction from the owner of private property of the cost of a ex-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.

Undoubtedly abutting owners may be subjected to special assessments to meet the penses 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, 703, 704 [26: 238, 242]; Illinois Central Railroad Co. v. Decatur, 147 U. S. 190, 202 [37: 132, 136]; Bauman v. Ross, 167 U. S. 548, 589 [42: 270, 288], 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 improvements. In Williams v. Eggleston, 170 U. S. 304, 311 [42: 1047, 1050], 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 ben-value being the consideration for the charge." efited 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 prop

In Illinois Central Railroad Co. v. Decatur, 147 U.S. 190,202 [37: 132, 136],—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

*In Cooley on Taxation (2d ed. chap. 20) [280) the author, in considering the subject of taxation by special assessment, and of estimat ing benefits conferred upon property by a public improvement, says that while a general levy of taxes rests upon the ground that

the citizens may be required to make contri- | which would attempt to make one person, or
bution in that mode in return for the general a given number of persons, under the guise
benefits of government, special assessments of local assessments, pay a general revenue
are a peculiar species of taxation, and are for the public at large, would not be
made upon the assumption that "a portion an exercise of the taxing power, but an act
of the community is to be specially and of confiscation." See also Zoeller v. Kel-
peculiarly benefited, in the enhancement of logg, 4 Mo. App. 163.
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 contribu-
tions, in consideration of the special benefit,
shall be made by the persons receiving it.
The justice of demanding the special contri-
bution 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 pe-
cuniary 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 pro-
ceeding which charges the land with an as-
sessment greater than the benefits; it is a
plain case of appropriating private property
to public uses without compensation.'

In State, Hoboken Land & Imp. Co., 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 compensa tion, 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 compensation[282] 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.

In Macon v. Patty, 57 Miss. 378, 386 [34 Am. Rep. 451], 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."

The views we have expressed are supported by other adjudged cases, as well as by reason and by the principles which must be recog nized 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.

So, 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 cor[281]poration may see the extent of the *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 assessinent 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 prop erty 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 cess is private property taken for public use without just compensation."

In McCormack v. Patchin, 53 Mo. 36 [14 Am. Rep. 440], 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

In State, Agens, v. Mayor, etc., of 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 burden on the property in the neighborhood of such improvement, cannot, at this day, be drawn in question. There is nothing in the Constiex-tution 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

ment. 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 burden; 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."

that the burden of a particular tax may be placed on any political district to whose benefit such tax is to inure, it seems to me it is equally clear that, when such burden is sought to be imposed on particular lands, not in themselves constituting a political subdivision of the state, we at once approach [283]the *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 So, in Bogert v. Elizabeth, 27 N. J. Eq. to operate, than that such power is entirely 568, 569, which involved the validity of a illimitable. If such prerogative has no tram- provision in the charter of a city directing mel or circumscription, then it follows that the whole cost of special improvements to be the entire burden of one of these public im- put on the property on the line of the street provements can be placed, by the force of the opposite such improvements, the assessments legislative will, on the property of a few to be made in a just and equitable manner enumerated citizens, or even on that of a by the common city council, the court said: single citizen. In a government in which the "The sum of the expense is ordered to be put legislative power is not omnipotent, and in on certain designated property, without rewhich it is a fundamental axiom that private gard to the proportion of benefit it has reproperty cannot be taken without just com-ceived from the improvement. The direction pensation, the existence of an unlimited right is perfectly clear; the entire burden is to be in the lawmaking power to concentrate the borne by the land along the line of the imburden of a tax upon specified property, does provement, and the ratio of distribution not exist. If a statute should direct a cer- among the respective lots is left to the judgtain street in a city to be paved, and the ex- ment of the common council. Such a power, pense of such paving to be assessed at the according to legal rules now at rest in this houses standing on the four corners of such state, cannot be executed. The whole clause street, this would not be an act of taxation, is nugatory and void, and all proceedings unand it is presumed that no one would assert der it are not mere irregularities, but are it to be such. If this cannot be maintained, nullities." then it follows that it is conceded that the *In Hammett v. Philadelphia, 65 Pa. 146,[285] legislative power in question is not complete-150-153 [3 Am. Rep. 615], the court, speakly arbitrary. It has its limit; and the only ing by Judge Sharswood, said that it was a inquiry is, where that limit is to be placed." point fully settled and at rest in that state, After referring to a former decision of the that the legislature has the constitutional same court, in which it was said that special right to confer upon municipal corporations assessments could be sustained upon the theo- the power of assessing the costs of local imry that the party assessed was locally and pe-provements upon the properties benefited, culiarly benefited above the ordinary benefit and that on the same principle the validity which as one of the community he received in of municipal claims assessing on the lots all public improvements, the opinion pro- fronting upon streets their due share of the ceeds: "It follows, then, that these local as- cost of grading, curbing, paving, building sessments are justifiable on the ground above, sewers and culverts, and laying water pipes, that the locality is especially to be benefited in proportion to their respective fronts, has by the outlay of the money to be raised. Un- been repeatedly recognized, and the liens for less this is the case no reason can be assigned such assessments enforced. "These cases," why the tax is not general. An assessment the court said, "all fall strictly within the laid on property along a city street for an rule as originally enunciated—local taxation improvement made in another street, in a dis- for local purposes-or, as it has been elsetant part of the same city, would be universal- where expressed, taxation on the benefits con[284]ly condemned, *both on moral and legal ferred, and not beyond the extent of those grounds. And yet there is no difference be- benefits. If the sovereign breaks open tween such an extortion and the requisition the strong box of an individual or corporaupon a landowner to pay for a public im- tion and takes out money, or, if not being provement over and above the exceptive bene- paid on demand he seizes and sells the lands fit received by him. It is true that the power or goods of the subject, it looks to me very of taxing is one of the high and indispensa- much like a direct taking of private property ble prerogatives of the government, and it for public use. It certainly cannot alter the can be only in cases free from all doubt that case to call it taxation. Whenever a local asits exercise can be declared by the courts to sessment upon an individual is not grounded be illegal. But such a case, if it can ever upon and measured by, the extent of his pararise, is certainly presented when a property ticular benefit, it is, pro tanto, a taking of his is specified, out of which a public improve-private property for public use without any ment is to be paid for in excess of the value provision for compensation. specially imparted to it by such improve172 U. S. U. S.. BOOK 43.




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 benefic, and must be proportioned to and limited by it. An improvement might cost double the benefit to the land specially benefited."

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 pub-
lic. 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 Thomas v. Gain, 35 Mich. 155, 162 [24 Am. Rep. 535], Chief Justice Cooley, speaking for the supreme court of Michigan, said: [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 The Tide-Water Co. v. Coster, 18 N.J. Eq. 519 [90 Am. Dec. 634], 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, must fall to the ground, like any other merely arbitrary action which is supported by no principle."

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, is 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 property is specially benefited and how the making provisions for ascertaining what 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 is quite without limits, the author observes authority of the legislature in this regard cisions, including those of the courts of New that "the decided tendency of the later deJersey, Michigan, and Pennsylvania, is to hold that the legislative power is not unlim


In the case of The Tide-Water Co. v. Coster, 18 N. J. Eq. 527-8 [90 Am. Dec. 634], 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 de-ited, and that these assessments must be apgree, be imposed on the parties who, in con- portioned by some rule capable of producing sequence of owning the lands in the vicinity reasonable equality, and that provisions of of such improvement, receive a peculiar ad- such a nature as to make it legally imposvantage. By the operation of such a system sible that the burden can be apportioned it is not considered that the property of the with proximate equality are arbitrary exindividual or any part of it is taken from actions and not an exercise of legislative auhim for the public use, because he is com- thority." He further says: "Whether it is [288] pensated in the enhanced value of such prop- competent for the legislature to declare that erty. But it is clear this principle is only no part of the expense of a local improveapplicable when the benefit is commensurate ment of a public nature shall be borne by a to the burden-when that which is received general tax, and that the whole of it shall be by the landowner is equal or superior in value assessed upon the abutting property and othto the sum exacted; for if the sum exacted er property in the vicinity of the improvebe in excess, then to that extent, most incon-ment, thus for itself conclusively determintestably, private property is assumed by the ing, not only that such property is specially public. Nor, as to this excess, can it be suc- benefited, but that it is thus benefited to the cessfully maintained that such imposition is extent of the cost of the improvement, and legitimate, as an exercise of the power of taxa- then to provide for the apportionment of the tion. Such an imposition has none of the es- amount by an estimate to be made by desigsential characteristics of a tax. We are tonated boards or officers, or by frontage or bear in mind that this projected improvement superficial area, is a question upon which the is to be regarded as one in which the public courts are not agreed. Almost all of the has an interest. The owners of these lands earlier cases asserted that the legislative dishave a special concern in such improvements cretion in the apportionment of public burso far as particular lands will be in a pecul- dens extended this far, and such legislation [287]iar manner benefited. *Beyond this their situ- is still upheld in most of the states. But ation is like the rest of the community. The since the period when express provisions

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