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 In State, Hoboken Land & Imp. Co., v.
as regards a contemplated expenditure of Hoboken, 36 N. J. L. 293, which was the case
public funds; and, in addition to the general of the improvement of a street and a special
levy, they demand that special contribu-assessment to meet the cost,-such cost be-
tions, in consideration of the special benefit, ing in excess of the benefits received by the
shall be made by the persons receiving it. property owner,--it was held that to the
The justice of demanding the special contri- extent of such excess private property was
bution is supposed to be evident in the fact taken for public use without compensa
that the persons who are to make it, while tion, because that received by the landowner
they are made to bear the cost of a public was not equal to that taken from him.
work, are at the same time to suffer no pe-
It will not escape observation that if the
cuniary loss thereby; their property being entire cost incurred by a municipal corpora-
increased in value by the expenditure to an tion in condemning land for the purpose of
amount at least equal to the sum they are opening or extending a street can be assessed
required to pay." Again, the author says: back upon the abutting property, without in-
"There can be no justification for any pro- quiry in any form as to the special benefits
ceeding which charges the land with an as-received by the owner, the result will be more
sessment greater than the benefits; it is a injurious to the owner than if he had been
plain case of appropriating private property required, in the first instance, to open the
to public uses without compensation."
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 can-
not 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 improve-
ments 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."

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 asBessinent 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 excess 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

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.

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 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

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 sequesthan 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 sub-tered for the public use he contributes more division 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 judg tain 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 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 universal[284]ly condemned, *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 improve172 U. S. U. S.. BOOK 43.


*In Hammett v. Philadelphia, 65 Pa. 146,[285] 150-153 [3 Am. Rep. 615], 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.

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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 lands 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 449

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 as-
sess at all depends solely on benefic, and must
be proportioned to and limited by it. An im-
provement might cost double the benefit to
the land specially benefited."

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, it must fall to the ground, like any other merely arbitrary action which is supported by no principle."

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 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 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

In the case of The Tide-Water Co. v. Coster, authority of the legislature in this regard is quite without limits, the author observes 18 N. J. Eq. 527-8 [90 Am. Dec. 634], referred to by the supreme court of Michigan, that "the decided tendency of the later deit was said: "Where lands are improved by cisions, including those of the courts of New legislative action on the ground of public Jersey, Michigan, and Pennsylvania, is to utility, the cost of such improvement, it has hold that the legislative power is not unlimfrequently been held, may, to a certain de-ited, and that these assessments must be apportioned by some rule capable of producing gree, be imposed on the parties who, in consequence 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 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 pecul[287]iar manner benefited. *Beyond this their situation is like the rest of the community. The

ing, 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

172 U. S.

If the principles announced by the authorities above cited be applied to the present case, the result must be an affirmance of the judgment.

have been made in many of the state Con- | be to avoid the evil of withholding from him stitutions requiring uniformity and equal- a full and fair price for his lands, only to run ity of taxation, several courts of great re-into the equal evil of paying him two prices spectability, either by force of this require for it, the second price being at the expense ment or in the spirit of it, and perceiving of his neighbors." that special benefits 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 improvenient 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."

We have seen that by the Revised Statutes of Ohio relating to assessments, that 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 *corporation, §[290] 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 corpoIt is said that the judgment below is not ration, either in proportion to the benefits in accord with the decision of the supreme which may result from the improvement or court of Ohio in City of Cleveland v. Wick, according to the value of the property as18 Ohio St. 304, 310. But that is a mis- sessed, or by the front foot of the property take. That case only decided that the own- bounding and abutting upon the improveer whose property was taken for a public ment;" while by section 2271, whenever any improvement could not have his abutting street or avenue was opened, extended, property exempt from its due proportion of straightened, or widened, the special assessan assessment made to cover the expense in- ment for the cost and expense, or any part curred in making such improvement; that thereof, "shall be assessed only on the lots his liability in that regard was not affected and lands bounding and abutting on such by the fact that he was entitled to receive part or parts of said street or avenue so im[289]compensation for his property actually *tak proved, and shall include of such lots and en for the improvement without deduction on lands only to a fair average depth of lots in account of benefits to his other property. the neighborhood." It thus appears that the That the decision covered no other point is statute authorizes a special assessment upon shown by the following extract from the the bounding and abutting property by the opinion of the court: "The mischief which front foot for the entire cost and expense of existed under the old Constitution was, that the improvement, without taking special the benefits which were common to his neigh-benefits into account. And that was the bors, without charge, were deducted from the method pursued by the village of Norwood. price paid to the owner of land taken. The The corporation manifestly proceeded upon evil might well be denominated inequality of the theory that the abutting property could benefits and burdens among adjoining land- be made to bear the whole cost of the imowners. You paid for the owner's land in provement, whether such property was benprivileges, and left him still liable, equally efited or not to the extent of such cost. with his neighbors whose lands were untak- It is said that a court of equity ought not en, to any and all local assessments that to interpose to prevent the enforcement of the might afterwards be imposed. This was un-assessment in question, because the plaintiff equal, and therefore deemed unjust. Ex- did not show nor offer to show by proof that perience proved, moreover, that it led to the amount assessed upon her property was much abuse of the power of condemnation. in excess of the special benefits accruing to A full remedy is to be found for these evils it by reason of the opening of the street. This in the provision in question, without at all suggestion implies that if the proof had making it to interfere with the power of as- showed an excess of cost incurred in opening sessment. Construed thus, it is in perfect the street over the special benefits accruing accordance with the leading principle of tax- to the abutting property, a decree might ation in the new Constitution-uniformity properly have been made enjoining the asand equality of burdens. It simply guar-sessment to the extent simply that such cost antees to the owner of land condemned a full exceeded the benefits. We do not concur in price. When that is paid, he stands on a this view. As the pleadings show, the vilperfect equality with all other owners of ad- lage proceeded upon the theory, justified by joining lands, equally liable, as he ought to the words of the statute, that the entire cost be, to be taxed upon his other lands with incurred in opening the street, including the them. He has the full price of his land in when the assessment was by the front foot, value of the property appropriated, could, his pocket, and is an equal participant with be put upon the *abutting property, irrespec-[291] them in benefits to adjoining lands. To tive of special benefit. The assessment was throw the whole burden upon the others, in by the front foot and for a specific sum repsuch a case, would be to do them the precise resenting such cost, and that sum could not injustice which was done to him under the have been reduced under the ordinance of the old Constitution. To do so, would be to avoid village even if proof had been made that the one evil only to run into another. It would 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 en joining 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 German National Bank v. Kimball, 103 U.S.733 [26: 469]: "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 [23: 669]. The same principle was announced in Northern Pacific Railroad Co. v. Clark, 153 U. S. 252, 272 [38: 706, 714, 4 Inters. Com. Rep. 641].

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 estab lished 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 *plainly[293] 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.

In Cummings V. Merchants' National Bank, 101 U. S. 153, 157 [25: 903, 905], 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 [292]bank held a trust *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. § 5848 of the Revised Statutes of Ohio 1880; vol. 53 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 It should be observed that the decree did the common-law or equity side of its docket, not relieve the abutting property from liabilias the nature of the new right or new remedy ty for such amount as could be properly as requires. Van Norden v. Morton, 99 U. S. sessed against it. Its legal effect, as we now 378 [25: 453]. Here there can be no doubt adjudge, was only to prevent the enforcement that the remedy by injunction against an il- of the particular assessment in question. legal tax, expressly granted by the statute, It left the village, in its discretion, to is to be enforced, and can only be appropri- take such steps as were within its power ately enforced, on the equity side of the to take, either under existing statutes,

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