If the principles announced by the author-
ities 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 un-
equal, 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 reason-
able doctrine, that the cost of a local im-
provenient can be assessed upon particular
property only to the extent that it is spe-
cially and peculiarly benefited; and since the
excess beyond that is a benefit to the munic-
ipality at large, it must be borne by the gen-
eral treasury."

It is said that the judgment below is not
in accord with the decision of the supreme
court of Ohio in City of Cleveland v. Wick,
18 Ohio St. 304, 310. But that is a mis-
take. That case only decided that the own
er 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 in-
curred in making such improvement; that
his liability in that regard was not affected
by the fact that he was entitled to receive
[289]compensation for his property actually *tak

We have seen that by the Revised Statutes
of Ohio relating to assessments, that the vil
lage of Norwood was authorized to place the
cost and expense attending the condemna-
tion 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 abut-
ting and such adjacent and contiguous or
other benefited lots and lands in the corpo-
ration, cither in proportion to the benefits
which may result from the improvement or
according to the value of the property as-
sessed, or by the front foot of the property
bounding and abutting upon the improve-
ment;" while by section 2271, whenever any
street or avenue was opened, extended,
straightened, or widened, the special assess-
ment 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 im-
proved, 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 im-
provement, whether such property was ben-
efited or not to the extent of such cost.

en 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 neigh-
bors, 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 land-
owners. You paid for the owner's land in
privileges, and left him still liable, equally
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 as-
and 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 vil-
perfect 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 rep-
such 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

į

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 *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 pay. ment 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."

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 liabili as 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,

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.

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].

or under any authority that might there- tem in efficient repair. The moneys raised after be conferred upon it, to make a beyond the expense of laying the pipe are new assessment upon the plaintiff's abut- not paid into the general treasury of the ting property for so much of the ex- District, but are set aside to maintain and pense of opening the street as was found repair the system; and there is no such disupon due and proper inquiry to be equal to proportion between the amount assessed and [294]the special benefits accruing to the property. the actual cost as to show any abuse of legBy the decree rendered the court avoided the islative power. A similar objection was disperformance of functions appertaining to an posed of by the supreme judicial court of assessing tribunal or body, and left the sub- Massachusetts in the case of Leominster v. ject under the control of the local authorities Conant, 139 Mass. 384. In that case the designated by the state. Such a decree was validity of an assessment for a sewer was more appropriate than one enjoining the as- denied because the amount of the assessment sessment to such extent as, in the judgment exceeded the cost of the sewer; but the court of the circuit court, the cost of the improve- held that the legislation in question had ment exceeded the special benefits. The de- created a sewer system, and that it was cree does not prevent the village, if it has or lawful to make assessments by a uniform obtains power to that end, from proceeding rate which had been determined upon for the to make an assessment in conformity with sewerage territory." If the cost of laying the view indicated in this opinion, namely: the watermains in question in that case had That while abutting property may be special- exceeded the value of the property specially ly assessed on account of the expense attend- assessed, or had been in excess of any beneing the opening of a public street in front of fits received by that property, a different it, such assessment must be measured or question would have been presented. 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, 52, 56 [42: 943, 946, 948]. 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 erec

Nor do we think that the present case is
necessarily controlled by the decision in
Spencer v. Merchant, 125 U. S. 345, 351, 357
[31: 763, 766, 768]. That case came
here upon writ of error to the highest
court of New York. It related to an as-
sessment, by legislative enactment, upon
certain isolated parcels of land, of a
named aggregate amount which remained
unpaid of the cost of a street im-
provement. 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 re-
mained unpaid, adding a proportional part
of the expenses of making that assessment,
and interest since, was ordered by the legis-[296]
lature 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 up-
that sum was levied and assessed accord-
on the question of such apportionment; and

tion and maintenance of reservoirs and water
mains. This court decided that "it was com-
petent for Congress to create a general sys-
tem to store water and furnish it to the in-ingly upon these lots, one of which was
owned by the plaintiff. The question sub-
mitted to the supreme court of the state was
whether this assessment on the plaintiff's
lot was valid. He contended that the stat-
ute of 1881 was unconstitutional and void,
because it was an attempt by the legislature

habitants 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 gener-to validate a void assessment, without giving
al laws regulating such matters. The power the owners of the lands assessed an oppor-
conferred upon the Commissioners was not to tunity to be heard upon the whole amount of
make assessments upon abutting properties, the assessment." Again: "The statute of
[295]nor to give notice to the property owners of 1881 afforded to the owners notice and hear-
such assessments, but to determine the ques- ing upon the question of equitable apportion-
tion of the propriety and necessity of laying ment among them of the sum directed to be
water mains and pipes, and of erecting fire levied upon all of them, and thus enabled
plugs and hydrants, and their bona fide exer- them to contest the constitutionality of the
cise of such power cannot be reviewed by the statute; and that was all the notice and hear-
courts." One of the points in the case was ing to which they were entitled." The point
presented by the contention that "the assess- raised
that case-the only point
ment exceeded the actual cost of the work." in judgment-was one relating to proper
But that objection, the court said, overlooked notice to the owners of the property as-
"the fact that the laying of this main was sessed, in order that they might be heard
part of the water system, and that the assess-upon the question of the equitable apportion-
ment prescribed was not merely to put down ment of the sum directed to be levied upon
the pipes, but to raise a fund to keep the sys- all of them. This appears from both the opin-

in

ion 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 as-
sessed "without deduction for benefits to any
property of the owner," would be of little
practical value if, upon the opening of a pub-
lic street through private property, the
abutting property of the owner, whose land
was taken for the street, can under legisla-
tive authority be assessed, not only for such
amount as will be equal to the benefits re-
ceived, but for such additional amount as
will meet the excess of expense over benefits.
[297] *The judgment of the Circuit Court must
be affirmed, upon the ground that the assess-power of taxation, has the right to direct the
ment against the plaintiff's abutting proper-
ty was under a rule which excluded any in-
quiry as to special benefits, and the neces-
sary 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 com-
pensation.

upon that portion of the property benefited
which has thus far borne *none of the burden.[298]
In so doing, it necessarily determines two
things, viz., the amount to be realized, and
the property specially benefited by the ex-
penditure 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 ques-
tion 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 deci-
sion must of course be final."

It is so ordered.

Mr. Justice Brewer dissenting:

I dissent from the opinion and judgment of the court in this case, and for these rea

sons:

First. 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. Cleveland v. Wick, 18 Ohio St.

304.

Second. Equally true is this under the Constitution of the United States. Shoemaker v. United States, 147 U. S. 282, 302 [37: 170, 186]; Bauman v. Ross, 167 U. S. 548 [42: 270].

Third. 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.

Fourth. 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 leg islature, whose action cannot be reviewed in the courts upon the ground that it acted unjustly or without appropriate and adequate By the act of 1881 the legislature imposes the unpaid portion of the cost and expense, with the interest thereon,

reasons.

Same case 125 U. S. 345, 355 [31: 763,
767], in which the judgment of the court of
appeals of the state of New York was af-
firmed, and in which this court said:

"The legislature, in the exercise of its
whole or a part of the expense of a public im-
provement, 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 discre-
tion. Willard v. Presbury, 14 Wall. 676 [20:
719]; Davidson v. New Orleans, 96 U. S. 97
[24: 616]; Mobile County v. Kimball, 102 U.
S. 691, 703, 704 [26: 238, 242]; Hagar v.
Reclamation District No. 108, 111 U. S. 701
[28: 569].

Williams v. Eggleston, 170 U. S. 304, 311
[42: 1047, 1050], in which this court de-
clared:

"Neither can it be doubted that, if the state Constitution does not prohibit, the legisla ture, speaking generally, may create a new taxing district, determine what territory Ishall 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 [42: 943], 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's Municipal Corporations, 4th edi-[299] tion, volume 2, section 752, in reference to this matter of assessment:

"Whether the expense of making such improvements shall be paid out of the genera! 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 | paid to defendant, or into the circuit court for improvement. The rule would be the same his use, the tax which was its true share of if one hundred different lots belonging to as the public burden, the decree of the many different parties faced on the new 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.

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 leg. islature 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 legisla ture 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. [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 pay ment, 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, 617 [23: 669, 675], 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 re- "That is to say, the said defendant corpolief in equity. These propositions have been ration has undertaken to take 300 by 50 feet uniformly and consistently followed. See, of this complainant's property, and, fixing among late cases, Northern Pacific Railroad the valuation upon it by proceedings at law Co. v. Clark, 153 U. S. 252, 272 [38: 706, now undertakes to assess upon the com714, 4 Inters. Com. Rep. 641]. There is plainant's adjacent property, 300 feet upon nothing in Cummings v. Merchants' Nation- each side, the said $2,000, the value of the al Bank, 101 U. S. 153 [25: 903], in conflict same as adjudged by the court in the said with the foregoing propositions. In that condemnation proceedings, with all of the case it appeared that the local assessors of costs incidental thereto, including counsel Lucas county, in which the bank was situ- and witness fees, so that in effect the prop ated, agreed upon a rule of assessment erty of this complainant has been taken and by which money or invested capital was as-is sought to be taken by the defendant corposessed at six tenths of its value, while the ration for the uses of itself and the general shares of national banks were assessed at public without any compensation in fact to their full cash value. It was held that an the complainant therefor, but at an actual unequal rule of assessment having been expense and outlay in addition, that is to adopted by the assessors, and that rule "ap- say, the corporation purposes by assessment plied, not solely to one individual, but to a to make this complainant not only pay for large class of individuals or corporations," her own property taken for the benefit of the equity might properly interfere. But in defendant, but also to pay the costs of so that case the bank had paid to the county taking it without compensation. treasurer the tax which it ought to have paid as shown by the closing words of the opinion of the court: "The complainant having

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, so far as the record[301] 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 Ivenhoe 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 instalments, with interest at six per cent, the first instalment being $354.97 and the last or tenth instalment $235.17, lessening the same from year to year in an amount of about $13 per annum.

"Wherefore she invokes her remedy given[302)