involved the validity of a statute relating to In Thomas v. Gain, 35 Mich. 155, 162 [24 [286]*"It 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 between the parties sessed; 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 The Tide-Water Co. v. Coster, utility, the cost of such improvement, it has consideration for the excess of the cost of In Dillon's Treatise on Municipal Corpo- authority of the legislature in this regard Jersey, Michigan, and Pennsylvania, is to that legislative power is not unlim 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 determin testably, private property is assumed by the [287]iar manner benefited. *Beyond this their situ- 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 of public p 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. have been made in many of the state Con- | be to avoid the evil of withholding from him stitutions 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 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 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." point is 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 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 [289]compensation for his property actually *taken for the improvement without deduction on account of benefits to his other property. That the decision covered no other poi 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 guarantees 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 a full and fair price for his lands, 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, 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 coгporation, cither 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 showed 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 *abutting property, irrespec-[291] tive of special benefit. 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 German National Bank v. Kimball, 103 U. S. 733 [26:469]: "Wehave 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]. 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 the common-law or equity side of its docket, as the nature of the new right or new remedy requires. Van Norden v. Morton, 99 U. S. 378 [25:453]. Here there can be no doubt that the remedy by injunction against an il 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. "It is 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: 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 particul cular 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. 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, 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 expense of opening the street as was found upon due and proper inquiry to be equal to [294]the special benefits accruing to 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 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 watermains 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, 351, 357 [31:763, 766, 768]. That case came here upon writ of error to the highest will, to the extent of such excess, be a taking court of New York. It related to an as 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 lay ing 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 gener al laws regulating such matters. The power conferred upon the Commissioners was not to make assessments upon abutting properties, [295]nor to give notice to the property 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 a street im sessment, by legislative enactment, upon among these lots, after public notice to all ingly 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, ssment, 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 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 the pipes, but to raise a fund to keep the sys-all of them. This appears from both the opin 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 assessed "without deduction for benefits to any property of the owner," would be of little practical value if, upon the opening of a pubsic 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. [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. It is so ordered. 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 législative determination is conclusive. Spencer v. Merchant, 100 Ν. Υ. 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 By the act of 1881 the legislature imposes the unpaid portion of the cost and expense, with the interest thereon, reasons. 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 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, 355 [31:763, 767], in which the judgment of the court of appeals of the state of New York was affirmed, and in which this court said: the "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 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 [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 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 [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 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 |