the citizens may be required to make contri: which would attempt to make one person, or
bution in that node 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 Macon v. Patty, 57 Miss. 378, 386 (34 in respect of the land taken for the street; Am. Rep. 451], the supreme court of Missis- for, by opening the street at his own cost he sippi said that a special assessment is un might save at least the expense attending like an ordinary tax, in that the proceeds formal proceedings of condemnation. It canof the assessment must be expended in an not be that any such result is consistent with improvement from which "a benefit clearly the principles upon which rests the power to exceptive and plainly perceived must inure make special assessments upon property in to the property upon which it is imposed.” order to meet the expense of public improve

So, In the matter of Canal Street, 11 ments in the vicinity of such property.
Wend. 156, which related to an assessment to

The views we have expressed are supported meet the expenses of opening a street, the by other adjudged cases, as well as by reason court, after observing that the principle that and by the principles which must be recog. private property shall not be taken for public nized as essential for the protection of pri. use without just compensation was found in vate property against the arbitrary action of the Constitution and laws of the state, and government. The importance of the question had its foundation in those elementary prin. before us renders it appropriate to refer to ciples of equity and justice which lie at the some of those cases.

root of the social compact, said: “The cor- In State, Agens, v. Mayor, etc., of Newark, [281]poration may see the extent of the *benefit of 37 N. J. L. 416, 420-423, the question arose

any improvement, before proceedings are as to the validity of an assessment of the excommenced; but the extent of injury to penses incurred in repairing the roadbed of be done to individuals cannot be known to a portion of one of the streets of the city of them until the coming in of the report of the Newark. The assessment was made in concommissioners; they may then be satisfied formity to a statute that undertook to fix, that the property which is to be benefited at the mere will of the legislature, the ratio will not be benefited to the extent of the as- of expense to be put upon the owners of propBessinent necessary to indemnify those whose erty along the line of the improvement. property is taken from them. What are Chief Justice Beasley, speaking for the court they to do? If they proceed, they deprive of errors and appeals, said: "The doctrine some persons of their property unjustly; if that it is competent for the legislature to the report of the commissioners is correct, direct the expense of opening, paving, or imthe amount awarded to the owners of prop proving a public street, or at least some part erty taken cannot be reduced without in. of such expense, to be put as a special burden justice to them. If the assessment is con. on the property in the neighborhood of such firmed and enforced, the owners of the adja- improvement, cannot, at this day, be drawn cent property must pay beyond the enhanced in question. There is nothing in the Consti. value of their own property, and all such ex- tution of this state that requires that all cess is private property taken for public use property in the state, or in any particular without just compensation.”

subdivision of the state, must be embraced in In McCormack v. Patchin, 53 Mo. 36 (14 the operation of every law levying a tax. Am. Rep. 440], the supreme court of Mis- That the effect of such laws may not extend souri said: “The whole theory of local tax. beyond certain prescribed limits is perfectly ation or assessments is that the improve- indisputable. It is upon this principle that ments for which they are levied afford a re- taxes raised in counties, townships, and cities muneration in the way of benefits. A law are vindicated. But while it is thus clear

that the burden of a particular tax may be ment. As to such excess I cannot distin. placed on any political district to whose bene- guish an act exacting its payment from the fit such tax is to inure, it seems to me it is exercise of the power of eminent domain. In equally clear that, when such burden is case of taxation the citizen pays his quota of sought to be imposed on particular lands, not the common burden; when his land is sequesin themselves constituting a political sub-tered for the public use he contributes more

division of the state, we at once approach than such quota, and this is the distinction (283]the *line which is the boundary between acts between the effect of the exercise of the tax.

of taxation and acts of confiscation. I think ing power and that of eminent domain. it impossible to assert, with the least show When, then, the overplus beyond benefits of reason, that the legislative right to select from these local improvements is laid upon a the subject of taxation is not a limited right. few landowners, such citizens, with respect For it would seem much more in accordance to such overplus, are required to defray more with correct theory to maintain that the pow. than their share of the public outlay, and the er of selection of the property to be taxed coercive act is not within the proper scope cannot be contracted to narrower bounds of the power to tax.” 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 å 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 *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 else

tant 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 improve- In Barnes v. Dyer, 56 Vt. 469, 471, which 172 U. s. U. S.. BOOK 43. 29



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involved the validity of a statute relating to consideration for the excess of the cost of
the construction and repair of sidewalks in improvement over the enhancement of the
a city of Vermont, under the authority of its property within the operation of the act is
common council, and directing the expense to the public benefit. The expenditure of this
be assessed on the owners of property through portion of the cost of the work can only be
which or fronting which such sidewalks justified on the ground of benefit to the pub-
should be constructed, it was said: “The lic. I am aware of no principle that will
act in question made no express allusion to permit the expense incurred in conferring
assessment on account of benefit; neither does such benefit on the public to be laid in the
it limit the assessment to the amount of form of a tax on individuals.”
benefit; yet, as we have seen, the right to as- In Dillon's Treatise on Municipal Corpo-
sess at all depends solely on benefic, and mustrations there is an extended discussion of this
be proportioned to and limited by it. An im- whole subject. In section 761 he states the
provement might cost double the benefit to general results of the cases in the several
the land specially benefited.”

states concerning special assessments for loIn Thomas v. Gain, 35 Mich. 155, 162 (24 cal improvements. “After stating that a loAm. Rep. 535], Chief Justice Cooley, speak cal assessment or tax upon the property ben

ing for the supreme court of Michigan, said: efited by a local improvement may be au[286]** It is generally agreed that an assessment thorized by the legislature, he says: "Special

levied without regard to actual or probable benefits to the property assessed, that is, ben-
benefits is unlawful, as constituting an at-efits received by it in addition to those re-
tempt to appropriate private property, to ceived by the community at large, is the true
public uses. This idea is strongly stated in and only just foundation upon which local
The Tide-Water Co. v. Coster, 18 N.J.Eq.519 assessments can rest; and to the extent of
(90 Am. Dec. 634), which has often been special benefits it is everywhere admitted
cited with approval in other cases. It is ad- that the legislature may authorize local
mitted that the legislature may prescribe taxes or assessments to be made.” Again, the
the rule for the apportionment of benefits, author says: “When not restrained by the
but it is not conceded that its power in this Constitution of the particular state, the leg.
regard is unlimited. The rule must at least islature has a discretion, commensurate with
be one which it is legally possible may be the broad domain of legislative power, in
just and equal as between the parties as-
sessed; if it is not conceivable that the rule property is specially benefited and how the

making provisions for ascertaining what
prescribed is one which will apportion the benefits shall be apportioned. This propo-
þurden justly, or with such proximate jus: sition, as stated, is nowhere denied. But the
tice as is usually attainable in tax cases, it
must fall to the ground, like any other mere.

adjudged cases do not agree upon the extent ly arbitrary action which is supported by no fact that some courts have asserted that the

of legislative power.” While recognizing the principle." In the case of The Tide-Water Co. v. Coster, is quite without limits, the author observes

authority of the legislature in this regard 18 N. J. Eq. 527-8 [90 Am. Dec. 634), referred to by the supreme court of Michigan, cisions, including those of the courts of New

that “the decided tendency of the later delegislative 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 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[2881 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 desig. sential characteristics of a tax. We are to nated 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 bur

so 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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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 If the principles announced by the author. parcel of contributing property was the only ities above cited be applied to the present principle upon which such assessments can case, the result must be an affirmance of the justly rest, and that any other rule is un judgment. equal, oppressive, and arbitrary, have denied We have seen that by the Revised Statutes the unlimited scope of legislative discretion of Ohio relating to assessments, that the vil. and power, and asserted what must upon lage of Norwood was authorized to place the principle be regarded as the just and reason- cost and expense attending the condemnaable ductrine, that the cost of a local im- tion of the plaintiff's land for a public street provenient can be assessed upon particular on the general tax list of the *corporation, $[290] property only to the extent that it is spe- 2263; but if the village declined to adopt cially and peculiarly benefited; and since the that course, it was required by section 2264 excess beyond that is a benefit to the munic- to assess such cost and expense "on the abutipality at large, it must be borne by the gen- ting and such adjacent and contiguous or eral treasury.

other benefited lots and lands in the corpoIt is said that the judgment below is not ration, cither in proportion to the beneñts 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

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 im

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 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 them in benefits to adjoining lands. To tive of special benefit. The assessment was

be put upon the *abutting property, irrespec-[291) 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 court.” Again: "Independently of this assessment was in itself an illegal one be- statute, however, we are of opinion that cause it rested upon a basis that excluded when a rule or system of valuation is adopted any consideration of benefits. A decree en by those whose duty it is to make the assessjoining the whole assessment was therefore ment, which is designed to operate unequally the only appropriate one.

and to violate a fundamental principle of the Nor is the present case controlled by the Constitution, and when this rule is applied, general principle announced in many cases not solely to one individual, but to a large that a court of equity will not relieve a party class of individuals or corporations, that against an assessment for taxation unless he equity may properly interfere to restrain the tenders or offers to pay what he admits or operation of this unconstitutional exercise of what is seen to be due. That rule is thus power.” These observations are pertinent to stated in German National Bank v. Kimball, the question of the power and duty of a court 103 U. S. 733 [26: 469): “We have announced of equity to interfere for the plaintiff's relief. more than once that it is the established rule The present case is one of illegal assessment of this court that no one can be permitted to under a rule or system which, as we have go into a court of equity to enjoin the col- stated, violated the Constitution, in that the lection of a tax, until he has shown him- entire cost of the street improvement was imself entitled to the aid of the court by paying posed upon the abutting property, by the so much of the tax assessed against him as it front foot, without any reference to special can be plainly seen he ought to pay; that he benefits. shall not be permitted, because his tax is in Mr. High, in his Treatise on Injunctions, excess of what is just and lawful, to screen says that no principle is more firmly estabhimself from paying any tax at all until the lished than that requiring a taxpayer, who precise amount which he ought to pay is as- seeks the aid of an injunction against the encertained by a court of equity; and that the forcement or collection of a tax, first to pay owner of property liable to taxation is bound or tender the amount which is conceded to be to contribute his lawful share to the current legally and properly due, or which is *plainly[293] expenses of government, and cannot throw seen to be due. But he also says: “It is that share on others while he engages in an held, however, that the general rule requiring expensive and protracted litigation to ascer payment or tender of the amount actually tain that the amount which he is assessed is due as a condition to equitable relief against or is not a few dollars more than it ought the illegal portion of the tax, has no applicato be. But that before he asks this exact and tion to a case where the entire tax fails by scrupulous justice, he must first do equity reason of an illegal assessment. And in such by paying so much as it is clear he ougħt to case an injunction is proper without pay. pay, and contest and delay only the remain-ment or tender of any portion of the tax, der. State Railroad Tax Cases, 92 U. S. 575 since it is impossible for the court to deter[23: 669). The same principle was an- mine what portion is actually due, there benounced in Northern Pacific Railroad Co. v. ing no valid or legal tax assessed.” Clark, 153 U. S. 252, 272 [38: 706, 714, 4 In- The present case is not one in which—as in ters. Com. Rep. 641].

most of the cases brought to enjoin the collecIn Cummings v. Merchants' National tion of taxes or the enforcement of special asBank, 101 U. S. 153, 157 [25: 903, 905], sessments—it can be plainly or clearly seen, which was the case of an injunction against from the showing made by the pleadings, that the enforcement in Ohio of an illegal assess. a particular amount, if no more, is due from ment upon the shares of stock of a national the plaintiff, and which amount should be

bank, this court, after observing that the paid or tendered before equity would inter(292]bank held a trust *relation that authorized a fere. It is rather a case in which the entire

court of equity to see that it was protected assessment is illegal. In such a case it was in the exercise of the duties appertaining to not necessary to tender, as a condition of reit, said: "But the statute of the state ex- lief being granted to the plaintiff, any sum as pressly declares that suits may be brought to representing what she supposed, or might enjoin the illegal levy of taxes and assess. guess, or was willing to concede, was the exments, or the collection of them. § 5848 ofcess of cost over any benefits accruing to the the Revised Statutes of Ohio 1880; vol. 53 property. She was entitled, without making Laws of Ohio, 178, 83 1, 2. And though we such a tender, to ask a court of equity to enhave repeatedly decided in this court that join the enforcement of a rule of assessment the statute of a state cannot control the that infringed upon her constitutional mode of procedure in equity cases in Fed rights. In our judgment the circuit court eral courts, nor deprive them of their sepa- properly enjoined the enforcement of the as. rate equity jurisdiction, we have also held sessment as it was, without going into proofs that, where a statute of a state created a as to the excess of the cost of opening the new right or provided a new remedy, the Fed street over special benefits. eral 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 asrequires. 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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