172 U.S. 269 | SCOTUS | 1898
Lead Opinion
delivered the opinion of the court.
This case arises out of the condemnation of certain lands for the purpose of opening a street in the Village of Norwood, a municipal corporation in Hamilton County, Ohio.
The particular question presented for consideration involves the validity of an ordinance of that Village, assessing upon
By the final decree of the Circuit Court of the United States it was adjudged that the assessment complained of was in violation of the Fourteenth Amendment of the Constitution of the United States forbidding any State from depriving a person of property without due process of law; and the Tillage was perpetually enjoined from enforcing the assessment. 74 Fed. Rep. 997.
The present appeal was prosecuted directly to this court, because the case involved the construction and application of the Constitution of the United States.
It will conduce to a clear understanding of the case to ascertain the powers of the Tillage under the constitution and statutes of Ohio, and to refer somewhat in detail to the proceedings instituted for the opening of the street through appellee’s property.
By the constitution of Ohio it is declared: “ Private property shall ever be held inviolate, but subservient to the public welfare. When taken in time of Avar or other public exigency, imperatively requiring its immediate seizure or for the purpose of making or repairing roads, which shall be open to the public, without charge, a compensation shall be made to the owner, in money, and in all other cases, Avhere private property shall be taken for public use, a compensation therefor shall first be made in money ; . . . and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner.” Const. Ohio, 1851, Art. 1, § 19, Bill of Rights; 3 Bates Anno. Ohio Stat. 3525.
Cities and villages .in Ohio are by statute giAren power to lay off, establish, open, Aviden, narrow, straighten, extend, keep in order and repair, and light streets, alleys, public grounds and buildings, wharves, landing places, bridges and market spaces Avithin the corporation, and to appropriate private property for the use of the corporation. And “ each city and village may appropriate, enter upon, and hold real
Other provisions of the statute prescribe the steps to be taken in the appropriation by a municipal corporation of private property for public purposes. §§ 2233 to 2261 inclusive.
It is further provided by the statutes of Ohio, (1890) Title XII, Assessments, etc., chap. 4, as follows:
“ § 2263. When the corporation appropriates, or otherwise acquires, lots or lands for the purpose of laying off, opening, extending, straightening or widening a street, alley or other public highway, or is possessed of property which it desires to improve for street purposes, the council may assess the cost and expenses of such appropriation or acquisition, and of the improvement, or of either, or of any part of either, upon the general tax list, in which case the same shall be assessed upon all the taxable real and personal property in the corporation.
“ § 2264. In the cases provided for in the last section, and in all cases where an improvement of any kind is made of an existing street, alley or other public highway, the council may decline to assess the costs and expenses in the last section mentioned or any part thereof, or the costs and expenses or any-.part thereof of such improvement,.except as hereinafter mentioned, on the general tax list, in which event such costs and expenses, or any part thereof which may not be so assessed on the general tax list, shall be assessed by the council on the abutting and such adjacent and contiguous or other benefited lots and lands in the corporation, either in proportion to the benefits which may result from the improve*273 ment, or according to the value of the property assessed, or by the front foot of the property hounding and abutting upon the improvement, as the council, by ordinance setting forth specifically the lots and lands to be assessed, may determine before the improvement is made, and in the manner and subject to the restrictions herein contained; and the assessments shall be payable in one or more instalments, and at such times as the council may prescribe. ...” 1 Rev. Stat. Ohio, p. 581.
Section 2271 provides: “ In cities of the first grade of the first class, and in corporations in counties containing a city of the first grade of the first class, the tax or assessment especially levied or assessed upon any lot or land for any improvement, shall not, except as provided in § 2272, exceed twenty-five per centum of the value of such lot or land after the improvement is made, and the cost exceeding that per centum shall be paid by the corporation out of its general revenue; . . . and whenever any street or avenue is opened, extended, straightened or widened, the special assessment for the cost and expense, or any part thereof, shall be assessed only on the lots am,d lands hounding and abutting on such part or parts of said street or ave?iue so improved, and shall include of such lots and lands only to a fair average depth of lots in the neighborhood, but shall also include other lots and parts thereof and lands to such depth; and whenever at least one half in width of any street or avenue has been dedicated for such purpose from the lots and lands lying on one side of the line of such street or avenue, and such street or avenue is widened by talcing from lots and lands on the other side thereof, no part of the cost and expense thus increased [incurred] shall be assessed upon the lots and lands lying on said first-mentioned side, but only upon the other side, and as aforesaid, but said special assessment shall not be in any case in excess of benefits.” 1 Eev. Stat. Ohio, p. 586.
Section 2272 relates to assessments for improvements made in conformity with the petition of the owners of property.
By section 2277 it is provided that “ in cases wherein it is determined to assess the whole or any part of the cost of an improvement upon the lot or lands bounding or abutting
Section 2281 is in these -words : “ The cost of any improvement contemplated in this chapter shall include the purchase money of real estate, or any interest therein, when the same has been acquired by purchase, or the value thereof as found by the jury, where the same has been appropriated, the costs and expenses of the proceedings, the damages assessed in favor of any owner of adjoining lands and interest thereon, the costs and expenses of the assessment, the expense of the preliminary and other surveys, and of printing, publishing the notices and ordinances required, including notice of assessment, and serving notices on property owners, the cost of construction, interest on bonds where bonds have been issued in anticipation of the collection of assessment's, and any other necessary expenditure.”
By an ordinance approved October 19, 1891, the Tillage declared its intention to condemn and appropriate, and by that ordinance condemned and appropriated, the lands or grounds in question for the purpose of opening and extending Ivenhoe Avenue: and in order to make such appropriation effectual, the ordinance directed the institution of the neces- • sary proceedings in court for an inquiry and assessment of the •compensation to be paid for the property to be condemned.
The ordinance provided that the cost and expense of the condemnation of the property, including the compensation paid to the owners, the cost of the condemnation proceedings, the cost of advertising and all other costs and the interest on bonds issued, if any, should be assessed “per front foot upon the property bounding and abutting on that part of Ivenhoe
Under that ordinance, application was made by the Tillage to the probate court of Hamilton County for the empanelling of a jury to assess the compensation to be paid for the property to be taken. A jury was accordingly empanelled, and it assessed the- plaintiff’s compensation at $2000, declaring that they made the “assessment irrespective of any benefit to the owner from any improvement proposed by said corporation.”
The assessment was confirmed by the court, the amount assessed was paid to the owner, and it was ordered that the Tillage have immediate possession and ownership of the premises for the uses and purposes specified in the ordinance.
The property condemned is indicated by the following plat:
By the same ordinance provision was made for issuing bonds to provide for the payment of the cost and expense of the condemnation, which included the amount found by the jury as compensation for the property taken, the costs in the condemnation proceedings, solicitor and expert witness fees, advertising, etc.; in all, $2218.58.
The present suit was brought to obtain a decree restraining the Tillage from enforcing the assessment in question against the abutting property of the plaintiff.
It was conceded that the defendant assessed back upon the plaintiff’s 300 feet of land upon either side of the strip taken (making 600 feet in all of frontage upon the strip condemned) the above sum of $2218.58, 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; and the Tillage admitted that the assessment had been placed upon the tax duplicate, and sent to the county treasurer for collection, as a lien mid charge against the abutting property owned by the plaintiff.
But the Tillage alleged that the appropriation proceedings and consequent assessment were all in strict conformity with the laws and statutes of the State of Ohio and in pursuance of due process of law; that the opening and extension of Ivenhoe Avenue constituted a public improvement for which the abutting property was liable to assessment under the laws of Ohio; that the counsel fees, witness fees and costs included in such total assessment were a part .of the legitimate ex
It was agreed at the hearing of the present case that the sum awarded by the verdict of the jury was paid to and received by the plaintiff, and that it Avas that sum, together with the costs and charges, that the Tillage undertook to assess back upon the land upon either side of said strip of land.
The plaintiff’s suit proceeded upon the ground, distinctly stated, that the assessment in question was in violation of the Fourteenth Amendment providing that no State shall deprive any person of property without due process of law nor deny to any person within its jurisdiction the equal protection of the laws, as well as of the Bill of Bights of the Constitution of Ohio.
It has been adjudged that the due process of' law prescribed by that Amendment requires compensation to be made or secured to the owner when private property is taken by a State or under its authority for public use. Chicago, Burlington &c. Railroad v. Chicago, 166 U. S. 226, 241; Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685, 695.
The taking of the plaintiff’s land for the street was under the power of eminent domain —a power which this court has said was the offspring of political necessity, and inseparable from sovereignty unless denied to it by the fundamental law. Searl v. Lake County School District, 133 U. S. 553. But the assessment of the abutting property for the cost and expense incurred by the Tillage Avas an exercise of the power of taxation. Except for the provision of the constitution of Ohio above quoted, the State could have authorized benefits to be deducted from the actual value of the land taken, without violating the constitutional injunction that compensation be made for private property taken for public use; for the benefits received could be properly regarded as compensation fro tanto for the property appropriated to public use. But
Undoubtedly abutting owners may be subjected to special assessments to meet the expenses of opening public highways in front of their property — such assessments, according to well-established principles, resting upon the ground that special burdens may be imposed for special or peculiar benefits accruing from public improvements. Mobile County v. Kimball, 102 U. S. 691, 703, 704.; Illinois Central Railroad v. Decatur, 147 U. S. 190, 202; Bauman v. Ross, 167 U. S. 548, 589, and authorities there cited. And according to the weight of judicial authority, the legislature has a large discretion in defining the territory to be deemed specially benefited by a public improvement, and which may be subjected to special assessment to meet the cost of such improvements. In Williams v. Eggleston, 170 U. S. 304, 311, where the only question, as this court stated, was as to the power of the legislature to cast the burden of a public improvement upon certain towns, which had been judicially determined to be towns benefited by such improvement, it was said: “Neither can it be doubted that, if the state constitution does not prohibit, the legislature, speaking generally, may create a new taxing district, determine what territory shall belong to such district and what property shall be considered as benefited by a proposed improvement.”
But the power of the legislature in these matters is not unlimited. There is a point beyond which the legislative department, even when exerting the power of taxation, may not go consistently with the citizen’s right of property. As already indicated, the principle underlying special assessments to meet the cost of public improvements is that the property upon which they are imposed is peculiarly benefited, and therefore the owners do not, in fact, pay anything in excess of
In our judgment, the exaction from the owner of private property of the cost of a public improvement in substantial excess of the special benefits accruing to him is, to the extent of such excess, a taking, under the guise of taxation, of private property for public use without compensation. We say “ substantial excess,” because exact equality of taxation is not always attainable, and for that reason the excess of cost over special benefits, unless it be of a material character, ought not to be regarded by a court of equity when its aid is invoked to restrain the enforcement of a special assessment.
In Illinois Central Railroad v. Decatur, 147 U. S. 190, 202, —- where it was held that a provision in the charter of a railroad company exempting it from taxation did not exempt it from a municipal assessment imposed upon its land for grading and paving a street, •— the decision rested upon the ground that a special assessment proceeds on the theory that the property charged therewith derives an increased value from the improvement, “ the enhancement in value being the consideration for the charge.”
In Macon v. Patty, 57 Mississippi, 378, 386, 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. 154, 155, 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 the 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 corporation may see the extent of the
In McCormack v. Patchin, 53 Missouri, 33, 36, the Supreme Court of Missouri said : “ The whole theo^r of local taxation or assessments is that the improvements for which they are levied afford a remuneration in the way of benefits. A law which would attempt to make one person, or a given number of persons, under the guise of local assessments, pay a general revenue for the public at large, would not be an exercise of the taxing power, but an act of confiscation.” See also Zoeller v. Kellogg, 4 Mo. App. 163.
In State &c. v. Hoboken, 36 N. J. L. 291, 293, which was the case of the improvement of a street and a special assessment to meet the cost, — such cost being in excess of the benefits received by the property owner, — it was held that to the extent of such excess private property was taken for public use without compensation, because that received by the landowner was not equal to that taken from him.
It will not escape observation that if the entire cost incurred by a municipal corporation in condemning land for the purpose of opening or extending a street can be assessed back upon the abutting property, without inquiry in any form as to the special benefits received by the-owner, the result will be more injurious to the owner than if he had been required, in the first instance, to open the street at his own cost, without
The views we have expressed are supported by other adjudged cases, as well as by reason and by the principles which must be recognized 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 v. Newark, 37 N. J. L. 415, 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 cqmpetent 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 burthen 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 that the burthen of a particular tax may be placed on any political district to whose benefit such tax is to enure, it seems to me it is equally clear that, when such burthen is sought to be imposed on particular lands, not in themselves constituting a political subdivision of the State, we at once approach the
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 universally condemned,
So, in Bogert v. Elizabeth City, 27 N. J. Eq. 568, 569, which involved the validity of a provision in the charter of a city directing the whole cost of special improvements to be put on the property on the line of the street opposite such improvements, the assessments to be made in a just and equitable manner by the common city council, the court said: “ The sum of the expense is ordered to be put on certain designated property, without regard to the proportion of benefit it has received from the improvement. The direction is perfectly clear; the entire burthen is to be borne by the land along the line of the improvement, and the ratio of distribution among the respective lots is left to the judgment of the common council. Such a power, according to legal rules now at rest in this State, cannot be executed. The whole clause is nugatory and void, and all proceedings under it are not mere irregularities, but are nullities.”
In Barnes v. Dyer, 56 Vermont, 469, 471, which involved the validity of a statute relating to the construction and repair of sidewalks in a city of Yermont, under the authority of its common council, and directing the expense to be assessed on the owners of property through which or fronting which such sidewalks should be constructed, it was said: “The act in question made no express allusion to assessment on account of benefit; neither does it limit the assessment to the amount of benefit. Yet, as we have seen, the right to assess at all depends solely on benefit, and must be proportioned to and limited by it. An improvement might cost double the benefit to the land specially benefited.”
In Thomas v. Gain, 35 Michigan, 155, 162, 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 Tide-Water Co. v. Coster, 18 N. J. Eq. (3 C. E. Green) 519, 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 burthen 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 Tide-Water Co. v. Coster, supra, 518, 527, 528, referred to by the Supreme Court of Michigan, it was said : “ Where lands are improved by legislative action on the ground of public utility, the cost of such improvement, it has frequently been held, may, to a certain degree, be imposed 'on the parties- who, in consequence of owning the lands in the vicinity of such improvement, receive a peculiar advantage. By the operation of such a system it is not considered that the property of the individual, or any part of it, is taken from him for the public use, because he is compensated in the enhanced value of such property. But it is clear this principle is only applicable when the benefit is commensurate to the burthen, when that which is received by the landowner is equal or superior in value to the sum exacted ; for if the sum exacted be in excess, then to that extent, most incontestably, 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 peculiar manner benefited.
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 authority of the legislature in this regard is quite without limits, the author observes that “ the decided tendency of the later decisions, including those of the courts of New Jersey, Michigan and Pennsylvania, is to hold that the legislative power is not unlimited, and that these assessments must be apportioned by some rule capable of producing reasonable equality, and that provisions of such a nature as to make it legally impossible that the burden can be apportioned with proximate equality are arbitrary exactions and not an exercise of legislative authority.” He further says:
It is said that the judgment below is not in accord with the decision of the Supreme Court of Ohio in Cleveland City v. Wick, 18 Ohio St. 303, 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 compensation for his property actually
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 Eevised Statutes of Ohio relating to assessments, the Tillage 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
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 Tillage 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
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 National Bank v. Kimball, 103 U. S. 732, 733: “"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.” The same principle was announced in Northern Pacific Railroad v. Clark, 153 U. S. 252, 272.
In Cummings v. National Bank, 101 U. S. 153, 157, 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 bank held a trust
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
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.
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. It left the Tillage, in its discretion, to take such steps as were within its power to take, either under existing statutes, or under any authority that might thereafter be conferred upon it, to make a new assessment upon the plaintiff’s abutting property for so much of the expense of opening the street as was found upon due and proper inquiry to be equal to the special benefits accruing to
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. 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 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 general laws regulating such matters. The power conferred upon the commissioners was, not to make assessments upon abutting properties, nor to give notice to the prop
Nor do we think that the present case is necessarily controlled by the decision in Spencer v. Merchant, 125 H. S. 345, 351, 357. That case came here upon writ of error to the highest court of New York. It related to an assessment, by legislative enactment, upon certain isolated parcels of land, of a named aggregate amount which remained unpaid of the cost of a street improvement. 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 remained unpaid, adding a proportional part of the expenses of making that assessment, and interest since, was
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 public 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.
Dissenting Opinion
dissenting.
I dissent from the opinion and judgment of the court in this case and for these reasons:
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; Bauman v. Boss, 167 U. S. 548.
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 awai’d 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 legislature, whose action cannot be reviewed in the courts upon the ground that it acted unjustly or without appropriate and adequate reasons. . . . By the act of 1881, the legislature imposes the unpaid portion of the cost and expense, with the interest thereon, upon that portion of the property benefited which has thus far borne*298 none of the burden. 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 pofver, its decision must of course be final.”
Same Case, 125 U. S. 345, 355, in which the judgment of the Court of Appeals of the State of New York was affirmed, and in which this court said : “ 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 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 discretion. Willard v. Presbury, 14 Wall. 676 ; Davidson v. New Orleans, 96 U. S. 97; Mobile County v. Kimball, 102 U. S. 691, 703, 704; Hagar v. Reclamation District, 111 U. S. 701.”
Williams v. Eggleston, 170 U. S. 304, 311, 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, in which this court sustained an act of Congress in respect to the District of Columbia, not only determining the ai’ea 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
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 improvement. The rule would be the same if one hundred different lots belonging to as many different parties faced on the new 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 legislature 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 legislature 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.
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,
“Tour 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 $2218.58, payable in instalments, with interest at six per cent, the first instalment being $351.97 and the last or tenth instalment $235.17, lessening the same from year to year in an amount of about $13 per annum.
“ That is -to say, the said defendant corporation has undertaken to take 300 by 50 feet of this complainant’s property, and, fixing the valuation upon it by proceedings at law, now undertakes to assess upon the complainant’s adjacent property, 300 feet upon each side, the said $2000, the value of the same as adjudged by the court in the said condemnation proceedings, with all of the costs incidental thereto, including counsel and witness fees, so that in effect the property of this complainant has been taken and is sought to be taken by the defendant corporation for the uses of itself and the general public without any compensation in fact to the complainant therefor, but at an actual expense and outlay in addition — that is to say, the corporation purposes by assessment to make this complainant not only pay for her own property taken for the benefit of the defendant, but also to pay the costs of so taking it without compensation.
*302 “Wherefore she invokes her remedy given her by statute by injunction. She avers that the said seizure and taking of her said property and the pretended condemnation of the same and assessment of the same with added costs back upon her own property for the-benefit of the defendant corporation and the general public is a seizure of her property without compensation; not only that, but at costs to her besides, in that the defendants have undertaken to make her pay for the taking of her property without a compensation in addition to the value of the property, and that she is without remedy and powerless unless she may have and invoke the equitable interference, as the statute authorizes her, of this honorable court.”
The testimony is equally silent as to the matter of damages and benefits. There is not only no averment, but not even a suggestion, that any other property than that abutting on the proposed improvement, and belonging to plaintiff, is in the slightest degree benefited thereby. Nor is there an averment or a suggestion that her property, thus improved by the opening of a street, has not been raised in value far above the cost of improvement. So that a legislative act charging the cost of an improvement -in laying out a street, (and the same rule obtains if it. was the grading, macadamizing or paving the street,) upon the property abutting thereon, is adjudged not only not conclusive that such abutting property is benefited to the full cost thereof, but further, that it is not even prima faoie evidence thereof, and that before such an assessment can be sustained it must be shown, not simply that the legislative body has fixed the area of the taxing district, but also that, by suitable judicial inquiry, it has been established that such taxing district is benefited to the full amount of the cost of the improvement, and also that no other property is likewise benefited. The suggestion that such an assessment be declared void because the rule of assessment is erroneous, implies that it is prima facie erroneous to cast upon property abutting upon an improvement the cost thereof; that a legislative act casting upon such abutting property the full cost of an improvement, is prima faoie void;
In this case no tender was made of any sum, no offer to pay the amount properly chargeable for benefits, there was no allegation or testimony that the legislative judgment as to the area benefited, or the amount of the benefit was incorrect, or that other property was also benefited, and the opinion goes to the extent of holding that the legislative determination is not only not conclusive but also is not even prima fade sufficient, and that in all cases there must be a judicial inquiry as to the area in'fact benefited. We have often held the contrary, and I think should adhere to those oft-repeated rulings.
