$354

over special benefits will, to the extent of such | 876, which was the case of charges upon land excess, be a taking of private property for to meet the cost of certain sewerage work public use without compensation.' done under municipal authority, Mr. Justice Does the court intend in this case to over-Knowlton, delivering the unanimous judg rule the principles announced in Norwood v. ment of the court, said: "If we treat the Baker? Does it intend to reject as unsound determination of these charges as a local and the doctrine that "the principle underlying special assessment upon particular estates, special assessments to meet the we have to consider the principles on which cost of public improvements is that the such taxation is founded. It is well estabproperty upon which they are imposed is lished that taxation of this kind is permissipeculiarly benefited, and therefore the ble under the Constitution of this commonowners do not, in fact, pay anything in ex- wealth and under the Constitution of the cess of what they receive by reason of such United States, only when founded upon speimprovement?" Is it the purpose of the cial and peculiar benefits to the property court, in this case, to overrule the doctrine from the expenditure on account of which that taxation of abutting property to meet the tax is laid, and then only to an amount the cost of a public improvement-such tax- not exceeding such special and peculiar ation being for an amount in substantial benefits. The fact that the charges excess of the special benefits received-"will, to be determined are for the construction, to the extent of such excess, be a taking of maintenance, and operation of the sewerage private property for public use without com- works of the whole city, gives some force to pensation?" The opinion of the majority is the possibility of a construction which inso worded that I am not able to answer these cludes all benefits; but whether this conquestions with absolute confidence. It is struction should be adopted or not, the difficult to tell just how far the court in-charges may be determined on any grounds tends to go. But I am quite sure, from the which the street commissioners deem just intimations contained in the opinion, that and proper, and may not be founded in any it will be cited by some as resting upon the great degree, if at all, upon special and pecu. broad ground that a legislative determina-liar benefits, and may in any particular case tion as to the extent to which land abutting on a public street may be specially assessed for the cost of paving such street is conclusive upon the owner, and that he will not be heard, in a judicial tribunal or elsewhere, to complain even if, under the rule prescribed, the cost is in substantial excess of any special benefits accruing to his property, or even if such cost equals or exceeds the value of the property specially taxed. The reasons which, in my judgment, condemn such a doctrine as inconsistent with the Constitution, are set forth in Norwood v. Baker, and need not be repeated. But I may add a reference to some recent adjudications.

largely exceed such benefits. This fact in itself is enough to bring the statute within the prohibition of the Constitution, inasmuch as it purports to authorize a taking of property to pay a charge which is not founded on a special benefit or equivalent received by the estate or its owner. Such a taking would be without due process of law," citing Norwood v. Baker, 172 U. S. 269, 43 L. ed. 443, 19 Sup. Ct. Rep. 187; State, New Brunswick Rubber Co., Prosecutor, v. New Brunswick Street & Sewer Comrs. 38 N. J. L. 190, 20 Am. Rep. 380; Barnes v. Dyer, 56 Vt. 469, and Thomas v. Gain, 35 Mich. 155, 24 Am. Rep. 535. In Dexter v. Boston, 176 Mass. In Sears v. Boston, 173 Mass. 71, 78, 43 247, 251, 252, 57 N. E. 379, 380, the court L. R. A. S34, 837, 53 N. E. 138, 139, which said: "It is now settled law in this court, was the case of a special assessment to meet as it is in the Supreme Court of the United the cost of watering streets, the court said: States, and in many other courts, that after "It is now established by the highest judicial the construction of a public improvement a authority that such assessments cannot be local assessment for the cost of it cannot be so laid upon any estate as to be in substan- laid upon real estate in substantial excess tial excess of the benefit received. The case of the benefit received by the property. of Norwood v. Baker, 172 U. S. 269, 43 L. Such assessments must be founded on the ed. 443, 19 Sup. Ct. Rep. 187, contains an benefits, and be proportional to the benefits." elaborate discussion of the subject, with a To the same effect are Hutcheson v. Storrie, citation of authorities from many of the 92 Tex. 688, 45 L. R. A. 289, 51 S. W. 848; states, and holds that a local assessment for Adams v. Shelbyville, 154 Ind. 467, 49 L an amount in substantial excess of the bene-R. A. 797, 57 N. E. 114; McKee v. Pendleton, fit received is in violation of the 14th Amendment to the Constitution of the United States, inasmuch as it would deprive one of his property without compensation, and so without due process of law. The authority of this case is controlling in all state courts, The court, after referring to the declaraand if it were not, it is in accordance with tion of the supreme court of Missouri to the sound principles, and with the great weight effect that the 14th Amendment was not apof authority in other courts. The principles plicable to this case, proceeds, in order to which have often been stated by this court"prevent confusion and relieve from repetilead to the same result. Boston v. Boston tion," to refer to some of the cases arising & A. R. Co. 170 Mass. 95, 101, 49 N. E. under that and the 5th Amendment. In the 95, and cases cited." In Sears v. Boston same connection the court, referring to the Street Comrs. 173 Mass. 350, 352, 53 N. E. '5th and 14th Amendments, says that "while

154 Ind. 652, 57 N. E. 532; Fay v. Springfield, 94 Fed. Rep. 409; Loeb v. Columbia Twp. 91 Fed. Rep. 37; Charles v. Marion, 98 Fed. Rep. 166; Cowley v. Spokane, 99 Fed. Rep. 840.

court in this case, a recognition of the prin- | when it said that the plaintiff, who quesciple that the 14th Amendment does apply tioned the validity of the statute, contended to cases of taxation under the laws of a "that the statute of 1881 was unconstitutionstate. And it is to be observed that the al and void because it was an attempt by the court in McMillen v. Anderson takes care to legislature to validate a void assessment show that under the laws of Louisiana the without giving the owners of the lands astaxpayer was given an opportunity to be sessed an opportunity to be heard upon the heard in respect of the validity of the tax whole amount of the assessment." The imposed upon him. court held that the statute itself was, under the circumstances of that case, all the notice and hearing the owners of the lands required. There was no occasion for any general dec laration as to the powers of the legislature which would cover cases of void assessments validated by legislative enactment where the amount assessed upon particular property was in substantial excess of special benefits accruing to it. Referring to Spencer v. Merchant, this court said in Norwood v. Baker: "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 lev ied upon all of them. This appears from both the opinion and the dissenting opinion in that case."

Among the cases cited in support of the conclusions announced by the majority are: Mattingly v. District of Columbia, 97 U. S. 687, 692, 24 L. ed. 1098, 1100; Kelly v. Pittsburgh, 104 U. S. 78, 26 L. ed. 658; Spencer v. Merchant, 125 U. S. 345, 31 L. ed. 763, 8 Sup. Ct. Rep. 921; Paulsen v. Portland, 149 Ú. S. 30, 40, 37 L. ed. 637, 641, 13 Sup. Ct. Rep. 750; Bauman v. Ross, 167 U. S. 548, 42 L. ed. 270, 17 Sup. Ct. Rep. 966; and Parsons v. District of Columbia, 170 U. S. 45, 42 L. ed. 943, 18 Sup. Ct. Rep. 521.

It seems to me quite clear that the particular question before us was not involved or determined in any of those cases.

In Mattingly v. District of Columbia it was said that the legislature may direct special assessments for special road or street improvements "to be made in proportion to the frontage, area, or market value of the In Paulsen v. Portland the only point adadjoining property, at its discretion." But judged was that notice, by publication in a that falls far short of deciding that an as- newspaper, of the time and place of the meetsessment in proportion to frontage could be ing of viewers appointed to estimate the prosustained if it exceeded the value of the portionate share which each piece should property or was for an amount in excess of bear of the amount to be assessed upon the the special benefits accruing to the property property in a sewer district for the cost of assessed. Besides, no question was made in a sewer, was sufficient "to bring the proceed.* that case as to the cost of the work exceed-ings within due process of law." The court ing special benefits.

in that case took care to say that it did not question the proposition that "notice to the taxpayer in some form must be given before an assessment for the construction of a sewer can be sustained, as in any other demand upon the individual for a portion of his prop erty." That case cannot be held to support the views of the supreme court of Missouri, for that court in this case held in substance that, under legislative authority, property fronting on a public street could all be taken to pay the cost of improving the street, leaving nothing whatever to the owner, and that, too, without any notice and without any right in the owner, in any form, to show that the amount required to be paid exceed ed, not only any special benefits accruing to the property, but even the value of the property assessed.

In Kelly v. Pittsburgh the only point involved or adjudged was that the 14th Amendment did not stand in the way of the legislature of a state extending the limits of a city or township so as to include lands fit for agricultural use only, and make them subject to taxation for the local purposes of the extended city or town, although the owners did not enjoy the advantages of the municipal government to the same extent as those who resided in the thickly settled parts of the city or town. It was not a case in which the property of particular persons was specially assessed by a rule not applicable to all other assessments. On the contrary it was admitted in that case that the methods adopted to ascertain the value for purposes of local taxation of the lands there in question were such as were usually em- In Bauman v. Ross we had a case in which ployed, and that the manner of apportioning a special assessment was made, under an act and collecting the tax was not unusual or of Congress, imposing upon the lands benematerially different from that in force in all fited one half of the amount awarded by the communities where land was subject to taxa-court as damages for each highway or restion. It was held that it was not the func-ervation, or part thereof, condemned and estion of the court to correct mere errors in tablished under the act. The assessment the valuation of lands for purposes of taxation.

In Spencer v. Merchant no question arose as to an excess of the cost of the improvement there in question over special benefits. The question before the court was as to the constitutionality of a statute validating what had been judicially determined to be a void assessment. This court so declared

was directed to be "charged upon the lands benefited by the laying out and opening of such highway or reservation or part thereof," and the jury was directed "to ascertain and determine what property is thereby benefited." The same act directed the jury to assess against each parcel which it found to be so benefited its proportional part of the sum assessed, provided that as to any tract,

*361

part of which only had been taken, due al-ever. The question is legislative, and like lowance should be made for the amount, if all legislative questions, may be decided erany, "which shall have been deducted from roneously; but it is reasonable to expect the value of the part taken on account of that, with such latitude of choice, the tax the benefit to the remainder of the tract." will be more just and equal than it would In such a case the owner of the property be-be were the legislature required to levy it by ing given full right to be heard before an au- one inflexible and arbitrary rule." Cooley, thorized tribunal upon the question of spe- Taxn. 447, chap. 20, § 5; Id. 2d ed. €37, § 5. cial benefits, no question could arise such as is presented in the present one.

But in the same chapter from which the above extract was made the author discusses fully the underlying principles of special assessments, saying: "Special assessments are a peculiar species of taxation, standing apart from the general burdens imposed for state and municipal purposes, and governed by principles that do not apply universally. The general levy of taxes is understood to exact contributions in return for the general benefits of government, and it promises nothing to the persons taxed beyond what may be anticipated from an administration of the laws for individual protection and the general public good. Special assessments, on the other hand, are made upon the assumption that a portion of the community is to be specially and peculiarly benefited in the enhancement of the value of property peculiarly situated as regards a contemplated expenditure of public funds; and, in addition to the general levy, they demand that special contributions, in consideration of the special benefit, shall be made by the person receiving it. The justice of demanding the special contribution is supposed to be evident in the fact that the persons who are to make it, while they are made to bear the cost of a public work, are at the same time to suffer no pecuniary loss thereby, their property being increased in value by the ex

In Parsons v. District of Columbia the question was as to the validity of an act of Congress which provided for establishing, in this District, "a comprehensive system regulating the supply of water and the erection and maintenance of reservoirs and of water mains." It was provided that assessments levied for water mains should be at the rate of $1.25 per linear foot against all lots or land abutting upon the street, road, or alley in which a water main is laid. This court, among other things, said: "Another complaint urged is that the assessment exceeded the actual cost of the work, and this is supposed to be shown by the fact that the expense of putting down this particular main was less than the amount raised by the assessment. But this objection overlooks 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 the pipes, but to raise a fund to keep the system in efficient repair. The moneys raised beyond the expense of laying the pipe are not paid into the general treasury of the District, but are set aside to maintain and repair the system." But the court took care to add, "and there is no such disproportion between the amount assessed and the actual cost as to show any abuse of legis-penditure to an amount at least equal to the lative power." The words thus added are significant, and if they had not been added the opinion would not have passed without dissent. The words referred to justify the conclusion that if there had been an abuse of legislative power; if the amount assessed had been substantially or materially in excess of the cost of the work or of the value of the property assessed or of the special benefits received, the owners of the abutting property might justly have complained of a violation of their constitutional rights. The court, in its opinion, quotes certain The court overlooked other passages in the passages from Cooley's Treatise on Taxation, same chapter of Cooley's Treatise on Taxain which the author refers to the different tion. Referring to the rule of assessment by modes in which the cost of local public work the front foot upon property abutting on a may be met; namely: (1) a general tax to local improvement, where no taxing district cover the major part of the cost, the smaller has been established over which the cost portion to be levied upon the estates special- could be distributed by some standard of ly benefited; (2) a tax on the land spe- benefit, actual or presumptive, Cooley says: cially benefited to meet the major part of "But it has been denied, on what seem the the cost, the smaller part to be paid by the most conclusive grounds, that this is per general public; and (3) a tax for the whole inissible. It is not legitimate taxation, becost on the lands in the immediate vicinity cause it is lacking in one of its indispensable of the work. In respect of each of these elements. It considers each lot by itself, commethods the court cites these words of Cool- pelling each to bear the burden of the imey: "In a constitutional point of view, eith-provement in front of it, without reference to er of these methods is admissible, and one may sometimes be just and another at other times. In other cases it may be deemed A reasonable to make the whole cost a general charge, and levy no special assessment what

sum they are required to pay. This is the idea that underlies all these levies." Cooley, Taxn. 416, chap. 20, § 1; Id. 2d ed. 606, § 1. To this we may add the declaration of the author when, speaking for the supreme court of Michigan in Thomas v. Gavin, 35 Mich. 155, 162, 24 Am. Rep. 535, 538, he said: "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 publio

uses."

any contribution to be made to the improvement by any other property, and it is consequently without any apportionment. From accidental circumstances the major part of the cost of an important public work

364

may be expended in front of a single to the extent of special benefits it is every lot; those circumstances not at all con- where admitted that the legislature may au tributing to make the improvement more thorize local taxes or assessments to be made." valuable to the lot thus specially bur- Again: "When not restrained by the Condened, perhaps even having the opposite stitution of the particular state, the legisconsequence. But whatever might be the re- lature has a discretion commensurate with sult in particular cases, the fatal vice in the the broad domain of legislative power, in system is that it provides for no taxing dis-making provisions for ascertaining what tricts whatever. It is as arbitrary in prin- property is specially benefited and how the ciple, and would sometimes be as unequal in benefits shall be apportioned. This proposi operation, as a regulation that the town tion, as stated, is nowhere denied; but the from which a state officer chanced to be cho- adjudged cases do not agree upon the exsen should pay his salary, or that that locali- tent of legislative power. The courts which ty in which the standing army or any por- have followed the doctrine of the leading tion of it should be stationed for the time case in New York (People ex rel. Griffin v. being should be charged with its support. Brooklyn, 4 N. Y. 419, 55 Am. Dec. 266), have If one is legitimate taxation the other would asserted that the authority of the legislature be. In sidewalk cases a regulation of the in this regard is quite without limits; but kind has been held admissible, but it has the decided tendency of the later decisions, been justified as a regulation of police, and including those of the courts of New Jersey, is not supported on the taxing power exclu- Michigan, and Pennsylvania, is to hold that sively. As has been well said, to compel in- the legislative power is not unlimited, and dividuals to contribute money or property that these assessments must be apportioned to the use of the public, without reference to by some rule capable of producing reasonaany common ratio, and without requiring ble equality, and that provisions of such a the sum paid by one piece or kind of prop-nature as to make it legally impossible that erty, or by one person, to bear any relation the burden can be apportioned with proxiwhatever to that paid by another, is to lay a forced contribution, not a tax, within the sense of those terms as applied to the exercise of powers by any enlightened or responsible government." Cooley, Taxn. 453, chap. 20, § 53; Id. 2d ed. 646, 647.

The author also says what I do not find in the opinion of the court in this case: "There can be no justification for any proceeding which charges the land with an assessment greater than the benefits; it is a plain case of appropriating private property to public uses without compensation." Cooley, Taxn. 2d ed. 661.

100

mate equality are arbitrary exactions and not an exercise of legislative authority." 2 Dill. Mun. Corp. 4th ed. p. 934, § 761. Further, the author says: "Whether it is competent for the legislature to declare that no part of the expense of a local improvement of a public nature shall be borne by a gen eral tax, and that the whole of it shall be assessed upon the abutting property and other property in the vicinity of the improvements, thus for itself conclusively determining, not only that such property is specially benefited, but that it is thus benefited to the extent of the cost of the improveThe court also cites from Dillon's Treatisement, and then to provide for the apportionon Municipal Corporations certain passages ment of the amount by an estimate to be to the effect that whether the expense of made by designated boards or officers, or by making local improvements "shall be paid frontage or superficial area, is a question upout of the general treasury, or be assessed on which the courts are not agreed. Almost upon the abutting property or other prop-all of the earlier cases asserted that the legerty specially benefited, and if in the latter islative discretion in the apportionment of mode, whether the assessment shall be upon public burdens extended this far, and such all property found to be benefited, or alone legislation is still upheld in most of the upon the abutters, according to frontage or states. But since the period when express according to the area of their lots, is, accord-provisions have been made in many of the ing to the present weight of authority, consid-state constitutions requiring uniformity and ered to be a question of legislative expedi- equality of taxation, several courts of great ency." 2 Dill. Mun. Corp. 4th ed. p. 912, § respectability, either by force of this re752. These views need not be controverted quirement or in the spirit of it, and perceiv in this case, and of their soundness I have ing that special benefits actually received by no doubt when we are ascertaining the gen- each parcel of contributing property was eral rule to be applied in the particular the only principle upon which such assessclasses of cases referred to by the author.ments can justly rest, and that any other But the above quotation from Dillon by no rule is unequal, oppressive, and arbitrary, means indicates his opinion as to the appli- have denied the unlimited scope of legislative cation of the general rule announced by him. discretion and power, and asserted what must In the same chapter from which the court upon principle be regarded as the just and quotes I find the following principles an- reasonable doctrine, that the cost of a local nounced by the author as deduced from an improvement can be assessed upon particular extended reference to numerous adjudged property only to the extent that it is special cases: "Special benefits to the property as-ly and peculiarly benefited; and since the sessed; 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

excess beyond that is a benefit to the municipality at large, it must be borne by the gen eral treasury." 2 Dill. Mun. Corp. 4th ed. p. 935, § 761.