in this respect, comes within the principle upon which this court held that the legislature of Alabama might charge the county of Mobile with the whole cost of an extensive improvement of Mobile harbor; and, speaking by Mr. Justice Field, said: "The objection urged is that it fastens upon one county the expense of an improvement for the benefit of the whole State. Assuming this to be so, it is not an objection which destroys its validity. When any public work is authorized, it rests with the legislature, unless constrained by constitutional provisions, to determine in what manner the means to defray its cost shall be raised. It may apportion the burden ratably among all the counties or other particular subdivisions of the state, or lay the greater share or the whole upon that county or portion of the state specially and immediately benefited by the expenditure.'

27 10

10 (iting Mobile County v. Kimball, 102 U. S. 691; 26 L. ed. 238. The opinion continues:

"The legislature, in the exercise of the right of taxation, has the authority to direct the whole, or such part as it may prescribe, of the expense of a public improvement, such as the establishing, the widening, the grading, or the repair of a street, to be assessed upon the owners of the land benefited thereby. Davidson v. New Orleans, 96 U. S. 97; 24 L. ed. C16; Hagar v. Reclamation Dist. No. 108, 111 U. S. 701; 4 Sup. Ct. Rep. C63; 28 L. ed. 569; Spencer v. Merchant, 125 U. S. 345; 8 Sup. Ct. Rep. 921; 31 L. ed. 763; Walston v. Nevin, 128 U. S. 578; 9 Sup. Ct. Rep. 192; 32 L. ed. 544; Lent v. Tillson, 140 U. S. 316; 11 Sup. Ct. Rep. 825; 35 L. ed. 419; Illinois C. R. Co. v. Decatur, 147 U. S. 190; 13 Sup. Ct. Rep. 293; 37 L. ed. 132; Paulsen v. Portland, 149 U. S. 30; 13 Sup. Ct. Rep. 750; 37 L. ed. 637. This authority has been repeatedly exercised in the District of Columbia by Congress, with the sanction of this court. Willard v. Presbury, 14 Wall. €76; 20 L. ed. 719; Mattingly v. District of Columbia, 97 U. S. 687; 24 L. ed. 1099; Shoemaker v. United States, 147 U. S. 282; 13 Sup. Ct. Rep. 361; 37 L. ed. 170.

"The class of lands to be assessed for the purpose may be either determined by the legislature itself, by defining a territorial district, or by other desig nation; or it may be left by the legislature to the determination of commissioners, and be made to consist of such lands, and such only, as the commissioners shall decide to be benefited. Spencer v. Merchant, and Shoemaker v. United States, above cited; Fallbrook Irrig. Dist. v. Bradley, 164 U. S. 112; 17 Sup. Ct. Rep. 56: 41 L. ed. 369; Ulman v. Baltimore, 165 U. S. 719; 17 Sup. Ct. Rep. 1001; 41 L. ed. 1184. See also the very able opinion of the court of appeals of New York, delivered by Judge Ruggles, in People v. Brooklyn, 4 N. Y. 419.

§ 526. Special Assessments in Excess of Benefits.

It has been seen that the justification for a special assessment is the special benefits received. Logically and justly, it would seem, therefore, that such special assessments should in no case be permitted to exceed, to any substantial extent at least, the benefits which justify them. In fact, however, until recently at least, the rule appears to have been that, so long as they are apportioned according to benefits, they are not necessarily measured in absolute amount by such benefits. Thus, for example, in Bauman v. Ross," cited above, in which was involved a law which provided that one-half of the amount measured as damages for the taking of the lands needed for the improvement contemplated should be assessed upon the lands benefited, no proviso appeared to meet cases in which the assessments thus provided for might exceed the benefits conferred; yet the court declared: "This fixing of the gross sum to be assessed was within the authority of Congress."

§ 527. Doctrine of Norwood v. Baker.

In 1898, however, was decided the case of Norwood v. Baker, 12 which seemed to state a new doctrine. The facts in this case were

The rule of apportionment among the parcels of land benefited also rests within the discretion of the legislature, and may be directed to be in proportion to the position, the frontage, the area or the market value of the lands, or in proportion to the benefits as estimated by commissioners. Mattingly v. District of Columbia; Spencer v. Merchant; Watson v. Nevin; Shoemaker v. United States; Paulsen v. Portland, and Fallbrook Irrig. Dist. v. Bradley, above cited.

"If the legislature, in taxing lands benefited by a highway, or other public improvement, makes provision for notice, by publication or otherwise, to each owner of land, and for hearing him, at some stage of the proceedings, upon the question what proportion of the tax shall be assessed upon his land, his property is not taken without due process of law. Davidson v. New Orleans; Spencer v. Merchant; Watson v. Nevin; Lent v. Tillson; Paulsen v. Portland, and Fallbrook Irrig. Dist. v. Bradley, above cited.

"The whole sum directed by § 15 to be assessed upon lands benefited is onehalf of the amount awarded by said court as damages for each highway or reservation, or part thereof, condemned and established under this act.' This fixing of the gross sum to be assessed was clearly within the authority of Congress, according to the above cases."

11 167 U. S. 548; 17 Sup. Ct. Rep. 966; 42 L. ed. 270. 12 172 U. S. 269; 19 Sup. Ct. Rep. 187; 43 L. ed. 443.

these: By an ordinance of the village of Norwood a street was cut through the land of a Mrs. Baker, and a special assessment levied upon her equaling in amount not simply the value of the land taken, but, in addition thereto, the costs and expenses connected with the condemnation proceedings. Only the lands of Mrs. Baker were affected by the ordinance. The validity of this assessment was contested, not on the ground that it would in fact impose a tax in excess of the benefit received, but that the amount of the assessment to be paid, namely, a sum equal to the amount paid for the land taken for the street, together with the cost of the condemnation proceedings, was fixed without any relation to the benefits to be received. It would seem that to this contention it might have been replied that inasmuch as but one piece of land was concerned it was not possible to lay down a rule of apportionment. The court, however, went beyond this and held, apparently, that in all cases a special assessment is prima facie invalid which casts upon abutting property the cost of an improvement, without reference to the benefits received. After admitting that the principle is well established, that abutting owners may be subjected to special assessments to meet the expense of opening public highways in front of their property, the majority of the court in their opinion say: "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 what they receive by reason of such improvement. But the guaranties for the protection of private property would be seriously impaired, if it were estab lished as a rule of constitutional law that the imposition by the legislature upon particular private property of the entire cost of a public improvement, irrespective of any peculiar benefits accruing to the owner from such improvement, could not be questioned by him in the courts of the country. It is one thing for the legis

lature to prescribe it as a general rule that property abutting on a street opened by the public shall be deemed to have been specially benefited by such improvement, and, therefore, should specially contribute to the cost incurred by the public. It is quite a different thing to lay it down as an absolute rule that such property, whether it is in fact benefited or not by the opening of the street, may be assessed by the front foot for a fixed sum, representing the whole cost of the improvement, and without any right in the property-owner to show, when an assessment of that kind is made, or is about to be made, that the sum so fixed is in excess of the benefits received.

"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."

The reasoning of the court, as shown in the quoted paragraphs, is not perfectly clear, but the argument would seem to be that inasmuch as the assessments may never constitutionally exceed the amount of the benefits, therefore the assessment in question was illegal because no opportunity was provided for showing that in fact the benefits were exceeded, or that if this were shown, no provision was made for the reduction of the assessment.13

13 In a dissenting opinion concurred in by three justices, after citing authorities as to the discretionary power vested in a legislature to establish special taxing districts, it is said:

"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 prop

§ 528. Norwood v. Baker Explained and Limited by Later

Cases.

The decision in the case of Norwood v. Baker was for a time extraordinarily disconcerting. For if, as the case seemed to hold, a special assessment according to some uniform rule of assessment, such as the front-foot rule, could not be applied until it had been determined, after a hearing, that it would not impose upon any particular piece of property a tax in substantial excess of the erty 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, so far as the record discloses, either by the bill or her testimony, her property may have been enhanced in value ten times the cost of the condemnation.

"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 aver ment 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 facie 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