Village of Norwood v. Baker/Dissent Brewer

Mr. Justice BREWER, dissenting.

I dissent from the opinion and judgment of the court in this case, and for these reasons:

1. 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. City of Cleveland v. Wick, 18 Ohio St. 304.

2. Equally true is this under the constitution of the United States. Shoemaker v. U.S., 147 U.S. 282, 302, 13 Sup. Ct. 361; Bauman v. Ross, 167 U.S. 548, 17 Sup. Ct. 966.

3. The cost of this improvement was settled in judicial proceedings to which the defendant in error was a party, and, having received the amount of the award, she is estopped to deny that the cost was properly ascertained.

4. 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, 3 N. E. 683, 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 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 power, its decision must, of course, be final.'

Same Case, 125 U.S. 345, 355, 8 Sup. Ct. 926, 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 Co. v. Kimball, 102 U.S. 691, 703, 704; Hagar v. Reclamation Dist., 111 U.S. 701, 4 Sup. Ct. 663.'

Williams v. Eggleston, 170 U.S. 304, 311, 18 Sup. Ct. 619, 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, 18 Sup. Ct. 525, in which this court sustained an act of congress in respect to the District of Columbia, not only determining the area benefited by a public improvement, to wit, the ground fronting on the street in which the improvement was made, but also assessing the cost of such improvement, at a specified rate, to wit, $1.25 per front foot, on such area.

In this case we quoted approvingly from Dillon on Municipal Corporations (4th Ed. vol. 2, § 752), in reference to this matter of assessment:

'Whether the expense of making such improvements shall be paid out of the general treasury, or be assessed upon the abutting property or other property specially benefited, and, if in the latter mode, whether the assessment shall be upon all property found to be benefited, or alone upon the abutters, according to frontage or according to the area of their lots, is, according to the present weight of authority, considered to be a question of legislative expediency.'

In the case at bar the question of apportionment is not important, because the party charged owned all of the land within the area described,-all of the land abutting upon the improvement. The rule would be the same if 100 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.

Again, it is a maxim in equity that he who seeks equity must do equity, and, as applied to proceedings to restrain the collection of taxes, that the party invoking the aid of a court of equity must allege and prove payment, or an offer to pay such portion of the taxes or assessment as is properly chargeable upon the property. This proposition has been iterated and reiterated in many cases. In State Railroad Tax Cases, 92 U.S. 575, 617, it was laid down 'as a rule to govern the courts of the United States in their action in such cases.' Further, the mere fact that tax proceedings are illegal has never been held sufficient to justify relief in equity. These propositions have been uniformly and consistently followed See, among late cases, Railroad Co. v. Clark, 153 U.S. 252, 272, 14 Sup. Ct. 809. There is nothing in Cummings v. Bank, 101 U.S. 153, in conflict with the foregoing propositions. In that case it appeared that the local assessors of Lucas county, in which the bank was situated, agreed upon a rule of assessment by which money or invested capital was assessed at six-tenths of its value, while the shares of national banks were assessed at their full cash value. It was held that an unequal rule of assessment having been adopted by the assessors, and that rule 'applied, not solely to one individual, but to a large class of individuals or corporations,' equity might properly interfere. But in that case the bank had paid to the county treasurer the tax which it ought to have paid, as shown by the closing words of the opinion of the court: 'The complainant having paid to defendant, or into the circuit court for his use, the tax which was its true share of the public burden, the decree of the circuit court enjoining the collection of the remainder is affirmed.' If that creates an exception to the general equity rules in respect to tax proceedings, I am unable to perceive it.

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 § 0 times the cost of the condemnation. Neither is it charged that any other property was benefited in the slightest degree. It is well to quote all that is said in the bill in this respect:

'Your 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 Ivanhoe 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 $2,218.58, payable in installments, with interest at six per cent.; the first installment being $354.97, and the last or tenth installment $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 asses upon the complainant's adjacent property, 300 feet upon each side, the said $2,000, 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.

*    *     * '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 paying 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 (an 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 facie void; that, being prima facie void, the owner of any property so abutting on the improvement may obtain a decree of a court of equity canceling in toto the assessment, without denying that his property is benefited by the improvement, or paying, or offering to pay, or expressing a willingness to pay, any sum which may be a legitimate charge upon the property for the value of the benefit to it by such improvement.

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 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 facie 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.

Mr. Justice GRAY and Mr. Justice SHIRAS also dissent.