City of Indianapolis v. Holt

*242Dissenting- Opinion.

Hadley, J.

— I find, myself unable to agree with, the majority in this case.

It. was unanimously held by this court in Adams v. City of Shelbyville, 154 Ind. 467, that under the doctrine of the federal Supreme Court in Norwood v. Baker, 172 U. S, 269, 19 Sup. Ct. 187, 43 L. ed. 443, among the principles applicable to assessments for local improvements are the following: “Each parcel of contributing property may be assessed only to the extent that it actually receives special benefits; the taxing district as a whole may be assessed only to the extent of the sum of the special benefits actually received by the several parcels of contributing property; the improvement so far as its cost exceeds the special benefits resulting to the several parcels of property in the taxing district, is a benefit to the municipality at large, and such excess must be borne by the general treasury; property owners affected by an improvement, within a taxing district, are entitled to a hearing on the question of special benefits.”

With much deference for the views of the majority, I am, after careful consideration, unable to reach the conviction that the Indianapolis charter is constructed upon a recognition of the foregoing principles. We are agreed that if an exaction for local improvements shall exceed the special benefits, to the extent of the excess, it is a taking of private property for public use without just compensation. We are also agreed that if the Indianapolis charter may be so construed as to give to assessing officers the power to grant a hearing upon the question of benefits, and upon such hearing the power to make or adjust assessments upon the basis of special benefits, then the law meets the requirements of the Constitution. The point of divergence is upon the true meaning of the statute, and involves two propositions: '(1) Does it require the assessment of the total cost of an improvement upon the frontage equally per running *243foot without reference to the question of special benefits, and (2) does it give the property owners affected due process of law ?

I submit that the first of these propositions should be answered in the affirmative, and the second in the negative. It should be borne in mind that prior to the decision in Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. ed. 443, December 12, 1898, and at the time the city charter was enacted, for more than forty years, it had been accepted as the law in this State, and in most states of the Dnion, as well as by the federal courts, that it was a proper exercise of legislative discretion to declare as matter of law that the special benefits accruing to property within a particular district by a local improvement was equal to the cost. And while the right to exact the total cost of an improvement from the abutters was uniformly made to rest upon special benefits received, yet the constitutional right of the legislature arbitrarily to declare the equality of burden and benefit had never been challenged, as it appears, in this State as being a denial of due process of law or as a talcing of property without compensation, prior to the adoption of the charter. And excepting the act of 1889, commonly known as the Barrett law, which expressly provides for a hearing of persons aggrieved by equal frontage assessments, and the right of the common council to alter and change the frontage apportionment before final action upon the assessments, and except further the act of 1893 (Acts 1893, p. 202), relating to cities of 35,000 (Fort Wayne), which, possibly, by section 82, p. 245, provides a sufficient hearing, the legislation of this State has all been framed since 1852 in accordance with this view of the law, and street and alley improvements prosecuted thereunder. See R. S. 1852, p. 217, Acts 1857, p. 53, Acts 1865 (S. S.) p. 29, Acts 1867, p. 66, Acts 1893, with respect to cities of not less than 50,000 nor more than 100,000 (Evansville), p. 65.

*244So when the charter was adopted the arbitrary front-foot rule had been maintained in this State for many years under the sanction of the Constitution, State and federal, so far as those instruments had then been interpreted by the courts of last resort, and the constitutional objections that have since arisen could not then have influenced the lawmakers. Snyder v. Town of Rockport, 6 Ind. 237; City of Indianapolis v. Imberry, 17 Ind. 175; Goodrich v. Turnpike Co., 26 Ind. 119; Bright v. McCullough, 27 Ind. 223; Palmer v. Stumph, 29 Ind. 329; Law v. Turnpike Co., 30 Ind. 77.

The ruling in Adams v. City of Shelbyville, 154 Ind. 467, lends no support to the Indianapolis charter in respect to the questions here involved. The charter has no such foundation to stand upon as the Barrett law. By the latter statute the common council is expressly authorized to pay any part of the cost of a street improvement from the general treasury. By the latter statute it is also expressly provided that the cost of an improvement shall be estimated by the front-foot rule; that, preparatory to the assessment by the common council, the city engineer shall apportion the cost per front foot and report his act to the council, and the council shall thereupon, after the publication of notice giving contents of report and fixing a time and place for the hearing of grievances, and having considered all grievances, approve such report, or change and alter the same as made on the frontage rule, and finally determine and fix the amount of assessment that each abutter shall pay.

These provisions of the Barrett law, which underlie the decision in Adams v. City of Shelbyville, supra, are wholly omitted from the charter, both in terms and principle. It is a familiar rule that the power to tax can be conferred only by statute and exercised only in the mode appointed therein.

Section 74 of the charter act (as amended Acts 1899, p. 558), provides: “If said board shall finally order such *245improvement, * * * and let the contract for the same, the cost of any street or alley improvement shall be estimated according to the whole length of the street or alley * * * per running foot, and the total cost thereof * * * shall be apportioned upon the lands or lots abutting thereon * * *. Such city shall be liable to the contractor for the contract price of such improvement to the extent of the moneys actually received by such city from the assessments for such improvement * * * and the owners of property bordering on such street or alley shall be liable to the city for their proportion of the cost, * * * in the ratio of the front line of their land or lots, whether platted or not, owned by them, to the whole cost of the improvement.”

There is nowhere in the law any shadow of authority for the board of public works, the only body having authority to make assessments, to change the method or basis of distributing the cost of an improvement from the frontage rule. With respect to the assessments, the board has no discretion, no right of judgment. The language conferring the power to make the assessments specifically directs how the power shall be exercised. The limit of their power and duty is to carry out the mandate of the legislature and to “apportion the total cost of the improvement upon the lands and lots abutting thereon”, and having determined the cost of an improvement, by making a contract therefor, and ascertained, by measurements and mathematical calculations, the pro rata share of each abutter, to write down the several amounts as final assessments, showing in the roll thus made a description of each piece of property, the name of the owner and total pro rata assesssment against each lot. When the assessment roll is thus completed the department of works shall prepare and deliver a duplicate thereof to the department of finance, and the duty and authority of the board of works in relation to the assessments is at an end. When the work is completed and approved by the *246board, the department of .finance shall deliver the duplicate assessment roll to the city treasurer for collection. It is clear that no city officer or department has any right to change the assessments as fixed by the arbitrary, definite rule of the statute which excludes all consideration of the question of benefits.

It also seems unreasonable that the legislature should confer upon the city authority to improve streets and provide the necessary revenue by special assessments, and at the same time deny the city officers the power to make valid assessments. And this is precisely what is done if the city officers are confined to the definite, fixed rule, and the court when it comes to enforce the assessment has -power to overthrow it because not made on a legal basis. It places the legislature in the awkward position of requiring the assessing officers, in making the assessments and in providing a fund for payment of the contractor, to follow one rule, which excludes the consideration of benefits, and the court in enforcing the assessments to follow .an entirely different one, which includes the consideration of benefits. The situation the court thus finds itself in, in reviewing the assessments, is truly unique. If it finds that the assessing officers have made the assessments in the manner required of them by the law, it must then hold the assessments invalid, not because the assessing officers have violated the law, but because they have not violated it.

Another reason why I believe the lawmakers intended that the assessments, as apportioned by the board of works under the rule prescribed, should constitute an incontestable charge against the property is the absence of any provision for the payment -of a deficit in the assessments to meet the contract price when they have been adjusted to the basis of actual benefits. The total assessments authorized by the law in any case are limited to the amount of the contract price plus incidental expenses. This limitation obviously purposes the raising of only enough money to pay *247the contractor and expenses. It is expressly provided that the city shall be liable to the contractor only to the extent of the money collected by it from the assessments, thus constituting the assessment roll the only source of payment for the work; and it seems incredible that the legislature, in providing a system of public improvements, should purposely imperil fair dealing by providing means whereby the contract price of an improvement, after the contract has been faithfully performed, shall .be subject to indefinite reduction by requiring it to be sealed down by the court to the basis of actual special benefits conferred by the improvement upon abutters. Where would such a power lead to ? If the net sum of actual special benefits conferred is to be the ultimate sum realized upon the contract, and these benefits are to be determined upon the testimony of the friends and neighbors of the abutters, what can form the basis upon which the contractor can reckon liis bid ? Manifestly there can be no reliable basis to count upon, and no bidding at a fair price; and such a power, even if it does nor, impair the obligation of contracts, would be clearly against public policy.

Still another reason appears why the legislature did not intend that the court shall adjust-assessments-to the basis of benefits. It is very clear that that body fully understood the scope and meaning of “a hearing” -within the constitutional requirement. In the condemnation of property for the-opening of streets and other city purposes it is provided in §§63 to 69, inclusive, of the charter, -being §§3834 to 3840, inclusive, Burns 1894, that when the board of public works shall determine to make an appropriation of lands, they shall adopt and publish a resolution to that effect, giving therein a description of the property to be taken, a time for hearing of remonstrances, and, after consideration of the remonstrances, it shall confirm, modify, or rescind the qriginal resolution; the same proceeding that is required when it decides upon a street improvement. When final *248action is had upon the resolution, the board is then required to prepare a roll of all property damaged or benefited by the opening of the proposed street, and names of owners, and shall thereupon assess the damages and benefits to each piece of property on said roll. Upon the completion of said assessments the board shall cause a written notice to be served upon the owner of each piece of property, showing the amount of the assessment and naming a place and time, not less than ten days, when the board will hear all persons feeling aggrieved on the question of the amount of the awards and assessments; and if such owner is a non-resident, notice shall be given by publication; and if a minor, the board shall by the proper proceeding procure the appointment of a guardian for such infant, and then serve such notice upon such guardian. And upon the day fixed the board shall hear all remonstrances and shall thereupon sustain or modify such awards and assessments; and any person feeling aggrieved by this final action of the board may within twenty days appeal from the board to the circuit or superior court, and such court shall hear the question of damages and benefits de novo, and confirm, lower, or increase the sum as it may deem just.

Upon completion of the assessment roll in this way the same shall be foi’thwith delivered to the department of finance, and the assessments from that time shall be a lien upon the property, superior to all liens except taxes. The department of finance shall at once prepare a duplicate of the assessment roll and deliver it to the city treasurer “and the duties of the treasurer and the department of finance, in respect thereto, shall be the same as are hereinafter more specifically prescribed with regard to assessments for street improvements.”

By the language just quoted, it is obvious that the legislature had in mind, at the time, the method to be pursued in assessing the cost of a street improvement, a subject that next follows in the statute, and equally obvious from the *249foregoing provisions that it knew not only what is meant by a hearing as to benefits, but was capable of employing apt and suitable language in expressing that meaning. Can it be then that a legislature, feeling it expedient to provide in such elaborate detail for due process of law in respect to the opening of streets, in providing for the improvement of streets, after prescribing a definite and fixed rule for the guidance of assessing officers, a rule from which there can be no departure however apparent it may be to the assessing officers that under the rule the amount of an assessment is in excess of the benefits, should, in awarding due process of law, content itself with a single, isolated clause in a subsequent section, that, in suits to enforce the assessment made in the way commanded, the defendant “may contest the amount of the assessment” ? To say that a hearing as to benefits in street improvement cases is contemplated by the act, as in street opening cases, is to admit the unanswerable question, Why did the legislature deem it proper and necessary so fully to prescribe it in one case, and omit it in the other ?

It is also a familiar rule of construction that, when two inconsistent provisions appear in a statute, that one must stand which is in harmony with the spirit and other provisions of the same act. Here it is imperatively commanded ■ that the total cost of an improvement shall be apportioned upon the frontage by the running foot; and in the same section, authorizing the defendant to contest the amount of his assessment, it is subsequently provided that in such suit the court shall give the plaintiff judgment for the amount of the assessment, principal, interest, and costs. It seems to me that what is meant by the language “may contest the amount of the assessment,” is that the defendant may require the amount to be brought to the accurate result, as it should be, from a due application of the law. If he has been assessed on fifty feet, and he owns but forty-five, this irregularity must be corrected, and the court give judgment *250for the full amount of the assessment as it would, have been if no error had been committed. Under this construction, the statute becomes one consistent, harmonious system, a system that not only makes provision for the making of improvements, but also for .paying for the same, yet a system violative o-f the twenty-first section of, our Bill of Rights and of the fifth and fourteenth amendments to the federal Constitution.

Finally, conceding that the charter gives to property owners, who do not sign the waiver, the right to contest the amount of their assessment on the basis of actual benefits, it is very certain that it does not give those who do sign a waiver the same right. This to my mind is one of the chief vices of the law. I am loath to -believe that the lawmakers intended that one class of abutters should pay such part of the cost of an improvement as equals the sum of special benefits received by them, and that another.class should pay the balance of the cost without reference to the question of benefits. The clear purpose of the provision is to give those who are unable to pay the exaction in a lump sum the chance to save their property by paying in instalments through a long term of years at a moderate rate of interest. The purpose is'to benefit those of small means without injuring the contractor or those who pay in full, and, while not relieving them from an equal and just share of the cost of an improvement, it was obviously intended to put them in a situation to pay their part without oppression or serious loss. Surely it was not intended that the impecunious person should pay a .greater proportion of the cost than his more fortunate neighbor, yet the ruling leads to this result. If those who do not avail themselves of the right to pay by instalments are permitted to reduce their assessments to the sum -of actual benefits received, the result will necessarily follow that contractors will demand an unfair price in anticipation of a loss upon this class of assessments. It can make no difference to those who are pros*251perous and .prepared -to pay in full whether the contract price is reasonable or unreasonable, fair or unfair, since in no event-can they-be required to pay more than the amount of benefits received. It is therefore that class of abutters who are unable to pay their assessments in lump sum, and who are compelled to sign a waiver to secure the right to pay by instalments, who must ultimately bear the entire burden of exhorbitant contracts and improvident improvements. To illustrate: An improvement at a fair price costs $10,000, but the sum of actual special benefits conferred is but $5,000. Those owning two-fifths of the frontage are able and will pay their assessments in full, and are assessed the total sum of $4,000. Those owning three-fifths of the frontage are not able to pay in lump sum, and are assessed the total of $6,000. Those owning the two-fifths refuse to sign a waiver, contest .for actual special benefits, and reduce their assessments from $4,000 to $2,000. The contractor must therefore lose $2,000 of his contract price. But suppose the contractor anticipates this result and makes his bid $13,000 instead of $10,000. Then there must be assessed against the non-waivers $5,200, and against those who sign the waiver $1,800. But the non-waivers will require a reduction of the sum assessed against them, from $5,200 to $2,000, the sum of their actual benefits, and the contractor must even then be content with $9,800, which is $200 less than a fair price for the work; and those who signed the waiver and whose special benefits, on the same ratio, are but $3,000, are required to pay $1,800, being $4,800 in excess of benefits, and the excess thus exacted of them being about forty-eight per cent, of the total sum paid for the work.

Can it be that the law will sanction such a possibility ? And yet it is much more than a possibility. The principle will operate in some degree in every improvement made. If the assessments are demanded alike from all abutters, as originally made by the board of works, as I think it was *252intended they should be, then the extension of time for payment, while it can injure no one, will be a substantial benefit to those of small means, and I can not, therefore, in the absence of clear and explicit terms, yield to that construction of the law which will accord to the prosperous the right to demand that his assessment shall not exceed his benefit, when the exercise of that right will effect a material increase in the burden of the hapless cottager who must choose between the dire alternatives of giving up his property or submitting to an unjust exaction. A statute intended as a beneficence to that class of society whose rights the law cautiously guards should not, by construction, be turned into an instrument of oppression. It is no answer to say that the waiver constitutes a new contract upon a sufficient consideration, made with the eyes open, when the statute shows upon its face that such contracts are, or may be, which amounts to the same thing, secured by a species of coercion.

Dissenting Opinion.

Baker, C. J.

— It is said that the provisions in reference to a notice and a hearing contained in section 73 of the Indianapolis charter of 1891, together with the opportunity afforded the property owner to defend against the foreclosure suit mentioned in section 75 as amended in 1895, exempt the charter from the operation of the constitutional principles promulgated in the Norwood-Baker case.

Section 73 directs the board of public works, whenever it orders the improvement of a street, to “adopt a resolution to that effect”. “Notice of such resolution shall be published, remonstrances heard, said original resolution modified, confirmed, or rescinded, in the same manner as heretofore more specifically provided by this act with regard to the condemnation of property and the opening of streets. If such original resolution be confirmed or modified, it shall be final and conclusive on all persons, unless within ten days thereafter two-thirds of all the resident freeholders *253upon such street or alley remonstrate against such improvement. In case of such remonstrance, the improvement shall not take place unless specifically ordered by an ordinance within sixty days thereafter, passed by a two-thirds vote of the council, and approved by the mayor.”

Section 74 and following provide how, after an improvement has been determined upon, the cost shall be apportioned and collected. It seems clear, therefore, that section 73 can have relation to no question except the advisability of undertaking the improvement. And, since the city has the absolute authority to order the improvement to be undertaken against the unanimous protest of the property owners, the remonstrance evidences no higher legal right than the old petition to the king. Quill v. City of Indianapolis, 124 Ind. 292, 7 L. R. A. 691; Barber, etc., Co. v. Edgerton, 125 Ind. 455; Adams v. City of Shelbyville, 154 Ind. 467. This section 73 does not impair any constitutional right, because the city could have been granted authority to decide upon the necessity of the improvement without giving the property owners an opportunity to express their opinion on that question. But, equally, this section does not protect the owner in his constitutional rights in reference to the method of assessing his property, because that question is governed exclusively by subsequent sections.

This plain meaning can not properly be overcome, I think, by any commixture of section 73 and the provisions of the charter in reference to the condemnation of property. Section 63 (Acts 1891, p. 171) provides: “Whenever the board of public works shall desire to appropriate * * * any property * * * it shall adopt a resolution to that effect, describing the property which may be injuriously or beneficially affected, and shall cause notice of such resolution to be published in some daily newspaper of general circulation in such city once each week for two weeks. Such notice shall name a date, after the last day of publication, at which said board will receive or hear remonstrances from *254persons interested in or affected thereby. Said board shall consider such remonstrances, if any, and thereupon take final action, confirming, modifying or rescinding their original resolution. Such action shall be final and conclusive upon all persons.” Sections 64-68 direct that, after the condemnation has been determined upon> the board shall cause a list to be prepared of the persons and property affected by the condemnation; shall proceed, to award the damages sustained and to assess the benefits accruing to each piece of property on the list; shall thereupon cause written notice to be served upon each owner showing the amount of his award or assessment and fixing a time and place for him to remonstrate-against the amount of his award or assessment; and shall, after a hearing upon the remonstrances, decide the amount, from which decision the owner may appeal to the circuit court of the county. It thus appears that in condemnation cases the property owner has his constitutional rights fully protected; but this protection is found wholly in sections 64-68. The hearing in section 63 is on the advisability of the board’s proceeding with its declared intention to condemn certain property. And section 73, where it directs that “notice.of such resolution shall be published, remonstrances heard, said original resolution modified, confirmed, or rescinded, in the same manner as heretofore more specifically provided by this act with regard to the condemnation of property”, refers to section 63 and not at all to sections 64-68.

I do not perceive how the sum of a naught and a- definite quantity differs in value from the definite quantity standing-alone; and I therefore believe that the property owners’ constitutional safeguards must be looked for in sections 74-82 which alone refer to-the apportionment and collection of special assessments for street improvements.

These sections in clear and mandatory language require the board of public works to assess against the abutting property the total cost of the improvement by the arbitrary *255front-foot rule, to make out an assessment roll accordingly, and to deliver the roll to the department of finance. With that, the duties of the board of public works are at an end. There is no provision in the charter similar to section seven of the Barrett law by which-the board of public works is authorized or compelled, on a hearing after notice thereof, to alter or amend the roll so that the assessments shall not exceed the special benefits actually received. It is not pretended that the board of public works may disregard the arbitrary front-foot rule and lay assessments on some other basis. So far, then, as the board is concerned, the statute excludes the consideration of special benefits actually received.

But it is claimed that amended section 75 gives the circuit court, when the contractor comes to foreclose his lien, a power that renders harmless the arbitrary front-foot method required of the board of public works. The section states that the property owner who has not signed a waiver “may contest the amount of his assessment”. This is construed to mean that the property owner may require the court to go into the question of special benefits actually received as a matter of fact and to enter judgment for an amount not exceeding such benefits. Eor reasons set forth at length in the dissenting opinion in Adams v. City of Shelbyville, 154 Ind. 467, I think this method of interpretation ignores the context, disregards preceding sections, and violates the entire scope and manifest intent of the act. Furthermore, in my judgment, the method is self-destructive by proving that the property owner wopld have the same right to require the circuit court to determine from evidence what his special benefits actually were, even if the words in question were, omitted from the statute. The interpretation results from the following argument' as I understand it: The constitutional principle requiring that a special assessment for street improvements shall not exceed the special benefits in fact received is a limitation *256and restriction upon the amount of such assessment; therefore the words “may contest the amount of his assessment” include the right of the property owner to show, that his assessment was not made according to the constitutional principle and the power of the court to hear and determine what the assessment should be according to the Constitution. In my opinion, a property owner need not depend upon the grace of the legislature to enable him to assert in court a right conferred directly by the Constitution. If this be true, it would follow that when the contractor begins his foreclosure suit in a court of equity the defendant would have the right to answer that the assessment was not made according to the constitutional principle, without having to point the court to some statute authorizing that defense. And this result, I take it, is arrived at by the majority in holding that “Any mode of assessment prescribed by the legislature, whether the front-foot rule or any other, is to be regarded as subject to this condition [the constitutional restriction], and, unless inquiry into the question of special benefits is excluded or prohibited by the statute, such inquiry may properly be made by any tribunal before which the question of the collection of an assessment is brought.” That is: The statute requires the board of public works to make the assessments by the front-foot rule; but the contractor must go into court to foreclose; and the court, unless prohibited by the statute, may inquire into special benefits in fact received and render judgment for the amount thereof. It is plain that the omission of the words from the statute “may contest the amount of his assessment” would not be a statutory prohibition of the right of the court to conduct an inquiry into special benefits.

So the question becomes: What is the power of a court of equity in a foreclosure suit wherein the plaintiff seeks to recover upon a special assessment for street improvements, laid by the assessing officers according to the front-foot rule under a statute that does not authorize them to pursue any *257other method ? The property owner answers that the assessment was made by the board of public works, the assessing officers, according to an unconstitutional method. The plaintiff replies, in avoidance, that the court is a court of equity and has the power in this proceeding to make and collect an assessment according to constitutional principles. In coming to a conclusion that would require circuit courts to sustain and act upon such a reply, the majority hold, as I understand them, that the general grant of power to improve streets carries with it as an incident the right to use the means essential to the legitimate exercise of that power. In concrete form, and applied to the present case, the proposition is this: The city has a general grant of power to improve streets; even if the city officers are required to make the assessment by the front-foot rule, the court, in a suit to foreclose such an assessment, has the right, as an incident to the city’s general power, to use the means essential to the constitutional exercise of the power to improve streets.

In further support of their conclusion, the majority apply to the assessments made by the board of public works the holding, in Adams v. City of Shelbyville, that the engineer’s report by the front-foot rule, as required by section six of the Barrett law, was to be treated only as prima facie correct. But there is a vast difference between the Barrett law and the Indianapolis charter. Under the Barrett law it was held that the front-foot rule prescribed in sections three to six was not binding upon the council because in section seven was found a power in the council, on a hearing after notice to the property owners, to change the basis of assessment from frontage to special benefits actually received; and that there was no assessment until one was made by the council after the hearing. Under the Indianapolis charter there is no provision similar to section seven of the Barrett law. The board of public works are definitely commanded to assess *258by frontage. It is not contended that they may take actual special benefits into account. The contractor brings into court an assessment by frontage. If the court is not limited to determining whether or not the assessment is correct by the rule under which the statute commanded -the assessing officers to lay it (and on this question alone is the assessment merely prima facie correct), but has the power to decide what the property owner ought to pay by the rule of actual special benefits, it was supererogation for the court to base its decision upholding the Barrett law on the power given by section seven to the assessing officer to adopt actual special benefits as the basis of assessment; for under the Barrett law as well as.under the Indianapolis charter, the collection of assessments may be resisted in court.

The power of a court of equity in a foreclosure suit upon a special assessment, laid by the city’s assessing officers according to frontage, was definitely decided, in my opinion, by the Supreme Court of the United States in the NorwoodBaker case. The Ohio statute gave the village the option of adopting by ordinance the front-foot method or the method of measuring the assessments by benefits actually received. The village chose the front-foot method. The court said: “The assessment was in itself an illegal one because it rested upon a basis that excluded any consideration of benefits. A decree enjoining the whole. assessment was therefore the only appropriate one.” The court announced the self-evident proposition that the basis of frontage in and of itself necessarily excludes the consideration of special benefits actually received. If this be true of an assessment by frontage under a statute that gave the village an option of methods, why is it not true of an assessment by frontage under a statute that gives the city no option ?

The Supreme Court of the United States decided that “a decree enjoining the whole assessment was therefore the only appropriate one”, because, as I view it, the court of equity, when the defendant interposed his constitutional *259guaranties as a defense, as he had the right to do without the consent or over the prohibition of the legislature, was bound to protect his rights by declaring the statute that authorized the frontage method and the ordinance under that statute to be unconstitutional. But this court is now deciding (what the Supreme Court of the United States had the opportunity and refused to hold) that it is the duty of the court of equity to treat an assessment by frontage, which is final so far as the city is authorized to act, as Only prima facie evidence of the amount the defendant ought to pay on the basis of special benefits actually received, and to determine -from all the evidence what that amount really is. Thus, the court of equity lays a constitutional assessment and enters final judgment for its payment in the one proceeding. Thus, the property owner is given no opportunity to pay his assessment laid according to constitutional principles except with the addition of costs and his adversary’s attorneys’ fees, though he may have stood ready from the beginning to pay his assessment on that basis if the city could and would have given him the chance. Thus, the court of equity, exclusively an agency of the judicial department of the State, provides the method of laying assessments, — exclusively a power of the legislative department; and makes the assessment, — exclusively a function of the administrative department. Thus, the court of equity is required to hold an act which commands the city to assess by frontage to be unobnoxious to the constitutional guaranty of the basis of actual benefits, because it is the duty of the court of equity to disregard the basis of the assessment sued upon (and therefore the statute that prescribed that basis) and to inquire de novo and determine for itself what the assessment should be on the constitutional basis.

It may be that the Supreme Court of the United States will decide that a controversy over street assessments between citizens of the same State, under a statute providing ample notice of assessments by frontage and affording due *260opportunity to property owners to be beard on tbe question whether the assessments have been equally and properly apportioned by frontage, presents no Federal question. It may be that the rulings announced in Davidson v. New Orleans, 96 U. S. 97, 24 L. ed. 616, and in other cases cited in the majority opinion herein, will be held to be controlling in .cases like the present one. But, until then, I think the principles promulgated in Norwood v. Baker, should be frankly followed.