In 189S, however, was decided the case of Norwood v. Baker,12 which seemed to state a new doctrine. The facts in this case were 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 established 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 legislature 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.

"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. Mat-tinglv v. District of Columbia: Spencer v. Merchant: Watson v. Nevin; Shoemaker v. United States; Paulsen v. Portland, and Fallbrook Irrig. Di6t. 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 one-half 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. cd, 270.

12 172 U. S. 269; 19 Sup. Ct. Rep. 187; 43 L. ed. 443.

" 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-