side of the docket, as the nature of the new right or new remedy requires. Van Norden v. Morton, 99 U. S. 378. Here there can be no doubt that the remedy by injunction against an illegal tax, expressly granted by the statute, is to be enforced, and can only be appropriately enforced, on the equity side of the court." Again: "Independently of this statute, however, we are of opinion that when a rule or system of valuation is adopted by those whose duty it is to make the assessment, which is designed to operate unequally, and to violate a fundamental principle of the constitution, and when this rule is applied, not solely to one individual, but to a large class of individuals or corporations, that equity may properly interfere to restrain the operation of this unconstitutional exercise of power." These observations are pertinent to the question of the power and duty of a court of equity to interfere for the plaintiff's relief. The present case is one of illegal assessment under a rule or system which, as we have stated, violated the constitution, in that the entire cost of the street improvement was imposed upon the abutting property, by the front foot, without any reference to special benefits.

Mr. High, in his treatise on Injunctions, says that no principle is more firmly established than that requiring a taxpayer, who seeks the aid of an injunction against the enforcement or collection of a tax. first to pay or tender the amount which is conceded to be legally and properly due, or which is plainly seen to be due. But he also says: "It is held, however, that the general rule requiring payment or tender of the amount actually due as a condition to equitable relief against the illegal portion of the tax has no application to a case where the entire tax fails by reason of an illegal assessment. And in such case an injunction is proper, without payment or tender of any portion of the tax, since it is impossible for the court to determine what portion is actually due, there being no valid or legal tax assessed." 1 High, Inj. (3d Ed.) § 498.

The present case is not one in which (as in most of the cases brought to enjoin the collection of taxes or the enforcement of special assessments) it can be plainly or clearly seen, from the showing made by the pleadings, that a particular amount, if no more, is due from the plaintiff, and which amount should be paid or tendered before equity would interfere. It is rather a case in which the entire assessment is illegal. In such a case it was not necessary to tender, as a condition of relief being granted to the plaintiff, any sum, as representing what she supposed, or might guess, or was willing to concede, was the excess of cost over any benefits accruing to the property. She was entitled, without making such a tender, to ask a court of equity to enjoin the enforcement of a rule of assessment that infringed upon hez constitutional rights. In our judgment,

the circuit court properly enjoined the enforcement of the assessment as it was, without going into proofs as to the excess of the cost of opening the street over special benefits.

It should be observed that the decree did not relieve the abutting property from liability for such amount as could be properly assessed against it. Its legal effect, as we now adjudge, was only to prevent the enforcement of the particular assessment in question. It left the village, in its discretion, to take such steps as were within its power to take, either under existing statutes, or under any authority that might thereafter be conferred upon it, to make a new assessment upon the plaintiff's abutting property for so much of the expense of opening the street as was found, upon due and proper inquiry, to be equal to the special benefits accruing to the property. By the decree rendered the court avoided the performance of functions appertaining to an assessing tribunal or body, and left the subject under the control of the local authorities designated by the state. Such a decree was more appropriate than one enjoining the assessment to such extent as, in the judgment of the circuit court, the cost of the improvement exceeded the special benefits. The decree does not prevent the village, if it has or obtains power to that end, from proceeding to make an assessment in conformity with the view indicated in this opinion, namely, that, while abutting property may be specially assessed on account of the expense attending the opening of a public street in front of it, such assessment must be measured or limited by the special benefits accruing to it (that is, by benefits that are not shared by the general public), and that taxation of the abutting property for any substantial excess of such expense over special benefits will, to the extent of such excess, be a taking of private property for public use without compensation.

It has been suggested that what has been said by us is not consistent with our decision in Parsons v. District of Columbia, 170 U. S. 45, 52, 56, 18 Sup. Ct. 521. But this is an error. That was the case of a special assessment against land in the District of Columbia belonging to the plaintiff, Parsons, as a watermain tax, or assessment for laying a water main in the street on which the land abutted. The work was done under the authority of an act of congress establishing a comprehensive system for the District, and regulating the supply of water, and the erection and maintenance of reservoirs and water mains. This court decided that "it was competent for congress to create a general system to store water and furnish it to the Inhabitants of the District, and to prescribe the amount of the assessment, and the method of its collection, and that the plaintiff in error cannot be heard to complain that he was not notified of the creation of such a system, or consulted as to

the probable cost thereof. He is presumed to have notice of these general laws regulating such matters. The power conferred upon the commissioners was not to make assessments upon abutting properties, nor to give notice to the property owners of such assessments, but to determine the question of the propriety and necessity of laying water mains and pipes, and of erecting fire plugs and hydrants; and their bona fide exercise of such power cannot be reviewed by the courts." One of the points in the case was presented by the contention that "the assessment exceeded the actual cost of the work." But that objection, the court said, overlooked "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, and there is no such disproportion between the amount assessed and the actual cost as to show any abuse of legislative power. A similar objection was disposed of by the supreme judicial court of Massachusetts in the case of Leominster v. Conant, 139 Mass. 384. In that case the validity of an assessment for a sewer was denied because the amount of the assessment exceeded the cost of the sewer; but the court held that the legislation in question had created a sewer system, and that it was lawful to make assessments by a uniform rate which had been determined upon for the sewerage territory." If the cost of laying the water mains in question in that case had exceeded the value of the property specially assessed, or had been in excess of any benefits received by that property, a different question would have been presented.

Nor do we think that the present case is necessarily controlled by the decision in Spencer v. Merchant, 125 U. S. 345, 351, 357, 8 Sup. Ct. 924. That case came here upon writ of error to the highest court of New York. It related to an assessment, by legislative enactment, upon certain isolated parcels of land, of a named aggregate amount, which remained unpaid, of the cost of a street improvement. In reference to the statute, the validity of which was questioned, the court said: "By the statute of 1881 a sum equal to so much of the original assessment as remained unpaid, adding a proportional part of the expenses of making that assessment, and interest since, was ordered by the legislature to be levied and equitably apportioned by the supervisors of the county upon and among these lots, after public notice to all parties interested to appear and be heard upon the question of such apportionment; and that sum was levied and assessed accordingly upon these lots, one of which was owned by the plaintiff. The question submitted to the supreme court of the state was whether this assessment on the plaintiff's lot was valid.

He contended that the statute of 1881 was unconstitutional and vold, because it was an attempt by the legislature to validate a void assessment, without giving the owners of the lands assessed an opportunity to be heard upon the whole amount of the assessment." Again: "The statute of 1881 afforded to the owners notice and hearing upon the question of the equitable apportionment among them of the sum directed to be levied upon all of them, and thus enabled them to contest the constitutionality of the statute, and that was all the notice and hearing to which they were entitled." 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 levied upon all of them. This appears from both the opinion and the dissenting opinion in that case.

We have considered the question presented for our determination with reference only to the provisions of the national constitution. But we are also of opinion that, under any view of that question different from the one taken in this opinion, the requirement of the constitution of Ohio that compensation be made for private property taken for public use, and that such compensation must be assessed "without deduction for benefits to any property of the owner," would be of little practical value, if, upon the opening of a public street through private property, the abutting property of the owner, whose land was taken for the street, can, under legislative authority, be assessed, not only for such amount as will be equal to the benefits received, but for such additional amount as will meet the excess of expense over benefits. *The judgment of the circuit court must be affirmed, upon the ground that the assessment against the plaintiff's abutting property was under a rule which excluded any inquiry as to special benefits, and the necessary operation of which was, to the extent of the excess of the cost of opening the street in question over any special benefits accruing to the abutting property therefrom, to take private property for public use without compensation. It is so ordered.

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 re

ceived 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:

reasons.

"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 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 10 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 assess 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 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

302

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 other 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.

(172 U. S. 339)

UNITED STATES v. BUFFALO NATURAL
GAS FUEL CO.
(January 3, 1899.)
No. 64.

CUSTOMS DUTIES-NATURAL GAS.

1. In the interpretation of the revenue laws, words are to be taken in their popular sense, or according to their commercial designation, if that differs from their ordinary meaning.

2. Natural gas was exempt from duty under Act Oct. 1, 1890 (26 Stat. 604, 607) par. 496, as a "crude bitumen," or paragraph 651, as a "crude mineral, not advanced in value by manufacture," etc., and was not dutiable under section 4 as a raw or unmanufactured article not enumerated.

On Writ of Certiorari to the United States Circuit Court of Appeals for the Second Circuit.

Asst. Atty. Gen. Hoyt, for the United States. H. P. Bissell, for respondent.

Mr. Justice PECKHAM delivered the opinion of the court.

The defendant gas company, doing busi

ness at Buffalo, in the state of New York, imports natural gas from the dominion of Canada for the purpose of supplying its customers with that article. The gas is brought in pipes under the Niagara river, and is used for consumption as fuel and for illuminating purposes.

In 1893 the gas imported by the company was assessed for duty by the collector of the port of Buffalo as a nonenumerated unmanufactured article, at 10 per cent., under section 4 of the tariff act of October 1, 1890 (26 Stat. 567, at page 613).

The importers claimed that the gas was entitled to free entry under section 2 of the above act, providing for a free list, either under paragraph 496 (page 604), as crude bitumen, or under paragraph 651 (page 607), as a crude mineral, not advanced in value or condition by refining or grinding, or by any other process of manufacture, not specially? provided for in the act. The importers made proper protest, and obtained a review of the decision of the collector by the board of general appraisers. That board, on a second hearing, after testimony had been given as to the character of the gas, decided that natural gas was a crude mineral, and the board on that ground sustained the claim that it was exempt from duty under paragraph 651 of the tariff act of 1890.

The circuit court affirmed that decision, and upon a review by the circuit court of appeals for the Second circuit (45 U. S. App. 345, 24 C. C. A. 4, and 78 Fed. 110) the decision was again affirmed. The latter court, by Circuit Judge Lacombe, said: "We do not undertake in this case to decide whether or not natural gas is a 'crude bitumen.' If it be such, the provisions of paragraph 496 would control its classification, being more specific than those of paragraph 651. Both paragraphs are in the free list, and since natural gas comes fairly within the general provision for crude minerals, and is therefore free, it is unnecessary now to inquire whether it is also within the more specific description 'crude bitumen,' which is also free. The board of general appraisers properly reversed the collector's assessment of the article for duty. It is not a 'raw or unmanufactured article not enumerated.'"

Circuit Judge Wallace, while concurring in the affirmance of the decision of the circuit court, was of the opinion that the importation in controversy ought to be classified under paragraph 496 as crude bitumen, and exempt from duty on that ground.

The decision having been duly entered, this court, upon the petition of the government, issued a writ of certiorari, and the case has been brought here for review.

We are of opinion that the circuit court of appeals was right in its disposition of the case. The substance that is taken from the bosom of the earth, and which burns brightly without any further labɔr put upon it, is popularly designated as "natural gas." This