an act extending the provisions of the act of June 25, 1890, and the amendatory act of 1892 (not here in question), the first section of which provided that the above acts "are hereby amended and extended so as to authorize the funding of all outstanding obliga- | tions of said territory, and the counties, municipalities and school districts thereof, as provided in the act of congress approved June 25, 1890, until January 1, 1897, and all outstanding bonds, warrants and other evidences of indebtedness of the territory of Arizona, and the counties, municipalities and school districts thereof, heretofore authorized by legislative enactments of said territory bearing a higher rate of interest than is authorized by the aforesaid funding act approved June 25, 1890, and which said bonds, warrants and other evidences of indebtedness have been sold or exchanged in good faith in compliance with the terms of the acts of the legislature by which they were authorized, shall be funded with the interest thereon which has accrued and may accrue until funded into the lower interest-bearing bonds as provided by this act.

"Sec. 2. That all bonds and other evidences of indebtedness heretofore funded by the loan commission of Arizona under the provisions of the act of congress approved June 25, 1890, and the act amendatory thereof and supplemental thereto approved August 3, 1894, are hereby declared to be valid and legal for the purposes for which they were issued and funded; and all bonds and other evidences of indebtedness heretofore issued under the authority of the legislature of said territory, as hereinbefore authorized to be funded, are hereby confirmed, approved and validated, and may be funded as in this act provided until January 1, 1897: provided, that nothing in this act shall be so construed as to make the government of the United States liable or responsible for the payment of any of said bonds, warrants or other evidences of indebtedness by this act approved, confirmed and made valid, and authorized to be funded."

This is the act upon which the relators place their chief reliance. Its evident purpose was to authorize the funding of all outstanding bonds of the territory and its municipalities which had been authorized by legislative enactments, whether lawful or not, provided such bonds had been "sold or exchanged in good faith and in compliance with the terms of the act of the legislature by which they were authorized." The second section deals with the original bonds which had not been theretofore funded, and provides that all such as had been theretofore issued under the authority of the legislature, and which by the first section were authorized to be funded, should be confirmed, approved, and validated, and might be funded until January 1, 1897.

We think it was within the power of congress to validate these bonds. Their only de

fect was that they had been issued in excess of the powers conferred upon the territorial municipalities by the act of June 8, 1878. There was nothing at that time to have prevented congress from authorizing such municipalities to issue bonds in aid of railways, and that which congress could have originally authorized it might subsequently confirm and ratify. This court has repeatedly held that congress has full legislative power over the territories,-as full as that which a state legislature has over its municipal corporations. Insurance Co. v. Canter, 1 Pet. 511; National Bank v. Yankton Co., 101 U. S. 129.

Curative statutes of this kind are by no means unknown in federal legislation. Thus, in National Bank V. Yankton Co., supra, this court sustained an act of congress nullifying a legislative act of the territory of Dakota authorizing the issue of railway bonds, but validating action theretofore taken by the county voting subscription to a certain railroad company, holding it to be "equivalent to a direct grant of power by congress to the county to issue the bonds in dispute." In Thompson v. Perrine, 103 U. S. 806, we also sustained a similar act of the state of New York ratifying and confirming the action of commissioners in issuing similar bonds. In Read v. Plattsmouth, 107 U. S. 568, 2 Sup. Ct. 208, a similar ruling was made with regard to an act of the legislature of Nebraska validating an issue of bonds by the city of Plattsmouth for the purpose of raising money to construct a high-school building. See, also, New Orleans v. Clark, 95 U. S. 644; Grenada Co. Sup'rs v. Brogden, 112 U. S. 261, 5 Sup. Ct. 125; Otoe Co. v. Baldwin, 111 U. S. 1, 4 Sup. Ct. 265; 1 Dill. Mun. Corp. § 544; Cooley, Const. Lim. (6th Ed.) 456; Bolles v. Brimfield, 120 U. S. 759, 7 Sup. Ct. 736; Anderson v. Santa Anna Tp., 116 U. S. 356, 6 Sup. Ct. 413; Dentzel v. Woldie, 30 Cal. 138, 145.

The fact that this court had held the original Pima county bonds invalid does not affect the question. They were invalid because there was no power to issue them. They were made valid by such power being subsequently given, and it makes no possible dif. ference that they had been declared to be void under the power originally given. The judgment in that case was res adjudicata only of the issues then presented, of the facts as they then appeared, and of the legislation then existing.

Nor was the act intended to be confined to the outstanding legal indebtedness of the county. The first section of the act requires the funding of all outstanding obligations of said territory and its municipalities, and all outstanding bonds, etc., of the territory and Its municipalities, "heretofore authorized by legislative enactments of said territory, bearing a higher rate of interest than is authorized by the aforesaid funding act, approved June 5, 1890," which said bonds, etc., "have been sold or exchanged in good faith in compliance with the terms of the acts of the leg.

islature by which they were authorized"; and the second section confirms, approves, and validates all bonds and other evidences of indebtedness theretofore issued under the authority of the legislature, and authorized to be funded by the first section, and declares that they "may be funded, as in this act provided, until January 1, 1897." Construing this in the light of the surrounding circumstances, and, particularly, in view of the memorial, it is entirely clear that it was intended to apply to bonds issued under authority of the legislature, and purporting on their face to be legal obligations of the county, whether in fact legal or not; and, to put the matter still further beyond question, they are expressly declared to be legal and valid. It is true that by the tenth section of the act of congress of June 25, 1890, the loan commissioners were authorized to refund municipal bonds "upon the official demand of said authorities" of the municipalities; but there is no limitation of that kind in section seven of the territorial funding act of March 19, 1891, which declares that "any person holding bonds," etc., "* may exchange the same for the bonds issued under the provisions of this act at not less than their face or par value and the accrued interest at the time of the exchange."

In addition to this, however, the act of congress of June 6, 1896, declared that all the outstanding bonds, warrants, and other evidences of indebtedness of the territory and its municipalities "shall" be funded, with the interest thereon, etc.

We are, therefore, of opinion that it was made the duty of the loan commissioners by these acts to fund the bonds in question, and that the order of the supreme court of the territory must be reversed, and the case remanded to that court for further proceedings not inconsistent with the opinion of this court.

1. The only just basis upon which special assessments for public improvements can rest is that of special benefits to the property taxed; and the exaction from the owner of private property of the cost of such an 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.

2. Where a special assessment is in itself illegal, because it rests upon a basis that excludes any consideration of benefits to the property taxed, proof that it is in excess of benefits is not required, in a suit to enjoin its enforcement, as the only appropriate decree in such case is one enjoining the whole assessment, leaving the local authorities to make a new one according to law.

3. Nor is such suit controlled by the general

principle that a plaintiff must tender or offer to pay what is legally due, before he can obtain relief in equity against an excessive tax, the entire assessment being illegal.

4. Both under Rev. St. Ohio 1880. § 5848, which expressly authorizes suits to enjoin the illegal levy of taxes and assessments, and upon general principles aside from such statute, a federal court in Ohio may entertain a suit to enjoin the enforcement of a special assessment made under a rule or system in violation of the constitution of the United States.

5. Proceedings by a village, under a state statute, by which ground for a street was condemned through plaintiff's property, the damages awarded were paid, and the amount of such damages, together with all the costs and expenses of the condemnation, were assessed back on the remaining property of plaintiff, lying on either side of the street, without inquiry as to special benefits, constituted a taking of plaintiff's property for public use without compensation, to the extent of the excess of the cost of opening the street over the benefits.

Mr. Justice Brewer, Mr. Justice Gray, and Mr. Justice Shiras dissenting.

Appeal from the Circuit Court of the United States for the Southern District of Ohio.

William E. Bundy, for appellant.
Charles W. Baker, for appellee.

*Mr. Justice HARLAN delivered the opinion of the court.

This case arises out of the condemnation of certain lands for the purpose of opening a street in the village of Norwood, a municipal corporation in Hamilton county, Ohio.

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The particular question presented for con-sideration involves the validity of an ordinance of that village assessing upon the ap-" pellee's land, abutting on each side of the new street, an amount covering, not simply a sum equal to that paid for the land taken for the street, but, in addition, the costs and expenses connected with the condemnation proceedings.

By the final decree of the circuit court of the United States it was adjudged that the assessment complained of was in violation of the fourteenth amendment of the constitution of the United States, forbidding any state from depriving a person of property without due process of law, and the village was perpetually enjoined from enforcing the assessment. 74 Fed. 997.

The present appeal was prosecuted directly to this court, because the case involved the construction and application of the constitution of the United States.

It will conduce to a clear understanding of the case to ascertain the powers of the village under the constitution and statutes of Ohio, and to refer somewhat in detail to the proceedings instituted for the opening of the street through appellee's property.

By the constitution of Ohio it is declared: "Private property shall ever be held inviolate, but subservient to the public welfare. When taken in time of war or other public exigency imperatively requiring its immediate seizure, or for the purpose of making or

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repairing roads, which shall be open to the public, without charge, a compensation shall be made to the owner, in money, and in all other cases, where private property shall be taken for public use, a compensation therefor shall first be made in money; and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner." Const. Ohio 1851, art. 1, § 19, Bill of Rights; 3 Bates' Ann. St. Ohio, p. 3525.

Cities and villages in Ohio are by statute given power to lay off, establish, open, widen, narrow, straighten, extend, keep in order and repair, and light streets, alleys, public grounds, and buildings, wharves, landing places, bridges, and market spaces within the corporation, and to appropriate private property for the use of the corporation. And . "each city and village may appropriate, enter upon, and hold, real estate within its corporate limits for the following purposes, but no more shall be taken or appropriated than is reasonably necessary for the purpose to which it is to be applied: (1) For opening, widening, straightening and extending streets, alleys and avenues; also for obtaining gravel or other material for the improvement of the same, and for this purpose the right to appropriate shall not be limited to lands lying within the limits of the corporation.

1 Rev. St. Ohio 1890, § 1692, subds. 18, 33; Id. § 2232, pp. 429, 430, tits. "Cities and Villages," "Enumeration of Powers"; Id. p. 572, tit. "Appropriation by Cities and Villages of Private Property to Public Use."

Other provisions of the statute prescribe the steps to be taken in the appropriation by a municipal corporation of private property for public purposes. Sections 2233 to 2261, inclusive.

It is further provided by the statutes of Ohio (Rev. St. 1890, c. 4, tit. 12, "Assessments," etc.) as follows:

"Sec. 2263. When the corporation appropriates, or otherwise acquires, lots or lands for the purpose of laying off, opening, extending, straightening, or widening a street, alley, or other public highway, or is possessed of property which it desires to improve for street purposes, the council may assess the cost and expenses of such appropriation or acquisition, and of the improvement, or of either, or of any part of either, upon the general tax list, in which case the same shall be assessed upon all the taxable real and personal property in the corporation.

"Sec. 2264. In the cases provided for in the last section, and in all cases where an improvement of any kind is made of an existing street, alley or other public highway, the council may decline to assess the costs and expenses in the last section mentioned or any part thereof, or the costs and expenses or any part thereof of such improvement, except as hereinafter mentioned, on the general tax list, in which event such costs and expenses,

or any part thereof which may not be so assessed on the general tax list, shall be assessed by the council on the abutting and such adjacent and contiguous or other benefited lots and lands in the corporation, either in proportion to the benefits which may result from the improvement, or according to the value of the property assessed, or by the front foot of the property bounding and abutting upon the improvement, as the council, by ordinance setting forth specifically the lots, and lands to be assessed, may determine before the improvement is made, and in the manner and subject to the restrictions herein contained; and the assessments shall be payable in one or more instalments, and at such times as the council may prescribe. 1 Rev. St. Ohio, p. 581.

Section 2271 provides: "In cities of the first grade of the first class, and in corporations in counties containing a city of the first grade of the first class, the tax or assessment especially levied or assessed upon any lot or land for any improvement, shall not, except as provided in section 2272, exceed twenty-five per centum of the value of such lot or land after the improvement is made, and the cost exceeding that per centum shall be paid by the corporation out of its general revenue; * and whenever any street

or avenue is opened, extended, straightened, or widened, the special assessment for the cost and expense, or any part thereof, shall be assessed only on the lots and lands bounding and abutting on such part or parts of said street or avenue so improved, and shall include of such lots and lands only to a fair average depth of lots in the neighborhood, but shall also include other lots and parts thereof and lands to such depth; and whenever at least one-half in width of any street or avenue has been dedicated for such purpose from the lots and lands lying on one side of the line of such street or avenue, and such street or avenue is widened by taking from lots and lands on the other side thereof, no part of the cost and expense thus increased [incurred] shall be assessed upon the lots and lands lying on said first-mentioned side, but only upon the other side, and as aforesaid, but said special assessment shall not be in any case in excess of benefits." 1 Rev. St. Ohio, p. 586.

Section 2272 relates to assessments for improvements made in conformity with the petition of the owners of property.

By section 2277 it is provided that "in cases wherein it is determined to assess the whole or any part of the cost of an improve-, ment upon the lot or lands bounding or abutting upon the same, or upon any other lots or lands benefited thereby, as provided in section 2264, the council may require the board of improvements, or board of public works, as the case may be, or may appoint three disinterested freeholders of the corporation or vicinity, to report to the council an

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estimated assessment of such cost on the lot or lands to be charged therewith, in proportion, as nearly as may be, to the benefits which may result from the improvement to the several lots or parcels of land so assessed, a copy of which assessment shall be filed in the office of the clerk of the corporation for public inspection."

Section 2284 is in these words: "The cost of any improvement contemplated in this chapter shall include the purchase money of real estate, or any interest therein, when the same has been acquired by purchase, or the value thereof as found by the jury, where the same has been appropriated, the costs and expenses of the proceedings, the damages assessed in favor of any owner of adjoining lands and interest thereon, the costs and expenses of the assessment, the expense of the preliminary and other surveys, and of printing, publishing the notices and ordinances required, including notice of assessment, and serving notices on property owners, the cost of construction, interest on bonds, where bonds have been issued in anticipation of the collection of assessments, and any other necessary expenditure."

or

By an ordinance approved October 19. 1891, the village declared its intention to condemn and appropriate, and by that ordinance condemned and appropriated, the lands grounds in question for the purpose of opening and extending Ivanhoe avenue; and. in order to make such appropriation effectual, the ordinance directed the institution of the necessary proceedings in court for an inquiry and assessment of the compensation to be paid for the property to be condemned.

The ordinance provided that the cost and expense of the condemnation of the property, including the compensation paid to the owners, the cost of the condemnation proceedings, the cost of advertising, and all other costs, and the interest on bonds issued, if any, should be assessed "per front foot upon the property bounding and abutting on that part of Ivanhoe "avenue, as condemned and appropriated herein."-the assessments payable in 10 annual installments. if deferred, and the same collected as prescribed by law, and in the assessing ordinance thereafter to be passed.

Under that ordinance, application was made by the village to the probate court of Hamilton county for the impaneling of a jury to assess the compensation to be paid for the property to be taken. A jury was accordingly impaneled, and it assessed the plaintiff's compensation at $2,000, declaring that it made the "assessment irrespective of any benefit to the owner from any improvement proposed by said corporation."

The assessment was confirmed by the court, the amount assessed was paid to the owner, and it was ordered that the village have immediate possession and ownership of the premises for the uses and purposes specified in the ordinance.

*After the finding of the jury the village council passed an ordinance levying and assessing "on each front foot of the several lots of land bounding and abutting on Ivanhoe avenue, from Williams avenue to a point 300 feet north," certain sums for each of the years 1892 to 1901, inclusive, "to pay the cost and expense of condemning property for the extension of said Ivanhoe avenue between the points aforesaid [from Williams avenue to a point 300 feet north], together with the interest on the bonds issued to provide a fund to pay for said condemnation."

By the same ordinance provision was made for issuing bonds to provide for the payment of the cost and expense of the condemnation, which included the amount found by the jury as compensation for the property taken, the costs in the condemnation proceedings, solicitor and expert witness fees, advertising, etc.; in all, $2.218.58.

The present suit was brought to obtain a decree restraining the village from enforcing the assessment in question against the abutting property of the plaintiff.

It was conceded that the defendant assessed back upon the plaintiff's 300 feet of land upon either side of the strip taken (making 600 feet in all of frontage upon the strip condemned) the above sum of $2,218.58, payable in installments, with interest at 6 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; and the village admitted that the assessment had been placed upon the tax duplicate, and sent to the county treasurer for collection, as a lien and charge against the abutting property owned by the plaintiff.

But the village alleged that the appropri ation proceedings and consequent assessment were all in strict conformity with the

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