The principle underlying special assessments upon private property to meet the cost of public improvements is that the property upon which they are imposed is peculiarly benefited, and therefore that the owners do not in fact pay anything in excess of what they receive by reason of such improvement.
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; but unless such excess of cost over special benefits be of a material character, it ought not to be regarded by a court of equity, when its aid is invoked to restrain the enforcement of a special assessment.
The Constitution of Ohio authorizes the taking of private property for the purpose of making public roads, but requires a compensation to be made therefor to the owner, to be assessed by a jury, without deduction for benefits. The statutes of the state, quoted or referred to in the opinion of the Court, make provisions for the manner in which this power is to be exercised. In the case of the opening of a new road, they authorize a special assessment upon bounding and abutting property by the front foot for this entire cost and expense of the improvement, without taking special benefits into account. The alleged improvement in this case was the construction through property of the appellee of a street 300 feet in length and 50 feet in width, to connect two streets of that width running from each end in opposite directions. In the proceedings in this case, the corporation of Norwood manifestly went upon the theory that the .abutting property could be made to bear the whole cost of the new road, whether it was benefited or not to the extent of such cost, and the assessment was made accordingly. This suit was brought to obtain a decree restraining the corporation from enforcing the assessment against the plaintiff's abutting property, which decree was granted. Held that the assessment was in itself an illegal one because it rested upon a basis that excluded any consideration of benefits; that therefore a decree enjoining the whole assessment was the only appropriate decree; that 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 costs over any benefits accruing to the property, and that the legal effect of the decree was only to prevent the enforcement of the particular assessment in question, leaving the corporation free to take such steps as might be within its power to make a new assessment upon the plaintiff's abutting property for so much of the expense of opening the street as might be found equal to the special benefits accruing to the property.
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.
the appellee'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 F. 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.
"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 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 3525.
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.Stat.Ohio 1890, § 1692, subds. 18, 33, and § 2232, pp. 429, 430, Title, Cities and Villages; Enumeration of Powers, and p. 572, Title 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. §§ 2233 to 2261, inclusive.
"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."
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 installments, and at such times as the council may prescribe. . . ."
1 Rev.Stat. Ohio, p. 581.
"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 § 2272, exceed twenty-five percentum of the value of such lot or land after the improvement is made, and the cost exceeding that percentum 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."
Section 2272 relates to assessments for improvements made in conformity with the petition of the owners of property.
upon the same, or upon any other lots or lands benefited thereby, as provided in § 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 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."
"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."
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 or 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.
Avenue, as condemned and appropriated herein" -- the assessments payable in ten 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.
"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 six percent, 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.
of such improvement, and that in any event an expense had been incurred by the municipal corporation in opening the street "equal to the full amount of the said assessment, which is a proper charge against the complainant's abutting property."
It was agreed at the hearing of the present case that the sum awarded by the verdict of the jury was paid to and received by the plaintiff, and that it was that sum, together with the costs and charges, that the village undertook to assess back upon the land upon either side of said strip of land.
The plaintiff's suit proceeded upon the ground, distinctly stated, that the assessment in question was in violation of the Fourteenth Amendment, providing that no state shall deprive any person of property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws, as well as of the bill of rights of the Constitution of Ohio.
It has been adjudged that the due process of law prescribed by that amendment requires compensation to be made or secured to the owner when private property is taken by a state, or under its authority, for public use. Chicago, Burlington &c. Railroad v. Chicago, 166 U. S. 226, 166 U. S. 241; Long Island Water Supply Co. v. City of Brooklyn, 166 U. S. 685, 166 U. S. 695.
does the exclusion of benefits from the estimate of compensation to be made for the property actually taken for public use authorize the public to charge upon the abutting property the sum paid for it, together with the entire costs incurred in the condemnation proceedings, irrespective of the question whether the property was benefited by the opening of the street?
"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."
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.
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.
In Illinois Central Railroad v. Decatur, 147 U. S. 190, 147 U. S. 202, where it was held that a provision in the charter of a railroad company exempting it from taxation did not exempt it from a municipal assessment imposed upon its land for grading and paving a street, the decision rested upon the ground that a special assessment proceeds on the theory that the property charged therewith derives an increased value from the improvement, "the enhancement in value being the consideration for the charge."
"a portion of the community is to be specially and peculiarly benefited in the enhancement of the value of property peculiarly situated as regards a contemplated expenditure of public funds, and, in addition to the general levy, they demand that special contributions, in consideration of the special benefit, shall be made by the persons receiving it. The justice of demanding the special contribution is supposed to be evident in the fact that the persons who are to make it, while they are made to bear the cost of a public work, are at the same time to suffer no pecuniary loss thereby, their property being increased in value by the expenditure to an amount at least equal to the sum they are required to pay."
"There can be no justification for any proceeding which charges the land with an assessment greater than the benefits. It is a plain case of appropriating private property to public uses without compensation."
In Macon v. Patty, 57 Miss. 378, 386, the Supreme Court of Mississippi said that a special assessment is unlike an ordinary tax, in that the proceeds of the assessment must be expended in an improvement from which "a benefit clearly exceptive and plainly perceived must inure to the property upon which it is imposed."
benefit of any improvement before proceedings are commenced, but the extent of injury to be done to individuals cannot be known to them until the coming in of the report of the commissioners. They may then be satisfied that the property which is to be benefited will not be benefited to the extent of the assessment necessary to indemnify those whose property is taken from them. What are they to do? If they proceed, they deprive some persons of their property unjustly. If the report of the commissioners is correct, the amount awarded to the owners of property taken cannot be reduced without injustice to them. If the assessment is confirmed and enforced, the owners of the adjacent property must pay beyond the enhanced value of their own property, and all such excess is private property taken for public use without just compensation."
"The whole theory of local taxation or assessments is that the improvements for which they are levied afford a remuneration in the way of benefits. A law which would attempt to make one person, or a given number of persons, under the guise of local assessments, pay a general revenue for the public at large would not be an exercise of the taxing power, but an act of confiscation."
See also Zoeller v. Kellogg, 4 Mo.App. 163.
In State &c. v. Hoboken, 36 N.J.L. 293, which was the case of the improvement of a street and a special assessment to meet the cost, such cost being in excess of the benefits received by the property owner, it was held that, to the extent of such excess, private property was taken for public use without compensation because that received by the landowner was not equal to that taken from him.
compensation in respect of the land taken for the street, for by opening the street at his own cost, he might save at least the expense attending formal proceedings of condemnation. It cannot be that any such result is consistent with the principles upon which rests the power to make special assessments upon property in order to meet the expense of public improvements in the vicinity of such property.
The views we have expressed are supported by other adjudged cases as well as by reason and by the principles which must be recognized as essential for the protection of private property against the arbitrary action of government. The importance of the question before us renders it appropriate to refer to some of those cases.
line which is the boundary between acts of taxation and acts of confiscation. I think it impossible to assert with the least show of reason that the legislative right to select the subject of taxation is not a limited right. For it would seem much more in accordance with correct theory to maintain that the power of selection of the property to be taxed cannot be contracted to narrower bounds than the political district within which it is to operate than that such power is entirely illimitable. If such prerogative has no trammel or circumscription, then it follows that the entire burthen of one of these public improvements can be placed by the force of the legislative will on the property of a few enumerated citizens, or even on that of a single citizen. In a government in which the legislative power is not omnipotent, and in which it is a fundamental axiom that private property cannot be taken without just compensation, the existence of an unlimited right in the lawmaking power to concentrate the burthen of a tax upon specified property does not exist. If a statute should direct a certain street in a city to be paved, and the expense of such paving to be assessed on the houses standing at the four corners of such street, this would not be an act of taxation, and it is presumed that no one would assert it to be such. If this cannot be maintained, then it follows that it is conceded that the legislative power in question is not completely arbitrary. It has its limit, and the only inquiry is where that limit is to be placed."
both on moral and legal grounds. And yet there is no difference between such an extortion and the requisition upon a landowner to pay for a public improvement over and above the exceptive benefit received by him. It is true that the power of taxing is one of the high and indispensable prerogatives of the government, and it can be only in cases free from all doubt that its exercise can be declared by the courts to be illegal. But such a case, if it can ever arise, is certainly presented when a property is specified out of which a public improvement is to be paid for in excess of the value specially imparted to it by such improvement. As to such excess, I cannot distinguish an act exacting its payment from the exercise of the power of eminent domain. In case of taxation, the citizen pays his quota of the common burthen. When his land is sequestered for the public use, he contributes more than such quota, and this is the distinction between the effect of the exercise of the taxing power and that of eminent domain. When then, the overplus beyond benefits from these local improvements is laid upon a few landowners, such citizens, with respect to such overplus, are required to defray more than their share of the public outlay, and the coercive act is not within the proper scope of the power to tax."
"The sum of the expense is ordered to be put on certain designated property, without regard to the proportion of benefit it has received from the improvement. The direction is perfectly clear. The entire burthen is to be borne by the land along the line of the improvement, and the ratio of distribution among the respective lots is left to the judgment of the common council. Such a power, according to legal rules now at rest in this state, cannot be executed. The whole clause is nugatory and void, and all proceedings under it are not mere irregularities, but are nullities. "
"all fall strictly within the rule as originally enunciated -- local taxation for local purposes -- or, as it has been elsewhere expressed, taxation on the benefits conferred, and not beyond the extent of those benefits. . . . If the sovereign breaks open the strong box of an individual or corporation and takes out money, or if, not being paid on demand, he seizes and sells the land or goods of the subject, it looks to me very much like a direct taking of private property for public use. It certainly cannot alter the case to call it 'taxation.' Whenever a local assessment upon an individual is not grounded upon and measured by the extent of his particular benefit, it is, pro tanto, a taking of his private property for public use without any provision for compensation."
"The act in question made no express allusion to assessment on account of benefit; neither does it limit the assessment to the amount of benefit; yet, as we have seen, the right to assess at all depends solely on benefit, and must be proportioned to, and limited by, it. An improvement might cost double the benefit to the land specially benefited."
"It is generally agreed that an assessment levied without regard to actual or probable benefits is unlawful, as constituting an attempt to appropriate private property to public uses. This idea is strongly stated in Tide-Water Co. v. Coster, 18 N.J.Eq. (3 C. E. Green) 519, which has often been cited with approval in other cases. It is admitted that the legislature may prescribe the rule for the apportionment of benefits, but it is not conceded that its power in this regard is unlimited. The rule must at least be one which it is legally possible may be just and equal as between the parties assessed. If it is not conceivable that the rule prescribed is one which will apportion the burden justly, or with such proximate justice as is usually attainable in tax cases, it must fall to the ground like any other merely arbitrary action which is supported by no principle."
"Where lands are improved by legislative action on the ground of public utility, the cost of such improvement, it has frequently been held, may, to a certain degree, be imposed on the parties who, in consequence of owning the lands in the vicinity of such improvement, receive a peculiar advantage. By the operation of such a system it is not considered that the property of the individual, or any part of it, is taken from him for the public use, because he is compensated in the enhanced value of such property. But it is clear this principle is only applicable when the benefit is commensurate to the burden,-when that which is received by the landowner is equal or superior in value to the sum exacted; for, if the sum exacted be in excess, then, to that extent, most incontestably, private property is assumed by the public. Nor, as to this excess, can it be successfully maintained that such imposition is legitimate, as an exercise of the power of taxation. Such an imposition has none of the essential characteristics of a tax. We are to bear in mind that this projected improvement is to be regarded as one in which the public has an interest. The owners of these lands have a special concern in such improvements, so far as particular lands will be in a peculiar manner benefited.
Beyond this, their situation is like the rest of the community. The consideration for the excess of the cost of improvement over the enhancement of the property within the operation of the act is the public benefit. The expenditure of this portion of the cost of the work can only be justified on the ground of benefit to the public. I am aware of no principle that will permit the expense incurred in conferring such benefit on the public to be laid in the form of a tax on individuals."
"Special benefits to the property assessed -- that is, benefits received by it in addition to those received by the community at large -- are the true and only just foundation upon which local assessments can rest, and to the extent of special benefits, it is everywhere admitted that the legislature may authorize local taxes or assessments to be made."
"When not restrained by the Constitution of the particular state, the legislature has a discretion, commensurate with the broad domain of legislative power, in making provisions for ascertaining what property is specially benefited, and how the benefits shall be apportioned. This proposition, as stated, is nowhere denied. But the adjudged cases do not agree upon the extent of legislative power."
"the decided tendency of the later decisions, including those of the courts of New Jersey, Michigan, and Pennsylvania, is to hold that the legislative power is not unlimited, and that these assessments must be apportioned by some rule capable of producing reasonable equality, and that provisions of such a nature as to make it legally impossible that the burden can be apportioned with proximate equality are arbitrary exactions, and not an exercise of legislative authority."
"Whether it is competent for the legislature to declare that no part of the expense of a local improvement of a public nature shall be borne by a general tax, and that the whole of it shall be assessed upon the abutting property and other property in the vicinity of the improvement, thus for itself conclusively determining, not only that such property is specially benefited, but that it is thus benefited to the extent of the cost of the improvement, and then to provide for the apportionment of the amount by an estimate to be made by designated boards or officers, or by frontage or superficial area, is a question upon which the courts are not agreed. Almost all of the earlier cases asserted that the legislative discretion in the apportionment of public burdens extended this far, and such legislation is still upheld in most of the states. But since the period when express provisions have been made in many of the state constitutions requiring uniformity and equality of taxation, several courts of great respectability, either by force of this requirement, or in the spirit of it, and perceiving that special benefit actually received by each parcel of contributing property was the only principle upon which such assessments can justly rest, and that any other rule is unequal, oppressive, and arbitrary, have denied the unlimited scope of legislative discretion and power and asserted what must, upon principle, be regarded as the just and reasonable doctrine that the cost of a local improvement can be assessed upon particular property only to the extent that it is specially and peculiarly benefited, and, since the excess beyond that is a benefit to the municipality at large, it must be borne by the general treasury."
"The mischief which existed under the old constitution was that the benefits which were common to his neighbors, without charge, were deducted from the price paid to the owner of land taken. The evil might well be denominated inequality of benefits and burdens among adjoining landowners. You paid for the owner's land in privileges, and left him still liable, equally with his neighbors whose lands were untaken, to any and all local assessments that might afterwards be imposed. This was unequal, and therefore deemed unjust. Experience proved, moreover, that it led to much abuse of the power of condemnation. A full remedy is to be found for these evils in the provision in question, without at all making it to interfere with the power of assessment. Construed thus, it is in perfect accordance with the leading principle of taxation in the new constitution -- uniformity and equality of burdens. It simply guaranties to the owner of land condemned a full price. When that is paid, he stands on a perfect equality with all other owners of adjoining lands -- equally liable, as he ought to be, to be taxed upon his other lands with them. He has the full price of his land in his pocket, and is an equal participant with them in benefits to adjoining lands. To throw the whole burden upon the others in such a case would be to do them the precise injustice which was done to him under the old constitution. To do so would be to avoid one evil only to run into another. It would be to avoid the evil of withholding from him a full and fair price for his land, only to run into the equal evil of paying him two prices for it, the second price being at the expense of his neighbors."
If the principles announced by the authorities above cited be applied to the present case, the result must be an affirmance of the judgment.
"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,"
"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."
It thus appears that the statute authorizes a special assessment upon the bounding and abutting property by the front foot for the entire cost and expense of the improvement, without taking special benefits into account. And that was the method pursued by the Village of Norwood. The corporation manifestly proceeded upon the theory that the abutting property could be made to bear the whole cost of the improvement, whether such property was benefited or not to the extent of such cost.
abutting property, irrespective of special benefits. The assessment was by the front foot, and for a specific sum representing such cost, and that sum could not have been reduced under the ordinance of the village even if proof had been made that the costs and expenses assessed upon the abutting property exceeded the special benefits. 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.
"We have announced more than once that it is the established rule of this Court that no one can be permitted to go into a court of equity to enjoin the collection of a tax until he has shown himself entitled to the aid of the court by paying so much of the tax assessed against him as it can be plainly seen he ought to pay; that he shall not be permitted, because his tax is in excess of what is just and lawful, to screen himself from paying any tax at all until the precise amount which he ought to pay is ascertained by a court of equity, and that the owner of property liable to taxation is bound to contribute his lawful share to the current expenses of government, and cannot throw that share on others while he engages in an expensive and protracted litigation to ascertain that the amount which he is assessed is or is not a few dollars more than it ought to be, but that, before he asks this exact and scrupulous justice, he must first do equity by paying so much as it is clear he ought to pay, and contest and delay only the remainder. State Railroad Tax Cases, 92 U. S. 575."
The same principle was announced in Northern Pacific Railroad v. Clark, 153 U. S. 252, 153 U. S. 272.
"But the statute of the state expressly declares that suits may be brought to enjoin the illegal levy of taxes and assessments, or the collection of them. § 5858 of the Revised Statutes of Ohio, 1880; vol. liii, Laws of Ohio 178, §§ 1, 2. And though we have repeatedly decided in this Court that the statute of a state cannot control the mode of procedure in equity cases in federal courts nor deprive them of their separate equity jurisdiction, we have also held that where a statute of a state created a new right or provided a new remedy, the federal courts will enforce that right either on the common law or equity 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."
"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.
"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."
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 her 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.
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.
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."
"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.
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 void 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."
"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, and it is so ordered.
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. United States, 147 U. S. 282, 147 U. S. 302; Bauman v. Ross, 167 U. S. 548.
3. The cost of this improvement was settled in judicial proceedings to which the defendant in error was a party, and, having received the amount of the award, she is estopped to deny that the cost was properly ascertained.
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."
"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 County v. Kimball, 102 U. S. 691, 102 U. S. 703-704; Hagar v. Reclamation District, 111 U. S. 701."
Parsons v. District of Columbia, 170 U. S. 45, 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.
"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 one hundred 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.
"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.
"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 percent; the first installment being $354.97, and the last or tenth installment $235.17, lessening the same from year to year in an amount of about $13 per annum."
"That is to say, the said defendant corporation has undertaken to take 300 by 50 feet of this complainant's property, and, fixing the valuation upon it by proceedings at law, now undertakes to asses upon the complainant's adjacent property 300 feet upon each side, the said $2,000, the value of the same as adjudged by the court in the said condemnation proceedings, with all of the costs incidental thereto, including counsel and witness fees, so that, in effect, the property of this complainant has been taken and is sought to be taken by the defendant corporation for the uses of itself and the general public without any compensation in fact to the complainant therefor, but at an actual expense and outlay in addition -- that is to say, the corporation purposes by assessment to make this complainant not only pay for her own property taken for the benefit of the defendant, but also to pay the costs of so taking it without compensation. "
"Wherefore she invokes her remedy given her by statute by injunction. She avers that the said seizure and taking of her said property, and the pretended condemnation of the same, and assessment of the same, with added costs, back upon her own property for the benefit of the defendant corporation and the general public, is a seizure of her property without compensation -- not only that, but at costs to her, besides, in that the defendants have undertaken to make her pay for the taking of her property without a compensation, in addition to the value of the property, and that she is without remedy and powerless unless she may have and invoke the equitable interference, as the statute authorizes her, of this honorable court."
that, being prima facie void, the owner of any property so abutting on the improvement may obtain a decree of a court of equity cancelling in toto the assessment, without denying that his property is benefited by the improvement, or paying, or offering to pay, or expressing a willingness to pay, any sum which may be a legitimate charge upon the property for the value of the benefit to it by such improvement.
In this case, no tender was made of any sum, no offer to pay the amount properly chargeable for benefits, there was no allegation or testimony that the legislative judgment as to the area benefited, or the amount of the benefit, was incorrect, or that property was also benefited, and the opinion goes to the extent of holding that the legislative determination is not only not conclusive, but also is not even prima facie sufficient, and that in all cases there must be a judicial inquiry as to the area in fact benefited. We have often held the contrary, and, I think, should adhere to those oft-repeated rulings.
MR. JUSTICE GRAY and MR. JUSTICE SHIRAS also dissent.


text:
346.65(6)(e)2. 2. To pay the law enforcement agency that arrested the violator for the costs of the arrest, investigation and prosecution.
346.65(6)(e)3. 3. To pay the district attorney's costs of prosecution.
346.65(6)(e)4. 4. To pay the court costs related to the prosecution.
346.65(6)(em)1. 1. To pay the primary lienholder for the amount of the lien, plus costs incurred in selling the vehicle.
346.65(6)(em)2. 2. To pay any other lienholder of record for the amount of the lien.
346.65(6)(em)3. 3. To pay any balance remaining to the law enforcement officer for distribution under pars. (e), (f) and (g).
346.65(6)(f) (f) If a motor vehicle forfeited and sold under this subsection is owned in whole or in part by a person other than the person who committed the violation under par. (a), any moneys remaining from the sale, after making any payment to the lienholders under par. (em) and as provided in par. (e) 1. to 4., shall be paid to that person to the extent of the person's interest in the motor vehicle.
346.65(6)(g) (g) Any balance remaining from the proceeds of the sale of the motor vehicle after the distribution under par. (f) shall be deposited in the school fund.
346.65(6)(h) (h) After a determination is made that a motor vehicle seized is not subject to forfeiture, the agency having custody of the motor vehicle shall take reasonable steps to notify the owner or other person in charge of the motor vehicle of the location of the motor vehicle and of his or her right to take possession of the motor vehicle.
346.65(6)(k) (k) Except as provided in par. (km), no person may transfer ownership of any motor vehicle that is subject to immobilization or seizure or to equipping with an ignition interlock device under this subsection or make application for a new certificate of title under s. 342.18 for the motor vehicle unless the court determines that the transfer is in good faith and not for the purpose of or with the effect of defeating the purposes of this subsection. The department may cancel a title or refuse to issue a new certificate of title in the name of the transferee as owner to any person who violates this paragraph.
346.65(6)(km) (km) If a person purchases a motor vehicle in good faith and without knowledge that the motor vehicle was subject to immobilization or seizure or to equipping with an ignition interlock device under this subsection and the department has no valid reason for not issuing a certificate of title other than the prohibition under par. (k), the department shall issue a new certificate of title in the name of the person requesting the new certificate of title if at the time of the purchase of the motor vehicle the certificate of title did not contain the notation stamped on the certificate of title by the clerk of circuit court under par. (a) 2m. and if the person submits the affidavit required under s. 342.12 (4) (c) 1. c.
346.65(6)(m) (m) The court may order a vehicle to be immobilized under this subsection for not more than the period that the person's operating privilege is revoked under s. 343.30 or 343.31. The court may order a vehicle to be equipped with an ignition interlock device under this subsection for not more than 2 years more than the period that the person's operating privilege is revoked under s. 343.30 or 343.31. If the court orders any motor vehicle immobilized or equipped with an ignition interlock device under this subsection, the owner shall be liable for the reasonable costs of the immobilization or the equipping of the ignition interlock device. If a motor vehicle that is immobilized is subject to a security agreement, the court shall release the motor vehicle to the secured party upon the filing of an affidavit by the secured party that the security agreement is in default and upon payment of the accrued cost of immobilizing the motor vehicle.
346.65(7) (7) A person convicted under sub. (2) (b), (c), (d) or (e) or (2j) (b) or (c) shall be required to remain in the county jail for not less than a 48-consecutive-hour period.
346.65 History History: 1971 c. 278; 1973 c. 218; 1977 c. 193; 1979 c. 221; 1981 c. 20; 1985 a. 80, 337; 1987 a. 3, 27, 398, 399; 1989 a. 105, 176, 271; 1991 a. 39, 251, 277, 315; 1993 a. 198, 317, 475; 1995 a. 44, 338, 359, 425; 1997 a. 27, 135, 199, 237, 277, 283, 295; s. 13.93 (2) (c).
346.65 Annotation Penalty provisions of (2) (a) are mandatory and apply to violations committed prior to conviction for 1st offense within 5-year period. State v. Banks, 105 W (2d) 32, 313 NW (2d) 67 (1981).
346.65 Annotation See note to Art. I, sec. 7, citing State v. Novak, 107 W (2d) 31, 318 NW (2d) 364 (1982).
346.65 Annotation State has exclusive jurisdiction over second offense for drunk driving. County of Walworth v. Rohner, 108 W (2d) 713, 324 NW (2d) 682 (1982).
346.65 Annotation Under (3), fine is mandatory but jail sentence is discretionary. State v. McKenzie, 139 W (2d) 171, 407 NW (2d) 274 (Ct. App. 1987).
346.65 Annotation Term of probation with condition of 30-day confinement in county jail is inadequate to meet mandatory imprisonment requirement of (2) (c). State v. Meddaugh, 148 W (2d) 204, 435 NW (2d) 269 (Ct. App. 1988).
346.65 Annotation A judgment entered in municipal court against a defendant for what is actually a second or subsequent offense is null and void. The state may proceed against the defendant criminally regardless of whether the judgment in municipal court is vacated. City of Kenosha v. Jensen, 184 W (2d) 91, 516 NW (2d) 4 (Ct. App. 1994).
346.65 Annotation The general requirements for establishing prior criminal offenses in s. 973.12 are not applicable to the penalty enhancement provisions for drunk driving offenses under sub. (2). There is no presumption of innocence accruing to the defendant as to prior convictions, but the accused must have an opportunity to challenge the existence of the prior offense. State v. Wideman, 206 W (2d) 90, 556 NW (2d) 737 (1996).
346.65 Annotation Sub. (2) is primarily a penalty enhancement statute. Where a prior conviction is established to be constitutionally defective, that conviction cannot be relied on for either charging or sentencing a present offense. State v. Foust, 214 W (2d) 567, 570 NW (2d) 905 (Ct. App. 1997).
346.65 Annotation Seizure and forfeiture under sub. (6) of a vehicle used in the commission of the crime is an in rem civil forfeiture to which the constitution's double jeopardy clause is inapplicable. State v. Konrath, 218 W (2d) 290, 577 NW (2d) 601 (1998).
346.65 Annotation Where person is charged under 346.63 (1) as second offense, charge may not be reduced to violation as first offense and court may not sentence under 346.65 (2) (a) 1. Department must treat this as second offense for purposes of revocation under 343.31 (1) (b). 69 Atty. Gen. 47.
346.65 Annotation Uncounseled civil forfeiture conviction may provide basis for criminal penalties for subsequent offense. Schindler v. Clerk of Circuit Court, 715 F (2d) 341 (1983).
346.655(1) (1) On or after July 1, 1988, if a court imposes a fine or a forfeiture for a violation of s. 346.63 (1) or (5), or a local ordinance in conformity therewith, or s. 346.63 (2) or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, it shall impose a driver improvement surcharge in an amount of $340 in addition to the fine or forfeiture, penalty assessment, jail assessment and crime laboratories and drug law enforcement assessment.
346.655(2)(a)(a) Except as provided in par. (b), the clerk of court shall collect and transmit the amount under sub. (1) to the county treasurer as provided in s. 59.40 (2) (m). The county treasurer shall then make payment of 37.6% of the amount to the state treasurer as provided in s. 59.25 (3) (f) 2.
346.655(2)(b) (b) If the forfeiture is imposed by a municipal court, the court shall transmit the amount to the treasurer of the county, city, town or village, and that treasurer shall make payment of 37.6% of the amount to the state treasurer as provided in s. 66.12 (1) (b). The treasurer of the city, town or village shall transmit the remaining 62.4% of the amount to the treasurer of the county.
346.655(3) (3) All moneys collected from the driver improvement surcharge that are transmitted to the county treasurer under sub. (2) (a) or (b), except the amounts that the county treasurer is required to transmit to the state treasurer under sub. (2) (a) or (b), shall be retained by the county treasurer and disbursed to the county department under s. 51.42 for services under s. 51.42 for drivers referred through assessment.
346.655 History History: 1981 c. 20; 1981 c. 314; 1983 a. 27 s. 2202 (20); 1985 a. 29, 337; 1987 a. 3, 27, 399; 1989 a. 31, 105; 1991 a. 39; 1993 a. 16; 1995 a. 27, 201; 1997 a. 27.
346.655 AnnotationSee note to 345.47, citing 73 Atty. Gen. 24.
346.66 346.66 Applicability of sections relating to accidents and accident reporting. In addition to being applicable upon highways, ss. 346.67 to 346.70 are applicable upon all premises held out to the public for use of their motor vehicles, all premises provided by employers to employes for the use of their motor vehicles and all premises provided to tenants of rental housing in buildings of 4 or more units for the use of their motor vehicles, whether such premises are publicly or privately owned and whether or not a fee is charged for the use thereof. These sections do not apply to private parking areas at farms or single-family residences or to accidents involving only snowmobiles, all-terrain vehicles or vehicles propelled by human power or drawn by animals.
346.66 History History: 1971 c. 277; 1985 a. 29; 1995 a. 127.
346.665 346.665 Definition. In ss. 346.67 to 346.72, notwithstanding s. 340.01 (42), "owner" means, with respect to a vehicle that is registered, or required to be registered, by a lessee of the vehicle under ch. 341, the lessee of the vehicle.
346.67(1)(c) (c) The operator shall render to any person injured in such accident reasonable assistance, including the carrying, or the making of arrangements for the carrying, of such person to a physician, surgeon or hospital for medical or surgical treatment if it is apparent that such treatment is necessary or if such carrying is requested by the injured person.
346.67(2) (2) Any stop required under sub. (1) shall be made without obstructing traffic more than is necessary.
346.67 History History: 1991 a. 316; 1997 a. 258.
346.67 Annotation Violation of this section is felony. State ex rel. McDonald v. Douglas Cty. Cir. Ct. 100 W (2d) 569, 302 NW (2d) 462 (1981).
346.67 Annotation Elements of duty under this section discussed. State v. Lloyd, 104 W (2d) 49, 310 NW (2d) 617 (Ct. App. 1981).
346.67 Annotation Failure to stop and render aid to multiple victims of single accident may result in multiple charges without multiplicity defects arising. State v. Hartnek, 146 W (2d) 188, 430 NW (2d) 361 (Ct. App. 1988).
346.67 Annotation "Person injured" in sub. (1) (c) includes a person fatally injured. A subsequent determination of instantaneous death does not absolve a person of the duty to investigate whether assistance is possible. State v. Swatek, 178 W (2d) 1, 502 NW (2d) 909 (Ct. App. 1993).
346.68 346.68 Duty upon striking unattended vehicle. The operator of any vehicle which collides with any vehicle which is unattended shall immediately stop and either locate and notify the operator or owner of such vehicle of the name and address of the operator and owner of the vehicle striking the unattended vehicle or leave in a conspicuous place in the vehicle struck, a written notice giving the name and address of the operator and of the owner of the vehicle doing the striking and a statement of the circumstances thereof. Any such stop shall be made without obstructing traffic more than is necessary.
346.68 History History: 1997 a. 258.
346.68 Annotation Driver's knowledge of collision with unattended vehicle need not be proved under this section. 68 Atty. Gen. 274.
346.69 346.69 Duty upon striking property on or adjacent to highway. The operator of any vehicle involved in an accident resulting only in damage to fixtures or other property legally upon or adjacent to a highway shall take reasonable steps to locate and notify the owner or person in charge of such property of such fact and of the operator's name and address and of the registration number of the vehicle the operator is driving and shall upon request and if available exhibit his or her operator's license and shall make report of such accident when and as required in s. 346.70.
346.69 History History: 1991 a. 316.
346.70 346.70 Duty to report accident.
346.70(1) (1) Immediate notice of accident. The operator of a vehicle involved in an accident resulting in injury to or death of any person, any damage to state or other government-owned property, except a state or other government-owned vehicle, to an apparent extent of $200 or more or total damage to property owned by any one person or to a state or other government-owned vehicle to an apparent extent of $1,000 or more shall immediately by the quickest means of communication give notice of such accident to the police department, the sheriff's department or the traffic department of the county or municipality in which the accident occurred or to a state traffic patrol officer. In this subsection, "injury" means injury to a person of a physical nature resulting in death or the need of first aid or attention by a physician or surgeon, whether or not first aid or medical or surgical treatment was actually received; "total damage to property owned by one person" means the sum total cost of putting the property damaged in the condition it was before the accident, if repair thereof is practical, and if not practical, the sum total cost of replacing such property. For purposes of this subsection if any property which is damaged is held in a form of joint or multiple ownership, the property shall be considered to be owned by one person.
346.70(2) (2) Written report of accident. Unless a report is made under sub. (4) by a law enforcement agency, within 10 days after an accident of the type described in sub. (1), the operator of a vehicle involved in the accident shall forward a written report of the accident to the department. The department may accept or require a report of the accident to be filed by an occupant or the owner in lieu of a report from the operator. Every accident report required to be made in writing shall be made on the appropriate form approved by the department and shall contain all of the information required therein unless not available. The report shall include information sufficient to enable the department to determine whether the requirements for deposit of security under s. 344.14 are inapplicable by reason of the existence of insurance or other exceptions specified in ch. 344.
346.70(3) (3) Who to report when operator unable. Whenever the operator of a vehicle is physically incapable of giving the notice and making the report required by subs. (1) and (2), the owner of the vehicle involved in the accident shall give the notice and make the report required by subs. (1) and (2). If the owner of the vehicle is physically or mentally incapable of giving the notice and making the report required by subs. (1) and (2), and if there was another occupant in the vehicle at the time of the accident capable of giving the notice and making the report, the occupant shall give the notice and make the report.
346.70(3m) (3m) Duty of department with respect to accident reports.
346.70(3m)(a)(a) The department may require any operator, occupant or owner of a vehicle involved in an accident of which report must be made as provided in s. 346.70 to file supplemental reports whenever the original report is insufficient in the opinion of the department and may require witnesses of accidents to render reports to the department.
346.70(3m)(b) (b) The department shall tabulate and may analyze all accident reports and shall publish annually or at more frequent intervals statistical information based thereon as to the number and circumstances of traffic accidents.
346.70(3m)(c) (c) The department shall prepare and supply at its own expense to police departments, coroners, sheriffs and other suitable agencies or individuals, forms or an automated format for accident reports required to be made to the department. Any report forms and automated format shall call for sufficiently detailed information to disclose with reference to a traffic accident the cause, conditions then existing, and the persons and vehicles involved.
346.70(4) (4) Police and traffic agencies to report.
346.70(4)(a)(a) Every law enforcement agency investigating or receiving a report of a traffic accident as described in sub. (1) shall forward an original written report of the accident or a report of the accident in an automated format to the department within 10 days after the date of the accident.
346.70(4)(b) (b) The reports shall be made on a uniform traffic accident report form or in an automated format prescribed by the secretary. The uniform traffic accident report form shall be supplied by the secretary in sufficient quantities to meet the requirements of the department and the law enforcement agency.
346.70(4)(f) (f) Notwithstanding s. 346.73, any person may with proper care, during office hours, and subject to such orders or regulations as the custodian thereof prescribes, examine or copy such uniform traffic accident reports, including supplemental or additional reports, statements of witnesses, photographs and diagrams, retained by local authorities, the state traffic patrol or any other investigating law enforcement agency.
346.70(4)(g) (g) The department, upon request of local enforcement agencies, shall make available to them compilations of data obtained from such reports.
346.70(4)(h) (h) Every law enforcement agency investigating or receiving a report of a traffic accident as described in sub. (1) shall forward a copy of the report of the accident to the county traffic safety commission or to the person designated to maintain spot maps under s. 83.013 (1) (a) in the county where the accident occurred when the accident occurred on a county or town road or on a street where the population of the city, village or town is less than 5,000. For traffic accidents occurring within a city or village with a population of 5,000 or more, the law enforcement agency investigating or receiving a report shall forward a copy of the report of the accident to the city or village where the accident occurred.
346.70(5) (5) Falsifying reports. No person shall falsely make and file or transmit any accident report or knowingly make a false statement in any accident report which is filed or transmitted pursuant to this section.
346.70 History History: 1975 c. 240, 381; 1977 c. 29 ss. 1486, 1654 (7) (a), (c); 1977 c. 100; 1979 c. 99; 1981 c. 20, 133, 314; 1985 a. 29; 1987 a. 211; 1993 a. 246, 437; 1995 a. 113.
346.70 Annotation See note to 19.35 citing State ex rel. Young v. Shaw, 165 W (2d) 276, 477 NW (2d) 340 (Ct. App. 1991).
346.70 Annotation A county sheriff's department is not a consumer reporting agency subject to the fair credit reporting act for reports under (4). However, the federal trade commission has taken an opposite position. 63 Atty. Gen. 364.
346.71 346.71 Coroners or medical examiners to report; require blood specimen.
346.71(1) (1) Every coroner or medical examiner shall, on or before the 10th day of each month, report in writing any accident involving a motor vehicle occurring within the coroner's or medical examiner's jurisdiction resulting in the death of any person during the preceding calendar month. If the accident involved an all-terrain vehicle, the report shall be made to the department of natural resources and shall include the information specified by that department. If the accident involved any other motor vehicle, the report shall be made to the department and shall include the information specified by the department. The coroner or medical examiner of the county where the death occurs, if the accident occurred in another jurisdiction, shall, immediately upon learning of the death, report it to the coroner or medical examiner of the county where the accident occurred, as provided in s. 979.01 (1).
346.71(2) (2) In cases of death involving a motor vehicle in which the decedent was the operator of a motor vehicle, a pedestrian 14 years of age or older or a bicycle operator 14 years of age or older and who died within 6 hours of the time of the accident, the coroner or medical examiner of the county where the death occurred shall require that a blood specimen of at least 10 cc. be withdrawn from the body of the decedent within 12 hours after his or her death, by the coroner or medical examiner or by a physician so designated by the coroner or medical examiner or by a qualified person at the direction of the physician. All funeral directors shall obtain a release from the coroner or medical examiner of the county where the accident occurred as provided in s. 979.01 (4) prior to proceeding with embalming any body coming under the scope of this section. The blood so drawn shall be forwarded to a laboratory approved by the department of health and family services for analysis of the alcoholic content of the blood specimen. The coroner or medical examiner causing the blood to be withdrawn shall be notified of the results of each analysis made and shall forward the results of each such analysis to the department of health and family services. If the death involved a motor vehicle, the department shall keep a record of all such examinations to be used for statistical purposes only and the department shall disseminate and make public the cumulative results of the examinations without identifying the individuals involved. If the death involved an all-terrain vehicle, the department of natural resources shall keep a record of all such examinations to be used for statistical purposes only and the department of natural resources shall disseminate and make public the cumulative results of the examinations without identifying the individuals involved.
346.71(3) (3) In a case of death involving a motor vehicle in which the accident and the death occur in different counties, the county where the death occurs may charge the county where the accident occurs a reasonable fee for withdrawing the blood specimen from the body of the decedent as required under sub. (2).
346.71 History History: 1973 c. 272; 1977 c. 29 s. 1654 (7) (a); 1977 c. 273; 1983 a. 485; 1985 a. 29; 1987 a. 302; 1995 a. 27 s. 9126 (19).
346.71 Annotation Coroner's blood test records under (2) aren't confidential. Test results are presumptively accurate. Staples v. Glienke, 142 W (2d) 19, 416 NW (2d) 920 (Ct. App. 1987).
346.71 Annotation Under 346.71 (2), Stats. 1969, blood test records of the coroner are not confidential. The admissibility of such records is limited by 979.20 (3). 59 Atty. Gen. 226.
346.72 346.72 Garages to keep record of repairs of accident damage. The person in charge of any garage or repair shop to which is brought any motor vehicle which shows evidence of having been involved in an accident shall keep a record of the date such vehicle is brought in and the nature of the repair, the name and address of the owner, and the make, year and registration number of the vehicle. Such record shall be kept in the place of business during business hours and shall be open to inspection by any traffic officer. Shop records normally kept by garages and repair shops are adequate for the purpose of this section if they contain the information specified in this section.
346.73 346.73 Accident reports not to be used in trial. Notwithstanding s. 346.70 (4) (f), accident reports required to be filed with or transmitted to the department or a county or municipal authority shall not be used as evidence in any judicial trial, civil or criminal, arising out of an accident, except that such reports may be used as evidence in any administrative proceeding conducted by the department. The department shall furnish upon demand of any person who has or claims to have made such a report, or upon demand of any court, a certificate showing that a specified accident report has or has not been made to the department solely to prove a compliance or a failure to comply with the requirement that such a report be made to the department.
346.73 History History: 1971 c. 253; 1977 c. 29 s. 1654 (7) (a); 1993 a. 437.
346.74 346.74 Penalty for violating sections 346.67 to 346.73.
346.74(1)(1) Any person violating s. 346.72 may be required to forfeit not less than $20 nor more than $40 for the first offense and may be required to forfeit not less than $50 nor more than $100 for the 2nd or subsequent conviction within a year.
This is an archival version of the Wis. Stats. database for 1997. See Are the Statutes on this Website Official?

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