and benefits those who are exempt from the burden." 31 Whether a given improvement is expedient and necessary, and whether it is general or local, are legislative questions; and when the municipality is vested with power to determine them the municipal decision is conclusive, and not subject to review by the courts. This general doctrine is modified by decisions in some states that there may be judicial inquiry on charge of fraud, mistake, oppression, or corruption, and, if sustained, the court may vacate the municipal ordinance or enjoin the work of improvement. It has also been held that similar remedies may be employed in cases where local assessment has been made for what is obviously a work of general municipal improvement; and it is established law that such remedies may be resorted to when the special assessment is not authorized by statute, or is made without compliance with the statutory conditions precedent. Where discretion is to be exercised by any tribunal in determining whether a special assessment shall be levied, or what portion shall be imposed upon particular property, each owner is entitled, under constitutional guaranty of due process of law, to such notice as will enable him to challenge the expediency of the improvement or the justice of the levy. Local assessment is obviously an exercise of the taxing power; and yet such assessments have generally been held not to come within the meaning of the word "taxation" as used in clauses of revenue stat 31 Lockwood v. St. Louis, 24 Mo. 20. utes exempting certain property from taxation. For example, "all public taxes" has been held not to embrace local assessments; so also of the phrases "rates and assessments"; "taxation of every kind”; "taxation of every description"; "all taxes, either state, parish, or city"; "all and every county, road, city, and school tax"; "taxes of every kind”; "charges and impositions"; "any tax or public imposition whatever"; "taxes, charges and impositions." In short, exemption from general taxation does not exempt from local assessment. 74. Collection of same.-Special assessments, being charges upon particular property, may be collected by enforcing the lien on the property in the method prescribed by the statute. In some states they have been held to afford ground for personal judgment against the property-owner; but the weight of authority, as well as the reason of the matter, opposes such remedy for the enforcement of a special assessment. No valid lien exists unless the assessment has been made in substantial compliance with the provisions of the enabling act. When these have been complied with, the lien becomes fixed in favor of the city, and is not impaired by official misconduct or defective performance in the work of improvement. The power of the legislature to declare a local assessment to be a personal charge against the owner as well as a lien upon his property has been strenuously contested in many states, while in others it has been allowed to pass unchallenged. In a recent Alaska case it was held that abutting property-own ers who had petitioned the city for a specific street improvement, and had seen the improvement made in accordance with their petition in front of their property, were liable to the municipality for the cost of the same in an action of assumpsit upon an implied contract for materials furnished and work and labor done.32 32 Town of Nome v. Lang, 1 Alaska 593. CHAPTER V. POLICE POWERS AND PUBLIC HIGHWAYS. 75. Police power inherent.-The police power, inherent in the state as a paramount and inalienable attribute of sovereignty, is essential to a municipality as a public corporation. Says Blackstone: "The due regulation and domestic rule of the kingdom whereby the individuals of the state, like the members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood, and good manners, and to be decent, industrious, and inoffensive in their respective stations," 33 may be traced to the ancient maxim, "salus populi est suprema lex (the safety of the people is the supreme law)." It is the expression of that instinct of self-preservation inherent in every animate creature, and attributed as essential to all nations, states, and corporations. This extraordinary and dangerous power is institutional and inherent in government; and, as wisely remarked by Chief Justice Shaw, "it is much easier to perceive and realize the existence and source of this power than to mark its boundaries or prescribe limits to its exercise." 34 Its summary exercise is always perilous to private right, and often cruelly unjust; as when in emergency, ap 33 4 Bl. Comm. 162. 34 Commonwealth v. Alger, 7 Cush. 53 (Mass.). parent or real, the property of one is sacrificed for the protection of others, or one is deprived of his personal liberty for the supposed safety of the many. 76. Municipal attribute.-The police power may be delegated by the state to a municipal corporation as a public function to be exercised within proper limits for all appropriate municipal purposes. The extent of its exercise is always within the legislative control. The police power delegated may be total or partial, or it may be entirely withheld by the legislature from the municipality. It has been decided, however, in some cases that a certain measure of police power is one of the inherent or essential powers of a municipality, for which no legislative grant is necessary. It has been held that a city council cannot bind itself nor its successors by contract to a course of conduct or of municipal inaction derogatory to the police power delegated by the state to the municipality.35 77. Limitation of power.-Those powers conferred upon a municipal corporation, which, in their exercise, conduce to protect the public safety and health and promote the comfort and convenience of the citizens and the general welfare of the municipality, manifest the legislative intention in regard to the delegation of the police power to the municipality. The corporation boundaries usually mark the territorial limit for the exercise of the police power by the municipality; but in many instances, for the preservation of the public health especially, the municipality is granted police power beyond its 35 Davenport & Morris v. Richmond City, 81 Va. 636. |