pointed for the public improvement which is authorized. In such cases the statute indicates the principle on which the local officers are to ascertain the limits of the district in such expressions, as on all the real estate "benefited," on all in the "vicinity," on "adjoining property," or some similar expression. When the expense is to be assessed on all the property "benefited," the council, in their discretion, may so fix the limits of the district that it may end in the middle of a block; it is not necessary to include the whole of a street in one district.1 So if the power be to assess on property in "vicinity," if the report of assessors shows that certain lots are benefited to a certain amount, it would be a valid exercise of the power; the term does not denote a definite distance from the street improved. But the power, like all other powers delegated to local officers, is strictly construed. The power to grade and pave a street, and assess the expense of the improvement upon the property "adjoining," does not give authority to assess any property not on that street, and the etymological meaning of the word, which is touching or contiguous, is not to be extended.3 Where power is given to aldermen of a city to construct sidewalks "in any street," and to assess the expense on the abutters in just proportions, the abutters on each street improved must be assessed separately for the expense of that street. Two streets cannot be included in one district, but each is to be assessed according to its own special circumstances. In making an assessment for drainage, in proportion to benefits, the local officers were not permitted to pass beyond a county line without an express delegation of power for that purpose."

How Expense Apportioned.-Upon this subject there is much apparent conflict of authority, but I think it more apparent than real. Primarily the purpose being a public one which justifies the tax, it should be imposed on the whole State, but for the more convenient administration of the government, the State is divided into counties, cities, towns or townships, school districts, or road districts, and for the purpose of defraying the expense of these local governments, to whom is intrusted certain powers of government, a tax is laid within the local districts. The erection of a court house or jail, the construction of a road, the building of a school house, and the establishment of a school, at once strike us as being public or governmental purposes,

1 Creighton v. Scott, 14 Ohio, N. S. 438; Brevoort v. Detroit, 24 Mich. 322.

2 Extension of Hancock Street, 18 Penn. St. 26.

3 In the Matter of Ward, 52 N. Y. 395, 397.

4 Arnold v. Cambridge, 106 Mass. 352.

Turpin v. Eagle Creek, 48 Ind. 45; see also Appeal of Powers, 29 Mich. 504; Hoyt v. East Saginaw, 19 Mich. 39.

and we also readily perceive that the inhabitants of the particular district receive a benefit from such public institutions, more direct and greater in degree than the inhabitants of other parts of the State. That the local district should bear the expense of such improvements or institutions seems eminently just and proper, and is clearly within the powers of the legislature. So where we are told that a street is to be opened or paved, and the expense is to be laid upon real estate benefited, we are inclined to believe that the same principle is involved. The same principle is indeed involved, but it is modified to a certain extent. The inhabitants of a school district are benefited by the school, and all the property and persons in the district are taxed just as they would be for State taxation; but in the case of the street, the tax is not imposed on all the persons and property in the district of the street. Why not? Are not the inhabitants of that district more directly benefited than the inhabitants of other parts of the State or city? They use it more. There is but one answer to the question. In the theory of local assessments the benefit received is not of the same kind as the benefit contemplated in taxing a county or school district. In the latter cases, the benefit inures to all the inhabitants; in the local assessment it is a benefit not to persons but to land. Such a benefit must necessarily be a pecuniary benefit to the land adjacent to the improvement, arising from increased facilities for travel, which increase the market value of the land; and if this be the character of the benefit, then the conclusion follows irresistibly that the tax ought to be only to the extent of the benefit; beyond that benefit or increased value the owner of the land receives no more. benefit from the improvement than any other inhabitant of the city. This is in accord with the universally recognized theory of local assessments, and these are a class of cases which require the practice and theory to be consistent. These cases, while admitting the almost unlimited power of the legislature in apportioning the burden of taxation, and sustaining acts which authorize local assessments according to benefits, claim that there is a limit to this power, that there is a difference between acts of confisca tion and acts of taxation. Where the legislature created a corporation to drain a large body of marsh land, and authorized them to make contracts with commissioners appointed by the legislature, and the commissioners were directed to assess upon the land reclaimed the whole of the contract price, the court deemed the purpose a public one such as justified the exercise of the taxing power, but declared the act void, because the whole expense was placed on the land to be reclaimed, asserting the principle that to the extent that the owner of the land was locally and exceptionally benefited over and above the

ordinary benefit which as one of the community he receives in all public improvements, he might be assessed, and to that extent only; and that the cost of such improvement beyond such benefit should be levied on the public at large. So where a street is authorized to be paved, two-thirds of the expense to be assessed on the property abutting on the street, and the remaining third on the public at large, the act was considered liable to the same objection. It was considered an arbitrary imposition of a public burden on the property of a specified number of persons, without reference to the benefit which they received from the improvement. These cases assert the true doctrine on the subject. If the legislature has the power to place on particular property the burden of a public improvement, without reference to the benefit received by it, then there is no limit to its power; it may impose the expense of paving a street on the land at the corners of the street, or the paving of a street in one part of the city may be placed wholly on property on another street. But no one is prepared to concede to the legislature in this country such arbitrary powers. It is conceded that there is some limit; where is that limit? We have endeavored to mark out the limits of the power of apportionment in a former part of this treatise; and to local assessments the limit clearly appears to be the benefit received. Any tax beyond that is an exaction from the owner of more than his just share of the public burden. It ceases to be taxation, and becomes a taking of private. property for public use without just compensation. In a recent case this doctrine was enforced. In 1868, Conally performed work in opening streets, under a contract with the city of San Francisco, which, for some reason, was invalid. In 1870, the legislature passed an act directing the damages for land taken in opening Market street, and the amount of Conally's claim for work in opening the street to be assessed on the lot owners in that street. The claim of Conally was said to be one affecting the public conscience, and under the large power possessed by the legislature to apportion the tax, a levy might have been made on all property in the city. But it could not be laid on this specific property. "A local assessment is an equivalent or compensation for the enhanced value which the property of the person has received for the improvements. 'Tis only because of spe

1 Tidewater Company v. Costar, 3 C. E. Green (N. J.) 519; Chicago v. Larned, 34 Ill. 203; State v. Newark, 3 Dutch. 190.

2 Mayor, &c. of Newark v. State, 13 Am. Law Reg. 441. This case states the doctrine with great clearness and force. See also Hundley v. Com'rs of Lincoln Park, 67 Ill. 559; People v. Common Council of Rochester, 54 N. Y. 507; State v. Village of Passaic, 36 N. J. Law, 382.

3

Ch. 3, especially § 39.

4 Ch. 3, § 30.

cific benefit that specific property is taxed for a specific purpose. The assessment on property is therefore laid with reference to the benefit which such property is supposed to receive from the expenditure of the money. This class of cases, where the theory and practice of local assessments are in accord, declare an act delegating the power to make local assessments to cities void, if the whole expense is directed to be placed on the land, or any arbitrary part of the expense, which would allow the land owner to be taxed otherwise than according to the benefit conferred on the land by the improvement.

§ 147. How Expense Apportioned by Legislature— Value.—In some States the expense is apportioned among the land holders in the designated district in proportion to the value of the lots in the district, and such a mode is valid and not in conflict with the principle of benefits conferred. In Dorgan v. Boston, the principle is distinctly recognized, that taxes imposed for a local purpose should be imposed on those chiefly and directly benefited by the execution of the proposed work, in proportion to the degree of benefit each will receive therefrom, and a tax so imposed was considered not to conflict with that provision of the Constitution that taxes should be proportionable and reasonable.

By the Acre.-This mode of assessment has been adopted in some States for apportioning the expense of constructing levees erected for the protection of lands subject to overflow. Such lands are considered as receiving a direct benefit from the construction of such public works, not received by other property of the district, and the distribution of the burden among those benefited according to acreage, is not thought to violate that large discretion vested in the legislature in apportioning taxation. And in Mississippi such assessments are thought valid when made in reference to benefits, whether the mode selected by the legislature is by the front foot, the value, or the acre.* In Daily v. Swope, two counties were included; the value of improved lands was fixed in one county at twenty dollars per acre, in the other at thirty dollars, timbered lands in one county at three dollars, and in the other at five dollars per acre, and a tax of two and one-half

In the Matter of Market Street, 49 Cal. 546; 31 Cal. 254.

? Downer v. Boston, 7 Cush. 277; Brewer v. Springfield, 97 Mass. 152; Creighton v. Scott, 14 Ohio, N. S. 438; Dorgan v. Boston, 12 Allen, 223, 334; People v. Whyler, 41 Cal. 351; Lockwood v. St. Louis, 24 Mo. 20.

3 Layton v. City of New Orleans, 12 La. Ann. 515; Yeatman v. Crandall, 11 La. Ann. 220; Bishop v. Marks, 15 La. Ann. 147; McGhee v. Matthias, 21 Ark. 40; Egyptian Levee Co. v. Hardin, 27 Mo. 495.

Williams v. Cammack, 27 Miss. 209; Alcorn v. Hamer, 38 Miss. 652; Daily v. Swope, 47 Miss. 367.

per cent. on the value of the lands in the district was imposed to pay the expense of the levee. It was said that when the legislature, in their discretion, has selected one of these modes, the courts cannot say that another mode would be more equitable in the distribution of the burden. So street assessments are sometimes made in proportion to the area of the lots lying on the street improved, and the mode is valid. But, on the other hand, the courts of Illinois hold that in a drainage act, if the lands are divided into classes, and a tax imposed of fifty, forty, and thirty cents per acre, according to the class, it is not valid, but is in violation of the principle of taxing according to the benefits conferred; and it is claimed, in Pennsylvania, that the principle of local assessments cannot be applied to agricultural lands, for the purpose of defraying the expense of constructing a turnpike.3

Expense of Work Opposite the Lot. This is another mode adopted for apportioning the expense of the improvement of a street. The only court that sustains this mode is that of Iowa. The principle on which it proceeds is that the special participation in the benefits of a particular tax on the part of the tax-payer has nothing to do with the right to impose the tax; that the object of taxation, the improvement of the street, is a public object; that in the system of taxing abutting lots with the expense of the work done opposite the lots, in its practical application, each lot secures such a just and fair distribution of the burden as to be within the rule requiring uniformity of taxation. It is a question of power, not of benefit. The weight of authority is against the Iowa courts, and except in a perfectly level country a more arbitrary system could not be well imagined.5

Front Foot.-Another mode often adopted, is to impose the burden of opening or paving a street on the lots fronting on the street, in proportion to the number of lineal feet on the line of the street, without reference to the depth of the lot, or its value. This system is held in a number of States to be a valid mode of exercising the power of apportioning the expense of constructing such improvements. It is not such an unequal mode, that the courts can say that it is a taking of private property for public use without just compen

1 Clapp v. Hartford, 35 Conn. 66; Hines v. Leavenworth, 3 Kansas, 186.

? Lee v. Ruggles, 62 Ill. 427; People ex rel. Parker v. The County Court of Jefferson Co. 55 N. Y. 604.

4 Warren v. Henly, 31 Iowa, 38; Morrison v. Hershire, 32 Iowa, 271.

Woodbridge v. Detroit, 8 Mich. 274;. Motz v. Detroit, 18 Mich. 495; State v. Port

age, 12 Wis. 562; Norfolk City v. Ellis, 26 Gratt. 224.