* On the other hand, and on the like reasoning, it has [* 507] been held equally competent to make the street a taxing district, and assess the expense of the improvement upon the lots 27; McMasters v. Commonwealth, 3 Watts, 292; Allentown v. Henry, 73 Penn. St. 404; Weber v. Reinhard, 73 Penn. St. 370; Livingston v. New York, 8 Wend. 86; Wright v. Boston, 9 Cush. 233; Jones v. Boston, 104 Mass. 461; Nichols v. Bridgeport, 23 Conn. 189; Cone v. Hartford, 28 Conn. 363; Alexander v. Baltimore, 5 Gill, 383; Howard v. The Church, 18 Md. 451; Hoyt v. East Saginaw, 19 Mich. 39; Garrett v. St. Louis, 25 Mo. 505; Burnett v. Sacramento, 12 Cal. 76; La Fayette v. Fowler, 34 Ind. 140. The right to assess by benefits has been denied in South Carolina. State v. Charleston, 12 Rich. 702. The legislation in Ohio on the subject has authorized the cities and villages, in opening and improving streets, to assess the expense either upon the lots abutting on the street in proportion to the street front, or upon the lands in proportion to their assessed value. In a case where the former mode was resorted to, and an assessment made upon property owned by the Northern Indiana Railroad Company for its corporate purposes, Peck, J., thus states and answers an objection to the validity of the tax: "But it is said that assessments, as distinguished from general taxation, rest solely upon the idea of equivalents; a compensation proportioned to the special benefits derived from the improvement, and that, in the case at bar, the railroad company is not, and in the nature of things cannot be, in any degree benefited by the improvement. It is quite true that the right to impose such special taxes is based upon a presumed equivalent; but it by no means follows that there must be in fact such full equivalent in every instance, or that its absence will render the assessment invalid. The rule of apportionment, whether by the front foot or a percentage upon the assessed valuation must be uniform, affecting all the owners and all the property abutting on the street alike. One rule cannot be applied to one owner, and a different rule to another owner. One could not be assessed ten per cent, another five, another three, and another left altogether unassessed because he was not in fact benefited. It is manifest that the actual benefits resulting from the improvement may be as various almost as the number of the owners and the uses to which the property may be applied. No general rule, therefore, could be laid down which would do equal and exact justice to all. The legislature have not attempted so vain a thing, but have prescribed two different modes in which the assessment may be made, and left the city authorities free to adopt either. The mode adopted by the council becomes the statutory equivalent for the benefits conferred, although in fact the burden imposed may greatly preponderate. In such case, if no fraud intervene, and the assessment does not substantially exhaust the owner's interest in the land, his remedy would seem to be to procure, by a timely appeal to the city authorities, a reduction of the special assessment, and its imposition, in whole or in part, upon the public at large." Northern Indiana R. R. Co. v. Connelly, 10 Ohio, N. s. 159, 165. And see Howell v. Bristol, 8 Bush, 493. There are no constitutional objections to meeting the expense of repaving a street by local assessments that do not equally lie to such assessments for the first paving. Blount v. Janesville, 31 Wis. 648. in proportion to the frontage.1 Here also is apportionment by a rule which approximates to what is just, but which, like any other rule that can be applied, is only an approximation to absolute equality. But if, in the opinion of the legislature, it is the proper rule to apply to any particular case, the courts must enforce it. [* 508] * But a very different case is presented when the legislature undertakes to provide that each lot upon a street shall pay the whole expense of grading and paving the street along its front. For while in such a case there would be something having the outward appearance of apportionment, it requires but slight examination to discover that it is a deceptive semblance only, and that the measure of equality which the constitution requires is entirely wanting. If every lot owner is compelled to construct the street in front of his lot, his tax is neither increased nor diminished by the assessment upon his neighbors; nothing is divided or apportioned between him and them; and each particular lot is in fact arbitrarily made a taxing district, and charged with the whole expenditure therein, and thus apportionment 1 Williams v. Detroit, 2 Mich. 560; Northern Ind. R. R. Co. v. Connelly, 10 Ohio, N. s. 159; Lumsden v. Cross, 10 Wis. 282. And see St. Joseph v. O'Donoghue, 31 Mo. 345; Burnett v. Sacramento, 12 Cal. 76; Scoville v. Cleveland, 1 Ohio, N. s. 126; Hill v. Higdon, 5 Ohio, N. s. 243; Ernst v. Kunkle, 5 Ohio, N. s. 520; Hines v. Leavenworth, 3 Kan. 186; Magee v. Commonwealth, 46 Penn. St. 358; Wray v. Pittsburg, 46 Penn. St. 365; Palmer v. Stumph, 29 Ind. 329. In Hammett v. Philadelphia, 65 Penn. St. 146, s. c. 3 Am. Rep. 615, while the cases here cited are approved, it is denied that a street already laid out and in good condition can be taken and improved for a public drive or carriage-way at the expense of the adjacent owners; this not being an improvement for local but for general purposes. Compare Washington Avenue, 69 Penn. St. 353; s. c. 8 Am. Rep. 255; Allen v. Drew, 44 Vt. 174 (case of water-rents); Willard v. Presbury, 14 Wall. 676; Hoyt v. East Saginaw, 19 Mich. 39; s. c. 2 Am. Rep. 76; La Fayette v. Fowler, 34 Ind. 140; Chambers v. Satterlee, 40 Cal. 497; Bradley v. McAtee, 7 Bush, 667; s. c. 3 Am. Rep. 309. In Washington Avenue, 69 Penn. St. 353, s. c. 8 Am. Rep. 255, it is denied that this principle can be applied to the country and to farming lands. Agnew, J., says: "To apply it to the country, or to farm lands, would lead to such inequality and injustice as to deprive it of all soundness as a rule, or as a substitute for a fair and impartial valuation of benefits in pursuance of law; so that at the very first blush every one would pronounce it palpably unreasonable and unjust." The able opinion in this case is a very satisfactory and very thorough examination of the principles on which local assessments are supported. The case of Seely v. Pittsburg, 82 Penn. St. 360, is a case in principle similar to that last above cited. avoided. If the tax were for grading the street simply, those lots which were already at the established grade would escape altogether, while those on either side, which chanced to be above and below, must bear the whole burden, though no more benefited by the improvement than the others. It is evident, therefore, that a law for making assessments on this basis could not have in view such distribution of burdens in proportion to benefits as ought to be a cardinal idea in every tax law. It would be nakedly an arbitrary command of the law to each lot owner to construct the street in front of his lot at his own expense, according to a prescribed standard; and a power to issue such command could never be exercised by a constitutional government, unless we are at liberty to treat it as a police regulation, and place the duty to make the streets upon the same footing as that to keep the sidewalks free from obstruction and fit for passage. But any such idea is clearly inadmissible.3 1 In fact, lots above and below an established grade are usually less benefited by the grading than the others; because the improvement subjects them to new burdens, in order to bring the general surface to the grade of the street, which the others escape. 2 The case of Warren v. Henley, 31 Iowa, 38, is opposed to the reasoning of the text; but the learned Judge who delivers the opinion concedes that he is unable to support his conclusions on the authorities within his reach. See City of Lexington v. McQuillan's Heirs, 9 Dana, 513, and opinions of Campbell and Christiancy, JJ., in Woodbridge v. Detroit, 8 Mich. 274. The case of Weeks v. Milwaukee, 10 Wis. 258, seems to be contra. We quote from the opinion of the court by Paine, J. After stating the rule that uniformity in taxation implies equality in the burden, he proceeds: "The principle upon which these assessments rest is clearly destructive of this equality. It requires every lot owner to build whatever improvements the public In may require on the street in front of his lot, without reference to inequalities in the value of the lots, in the expense of constructing the improvements, or to the question whether the lot is injured or benefited by their construction. Corner lots are required to construct and keep in repair three times as much as other lots; and yet it is well known that the difference in value bears no proportion to this difference in burden. front of one lot the expense of building the street may exceed the value of the lot; and its construction may impose on the owner additional expense, to render his lot accessible. In front of another lot, of even much greater value, the expense is comparatively slight. These inequalities are obvious; and I have always thought the principle of such assessments was radically wrong. They have been very extensively discussed,. and sustained upon the ground that the lot should pay because it receives the benefit. But if this be true, that the improvements in front of a lot are made for the benefit of the lot only, then the right of the public to [* 509] * In many other cases, besides the construction, improvement, and repair of streets, may special tax tax the owner at all for that purpose fails; because the public has no right to tax the citizen to make him build improvements for his own benefit merely. It must be for a public purpose; and it being once established that the construction of streets is a public purpose that will justify taxation, I think it follows, if the matter is to be settled on principle, that the taxation should be equal and uniform, and that to make it so the whole taxable property of the political division in which the improvement is made should be taxed by a uniform rule for the purpose of its construction. "But in sustaining these assessments when private property was wanted for a street, it has been said that the State could take it, because the use of the street was a public use; in order to justify a resort to the power of taxation, it is said the building of a street is a public purpose. But then, having got the land to build it on, and the power to tax by holding it a public purpose, they immediately abandon that idea, and say that it is a private benefit, and make the owner of the lot build the whole of it. I think this is the same in principle as it would be to say that the town, in which the county seat is located, should build the county buildings, or that the county where the capital is should construct the public edifices of the State, upon the ground that, by being located nearer, they derived a greater benefit than others. If the question, therefore, was, whether the system of assessment could be sustained upon principle, I should have no hesitation in deciding it in the negative. I fully agree with the reasoning of the Supreme Court of Louisiana in the case of Municipality No. 2 v. White, 9 La. Ann. 447, upon this point. "But the question is not whether this system is established upon sound principles, but whether the legislature has power, under the constitution, to establish such a system. As already stated, if the provision requiring the rule of taxation to be uniform was the only one bearing upon the question, I should answer this also in the negative. But there is another provision which seems to me so important, that it has changed the result to which I should otherwise have arrived. That provision is § 3 of art. 11, and is as follows: It shall be the duty of the legislature, and they are hereby empowered, to provide for the organization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent abuses in assessments and taxation, and in contracting debts by such municipal corporations.' "It cannot well be denied that if the word assessment,' as used in this section, had reference to this established system of special taxation for municipal improvements, that then it is a clear recognition of the existence and legality of the power." And the court, having reached the conclusion that the word did have reference to such an established system, sustain the assessment, adding: "The same effect was given to the same clause in the Constitution of Ohio, by the Supreme Court of that State, in a recent decision in the case of Hill v. Higdon, 5 Ohio, N. S. 243. And the reasoning of Chief Justice Ranney on the question I think it impossible to answer." If the State of Wisconsin had any ing districts be created, with a view to local im- [* 510] provements. The cases of drains to relieve swamps, marshes, and other low lands of their stagnant water, and of levees to prevent lands being overflowed by rivers, will at once suggest themselves. In providing for such cases, however, the legislature exercises another power besides the power of taxation. On the theory that the drainage is for the sole purpose of benefiting the lands of individuals, it might be difficult to defend such legislation. But if the stagnant water causes or threatens disease, it may be a nuisance, which, under its power of police, the State would have authority to abate. The laws for this purpose, so far as they have fallen under our observation, have proceeded upon this theory. Nevertheless, when the State incurs * expense in the exercise of its police power for this [* 511] settled and known practice, designated as assessments, under which each lot owner was compelled to construct the streets in front of his lot, then the constitution as quoted may well be held to recognize such practice. In this view, however, it is still difficult to discover any "restriction" in a law which perpetuates the arbitrary and unjust custom, and which still permits the whole expense of making the street in front of each lot to be imposed upon it. The only restriction which the law imposes is, that its terms exclude uniformity, equality, and justice, which surely could not be the restriction the constitution designed. Certainly the learned judge shows very clearly that such a law is unwarranted as a legitimate exercise of the taxing power; and as it cannot be warranted under any other power known to constitutional government, the authority to adopt it should not be found in doubtful words. The case of Hill v. Higdon, referred to, is different. There the expense of improving the street was assessed upon the property abutting on the street, in proportion to the foot front. The decision there was, that the constitutional provision that "laws shall be passed taxing by a uniform rule all moneys, &c., and also all real and personal property, according to its true value in money,' had no reference to these local assessments, which might still be made, as they were before the constitution was adopted, with reference to the benefits conferred. The case, therefore, showed a rule of apportionment which was made applicable throughout the taxing district, to wit, along the street so far as the improvement extended. The case of State v. City of Portage, 12 Wis. 562, holds that a law authorizing the expense of an improvement to be assessed upon the abutting lots, in proportion to their front or size, would not justify and sustain city action which required the owner of each lot to bear the expense of the improvement in front of it. It has been often contended that taxation by frontage was in effect a taking of property for the public use, but the courts have held otherwise. People v. Mayor, &c. of Brooklyn, 4 N. Y. 419; Allen v. Drew, 44 Vt. 174; Warren v. Henley, 31 Iowa, 39; Washington Avenue, 69 Penn. St. 353; s. c. 8 Am. Rep. 255. |