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* 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, The rule of apportionment, whether 3 Watts, 292; Allentown v. Henry, by the front foot or a percentage upon 73 Penn. St. 404; Weber v. Rein- the assessed valuation must be unihard, 73 Penn. St. 370; Livingston form, affecting all the owners and all v. New York, 8 Wend. 86; Wright v. the property abutting on the street Boston, 9 Cush. 233; Jones v. Boston, alike. One rule cannot be applied to 104 Mass. 461; Nichols v. Bridgeport, one owner, and a different rule to 23 Conn. 189; Cone v. Hartford, 28 another owner. One could not be Conn. 363; Alexander v. Baltimore, assessed ten per cent, another five, 5 Gill, 383; Howard v. The Church, another three, and another left alto18 Md. 451; Hoyt v. East Saginaw, gether unassessed because he was not 19 Mich. 39; Garrett v. St. Louis, 25 in fact benefited. It is manifest that Mo. 505; Burnett v. Sacramento, 12 the actual benefits resulting from the Cal. 76; La Fayette v. Fowler, 34 Ind. improvement may be as various al140. The right to assess by benefits most as the number of the owners has been denied in South Carolina. and the uses to which the property State v. Charleston, 12 Rich. 702. may be applied. No general rule, The legislation in Ohio on the sub- therefore, could be laid down which ject has authorized the cities and would do equal and exact justice to villages, in opening and improving all. The legislature have not atstreets, to assess the expense either tempted so vain a thing, but have upon the lots abutting on the street prescribed two different modes in in proportion to the street front, or which the assessment may be made, upon the lands in proportion to their and left the city authorities free to assessed value. In case where the adopt either. The mode adopted by former mode was resorted to, and an the council becomes the statutory assessment made upon property owned equivalent for the benefits conferred, by the Northern Indiana Railroad although in fact the burden imposed Company for its corporate purposes, may greatly preponderate. In such Peck, J., thus states and answers an case, if no fraud intervene, and the objection to the validity of the tax: assessinent does not substantially ex“But it is said that assessments, as haust the owner's interest in the land, distinguished from general taxation, his remedy would seem to be to prorest solely upon the idea of equivalents; cure, by a timely appeal to the city a compensation proportioned to the authorities, a reduction of the special special benefits derived from the im- assessment, and its imposition, in provement, and that, in the case at whole or in part, upon the public at bar, the railroad company is not, and large." Northern Indiana R. R. Co.v. in the nature of things cannot be, in Connelly, 10 Ohio, n. s. 159, 165. And any degree benefited by the improve- see Howell v. Bristol, 8 Bush, 493. ment. It is quite true that the right There are no constitutional objections to impose such special taxes is based to meeting the expense of repaving upon a presumed equivalent; but it

a street by local assessments that do by no means follows that there must not equally lie to such assessments be in fact such full equivalent in for the first paving. Blount v. Janesevery instance, or that its absence ville, 31 Wis. 648. will render the assessment invalid.

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in proportion to the frontage. 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 legis

lature 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; Presbury, 14 Wall. 676; Hoyt v. Northern Ind. R. R. Co. v. Connelly, East Saginaw, 19 Mich. 39; s. C. 2 10 Ohio, n. s. 159; Lumsden v. Cross, Am. Rep. 76; La Fayette v. Fowler, 10 Wis. 282. And see St. Joseph v. 34 Ind. 140; Chambers v. Satterlee, O'Donoghue, 31 Mo. 345; Burnett 40 Cal. 497; Bradley v. McAtee, 7 v. Sacramento, 12 Cal. 76; Scoville Bush, 667; s. c. 3 Am. Rep. 309. v. Cleveland, 1 Ohio, n. s. 126; Hill In Washington Avenue, 69 Penn. St. v. Higdon, 5 Ohio, n. s. 243; Ernst v. 353, s. C. 8 Am. Rep. 255, it is denied Kunkle, 5 Ohio, N. s. 520; Hines v. that this principle can be applied to Leavenworth, 3 Kan. 186; Magee the country and to farming lands. v. Commonwealth, 46 Penn. St. 358; Agnew, J., says: To apply it to the Wray v. Pittsburg, 46 Penn. St. 365; country, or to farm lands, would lead Palmer v. Stumph, 29 Ind. 329. In to such inequality and injustice as to Hammett v. Philadelphia, 65 Penn. deprive it of all soundness as a rule, St. 146, s. c. 3 Am. Rep. 615, while or as a substitute for a fair and imthe cases here cited are approved, it is partial valuation of benefits in pursudenied that a street already laid out ance of law; so that at the very first and in good condition can be taken blush every one would pronounce it and improved for a public drive or palpably unreasonable and unjust." carriage-way at the expense of the The able opinion in this case is a very adjacent owners; this not being an satisfactory and very thorough eximprovement for local but for general amination of the principles on which purposes. Compare Washington local assessments are supported. The Avenue, 69 Penn. St. 353; s. c. 8 case of Seely v. Pittsburg, 82 Penn. Am. Rep. 255; Allen v. Drew, 44 Vt. St. 360, is a case in principle similar 174 (case of water-rents); Willard v. 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

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i In fact, lots above and below an may require on the street in front of established grade are usually less his lot, without reference to inequalibenefited by the grading than the ties in the value of the lots, in the others; because the improvement expense of constructing the improvesubjects them to new burdens, in ments, or to the question whether the order to bring the general surface to lot is injured or benefited by their the grade of the street, which the construction. Corner lots are

others escape.

quired to construct and keep in repair 2 The case of Warren v. Henley, three times as much as other lots ; 31 Iowa, 38, is opposed to the rea- and yet it is well known that the soning of the text; but the learned difference in value bears no proporJudge who delivers the opinion con- tion to this difference in burden. In cedes that he is unable to support his front of one lot the expense of buildconclusions on the authorities within ing the street may exceed the value his reach.

of the lot; and its construction may 3 See City of Lexington v. Mc- impose on the owner additional exQuillan's Heirs, 9 Dana, 513, and pense, to render his lot accessible. opinions of Campbell and Christiancy, In front of another lot, of even much JJ., in Woodbridge v. Detroit, 8 greater value, the expense

is comMich. 274. The case of Weeks v. paratively slight. These inequalities Milwaukee, 10 Wis. 258, seems to be are obvious; and I have always contra. We quote from the opinion thought the principle of such assessof the court by Paine, J. After ments was radically wrong. They stating the rule that uniformity in have been very extensively discussed, taxation implies equality in the bur- and sustained upon the ground that den, he proceeds: “ The principle the lot should pay because it receives upon which these assessments rest is the benefit. But if this be true, that clearly destructive of this equality. the improvements in front of a lot It requires every lot owner to build are made for the benefit of the lot whatever improvements the public 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 of Municipality No. 2 r. White, 9 fails ; because the public has no right La. Ann. 447, upon this point. to tax the citizen to make him build " But the question is not whether improvements for his own benefit this system is established upon sound merely. It must be for a public principles, but whether the legislature purpose; and it being once established has power, under the constitution, to that the construction of streets is a establish such a system. As already public purpose that will justify taxa- stated, if the provision requiring the tion, I think it follows, if the matter rule of taxation to be uniform was is to be settled on principle, that the the only one bearing upon the questaxation should be equal and uni- tion, I should answer this also in the form, and that to make it so the negative. But there is another prowhole taxable property of the politi- vision which seems to me so imporcal division in which the improve- tant, that it has changed the result to ment is made should be taxed by a which I should otherwise have aruniform rule for the purpose of its rived. That provision is § 3 of art. construction.

11, and is as follows: • It shall be “But in sustaining these assess- the duty of the legislature, and they ments when private property was are hereby empowered, to provide for wanted for a street, it has been said the organization of cities and incorthat the State could take it, because porated villages, and to restrict their the use of the street was a public use; power of taxation, assessment, borrowin order to justify a resort to the ing money, contracting debts, and power of taxation, it is said the build- loaning their credit, so as to present ing of a street is a public purpose. abuses in assessments and taxation, But then, having got the land to and in contracting debts by such mubuild it on, and the power to tax nicipal corporations.' by holding it a public purpose, they

" It cannot well be denied that if immediately abandon that idea, and the word " assessment,' as used in say that it is a private benefit, and this section, had reference to this esmake the owner of the lot build the tablished system of special taxation whole of it. I think this is the same for municipal improvements, that in principle as it would be to say that then it is a clear recognition of the the town, in which the county seat is existence and legality of the power." located, should build the county And the court, having reached the buildings, or that the county where conclusion that the word did have the capital is should construct the reference to such an established syspublic edifices of the State, upon the tem, sustain the assessment, addground that, by being located nearer, ing:

" The same effect was given to they derived a greater benefit than the same clause in the Constitution others. If the question, therefore, of Ohio, by the Supreme Court of was, whether the system of assess- that State, in a recent decision in the ment could be sustained upon prin- case of Hill v. Higdon, 5 Ohio, N. S. ciple, I should have no hesitation in 243. And the reasoning of Chief deciding it in the negative. I fully Justice Ranney on the question 1

I agree with the reasoning of the Su- think it impossible to answer." preme Court of Louisiana in the case 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]

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settled and known practice, desig- that “ laws shall be passed taxing by nated as assessments, under which a uniform rule all moneys, &c., and each lot owner was compelled to con- also all real and personal property, struct the streets in front of his lot, according to its true value in money,' then the constitution as quoted may had no reference to these local assesswell be held to recognize such prac- ments, which might still be made, as tice. In this view, however, it is still they were before the constitution was difficult to discover any“ restriction” adopted, with reference to the benein a law which perpetuates the arbi- fits conferred. The case, therefore, trary and unjust custom, and which showed a rule of apportionment which still permits the whole expense of was made applicable throughout the making the street in front of each lot taxing district, to wit, along the to be imposed upon it. The only street so far as the improvement exrestriction which the law imposes is, tended. The case of State v. City of that its terms exclude uniformity, Portage, 12 Wis. 562, holds that a equality, and justice, which surely law authorizing the expense of an could not be the restriction the con- improvement to be assessed upon the stitution designed. Certainly the abutting lots, in proportion to their learned judge shows very clearly that front or size, would not justify and such a law is unwarranted as a legiti- sustain city action which required the mate exercise of the taxing power; owner of each lot to bear the expense and as it cannot be warranted under of the improvement in front of it. any other power known to constitu- It has been often contended that tional government, the authority to taxation by frontage was in effect a adopt it should not be found in taking of property for the public use, doubtful words. The case of Hill but the courts have held otherwise. o. Higdon, referred to, is different. People v. Mayor, &c. of Brooklyn, There the expense of improving the 4 N. Y. 419; Allen v. Drew, 44 Vt. street was assessed upon the property 174; Warren v. Henley, 31 Iowa, 39; abutting on the street, in proportion Washington Avenue, 69 Penn. St. to the foot front. The decision there 353 ; s. c. 8 Am. Rep. 255. was, that the constitutional provision

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