for a single highway may not be the same as that for the schoolhouse located upon it. It is not essential that the political districts of the state shall be the same as the taxing districts,' but special districts may be established for special purposes, wholly ignoring the political divisions. A school district may be created of territory taken from two or more townships or counties, and the benefits of a highway, a levee or a drain may be so peculiar that justice would require the cost to be levied either upon part of a township or county, or upon parts of several such subdivisions of the state. In some states there may be township government within a city, or a city within the bounds of a township, and the fact will create a necessity for special taxing districts, since otherwise taxation for some local purposes could not possibly be properly apportioned. And railroads which extend through several of the ordinary taxing districts may seem to require districts specially created, and having regard to no other property. It is compulsory that the political divisions of the state shall be regarded in taxation only where the tax itself is for a purpose specially pertaining to one of them in its political capacity, so that, as already stated, the nature of the tax will determine the district.

1 People v. Central R. R. Co., 43 Cal., 398, in which it was decided to be competent to divide a county into revenue districts; Malchus v. Highlands, 4 Bush, 547; S. C., 2 Withrow's Corp. Cas., 361, in which an act was sustained which created a special district near Newport, with authority to grade and pave, or macadamize with rock or gravel, any public road passing through or into the same, on a favorable vote of two-thirds the owners of real estate by or through which any such road may pass. See, also, County Judge v. Shelby R. R. Co., 5 Bush, 225; Shaw v. Dennis, 10 Ill., 405; People v. Haws, 34 Barb., 69. A strong illustration of legislative power in establishing districts is afforded when several streets are put into one district for the purposes of improvement, and the cost of improving all is assessed throughout the district; as in Challiss v. Parker, 11 Kan., 394.

2 County Judge v. Shelby R. R. Co., 5 Bush, 225. See, also, People v. Draper, 15 N. Y., 532; Buffalo, etc., R. R. Co. v. Supervisors of Erie, 48 N. Y., 93; Litchfield v. McComber, 42 Barb., 288, 299; Sangamon, etc., R. R. Co. v. Jacksonville, 14 Ill., 163; Bakewell v. Police Jury, 20 La. An., 334; Malchus v. Highlands, 4 Bush, 547; Norwich v. County Commissioners, 13 Pick., 60; Brighton v. Wilkinson, 2 Allen, 27; Attorney-Gen'l v. Cambridge, 16 Gray, 247; Salem Turnpike, etc., Co. v. Essex County, 100 Mass., 282.

3 In Iowa if a city is within the limits of a township, this does not authorize township highway officers to levy road taxes within the city. Marks v. Woodbury Co., 47 Ia., 452. But in Illinois in such a case the highway commissioner taxes alike all property in the city and outside, but all funds

Overlying districts. Even when the purpose for which a tax is demanded pertains to the state at large, or to one of its divisions, so that a general levy throughout the state or such division is essential, there may be peculiar reasons why a part of the general public who are concerned in the purpose should bear a proportion of the burden greater than that which should be borne by the others. A pertinent illustration might perhaps be the case of a tax for the construction of a state capitol. It would be clear, we should say, that such a tax should be spread over the state at large, because the purpose is a state purpose, and every individual in the state is directly interested in its accomplishment. But it is also apparent that the people and the property at the place where the structure is proposed to be constructed would receive special and probably very great benefits in consequence of the construction, beyond what they would receive in common with all others. The fact is often recognized in the voluntary contributions which are made by the people to secure the location and construction of state buildings at the place where they reside or own property; and the question then arises whether these peculiar benefits may not constitute a basis for special taxation. To make them such it would be necessary there should be two taxing districts; the one embracing the whole state, and the other embracing only the district which, in the opinion of the legislature, was so peculiarly benefited as to justify an exceptional burden upon its people and property. In such a case the people within the minor district, which is also embraced within the larger district, would contribute twice to the same burden; but this, though apparently a violation of the principles of taxation, is not so in fact, if the establishment of the minor district has only equality and justice in view, and if each tax payer, though twice called upon, is by the two assessments only required to pay what, as between himself and the rest of the state, has been found to be his just proportion of a burden which, though general in its nature, distributes its benefits unequally.

This doctrine has been applied in Pennsylvania to the case

raised in the city by such taxation are to be expended within it. Baird v. People, 83 Ill., 387; People v. Wilson, 3 Ill. App., 368; Britten v. Clinton, 8 Ill. App., 164. See Suppiger v. People, 9 Ill. App., 290. As to meaning of taxes "for road purposes," see People v. Wilson, 3 Ill. App., 368.

1

of a county town, which, in addition to its proportion of the county levy, was specially assessed for the expense of constructing a court-house and jail. "The advantages of a county town," it was said, "are too well appreciated, not to make every village use all its exertions to have a court-house provided for its benefit and convenience; and as its inhabitants profited by, not only the disbursement of the tax among them, but a permanent increase of their business and an appreciation. of their property, they were morally bound to contribute in proportion." In the state of New York it has also been applied to a state work of public improvement—a canal which conferred or was likely to confer local benefits on a locality specially taxed. It has also been applied to the case of a building erected for the accommodation of a state educational institution. In one case where a local tax was constructed to meet a portion of the cost of erecting at that place a building for the state agricultural college, the principles which underlie such cases were so clearly stated that a quotation from the opinion will be more satisfactory than any synopsis that might be attempted, or any restatement in our own language.

"It may at first sight seem," it was said, "as if the estab lishment of a college and its endowment and support by the commonwealth for the education of all persons within the state who might wish to receive instruction in certain branches of science or art, would stand on the same footing as the public schools, and that money raised for such an object ought to be apportioned and distributed in such manner as to bear on all persons and property equally, without resort to local taxation, which would operate partially, and in a certain sense disproportionately. We are not prepared to say that this proposition is in all respects incorrect. We doubt very much whether it would be competent for the legislature to impose the whole burden of supporting such an institution upon any particular municipality, section or district of the state. But we are clear in the opinion that there may exist a state of facts which would render it just and expedient, and strictly

1 Gibson, Ch. J., in Kirby v. Shaw, 19 Pa. St., 258, 261.

2 Thomas v. Leland, 24 Wend., 65. See, also, Harbor Commissioners v. State, 45 Ala., 399.

within the exercise of constitutional authority, for the legislature to enact that a portion of such a public burden should be borne by persons and estates situated within certain limits, and to authorize a special assessment on them for that purpose. If the establishment of a public institution of general utility or necessity in a particular locality would be productive of direct and appreciable benefit to persons or estates in the vicinity, either by increasing the value of property there situated, or by the opportunities which it would afford to those residing in the neighborhood to enjoy certain common advantages and privileges with greater facility and at less cost than others having an equal right to participate in them, but who reside or own estates more remotely situated, or in distant parts of the state, we can see no reason why these special advantages or benefits should not be taken into consideration in determining the mode in which the public burden of defraying the cost of the institution should be apportioned and distributed. While perfect equality in the raising of money for public charges is inattainable, it would certainly approximate more nearly to an equitable apportionment of them, to provide that such portion of the expenditure for a public object as will inure directly to the benefit or profit of a certain town or district, should be borne by the estates situated and persons resident therein, leaving only that sum to be treated as a public charge, and to constitute a general assessment on all persons and property in the commonwealth, which may reasonably be supposed to be expended for the equal and common benefit of all. Such distribution of a public burden would be reasonable, because it would tend to equality; and it would be proportional, because it would be borne in proportion to the benefits which each would receive." 1

1 Bigelow, Ch. J., in Merrick v. Amherst, 12 Allen, 500, 504. See to the same effect, Marks v. Pardue University, 37 Ind., 155; Gordon v. Cornes, 47 N. Y., 608, 614; Burr v. Carbondale, 76 Ill., 455; Hensley Township v. People, 84 Ill., 544: Livingston County v. Darlington, 101 U. S., 407; Briggs v. Johnson Co., 4 Dill., 148.

Every such special assessment must of course have express legislative authority. It could not be made under the general power conferred upon a municipality to levy taxes for corporate purposes. On this general subject see post, ch. XX.

A like principle is sometimes applied to the construction and improvement of the streets. These, as has been said, constitute highways for the accommodation of the general public, but are calculated, by their improvement, to increase largely the value of all property fronting on or lying in the immediate vicinity of them. Should the legislature determine that the cost of a street improvement should be borne in part by the whole city, and in part by an assessment made on the basis of benefits within a district to which the improvement was exceptionally valuable, we know of no valid legal objection that could be interposed. Whether the city shall bear the whole expense, or the adjacent property the whole, or, as a third resort, the expense be apportioned between two districts, one of which shall include the whole city, and the other the adjacent property only, must be determined by the legislature on a consideration of all the equities bearing on the case.1 Other local city improvements may undoubtedly be provided for in the same way.

The legislature has sometimes applied the same doctrine to the case of general city taxation; constituting two districts, the one, consisting of the whole city, to be assessed equally, and the other consisting of the more compact portions of the city, which, because receiving a larger share of the benefits of city government, in the protection afforded by the police and fire departments, and the like, was required to pay a greater proportionate share of the expense of such government. It is not perceived that such a case differs in principle from the other cases of overlying districts which have been mentioned. Nevertheless, in some cases the power of the legislature to discriminate in city taxation between what may be designated the out property, and that in the parts compactly built, has been denied, on the ground that the city constituted the taxing district for city purposes, and such a discrimination would give distinct rules of taxation within the same district, to the number of which there could be no limit except the legislative discretion; a doctrine wholly inconsistent, it was said, with the

1 See Municipality v. White, 9 La. An., 446; Municipality v. Dunn, 10 La. An., 57; Chicago v. Larned, 34 Ill., 203; Ottawa v. Spencer, 40 Ill., 211; Patton v. Springfield, 99 Mass., 627; S. C., 2 Withrow's Corp. Cas., 484.