fited, notwithstanding such constitutional restrictions as have been mentioned.

5. The methods of apportionment. Sufficient, perhaps, has been said regarding the principles on which special assessments are levied.' The methods which are chosen for giving those principles effect may now receive brief attention.

Although complaint is often made that special assessment operates oppressively and unjustly, and it cannot be denied that in individual cases the complaint is perfectly just, yet on the whole it has a decided advantage over other taxation in the fact that its methods are so flexible, and so easily adapted to the special equity and justice of the several classes of cases. This is shown in the modes of apportionment which are selected under different circumstances.

1. The major part of the cost of a local work is sometimes collected by general tax, while a smaller portion is levied upon the estates specially benefited.

2. The major part is sometimes assessed on estates benefited,

ments," held to embrace street assessments. 443; Codman v. Johnson, 104 Mass., 491. assessments which by his deed he assumes them. State v. Jersey City, 35 N. J., 381.

Oswald v. Gilbert, 11 Johns., One who buys land subject to to pay may nevertheless contest

1 In Alexander v. Baltimore, 5 Gill, 388, the general principle underlying these assessments is justly said to be the same with that on which highway taxes are laid. In Bridgeport v. N. Y. & N. H. R. Co., 36 Conn., 255, 262, Butler, J., in considering the question whether a certain act subjecting railroad property to a general tax, and exempting it from all other taxes, would exempt it from special assessments, makes the following remarks: "It is doubtless true that such an assessment of benefits is an exercise of the taxing power, and in a general sense a tax. It was so regarded by this court in Nichols v. Bridgeport, 23 Conn., 207, to which we have been referred. But it is never spoken of in the charters of cities and boroughs, or in the general law, or in popular intercourse, as a tax. And although this strictly in a general sense is a tax, it is one of a peculiar nature. It is a local assessment imposed occasionally as required upon a limited class of persons interested in a local improvement, and who are assumed to be benefited by the improvement to the extent of the assessment, and it is imposed and collected as an equivalent for that benefit and to pay for the improvement. It has consequently never been regarded as a tax, or termed such in legislative proceedings, in our public or private laws, or in popular intercourse. In all these it is known only and distinctively as an assessment for benefits,' and it cannot safely be assumed that the legislature had such assessments in contemplation when they passed the act of 1864."

while the general public is taxed a smaller portion in consideration of a smaller participation in the benefits.'

3. The whole cost in other cases is levied on lands in the immediate vicinity of the work.

In a constitutional point of view either of these methods is admissible, and one may be sometimes just, and another at other times. In other cases it may be deemed reasonable to make the whole cost a general charge, and levy no special assessment whatever. The question is legislative, and, like all legislative questions, may be decided erroneously; but it is reasonable to expect that, with such latitude of choice, the tax will be more just and equal than it would be were the legis lature required to levy it by one inflexible and arbitrary rule.3

Assessment by Benefits. Even after it has been determined how the cost shall be borne, as between the public and the estates benefited, much liberty is allowed in fixing upon the basis of apportionment as between individuals. The two methods between which a choice is commonly made are:

1. An assessment made by assessors or commissioners, appointed for the purpose under legislative authority, and who are to view the estates, and levy the expense in proportion to

1 See People v. Sherman, 83 Ill., 165. When commissioners are authorized to assess such part of the expense upon the city and such part locally as they shall deem just, they are not obliged to assess any upon the city unless they deem it just to do so. People v. Syracuse, 63 N. Y., 291, reversing 2 Hun, 433. The legislature is not bound to apportion a local improvement tax upon all the taxable property in the city. It may place the burden upon the owners of lands in proportion to special benefits received beyond the general advantage. The benefits may be estimated by the municipal authority in the first instance if an appeal to a jury is allowed to one aggrieved. If only half the benefit beyond the general advantage to all the real estate in the city is assessed to the property held by the council to be specially benefited, and the rule of apportionment is uniform within the district benefited, the assessment is proportional and reasonable within the constitutional rule. Holt v. Somerville, 127 Mass., 408. See Hayden v. Atlanta, 70 Ga., 817.

2 As to the diverse methods, see Wallace v. Shelton, 14 La. An., 498. 3" General taxation implies a distribution of the burden upon some general rule of equality. So a local assessment, or tax for a local benefit, should be distributed among and imposed upon all equally, standing in like relation." Redfield, J., in Allen v. Drew, 44 Vt., 174, 186. The question always is, or should be, what is equal under the circumstances.

the benefits which in their opinion the estates respectively will receive from the work proposed.

2. An assessment by some definite standard fixed upon by the legislature itself, and which is applied to estates by a measurement of length, quantity or value.

An assessment by the first method would seem to be most equal and just, because it would be made on actual examination of the lands assessed. The legislature, in such cases, makes the rule, and the proper officers give effect to it in a manner corresponding to the ordinary assessment for a taxation by values. The right thus to assess by benefits has been often affirmed, and can no longer be regarded as a controverted question.1

When benefits are assessed after this method, the district, within which the tax shall be laid, may be determined in either of two modes:

1. The legislative authority, either of the state, or, when properly authorized, of the municipality, may determine over

1 McMasters v. Commonwealth, 3 Watts, 292; Fenelon's Petition, 7 Pa. St., 173; Hancock Street Extension, 18 Pa. St., 26; Schenley v. Commonwealth, 36 Pa. St., 29; Commonwealth v. Woods, 44 Pa. St., 113; Wray v. Pittsburg, 46 Pa. St., 365; Greensburg v. Young, 53 Pa. St., 280; Allentown v. Henry, 73 Pa. St., 404; Weber v. Reinhard, 73 Pa. St., 373; Livingston v. New York, 8 Wend., 86; Matter of Twenty-sixth Street, 12 Wend., 203; Owners of Ground v. Albany, 15 Wend., 374; Matter of Furman Street, 17 Wend., 649; Matter of De Graw Street, 18 Wend., 568; People v. Brooklyn, 4 N. Y., 419; Wright v. Boston, 9 Cush., 233; Dorgan v. Boston, 12 Allen, 223; Brewer v. Springfield, 97 Mass., 152; Jones v. Boston, 104 Mass., 461; Nichols v. Bridgeport, 23 Conn., 189; Cone v. Hartford, 28 Conn., 363; Reid v. Toledo, 18 Ohio, 161; Scoville v. Cleveland, 1 Ohio St., 126; Hill v. Higdon, 5 Ohio St., 243; Marion v. Epler, 5 Ohio St., 250; Alexander v. Baltimore, 5 Gill, 383; Moale v. Baltimore, 5 Md., 314; Baltimore v. Cemetery Company, 7 Md., 517; Howard v. The Church, 18 Md., 457; Bradley v. McAtee, 7 Bush, 667; Howell v. Bristol, 8 Bush, 493; State v. Newark, 27 N. J., 155; State v. Fuller, 34 N. J., 227; Holton v. Milwaukee, 31 Wis., 27; Hoyt v. East Saginaw, 19 Mich., 39; Steckert v. East Saginaw, 22 Mich., 104; Brevoort v. Detroit, 24 Mich., 322; Morrison v. Hershire, 32 Ia., 271; Chicago v. Larned, 34 Ill., 203; Ottawa v. Spencer, 40 Ill., 211; Chicago v. Baer, 41 Ill., 306; Matter of Dorrance Street, 4 R. I., 230; Garrett v. St. Louis, 25 Mo., 505; St. Joseph v. O'Donoghue, 31 Mo., 345; St. Louis v. Clemens, 36 Mo., 467; St. Louis v. Armstrong, 38 Mo., 29; Uhrig v. St. Louis, 44 Mo., 458; Burnett v. Sacramento, 12 Cal., 76; Emery v. Gas Company, 28 Cal., 345; La Fayette v. Fowler, 34 Ind., 140. In State v. Charleston, 12 Rich., 702, the right to assess by benefits is denied. The point receives but little consideration, and the decisions to the contrary are not referred to.

what territory the benefits are so far diffused as to render it proper to make all lands contribute to the cost; or,

2. The assessors or commissioners who, under the law, are to make the assessment, may have the whole matter submitted to their judgment, to assess such lands as in their opinion are specially benefited, and as ought therefore to contribute to the cost of the work.

When the first method is adopted, the legislature exercises directly an undoubted and necessary power, which pertains to it in all matters of taxation; and which is inseparable from the power of apportionment. The whole subject of taxing districts belongs to the legislature; so much is unquestionable.1 The authority may be exercised directly, or, in the case of local taxes, it may be left to local boards or bodies; but in the latter case the determination will be by a body possessing for the purpose legislative power, and whose action must be as conclusive as if taken by the legislature itself. It has been repeatedly decided that the legislative act of assigning districts for special taxation on the basis of benefits cannot be attacked on the ground of error in judgment regarding the special benefits, and defeated by satisfying a court that no special and peculiar benefits are received. If the legislation has fixed the district, and laid the tax for the reason that, in the opinion of the legislative body, such district is peculiarly benefited, its action must in general be deemed conclusive. No doubt there

1 Sinton v. Ashbury, 41 Cal., 525; and see ante, chapter VII.

2 Piper's Appeal, 32 Cal., 530. When by law a special assessment is to be made on an estimate of benefits to be made on actual view by the commissioners, it is void if made absolutely on the cost of the work. Johnson t. Milwaukee, 40 Wis., 315.

"Property can only be assessed for public improvements on the principle of benefits received by the property from the construction of the work, and the assessment should never exceed the benefit conferred; and it is essential that it shall appear from the proceedings themselves that such was the principle on which the assessment was made." There must be some finding that the benefits will equal the amount levied, and the benefits must be imposed on the property proportionately. Crawford v. People, 82 Ill., 557.

3 Baltimore v. Hughes, 1 Gill & J., 480, 493, per Buchanan, Ch. J.; Litchfield v. Vernon, 41 N. Y., 123, 133, per Grover, J.; People v. Lawrence, 41 N. Y., 140; St. Louis v. Oeters, 36 Mo., 456; Shaw v. Dennis, 5 Gilm., 416; Philadelphia v. Field, 58 Pa. St., 320; Macon v. Patty, 57 Miss., 378; Kelly v. Cleveland, 34 Ohio St., 468; Bigelow v. Chicago, 90 Ill., 49. Compare Wright v. Boston, 9 Cush., 233.

If one denies that he is benefited by an improvement for which he is

may be exceptions; and one of these would be a case in which, under pretense of apportionment, a work of general benefit had been treated as a work of merely local consequence, and the cost imposed on some local community in disregard of the general rules which control legislation in matters of taxation.1 Another is where, under pretense of apportionment, a basis has been fixed upon which cannot possibly, as regards the particular work to be constructed, be just; as where a statute assumed to confer upon a city the authority to levy sewer assessments upon any property supposed to be benefited in proportion to area, but not limiting the assessment to lots along or near the sewer, or to lots contiguous to each other, or even to such as received direct or peculiar benefits. Had the assess

charged, the burden is upon him to show it; every presumption supporting the legislative action. Brown v. Denver, 3 Col., 169; Petition of Brady, 85 N. Y., 268; In re Bassford, 50 N. Y., 509. As to the proper district for an assessment for improving an alley under the charter of Louisville, see Schmelz v. Giles, 12 Bush, 491. The city council of St. Paul has authority to decide conclusively upon the district for a local assessment, and whether the levy will exceed the benefits. Rogers v. St. Paul, 22 Minn., 494. Where provision is made that the tax shall be assessed on the land "fronting on the highway" to be improved, this means only that part of the highway which is to be improved. Kendig v. Knight, 60 Ia., 29.

1 Baltimore v. Hughes, 1 Gill & J., 480, 492, per Buchanan, Ch. J.; Washington Avenue, 69 Pa. St., 352. A jury empowered to assess for a street improvement cannot arbitrarily select a portion of the street for the purpose, except, perhaps, as they may limit it to abutters. State v. St. Louis, 1 Mo. Ap., 503. Where an assessment is to be laid "upon the lands" in a given levee district, the fact that some of the lands are to be benefited more than others will not warrant the entire omission from taxation of any land within the district. Levee District v. Huber, 57 Cal., 41. If the district is so made as utterly to destroy equality, the courts may and will interfere. Preston v. Roberts, 12 Bush, 570.

2 Thomas v. Gain, 35 Mich., 155. Such an assessment, it was said, could under no circumstances be just "unless limited to lands directly and peculiarly benefited. But this act makes no provision by which parties assessed may of right drain into the sewer, so as to be enabled to reap the benefits they ought to derive from the expenditure. It makes no distinction between property actually occupied, or capable of being occupied, for city purposes, and that of an agricultural nature, of which there must be some within the city limits, upon which such a burden would fall with great severity and injustice. Nor does it confine the assessment to lands upon the streets in which the sewer is laid; and in the assessment before us lots on a parallel street are assessed. These lots, it is to be assumed, will be assessed again if a sewer is constructed in the street on which they front, and there is nothing