an opportunity to be heard before the owner can be finally precluded and his property subjected to the payment of the assessment: Sears v. Street Commissioners, 173 Mass. 350, 355 (53 N. E. 876), and authorities there cited. See, also, 2 Dillon, Mun. Corp. (4 ed.), § 802a.

3. The manner of notice and the specific period of time in the proceedings when he may be heard are not very material, so that reasonable opportunity is afforded before he has been deprived of his property, or the lien thereon is irrevocably fixed. So it has been held that it is sufficient if the party is accorded the right of appeal or to be heard upon an application for abatement (see Towns v. Klamath County, 33 Or. 225, 53 Pac. 604; Weed v. City of Boston, 172 Mass. 28, 51 N. E. 204, 42 L. R. A. 642), or the assessment is to be enforced by a suit to which he is to be made a party (Hagar v. Reclamation Dist., 111 U. S. 701, 4 Sup. Ct. 663; Walston v. Nevin, 128 U. S. 578, 9 Sup. Ct. 192), or the right of injunction against collection is accorded, by which the validity of the assessment may be judicially determined (McMillen v. Anderson, 95 U. S. 37). In such case he cannot be heard to complain that his property is being taken without due process of law. The case of Paulsen v. Portland, 149 U. S. 30 (13 Sup. Ct. 750), covers the question of the right to notice and a hearing quite fully; and it is significant that special reference is made to the ten days' notice required to be given under section 104 of the charter as it then stood, after the assessment had gone upon the docket of city liens, and before collection can be proceeded with, which is almost the exact provision now contained in section 141. While the court at the time declined to decide that such a notice was sufficient, yet, if the cause had been dependent upon it alone, it is not altogether clear that it would have held it insufficient. So it was held by this court, in conformity with the prevailing rule, that, if provision is made for notice to and

38 OR.-27.

hearing of each proprietor at some stage of the proceeding upon the question of what proportion of the tax shall be assessed upon his land, there is not a taking without due process of law: Wilson v. City of Salem, 24 Or. 504 (34 Pac. 9, 691).

4. The principle upon which is based the authority to take money as a tax for public use is that the taxpayer receives, or is supposed to receive, a just remuneration, in the protection which the government affords to life, liberty, and property, and in the increase in the value of possessions which comes from the use to which the money raised by the tax is applied: Cooley, Const. Lim. (6 ed.), 613. Local or special assessments for local improvements stand upon a different basis. They are made and sustained upon the assumption that a prescribed portion of the community is to be especially benefited, in the enhancement of the value of the property peculiarly situated as regards the proposed expenditure of the funds to be raised by the assessment. It is but a demand of simple justice that special contributions in consideration of special benefits should be made by those receiving the benefits, but such contributions ought not, by the same demand of justice, to be enforced in any case beyond the benefits received: Cooley, Tax'n (2 ed.), 606. Such an assessment is not in conflict with the provision of our state constitution requiring that "all taxation shall be equal and uniform": Article I, § 32; King v. City of Portland, 2 Or. 146. It must be conceded, therefore, as was said by Mr. Justice HARLAN, in Norwood v. Baker, 172 U. S. 269, 279 (19 Sup. Ct. 187), that "the exaction from the owner of private property of the cost of a public improvement in substantial excess of the special benefits accruing to him is, to the extent of such excess, a taking, under the guise of taxation, of private property for public use, without compensation." The eminent jurist used the words "substantial excess" advisedly, because, as he explains, "exact equality in taxation is not al

ways attainable, and for that reason the excess of cost over special benefits, unless it be of a material character, ought not to be regarded by a court of equity when its aid is invoked to restrain the enforcement of a special assessment." Judicial authority, were it necessary, is not lacking elsewhere in support of the doctrine. "The whole theory of local taxation or assessment," say the Supreme Court of Missouri, in McCormack v. Patchin, 53 Mo. 33 (14 Am. Rep. 440), "is that the improvements for which they are levied afford a remuneration in the way of benefits. A law which would attempt to make one person or given number of persons, under the guise of local assessments, pay a general revenue for the public at large, would not be an exercise of the taxing power, but an act of confiscation." So, in State v. Mayor, etc., of Hoboken, 36 N. J. Law, 291, it was held that, to the extent of the excess of an assessment above benefits accruing by reason thereof, it was a taking of private property for public use without compensation, because that received by the owner was not equal to that taken from him. And again, in Dexter v. Boston, 176 Mass. 247 (79 Am. St. Rep. 306, 57 N. E. 379), decided in 1900, the court say: "It is now settled law in this court, as it is in the Supreme Court of the United States and in many other courts, that after the construction of a public improvement a local assessment for the cost of it cannot be laid upon real estate in substantial excess of the benefit received by the property. Such assessments must be founded on the benefits, and be proportional to the benefits," -citing the Norwood Case, and, among others, Sears v. Street Commissioners, 173 Mass. 350, 355 (53 N. E. 876), wherein the court say that "it is well established that taxation of this kind is permissible under the constitution of this commonwealth and under the Constitution of the United States only when founded upon special and peculiar benefits to the property from the expenditure on account of which the tax is laid, and then only to an amount not exceeding

such special and peculiar benefits." This marks the boundary, beyond which it is not within the power of the legislature to go, even in the determination of benefits as applied to a prescribed district. When, however, it is plainly and palpably manifest from the surroundings (that is, from the physical condition of the property involved, its locality, the character of the work or improvement, the assessment, and from the very nature of things) that such an assessment is not adapted to the purpose, and is requiring of the owner a contribution to which he should not be subjected in that capacity, the court will interfere to prevent a consummation of the injustice.

5. But we are more concerned with the manner of apportionment as between owners within the assessment district. In this, as in prescribing the district, the legislature has a discretion commensurate with the broad domain of legislative power: 2 Dillon, Mun. Corp. (4 ed.), § 761, subd. 4. The mode which the legislature has prescribed is, in substance, that the cost of the half street in front shall be assessed upon the abutting lot or part of lot, and that the cost of street intersections shall be assessed five-ninths upon the corner lot, and the remainder upon the adjacent lot in the quarter block. The rule is invariable, and, when the cost of the improvement in front or at an intersection is ascertained, it must be assessed upon the property; and no discretion, legislative or judicial, abides with the municipal authorities to modify or abate it in the slightest measure. The method is perhaps the least justifiable, as a general rule, of any that has been devised, but that does not signify that it is not proper in any case. The Norwood Case would seem, at first thought, to forbid the application under all conditions of the frontfoot rule, but it was probably not intended that it should be so far-reaching in its significance. As applied to that case, and all similar cases, it must be accepted as controlling. The rule has been many times upheld, and it is believed it yet

may be, where the conditions are such that it may reasonably be supposed that the method adopted will secure a proportional distribution of the burden according to the benefits. Thus, in Sears v. Board of Aldermen, 173 Mass. 71 (53 N. E. 138, 43 L. R. A. 834), an assessment for sprinkling a street was sustained by the rule, because it did not appear that, as applied to the property assessed, it was not an approximately accurate method of determining benefits. In the opinion the proposition is stated that, "while these assessments must be founded upon benefits, the courts have generally recognized the difficulty, and in many cases the impracticability, of attempting to estimate benefits to estates one by one without some rule or principle of general application which will make the assessments reasonable and proportional, according to the benefits. Accordingly the determination of such a rule or principle by the legislature itself, or by the tribunal appointed by the legislature to make the assessments, has commonly been upheld by the courts. If, however, its effect plainly is to make an assessment upon any estate substantially in excess of the benefit received, it is set aside." This case was decided March 3, 1899, since the announcement of the Norwood Case. In the September prior, the same court decided the case of Weed v. City of Boston, 172 Mass. 28 (51 N. E. 204, 42 L. R. A. 642), wherein it was held that assessments according to frontage of lots on a strip of private land taken for a sewer may be so grossly disproportionate to the benefits received by the land from the sewer that a statute authorizing them is unconstitutional. The court say: "The weight of authority is that an assessment according to the frontage of lots abutting upon a street or a public way in a city sometimes may be a reasonable mode of making an assessment for the cost of constructing a sewer in such street or way, because of the similarity of the lots, but that such an assessment when the sewer is not constructed in a street or way, or is constructed in the country,