cision, it would ill become us now to unsettle its foundation by disputing its principle. But it is an admitted substitute, only because practically it arrives, as nearly as human judgment can ordinarily reach, at a reasonable and just apportionment of the benefits on the abutting properties. Hence the fairness of the rule of charging benefits by frontage was a conceded point in Hammett v. City of Philadelphia, 65 Pa. St. 155 (3 Am. Rep. 615). But this rule, as a practical adjustment of proportional benefits, can apply only to cities and large towns, when the density of population along the street, and the small size of lots, make it a reasonably certain mode of arriving at a true result." See, also, Cleveland v. Tripp, 13 R. I. 50; Raleigh v. Peace, 110 N. C. 32 (14 S. E. 521, 17 L. R. A. 330); Allen v. City of Davenport, 107 Iowa, 90 (77 N. W. 532).

Since the decision of the Norwood Case, assessments by the front-foot rule have been sustained in several of the states of the Union. In the case of Cass Farm Co. v. City of Detroit,* 124 Mich. (83 N. W. 108), which involved a street pavement, in the course of the opinion the court quotes from Mr. Justice COOLEY in Sheley v. City of Detroit, 45 Mich. 431 (8 N. W. 52), as follows: "We might fill pages with the names of cases decided in other states which have sustained assessments for improving streets, though the apportionment of cost was made on the same basis as the one Defore us. If anything can be regarded as settled in municipal law in this country, the power of the legislature to permit such assessments, and to direct an apportionment of the cost by frontage, should by this time be considered as no longer open to controversy. Writers on constitutional law, municipal law, and on the law of taxation have collected the cases, and have recognized the principle as settled; and, if the question were new in this state, we might think it im

*NOTE. This decision has been affirmed on appeal by the Supreme Court of the United States, 181 U. S. (21 Sup. Ct. 644).-REPORTER.

portant to refer to what they say. But the question is not new. It was settled for us thirty years ago." But the court distinguished the case from that of Norwood v. Baker on the ground that it was for paving a street, while that was for street-opening purposes, and refused to disturb the rule that had been so long followed in the state. In Indiana it was sustained in Adams v. City of Shelbyville, 154 Ind. 467 (77 Am. St. Rep. 484, 57 N. E. 114). The case involved a stone curbing, where what is known as the "Barrett Law" was upheld. The rule was also sustained in North Dakota in Webster v. City of Fargo, 9 N. Dak. 208† (82 N. W. 732), an assessment for street paving; in Minnesota, in State v. District Court, 80 Minn. 293 (83 N. W. 183), also for street paving; in Missouri, in Heman v. Allen, 156 Mo. 534 (57 S. W. 559), and Barber Asphalt Paving Co. v. French, 158 Mo. 5348 (58 S. W. 934), the former of which involved a sewer assessment, and the latter the pavement of a street; in New York, by the court of appeals, in Conde v. City of Schnectady, 164 N. Y. 258 (58 N. E. 130), a street-paving case; and in California, in Hadley v. Dague, 130 Cal. 207 (62 Pac. 500), for street improvement. Texas has condemned the rule unqualifiedly in Hutcheson v. Storric, 92 Tex. 685 (51 S. W. 848, 45 L. R. A. 289, 71 Am. St. Rep. 884), and the federal circuit courts are uniform in their holding to the same purpose: Fay v. City of Springfield, 94 Fed. 409; Loeb v. Trustees, 91 Fed. 37; Charles v. City of Marion, 98 Fed. 166; Cowley v. City of Spokane, 99 Fed. 840; Charles v. City of Marion, 100 Fed. 538.

NOTE.-The Supreme Court of the United States has affirmed this decision, 181 U. S. (21 Sup. Ct. 623).-REPORTER.

NOTE.-On appeal to the Supreme Court of the United States this decision was affirmed under the title of Shumate v. Heman, 181 U. S. (21 Sup. Ct. 645).-REPORTER.

$NOTE. See the decision of the Supreme Court of the United States in this case on appeal, 181 U. S. 324 (21 Sup. Ct. 625, 642), affirming the lower court, and explaining the case of Norwood v. Baker, 172 U. S. 269. Read, also, Wight v. Davidson, 181 U. S. 371 (21 Sup. Ct. 616). -REPORTER.

But we are inclined to believe that the better doctrine deducible from adjudged cases, including those of the Supreme Court of the United States, is that the assessment will be upheld wherever it is not patent and obvious from the nature and location of the property involved, the district prescribed, the condition and character of the improvement, the cost and relative value of the property to the assessment, that the plan or method adopted has resulted in imposing a burden in substantial excess of the benefits, or disproportionate within the district as between owners. This must be so, logically and necessarily, in view of the broad latitude accorded the legislature, in its discretion, to prescribe the taxing district, and the manner and method of making the assessment within the district, as it concerns individual owners and proprietors. As the writers say, the authority of the legislature in these respects is almost without limit; yet that there is a limit beyond which it cannot go, all will concede. When, however, it has exercised its legislative discretion, and prescribed a district and adopted a method, it ought to be plain and indisputable that it has exceeded its constitutional authority, before the court should undertake to set at naught its declared will. Neither ought the system to be condemned because there may be exceptions wherein it would work a legal injury to enforce it. If such an exception arises, as was the case in Oregon & Cal. R. R. Co. v. City of Portland, 25 Or. 229 (35 Pac. 452, 22 L. R. A. 713, 46 Am. & Eng. Corp. Cas. 295), the court will not enforce it, but it will hesitate long to condemn the rule because of the exception. The rule upon which the assessment is made in the present case has been upheld in several jurisdictions: Warren v. Henly, 31 Iowa, 31; Gatch v. City of Des Moines, 63 Iowa, 718 (18 N. W. 310); Sands v. City of Richmond, 31 Grat. 571 (31 Am. Rep. 742); White v. People, 94 Ill. 604. Upon this subject Mr. Dillon observes: "It may be true that in some instances more hardship will be occa

sioned by requiring each owner to make or pay for the improvement in front of his own property than if the cost were assessed on the basis of frontage or of supposed benefits received. Still it seems to the author difficult to find satisfactory and solid ground on which to discriminate the cases so as to hold that one is within the constitutional power of the legislature, and the other is not": 2 Dillon, Mun. Corp. (4 ed.), § 753

6. Now, let us look at the law, and ascertain, if we can, whether it is legally sustainable upon principle. The common council is empowered by the legislature to fix and determine the taxing district. This it did by adopting the resolution of intention to make the improvement. Its action in this regard is legislative in character, and it was not requisite that the legislature should have provided for notice before the council was authorized to act. In prescribing the district, it must be presumed, as would have been the case if the legislature had itself acted directly, that it took into consideration the exceptional benefits that would accrue to the property which it was intended should be charged with the burden, because it could inaugurate or make such an assessment upon no other basis. A notice in the present instance was required by the charter, and given, however, and, while it was for the purpose of acquiring jurisdiction, it gave the property holders an opportunity to appear and file objections to the improvement; and it was perfectly competent for them to raise both the objection that as a district the costs would be in excess of the exceptional benefits to the property involved, and that as it respects individual holders, and between themselves, the assessment would not be proportional to the relative benefits to be derived from the improvement. This is what, in fact, was done by the plaintiffs, as shown by the record, and upon this issue they were accorded a hearing. It was also possible for the common council to determine the matter with reasonable accuracy, as the probable cost and

distributive share thereof among the holders was known to them, as was also the locality and situation of the property to be assessed. The manner adopted for the assessment of the costs and expenses against the respective lots is wholly legislative in its nature. The common council is accorded no discretion, but is to make the assessment as directed by the charter. Its function in that respect is clerical, merely, as no choice is lodged with it to vary the rule adopted. Such being the nature of the assessment, no notice or hearing would seem to be requisite under Parsons v. District of Columbia, 170 U. S. 45 (18 Sup. Ct. 521). But the charter afforded an opportunity to be heard sufficient under other authorities to support the assessment. There are four several notices required along the way: First, of the proposed improvement; second, inviting proposals for doing the work; third, touching the acceptance of the work; fourth, ten days' notice of the entry of the assessment in the docket of city liens. Ample opportunity was thus afforded the owners to appear and interpose the constitutional objections, which is all that is sought to be done in this proceeding.

7. The improvement consists of an elevated roadway, ranging from ten to fifteen feet in height throughout, except at one intersection, which was a fill; and it is apparent that the cost of the work was practically uniform throughout, and the assessment against the lots was therefore as nearly proportional according to benefits as could be devised. At least, it is not apparent that there is any substantial excess of costs above benefits, nor is there such a disproportionate distribution of the burden as to justify the court in declaring the assessment an arbitrary exaction by the legislature. It is beyond the power of human ingenuity to adopt any plan or mode of assessment that will operate to produce exact uniformity, and all that may be expected is a reasonable approximation to such a standard, and the rule adopted under the charter fulfills that condition as applied to the present con