OJornFll IGaui irliDoI ICibraty Cornell University Library KF6785.H21 A treatise on the law of taxation by spe 3 1924 020 035 477 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924020035477 A TREATISE ON" THE LAW OF TAXATION BY SPECIAL ASSESSMENTS BY CHAELES H. HAMILTON OF THE MILWAUKEE BAB. CHICAGO GEORGE I. JONES 1907 ^RIGHt BY CHARLES H. HAMILTON. KF PREFACE. I wrote this book because I thought it was needed. The subject has grown to such magnitude as to demand more complete treatment than can be given it in an article in an encyclopedia or a chapter in a work on Municipal Corpor- ations. When Mr. Welty, in 1886, published his work on Assess- ments, he devoted two chapters to street improvement assess- ments, and cited 170 cases. More than twenty times that number of cases have been necessarily examined by the author in preparing the present treatise. With the exception of the most excellent little work pre- pared as a thesis for a Doctor's d^ree by Mr. Eosewater, more than a decade ago (and to which I acknowledge my- self deeply indebted), this is the pioneer book upon the sub- ject of Special Assessments. Por whatever errors have oc- curred because of that fact, or any other cause attributable to man's inherent limitations, I crave the indulgence of the most generous of all professions. 0. H. Hamilton. Milwaukee, Dec. 2Jf, 1906. TO REGINALD HAMILTON. TABLE OF CONTENTS. CHAPTEE I. OEIGIN, HISTOEY Introductory, 1. Municipal revenues classified, 2. Theory of equivalents, 3. Comparison of amounts of general and special taxes, 4. Origin and history, 5-6. Origin in America, 7. English precedents, 8. Distinction betvpeen special assess- ment and tax, 9. U. S. supreme court, 10. California, 11. Illinois, 12. Mississippi, 12a. New York, 13. Ohio, 14. Pennsylvania, 15. Washington, 16. Wisconsin, 17. Comparative definitions, 18. Distinction between special assess- ment and special taxation, 19. When the word "tax" includes " special assessments," 20. When the word " tax " does not include " special assessments," 21. Alabama, 22. Arkansas, 23. California, 24. Colorado, 25. Connecticut, 28. AND DEJ'INITIOM". Georgia, 27. Illinois, 28. Indiana, 28a. Kansas, 29. Louisiana, 30. Maryland, 31. Missouri, 32. New York, 33. Pennsylvania, 34. Texas, 35. Taxes and assessments defined, 36-38. Legal theories of the power of special assessment, 39. Under the police power, 40-44. Under the power of eminent do- main, 45-47. Under the power of taxation, 48-49. Of the power to levy special as- sessments — constitutional au- thorization, 50-53. Eestraints upon power to levy special assessments, 54. What is meant by " taxation by special assessment," 55. Definition, 56. Objections to the system, 57. Assessment of cost of work, 58. Further objections, 59-64. Merits of the system, 65-66. CHAPTER II. OF CONSTITUTIONAL AND STATUTOET POWEES AND EESTEIO TIONS. Constitutional authority — Equal- ity and uniformity, 67. Alabama, 68. Arkansas, 69-70. California, 71-73. Colorado, 74-75. Vi COlfTENTS. Connecticut, 76. Delaware, 77. Florida, 78. Georgia, 79. Idaho, 80. Illinois, 81-84. Indiana, 85. Kansas, 86. Kentucky, 87. Louisiana, 88. Maine, 89. Maryland, 90. Massachusetts, 90a. Michigan, 91. Minnesota, 92-93. Mississippi, 94. Missouri, 95. Nebraska, 96. Nevada, 97. New Hampshire, 98. New Jersey, 99. New York, 100. North Carolina, 101. North Dakota, 102. Ohio, 103. Oregon, 104. Pennsylvania, 105-106. Rhode Island, 107. South Carolina, 108-109. South Dakota, 110-111. Tennessee, 112. Texas, 113. Vermont, 114. Virginia, 1 15. Washington, 116. West Virginia, 117. Wisconsin, 118-120. Constitutional restrictions — State constitutions not a grant of power, 121. Limitation on taxing power, 122. Who may levy a tas, 123. Effect of constitutional limitation on indebtedness, 124. The fourteenth amendment — Im- portance of, 125. Assessment of cost of work against abutting property, 126-129. The front foot rule, 130-131. Priority of lien, 132. Equal protection of the laws, 133. Due process of law, 134-136. Definition of, 137. Arbitrary legislation, 138. Interest on deferred payments, 139. " Due process " not necessarily ju- dicial process, 140. Requisites of due process — No- tice, 141-144. Opportunity for hearing, 145- 147. What notice sufficient, 148-149. What is not suflSeient notice, 150. What constitutes a taking, 151- 159. What is not a taking, 160-164. Of property damaged for public use, 165-166. Of the constitutionality of stat- utes, 167-169. Legislative omnipotence, 170-182. Of the delegation of power, 183- 184. A continuing power, 185. Express statutory authority neces- sary, 186. Power of special assessment strict- ly construed, 187-189. Statutory powers, 190-194. Statutory construction, 195-201. CHAPTEE III. OF LIMITATIONS ON THE EXERCISE OF THE POWEE. In General, 202-203. Public Purpose, 204-209. Apportionment, 210-232. a. In General, 212. C'ONTEIirTS. Vll Taxing Districts, 213-218. Apportionment by Front Foot, 219-226. , Assessment According to Cost of Work in Front of Each Lot, 227-228. e. Apportionment by Area, 229- 230. f. Assessment by Value, 231. g. Assessment by Benefits, 232. Benefits, 233-241. CHAPTER IV. OF THE PURPOSES FOE WHICH SPBCIAI, ASSESSMEITTS AEB AUTHOEIZED. In General, 242-243. Streets, 244. A. Opening, Widening and Va- cating, 245-247. b. Grading and Paving, 248-249. c. Repairing and Maintenance, 250. d. Culverts, 251. Sidewalks, 252. Country Roads and Highways, 253-254. Bridges and Viaducts, 255. Public Parks, 256-257. Levees, Dykes and Breakwaters, 258. Waterworks, Pipes and Mains, 259-262. Drains and Sewers, 263-270. Irrigating Arid Lands, 271. Sweeping, Sprinkling and Light- ing Streets — Removing Snow, 272-273. Improving Water Courses, 274. Personal Property, 275. Miscellaneous, 276-278. CHAPTER V. WHAT PEOPEB.TT SUBJECT TO SPECIAX ASSESSMENT EXEMPTIONS. In General, 279-280. Public Property, 281-283. Street Railway Property, 284-288. Railroad Property, 289-293. Agricultural Lands, 294. Personal Property, 295. Realty Benefited, 296. Realty Dedicated, 297. Ownership, 298. Street Intersections, etc., 299-301. Location of Property Assessable, 302. "Abutting" Property, 303-304. "Adjacent" Property, 305. "Adjoining ' Property, 306. "Contiguous" Property, 307. Local " or " Vicinity " Prop- erty, 308. "Fronting" Property, 309. What is a " Square," 310. What is a "Block," 311. Exemptions — In General, 312- 316. Cemeteries, 317. Property of Educational, Religious and Charitable Institutions, 318-319. Homesteads, 320. Railroad Property, 321. Conveyances to Avoid Assessment, 322. Till OONTEiN"TS. CHAPTER VI. OP THE INITIATOEY PEOCEEDINGS. In general, 323-326. The petition — In general, 327- 329. Sufficiency of signature and au- thority for, 330-333. Requisites of, 334. Sufficiency of, 335-337. Effect of signing — Estoppel, 338. Dismissal of, 339. CSiallenging jurisdiction, 340. What steps are mandatory — What directory, 341. The resolution — In general, 342. Resolutions sufficient or valid, 343-344. Resolutions insufficient or in- valid, 345. Estimate of cost, 346. Notice — Requisites of, 347-352. Sufficiency of, 353-354. Notices held sufficient, 355-358. Notices held insufficient, 359. What record must show, 360. How given, actual or construct- ual, 361-367. The official paper, 368-369. Publication of, 370. Proof of publication, 371-373. Waiver of, 374-376. Computation of time, 377. Definitions, 378. CHAPTER VII. OF THE PROCEEDINGS NEOEiSSAEY TO ACQTJIEE JUEISDICTIOH' THE OBDINANCE. Necessity for, 379-381. Adoption — Presumption — Rec- ords, 382-383. Requisites to validity, 384-385. Construction of, 386. Effect of repeal of, 387. Must be reasonable, 388. Reference to plans, etc., on file, 389. Omission to state location of im- provement, 390. Must be substantially complied with — Variance, 391-392. Embracing more than one im- provement, 393. Validity — In general, 394-402. Sufficiency of description, 403. Grade ordinances, 404. Paving ordinances, 405-407. Curb ordinances, 408. Sidewalk ordinances, 409. Waterworks ordinances, 410. Sewer ordinances, 411-414. Invalidity — In general, 415-422. Invalid grade ordinances, 423. Invalid paving ordinances, 424. Invalid curb ordinances, 425. Invalid sidewalk ordinances, 426. Invalid waterworks ordinances, 427. Invalid sewer ordinances, 428- 429. Delegation of power, 430-431. Evidence, and burden of proof, 432. When " may " means " must," 433. Publication of, 434. OOITXENTS* IS ■CHAPTEK VIII. OF THE PBOCEEDIWGS NECESSAEY TO ACQXJIBB AWD EETAIW JTTEISraCTION. Jurisdiction — In general, 435, 436. Acquiring jurisdiction by publica- tion, 437. Collateral attack, 438. Powers of council — In general, 439. Discretion of council, 440, 441. What council may do, 442. What council may not do, 443. Delegation of authority, 444. Ministerial powers, 445-447. The contract — In general, 448. Bids and bidders, 449. Lowest bidder, 450. Powers of council in letting, 451. Provisions tending to increase cost, 452. Guarantee of work for a term of years, 453. Performance of contract, 454, 455. Description of work, 456. Time for completion, 457. Extra work, day labor, 458. Patented articles — Monopoly, 459. Assignment of contract, 460. Construction of contract, 461. Liability of city on contract, 462. Abandonment of proceedings, 463. Presumptions, 464. Apportionment — Fixing the tax- ing district, 465-469. Benefits, 470. Conflicting decisions, 471-474. Rule for assessment of benefits, 475-476. Benefits a question of facts, 477-479. What must aflSrmatively appear, 480. Front foot assessments — Com- pliance with statute, 481. Future benefits not to be con- sidered, 482. Offsetting benefits and damages, 483. Objections to assessment — When made, 484. Special taxation, 485. Assessment in excess of value of property, 486. Georgia, 487. Iowa, 488. Kentucky, 489. Maryland, 490. Nebraska, 491. New Jersey, 492. Ohio, 493. Pennsylvania, 494. Miscellaneous rulings, 495. Benefit assessments held valid, 496. Benefit assessments held invalid, 497-499. The front foot rule — In general, 500. Front foot rule as a principle, 501. Front foot rule as a convenience, 502, 503. How frontage determined, 504, 505. Assessments valid under the front foot rule, 506. Frontage assessments held in- valid, 507, 508. COH'TEIirTS, CHAPTER IX, OF THE, PEOCEEBINGS NECESSAET TO EJITAIN" JURISDICTION -^ THEi ASSESSMENT. Commissioners — In general, 509. Appointment — Qualifications, 510-513. Oath of commissioners, 514. Judgment of commissioners, 515-516. Commissioners must act jointly — Signatures, 517. Death or absence of one com- missioner, 518. Objections to report of — When made, 519. Evidence, 520. Commissioners as witnesses, 521. View of premises by, 522. Presumptions as to acts of, 523. Estimate of cost, 524. What expenses may be included in, 525-526. What expenses may not be in- cluded in, 527-528. Exceeding tax limit, 529. Statute of limitations, 530. Suits to vacate assessments, 531. Validity of legislative bond act, 532. Limitation on power to exempt, 633. Plans and specifications, 534. Eminent domain, 535. Condemnation — Effects of, 536 What property assessed, 537. Street intersections, 538. Description of property, 539-540. Assessing each parcel separately, 541. Omission of property from assess- ment, 542. Subdividing lands for assessment purposes, 543. Improvements must be single, 544- 545. Acquiring title, 546. Conditions precedent, 547. Assessment roll, 548-549. Against whom assessment to he made, 550. When assessment may be made, 551. Requisites in making assessment, 552. As a ministerial act, 553. Property in two assessment dis- tricts, 554. Assessment by size or area, 555. Assessment for cost of work, 556- 558. What assessment proceedings must show, 559. Sufficiency of record, 560-561. Conclusiveness of improvement bond, 562. Who may contest assessment, 563. When objections may be urged, 564-567. Evidence — In general, 568. Burden of proof, 569. Prima fade evidence, 570. Evidence as to benefits, 571. Method of assessment, 572-573. Amount of assessment — Modifica- tion, 574. Error and amendment, 575. Judicial notice, 576. Figures, abbreviations and names, 577. Omission of dollar mark, 578. Officers de facto, 579. Dedication, 580. Nuisance, 581. COKTEJNTS. XI CHAPTER X. ASSESSMBSTTS FOE SPECIFIC IMPROVEMEITrS VALID AND INVALID ASSESSMENTS. Grading — In general, 582. Change of grade — General pro- visions, 583-585. Is an improvement, 586. Pavino — Pavement — What con- stitutes, 587-590. What is not a pavement, 591. Street intersections, 592. Resolutions and estimates, 593. Liability of abutting owners, 594. Apportionment of tax, 595. Reconstruction and repairs, 596. Street railways — Liability for paving, 597. Sewers — In general, 598. Assessment by benefits, 599-603. Future benefits, 604. Front foot rule, 605. Sewer districts, 606. Plans and specifications, 607. Private sewers, 608. Outlets, 609. Connections, 610. Assessments and objections, 611-612. Drainage and drainage districts, 613-614. Sidewalks — In general — Neces- sity of notice, 615. Single improvement, 616. What included in, 617. Power of council — How exerdsed, 618. Review of benefits, 619. Liability for cost of sidewalk, 620. Valid and Invalid Assessments Valid assessments, 621. Invalid assessments, 622. CHAPTER XI. CONFIEMATION OF THE ASSESSMENT DAMAGES. Confirmation — In general, 623. Application for confirmation, 624. Bes judicata, C25. Judgment in rem, 626. Objections to confirmation, 627. Insufficient proof of notice, 628. Jurisdiction to enter judgment, 629. Conclusiveness of judgment, 630. When judgment final, 631. Confirmation by common coun- cil, 632. Collateral attack, 633-634. Recital of jurisdictional facts, 635. Reversal of judgment — Prop- erty affected by, 636. Judgment of sale, 637-638. Validity of confirmation, 639. Damages — In general, 640. Determination of authorities on, 641. Liability for damages, 642. When city not liable, 643. Damages from change of grade, 644-649. Ordinance does not cause dam- age, 650. Damages for taking, 651-653. Measure of — In general, 654- 657. Measure of — Change of grade, 658-660. Measure of — Taking, 661. To whom damages belong, 662. Xll CONTENTS. Consequential damages, 663. Interest, 664. The jury, 665. View of premises, 666. Questions for jury, 667. CHAPTER XII. COLLECTIOIT OF THE TAX, AlTD MBTHOOJ OB" ENFOElCEMENT. Personal liability, 668. In rem. 669-670. Municipal liability, 671-672. Cause for liability, 673. Liability arising from creation of special fund, 674-676. Reasons for non-liability, 677-678. Collection — In general, 679-680. Collection by city, 681. Collection by contractor, 682. Contract induced by fraud, 683. Defective or unfinished contracts, 684. Remedy of contractor, 685. Collection from property exempt from execution, 686. Penalties for non-payment, 687. Limitations, 688. Who may collect, 689. Completion of work, 690. Pleading, 691. Counterclaim — Demurrer, 692. Evidence — Prima facie proof, 693. Burden of proof, 694. Mandamus, 695. When mandamus will not lie, 696. Judgment of sale, 697. What may be shown on applica- tion for, 698. Form and validity of judgment, 699. The sale, 700. Collection from railroads, 701. When sale void — Oa/oeat emptor, 702. Defense to collection proceedings, 703. What defenses available, 704-705. Defenses not available, 706. Liens — In general, 707. Priorities, 708. Discharge of, 709. Filing or establishing, 710. Enforcement — Parties, 711. Foreclosure of, 712. Evidence in foreclosure, 713. Defenses in foreclosure, 714. Enforcement of, 715. Merger, 716. Payment, in general — Bonds, 717. Payment in installments, 718. Payment from general fund, 719. When payment neither waiver nor estoppel, 720. Interest, 721. Who should make payment, 722. CHAPTER XIII. DTJTIBe, EIGHTS, AND REMEDIES OF THE TAX PAYEE. Estoppel — In general, 723. Estoppel by municipality, 724. Estoppel by signing petition, 725. Estoppel to deny jurisdiction, 726. When landowner estopped, 727- 728. Active participation in causing improvement, 729. Acceptance of improvement, 730. CONTESNTS* XIU ■Unconstitutionality of statute, 731. Taking action before completion of work, 732. Elements of estoppel — juris- diction, 733. When grantee not estopped, 734. Wlien landowner not estopped, 735. Laches, 736. Waiver and acquiescence, 737 I^aud, 738-740. Tax deeds and certificates, 741. Purchaser at tax sale — In gen- eral, 742. Caveat emptor, 743. Subsequent purchaser, 744. Ctertiorari — In general, 745. When writ will issue, 746-747. Action of court, 748. When writ will not issue, 749, Assessment for benefits, 750. Laches, 751. To whom writ directed, 752. Answer to petition, 752a. Pleading and practice, 753. When court will not interfere, 754. Appeal — Regulation by statute, 755. When allowable, 756. What matters considered on, 757. When appeal exclusive remedy, 758-759. When appeal not exclusive rem- edy, 760. Waiver, 761. Burden of proof, 762. Mandamus, 763-764. Quo warranto, 765. Trespass, 766-768. Recovery back — In general, 769- 770. Facts outside the record, 771. Failure of jurisdiction, 772. Ignorance or coercion, 773. Abandoning work — Failure of consideration, 774. Unconstitutional assessment, 775. Volimtary and compulsory pay- ments, 776. Who may recover, 777. Mistakes in payment, 778. Limitations, 779. When no recovery, 780. Vested li^ts, 781. Assessment valid on its face, 782. Assessment invalid on its face, 783. Rule alike as to taxes and as- sessments, 784. Authoriiy of city to refund, 785. Recovery because of failure of consideration, 786. Equity — In general, 787-789. Injunction — When prematiire,. 790. Cloud on title, 791. Apparent defect, 792. Extrinsic evidence, 793. Failure to make timely objec- tion, 794. Assessment in excess of benefits,. 795-796. Fraud, 797. Nuisance, 798. Adequate remedy at law, 799. Payment or tender, 800-801. When equity will not interfere, 802-803. Burden of proof, 804. Parties, 805. Pleadings, 806-807. De minimis, 808. Application of equity principles, to facts, 809-815. XIV CONTENTS, CHAPTER XIV. :EEASSESSMENTS, AITD PEOCEKDmOS TO VALIDATE VOID ASSESSMENTS. Curative acts — In general, 816- 818. Limitations upon legislative power, 819-820. Retroactive laws, 821. Jurisdiction, 822. Reassessment statutes, 823. Constitutionality of, 824. Validity of, 825. Construction of, 826. Must be based on benefits, 827. Statute of limitations, 828. Continuation of original proceed- ings, 829. Payment of interest, 830. Duty of property owner, 831. When reassessments may be or- dered, 832-837. When not permitted, 838-841. TABLE OF CASES. (The references are to sections.) A. Aberdeen v. Lucas— 37 Wash. 190; 79 Pae. 632 284, 305 Abraham v. Louisville— 23 Ky. L. Rep. 375 ; 62 S. W. 1041 230 Adams v. Beloit— 105 Wis. 363; 47 L. R. A. 441; 81 N. W. 869,211, 327 Adams v. Brennan— 177 111. 194; 42 L. R. A. 718; 69 Am. St. Rep. 222; 52 N. E. 314 366, 410 Adams v. Fisher— 63 Tex. 651 29, 127, 299, 300 Adams v. Fisher— 75 Tex. 657; 6 S. W. 772 210 -»-J — ^ -dymAell la~ ^'^" '■"° III IllHIIIIIHHmll -I^^S^F- ERRATUM Table of Cases References are to pages Alameda etc. Co. v. Williams — 70 uai. oai; i-i fn.u. ««^- -.., Alameda Mae. Co. v. Pringle— 130 Cal. 226; 52 L. R. A. 264; 80 -^aisfii. Am. St. Rep. 124; 62 Pac. 394 414 Alberger v. Baltimore— 64 Md. 1 ; 20 Atl. 988 168, 298, 396 Albuquerque v. Zeiger- 5 N. Mex. 674; 27 Pac. 315 778 Alcorn v. Hamer— 38 Miss. 652 73, 176, 219 Alcorn v. Philadelphia— 112 Pa. St. 494; 4 Atl. 185 132, 213 Alden v. Springfield— 121 Mass. 27 550 Aldis V. South Park Comr's— 171 111. 424; 49 N. E. 565 759 Alexander v. Mayor etc. — 5 Gill 383; 46 Am. Dec. 630 42, 70, 107, 108, 191, 192, 207, 256 Alexander v. Milwaukee— 16 Wis. 248 113, 116, 142, 425, 556, 646 Alexander v. Taeoma— 35 Wash. 366; 77 Pac. 686 308, 478, 617, 618, 621, 821, 824, 832, 835, 840 Allegheny v. West. Pa. R. Co.— 138 Pa. St. 375; 21 Atl. 763 201, 208, 242, 448, 464 Allen V. Armstrong — 16 Iowa 508 810 Allen V. Chicago— 57 III. 264 321 Allen V. Chicago— 176 III. 113; 52 N. E. 33 497 Allen V. Commissioners— 176 111. 113; 52 N. E. 33 525 Allen V. Davenport— 107 Iowa 90; 77 N. W. 532 168, 243, 254, 412, 419, 470, 508, 562, 791, 792 XV XIV CONTENTS. CHAPTER XIV. IKEASSESSMElirTS, AITO PEOCEEDINGS TO VALIDATE VOIB ASSESSMENTS. Curative acts — In general, 816- 818. Limitations upon legislative power, 819-820. Retroactive laws, 821. Jurisdiction, 822. Reassessment statutes, 823. Constitutionality of, 824. Validily of, 825. Construction of, 826. Must be based on benefits, 827. Statute of limitations, 828. Continuation of original proceed- ings, 829. Payment of interest, 830. Duty of property owner, 831. When reassessments may be or- dered, 832-837. When not permitted, 838-841. TABLE OF CASES. (The references are to sectiotis.) A. Aberdeen v. Lueaa— 37 Wash. 190; 79 Pae. 632 284, 305 Abraham v. Louisville— 23 Ky. L. Rep. 375; 62 S. W. 1041 230 Adams v. Beloit— 105 Wis. 363; 47 L. R. A. 441; 81 N. W. 869,211, 327 Adams v. Brennan— 177 111. 194; 42 L. R. A. 718; 69 Am. St. Rep. 222; 52 N. E. 314 366, 410 Adams v. Fisher— 63 Tex. 651 29, 127, 299, 300 Adams v. Fisher— 75 Tex. 657; 6 S. W. 772 210 Adams v. Lindell— 72 Mo. 198 74 Adaims v. Shelbyville— 154 Ind. 467; 49 L. R. A. 797; 77 Am. St. Rep. 484; 57 N. E. 114 100, 161, 184, 190, 232, 289, 394, 441, 468, 776 Adams Co. v. Quincy— 130 111. 566; 6 L. R. A. 155; 22 N. E. 624 35, 39, 90, 234, 251, 254, 332, 346, 355 Adeock v. Chicago— 160 111. 611 ; 43 N. B. 589 279, 493 Adcock V. Chicago— 172 111. 24; 49 N. E. 1008 824 Addy V. Janesville— 70 Wis. 401 ; 35 N. W. 931 631 Addyston Pipe & Steel Co. v. Ooriy— 197 Pa. St. 41; 80 Am. St. Rep. 812; 46 Atl. 1035 661 Affeld V. Detroit— 112 Mich. 560; 71 N. W. 151 656, 658 Ahem t. Board of Improvement — 69 Ark. 68; 61 S. W. 575 185, 234, 240, 245, 261, 263 Ahrens v. Minnie Creek Drain Dist. — 170 111. 362; 48 N. E. 971.. 593 Alameda etc. Co. v. Huflf— 57 Cal. 331 317 Alameda etc. Co. v. Williams— 70 Cal. 534; 12 Pac. 530 409, 682 Alameda Mac. Co. v. Pringle— 130 Cal. 226; 52 L. E. A. 264; 80 Am. St. Rep. 124; 62 Pae. 394 414 Alberger v. Baltimore— 64 Md. 1 ; 20 Atl. 988 168, 298, 396 Albuquerque v. Zeiger— 5 N. Mex. 674; 27 Pac. 315 778 Alcorn v. Hamer — 38 Miss. 652 73, 176, 219 Alcorn v. Philadelphia— 1 12 Pa. St. 494; 4 Atl. 185 132, 213 Alden v. Springfield— 121 Mass. 27 550 Aldis V. South Park Comr's— 171 111. 424; 49 N. E. 565 759 Alexander v. Mayor etc. — 5 Gill 383 ; 46 Am. Dec. 630 42, 70, 107, 108, 191, 192, 207, 256 Alexander v. Milwaukee — 16 Wis. 248 113, 116, 142, 425, 556, 646 Alexander v. Tacoma^35 Wash. 366; 77 Pac. 686 308, 478, 617, 618, 621, 821^ 824, 832, 835, 840 Allegheny v. West. Pa. R. Co.— 138 Pa. St. 375; 21 Atl. 763 201, 208, 242, 448, 464 Allen V. Armstrong — 16 Iowa 508 810 Allen V. Chicago— 57 111. 264 321 Allen V. Chicago— 176 111. 113; 52 N. E. 33 497 Allen V. Commissioners— 176 111. 113 ; 52 N. E. 33 525 Allen V. Davenport— 107 Iowa 90; 77 N. W. 532 168, 243, 254, 412, 419, 470, 508, 562, 791, 792 xv: XVI TABLE OF CASES. (The references are to sections.) Allen V. Davenport^-65 C. C. A. 641; 132 Fed. 209 41, 133, 404, 406, 817 Allen V. Decatur— 23 111. 332; 76 Am. Dec. 192 762 Allen V. Drew— 44 Vt. 174 41, 82, 158, 170, 172, 201, 221, 231, 783, 78& Allen V. Galveston— 61 Tex. 302 22, 134, 175, 608 Allen V. Janesville— 35 Wis. 403 143, 662 Allen V. Portland— 35 Ores. 420; 58 Pac. 509 136, 272, 273, 274, 275, 279, 285, 414 AUentown v. Henry- 73 Pa. St. 404 201, 222 Allison Land Co. v. Tenafly— 68 N. J. L. 205; 52 Atl. 231 454 Allman v. Dist. of Col.— 3 App. D. C. 8 249 Alton V. Foster— 74 111. App. 511 774, 820 Alton V. Foster— 207 111. 150; 69 N. E. 783 682 Alton V. Middleton's Heirs— 158 111. 442; 41 N. E. 926 330, 342,343, 367, 379 Alvord V. Syracuse— 163 N. Y. 158; 57 N. E. 310 133, 779, 782 Amberson Ave.— 179 Pa. St. 634; 36 Atl. 354 561 American Bonding Co. v. C^ttumwa — 137 Fed. 572 572, 573 American etc Co. v. Wagner— 139 Pa. St. 623; 21 Atl. 160 407 American Hide & Leather Co. v. Chicago — 203 111. 451; 67 N. E. 9yg 330 3*72 614 Amery v. ' Keokuk— 72 fowa' 761 • ' 30 N. ' W.' 780 .".'.'.".'.'.'.".'. . . .' . 168^ 298 Amsterdam, In re— 126 N. Y. 158; 27 N. E. 272 301, 449 Anderson, In re— 60 N. Y. 457 314 Anderson, In re— 109 N. Y. 554; 17 N. E. 209 429 Anderson v. Chicago— 187 111. 264; 58 N. E. 1094 375 Anderson, etc., Corporation v. Gtould — 6 Mass. 44 ; 4 Am. Dec. 80 . . 689 Anderson v. Holland — 40 Mo. 600 703 Anderson v. Kerns Drain Co. — 14 Ind. 199 ; 77 Am. Dec. 63 66, 149, 224 Anderson v. Passaic — 44 N. J. L. 580 500 Andcrton v. Milwaukee— 82 Wis. 279; 15 L. R. A. 830; 52 N. W. 95 91, 145 Andrews v. Chicago — 57 111. 239 322 Andrews v. Love — 16 Kan. 264; 26 Pac. 746 778 Andrews v. Love — 50 Kan. 701 ; 31 Pac. 1094 778 Andrews v. People— 83 III. 529 616 Andrews v. People — 84 111. 28 616 Andrews v. People— 164 111. 581 ; 45 N. E. 965 349 Andrews v. People— 173 111. 123 ; 50 N. E. 335 616 Angell V. Cortright— 111 Mich. 223; 69 N. W. 486 416 Annie Wright Seminary v. Tacoma — ^23 Wash. 109 ; 62 Pac. 444 . . 618, 620, 725, 791, 792, 821 Ankeny v. Henningsen — 54 la. 29 ; 6 N. W. 65 677 Annapolis v. Harwood— 32 Md. 471; 3 Am. Rep. 161 133, 134 Aplin V. Fisher — 84 Mich. 128; 47 N. W. 574 275, 278 Appeal of Hewitt — 88 Pa. St. 55 811 Application for Drainage, In re — 35 N. J. L. 497 224 Argenti v. San Francisco — 16 Cal. 256 660 Argentine v. Daggett — 53 Kan. 491 ; 37 Pac. 14 564 Argentine v. Simmons — 54 Kan. 699; 39 Pac. 181, 182 278, 509 Arlington v. Cutter — 114 Mass. 344 601 Armstrong v. Chicago — 61 111. 352 321 Armstrong v. Ogden — 12 Utah 476 ; 43 Pac. 119 276 Armstrong v. St. Paul— 30 Minn. 299; 15 N. W. 174 155 Arnold v. Cambridge — 106 Mass. 352 , 595 TABLE OF CASES. XVll (The references are to sections.) Arnold V. Fort Dodge— 111 la. 152; 82 N. W. 495 312, 316, 337, 717, 722 Arnold v. Knoxville, (Tenn.)— 90 S. W. 469 81, 450, 774 Arimond v. G. B. & M. Canal Co.— 31 Wis. 316 113, 646 Asberry v. Roanoke — 91 Va. 562; 42 L. E. A. 636; 22 S. E. 360. . 201, 654 AsheviUe v. Means— 29 N. C. (7 Ired., L.) 406 134 Aster, In re— 50 N. Y. 363 382 Astor, In re— SB N. Y. 617 211 Astor V. New York— 5 Jones & S. 539 10 Atchison v. Bartholomew — 4 Kan. 135 140 Atchison v. Byrnes — 22 Kan. 65 661 Atchison v. Price — 45 Kan. 296; 25 Pac. 605 501, 584, 587, 589 Atkins V. Boston— 188 Mass. 77; 74 N. E. 292 458 Atkinson v. Newton — 169 Mass. 240; 47 N. E. 1029 192, 555, 601, 555, 647, 722 Atlanta v. First Presb. Church— 86 Ga. 730; 12 L. E. A. 852; 13 S. E. 252 261 Atlanta v. Gabbett— 93 Ga. 266 ; 20 S. E. 306 378, 468 Atlanta v. Hamlein— 96 Ga. 381 ; 23 S. E. 408 187, 462 Atlanta v. Hamlein— 101 Ga. 697; 29 S. E. 14 783 Atlanta v. Smith— 99 Ga. 462; 27 S. E. 696 276 Atlanta v. Stein— 111 Ga. 789; 51 L. E. A. 335; 36 S. E. 932. .. . 410 Atlanta etc. Ry. Co. v. Atlanta— 111 Ga. 255; 36 S. E. 667 237 Auburn v. Paul— 84 Me. 212; 24 Atl. 817 69, 191, 310, 749 Auditor General v. Calkins— 136 Mich. 1; 98 N. W. 742 308 320 439 731 Auditor General v. Chase— 132 Mich. 630; 94 S. W. 178'. . . . .'.293', 568 Auditor General v. Hoffman- 132 Mich. 198; 93 N. W. 259 305, 433, 617, 732 Auditor General v. Maier— 95 Mich. 127 ; 54 N. W. 640 724 Audrey v. Dallas— 13 Tex. Civ. App. 442; 35 S. W. 726 720 Auer V. Dubuque— 65 Iowa 650; 22 N. W. 914 105 Augusta v.. King— 115 Ga. 454; 41 S. E. 661 105 Augusta V. Murphy— 79 Ga. 101; 3 S. E. 326 19, 133 Austin V. Seattle— 2 Wash. 667 ; 27 Pac. 557 12, 83, 170 Ayer v. Chicago— 149 111. 262; 37 N. E. 57. 516 Ayer v. Somerville— 143 Mass. 585; 10 N. E. 457 588 B. Bacon v. Savannah— 86 Ga. 301 ; 12 S. E. 580 129, 167, 336 Bacon v. Savannah— 91 Ga. 500 ; 17 S. E. 749 135, 156 Bacon v. Savannah— 105 Ga. 62; 31 S. E. 127 334, 451, 677 Baker v. Clem— 102 Ind. 109; 26 N. E. 215 727 Ball V. Tacoma — 9 Wash. 592; 38 Pac. 133 ....283, 720 Ballard v. Appleton— 26 Wis. 67 778 Ballard v. Ross— 38 Wash. 209 ; 80 Pac. 429 699 Baltimore v. Green Mount Cemetery — 7 Md. 517 15, 192 Baltimore v. Johns Hopkins Hospital — 56 Md. 1 168 Baltimore v. Ullman— 79 Md. 469 ; 30 Atl. 43 820 B. O. & C. R. Co. V. Wagner— 43 Ohio St. 75; 1 N. E. 91 300 Banaz v. Smith— 133 Cal. 102; 65 Pac. 309 109, 167 Bank v. Port Townsend— 16 Wash. 450; 47 Pac. 896 663 Bank of Columbia v. Portland — 41 Greg. 1; 67 Pac. 1112 136, 195, 315, 319, 324 Banks v. New Albany— 11 Ind. 139 66 XVlll TABLE OF CASES. (The references are to sections.) Barber v. Chicago— 152 111. 37; 38 K E. 253 335, 364, 492, 526 Barber A. Pav. Co. v. Denver— 19 C. C. A. 139; 36 U. S. App. 499; 72 Fed. 336 660 Barber A. Pav. Co. v. Edgarton— 125 Ind. 455; 25 N. E. 436.. 190, 288 Barber A. P. Co. v. Erie— 203 Pa. St. 120; 52 Atl. 22 677 Barber A. Pav. Co. v. Field (Mo.)— 86 S. W. 860 786 Barber A. Pav. Co. v. French— 158 Mo. 534; 54 L. E. A. 492; 58 S. W. 934 299, 401 Barber A. Pav. Co. v. French— 181 U. S. 324; 45 L. ed. 879; 21 Sup. Ct. Eep. 625 169 Barber Asphalt Pav. Co. v. Gogreve — 41 La. Ann. 251; 5 So. 848. . 69, 168 Barber A. Pav. Co. v. Harrisburg— 29 L. R. A. 401; 12 C. C. A. 100; 28 U. S. App. 108; 64 Fed. 283; 62 Fed. 565 660 Barber A. Pav. Co. v. Hezel— 155 Mo. 391; 48 L. E. A. 285; 56 S. W. 449 413 Barber A. Pav. Co. v. Hunt— 100 Mo. 222; 8 L. R. A. 110; 18 Am. St. Rep. 530; 13 S. W. 98 424 Barber A. Pav. Co. v. Peck— 186 Mo. 506 ; 85 S. W. 387 790 Barber A. Pav. Co. v. UUman— 137 Mo. 543 ; 38 S. W. 458 343, 359, 413, 433, 694 Barber A. Pav. Co. v. Watt— 51 La. Ann. 1345; 26 So. 70 135, 142, 653, 828 Barclay, In re— 91 N. Y. 430 209 Barden v. Portage— 79 Wis. 126 ; 48 N. W. 210 627, 660 Barkley v. Oregon City— 24 Greg. 515; 33 Pae. 978 273 Barlow v. Tacoma— 12 Wash. 32; 40 Pae. 382 721 Barnes v. Atchison— 2 Kan. 455 168, 536 Barnes v. Dyer- 56 Vt. 469 193, 201 Barr v. Omaha— 42 Neb. 341 ; 60 N. W. 591 637 Bartlett v. Wilson— 50 Vt. 23 ; 8 AO. 321 814 Bartraln v. Bridgeport — 55 Conn. 122 ; 10 Atl. 470 600 Bass V. Chicago— 195 111. 109 ; 62 N. E. 913 285 Bass V. People— 203 111. 206 ; 67 N. E. 806 514 Bass V. So. Park Com'rs— 171 111. 370; 49 N. E. 549 219, 460 Bassford, In re— 50 N. Y. 509 382 Bates V. Adamson (Cal. App.) — 84 Pae. 51 753 Bates V. Twist— 138 Cal. 52; 70 Pae. 1023 528 Batterman v. New York— 65 App. Div. 576; 73 N. Y. Supp. 44... 221 Batty V. Hastings — 63 Neb. 26 ; 88 N. W. 139 137, 272, 720, 728, 731, 732, 737 Baumau v. Eoss— 167 U. S. 548; 42 L. ed. 270; 17 Sup. Ot. Eep. 966 203, 207 Baxter v. Jersey City— 36 N. J. L. 188 175 Bayonne v. Morris— 61 N. J. L. 127; 38 Atl. 819 244, 842 Bay Eock v. Bell— 133 Cal. 150; 65 Pae. 299 137, 421, 519 Beach v. Chicago— 157 111. 659; 41 N. E. 1117 343, 345, 363 Beach v. Chicago— 193 111. 162; 61 N. E. 1015 375 Beals V. Brookline — 174 Mass. 1 ; 54 N. E. 339 551 Beard v. Brooklyn — 31 Barb. 142 660 Bears v. Boston— 173 Mass. 71; 43 L. E. A. 834; 53 N. E. 138 192 Bears v. Street Commissioners — 173 Mass. 350; 53 N. E. 786.... 192 Beaser v. Ashland— 89 Wis. 28; 61 N. W. 77 738, 779, 780 Beaser v. Barber A. P. Co. — 120 Wis. 599; 98 N. W. 525 788, 789 Beatrice v. Brethren Church — 41 Neb. 358; 59 N. W. 932, 934 27 Bcaudry v. Palmer — 32 Cal. 269 654 Beaudry v. Valdez— 32 Cal. 269 133, 290, 428, 569, 693, 753 TABLE OF CASES. XIX (The references are to sections.) Beaumont v. Wilkesbarre— 142 Pa. St. 198 ; 21 Atl. 888 78, 170, 381, 478 Beaver Dam v. Frings — 17 Wis. 404 404 Beck V. Holland— 29 Mont. 234; 74 Pao. 410 396, 433, 455, 524 Beck V. Obst— 12 Bush. 268 552 Becker v. B. & O. R, R. Co.— 17 Ind. App. 324, 326; 46 N. E. 685. . 680 Becker v. Chicago— 208 111. 126; 69 N. E. 748 504 Becker v. Hudson — 100 Ky. 450 351 Becker v. Washington— 94 Mo. 375; 7 S. W. 291 342, 383 Bedard v. Hall— 44 111. 91 35, 63, 187, 210, 481 Beecher v. Detroi1^92 Mich. 268; 52 N. W. 731.... 193, 397, 465, 537 Beechwood Avenue, In j-e— 194 Pa. St. 86; 45 Atl. 127, 1093. .210, 218 Beechwood Ave. Sewer— 179 Pa. St. 490; 36 Atl. 209 580 Beekman St., In re — 4 Brad. 503 151 Beidler Manfg. Co. v. Muskegon — 63 Mich. 44; 29 N. E. 678 531 Belknap v. Belknap — 2 Johns ch. 472 ; 7 Am. Dec. 548 776 Bell V. Norwood— 8 Ohio C. C, N. S. 435 508, 715, 719 Bellevue v. Peacock— 89 Ky. 495; 25 Am. St. Rep. 552; 12 S. W. ]^Q42 119 699 Bellevue Imp. Co. v. Bellevue— 39 isTeb. 876 ; 58 N. W. 446 .' 506, 774, 788, 79a Bellingham Bay etc. Co. v. New Whatcom — 17 Wash. 496; 50 Pae. 477 747 Beltzhoover v. Beltzhoover's Heirs — 173 Pa. St. 213; 33 Atl. 1047.. 259 Beltzhoover v. Maple— 130 Pa. St. 335; 18 Atl. 650 595 Bemis v. MeCloud — 4 Neb. (Unof. ) 731 ; 97 N. W. 828 797 Beniteau v. Detroit-^1 Mich. 116; 1 N. W. 899 501, 502 Bennett v. Seiberi^lO Ind. App. 369; 35 N. E. 35; 37 N. E. 1071 219, 23& Benson v. Bunting— 141 Cal. 462; 75 Pac. 59 523 Benson v. Waukesha— 74 Wis. 31 ; 41 N. W. 1017 396, 629 Benton Street Case — 9 La. Ann. 446 69 Berdel v. Chicago— 217 111. 429 ; 75 N. E. 386 45a Bergen v. State— 32 N. J. L. 490 821 Berghaus v. Harrisburg— 122 Pa. St. 289; 16 Atl. 365 707 Berry v. Chicago— 192 III. 154; 61 N. E. 498 338 Berry v. People— 200 111. 231; 66 N. E. 1072 432. Berry v. People— 202 111. 231 ; 66 N. E. 1072 618, 723 Besinger v. Dist. of Ctol.— 6 Mackey 285 308 Besinger v. Dist. of Col. — 6 Mackey 352 308 Betts v. Naperville— 214 111. 380; 73 N. E. 752 322, 487, 490, 499, 505, 506 Beveridge v. Livingston — 54 Cal. 54 147, 421 Bibel V. People— 67 111. 172 466, 647, 648 Bickerdike v. Chicago— 185 111. 280; 56 N. E. 1096 341, 363, 364, 526, 578, 746 Bickerdike v. Chicago— 203 111. 636; 68 N. E. 161 292, 387, 504 Bickett V. Peoria— 185 111. 369; 57 N. E. 30 311 Bidwell V. Coleman— 11 Minn. 78; Gil 45 73 Bidwell V. Huflf— 103 Fed. 362 783, 784 Bidwell V. Pittsburg— 85 Pa. St. 412; 27 Am. Rep. 662 720 Bigelow V. Boston— 120 Mass. 326 547 Bigelow V. Chicago — 90 111. 49 517 Bigelow V. Los Angeles— 85 Cal. 614; 24 Pac. 778 794 Biggins Estate v. People— 193 111. 601; 61 N. E. 1124 372, 376, 381, 680 Big Rapids v. Mecosta Co. — 99 Mich. 351; 58 N. W. 358 25ft TABLE OP CASES. (The references are to sections.) Bill V. Denver— 29 Fed. 344 660 Billings V. Chicago— 167 111. 337; 47 N. E. 731 257, 264, 492, 623 Bingham v. Pittsburg— 147 Pa. St. 353; 23 Atl. 395 821 Birdseye v. Clyde— 61 Ohio St. 27; 55 N. E. 169 720, 783, 784 Bishop V. Marks— 15 La. Ann. 147 176, 219 Bishop V. Tripp— 15 E. I. 466; 8 Atl. 692 79, 223, 233, 587 Biss V. New Haven — 42 Wis. 605 766 Blade v. Water Commissioners— 122 Mich. 366; 81 N. W. 271 231 Blair v. Atchison— 40 Kan. 353; 19 Pac. 815 572 Blair v. Liiring- 76 Cal. 134; 18 Pac. 153 419 Blake v. People— 109 111. 504 614 Blanehard v. Barre, Vt.— 77 Vt. 420; 60 Atl. 970 117, 134, 531, 775, 782 Blaaden v. Fort Dodge— 102 la. 441; 71 N. W. 411 290, 331, 540, 626, 729 Blanding v. Burr— 13 Cal. 343 59 Bliss V. Chicago— 156 111. 584; 41 N. E. 160 343, 546 Blodgett, In re— 91 N. Y. 117 423, 425 Bloomington v. C. & A. R. Co.— 134 111. 451; 26 N. E. 366 152, 188, 204, 216, 370, 467, 614 Bloomington v. Latham— 142 111. 462; 18 L. E. A. 487; 32 N. E. 506 15, 35, 86, 109, 110, 339, 515 Bloomington v. Mller— 84 111. 621 635 Bloomington v. Phelps— 149 Ind. 596; 49 N. B. 581 726 Bloomington v. Pollock— 141 111. 346; 31 N. E. 146 643 Bloomington v. Eeevea— 177 111. 161; 52 N. E. 278.... 270, 278, 281 Bloomington Cem. Asso. v. People— 139 111. 16; 28 N. E. 1076 258, 517 Blount V. Janesville— 31 Wis. 648 84, 211 Blount V. People— 188 111. 538; 59 N. E. 241 383, 392 Blue V. Wentz— 54 Ohio St. 247 ; 43 N. E. 493 593 Blue Island v. Eames— 155 111. 398; 40 N. E. 615 221 Bluffton V. Miller— 33 Ind. App. 521 ; 70 N. E. 989 133, 287, 291, 420, 774, 806 Boals V. Bachman— 201 111. 340; 66 N. E. 336 713, 737 Board etc. v. Fallen— HI Ind. 410; 12 N. E. 298 131 Board etc. v. Fallen— 118 Ind. 158; 20 N. E. 771 502 Board etc. v. People — 219 111. 83; 76 N. E. 75 267, 616 Board of Ctouncilmen v. Murray— 99 Ky. 422; 36 8. W. 180 359 Board of Directors v. Houston— 71 111. 318 86 Board of Education v. Toledo — 48 Ohio St. 87; 26 N. E. 404 234 Board of Improvement v. School District — 56 Ark. 354; 16 L. E. A. 418; 35 Am. St. Rep. 108; 19 S. W. 969 260 Board of Supervisors v. Murray — 56 111. 160 764 Boardman v. Beckwith — 18 la. 292 810 Boehme v. Monroe— 106 Mich. 401; 64 N. W. 204.. 440, 503, 513, 558 Bogert V. Elizabeth — 27 N. J. Eq. 568 107 Boice V. Plainfield — 38 N. J. L. 95 309 Bolton V. Cleveland— 35 Ohio St. 319 798 Bolton V. Gilleran— 105 Cal. 244; 45 Am. St. Rep. 33; 38 Pac. 881 403, 778 Bond V. Kenosha— 17 Wis. 284 84, 85 Bond V. Newark— 19 N. J. Eq. 376 417 Bonsall v. Lebanon — 19 Ohio 418 77, 141 Boom Co. V. Patterson— 98 U. S. 403; 25 L. ed. 206 642 Boorman v. Santa Barbara — 65 Cal. 313 ; 4 Pac. 31 345 TABLE OB" CASES. XXI (The references are to sections.) Borchardt v. Wausau Boom Co. — 54 Wis. 107; 41 Am. Rep. 12; 11 N. W. 440 647 Bergman v. Detroit— 102 Mich. 261; 60 N. W. 696 619, 648 Boston V. B. & A. R. Co.— 170 Mass. 95; 49 N. E. 95 192, 264 Boston etc. R. R. Co. v. State— 60 N. H. 87 75 Bow V. Sanith— 9 Mod. 94 223 Bowditch V. Supt. etc.— 168 Mass. 239; 46 N. E. 1026 286 Bowen v. Chicago— 61 111. 268 835 Bowers v. Braddock— 172 Pa. St. 596; 39 Atl. 759 747 Bowman v. People— 137 111. 436; 27 N. E. 598-600 685 Bowman v. Wood — 11 111. 203 324 Bowne v. Logan — 43 N. J. L. 421 308 Boyce v. Txiliey- 163 Ind. 202; 70 N. E. 531 397, 398, 587, 591, 618, 619 Boyd V. Milwaukee— 92 Wis. 456; 66 N. W. 603 145, 219, 235, 271, 415, 571, 575 Boyd V. Murphy— 127 Ind. 174; 25 N. E. 702 408, 409 Boyden v. Brattleboro— 65 Vt. 504; 27 Ad. 164 821 Boynton v. People— 155 III. 66; 39 N. E. 622 493, 495 Boynton v. People— 159 111. 553; 42 N. E. 842 715 Braekett v. People— 115 111. 29; 3 N. E. 723 616 Bradford v. Chicago— 25 111. 411 766, 767 Bradford v. Pox— 171 Pa. St. 343; 33 Atl. 85 373, 729 Bradford v. Pontiae— 165 111. 612; 46 N. E. 794 323, 366, 374, 380 Bradley v. McAtee— 7 Bush 667; 3 Am. Rep. 309 68, 122, 132, 147, 177, 191 Brady, In re— 85 N. Y. 268 433, 569 Brady v. Bartlett— 56 Cal. 350 138, 428 Brady v. Hayward— 114 Mich. 326; 72 N. W. 233 738 Brady v. King— 53 Cal. 44 59, 299, 814 Brady v. Mayor— 20 N. Y. 312 407, 420 Brady v. Page— 59 Cal. 52 297 Bramhall v. Bayonne — 35 N. J. L. 476 485 Brand v. Multnomah Co.— 38 Oreg. 79; 50 L. R. A. 389; 84 Am. St. Rep. 772; 60 Pac. 390; 62 Pac. 209 811, 812 Brands v. Louisville— 111 Ky. 56 ; 63 S. W. 2 772 Brennan v. Buffalo— 162 N. Y. 491; 57 N. E. 81 504, 510, 733 Brennan v. St. Paul — 44 Minn. 464; 47 N. W. 55 540 Bretholt v. Wilmette— 168 111. 162; 48 N. E. 38 486, 496 Brevoort v. Detroit— 24 Mich. 322.. 193, 211, 429, 439, 756, 820, 838 Brewer v. Elizabeth— 66 N. J. L. 547; 49 Atl. 480.. 485, 603, 730, 821 Brewer v. Springfield — 97 Mass. 152 179, 192 Brewster v. Davenpori^51 Iowa 427; 1 N. W. 737 333, 401 Brewster v. Peru— 180 111. 124; 54 N. E. 233 381 Brewster v. Syracuse — 19 N. Y. 116 122 Bridge V. Grand Forks— 1 N. D. 300; 10 L. R. A. 165; 47 N. W. ggQ g2 1 Bridgeport V. N. Y. & N. H. R. Co.— 36 Conn. 255; 4 Am. R«p. 63 19, 228, 242 Briggs V. Whitney — 159 Mass. 97 219 Briggs V. Whitney — 159 Mass. 383; 34 N. E. 179 219 Bright V. McCullough— 27 Ind. 223 66 Brightman v. Kimer — 22 Wis. 54 268 Brink V. Dunmore — 174 Pa, St. 395; 34 Atl. 598 762 Broad St. etc., In re— 165 Pa. St. 475; 30 Atl. 1007.... 255, 263, 724 Broadway, etc., Church v. McAtee — 8 Bush 508; 8 Am. Rep. 480 68, 130, 131, 177, 260, 445, 651 XXll TABLE OF CASES. (The references are to sections.) Brock V. Luning— 89 Cal. 316 ; 26 Pac. 972 135, 421 Brodhead v. Milwaukee— 19 Wis. 636; 88 Am. Dec. 711 155 Brookfield v. Sterling— 214 111. 100; 73 N. E. 302 270 Brooks V. Chicago— 168 111. 60; 48 N. E. 136 189, 532, 533 Brooks V. Satterlee — 49 Cal. 289 310 Brophy v. Harding— 137 111. 622; 27 N. E. 523; 34 N. E. 253 736 Brophy v. Laudman— 28 Ohio St. 542 494 Brown v. Central Bermudez Co.— 162 Ind. 452; 69 N. E. 150 404, 482, 502, 617, 705 Brown v. Chicago— 62 111. 106 322 Brown v. Chicago— 62 111. 289 689 Brown v. Chicago— 117 111. 21; 7 N. E. 108 795 Brown v. Denver— 3 Colo. 169 18& Brown v. Denver— 7 Colo. 305; 3 Pac. 455 29, 60, 96, 331 Brown v. Drain— 112 Fed. 582 755 Brown v. Fitchburg— 128 Mass. 282 501, 745 Brown v. Grand Rapids- 83 Mich. 101; 47 N. W. 117 438 Brown v. Jenks— 98 Cal. 10; 32 Pac. 701 414 Brown v. Joliet— 22 111. 123 553, 653 Brown v. Mayor— 63 N. Y. 239 42» Brown v. Palmer— 66 Neb. 287 ; 92 N. W. 315 598 Brown v. Saginaw — 107 Mich. 643; 65 N. W. 601 398, 602, 615, 619, 75ft Browning v. Chicago— 155 111. 314 ; 40 N. E. 565 546 Browne v. May— 120 N. Y. 357 ; 24 N. E. 947 765 Bruecher v. Port Chester— 101 N. Y. 240; 4 N. E. 272 765 Brumby v. Harris— 107 Ga. 257 ; 33 S. E. 49 691 Brunner v. Bay City— 46 Mich. 236; 9 N. W. 263 798 Brush V. Detroit— 32 Mich. 43 314, 514 Bryant v. Bobbins— 70 Wis. 258 ; 35 N. W. 545 32 Bryant v. Russell— 127 Mo. 422 ; 30 S. W. 107 688 Buchan v. Broadwell— 88 Mo. 31 119 Buckley v. Tacoma— 9 Wash. 253; 37 Pac. 441 136, 289, 391, 510 Buckley v. Tacoma— 9 Wash. 269; 37 Pac. 446 399, 815, 843 Buckman v. Cuneo— 103 Cal. 62; 36 Pac. 1025 512 Bucroft V. Council Bluffs— 63 la. 646; 19 N. W. 807 430, 567, 638, 656, 660 Buffalo City of. In re— 78 N. Y. 362 136, 391, 434 Buffalo City Cemetery v. Buffalo-^6 N. Y. 506, 509 11, 27, 259 Burgett V. Norris— 25 Ohio St. 308 271, 281, 794, 811 Burham v. Norwood Park— 138 111. 147; 27 N. E. 1088 307, 348 Burk V. Mayor, etc.— 77 Med. 469 ; 26 Atl. 868 342 Burke, In re-GZ N. Y. 224 316, 566, 796 Burke v. Kansas City— 118 Mo. 309; 24 S. W. 48 380 Burke v. Turney- 54 Cal. 486 676, 681 Burnham v. Chicago — ^24 111. 496 565, 566 Burnham v. Milwaukee — 69 Wis. 379; 34 N. W. 389 425 Burlington v. Quick — 47 Iowa 222 162, 346, 577, 655 Burlington & M. B. R. Co. v. Spearman^ — 12 Iowa 112 240, 398 Burlington Sav. Bk. v. Clinton— 106 Fed. 269 88 Burmeister, In re— 76 N. Y. 174 132, 211, 315, 327 Burnett v. Sacramento — 12 Cal. 76; 73 Am. Dec. 518 59, 158, 159, 186, 441 Burns v. Duluth (Minn.)— 104 N. W. 714 501 Bums V. Mayor — 48 Md. 198 155 Burnes v. Atchison — 2 Kan. 454 129 Burton v. Chicago— 53 111. 87 318 TABLE OF CASES. XXlll (The references are to sections.) Burton v. Chicago— 62 111. 179 492 Busbee v. Commissioners — 93 N. C. 143 76 Buser v. Cedar Rapids— 115 la. 685 ; 87 N. W. 404 634 Bush V. Dubuque— 69 la. 233; 28 N. W. 542 559 Bush V. Keesport— 166 Pa. St. 57 ; 30 Atl. 1023 634 Bush V. Peoria— 215 111. 515; 74 N. E. 797 573 Bushnell v. Leland— 164 U. S. 684; 41 L. ed. 598; 17 Sup. Ct. Rep. 209 97 Butler V. Chicago— 56 111. 341 390 Butler V. Keyport— 64 N. J. L. 181 ; 44 Atl. 849 805 Butler V. Robinson— 75 Mo. 192 554 Butler V. Toledo— 5 Ohio St. 225 821, 839 Butte V. School Dist. No. 1—29 Mont. 336-341 228 Byram v. Detroit— 50 Mich. 56; 12 N. W. 912; 14 N. W. 698. .. . 722, 787, 789, 820 Byrne v. Drain— 127 Cal. 663 ; 60 Pae. 433 543 Cabell V. Henderson (Ky.)— 88 S. W. 1095 547 Cain V. Commissioners— 86 N. C. 8 76, 231 Cain V. Omaha— 42 Neb. 120; 60 N. W. 368 195, 463, 526 Caldwell v. Carthage— 49 Ohio St. 334; 31 N. E. 602 115 Caldwell v. Rupert— 10 Bush 179 68, 133, 140, 253, 552, 662 Caldwell v. Texais— 137 U. S. 692; 34 L. ed. 816; 11 Sup. Ct. Rep. 224 93 California inip. Co. v. Moran— 128 Cal. 373; 60 Pac. 969 721 California Imp. Co. v. Reynolds— 123 Cal. 88 ; 55 Pac. 802 403 Callender v. Patterson— 66 Cal. 357; 5 Pac. 610 723 Callister v, Kochesperger— 168 111. 334; 48 N. E. 156. . .' 758 Callon V. Jacksonville— 147 111. 113; 35 N. E. 223 342, 588 Camden v. Mulford- 26 N. J. L. 49 309, 594 Cameron, In re — 46 N. Y. 502 541 Camp V. Simpson— 118 111. 224; 8 N. E. 308 793 Campau v. Detroit— 14 Mich. 276 326 Campbell v. Com'rs— 118 Ind. 119; 20 N. E. 772 747 Campbell v. Dist. of Col.— 117 U. S. 615; 29 L. ed. 1007; 6 Sup. Ct. Rep. 922 425 Campbell v. Park— 32 Ohio St. 544 277, 278 Campion v. Elizabeth— 41 N. J. L. 355 400, 771 Canal St., In re— 11 Wend 156 107, 197 Canfield v. Smith— 34 Wis. 381 283, 286, 721, 776 Canal Trustees v. Chicago— 12 111. 403, 406 49, 63, 187, 254, 501 Carlin v. Cavender— 56 Mo. 286 350 Carlinville v. McClure— 156 111. 492; 41 N. E. 169 342, 348 Carlyle v. Clinton Co.— 140 111. 512; 30 N. E. 782. . . .134, 139, 332, 369 Carpenter v. Lancaster— 212 Pa. St. 581 ; 61 Atl. 1113 639 Carpenter v. St. Paul — 23 Minn. 232 319, 396, 820 Carry v. Folz— 29 Ohio St. 320 471, 522 Carry v. Gaynor— 22 Ohio St. 584 722 Carson v. St. Francis Levee Dist. — 59 Ark. 513, 537; 27 S. W. 590 57, 96, 185, 459 Carson v. Sewer Com'rs— 182 U. S. 398; 45 L. ed. 1151; 21 Sup. Ct. Rep. 860 102,290 Carter v. Ctemansky— 126 Iowa 506; 102 N. W. 438. .469, 728, 729, 843 Case of Chester Mills— 10 Co. 499 223 Case V. Johnson — 9 Ind. 477 270 XXiy TABLE OP CASES. (The references are to sections.) Casey v. Burt Cto.— 59 Neb. 624; 81 N. W. 851 637, 731, 770 Casey v. Leavenworth — 17 Kan. 189 656, 658 Casey v. People— 165 111. 49; 46 N. E. 7 322, 614 Cason V. Lebanon— 153 Ind. 567; 55 N. E. 768 726 Cass V. People— 166 111. 126; 46 N. E. 729 367, 377, 388, 392 Cass Farm Co. v. Detroit— 124 Mch. 433 ; 83 N. W. 108 102, 168, 406, 422 Cass Farm Co. v. Detroit— 181 U. S. 395, 396; 45 L. ed. 914; 21 Sup. Ct. Rep. 644 88, 98, 102, 170 Cemansky v. Fitch— 121 la. 186; 96 N. W. 754 698, 702 Central etc. Co. v. Bayonne— 56 N. J. L. 297 ; 28 Atl. 713 169 Central Ir. Dist. v. De Lappe— 79 Cal. 351; 21 Pac. 823 226 Central Park, In re— 50 N. Y. 493 217 Central Park Comr's, In re— 63 Barb. 282 218 Central Savings Bank v. Mayor, etc.— 71 Md. 515; 18 Atl. 809; 20 Atl, 283 .... 319 Chadwick v. Kelley— 104 La. 719; 29 So. 295. ......... ..'. ! 482 Chadwick v. Kelley— 187 U. S. 540; 47 L. ed. 293, 295; 23 Sup. Ct. Eep. 175 88, 90, 117, 481, 482, 727 ChaflFee v. Granger — 6 Mich. 51 777 Chaliss v. Parker— 11 Kan. 384, 394 597, 598 Chamberlain v. Cleveland — 34 Ohio St. 551 154, 199, 295, 434, 448, 452, 783 Chamberlin v. Gleason— 163 N. Y. 214; 57 N. E. 487.... 568, 715, 777 Chambers v. Satterlee — 40 Cal. 497 9, 17, 59, 110, 167, 287, 386, 441, 748, 751 Chambliss v. Johnson— 77 Iowa 611 ; 42 N. W. 427 220 Chance v. Portland— 26 Oreg. 286; 38 Pac. 68 416 Chandler v. People— 161 111. 41 ; 43 N. E. 590 320 Chapman v. Ames — 135 Cal. 246; 67 Pac. 1125 59 Chapman v. Brooklyn — 40 N. Y. 372 533, 765 Chariton v. Holliday — 60 Iowa 391; 14 N. W. 775 314, 539, 595 Charles v. Marion— 98 Fed. 166 102, 108, 798 Charleston v. Johnston— 170 111. 336 ; 48 N. E. 985 144, 224 Charnock v. Fordoche etc. Co.— 38 La. An. 323 20, 41, 177, 458 Chase v. Evanston— 172 111. 403; 50 N. E. 241 486, 487 Chase v. Los Angeles — 122 Cal. 540; 55 Pac. 414 313, 403, 747, 776, 790 Chase v. Oshkosh— 81 Wis. 313; 15 L. R. A. 553; 29 Am. St. Eep. 898 ; 51 N. W. 560 647 Chase v. Scheerer— 136 Cal. 248 ; 68 Pac. 768 807 Chase v. Portland— 86 Me. 367 ; 29 Atl. 1104 644 Chase v. Sioux City— 86 la. 603 ; 53 N. W. 333 563 Chase v. Trout— 146 Cal. 350; 80 Pac. 81 98, 510, 512, 700 Claflin V. Chicago— 178 111. 549 ; 53 N. E. 339 354, 556 Clapp V. Hartford— 35 Conn. 66 165, 177, 749, 755 Clark V. Chicago— 152 111. 223; 57 N. E. 15 366, 614 Clark V. Chicago— 166 111. 84; 46 N. E. 730 754 Clark V. Chicago— 184 111. 354 500 Clark V. Chicago— 214 111. 318; 73 N. E. 358 504 Clark V. Ewing— 87 111. 344 546 Clark V. Janesville — 10 Wis. 136 142 Clark V. Kerns- 146 111. 348; 35 N. E. 60 688 Clark V. People— 146 111. 348; 35 N. E. 60 309, 613, 615, 617 Clark V. Porter— 53 Cal. 409 685 Clark V. Teller— 50 Mich. 618 ; 16 N. W. 167 775 Clay V. Grand Rapids— 60 Mich. 451; 27 N. W. 596 592, 802 TABLE OF CASES. XXV (The references are to sections.) Craft V. Koehesperger— 173 111. 617 ; 50 N. E. 1061 778, 780, 795, 808 Craig V. People— 193 111. 199; 61 N. E. 1072 376, 381 Craig V. Philadelphia— 89 Pa. St. 265 155, 682 Grain v. Chicago— 139 111. 265; 28 N. E. 758 519 Cram, In re— 69 N. Y. 452 523 Cram v. Chicago— 138 111. 506; 28 N. E. 757 550, 612 Cramer v. Charleston— 176 111. 507; 52 N. E. 73 353, 374 Cramer v. Stone— 38 Wis. 259 213, 610 Crane v. W. Chic. Park Comr's— 153 III. 348; 26 L. R. A. 311; 38 N. E. 943 155 Cratty v. Chicago— 217 111. 453; 75 N E. 343 812, 834 Craw V. Tolono— 96 III. 255; 36 Am. Eep. 143 13, 14, 64, 376, 597, 651 Crawford v. Burrell— 53 Pa. St. 219 253 Crawford v. People— 82 111. 557 484 Cheany v. Houser— 9 B. Monroe 341 822 Cheney v. Beverly— 188 Mass. 81; 74 N. E. 306.. 86, 121, 469, 507, 531 Cherington v. Columhus— 50 Ohio St. 475 ; 34 N. E. 680 169 Chester v. Black— 132 Pa. St. 568; 6 L. E. A. 802; 19 Atl. 276 78 170 821 827 Chester v. Bullock— 187 Pa. St. 544; 41 Atl. 452 ...'....'.....' 727 Chester v. Pennell— 169 Pa. St. 300; 32 Atl. 408 821, 823 Chew V. People— 202 111. 380; 66 N. E. 1069 618 Chicago V. Adams— 24 111. 492 733 Chicago V. Adcock— 168 111. 221 ; 48 N". E. 155 189, 582 Chicago V. Ayers— 212 111. 59; 72 N. E. 32 344 Chicago V. Baer^l 111. 306 63, 187, 246, 256, 264, 524 Chicago V. Baptist Theological Union— 115 111. 245; 2 N. E. 254 256, 511 Chicago V. Barbian— 80 111. 482 431 Chicago V. Blair— 149 111. 310; 24 L. R. A. 412; 36 N. E. 829 137 152 227 326 Chicago V. Brown— 205 111. 568; 69 N. E. 65 '. . . . .'.339' 341 Chicago V. Burtice— 24 III. 489 617, 692, 733 Chicago V. Colby— 20 111. 614 17 Chicago V. Corcoran— 196 111. 146; 63 N. E. 690 362 Chicago V. Cumimings— 144 111. 446; 33 N. E. 34 574 Chicago V. Habar— 62 111. 283 521, 689 Chicago V. Holden— 194 111. 213 ; 62 N. E. 550 375 Chicago V. Hulbert— 205 lU. 346; 68 N. E. 786 344, 348, 350, 383, 384, 412, 824 Chicago V. Lamed— 34 111. 203 35, 63, 64, 187, 481, 537, 538 Chicago V. Law— 144 111. 576; 33 N. E. 855.... 133, 134, 139, 153, 229 Chicago V. Nicholes— 192 111. 489 ; 61 N. E. 434 616 Chicago V. Nodeck— 202 111. 257; 67 N. E. 39.. 387, 506, 610, 621, 623 Chicago V. Noonan— 210 III. 18; 71 N. E. 32 820, 833, 836, 839 Chicago V. Palmer— 93 111. 125 647 Chicago V. People — 48 111. 416 668 Chicago V. People— 56 111. 322 660, 667, 668, 712 Chicago V. Richardson- 213 111. 96; 72 N. E. 791 841 Chicago V. Eock Island E. Co.— 20 111. 286 135 Chicago V. Eosenfeld— 24 111. 495 544 Chicago V. Sherman— 212 111. 498; 72 N. E. 396 345, 350, 360, 820, 824 Chicago V. Silverman— 156 111. 601; 41 N. E. 162 343 Chicago V. Singer— 116 111. App. 559 674, 764 XXVI TABLE OP CASES. • (The references are to sections.) Chicago V. Singer— 202 111. 75; 66 N. B. 874 340, 346, 372 Chicago V. Stuart— S3 111. 83 770 Chicago V. Taylor— 125 U. S. 161; 31 L. ed. 638; 8 Sup. Ct. Rep.. 820 623, 62Si Chicago V. Walker— 24 111. 493 553, 557 Chicago V. Walsh— 203 111. 318; 67 N. E. 774 365 Chicago V. Wheeler— 25 III. 478; 78 Am. Dec. 342 557, 718 Chicago V. Wilson— 195 111. 19; 57 L. R. A. 127; 62 N. E. 843. . . . 340 Chicago V. Wrighi>-32 HI. 192 388, 458, 748 Chicago V. Wright— 80 111. 579 134, 135, 368, 820 Chicago etc. v. Chicago— 207 111. 37; 69 N. E. 580 676, 691 C. & A. R. Co. V. JoUet— 153 111. 649; 39 N. E. 1077 40, 168, 189, 208, 241, 475 C. & A. R. Co.,v. Pontiae— 169 111. 155; 48 N. B. 485 637 C. B. & Q. R. R. Co. V. Chicago— 166 U. S. 226, 241 ; 41 L. ed. 979, 986; 17 Sup. Ct. Rep. 581 96 C. B. & Q. R. Co V. Frary— 22 111. 34 793 C. B. & Q. R. Co. V. Quincy— 136 lU. 563; 29 Am. St. Rep. 334; 27 N. E. 192 241, 251, 347 C. B. & Q. R. Co. V. Quincy— 139 111. 355; 28 N. E. 1069 347 C. & E. R. Co. V. Jacobs— 110 111. 414 639 C. M. & St. P. R. Co. V. Milwaukee— 89 Wis. 506; 28 L. R. A. 249; 62 N. W. 417 208, 240, 243, 266 C. M. & St. P. R. Co. V. Mitchell— 159 111. 406; 42 N. E. 973. .. . 645 C. M. & St. P. R. Co. V. Phillips— 111 Iowa 377; 82 N. W. 787.. 446, 591, 752, 797 C. & N. P. R. Co. V. Chicago— 172 III. 66; 49 N. E. 1006. .358, 360, 395 C. & N. P. R. Co. V. Chicago— 174 111. 439; 51 N. E. 596.331, 334, 372 C. & N. W. R. Co. V. Chicago— 148 111. 141; 35 N. E. 881.. 431, 516 C. & N. W. R. Co. V. Cicero— 154 111. 656; 39 N. E. 574 340 C. & N. W. R. Co. V. Elmhurst— 165 111. 148; 46 IST. E. 437 39, 162, 165, 189, 241, 339, 459, 690 C. & N. W. R. Co. V. People— 83 111. 467 615, 616 C. & N. W. R. Co. V. People— 120 111. 104; 11 N. E. 418. .240, 241, 264 C. P. & M. R. Co. V. Mitchell— 159 111. 406; 42 N. B. 973 643 C. R. I. & P. R. Co. V. Chicago— 27 N. E. 926 240 C. R. I. & P. R, Co. V. Chicago— 139 111. 573; 28 N. E. 1108.... 240, 264, 452, 491, 495, 544 C. R. I. & P. R. Co. V. Chicago— 143 111. 641; 32 N. E. 178. .432, 516 C. R. I. & P. R. Co. V. Moline— 158 111. 64; 41 N. E. 877. See note in 28 L. R. A. 249 208, 242, 498, 600, 671 C. R. I. & P. R. Co. V. Ottumwa— 112 Iowa 300; 51 L. R. A. 763; 83 N. W. 1074 ■ 242, 580, 656 Chicago City R. Co. v. Chicago— 90 111. 573; 32 Am. Rep. 54 236 Chicago Park Com'rs v. Barber- 171 111. 146; 49 N. E. 427 460, 820, 836, 839, 841 Chicago T. Tr. Co. v. Chicago— 178 111. 429; 53 N. E. 361 237 Chicago T. Tr. Co. v. Chicago— 184 111. 154; 56 N. B. 410 354 Chicago U. T. Co. v. Chicago— 202 111. 576 ; 67 N. B. 383 . . 190, 247, 333 Chicago U. T. Co. v. Chicago— 204 111. 363; 68 N. E. 579 449, 450, 464, 468 Chicago U. T. Co. v. Chicago— 207 111. 544; 69 N. B. 849. .345, 346, 355 Chicago U. T. Co. y. Chicago— 207 111. 607; 69 N. E. 803 547, 681 Chicago U. T. Co. v. Chicago— 215 111. 410; 74 N. B. 449.343, 503, 504 Chic. W. Div. R. Co. v. People— 154 111. 256; 40 N. B. 342 303 C. & O. R. Co. V. Mullins— 94 Ky. 355; 22 S. W. 558 304, 309 Chickering v. Faile— 38 111. 340 558 Chrisman v. Brookhaven — 70 Miss. 477; 12 So. 458 73 TABLE OP CASES. XXVll (The references are to sections.) Church V. McAtee — 8 Bush 508; 8 Am. Eep. 480 653 Church V. Milwaukee— 31 Wis. 512 497, 632, 633, 641, 757 Church V. Milwaukee— 34 Wis. 66 628, 641, 642 Church V. People— 174 111. 366; 51 N. E. 747 344, 591, 686 Church V. People— 179 111. 205; 53 N. E. 554 343, 363, 588 Churchill, In re— 82 N. Y. 28 524 Chytraus v. Chicago— 160 111. 18 ; 43 N. E. 335 346 Cicero v. Green— 211 111. 241; 71 N. E. 884 377, 502, 832, 837, 841 Cicero v. Skinner (111.)— 77 N. E. 137 834 Cicero & P.. St. R. Co. v. Chicago— 176 111. 501; 52 N. E. 866; 68 Notes Ochsenfeld Sept. 26, No 6 236 Cincinnati v. Anchor White Lead Co. — 44 Ohio St. 243; 7 N. E. 11. 604 Cincinnati v. Anderson— 52 Ohio St. 600 ; 43 N. E. 1040 288 Cincinnati v. Batsche— 52 Ohio St. 324; 27 L. R. A. 536 169, 249 Cincinnati v. Bickett— 26 Ohio St. 49 319, 686 Cincinnati v. Bryson — 15 Ohio 625 ; 45 Am. Dec. 593 134 Cincinnati v. C. & S. G. Ave. Co.— 26 Ohio St. 345 432 Cincinnati v. Connor — 55 Ohio St. 82; 44 N. E. 582 143 Cincinnati v. Davis— 58 Ohio St. 225; 50 N. B. 918 391 Cincinnati v. Emerson — 57 Ohio St. 132 ; 48 N. E. 667 754 Cincinnati v. James — 55 Ohio St. 180 ; 44 N. E. 925 805 Cincinnati v. Manso — 54 Ohio St. 257 ; 43 N. E. 687 284 Cincinnati v. Seasongood — 46 Ohio St. 296; 21 N. E. 630 819 Cincinnati v. Sherike— 47 Ohio St. 217; 25 N. E. 169 288 Cincinnati v. Taft— 63 Ohio St. 141 ; 58 N. E. 63 794 C. & E. R. Co. V. Keith— 67 Ohio St. 279 100 Citizens etc. Trust Co. v Chicago— 215 111. 174; 74 N. E. 115.... 94, 306, 485 City Bond Co. v. Bruner— 34 Ind. App. 659; 73 N. E. 711 705 City Bond Co. v. Wells— 34 Ind. App. 675; 73 N. W. 713 705 City Council v. Birdsong— 126 Ala. 632, 648, 650; 28 So. 522 167, 185, 679, 730 City Council v. Poster— 133 Ala. 587, 596, 597; 32 So. 610 144, 185, 481, 783 City Council v. Montgomery— 133 Ala. 587, 598; 32 So. 610 535 City Council v. Pinckney — 3 Brev. 217 79 City Improvement Co, v. Babcock— 123 Cal. 205; 55 Pac. 762 287 City Street Imp. Co. v. Taylor— 138 Cal. 364; 71 Pac. 446 568 aementi v. Jackson— 92 N. Y. 591 811, 814 Clemes v. Mayor &c.— 16 Md. 208 656, 725 Cleneay v. Norwood— 137 Fed. 962 450 aeveland v. Clements etc. Co.— 67 Ohio St. 197; 59 L. R. A. 775; 93 Am. St. Rep. 670; 65 N. E. 885 410 Cleveland v. Tripp— 13 R. I. 50 ...79, 104, 170, 177, 503, 504 Cleveland v. Wick— 18 Ohio St. 303 112, 211, 635 C. L. & N. R. Co. V. Cincinnati— 62 Ohio St. 465 ; 49 L. R. A. 566 ; 57 N. E. 229 635 Cline V. Seattle— 13 Wash. 444 ; 43 Pac. 367 821, 840 Clingman v. People— 183 111. 339; 55 N. E. 727 623 Clinton v. Henry Co.— 115 Mo. 557; 37 Am. St. Eep. 415; 22 S. W. 494 652, 669, 670, 687 Clinton v. Portland— 26 Oreg. 410; 38 Pac. 407 304, 315, 332, 390, 431, 618, 619, 717, 722 Clinton v. Walliker- 98 la. 655 ; 68 N. W. 431 811 Cluggish V. Koons— 15 Ind. App. 599 ; 43 N. B. 158 723 Critchfield v. Bermudez A. Pav. Co.— 174 111. 466; 42 L. R. A. 347; 51 N. E. 552 2g XXVIU TABLE OF CASES. (The references are to sections.) Ckjates V. Dubuque— 68 Iowa 550; 27 N. W. 750 131, 564, 573 Cochran v. Collins— 29 Cal. 129 652, 726 Cochran v. Park Ridge— 138 111. 295 ; 27 N. E. 939 364 Oodman v. Johnson — 104 Mass. 491 713 Cody V. Cicero— 203 111. 322; 67 N. E. 859 828 Coggeshall v. City of Des Moines— 78 la. 235; 41 N. W. 617; 42 N. W. 650 135, 331 Cohen v. Virginia- 6 Wheat 264, 404; 5 L. ed. 257, 291 117 Cohn V. Parcels— 72 Cal. 367; 14 Pac. 26 808 Cohn V. Wausau Boom Co.— 47 Wis. 314; 2 N. W. 546 647 Coit V. Grand Rapids- 115 Mich. 493; 73 N. W. 811 262 Oolclough V. Milwaukee— 92 Wis. 185; 65 N. W. 1039.. 114, 647, 794 Cole V. Skrainka- 105 Mo. 303 ; 16 S. W. 491 345, 671 Cole V. People— 161 111. 16; 43 N. E. 607 351, 355, 576 Cole V. Peoria— 18 111. 301 495 Cole v. St. Louis— 132 Mo. 633; 34 S. W. 469 630, 644 Coleman v. Rathbun (Wash.)— 82 Pac. 540 775 College St., In re— 8 R. I. 474 263 Collins V. Holyoke— 146 Mass. 298; 15 N. E. 908.. 580, 589, 590, 743 Columbus V. Agler— 44 Ohio St. 485 ; 8 N. E. 302 802 Columbus V. Hmi1^5 Rich L. 550 134 Columbus V. Sohl^4 Ohio St. 479; 18 N. E. 299 275 Columbus V. Slyh-^4 Ohio St. 484; 8 N. E. 302 724 Com. Ins. Co. v. People— 172 111. 31 ; 49 N. E. 989 554 Com. Natl. Bank v. Portland— 24 Oreg. 188; 41 Am. St. Rep. 854; 33 Pac. 532 660, 661, 664 Commissioners etc. v. Abbott — 52 Kan. 148; 34 Pac. 416 245 Commissioners v. Armstrong— 45 N. Y. 234; 6 Am. Rep. 70.... 218 Commissioners etc v. Com'rs— 127 111. 581; 21 N. E. 206 242 Commissioners v. Commissioners — 92 N. C. 180 76, 161 Com'rs V. County of Hudson — 44 N. J. L. 570 712 Commissioners v. Fallen— 111 Ind. 410; 12 N. E. 298 145, 296, 491, 825 Commissioners v. Fallen— 118 Ind. 158; 20 N. E. 771 215, 747 Commissioners v. Gurver — 115 Ind. 224; 17 N. E. 290 842 Commissioners v. Harper — 38 111. 103 ; and see Chi. ii, under notice. 293 Commissioners etc. v. Harrell — 147 Ind. 500 ; 46 N. E. 124 49, 162, 168, 172, 190, 435 Commissioners v. Jamison — 115 Ind. 597; 17 N. E. 294 842 Commissioners v. Kelsey— 120 111. 482; 11 N. E. 256 187 Commissioners v. Mialegvich — 52 La. Ann. 1292; 27 So. 790 229 Commissioners v. Ottawa — 49 Kan. 747; 33 Am. St. Rep. 396; 31 Pac. 788 234 Commissioners v. Taylor— 99 N. C. 210; 6 S. E. 114 134 Commissioners v. Young — 36 Ohio St. 288 277 Commissioners of Elizabeth— 49 N. J. L. 488; 10 Atl. 363 441, 534, 821, 826, 828 Commonwealth v. Abbott — 160 Mass. 282; 35 N. E. 782 287 Commonwealth v. George — 148 Pa. St. 463; 24 Atl. 59, 61 144, 683 Cojnmonwealth v. Woods — 44 Pa. St. 113 : 201 Concordia Cemetery Asso. v. M. & N. W. R. Co. — 121 111. 199- 12 N. E. 536 458 Conde v. Schenectady— 164 N. Y. 258; 58 N. E. 130 169, 277, 284, 603, 779, 781 Cone V. Hartford— 28 Conn. 363, 364 186, 225, 769 Conger v. Bergman— 10 Ky. L. Rep. 899; 11 S. W. 84 215 Conklin v. Keokuk— 73 la. 343; 35 N. W. 444 629, 634 TABLE OP CASES. XXIX (The references are to sections.) Conkling v. Springfield— 132 111. 420; 24 N. E. 67 770 Conn. Mut. Life Ins. Cc. v. Chicago— 185 111. 148; 56 N. E. 1071. . 366 Connor v. Paris— 87 Tex. 32; 27 S. W. 88 134, 136, 139, 287 Conway v. Cable— 37 111. 82; 87 Am. Dec. 240 790, 814 Conway v. Chicago— 219 111. 295 ; 76 N. E. 384 834 Cook V. Gage Co.— 65 Neb. 611; 91 N. W. 559 293 Cook V. Port of Portland— 20 Oreg. 580; 13 L. R. A. 533; 27 Pac. 263 _ _ 77 \Q2 229 Cook V. Racine^g Wis. 243; 5 N. W. 352 788, 789' 807 Cook V. Slocum— 27 Minn. 509; 8 N. W. 755 208, 451, 491 Cook V. So. Park Com'rs— 61 111. 115 218 Cook V. State— 101 Ind. 446 700 Cook County v. Chicago- 103 111. 646 234 Cook Co. V. C. B. & Q. R. Co.— 35 111. 460 775 Cook Farm Co. v. Detroit— 124 Mich. 426; 83 N. W. 130 120 Cooper V. Nevin— 90 Ky. 85; 13 S. W. 841 435, 731, 820 Copeland v. Packard — 16 Pick. 219 601 Cornell v. People— 107 111. 372 64, 146 Corliss V. Highland Park (Mich.)- 132 Mich. 152; 93 N. W. 254, 610; 95 N. W. 416 487, 544, 592, 820, 838, 839 Oorsieana v. Kerr— 89 Tex. 461 ; 35 S. W. 794 291 Corry v. Campbell— 25 Ohio St. 134 417 Cossitt Land Co. v. Neuscheler (N. J.)— 60 Atl. 1128 529, 552 Cothren v. Lean — 9 Wis. 279 425 County Court v. Griswold— 58 Mo. 175 126, 218 Covington v. Boyle— 6 Bush 204 68, 168, 175, 213 Covington v. Casey — 3 Bush 698 308 Covington v. Nadand— 103 Ky. 455; 45 S. W. 498 725 Covington v. Nelson- 35 Ind. 532 270 Covington v. Noland (Ky.)— 89 S. W. 216 753 Covington v. Worthington— 88 Ky. 206; 10 S. W. 790; 11 S. W. 1038 168, 575 Cowley V. Spokane — 99 Fed. 840 730 Creed v. McCombs— 146 Cal. 449; 80 Pac. 679 755, 790 Creighton v. Manson— 27 Cal. 613 59, 287 Creighton v. Pragg — 21 Cal. 115 ■. . . . 540 Creighton v. Scott— 14 Ohio St. 438 77, 179, 518, 538 Creighton v. Toledo— 18 Ohio St. 447 658, 665 Creote v. Chicago— 56 III. 422 549 Crockett v. Boston — 5 Cush. 182 601 Cronan v. Municipality No. 1 — 5 La. Ann. 537 661 Cronin v. Jersey City— 38 N. J. L. 410 171 Crosby v. Lyon — 37 Cal. 242 50 Crossett v. Janesville— 28 Wis. 420, 421 565,632,762 Crowley v. Copley— 9 La. Ann. 329 42, 176 Cruger, In re— Si N. Y. 619 437, 439 Cruikshanks v. City Council— 1 McCord L. 360 79 Culver V. People— 161 111. 89; 43 N. E. 812 144 Culver V. Chicago— 171 111. 399; 49 N. E. 573 335, 336, 348 Culver V. Jersey City— 45 N. J. L. 256 731 Cuming v. Grand Rapids— 46 Mich. 150; 9 N. W. 141 289, 292, 494, 501, 502, 512, 527, 602, 776 Gumming v. Police Jury — 9 La. Ann. 503 69 Cummings v. Kearney— 141 Cal. 156 ; 74 Pac. 759 722, 723 Cummings v. W. Chic. Park Comr's— 18 111. 136 ; 54 N. E. 941 . . 820 Cunningham v. Peoria— 157 111. 499; 41 N. E. 1014 342, 373, 460 Curnen v. Mayor etc.— 79 N. Y. 511 701 Curry v. McSterling— 15 111. 320 , 305, 395 TABLE OF CASES. . (The references are to sections.) ■' D. l>aily V. Swope— 47 Miss. 367 73, 139, 176, 194, 219, 253 Dakota L. & T. Co. v. Codington Co.— 9. S. Dak. 159, 68 N. W. 314 774 Dallas V. Emerson— (Tex. Civ. App.), 36 S. W. 304 175 Dalrymple v. Milwaukee— 53 Wis. 178; 10 N. W. 141 12, 16, 84 Dalton V. Poplar Bluffs— 173 Mo. 39 ; 72 S. W. 1068 658 Daly V. Gubbins— (Ind. ) , 73 N. E. 833 308, 697 Daly V. Morgan— 69 Md. 460; 1 L. R. A. 757; 16 Atl. 300 24, 70 Daly V. San Francisco— 72 Cal. 154; 13 Pae. 321 418, 430 toamkoehler v. Milwaukee — 124 Wis. 144 ; 101 N. W. 706 110, 113, 114, 267, 544, 626, 647, 761, 777 Dancer v. Mannington— 50 W. Va. 322 ; 40 S. E. 475 401 Danforth v. Livingston — 23 Mont. 558; 59 Pae. 916 396 Danforth v. Hinsdale— 177 111. 579; 52 N. B. 372 611 Daniels v. Watertown— 61 Mich. 514; 28 N. W. 673 811, 815 Dann v. Woodruff— 51 Conn. 203 135, 246 Dajiville v. MoAdams— 153 111. 216 ; 38 N. E. 632 346 Darnell v. Keller— 18 Ind. App. 103 ; 45 N. E. 676 726 Dartmouth College v. Woodward — 4 Wheat. 518; 4 L. ed. 629 92 Dashiell v. Mayor, etc.— 45 Md. 615 285, 349, 501, 502, 672 Dayton v. Bauman — 66 Ohio St. 379 ; 64 N. E. 433 199, 635 Davenport v. Iowa— 120 Fed. 172 807 Davidson v. Chicago— 178 111. 582; 53 N. E. 367 375 Davidson v. "New Orleans— 96 U. S. 97; 24 L. ed. 616 89, 93, 101 Davies v. Los Angeles — 86 Cal. 37; 24 Pae. 771 103, 301, 524 Davies' Executors v. Galveston — 16 Tex. Civ. App. 13 291 Davis V. Gaines-— 18 Ark. 370; 3 S. W. 184 185, 219, 257, 524 Davis V. L. S. & M. S. R. Co.— 114 Ind. 364; 16 N. E. 369 293, 618 Davis V. Litchfield— 145 111. 313; 21 L. R. A. 563; 33 N. E. 888.. 136, 150, 168, 175, 181, 188, 460, 475, 595 Davis V. Litchfield— 155 111. 384; 40 N. E. 354 9, 40, 64, 205, 332, 349, 370, 373, 435, 544 Davis V. Lynchburg— 84 Va. 861 ; 6 S. E. 230 82, 106, 170, 172 Davis V. Mo. Pae. R. Co.— 119 Mo. 180; 41 Am. St. Rep. 648; 24 S. W. 777 116 Davis V. Newark— 54 N. J. L. 144; 23 Atl. 276 236, 447, 712 Davis V. Newark— 54 N. J. L. 595 ; 25 Atl. 336 630 Davis V. Saginaw— 87 Mich. 439 ; 49 N. W. 667 158, 394, 399, 438, 497, 575 Deady v. Townsend— 57 Cal. 298 290 Dean v. Borschenius — 30 Wis. 236 118, 211, 407, 713, 790, 799, 809, 821, 823, 825, 828 Dean v. Charlton— 29 Wis. 400; 9 Am. Rep. 578 411 Dean v. Charlton— 23 Wis. 590; 99 Am. Dee. 205 408, 791, 792, 821, 843 Dean v. Davis— 51 Cal. 407 778, 794 Dean v. Patterson— 68 N. J. L. 664; 54 Atl. 836 756 Deane v. Indiana, etc., Co.— 161 Ind. 371; 68 N. E. 686.. 119, 482, 679 De Baker v. Carrillo— 52 Cal. 473 768 Dederer v. Voorhies— 81 N. Y. 153 735, 779, 781, 808, 811, 815 Dehail v. Morford— 95 Cal. 457; 30 Pae. 593 801 De Haven v. Berendes — 135 Cal. 178; 67 Pae. 786 810, 814 DeClerg v. Barber A. Pav. Co.— 167 111. 215; 47 N. E. 367 15, 16 Deering, In re— 93 N. Y. 361 397 Defenbaugh v. Foster— 40 Ind. 382 425 TABLE OF OASES. XXXI (The references are to sections.) De Gravelle v. Drainage Dist.— 104 La. 703; 29 So. 302 224 De Graw St., In re— IS Wend. 568 207 DeKoven v. Lake View — 129 III. 399; 21 N. E. 813 177, 523 BeKoven v. Lake View— 131 lU. 541; 23 N. E. 240 612 Delamater v. Chicago— 158 111. 575; 42 N. E. 444 292, 352, 710 Delancey, In re — 52 N. Y. 80 432 Delphi V. Evans — 36 Ind. 90; 10 Am. Eep. 12 131 Del. & H. Canal Co., In re— 129 N. Y. 105; 29 N. E. 237 554 Dempster v. Chicago— 175 111. 278; 51 N. E. 710 224, 591, 785 Dempster v. People— 158 111. 36; 41 N. E. 1022 686 Denise v. Fairport— 32 N. Y. Supp. 97; 11 Misc. 199 169 Dennison v. New York— 182 N. Y. 24; 74 N. E. 486 770 Dennison v. Kansas City — 95 Mo. 416; 8 S. W. 429 271, 803 Denton v. Atchison- 34 Kan. 438; 8 Pae. 750 417, 420 Denver v. Campbell— 33 Colo. 162; 80 Pac. 142 167, 394, 475, 717 Denver v. Colorado — 33 Colo. 104; 80 >Pac. 117; see Same v. Lon- doner. Denver v. Dumars — 33 Colo. 94; 80 Pac. 114 383, 441, 522, 583, 725, 787 Denver v. Dunning— 33 Colo. 487 ; 81 Pac. 259 724 Denver v. Hallett — 33 Colo. 94; 80 Pac. 114 383, 583, 725 Denver v. Kennedy — 33 Colo. 80; 80 Pac. 122, 467 98, 216, 438, 442, 507, 791, 792, 809 Denver v. Knowles- 17 Colo. 204; 17 L. E. A. 135; 30 Pac. 1041.. 18, 60, 167, 171, 213 Denver v. Londoner— 33 Colo. 104; 80 Pac. 117 : 267, 271, 283, 320, 383, 441, 698, 791, 792 Denver v. Nat'l Exeh. Bank (Colo.)— 82 Pae. 448 790 De Peyster, In re — 80 N. Y." 563 309 De Peyster v. Murphy— 66 N. Y. 622 703 De Pierris, In re — 82 JST. Y. 243 319 De Puy V. Wabash— 133 Ind. 336; 32 N. E. 1016 618, 722, 726 Derby v. W. Chic. Park Comr's— 154 111. 213; 40 N. E. 438 301, 535 Des Moines, etc., Co. v. Smith— 108 la. 307; 79 N. W. 77 701 Des Moines v. Dorr- 31 la. 89 714 Detroit v. Parker— 181 U. S. 399; 45 L. ed. 917; 21 Sup. Ct. Rep. 624 88, 98, 170 Detroit v. Judge, etc.— 112 Mich. 588; 42 L. E. A. 638; 71 N. W. 149 193 Detroit v. Daly— 68 Mich. 503 ; 37 N. W. 11 207 Detroit v. Michigan Pav. Co.— 36 Mich. 335 656, 658 Detroit, G. H. & M. R. Co. v. Grand Eapids— 106 Mich. 13; 28 L. E. A. 793; 58 Am. St. Eep. 466; 63 N. W. 1007 690 Dever v. Junction City — 45 Kan. 417; 25 Pac. 861 801, 804 Dever v. Keokuk, etc., Bank— 126 la. 691; 102 N. W. 542 147, 412 Devlin v. Mayor— 63 N. Y. 8 425 Dewey v. Des Moines— 173 U. S. 193; 43 L. ed. 665; 19 Sup. Ct. Rep. 379 446, 655 Dewey v. Des Moines — 101 Iowa 416; 70 N. W. 605 204, 394, 397, 398, 655 Dewhurst v. Allegheny— 95 Pa. St. 437 720 De Witt Co. V. Clinton— 194 III. 521; 62 N. E. 780 366, 375, 403 Dexter v. Boston— 176 Mass. 247; 79 Am. St. Eep. 306; 57 N. E. 379 117, 192, 587, 764 Dick V. Philadelphia— 197 Pa. St. 467; 47 Atl. 750 566, 569 Dickinson v. Detroit— 11 Mich. 480; 69 N. W. 728 132, 212 Diekerman v. Duluth, Minn.— 88 Minn. 288; 92 N. W. 1119 117, 646 XXXIl TABLE OF CASES. (The references are to sections.) Dickennan v. N. Y., N. H. & H. R. Co.— 72 Conn. 271 ; 44 Atl. 228 . 634 Diekey v.' Chicago— 152 111. 468; 38 N. E. 932 313 Dickey v. Chicago— 164 111. 37; 45 N. E. 537; 38 S. W. 857 357 Dickey v. Kochersperger— 160 111. 633 ; 43 N. E. 606 312 Dickey v. People— 160 111. 633 ; 43 N. E. 606 614 Diekey v. People— 213 111. 51 ; 72 N. E. 791 732 Dickson v. Racine— 65 Wis. 306; 27 N. W. 58 457, 755 Dickson v. Racine— 61 Wis. 545, 546; 21 N. W. 620 545, 675, 755 Dieekmann v. Sheboygan Co.— 89 Wis. 571 ; 62 N". W. 410 271 Diefenthaler v. Mayor- 111 N. Y. 331; 19 N. E. 48 765^ Dietz V. Neenah— 91 Wis. 422 ; 64 N. W. 299 105, 134, 779, 780, 789, 823 Digging v. Brown— 76 Cal. 318; 18 Pac. 373 524 Diggins V. Hartshorne— 108 Cal. 154; 41 Pac. 283.. 167, 470, 753, 755 Dill V. Roberts— 30 Wis. 178 822 Dittoe V. Davenport— 74 Iowa 66; 36 N. E. 895 298, 577, 773 Dixon V. Detroit— 86 Mich. 516; 49 N. W. 628 692, 775, 786 Doan V. Omaha— 58 Neb. 815 ; 80 N. W. 54 382 Dobler v. Warren— 174 111. 92; 50 N. E. 1048 652 Doherty v. Enterprise M. Co.— 50 Cal. 187 599 Dolan V. Mayor— 62 N. Y. 472 615 Donnelly v. Decker — 58 Wis. 461, 465, Op. ; 46 Am. Rep. 637 ; 17 N. W. 389 32, 43, 202, 445 Donnelly v. Howard— 50 Cal. 291 507 Dooling V. Ocean City— 67 N. J. L. 215; 50 Atl. 621 169, 476 Doran v. Barnes— 54 Kan. 238; 38 Pac. 300 509 Dorathy v. Chicago — 53 111. 79 531 Dore V. Milwaukee— 42 Wis. 108 116, 631, 642, 75& Doremus v. People— 161 111. 26; 43 N. E. 701 279, 618 Doremus v. People— 173 111. 63; 50 N. E. 686 533 Doremus v. Chicago— 212 111. 513; 72 N. E. 403 832 Dorgan v. Boston— 12 Allen 223 71, 130, 151, 192, 640 Dorman v. State— 34 Ala. 216 56 Douglas, In re— 46 N. Y. 42 382 Douglass V. Harrisville — 9 W. Va. 162; 27 Am. Rep. 548 83, 774 Dougherty v. Coffin— 69 Cal. 454; 10 Pac. 672 730 Dougherty v. Miller— 36 Cal. 83 386, 676 Dougherty v. Porter— 18 Kan. 206 291, 325 Dowell V. Portland— 13 Oreg. 248; 10 Pac. 308 136, 533, 618, 691, 821, 823, 842 Dowlan v. Sibley Co.— 36 Minn. 430; 31 N. W. 517 32, 73, 234, 756 Dowling V. Hibernia S. & L. Soc— 143 Cal. 425; 77 Pac. 141 289, 291, 313, 704 Downer v. Boston — 7 Cush. 277 179 Downey v. People— 205 111. 230; 68 N. E. 807 612, 732 Doyle V. Austin — 47 Cal. 353 18, 261 Doyle V. Leas— 5 111. 202 549 Doyle V. People— 207 111. 75 ; 69 N. E. 639 416 Drainage Comr's v. 111. Cent. R. Co.— 158 111. 353; 41 N. E. 1073. . 241, 242 Drake v. Grout— 21 Ind. App. 534; 52 N. E. 775 441 Drake v. Phillips— 40 111. 388 133, 144 Dressmau v. Nat'l Bank— 100 Ky. 571; 36 L. R. A. 121; 38 S. W. 1052 699, 700 Dressman v. Simowin— 104 Ky. 693 ; 47 S. W. 767 700 Drexel v. Lake— 127 111. 54; 20 N. E. 38 225, 363 Drummond v. Eau Claire— 79 Wis. 97; 48 N. W. 244 355, 372, 563 TABLE OF CASES. XXXlll (The references are to sections.) Drummond v. Eau Claire— 85 Wis. 556; 55 N. W. 1028.. 625, 630, 762 Duane v. Chicago— 198 111. 471; 64 N. E. 1033 340, 364 Dudley v. Cilley— 5 N. H. 558 601 Bugger V. Hicks— 11 Ind. App. 374; 36 N. E. 1085; 37 N. E. 284. . 680 Dugro, In re— 50 N. Y. 513 210, 396, 424 Dukes V. Rowley— 24 111. 222 687 Duluth V. Dibblee— 62 Minn. 18; 63 N. W. 1117 94, 386, 618 Dumesnil v. Shanks— 97 Ky. 354; 30 S. W. 654; 31 S. W. 864. .. . 247 Duncan v. Eamish — 142 Cal. 686; 76 Pac. 661 426, 636, 722, 733 Dunham v. Hyde Park— 75 111. 371 395 Dunham v. People— 96 111. 331 64,154,219 Duniway v. Portland (Oreg.)— 81 Pac. 945 821, 829, 840 Dunkle v. Herron— 115 Ind. 470; 18 N. E. 12 118 Dunlap V. Gallatin Co.— 15 111. 7 670 Dunlap V. Mount Sterling— 14 111. 251 , . . 395 Dunne v. Altsehul— 57 Cal. 472 425, 434 Dupuis V. C. & N. W. R. Co.— 115 111. 97; 3 N. E. 720 640 Durant v. Kaufman — 34 Iowa 194 186 Durkee v. Kenosha— 59 Wis. 123; 48 Am. Rep. 480; 17 N. W. 677. 660 Durrell v. Dorner— 119 Cal. 411 ; 51 Pac. 628 133 Button V. Hanover — 42 Ohio St. 215 284 Dyer v. Barstow— 50 Cal. 652 680, 692 I^er V. Brogan — 70 Cal. 136 ; 11 Pac. 589 149 Dyer v. Chase— 52 Cal. 440 133 Dyer v. Miller— 58 Cal. 585 135 Dyer v. Parrott— 60 Cal. 551 707 Dyer v. St. Paul — 27 Mlinn. 457 626 Dyer v. Sealmanini— 69 Cal. 637; 11 Pac. 327 752, 819, 844 Dyker, etc., Co. v. Cook— 159 N. Y. 6; 53 N. E. 690 608 E. Eachus V. Los Angeles, etc., R. Co.— 103 Cal. 614; 42 Am. St. Rep. 149 ; 37 Pac. 750 108, 564, 630, 631, 634, 636 Eagle Manfg. Co. v. Davenport— 101 la. 493; 38 L. R. A. 480; 70 N. W. 707 698 E. St. Louis V. Albrecht— 150 111. 506; 37 N. E. 934.... 332, 600, 885 Eckert v. Walnut— 117 Iowa 629; 91 N. W. 929 331, 629 Ede V. Cuneo— 126 Cal. 167 ; 58 Pac. 538 540, 820 Eddy V. Omaha (Neb.)— 103 N. W. 692; 101 N. W. 25 274, 324, 383, 806 Edgerton v. Mayor, etc.— 19 Fla. 140 62 Edwards v. Berlin— 123 Cal. 544; 56 Pac. 432 289, 421 Edwards v. Chicago— 140 111. 440; 30 N. E. 350 451, 452, 456, 457, 467 Egyptian Levee Co. v. Hardin— 72 Am. Rep. 276 ; 27 Mo. 495 74, 176, 219 Eilert v. Oshkosh- 14 Wis. 587 660 Elgin V. Kimball— 90 111. 356 631 Elizabeth v. State— 45 N. J. L. 157 821, 839 Elkhart v. Wickwire— 121 Ind. 331; 22 N. E. 342 314, 504, 711 Elliott V. Berry— 41 Ohio St. 110 133 Elliott V. Chicago— 48 111. 293 489 Ellis V. Iowa City— 29 la. 229 625 Ellis V. Pontchartrain, etc., Dist.— 43 La. Ann. 33; 8 So. 914 176 Ellis V. Witmer— 134 Cal. 249 ; 66 Pac. 301 313 Ellston V. Chicago— 40 111. 514; 89 Am. Dec. 361 770 XXXIV TABLE OP CASES. (The references are to sections.) Elston V. Kennicott— 46 111. 187 558 Ellwood V. Rochester— 122 N. Y. 229 ; 25 N. E. 238 438 Elyton Land Co. v. Mayor— 89 Ala. 477; 7 So. 901 56 Elma V. Carney— 9 Wash. 466; 37 Pac. 707 167, 171, 416, 481 Elma V. Wood— 9 Wash. 466; 37 Pac. 707 171 Ely V. Grand Rapids— 84 Mich. 336; 47 N. W. 447 416 Elmore v. Drainage Comr's- 135 111. 269; 25 Am. St. Rep. 363; 25 N. E. 1010 29 Emerson v. Saltmarshe— 7 Ad. & El. 156 223 Emery v. Bradford— 29 Cal. 75 59, 392, 654, 726, 747, 753 Emery v. San Francisco Gas Co. — 28 Cal. 345 18, 40, 59, 167, 171, 186, 288, 420, 654, 692 Emery v. Sullivan— 125 Ind. 407; 25 N. E. 540 280 Emigrant Ind. Sav. Bk., In re— 75 N. Y. 388 423, 425, 624 Emporia v. Bates— 16 Kan. 495 820, 837 Emporia v. Morton— 13 Kan. 569 811, 820, 837 English V. Danville— 150 111. 92; 30 N. E. 994 395 English V. Wilmington— 37 Atl. 158; 2 Marv. (Del.) 63.. 104, 123, 167 Eno V. Mayor— 68 N. Y. 214 319, 736, 813 Enoa V. Springfield— 113 111. 65 13, 205, 356 Eppinger v. Kirby— 23 111. 521 ; 76 Am. Dec. 709 687 Equitable Trust Co. v. O'Brien— 55 Neb. 735; 76 N. W. 417 300 Erie v. Church— 105 Pa. 278 11, 15, 263 Erie v. Griswold— 184 Pa. St. 435; 39 Atl. 231 255 Erie v. Piece of Land— 171 Pa. St. 610; 33 Atl. 378 694 Erie v. Reed— 113 Pa. St. 468; 6 Atl. 679 821, 827 Erie v. Russell— 148 Pa. St. 384; 23 Atl. 1102 199, 577 Ernst V. Kunkle— 5 Ohio St. 520 77, 169, 425 Eschbaeh v. Pitts— 6 Md. 71 656 Espy Estate Co. v. Pacific Co. Comr's Wash.— 82 Pac. 129 758 Essroger v. Chicago— 185 111. 420 ; 56 N. E. 1086 374 Eates V. Owen- 90 Mo. 113; 2 S. W. 133 131, 213 Eustace v. People— 213 111. 424; 72 N. E. 1089 344, 693 Evans v. Lewis— 121 111. 478 ; 13 N. E. 246 759 Evans v. People— 139 111. 552; 28 N. E. 1111 321 Evans v. Sharp — 29 Wis. 564 830 Excelsior, etc., Co. v. Green — 39 La. Ann. 455; 1 So. 873 245, 536 Exposition Park v. Kansas City— 174 Mo. 425 ; 74 S. W. 979 254 Extension of Hancock St. — 18 Pa. St. 26 201, 252, 465 Ewart V. Western Springs— 180 111. 318; 54 N. E. 478 228, 246, 326, 347 F. Eadjer v. Aitkin — 87 Minn. 445; 92 N. W. 332, 934 787 Eagau V. Chicago— 84 111. 227 187, 233, 255, 295, 628, 637 Fahnestock v. Peoria — 171 111. 454; 49 N. E. 496 327 Fairbanks v. Fitchburg — 132 Mass. 42 168, 743, 744, 745, 746 Fairchild v. St. Paul — 46 Minn. 540; 49 N. W. 325 36, 299, 513 Fair Haven & W. R. Co. v. New Haven — 77 Conn. 667; 60 Atl. 667; 60 Atl. 651 722 Fairfield v. Ratcliflf— 20 la. 396 133, 134, 139 Fallbrook Ir. Dist. v. Bradley— 164 U. S. 112; 41 L. ed. 369; 17 Sup. a. Rep. 56 96, 102, 103, 202,' 226 Falls V. Cairo— 58 111. 403 768, 770, 772 Farber v. W. Chic. Park Comr's— 182 111. 250 ; 55 N. E. 325 820 Farmers' L. & T. Co. v. Ansonia — 61 Conn. 76; 23 Atl. 705 236 TABLE OF CASES. XKXT (The references are to sections.) Farmers' L. & T. Co. v. Hastings— 2 Neb. (Unof.) 337; 96 N. W. 104 13& Farr v. Detroit— 136 Mich. 200; 99 N. W. 19 723 Farr v. W. Chie. Park Comr's— 167 111. 355; 46 N. E. 893 251, 326, 501, 824, 826 Farrar v. St. Louis— 80 Mo. 379 127, 131, 168, 169 Farrell v. Chicago— 162 111. 280; 44 N. E. 527 144 Farrell v. Chicago— 198 111. 558; 65 N. E. 103 683 Farrell v. W. Chic. Park Comr's— 182 111. 250; 55 N. E. 325 546 Farrell v. W. Chic. Park Comr's— 181 U. S. 404; 45 L. ed. 924; 21 Sup. Ct. Rep. 609 819' Farwell v. Des Moines, etc., Co.— 97 Iowa 302; 35 L. R. A. 63; 66 N. W. 176 204, 254, 258, 655, 722 Farwell v. Park Comr's— 181 U. S. 404; 45 L. ed. 924; 21 Sup. Ct. Rep. 609 98. Pass V. Seehawer- 60 Wis. 525 ; 19 N. W. 533 249, 267, 281, 304, 315, 666 Fay V. Chicago— 194 111. 136; 62 N. E. 530 360 Fay V. Reed— 128 Cal. 357; 60 Pac. 927 290, 511 Fay V. Springfield— 94 Fed. 409 202 Fehler v. Gfosnell— 99 Ky. 380; 35 S. W. 1125 383, 414, 415, 731 Fehringer v. Chicago— 187 111. 416; 58 N. E. 303 374 Felch V. People— 99 111. 137 63 Felker v. New Whatcom- 16 Wash. 178; 47 Pac. 505 303, 391, 534, 670 Felsenthal v. Johnson — 104 111. 21 793 Felt V. Ballard— 38 Wash. 300; 80 Pac. 532 384 Fenelon's Petition— 7 Pa. St. 173 78, 201 Ferguson's Appeal— 159 Pa. St. 39; 28 Atl. 130 490 Ferguson v. Stamford— 60 Conn. 432; 22 Atl. 782 186 Ferris v. Chicago— 162 III. Ill; 44 N. E. 436 337, 499 Ferry v. Campbell— 110 la. 290; 50 L. R. A. 92; 81 N. W. 604. . . 816 Ferry v. Tacoma— 34 Wash. 652; 76 Pac. 277 507, 725 Person's Appeal— 96 Pa. St. 140 688^ Field V. Barber A. Pav. Co.— 117 Fed. 925 697 Field V. Barber A. Pav. Co.— 194 U. S. 618; 48 L. ed. 1142; 24 Sup. Ot. Rep. 784 95, 324, 400, 408, 424, 735 Field V. Chicago— 198 111. 224; 64 N. E. 840 357, 572 Field V. Highland Park (Mich.)— 104 N. W. 393 713 Field V. Western Springs— 181 111. 186; 59 N. E. 929 597, 758, 787, 788 Fifleld V. Marinette Co.— 62 Wis. 532; 22 N. W. 705 79a Fifty-fourth Street, In re— 165 Pa. St. 8; 30 Atl. 503 207, 213, 252 Findley v. Hull— 13 Wash. 236; 43 Pac. 28 .105, 659, 665 Findley v. Frey— 51 Ohio St. 390; 38 N. E. 114 169, 179, 527 Finnell v. Kates— 19 Ohio St. 405 299 Farr v. Detroit— 136 Mich. 200; 99 N. W. 19 723 Finn^ v. Oshkosh— 18 Wis. 210 660, 672, 688; First Ect'l Soc. v. Hartford— 35 Conn. 66 238 First M. E. Church v. Atlanta— 76 Georgia 181 62 First Nat'l Bank v. Amoldia— 63 Mo. 229 423, 425 First Nat'l Bank v. Isaacs— 161 Ind. 278; 68 N. E. 288 812. First Nat'l Bank v. Nelson — 64 Mo. 418 , 423, 425 First Presbyterian Church v. Fort Wayne — 36 Ind. 338; 10 Am. Rep. 35 261 Fisher v. Chicago— 213 111. 268; 72 N. E. 680 223, 546, 732 Fisher v. People— 157 111. 85; 41 N. E. 615 610. XXXVl TABLK OF CASES. (The references are to sections.) Fiske V. People— 188 111. 206; 52 L. R. A. 291; 58 N. E. 985.... 323, 366, 410 Fisher v. St. Louis— i4 Mo. 482 660 Fitzgerald v. Sioux City— 125 la. 396; 101 N. W. 268.... 135, 728, 737 Fitzhugh V. Bay City— 109 Mieh. 581 ; 67 N. W. 904 722 Flatbush Ave., In re— I Barb. 286 150 Fletcher v. Oshkosh— 18 Wis. 240 659, 664 Flewellin v. Proetzel— 80 Tex. 191; 15 S. W. 1043 134 Flint V. Webb— 25 Minn. 93 214 Floyd V. Atlanta Bk. Co.— 109 Ga. 779 723 Fogg V. Hoquiam— 23 Wash. 340; 63 Pae. 234 830, 832 Foley V. Bullard— 99 Cal. 516; 33 Pac. 1081 676 Follansbee v. Chicago— 62 111. 288 600 Folmsbee v. Amsterdam— 142 N. Y. 118; 36 N. E. 821.. 560, 760, 829 Folsom, In re— 56 N. Y. 60 316 Fond du Lac Water Co. v. Fond du Lao— 82 Wis. 322; 16 L. R. A. 581; 52 N. W. 439 243 Foote V. Milwaukee— 18 Wis. 271 735 Ford V. North Des Moines— 80 la. 626 ; 45 N. W. 1031 99 Forsythe v. Chicago— 62 111. 304 686 Forsyth v. Hammond— 166 U. S. 506, 518; 41 L. ed. 1095, 1100; 17 Sup. Ct. Rep. 665 146 Fort Dodge, etc., Co. v. Fort Dodge — 115 la. 568; 89 N. W. 7.. 656, 658 Ft. Scott V. Kaufman— i4 Kan. 137; 24 Pa& 64 588 Ft. Wayne v. Shoaf— 106 Ind. 66; 5 N. E. 403 231, 774 Fobs v. Chicago— 56 111. 354 366 Foster v. Alton— 173 111. 587; 51 N. E. 76. .383, 613, 668, 820, 836, 839 Foster v. Commissioners — 131 Mass. 225 218 Foster v. Commissioners — 133 Mass. 321 745 Foster v. Wood Co.— 9 Ohio St. 540 77, 215 Fountain v. Jgewark— 57 N. J. Eq. 76 ; 40 Atl. 212 821 Fowler v. St. Joseph— 37 Mo. 228 135, 168, 522, 689, 778 Frantz v. Jacob— 88 Ky. 525; 11 S. W. 654 444 Frederick v. Seattle— 13 Wash. 428 ; 43 Pac. 364 743, 821, 839 Freeland v. Williams— 131 U. S. 418; 33 L. ed. 198; 9 Sup. Ct. Rep. 763 92, 93 Freeport St. R. Co. v. Freeport— 151 111. 451; 38 N. E. 137 330, 718, 820, 823, 831, 836, 839 French v. Barber A. Pav. Co.— 181 U. S. 324; 45 L. ed. 879; 21 Sup. Ct. Rep. 625 3, 50, 88, 102, 170, 203, 625, 774 French v. Lansing— 30 Mich. 379 820 French v. Milwaukee — 49 Wis. 584; 6 N. W. 244 641 Freetown v. Bristol — 9 Pick. 46 601 Frevert v. Mayor, etc.— 63 N. J. L. 202; 42 Atl. 773 463 Frosh V. Galveston— 73 Tex. 401 ; 11 S. W. 402 286, 500 Friedenwald v. Mayor, etc.— 74 Md. 116; 21 Atl. 555 638 Friedrich v. Milwaukee— 114 Wis. 504; 90 N. W. 174 159, 167, 171, 318, 325, 467, 525 Friedrich v. Milwaukee— 118 Wis. 254; 95 N. W. 126 159, 480, 498, 548, 762, 638 Fuller V. Elizabeth — 42 N. J. L. 427 615, 773 G. Gaffney v. Gough— 36 Cal. 104 652 Gafney v. San Francisco — 72 Cal. 146 ; 13 Pae. 467 500, 675 ■Gage V. Chicago— 143 111. 157; 32 N. E. 264 336, 374 TABLE OF CASES. XXXYll (The references are to sections.) Gage V. Chicago— 146 111. 499; 34 N. E. 1034 515, 610 Gage V. Chicago— 162 111. 313; 44 N. E. 729 279, 280, 334 Oage V. Chicago— 191 111. 210; 60 N. E. 896 377 Gage V. Chicago— 193 111. 108; 61 N. E. 850 611 Gage V. Chicago— 195 111. 490; 63 N. E. 184 362, 505 Gage V. Chicago— 196 III. 512; 63 N. E. 1031 338, 360, 361, 505 Gage V. Chicago— 201 111. 93; 66 N. E. 374 325 Gage V. Chicago— 203 III. 26; 67 N. B. 477 118 Gage V. Chicago— 207 111. 56; 69 N. E. 588 359 Gage V. Chicago— 216 111. 107; 74 N. E. 726 365, 555, 710 Gage V. Graham— 57 111. 144 39, 41, 74, 194 Gage V. Parker— 103 111. 528 724 Gage V. People— 163 111. 39; 44 N. E. 819 685 Gage V. People— 193 III. 316; 61 N. E. 1045; 56 L. R. A. 916.... 419, 605 Gage V. People— 200 III. 432; 65 N. E. 1084 344, 400 Gage V. People— 205 111. 547 ; 69 N. E. 80 687, 695 Gage V. People— 207 111. 61; 69 N. E. 635 280, 411, 615, 686 Gage V. People— 207 111. 377; 69 N. E. 840 352, 506, 686 Gage V. People— 207 111. 615; 69 N. E. 635 506, 621 Gage V. People— 213 111. 347; 72 N. E. 1062 613, 621 Gage V. People— 213 111. 410 ; 72 N. E. 1084 622, 686 Gage V. People— 213 111. 468; 72 N. E. 1108 426, 558 Gage V. People— 219 111. 20 ; 76 N. E. 56 621 Gage V. People— 219 111. 634; 76 N. E. 834 700 Gainesville v. Dean (Ga.)— 53 S. E. 183 775 Galesburg v. Searles— 114 111. 217; 29 N. E. 686 14, 204 Gallaher v. Garland— 126 la. 206; 101 N. W. 867 300, 728, 733, 790, 801, 843 Gait V. Chicago— 174 111. 605; 51 N. E. 653 131, 331, 490, 601 Galveston v. Heard — 54 Tex. 429 299 Galveston v. Trust Co.— 16 C. C. A. 319; 107 Fed. 325 23 Gans V. St. L. K. & N. W. R. Co.— 113 Mo. 308; 18 L. R. A. 339; 35 Am. St. Rep. 706; 20 S. W. 658 108, 116 Gantz, In re— 85 N. Y. 536 327 Garden City v. Trigg- 57 Kan. 632; 47 Pac. 524 661 Gardiner v. Collins— 188 Mass. 223; 74 N. E. 341 503, 820 Gardner v. The Collector- 6 Wall. 499-504; 18 L. ed. 890, 891.. 535 Garrett v. St. Louis— 25 Mo. 505; 69 Am. Dec. 475 39, 41, 74, 194 Garvey, In re— 77 N. Y. 523 212 Garvin v. Daussman— 114 Ind. 429; 5 Am. St. Rep. 637; 16 N. E. 826 99, 100, 101, 103, 305, 601 Gas Light Co. v. New Albany— 158 Ind. 268; 63 N. E. 458. . . .620, 695 Gaston v. Portland — 41 Oreg. 373; 69 Pac. 34-445 691, 730, 806 Gatch V. Des Moines— 63 la. 718; 18 N. W. 310. . .96, 97, 309, 559, 578 Gates V. Grand Rapids— 134 Mich. 96; 95 N. W. 998 305, 503 Gauen v. Drainage Dist.— 131 111. 446; 23 N. E. 643 16, 593 Gault's Appeal— 33 Pa. St. 94 41 George v. Young— 45 La. Ann. 1232 ; 14 So. 137 220 Genet v. Brooklyn— 99 N. Y. 206; IN. E. 777 36, 115, 211 Genois v. St. Paul— 35 Minn. 330; 29 N. W. 129 749 Gerke v. Purcell— 25 Ohio St. 229 263 Germania Bank v. St. Paul— 81 N. W. 542; 79 Minn. 29 769 German Am. Bank v. Spokane— 17 Wash. 315; 38 L. R. A. 259; 47 Pac. 1103; 49 Pac. 542 659, 662, 664, 683 German Savings, etc.. Society v. Ramish — 138 Cal. 120; 69 Pac. 89; 70 Pac. 1067 91, 133, 167, 699 SXXVaU TABLE OF CASES. (The references are to sections.) Geat V. Cincinnati— 26 Ohio St. 275 655, 657 Gibbons v. Ogden— 9 Wheat. 1 ; 6 L. ed. 23 4S Gibler v. Mattoon— 167 111. 18; 47 N. E. 319 611 Gibson v. Chicago — ^22 111. 566 501, 502, 553, 555, 557 Gibson v. Commissioners— 128 Ind. 65; 11 L. R. A. 835; 27 N. E. 235 66 Gilerest v. Macartney- 97 la. 138; 66 N. W. 103 168, 477 Gilkerson v. Scott— 76 111. 509 323, 578, 648 Gill V. Oakland— 124 Cal. 335; 57 Pae. 150 312, 763, 820, 835 Gill V. Patton— 118 Iowa 88; 91 N. W. 904 135, 522, 523, 729, 820, 823 Gillette v. Denver— 21 Fed. 822 60, 104, 177, 298, 537, 794 Oilman v. Fox— 10 Kan. 509 722 Oilman v. Milwaukee— 55 Wis. 328; 13 N. W. 266 801 Oilman v. Milwaukee— 61 Wis. 588; 21 N. W. 640 397, 465, 762 Gilmore v. Hentig— 33 Kan. 156; 5 Pac. 781 179, 294, 301, 500, 578, 803 Gilmore v. Utica — 121 N. Y. 561; 24 N. E. 1009 238, 239 Gilmore v. Utica— 131 N. Y. 26; 29 N. E. 841 320, 402, 407, 511, 546, 603 Given v. State— 160 Ind. 552; 66 N. E. 750 32 Givens v. Chicago — 186 111. 399; 57 N. E. 1095 292, 354, 355 Givens v. Chicago— 188 111. 348; 58 N. E. 912 146, 325 Givin v. Simon— 116 Cal. 604; 48 Pac. 720 409 Givins v. People— 194 111. 150; 88 Am. St. Rep. 143; 62 N. E. 534 406, 411, 80T Gleason v. Waukesha Co. — 103 Wis. 225; 79 N. W. 249 113, 303, 402, 604 Glover v. People— 188 111. 576; 59 N. E. 429 613 Glover v. People— 194 111. 22; 01 N. E. 1047 710 Glover v. People— 201 111. 545; 66 N. E. 820 410 Goddard, Nathaniel, Petition of — 16 Pick. 504; 28 Am. Dee. 259.. 33 Goldstein v. Milford— 214 111. 528; 73 N. E. 758 280, 613, 621 Goodall V. Milwaukee — 5 Wis. 32 633 Goodrich v. Chicago — 218 111. 18; 75 N. E. 805 ..'. 812 Goodrich v. Detroit — 12 Mich. 279 656, 658 Goodrich v. Detroit — 123 Mich. 559; 82 N. W. 255. . .111, 161, 52l' 619 Goodrich v. Detroit— 184 U. S. 432; 46 L. ed. 627; 22 Sup. Ct' Rep- 397 97, 104, 203, 520 Goodrich v. Milwaukee — 24 Wis. 422 633 689 Goodrich v. Miuonk— 62 111. 121 499, 517, 68l' 685 Goodrich v. Omaha — 10 Neb. 98; 4 N. W. 424 563 Goodrich v. Turnpike Co. — 26 Ind. 119 66 215 216 Goodwillie v. Detroit — 103 Mich. 283; 61 N. W. 526. ! ! ! ! . .' '722 Goodwillie v. Lake View — 137 111. 51; 27 N. E. 15 308, 451, 452, 500, 530,'649,"650, 783 Goodwin v. Commissioners — 146 Ind. 164; 44 N. E. 1110.... 693 837 Goodyear, etc., Co. v. Jackson— 55 L. R. A. 692; 50 C. C A 159- 112 Fed. 146 ■ '572 Gordon v. Chicago— 201 111. 623; 66 N. E. 823 610 Gordon v. People— 154 111. 664; 39 N. E. 560 '. . . . 317 390 Gorman v. State — 157 Ind. 205 ; 60 N. E. 1083 '706 Gorton v. Chicago— 201 111. 534 ; 66 N. E. 541 '.'.'.'.'.'.'.'.'." 824 Gosnell v. Louisville — 104 Ky. 201 ; 46 S. W. 722 . . 68 414 Gould v. Baltimore— 59 Md. 378, 380 ..26, 42* 656 Grace v. Newton — 135 Mass. 490 310, '741' 744 Graham v. Chicago — 187 111. 411; 58 N. E. 393 ...'.412' 442 TABLE OF CASES. XXXIX (The references are to sections.) Graham v. Conger— 85 Ky. 582; 4 S. W. 327 215, 444 Grand Rapids v. Blakely — 40 Mich. 367 ; 29 Am. Rep. 539 606, 764, 769 Grand Rapids, etc. v. Grand Rapids— 92 Mich. 564; 52 N. W. 1028 122, 158, 301, 548 Grand Rapids v. Luce— 92 Mich. 92; 52 N. W. 635 647 Grant v. Bartholomew— 58 JSfeb. 839 ; 80 N. W. 45 135, 137, 271, 281, 720 Gray v. Cicero— 177 111. 459; 53 N. E. 91 362 Gray v. Richardson— 124 Cal. 460; 57 Pac. 385 420, 684 Gregory v. Ann Arbor— 127 Mich. 454; 86 N. W. 1013. . . .520, 541, 559 Greeley v. Cicero— 148 111. 632; 36 N. E. 603 188 Greeley v. People— 60 111. 19 370 Green v. Chicago— 97 111. 370 634 Green v. People— 130 111. 515; 22 N. E. 602 167 Green v. Springfield— 130 111. 515; 22 N. E. 602 168, 248, 335, 461, 612 Green v. Ward- 82 Va. 324 134, 138, 201, 654 Green Bay v. Brauns— 50 Wis. 204; 6 N. W. 503 330 Green Co. Commissioners v. Lenoir — 92 N. C. 180 231 Greendale v. Suit— 163 Ind. 282 ; 71 N. E. 658 135 Greenfield v. State— 113 Ind. 598; 15 N. E. 241 757 Greensboro v. McAdoo— 112 N. C. 359; 17 S. E. 178 136, 138 Greensburg v. Laird— 138 Pa. St. 533; 21 Atl. 96 569 Greensburg v. Young— 53 Pa. St. 280 144, 201, 628 Greenwood v. La Salle— 137 111. 225; 26 N. E. 1089 520 Greenwood v. Morrison — 128 Cal. 350; 60 Pac. 971 121, 600 Grey v. People— 194 111. 486 ; 62 N. E. 894 349 Gridley v. Bloomington— 88 111. 554 ; 30 Am. Rep. 566 140, 228, 677 Griffin v. Chicago— 57 111. 317 321 Griffin v. Dogau— 48 Miss. 11 35 Griggsry Const. Co. v. Freeman— 108 La. 435; 58 L. R. A. 349; 32 So. 399, 400 26 Grim v. Weissenberg School Dist.— 57 Pa. St. 433; 91 Am. Dec. 237 817, 821, 827 Grinnell v. Adams— 34 Ohio St. 44 285 Grinnell v. Des Moines— 57 la. 144; 10 N. W. 330... 177, 361, 584, 589 Griswold v. Benton— 34 Ohio St. 482 797 Griswold v. Pelton— 34 Ohio St. 482 133 Groesbeck v. Cincinnati— 51 Ohio St. 365; 37 N. E. 707 538 Groff V. Philadelphia— 150 Pa. St. 594; 24 Atl. 1028 625 Gross V. Grossdale— 177 111. 248 ; 52 N. E. 372 556 Gross V. People— 172 111. 571; 50 N. E. 334 348, 354, 357, 380, 383, 613 Gross V. People— 193 111. 260; 61 N. E. 1012; 86 Am. St. Rep. 322. . 615 Gue V. Tide Water Canal Co.— 24 How. 263 ; 16 L. ed. 636 243, 690 Guest V. Brooklyn— 69 N. Y. 500, 506, 516 46, 49, 198, 778, 779, 780, 804 Guild V. Chicago— 82 111. 472 25, 233, 251 Gurnee v. Chicago — 40 111. 165 131, 488, 506, 520, 736 Guthrie v. Territorj- 1 Okla. 188; 21 L. R. A. 841; 31 Pac. 190.. 89 Guyer v. Rock Island— 215 111. 144; 74 N. E. 105 283, 285, 355, 360, 381 H Hackett v. State— 113 Ind. 532; 15 N. E. 799 302, 710, 720 Hackworth v. Louisville— 105 Ky. 234; 50 S. W. 33 131, 360, 441 Hackworth v. Ottumwa— 114 la. 467; 87 N. W. 424 41, 168, 172 xl TABLE OF CASES. (The references are to sections.) Hadley v. Dague— 130 Cal. 207; 62 Pac. 500 164, 167, 171 Haegele v. Mallinckrodt — 46 Mo. 577 374 Hagar v. Recla. Dist. Ill U. S. 701; 28 L. ed. 569; 4 Sup. Ct. Rep. 663 93, 95, 224 Hagar v. Yolo County-^7 Oal. 222 18, 59, 117, 207, 226, 741 Hager v. Burlington— 42 Iowa 661 368 Haisch v. Seattle— 10 Wash. 435; 38 Pae. 1131 435, 693, 730 Hale V. Kenosha— 29 Wis. 599 , 17, 84, 151 Haley v. Alton— 152 III. 113; 38 N. E. 750 280, 527, 550 Hall V. Chippewa Falls-^7 Wis. 267; 2 N. W. 279 372, 511, 659 Hall V. Moore— 3 Neb. (unof.) 1574; 92 N. W. 294 727, 728 Hall V. Street Com'rs- 177 Mass. 434; 59 N. E. 68 820 Hallinger v. Davis— 146 U. S. 317; 36 L. ed. 989; 13 Sup. Ct. Rep. 105 93 Halpin v. Campbell— 71 Wis. 493 342 Halsey v. Lake View— 188 111. 540; 59 N. E. 234 412 Halsey v. People— 84 111. 89 217 Hamar v. Leihy— 124 Wis. 265; 102 N. W. 568 510, 736 Hamilton Ave.— 14 Barb. 405 150 Hamilton v. Chopard— 9 Wash. 352; 37 Pac. 472 705 Hamilton v. Cummings — 1 Johns. Ch. 516 776 Hamilton v. Fond du Lac— 25 Wis. 490 523, 776, 783 Hammond v. People— 169 111. 545; 48 N. E. 573 618, 704 Hamilton v. People— 194 111. 133; 62 N. E. 533 411 Hammett v. Philadelphia — 65 Pa. St. 146 ; 3 Am. Rep. 615 11, 78, 107, 129, 133, 154, 183, 199, 207, 210, 211, 747 Hancock St. Extension— 18 Pa. St. 26 78, 208, 210 Hancock v. Bowman — 49 Cal. 413 704 Hancock v. Whittemore — 50 Cal. 522 654 Hand v. Elizabeth— 31 N. J. L. 547 169 Hand v. Fellows- 148 Pa. St. 456; 23 Atl. 1126 170, 201 Hanseom v. Omaha— 11 Neb. 37; 7 N. W. 739, 741 27, 154, 195 Hansen v. Hammer— 15 Wash. 315; 46 Pac. 332 Ill, 220 Hardin v. Chicago— 186 111. 424; 57 N. E. 1048 354, 355 Hare v. Kennerly— 83 Ala. 608 ; 3 So. 683 56, 134 Harman v. Omaha— 53 Neb. 164; 73 N. W. 671 135 Harman v. People— 214 111. 454 ; 73 N. E. 760 621 Harmon v. Chicago — 140 111. 374 ; 29 N. E. 732 338 Harney v. Applegate — 57 Cal. 205 704 Harney v. Benson— 113 Cal. 314; 45 Pac. 687.. 121, 167, 579, 722, 750 Harnung v. McCarthy— 126 Cal. 17; 58 Pac. 303 820 Harper v. Dowdney— 113 N. Y. 644 ; 21 N. E. 63 702 Harper v. Grand Rapids— 105 Mich. 551 ; 63 N. W. 517 692 Harriman v. lonkers — 181 N. Y. 24; 73 N. E. 492 .525, 567 Harrington v. Smith — 28 Wis. 43 142 Harris v. Anaonia — 73 Conn. 359; 47 Atl. 672 810 820 Harris v. Chicago— 162 111. 288; 44 N. E. 437 456, 53o! 686 Harris v. Chicago— 213 111. 47 ; 72 N. E. 762 574 Harris -r. Macomb — 213 111. 47; 72 N. E. 762 237 Harris v. Supervisors Colusa Co. — 49 Cal. 662 494 Harris v. Tacoma (Wash.) — 81 Pac. 690 724 Harrisburg v. Baptist — 156 Pa. St. 526 ; 27 Atl. 8 696, 698, 720 Harrisburg v. McCormick — 129 Pa. St. 213; 18 Atl. 126 I73' 464 Harrisburg v. Funk— 200 Pa. St. 348; 49 Atl. 1135 ' 210 Harrisburg v. McPherran- 200 Pa. St. 343 ; 49 Atl. 988 170 Harrisburg v. Sigelbaum — 151 Pa. St. 172; 20 L. R. A. 834; 24 Atl 1070 212" 569 TABLE OF CASES. xll (The references are to sections.) Harrison v. Chicago— 163 111. 129; 44 N. E. 395 359, 486 Harrison v. Milwaukee — 49 Wis. 247; 5 N. W. 326 751, 768 Harrison v. Sauerwein — 70 la. 291 ; 30 N. W. 571 729 Harrison v. Supervisors — 51 Wis. 646; 8 N. W. 731 647 Hart V. Henderson— 17 Mich. 218 790 Hart V. Smith— 44 Wis. 213 792 Hart V. W. Chi. Park Com'rs— 186 111. 464; 57 N. B. 1036 756 Hartford v. West Middle Dist.— 45 Conn. 462; 29 Am. Rep. 687 186 237 261 Harts V. People— 171 111. 458 ; 49 N. E. 538 '. . 36l', 520 Harvard v. St. Clair, etc., Drainage Co. — 51 111. 130 35, 62, 86, 325 Harvard College v. Boston — 104 Mass. 470 262 Harwood v. Bloomington— 124 111. 48 ; 16 N. E. 91 644 Harwood v. Donovan— 188 Mass. 487; 74 N. E. 914 724, 725, 738 Haskell v. Bartlett— 34 Cal. 281 317, 669 Haslam v. G. & S. W. R. Co.— 64 111. 353 636 Hassan v. Rochester- 65 N. Y. 516 806 Hassan v. Rochester— 67 N. Y. 528 233, 234, 256, 790, 799 Hastings v. Columbus — 42 Ohio St. 585 349, 410, 425, 427, 697 Hatzung v. Syracuse — 92 Hun 203; 36 N. Y. Supp. 521 811 Haubner v. Milwaukee— 124 Wis. 153; 101 N. W. 930; 102 N. W. 578 112, 114, 117, 480, 642, 761, 822, 828 Haughawout v. Hubbard— 131 Cal. 675; 63 Pac. 1078 393, 500, 586 Hause v. St. Paul— 94 Minn. 115; 102 N. W. 221 271, 618 Haviland v. Columbus— 50 Ohio St. 471; 34 N. E. 679.. 169, 173, 477 Hawes v. Chicago— 158 111. 653; 30 L. R. A. 225; 42 N. E. 373 339, 341 Hawes v. Fliegler— 87 Minn. 319; 92 N. W. 223 146, 227, 320 Hawkins v. Horton— 91 Minn. 285; 97 N. W. 1053 271, 282, 392 Hawley v. Ft. Dodge— 103 Iowa 573 ; 72 N. W. 756 594 Hawthorne v. E. Portland — 13 Ore. 271 ; 10 Pac. 342 136, 307, 532, 533, 652, 726 Hayden v. Atlanta— 70 Ga. 817 62, 114, 167, 446 Hayes v. Douglass Co.— 92 Wis. 429; 31 L. R. A. 213; 53 Am. St. Rep. 926; 65 N. W. 482 112, 134, 166, 171, 307, 455, 752 Hays V. Cincinnati— 62 Ohio St. 116; 56 N. B. 658 504 Hays V. Jones, 27 Ohio St. 218 284 Head v. Amoskeag Co.— 113 U. S. 9; 28 L. Ed. 889; 5 Sup. Ct. Rep 441 224 Heath v. McCrea— 20 Wash. 342; 55 Pac. 432 458, 536, 618, 620, 792, 821, 826, 833 Hedge v. Oskaloosa (Iowa)— 99 N. W. 557 332, 370, 822, 829 Heinroth v. Kochesperger— 173 111. 205 ; 50 N. E. 171 .758, 786, 787, 788, 795, 801, 807 Heiple v. Portland— 13 Ore. 97 ; 8 Pac. 907 233, 328 Hellenkamp v. Lafayette— 30 Ind. 192 727 Helm V. Witz (Ind.)— 73 N. E. 846 680 Hellman v. Shoulters— 114 Cal. 136; 44 Pac. 915; 45 Pac. 1057.. 400 791 792 796 Heller v. Garden City— 58 Kan. 263; 48 Pac. 841 '. '. .231^ 261 Heller v. Milwaukee— 96 Mo. 134; 70 N. W. 1111 659 Heman v. Allen— 156 Mo. 535; 57 S. W. 539 169, 177, 194, 19S, 299, 584 Heman v. Schulte— 166 Mo. 409 ; 66 S. W. 163 40, 581 Hemingway v. Chicago— 60 111. 324 301, 689 Hempstead v. Des Moines— 63 Iowa 36 ; 18 N. W. 676 634 Henderson v. Edmunds — 3 Mackey 142 163 xlii TABLE OF CASES. (The references are to sections.) Henderson v. Lambert— 14 Bush 25 135, 409, 695 Henderson v. Mayor, etc.— 8 Md. 352 70, 496, 606 Henderson v. Minneapolis— 32 Minn. 319; 20 N. W. 322 116 Hendriek v. W. Springaeld- 107 Mass. 541 660 Hendriekson v. Pt. Pleasant— 65 N. J. L. 535; 47 Atl. 465 492 Henis v. Lincoln— 102 Iowa 69; 71 N. W. 189 331 Henkel v. Mattoon— 170 111. 316; 48 N. E. 908 492 Hentig v. Gilmore— 33 Kan. 156, 534; 5 Pae. 781; 6 Pac. 304.. 291, 292 Hennepin Co. v. Bartleson— 37 Minn. 343 ; 34 N. W. 222 298 Hennessy v. Douglas Co.— 99 Wis. 129 ; 74 N. W. 983 106, 166, 170, 173, 250, 298, 302, 439, 604 Hennessy v. St. Paul— 54 Minn. 219; 55 N. W. 1123 618 Henaley v. Butte (Mont.)— 83 Pac. 481 774 Hepburn v. Curtis— 7 Watts 300; 32 Am. Dec. 766 816, 821, 827 Herbert v. Chicago— 213 111. 452; 72 N. E. 1097 293 Herhold v. Chicago— 106 111. 547 15 Herman v. State— 54 Ohio St. 506; 32 L. E. A. 734; 43 N. E. 990. . 591 Herrman v. Guttenberg— 62 N. J. L. 605 ; 43 Atl. 703 27 Herschberger V. Pittsburgh- 115 Pa. St. 78; 8 Atl. 381... 293, 811, 815 Hertig v. People— 159 111. 237; 50 Am. St. Rep. 162; 42 N. E. 879. . 321 Hessler v. Drainage Com'rs — 53 111. 105 35, 86, 325 Heth V. Radford— 96 Va. 272 ; 31 S. E. 8 107 Heth V. Fond du Lac — 63 Wis. 228 ; 53 Am. Rep. 279 ; 23 N. W. 495 647 Hetley v. Bayer — 2 Cro. Jac. 336 223 Hewes v. Gloss— 170 111. 436; 48 N. E. 922 153, 221, 394, 400, 618 Hewes v. Eeis — 40 Cal. 255 287, 310, 530 Hervetson v. Chicago — 172 111. 112; 49 N. E. 992 611 Hibben v. Smith- 158 Ind. 206; 62 N. E. 447 619 Hibben v. Smith— 191 U. S. 310; 48 L. Ed. 195; 24 Sup. Ct. Rep. 88 96, 97, 102, 146 Hickman v. Kansas City — 120 Mo. 110; 23 L. R. A. 658; 41 Am St. Rep. 684; 25 S. W. 225 116 Higgins V. Ausmuss — 77 Mo. 351 . . . ; 654 Higgins V. Bordages — 88 Tex. 458; 53 Am. St. Rep. 770; 31 S. W 52, 803 22, 263 Higgins V. Chicago— 18 111. 276 256, 653, 655 Highlands v. Johnson — 24 Colo. 371; 51 Pac. 1004 669 Higman v. Sioux City (Iowa) — 105 N. W. 524 94 504 Hill V. Figley— 25 111. 156 '.'.' ' 557 Hill V. Higdon— 5 Ohio St. 243; 67 Am. Dee. 289 '. 11, 38, 77, 154, 198, 199, 657 Hill V. Oakland— 124 Cal. 335; 57 Pac. 154 661 Hill V. Swingley— 159 Mo. 45; 60 S. W. 114 586 Hill V. Warrell— 87 Mich. 135; 49 N. W. 479 327, 328, 533 Hilliard v. Asheville — 118 N. C. 845; 24 S. E. 738 76 lOo' 169 Hills V. Chicago— 60 111. 86 ' '689 Hilton V. St. Louis — 99 Mo. 199 ; 12 S. W. 657 ['. 645 Himmelmann v. Bateman — 50 Cal. 11 707 Himmelmann v. Cahn — 49 Cal. 285 310 519 Himmelmann v. Coffran — 36 Cal. 411 I35' 3J9 Himmelmann v. Hoadley — 44 Cal. 213 _' giQ Himmelmann v. Saterlee — 50 Cal. 68 ' I33 Himmelmann v. Spanagel — 39 Cal. 389 I'g 692 Himmelmann v. Steiner — 38 Cal. 175 ' qq2 Himmelmann v. Townsend — 49 Cal. 150 ' ] ggQ Hines v. Leavenworth — 3 Kan. 186 20 67 120 135 Hinkel v. Mattoon— 170 111. 316; 48 N. E. 908 311^ 493^ 494 TABLE OF CASES. xliii (The references are to sections.) Hinsdale v. Shannon— 182 111. 312; 55 N. E. 327 345, 362 Hintze v. Elgin— 186 111. 251; 57 N. E. 856 323, 358 Hitchcock V. Galveston— 96 U. S. 341 ; 24 L. ed. 659 661 Hixon V. Oneida Co.— 82 Mo. 515; 52 N. W. 445 788, 789 Hoflfeld V. BuflFalo— 130 N. Y. 38; 29 N. E. 747 179, 739 Hoke V. Atlanta— 107 Ga. 416; 33 S. E. 412 773 Holbrook v. Dickinson — 46 111. 285 173, 538 Holden v. Chicago— 172 111. 263; 50 N. E. 181 374, 375 Holden v. Alton— 179 111. 318; 53 N. E. 556 366, 410 Holden v. Chicago— 212 111. 289; 72 N. E. 435 841 Holden v. Hardy- 169 U. S. 366; 42 L. ed. 780; 18 Sup. Ct. Rep. 383 92, 95 Holdom V. Chicago— 169 111. 109; 48 N. E. 164 336, 459 Holland v. Mayor— 11 Md. 186; 69 Am. Dec. 195 656 Holland v. People— 189 111. 348; 59 N. E. 753 294, 381 Holliday v. Atlanta— 96 Ga. 377; 23 S. E. 406 841 Holloran v. Morman— 27 Ind. App. 309 ; 59 N. E. 869 726 Holly V. Orange County — 106 Cal. 426; 39 Pac. 790 9, 18, 38 Holmes v. Hyde Park— 121 111. 128; 13 N. E. 540 515, 530, 783 Holmes v. Mayor, etc.— 12 N. J. Eq. 299 207, 805 Holt V. E. St. Louis— 150 111. 530; 37 N. E. 927 250 Holt V. Somerville— 127 Mass. 408 218, 248, 399, 514, 742 Helton V. Milwaukee— 31 Wis. 27 207, 229, 630, 637 Holzhauer v. Newport— 94 Ky. 396; 22 S. W. 752 68 Honore v. Chicago— 62 111. 305 309, 681 Hood V. Finch— 8 Wis. 381 105, 637 Hoover v. People— 171 111. 182; 49 N. E. 367 381, 650, 652, 653, 671, 684 Horbach v. Omaha— 54 Neb. 83; 74 N. W. 434 32, 296, 778, 783 Horn V. New Lots— 83 N. Y. 100 ; 38 Am. Eep. 402 767 Hosmer v. Drainage Dist. — 135 111. 51; 26 N. E. 587 593 Householder v. Kansas City — 83 Mo. 488 697 Houston V. Chicago- 191 111. 559; 61 N. E. 396 348, 649 Houston V. McKenna — 22 Cal. 550 428, 540 Hoyt V. East Saginaw — 19 Mich. 39; 2 Am. Rep. 76 71, 122, 181, 193, 288, 387 Howard v. Ind. Church— 18 Md. 451 70, 168, 192, 286 Howard, etc., Inst. v. Newark— 52 N. J. L. 1; 18 Atl. 672 821, 825 Howard St., In re— ^142 Pa. St. 601; 21 Atl. 974 209, 657 Howe V. Cambridge — 114 Mass. 388 175 Howe V. People— 86 111. 288 523 Howell V. Bristol— 8 Bush 493 109, 120, 168, 191 Howell V. Buffalo— 15 N. Y. 512 761 Howell V. Buffalo— 37 N. Y. 267 821, 825 Howell V. Tacoma — 3 Wash. 711; 28 Am. St. Rep. 83; Pac. 447 536, 728, 791 Howes V. Racine— 21 Wis. 410 689 Hubbard v. Norton— 28 Ohio St. 116 421, 679 Hubbell Son & Co. v. Bennett Bros. (la.)— 106 N. W. 375 812 Huddlestone v. Eugene— 34 Oreg. 343; 43 L. R. A. 444; 55 Pac. 868 514, 576 Hudson V. People— 188 111. 103; 80 Am. St. Rep. 166; 58 N. E. 964, 965 25, 712, 713 Hudson Co. v. State— 24 N. J. L. 718 309 Hudson, etc.. Protectory v. Kearney — 56 N. J. L. 385 ; 28 Atl. 1043 143, 257 liuff V. Cook— 44 Iowa 639 810 xliv TABLE OF CASES. (The references are to sections.) Hughes, In re— S3 N. Y. 512 713 Hughes V. Momenee— 163 111. 535; 45 N. E. 300 601 Hughes V. Momenee— 164 111. 16; 45 N. E. 302 22, 361 Hughes V. Parker— 148 lud. 692; 49 N. E. 243 288, 706, 746 Hughes V. Trustees— 1 Ves. Sr. 188 776 Huidenkoper v. Meadville— 83 Pa. St. 158 566, 821, 827 Hulbert v. Chicago— 213 111. 452; 72 N. E. 1097 503 Hulbert v. Chicago— 217 111. 286; 74 N. E. 726 503, 652 Hulbert v. People— 213 111. 472 97, 503 Hull V. Chicago— 156 111. 381 ; 40 N. E. 937 368, 376 Hull V. People— 170 111. 246; 48 N. E. 984 349, 351, 612, 615 Hull V. W. Chi. Park Com'rs— 185 111. 150; 57 N. E. 1 350 Humphrey v. Nelson— 115 111. 45; 4 N. E. 637 793 Hun, In re—Ui N. Y. 472 652 Hundley v. Commissioners— 67 111. 559 64, 187, 484 Hungerford v. Hartford — 39 Conn. 279 756 Hunuerberg v. Hyde Park— 130 111. 156; 22 N. E. 486 529 Hunt V. Chicago— 60 111. 183 486, 549 Hunt V. Utica— 18 IST. Y. 442 658, 659 Hunter's Appeal— 71 Conn. 189 ; 41 Atl. 557 274 Hurford v. Omaha — 4 Neb. 336 .'44, 74, 119, 563 Hurtado v. California— 110 U. S. 516; 28 L. ed. 232; 4 Sup. Ct. Rep. Ill, 292 93 Huse V. Merriam — 2 Me. 375 800 Huston V Clark— 112 111. 344 532 Huston V. Tribbetts— 171 111. 547; <63 Am. St. Eep. 166; 49 N. .E. 711 16, 190 Hutchcson v. Storrie— 92 Tex. 685; 45 L. E. A. 289; 71 Am. St. Eep 884; 51 S. W. 848 201, 293, 300, 480, 608, 811, 815 Hutchison v. Omaha— 52 Neb. 345 ; 72 N. W. 218 •136, 281, 528, 727, 790 Hutson, etc. v. Woodbridge, etc., Dist— 79 Cal. 90; 16 Pac. 549 21 Pac. 435 105 Hutt V. Chicago— 132 111. 352; 23 N. E. 1010 346, 456, 457 Hyde Park v. Borden— 94 111. 26 364, 529, 535 Hyde Park v. Carton— 132 111. 100; 23 N. E. 590 339, 367, 456 Hyde Park v. Dunham— 85 111. 569 636, 640 Hyde Park v. Spencer — 118 111. 446 ; 8 N. E.. 846 367, 379 Hyman v. Chicago — 188 111. 462; 59 N. E. 10 360, 544 Hynes v. Chicago— 175 111. 56; 51 N. E. 705 347, 363 111. Cent. R. Co. v. Bloomington — 76 111. 447 383 111. Cent. E. Co. v. Chicago— 138 111. 453; 28 N. E. 740 797 111. Cent. E. Co. v. Chicago — 141 111. 509; 30 N. E. 1036.. 188, 628, 639 111. Cent. E. Co. v. Decatur— 126 111. 92; 1 L. R. A. 613; 18 N. E. 315 241, 264 111. Cent. R. Co. v. Decatur— 154 111. 173; 45 Am. St. Rep. 124; 38 N. E. 626 207, 264, 326, 394 111. Cent. R. E. Co. v. Decatur— 147 U. S. 190; 37 L. ed. 132; 13 Sup. Ct. Rep. 293 8, 24, 202, 253 111. Cent. E. Co. v. Effingham— 172 111. 607 ; 50 N. E. 103 347, 374, 498 111. Cent. R. Co. v. Kankakee— 164 111. 608; 45 N. E. 971 240 111. Cent. E. Co. v. Mattoon— 141 111. 32; 30 N. E. 773 241, 264 111. Cent. E. Co. v. People— 161 111. 244; 43 N. E. 1107 653 TABLE OF CASES. (The references are to sections.) xlv 111. Cent. R. Co. v. People— 170 111. 224; 48 N. E. 215 241, 323, 350, 521, 597, 653 Independence v. Gates— 110 Mo. 374; 19 S. W. 728 40, 158, 530 Indianapolis v. Holt— 155 Ind. 222; 57 N. B. 966, 988, 1100.... 96, 168, 474, 705 Indianapolis v. Mansur — 15 Ind. 112 65, 211 Indianapolis, etc,. R. Co. v. Capitol Pay. Co. — 24 Ind. App. 114; 54 N. E. 1076 149 Ingraham, In re— 64 N. Y. 311 583 Iowa, etc., Land Co. v. Soper — 39 Iowa, 112 ■ 810 Iowa Pipe & Tile Co. v. Callanan— 125 Iowa 358; 67 L. R. A. 408; 106 Am. St. Rep. 311; 101 N. W. 141 3, 50, 104, 190, 656, 658, 790 Irrigation Dist. v. Collins— 64 N. W. 1086; 46 Neb. 411 74, 94, 226 Irwin V. Devars — 65 Mo. 625 679 Irwin V. Mobile — 57 Ala. 6 56 Ittner v. Robinson— 35 Neb. 133; 52 N. W. 846 24, 26 Ivanhoe v. Enterprise— 29 Ore. 245; 35 L. R. A. 58; 45 Pac. 771 . . 654 Iverslie y. Spaulding — 32 Wis. 394 552 Ives V. Irey— 51 Neb. 136; 70 N. W. 961 330, 595, 788, 793 J. Jackson v. Smith— 120 Ind. 520; 22 N. E. 431 550, 620, 791 Jacksonville v. Hamill— 178 111. 235; 52 N. E. 949 649 Jacksonville R. Co. v. Jacksonville— 114 111. 562; 2 N. E. 478 330, 358, 380, 508 J. & S. E. R. Co. V. Walsb— 106 111. 253 645 Jacobs V. Chicago— 178 111. 560; 53 N. B. 363 374, 375 Jaeger v. Burr— 36 Ohio St. 164 169, 474 Janesville v. M. & W. R. Co.— 7 Wis. 484 142, 425, 555 Jefferson City v. Whipple— 71 Mo. 519 698 Jefferson Co. v. Mt. Vernon— 145 111. 807; 33 N. E. 1091 335, 612 Jeffries v. Cash— 207 III. 405; 69 N. E. 904 381 Jelliff V. Newark— 48 N. J. L. 101; 2 Atl. 627 132 Jenks V. Chicago — 48 111. 296 496, 549 Jennings v. Le Breton— 80 Cal. 8; 21 Pac. 1127 167, 470 Jerome v. Chicago— 62 111. 285 725 Jersey City v. Howeth— 30 N. J. L. 521; 31 N. J. L. 547 169, 475 Jewell v. Superior— 135 Fed. 19; 67 C. C. A. 623 698 Jex v. Mayor— 103 N. Y. 536; 9 N. E. 39 271, 766 Job V. Alton— 189 111. 256; 82 Am. St. Rep. 448; 59 N. E. 622. .. . 91, 168, 339, 597 Job v. People— 193 111. 609; 61 N. B. 1079 213 John V. Connell— 61 Neb. 267; 85 N. W. 82 625 John V. Connell— 64 Neb. 233; 89 N. W. 806.. 169, 320, 434, 473, 499 John V. Connell (Neb.)— 98 N. W. 457 499, 583 Johnson, In re— 103 N. Y. 260; 8 N. E. 399 501 Johnson v. Board of Commissioners — 107 Ind. 15; 8 N. E. 1 811 Johnson v. Dist, of Col.— 6 Maekey 21 135, 251, 698 Johnson v. Duer— 115 Mo. 366; 21 S. W. 800 177, 588, 590, 669, 726, 791 Johnson v. Hahn— 4 Neb. 139 776 Johnson v. Indianapolis — 16 Ind. 227 673 Johnson v. Lewis— 115 Ind. 490; 18 N. B. 70 118, 294 Johnson v. Milwaukee— 40 Wis. 315 84, 201, 229, 496, 501, 505, 516, 608, 801 xlvi TABLE OF CASES. (The references are to sections.) Johnson v. Milwaukee— 88 Wis. 383; 60 N. W. 270 225, 808 Johnson v. Oshkosh — 21 Wis. 186 136, 295, 680 -Johnson v. People— 177 111. 64 ; 52 N. B. 308 392 Johnson v. People— 189 111. 83; 59 N. E. 515 359, 613 Johnson v. People— 202 111. 306; 66 N. E. 1081 836, 839 Johnson v. Tacoma (Wash.) — 82 Pac. 1092 450 Jonas V. Cincinnati — 18 Ohio St. 318 228 Jones V. Bangor— 144 Pa. St. 638; 23 Atl. 252 634 Jones V. Boston— 104 Mass. 461 119, 192, 208, 434, 714, 745 .Jones V. Chicago— 206 111. 374; 69 N. E. 64 450, 466, 549 Jones V. Dist. of Col.— 3 App. D. C. 26 167 Jones V. Lake View— 151 III. 663; 38 N. E. 688 205, 611 Jones V. Portland— 35 Ore. 512; 58 Pac. 657 648, 661,. 664 Jones V. Seattle— 19 Wash. 669; 53 Pac. 1105...' 247, 299, 305 Jones V. Seattle— 23 Wash. 757 ; 63 Pac. 553 640 Jones V. Third fcichool Dist.— 3 Cush. 567 769 Jones V. Tonawanda— 158 N. Y. 438; 53 N. E. 280 211, 277, 295, 821, 826 Jones V. Water Commissioners — 34 Mich. 273 222 Joplin, etc. Co. v. Joplin— 124 Mo. 129; 27 S. W. 406 299 Jordan v. Mayor, etc.- 187 Mass. 290; 72 N. E. 1022 820 Jorgenson v. Superior— 111 Wis. 561; 87 N. W. 565 142, 562, 625, 729, 751 Joy V. People— 193 111. 609; 61 N. E. 1079 596 Joyce V. Barron— 67 Ohio St. 264; 65 N. E. 1001 296, 809 Joyes V. Shadburn— 11 Ky. L. Rep. 892; 13 S. W. 361 168 Junction R. Co. v. Philadelphia— 88 Pa. St. 424 242 K. Kaderley v. Portland— 44 Ore. 118; 74 Pac. 710; 75 Pac. 222.. 77, 829 Kahn v. Board— 79 Cal. 388; 21 Pac. 849; 25 Pac. 403 270 Kalamazoo v. Francoise— 115 Mich. 554; 73 N. W. 801.. 168, 471, 474 Kankakee v. Potter— 119 111. 324; 10 N. E. 212 336, 337, 378, 379 Kankakee Stone & Lime Co. v. Kankakee— 128 111. 173; 20 N. E. 670 449, 450 Kankakee, etc. Co. v. Kankakee — 128 111. 173 ; 20 N. E. 720 640 Kansas City v. Bacon— 147 Mo. 259; 48 S. W. 860 218, 466, 508 Kansas City v. Bacon— 157 Mo. 450; 57 S. W. 1045 169, 454, 525 Kansas City v. Baird— 98 Mo. 215; 11 S. W. 243, 562 287, 442, 525 Kansas City v. Block— 175 Mo. 433; 74 S. W. 993 311 Kansas City v. Cullinan — 65 Kan. 68 ; 68 Pac. 1099 274 Kansas City v. Duncan— 135 Mo. 571; 37 S. W. 573 390 Kansas City v. Gibson— 66 Kan. 501; 72 Pac. 222 510 Kansas City v. Hanson — 60 Kan. 833; 58 Pac. 474 413 Kansas City Grading Co. v. Holden— 107 Mo. 305; 17 S. W. 798 442, 746 Kansas City v. Huling — 87 Mo. 203 350 Kansas City v. Kimball — 60 Kan. 224; 56 Pac. 78 509 Kansas City v. Morton — 117 Mo. 446; 23 S. W. 127 436, 638 Kansas City v. Mulkey— 176 Mo. 229; 75 S. W. 973 431 Kansas City v. O'Connor — 82 Mo. App. 655 227 K. C. P. & G. R. Co. V. Waterworks Imp. Dist. — 68 Ark. 376 • 59 S W. 248 240, 682 Kansas City v. Smiley — 61 Kan. 718 778 Kansas City v. Swope — 79 Mo. 446 589 Kansas City v. Ward— 134 Mo. 172; 35 S. W. 600 195, 218, 305 TABLE OF CASES. (The references are to sections.) xlvii Kay V. Penn. R. Co.— 65 Pa. St. 277; 3 Am. Eep. 628 821, 827 Kearney v. Chicago— 163 111. 293; 45 N. E. 224 390 Kearney v. Covington— 1 Met. (Ky.) 339 661 Keasy v. Louisville — 4 Dana 154; 29 Am. Dec. 395 124, 659 Keating v. Kansas City-r-84 Mo. 415 658, 666 Keeler v. People— 160 III. 179; 43 N. E. 342 392 Keenan v. Portland— 27 Ore. 544 ; 32 Pac. 2 691 Keese v. Denver— 10 Colo. 112; 15 Pac. 825.. 29, 60, 135, 167, 270, 796 Keeler v. People— 16J 111. 179; 43 N. E. 342 748 Kelly v. Chadwick— 104 La. Ann. 719; 29 So. 295 129, 168, 365, 427 Kelly V. Chicago— 148 111. 90; 35 N. E. 752 188, 621, 649 Kelly V. Cleveland— 34 Ohio St. 468 371, 500, 608 Kelly v. Minneapolis — 57 Minn. 294; 26 L. E. A. 92; 47 Am. St. Eep. 605; 59 N. W. 304 104,793 Kelly v. Mendelsohn— 105 La. 490; 29 So. 894 652,675 Kelso v. Cole— 121 Cal. 121; 53 Pac. 353 135 Keigwin v. Drainage Com'rs— 115 111. 347 ; 5 N. E. 575 753, 775 Keith v. Bingham— 100 Mo. 300; 13 S. W. 683.... 39, 116, 158, 697 Keith V. Boston — 120 Mass. 108 550 Keith v. Philadelphia— 126 Pa. St. 575; 17 Atl. 883.... 170, 478, 551 Kelly V. Pittsburgh— 104 U. S. 78; 26 L. ed. 658 103 Kelsey v. King— 32 Barb. 410 225 Kemper v. King — 11 Mo. App. 116 214 Kemper v. Louisville — 14 Bush 87 659 Kennard v. Louisiana — 92 U. S. 480; 23 L. ed. 478 93 Kendall, In re— 85 N. Y. 302 130, 488 Kendig v. Knight — 60 Iowa 29 ; 14 N. W. 78 338, 534 Kennedy v. State— 109 Ind. 236 ; 9 N. E. 778 678 Kenny v. Kelly— 113 Cal. 364 ; 45 Pac. 699 755 Kennedy v. Troy— 77 N. Y. 493 740 Kepple V. Keokuk— 61 Iowa 653; 17 N. W. 140 331 Kerfoot v. Chicago— 195 111. 229 ; 63 N. E. 101 505 Kerr v. Waseca- 88 Minn. 191 ; 92 N. W. 932 787 Kerr v. South Park Com'rs— 117 U. S. 379; 29 L. ed. 924; 6 Supp. Ct. Eep. 801 218 Kersten v. Milwaukee— 106 Wis. 200; 48 L. E. A. 851; 81 N. W. 948, 1103 167, 171, 175, 271, 473, 480, 608, 711, 751, 805 Kettle Eiver Quarries Co. v. E. Grand Forks (Minn.) — 104 N. W. 1077 427 Keyes v. Neodesha— 64 Kan. 681 ; 68 Pac. 625 729 Kiernan, In re— 62. N. Y. 457 279 Kilby V. Shaw— 19 Pa. St. 258 230 Kiley v. Cranor — 54 Mo. 54 678 Kiley v. Forsee— 57 Mo. 390 380 Kiley v. St. Joseph— 67 Mo. 491 658, 654 Kilgallen v. Chicago- 206 111. 557 ; 69 N. E. 586 504 Kilgour V. Drainage Com'rs— 111 111. 342 640, 793 Kilgus V. Church Home, etc.— 94 Ky. 439 ; 22 S. W. 750 262 Kilgus V. Trustees, etc.— 94 Ky. 439; 22 S. W. 750 262 Kilmer v. People— 106 111. 529 617 Kimble v. Peoria— 140 111. 157 ; 29 N. E. 723 364, 441 Kimball v. Koehersperger— 160 111. 653; 43 N. E. 710 618 Kimball v. Trust Co.— 89 111. 611 774 King V. Duryea — 45 N. J. L. 258 525 King V. Portland— 2 Ore. 146 21, 23, 77, 122, 170 King V. Portland— 38 Ore. 402; 55 L. R. A. 812; 63 Pac. 2.. 103, 112, 114, 122, 170, 199, 293, 301, 472 xlviii TABLE OP CASES. (The references are to sections.) King V. Portland— 184 U. S. 61; 46 L. ed. 431; 22 Sup. Ct. Eep. 290 96, 103 Kingman, Petitioner— 170 Mass. Ill ; 48 N. E. 1075 577 Kirby v. Waterman— 17 S. Dak. 314; 96 N. W. 129 736 Kirehman v. People— 159 111. 321; 42 N. B. 883 618, 620 Kirkendall v. Omaha— 39 Neb. 1; 57 N. W. 752 627, 637 Kirkland v. Board, etc.— 142 Ind. 123; 41 N. E. 374 168, 224, 225, 277, 327 Kirkpatriek v. Commissioners — 42 N. J. L. 510 742 Kirkpatrick v. Taylor— 118 Ind. 329; 21 N. E. 20 742 Kittinger v. Buffalo— 148 N. Y. 332; 42 N. E. 803 603 Klein v. Nugent Gravel Co.— 162 Ind. 509; 70 N. E. 801 517, 524 Kline v. Commissioners— 152 Ind. 321; 51 N. E. 476. .215, 831, 832, 837 Kline v. Tacoma— 11 Wash. 193; 39 Pac. 453 290, 621 Klingman et al.. Petitioners— 153 Mass. 566; 12 L. R. A. 417; 27 N. E. 778 141 Knapp V. Brooklyn— 97 N. Y. 520 786 Knapp V. Heller— 32 Wis. 467 788, 789 Kneeland v. Furlong— 20 Wis. 438 408 Kneeland v. Milwaukee — 18 Wis. 411 138, 500, 585 Kniper v. Louisville — 7 Bush 599 140 Koehler v. Dobberpuhl- 56 Wis. 480; 14 N. W. 644 814 Koeffler v. Milwaukee— 85 Wis. 397 ; 55 N. W. 400 804 Kokomo V. Mahon— 100 Ind. 242 131 KoUer v. La Crosse— 106 Wis. 369; 82 N. W. 341 458, 468 Kurtz V. Gardner— 18 Wash. 332; 51 Pac. 397 704 Kuehner v. Freepor1^143 111. 92; 17 L. R. A. 774 236, 240, 460 Kuester v. Chicago— 187 111. 21; 58 N. E. 307 375, 383 Kuhns V. Omaha— 55 Neb. 183; 75 N. W. 562 502 Kunst V. Kochesperger— 173 111. 79; 50 N. E. 168 614 Kunst V. People— 173 111. 79; 50 N. E. 168 349 Krumberg v. Cincinnati — 29 Ohio St. 69 570 Kyle V. Malin— 8 Ind. 34 134 L. Laakman v. Pritchard — 160 Ind. 24; 66 N. E. 153 707 Labs V. Cooper— 107 Cal. 656; 40 Pac. 1042 521, 707 Ladd V. Portland— 32 Ore. 271; 67 Am. St. Rep. 526; 51 Pac. 654. . 132 Lafayette v. Cummings — 3 La. Ann. 673 68 Lafayette v. Fowler— 34 Ind. 140 132, 211, 727 Lafayette v. Jenners — 10 Ind. 70 66 Laflin v. Chicago — 48 111. 449 820, 824 Lake v. Decatur — 91 111. 596 380, 485, 517 L. S. & M. S. R. Co. V. Grand Rapids— 102 Mich. 374; 29 L. R. A. 195; 60 N. W. 767 265, 690 Lake St. El. R. Co. v. Chicago— 183 111. 75; 47 L. R. A. 624; 55 N. E. 721 236,338 Lamar W. &. E. L. Co. v. Lamar— 128 Mo. 188; 32 L. R. A. 157; 26 S. W. 1025; 31 S. W. 756 20 Lampher v. Chicago — 212 111. 440; 72 N. E. 426 377 Lands in Flatbush, In re— 60 N. Y. 398 217, 232 Lane v. Bommelmann — 21 111. 143 687 Lane Co. v. Oregon — 7 Wall. 71; 19 L. ed. 101 .. 677 Lansing v. Lincoln — 32 Neb. 457 ; 49 N. W. 640 195, 250 Larned v. Chicago — 34 111. 203 ; 369 Larson v. Chicago— 172 111. 298; 50 N. E. 179 493 TABLE OF CASES. xlxix (The references are to sections.) Larson v. People — 170 111. 93 ; 48 N. E. 443 494 Lasbury v. McClague — 56 Neb. 220; 76 N. W. 862 737, 786, 796 Latham v. Wilmette— 168 111. 153; 48 N. E. 311. .355, 358, 412, 450, 489 Latbrop v. Racine— 119 Wis. 461; 97 N. W. 192 3, 202, 209 Law V. Johnston — 118 Ind. 261; 20 N. B. 745 103 Law V. People— 87 111. 385 333 Lawrence v. Chicago — 48 111. 292 489 Lawrence v. Fast— 20 111. 340; 71 Am. Dec. 274 557, 687 Lawrence v. Killam — 11 Kan. 499 175, 427, 519, 598, 793 Lawrence v. People — 188 111. 407 ; 58 N. B. 991 697 Lawrence v. Webster — 167 Mass. 513; 46 N. B. 123 230, 300 Leacb v. Cargiil— 60 Mo. 316 696 Leake v. Orphans' Home— 92 N. Y. 116 734 Leake v. Philadelphia— 171 Pa. St. 125; 32 Atl. 1110 801 Leavenworth v. Jonas — 69 Kan. 857; 77 Pac. 273 509, 510 Leavenworth v. Laing — 6 Kan. 274 689, 719, 721 Leavenworth v. Mills — 6 Kan. 238 660,661 Leavenworth v. Norton — 1 Kan. 432 139 Leavenworth v. Rankin — 2 Kan. 357 133 Leavitt v. Bell— 55 Neb. 57; 75 N. W. 524 271, 300, 308, 317 Lebanon v. O. & M. E. Co.— 77 111. 539 774 L«e V. Mellette— 15 S. Dak. 586; 90 N. W. 855 138, 774 Lee V. Ruggles— 62 111. 427 64, 187, 593, 778, 782 Leeds, In re— 53 N. Y. 400 416 Leeds v. Defrees— 157 Ind. 392; 61 N. E. 930 96, 178, 655 Leeper v. Texas— 139 U. S. 462; 35 L. ed. 225; 11 Sup. Ct. Rep. 579 94 Lefevre v. Detroit— 2 Mich. 586 260, 405 Leggett V. Detroit— 137 Mich. 247; 100 N. W. 566 257 Lehmer v. People— 80 111. 601 555, 609, 622 Lehmers v. Chicago— 178 111. 530; 53 N. E. 394 357, 360 Leitch V. La Grange— 138 111. 291; 27 N. E. 917 226, 713 Leitsch v. People— 183 111. 569; 56 N. B. 127 285 Leman v. Lake View— 131 111. 388; 23 N. B. 346 247, 521, 529 Le Moyne v. Chicago— 175 111. 356; 51 N. E. 718 516 Le Moyne v. W. Chi. Park Com'rs— 116 111. 41; 4 N. E. 498; 6 N. B. 48 323 Lent V. Tillson— 72 Cal. 404; 14 Pac. 71 100, 118, 129, 319, 722 Lent V. Tillson— 140 U. S. 316; 35 L. ed. 419; 11 Supp. Ct. Rep. 825 210 Leopold V. Chicago— 150 111. 568; 37 N. E. 892 458, 604, 605 Leslie v. St. Louis— 47 Mo. 474 671,804 Levee District v. Huber — 57 Cal. 41 524 Levy V. Chicago— 113 111. 650 335, 347 Levy V. Wilcox— 96 Wis. 127; 70 N. W. 1109 508, 509 Lewis V. Albertson— 23 Ind. App. 147; 53 N. E. 1071 717, 721 Lewis V. Eastford— 44 Conn. 477 810 Lewis V. Seattle— 5 Wash. 741; 32 Pac. 794 110, 518 Lewis V. Seattle— 28 Wash. 639; 69 Pac. 39 618, 620, 830, 833 Lewis V. Symmes— 61 Ohio St. 471; 76 Ann. St. Rep. 428; 56 N. E. 194 802 Lewis V. Waterworks Co.— 19 Colo. 236; 41 Am. St. Rep. 248; 34 Pac. 993 331 Lexington v. Headley — 5 Bush 508 333 Lexington v. McQuillan's Heirs — 9 Dana 513; 35 Am. Dec. 159.. 68, 108, 175 TABLE OF CASES. (The references are to sections.) Liebermann v. Milwaukee— 89 Wis. 336; 61 N. W. 1112 134, 138, 166, 286, 455, 480, 516, 563, 564, 711, 751 Liebman v. San Francisco — 24 Fed. 706 274 Lien v. Commissioners— 80 Minn. 58; 82 N. W. 1094 32 Ligare v. Chicago— 139 111. 46; 32 Am. St. Rep. 179; 28 N. B. 934. . 155 Ligare v. Chicago— 157 111. 637 ; 41 N. E. 1021 516 Lightner v. Peoria— 150 111. 80; 37 N. E. 69. .15, 150, 163, 189, 241, 597 Lima, In re— 71 N. Y. 170 702 Lima v. Cemetery Ass'n— 42 Ohio St. 128; 51 Am. Rep. 809 11, 133, 255, 259, 676 Lincoln v. Lincoln St. E. Co.— 67 Neb. 469; 93 N. W. 766. . . .574, 700 Lincoln v. Street Com'rs— 176 Mass. 210; 57 N. E. 350 606, 745 Lincoln St. R. Co. v. Lincoln— 61 Neb. 109; 84 N. W. 802 137, 574, 712 Linck V. Litchfield— 141 111. 469; 31 N. B. 123 554, 556, 557 Lindsay v. Chicago— 115 111. 120; 3 N. B. 443 330, 381 Lingle v. Chicago— 172 111. 170; 50 N. B. 192 320 Lipp V. Philadelphia— 38 Pa. St. 503 502 Litchfield v. Vernon— 41 N. Y. 123 128, 157, 207, 209, 657 Little, In re— 60 N. Y. 343 314 Little V. Portland— 26 Ore. 235; 37 Pac. 911 427, 661, 664, 761 Little Rock v. Board of Improvement — 42 Ark. 152 129, 683 Little Rock v. Katzensteiu— 52 Ark. 107; 12 S. W. 198 162 Livingstone, In re— 121 N. Y. 94; 24 N. E. 290 786 Livingston v. Livingston — 6 Johns. Ch. 497 ; 10 Am. Dec. 353 .... 776 Livingston v. New York— 8 Wend. 86; 22 Am. Dec. 622 197, 207 Loan Association v. Topeka — 20 Wall. 655 ; 22 L. ed. 455 149 Lockwood V. St. Louis — 24 Mo. 20 7, 262 Lodernier v. Aspinwall — 43 111. 401 518 Loeb V. Trustees— 179 U. S. 472; 45 L. ed. 280; 21 Sup. Ct. Rep. 174; 91 Fed. 37 170, 202, 473 Lombard v. Antioeh College— 60 Wis. 459 ; 19 N. W. 367 793 Lombard v. Park Commissioners— 181 U. S. 33; 45 L. ed. 731; 21 Sup. Ct. Rep. 507 143, 657 Long Branch Commission v. Dobbins — 59 N. J. L. 146; 36 Atl. 482 615 Long Branch Commission v. Dobbins — 61 N. J. L. 659; 40 Atl. 599 169, 173, 476, 607, 615 Long Island W. S. Co. v. Brooklyn— 166 U. S. 685; 41 L. ed. 1165; 17 Sup. Ct. Rep. 718 96 Longworth v. Cincinnati— 34 Ohio St. 101 501, 502, 503 Lord V. Bayonne— 65 N. J. L. 127; 46 Atl. 701 717 Lott V. Ross— 38 Ala. 156 134 Louisiana v. Miller — 66 Mo. 467 360, 654 Louisville V. Bitzer— 115 Ky. 359; 61 L. R. A. 434; 73 8. W. 1115 462 Louisville v. Clark— 105 Ky. 392; 49 S. W. 18 415 Louisville v. Henderson — 5 Bush 515 413, 659, 662 Louisville v. Hexagon Tile Co.— 103 Ky. 552; 45 S. W. 667 657, 658, 659 Louisville v. Hyatt— 5 B. Mon. 199 660 Louisville v. Leatherman— 99 Ky. 213; 35 8. W. 625 234, 661, 664 Louisville v. Louisville R. M. Co. — 3 Bush 416; 96 Am. Dec. 243 125, 627, 628, 801 Louisville v. Lyon (Ky.) — ^Mss. Op. Dec. 19, 1856 123 Louisville v. Nevin— 10 Bush 549; 19 Am. Rep. 78 258, 430, 691 Louisville v. Savings Bank— 104 U. S. 469 ; 26 L. ed. 775 535 Louisville v. Selvage— 106 Ky. 730; 51 S. W. 447; 52 S. W. 809 383, 469 TABLE OF CASES. (The references are to sections.) li L. & N. E. R. Co. V. Barber A. Pav. Co.— 197 U. S. 430; 49 L. ed. 819; 25 Sup. Ct. Rep. 466 88, 91, 98, 240, 267, 450 L. & N. R. Co. V. E. St. Louis— 134 111. 656; 25 N. E. 962 152, 153, 216, 233, 241, 342, 522, 523, 534 li. N. A. & E. Co. V. State— 122 Ind. 443; 24 N. E. 350 242, 655 Louisville Steam Forge Co. v. Mehler- 112 Ky. 438; 23 Ky. L. R. 1335; 64 S. W. 396 210 Love V. Howard — 6 R. I. 116 255 Lovell V. Sny Id. Drainage Dist.— 159 111. 188; 42 N. E. 600.. 532, 615 Lovell V. St. Paul— 10 Minn. 290; Gil. 229 656, 658 Low V. Galena & C. U. R. Co.— 18 111. 324 488 Lowden, In re— 69 N. Y. 548 501 Lowe V. Omaha— 33 Neb. SST; 50 N. W. 760 637 L. S. & M. S. R. Co. V. Chicago— 56 111. 454 353 L. S. & M. S. R. Co. V. Chicago— 144 111. 391; 33 N. E. 602.. 378, 407 L. S. & M. S. R. Co. V. Chicago- 148 111. 509 ; 37 N. E. 88 640^ Ludlow V. Cin. S. R. Co.— 78 Ky. 358 241, 264 Lufkiu V. Galveston— 56 Tex. 522; 58 Tex. 545 214, 263, 542 Lumberman's Ins. Co. v. St. Paul— 85 Minn. 234; 88 N. W. 749.. 541 Lumsden v. Cross— 10 Wis. 282 84, 85, 125, 209, 547 Lumsden v. Milwaukee— 8 Wis. 485 105, 121, 513, 801 Lundberg v. Chicago— 183 111. 572; 56 N. E. 415 365, 374 Lundborn v. Manistee— 93 Mich. 170; 53 N. W. 161 722 Luscombe v. Milwaukee— 36 Wis. 511 631 Lusk V. Chicago— 176 111. 207; 52 N. E. 54 335, 375 Lusk V. Chicago— 211 111. 183; 71 N. E. 878 820, 836, 839 Lutman v. L. S. & M. S. R. Co.— 56 Ohio St. 433; 47 N. E. 248.. 784 Lux & L. Stone Co. v. Donaldson- 162 Ind. 481; 68 N. E. 1014 726 Lyman v. Chicago— 211 III. 209; 71 N. E. 832 280, 758, 787, 788 Lyman v. Gage— 211 111. 209; 71 N. E. 832 617 Lyman v. Plummer— 75 Iowa 353; 39 N. W. 527 312 Lyon V. Alley— 130 U. S. 177; 32 L. ed. 899; 9 Sup. a. Rep. 480 387 819 Lyon V. Tonawanda— 98 Fed. 361 202, 284, 697, 718, 727, 732,' 802 M. Mac Murray, etc. Co. v. St. Louis— 138 Mo. 608; 39 S. W. 467... 777 Macon v. Patty— 57 Miss. 378 ; 34 Am. Rep. 451 10, 31, 74, 107, 154, 159, 207, 210, 227, 229, 683 783, 784 Macon v. Wing— 113 Ga. 90; 38 S. E. 392 760 Maddox v. Newpor1^12 Ky. L. Rep. 657 ; 14 S. W. 957 67 Madera Ir. Dist.— 92 Cal. 296; 14 L. R. A. 755; 27 Am. St. Rep. 106; 28 Pac. 272, 675 104,123,124,226 Magee v. Commonwealth— 46 Pa. St. 358 170, 511, 567 Maher v. Chicago— 38 111. 266 668 Mahoney v. Braverman — 54 Cal. 565 421 M. & H. R. Co. V. Artcher— 6 Paige 88 776 M. & M. Land Co. v. Billings— 50 C. C. A. 70; 111 Fed. 972.. 161, 225 Makemson v. Kaufman— 35 Ohio St. 444 272, 273, 284, 795, 802 Maloy V. Marietta— 11 Ohio St. 636 77, 169 Manhattan, R. R. Co., In re— 102 N. Y. 301; 6 N. E. 590 423, 425 Manice v. Mayor — 8 N". Y. 120 661 Manley v. Emlan— 46 Kan. 655; 27 Pac. 844 811, 812, 820 Manning v. Den — 90 Cal. 610; 27 Pac. 435 655 Mansfield v. People— 164 111. 611; 45 N. E. 976 360, 376 Marion v. Epler— 5 Ohio St. 250 38, 77, 199 lii TABLE OP CASES. (The references are to sections.) Markham v. Anamosa— 122 Iowa 689; 98 N. W. 493.. 629 Markley v. Chicago— 167 111. 626; 48 N. E. 1056 711 Markley v. Chicago— 170 111. 358; 48 N. E. 952 493, 616 Markley v. Chicago— 189 111. 276 337, 820, 836, 839 Markley v. Chicago— 190 111. 276; 60 N. E. 512 350,824 Markley v. Peopl&— 171 111. 260; 63 Am. St. Eep. 234; 49 N. E. 502 371 Markle v. Philadelphia— 163 Pa. St. 344; 30 Atl. 149 645 Marsh v. Chicago— 62 111. 115 322 Marsh v. Supervisors — 42 Wis. 502 496 Marshall v. People— 219 111. 99; 76 N. E. 70 622 Marshall v. Barber A. P. Co. (Ky)— 66 S. W. 182 177 Marshall v. Barber A. P. Co. (Ky.)— 23 Ky. L. Rep. 1971; 66 S. W. 734 168 MarshaU v. Gridley-^6 111. 247 549 Marshall v. Milford— 214 111. 388; 73 N. B. 742 485 Marshalltown, L. H. P. & R. Co. v. Marshalltown— 127 Iowa 637; 103 N. W. 1005 240, 724, 748 Martin v. Oskaloosa (la.)— 99 N. W. 557 120, 331, 370, 822, 829 Martin v. Oskaloosa (la.)— 126 Iowa 680; 102 N. W. 529 823, 834 Martin y. Roney-^1 Ohio St. 141 391 Martin v. Wills— 157 Ind. 153 ; 60 N. E. 1021 168, 172 Mason v. Chicago— 178 111. 499; 53 N". E. 354 243 Mason v. Sioux Falls— 2 S. D. 640; 29 Am. St. Rep. 802; 51 N. W. 770 136, 290, 299 Mason v. Spencer— 35 Kan. 512; 11 Pac. 402 179, 812 Massing v. Ames — 37 Wis. 645 500 Masters v. Portland— 24 Oreg. 161; 33 Pac. 540 77, 524, 579 Masters v. Scroggs— 3 M. & Sel. 447 223 Matter of Deering— 93 N. Y. 361 799 Matter of Dorrance St.— 4 R. I. 230 79, 125, 201 Matter of Eager-^6 N. Y. 100 289, 423, 424, 425, 502 Matter of First Street— 66 Mich. 42; 33 N. W. 15 401 Matter of Klock— 30 App. Div. 24; 51 N. Y. Supp. 897 524 Matter of Market St.^9 Cal. 546 149, 186 Matter of the Mayor, etc. — 11 Johns. 77 260 Matter of opening Rogers Ave. — 29 Abb. N. C. 361; 22 N. Y. Supp. 27 109, 112, 636 Matter of Second Ave. Church— 66 N. Y. 395 133 Matter of Willes— 30 Hun 13 799 Mattingly v. Dist. of Col.— 97 U. S. 687 810 Mattson v. Astoria— 39 Oreg. 577; 87 Am. St. Rep. 687; 65 Pac. 1066 761 May V. Holdridge — ^23 Wis. 93 84, 821 May V. Traphagen— 139 N. Y. 478; 34 N. E. 1064 137, 138, 522 Mayall v. St. Paul— 30 Minn. 294; 15 N". W. 170 560, 803 Mayer v. Mayor— 101 N. Y. 284; 4 N. E. 336 616, 803 Mayo V. Haynie— 50 Cal. 70 287 Mayor, etc., In re — 1 1 Johns. 77 10 Mayor, etc., In re— 178 N. Y. 421 ; 70 N. E. 924 490 Mayor v. Colgate — 12 N. Y. 140 701 Mayor v. Cowen— 88 Md. 447; 71 Am. St. Rep. 433; 41 Atl. 900. . 578 Mayor v. Eschbach— 18 Md. 276 271, 673 Mayor v. Maberry — 6 Humph. 368; 44 Am. Dee. 315 30, 81 Mayor v. O'Callaghan — 41 N. J. L. 349 769, 834 Mayor v. Tiflfany— 68 Hun. 158 ; 22 N. Y. Supp. 604 '440 Mayor, etc. v. Baltimore — 18 Md. 284; 79 Am. Dec. 686 751, 774 TABLE OF CASES. lili (The references are to sections.) Mayor, etc., v. Boyd— 64 Md. 10; 20 Atl. 1028 272, 275 Mays V. Cincinnati — 1 Ohio St. 268 134 Mayor, etc. v. Dargan — 45 Ala. 310 17, 56, 273, 524 Mayor v. Green — 42 N. J. L. 627 769 Mayor, etc. v. Green Mount Cemetery — 7 Md. 517 30, 211, 258 Mayor, etc. v. Hartridge — 8 Ga. 23 134 Mayor, etc. v. Harwood — 32 Md. 471; 3 Am. Eep. 161 144 Mayor, etc. v. Hook— 62 Md. 371 515, 808 Mayor, etc. v. Howard — 6 Harr & J. 383 759 Mayor, etc. v. Hughes Adm'r— 1 Gill & J. 480; 19 Am. Dec. 243 32, 135 Mayor, etc. v. Johns Hopkins' Hospital— 56 Md. 1 . . 155, 191, 297, 380, 436, 783, 785 Mayor, etc. v. Johnson — 62 Md. 225 314, 804 Mayor, etc. v. Klein— 89 Ala. 461 ; 8 L. R. A. 369 ; 7 So. 386 17, 56, 214 Maywood Co. v. Maywood— 140 111. 216; 29 N. E. 704 367, 530, 584 Mayor, etc. v. Moore — 6 Harr & J. 375 191 Mayor, etc. v. Porter — 18 Md. 284; 79 Am. Dec. 686 387, 388, 460, 720, 780 Mayor, etc. v. Eayms— 68 Md. 569; 13 Atl. 383 416, 692 Mayor, etc. v. Royal St. R. Co. — 45 Ala. 322 17, 56, 263 Mayor, etc., v. Scharf— 54 Md. 499 293, 297, 356, 380, 796 Mayor, etc. v. Smith & S. Brick Co.— 80 Md. 458; 31 Atl. 423 465, 748, 759 Mayor, etc. v. Stewart— 92 Md. 535; 5 M. C. C. 59; 48 Atl. 165 168, 356, 357, 396, 403, 475 Mayor, etc. v. Ullman— 79 Md. 469 ; 30 Atl. 43 654, 656, 838 Mayor, etc. v. Weeks — 104 La. 489 ; 29 So. 252 353 Mauch Chunk v. Shortz- 61 Pa. St. 399 698 Mauldin v. Greenville — 42 S. C. 293; 27 L. R. A. 284; 46 Am. St. Rep. 723; 20 S. E. 842 79, 80, 130 Mauldin v. Greenville— 53 S. C. 285; 43 L. R. A. 101; 69 Am. St. Rep. 855; 31 8. E. 252 132 Maxwell v. Chicago— 185 111. 18; 56 N. E. 1101 336 McAllister v. Tacoma — 9 Wash. 272; 37 Pac. 447, 658 415, 608 McAuly V. Chicago— 22 111. 564 433 McBean v. Chandler — 9 Heisk 349 ; 124 Am. Rep. 308 81 McBride v. Chicago— 22 111. 574, 577 139, 324, 785, 793 McCain v. DesMoines (la.)— 103 N. W. 979 417, 418, 562, 775 McCague v. Omaha— 58 Neb. 37; 78 N, W. 463 737, 772 McCartney v. People— 202 111. 51; 66 N. E. 873 508 McCauley v. People— 87 111. 123 610 McChesney v. Chicago— 152 111. 543; 38 N. E. 767 221, 292, 403 McChesney v. Chicago— 159 111. 223; 42 N. E. 894 488 McChesney v. Chicago— 161 111. 110; 43 N. B. 702 610, 616 McChesney v. Chicago— 171 111. 253; 49 N. E. 548 335, 376, 395 McChesney v. Chicago— 173 111. 75; 50 N. E. 191 338, 360, 556 McChesney v. Chicago— 188 111. 423 ; 58 N. E. 982 831 McChesney v. Chicago— 201 111. 344; 66 N. E. 217 312, 505 McChesney v. Chicago— 205 111. 528; 69 N. E. 38 352 McChesney v. Chicago— 205 111. 611 ; 69 N. E. 82 359 McChesney v. Chicago— 213 111. 592 ; 73 N. E. 368 377 McChesney v. Hyde Park— 151 111. 634; 37 N. E. 858 224, 327, 552 McChesney v. People— 99 111. 216 246 McChesney v. People— 145 111. 614; 34 N. E. 431 294, 312, 317, 322, 389, 390 liv TABLE OF CASES. (The references are to sections.) McChesney v. People— 148 111. 221; 35 N. E. 739 137, 312, 493 MeChesney v. People— 171 111. 267; 49 N. E. 491 279, 532 MeChesney v. People— 178 111. 542; 53 N. E. 356 323 MeChesney v. People— 200 111. 146; 65 N. E. 626 406, 410, 411 MeChesney v. People— 205 111. 547; 69 N. E. 80 687 McClellan v. Dist. of Col.— 7 Mackey 94 521, 557 MeComb v. Bell— 2 Minn. 295; Gil. 256 38, 42, 560, 673, 675 MeConville v. St. Paul— 75 Minn. 383; 43 L. R. A. 584; 74 Am. St. Rep. 508; 77 N. W. 993 766 MeCormack v. Patchin— 53 Mo. 33, 36; 14 Am. Rep. 440.. 107, 131, 132 MeCrea v. Leavenworth— 46 Kan. 767 ; 27 Pae. 129 798 MeCuUough v. Campbellsport— 123 Wis. 334; 101 N. W. 709 114 MeCullough V. Maryland— 4 Wheat 316, 428; 4 L. ed. 579, 607. .43, 50 McCuIlough V. Mayor &c.— 23 Wend. 458 757 McDonald v. Conniff— 99 Cal. 386; 34 Pac. 71 289, 501, 518 McDonald v. Littlefield— 5 Mack 574 293 McDonald v. Mezes— 107 Cal. 492; 40 Pac. 808 423, 425, 426 McDonald v. People— 204 111. 499 ; 68 N. E. 379 376, 561, 596 McDonald v. People— 206 111. 624 ; 69 N. E. 509 732 McDonald v. Poole— 113 Cal. 437 ; 45 Pac. 702 405 McDonnell v. Gillon— 134 Cal. 329; 66 Pac. 314 390, 421 McFarlane v. Chicago— 185 111. 242; 57 N. E. 12. .216, 339, 341, 516, 517 McEmery v. Sullivan— 125 Ind. 407; 25 N. E. 540 278, 293, 807 McEwan v. Spokane— 16 Wash. 212; 47 Pac. 433 662 McGehee v. Mathis— 21 Ark. 40 17, 170 McGehee v. Mathis^ Wall. 143 57 McGettigan v. Potts— 149 Pa. St. 159 ; 24 Atl. 198 628 McGhee v. Commissioners — 84 Minn. 472 ; 88 N. W. 6 32 McGonigle v. Allegheny — 44 Pa. St. 118 170, 210 McGonigle v. Arthur— 27 Ohio St. 251 215 McGrew v. Kansas City— 64 Kan. 61 ; 67 Pac. 438 253 McGrew v. Stewart— 51 Kan. 185 ; 32 Pac. 896 514 McGuire v. Brockman — 58 Mo. App. 307 42 Mclnerny v. Reed— 23 la. 410 689, 703,707 McKee v. Pendleton— 154 Ind. 652; 57 N. E. 532 783 McKeesport v. Fidler— 147 Pa. 532 ; 23 Atl. 799 11, 15 McKeesport v. Soles— 165 Pa. St. 628; 30 Atl. 1019 170, 473 McKnight v. Pittsburg— 91 Pa. St. 273 720 McKusick V. Stillwater — 44 Minn. 372 ; 46 N. W. 769 36, 753 McLaughlin v. Chicago— 198 111. 518; 64 N. E. 1036 350 McLaughlin v. Miller — 124 N. Y. 510; 26 N. E. 1104 100, 124, 764 McLaughlin v. Municipality No. Two — 5 La. Ann. 504 137, 636 McLauren v. Grand Forks — 6 Dak. 397; 43 N. W. 710 287, 312, 720 McLean Co. v. Bloomington — 106 111. 209 234, 255, 653, 682 McManus v. Hornaday— 99 Iowa 507; 68 N. W. 812 137, 141, 330, 331, 568 McManus v. Hornaday — 124 Iowa 267; 104 Am. St. Rep. 316; 100 N. W. 33 818, 824, 829 McManus v. People— 183 111. 391; 55 N. E. 886 323, 612 McMasters v. Commonwealth — 3 Watts 292 yg' 207 McMillen v. Anderson— 95 U. S. 37; 24 L. ed. 335 " 8* 93 McMillen v. Butte— 30 Mont. 220; 76 Pae. 203 ', 112* 178 McNamee v. Tacoma — 24 Wash. 591 ; 64 Pac. 791 ' 618, 620, 779, 782, 821, 830 McNair v. Ostrander — 1 Wash. 110; 23 Pac. 414 399 McNulty V. California— 149 U. S. 645; 37 L. ed. 882; 13 Sup "ct Rep. 959 ■ 94 TABLE OF CASES. Iv (The references are to sections.) McSherry v. Wood— 102 Cal. 647; 36 Pac. 1010 596, 672 McVeriy v. Boyd— 89 Cal. 304; 26 Pac. 885 211, 421, 547, 723 McVey v. Danville— 188 111. 428; 58 N. E. 955 273, 283, 285 McVicker v. Commissioners— 250 Ohio St. 608 213 Mead, In r-e— 74 N. Y. 216 127 Mead v. Chicago— 186 111. 54; 57 N. B. 824 354, 359, 746 Meadowcraft v. Kochesperger- 170 111. 356; 48 N. E. 987. .791, 792, 806 Meadoweroft v. People— 154 111. 416, 417; 40 N. E. 442.. 343, 617, 619 Medical Lake v. Smith— 7 Wash. 195; 34 Pac. 835 719, 816 Medland v. Connell- 57 Neb. 10 ; 77 N. W. 437 300 Medland v. Linton— 60 Neb. 249; 82 N. W. 866 135, 286, 305, 438, 451, 454, 499 Meggett V. Eau Claire— 81 Wis. 326; 51 N. W. 566 96 170 472 792 798 Meinzer v. Racine— 68 Wis. 241; 32 N. W. 139...'.....' '.....' 631 Meinzer v. Racine— 70 Wis. 561 ; 36 N. W. 260 631, 762 Meinzer v. Racine— 74 Wis. 166; 42 N. W. 230 540 Melrose Park v. Dunnebecke— 210 111. 422; 71 N. E. 431 484, 485 Menges v. Deutler— 33 Pac. 495; 75 Am. Dec. 616 821, 827 Mercer v. Kelly— -20 Oreg. 86 ; 25 Pac. 73, 77 28 Mercy Hospital v. Chicago— 187 111. 404 ; 58 N. E. 353 382 Meredith v. Perth Amboy— 63 N. J. L. 523; 44 Atl. 1101 371 Merriam, In re — 84 N. Y. 596 404, 417, 423, 425, 427, 493, 498, 540, 612 Merriam v. Moody's Ex'rs— 25 Iowa 163 393, 676, 689 Merrick v. Amherst— 12 Allen 500 71, 231 Merrill v. Shields— 57 Neb. 78; 77 N. W. 368 135, 460 Merritt v. Farriss— 22 111. 303 790 Merritt v. Kewanee— 175 111. 537; 51 N. E. 867 270 271 275 276 327 368 Met. Board oi Works v. Vauxhall Bridge Co.— 7 El. & B. 964. . . .' 223 Met. Gas L. Co., In re—S5 N. Y. 526 498 Met. W. S. E. R. Co. v. Stickney— 150 111. 362; 26 L. R. A. 773; 37 N. E. 1098 442, 639 Meyer v. Covington— 103 Ky. 546; 46 S. W. 769 208, 252, 653 Meyer v. Fromm— 108 Ind. 208; 9 N. E. 84 419 Michael v. Mattoon— 172 111. 394; 50 N. E. 155 311, 371 Michel v. Police Jury— 3 La. Ann. 123 765 Michel V. Police Jury— 9 La. Ann. 67 135, 660, 765 Michener v. Philadelphia— 118 Pa. St. 535; 12 Atl. 174 46, 170, 464, 577, 592 Mich. Cent. R. Co. v. Huehn— 59 Fed. 335 288 Middleton v. St. Augustine— 42 Fla. 287; 89 Am. St. Rep. 287; 29 So. 421 818 Millard v. PresbUry— 14 Wall 676; 20 L. ed. 719 131 Millard v. Webster City— 113 la. 220; 84 N. W. 1044 629, 760 Mill Creek Sewer— 196 Pa. St. 183 ; 46 Atl. 312 134 Miller v. Amsterdam— 149 N. Y. 288; 43 N. E. 632.. 271, 388, 392, 728 Miller v. Graham— 17 Ohio St. 1 314, 543 Miller v. Milwaukee— 14 Wis. 699 220, 660 Mills V. Charlton— 29 Wis. 400; 9 Am. Rep. 578.... 791, 821, 825, 830 Mills V. Chicago— 182 111. 249; 54 N. E. 987 375 Mills V. Gleason— 11 Wis. 470; 78 Am. Dee. 721 791 Milwaukee St. R. Co. v. Anderson — 90 Wis. 550 750 Milwaukee, etc., Co. v. Milwaukee— 95 Wis. 42 ; 69 N. W. 796 84 Miner v. Vedder— 66 Mich. 101 ; 33 N. W. 47 713 M TABLE OF CASES. (The references are to sections.) Minnesota Linseed Oil Co. v. Palmer— 20 Minn. 468 ; Gil. 424 133, 180, 193, 778, 781, 803 Minn. & St. Louia R. Co. v. Lindquist— 119 Iowa 144; 93 N. W. 103 172, 178, 190, 580, 691, 752 Minnetonka, etc., Imp. Co., In re — 56 Minn. 513; 45 Am. St. Rep. 494; 58 N. W. 295 133 Minor v. Daspit— 43 La. Ann. 337; 9 So. 49 123, 191 M., K. & T. Trust Co. v. Smart— 51 La. Ann. 416; 25 So. 443 69 Miaervey v. People— 208 111. 646; 70 N. E. 678 599 Missouri v. Lewis— 101 U. S. 22; 25 L. ed. 989 93 Mitchell V. Milwaukee— 18 Wis. 93.... 84, 296, 397, 429, 736, 779, 780 Mitchell V. Peru— 163 Ind. 17; 71 N. E. 132 598, 799 Mix V. Ross— 57 111. 121 21, 135, 652, 689 Moale V. Baltimore— 61 Md. 224, 225 168, 173, 298, 656 Moale V. Mayor, etc.— 5 Md. 314; 61 Am. Dec. 276 191, 192, 207 Moberly v. Hogan— 131 Mo. 19; 32 8. W. 1014 169, 173, 475, 654, 656, 669 Mobile V. Dargan— 45 Atl. 310 170 Mock V. Muncie (Ind.)— 32 N. E. 718 252 Moffitt V. Jordan— 127 Cal. 622; 60 Pac. 173 286 Moll V. Chicago— 194 111. 28, 29; 61 N. E. 1012 311, 375 Monroe County v. Rochester— 154 N. Y. 570, 571; 49 N. E. 139 603, 779, 781, 788, 799, 809 Montgomery Ave. Case — 54 Cal. 579 437 Monticello v. Banks^8 Ark. 251 ; 2 S. W. 852 524 Moody V. Chadwick— 52 La. Ann. 1888 ; 28 So. 361 653 Moore v. Albany— 98 N. Y. 396 762 Moore v. Mattoon— 163 111. 622; 45 N. E. 567 286, 491 Mo. Pac. R. Co. V. Humes— 115 U. S. 519; 29 L. ed. 465; 6 Sup. Ct. Rep. 110 93 Moore v. Mayor— 73 N. Y. 238; 29 Am. Rep. 134 319 Moore v. People— 106 III. 376 594 Morange v. Mix^4 N. Y. 315 702 Moran v. Lindell— 52 Mo. 229 252, 354, 396 Morewood Ave., In re— 159 Pa. St. 20; 28 Atl. 123, 132 201, 211, 249, 252, 490, 821 Morey v. Duluth— 75 Minn. 221; 77 N. W. 829 699, 700 Morgan Pk. v. Gahan— 136 111. 515; 26 N. E. 1089 431 Morgan Park v. Wiswall— 135 111. 262; 40 N. E. 611, 613 25, 134, 152, 221, 649 Morley v. Carpenter — 22 Mo. App. 640 131 Morris v. Chicago— 11 111. 650 501 Morris v. Council BluflFs— 67 Iowa 343 ; 56 Am. Rep. 343 ; 25 N. W. 274 625 Morris & E. R. Co. v. Jersey City— 36 N. J. L. 56 266 Morrison v. Chicago— 142 111. 660; 32 N. E. 172 531, 532 Morrison v. Hershire — 32 Iowa 271 252, 791, 792 Morrison v. St. Paul— 5 Minn. 108; Gil. 83 175 Morse v. Bufifalo— 35 Hun 613 775, 799, 808 Morse v. Omaha— 67 Neb. 426 ; 93 N. W. 734, 739 137, 195, 275, 276, 282, 383, 434, 473, 718 Morse v. West Port— 110 Mo. 502; 19 S. W. 831 339, 413, 566 Moser v. Wuue — 29 Mich. 59 400 Moss v. Fairburg— 66 Neb. 671 ; 92 N. W. 721 293 Mott v. Hubbard— 59 Ohio St. 199 ; 53 N. E. 47 726 Motz V. Detroit— 18 Mich. 495 71, 72, 158, 168, 172, 175, 180, 470, 720 TABLE OF CASES. Ivii (The references are to sections.) Mound City, etc., Co. v. Miller— 170 Mo. 240; 60 L. K. A. 190; 94 Am. St. Eep. 727; 70 S. W. 721 223 Mount Auburn v. Cambridge — 150 Mass. 12; 4 L. R. A. 836; 22 N. E. 66 259 Mt. Carmel v. Friedrich— 141 111. 369; 31 N. E. 21 611 Mount Pleasant v. B. & O. R. Co.— 138 Pa. St. 365; 11 L. R. A. 520; 20 Atl. 1052 208, 240, 464, 594 Mt. Pleasant Cemetery Co. v. Newark— 50 N. J. L. 66; 11 Atl. 147. 259 Mount Vernon, In re—Ul 111. 359; 23 L. R. A. 807; 35 N. E. 533 256, 611, 653, 758 Mudge V. Walker (Ky.)— 92 S. W. 1046 460 Mullen V. Clifford (Ind. App.)— 76 N. E. 1009 700 Mullig;an v. Smith— 59 Cal. 206 270, 274, 277, 281 Municipality No. 2 v. Duncan — 2 La. Ann. 182 68 Municipality No. 2 v. Dunn— 10 La. Ann. 57 131, 211, 212 Municipality No. 2 v. Guillotte— 14 La. Ann. 295 416 Municipality No. 2 v. White— 9 La. Ann. 446... 69, 177, 179, 191, 207 Munn, In re— 165 N. Y. 149; 58 N. E. 881 763 Munson v. Commissioners — 43 La. Ann. 15; 8 So. 906 23, 176, 219 Munson v. Minor — 22 111. 595 793 Munger v. St. Paul— 57 Minn. 9 ; 58 N. W. 601 210, 626 Murdock v. Cincinnati — 39 Fed. 891 293 Murphy v. Chicago— 186 111. 59; 57 N. E. 847 493 Murphy v. Louisville — 9 Bush. 189 426, 429, 430 Murphy v. People— 120 111. 234; 11 N. E. 202 65, 615 Murphey v. Peoria— 119 111. 509; 9 N. B. 895 235, 528, 732 Murphy v. Wilmington— 6 Houst (Del.) 108; 22 Am. St. Rep. 345. 61 Murphy v. Wilmington— 5 Del. Ch. 281 809 Murr V. Naperville— 210 111. 371 ; 71 N. E. 380 486, 487 Murray v. Chicago— 175 111. 340; 51 N. E. 654 371, 832 Murray v. Hoboken L. & I. Co.— 18 How. 272; 15 L. ed. 372 93, 97 Murray v. Tucker— 10 Bush. 240 135, 403, 416, 417 Murtlaud v. Pittsburg— 189 Pa. St. 371; 41 Atl. 1113 703 Muscatine v. C, R. I. & P. R. Co.— 79 Iowa 645; 44 N. W. 909 241, 510, 676, 714, 727 Muscatine v. C, R. I. & P. R. Co.— 88 Iowa 291; 55 N. W. 100.. 250 338 571 Muskego V. Drainage Com'rs— 78 Wis. 40; 47 N. W. 11.. 244^ 321^ 794 Musselman v. Logansport — 29 Ind. 533 811, 820 Mut. Life Ins. Co., In re— 89 N. Y. 530 416 Mut. Life Ins. Co. v. Sage— 41 Hun 535 654 Mut. Life Ins. Co. v. Mayor— 144 N. Y. 494 ; 39 N. E. 386 .. . 765, 767 Myers v. Chicago— 196 111. 591 ; 63 N. E. 1037 339, 340 Myrick v. La Crosse— 17 Wis. 443 500, 791, 800, 804 N. Nashville v. Weiser— 54 111. 245 307 National Bank v. Petterson— 200 111. 215; 65 N. E. 687 710 Naugatuck R. Co. v. Waterbury (Conn.)— 61 Atl. 474... 238, 267, 450 Neenan v. Smith— 50 Mo. 525 168, 175, 477 Neenan v. Smith— 60 Mo. 292 477, 602, 674, 681 Neff V. Bates— 25 Ohio St. 169 337 Nehasane Park Assn. v. Lloyd— 167 N. Y. 431; 60 N. E. 741 736 Neill V. Gates— 152 Mo. 585; 54 S. W. 460 369, 403, 422 Nevada v. Eddy— 123 Mo. 546; 27 S. W. 471 240, 265, 331 J-.Eviu V. Allen— 15 Ky. L. Rep. 836; 26 S. W. 180 263 Iviii TABLE OF CASES. (The references are to sections.) Nevin v. Roach— 86 Ky. 492; 5 S. W. 546 100, 330, 439, 444 Nevins, etc., Co. v. Alkire— 36 Ind. 189 524 Newberry v. Fox— 37 Minn. 141; 5 Am. St. Rep. 830; 33 N. W. 333 133 Mewby v. Platte Co.— 25 Mo. 258 40, 179, 194, 467 Neweomb v. Police Jury — 4 Rob. (La.) 233 765 Newell V. Cincinnati— 45 Ohio St. 407; 15 N. B. 196 591 Newman v. Chicago— 153 111. 469; 38 N. E. 1053.... 189, 209, 441, 521 Newman v. Emporia— 32 Kan. 456; 4 Pac. 815 331, 820, 838, 843 Newman v. Emporia— 41 Kan. 583; 21 Pac. 593 179, 820, 838 Newport v. Ringos Estr'x— 87 Ky. 636; 10 S. W. 2 770 New Albany v. Cook— 29 Ind. 220 190 New Albany v. Sweeney — 13 Ind. 245 425 New Brunswick R. Co. v. Commissioners — 38 N. J. L. 190; 20 Am. Rep. 380 171, 177, 192, 193 New Castle v. Stone Church Graveyard— 172 Pa. St. 86; 33 Atl. 236 259 New England Hospital v. Street Comr's— 188 Mass. 88; 74 N. E. 294 503 New Haven v. Fair Haven & N. R. Co.— 38 Com. 422; 9 Am. Rep. 399 235, 722, 750 New Iberia v. Weeks— 104 La. 489; 29 So. 252 133 N. J. M. R. Co. V. Jersey City— 42 N. J. L. 97 240 N. J. R. & T. Co. V. Elizabeth— 37 N. J. L. 330 240 N. J. S. R. Co. V. Jersey City— 68 N. J. L. 140; 52 Atl. 300. .236, 238 New London v. Miller— 60 Conn. 112; 22 Atl. 499 38, 523 New Orleans v. Dunn — 10 La. Ann. 57 53 New Orleans v. Elliott— 10 La. Ann. 59 69 New Orleans v. Warner— 175 U. S. 120; 44 L. ed. 96; 20 Sup. Ct. Rep. 44 233 New Orleans v. Wire — 20 La. Ann. 500 627 New Whatcom v. Bellingham, etc. Co.— 9 Wash. 639; 38 Pac. 163 175, 539, 618, 803 New Whatcom v. Bellingham, etc. Co.— 16 Wash. 131, 137; 47 Pac. 236, 237 104, 170, 240, 473, 545, 617, 619, 620, 705, 821, 843 New Whatcom v. Bellingham, etc. Co.— 16 Wash. 138; 47 Pac. 1102 680 New Whatcom v. Bellingham, etc. Co. — 18 Wash. 181; 51 Pac. 360 617, 619, 620, 723 N. Y. & G. L. R. Co. V. Kearney— 55 N. J. L. 463; 26 Atl. 800 197, 480, 742 N. Y. N. H. & H. R. Co. v. New Britain— 49 Conn. 40 240 N. Y. & N. H. R. Co. v. New Haven — 42 Conn. 279; 19 Am. Rep. 534 240, 242 N. Y. Prot. Ep. School, In re— 46 N. Y. 178 398, 585 N. Y. Prot. Ep. School, In re— 15 N. Y. 324 429 N. Y. Life Ins. Co. v. Prest.— 71 Fed. 815 228 Nolan V. Reese — 32 Cal. 484 674 Noonan v. People— 183 111. 52; 55 N. E. 679 518, 569 Noonan v. Stillwater— 33 Minn. 198; 53 Am. Rep. 23; 22 N. Y. 444 40 Norfolk V. Chamberlain— 89 Va. 196; 16 S. E. 730 36 Norfolk V. Ellis— 26 Gratt. 224 28, 82, 170, 172 Norfolk V. Virginia— 89 Va. 196; 16 S. E. 730 82 Norfolk V. Young— 97 Va. 728; 47 L. R. A. 574; 34 S. E. 886. .41, 107, 301 North Beach & M. R. Co., In re and appeal of — 32 Cal. 499 240, 241 N. Chic. Park Com. v. Baldwin— 62 111. 87; 44 N. E. 404 498 TABLE OF CASES. Ux (The references are to sections.) Nor. Ind. R. Co. v. Connelly— 10 Ohio St. 159 77, 169, 241, 471 Northern Liberties v. Swain — 13 Pa. St. 113 221, 701 Northern Liberties v. St. Johns Church — 13 Pa. 104.. 21, 199, 210, 263 Northport v. Northport T. S. Co.— 27 Wash. 543; 68 Pac. 204 727 In re Norton — 61 Minn. 542; 64 N. W. 190 168 Norton v. Courtney — 53 Cal. 691 512 Norton v. Fisher- 33 Ind. App. 132; 71 N. E. 51 507 Northwestern, etc. Bank v. Spokane — 18 Wash. 456; 51 Pac. 1070 179, 458 N. W. Lumber Co. v. Aberdeen— 20 Wash. 102; 54 Pac. 935. . .659, 666 N. W. Lumber Co. v. Aberdeen— 22 Wash. 404; 60 Pae. 1115,.. 659 662, 663 Norwood V. Baker— 172 U. S. 269, 278, 279, 291; 43 L. ed. 443, 447. 452, 453; 19 Sup. Ct. Rep. 187.. 3, 50, 96, 106, 109, 183, 192, 210, 445, 481, 783, 790 Nottgae V. Portland— 35 Greg. 539; 76 Am. St. Rep. 513; 58 Pac. 883 669, 770, 811, 812, 813, 818, 821 Nowlen v. Benton Harbor— 134 Mich. 401; 96 N. W. 450 537, 722 Nowlin V. People— .216 111. 543; 75 N. E. 209 622 Sackett, etc. Streets, In re— 74 N. Y. 95 123, 453, 811 O. O. & C. R. Co. V. Portland— 25 Greg. 229; 22 L. R. A. 713; 35 Pac. 452 448, 669 Oak Park v. Schosenski— 215 111. 229; 74 N. E." 135 794 O'Brien v. Baltimore Co.- 51 Md. 15 811 O'Brien v. Philadelphia— 150 Pa. St. 589; 30 Am. St. Rep. 832; 24 Atl. 1047 634 O'Brien v. Wheelock— 184 U. S. 450; 46 L. ed. 636; 22 Sup. Ct. Rep. 354 726 O'Connor v. Pittsburg— 18 Pa. St. 187 42 O'Dea V. Mitchell— 144 Cal. 374; 77 Pae. 1020 89, 282, 439, 525, 699, 722 Ogden City v. Armstrong— 168 U. S. 224; 42 L. ed. 444; 18 Sup. Ct. Rep. 98 Ogden V. Lake View— 121 III. 422; 13 N. E. 159 277, 284, 378 Ogden V. Philadelphia— 143 Pa. St. 430; 22 Atl. 694 634 O'Hara v. Seranton— 54 Atl. 713; 205 Pa. St. 142 660 Gil City V. Gil City Boiler Works— 152 Pa. St. 348; 25 Atl. 549 577, 579, 580, 746 O'Kane v. Treat- 25 111. 557 798 Olcott V. State— 10 111. 481 556, 652 O'Leary v. Sloo— 7 La. Ann. 25 211 Olive Cemetery Co. v. Philadelphia— 93 Pa. St. 129; 39 Am. Rep. 732 11, 15, 259 Olney v. Harvey— 50 111. 453; 99 Am. Dec. 530 682 Olsson V. Topeka— 42 Kan. 709; 21 Pac. 219 250, 253, 500, 570, 572 Omaha v. Clarke— 66 Neb. 33; 92 N. W. 146 719 Omaha v. Croft— 60 Neb. 57; 82 N. W. 120 763 Omaha v. Flood— 57 Neb. 124; 77 N. W. 379 559, 625, 638 Omaha v. Granter— 4 Neb. (Unof.) 52; 93 N. W. 407 282, 728 Omaha v. Megeath-Hl6 Neb. 502; 64 N. W. 1091.. 257, 598, 788, 790 Omaha v. State (Neb.)— 94 N. W. 929 654 Omaha v. Williams— 52 Neb. 40; 71 N. W. 970 632 Omega St.— 152 Pa. St. 129 ; 25 Atl. 528 490, 821 O'Neil v. People— 166 111. 561; 46 N. E. 1096 361, 388, 392, 710 Ix TABLE OF CASES. (The references are to sections.) Opening of Park Ave., In re — 83 Pa. St. 167 440 Oregon E. E. Co. v. Gambell— 41 Oreg. 61; 66 Pac. 441 811, 816 Oregon R. E. Co. v. Portland— 40 Oreg. 56; 66 Pac. 442 529, 811, 816 Oregon Transfer Co. v. Portland (Or.)— 81 Pac. 575 136, 529 O'Eeiley v. Kankakee &e. Drainage Co.— 32 Ind. 169 32 O'Reilly v. Holt— 4 Woods 645; Fed. Cas. No. 10, 563 176 O'Eeilly v. Kingston— 114 N. Y. 439; 21 N. E. 1004 121, 167, 169, 238, 474, 564 Orkney St., In re— 194 Pa. St. 425; 48 L. R. A. 274; 45 Atl. 314 207, 247 Orr V. Omaha— 2 Neb. (Unof.) 771; 90 N. W. 301 282, 728 Orth V. Park— 117 Ky. 779; 79 S. W. 206; 80 S. W. 1108; 81 S. W. 251 838 Osborn v. Lyons— 104 Iowa 160; 73 N. W. 650 412 Oshkosh City E. Co. v. Winnebago Co.— 89 Wis. 435; 61 N. W. 1107 240, 250, 266, 267 Oster V. Jefferson City— 57 Mo. App. 485 658 Oswald V. Gilberts— 11 Johns. 443 714 Otis V. Chicago— 62 111. 299 685 Otis V. Chicago— 161 111. 199; 43 N. E. 715 368 Otis V. Sullivan— 219 111. 365; 76 N. E. 487 522 Ottawa V. Barney— 10 Kan. 270 791, 792 Ottawa V. C. E. I. & P. R. Co.— 25 111. 43 324, 738, 787, 793 Ottawa V. Macy— 20 111. 413 302 Ottawa V. Speneer-^0 111. 211 35, 63, 64, 187, 210, 370, 481 Ottawa V. Trustees, etc. — 20 III. 423 260 Ottumwa Brick, etc. Co. v. Ainley— 109 Iowa 386; 80 N. W. 510 249, 389, 661, 711 Overman v. St. Paul— 39 Minn. 120; 39 N. W. 66 294, 750 Owen V. Chicago— 53 111. 95 295 Owens V. Marion— 127 Iowa 469 ; 103 N. W. 381 94, 306, 309, 389, 397, 554, 735, 748, 753, 786 Owens V. Milwaukee— 47 Wis. 461; 3 N. W. 3.. 576, 631, 696, 723, 757 Owners of Ground v. Mayor— 15 Wend. 374 98, 113, 197, 218 Pabst Brewing Co. v. Milwaukee — 105 N. W. 563 554, 711, 725, 748, 754 Pacific Paving Co. v. Geary— 136 Cal. 373 ; 68 Pac. 1028 558 Page v. Chicago— 60 111. 441 236, 524 Paine v. Spratley — 5 Kan. 525 689 Paine Lumber Co. v. Oshkosh— 86 Wis. 397 ; 56 N. W. 1088 804 Palmer v. Danville— 154 111. 156; 38 N. E. 1067. .175, 221, 376, 377, 578 Palmer v. Danville— 166 111. 42; 46 N. E. 629.. 189, 395, 461, 589, 667 Palmer v. Stumpf— 29 Ind. 329 22, 65, 168, 676, 727 Palmer v. Taylor— 31 Cal. 240 420 Palmer v. Way— 6 Colo. 106, 116 18, 29, 60, 186, 442 Palmyra v. Morton — 25 Mo. 593 168 Pardridge v. Hyde Park— 131 111. 537; 23 N. E. 345 432, 820 Park Ave. Sewers— 169 Pa. St. 433; 32 Atl. 574 226, 580 Park Co. Coal Co. v. Campbell— 140 Ind. 28 ; 39 N. E. 149, 558 . . 244 Parke v. Boston— 8 Pick. 218; 19 Am. Dec. 322 601 Parke v. Seattle— 5 Wash. 1 ; 20 L. E. A. 68; 34 Am, St. Rep. 839; 31 Pac. 310; 32 Pac. 82 625, 626 Parker v. Altschul— 60 Cal. 381 687 Parker v. Atchison — 48 Kan. 574; 30 Pac. 20 572, 82a TABLE OP CASES. 1x1 The references are to sections.) Parker v. Catholic Bishop — 146 111. 158; 34 N. E. 473 624, 64S Parker v. Challis— 9 Kan. 155 130, 168, 175, 698 Parker v. La Grange— 171 111. 344; 49 N. E. 550 27» Parker v. Eeay— 76 Cal. 103; 18 Pac. 124 599 Parkersburg v. Tavenner — 42 W. Va. 486; 26 S. E. 179 83 Parmelee v. Chicago — 60 111. 267 264 Parmelee v. Thompson — 7 Hill 80 158 Parmelee v. Youngstown — 43 Ohio St. 162 ; 1 N. E. 319 526 Parrotte v. Omaha— 61 Neb. 96; 84 N. W. 602 797 Parsons v. Columbus — 50 Ohio St. 460; 34 N. E. 677 127, 404 Parsons v. Dist. of Col.— 170 U. S. 45; 42 L. ed. 943; 18 Sup. Ct. Eep. 521 170, 221 Parsons v. Grand Eapids (Mich.) — 104 N. W. 730 523 Partridge v. Lucas — 99 Cal. 519; 33 Pac. 1082.. 290, 327, 392, 566, 670 Paterson, etc. Co. v. Nutley (N. J. L.)— 59 Atl. 1032 458 Patterson v. Barber A. P. Co. (Minn.)— 104 N. W. 566 777 Patterson v. Macomb— 129 111. 163; 53 N. E. 617 279 Paulsen v. City of Portland— 16 Oreg. 450; 1 L. R. A. 673; 19 Pac. 450 103, 133, 449, 579, 783,784 Paulsen v. City of Portland— 149 U. S. 41; 37 L. ed. 641; 13 Sup. Ct. Eep. 754 94 Paxton V. Bogardus— 201 111. 628; 66 N. E. 853. .330, 334, 337, 368, 405 Payne v. S. Springfield- 161 111. 285 ; 44 N. E. 105 168, 292, 345, 363, 364, 583, 597 Payson v. People— 175 111. 267; 51 N. E. 588 389, 515, 592 Peake v. New Orleans- 139 U. S. 342; 35 L. ed. 131; 11 Sup. Ct. Rep. 541 24, 431, 657, 659 Pearce v. Hyde Park— 126 111. 287; 18 N. E. 824.. 336, 342, 364, 487 Pearce v. Milwaukee — 18 Wis. 420 631 Pearson v. Chicago— 162 111. 383; 44 N. E. 739 354, 431, 432 Pearson v. Yewdall— 95 U. S. 294; 24 L. ed. 436 94 Pearson v. Zable— 78 Ky. 170 443, 660 Pease v. Chicago— 21 111. 500 714 Peay v. Little Eock— 32 Ark. 31 57, 58, 170 Peck V. Chicago— 22 111. 578 714 Peek V. Grand Eapids— 125 Mich. 410, 416; 84 N. W. 614 808 Peek V. Sherwood— 56 N. Y. 615 714 Pells V. Paxton— 176 111. 318; 52 N. E. 64 331, 365, 408 Pells V. People— 159 111. 580; 42 N. E. 784 615, 623 Pells V. People— 174 111. 580 345 Pelton, In re— 85 N. Y. 651 498 Penn. Co. v. Cole— 132 Fed. 668 370, 520, 721 Pennock v. Hoover — 5 Eawle 291 170, 701 Peoria v. Kidder— 26 111. 351 19, 793 Pepper v. Pniladelphia— 114 Pa. St. 96; 6 Atl. 899 416, 417, 418, 673, 720, 724 Perine v. Erzbaeher- 102 Cal. 234; 36 Pac. 585 248 Ferine v. Forbush— 97 Cal. 305 ; 32 Pac. 226 263 Perine v. Lewis— 128 Cal. 236; 60 Pac. 422, 772 318, 705, 752 Perisho v. People— 185 111. 334; 56 N. E. 1134 283 Perkins v. People— 27 Mich. 336 647 Perrine N. P. etc. Co. v. Pasadena — 116 Cal. 6; 47 Pac. 777 403 Perry v. People— 155 111. 299 ; 40 N. E. 599 619 Perry v. People— 155 111. 307 ; 40 N. E. 468 311, 322 Perry v. People— 206 111. 334; 69 N. E. 63 359, 611 Peru V. Bartels— 214 111. 515; 73 N. E. 755 459 Peters v. Chicago— 192 111. 437; 61 N. E. 438 343, 363 ^^ TABLE OF CASBg. (The references are to sections.) Petition of Aster— 50 N. Y. 363 316 Petition of New Orleans— 11 La. Ann. 338 122, 128, 191, 226 Petition of New Orleans— 20 La. Ann. 497 68 Pettibone v. Smith— 150 Pa. 118; 17 L. R. A. 423; 24 Atl. 639 11, 21, 254 Pettigrew v. Evansville— 25 Wis. 223; 3 Am. Rep. 50 113, 647 Pettit V. Duke— 10 Utah 311; 37 Pac. 568, 569.. 24, 26, 227, 779, 780 Peyser v. Mayor, etc.— 70 N. Y. 497; 26 Am. Rep. 624 767 Peyton v. Morgan Park— 172 111. 102; 49 N. E. 1003 340, 492 PfeiflFer v. People— 170 111. 347; 48 N. E. 979 190, 381, 458, 523 Phelan v. Dunne— 72 Cal. 229; 13 Pac. 662 704 Phelps V. Mattoon— 177 111. 169; 52 N. E. 288 621 Phelps V. Mayor— 112 N. Y. 216; 2 L. E. A. 626; 19 N. E. 408. .371, 771 'Philadelphia v. Baker— 140 Pa. St. 11; 21 Atl. 238 694 Philadelphia v. Ball— 147 Pa. St. 243 ; 23 Atl. 564 696 Philadelphia v. Bowman— 166 Pa. St. 393; 31 Atl. 142 694 Philadelphia v. Bradfield— 159 Pa. St. 517; 28 Atl. 360 677 Philadelphia v. Cooper— 212 Pa. 306; 61 Atl. 926 700 Philadelphia v. Dibeler— 147 Pa. St. 261; 23 Atl. 567 675 Philadelphia v. Eastwick— 35 Pa. St. 75 252 Philadelphia v. Ehret- 153 Pa. St. 1 ; 25 Atl. 888 212 Philadelphia v. Evans— 139 Pa. St. 483; 21 Atl. 200 674 Philadelphia v. Field— 58 Pa. St. 320 43, 122, 216 Philadelphia v. Greble— 38 Pa. St. 339 698 Philadelphia v. Henry- 161 Pa. St. 38; 28 Atl. 946 597 Philadelphia v. Hill— 166 Pa. St. 211; 30 Atl. 1134 675 Philadelphia v. Hood— 211 Pa. 186, 189; 60 Atl. 721 698, 700 Philadelphia v. Jenkins— 162 Pa. St. 451; 29 Atl. 794 312 Philadelphia v. Market Co.— 161 Pa. St. 522; 29 Atl. 286 566, 694 Philadelphia v. Muklee— 159 Pa. St. 515; 28 Atl. 360 677 Philadelphia v. Odd Fellows etc. Asso.— 168 Pa. St. 105; 31 Atl. 917 586 Philadelphia v. Penna. Hospital— 143 Pa. St. 367 ; 22 Atl. 744 263 Philadelphia v. P. W. & B. R. Co.— 33 Pa. St. 41, 43 241, 242 Philadelphia v. Rule— 93 Pa. St. 15 165 Philadelphia v. Sehofield— 166 Pa. St. 389; 31 Atl. 119 324, 754 Philadelphia v. St. James Church— 124 Pa. St. 207 ; 19 Atl. 497 . . 263 Philadelphia v. Tryon— 35 Pa. St. 401 78, 170, 213 Philadelphia v. Yewdall— 190 Pa. St. 412; 42 Atl. 956 132 Phila. etc. Coal Co. v. Chicago — 158 111. 9; 41 N. E. 1102 820 Philadelphia M. & T. Co. v. New Whatcom— 19 Wash. 225; 52 Pac. 1063 833 P. W. & B. R. Co. V. Shipley— 72 Md. 88 ; 19 Atl. 1 317 Phillips, In re— 60 N. Y. 16 316 Phillips V. Olympia— 21 Wash. 153; 57 Pac. 347 821,832 Phillips V. People— 218 111. 450; 75 N. E. 1016 621 Phillips Academy v. Andover — 175 Mass. 118; 48 L. R. A. 550; 55 N. E. 841 227, 262 Pidgeon v. State— 36 111. 249 652 Piedmont Ave., In re— 59 Minn. 522 ; 61 N. W. 678 820 Piedmont Pav. Co. v. AUman— 136 Cal. 88; 68 Pac. 493 555 Pier V. Fond du Lac— 38 Wis. 470 519, 749, 751, 779, 782 Pierson v. People— 204 111. 456; 68 N. E. 383 306, 335, 345, 347, 382, 383, 459, 597 Pike V. Chicago— 55 111. 656; 40 N. E. 567 394, 450, 550, 552, 649 Pipers Appeal— 32 Cal. 530 118, 438, 449, 450 Pipher v. People— 183 111. 436; 56 N. E. 84 285 TABLE OF CASES. Ixiil (The references are to sections.) Pittelkow V. Herman— 94 Wis. 666; 69 N. W. 805 318,325 Pittelkow V. Milwaukee— 94 Wis. 651 ; 69 N. W. 803 291, 325, 383, 480, 497 Pittsburg V. Maxwell— 179 Pa. St. 553; 36 Atl. 158 756 Pittsburg V. MacConnell— 130 Pa. St. 463; 18 Atl. 645 576 Pittsburg etc. E. Co. v. Fish— 158 Ind. 525; 63 N. B. 454 706 Pittsburg etc. R. Co. v. Maehles— 158 Ind. 159; 63 N. E. 210.. 297, 318 Pittsburg etc. R. Co. v. Oglesby (Ind.)— 76 N. E. 165 267, 522 Pittsburg F. W. & C. B. Co. v. Chicago— 53 111. 80 558, 687 Pittsburg's Appeal— 111 Pa. St. 458; 12 Atl. 366 784 Plumstead Board of Works v. Ingolby— L. R. 8 Exch. 63 210 Poilon V. Brunner— 66 N. J. L. 116; 48 Atl. 541 618 Poilon V. Rutherford— 65 N. J. L. 538; 47 Atl. 439 308, 454 Polk V. McCartney— 104 Iowa 567; 73 N. W. 1067 307 Polk Co. etc. Bank v. State— 69 Iowa 24; 28 N. W. 416 234, 430 Pond V. Negus — 3 Mass. 230; 3 Am. Dec. 131 135 Pontiac v. Talbot Paving Co. — 48 L. R. A. 326; 36 C. C. A. 88; 94 Fed. 65 682 Pooley V. Buffalo— 122 N. Y. 592 ; 26 N. E. 16 771 Pooley V. Buflfalo— 124 N. Y. 206; 26 N. E. 624 771 Port Angeles v. Lauridsen— 26 Wash. 153; 66 Pac. 403 821, 823, 834 Porter v. Chicago— 176 111. 605; 52 N. E. 318 611 Porter v. Tipton— 141 Ind. 347; 40 N. E. 802 125, 657, 666 Porter v. Waterman (Ark.)— 91 S. W. 754 450 Portland v. Baker- 8 Greg. 356 411 Portland v. Bituminous Pav. Co. — 33 Greg. 307; 72 Am. St. Rep. 713; 44 L. E. A. 527; 52 Pac. 28 414, 415, 429, 718 Portland v. Kamm — 10 Greg. 383 640 Portland v. Lee Sam — 7 Greg. 397 638 Portsmouth Sav. Bank v. Omaha— 67 Neb. 50 ; 93 N. W. 231 276, 281, 305, 314, 478, 620 Poth V. Mayor— 151 N. Y. 16; 45 N. E. 372 696, 766, 767 Potter V. Ames — 43 Cal. 75 154 Potter V. Whatcom- 25 Wash. 207; 65 Pac. 197. .618, 619, 620, 659, 663 Potwin V. Johnson— 106 111. 532 15 Potwin V. Oades — 45 111. 366 557 Pound V. Supervisors — 43 Wis. 63 500 Powell V. St. Joseph— 31 Mo. 347 168 Powelton Ave., In re — 11 Phila. 447 345 Praigg V. Western P. & S. Co.— 143 Ind. 358; 42 N. E. 750.. 117, 239 Pratt V. Lincoln Co.— 61 Wis. 62; 20 N. W. 726 798 Pratt V. Milwaukee— 93 Wis. 658; 68 N. W. 392 328, 509, 792, 793 Pray v. Northern Liberties — 31 Pa. 69 210 Prescott V. Chicago— 60 111. 121 529 Preston v. Roberts— 12 Bush 570 177, 731 Preston v. Rudd— 84 Ky. 150, 156 444 Pretzenger v. Sutherland— 63 Ghio St. 132 ; 57 N. E. 1097 505 Primm v. Belleville— 59 111. 142 161, 256 Prindiville v. Jackson— 79 111. 337 221 Prior v. Construction Co.— 170 Mo. 439; 71 S. W. 205 129 P. & R. C. & L Co. V. Chicago— 158 111. 9; 41 N. E. 1102 343, 432, 549, 826 Protestant etc. Home v. Newark — 36 N. J. L. 478 ; 13 Am. Rep. 464 257 Protestant etc. Home v. Newark— 52 N. J. L. 138; 18 Atl. 572 821 Protestant Grphan Asylum Appeal — 111 Pa. St. 135; 3 Atl. 217.. 132, 518 Prout v. People— 83 111. 154 600 Ixiv TABLE OF CASES. (The references are to sections.) Providence Bank v. Billings— 4 Pet. 514; 7 L. ed. 939 123 Provident Inst, for Savings v. Jersey City— 113 U. S. 506; 28 L. ed. 1102; 5 Sup. Ct. Rep. 612 699 Power V. Detroit (Mich.)- 102 N. W. 288 438, 458, 555, 712, 713 Powers Appeal— 29 Mieh. 504 Ill, 160, 207, 307, 400, 648 Powers V. Grand Rapids— 98 Mieh. 393; 57 N. W. 250. . . .155, 245, 433 Public Clearing House v. Coyne— 194 U. S. 497; 48 L. ed. 1092; 24 Sup. a. Rep. 789 97, 98 Pudney v. Passaic— 37 N. J. L. 65 169, 475 Pueblo v. Robinson— 12 Colo. 593, 596; 21 Pao. 899 29, 60, 167, 171 Pumpelly v. G. B. & M. Canal Co.— 13 Wall 166, 180; 20 L. ed. 557, 561; 4 L. R. A. 37; 15 L. R. A. 556; 20 L. R. A. 77 647 Pursell v. Mayor— 85 N. Y. 330 768, 773 Pusey V. Allegheny City— 98 Pa. St. 522 633 Plymouth R. Co. v. Colwell— 39 Pa. St. 337; 80 Am. Dec. 322 243 People V. Adams— 88 Hun, 122; 34 N. Y. Supp. 579 607, 740 People V. Austin-^7 Cal. 353 18, 86, 503 People v. Board— 50 111. 213 682 People V. Bridgeman— 218 111. 568 ; 75 N. E. 1057 622 People V. Brighton— 20 Mich. 57 HI People V. Brislin— 80 111. 423 64, 154, 217, 219, 484, 615 People V. Brooklyn— 23 Barb. 166 453, 469, 578 People V. Brooklyn— 65 N. Y. 349 238, 387 People V. Brooklyn— 71 N. Y. 495 815 People V. Brown— 218 111. 375 ; 75 N. E. 989 700 People V. BuflFalo— 54 App. Div. 629; 147 N. Y. 675; 42 N. E. 344. . 740 People V. Buflfalo— 166 N. Y. 604; 59 N. E. 1128; afSrming S. C. 52 App. Div. 157; 63 N. Y. Supp. 163 132, 177, 229, 245, 437 People V. Bvirke— 206 111. 358; 69 N. E. 45 333, 335, 347, 371 People V. Cash— 207 111. 405; 69 N. E. 904 598, 671, 684 People V. Chapman— 127 111. 387 ; 19 N. E. 872 324 People V. Chicago— 51 111. 17 ; 2 Am. Rep. 278 154 People V. Chicago— 152 HI. 546; 38 N. E. 744 142 People V. Church— 192 111. 302 ; 61 N. E. 496 343 People V. Clark— 1 Cal. 406 535 People V. Clifford— 166 111. 165; 46 N. E. 770 614, 730 People V. Coffey— 66 Hun 160; 21 N. Y. Supp. 34 133 People V. Cohen— 219 111. 200; 76 N. E. 388 724 People V. Cole— 128 111. 158 ; 21 N. E. 6 524 People V. Colvin— 165 111. 67 ; 46 N. E. 14 612 People V. Common Council — 54 N. Y. 507 229 People V. Cook— 180 111. 341 ; 54 N. E. 173 526 People V. County Court— 55 N. Y. 604 158, 440, 495 People V. Desmond — 97 N. Y. Supp. 795 583 People V. Drainage District — 115 111. 45; 39 N. E. 613 592 People V. Eggers— 164 III. 515; 45 N. E. 1074 521, 616, 618 People V. Fuller- 204 111. 290; 68 N. E. 371 610, 616 People V. Gary— 105 111. 332 611 People V. Gillen — 41 Hun, 510 208 People V. Gilon— 126 N. Y. 147; 27 N. E. 282 239, 240, 243, 742 People V. Givens— 123 111. 352 ; 15 N. E. 23 685 People V. Green— 158 111. 594; 42 N. E. 163 507, 520, 615 People V. Hagar-^9 Cal. 229 490, 496, 497 People V. Hagar — 52 Cal. 171 670, 680 People V. Haggin— 57 Cal. 579 678 People V. Hills— 193 111. 281 ; 61 N. E. 1061 ; 376 People V. Houston— 54 Cal. 536 436 TABLE OF CASES. IxV (The references are to sections.) People V. Hurford— 167 111. 226; 47 N. E. 368 367, 371 People V. Hyde Park— 117 111. 462; 6 N. E. 33. .141, 330, 339, 684, 757 People V. 111. Cent. E. Co.— 213 111. 367; 72 N. E. 1069 305, 322, 613, 616 People V. Jones— 137 111. 35; 27 N. E. 294 749 People V. Keener— 194 111. 16; 61 N. E. 1069 681 People V. Kingston— 39 App. Div. 80; 56 N. Y. Supp. 606 502 People V. Kinsman — 51 Cal. 92 810 People V. Latham— 203 111. 9; 67 N. E. 403 334 People V. Lawrence— 41 N. Y. 137 157, 209 People V. Lingle— 165 111. 65; 46 N. E. 10 336, 486, 618 People V. Lynch— 51 Cal. 15 ; 21 Am. Rep. 677 8, 86, 167, 474, 524, 810, 815 People V. Lyon— 218 111. 577; 78 N. E. 1017 622 People V. Maher— 56 Hun, 81 ; 9 N. Y. Supp. 94 414 People V. Many— 89 Hun, 138; 35 N. Y. Supp. 78 723 People V. Markley— 166 111. 48; 46 N. E. 742. . . .355, 451, 495, 615, 710 People V. Mayor, etc. — 6 Barb. 209 37 People V. Mayor, etc. — 4 N. Y. 449 ; 55 Am. Dec. 266 36, 38, 158, 160, 197, 211, 260, 314, 547, 740 People V. Mayor, etc.— 63 N. Y. 291 451, 485, 493 People V. Mayor, etc.— 144 N. Y. 63; 38 N. E. 1006 684 People V. McCain— 50 Cal. 210 317 People V. McWethy— 165 111. 222; 46 N. E. 187 338, 344, 365, 379, 402, 616 People V. McWethy— 177 111. 334; 52 N. B. 479 695, 805 People V. Miner^e 111. 374 770 People V. Meyers— 124 111. 95 ; 16 N. E. 89 593 People V. Nearing— 27 N. Y. 306 .. 109 People V. Nibbe— 150 111. 269; 37 N. E. 217 223 People V. Olvera — 43 Cal. 492 654 People V. O'Neil— 51 Cal. 91 703, 749, 810, 815 People V. Otis— 74 111. 384 135 People V. Parks— 58 Cal. 624 120 People V. Pitt— 169 N. Y. 521; 58 L. R. A. 372; 62 N. E. 662. . . . 100, 165, 169 People V. Pontiac— 185 111. 437; 56 N. E. 1114 682, 683, 820 People V. Quackenbush — 53 Cal. 52 519 People V. Record— 212 111. 62; 72 N. E. 7 381, 459, 680 People V. Ryan— 156 111. 620; 41 N. E. 180 309, 447, 622 People V. Salomon— 51 111. 37 139, 140, 154, 161, 217, 257, 757 People V. Sass— 171 111. 357; 49 N. E. 501 515, 758 People V. Shuman— 83 111. 165 63, 64, 221, 323, 361, 684 People V. Smith— 21 N. Y. 595 36 People V. Springer— 106 111. 542 15 People V. Supervisors — 20 Mich. 95 811 People V. Supervisors — 26 Mich. 22 820, 826 People V. Syracuse— 2 Hun, 433 263 People V. Talmadge— 194 111. 67; 61 N. E. 1049 386, 506 People V. Tax Commissioners — 144 N. Y. 483 ; 39 N. E. 385 738 People V. Trustees of Schools— 118 111. 52; 7 N. E. 262 261 People V. Walsh— 96 111. 232; 36 Am. Rep. 135 433, 757 People V. Warnek- 173 111. 40; 50 N. E. 221 380 People V. Whidden— 191 111. 374; 61 N. E. 133; 56 L. E. A. 905 419, 622, 692, 777 People V. Williams— 51 111. 63 458 People V. Wilson— 119 N. Y. 515; 23 N. E. 1064 758 Ixvi TABLE OF CASES. (The references are to sections.) People V. Whyler— 41 Cal. 351 18 People V. Yancey— 167 111. 255; 47 N. E. 521 146 People V. Yonkers— 39 Barb. 266 346 Q. Quaker City Nat'l Bk. v. Tacoma— 27 Wash. 259; 67 Pac. 710. .. . 667 Quick V. Kiver Forest— 130 111. 323; 22 N. E. 816 496, 732 Quill V. IndianapoUs— 124 Ind. 292; 7 L. R. A. 681; 23 N. E. 788 190, 288 Quinlom v. Myers— 29 Ohio St. 500 722 Quinn v. Cambridge— 187 Mass. 507; 73 N. E. 661 535 Quint V. Hoffman— 103 Cal. 506; 37 Pac. 514, 777 600, 791 Quirk V. Seattle— 38 Wash. 25 ; 80 Pac. 207 458, 635 K. Radcliflf's Ex'rs v. Mayor, etc.— 4 N. Y. 195; 53 Am. Dec. 357.. 113, 761 E. R. Co. V. New Britain— 49 Conn. 40 238 R. R. Co. V. New Haven— 42 Conn. 279; 19 Am. Rep. 534 238 Railway Co. v. Jacksonville— 114 111. 562; 2 N. E. 478 241 Ralsch V. Hildebrandt- 146 Cal. 721; 81 Pac. 21 547 Raisch v. San Francisco — 80 Cal. 1 ; 22 Pac. 22 421 Raleigh v. Peace— 110 N. C. 32; 17 L. R. A. 330; 14 S. E. 521, 522 27, 76, 86, 139, 169, 198, 287, 654 Ramish v. Hartwell— 126 Cal. 443; 58 Pac. 920 543 Ramsey v. Buffalo— 97 N. Y. 114 779, 781 Ransom v. Burlington— 111 la. 77; 82 N. W. 427 249 Rasmussen v. People— 155 111. 70; 39 N. E. 606 317 Rawson v. Chicago— 185 111. 87; 67 N. E. 35 358 Ray V. Jefferaonville— 90 Ind. 567 250, 537 Raymond v. Cleveland— 42 Ohio St. 522 11, 161, 821, 823 Raymonds Est. v. Rutherford— 55 N. J. K 441; 27 Atl. 172.. 169, 173 Raymonds Est. v. Rutherford— 56 N. J. L. 340; 29 Atl. 156 169 Reading v. United Traction Co.— 202 Pa. St. 571; 52 Atl. 106... 239 Reclamation District v. Evans— 61 Cal. 104, 107 99, 176 Reclamation Dist. v. McCuIlah— 124 Cal. 175; 56 Pac. 887 303 Reclamation Dist. No. 108 v. Hagar— 6 Sawy. 567, 569 ; 4 Fed. 366 59, 96, 465 Rector v. Board of Improvement — 50 Ark. 116; 6 S. W. 519 819 Redmond v. Mayor— 125 N. Y. 632; 26 N. E. 727 766, 771 Red River Bank v. Fargo (N. D.)— 103 N. W. 390 661, 663 Reed v. Sexton— 20 Kan. 195 291, 325 Reed v. Tyler— 56 111. 288 790 Reelfoot, etc.. District v. Dawson— 97 Tenn. 151; 34 L. R. A. 725; 36 S. W. 1041 41, 81, 220 Reeves v. Grottendiek— 131 Ind. 107; 30 N. E. 889 533, 537, 543, 791, 792 Reeves v. Wood Co.— 8 Ohio St. 333 77, 138, 169 Eeid V. Clay— 134 Cal. 207 ; 66 Pac. 262 289, 820 Eeid V. Toledo— 18 Ohio 161 199 Reilly v. Albany— 19 N. E. 508; 112 N. Y. 30 660, 843 Reilly v. Fort Dodge— 118 Iowa, 633; 92 N. W. 887 331, 544, 628, 629, 632 Reinken v. Fuehring— 130 Ind. 382; 15 L. R. A. 624; 30 Am. St. Rep. 247; 30 N. E. 414 19, 33, 66, 227 Eeiss V. Graff— 51 Cal. 86, 96 313, 703, 810, 815 TABLE OP CASES. Ixvil (The references are to sections.) Regents v. Williams— 9 Gill. & J. 365; 31 Am. Dec. 72 22ft Remsen v. Wheeler— 105 N. Y. 573; 12 N. E. 564 300 Remsen v. Wheeler— 121 N. Y. 685; 24 N. E. 704 764 Rentz V. Detroit — 48 Mich. 544; 12 N. W. 694, 911 524, 636 Rex V. Commissioners of Tower Hamlets — 9 B. & Cr. 517 223 Reybum v. Wallace— 93 Mo. 326; 3 S. W. 482 703 Reynolds v. Sehweinefuss— 27 Ohio St. 311 387, 435, 551 Rice V. Danville & D. L. & N. Turnpike Co. — 7 Dana, 81 68 Rich V. Chicago— 59 111. 286 Ill, 320, 321, 368, 488 Rich V. Chicago— 152 111. 18; 38 N. E. 255. .189, 236, 241, 251, 364, 524 Rich V. Chicago— 187 111. 396; 58 N. E. 306 375, 383, 649 Rich V. Minneapolis — 37 Minn. 423; 5 Am. St. Rep. 861; 85 N. W. 2 648 Rich V. People— 152 111. 18; 38 N. E. 255 351 Richards v. Cincinnati — 31 Ohio St. 506 211, 499, 558, 603 Richards v. Jersey ville— 2 14 111. 67; 73 N. E. 370 284, 548 Richardson v. Denver — 17 Colo. 398; 30 Pac. 333 737 Richardson v. Morgan — 16 La. Ann. 429 68 Richardson v. Omaha (Neb.)— 104 N. W. 172 402 Richardson v. Webster City— 111 la. 427; 82 N. W. 920 630 Richcreek v. Moarman— '14 Ind. App. 370; 42 N. E. 943 723 Richie v. So. Topeka— 38 Kan. 368; 16 Pac. 332 719, 722 Richman v. Muscatine Co. — 77 la. 513; 14 Am. St. Rep. 308; 4 L. R. A. 445; 42 N. W. 422 810 Richmond v. Daniel— 14 Gratt 385 134 R. & A. R. Co. V. Lynchburg— 81 Va. 473 82, 258 Rieketts v. Hyde Park— 85 111. 110 317, 343, 466, 528, 713 Ricketts v. Spraker— 77 Ind. 371 215, 618, 791, 792 Riebling v. People— 145 111. 120; 33 N. E. 1090 706 Rigney v. Chicago— 102 111. 64 109, 116, 646, 647 Rhinelander, In re— 68 N. Y. 105 587 R. L & A. R. Co. V. Lynch— 23 111. 645 485 R. I. Mortgage & Trust Co. v. Spokane— 19 Wash. 616; 53 Pac. 1104 659, 663 Rhodes v. Denver — 10 Colo. App. 99; 49 Pac. 430 757 River Forest v. C. & N. W. R. Co.— 197 111. 344; 64 N. B. 364. .. . 241 Riverside Co. v. Howell— 113 111. 256 139 Robbins, In re— 82 N. W. 141 423, 425 Roberts, In re— SI N. Y. 62 350, 491 Roberts v. Evansville— 218 111. 296; 75 N. E. 923 94, 188, 267 Roberts v. First Natl. Bank— 8 N. D. 504; 79 N. W. 1049. . . . 169, 471 Roberts v. Smith— 115 Mich. 5; 72 N. W. 1091 113 Robertson v. Omaha— 55 Neb. 718; 44 L. R. A. 534; 76 N. W. 442 415, 572 Robinson v. Logan— 31 Ohio St. 466 284 Robinson v. Milwaukee— 61 Wis. 585; 21 N. W. 610 799 Robinson v. Valparaiso— 136 Ind. 616; 36 N. E. 644 657, 659, 787, 788 Rochester v. Rochester R. R. Co.— 109 App. Div. 638; 96 N. Y. Supp. 152 657 Rochester v. Rochester R. R. Co.— 182 N. Y. 99; 74 N. E. 953. . . . 267 Rockwell V. Bowers— 88 la. 88; 55 N. W. 1 787, 788 Rogers v. Randall— 29 Mich. 41 761 Rogers v. St. Paul— 22 Minn. 494 151, 153, 162, 210, 396 Rogers v. St. Paul— 79 Minn. 5; 47 L. R. A. 537; 81 N. W. 539.. 76& Rogers v. St. Paul— 86 Minn. 98; 90 N. W. 155 766 Rogers v. Voorhees— 124 Ind. 469; 24 N. E. 374 831 Ixviii TABLE OF CASES. (The references are to sections.) iloggs V. Elizabeth— 64 N. J. L. 492; 46 Atl. 164 731 Rolph V. Fargo— 7 N. Dak. 640; 42 L. R. A. 646; 76 N. W. 242 77, 169, 204, 471 Eonon v. People— 193 111. 631; 61 N. B. 1042 346 Rooks' Case— 5 Co. 203 223 Roosevelt Hospital v. Mayor, etc.— 84 N. Y. 108 263, 586 Rork V. Smith et al.— 55 Wis. 67; 12 N. W. 408. . . .296, 822, 823, 843 Rosell V. Neptune City— 68 N. J. L. 509; 53 Atl. 199. . . .454, 741, 742 Rosetta Gravel, etc. Co. v. Jollisaint— 51 La. Ann. 804; 25 So. 477 699 Ross V. Clinton-^6 la. 606; 26 Am. Rep. 169 625 Ross V. Oskaloosa (la.)— 99 N. W. 557 332, 370, 829 Ross V. Portland— 105 Fed. 682 724, 732 Ross V. Stackhouse— 114 Xnd. 200; 16 N. E. 501 190, 360, 399, 721, 722 Ross V. Van Natta— 164 Ind. 557; 74 N. E. 10 306, 622, 706 Ross V. Wright Co. Supervisors (Iowa)— 104 N. W. 506 94, 724 Rossitee v. Lake Forest^l51 111. 491 ; 38 N. E. 359 605 Roter V. Superior- 91 N. W. 651; 115 Wis. 243 659, 665 Roudebush v. Mitchell— 154 Ind. 616; 57 N. E. 570 224 Roundtree v. Galveston — 42 Tex. 612 42, 81, 127 Royal Ins. Co. v. So. Park Comr's— 175 111. 491; 51 N. E. 558. .317, 352 Royce v. Aplington— 90 la. 352; 57 N. W. 868 80© Rue V. Chicago— 57 111. 435 321 Rue V. Chicago— 66 111. 256 320, 496, 741 Ruppert V. Mayor, etc.- 23 Md. 184 230, 673 Russell, etc., Dist. v. Benson— 125 111. 490; 17 N. E. 814.... 820, 827 Rutherford v. Hamilton— 97 Mo. 543; 11 S. W. 249 169, 583 Rutherford v. Maynes— 97 Pa. St. 78 136, 220 Ryan v. Altschul— 103 Cal. 174, 177; 73 Pae. 339.. 523, 536, 707, 747 Ryan v. Gallatin Co.— 14 111. 78 670 Ryan v. People— 207 111. 74; 69 N. E. 638 506 Ryan v. Sumner— 17 Wash. 228; 49 Pac. 487.. 170, 448, 473, 821, 830 S. Sample v. Carroll— 132 Ind. 496; 32 N. E. 220 396, 521 Samuel v. Drainage Comr's— 125 111. 536; 17 N. E. 829 558 Sanborn v. Mason City— 114 Iowa 189; 83 N. W. 286 531 Sanders v. Brown— 65 Ark. 498; 47 S. W. 461 17 Sanderson v. Herman— 95 Wis. 48; 69 N. W. 977 542, 552 Sanderson v. Herman— 108 Wis. 662; 84 N. W. 890; 85 N. W. 141 479, 822, 824 San Diego v. Linda Vista Ir. Dist. — 108 Cal. 189; 35 L. R. A. 33; 41 Pac. 291 234 261 San Diego Im. C. v. Shaw— 129 Cal. 273; 61 Pac. 1082. . .137, 441^ 605 Sandroek v. Columbus— 51 Ohio St. 317; 42 N. E. 255... 169, 173, 477 Sands v. Richmond- 31 Gratt. 571; 31 Am. Rep. 742 82, 172 San Francisco Paving Co. v. Bates — 134 Cal. 39 ; 66 Pac. 2 89 San Francisco Paving Co. v. Bates— 146 Cal. 635; 80 Pac. 1076 167 San Francisco Pav. Co. v. Egan— 146 Cal. 635 ; 80 Pac. 1076 . . 528, 569, 790 San Francisco Pav. Co. v. Dubois (Cal. App.) — 83 Pac. 72 267 San Francisco v. Kiernan— 98 Cal. 614 ; 33 Pac. 720 645 S. F. & W. E. Co. V. Savannah— 96 Ga. 680; 23 S. E. 847 96, 99 Sanger v. Rice — 43 Kan. 580; 23 Pac. 633 690 Sanitary District v. Cullerton— 146 111. 385 639 TABLE OF CASES. Ixix (The references are to sections.) Sanitary District v. Joliet— 189 111. 270; 59 N. B. 566 456 Sargent v. Evanston— 154 111. 269; 40 N. E. 440 302, 335, 367 Sargent v. New Haven— 62 Conn. 510; 26 Atl. 1057 586 Sargent v. Tuttle— 67 Conn. 162; 32 L. R. A. 822; 34 Atl. 1028.. 24 St. Charles v. Deemar— 174 Mo. 122; 73 S. W. 469 169 St. George v. Young-^5 La. Ann. 1232 ; 14 So. 137 191 St. John V. E. St. Louis— 50 111. 92 369 St. John V. E. St. Louis— 136 111. 207; 27 N. E. 543 330, 353, 432 St. Joseph V. Anthony— 30 Mo. 537 135, 168, 672 St. Joseph V. Parrell— 106 Mo. 437; 17 S. W. 497... 39, 177, 432, 592, 669 St. Joseph V. O'Donoghue— 31 Mo. 343 168, 194 In re St. Joseph's Orphan Asylum— 69 N. Y. 353 258, 263, 554 St. Joseph V. Owen— 110 Mo. 445; 19 S. W. 713 74, 363, 587 St. Louis V. Allen— 53 Mo. 44 654 St. Louis V. Armstrong — 38 Mo. 29 194 St. Louis V. Bressler— 56 Mo. 350 652 St. Louis V. Brown— 155 Mo. 545; 56 S. W. 298 233 St. Louis V. Buss— 159 Mo. 9; 59 S. W. 969 36 St. Louis V. Clemens— 36 Mo. 467 194, 656 St. Louis V. Clemens— 49 Mo. 552 168, 175 St. Louis V. Clemens— 52 Mo. 133 818 St. Louis V. De Noue — 44 Mo. 136 533, 654 St. Louis V. Excelsior Br. Co.— 96 Mo. 677; 10 S. W. 477.... 447, 581 St. Louis V. Glenvitz— 148 Mo. 210; 49 S. W. 1000 467 St. Louis V. Koch— 169 Mo. 487; 70 S. W. 143... 135, 436, 540, 652 St. Louis V. Lane— no Mo. 254; 19 S. W. 533 142, 248 St. Louis V. Lang— 131 Mo. 412; 33 S. W. 54 756 St. Louis V. Meier— 77 Mo. 13 267,467 St. Louis V. Deters— 36 Mo. 456 577 St. Louis V. Provenchere— 92 Mo. 66; 4 S. W. 410 465 St. Louis V. Eankin— 96 Mo. 497; 9 S. W. 910 300, 447, 581, 671 St. Louis V. Schoenemann — 52 Mo. 348 590 St. Louis Public Schools v. St. Louis— 26 Mo. 468 234 St. Paul V. District Court— 51 Minn. 539; 53 N. W. 800; 55 N. W. 122 618 St. Paul V. Mullen— 27 Minn. 78; 6 N. W. 424. . .501, 502, 820, 823, 839 St. Paul V. St. P. & P. R. Co.— 23 Minn. 469 265 St. P. & P. R. Co. V. St. Paul— 21 Minn. 526 265 Savannah v. Weed— 96 Ga. 670; 23 S. E. 900 167, 440, 477 Sawyer v. Chicago— 183 111. 57; 55 N. E. 645 347, 568, 570, 573 Saxton V. Beach— 50 Mo. 488 552 Saxton V. St. Joseph— 60 Mo. 153 658 Saxton Nat. B'k v. Bennett— 138 Mo. 494; 40 S. W. 97 40 Scammon v. Chicago — 40 111. 146 135, 317 Seammon v. Chicago — 42 111. 192 234 Seanlon v. Childs— 33 Wis. 663 142 Schaefer v. Werling— 188 U. S. 516; 47 L. ed. 570; 23 Sup. Ct. Rep. 449 88, 146, 170, 468, 473, 567 Schemick v. Chicago— 151 111. 336; 37 N. E. 888 Schenectady v. Trustees— 144 N. Y. 241; 26 L. R. A. 614; 39 N. E. 67 248, 534 Schenectady v. Lnion College— 66 Hun 179; 21 N. Y. Supp. 147 103, 413, 566 Schenley v. Allegheny— 25 Pa. St. 128 41, 170, 201 Schenley v. Allegheny— 36 Pa. St. 29; 78 Am. Dec. 359 78 IXX TABLE OP CASES. (The references are to sections.) Schenley v. Commonwealth— 36 Pa. St. 29; 78 Am. Dec. 357.. 170, 172, 175, 201, 213, 333, 388, 418, 551, 566, 567, 811, 813, 821, 827 Schertz v. People— 105 111. 27 610, 614 Sehmelz v. Giles— 12 Bush 491 247 Schneider v. Dist. of Col.— 7 Maekey 252 505 Schintgen v. La Crosse— 117 Wis. 158; 94 N. W. 84. .287, 386, 505, 575, 822, 840 Sehirmer v. Hoyt— 54 Cal. 280 676 Sehofield v. Watkins— 22 111. 66 785, 810 Sehroeder v. Overman— 61 Ohio St. 1; 47 L. R. A. 156; 76 Am. St. Rep. 354; 55 N. E. 158 169,476,482,527 Sehumin v. Seymour — 24 N. J. Eq. 149 417 Seofield v. Council Bluffs— 68 Iowa 695; 28 N. W. 20.. 430, 567, 656, 658, 660 School District v. Board of Improvement — 65 Ark. 343; 46 S. W. 418 261 School Magnetic Healing v. McAnnutty— 187 U. S. 94; 47 L. ed. 90; 23 Sup. Ct. Rep. 33 98 Schumacher v. Toberman— 56 Cal. 508 122, 328, 796, 810, 814 Sehwiesau v. Mahon— 110 Cal. 543; 42 Pae. 1065 674, 702 Schwiesan v. Mahon— 128 Cal. 114; 60 Pac. 683 290,405 Scott V. Hayes— 162 Ind. 548 ; 70 N. E. 879 502, 712 Scott V. Hinds— 50 Minn. 204; 52 N. W. 523 214, 247, 602 Scott V. People— 120 111. 129 ; 11 N. E. 408 610 Scott V. Toledo— 36 Fed. 385; 1 L. R. A. 688 89, 101 Seotten v. Detroit— 106 Mich. 564; 64 N. W. 579 619 Scovill V. Cleveland— 1 Ohio St. 126 38, 49, 77, 156, 199, 295 Scranton v. Barnes— 147 Pa. St. 461; 23 Atl. 777 369, 353 Scranton v. Bush— 160 Pa. St.; 28 Atl. 926 170, 448, 694 Scranton v. Jermyn— 156 Pa. St. 107; 27 Atl. 66 692 Scranton v. Koehler— 200 Pa. St. 126; 49 Atl. 792 170, 478 Scranton v. Levers— 200 Pa. St. 56; 49 Atl. 980 525 Scranton v. Penn. Coal Co.— 105 Pa. St. 445 165 Scranton v. Sturges— 202 Pa. St. 182; 51 Atl. 764 573 Scruggs V. Huntsville — 45 Ala. 220 170 Seaboard Nat. Bank v. Woesten— 147 Mo. 467; 48 L. A. 279; 48 N. W. 939 413, 414 Seaboard Nat. Bank v. Woesten— 176 Mo. 491; 75 S. W. 49 413, 414 Seaman v. Camden— 66 N. J. L. 516 ; 49 Atl. 977 457 Seaman v. Washington— 172 Pa. St. 467 ; 33 Atl. 759 643 Seanor v. County Commissioners — 13 Wash. 48; 42 Pae. 552.... 215 Seanor v. Whatcom Co. Com'rs— 13 Wash. 48 ; 42 Pac. 552 28 Sears v. Atlantic City (N. J. L.)— 60 Atl. 1093 307, 384 Sears v. Boston— 173 Mass. 71; 43 L. R. A. 834; 53 N. E. 138 227 Sears v. Street Com'rs— 173 Mass. 350; 53 N. E. 876. . 106, 192, 208, 501 Sears v. Street Com'rs— 180 Mass. 274 ; 62 L. R. A. 144, 397 528 Seattle, In re— 26 Wash. 602 ; 67 Pac. 250 645 Seattle v. Doran— 5 Wash. 482; 32 Pac. 105, 1002 333, 382, 551 Seattle v. Hill— 14 Wash. 487; 35 L. R. A. 372; 45 Pac. 17 700 Seattle v. Hill— 23 Wash. 92; 62 Pac. 446 677, 715, 720 Seattle v. Kelleher— 195 U. S. 351; 49 L. ed. 232; 25 Sup. Ct. Rep 44 88, 657, 701, 823 Seattle v. O'Connell— 16 Wash. 625; 48 Pac. 412 678 Seattle v. Smith— 8 Wash. 387; 36 Pac. 280 706 Seattle v. Jesler— 1 Wash. Ter. 572 175 Seattle v. Board of Home Missions, etc. — 138 Fed. 307 642, 644 TABLE OP CASES. Ixxi (The references are to sections.) Seattle Tr. Co. v. Seattle— 27 Wash. 520; 68 Pac. 90 786 Seavey v. Seattle— 17 Wash. 361; 49 Pac. 517 659,664 Second Ave. Church, In re— 66 N. Y. 395; 25 N. E. 207 137, 263, 606, 607, 688 Second Nat. Bank v. Lansing — 25 Mich. 207 606, 658, 664 Second Universalist Society v. Providence— 6 R. I. 235... 260, 263, 773 Security Trust Co. v. Heyderstsedt- 64 Minn. 409 ; 67 N. W. 219 . . 169 Sedalia v. Coleman — 82 Mo. App. 560 169 Sedalia v. Montgomery (Mo. App.)— 88 S. W. 1014 622 Seely v. Pittsburgh— 82 Pa. St. 364; 22 Am. Rep. 760... 165, 166, 401 Seibert v. Linton— 5 W. Va. 57 817 Selby V. Levee Commissioners — 14 La. Ann. 437 177, 219 Seneca Road Co. v. Auburn, etc. R. R. Co.— 5 Hill 170 150 Sessions v. Crunkilton — 20 Ohio St. 349 32 Sewall V. St. Paul— 20 Minn. 511; Gil. 459 293, 294, 295, 317, 660, 778, 780, 803 Shamokin v. Shamokin E. R. Co.— 206 Pa. St. 625 239 Shank v. Smith— 157 Ind. 401; 55 L. R. A. 564; 61 N. E. 932. .210 398, 412, 684 Shannon v. Hinsdale— 180 HI. 202; 54 N. E. 181... 213, 352, 357, 359, 360, 758 Shannon v. Omaha (Neb.)— 100 N. W. 208; 103 N. W. 53.. 293, 308, 326, 482, 666, 733 Shannon v. Portland— 38 Ore. 382; 62 Pac. 50 304, 388, 389, 735 Sharp, In re— 56 N. Y. 259 ; 15 Am. Rep. 415 284 Sharp V. Johnson— 4 Hill 92; 40 Am. Dec. 259 136, 522, 689, 762 Sharp V. Speir— 4 Hill 76 21, 107, 133, 136, 137, 230, 271, 689 Shawneetown v. Mason— 82 111. 337 ; 25 Am. Rep. 321 643 Sheafe v. Seattle— 18 Wash. 298; 51 Pac. 385 662, 665 Sheehan v. Gleeson — 46 Mo. 100 130, 359 Sheehan v. Good Samaritan Hospital — 50 Mo. 155; 11 Am. Rep. 412 20, 260, 262 Sheeley v. Detroit— 45 Mich. 431; 8 N. W. 52.. 123, 131, 168, 193, 211, 212, 470 Shepard v. Barron— 194 U. S. 553; 48 L. ed. 1115; 24 Sup. Ct. Rep. y3y 721 723 Shepard v! Peopie^266 ill. 508; 65 N.'e! 1068 '. '. 521* 545 Shepherd v. Sullivan— 166 HI. 78; 46 N. E. 720 653 Sheridan v. Chicago— 175 HI. 421; 51 N. E. 898 311 Sheriffs v. Chicago— 213 IH. 620; 73 N. E. 367 616, 837 Sherlock v. K. City B. R. Co.— 142 Mo. 172; 64 Am. St. Rep. 551 43 S. W. 629 624 Sherman v. Omaha (Neb.)— 103 N. W. 53 585 Sherwood v. Duluth— 40 Minn. 22 ; 41 N. W. 234 236 Sherwood v. Rynearson (Mich.) — 104 N. W. 392 758 Shoemaker v. Cincinnati— 68 Ohio St. 603 ; 68 N. E. 1 169, 476, 482, 794 Shoemaker v. Harrisburg— 122 Pa. St. 285; 16 Atl. 266 133, 706 Sidway v. Lawson— 58 Ark. 117; 23 S. W. 648 816 Sims V. Hines— 121 Ind. 534 ; .23 N. E. 515 125 Simpson v. Commissioners — 84 N. C 158 231 Simpson v. Kansas City— 46 Kan. 438; 26 Pac. 721 133, 190 Simpson v. Kansas City— 52 Kan. 88; 34 Pac. 406 757 Simpson v. Kinsas City— 111 Mo. 237; 20 S. W. 38 431 Sinclair v. Learned— 51 Mich. 335; 16 N. W. 672 811, 814 Sinclair v. W. Hoboken— 58 N. J. L. 129 ; 32 Atl. 65 490 Singer v. Chicago— 169 111. 286; 48 N. E. 309 353 Ixxii TABLE OF CASES. (The references are to sections.) Sioux City v. School District— 55 Iowa 150; 7 N. W. 488 262 Shoemaker v. United States— 147 U. S. 282; 37 h. ed. 170; 13 Sup. Ct. Rep. 361 203, 218, 247, 602 Shiloh St.— 152 Pa. St. 136; 25 Atl. 530 490,821 Shimmons v. Saginaw— 104 Mich. 511; 62 N. W. 725.... 158, 398, 433, 568, 602 Shinkel x. Essex, etc. Board — 47 N. J. L. 93 454 Shirley v. Waukesha— 124 Wis. 239; 102 N. W. 576 711, 725 Shreve v. Cicero— 129 111. 226; 21 N. E. 815 486, 487, 584 Shreveport v. Prescott— 51 La. Ann. 1895; 46 L. R. A. 193; 26 So. 664, 672 25, 236, 365 Shreveport v. Shreveport, etc. Co.— 104 La. 260; 29 So. 129 236 Shuford V. Commissioners— 86 N. C. 552 76, 198, 231 Shultes V. Eberly— 82 Ala. 242; 2 So. 345 56 Shumate v. Heman— 181 U. S. 402; 45 L. ed. 922; 21 Sup. Ct. Rep. 645 98, 195 Shurtleff v. Chicago— 190 111. 473; 60 N. E. 870 25 Skinker v. Heman— 148 Mo. 350; 49 S. W. 1026 131, 340 Sleeper v. BuUen— 6 Kan. 300 719, 729, 795 Sligh V. Grand Rapids— 84 Mich. 497; 47 N. W. 1093 144, 300 Smith, In re— 52 N. Y. 526 291 Smith V. Aberdeen— 25 Miss. 458 73, 129, 178 Smith V. Buffalo— 90 Hun 118; 35 N. Y. Supp. 635.. 194, 235, 525, 733 Smith V. Buffalo— 159 N. Y. 427; 54 N. E. 62 441, 811 Smith V. Chicago— 57 111. 497 544 Smith V. Chicago— 169 111. 257 ; 48 N. E. 445 332, 344 Smith V. Cofran— 34 Cal. 310 534, 575 Smith V. Davis— 30 Cal. 536 137, 534 Smith V. Des Moines— 106 Iowa 590; 76 N. W. 836 522 Smith V. Detroit— 120 Mich. 572; 79 N. W. 808 820 Smith V. Eau Claire— 78 Wis. 457; 47 N. W. 830.. 11 3, 117, 631, 633, 645, 647 Smith V. Farrelly— 52 Cal. 77 17, 678 Smith V. Hard— 59 Vt. 13; 8 Atl. 317 814 Smith V. Kingston— 120 Pa. St. 357; 14 Atl. 170 594 Smith V. Kochesperger— 173 III. 201 ; 50 N. E. 187 796 Smith V. Milwaukee— 18 Wis. 69 231, 559, 787, 808 Smith V. Minto— 30 Ore. 351; 48 Pac. 166 136, 388, 384, 721 Smith V. Omaha-^9 Neb. 883; 69 N. W. 402.... 135, 137, 195, 433 Smith V. Portland— 25 Ore. 297; 35 Pac. 665 501,505 Smith V. Seattle— 25 Wash. 300; 65 Pac. 612 221 Smith V. St. Joseph— 122 Mo. 643; 27 S. W. 344 451 Smith V. Toledo — 24 Ohio St. 126 288 Smythe v. Chicago— 197 111. 311 ; 64 N. E. 361 341, 364 Snell V. Chicago— 133 111. 413; 8 L. R. A. 858; 24 N. E. 532 325 Snow V. Boston — 188 Mass. 77; 74 N. E. 292 458 Snow V. Fitchburg— 136 Mass. 183 179, 549 Soens V. Racine— 10 Wis. 271 41, 85, 149, 155, 220, 404, 508 Soule V. Seattle— 6 Wash. 315; 33 Pac. 384, 1080 658, 664, 821 Southerin v. Chicago- 56 111. 429 695 Southern, etc. Co. v. Mayor — (Tenn. ch. app.) 48 S. W. 92 415 S. Chi. City. R. Co. v. Chicago— 196 111. 490; 63 N. E. 1013, 1135 521 559 South Omaha v. McGavock (Neb.)— 100 N. W. 805 .' 764 South Omaha v. Ruthjen (Neb.)— 99 N. W. 240 640 South Omaha v. Lighe— 67 Neb. 572 ; 93 N. W. 946 282 S. Park Com'rs v. C. B. & Q. R. Co.— 107 111. 105 241, 249 TABLE OF CASES. IxXlii (The references are to sections.) S. Park Com'rs v. Dunlevy— 91 111. 49 639, 640 Spalding v. Denver— 33 Colo. 172j 80 Pac. 126 271, 283, 426, 441 522 787 791 792 Spangler v. Cleveland— 35 Ohio St. 469 '. 169,' 504,' 505,' 526 Spangler v. Cleveland — 43 Ohio St. 526; 3 N. E. 365 796, 802 Spaulding v. Bradley— 79 Cal. 449 ; 22 Pac. 47 604 Spear v. Drainage Com'rs— 113 111. 632 640 Speer v. Athens— 85 Ga. 49; 6 L. R. A. 402; 11 S. E. 802. .62, 186, 214 Speer v. Essex, etc. Board — 47 N. L. 101 447 Speer v. Pittsburgh— 166 Pa. St. 86; 30 Atl. 1013 277 Spelman v. Portage— 41 Wis. 144 647 Spencer v. Merchant— 100 N. Y. 585; 3 N. E. 682. . . .127, 185, 203, 211 Spencer v. Merchant— 125 U. S. 345; 31 L. ed. 763; 8 Sup. Ct. Rep. 921 94, 98, 112, 118, 657, 819, 822 Sperry v. Flygare — 80 Minn. 327; 49 L. R. A. 757; 81 Am. St. Rep. 261; 83 N. W. 177 215 Spokane Falls v. Brown— 3 Wash. 84; 27 Pac. 1077. . .83, 537, 554, 671 Spokane Falls v. Brown— 8 Wash. 317; 36 Pac. 26 354, 537, 673 Springer v. Chicago— 135 111. 552; 12 L. R. A. 609; 26 N. E. 514. . 549 Springer v. Walters— 139 111. 419; 28 N. E. 761 41, 73, 776 ^ringfleld v. Green- 120 111. 269 ; 11 N. E. 261 65, 167, 205, 248, 249, 345, 351, 597 Springiield v. Green— 123 111. 395 ; 14 N. E. 871 345 Springfield v. Mathus— 124 111. 88; 16 N. E. 92 336, 364 Springfield v. Sale— 127 111. 359; 20 N. E. 86.. 168, 175, 225, 450, 456, 492, 533 Springfield v. Weaver— 137 Mo. 650; 37 S. W. 509; 39 S. W. 276 406, 675 Springfield Steel, etc. Co. v. Anderson — 32 Ind. App. 138; 69 N. E. 404 392 Spring Garden v. Wistar — 18 Pa. St. 195 170, 271 Stansburg v. White— 121 Cal. 433; 53 Pac. 940 403 Stadler v. Milwaukee— 34 Wis. 98 641, 645, 666 Stanton v. Chicago— 154 111. 24; 39 N. E. 987 302, 343 Starr v. Burlin^on — 45 Iowa, 87 391, 721 State V. Aetna Life Ins. Co.— 117 Ind. 251 ; 20 N. E. 144 653, 700 State V. Anderson— 89 Wis. 550; 63 N. W. 746 236, 722 State V. Angert— 127 Mo. 456 654 State V. Ashland— 71 Wis. 502; 37 N. W. 809 134, 217, 738, 739 State V. Ashland— 88 Wis. 599; 60 N. W. 1001 173 State V. Atlantic City— 34 N. J. L. 99 210, 574, 732 State V. Ballard— 16 Wash. 418; 47 Pac. 970 821, 829, 840 State V. Bayonne— 49 N. J. L. 311; 8 Atl. 295 286, 312, 366, 499 State V. Bayonne— 51 N. J. L. 428 ; 17 Atl. 971 324 State V. Bayonne— 52 N. J. L. 503 ; 20 Atl. 69 519 State V. Bayonne— 53 N. J. L. 299; 21 Atl. 453 582 State V. Bayonne— 54 N. J. L. 293 ; 23 Atl. 648 372, 562 State V. Bayonne— 54 N. J. L. 474; 24 Atl. 448 276 State V. Bayonne— 55 N. J. L. 102 ; 25 Atl. 267 523, 526 State V. Bayonne— 56 N. J. L. 268; 28 Atl. 381 131, 418 State V. Bayonne— 56 N. J. L. 463; 29 Atl. 168 511 State V. Bayonne— 60 N. J. L. 406; 38 Atl. 761 525 State V. Bayonne— 63 N. J. L. 202; 42 Atl. 773. .467, 469, 553, 731, 742 State V. Beverly— 53 N. J. L. 560; 22 Atl. 340 656, 669, 742 State v. Blake— 86 Minn. 37; 90 N. W. 5 529, 608 State V. Brill— 58 Minn. 152; 59 N. W. 989 606 State V. Charleston— 12 Rich L. 702 121 Ixxiv TABLE OF CASES. (The references are to sections.) State V. Circviit Court— 64 N. J. L. 536; 45 Atl. 981 485 State V. Clinton— 26 La. Ann. 561 219 State V. Commissioners— 38 N. J. L. 190; 20 Am. Rep. 380 134, 538, 730 State V. County of Bergen— 44 N. J. L. 599 821, 828 State V. Dean— 23 N. J. L. 335 75, 207, 210 State V. IMstriet Court— 27 Minn. 442; 8 N. W. 161 741 State V. District Court— 29 Minn. 62; 11 N. W. 133 171, 193, 346, 489, 495, 542 State V. District Court— 33 Minn. 164; 22 N. W. 295 542 State V. District Court— 33 Minn. 235; 22 N. W. 625 73, 154, 302 State V. District Court— 33 Minn. 295; 23 N. W. 222, 229 26, 153, 247, 252, 346, 435, 489, 528, 738 State V. District Court— 40 Minn. 5; 41 N. W. 235 711 State V. District Court— 51 Minn. 539; 53 N. W. 800; 55 N. W. 122 419 State V. District Court— 55 Minn. 278; 56 N. W. 1006 820, 824 State V. District Court— 61 Minn. 542; 64 N. W. 190 73, 161, 733 State V. District Court— 66 Minn. 161; 68 N. W. 860 121 State V. District Court— 68 Minn. 147; 70 N. W. 1088 546 State V. District Court— 68 Minn. 242; 71 N. W. 27 240, 820, 828, 830, 831, 832 State V. District Court— 72 Minn. 226; 71 Am. St. Rep. 480; 75 N. W. 224 607 State V. District Court— 75 Mimi. 292; 77 N. W. 968 218, 622 State V. District Court— 77 Minn, 248; 79 N. W. 971 820 State V. District Court— 80 Minn. 293 ; 83 N. W. 183 131, 168, 211, 212, 213, 497, 519, 602 State V. District Court— 83 Minn. 170; 86 N. W. 115 257 State V. District Court— 90 Minn. 294; 96 N. W. 737 305, 745 State V. District Court— 90 Minn. 540; 97 N. W. 425 306, 577 State V. District Court (Minn.)— 103 N. W. 744 435, 466, 821, 839 State V. District Court (Minn.)— 103 N. W. 881 821, 822, 826 State V. District Court (Minn.)— 104 N. W. 553.... 306, 607, 833, 834 State V. District Court (Minn.)— 106 N. W. 306 812 State V. Dodge Co.— 8 Neb. 124; 30 Am. Rep. 819 85, 195 State V. Dunnellen— 80 N. J. L. 565; 15 Atl. 529 365, 722 State V. Egan— 64 Minn. 331, 334; 67 N. W. 77 820, 826, 839 State V. Mizabeth— 30 N. J. L. 365 169, 567 State V. Elizabeth— 31 N. J. L. 547 297 State V. Elizabeth— 37 N. J. L. 330 238, 582 State V. Elizabeth^2 N. J. L. 56 323 State V. Elizabeth— 50 N. J. L. 347; 13 Atl. 5 738 State V. Elizabeth— 51 N. J. L. 485 ; 18 Atl. 302 772 State V. Elizabeth— 56 N. J. L. 1 19 ; 27 Atl. 801 169, 475 State V. Engelmann— 106 Mo. 628; 17 S. W. 759 287 State V. Ensign— 54 Minn. 372; 56 N. W. 41 602 State V. Ensign— 55 Minn. 278; 56 N. W. 1006 820, 824 State V. Essex Board— 51 N. J. L. 166; 16 Atl. 695 454 State V. Fairview— 62 N. J. L. 621 ; 43 Atl. 378 274, 275 State V. Farrier— 47 N. J. L. 75 712 State V. Fond du Lac— 42 Wis. 287 516, 739, 743 State V. Frazier— 113 Ind. 267 ; 14 N. E. 561 736 State V. Fuller— 34 N. J. L. 227 41, 113, 158, 169, 196, 214 State V. Gosnell— 116 Wis. 606; 61 L. R. A. 33; 93 N. W. 542. . . 788, 789 State V. Hackensaek, etc. Com'is — 45 N. J. L. 113 161 TABLE OF CASES. IxXT (The references are to sections.) State V. Harland— 74 Wis. 11 753 State V. Hartford— 50 Conn. 89; 47 Am. Rep. 622 233 State V. Hobe— 106 Wis. 411; 82 N. W. 336 670 State V. Hoboken— 36 N. J. L. 293; 51 N. J. L. 267; 17 Atl. 110.. 107 State V. Hotaling— 44 N. J. L. 347 131, 235, 437 State V. Hoboken— 45 N. J. L,. 482 131, 132, 244, 563, 590 State V. Hoboken— 57 N. J. L. 330; 31 Atl. 278 739, 742 State V. Hudson— 27 N. J. L. 214 167, 172 State V. Hudson— 29 N. J. L. 104 172, 447, 455, 484 State V. Hudson Co.— 53 N. J. L. 67; 20 Atl. 894 579 State V. Ironton— 63 Minn. 497; 65 N. W. 935 677 State V. Jersey City— 24 N. J. L. 662 171, 309, 488, 496, 521 State V. Jersey City— 25 N. J. L. 309 301 State V. Jersey City— 25 N. J. L. 315 485 State V. Jersey City— 29 N. J. L. 441 416, 585, 589, 590 State V. Jersey City— 34 N. J. L. 390 560, 738 State V. Jersey City— 35 N. J. L. 381 606, 732, 737 State V. Jersey City— 36 N. J. L. 188 538, 688 State V. Jersey City— 37 N. J. L. 128 479, 539 State V. Jersey City— 41 N. J. L. 489 323 State V. Jersey City— 42 N. J. L. 97 265, 492 State V. Jersey City— 42 N. J. L. 575 410 State V. Jersey City— 68 N. J. L. 140; 52 Atl. 300 236 State V. Judges of Dis't Court— 51 Minn. 539; 53 N. W. 800; 55 N. W. 122 489, 609 State V. La Crosse— 101 Wis. 208 662, 723, 744, 788, 789, 792 State V. Leffingwell— 54 Mo. 458, 477 195, 217, 227 State V. Loveless— 133 Ind. 600; 33 N. W. 622 700 State V. Maginnis — 26 La. Ann. 558 219 State V. Mayor— 35 N. J. L. 168 132 State V. Mayor— 37 N. J. L. 415; 18 Am. Rep. 729 107, 132 State V. Michigan City— 138 Ind. 435, 455; 37 N. E. 1041 237, 246, 426, 428, 673 State V. Mitchell— 31 Ohio St. 592 727 State V. Morristown- 34 N". J. L. 445 309 State V. Mounts— 36 W. Va. 179, 186; 15 L. R. A. 243; 14 S. E. 407 535 State V. Mudgett— 21 Wash. 99; 57 Pac. 351 83 State V. Nelson— 41 Minn. 25; 4 L. R. A. 300; 42 N. W. 548.... 763 State V. Newark— 25 N. J. L. 413 485 State V. Newark— 27 N. J. L. 185 196 State V. Newark— 31 N. J. L. 360 179 State V. Newark— 34 N. J. L. 236 811, 821 State V. Newark— 35 N. J. L. 168 38, 41, 131, 799 State V. Newark— 36 N. J. L. 170 485 State V. Newark— 37 N. J. L. 415; 18 Am. Rep. 729 197 State V. Newark— 48 N. J. L. 101; 2 Atl. 627 131, 132, 233, 442 State V. New Brunswick— 30 N. J. L. 395 215, 401 State V. New Brunswick— 38 N. J. L. 190; 20 Am. Rep. 380. . .491, 578 State V. New Brunswick— 42 N. J. L. 510 539, 731 State V. New Brunswick — 44 N. J. L. 116 596 State V. North Plainfield— 63 N. J. L. 61; 42 Atl. 805 485, 741, 794 State V. Norton— 63 Minn. 497; 65 N. W. 935 73, 161, 733, 746 State V. Oshkosh— 84 Wis. 548 ; 54 N. W. 1095 36, 96, 303, 513, 516, 624 State V. Otis— 53 Minn. 318; 55 N. W. 143 294, 436 Ixxvi TABLE OF CASES. (The references are to sections.) State V. Passaic — 37 N. J. L. 65 ... , 456, 602 State V. Passaic— 38 N. J. L. 171 485 State V. Passaic — 41 N. J. L. 90 130, 491 State V. Passaic — 42 N. J. L. 524 544, 607 State V. Passaic— 44 N. J. L. 171 489 State V. Passaic— 47 N. J. L. 273 731 State V. Passaic— 54 N. J. L. 340; 23 Atl. 945 236, 244 State V. Paterson— 37 N. J. L. 412 437 State V. Paterson-^2 N. J. L. 615 442 State V. Paterson— 48 N. J. L. 435; 5 Atl. 896 594 State V. Perth Amboy— 29 N. J. L. 259 296, 324 State V. Perth Amboy— 59 N. J. L. 335; 36 Atl. 666 831 State V. Pillsbury— 82 Minn. 359; 85 N. W. 175 303, 579 State V. Plainfield— 63 N. J. L. 61; 42 Atl. 805 489, 742 State V. Portage— 12 Wis. 563 125, 170, 175, 354, 481, 597 State V. Rapp— 39 Minn. 65; 38 N. W. p26 36, 513 State V. Eeis— 38 Minn. 371 ; 38 N. W. 97 45, 153, 227 State V. Koad Commissioners — 41 N. J. L. 83 . . 127, 129, 159, 163, 302 State V. Eobt. P. Lewis Co. — 72 Minn. 87; 42 L. R. A. 639; 75 N. W. 108 119, 168, 221, 222, 326, 526 State V. Robt. P. Lewis Co.— 82 Minn. 390, 401; 53 L. R. A. 421; 85 N. W. 207; 86 N. W. 611 168, 446, 482 State V. Robertson- 24 N. J. L. 504 262 State V. Rutherford— 52 N. J. L. 501 ; 20 Atl. 60 722 State V. Rutherford— 55 N. J. L. 441; 27 Atl. 172 475 State V. Rutherford— 55 N. J. L. 450; 26 Atl. 933 331, 730 State V. Rutherford— 57 N. J. L. 619; 31 Atl. 228 505 State V. Rutherford— 58 N. J. L. 113; 32 Atl. 688 502 State V. South Amboy— 62 N. J. L. 197; 40 Atl. 637 310, 336, 595 State V. So. Orange-^9 N. J. L. 104; 6 Atl. 312 826 State V. St. Louis— 52 Mo. 574 439 State V. St. Louis— 56 Mo. 277 585, 586 State V. St. Louis— 62 Mo. 244 42 State V. Stockton— 61 N. J. L. 520; 39 Atl. 921 271, 728, 811, 814 State V. St. Paul— 36 Minn. 529; 32 N. W. 781 259 State V. Stuart— 74 Wis. 620; 43 N. W. 947; 6 L. R. A. 394 99 State V. Superior— 81 Wis. 649; 51 N. W. 1014 113, 759 State V. Superior— 108 Wis. 16; 83 N. W. 1100 731 State V. Topeka— 36 Kan. 76; 59 Am. Rep. 529; 12 Pac. 310 119 State V. Trenton — 40 N. J. L. 89 276 State V. Truscott— 87 Minn. 165; 91 N. W. 484 482 State V. Trustees— 87 Minn. 165; 91 N. W. 484 481 State V. U. S. & Can. Ex. Co.— 60 N. H. 219, 243 75 State V. Vineland— 60 N. J. L. 264; 37 Atl. 625 309, 310, 594 State V. Warren Co.— 17 Ohio St. 558 77 State V. W. Hoboken— 51 N. J. L. 267; 17 Atl. 110 207, 467, 468 State V. W. U. Tel. Co.— 73 Maine 518 43 Steam Forge Co. v. Anderson— 22 Ky. L. R. 397; 57 S. W. 617 230 Stebbina v. Kay— 51 Hun 589 ; 4 N. Y. Supp. 566 169 Stebbins v. Kay— 123 N. Y. 31 ; 26 N. B. 207 136, 137, 541 Steckert v. E. Saginaw— 22 Mich. 104. .193, 400, 484, 531, 570, 720, 727 Steele v. River Forest— 141 111. 302 ; 30 N. E. 1034 . . 342, 362, 364, 379 Steele v. Varney El. Supply Co.— 160 Ind. 338; 98 Ant. S. Rep. 325; 61 L. R. A. 154; 66 N. E. 895 411 Steenberg v. People— 164 111. 478; 45 N. B. 970 353, 392, 506, 613 Steese v. Oviatt— 24 Ohio St. 249 503, 794 TABLE OF OASES. Ixxvii (The references are to sections. Steffen v. Fox— 124 Mo. 630; 28 S. W. 70 597 Steffen v. St. Louis— 135 Mo. 44; 36 S. W. 31 674 Stengel v. Preston— 89 Ky. 616; 13 S. W. 839 768 Stephen v. Daniels— 27 Ohio St. 527 770 Stephens v. Spokane— 11 Wash. 41; 39 Pac. 266 140,659,662 Stephens v. Spokane— 14 Wash. 298; 44 Pac. 541; 45 Pae. 31.. 659, 662, 663, 666 Sterling v. Gait— 117 111. 11; 7 N. E. 471 14, 335, 367 Stetler v. E. Rutherford— 65 N. J. L. 528 ; 47 Atl. 489 732 Stewart v. Mayor, etc. — 7 Md. 500 70, 110 Stevens v. Cedar Eapids (Iowa)— 103 N. W. 363 629, 634 Stewart v. Detroit— 137 Mich. 381; 100 N. W. 613 723 Stimson v. Smith— 8 Minn. 366; Gil. 326 42, 120 Stockton V. Chicago— 136 111. 434; 26 N. E. 1095 640, 645 Stockton V. Clark— 53 Cal. 82 512 Stockton V. Skinner — 53 Cal. 691 512 Stockton V. Whitmore— 50 Cal. 554 135, 385 Stoddard v. Johnson — 75 Ind. 20 215, 618 Stone V. Chicago— 218 111. 348; 75 N. E. 980 724 Stone V. Viele— 38 Ohio St. 314 418 Storrs V. Chicago— 200 111. 364; 70 N. E. 347 595 Storrs V. Chicago— 208 111. 364; 120 N. E. 347 361, 547 Stowell V. Milwaukee— 31 Wis. 523 632, 641, 644 Strassheim v. Jerman — 56 Mo. 105 350 Stretch v. Hoboken— 47 N. J. L. 268 309 Strickland v. Stillwater— 63 Minn. 43; 65 N. W. 131 773 Stritesky v. Cedar Eapids— 98 Iowa 373; 67 N. W. 271 634 Stroud V. Philadelphia— 61 Pa. St. 255 170 Strout V. Portland— 26 Ore. 294; 39 Pac. 126 721, 733 Strowbridge v. Portland— 8 Ore. 67 103, 362 Strusburgh v. Mayor— 87 N. Y. 452 765 Stuart V. Palmer— 74 N. Y. 183; 30 Am. Rep. 289. .36, 93, 96, 98, 99, 101, 118, 149, 158, 198, 437, 778, 779 Stutsman v. Burlington— 127 Iowa 563; 103 N. W. 800 450, 469 Summer v. Milford— 214 111. 388; 73 N. E. 742 383, 485, 794 Sutton's Heirs v. Louisville — 5 Dana, 28 68, 110, 653 Swain v. Comstock— 18 Wis. 463 142 Swain v. Fulmer— 135 Ind. 8 ; 34 N. E. 639 104, 177 Swamp, etc. District v. Feek— 60 Cal. 403 680 Swamp Land Dist. v. Silva— 98 Cal. 51; 32 Pac. 866 502 Swan Point Cemetery v. Tripp— 14 R. I. 199 259 Sweet V. W. Chi. Park Com'rs— 177 111. 492 ; 53 N. E. 74 650 Swift V. Williamsburgh— 24 Barb. 427 698 Swigert, In re— 123 111. 267 ; 14 N. E. 32 254 Swinton v. Asbury — 41 Cal. 525 155, 162 Taber v. Grafmiller— 109 Ind. 206; 9 N. E. 721 243, 288, 327, 512 Tacoma Land Co. v. Tacoma — 15 Wash. 133 ; 45 Pac. 733 723 Tacoma, etc., Co. v. Sternberg— 26 Wash. 84; 66 Pac. 121 618, 620, 684 Talcott V. Noyall— 107 Iowa, 470; 78 N. W. 30 671 Tallant v. Burlington — 39 la. 543 729 Tarlton v. Peggs— 18 Ind. 24 535 Tarman v. Atchison— 69 Kan. 483 ; 7 Pae. Ill 282 Taylor v. Bloomington— 186 111. 497; 58 N. E. 216 272, 353 kxviii TABLE OF CASES. ' (The references are to sections.) Taylor v. Boyd— 63 Tex. 533 81 Taylor v. Chandler— 9 Heisk. 352; 24 Am. Eep. 308 81 Taylor v. Crawfordsville— 155 Ind. 403; 58 N. E. 490 785 Taylor v. Palmer — 31 Cal. 240 8, 17, 22, 23, 59, 287, 318, 405, 652, 654, 753 "Taylor v. Patten— 160 Ind. 4; 66 N. E. 91 373, 718, 722 Taylor v. People— 66 111. 322 653 Teegarden v. Racine— 56 Wis. 545; 14 N. W. 614 220, 750, 751, 755 Terre Haute v. Mack— 139 Ind. 99; 38 N. E. 468 690, 809 Terry v. Hartford— 39 Conn. 286 267 Terry v. Milwaukee— 15 Wis. 490 142, 425, 555 Thaler v. Chi. Park Com'rs— 174 111. 211; 52 N. E. 116 330, 405 Thayer V. Grand Rapids— «2 Mich. 298; 46 N. W. 228 404, 759 The Mayor, etc., Ex parte— 22 Wend. 277 539 Thomas v. Chicago— 152 111. 292; 38 N. E. 923 550 Thomas v. Gain— 35 Mich. 155 ; 24 Am. Rep. 535 100, 107, 177, 193, 538, 778 Thomas v. Leeland — 24 Wend. 65 150 Thomas v. Olympia— 12 Wash. 465; 41 Pac. 191 657, 664 Thomas v. Portland— 40 Ore. 50; 66 Pac. 439 688, 811, 813, 816 Thomaaou v. Ruggles— 69 Cal. 465; 11 Pac. 20 500 Thompson v. Highland Park— 187 111. 265; 58 N. E. 328 337 Thompson v. People— 207 HI. 354; 69 N. E. 843 411, 505, 613 Thomson v. Booneville— 61 Mo. 282 129, 135, 400 Thorn v. W. Chi. Park Com'rs— 130 111. 594; 22 N. B 616 Thornton v. Clinton— 148 Mo. 648 ; 50 S. W. 295 658 Tide- Water Co. v. Coster— 18 N. J. Eq. 518; 90 Am. Dee. 634 36, 107, 151, 196 Tifft V. BuflFalo— 82 N. Y. 204; 7 N. Y. Supp. 633 119, 227, 811 Tingue v. Port Chester— 101 N. Y. 294 ; 4 N. B. 625 280, 420, 724, 795, 821, 823 Title Guaranty & Trust Co. v. Chicago — 162 111. 505; 44 N. E. 416 358, 841 Toberg v. Chicago— 164 HI. 572; 45 N. E. 1010 321, 613 Todemier v. Aapinwall — 43 111. 401 519 Toledo V. Board of Education— 48 Ohio St. 83 ; 26 N. B. 403 234 Toledo V. Sheill— 53 Ohio St. 447; 30 L. R. A. 598; 42 N. B. 323. . 326 Tonawanda v. Lyon— 181 U. S. 389; 45 L. ed. 908; 21 Sup. Ct. Rep. 609 98, 170 Tone V. Columbus— 39 Ohio St. 281; 48 Am. Rep. 438 284 725 726 727 Topeka v. Gage — 44 Kan. 87 ; 24 Pac. 82 .' '.....' 509 Topliff V. Chicago— 196 111. 215; 63 N. E. 692 353 Tournier v. Municipality No. 1—5 La. Ann. 298 214, 661, 665 Tou^alin v. Omaha— 25 Neb. 817; 41 N. W. 796 776, 778, 788, 791, 793 Townsend v. Hoyle — 20 Conn. 1 601 Townsend v. Mayor — 77 N. Y. 542 779 Townsend v. Manistee— 88 Mich. 408 ; 50 N. W. 321 820 Townsend v. Wilson- 9 Pa. St. 270 811,814 Traction Co. v. Board of Works— 56 N. J. L. 431; 29 Atl. 163; 57 N. J. L. 710 309, 594 Traphagen v. South Omaha (Neb.)— 96 N. W. 248 274 Treaner v. Houghton— 103 Cal. 53; 36 Pac. 1081 405, 679, 753 Treat v. People— 195 111. 196; 62 N. B. 891 410. 441 Treat v. Chicago— 125 Fed. 644 388,723 Treat v, Chicago— 64 C. C. A. 645; 130 Fed. 443 146 TABLE OF CASES. Ixxix (The references are to sections. Trenton v. Coyle— 107 Mo. 193; 17 S. W. 643 137, 331 Trester v. Sheboygan— 87 Wis. 496; 58 N. W. 747 513, 815 Twenty-sixth St., In re— 12 Wend. 203 204, 207 Twenty-Eighth St.— 158 Pa. St. 464; 27 Atl. 1109 821 Trigger v. Drainage Dist. No. 1 — 159 III. 230 724 Trimble v. Chicago— 168 111. 567; 48 N. E. 416 358, 841 Trimmer v. Rochester— 130 N. Y. 401; 29 N. E. 746 768, 771 Trimmer v. Rochester— 134 N. Y. 76; 31 N. E. 255 765 Trinity College v. Hartford— 32 Conn. 452 186, 207, 488 Tripler v. Mayor— 125 N. Y. 617 ; 26 N. E. 721 770, 771 Tripler v. Mayor— 139 N. Y. 1; 34 N. E. 729 769 Tripp V. Yankton— 10 S. Dak. 516; 74 N. W. 447 170, 173 Trowbridge v. Detroit— 99 Mich. 443; 58 N. W. 368 145, 399 Troy & L. R. Co. v. Kane— 72 N. Y. 614 770 Trustees Griswold College v. Davenport — 65 Iowa 633; 22 N. W. 904 105 Trustees, etc. v. Anamosa — 76 Iowa 538; 2 L. R .A. 606; 41 N. W. 313 540 Trustees M. E. Church v. Atlanta — 76 Ga. 181 262 Trustees Y. M. C. A. v. Patterson— 61 N. J. L. 420; 39 Atl. 655. . 262 Trustees Union College, In re— 129 N. Y. 308; 29 N. E. 460.. 163, 300 Tucker v. People— 156 111. 108; 40 N. E. 451 618 TuU V. Royston— 30 Kan. 617 ; 2 Pac. 866 697 Tumwater v. Pix— 15 Wash. 324; 46 Pac. 388 303, 310, 315, 428 Tumwater v. Pix— 18 Wash. 153; 51 Pac. 353 821, 835, 840 Turlock Ir. Dist. v. Williams— 76 Cal. 360; 18 Pac 379 226 Turney v. Dougherty— 53 Cal. 619 147 Turpin v. Eagle Creek, etc., Co. — 48 Ind. 45 66, 215 Turpin v. Lemon— 187 U. S. 51; 47 L. ed. 70; 23 Sup. Ct. Rep. 20. . 95 Turrill v. Grafton— 52 Cal. 97 287 Tusting V. Ashbury Park (N. J. L.)— 62 Atl. 183 531, 753 Tuttle V. Polk— 84 Iowa 12; 50 N. W. 38 681, 682, 810, 820 Tuttle V. Polk— 92 Iowa 433; 60 N. W. 733 544 Twiss V. Port Huron— 63 Mich. 528; 30 N. W. 177 407 U. Uhrig V. St. Louis— 47 Mo. 458 194, 347, 439 Ulman v. Mayor, etc.— 72 Md. 593; 11 L. R. A. 224; 20 Atl. 141; 21 Atl 709 94 294 298 Uncas Nat. B'k v. Superior— 115 Wis. 340; 91 N. W. 1104. . .'.662,' 664 Union Cemetery Ass'n v. McConnell— 124 N. Y. 88 ; 26 N. E. 330 .. . 734 Union, etc., Ass'n v. Chicago— 61 111. 439 87, 487, 506, 772, 835 University of Chicago v. People— 118 111. 565; 9 N. E. 189 256 United States v. Fort Scott— 99 U. S. 152; 25 L. ed. 248 661 Updike V. Wright^Sl 111. 49 133, 146, 220, 224 Upington v. Oviatt— 24 Ohio St. 232 169, 335, 538, 608, 811, 814 Upson, In re— 89 N. Y. 67 511 Upton V. People— 176 111. 632; 52 N. E. 358 519, 520, 711 Ure V. Reichenberg— 63 Neb. 899; 89 N. W. 414 548 Vacation of Centre St., In re— 113 Pa. St. 247; 8 Atl. 56 200, 657 Vaile V. Independence— 1 16 Mo. 333; 22 S. W. 695 720 Valentine v. St. Paul— 34 Minn. 446; 26 N. W. 457 433, 767 Van Antwerp, In re— 56 N. Y. 261 86, 821, 827 TABLE OF CASES. (The references are to sections.) Van Buren, In re— 79 N. Y. 384 59, 692, 593- Vancouver v. Wintler — 8 Wash. 378; 36 Pac. 278, 685 252 387 671 70T Vanderbeek v. Rochester— 122 N. Y. 285; 25 N. E. 408.' '. . . . .' 772 Vandersyde v. People— 195 111. 200; 61 N. E. 1050; 62 N. B. 806. . 362 Van Derwenter v. Long Island City— 139 N. Y. 133; 34 N. E. 774 258, 740, 811 Vane v. Evanston— 150 111. 616; 37 N. E. 901 394, 419 Van Sant v. Portland— 6 Ore. 395 308 Van Sickle v. Belknap— 129 Ind. 558; 28 N. E. 305 679 Van Tassel v. Jersey City— 37 N. J. L. 128 175 Van Wagoner v. Patterson— 67 N. J. L. 455 ; 51 Atl. 922 29, 455, 459, 589, 732 Vasser v. Greorge — 47 Miss. 713 73 Vaughn v. Port Chester— 135 N. Y. 460; 32 N. B. 137 770 Velhage v. Stanley (Conn.)— 63 Atl. 347 724 Vennum v. Milford— 202 111. 423; 66 N. E. 1040 272 Verdin v. St. Louis— 131 Mo. 26; 33 S. W. 480; 36 S. W. 52. . . . 413, 414, 424, 429, 721, 729, 778, 783, 791, 799 Vernon v. Litchfield — 41 N. Y. 123 151 Vestry of Bermondsey v. Ramsey— L. R. 6; C. P. 247 210 Vickrey v. Sioux City— 104 Fed. 164 671 Vicksburg S. & P. R. Co. v. Goodenough— 108 La. 442; 66 L. R. A. 314; 32 So. 404 26 Vieley v. Thompson — 44 111. 9 785 Violett V. Alexandria— 92 Va. 561; 31 L. R. A. 382; 53 Am. St. Rep. 825; 23 So. 909 41, 107, 167, 172 Virginia v. Hall— 96 111. 278 652, 653 Voght V. Buffalo— 133 N. Y. 463; 31 N. B. 340 318, 570, 571 Voight V. Detroit— 123 Mich. 547; 82 N. W. 253 Ill Voigt V. Detroit— 184 U. S. 115; 46 L. ed. 459; 22 Sup. Ct. Rep. 337 104, 203, 495 Von Steen v. Beatrice— 36 Neb. 421; 54 N. W. 677 275, 277 Voorhis, In re— 90 N. Y. 668 433 Voris V. Pittsburgh, etc., Glass Co.— 163 Ind. 599; 70 N. E. 249 90, 143, 305, 733 Voris Ex'rs v. Gallaher— 25 Ky. L. R. 1001; 87 S. W. 775 700 Vrana v. St. Louis— 164 Mo. 146; 64 S. W. 180 467, 619 Vreeland v. Bayonne— 54 N. J. L. 488; 24 Atl. 486 485 Vreeland v. Bayonne— 58 N. J. L. 126; 32 Atl. 68 589 Vreeland v. Bayonne— 60 N. J. L. 168; 37 Atl. 737 457, 582, 583 W. Wabash B. R. Co. v. Commissioners, etc.— 134 111. 384; 10 L. R. A. 285 ; 25 N. B. 781 39, 699, 749 Waco V. Chamberlain— (Tex. Civ. App.) 45 S. W. 191 288 Wadlow V. Chicago— 159 111. 176; 42 N. E. 866 337 Wagg V. People— 218 111. 337; 75 N. E. 977 753 Waggerman v. N. Peoria— 155 111. 545; 40 N. E. 485 110, 548, 605 Wahle V. Mehan— 97 Ky. 351 ; 41 S. N. 1040 247 Wahlgreu v. Kansas City— 42 Kan. 243; 21 Pac. 1068 271, 349, 509 Wakely v. Omaha— 58 Neb. 245; 78 N. W. 511 300, 434, 720, 764 Waldron v. Snohomish (Wash.)— 83 Pac. 1106 758 Wales V. Warren— 66 Neb. 455; 92 N. W. 590 548, 574 Walish V. Milwaukee — 95 Wis. 16; 69 N. W. 818 632, 634, 646 Walker v. Ann Arbor— 118 Mich. 251 ; 76 N. W. 394 179, 440 TABLE OF OASES. IxXXl (The references are to sections.) Walker v. Aurora— 140 111. 402; 22 N. E.. 741 168, 323, 453, 481 486, 588, 60S Walker v. Chicago — 62 111. 286 366 Walker v. Chicago— 202 111. 531; 67 N. E. 369 339, 362, 364 Walker v. Detroit — 136 Mich. 6; 98 N. W. 744 532, 538 Walker v. Dist. of Col.— 6 Mackey, 352 308, 494, 557, 693, 741 Walker v. Morgan Park — 175 111. 570; 51 N. E. 636 395, 597 Walker v. People— 166 111. 96 ; 46 N. E. 761 364 Walker v. People— 169 111. 473; 48 N. E. 694 489, 622 Walker v. People— 170 111. 410; 48 N. E. 1010 285, 349, 351, 363, 489, 506 Walker v. People— 202 111. 34; 66 N. E. 827 393, 613 Walker v. Eogan — 1 Wis. 597 404 Walker v. Sarwinet — 92 U. S. 90; 23 L. ed. 678 93 Walker v. Sedalia — 74 Mo. App. 70 639 Wall, Ex parte— 107 U. S. 288; 27 L. ed. 562; 2 Sup. Gt. Rep. 569. 93 Wall V. Monroe Co.— 103 U. S. 77; 26 L. ed. 432 713 Wall V. Portland— 35 Ore. 89 ; 56 Pac. 654 712 Wall V. Wall— 124 Mass. 65 690 Wallace v. Shelton — 14 La. Ann. 498 68, 177, 219 Waller v. Chicago— 53 111. 88 302, 308 Wallieh v. Manitowoc — 57 Wis. 91; 14 N. W. 812 114, 116 Walsh V. Barron— 61 Ohio St. 211; 55 N. E. 164. .169, 199, 464, 476, 482 Walsh V. Matthews— 29 Cal. 123 59, 167, 652 Walsh V. Mayor— 113 N". Y. 142; 20 N. E. 825 407 Walsh V. Sims— 65 Ohio St. 211; 62 N. E. 120.. 169, 477, 482, 685, 728 Walston V. Nevin— 128 U. S. 578; 32 L. ed. 544; 9 Sup. Ct. Eep. jg2 88 Ward V. Walters— 63 Wis. 44; 22 N. W. 844 325 Walters, In re— 75 N. Y. 354 528 Walters v. Lake— 129 111. 23; 21 N. B. 556.323, 441, 489, 518, 550, 649 Wamelink v. Cleveland — 40 Ohio St. 381 281 Ward, In re— 52 N. Y. 395 251, 252 Wardens, etc., v. Burlington — 39 Iowa 224 428 Ware v. Jerseyville— 158 111. 234 ; 41 N. E. 736 65 Warren v. Barber A. P. Co.— 115 Mo. 572; 22 S. W. 490. .340, 406, 724 Warren v. Chandos— 115 Cal. 382; 47 Pac. 132 135, 564 Warren v. Chicago— 118 111. 329; 9 N. E. 883 527, 605 Warren v Commissioners— 187 Mass. 290 ; 72 N. E. 1022 823 Warren v. '^rand Haven — 30 Mich. 24 167, 168, 225, 391, 471, 503, 542, 606, 703 Warren v. Henley— 31 Iowa 31 128, 175, 564, 565, 566, 568, 672 Warren v. Mayor, etc. — 187 Mass. 290 ; 72 N. E. 1022 820, 825, 838 Warren v. Eiddell^l06 Cal. 352; 26 L. Ed. 432 713 Warren v. Russell— 129 Cal. 381 ; 62 Pac. 75 561 Warren v. Warren— 148 111. 641; 36 N. E. 611 534 Warner v. Knox— 50 Wis. 429; 7 N. W. 372 125, 132, 146 Washburn v. Chicago— 198 111. 506; 64 N. E. 1064 341, 451 Washburn v. Chicago— 202 111. 210; 66 N. E. 1033 377 Washington Avenue, In re — 69 Pac. St. 352; 8 Am. Rep. 255 150, 154, 157, 165, 170, 200, 215, 245 Washington v. Bassett— 15 E. I. 563; 2 Am. St. Rep. 929; 10 Atl. 625 317 Washington v. Mayor— 1 Swan 117 30, 81, 307 Washington v. State— 13 Ark. 752 57 Ixxxii TABLE OF CASES. (The references are to sections.) Washington Ice. Co. v. Chicago— 147 111. 327; 37 Am. St. Eep. 222; 35 N. E. 378 188, 354, 367, 395, 456, 635 Watkins v. Milwaukee— 52 Wis. 596; 8 N. W. 823 751 Watkins v. Zwietuseh— 47 Wis. 513 ; 3 N. W. 35 202, 497, 505, 608, 736 Watson V. Chicago— 115 111. 78; 3 N. E. 430 345, 360, 370 Wayne Co. S. B'k v. Gas City L. Co.— 156 Ind. 662; 59 N. E. 1048. . 655 Wells V. BuflFalo— 80 N. Y. 253 779 Wells V. Burnham— 20 Wis. 113 138, 407, 420, .-^OO, 585 Wells V. Chicago— 156 111. 148; 40 N. E. 567 546, 737, 820 Wells V. Chicago— 202 111. 448; 66 N. E. 1056 382, 649 Wells V. People— 201 111. 435; 66 N. E. 210 3bl, 382 Wells V. Street Com'rs— 187 Mass. 451; 73 N. E. 554 528, 590 Wells V. Western P. & S. Co.— 96 Wis. 116; 70 N. W. 1071 774 792 793 Wells V. Wood— 114 Cal. 225; 46 Pac. 96 .'.420^ 753 Weaver v. Templin— 113 Ind. 298; 14 N. E. 600 224, 294, 606 Weber v. Eeinhard— 73 Pa. St. 370; 13 Am. Rep. 747 230 Weber v. San Francisco — 1 Cal. 455 777 Weber v. Schergens— 59 Mo. 389 168, 477, 678 Webster v. Chicago— 62 111. 302 685 Webster v. Fargo— 9 N. Dak. 208; 56 L. E. A. 156; 82 N. W. 732 169, 204, 471 Webster v. Fargo— 181 U. S. 394; 45 L. ed. 912; 21 Sup. Ct. Eep. 623 88, 98, 170, 177 Webster v. People— 98 111. 343 15, 139 Weckler v. Chicago— 61 111. 142 345, 527 Weed V. Boston— 172 Mass. 28; 42 L. E. A. 642; 51 N. E. 204... 192, 587, 740, 744 Weeks v. Milwaukee — 10 Wis. 242 20, 22, 41, 84, 86, 120, 125, 175, 209, 231, 559, 823 Wegeman v. Jefferson— 61 Mo. 55 625 Weise v. Chicago— 200 111. 339; 65 N. E. 648 747 Weismer v. Douglass— 64 N. Y. 91 ; 21 Am. Rep. 586 128, 149 iWeld V. People— 149 111. 257; 36 N. E. 1006 331, 382 Welker v. Potter— 18 Ohio St. 85 288 Weller v. St. Paul— 5 Minn. 95; Gil. 70 175, 500 Wellman, In re— 20 Vt. 653 ; Fed. Cases, No. 17,407 528, 590 Wermer v. Bruneberg — 30 Mich. 201 93, 97 West V. Bancroft— 32 Vt. 367 225 Westall V. Altschul— 126 Cal. 164 ; 58 Pae. 458 820 W. Chi. Park Comrs. v. Chicago— 152 111. 392; 38 N. E. 697 257 516 699 W. Chic. Park Com'rs v. Chicago— 171 111. 146; 49 N. E. 427....' 610 W. Chi. Park Com'rs v. Farber— 171 111. 146; 49 N. E. 427 460, 820, 836, 839, 841 W. Chi. Park Com'rs v. Met. W. S. E. R. Co.— 182 111. 246; 55 N. E. 344 831 W. Chi. Park Com'rs v. Sweet— 167 111. 326; 47 N. E. 728 325, 389, 393, 601 W. Chi. Park Com'rs v. W. U. Tel. Co.— 103 111. 33 326 W. Chi. St. R. Co. V. People— 155 111. 299; 40 N. E. 599 211, 343, 557, 618, 619 W. Chi. St. E. Co. V. People— 156 111. 18; 40 N. E. 605 532, 618 W. Chi. St. E. Co. V. Chicago— 178 111. 339; 53 N. E. 112 236, 239 Western Springs v. Hill— 177 111. 634; 52 N. K 959 369 Westlake Avenue, In re { Wash. ) —82 Pac. 279 522 TABLE OF CASES. Ixxxiii (The references are to sections.) Weston V. Syracuse— 158 N. Y. 274; 43 L. R. A. 678; 70 Am. St. Eep. 472; 53 N. E. 12 408,409,543,674,663. W. S. E. R. Co. V. Stickney— 150 111. 362; 26 L. R. A. 773; 37 N. E. 1098 449 West Third St. Sewer— 187 Pa. St. 565; 41 Atl. 476 577 Wetherell v. Devine— 116 III. 631; 6 N. E. 24 325 Wetmore v. Chicago— 206 111. 367; 69 N. E. 234 379 Whalen v. La Crosse— 16 Wis. 271 659, 664, 682 Whaples v. Waukegan— 179 111. 310; 53 N. E. 618.. 272, 278, 283, 344 Wheeler v. Chicago— 57 111. 415 487 Wheeler v. People— 158 111. 480; 39 N. E. 123 302. Wheeler v. Poplar Bluff— 149 Mo. 36; 49 S. W. 1088 135, 658, 665, 719 Whitaker v. Beach— 12 Kan. 492 317 White V. Alton— 149 111. 626; 37 N. E. 96 323, 346, 347, 532, 545, 564 White V. Bayonne— 49 N. J. L. 311; 8 Atl. 295 294 White V. Chicago— 188 111. 392; 58 N. E. 917 311, 360 White V. Harris— 103 Cal. 528; 37 Pac. 502 585 White V. Harris— 116 Cal. 470; 48 Pac. 382 304 White V. Knowlton— 84 Minn. 141; 86 N. W. 755 700' White V. McKeesport— 101 Pa. St. 394 100 White V. People— 94 111. 604 13, 63, 110, 187, 214, 596, 597 White V. Saginaw— 67 Mich. 33; 34 N. W. 255 288, 606: White V. Snell— 5 Pick. 425; 9 Pick. 16 667 White V. Tacoma— 109 Fed. 32 202, 473, 604, 774 Whiteford v. Phinney— 53 Mich. 130; 18 N. W. 593 738 Whiting V. Quackenbush— 54 Cal. 306 18, 167, 171, 288, 512, 556 Whiting V. Townsend— 57 Cal. 515 167, 288, 669, 670, 678, 680 Whiting V. West Point— 88 Va. 905; 15 L. R. A. 860; 29 Am. St. Rep. 750; 14 So. 698 134 Wick Stree1^184 Pa. St. 93; 39 Atl. 3 561 Wiles V. Hoss— 114 Ind. 371; 16 N. E. 800 405- Wilbur V. Ft. Dodge— 120 Iowa, 555; 95 N. W. .186 626, 627, 629 Wilbur V. Springfield— 123 111. 395; 14 N. E. 871 65, 167, 168, 338, 346, 352, 365 Wilcoxon V. San Luis Obispo— 101 Cal. 508 ; 35 Pac. 988 409 Wilder v. Cincinnati— 26 Ohio St. 284 169, 337 Wilkin V. St. Paul— 33 Minn. 181; 22 N. W. 249 805 Wilkins v. Detroit— 46 Mich. 120; 8 N. W. 701; 9 N. W. 427 132, 211, 301, 557, 797 Wilkinsburg v. Home for Women— 131 Pa. St. 109; 6 L. R. A. 531; 18 Atl. 937 263 Wilkinson v. Trenton— 36 N. J. L. 499 308 Willard v. Albertson— 23 Ind. App. 162; 53 N. E. 1076 721 Willard v. Presbury— 14 Wall. 676; 20 L. ed. 719 210 Williams v. Bergin— 116 Cal. 56; 47 Pac. 877 289,421, 752 Williams v. Bisnago (Cal.)— 34 Pac. 640 213 Williams v. Cammack— 27 Miss. 209; 61 Am. Dec. 508 73, 113, 179, 219 Williams v. Detroit — 2 Mich. 560 71, 110, 131, 168, 176, 312, 561, 570, 668, 677, 788 Williams v. Mayor— 2 Mich. 560 532 Williams v. McDonald— 58 Cal. 527 670 Williams v. Monk— 179 Mass. 22 ; 60 N. E. 394 16 Williams v. Supervisors— 58 Cal. 237 317 Williams v. Viselich— 121 Cal. 314; 53 Pac. 807 735 ixxxiv TABLE. OF CASES. (The references are to sections.) "Williamson v. Berry— 8 How. 543; 12 L. ed. 1191 751 Williamson v. Joyce— 137 Cal. 107; 69 Pac. 854 421 Williamon v. Joyce— 140 Cal. 669; 74 Pac. 290 290 Willis V. Chicago— 189 111. 103; 59 N". E. 543 375 Willis V. Winona— 59 Minn. 27; 26 L. R. A. 142; 60 N. W. 814.. 794 Wilmette v. People— 214 111. 107; 73 N. E. 327 710, 842 Wilmington v. Yopp— 71 N. G. 76 138 Wilson V. Aberdeen— 52 Pac. 524; 19 Wash. 89 659, 663 Wilson V. Auburn— 27 Neb. 435; 43 N. W. 257 26 Wilson V. Bank— 121 Cal. 631; 54 Pac. 119 699 Wilson V. Board of Trustees— 133 111. 443; 27 N. E. 203 140, 152 Wilson V. Chilcott— 12 Colo. 600; 21 Pac. 901 60, 213 Wilson V. Lambert— 168 U. S. 611; 42 L,. ed. 599; 18 Sup. Ct. Bep. 217 219 Wilson V. McKenna— 52 111. 43 790 Wilson V. Philippi— 39 W. Va. 75; 19 S. E. 553 83 Wilson V. Salem— 24 Ore. 504; 34 Pac. 9, 691.. 170, 293, 294, 472, 722 Wilson V. Seattle— 2 Wash. 543; 27 Pac. 474.. .121, 316, 536, 551, 739 Wilson V. Simpson — 9 How. 109; 13 L. ed. 66 572 Wilson V. State— 42 N. J. L. 612 301, 323 Wilson V. Trenton— ^3 N. J. L. 645; 16 L. R. A. 200; 23 Atl. 278 310 319 Windsor v. Des Moines— 101 la. 343; 70 N. W. 214 306, 81l' 813 Wingate v. Astoria— 39 Ore. 603; 65 Pac. 982 619, 793 Wingate v. Tacoma— 13 Wash. 603; 43 Pac. 874 720 Winkelmann v. Moredock, etc.. Dr. Dist. — 170 111. 37; 48 N. E. 715 593 Winnebago Fur Co. v. Fond du Lao Co.— 113 Wis. 72; 88 N. W. 1018 730 Winona & bt. P. R. Co. v. Watertown— 1 S. Dak. 46; 44 N. W. 1072 28, 80, 170, 266, 472 Winslow V. Cincinnati — 6 Ohio N. P. 47 209 Wis. Cent. R. Co. v. Ashland Co.— 81 Wis. 1; 50 N. W. 937 798 Wisner v. People— 156 111. 180; 40 N. E. 574 343, 546, 623 Wistar v. Philadelphia^-80 Pac. St. 505; 21 Am. Rep. 112 133, 170, 200, 567, 575, 597 Wistar v. Philadelphia— HI Pa. St. 604; 4 Atl. 511 132, 213, 575 Witman v. Reading— 169 Pa. St. 375; 32 Atl. 576... 170, 226, 472, 478 Wolf V. Keokuk — 48 Iowa, 129 518 Wolf V. Philadelphia— 105 Pa. St. 25 654, 674 Wolfe V. McHargue— 88 Ky. 251 ; 10 S. W. 809 68 Wolfert V. St. Louis— 115 Mo. 139; 21 S. W. 912 251 Wolff V. Mayor, etc.— 49 Md. 446 656 Wolff V. Denver (Colo.)— 77 Pao. 364 129, 331, 442, 584 Wood V. Brady— 68 Cal. 78; 5 Pac. 623; 8 Pac. 590 702 Woods V. Chicago — 153 111. 582 ; 26 N. E. 608 345, 358 Wood V. Curran— 99 Cal. 137; 33 Pac. 774 704 Wood V. Strother— 76 Cal. 545 ; 9 Am. St. Rep. 249 ; 18 Pac. 766 . . 820 835 Woodbridge v. Detroit— 8 Mich. 274 72, 157, 158^ 210 Woodruff V. Fisher— 17 Barb. 225 776 Woodruff V. Paterson— 36 N. J. L. 159 171 Woodruff PI. V. Rasehig— 147 Ind. 517; 46 N. E. 990 249, 267 Workman v. Chicago — 61 Ah 463 135, 500, 820, 823, 835 Workman v. Worcester — 118 Mass. 168 179 Worthington v. Covington— 82 Ky. 265 286, 429, 671 Wray v. Fry— 158 Ind. 92; 62 N. E. 1004 583, 618 TABLE OF CASES. IxXXV (The references are to sections.) Wray v. Pittsburgh— 46 Pa. St. 365 170, 201, 207, 210, 466, 646 Wright V. Boston— 9 Cush. 233 179, 192, 233, 764 Wright V. Butler— 64 Mo. 165 718 Wright V. Chicago— 20 111. 252 135, 154, 229, 495 Wright V. Chicago— 46 111. 44 35, 63, 64, 481 Wright V. Chicago— 48 111. 285 489, 496 Wright V. Forrestal— 65 Wis. 341 ; 27 N. W. 52 142, 291, 315, 318, 325, 418, 448, 545, 547 Wright V. People— 87 111. 582 217 Wright V. St. Louis— 135 Mo. 144 674 Wright V. Tacoma— 3 Wash. Ter. 410; 19 Pac. 42 778, 790 Wright V. Thomas — 26 Ohio St. 346 229 Writter v. Bachman— 117 Cal. 318; 49 Pac. 202 706 Wulzen V. Supervisors— 101 Cal. 15; 40 Am. St. Eep. 17; 35 Pac. 353 94, 99, 741 Wurtz V. Hoalland— 114 U. S. 606; 29 L. ed. 229; 5 Sup. Ct. Rep. 1086 224 •Whyte V. Mayor— 2 Swan 364 30, 81, 403 Yaggy V. Chicago— 194 111. 88; 62 N. B. 316 389 Yarnold v. Lawrence — 15 Kan. 126 425 Yates V. Milwaukee— 92 Wis. 352; 66 N. W. 248 84, 253, 254, 792 Yates V. Omaha— 58 Neb. 817 ; 80 N. W. 1134 382 Yeatman v. Crandall— 11 La. Ann. 220... 16, 68, 69, 122, 176, 191, 219 Yellow Eiver Imp. Co. v. Wood Co.— 81 Wis. 562; 17 L. R. A. 92 51 N. W. 1004 243, 690 Young V. People— 155 111. 247; 40 N. E. 604 687 Young V. People— 196 111. 603; 63 N. E. 1075 301, 343, 345, 618 Young V. People— 171 111. 299; 49 N. E. 503 613, 614, 618, 619 Young V. Tacoma— 31 Wash. 153 ; 71 Pac. 742 415, 518, 545, 824, 833, 840 Younglove v. Hackman-^3 Ohio St. 69; IN. E. 230 526, 690 York V. Cedar Rapids (Iowa)— 103 N. W. 791 634 Young V. Borzone— 26 Wash. 4 ; 66 Pac. 135, 421 714 Yunker v. Nichols— 1 Colo. 567 155 Z. Zable V. Louisville Orphan Home— 92 Ky. 89; 13 L. R. A. 668; 17 S. W. 212.. 253,254,262 Zabriskie v. Jersey City— 24 N. J. L. 108 171 Zahn V. Rutherford (N. J. L.)— 60 Atl. 1123 746 Zalesky v. Cedar Rapids— 118 la. 714; 92 N. W. 659.... 331, 596, 822 Zanesville v. Richards— 5 Ohio St. 589 138 Zborowski, In re— 68 N. Y. 88 129, 295 Zehnder v. Barber A. Pav. Co.— 106 Fed. 103 88, 790 ^eigler v. Chicago— 213 111. 61; 72 N. E. 719 289, 293 ^eigler v. Hopkins— 117 U. S. 683; 29 L. ed. 1019; 6 Sup. Ct. Rep. 919 728 Zeigler v. People— 156 111. 133; 40 N. E. 607 546 Zeigler v. People— 164 111. 531 ; 45 N. E. 965 323 Zeli V. City— 94 la. 393; 62 N. W. 796 135, 331, 365 Zion Church v. Mayor, etc.— 71 Md. 524; 18 Atl. 895 192, 534 Zottman v. San Francisco — 20 Cal. 96 ; 81 Am. Dec. 96 287 :Zwietusch v. Milwaukee— 55 Wis. 369; 13 N. W. 227 734 LAW OF SPECIAL ASSESSMENTS. CHAPTER I. OEIGIN, HISTOEY AND DEFlSriTION". Introductory, 1. Municipal revenues classified, 2. Theory of equivalents, 3. Comparison of amounts of gen- eral and special taxes, 4. Origin and history, 5-6. Origin in America, 7. English precedents, 8. Distinction between special assess- ment and tax, 9. U. S. supreme court, 10. California, 1 1. Illinois, 12. Mississippi, 12a. New York, 13. Ohio, 14. Pennsylvania, 15. Washington, 16. Wisconsin, 17. Comparative definitions, 18. Distinction between special assess- ment and special taxation, 19. When the word " tax " includes " special assessments," 20. When the word " tax " does not include " special assess- ments,'' 21. Alabama, 22. Arkansas, 23. California, 24. Colorado, 25. Connecticut, 2(5. Georgia, 27. Illinois, 28. Indiana, 28a. Kansas, 29. Louisiana, 30. Maryland, 31. Missouri, 32. New York, 33. Pennsylvania, 34. Texas, 35. Taxes and assessments defined, 36-38. Legal theories of the power of special assessment, 39. Under the police power, 40-44. Under the power of eminent do- main, 4.5-47. Under the power of taxation, 48-49. Of the power to levy special as- sessments — constitutional au- thorization unnecessary, 50- 53. Restraints upon power to levy special assessments, 54. What is meant by " taxation by special assessment," 55. Definition, 56. Objections to the system, 57. Assessment of cost of work, 58. Further objections, 59-64. Merits of the system, 65-66. §§ 1—3 THE LAW OB" SPECIAL ASSESSMiaifTS. Introductory. 1. Under the highly complex conditions of modem muni- cipal life and govemmentj new methods of taxation, or modi- fications of old ones, are constantly sought by those who charge themselves with the duty of spending the people's money. The requirements of modem civilization, the neces- sity for rigid sanitary supervision in urban affairs, and the application of new inventions to urban management, all re- quire the expenditure of immense sums of money, and one American city raises more in one year by taxation than did England, during the same period, in the reign of Elizabeth. The old methods of taxation having proved insufficient, new methods became necessary. Kunidpal reTennes classified. 2. The revenues derived by the municipality of the pres- ent day, other than from fees and licenses, may be divided into three classes : General Taxation, Local or Special Taxa- tion, and Taxation by Special Assessment. Under the first head are embraced those taxes which are levied on the ad valorem principle, upon all taxable property, for general governmental purposes. Under the second head come those occasional imposts levied by special legislative authority, for purely local purposes, within the limits of, and subject to ac- ceptance by the people of the locality, such as subscriptions to railway stock, payment of principal and interest of the funded debt, or construction of court house and other public buildings. The third subdivision. Taxation by Special As- sessment, is the subject of the present work, and will be hereafter discussed and defined. Theory of equivalents. 3. It was for a long time a theory of the economists that all taxes rested upon the principle of equivalents, and that for every dollar of tax yielded to the authorities, an equiva- lent was received by the rate payer in protection to life, lib- § 4 erty or property, or in some other manner. But that posi- tion, so far as general taxation is concerned, has long heen abandoned, and the only limit to legislative exaction in this direction, where not controlled by some inhibition of the organic law, is the ability to pay. It may amount to con- fiscation, but when levied within constitutional limits, and where the law of procedure is strictly followed, the judiciary are unable to afford any relief, no matter how severe or de- structive the effect. But in the case of special assessments, which had their origin in the theory of benefits received, it is believed that the only logical, just or economic authority for the exercise of the power is the special benefit received by the property taxed, by reason of the improvement. This view has been sustained upon the highest of authority, as well as upon reason, and it has been authoritatively deter- mined 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 due process of law.^ Where there is no benefit, there is no ground for the imposition of a tax. If all courts would finally accept this doctrine, so overwhelmingly supported by authority, much of the actual injustice now committed under the guise of special assessr ments would be abated," and many objections to the exercise of the power would cease to be made. Comparison of amonnta of general and special taxes. 4. The tremendous importance of special assessments, as a means of raising revenue for municipal purposes, is apparent from an inspection of the following table, showing 1 Norwood V. Baker, 172 U. S. Eep. 625; Iowa Pipe & Tile Co. v. 269, 43 L. ed. 443, 19 Sup. Callanan, 125 Iowa, 358, 67 L. Ct. Eep. 187; French v. Barber R. A. 408, 106 Am. St. Eep. 311, Asphalt Paving Co., 181 U. S. 101 N. W. 141; Lathrop v. Ra- 324, 45 L. ed. 879, 21 Sup. Ct. cine. 119 Wis. 461, 97 N. W. 192. §§ 5, 6 THE LAW OF SPECIAI- ASSESSMENTS. the comparative amounts raised for general and special taxes in a few cities in 1905. Total Special General Tax. Assessments. 'New York $81,744,865.85 $5,990,596.97 Chicago 16,845,974.19 5,026,521.91 St. Louis 8,563,109.00 2,402,814.94 Minneapolis 3,713,379.87 643,954.98 Milwaukee 3,379,394.52 415,667.16 St. Paul 2,122,873.33 378,483.27 Tacoma 352,497.25 500,787.50 Origfinal history. 5. Before attempting to define and limit the term " spe- «ial assessment," it will be well to briefly glance at its history. That the principle was known to the civilians is evident from the statement in Puffendorf that " It is agreeable to natural equity that when contributions are to be made for the preservation of a particular thing by such as enjoy it in common, that every man should only pay his quota, and that one should not be forced to bear more of the burthen than another, and the same holds in commonwealths ; but because the state of the commonwealth may often be such that either some pressing necessity will not give leave that every par- ticular subject's share should be collected, or else that the public should have necessary occasion to make use of some- thing in the possession of one or more of the private sub- jects, the sovereign power may seize upon it for the necessi- ties of the commonwealth; but, then, all that was above the proportion that was due from the proprietors must be re- funded to them by the rest of the subjects." ^ 6. The power which we now denominate as local, or spe- cial, assessment was recognized by Blackstone,* and the stat- utory giving to commissioners the authority to " assess such 2 Puffendorf, Book 8, Ch. 3. a Book 3, p. 73. 4 OBIGIN, HISTORY AND DEFINITIOIT. § Y rates, or scots, upon the owners of lands within their district, as they shall judge necessary." And by stat. 23, of Henry VIII, the cost of building sewers was assessed by the com- missioners according to special benefits, but only after notice to the land owner, and a hearing; otherwise the assessment was void. The system of constructing special taxing districts for local assessments has prevailed in London since 1531 ; every new quarter has been provided with streets and sewers as the necessity arose, by the creation of a separate taxing district, and under a separate board.* Pepys notes in his " Diary," under the date of Dec. 3, 1667, in connection with the making of King Street from the Guildhall to 'Cheapside that the owners of a piece of ground through which the street would pass asked at first two hundred pounds for the part taken; but, as there rcr mained ground enough on each side to build a house fronting the street, the court allowed the city a counterclaim for " melioration," and in the end the owner consented to give his ground for nothing, on condition that he paid nothing for the benefit the rest of the property received from the new street. Origin in America, 7. The power to impose such an assessment was given to a Highway Board in Ulster County, in the then colony of New York, in 1691, for the purpose of making public roads; and the same power was that year given to the corporation of the city of New York for the construction of the public streets. These acts were still in force in 1773, and the bet- terment clauses were re-afiSrmed in 1787, when the old colo- nial statutes were revised for the new State Constitution under the Eepublic.^ As the city grew, fresh Improvement 4 A Reply to the Duke of Ar- 6 The Betterment Tax in Amer- gyll on the Betterment Tax; by ica; by John Eae, Contemporary John Eae, Cont. Review, July, Review, May, 1890. 1890. 5 § 8 THE LAW OF SPECIAL ASSESSMEKTS. Acts were required, and obtained in successive statutes in 1793, 1795, 1796, 1801 and 1813.« An American liistorian has written regarding the power of special assessment, that it originated in the very infancy of New York, and has continued ever since one of the ordi- nary ways and means of meeting the cost of city improve- ments. It was a common custom there, even before it was sanctioned by any statute, for when the city fathers caused a new well to be dug, they always laid one-half of its cost upon the city generally, and the other one-half upon " the owners of property nearest the well." This was done in the case of public wells in Broadway, Pearl Street, and other parts of the city in 1676.'' English precedents. 8. It might be inferred from this early appearance of the principle of local assessment for benefits in ISTew Amsterdam that it was of Dutch origin, but the better opinion is that such was not the case. It probably arose spontaneously, be- cause of the innate and manifest equity of the proceeding, although the seeds of the idea may have been brought from England, where the application of the principle was at least a century or more old, as we have seen, and the maintaining of the repairs of the streets in London and Westminster in front of his own property " to the channel running in the middle of the street," and the construction of embankments against the " outragiousness of the river," at Plumstead and Eirth, was imposed by statute on the adjacent land owner as far back as the days of Henry the Eighth.* oAngell & Durfee's Law of have prevailed, it is believed, in Highways, 158. most, if not all, of our American ' Watson's Annals of New states, and their validity when as- York, 157. sessed as in this instance cannot 8 1 Clifford's Private Bill Leg- be questioned under our eonstitu- islation, 28. tion. Their intrinsic justice strikes " These special assessments are every one. If an improvement is found in the English law, and to be made, the benefit of which OEIGIN, HISTOET AND DEFIHITION. §§ 9, 10 Enougli has been stated to show the origin of this principle of law, which is now so thoroughly incorporated into Ameri- can jurisprudence as to become a distinct feature thereof, and finally acknowledged as constitutional by the courts of last resort in every state where the question has been raised except in South Carolina.® Distinction between special assessment and tax. 9. The difficulty in defining what is a " special assess- ment," as distinguished from a tax, is as great as in actually defining the meaning of the phrase " due process of law," and may perhaps be best illustrated by pointing out some of the differences between them as laid down in the adjudicated cases. ^^ ■ XT. S. Supreme Court. 10. " Taxes proper, or general taxes, proceed upon the theory that the existence of government is a neces- is local, it is but just that tie property benefited should bear the burden. While the few ought not to be taxed for the benefit of the whole, the whole ought (not) to be taxed for the benefit of the few. A single township in a county ought not to bear the whole county expenses, neither ought the whole county to be taxed for the benefit of a single township; and the same principle requires that taxation for a local object, bene- ficial only to a portion of a town or city, should be upon that part only. General taxation for a mere local purpose is unjust; it burdens those who are not bene- fited, and benefits those who are exempt from the burden." Iieon- ard, J., in Lockwood v. St. Iiouis, 24 Mo. 20. 9 " It had its ori^ and devel- opment in the principle of local self-government, characteristic of free institutions, founded by the Anglo-Saxon race, — the leaving to each local community the due administration of the aSairs in which it had an exceptive, pe- culiar and local interest, and in the nature of real property, to which it is alone applicable. It is not the creation of a philo- sophic brain drafting constitu- tions and forms of government, but the outgrowth of the neces- sities and varying exigencies of local communities, and hence, like all institutions of similar origin and development, has in- consistencies and incongruities." George, C. J., in Macon v. Patty, 57 Miss. 378, 34 Am. Eep. 451. lo See, also, cases cited under heading "Local and Special As- sessments Defined," note 68 infra. § 11 THE LAW OF SPECIAJ. ASSESSMENTS. sity; that it cannot continue without means to pay its expenses ; that for those means it has the right to compel all citizens and property within its limits to contribute ; and that for such contribution it renders no return of special benefit to any property, but only secures to the citizen that general benefit which results from protection to person and property, and the promotion of those various schemes which have for their object the protec- tion of all. ... On the other hand, special assess- ments or special taxes, proceed upon the theory that when a local improvement enhances the value of neigh- boring property, that property should pay for the im- provement." ^^ California. 11, " An assessment for a local improvement is a tax, differing from other taxes in that it need not be levied upon the ad valorem principle. Although such assessment is not prohibited by that clause of the State Constitution which provides that ' all property shall be taxed in proportion to its value,' it is of the very essence of taxation, in every fornix that it be levied with equality and uniformity; and to this end, that there should be some system of apportionment." ^^ 11 Illinois C. R. Co. v. Decatur, tion for general purposes, but 147 U. S. 197, 37 L. ed. 134, 13 the power to tax specific prop- Sup. Ct. Rep. 293, by Brewer, J. erty for a specific purpose. It is Taxes are collected in a sum- not a power to tax property gen- mary manner, without oppor- erally, founded upon the benefits tunity for hearing. But " sum- supposed to be derived from the mary " does not mean " unjust," organization of a government for or " arbitrary." Mcilillen v. An- the protection of life, liberty derson, 95 U. S. 41, 24 L. ed. 336. and property, but a power to tax 1- People V. Lynch, 51 Cal. 20, specific property founded upon 21 Am. Rep. 677. the benefits supposed to be derived The power of " assessment " by the property itself from the ex- cannot be exercised as an inde- penditure of the tax in its im- pendent or principal power like mediate vicinity." that of " taxation," but must be Taylor v. Palmer, 31 Cal. 240, used as an incident to the power 254. of organizing municipal corpora- An assessment for street work tions. . in the city and county of San " It is not a power to tax all Francisco, under the consolida- the property within the corpora- tion act, is not " taxation " within 8 ORIGIN, HISTOBT AND DEFINITION. § 12, 12a " An assessment, as distinguished from a tax, is a special and local charge or imposition upon property in the immediate vicinity of municipal improvements, predicated upon the theory or principle of equivalents or benefits from such improvements, and levied as a charge upon land or property specially benefited there- by." 1* Illinois. 12. General taxes are imposed for the support of govern- ment and to promote the well being and good order of society, and are, in theory at least, compensated for by the protection afforded by the goveimment to life, liberty and property. It is the burden borne in return for the benefits afforded by civil liberty, and to v^hich all are compelled to contribute upon some recognized basis of equality. Special taxes are not regarded as burdens upon the citizen, but are imposed as an equivalent or compensation for the enhanced value, real or presumptive, of the property, from the public im- provement for which they are assessed.^* Mississippi. 12*. " A local assessment can only be levied on land ; it cannot, as a tax can, be made a personal liability of the tax-payer ; it is an assessment on the thing supposed to the meaning of the thirteenth sec- i3 Holley v. Orange County, 106 tion of Art. XI of the Constitu- Cal. 426, 39 Pae. 790. tion. When a city street is opened, Chambers v. Satterlee, 40 Cal. and for the payment of land con- 497. demned, damages and expenses. The fact that a statute desig- bonds are issuedj and an annual nates as a " tax " that which in percentage is levied on the en- its elements is an " assessment," haneed value of the lots to pay does not make it a "tax." The such bonds, with interest, such question whether it is a " tax " imposition is an assessment, and or an " assessment " must be de- not a tax. cided by the nature of the impo- People ex rel. Doyle v. Austin, sition. 47 Cal. 353. People ex rel. Doyle v. Austin, i* Davis v. Litchfield, 145 111. 47 Cal. 353. 313, 21 L. R. A. 563, 33 N. E. § 13 THE LAW OF SPECIAI. ASSESSMENTS. be benefited. A tax is levied on the whole state, or a known political subdivision, as a county or town. A local assessment is levied on property situated in a dis- trict created for the express purpose of the levy, and possessing no other function, or even existence, than to be the thing on which the levy is made. A tax is a con- tinuing burden, and must be collected at stated short intervals for all time, and without it government cannot exist; a local assessment is exceptional both as to time and locality, — it is brought into being for a particular occasion, and to accomplish a particular purpose, and dies with the passing of the occasion and the accom- plishment of the purpose. A tax is levied, collected and administered by a public agency, elected by and responsi- ble to the community upon which it is imposed; a local assessment is made by authority ab extra. Yet it is like a tax, in that it must be levied for a public purpose, and must be apportioned by some reasonable rule among those upon whose property it is levied. It is unlike a tax, in that the proceeds of the assessment must be ex- pended in an improvement from which a benefit clearly exceptive and plainly perceived must enure to the prop- erty upon which it is imposed, or else the courts will intierfere to prevent its enforcement." ^^ ■ New York. 13. All taxes are burdens, charges or impositions set on persons or property for public use; but an assessment for a supposed benefit is not a tax.-'® " Public taxes, rates and assessments are tihose which are levied and taken out of the property of the person assessed, for some public or general use or purpose, in which he has no direct, immediate and peculiar interest ; being exactions from him toward the expense of carrying on the government, either directly and in general, that of the whole commonwealth, or more immediately and particularly, through the intervention of municipal cor- IS Macon v. Patty, 57 Miss, i« In re Mayor, etc., 11 Johns. 378, 34 Am. Rep. 451. 77; Astor v. New York, 5 Jones & S. 539. 10 OBIGIW, HISTORY AND DEFINITION. §§ 14-16 porations ; and that those charges and impositions which are laid directly upon the property in a circumscribed locality, to effect some "work of local convenience, which in its results is of peculiar advantage and importance to the property specially assessed for the expense of it, are not public, but are local and private." ^'' Ohio. 14. In a general sense, a tax is an assessment, and an assessment is a tax, but there is a plain distinction between them, an assessment indicating those special and local im- positions upon property in the immediate vicinity of an improved street, which are necessary to pay for the improve- ment, and laid with reference to the special benefit which Buch property derives from the expenditure of the money. ^* Pennsylvania. 15. In a general way, a tax is an impost upon the citizen for the support of the government, and municipal assessment is a contribution levied upon the ownership of land to defray the expense of its improvement,^^ Washington. 16. " We think the doctrine is well established at this time that the general use of the term ' taxes ^ in the 17 BuflFalo City Cemetery v. respective shares of contribution Buffalo, 46 N. Y. 506. to any public burden. 18 Lima v. Cemetery Asso., 420 Property taken by the right of Ohio St. 128, 51 Am. Eep. 809; eminent domain is so much be- Hill V. Higdon, 5 Ohio St. 243, yond the individual's share of the 67 Am. Dec. 289; Raymond v. public burden. Cleveland, 42 Ohio St. 522. Every presumption is to be 19 Pettibone v. Smith, 150 'Pa. made in favor of the right of 118, 17 L. E. A. 423, 24 Atl. taxation, and if the case be with- 693; Olive Cemetery Co. v. in the principle of taxation, the Philadelphia, 93 Pa. 129, 39 Am. proportion of contribution and Rep. 732; Erie v. Church, 105 other details are within the dis- Pa. 278; McKeesport v. Fidler, eretion of the taxing power. 147 Pa. 532, 23 Atl. 840. Hammett v. Philadelphia, 65 Taxation exacts money or Pa. 146, 3 Am. Rep. 615. services from individuals as their 11 § 17 THE LAW OF SPECIAL ASSESSMENTS. constitution does not necessarily include what is meant by the term ' assessments,' in connection with street and other local improvements, but applies only to the larger exercise of the sovereign power of the state, either di- rectly or through its inferior instrumentalities of the county, city, town, school district, etc., in raising gen- eral revenues for the support and maintenance of gov- ernment." ^^ —^ Wisconsin. 17. " The theory of all taxation is, that taxes are imposed as a compensation for something received by the tax-payer. General taxes are paid for the support of government in return for the protection to life, lib- erty and property which government gives. Assess- ments of benefits accruing to property by reason of pub- lic improvements rest on the same principle. Both forms of taxation are for public purposes, and both are alike burdens upon property. The only substantial dis- tinction between the two forms is, that general taxation is based upon value and subject to the constitutional rule of uniformity, while assessments are not." ^^ " Assessments, as distinguished from other kinds of taxation, are those special and local impositions upon property in the immediate vicinity of municipal im- provements (such as grading and paving streets, im- proving harbors or navigable rivers within the limits of the municipality, and the like), which are necessary to pay for the improvement, and are laid with reference to the special benefit which the property is supposed to have derived from the expenditure." '^^ Under the foregoing definition and authority, a tax upon all the lots and land of a city, not including any improve- ments thereon, for the purpose of aiding a railroad, was held a tax, and not an assessment, and therefore void as in viola- tion of the rule of uniformity required by the constitution of Wisconsin. 20 Austin T. Seattle, 2 Wash. 22 Hale v. Kenosha, 29 Wis. 667, 27 Pao. 557. 599. 21 Dalrymple v. Milwaukee, 53 Wis. 178, 10 N. W. 141. 12 ORIGIN, HISTOET AKD DEFHiflTION. §§ 18, 19 Comparative definitions. 18. One of the foremost of modem economists attempts to define the two systems as follows : ^* " A special assessment is a compulsory contribution paid once and for all to defray the cost of a specific im- provement to property, undertaken in the public interest, and levied by the government in proportion to the special benefits accruing to the property owner. " A tax is a compulsory contribution from the indi- vidual or association to cover the expenses incurred by tile government in the common interest, without refer- ence to special benefits conferred." Distinction between special assessment and special taxation. 19. Under the Illinois Constitution of 1870, ^* the cor- porate authorities of cities, towns and villages may be vested by the legislature " with power to make local improvements by special assessment or special taxation of contiguous prop- erty, or otherwise," and it is to this limited kind of taxation that this section specially applies. The principal difference seems to be in the mode of ascer- taining the benefits. In the case of special taxation, the imposition of the tax by the corporate authorities is of itself a determination by such authorities that the benefits to the contiguous property would be fully equal to the expense of the improvement ; while in the case of special assessment, the property to be benefited must be ascertained by careful investi- gation, and the burden must be distributed according to the carefully ascertained proportion in which each part thereof will be beneficially affected.*^ Under special taxation, the levy is upon contiguous property only, and the benefit legis- latively determined. Under special assessment, all property 23 Prof. E. R. A. Seligman's 25 Craw v. Tolono, 96 111. 255, Classification of Public Revenues, 36 Am. Rep. 143; White v. Peo- Quarterly Journal of Economies, pie, 94 111. 604; Enos v. Spring- April, 1893. field, 113 111. 65. 24 Sec. 9, Art. IX. 13 § 19 THE LAW OF SPECIAL ASSESSMENTS. benefited by the improvement may be assessed, the district being determined legislatively, but the amount of the tax is determined judicially, and according to the benefits. It was for a long time held by the Supreme Court of that state that the question of actual benefits by special taxation was a question with which a jury had nothing to do, but this opinion was fortunately rendered innocuous by the statute of 1895, amending Sec. 17, Art. IX, of the cities and villages act, providing that the ordinance shall not be conclusive as to benefits, but the owner, if dissatisfied, may have the ques- tion submitted to the court and tried by a jury, as in special assessment proceedings. For other distinctions, the cases cited in the marginal note may be consulted.*® 2e A special assessment differs mainly from special taxation in that the assessment cannot in any case, or under any circum- stances, exceed the benefits which the property assessed will derive from the improvement; and the owner has the right, if dissatis- fied, to have this question passed upon by a jury, whereas in eases of special taxation the jury have nothing to do with the amount, which is by ordinance assessed upon contiguous property. Sterling v. Gault, 117 111. 11, 7 N. E. 471. An ordinance providing for sewer construction, one-half to be paid by general taxation, and one-half by special taxation of contiguous property in propor- tion to the benefits accruing to the respective parcels, is a pro- ceeding by special taxation, and not by special assessment. Gtalesburg v. Searles, 114 111. 217, 29 N. E. 686. Special taxation of contiguous property for local improvement is a thing, in its object and character, very different from general taxation for the purpose of revenue, and a thing very dif- ferent from local taxation,, by municipal corporations, for rev- enue to be applied to other corporate purposes. In the case of taxation by a municipal cor- poration for other corporate pur- poses, it is a constitutional re- quirement that such taxes shall be tmiform in respect to persons and property within the jurisdic- tion of the body imposing tlie same. Craw V. Tolono, 96 111. 255, 36 Am. Bep. 143. Special taxation does not pro- ceed upon the theory that the assessment must not exceed the special benefits received from the improvement. Thus where a part of a lot is taken for an alley and the balance of the lot is damaged by opening the alley, special taxation of the part of 14 OElGIIir, HISTOEY AND DEFINITIOIiT. 20 When the word " tax " includes " special assessments." 20. As we have already seen, special assessment has been denominated a tax in some instances, but not in others. It is a tax in every instance in the sense that it is an enforced contribution from the property owner for the public benefit, but not in a sense that it is a burden, as he receives an equivalent in the shape of the enhanced value of his property. Under the general term of " revenue," all taxes and assess- ments are included,^'^ and the words " tax " and " assess- ment " have been held to be synonymous, and entitled to re- ceive the same construction,^® but it is apparent that this rule of construction is too broad.^* A special assessment for building a sewer is deemed a tax in Pennsylvania,^*" and in other states it is held to be a tax within the meaning and application of certain statutes. Thus, in Massachusetts, un- the lot not taken, in proportion to its frontage as it abuts upon the alley offers no just compen- sation to the owner for his lots. Bloomington v. Latham, 142 111. 462, 18 L. E. A. 487, 32 N. E. 506. The special benefits arising from a local improvement may be assessed upon the property specially benefited, or it may be imposed by special taxation, the two modes differing only in the manner of ascertaining the bene- fits. Lightner v. Peoria, 150 111. 80, 37 N. E. 69. A tax is levied for a general or public purpose and lessens the value of the property, while a special assessment is levied for a special purpose and is made in! the ratio of benefits accruing to the property from the improve- ment. De Clerq v. Barber Asphalt Pav. Co., 167 111. 215, 47 N. E. 367. 27 People ex rel. Johnson v. Springer, 106 111. 542; Herhold V. Chicago, 106 111. 547; Webster v. People, 98 111. 343; Potwin v. Johnson, 106 111. 532. The word " revenue " has been held to embrace all taxes and assessments. People eo) rel. Johnson v. Springer, 106 111. 542; Herhold V. Chicago, 106 111. 547. Includes special assessments. Webster v. People, 98 111. 343; Potwin V. Johnson, 106 111. 532. 2s Baltimore v. Green Mount Cemetery, 7 Md. 517. * 29 Weeks v. Milwaukee, 10 Wis. 242. 30 Olive Cemetery Co. v. Phila- delphia, 93 Pa. 129, 39 Am. Rep. 732; Erie v. Church, 105 Pa. 278; McKeesport v. Fidler, 147 Pa. 532, 23 Atl. 799. 15 § 21 THE LAW OF SPECIAl ASSESSMENTS. der an agreement to give " a good title " to certain land^ " free and clear from all mortgage encumbrances, taxes and mechanic's liens/' the word " taxes " in the covenant includes a sewer assessment,*^ and in Illinois it includes a special assessment as employed in a statute authorizing the fore- closure of a lien.** In Wisconsin, a special assessment is a tax within the meaning of the laws providing for the sale and conveyance of lands for the non-payment of taxes,** and certificates issued upon the sale of lots for the non-payment of such a tax are tax certificates within the meaning of a statute limiting the time for commencement of an action to- cancel, or restrain the issuance of tax certificates.** Although possessing many points of similarity, special as- sessments and taxes are inherently different, and the same' rule of construction where the words are used in statutes will- not be indiscriminately applied.*^ When the word " tax " does not include " special assessment." 21. As will be demonstrated later, special assessments are laid under the taxing power, but that does not of itself constitute the imposition of a tax, and the weight of authority" sustains the general proposition that the use of the word " tax " does not include the former term. The decisions of 31 Williams v. Monk, 179 The life tenant should pay the Mass. 22, 60 N. E. 394. annual tax, but the expenses of a S2 Gauen v. Drainage Dist., 131 special assessment which are 111. 446, 23 N. E. 633. permanent in their nature should A covenant in a lease whereby be borne ratably between the the lessee agrees to pay " all the life-tenant and the remainder- water tax and one-half of all man. other taxes" levied on the de- Huston v. Tribbetts, 171 111. mised premises during the term, 547, 63 Am. St. Eep. 275, 49 N. does not cover special assess- E. 711. ments levied against the prop- 33 Yates v. Milwaukee, 92 Wis., erty for local improvements. 352, 66 N. W. 248. De Clerq v. Barber Asphalt s^Dalrymple v. Milwaukee, 53 Paving Co., 167 111. 215, 47 N. Wis. 178, 10 N. W. 141. E. 367. 35 Chicago v. Colby, 20 111. 614, 16 OEIGIN, HISTORY AND DEFINITION. §§ 22-24 the courts of several of the states holding such to be the law are as follows: Alabama. 22. Provisions, v^hether in statutes or in constitutions, relating to general taxation for state, county and municipal purposes, or either, have no application to special assess- ments laid against abutting property to pay for street im- provements, which have benefited and enhanced the value of the property so assessed.*® Arkansas. 23. A local assessment is not a tax within an exception in a covenant of warranty of the taxes for a certain year,*'^ and the term " taxes," as employed in Sec. 9, Art. VI, of the constitution, will not be construed to include local special assessments for a fund raised to be expended for the im- provement of the property included in the assessment.** Califomia. 24. The words " taxation " and " assessment," in the con- stitution of the state, do not possess the same significance,'* and an assessment for a street improvement is not a tax within the meaning of the constitutional provision that tax- ation shall be in proportion to value.*" The words " taxa- tion " and " taxed," in Sec. 13, Art. XI, relate to such gen- eral taxes upon all property as are levied to defray the ordinary expenses of the state, county, town and municipal governments, and not to assessments levied on the lots front- 36 Mayor, etc. v. Klein, 89 Ala. ssMcGehee v. Mathis, 21 Ark. 461, 8 L. E. A. 369, 7 So. 386. 40. Overruling the earlier cases of 39 Taylor v. Palmer, 31 Cal. Mayor, etc. v. Dargan, 45 Ala. 240. 310, and Mayor, etc. v. Eoyal *o Chambers v. Satterlee, 40 St. E. Co., 45 Ala, 322. Cal. 497; Smith v. Farrelly, 52 37 Sanders v. Brown, 65 Ark. Cal. 77. 498, 47 S. W. 461. 2 lY §§ 25, 26 THE LAW OF SPECIAi ASSESSMENTS. ing on a city street to pay the expense of its improvement.*^ While the term " assessment " is often popularly used as a synonym for taxation, this is not its strict legal significance,*^ nor does the fact that a statute designates as a tax that which in its elements is an assessment, make it a tax. The ques- tion whether it is a " tax " or an " assessment " must be decided by the nature of the imposition.** Thus, the author- ity to compel local improvements, at the expense of those immediately benefited, is not taxation, though referable to the taxing power,** whereas a tax imposed on all the prop- erty in a district, to be used in constructing levees to protect such district from overflow, is a tax and not an assessment.*'' Colorado. 25. The word " tax," as used in the state constitution, refers to the ordinary public taxes, and not to assessments for local improvements in cities and towns.*' Connecticut. 26. An assessment for benefits conferred in laying out a highway is, in a general sense, a tax, because it is an exercise of the taxing power ; but it is local, special and limited to a class of persons interested in a local improvement who are assumed to receive an equivalent for the amount of the levy *i Emery v. San Francisco Gas of the improvement, and no de- Co., 28 Cal. 345. mand can be made a set-off *2 Holley V. Orange Co., 106 against it unless expressly so Cal. 420, 39 Pae. 790. authorized by statute. 43 People ex rel. Doyle v. Aus- Himmelmann v. Spanagel, 39 tin, 47 Cal. 353. Cal. 389. ** Hagar v. Yolo County, 47 An assessment for street im- Cal. 222. provement is a tax. *5 People V. Whyler, 41 Cal. Whiting v. Quackenbush, 54 351. Cal. 306. An assessment for the improve- *6 Denver v. Knowles, 17 Colo, ment of streets is a municipal 204, 17 L. R. A. 135, 30 Pac. tax, levied by the corporation 1041, overruling Palmer v. Way, upon the property adjacent to 6 Colo. 106. the street, to defray the expenses 18 OEtGIN, HISTORY AND DEFIliriTIOH-. §§ 27-29 by reason of the benefits resulting from the improve- ment.*^ Georgia. 27. " Taxes and assessments," in the language of an amendment to the charter of Augusta, in 1847, were the general taxes and assessments the city was authorized by law to make, and not special assessments on abutting prop- erty.** ' Illinois. 28. An assessment for opening a street is not a tax. *® Indiana. 28^. A charter provision authorizing a city to sweep the streets, and to pay for the same by assessing the abutting owners, is a local assessment, and not a tax, and does not fall within the constitutional provision requiring an equal and uniform rule of taxation."* Kansas. 29. The word " assessment," as used in Art. XII, of the constitution, providing for " the organization of cities, towns *' Bridgeport v. N. Y. & N. H. necessary to appropriate private R. Co., 36 Conn. 255, 4 Am. property to public uae, by the Rep. 63. opening, widening or extension *8 Augusta V. Murphy, 79 Ga. of a street in a town or city, 101. the owner whose property is thus *9 " It is the established doe- appropriated must have eompen- trine of this court that assess- sation made to him, by the public ments of this character are not at large, by the city, or by the taxes. It is not, therefore, em- persons deriving a pecuniary bene- braeed in or regulated by the fit from the improvement. That provisions of the Constitution to the legislature may require com- which reference has been made, pensation to be made in either of The Constitution has provided these modes, we conceive there can that private property shall not be no question." Peoria v. Kid- be appropriated to public use, der, 26 111. 351. without just compensation being soReinken v. Fuehring, 130 made to the owner. Under this Ind. 382, 15 L. R. A. 624, 30 Am. provision, when it becomes St. Rep. 247, 30 N. E. 414. 19 §§ 30—32 THE LAW OF SPECIAL ASSESSMENTS. and villages, and their power of taxation, assessment, bor- rowing money," etc., means a charge upon adjacent prop- erty for improvements.'^ Louisiana. 30. Local assessments on property specially benefited by the work, as an equivalent for the direct benefits conferred, are not considered as taxes within the meaning of the consti- tutional restrictions on the power of taxation.®* Maryland. 31. The word " tax " means a burden, charge or imposi- tion put on persons or property for public uses ; but to pay for opening a street in a ratio to the benefit derived from it, is not a " tax " within the meaning of an exemption pro- viding that certain property shall not " be taxed by any law of the state." " Missouri. 32. " Taxes are charges or burdens imposed by the legis- lature for public purposes, or to defray the necessary expenses in administering the government." An assessment is not a tax, because it is not a burden, but an equivalent or com- pensation for the enhanced value which the property derives from the improvement."* And the reference in Sec. 11, Art. X of the constitution to " special taxes " does not em- brace special assessments for local improvements, although confessedly based on the taxing power.'" 51 Hines v. Leavenworth, 3 o* Sheehan v. Good Samaritan Kan. 186. Hospital, 50 Mo. 155, 11 Am. See, also. Weeks v. Milwaukee, Eep. 412. 10 Wis. 242. 55 Lamar W. & E. L. Co. v. Lar ssChamock v. Fordoche, etc., mar, 128 Mo. 188, 32 L. E. A. Co., 38 La. An. 323. 157, 26 S. W. 1025, 31 S. W. 03 Mayor, etc., v. Green Mount 756. Cemetery, 7 Md. 517. 20 OBIGIN, HISTORY AND DEnNITION. §§ 33, 34 New York. 33. " Our laws have made a plain distinction between taxes, which are burdens or charges imposed upon persons or property to raise money for public purposes, and assess- ments for city and village improvements, which are not re- garded as burdens, but as an equivalent or compensation for the enhanced value which the property of the person assessed has derived from the improvement." ®® . Oregon. An assessment is in the nature of a tax. "^ . Pennsylvania. 34. Although laid under the taxing power, special assess- ments are not taxes strictly speaking.®* B6 Bronson, J., in Sharps v. Speir, 4 Hill, 76. See, also. Mix v. Ross, 57 111. 121. 57 King V. Portland, 2 Or. 146. 68 Northern Liberties v. St. John's Church, 13 Pa. St. 104; Pray v. Northern Liberties, 31 Pa. St. 69. The question being as to the liability of the lessee of a coal mine to pay for constructing a sewer and paving a street, under the covenants of a lease requir- ing him to pay all state and local taxes, the court say : " It is constructed entirely for the benefit and advantage of the sur- face and the surface owner; moreover it is permanent and will continue in use long after the determination of defendant's lease. Why should he pay for it, when in point of fact he has never agreed to such payment? Because it is a tax, says the lessor, and therefore is included within the burdens which the tenant agreed to pay. But it is not a tax literally, and nothing in the lease defines any expressed intent by either party that it should be paid by the lessee. To this it is replied that this court has said an assessment is a tax, or is to be considered as a tax, in a certain class of cases. But to this it can be well answered that this is not a case belonging to that class, and therefore the contract of the parties must be adjudged by the ordinary rules of interpretation, and, being so adjudged, all the authorities con- cur, and manifest legal principles require, that it should be de- clared that the defendant never agreed to pay the assessment in question either expressly or by way of necessary implication." Pettibone v. Smith, 150 Pa. St. 118, 17 L. E. A. 423, 24 Atl. 693. 21 §§ 35, 36 THE I4AW OF SPECIAL. ASSESSMENTS. Texas. 35. The word " taxes" refers to general taxes, and not to special assessments, either under the constitutional provision, Sec. 50, Art XVI, or the statute prohibiting a delinquent from setting up the statute of limitations in proceedings to recover " any taxes due the municipality." *** Taxes and assessments defined. 36. Taxes are the enforced proportional contributions from persons and property, levied by the state by virtue of its sovereignty for the support of government and for all public needs,®** and the power of taxation is one which the legislature takes, from the law of its creation, to impose taxes for such purposes,®^ the term itself, as used in the constitution, being applied only to the revenues raised and applied for the purpose of defraying the general expenses of government.®* The term " assessment," as ordinarily used, is one of very wide scope. It has been called an " adjusting the shares of contribution by several towards a common beneficial object, according to the benefit received," ®* and has also been con- strued to mean not merely the act of the assessor, but the completed act of all the agencies employed in determining the amount and value of property available for taxation. As used in the constitution of Wisconsin, Sec. 3, Art. XI, it has reference to the system of special taxation for municipal improvements existing at the adoption of the constitution, and is a clear recognition of the existence of the power to lay a special assessment.®* 08 Allen V. Galveston, 51 Tex. ei Taylor v. Palmer, 31 Cal. 302; Higgins v. Bordages, 88 240. Tex. 458, 53 Am. St. Rep. 770, 31 62 King v. Portland, 2 Or. 146. S. W. 52, 803 ; Galveston v. Trust 63 Bouvier, Law Diet., Palmer Co., 46 C. C. A. 319, 107 Fed. v. Stumph. 29 Ind. 329. 325. 84 Weeks v. Milwaukee, 10 soCooley on Taxation (3d Wis. 242. Ed.), 1. 22 OEIGIN, HISTOEY AND DEriNITION. §§ 37, 38 In California ^^ the word " assessment " is employed in the constitution to represent those local burdens imposed by municipal corporations upon property bordering upon an improved street, for the purpose of paying the cost of the improvement, and laid with reference to the benefit the property is supposed to receive from the expenditure of the money. Property not benefited by the improvement cannot be subjected to a tax for it. 37. Among different more exact definitions of the term " special assessment," or " local assessment," are the fol- lowing : " A local assessment is a contribution for the purpose of constructing works of public improvement for the ad- vantage of a particular district, and not to be levied upon taxable property generally, but upon particular- ized property to be benefited thereby, and with direct reference to such benefit as the property may receive therefrom." ®® " A special or local assessment is a burden imposed by law upon real property for a public improvement, the extent of the burden being determined by the special benefits which inure to the assessed property by reason of the improvement." "'' " A special imposition levied in order to defray the expense of a specific improvement, upon those property owners to whom particular advantages accrue, and in the ratio of those advantages." *^ 38. " Local assessments are not ordinary taxes levied for the purpose of sustaining the goverimient, but they are charges laid upon individual property because the property on which the burden is imposed receives a special benefit which is different from the general one which the owner enjoys with others as a citizen of the commonwealth." ®* «B Taylor v. Palmer, 31- Oal. 68 Eosewater, Special Assess- 240. ments, 85. «« Munson v. Commissioners, «» Elliott, Eoads and Streets 43 La. Ann. 15, 8 So. 906. (2d Ed.), Sec. 543, and cases 67 25 Am. and Eng. En. Law cited. (2d Ed.), 1168. 23 § 38 THE LAW OF SPECIAL ASSESSMENTS. " Special assessments are a peculiar species of taxa- tion, standing apart from the general burdens imposed for state and municipal purposes, and governed by prin- ciples that do not apply universally. The general levy of taxes is imderstood to exact contributions in return for the general benefits of government, and it promises nothing to the persons taxed beyond what may be an- ticipated from an administration of the laws for indi- vidual protection and the general public good. Special assessments, on the other hand, are made upon the as- sumption that a portion of the community is to be spe- cially and peculiarly benefited in the enhancement of the value of property peculiarly situated as regards a contemplated expenditure of public funds; and, in ad- dition to the general levy, they demand that special con- tributions, in consideration of the special benefit, shall be made by the person receiving it. The justice of de- manding the special contribution is supposed to be evi- dent in the fact that the persons who are to make it, while they are made to bear the cost of a public work, are at the same time to suffer no pecuniary loss thereby, their property being increased in value by the expendi- ture to an amount at least equal to the sum they are re- quired to pay. That is the idea that underlies aU these levies." '"> 70 Cooley, Taxation (3d Ed.), pose of paying the expense of 1153. And see, also. 111. Cent. R. that improvement, are taxes. Co. V. Deeaturj 147 U. S. 197, Such assessments are enforced 37 L. ed. 134, 13 Sup. Ct. Eep. proportional contributions of a 293, 294; Peake v. New Orleans, somewhat special kind, made in 139 U. S. 342, 35 L. ed. 131, 11 invitum, by virtue of legislative Sup. Ct. Rep. 541, 544; Daly v. authority conferred upon the Morgan, 69 Md. 460, 1 L. R. A. municipality for that purpose, 757, 16 Atl. 300; Ittner v. Rob- upon such terms and conditions inson, 35 Neb. 133, 137, 52 N. W. as the legislature within con- 846, 847; Pettit v. Duke, 10 Utah, stitutional limits sees fit to im- 311, 37 Pae. 568, 569. posei " Local," or " Special Assess- Sargent v. Tuttle, 67 Conn'. ments" defined. 162, 32 L. R. A. 822, 34 Atl. Connecticut. 1028, 1029. Special assessments in munic- Illinois. ipalities upon specific property A special assessment is an specially benefited by the local assessment to pay for an im- public improvement, for the pur- provement for public purposes on 24 OEIGIN, HISTORY AND DEFINITION. 39 legal theories of the power of special assessment. 39. The power of special assessment, although one which has been exercised for many generations, has only been a potent factor in local affairs within the last half century. real property which is by reason of the locality of the improve- ment specially benefited. Mor- gan Park V. Wiswall, 155 111. 262, 40 N. E. 611, 613. A special assessment for a public improvement under the statutes in Illinois is a species of taxation, ,fond is authloijlzed only as an exercise of the tax- ing power. A special assessment should not be levied except for the purpose of making a needed public improvement. Critchfield V. Bermudez Asphalt Paving Co., 171 111. 466, 42 L. E. A. 347, n N. E. 552. " Special Assess- ment," as used in Act of April 19, 1872, Art. 9, Sec. 9, relating to ihe incorporation of cities and villages, and limiting the power of corporate authorities to make public improvements by special assessment or special taxation, to contiguous property only, means an assessment on property specially benefited, without re- gard to whether it is contiguous or not. Guild v. Chicago, 82 111. 472. A special assessment is a charge on the specific land bene- fited, and not against the owner. Hudson V. People, 188 111. 103, 80 Am. St. Rep. 166, 58 N. E. 964, 965. " General taxes " are levied on the ground of general public benefits, while " special assess- ment " is a peculiar species of taxation to pay for local improve- ments, which recognizes the gen- eral public interest and benefit, but rests upon the supposition that a portion of the public are specially benefited in the increase of value to their property. Shurt- leflf V. Chicago, 190 111. 473, 60 N. E. 870. Louisiana. Local assessments are a species of taxes on supposed benefits. Shreveport v. Prescott, 51 La. Ann. 1895, 46 L. R. A. 193, 26 So. 664, 672. The essential characteristic of a local assessment is that it is levied on particularized property, and not on property generally. This feature is the corollary of what in theory, if not in actual practice, is the fundamental prin- ciple of the law of local assess- ment — that the tax should be levied on each particular piece of property in proportion to the benefit that is to be derived, not supposedly, but actually, from the expenditure of the avails of the tax. The mere localness of the tax is not necessarily a, dis- tinguishing feature, nor is the fact that the tax was imposed only after a consultation of the taxpayers, for local assessments may be, and often they are, levied without consultation with the contributors; hence a bridge tax levied under authority of the Constitution, on all the property generally in a ward, is not a local assessment, even though for the imposition of it a vote of the taxpayers is required. Griggsry 25 39 THE liAW OF SPECIAX ASSESSMENTS. Many theories have been offered, from time to time, as to the source of the power, and upon what particular attribute of sovereignty must we look as the one which must father the manifest benefits of the system, as well as to correct its Const. Co. V. Freeman, 108 La. 435, 58 L. E. A. 349, 32 So. 399, 400. A local assessment is not a tax, but a consideration for the enhancement of the value of the property of the community. It sot being a tax eo nomine, it is not governed by the provisions of the Constitution on the general subject of taxation. Vicksburg S. & P. E. Co. V. Goodenough, 108 La. 442, 66 L. E. A. 314, 32 So. 404, 410. MaryUmd. A local assessment is a tax levied occasionally, as may be re- quired, on a limited class of per- sons interested in local improve- ments, and who are presumed to be benefited by the improvement over and above the ordinary bene- fit which the community in gen- eral derives from the expenditure of the money. Gould v. Balti- more, 59 Md. 378, 380. Minnesota. The terms " local " and " vicin- ity," used in connection with assessments for improvements, are not to be taken as indicating any definite limits, but are usu- ally understood to extend to the real property reported by the assessors to be actually benefited to a certain amount. State v. District Court, 33 Minn. 295, 23 N. W. 222, 229. Nebraska. " Special Assessments " are a peculiar species of taxation, standing apart from the general burdens imposed for state and municipal purposes, and gov- erned by principles that do not apply generally. They are made upon the presumption that a por- tion of the community is to be specially and peculiarly benefited in the enhancement of the value of the property peculiarly situ- ated as regards u contemplated expenditure of public funds. Itt- ner v. Eobinson, 35 Neb. 133, 137, 52 N. W. 846, 847. (Cit- ing Cooley on Taxation, like text.) See, also, Daly v. Mor- gan, 69 Md. 460, 1 L. E. A. 757, 16 Atl. 287, 300; Pettit v. Duke, 10 Utah, 311, 37 Pae. 568, 569. A special assessment is a tax which, owing to the direct benefit to be received by certain prop- erty, is specially levied against the property so benefited in ac- cordance with the benefits. Wil- son V. Auburn, 27 Neb. 435, 43 N. W. 257, 259. Special assess- ment Is taxation imposed upon property proportionate to the benefit which it has received from such improvement, the ex- pense of which is to be defrayed by the money realized from the special assessment. The principle which underlies and sustains all special assessments is that the value of the property assessed is enhanced to an amount at least equal to the assessment, which principle cannot be departed from without there being a taking of private property for public use 26 OEIGIN, HISTOKT AND DEFINITION, 39 equally manifest abuses. In theory, it is an equivalent, or exchange, by which the money or property of the land owner is taken from him, and turned over for local public use, for some purpose of a public nature which results also in a pri- vate and peculiar benefit to the property upon which the without compensation. Hanscom V. Omaha, 11 Neb. 37, 7. N. W. 739, 741. Special assessment dif- fers from general taxation in this: that the imposition can ex- tend only to the extent of special benefits received, while the bene- fits which the taxpayer receives in return for general taxation are the enforcement of the laws, pro- tection to life and property, and such other benefits as are shared by the public at large. The prin- ciple which underlies special as- sessments is that the value of the property is enhanced to an amount at least equal to the as- sessment. Beatrice v. Brethren Church, 41 Neb. 358, 59 N. W. 932, 934. The words " special assess- ment," as used in statutes con- ferring power on cities to make such assessments, refer to and mean the same as " special tax- ation," namely, special imposi- tions on property to the extent of benefits received by it for im- provements. Ibid. Vew Jersey. There is a fundamental distinc- tion between the plan of special assessments and taxation. Special assessments, such as those for im- proving streets, are benefits, not burdens, and are imposed upon property because the equivalent inheres in or upon the property the moment the assessment is made. Herrman v. Guttenberg, 6? N. J. L. 605, 43 Atl. 703, 706. 'New Yorh. Local or private taxes and as- sessments are those charges and impositions which are laid on property in a circumscribed lo- cality, to effect some work of lo- cal convenience, beneficial to the property specially assessed for the expense of it. Buffalo City Cemetery v. Buffalo, 46 N. Y. 506, 509. "North Carolina. " Special assessments," as the term is used with reference to municipal corporations, are impo- sitions in the nature of taxes levied by the city for the pay- ment of local improvements, which attach by force of law to the abutting property benefited there- by. Raleigh v. Peace, 110 N. C. 32, 17 L. R. A. 330, 14 S. E. 521, 622. Oregon. " Special assessments," such as those made for street improve- ments, etc., are founded on the theory that a portion of the com- munity is to be specially benefited in the enhancement of their prop- erty by reason of the contem- plated expenditure of the public fund, and is therefore, in addition to the general levy, required to make special contributions for the intended purposes. In theory, at least, the property assessed is supposed to be benefited in the amount corresponding to the as- 27 § 39 THE LAW OF SPECIAI. ASSESSMEITTS. imposition is laid, and therefore inures to -the advantage of its owner. "It is based upon the theory that the owner of the property assessed is to receive a benefit corresponding with the amount assessed, and that this is to be paid to meet the cost and expense of the improvement. It is, therefore, of no consequence what the value of the lots may be, provided the enhanced benefit is equal to the assessment." ''^ It is not in the nature of a contract, for the exchange is a forced one, made by governmental authority, not only without the con- sent of the property owner, but in very many cases against his actual wishes and active opposition. A review of some of the opinions of the courts will aid us in determining the source of this power. One able jurist, in a dissenting opin- ion,'^^ arrived at the conclusion that it was attributable neither to the power of taxation, nor of eminent domain, but that " it is a distinct power vested in the councils by the charter, to enable them to perform their important function of providing suitable streets and highways for the city, to determine what proportion of the cost, if any, shall be paid by the city, and what portion the parties benefited shall pay." Although the theory is very ingenious, it is against almost all the authorities, and overlooks the posts planted in its way by the provisions of our written constitutions. sessment by its increased value on poses of sustaining the govern- aecount of the improvement. ment, but they are charges on Mercer v. Kelly, 20 Or. 86, 25 individual property because the Pac. 73, 77. property on which the burden is South Dakota. imposed receives a special benefit, " Special assessment " ordinarily which is different from the gen- means money ordered or levied for eral one which the owner enjoys, some municipal purpose, to which in common with others, as a citi- the funds so collected are to be zen of the commonwealth. Sea- specifieally applied in making the nor v. Whatcom Co., Com'rs, 13 local improvements. Winona & Wash. 48, 42 Pac. 552, 555. St. P. R. Co. V. Watertown, 1 S. Legal Theories. D. 46, 44 N. W. 1072, 1073. 7i In re Mead, 74 N. Y. 216. Washington. 72 Norfolk v. Ellis, 26 Gratt. " Local assessments " are not 224. ordinary taxes levied for the pur- 28 § 40 — Under the police power. 40. Owing probably to the fact that the earliest reported cases were those for drains and sewers, the overflow of rivers, and drainage of marshes, and being for sanitary matters di- rectly affecting the public health, the power of special assess- ment was most naturally attributed to the police power. The elasticity and limit of expansion of this sovereign power are so great that it was most natural the courts should seize the first theory that seemed to fit the nature of the case, and adopt it as the source of power. To this day, sidewalk, sewer and levee assessments are made, and drainage laws passed in many instances, avowedly under this power. ^* In Texas, the power to compel both street and sidewalk im- provements has been attributed to the police power,''* while in Colorado, it is held to be the sole foundation of the au- thority to levy a special assessment under the constitution of that state although the court authorizes the imposition to be apportioned according to benefits, and rather illogically held an ordinance void as not giving due notice, while dis- tinctly repudiating the power of taxation as the source of authority. '''' In Tennessee, pavements are constructed under this power, the court expressly holding that to require the owners of town lots to construct pavements along their side- 73Cooley on Taxation (3d Brown v. Denver, 7 Colo. 305, 3 Ed.), p. 1128, et seq. Pae. 455. A statute authorizing cities to An assessment authorizing the construct sewers and to lay the cost of sewers to be levied on necessary pipe for house connec- property in a district according tions from the sewer to the curb to area and not based on value, line of each abutting lot, and benefits or improvements, is a authorizing the cost thereof to be valid assessment under the police charged upon the abutting prem- power. Keese v. Denver, 10 Colo, ises, is not unconstitutional, but 112, 15 Pac. 825. is an exercise of the police power. But the council may prescribe Van Wagoner v. Patterson, 67 N. the rule of apportionment with J. L. 455, 51 Atl. 922. reference to special benefits. 74 Adams v. Fisher, 63 Tex. Pueblo v. Robinson, 12 Colo. 593, 651. 21 Pac. 899. TB Palmer v. Way, 6 Colo. 106; 29 § 41 THE LAW OP SPECIAL ASSESSMENTS. walks, is not an exercise of the taxing power, nor is it a taking of private property for public use.^® 41. All the authorities agree that the constitutional pro- vision against taking private property without compensation is not intended as a limitation on the police power, subject to which all property is held.'''' And Judge Cooley is au- thority for the principle that the construction of sidewalks and footwalks is more distinctly referable to the police power than to the right of taxation.''* 76 Washington v. Mayor, 1 Swan, 177; Mayor v. Maberry, 6 Humph. 368, 44 Am. Dee. 315; Whyte V. Mayor, 2 Swan, 364. " It is contended that this or- dinance is in the nature of a tax levied on the owners of lots, and as such, that it is unconstitu- tional, because it is unequal. A tax is a, sum which is required to be paid by the citizen annually for revenue for public purposes. But this ordinance levies no sum of money to be paid by the citi- zens. It requires a duty to be performed for the comfort and well being of the citizens of the town. It is in the nature of a nuisance to be removed. Mayor v. Maberry, 6 Humph. 368, 44 Am. Dec. 315. 77 " The clause prohibiting the taking of private property with- out compensation, is not intended as a limitation of the exercise of those police powers which are necessary to the tranquillity of every well-ordered community, nor of that general power over private property which is neces- sary for the orderly existence of all governments. It has always been held that the legislature may make police regulations, al- though they may interfere with the full enjoyment of private property, and though no compen- sation is given." Sedgwick, Stat. & Const. Law, 434. " Every citizen holds his prop- erty subject to the proper exer- cise of this power, either by the state legislature directly, or by public or municipal corporations to which the legislature may delegate it. . . . It is well settled that laws and regulations of this character, though they may disturb the enjoyment of in- dividual rights, are not unconsti- tutional, though no provision ia made for such disturbances. . . . If he suffers injury, it is either damnum absque irir juria, or, in the theory of the law, he is compensated for it by shar- ing in the general benefits which the regulations are intended and calculated to procure." 1 Dillon Mun. Corp. (4th ed.) 212. 78 " The cases of assessments for the construction of walks by the side of streets in cities and other populous places are more distinctly referable to the power of police. These foot-walks are not only required, as a rule, to be put and kept in proper condition 30 §§ 42, 43 42. The Supreme Court of Mississippi, in a very able opinion,'^® in discussing this question, says: " The police power is incapable of exact definition and of a precise limitation. It seems to be a power to which are referred all governmental acts which are in- capable of arrangement under any other distinct head, and which are at the same time justifiable, as internal regulations having in view facility of intercourse be- tween citizen and citizen, the preservation of good order, good manners and morals, and the health of the public." But while conceding to it all the power prescribed, the court hold in the same case, a local assessment requiring the lot owner to improve the street in front of his property, as unconstitutional, because there is no apportionment of the tax, although the making and repairing of the sidewalk may be imposed under the police power. 43. The drainage laws of most of the states which have enacted such statutes, frequently provide that they are for the benefit of the public health, and avowedly Under the police power.*** The Wisconsin statute for drainage and for use by the adjacent proprie- the peculiar interest such owners tors, but it is quite customary to have in the walks, and because confer by the municipal charters their situation gives them pecul- full authority upon the munici- iar fitness and ability for per- palities to order the walks of a forming with promptness and con- kind and quality by them pre- venien'ce, the duty of putting them scribed to be constructed by the in proper state, and of afterwards owners of adjacent lots at their keeping them in a condition suit- own expense, within a time lim- able for use. Upon these grounds ited by the order for the purpose, the authority to establish such and, in case of their failure so to regulations has been supported construct them, to provide that it with little dissent." shall be done by the public au- Cooley, Taxation (3d Edi- thorities, and the cost collected tion), 1128. from such owners or made a lien f 9 Macon v. Patty, 57 Miss, upon their property. When this 378, 34 Am. Rep. 451. is the law, the duty must be so The legislature has power to •looked upon as being enjoined as authorize the organization of a regulation of police, because of companies for the purpose of 31 § 44 THE LAW OF SPECIAL ASSESSMENTS. reclamation of lands, and providing for the payment of the expense by a special assessment on the property benefited, has been held to be a valid exercise of this power; *^ and in Minnesota, the drainage of wet lands " to promote the public health and welfare " is a valid exercise of the same power, and under it the expense may be imposed upon the property benefited.** And, by analogy, a statute authorizing a city to assess a lot on which a nuisance exists with the entire cost of abating the nuisance by improving the lot, does not violate any constitutional provision, being an exercise of this power.** Under the Maryland statute of 1797, giving au- thority " to tax any particular part of the city, for paving the streets, lanes or alleys therein, or for sinking wells or erecting pumps, which may appear for the benefit of such particular part or district," the preservation of the public health is a benefit within the meaning of the act,** and it may be stated as a general proposition that any legislative act for the protection of the public is not invalidated merely because it creates a burden upon, or results in a depreciation of property.*® 44. Other subjects of municipal supervision, desirable for sanitary purposes, or those of safety, such as sprinkling and sweeping streets,*® and removing snow from sidewalks, are draining swamp lands, and such 82 McGrhee v. Commissioners, 84 authority is derived from the po- Minn. 472, 88 N. W. 6; Dowlan lice power. v. Sibley Co., 36 Minn. 430, 31 O'Reiley v. Kankakee, &c., N. W. 517; Lien v. Commission- Draining Co., 32 Ind. 169. ers, 80 Minn. 58, 82 N. W. 1094. Construction of drains is within sa Horbaeh v. Omaha, 54 Neb. the police power, and the expense 83, 74 N. W. 434. of their construction may be im- 84 Mayor, &e. v. Hughe's Admr., posed without consideration of 1 Gill & J. 480, 19 Am. Dec. 243. benefits conferred. 85 Given v. State, 160 Ind. 552, Sessions v. Crunkilton, 20 66 N. E. 750. Ohio St. 349. 88 As the general public has an 81 Bryant v. Eobbins, 70 Wis. interest in keeping the streets 258, 35 N. W. 545; Donnelly v. clean, » city may, in the exercise Decker, 58 Wis. 461, 46 Am. Rep. of the police power conferred upon 637, 17 N. W. 389. it by the state, order them swept; 32 § 45 upon their face referable to this power; and it is somewhat noticeable that as to the former subject, courts are divided as to the power to lay a charge by way of special assess- ment, as will be seen later; while as to the latter subject, while courts are divided as to the right to enforce an ordi- nance providing a fine for failure to remove snow from the walk,*'' no case supporting an attempt to levy a special assessment, as such, for such removal, is to be found in the books. But with the irresistible and marvelous growth of modem cities, the power of police, elastic though it be, could not be stretched to keep pace with the necessities presented, and it was soon definitely settled that it could not embrace the various improvements of acquiring land, opening, grading and paving streets, and other cognate matters. — Tinder the power of eminent domain. 45. The process of evolution is perhaps as noticeable in law as in any of the exact sciences. In no particular branch is it more marked than in the law appertaining to local and as the abutting owner derives move snow from the sidewalk as a benefit from such sweeping not required by ordinance. Refused, enjoyed by the general public, he Shaw, C. J. "We think it is may be assessed to pay the ex- to be regarded as a police regula- pense; and such assessment does tion, requiring a duty to be per- not amount to a taking of private formed, highly salutary and property without compensation advantageous to the citizens of a and without due process of law. populous and closely built city, And as such owner is fully com- and which is imposed upon them pensated for his outlay in the en- because they are so situated as hanced value of his property, he that they can most promptly and may also be taxed generally along conveniently perform it, and it is with the remainder of the public laid, not upon a few, but upon a for cleaning other streets in which numerous class, all those who are the public alone have an interest. so situated, and equally upon all Reinken v. Fuehring, 130 Ind. who are within the description 382, 15 L. R. A. 624, 30 Am. St. composing the class." Rep. 247, 30 N. E. 414. Petition of Nathaniel Goddard, 87 Petition for certiorari to re- 16 Pick. 504 ( 1835 ) , 28 Am. Dee. view action of police court in fin- 259. ing petitioner for failure to re- 3 33 § 46 THE LAW OF SPECIAl ASSESSMENTS. or special assessments. With the great growth of cities in the past half century, coupled with the demand for improved conditions of living, new and complex legal problems were presented for solution. Extending a street through a city suburb, merely for the accommodation of a rapidly grow- ing population, involving the condemnation of land under the power of eminent domain, naturally turned the eyes of the courts to that sovereign power as the one to invoke as authority for the acts involving a derogation of private right, the police power being manifestly insufficient to cover the case. 46. The sovereign power of taxation was in most of the states coupled with a constitutional provision requiring its exercise to be " equal and uniform," which was a manifest impossibility in many cases of special assessment, even without considering the underlying principle of benefits. And because of this difficulty, many courts, especially in their earlier decisions, were inclined to rest the exercise of all authority for special assessment upon the power of eminent domain, and for a time theory and practice went hand in hand. The extension of city streets resulted al- most universally in an increase in the value of adjoining property, and what more conformable to natural equity and justice than that the landholder should compensate by the surrender of his land necessary for the street, for the greatly enhanced value to the remainder. This plan evaded all questions as to equality and uniformity of taxation, and under the Illinois Constitution of 1848, the Supreme Court of that state upheld the authority to levy special assess- ments under the power of eminent domain, upon the theory that both the exercise of the right of eminent domain and the power of taxation are limited, and the rule was de- duced, not from general principles, but from the constitu- tion itself, that there did not exist, either in the legislature or in any of the subdivisions of state sovereignty, any power of apportioning the taxes, whether of a general or of 34 OEIGIN, HISTOEY AND DEFINITION. § 47 a local character, except on the principles of equality and uniformity.®^ 47. But the same court held that the doctrine of emi- nent domain is strictly applicable only to the condemnation of property, and not to the levy of a tax,*^ and that the power of taxation is essential to the exercise of the power of eminent domain.®" But when it was decided that the 88 It is apparent to all who read it that our constitution is very stringent in regard to equal taxation whether general or local. Take away the assessment of in- juries and benefits, the special assessments become the same in any substance as taxes. This will not be denied. Why then should not the same principles apply? But the constitution while fixing the rule in regard to taxation is silent in regard to special assess- ments. Why was this since they were well known means at the time of the adoption of the con- stitution of local improvements? Undoubtedly it seems to us, be- cause its forms regarded them as a proceeding under the right of eminent domain, and the property of the citizen as sufficiently pro- tected under the clause requiring just compensation. Chicago V. Larned, 34 111. 203; Ottawa V. Spencer, 40 111. 211; Bedard v. Hall, 44 111. 91; Wright V. Chicago, 46 111. 44; Adams Co. V. Quiney, 130 111. 566, 6 L. E. A. 155, 22 N. E. 624. See also. Grif- fin V. Dogan, 48 Miss. 11. If a special assessment is not taxation it must be an exercise of the power of eminent domain, and consequently special assessments which do not provide for compen- sation in some mode, either by 35 money or by benefits, will be in- valid. Chicago V. Larned, supra. 89 Hessler v. Drainage Commis- sioners, 53 111. 105; Harward v. St. Clair &c. Drainage Co., 51 111. 130. »" Where the provision made for the raising of money to pay for land condemned for a public use is the levy of a tax, such tax levy is the mode of obtaining the compensation awarded to the own- er. In such ease, the power of taxation and the right of emi- nent domain are made to go hand in hand, and the one aids the other. The constitutional exercise of the right of eminent domain constitutes a resort to the power of taxation. The latter power, when thus invoked as a means of providing compensation for the taking of private property, is nec- essarily restricted by the consti- tutional requirement in regard to such taking. The tax power must be so exercised as to give the property owner a just compensa- tion, and hence cannot be exer- cised arbitrarily. Bloomington v. Latham, 142 111. 462, 18 L. R. A. 487, 32 N. E. 506. The proceeding by which a city takes private property for public use, under its power of eminent § 47 THE LAW OF SPECIAL ASSESSMENTS. value of land taken for public use could not be compensated in benefits to the residue of the tract, but must be made in money,® 1 it was generally admitted that the right of eminent domain could no longer be successfully appealed to as the authority for special assessments, and the opinion of Judge Kuggles, in The People v. Mayor, etc. of Brooklyn, 4 N. T. 419, was such a masterly one, and so profoundly reasoned, that it gradually percolated through all sister jurisdictions, and placed the authority unmistakably upon the taxing power, where it remains to-day.®* domain, is distinct in character from that by which it raises money, under its power of taxa- tion, to make compensation for property so taken. The first can- not be exercised except in obedi- ence to the constitutional mandate that the compensation must be first ascertained by a jury. But the constitution does not require benefits to be so ascertained. St. Louis V. Buss, 159 Mo. 9, 59 S. W. 969. See, also, Fair- child V. St. Paul, 46 Minn. 540, 49 N. W. 325; State v. Eapp, 39 Minn. 65, 38 N. W. 926; State v. Oshkosh, 84 Wis. 548, 54 N. W. 1095; Tide- Water Co. v. Coster, 18 N. J. Eq. 518, 90 Am. Dec. 634; Nichols v. Bridgeport, 23 Conn. 189, 60 Am. Dec. 636. 01 Norfolk V. Chamberlain, 89 Va. 196, 16 S. E. 730; McKuslck V. Stillwater, 44 Minn. 372, 46 N. W. 769. Contra, Genet v. Brook- lyn, 99 N. Y. 296, 1 N. B. 777. 92 The constitutional provisions for trial by jury, and for due process of law, which control in respect to the mode of ascertain- ing the amount to be paid to one whose property is taken for pub- lie use, do not apply to the ques- tion of the necessity for such taking. People V. Smith, 21 N. Y. 595. The compensation to which a land-owner, part of whose land is taken for a street improved, is entitled to receive for the part so taken, may be offset, pro tanto', by the benefits assessed against the remainder. Genet v. Brooklyn, 99 N. Y. 296, 1 N. E. 777. When the public good requires, property may be taken by the right of eminent domain; and in such case what one parts with is just so much more than his share of contribution to the public good, and hence for such property he must receive compensation in money or its equivalent. People V. Mayor, 4 N. Y. 419, 55 Am. Dec. 266; Stuart v. Pal- mer, 74 N. Y. 183, 30 Am. Rep. 289. Under the Const, of Wiscon- sin, Art. XI., Sec. 2, a municipal corporation may not take private property for public use, against the consent of its owner, without the necessity thereof being first es- tablished by the verdict of a jury. 36 §§ 48, 49 — Under the power of taxation. 48. In the opinion by Judge Ruggles referred to in the last section, he points out some of the distinctions between the powers of taxation and of taking private property for public use, which had been referred to in the same case by the court below as being " by no means easy to trace the di- viding between the two kinds of taking private property, and that the two appear in principle to be somewhat blended. Both are exercises of the sovereign power over individual property, and in both cases the individual is presumed to receive, or does in fact receive some equivalent for the contribution." But the able judge in the Court of Appeals found no difficulty in distinguishing them. He says, " Taxa- tion exacts money, or services, from individuals, as and for their respective shares of contribution to any public burthen. Private property taken for public use by right of eminent domain, is taken not as the ovmer's share of contribution to a public burthen, but as so much beyond his share. Special compensation is therefore to be made in the latter case, because the government is a debtor for the property so taken; but not in the former, because the payment of taxes is a duty and creates no obligation to repay, otherwise than in the proper application of the tax. Taxation operates upon a community or upon a class of persons in a com- munity and by some rule of apportionment. The exercise of the right of eminent domain operates upon an individual, and without reference to the amount, or value exacted from any other individual, or class of individuals." 49. When one considers that a trained judicial mind, like that of the judge who delivered the opinion in the same case in the court below,'* confuses the many striking points of difference in the two powers, so completely classi- fied by the distinction pointed out in the upper court, and knowing that the two operations of condemning private property for public use, and of levying a special assess- es people V. Mayor, &c., 6 Barb.(N. Y.) 209. 37 § 49 THE lAW OF SPECIAL ASSESSMENTS. ment to pay for it, are frequently, or even usually, per- formed by the same board or officers, and combined in the same proceeding, it is not strange that judicial opinions should have been so diverse. It is axiomatic that private property may be taken for public use under the right of taxation, the power of police, or that of eminent domain. In the latter case, compensa- tion must be made to the owner, while under the police power it is principally a matter of legislative discretion. Under the power of taxation for general governmental purposes, private property may in effect be confiscated,®* but under the power of special assessment, the limitation is the extent of the benefit conferred, as we shall see later. However, it is now settled in the Federal Courts, and in the Courts of last resort of practically every state of the Union which recognizes the power of special assessment, except Colorado, that all such assessments are laid under the taxing power.* ^ '* Private property may be con- stitutionally taken for public use by the right of taxation or the right of eminent domain. People V. Mayor, &c., of Brook- lyn, 4 N. Y. 419, 55 Am. Dec. 266. The constitutional restriction as to the taking of private property for public use does not apply to the power of taxation. State V. Newark, 35 N. J. L. 168. 05 The authority to levy aii as- sessment is usually referable to and an exercise of the taxing power. HoUey v. Orange Co., 106 Cal. 420, 39 Pac. 790. Special assessment is an exer- cise of the power of taxation vested in the state government, and is not in conflict with any provision of the constitution. Nichols V. Bridgeport, 23 Conn. 189, 60 Am. Dec. 636. The authority to make special assessments is found in the taxing power of the legislature. New London v. Miller, 60 Conn. 112, 22 Atl. 499. An assessment in proportion to benefits is a legitimate exercise of the taxing power under Const, of 1802, and does not violate con- tract rights. Scovill V. Cleveland, 1 Ohio St. 126; Hill v. Higdon, 5 Ohio St. 243, 67 Am. Dee. 289; Marion v, Epler, 5 Ohio St. 250. Assessments for street grading, upon lots fronting on the street, are an exercise of the taxing power of the government, and not the right of eminent domain. McComb V. Bell, 2 Minn. 295, Gil. 256. Under the constitution of 1870, the levying of special assessments is regarded as a species of taxa- 38 OBIGIIir, HISTOEY AND DEFINITION. § 60 Of the power to levy special assessments — Constitutional au- thorizatioil unnecessary. 50. Although, as we have just seen, by the almost unani- mous consensus of judicial opinion, the power to authorize the laying of special assessments is attributable to the sov- tion, and they may not be levied Special assessments are a spe- under the power of eminent do- main, for the reason that property taken for public use cannot be compensated for in benefits. Benefits are only allowed as a set- off to damages to property not taken. Adams Co. v. Quincy, 130 111. 566, 6 L. R. A. 155, 22 N. E. 624. Under Section 9, Article 9, of the present Illinois constitution, municipalities may be vested with power to levy and collect taxes, both general and special. The former must be uniform in re- spect to persons and property, while taxation of contiguous prop- erty for local public improve- ments has no limitation as to uni- formity and equality. Under the power conferred by this clause, the legislature may authorize lo- cal improvements to be made by special assessments to the extent the property assessed will be bene- fited, or by special taxation of contiguous property according to its frontage upon the proposed im- provement, or according to its value, or by general taxation, or partly by general, partly by spe- cial taxation and partly by special assessment. Either mode involves taxation, and both special assess- ments and special taxation are treated by the constitution as a species of taxation. Adams Co. v. Quincy, 130 111. 566, 6 L. R. A. 155, 22 N. E. 624. eies of taxation, peculiar in their nature, and subject to special rules, but the power to levy them is referable tj the taxing power. Wabash E. E. Co. v. Commis- sioners, 134 111. 384, 10 L. R. A- 285, 25 N. E. 781. Tho power to make special as- sessments is referable to and in- cluded in the taxing power, and the purpose of such taxation must be a public one. Even the owner of land benefited cannot 1 3 taxed to improve it, unlc:;3 public con- siderations are involved. Elmore v. Drainage Comr's, 135 III. 269, 25 Am. St. Rep. 363, 25 N. E. 1010. An objection that a special tax- ation ordinance deprives the party taxed of his property without compensation, in violation of the constitution, cannot be sustained, as the power to specially tax con- tiguous property is a branch of the taxing power, and is not an exercise of eminent domain. C. & N. W. R. Co. V. Elmhurst, 165 III. 148, 46 N. E. 437. Special tax assessments are sus- tainable under the taxing power. Garrett v. St. Louis, 25 Mo. 505, 69 Am. Dec. 475; Keith v. Bingham, 100 Mo. 300, 13 S. W. 683; St. Joseph v. Earrell, 106 Mo. 437, 17 S. W. 497. Although local assessments are referable to the taxing power, they are not, strictly speaking, taxes. 39 50 THE XAW OF SPECIAL ASSESSMENTS. ereign power of taxation, yet the courts of last resort exhibit a wide difference of opinion as to the necessity of express constitutional authority for the exercise of that power. The attempts to attribute the legislative right to enact measures Independence v. Gates, 110 Mo. 374, 19 S. W. 728. The right of providing that benefits or advantages shall be considered in determining the just compensation required by the con- stitution, is based on the taxing power. Newby v. Platte Co., 25 Mo. 258. An ordinance passed in compli- ance with a petition signed by the requisite number of property hold- ers, which provides for so grading a street that it will conform to a grade previously established by the city, is not an ordinance passed in the exercise of eminent domain, but one enacted under the taxing powers of the city. Saxton Nat. Bank v. Bennett, 138 Mo. 494, 40 S. W. 97. The provision of the Missouri Constitution declaring that pri- vate property cannot be taken for ditches and drains, or other sani- tary purposes, and that whether the contemplated use be really public shall be a judicial question, is intended to regulate the right of eminent domain, and has no ap- plication to a special taxbill to pay for the construction of a sew- er. That is referable to the tax- ing power. Heman v. Schulte, 166 Mo. 409, 66 S. W. 163. The imposition of taxes is an exercise of the sovereign power, which, under our system, may be exercised by the legislature with- out limitation, except as restricted by State or Federal constitutions. That this power may be delegated to the municipalities of the state, as instrumentalities of govern- ment, for the purpose of carrying on municipal affairs, is every- where conceded. Davis V. Litchfield, 145 111. 313, 21 L. E. A. 563, 33 N. E. 888. Special taxation of contiguous property and special assessments for local improvements are branches of the taxing power, and not an exercise of the power of eminent domain. C. & A. E. Co. V. Joliet, 153 III. 649, 39 N. E. 1077. An assessment upon city lota fronting a street, for the purpose of raising money to grade the street, is an exercise of the sover- eign right of taxation, and not of the power to appropriate private property to public use under the right of eminent domain. Emery v. San Francisco Gas Co., 28 Cal. 345. A charter provision making abutting property owners liable to persons other than the city for in- jury to travellers by defective walks, is void as not being within the taxing power. Noonan v. Stillwater, 33 Minn. 198, 53 Am. Eep. 23, 22 N. W. 444. The power to assess for local improvements is a part of the great legislative prerogative of taxation. 40 OEIGIN, HISTOET AND DEFINITION. § 50 for the delegation and control of this power to various, and somewhat vague and cloudy expressions in the constitutions of the various states, and to refinements on the meaning of the word " assessment " where it appears in those instru- State V. Fuller, 34 N. J. L. 227. Assessments for local improve- ments are clearly an exercise of the taxing power. State V. Newark, 35 N. J. L. 168. A special assessment is distin- guishable from our general idea of a tax, but owes its origin to the same source of power, and this power to tax should exist in the discretion of the legislature, with- out the interference of the courts, unless some radical principle is violated, or the guarantee of the constitution disturbed under color of its exercise. State V. Fuller, 34 N. J. L. 227. The legislation complained of here "(grading and paving a street)" is of the character of much that has prevailed in Penn- sylvania without complaint ; which has been often sanctioned by judicial tribunals; and which is made indispensable by the growth and prosperity of towns and cities. It is a fair and legiti- mate mode of taxation, because it imposes the burthens exactly where the benefits are conferred, and its constitutionality is unques- tionable. Schenley v. Allegheny, 25 Pa. St. 128; Gault's Appeal, 33 Pa. St. 94. The levy of special assessments on property benefited by a levee, is an exercise of the taxing power, and cannot be justified aa an ex- ercise of the police power. Reelfoot, &c.. District v. Daw- son, 97 Tenn. 151, 34 L. R. A. 725, 36 S. W. 1041. Local assessments for street im- provements are an exercise of the taxing power. Violett V. Alexandria, 92 Va. 561, 31 L. R. A. 382, 53 Am. St. Rep. 825, 23 S. E. 909; Norfolk v. Young, 97 Va. 728, 47 L. R. A. 574, 34 S. E. 886. Levying a local assessment is not a taking of private property " for public use " under the power of eminent domain, but is the ex- ercise of the right of taxation in- herent in every sovereign state. Allen V. Drew, 44 Vt. 174. The foundation of the power to levy special assessments is the right of taxation, rather than the police power or the right of emi- nent domain. Hackworth v. Ottumwa, 114 Iowa, 467, 87 N. W. 424; Allen V. Davenport, 65 C. C. A. 641, 132 Fed. 209. Levying a special assessment upon lots for building streets and sidewalks in front of them, or for building piers or breakwaters, is not a taking, in the constitutional sense, but an exercise of the tax- ing power for the public benefit. Weeks v. Milwaukee, 10 Wis. 242 ; Soens V. Racine, 10 Wis. 271. They are an exercise of the tax- ing power. Charnock v. Fordoche, &c., Co., 38 La. An. 323; Gar- rett V. St. Louis, 25 Mo. 505, 69 Am. Dee. 475; Springer v. Wal- 41 § 50 THE LAW OF SPECIAl ASSESSMENTS. ments, are numerous, and not only diiScult of exact analysis, but impossible of reconciliation. A careful consideration of the term " sovereign power of taxation " would seem to furnish the key with which the problem may be solved. If it be, indeed, a sovereign power, then it can be exercised only by the sovereign, or as delegated by the sovereign. It is admitted that the government of the United States is one of enumerated powers, and to the Federal Constitution must we turn for the authority to exercise any of the pow- ers which the national government assumes to possess.*® The Tenth Amendment to the Constitution of the United States provides that the " powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, and to the people." At the declaration of independence, the prerogatives of the sovereign which were held by him in trust for his subjects, were immediately assumed and held by the people.®'' And the people of the several states, both under the organic law ters, 139 III. 419, 28 N. E. 761; Note. Roundtree v. Galveston, 42 Tex. Although the Supreme Court of 612; Alexander v. Mayor, &e., 5 the United States have said that Gill, 383, 46 Am. Dec. 630; Gould there is no limitation whatever V. Mayor, &c., 59 Md. 378; State upon the legislative power of the V. St. Louis, 62 Mo. 244; Mc- states, as to the amount or ob- Guire v. Brockman, 58 Mo. App. jeets of taxation, it is manifest 307; McComb v. Bell, 2 Minn, that this statement is too broad. 295, Gil. 256; Stinson v. Smith, In the first place, it must be 8 Minn. 366, Gil. 326. qualified to the extent that it is The laws requiring levees to be limited by the state constitutions, made on lands adjoining the Mis- and outside of those limitations, sissippi River are not laws impos- by the further one, that it can ing a, tax within the meaning of be unlimited only as to general See. 3, Act of Congress Feb. 20, taxes for general purposes. For 1811, exempting lands sold by local taxes for local improve- Congress from any tax imposed by ments, the philosophical and just the authority of the state govern- limitation is that of the benefit ment for five years from the date received, of sale. »6Cooley, Const. Lim. 11. Crowley v. Copley, 2 La. An. »7 O'Connor v. Pittsburgh, 18 329. Pa. St. 187. 42 OEIGIN, HISTOET AHD DEFINITION. §§ 51, 52 and the common law, retained all the powers not expressly granted to the National Government, or prohibited to the states, and the power of taxation by local assessment falls in neither category. It is a settled rule of construction that the limitations imposed by the Federal Constitution are restraints upon the power of Congress, and not restraints upon the power of the States, except where the latter are specially mentioned.®® 51. The Constitutions of the various States are not grants of power, but apportion and restrict the powers in- herently possessed by the States. The law-making power of the legislature is supreme within its proper sphere, and it may establish whatever is suitable for government to do, qualified only by the limitations and prohibitions of the Constitution.®* Taxation, being an inherent sovereign power, may be directed and controlled by the Legislatures of the several sovereign States, subject only to the restrictions mentioned, and it is unnecessary for a Constitution to con- fer upon the Legislature in express terms a power which is inherent in that body; and it necessarily follows that the power to levy special assessments for local public improve- ments, which are levied under the taxing power, needs no express authorization of constitutional creation. In the absence of any constitutional provision upon the subject, the power of taxation by special assessment exists, in the legislature, as an inherent municipal power. ^ 52. This view receives confirmation from a considera- tion of the old Articles of Confederation, where the ques- tion of construction was presented in much broader shape. Article II provided that " Each State retains its sovereignty, «8 Cooley, Const. Lim. 29. This 99 Philadelphia v. Field, 58 Pa. statement has been criticized as St. 320; State v. W. U. Tel. Co., being too narrow, and as eliminat- 73 Me. 518. ing the theory of restraint by nee- i Donnelly v. Decker, 58 Wis. essary implication. See McCul- 465, 46 Am. Rep. 637, 17 N. W. lough V. Maryland, 4 Wheat. 316, 389. 4 L. ed. 579; Gibbons v. Ogden, 9 Wheat. 1, 6 L. ed. 23. 43 §§ 53, 54 THE LAW OF SPECIAl ASSESSMENTS. freedom and independence, and every power, jurisdiction and right which is not, by this confederation, expressly dele- gated to the United States in Congress assembled." The Constitution, as originally adopted, contained no equivalent for this canon of construction. The Tenth Amendment was intended to serve as a compromise between the two extreme views, and it will be observed that the controlling word ^' especially," found in the Articles of Confederation is omitted in the Tenth Amendment.* 53. It is believed that this view of the rationale of the principle of special assessment rests upon a foundation which is broad enough to sustain the great structure which has so largely been built up during the last generation, and which has assumed such enormous importance in the fiscal management of municipalities. And it is somewhat significant that some of the courts that were at first most reluctant to acknowledge the existence of the power, in the absence of express constitutional provision therefor, have since gone to the extremest limit in sustaining the onmipo- tence of the Legislature in the application and control of such power. Restraints upon power to levy special assessments. 54. That the power, therefore, to levy these impositions, is inherent in the Legislature of each of the several States, unless restrained in the State Constitution, is manifest, if the foregoing reasoning be correct.^ But, as will be at- tempted to be demonstrated in the next chapter, the Legisla- ture is not omnipotent in either exercising or delegating this power, but is restrained by three primary principles of law. It must be for a public purpose, as taxation can be exercised for none other; the property upon which the charge is laid 2 Miller on Const. U. S. 650. assessments, is an express eonsti- s The author is not unmindful tutional power, resting alone upon of the opinion in Hurford v. constitutional authority; but be- Omaha, 4 Neb. 336, holding that lieves it contrary to the current authority to levy and collect these of authority and better reason. 44 OEIGIN, HISTOK.Y ASTD DEEINITIOW. § 55 must be peculiarly and specially benefited by the work ; and the charge must be apportioned according to the benefits by some reasonable rule, and must not exceed such benefits.'* What is meant by " taxation by special assessment." 55. It appearing from the practically unanimous opin- ions of courts and text-writers that the right to lay special assessments is derived from the taxing power, and having examined both the analogies and distinctions between a " tax " and an " assessment," and assuming for the present that benefit resulting to the property assessed is the only legal and logical excuse for the system, as will be shown hereafter, we are in possession of the material to formulate a definition of the term " Taxation by Special Assessment," which will eliminate some of the features in the definitions heretofore quoted which seem to be contrary to the weight of authority, and perhaps more completely include the dif- ferent factors which make up the sum total. It appears to be a universal rule that this peculiar im- position is levied upon real estate, unless we except the charge laid in Louisiana for the maintenance of the levee system upon the produce of both land and sea protected thereby, and which is more in the nature of a special tax. It involves the idea of permanence in the improvements, notwithstanding such temporary and evanescent subjects as street sprinkling and sweeping have by a few courts been adjudged proper subjects of the power. The word " spe- cial " would seem to exclude such objects, and to indicate that the power is not exercised at regular intervals, but only as occasion arises. It is not a burden upon the land, because the latter suffers no diminution in value thereby, and it is immaterial whether the land upon which it is laid belongs to a citizen or an alien, for the land alone is liable for the charge. Like all impositions in the nature of a tax, it must be laid upon property within a clearly defined district, estate V. Reis, 38 Minn. 371, 38 N. W. 97. 45 §§ 56, 57 THE LAW OF SPECIAL ASSESSMENTS. and by some reasonable rule of uniformity within sueli district. Within these principles, the author submits the following as a definition of the subject of this work: Definition. 56. Taxation by Special Assessment is a compulsory charge upon real estate within a pre-determined district, made under express legislative authority, for defraying in whole or in part the expense of a permanent public im- provement therein, enhancing the present value of such real estate, and laid by some reasonable rule of uniformity based upon, in the ratio of, and limited by, such enhanced value. Objections to the system. 57. Not only property owners, but judges of the courts of last resort, have expressed in forcible terms their opinion of the many acts of iniquity and injustice perpetrated under this system. " Among the manifold evils complained of in municipal administration, there is no one, in my judgment, calling more loudly for reform than this arbitrary system of local assessments." So said a distinguished Chief Judge of one of our greatest courts," and it has been echoed at many a hearing before other courts. In those states whose courts practically admit the omnip- otence of the Legislature, not only in fixing the taxing district, but in apportioning the tax on any arbitrary theory of cost or frontage, the opportunity afforded the ministerial department of the public service to do acts of injustice and oppression, are very great. The officers and boards vested with the power, being officers or employees of the munici- pality, fail to appreciate the fact that the law imposes upon them duties which are judicial in their nature, and that they should be as strenuous in protecting the property of an individual from undue imposition, on the one hand, as they are in preventing him from escaping the payment of a 5 Church, C. J., in Guest v. Brooklyn, 69 N. Y. 516. 46 OBIGIN, HISTOET AKD DEFINITIOH". § 58 just tax, on the other. But as a rule, the estimate of bene- fits is stretched so as to cover the entire expense of the improvement, and the unfortunate and dissatisfied property owner is relegated to the narrow remedy usually given by statute; and, if the amount be comparatively small, it is less expensive for him to submit to the injustice than to as- sert his right. In the great majority of instances, the rankest injustice is thus permitted, which would be even greater if the following expression from the Supreme Court of Pennsylvania were to become acknowledged law in aU jurisdictions : " It would be intolerable if in every instance of spe- cial taxation the question of benefits could be thrown into the jury-box. It would introduce into municipal government a novel and dangerous feature. It would substitute for the responsibility of councils, limited though it be, the wholly irresponsible and uncertain ac- tion of jurors. It is better ' to endure the ills we have, than to fly to those we know not of.' " ® It may be that the maxim " de minimis non curat lex " is especially applicable in special assessment cases, but to hold to the extent indicated in the opinion would permit cases of grand larceny to be punished, but to allow petit larceny to flourish unchecked. Assessment of cost of work. 58. In some jurisdictions, few in number, and growing fewer, the cost of the improvement, irrespective of benefits or apportionment, is assessed against abutting property, and has been upheld as within the power of the Legislature by both Courts and text-writers. This method of using the power of special assessment is illogical, dangerous and un- just, and, as stated by a distinguished "writer, " It is an sMichener v. Philadelphia, 118 a private benefit nor a public ne- Pa. St. 535, 12 Atl. 174, holding cessity cannot be permitted, that a plea that a sewer is neither 47 § 59 THE I^W OF SPECIAL ASSESSMENTS. archaic practice, suitable to archaic conditions." '' And in the same article this author says even of the principle of taxing according to benefit, that " the total appropriation of new values is as much confiscation as the appropriation of former values would have been. Injustice is not consciously intended only because a logical fallacy is not perceived. None the less the injustice, would be violent in principle, and most oppressive in effect, just as the intellectual con- fusion is very deeply seated, and reaches very far." * Fnither objections. 59. Another objection, and a very pertinent one, is that improvements of streets are ordered far ahead of actual needs, ofttimes in the interests of speculators, and against the objections of the property ovraers, thus fostering extravagance and corruption, to the very verge of audacity. By collu- sion of officials and contractors, exorbitant prices are paid, and in the days of the TWeed regime, not infrequently the expense of laying out and improving an avenue was greater than the total value of abutting property, which was thus confiscated.* These practices well deserve the scathing words applied to them by Judge Church, that " to force an expensive improvement upon a few property owners, against their consent, and compel them to pay the entire expense, T Duke of Argyll, The Better- brought up in the school of the ment Tax, Contemporary Review, necessity of special assessment, June, 1890. the view thus expressed is ex- 8 The Duke opposes the principle tremely narrow, of appropriating the " unearned » Lots valued at $200, $400 and increment." He argues that if $500 were subjected to a special the rates were formerly £30 on a assessment aggregating $884.08,. rental value of £100, and by the $1,072.88 and $3,871.25 respec- improvement the rental value was tively, and these examples oc- doubled, that then the rate payer curred under a law prohibiting the would contribute £60 annually, or levy of a special assessment ex- in proportion to the increased ceeding one-half the value of the rate, although £2000 of some- property benefited. Special Re- body's money has been expended port of Comptroller, Brooklyn,, in the improvement. To one 1880. 48 ORIGIN, HISTORY AND DEPINITIOW. § 60 under the delusive pretense of a corresponding specific benefit conferred upon their property, is a species of despot- ism that ought not to be perpetuated under a government ■which claims to protect property equally with life and lib- erty. ^^ 60. If these words are appropriate when the basis of assessment is, theoretically, the actual benefit conferred, they are infinitely more applicable to cases where this principle is either ignored, or used merely as a legal fiction. Where the distinction between general taxation and special assess- ment is lost sight of, courts go to greater extremes in assert- ing the legislative prerogative than we believe to be war- ranted. This matter will be more thoroughly discussed later, but for the sake of making clear the principles which the author believes to be the corner stone of the whole theory of general taxation and of special assessment, the following brief statement is submitted. General taxation, except aa limited by organic law, is limited only by the ability of the person taxed, ^^ and may result in confiscation; special assess- ment is limited to the actual enhanced value of the real estate affected, the ability of the owner being outside the question, and can never result in confiscation. The tax is a burden, and to that extent reduces the value of the land. An assess- ment is not a burden, but an equivalent for a benefit, and does not reduce the value of the land.^^ An early case held, in effect, that the power of special assessment, being at- tributable to the power of taxation, naturally involved the right to apportion the tax, and except in cases where the pro- ceeding was only colorable, and was really an exercise of the right of eminent domain, the discretion of the legislature was -beyond judicial control, regardless of how onerous the burden imposed might be.^^ But the world is built on 10 Guest V, Brooklyn, 69 N. Y. Highways, 153; Canal Trustees v. 516. Chicago, 12 111. 403. 11 Commissioners, &c., v. Har- is Scovill v. Cleveland, 1 Ohio rell, 147 Ind. 500, 46 N. E. 124. St. 126. i2Angell & Biirfee, Law of 4 49 §§ 61, 62 THE LAW OB SPECIAI- ASSESSMENTS. moral foundations, and in tlie long run justice and equity are bound to prevail against injustice and wrong-doing, and courts wiU so construe the law as to attain this desirable end. 61. In two cases of comparatively recent date, the Su- preme Court of the United States has largely eliminated the force of the objection to the system that we are now considering, and laid down two principles which are un- deniably correct, and entitled to be carved in golden letters upon the monument of modern jurisprudence. In the first case,^* the court say, " The exaction from the owner of private property of the cost of a public improvement in sub- stantial excess of the 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." And in a somewhat later case,^® the court used the fol- lowing language : " It may be conceded that courts of equity are always open to afford a remedy where there is an at- tempt, under the guise of legal proceedings, to deprive a person of his life, liberty, or property without due process of law. And such, in the opinion of a majority of the judges of this court was the nature and effect of the pro- ceedings in the case of ISTorwood v. Baker." These de- cisions, carried to their legitimate results, should insure to every property holder in the land, an assurance that the wrong and oppression frequently perpetrated under the guise of special assessment proceedings may be righted in the courts of the country. 62. In one of the most celebrated of our early cases, ^® remarkable as involving an important principle, and decided upon principles of pure reasoning, and without citing a 1* Norwood V. Baker, 172 XJ. S. is French v. Barber Asphalt 269, 43 L. ed. 443, 19 Sup. Ct. Paving Co., 181 U. S. 324, 45 L. Eep. 187; Iowa Paving & Tile Co. ed. 879, 21 Sup. Ct. Eep. 625. V. Callanan, 125 Iowa, 358, 67 L. isMcCulloch v. Maryland, 4 B. A. 408, 106 Am. St. Rep. 311, Wheat. 316, 428, 4 L. ed. 579, 607. 101 N. W. Rep. 141. 50 OEIGIW, HISTOBY AND DEFINITION. § 63 single authority to sustain the result, Chief Justice Mar- shall said: " It is admitted that the power of taxing the people and their property is essential to the very existence of government, and may be legitimately exercised on the objects to which it is applicable, to the utmost extent to which the government may choose to carry it. The only security against the abuse of this power is found in the structure of the government itself. In imposing a tax, the legislature acts upon its constituents. This is in general a sufficient security against erroneous and op- pressive legislation." This is quoted by Church, C. J., in Guest v. Brooklyn, 69 N. Y. 516, and he comments thereon as follows: " This is true to a degree, as it respects general taxa- tion, when all are equally affected, but it has no bene- ficial application in preventing local taxation for public improvements. The majority of the constituents would generally approve, certainly not dissent from taxing the small minority." " The few are powerless against the legislative en- croachments of the many. The ' constituents,' under this system, are attacked in detail, a few only selected at a time, and they have no power to enforce accounta- bility, or to punish for a violation of duty on the part of the representative. The majority are never back- ward in consenting to, and even demanding, improve- ments which they may enjoy without expense to them- selves. The inevitable consequence is, to induce im- provements in advance of public necessity, to cause ex- travagant expenditures, fraudulent practices and ruin- ous taxation. The system operates unequally and un- justly, and leads to oppression and confiscation. It is difficult to discover in it a single redeeming feature which ought to commend it to public favor." 63. To which may be added the fact that the officials who have charge of the assessment, no matter how arbitrarily, illegally and viciously they may have acted, usually have it 51 §§ 64—65 THE LAW OP SPBCIAL ASSESSMENTS. within their power to secure legislative relief for their acts, in the shape of curative and reassessment statutes. So far as these acts, not infrequently obtained in a furtive manner, are used to prevent a property owner from escaping the pay- ment of a just tax, they work justice, and are commendable. But when used in a way which results in a depreciation to the property of the citizen, without affording him adequate relief for his loss, they are to be strongly condemned. 64. Additional objections very often strongly urged against the system are that the property of the taxpayer is often taken for a public use without adequate compensation, and that it is taken without due process of law. These ob- jections will be considered in the next chapter. Merits of the system. 65. On the other hand, in a comparatively early case, an able jurist upholds the system of special assessment, as being more just and equitable, and less liable to result in extravagance than the method of paying for local improve- ments from the general fund. He says, " I must repeat my conviction that the system of pay- ing for local improvements wholly out of the general treasury is inequitable, and will result in great extrava- gance, abuse and injustice. I think the system of mak- ing particular localities, which are specially benefited, bear a special portion of the burden is safer, and more just to the citizens at large, by whose united contribu- tions the city treasury is supplied." " IT " For nearly thirty years this the vast number of proprietors equitable contribution by front who have paid one-third of the proprietors, who derive a special costs of paving streets used by all benefit from the improvement, has the citizens, if others of their fel- been enforced. Experience and low citizens, who have enjoyed a the general acquiescence for so public beneflit at the partial ex- long a time may be considered as pense of front proprietors, should demonstrating the reasonableness afterwards be permitted, when of the apportionment; and it paving is done in front of their would be a manifest injustice to property, to escape a similar con- 52 OEIGIW, HISTOET AITD DEFlHITIOISr. § DO 66. When we reflect that under the method of general taxation, the property of the rich is taxed to pay for support of the poor, that of the childless to maintain the common school system, and that of the blind to pay for public lighting, the system of special assessments for benefits seems a radical departure. But numerous as are the objections to this sys- tem, by reason not only of its inherent qualities, but of the peculiar and intricate manner in which necessity seems to compel its active and practical operation, it is founded upon a principle that is so unquestionably just that its place in American municipal finance is firmly fixed, and its place in American jurisprudence growing more important. In the endeavor to make taxation as nearly equal as possible, it is only right that he who receives, through an increase in the value of his property by reason of a local public improve- ment, a direct benefit beyond that received by the public at large, should pay an amount greater than those who are only incidentally benefited, and proportioned in some manner or in some ratio to such enhancement. And if more judicial care and responsibility, and less ministerial haste, careless- ness and arbitrary methods, were employed in planning im- provements, and making an honest and legal assessment of benefits and damages, most of the objections now so stren- uously invoked against the system would vanish like mist before the morning sun. tribution. It is just that the bur- Slidell, C. J., in New Orleans den should fall on all who stand v. Dunn, 10 La. Ann. 57. in the same situation.'' 53 CHAPTEK II. OF CONSTITUTIONAX AND STATUTOEY POWEES AND BESTEIC- TIONS. Constitutional authority — ity and uniformity, 67. Alabama, 68. Arkansas, 69-70. California, 71-73. Colorado, 74-75. Connecticut, 76. Delaware, 77. Florida, 78. Georgia, 79. Idaho, 80. Illinois, 81-84. Indiana, 85. Kansas, 86. Kentucky, 87. Louisiana, 88. Maine, 89. Maryland, 90. Massachusetts, 90a. Michigan, 91. Minnesota, 92-93. Mississippi, 94. Missouri, 95. Nebraska, 96. Nevada, 97. New Hampshire, 98. New Jersey, 99. New York, 100. North Carolina, 101. North Dakota, 102. Ohio, 103. Oregon, 104. Pennsylvania, 105-106. Rhode Island, 107. South Carolina, 108-109. South Dakota, 110-111. Tennessee, 112. Equal- Texas, 113. Vermont, 114. Virginia, 115. Washington, 116. West Virginia, 117. Wisconsin, 118-120. Constitutional restrictions — State constitutions not a grant of power, 121. Limitation on taxing power, 122. Who may levy a tax, 123. Effect of constitutional limitation on indebtedness, 124. The fourteenth amendment — Im- portance of, 125. Assessment of cost of work against abutting property, 126-129. The front foot rule, 130-131. Priority of lien, 132. Equal protection of the laws, 133. Due process of law, 134-136. Definition of, 137. Arbitrary legislation, 138. Interest on deferred payments, 139. "Due process" not necessarily ju- dicial process, 140. Requisites of due process — No- tice, 141-144. Opportunity for hearing, 145- 147. What notice sufficient, 148-149. What is not sufficient notice, 150. What constitutes a taking, 151- 159. What is not a taking, 160-164. 54 POWERS AJSTD EESTKICTIOWS. §§ 67, 68 Of property damaged for public use, 165-166. Of the constitutionality of stat- utes, 167-169. Legislative omnipotence, 170-182. Of the delegation of power, 183- 184. A continuing power, 185. Express statutory authority neces- sary, 186. Power of special assessment strict- ly construed, 187-189. Statutory powers, 190-194. Statutory construction, 195-201. Constitutional authority — Eqality and unifomity. 67. If the views expressed in the previous chapter be correct, then there need be no express constitutional au- thority for the exercise of the power of special assessment, it being a branch of the taxing power which is inherent in the legislative branch of the Federal and State governments.^ But many of the states have constitutional provisions more or less directly bearing upon this subject, which provisions have been construed by the various courts of last resort in those states, and it will be instructive to examine the ques- tions involved with some care. Especially has the require- ment that taxes shall be equal and uniform, which is found in a majority of the state constitutions, been subject to rigid scrutiny, and with varying and contradictory results. — Alabama. 68. In 1871, upon bills of equity to enjoin the municipal authorities from collecting special assessments against real estate, to defray the expense of street paving, it was held that a special tax upon the abutting property for the purpose named, construed two provisions of the Constitution of Alabama of 1868, the first one of which provides that " All taxes levied on property in this state, shall be assessed in exact proportion to the value of such prop- erty ; Provided, however, that the general assembly may levy a poll tax, not to exceed one dollar and fifty cents 1 It is a principle of constitu- could exercise the powers ex- tional law that the power to levy pressly delegated to it. taxes is an incident to sovereignty, Yunker v. Nichols, 1 Colo. 551, without which no government 567. 55 § 68 THE LAW OF SPECIAL ASSESSMENTS. on each poll, which shall be applied exclusively in aid of the school fund." The court say, taxes are thus divided into two classes, one on property and one on persons, and a tax on property accord- ing to its front on a street so improved violates the rule laid down. The court further say, that as a tax is an orderly rate levied on the property of the citizen according to its value, or a fixed sum levied on his person for the public use, it ought, in strict justice, to be levied on the property of all, it being for the use of all. In the case in question, it is levied on a few for the use of all, for the improvement of a public street, and to that extent is a seizure of private prop- erty for public use, without the owner's consent, and without just compensation.^ But in 1889, the same court, construing the provisions of Sec. 1, Art. XI, of the Constitution of 1875, which is sub- stantially the same as the provision already quoted, ex- pressly overruled these two cases, and held the sounder view to be that provisions, either of constitutions or statutes, re- lating to general taxation for either state or municipal pur- poses have no application to special assessments upon abut- ting property to pay for street improvements, which have benefited and enhanced the value of the property so as- sessed.^ This same constitutional provision was furthei? held to have no application to local assessments for street paving, and similar improvements, such power being re- ferable to the general inherent power of taxation, not here limited or restrained,* although as a general proposition, the right to tax is a limitation, and not a grant of power. ^ 2 Mayor, etc., v. Dargan, 45 Ala. 6 Dorman v. State, 34 Ala. 216; 310; Mayor, etc., y. Royal, etc., Irwin v. Mobile, supra; Shultes Co., 45 Ala. 322. v. Eberly, 82 Ala. 242, 2 So. 345; s Mayor, etc., v. Klein, 89 Ala. Hare v. Kermerly, 83 Ala. 608, 3 461, 8 L. E. A. 369, 7 So. 386. So. 683; Mayor v. Klein, 89 Ala. The present constitution was 461, 8 L. R. A. 369, 7 So. 386; adopted in 1901. Elyton Land Co. v. Mayor, 89 * Irwin V. Mobile, 57 Ala. 6. Ala. 477, 7 So. 901. 56 POWERS AND EESTKICTIONS. §§ 69, 70 Arkansas. 69. As early aa 1853 the Supreme Court of the State held that the term " taxes," as employed in the earlier con- stitution, which provides that "All property subject to taxation shall be taxed accord- ing to its value — that value to be ascertained in such man- ner as the General Assembly shall direct; making the same equal and uniform throughout the state," applied to taxation for state purposes alone ; ® and in 1860, it held that an act authorizing a special levee tax to be levied in one certain «ounty, and requiring the lands to be assessed at not less than ten dollars an acre, was not in contravention of such provision, the term " taxes " in Sec. 9, Art. 6, of the con- stitution being construed to have reference to taxation for general county purposes, and not to special assessments for local improvements.'' Under the further constitutional requirement that Laws shall be passed taxing by a uniform rule ... all real and personal property according to its true value in money, the application to local assessments was upheld, and an assessment according to frontage declared invalid.® But a law which levies a tax for a local benefit upon part of the lands to be benefited, to the exclusion of others of the same class, was held void,® while under the constitutional author- ity to the legislature to provide for special assessments, such permission is not controlled by another fixing the power of general taxation. 70. Under the constitution of 18Y4, the rule for taxa- tion is fixed as follows : " All property subject to taxation shall be taxed ac- cording to its value, that value to be ascertained in such » Washington v. State, 13 Ark. point involving the obligations of 752. a contract. TMcGehee v. Mathis, 21 Ark. speay v. Little Rock, 32 Ark. 40. Although this case was re- 31. versed in the federal supreme » Carson v. St. Francis Levee court (4 Wall. 143), it was on a Dist., 59 Ark. 513. 57 § 71 THE LAW OF SPECIAL ASSESSMENTS. manner as the general assembly shall direct, making the same equal and uniform throughout the state. No one species of property from which a tax may be collected shall be taxed higher than another species of property of equal value." Art. XVI, Sec. 5. The words " ad valorem and imiform " seem to state the idea intended in contradictory terms. When a case involv- ing the section quoted came before the court in 1877, it de- clared an assessment for paving according to frontage un- constitutional as being in conflict with such section, thereby declaring in effect the tax might be laid in specially named districts, but within the limits of each must be equal and uniform according to the value of each estate. So that the term employed in the constitution is really a misnomer, ex- cept in those rare cases where the value of the property affords a just measure for the benefit.^" California. 71. Article XIII, Sec. 1, of the Constitution of 1879, says ; " All property in the state, not exempt imder the laws of the United States, shall be taxed in proportion to its value, to be ascertained as provided by law," and the previous con- stitution also provided that " taxation shall be equal and uniform throughout the state," and also conferred upon mu- nicipal corporations the power of assessment and taxation. The power of special assessment for local improvements is expressly recognized, and Art. XI, Sec. 19, goes so far as to place certain restrictions upon the procedure to be adopted in carrying out the work and making and collecting the assessment. lopeay v. Little Eock, supra, vate property by special assess- 11 " No public work or improve- ment, unless an estimate of such ment of any description whatsoever cost and expense shall be made, shall be done or made in any city, and an assessment in proportion in, upon, or about the streets to benefits on the property to be thereof, or otherwise, the cost and affected or benefited shall be levied expense of which is made charge- and collected and paid into the city able or may be assessed upon pri- treasury before such work or im- 58 POWERS AND EESTEICTIONS. §§ 12, 73 72. It was held as early as 1859, that the constitutional provision as to equality and uniformity of taxation upon property refers only to that charge upon property requisite to levy in order to provide funds to defray the expenses of the government of the state, county or town. It has no ref- erence to special assessments for local improvements by which individual parties are chiefly benefited in the in- creased value of their property,'^ although it has since been held that the legislature is without power to levy within an incorporated city an assessment for street improvement pur- poses which is not uniform and equal.* ^ It makes no dif- ference that a special assessment be called a tax in the stat- ute authorizing it, for it will be enforced as an assessment if it be such in fact.** 73. The frontage rule was first adapted as the basis of levying the assessment,*® and afterwards it was based upon valuation, but after two years of experiment, the frontage rule was again reverted to, and the legislative authority to that effect has been steadily upheld,*® although the question provement shall be commenced, or And the constitutionality of the any contract for letting or doing system was expressly upheld in the same, authorized or per- Chapman v. Ames, 135 Cal. 246, formed." But this clause was re- 67 Pae. 1125. pealed in 1884, as it too greatly is Brady v. King, 53 Cal. 44. retarded improvements, arid with " People v. Austin, 47 Cal. 353. little corresponding benefits to tax- And see. Re Market Street, 49 Cal. payers. 546. An assessment levied by a mu- i' Burnett v. Sacramento, 12 nicipal government upon lots ad- Cal. 76, 73 Am. Dec. 518; Bland- jacent to a street to pay for im- ing v. Burr, 13 Cal. 343. provements made on the street, i« Emery v. San Francisco Gas if held to be a tax, cannot be Co., 28 Cal. 345 ; Emery v. Brad- maintained because it lacks the ford, 29 Cal. 75; Walsh v. Mat- constitutional requirement of thews, 29 Cal. 123; Taylor v. equality and uniformity. Palmer, 31 Cal. 240; Crosby v. Creighton v. Manson, 27 Cal. Lyon, 37 Cal. 242; Chambers v. 613. Satterlee, 40 Cal. 497; Reclama- 12 Burnett v. Sacramento, 12 tion Dist. No. 108 v. Hagar, 6 Cal. 76, 73 Am. Dec. 518; Hagar Sawy. 569, 4 Fed. 366. V. Supervisors, 47 Cal. 222 ; Cham- bers V. Satterlee, 40 Cal. 497. 59 §§ 74, Y5 THE LAW OF SPECIAL ASSESSMENTS, of benefits as the proper basis has been theoretically ap- proved. Colorado. 74. " AU taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws which shall prescribe such regulations as shall secure a just valuation for taxation of all property, real and personal." Art. X, Sec. 3. 75. Under the foregoing provision, it was expressly held that assessments upon property, except in the sense of taxa- tion for general revenue purposes, are entirely unauthor- ized. ^'^ The system of taxation by special assessments for local improvements is thus judicially repudiated, while as- sessments for sidewalk and sewer purposes have been sus- tained as an exercise of the police power. ^* These positions were supported by the court with a tenacity worthy of a bet- ter cause, and it certainly takes courage to maintain the opposite of a doctrine upheld by all the supreme judicial courts of the general and state governments wherever it has been discussed, with three exceptions, and whose origin is almost " lost in the resistless wake of judicial authority." But after a repeated consideration of the question, aided by changes in the personnel of the court, the Supreme Court of Colorado swung into line, expressly overruled the case of Palmer v. Way, and held that the word " tax " referred to ordinary public taxes, and not to special assessments, and that the power to make the latter does not infringe upon the rule of uniformity.^® And later an assessment for a sewer by area was upheld.*" 17 Palmer v. Way, 6 Colo. 106, Denver, 10 Colo. 112; Brown v. 116. Denver, 7 Colo. 308, 3 Pac. 455. 18 Palmer v. Way, supra; Pu- !» Denver v. Knowlea, 17 Colo, eblo V. Robinson, 12 Colo. 596, 21 204, 17 L. R. A. X35, 30 Pae. 1041. Pae. 899; Wilson v. Chileott, 12 20 Gillette v. Denver, 21 Fed. Colo. 600, 21 Pae. 901; Keese v. 822. 60 POWEES AOT) EESTBICTIONS. §§ 76-79 Connecticut. 76. The constitution of this state makes no requirements of equality and uniformity, and none seem to be implied. Delaware. 77. All taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levy- ing the tax. Art. VIII, Sec. 1. But this does not prohibit the expense of local improvements in a toT\Ti or city being met, in whole or in part, by local assessments.^^ Florida. 78. The Constitution provides for a " just valuation of all property," " uniform and equal rate of taxation," and that for municipal purposes, " property shall be taxed upon the principle established for state taxation." Art. IX, Sec 1. In 1877, the legislature conferred upon any city or town council the power to make certain street improvements and " to charge upon those benefited such reasonable assessments as may be agreed upon," or in case of disagreement, the amount is to be fixed and ascertained by five discreet free- holders. This enactment was sustained by the court as being competent for the legislature to pass, and the court well say, " A more just or fairer course could not have been adopted ; and it would be strange indeed if the power were not in the legislature to prescribe it." ^^ Georgia. 79. The only constitutional provision as to special assess- ments, discussed by the Georgia Supreme Court, is the one requiring taxation to be ad valorem and uniform. An act of the legislature was passed in 1881 conferring on a mu- nicipal corporation the power to grade, pave and improve its 21 Murphy v. Wilmington, 6 22 Edgerton v. Mayor, etc., 19 Houst. (Del.) 108, 22 Am. St. Rep. Fla. 140. 345. 61 §§ 80, 81 THE lAW OF SPECIAL ASSESSMENTS. streets and sidewalks, and to assess the real estate abutting on each side of the street improved, in proportion to its frontage, for the payment of one-third of the cost of such improvements, and was held not in violation of the constitu- tional requirements that taxes shall be ad valorem and uni- form. Such assessments are not taxes within the meaning of the Constitution.** Idaho. 80. " All taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws, which shall prescribe such regulations as shall secure a just valuation for taxation of all property, real and personaL" Art. VII, Sec. 5. niinois. 81. The constitution of 1818 was silent upon the subject of assessment for local improvements, but Art. IX, Sec. 5, of the constitution of 1848, provides that " The corporate authorities of counties, townships, school districts, cities, towns and villages may be vested with power to assess and collect taxes for corporate pur- poses ; such taxes to be uniform in respect to persons and property within the jurisdiction of the body imposing the same." This clause has been construed as imposing a limitation on the power of the legislature to grant the right of corporate taxation to any other than the local corporate authorities, and consequently could not be granted to private persons or corporations even for draining purposes.** 2» Hayden v. Atlanta, 70 Ga. " It is evident that this clause was 817; First M. E. Church v. At- not inserted in the present consti- lanta, 76 Ga. 181; Speer v. Athens, tution (1848) as a necessary grant 85 Ga. 49, 6 L. E. A. 402, II S. of power, or to remove a doubt as E. 802. to its existence. ... If the 2*Harward v. St. Clair Drain, clause in question was not de- Co., 51 111. 130. The court say, signed as a limitation of power, 62 POWERS AND RESTEICTIONS. § 82 82. Notwithstanding the silence of the constitution on the subject, the city of Chicago has possessed the power of local assessment from its first incorporation in 1837, un- der which charter, as well as that of 1851, the assessments went upon the ground of benefits, and this ground was inci- dentally ratified by the courts. ^^ The charter revision of 1863 changed the rule to that of frontage, but this change was vigorously assailed in the courts as unconstitutional, and it was so declared in Larned's case, and with a broad intimation that the only legal foundation for laying these assessments was for benefits to the property assessed.^* To meet the decision of the court, the charter was amended in 1865, and the change met with judicial approval."'' And in order to settle the question beyond all possible dispute, the Constitution of 1870, Art. XI, Sec. 9, recited that " The general assembly may vest the corporate gov- ernment of cities, towns and villages, with power to make local improvements by special assessment or by special taxation of contiguous property or otherwise." After the adoption of this clause, the Supreme Court of the State held that it had the effect of removing any constitu^ tional restrictions which previously existed, and to permit legislative authorization of the frontage rule, in its discre- tion, "s no reason can be given why it was Discretion of legislature. inserted in the constitution at all." Under the Illinois constitutional JIM, provision giving the assembly gen- 25 Canal Trustees v. Chicago, 12 eral power to make local improve- Ill. 403; Chicago v. Baer, 41 111. ments by special assessment, or 506. special taxation, or both, the legis- 26 Chicago V. Lamed, 34 111. lature is not restricted to any one ■203; Ottawa v. Spencer, 40 111. of the modes provided in that see- 211; Bedard v. Hall, 44 111. 91. tion, and an ordinance providing 27 Wright V. Chicago, 46 111. 44. for either mode, if it conflicts with 28 White V. People ex rel. Bloom- neither constitution nor statute, ia ington, 94 111. 604; Falch v. Peo- lawful. pie, 99 111. 137. Feleh v. People, 99 111. 137; People V. Shuman, 83 111. 165. 63 §§ 83, 84 THE LAW OP SPECIAL ASSESSMENTS. 83. Under the last constitutional provision, it has been decided that the difference between special assessments and special taxation lies mainly in the manner of determining benefits. In the former case the benefits are assessed by commissioners, whose findings are reviewable by a jury, but in the latter case the coimcil which enacts the ordinance determines the benefits to be equal to the cost, and in the case of sidewalks the cost may be imposed upon the con- tiguous property without a consideration of special benefits.'^* And this remained the law until amended in 1895.*** 84. The effect of the various changes in the constitution has given to the opinions of the State Supreme Court an appearance of indecision or hesitation, which is dissipated upon a close investigation of the cases, and the various con- stitutional provisions under consideration.*^ Limitation on legislative power. A constitutional provision that the corporate authorities of cities may be vested with power to as- sess and collect taxes for corporate purposes, such taxes to be uni- form in respect to persons and property, is a limitation on the power of the legislature to confer such power upon any other than the corporate authorities of the district to be taxed. Cornell v. People, 107 111. 372. Issuing park bonds. An act to enable the corporate authorities of two or more towns to issue bonds for park purposes, and provide for special assess- ments to pay them, is in conform- ity with sec. 9, art. 9, const, of 111. People V. Brilin, 80 III. 423; Dunham v. People, 96 111. 331. Payments m,ade as ordinance di- rects. Under both the constitution and general law payments for local im- 64 provements may be made wholly or in part by special assessments, as the corporate authorities may by ordinance direct. People V. Sherman, 83 III. 165. 29 Chicago Park Com'rs v. Far- ber, 171 111. 146, 49 N. E. 427; Craw V. Tolono, 96 111. 255, 36 Am. Rep. 143; Davis v. Litchfield, 145 111. 313, 21 L. R. A. 563, 33 N. E. 888. 80 Laws of 1895, p. 100. 31 The principles of equality and uniformity are indispensable to all legal taxation, whether general or local. Chicago V. Lamed, 34 111. 203 j Ottawa V. Spencer, 40 111. 211; Bedard v. Hall, 44 111. 91; Wright V. Chicago, 46 111. 44; Lee v. Rug- gles, 62 111. 427. But does not apply to special assessments. Hundley v. Commissioners, 67 HI. 559. Equality and uniformity of ben- efits and burdens in special assess- POWEES AlID EESTEICTIONS. § 85 Indiana. 85. " The general assembly shall provide by law for a uniform and equal rate of assessment and taxation, and shall prescribe such rules and regulations as shall secure a just valuation for taxation of all property, both real and personal, excepting only for municipal, educa- tional, literary, scientific, xeligious, or charitable pur- poses as may be specially exempted by law." Art. X, Sec. 1. Local and special laws may not be passed " for the assessment and collection of taxes for state, county, township or road purposes." Art. IV, Sec. 22. These provisions are held, in various cases in which one or both of them were questioned, not to inhibit the levy of special assessments upon property benefited by street im- provements, and special provisions for street improvements are discernible in several of the earlier charters, notably those of Lawi'enceburg and Vevay in 1846, and of Peru in 1848,*^ while the act of 1857 expressly authorized the imposition by the city of Indianapolis of similar charges upon abutting property ; ^* and five years earlier the same ments for public local improve- of the constitution as violating the mcnts of streets by cities and vil- principle of uniformity and equal- lages, are not essential under the ity required in taxation, present Illinois constitution and Wilbur v. Springfield, 123 111. legislation on that subject. 395, 14 N. E. 871. Murphy v. People, 120 111. 234, A special tax in proportion to 11 N. E. 202. frontage for a street improvement An ordinance requiring the cost must charge each piece of land in of improving a street or sidewalk the proportion its front hears to to be levied by special taxation that of all the land abutting on upon real estate abutting thereon, the line of improvement, for its in proportion to the frontage of share of the entire cost of the im- the several lots, is valid. provement. Springfield v. Green, 120 111. Ware v. Jerseyville, 158 111. 234, 269, 11 N. E. 261. 41 N. E. 736. An ordinance for a street im- 32 Palmer v. Stumph, 29 Ind. provement by special taxation of 329. the lots fronting thereon in pro- 33 Indianapolis v. Mansur, 15 portion to the number of feet Ind. 112. frontage, is not in contravention 5 65 § 86 THE LAW OF SPECIAl ASSESSMENTS. system was authorized to be used to defray the expenses of constructing levees and drains, upon the principle of bene- fits.3* Kansas. 86. " The legislature shall provide for a uniform and equal rate of assessment and taxation." Art. XI, Sec. 1. " Provision shall be made by general laws for the or- ganization of cities, towns and villages, and their power of taxation and assessment, etc., shall be so restricted as to prevent the abuse of such power." These provisions have been held not to preclude the legis- lature of the power to lay special assessments on abutting property to pay for street improvements. Indeed, this state was among the earliest of the western commonwealths to exercise this legislative power, and in 1864 the charter of the city of Leavenworth clothed the local authorities with the requisite permission, and it was expressly held that the " equal and uniform clause " means that if the state levies 34 Anderson v. Kerns Drain. Co., for a uniform and equal rate of 14 Ind. 199, 77 Am. Dec. 63, and assessment and taxation, generally, as to the constitutional Gilson v. Commissioners, 128 provisions cited, see, in addition Ind. 65, 11 L. R. A. 835, 27 N. B. to last three cases, Goodrich v. 239. Turnpike Co., 26 Ind. 119; Bright V. McCuUough, 27 Ind. 223; Tur- ^"^ *° P"^' *"**"'» *" P"*^^'" pin V. Eagle Creek, etc., Co., 48 *" °° *• ,, ^ ,. „ Ind. 45; Eeinken v. Fuehring, 130 ^ ^"^ ^^857, the Indiana Supreme Ind. 382, 15 L. R. A. 624, 30 Am. <^''""*^ ^^^^ ^'^''^ ^° ^"^ authorizing St. Rep. 247, 30 N. E. 414; La- ^ municipality to levy a tax to fayette v. Jenners, 10 Ind. 70; P^ /<"• *""'"" '" ^he public Bank V. New Albany, 11 Ind. 139. ^''^°°^^ ^^^ '"^ ""''^"^^ ^'^^ t^« constitution of the state, but spoke Uniformity and equality. approvingly to the point that mu- If a tax law provides that the nicipal corporations might be au- rate of assessment and taxation thorized to raise money by taxa- shall be uniform and equal tion to build school houses, but throughout the locality in which that the assessment should per- the tax is to be levied, it does not haps be for that specific purpose. violate the constitutional require- La Fayette v. Jenners, 10 Ind. ment that a tax law shall provide 70. 66 POWEES AND EESTEIOTIONS. § 87 the tax, the rate must be equal and uniform throughout the state, and if the county, they must be equal and uniform throughout the county, and so of the township, city or village.*^ And when questioned in the light of the re- strictions upon the unlimited power of taxation, the legality of the act in question was quickly sustained, the learned chief justice who wrote the opinion arguing that under the general grant of power the legislature may authorize charges upon adjacent property for improvements of streets and alleys, and is not bound by the first section of the eleventh article of the constitution to require that such charges shall be equal and uniform throughout the whole city.*® Kentucky. 87. Sec. 171. " Taxes shall be levied and collected for public purposes only. They shall be uniform upon all property subject to taxation within the territorial limits of the authority levying the same ; all taxes shall be levied and collected by general laws. Sec. 172. All property . . . shall be assessed for taxation at its fair cash value. Sec. 181. The general assembly shall not impose taxes for the purposes of any county, city, town or other municipal corporation, but may, by general laws, con- fer on the proper authorities thereof, respectively, the power to assess and collect such taxes." Judge Cooley says,*^ " The provisions of the constitution requiring uniformity of taxation, and taxation according to value, are merely declaratory of what always was the law of taxation within the state, and do not render invalid the assess- ment on abutting property of a part of the cost of a street improvement." ** But the judicial and legislative depart- 35 Hines V. Leavenworth, 3 Kan. Sectiona 171 and 174 of the 186. present constitution of Kentucky, 38 Ihid. which require uniformity of tax- 3T Cooley, Taxation (3d Ed.) ation according to value, announce 1189. nothing new, but are merely de- 38 Maddux v. Newport, 12 Ky. claratory of what was always the L Kep. 657, 14 S. W. 957. law of taxation in this state, and, 67 § 88 THE LAW OF SPECIAL ASSESSMENTS. ments of this commonwealth have not agreed to any very com- mendable degree. A statute of 1831 amendatory of the Louisville charter, and authorizing special assessments, was declared in 1837 to be unconstitutional and void, the argu- ment being that the charges imposed, not being general and according to a fixed valuation, were not taxes, and that be- cause they were not taxes, it was an attempt to take property without due compensation.*® Similar legislative authority was some three years later upheld, but only " by hypothetical construction of a quasi-municipal corporation out of each separate square in the city," a judicial erection which their brother architects in other states have wisely refused to copy.*** But the trend of judicial decision has gradually been towards sustaining the system of local assessment, and is now firmly intrenched in the jurisprudence of the state.*^ — — Louisiana. 88. " Taxation shall be equal and uniform throughout the state." By a long course of decisions, running through three- fourths of a century, special assessments have been declared not to be precluded by the above constitutional provision, and that the clause applies only to state taxation, and not to municipal taxes. *^ therefore, do not forbid local as- Hargue, 88 Ky. 251, 10 S. W. 809 ; sesaments to pay for improvements and see Covington v. Boyle, 6 of streets or the construction of Bush. 204; Bradley v. McAtee, 7 sewers. Bush. 667, 3 Am. Eep. 309 ; Broad- Holzhauer v. Newport, 94 Ky. way, etc.. Church v. McAtee, 8 396, 22 S. W. 752. Bush. 508, 8 Am. Rep. 480; Cald- 3» Sutton's Heirs v. Louisville, well v. Rupert, 10 Bush. 179. 5 Dana, 28; approved in the later laMunie. No. 2 v. Duncan, 2 case of Rice v. Danville & D. L. & La. Ann. 182; Lafayette v. Cum- N. Turnpike Co., 7 Dana, 81. mins, 3 La. Ann. 673; Yeatman v. 40 Lexington v. McQuillan's Crandall, 11 La. Ann. 220; Wal- Heirs, 9 Dana, 513, 35 Am. Dec. lace v. Shelton, 14 La. Ann. 498; 159. Richardson v. Morgan, 16 La. Ann. *iGosnell v. Louisville, 104 Ky. 429; Petition of New Orleans, 20 201, 46 S. W. 722; Wolfe v. Me- La. Ann. 497; Barber Asphalt Pav- POWEES AND EESTEICTIONS. § 89 The first specific act authorizing special assessments was in 1832, when it was provided that the expenses of opening new streets in New Orleans should be paid by assessments for benefits on property adjacent, instead of being defrayed by the public treasury, as theretofore.** 89. " All taxes upon real and personal estate, assessed by authority of this state, shall be apportioned and assessed equally, according to the just value thereof." Art. IX, Sec. 8. The act of 118, authorizing and directing the municipal authorities to assess a tax " upon the lots and parcels of land " benefited by the construction of a sewer to the extent of one half its cost, and establishing a lien upon such real estate for the collection thereof, is not in contravention of the constitutional provision.** And as early as 1872, a statute authorized an assessment upon the lots adjacent " in proportion as such lots are benefited or made more valuable by such laying out, widening, alteration or discontinuance," for laying out, widening or altering any new street.*^ ing Co. V. Gogreve, 41 La. Ann. nouneed by one of the justices who 251, 5 So. 848; M. K. & T. Trust concurred in the opinion, in Yeat- Co. V. Smart, 51 La. Ann. 416, 25 man v. Crandall, 11 La. Ann. 220. So. 443; Shreveport v. Prescott, 51 Ordinance taxing abutter one third La. Ann. 1895, 46 L. E. A. 193, 26 cost. So. 664. An ordinance imposing on the *3 Municipality No. 2 v. White, abutting proprietor one-third of 9 La. Ann. 446. the expense of paving the street Special taw to build embankments, is constitutional, and not obnox- A special tax on a parish, passed ious to the constitutional require- under an express statute, to de- ments of equality and uniformity, fray the expense of certain em- New Orleans v. Elliott, 10 La. bankments to protect the parish Ann. 59. from overflow, was held unconsti- The court claim to follow the tutional, as being a tax for a pub- Benton Street Case, 9 La. Ann. lie purpose, and as such violating 446, but the reasoning is some- the constitutional requirements as what narrow and strained, to equality and uniformity. ** Auburn v. Paul, 84 Me. 212, Cumming v. Police Jury, 9 La. 24 Atl. 817. Ann. 503. <» Maine Eev. Stats. 1884, ch. This rule was formally re- 18, sec. 31. 69 §§ 90, 90 a THE LAW OF SPECIAX ASSESSMESTTS. Maryland. 90. This state copies its legislation largely from New York, and its supreme court hold that the principle of equality in taxation is fully met by making local taxation equal and uniform as to all property within the limits of the taxing district, and that as between different taxing districts, whether the district be an entire city, or only part thereof, uniformity is not required in local taxation.*® As early as 1847 the system of local assessment was judicially sus- tained ; *'^ both as an exercise of the taxing power, as well as under the right of eminent domain, and the constitutionality of the principle is no longer open to doubt.*® Art. 15 of the Declaration of Eights, is the section pertaining to taxa- tion, and is as follows : " The levying of taxes by the poll is grievous and op- pressive, and ought to be prohibited ; paupers ought not to be assessed for the support of the government; but every person in the state, or person holding property therein, ought to contribute his proportion of public taxes for the support of the government, according to his actual worth in real or personal property; yet fines, duties or taxes may properly and justly be imposed or laid, with a political view for the good government and benefit of the community." Massachusetts. 90a. The general court has full power " to impose and levy proportional and reasonable assessments, rates and taxes upon all the inhabitants of, and persons resident and estates lying within, the said commonwealth." Part II, Chap. 1, Art. IV. In an early case,*® it was held that in requiring that taxes should be proportional and reasonable, the framers of the 46 Daly V. Morgan, 69 Md. 460, Md. 451; Steuart v. Mayor, etc., 1 L. R. A. 757, 16 Atl. 287. 7 Md. 500; Henderson v. Mayor, *7 Alexander v. Mayor, 6tc., 5 etc., 8 Md. 352. Gill, 383, 46 Am. Dec. 630. 49 Oliver v. Washington Mills, 48 Howard v. Ind. Church, 18 11 Allen, 268. 70 POWERS AND EESTBICTIONS. § 91 constitution intended to erect a barrier against an arbitrary, unjust, unequal, or oppressive exercise of the power, and such requirement does not prevent a town from raising a tax to pay part of the expense of locating the state agricul- tural college therein, ^° nor from laying local assessments according to benefits, for local improvements.^^ The latter decision definitely affirmed the constitutionality of the act of 1865 providing for a system of special assessments, al- though as early as 1781 there was upon the statute book an act providing for a similar method of taxation to help pay the cost of widening and improving streets which had been laid waste by fire.®* ^^ l/Eichigan. 91. " The legislature shall provide an uniform rule of taxation, except on property paying specific taxes, and taxes shall be levied on such property as is pre- scribed by law." " All assessments hereafter authorized shall be on property at its cash value." Art. XIV, Sees. 11 and 12. Several decisions of the supreme court of the state have construed these provisions as applying only to general taxa- tion, and not to special assessments.^^ This system was au- thorized in the city charter of Detroit in 1827, and its con- stitutionality affirmed in 1853,'* although in a later decision the method authorized, which required each lot-owner to pay the cost incurred along his lot line, was repudiated as not providing an apportionment.®' 60 Merrick v. Amherst, 12 Allen, Michigan, requiring the legislature 500. to provide a uniform system of 51 Dorgan v. Boston, 12 Allen, taxation, is not self executing, nor 223. did it become operative until some 52 Special Laws, Mass., p. 21. rule complying with its terms was B3 Motz V. Detroit, 18 Mich. 495; formulated by the legislature. Hoyt V. East Saginaw, 19 Mich. Williams v. Detroit, 2 Mich. 560. 39 2 Am. Rep. 76. Taxation not equivalent to assess- 6* Williams v. Mayor, etc., 2 Mich. 560. The provisions of the Michigan B5 Sec. 11, Art. XIV., Const, of Constitution with respect to taxa- 71 §§ 92, 93 THE LAW OF SPECIAL ASSESSMEBTTS. —- Minnesota. 92. " All taxes to be raised in this state shall be as nearly equal as may be, and all property on which taxes are to be levied shall have a cash valuation, and be equal- ized and uniform throughout the state." This was amended afterwards by adding " Provided that the leg- islature may, by general law or special act, authorize municipal corporations to levy assessments for local im- provements upon the property fronting upon such im- provements, or upon the property to be benefited by such improvements, without regard to cash valuation, and in such manner as the legislature may prescribe, and provided further, that for the purpose of defraying the expenses of laying water-pipes and supplying any city or municipality with water, the legislature may, by general or special law, authorize any such city or munic- ipality, having a population of five thousand or more, to levy an annual tax or assessment upon the lineal foot of all lands fronting on any water-main or water-pipes laid by such city or municipality within corporate limits of said city, for supplying water to the citizens thereof, without regard to the cash value of such property, and to empower such city to collect any such tax assessments, or fines or penalties for failure to pay the same, or any fine or penalty for any violation of the rules of such city or municipality in regard to the use of water, etc." Art. IX, Sec. 3. 93. Before the amendment of 1869, it was held that this section was applicable to city assessments for grading streets, and that such assessment must be apportioned according to tion do not apply to assessments constitution requiring a uniform for local improvements; and valu- rule of taxation, and cash valua- ation of the property taxed for tion, in the assessment of prop- such improvements is not a neces- erty (Const. Art. 14, sees. 11, 12) sary element in the apportion- have no application to local assess- ment of the taxes. ments for local improvements, such Woodbridge v. Detroit, 8 Mich, as grading and paving a street, 274. but relate only to the valuation " Uniformity and equaUty " do not of property and its taxation for apply to " assessments." general purposes. The provisions of the Michigan Motz v. Detroit, 18 Mich. 495. 72 POWEES AITD EESTEICTIONS. § 94 the cash valuation of the land.®® But this basis of assess- ment was so manifestly unjust, as to cause the amendment of the constitution as it now exists. It has been expressly held to authorize the legislature to confer the power upon counties.®'' Mississippi. 94. " Taxation shall be equal and uniform through- out the state. Property shall be taxed in proportion to its value." Sec. 112. As early as 1853, the courts upheld the Aberdeen charter of 1846 authorizing assessments for street improvements,*® and the power has been repeatedly upheld since. As the supreme court of that state say, in one of the strongest and best reasoned cases in the books : " We believe the power exists: it has been recognized as an existing power in the state by the public, the legislature, and by at least three decisions of this court." ®® 56 Stinson v. Smith, 8 Minn. 366, Gil. 326; Bidwell v. Coleman, 11 Minn. 78, Gil. 45. The constitutional rule requiring uniformity of taxation is not vio- lated by a law authorizing and requiring a partial assessment based on the estimated cost. State V. District Court, 61 Minn. 642, 64 N. W. 190; State v. Nor- ton, 63 Minn. 497, 65 N. W. 935. ST Dowlan v. Sibley Co., 36 Minn. 430, 31 N. W. 517. The constitutional requirement of equality In taxation applies to assessments for local improve- ments, but an act is not void be- cause inequality may result, but only where it must result. State V. District Court, 33 Minn. 235, 22 N. W. 625, 632. 58 Smith v. Aberdeen, 25 Miss. 458. 59 Vasser v. George, 47 Miss. 713; Chrisman v. BrookKaven, 70 Miss. 477, 12 So. 458. In point of principle and con- stitutional power, there is no dif- ference between taxes imposed for a general purpose, and those im- posed for a local purpose. Williams v. Cammack, 27 Miss. 209, 61 Am. Dec. 508. The legislature has power to im- pose a tax on a local district for the construction of local public improvements, and such acts are not in conflict with constitutional restrictions. Williams v. Cammack, 27 Miss. 209, 61 Am. Dec. 508; Alcorn v. Hamer, 38 Miss. 652. The " equal and uniform " tax- ation clause in constitution does not include local assessments. Daily v. Swope, 47 Miss. 367. n §§ 95-9Y THE LAW OF SPECIAL ASSESSMENTS. Missouri. 95. In 1853, the principle of special assessment was au- thorized, and has received the consistent support of the courts.®" It has been applied to assessments for the pur- pose of constructing levees,®^ and the principle of equality and uniformity in taxation is held to be inapplicable to this mode of taxation.®^ Nebraska. 96. There is a provision in the constitution very similar to that in the constitution of Wisconsin, requiring the legis- lature to provide for the organization of municipal corpora- tions, and to restrict their power of assessment and taxa- tion, and it has been held sufficient to authorize the legisla- ture to permit local assessment upon abutting property for street improvements,®^ while the provisions of Art. IX, Sec. 1, of the constitution, requiring uniform taxation, are con- strued to relate to the revenue required for the general pur- poses of state and municipal government, and have no appli- cation to taxes or assessments levied for local purposes.** . Nevada. 97. " The legislature shall provide by law for a uniform and equal rate of assessment and taxation, and The power to make local assess- St. Joseph v. Owen, 110 Mo. 445, ments is distinct from the right of 19 S. W. 713. eminent domain, and, though a The constitutional provision for taxing power, it is special and taxation according to value ap- peculiar, and is not regulated by plies to taxation for general state, the constitutional provisions as to county, city and town purposes, equality and uniformity on an ad and not to local assessments where valorem basis. the money raised is expended on Macon v. Patty, 57 Miss. 378, the property taxed. 34 Am. Rep. 451. Egyptian Levee Co. v. Hardin, 80 Garrett v. St. Louis, 25 Mo. 27 Mo. 495, 72 Am. Rep. 276. 505, 69 Am. Dec. 475. 63 Hurford v. Omaha, 4 Neb. 336. «i Egyptian Levee Co. v. Hardin, «* Irrigation District v. Collins, 27 Mo. 495, 72 Am. Rep. 276. 46 Neb. 411, 64 N. W. 1086. 62 Adams v. Lindell, 72 Mo. 198; u POWEES ASD EIBTEICTIONS. §§ 98-100 shall prescribe such regulations as shall secure a just valuation for taxation of all property." Art. X, Sec. 1. This requirement has not been construed with reference to special assessments. New Hampshire. 98. Authority is given to the general court " to impose and levy proportional and reasonable assessments, rates and taxes upon all the inhabitants of, and residents within and upon all the estates within the state." Part II, Art. 5. Although legislation, authorizing the imposition of charges for sewer construction was had in 1870, *^ and five years later for miscellaneous street improvements, the constitution- ality of the legislation does not appear to have been chal- lenged in the courts. The uniformity required is that the tax should be uniform throughout the taxing district.®®' New Jersey. 99. At an early date, the constitutionality of the sys- tem was affirmed in New Jersey, and is no longer questioned in that state, where it has witnessed a great development.®* The constitution requires property to be assessed by general rules, according to value, and under general laws. Art. IV, Sec. VII, Sub. 12. New York. 100. The constitution of this state contains no limita- tion upon the power of the legislature on the subject of tax- ation, except that each law imposing a tax shall state the purpose to which it shall be applied. 6s General Laws, N. H., 1878, etc., E. E. Co. v. State, 60 N. H. ch. 78, sec. 7. 87. 6 Ba State v. U. S. & Can. Ex. es State v. Dean, 23 N. J. L. Co., 60 N. H. 219, 243; Boston, 335; State v. Newark, 27 N. J. L. 185. 75 §§ 101, 102 THE LAW OF SPECIAL ASSESSMENTS. North Carolina. 101. The requirements are that taxes be imposed by a uniform rule upon moneys, credits, and investments, and upon real and personal property according to its true value, and that such taxes as are levied by any county, city, town or township shall also be uniform and ad valorem upon all property therein. Although the earlier decisions construing these provisions arose under the act of 1881 providing for fencing in townships at the cost of the owners benefited, the reasoning applies well to cases of special assessment, and the court decided these constitutional inhibitions " are not within the restraints put upon general taxation," *^ while in a later case the imposition of a tax according to benefit to pay for a local improvement was expressly upheld.^® — North Dakota. 102. " The legislative assembly shall provide by general law for the organization of municipal corpora- tions, restricting their powers as to levying taxes and assessments, . . . and money raised by taxation, loan or assessment shall not be diverted to any other purpose except by authority of law." Sec. 130. " Laws shall be passed taxing by uniform rule all property according to its true value in money." Sec. 176. BT Special assessments, although Peace, 110 N. C. 32, 17 L. R. A. taxes in a, general sense, in that 330, 14 S. £. 521. the authority to levy them must The principle of equality and be derived from the legislature, uniformity does not apply to local are nevertheless not considered as assessments imposed upon owners taxes falling within the restraints of property who, in respect of such of the constitution as to being ownership, are to derive a special equal and uniform, although the benefit in the local improvements principles of uniformity govern for which the tax is expended, both. Cain v. Commissioners, supra. Shuford V. Commissioners, 86 «» Commissioners v. Commission- N. C. 552 ; Cain v. Commissioners, ers, 92 N. C. 180 ; Hllliard v. 86 N. C. 8; Busbee v. Commis- Asheville, 118 N. C. 845, 24 S. E. sioners, 93 N. 0. 143 j Raleigh v. 738. 76 POWERS AlfD EESTEICTIONS. §§ 103-105 The latter seotion has been construed to relate to general taxation, and not to special assessment, and the front-foot rule to be proper.®® Ohio. 103. " The general assembly shall provide for the or- ganization of cities, anf". incorporated villages, by general laws, and restrict their power of taxation, assessment, &c." Art. XIII, Sec. 6, Constitution of 1851. Under this section, legislation authorizing cities and vil- lages to levy special assessments for the purpose of improv- ing streets, upon property specially benefited, is not repug- nant to its terms, and it may be laid according to the number of feet abutting thereon.''** Oregon. 104. The legislative assembly shall provide by law for uniform and equal rate of taxation." Art. IX, Sec. 1. Under this section, a special assessment upon lots abut- ting a street for the improvement thereof, is not obnoxious as not being equal and uniform assessment and taxation.''^ Pennsylvania. 105. " All taxes shall be uniform upon the same class of subjects within the territorial limits of the authority «9Rolph V. Fargo, 7 N. Dak. TiKing v. Portland, 2 Or. 146; 640, 42 L. R. A. 646, 76 N. W. Cook v. Port of Portland, 20 Or. 242. 580, 13 L. E. A. 533, 27 Pac. 263; 70 Bonsall v. Lebanon, 19 0. Masters v. Portland, 24 Or. 161, 418; ScovlU V. Cleveland, 1 0. St. 33 Pac. 540. 126; Hill V. Higdon, 5 O. St. 243, An assessment limited to the 67 Am. Dec. 289; Marion v. Ep- benefits actually received is not in ler, 5 O. St. 250; Ernst v. Kun- conflict with the constitutional re- kle, 5 O. St. 520 ; Reeves v. Wood quirement that " all taxation shall Co., 8 0. St. 333; Foster v. Wood be equal and uniform." Co., 9 O. St. 540; N. 1. R. R. Co. King v. Portland, 38 Or. 402, V. Connelly, 10 O. St. 159; Maloy 55 L. R. A. 812, 63 Pac. 2; Kad- V. Marietta, 11 O. St. 636; Creigh- derley v. Portland, 44 Or. 118, 74 ton V. Scott, 14 O. St. 438; State Pac. 710, 75 Pac. 222. V. Warren Co., 17 0. St. 558. 77 §§ 106, 107 THE LAW OF SPECIAL ASSESSMENTS. levying the tax, and shall be levied and collected under gen- eral laws." Art. IX, Sec. 1. But this section has no ap- plication to assessments for street improvements.'^^ 106. In the year 1700, in old provincial days, commis- sioners were authorized to be appointed by the governor in council for regulating and repairing streets, docks and drains, to be paid for in proportion to the number of feet of each ovnier in proportion to the whole.''* The system was recognized by appropriate legislation at intervals, and some of the earlier charters bear witness to the fact, but in 1832 Pittsburgh was authorized to apportion the cost of street opening proceedings according to benefits, and the act declared constitutional, the court stating that this prin- ciple was a new feature introduced from the laws of New York into those of the commonwealth.'* The constitutional- ity of proceedings by special assessment has been affirmed by numerous decisions of the courts of Pennsylvania, and is no longer questioned in that state, and is recognized as a branch of the taxing power.'* Rhode Island. 107. " The burdens of the state ought to be fairly dis- tributed among its citizens " is the equitable duty enjoined by the constitution, and does not render invalid special as- sessments authorized under the act of 1854, levying one- half the cost of the street improvement upon the estates adjudged to be benefited.'® Ta Beaumont V. Wilkesbarre, 142 25 Pa. St. 128; Philadelphia v. Pa. St. 198, 21 Atl. 888; Chester Tryon, 35 Pa. St. 401; Schenley V. Black, 132 Pa. St. 568, 6 L. E. v. Allegheney, 36 Pa. St. 29, 78 A. 802, 19 Atl. 276. Am. Dec. 359. 73 Dissenting op. of Read, J., in Taxation is an attribute of aov- Hammett v. Philadelphia, 65 Pa. ereignty to be exercised by the St. 146, 3 Am. Rep. 615. legislature in accordance with the TiMcMasters v. Commonwealth, constitution, but equality of tax- 3 Watts, 292. ation is not enjoined by the bill 'B Fenelon's Petition, 7 Pa. St. of rights. 173; Hancock St. Extension, 18 Kirby v. Shaw, 19 Pa. St. 258. Pa. St. 26; Schenley v. Allegheney, ^e Matter of Dorrance Street, 4 78 POWERS AlfD EESTEICTIONS. §§ 108, 109 —— Sontli Carolina. 108. Art. I, Sec. 6. " All property subject to taxa- tion shall be taxed in proportion to its value." Art X, Sec. 1. " The general assembly shall provide by law for a uniform and equal rate of assessment and taxation and shall prescribe such regulations as shall secure a just valuation for taxation of all property, real, personal and possessory, except mines and mining claims, the proceeds of which alone shall be taxed, and also exempting such property as may be exempted by law for municipal, educational, scientific, religious or charitable purposes." Under the earlier cases, it was held that the council was legally possessed of the power to assess abutting proprietors with the expense of a pavement, '^'^ but that doctrine was later squarely denied, the court holding that " the right to tax property abutting upon a public street to pay the cost of improvements upon the same, according to the supposed benefit to such property by such improvement is distinctly repudiated."''* 109. The court, in another portion of the opinion, evi- dently feels the singularity of its position in being the only court of last resort to deny the right of the legislature to authorize special assessments for local improvements, and almost plaintively asks : " Granted, as it may be, that emi- nent text- writers and the judicial tribunals of many states of this Union adopt a different view of the matter, why may not the people of this commonwealth adopt a domestic policy at variance with the views of others ? " ''^ The court has R. I. 230; Cleveland v. Tripp, 13 legislative sanction, levy a tax to R. I. 50; Bishop v. Tripp, 15 R. I. pay for improvements in its 466, 8 Atl. 692. streets, but it may not assess the TT City Council v. Pinckney, 3 cost, or any part thereof, of such Brev. 217; Cruikshanks v. City improvements exclusively upon Council, 1 McCord, L. 360. abutting real property, to the ex- 's Mauldin v. Greenville, 42 S. tent of the supposed benefits ac- C. 293, 27 L. R. A. 284, 46 Am. cruing from such improvements, St. Rep. 723, 20 S. E. 842. there being no express authority 79 A city council may, under to be found therefor in the consti- 19 §§ 110-112 THE LAW OP SPECIAL ASSESSMEO!fTS. recently, relying upon the provisions of the new constitu- tion, reversed its former decision allowing special assess- ments for sidewalks and sewers, and unqualifiedly rejects- the whole system as contrary to its constitution.'^** South Dakota. Constitution of 1890. 110. " The legislature may vest the corporate au- thority of cities, towns and villages with power to make local improvements by special taxation of contiguous property or otherwise. For all corporate purposes, all municipal corporations may be vested with authority to- assess and collect taxes ; but such tax shall be uniform in respect to persons and property within the jurisdiction of the body levying the same." Art. IX, Sec. 10. 111. The provision of the organic law of the Territory of Dakota that " All property subject to taxation shall be taxed in proportion to its value," relates only to general, county and municipal taxes, levied to defray the ordinary ex- penses of the government, and not to assessments for local municipal improvements.*" The new constitutional provision nearly resembles that of Illinois, and would probably receive similar construction. — — Tennessee. 112. Under the constitutional provision that " all prop- erty shall be taxed according to value," the system of taxa- tution, or in "the law of the drains and sewers may be assessed land " — that is to say, the com- upon the abutting land. mon law and statute law existing Mauldin v. Greenville, 42 S. C. at the adoption of the constitu- 293, 27 L. R. A. 284, 46 Am. St. tion. But by force of decisions Eep. 723, 20 S. E. 842. rendered prior to the present con- 79a Mauldin v. Greenville, 53 S. stitution, and, therefore, the "law C. 285, 43 L. R. A. 201, 69 Am. of the land" within the meaning St. Rep. 855, 31 S. E. 252. of the constitution, the cost of im- «o W. & St. P. R. Co. v. Water- provements to sidewalks and of town, 1 8. Dak. 46, 44 N. W. 1072. 80 POWEES AND EESTEICTIONS. §§ 113, 114 tion by assessment, according to benefits, is prohibited. Tbe distinction between assessments and taxation is recognized, but is deemed inapplicable under the constitutional provi- sion restricting municipal taxation to a rule of uniformity according to value.* ^ The early cases were authority to the contrary, but may now be relegated to the list of overruled cases.** Texas. 113. The constitutional requirement that " taxation shall be equal and uniform throughout the state," is not ap- plicable to taxation by special assessment.*^ Vermont. 114. It was decided by the highest court of this state in 1872 that the legislature might confer upon municipal- ities power to levy assessments to pay for sidewalks, aque- siMcBean v. Chandler, 9 Heisk. 349, 124 Am. Rep. 308; State v. Butler, 11 Lea, 418. A special assessment on lands in a levee district to erect a levee for the special protection and ben- efit of the lands situated therein, is such a tax as falls within the constitutional requirement that taxes shall be levied upon all prop- erty according to value. Eeelfoot, etc.. District v. Daw- son, 97 Tenn. 151, 34 L. E. A. 725, 36 S. W. 1041. The levy of a tax on property, in specie, or by the acre, regard- less of its value, violates the con- stitutional requirement that all property (including personal) shall be taxed according to value, and is void. Reelfoot, etc., Dist. v. Dawson, 97 Tenn. 151, 34 L. R. A. 725, 36 S. W. 1041. « 81 82 Mayor v. Maberry, 6 Humph. 368, 44 Am. Dec. 315; Washington v. Mayor, 1 Swan, 177; Whyte v. Mayor, 2 Swan. 364. Note. Since the text was written, the case of Arnold v. Knoxville, 90 S. W. 469, has been decided, com- pletely overruling the earlier cases of Taylor v. Chandler, 9 Heisk. 352, 24 Am. Rep. 308, and Reelfoot Lake Dist. v. Dawson, 97' Tenn. 151, 36 S. W. 1041, 34 L. R. A. 725, which held special assess- ments to be unconstitutional. The opinion is quite exhaustive, and has the effect of leaving to South Carolina the unenviable distinction of being the only state that denies the power to levy special assess- ments for benefits. 83 Roundtree v. Galveston, 42 Tex. 612; Taylor v. Boyd, 63 Tex. 533. §§ 115, 116 THE XAW OF SPECIAX. ASSESSMENTS. ducts, sewers and streets. The constitution contains no " uniformity or equality " provision, and is silent as to spe- cial assessments.®* Virginia. 115. " Taxation, whether imposed by the state, county, or corporate bodies, shall be equal and uniform." . . . " All property, both real and personal, shall be taxed in pro- portion to its value, to be ascertained as prescribed by law," . . . " no one species of property shall be taxed higher than any other species of property of equal value ; " these are the constitutional requirements inquired into by the courts as to authorizing local assessment. A generation ago, the highest court of the state sustained a paving assessment levied on the foot-front plan.®^ The question as to constitutionality thus raised was sustained in a later decision, the court saying, " It is sufficient to say that the right to make such assessments, unless prohibited by some constitutional provision, is almost universally conceded." *® But again, the court appears a little later to doubt the au- thority of the legislature to authorize local assessments for public improvements, but has not changed the rule.®'' Washington. 116. " Taxes shall be equal and uniform, and ac- cording to value "... and " for all corporate purposes, all municipal corporations may be vested with authority to assess and collect taxes, and such taxes 8* "General taxation implies a ss Norfolk v. Ellis, 26 Gratt. distribution of the burden upon 224. some general rule of equality. So so Sands v. Richmond, 31 Gratt. a. local assessment, or tax for a 571, 31 Am. Eep. 742; R. & A. local benefit, should be distributed E. R. Co. v. Lynchburg, 81 Va. among and imposed upon all equal- 473 ; Dayis v. Lynchburg, 84 Va. ly, standing in like relation. But 861, 6 S. E. 230. equality can never be but an ap- s^ Norfolk v. Virginia, 89 Va. proximation." 196, 16 S. E. 730. Redfield, J., in Allen v. Drew, 44 Vt. 174. 82 POWEES ANB KESTKICTIOWS. § llY shall be uniform in respect to persons and property within the jurisdiction of the body levying the same." Accordingly, it has been held that a charter provision that the cost of street improvements shall be assessed upon the lands benefited thereby in proportion to their frontage upon the improvement, is not in violation of the constitutional pro- vision that taxes shall be according to value, and shall be equal and uniform. ** Under the territorial organic act (U. S. Rev. St. Sec. 1924) declaring that " all taxes shall be equal and uniform, and no distinction shall be made in the assessment between different kinds of property," a section of a city charter pro- viding that " real estate only shall be assessed " for local im- provements, is not unconstitutional, as the first provision refers to general taxation only," ®* while the constitutional requirement as to equality and uniformity in taxation ap- plies only to the mode and rate of assessment, and is not a restriction upon the legislative power to direct the purposes for which tax collections may be expended. And a law pro- viding that the county treasurer shall collect special assess- ments levied in cities within its limits is not a violation of the rule.^" West Virginia. 117. The constitutional provision that taxes shall be "equal and uniform" does not apply to counties, cities, towns and villages,®^ nor to special assessments,®^* and laws for special assessments are deemed strictly constitutional en- actments.®^ 88 Austin V. Seattle, 2 Wash. »i Douglass v. Harrisville, 9 W. 667, 27 Pae. 557. Va. 162, 27 Am. Rep. 548. 89 Spokane Falls v. Brown, 3 »" Wilson v. Philippi, 39 W. Va. Wash. 84, 27 Pae. 1077. 75, 19 S. B. 553. »o State V. Mudgett, 21 Wash. sz Parkersburg v. Tavenner, 42 99, 57 Pae. 351. W. Va. 486, 26 S. E. 179. 83 §§ 118, 119 THE LAW OF SPECIAL ASSESSMENTS. Wisconsin. 118. " The rule of taxation shall be uniforin, and taxes shall be levied upon such property as the legisla- ture shall prescribe." Art. VIII, Sec. 1. " It shall be the duty of the legislature, and they are hereby empowered, to provide for the organization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, con- tracting debts and loaning their credit, so as to prevent abuses in assessments and taxation, and in contracting debts by such municipal corporations." 119. By several decisions of the Supreme Court of the state, it has been held that assessments of special taxes for constructing streets and sidewalks cannot be sustained under the rule of uniformity of taxation alone, but can be under the latter provision requiring the legislature to restrict the power of municipal corporations in making assessments. The latter word has reference to the system of special taxa- tion for municipal improvements, in existence at the time of the adoption of the constitution, and is a recognition of the existence of the power to levy such taxes, and to that ex- tent modifies the rule of uniformity required in Art. VIII.®^ And they may be authorized upon adjoining property for the improvement of highways by water as well as upon land.** Assessments are special taxes, and it is within the legislative power to exempt therefrom particular classes of property." The only substantial distinction between ordinary taxes and special assessments for benefits is that the former are based on value and subject to the constitutional rule of uniformity, while the latter are not.*® All taxes levied for the purposes 93 Weeks v. Milwaukee, 10 Wis. o* Johnson v. Milwaukee, 40 242; Lumsden v. Cross, 10 Wis. Wis. 315. 282; Bond v. Kenosha, 17 Wis. »s Milwaukee, etc., Co. v. Mil- 284; Hale v. Kenosha, 29 Wis. waukee, 95 Wis. 42, 69 N. W. 796. 599. And see, also, Mitchell^ v. »« Dalrymple v. Milwaukee, 53 Milwaukee, 18 Wis. 93; May v. Wis. 178, 10 N. W. 141; Yates v. Holdridge, 23 Wis. 93; Blount v. Milwaukee, 92 Wis. 352, 66 N. W. Janesville, 31 Wis. 648. 248. 84 POWEES AND EESTEICTI0N8. §§ 120-122 of revenue and for the support of the government and munic- ipal corporations must be levied by the rule of uniformity prescribed in Art. VIII. But special taxes for street and other local improvements are not subject to such rule, and are levied upon specific property and not on the public at large.®'' 120. The first charter of the city of Milvraukee, in 1846, conferred upon the local authorities the power to impose a special charge on lots to pay for grading and improving streets, and laying sidevralks in front of the same, and was extended to include the benefits resulting from building piers into Lake Michigan.®* Constitutional restrictions — State constitutions not a grant of power. 121. The constitution of a state is not a grant of power, but a restriction on the power of the legislature. The pro- vision that the " legislature may vest the corporate authori- ties of cities, towns and villages with power to make local improvements by special assessments, or by taxation of prop- erty benefited," merely prescribes the rule of apportionment, and does not prohibit the legislature from conferring the power to make local improvements by special assessment upon other municipal corporations than those designated. ®® limitation on taxing power. 122. The taxing power of the legislature for public pur- poses is unlimited, except as specifically restrained by the Constitution. An assessment for a municipal improvement is a species of tax, and the imposition thereof is within the taxing power of the legislature. While the constitution au- thorizes cities to make local improvements by special taxa- »T Lumsden v. Cross, 10 Wis. 242 ; Soens v. Racine, 10 Wis. 271 ; 282. Bond v. Kenosha, 17 Wis. 284. »s Lumsden v. Cross, 10 Wis. »» State v. Dodge Co., 8 Neb. 282; Weeks v. Milwaukee, 10 Wis. 124, 30 Am. Rep. 819. 85 §§ 123, 124 THE -LAW OF SPECIAL ASSESSMENTS, tion, it at the same time forbids the taking of private prop- erty for public use with just compensation. These two pro- visions must be construed together, so that neither shall nullify the other. ^ Who may levy a tax. 123. Under the Illinois Constitution of 1848, the legis- lature had no power to confer upon private persons or cor- porations the authority to levy and collect taxes or special assessments. A tax must be levied for a public purpose, and be exercised only by public corporations or public officials.* And the legislature cannot by special act deprive the common council of all discretion as to a local improvement, where the city charter leaves to the judgment and discretion of the council the matter of such improvements, nor can the legisla- ture within the limits of a city directly exercise the power of special assessment, but it may authorize the municipal au- thorities to do so.* Effect of constitutional limitation on indebtedness. 124. The constitutional provision requiring the legisla- ture to restrict cities in their power of taxation and assess- ment, does not apply to special improvements for paving streets, and if it did, the act of the legislature authorizing an assessment is not void because it does not prescribe all of the particulars relating to such assessment,* and the limita- tion to four per cent of the value of taxable property within a municipality, is a limitation on the municipal authorities, but does not limit the power of the legislature to provide by 1 In re Van Antwerp, 56 N. Y. ers, 53 111. 105 ; Gage v. Graham, 261; Bloomington v. Latham, 142 57 111. 144. 111. 462, 18 L. R. A. 487, 32 N. E. s People v. Lynch, 51 Cal. J5, 506. 21 Am. Hep. 677; Ttistlng v. As- 2 Board of Directors V. Houston, bury Park (N. J. L.), 62 Atl. 71 111. 318; Harward v. St. Clair, 183. But see Cheney v. Beverly, etc., Drainage Co., 51 111. 130; 188 Mass. 81, 74 N. E. 306. Hessler v. Drainage Commission- * Raleigh v. Peace, 110 N. O. 86 POWERS AJ!ID EBSTBICTIONS. § 125 appropriate legislation for the levy of special assessments. " Courts will not impute to the legislature the intention of nullifying the judgments and decrees of courts of general jurisdiction in advance, when it would be beyond the consti- tutional power of that body to do so after they were made ; and especially in relation to statutory proceedings to divest the citizen of his property without his consent by confining the citizen to a particular mode of seeking his remedy.® The fourteenth amendment — Importance of. 125. The second sentence of the first section of the Four- teenth Amendment to the Federal Constitution, and which has been aptly described as rising to the dignity of a new Magna Charta, reads as follows : " Jlo State shall make or enforce any law which shall abridge the privileges or immu- nities of citizens of the United States, nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person Avithin its jurisdiction the equal protection of the laws." The provision of the Fifth Amendment that no person shall be deprived of life, liberty, or property without due process of law, is a restraint upon the power of Congress, while the Fourteenth Amendment is a direct restraint upon the power of the States, and the language subject to different construction. " While the language of these amendments is the same, yet as they were engrafted upon the Constitution at different times and in widely different circumstances of our national life, it may be that questions may arise in which different constructions and applications of their provisions may be proper. . . . Certainly it cannot be supposed that, by the Fourteenth Amendment, it was intended to im- pose on the States, when exercising their powers of taxation, any more rigid or stricter curb than that imposed on the Federal government in a similar exercise of poWer by the s Guthrie v. Territory, 1 Okla. « Union, etc., Ass'n v. Chicago, 188, 21 L. E. A. 841, 31 Pac. 190. 61 111. 439. 87 §§ 126, 127 THE LAW OF SPECIAL ASSESSMENTS. rifth Amendment." '' And the Supreme Court has as yet made no distinction between the two amendments as to what is " due process of law " in special assessment proceedings. Not only the Federal courts, but those of the States, have construed the language of these amendments, although it is a matter of sincere regret that greater harmony among the decisions, and greater unanimity in the courts pronouncing them, do not prevail. Assessment of cost of work against abutting property. 126. The Iowa statute requiring the council to ascertain the entire cost of the improvement, the portion assessable on adjacent property, and to assess such portion on such prop- erty as provided by law and ordinance, is not violative of the 14th amendment, especially in view of Oh. 29, acts of 28th General Assembly providing that all special assessments shall be levied according to benefits conferred.® 1 127. The Kentucky statute providing that street im- provements shall " be made at the exclusive cost of the own- ers of lots in each fourth of a square, to be equally appor- tioned " according to the number of square feet in such area belonging to the various owners, does not provide for any in- quiry as to benefits, and contravenes the provisions of the 14th amendment.® 7 French v. Barber Asphalt Pav- Detroit, 181 U. S. 396, 45 L. ed. ing Co., 181 U. S. 324, 45 L. ed. 914, 21 Sup. Ct. Rep. 644; Web- 879, 21 Sup. Ct. Eep. 625. ster v. Fargo, 181 U. S. 394, 45 8 Burlington Sav. Bk. v. Clinton, L. ed. 912, 21 Sup. Ct. Rep. 623; 106 Fed. 269. Detroit v. Parker, 181 U. S. 399, oZehnder v. Barber Asphalt 45 L. ed. 917, 21 Sup. Ct. Rep. Paving Co., 106 Fed. 103; L. & N. 624; Chadwick v. Kelley, 187 U. E. Co. V. Barber Asphalt Pav. Co., S. 540, 543, 544, 47 L. ed. 293- 197 U. S. 430, 49 L. ed. 819, 25 295, 23 Sup. Ct. Rep. 175; Schae- Sup. Ct. Eep. 466; Walston v. fer v. Werling, 188 U. S. 516, 47 Nevin, 128 U. S. 578, 32 L. ed. L. ed. 570, 23 Sup. Ct. Eep. 449; 544, 9 Sup. Ct. Eep. 192; French Seattle v. Kelleher, 195 U. S. 351, V. Barber Asphalt Pav. Co., 181 358, 49 L. ed. 232, 235, 25 Sup. U, S. 324, 45 L. ed. 879, 21 Sup. Ct. Eep. 44. Ct. Eep. 625; Cass Farm Co. v. 88 POWEES AND EESTEICTIONS. §§ 128-130 128. Neither the machinery provided for doing the work, the excessive price allowed for the same, the comparative value of the land to the relative importance of the v?ork, that the assessment is made before the work is done, that assess- ments exceed the benefits conferred, nor that personal judg- ments may be entered against the owner for the amount assessed, are matters in which the Federal constitution con- trols the state authorities.^'' 129. An objection that lots which should have been in- cluded in a special assessment district were not so included, thus creating unjust and excessive burdens, and violating the principle of equality of taxation, will not Ije heard after the expiration of the statutory time for presenting such ob- jections, nor in a case where the record fails to show specifi- cally that certain lots should have been included. ^^ The front foot rule. 130. This question is treated more fully in the follow- ing chapter, but it may be sufficient to state here that the numerical authority is to the effect that the assessment of the cost of a local improvement upon the property within the taxing district, in proportion to the number of feet of frontage of such property, is not repugnant to the Four- teenth Amendment. It has been expressly so held of the California street assessment law,^^ while in Indiana, and in a very strong opinion, the court found that the imposition of such assessments by the front foot, irrespective of accruing 10 Davidson v. New Orleans, 96 violation of the fourteenth amend- U. S. 97, 24 L. ed. 616. ment, as depriving a person of An ordinance, passed under au- property without due process o'f thority of statute, authorizing the law. appropriation of land for the pur- Scott v. Toledo, 36 Fed. 385. pose of a public street, and assess- n O'Dea v. Mitchell, 144 Cal. ing the cost of the same on the 374, 77 Pac. 1020. foot front rule, together with the 12 San Francisco Paving Co. v. expenses incidental thereto, upon Bates, 134 Cal. 39, 66 Pac. 2. the remainder of the land, is in 89 § 131 THE LAW OF SPECIAX ASSESSMENTS. benefits, was in direct violation of the Fourteenth Amend- ment,^* although in a very late case,^"* in referring to the decision, the same court say : " What was said in Adams V. Shelbyville, concerning a law which makes no provision for a hearing on the question of special benefits, and that such a law would be in violation of the Fourteenth Amend- ment to the Constitution of the United States, under the case of Norwood v.. Baker, 172 TJ. S. 269, was clearly obiter dicta, for the reason that no such question was before the court for decision." 131. The Supreme Court of the United States, the ulti- mate authority on questions arising out of the construction and application of the amendment, holds that assessing three- fourths of the cost of a street paving upon abutting prop- erty in proportion to frontage, and making such assessment a lien thereon, is not obnoxious to the Fourteenth Amend- ment,^^ and in a very recent case affirms an assessment made under the Kentucky statute providing for assessment ac- cording to area, although the property was used only for a railroad right of way, and its value was not enhanced by the improvement of the street.-** 13 Adams v. Shelbyville, 154 Ind. fact should invalidate an assess- 467, 49 L. R. A. 797, 77 Am. St. ment. Upholding the act as em- Ecp. 484, 57 N. E. 114. bodying a principle generally fair i*Voris V. Pittsburg, etc., Glass and doing as nearly equal justice Co., 163 Ind. 599, 70 N. E. 249. as can be expected seems to im- 15 Chadwick v. Kelley, 187 U. port that if a, particular case of S. 540, 47 L. ed. 293, 23 Sup. Ct. hardship arises under it in its Rep. 175, affirming same case in natural and ordinary application, 104 La. 719, 29 So. 295. that hardship must be borne as 18 The court say : " The whole one of the imperfections of human cost of the improvement is distrib- things. And this has been the im- uted in proportion to area, and a plication of the cases." And this particular area might receive no by the same court that decided benefits at all, at least if its pres- Norwood v. Baker, and declared ent and probable use be taken into in ringing language that the exae- accouut. If that possibility does tion from a property owner under not invalidate the act, it would the guise of a special assessment be surprising if the corresponding of anything in substantial excess 90 POWEES AJSm EESTEICTIONS. §§ 132-134 Priority of lien. 132. An act authorizing the issue of street improvement bonds, and making the bonds prior to all other liens, is not unconstitutional as impairing the obligation of a prior mort- gage, nor is it in violation of the Fourteenth Amendment," nor does the fact that the Illinois sidewalk act of 1875 does not limit the amount of the special tax to special benefits re- ceived by the property render the act obnoxious to the Fourteenth Amendment to the Federal Constitution, as such amendment was construed in Norwood v. Baker.-'* Equal protection of the laws. 133. A city charter provided that where any street has been graded to the established grade, the owner of any lot injured by a subsequent alteration of such grade shall be entitled to compensation therefor. In 1891, the legislature passed an act authorizing the city to change the established grades within a certain limited district (embracing forty- nine blocks), without any compensation being made for en- suing injuries, but the act was held unconstitutional as denying to lot owners in the specified district " the equal pro- tection of the laws." ^^ Due process of law. 134. The phrase " due process of law " antedates the establishment of our institutions, and is endeared to our race of the benefits received is, to the actions in such case by the rule extent of such excess, a taking of that an ordinance to be valid must private property for public use be reasonable; and also because, without due process of law. under the statute, the property L. & N. R. Co. V. Barber As- owner may have the questions de- phalt Paving Co., 197 U. S. 430, cided whether the tax is in sub- 49 li. ed. 819, 25 Sup. Ct. Eep. stantial excess of the special bene- 466. fits received. 17 German Savings, etc., Society Job y. Alton, 189 111. 256, 82 V. Eamish, 138 Cal. 120, 69 Pac. 89. Am. St. Eep. 448, 59 N. E. 622. 18 This decision went upon the isAnderton v. Milwaukee, 82 ground that the property owner Wis. 279, 15 L. E. A. 830, 52 N. was protected from arbitrary ex- W. 95. 91 § 135 THE lAW OF SPECIAL ASSESSMENTS. by antiquity and the noblest historical associations. N'o words in our language signify more in respect of the rights and privileges of the individual than this phrase, and it em- bodies one of the broadest and most far-reaching guaranties of personal and property rights. At first, the words un- doubtedly related to the procedure for the protection of such rights; but by the time of the Eevolution of 1776, it was regarded as synonymous with the famous phrase, " the law of the land," although " due process of law " is more com- prehensive.*" 135. The phrase has always been one requiring con- struction, and, as the Supreme Court of United States has said, has never been defined, and probably never can be defined, so as to draw a clear and distinct line, applicable to all cases, between proceedings which are by due process of law and those which are not.*^ The general meaning of the two phrases " due process of law " and " the law of the land," as given in the Dartmouth College case,*^ is more often quoted than any other, and defines the term in relation to procedure as well as to substantive rights. " By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon en- quiry, and renders judgment only after trial. The mean- ing is, that every citizen shall hold his life, liberty, property, and immunities under protection of the general rules which govern society. Everything which may pass under the form of an enactment is not, therefore, to be considered the law of the land." ** It is not confined to judicial proceedings 20 Guthrie, Fourteenth Amend- ward, 4 Wheat. 518, 581, 4 L. ed. ment, pp. 66-68. 629, 645. 21 Miller, J., in Freeland v. Wil- ^a " Due process of law in each liams, 131 U. S. 405, 418, 33 L. particular ease means such an ex- ed. 193, 198, 9 Sup. Ct. Rep. 763. ertion of the powers of govern- See, also, Holden v. Hardy, 169 ment as the settled maxima of U. S. 366, 389, 42 L. ed. 780, 790, law permit and sanction, and un- 18 Sup. Ct. Rep. 383. der such safeguards for the pro- 22 Dartmouth College v. Wood- tection of individual rights as 92 POWEES AND EESTEICTIO]SrS. § 135 alone, but extends to all proceedings which may affect the citizen in his rights of liberty or property. " It is manifest that it was not left to the legislative power to enact any proc- ess which might be devised. The article is a restraint on the legislative, as well as on the executive and judicial pow- ers of the government, and cannot be so construed as to leave the Legislature free to make any process " due process of law " by its mere will. It means " such an exertion of the powers of government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one being dealt with belongs." ^* those maxims prescribe for the class of cases to which the one be- ing dealt with belongs." Story on Const., 5th ed.j sec. 1945. 2* Murray v. Hoboken L. & I. Co., 18 How. 272, 15 L. ed. 372; Stuart V. Palmer, 74 N. Y. 183; Weimer v. Bruneberg, 30 Mich. 201; McMillan v. Anderson, 95 U. S. 37, 24 L. ed. 335; Story on Const., 5th ed., see. 1945; David- son V. New Orleans, 96 U. S. 101, 24 L. ed. 618; Ex parte Wall, 107 U. S. 288, 27 L. ed. 562, 2 Sup. Ct. Eep. 569; Hagar v. Rec. Dist., Ill U. S. 708, 28 L. ed. 572, 4 Sup. Ct. Eep. 663; Mo. Pac. K. Co. V. Humes, 115 U. S. 519, 29 L. ed. 465, 6 Sup. Ct. Eep. 110; Freeland V. Williams, 131 U. S. 418, 33 L. ed. 198, 9 Sup. Ct. Eep. 763; Hallinger v. Davis, 146 U. S. 317, 36 L. ed. 989, 13 Sup. Ct. Eep. 105; Holden v. Hardy, 169 U. S. 384, 389, 42 L. ed. 788, 790, 18 Sup. Ct. Rep. 383. "Due process of law is process according to the system of law ob- taining in each state, and not ac- cording to any general law of the United States." Walker v. Sauvinet, 92 U. S. 90, 23 L. ed. 678; Missouri v. Lewis, 101 U. S. 22, 25 L. ed. 989; Hur- tado V. California, 110 U. S. 516, 28 L. ed. 232, 4 Sup. Ct. Eep. Ill, 292. " What would be a fair and just provision in one state might be oppressive and grossly arbi- trary elsewhere. Each state has its peculiar interests and tradi- tions that may call for distinct legislative policies. ... In each case, the primary inquiry must be as to what is the system of law of the particular state, and whether, according to that law, as adjudged by its courts, the pro- cedure in question is " due proc- ess " ; and the secondary inquiry must be whether in that process of law, if followed, there is any violation of the fundamental rights secured by the Federal Con- stitution." Guthrie on the Fourteenth Amendment, citing Kennard v. Louisiana, 92 U. S. 480, 23 L. ed. 478; Caldwell v. Texas, 137 U. S. 692, 34 L. ed. 816, 11 Sup. Ct. Eep. 224; Leeper v. Texas, 139 93 §§ 136, 137 THE LAW OP SPECIAI, ASSESSMENTS. 136. The one essential to due process of law, in the exer- cise of the power of taxation, is that at some stage of the proceedings the parties concerned shall have notice and an opportunity to interpose any defense they may have as to either the validity or amount of the tax.^' If the legislature provides for notice to and hearing of each proprietor, at some stage of the proceeding, upon the question what pro- portion of the tax shall be assessed on his land, there is no taking of his land without due process of law.^® Definition of. 137. It may be defined as " law in its course of adminis- tration through courts of justice," but in its broad sense sig- nifies such an exercise of the powers of government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs;"^ while as embodied in Sec. 3, Art. 1, of the Constitution of Nebraska, it relates primarily to the remedy for wrongs to person and property, rather than to matters of substantive law.^* Where ample provision is U. S. 462, 35 L. ed. 225, 11 Sup. of Portland, 149 U. S. 41, 37 L. Ct. Rep. 579; McNulty v. Cali- ed. 641, 13 Sup. Ct. Rep. 754. fornia, 149 U. S. 645, 37 L. ed. 27 Wulzen v. Supervisors, 101 882, 13 Sup. Ct. Rep. 959. Cal. 15, 40 Am. St. Rep. 17, 35 26Duluth V. Dibblel, 62 Minn. Pac. 353. 18, 63 N. W. 1117; Higman v. 28 irrigation District v. Collins, Sioux City (Iowa), 105 N. W. 46 Neb. 411, 64 N. W. 1086; 524; Owens v. Marion, 127 Iowa, Pearson v. Yewdall, 95 U. S. 294, 469, 103 N. W. 381; Roberts v. 24 L. ed. 436. Evanston, 218 111. 296, 75 N. E. " It is sufficient to observe here, 923 ; Citizens Sav. Bk. & Tr. Co. that by ' due process ' is meant V. Chicago, 215 111. 174, 74 N. E. one which, following the forms of 115. But not notice of each step. law, is appropriate to the case, and Ross V. Wright Co. Supervisors just to the parties to be affected. (Iowa), 104 N. W. 506. It must be pursued in the ordinary 2S Ulman v. Mayor, etc., 72 Md. mode prescribed by the law ; it 593, 11 L. R. A. 224, 20 Atl. 141, must be" adapted to the end to be 21 Atl. 709; Spencer v. Merchant, attained; and wherever it is neces- 125 U. S. 345, 31 L. ed. 763, 8 sary for the protection of the par- Sup. Ct. Rep. 921 ; Paulsen v. City ties, it must give them an oppor- 94 POWEES AND EESTKIOTIONS. § 138 made for an inquiry as to damages before a competent court and for a review of the proceedings of the court of original jurisdiction, upon appeal to the highest court of the state, this complies with the meaning of the term as used in the Federal Constitution.** It is a rule founded on the first principles of natural justice older than written constitutions, that a citizen shall not be deprived of his life, liberty or prop- erty without an opportunity to be heard in defense of his rights, and the constitutional provision that no person shall be deprived of these " without due process of law " has its foundation in this rule. This provision is the most impor- tant guaranty of personal rights to be found in the Federal or State Constitution. It is a limitation upon- arbitrary power, and is a guaranty against oppression and confiscation. Arbitrary legislation. 138. The legislature of a state, unless hampered by some constitutional provision, may create a tribunal in a city or town, such as the council, to make an assessment, and such tunity to be heard respecting the objectionable as denying due proc- justice of the judgment sought, ess of law or the equal protection The clause in question means, of the laws, because nonresident therefore, that there can be no owners are not afforded such priv- proceeding against life, liberty or ilege, there being no discrimina- property, which may result in dep- tion in the amount of the tax rivation of either, without the ob- among the property owners, servance of those general rules es- Field v. Barber Asphalt Paving tablished in our system of juris- Co., 194 U. S. 618, 48 L. ed. 1142, prudence for the security of pri- 24 Sup. Ct. Eep. 784. vate rights." Field, J., in Hagar 29 " No ease it is believed can be V. Reclamation District, 111 U. S. found in which it was decided that 701, 28 L. ed. 569, 4 Sup. Ct. Rep. this constitutional guaranty did 663. Followed and approved in not extend to cases of assessments, Turpin v. Lemon, 187 U. S. 51, and yet we may infer from certain 47 L. ed. 70, 23 Sup. Ct. Eep. 20. dicta of judges that their atten- Dve process. tion was not called to it, or that A statute that no street im- they lost sight of it in the cases provement shall be made where a which they were considering. It majority of the resident property has sometimes been intimated that owners liable to assessment file a a citizen is not deprived of his protest against the same, is not property within the meaning of 95 § 138 THE LAW OF SPECIAL, ASSESSMENTS. assessment will not be void even if every member of the board were a taxpayer in the district, nor is due process of law denied a property owner because two members of such board are abutting owners.^" It requires compensation to be made or secured to the owner when private property is taken by a state, or under its authority, for public use,^^ for the arbitrary appropriation of private property without notice, and without an opportunity for a hearing, cannot be de- fended upon any principle of natural justice, and ought not to be tolerated and upheld by the courts.^^ It is provided for by an act creating a levee district, requiring the assess- ors to meet at a date fixed and make their assessment, and at another time and place to again meet and equalize their as- sessment, and providing for the collection of unpaid assess- ments by foreclosure proceedings;^* and it is within the power of the legislature to create special taxing districts, and to charge the cost of a local improvement in whole or in part, upon the property in said district, either according to valuation, frontage or area. Due process of law is ob- this constitutional provision by Dist., 59 Ark. 513, 27 S. W. 590. the imposition of an assessment. And see, generally, for a list of It might as well be said that he is authorities defining the subject, not deprived of his property by a Stuart v. Palmer, 74 N. Y. 183, judgment entered against him." 30 Am. Rep. 289; and for cases Earl, J., in Stuart v. Palmer, as to what is, Meggett v. Eau 74 N. Y. 183, 30 Am. Rep. 289. Claire, 81 Wis. 326, 51 N. W. 566; 30 Hibben v. Smith, 191 U. S. State v. Oshkosh, 84 Wis. 548, 54 310, 48 L. ed. 195, 24 Sup. Ct. N. W. 1095; Reclamation Dist. v. Rep. 88. Hagar, 6 Sawy. 567, 4 Fed. 366; SI Norwood v. Baker, 172 U. S. Fallbrook Ir. Dist. v. Bradley, 164 269, 278, 43 L. cd. 443, 447, 19 U. S. 112, 41 L. ed. 369, 17 Sup. Sup. Ct. Rep. 187; C. B. & Q. R. Ct. Rep. 56; Brown v. Denver, 7 R. Co. V. Chicago, 166 U. S. 226, Colo. 305, 3 Pac. 455; King v. 241, 41 L. ed. 979, 986, 17 Sup. Portland, 184 U. S. 61, 46 L. ed. Ct. Rep. 581; Long Island W. S. 431, 22 Sup. Ct. Rep. 290; S. F. Co. V. Brooklyn, 166 U. S. 685, & W. R. Co. v. Savannah, 96 Ga. 695, 41 L. ed. 1165, 1168, 17 Sup. 680, 23 S. E. 847; Indianapolis v. Ct. Rep. 718. Holt, 155 Ind. 222, 57 N. E. 966, 32 Gateh V. Des Moines, 63 Iowa, 988, 1100; Leeds v. Defrees, 157 724, 18 N. W. 310. Ind. 392, 61 N. E. 930. 33 Carson v. St. Francis Levee 96 POWEES AND EESTEICTIONS. §§ 139, 140 served by a statute requiring notice to be given to owners of land to be talcen for a street improvement, which provides for no notice to land owners whose property is liable to be as- sessed, their interest being too remote.*** It is afforded to the taxpayer in the apportionment of special assessments, if he be afforded an opportunity to be heard before the body making the assessment ; and the state legislature may provide that such hearing shall be final, so far as the Eederal Con- stitution is concerned.^*'' Interest on deferred payments. 139. Under a statute authorizing the issue of bonds for paying deferred installments of special assessment payments, the fixing of interest thereon at five per cent is not depriv- ing the owner of his property without due process of law.**" Sue process not necessarily juicial process, 140. But due process of law is not necessarily judicial process, nor is the right of appeal essential thereto. There is no provision of the Federal Constitution forbidding the state from granting to a tribunal, whether called a court or board of registration, the final determination of a legal ques- tion."* 3ia Goodrich v. Detroit, 184 U. that due process of law must be S. 432, 46 L. ed. 627, 22 Sup. Ct. judicial process. Much of the Rep. 397. process by means of which the 3*l>Hibben v. Smith, 191 U. S. government is carried on and the 310, 48 L. ed. 195, 24 Sup. Ct. order of society maintained is Rep. 88. purely executive or administrative. s^oHulbert v. People, 213 111. Temporary deprivations of liberty 452, 72 N. B. 1097. or property must often take place 34d Murray's Lessee v. Hoboken through the action of ministerial Co., 18 How. 272, 15 L. ed. 372; or executive officers or function- Bushnell v. Leland, 164 U. S. 684, aries, or even of private parties, 41 L. ed. 598, 17 Sup. Ct. Rep. where it has never been supposed 209 ; Public Clearing House v. that the common law would aflFord Coyne, 194 U. S. 497, 48 L. ed. redress." Cooley, J., in Weimer 1092, 24 Sup. Ct. Rep. 789. v. Bunbury, 30 Mich. 201. " There is nothing in these The only reservation is that the words ('due process of law'), person injured may apply to the however, that necessarily implies courts for redress in ease the ex- 7 97 §§ 141, 142 THE LAW OF SPECIAL ASSI^SMENTS. And a system of delusive exactness should not be ex- tracted from the very general language of the Fourteenth Amendment in order to destroy methods of taxation that were well known before its adoption, and which no one then supposed would be disturbed.^*® Requisites of due process — Notice. 141. The authorities are practically unanimous in the adoption of the general principle that notice to the property owner, and an opportunity to be heard at some stage of the proceedings are necessary steps in a proceeding which seeks to charge property with a special assessment.^*' But in de- termining what notice is sufficient, the courts are in appar- ently hopeless conflict**^ It may be enunciated as a general principle, accepted by all courts, that private property may not be taken for public use without notice, but that the legis- lature may prescribe the mode of giving notice, and such re- quirements, when complied with, are sufficient. ^^ 142. The enforcement of a tax levy is a mode of depriv- ing the citizen of his property; and where the assessment is not specific, such as a poll tax, and imposed upon all alike, ecutive or ministerial officers have due process of law, see Chase v. exceeded their authority, or their Trout, 146 Cal. 350, 80 Pae. 81. action is palpably wrong. 8 Bums v. Mayor, etc., 48 Md. Mich. 393, 57 N. W. 250. 198. This goes very far in the 18 Swinton v. Ashbury, 41 Cal. protection of private rights, and is 525. criticised in the dissenting opinion IT Ligare v. Chicago, 139 111. 46, in Mayor, etc. v. Johns Hopkins 32 Am. St. Kep. 179, 28 N. E. 934. Hospital, 56 Md. 1. 18 Armstrong v. St. Paul, 30 21 Findley v. Hull, 13 Wash. 236, Minn. 299, 15 N. W. 174. 43 Pae. 28. 155 §§ 210, 211 THE LAW OF SPECIAL ASSESSMEH-TS, Apportionment. 210. Although no system of taxation that the brain of man has yet conceived works exact justice and equality, the requirement of uniformity is essential, regardless of what the basis of taxation may be. As an eminent jurist and text-writer has aptly stated, this principle applies to these local assessments as much as to any other species of tax- ation, the difference being only in the character of the uni- formity and the basis on which it is established, and that to render the taxation uniform in any case, two things are essential. First, each taxing district should confine itself to the objects of taxation within its limits, that duplicate taxation and inequality may be avoided. Second, all the objects of taxation within the taxing district should be em- braced to the end that there be uniformity in the manner of the assessment and approximate equality in the amount of the exactions throughout the district.^* 211. In one of the earlier eases the court said " This unlimited power to tax necessarily involves the right to designate the property upon which it is to be levied — in other words, to apportion the tax. And except in cases where the proceeding is merely colorable, and it is really and substantially an exercise of the right of eminent domain, the judicial tribunals cannot inter- fere with the legislative discretion, however onerous it may be." ^* That this statement of the law is extreme in some re- spects will be shown by later and better reasoned decisions, but it affords a convenient starting point. When the tax- ing power was first resorted to for justification of special as- sessments, the courts were not so careful to fix the limita- tions of the applications of that power to this special use, and with continual and repeated applications of the principle 22 Cooley, Const. Lira., 615. As 23 Seoville v. Cleveland, 1 Ohio to general rule for apportionment, St. 126. see Baeon v. Savannah, 91 Ga. 500, 17 S. E. 749. 156 LIMITATIONS ON THE POWEE. § 212 to the new states of fact presented by the cases as they arose, the necessity of restraining the taxing power within well recognized limits was recognized. If the taxing power were indeed unlimited, then the simplest method of ap- plying it to street improvements would be to compel each owner to pay the expense in front of his property, especially as it was almost universally held that the constitutional re- strictions as to uniformity and equality did not apply to this special system. But it was very promptly held that this was in effect an arbitrary exaction, and repugnant to constitutional principles,** although there are cases that hold a contrary doctrine.*" a. In general. 212. Although the power of taxation, which necessarily includes the apportionment of the assessment, is of neces- sity a purely legislative function,*® and any attempt to exer- 2* Woodbridge v. Detroit, 8 Mich. 274; State v. Portage, 12 Wis. 563. " I admit that the power to tax is unbounded by any express limit in the Constitution — that it may be exercised to the full extent of the public exigency. I concede that it differs from the power of emi- nent domain, and has no thought of compensation by way of a re- turn for that which it takes and applies to the public good, further than all derive benefit from the purpose to which it is applied. But nevertheless taxation is bounded in its exercise by its own nature, essential characteristics and purpose. It must therefore visit all alike in a reasonably practicable way of which the leg- islature may judge, but within the just limits of what is taxation. Like the rain, it may fall upon the people in districts and by turns, but still it must be public in its purpose, and reasonably just and equal in its distribution, and can- not sacrifice individual right by a palpably unjust exaction. To do so is confiscation, not taxation, ex- tortion not assessment, and falls within the clearly implied restric- tion, not a, fair assessment." Ag- new, J., in re Washington Avenue, 69 Pa. St. 363, 8 Am. Rep. 255. 25 It has been held to be the set- tled law in New York that the power of taxation and of appor- tionment of taxation are vested in the legislature, and are identical and inseparable; that there is no constitutional restraint upon the exercise of that power; and that it includes the right and power of determining what portion of a pub- lic burden shall be borne by any individual or class of individuals. Litchfield v. Vernon, 41 N. Y. 123; People v. Lawrence, 41 N. Y. 137. 28 The power of apportionment, with the power of taxation, is ex- 157 § 212 THE LAW OF SPECIAL ASSESSMENTS. cise the taxing power without it renders the proceedings ab- solutely void,^'' yet we shall show later in this chapter that only property benefited is subject to the assessment.. With this limitation always in view, when the legislature has exercised its right, and made the apportionment, the courts will not assume to declare it void, except for fraud, or manifest abuse, so that the invasion of a private right is flagrant and its demonstration clear, ^^ although where the assessing board has adopted the wrong rule of apportion- ment, the tax-payer is not concluded thereby, but may re- sort to the courts.^® In such a case, the board acts outside clusively in the legislature, the constitution containing no inhibi- tion to a tax for a local improve- ment, and prescribing no rule of apportionment. Burnett v. Sacrar mento, 12 Cal. 76, 73 Am. Dec. 518. Taxation, whether special or gen- eral must be uniform, and must be distributed among those who are to pay it by a just ratio of appor- tionment. Independence v. Gates, 110 Mo. 374, 19 S. W. 728. The power of taxation and of appor- tioning taxation, or of assigning to each individual his share of the burden, is vested exclusively in the legislature, unless this power is limited or restrained by some con- stitutional provision. The power of taxing and the power of appor- tioning taxation are identical and inseparable. Taxes cannot be laid without apportionment; and the power of apportionment is there- fore unlimited, unless it be re- strained as a part of the power of taxation. People v. Mayor, etc., of Brooklyn, 4 N. Y. 419, 55 Am. Dec. 266. A tax or assessment upon property arbitrarily im- posed, without reference to some just system of apportionment. could not be upheld. Stuart v. Palmer, 74 N. Y. 183, 30 Am. Rep. 289. The mode of apportion- ing the tax and the extent of territory that may be embraced within it are necessarily matters of legislative discretion. State v. Fuller, 34 N. J. L. 227. 27 The apportionment of the bur- den is a necessary element in all taxation, and any attempt to exer- cise the power without it, is abso- lutely void. Motz V. Detroit, 18 Mieh. 495. 28 Allen V. Drew, 44 Vt. 174; Davis V. Saginaw, 87 Mich. 439, 49 N. W. 667; Shimmons v. Sag- inaw, 104 Mich. 511, 62 N. W. 725; Grand Rapids S. F. Co. v. Grand Rapids, 92 Mich. 564, 52 N. W. 1028; Keith v. Bingham, 100 Mo. 300, 13 S. W. 683. " The legisla- ture is not competent to ascertain and adjudicate upon facts in in- dividual eases, so as to bind pri- vate rights. This is not one of the functions of legislative power." Christiancy, J., in Woodbridge v. Detroit, 8 Mich. 274, citing Parm- lee V. Thompson, 7 Hill, 80. 29 People V. County Court, 55 N. Y. 604. 158 LIMITATIONS ON THE POWER. 213 of its jurisdiction.*" One court, which has gone to the ex- treme in sustaining the omnipotence of the legislature in all taxation matters, has stated that the security against the abuse of the power of apportionment rests in the wisdom and justice of the members of the legislature, and their re- sponsibility to their constituents.*^ But experience has shown that this is a broken reed upon which to lean, because of the overwhelming influence of the corporate authorities in matters of this kind. b. Taxings districts. 213. Fixing the taxing district, or, in other words, de- fining the territory within which the special assessment shall be made, is exclusively a legislative prerogative, although not an arbitrary or unrestricted one.*^ The legislative body may itself by enactment fix the district, or, as is more com- »o Friedrieh v. Milwaukee, 118 Wis. 254, 95 N. W. 126. 31 Burnett v. Sacramento, 12 Cal. 76, 73 Am. Dee. 518. 32 Local assessment districts are not within the unrestricted discre- tion of the legislature, and the power to make them is not an ar- bitrary one; but among the limi- tations, arising from its nature and that of the taxing power, which the courts will enforce, is the one that the assessment cannot be im- posed upon an individual, but must be apportioned among a sub- district of several. Macon v. Patty, 57 Miss. 378, 34 Am. Rep. 451. The legislature may limit the area of assessment for a pub- lic improvement; it need not in- clude the whole territory bene- fited by the improvement; pro- vided that the assessment upon such lands as are within the pre- scribed limits is restricted to the amount of benefit received by them. State v. Road Commrs., 41 N. J. L. 83. "The courts are generally agreed that the author- ity to require the property specially benefited to bear the expense of local improvements is a branch of the taxing power, or included within it. * * * Whether the expense of making such improvements shall be paid out of the general treasury, or be assessed upon the abut- ting property or other property specially benefited, and, if the lat- ter mode, whether the assessment shall be upon all property found to be benefited, or alone upon the abutters, according to frontage or according to the area of their lots, is, according to the present weight of authority, considered to be a question of legislative expediency." Dillon, Mun. Corp. (4th Ed.) Sec. 752. The major part of the cost of a local work is sometimes collected 159 § 214 THE LAW OF SPECIAL ASSESSMENTS. mon, delegate it to municipal bodies under charter provi- sions or general acts. It is axiomatic that the legislature may authorize the whole expense of a local improvement to be paid by general taxation, or by special assessment on the property benefited, or by a portion to each, so that the legislative discretion as to how large the district may be can seldom be questioned. How small it may be has never been determined. 214. That the district wherein a special assessment is to be laid, should be fixed in advance, is according to or- derly procedure and the regular course of taxation,** al- though it has been held not to be essential.** But the legislature can not clothe the corporate authorities with power to assess and collect taxes from only a part of the municipality, for a corporate purpose. Such purpose must extend to the entire city, and in the apportionment of the tax to effectuate the purpose, the principle of equality and uniformity must be observed.*' by general tax, while a smaller sonable to expect that, with such portion is levied upon the estates latitude of choice, the tax will be specially benefited. more just and equal than it would The major part is sometimes as- be were the legislature required sessed on estates benefited, while to levy it by one inflexible andar- the general public is taxed a bitrary rule." Cooley, Taxation smaller portion in consideration of (3d Ed.) 1203. a smaller participation in the bene- 3s Powers Appeal, 29 Mich. 504. fits. 3* People V. Mayor, etc., of The whole cost in other cases is Brooklyn, 4 N. Y. 419, 55 Am. Dec. levied on lands in the immediate 266. vicinity of the work. ss Under a charter authorizing In a constitutional point of view the council " to create special im- either of these methods is admissi- provement districts within the city, ble, and one may be sometimes and to change the boundaries of just, and another at other times. said districts from time to time," In other cases it may be deemed the broad power is conferred of reasonable to make the whole cost creating special improvement dis- a general charge, and levy no spe- tricts, commensurate with the im- cial assessment whatever. The provement which was required to question is legislative, and, like all be made therein; and under such legislative questions, may be de- power, the whole city may be in- cided erroneously; but it is rea- eluded in one district, if necessary 160 LIMITATIONS OK THE POWER. §§ 215, 216 The taxing district may embrace an entire city.^®* or it may be confined to contiguous or abutting property, or property fronting the improvement,** or composed of only part of the property in the municipality,*^ and under a general act authorizing an assessment upon any property which the city council believe will be benefited by the pro- posed improvement, the charter provision restricting such district to lands fronting the improvement, is in effect re- pealed.*® 215. A political corporation may be created within the limits of another already created, and authority con- ferred upon commissioners to impose taxes for local im- prevements therein,*' while provisions can be made for cre- ation of a public park which lies within the limits of several towns, *•* or the creation of a taxing district in two counties.** 216. The legislature has undoubted authority to ap- portion a public burden among all the taxpayers of the state, or among those of a particular section if, in its judgment, for an improvement which affected *" The legislature may provide the whole. M. & M. Land Co. for the creation of a public park V. Billings, 50 0. C. A. 70, 111 by several towns; and when those Fed. 972. towns have voted to accept the pro- 35a Primm v. Belleville, 59 111. visions of the statute, the board of 142. park commissioners created thereby 36 A taxing district is essential may be vested by the legislature to a valid local assessment, but it with the power to assess and col- may be defined by statute gener- lect taxes within the park district ally, and confined to contiguous or so created, for the special corpor- abutting property. Raymond v. ate purpose of its creation. Peo- Cleveland, 42 Ohio St. 522. Or on pie v. Salomon, 51 111. 37. property fronting the improvement. *i Where a special act of the leg- State V. District Court, 61 Minn, islature creates a taxing district 542, 64 N. W. 190; State v. Nor- in two counties, the rate of assess- ton, 63 Minn. 497, 65 N. W. 935. ment must be uniform throughout 37 Adams v. Shelbyville, 154 Ind. the district, notwithstanding the 407, 49 L. E. A. 797, 77 Am. St. expense in one county was greater Eep. 484, 57 N. E 114. than the other, it being immaterial 38 Goodrich v. Detroit, 123 Mich, that parts of two counties are 559, 82 N. W. 255. united in creating the district. 39 State V. Hackensack, etc.. Commissioners v. Commissioners, Commissioners, 45 N. J. L. 113. 92 N. C. 180. li 161 § 217 THE LAW OF SPECIAI, ASSESSMENTS. those of a special section may reap the principal benefit from the proposed expenditure,*^ and it may vest in a council, or other inferior board, the right to fix the districts, amount of tax, and method of raising it, and to declare that all the prop- erty within such district is benefited, and their action is conclusive, except for fraud or mistake.*^ 217. Under the present constitution of Illinois , the effect of an ordinance providing for the payment of the cost of a local improvement by special taxation, is to create a taxing district composed of the prop- erty contiguous to the improvement, but .a public street or alley is not deemed " contiguous property," and is not, therefore, assessable.** A constitutional provision per- mitting the legislature to authorize " Assessments on real property for local improvements in towns and cities, under such regulations as may be prescribed by law, to be based upon the consent of a majority in value of the property- holders owning property adjoining the locality to be affected . . ." , applies to any property adjoining or near the im- provement, which is physically affected, or the value of which is commercially affected directly by the improvement to a degree in excess of the effect upon the property in the city generally.*^ And under an act of congress requiring a board of public works to assess a proportion of the cost of street improvements " upon the property adjoining and to be specially benefited by the improvement," these words designate the property to be charged, and not the condition. The duty of the board is to estimate the cost, and distribute the same among the owners according to frontage, and they *2Cook V. Portland, 20 Or. 580, 46 N. E. 124; Burlington v. Quick, 13 L. E. A. 533, 27 Pac. 263; 47 Iowa, 222. Swinton v. Ashbury, 41 Cal. 525. **Liglitner v. Peoria, 150 111. 43 Rogers v. St. Paul, 22 Minn. 80, 37 N. E. 69; C. & N. W. R. 494; Little Rock v. Katzcnstein, Co. v. Elmhurst, 165 111. 148, 46 52 Ark. 107, 12 S. W. 198; Com- N. E. 437. missioners v. Herrell, 147 Ind. 500, *5 Little Rock v. Katzenstein, 52 Ark. 107, 12 S. W. 198. 162 UMITATIOWS ON THE POWER. §§ 218-220 •were not charged with the duty of ascertaining if there be in fact any benefits.*® 218. But the legislature, in fixing the amount of the tax and the area of assessment, is determining a public ques- tion, upon considerations of public interest and welfare, and it cannot provide for an apportionment of the tax among the persons affected without providing for a notice and a hear- ing on the amounts individually assessed.*^ This has been shown in the previous chapter.** c. Apportionment by front foot. 219. Whether or not a special assessment for a local im- provement may be made upon what is familiarly known as the " front foot " rule, is a matter upon which the courts are divided, with the numerical superiority very strongly in the affirmative. So far as assessments for constructing lat- eral sewers and laying water pipes are concerned, the method is probably as fair and accurate a one as can be arrived at, the property being presumptively enhanced in value by the cost of the work. As a matter of fact it would in most cases be impossible to disprove the benefits, although in exceptional cases, where benefits have been absolutely dis- proved, the courts have set aside the assessments. 220. How far the presumption of benefit to property by reason of a local improvement, can be carried, has not been definitely determined, but it would seem as if it were logically limited by the actual facts of each case. In other *8 United States ex rel. Hender- traordinary burdens, an opportu- Bon V. Edmunds, 3 Mackey, 142. nity to be heard upon all ques- 47 In re Trustees Union College, tions of fact, as well as of law, 129 N. Y. 308, 29 N. E. 460. on which their liability rests, and " This requirement of the law at a time and before the tribunal which arises independent of any most favorable for the fair and legislative provision for a notice unbiased determinations of all and opportunity to be heard, is such questions. State v. Boad designed in the interest of jus- Comm'rs, 41 N. J. L. 83. tice to afford to individuals who *» Supra, ch. II., etc. are called upon to bear these ex- 163 §§ 221, 222 THE L^W OF SPECIAL ASSESSMENTS. words, the legal presumption is, in the absence of a con- trary showing, that the property assessed is benefited to the amount of the assessment. But if the facts are that the property is either deteriorated in value, or at least not en- hanced in value to any extent ; or if the physical situation is such that it is manifest that the property could not be ben- efited by the improvement, the presumption is overcipme, and the courts should undoubtedly, on a proper showing of such facts, set aside such an assessment. The author is abso- lutely convinced that actual benefits to property are the sole foundation for the right to lay a special assessment, and that under the protection of the Fourteenth Amendment, no assessment can stand which is in substantial excess of the actual enhancement in value of the property on which it is laid. It is to the extent of such excess, as so aptly stated by Justice Harlan, in Norwood v. Baker, a taking of private property for public use without due process of law. 221. In cases of grading and paving streets, where the expenses in front of the various lots are substantially the same, and there is no great difference in the value of the different properties or in the actual benefits received, the apportionment of the expense, not exceeding the benefits de- rived, upon the ratio that the number of feet front that each lot has as compared with the total frontage embraced in the improvement, is perhaps as fair and accurate a mode of apportionment as can be devised. Apportioning the cost by the frontage on the improvement is adopted by the legis- lature as constituting, in the judgment of its members, an apportionment in proportion to benefits as nearly as is rea- sonably practicable, and, as we understand it, is substantially the view taken by the authorities.*® 222. In Pennsylvania, the front foot basis of apportion- ment has been sustained in many cases, but not without an occasional protest from the Supreme Court of that State. *9Cooley on Taxation (3d ed.), Dague, 130 Cal. 207, 62 Pac. 500. 1221, and cases cited; Hadley v. 164 LIMITATIONS ON THE POWER. § 223 In one case, Chief Justice Agnew said, " More than once lately we have had occasion to reprehend that legislation which seeks to cast the burdens of the public on the shoulders of individuals, often bringing ruin on men of moderate means. Such legislation is too often the fruit of designing schemers to promote their selfish ends. We may therefore say that while the frontage rule is conceded to be a legal mode of assessments, when properly applied, it is not to be used as an arbitrary mode of casting the public burthens upon the property of individuals." ^^ But although valid where the properties do not differ materially in value, the front foot rule is unconstitutional where the street or im- provement is made through rural or suburban districts.'^ In Illinois, under the present constitution, the system of special taxation of contiguous property in proportion to frontage is held valid.^* 223. The extremity to which courts have gone in dis- cussing this question is remarkable. One court of good re- pute holds that an arbitrary rule by which the expense of a sewer is apportioned among the adjoining owners, accord- ing to the number of front feet of their lots, without refer- ence to other considerations, is unreasonable and cannot be sanctioned ; ^^ while another court holds that the legislature may distribute the cost of a local improvement upon the property located on the street where the improvement is made, according to frontage, or a stated sum per lineal foot, and that the property owner is not entitled to a hearing at any time upon the justice or propriety of the principle upon which the assessment is apportioned."* The latter case is BO Seely v. Pittsburgh, 82 Pa. v. Penn. Coal Co., 105 Pa. St. 445. St. 365, 22 Am. Rep. 760. b2 c. & N. W. R. Co. v. Elm- si Seely V. Pittsburgh, 82 Pa. hurst, 165 111. 148, 46 N. E. 437. St. 360, 22 Am. Rep. 760; Craig os ciapp v. Hartford, 35 Conn. V. Philadelphia, 89 Pa. St. 265; 66. Washington Avenue, 69 Pa. St. 04 People v. Pitt, 169 N. Y. 521, 352, 8 Am. Rep. 255; Philadelphia 58 L. R. A. 372, 62 N. E. 662. V. Rule, 93 Pa. St. 15; Scranton 165 § 224 THE I^W OF SPECIAL ASSESSMENTS. SO extreme, and so opposed to well recognized principles of practically universal acceptance, that it is impossible to rec- oncile it with the current of judicial opinion. The court which pronounced it has strongly upheld the principle of benefits, and the necessity of notice, in several cases, but has gone to the extreme in recognizing the power of the leg- islature in taxing matters. From this decision to one mak- ing the cost of an improvement in front of each lot payable by the owner thereof, if so provided by legislative enact- ment is but a step. It seems clearly in violation of the Four- teenth Amendment to the Federal Constitution. Without benefits, there is no ground for a tax, and the fact as to whether or not there are benefits is one of fact, and the leg- islature cannot confer benefits by a simple enactment that certain property is in fact benefited. There must first be an inquiry into the fact, or an assessment, which is quasi judicial in nature, before a tax or imposition may be laid on the property."® 224. But where the legislature has made actual benefits the legal basis for an assessment, it is necessary that the re- turn of the commissioners should show that they acted upon this principle ; and a return showing an assessment by front- age does not afiirmatively establish the fact of an assessment in accordance with the statute."* 00 " That tHe benefits a property otherwise the charge is an exac- owner receives from an improve- tion, not a fair assessment." Ag- ment can be ascertained only by new, C. J., in Seely v. Pittsburgh, a reasonable mode of assessment 82 Pa. St. 365, 22 Am. Rep. 760. is plain. And, that to measure the In this case the court review the fronts of all the abutting prop- cases on the method of assess- erties and divide the cost by an ing by benefits and front foot rule, equal charge per front foot upon and say the latter is but a substi- eaeh, is not an assessment of ad- tute for actual assessment, vantages, but simply an arbitrary oe Lieberman v. Milwaukee, 89 mode of charging, is equally plain. Wis. 336, 61 N. W. 1112; Hayes Therefore, to be just and equally v. Douglass Co., 92 Wis. 429, 31 fair to each, it is evident all the L. R. A. 213, 53 Am. St. Rep. 926, owners must stand in like, or in 65 N. W. 482; Hennessy v. Doug- reasonably equal, circumstances; las Co., 99 Wis. 129, 74 N. W. 166 LIMITATIONS ON THE POWEB. § 225 225. In those states which sustain the method of assess- ment by frontage, the principle of benefits as the limitation on the amount is generally recognized, and the apportion- ment by frontage considered as legislative authority for de- termining the benefits in that ratio. It must be admitted that the overwhelming volume of authority is in favor of sustaining this method of apportionment.'^ In some of the 893; Kersten v. Milwaukee, 106 Wis. 200, 48 L. R. A. 851, 81 N. W. 948, 1103; Friedrich v. Mil- waukee, 114 Wis. 304, 90 N. W. 174; S. C, 118 Wis. 254, 95 N. W. 126; Warren v. Grand Haven, 30 Mich. 24; State v. Hudson, 27 N. J. L. 214; S. C, 28 N. J. L. 104; State v. Bergen, 29 N. J. L. 266; Elma v. Carney, 9 Wash. 466, 37 Pac. 707 ; O'Reilly v. Kingston, 114 N. Y. 439, 21 N. E. 1004. If the statute conferring the power to make such assessments limits its exercise to the benefits, by the improvements, to the prop- erty assessed, or is not broad enough to confer on the municipal- ity the power to select the mode of assessment, then an assessment by frontage is an unwarranted as- sumption of benefits, and does not meet the requirements of the stat- ute, but is in conflict therewith. Violett V. Alexandria, 92 Va. 561, 31 L. R. A. 382, 53 Am. St. Rep. 825, 23 S. E. 909. Alaiama. s^ City Council v. Birdsong, 126 Ala. 632, 28 So. 522. California. Emery v. San Francisco Gas Co., 28 Cal. 345; Walsh v. Mat- thews, 29 Cal. 123; Chambers v. Satterlee, 40 Cal. 497; People v. Lynch, 51 Cal. 15, 21 Am. Rep. 677; Whiting v. Quackenbush, 54 Cal. 306; Whiting v. Townsend, 57 Cal. 515; Jennings v. Le Bre- ton, 80 Cal. 8, 21 Pac. 1127; Dig- gins V. Hartshorne, 108 Cal. 154, 41 Pac. 283; Harney v. Benson, 113 Cal. 314, 45 Pac. 687; Had- ley V. Dague, 130 Cal. 207, 62 Pac. 500; Banaz v. Smith, 133 Cal. 102, 65 Pac. 309; San Francisco Paving Co. v. Bates, 134 Cal. 39, 66 Pac. 2; German Savings, etc.. Society v. Ramish, 138 Cal. 120, 69 Pac. 89. Colorado. Keese v. Denver, 10 Colo. 115, 15 Pac. 825; Pueblo v. Denver, 12 Colo. 593, 21 Pac. 899; Denver V. Knowles, 17 Colo. 204, 17 L. R. A. 135, 30 Pac. 1041; Denver v. Campbell, 33 Colo. 162, 80 Pac. 142. Delaware. English V. Wilmington, 2 Marv. (Del.) 63, 37 Atl. 158. District of Columbia. Jones V. Dist. of Columbia 3 App. D. C. 26. Georgia. Hayden v. Atlanta, 70 Ga. 817; Bacon v. Savannah, 86 Ga. 301, 12 S. B. 580; Savannah v. Weed, 96 Ga. 670, 23 S. E. 900. Illinois. Green v. People, 130 111. 515, 22 N. E. 602; Springfield v. Green, 120 111. 269, 11 N. E. 261; Wil- bur V. Springfield, 123 111. 395, 167 § 225 THE LAW OF SPECIAL ASSESSMENTS. States, there is held to be but little conflict between the front- age rule, and the rule that the assessment shall be made ac- V. Chadwick, 104 La. 719, 29 So. 295. Marylamd. Howard 14 N. E. 871; Springfield v. Sale, 127 111. 359, 20 N. E. 86; Green V. Springfield, 130 111. 515, 22 N. E. 60; Walker v. Aurora, 140 111. 402, 22 N. E. 741; Davis v. Litch- field, 145 111. 313, 21 L. R. A. 563, 33 N. E. 888; Chicago & N. A. R. Co. V. Joliet, 153 111. 649, 39 N. E. 1077; Payne v. S. Spring- field, 161 III. 285, 44 N. E. 105; Job V. Alton, 189 111. 256, 82 Am. St. Rep. 448, 59 N. E. 622. Indiana. Palmer v. Stumph, 29 Ind. 329; Kirkland v. Board, etc., 142 Ind. 123, 41 N. E. 374; Commisaioners V. Herrell, 147 Ind. 600, 46 N. E. 124; Indianapolis v. Holt, 155 Ind. 222, 57 N. E. 966, 988, 1100; Martin v. Wills, 157 Ind. 153, 60 N. E. 1021. Iowa. Amery v. Keokuk, 72 Iowa 701, 30 N. W. 780; Gilcrest v. Macart- ney, 97 Iowa 138, 66 N. W. 103; Allen V. Davenport, 107 Iowa 90, 77 N. W. 532; Hackworth v. Ot- tumwa, 114 Iowa 467, 87 N. W. 424. Kansas. Barnes v. Atchison, 2 Kan. 455; Parker v. Challis, 9 Kan. 155. Kentuchy. Covington v. Boyle, 6 Bush, 204; Howell v. Bristol, 8 Bush, 493; Covington v. Worthington, 88 Ky. 206, 10 S. W. 790, 11 S. W. 1038; Joyes v. Shadburn, 11 Ky. L. Rep. 892, 13 S. W. 361; Marshall v. Barber A. P. Co., 23 Ky. L. Rep. 1971, 66 S. W. 734. Louisiana. Barber A. P. Co. v. Gogreve, 41 La. Ann. 251, 5 So. 848; Kelly V. Baltimore etc. Church, 18 Md. 451; Baltimore V. Johns Hopkins Hospital, 56 Md. 1; Moale v. Baltimore, 61 Md. 224; Alberger v. Baltimore, 64 Md. 1, 20 Atl. 988; Mayor, etc., V. Stewart, 92 Md. 535, 48 Atl. 165. Massachusetts. Fairbanks v. Fitchburg, 132 Mass. 42. Michigan. Williams v. Detroit, 2 Mich. 560; Motz V. Detroit, 18 Mich. 495; Warren v. Grand Haven, 30 Mich. 24; Sheley v. Detroit, 45 Mich. 431, 8 N. W. 52; Kalama- zoo V. Francoise, 115 Mich. 554, 73 N. W. 801; Cass Farm Co. v. Detroit, 124 Mich. 433, 83 N. W. 108, 181 U. S. 396, 45 L. ed. 914, 21 Sup. Ct. Rep. 644. Minnesota. In re Norton, 61 Minn. 542, 64 N. W. 190; State v. R. P. Lewis Co., 72 Minn. 87, 42 L. R. A. 639, 75 N. W. 108; State v. Dist. Court, 80 Minn. 293, 83 N. W. 183; State v. Lewis Co., 82 Minn. 390, 53 L. R. A. 421, 85 N. W. 207, 86 N. W. 611. Missouri. St. Joseph V. Anthony, 30 Mo, 537; Palmyra v. Morton, 25 Mo. 593; St. Joseph v. O'Donoghue, 31 Mo. 345; Powell v. St. Joseph, 31 Mo. 347; Fowler v. St. Joseph, 37 Mo. 228; St. Louis v. Clemens, 49 Mo. 552; Neenan v. Smith, 50 Mo. 525; Weber v. Schergens, 59 Mo. 390; Farrar v. St. Louis, 80 168 LIMITATIONS ON THE POWEE. 225 cording to benefits. In other words, there is in the majority of cases, no necessary inconsistency between the two methods, it being sufficient if there be a proper distribution of the as- Mo. 394; Rutherford v. Hamil- ton, 97 Mo. 543, 11 S. W. 249; Moberly v. Hogan, 131 Mo. 19, 32 S. W. 1014; Heman v. Allen, 156 Mo. 534, 57 S. W. 559; Kan- sas City y. Bacon, 157 Mo. 450, 57 S. W. 1045; Barber A. P. Co. V. French, 158 Mo. 534, 54 L. R. A. 492, 58 S. W. 934, 181 U. S. 324, 45 L. ed. 879, 21 Sup. Ct. Rep. 625; St. Charles v. Deemar, 174 Mo. 122, 73 S. W. 469; Sedalia v. Coleman, 82 Mo. App. 560. Neiraska. John V. Connell, 64 Neb. 233, 89 N. W. 806. New Jersey. State V. Elizabeth, 30 N. J. L. 365; Jersey City v. Howeth, 30 N. J. L. 521, S. C. 31 N. J. L. 547; Hand v. Elizabeth, 31 N. J. L. 547; State v. Fuller, 34 N. J. L. 227; Pudney v. Passaic, 37 N. J. L. 65; Raymond's Eat. v. Rutherford, 55 N. J. L. 441, 27 Atl. 172; S. C. 56 N. J. L. 340, 29 Atl. 156; State v. Elizabeth, 56 N. J. L. 125, 27 Atl. 801 ; Central, etc., V. BayoBne, 56 N. J. L. 297, 28 Atl. 713; Long Branch Com- mission V. Dobbins, 61 N. J. L. 659, 40 Atl. 599 ; Dooling v. Ocean City, 67 N. J. L. 215, 50 Atl. 621. New York. Stebbins v. Kay, 51 Hun. 589, 4 N. Y. Supp. 566, reversed in S. C. 123 N. Y. 31, 25 N. E. 207; Denise v. Fairport, 11 Misc. 199, 32 N. Y. Supp. 97; O'Reilly v. Kingston, 114 N. Y. 439, 21 N. E. 1004; Conde v. Schnectady, 164 N. Y. 258, 58 N. E. 130; People V. Pitt, 169 N. Y. 521, 58 L. R. A. 372, 62 N. E. 662. North Carolina. Raleigh v. Peace, 110 N. C. 32, 17 L. R. A. 330, 14 S. E. 521; Hilliard v. AshevUle, 118 N. C. 845, 24 S. E. 738. North Dakota. Rolph V. Fargo, 7 N. D. 640, 42 L. R. A. 646, 76 N. W. 242; Roberts v. First Nat. Bank, 8 N. D. 504, 79 N. W. 1049; Webster v. Fargo, 9 N. D. 208, 56 L. R. A. 156, 82 N. W. 732. Ohio. Ernst V. Kuntle, 5 Ohio St. 520; Maloy V. Marietta, 11 Ohio St. 636; Reeves v. Wood Co., 8 Ohio St. 333; Nor. Ind. R. Co. v. Con- nelly, 10 Ohio St. 159; Upington V. Oviatt, 24 Ohio St. 232; Wilder V. Cincinnati, 26 Ohio St. 284; Corry v. Folz, 29 Ohio St. 320; Spangler v. Cleveland, 35 Ohio St. 469; Jaeger v. Burr, 36 Ohio St. 164; Haveland v. Columbus, 50 Ohio St. 471, 34 N. E. 679; Sand- rock V. Columbus, 51 Ohio St. 317, 42 N. E. 255; Cherington v. Columbus, 50 Ohio St. 475, 34 N. E. 680; Findlay v. Frey, 51 Ohio St. 390, 38 N. E. 114; Cincinnati V. Batsche, 52 Ohio St. 324, 27 L. R. A. 536, 40 N. E. 21; Schroeder V. Overman, 61 Ohio St. 1, 47 L. R. A. 156, 76 Am. St. Rep. 354, 55 N. E. 158; Walsh v. Barron, 61 Ohio St. 15, 55 N. E. 164; Walsh V. Sims, 65 Ohio St. 211, 62 N. E. 120; Shoemaker v. Cin- cinnati, 68 Ohio St. 603, 68 N. E. 1. 169 225 THE LAW OF SPECIAL ASSESSMENTS. Oregon. King V. Portland, 2 Ore. 146; Wilson V. Salem, 24 Ore. 504, 34 Pac. 9, 691; King v. Portland, 38 Ore. 402, 55 L. R. A. 812, 63 Pac. 2. Pennsylvamia. Pennock v. Hoover, 5 Rawle, 291; Spring Garden v. Wistar, 18 Pa. St. 195; Schenley v. Alleghe- ny, 25 Pa. St. 128; Philadelphia V. Tryon, 35 Pa. St. 401; Schen- ley V. Commonwealth, 36 Pa. St. 29, 78 Am. Dec. 359; McGonnigle V. Allegheny, 44 Pa. St. 118; Magee v. Commonwealth, 46 Pa. St. 358; Wray v. Pittsburgh, 46 Pa. St. 365; Stroud v. Phila- delphia, 61 Pa. St. 255, Washing- ton Ave. 69 Pa. St. 352, 8 Am. Rep. 255; Wistar v. Philadelphia, 80 Pa. St. 505, 21 Am. Rep. 112; Michener v. Philadelphia, 118 Pa. St. 535, 12 Atl. 174; Keith v. Philadelphia, 126 Pa. St. 575, 17 Atl. 883; Harrisburg v. MeCor- mick, 129 Pa. St. 213, 18 Atl. 126; Chester v. Black, 132 Pa. St. 570, 6 L. R. A. 802, 19 Atl. 276; Beau- mont v. Wilkesbarre, 142 Pa. St. 198, 21 Atl. 888 ; Hand v. Fellows, 148 Pa. St. 456, 23 Atl. 1126; Scranton v. Bush, 160 Pa. St. 499, 28 Atl. 926; McKeesport v. Soles, 165 Pa. St. 628, 30 Atl. 1019; McKeesport v. Busch, 166 Pa. St. 46, 31 Atl. 49; Witman V. Reading, 169 Pa. St. 375, 32 Atl. 576; Scranton v. Koehler, 200 Pa. St. 126, 49 Atl. 792; Harris- burg V. McPherran, 200 Pa. St. 343, 49 Atl. 988. Rhode Island. Cleveland v. Tripp, 13 R. I. 50. South Dakota. Winona & St. P. R. Co. v. Wat- ertown, 1 S. D. 46, 44 N. W. 1072; Tripp v. Yankton, 10 S. D. 516, 74 N. W. 447. Vermont. Allen V. Drew, 44 Vt. 174. Virginia. Norfolk V. Ellis, 26 Gratt. 224; Davis V. Lynchburg, 84 Va. 861, 6 S. E. 230. Washington. Austin V. Seattle, 2 Wash. 667, 27 Pac. 557; New Whatcom v. Bellingham, etc., Co., 16 Wash. 131, 47 Pac. 236; Ryan v. Sum- ner, 17 Wash. 228, 49 Pac. 487. Wisconsin. State V. Portage, 12 Wis. 563; Meggett V. Eau Claire, 81 Wis. 326, 51 N. W. 566; Hennessy v. Douglas Co., 99 Wis. 129, 74 N. W. 983. United States Courts. Parsons v. Dist. of Columbia, 170 U. S. 45, 42 L. ed. 943, 18 Sup. Ct. Rep. 521; Loeb V. Trustees, etc., 179 U. S. 472, 45 L. ed. 280, 21 Sup. Ct. Rep. 174; French v. Barber A. P. Co., 181 U. S. 324, 45 L. ed. 879, 21 Sup. Ct. Rep. 625; Tonawanda v. Lyon, 181 U. S. 389, 45 L. ed. 908, 21 Sup. Ct. Rep. 609; Cass Farm Co. v. Detroit, 181 U. S. 396, 45 L. ed. 914, 21 Sup. Ct. Rep. 644; Detroit v. Parker, 181 U. S. 399, 45 L. ed. 917, 21 Sup. Rep. 624; Webster v. Fargo, 181 U. S. 394, 45 L. ed. 912, 21 Sup. Ct. Rep. 623 ; Schaefer v. Werling, 188 U. S. 516, 47 L. ed. 570, 23 Sup. Ct. Rep. 449. Contra. Alabama. Scruggs V. Huntsville, 45 Ala. 220; Mobile v. Dargan, 45 Ala. 310. Arkansas. Peay v. Little Rock, 32 Ark. 31; 170 UMITATIONS ON THE POWKE. 225 Monticello v. Banks, 48 Ark. 251, 2 S. W. 952. Minnesota. State V. Dist. Court, 29 Minn. 62, 11 N. W. 133. Neio Jersey. State V. Jersey City, 24 N. J. L. 662; Zabriskie v. Jersey City, 24 N. J. L. 108; Woodruff v. Paterson, 36 N. J. L. 159; New Brunswick R. Co. v. Commis- sioners, 38 N. J. L. 190, 20 Am. Rep. 380; Cronin v. Jersey City, 38 N. J. L. 410. Wctshington. Blma V. Carney, 9 Wash. 466, 37 Pac. 707; Elma v. Wood, 9 Wash. 466, 37 Pac. 707. Wisconsin. Hayes v. Douglas Co., 92 Wis. 429, 31 L. R. A. 213, 53 Am. St. Rep. 926, 65 N. W. 482; Kerstens V. Milwaukee, 106 Wis. 200, 48 L. R. A. 851, 81 N. W. 948, 1103; Friedrich v. Milwaukee, 114 Wis. 304, 90 N. W. 174. It rests in the discretion of the legislature to say upon what principle the as- sessment on city lots fronting a street for the improvement there- of shall be apportioned among them. Emery v. San Francisco Gas Co., 28 Cal. 345. An assess- ment for the improvement of a city street is a tax, and must therefore be laid with equality and uniformity; and a system by which it is apportioned accord- ing to the frontage on the im- provement, or by any o^her stand- ard which shall approximate equality and uniformity, does not yet render it void. Whiting v. Quackenbush, 54 Cal. 306. A street improvement act providing for apportioning the expense of the street improvement according to the frontage of the lots along the street is constitutional and valid. It is to be deemed a, leg- islative declaration that the prop- erty within the district improved may receive a benefit from the improvement in proportion to its frontage upon the work; and in the absence of any facts showing that the particular assessment so based is unjust and not accord- ing to benefits, the statute will not be held unconstitutional, and it is the duty of the court to uphold the assessment. Hadley v. Dague, 130 Cal. 207, 62 Pac. 500. Assessments for local improve- ments upon the basis of front- age, where the lots abutting the improvement are of substantially equal depth, is proper, in the absence of a, showing that it is unfair. Denver v. Knowles, 17 Colo. 204, 17 L. R. A. 135, 30 Pac. 1041; Pueblo v. Robinson, 12 Colo. 593, 21 Pae. 899. "For the purpose of making such im- provement, the legislature may levy a tax upon all or part of the property in such district, by a uniform rule according to its value, or may charge the cost thereof to the property in such district according to what is known as the ' front foot ' rule, thus determining in advance what property is benefited; or may di- rect to a subordinate agency the power to ascertain and report the benefit, if any, to the different tracts of real estate within said district. In other words, the leg- islature may declare that all or a portion of the property within such district is benefited, either according to its value, or in pro- portion to its actual benefit to be lYl § 225 THE LAW OF SPECIAL ASSESSMEliTTS. determined by the legislature it- self, or by persons selected for that purpose. Commissioners v. Herrell, 147 Ind. 500, 46 N. B. 124. The Indiana local assessment act of 1889 known as the Barrett law and the amendments thereto, providing for the apportionment of the costs of a street improve- ment upon the abutting lots ac- cording to their frontage, are not in conflict with any provision of the State or Federal Constitution. Martin v. Wills, 157 Ind. 153, 60 N. E. 1021. The apportionment of the cost of a street pavement on the abutt- ing lots according to frontage, un- der sec. 118, Iowa Code of 1897, providing that the cost of any street improvement shall be as- sessed as a special tax against the property abutting thereon in pro- portion to the number of lineal front feet of each parcel so abut- ting, is not unconstitutional, as taking property without due pro- cess of law. Hackworth v. Ottumwa, 114 Iowa, 467, 87 N. W. 424; Minn. & St. L. R. Co. V. Lindquist, 119 Iowa, 144, 93 N. W. 103. As the Iowa statute authorizes special assessments according to the front-foot rule, assessments not so levied are invalid, and a subsequent owner of the property covered by such assessments may contest the lien thereof. Fitzgerald v. Sioux City, 125 Iowa, 396, 101 N. W. 268. A charter provision authorizing the cost of grading, paving, etc., of the street intersections, upon each block in such proportions as the council deem just and equita- 112 ble, is constitutional. Motz v. Detroit, 18 Mich. 495. Where the charter requires the board, in making assessments for street improvements, to report the whole amount of lands benefited, and the amount that each lot as- sessed is benefited, but report only the whole cost, and the items making up the amount, an assess- ment of such amount on the sev- eral lots in proportion to their frontage on the street, is insuf- ficient. State V. Hudson, 27 N. J. L. 214; State v. Hudson, 29 N. J. L. 104. The expense of paving a whole street, intersected by other streets, may be appor- tioned upon each block respec- tively, though the entire front upon the street belongs to the same owners. Schenley v. Com- monwealth, 36 Pa. St. 29, 78 Am. Dec. 259. An act providing for the assessment of water rents ac- cording to frontage of lots abut- ting on the course of the aque- duct is not unconstitutional. Allen v. Drew, 44 Vt. 174. This was replevin for a bale of buffalo robes. The question of personal liability was not raised. The power to impose part of the expense of street paving on front foot rule, upheld in Norfolk v. Ellis, 26 Gratt. 224; Sands v. Richmond, 31 Gratt. 571, 31 Am. Rep. 742; Davis v. Lynchburg, 84 Va. 861, 6 S. E. 230. But denied in Violett v. Alexandria, 92 Va. 561, 31 L. R. A. 382, 53 Am. St. Rep. 825, 23 S. E. 909, unless the charter expressly authorizes that method. Under a city charter specifying the various steps necessary to be taken to make a special assess- LIMITATIONS ON THE POWEE. §§ 226, 227 sessment, and the return of the commissioners show that the question of benefits was considered. ®® 226. When the frontage method is adopted as the basis of an assessment, it is the general rule that difference in the depth of the various lots, and whether they lay at an obtuse or acute angle with the intersecting street, or whether they front on two streets, does not affect the validity of the assess- ment, or call for a variation in the front foot rate.^® It is difiScult to conceive any other logical method under the ap- plication of this rule, although some courts have modified it.«» d. Assessment according to cost of work in front of each lot. 227. It has occasionally been attempted to levy the actual expense of the cost of the improvement in front of each lot, or a certain fixed proportion thereof, upon each lot, regard- less of any inquiry as to benefits or proportion, or without any attempt to fix a taxing district. As Judge Cooley has accurately stated the plan, " If such a regulation constitutes the apportionment of a tax, it must be supported when properly ordered by or under the authority of the legislature. But it has been denied, on what seem the most conclusive ment for street paving, and Hennessy v. Douglas Co., 99 Wis. among others, that both the pre- 129, 74 N. W. 983. liminary estimate and final assess- osHolbrook v. Dickinson, 46 111. ment shall be made before letting 285; Moale v. Baltimore, 61 Md. the contract, an assessment made 224; Long Branch, etc., Com. v. after the contract had been per- Dobbins, 61 N. J. L. 659, 40 Atl. formed, charging the entire cost 599; Tripp v. Yankton, 10 S. D. of the work — which was much 516, 74 N. W. 447. And the greater than the first estimate — terms " front foot " and " abut- to the abutting lots, apparently ting foot " are synonymous. Mo- by the front-foot rule, without de- berly v. Hogan, 131 Mo. 19, 32 S. termining that they were benefited W. 1014. in any amount, is void. State v. «« Haviland v. Columbus, 50 Ashland, 88 Wis. 599, 60 N. W. Ohio St. 471, 34 N. E. 679; Sand- 1001. rock V. Columbus, 51 Ohio St. 317, 08 Raymond's Est. v. Ruther- 42 N. E. 255. ford, 55 N. J. 441, 27 Atl. 172; 173 § 228 THE LAW OF SPECIAL ASSESSMENTS. grounds, that this is permissible. It is not legitimate tax- ation because it is lacking in one of its indispensable ele- ments. It considers each lot by itself, compelling each to bear the burden of the improvement in front of it, without reference to any contribution to be made to the improvement by any other property, and it is consequently vdthout any apportionment. From accidental circumstances, the major part of the cost of an important public work may be ex- pended in front of a single lot ; those circumstances not at all contributing to make the improvement more valuable to the lot thus specially burdened, perhaps even having the opposite consequence. But whatever might be the result in particular cases, the fatal vice in the system is that it provides for no taxing districts whatever. It is as arbitrary in principle, and would sometimes be as unequal in operation, as a regula- tion that the town from which a state officer chanced to be chosen should pay his salary, or that that locality in which the standing army, or any portion of it, should be stationed for the time being, should be charged with its support. If one is legitimate taxation the other would be." ®^ 228. Another vital objection is the fact that under such a plan the question of benefits is entirely ignored, unless it be a presumption that each lot is actually benefited to the extent of the cost of the improvement fronting it. Benefits must of necessity be a question of fact. While the legislative prerogative of fixing the district is conclusive that no benefits can be assessed on property situated outside such district, it by no means follows that all the property situated within such district is benefited to the extent of the cost, or at all, and it may even suffer a marked depreciation in value. A presumptive benefit will support a general tax, but the benefit necessary to support a special assessment must be an actual one. It is gratifying to know that the courts have almost uniformly discountenanced assessment according to ex- 61 Taxation (3d Ed.), 1224. 174 LIMITATIONS ON THE POWEE. § 229 pense,®^ and that in some cases where it has been upheld it has been because of special circumstances which rendered the assessment equitable,^* with the exception of cases of side- walks, which are laid under the police power.®* — • e. Apportionment by area. 229. An assessment by area, or according to the number of acres contained in a tract benefited by the improvement, has frequently been adopted, and uniformly sustained in levee, drainage, and irrigation cases. A method of appor- tionment by superficial area, or number of square feet con- IlUnois. 62 Davis V. Litchfield, 145 111. 313, 21 L. R. A. 563, 33 N. B. 888; Palmer v. Danville, 154 111. 156, 38 N. E. 1067. Ka/nsas. Parker v. Challis, 9 Kan. 155; Lawrence v. Kielam, 11 Kan. 499. Kentuchy. Lexington v. McQuillan's Heirs, 9 Dana, 613, 35 Am. Dec. 159. MifCMgcm. Motz V. Detroit, 18 Mich. 495. Minnesota. Weller v. St. Paul, 5 Minn. 95, Gil. 70; Morrison v. St. Paul, 5 Minn. 108, Gil. 83. Missouri. St. Louis v. Clemens, 49 Mo. 552; Neenan v. Smith, 50 Mo. 525.? New Jersey. Baxter v. Jersey City, 36 N. J. L. 188; Van Tassel v. Jersey City, 37 N. J. L. 128. McKeesport v. Busch, 166 Pa. St. 46, 31 Atl. 49. Texcis. Allen V. Galveston, 51 Tex. 302. Washington. Seattle v. Yesler, 1 Wash. T. 572; New Whatcom v. Bellingham Bay I. Co., 9 Wash. 639, 38 Pac. 163. State V. Portage, 12 Wis. 563; State V. Portage, 14 Wis. 550; Kerstens v. Milwaukee, 106 Wis. 200, 48 L. E. A. 851, 81 N. W. 948, 1103. Contra. Warren v. Henley, 31' Iowa 31; Covington v. Bayle, 6 Bush. 204; Dallas v. Emerson, (Tex. Civ. App.) 36 S. W. 304; Sehenley v. Commonwealth, 36 Pa. St. 29, 78 Am. Dec. 359; Weeks v. Mil- waukee, 10 Wis. 242. In this case, the question really decided was that under the taxing power, assessments might be laid for the expense of building the street in front of abutting property. It does not go to the extent to which it is commonly quoted in the reports. 63 Springfield v. Sale, 127 111. 359, 20 N. E. 86; Howe v. Cam- bridge, 114 Mass. 388. 64Cooley, Taxation, (3d Ed.) 1129. 175 229 THE I»AW OF SPECIAL ASSESSMENTS. tained in urban lots abutting an improvement, is not in- frequent, and has also been siistained. By this method, the rule of uniformity is preserved, and it will work as im- partially in the cases to which it is applicable as any other method. The tax may be either specific, or ad valorem, ac- cording to the views of the courts of the various states as to the constitutional provisions as to taxation. In one case it was expressly held that the legislature may arbitrarily fix the value of lands for an assessment for levee purposes, and then levy a special per centage tax thereon.*® In one state, it was held that a statute authorizing a uniform specific tax of ten cents per acre per annum upon all lands in certain counties of a state, for levee purposes, and directing a sale on a speci- fied day, without notice, is constitutional.®® The court of last resort in Louisiana held in one case that an ad valorem tax on all property holders within the district was deemed to 65 Daily v. Swope, 47 Miss. 367. By the statute under considera- tion by the court in this case, the value of improved and unimproved land was fixed at $30 per acre and $5 per acre respectively, except in two counties, where it was fixed at $20 and $3 per acre respective- ly, and a tax of 2% per centum laid on the land. In an earlier case, the act provided for a uni- form tax not exceeding ten per cent per acre " upon all lands lying upon or within ten miles of the river, in said county, subject to taxation; and a uniform act of not exceeding five per cent per acre on all lands in said county subject to taxation lying ten miles from the Mississippi River," and the act was sustained. Williams V. Cammack, 27 Miss. 209, 61 Am. Dec. 508. See also, Egyptian Levee Co. v. Hardin, 27 Mo. 495, 72 Am. Dec. 276 ; Crowley v. Cop- ley, 2 La. Ann. 329; Yeatman v. Crandall, 11 La. Ann. 220; Bishop V. Marks, l5 La, Ann. 147; Mc- Gehee v. Mathis, 21 Ark. 40; Munson v. Atchafalaya etc., Dist. 43 La. Ann. 15, 8 So. 906; Ellis V. Pontchartrain etc. Dist., 43 La. Ann. 33, 8 So. 914. " It has been repeatedly decided in the supreme court of this state that the legis- lature may establish an arbitrary standard of estimating the amount of benefit derived by each tract of land within an assessment district declared to be benefited as a whole; as by reference to the number of front feet in the case of street assessments, or to the number of acres in cases of re- clamation." Reclamation District V. Evans, 61 Cal. 107. See, also. Smith V. Aberdeen, 25 Miss. 458; Alcorn v. Hamer, 38 Miss. 652. 66 O'Reilly v. Holt, 4 Woods 645, Fed. Cas. No. 10, 563. 176 LIMITATIONS ON THE POWEE. 230 be the only method, outside of payment from the proceeds of general taxation, -vvhich would comply with the constitu- tional requirements of equality and uniformity, in a proceed- ing for opening a street,®'' while in later cases they held that a specific tax for levee purposes was constitutional.®* 230. As sewers are but in fact a species of drain, al- though perhaps more particularly used in urban communi- ties, it is not strange that an apportionment of the cost on the area drained thereby is, in some communities, deemed an equitable method of apportionment. This practice has been sanctioned by the courts in many cases,®* but an act authorizing an assessment of the superficial area of such lots as the common council shall determine, without consideration of benefits, and whether contiguous to the sewer or not, is un- constitutional.''*' And for all purposes of local improvement there seems to be no reason why apportionment by area is not equally just with any other standard, unless it be that by benefit alone.''* «7 Municipality No. 2 v. White, tutional. Cleveland v. Tripp, 31 9 La. Ann. 446. 68 Wallace v. Shelton, 14 La. Ann. 498 ; Selby v. Levee Commis- sioners, 14 La. Ann. 437; Char- nock V. Fordoche etc. Co., 38 La. Ann. 323. 69 St. Joseph V. Farrell, 106 Mo. 437, 17 S. W. 497; Johnson v. Duer, 115 Mo. 366, 21 S. W. 800; Heman v. Allen, 156 Mo. 534, 57 S. W. 559; Swain v. Pulmer, 135 Ind. 8, 34 N. E. 639; Grimmell v. Des Moines, 57 Iowa 144, 10 N. W. 330. Contra. New Brunswick R. Co. v. Com- missioners, 38 N. J. L. 190, 20 Am. Rep. 380; Gillette v. Denver, 21 Fed. 822. Acts providing for sewer assessments at fixed rate per front foot, and per square foot of designated area, not unconsti- R. I. 50. TO Thomas v. Gain, 35 Mich. 155, 24 Am. Rep. 535. 71 Broadway etc. Church v. Mc- Atee, 8 Bush. 508, 8 Am. Rep. 480; Bradley v. McAtee, 7 Bush. 667, 3 Am. Rep. 309; Preston v. Roberts, 12 Bush. 570; Marshall V. Barber A. P. Co. (Ky.), 66 S. W. 182; De Koven v. Lake View, 129 111. 399, 21 N. E. 813; People V. BuflFalo, 54 App. Div. 629 ; Clapp V. Hartford, 35 Conn. 66; Webster V. Fargo, 181 U. S. 394, 45 L. ed. 912, 21 Sup. Ct. Rep. 623. Where the statute provides that the as- sessment for sewers shall be on the front foot plan, it is imma- terial that the assessment was made according to the number of square feet in the various lots, all being of the same length, Minn. 12 177 § 231 THE LAW or SPECIAL ASSESSMENTS. f. Assessment by value. 231. Another method of apportioning assessments is that based upon the valuation of the real estate within the tax- ing district It is more frequently adopted in drainage and levee cases, because of the large surface of lands upon which it operates, but is occasionally adopted for street improve- ments. When adopted for the latter purpose, the value of the land only is taken into consideration, the value of the improvements being excluded, upon the belief that while the land may be enhanced in value by the work, the improve- ments thereon very rarely are.'^* But a constitutional pro- & St. L. E. Co. V. Lindquist, 119 Iowa 144, 93 N. W. 103. A stat- ute, which provides that when a public improvement is made with- in a previously determined dis- trict, is not obnoxious as not af- fording due process of law because of the provision that the council shall by ordinance enact that the expense of such improvement shall be paid by the entire district, each lot or parcel of land therein to be assessed for the part of the whole expense which its area bears to the area of the entire district, ex- clusive of streets, alleys and pub- lic places, such act being a legis- lative declaration that all the property in the district is bene- fited by the improvement, and fixes the measure by which such benefit is ascertained. McMillan V. Butte, 30 Mont. 220, 76 Pac. 203. T2 " The defendants in error, plaintiffs below, also claim that the statute authorizing the con- struction of sewers and drains is unconstitutional, for the further reason that it does not provide for levying taxes with reference to the special benefits resulting from the improvements to the property taxed or to the owners thereof; and they also claim that the taxes were not in fact levied with refer- ence to resulting benefits. The taxes were in fact levied in pro- portion to the value of the lots taxed, without the improvements thereon. Now as the statute does not prescribe any mode for the ap- portionment of the taxes, we would think the city would have a right to adopt any mode that would be fair and legal; and we would also think that the mode adopted by the city was fair and legal. Of course it might in par- ticular-instances work injustice or hardship, and not be legal or valid; and in all probability there are such instances in the present case; but, looking at it as a mere rule of apportionment, we think it is valid. There are various modes of apportionment, among which are the following: (1) In accordance with the special bene- fits directly ascertained by assess- ors or appraisers; (2) in accord- ance with the value of the lots, without the improvements on them; (3) in accordance with the 178 LIMITATIONS ON THE POWEE. 232 vision requiring assessments for general taxation to be made on a cash valuation has no application to special assess- ments. ''* g. Assessment by benefits. 232. From what has gone before, we believe it must be deemed certain that assessment according to benefits actually received, is the only logical and practical method of assess- ment by which practical justice and equity can be obtained by both parties under the system of special assessment. This requires an actual view of the property by the board of commissioners of appraisement, who are appointed by or under legislative authority, and who are required to estimate value of the lots, with the im- provements on them; (4) in pro- portion to the frontage of the lots; (5) in proportion to the superficial area of the lots. The first would undoubtedly be valid, though it might be difiScult to make it practicable. The second we think is also valid as a general rule of apportionment. With re- ference to the other modes, we do not now wish to express any opin- ion." Gilmore v. Hentig, 33 Elan. 156, 5 Pac. 781. 73 Newman v. Emporia, 41 Kan. 583, 21 Pac. 593; Mason v. Spen- cer, 35 Kan. 512, 11 Pac. 402; Downer v. Boston, 7 Cush. 277; Wright V. Boston, 9 Cush. 233; Brewer v. Springfield, 97 Mass. 152; Workman v. Worcester, 118 Mass. 168; Snow v. Fitchburg, 136 Mass. 183; Williams v. Cam- mack, 27 Miss. 209, 61 Am. Dec. 508; State v. Newark, 31 N. J. L. 360; HoflFeld v. Buffalo, 130 N. Y. 387, 29 N. E. 747; Creighton v. Scott, 14 Ohio St. 438; North- western etc. Bank v. Spokane, 18 Wash. 456, 51 Pac. 1070. Contra. Findlay v. Frey, 51 O. St. 390, 38 N. E. 114; Walker v. Ann Ar- bor, 118 Mich. 251, 76 N. W. 394. But these two cases were under special statutes, and do not seem to depart from the general prin- ciple asserted in the text. An ad valorem tax on all property hold- ers within the district deemed the only method, outside of payment by general taxation, which would comply with the constitutional re- quirements of equality and uni- formity, in a proceeding for open- ing a street. Municipality No. Two V. White, 9 La. Ann. 446. A provision for considering benefits to the residue of a tract of prop- erty, part of which is taken for public- use, is in effect a tax on benefits ; being such, and not a tax on property, properly speaking, it is not in conflict with the provi- sions of the constitution requiring that all property subject to taxa- tion shall be taxed in proportion to value. Newby v. Platte Co., 26 Mo. 258. 179 §§ 233, 234 THE LAW OF SPECIAIi ASSESSMENTS. the result of the contemplated improvement upon all the property situated within the district. This district may be either fixed by law, or left to the discretion of the commis- sioners. The result is usually arrived at by a double proc- ess of appraisement of benefits and damages, including an estimate of the cost of the improvement. While it may not be theoretically so logical to consider this method by itself, we believe better practical results will be achieved by con- sidering the subject under the general head immediately fol- lowing. Benefits. 233. Outside of the state of South Carolina, which re- pudiates the system of taxation by special assessment, and Iowa, whose Supreme Court, until legislation to the contrary was obtained, steadily ignored the principle of benefits in special assessment, the Federal Courts, and the courts of last resort of all the other states that have passed upon the ques- tion, agree that the principle of apportionment by benefit is legal. Although the statute may provide that the assessment may be made according to frontage, or area, or value, or some other uniform method, the courts are by no means agreed that these metkods are strictly legal, but they are practically unanimous in holding the apportionment by benefit con- ferred, when so directed by statute, to be legal. It is the only method which is elastic enough to cover all cases, and render that exactness of justice which it should be the aim of all tax legislation to accomplish ; and the tax cannot materially exceed the cost of the work.'^^^ 234. There is a substantial unaminity of opinion by courts and text writers, that actual benefit conferred upon property by a local improvement, in excess of the benefit con- ferred by the public at large, is the foundation of the power of taxation by special assessment, and it is only logical that 78a Motz V. Detroit, 18 Mich. 495. 180 LIMITATIONS ON THE POWEE. §§ 235, 236 the apportionment should also be made on that basis. " The right to thus assess by benefits has been often aflBrmed, and can no longer be regarded as a controverted question." ''* 235. But in a larger sense, the actual benefit conferred must be regarded as the limitation upon the amount of the as- sessment, and in the absence of some constitutional inhibition, there can be no other restriction upon the power of taxation. The difference between the courts who hold in accordance with the above expressed opinion, and those who hold that there is no restriction upon the power, unless contained in the constitution, either state or federal, is gradually becoming narrowed, and the more recent decisions seem to be all tend- ing to uphold this essential limitation. 236. No benefit, no tax, is the rule, tersely expressed. An able text writer lays down the general rule that special taxation for a local improvement, as well as special assess- ments of benefits for the same, necessarily proceeds upon the theory of benefits to the property upon which it is levied, and that a burden imposed upon any other theory is a mere arbi- trary exaction; a taking of private property for public use without just compensation.''* Judge Dillon says, " Special benefits to the property assessed; that is, benefits received by it in addition to those received by the community at large, is the true and only just foundation upon which local assess- ments can rest; and to the extent of special benefits it is everywhere admitted that the legislature may authorize local taxes or assessments to be made." ''^ Judge Cooley writes T^Cooley on Taxation, (3d Ed.) taxation which is inconsistent 1206. It is entirely competent for with it. Hoyt v. E. Saginaw, 19 the legislature to authorize muni- Mich. 39, 2 Am. Eep. 76. cipal corporations to assess the 75 Burroughs on Taxation, whole or any part of the expense 467-8, and cases; Davis v. Litch- of local improvements upon the field, 145 111. 313, 21 L. R. A. 563, property deemed peculiarly bene- 33 N. E. 888. fited thereby, in proportion to the '6 " When not restrained by the benefit received. The constitution constitution of the particular does not expressly prohibit it, nor state, the legislature has a discre- is there aught in the power of tion commensurate with the broad 181 § 236 THE LAW OF SPECIAL ASSESSMEITTS. that " there can be no justification for any proceeding which charges the land with an assessment greater than the benefits; it is a plain case of appropriating private property to public uses without compensation," and that " a clear case of abuse domain of legislative power, in making provisions for ascertain- ing what property is specially benefited, and how the benefits shall be apportioned. This propo- sition as stated, is nowhere de- nied; but the adjudged cases do not agree upon the extent of legis- lative power. The courts which have followed the doctrine of the leading case in New York have as- serted that the authority of the legislature in this regard is quite without limits; but the decided tendency of the later decisions, in- cluding those of the courts of New Jersey, Michigan and Pennsyl- vania, is to hold that the legis- lative power is not unlimited, and that these assessments must be ap- portioned by some rule capable of producing reasonable equality, and that provisions of such a nature as to make it legally impossible that the burden can be appor- tioned with proximate equality are arbitrary exactions and not an exercise of legislative authority." Dillon Mun. Corp. sec. 761. " Whether it is competent for the legislature to declare that no part of the expense of a local improve- ment of a public nature shall be borne by a general tax, and that the whole of it shall be assessed upon the abutting property and other property in the vicinity of the improvements, thus for itself conclusively determining, not only that such property is specially benefited, but that it is thus benefited to the extent of the cost of the improvement, and then to provide for the apportionment of the amount by an estimate to be made by designated boards or officers, or by frontage or super- ficial area, is a question upon which the courts are not agreed. Almost all of the earlier cases as- serted that the legislative discre- tion in the apportionment of pub- lic burdens extended this far, and such legislation is still upheld in most of the states. But since the period when express provisions have been made in many of the state constitutions requiring uni- formity and equality of taxation, several courts of great respectabil- ity, either by force of this require- ment or in the spirit of it, trnd perceiving that special benefits ac- tually received iy each parcel of contributing property was the only principle upon which such assess- ments cwn justly rest, and that any other rule is unequal, oppres- sive and arbitrary, have denied the unlimited scope of legislative discretion and power, and asserted what must upon principle be re- garded as the just and reasonable doctrine, that the cost of a local improvement can be assessed upon particular property only to the ex- tent that it is specially and pecul- iarly benefited; and since the ex- cess beyond that is a benefit to the municipality at large, it must be borne by the general treasury." Id. 182 LIMITATIONS ON THE POWEE. §§ 237, 238 of legislative authority, in imposing the burdens of a public improvement on persons or property not specially benefited, would undoubtedly be treated as an excess of power and void." " 237. An eminent jurist, more than a generation ago, laid down the principle that " local assessments can only be con- stitutional when imposed to pay for local improvements, clearly conferring special benefits on the properties assessed, and to the extent of those benefits. They cannot be so im- posed when the improvement is either expressed, or appears, to be for general public benefit," ''^ and Mr. Justice Harlan, in a very vigorous and strongly reasoned opinion, holds that the exaction from a property owner, under the guise of a special assessment, of an amount in substantial excess of the benefit actually conferred by the improvement is, to the ex- tent of such excess, a taking of private property without due process of law.''® 238. The principles that the assessment must be limited to the actual amount of the benefit received, and that the legislature may fix the taxing district and assess the whole amount of the cost of the improvement to the property in such district, are diametrically opposed to each other, both in TTCooIey on Taxation, (3d Ed.), fit, it is, pro ta/nto, a taking of his 1179. private property for public use 78 Sharswood, J. in Hammett v. without any provision for compen- Fhiladelphia, 65 Pa. St. 146, 3 sation. . . . It is none the less Am. Rep. 615. " If the sovereign so if it be the act of the hydra- breaks open the strong box of an headed monster, a numerical ma- individual or corporation and jority, or that of a single auto- takes out money, or, if not being crat. It is the solemn duty of the paid on demand, he seizes and judiciary, under our constitution. Bells the lands or goods of the to guard and protect the right of subject, it looks to me very much property, as well from indirect at- like a direct taking of private tacks under any specious pretext, property for public use. It cer- as from open and palpable inva- tainly cannot alter the case to call sion." Id. it taxation. Whenever a local as- '» Norwood v. Baker, 172 U. S. sessment upon an individual is not 269, 43 L. ed. 443, 19 Sup. Ct. grounded upon, and measured by, Rep. 187. the extent of his particular bene- 183 § 239 THE LAW OF SPECIAL ASSESSMElirTS. principle and in practice. It is not a sufficient answer that the power of taxation is an attribute of sovereignty, and knows no limitation other than such as may be fixed by the constitution. To say that because a special assessment is levied under the taxing power, that the legislature is clothed with all the authority regarding special assessments that it is with regard to general taxation, is as monstrous as a claim that under the police power of issuing licenses, the right to foster a monopoly is conferred. One principle or the other must give way. They cannot live and flourish together un- der shade of the tree of the constitution.*" 239. Eliminate the principle of benefits, and nothing re- mains to justify the imposition of a special assessment. It then becomes, pure and simple, a taking of private property for public use without just compensation, and without due process of law. Courts may continue to evade this principle, or discourse learnedly of the power of the legislative branch of the government, but there can be no greater justification for the refusal of courts to interfere in a case of special assess- ment where manifest and substantial injustice has been done, than they have to interfere to set aside any unconstitutional enactment that is properly brought before them for review. 80 "The text books are full ol age.' In the other it was said: the general statement ' that the ' Special benefits are the only only basis for special assessments legitimate basis for special assesa- is special benefits.' Concerning ments, but the property owner this proposition there has never may not be specially assessed be- been any disagreement, so far as yond his special benefit found as a I have been able to learn. But matter of fact.' So, finding in re- from this common starting point, ported cases the expression that two very dissimilar lines of special benefits are the only legiti- thought have been followed. In mate basis for special assessments one it was said : ' Special benefits does not of itself show which are the only legitimate basis for theory a court has adopted." special assessments, but the legis- Adams v. Shelbyville, 154 Ind. lature may declare as a matter of 467, 49 L. E. A. 797, 77 Am. St. law that the property owners' spe- Rep. 484, 57 N. E. 114; dissenting cial benefits are exactly equal to op. by Baker, J. his special assessment by front- 184 LIMITATIONS ON THE POWEE. §§ 240, 241 It is gratifying to note that the apparent trend of judicial opinion is in this direction. 240. The theory of the E'ew York Court of Appeals seems to be that benefits are the proper foundation for the right to impose a special assessment, but that if the legislature arbi- trarily determines that the property in a certain district is in fact benefited to the amount of the tax imposed (whether such finding be true or false), that such action of the legislature is final, and that the courts cannot interfere.*^ To so hold, is to get the unfortunate property owner into a legislative cul- de-sac, from which he may not escape without being sorely fleeced. Why courts should continue to maintain the theory of legislative supremacy, thereby continually working grave and frequent injustice, when the adoption of the theory of benefits would evade such grave results, is an example of the longevity of error which is not pleasant to contemplate. 241. A careful study of the cases cited in the appended note will show many expressions of strong feeling and clear conviction on the principles laid down in the text, and es- tablish overwhelmingly the doctrine for which we are con- tending.*^ This constitutes a general review of the subject 83 Spencer v. Marchant, 100 N. 650, 28 So. 522. A municipal cor- Y. 587, 3 N. E. 682. poration may not levy an assess- Alabama. ment for a local improvement in 82 A municipality possessing due excess of the increased value of charter authority may levy assess- the property, by reason of the spe- ments upon abutting property for cial benefits derived from such im- sidewalk improvements to the ex- provement. City Council v. Fos- tent that the property is particu- ter, 133 Ala. 587, 596, 32 So. 610. larly benefited, and require the Arkcmsas. owner thereof to pay to the ex- Local assessments for the im- tent his property is benefited by provement of property can be jus- such improvement. It is not de- tifled only upon the idea of bene- iiied that such assessments against fits. particular property for street and Davis v. Gaines, 48 Ark. 370, sidewalk improvement may be con- 382, 3 S. W. 184; Carson v. St. stitutionally authorized, to the ex- Francis Levee Dist., 59 Ark. 513, tent that the property is specially 537, 27 S. W. 590; Ahern v. and peculiarly benefited. City Board of Improvement, 69 Ark. Council v. Birdsong, 126 Ala. 632, 68, 61 S. W. 575. 185 § 241 THE LAW OF SPECIAL ASSESSMENTS. by cases, and has been made very full because of the funda- mental importance of the subject. CaUfomia. Emery v. San Francisco Gas Co. 28 Cal. 345; Burnett v. Sacra- mento, 12 Cal. 76, 73 Am. Dec. 518. Where an assessment for opening a, street is made under a statute requiring it to be levied on the lots benefited " according to the enhanced value of the respec- tive parcels of land as fixed" in a report of the board of public works, the assessment must not include the value of the lot before the improvement, but it is limited to the enhancement in value caused by the improvement. Peo- ple V. Austin, 47 Cal. 353. A tax upon specific property to pay the expense of opening and grading a street, can be supported only on the ground that the prop- erty taxed is benefited by the im- provement. Matter of Market Street, 49 Cal. 546. Colorado. In the absence of constitutional restraint upon the taxing power, the legislature may authorize the whole or a portion of the cost of a local improvement to be assessed upon the property benefited. Pal- mer V. Way, 6 Colo. 106, Brown V. Denver, 3 Colo. 169. If in respect to the particular estate, the proprietor derives a substan- tial benefit from the maintenance of municipal government, he must contribute to its support. Brown v. Denver, 3 Colo. 169; Durant v. Kaufman, 34 Iowa 194. Cormectiout. Nichols V. Bridgeport, 23 Conn. 189, 60 Am. Dee. 636; Cone v. Hartford, 28 Conn. 363. So long as the injury to the owner's prop- erty does not exceed the benefit for laying out a road, he has no claim for damages. Trinity College v. Hartford, 32 Conn. 452. To ren- der legal a special assessment, it must appear that the benefit is direct and immediate, not contin- gent and remote. Hartford v. West Middle Dist., 45 Conn. 462, 20 Am. Eep. 687. In view of the uniform practice of assessing property only for special benefits, a statute authorizing an assess- ment for benefits, without in terms specifying only special benefits, will be construed as intending only such. Ferguson v. Stamford, 60 Conn. 432, 22 Atl. 782. Oeorgia. Benefit to the owner, so far as necessary to be passed upon, as well as the necessity for or rea- sonableness of, the improvement, being for the determination ot the legislature, is concluded by the act authorizing the assessment, and will not be enquired into by the courts unless in extraordinary cases presenting a manifest abuse of legislative authority. Speer v. Athens, 85 Ga. 49, 9 L. R. A. 402, 11 S. E. 802. "As a general proposition, upon the question of benefit, general or special, the owner is concluded by an expression of the legislative will. . . . As to whether a lot owner is benefited or not, is a question which should address it- self to the discretion of the muni- 186 LIMITATIONS ON THE POWEE. § 241 cipal authorities, but it is not al- lowable that they, under the guise of a public improvement, should arbitrarily deprive the citizen of his estate. If, therefore, in the levy of such assessments, the cost of the improvement be so dispro- portioned to the value of the es- tate sought to be improved, as that the levy of the assessment amounts to ii virtual confiscation of the lot owners' property, such assessment cannot be upheld as a legal or valid exercise of the pow- er to tax for such improvements." Atkinson, J., in Atlanta v. Ham- lein, 96 Ga. 381, 23 S. E. 408. Illinois. Special assessments are not a tax, but an equation between bur- den and benefit. Canal Trustees V. Chicago, 12 111. 406. The assessment is precisely in the ratio of the advantages accru- ing to the property in consequence of the improvement. It is but an equivalent or compensation for the increased value the property de- rives from the improvement. Can- al Trustees v. Chicago, 12 111. 403. In special assessments for local improvements the burden must be distributed among those who are benefited and upon all who are directly benefited by the proposed improvement, and in the ratio of benefits. Chicago v. Baer, 41 111. 306. Under Sec. 5, Art. 9, 111. Const., the legislature may au- thorize special assessments for public improvements which concern the whole public, to the amount of the benefit actually derived, the residue of the cost to be paid by equal and uniform taxation. Bed- ard V. Hall, 44 111. 91, following Chicago V. Lamed, 34 111. 203; Ottawa V. Spencer, 40 111. 211. See White v. People, infra. Spe- cial taxes are unconstitutional unless levied upon the valuation of the lands assessed, or accord- ing to the benefits accruing. Lee V. Ruggles, 62 111. 427; Hundley V. Commissioners, 67 111. 559. " Property can only be assessed for public improvements, on the principle of benefits received by the property from the construction of the work, and that the assess- ment should never exceed the ben- efits conferred; and it is essential that it shall appear, from the pro- ceedings themselves, that such was the principle on which the assess- ment was made. Crawford v. People, 82 111. 557. When the statute gives the authorities power to determine how a public improvement shall be paid for, the courts have no power to in- terfere with their discretion. Fagan v. Chicago, 84 111. 227. Under the Illinois Const, of 1870, whether the tax assessed for constructing a sidewalk exceeds the benefits or not, is immaterial. White V. People, 94 HI. 604. The former decisions of Chicago v. Lamed, 34 HI. 203, and Otta- wa V. Spencer, 40 111. 211, were made under the peculiar provi- sions of the constitution of 1848, and are no longer authority. Id. Benefits to be derived are es- sential elements to sustain a spe- cial assessment, and without bene- fits it cannot be imposed, and it must not exceed the benefits to be derived from the proposed im- provement. Commissioners v. Kel- sey, 120 HI. 482, 11 N. E. 256. Under the Illinois drainage act of 1885, property is not author- 187 § 241 THE LAW OF SPECIAL ASSESSMEK'TS. ized to be assessed beyond bene- fits. Illinois O. R. Co. v. Com- missioners, etc., 129 111. 417, 21 N. E. 925. Municipal authorities may not arbitrarily provide that an improvement within the cor- porate limits shall be deemed a public improvement to be paid for by special taxation of contiguous property, without reference to benefits, without subjecting their action to review by the courts. The only difference- in special as- sessments and special taxation as to benefits is, that in the latter case the determination of the city council is final — not an arbitrary, unreasonable determination, but one which can be seen to be fairly and reasonably made. Blooming- ton v. C. & A. R. Co., 134 111. 451, 26 N. E. 366. (Both pro- ceed on the theory of an equiva- lent.) A special benefit to pay for a local public improvement must not in any case exceed the benefit which will be conferred upon the property assessed by the construction of the improvement, and the benefit must be real and actual, and not merely based on conjecture. I. C. R. Co. v. Chicago, 141 111. 509, 30 N. E. 1036. In a proceeding by a, city to make a local improvement by the levy of a special tax upon con- tiguous property, no authority is given by express words, or neces- sary implication, to arbitrarily as- sess against any particular lot, or tract of land, more than its proportionate share of the cost of the improvement ordered to be raised by special taxation, and the expense of levying and col- lecting the same. Davis v. Litch- field, 145 111. 313, 21 L. R. A. 563, 33 N. E. 888. The benefits sought to be set off against the damages to the land not sought to be condemned must be real and not chimerical, otherwise the con- stitutional safeguard is rendered of no avail to protect the citizen in the enjoyment of his property free from being damaged for a public use without just compen- sation. Washington Ice Co. v. Chicago, 147 111. 327, 37 Am. St. Rep. 222, 35 N. E. 378. A spe- cial assessment for local improve- ments is to be levied upon prop- erty benefited, not to exceed the special benefits conferred by the making of the improvement, and unlike special taxation, which by the statute must be upon con- tiguous property, special assess- ments may extend to lands and lots specifically benefited whether abutting upon the improvement or not. Kelly v. Chicago, 148 111. 90, 35 N. E. 752; Roberts v. Evansville, 218 111. 296, 75 N. E. 923. Corporate authorities under the guides of a supplemental assess- ment, cannot impose upon the property assessed a greater bur- den than the benefits accruing to it from the proposed improvement, or cast upon it more than its just proportion and share of the total cost of the improvement made by the municipality. Greeley v. Cicero, 148 111. 632, 36 N. E. 603. " Special assessments and spe- cial taxes imposed for local im- provements, unlike general taxes, are based upon benefits to the property against and upon which they are assessed and levied, aris- ing from its increased value in consequence of the improvement. 188 UMITATIOJSrS ON THE, POWEB. § 241 They proceed upon the basis of benefits to the particular property, and are authorized only when the local improvement, either actually or presumptively, benefits the par- ticular property in an amount equal to the burden imposed." Shope, J., in Lightner v. Peoria, 150 111. 80, 37 N. E. 69. The im- position of a special tax is of itself a determination by leg- islative authority that the bene- fit to contiguous property will be as great as the burdens imposed, and courts will not interfere with the discretion of the municipal authorities except in case of abuse. Id. A special assessment cannot exceed the benefits the property derives from the improvement, and when the special benefits are less than the total cost, the excess must be assessed against the mu- nicipality. Newman v. Chicago, 153 111. 469, 38 N. E. 1053. The rule that the measure of benefit conferred by an improvement upon land restricted to a par- ticular use is its increased value for that use, applies as well to special taxation as to special as- sessments. C. & A. E. Co. V. Joliet, 153 111. 649, 39 N. E. 1077. In drainage proceedings, it is improper, as against a railroad, to show that the country adjacent would be improved and the rev- enues of the company thereby in- creased. The measure of benefits is the increased market value of the property against which the assessment is made. Rich v. Chicago, 152 111. 18, 38 N. E. 255. Where a party has had a hear- ing in court as to benefits to his property by a local improvement, and, after evidence produced on both sides, the court decided the property was benefited, such party has not been deprived of his prop- erty without due process of law by reason of the imposition there- on of a special tax. C. & N. W. R. Co. V. Elmhurst, 165 111. 148, 46 N. E. 437. By a wise piece of legislation, the principal ob- jection to the Illinois system of special taxation has been re- moved. The determination of benefits derived in cases of spe- cial assessment, was vested in the council, and its exercise was not ordinarily subject to review. In case of special assessments the question might be reviewed by a court and jury, but prior to July 1, 1895, an ordinance of the coun- cil levying a special tax was con- clusive as to benefits. The law was then changed to provide that no special tax should be levied up- on property in excess of the bene- fit derived by it from the improve- ment, that the ordinance should not be conclusive as to such bene- fits, but the amount of the special tax should be subject to review by the county court. Palmer v. Danville, 166 111. 42, 46 N. B. 629. Whether property specially assessed for an improvement is benefited thereby, and whether it is assessed more or less of its pro- portionate share of the cost there- of, are questions of fact for the jury. Brooks v. Chicago, 168 111. 60, 48 N. E. 136. Property should not be assessed to pay for a proposed improvement unless clearly benefited thereby, and then only to the amount which it is actually benefited. Chicago v. Adcock, 168 111. 221, 48 N. E. 155. The Illinois statute of 1895 does 189 § 241 THE LAW OF SPECIAL ASSESSMENTS. not abolish all distinctions be- tween assessment and special tax- ation, but takes from the city council the power to conclusively determine the question of benefits. Pfeiffer v. People, 170 111. 347, 48 N. E. 979. Special assess- ments for local improve- ments, though levied vmder the taxing power, are not regarded as ordinary taxes, but as an equivalent for benefits in the in- creased value of the property. Huston v. Tribbetts, 171 111. 647, 63 Am. St. Rep. 275, 49 N. B. 711. Evidence that the paving of a street will afford better fire pro- tection to the property, and that fire protection is an element of value in city real estate, is admis- sible upon the question of benefits from the improvement. Chicago Union Traction Co. v. Chicago, 202 111. 576, 67 N. E. 383. Indiana. A tax or assessment for local improvements is based upon the theory that it is a return for the benefit received by the person who pays the tax or by the property assessed. Commissioners v. Har- rell, U7 Ind. 500, 46 N. E. 124. The taxing district as a whole may be assessed only to the extent of the sum of the special benefits actually received by the several parcels of contributing property. . . . Where the cost of a local improvement exceeds the total sum of special benefits accruing therefrom, the deficit must be pro- vided from the general revenues of the city. . . . Each parcel of contributing property may be as- sessed only to the extent that it actually receives special benefits. Adams v. Shelbyville, 154 Ind. 467, 49 L. E. A. 797, 77 Am. St. Eep. 484, 57 N. E. 114. "This court has consistently held for thirty years that special benefits are the only foundation for special assessments." Hadley, C. J., in Adams v. Shelbyville, 154 Ind. 467, 49 L. R. A. 797, 77 Am. St. Rep. 484, 57 N. E. 114, citing New Albany v. Cook, 29 Ind. 220; Ross V. Stackhouse, 114 Ind. 200, 16 N. E. 501; Quill v. Indian- apolis, 124 Ind. 292, 7 L. R. A. 681, 23 N. E. 788; Barber, etc., Co. V. Edgerton, 125 Ind. 465, 465, 25 N. E. 436. I ceed one half the expense of lay- ing out and altering streets, to be assessed upon the adjacent pro- prietors benefited thereby, is con- stitutionally valid. Matter of Dor- rance Street, 4 R. I. 230. Texas. The legislature cannot authorize s, municipal corporation to assess upon abutting property the cost of a public improvement, in a sum materially exceeding the spe- cial benefits which that property may derive from the work. .Hutcheson v. Storrie, 92 Tex. 685, 45 L. E. A. 289, 71 Am. St. Rep. 884, 51 S. W. 848. Vermont. A municipal corporation may be authorized to make a special and local tax or assessment for build- ing sewers, sidewalks, drains and aqueducts, and apportion the ex- pense according to the benefits re- ceived. Allen V. Drew, 44 Vt. 174. A statute authorizing municipal authorities to lay local assess- ments for sidewalks against abut- ting property " for so much of the expense thereof as they shall deem just and equitable," is unconsti- tutional; in that, there is no fixed, certain and legal standard for assessment. Such assessments should be made in view of the benefit to the abutting land; but under- such a statute they may be made in view of the owner's ability to pay. Barnes v. Dyer, 56 Vt. 469. Virginia. Such an assessment " (for street improvement) " regards nothing but the benefits to be conferred on the particular estate." Asberry v. Roanoke, 91 Va. 562, 42 L. R. A. 636, 22 S. E. 360; Green v. Ward, 82 Va. 324. Wisconsin. " What we do mean to hold is, that it is the amount of the bene- fit, not exceeding the cost, and not the amount of the cost exceeding the benefit, with which property is chargeable in these assess- ments." Ryan, C. J., in Johnson v. Milwaukee, 40 Wis. 326. A special assessment in which the amounts are arbitrarily deter- mined, as by adding fifty per cent to the estimated cost of the work 201 241 THE LAW OF SPECIAL ASSESSMENTS. in front of each lot, upon a false and illegal basis, irrespective of the actual benefit to each lot, can- not be sustained. Watkins v. Zwie- tusch, 47 Wis 513, 3 N. W. 35. In respect to benefits to be as- sessed, it has finally been decided and followed that such benefits must be actual and not construc- tive or arbitrary; and that an as- sessment 'which is in excess of such benefits falls within the rule of the constitution as taxation, or, in other words, actual benefits are assessments proper for local im- provements, the power over which existed in the legislature, ante- cedent to the adoption of the con- stitution, as an inherent munici- pal power, and to that extent is not affected by the constitution; but all in excess of such actual benefits is a general or public tax, to be borne by the people of the district according to the constitu- tional rule of uniformity. Don- nelly V. Decker, 58 Wis., p. 465 op., 46 Am. Eep. 637, 17 N. W. 389. And see Lathrop v. Racine, 119 Wis. 461, 97 N. W. 192. United States Courts. A special assessment proceeds on the theory that the property charged therewith derives an in- creased value from the improve- ment, the enhancement in value being the consideration for the charge. 111. Cent. E. Co. v. De- catur, 147 U. S. 190, 202, 37 L. ed. 132, 136, 13 Sup. Ct. Rep. 293. The right of a lot owner to have the burden of a special assess- ment ratably distributed among the lots benefited, does not depend alone upon the state constitution, exacting equal taxation, but has its foundation in those elementary 202 principles of equity and justice which lie at the root of the social compact. Pay v. Springfield, 94 Ped. 409; Lyon v. Tonawanda, 98 Fed. 361; Loeb v. Trustees, 91 Fed. 37. " Special assessments to pay for local improvements of public streets and highways do, in prac- tical effect, deprive owners of their property without due process of law, unless the property subject to assessment is benefited by the improvement correspondingly to the amount of the assessment. White V. Tacoma, 109 Fed. 34; Hanford, D. J. If lands are included which can- not possibly be benefited, the de- cision would be subject to review. Fallbrook Ir. Dist. v. Bradley, 164 U. 8. 112, 41 L. ed. 369, 17 Sup. Ct. Kep. 56. In French v. Barber Asphalt Pav. Co., 181 U. S. 324, 45 L. ed. 879, 21 Sup. Ct. Rep. 625, Justice Har- lan wrote the dissenting opinion. As he wrote the opinion of the court in Norwood v. Baker, his explanation of what was actually decided in that case is entitled to great weight. He says of Nor- wood V. Baker, that " the affirm- ance of the judgment in that case was upon the sole ground that the assessment was made under a rule that absolutely excluded any in- quiry as to special benefits. Such a rule was held to be void because it rested upon the theory that to meet the cost of opening a street private property could be specially assessed for an amount in sub- stantial excess of special benefits accruing to it from the improve- ment made in the interest of the general public." French v. Barber LIMITATIOITS ON THE POWEE. § 241 Asphalt Paving Co., 181 U. S. 324, 45 L. ed. 879, 21 Sup. Ct. Rep. 625. " The question of special bene- fit and the property to which it extends is of necessity a question of fact, and when the legislature determines it in a case within its general power, its decision must of course be final." Spencer v. Merchant, 125 U. S. 353, 31 L. ed. 767, 8 Sup. Ct. Eep. 921, op. The ingrained error is in assum- ing that the legislature has " with- in its general power " the right to determine the extent of benefits. From its very nature, that ques- tion is one for judicial determina- tion. A resolution that the common council fix and determine that a specified district is benefited by the opening of a certain street, and that there be assessed and levied upon the real estate therein included a, certain amount, in proportion, as near as may be, to tne advantage which each lot or parcel is deemed to acquire by the improvement is in substantial con- formity to Mich. Comp. Laws 1897, Sec. 3406, which in effect provides that the common council may assess upon such district as it deems benefited the whole or a part of the cost of the improve- ments, in proportion, as nearly as may be, to the advantage which each lot derives, and limits the as- sessment on any lot to the bene- fits received. Goodrich v. Detroit, 184 U. S. 432, 46 L. ed. 627, 22 Sup. Ct. Rep. 397; Voigt v. De- troit, 184 U. S. 115, 46 L. ed. 459, 22 Sup. Ct. Rep. 337. Assessment of portion of cost of a public park upon property spe- cially benefited, held legal in Shoe- maker V. U. S., 147 U. S. 282, 37 L. ed. 170, 13 Sup. Ct. Rep. 361. In Norwood v. Baker, the de- cision of the court, in its broad sense, was that where there was no inquiry into special benefits, even in the absence of an allega- tion that plaintiff's property was not benefited by the improvement and to the amount of the full cost thereof, a rule of assessment au- thorizing the full expense of the taking of the land and the im- provement thereof to be charged against the abutting property was unconstitutional as authorizing a, taking of private property for public use without compensation. The minority dissent on 4 grovmds, opinion by Brewer, J. 1. That the Const, of Ohio au- thorized the procedure. 2. Also the Const. U. S. under decision Shoemaker v. U. S., 147 U. S. 302; 37 L. ed. 186, 13 Sup. Ct. Rep. 361 ; Bauman v. Ross, 167 U. S. 548, 42 L. ed. 270, 17 Sup. Ct. Rep. 966. 3. The cost of the improvement being settled judicially, plaintiff being a party, and receiving the award, is estopped to deny that the cost was properly ascertained. 4. That it is a legislative func- tion to determine the area of the assessment district, and that such determination is final. As to the last reason, the opin- ion in Spencer v. Marchant, 100 N. Y. 585, 3 N. E. 682, is quoted to the effect that the legislative act in question determined absolutely and conclusively, the amount of the tax to be raised, and the prop- erty to be assessed and upon which it was to be proportioned. 203 § 241 THE LAW OF SPECIAL ASSESSMENTS. " Each of these things was within the power of the legislature, whose action cannot be reviewed in the courts upon the ground that it acted unjustly or without appro- priate and adequate reasons.'' While it is unquestionably true that legislative action upon a sub- ject which is a matter of legis- lative discretion cannot be re- viewed by the courts, yet no one denies the power of the courts to interfere when the fundamental law of the Constitution is violated. The decision of the court in Nor- wood v. Baker was to the effect that the Fourteenth Amendment was violated, and neither the pro- visions of the Constitution of Ohio nor the act of its legislature which contravene the provisions of the Great Amendment will be valid or allowed to prevail. If this con- tention be true, then the 4th ob- jection in the dissenting opinion seems not well taken. Contra. " The imposition of burdens for local improvements not infrequent- ly results in a practical confisca- tion of the property sought to be benefited." Kinne, J., in Farwell v. Des Moines etc. Co., 97 Iowa, 302, 35 L. R. A. 63, 66 N. W. 176. There could hardly be a more striking commentary upon the Iowa theory. The improvement of a street is a public object which will support a special assessment therefor on abutting property, regardless of the question of benefits to such property. Dewey v. Des Moines, 101 Iowa, 416, 70 N. W. 605. In exercising the power of local assessment, the legislature is not limited to the actual increase in value of the property assessed resulting from the local assess- ment. Rolph V. Fargo, 7 N. D. 640, 42 L. E. A. 646, 76 N. W. 242; Webster v. Fargo, 9 N. D. 208, 56 L. R. A. 156, 82 N. W. 732. " The owners of adjacent lots on cither side must be at the expense of making the -street; they must pay all necessary expenses. Each lot must pay for half the street in front, make the street and pay all incidental expenses. If one per- son owned the whole, he must give the land for the street and pay all expenses. If one owned the street and two others the lots on either side, the owners of the lots would pay for the street itself and all expenses. If, indeed, any im- provement benefits other property, the assessments may be extended to it." Savage, C. J., in the matter of opening Twenty-sixth street, 12 Wend. 203 (1834). Note. All dictum, and no au- thorities cited in entire opinion. Special Taaoation. The power of special taxation of contiguous property for making local improvements, does not de- pend upon the fact of an equiva- lent benefit to the property taxed. The power is given unqualifiedly, with no restriction as to benefits resulting to contiguous property. Galesburg v. Searles, 114 111. 217, 29 N. E. 686. Where it is apparent that a local improvement cannot benefit contiguous property, a special tax on such property for making such an improvement cannot be sus- tained. Bloomington v. C. & A. R. Co., 134 111. 451, 26 N. E. 366. Where the council of an Illinois 204 LIMITATIONS ON THE POWEE. § 241 city adopts special taxation as the method of paying for a street im- provement, it has power to require that the cost of the same shall be assessed upon the lots abutting upon the streets in proportion to the frontage of the lots upon the same. Enos v. Springfield, 113 111. 65; Davis v. Litchfield, 155 111. 384, 40 N. E. 354. The owners of property affected by a special assessment have the right to have the question of bene- fits passed on by a jury, but they have no such right where contigu- ous property is specially taxed. Springfield v. Green, 120 111. 269, 11 N. B. 261. Under Art. 9, of the 111. Const, the total amount of benefits to be assessed is fixed by the commis- sioners, and is thereby conclusively determined.. Jones v. Lake View, 161 111. 663, 38 N. E. 688. 205 CHAPTER IV. OP THE PUBPOSES FOE WHICH SPECIAL ASSESSMENTS AEE ATJTHOEIZED. In general, 242-243. Streets, 244. a. Opening, widening and va- cating, 245-247. b. Grading and paving, 248-249. c. Kepairing and maintenance, 250. d. Culverts, 251. Sidewalks, 252. Country roads and highways, 253- 254. Bridges and viaducts, 255. Public parks, 256-257. Levees, dykes and breakwaters, 258. Waterworks, pipes and mains, 259-262. Drains and sewers, 263-270. Irrigating arid lands, 271. Sweeping, sprinkling and lighting streets — Removing snow, 272-273. Improving water courses, 274 Personal property, 275. Miscellaneous, 276-278. In general. 242. Having thus far examined the origin of the power of special assessment, the basis upon which it rests, and the general limitations of its application in principle, we will now examine the particular purposes to which it may be ap- plied. That the purpose must be a public and local one has already been seen,^ but beyond that it is difficult, if not im- possible, to lay down a general rule, or define an even ap- proximately correct class of property or subjects which are liable to the imposition. 243. It is both the power and the duty of the proper public authorities to reasonably declare what shall constitute local improvements, and their nature and character, having due reference to benefits, and involving the idea of perma- nence.'' As a general rule property not abutting on the line 1 Ch. Ill, Public Purpose. lie improvement, which, by reason 2 A local improvement is a pub- of being confined to a locality, en- 206 PUEPOSES FOE WHICH AXJTHOEIZED. §§ 244, 245 of the improvement is not subject to an assessment for bene- fits,* but it is for the legislature to decide in the first in- stance, as we have already seen.* Streets. 244. It is in the improvement of streets and highways that the power to levy special assessments is more generally employed. a. Opening, widening and vacating. 245. As the opening and widening of streets involves the appropriation of private property to public use, the power of eminent domain is invoked to obtain the requisite author- ity for taking the land, but the condemnation proceedings hances the value of adjacent prop- erty, as distinguished from general benefits. As applied to a street, such iiriproTement signifies the a,ctual or presumptive betterment of the street. 111. Cent. E. Co. v. Decatur, 164 111. 173, 45 Am. St. Eep. 124, 38 N. E. 626. And see Hagar v. Supervisors, 47 Cal. 222; Macon v. Patty, 57 Miss. 384, 34 Am. Rep, 451. 3 In re Fifty-fourth Street, 165 Pa. St. 8, 30 Atl. 503. In re Orkney Street, 194 Pa. St. 425, 48 L. R. A. 274, 45 Atl. 314. Connecticut. * Nichols V. Bridgeport, 23 Conn. 189, 60 Am. Dec. 636; Trin- ity College V. Hartford, 32 Conn. 452. Louisia/na. Municipality No. 2 v. White, 9 La. Ann. 446. Maryland. Alexander v. Mayor, etc., 5 Gill, 383, 46 Am. Dec. 630; Moale v. Mayor, etc., 5 Md. 314, 61 Am. Dec. 276. Michigan. Powers' Appeal, 29 Mich. 504; Detroit v. Daly, 68 Mich. 503, 37 N. W. 11. New Jersey. Holmes v. Mayor, etc., 12 N. J. Eq. 299; State v. Dean, 23 N. J. L. 335; State v. W. Hoboken, 51 N. J. L. 267; 17 Atl. 110. New York. Livingston v. Mayor, &c., 8 Wend. 85, 22 Am. Dec. 622. In re Twenty-sixth Street, 12 Wend. 203. In re De Graw Street, 18 Wend. 568. Litchfield v. Vernon, 41 N. Y. 123. Permsylvania. McMasters v. Commonwealth, 3 Watts, 292; Wray v. Pittsburgh, 46 Pa. St. 365; Hammett v. Phil- adelphia, 65 Pa. St. 146, 3 Am. Rep. 615. Wisconsin. Helton V. Milwaukee, 31 Wis. 27. United States. Bauman v. Ross, 167 U. S. 548, 42 L. ed. 270, 17 Sup. Ct. Rep. 966. 207 § 246 THE LAW OF SPECIAL ASSESSMENTS. are not infrequently combined with those for levying the Bpecial assessment to raise the necessary funds to pay in whole or in part for the expense of the taking and the im- provement. The power has been expressly conferred by statute in most of the various states, and is settled beyond dis- pute.^ The power to widen streets is included in the greater power to open,* but is usually given to cities by express char- ter authority. 246. A railway contiguous to a proposed street improve- ment may be specially taxed for the making of such improve- ment,'' as well as a railroad passenger station and ground used as a freight station or lumber yard.® But the latter case holds that an assessment upon a railroad right of way for street paving cannot be upheld, because of the impossibility of a benefit being conferred on the right of way by such pav- ing, and the whole theory which justifies such a charge fails in such case.® And for the same reason, railroad property in tunnels under the street, and enclosed ornamental grounds on the surface thereof, over such tunnels, which tend to beautify the street, but are neither useful nor beneficial to the public, cannot be deemed benefited by the pavement of the street, nor capable of assessment therefor." But an act providing for the assessment of property benefited, to pay a railroad company for closing the entrance to a tuimel in a city street, and relinquishing the right to use steam within the city limits, and also to pave the street, lay rails upon the 6 Meyer v. Covington, 103 Ky. 41 N. E. 877. And see note in 28 546, 45 S. W. 769; Cook v. Slo- L. E. A. 249. cum, 27 Minn. 509, 8 N. W. 755; s Mount Pleasant v. B. & O. R. Jones V. Board, &e., 104 Mass. 461; Co., 138 Pa. St. 365, 11 L. R. A. Sears v. Com'rs, 180 Mass. 274, 62 520, 20 Atl. 1052. L. R. A. 144, 62 N. E. 397; Han- » Allegheney v. W. Penn. R. Co., cock St. Extension, 18 Pa. St. 26. 138 Pa. St. 375, 21 Atl. 763; C, 7 C. & A. R. Co. V. Joliet, 153 M. & St. P. E. Co. v. Milwaukee, 111. 649, 39 N. E. 1077; C. R. I. 89 Wis. 506, 28 L. R. A. 249, 62 & P. E. Co. V. Moline, 158 lU. 64, N. W. 417. 10 People V. Gilon, 41 Hun, 510. 208 PURPOSES FOB WHICH AUTHORIZED. §§ 247, 248 surface, and run horse ears thereon, is a constitutional and valid exercise of the taxing power. ^^ 247. A strictly analogous power is that of paying for a turnpike or toll-road along a public street by levying a special assessment on the property abutting the part condemned,*^ or vacating streets by action of the common council.^* And although an ordinance provides that the cost of the improve- ment shall be raised by a special assessment alone, it is within the power of the commissioners appointed under the Illinois statute to assess a portion of the cost to the city or village as a whole, and it is necessarily implied that such portion be paid from the funds raised by general taxation.** b. Grading and paving. 248. It was early held in Wisconsin, that under the con- stitution of that state and the charter of the city of Milwau- kee, every lot might be compelled to build the street in front of it, with such exceptions as the law may provide, and the only remedy for abuses under the rule is such restrictions as the wisdom of the legislature may impose on the exercise of this power.*® Although this decision has not been ex- pressly overruled, it is the law in that state that the assess- ment cannot exceed the benefit.*® But Illinois has held practically the same doctrine,*^ and its validity has been 11 Litchfield v. Vernon, 41 N. Y. is In re Barclay, 91 N. Y. 430. 123; People v. Lawrence, 41 N. Y. In re Howard Street, 142 Pa. St. 137. In the latter case, the court 601, 21 Atl. 974. say: "This assessment was made i* Newman v. Chicago, 153 111. for a public object, for a public 469, 38 N. E. 1053. improvement of the street. That is Weeks v. Milwaukee, 10 Wis. object was the removal of an in- 242; Lumsden v. Cross, 10 Wis. jurious and dangerous mode of 282. using the street for a railroad to i« Lathrop v. Racine, 119 Wis. run by steam, and the substitu- 461, 97 N. W. 192. tion of a horse railroad in its i7 Although the diflFerence in ex- stead; embracing, also, the filling pense between compelling a person up of an objectionable tunnel in to lay an expensive Nicholson the street." pavement in front of his property, 12 Winslow V. Cincinnati, 200, and a simple board sidewalk, is 291. very great, yet there is no diflfer- H 209 § 248 THE LAW OF SPECIAX ASSESSMENTS. vigorously assailed.^* In the control and improvement of the public streets, a municipal corporation in the absence of any lawful restriction to the contrary, has the same rights and powers as a private owner has over his land, and, as to abutting owners, is subject to the same liabilities.^* The power of grading and paving streets,*" and of regrading and enee in the principle governing them. Ottawa v. Spencer, 40 HI. 211; Bedard v. Hall, 44 111. 91. 18 Christiancy, J., in Woodbridge V. Detroit, 8 Mich. 304, says: " With the exception of the case of Weeks v. Milwaukee, which rests upon a peculiar feature of their charter not found in ours, and where the absence of a rule of apportionment seems to have been overlooked, I have met with but one reported case in which it has been directly held that the duty and the whole expense of making a street improvement in front of the owner's property could be imposed upon the owner without reference to any ratio or rule of apportionment.'' Citing State V. Dean, 23 N. J. L. 335. isMunger v. St. Paul, 57 Minn. 9, 58 N. W. 601. English. 20 Assessments for paving are a charge against the property, and the amount may be recovered of the future owners of the premises. Plumstead Board of Works v. In- goldby, L. E. 8 Exeh. 63; Vestry of Bermondsey v. Bamsey, L. R. 6, C. P. 247. United States. Willard v. Presbury, 14 Wall. 676, 20 L. ed. 719 ; Lent v. Tillson, 140 U. S. 316, 35 L. ed. 419, 11 Sup. Ct. Eep. 825; Norwood v. Baker, 172 U. S. 269, 43 L. ed. 443, 19 Sup. Ct. Rep. 187. Indiana. Shank v. Smith, 157 Ind. 401, 55 L. R. A. 564, 61 N. E. 932. Kentucky. Louisville Steam Forge Co. v. Mehler, Ky. Minnesota. Rogers v. St. Paul, 22 Minn. 494. Macon v. Patty, 57 Miss. 378, 34 Am. Rep. 451. New Jersey. State V. Atlantic City, 34 N. J. L. 99. New York. In re Dugro, 50 N. Y. 513. Pennsylvania. Northern Liberties v. St. John's Church, 13 Pa. St. 104; In re Han- cock Street, 18 Pa. St. 26; Pray v. Northern Liberties, 31 Pa. St. 69; Schenley v. Commonwealth, 36 Pa. St. 29, 78 Am. Dec. 359; Mc- Gonigle v. AUegheney, 44 Pa. St. 118; Wray v. Pittsburgh, 46 Pa. St. 365; Hammett v. Philadelphia, 65 Pa. St. 155, 3 Am. Rep. 615; In re Beechwood Avenue, 194 Pa. St. 86, 45 Atl. 127; Harrisburg v. Funk, 200 Pa. St. 348, 49 Atl. 1135. Texas. Adams v. Fisher, 75 Tex. 667, 6 S. W. 772. 210 PUBPOSES FOB WHICH ATJTHOEIZED, § 249 repaving,^^ is too well settled to be within the municipal authority to be open to question. It is a necessary adjunct of the governing power, and although to a considerable ex- tent payable by general taxation, the prevalent custom is to pay for such improvements by special assessment. Many im- portant questions regarding the procedure to be followed, the damages recoverable, and cognate matters, are discussed in a subsequent chapter.** 249. Street paving is an exercise of the taxing power, and not of eminent domain.'** There is no rule of law which requires a portion of the street to be set aside for foot pas- sengers, and the council may order a street paved the entire width, in effect abolishing the sidewalk.'** In Pennsylvania it is the rule that repaving is not a charge upon an abutter,** but this is not the general rule. The power to make local California. 21 MeVerry v. Boyd, 89 Cal. 304, 26 Pac. 885. India/na. Indianapolis v. Mansur, 15 Ind. 112; Lafayette v. Bowler, 34 Ind. 140. Louisiana. O'Leary v. Sloo, 7 La. Ann. 25 ; Municipality No. Two v. Dunn, 10 La. Ann. 57. Michigan. Sheley v. Detroit, 45 Mich. 431, 8 N. W. 52; Wilkins v. Detroit, 46 Mich. 120, 8 N". W. 701, 9 N. W. 427. Minnesota. State V. District Court, 80 Minn. 293, 83 N. W. 183. New York. People V. Mayor, &c., 4 N. Y. 419, 55 Am. Dec. 266 • In re Astor, 53 N. Y. 617; In re Burmeister, 76 N. Y. 174; In re Garvey, 77 N. Y. 523; Genet v. Brooklyn, 99 N. Y. 306, 1 N. E. 777; Spencer v. Merchant, 100 N. Y. 585, 3 N. E. 682; Jones v. Tonawanda, 158 N. Y. 438, 53 N. E. 280. Ohio. Cleveland v. Wick, 18 Ohio St. 303; Richards v. Cincinnati, 31 Ohio St. 506. Wisconsin. Dean v. Borschenius, 30 Wis. 236; Blount v. Janesville, 31 Wis. 648; Adams v. Beloit, 105 Wis. 363, 47 L. R. A. 441, 81 N. W. 869. 22 See Chapter IX, infra. 23 Mayor, &c., v. Green Moun- tain Cemetery, 7 Md. 517. 2*Brevoort v. Detroit, 24 Mich. 322. 25 In re Morewood Ave., 159 Pa. St. 20, 28 Atl. 123, 132; Hammett V. Philadelphia, 65 Pa. St. 146, 3 Am. Rep. 615. The cost of repaving a public street cannot be assessed upon and collected from the property abut- ting on the street, even though the cost of the original paving was not borne by the then owners of 211 § 250 THE LAW OF SPECIAL ASSESSMENTS. assessments upon property specially benefited, is a continuing one, in the absence of charter restrictions, and abutting o-wners may have the cost of repaving, as well as of paving, streets assessed upon their property.*® — — c. Bepairing and maintensmce 250. As a general rule, the repairing and maintenance of streets is chargeable to and payable out of some general fund, and it is apparent that the proper care of the streets after they are once made, is for the benefit of the public at large, and should be at the public charge. The elements of local improvement and resulting benefit are wanting. In those states which hold repaving to be a proper subject for local assessment, and a continuing power, the line between a prac- tical reconstruction and repair is sometimes very narrow, and is generally the subject of legislation. In Pennsylva- nia it has been held that repairing is to be paid by the public at large, and that the owner shall not be charged for re- pairing, repaving, or an improvement of the street after it the abutting property, but by the Minn. 293, 83 N. W. 183; Sheley public. Special local benefits ac- v. Detroit, 45 Mich. 431; 8 N. W. crue to properties abutting on a 52; Municipality No. Two v. street only at the time of the or- Dunn, 10 La. Ann. 57. iginal paving and assessments for Improving a roadway 200 feet such benefits, if exercised at all, wide, of which forty feet in the must be exercised at or near the center was originally paved, by time the benefits accrue. Harris- leaving 100 feet in the center for burg V. Segelbatrm, 151 Pa. St. park purposes, and paving with as- 172, 20 L. E. A. 834, 24 Atl. 1070. phalt a strip 25 feet wide on each Where a strip in the middle of side, constitutes a repavement, in a street has been macadamized un- the absence of a showing that the der the authority of a city ordi- original improvement was inade- nanoe and paid for by the owners quate, within the meaning of a of the premises at the time, a charter provision requiring the subsequent owner cannot be com- cost of such work to be paid from pelled to pay the cost of a vul- the " repaving " fund instead of canite pavement laid upon the by an assessment on abutting same strip. Philadelphia v. Ehret, owners. Dickinson v. Detroit, 111 153 Pa. St. 1, 25 Atl. 888. Mich. 480, 69 N. W. 728. 28 State V. District Court, 80 212 PUEPOSES FOE WHICH AUTHOEIZED. §§ 251, 252 has been paved or macadamized. ^'^ But in Wisconsin, char- ter provisions authorizing street commissioners to require lot owners to clean and repair streets and alleys, to the center thereof, opposite their respective lots, and to make contracts for doing such work at the expense of the respective lots in case of the owner's neglect, are valid. *^* Other states uphold the repair and maintenance of streets to be a proper subject for special assessment,'*® but custom and the weight of authority are to the contrary.*® But a municipality can- not collect a fund in advance to be used at some indefinite time for the repair and maintenance of a pavement under the pretense of paying the cost of its construction.*" d. Culverts. 251. Culverts, curbing and guttering, being essential parts of the roadway, are usually considered proper subjects for the exercise of the power of local asessment,*^ but are not a part of the sidewalk, and cannot be laid under an order to construct a sidewalk.*" Sidewalks. 252. Taxation for sidewalks is held by many courts to be more particularly referable to the police power, and the ques- 2T Alcorn v. Philadelphia, 112 Wilson v. Chilcott, 12 Colo. 600, Pa. St. 494, 4 Atl. 185. 21 Pac. 901. But this was later 2T a Cramer v. Stone, 38 Wis. overruled in Denver v. Knowles, 17 259. Colo. 204, 17 L. R. A. 135, 30 28 Covington v. Boyle, 6 Bush. Pac. 104. 204; Estes v. Owen, 90 Mo. 113, so State v. District Court, 80 2 S. W. 133. Minn. 293, 83 N. W. 183. 29 Philadelphia v. Lyon, 35 Pa. si Williams v. Bisnago (Cal.), St. 401; McVicker v. Commis- 34 Pac. 640; In re Fifty-fourth sioners, 25 Ohio St. 608. Street, 165 Pa. St. 8, 30 Atl. 503; It was early held in Colorado Wistar v. Philadelphia, 111 Pa. that the construction of curb- St. 604, 4 Atl. 511. Extent of dis- stones and gutters not being with- cretion given authorities. See in the police power of the state, Shannon v. Hinsdale, 180 HI. 202, a special assessment against abut- 54 N. E. 181. ting owners to pay therefor is void 32 Job v. People, 193 111. 609, 61 Tinder the Colorado Constitution N. E. 1079. Tequiring uniformity in taxation. 213 §§ 253, 254 THE LAW OF SPECIAL ASSESSMENTS. tion of benefits ignored,^' but they are also ordered made and paid for by special assessment on the front foot basis,** or other principle of apportionment, and in practically the same manner as other street improvements.*** Country roads and highways. 253. The minor political subdivisions of the state are usually chargeable with the duty of making and keeping in repair the necessary public roads, and clothed with authority to levy a special tax, designated as a road tax, to pay for the same, or to pay the cost out of the general levy; but the power to lay special assessments as such, for such purposes, has been sharply contested, and the law is by no means gen- erally settled, depending largely on the construction of some constitutional provision, or the precedents established by pre- vious decisions on somewhat analogous questions, and the matter may be considered as bounded by state lines. 254. It the power to impose special assessment be limited by the benefits received, then it is manifest that in many cases it is inapplicable to rural highways. Such a highway ssCooley on Taxation, (3d ed.), ments, and justifies an enactment pp. 1128-1130. whereby a city lot may be charged 84 Speer v. Athens, 85 Ga. 49, 9 with the entire expense of a side- L. R. A. 402, 11 S. E. 802. walk in front of it, without llmi- sc Where a charter requires lot tation as to equality or uniform- owners to build sidewalks after due ity. White v. People, 94 III. 604 ; notice, and, failing so to do, the State v. Fuller, 34 N. J. L. 227; council are to cause them to be Flint v. Webb, 25 Minn. 93; built, and the expense assessed the Tourmer v. Municipality No. 1, 5 lots adjoining such walk, it be- La. Ann. 298; Lufkin v. Galves- comes unnecessary for the council ton, 58 Tex. 545; Kemper v. King, when directing the walks to be 11 Mo. App. 116. constructed, to specially direct that An act authorizing a municipal- such construction shall be " at the ity to cause sidewalks to be con- expense of the " lots adjoining the structed and to assess the cost walks. Scott Co. v. Hinds, 50 upon abutting property in propor- Minn. 204. tion to the accruing benefit, and The const, of 1870, in Illinois, making such assessment a lien on has authorized the legislature to such property, is valid. Mayor, vest corporate authorities with &c., v. Klein, 89 Ala. 461, 8 L. R. power to make local improve- A. 369, 7 So. 386. 214 PUEPOSES FOE WHICH AUTHOEIZED. § 254 is not a " local improvement " within the meaning of a con- stitutional provision requiring taxes to be as nearly equal as may be, and the resulting benefits of the improvement accrue to the general public.*® But it has been decided that a specific assessment an acre on all lands within a given dis- tance of each side of a road, for the purpose of making it a free turnpike, may be authorized by statute, not beipg un- constitutional,*'' and in Indiana the constitutionality of sim- ilar acts for free turnpike and gravel roads has been repeat- edly decided,*^ with the limitation that none but the legiti- mate expense of the construction may be assessed against the land owners,*® but providing for an additional as- sessment when the original assessment proves insufficient.*** The general principle of paying for a county road by means of special assessment, has likewise been upheld in Washing- ton,** and in New Jersey, the power of a city to grade and pave a turnpike in the city limits has been sustained,*^ but as a general rule the method of assessment and taxation for S6 In re Washington Ave., 69 Pa sonable or just or fair to require St. 352, 8 Am. Rep. 255; Graham the farms along the line of a coun- r. Conger, 85 Ky. 582, 4 S. W. 327; try road to pay the entire cost and Conger v. Bergman, 10 Ky. L. expense of opening and laying the Rep. 899, 11 S. W. 84. same out. Sperry v. Flygare, 80 " Taxation according to benefits Minn. 327, 49 L. R. A. 757, 81 as applied to improvements in the Am. St. Rep. 261, 83 N. W. 177. streets of a city is very different 8t Poster v. Commissioners, 9 when applied to a country high- Ohio St. 540; McGonnigle v. Ar- way. In the city the improve- thur, 27 Ohio St. 251. ment will benefit and improve the 88 Goodrich v. Winchester etc. property adjacent to and abutting Co., 26 Ind. 119; Turpin v. Eagle upon, the improved street, but will Creek Co., 48 Ind. 45; Stoddard v. not benefit property remote there- Johnson, 75 Ind. 20; Ricketts v. from, while in the country dis- Spraker, 77 Ind. 371. tricts the highway is an advantage S9 Commissioners v. Fallen, 118 to the public at large, and the Ind. 158, 20 N. E. 771. benefit thereof is not confined to *o Kline v. Commissioners, 152 farms through which it may pass. Ind. 321, 51 N. E. 476. It is therefore reasonable to re- then be lawful to provide by ordi- 243. nance for the improvement, the bi Taber v. Grafmiller, 109 Ind. adoption and publication of such 206, 9 N. E. 721. resolution is a condition precedent 52 Emery v. San Francisco Gas. to the exercise of the authority to Co., 28 Cal. 345. pass a valid act, and not merely 53 Whiting v. Townsend, 57 Cal. an irregularity provided for in the 515. curative statute. Welker v. Pot- 54 Cincinnati v. Anderson, 52 ter, 18 Ohio St. 85; Smith v. To- Ohio St. 600, 43 N. E. 1040. ledo, 24 Ohio St. 126; Cincinnati 65 Whiting v. Quackenbush, 54 V. Sherike, 47 Ohio St. 217, 25 N. Cal. 306. E. 169; Waco v. Chamberlain, 288 INITIATOEY PBOCEEDINGS. §§ 344, 345 department should deem necessary ; ^® a street improvement is not invalid because it includes " the necessary bridges, culverts," etc., without specifying what is necessary where it does not appear that anything is necessary beyond the im- provement of the street, and there being no delegation of authority.^'' 344. Where the general provisions of a city charter provide that the city shall have power " by ordinance and not otherwise " to provide for making local improvements, such improvements may yet be ordered by resolution where the specific provisions of such charter on the subject of street im- provements provide for that method."* Where not rendered compulsory by statute, a resolution for a street improvement, passed by the proper board, need not state how such improvement shall be paid for."** Under a street improvement statute which provides that, when certain work is proposed, the council may except from its resolution of intention and order " any of the said work already done upon the street to the ofiicial grade," such ex- ception may be made by language similar to that of the statute, as, where " not already laid," and " where not al- ready so paved." "*'' Resolutions insufficient or invalid. 345. A resolution requiring abutting owners to grade and sod the space between the sidewalk and curb, is void ; "* one to macadamize a street does not authorize a contract for 66 Matter of Eager, 46 N. Y. McDonald v. Connif, 99 Cal. 386, 100. 34 Pae. 71; Williams v. Bergin, 5T Cuming v. Grand Rapids, 46 116 Cal. 56, 47 Pae. 877; Edwards Mich. 150. V. Berlin, 123 Cal. 544, 56 Pae. 68 Buckley v. Taeoma, 9 Wash. 432; Reid v. Clay, 134 Cal. 207, 253, 37 Pae. 441. 66 Pae. 262. 68 a Zeigler v. Chicago, 213 111. 69 Adams v. Shelbyville, 154 Ind. 61, 72 N. E. 719. 467, 49 L. R. A. 797, 77 Am. St. 68 b Bowling v. Hibernia S. & L. Rep. 484, 57 N. E. 114. Soc., 143 Cal. 425, 77 Pae. 141; 19 289 § 345 THE LAW OF SPECIAL ASSESSMENTS. the construction of stone gutters; ^^ nor curbing; ®^ it must in general state specifically the work to be done, or the own- ers will be liable only for the cost of such improvements as are specifically designated in the resolution regularly adopted and published, and not then if the authorized and unauthor- ized portions can not be separated ; ®^ and a resolution which is defective by reason of the omission to specify materials, etc., which are required for the work, is not aided by subse- quent detailed specifications prepared by the engineer;®^ a resolution of a city council " that a permanent grade be, and the same is, hereby established," on a certain street " except where already established," and authorizing a committee to employ an engineer to establish such grade, is not an estab- lishment of the grade, but merely a provision for its future establishment ; ®* and where a charter requires that a street improvement be ordered by resolution of the city council, a resolution declaring the intention of the council to improve the street is not sufficient ; *' one for street improvement works which provides for " suitable drains and inlets at in- tersecting crossings," without specifying the number of drains and inlets, or their size or material, is fatally defec- tive, and no foundation for an assessment ; ** where a resolu- «» Partridge v. Lucas, 99 Cal. 114, 60 Pac. 683, overruling Deady 519, 33 Pac. 1082. v. Townsend, 57 Cal. 298. «i Mason v. Sioux Falls, 2 S. D. «* Blanden v. Port Dodge, 102 640, 39 Am. St. Rep. 802, 51 N. Iowa, 441, 71 N. W. 411. W. 770. 85 Kline v. Tacoma, 11 Wash. In such case the contract was 193, 39 Pac. 453. valid so far as it calls for macad- «« Fay v. Heed, 128 Cal. 357, 60 amizing, and invalid only so far Pac. 927. as it calls for curbing. The con- A resolution of intention to con- tractor can recover for the former struct sewers is insufficient where if it can be separated from the lat- it fails to state the material or size ter and estimated. Beaudry v. of the sewers and manholes, nor Valdez, 32 Cal. 269. the number of branch sewers to be 62 Mason v. Sioux Falls, 2 S. D. constructed to the curb line. Wil- 640, 39 Am. St. Rep. 8C2, 51 N. W. liamson v. Joyce, 140 Cal. 669, 74 770; Schwiesau v. Mahon, 128 Cal. Pac. 290. 114, 60 Pac. 683. As to facts showing sufficiency of 63 Schwiesau v. Mahon, 128 Cal. a resolution of intention to im- 290 IlSriTIATOET PEOOEEDIIfGS. § 346 tion for a specific improvement was passed without a three days' prior publication as required by charter, the resolution and the assessment based thereon is void, and it matters not that there was no paper in which the advertising could be legally done, because the mayor and comptroller failed to designate the papers, as they were required to do.*^ Estimate of cost. 346. It is usual to require a preliminary estimate of the cost of the contemplated improvement, so that interested per- sons may be advised of the probable amount of the tax. In the management of the practical business of a modem munic- ipality, it is a matter of wisdom to ascertain the cost of an improvement before ordering it, but it is unnecessary from a legal point of view Tvhere not required by statute or munici- pal by-law. But when made by statute a condition preced- ent, a strict compliance must be observed, or no jurisdiction to proceed further is acquired.®* In this respect, such esti- mates stand upon the same footing as the petition or resolu- prove a street by reference to other Separate vote on each resolution records, see Dowling v. Hibernia S. unnecessary. & L. Soc, 143 Cal. 425, 77 Pac. Under a charter requiring that 141. the vote on the passage of every 67 In re Smith, 52 N. Y. 526. such resolution shall be taken by Insufficiency of description of yeas and nays and duly entered in work. the journal, etc., a, separate vote Where the charter requires the on each resolution is not necessary. council, in providing for a street Wright v. Forrestal, 65 Wis. 341, pavement, to order it done by reso- 27 N. W. 52 ; Pittelkow v. Mil- lution stating the " kind " of pav- waukee, 94 Wis. 651, 69 N. W. ing to be done, a resolntion for 803; Dougherty v. Porter, 18 Kan. paving the roadway with either 206 ; Reed v. Sexton, 20 Kan. 195. sheet asphalt or brick paving ss Hentig v. Gilmore, 33 Kan. blocks, or bituminous macadam, is 156, 5 Pac. 781 ; Corsioana v. not a compliance with the charter Kerr, 89 Tex. 461, 35 S. W. 794; requirement as to specifying the Davie's Executors v. Galveston, 16 •' kind " of the improvement. Tex. Civ. App. 13, 41 S. W. 145. BlufFton V. Miller, 33 Ind. App. 521, 70 N. E. 989. 291 § 347 THE XAW OF SPECIAL ASSESSMENTS. tion. The more recent decisions upon the validity of the estimates will be found in the appended note.®* Notice — Bequisites of. 347. In all cases where the assessment is not based upon a merely mathematical calculation, or the exact amount is «» When the statute requires as a condition precedent to the con- struction of sewers at the expense of abutting property, " a detailed estimate " of the cost by the city engineer, under oath, and that the taxes shall not exceed the estimated cost of the work, in cash, and the estimates are not fully in detail, are not under oath, and the taxes largely in excess of the real esti- mate of the cost of the work, the taxes are voidable. And where es- timates are made for a stone pave- ment, and a different kind is con- structed, special taxes cannot be levied to pay for the construction of such pavement. Hentig v. Gil- more, 33 Kan. 234, 6 Pac. 304. A charter provision that the board shall estimate the cost of the improvement and report the same to the council before making an assessment therefor, is suffi- ciently complied with by the adop- tion, approval and report by the board of the estimate of the city surveyor. Cuming v. Grand Rap- ids, 46 Mich. 150, 9 N. W. 141. The estimate of the cost should be considered in connection with the ordinance and the specifica- tions on the question as to its be- ing sufficiently specific. MeChes- ney v. Chicago, 152 111. 543, 38 N. E. 767. The commissioners of assessment may include in their estimate of cost of improvement matters not specifically mentioned in the ordi- nance therefor, 3 recorded as a necessary part of the improvement. Delamater v. Chicago, 158 111. 675, 42 N. E. 444. Where the estimating committee has reported the cost of a sewer at a certain sum, and their report has been approved, the levy of a larger sum is without authority and is il- legal. Payne v. S. Springfield, 161 111. 285, 44 N. E. 105. Where the statute requires an engineer's estimate to be made a part of the resolution presented at the public hearing, the assessment is not invalidated by such assess- ment having been made before the adoption of the first resolution. Givins v. Chicago, 186 111. 399, 57 N. E. 1045. Where the statute requires the engineer's itemized estimate to ac- company the first resolution, such requirement being for the infor- mation and protection of property owners, is mandatory. Bickerdike v. Chicago, 203 111. 636, 68 N. E. 161. A resolution reciting that the engineer's estimate of cost was a certain sum does not comply with the statutory requirement that the engineer's itemized estimate of cost shall be made a part of the record of the first resolution. Bickerdike V. Chicago, 203 111. 636, 68 N. E. 161. Where estimates are required be- 292 INITIATOEY PEOCEEDINQS. § 347 fixed directly by the legislature, and the taxing officers exer- cise no discretion as to the amount, notice to those whose property is to be charged, giving them an opportunity to be heard at some stage of the proceedings prior to final judg- ment, as to the question of benefits and damages, is necessary to constitute due process of law, is jurisdictional, and the jurisdiction is not dependent upon there being a requirement as to notice in the statute authorizing the assessment.^" It is an absolute right, not to be evaded under any pretext what- ever, and the fact that if the owner had appeared the tax would have been the same, does not make it legaU^ The fore letting contracts, the provi- sions of law with reference thereto are jurisdictional, and without compliance therewith there can be no basis for a special assessment against adjacent property. Moss V. Fairburg, 66 Neb. 671, 92 N. W. 721. As to local procedure on, see Auditor General v. Chase, 132 Mich. 630, 94 N. W. 178. Under a statute providing a variance shall not affect the valid- ity of the proceedings unless in the opinion of the court it be wilful or substantial, the omission of the signature of the engineer to the estimate of cost does not invalidate the special tax, Zeigler v. Chi- cago, 213 lU. 61, 72 N. E. 719. When estimate sufficiently item- ized, see Herbert v. Chicago, 213 HI. 452, 72 N. E. 1097. Where a charter provides that the street commissioner shall cause to be made an estimate of the whole expense of the contemplated improvement, and of the number of cubic yards of excavating or filling in front of each lot, and to file the same with the city clerk; and also, that notice to lot own- ers to do the work themselves shall be given by advertisement for two weeks, the making and filing of such estimate is a con- dition precedent to the publica- tion of the notice. Myrick v. La- Crosse, 17 Wis. 443. ToMurdock v. Cincinnati, 39 Fed. 891 ; Cook v. Gage Co., 65 Neb. 611; 91 N. W. 559; Davis v. L. S. & M. S. R. Co., 114 Ind. 364, 16 N. E. 639; McEnery v. Sullivan, 125 Ind. 407, 25 N. E. 540; McDonald V. Littlefield, 5 Mack. 574; Sewall V.St. Paul, 20 Minn. 511, Gil. 459; Mayor, etc. v. Seharf, 54 Md. 499; Wilson V. Salem, 24 Or. 504, 34 Pac. 9, 691 ; Kings v. Portland, 38 Or. 402, 55 L. R. A. 812, 63 Pac. 2; Hutcheson v. Storric, 92 Tex. 685, 45 L. R. A. 289, 71 Am. St. Rep. 884, 51 S. W. 848; Hersch- berger v. Pittsburg, 115 Pa. St. 78, 8 Atl. 581; Com'rs v. Harper, 38 111. 103; Shannon v. Omaha (Neb.), 100 N. W. 298. And see Ch. ii, under Notice. Ti " It has been suggested that the order appealed from should be affirmed because even had an oppor- tunity been given to the appellant to appear and be heard before the 293 § 347 THE LAW OF SPECIAL ASSESSMENTS. failure to provide for notice, in a statute, does not render the same void if notice in fact be given ; and in such case the municipality has a broad discretion with reference to the kind of notice, and the manner of giving it.''^ But where the statute requires a notice, or prescribes its form and the mode in which it shall be given, the notice must be given in accordance with such requirements.'^ That it is competent for the legislature to prescribe the form of the notice, how given, and the tribunal before which the hearing may be had, is unquestioned.'* But after notice has been once given in tax was imposed, no different re- sult could have been reached. To this we cannot agree. The consti- tutional guaranty belongs to the individual by right, and not by the mere favor of the legislature or the sufferance of judicial tribunals. It is the duty of the courts to see that this right is not invaded un- der any pretext whatever, when the subject is before them. Its value as a safeguard would speed- ily dwindle away, or, at least, be- come exceedingly precarious, if the privilege to assert it were made to depend upon the belief or opinion of a judge that it would, if as- serted, be available. It is a right of which the citizen cannot be de- prived, and he may appeal to it, whatever others may think as to the result of such an appeal." Ul- man v. Mayor, 72 Md. 587, 11 L. R. A. 224, 20 Atl. 141, 21 Atl. 709. 72 When the only notice to prop- erty owners of the levy of a sewer tax was by the passage of two or- dinances levying the taxes, and the publication of such ordinances and a notice for two days in the of- ficial paper, the ordinances being indefinite as to the notice given by them, and the special notice gave nothing more than a right to the property owners to contest the valuation of their lots, the notice given by the ordinances and special notice might be sufficient to render the tax valid, except for substan- tial reasons; and for such reasons the tax might be voidable. Gil- more V. Hentig, 33 Kan. 156, 5 Pac. 781 ; Wilson v. Salem, 24 Or. 504, 34 Pac. 9, 691. TSMcChesney v. People, 145 111. 614, 34 N. E. 431; Holland v. Peo- ple, 189 111. 348, 59 N. E. 753; Sewall V. St. Paul, 20 Minn. 511, Gil. 459; State v. Otis, 53 Minn. 318, 55 N. W. 143; Overman v. St. Paul, 39 Minn, 120, 39 N. W. 66; State V. Jersey City, 27 N. J. L. 536; White v. Bayonne, 49 N. J. L. 311, 8 Atl. 295. '* Weaver v. Templin, 113 Ind. 298, 14 N. E. 600; Johnson v. Lewis, 115 Ind. 490, 18 N. E. 7. Under a charter requiring that a resolution of intention declaring the intention to improve shall be published before making any street improvement, a publication : " No- tice is hereby given that the com- mon council of the city of P. pro- pose to improve " stated streets in a specified manner, is sufficient. 294 INITIATOEY PEOCEEDINGS. §§ 348, 349 the statutory mode, notice of further proceedings is unneces- sary, all interested persons being chargeable therewith.'^* A want of legal notice to claimants for damages is not available by one having no such claim. ''* 348. Tailure to give notice of assessment, or notice of ap- plication for confirmation of the assessment is jurisdictional, and such omission is not cured by a statutory provision that no error or informality in the assessment proceedings, not af- fecting the substantial justice of the assessment itself, shall vitiate or in any way affect the assessment.^'' Where notice is given of application for the confirmation of an assessment for opening a street between two points, there is no author- ity for making an assessment for opening the streets beyond such points, and if made, it is void.''* The consent of prop- erty owners to the improvement is unnecessary where the law authorizing the assessment gives them a hearing at some stage of the proceedings.''® 349. The determination of a municipality to enter upon a work of local improvement is not invalid for the lack of prior notice of intention so to do to the owners of the prop- erty affected, there being no requirement to that effect in the gift of legislative power to the municipality ; *" but under a charter requiring the lot owner to do the work on the adjoining street before contracts for such work are let, such notice must be given, or the assessment made to pay for the work is void. Nor is such omission cured by a char- ter provision that all directions therein for the proceedings for levying, assessing and collecting the tax or assessment shall be deemed directory only.®^ A charter required that Bank of Columbia v. Portland, 41 'TSewall v. St. Paul, 20 Minn. Or. 1, 67 Pac. 1112. . 511, Gil. 459. 75 Chamberlain v. Cleveland, 34 78 Owen v. Chicago, 53 111. 95. Ohio St. 551; Voigt v. Detroit, '» Jones v. Tonawanda, 158 N. 184 U. S. 115, 46 L. ed. J59, 22 Y. 438, 53 N. E. 280. Sup. Ct. Rep. 337; Affirming S. C. so In re Zborowski, 68 N. Y. 88. 123 Mich. 547, 82 N. W. 253. si Johnson v. Oshkosh, 21 Wis. TBScovill V. Cleveland, 1 Ohio 186. St. 126. Nor can the property be made 295 § 350 THE LAW OF SPECIAL ASSESSMENTS. all work for the city or either of the wards " shall be let by- contract to the lowest bidder, and due notice shall be given of the time and place of letting such contract." Another section provided for the publication of notice to lot owners to do the work within a reasonable time, before the street commissioner should be authorized to let the contract for the work. This section was amended by adding, " and if said work be not done within the time limited in said con- tract, . . . the said commissioner may relet such work without further notice." This was construed to mean al- though " further notice " to the lot owner was dispensed with, the commissioner was still bound to give notice of a reletting of the contract.®^ Where a property owner is en- titled by statute to notice of a nuisance on his property, and an opportunity to do the work himself, the city authorities are without authority to do the work until such notice and opportunity have been given.®* 350. A notice may be a condition precedent to the pass- age of a valid ordinance for the improvement.®* In case of an additional assessment to pay the cost of a public im- provement, the commissioners cannot determine the amount of the assessment, but must again give notice, and refer the matter to the viewers as in the first instance.®^ In Califor- nia, the courts take judicial notice of the streets in San chargeable for work done by the 8* Joyce v. Barron,- 67 Ohio St. contractor not in accordance with 264, 65 N. E. 1001; State v. Perth the plans and specifications to Amboy, 29 N. J. L. 259. which his contract refers, as for a »» Commissioners v. Fuller, 111 sum allowed him by the council by Ind. 410, 12 N. E. 298. way of compromise for work not Appearing, and failing to object. accepted as, nor constituting in Where in a drainage matter a fact a fulfilment of the contract, railroad company, after service of Rork V. Smith et al., 55 Wis. 67, notice, appears and files a remon- 12 N. W. 408. strance challenging the assessment " 82 Mitchell V. Milwaukee, 18 against its right of way, without Wis. 93. making any objection to the suffici- 83 Horbach v. Omaha, 54 Neb. ency of the notice, or the regularity 83, 74 N. W. 434. in filing the petition, such act is a 296 INITIATOKT PKOCEEDINGS. § 350 Trancisco.®® Some courts deny the necessity of notice, and on other grounds than those mentioned in the first part of this section, and some courts have changed front upon the question. The court of last resort in Maryland, in 1880, "was of the opinion that the rights of owners of property fronting the street to be improved, to have a hearing, was indefeasible, and the fact that the tax levied upon them for the work is inconsiderable, as well as justly apportioned, in no degree abridged such right.®^ A little later the court overruled this wise and just opinion, and held that the no- tice to the abutting owners of a street paving proceeding is unnecessary, the imposition of the assessment being an ex- ercise of the taxing power, and not of eminent domain.^* This is another instance of erroneously attributing to spe- cial assessments all the ingredients of a tax. It can make no difference to the owner that his property is taken from him under the taxing power instead of under the power of eminent domain, if it be taken illegally and without due process of law. In its opinion the court say, " We hold it then to be clear, both upon reason and authority, that pro- visions for notice, or giving the right of a hearing, or an appeal to the courts and a jury trial, however wise and proper they may be in point of policy, are not essential to a valid exercise of this branch of the taxing power." ®* waiver of all questions as to the notice. State v. Elizabeth, 31 N. jurisdiction of the court. Pitts- J. L. 547. burgh, etc. K. Co. v. Machler, 158 ss Mayor etc. v. Johns Hopkins Ind. 159, 63 N. E. 210. Hospital, 56 Md. 1. Followed in 86 Brady v. Page, 59 Cal. 52. later cases and afterwards re- s' Mayor, etc. v. Scharf, 54 Md. versed. See next note. 499. 89 It is difBcult to resist the in- Appearance waives notice. ference that the court was uncon- A notice of the meeting of com- sciously somewhat affected by the missioners for " Friday, the 6th very large amount at stake, and a July next,'' was undated; but as very natural and proper desire to the prosecutors appeared at the see that those who had reaped the proper time, and were heard benefit should pay for it. But in through counsel on the merits, a still later case, the same court they cannot complain of want of held that an assessment levied un- 297 i§ 351, 352 THE LAW OF SPECIAL ASSESSMENTS. 351. Sidewalks, being usually held to be ordered made under the police power, it is unnecessary to give other notice to those interested than the annual entry in the tax roll.®* No notice is required of an assessment for the privilege of using a public sewer, when the charge is fixed by ordinance, it being a question of local policy whether property owners may use a public sewer without extra charge.®^ So, too, where the levy of the assessment is a mere mathematical computation, full notice being provided for as to all prior proceedings, and the notice of the assessment would be with- out value to the owner. ®^ 352. Other instances are given in the note, both of cases where a notice is held unnecessary, and where it is held nec- essary.®* It is hardly necessary to state that the greater der an ordinance making no pro- vision for a notice to or hearing of the interested property owners, is null and void as a taking of prop- erty without due process of law, in violation of the Federal Consti- tution and that of the state of Maryland. Ulman v. Mayor, etc., 72 Md. 587, 11 L. R. A. 224, 20 Atl. 141, 21 Atl. 709; thus reaf- firming the decision in Scharf's case and reversing the case pre- viously cited, as well as those of Moale, 61 Md. 224, and that of Al- berger, 64 Md. 1, 20 Atl. 988. 90 Hennepin Co. v. Bartleson, 37 Minn. 343, 34 N. W. 222; Hen- nessy v. Douglas Co., 99 Wis. 129, 74 N. W. 983. 91 Carson v. Brockleton Sewer- age Com., 182 U. S. 398, 45 L. ed. 1151, 21 Sup. Ct. Rep. 860. 92 Gillette v. Denver, 21 Fed. 822. Levying iy measurement. 93 Where the city authorities have nothing to do in levying a tax but to measure how much each lot or part of lot fronted on the street, without inquiring how far hack from the street the rights of the several owners extended, and to apportion the cost accordingly, no notice or opportunity to be heard is necessary to make the tax valid, it being a mere mathematical cal- culation. Amery v. Keokuk, 72 Iowa, 701, 30 N. W. 780. When notice without advantage. Where it appears that notice to a taxpayer of the intended assess- ment and levy of a sewer tax would have been without advan- tage to him, such want of notice will not avail as a defense against the collection of the tax. Dittoe v Davenport, 74 Iowa, 66, 36 N. W. 895. Petition — when notice unneces- 298 Notice to a property owner of a proposed improvement of a street abutting on his land is not neces- sary, when the statutes and city charter authorize the city coun- cil to undertake such improve- INITIATORY PBOCEEDINGS. § 353 number of cases, and both reason and authority, hold that a valid notice is a condition precedent to a valid assessment. Sufficiency of. 353. It is a legislative function to decide the kind of ments upon the filing of a petition therefor by a majority of the abutting owners. Jones v. Seattle, 19 Wash. 669, 53 Pac. 1105. When otimer not entitled to. A land owner is not entitled to notice of an ordinance providing for condemnation of his land for a sewer right of way, but only to no- tice of the proceedings to condemn. Joplin etc. Co. v. Joplin, 124 Mo. 129, 27 S. W. 406. When notice unnecessary. Where land is condemned for a public street, and the benefits as- sessed are equal to the damages awarded, so that nothing is owing the land owner for the land taken, the publication of a notice that the money in payment therefor was in the hands of the city treasurer, was unnecessary. Fairchild v. St. Paul, 46 Minn. 540, 49 N. W. 325. No notice is required to be given to the owner of property in a sewer district of the passage of an ordi- nance establishing the district, nor of the assessment of a benefit against his property before the is- suing of the special tax bill, nor is such notice necessary to the va- lidity of the special tax. Heman v. Allen, 156 Mo. 534, 57 S. W. 559. Notice of enforcing lien. In a proceeding by a city to en- force the lien of a special tax bill for the cost of street paving, issued against an abutting owner, notice to such owner is not required. Such proceeding calls for no in- quiry into the weight of evidence, nor for anything in the nature of a, judicial examination, and noth- ing could be changed by hearing the taxpayer. No right of his is therefore invaded. Barber A. P. Co. V. French,. 158 Mo. 534, 54 L. E. A. 492, 58 S. W. 934. Notice of determination. Where the statute so provides, the publication of a, notice of de- termination to improve a street is not a condition precedent to the authority to make the assessment in cases where damages, conse- quent on the improvement, are in- cluded in the assessment as a part of the cost thereof. Finnell v. Kates, 19 Ohio St. 405. Notice not absolutely essential. Galveston v. Heard, 54 Tex. 429; Adams v. Fisher, 63 Tex. 651. Contra. The author has collected here a few out of the many cases holding notice necessary, which present facts a little out of the usual routine. Worh must be described. In order to get jurisdiction to do street work, the proper authorities must describe the work to be done in the preliminary notice. Brady v. King, 53 Cal. 44. Amendment to charter. An amendment to a city char- ter which provides for ascertaining damages for regrading of a street. 299 § 353 THE LAW OF SPECIAL ASSESSMENTS. and their payment through a special assessment, and which pro- vides no notice to the parties to be assessed, is wholly inoperative. Sligh V. Grand Rapids, 84 Mich. 497, 47 N. W. 1093. Effect of omission to give pre- scribed notice. Where a property owner is en- titled to a notice of an assessment and none is given him, or if a hear- ing has been denied him, the as- sessment is void. St. Louis v. Rankin, 96 Mo. 497, 9 S. W. 910. Filling land — Mailing assessment Bill. Notice to owners of lands pro- posed to be filled, of a meeting of the council to consider the matter, is sufBcient notice; and a bill of the amount assessed sent by mail to the owner nine days after the assessment and received by him, is a good notice of assessment and a sufficient compliance with the stat- utory requirement that such notice shall be forthwith served. Law- rence V. Webster, 167 Mass. 513, 46 N. E. 123. Must correspond loith proceedings. Where published notices for do- ing street work do not correspond with the ordinances and resolu- tions, the defect is fatal. Galla- gher V. Garland, 126 Iowa, 206, 101 N. W. 867. Water Rates. Where under a city charter water rates are imposed upon lots within municipal limits, which are apportioned without giving to the owner or occupant an opportunity for a hearing, the act is unconsti- tutional. Remsen v. Wheeler, 105 N. Y. 573, 12 K E. 564; In re Trustees Union College, 129 N. Y. 308, 129 N. E. 460. 'Notice of payment of assessment. Under the Galveston charter no- tice, after a' valid assessment, must be given to the property owner that the assesment is due, and of the time within which payable, or no levy and sale of the property subject to the assessment can be legally made. Adams v. Fisher, 63 Tex. 651. A jurisdictional necessity. Under the Nebraska statute, a metropolitan city council has no jurisdiction to determine ■and fix the benefits to be levied as special taxes until it has given six days notice of its sitting. Leavitt v. Bell, 55 Neb. 57, 75 N. W. 524; Equitable Trust Co. v. O'Brien, 55 Neb. 735, 76 N. W. 417; Wakeley V. Omaha, 58 Neb. 245, 78 N. W. 511; Medland v. Connell, 57 Neb. 10, 77 N. W. 437. Nor to pass an ordinance levy- ing special taxes until it has first determined the amount of special taxes to be assessed against the real estate as benefits. Leavitt v. Bell, 55 Neb. 57, 75 N. W. 524; Medland v. Connell, 57 Neb. 10, 77 N. W. 437. County ditch. A special assessment against a resident owner for the cost of a county ditch affecting his lands, under a proceeding of which he had neither notice nor knowledge, is void. B. O. & C. R. Co. v. Wagner, 43 Ohio St. 75, 1. N. E. 91. No hearing on benefits. An assessment without an op- portunity for a hearing on the question of benefits is a nullity, and not void merely as to so much as may be shown to be in excess of the benefits derived. Hutcheson v. Storrie, 92 Tex. 685. 300 INITIATOEY PEOCEEDINGS. § 353 hearing that is proper.®* The manner of giving notice, where not prescribed by statute, its form, or the length of time, or personal service, are not of material importance if reasonable opportunity be in fact given of the time, place, and tribunal for a hearing.*® The validity of a statutory provision as to notice depends not so much upon the time or mode of notice directed, but upon the fact that it is directed, and furnishes an effective opportunity to be heard,®® and the question of the sufficiency of the notice cannot be raised for the first time on an appeal.®^ "Where the charter pro- vides for a hearing, it is an excess of authority for the council to limit the right to objections made in writing.®* Notices to bidders for public work should contain the sub- stantial requisites of the specifications, so that therefrom the bidders can obtain proper information to permit of their making an intelligent bid,®® and in proceedings for open- ing a street or alley, the notices should describe in the pre- cise language of the ordinance, the land to be taken, giv- ing the numbers of the lots and the portions to be taken. ^ Where a statute provides that the assessment in a street opening case shall be made in the manner provided by char- ter, and the latter makes provision for due notice of the assessment, the statute and charter will be construed to- gether, and the objection that notice is not provided by the former is untenable ; ^ a notice of application for judgment against property assessed for private drains will not au- 84 Wilson V. State, 42 N. J. L. f Young v. People, 155 111. 247, 612 ; Davies v. Los Angeles, 86 Cal. 40 N". E. 604. 37, 24 Pae. 771. ss state v. Jersey City, 25 N. J. sBGilmore v. Hentig, 33 Kan. L. 309. 156, 5 Pac. 781; Derby v. W. Chi. 9»Wilkins v. Detroit, 46 Mich. Park Com'rs, 154 111. 213, 40 N. E. 120, 8 N. W. 701, 9 N. W. 427. 438; King v. Portland, 38 Or. 402, i Hemingway v. Chicago, 60 111. 55 L. E. A. 812, 63 Pac. 2; Nor- 324. folk V. Young, 97 Va. 728, 47 L. E. 2 Grand Eapids etc. Co. v. Grand A. 574, 34 S. E. 886. Eapids, 92 Mich. 564, 52 N. W. 96 In re Amsterdam, 126 N. Y. 1028. 158, 27 N. E. 272. 301 §§ 354, 355 THE LAW OF SPECIAL ASSESSMENTS. thorize a judgment against the same lands for an assessment to grade, pave, and curb a street.^ 354. It is essential to the validity of an assessment for benefits that the land owners have notice of the meeting of the commissioners by whom the assessment is made and an opportunity of being heard before them. It is not sufficient that they have notice of the hearing before the court on an application for the confirmation of the report of the com- Notices held sufficient. 355. It has been held that the required notice of the meeting of the assessing board need not describe the prop- erty to be assessed, or the assessment district ; ^ a general notice addressed to " all persons interested," or to " all whom it may concern," in the absence of any specific re- quirement as to the mode of address ; ® a notice of presenta- tion of a petition which has been held by the court suffi- cient in taking action on the petition, is equally so on col- lateral attack ; '' where nothing appears to the contrary, the presumption will be indulged in that the location of the improvement provided by ordinance is in the city, although the notice does not so state ; ® one referring to information on file, without setting out the materials to be used or the character of the proposed work, where the charter requires the survey, diagram and estimate thereof to be filed in the 3 Waller V. Chicago, 53 111. 88. « Ottawa v. Macy, 20 111. 413; * State V. Boad Com'rs, 41 N. J. Hennessy v. Douglas Co., 99 Wis. L, 83. 129, 74 N. W. 983. B State V. District Court, 33 ' Hackett v. State, 113 Ind. 532, Minn. 235, 22 N. W. 625, 632. IS N. E. 799. With all deference, it is sug- 8 Wheeler v. People, 153 111. gested that this decision is not up- 480, 39 N. E. 123 ; Stanton v. City, held by the weight of either reason 154 111. 24, 39 N. E. 987 ; Chi. W. or of authority. Without a de- Div. R. Co. v. People, 154 111. 256, scription of the assessment district, 40 N. E. 342 ; Sargent v. Evanston, it is impossible for a property 154 111. 268, 40 N. E. 440. owner to know whether he is a party in interest, or not. 302 INITIATOKT PKOCEEDINGS. §§ 356, 357 office of the city clerk; ® an act authorizing a reclamation district to begin an action to determine the validity of an assessment, and making the judgment conclusive as to par- ties thereto, constitutes a proper notice; ^^ where a street has been regularly ordered paved, and plans for water and gas connections filed and approved, under a law authoriz- ing a special assessment to pay therefor, and all steps nec- essary to charge the abutting property had been taken by the council, the public letting of the contract to the lowest xesponsible bidder is sufficient notice to fix the cost as to each lot.-*^ 356. An allegation in a complaint that " notice of the assessment and of the hearing and considering of objections to the assessment roll was given defendant personally," is sufficient, as against a demurrer, to show that actual notice was given defendant ; ^^ provisions that the board of public works shall make an assessment of damages, then give notice that same will be open at their office for twenty days; that upon a day named they would hear all objections, and all parties interested, reduce to writing all objections with evi- dence supporting them, and then have power to review, modify and correct said assessment; and that thereupon a complete and final assessment would be made, afford suffi- cient notice and opportunity to present evidence and be heard.-'* 357. Where a city charter provides that its board of public works, before ordering a street improved at expense of abutting owners, shall give such owners notice to do the work within a reasonable time, and if not done within such time, a contract for doing it would be let, it is the duty of the board to determine, in the first instance, what is a rea- » Felker v. New Whatcom, 16 u Gleason v. Waukesha Co., 103 Wash. 178, 47 Pae. 505; State v. Wis. 225, 79 N. W. 249. Pillsbury, 82 Minn. 359, 85 N. W. 12 Tumwater v. Fix, 15 Wash. 175. 324, 46 Pae. 388. 10 Reclamation District v. Mc- is State v. Oshkosh, 84 Wis. 548, CuUah, 124 Cal. 175, 56 Pae. 887. 54 N. W. 1095. 303 § 358 THE LAW OF SPECIAL ASSESSMENTS. sonable time. It is probable that when attacked collatei>- ally, such determination is, in the absence of fraud, con- clusive.^* It is not necessary to the validity of a city char- ter conferring the right to improve a street that it should provide for notice of the time and place of apportioning the cost of the improvement, or that it shall be so provided in the charter at all; it is sufficient if reasonable notice be in fact given. ^^ 358. An ordinance or notice of an improvement is suf- ficient where it describes generally the kind of improvement proposed to be made, and refers for a specific description to maps, plans, specifications or other details thereof on file in a public office and accessible to interested parties, for by. such reference they become part of the ordinance or notice, and then the notice does specify " with convenient cer- tainty," the kind of improvement to be made ; ^® and where a charter authorizes the construction of sidewalks by a city, the cost to be assessed against abutting property, but provid- ing, that the owners should, for the period of fifteen days, have the privilege of doing the work themselves, notice to the lot owner of the passage of the ordinance or resolution providing for the improvement is necessary in order to give a lien for the cost of such improvement ; but actual notice is not required, and the passage and publication of the ordi- nance is sufficient constructive notice; ^^ and as a general rule the publication of an ordinance will be deemed con- structive notice of anything therein contained. Thus, where neither the city charter, nor the ordinance passed thereunder, in a street improvement proceeding, provides for notice to the property owners affected by the assessment, but the ordinance provides that the assessment shall be collected by the enforcement of the lien in the same manner as mort- i*Fass V. Seehawer, 60 Wis. le Clinton v. Portland, 26 Ore. 525, 19 N. W. 533. 410, 38 Pae. 407. 15 Shannon v. Portland, 38 Ore. it C. & 0. E. Co. v. MuUins, 94 382, 62 Pac. 50. Ky. 355, 22 S. W. 558. 304 IWITIATOEY PROCEEDINGS. § 358 gages are foreclosed, which can only be after due notice, the property owner is afforded an opportunity to question the validity of the assessment and the ordinance is valid. ^® 18 Garvin v. Dauasman, 114 Ind. 429, 5 Am. St. Eep. 637, 16 N. E. 82G. For a case as to the sufficiency of notice of sewerage work to be done on several streets, and posted only on one, see White v. Harris, 116 Cal. 470, 48 Pae. 382. The following are additional cases holding the notice sufficient. JTo necessity of naming owners. Under a charter requiring thirty days' notice by publication requir- ing property owners within the as- sessment district to notify the council of their selection of pav- ing material, it is unnecessary to name the owners, Medland v. Lin- ton, 60 Neb. 250, 82 N. W. 866; Portsmouth Sav. Bank v. Omaha, 67 Neb. 50, 93 N. W. 231. Tv>o weeks publication. A charter provision that a special assessment roll have two weekly publications in the official paper, and that two weeks after the first publication be given for the filing of objections. Auditor General v. Hoflfman, 132 Mich. 198, 93 N. W. 259. "Notice of fifteen days. A notice of fifteen days, as pro- vided by charter, by publication in the official paper. Jones v. Seattle, 19 Wash. 669, 53 Pae. 1105. Publication of benefits. Publication of assessment of benefits, if charter provide. Person- al service unnecessary. Kansas City V. Ward, 134 Mo. 172, 35 S. W. 600. OrdAnance for street opening. The publication of an ordinanca for opening a street. Curry v. Mt. Sterling, 15 111. 320. Storm Sewer. Resolution authorizing a street improvement and stating it is necessary to construct a storm water sewer, is sufficient notice vhat such sewer is to be constructed as a part of the improvement, and for the purpose of properly con- structing and protecting the high- way. Gates V. Grand Bapids, 134 Mich. 96, 95 N. W. 998. Failure to receive notice. Under a statute requiring spe- cial assessment notices to be sent to the persons who paid taxes on the respective parcels the last preceding year, the assessment is not void because the real owner did not receive such notice. Peo- ple V. 111. Cent. E. Co., 213 111. 367, 72 N. E. 1069. Must he published before fixing tax district. But the statutory notice must be published before the limits of the district within which property will be specially benefited by a local improvement can be fixed. State v. District Court, 90 Minn. 294, 96 N. W. 737. As to general sufficiency of no- tice, altliough not conforming to ordinance, see Aberdeen v. Lucas, 37 Wash. 190, 79 Pae. 632. As to owners of back-lying lands, under Indiana statute, see Voris v. Pittsburg etc. Co., 163 Ind. 599, 70 N. E. 249. 20 305 369 THE LAW OF SPECIAL ASSESSMENTS. Notices held insufficient. 359. A notice of application for judgment of sale is fa- tally defective if it fail to sufficiently describe the property sought to be sold ; ^* a notice for proposals for street work which does not state as nearly as practicable, the extent of the work, when to be done, and the time when proposals are to be acted upon, is insufficient ; ^^ where commissioners, after making an assessment, were required to publish a no- tice of the time and place when and where parties can be heard, but in the notice fixing such time and place stated that " all persons feeling themselves aggrieved must present their objections in writing," the commissioners exceeded their jurisdiction; ^^ where the return of the proper officer is to be made at least six days before the one fixed for a hearing, no notice which is required to be included in said return will be valid if made later than six clear days be- Variance between date and first publication. Under a statute fixing the time within which objections may be filed as twenty days after the first publication is completed, a notice dated Aug. 6, requiring such ob- jections to be filed within twenty days from date, is not rendered in- valid by the fact that it was first published on Aug. 8, it being a mere irregularity, not going to the jurisdiction of the council, or pre- venting plaintiff from filing his ob- jection within the time given by statute. Owens v. Marion, 127 Iowa, 469, 103 N. W. 381. When either verbal or written. Under a statute providing for ten day's notice to the owner if found or known, of intent to fore- close a special assessment lien, such notice may be either verbal or written. Ross v. Van Watta, 164 Ind. 557, 74 N. E. 10. Actual notice is sufficient. Any statutory notice to the property owner, which will enable him to appear before some duly constituted tribunal, where he may be heard with reference to the fair- ness and validity of the assessment before it becomes a fixed and es- tablished charge upon his property, is a sufiicient notice. Citizens, etc. Trust Co. v. Chicago, 215 111. 174, 74 N. E. 115. Held sufficient. See State v. District Court (Minn.), 103 N. W. 744; State v. District Court (Minn.), 104 N. W. 553. Sufficiency as to time. • Pierson v. People, 204 III. 456, 68 N. E. 383. 19 Nichols V. People, 165 111. 502, 46 ]S. E. 237. 20 Windsor v. Des Moines, 101 Iowa, 343, 70 N. W. 214. 21 Merritt v. Port Chester, 71 N. Y. 309, 27 Am. Rep. 47. 306 IWITIATOET PKOCEEDINGS. § 359 fore the day of hearing ; *^ and where the ordinance requires thirty days' notice of the requirement for a new sidewalk, and only seventeen days' notice is given, the lot owner is not liable if the work be done by the city, he failing to comply with the notice ; ^* a public notice for bids for a street im- provement which fails to specify the extent of the work, or when it is to be done, or the proposals acted upon, is fatally defective ; ^* a statute by which the right to contest the va- lidity of special assessments for street improvements is barred as soon as improvement bonds are issued, which may be within forty days after the assessment of benefits is com- pleted, vnthout actual notice to land owners, and before work on the improvement is actually begun, is invalid, the time being too short for constructive notice ; ^® and mere notice fixing the time for hearing objections to an assessment is not sufficient, but the persons having the power to hear and de- termine the objections should be in attendance ; ** a notice requiring objections to be filed " by Eebruary 19 " is suf- ficient to sustain a default entered on that day, as the phrase " until the 19th " did not extend beyond the last moment on the 18th ;^'' but where a notice for a street improvement given under a charter requirement " specifying with convenient certainty the street or part of street to be improved and the kind of improvement to be made," was published so as to read that the contemplated plank sidewalk should be laid " where the same may be required," its insufficiency is plain. ^® 22 Powers' Appeal, 29 Mich. 504. 27 Burhans v. Norwood Park, 138 23 Washington v. Mayor, 1 Swan, 111. 147, 27 N. E. 1088. 177. 28 Hawthorne v. E. Portland, 13 24 Polk V. McCartney, 104 Iowa, Or. 271, 10 Pac. 342. 567, 73 N. W. 1067. When too late. 25 Hayes v. Douglas Co., 92 Wis. A notice of hearing before com- 429, 31 L. E. A. 213, 435 Am. St. missioners to assess benefits after Rep. 926, 65 N. W. 482. the completion of the improvement 26 Nashville v. Weiser, 54 111. does not suffice. Sears v. Atlantic 245. City (N. J. ) , 60 Atl. 1093 ; Wilkin- 307 360 THE LAW OF SPECIAL ASSESSMENTS. — — What record must show. 360. The giving of the requisite notice must affirm- atively appear upon the face of the record, or the assess- ment will be void.^^ On application for judgment against delinquent lands where the record on its face shows that proper notice was given, the owner cannot impeach the judg- ment by showing that in fact he did not receive notice, and proof of notice of making the assessment must be made, or son V. Trenton, 36 N. J. L. 499; Bowne v. Logan, 43 N. J. L. 421. Notice lorongly directed. A statute requiring notice of hearing on an assessment for a public improvement is not com- plied with by publishing a notice to persons desiring to bid on the work. Daly V. Gubbins (Ind.),73 N. E. 833. Time too short. Where a board, required to give notice of its sitting six days prior thereto, convenes on the 28th in pursuance of a notice published on the 23d, it is without jurisdic- tion to proceed. Leavitt v. Bell, 55 Neb. 57, 75 N. W. 524. Uncertainty in description. Notice to a person owning two lots on one street, to improve his lot on such street, without stat- ing which, is void for uncertainty. Simmons v. Gardiner, 6 R. I. 255. The following are more recent cases along the same line. Failure to give two week^ notice. Where a full two weeks' notice of the meeting of the council as a special assessment board is not giv- en as required by statute the coun- cil is without jurisdiction to pro- ceed in the premises, and its acts are not aided by a general statute providing that no tax shall be held invalid by reason of any ir- regularity, omission, etc., that does not prejudice the property rights of the person whose property is taxed. Auditor General v. Calkins, 136 Mich. 1, 98 N. W. 742. Invalid promise by officials. Proceedings for a new assess- ment, the statutory notice having been given, are not subject to ar- rest by an objecting owner because of the non-performance of a prom- ise made him by certain officials that he should have personal no- tice, as public policy forbids such a rule. Alexander v. Tacoma, 35 Wash. 366, 77 Pac. 686. City official not chargeable with. Because the city attorney is the owner of lots sought to be assessed for a local improvement, he is not thereby chargeable with knowledge of notice of the proceedings of the city's various departments relative to their actions in the matter. Shannon v. Omaha (Neb.), 100 N. W. 298. 29 Goodwillie v. Lake View, 137 111. 51, 27 N. E. 15; Waller v. Chicago, 53 111. 88; Van Sant v. Portland, 6 Or. 395; Poilou v. Rutherford, 65 N. J. L. 538, 47 Atl. 439; Bensinger v. Dist. of Col., 6 Mackey, 285. But see Walker v. District of Col., 6 Mackey, 352. 308 INITIATORY PEOCEEDINGS. §§ 361, 362 the judgment is void.*" Under the provisions of a charter conferring the power to provide by ordinance for the con- struction of sidevyalks on streets at the expense of abutting owners where there is no provision for constructive notice, it is essential that the proceedings of the council show that actual notice was given, or the ordinance will be void.*^ ' How given — Actual and constnictive. 361. It is for the legislature to prescribe the method of giving notice, and an assessment is not invalid because of omission to give personal notice.*^ The notice may be either actual or constructive. Actual notice is such notice as is required to be given in some particular way to each owner. Constructive notice is such as results from some public act required to be done, and in a particular manner, and of which the owners of the property upon which the burdens are imposed are required to take notice.** 362. It has been held that in the absence of charter pro- visions as to notice, the city may by ordinance or other- wise provide for such notice as may give the property own- ers an opportimity for a hearing,** but it would seem to be the better rule that in such cases the power of the city coun- cil to prescribe the kind of notice is confined to a method which will give actual notice.*® Where personal service of 30 Clark v. People, 146 111. 348, Owens v. Marion, 127 Iowa, 469, 35 N. E. 60; People v. Ryan, 156 103 N. W. 381. 111. 620, 41 N. E. 180; Honore v. 32 In re De Peyster, 80 N. Y. 565. Chicago, 62 111. 305. 33 C. & 0. E. Co. v. Mullins, 94 31 State V. Vineland, 60 N. J. L. Ky. 355, 22 S. W. 558. 264, 37 Atl. 625. 34 Gatch v. Des Moines, 63 Iowa Sufficiency of record as to posting. 718, 18 N. W. 310. Where a statute relative to 35 State v. Jersey City, 24 N. J. special assessments requires a cer- L. 662; Hudson Co. v. State, 24 N. tain notice to be given by posting J. L. 718; State v. Morristown, 34 handbills, the record of a special N. J. L. 445; Camden v. Mulford, assessment resolution which recites 26 N. J. L. 49 ; Boice v. Plainfield, that handbills were posted as re- 38 N. J. L. 95 ; Stretch v. Hoboken, quired by law is sufficient evidence 47 N. J. L. 268; Traction Co. v. of a compliance with the statute. Board of Works, 56 N. J. L. 431, 309 §§ 363, 364 THE LAW OF SPECIAL ASSESSMENTS. notice on residents is required by charter, such service, within the meaning of the statute, will appear from the fact of the delivery of a copy of the notice to an agent duly authorized to receive it, or from circumstances justifying an inference of the actual delivery of a copy to the person to be affected thereby, and service by leaving a copy of the notice at the residence, with a member of the family, is insuffi- cient,*® although actual personal notice is sufficient in a case where the charter provides for service by publication in an official newspaper.*^ But no assessment can be levied by a board of health under a statute providing for the giving of a specific notice, which has not been given, although the per- son had actual knowledge of the doing of the work in ques- tion.*® And where the statutory requirements as to notice are somewhat obscure, a ten day notice by personal service is sufficient.*® 363. Where a statute requires a notice to be posted in a public office for five full days, it must be posted before the opening of the office on the first day and remain posted until the close of the office on the fifth day,*" and when the re- quirement is that it be posted in a certain place for five days, posting for only three days affects a substantial right of parties interested, and renders all subsequent proceedings void.*^ 364. In a direct proceeding to review a confirmation judgment, a recital therein that the legal requirements as to posting notices have been complied vdth, will not prevail over affirmative proof in the record to the contrary. Thus, a requirement that notices be posted in four different public 29 Atl. 163, 57 N. J. L. 710; State sa Grace v. Newton, 135 Mass. V. Vineland, 60 N. J. L. 264, 37 490. Atl. 625; State v. South Amboy, 62 so Auburn v. Paul, 84 Me. 212, N. J. L. 197, 40 Atl. 637. 24 Atl. 817. 08 Wilson V. Trenton, 53 N. J. L. *o Himmelmann v. Cahn, 49 Cal. 645, 16 L. R. A. 200, 23 Atl. 278. 285; Brooks v. Satterlee, 49 Cal! sTTumwater v. Pix, 15 Wash. 289. 324, 46 Pae. 388. *i Hewes v. Eeis, 40 Cal. 255. 310 INITIATORY PBOCEEDINGS. §§ 365, 366 places is not complied with by posting three of such notices on " the tree at the JST. E. cor. of 0. and F. place." « A judgment awarding plaintiff damages to his lot caused by street improvements will not be disturbed because of a lack of proper service of notice on other property owners also affected by the ordinance authorizing the improvement, as their grievances will have to be redressed on their own ap- plication.** 365. The aflSdavit of mailing notices in a special assess- ment proceeding is a part of the process, and must be suffi- cient on its face to show compliance with statutory require- ments.** Where the statute does not fix the time for mail- ing, a reasonable time therefor would not be less than ten days.*' The affidavit of mailing a notice which otherwise conforms to the statute is not vitiated by inserting therein a copy of the notice which fails to give the year in which re- turnable, as such copy may be treated as surplusage.*® And an affidavit of mailing and posting notices purporting to be made by one person and sworn to by another, is insuffi- cient ; *^ but such affidavit is similar to an officer's return on process, and may be amended to conform to the facts, even after judgment.** 366. The fact that one tenant in common received no statutory notice of the special taxation of the property is not a basis for an objection by his co-tenants, where they may pay their proportions of the tax and have their interests re- leased.*® Failure of the affidavit made by commissioners to show the date of mailing notices of special assessment to 42 White V. Chicago, 188 111. Co. v. People, 155 111. 299, 40 N. 392, 58 N. E. 917. E. 599. 43 Kansas City v. Block, 175 *^ Moll v. CUcago, 194 111. 28, 61 Mo. 433, 74 S. W. 993. N. E. 1012. 44 Sheridan v. Chicago, 175 111. 48 Michael v. Mattoon, 172 111. 421, 51 N. E. 898. 394, 50 N. E. 155; Hinkel v. Mat- 45 Perry v. People, 155 111. 307, toon, 170 111. 316, 48 N. E. 908. 40 N. E. 468. *' Birket v. Peoria, 185 111. 369, 46 Schemick v. Chicago, 151 111. 57 N. E. 30. 336, 37 N. E. 888; West C. S. R. 311 § 367 THE LAW OB" SPECIAL ASSESSMENTS. property owners, is not available as a defense in collateral proceeding by the collector to obtain judgment against prop- erty for the delinquent assessment.^" If sufficient notice of the first meeting of a board to consider an assessment be given, the board may adjourn such meeting from time to time, and parties desiring to present objections must attend at such adjourned meeting without further notice. '^^ But where the time fixed for a hearing was 9.15 P. M., and no- tice thereof given to objectors, who attended, and before that hour, and without notice to the objectors, the meeting was adjourned to the next evening, the council lost jurisdiction in the matter, or to make a valid assessment, without a new notice. ^^ The publication of the time and place of hearing objections to the report of the commissioners must conform strictly to the requirements of the charter."' 367. The legislature has the constitutional power to au- thorize proceedings against property upon which there is a municipal lien, in cases where the owner is a non-resident, and a statute providing for notice by posting and publica- tion is constitutional.^* A notice of assessment, published in a daily newspaper, as required by ordinance, is suffi- cient.'® And where the ordinances of a city provide for giving notice of an assessment by publication in any news- paper of general circulation published in the city, such no- tice so given is sufficient, and personal notice is unneces- sary,"® and where the statute requires the making of an order BO Dickey v. Koehersperger, 160 os State v. Bayonne, 49 TT. J. L. 111. 633, 43 N. E. 606; McChesney 311, 8 Atl. 295. V. People, 145 111. 614, 34 N. E. o* Philadelphia v. Jenkins, 162 431 and 148 111. 221, 35 N. E. 739, Pa. St. 451, 29 Atl. 794; and see explained. In these cases, no point Arnold v. Fort Dodge, 111 Iowa was made or considered that the 152, 82 N. W. 495. judgment of confirmation could not 55 Williams v. Detroit, 2 Mich, be collaterally attacked. 560. Bi McChesney v. Chicago, 201 HI. !>« Lyman v. Plummer, 75 Iowa 344, 66 N. E. 217. 353, 39 N. W. 527. Cf. note 35. 52 Gill V. Oakland, 124 Cal. 335, 57 Pac. 150. 312 miTIATORY PKOCEEDINGS. § 368 prescribing the notice of time and place of hearing, and that such notice be served by publication, the publication of the entire order instead of the formal notice is a substantial compliance with the statute.^'' The same rigidity of com- pliance with the legislative will is required in the publica- tion of notices that is required in any other portion of the process of acquiring jurisdiction.** The official paper. 368. It is usual to have some one or more newspapers designated as the official papers of the municipality for the B7 Muskego V. Drainage Com'rs, 78 Wis. 40, 47 N. W. 11. Under a statute requiring notices of street work to be conspicuously posted along the line of said con- templated work at not more than 100 feet apart, but not less than three in all, an affidavit that such notices were " conspicuously posted along the line of H street, between S street and N street, notices not more than 100 feet apart, and six notices in all," is sufficient, H street being the line of the con- templated improvement, and 560 feet long, between the two cross streets. Dowling v. Hibernia S. & L. Society, 143 Cal. 425, 77 Pac. 141. 58 In a proceeding to improve a street if the proper authorities do not make an order for the publi- cation of the notice of the award of the contract, pursuant to stat- ute, all the proceedings subsequent to the award including the assess- ment are void. Eeis v. Graflf, 51 Cal. 96. An unauthorized publication of notice of intention to do street work, made in a paper other than that designated by the council for that purpose, is in effect no publi- cation, and jurisdiction is not ac- quired thereby. Chase v. Los An- geles, 122 Cal. 540, 55 Pac. 414. Where the original notice for bids was properly advertised and posted, any subsequent order to re- advertise for bids designating any newspaper must be considered as referred to the original order for its terms. Ellis v. Witmer, 134 Cal. 249, 66 Pac. 301. Where a charter gave to the mayor and council power to grade streets and alleys, and to lay a special tax therefor, they to de- clare their intention by resolution to be published four consecutive weeks, and then the resident own- ers were to have twenty days in which to protest, the grading of an alley without observing these pro- visions was without jurisdiction, and the certificates issued to pay for the work were void. McLauren v. Grand Forks, 6 Dak. 397, 43 N. W. 710. Where a petition mentions a party defendant as a known owner, and describes his property, a pub- lication as to unhnown owners is not a. sufficient service. Dickey v. Chicago, 152 111. 468, 38 N. E. 932. 313 § 368 THE LAW OF SPECIAL ASSESSMENTS. publication of notices, ordinances, resolutions, proposals, and other matters in which the property owner is usually more or less interested, and to which he can refer for the desired information. This, however, is not a universal requirement, Where a charter provides for the publication of only such ordinances as are penal in their nature, it ia the duty of property owners to take notice of the acts of the coun- cil, relating to public matters, and to inform themselves by what authority improvements are being made. Elkhart v. Wickwire, 121 Ind. 331, 22 N. E. 342. Where a sidewalk ordinance pro- vides for personal service of notice on known property owners and also by publication, " which publication shall be constructive notice to all non-resident property owners inter- ested," a resident who has been served cannot complain that no publication of the notice was made. Chariton v. HoUiday, 60 Iowa, 391, 14 N. W. 775. Where a general ordinance pro- vides that notices of proposals for doing street work shall be adver- tised in three newspapers, the ad- vertising in only one newspaper in- validates an assessment levied to pay for the work. Mayor, etc. v. Johnson, 62 Md. 225. Where it appears that there was a defect in the publication of a notice provided for in the city charter, and it does not appear that all the land owners were per- sonally served, the entire proceed- ings are invalid, although the par- ty making the objection was him- self personally served. Brush v. Detroit, 32 Mich. 43. Publication of resolution. Omission to publish the resolu- tion on report of a committee of either board of the council recom- mending the repaving of a street, as required by a city charter, be- fore the final vote of that body, is fatal, and invalidates an assess- ment based thereoon. In re Little, 60 N. y. 343; In re Anderson, 60 N. Y. 457. Under a requirement that notice of the meeting of the assessment board be published for at least six days, and notice of meeting on the 13th- was published from the 6th to the 12th of the month, inclusive, it is no objection that one of the days fell on Sunday. Portsmouth Sav. Bank v. Omaha, 67 Neb. 50, 93 N. W. 231. A notice published in the ofiScial papers for ten days before the day fixed for the alteration or confir- mation of the assessment by the common council is all the notice necessary, as it gives to any per- son assessed an opportunity to be- heard. People v. Mayor, etc., of Brooklyn, 4 N. Y. 19, 55 Am. Dec. 266. Where a statute provides for publication of a notice to non-resi- dent land owners of a pending pro- ceeding, it is sufficient if such published notice be addressed tO' " the non-resident owners of the following lands, to-wit " — de- scribing the lands. Miller v. Gra- ham, 17 Ohio St. 1. A notice of a street improvement required to be published in a cer- tain paper, is not affected by a. 314 INITIATOK.T PEOCBBDINGS. § 369 and where a statute requires notice to be given by publica- tion in the official newspaper, but the municipality is not authorized by law to designate one, the requirements of the statute will be met by personal service of such notice upon the parties affected.®* In case the common council has under- taken to select an official paper, under the charter, in which to publish official notices, and acts irregularly, yet such paper so chosen will be the official paper de facto, and no- tices published therein will be held valid in collateral pro- ceedings.*" 369. Under a statute requiring all proceedings of the council to be published for three days in the papers to be designated by the mayor and comptroller, the clerk is with- out authority to publish in any other than papers so desig- nated, although no designation has been made. A publica- tion according to the statute being a condition precedent to any right of the council to act, and it appearing that no legal designation of papers was made, an assessment made under a resolution passed by the council is illegal.®^ And where a newspaper is designated as an official paper for one year, the employment ceases at the expiration of the year, and there is no presumption that it was continued without a new designation, or that a new designation was made, or that the proper authorities failed in their duty to make some change in the name of the paper A notice to a lot owner to do during the course of such publica- certain street work within a rea- tion, where the volume and number sonable time, or it will be let by thereof were not changed, and the contract, is a mere favor, and a publication was continued for the law requiring notice to be given requisite time thereafter. Clinton v. him by publication is valid. Fass Portland, 26 Or. 410, 38 Pac. 407. v. Seehawer, 60 Wis. 625, 19 N. Under a statute requiring street W. 533. improvement notices to be headed B9Tumwater v. Pix, 15 Wash. "Notice of Street Work" in let- 324, 46 Pac. 388. ters not less than an inch in eo Wright v. Forrestal, 65 Wis. length, a notice in three-quarter 341, 27 N. W. 52. inch type heading is insufficient to ei In re Burmeister, 76 N. Y. confer jurisdiction. Bank of Co- 174. lumbia v. Portland, 41 Or. 1, 67 Pac. 1112. 315 § 370 THE LAW OF SPECIAL ASSESSMENTS. designation as required by law.®^ But where a paper is once properly designated as the official paper, no time during which it shall so remain being fixed, such designation is an employment by the city, and in the absence of any evidence that the service was declined, or the designation revoked or superseded, the presumption is that the employment con- tinues.^* Publication of. 370. The requirements of the statutes and ordinances of the many states and cities are naturally extremely varied, and many cases have arisen in which compliance with the statute or ordinance has been inquired into, and many inter- esting questions decided. The authority of the legislature to provide directly as to the length of notice by publication, or to delegate its power in that respect to cities, is no longer questioned, although the courts occasionally interfere if such notice be unreasonably short. Like all steps in proceedings in invitum, the record should affirmatively show proof of the necessary publication, and no presumption that the notice was in fact actually given will be indulged in,®* although where plaintiff admitted that notice was published in two papers, it was held to be presumed that the publication was made the requisite number of times, notwithstanding the absence of any evidence of the fact.®^ This is apparently a relaxation of the general rule. As a rule, the question of the sufficiency of the publication, as well as proof thereof, is one of statutory construction, as the cases collated in the appended note will illustrate.® , 66 62 In re Burke, 62 N. Y. 244. ee The italicized words at the 83 Petition of Astor, 50 N". Y. beginning of each case cited in this 363; In re Phillips, 60 N. Y. 16; note indicate the exact words of see In re Folsom, 56 N. Y. 60. the statute or ordinance the eon- 8* Wilson V. Seattle, 2 Wash. struction of which is determined in 543, 27 Pac. 474. that case. 66 Arnold v. Fort Dodge, 111 "By six days' publication" Iowa, 152, 82 N. W. 495. means a publication for six dif- 316 IHITIATOET PEOCEEDUiTGS. § 370 ferent days. Scammon v. Chicago, 40 111. 146. A notice published for six days, one of which is Sun- day is invalid. Sewall v. St. Paul, 20 Minn. 511, Gil. 459. " At least ten days before appli- cation." One publication is suf- ficient. Royal Ins. Co. v. S. Park Com'rs, 175 111. 491, 51 N. E. 558. "At least ten days' notice hy puhlication in one or more news- papers." A single publication in a newspaper selected for that pur- pose is sufficient. P. W. & B. R. Co. V. Shipley, 72 Md. 88, 19 Atl. 1 " for at least six days priot thereto " is not complied with bj one publication six days before tht meeting, but requires a publica- tion each day for six days prior to meeting. Scammon v. Chicago, 40 111. 146. Whitaker v. Beach, 12 Kan. 492; Leavitt v. Bell, 55 Neb. 57, 75 N. W. 524; Washing- ton V. Bassett, 15 R. I. 563, 2 Am. St. Eep. 929, 10 Atl. 625. " For ten days." Where the no- tice was not published on two days out of the ten (not being Sun days), there being no issue that day, the notice was insufficient and void. Haskell v. Bartlett, 34 Cal. 281. "For four weeks before," re- quires a publication once a week, or every seven days during that period, and a publication on May 20, May 27, June 4 and June 12 does not comply with the require- ment. Williams v. Supervisors, 58 Cal. 237. " Two successive weeks." Such requirement is met by a publica- tion on the 7th and 14th of the month, as it is not contemplated that it shall be for " two full weeks " when made in a weekly paper. Eicketts v. Hyde, 85 111. 110. "Five successive days." A pub- lication from July I to July 7 inclusive, Sunday July 3, and Monday, July 4, being dies non juridicus, and not counted. Eas- mussen v. People, 155 111. 70, 39 N. E. 606; MeChesney v. Peo- ple, 145 111. 614, 34 N. E. 431. "To be published daily {Sunr days excepted), in a daily news- paper for five days." A publica- tion beginning Wednesday, March 4th, and ending Sunday, March 8th, is insufficient. The last pub- lication should have been on the 9th. Alameda, etc., Co. v. Huff, 57 Cal. 331. "Five days, Sundays and non- judicial days excepted." A publi- cation for four days, exclusive of the last day, which is Sunday, is invalid. People v. McCain, 50 Cal. 210. 8i(o days — one Sunday. In pub- lishing a notice required by law to be published for six days, and one of the publication days occurs on Sunday, the publication on that day cannot be counted, it be- ing at common law dies non ju- ridicus. Scammon v. Chicago, 40 111. 146. This decision is contrary to the general current of authority, and is no longer maintained in the same court. Ten days — Sundays. Under a statute providing for ten days' notice in special assess- ment proceedings, the Sundays intervening between the day of posting and the first day of the term should be counted. Gordon 317 § 371 THE LAW OF SPECIAL ASSESSMENTS. Proof of publication. 371. The fact that the notice has been, duly published is usually established by the verified statement of the pub- cessive numbers of the official paper, and was published five suc- cessive week days, omitting an intervening Sunday edition, such publication was sufficient, the Sunday issue, although numbered V. People, 154 111. 664, 39 N. E. 560. Sundays are included in the count of ten days in a notice re- garding street work, which is re- quired to be published. Taylor v. Palmer, 31 Cal. 240. Filing objections one day before meeting — Sunday. Where a charter requires objec- tions to be filed at least one day prior to the meeting of the coun- cil, at which confirmation of an assessment will be asked for, it will be construed as intending that a day shall intervene be- tween the last publication of the notice of such application and the meeting of the council, and if the last publication of the notice be on Saturday, and the council con- firmed the assessment on the fol- lowing Monday, the confirmation was void. Burton v. Chicago, 53 111. 87. See, in this connection: Wright V. Forrestal, 65 Wis. 341, 27 N. W. 52; Pittelkow v. Mil- waukee, 94 Wis. 651, 69 N. W. 803; Pittelkow v. Herman, 94 Wis. 666, 69 N. W. 805; Friedrich V. Milwaukee, 114 Wis. 304, 90 N. W. 174. "As often as the same is is- sued " does not require publica- tion in an extra issue of half size, published upon a holiday on ac- count of a strike. Perine v. Lewis, 128 Cal. 236, 60 Pac. 422, 772. Five successive days. Where a notice is required by charter to be published in five sue- consecutively with the week day issue, was shown by the evidence to be furnished and sold under different terms. Voght v. Buffalo, 133 N. Y. 463, 31 N. E. 340. Consecutive days. The question as to what was sufficient to satisfy the require- ments of a statute providing for a publication for " consecutive " days was carefully considered by the Supreme Court of Oregon. The notice in question was re- quired by the charter to be pub- lished for ten consecutive days, and was published in each suc- cessive issue of the designated paper from May 4 to May 15 in- clusive. During that time two Sundays intervened, on which days the paper was not issued, and of course there was no publi- cation on those days, and the inquiry presented was, whether there was a publication for ten successive days, within the mean- ing of the charter. The court said that, construed within itself, they would answer, "No"; but because of the enactment of a statute to cure defective publica- tions of notice, and to declare what was a sufficient publication thereof, which provided that, where a notice is required by any general or special law to be pub- 318 INITIATOUT PEO'CEEDINGS. § 3Y1 liahed in a daily paper for suc- cessive or consecutive days, it shall be a full compliance, within the meaning of the law, if such notice is, or should have been, published on the week days only, this was held to be curative of the objections that the provision of the charter had not been com- plied with, and it was sufficient. Bank of Columbia v. Portland, 41 Or. 1, 67 Pae. 1112. Compliance with 10 day notice. An advertisement for bids to be put in June' 23, published in the official paper on the 12th, and continued in each successive daily issue of such paper until the 22nd, is a full compliance with the charter requirement for a ten day notice. Carpenter v. St. Paul, 23 Minn. 232. Paper must he published in Eng- lish. Where by statute any publica- tion is directed to be in a news- paper, a. paper published in the English language is to be vmder- stood, there being no provision to the contrary, and the statute is not complied with by publication in a paper printed in any other language. Cincinnati v. Bickett, 26 Ohio St. 49. Three days' notice — Council hav- ing two boards. Where, in a city having two boards in its common council, its charter provides that no vote shall be taken in either board upon the passage of a resolution or ordi- nance for a public improvement or laying an assessment, until af- ter notice shall be published at least three days, each board, sepa- rate and independent of the other. must cause notice of the introduc- tion of a resolution into its own body to be published for three days before final action thereon; a publication by one board is in- sufficient. In re De Pierris, 82 N. Y. 243. PuWcation in supplement. A statutory requirement that a notice shall be published in a newspaper is sufficiently complied with by the publication in a sheet of the paper denominated a " sup- plement" which is circulated co- extensively with the balance of the paper. Lent v. Tillson, 72 Cal. 404, 14 Pac. 71. Siiety days' notice. Under a statute requiring that sixty days' notice of application for the passage of a street im- provement ordinance shall be giv- en in two daily newspapers of the city, it is not necessary that such notice be published any specified nimiber of times; it merely re- quires that it shall be given, the sufficiency of the publicity of such application being left to the determination of the council. Cen- tral Savings Banks v. Mayor, etc., 71 Md. 515, 18 Atl. 809, 20 Atl. 283. When wMling, insufficient. Where a charter requires notice of a street opening proceeding to be given non-residents by publica- tion, the mailing of a copy of such notice to the address of a non-resident is insufficient. Wil- son V. Trenton, 53 N. J. L. 645, 16 L. R. A. 200, 23 Atl. 278. Prior publication. When prior publication a mere irregularity. See Moore v. Mayor, 73 N. Y. 238, 29 Am. Rep. 134. 819 371 THE lAW OF SPECIAL ASSESSMENTS. Usher or printer of the paper, but may be made by parol.*^ Where the notice is published as required in the paper which is recognized as the official paper, the fact may be estab- lished by the certificate of the publisher, and it is unnec- essary to product the record of the appointment of such paper as the official paper.** If the certificate be fatally de- fective, extrinsic evidence may be admitted to prove that notice was in fact duly given.®® The seal of a corporation publishing the official paper need not be affixed to the certifi- Error — republication. Where in the publication of the first notice, there was an error which made the publication erro- neous, and the city clerk then made a proper publication naming a different day for the meeting of the council, and that body met in accordance with the notice and awarded the contract, the pro- ceedings were not invalidated, in the absence of any evidence, that any one was misled or failed to bid on account of the mistake, and jurisdiction was not lost, the first publication being treated as of no validity and the proceedings having been begun de novo. Gil- more V. Utica, 131 N. Y. 26, 29 N. E. 841. Five times, instead of five succes- sive days. Judgment of sale for a delin- quent special assessment cannot be rendered where the judgment of confirmation was rendered on de- fault, and the certificate of pub- lication for such confirmation shows the notice was published " five times," instead of " on five successive days." Chandler v. Peo- ple, 161 111. 41, 43 N. B. 590. Publication in three daily papers. Where the statute requires cer- tain notices to be published in three daily papers in the city, this requirement is met by publishing such notices in two dailies printed in English, and one daily printed in German, these being all the daily papers printed in such city. John V. Connell (Neb.), 98 N. W. 457. Two iceehs' notice. A statutory requirement that two weeks' notice of the time and place of meeting of the special as- sessment board is not complied with by a publication once a week for two weeks, unless the time for hearing was two weeks after the first publication. Auditor Gener- al V. Calkins, 136 Mich. 1, 98 N. W. 742. When Sunday included in 20 day limit, although last day of publication. See Denver v. Lon- doner, 33 Colo. 104, 80 Pac. 117. Laws relating to notice by pub- lication, construed, and necessity of legal notice affirmed. Hawes v. Fliegler, 87 Minn. 319, 92 N. W. 223. 67Lingle v. Chicago, 172 111. 170, 50 N. E. 192. 68 Rich V. Chicago, 59 111. 286. «9 Rue V. Chicago, 66 111. 256. 320 INITIATORY PROCEEDINGS. §§ 372, 373 1 cate of publication.^" The certificate must show that the necessary requirements as to publication have been com- plied with, or it is insufficient to give the authorities juris- diction to proceed. It is insufficient where it gives the date of the first, and not of the last publication, under a require- ment that the notice be 'published six days consecutively, ex- cept Sundays and holidays,''^ or if signed by one who did not become the publisher of the paper until after the time of the publication of the notice.''^ Whether or not the certifi- cate is signed or certified by the printer or publisher of the newspaper in which it was claimed to have been published, is open to proof.''* 372. Where the certificate of publication of notice did not state that it was published a certain number of days, " exclusive of Sundays and holidays," but certified it had been published for ten days consecutively, beginning at a certain date mentioned, it was deemed sufficient, as, from the language used, the court could ascertain the date of the first and last publications.''* 373. In an affidavit stating that a certain notice was published " four weeks successively, commencing with the number of said paper published Dec. 10, 1887, and ending with the paper published Dec. 3, 1887," the last date should manifestly be Dec. 31, and the affidavit be treated as amended accordingly, or the error disregarded.''® And under a statute which requires a publication for " five suc- cessive days," a certificate that it " has been published five times," giving the first and last days of publication, is fa- tally defective, and confers no jurisdiction to proceed.''® 70 Hertig v. People, 159 111. 237, ts Armstrong v. Chicago, 61 111. 50 Am. St. Rep. 162, 42 N. E. 352. 879. '* Griffin v. Chicago, 57 111. 317; 71 Rich V. Chicago, 59 111. 286; Smith v. Chicago, 57 111. 497. Allen V. Chicago, 57 111. 264; Rue TsMuskego v. Drainage Com'rs, V. Chicago, 57 HI. 435. 78 Wis. 40, 47 N. W. 11. 72 Armstrong v. Chicago, 61 111. 76 Evans v. People, 139 111. 552, 352. 28 N. E. 1111; Toberg v. Chicago, 21 321 ' § 374 THE LAW OF SPECIAL ASSESSMEN'TS. So, too, is a certificate dated Feb. 8tli, stating that the first publication was on Eeb. 5th, and the last on 'Feb. 10th, it being impossible to certify on the 8th that the notice was published on the 9th and 10th of the same monthJ'' But where the certificate gives the dates of the first and last pub- lication as seven days apart, such certificate is not defective as showing a publication for five days, and therefore not suc- cessive ones, but sufficiently shows the publication was for seven consecutive days.'^* Waiver of. 374. Like all other statutory provisions which are de- signed to protect the interests of the property owner, the re- quirements as to notice may be waived by the interested party, and in some eases his actions may be such that he will be conclusively presmned to have waived notice. All objections to the sufficiency of a notice are waived by a gen- 164 m. 572, 45 N. E. 1010; Casey V. People, 165 III. 49, 46 N. E. 7. TiMcChesney v. People, 145 111. 614, 34 N". E. 431. 78 Perry v. People, 155 HI. 307, 40 N. E. 468. Omission of proof of date of notice. The failure to state in the cer- tificate of the publication of the notice of the meeting of commis- sioners to make the assessment, the date of the last paper contain- ing such notice, or anything from which it can be inferred, will pre- vent a valid judgment. Brown v. Chicago, 62 111. 106; Brown v. Chicago, 62 111. 289; Marsh v. Chicago, 62 111. 115; Andrews v. Chicago, 57 HI. 239. Failure to receive notice. Full compliance with the stat- ute as to notice gives the court the necessary jurisdiction over prop- erty to subject it to the payment c^ an assessment. And a special assessment for constructing a sewer is not made invalid because of the failure of the real owner to receive notice, when it was sent to the person who paid the taxes the preceding year in accordance with statutory requirements. Peo- ple v. m. C. K. Co., 213 111. 367, 72 N. E. 1069. Objection to proof — when too late. When objectors urge that notice of the public hearing by the board of public improvements is not in compliance with the statutes, but offer no proof thereon until after the case is closed, the offer is properly rejected. Betts v. Naper- ville, 214 111. 380. 73 N. E. 752. 322 I1TITIAT0B.Y PBOCEEDINGS. § 375 eral appearance,''® or appearing and filing objections,^" or urging general objections to the merits of the special assess- ment certificate ; *^ and such an appearance in an applica- tion for judgment of sale is a waiver of all defects in the notice of such application.^^ One who is assessed without notice and afterwards appears before an appellate tribunal having power to return the assessment for the correction of errors, and fails to object to such want of notice, will be deemed to have waived the same.** And if the owner of land which has been assessed for benefits fails to make his objection to the confirmation of the assessment before the proper authorities, he will be deemed to have waived his rights in that regard.®* An objection that a notice is de- fective is waived by appearance of parties and a failure to make specific objection on that ground.*^ 375. Where the statute provides for constructive notice by mail, a compliance with the statute is sufficient.®® And an appearance at the time and place designated, will be a waiver of objections to the formality of the notice.®^ A non- resident owner who does not appear after notice waives his right to obtain a review of the constitutionality of a statute limiting the right of protesting against the proceedings to 7»Gilkerson v. Scott, 76 111. McManus v. People, 183 111. 391, 509; People v. Sherman, 83 111. 55 N. E. 886; Fiske v. People, 188 165; White v. Allen, 149 111. 626, 111. 206, 52 L. R. A. 291, 58 N. 37 N. E. 96; Walters v. Lake, E. 985. 129 111. 23, 21 N. E. 556; Nieh- ss state v. Jersey City, 41 N. J. olas V. People, 165 III. 502, 46 N. L..489. E. 237; Bradford v. Pontiac, 165 84 Le Moyne v. W. Chicago Park 111. 6X2, 46 N. E. 794; State v. Com'rs, 116 111. 41, 4 N. E. 498, Elizabeth, 31 N. J. L. 547. 6 N. E. 48. 80 1. C. R. Co. V. People, 170 »5Bass v. People, 203 111. 206, m. 224, 48 N. E. 215. 67 N. E. 806. 81 Hintze v. Elgin, 186 111. 251, 88 state v. Elizabeth, 42 N. J. L. 67 N. E. 856; Walker v. Aurora, 56; Wilson v. State, 42 N. J. L. 140 111. 402, 29 N. E. 741. 612. 82 Zeigler v. People, 164 111. 531, st State v. Elizabeth, 42 N. J. 45 N. E. 965; McChesney v. Peo- L. 56. pie, 178 111. 542, 53 N. E. 356; 323 §§ 376, 377 THE LAW OF SPECIAL ASSESSMENTS. resident owners,** and any one who has had ample oppor- tunity to present to the council his objections to a special as- sessment, is held to have waived all irregularities.*® 376. A legal defect in the notice given of the filing of a commissioner's report is not cured or waived by the ap- pearance of a party who objects to the legality of the no- tice.*" And it is no waiver of the statutory requirement for a notice of time and place of hearing be given, that a meet- ing was held to hear objections to a proposed assessment, and that a party appeared and objected to all proceedings.** "Where the act of giving notice in the manner prescribed is a condition precedent to the acquirement of jurisdiction over the subject-matter, and the improvement could not lawfully be made without it, the filing of a remonstrance against the improvement is not a waiver of the compliance on the part of the council with the charter requirements.*^ But if a waiver be relied upon, it must be pleaded.'** Computation of time. 377. Where an act is to be performed within a specified period, after a day named, the rule of computation is to ex- clude that day, and include the day named for the perform- ance.** Under a charter provision requiring every resolu- 88 Field V. Barber Asphalt Pav- ite, and the city relies upon a ing Co., 117 Fed. 925. waiver of this notice, it must be soMcBride v. Chicago, 22 111. pleaded in order to be considered 577; Ottawa v. C. R. I. & P. R. by the court. Eddy v. Omaha Co., 25 111. 43. (Neb.), 101 N. W. 25. »« State V. Bayonne, 51 N. J. L. In the absence of proof to the 428, 17 Atl. 971. contrary, it is the presumption »i State V. Perth Amboy, 29 N. that owners of land in a drainage J. L. 259. district were served with notice of »2 Bank of Columbia v. Port- the action of the board, as re- land, 41 Or. 1, 67 Pac. 1112. quired by statute, and that they As to facts constituting a waiv- appeared at the time and place er, see Philadelphia v. Schofield stated; and that no objections 166 Pa. St. 389, 31 Atl. 119. having been filed, they would be Where a notice required to be deemed waived. People v. Chap- given by the city authorities for man, 127 111. 387, 19 N. E. 872. 30 days is a jurisdictional requis- es Bowman v. Wood, 41 111. 203, 824: INITIATOET PEOCEBDIlirGS, § 378 tion for street work to lie over " at least four weeks after its introduction," a resolution introduced on Monday might properly be acted upon the fourth Monday following.®* The court which announced this decision afterwards criti- cized its correctness, and disapproved of the reasoning, but followed it on the principle of stare decisis.^^ The decision is not in accordance with the general rule governing such matters. Definitions. 378. Many terms used in special assessment proceedings have been defined by the courts that have had the considera- tion of such proceedings, and they will be found alphabet- ically arranged in the accompanying note.*® In some cases. 94 Wright V. rorrestal, 65 Wis. 341, 27 N. W. 52. »s Pittelkow V. Milwaukee, 94 Wis. 651, 69 N. W. 803; Pittel- kow V. Herman, 94 Wis. 666, 69 N. W. 805; Friedrich v. Milwau- kee, 114 Wis. 304, 90 N. W. 174; Ward V. Walters, 63 Wis. 44, 22 N. W. 844; Dougherty v. Porter, 18 Kan. 206; Reed v. Sexton, 20 Kan. 195. Anderson v. Shelbyville, 154 Ind. 467, 49 L. E. A. 797, 77 Am. St. E«p. 484, 57 N. E. 114; An- derson's Law Diet., Bouvier's Law Diet. 96 Assessment, The adjusting of the shares of a contribution by several towards a common beneficial object accord- ing to the benefit received. Between — See To. Boukvard^See Street. Concrete. The meaning of the term, used in connection with street improve- ments, is well understood, and courts will take judicial notice of its meaning. Gage v. Chicago, 201 111. 93, 66 N. E. 374. Corporate Authorities. This term, as used in the Illi- nois Constitution, means those municipal officers who are either elected directly by the population sought to be taxed by them, or ap- pointed in some mode to which they have given their assent. Har- ward V. St. Clair, etc.. Drainage Co., 51 111. 130; Hessler v. Drain- age Com'rs, 53 111. 105; Gage v. Graham, 57 111. 144; Wetherell v. Devine, 116 111. 631, 6 N. E. 24; Snell V. Chicago, 133 111. 413, 8 L. R. A. 858, 24 N. E. 532; Givins v. Chicago, 188 111. 348, 58 N. E. 912. The West Chicago Park Com- missioners are " corporate author- ities" within the meaning of Section 9, Article 9 of the Illi- nois constitution, and as such are properly clothed by statute with power to make local improvements by special assessment. W. Chi. Prk. Com'rs v. Sweet, 167 111. 325 § 378 THE LAW OF SPECIAL ASSESSMENTS. it is inexact to state that the word or term is " defined " ; but by excluding certain elements, and comparing with oth- ers, the meaning is accurately gained. 326, 47 N. B. 728; Fan- v. W. Chi. Prk. Com'rs, 167 111. 355, 46 N. E. 893. Park commissioners may be con- stituted by statute a quasi muni- cipal corporation, with power to levy and assess taxes and con- demn property within their dis- trict. W. Chicago Park Com'rs v. W. U. Tel. Co., 103 111. 33. For. Where by statute a notice is to be given " for at least sis days prior " to a certain time, the word " for " therein is construed as meaning " during," and the whole phrase construed as though it read that notice of the sitting must be given at least during the six days immediately prior to th« fixed date. Shannon v. Omaha (Neb.), 100 N. W. 298. Frontage of Lot. Where the boundary lines of a corner lot extend along one of its two abutting streets a materially greater distance than along the other, a presumption arises that it fronts upon the latter street. Toledo V. Sheill, 53 Ohio St. 447, 30 L. R. A. 598, 42 N. E. 323. Frontage on Street. Where both a dwelling house and a, business house are erected separately on a corner lot, the former fronting on the breadth- wise street, and the latter on the lengthwise street, so much of the lot as the latter building occupies, or is clearly used as appurtenant to it, should be held to front on the street which it faces. Toledo V. Sheill, 53 Ohio St. 447, 30 L. R. A. 598, 42 N. E. 323. General Improvement — see Local Improvement. Highway Commissioners. This term does not include municipal authorities of cities, ex- empting them from a certain con- stitutional provision. Campau v. Detroit, 14 Mich. 276. Keep in Repair — see MamtOMi. Local Improvement. Is a public improvement which, by reason of its being confined to a locality, enhances the value of adjacent property, as distin- guished from benefits diffused by it throughout the municipality. As applied to a street, it signifies the actual or presumptive better- ment of the street, and involves the idea of permanency. Chicago v. Blair, 149 111. 310, 24 L. R. A. 412, 36 N. E. 829; I. C. R. Co. V. Decatur, 154 111. 173, 38 N. E. 626. In a, plant for electric light- ing, the power house and gener- ators are improvements of general utility, but the poles, wires and lamps may constitute a local im- provement. Ewart V. Western Springs, 180 111. 318, 54 N. E. 478. Lot. Is synonymous with " tract " or "parcel." State v. Robert P. Lewis Co., 72 Minn. 87, 42 L. R. A. 639, 75 N. W. 108. Macadamiise. The covering of a street by the process introduced by Macadam, consisting of the use of small 326 IISriTIATOEY PKOCEEBINGS. § 378 stones of a uniform size, consoli- dated and leveled by heavy rollers. It is entirely distinct from the construction of rock gutters by laying flat stones even on their upper surface, and filling the in- terstices with clean, hard rock, finely broken and screened. Part- ridge V. Lucas, 99 Cal. 519, 33 Pac. 1082. Maintain. Is synonymous with the term "Keep in repair," as used in amended Sec. 31, Art. IV, Illinois Constitution. McChesney v. Hyde Park, 151 111. 634, 37 N. B. 858. Oeoupied. As used in the tax law of Mich- igan, does not signify the same as " seated," or " surveyed," as used in the tax laws of some of the states. Hill v. Warrell, 87 Mich. 135, 49 N. W. 479. Ovmers. As used in the statute requiring a petition to be signed by the owners of a majority of abutting property, means owners of the fee of such property. Merritt v. Kewanee, 175 HI. 537, 51 N. E. 867. Party Aggrieved. See In re Gantz, 85 N. Y. 536. Puhlie Improvement — See Local Improvement. Belaying. Under the Wisconsin Statute means the relaying of some part of the existing pavement, in the ordinary course of repairs, and not the entire repaving of the street. Adams v. Beloit, 105 Wis. 363, 47 L. E. A. 441, 81 N. W. 869. Resident Freeholders. Within the meaning of a char- ter providing that after the con- firmation of an original resolution for the street improvement, the same shall be conclusive on all persons, unless within 10 days (2. of all the resident free-hold- ers upon the street) remonstrate against it, means resident free- holders upon the street and not simply residents of the city own- ing property on the street. Kirk- land V. Indianapolis, 142 Ind. 123, 41 N. B. 374. Repaving — See Street. Road — See Street. Rock Gutters — See Macadamize. Special Benefits. The increase in the market value caused by the improvement. Fahnestoek v. Peoria, 171 111. 454, 49 N. B. 496. street A " street " includes sidewalks and gutters, and " paving " in- cludes " flagging," and the work of setting curb and gutter stones, and flagging the sidewalk of a street, are included in the phrase " repaving any street." In re Bur- meister, 76 N. Y. 174. The word " street " is a, generic one, and embraces sidewalks, and under authority to improve streets, a municipality may improve side- walks. Taber v. Grafmiller, 109 Ind. 206, 9 N. E. 721. When used in an act conferring power on park commissioners to levy assessments for improving a " street or streets," it is broad enough to include a " boulevard " where the context does not show a more restricted meaning. The word " road," in legal acceptation, is the same as " public highway." A " street " is a road in a city 327 § 378 THE LAW OF SPECIAL ASSESSMENTS. or village. Heiple v. E. Portland, 13 Or. 97, 8 Pac. 907. Ta4c certificate. A certificate issued on a sale of land for nonpayment of an as- sessment of benefits for a street improvement is a " tax certificate," within the meaning of Sec. 1210h. Eev. Stats., Wisconsin. Pratt v. Milwaukee, 93 Wis. 658, 68 N. W. 392. To. A charter provided that dam- ages incurred in extending a street shall be paid by the real estate fronting on either side of the ex- tension, and of the original street, to a point to be fixed by the com- mon council, and also by the real estate fronting on the cross streets within a hundred feet. Under this provision, an assessment was or- dered for the extension of a street "from a street southerly to R. street," but the assessment actual- ly made included the property on the north line of R. street. This was improperly included, and vitiated the entire assessment. Schumacker v. Toberman, 56 Cal. 508. Unoccupied. And " vacant " are words of the same import, and unoccupied premises are vacant premises, meaning that there is no one in the actual possession, exercising any acts of control over the prem- ises, or any part thereof. Hill v. Warrell, 87 Mich. 135, 49 N. W. 479. 328 CHAPTER VII. OF THE PEOCEEMNGS NECESSARY TO ACQUIRE JTTRISI>rCTION THE ORDINANCE. Necessity for, 379-381. Adoption — Presumption — Rec- ords, 382-383. Requisites to validity, 384-385. Construction of, 386. EflFeet of repeal of, 387. Must be reasonable, 388. Reference to plans, etc., on file, 389. Omission to state location of im- provement, 390. Must be substantially complied with — Variance, 391-392. Embracing more than one im- provement, 393. Validity — In general, 394-402. Sufficiency of description, 403. Grade ordinances, 404. Paving ordinances, 405-407. Curb ordinances, 408. Sidewalk ordinances, 409. Waterworks ordinances, 410. Sewer ordinances, 411-414. Invalidity — In' general, 415-422. Invalid grade ordinances, 423. Invalid paving ordinances, 424. Invalid curb ordinances, 425. Invalid sidewalk ordinances, 426. Invalid waterworks ordinances, 427. Invalid sewer ordinances, 428- 429. Delegation of power, 430-431. Evidence, and burden of proof, 432. When " may " means " must," 433. Publication of, 434. Ifecessity for. 379. That the determination of the local authorities to make a public improvement and pay for the same in whole or in part by a special assessment on the property benefited thereby, must be expressed in some permanent form, is ap- parent. In cities, it is the legislative branch of the local government that is invested with the determination of the necessity for the improvement, and how it shall be paid for. This determination is usually expressed by ordinance, although where the city council is authorized by charter to do certain things " by ordinances, resolutions, by-laws, rules or regulations," any one of the stated forms of procedure 329 § 380 THE LAW OF SPECIAL ASSESSMENTS. may be resorted to in order to express its determination, if sucli procedure be made to appear upon the records in a per- manent ■written form.^ An ordinance, being the occasion of more deliberation, as well as a measure of greater dignity, is more in accordance with the importance of the proceedings than a mere resolution, and it is certainly not open to the objections that surround a resolution. In some states it is held unqualifiedly that a valid and sufficient ordinance lies at the basis of every special assessment proceeding where land is to be taken, or a public improvement made,^ without which the entire proceedings are rendered invalid, and the court is without jurisdiction to award judgment of confirma- tion.^ It has been held that a city may, unless prohibited by constitution or statute, prescribe by ordinance the means by which it may acquire jurisdiction over a particular sub- ject* 380. The legal enactment of the ordinance is a condi- tion precedent, and without it no work can be done or ex- pense incurred which can be charged upon property to be afterwards assessed,"* nor will an ordinance ratifying and confirming the former acts so far as possible, cure the de- 1 Green Bay v. Brauns, 50 Wis. Hornaday, 99 Iowa, 507, 68 N. W. 204, 6 N. W. 503. 812. See, however, Nevin v. Roacli, s Jacksonville R. Co. v. Jackson- 86 Ky. 492, 5 S. W. 546, that it ville, 114 111. 562, 2 N. E. 478; is not essential to its validity that Lindsay v. Chicago, 115 111. 120, 3 an ordinance be spread upon the N. E. 443; American Hide & record. Leather Co. v. Chicago, 203 III. 2 Jacksonville R. Co. v. Jackson- 451, 67 N. E. 979. ville, 114 111. 562, 2 N. E. 478; lives v. Irey, 51 Neb. 136, 70 Lindsay v. Chicago, 115 111. 120, N. W. 961. 3 N. E. 443 ; People v. Hyde Park, s Preeport St. R. Co. v. Free- 117 m. 462, 6 N. E. 33; St. John port, 151 111. 451, 38 N. E. 137; V. East St. Louis, 136 111. 207, 27 Thaler v. West Chj. Park Com'rs, N. E. 543; Alton v. Middleton'a 174 111. 211, 52 N. E. 116. Heirs, 158 HI. 442, 41 N. E. 926; "A city council has no right to Paxton V. Bogardus, 201 111. 628, make an improvement, and then, 66 N. E. 853; American Hide & after the improvement is made. Leather Co. v. Chicago, 203 111. pass an ordinance providing for 451, 67 N. E. 979; McManus v. the making of the improvement. 330 THE ORDINANCE. § 380 fects in the case of a special assessment,® although it may sustain the levy of a special tax.^ It is clear that a valid assessment cannot be made under an invalid law or ordi- nance, and its validity is to be tested, not by what has been done under it, but what it authorizes to be done by virtue of its provisions,® and a municipal ordinance, passed in pursu- ance of valid authority, has the same force and effect, within proper limits, as if passed by the Legislature itself.^ Where its charter authorizes a city to enact ordinances to make street improvements, assessments levied to pay for such im- provements under a resolution are void.^" The act of a city council in establishing the grade of a street is legislative in character, and must be in the form of an ordinance. ^^ And it is fundamental, that in all matters legislative in character, a municipality has power to act only through the medium of an ordinance, and especially must the grant of power be strictly construed in the enforcement of an assessment upon private property to meet the cost of a public improvement.-'* The passage of the ordinance must 653, 17 N. W. 140; McManus v. precede the making of the im- Hornaday, 99 Iowa, 507, 68 N. W. provement, or the making of the 812; Blanden v. Fort Dodge, 102 improvement and all steps there- Iowa 441, 71 N. W. 411; Eekert v. after are absolutely void. Pells v. Walnut, 117 Iowa, 629, 91 N. W. Paxton, 176 111. 318, 52 N. E. 64. 929; Eeilly v. Fort Dodge, 118 6 Newman v. Emporia, 32 Kan. Iowa, 633, 92 N. W. 887. 456, 4 Pac. 815. IlUnoia. 7 Weld V. People, 149 HI. 257, C. & N. P. E. Co. v. Chicago, 36 N. E. 1006. 174 111. 439, 51 N. E. 596; Gait 8 Brown v. Denver, 7 Colo. 305, v. Chicago, 174 111. 605, 51 N. E. 3 Pac. 455. 653. » Lewis V. Water Works Co., 19 New Jersey. Colo. 236, 41 Am. St. Rep. 248, State v. Rutherford, 55 N. J. L. 34 Pac. 993; Wolff v. Denver 450, 26 Atl. 933. (Colo.) 77 Pac. 364. laCoggeshall v. Des Moines, 78 10 Newman v. Emporia, 32 Kan. Iowa, 235, 41 N. W. 617, 42 N. 456, 4 Pac. 815; Trenton v. Coyle, W. 650; Zelie v. Webster City, 94 107 Mo. 193, 17 S. W. 643; Iowa, 393, 62 N. W. 796; Henis v. Nevada v. Eddy, 123 Mo. 546, 27 Lincoln, 102 Iowa, 69, 71 N. W. S. W. 471. 189; Zalesky v. Cedar Rapids, 118 Iowa. Iowa, 714, 92 N. W. 057; Martin iiKepple V. Keokuk, 61 Iowa, v. Oskaloosa (la.), 99 N. W. 557; 331 § 381 THE LAW OP SPECIAL ASSESSMENTS. 381. In Illinois, it is essential that the first step to be taken in making a local improvement to be paid for by spe- cial assessment or special taxation, is the passage of an ordi- nance specifying the nature, character, locality and descrip- tion of the improvement and the mode in v/hich its cost shall be collected, and no work can be done or expense incurred ■which can become a charge upon property of the land owner before such ordinance is passed.^* And this is required as a safeguard for the protection of the property owner.^* But under a charter providing that when street improvements are to be made the council shall cause the recorder to give notice thereof, it is not necessary to pass an ordinance declaring the intention of the council to make the improvement, but a reso- lution directing the recorder to publish notice is suflficient.^' And where the Legislature has charged the burden on the lots, and directed the street commissioner to make out the Hedge v. Oskaloosa, id.; Ross y. Oskaloosa, id. IS When a city undertakes a pub- lie improvement to be paid for by a special assessment, the first step to be taken is the passage of an ordinance specifying the nature, character, locality and description of the improvement. The ordi- nance lies at the foundation of the proceeding, and in its absence there is nothing upon which such proceeding may rest, or work done which will become a charge against the property. East St. Louis v. Albrecht, 150 HI. 506, 37 N. E, 934; Smith v. Chicago, 169 III 257, 48 N. E. 445; Davis v. Litch field, 155 111. 384, 40 N. E. 354 Carlyle v. Clinton Co., 140 111, 512, 30 N. E. 782 and East St. Louis V. Albrecht, 150 111. 506, 37 N. E. 934 distinguished. In those cases, the ordinance passed after completion of the work, was de- clared void. The power to make local im- provements must be exercised by the passage of an ordinance pre- scribing the mode to be pursued, and whether the improvement shall be paid for by special assess- ment or special taxation, or gen- eral taxation, or both. When the improvement is to be made by spe- cial taxation, the method of levy- ing assessment and collection is the same as in case of special as- sessment. Adams Co. v. Quincy, 130 III. 566, 6 L. R. A. 155, 22 N. E. 624. i*C&j-lyle V. Clinton Co., 140 m. 512, 30 N. B. 782. IB Clinton v. Portland, 26 Or. 410, 38 Pac. 407. 332 THE OBDmAlTCB. § 382 assessment, it is not necessary that the city should assess the tax by ordinance. ^^ Adoption — Fresiunption — Records. 382. Where the council records show the adoption of an ordinance, it will be presumed to have been adopted by the requisite majority.^'' The recommendation of the im- provement board for the passage of an ordinance is prima facie evidence that all preliminary requirements, including notice, have been performed.*® Where nothing appears in the record to the contrary, under a charter requirement that a street improvement ordinance be passed only by unanimous consent, it will be presumed to have been so passed.*® And where the same requirement is made a condition precedent to the entry of an order, the fact that the order was entered, affords a presumption that the required unanimity ob- tained.^" An ordinance authorizing a street improvement will be presumed to have been passed at a regular meeting by all councilmen present when the proof tends to show that its passage was at an adjourned meeting from a regular meeting, and the record states that the same was passed, and that several councilmen, naming them, voted in the af- firmative, and that none voted against it.** Where the or- dinance for a special improvement is omitted from the record by stipulation, on appeal from a judgment of confirmation, it will be presumed that such ordinance showed enough to 16 Schenley v. Commonwealth, C " is not made void because of 36 Pa. St. 62. the fail'ure to follow the exact IT Brewster v. Davenport, 51 form, such provisions being merely Iowa, 427, 1 N. W. 737. directory. People v. Burke, 206 18 Chicago U. T. Co. v. Chicago, III. 358, 69 N. E. 45; Law v. Peo- 202 111. 576, 67 N. B. 383. pie, 87 111. 385. Under a city charter which re- lo Lexington v. Headley, 5 Bush, quires that the enacting clause of 508. ordinances should read, " Be it or- 20 Lexington v. Headley, 5 Bush, dained by the city council of the 508. city of C," an ordinance entitled 21 Seattle v. Doran, 5 Wash. 482, "Be it ordained by the city of 32 Pac. 105, 1002. 333 § 383 THE LAW OF SPECIAL ASSESSMENTS, establish that it was in force when the assessment was made by the commissioners and their estimate returned, notwith- standing the statutory provision that ordinances do not take effect for five days unless approved by the mayor. ^^ 383. An ordinance can neither be amended, repealed nor suspended by an order, or resolution, or other act of the council of less dignity than the ordinance itself,** and a resolution of the council appointing commissioners to esti- mate the cost of an improvement, passed by way of amend- ment to the ordinance which omitted such appointment, is invalid.** Legislation which does not impair vested rights, but is purely remedial in its operation on pre-existing rights and liabilities, is not within the inhibition of the constitu- tion which forbids the passage of retroactive laws. There- fore it follows that where a city passed an ordinance under legislative authority for a street improvement and an as- sessment for two thirds of its cost, and the street was im- proved but the ordinance proved defective because of the illegal apportionment of the tax, it was competent for the city to so amend its ordinance after the work was com- pleted as to conform to the provisions of the statute touching a legal apportionment.*' But where a city deems it wise to change the grade of a street, and abandon the construction contemplated in the petition therefor, and by the board of local improvements and its ordinance, it should not attempt to amend the ordinance, but should repeal it, and leave it to those who are authorized by law to petition for a pavement at the level fixed by the new grade, to determine whether they desire the improvement to be made imder the changed conditions.** And a general ordinance providing how side- walks shall be built may be incorporated into a special ordi- 22 Gage V. Chicago, 162 111. 313, 24 Paxton v. Bogardus, 201 IlL 44 N. E. 729. 628, 66 N. E. 853. 23 C. & N. P. E. Co. V. Chicago, 26 Bacon v. Savannah, 105 Ga. 174 111. 439, 51 N. E. 596; Peo- 62, 31 S. E. 127. pie V. Latham, 203 111. 9, 67 N. E. 2« Whaples v. Waukegan, 179 403. 111. 310, 53 N. E. 618. 334 THE OEDINANCE. § 384 nance directing the location of such walks, by proper refer- ence.^'' A statute requiring cities to have all ordinances and resolutions in a separate book is directory only so far as re- spects the particular mode in which the record shall be made.^* Requisites to validity. 384. Where the cost of a local street improvement is raised in whole or in part by special taxation, the ordinance must either state the sum or give the necessary facts by which the commissioners can fix the amount to be raised, and when so fixed and ascertained in conformity with the ordi- nance, it is conclusive upon the property ovmers,^® and the estimate of cost cannot be resorted to in aid of a defective description of the work in the ordinance.^" The object of the statute requiring the ordinance to set forth the nature, character and description of the improvement is, that an intelligent estimate of the cost be made; *^ and if the ordi- nance be defective in that particular the ordinance cannot be confirmed. ^^ It is unnecessary that all the details and par- ticulars of the work be set forth. A substantial compliance 2T Kerson v. People, 204 111. 2» Sterling v. Gait, 117 HI. 11, 456, 68 N. E. 383. 7 N. E. 471 ; Green v. Springfield, Under an ordinance for a side- 130 III. 515, 22 N. E. 602. walk to be laid on a grade estab- 3o McChesney v. Chicago, 171 111. lished by another ordinance on file 253, 49 N. E. 548. and of record in the city clerk's »iLevy v. Chicago, 113 111. 650; office during the time when the Barber v. Chicago, 152 111. 37, 38 walk was to be constructed by the N. E. 253; Culver v. Chicago, 171 lot owner, and which furnished 111. 399, 49 N. E. 573; Lusk v. him all necessary information, it Chicago, 176 111. 207, 52 N. E. 54. is no objection that the grade or- Such an ordinance is binding on dinance was passed the same day the commissioners in their action, as the sidewalk ordinance, and had and they have no power to correct not been recorded by the clerk a mistake in the same. Jefferson when the sidewalk ordinance was Co. v. Mt. Vernon, 145 111. 80, 33 passed. People v. Burke, 206 111. N. E. 1091. 358, 69 N. E. 45. 32 Levy v. Chicago, 113 HI. 650. 28XJpington v. Oviatt, 24 Ohio St. 232. 335 § 385 THE LAW OF SPECIAL ASSESSMENTS. ■with the statute is all that is required.^* But if the ordi- ance fails to give a sufficient description of the proposed im- provement, so that a correct estimate of the cost can be had^ the ordinance will be void. Such ordinance will not be aided by the report of the committee, when it also contains the same indefiniteness.*^ It need not, however, show that the improvement will be beneficial,*® but it must be unam- biguous as to what is required. *'' 385. The question of the sufficiency of an ordinance may be determined by the appellate court from a copy of the or- dinance attached to the assessment petitions, even when not included in the bill of exceptions, such copy being a part of the record.** The court is without authority to take under advisement preliminary legal questions involving the validity of a special assessment ordinance, and not pass upon them until after a trial by jury. The objectors have a right to a decision as to whether the ordinance and assessment legally afforded any basis for a trial upon the question of benefits, before being required to try the issue.* ^ And an objection, as to the insufficiency of the ordinance as not adequately de- scribing the improvement is not available on application for judgment of sale for a delinquent special assessment.*" An ordinance providing for a street improvement to be made in a certain manner, will prevail over a previous general ordi- nance in conflict therewith.*' 84 Kankakee v. Potter, H9 111. v. Chicago, 162 III. 505, 44 N. E. 324, 10 N. E. 212; Springfield v. 832. Mathus, 124 111. 88, 16 N. E. 92; 40 People v. Lingle, 165 111. 65, Pearee v. Hyde Park, 126 111. 287, 46 N. E. 10. 18 N. E. 824. 4iHoldom v. Chicago, 169 IIU 80 Gage V. Chicago, 143 111. 157, 109, 48 N. E. 164. 32 N. E. 264. The following cases involve 36 Culver V. Chicago, 171 111. questions similar in scope to the 399, 49 N. E. 573. matters discussed in the text: 87 State V. South Amb(^, 62 N. Georgia. J. L. 197, 40 Atl. 637. The choice of materials may be 38 Maxwell v. Chicago, 185 HI. made after the adoption of the or- 18, 56 N. E. 1101. dinance. Bacon v. Savannah, 86. 39 Title Guarantee & Trust Co. Ga. 301, 12 S. E. 580. 336 THE OBDINANCE. § 386 Construction of. 386. Practically the same rules which provide for the construction of statutes also apply to the construction of or- dinances, which in effect are local statutes. A special as- sessment ordinance must be viewed as a whole, and one por- tion of it may be referred to for the purpose of explaining another.*^ If the facts regarding such an ordinance are capable of two different constructions, that which will sup- lUinois. If the ordinance which is the foundation of a special assessment does not contain a description of the nature, character and locality of the improvement, the court will have no authority to confirm the assessment. Kankakee v. Potter, 119 111. 324, 10 N. E. 212. Where the statute does not re- quire a special assessment ordi- nance to be certified by the clerk, such certificate if made is no part of the ordinance. Wadlow v. Chi- cago, 159 111. 176, 42 N. E. 866. The failure of the city clerk to certify that a copy of an ordinance attached to the petition was passed by the council affords no ground for objection to confirmation. Fer- ris V. Chicago, 162 111. Ill, 44 N. E. 436. The caption of an ordinance " for the grading, draining, pav- ing, and otherwise improving " a street, covers a provision in the ordinance for making parkways in the street. Thompson v. Highland Park, 187 111. 265, 58 N. E. 328. Ordinance — supplemental — need not repeat description. Mark- ley V. Chicago, 189 111. 276. Work on a public improvement is begun before the final passage of the ordinance if it is begun be- fore the passage of an amendment making a material change in the improvement. Paxton v. Bogar- dus, 201 111. 628. 66 N. E. 853. Iowa. Where a general city ordinance provides that the cost of street im- provements shall be assessed against the abutting property, an objection by plaintiff that she had no notice that the cost of gutter- ing and curbing the street in front of her lots was to be assessed against them is unavailing. Arn- old V. Port Dodge, 111 Iowa, 152, 82 N. W. 495. Ohio. An ordinance of a town (which afterwards became an incorpo- rated village) prescribing method of assessing for improvements, continues in force as a valid ordi- nance of such village, if the mode prescribed is consistent with the statutory powers given to the vil- lage. Nefif V. Bates, 25 Ohio St. 169. An ordinance for improving a street between two points may properly except an intermediate part of such street which is by ex- isting contract to be contempora- neously improved without expense to the city; and such separated parts may be improved and as- sessed as if contiguous. Wilder v. Cincinnati, 26 Ohio St. 284. 22 337 § 387 THE LAW OF SPECIAL ASSESSMENTS. port the ordinance will be preferred to tlie one which will de- feat it.** An ordinance which authorizes a city to require the owners of lots adjacent to a street to pave it, does not authorize the city to pave a street at the expense of a rail- road company having a mere right of way over adjacent lots.** And an ordinance permitting an elevated road to maintain and operate its road, but requiring them to restore the pavements, gutters, sidewalks, water pipes, sewer pipes, or gas pipes, and replace them in good condition in case of disturbance in constructing the road, is merely a safety clause, and not a contract precluding the city from making special assessment of the property for a street improve- ment.*' One which provides for improving several streets and for laying the assessment of the cost upon the lots and parts of lots upon the streets to be improved, in proportion to the frontage upon such streets^ will be held to apply only to the lots or parts of lots bounded by the lines of the streets severally tO be improved, and not to inside lots not abutting upon such streets.*® Effect of Bepeal of. 387. The repeal of an ordinance for a special assessment, pending an appeal from a judgment confirming it, does not justify the court in setting aside the. judgment of confirma- tion at a subsequent term. Such judgment of confirmation is a final judgment.*'^ And as a street may be widened or opened in sections, the effect of the repeal* of an ordinance to open a street, except as to the lands already taken for pub- 42McChesney v. COiicago, 173 cago, 183 111. 75, 47 L. R. A. 624, m. 75, 50 N. E. 191; Gage v. Chi- 55 N. B. 721. cago, 196 111. 512, 63 N. E. 1031. 48 Wilbur v. Springfield, 123 111. 43 HaTmon v. Chicago, 140 111. 395, 14 N. E. 871. 374, 29 N. E. 732 ; Berry v. Chi- For conatruction of term "ihere- cago, 192 111. 154, 61 N. E. 498. after," see Keiidig v. Knight, 60 44 Muscatine v. C. R. I. & P. R. Iowa, 29, 14 N. W. 78. R. Co., 88 Iowa, 291, 55 N. W. 4t People v. McWethy, 165 III. 100. 222, 46 N. E. 187. 45 Lake St. El. R. Co. v. Chi- 338 THE OEDINANCE. § 388 lie use, is not a vacation of the entire street, but only of the part not yet opened.** Must be reasonable. 388. It is well settled that an ordinance to be valid must be reasonable and not oppressive. It must be impartial and fair,** and it is the duty of the court to pass upon its validi- ty."" The rule that where the legislature has, in terms, con- ferred upon a municipal corporation power to pass an ordi- nance of a definite, specified character, such an ordinance cannot be impeached as unreasonable, applies where the ordi- nance follows the power conferred by the legislature. But such rule does not apply where the grant of power is general in its nature, for there is then an implied limitation that its exercise shall be reasonable, and if it be clearly unreasonable, unjust or oppressive, it may be held invalid by the court."^ The courts will not declare an ordinance void for unreason- ableness unless it is manifestly so, and in view of existing circumstances and contemporaneous conditions as clearly dia- closed by the evidence.'* The enactment of an ordinance by a body having authority to pass it, is prima facie evidence of its reasonableness.®* The facts upon which various ordi- nances have been upheld as reasonable, or adjudged invalid *8 People V. Hyde Park, 117 111. 23 N. E. 590; Hawes v. Chicago, 462, 6 N. B. 33. 158 111. 653, 30 L. E. A. 225, 42 49 Hyde Park v. Carton, 132 111. N. E. 373; Chicago v. Brown, 205 100, 23 N. E. 590; Bloomington 111. 568, 69 N. E. 65. (Paving or- V. Latham, 142 111. 462, 18 L. R. diance held unreasonable.) A. 487, 32 N. E. 506; Job v. Al- b2 Myers v. Chicago, 196 111. ton, 189 111. 256, 82 Am. St. Rep. 591, 63 N. E. 1037; Walker v. 448, 59 N. E. 622. Chicago, 202 111. 531, 67 N. E. BO Hyde Park v. Carton, 132 111. 369 ; Chicago v. Brown, 205 111. 100, 23 N. B. 590; Chicago v. 568, 69 N. E. 65; McFarlane v. Brown, 205 111. 568, 69 N. E. 65; Chicago, 185 111. 242, 57 N. E. 12. Walker v. Chicago, 202 111. 531, 67 And see C. & N. W. R. Co. v. N. E. 369. Elmhurst, 165 111. 148, 46 N. E. 51 Title Guarantee & Trust Co. 437. V. Chicago, 162 111. 505, 44 N. E. 5S Morse v. West Port, 110 Mo. 832; Hyde v. Carton, 132 111. 100, 502, 19 S. W. 831. 339 § 389 THE LAW OF SPECIAL ASSESSMENTS. for the opposite reason are collated in the marginal note.°* Reference to plans, etc., on file. 389. Where the statute so provides, the nature, locality and description of the contemplated improvement may be specified in the ordinance by a reference to maps, plans, pro- E4 Ordinances beld reason- able. IlUnois, An ordinance of a town open- ing a street across a, railroad track is not so unreasonable and oppressive as to authorize the courts to hold it void, simply be- cause the existing streets across the tracks on either side of the proposed street are but 620 feet apart. C. & N. W. E. Co. v. Ci- cero, 154 111. 656, 39 N. E. 574. A street paving ordinance will not be held void for unreasonable- ness, although the improvement was a rather expensive one for a street upon which there were few residences, where not a property owner kept a horse or vehicle and the land was mostly open prairie, it also appearing that during a considerable portion of the year the street was impassable. Pey- ton V. Morgan Park, 172 111. 102, 49 N. E. 1003. When ordinance for construction of cement sidewalk not void as be- ing unreasonable. Chicago v. Wil- son, 195 111. 19, 57 L. R. A. 127, 62 N. E. 843. An ordinance for laying water pipe in front of lots worth $250 each at an expense of $18.50 per lot is not so unreasonable as to make the ordinance void. Myers V. Chicago, 196 111. 591, 63 N. E. 1037. A sewer ordinance providing for two house slants fpr each corner lot is not unreasonable. Duane V. Chicago, 198 111. 471, 64 N. E. 1033. A provision in an ordinance which require bidders to submit specimen bricks which must with- stand certain " absorption " and " abrasion " tests by the board, is not an unreasonable restraint upon competitive bidding. Chica- go V. Singer, 202 111. 75, 66 N. E. 874. Missouri. An ordinance providing for an advertisement for bids on a pav- ing contract by posting the notices at ten public places within the city for five days is prima facie, reasonable. Warren v. Barber A. P. Co., 115 Mo. 572, 22 S. W. 490. Under an ordinance providing that when a sidewalk in a certain district of the city became out of repair, it should be replaced by one of atone flagging, and it was shown that such district contained 200 miles of brick sidewalk, and that such walk in front of plain- tiff's premises was out of repair, but could be repaired with brick at a cost of seven dollars, but that a new stone walk would cost 340 THE ORDINANCE. 389 three hundred dollars, the ordi- nance was not void. Skinker v. Heman, 148 Mo. 350, 49 S. W. 1026. Ordinances held unreason- able. Illinois. An ordinance compelling the substitution of a cement sidewalk in the place of a plank walk in front of a 20-acre lot which had been laid less than six months, but in conformity to the ordinance, and which was in good condition and in all respects safe and con- venient for public use, is unrea- sonable, unjust and oppressive, and therefore void. Hawes v. Chi- cago, 158 111. 653, 30 L. R. A. 225, 42 N. E. 373. An ordinance requiring a brick pavement to be laid on a street is unreasonable as to a, portion thereof at the end of the improve- ment which has a cedar block pavement four years old in good condition, where it is not shown the brick pavement is necessary in that particular locality, and other portions of the block pave- ment have been without explana- tion excepted from the operation of the ordinance. McFarlane v. Chicago, 185 111. 242, 57 N. E. 12. An ordinance providing for sewer connections every twenty feet on both sides of the sewer is unreasonable in that regard, where the territory is used mostly for hay land, is unsubdivided and held in large tracts, practically uninhabited, with neither streets nor houses in most of the dis- tricts. Bickerdike v. Chicago, 185 111. 280, 56 N. B. 1096. House slants — when unreason- able. See Smythe v. Chicago, 197 m. all, 64 N. E. 361. The question as to the unreason- ableness of an ordinance for a sewer will not be considered solely with reference to the objector's property, where it consists of five and ten-acre unsubdivided tracts surrounded by territory in the same district subdivided into lots, blocks, streets and alleys. Wash- burn V. Chicago, 198 111. 506, 64 N. E. 1064. An ordinance to lay two blocks of asphalt pavement, which re- quires the expense of tearing out a practically new macadam pave- ment in good condition at the sin- gle street intersection and of re- placing it with asphalt, to .be borne by the property owners in the two blocks, is void, as being unreasonable. Chicago v. Brown, 205 111. 568, 69 N. E. 65. Where a macadam pavement has been laid down only four years, is in good condition, and no reason for removing it appears, an ordi- nance requiring it to be replaced with asphalt at the expense of the abutting owners, is void, as being unreasonable and oppressive. Chi- cago V. Brown, 205 111. 568, 69 N. E. 65. Missouri. An ordinance for grading a street which authorizes the cost of grading a section to be charged in part against the property fronting on that section and in part on property fronting on another sec- tion which has already been graded at the cost of that property exclusively, is so inequitable and ■unjust that it will not be sus- tained unless the power to enact it is clearly given by the charter; and even then it is a matter of doubt if it could be upheld. Hal- pin V. Campbell, 71 Mo. 493. 341 § 390 THE LAW OF SPECIAL ASSESSMENTS, files and specifications on file in a certain office. °* Where a city ordinance by its own terms sufficiently describes the im- provement, it is not invalidated by the fact that it further refers to plans and specifications on file in the department of public works. ^^ There seems to be no reasonable groimd for holding that, as a general proposition, an ordinance may not state where the detailed information requisite for the infor- mation both of bidder and tax-payer may be had, irrespective of a permissive statute, and it is so held in other states than Illinois.®^ But the very stringent provisions of the statute of that state requiring the ordinance to specify the nature, character and description of the improvement has caused a line of decisions in that state holding that a reference in the ordinance to plans and specifications on file in the office of the city clerk was not a compliance with the statute, and those decisions should be read in the light of the statutory requirements. The law was amended in 1887 so as to specially permit of such reference. Omission to state location of improvement. 390. An ordinance for a public improvement, showing upon its face that it was enacted by -ohe council of a certain 56 Pearce v. Hyde Park, 126 HI. street, but may refer to a plat for 287, 18 N. E. 824; L. & A. R. Co. that purpose; and In case of a V. East St. Louis, 134 111. 656, 25 variance between the two as to N. E. 962; Gallon v. Jacksonville, courses and distances, the latter 147 111. 113, 35 N. E. 223; Alton will prevail. Burk v. Mayor, etc., V. Middleton's Heirs, 158 111. 442, 77 Md. 469, 26 Atl. 868. 41 N. E. 926 ; Steele v. River For- An ordiance for grading and ma- est, 141 111. 302, 30 N. E. 1034. cadamizing a street is not void for As to sufficiency of profile, see uncertainty because the speciflca- Carlinville v. McClure, 156 111. tions for the work are not em- 492, 41 N. E. 169. bodied in the ordinance, but are 56 Cunningham v. Peoria, 157 referred to as being on file in the 111. 499, 41 N. E. 1014. city clerk's office. Becker v. Wash- 57 An ordinance for opening a ington, 94 Mo. 375, 7 S. W. 291. street need not define with accu- An ordinance for the letting of racy the lines of the proposed public work may properly refer for 342 THE OEDlNAIirOE. § 391 city, sufficiently shows that the street to be improved is within the limits of the city passing the ordinance, such being the presumption."® Must be substantially complied with — Variance. 391. A substantial compliance of the work done with that provided for by the ordinance is unquestionably neces- sary, and such substantial compliance will be sufficient where a literal compliance is impossible; and the fact that some changes are made in the character of the improvement is not a defense to a special assessment, because the acceptance of the work by the authorities is final, in the absence of fraud, and such objection, if tenable, should have been brought by a bill for an injunction before the completion of the work."*' So a slight deviation in laying a sewer from the line pre- scribed in the ordinance, made necessary by the presence of water-pipes, where it is as beneficial as if laid on the original line, and the only difference being that it shortened the connecting pipes, does not render the ordinance invalid, and defeat judgment of sale ; *" but expensive changes, adding greatly to the cost, such as the substitution of flush tanks for details to specifications on file in 1117; P. & E. C. & I. Co. v. Chi- the city engineer's office. Barber cago, 158 111. 9, 41 N. E. 1102j Asphalt P. Co. V. Ullman, 137 Mo. 43 N. E. 335. 543, 38 S. W. 458. But see, Alton »» Ricketts v. Hyde Park, 85 IlL V. Middleton's Heirs, 158 111. 442, 110; Peters v. Chicago, 192 111. 41 N. E. 926. 437, 61 N. E. 438; People v. 58 Meadowcroft v. People, 154 Church, 192 111. 302, 61 N. E. 496. m. 417, 40 N. B. 442; Stanton v. So that any contractor or person Chicago, 154 111. 23, 39 N. E. 987 ; experienced in the construction of Young V. People, 155 111. 247, 40 kind of work required can comply N. E. 604 ; West Chi. S. E. Co. v. with the ordinance according to its People, 155 111. 299, 40 N. E. 599 ; intent. Chicago Union Tr. Co. v. West Ch. S. E. Co. v. People, 156 Chicago, 215 111. 410, 74 N. E. 449. 111. 18, 40 N. E. 605; Wisner v. «o People v. Church, 192 111. 302, People, 156 111. 180, 40 N. E. 574; 61 N. E. 496; Church v. People, Bliss V. Chicago, 156 111. 584, 41 174 111. 366, 51 N. E. 747; followed N. E. 160; Chicago v. Silverman, in Church v. People, 179 111. 205, 156 111. 601, 41 N. E. 162; Beach 53 N. E. 554. V. People, 157 111. 659, 41 N. E. 343 §§ 392, 393 THE LAW OS" SPECIAL ASSESSMENTS. lamp-holes, are not chargeable to the assessment fund, even if regarded as necessary to the perfect working of the sewer system.®^ And an ordinance providing, " That electric lamp-posts be and they are hereby ordered erected," will not justify a special assessment to pay for the lamp, fixtures, and other articles provided for in a subsequent section.®^ 392. On general principles, however, the ordinance being the sole authority for the construction of a public improve- ment to be paid for by special assessment, the municipal au- thorities have no right to change the nature, locality, char- acter or description of the improvement as prescribed in the ordinance.®* Thus where the improvement which has been constructed is materially and substantially different from that authorized by the ordinance, the grade changed from six to nine feet, and the cost of the improvement ma- terially increased, the special assessment levied to pay the cost is not enforceable.** But a departure from the terms of the ordinance is not sufficient ground for refusing confirma- tion of an assessment unless it be established that by reason of such departure the improvement constructed is different from the one provided for.®* A number of cases giving concrete illustrations of the decisions of the courts in cases of variance will be found in the marginal note.®* Embracing more than one improvement. 393. It is a general rule that an ordinance providing for a public improvement to be paid for by special assessment or 61 People V. McWethy, 177 111. 66 Variances invalidating asaess- 334, 52 N. E. 479. ment. 62 Smith V. Chicago, 169 111. 257, Paving a street to width of 64 48 N. E. 445. feet, where ordinance provided for 63 Church V. People, 174 111. 366, 50 feet in width, although 16 feet 51 N. E. 747; Gage v. People, 200 in center was paid for by a street m. 432, 65 N. E. 1084. railway company by agreement. 64 Eustace v. People, 213 III. Chicago v. Ayers, 212 111. 59, 72 424, 72 N. E. 1089. N. E. 32. 6s Wells V. People, 201 111. 435, The passage of the ordinance for 66 N. E. 210; Chicago v. Hulbert, a street pavement of reduced 205 111. 346, 68 N. E. 786. width is a valid objection to the 344 THE OKDINAWCE. 393 special taxation should embrace but one improvement.®'^ But an ordinance for paving several streets and alleys with the same material, and in the same manner, is not invalid as embracing more than one improvement, even where there is a difference of a few feet in the width of the streets, and the cost of paving railway tracks be excluded,®^ especially when in the case of sewer construction, the same material and mode of construction is provided for, although not connected with each other.® ^ The principle is that only one kind of improvement shall be provided for, although differ- ent streets or assessment districts are not covered by the judgment against lands for a de- linquent assessment levied under a previous ordinance for the same improvement providing for the wider pavement. And the consent of the lot owner to the reduction does not waive his right to a new estimate and assessment. Pells V. People, 174 111. 580. Where a paving ordinance calls for a foundation layer six inches deep of the best quality of broken limestone, the city authorities, after confirmation, have no power fo change it to a seven-inch layer of rolling-mill slag; and if such change be so made, an objection thereto is available on application for sale. Young v. People, 196 111. 603, 63 N. B. 1075. Tariances insufficient to irwalidate assessment. Use of cement inferior to kind called for. Wells v. People, 201 111. 435, 66 N. E. 210. Use of paving blocks seven to «ight inches in depth, the ordi- nance calling for eight-inch blocks, hut the custom having been fol- lowed for two years. Cole v. Skrainka, 105 Mo. 303, 16 S. W. 491. Use of five-inch curb and gutter instead of six-inch, and the fact that part of the limestone used was four-inch size instead of three- inch, where the value of the im- provement is not affected by such change, and the objecting property owners remained silent during the progress of the work. Chicago v. Sherman, 212 111. 498, 72 N. E. 396. And see Pierson v. People, 204 111. 456, 68 N. E. 383. Untenable claim as to variance between caption and body. Chi- cago Union Tr. Co. v. Chicago, 207 111. 544, 69 N. E. 849. «7 Boorman v. Santa Barbara, 65 Cal. 313, 4 Pac. 31; Weckler v. Chicago, 61 111. 142; In re Powel- ton Avenue, 11 Phila. 447. 88 Springfield v. Green, 120 111. 269, 11 N. E. 261; same case, 123 111. 395, 14 N. E. 871. «9 Hinsdale v. Shannon, 182 111. 312, 55 N. E. 327. See, also, Wat- son V. Chicago, 115 111. 78, 3 N. E. 430; Beach v. People, 157 111. 659, 41 N. E. 1117; Payne v. South Springfield, 161 111. 285, 44 N. E. 105. 345 § 394 THE LAW OF SPECIAL ASSESSMENTS. rule.''** The constitutional provision that no law shall con- tain more than one subject, which shall be expressed in its title, does not apply to city ordinances.^' Validity — In general. 394. Where an ordinance gives a full and detailed de- scription of the proposed improvement, in all its parts, the failure of the engineer to furnish the plans and maps re- ferred to in the ordinance as being on file in his ofiSce, will not invalidate the ordinance or the proceedings under it ; ''^ nor will failure to specify the section of land in which the improvement is to be made, if in other respects the locality is suflfieiently designated ; ''* and one which names the limits of the proposed street extension, describes by metes and bounds the lands to be taken for the same, and provides for the opening of the described tract for a street, sufficiently describes the locality ;''* so, too, does one which describes the land to be taken " in accordance with the plan hereto an- nexed " ; '' one which with particularity and certainty de- scribes the brick to be used is not rendered invalid because bidders are required to submit specimens to be subjected to certain " absorption " and " abrasion tests " by the board, and requiring the latter to reject all specimens not sustaining the tests ; ''' nor is one invalid or insufficient because in pro- viding for the proportions of cement, limestone and sand to form concrete, the word " measure " is used with respect to 70 People V. Yonkers, 39 Barb. 'i Chicago Union Tr. Co. v. Chi- 266. And see, Wilbur v. Spring- cago, 207 111. 544, 69 N. E. 849. field, 123 111. 395, 14 N. E. 871 ; " White v. Alton, 149 111. 626, Adams Co. v. Quincy, 130 111. 566, 37 N. E. 96. 6 L. R. A. 155, 22 N. E. 624; '3 Chytraus v. Chicago, 160 111. Eonan v. People, 193 111. 631, 61 18, 43 N. E. 335. N. E. 1042 ; State v. District 74 Danville v. McAdams, 153 111. Court, 29 Minn. 62, 11 N. W. 133; 216, 38 N. E. 632. State V. District Court, 33 Minn. 75 Hutt v. Chicago, 132 111. 352, 295, 23 N. W. 222 ; Burlington v. 23 N. E. 1010. Quick, 47 Iowa, 222. 76 Chicago v. Singer, 202 111. 75, 66 N. E. 874. 346 THE OEDISTANCE. §§ 395, 396 cement, and " parts " to the sand and limestone ; ''^ nor is it rendered indefinite by the use of the word " filling " in grad- ing a street, it being shown the word has a definite meaning among engineers and contractors ; ''* and when the meaning of the term " property crossings " is understood by all par- ties, a sidewalk ordinance requiring such crossings to be laid " for the use of property owners " is not void for failure to fix their number, location, nor method of construction.''® 395. A street improvement ordinance cannot be con- demned because difficulties, inconvenience or loss may pos- sibly result therefrom, if the improvement be lawfully made, with due care, and due regard for the rights of others.*" One for widening a street may be valid although a condition thereto annexed, to the effect that a certain railway company shall, within a certain time therein limited, indemnify the city, is not fulfilled; ®^ and a city may extend a street im- provement a few feet into cross-streets, and beyond the dis- tance fixed in the ordinance, without affecting its validity in that respect, but must pay for the excess by general taxation, and not from special assessment.*^ 396. Where a general ordinance and a special ordinance referring thereto were both passed the same day, the former to go into effect from and after its passage, and the latter from and after its passage and publication, the latter date being three days later, the special ordinance is not invalid as being based on a general ordinance not yet gone into ef- fect.«3 TT Sawyer v. Chicago, 183 111. 57, ham, 172 III. 607, 50 N. E. 103; 55 N. E. 645. Hynes v. Chicago, 175 111. 56, 51 T8 Levy V. Chicago, 113 111. 650. N. E. 705. T» People V. Burke, 206 111. 358, so C. B. & Q. R. Co. v. Quincy, 69 N. E. 45. And see, generally, 139 111. 355, 28 N. E. 1069. as to the necessity of the ordinance si Uhrig v. St. Louis, 44 Mo. being specific, C. B. & Q. E. Co. v. 458. Quincy, 136 111. 563, 29 Am. St. S2 white v. Alton, 149 111. 626, Rep. 334, 27 N. B. 192; Ewart v. 37 N. E. 96. Western Springs, 180 111. 318, 54 S3 Pierson v. People, 204 111. 456, N. E. 478; I. C. R. Co. v. Effing- 68 N. E. 383. 347 §§ 397, 398 THE LAW OF SPECIAL ASSESSMENTS. 397. The rule is that unless there is a total failure to include in an ordinance the necessary element of a specifica- tion of the nature, character, locality and description of the improvement as required by the statute, the mere fact that the specification is defective in some respect will not be a defense on the application for judgment on a delinquent list,** but a street improvement ordinance must of necessity show the grade in order that an accurate estimate of the excavation and filling may be made.*' The fact that a street to be im- proved has a " jog " in it, does not constitute the portion on each side a separate street so as to make the improvement double.*® A new ordinance levying a new assessment for work completed under a prior ordinance which has been held invalid need not describe the improvement in detail ; ^'' and one for a public improvement providing " that said improve- ment shall be made and the cost thereof paid by special as- sessment, to be levied upon the property being benefited thereby, to the amount that the same may be legally assessed therefor, and that the remainder of the cost shall be paid by general taxation, will be construed merely as a declara- tion that the improvement shall be paid in part by special assessment, and is not invalid.** A mere inaccuracy of the description of one of the termini in a local improvement ordinance, which may be cured by reference to the plat at- tached to the petition for confirmation, or which may be rendered certain by a simple computation, does not render the ordinance invalid.*^ 398. Where the statute provides that in case a special assessment is payable in installments, fixing the maximum for the first one, and dividing the balance into four pay- 8* Gross V. People, 172 111. 571, s? Chicago v. Hulbert, 205 111. 50 N. E. 334. 346, 68 N. E. 786. 85 Carlinville v. MeClure, 156 88 Burhans v. Norwood Park, 111. 492, 41 N. E. 169. 138 111. 147, 27 N. E. 1088. 86 Culver V. Chicago, 171 111. 89]sricholes v. People, 171 111. 399, 49 N. E. 573. 376, 49 N. E. 574 ; Houston v. Chi- cago, 191 111. 559, 61 N. E. 396. 348 THE OEDHiTANCE. § 399 ments, an ordinance properly fixing the amount of the first installment, or one which fixes the time of payment at twenty per cent after the confirmation of the assessment, and twenty per cent of the total each year thereafter, is suffi- ciently specific, and a separate ordinance to effect such divi- sion is unnecessary.®* The existence of a general ordinance requiring bidders for public work to employ union labor only, is not ground for refusing judgment of sale where it is not shown that the ordinance for the improvement, or the bid or contract contained such a clause, or that the union labor ordi- nance was employed or enforced in any manner in the con- tract or proceeding.®^ An assessment ordinance need not set out the particular statute under which the assessment is to be collected, as it will be presumed that it was made in ac- cordance with any then existing statute which authorized it,®^ and its publication in a newspaper of general circulation is valid and sufficient if made in a newspaper published only on Sunday.®* 399. The validity of a condemnation ordinance cannot be assailed collaterally in an action to collect a paving assess- ment ; ®* but that a special assessment ordinance is void so that no rights or steps could be taken under it, is an objection available on collateral attack.®^ It need not specify in detail the quantity of each article to be used,®® and it may by refer- ence adopt the city dictum established by a previous ordi- nance without setting forth the former one.®'^ That an ordi- nance for new assessment for completed work does not cure the defects in description for which the original ordinance 90 Andrew3 v. People, 164 111. 93 Hastings v. Columbus, 42 581, 45 N. E. 965 ; Davis v. Litch- Ohio St. 585. field, 155 111. 384, 40 N. E. 354; 94 Dashiell v. Mayor, etc., 45 Walker v. People, 170 111. 410, 48 Md. 615. N. E. 1010. 95 Hull V. People, 170 111. 246, 91 Grey v. People, 194 111. 486, 48 N. E. 984. 62 N. E. 894. 98 Woods v. Chicago, 135 111. 92 Andrews v. People, 173 El. 582, 26 N. E. 608. 123, 50 N. B. 335. 97 Kunst v. People, 173 111. 79, 50 N. E. 168. 349 § 400 THE LAW OF SPECIAL ASSESSMENTS. was held invalid, and that there were slight departures from the original ordinance in making the improvement, will not defeat the new assessment where the city has accepted the work as satisfactorily complying with the ordinance.®* An objection to an assessment for work done under an ordinance assessing the expense on the property benefited, as being void because the ordinance purports to direct a tax regardless of the question whether the benefit equalled the expenditure, is untenable, for the reason that the ordinance was passed un- der authority, and there being no allegation or proof to the contrary, it is to be assumed that the legislative judgment was that the benefit would be as great as the cost.*^ 400. The mere lapse of a year between the introduction of an ordinance and its passage does not render it void,' nor a provision that it shall go into effect from its passage, while the statute requires ten days after publication to elapse be- fore it becomes operative ; ^ and where the date of an ordi- nance is correctly set forth in an assessment petition, a mis- statement of such date in the preamble of the commission- ers' estimate is of no effect, when there is a default, nor can the objection be first raised on appeal.* One passed in pursuance of a charter requirement that the city keep its streets in repair, is not unconstitutional because it directs the city engineer to make the repairs at the expense of the adjacent property owner without notice to the latter, as he may have his day in court if sued on the special tax bill,* nor is one authorizing the city engineer to make certain street improvements invalidated because no time is therein specified for the completion of the work." A street im- »8 Markley v. Chicago, 190 HI. 2 1. C. E. Co. v. People, 161 111. 276, 60 N. E. 512; Chicago v. Hul- 244, 43 N. E. 1107. bert, 205 111. 346, 68 N. E. 786; a Hull v. West Chi. Park Comr's, Chicago V. Sherman, 212 111. 498, 185 111. 150, 57 N. E. 1. 72 N. E. 396. ■* Kansas City v. Huling, 87 Mo. 89 In re Roberts, 81 N. Y. 62. 203. 1 McLaughlin v. Chicago, 198 Strassheim v. Jerman, 56 Mo. 111. 518, 64 N. E. 1036. 105; Carlin v. Cavender, 56 Mo. 286. 350 THE OBDINANCE. § 401 provement ordinance is not made void because of a provision therein that the authorities reserve the right to reject " any proposal, at their discretion," such clause being in conflict with the statute. Such provision will be regarded as nuga- tory and the ordinance valid where it does not appear that the authorities ever acted thereunder,® nor is it made void because of authorizing the city to advance money to the con- tractor, upon his assigning to it his liens for such improve- ment, which is made at the expense of abutting property^ A defective description in an assessment ordinance is no de- fense to an application for sale unless it be of such a character as to render the ordinance void. 401. It cannot be said, as matter of law, that an ordi- nance requiring lot owners to pay for the improvement of the street or the streets by which their lots are bounded, is so oppressive and unjust to the owners of corner lots as to justify the courts in declaring the same void,^ nor because it provides for a special tax upon contiguous property to pay the entire cost of the street improvement, except at street intersections and along a public park, without any provision therein, limiting the tax to the benefits received by the property. The amendment of 1895 to the city and village act does not abridge the powers of the council, but merely gives the property owner the right to have the ques- tion of benefits submitted to the jury if dissatisfied with the assessment.^" A provision in a contractor's bond that he will keep the pavement laid by him in repair for five years, and attached to the plans and specifications for a street pavement, forms no part of the plans and specifications adopted by and made a part of the ordinance.*^ After the adoption of an ordinance providing that the cost of making the assessment should be paid by the assessment, a statute 6 Walker v. People, 170 111. 410, loHuU v. People, 170 111. 246, 48 N. E. 1010. 48 N. E. 984. T Becker v. Hudson, 100 Ky. 450, " Cole v. People, 161 HI. 16, 43 9 Springfield v. Green, 120 111. N. E. 607; Rich v. People, 152 111. 269, 11 N. E. 261. 18, 38 N. B. 255. 351 § 402, 403 THE LAW OF SPECIAL ASSESSMENTS. providing that such expense should be paid from the general fund took effect. The illegal item was deducted, and the roll as recast was confirmed, after notice. The court having jurisdiction, there was no error in the proceedings.^^ 402. Where a special assessment ordinance fails to make the first installment include all fractional amounts, leaving the remaining installments equal in amount and multiples of $100, as required by statute, such failure will not render the assessment void, nor will the objection be heard for the first time on appeal.'* Where the cost of certain work not provided for in the ordinance relates merely to the matter of repairing a small portion of an intersecting street, the cost of such work may be rejected and the assessment reduced accordingly, without declaring the entire ordinance void.-'* Under a street improvement ordinance in respect to a portion of which it omits to provide for any levy or assessment, the mere fact of such omission will not invalidate a levy or as- sessment which is provided for in respect to other and dis- tinct portions of the improvement proposed — as, if it be proposed to pave certain streets and alleys, but the ordinance provides for a levy only for the paving of the streets, that levy will be good ; "* nor is a similar one void because a provision therein requiring the sale of the old paving blocks to the highest bidder was not complied with.'® Sufficiency of description. 403. Inasmuch as the ordinance, which is the foundation for the assessment, must describe the work to be done, it laMcChesney v. Chicago, 205 is Royal Ins. Co. v. South Park m. 528, 69 N. E. 38. And see, Comr's, 175 111. 491, 51 N. E. 558. Gage V. People, 207 111. 377, 69 N". Legislative authority for assess- E. 840. ment. isDelamater v. Chicago, 158 111. Where authority to impose spe- 575, 42 N. E. 444. cial assessments by a municipality 1* Shannon v. Hinsdale, 180 111. is neither conferred by its charter 202, 54 N. E. 181. in express terms, nor derived by 15 Wilbur V. Springfield, 123 111. necessary implication therefrom, a 395, 14 N. E. 871. municipal ordinance directing such. 352 THE. OEDINANCE. § 404 "will not, if made for paving a street, authorize an assess- ment for paving only part of it, and the property owners cannot properly be assessed for the cost of v/ork not intended to be done.^'' Where it improperly describes the terminus of a street improvement, an objection for that cause is avail- able on application for judgment of confirmation, but too late on application for judgment of sale.^® And where such termination is described as the " north curb line " of a certain street, and the location of that line can be definitely determined neither by the ordinance, nor the maps and plans accompanying it, it is insufficient.^* But such in- sufficiency may be cured, where there is an uncertainty as to the roadways of intersecting streets, by a general ordinance fixing the vsddth of sidewalks in streets of certain width, thus showing the width of the roadways therein.^" An ordi- nance opening a street 50 feet wide, with sides parallel, will not authorize one side to vary from 50 to 60 feet in width from the other because the city in some instances took whole lots and not parts. ^' And where work has been largely done by private individuals prior to an assessment therefor, an ordinance providing for the making of the improvement " except such portion as has already been done in a suitable manner," is not sufficiently definite.^* Grade ordinances. 404. An ordinance fixing the excavation of the street at the center at a certain number of inches " below the estab- lished street grade," the excavation of the side lines being of greater depth, but similarly described, is sufficiently specific.^* So, too, is one fixing the grade at certain heights imposition is void. Mayor, etc., v. 20 Topliflf v. Chicago, 196 111. Weeks, 104 La. 489, 29 So. 252. 215, 63 N. E. 692. 17 St. John V. E. St. Louis, 136 21 Taylor v. Bloomington, 186 111. 207, 27 N. E. 543. 111. 497, 58 N. E. 216. isSteenberg v. People, 164 111. 22 L. S. & M. S. R. Co. v. Chi- 478, 45 N. E. 970. cago, 56 111. 454. 19 Sanger v. Chicago, 169 111. 23 Cramer v. Charleston, 176 111. 286, 48 N. E. 309. 507, 52. N. E. 73. 23 353 § 404 THE LAW OF SPECIAL ASSESSMENTS. above low-water mark which is capable of identification, '^^ and one for paving which refers to the established grade,'*' nor does it invalidate one as requiring a reference to matters dehors the record to fix a grade measured from the " plane of low water in Lake Michigan of A. D. 1847." ^'^ If that part of a city ordinance for grading a street which provides for payment of the work, be invalid, that portion of it which directs the work to be done and contract for same entered into, may be valid, and mandamus may lie to compel a proper levying of a tax.^'^ If there be in existence an ordinance defining the manner of grading a street, an ordi- nance directing the city engineer to have a certain street graded according to law, is valid.^* The failure of an ordi- nance to designate the grade of a street, and whether it is to be paved or not, will not render it invalid where the amount to be apportioned upon the property benefited is free from doubt. ^* An ordinance providing for the " grad- ing " of a certain street sufficiently authorizes " grading, grubbing, guttering and curbing.*" Where the charter makes the cost of grading and improving streets charge- 24 Mead v. Chicago, 186 111. 54, suflScient depth to make a smooth 57 N. E. 824. top and solid surface, after having 25 Claflin V. Chicago, 178 IlL been wet and thoroughly rolled — 549, 53 N. E. 339. are sufficiently specific. Gross v. Provisions in a street paving or- People, 172 111. 571, 50 N. E. 334. dinance that the center thirty feet seGivins v. Chicago, 186 111. of the street designated in the par- 399, 57 N. B. 1045; Chicago Ter. ticular ordinance should be brought Tr. Co. v. Chicago, 184 111. 154 to a uniform grade, under the di- 56 N. E. 410; Hardin v. Chicago, rection of the engineer in charge, 186 HI. 424, 57 N. E. 1048. excavated to a uniform grade, 27 State v. Portage, 12 Wis. 562. under the direction of the engineer 28 Moran v. Lindell, 52 Mo. 229. in charge, excavated to a certain 2» Pearson v. Chicago, 162 111. depth at the center and sides, par- 383, 44 N. E. 739. Washington tieularly stated, and then covered lee Co. v. Chicago, 147 111. 327, 37 with broken stone of the kind, size Am. St. Rep. 222, 35 N. E. 378, and quality described in the speci- distinguished, fications to a depth stated, and the so Spokane v. Brown 8 Wash, road-bed covered with a top dress- 317, 36 Pac. 26. ing of fine limestone screenings of 354 THE OEDINANCB. § 405 able in whole or in part to the lota abutting thereon, the proceedings must comply with the charter requirements, and an ordinance which does not comply therewith, and does not charge the abutting lots with the cost of grading and filling, in whole or in part, is void, and the city is liable for the injuries caused by its action under such void ordinance.*^ Where it fails to fix the grade at a certain point, it will not be insufficient if the grade at that point can be determined by mere mathematical calculation.*^ And if both ordinance and estimate are silent as to " filling," it will be presumed none is necessary.®* Paving ordinances. 405. An ordinance is not void on collateral attack as providing for street repairs by special taxation, because of a provision in the contract filed with the plans and specifica- tions, but forming no part thereof, that the pavement shall be kept in repair by the contractor for five years, and it is no defense in the collateral proceeding to obtain judgment for a delinquent special tax.** And where in estimating the cost of an improvement, the expense of keeping same in repair was not taken into consideration, a provision in the ordi- nance that the contractor shall keep the pavement in repair for two years, without extra compensation, is a guaranty that the work is properly done, and does not invalidate the ordinance.*' A city ordinance authorizing the paving of a street with asphalt and providing that in the gutters and other parts of streets where the city engineer deemed it ad- visable, vitrified brick might be used, is not invalid as siDrummond v. Eau Claire, 79 eral, Guyer v. Eock Island, 215 111. Wis. 97, 48 N. W. 244. 144, 74 N. E. 105; Chicago Union 32 Chicago Union Tr. Co. v. Chi- Tr. Co. v. Chicago, 207 111. 544, eago, 215 111. 410, 74 N. E. 449. 69 N. E. 849. 33 Givins v. Chicago, 186 111. si Cole v. People, 161 111. 16, 43 399, 57 N. E. 1045; Hardin v. Chi- N. E. 607. cago, 186 111. 424, 57 N. E. 1048. sb Latham v. Wilmette, 168 111. And see, as to sufficiency in gen- 153, 48 N. E. 311. 355 § 406 THE LAW OF SPECIAL ASSESSMENTS. being a delegation of power reserved to the common coun- cil.** And it is no valid objection to an ordinance pro- viding for street paving by special taxation, that it also provides for curbing on each side of the street to be in- cluded in the estimate of the expense of the improvement ordered, as such curbing may be deemed part of the pay- ment.*'' The same may be said of a repaving ordinance which did not provide for paving between the tracks of a street railway company when the charter of the latter re- quired it to keep such portion of the street in repair, and that it should be assessed its proportion for the cost of repaving. The obligation of the company is to keep the street in repair, and not to repave it with a new and different, and perhaps more costly material.*® 406. An ordinance for paving several streets and alleys, and parts of streets with the same material and in the same manner, is not obnoxious to the objection that it embraces more than one improvement, although there may be a diff- erence in the width of the streets to be paved.** One pro- viding that a street, in the city of E., from the west line of M. avenue to the east line of W. avenue, in said city, be paved, fixes the precise designation of the locality within the city, without resort to presumption or intendment; *** and one for paving and curbing of an entire street for a designated dis- tance is not void as failing to specify the width of the street.*' 88 Mayor etc. v. Stewart, 92 Md. council. Mayor etc. v. Stewart, 92 535, 48 Atl. 165. Md. 535, 48 Atl. 165. sTEnos V. Springfield, 113 111. Query: But is not this a ques- 65. tion of fact, reviewable by the Objection that present pavement courts for fraud, mistake or op- sufjlcient. pressive action? An objection that a street or- S8 Mayor etc. v. Scharf, 54 Md. dered to be paved with asphalt is 499. already sufficiently paved with cob- S9 Adams Co. v. Quincy, 130 111. blestones and needs no other pave- 566, 6 L. R. A. 155, 22 N. E. 624. ment, is untenable, since the pro- *o Sargent v. Evanston, 154 III. priety or necessity for the new 269, 40 N. E. 440. pavement is a matter entirely 4i People v. Markley, 166 111. 48, within the discretion of the city 46 N. E. 742. 356 THE OBDINANCB. § 407 The title o£ a city ordinance authorizing the repaying of a street with asphalt does not violate the provisions of the char- ter declaring the subject of every ordinance shall be expressed in its title, when the body of the ordinance contains a proviso permitting the use of vitrified brick in the gutters and other portions of the street deemed desirable by the cily en- gineer.*^ It is not necessary to constitute a local improve- ment that the old material of the street should be entirely re- moved, and replaced by material of a different character; and an ordinance providing that a macadamized road-bed shall be scraped, cleaned, filled and rolled so as to present an even surface, and that a new coating of niacadam six and one- half inches thick shall be placed thereon, provides for a local improvement, and not repair.*^ The purpose of a provision in a street paving ordinance concerning the grade of the street is that an intelligent estimate can be made of the cost of grading and filling.** 407. Ordinances containing the following provisions have been sustained as being sufficiently specific: As to width of pavement, when it provides that the street shall be improved to the width of thirty feet, states the thick- ness of the curb and width of gutter flag, and that the road-bed between shall be paved with asphalt ; *' as to the width of the improvement on intersecting streets, by direct- ing the macadamizing of the central twenty-seven feet of the street and the central twenty-seven feet of the intersecting streets to the outer line of such street ; ** as to the width to be paved and the location of the curb stones, when the ordi- nance provides generally for paving and curbing a street of known and fixed width, as the pavement in such case wiU be understood to fill the space between the sidewalks ; " as « Mayor etc. v. Stewart, 92 Md. *5 Lehmers v. Chicago, 178 111. 535, 48 Atl. 165. 530, 53 N. E. 394. *3 Field V. Chicago, 198 111. 224, *« Shannon v. Hinsdale, 180 III, 64 N. E. 840. 202, 54 N. E. 181. « Gross V. People, 172 HI. 571, " Dickey v. Chicago, 164 111. 37, 50 N. E. 334. 45 N. B. 537. 357 § 407 THE LAW OF SPECIAL ASSESSMENTS. to the width of the pavement, where the ordinance provides for paving a street " excepting a space sixteen feet in width in the middle of said street," the width of the street being shown hy the recorded plat, and the width of the sidewalks having heen fixed by a prior ordinance ; *^ as to the descrip- tion of the termini, when the paving ordinance reads " from the south line of the street railway right of way on H. Street to the north line of the street railway right of way on T. Street," the street railway tracks being laid in the street, and the ordinances under which they were laid specifying the requisite details ; *^ as to the standard of shale to be used, where the paving brick is required to be " of pure shale, of equal quality to that found in Galesburg, Glen Carbon and Streator, in the state of Illinois, and Canton, in the state of Ohio ; " ^*' the use of the words " not less than," in a paving ordinance, describing dimensions, as, " not less than seven inches of sand," " a finishing coat not less than one- half inch thick ; " ** that the brick shall be firmly settled by a roller of certain weight, or, a paving ram, at the en- gineer's discretion, in the requirements for laying a brick pavement; ®^ a street paving ordinance requiring the pave- ment to conform to the established grade as fixed in an ordi- nance " now on file in the office of the city clerk ; " ^* where a street is to be paved with brick, to be laid on a foundation of cinders, sand, gravel, " or other material equally suit- able," and where the estimate of cost shows that cinders are to be used, the words quoted may be rejected as surplusage.^* " Paved with Trinidad sheet asphaltum, according to specifi- cations in the office of the city engineer," is a sufficiently <8 Woods V. Chicago, 135 111. =2 Trimble v. Chicago, 168 111. 582, 26 N. E. 608. 567, 48 N. E. 416. 49 Rawson v. Chicago, 185 IlL 53 C. & N. P. B. Co. v. Chicago, 87, 57 N. E. 35. 172 111. 66, 49 N. E. 1006. EoHintze v. Elgin, 186 111. 251 54 Jacksonville R. Co. v. Jack- 57 N. E. 856. sonville, 114 111. 562, 2 N. E. 478. 51 Latham v. Wilmette, 168 111. 153, 48 N. E. 311. 358 THE. OKDINAWCE. § 408 definite description in an ordinance prescribing the ma- terials of a street improvement.^^ The width of a pavement need not be specified when shown by the plat,®® nor need a former grade ordinance referred to, be recited, or the fact that it is on file in the office of the clerk."'' Curb ordinances. 408. In an ordinance for a street improvement, the precise thickness of curbstones, and their depth, need not be given, where the minimum thickness and depth is pro- vided for. 'Not need the nature of the stone nor manner of dressing it be precisely given. An ordinance may lack desirable precision, and still may so provide for the manner in which an improvement shall be made, and be such a com- pliance with the law, although a loose one, that the courts would not be authorized to invalidate the action of the city officers under it.®* Failure to describe " flat stones " upon which the curb is to be bedded does not avoid the ordinance so that it is subject to collateral attack,"® nor because the kind of stone and its thickness and width are not prescribed, as such details may properly be left to the city engineer.®*' An ordinance which fixes the height of the curb at the back and from the inside of the gutter at certain points, and pro- viding a uniform slope between such points ; one which fixes the top of the curb at the established grade of the street ; and one for curbing " on either side " (meaning both sides) of a certain street, is sufficient.®^ 55 Barber Asphalt Paving Co. v. 67 Shannon v. Hinsdale, 180 111. Ullman, 137 Mo. 543, 38 S. W. 202, 54 N. E. 181; McChesney v. 458. See, also, on the general Chicago, 205 111. 611, 69 N. E. 82. question of sufficiency, McChesney 58 Sheehan v. Gleeson, 46 Mo. V. Chicago, 205 111. 611, 69 N. E. 100. 82 ; Gage v. Chicago, 207 111. 56, 59 Johnson v. People, 189 111. 83, 69 N. E. 588. 59 N. E. 515. 56 Harrison v. Chicago, 163 111. 6o Board of Councilmen v. Mur- 129, 44 N. E. 395. See, also. Perry ray, 99 Ky. 422, 36 S. W. 180. T. People, 206 111. 334, 69 N. E. 63. «i Mead v. Chicago, 186 111. 54, 359 § 409 THE LAW OF SPECIAL ASSESSMENTS. Sidewalk ordinances. 409. The failure of an ordinance to specify the kind of stone to be used in a cross-walk is immaterial, it being shown that the word " stone " has a well understood and es- tablished local meaning as being " limestone," and the specifi- cation that they shall be of " not less than " certain di- mensions is sufficiently specific.^ ^ The engineer of a city having charter authority to provide by ordinance for lay- ing and maintaining sidewalks, has no authority to order a sidewalk to be laid except pursuant to an ordinance.®* An ordinance for constructing a sidewalk on both sides of a street is not invalid as embracing two separate and distinct local improvements.®* Where one section provided for con- structing a sidewalk- " on both sides of Sixty-fifth . . » from," etc., and another section of the same ordinance pro- vides for the construction on both sides of " Sixty-fifth Street," etc., it is sufficiently specific.^® The same may be said of an ordinance which provides that a street shall be " improved by graveling in street, brick sidewalks and paved gutters," according to specifications to be prepared by the city engineer, for advertising for bids and the assessment of abutting property, and it is sufficient to authorize the letting of a contract for doing the work.** One which pro- vides for a cinder, cement, concrete, torpedo sand, and lime- 57 N. E. 824; Lehmers v. Chicago, People, 164 111. 611, 45 N. E. 976, 178 111. 530, 53 N. E. 394; C. & N. distinguished. P. R. Co. V. Chicago, 172 111. 66, oa Louisiana v. Miller, 66 Mo. 49 N. E. 1006. And see. Fay v. 467. Chicago, 194 111. 136, 62 N. E. 6* Watson v. Chicago, 115 111. 530; White v. Chicago, 188 111. 78, 3 N. E. 430. See, also, as to 392, 58 N. E. 917; Hackworth v. ordinance not being void as pro- Louisville etc. Co., 106 Ky. 234, 50 viding for two kinds of sidewalks, S. W. 33 ; Chicago v. Sherman, 212 Gage v. Chicago, 196 111. 512, 63 111. 498, 72 N. E. 396; Guyer v. N. E. 1031. Rock Island, 215 111. 144, 74 N. E. 85 McChesney v. Chicago, 173 111. 105. 75, 50 N. E. 191. 82 Shannon v. Hinsdale, 180 111. 6 8 Ross v. Stackhouse, 114 Ind. 202, 54 N. E. 181. Mansfield v. 200, 16 N. E. 501. See, also, Hy- 360 THE OBDINANCE. §§ 410, 411 stone walk covers a resolution and estimate for a " cement sidewalk." " — — Waterworks ordinances. 410. An ordinance for a connected system of water- works for a whole village provides for but one local im- provement, and is not invalid as embracing separate and dis- tinct improvements, although it provides that the reservoirs and works shall be paid for by general taxation, while the mains are to be paid for by local assessment;®^ nor is one which provides for laying water-pipe in certain streets be- cause of the fact of the existence in some of the streets of the pipes of a private company.®* Sewer ordinances. 411. Where a city ordinance providing for constructing sewers also provides that the council may order them con- structed by resolution, and the resolution is passed, it is sufficient,'"' and when the council has under the charter power to lay dovra necessary sewers, and charge their cost to the property directly benefited, it is unnecessary that the council shall first declare by ordinance that the sewer is necessary, or create a taxing district to be charged vsdth the man v. Chicago, 188 111. 462, 59 N. hydrants and water-mains," will E. 10, and for a case holding the not be held void as being uncer- ordinance not uncertain as to tain as to whether the construction depth of sidewalk, see Gage v. Chi- of a standpipe, engine house and cago, 196 111. 512, 63 N. E. 1031. other general improvements was B' Storrs V. Chicago, 208 111. contemplated, where all action 364, 70 N. E. 347; Gage v. Chi- taken under the ordinance clearly cago, 196 111. 512, 63 N. E. 1031. shows that it was understood as 68 People V. Sherman, 83 111. limiting the special assessment to 165; Hughes v. Momence, 163 111. the local improvement alone. 535, 45 N. E. 300; Harts v. Peo- O'Neil v. People, 166 111. 561, 46 pie, 171 111. 458, 49 N. E. 538. N. E. 1096. An ordinance to raise money by 69 Hughes v. Momence, 163 III. special assessments to pay for a 535, 45 N. E. 300. " connected system of water works, to Grinnell v. Des Moines, 57 with the necessary reservoirs, fire Iowa, 144, 10 N. W. 330. 361 § 412 THE LAW OF SPECIAL ASSESSMENTS. cost of construction.''^ An ordinance for an outfall sewer, which provides for the use and benefit of the same by all property owners obtaining permission to make connection therewith, is not objectionable as granting, away the police power of the city, as it may still regulate the manner of making such connections and to abate any nuisance which might be created.''^ It is not a valid objection to the con- firmation of a sewer assessment that future legislation will be necessary before non-abutting property will be benefited, where the ordinance provides that all property in the district may drain into the sewer.''* An ordinance for the construc- tion of a sewer is not made unreasonable by a provision there- in for " house connection slants every twenty feet on each side of the sewer," where there is no proof that such a pro- vision is oppressive or unreasonable,''* nor for one such slant to each lot, tract or parcel of land, and allowing all owners of the lots, tracts or parcels of land, and all unsubdivided lands lying within the drainage limits, to be entitled at all times to the use and benefit of the sewer ; '"^ nor does such an ordinance amount to a subdivision of the abutting prop- erty into twenty-foot lots, where the assessment is made against the property by its legal description,''® nor need its caption state that the purpose of the ordinance, in part, is to provide for house connections.^^ 412. In the following cases, objections that the ordinance was invalid as providing for a double improvement was de- clared untenable : Authorizing the laying of sewers in sev- 71 Strowbridge v. Portland, 8 Or. 'o Gage v. Chicago, 195 111. 490, 67. 63 N. E. 184. '2 Gray v. Cicero, 177 111. 459, 76 Vandersyde v. People, 195 111. 53 N. E. 91. 200, 61 N. E. 1050, 62 N. E. 806; 73 Walker v. Chicago, 202 111. Chicago v. Corcoran, 196 111. 146, 531, 67 N. E. 369. 63 N. E. 690. 74 Vandersyde v. People, 195 111. 77 Hinsdale v. Shannon, 182 111. 200, 61 N. E. 1050, 62 N. E. 806; 312, 55 N. E. 327. Walker v. Chicago, 202 111. 531, 67 N. E. 360. 362 THE OEDINANCB. § 413 eral different streets ; ''* for tlie construction of a main sewer witli branches ; ^® for the construction of a sewer and pro- viding for manholes ; *** for an outlet into a previously con- structed sewer running at right angles therewith, and when the first sewer runs in each direction from the outlet of the new sewer; *^ where it becomes necessary to establish pump- ing works in connection with a sewerage system, and pay for the same by special assessment.*^ 413. Where the charter requires that the size of a sewer to be constructed be prescribed by ordinance, but contains no such requirements as to inlets, manholes, nor material of construction, they may be regarded as matters of detail not necessary to be specifically set forth in the ordinance.*^ This is undoubtedly the general rule, but contrary to the Illinois statute to which reference has been hereinbefore made, but the following Illinois cases, upholding the suffi- ciency of the ordinance, are in point : Where the ordinance gives the dimensions of a wall for strengthening a sewer out- fall, the size and quality of the stone need not be specified therein ; ** the requirements that the sewer be " cylindrical in shape, shall be two feet internal diameter and constructed with a single ring of sewer brick laid edgewise," makes suffi- ciently certain the thickness of the sewer wall, the manner of laying the bricks and their size and quality ; *^ where the sewer is to be constructed of vitrified tile-pipe of a certain internal diameter, the thickness of the pipe need not be specified ; *® that certain manholes and catch-basins shall be located as " designated," and that the brick-work shall be 78 Beach v. People, 157 111. 659, 82 Drexel v. Lake, 127 111. 54, 20 41 N. E. 1117; Walker v. People, N. E. 38. 170 111. 410, 48 N. E. 1010. ss St. Joseph v. Owen, 110 Mo. 79 Payne v. South Springfield, 445, 19 S. W. 713. 161 111. 285, 44 N. E. 105. si Bickerdike v. Chicago, 185 111. so Steele v. River Forest, 141 111. 280, 56 N. E. 1096. 302, 30 N. E. 1034. ss Peters v. Chicago, 192 111. 81 Church V. People, 179 111. 205, 437, 61 N. E. 438. 53 N. B. 554. se Hynes v. Chicago, 175 111. 56, 51 N. E. 705. 363 § 414 THE LAW OF SPECIAL ASSESSMENTS. done under the supervision of the department of public works, is sufficiently specific to satisfy the local statute ; ^'^ where from the entire ordinance the starting point of a sewer can be fixed and its depth at that place ascertained ; ®^ where it is provided that the sewer shall be two feet inside diame- ter, etc., with necessary manholes and inlets for surface drainage, etc., the location of the manholes is sufficiently certain.** 414. An ordinance providing for a connected system of drains and sewers, specifying the various streets to be im- proved, the grade of the sewer of each street, its internal dimensions, materials of which to be constructed and the character of the work in detail, and which in addition ex- pressly approves the plans, specifications, maps and profiles on file with the Clerk, is not void for uncertainty ; *" and if it specifies the number of manholes and catch-basins, their di- mensions, material, and construction, is not invalid for in- sufficiency of description of the improvement, though the places at which they are to be located are not designated; ®^ the failure to give the radii of three curves between two points is without effect, where the curves are for short distances, adapted to the purposes of the sewer, and can properly be located in one way only, from the whole ordinance taken together.®^ A sewer ordinance is not invalid because it fails to provide an outlet,'^ nor because the outlet is insufficient.** 8T Springfield v. Mathus, 124 Dl. 161 HI. 285, 44 N. B. 105; Cochran 88, 16 N. E. 92; Barber v. Chicago, v. Park Eidge, 138 111. 295, 27 N. 152 111. 37, 38 N. E. 253. E. 939. The case of Pearce v. Hyde 88 Steele v. River Forest, 141 111. Park, 126 111. 287, 18 N. E. 824, is 302, 30 N. E. 1034. quite broad, and is perhaps the 89 Springfield v. Mathus, 124 111. leading case in Illinois as to what 88, 16 N. E. 92; Rich v. Chicago, is a sufScient description. See, 152 111. 18, 38 N. E. 255; Barber also, Smythe v. Chicago, 197 111. V. Chicago, 152 111.37,38 N. E. 253. 311, 64 N. E. 361; Duane v. Chi- 90 Walker v. People, 170 111. 410, eago, 198 111. 471, 64 N. E. 1033 ; 48 N. E. 1010. Walker v. Chicago, 202 111. 531, 67 91 Walker v. People, 166 111. 96, N. E. 369; Kimble v. Peoria, 140 46 N. E. 761. 111. 157, 29 N. E. 723. 92 Hyde Park v. Borden, 94 111. 26. 94 Bickerdike v. Chicago, 185 111. 93 Payne v. South Springfield, 280, 56 N. E. 1096. 364 THE OEDINANCE. §§ 415, 416 licralidity — In general. 415' It is elementary that an ordinance must comply witli the statute, or it will he held void ; ^^ hut matters fairly included in general terms are within the description.*^ Where the statute requires the passage of an ordinance, and the work is done under a resolution or an invalid ordinance, no lien is created against the property assessed, the assess- ment heing absolutely void.*'' But the fact that the assess- ment was made on an improper basis will not work a for- feiture if the liability of the abutting owners can be correctly ascertained, and their liability limited to that amount®^ And it is a well settled principle, applicable to by-laws and ordinances, that if there be a provision relating to one sub- ject matter which is void, and as to another which is valid, it may be enforced as to the valid portion, the same as if the void part had been omitted, where the two are not necessarily or inseparably connected.** An ordinance increasing the es- timate of cost after a public hearing, without any public hear- ing as to such increase, is void.^ 416. Where the improvement is of such nature that it cannot be described in the ordinance, but must depend on the exigencies of construction, it is one that cannot be made by special assessment.^ The general principle of law that delegated powers cannot be delegated, applies with full force to special assessments. Thus, where the charter requires an improvement ordinance shall be referred to the commission- ers of an assessment and a city surveyor not interested in the improvement, and it is referred to the commissioners Catch hasins. See Gage v. Chi- 565, 15 Atl. 529; Pells v. Paxton, cago, 216 111. 107, 74 N. E. 726. 176 111. 318, 52 N. E. 64. »5 Shreveport v. Prescott, 51 La. ss Kelly v. Chadwick, 104 La. An. 1895, 46 L. R. A. 193, 26 So. 719, 29 So. 295. 664; Zelie v. Webster City, 94 »9 Wilbur v. Springfield, 123 111. Iowa, 393, 62 N. W. 796. 395, 14 N. B. 871. 96 People V. McWethy, 177 111. i Chicago v. Walsh, 203 111. 318, 334, 52 N. E. 479. 67 N. E. 774. 97 State V. Dunellen, 50 N. J. L. 2 Lundberg v. Chicago, 183 111. 572, 56 N. E. 415. 365 §§ 417, 418 THE LAW OF SPECIAL ASSESSMENTS. only; and where the responsibility of deciding what im- provements shall be made is vested in the council, and an ordinance undertakes to vest such discretion in the board of public works, in both cases the ordinances are void.* So specifications made part of a paving ordinance by reference render it invalid where they empower the engineer, in his discretion, to make changes which increase or diminish the expense of the improvement, to determine the value of such alterations, and add to or deduct same from the contract prices,* as well as in a case where raised crossings are to be laid at all street intersections, " and at such other places as the board may deem necessary." ® 417. An ordinance requiring the employment of union labor only, upon public improvements, is unconstitutional and void, being an unjust discrimination between classes of citizens, which restricts competition and increases the cost of the work.* But an ordinance which is invalid as limiting the time of men employed at public work to eight hours a day, is no defense to an application for sale where the record .fails to show that anything was done imder such ordinance.''^ An assessment for a local improvement is invalid where the estimate of the cost does not appear to have been made under the ordinance authorizing such improvement, but under some former ordinance ; * and an ordinance passed after the work will not authorize the levy of a special assessment to pay for such improvement.® 418. Under the Illinois statute the ordinance must spe- cify the nature, character and locality of the proposed im- 8 State V. Bayonne, 49 N. J. L. den v. Alton, 179 111. 318, 53 N. B. 311, 8 Atl. 295; FosB v. Chicago, 556; Adams v. Brenan, 177 111. 56 111. 354; Walker v. Chicago, 62 194, 42 L. E. A. 718, 69 Am. St. 111. 286. Rep. 222, 52 N. E. 314. 4 Bradford v. Pontiac, 165 111. f Fiske v. People, 188 111. 206, 612, 46 N. E. 794. 52 L. R. A. 291, 58 N. E. 985. B De Witt Co. V. Clinton, 194 111. s Clark v. Chicago, 152 111. 223. 521, 62 N. E. 780. » Conn. Mutual L. Ins. Co. v. eFiske v. People, 188 111. 206, Chicago, 185 111. 148, 56 N. E. 52 L. R. A. 291, 58 K E. 985; Hoi' 1071. 366 THE OKDINANCE, § 418 provement, or it is defective, and the special assessment based thereon will be invalid.^" Where the requirements of the charter are to the effect that a public improvement may be ordered only after a petition therefor, and providing who may sign, not only are all subsequent proceedings void in cago, 147 111. 327, 37 Am. St. Rep. 222, 35 N. E. 378. Failure of an ordinance to spe- cify the nature, character and lo- ity of the improvement, either within its own four corners or by reference to maps, plats, plans, profiles or specifications on file in the office designated by the statute, affords no jurisdiction or author- ity to confirm the assessment. Al- ton V. Middleton's Heirs, 158 111. 442, 41 N. E. 926. An ordinance which fails to suffi- ciently specify the nature, charac- ter and description of a proposed improvement, but leaves the same largely to be determined by the department of public works is void, as clothing such department with discretionary powers vested in the council. Cass v. People, 166 111. 126, 46 N. E. 729; People v. Hurford, 167 111. 226, 47 N. B. 368. An ordinance providing for the erection of " thirty-two lamp posts and two lamp post connections," which does not specify the mate- rial of which the posts are to be made, nor the character of the light to be used or connections to be furnished, is insufficient and in- valid. The provision of the statute that an ordinance for a local improve- ment to be paid for by a special assessment must specify the na- ture, character, locality and de- scription of the improvement, is 10 A city ordinance for a local improvement to be paid by a spe- cial assessment, is fatally defective if it fails to describe the nature und character of the proposed im- provement. It is not sufficient that it refer to specifications on file in a public office as showing the na- ture and character of the improve- ment, as that is not made a source of information. Sterling v. Gault, 117 111. 11, 7 N. E. 471. An ordinance for the making of a local improvement to be paid for by special assessments which fails to specify the nature, character, lo- cality and description of the pro- posed improvement with sufficient certainty, is defective, and special assessments based thereon will be invalid. Hyde Park v. Spencer, 118 111. 446, 8 N. E. 846; Hyde Park V. Carton, 132 111. 109. An ordinance for a local im- provement by special assessment must describe the improvement contemplated; and if that descrip- tion show an attempt to do some- thing which there is no authority for doing, the ordinance is void on its face. Maywood Co. v. May- wood, 140 111. 216, 29 N. E. 704. An ordinance which gives no basis or data from which an esti- mate of the cost of the proposed improvement can be made, in ac- ■cordanee with the statute, to be ap- portioned among and upon the property benefited is fatally defec- tive. Washington Ice Co. v. Chi- 367 § 418 THE LAW OF SPECIAL ASSESSMENTS. the absence of such petition, but the signatures must be properly given and in accordance with the statute, and the record must affirmatively show a compliance with all such requirements.^^ Where a special assessment is illegal be- cause of the invalidity of the ordinance under which it is made, such defect cannot be cured by a new assessment and report under such invalid ordinance.-'^ The legal passage of the ordinance is a condition precedent to any further pro- mandatory. Otis V. Chicago, 161 111. 199, 43 N. K 715. The ordinance is the basis for the estimate of cost, and if the or- dinance fails to sufficiently specify the nature, character, locality and description of the improvement, neither the original estimate nor a subsequent one can be sustained. Paxton V. Bogardus, 201 111. 628, 66 N. E. 853. Illinois. 11 Where the charter provides that an improvement may not be ordered without a petition by a majority of the property owners to be assessed, except by a vote of at least three-fourths of the aldermen present, to be recorded on the jour- nal by ayes and noes, and the record does not show a compliance with such provisions, the ordinance and all proceedings thereunder are void. Rich v. Chicago, 59 111. 286. A petition by a city for an as- sessment for a public improvement does not comply with the statute requiring a recital of the ordinance for the proposed improvement by setting out a certified copy of the report of the commissioner of pub- lic works submitting to the council the draft of the ordinance provid- ing for such improvement, without anything to indicate that such or- dinance was passed. Hull v. Chi- cago, 156 111. 381, 40 N. E. 937. An ordinance based on a petition by abutting owners under a statute requiring the signature of a major- ity of the owners is void where the unauthorized signatures of parties- as owners of abutting property must necessarily be included so as to obtain a majority of property representation. Merritt v. Ke- wanee, 175 111. 537, 51 N. B. 867> Iowa. Where an ordinance provides the manner in which the sufficiency of a petition shall be ascertained, and the procedure for authorizing, such improvement by the council, a departure from the methods pre- scribed in the ordinance will inval- idate the assessment made to pay for the improvement. Hager v. Burlington, 42 Iowa, 661. Kentucky. Where the charter provides that a street improvement may be or- dered only after a petition there- for, an ordinance for such im- provement, not based on a peti- tion, is void, and no lien for the expense of the work attaches to the property fronting on the streets Covington v. Casey, 3 Bush. 698. 12 Chicago V Wright, 80 111. 579. 368 THE OBDINANCE. §§ 419, 420 cedure, as it is the ordinance which is the basis of jurisdic- tion. 419. An ordinance, not for making a public improve- ment, but for levying a special tax for one after its com- pletion, is void, and cannot furnish the basis of such taxation. Until an ordinance is passed for the making of the improve- ment, no expense can be incurred which can become a charge on the property owner, ^* and an amendatory ordinance, passed after the question of the validity of the original ordinance was submitted to the court and taken under ad- visement, is ineffectual.^* The appointment of viewers or appraisers before the adoption of an ordinance providing how the assessment should be made, is fatally defective to the assessment, and cannot be cured by a subsequent ordinance.-"* Where a contract made under authority of an ordinance be- comes forfeited for failure to perform on time, a subsequent ordinance approving the contract in all its terms does not thereby validate the tax bills issued to pay for the work, time being of the essence of the contract*® 420. The question of the proper basis for special assess- ment has frequently come up for consideration when the validity of ordinances providing for assessing the cost di- rectly upon the property, without any consideration or in- quiry as to benefits, were being investigated, and the va,- rious courts have been largely controlled in their opinions by their former decisions. The overwhelming weight of au- thority is to the effect that an ordinance which excludes the consideration of benefits is invalid, and all subsequent pro- ceedings are void.*^ 13 Carlyle v. Clinton Co., 140 Illinois. 111. 512, 30 N. E. 782. i7 An ordinance assessing the en- 1* Western Springs v. Hill, 17T tire expense of a street improve- Ill. 634, 52 N. E. 959. ment upon the property fronting 15 Scranton v. Barnes, 147 Pa. on the same, irrespective of actual St. 161, 23 Atl. 777. benefit, is unconstitutional and 16 Neill V. Gates, 152 Mo. 585, void. St. John v. E. St. Louis, 50 54 S. W. 460. 111. 92; Lamed v. Chicago, 34 111. 24 369 § 421 THE LAW OF SPECIAL ASSESSMENTS. 421. Where a statute requires that work involving an aggregate expenditure of more than $1,000 be let to the low- est bidder, an ordinance involving such an expenditure, au- thorizing it to be done in such manner as the commissioner 203; Ottawa v. Spencer, 40 111. 211. An ordinance requiring a speci- fied sum to be assessed on the property of a town, benefited by the improvement, without refer- ence to whether the property is benefited in an amount equal to the assessment, and without re- quiring it to be levied on the prin- ciple of equality of benefits and burthen, is void. Greeley v. Peo- ple, 60 111. 19. Under an ordinance for side- walk construction providing that it be paid for by special assess- ment " to the amount that it may be legally assessed therefor," and the balance to be paid by general taxation, the words "to the amount, etc.," are to be construed to mean the amount of benefit de- rived by the property from the improvement. Watson v. Chi- cago, lis 111. 78, 3 N. E. 430. Where an ordinance shows on its face an attempt to subject prop- erty to special taxation for a local improvement, which property will in no way be benefited by the im- provement, it will not sustain pro- ceedings for the levy of a tax therefore. Special taxes for local improvements are justified only on the ground that the subject of the tax receives an equivalent. Bloom- ington V. C. & A. R. Co., 134 111. 451, 26 N. E. 366. A city ordinance provided for a street pavement of various widths, 80 that the cost in front of the various lots was not uniform as to the entire length, to be paid for according to frontage by special taxation of contiguous property, except the street and alley inter- sections, which were to be paid for by general taxation. A subsequent amendment to the ordinance re- quired the tax to be levied upon contiguous lots according to front- age, " but only in proportion to the amount of the pavement in front of each of said lots, parts of lots, and parcels of land along the line of said improvement." The amendment, and proceed- ings under it, rendered the ordi- nance void. Davis v. Litchfield, 145 111. 313, 21 L. R. A. 563, 33 N. E. 888. Iowa. The repeal of a statute author- izing special assessments by the front foot operates upon a city ordinance authorizing assessments on that basis, and renders it eo i/n- stcmti void. Martin v. Oskaloosa (Iowa), 99 N. W. 557. Hedge v. Same; Ross v. Same. OMo. An ordinance providing that the cost of improving a street " shall be assessed upon all the lots and parcels of land benefited thereby, in proportion to the number of feet front in each," does not comply with the municipal code of Ohio, which rea^s, " For the payment of the costs of making said improve- ment, the council may by ordi- nance, levy and assess a tax on all 3Y0 THE OEDIWANOB. § 422 of public works " may deem expedient, and for the best in- terests of the city and for the property owners," and the work shall be done under a contract made with that officer, with- out public advertisement for bids, is void upon its face.^® Where proceedings for opening a street over plaintiff's lands have been set aside, an ordinance requiring abutting owners to grade the street in front of their respective lots, must also be set aside. ^® And a holding by the appellate court that an assessment ordinance is void in effect sets aside the assess- ment and renders the judgment of confirmation void; ^'^ and the objection that the ordinance is void is available on ap- plication for judgment.^^ Judgment confirming a special assessment payable in five installments instead of seven, as provided in the ordinance, is an error of substance, and prejudicial to the property owners ; "^ and judgment refusing sale of land for a delinquent installment of an assessment, on the ground that the ordinance was wholly void, is conclusive as to other installments.^* Where an ordinance as pub- lished contained an error in the size of the brick required, and afterwards the error was corrected by amendment, and the amendatory ordinance published the requisite number of times, it was unnecessary to republish the entire ordinance.** 422. General objections that an ordinance " does not specify the nature, character, locality and description of the proposed improvement," and that " said ordinance is void the lots and lands bounding or i» Meredith v. Perth Amboy, 63 abutting on the proposed improve- N. J. L. 523; 44 Atl. 1101. ment, such tax to be either in pro- 2» Murray v. Chicago, 175 111. portion to the foot front of the lot 340, 51 N. B. 654. and lands so bounding or abutting, 21 People v. Hurford, 167 111. or according to the value of such 226, 47 N. E. 368. lot or lands as assessed for tax- 22 Michael v. Mattoon, 172 111. ation under the general law of the 394, 50 N. E. 155. state, as may be entitled, and as 23Markley v. People, 171 111. the council may in each case de- 260, 63 Am. St. Rep. 234, 49 N. E. termine. Kelly v. Cleveland, 34 502. Ohio St. 468. 24 People v. Burke, 206 111. 358, IS Phelps V. Mayor, 112 N. Y. 69 N. E. 45. 216, 2 L. R. A. 626, 19 N. E. 408. 371 §§ 423, 424 THE LAW OF SPECIAL ASSESSMENTS. for uncertainty, insuflSciency and informality," are broad enough to include the ground that the ordinance was un- certain as to the description of brick to be used.'" Invalid grade ordinances. 423. A general ordinance establishing height of curb- stones on a paved street does not thereby fix the grade of the sidewalk,^® and a street grading ordinance which fails to comply with charter provisions is void,*^ Where it is pro- vided that a pavement be laid to conform to the established grade of the street, " as shown by an ordinance fixing the grade of said street now on file in the office of the city clerk," while prima facie sufficient in its description of the grade, it is yet fatally defective where it appears the ordi- nance so referred to was not then in existence ; and such de- fect cannot be cured by the subsequent passage of an ordi- nance fixing the grade.** A change of grade made under the provisions of a statute whereby railroads entering cities may elevate their tracks, must be confined to such limits as are necessary for the proper accomplishment of that purpose, and an ordinance which extends the lines of such change clearly beyond what is required by the alteration of grade at the point of railroad crossing is illegal.^® Invalid paving ordinances. 424. An ordinance providing that the entire cost of a pavement shall be assessed upon the abutting owners, and which includes the cost of paving a portion of the street which a railroad was bound to improve, is void, and no jurisdiction to proceed is acquired under such ordinance.^"' 26 Chicago V. Singer, 202 m. as c & N. P. R. Co. v. Chicago, 75, 66 N. B. 874. 174 111. 439, 51 N. E. 596. 2« Biggins' Estate v. People, 193 2» State v. Bayonne, 54 N. J. L. 111. 601, 61 N. E. 1124. 293, 23 Atl. 648. 2' Hall V. Chippewa Falls, 47 so American Hide & L. Co. v. Wis. 267, 2 N. W. 279; Drum- Chicago, 203 111. 451, 67 N. E. mond V. Eau Claire, 79 Wis. 97, 979. 48 N. W. 244. Where an ordinance for paving 372 THE OKDINANCE. § 424 An ordinance for the paving and curbing of a street sufficient- ly includes the adjustment of sewers necessary to guard against taking up parts of the work after it is finished,** but under charter authority to a council to order a street " graded and paved," there is no authority for enacting an ordinance for grading without paving.** An ordinance providing for the construction of a brick pavement is not repugnant because it requires the surface of the concrete pavement upon which the bricks are to rest, to be " parallel with the surface of the foundation pavement," and also for six inches of sand and brick above such pavement as the words " parallel with the surface," do not mean level therewith.** A statute provid- ing that no street shall be paved at the expense of abutting owners, " unless the ordinance for such improvement shall have been passed by a vote of two thirds of all the members of each branch of councils," is not merely directory, but a limitation on the power of the councils; and unless the ordinance is so passed, recovery for the cost of the improve- ment cannot be had from the abutting owners.** The rules regarding the sufficiency of an ordinance authorizing paving or macadamizing are the same as in other improvements,*' part of a street requires that the 145 111. 313, 21 L. E. A. 563, 33 whole cost of the proposed im- N. E. 888. provement, other than street and si Gage v. Chicago, 162 111. 313, alley intersections, shall be levied 44 N. E. 729. by special taxation of the eon- 32 Taylor v. Patten, 160 Ind. 4, tiguous lots, etc., but only to the 66 N. E. 91. amount of the cost of the pave- ss Cunningham v. Peoria, 157 ment in front of any such lot or 111. 499, 41 N. E. 1014. parcel of land, so that each piece 34 Bradford v. Fox, 171 Pa. St. of property shall pay the full 343, 33 Atl. 85. amount of the coat of the improve- S5 An ordinance directing the ment in front of it, and no more curbing and paving of an avenue or less, this will not be the impo- between two points, which fails to sition of a special tax upon con- state where the curbing is to be tiguous property but will be an set and the width of the pavement arbitrary and unlawful imposition is insufficient to form the basis of of the burden upon each lot of the a special assessment for the cost making of the improvement in of the proposed improvement, and front of it. Davis v. Litchfield, the proceeding is not aided by the 373 § 425 THE LAW OF SPECIAL ASSESSMENTS. and the same is true of cases involving a delegation of power or the construction of an apportionment.*® Invalid curb ordinances. 425. An ordinance which fails to prescribe the height of a combined curb and gutter, or to state where the curb is to be placed, is insufficient to sustain a special assessment for doing such work.*'' So, also, in one for grading, curbing and tiling a street, where it fails to specify the height of the tile, its composition, inlets, outlets or connections, the number of lines to be laid or the depth for laying ; *^ and one for paving and curbing " the public square," where it leaves uncertain the question as to whether the streets around the square are to be paved, or the area embraced within the passage at the same time of an ordinance providing for the width of certain roadways at thirty feet, when it does not appear that a roadway is in the avenue proposed to he curbed and paved, or that the attention of the committee es- timating the cost was called to such other ordiijance, and when neither ordinance refers to the other. Gage v. Chicago, 43 HI. 157, 32 N. E. 264. An ordinance which simply authorizes the macadamizing of a particular street between certain points, without furnishing any di- rections for doing the work, is in- sufficient to sustain an action by a contractor on a certified tax bill against the owner of property ad- joining the street so improved. Haegele v. Mallinckrodt, 46 Mo. 577. 36 A paving ordinance is invalid where the specifications made a part thereof by reference provide for the placing of inlets and catch basins where directed by the engi- neer, and that crosswalks be built in the form directed by him, at street intersections and other points, according to the grades and plans of the engineer. Bradford v. Pontiac, 165 111. 612, 46 N. E. 794. An ordinance for paving a street a certain number of feet on each side of the center line, between certain designated terminal points, and to be paid for by special taxa- tion of contiguous property except opposite street intersections and city property, is a declaration that it shall be apportioned on the basis of frontage. Cramer v. Charleston, 176 111. 507, 52 N. E. 73. s'Holden v. Chicago, 172 III. 263, 50 N. E. 181; Jacobs v. Chi- cago, 178 111. 560, 53 N. E. 363; Lundberg v. Chicago, 183 111. 572, 56 N. E. 415; Essroger v. Chicago, 185 HI. 420, 56 N. E. 1086; Feh- ringer v. Chicago, 187 111. 416, 58 N. E. 303. 38 I. C. R. Co. V. Effingham, 172 111. 607, 50 N. E. 103. 374 THE. OEDIH-ANCE'. § 426 square.^® Where a similar ordinance provides that " said curb shall be six inches in thickness throughout, and the gut- ter flags shall be eighteen inches in width," the top of the curb to be " at the established grade of said street," there is nothing from which to ascertain how deep the curb is to be set, and the ordinance is insufficient to give the court juris- diction to enter a judgment of confirmation.*" The same objection applies where the ordinance provides for " a granite concrete, combined curb and gutter," to " be laid in alternate blocks of six feet in length and six inches in thickness," the other dimensions not being specified, and the height of the curb impossible to be determined.*^ Neither is it sufficient for an ordinance to describe the foundation upon which the curb stones are to be imbedded merely as "flat stones," and describing neither the quality nor the size,*^ although the city may show, if it can, that the term " flat stones " has such a well understood local meaning as not to be indefinite or uncer- tain ; *^ but it is insufficient when it fails to state the height of the curb on each side of the street.** Invalid sidewalk ordinances. 426. A sidewalk ordinance which does not show at what grade the walk is to be laid, or whether it adjoins the curb line or property line, is insufficient, either by express terms or by reference, so that a property owner may know definitely at what grade to lay the walk in case he avails himself of ssDeWitt Co. v. Clinton, 194 HI. cago, 187 111. 264, 58 N. E. 1094; 521, 62 2Sr. E. 780. Eieh v. Chicago, 187 111. 396, 58 40 Willis V. Chicago, 189 111.103, N. E. 306; Beach v. Chicago, 193 59 N. E. 543. 111. 162, 61 N. E. 1015; Moll v. 41 Holden v. Chicago, 172 111. 263, Chicago, 194 111. 29, 61 N. E. 50 N. E. 181; Jacohs v. Chicago, 1012; Nichols v. Chicago, 192 IlL 178 111. 560, 53 N. E. 363. 290, 61 N. E. 435. 42 Lusk V. Chicago, 176 111. 207, 43 Chicago v. Holden, 194 IlL 52 N. E. 54; Davidson v. Chicago, 213, 62 N. E. 550. 178 111. 582, 53 N. E. 367; Gage V. 44 Holden v. Chicago, 172 111. Chicago, 179 111. 392, 53 N. E. 742; 263, 50 N. E. 181; Mills v. Chi- Kuester v. Chicago, 187 111. 21, cago, 182 111. 249, 54 N. E. 987. 58 N. E. 307; Anderson v. Chi- 375 § 427 THE LAW OF SPECIAL ASSESSMENTS. his right to construct the walk in front of his own property, and a special tax therefor is invalid.*' The use of the word " proper " alone is not a sufficient designation of the width,*® and one providing that the walk shall he " not less than " a certain width, and constructed of " brick " or, " paving tile," is fatally defective for uncertainty. *'' It is indefinite if it provides for an excavation of four inches below the estab- lished grade of the street, " except where it would be better and more practicable, on account of proper drainage, to ex- cavate less or grade up at low places.** An ordinance for the construction of a sidewalk providing in one part that it shall be constructed of pine planks, and in another part that it shall be constructed of stone, and which is otherwise con- contradictory is so uncertain as to render it void.*® Invalid waterworks ordinances. 427. The city council cannot provide for the construction of water and sewer service pipes by special taxation, and then ignore the very principle on which such taxation is based. The work must be regarded as an entirety, and its cost appor- tioned and assessed on some principle of equality and uni- formity, on all of the contiguous property — that is, on all the lots and parcels of land in the taxing district.'" Under *5 McChesney v. Chicago, 171 111. apprehension. It will be time 253, 49 N. E. 548; Biggins' Estate enough to consider the question V. People, 193 111. 601, 61 N". E. when a ease for apprehension oc- 1124; Craig V. People, 193 111. 199, curs. Meanwhile it may not be 61 N. E. 1072. amiss to suggest that all this must 48 People V. Hills, 193 111. 281, be done, if at all, by ordinance, 61 N. E. 1061. and it must be remembered that 47 Mansfield v. People, 164 111. ordinances, to be valid, must be 611, 45 N. E. 976. reasonable, — not unfair or oppres- 48 McDowell V. People, 204 111. sive, — and must spring from an 499, 68 N. E. 379. honest exercise of legislative dis- 49 Hull V. Chicago, 156 111. 381, cretion." Dickey, C. J., in Craw 40 N. E. 937. V. Tolono, 96 111. 261, 36 Am. Rep. In speaking of the frontage rule, 143. and apprehensions of its abuse, oo Palmer v. Danville, 154 111. " So long as it is confined to side- 156, 38. N. E. 1067. walks there is little cause for such 376 THE OEDIBTANCE. § 428 an ordinance providing for an assessment for laying water- pipes, the expense of hydrants cannot be included, the ordi- nance not making provision therefor."^ Description of fire hydrants, crosses, tees and supply-pipes as " city of Chicago standard " is insufficient, even though the internal diameter of the pipes and the weight per foot are given, where there is no proof that the description has a well known and local meaning, and there is no reference in the ordinance to any particular existing hydrant or pipe of the " city of Chicago standard." '^ An ordinance providing for the laying of water service pipes in certain streets which fails to specify the dimensions of the pipes or to designate of what material they are to be composed, does not sufficiently describe the nature and character of the improvement.'* Invalid sewer ordinances. 428. An ordinance for a special tax which has the effect of creating a taxing district, and which specially assesses the cost of each lateral service and sewer connection against the particular lot with which it is to connect, instead of appor- tioning the entire cost among the continuous lots upon some rule of equality, is illegal and void.*** A city has no power to provide that " house connection slants " be placed on both sides of a sewer opposite each twenty feet of lot frontage, when the property affected is divided into lots having a greater frontage than twenty feet.'' Under a statute requir- ing that a notice of the construction of sewers containing a statement of the contemplated size, should be published be- fore passage of the ordinance for the construction, a notice that the sewer would be " of various diameters," and with 51 Cicero v. Green, 211 111. 241, bs Cass v. People, 166 111. 126, 46 71 N. E. 884. N. E. 729. B2 Washburn v. Chicago, 202 111. s* Palmer v. Danville, 154 111. 210, 66 N. E. 1033; MeChesney v. 156, 38 N. E. 1067. Chicago, 213 111. 592, 73 N. B. 368, 55 Gage v. Chicago, 191 111. 210, distinguishing Lamphere v. Ohica- 60 N. B. 896. go, 212 111. 440, 72 N. E. 426. 3Y7 § 429 THE LAW OF SPECIAL ASSESSMENTS. nothing else to indicate its size, does not comply with the statute and the ordinance and assessment are hoth void.*"® An ordinance for sewer construction, providing that for rock excavation, in addition to the regular price per foot, the con- tractor shall receive dollars a cubic yard extra, and such blank was never filled ; and which also reserves the right to the commissioners to make changes in the plans and specifi- cations, is invalid.®'^ 429. Where it appears from the ordinance itself, fixing the starting point of the sewer at the point of connection with another sewer on a certain cross-street, which stops at a point a block away from the point of connection specified, or where it provides for the construction in such a manner that to ren- der it of any use, it must be covered to a depth of several feet, and no data is furnished for an estimate of the cost, in either case the ordinance is void, and no assessment can be levied under it.*® The requirements as to being sufficient- ly specific are the same as in ordinances for other public improvements."^ The construction of extra sewers and the B« Atlanta v. Gabbett, 93 6a. furnish date for an intelligent es- 266, 20 S. E. 306. timate of its costs, and it cannot be 07 L. S. & M. S. R. Co. V. Chi- gathered from the ordinance itself, cago, 144 111. 391, 33 N. E. 602. whether a sewer is to be built of 58 Gage V. Chicago, 191 111. 210, brick, stone, iron or wood, or its 60 N. E. 896; Title Guarantee & dimensions or capacity, it is insuf- Trust Co. V. Chicago, 162 111. 505, ficient to justify a special assess- 44 N. E. 832. ment. Kankakee v. Potter, 119 5» An ordinance for the construe- 111. 324, 10 N. E. 212. tion of a system of sewerage which Provisions in an ordinance for fails to specify the nature, char- constructing a sewerage and pump- acter, locality and description of ing works, that the wells or basins the manholes and catch basins, is should be located upon a certain invalid and cannot be made the lot, " or upon some other suitable basis of a special assessment. Og- lot in the immediate vicinity of the den V. Lake View, 121 111. 422, 13 one described;" that the lot de- N. E. 159. scribed, or " some other suitable Where an ordinance for a pro- lot" in the same vicinity, etc., be posed local improvement fails to purchased, and that there be describe the nature and character erected suitable buildings consist- thereof, with such certainty as to ing of an engine room, etc., " sub- 378 THE OEDINANCE. § 430 putting in of additional catch basins not provided for by the improvement ordinance, is not vpithin the povsrer of the authorities, nor proper subjects to charge to the fund raised by special assessment.®" Delegation of power. 430. Where an ordinance attempts to delegate a power stantially as the same is delineated upon plans on file in the office of the village engineer/' are all objec- tionable as being insufficient, and failing to comply with the require- ments of the statutes. Hyde Park v. Spencer, 118 111. 446, 8 N. E. 846. Such ordinance is further defec- tive if it does not specify with suf- ficient definiteness and certainty the location of the manholes and mantraps, and fails to give any specifications from which the cost of the pumping engines and boil- ers and their foundations can be estimated. Id. A description of the proposed sewer does not sufficiently show its depth, on the vertical plan of the improvement by stating that it is to commence at a connection with the specified street sewer which measures nine or ten feet vertically from top to bottom, and extends to another specified sewer, without even showing in which direction the frontage is to be. Alton v. Middleton's Heirs, 158 HI. 442, 41 N. E. 926. An ordinance providing for the reconstruction and deepening of a, sewer through a certain block to as great a depth as its connection with another sewer named would admit the grade of bottom to be as there- after established by the city sur- veyor, and after fixing its locality, providing that the character of the work should be the same as the then existing sewer, and that the material in the old sewer should be used in the new as far as pos- sible, is fatally defective in fail- ing to give with sufficient certainty the character, nature and descrip- tion of the proposed reconstruction of the sewer, and that no special assessment based on the same could be enforced. Kankakee v. Potter, 119 111. 324, 10 N. E. 212. Where an ordinance for con- structing a sewer fixed the start- ing point and provided that there should be a, uniform fall of two- tenths of a foot in every 100 feet in length, which would require the water to run up hill; and it was evident from other sections of the ordinance as well as from the plans and profiles that the word " rise " was intended instead of the word " fall," it was held that the use of the word " fall " should be considered to mean " rise " in order to prevent an absurd conse- quence. Steele v. Eiver Forest, 141 111. 302, 30 N. E. 1034. For an ordinance fatally defec- tive because not showing length of drains, see Wetmore v. Chicago, 206 111. 367, 69 N. E. 234. 80 People V. McWethy, 177 111. 334, 52 N. E. 479. 3V9 § 431 THE LAW OF SPECIAL ASSESSMENTS. or discretion belonging exclusively to the council to another body, or to a ministerial officer, such ordinance is void, and goes to the jurisdiction, so it may be shown at any stage of the proceedings.®^ But it is an impossibility that the legisla- tive body should personally supervise all public work, and it may properly vest in another body or officer the power to supervise the work or material, and determine as to its com- plying with the terms of the ordinance or contract.®^ Thus an ordinance for a street improvement which requires the city engineer to fix the grade, is not rendered invalid thereby, where the cost has been estimated by a committee, and their report approved by the council. It is not a delegation of legislative power to fix cost or extent of improvement.** Nor is it invalid because of a clause requiring the work done and materials furnished to be subject to the approval of the city engineer, and in accordance with the plans and specifications furnished by the council. Such provision gives the engineer no power to determine the kind of materials to be used, but only the right to see that the materials required are used, and the work done as directed by the ordinance.** 431. Under a charter providing that whenever the coun- cil shall order certain street work, and shall " deem the per- formance of the work by contract, to be advantageous," it shall be the duty of the city engineer to advertise for pro- posals, a subsequent ordinance requiring the engineer to so advertise is equivalent to a finding by the council that such work under contract was advantageous, without a further ordinance in terms directing the work to be so done.*® And a street grading ordinance which leaves to the discretion of the 61 People V. Warneke, 173 111. 62 Bradford v. Pontiac, 165 111. 40, 50 N. E. 221; Mayor, etc. v. 612, 46 N. E. 794; Gross v. Scharf, 54 Md. 499. The latter case People, 172 111. 571, 50 N. E. 334. was overruled in Mayor, etc. v. 63 Lake v. Decatur, 91 111. 596. Johns Hopkins Hospital, 56 Md. 1, 6^ Jacksonville E. Co. v. Jack- by a 3 to 2 opinion. The dissent- sonville, 114 111. 562, 2 N. E. 478. ing opinion is a very strong one, eo Kiley v. Forsee, 57 Mo. 390. and, to the author's mind, un- answerable. 380 THE OBDINANCE. § 432 engineer the nature of the filling to be used after the grading has been done and the surface rolled, refers only to depres- sions thereafter occurring, and does not enable the engineer to vary the character of the work to be done to such an extent as in any way to change the cost.®® Evidence, and burden of proof. 432. In an attempt to declare an ordinance void and to enjoin its enforcement upon a ground not specifically alleged in the bill, it is for the plaintiffs to show affirmatively wherein any essential requisite to its legal adoption has been omitted, and not for the city to show that the antecedent proceedings were regular in every particular.®^ But where the statute authorizes an ordinance for constructing a sidewalk to be paid for by special taxation to require a special tax list to be pre- pared and filed with the city clerk, it is incumbent on the city, upon application for judgment, to show compliance with such provisions of the ordinance.®* And if such an ordinance refers to the established grade, it is incumbent on the city to prove in the first place that the grades of all portions of the streets sought to be improved have been established by ordinance.®' The production of a duly certified copy of a city ordinance is prima facie evidence that every step has been taken with reference to it to make it a valid ordinance,^® and a special taxation ordinance, with the assessment roll thereunder, are prima facie sufficient to support a judgment of confirmation entered by default, though no reference to the question of benefits is made in the ordinance.''^ Where 66 Guyer v. Rock Island, 215 HI. v. People, 193 111. 601, 61 N. E. 144, 74 N. E. 105. 1124; Craig v. Pepole, 193 111. 67 Beaumont V. Wilkesbarre, 142 199, 61 N. E. 1072; Holland v. Pa. St. 198, 21 Atl. 888. People, 189 111. 348, 59 N. E. 753. 68 People V. Record, 212 111. 62, so Brewster v. Peru, 180 111. 124, 72 N. E. 7; Hoover v. People, 171 54 N. E. 233. 111. 182, 49 N. E. 367; Jeffries v. to Lindsay v. Chicago, 115 111. Cash, 207 111. 405, 69 N. E. 904; 120, 3 N. E. 443. and the making and filing of such 'i Pfeiffer v. People, 170 111. a tax list is jurisdictional. Peo- 347, 48 N. E. 979. pie V. Record, supra, Biggins' Est. 381 §§ 433, 434 THE LAW OF SPECIAL ASSESSMENTS. the original ordinance has been destroyed by fire, parol proof is admissible to show that it had been signed by the mayor, although the record of the ordinance in the ordinance book fails to show his signature.'^ ^ But evidence of an ordinance requiring a railroad company to pave between its tracks is not admissible in a liearing before a jury upon the question of benefits J ^ When "may" means "mnst." 433. The word " may " in an ordinance providing that notice to build a sidewalk " may " be personally served on the property owner should be construed as " must," and is manda- toryj* So, too, where the statute provides that an ordinance passed thereunder " may " require lot owners to build their sidewalks within thirty days, the word " may " means " must."^« Pnblication of. 434. A statutory prohibition against passing an ordinance until two days after the publication required shall have been made, is a limitation upon the power of the council to make assessments, and a requirement that the ordinance or resolution shall be published in all the papers employed by the city, is mandatory.''® But a single publication thereof two days before the passage of the resolution is sufficient.''^ Requirements for publication of ordinances and notices are generally mandatory, requiring a strict compliance vidth the provisions of the ordinance or statute, and an ordinance not published as required by statute cannot form the basis of a proceeding to levy and a special tax or assessment.^* 72 Seattle v. Doran, 5 Wash. 482, 456, 67 N. E. 383 ; Mercy Hospital 32 Pac. 105, 1002. v. Chicago, 187 111. 404, 58 N. 73 Wells V. Chicago, 202 111. 448, E. 353. 66 N. E. 1056. '8 In re Douglass, 46 N. Y. 42; 'iDoane v. Omaha, 58 Neb. 815, In re Astor, 50 N. Y. 363. 80 N. W. 54; Yates v. Omaha, 58 77 In re Bassford, 50 N. Y. 509. Neb. 817, 80 N. W. 1134. 78 Weld v. People, 149 HI. 257, 75Pierson v. People, 204 HI. 36 N. E. 1006. 382 THE OEDINANCE. § 434 " Two weeks time shall elapse." Fehler v. Gosnell, 99 Ky. 380, 35 S. W. 1125; Louisville v. Selvage, 106 Ky. 730, 51 S. W. 447, 52 S. W. 809; Pittelkow v. Milwaukee, 94 Wis. 651, 69 N. W. 803. Misoellaneous decisions on subject. Payment in installments. An ordinance authorizing a pub- lic improvement to be paid for by a special assessment may properly provide for payment in install- ments. Sumner v. Milford, 214 111, 388, 73 N. E. 742. Assessing cost of work, disregard- ing benefits. An ordinance requiring a rail- way company to make safe and proper crossings for a street ex- tended over its property, without regard to benefits (there being nothing in the company's charter imposing such duty, or any such duty imposed by general law when the company was created is uncon- stitutional. I. C. R. R. Co. V. Bloomington, 76 111. 447. Material to be used — Notice to owners — Jurisdiction. The provisions of an ordinance that it shall be the duty of the mayor and council to give property owners thirty days from the ap- proval and publication of a street improvement ordinance to desig- nate by petition the material to be used for paving, are mandatory, and unless waived, the lack of such notice will prevent the coun- cil from acquiring jurisdiction to levy a, tax to pay for the improve- ment. Eddy V. Omaha (Neb.), 101 N. W. 25; Morse v. Omaha, 67 Neb. 426, 93 N. W. 739. Pleading " duly passed." In pleading that a city ordi- nance was duly passed, it is nec- essarily implied that all essential antecedent acts, requisite to the legal enactment of the ordinance, were done. Becker v. Washington, 94 Mo. 375, 7 S. W. 291. Effect of amending law under which passed. Where an ordinance for a street improvement was valid when passed, an amendment to the law, by which the cost of making and collecting the assessment is not to be added, does not invalidate the ordinance as a whole. Gage v. People, 207 111. 377, 69 N. E. 840. Publication on Sunday — Proof. A street assessment is not in- validated because the ordinance creating the taxing district was published on Sunday. Denver v. Dumars, 33 Colo. 94, 80 Pac. 114; Denver v. Hallett, 33 Colo, 94, 80 Pac. 114; Denver v. Londoner, 33 Colo. 104, 80 Pac. 117. See Pier- son v. People, 204 111. 456, 68 N. E. 383. Inaccuracies in description. Local improvement ordinances are not void for mere inaccuracies of description, but merely defec- tive, and to an extent justifying refusal of judment of confirmation. Chicago V. Hulbert, 205 111. 346, 68 N. E. 786; Kuester v. Chicago, 187 111. 21, 58 N. e! 307. But if judgment of confirmation be rendered, it cannot be collater- ally attacked in the groimd that the ordinance is defective, although the rule is otherwise when the or- dinance is void. Chicago v. Hulbert supra. Blount v. People, 188 111. 538, 59 N. E. 241; Foster v. Alton, 173 111. 587, 51 N. E. 76; Gross V. People, 172 111. 571, 50 N. E. 334; Rich v. Chicago, 187 111. 396, 58 N. E. 306. 383 § 434 THE LAW OF SPECIAL ASSESSMENTS. When judicial in oharaoter — flo- meats. Sears v. Atlantic City tiee. (N. J.), 60 Atl. 1093. A paving ordinance which in- Assessability of non-abutting prop- eludes a determination that the erty. costs shall be assessed upon the Felt v. Ballard, 38 Wash, 300, property benefited is judicial in its 80 Pac. 532. character, and notice is required JVeio ordina/nce to remedy defects. upon general principles of justice, Chicago v. Hulbert, 205 111. 346, irrespective of charter require- 68. N. E. 786. 384 ■CHAPTER Vin. OF THE PEOOEED-INGS WEiCESSAET TO. AOQtriEB AND EBTAIHT JTJBISDICTIOH'. Jurisdiction — In general, 435, 436. Acquiring jurisdiction by publica- tion, 437. Collateral attack, 438. Powers of council — In general, 439. Discretion of council, 440, 441. What council may do, 442. What council may not do, 443. Delegation of authority, 444. Ministerial powers, 445-447. The contract — In general, 448. Bids and bidders, 449. Lowest bidder, 450. Powers of council in letting, 451. Provisions tending to increase cost, 452. Guarantee of work for a term of years, 453. Performance of contract, 454, 455. Description of work, 456. Time for completion, 457. Extra work, day labor, 458. Patented articles — Monopoly, 459. Assignment of contract, 460. Construction of contract, 461. Liability of city on contract, 462. Abandonment of proceedings, 463. Presumptions, 464. Apportionment — Fixing the tax- ing district, 465-469. Benefits, 470. Conflicting decisions, 471-474. Eule for assessment of benefits, 475-476. Benefits a question of facts, 477-479. What must affirmatively appear, 480. Front foot assessments — Com- pliance with statute, 481. Future benefits not to be con- sidered, 482. Offsetting benefits and damages, 483. Objections to assessment — • When made, 484. Special taxation, 485. Assessment in excess of value of property, 486. Georgia, 487. Iowa, 488. Kentucky, 489. Maryland, 490. Nebraska, 491. New Jersey, 492. Ohio, 493. Pennsylvania, 494. Miscellaneous rulings, 495. Benefit assessments held valid, 496. Benefit assessments held valid, 497-499. The front foot rule — In general, 500. Front ioot rule as a principle, 501. 25 385 § 435 THE LAW OF SPEOIAI, ASSESSMENTS. Front foot rule as a convenience, 502, 503. How frontage determined, 504, 505. Assessments valid under the front foot rule, 506. Frontage assessments held in- valid, 507, 508. Jurisdiction — In general. 435. Jurisdiction is the authority to hear and determine the cause in question, and does not depend upon the correct- ness of the decision made.^ That the right of making special assessment requires legislative sanction, and that the statute is to be strictly construed, we have already seen.'^ It follows as a necessary corollary that unless the statutory directions are strictly complied with, no jurisdiction is obtained by the local authorities, although the jurisdiction of the proper board or ofificers, once acquired, extends through all subse- quent proceedings,* unless they afterwards do some act which divests them of the jurisdiction already acquired, for after they have once acquired jurisdiction to act, they must still exercise their power in the mode prescribed by law.* 1 People V. Talmadge, 194 111. 67, 61 N. E. 1049; Burke v. Kan- sas City, 118 Mo. 309, 24 S. W. 48. Requisfite for " due process of law." " The one essential to due pro- cess of law in the exercise of the power of taxation is that, at some stage of the proceedings, the par- ties concerned shall have notice and an opportunity to interpose any defense they may have as to either the validity or amount of the tax." Duluth v. Dibblee, 62 Minn. 18, 63 N. W. 1117, by Mitchell, J. Jurisdictional defects, " The use of the term ' jurisdic- tional defects ' is rather confus- ing than helpful. It has frequent- ly been said, in substance, that special proceedings are in their na- ture harsh and should be construed strictly, and that any material omission or failure to follow the provisions of law in the proceed- ings will deprive the taxing officers of jurisdiction and invalidate the tax; but it was not to be claimed that defects in the assessment pro- ceedings proper, as distinguished from the proceedings for making the improvement, though jurisdic- tional in the sense just referred to, could not be cured under the pro- visions of a proper reassessment law. So the fact that a defect may be properly termed jurisdic- tional is by no means a test." Schintgen v. La Crosse, 117 Wis. 158, 94 N. W. 84. 2 Sees. 186-189. 3 Dougherty v. Miller, 36 Cal. 83. * Chambers v. Satterlee, 40 Cal. 497. 386 JUIilSDICTIOir THE OEDIITANCB. § 436 436. After the council has acquired jurisdiction to order a street improvement, it may take such further action as may be necessary and proper for causing the work to be done and to pay the expense of doing it.** So, too, where the boundaries of a city have been extended, it has power to improve a highway falling within its new limits which had been opened as a country road.® The preliminary proceed- ings required by statute to be taken before the passage of a special assessment ordinance are jurisdictional, without which no valid ordinance can be passed nor valid assessment made.'^ If the statute requires the corporate authorities, before pro- ceeding with a street improvement, to determine first that it is " consistent with the public good," failure to make such determination divests them of power to proceed.^ Where a charter provides a distinct act shall be done, or a specific finding made before proceeding with the assessment, such requirements are generally mandatory and jurisdictional.® 5 Reynolds v. Schweinefuss, 27 Ohio St. 311. 8 Vancouver v. Wintler, 8 Wash. 578, 36 Pac. 278, 685. 1 Chicago V. Nodeck, 202 111. 257, 67 N. E. 39; Blckerdike v. Chica- go, 203 111. 636, 68 N. E. 161. 8 Mayor, etc., v. Porter, 18 Md. 284, 79 Am. Dec. 686. Requiring assent of a certain pro- portion of property owners. 8 Ogden City v. Armstrong, 168 U. S. 224, 42 L. ed. 444, 18 Sup. Ct. Eep. 98. Requiring petition of majority of land ovmers withvn the district. People V. Brooklyn, 71 N. Y. 495. A charter provision that all resolutions creating a charge against any city fund, shall be re- ferred to the appropriate commit- tee, and not acted on until a meet- ing at some later date. Gilman v. Milwaukee, 61 Wis. 588, 21 N. W. 640. That the declaration of ne- cessity for the improvement is a distinct act from, and precedes the order for making the improve- ment. Hoyt V. E. Saginaw, 19 Mich. 39, 2 Am. Rep. 76. Fail- ure to deposit with the register a statement showing in detail the cost of the improvement in front of each parcel, or to place in the hands of the collector a list of per- sons taxed, or failure of the collec- tor to give the requisite notice. Lyon V. Alley, 130 U. S. 177, 32 L. ed. 899, 9 Sup. Ct. Eep. 480. Where the charter of a city pro- vides that streets may be paved only upon a petition therefor by the owners of a majority of the lineal feet fronting such street, and does not expressly authorize the common council to determine that this prerequisite has been fulfilled 387 § 436 THE LAW OF SPECIAL ASSESSMENTS. An objection to an assessment -which goes to the jurisdiction may be urged upon application for judgment ; *" but if it goes merely to the form in which the case is brought, and not to the judicial power of the tribunal, it is too late after a general appearance and plea in bar.^^ Although the Illinois statute makes the inclusion of the engineer's itemized estimate in the improvement resolution a jurisdictional matter, the fur- ther provision that when application is made for a judgment of sale on an installment of an assessment payable in that manner, all questions as to jurisdiction must be raised and determined, is controlling, and unless so raised, the plaintiff is concluded by the judgment.-^* And where the law requires benefits and damages both to be assessed, a disregard of this requirement renders all the proceedings coram non judice.^^ The adoption by the common council of a resolution to improve a street, or part of a street, does not confer jurisdic- tion to improve only a portion of the street embraced in the resolution.^* and the owners of the required frontage do not sign the petition, a decision of the common council that the majority did sign it is not' a judicial determination of the fact; and a, subsequent ordering of the pavement is unauthorized, and an assessment made therefor is void for want of jurisdiction. Mil- ler V. Amsterdam, 149 N. Y. 288, 43 N. E. 632. Where a charter gives a city power to improve a street without petition whenever any street shall be in such condition as to be un- safe or dangerous, this is a juris- dictional matter, and the findings of the council are not conclusive. Unless the street in fact is in such condition, the city is without pow- er or jurisdiction in the premises, and its proceedings are void. Smith V. Minto, 30 Or. 351, 48 Pac. 166; Shannon v. Portland, 38 Or. 382, 62 Pac. 50. i» Chicago v. Wright, 32 111. 192. An objection that the ordinance is void may be made at any time, being jurisdictional. O'Neil v. People, 166 111. 561, 46 N. E. 1096; Cass V. People, 166 111. 126, 46 N. E. 729. 11 Schenley v. Commonwealth, 36 Pa. St. 29, 78 Am. Dee. 359. 12 Treat v. Chicago, 125 Fed. 644. 13 Mayor, etc., v. Porter, 18 Md. 284, 79 Am. Dec. 686. 1* Stockton V. Whitmore, 50 Cal. 554. Acceptance and user by park commissioners of a viaduct built by a city and a railroad company, over the tracks of the latter and part of a street previously desig- nated by an ordinance of such com- 388 JTrEISDICTIOW THE OEDIITANCB. § 437 Acquiring jurisdiction by publication. 437. To obtain jurisdiction by publication it must af- firmatively appear that the statute has been strictly pursued, and its provisions complied with, and no presumptions as to accuracy will be indulged in.^** But where jurisdiction to grade a street has been acquired by publication of notice, such jurisdiction will not be disturbed by the nonexercise of the missioners to be improved, is not such a relinquishment to jurisdic- tion to the city as deprives the commissioners of power to subse- quently specially assess for the cost of such improvement. W. Chi. Park Com'rs v. Sweet, 167 111. 326, 47 N. E. 728. Street Qrading — Statute limita- tions. Where a street has been graded, and the cost ascertained and as- sessed against the abutting prop- erty, although irregularly done, such irregularity does not affect the jurisdiction of the city, nor bar the running of the statute of limitations. Wahlgren v. Kansas City, 42 Kan. 243, 21 Pac. 1068. Irregularities between contract and ordinance. Where the statute permits a re- covery on a special assessment for street work " notwithstanding any informality, irregularity, or de- fect," the fact that a. contract let for such improvement does not conform exactly to the ordinance or advertisement for bids is not jurisdictional, and the variance will be disregarded where not prejudicial to property owners. Ottumwa B. & O. Co. v. Ainley, 109 Iowa, 386, 80 N. W. 570. Common Oov/ncil as tribunal. Where the common council is constituted by the legislature as the tribunal for the determination of all questions of irregularities in making a special assessment, re- sort must be had to it for the cor- rection of all errors, irregularities or inequalities of assessment, in the absence of fraud, or such show- ing as would deprive it of the right to act at all. Where it has such jurisdiction, and the plaintiff had such notice of the assessment as the statute provides, although de- fective, all errors are waived by failure to appear or object to the assessment. Owens v. Marion, 127 Iowa, 469, 103 N. W. 381. Necessity for improvement — Vn- safety. Where a charter gives a city power to improve a street without petition whenever any street shall be in such condition as to be un- safe or dangerous, this is a juris- dictional matter, and the findings of the council are not conclusive. Unless the street in fact is in such condition the city is without power or jurisdiction in the premises, and its proceedings are void. Smith v. Minto, 30 Or. 351, 48 Pac. 166; Shannon v. Portland, 38 Or. 382, 62 Pac. 50. 15 McChesney v. People, 145 111. 614, 34 N. B. 431; Payson v. Peo- ple, 175 111. 267, 51 N. E. 588; Yaggy V. Chicago, 194 111. 88, 62 N. E. 316. 389 § 437 THE LAW OF SPECIAL ASSESSMENTS. further privilege given the court by statute to direct a per- sonal service upon interested resident property holders.^® If the statute^ or charter, or ordinance, requires proof of pub- lication to be made by affidavit or certificate, and have it filed with the record, such making and filing is a condition pre- cedent^^ 18 Kansas City v. Duncan, 135 Mo. 571, 37 S. W. 513. 17 In the absence of a sufficient certificate of publication of the re- quired notice, the court is without jurisdiction to enter judgment con- firming a special assessment. Kearney v. Chicago, 163 HI. 293, 45 N. E. 224. Where the statute requires the commissioners of assessment to make an assessment roll, prescrib- ing its contents, requiring notice of final hearing thereon to be mailed to each owner of premises whose name and place is known to them, in the form prescribed; to give notice by posting the same in at least four public places in the neighborhood; to publish such no- tice, in the form given, for five successive days in a daily paper, and to file an affidavit of the mail- ing of the notices, an affidavit that they were posted as required there- in, and to file a certificate of the publication of the notice — the mailing, publication and posting of such notice are jurisdictional, or judgment of confirmation cannot be entered. McChesney v. People, 145 111. 614, 34 N. B. 431. A certificate of publication of the notice of making a special as- sessment, or of application for con- firmation thereof, is fatally de- fective if it fail to state the date of the last publication, or some- thing equivalent thereto, and such defect is jurisdictional. Butler v. Chicago, 56 111. 341. An affidavit of mailing a notice which contains all that is required by statute, confers jurisdiction on the court, though it contain an im- perfect and unnecessary copy of the notice sent, such copy being treated as surplusage. Gordon v. People, 154 111. 664, 39 N. E. 560. Resolution, or notice of intention. The resolution of intention is the usual step by which alone the board acquires jurisdiction to order the work done, and it must so describe it as to convey an in- telligent idea of the improvement and its nature and expense. Mc- Donnell V. Gillon, 134 Cal. 329, 66 Pac. 314. A notice of intention to make a public improvement, although it is the means by which the council acquires jurisdiction is not pro- cess in the same sense that a summons is process, and the same strictness in proving publication is not required. Thus, where proof of publication of a proposed street improvement is defective, parol evidence is admissible to supply the defects. Clinton v. Portland, 26 Or. 410, 38 Pac. 407. Where due notice of intention to improve a certain extent of street is given, the property own- er cannot complain of want of no- 390 JURISDICTION ■ THE OEBINAirCB. § 438 Collateral attack. 438. Where the existence of a fact is necessary before the officers of a municipal corporation can act and no provision is made by statute for the determination of that fact, no author- tiee by reason of the fact that subsequently another notice is pub- lished covering an improvement for which the former notice was given and a continuation of such improvement, although the subse- quent publication may not aJBford notice for such length of time as the law requires. Felker v. New Whatcom, 16 Wash. 178, 47 Pac. 505. Where a valid ordinance directs that the improvement of streets shall be ordered by resolution de- scribing the streets and improve- ments, and that notice shall be given by publication of the resolu- tion, such a provision is manda- tory. Starr v. Burlington, 45 Iowa, 87. Where a charter requires a two- thirds vote of the council before the adoption of a resolution, it must appear by the records, or by proof aliunde, that two-thirds of the members voted for it, and there is no presumption that the resolu- tion received the requisite vote, and the defect is jurisdictional. In re City of Buffalo, 78 N. Y. 362. When resolution to improve street insuflScient, see Buckley v. Tacoma, 9 Wash. 253, 37 Pac. 441. Certificate of assessor. The certificate of the assessor of the levying of the special assess- ment for the cost of constructing a sewer, being a jurisdictional doc- ument in proceedings under which titles may be diverted, cannot be permitted to speak in doubtful terms; and the reasons requiring such certificate to be definite and distinct, are more Imperative in the case of special and exceptional taxes than in the case of general taxes. Warren v Grand Haven, 30 Mich. 24. Amendment of law. When, pending proceedings for an alley improvement, the law is so changed as to confer on an- other board the making of such im- provements, such amendment does not work a discontinuance of the pending proceedings, but they should be completed by the board that adopted the resolution, unless the statute otherwise directs. Cin- cinnati V. Davis, 58 Ohio St. 225, 50 N. E. 918. Conclusiveness in second trial be- tween same parties. In an action brought against commissioners of a road improve- ment to test their jurisdiction in the matter, it was determined in a trial upon the merits that they had such jurisdiction, and this deci- sion was conclusive upon the same parties in a second action under the same assessment, but for a reason not stated in the first one. Martin v. Roney, 41 Ohio St. 141. Assessm/ent made without notice. After a property owner succeeds in having its property omitted by the commissioners from their re- port of assessments, it was not bound to take further notice of the proceedings, and a notice of the 391 § 439 THE LAW OF SPECIAL ASSESSMENTS. ity to ascertain it is implied; their decision that it exists is not a judicial determination and may be inquired into col- laterally when they take subsequent action upon the assump- tion that the fact existed.^* Where the court has jurisdic- tion to enter a judgment of confirmation, objections to the sufficiency of the ordinance, not going to its validity, cannot be made collaterally, on application for judgment of sale.^* Parties to a judgment are concluded by defects and irregular- ities in the proceedings, but such is not the rule where the judgment is void for want of jurisdiction.*" But where lack of jurisdiction is conclusively established, any judgment in such case may be collaterally attacked, either in the trial or in the appellate court '^^ Powers of council — In general. 439. Although the power of special assessment exists only by exclusive legislative grant, it is a necessity that a sub- meeting of the council to consider the assessment is not a notice to Buch owner on whicE to base an assessment on its property not in- cluded in the assessment report of the commissioners, and the coun- cil is without jurisdiction to make such assessment. Spring Steel, etc., Co. V. Anderson, 32 Ind. App. 138, 69 N. E. 404. Omission to find performance. An error in determining whether a street contract has been fulfilled is not a jurisdictional defect which vitiates an assessment levied to pay for work in front of a lot. Emery v. Bradford, 29 Cal. 75. Requisites for jurisdiction. When the passage and publica- tion of a resolution of intention to do work are acts by which the board acquires jurisdiction to make such improvements as they describe in the resolution, they cannot law- fully cause to be performed work other than that described, or enter into a valid contract therefor. Partridge v. Lucas, 99 Cal. 519, 33 Pac. 1082. 18 Miller v. Amsterdam, 149 N. Y. 288, 43 N. E. 632. i»Steenberg v. People, 164 HI. 478, 45 N. E. 970. 20 Hawkins v. Horton, 91 Minn. 285, 97 N. W. 1053. 2iKeeler v. Jreople, 160 111. 179, 43 N. E. 342; Cass v. People, 166 111. 126, 46 N. E. 729; O'Neil v. People, 166 111. 561, 46 N. E. 1096; Johnson v. People, 177 111. 64, 52 N. E. 308; Blount v. People, 188 III. 538, 59 N. E. 241; Johnson V. People, 189 111. 83, 59 N. E. 515; Johnson v. People, 202 111. 306, 66 N. E. 1081. Objections which might have been urged at confirmation are not available on application for sale 392 JURISDICTION ■ • THE ORDINANCE. § 439 stantial modicum of discretionary power be vested ia some local authority, and this is almost universally bestowed upon the city council, or other similar legislative board. The powers possessed by municipal corporations are susceptible of very exact limitation,^^ but the discretion of the legislative branch of a city government is somewhat more difficult of exact definition, but its powers, whatever they may be, cannot be delegated. The functions of a city council in ordering a street improvement are to determine the nature and general character of the work, and to describe the improvement or "work to be constructed, and this function cannot be delegated. But it does not involve the necessity of determining and de- scribing the details of construction when that task is devolved by law on the city engineer. The function of the council is that of supervision as to these details, and of ultimately de- termining the cost of the work and the amount of the tax to he assessed.^* Eut it is not only within the power, but it is unless they go to the jurisdiction of the court to confirm the assess- ment. But an objection that the ordinance is void as being unau- thorized by statute, or failure to comply with some statute, goes to the jurisdiction and is available on application for sale. Walker v. People, 202 111. 34, 66 N. B. 827. Park Commissioners. Park commissioners whose ju- risdiction over certain streets has been established by long unques- tioned user under a city's statu- tory consent, do not have to es- tablish the regularity of their jurisdiction in a special assess- ment proceeding, as such juris- diction can only be questioned in a direct proceeding. W. Chicago Park Com'rs v. Sweet, 167 111. 326, 47 N. E. 728. 22 " A municipal corporation possesses and can exercise the fol- lowing powers and no others: First, those granted in express words; second, those necessarily implied or necessarily incident to the powers expressly granted; third, those absolutely essential to the declared objects and purposes of the corporation — not simply convenient but indispensable ; fourth, any fair doubt as to the existence of a power is resolved by the courts against the corpora- tion — against the existence of the power.'' Dillon, C. J., in Mer- riam v. Moody's Ex'rs, 25 Iowa, 163. This was the first statement of Judge Dillon's now famous decla- ration as to the powers of munici- pal corporation, and which has been quoted approvingly by near- ly every court of last resort in this country. zsHaughawout v. Hubbard. 131 393 § 440 THE LAW OP SPECIAL ASSESSMENTS. the imperative duty of common councils to adjust assessments presented for review so as to conform them to the actual bene- fits accruing to each of the abutting property owners, under a statute authorizing a review and alteration of a prima facie assessment.** Discretion of council. 440. The necessity for making local improvements is a matter for the exclusive determination of the council, when the statute so directs ; and when they act within the limits of the power conferred, their determination, fairly made, with- out fraud or oppression, cannot be interfered with by the courts. They are the judges of its utility, whether it shall be treated as a local improvement in raising funds to pay for it; and have the right to declare what is a public improve- ment, although they cannot make such a declaration arbitra- rily or unreasonably without reference to benefit.^® The cfuestion of benefit is one of fact, and may be tested in a direct proceeding.*® The right to determine the necessity in- cludes the minor rights of determination as to route, extent, cost and other details, and such discretion, when honestly and reasonably exercised, without oppression, will not be reviewed by the courts.*^ In making street improvements, gas light Cal. 675, 63 Pac. 1078; Davies v. 173, 38 N. E. 626; Pike v. Chi- Saginaw, 87 Mich. 439, 49 N. W. eago, 155 111. 656, 40 N. E. 567, 667. Harris v. People, 218 111. 439, 75 2* Adams v. Shelbyville, 154 N. E. 1012; In re Westlake Ave. Ind. 467, 49 L. R. A. 797, 77 (Wash.), 82 Pac. 279; Johnson v. Am. St. Rep. 484, 57 N. E. 114. Tacoma (Wash.), 82 Pac. 1092. 25 Dewey v. Des Moines, 101 ^oHewes v. Glos, 170 111. 436, Iowa 416, 70 N. W. 605. 48 N. E. 922. When the ordinance provides Colorado. for an improvement complete in 27 Denver v. Campbell, 33 Colo. itself, it does not follow that it 162, 80 Pao. 142. will be void because the utility IlUnois. of the improvement might be en- The question as to the necessity hanced by the addition of some- for a local improvement is for thing which the council have seen the council, and evidence thereof fit to omit. Vane v. Evanston, is incompetent, but its admission 150 111. 616, 37 N. E. 901; 111. is not reversible error where it Cent. R, Co. v. Decatur, 154 111. could have had no prejudicial ef- 394 JUEISDICTION ■ • THE ORDINANCE. § 440 feet. C. & N. P. R. R. Co. v. Chicago, 172 III. 66, 49 N. E. 1006. Where the statute vests in the corporate authority the power to open streets, the courts will not interfere with their discretion. Dunlap V. Mount Sterling, 14 111. 251; Curry v. Mount Sterling, 15 111. 320. In the passage of an ordinance providing for a local improvement the city council is clothed with power to determine what local im- provement is required, its nature and character, when it shall be made, and the manner of its con- struction. These are matters rest- ing in the discretion of the city council, and that discretion, when honestly and reasonably exercised, can not be reviewed in the courts. Dunham v. Hyde Park, 75 111. 371; Fagan v. Chicago, 84 111. 231. The opening of the streets of a city, and the nature and charac- ter of the street improvement are matters resting solely in the dis- cretion of the municipal author- ities, when they have proposed no plan of improvement and have done nothing to estop them from dealing with the streets accord- ing to their discretion. Washing- ton Ice Co. V. Chicago, 147 111. 327, 37 Am. St. Rep. 222, 35 N. E. 378. In the passage of an ordinance providing for a local improvement, the city council is clothed with power to determine what improve- ment is required; its nature and character, when it shall be made and the manner of its construction. These are matters resting in the discretion of the council, and that discretion when honestly and reasonably exercised, cannot be reviewed by the court. English v. Danville, 50 111. 92, 36 N. E. 994. It is for the city council to de- termine the necessity for making a public improvement. Courts will interfere only when ordinance is unreasonable. McChesney v. Chicago, 171 111. 253, 49 N. E. 548. An objection to the confirmation of a special tax for water and sewer connections that the city paid too much for the connections, will not be entertained where there are no allegations of favor- itism, fraud or gross abuse of the council's discretion. Palmer v. Danville, 166 111. 42, 46 N. E. 629. The construction of a sidewalk under an ordinance passed by a city in strict pursuance of a valid statute, will not be enjoined upon the sole ground that there is no necessity for such improvement, unless it clearly appears that the ordinance is oppressive. The fact that no pressing judgment for the sidewalk exists, and that it might be in the end better to wait until the population of the village in- creases, does not make the con- struction of a sidewalk so op- pressive as to call for equitable in- terference. Walker v. Morgan Park, 175 111. 570, 51 N. E. 636. Indiana. The selection of the location of a local improvement, as the route for a ditch, is a matter of discre- tion vested in the inferior tribunal or corporate authorities, which discretion cannot be reviewed on appeal, except for abuse. Selec- tion of the line of a former ditch 395 § 440 THE LAW OF SPECIAL ASSESSMENTS. is not such an abuse. Sample v. Carroll, 132 Ind. 496, 32 N. E. 220. Maryland. Where a city has power to im- prove streets the courts will not inquire as to the necessity of the exercise of the power, or the re- fusal to exercise it, or the method of its exercise. Alberger v. May- or, etc., C4 Md. 1, 20 Atl. 988. In the absence of fraud or mani- fest invasion of private rights courts cannot review the exercise of the discretion vested in the common council in determining the necessity of repaving a street at the expense of the abutting owners. Mayor, etc., of Baltimore v. Stewart, 92 Md. 535. Minnesota. It is competent for the legisla- ture to vest in the common coun- cil the determination of the ques- tion as to whether a local im- provement shall be made without subjecting the property benefited to taxation in excess of the special benefits, as well as the whole matter of determining whether the improvement shall be made, and that their determination, ex- cept for fraud or mistake, shall be final and conclusive. Rogers v. St. Paul, 22 Minn. 494; Carpenter V. St. Paul, 23 Minn. 232. Missouri. A property owner cannot refuse to pay a street improvement tax because only the center of the street was improved, and the im- provement does not extend to the sidewalk. The local authorities are vested with discretion in such matter. Moran v. Lindell, 52 Mo. 229. Montana. Where the legislature has desig»- nated the council as the proper body to make the assessment, has clothed it with discretion in the matter and authorized it to act upon its own judgment, its de- termination is conclusive in the absence of fraud or such gross mistake as to preclude the exer- cise of sound judgment. Danforth V. Livingston, 23 Mont. 558, 59 Pac. 916; Beck v. Holland, 29 Mont. 234, 74 Pac. 410. NetD York. Under a general legislative grant to make and lay out streets, etc., the authority conferred upon the municipality to pave streets and lay assessments upon prop- erty benefited gives the council full discretion, save as curtailed or controlled by legislative action, and this discretion is an impor- tant and valuable constituent of the power conferred, is in the pub- lic interest, and will not be deemed revoked by implication or doubtful inference. In re Dugro, 50 N. Y. 513. Wisconsin. General powers granted to municipal authorities to direct the construction of new sidewalks im- plies the power to direct as to the material of which they shall be constructed and the width and manner of construction; and the discretion of the authorities - in that manner cannot be Interfered with by the courts unless such discretion is exercised in such a way as to be clearly unjust and unnecessarily oppressive to the lot- owners. Benson v. Waukesha, 74 Wis. 31, 41 N. W. 1017. 396 JUEISDICTIOIT THE OEDINAITOE. § 441 companies may be compelled by the council to remove the location of their pipes, if necessary, and without compensa- tion for the expense incurred.^® Although a charter makes the expense of improving streets and sidewalks chargeable to abutting property, and not against the city or ward, yet such work is public work, and the officers of the city act as public agents in letting the contract.''® But such a provision authoriziug the council to fix taxing districts, to determine whether the whole or a portion of the cost of a public im- provement shall be assessed on the lands benefited, and the proportionate amount to each on account of benefits, does not mean that the whole amount, justly or unjustly, may be so laid, nor does it confer an arbitrary power on the council; but such form of taxation has been repeatedly held void, and the council is properly vested with such discretionary power.*" 441. Where the council is vested with power to decide all questions of error or irregularity in making a special assess- ment, objections that the notice was not given for the required length of time, or that the resolution did not state the kind of asphalt to be used, and was silent as to curbing and guttering, are matters of irregularity merely, and do not go to the valid- ity of the proceedings, and are waived by failure to appear before the council, or object.*^ The method of connecting a sewer with the premises of a property owner is very largely within the discretion of the common council, which is not open to judicial review when properly exercised.*^ The ne- cessity for the paving of a street is not to be determined solely by the question of benefit to abutting property, but from all the circumstances, including the use made of the street by the public generally,** and the power of the legislature to regu- 28 In re Deering, 93 N. Y. si Owen v. Marion, 127 Iowa, 361. 469, 103 N. W. 381. 29 Mitchell V. Milwaukee, 18 saBoyee v. Tuhey, 163 Ind. Wis. 99. 202, 70 N. E. 531. 30 Beecher v. Detroit, 92 Mich. ss Dewey v. Des Moines, 101 268, 52 N. W. 731. Iowa, 416, 70 N. W. 605. 397 § 442 THE LAW OF SPECIAX ASSESSMENTS, late the construction of public works cannot be foreclosed by any contracts of a municipal corporation.** What council may do. 442. It may order gravel in one street for the use of pav- ing another, it not appearing that the contract price was thereby increased ; *^ its right to consider the report of assess- ments and adjust the same according to the benefits received, is a quasi judicial power, and their judgment, fair on its face, cannot be collaterally attacked if the council has jurisdic- tion ; ** power delegated to it to construct sewers by special assessment invests it with authority, in its discretion, to pro- vide for all necessary appurtenances in connection there- with ; ^'' it may cause sidewalks to be constructed under a grant of power to cause streets to be paved, graded or macad- amized ; *® its act in ordering a street paved is not rendered fraudulent merely because there were but few houses on the part of the street covered by the order, that the abutting owners objected, nor because an inducement to ordering the work was the fact that the street was the main thoroughfare to the State fair grounds, and as such used during the holding of the fairs by a large number of people, both residents of the city, and others,*® and it has been held that where the charter leaves to it the power to fix an assessment district, its judg- ment as to the lands benefited is conclusive ; *" it may sus- pend, defer or postpone the work on a public improvement which it has resolved to cause to be done, and to resume it as well, the exercise of such power being entirely within discre- s*In re N. Y. Prot. Ep. School, 3» Dewey v. Dea Moines, 101 46 N. Y. 178. Iowa, 416, 70 N. W. 605. 35 Shimmons v. Saginaw, 104 But from the facts stated, it Mich. 511, 62 N. W. 725. would seem that the ordinance 36 Shank v. Smith, 157 Ind. 401, was unreasonable and oppressive. 55 L. E. A. 564, 61 N. E. 932. 40 Brown v. Saginaw, 107 Mich. 37 Boyce v. Tuhey, 163 Ind. 202, 643, 65 N. W. 601. 70 N. E. 531. This is a necessary deduction 38 Burlington & M. R. Co. v. from the false premises of legisla- Spearman, 12 Iowa, 112. tive omnipotence. 398 JTJEISBICTION THE OEDHifAirCB. § 443 tion, without reference to the reason which leads to such post- ponement or resumption ; *^ it may reconsider a resolution fixing an assessment district, and enlarge the district by sub- sequent action ; *^ at a subsequent meeting reconsider its pre- vious action rejecting all bids, and award the contract for the street improvement to one of the original bidders without re- advertising; *^ its judgment upon a question of parliament- ary practise will not be disturbed by the courts ; ** and it is no objection to the validity of the assessment that the order levying it did not receive two separate readings as required by the council.*® Where a charter requires a two-thirds vote of the council to pass a street improvement resolution over a remonstrance, the journal must show that two-thirds of the council actually voted to order such improvement, and no pre- sumption of coanpliance with the charter can be drawn from the passage of the resolution by a lAva voce vote.*^ In mat- ters involving the discretion or judgment of the council, where no bad faith or fraud is alleged, parties cannot go be- hind the recorded vote to show either want of knowledge or good judgment. *'^ What council may not do. 443. Where a street was well paved with macadam, little worn and in good condition, and good for many years' service in the outskirts of the city, where it was, and which had been laid by municipal authority and paid for by special assess- *i Davies v. Saginaw, 87 Mich. 48 Buckley v. Tacoma, 9 Wash. 439, 49 N. W. 667. 269, 37 Pac. 446. A work may be let iinder an The board of public works can- original contract, even after re- not proceed until the council first advertising for new bids. passes a resolution reciting the *2 Trowbridge v. Detroit, 99 fact of the remonstrance, and Mich. 443, 58 N. W. 368. then ordering the board to pro- *3 Ross V. Stackhouse, 114 Ind. eeed notwithstanding. 200, 16 N. E. 501. 4T Davies v. Saginaw, 87 Mich. ** Davies v. Saginaw, 87 Mich. 439, 49 N. W. 667. 439, 49 N. W. 667. For construction of charter of •46 Holt V. Somerville, 127 Mass. Olympia, see McNair v. Ostrander, 408. 1 Wash. 110, 23 Pac. 414. 399 f 443 THE LAW OF SPECIAL ASSESSMENTS. ments, the laying of an asphalt pavement only four or five years subsequent is unreasonable and oppressive, and a spe- cial assessment to pay the same is void.** Their decision a& to whether or not an improvement is local is subject to review by the courts, and the local authorities cannot arbitrarily de- termine that an improvement general in character shall be treated as local.*® They are invested with power to accept an improvement when completed, but not to accept a different improvement from the one for which the assessment was- levied,®" nor can they set aside an assessment of benefits- which has been paid, unless by special statutory authority.^*^ Where the charter requires the joint action of the mayor and the council in ordering street work, the action of the council alone, in grading a street, is a nullity; but the city is not liable for damages caused thereby, although the councilmen. might be liable as trespassers.^^ It can act only by written, resolutions or by-laws, duly adopted, as the proceedings can- not be left in parol.®* A charter requirement for a record of vote in certain cases is not complied with by a record show- ing the resolution " was adopted unanimously on call," as the ayes and noes must be entered at large on the minutes.®* A street superintendent has no power to impose conditions in a street contract not authorized by the council, such as exclud- ing Chinese laborers, fixing hours of work, etc.®® The laying^ out and opening of streets by the common council of a city is the exercise of its legislative functions, and any contract made by the city with an individual or corporation, by which it agrees that it will not in the future open or extend a street in any particular place or part of the city, is an abnegation *8 Field V. Barber Asphalt Pav- b2 Thomson v. Boonville, 61 Mo, ing Co., 117 Fed. 925. 282. *9Hewes v. Glos, 170 El. 436, osMoser v. White, 29 Mich. 59,- 48 N. E. 922. Powers' Appeal, 29 Mich. 504. 50 Gage V. People, 200 111. 432, 64 steckert y. E. Saginaw, 22 65 N. E. 1084. Mich. 104. 61 Campion v. Elizabeth, 41 N. ^o Hellman v. Shoulters, 114 CaU J. L. 355. 136, 44 Pae. 915, 45 Pac. 1057. 400 JUEISDICTIOW THE OBDINAJTCB. §§ 444, 445 of its legislative powers, unauthorized by its charter, and may be alike destructive of the convenience and prosperity of the municipality, and is void.^® Delegation of authority. 444. The legislature may delegate to municipal corpora- tions the power to open, improve and pave streets ; and in the exercise of such powers by such corporations, its discretion within the legitimate sphere of its authority is proportionately as wide as is the like discretion possessed by the legislature of a state, and is not subject to judicial revision or reversal.®^ But the municipal government cannot in turn delegate to of- ficers or boards any of the discretionary powers vested in them, although it is competent to vest them with ministerial powers, and the courts will scrutinize any attempted de- parture from the rule with much care.°® Ministerial powers. 445. It is competent for a city to delegate to a commit- tee the requisite authority to construct a sidewalk after pass- ing an ordinance requiring its construction ; ^* or to make the measurement of the assessment where the basis thereof is fixed by statute ; ®** where the charter provides that street work shall be superintended by a certain city official, who, under the common council shall prescribe the manner in which the work shall be done, a street may be properly regu- lated without the establishment of a fixed grade.^^ A resolu- te Matter of First Street, 66 too late and a precedent become Mich. 42, 33 N. W. 15. fixed beyond judicial control." 67 Barber Asphalt Paving Co. v. Agnew, C. J. in Seely v. Pitts- Prench, 158 Mo. 534, 54 L. R. A. burgh, 82 Pa. St. 364, 22 Am. Eep. 492, 58 S. W. 934. 760. 58 " It is fortunate for the 59 Brewster v. Davenport, 51 rights of the people when a case Iowa, 427, 1 N. W. 737. occurs causing the courts to pause eo Dancer v. Mannington, 50 W. and to retrace the boundaries of Va. 322, 40 S. E. 475. delegated power. Thus the stealthy ei State v. New Brunswick, 30 steps of invasion may be detected N. J. L. 395. and the power denied, ere it be 26 401 § 445 THE LAW OF SPECIAL ASSESSMENTS. tion adopted by the city council of the city of Omaha, direct- ing that certain permanent sidewalks shall be constructed " of stone or artificial stone^" is a compliance with the provisions of an ordinance in force in that city, requiring the mayor and council to designate the kind of material with which perma- nent sidewalks shall be constructed, and does not amount to a delegation of the authority to determine of what material permanent walks shall be constructed,®* and one directing the city clerk to publish the legal notice, which was done, is not such a delegation to another of a material discretionary power as must be solely and wholly exercised by the council in order to prevent its subsequent acts from being void, and was at most an irregularity, cured by the provisions of the charter, under which the proceedings are upheld as valid and effectual;®* where the charter prohibited the municipality from paving a street in which gas and water mains were lo- cated without first requiring the connections to be made and pipes run to the curb lines, the common council, having taken the required steps preliminary to ordering the work to be done at the cost of the property fronting on the street, includ- ing a formal resolution for paving the street and directing the preparation of plans and specifications for water and gas service and connections, had authority by recorded vote to delegate to the board of public works the mere executive duty of giving the notice and causing the work to be done, in the event of the property owners failing to do it within the time limited.** An attempt to vest discretionary power in a council com- mittee and the city engineer with reference to an improve- ment, is imauthorized and void, whether attempted by the terms of the ordinance, or at the instance of a mass-meeting of citizens.®" «2 Richardson v. Omaha (Neb.), «* Gleason v. Waukesha Co., 103 104 N. W. 172. Wis. 225, 79 N. W. 249. 63Gilmore v. Utica, 131 N. Y. e 5 People v. MoWethy, 177 111. 26, 29 N. E. 841. 334, 52 N. E. 479. 402 JURISDICTION THE OEMKAirCB. §§ 446, 447 446. A council cannot, by contract or otherwise, delegate to the city engineer the authority to establish sewers and to provide plans and means for their construction, nor the power to terminate a contract for the construction of a sewer.®* Nor delegate to two or more of its members author- ity to give notice to such citizens as they want to select, to construct foot pavements in front of their lots ; ®'^ or to the city engineer or other official the legislative function of es- tablishing a street grade ; *® or the necessity for making a street improvement®* 447. A contract for a street improvement which gives to the superintendent of streets the power to increase or di- minish the cost of the improvement, after the contraxjt has been entered into, by requiring a greater or less amount of material for its completion as he shall determine, renders the assessment invalid, ''" and a clause in the specifications for a public improvement that a certain official shall direct the time and manner of beginning and carrying on the improvement does not vest such officer with legislative discretion.^^ Nor can the discretion vested in a common council be delegated to a street superintendent and city engineer. And where the specifications leave it to their determination as to whether more or less concrete is to be used, and the cost thus increased or decreased indefinitely, so the property owner may not know the ultimate cost, the proceedings are invalid.^^ «8 Neill V. Gates, 152 Mo. 585. ti McChesney v. Chicago, 152 87 Whyte V. Mayor, 2 Swan, 364. 111. 543, 38 N. E. 767. 08 De Witt Co. V. Clinton, 194 ''"N. P. Perrine, etc., Co. v. 111. 521, 62 N. E. 780. Pasadena, 116 Cal. 6, 47 Pac. 777. 69 Murray v. Tucker, 10 Bush, As to a delegation of authority 240. within narrow limits, which was 70 Bolton V. Gilleran, 105 Cal. held valid, see Mayor, etc., v. 244, 45 Am. St. Rep. 33, 38 Pac. Stewart, 92 Md. 535, 48 Atl. 165. 881; Stansbury v. White, 121 Cal. Puhlic Purpose. Jury Trial. 433, 53 Pac. 940; Chase v. Los Under a charter authorizing a Angeles, 122 Cal. 540, 54 Pac. city to levy a special tax for 414; California Imp. Co. v. Eey- building piers and breakwaters to nolds, 123 Cal. 88, 55 Pac. 802. protect the lake shore within the 403 § 448' THE LAW OF SPECIAL ASSESSMENTS. The contract — In general. 448. The making of a valid contract for doing public work, in those states where such work is to be paid for by special assessment, is a jurisdictional prerequisite to the es- tablishment of a valid charge against property liable for the cost of the improvement, and the intent of the statutory pro- visions requiring such contracts tO' be founded on sealed pro- posals and awarded to the lowest or best bidder, is to require competition on all important items of contemplated work.''* A written proposal by the authorities for the requisite work, a written bid to do the proposed work, and a written accept- ance of the bid by such authorities together constitute a bind- ing contract, into which all oral negotiations between the par- ties are merged, and parol evidence is inadmissible to vary its city limits, and providing for a jury of six to assess the benefits, their proceeding is not a jury trial, but » special proceeding in the nature of a commission for a public purpose, and the votes of a majority control. Soens v. Eacine, 10 Wis. 271. But where there is a delegation of power for a private purpose, all must concur, unless otherwise provided in the act delegating the power. Id; Walker v. Rogan, 1 Wis. 597; Beaver Dam v. Frings, 17 Wis. 404. Improvement hy mmier. An abutting property owner cannot, by voluntarily making an improvement in a street, preclude the corporate authorities from improving it in a manner author- ized by statute, and required by the wants of the public and others upon the same street. Parsons v. Columbus, 50 Ohio St. 460, 34 N. E. 677. Council control over funds. Special assessments funds are not included in a charter pro- vision that the surplus of all funds shall be transferred to the general fund, and be under the control of the common council. Thayer v. Grand Rapids, 82 Mich. 298, 46 N. W. 228. Ordering improvement — Two- thirds vote. A statute providing street im- provements may be ordered by a two-thirds vote of the city coun- cil, is sufficiently complied with where the council adopted the mo- tion to enter into the contract, and the assessment was confirmed by the requisite vote, although less than two-thirds voted for the original resolution, so that the judgment cannot be collaterally attacked in an action for the fore- closure of the assessment lien. Brown v. Central Bermudez Co., 162 Ind. 452, 69 N. E. 150. 73 Allen v. Davenport, 65 C. C. A. 641, 132 Fed. 209; In re Mer- riam, 84 N. Y. 596. 404 JURISDICTION^ THE OKDINANCB. § 449 terms. ^* Single contracts for single improvements are the rule, and several or separate contracts for one improvement are invalid^ and confer no authority to impose an assessment, unless specially empowered by statute.''® A contract made before the passage of the assessment ordinance is invalid, and cannot be validated by the subsequent passage of an ordi- nance confirming it; '^^ but an assessment is not vitiated be- cause the contract was let for the paving before the assess- ment was made.'''^ It is a matter of statutory regulation. Contracts for an entire improvement which is to be borne partly by the public and partly by the owners of property as- sessed, should contain data from which the actual cost of the part constructed by special assessment, can be ascertained, as private owners are entitled to a rebate of the amount of the assessment exceeding the actual cost.''* And when the writ- ten contract, required by statute, does not describe the work to be done, nor refer to the specifications, there is no valid contract, and therefore no valid lien for a street assessment, even if the work be done strictly in accordance with the speci- fications ; ''^ but it need not follow the precise language of the statute if by fair and reasonable construction it contains its essential conditions.*" Bids and bidders. 449. It is a material and important right of a property owner assessed for a local improvement that there shall be free competition in bidding, unrestricted by illegal condi- tions, the natural tendency of which is to increase the amount of the bids ; and where a property owner complains that there was an illegal restraint of competition in bidding, he must 74 McDonald v. Poole, 113 Cal. ^TLefevre v. Detroit, 2 Mich. 437, 45 Pac. 702; Wiles v. Hoas, 586. 114 Ind. 371, 16 N. E. 800. ts Thaler v. West Chicago Park 76 Treaner V. Houghton, 103 Cal. Com'rs, 174 111. 211, 52 N. E. 53, 36 Pac. 1081. 116. 76 Paxton V. Bogardus, 201 111. 79 Sehwiesau v. Mahon, 110 Cal. 628, 66 N. E. 853. 543, 42 Pac. 1065. 80 Taylor v. Palmer, 31 Cal. 240. 405 § 450 THE LAW OF SPECIAL, ASSESSMENTS. show that it was injurious to the public, and actually entered into the competition in some way, but he need not show that it actually increased the cost of the work®^ The bid of the lowest responsible bidder, may be rejected if it be shown to have resulted from a combination between bidders, or from the acts of the successful bidder to limit the number of bid- ders or increase the contract price.*^ A city council has power to advertise for bids and contract for paving a street, before passing an ordinance for doing the work, if such steps were taken by proper resolution.** Lowest bidder. 450. Where neither charter nor general ordinance pro- vides that the council shall advertise for proposals, or let street improvement contracts to the lowest bidder, the council may in its discretion omit either or both without rendering the contract void, the general statute providing that " when such work shall by the board of aldermen be ordered to be done, the same shall be done in the manner and with the materials to be designated in such ordinance.** But where a charter provides that a contract shall be let to the lowest bid- der, after advertisement, and provides that a bond must be given to secure the city, failure to comply with the terms of the statute makes the contract voidable, and creates no obliga- tion that can be enforced against either party.*^ A violation siMcChesney v. People, 200 111. the closing of bids, in accordance 146, 65 N. E. 626. with custom. Cass Farm Co. v. Opening bids. Detroit, 124 Mich. 433, 83 N. W. Under an advertisement calling 108. for sealed proposals for work to 82Grivins v. People, 194 111. 150, be received at the office of the 88 Am. St. Hep. 143, 62 N. E. board of public works until a cer- 534. tain hour, an ordinance providing ss Springfield v. Weaver, 137 that bids for public work shall Mo. 650, 37 S. W. 509, 39 S. W. specify a time and place where 276. they shall be opened is sufficiently »* Warren v. Barber Asphalt complied with, the bids being Pav. Co., 115 Mo. 572, 22 S. W. opened in public by the board at 490. their office at the hour fixed for se Allen v. Davenport, 65 C. 0. A. 641, 132 Fed. 209. 406 JUEISDICTION THE OEDINAJfCE. § 450 of such provisions will be regarded as prima facie affecting the substantial justice of the special tax levied to pay for the work.*® But a mere averment that a certain contract for street work was not let to the lowest bidder shows no violation of law in that respect, unless accompanied by further aver- ments showing said lower bid to have been made in such form, and accompanied by such guarantee, as were lawfully required by the municipal authorities,*^ and evidence that the contract was awarded to one who was not the lowest bidder is receivable without showing fraudulent collusion.** It has been held that where the charter requires the contract to be awarded on the most " favorable " proposal, the lowest bidder is not entitled to it as a matter of law. The presumption of official integrity attaches to the council, and mere proof that there was a lower bid than the one accepted is not alone suffi- cient to impugn its action.** An alleged mistake in the lowest bid does not authorize the council to permit it to be withdrawn, and then award the contract to the next lowest' bidder, without re-advertising.*" The right to reject any and all bids is, however, usually reserved to the municipal authorities, and it is in their discretion to reject all proposals, and re advertise.*^ 86 Wells V. Burnham, 20 Wis. Co. v. Wagner, 139 Pa. St. 623, 113. ' 21 Atl. 160. 87 Dean v. Borschenius, 30 Wis. Conflict between statute and ordi- 236. ntmce. 88 Brady v. Mayor, 20 N. Y. Where the statute provides that 312. all contracts for public improve- 89 Gilmore v. Utica, 131 N. Y. ments amounting to over $500 26, 29 N. E. 841. shall he let to the lowest re- »" Such action was illegal, aa sponsible bidder, an ordinance for the council were without power to a street improvement, wherein is take such action in the premises, reserved to the board the right and deprive the parties to be as- to reject any proposal, is in con- sessed of the benefit of a letting to flict therewith, and void. L. S. the lowest bidder. Twiss v. Port & M. S. R. Co. v. Chicago, 144 Huron, 63 Mich. 528, 30 N. W. 111. 391, 33 N. E. 602. 177. Information should Be furnished 91 Walsh V. Mayor, 113 N. Y. bidders. 142, 20 N. E. 825; American, etc. Under a charter requiring all 40Y § 451 THE lAW OF SPECIAI. ASSESSMENTS. Foweis of council in letting. 451. With the discretionary powers as to letting contracts vested by the legislature in the common council, the courts are extremely loath to interfere, it being presumed that the council acts wisely and in good faith, and for the best inter- ests of the city and the property owner.®^ But they have no power to materially change a contract after opening the bids for doing the work, and award it to one of the original bid- ders without re-advertising, or to insert therein items or terms not in the accepted bid.** In providing for street improve- ments and letting contracts therefor the board of aldermen do not act in a legislative capacity, but in an administrative or business capacity, and as such subject to review by the courts on charges of fraud or corruption,®* but under a statute au- thorizing the rejection of the lowest bid for doing public work for the reasons therein specified, its determination as to such street work to be let by contract to the lowest bidder, bidders should be informed before bidding, either by the notice of the letting or by the specifications in the proper office to which it refers, of the terms of the contract as to quantity or amount of work, the time within which to be finished, and quality of materials to be furnished, if any. Kneeland v. Furlong, 20 Wis. 438. Division of contract — Invaliditjli of certificate. And where the street commis- sioners, who let the contract, at- tempt to " reserve the right to divide the work " after the bids are received, such attempt is il- legal, and the certificate for w5rk done under the contract is invalid. Such division must be made before the bids are received, so that the proposals may be made with ref- erence thereto. Id. Patented article. A city empowered by its charter to improve streets at the expense of adjoining lot owners, but re- quired to let all such work to the lowest bidder, can not con- tract for laying a patented pave- ment, owned by one person, at the expense of such lot owners. Nor would the fact that such right for said locality was freely offered for sale secure the required freedom of competition. Id. Dean v. Charlton, 23 Wis. 590, 99 Am. Dec. 205. 92 Boyd V. Murphy, 127 Ind. 174, 25 N. E. 702. 93 Pells V. Paxton, 176 111. 318, 52 N. E. 64; Smith v. Portland, 25 Or. 297, 35 Pac. 665. 94 Field V. Barber Asphalt Pav. Co., 117 Fed. 925; Weston v. Syracuse, 158 N. Y. 274, 43 L. E. A. 678, 70 Am. St. Eep. 472, 53 N. E. 12. 408 JUEISDICTIOK' ■ • THE OEDINANCE. § 451 fact is as conclusive as the verdict of a jury as to facts within its jurisdiction.*^ Under statutes authorizing the common council to order the whole or any portion of the streets of the municipality macadamized, the council has power to let the work of macadamizing separate portions of the street in one contract,®® but it is the agent of the law in making contracts for street improvements which shall be a charge upon abut- ting property, and it has no power to accept part performance so as to make abutting owners liable for the work actually done.*'' After bids are received, the council may choose be- tween bidders, and let the contract to the highest, upon condi- tion that he perform extra street improvement work not speci- fied in the ordinance or advertisement for bids, even though such extra work was never ordered by the council, by any resolution or ordinance, and may assess abutting property ac- cording to the rate imposed upon it by said bid.** ssGivin v. Simon, 116 Cal. 604, 48 Pac. 720. 96 Alameda, etc., Co. v. Wil- liams, 70 Cal. 534, 12 Pac. 530. 9T Henderson v. Lambert, 14 :Bush. 24. »8 Boyd V. Murphy, 127 Ind. 174, 25 N. E. 702. Note. — It seems difficult to rec- oncile this case with the numerous <;ases holding the contrary doc- trine. It arose from a very pecul- iar state of facts, and being an appeal from a precept, no question of fact could, under the Indiana statute, be considered; but the court decided the case on princi- j)le, and not upon the statute. ■Cost of work outside contract. Under the authority given a -city council for "the opening, ex- tending, widening, straightening up in whole or in part of any street," etc., no authority is given to include in the assessment the coat of grading and gravelling the lands talcen for the widening of the street, and an assessment therefor is illegal and creates no lien upon land in the assessment district. Wilcoxon v. San Luis Obispo, 101 Cal. 508, 35 Pac. 988. Improper performance. — Modificar tion to conform. When by the charter of a city all details of sewer construction are left to the council, and not made the basis of consent by the property owners, it is within the power of the council to waive per- formance of a sewer contract so far as the work done is not in conformity with the plans and specifications and to modify the contract to the extent of conform- ing with the work already done. Weston v. Syracuse, 158 N. Y. 274, 43 L. R. A. 678, 70 Am. St. Rep. 472, 53 N. E. 12. 409 j§ 452 THE LAW OF SPECIAL ASSESSMENTS. Frovisions tending to increase cost. 452. As the very purpose of inviting proposals for public work is to give the property owner the benefit of the lowest price which may be obtained by free and unrestricted bid- ding, it follows that conditions in the specifications or con- tract which restrict bidding or tend to increase the cost of the work, will vitiate the entire proceedings. Where contracts for local improvements are required by law to be awarded to the responsible bidder offering to do the work for the lowest sum, any provision in the specifications tending to increase the cost and make the bids less favorable to the property owners is illegal and void.^® Such provisions are commonly restrictive of the hours of daily labor that men employed by the contractor may work^ or forbidding the employment of Chinese or alien labor, or fixing the minimum rate of wages. Whatever form this restriction assumes will be disregarded by the courts, if the conditions increase the cost of the work to the taxpayers.-' The courts will not presume that the Jwrisdiction — Remonstrance. city may authorize the contractor Where the charter provides that to make such changes and addi- no further steps shall be taken in tions, and assess the amount upon a public improvement after the abutting owners, and without ad- presentation of a remonstrance ditional notice or further letting, signed by a majority of the prop- Hastings v. Columbus, 42 Ohio erty holders affected, the presenta- St. 585. tion of such remonstrance de- 89 McChesney v. People, 200 111. prives the authorities of all juris- 146, 65 N. E. 626. diction to proceed further. State i Atlanta v. Stein, 111 Ga. 789, V. Jersey City, 42 N. J. L. 575. 51 L. E. A. 335, 36 S. E. 932; Additional Requirements — Pat- Adams v. Brennan, 177 111. 194, ented drain. 42 L. E. A. 718, 69 Am. St. Eep. Where it appears to the satis- 222, 52 N. E. 314; Holden v. faction of those superintending a Alden, 179 111. 319, 53 N. E. 556; street improvement on the part Fiske v. People, 188 111. 206, 52 of a city that additional require- Am. St. Eep. 291, 58 N. E. 985; ments, not provided in the ordi- Treat v. People, 195 111. 196, 62 nance or contract, are necessary to N. E. 891 ; McChesney v. People, making the improvement satisfac- 200 111. 146, 65 N. E. 626; tory — such as putting in a pat- Glover v. People, 201 III. 545, 66 N. ented drain or increasing the E. 820; Cleveland v. Clements, width of the improvement — the etc., Co., 67 Ohio St. 197, 59 L. R. 410 JUEISDICTIOIir • ■ THE ORDINANCE. 452 specifications referred to in the proposal upon which bids for public work are invited contain illegal provisions restricting the right of contract, even though such provisions appear in the specifications set forth in the contract,^ nor will they in- validate the contract where it is made to appear, even by evi- dence aliunde, that the provisions which are on their face ob- noxious are in fact actually innocuous. Although a contract with the specifications as well as advertisement for bids, con- tained the so-called eight hour and alien labor clause, which would presumptively increase the cost, yet evidence to rebut the presumption may be introduced, to the effect that since the Supreme Court had held such clause invalid, all con- tractors engaged in public improvement work had considered them inoperative, and that they have been invariably disre- garded both by the city and the contractors.® Nor is a con- tract for doing street work rendered invalid by provisions A. 775, 93 Am. St. Kep. 670, 65 son v. People, 207 111. 334, 69 N. " ~ --- B. 843. Restrictive clause not in ordi- nomoe, and bidders ignorant of its existence. Hamilton v. People, 194 111. 133, 62 N. E. 533; Givins v. Peo- ple, 194 111. 150, 88 Am. St. Rep. 143, 62 N. E. 534; Treat v. Peo- ple, 195 111. 196, 62 N. E. 891. 2iot a part of specifications, ami did not affect bidding. De Wolf V. People, 202 111. 73, 66 N. E. 868. Objections not a/vailable on appli- cation for sale, unless dam,ag0 shown. MeChesney v. People, 200 HI. 146, 65 N. E. 626; Wells v. Peo- ple, 201 111. 435, 66 N. E. 210. Unconstitutional statute. The failure of the city or the contractor on a public improve- ment to observe the provisions of a statute prohibiting under pen- N. E. 885. A statute fixing the minimum rate of wages to be paid unskilled labor employed on public work, ia unconstitutional. Street v. Var- ney Elee. Sup. Co., 160 Ind. 338, 61 L. R. A. 154, 98 . Am. St. Eep. 325, 66 N. E. 895. When a statute prohibits the employment of Chinese laborers on the public streets, and declares null and void a contract by a contractor who violates it, such contract is forfeited by the con- tractor on the doing of the unlaw- ful act, and the city may disre- gard the contract without resort- ing to a court of equity to annul it. Portland v. Baker, 8 Or. 356. 2De Wolf V. People, 202 111. 73, 66 N. E. 868. 3 Gage V. People, 207 111. 61, 69 N. E. 635; Doyle v. People, 207 ni. 75, 69 N. E. 639; Thomp- 411 § 453 THE LAW OF SPECIAL ASSESSMENTS. therein requiring the contractor to meet all loss or damage arising out of the nature of the work done; to repair or re- place, and to leave in as good condition as when found, all permanent sidewalks, streets and alleys; to indemnify the city from all suits or claims growing out of injury or damage to person or property by reason of the work to be done ; to pay for all injuries done to water, gas and sewer pipes; or even as to what laborers shall be hired, or where material shall be purchased, where it is shovm. in the last two cases that the price of the work has not been increased thereby, and that plaintiff made no objection until the work was done, and the benefits been derived.* Guaranty of work for a term of years. 453. The work of grading, paving and otherwise improv- ing streets and highways is ordinarily paid for by laying an assessment upon the property in the improvement district, to an amount in excess neither of the cost incurred nor the bene- fit accruing. Such work involves the idea of permanency, as compared with repairs of such work, which are by comparison temporary in their nature, and should be, and usually are, payable out of the general fund. Whether or not the provi- sions contained in specifications and contracts in recent years guaranteeing the work for a term of years, tend to increase the cost of the work as including necessary repairs; or whether it is a mere guaranty of the quality of the work and its permanency, without increasing the cost, is another of those questions in special assessment proceedings upon which the courts are in apparently hopeless conflict. Numerically, the authorities holding a guaranty to keep a pavement in re- pair for a certain stipulated length of time is a guaranty of workmanship and material, and not a general obligation to make repairs, are in the majority.® If, however, the perma- alty the employment of alien *Dever v. Keokuk, etc., Bank, labor, does not invalidate the 126 Iowa, 691, 102 N. W. 542. contract, the statute being uncon- Illinois. stitutional. Chicago v. Hulbert, o Latham v. Wilmette, 168 111. 205 111. 346, 68 N. E. 786. 153, 48 N. E. 311. 412 JUEISDICTION' THE OEDINAWCE. § 453 nency of the improvement is necessary to authorize a special assessment, and for benefits only, it would seem as The increased price for guaranty and repair will not vitiate the special assessment. This case stands alone in so holding. Graham v. Chicago, 187 111. 411, 58 N. E. 393. An ordinance for a street light- ing system which provides that the contractor shall guarantee the cable system for five years, and then stand a certain test, supports the assessment. Halsey v. Lake View, 188 111. 540, 59 N. E. 234. Indiana. Retention of percentage of con- tract price a guaranty for repairs to be made by the contractor. Shank v. Smith, 157 Ind. 401, 55 L. K. A. 564, 61 N. E. 932. Iowa. Contract for paving requiring contractor to replace " defective work," under penalty, does not provide for an expenditure for street repairs, which charter re- quires to be paid by city from general fund, and is merely a guaranty or warranty of the qual- ity of the work. Osborn v. Lyons, 104 Iowa, 160, 73 N. W. 650; Allen V. Davenport, 107 Iowa, 90, 77 N. W. 532; Driver v. Keokuk, etc., Bank, 126 Iowa, 691, 102 N. W. 542. Such contract is not illegal as imposing upon abutting owners payment for future repairs, in the absence of evidence that the con- tractor's bid was increased in amount. Kansas City v. Hanson, 60 Kan. 833, 58 Pac. 474. Kentucky. Stipulation to keep street in re- pair for six months construed to mean the contractor is to make good during that time such work as was defectively done. Louis- ville V. Henderson, 5 Bush. 515. Missouri. The statute authorizes special levy for street repairs. Morse v. West Port, 110 Mo. 502, 19 S. W. 831 ; Barber Asphalt Paving Co. V. Ullman, 137 Mo. 543, 38 S. W. 458. Seaboard Nat. Bank v. Woesten, 147 Mo. 467, 48 L. R. A. 279, 48 S. W. 939, distinguishing last case, and Verdin's case, 131 Mo. 26, 33 S. W. 480, 36 S. W. 52. See, also. Barber Asphalt Pav. Co. V. Hezel, 155 Mo. 391, 48 L. R. A. 285, 56 S. W. 449. Under the very broad and gen- eral powers granted to St. Louis by its charter, it has the right to require of a contractor any guar- anties that a private person might take in order to secure the per- fection of work done for him. Sea- board Nat. Bank v. Woesten, 147 Mo. 467, 48 L. R. A. 279, 48 S. W. 939. New York. Schenectady v. Union College, 66 Hun 179, 21 N. Y. Supp. 147. Note. — The contract reads : " The party of the second part hereby covenants and agrees that it will do all the work required by such ordinance, and this contract, in such good and substantial man- ner that no repairs thereto shall be required for the term of five years after its completion." Oregon. Contract reads, that the pave- ment " shall be guaranteed for five 413 § 453 THE LAW OF SPECIAL ASSESSMENTS. if those courts that hold the contrary doctrine, that repairs are not a subject for special assessment, in the absence of im- mediate need and express statutory permission, were sup- ported by the better reason.® It is begging the question to argue that a five or ten year guaranty does not increase the years from the date when it is opened to traffic, and during said period all defects in the pavement due to its proper use as a roadway shall be repaired and made good by the contractor at his own ex- pense." Held, merely a guaranty. Allen V. Portland, 35 Or. 420, 58 Pac. 509. But see, also, Portland V. Bituminous Pav. Co., 33 Or. 307, 44 L. R. A. 527, 72 Am. St. Rep. 713, 52 Pac. 28, holding a contract conditioned somewhat dif- ferently, is one to keep in repair. OaUfomia. 6 Requirement to keep street in repair for five years. Brown v. Jenks, 98 Cal. 10, 32 Pac. 701; Alameda Macadamizing Co. v. Pringle, 130 Cal. 226, 52 L. R. A. 264, 80 Am. St. Rep. 124, 62 Pac. 394. Kentucky. Contract to keep street in re- pair for five years necessarily in- creases the burden of property holders by adding cost of repairs. Fehler v. Gosnell, 99 Ky. 380, 35 S. W. 1125. See, also, Gosnell v. Louisville, 104 Ky. 201, 46 S. W. 722. Missouri. A charter provision that paving shall be done at the expense of abutting owners, while repairs are to be paid from the gen- eral fund, renders void a con- tract entered into pursuant to an ordinance providing for the letting in one contract the work of con- structing a pavement, and of re- construction, or keeping in repair for a term of years, and tax bills issued to pay for such work are wholly void. Verdin v. St. Louis, 131 Mo. 26, 33 S. W. 480, 36 S. W. 52. But where the construction and repair may both be paid from the general fund, there is no such ob- jection. Id. The main question decided above is squarely reversed by the de- cision in Seaboard Nat. Bank v. Woesten, 176 Mo. 491, 75 S. W. 4G4, that it is lawful to advertise for and let together in one con- tract and to the same contractor, a, contract for the reconstruction of a street and its maintenance for a number of years. The decision of this question, which the court considers is final, goes upon the ground that the contract is merely one of guaranty for good work and material, and not for repairs. New York. People V. Maher, 56 Hun 81, 9 N. Y. Supp. 94. Nebraska. A contract for street paving un- der which the contractor is bound to bear the expense for ten years of " all repairs which may, from any imperfection in the said work or material, become necessary within that time,'' does not in- clude "ordinary repairs," and 414 JUEISDICTIOK THE OSDINASCH. § 454 cost of the work. A mere casual observation of modem methods of street paving, with and without such guaranty, is evidence sufficient to satisfy anyone that a pavement guaran- teed for ten years costs more than one which has no time guaranty. In cases where the amount chargeable for the item of repairs is capable of exact ascertainment, the excess may be deducted, and the assessment enforced as to the bal- ance,'' but if the contract itself be illegal, the assessment is void.* Performance of contract. 454. Contracts for public work lawfully made at the dis- cretion of the municipal authorities are binding upon the land owners charged with paying the price of the work, though injudiciously made, and acceptance of the work by the city is prima facie evidence of its proper completion, in the absence of proof of fraud. The corporate authorities are the sole judges of the manner of execution and character of public work, and when accepted by them the adjacent owners such stipulation in the contract 44 L. E. A. 527, 72 Am. St. Eep. does not contravene the charter 713, 52 Pac. 28. provision requiring "ordinary re- Washington. pairs " to be paid for by the city. McAllister v. Tacoma, 9 Wash. Eobertson v. Omaha, 55 Neb. 718, 272, 37 Pac. 447, 658. 44 L. E. A. 534, 76 N. W. 442. A contract for future repairs of Oregon. street is invalid. Young v. Ta- Where a city is authorized to coma, 31 Wash. 153, 71 Pac. 742. repair its streets at the cost of Wisconsin. abutting property, the repairs Boyd v. Milwaukee, 92 Wis. 456, contemplated are those whose 66 N. W. 603. present necessity exists in the t Fehler v. Gosnell, 99 Ky. 380, opinion of the council, and there 35 S. W. 1125; Louisville v. Clark, cannot be inserted in a contract 105 Ky. 392, 49 S. W. 18; South- for street paving, to be paid for em, etc., Co. v. Mayor (Tenn. by special assessment, a provision Ch. App.), 48 S. W. 92; Wells v. requiring the contractor to keep Western P. & S. Co., 96 Wis. 116. the paving in repair for a desig- s Portland v. Bituminous Pav. nated term of years. Portland v. Co., 33 Or. 307, 44 L. E. A. 527, Bituminous Pav. Co., 33 Or. 307, 72 Am. St. Rep. 713, 52 Pac. 28. 415 § 455 THE LAW OF SPECIAL ASSESSMENTS. cannot resist the collection of the cost thereof on the ground of defective execution ; but they are entitled to have such con- tracts performed substantially in all things according to their terms, and the authorities are without power to dispense with such performance to the gain of the contractor.^ If, after letting a contract to the lowest bidder, as required by charter, the amount of work is increased without inviting further bids, the private contract so made is without authority, and void." 455. Slight deviations from the provisions of the con- tract, or the details of the plans and specifications, but which do not increase the cost to the property assessed to pay for the improvement will not ordinarily invalidate the assessment; *'- nor will a reservation in a sewer contract of the right to the 9 Murray v. Tucker, 10 Bush, that the expense was illegally in- 240; Municipality No. Two v. Guillotte, 14 La. An. 295; Chance V. Portland, 26 Or. 286, 38 Pao. 68; Pepper v. Philadelphia, 114 Pa. St. 96, 6 Atl. 899; Elma v. Carney, 9 Wash. 466, 37 Pac. 707. 10 Ely V. Grand Rapids, 84 Mich. 336, 47 N. W. 447. But sec. State v. Jersey City, 29 N. J. L. 441, which holds that an allow- ance for extra work does not re- lieve the assessed parties from liability. Failure of Contractor — Complet- ing vxrk iiithout readvertising. Where a contract for a sewer was duly let and partly performed, and the contractor then abandoned the contract, and the work was completed, without advertising, at fair prices, but at an expense con- siderably exceeding the contract price, the assessment was not re- duced or vacated, and the court held that the failure to readver- tise, after such abandonment, is not of itself sufficient to establish creased. In re Leeds, 53 N. Y. 400. 11 Matters of detail in repaving a street under a patent process, not material or substantial varia- tions or departures from the pat- ent. Mayor, etc., y. Rayms, 68 Md. 569, 13 Atl. 383. Making a public drain wider than fixed by contract, but the expense not being increased. An- gell V. Cortright, 111 Mich. 223, 69 N. W. 48"6. Changing grade of street at slightly increased cost, which was payable out of general fund. In re Mutual Life Ins. Co., 89 N. Y. 530. As a substantial performance of a contract is necessary to a re- covery thereon, a contract to fur- nish two by six oak subsills for a sidewalk is not performed by furnishing two by four pine sub- sills, and there can be no recovery for the sidewalk under such con- tract; and there being no aceept- 416 JUMSDICTIOIT THE OBDINAJ!TCE. § 455 commissioner of public works to increase or diminish the ^oss length of the work, or certain other items, in the absence of proof of fraud. ^^ A street improvement contract made by the authority of the council cannot be varied by the city en- gineer, or other corporate officer or agent, nor would a ratifi- cation by the council of a variation so made create an obliga- tion on the part of the lot owner, although it be to his ad- vantage.^^ Where work done under a contract is accepted by the authorities, although defectively performed, the contract is the basis for determining the amount to be recovered, and not the benefit to the property assessed.-^* Under a statute providing that the board of public works " shall accept any work done or improvement made when completed according to contract, the acceptance must be in good faith, and there must be a substantial compliance with the terms of the contract. But where there has been a substantial departure from the contract terms, and the property owners interested have made complaints to the authorities, and the contractor also notified, such ovTners have the right to maintain a suit in equity to en- join the collection of the assessments^ A stipulation in a ance of the sidewalks, or waiver provement required two layers of of performance by the city, there sand, one of 4 inches and the other can be no recovery on qiumtum of 1, that the first layer should be meruit. Denton v. Atchison, 34 wet and thoroughly rammed, and Kan. 438, 8 Pac. 750. the sub-grade rolled with a roller 3 2 In re Merriam, 84 N. Y. 596. of stated weight; that the brick 13 Murray v. Tucker, 10 Bush, was to be laid upon one inch of 240. clean river sand, and upon which 1* Corry v. Campbell, 25 Ohio was to be spread another layer St. 134. of clean, dry sand, sufficient to fill 15 McCain v. Des Moines ( Iowa ) , the joints, but the work as ac- 103 N. W. 979; Bond v. Newark, tually constructed had but one 19 N. J. Eq. 376; Sehumm v. Sey- layer of foundation sand less than mour, 24 N. J. Eq. 149; Lake v. 4 inches thick, and rarely wet, the Trustees, 4 Denio, 523; Pepper subgrade not rolled with a roller V. Philadelphia, 114 Pa. St. 96, of sufficient weight, and without 6 Atl. 899; Cooley on Taxation ramming, and instead of dry river (3d Ed.) ; Elliott on Roads and sand, a mixture of loam, gravel Streets (2d Ed.), Sec. 586. and pebbles was used — there was Where a contract for street im- not a substantial compliance with 27 417 § 455 THE LAW OF SPECIAL ASSESSMENTS. contract for building a sewer that the engineer shall be the arbiter as to all questions regarding compliance with the con- tract, and amount to be paid, is valid, and his action final, in the absence of fraud or gross mistake.'* the contract, and the interested property owners were entitled to enjoin the collection of the assess- ment. McCain v. Des Moines (Iowa), 103 N. W. 979. Where a street paving contract- or has performed his contract so imperfectly that there is " a sub- stantial defect in the improve- ment," within the meaning of the statute, a property owner may, after the authorities have taken the necessary steps to sell the lots for the assessment, enjoin such sale, unless it be inequitable so to do. Stone v. Viele, 38 Ohio St. 314. Where a, street has been paved at the expense of owners benefited thereby, and the pavement is so far perfected as to be taken pos- session of by the corporate author- ities, no mere imperfection not af- fecting its usefulness, can be in- terposed to prevent a, recovery, subject to a deduction for dam- ages in consequence of the imper- fections complained of; but this indulgence will not cover fraud, gross negligence or refusal to ful- fill the whole engagement. Pep- per V. Philadelphia, 114 Pa. St. 96, 6 Atl. 899. 16 Guild V. Andrews, 137 Fed. 369. Readvertising. A resolution to re-advertise for bids for street work because of the lowest previous bid being in excess of the estimate, being one which affects the interests of the 418 city, must be approved by the mayor, or passed over his veto, in order to be valid. State v. Bay- onne, 56 N. J. L. 268, 28 Atl. 381. When, may be let in separate parts. When the board of public works is unable to obtain satisfactory bids for the whole of a proposed improvement, it may let the con- tract for a part of the work at one time and another contract for the remainder at another time. Wright V. Forrestal, 65 Wis. 341, 27 N. W. 52. Separate Contracts — Earth eas- cavated in one street to fill am- other. Where separate streets are graded under separate and dis- tinct contracts, the expense of the work may be estimated under the provisions of each particular con- tract, without reference to the ex- istence of the others, -although material excavated in one street may be used in filling another. Schenley v. Commonwealth, 36 Pa. St. 64. Compliance with statutory require- ments. A contract for street work is in- valid where the statutory require- ments to vest the assessing board with jurisdiction to do the work, have not been complied with. Daly V. San Francisco, 72 Cal. 154, 13 Pac. 321. Work not included in contract. An assessment for street work JURISDICTION ' THE OBDINAKCE. § 456 Description of work. 456. In Illinois, the statute requires the ordinance to be specific as to " the nature, character, locality and description of the improvement," " and an accurate general plan of the work to be performed, accompanied by detailed specifications, is necessary for the information of bidders, as well as in es- timating the cost of the work. If there be a statutory re- quirement that the work to be done shall conform to some general plan or pre-established grade, a strict conformance to such requirements is a jurisdictional pre-requisite.^® When done under a valid contract is not void, because it purports to in- clude the expenses of work not performed under the contract. In such a case the remedy is by ap- peal. Blair v. Luring, 76 Cal. 134, 18 Pac. 153. Objections to mode of construc- tion. The rule that objections to the mode in which an improvement was constructed cannot be enter- tained on application for sale, does not obtain where the im- provement authorized is changed for another; or the city has ac- cepted an improvement different from the one assessed for. The rule is confined to cases of an imperfect construction of an au- thorized improvement. Gage v. People, 193 111. 316, 61 N. E. 1045, 56 L. R. A. 916. Failwre of Contractoi Finishing work at increased cost. Where the city has let a con- tract for a local improvement, and the contractor has given a suffi- cient bond for its performance, and the bond becomes forfeited by nonperformance of the contract, and the contract is relet at in- creased cost, it is the duty of the authorities, before imposing an as- sessment for the work, to enforce the bond and to apply the amount collected thereon in diminution of the assessment; and an action may be maintained against the city to compel a discharge of this duty, where an assessment Ksts been imposed in disregard of it. Eno V. Mayor, 68 N. Y. 214. Proper Performance — How com- The rule is that while the hon- est fulfillment of a contract for public work may be enforced by those who are assessed to pay for it, it must be by a proceeding to enforce the duty owing by the city to the assessed owners to see that the contract is performed accord- ing to its terms. People v. Whidden, 191 111. 374, 56 L. E. A. 905, 61 N. B. 133. IT A substantial compliance with the statute is sufficient. Vane v. Evanston, 150 111. 616, 37 N. E. 901. 18 Allen V. Davenport, 107 Iowa, 90, 77 N. W. 532; Meyer v. Fromm, 108 Ind. 208, 9 N. E. 84; State V. District Court, 51 Minn. 539, 53 N. W. 800, 55 N. W. 122. 419 § 456 THE LAW OF SPECIAL ASSESSMENTS. bids for paving and grading a street, and excavating the rock found, if any, are called for, and tlie specifications give no estimate of the amount of rock excavation, a contract awarded thereon is illegal and void, as the lowest bidder is incapable of ascertainment.^* A contract referring to specifications de- clared to be annexed, when in fact none were ever shown to be annexed, or even prepared, is invalid.*" When the city engineer is required to draw up plans and specifications for street improvements, but has no authority to determine the materials to be used, a contract which leaves such determina- tion to the engineer is void.*^ But a resolution calling for grading and macadamizing a street previously graded and macadamized, instead of re-grading and re-macadamizing, is sufficient"* 19 Brady v. Mayor, 20 N. Y. 312. 20 Gray v. Kichardson, 124 Cal. 460, 57 Pac. 385. 2iBluffton V. Miller, 33 Ind. App. 521, 70 N. E. 980. 22 Wells V. Wood, 114 Cal. 225, 46 Pac. 96. A contract to macadamize a street and to use such materials as the street superintendent may re- quire, " according to the specifica- tions hereto annexed," is sufficient- ly complied with by furnishing the materials provided for in the spec- ifications. Emery v. San Francisco Gas Co., 28 Cal. 345; Palmer v. Taylor, 31 Cal. 240. The fact that the specifications upon which bids for grading a street were based embraced another street as well as the one in ques- tion, is immaterial, it appearing that profile maps showing the amount and kind of excavation and filling required in each street were separately made and filed with the specifications. Tingue v. Port Chester, 101 N. Y. 294, 4 N. E. 625. Where a city advertises for pro- posals for building certain side- walks according to plans and spec- ifications on file, and a contractor proposed to do the work accord- ingly at a definite price, and his proposal was duly accepted, the plans and specifications became a definite part of the contract. Den- ton V. Atchison, 34 Kan. 438, 8 Pac. 750. Absence of plan. Where a city charter provides that before letting contracts for sewer construction a plan and spec- ifications shall be made and filed, and the manner and style of work, and materials are not accurately set out in the plans and specifica- tions on which bids are invited, and in the contract, the charter provision is violated, there being too much left to the discretion or oral direction of ths street com- missioners. Wells v. Burnham, 20 Wis. 113. 420 JURISDICTION • • THE OSDINASC^ § 457 Time for completion. 457. Where time is made by statute, the act of parties or the contract itself, of the essence of the contract, any exten- sion of time by order of the authorities makes the contract ab- solutely void, both as to abutting owners and the liability of the city to pay for the work.^' But where time is not of the InvaXidity of tax. And in an action to set aside the tax levied for such work, proof of the allegation that " no plans for said sewer had ever been made, and the specifications did not show the grade of the proposed sewer, nor the depth of the ex- cavations of the trench, nor the manner and style of construction of the manholes therein," avoids the contract and makes the tax invalid. Id. Omission to describe materials. A resolution, which though suf- ficiently describing the proposed street grading and macadamizing, and containing a reference to specifications as to the proposed culverts, macadamizing a cross walk, yet neither intelligibly de- scribes nor refers to any descrip- tion of the materials for the pro- posed curbs and gutters included in the assessment, is void and cannot support any contract or assessment. Bay Rock v. Bell, 133 Cal. 150, 65 Pac. 299. Insufficient description. A resolution to construct cer- tain sewers with cribbing and manholes and a flush tank, and which fully fails to describe the dimensions of the flush tank, the materials to be used in construc- tion, how it is to be connected with any of the sewers, or to show whether one flush tank would serve for all of them, and which is not aiSed in description by any specifications therefor, fails to describe a material part of the work which vitiates the resolution and renders void a bid and con- tract to the work thereunder. Mc- Donnell v. Gillon, 134 Cal. 329, 66 Pac. 314. Sufficient description. An order for doing certain street work between two cross streets, " where not already done," gives jurisdiction to order the improve- ment, and is not a delegation of power, as the extent of the work is capable of exact ascertainment, and leaves nothing to discretion. Williams v. Bergin, 116 Cal. 56, 47 Pac. 877; Edwards v. Berlin, 123 Cal. 544, 56 Pac. 432. A resolution to construct sewers in certain streets, which does not prescribe the material, the num- ber of branch sewers, or the de- tails of the " automatic flushing apparatus " required, does not suf- ficiently describe the work to be done, and the assessment therefor is void. Williamson v. Joyce, 137 Cal. 107, 69 Pac. 854. 23 Raisch V. San Francisco, 80 Cal. 1, 22 Pac. 22; Beveridge v. Livingstone, 54 Cal. 54; Mahoney V. Braverman, 54 Cal. 565; Mc- Verry v. Boyd, 89 Cal. 304, 26 Pac. 885; Brock v. Luning, 89 Cal. 316, 26 Pac. 972. 421 § 458 THE LAW OF SPECIAL ASSESSMENTS. essence of the contract, and if after the time named in a con- tract for completing the work the contractor is permitted to go on and expend his time and money in completing the work, and it is accepted and paid for as a full performance of the contract, such action constitutes a waiver.^* In the absence of a mandatory statute, prohibiting such action, it would seem that the city, as one of the contracting parties, might waive strict compliance with the provisions of a contract in- serted therein by its authority, and for its own benefit, and such is the opinion of the Michigan court, in a recent case, in which it holds that the collection of an assessment cannot be defeated because of non-compliance with a contract provision for completion by a day certain under a specified penalty for each day's delay, and a showing that nothing was deducted from the contract. The penalty clause has no relation to the contract, and was not intended for the benefit of abutting irs.« Extra work, day labor. 458. It frequently happens that the most carefully drawn plans and specifications prove inadequate, and that extra Where a contract for sewer con- improvement work it is stipulated struction is let under an ordinance that the work be commenced by a requiring its completion within certain day, and the city reserves 90 days from the time the con- the right of forfeiture in ease of tract takes effect, time being of failure to commence by that time, the essence of the contract, and or to cause the work to be done a penalty of ten dollars a day to by others at the cost of the con- be deducted from the contract tractor, and the contract is in price unless completed as agreed, part performed, the city is vested if the work is not completed with- with a discretion, in case of such in the time stated, the tax bills failure, to waive default or exact issued for its payment are void; complete performance. Hubbard and an ordinance extending the v. Norton, 28 Ohio St. 116. time for completing the work, 25 Cass Farm Co. v. Detroit, 124 passed after the forfeiture of the Mich. 433, 83 N. W. 108. contract, does not vitalize the for- As the time within which the feited contract. Neill v. Gates, work is to be completed affects the 152 M^. 585, 54 S. W. 460. price on account of the expense 24 Where in a contract for street of daily .inspection, the price to 422 jmaSDICTION THE OEDINANCE. § 458 work or material may prove necessary to its proper comple- tion. The authority to order it furnished is usually con- ferred by statute on some municipal board or officer, and aside from such legislation it is believed the local authorities may contract for such extra or additional work or material, in the same manner as the original contract was let. But this power would riot authorize them to let the work by day's labor, or to fix a specified price at which certain work shall be done, and where work is required to be done by contract, hav- ing it done by day's labor renders the assessment therefor void."® The fact that a special tax bill is made to include work done by one who had no contract therefor with the city does not invalidate the whole bill and prevent all recovery thereon, when the excess can be definitely determined."'' be paid may be graduated accord- ing to the time allotted for com- pleting the work. Matter of Eager, 46 N. Y. 100. 26 In re Robbins, 82 N. Y. 141 ; In re Blodgett, 91 N. Y. 117; In re Manhattan E. R. Co., 102 N. Y. 301, 6 N. E. 590. Where an ordinance providing for a street improvement directed the work should be done in such manner as the commissioner of public works " may deem expedi- ent and for the best interests of the city and property owners," and the work was done by days' work, without a contract, the as- sessment laid therefor was de- clared invalid, the clause attempt- ing to delegate to the commission- er the method of doing the work being unauthorized, and the doing of the work other than by con- tract being contrary to charter provisions. In re Emigrant Ind. Sav. Bank, 75 N. Y. 388. Where in an advertisement for proposals for constructing a sewer, a price is fixed for the rock ex- cavation which constitutes a large portion of the work, the charter provision requiring contracts to be let -to the lowest bidder on sealed proposals, is violated, and an assessment for the work 'pro tanto void. In re Merriam, 84 N, Y. 596. Where a contract substantially follows the resolution for work to be done, and in addition the con- tractor laid a sidewalk not author- ized by the resolution, the assess- ment for the authorized work is not vitiated by a separate assess- ment for such sidewalk, but a judgment foreclosing the entire lien should be modified by deduct- ing the amount included for the sidewalk. McDonald v. Mezes, 107 Cal. 492, 40 Pac. 808. 2' First Nat. Bank v. Arnoldia, 63 Mo. 229; First Nat. Bank v. Nelson, 64 Mo. 418. 423 § 459 THE LAW OF SPECIAL ASSESSMENTS. Patented articles — Monopoly. 459. Another question regarding special assessments upon which the courts are hopelessly divided is upon the right to pave a street by a patented process, or one held by a monopoly, and assess the cost against the abutting proprietors. If such a process be used, the element of competition in public work, out of which grows much of its vitality, is large- ly eliminated. One court distinguishes between an absolute monopoly and the right to use a patented process and holds that a charter •requiring upon an advertisement the letting of work to the lowest responsible bidder prevents the city from letting a contract for paving with asphalt from the island of Trinidad, when it appears that one corporation has, by virtue of a contract with the government of the island, a monopoly of furnishing such material.^* But a federal court has held that specifications calling for Trinidad Lake asphalt are not objectionable as fostering a monopoly,^* and if the statute permit a patented pavement to be laid upon a street after petition therefor by a majority of the owners, a contract let without that petition is void.' 30 28Verdin v. St. Louis, 131 Mo. after advertisement, 'to the lowest 26, 33 S. W. 480, 36 S. W. 52; bidder. In re Dugro, 50 N. Y. Barber Asphalt Pav. Co. v. Hunt, 513. 100 Mo. 22, 8 L. R. A. 110, 18 Separate proposals. Am. St. Rep. 530, 13 S. W. 98. Where an improvement is or- 29 Field V. Barber Asphalt Pav. dered, which embraces several Co., 117 Fed. 925. kinds of work, capable of being so Nichalson, etc., Co. v. Painter, separately performed by different 35 Cal. 699. parties, some of which works are Patented pavement authorized. patented, and others not patented. Where there is a legislative separate proposals should be in- grant of power to a municipality vited for that part of the to improve streets, the common work which is not patented, council is not prohibited from pav- and for which there can be no ing a street in a manner and with competition. Matter of Eager, 46 a material not admitting of com- N. Y. 106. petitive bids by the provisions of City may secure right to lise he- a subsequent act requiring all fore letting. work to be done by contract, where The fact that a street pavement the amount exceeds $1,000, and let, was to be made with a patented 424 JUEISDICTION THE OEDINAIirCE. §§ 460, 461 Assignment of the contract. 460. The assignment by the contractor of a contract with a municipal corporation for work, is not against public policy so long as the corporation retains the personal obligation of the original contractor and his sureties ; and in the absence of anything in the statute which authorized the work pro- hibiting it, such an assignment is valid. It does not ter- minate the contract or authorize the city to repudiate it.*^ A suit to recover upon such contract, when duly assigned, may be maintained by the assignee, but he will be held per- sonally bound by its terms and conditions.*^ But where the statute, or the contract itself, prohibits such assignment ex- cept by the consent of the city council, such provision is binding, and an assignee cannot recover without proof of his compliance with such requirement.*® Construction of contract. 461. 'City charters are public acts of which courts are bound to take judicial notice.** Contracts for municipal work are to be construed according to the provisions of the charter or the general statute, or ordinance passed there- under.*® After contracts have been completed, it is too article, is immaterial, if the city ele, see Yamold v. Lawrence, 15 secured the right to use the ar- Kan. 126. tide before the letting, so that si Devlin v. Mayor, 63 N. Y. 8; any bidder on this particular work Sims v. Hines, 121 Ind. 534, 23 N. had the right to use it. Hastings E. 515; Burnham v. Milwaukee, V. Columbus, 42 Ohio St. 585. 69 Wis. 379, 34 N. W. 389. Unauthorized use mil not avoid '^ Ernst v. Kunkle, 5 Ohio St. assessment. 520; Campbell v. District of Co- The use of patented materials lumbia, 117 U. S. 615, 29 L. ed. • for street work, even if unauthor- 1007, 6 Sup. Ct. Rep. 922. ized, will not avoid the assessment sa DefiFenbaugh v. Foster, 40 Ind. therefor, it not being shown that 382. the contract either required or s* Janesville v. M. & M. E. Co., prohibited the use of patented 7 Wis. 484; Terry v. Milwaukee, material. Dunne v. Altschul, 57 15 Wis. 490; Alexander v. Milwau- Cal. 472. kee, 16 Wis. 248; State ex rel. As to whether a city may not Cothren v. Lean, 9 Wis. 279. let a contract for a patented arti- as New Albany v. Sweeney, 13 425 § 462 THE niAW OP SPECIAL ASSESSMEliTTS. late to raise questions of alleged irregularities in letting them on other grounds of invalidity. The city authorities could doubtless have been compelled to proceed properly, by appro- priate action in apt time.** The legislature has power to ratify a contract entered into for a municipal purpose, which is ultra vires; and 'thus ratified it is valid and binding.*'^ Municipal contracts are to be construed generally by the same broad rules of reason and legal interpretation as other con- tracts, subject to the restrictions upon the powers of muni- cipal authorities to enter into them, of which limitations the contractor is chargeable with knowledge.** Liability of city on contract. 462. This subject has been thoroughly discussed else- Ind. 245; state v. Michigan City, 138 Ind. 455, 37 N. E. 1041. 8« Spalding v. Denver, 33 Colo. 172, 80 Pae. 126. 37 Brown v. Mayor, 63 N. Y. 239. 38 Murphy v. Louisville, 9 Bush. 189. CONTKACTS HELD VALID. California. Believing officer from statutory liability. A contract in which there is a clause relieving the street super- intendent from statutory liability, may be void between the parties thereto as against public policy; but does not affect the rights of the property owner, nor render it void as to him, nor prevent a recovery against him for the amount of the assessment, the un- authorized clause not being in the proposal or influencing the bids. McDonald v. Mezes, 107 Cal. 492, 40 Pac. 808. Agreement with contractor to ac- cept less. An agreement between a, street improvement contractor and abut- ting owners by which he agreed to accept less than the amount of the assessment, is not ground of avoiding the assessment at the suit of one who has not been prejudiced by such agreement. Duncan v. Ramish, 142 Cal. 686, 76 Pac. 661. But see Brady v. Bartlett, infra. Illinois. Not let in time. Objections to the validity of a contract for sewer construction as not being let within the time lim- ited by statute, there being noth- ing in the record to sho^ the ob- jector was in any way injured, comes too late after application for sale on the unpaid installment. Gage V. People, 213 III. 468, 72 N. E. 1108. Kansas. Interest of memier of council in. Where a partnership enters in- to a contract with a city to build sidewalks, and a member of the firm thereafter becomes a, member of the council, a, lot-owner v/hose 426 JUEISDICTIOlir • THE OEDINAlirCB. § 462 lot has been sold for the non- payment of the special assessment against it to pay for such sidewalk is not on that account entitled to have the sale set aside, or the issue of a tax deed enjoined. The contract was valid when made, and neither party without the con- sent of the other can avoid the agreement. Lawrence v. Killam, 11 Kan. 499. Louisiana. Unavoidable abridgment of work. The fact that the full extent of the work contemplated by ordi- nance was unavoidably abridged does not invalidate the contract so that the contractor loses the entire benefit of the work done, the general purpose being accom- plished. But the abutting own- ers may claim a proportionate re- duction. Kelly V. Chadwick, 104 La. 719, 29 So. 295. Minnesota. Failure to require bond of con' tractor. The failure of a city to require a bond from a contractor to pave streets under an entire agree- ment, void because in excess of the authorized limit of municipal indebtedness, does not render the city liable under chapter 321, p. 535, Laws 1901, for that neglect to a person furnishing materials under a subcontract. Section 9, c. 382, p. 695, Laws 1903, validat- ing such contracts and authoriz- ing the payment of evidences of indebtedness already issued, does not impose liability on the part of the city to such subcontractor. Kettle River Quarries Co. v. E. Grand Forks (Minn.), 104 N. W. 1077. New York. Purchase of pipe from dtp. A requirement in an advertise- ment for proposals for sewer work that the contractor purchase the required pipe from the city, is valid, the pipe having been pur- chased by the city under a con- tract let after a public bidding, and furnished by it at contract price, is proper and lawful. In re Merriam, 84 N. Y. 596. Ohio. Contractor appropriating material to his own use. Where a contractor, by consent of the city, appropriated to his own use an old Nicholson pave- ment in the street to be improved, the reasonable value thereof should be ascertained and deducted from the amount to be assessed against the property owners in favor of the contractor. Hastings v. Co- lumbus, 42 Ohio St. 585. Oregon. Limit of indebtedness reached. Though the limit of a municipal indebtedness has been reached, a contract for street improvements, providing for payment out of a fund to be raised by assessment of the locality improved, is valid, since no present indebtedness is incurred thereby. Little v. Port- land, 26 Or. 235, 37 Pac. 911. Washington. Liferent methods of payment on one street. The fact, that one portion of a street was improved by contract and another portion under direc- tion of the town authorities, and the latter portion paid for out of the general fund would not render one assessment for the whole 427 § 462 THE lAW OF SPECIAL ASSESSMENTS. street void, nor show an intent on part of the town to assess only the portion of property abutting the improvement under the con- tract, when the resolution for the improvement in express terms cre- ated the whole street an assess- ment district for purposes of im- provement. Tumwater v. Pix, 18 Wash. 153, 51 Pac. 353. CONTRACTS HELD INVALID. California. Method of payment changed by statute. Where a contract for street im- provement work provided for pay- ment to the contractor by an as- sessment to be levied upon ad- jacent lots in proportion to their respective values, and before the completion of the work a legisla- tive enactment provided for as- sessments in payment of such con- tracts according to street frontage, the provisions of the contract govern the assessment, they being in accordance with existing law when made. Houston v. McKenna, 22 Cal. 550. Macadamizing does not include curbing. A contract for street improve- ment is valid only for such im- provements as are named in the resolution. If the resolution pro- vide only for macadamizing, it should not also include curbing, made by statute a different kind of improvement. Beaudry v. Val- dez, 32 Cal. 269. Nor sideicalks. Where by statute macadamizing a street and constructing side- walks are different kinds of work, under a contract for macadamiz- ing a street only the roadway is to be improved. Himmelmann v. Satterlee, 50 Cal. 68; Dyer v. Chase, 52 Cal. 440. Private agreement by contractor. Where it appears that the suc- essful contractor for street work has previously made a private contract with owners of land to be assessed that he would do the work at a specified rate in lieu of that provided by contract, it was held to be a fraud on the other owners, and rendered the assessment a nullity. Brady v. Bartlett, 56 Cal. 350. Indiana. Authority of mayor to contraot. If a city council authorized the mayor to enter into a contract with a bidder for a street im- provement, such contract is bind- ing only in so far as it is within the power conferred by the coun- cil, and the ordinance directing such improvement constitutes a part of such contract. State v. Michigan City, 138 Tnd. 455, 37 N. E. 1041. Iowa. Effect of repealing act on ordi- nance. Where an ordinance for street work was passed Apr. 15, and nothing further done until June, the passing of a legislative act Apr. 17 repealing the act under which the work was ordered takes away the authority to order the work after the date of the act. Wardens, etc., v. Burlington, 39 Iowa, 224. Kentucky. Must be properly executed. Where a contract for street work is not executed according to the statute, it is null and void, and the city is not liable for value of the work, by reason of any 428 JTTEISDICTION ■ •THE OEDISTAN-CE. § 462 implied promise to pay, upon the idea that the city derived a bene- fit from it. Murphy v. Louisville, 9 Bush. 189; Crayeraft v. Selvage, 10 Bush. 696. Reference to council committee. Where a charter requires that all contracts for street improve- ments shall be referred to a com- mittee of the council, non-com- pliance therewith prevents the city from compelling a lot owner to pay the cost of the improve- ment. Worthington v. Covington, 82 Ky. 265. Michigan. Paving contract — Distance not An advertisement asked for bids for paving a street for a speci- fied distance, bids were received thereunder, and a contract award- ed for paving a portion of the distance named, "or farther if or- dered " ; subsequently the contract- ors were directed to complete the work for the original specified dis- tance. The action of the council was not the letting of a new con- tract calling for new bids, and the objection to the right of the council to advertise for bids for more work than they intended to have immediately done, is pecul- iarly susceptible to fraud and abuse, is untenable. Brevoort v. Detroit, 24 Mich. 322. Missouri. Liability of abutting owner. Where a street improvement contract is void for lack of char- ter authority in the city to make it, the owners of abutting property cannot be held liable for any part of the work done against their will and protest. Verdin v. St. Louis, 131 Mo. 26, 33 S. W. 480, 36 S. W. 52. THew York. Omitting lots from assessment — Fraud. Under an ordinance for curbing, guttering and flagging a certain street, bids were called for, and the one which was accepted pro- posed to do the large amount of flagging for nothing, while the price bid for curbing and gutter- ing was largely in excess of the price of other bidders, and intend- ed to cover compensation for the flagging. In making the assess- ment, the board omitted all lots in front of which only flagging was done, and the assessment was held void. In re N. Y. Prot. Ep. School, 75 N. Y. 324. For facts constituting fraud and collusion, see in re Anderson, 109 N. Y. 554, 17 N. E. 209. Oregon. Bond — Ultra vires contract. A bond to a city given for the performance of a contract, is void and incapable of enforcement when the contract is ultra vires, and would cause an illegal application of the funds of the city. Portland V. Bituminous P. Co., 33 Or. 307, 44 L. E. A. 527, 72 Am. St. Rep. 713, 52 Pac. 28. Wisconsin. Contract let mthout notice — Ap- peal unnecessary. Where a street commissioner im- properly let a contract without giving proper notice, the contract itself and the assessment upon a lot for work done under it, are void; and it is not necessary for the lot owner to appeal from the action of the commissioner in such reletting. Mitchell v. Milwaukee, 18 Wis. 93. 429 § 462 THE LAW OF SPECIAL ASSESSMENTS. where/® and reference is made here to a few cases where the question of liability under the provisions of the contract has been decided. It has been held that a contractor acquires no right of action against the city to recover the contract price after the assessment therefor has been finally adjudged invalid, unless the contract under which the work was done is valid and binding on such city.*" But the weight of authority is to the contrary, and the courts are gradually assuming the position that it is the duty of a city to make a valid assessment, and if it fails to do so, to hold it liable as upon an implied agreement to give to the contractor a valid certificate. But as to whether the remedy of the con- tractor is to compel the authorities to make a reassessment, where it is permitted by statute to be made, or to commence direct proceedings for recovery, there is lack of harmony, with apparently the better reason for assumption of the first method. There is, however, both strong authority and strong reason to sustain the proposition that when a city contracts for work which it has authority to do, but is without authority to make it a charge on the abutting property, it is liable to the contractor for the price of his work, it being such work as the city has power to contract and pay for from the gen- eral fund.*^ 38 See Personal Liability, Ch. Ing party injured by this non- XII. compliance to recover damages is *o Daly V. San Francisco, 72 Cal. unquestioned. Murphy v. Louis- 154, 13 Pac. 321. ville, 9 Bush. 189; Louisville v. « When one has made a valid Nevin, 10 Bush. 549, 19 Am. Kep. and binding contract with a cor- 78; Brecroft v. Council Bluffs, 63 poration through its agents, and Iowa, 646, 19 N. W. 807; Seofleld has suffered loss by the neglect v. Council Bluffs, 68 Iowa, 695, 28 of the corporation to perform some N. W. 20; Polk Co. Savings Bank act or discharge some duty with v. State, 69 Iowa, 24, 28 N. W. reference to the contract of which 416. the contracting party is not re- Pay from proceeds of special as- quired to take notice, the corpora- sessment. tion is liable, or where such a eon- Where a contractor agrees to re- tract has been violated by the cor- ceive pay for street work from the poration, the right of the contract- proceeds of a special assessment, 430 JUBISDICTION THE OEDINAH'CE. § 463 Abandonment of proceedings. 463. In the absence of statutory prohibition, a city may repeal an ordinance providing for public improvements at any time before the parties assessed with the benefits shall have paid the amount so assessed, and to make void by such repeal the judgment for compensation and benefits ; and when the city has exercised that authority it is not estopped in its suit in condemnation under an ordinance subsequently passed for the same improvement, from having a new assess- ment to ascertain the value of the property taken thereunder, by the fact that under the repealed ordinance an award has been made to the same property-owner therefor ; nor can the property owner demand, on the ground that such ordinance was not repealed in good faith, that the former award be taken as the true value of his property. If the city can claim no benefit under the first award, neither can the prop- erty-owner.*^ The city incurs no liability by abandoning a contemplated improvement, to persons who invested on the strength of the completion of the work.** The proceeding will be regarded as abandoned unless within a reasonable time the damages are paid, and possession -taken of the condenmed property.** While the completion of an entire and it proves illegal, and the con- street improvement, notice to land tractor has completed the improve- owners of notice of motion therefor ment, it is the duty of the city is unnecessary. Pearson v. Chi- to make another assessment, or cage, 162 111. 383, 44 N. E. 739. any number of them, to raise mon- *3 Peake v. New Orleans, 139 U. ey enough to pay the contract S. 342, 35 L. ed. 131, 11 Sup. Ct. price. Morgan Park v. Gahan, Rep. 541. 136 111. 515, 26 N. E. 1089. ** Chicago v. Barbian, 80 111. *2 Chicago V. Barbian, 80 HI. 482. 482; Chicago & N. W. R. Co. v. To relieve a city from the pay- Chicago, 148 111. 141, 35 N. E. ment of a compensation and dam- 881 ; Simpson v. Kansas City, 111 ages in the proceeding to condemn Mo. 237, 20 S. W. 38; Kansas land for a street, on the ground City V. Mulkey, 176 Mo. 229, 75 of abandonment, there must be an S. W. 973; Clinton v. Portland, abandonment in good faith in the 26 Or. 410, 38 Pac. 407. improvement contemplated, or a As the city has the absolute change of location or route, or an right to dismiss a petition for a abandonment of the design of tak- 431 § 464 THE LAW OF SPECIAL ASSESSMENTS. street improvement as ordered may be beneficial to all the property assessed therefor, the completion of less than all may not only be of no benefit to any, but an injury to some or all of such property. The improvement is an entirety, and abandonment of part is fatal to the whole proceeding, for a special assessment cannot be levied to pay for part of an improvement, nor to pay for the whole after a part has been abandoned.*® Where proceedings to condemn property for opening a street are set aside and abandoned as to a part of it, the original assessment should be set aside.*® A city which has obtained the confirmation of a special assessment is without power to vacate it of its own motion, pass a new ordinance for the same improvement and cause a new assess- ment to be confirmed against the same property, but the first judgment remains in full force and effect.*'^ In stat- utory proceedings to vacate an assessment for frauds therein, only lands described in the proceedings are affected, and the vacation of the assessment as to those lands does not operate to render the whole assessment invalid.*® Presumptions. 464. In the absence of evidence to the contrary, it is al- ways presumed that public oiBcers discharge their duties ing the particular property in- the appellate court reversing the volved for public use. C. R. I. & judgment aifirining a previous as- P. E. Co. V. Chicago, 143 111. 641, sessment within two years after 32 N. E. 178. date of decision. P. & R. C. & I. <5St. John V. East St. Louis, Co. v. Chicago, 158 111. 9, 41 N. 136 111. 207, 27 N. E. 543; Cin- E. 1102; Pearson v. Chicago, 162 cinnati v. C. & S. G. Ave. Co., 26 111. 383, 44 N. E. 739. Ohio St. 345; Welty on Assess- When owner may recover tack. ments, Sec. 298. Where an assessment for open- 46 Pardridge v. Hyde Park, 131 ing of a street was confirmed on 111. 537, 23 N. E. 345. Sept. 2, the land sold on the Jan- 47 Berry v. People, 200 HI. 231. uary following for non-payment of *8 In re Delancey, 52 N. Y. 80. the special tax, and in the f ollow- Wliat not an aiandonment. ing June, the land owner paid the Proceedings for the improvement amount for which his land was of a street are not abandoned by charged to the city treasurer, and omission to file the mandate of the city in the meantime had 432 JUEISDICTIOW THE OBDINANCE. § 464 faithfully, and in the manner prescribed by law.*® When public officers act within the scope of their powers, and the record contains no evidence of fraud, corrupt motive or in- tentional favoritism, the presumption is that, in making the taxing district' and the assessment they acted in good faith, and have correctly and faithfully exercised the discretion re- posed in them, which presumption must be rebutted by show- ing affirmatively that something was omitted or improperly done, by one charging them with irregularity.®* It has been held that in proceedings to vacate an assessment for a local improvement the burden of proof is upon the petitioner, and that every presumption is in favor of the validity of the as- sessment.®^ But this seems like a very harsh rule, and con- trary to that usually appertaining to proceedings in invitum. It is a recognized rule of construction, especially applicable to special assessment cases, that those things which the law regards as the substance of the proceeding cannot by the courts be treated as immaterial, that the r^^cord must show affirmatively a compliance with all the conditions essential to a valid exercise of the taxing power, and that their omission will not be supplied by presumptions.®^ It is probable, how- ever, the actual difference between the courts is less in the abandoned the opening, the owner Mich. 393, 57 N. W. 250; McAuley was entitled to recover from the v. Chicago, 22 111. 564. city the full amount paid by him Under a charter requiring the as upon a failure of considera- city council to review a special as- tion. Valentine v. St. Paul, 34 sessment roll, consider the objec- Minn. 446, 26 N. W. 457. tions, and when satisfied with the *» People V. Walsh, 96 111. 232, same, confirm it by resolution, it 36 Am. Rep. 135; Shimmons v. will be presumed, under a resolu- Saginaw, 104 Mich. 511, 62 N. W. tion accepting and adopting such 725; St. Joseph v. Farrell, 106 a roll that the council did its Mo. 437, 17 S. W. 497; Barber full duty. Auditor General v. Asphalt Pav. Co. v. Tillman, 137 Hoffman, 132 Mich. 198, 93 N. W. Mo. 543, 38 S. W. 458; Beck v. 259. Holland, 29 Mont. 234, 74 Pae. si in re Brady, 85 N. Y. 268; 410. In re Voorhis, 90 N. Y. 668. BO Powers v. Grand Rapids, 98 b2 Smith v. Omaha, 49 Neb. 883, 69 N. W. 402. 28 433 § 465 THE LAW OF SPECIAl ASSESSMENTS. rule itself, than in the manner of stating it. Where the pro- ceedings in a special assessment matter show upon their face merely that the aggregate amount of the assessment is placed upon benefited property, it will not be conclusively presumed that the assessment is limited to the special benefits con- ferred, or that it has been properly made.®* The failure of the record to show all the steps required by statute to be taken will not be aided by presumptions.'* Apportionment — Fixing the taxing district. 465. The general principles which govern in a legal ap- portionment have been discussed at length in a former chap- 53 Chamberlain v. Cleveland, 34 that they were patented, where the Ohio St. 551. 54 Morse v. Omaha, 67 Neb. 426, 93 N. W. 734. When a city applies to take lands for widening a street, the city must show that all the pre- scribed requisites to the exercise of such power have been met, and there is no presumption that they have been observed and conformed to. In re City of Buflfalo, 78 N. Y. 362. Non-0 from signing petition. The mere fact that a property owner signs a, petition for street paving affords no grounds for the presumption that the petitioner as- sents to irregular or void proceed- ings of the city council in the per- formance of such duties as may de- volve upon it after the work is completed. Wakeley v. Omaha, 58 Neb. 245, 78 N. W. 511. Use of patented material. Even though the use of patented materials are unauthorized in a contract for street work, the cir- cumstance that materials were used which were marked " patent- ed," does not raise a presumption superintendent of streets Certifies that the work was properly done. Dunne v. Altschul, 57 Cal. 472. As to benefits. An order laying an assessment for alteration of a street on the estates named in a schedule an- nexed, and entitled, " schedule of assessments upon the estates that were benefited by the alteration," imports that the schedule includes all the abutting estates which were benefited. Jones v. Boston, 104 Mass. 461. That public office is kept open at proper time. It is a legal presumption that when a city council, acting as a board of equalization, meets at the office of the city clerk at a time fixed by notice and statute, and takes a recess subject to the call of the chairman after part 6f the business is completed, but not all of it, the city clerk remains present at his office during the remainder of the time fixed by notice, to receive complaints and give in- formation. John V. Connell, 98 N. W. (Neb.), 457. 434 JUEISDICTION THE OKDINANCE. § 466 ter,^' but some more specific details remain to be included. Within the limitation as to benefits conferred, the power of the legislature to fix the limits of the taxing district, and the proportions in which the cost shall be divided between real property in such district, and the municipality at large, is almost unlimited. It may create a special taxing dis- trict without regard to the boundaries of counties, townships, or municipalities,®^ but the power of establishing such districts within cities and villages is usually vested in the city council or village board by charter or statute, subject to the rules therein provided ; and where such rule is so made, the council is without power to change it, or to enforce an assessment when the contract makes an assessment district which is not in conformity with the ordinance authorizing the improvement.®^ When the limits are within the discre- tion of the council, they are still subject to the requirement that the improvement shall be so far single that some benefit will presumptively flow to the property subjected to taxa- tion.®« 466. The extent of the assessment district must depend upon the facts of each case; but where, in any case, it is made clearly to appear that through fraud or mistake prop- erty is improperly included or excluded, the court may in- terfere to vacate or set aside an assessment, although they will not interfere where the local board exercises its discre- tion except to correct a clear abuse thereof,®* and although That preliminary report teas prop- se Compiissioners v. Harrell, 147 Ind. 500, 46 N. E. 124. The proceedings of the council 57 Cooper v. Nevin, 90 Ky. 85, showing that the preliminary re- 13 S. W. 841; Haisch v. Seattle, port and recommendation had been 10 Wash. 435, 38 Pac. 1131. made to it, and that it thereupon »» Davis v. Litchfield, 145 j.il. proceeded to make the improve- 313, 21 L. R. A. 563, 33 N. E. ment so recomanended, are pre- 888. sumptive evidence that such report 09 State v. District Court, 33 and recommendation were proper- Minn. 295, 23 N. W. 222; Davis ly made. Reynolds v. Schweine- v. Litchfield, supra; State v. Dis- fuss, 27 Ohio St. 311. trict Court (Minn.), 103 N. W. 65 Ch. in. 744. 435 § 467 THE LAW OF SPECIAL ASSESSMENTS. the court may declare a taxing district to be unreasonable, it is utterly without power to establish a new one.®" It has been held that fixing the limits of a taxing district in advance of a hearing upon the question of benefits and dam- ages, renders the proceedings invalid ; but this is contrary to all the principles which logically underlie the subject of apportionment, for it is manifest that the assessment cannot be actually made until the limits of the district are pre- scribed, and the case as authority should be limited to a strict construction of the word " hearing." ®^ Another case holds that whether the improvement will benefit the particular dis- trict, is left to the judgment of the corporate authorities, and that their determination is final and conclusive, where there is no statutory provision for appeal from that decision, and that there is no power in the courts to review such de- termination at the instance of the property owners who are specially taxed.^^ But as an authority this case is entirely discredited, and it is beyond doubt that a court of equity would interfere upon a proper showing. 467. Although the power to create taxing districts orig- inates in the legislature, that body cannot of itself make the levy of the tax. Accordingly, where an act in relation to a swamp land reclamation district requires the trustees to estimate the cost of the work " based upon the books and vouch- ers thereof," and the amount so reported was to be assessed upon the lands, such act is unconstitutional as being a levy by the legislature in a local district.®^ Fixing a taxing dis- trict by certain city blocks, giving their numbers, sufficiently describes the district.** A district of some kind, fixed by some specific rule or authority, is essential to a valid tax,*^ but it is not a valid objection that the assessors acted on an 60 Kansas City v. Morton, 117 ss People v. Houston, 54 Cal. Mo. 446, 23 S. W. 127. 536. 61 State V. Otis, 53 Minn. 318, e* St. Louis v. Koch, 169 Mo. 55 N. W. 143. 587, 70 S. W. 143. 62 Mayor, etc., v. Johns Hop- «b An act for improving a street, kins Hospital, 56 Md. 1. which neither fixes the assessment 436 jmaSDICTION THE ORDINANCE. § 4:68 erroneous principle, where it is a matter of judgment on their part,®® while a certificate that they assessed the cost of the improvement equitably upon the property fronting on the street, is fatally defective, as not showing that any legal rule of apportionment was applied in making it.®'' What- ever the rule may be, it must be applied in good faith, and the rule and method of its application must appear on the face of the proceedings.®^ It is immaterial, as affecting the constitutionality of an act, that the apportionment thereun- der has been fair, as the act is to be tested by what may be done under it, and not by what has been done.®* The pro- vision of a city charter which declares that the board of as- sessors shall assess the amount ordered to be assessed for local improvements upon the parcels of land benefited by the im- provement, in proportion to such benefit, has the effect of making such board the proper body to fix the assessment dis- trict.™ 468. It will be presumed that the city authorities, in making special assessments, did so with reference alone to the special benefits accruing to the property assessed; and when they have, in good faith, endeavored to apportion to each tract or parcel of land in the district its proper share of the expense of construction, as measured by the special benefits accruing, their action will not be annulled unless it is aflSrmatively shown that the result of the apportionment was not according to benefits. In making such an appor- district, or vests in the assessing sa Where the statute so pro- board such a power, is impracti- vides the court to whom the report cable, as every freeholder in the of assessment is made can refer city must have an interest to de- the same back to the assessors, so cide his own property is not ben- they may certify as to the basis efited, and such act makes three upon which the assessment was of such freeholders the assessing made. State v. Hotaling, 44 N. board. Montgomery jivenue case, J. L. 347. 54 Cal. 579. »» Stuart v. Palmer, 74 N. Y. 66 Re Cruger, 84 N. Y. 619. 183, 30 Am. Rep. 289. 6T State V. Paterson, 37 N. J. L. to People v. Buffalo, 147 N. Y. 412. 675, 42 N. E. 344. 437 § 468 THE LAW OF SPECIAL ASSESSMENTS. tionment absolute equality is not to be expected.''^ But where the commissioners were directed to assess all the real estate in a certain designated district " in proportion, as nearly as may be, to the advantage which each shall be deemed to acquire by the making of said improvement," and they divided the territory designated intp two districts, one of which they decided would receive special benefits from the improvement, and the other only general benefits, and adopting in the latter a totally different rule from the one used in the former, the assessment was void, the effect being to contract the area of special benefit fixed by the coun- cil.''^ Where an apportionment is reported to the council by 71 Denver v. Kennedy ( Colo. ) , 80 Pae. 122; Medland v. Linton, 60 Neb. 249, 82 N. W. 866. Benefit to property outside of dis- trict. It is not an abuse of discretion for the council to fix an assess- ment district as 300 feet in width on each side of a street, and the whole length through which it is to be opened, although property outside such district may be spe- cially benefited, nor will the courts review such action of the council unless it appears they acted fraud- ulently or in bad faith. Power v. Detroit (Mich.), 102 N. W. 288; Brown v. Grand Rapids, 83 Mich. 101, 47 N. W. 117; Davies v. Saginaw, 87 Mich. 439, 449, 49 N. W. 667, 669. Determination of benefits. The resolution of the common council fixing the assessment dis- trict and declaring the amount to be assessed thereon for a spe- cial improvement is a legal de- termination that the benefit con- ferred upon that district is equal to said amount, and the spread- ing of such sum upon the assess- ment role, and the confirmation of the role by the council, determines that the proportion of the ag- gregate benefit received by each parcel is equal to the burden im- posed and in the absence of fraud, oppression or manifest mistake, such determinations are conclu- sive. Davies V. Saginaw, 87 Mich. 439, 49 N. W. 667. T2Ellwood V. Rochester, 122 N. Y. 229, 25 N. E. 238. Where commissioners of assess- ment apportion the money to be raised for widening a street, into two parts, one on the property on the street widened, and the other on the property fronting on cross streets determined to be benefited, and no complaint is made of the correctness of this apportionment, the owners of lots on the widened street cannot afterwards be heard to complain of the manner in which the part apportioned to the cross streets is afterwards appor- tioned among the property owners therein, nor vice versa. Piper's Appeal, 32 Cal. 530. 438 jmaSDICTIOW the OEDINAlirCE. § 469 the city engineer and adopted, it then becomes the act of the council to the same extent as if the council had itself made the apportionment.''^ And bearing in mind that the levy- ing of an assessment is an exercise of the taxing power, the legislature is at liberty in its discretion, to impose the whole burden of the cost of the proposed improvement upon the neighboring proprietors to be benefited thereby; and so it might, in its discretion, limit or extend the district to be taxed, and thus increase or diminish the sum to be paid by any particular proprietor. The imposition of not exceeding one tenth of the tax upon the city at large is to that extent a relief to the adjoining property-owners, and not a hardship furnishing grounds of complaint.^* That an assessment was ordered only on property fronting, abutting and adjacent to a certain street for improvements thereon, does not, as a matter of law, unduly limit the district benefited, in the absence of proof that there was any outside of that limit which would be benefited,''® nor does the recital in a resolution of in- tention of the words describing the proposed work as " of more than local and ordinary public benefit," make it manda- tory upon the council to establish a district of larger area than the lots fronting on the street.''* 469. An objection that the area of assessment for bene- fits is too small is unavailing, as is one that a paving im- provement terminates in the middle of a block, and makes an assessment district which divides a block, these being matters confided to the discretion of the local authorities.'''' In case the apportionment for a drainage assessment be made by the 'sNevin v. Roach, 86 Ky. 492, 74Uhrig v. St. Louis, 44 Mo. 5 S. W. 546. 458; State v. St. Louis, 52 Mo. A statute requiring the council 574. to designate the "lots constituting 'o Hennessy v. Douglas Co., 99 the assessment district is com- Wis. 129, 74 N. W. 983. plied with by their instructing the '6 O'Dea v. Mitchell, 144 Cal. city engineer to prepare such 374, 77 Pac. 1020. map, and then adopting it. Audi- 77 Brevoort v. Detroit, 24 Mich, tor General v. Calkins, 136 Mich. 322; In re Gruger, 84 N. Y. 619. 1, 98 N. W. 742. 439 § 469 THE LAW OF SPECIAL ASSESSMENTS. acre, instead of according to benefits as required by the statute, the assessment is void.''* A resolution referring to the electors the question as to issuing bonds for improving a certain street, stating that the owners of property abutting a certain part of the street were to pay a specified portion of the cost, is not invalidated on the ground that it was left to the people to fix the district. The question submitted to the people was the issue of bonds, and not the size of the dis- trict''* And where an appeal was taken eight years after the determination of commissioners, by one party on the ques- tion of who was benefited or how much, the question was opened as to the successful appellant only.*" The excess of cost of the improvement over the benefit assessed must be h 78 People V. County Court, 65 N. Y. 604. Where the charter authorizes the levying of an assessment for street improvements " by foot frontage, according to benefits, or by land values, as the council shall determine," an assessment based on the value of each parcel " ex- clusive of improvements," is void. Walker v. Ann Arbor, 118 Mich. 251, 76 N. W. 394. On the theory that all damages resulting from the opening of a street must be paid by assessment for benefits upon the property fronting such street, a mathemati- cal apportionment of the increased damages obtained on appeal, among the properties benefited, pro rata, according as originally assessed, is illegal. In re Open- ing of Park Avenue, 83 Pa. St. 167. 79 Boehme v. Monroe, 106 Mich. 401, 64 N. W. 204. 80 County Commissioners of Hamphire, 143 Mass. 424, 9 N. E. 756. Apportioning constituent parts of improvement. Power to " grade, pave, macad- amize or othervpise improve any portion of the width of any street " contemplates each as a separate improvement, and the ap- portionment made as indicated. Savannah v. Weed, 96 Ga. 670, 23 S. C. 900. Length of street. Where the statute provides that when a street more than one mile long is opened, only half the cost shall be assessed on abutting owners, and if the street, when laid out, is a perfect street by itself, less than a mile in length, the owners of property benefited must bear the whole burden. May- or V. Tiffany, 68 Hun 158, 22 N. Y. Supp. 604. Apportionment hetioeen remainder- man and tenant hy courtesy. The cost of the reconstruction of a worn out sidewalk is not to be apportioned between the tenant by the courtesy and the remain- derman, but the entire cost is to 440 JUKISDICTION THE OEDINANCE. § 470 paid out of the general or ward fund, ^^ and in cases of grad- ing or paving a street, which is to be paid for by an assess- ment against abutting property, it is essential that the lots on both sides of the street be assessed, as an assessment against one side only will be void.^^. Benefits. 470. For the expenses of local improvements, it is com- petent for the legislature to provide, either by general taxa- tion upon the property of all the inhabitants of the munici- pality, or by assessment upon adjacent property which is specially benefited by reason of the improvement.*^ This liability of lands to assessments for local improvements springs from the construction only of an authorized public work which confers a special benefit upon lands. It arises when the work is performed, and the assessment proceeding is merely the determination of the amount which, within the limit of said imparted value, shall be returned to the pub- lic.** The term " general benefits," and like expressions, be borne by the former. Hack- objectionable as the levy of a tax, worth V. Louisville, etc., Co., 106 it being merely the adoption of a Ky. 234, 50 S. W. 33. rule. Denver v. Londoner, 33 In Buffalo, board of assessors Colo. 104, 80 Pac. 117. make apportionment. Apportixmment by area — Relief. Smith V. Buffalo, 159 N. Y. The rule of apportionment of 427, 54 N. E. 62. sewer benefits according to area 81 Walters v. Iiake, 129 111. 23, is prima facie valid; but where 21 N. E. 556; Kimble v. Peoria, any general method employed, 140 111. 157, 29 N. E. 723; New- though prima facie valid, works man v. Chicago, 153 111. 469, 38 N. injustice, relief in proper circum- E. 1053; Adams v. Shelbyville, 154 stances may be granted. Spalding Ind. 467, 49 L. R. A. 797, 77 Am. v. Denver, 33 Colo. 172, 80 Pac. St. Rep. 484, 57 N. E. 114. 126; Denver v. Dumars, 33 Colo. 82 San Diego Inv. Co. v. Shaw, 94, 80 Pac. 114; Denver v. Lon- 129 Cal. 273, 61 Pac. 1082; Drake doner, 33 Colo. 104, 80 Pac. 117. V. Grout, 21 Ind. App. 534, 52 N. ss Burnett v. Sacramento, 12 E. 775. Cal. 76, 73 Am. Dec. 518; Cham- What is not a levy. bers v. Satterlee, 40 Cal. 497. The legislative discretion as to 8*In re Commissioners of Eliza- liow an apportionment on a paving beth, 49 N. J. L. 488, 10 Atl. 363. assessment is to be made is not 441 § 470 THE LAW OF SPECIAL ASSESSMENTS. means those general intangible benefits which are supposed to flow to the general public from a public improvement, while at the same time such improvement confers a " special benefit " upon property in the immediate vicinity, by the present increase in its value.®® As to the area over which such special benefits, together with the amount, the judgment of the commissioners of assessment will prevail in the absence of convincing evidence against it.** A law requiring assess- ments for these special benefits may restrict the area of as- sessment to the lands fronting on the proposed street to be im- proved, but the fact that property outside such district may receive benefits equal to those which are assessed within the district does not affect the validity of such assessment.*' The entire cost of a local improvement may be laid by special as- sessment under an ordinance so requiring, even if prior to its passage no steps were taken to ascertain the benefits, when the statute permits a review of the distribution of public and private cost by the court.** 85 Metropolitan W. S. B. R. Co. V. Stickney, 150 111. 362, 26 L. R. A. 773, 37 N. E. 1098. 86 State V. Newark, 48 N. J. L. 101, 2 Atl. 627. 87 State V. Paterson, 42 N. J. L. 615. In its opinion, the court, speaking by Beasly, C. J., say: " Assessments confined to lands fronting on the improved street are not novelties, but have always been a part of this exceptional sys- tem. . . . The practice now in question must be taken to be a recognized part of that ancient and inveterate plan which has been resorted to in taxing the land owner for the special benefit that a public improvement of this kind has imparted to his property. Viewing it in this light, it can- not, at this late day, be discard- ed." Kansas City Grading Co. v. Hol- den, 107 Mo. 305, 17 S. W. 798. In the absence of constitutional restrictions, municipal authorities have the right, when lawfully au- thorized, to direct that the ex- pense of a public improvement shall be assessed against the real estate specially benefited thereby. Denver v. Kennedy, 33 Colo. 80, 80 Pac. 122, 467; Palmr v. Way, 6 Colo. 106; Wolff V. Denver, (Colo. App.) 77 Pac. 364. Under its charter, the common council of Kansas City may define the limits within which private property shall be deemed benefited by the opening of a street, but the assessment of benefits and dam- ages must be left to a jury. Kan- sas City V. Baird, 98 Mo. 215, 11 S. W. 243, 562. 88 Graham v. Chicago, 187 111. 411, 58 N. E. 393. 442 JTJElSraCTlON THE OEJDINANCE. §§ 471, 472 Conflicting decisions. 471. The subject of benefit has been quite thoroughly dis- cussed in a previous chapter,®^ but as it is, in the opinion of the writer, the sole justification for the imposition of the burden of a special assessment, and is the only principle which is so logical as to embrace all cases, and do justice to them all, still further discussion and citation of authorities can not be out of place. It is not claimed that perfect jus- tice and exact equality can be had in all cases by its applica- tion. No system of taxation yet evolved by the brain of man has done this. But an honest and careful application of the principle of special benefits to assessment proceedings will afford more substantial justice, with less delusive exactness, than any other principle yet applied. 472. Most courts have accepted this as the foundation principle, although it is frequently evaded in practice. The 'Court of Appeals of Kentucky has held,®" that the fact that a lot within the district assessed for street grading was not benefited thereby, but was in fact injured^ did not exempt it from paying the proportion of cost assessed against it. The court admits that the right to make local assessments is based upon the benefit derived thereby, but say, " It by no means follows that each piece of property within the bounds over which the assessment.extends must in fact derive benefit from the improvement. Whether the property in the district, con- sidered as an entirety, will be benefited by the proposed im- provement, is a question to be decided primarily by the Leg- islature . . . and that decision will generally be final and conclusive upon the question of benefits to the district as a whole." The judicial scarecrow of legislative omnip- otence has apparently overawed the court, for in a some- what later case the same court say, " this rule cannot be so extended as to entirely take from the citizen his property. It would be spoliation, and not taxation. Under the guise of benefit and taxation, he cannot be thus arbitrarily deprived 89 Ch. III. 80 Pearson v. Zable, 78 Ky. 170. 443 § 472 THE LAW OF SPECIAL ASSESSMEliTTS. of his property." ®^ That is to say, grand larceny will not be permitted but petit larceny will go unnoticed. In a com- paratively early case, the Supreme Court of Wisconsin clearly stated the law to be that the benefits must be actual, and not 81 Preston v. Eudd, 84 Ky. 150, 156. This case is as complete an ex- ample as is to be found in the books as to the spoliation and con- fiscation to which private proper- ty might be subject, if the prin- ciple of benefits be ignored, and that of legislative omnipotence substituted. It seems remarkable to the author that a court of the acknowledged ability of this court should have " wobbled " on this question to the extent shown by the three following citations: The legislature has no power to impose a tax upon the land border- ing on a country road to pay the entire cost of converting such road into a turnpike. All who are di- rectly benefited by the improve- ment, or who, by reason of their proximity to the road, will practi- cally derive the benefit, must be required to share the burden "in order that there may be such equality and uniformity in the taxation as the constitution re- quires. The court say, " It is a local tax for a county purpose, a common burden imposed on a few, that violates every principle of just and uniform taxation, and borders on spoliation." Graham V. Conger, 85 Ky. 582, 4 S. W. 327. In order to make adjacent prop- erty liable for the cost of a street improvement it is not necessary that an immediate pecuniary bene- fit to the owner be shown. Nevin 444 V. Roach, 86 Ky. 492, 5 S. W. 546. Where a contingency arises re- quiring an expenditure for the im- provement of the principal thor- oughfare of a city, it was never contemplated that the owner of property bordering on the improve- ment should incur the expense if it would result in the virtual con- fiscation of his property or the imposition of an unjust and un- equal burden. Frantz v. Jacob, 88 Ky. 525, 11 S. W. 654. In assessing property to pay for street improvements, the munici- pality having decided that the as- sessed area or tax district as an entirety will be benefited, by the contemplated Improvement, a lot owner may .be compelled to pay his proportion of the cost of the improvement unless the absence of benefit and of public need of the improvement make it manifest that the burden amounts to spolia- tion and not legitimate taxation, In which event the burden cannot be imposed. Preston v. Rudd, 84 Ky. 150. By the improvement in question, three lots belonging to plaintiff had egress from and ingress to them totally cut off, converted in- to a pond by the raising of the street, and rendered almost worth- less. Id. " The power to impose this char- acter of taxation must to some extent, depend upon the fact that the persons taxed are correspond- JUEISDICTIOII • THE ORDINAITCE. § 472 constructive or arbitrary; and although the case has since lost some of its weight as authority on other questions in- volved in the decision, its statement as to the principle of ben- efits has never been modified.®" The case of Norwood v. Baker,^^ decided by the Supreme Court of the United States in 1897, was long considered) the leading authority on this subject of benefits, and probably no decision emanating from the federal Supreme Ck)urt for many years was con- sidered at first to be so sweeping, and has proven since to be so imperfectly understood and applied. It is a matter of sincere regret that the highest court in the land has in effect extracted from that decision its virile force. But the great principle laid down in that case that an assessment in sub- stantial excess of the benefits received was a taking without due process of law, is still the law of the land.®* ingly benefited by the expenditure structive or arbitrary; and that an thereof. The courts would hesi- tate to interfere in cases in which it may be a question of doubt as to whether the persons taxed re- ceive commensurate benefits; but where the taxation is so excessive as to render it doubtful whether the property to be benefited will suffice to pay the assessments against it they can no longer be deemed taxation. To enforce their collection would be the exercise of absolute and arbitrary power over the property of the citizen — a power which, under our form of government, does not exist, even in the largest majorify. Whenev- er such a case may arise the courts will be prompt to afford protec- tion." Broadway, etc., Church v. McAtee, 8 Bush. 508, 8 Am. Eep. 480. 92 In respect to benefits to be assessed, it has finally been de- cided and followed that such bene- fits must be actual and not con- assessment which is in excess of such benefits falls within the rule of the constitution as taxation, or, in other words, actual benefits are assessments proper for local im- provements, the power over which existed in the legislature, antece- dent to the adoption of the con- stitution, as an inherent municipal power, and to that extent is not affected by the constitution; but all in excess of such actual bene- fits is a general or public tax, to be borne by the people of the district according to the constitu- tional rule of uniformity. Don- nelly v. Decker, 58 Wis. p. 465, 46 Am. Rep. 637, op. and 17 N. W. 389. 93 Norwood V. Baker, 172 U. S. 269, 43 L. ed. 443, 19 Sup. Ct. Rep. 187. s>* " The stake driven by the de- cision in Norwood v. Baker is timely. Judicial expression on the subject was indefinite. There was 445 §§ 473, 474 THE LAW OF SPECIAL ASSESSMENTS. 473. The state which judicially went to the greatest ex- treme on the question of benefits was Iowa, whose supreme court denied the principle in toto.^^ This stand, by logical sequence, brought that court in conflict with the federal su- preme court, the former court having held that»a non-resident of the state was personally liable for the amount remaining due upon a special assessment, after the sale of the prop- erty.®" The legislature of the state, by statute, has provided that the principle of benefits shall be the guide in future special assessment proceedings. 474. To acknowledge the principle of benefits, but deny its application is in effect what some courts have apparently sanctioned when they hold that the amount of benefits is determined by the report of the commissioners, and is not open to inquiry, but is final. It will, however, usually be found upon a careful reading of the cases, that the general statement is broader than the court intended, and that the amount of the assessment may be inquired into for fraud or a tendency to lose sight of the erty. C. M. & St. P. E. Co. v. equitable basis which justifies the Phillips, 111 Iowa, 377, 82 N. W. assessment upon private property 787. of the cost of public improvements. Special benefits are not essential The arbitrary act of the legislative to maintain a paving assessment, body was often accepted as final, and the whole question of bene- without regard to its justice. It fits, general or special, is a mat- is to be hoped that the highest ter for legislative discretion. Hay- court in the land has spoken final- den v. Atlanta, 70 Ga. 817. ly, and will not recede from its »6 Dewey v. Des Moines, 173 U. position." State v. Robert P. S. 193, 43 L. ed. 665, 19 Sup. Ct. Lewis Co., 82 Minn. 390, 401, 53 Rep. 379. L. R. A. 421, 85 N. W. 207, 86 " The state may provide for the N. W. 611. sale of the property upon which 95 Where a city is authorized to the assessment is laid, but it can- make an improvement in a certain not under any guise or pretense district, and assess the cost on all proceed farther and impose a per- the real estate within such dis- sonal liability upon a non-resident trict, the fact that such improve- to pay the assessment or any part ment (building a sewer) will not of it. To enforce an assessment benefit certain real estate therein of such a nature against a non- is no reason why the tax should resident, so far as his personal not be enforced as to such prop- liability is concerned, would 446 JUEISDICTIOir ■ ■ THE OKDINANCE. § 475 palpable mistake of fact, or abuse of discretion, if the parties be not estopped by previous conduct, to assert their rights.®^ Rule for assessment of benefits. 475. The assessment of a proportionate share of the cost of a local improvement by the officers of a municipal corpora- tion, upon parties specially benefited thereby, cannot be made in excess of the value of the benefit conferred ; but where the amouut to the taking of property ■without due process of law, and would be a violation of the Fed- eral Constitution." lUinois. 97 The benefit to a lot for which a special assessment is charged thereon cannot be contested upon an application for judgment against the land for a delinquent instalment of such assessment. People V. Ryan, 156 111. 620, 41 N. E. 180. Missouri. The amount of the benefits is determined by the report of the commissioners, and is not open to fresh inquiry on a suit to recover the special tax bill. The only de- fense there is the validity of the assessment and levy. St. Louis V. Ranken, 96 Mo. 497, 9 S. W. 910; St. Louis v. Excelsior Br. Co., 96 Mo. 677, 10 S. W. 477. New Jersey. " It was also urged that the lota were not assessed according to the benefits received. The principle which controlled the judgment of the commissioners is not stated by them. If they adopted an arbi- trary scale for the whole line of the avenue. which came under the improvement, their assessment is manifestly erroneous for that cause. It can hardly be assumed that in the length of more than a mile of street no lots were bene- fited more than others, and that the quantity of earth and rock re- moved from the front of each lot, or of earth placed before it, can be the proper criterion of the esti- mate of benefit which such lot would receive from so expensive an improvement." State v. Hudson, 29 N. J. L. 104. The transfer by a turnpike com- pany of its franchise to a public road board, confers no special ben- efit upon adjacent land owners for which an assessment can be made. Speer v. Essex, etc., Bd., 47 N. J. L. 101. The duty of commissioners in making an assessment for benefits is to take into consideration all property benefited within the area of assessment; but their deter- mination will not be disturbed for an omission of that duty if it clearly appears that, had the duty been fully performed, the assess- ment upon the persons objected would have been neither increased nor diminished. Davis v. Newark, 54 N. J. L. 144, 23 Atl. 276. Ohio. The principle that the finding of the city council as to benefits conferred by a certain improve- ment is conclusive on all parties 447 § 475 THE LAW OF SPECIAL ASSESSMENTS. improvement directly benefits the property of such parties, the question of the extent of the value thereof must be de- termined by the proper officers of the corporation. The courts will not interfere in such a case, unless the property assessed is so situated as to render it physically impossible for the im- provement to benefit it ; or where the mode of levying the as- sessment excludes the consideration of the question of value of the improvements.*® The true inquiry is, what will the in- grading of a street, either by the front foot rule, or according to benefits, for the purpose, say the court, of enabling " a city to grade its streets stretching out in- to the rural parts of the city and, where the situation of the prop- erties along the street was such as to make it just to do so, to im- pose the cost of the improvement on the property benefited." Scrau- ton V. Bush, 160 Pa. St. 499, 28 Atl. 926. concerned, was laid down by this court in Chamberlain v. Cleveland, 34 Ohio St. 551. Oregon. Where the measure of assess- ments for street improvements in a city is limited to the amount of benefits derived, and the common council is invested with a discre- tion in determining the amount, the courts will not review the de- termination of the council, so long as its discretion is honestly ex- ercised and not abused. O. & C. R. Co. V. Portland, 25 Or. 229, 22 L. R. A. 713, 35 Pac. 452. Pennsylvania. As a general rule, the property owner cannot defend on the ground that his property is not benefited by an improvement, but this has no application to the roadbed of a railroad company. This is the one species of property which the law presumes can de- rive no possible benefit from street improvements. Allegheny v. West Penn. R. Co., 138 Pa. St. 375, 21 Atl. 763. This state has a peculiar system. It having been early decided that the front foot system, approved by the supreme court of the state, did not apply to rural districts, legis- lation was had authorizing cities to make assessments for the first 448 In assessing land according to benefits, it is not competent to tax land not fronting on the im- provement, or to take into consid- eration the benefit such portion might derive by improving the street in front of other portions. Byan V. Sumner, 17 Wash. 228, 49 Pac. 487, Wisconsin. The determination of the body charged with the duty of making an assessment of benefits and dam- ages in a street improvement, that a particular lot is benefited there- by is, when confirmed by the com- mon council, final unless im- peached for fraud. Wright v. For- restal, 65 Wis. 341, 27 N. W. 52. 98 Paulson V. Portland, 16 Or. 450, I L. R. A. 673, 19 Pac. 450. JT3BISDICTION THE OEMNAlirCE. § 475 fluence of the proposed improvement be upon the market value of the property claimed to be benefited thereby. The jury should consider what the property is then fairly vporth, in the market, and what will be the value when the improve- ment is made.®® If a piece of property is enhanced in value, the benefits to such property cannot be said to be common to any other piece of property specially enhanced in value, and it is thus specially benefited within itself, and irrespective of the benefit that may be conferred by the improvement upon other properties. A consideration of facts and circumstances tending to show those general benefits supposed to flow to the community at large, or to the public generally, from the construction of the public work, and the effect of which, in determining the injury or benefit to the particular tract of land, can not be otherwise than conjectural or speculative, should be excluded.^ Under charter provisions authorizing the commissioners to assess benefits for a street improvement on the real estate and against the persons benefited thereby, the assessment is not limited to abutting property, but any real estate within the city limits that is benefited is by that fact alone made liable to assessment^ The benefits resulting from street improvements accrue to the owner through his estate in land, whether fee or leasehold, and not to the buildings thereon. The enhancement in value accrues only to the land.^ And because the increased market value of the 99 Kankakee Stone & Lime Co. so far as they tend to show the V. Kankakee, 128 III. 173, 20 N. E. actual value of the land with and 670. without the taking for public use. The situation of the property, W. S. E. R. Co. v. Stickney, 150 the use to which it is devoted and 111. 362, 26 L. E. A. 773, 37 N. of which it is susceptible, the char- E. 1098 ; Chicago Union Traction acter and extent of the business Co. v. Chicago, 204 111. 363, 68 N. to which it is adapted before and E. 579. after the construction of the pub- i W. S. E. R. Co. v. Stickney, lie work, and, indeed, every fact 150 111. 362, 26 L. R. A. 773, 37 and circumstance legitimately tend- N. E. 1098. ing to show a depreciation or in- 2 In re Amsterdam, 126 N. Y. crease of the value of the prop- 158, 27 N. E. 272. erty, are proper to be considered, s Piper's Appeal, 32 Cal. 530; 29 449 § 476 THE LAW OP SPECIAL ASSESSMENTS.. land by reason of the improvement is the basis for the assess- ment, the particular use to which the property is put, or what the benefits would be if used for a certain purpose, is not a factor in determining benefits, and evidence thereof is prop- erly excluded.* Where the statute prescribes no basis for estimating the cost of an improvement, or the benefits derived therefrom, the appraisers may adopt such basis as will effect a just result.® 476. It is not erroneous for commissioners appointed to assess benefits resulting from widening a street to assess the same upon the hypothesis that all lots on the street will be benefited in the ratio of their values, if there be evidence war- ranting such conclusion.^ The release of land on one side of a street from the public, easement, caused in straightening Hoffeld V. Buffalo, 130 N. Y. 387, 29 N. E. 747. * Chicago Union Tr. Co. v. Chi- cago, 204 111. 363, 68 N. E. 519; Jones V. Chicago, 206 111. 374, 69 N. E. 64; Chicago Union Tr. Co. V. Chicago, 207 111. 607, 69 N. E. 803; Same v. Same, 207 III. 544, 69 N. E. 849; Same v. Same, 215 111. 410, 74 N. E. 449. See also, Kankakee Stone & Lime Co. v. Kankakee, 128 111. 173, 20 N. E. 670. 5 Latham v. Wilmette, 168 111. 153, 48 N. E. 311; Springfield v. Sale, 127 111. 359, 20 N. E. 86; Pike V. Chicago, 155 111. 656, 40 N. E. 567. Benefits are sole ground for the assessment, Ar- nold V. Knoxville (Tenm), 90S. W. 469; Stutsman v. Burlington, 127 la. 563, 103 N. W. 800; Cossitt Land Co. v. Neuseheler (N. J. L.), 60 Atl. 1128. The assessment is not invalidated by not being ex- actly proportionate to benefits in particular instances, Louisville & N. R. Co. V. Barber Asphalt Pav. Co., 197 U. S. 430, 49 L. ed. 819, and see. Bates v. Adamson (Cal.), 84 Pac. 51. Assessments according to area are not violative of the Fourteenth Amendment, Louisville & N. R. Co. v. Barber Asphalt Pav. Co., supra. Levee assessments made according to value under a statute are not invalid because not made according to benefits. Porter v. Waterman (Ark.), 91 S. W. 754. For assessment on lots of varying depth, see Cleneay v. Nor- wood, 137 Fed. 962. For an ar- bitrary assessment for cost of work, see Berdel v. Chicago, 217 111. 429, 75 N. E. 386. For uni- form cost for different kinds of paving and different depths, see Cossitt Land Co. v. Neuseheler (N. J. L.), 60 Atl. 1128. Only prop- erty benefited can be aipsessed, Naugatuck R. Co. v. Waterbury (Conn.), 61 Atl. 474. And pro- portionate to the benefits, John- son V. Tacoma (Wash.), 82 Pac. 1092. « Piper's Appeal, 32 CaL 530. 450 JURISDICTION THE OEDINAU'CE. § 476 such street, is a benefit to the tract to which such laud be- longs, and may be considered in ascertaining benefits.'' Though a tract of land used for farming purposes may not be benefited by an improvement without use as a farm, yet there is a benefit, if its value for any other purpose to which it may be adopted is thereby increased.^ An unplatted tract of land within city limits is subject to taxation for special benefits received the same as though platted into blocks and lots.® The amount assessed upon a tract of land as special benefits cannot exceed the benefits arising thereto by reason of the making of a local improvement. If the amount of benefits equals or exceeds the sum required to be raised, each tract should be assessed its proportionate share of such sum, but if the sum required exceeds the benefits, then each several tract can be assessed only such sum as it is benefited, and the residue must be paid by the city from its corporate funds. ^^ Under a charter providing that the commissioners shall assess such part of the expense on the city, and such part locally as they shall deem just, an assessment of the whole burden upon the property benefited is not for that reason un- just.^^ The fact that some of the improvements made on a street are incidentally beneficial to other streets in the city furnishes no reason for a reduction of the assessment against property abutting the street upon which the work was done.^'' Lots damaged by a change of street grade in front of them are chargeable only with the special benefits accruing from such change of grade, and not with any general benefits shared in common with other owners on the street.^* But 7 Cook V. Slocum, 27 Minn. 509, Chicago, 198 111. 507, 64 N. E. 8 N. W. 755. 1064. 8 People V. Markley, 166 111. 48, lo Goodwillie v. Lake View, 137 46 N. E. 742; Hutt v. Chicago, 111. 51, 27 N. B. 15. 132 111. 352, 22 N. B. 1010. Ed- "People v. Mayor, 63 N". Y. wards v. Chicago, 140 111. 440, 291. 30 N. E. 350, distinguished and ex- 12 Bacon v. Savannah, 105 Ga. plained. 62, 31 S. B. 127. sMedland v. Linton, 60 Neb. is Smith v. St. Joseph, 122 Mo. 249, 82 N. W. 866; Washburn v. 643, 27 S. W. 344. 451 § 4Y7 THE LAW OF SPECIAL ASSESSMENTS. if the opening of a street makes it practicable to open another contemplated street which could not have been opened before, and this fact of itself specially benefits lots adjacent to the new street, such special benefits may properly be considered in entering the special benefits conferred by the opening of the new street^* Where an ordinance for the construction of a sewer contains no provision for allowing its use to property owners beyond its present terminus, their lands cannot be legally assessed to help pay for its construction, as land not specially benefited by a proposed improvement cannot be specially assessed therefor.^^ And a tract that has been once assessed for the full benefits it has received because of the improvement cannot be again assessed because the amount raised by the first assessment was insufficient to pay the ex- penses.^® To render an assessment of benefits legal, it must be regularly ascertained that the property assessed is ben- efited by the improvement to the precise extent of the assess- ment, beyond the ordinary benefit which the owner as one of the community, receives from such improvement.^'' 1 Benefit a question of fact. 477. Whether or not property specially assessed for a public improvement is benefited thereby, is a question of fact, depending on the evidence.^® This implies a hearing before a proper officer or tribunal, and evidence to be pre- sented. To say that the legislature may legally declare that all property in a certain district is benefited by a public im- provement therein is to violate every legal rule, and every principle upon which rests the power of special assessment. The maxim, Be mrnvmis non curat lex, may well be applied to the ordinary and average case ; but to deny a hearing on a 1* Chambera v. Cleveland, 34 n Nichols v. Bridgeport, 23 Ohio St. 551. Conn. 189, 60 Am. Dec. 636. 15 Edwards v. Chicago, 140 111. is Chicago, E. I. & P. R. Co. v. 440, 30 N. E. 350. Chicago, 139 111. 573, 28 N. E. 16 Goodwillie v. Lake View, 137 1108. 111. 51, 27 N. E. 15. 452 JUEISDICTIOIf THE ORDINANCE. §§ 478, 479 question of fact, when a man's property is taken for public use, is such a violent transgression of constitutional princi- ples that it seems remarkable that any court should uphold the doctrine. 478. This question of fact has been held to be one for the conclusive determination of the municipal authorities, unless it is entirely clear that some of the property in the district is not benefited, in which case an attempt to charge it with part of the expense may be reviewed by the courts.^* But this statement is in itself an anachronism, for how can the decision of one authority be conclusive, and yet subject to review by another? To the mind of the author, all these minor difficulties would disappear if the right of appeal or review from an assessment of benefits and damages were given in all cases of public improvements in the same manner and to the same extent as in proceedings under the power of eminent domain. 479. The fact that the amounts assessed severally against various lots exactly equals the cost of the improvement there- of, and are in exact proportion to the frontage of the several lots, will not of itseK vitiate the assessment, provided it appears that the special benefits are equal to such cost and in proportion to the frontage.^" If the assessors conclude that the special benefits extend to any lot of land so circum- stanced that a reasonable owner would use it, or offer it for i» People V. Brooklyn, 23 Barb, furnish no remedy. It does not 166. appear that the assessment upon " It appears that the assessment the property benefited is unequal, upon some of the lots is greater and it does not appear how near than their value for the purposes their true value the lots were val- of annual taxation; and hence it ued for annual taxation; nor does is claimed that this is confiscation it appear that the property was instead of an assessment. The as- not really benefited to the extent sessment is doubtless large upon of the assessment." Earl, J., In the property assessed. The im- re Sackett, etc., Streets, 74 N. Y. provements were expensive and ex- 95. travagant, under a system of legis- 20 Walker v. Aurora, 140 III. lation the wisdom of which may 402, 29 N. E. 741 well be questioned. But we can 453 § 480 THE LAW OF SPECIAL ASSESSMENTS. sale only as an entirety, then they should levy the assessment upon the whole lot, although part of it may lie beyond the lines of the district previously established.^^ What must afltonatively appear. 480. In levying special assessments for benefits received, the record must affirmatively show a compliance with all es- sential conditions to a valid exercise of the taxing power, that the assessment does not exceed the benefit, and any omis- sion of such facts will not be supplied by presumptions.** Where the statute requires property to be assessed to pay for improvements according to the benefits received, it is not suffi- cient to assess each lot according to its frontage. The com- missioners must exercise their judgment as to the amount of benefit each lot receives, and must assess the property accord- ingly, and the report must show that the assessment has been 21 State V. Essex, etc., Board, 51 N. J. L. 166, 16 Atl. 695. An assessment of $2 per front foot on a lot very near a park, and $50 a front foot on property a mile or more away, is not such self-evident inequality as to be so declared as a matter of law. " Two dollars a foot on a lot in an un- improved and sparsely settled dis- trict remote from the center of trade might be in fact a far great- er rate ad valorem than fifty dol- lars a front foot on a business lot in the heart of the traffic. Kan- sas City V. Bacon, 157 Mo. 450, 57 S. W. 1045. 22 Medland v. Linton, 60 Neb. 249, 82 N. W. 866; Skinkel v. Essex, etc., Board, 47 N. J. L. 93; Allison Land Co. v. Tenafly, 08 N. J. L. 205, 52 Atl. 231; Resell v. Neptune City, 68 N. J. L. 509, 53 Atl. 199; Poilon v. Rutherford, 65 N. J. L. 538, 47 Atl. 439. Note. — The statutes under con- sideration provide that an assess- ment may be made to the extent of benefits received, and that the commissioners shall mabe a just and equitable assessment of the damages or benefits with due re- gard to the rights and interests of all persons concerned, as well as to the value of the lands and real estate taken, damaged or ben- efited. The court say : " These two sections provide a constitu- tional mode of making the assess- ment, but the report of the com- missioners is fatally defective in failing to certify that the assess- ment against the prosecutor is not in excess of the benefits conferred upon his lands. The assessment must therefore be set aside." Poilon V. Rutherford, sv/pra. 454 JUmSDICTION THE OKDINAJiTCK. § 481 SO made.*^ Under a charter where the cost of street im provements is chargeable to the lots or parcels of land to be assessed " in proportion to the benefits secured thereby," an assessment according to the frontage of each lot on the street improved is void, unless it afBrmatively appears that it was made upon an actual view of the property and a considera- tion of the benefits actually accruing to each parcel, — even where the charter constitutes the property fronting upon the improvement as the assessment district.''* It is true there are some authorities which hold that the actions of the tax- ing officers are presumptively in accordance with the statute, and therefore correct, but the rule does not apply to the assessment of benefits. Front foot assessments — Compliance with statute. 481. An assessment under the rule of benefits is not nec- essarily vitiated by an assessment according to frontage.^® And one court which has most strenuously upheld the doctrine of benefits has held that assessments for benefits by the lin- eal foot along the frontage are not necessarily wrong, and that there is no rule that condemns such method without proof of its injustice, either apparent on the record or es- 23 state V. Hudson, 29 N. J. L. equitable relief against the assess- 104; Lieberman v. Milwaukee, 89 ment. Hayes v. Douglas Co., 92 Wis. 336, 61 N. W. 1112. Wis. 429, 31 L. R. A. 213, 53 Am. 24 Where the cost of street im- St. Rep. 926, 65 N. W. 482. provements is chargeable to thfe The fixing of a special amount lots and parcels of land benefited of benefits for each lot is not thereby, an assessment upon the an objectionable method of assess- property fronting the improve- ment if it appears that the amount ment only, with nothing to show so fixed was determined upon the that the proper officers determioed, basis of the peculiar benefit re- in the exercise of their judgment, ceived by each lot from the im- that no other property was bene- provement. Van Wagoner v. Pat- fited, is presumed to be unequal terson, 67 N. J. L. 455, 51 Atl. and unjust, and payment by a 922. property owner of his proportion 20 Beck v. Holland, 29 Mont of the assessment is not a condi- 234, 74 Pac. 410. tion precedent to his obtaining 455 '§ 482 THE LAW OP SPECIAL ASSESSMENTS. tablished by independent testimony.^® Like all general statements attempted to be condensed in a single sentence, they are either too broad or too narrow, and this one is clearly too broad. A report of the appraisers to the effect that they have assessed the expense of the improvement ac- cording to the frontage, without finding that the special ben- efits are in that proportion, would not be in compliance with the law.*^ That the assessment against objector's lots cor- responds in amount with those against other lots in propor- tion to frontage does not, of itself, overthrow the assessment, where the commissioner testifies that he made the assess- ment according to benefits.** As a general rule, it may be laid down that the principle upon which the assessment was made, the rule adopted, must affirmatively appear in the assessor's report. h ' Future benefits not to be considered. 482, It is the present enhancement in value of the prop- erty assessed which authorizes the assessment for benefits; and the future effects of the same improvement or the effect of future contingent improvements, are not to be considered in estimating benefits. Where property cannot be benefited except in case of a subsequent work for which no provision has been made, it cannot be assessed for such improve- ment.^* Whatever may be the effect on the market value of property, if the act ordered to be done is a proper subject for consideration, all natural and probable results to flow from the improvement ordered may properly be considered in es- timating benefits. But the future action of the city as to 26 State V. Passaic, 37 N. J. L. 111. 100, 23 N. E. 590; Hutt v. 65. Chicago, 132 111. 352, 23 N. E. 27 Springfield v. Sale, 127 111. 1010; Edwards v. Chicago, 140 359, 20 N. E. 86. 111. 440, 30 N. E. 350; Washington 28 Sanitary District v. Joliet, 189 Ice Co. v. Chicago, 147 111. 327, 111. 270, 59 N. E. 566. 37 Am. St. Rep. 222, 35 N. E. 29 Title Guaranty & Trust Co. v. 378. But see Harris v. Chicago, Chicago, 162 111. 505, 44 N. E. 162 111. 288, 44 N. B. 437. 832; Hyde Park v. Chicago, 132 456 JUEISDIOTIOlir THE OEDINAITCE. § 483 ordering additional improvements can be regarded neither as a probable or natural consequence to flow from the improve- ment. Thus, where property is taken for extending a street, the commissioners, in assessing actual benefits, have no right to take into consideration the probability of the city order- ing a bridge over the river crossed by the street. Benefits assessed must be confined to the improvement ordered.^" Nor can an assessment be made upon the prospect of a future connection with a sewer unless a drainage district is created which will drain into it, or some provision be made to eventu- ally ensure such connection ; ^^ nor upon lands lying beyond the terminus of a proposed sewer for benefits to accrue there- after by an extension of the sewer.^^ In Wisconsin, the rule appears to be different, and perhaps also in JSTew Jersey.*^ Offsetting benefits and damages. 483. Unless there be some constitutional inhibition against the offsetting of benefits against damages, pro tanto, there seems no reason why it should not be permitted. Un- der the constitution of Illinois, it has been held that sup- posed benefits to property not taken cannot be set off against the compensation to be paid for land actually taken, but in 30 Hutt V. Chicago, 132 111. 352, street. Dickson v. Racine, 65 Wis. 23 N. E. 1010; Holdom v. Chi- 306, 27 N. W. 58. cago, 169 111. 109, 45 N. E. 164. When the benefit to property 31 Title Guaranty & Trust Co. v. accruing from the construction of Chicago, 162 111. 505, 44 N. E. a trunk sewer is prospective only, 832. depending upon the construction 32 Edwards v. Chicago, 140 111. of another and connecting sewer 440, 30 N. E. 350. or drain not yet built, the as- 33 Where the opening of a street sessment upon such property is to makes practicable the building of be made at the same time, and a bridge across a river at that together with that made upon place, which bridge would be a property presently benefited there- public convenience and almost a by, but the lien of said assess- necessity, the benefits accruing to ment does not come into exist- such lots from the expectation that ence until the connecting sewer or such bridge would be built may drain is built. Seaman v. Cam- be considered in assessing the ben- den, 66 N. J. L. 516, 49 Atl. 977; efits from the opening of such Vreeland v. Bayonne, 60 N. J. L. 457 § 484 THE LAW OF SPECIAL ASSESSMENTS. respect of damages to land not taken, special benefits to property damaged may be set off against damages accruing to the property.®* And in a mucb earlier case it was held that damages for the taking of land for a public park may be offset by the benefits actually accruing to the remainder of the land of the same owner, to the extent of the benefits.^^ In Louisiana the rule is that resulting benefits cannot be offset against the cost of the property taken.®* If the charter requires a consideration of both benefits and damages, the omission of the assessment roll to show on its face that the latter were considered, is fatal.®^ Objections to assessment — When made. 484. The objection that the tax is in excess of the benefit must be made at or before the application for the confirma- tion of the assessment.®* And if objections because the as- sessment was based on the valuation of the property instead of according to benefits received by reason of the improvement were not urged before the city council at the time set for hearing objections, they cannot be urged on foreclosure of the assessment liens. ®^ The confirmation by the court of an 3* Leopold V. Chicago, 150 III. erty. Atkins v. Boston, 188 Mass. 568, 37 N-. E. 892; Concordia 77, 74 N. E. 292; Snow v. Bos- Cemetery Ass'n V. M. & N. W. R. ton, 188 Mass. 77, 74 N. E. 292. Co., 121 111. 199, 12 N. E. 536. Offset — Only difference paid. 168, 37 Atl. 737. Under a city charter providing 85 People V. Williams, 51 111. 63, that, in condemning lands for Paterson etc., E. Co. v. Nutley street purposes, the compensation (N. J. L.), 59 Atl. 1032. Power and damages on one side are to V. Detroit (Mich.), 102 N. W. 288. be offset by the benefits on the Quirk V. Seattle (Wash.), 80 Pac other, only the difference between 207, them is to be paid by or to the se Charnock v. Fordoche, etc., owner. Koller v. La Crosse, 106 Co., 38 La. Ann. 323. Wis. 369, 82 N. W. 341. 37 Chicago V. Wright, 32 HI. 192. 38 pfeiffer v. People, 170 III. Where a benefit assessment could 347, 48 N. E. 979 ; Heath v. Mc- Have been made, but the officials Crea, 20 Wash. 342, 55 Pac. 432, neglected to make one, the actual 3» Northwestern, etc.. Bank v, benefit to the property cannot be Spokane, 18 Wash. 456, 51 Pac used by way of set-off to a claim 1070; Heath v. McCrea, swpra. for damages for taking the prop- 458 JUEISDICTIOIT THE OEDHifANCE, § 486 assessment for benefits will not be reversed upon a question of fact, upon the application of parties having notice and an opportunity to be heard, when there are facts in the record returned to sustain the finding of the court that the assess- ment was laid according to the peculiar benefits received from the improvement.*** In the case of an assessment for building a levee to be levied on the increase in value of land by reason of the improvement, one whose lands, situated in the levee district, are not subject to overflow, cannot object that his lands are assessed, as his liability depends, not upon the fact that the lands are subject to overflow, but upon the fact that they will be benefited by the improvement.*^ Special taxation. 485. This method of taxation for building sidewalks is peculiar to Illinois, where it has been held that the deter- mination by a city council that sidewalks shall be constructed by special taxation is a determination that the property so specially taxed is benefited to the extent of the special tax, and is final, and the courts have no right to interfere with such determination unless it be arbitrary or tmreasonable.*^ This rule has been changed by statute, and a review of the benefits in special taxation proceeding placed upon the same footing as those in special assessments. In an application by a city for judgment on a special tax for the construction of a sidewalk, the existence and filing of the special tax list must be proven.*^ Special taxation differs from the assess- *o Van Wagoner v. Paterson, 67 *^ People v. Record, 212 HI. 62, N. J. L. 455, 51 Atl. 922. 72 N. E. 7. *i Carson v. St. Francis Levee Contiguous property not necessa- Dist., 59 Ark. 513, 537, 27 S. W. rily benefited. 590. The mere fact that certain real *2 Chicago & N. W. R. Co. t. estate is contiguous to a street Elmhurst, 165 111. 148, 46 N. E. improvement is not conclusive evi- 437; Peru v. Bartels, 214 111. 515, dence that such property is spe- 73 N. E. 755; Pierson v. People, daily benefited by such improve- 204 111. 456, 68 N. E. 383; Davis ment. Holdom v. Chicago, 169 V. Litchfield, 155 111. 384, 40 N. 111. 109, 48 N. E. 164. E. 354. 459 § 485 THE LAW OF SPECIAL ASSESSMENTS. ment of special benefits, only that in the one the benefits are ascertained in a mode prescribed by law, while in the other they are determined by the municipal authority. In special taxation the imposition of the tax is, of itself, a determination that the benefits to contiguous property will be as great as the burden imposed. Hence, it has been held that when the determination of the city council is arbitrary and unreason- able in the imposition of the tax upon property in no respect benefited, the ordinance for the levy is void.** A special assessment, as well as a special tax, may be levied on con- tiguous property,*^ but they cannot be combined in one im- provement.*® The fact that an ordinance confines an assess- ment for benefits to contiguous property does not make it a special tax.*^ Where the cost of a local improvement is to be defrayed in whole or in part by special taxation, the ordi- nance must either fix the amoimt to be raised, or give data from which it can be ascertained by the commissioners.** In Nebraska, a special tax cannot be levied until the report of the appraisers to assess damages has been made and con- firmed.*® ** Davis V. Litchfield, 145 111. Cunningham v. Peoria, 157 111. 313, 21 L. R. A. 563, 33 N. E. 499, 41 N. B. 1014. 888. *» Merrill v. Shields, 57 Neb. 78, *5We8t Chi. Park Com'rs v. 77 N. W. 368. Farber, 171 HI. 146, 49 N. E. Sidewalks. 427. Abutting owners are liable for *8 Kuehner v. Freeport, 143 111. cost of sidewalks, whether original 92, 17 L. R. A. 774, 32 N. E. 372. or reconstruction, under Kentucky *T Bass V. South Park Com'rs, Stats., 1903, Sec. 3096. Mudge v. 171 111. 370, 49 N. E. 549. Walker (Ky.), 92 S. W. 1046. *8 Kuehner v. Freeport, svj>ra. Special taxation. Under an ordinance for a spe- This form of levying a special cial tax to pay for a pavement assessment has produced some de- to be levied, "upon the lots, cisions which are undoubtedly cor- blocks, tracts and parcels of land rect as applied to laying side- contiguous to said improvement," walks under the police power, but the tax need not be extended up- contrary to the almost unru£9ed on the streets abutting upon the current of authority as applied to improvement, as this will not be special assessments, as well as to included unless specifically named, the constitution of Illinois. But 460 JUKISDICTION THE OKDHiTAJifCE. §§ 486, 487 Assessment in excess of value of property. 486. An absurdity to which every system of special as- sessment is exposed, other than that made on the basis of special benefits, occurs in those cases when the assessment exceeds the value of the property, either before or after the improvement. They usually occur where the " front foot " or " area " rule of assessment is followed, and it is to the honor of the courts which uphold those systems, that they do not let judicial precedent or the principles of res judicata stand in the way of prevention of what is in effect a con- fiscation. The difficulty is that it is only the exceptional and extreme cases which arouse these courts to a realization of the wrongs that may be done by the application of principles which are not only erroneous, but logically and judicially absurd, and leave the great sea of cases where injustice is done, but in a retail way, without remedy. A brief review of some of these cases will give the concrete illustrations for the author's creed. Creoi^a. 487. A strip of land four hundred feet long, seven feet in width at one end and three feet in width at the other end, extended along one side of a city street which was being paved. Under the front foot rule of assessment that pre- vailed, it was assessed $721 for benefits, while its total value, after the completion of the work, was but $260. A suit in equity was brought by the aggrieved owner, and the collection of the tax upon his property was enjoined. The court, after blandly admitting that " the exact extent of benefit necessary to uphold such an exception is incapable of definition," goes recent legislation has extracted the Special taxation of right of wa/y. sting of these decisions, by sub- A railroad company's right of stituting the rule of benefits in way contiguous to a street may place of the frontage rule, in ap- be specially taxed for its improve- portioning the tax. See Green v. ment on a basis of frontage. Pal- Springfield, 130 111. 515, 22 N. E. mer v. Danville, 166 111. 42, 46 602, as a. sample case. N. E. 629. 461 §§ 488-490 THE LAW OP SPECIAL ASSESSMENTS, on and states unreservedly that " it may be asserted with perfect confidence, that the present is one of those extreme cases of such doubtful benefit and probable spoliation as will justify the interference of a court of equity in order to pre- vent the citizen from being arbitrarily deprived of his prop- erty." ^^ If the court had designated the proceeding as high- way robbery, the facts would have justified the application. Iowa. 488, In the recent case of Iowa Pipe & Tile Co, v, Calla- nan, 101 IST. W. 141, lots only 8 feet deep, and 100 feet long, were assessed for benefits the same rate per front foot as adjoining lots of same length, and from 120 feet to 175 feet deep. The court promptly Tacated the assessment as mani- festly unequal, and in substantial excess of benefits. Kentucky. 489, The case of Preston v. Eudd has already been re- ferred to,^^ and the facts certainly justified the court in dis- cussing the power of the legislature to establish the rule for assessment of benefits, in refusing to sustain the assessment. In a much later case, where again the assessment was greater than the entire value of the property, the same court again takes occasion to uphold the front foot rule adopted by the legislature as wise, just, and ordinarily conclusive, and then goes on to say : " Where the entire property is taken to pay for a public improvement, there is no room for a presumption as to the benefits received, but a case of spoliation is shown,*** Maryland. 490, The case of Moale v. Mayor, etc., 61 Md. 224, af- fords an apt illustration of adopting any other rule of assess- ment than that of actual benefits. Here a strip of land 120 00 Atlantic v. Hamlein, 96 Ga. b2 Louisville v. Bitzer, 115 Ky. 381, 23 S. E. 408. 359, 61 L. E. A. 434, 73 S. W. 51 See Conflicting Decisions, this 1115. chapter, supra. 462 JUEISDICTION THB OKDINAITCE. §§ 491-493 feet long, 12 feet wide at the base, and tapering to a point, ■was assessed at $4.05 a foot, admittedly much in excess of its actual value, and the assessment held to be a personal liability against the owner. A more complete case of confiscation, or of taking private property for public use without just com- pensation, is difficult to conceive. The court, however, held that " Where an entire lot was assessed according to the front foot rule, the assessment is not invalid because a part of the lot, if assessed by itself, would present a case of extreme hardship, if not fatal to the rule in such case." — ^ Nebraska. 491. An assessment of $2,000 against lands where the benefit did not exceed $300, was set aside, in an action to recover the amount of the tax which had been paid under protest.^* New Jersey. 492. Sewers, made very expensive because of extensive rock excavation, were laid in a district where lands were cheap, varying in value prior to the improvement from $350 to $600 a lot, while the assessment for benefits was upwards of $200 a lot. The evidence showing that the enhancement in present value of the lots was less than the amount of the assessment, the latter was vacated.*** Ohio. 493. Upon the admitted facts the naked question was presented as to whether a special assessment for a local im- provement could be made, not only in excess of the special benefits conferredj but of the value of the property with the benefits added by the improvement. Although placing its opinion somewhat more on the local Taylor statute, than on general principles, the court promptly reversed the judgment. 53 Cain V. Omaha, 42 Neb. 120, 54 State v. Mayor, etc., 63 N. 60 N. W. 368. J. L. 202, 42 Atl. 773. 463 § 494 THE LAW OF SPECIAL ASSESSMENTS. The defendant neither petitioned for the improvement, nor aided in its promotion.®^ Pennsylvania. 494. Where plaintiff owned a piece of land 405 feet long,, abutting a street, and being 31 feet wide at one end, narrow- ing to a point at the other, and it was assessed $446.05 for laying of water pipe along the entire front of 405 feet, at the rate of $1.10 a foot, the court refused to entertain a defense that the assessment exceeded the entire value of the property. The case is so remarkable that the opinion is given at length in the foot-note. It is difficult to conceive a more flagrant case of a taking for public use without compensation, and the fourteenth amendment to the federal constitution is but a ghastly mockery if it does not protect from spoliation the victims of such a judicial wrong. ^* OB Walsh V. Barron, 61 Ohio St. 15, 55 N. E. 164, 769. 56 Per Curiam : It may be that the front foot rule is not the best that might be devised for the assessment of street improvements in cities upon abutting property, but for the present it is the only one we have ; and, while it has been held that it cannot be applied to farm lands, it has nowhere been decided that it is not applicable to .city proper- ty. It is perhaps impossible to frame any general rule that would produce exact uniformity and do equal justice in all eases. This arises from the fact that a rule to be valid must be general, and the further conceded fact, that in the application of all general rules there will be eases of in- dividual hardship. This would ap- pear to be one of such cases. The lot against which the assessment was filed ... is said not to be worth the amqunt of the as- sessment against it. If this be so, it does not affect the validity of the law under which the assess- ment was filed. As a general rule the hardship may be avoided in such cases by squaring the lot with the owner of the rear, and in this way lessening the front and deepening the remainder. If the objection now made to this assess- ment were to prevail, it would be very easy for the owner of a, valuable lot to convey a narrow strip of the front to a convenient friend, and thus escape altogether. We are of the opinion that the defendant's affidavit does not dis- close a sufficient " defense." Har- risburg v. McCormick, 129 Pa. St. 213, 18 Atl. 126, following Michen- er V. Philadelphia, 118 Pa. St. 535, 12 Atl. 174; cf. Mt. Pleasant V. B. & 0. R. Co., 138 Pa. St. 365, 11 L. R. A. 520, 20 Atl. 1052, and Allegheney v. West Peim. R. 464 JUEISDICTION" THB OEDINAITCE. §§ 495, iOe Miscellaneous ruling^. 495. It cannot be ruled as a matter of law that the re- moval of a pool of water is not of itself a benefit to land near the water but not abutting upon it.^'^ Benefits may be as- sessed against lots in one ward to help pay for land in another ward condemned for a public park, where there are no char- ter provisions limiting the general power for condemnation of lands for public use.®® The public at large and the lands of private individuals may both be benefited by a public im- provement; and in determining the necessity the jury are not necessarily called upon to determine how much each lot is benefited, and what proportion of damages each lot shall bear.®® A judgment confirming a special assessment is in rem against the land itself, and the benefits assessed cannot be apportioned against the leasehold and the remainder in fee as separate estates and separate judgments be entered as to each, nor can they be assessed in gross upon several contiguous lots, nor recovery had upon a tax bill issued upon such an assessment* "^ Benefit assessments held valid. 496. The reclamation statute of California seems to re- quire assessments according to benefits, but violates no pro- visions of the federal or state constitutions if not so made.®* Co., 138 Pa. St. 375, 21 Atl. 763. Evidence of benefits and damages The plea as to conveyance of in street openings, see narrow strip to avoid liability is Mayor, etc., v. Smith & S. Brick puerile in view of the decisions Co., 80 Md. 458, 31 Atl. 423. on that subject. See Tit., " Con- When benefits assessed againat veyances to Avoid Assessment." land dedicated for street, see 67 Oilman v. Milwaukee, 55 Wis. State v. West Hoboken, 51 N. J. 328, 13 N. W. 266. L. 267, 17 Atl. 110. Bs Beecher v. Detroit, 92 Mich. Extended report of an approved 268, 52 N. W. 731. assessment, see 59 Chicago Union Tr. Co. v. Chi- Extension of Hancock Street, 18 cago, 204 111. 363, 68 N. E. 519. Pa. St. 26. «i St. Louis V. Provenchere, 92 62 Reclamation Dist. v. Hagar, 6 Mo. 66, 4 S. W. 410. Sawy. 567, 4 Fed. 366. 30 465 § 49Y THE LAW OF SPECIAL ASSESSMENTS. When the jury report that " against all property in the bene- fit district not hereinbefore specifically described and assess- ed with benefits, we find and assess no benefits," it cannot be said that any property in the benefit district was omitted from assessment.®* An assessment regularly made under an ordinance providing for assessing damages sustained by any property from a street improvement upon the property bene- fitted thereby, is conclusive as to the benefit bestowed and amount of damages sustained.^* It is no valid objection to a public improvement ordinance that it provides for paying the expense thereof wholly by special assessment®^ Under that portion of the charter of the city of St. Paul authorizing the board of public works to find what property is benefited by a local improvement, and the extent to which the benefit extends, the judgment of that board is final and conclusive, and not reviewable by the courts except for fraud, demon- strable mistake of fact, or upon a shovsdng that in making it the board applied an illegal principle or an erroneous rule of law.88 Benefit assessments held invalid. 497. Where the statute under which an assessment is made provides it shall be in the ratio of benefits and damages resulting, it will be void if made in any other manner; ®'^ a lot not abutting a street which is being paved, but is separated therefrom by a railroad track and freight yard, is not bene- fited by such paving ; ®* where an ordinance provides for widening a street which crosses a railway track, and building a bridge over it, and charging the cost by special taxation against the railway property contiguous, without affording any compensation to the company for such burden, the ordi- 63 Kansas City v. Bacon, 14T se State v. District Court Mo. 259, 48 S. W. 860. (Minn.), 103 N. W. 744. eiWray v. Pittsburgh, 46 Pa, 87 Bibel v. People, 67 111. 172. St. 365. 68 Jones v. Chicago, 206 III. 374, «5 Ricketts v. Hyde Park, 85 69 N. B. 64. m. 110. 466 JtmiSDICTION THE OEDrNANCB. § 498 nance is not only unreasonable, but clearly in excess of the powers of the council, and therefore void.®® Where the evi- dence fails to show that lands within the city limits, but used for agricultural purposes, will not be specially benefited by the construction of a sewer which does not reach the lands, the confirmation of an assessment therefor is erroneous ; '"^ where gross inequality results from the fact that one side of a street is divided into squares, and the other not, the assess- ment is invalidated ; ''^ where the statute requires damages as well as benefits to be assessed, the omission to do so avoids the assessment, and the proceedings are coram non judice.''^ Where certain landowners appeared before the assessing board in a street opening proceeding, and consented to its being opened through their land, providing no benefits should be assessed against them, to which the commissioners agreed, the agreement was illegal, as tending to make the assessment as to others unequal and partial, and invalidated the assess- ment made against the other landowners.^* It is not proper to pay full value for land taken for a street, with damages to the remainder of the tract, irrespective of the benefits.''* 498. Where a city charter confers no power to exempt from general or special taxation any lots in the city limits, the filing of a plat in the recorder's office, with a stipulation thereon that the dedication is made with the distinct condi- tion that the lots are not to be specially taxed or assessed to pay for the widening or extension of streets without the consent of the owners, the cily by accepting the dedication . did not agree to the stipulation, being without power to make such an agreement. ^^ Where the charter provides that an assessment for a local improvement is to be made on real 69 Bloomington v. Chicago & A. tz Mayor, etc., v. Porter, 18 Md. R. Co., 134 111. 451, 26 N. E. 284, 79 Am. Dec. 686. 366. " St. Louis v. Meyer, 77 Mo. 13. 70 Edwards v. Chicago, 140 111. T4 St. Louis v. Glenvitz, 148 Mo. 440, 30 N. E. 350. 210, 49 S. W. 1000, following 71 Louisville v. Selvage, 106 Ky. Newbry v. Platbe Co., 25 Mo. 258. 730, 51 S. W. 447, 52 S. W. 809. TisVrana v. St. Louis, 164 Mo. 146, 64 S. W. 180. 467 § 499 THE LAW OF SPECIAL ASSESSMENTS. estate specially benefited in proportion to the benefits re- ceived, and that no land shall be assessed beyond the actual benefits, a report showing that the entire cost was imposed on lands deemed to be specially benefited, but does not show the assessments were imposed in proportion to, and limited by, the benefits, is fatally defective.''® 499. A uniform assessment arbitrarily imposed by the law on all property affected in the same way by a public im- provement, will not be sustained if the advantages to the lots vary.''^ In condemning lands for street purposes, imder charter provisions requiring compensation and damages on one side to be offset by the benefits on the other, and only the difference paid to or by the owner, the award is valid or invalid as a whole, and the landowner cannot recover for the former even when the latter are invalid by reason of an error of the commissioners.'* 76 state V. West Hoboken, 51 N. J. L. 267, 17 Atl. 110. 77 State V. Bayonne, 63 N. J. L. 202, 42 Atl. 773; Friedrieh v. Milwaukee, 118 Wis. 254, 95 N. W. 126. Note — In the Bayonne case above there were 144 such Ids which were uniformly assessed $204.75 except the 12 corner lots where the assessment was $207.93 each. The highest price set as the value of the lots before the building of the sewers was from $350 to $600 each according to location, and the court was of the opinion that no reasonable man would construct a sewer for such property at a cost exceeding $200 a lot. 78 Roller V. La Crosse, 106 Wis. 369, 82 N. W. 341. Nor, in such action by the land owner, can the city counterclaim the amount of the benefits as- sessed. Non-assessment of narrow strip between sewer and next pro- See, Atlanta v. Gabbett, 93 Ga. 266, 20 S. B. 306. Notes of some additional de- cisions on benefits. Validity of Indiana statute. The Indiana statute, known as the Barrett law, making it the duty of the common council to ad- just the assessment for street and alley improvements, under said act, to conform to the actual special benefits accruing to each of the abutting property owners, is a valid enactment. Adams v. Shelbyville, 154 Ind. 467, 49 L. E. A. 797, 77 Am. St. Rep. 484, 57 N. E. 114; Sehaefer v. Werling, 188 U. S. 516, 47 L. ed. 570, 23 Sup. Ct. Hep. 449. Validity of Iowa statute. The Iowa statute providing that every special assessment shall be in proportion to the special bene- 468 JUEISDICTIOIT THE OEDINAJiTCE. §§ 500, 501 The front foot rule — In general. 500. In one of 'the earlier chapters, the theory of this subject was discussed, and the fact established that the nu- merical authority for the so-called " front foot rule " is largely in excess of authority to the contrary.'^® A careful analysis of the cases, and the reasoning of the courts upon the question, reveals a clearly defined line of cleavage which splits it into two distinct groups of cases. The first class consists of those cases which adhere strictly to theory of leg- islative supremacy on the subject, ignoring the principle of benefits entirely ; the other class treats the front foot rule, not as a principle, but merely as a practical method of securing the uniformity and equality which all the courts commend. One class holds it valid because of the rule ; the other holds it valid notwithstanding the rule. Front foot rule as a principle. 501. In the first class of cases just referred to the front fits conferred upon the property assessed. Cheney v. Beverly, 188 thereby and not in excess of such Mass. 81, 74 N. E. 306. benefits, is sufficiently definite, and Rule of ienefits, enhancement in no rule is necessary to prescribe value. what shall and what shall not be Chicago U. T. Co. v. Chicago, taken into consideration. Stuts- 204 111. 363, 68 N. E. 519. man v. Burlington, 127 Iowa, 563, 37^0 benefits, no liability. 103 N. W. 800. Where there is no legal liability Jurisdiction limited to property for the grading of a street, there benefited. can be recovery for benefits con- Where a charter provides the f erred. Carter v. Cemansky, 126 expenses of constructing sewers Iowa, 506, 102 N. W. 438. shall be assessed and be a lien Excess eogt to be borne by public. upon the property to be benefited The fair cost of a public im- thereby, in proportion to the bene- provement is not necessarily the fit, the jurisdiction conferred is measure of benefit to the property limited to the property to be ben- benefited thereby. If the cost ex- efited. People v. Brooklyn, 23 eeeds the special benefit the public Barb. 166. must bear the excess as a general Assessment must not exceed bene- benefit. State v. Bayonne, 63 N. fits. J. L. 202, 42 Atl. 773. No assessment shall exceed the T9 Chapter III. special benefit received by the state 469 '§ 501 THE LAW OF SPECIAL ASSESSMENTS. . i i foot rule is regarded as a principal of the law of taxation * '> by special assessment^ the power of the legislature being ^ recognized as sovereign and beyond restraint. The rule es- ' tablished by these cases is to the effect that where the statute provides for assessing the expense of a street improvement upon the abutting lots^ each lot must be assessed according to its frontage upon the work, irrespective of its shape, size or depth, and regardless of benefits.*" In an early case in Michigan, it was held that where the statute authorized the whole expense of grading and paving to the center of the street, to be assessed against the lot fronting the street, mak- ing it a lien on the property, a personal charge on the ownerj and authorizing a warrant for distress and sale of his goods, cannot be sustained either as an exercise of the taxing power, inasmuch as it wholly disregards apportionment, nor as an exercise of the police power, as parties cannot be compelled to make improvements of this character under that power. Bid, the apportionment may be on a frontage basis, if the legislature so direct, as it necessitates taxing districts, and the apportionment must be made throughout such district.*^ And one of the ablest jurists and writers of the past gen- eration, referring to this case, and others somewhat similar, says : " If anything can be regarded as settled in municipal law in this county, 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, on 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 important to refer to what they say. But the question is not new ; it was settled for us thirty years ago." *^ But notwithstanding the state- so Jennings v. Le Breton, 80 Cal. si Motz v. Detroit, 18 Mich. 495. 8, 21 Pac. 1127; Diggins v. Harts- 82 Cooley, J., in Sheley v. De- home, 108 Cal. 154, 41 Pac. 283; troit, 45 Mich. 433, 8 N". W. 52. Allen V. Davenport, 107 Iowa, 90, This principle is emphasized in a 77 N. W. 532. late case, holding it to be compe- 470 JtTKISDICTIOM^ • ■ THE OKDINAUCK. § 501 ment at the close, the authority of the legislature on this proposition is being more and more doubted, the principle of benefits growing and becoming continually more wide- , spread, and as it is the only principle which reconciles all the diflficulties in the way of making assessments that are legal, and is logical, practical and just, it must inevitably prevail over the front foot rule as a principle, no matter to what limit the latter may be extended in practice. The de- cisions of other courts along the same line as those just cited may be read in the accompanying note.** tent for the legislature to assess the cost of paving a street upon abutting property according to frontage. Kalamazoo v. Francoise, 115 Mich. 554, 73 N. W. 801. Michigan. Ambiguity m certifieate. 83 In the ease where the certificate of an assessor is ambiguous, the fact that the tax has been laid apparently mthout regard to the value or use of the property, but strictly in proportion to the front- age on the street, raises a strong inference that the requirements of the ordinance have not been ob- served. Warren v. Grand Haven, 30 Mich. 24. North Dakota. Legislative supremaoy undoubted. It is competent -for the l^sla- ture to direct that all the expense of paving a, city street shall be assessed against the abutting property in proportion to frontage. Eolph V. Fargo, 7 N. Dak. 640, 42 L. R. A. 646, 76 N. W. 242; Rob- erts V. First Nat. Bk., 8 N. Dak. 504, 79 N. W. 1049; Webster v. Fargo, 9 N. Dak. 208, 56 L. E. A. 156, 82 N. W. 732. Ohio. Must operate uniformly. The assessment, whether by front foot or by value, must be uniform, operating upon all- lands within the district alike. The fact, that one or ihore tracts have not been benefited does not render the assessment invalid. Nor. Ind. R. Co. v. Connelly, 10 Ohio St. 159. Each lot Udble, riot exceeding max- imum. Where a street has been im- proved and an assessment per front foot of the abutting lots been made to pay therefor, each such lot is separately liable for the amount assessed upon it, not to exceed the maximum allowed by law. Carry v. Folz, 29 Ohio St. 320. In Ohio, the amount of the as- sessment is usually limited to a certain percentage of the valua- tion. Oregon. VaUd, under law authorimng as- sessment of cost to each lot. An assessment by the front foot is valid and constitutional under a charter making each lot or part thereof liable for the cost, as the council may determine, of making a proposed improvement on the half street in front thereof, and that the council may assess upon each lot or part thereof its pro- portionate share of said costs. The 471 § 502 THE LAW OF SPECIAL, ASSESSMENTS. Front foot rule as a convenience. 502. The second class of cases considers the front foot rule, so called, as a practical means of applying the principle of benefits. The Pennsylvania court accurately express^" it as follows : " The front-foot rule does not express a prin- ciple of taxation, which might be capable of indefinite ex- pansion over a continually wider area, and upon a contin- ually enlarging class of subjects ; but that it is a mere device of convenience, based upon the observed facts that properties similarly situated are usually of a similar value, and are usually affected alike by public improvements along their respective fronts." ** Many of the cases in this class seem rule for assessing the expense not having been prescribed, the assess- ment may be made by the front foot in the discretion of the city authorities, if that mode seems to them most likely to determine the actual cost. Wilson v. Salem, 24 Or. 504, 34 Pac. 9, 691. As near proportionate as any rule. The front foot rule of assess- ments for street improvements is as near proportionate as any rule that can be devised in a case where the improvement consists of an elevated roadway over slightly uneven ground, and the assessment varies according to the height of the structure in front of the dif- ferent lots. King V. Portland, 38 Or. 402, 55 L. R. A. 812, 63 Pae. 2. Pennsylvania. Inequalities of lots insuffioient to evade rule. Inequalities in surface, or in the situation and depth of the lot, are not sufficient grounds for re- fusing to apply the foot-front rule in special assessments against city lots. McKeesport v. Busch, 166 Pa. St. 46, 31 Atl. 49. South Dakota. Not repugnant to organic act of S. Dakota. An assessment for improving an avenue apportioned at a fixejl sum per front foot, is not repi/ignant to the Organic Act, and is valid. W. & St. P. E. Co. V. Wat/jrtown, 1 S. Dak. 46, 44 N. W. 1072. Wisconsin. Action of council conclusive. Under a charter^ eropov^ering the city authorities to apportion the entire cost of a sewer and pave- ment among the several lots front- ing on a street according to their respective frontages, the action of the common council in determining what property is benefited thereby and is assessed therefor is con- clusive. Meggett V. Eau Claire, 81 Wis. 326, 51 N. W. 566. This case stands practically alone in Wisconsin, where the principle of benefits for pavements is almost exclusively recognized, although the front-foot rule is in vogue as to laying water pipe and constructing sewers. s^Witman v. Reading, 169 Pa. St. 375, 32 Atl. 576. 472 JUEISDICTION THE ORDINANCE. § 502 to consider the principle of benefits and the front-foot rule as going hand, in hand, each being a limitation, or at least a restraint, upon the other, and that an assessment according to frontage is not improper under a statute requiring assess- ments according to benefits, when the benefits have been ac- tually assessed according to frontage.*® And. a recent de- cision of the federal supreme court holds that a state statute under which the cost of a public improvement may be as- sessed upon the abutting property in proportion to frontage does not violate the Federal Constitution where, as construed by the state courts, it requires such assessment to conform, to the actual special benefits accruing to each of the abutting owners.*® Although numerous states have passed laws pro- viding for the validity of the front foot method of assess- ment for street work, yet if their practical operation is to confiscate property, they are obnoxious to the Fourteenth Amendment, and for that reason it is the duty of the courts to declare them void.*'' Such an assessment is to be treated as prima facie correct, but is not exclusive of the right to Assessments on individual prop- made in proportion to frontage erties for public improvements can and in accordance with benefits le- only be made to the extent of ceived by the property assessed, an the local and special benefit re- assessment against a tract of forty osived therefrom, and the system acres, wholly unplatted and used of assessment by the front foot exclusively for farm purposes, is rule has only been sustained on invalid, when only a portion of the the ground that in cities and land abuts upon the improvement, large towns where population is Ryan v. Sumner, 17 Wash. 228, dense and lots are small, it is a 49 Pac. 487. fairly approximate and just meas- se Schaefer v. Werling, 188 U. ure of such benefits. In rural S. 516, 47 L. ed. 570, 23 Sup. neighborhoods and other places Ct. Rep. 449. In Loeb v. Trustees, such a rule is not applicable and etc., 179 U. S. 472, 45 L. ed. 280, cannot be constitutionally applied. 21 Sup. Ct. Rep. 174, the court McKeesport v. Soles, 165 Pa. St. held that the circuit court erred in 628, 30 Atl. 1019. holding the petition made a case ss New Whatcom v. Bellingham, within Norwood v. Baker, etc., Co., 16 Wash. 131, 47 Pac. st white v. Tacoma, 109 Fed. 236. 32. Where an assessment must be 473 § 503 THE LAW OF SPECIAL ASSESSMENTS. have an assessment made according to benefits.*® If the cost is to be assessed upon abutting property in proportion to frontage, by the number of front feet of the lots, it must be levied with equality and uniformity upon all the property assessed.*® 503. When a charter permits a street paving tax to be apportioned according to frontage, the designation of a tax- ing district by its street frontage is a compliance with the other charter requirement that the council shall " describe or designate the lots ®° and premises or locality to be assessed." And in case the charter makes it the duty of the board to determine the benefits derived by the owners from a street paving, and they make the apportionment according to the frontage of each lot upon the street, some being vacant, and others occupied by valuable buildings, and as in so determin- ing they acted judicially, their judgment as to the amount of benefit cannot be reviewed by the court, unless they acted ou an erroneous principle f^ and an apportionment in accordance with the number of feet front is not necessarily an erroneous principle.** Even in some of those states which resolutely 88 Indianapolis v. Holt, 165 Ind. are such as to show the impos- 222, 57 N. E. 966, 988, 1100. sibility of such facts. Kersten v. 88 People V. Lynch, 61 Cal. 15, Milwaukee, 106 Wis. 200, 48 L. 21 Am. Rep. 677; Jaeger v. Burr, R. A. 851, 81 N. W. 948, 1103. 36 Ohio St. 164. For a case where the statute Where the statute provides for requires that the assessment may an assessment according to bene- be according to the foot frontage, fits, in order to sustain a levy if the council shall find the bene- of special taxes according to the fits to be equal and uniform, see foot frontage of the lots in the Morse v. Omaha, 67 Neb. 426, 93 taxing district, it must aflSrmative- N. W. 734. ly appear from the record that the »« Kalamazoo v. Francoise, 115 board found that the benefits were Mich. 554, 73 N. W. 801. equal and uniform as to all the si O'Reilly v. Kingston, 114 N. parcels of land to be affected by Y. 439, 21 N. E. 1004. the proposed improvement. John Colorado. V. Connell, 64 Neb. 233, 89 N. W. Assessment a fair one. 806. »2 A charter provision that the ex- But this showing will not pre- pense of grading streets shall be vail where the physical conditions assessed upon all abutting lots in 474 JTJBISDICTION ■ ■ THE OBDINAUCE. § 503 reject the frontage assessment as being correct in principle, it is not infrequently given a tolerant reception and acknowl- edgment in practice, where the return or certificate shows the proportion to frontage, though ar- bitrary, does not contravene the law that assessments for local im- provements shall be in proportion to the benefits, because it appears to be a fair one, and where the rule works an injustice, relief may be granted. Denver v. Campbell, 33 Colo. 162, 80 Pac. 142. Illinois. When i» proportion to the bene- fits. In cases where the improvement is of such a character that the benefits may be expected to diffuse themselves along the line of the improvement, in a. degree bearing some proportion to the frontage, a division of the burthen by that standard may appropriately be adopted, although ordinarily the power to adopt this method is denied, unless sanctioned by ex- press legislative authority. Davis V. Litchfield, 145 111. 313, 21 L. R. A. 563, 33 N. E. 888. No violation of spirit of constitu- tion. An ordinance requiring the cost of improving a street to be as- sessed upon the real estate abut- ting thereon in proportion to the frontage, is not in violation of the spirit of the constitution. C. & A. R. Co. V. Joliet, 153 111. 649, 39 K. E. 1077. Maryland. Valid where ovmers have had no- tice. When all parties interested in the question of repaving a street at the expense of abutting owners have ample opportunity to con- test the passage of an ordinance authorizing such repaving, the ex- pense to be proportioned by the front-foot rule, the ordinance is not made invalid by adopting such rule. Mayor, etc., v. Stewart. 92 Md. 535, 48 Atl. 165. Missouri. Is appUeable to corner lot. The "front foot" rule of as- sessment for a street improvement is applicable to a corner lot as a basis of taxation, according to its frontage upon the improvement, regardless of the fact that the lot has a front upon another street which meets the improved one at a right angle. Moberly v. Hogan, 131 Mo. 19, 32 S. W. 1014. New Jersey. Principle not wrong where benefits properly distributed. The principle of frontage assess- ments is not necessarily wrong. If that mode properly distributes the benefits among the owners of property benefited, there can be no objection to its use. Jersey City V. Howeth, 30 N. J. L. 521 ; Pud- ney v. Passaic, 37 N. J. L. 65; State V. Rutherford, 55 N. J. L. 441, 27 Atl. 172; State v. Eliza- beth, 56 N. J. L. 119, 27 Atl. 801. The fact that in an assessment for a street improvement the ben- efits have been distributed along the line of the improvement, in proportion to the frontage, does not necessarily make the assess- ment void if that method properly 4Y5 § 504 THE LAW OF SPECIAL ASSESSMENTS. substantial justice of the tax thus levied, or that it was levied after taking into consideration the benefits in each case.** How frontage determined 504. The question of how a frontage tax is to be deter- mined under the front-foot rule seems at first blush to be too simple to require judicial pronouncement in order to go straight with certainty. But the way to this simple station, like that to all others where the principle of benefits is not used as a beacon light to guide the way, is beset with little traps and foot-falls, more annoying than serious. We are told that for the purpose of determining the frontage of a lot with a view to its assessment, reference must be had to its situation at the time the improvement is made, and not to apportions the benefits. Dooling V. Ocean City, 67 N. J. L. 215, 50 Atl. 621. Or lots of different depths. An assessment for benefits from street improvements based upon the frontage of the property on the line of the streets improved, and when the depth of the lots assessed is not in all cases uniform, is not erroneous unless it appears by the evidence that the benefits have not been fairly and justly assessed among those benefited thereby. Long Branch Commission v. Dob- bins, 61 N. J. L. 659, 40 Atl. 599. Note — The court quotes from the evidence of the commissioners sufficient to clearly establish the fact that there was a proper ex- ercise of judgment on their part, and then say : " I find in the record of this case no convincing proof that the assessment made by the commissioners is not just, and while there is conflicting evidence, there is a decided preponderance in the support of the report." Id. OMo. Reducing assessment to actual cost. Where an assessment is per front foot, and is based upon an estimate of the cost, and a certain number of fset frontage, and the cost of the work falls below such estimate, in reducing the assess- ment to the actual cost, and in fix- ing the cost per front foot, any part of the frontage subsequently appropriated for streets should not be deducted from the frontage ac- tually assessable when the street was ordered. Spangler v. Cleve- land, 35 Ohio St. 469. OS A street improvement assess- m.ent, otherwise lawful, is not ren- dered invalid because assessed in terms by the abutting foot, where it appears that it did not exceed the actual benefits to the land. Shoemaker v. Cincinnati, 68 Ohio St. 603, 68 N. E. 1; Schroder v. Overman, 61 Ohio St. 1, 47 L. R. A. 156, 76 Am. St. Rep. 354, 55 N. E. 158; Walsh v. Barron, 61 476 JUKISDICTIOIir ' THE OKDINAITCE. §§ 505, 506 changes subsequently made,®* but that the requirement of a statute that " each lot shall be charged in proportion to the frontage thereof " does not contemplate that the work in front of each lot shall be necessarily charged to that lot, but the amount of the whole work shall be ascertained, and each lot charged in the proportion that its frontage bears to that of all the lots.®^ Different amounts, upon different front feet, abutting upon different parts of the paving, may be levied, if a just proportion of the entire cost is assessed uniformly,*® is the rule laid down in one state, while its neighbor says the owner should be charged in the proportion which the front- age of his lot bears to that of all the lots affected by the con- tract, and not that which it bears to those in a block,®'' while yet another state says the front foot rule imposes on the re- spective owners their proportionate shares of the entire cost according to the width of the respective streets on which they abut,®* and yet another says the real front is a question of fact to be determined by the manner in which the street was laid out, or in which it has been built upon, and used and occupied by the owner.®® 505. Inasmuch as the entire rule is one of legislative derivation, it is probable the correct rule is to be found in the legislative authority for this method of apportionment, and in its absence, an application of the ordinary rules of judicial construction and interpretation should prove suffi- cient. Assessments valid under the front foot rule. 506. The fact that the abutting lots differ somewhat in depth and value does not of itself render the assessment on Ohio St. 15, 55 N. E. 164; Walsh 96 Gilcreat v. Macartney, 97 V. Sims, 65 Ohio St. 211, 62 N. E. Iowa, 138. 120. »' Weber v. Schergens, 59 Mo. o*Sandroek v. Columbus, 51 389; ISTeenan v. Smith, 60 Mo. 292. Ohio St. 317, 42 N. E. 255. os Savannah v. Weed, 96 Ga. 95 St. Louis V. Clemens, 49 Mo. 670, 23 S. E. 900. 552 ; Neenan v. Smith, 50 Mo. 99 Haviland v. Columbus, 50 525. Ohio St. 471, 34 N. E. 679. 47V § 506 THE LAW OF SPECIAL ASSESSMENTS. a front foot basis void for inequality ; ^ nor will an assessment purporting to have been made according to benefits, and found by the city council to be so made, be made invalid because all the lots were assessed alike.^ A city may assess the cost of pacing a street upon abutting property on the " foot front rule " without regard to the actual number of square yards in front of any particular property, and the fact that a street railway company has paved a portion of the street in front of a particular property, does not relieve the owner from assessment on a pro rata basis, ascertained by dividing the entire cost of the improvement in proportion to the entire number of feet of property fronting on the street* A find- ing by the board to the effect that in its judgment, the several lots and pieces of lots and real estate described are specially benefited to the full amount in each case of the proposed levies, is a sufficient, though informal, finding that the bene- fits are proportional to the frontage.* It will be presumed, where nothing appears to the contrary, that in adopting the assessment prepared by the city engineer, the council con- sidered it prima facie correct, and that the entire cost was apportioned among the abutting parcels according to the benefits received, and such assessment will be held valid when collaterally attacked.^ Whether or not the front foot rule of assessment for the cost of paving and curbing a street within the limits of a city, is legally applicable to abutting property claimed to be rural in character, depends upon the conditions which exist at the time the improvement is made, and not those existing at the time of the enactment of the ordinance authorizing the improvements.* 1 Beaximont v. Wilkesbarre, 142 s Scranton v. Koehler, 200 Pa. Pa. St. 198, 21 Atl. 888; Witman St. 126, 49 Atl. 792. V. Reading, 169 Pa. St. 375, 32 ■'Portsmouth Savings Bank v. Atl. 576. Omaha, 67 Neb. 50, 93 N. W. 231. 2 The improvement in question o Leeds v. Defrees, 157 Ind. 392, was the paving of a street that 61 N. E. 930. had already been brought to grade. « Keith v. Philadelphia, 126 Pa. Alexander v. Taeoma, 35 Wash. St. 575, 17 Atl. 883. 366, 77 Pac. 686. 478 JUBISDICTIOH' THE OEDINAJS^CE. § 507 Frontage assessments held invalid. 507. Where the principle of benefits is the definitely prescribed method of assessment, the courts are very rigid in protecting it against encroachment. While, as we have just seen, property similarly situated may be supposed to be simi- larly benefited, the presumption is quite to the contrary where the physical situation is such as to preclude the probability of equal results. The city charter of Milwaukee requires the board of public works to view the premises where the street is to be graded for the first time and " assess against the several lots or pieces of land, or parts of lots or pieces of land, which they may deem benefited by the proposed im- provement, the amount of such benefit which those lots or pieces of land will severally, in the opinion of said board, derive from such improvement when completed in the manner contemplated in the estimate of the cost of such work, taking into consideration in each case any injury which in the opinion of the board may result to each lot or piece of land from such improvement." For years, the board had followed a rule of its own, so manifestly in conflict with the provisions of the charter, that it is remarkable their assessments remained unchallenged for such a length of time. If the assessment district consisted, for example, of 3 blocks. When assessor's certificate con- Assessment for filling under side- trols. vmlk. Where, upon a reassessment for There is no valid objection change of grade, the certificate of against assessing the cost of flag- the assessing board states that ging sidewalks on the principle of each lot was viewed, and the bene- frontage, but, under such a power, fits and damages considered and the estimate must not include any determined, the fact that each lot part of the expense of the sub- of the same size is determined to etantial grading (excavation and have received the same benefit does filling) of that part of the street not overcome their certificate, es- occupied by the sidewalks. In- pecially when it appears that all cidental grading, for the mere pur- the lots were used and affected pose of flagging, may be included, substantially alike. Sanderson v. but not the substantial grading of Herman, 108 Wis. 662, 84 N. W. any part of the street, although 890, 85 N. W. 141. included in the sidewalks. State V. Jersey City, 37 N. J. L. 128. 479 § 508 THE LAW OF SPECIAL ASSESSMENTS. 1,000 feet in total length (excluding street intersections), upon the two sides of the street within the district would be approximately 2000 feet of abutting property to be as- sessed. If the estimated cost of the improvement was $5000, or $2.50 per front foot, the board would estimate the bene- fits at $3.00 or $3.50 per front foot, and allow no damages or injury whatsoever, although the grading in front of some lots would vary from a cut of 30 feet to a fill of 12 feet, cost- ing ten or fifteen times as much in front of some lots as com- pared with others. The Wisconsin court very properly and promptly held that such an assessment was arbitrary and void, an adoption by the board of an arbitrary front foot rule of its own, and in direct violation of the charter provisions.'' Where the whole expense of an assessment is laid upon the frontage of a street, at a uniform rate, without much regard to size, shape or depth of parcels of land, and without much regard to the situation, location or other circumstances, the principle of benefits is ignored, and the assessment is void, although on the face of the report purporting to be according to benefits.® 508. A city charter which authorizes the council to im- prove the streets at the cost of abutting owners, in proportion to frontage, is violative of sees. 17 and 19 of the Const, of Texas, and of the Fourteenth amendment of the Federal Con- stitution.® Under a statute providing that street improve- ment assessments shall be made upon the land fronting on the street improved, in " proportion to the benefits upon the property to be benefited, sufiicient to cover the total expense of the work to the center of the street on which it fronts," an 7 Plttelkow V. Milwaukee, 94 124 Wis. 153, 101 N. W. 930, 102 Wis. 651, 69 N. W. 803 ; Keraten N. W. 578. V. Milwaukee, 106 Wis. 200, 48 L. s N. Y. & G. L. R. Co. v. Kear- R. A. 85, 81 N. W. 948, 1103; ney, 55 N. J. L. 463, 26 Atl. 800; Friedrich v. Milwaukee, 114 Wis. Lieberman v. Milwaukee, 89 Wis. 304, 90 N. W. 174; Friedrich v. 336, 61 N. W. 1112. Milwaukee, 118 Wis. 254, 95 N. » Hutcheson v. Storrie, 92 Tex. W. 126; Haubner v. Milwaukee, 685, 45 L. 'E. A. 289, 71 Am. St. Rep. 884, 51 S. W. 848. 480 JUKISDICTION • THE ORDINAlirCE. § 508 assessment on the basis of lineal feet of frontage is invalid, and creates no lien for the cost of the work.^" And in Illi- nois it was early held, long before the adoption of the present constitution, that an assessment for improvements made on the basis of the frontage of the lots upon the streets to be improved, is invalid as containing neither the element of eqiiality or uniformity, if assessed under the taxing power; and if in the exercise of the right of eminent domain, is equally invalid, no compensation whatever being provided or even contemplated by the charter. ^^ lOElma V. Carney, 9 Wash. 466, 37 Pac. 707. 11 Chicago V. Lamed, 34 111. 203; Ottawa V. Spencer, 40 HI. 211; Bedard v. Hall, 44 111. 91; Wright V. Chicago, 46 111. 44. A charter provision for levying of a special tax on abutting lots in proportion to their front or size, does not authorize a special tax against each lot to defray the ex- pense of the work done in front thereof. State v. Portage, 12 Wis. 563. Although a special assessment based merely on frontage, and without regard to benefits actually conferred, is invalid, yet there is no rule of law precluding the board from taking into consideration the number of feet frontage of the several lots upon the street or im- provement as an element in making the assessment. Walker v. Auro- ra, 140 111. 402, 29 N. E. 741. Ordinance in question held to imply assessment by front foot rule, and hence invalid. City Council V. Foster, 133 Ala. 587, 597, 32 So. 610. Annual tax on water pipe by Uneal foot. An annual tax of ten cents per lineal foot on all water pipe in a city, whether principal mains or branch supply pipes, and whether the lot is improved or not, and ir- respective of its location, the tax being not for one year or any spec- ified time, but to be levied annual- ly, for all time, and paid over to water commissioners, but without specifying the use to which it is to be put, and making no pro- vision for a hearing as to benefit to property, or the equitable dis- tribution of the tax, was held to contravene the provisions of the fourteenth amendment to the fed- eral constitution, being a taking of private property under the guise of taxation, without just compen- sation, and without due process of law. The court rested its decision largely upon Norwood v. Baker. State V. Robert P. Lewis Co., 82 Minn. 390, 53 L. R. A. 421, 85 N. W. 207, 86 N. W. 611. But a reargument being granted, the court reversed its first opinion, up- on the authority of French v. Bar- ber Asphalt Paving Co., 181 U. S. 324, and because such reversal would give the parties an oppor- tunity to have their decision re- viewed by the federal court, if they 31 481 § 508 THE LAW OF SPECIAL ASSESSMEOSTTS. SO desired. State v. Robert P. Lewis Co., 82 Minn. 390, 53 L. R. A. 421, 85 N. W. 207, 86 N. W. 611. Affirmed in State v. Trus- tees, 87 Minn. 165, 91 N. W. 484. An annual tax to be paid for by special assessment possesses the element of novelty, at least. The following are some of the later decisions upholding the front foot rule of assessment: A resolution for a street im- provement adopted by a common council, payment to be made on the front-foot rule, is not neces- sarily invalid, where the tax-payers have an opportunity to appear, and insist that the apportionment shall be on the basis of benefits. Brown V. Central Bermudez Co., 162 Ind. 452, 69 N. E. 150. A statute is not unconstitution- al, as taking property for public use without due process of law, because it provides for the assess- ment of the cost of an improve- ment according to the front foot rule. Deane v. Indiana, etc., Co., 161 Ind. 371, 68 N. E. 686; Chad- wick V. Kelley, 187 U. S. 540. Where the benefits conferred by a new sewer are practically con- fined to the district in which it exists, and each abutting lot is specially benefited thereby, an as- sessment by the front foot is not inequitable. Shannon v. Omaha (Neb.), 103 N. W. 53. An assessment is not invalid be- cause made in terms by the abut- ting foot, instead of in terms ac- cording to benefits, where the rec- ord discloses that the assessment did not exceed the special benefit to the land. Shoemaker v. Cin- cinnati, 68 Ohio St. 603, 68 N. E. 1; Schroeder v. Overman, 61 Ohio St. 1, 47 L. R. A. 156, 76 Am. St. Rep. 354, 55 N. E. 158; Walsh v. Barron, 61 Ohio St. 15, 55 N. E. 164; Walsh v. Sims, 65 Ohio St. 211, 62 N. E. 120. 482 CHAPTEE IX. OF THE PEOCEEDIN'GfS NEICESSABY TO RETAIIT JITBISDICTIOM' THE ASSESSMENT. Commissioners — In general, 509. Appointment — Qualifications, 510-513. Oath of commissioners, 514. Judgment of commissioners, 515-516. Commissioners must act jointly — Signatures, 517. Death or absence of one com- missioner, 518. Objections to report of — When made, 519. Evidence, 520. Commissioners as witnesses, 521. View of premises by, 522. Presumptions as to acts of, 523. Estimate of cost, 524. What expenses may be included in, 525-526. What expenses may not be in- cluded in, 527-528. Exceeding tax limit, 529. Statute of limitations, 530. Suits to vacate assessments, 531. Validity of legislative bond act, 532. Limitation on power to exempt, 533. Plans and specifications, 534. Eminent domain, 535. Condemnation — Effects of, 536. What properly assessed, 537. Street intersections, 538. Description of property, 539-540. Assessing each parcel separately, 541. Omission of property from assess- ment, 542. Subdividing lands for assessment purposes, 543. Improvements must be single, 544- 545. Acquiring title, 546. Conditions precedent, 547. Assessment roll, 548-549. Against whom assessment to be made, 550. When assessment may be made, 551. Requisites in making assessment, 552. As a ministerial act, 553. Property in two assessment dis- tricts, 554. Assessment by size or area, 555. Assessment for cost of work, 556- 558. What assessment proceedings must show, 559. Sufficiency of record, 560-561. Conclusiveness of improvement bond, 562. Who may contest assessment, 563. When objections may be urged, 564-567. Evidence — In general, 568. Burden of proof, 569. Prima fade evidence, 570. Evidence as to benefits, 571. Method of assessment, 572-573. Amount of assessment — Modifi- cation, 574. 483 §§ 509, 510 XHE LAW OF SPECIAL ASSESSMENTS. Error and amendment, 575. Judicial notice, 676. Figures, abbreviations and names, 577. Omission of dollar mark, 578. Officers de facto, 679. Dedication, 580. Nuisance, 681. Commissioners — In general. 509. The entire procedure in the levy of special assess- ments being of purely statutory creation, it follows that the officer, board, or committee to make the assessment must be appointed or created in the manner provided by the Legis- lature. In cities of sufficient size, the board of public works is frequently vested with large powers in determining what improvements shall be made, as well as in making the ap- praisement, and it is clearly within the power of the legis- lature to declare what local officers shall ascertain and deter- mine the extent of the special benefits,* and it is no objection that the parties making the assessments for a public park are interested, where the law qualifies them to act.* They have no authority outside of the district for which they are spe- cially appointed, and under a statute authorizing special as- sessments by the " corporate authorities of the towns " for a park partly situate in two towns, an assessment made by the corporate authorities of the two towns acting together is void, the authorities in one having no voice in the assessment of the property in the other.' Appointment — Qualifications. 510. Where the requirements of the charter are that the assessment shall be made by three impartial commissioners to be appointed by the council, the city acquires no power to establish a board of commissioners of assessments to act in all cases, but they must be appointed for each specific case.* ISTor does the council acquire the authority to instruct the appraisers as to what shall govern them in making the assess- ment, as it is their judgment and not that of the council, which is to determine this.® 1 Crawford v. People, 82 111. 557. * State v. Hudson, 29 N. J. L. 2 People V. Brislin, 80 111. 423. 104. s Hundley v. Com'rs, 67 111. 559. b Steekert v. E. Saginaw, 22 Mich. 104. 484 MAKIITG TH£ ASSESSMEdSTT. § 511 511. The commissioners, or appraisers, appointed to as- sess damages, are quasi jurors, and should be free from all legal disability.* An assessment for opening a street will be set aside if one of the commissioners is a property owner and tax payer within the limits over lyhich the board of com- missioners has authority to act, where the statute creates the disqualification because of said ownership ; '' but the fact that one of them owned a lot located about 100 feet beyond the area of benefits as fixed by the board does not disqualify him as not being disinterested, so as to render the assessment for the improvement invalid, the statute providing the commis- sioners shall be resident freeholders of the municipality.* A commissioner is not disqualified because he is a trustee of a religious corporation owning premises liable to assessment for benefits,* nor is a special assessment made invalid because spread by a commissioner, appointed under a statute, who is not a member of the common council.^" If the charter require the commissioners to be possessed of certain qualifi- cations, it must appear upon the face of the proceedings that they are possessed of those qualifications.^* 6 E. I. & A. R. Co. V. Lynch, appointed by the president of its 23 111. 645. board of local improvements. Mel- In this case, one of the commis- rose Park V. Dunnebecke, 210 "111. sioners, after being agreed upon, 422, 71 N. E. 431; Sumner v. was found to be a stockholder in Milford, 214 III. 388, 73 N. E. the plaintiff road, and was held 742; Marshall v. Milford, Id. disqualified, and the report reject- " Vreeland v. Bayonne, 54 N. J. ed. L- 488, 24 Atl. 486; Bramhall v. T State V. Circuit Court, 64 N. Bayonne, 35 N. J. L. 476; State v. J. L. 536, 45 Atl. 981. Jersey City, 25 N. J. L. 315; State 8 State V. North Plainfield, 63 v. Newark, 25 N. J. L. 413 ; State N. J. L. 61, 42 Atl. 805. v. Newark, 36 N. J. L. 170; State » People v. Mayor, etc., 63 N. Y. v. Passaic, 38 N. J. L. 171. 29 1_ Where the statute requires that 10 Citizens', etc., Trust Co. v. the commissioners shall be " dis- Chicago, 215 111. 174, 74 N. E. interested free holders," the ordor 115; Lake v. Decatur, 91 HI. 596. of appointment must recite that In Illinois, the commissioner to fact, otherwise the proceedings are spread a special tax for a public defective. Brewer v. Elizabeth, 66 improvement in a village may be N. J. L. 547, 49 Atl. 480. 485 § 612 THE LAW OF SPECIAL ASSESSMENTS. 512. The assessment will not be invalidated by the mere clerical error of omitting a letter from the given name of one of the commissioners, in making the appointment/^ and the objection that John F. K. was appointed a commissioner, and the roll was signed J. F. K. is not well taken. ^* But a special assessment will not be confirmed where there is a sub- stantial difference in the names as signed to the affidavit, roll and oath.^* Where public officers are clothed with impor- tant powers, subject to but few effectual restraints, so that the rights of private property are almost at their mercy, it will be held that the acts of such officers must be free from the motives of special pecuniary interest, and courts shoiild open the way to a proper investigation of the sources of such improper motives. To do otherwise would be to encourage a prostitution of their powers to their own private ends by a judicial shield which should be applied to the protection of the oppressed. In such a case it is error for the court to re- fuse to permit the property owner to show that one of the commissioners making the assessment had a pecuniary inter- est in making it.-"* A contract between a city and an engi- neer by which he was to design and construct a system of waterworks, his compensation to be included in the assess- ment to be levied to pay for such construction, shows upon its Contra. Dunphy, as one commissioner, and The city council are primarily alternately James C. Hitchcock the judges of the competency of and Jonas C. Hitchcock, as another the persons to be appointed by commissioner, while the record them to make the estimate and as- showed the appointment of John sessment of the proposed improve- M. Dumphy and J. C. Hitchcock as ment, and the presumption is that commissioners, with another whose they performed their duty and name did not vary. Harrison v. were " competent persons." Walk- Chicago, 163 HI. 129, 44 N. E. 395. er V. Aurora, 140 111. 402, 29 N. is Hunt v. Chicago, 60 111. 183 ; E. 741. Shreve v. Cicero, 129 III. 226, 21 12 Brethold v. Wilmette, 168 111. N. E. 815 ; Chase v. Evanston, 172 162, 48 N. E. 38. 111. 403, 50 N. E. 241 ; Murr v. 13 People V. Lingle, 165 111. 65, Naperville, 210 111. 371, 71 N. E. 46 N. E. 10. 380. . 1* The signatures were John M. 486 MAKING THE ASSESSMENT. §'§ 513, 514 face that such engineer is disqualified from making " a true and impartial assessment." ^* Nor can a city officer act as a commissioner of assessment imder an ordinance providing for paying part by special assessment, when his compensation is in part a percentage on the amount so raised. ^^ 513. The ownership of property in a special assessment district usually disqualifies the owner from acting as com- missioner of appraisement, such ownership constituting an interest.^* But the fact that one of the commissioners ap- pointed to levy a special assessment was an employee of the agents of the owners of part of the property affected, is not such an interest as will work a disqualification.^® Under the Illinois Local Improvement Act, the commissioner is not disqualified from spreading the tax by reason of being a con- tractor for the improvement, as nothing he could do in spreading such assessment could increase the estimate of cost, upon which the assessment is based. ^" Oath of Commissioners. 514. Where the statute requires the appraisers to take an oath before entering upon their duties, the provision is im- perative, and an omission to comply invalidates the assess- ment.^^ But the failure of commissioners appointed under a statute to examine contracts as to fraud, to take the pre- scribed oath, does not affect the validity of their acts in certifying that a contract is free from fraud, they having been appointed by competent authority, having exercised leMurr v. Naperville, 210 111. v. Highland Park, 132 Mich. 152, 371, 71 N. E. 380. 93 N. W. 254, 610, 95 N. W. 416. 17 Chase v. Evanston, 172 111. lo Pearce v. Hyde Park, 126 111. 403, 50 N. E. 241. 287, 18 N. E. 824. 18 Shreve v. Cicero, 129 111. 226, 20 Betts v. Naperville, 214 111. 21 N. E. 815. 380, 73 N. E. 752, overruling, Under a statute providing that Murr v. Naperville, 210 111. 371, no public improvement be or- 71 N. E. 380. dered except by a vote of two- 21 Wheeler v. Chicago, 57 111. thirds of the trustees, ownership 415; Union Building Ass'n v. of land in the assessment district Chicago, 61 111. 439. is not a disqualification. Corliss 487 § 514 THE LAW OF SPECIAL ASSESSMENTS. their functions without question, and being at least de facto oflBcers, and it is no answer to the validity of their action that it could result in private property being taken for as- sessments.^^ In practice, however, there is no such publicity attending the appointment of appraisers as apparently to warrant the application of the rule as to de facto officers, and it is certainly safer to require the oath to be taken as pro- vided by statute, as it undoubtedly is a requisite to the exercise of the jurisdiction conferred. Where commission- era of appraisement take the statutory oath before the or- dinance providing for the assessment becomes operative, it is not an irregularity that will vitiate subsequent proceedings,** and it is no objection to the validity of the proceedings that the commissioners took the oath required by the charter, adding thereto other clauses not inconsistent therewith.** A notary public who is a superintendent of the assessment de- partment of a city, is not disqualified to administer the oath to the commissioners.*' When once duly sworn, it will be unnecessary for them to be re-sworn before re-casting their roll pursuant to a subsequent order of court. *^ The lot owner cannot impeach the assessment, in a collateral pro- ceeding, because the commissioners of assessment did not 22 In re Kendall, 85 N. Y. 302. If the oath of a commissioner Commissioners appointed by a be substantially correct, it is suffi- common council to appraise dam- cient. State v. Jersey City, 24 ages in laying out streets are pub- N. J. L. 662. lie officers, and although it may 25 McChesney v. Chicago, 159 not appear that they were free 111. 223, 42 N. E. 894. holders or were sworn as required 20 Schemick v. Chicago, 151 111. by charter, yet they are officers 336, 37 N. E. 888. de facto and their acts are valid When the commissioners are as between the city and a party properly sworn at the proper whose land has been taken for a time, and their report is returned public street. Trinity College v.. for a reappraisal, their proceed- Hartford, 32 Conn. 452. ings are valid without a new oath. 23 Gurnee v. Chicago, 40 111. Low v. Galena & C. U. R. Co., 18 165. 111. 324. 24 Rich V. Chicago, 59 111. 286. 488 MAKING THE ASSESSMENT. § 515 take the statutory oath, nor after application for confirm- ation.^^ Judgment of Commissioners. 515. The determination of the assessing board as to "what property is benefited, and the extent of such benefit, when made in accordance with statutory requirements, is conclusive, in the absence of fraud or mistake. But a de- termination, although honestly made, upon a rule of assess- ment other than that prescribed by statute, as upon a rule of frontage merely, is not valid.** It is equally true that de- 27 Walker v. People, 169 111. 473, 48 N. E. 694. An objection that the oath ad- ministered to the commissioners was defective, must be made at the time of application for con- firmation, and will be too late on application for judgment of sale. Walker v. People, 170 111. 410, 48 N. E. 1010. 28 Walters v. Lake, 129 111. 23, 21 N. E. 556; Latham v. Wil- mette, 168 111. 153, 48 N. E. 311; State V. District Court, 29 Minn. 62, 11 K W. 133; State v. Bis- trict Court, 33 Minn. 295, 23 N. W. 222. The judgment of commis- sioners of assessment on matters of fact within their lawful cog- nizance will not be reversed ex- cept upon clear proof that it is erroneous. State v. Passaic, 44 N. J. L. 171. The judgment of the commis- sioners as to the amount of bene- fits received by the property own- ers from a local improvement, is conclusive unless clearly shown to be erroneous. State v. Plain- field, 63 N. J. L. 61, 42 Atl. 805. " Whether particular property is benefited, and to what extent it is benefited, must be left to the judgment of those whose duty it is to make the assessment, and that, when they have exercised their judgment, their determina- tion, in the absence of fraud or demonstrable mistake of fact, is conclusive. But they must exer- cise their judgment, and if it ap- pears they have not done so, but have substituted an arbitrary, in- flexible rule instead of their judg- ment, their work cannot stand." State V. Judges of District Court, 51 Minn. 539, 53 N. W. 800, 55 N. W. 122, by GilfiUan, C. J. The determination of the com- missioners as to what property is benefited, is committed to the judgment of the commissioners, which must stand unless im- peached for fraud. Wright v. Chicago, 48 111. 287; Elliott v. Chicago, 48 111. 293; Lawrence v. Chicago, 48 111. 292. This refers only to a case where the limits of the taxing district are to be determined by the actual benefits conferred. Collateral Proceedings. In a collateral proceeding, it is 489 § 516 THE LAW OF SPECIAX, ASSESSMElfTS. termination of the commissioners of assessment as to the proportionate amoimts of the cost of an improvement to be borne respectively by the city and the property owners, is final. The fact that the city's share is fixed at " no dollars," does not show that the improvement is not a public one such as might be made by special assessments.^^ The judgment to be exercised is that of the commissioners solely, and a grading and paving assessment is fatally defective when the viewers do not, in their estimate of damages, exercise their judgment on the value of the work done, but base it upon the certificate of a local oflScer.** 516. It is a general rule that the report of commission- ers duly appointed to make a special assessment, is prima facie evidence of its validity, and will, unless shown to be not competent to show errors of judgment by the assessment com- missioners in determining benefits. In such a proceeding, the determi- nation is conclusive, in the ab- sence of fraud. People v. Hagar, 52 Cal. 171. Difference of Opinion as to Amount. An assessment will not be mod- ified, altered, annulled or recast merely because there is a differ- ence of opinion as to whether the commissioner exercised sound judgment in spreading it, unless his action was so improper as to amount to fraud. Betts v. Naper- ville, 214 111. 380, 73 N. E. 752. Must exercise their own Judg- ment. Under a charter limiting an as- sessment to the benefits actually accruing, the commissioners must exercise their own judgment in fixing the assessment district, and their action will be illegal if they merely follow the instructions given them by some other cor- porate authority. Sinclaire v. West Hoboken, 58 N. J. L. 129, 32 Atl. 65. 29 Gait V. Chicago, 174 111. 605, 51 N. E. 053. soMorewood Ave, 159 Pa. St. 20, 28 Atl. 123, 132; Ferguson's Appeal, 159 Pa. St. 39, 28 Atl. 130; Omega Street, 125 Pa. St. 129, 25 Atl. 528; Shiloh Street, 152 Pa. St. 136, 25 Atl. 530. Under a law limiting assess- ments to one-half of the value of the lot assessed, the statement of the commissioners of estate that such limit was in no case ex- ceeded, together with a tabular statement of the specific assess- ments, is a sufficient compliance with the statute. In re Mayor, &c., 178 N. Y. 421, 70 N. E. 924. Respondeat superior. In directing the construction of free gravel roads and levying as- sessments to pay therefor, the board of commissioners is not the agent of the county, and the 490 MAKING THE ASSESSMENT. § 516 incorrect or invalid, be accepted as conclusive. ^^ And like the appointment, the report of the commissioners must show on its face, a compliance with all legal rules, the observance of which is necessary to make a valid assessment, and give the proper tribunal authority to confirm the same.*^ Where the board report that they were directed by ordinance " to make a just and equitable assessment of the expense " among the owners, etc., " in proportion to the advantage which each shall be deemed to acquire," and then declared they had " made a just and equitable assessment thereof," an objection that the assessment is void because of the failure to state in the report that the assessors had assessed those benefited, and in proportion to benefit, is untenable. There being no allegation that the legal rule was varied, the assess- ment will not be held void for the absence from the report of a form of words.*^ When property is legally subject to maxim respondeat superior cannot apply in any form. Commis- sioners V. FuUen, 111 Ind. 410, 12 N. E. 298. 31 Chicago E. I. & P. R. Co. V. Chicago, 139 111. 573, 28 N. E. 1108. 32 Moore v. Mattoon, 163 III. 622, 45 N. E. 567. " The foregoing was a case where only two commissioners signed. State V. New Brunswick, 38 N. J. L. 190, 20 Am. Eep. 380. 3s/ra re Roberts, 81 N. Y. 62. A report of the assessment board, stating the amount of dam- ages and compensation as to each piece of land taken or injured, and that they "then assessed the amount of such compensation and damages, so awarded, upon the land and property benefited by such proposed improvement, as- sessing the same upon the several parcels in proportion to the bene- fits which each parcel will re- ceive from such improvement, con- formably to the rules laid down in said city charter in that behalf, and that schedule B, herewith at- tached and made a part of this report, is our assessment list,'' shows that they assessed the bene- fits on all the property benefited. Cook V. Slocumj 27 Minn. 509, 8 N. W. 755. Power of Counsel on disapproved. Where the charter requires the appointment by the council pf three commissioners to estimate the cost and also appraise dam- ages, and after the return of the latter to the commissioners with the disapproval of the coun- cil, and the commissioners refuse to change their estimate, the coun- cil is without power to discharge such commissioners and appoint three others in their place. State V. Passaic, 41 N. J. L. 90. 491 § 517 THE LAW OF SPECIAL ASSESSMENTS. assessment, and the proceedings of the commissioners are regular, the report is conclusive, in the absence of other proof, of the fact of benefit actually received, and of its amount and value, but wh^re the statute so requires, the report must show affirmatively that a just and equitable assessment has been made.^* The commissioner's report is prima facie evidence of the justice of the assessment; and the fact that they assessed against each lot the exact cost of the improvement in front thereof, will not vitiate the as- sessment where it appears that they determined that the benefit to each lot was equal to the improvement in front thereof.*® Their report is conclusive as to the relative pro- portion of cost to be borne between the municipality and the property owners.** Where the only defect in assessment proceedings is the failure to give proper notice for con- firmation, the report may be adopted in a new proceeding, by a proper reference, to be made as nearly as may be in the manner prescribed for a first assessment.*'' Commissioners must act jointly — Signatures. 517. Where the statute requires a certain thing to be done by the commissioners, whether taking the oath, exam- ining the locality, assessing benefits, certifying the roll, 84 state V. Jersey City, 42 N. ings of said ordinance attached," J. L. 97 ; Hendrickson v. Pt. the latter being silent as to draw- Pleasant, 65 N. J. L. 535, 47 AtL ings, will not be taken as a show- 465. ing that the commissioners dis- ss Springfield v. Sale, 127 111. regarded the ordinance and acted 359, 20 N. E. 86; Peyton v. Mor- upon drawings, there being no gan Park, 172 111. 102, 49 N. E. evidence that such drawings ever 1003. existed. Barber v. Chicago, 152 36 Billings V. Chicago, 167 111. 111. 37, 38 N. E. 253. 337, 47 N. E. 731. Amendment of report. 37 Burton v. Chicago, 62 111. The report of assessment com- 179. missioners to the city council can- Error in report. not be amended after judgment The fact that commissioners and at a subsequent term. Hen- appointed to make an estimate re- kel v. Mattoon, 170 111. 316, 48 ported that the work was to be N. E. 908. done " conformably to the draw- 492 MAKING THE ASSESSMENT. § 518 signing notices or making a report, they must act jointly, and all sign the requisite documents, or jurisdiction is not acquired.^* — — Death or absence of one Commissioner. 518. Where one of three commissioners appointed to ascertain and assess damages for lands taken for a street, dies after the award of damages and before the assessment, the power tO' make such assessment vests in and should be exercised by the two surviving commissioners, there being no provision for filling the vacancy.^* But an objection that an assessment was illegal because made up and notice published by three of the assessors instead of the full board can not be successfully maintained where there is no proof that all four were not present at the assessment, or that the fourth did not have notice of the meeting, or that a vacancy, which had been occasioned by the death of one of the as- sessors, had been filled at the time of the assessment.*" In 38 McChesney v. People, 148 111 221, 35 N. E. 739; Boynton v. People, 155 111. 66, 39 N. E. 622. The action of only two commis- sioners cannot be sustained. Ad- cock V. Chicago, 160 111. 611, 43 N. E. 589. The report of commissioners of assessment must be signed by per- sons making it, and a report not signed or authenticated by the signature of such commissioners is not a compliance with the statute. Hinkel v. Mattoon, 170 111. 316, 48 N. E. 908. Commissioners who are ap- pointed to estimate the cost of an improvement must act jointly; and a special assessment is in- valid when it appears their report was signed by two only, of the three commissioners, and by a third person not authorized to act. Markley v. Chicago, 170 111. 358, 48 N. E. 952. The certificate of the commis- sioners of assessment should show that they acted jointly, and where only two sign, no presumption is created that the third acted, the certificate being silent on that point. Larson v. Chicago, 172 111. 298, 50 N. E. 179. An estimate of cost signed by only 1 out of 3 appointed com- missioners, and two strangers, is void where there is nothing to show a regular appointment of the latter in place of the two com- missioners who did not sign. Murphy v. Chicago, 186 III. 59, 57 2Sr. E. 847. s» People V. Mayor, &c., 63 N. Y. 291. *oln re Merriam. 84 N. Y. 596. 493 § 519 THE LAW OF SPECIAL ASSESSMETTTS. case an assessment board is duly appointed to view and assess swamp lands, and the assessment made by them is void because only two of the three members were present, the appointing power is without authority to appoint a new board to make a further assessment, or direct the old board to do so.*^ Objections to report of — When made, 519. A judgment of confirmation entered by default cannot be collaterally attacked in a proceeding for the sale of the property because only two commissioners signed the assessment roll, but it may be attacked in a direct proceeding to review a judgment of confirmation.*^ The objection that *i Harris v. Supervisors Colusa Co., 49 Cal. 662. Assessment by unauthorized per- son. Where an assessment is re- quired by law to be levied by a certain officer, and his office be- comes extinct with the expiration of the city's charter, a subse- quent assessment by an unauthor- ized official is invalid. Walker v. Dist. of Col., 6 Mackey, 352. Commissioners all present — agree- ment iy majority only. Where all the commissioners are present and consulting, it is competent for the majority to de- termine upon the estimate to be reported, and their report being evidence of their action should show that all were present, and whether their action was unani- mous or otherwise. Hinkel v. Mattoon, 170 111. 316, 48 N. E. 908. Recommendation by board — when insufficient. Where the statute requires a recommendation by a board of three commissioners, the mayor and city engineer before a street improvement can be proceeded with, and the mayor, engineer and one commissioner met for the purpose of considering the matter, a report in favor of the improvement made by the mayor and engineer only, does not confer jurisdiction to proceed, as the re- port should be made and con- curred in by a majority of the five members of the board. Brophy v. Laudman, 28 Ohio St. 542. Action of majority of board. In Michigan the action of a ma- jority of a board of equalization and review in making a street im- provement assessment is legal^ if all members were notified of the meeting. Cuming v. Grand Rap- ids, 46 Mich. 150, 9 N. W. 141. *2 Larson v. People, 170 111. 93, 48 N. E. 443; Hinkel v. Mattoon, 170 111. 316, 48 N. E. 908. Impeaching Commissioners' Re- port. A party whose property is as- 494 MAKING THE ASSESSMENT. §§ 520, 521 only two of the three special assessment commissioners acted in. making the estimate and signed the report, will not be entertained on application for judgment of sale, where the other proceedings are sufficient to give the court jurisdic- tion to enter the judgment of confirmation.** Evidence. 520. The records of the assessing hoard, although made by statute prima facie evidence of the facts stated therein, are not conclusive evidence of the proceedings, and the facts may be shovni by other evidence. Since the record is not conclusive as evidence, it does not conclude either party.** Where the statute authorizes an appeal to the County Court by one who is aggrieved by an assessment, and it appears on such hearing that the rule of apportion- ment adopted was erroneous, the Court is not concluded by the return of the commissioners, or the testimony of one of them as to what rule of apportionment was adopted, but the question is an open one to be determined on the evi- dence.*® And it is error to refuse to accept competent evidence to show that the commissioners appointed in a street opening proceeding had prejudged complainant's case, and declared proofs would be useless.** — — Commissioners as witnesses. 521. Commissioners appointed to make a special assess- ment cannot be called as witnesses to impeach their report sessed may possibly have his as- I. & P. R. Co. v. Chicago, 139 111. sessment reduced by showing that 573., 28 N. E. 1108. other property which has not been *3 People v. Markey, 166 111. 48, assessed is, in fact, benefited, and 46 N. E. 742; McChesney v. Peo- the extent of such benefit. The pie, 148 111. 221, 35 N. E. 739; report cannot be impeached Boynton v. People, 155 111. 66, dis- merely by showing that contigu- tinguished, 39 N. E. 622. ous property has not been as- " State v. District Court, 29 sessed, but it must be established Minn 62, 11 N. W. 133. by evidence that such other prop- *5 People v. County Court, 55 erty will be actually benefited, N. Y. 604. and the amount thereof. C. R. *3Cole v. Peoria, 18 111. 301. 495 § 522 THE LAW OF SPECIAL ASSESSMENTS. by showing that they failed to discharge their duties, after such report has been acted upon and approved by the proper authorities, or to inculpate themselves, or show rea- sons for their actions, or stultify themselves.*^ Their dec- larations, and that of their clerk, as to the manner in which an assessment was made, are inadmissible, being merely hearsay,** while their certificate that the requisite number of proprietors have assented to a paving is not conclusive on the question of assent, but has merely a prima facie effect.** — — View of premises by. 522. The commissioners must examine the work and property assessed in person, and exercise their own judg- ment. It is not suffiicent that they sign an estimate and report made by third persons.®** Where the statute requires the assessment to be made upon actual view, compliance therewith must appear upon the record,"^ but it seems such report is not conclusive, but is subject to collateral attack. ** The requirement that they go in person jointly to view the premises is met by their going together upon the land, tra- versing it in various directions, and from different points of observation obtain a view of the whole land, but this joint view and assessment is essential to the validity of the assess- ment, where required by city charter or general statute." 47 Wright V. Chicago, 48 111. purpose of levying a special tax 285; Jenks v. Chicago, 48 111. on swamp lands, are required by 296; Quick v. River Forest, 130 such statute to jointly view and 111. 323, 22 N. E. 816; Brethold assess the land, in their report V. Wilmette, 168 111. 162, 48 N. state that they have joihtly E. 38. viewed and assessed the land, *8 Hue V. Chicago, 66 111. 256. when in fact they have not, the *9 Henderson v. Mayor, &c., 8 report is not conclusive of the Md. 352. question, nor even prima facie evi- 00 State V. Jersey City, 24 N. J. dence thereof unless required by L. 662. statute, and may be attacked in 51 Marsh v. Supervisors, 42 a collateral action to recover the Wis. 502. tax. People v. Hagar, 49 Cal. 62 When a board of commis- 229. Bioners created by statute for the 63 People v. Hagar, 49 Cal. 229; 496 MAKING THE ASSESSMENT. § 523 It has been held, in an action at law under a city charter for damages caused by the change of an established grade, that where a view of the premises is impracticable, a photograph properly identified as being as perfect as could be, is proper evidence to show the location and surroundings of the prem- ises and improvements, and aid the jury in determining how they were affected by the change made in the grade of the street®* Presumptions as to acts of. 523. It has been held that the presumption is that the assessing board has exercised its proper judgment, in mak- ing an assessment^ and that this presumption is final and conclusive, in the absence of fraud, unless it appears the board applied an illegal principle, or the record demonstrates a mistake of fact, of an affirmative nature, and to the con- trary.^® As stated, the exceptions emasculate the vitality of the rule, and leave but little more of it than a statement that it is presumed public officers do their duty, unless the contrary appears. In a quite recent case, the report of the board of public works, who were charged by defendant's charter with the duty of making the assessment, showed by its recitals that the requirements of the charter were fol- lowed as to viewing the premises and determining both the damages and the benefits to the plaintiff's property by the grading of the street. It was the conclusion of the court that, while such a report, made in due form, prima facie establishes all the facts required to sustain the validity of that report, yet evidence aliunde j showing that the conclu- sion of the board could not reasonably have been arrived at People V. Hagar, 52 Cal. 171; pare Davis v. Saginaw, 87 Mich. Johnson v. Milwaukee, 40 Wis. 439. 315; Watkins v. Zwietuseh, 47 b4 Church v. Milwaukee, 31 Wis. 515, 3 N. W. 35; Watkins v. Wis. 512. Milwaukee, 52 Wis. 98, 8 N. W. os State v. District Court, 80 823; Pittlekow v. Milwaukee, 94 Minn. 293, 83 N. W. 183; Allen Wis. 651, 69 N. W. 803; But com- v. Chicago, 176 111. 113, 52 N. E. 33. 32 497 § 523 THE LAW OF SPECIAI, ASSESSMENTS. by the exercise of judgment, is sufficient to overcome such evidence and call for a decision that the assessment was void, in the absence of independent proof to the contrary.*® 58 Friedrich v. Milwaukee, 118 Wis. 254, 95 N. W. 126. This was a very unusual case. The assessment district consisted of one block only, about 315 feet long, the grading on which varied from almost nothing to about 30 feet. The evidence showed the various 30 foot front lots were worth from $10 to $20 u foot be- fore the improvement. The evi- dence of plaintiff's witnesses was that the property was worthless after the improvement, and plain- tiff permitted his property to go at foreclosure sale. Defendant's witnesses testified the lots were worth from $100 to $150 each after the improvement, while the board of public works assessed each lot with benefits of $300, and found no damages. It is not to be wondered at that a court of equity would find that the board could not have exercised their judgment in the case. The proportion of tax imposed on the right of way will be pre- sumed correct. C. R. I. & P. R. Co. V. Moline, 158 111. 64, 41 N". E. 877. Miscellaneous Decisions as to Pow- ers and Duties of Commissioners — cannot estimate for part of Improvement. Commissioners of assessment have no power to omit from their estimate a part of the work or improvement provided by the ordi- nance because of insufiScient de- scription. Illinois Central R. R. Co. V. Effingham, 172 111. 607, 50 N. E. 103. Clerical Error. Where an assessment roll is re- cast by order of the court, the in- sertion of " Gteorge " instead of " John," before the name of one of the commissioners named in such order, will not vitiate the roll. Schemick v. Chicago, 151 111. 336, 37 N. E. 888. Fixing Prices — Forestalling Com- petition. Where the specifications for pub- lic work provide that the prices for " rock excavation and founda- tion planks " are fixed by the com- missioner of public works, and so withdrawn from competition con- trary to charter provisions, the assessment to pay for the im- provement is invalid. In re Met- ropolitan Gas L. Co., 85 N. Y. 526; In re Pelton, 85 N. Y. 651; In re Merriam, 84 N. Y. 596. Power of Park Commissioners. A statute authorizing park boards to make assessments " for the purpose of improving any boulevard, highway, driveway, or street," confers no power to levy an assessment for sewer and water mains intended to supply sewer and water service to residents on a boulevard. N. Chi. Park Comrs. V. Baldwin, 62 111. 87, 44 N. E. 404. Sessions of Board — Recess. Where the statute requires a board to remain in session from 9 a. m. to 6 p. m., and after re- 498 MAKING THE ASSESSMENT. § 524 Estimate of cost. 524. In order that all parties may be advised of the ex- tent of a proposed public improvement, it is customary to require some board or officer to prepare an estimate of the supposed cost, and to file or advertise the same. They are usually based upon plans or specifications, also publicly ex- posed, and when these requirements are prescribed by stat- maining in session only a part of are had before the persons acting the day, a recess was taken, and no meeting was held for 30 days thereafter, a special tax depend- ing on such proceedings is void. John V. Connell, 64 Neb. 233, 89 N. W. 806. Same — Same The fact that a city council act- ing as a board of equalization at a meeting regularly called and held to review certain special as- sessments, takes a recess before the entire time prescribed by stat- ute for their sitting shall have ex- pired, does not invalidate the as- sessment if the city clerk or some member of the board be present during the entire time to receive complaints, and give information, and final action is not taken ex- cept by the majority in open ses- sion. John V. Connell, 64 Neb. 233, 98 N. W. 457, distinguishing Medland v. Linton, 60 Neb. 249, 82 N. W. 866. Approval of Improvement Board. A special assessment cannot be successfully resisted by showing that the details of the plan have not been approved by the Board of Public Works. Richards v. Cincinnati, 31 Ohio St. 506. Legality of Board — Bow ques- tioned. Where all the customary pro- ceedings for a public improvement as the board of commissioners, no question of the legality of the organization of that board or its existence can be raised in proceed- ings objecting to the assessment. That must be done by quo war- ranto. Betts V. Naperville, 214 111. 380, 73 N. E. 752. Reference to Commissioners. Where the charter requires that an improvement ordinance be re- ferred to the commissioners of as- sessments and a city surveyor not interested in the improvement, a reference to the commissioners only is irregular. State v. Bayonne, 49 N. J. L. 311, 8 Atl. 295. Cannot assess street not named in order. Commissioners have no author- ity to assess the cost of improving a street not named in the order appointing them. Ferris v. Chi- cago, 162 111., Ill, 44 N. E. 436. Proof of Notice. Where an ordinance, passed un- der statutory authority, prescribes the form and kind of notice of assessment, and required the com- missioners to attach to the assess- ment roll an affidavit of the giving of such notice, such affidavit is re- ceivable in evidence to prove the posting of notices of the meetings of the commissioners. Groodrich V. Minonk, 62 III. 121. 499 § 525 THE LAW OF SPECIAL ASSESSMENTS. ute, they are mandatory, and an omission to make and file such estimate, plans or specifications will avoid the assess- ment based thereon.^' What expenses may be included in. 525. It is not always a simple matter to determine what items may be included. It is fundamental that only those which are included in the actual cost constitute the limitation upon the list, and then only to the extent to which they 06 Thomason v. Ruggles, 69 Cal. 465, 11 Pac. 20; Gafney v. San Francisco, 72 Cal. 146, 13 Pac. 467; Workman v. Chicago, 61 111. 463 ; Goodwillie v. Lake View, 137 111. 51, 27 N. E. 15; Gilmore v. Hentig, 33 Kan. 156, 5 Pac. 781; Olsson V. Topeka, 42 Kan. 709, 21 Pac. 219; Wdler v. St. Paul, 5 Minn. 95, Gil. 70; Anderson v. Passaic, 44 N. J. L. 580; Kelley v. Cleveland, 34 O. St. 468; Frosh v. Galveston, 73 Tex. 401, 11 S. W. 402; Myrick v. La Crosse, 17 Wis. 443; Kneeland v. Milwaukee, 18 Wis. 412; Wells v. Burnham, 20 Wis. 113. When Court without Jurisdiction. Where no public hearing is held, and no estimate of cost made by the engineer, as required by stat- ute, the invalidity of the ordi- nance is established, and the court without jurisdiction to entertain the proceeding. Clark v. Chicago, 185 111. 354, 57 N. E. 15. Defects not Jurisdictional. The jurisdiction of the common council to order work is not af- fected by the defects of the speci- fications prepared by the engineer if they complied with the essen- tial condition that they be ac- companied by an estimate of cost definitely determining the amount. Haughawout v. Hubbard, 131 Cal. 675, 63 Pac. 1078. Strict Compliance icith Require- ments for. Under a charter providing that " whenever the common council shall determine to make any pub- lic improvement, as authorized by this chapter, they shall cause to be made an estimate of the whole expense thereof, and of the amount to be charged to each lot and par- cel of land, and, in case of grad- ing, of the number of cubic yards to be filled in or excavated in front of each lot; . . . and such estimate shall be filed in the office of the city clerk, for the in- spection of the parties interested, before such work shall be ordered to be done," — but the council or- dered a street to be graded in front of a lot without any esti- mate being made or filed, it had no jurisdiction to make the im- provement at the lot owner's ex- pense; and where the lot has been sold to pay for such improvement, the sale certificate will be can- celed, and the issue of a deed thereon restrained. Pound v. Su- pervisors, 43 Wis. 63; Massing v. Ames, 37 Wis. 645. 500 MAKIWG THE ASSESSMENT, 525 contribute to the benefit resulting to the district by the pro- posed improvement. These are usually matters of legisla- tive discretion, with which the courts are reluctant to inter- fere, and then only to the extent of the limitation stated.^^ Thus where a city charter provided for an assessment of abutting property for highway improvements only to the extent to which it was actually benefited, an assessment which rests solely upon the estimated cost of the improve- ment, and not upon a consideration or estimate of actual benefits, is invalid.^* And none of the costs of the proceed- ing can be added unless the statute expressly grants the power.^® The cost of engineering, surveying and superin- tendence may properly be included among the incidental expenses.®" Where such surveying is performed by a city engineer or his assistants, who are under fixed salaries paid by the city and for a definite time, the reasonable cost of 57 Farr v. West Chicago Park Com'rs, 167 111. 355, 46 N. B. 893; Brown v. Pitchburg, 128 Mass. 282; Sears v. Street Com'rs, 173 Mass. 350, 53 N. E. 876; Smith V. Portland, 25 Ore. 297, 35 Pac. 665. B8 Johnson v. Milwaukee, 40 Wis. 315. 59 Morris v. Chicago, 11 111. 650; Canal Trustees, &c. v. Chi- cago, 12 111. 403. 80 McDonald v. ConniflF, 99 Cal. 386; Gibson v. Chicago, 22 111. 566; Atchison v. Price, 45 Kan. 296, 25 Pac. 605; Dashiell v. Mayor, &c., 45 Md. 615; Beniteau V. Detroit, 41 Mich. 116, 1 N. W. 899; Cuming v. Grand Rapids, 46 Mich. 150, 9 N. W. 141; St. Paul V. Mullen, 27 Minn. 78, 6 N. W. 424 ; In re Lowden, 89 N. Y. 548 ; In re Johnson, 103 N. Y. 260, 8 N. E. 399; Longworth v. Cincin- nati, 34 0. St. 101. Not Double Taxation. Under the express provisions of a, city charter authorizing the col- lection of a percentage to cover expenses of making surveys, plans, specifications and superintend- ence, the actual expenses of such items were included in local as- sessment. The assessment was not thereby rendered illegal, as involv- ing double taxation, because the amount thus collected went into a special revolving fund used for convenience in making local im- provements and largely supported by local assessments, while the ac- tual expenses of these items were in fact defrayed out of another fund supported exclusively by gen- eral taxation. Property owners paid no more than they should have paid and enjoyed the use and benefit of the accumulation in the revolving fund. Burns v. Duluth (Minn.), 104 N. W. 714. 501 § 526 THE LAW OF SPECIAL ASSESSMElfTS. such surveying cannot be ascertained and assessed upon the abutting property as a necessary expenditure.*^ But, if a superintendent of such improvement be necessary aad one is specially employed by the city for that special improve- ment, the amount paid by the city for his service is a proper item to be included in the assessment*'* 526. Among other items properly chargeable are adver- tising and printing;*^ a retaining wall made necessary for the proper protection of the street;** legal expenses in mak- ing searches and procuring releases,*^ and an attorney's fee in the foreclosure of an assessment lien, it being in the na- ture of a penalty for delay ;** the compensation of appraisers for assessing damages f incidental expenses, and the cost of purchasing, erecting and maintaining a pump in a reclama- tion district;** commissions and expense of collection and disbursement;*® the cost of lateral and cross drain pipes 81 Longworth v. Cincinnati, su- 101. See Lipps v. Philadelphia, pra; Board v. Fullen, 118 Ind. 158, 20 N. E. 771; Contra, Gibson V. Chicago, supra; and see, People V. Kingston, 39 App. Div. 80, 56 N. Y. Supp. 606. «2 Longworth v. Cincinnati, »tt- pra. «3 Dashiell v. Mayor, &c, 45 Md. 615; Beniteau v, Detroit, 41 Mich. 116, 1 N. W. 899; Cuming V. Grand Rapids, 46 Mich. 150, 9 N. W. 141; St. Paul v. Mullen, 27 Minn. 78, 6 N. W. 242. 61 In making a street improve- ment the expense of building » wall which is necessary for the proper protection of the street, and which is built partly upon the street and partly upon property adjoining, with the consent of the owners thereof, the expense may be assessed upon the property abutting on the improvement. Longworth v. Cincinnati, 34 0. St. 38 Pa. St. 503. 60 State V. Rutherford, 58 N. J. L. 113; 32 Atl. 688. But see S. C. 56 N. J. L. 340, 29 N. J. 156. 66 Brown v. Central Bermudez Co., 162 Ind. 452, 69 N. E. 150; Scott V. Hayes, 162 Ind. 548, 70 N. E. 879; Cicero v. Green, 211 111. 241, 71 N. E. 884. 67 Kuhna v. Omaha, 55 Neb. 183, 75 N. W. 562. 68 Swamp Land District v. Silva, 98 Cal. 51, 32 Pac. 866. 60 Gibson v. Chicago, 22 111. 566; Cicero v. Green, 211 111. 241, 71 N. E. 884; Dashiell v. Mayor, &e., 45 Md. 615; Matter of Eager, 46 N. Y. 100. An objection that the warrant attached to the tax roll, permitted the collection of 2% additional for collection fees is without force. The cost of collection is a neces- sary part of the expense of a 502 MAKING THE ASSESSMENT. § 526 which are necessary to make an improvement in a good and workmanlike manner;'^" the interest on assessments payable in installments;^^ and the interest to accrue on street im- provement bonds; and the discount necessary to convert them into cash.^^ A statute limiting to five per cent of the as- sessed valuation the amount to be raised in any one year in any special assessment district, is not violated by issuing bonds payable in five annual instalhnents, none of which exceed five per cent''* Where the cost of a " storm water sewer " is only five per cent of the entire cost of a street im- provement, and such sewer is merely a covered drain for the sole purpose of carrying off surface water, and is absolutely essential to the proper construction and preservation of the street, it is no objection that an assessment for its cost was included in the street improvement assessment, due notice having been given.''* Petitioners for certiorari to quash as- sessments cannot complain because the authorities, in mak- ing the assessmentj left out of consideration a part of the cost of building the improvement, where the cost which they considered was much more than enough to justify the as- sessment.''® Where the statute limits an assessment to a certain percentage upon the assessed valuation, an assess- sewer, and may be included either Part of Cost illegally incurred in the original sum ordered to be — When immaterial. levied, or with perhaps equal pro- Under a statute, enacted to au- priety added afterwards. Warren thorize assessments in spite of il- V. Grand Haven, 30 Mich. 24. legality, providing not to exceed TO Longworth v. Cincinnati, 34 one half the cost, and not exceed- 0. St. 101. ing benefits derived, it is immater- '1 Steese v. Oviatt, 24 0. St. ial whether a part of the cost of 249. construction was illegally incurred, '2 People v. Austin, 47 Cal. 353. or whether the illegality was of a '3 Boehme v. Monroe, 106 Mich, kind the legislature might have 401, 64 N. W. 204. authorized, where the amount le- '* Gates V. Grand Bapids, gaily expended was more than (Mich.), 98 N. W. 998. double the amount assessed. Gar- 75 New England Hospital v. diner v. Collins, 188 Mass. 223, 74 Street Com'rs, 188 Mass. 88, 74 N. E. 341, N. E. 294. 603 § 527 THE LAW OF SPECIAL ASSESSMENTS. ment in excess is void only as to the excess; and one who seeks to annul the assessment cannot complain in a col- lateral proceding until he has paid, or tendered, all except such excess.^® What expenses may not be inclnded in. 527. An addition made by the board to the legal amount of one's assessment in order to bring the total amount up to a sum large enough to permit payment in five annual installments, is an illegal and arbitrary act, without author- ity or jurisdiction, and renders the whole assessment void if the illegal assessment cannot be ascertained and separated. '^'^ And where benefits were assessed at a certain sum, and about six per cent was added by the equalizing board, the assess- ment was invalid.''* So, too, an assessment in excess of twenty-five per cent of the value of the property, when that limitation is fi^ed by statute.''* An estimated percentage for cost of collection may not be included,*" nor the actual Sufficiency of itemized estimates. The itemized estimate of the cost of local improvement is suffi- cient if it shows the estimated cost of the substantial component elements of the improvement. Hul- bert V. Chicago, 213 111. 452, 72 N. E. 1097; Clark v. Chicago, 214, 111. 318, 73 N. E. 358. See also Chi- cago U. T. Co. V. Chicago, 215 111. 410, 74 N. E. 449. A statutory provision that an itemized estimate of the cost of the improvement shall be made in writing by the engineer, over his signature, and made a part of the record of the first resolution for the improvement is manda- tory, and a mere reference to such estimate in the record of such resolution is not a compliance with the statute. Kilgallen v. Chicago, 206 111. 557, 69 N. E. 586; Bick- 504 erdike v. Chicago, 203 111. 636, 68 N. E. 161; Becker v. Chicago, 208 111. 126, 69 N. E. 748. T6 Elkhart v. Wickwire, 121 Ind. 331, 22 N. E. 342. Excess over Cost. AblJ excess of assessment col- lected over the cost of the improve- ment, cannot be devoted to another municipal purpose, but must be held rateably for those contribu- ting. Cleveland v. Tripp, 13 R. I. 50. T7 Brennan v. Buffalo, 162 N. Y. 491, 57 N. E. 81. 78 Chamberlain v. Cleveland, 34 O. St. 552. T» Hays v. Cincinnati, 62 0. St. 116, 56 N. E. 658. 80 Spangler v. Cleveland, 35 O. St. 469; Higman v. Sioux City (la.), 105 N. W. 527. MAKING THE ASSESSMENT. § 527 cost, where the statute forbids ;^^ and the expenses incurred in unsuccessfully defending suits brought against a borough because of its illegal and negligent acts in executing a pub- lic improvement,*^ extras or incidentals not specified in the ordinance,®* where fifty per cent was added to the estimated cost of the work in front of each lot,®* and the amount paid for repairs of a culvert, after its acceptance,*® are all im- proper items which, if included in the assessment, will in- validate it. A judgment confirming an assessment, which includes the cost of making same, will be set aside if ob- tained after passage of a statute prohibiting such cost from being included, although the proceedings were commenced hefore such act was passed.®® The power to revise an as- sessment does not authorize the addition of charges not named in the original assessment,®'^ nor can an expense which was not legally capable of being assessed against private property originally be made a charge against such property by reassessment proceedings,®® and where property has been specially assessed for a street improvement to the «xtent provided by statute, an assessment against the same property for a sidewalk is invalid.®® 81 Error sufficient to reverse pairs of the culvert after its ac- judgment of confirmation. Me- ceptance. Spangler v. Cleveland, Chesney v. Chicago, 201 111. 344, 35 Ohio St. 469. 66 N. B. 217. 89 Kerfoot v. Chicago, 195 111. 82 State V. Rutherford, 57 N. J. 229, 63 N. E. 101 ; Gage v. Chi- L. 619, 31 Atl. 228. eago, 195 111. 490, 63 N. E. 184; 83 Smith V. Portland, 25 Or. 297, Gage v. Chicago, 196 111. 512, 35 Pac. 665. 63 N. E. 1031. 84 Watkins v. Zwietusch, 47 Wis. st Schneider v. Dist. of Colum- -513, 3 N. W. 35. Johnson v. Mil- bia, 7 Mackey, 252. waukee, 40 Wis. 315. 88 Schintgen v. La Crosse, 117 85 Where a street improvement Wis. 158, 94 N. W. 84. required a brick and stone culvert, 89 Pretzenger v. Sutherland, 63 as well as earth construction, each 0. St. 132, 57 N. E. 1097. «lass being done separately and by When ohjeetkms may he made. ■several contractors, the culvert be- An objection that an itemized ing first completed and paid for, — estimate of cost has not been made it was error to include in the as- as required by law comes too late cessment the amount paid for re- upon application for judgment of 505 I§ 528 THE LAW OF SPECIAL ASSESSMENTS. 528. A review of the cases cited in the marginal notes upon the limitation of the assessment will lead irresistably to the conclusion that any excess beyond the cost of the work should be paid for from the general fund, and that any attempt to collect such excess from the abutting owner is sale, and is in the nature of a collateral attack on the judgment of confirmation. Gage v. People, 207 111. 61, 69 N. E. 635: Ryan V. People, 207 ni. 74, 69 N. E. 638. An objection that an estimate of cost made by the engineer is not included in the first resolution of the board of public improve- ments, cannot be urged upon ap- plication for sale, as it could prop- erly have been urged on applica- tion for confirmation, and when not made there is deemed waived. Gage V. People, 207 111. 377, 69 N. E. 840; Steenberg v. People, 164 111. 478, 45 N. E. 970; People V. Talmadge, 194 111. 67, 61 N. E. 1049; Walker v. People, 170 111. 410, 48 N. E. 1010; Thompson v. People, 207 111. 334, 69 N. E. 842. Salariea of local Board. Under a statute for levying as- sessments, and authorizing an amount not to exceed 6 per cent thereof towards the cost of making and collecting such assessment, the cost and expense of maintaining a board of local improvements and paying their salaries can not be included therein, as the statute applies only to the cost of making and collecting the particular as- sessment. Betts V. Naperville, 214 111. 380, 73 N. E. 752. Excessive Levy. A levy made after the improve- ment is completed, in gross excess of the ascertained cost, is fraudu- lent and void. Union &c. Ass'n V. Chicago, 61 111. 439. Excess over cost to pay da/mages. The levying of ten per cent of an assessment to pay damages to the city in a suit then pending, the liability of the city being de- pendent on theg-esult of that suit, makes such portion of the assess- ment void. Gurnee v. Chicago, 40 111. 165. Making assessment before estimate. Where the authorities undertake to levy and collect a tax for the construction of a sidewalk, without in fact building the same, or ob- taining estimate of its cost, the as- sessment is absolutely void. Belle- vue Imp. Co. v. Bellevue, 39 Neb. 876, 58 N. W. 446. Expense of pa/virvg B. R. property improperly included. Where it is the duty of a rail- road company to pave the ap- proaches to a viaduct, but the whole cost of paving is spread proportionately over each piece of property assessed, the assessment is illegal, and each confirmation judgment is based on an illegal assessment. Chicago v. Nodeck, 202 111. 257, 67 N. E. 39. Assessment limited to valuation. Under a statute limiting the amount of a special assessment to fifty, per cent of the assessed val- uation, the term " assessed value " 506 MAKI2S'G THE ASSESSMEINT. § 52& the uncompensated taking of private property for public use. Exceeding tax limit. 529. It is no defense to an application for a judgment in rem for a delinquent special tax upon lots for a pave- ment, that the ordinance in providing that the city shall pay for the intersections, goes beyond the constitutional limit of taxation. *** Assessments made against individual owners of land within a benefit district, to pay the cost of establish- ing a public park, are not taxes within the meaning of the constitution, and cannot be held unconstitutional because refers to the value of the prop- erty as assessed for general tax- ation next prior to the time the improvements are ordered. Ferry V. Tacoma, 34 Wash. 652, 76 Pac. 277. Where a statute provides that street improvements shall not be made when the estimated cost ex- ceeds fifty per cent of the assessed value of the property assessed, the limitation refers to the whole of the property within the assessment district, and the assessment is not rendered invalid because some of the individual lots are assessed at more than half their assessed val- uation. Ferry v. Tacoma, 34 Wash. 652j 76 Pac. 277. Assessment for work outside of resolution. In an action to foreclose a spe- cial assessment lien, an answer that there was wrongfully in- cluded a charge of fourteen cents per front foot for work done, not authorized by the resolution of in- tention, nor the invitation for sealed proposals, is good, and not aflfected by failure to appeal to the board. Donnelly v. Howard, 60 Cal. 291. Estimate of cost — Evidence as to making. Where the estimate of cost is made and signed as required by law, evidence as to who made it is properly ruled out, because the cost of the system depends on the plans and specifications and the cost of actual labor and materials, and riot on the estimate. Betts v. Naperville, 214 111. 380, 73 N. E. 752. When statute requiring estimate of cost sufficiently complied with, see Cheney v. Beverly, 188 Mass. 8, 74 N. E. 306. When second and increased es- timate held to be in effect an original estimate, see Denver v. Kennedy, 33 Colo. 80, 80 Pac. 122, 467. Limitation on amount of Assess- ment. For case construing somewhat conflicting statutory provisions, see Norton v. Fisher, 33 Ind. App. 132, 71 N. E. 51. »o People V. Green, 158 111. 594, 42 N. E. 163. 507 § 530 THE LAW OF SPECIAL ASSESSMENTS. they exceed the maximum rate therein allowed.®^ A charter provision that the tax levied for general expenses of the city shall not exceed a certain sum, without a petition for and vote by the tax payers does not apply to an assessment for building piers and breakwaters, to prevent encroachment by the lake.*^ But an assessment for street paving is invalid where it is made for the purpose of reimbursing the city for money to be paid by it to a contractor for paving under a contract that was void because of creating a debt in excess of the constitutional limit,®* although the fact that a city has exceeded its debt limit can not be shown to defeat a proceeding to improve a street in part by special assess- ment and part by general taxation. The question cannot arise until the city seeks to borrow money or incur an in- debtedness in such behalf.®* Statute of limitations. 530. The legal truism that the statute of limitations does not run against a municipal corporation acting in the discharge of a public duty,®^ has no application to the com- mencement of actions at law or suits in equity begun against such corporations for violations of statutory duty in making assessments. The various statutes limiting the commence- ment of actions are applicable to and include these classes of cases. And the joinder of taxes, void for defects going to the validity of the assessment and affecting the ground- work thereof, with other taxes which a court of equity will require paid as terms of granting relief against the illegal taxes, will not prevent the running of the statute of limi- tations as to such illegal tax.®® 91 Kansas City v. Bacon, 147 os McCartney v. People, 202 111. Mo. 259, 48 S. W. 860. 51, 66 N. E. 873; Bell v. Nor- 92 Soens V. Racine, 10 Wis. 271. wood, 8 Ohio C. C, N. S. 435. 93 Allen V. Davenport, 107 Iowa, »« Levy v. Wilcox, 96 Wis. 127, 90, 77 N. W. 532. 70 N. W. 1109. 94 Jacksonville R. Co. r. Jack- Irregularities in condemnation sonville, 114, 111. 562, 2 N. E. proceedings which formed the 478. groundwork of an assessment for benefits for opening a street 508 MAKIJSTG THE ASSESSMENT. 531 Suits to vacate assessments. 531. A statute providing that '-'no statute to set aside special assessments, or to enjoin the making of the same, shall be brought, nor any defense to the validity thereof be allowed, after the expiration of thirty days from the time the amount due on each lot or piece of ground liable for such assessment is ascertained, " being within the jurisdic- tion of the legislature, is not such a restriction upon the rights of litigants as calls for interference on the part of the courts, if the prior proceedings are sufficient to confer juris- diction upon the corporate authorities to proceed.^^ But a provision of a city charter barring an action to set aside, or test the validity or regularity of a tax assessment unless brought within one year from the completion and delivery of did not Tender the land assessed not " liable to taxation," within the meaning of Sec. 1210 h. Wis. Rev. Stats., even though they might render the condemnation proceedings void; and where such land was sold for nonpayment of the assessment, an action com- menced more than a year after the sale to set aside the certificate for such irregularities was barred by said section. Pratt v. Milwaukee, 93 Wis. 658, 68 N. W. 392. Sec. 1210 h. above referred to applies to sales for street improve- ment assessments, and certificates issued thereon. An action to set aside an ille- gal special assessment for street improvements cannot be deemed commenced against the owner of the assessment certificate, to whom it has been transferred by the con- tractor, so as to stop the running of the statute of limitations as to the former, until the summons is actually served upon him, al- though it had been commenced against the city and the contractor before the expiration of the period of limitation. Levy v. Wilcox, 96 Wis. 127, 70 N. W. 1109. 97 Wahlgren v. Kansas City, 42 Kan. 243, 21 Pac. 1068; Topeka V. Gage, 44 Kan. 87, 24 Pac. 82; Doran v. Barnes, 54 Kan. 238, 38 Pac. 300; Argentine v. Simmons, 54 Kan. 699, 39 Pac. 181; Kansas City v. Kimball, 60 Kan. 224, 56 Pac. 78. Under a statute limiting the time within which proceedings may be had to attack a special assessment to 30 days from the time the as- sessment is ascertained, an action commenced Oct. 2, to attack an as- sessment determined on Sept. 1 is too late, notwithstanding the fact that Oct. 1 fell on Sunday, and the Code provided tiiat the time with- in which an act is to be done shall be computed by excluding the first day and including the last, but that, if the last day be Sunday, it shall be excluded. The Code pro- vision does not apply. Leaven- SOS §§ 532, 533 THE LAW OF SPECIAL ASSESSMENTS. the roll, does not apply to an action to set aside a sale of tlie properly upon which the assessment was imposed.** Where a city seeks to recover from a railway company the cost of a street improvement under a contract arising upon the acceptance of a grant under a city ordinance, the stat- ute of limitations may be pleaded in bar, same as in ordinary actions." Validity of Legislative Bond Act. 532. A statute authorizing the issue of bonds for street improvements, providing that the bonds, after issuance, shall be conclusive evidence of the regularity of all proceedings prior thereto, is not unreasonable because it fixes an arbi- trary period of 30 days to commence proceedings after which defects which before might have been fatal are placed be- yond inquiry.^ Limitation on power to exempt. 533. The provision in sec. 3, art. 9, of the Illinois Con- stitution of 1848, that " the property of the State and coun- ties both real and personal, and such other property as the General Assembly may deem necessary for school, religious and charitable purposes, may be exempt from taxation," is a limitation upon the power of the legislature to grant ex- worth V. Jones 69 Ean. 857, 77 or tax deed, for any error or defect Pac. 273; Kansas City v. Gibson, going to the validity of the assess- 66 Kan. 501, 72 Pae. 222. ment and aSecting the ground- »8 Brennan v. Buffalo, 162 N. Y. work of such tax, or on account 491, 57 N. B. 81. of any void or defective special o» Muscatine v. Chicago, E. I. & assessment, shall be commenced P. R. Co., 79 Iowa, 645, 44 N. W. within one year from the date of 909. such tax sale, and not thereafter," What covered hy Statute. covers tax sales, and tax sale cer- A statute which provides that tificates issued to pay for paving " Every action or proceeding to set a city street. Hamar v. Leihy, aside any sale of lands for the 124 Wis. 265, 102 N. W. 568. non-payment of taxes, or to cancel i Chase v. Trout, 146 Cal. 35iO, any tax certificate, or to restrain 80 Pae. 81. the issuing of any tax certificate 510 MAKING THE ASSESSMENT. § 534 emptions from taxation except as to those specifically au- thorized by it. There is no power in the legislature to grant exemption from special assessments.^ Plans and specifications. 534. It would seem that the preparation of plans, speci- fications, maps or diagram, showing in detail the work to be done, and their filing in some public place, being necessary for the information of bidders for the proposed work, should be a necessary preliminary to intelligent bidding, and it has been so held, and that the failure to file avoids all sub- sequent proceedings, such requirement being a condition precedent.^ But the contrary has also been held, where the charter so permits, the requirement being deemed directory merely,* and it has also been held that the omission, even when required by statute, is a mere irregularity and insuffi- cient to vacate the assessment.* And where plans and speci- fications are required, they must conform to and be consis- tent with the resolution to do the work.^ Where it is the statutory duty of the city engineer to prepare the plans and specifications for a proposed street improvement, it will be presumed that he prepared them in proper time and in con- 2 Chicago V. Baptist Theologi- common council determine to make cal Union, 115 111. 245, 2 N. £. such an improvement, they shall 254. cause to be made and filed with 3 State V. Bayonne, 56 N. J. L. the clerk certain estimates, before 463, 29 Atl. 168; Buckley v. Ta- the work is ordered — compliance coma, 9 Wash. 253, 37 Pac. 441. with each of these requirements ia Under a charter providing that a condition precedent to the lia- every resolution introduced into bility of adjoining lots for such the Common Council for doing cer- work. Hall v. CEippewa Falls, 47 tain street work at the expense of Wis. 267, 2 N. W. 279. adjoining lota, shall be referred to * Magee v. Commonwealth, 46 a committee, and shall not be Pa. St. 358. This refers to the adopted within fourteen days after filing of the assessment. Gilmore its introduction, nor within ten v. Utica, 31 N. Y. 26, 29 N. B. days after the proceedings relative 841. thereto at the time of its introduc- b In re Upson, 89 N. Y. 67. tion have been published in the « Fay v. Reed, 128 Cal. 357, 60 official paper; and that when the Pac. 927. 511 § 535 THE LAW OP SPECIAL ASSESSMENTS. formity to the ordinance;'' but it will not be presumed tbat the plans, specifications and profile referred to in a contract, but not given in the record, will not supply apparent omis- sions in the contract* Where the statute requires the en- gineer's certificate to be recorded, and upon the back of the certificate there is a diagram showing the amount of work done as required by the contract, and the diagram is referred to in the certificate, failure to record the diagram prevents a valid lien against the property.® The adoption by the com- mon council of a resolution directing advertising for propos- als for street work, " in accordance with the plans and specifi- cations now on file," is equivalent to an adoption of such plans and specifications, and tantamount to a prior direction -to the city engineer to make a survey, diagram, estimates and specifications. •''' As recorded the assessment and diagram^ must agree with that' attached to the original assessment, and contain a sufficient description of the premises. ^^ If the notice inviting sealed proposals for doing the work omits reference to a diagram and specifications thereof, the pro- ceedings are invalid.'^ Eminent domain. 535. This is a vast subject, and there is no intent on the writer's part to go into it beyond calling attention to a few principles decided by the courts as applicable to cases where the payment is to be made by the levy of special assessment T Taber v. Grafmiller, 109 Ind. 12 Stockton v. Clark, 53 Cal. 82. 206, 9 N. E. 721. Sufficiency. 8 Cuming V. Grand Rapids, 46 That is certain which can be Mich. 150, 9 N. W. 141. made certain. Chase v. Trout, B Buckman v. CuneOj 103 Cal. 146 Cal. 350, 80 Pac. 81. 62, 36 Pac. 1025. Defining (assessment district ty ref- 10 Stockton V. Skinner, 53 Cal. erence to map. 691. A resolution for a street im- 11 Norton v. Courtney, 53 Cal. provement, and fixing the taxing 691. As to the sufficiency of dia- district as "all the lots, premises gram, see Whitney v. Quaeken- and parcels of land fronting upon " hush, 54 Cal. 306. a portion of a certain street "as 512 MAKIIiTG THE ASSESSMENT. § 535 on benefited property. The propriety of the exercise of the right of eminent domain is a legislative and not a judi- cial question; and except as to compensation, the manner of its exercise by the legislature is unrestricted.^^ Pro- ceedings under this power are adversary, the municipal-cor- poration on one side, and the property owners on the other; and where the charter of a city provides that its common council may appoint the jurors to assess the damages, that the council may confirm the report of the jury, and that such confirmation shall be conclusive and final, such proceedings are contrary to fairness, justice and right, and are void.** But because of the fact that such proceedings are purely statutory, charter provisions authorizing them are not void because they provide that a judgment of condemnation shall not be appealed from, but reviewed only upon certiorari.-^® Where the use is a public one, the legislature is the exclusive judge of the amount of land, and the estate therein, which it is proper for the public to acquire ; and it may authorize the condemnation of the fee-simple of lands for public streets.** A change of a country road to a city street in consequence of the extension of the limits of a city does not impose an additional servitude upon the real property over which the shown by a map of the proposed St. Paul, 46 Minn. 540, 49 N. W. district on file," sufficiently de- 325. fines the assessment district. A city has no power to purchase Boehme, v. Monroe, 106 Mich. 401, an easement for street purposes, 64 N. W. 204. under a charter which, besides the 13 State V. Rapp, 39 Minn. 65, usual" provisions for the condemna- 38 N. W. 926. tion of land for public grounds, 1* Lumsden v. Milwaukee, 8 Wis. streets, &c., provides that the city 485. "may lease, purchase, and hold 15 State V. Oshkosh, 84 Wis. real or personal property sufficient 548, 54 N. W. 1095. for the convenience of the inhab- it But the title so acquired is a itants thereof, and may sell and " qualified or terminable fee," for convey the same, and the same street purposes only, which the while owned by the city shaJl be municipality holds in trust for free from taxation. Trester v. public purposes, and may neither Sheboygan, 87 Wis. 496, 58 N. W. sell nor give away. Fairchild v. 747. 33 513 536 THE LAW OP SPECIAL ASSESSMENTS. highway is constructed so as to require any new condemna- tion. Such highway becomes impressed with the character of a city street, subject to the exclusive control of the city authorities, and to the liabilities and servitude of all the other streets within the city.-^^ Proceedings to condemn private property for a public street are to be taken as an entirety, and that as to any of the parties no valid street was laid in consequence of the want of proper notice to any of the land owners, a street cannot be regarded as lawfully established as against those who were properly served, so as to compel them to pay assessments laid upon them for benefits from this establishment.'^ Condemnation — Effects of. 536. The adoption of a special assessment ordinance for improving private property, such as an alley, is an assump- iTMcGrew v. .Stewart, 51 Kan. 185, 32 Pac. 896; Huddlestone v. Eugene, 34 Or. 343. 18 Brush V. Detroit, 32 Mich. 43. Special Assessment Collateral to Condemnation. A special assessment proceeding is collateral to a condemnation proceeding, and the question of jurisdiction to enter the judgment of condemnation is the only one involved in that case that can be entertained in the assessment pro- ceeding. Bass V. People, 203 111. 206, 67 N. E. 806. Bearing on Necessity for Taking. Where the statute permits land to be taken for a public park, and to assess a proportionate part of the cost upon the estates bene- fited, giving in each case a right of appeal to a jury, a person in- terested has no constitutional right to be heard before the mu- nicipal authorities on the ques- tion of the necessity of taking the land, or whether it was benefited. Holt V. Somerville, 128 Mass. 408. Massachusetts Statute. Where a portion of land is taken for a public park, and the bal- ance is assessed for benefits, the owner cannot surrender the re- mainder under the Massachusetts Statute of 1874, if he has settled for the part taken and conveyed it by warranty deed. Holt v. Somer- ville, 127 Mass. 408. Assessing Amount Against Prop- erty Not Taken. Where there is an award of compensation for land taken, an assessment by special taxation of the amount of the award upon the land not taken, is not an adequate provision for compensa- tion, because it compels the prop- erty owner to pay for his own land, — ' and this is especially true where the condemnation judgment is for damages to the land not taken as well as for the value of 514 MAKIJSTG THE ASSESSMENT. 536 tion of the duty to condenm the same.^^ It was formerly held in Illinois that municipal authorities may levy special assessments for street improvement purposes before acquir- ing the necessary soil by condemnation or otherwise, and may afterwards take the necessary steps to condemn and have the compensation and damages assessed,^" but this rule was changed by statute in 1897, which provides that no special tax or assessment shall be levied to pay for any improve- ment until the land necessary therefor shall be acquired and possessed by the city;^^ and there the statute provides for the improvement of any street already condemned, ceded or opened, and an assessment for a street improvement prior to its condemnation is illegal and void.*^ Compensation must be actually made for the land taken, and benefits can- not be offset.** the land taken. In such ease the special tax imposed upon the abut- ting residue in proportion to its frontage, falls upon the property which has been determined to be damaged. Bloomington v. Lath- am, 142 111. 462, 18 L. K. A. 487, 32 N. E. 506. 19 People V. Sass, 171 111. 357, 49 N. E. 501. 20 Holmes v. Hyde Park, 121 111. 128, 13 N. E. 540. 21 People V. Sass, supra. 22 Mayor, etc. v. Hook, 62 Md. 371. 23Payson v. People, 125 111. 267, 51 N. E. 588; Covington v. Worthington, 88 Ky. 206, 10 S. W. 790, 11 S. W. 1038. One, a part of whose land is taken for street purposes, must pay his proportion of the ex- pense thereof on the same basis that other owners pay; and it is no objection that the amount of the tax thus imposed exceeds the value of the property taken. Ibid. Condemnation — Questions deter- mined by. The propriety of the condem- nation of land for a street, and the power to make it, are matters ■ necessarily passed upon by the court in a proceeding to con- demn, and the court by entering judgment of condemnation neces- sarily determines that the prop- erty may properly be condemned. Gage V. Chicago, 146 111. 499, 34 N. E. 1034. Condemnation — Validity of As- sessment Based On. A proceeding by special assess- ment to raise money to pay the compensation and damages awarded for property taken or damaged by a city for a local im- provement is based upon an award of compensation, which must be a valid and legal one, and must have been made in the mode and 515 537 THE LAW OF M'ECIAL ASSESSMENTS. What property assessed. 537. This subject has been generally discussed in a prior chapter,^* and only a few concrete illustrations are referred to here. A municipal corporation cannot levy a special assessment on property beyond its corporate limits, but the correctness of what constitutes the boundary line cannot be by the tribunal authorized to make it by the constitution and the law. Ayer v. Chicago, 149 111. 262, 37 N. E. 57. Same — Bar to Second Proceed- ing — A handonment, A municipal corporation cannot ignore an assessment of damages made at its instance, and judg- ment of condemnation of land procured by it, and by the filing of a, new petition, obtain a re- assessment of damages by another jury. C. R. I. & P. R. Co. v. Chi- cago, 143 111. 641, 32 N. E. 178. Same — Dismissal of Proceedings. Dismissal of condemnation pro- ceedings at the instance of one property owner does not annul the assessment as to other owners who are not parties to such dis- missal, and the judgment of con- firmation of such assessment is binding on the city in a new pro- ceeding for the same improve- ment. Le Moyne v. Chicago, 175 111. 356, 51 N. E. 718. Condemnation Judgment — Effect of. The judgment of condemnation merely fixes the amount of the compensation to be paid to the owner for the taking of hia prop- erty. It does not of itself pass the title, but is merely a condi- tional judgment depending for its completeness upon the subsequent payment of the award. C. & N. W. R. Co. V. Chicago, 148 111. 141, 35 N. E. 881; Ayer v. Chicago, 149 III. 262, 37 N. E. 57. Same — Who Must Enter. It is the duty of the petitioner in a condemnation proceeding to see that a proper judgment is en- tered, and not that of the respond- ent. Ligare v. Chicago, 157 111. 637, 41 N. B. 1021. Procedure — Immaterial Error. The question as to whether the summons to jurors, in proceedings for condemning lands for public use, was properly served, is im- material where the record shows that all the jurors attended and performed the duty required. State V. Fond du Eac, 42 Wis. 287. Same— ^ How Jury Sworn. Where the charter provides that the court shall empanel a jury to decide on the necessity of the proposed condemnation " as in civil cases triable by jury," it im- plies that the jury should be sworn, as in civil cases, and noth- ing appearing to the contrary, it will be presumed the jury were properly sworn, viewed the prem- ises and returned their verdict as required by the charter. State v. Oshkosh, 84 Wis. 0-48, 54 N. W. 1095. But see Johnson v. Milwau- kee, 40 Wis. 315; Lieberman v. Milwaukee, 89 Wis. 336, 61 N. W. 1112. 2 ing sewers not yet built," the benefits derived from existing sewers are to be determined and assessed when the assessment is made upon property sewered and benefited by such existing sewers, but such assessments become liens only from the time connecting sewers are built, and draw inter- est only from the date of the con- firmation of the assessment for the connecting sewer. It is simply an ascertainment of benefits. Vree- land V. Bayonne, 60 N. J. L. 168, 37 Atl. 737. An assessment for a sewer one- third of a mile distant, and in- capable of draining plaintiffs' land, and in its present condition of no benefit to them, and not a part of a system of sewerage which, when completed will reach such lands cannot be sustained. The probability that in the future the city may project a sewer to form a connection therewith, and benefit the lands, is too remote to 583 § 606 THE LAW OF SPECIAL ASSESSMENTS. property specially benefited, it is not essential that the dis- trict shall be defined by ordinance, but it will be sufficient if the records of the tax proceedings clearly show the property specially taxed for the improvement.*® In so acting, the council exercises a legislative power for police purposes.*® Where the sewer is a unit, although constructed along more than one street, a single assessment therefor is valid,*'' and although property in one district may not be specially as- sessed for the purpose of making local improvements in an- other or adjoining district, this principle will not prevent the expenditure of money in another district where such ex- penditure is a necessary incident to the proper completion of the work, as for obtaining a proper outlet for a sewer in an adjoining tovra.** As a general rule, in the absence of fraud in establishing a sewer district, or in letting the con- tract for the construction of a sewer, and in the absence of imreasonableness of the ordinances providing for the estab- lishment and construction of the sewer, the courts will not interfere to stop the payment of a special tax bill issued as a benefit assessment for a sewer, and the ordinance will not be declared void simply because it is oppressive.*® Where 85 Atchison v. Price, 45 Kan. structed, does not make the terri- 296, 25 Pac. 605; WolflF v. Denver tory drained by botn a single and (Colo.), 77 Pac. 364. distinct district, nor does it re- 86 Wolff V. Denver, (Colo.), 77 quire that all the property within Pac. 364. that territory shall be assessed 87 Grinnell v. Des Moines, 57 la. for the sewer last constructed. 144, 10 N. W. 330. When a section is built or exten- The construction of two sewers, sion made, only the territory disconnected with each other, but drained and specially benefited by to be built in accordance with the the construction of such section plan adopted for sewerage in that or extension can be assessed for district, may legally be included these costs. Atchison v. Price, 45 in one contract, and to assess the Kan. 296, 25 Pac. 605. expense thereof in one assess- 88 Shreve v. Cicero, 129 111. 226, ment. In re Ingraham, 64 N. Y. 21 N. E. 815; Maywood Co. v. 311. Maywood, 140 111. 216, 29 N. E. The fact that a, sewer con- 704. structed in one district or portion 89 Heman v. Allen, 156 Mo. 534, of the city connects with or is an 57 S. W. 559. extension of another already con- 584 SPECIFIC IMPROVEMENTS. §§ 607, 608 statutory authority is given to construct sewers without form- ing a taxing district, and payment of the cost and expenses is provided for by an assessment on the lots fronting on the streets in which the sewer runs, it furnishes ample authority to the city to dispense with such districts, and a complaint to foreclose a lien need not allege the formation of a taxing district.®" Under certain circumstances, a city has power to create a new sewer district within the limits of a larger district, and to assess the cost of a new sewer in said dis- trict upon the abutting property therein according to special benefits.®* Flans and specifications. 607. Under a law requiring the making and filing of plans and specifications of work to be done in constructing sewers an initial step in such proceeding, the due filing of full specifications of the work to be done will not render a contract for the same valid unless the plans have also been made and filed.®^ And where the statute prohibits the con- struction of any sewer unless in accordance with a general plan, the omission to file such a plan is fatal to an assess- ment to pay the cost.®^ Private sewers. 608. The difference between a public and a private sewer, under the St. Louis charter, is not a mere difference in name, 90 White V. Harris, 103 Cal. 92 Kneeland v. Milwaukee, 18 528, 37 Pac. 502. Wis. 412; Wells v. Burnham, 20 91 Slierman v. Omaha, (Neb.), Wis. 113. 103 N. W. 53. 93 In re N. Y. Prot. Ep. School, Although a charter requires 46 N. Y. 178. a city to establish sewer districts When alteration of plan will not by ordinance, it need not pass avoid an assessment for sewers, another and specific ordinance to see State v. Jersey City, 29 N. J. fix the route, dimensions, mate- L. 441. rials or laterals of a sewer within Constructing seicer not on origi- the district. These details may nal plan. be either fixed by ordinance or left The fact that a sewer for which to the engineer to be regulated by an assessment was imposed in contract. State v. St. Louis, 56 1873 did not appear upon the gen- Mo. 277. eral plan for sewerage for the dla- 585 § 608 THE LAW OF SPECIAL ASSESSMENTS. but a physical fact, so that the council may not by ordi- nance or otherwise authorize the construction of what is in fact a public sewer and by merely denominating it a private sewer, tax the cost of its construction on the lots in the dis- trict named. Such an act would be a fraud, and the special tax bill issued in pursuance of it invalid.®* The consent of a city to a landowner to construct a private sewer sufficient for his property will not relieve him from liability for a public sewer thereafter constructed by the municipality in the street upon which his property abuts, and it is immate- rial that the city authorities had issued permits to allow private parties to connect with the private sewer, or that a city schoolhouse was connected therewith.^* An assessment trict, adopted in 1865, does not of itself vitiate the assessment; that after such plan is adopted, additional sewers may be needed, and their construction is author- ized by a statute permitting " such subsequent modifications as may become necessary in consequence of alterations made in the grade of any street or avenue or part thereof, in said district, or other- wise," and in order to invalidate such assessment it must be made to appear that the sewer did not accord with such general plan, or that no general plan had ever been devised, mapped and filed. Roosevelt Hospital v. Mayor, etc., 84 N. Y. 108. Power not improperly delegated. It is not an improper delegation of power to provide in a contract for sewer work that it shall be done in accordance with the speci- fications referred to, which speci- fied that " when the ground does not afford a substantially solid foundation, the contractor shall excavate the trench to such in- creased depth as the street super- intendent might decide to be neces- sary, and shall then bring it up to the required form and level, and with such material and in such manner as the street super- intendent may direct." Haugha- wout V. Hubbard, 131 Cal. 675, 63 Pac. 1078. St. Louis charter. The plans and profiles required by the charter of St. Louis of 1870 to be prepared and sub- mitted to the council are only in cases where the work is done by the city and paid for by appro- priations from the public treas- ury. State V. St. Louis, 56 Mo. 277. »*Hill V. Swingley, 159 Mo. 45, 60 S. W. 114. SB Philadelphia v. Odd Fellows, etc., Assn., 168 Pa. St. 105, 31 Atl. 917. The existence of a private sewer is no defense against an assess- ment for a public sewer which cuts the former, and gives a, bet- ter outlet. Sargent v. New 586 SPECIB'IC IMPBO'VEMEKTS. § 609 for a sewer built in a private way is not validated by the sub- sequent laying out of such way as a public street ; but if, after assessment and before building, the way is laid out as a public street, the assessment is valid. ^® And property which abuts upon and is specially benefited by the construction of a sewer, will not be relieved from bearing its proportionate share of the expense of the same, because the owners thereof have pre- viously constructed private drains or sewers which have not been authorized or adopted by the city as a part of its sys- tem.^^ An assessment for the cost of building sewers is not invalidated as being merely a private improvement because the city council authorized connection with private sewers, it being in the judgment of the council more complete and useful for the purpose for which it was intended.®* The power of a city to build a sewer for sanitary or other pur- poses is not affected by the fact that parties charged with a special tax for its construction already have a private sewer built.9« Outlets. 609. Where a proposed sewer is to have its outlet is a matter within the power of the corporate authorities to de- Haven, 62 Conn. 510, 26 Atl. 1057. ing thereon, the statutory meth- 96 Bishop V. Tripp, 15 R. I. 466, od of laying assessments on such 8 Atl. 692. lots is unreasonable and dispropor- 97 Atchison v. Price, 45 Kan. tionate, and in that respect the 296, 25 Pac. 605. statute is unconstitutional. Weed 98 Boyee v. Tuhey, 163 Ind. 202, v. Boston, 172 Mass. 28, 42 L. E. 70 N. E. 531. A. 642, 51 N. E. 204; Dexter v. In New York, the construction Boston, 176 Mass. 247, 79 Am. St. of a sewer through private prop- Rep. 306, 57 N. E. 379. erty, is unauthorized. In re Same — Payment pro tanto. Rhinelander, 68 N. Y. 105. Where a district sewer ten thou- 99 St. Joseph V. Owen, 110 Mo. sand five hundred feet long was 445, 19 S. W. 713. built by a contractor in compli- Laying sewer on private property. anoe with the plans of the city en- Where a sewer is laid out in a gineer and under his immediate strip of land which is called a supervision, and was duly accepted street, but is in reality private by the city and one hundred and property, as are the lots border- ninety-five feet of the sewer was 587 § 610 THE LAW OP SPECIAL ASSESSMENTS. termine, and their decision will not be disturbed unless there has been a clear abuse of discretion/ and the corporation has authority to extend the sewer to an outlet beyond the limits of the city, and to acquire by purchase or otherwise the land upon which to construct the sewer to its outlet.^ Where the charter provides that district sewers shall connect with a public sewer or other district sewer, or with a natural drainage, such requirement relates to a substantial matter and must be complied with, or the cost of construction of such sewers cannot be enforced by local assessment.^ If a common sewer be intended to serve as an outlet for other sewers, and also to benefit the lands abutting it, no part of the cost need be assessed upon the owners of lands along the line of the tributary sewers.* And where a discharging sewer is created entirely outside of a sewer district, the cost of its construction cannot be assessed against the lots and pieces of ground in such sewer district." Connections. 610. A requirement for a sewer connection with a dwell- ing on premises abutting on a sewer in a city is within the power of the local authorities under the laws of the state not in a public street, but ran ute is no defense to a proceeding through private property, the own- by the city to collect the special ers of which had not consented assessments made to pay for such thereto, this fact is not suffi- work. Walker v. Aurora, 140 111. cient to excuse property owners 402, 29 N. E. 741. from paying for so much of the lAyer v. Somerville, 143 Mass. sewer as runs through the public 585, 10 N. E. 457. streets. Johnson v. Duer, 115 Mo. o Ft. Scott v. Kaufman, 44 Kan. 366, 21 S. W. 800. 137, 24 Pac. 64. 1 Church V. People, 179 111. 205, Non-compliance vAth charter. 53 N. E. 554. Where a charter required a dis- 2 Gallon V. Jacksonville, 147 111, trict sewer to connect with a pub- 113, 35 N. E. 223. lie sewer or other district sewer, 3 Johnson v. Duer, 115 Mo. 366, or with the natural course of 21 S. W. 800. ' drainage, a connection with the bed The fact that an ordinance for of a creek which had become a the construction of a sewer pro- pond by the construction of streets vides that it shall empty into a and railroads, did not form a nat- lake or river contrary to the stat- ural course of drainage, and the 588 SPECIFIC OBJECTIONS. § 611 governing sanitation and public health, and this require- ment may be undisputed for municipal convenience, and as a necessary police regulation at the time the sewer is con- structed.® But the fact that sewer connections cost less on one side of the street than the other because the main sewer is laid nearer that side, affords no justification for levying a higher tax on the more remote lots, being in viola- tion of the rule that benefit to the property is the basis of the power of special taxation.'' Assessments and objections. 611. When a recorded plat at the time of the assessment showed a lot of a certain frontage, the fact that thereafter a portion of the same was sold and transferred to another person does not affect the validity of the assessment, and the whole of the lot is subject to taxation.* An assessment for a sewer is not rendered invalid because the resolution order- ing the same did not direct the manner of payment f nor be- cause the city authorities called in an outsider to assist in making it ;^" nor because the sewers prove faulty, after being built under the direction of commissioners appointed by statute ;^^ and where a large amount of rock excavation is rendered necessary for the connection of a sewer, the extra cost should not be charged on the land between the rock and the outlet, the benefit to the land drained being greater.^'* assessment to pay for same was city. Van Wagoner v. Patterson, void. Kansas City v. Swope, 79 07 N. J. L. 455, 51 Atl. 922. Mo. 44t5. T Palmer v. Danville, 166 111. 42. o A statute conferring upon cit- s Atchison v. Price, 45 Kan. 296, ies the right to assess the whole 25 Pac. 605. cost of the connection with the » Grinnell v. Des Moines, 57 la. sewer in a street in front of an 144, 10 N. W. 330. abutting land owner, is not an ex- lo Collins v. Holyoke, 146 Mass. ercise of the power of eminent do- 298, 15 N. E. 908. main, or the taking of private n State v. Jersey City, 29 N. J. property for public use without L. 441. just compensation, but is within i2Vreeland v. Bayonne, 58 N. J. the power of the legislature as an L. 126, 32 Atl. 68. incident of the police power of the 589 § 611 THE LAW OF SPECIAL ASSESSMENTS. Where a sewer for which an assessment had been leTied by reason of the uneven sinking of newly made land, ceased to conduct sewerage towards its outlet, but allowed its contents to flow out upon low land and become a nuisance, an assess- ment for a new sewer to do the work for which the old one was intended is legal. ^* And if a new sewer connect with an old one, for which the property had previously been as- sessed, it does not prevent an assessment on the same property for the new one; all property drained by the new sewer should be assessed to pay for its construction, and the as- sessment will be invalid if the property previously assessed be omitted.^* Failure to comply with requirements which are directory merely ;^® or the fact that part of the land in the district cannot be drained, the persons objecting being , those whose lands were drained ;^^ or an irregularity in in- cluding improper items in a sewer assessment, where a larger amount is afterwards deducted, ^^ will not invalidate an as- sessment. Under a charter provision that sewers should be of such dimensions as might be prescribed by ordinance, and might be changed, enlarged or extended, work was begun on a sewer under a defective ordinance. During its progress another ordinance was passed curing the defect, and all the work being in conformity with the latter ordinance, the as- sessment and special tax bills were valid.^* An assessment is not made void by omitting, prior to the assessment, to con- struct a sewer in a street embraced in the plan, when it is found that such sewer cannot be constructed without grad- ing the street to the established grade, for which no pro- 13 State V. Hoboken, 45 N. J. L. CollinB v. Holyoke, 146 Mass. 298, 482. 15 N. E. 908. 1* State V. Jersey City, 29 N. J. le Johnson v. Duer, 115 Mo. 366, L. 441. 21 S. W. 800. IB As that the superintendent of " Wells v. Street Com'rs, 187 sewers shall keep and submit to Mass. 451, 73 N. E. 554. the council an account of the cost is St. Louis v. Schoenemann, 52 of constructing a sewer, and to re- Mo. 348. port a list of persons benefited. 590 SPBOinC OBJECTIONS. § 612 vision is made by ordinance, and when the omitted sewer would be a lateral, into which no other sewer would drain or which would in no way affect the drainage of any other street^® 612. Where a sewerage system is constructed by the municipal authorities, a part of the cost to be paid by as- sessment on the abutting property, and a portion of the as- sessments are paid and another portion successfully resisted, a rule requiring the payment by those who resisted, of a sum equal to that paid by the others towards its cost, as a condition precedent to its use by them, is not unreasonable, the statute authorizing the authorities to make rules for the tapping of the sewers.*" Upon application for sale of prop- erty for a sewer assessment, the objection thereto based upon the undisputed fact that the sewer was not laid on the line indicated by the ordinance, should be sustained, in the ab- sence of proof that the sewer as constructed substantially complied with the ordinance, and that the deviation worked no injury to the owner, and occasioned no decrease in bene- fits.'"^ Where no means are provided for a separate valua- tion of the real and personal property of a railroad, the assessment for construction of a sewer based on a valuation including the personal property of the owner is void.** Such is also the case when the street named does not in fact exist; but the objection must be made on application to con- firm, where the defect does not appear on the face of the ordinance.*^ 19 Newell V. Cincinnati, 45 O ~ Under the Indiana statute, the St. 407, 15 N. E. 196. entire cost of building sewers may 20 Herman v. State, 54 O. St. be assessed against the lots or par- 506, 32 L. R. A. 734, 43 N. E. 990. eels of land benefited, and the as- zi Church V. People, 174 111. 366, sessment cannot be questioned in 51 N. E. 747. the courts except for jurisdictional 22 Chicago, M. & St. P. R. R. Co. defects. Boyce v. Tuhey, 163 Ind. V. Phillips, 111 la. 377, 82 N. W. 202, 70 N. E. 531. 787. Under the St. Joseph charter 23 Dempster v. Chicago, 175 111 special tax bills for sewers need 278, 51 N. E. 710. not expressly show the computa- 591 § 613 THE LAW OF SPECIAL ASSESSMENTS. Drainage and drainage districts. 613. In establishing a drainage district, jurisdiction is derived solely from the statute, and every essential fact necessary to such jurisdiction must aflSrmatively appear on the record, as no presumptions will be indulged in to sup- port it.^* Lands outside a drainage district, whose owner has enlarged a ditch connecting with a district ditch, may be taxed therefor if the statute permits.^' An act to au- thorize the drainage of land by other means than sewers does not authorize the filling in of such lands, and the levy of a special tax to pay for the same.*® Drainage commission- tion upon which the tax was ap- portioned. St. Joseph V. Farrell, 106 Mo. 437, 17 S. W. 497. Assessment limited to per cent- age of valuation. See Corliss v. Highland Park (Mich.), 95 N. W. 416. What defenses are inadequate. That defendant was assessed with and paid his part of the cost of sewers previously constructed and which as alleged by him were fully adequate, is no defense to a claim for the cost of a new sewer laid under proper authority. Michener v. Philadelphia, 118 Pa. St. 535, 12 Atl. 174. It is no defense to a sewer as- sessment that the sewer was neither a benefit to the property nor a benefit to the public. Mich- ener v. Philadelphia, 118 Pa. St. 535, 12 Atl. 174. Character of work not changed hy name. It is not competent for a coun- cil in building a brick sewer, to change the character of the work by calling it some other name. Clay V. Grand Rapids, 60 Mich. 451, 27 N. W. 596. " It is the duty of all public corporations to see that taxes and assessments are laid on principles of justice and equality, and that private persons shall not be com- pelled to assume public burdens. If a city council can do one thing and call it something else, so as to confound roads with sewers, and the repair of ope with the build- ing of the other, there is no safety to citizens against the grossest usurpations and injustice. If the work was a proper one, and very probably it was, it was the duty of the common council to build it under its right name, and make the public pay for it by the method of taxation appropriate to it, and not to lay the cost on property which is, apparently, much less benefited than the large district drained by it outside. Campbell, C. J. in Clay v. Grand Rapids, 60 Mich. 451, 27 N. W. 596. 2* Payson v. People, 175 111. 267, 51 N. E. 588. 25 People V. Drainage Dist., 155 111. 45, 39 N. E. 613. 26 7re re Van Buren, 79 N. Y. 384. 592 SPECIFIC OBJECTIONS. § 614 ers have no power to create an indebtedness in advance, and then levy an assessment for the purpose of meeting such in- debtedness,^^ and where they divided the lands authorized to be drained into three classes, and arbitrarily assessed them at fifty, forty and thirty cents per acre respectively, the as- sessment was void, as being regardless of whether the lands were benefited to such extent or not,^^ for under the Illinois Drainage Act, assessments are limited to the benefits re- ceived, and void as to the excess.^® 614. As the benefits for which a drainage assessment may be made must relate to the betterment of the land for the purposes to which it may reasonably be put, the amount of the water shed does not furnish a proper rule for the as- sessment of benefits, but the amount that falls on it for which artificial drainage is needed. Where from the natural sit- uation of the land this is little or nothing, there can be no ground for an assessment for drainage purposes, however much rain may fall.®" Under a statute authorizing the con- struction of drains, and to levy an assessment for their cost upon the lands benefited " to a distance from said drain included between the adjacent streets and avenues thereto," there is no authority for mingling in one assessment the cost of drains running between different streets.®^ 27 Winkelmann v. Moredoek, etc. a ditch because the lower lands Drain. Dist., 170 111. 37, 48 N. E. upon which the natural drainage 715; _ Ahrens v. Minnie Creek discharges, require it for their pro- Drain. Dist., 170 111. 262, 48 N. teetion. Blue v. Wentz, 54 O. St. E. 971. 247, 43 N. E. 493. 28 Lee V. Ruggles, 62 111. 427. ^^ In re Van Buren, 79 N. Y. 29 People V. Meyers, 124 111. 95, 384. 16 N. E. 89; Illinois C. R. Co. v. Assessment per Imeal foot. Commissioners, 129 111. 417, 21 N. Where certain sewer taxes were E. 925; Gauen v. Drainage Dis- assessed under a charter provis- trict, 131 111. 446, 23 N. E. 633; ion upon each lot fronting or Hosmer v. Drainage District, 135 adjoining a street through which 111. 51, 26 N. E. 587. a sewer had been constructed, at 30 Lands, which, by reason of a sum per lineal foot of frontage, their level, are naturally drained, equal to 314 per cent, of the are not subject to assessment for average cost per lineal foot of 38 593 § 615 THE LAW OF SPECIAL ASSESSMENTS. SIDEWALKS. In general — Necessity of notice. 615. If a charter authorize a council to provide by ordi- nance for the construction of sidewalks at the expense of abutting owners, such power is judicial in character, and can only be exercised upon notice to the owners, and giving them an opportunity to be heard.'^ And if the ordinance provide that the council may order the construction of a side- walk by resolution, notice of which shall be served on the ad- joining lot owners, and that in case the owner fails to con- struct the walk within the time fixed, the work shall be done on contract at his expense, service of the resolution is a condi- tion precedent to the right to have the walk constructed at the expense of the owner.** A demand upon the property owner that he construct the sidewalk, and his refusal or neg- lect to do so, are a prerequisite to the creation of a lien for the cost of such walk.** And, although a resolution to all sewers and drains constructed bunal, as it is too late to raise within the drainage district where them on resisting application for such lot is situated, prior to a judgment. Moore v. People, 106 certain year, the tax Is invalid 111. 376. because as an ordinary property 32 Camden v. Mulford, 26 N. J. tax it is in conflict with the con- L. 49; Traction Co. v. Board of stitution, not being assessed ac- Worlds, 56 N. J. L. 431, 29 Atl. cording to the true value of the 163; State v. Vineland, 60 N. J. property; and as an assessment L. 265, 37 Atl. 625. for improvements, it is not im- s»Hawlcy v. Fort Dodge, 103 posed for and within the limits of la. 573, 72 N. W. 756. special benefits derived therefrom. siMt. Pleasant v. B. & O. E. State V. Paterson, 48 N. J. L. Co., 138 Pa. St. 365, 11 L. R. A. 435, 5 Atl. 896 520, 20 Atl. 1052. When objections must he made. When lien may he filed — Penalty. Objections to an assessment for Where the statute so provides, drainage purposes that the com- upon the failure of an abutting lot missioners have not properly de- owner to construct a board walk termined the benefits, or that a after notice to do so the borough second assessment has not been may construct it, file a lien for made for a proper purpose, must the cost thereof, with 20 per cent be made before the proper tri- additional as a penalty. Smith v. 594 SPECIFIC IMPROVEMENTS. § 61& construct a sidewalk may require a three-fourths vote of the council for its adoption, it may be repealed by a majority vote, and payment for the cost of the work cannot be en- forced.^® Charter or ordinance requirements as to resolu- tions for sidewalks and notice to owners are mandatory, and compliance therewith is necessary to charge private prop- erty for the cost of such improvement.'® — — Single improvement. 616. Sidewalks on each side of the street may be in- cluded as a single improvement, and so may the improve- ments of several streets, unless, in the combination of streets and the like, the improvements should be so separate and distinct that the making of one cannot be reasonably said to benefit property abutting upon the other.*^ But under a stat- ute authorizing the construction of sidewalks in any street, the expense to be assessed in just proportion upon the abutting property, there is no power to join in a single assessment the expense of constructing sidewalks in different streets.** A single assessment for sidewalks upon various streets so situated that the sidewalks on one street are of no benefit to the property upon another street, is void, if there be evi- dence of the relative location of the streets. Otherwise the presumption is indulged that there has been no abuse of discretion.'® Kingston, 120 Pa. St. 357, 14 Atl. days' notice in which to do such 170; Beltzhoover v. Maple, 130 work, and for giving them written Pa. St. 335, 18 Atl. 650. notice, ft is not enough that such 35 Chariton v. HoUiday, 60 la. notice he actually given. The or- 391, 14 N. W. 775. dinance must provide therefor. selves V. Irey, 51 Neb. 136, State v. South Amboy, 62 N. J. 70 N. W. 961. L. 197, 40 Atl. 637. Ordinance must provide for no- st Davis v. Litchfield, 145 111. tice. 313, 21 L. E. A. 563, 33 N. E. 888. Where a statute directs that an 3» Arnold v. Cambridge, 106 ordinance for constructing side- Mass. 352. walks at the expense of abutting 39 gtorrs v. Chicago, 208 111. owners, and that it shall provide 364, 70 N. E. 347. for allowing them at least thirty 595 §§ 617, 618 THE LAW OF SPECIAL ASSESSMENTS, What included in. 617. Where by statute the cost of constructing sidewalks by special taxation is authorized, the cost of curbing the street by making the curbstones the outer edge of the sidewalk is not included, but the cost of laying the gutter on an un- paved street may be included.*** In a resolution for street im- provements the board has a right to confine the curbing and sidewalks to the portion of the street where such work had not been done, and it is no objection that the assessment is not equal and imiform because the cost of laying the side- walks was imposed only upon the lots where the curbing and laying of the sidewalks was done, instead of being dis- tributed on all the frontage in the district. There being no contrary showing, the presumption is that no sidewalks were laid except in front of the lots shown in the assess- ment.** Power of council — How exercised. 618. Under a general statute requiring that certain mu- nicipalities shall have " power to provide for the construc- tion, etc., of permanent sidewalks," such " power " cannot be exercised in any other way than by formal legislative action on the part of the council.*^ A special tax for the construc- tion of a sidewalk is invalid where the grade therefor has not been established ;*^ and under charter power to authorize the improvement of a street or part of a street, the council may iOiJoj V. People, 193 111. 609, 61 ply with the ordinance does not N. E. 1079; State v. New Bruns- render invalid a special tax bill wick, 44 N. J. L. 116. issued to pay for the same, when *i McSherry v. Wood, 102 Cal. the failure to observe the require- 647, 36 Pac. 1010. ments of the ordinance was due *2 Zalesky v. Cedar Rapids, 118 to diflference in grade of the Iowa, 714, 92 N. W. 657. streets, and the walk as con- *3 McDowell V. People, 204 111. structed was not less valuable to 499, 68 N. E. 379. the abutting property nor less con- Intersection of two streets. venient and safe for public use. The construction of a sidewalk Steffen v. Fox, 124 Mo. 630, 28 S. at the intersection of two streets W. 70. with a grade which does not com- 596 SPECIFIO IMPKOVEMENTS. §§ 619, 620 order the sidewalk laid on one side of the street only.** Where the irregularities of the surface require, a city may cause a sidewalk to be raised on posts, instead of placed di- rectly on the ground ; and the mere fact that such walk crosses running water in front of only regularly laid out lots, will not make the action of the city in building it ultra vires, nor destroy the lot owners' liability for assessments.*^ Where the pavement of a sidewalk is in good condition and repair, and the municipality tears it up in order to carry out a mu- nicipal improvement, the property owner cannot be charged with the expense of relaying the pavement.*^ Beview of benefits. 619. A determination by the common council that cer- tain sidewalks shall be constructed by special taxation is a determination that the property so specially taxed is benefited to the amount of such special tax, and that determination, as well as the necessity of the improvement, will not be re- viewed by the courts, except for abuse of discretion.*'' Liability for cost of sidewalk. 620. Under charter authority, a city may charge the cost of a sidewalk along the side of a corner lot wholly to such *4 State V. Portage, 12 Wis. 563. field v. Green, 120 111. 269, 11 N. *e Challiss v. Parker, 11 Kan. B. 261; Lightner v. Peoria, 150 384. III. 80, 37 N. E. 69; Payne v. S. « Philadelphia v. Henry, 161 Pa. Springfield, 161 111. 285, 44 N. E. St. 38, 28 Atl. 946. 105; I. C. R. Co. v. People, 170 " If, while the pavement is good 111. 224, 48 N. E. 215; Job v. and stands in no need of repair, Alton, 189 111. 256, 82 Am. St. the city may tear it up, relay and Rep. 448, 59 N. E. 622; McChes- charge the owner again with one ney v. Chicago, 171 111. 253, 49 N. excessively costly, it would be ex- E. 548; Walker v. Morgan Park, action, not taxation." Agnew, 0. 175 111. 570, 51 N. E. 636; Field J. in Wistar v. Philadelphia, 80 v. Western Springs, 181 111. 186, Pa. St. 505, 21 Am. Rep. 112. 59 N. E. 929. But as we have *7 pierson V. People, 204 111.456, already seen (Special Taxation), 68 N. E. 383; White v. People, this rule has been changed by 94 III. 604; Craw v. Tolono, 96 statute. 111. 255, 36 Am. Rep. 143; Spring- Special taxation of contiguous 597 § 621 THE LAW OF SPECIAL, ASSESSMENTS. lot,** or stipulate in one contract for making sidewalks on several streets, and to assess the cost thereof on the different lots fronting on such sidewalks, according to their frontage.** But where a strip of land surrounding a tract of land de- signed for a public park was conveyed to a city by parties who owned other land outside of and abutting said strip upon the express conditions in the deed of conveyance that the grantee should lay out and improve such strip as a pub- lic street, and forever after keep the same in good repair and order at its own expense, such city, for improving and keep- ing in repair such street, cannot require payment by its grantors because of their ownership of the aforesaid abutting property; and the same exemption from liability exists in favor of one who has since purchased a part of such abutting property."" VAUD AJiD INVALID ASSESSMENTS. Valid assessments. 621. Although the system of taxation by special assess- ment is of legislative creatioii, and the statutes upon the sub- property does not violate Sec. 1, Bight to widen sidewalk trithin Art. is, 111. Const, of 1870, requir- half a ilock. ing taxes to be levied " so that See Mitchell v. Peru, 163 Ind. every person and corporation shall 17, 71 N. E. 132. pay a tax in proportion to the What cost hill must show, value of his, her or its property." Under the Illinois statute pro- Harrigan V. Jacksonville (111.), 77 viding the cost of constructing N. E. 85. sidewalks shall be paid by special *8 Lawrence v. Killam, 11 Kan. taxation on contiguous property, 499. allowing the owner certain time *9Challiss V. Parker, 11 Kan. within which to construct it, and 384; Challiss v. Parker, 11 Kan. thereby relieve his property from 394. These eases hold that a side- such special tax, and, in case of walk may be made before the his neglect, to cause it to be con- street is graded. structed, and its cost collected 50 Omaha v. Megeath, 46 Neb. from the owner it is essential that 502, 64 N. W. 1091; Browne v, the bill of cost of such sidewalk Palmer, 66 Neb. 287, 92 N. W. shall show the separate items of 315. cost of grading, materials, laying 598 SPECIFIC IMPBOVBMENTS. § 621 ject should be strictly followed, it is not absolutely essen- tial to the validity of an assessment that the statute be blindly followed in all cases. Special assessment statutes, in common with other legislative acts, frequently contain provisions which the courts construe as directory merely. There is no absolute rule that can be laid down which will include all mandatory provisions and exclude those which are only directory. It is far the wiser course when any doubt exists to follow the statute literally. AU provisions which have for their object the guarding of the rights of the taxpayer, such as fixing the principle of assessment, giv- ing of notice, reception of bids, awarding of contracts, and acceptance of the work, so that no expense be unnecessarily incurred which will become a charge upon property, these will be deemed mandatory, and strict pursuance compelled. But mere prescriptions as to the way in which the actual work of assessment shall be done, especially when couched in general language, and which cannot affect the rights of the property owner, are usually adjudged to be directory. Mere technical objections are not encouraged. Unless the statute regarding the imposition of a special tax requires a literal compliance therewith in matters of mere form, a sub- stantial compliance with all things designed to safeguard the interests of property owner? satisfies all the demands of strict compliance.®-^ and supervision, in order to sus- delivered to the collector is imma- tain the validity of the special tax. terial. Only a clerical duty is in- Miservey v. People, 208 111. 646, volved. San Francisco v. Certain 70 N. E. 678. Real Estate, 50 Cal. 188; Doherty For catle holding same imufftr v. Enterprise M. Co., 50 Cal. 187. cient, see People v. Cash, 207 Separate assessments — Invalidity 111. 405, 69 N. E. 904. of one. GaUfomia. Where separate assessments are Om,ission to certify dwplicate roll, made for different portions of the SI Under a statute requiring the work, and separate demands are mayor to certify to the correct- made for the payment of each as- ness of the assessment roll, the sessment, the invalidity of one of omission to aflSx a copy of such the assessments does not render certificate to the duplicate roll 599 § 622 THE LAW OF SPECIAL ASSESSMENTS, Invalid assessments. 622. It is impossible to lay down any general rule as to the validity of assessments that will cover all cases. The the other invalid. Parker v. Eeay, 76 Gal. 103, 18 Pae. 124. Gorporation de jure or de facto — Levy by. The Talidity of an assessment levied by an irrigation district in no way depends upon the de jure character of the corporation, and it is immaterial whether such district be a corporation de jure or de facto. Quint v. HoflFman, 103 Gal. 506, 37 Pac. 514, 777. Irregularity in preliminary bond. An irregularity in a preliminary bond in that it is a few dollars less than the specified percentage of cost, is not jurisdictional, and does not vitiate subsequent pro- ceedings. It becomes functus offi- cio after the contract is awarded, and the property owner cannot object if the work is satisfactorily performed under the contract. Greenwood v. Morrison, 128 Cal. 350, 60 Pae. 971. Connecticut. Ratification by council. Under a charter authorizing as- sessment by the council, or a com- mittee appointed by it, an assess- ment is not made void because such committee was appointed by the mayor, and the report of such committee accepted by the coun- cil and adopted as its assessment. Bartram v. Bridgeport, 55 Conn. 122, 10 Atl. 470. Illinois. Prior improvement. Upon proceedings for opening a street sixty-six feet wide, it ap- peared that the same street had been opened three years before to a width of sixty feet, with a ditch on both sides, and it was held to constitute a prima faoie defense. Follansbee v. Chicago, 62 111. 288. Consolidation of several assess- ments. The consolidation of several separate and distinct assessments against various tracts of land into one proceeding, when reported for confirmation, when each lot of land appears only once in the rolls, does not invalidate the proceeding so as to defeat an application for judgment thereon. Even if it were error, it could not be reached in a collateral proceeding. Prout v. People, 83 111. 154. Improvements already made. A city cannot, by accepting and adopting improvements made with- out being authorized by ordinance, compel property owners to pay for the work so done. East St. Louis V. Albrecht, 150 III. 506, 37 N. E. 934. Assessing at specified percentage — Uniformity. A special tax for a street im- provement at a specified percent- age of the cost upon the right of way of a railroad in the street is not invalid as lacking uniform- ity, because abutting private prop- erty is assessed by frontage. 0. E. I. & P. E. Co. V. Moline, 158 111. 64, 41 N. E. 877. See note 28 L. R. A. 249. Such imposition will not be held invalid as a mere arbitrary ex- action, where the public authori- 600 SPECIFIC IMPROVEMENTS. 622 ■sins of the public officers who make them are both of omis- sion and commission. The omission of some statutory re- quirement is perhaps the most frequent cause of vitiating assessments, but the authorities not infrequently insert there- in something vi^hich is the result of their own cogitations, in- ties have made their estimate and assessment in good faith. Id. ■General tax not first levied. It is no defense to a special as- ;sessment for laying water mains that the money to pay for the pumping works by general taxa- tion has not been first provided. Hughes V. Momence, 163 111. 535, 45 N. E. 300. Assessment for work already done. Where the municipality has no power to make a special assess- ment, or in case the proceedings are made without providing for the pavement by special assess- ment, a proceeding to pay for work already done in that manner «annot be resorted to; but if the "power exists and there is a valid ordinance under which the work is idone, there is no objection to suc- cessful proceedings in pursuance •of the ordinance until full pay- ment for benefits is secured. West Chicago Park Com'rs v. Sweet, 167 111. 326, 47 N. E. 728. Unauthorized ohamge of material. Confirmation of a paving assess- ment cannot be defeated on the ground that the council had made an unauthorized change, in the paving material after the assess- ment roll had been made and filed, where there is no evidence to show that the original ordi- nance was not followed in making the assessment. Gait v. Chicago, -174 111. 605, 51 N. E. 653. Indiana. Mere informalities. A charter provision that mere informalities of the common coun- cil in ordering an improvement or making an assessment or ap- portioning the cost shall not be available as a defense by the prop- erty owner, does not deprive him of any substantial right, but re- fers to objections which do not affect the merits of the proceeding. Garvin v. Daussman, 114 Ind. 429, 5 Am. St. Eep. 637, 16 N. E. 826. Massachusetts. Contributions hy 'public. There may be voluntary con- tributions reducing the amount of the public charge, and such con- tributions do not invalidate the acts of the authorities charged with the duty of adjudging whether the improvement shall be made and its details, citing Atkin- son V. Newton, 169 Mass. 240, 47 N. E. 1029; Parks v. Boston, 8 Pick. 218, 19 Am. Dec. 322; Free- town V. Bristol, 9 Pick. 46; Cope- land V. Packard, 16 Pick. 219; Crocket v. Boston, 5 Cush. 182; Arlington v. Cutter, 114 Mass. 344; Dudley v. Cilley, 5 N. H. 558; Townsend v. Hoyle, 20 Conn. 1; Dillon, Mun. Corp., Sees. 458, 596. Agreement between city and don- ers. An assessment for a street open- 601 622 THE LAW OF SPECIAL ASSESSMENTS. ing is not rendered invalid by an agreement, pursuant to statute, that the land owners release their lands, contribute one third of the cost of improvement, " being cred- ited, however, with the betterments on land of those abutters who do not sign this proposal," and fur- ther to save the city harmless from damages which any owner who does not sign the offer may re- cover, " upon being subrogated to and credited with the betterments assessed or to be assessed by said city on such owners respectively," and the city agrees to assume the betterment assessments. Atkinson V. Newton, 169 Mass. 240, 47 N. E. 1029. Michigan. Ambiguous foots. Where there is ample power to levy an assessment, it will not be assumed from ambiguous facts that there was error in the exer- cise of such power. Cuming v. Grand Rapids, 46 Mich. 150, 9 N. W. 141. Absence of proof of publication. A failure of the common council to have before it, at the time of the confirmation of the assess- ment, proof of publication of no- tice of hearing of objections there- to, will not invalidate proceed- ings, where the proof shows such notice was in fact given, and the plaintiff fails to show that he was injured thereby. Shimmons v. Saginaw, 104 Mich. 511, 62 N. W. 725. Members of council being taxpay- ers. It is no objection to the validity of an assessment that the members of the common council who fixed the assessing district were tax- payers, and as such, interested parties. Brown v. Saginaw, 107 Mich. 643, 65 N. W. 601. Minnesota. Wrong heading in taw list. A special assessment against lots for constructing sidewalks in front is not affected by the fact that in the tax-list the amount of the assessment was in a column headed, "Delinquent Eoad Tax," there being no claim that the owner was misled thereby. Scott v. Hinds, 50 Minn. 204, 52 N. W. 523. Filing assessment roll in wrong office. It is no objection to the validity of an assessment that the roll, after confirmation by the district judge, shall be filed in the office of the board of public works in- stead of in the court. State v. Ensign, 54 Minn. 372, 56 N. W. 41. Non-assessment of street railway. It is not a valid objection to a special assessment for street pav- ing that the track of a street rail- way company therein was not as- sessed, unless it be shown that such railway company, in obtain- ing its franchise for use of the street, had agreed to pave the por- tion over which it operated its cars. State v. District Court, 80 Minn. 293, 83 N. W. 183. Missouri. Increase in amount over contract price. The fact that some small amount of work or material may have been apportioned and charged in the bill other than that called for by the contract, will not neces- sarily invalidate the bill; but the additional amount so assessed may, on a proper showing, be deducted. Neenan v. Smith, 60 Mo. 292. 602 SPECIFIC IMPEOVEMENTS. 622 'New Jersley. Conflicting evidence. The assessment of benefits by commissioners who have been on the ground, examined the prem- ises and made their report on the basis provided by charter, will not be set aside on conflicting evi- dence of the justice or sufficiency of such assessment. It must clearly appear that injustice has been done before an assessment will be set aside upon the facts. State V. Passaicj 37 N. J. L. 65. Technical objections. Where the proof shows the prosecutor to have been familiar with all the proceedings for a municipal improvement from its inception, it will not be set aside on technical objections. Brewer v. Elizabeth, 66 N. J. L. 547, 49 Atl. 480. New York. Failure to specify minor matters. An assessment is not invalidated by the fact that the common coun- cil does not in express words pre- scribe the exact time for publica- tion of notice for proposals, or specify the' date when it will meet and take final action on the ques- tion of the improvement. Gil- more V. Utica, 131 N. Y. 26, 29 N. E. 841. Assessment of city streets by Park Boa/rd. An assessment for paving part of a park, under contract from the park department of a city, when such department has exclusive power to pave roads and places in the park, while the common coun- cil is in charge of streets outside the park, is not invalidated by the fact that it includes work upon streets outside the park necessary to complete the paving in the park and to furnish it with proper drainage, and to make the con- necting streets and approaches safe for travellers. Kittinger v. Buffalo, 148 N. Y. 332, 42 N. E. 803. Unequal assessment. Proof of facts showing merely a grossly unequal assessment for a local improvement does not per- mit the influence that the board adopted some erroneous principle which resulted in the injustice complained of and which justifies the intervention of the court, when appealed to through an action to vacate the assessment. Monroe County V. Rochester, 154 N. Y. 570, 49 N. E. 139. Requiring two bonds with bid. The irregularity of requiring two bonds, one to accompany bid and the other to accompany the contract if awarded, is an irregu- larity cured by the provision of the charter that every assessment authorized thereby shall be valid and effectual notwithstanding any irregularity, omission or error in any of the proceedings relating to the same. Conde v. Schenectady, 164 N. Y. 258, 58 N. E. 130. Ohio. Ohamge from street to canal. Abutting properties cannot re- sist an assessment to pay the costs of a. street improvement because the site of the street was changed from a canal to a street without a new condemnation, or because the corporate authorities had granted the right to lay a track upon such street to a Eailroad Company. The remedy of the pro- prietors for such change is by an action for damages. Richards v. Cincinnati, 31 Ohio St. 506. 603 § 622 XHE LAW OF SPECIAL ASSESSMENTS. jurious to the landowner, antagonistic to some principle of law, and fatal to the assessment. A nimiber of cases are contained in the note appended, which are not properly classifiable under more general heads.®* Furnishing material not bid upon. The fact that the cost of sheet- ing used in building a sewer was included in the assessment, with- out any proposal or bid having been advertized or received, was not deemed of sufficient impor- tance to invalidate the entire as- sessment. Cincinnati v. Anchor White Lead Co., 44 0. St. 243, 7 N. E. 11. Washington. Test of validity of assessment. Each case arising under the laws for assessing abutting prop- erty to pay for street improve- ments must depend upon its par- ticular facts. If it appears that an assessment has been levied by competent authority, and that it is fair, and not in excess of the benefits to accrue by reason of the improvements to be paid for, it will be sustained by the courts. It is equally the duty of the courts to restrain the collection of as- sessments which are shown to be mere attempts to take the prop- erty of one for the use of others without compensation to the owner. White v. Tacoma, 109 Fed. 32. Wisconsin. Substantial compliance with stat- ute. Unless the statute regarding the imposition of a special tax re- quires a literal compliance there- with in mere matters of form, a substantial compliance with all things designed to safeguard the interests of property owners satis- fies all the demands of strict com- pliance. Gleason v. Waukesha Co., 103 Wis. 225, 79 N. W. 249. Same. Where there has been a sub- stantial compliance with statutory requisites in regard to the imposi- tion and collection of special taxes or local assessments, and the com- plainant is unable to show that any injustice has. been done to him, equity will afford him no relief against such taxes or assessments. Wells V. Western P. & S. Co., 96 Wis. 116, 70 N. W. 1071; Hen- nesy v. Douglas Co., 99 Wis. 129, 74 N. W. 983; Gleason v. Wau- kesha Co., 103 Wis. 225, 79 N. W. 249. 02 California. Invalid opening of street. An assessment levied for the opening of a street across a pri- vate lot which has not been dedi- cated to the public, or condemned for public use, and of which there was no user by the public until after the grading was done, for which the assessment was lev- ied, is invalid. Spaulding v. Bradley, 79 Cal. 449, 22 Pac. 47. Assessment on one side of street only. Where a statute authorizes the expense of grading a street to be " assessed upon the lots and lands fronting thereon," it means that it shall be assessed upon all of the lands fronting on the work, on both sides of the street, regard- less of whether more work was done on one side than the other. 604 SPECIFIC IMPEOVEMENTS. 622 The work is for the benefit of every abutting lot equally, and if the expense be assessed on the lots on only one side of the street, the assessment is void. San Diego Inv. Co. V. Shaw, 129 Cal. 273, 61 Pac. 1082. Illinois. Assessing lateral service pipes against vacant lots. The municipal authorities laid lateral service pipes from the main supply pipes in a street to the various lots abutting on the same, assessing the cost of such lateral pipes to each lot. On the objection of the owner of several vacant lots that they were in no manner benefited thereby, it was held that in the absence of any statutory provision on the sub- ject, the action of the municipal authorities was such an abuse of discretion as would justify the interference of the courts. War- ren V. Chicago, 118 111. 329, 9 N. E. 883. Double assessment. Where benefits in a street open- ing proceeding are set off against damages to the part of the land not taken, an attempt to raise money to pay for the property taken or damaged, by the assess- ment of special benefits against it, is to require the owner to pay twice, and unconstitutional. Leo- pold V. Chicago, 150 111. 568, 37 N. B. 892. Deviation from plan and character of improvement. The ordinance being the author- ity for and basis of a special as- sessment for a local improvement, the work must conform substan- tially therewith, and any deviation therefrom which renders the im- provement less beneficial to prop- erty assessed, should entitle the owner to relief against the as- sessment. Any such alteration, however slight, becomes to the owner a substantial, material change. The test is not merely identity of location, but the ef- fect produced on the assessed prop- erty. Eossiter v. Lake Forest, 151 111. 491, 38 N. E. 359. Assessment nuide on erroneous as- sumption. An assessment for opening a street will be set aside on ap- peal where it appears that it was made upon the erroneous assump- tion that other land was a public street, which in connection with that opened, would form a con- tinuous thoroughfare. Waggeman V. N. Peoria, 155 111. 545, 40 N. E. 485. Change of improvement — Dirt road for mMoadam. If it can be shown that the im- provement accepted by the city is practically no more than a dirt roadway, imperfectly graded, curbed and guttered, when the ordinance provides for a thorough- ly graded, curbed, guttered and macadamized roadway, such facts may be shown as a defense in an application for sale. Gage v. Peo- ple, 193 111. 316, 61 N. E. 1045, 56 L. E. A. 916. Indiama. Repairing drains. Where under color of making repairs and removing obstructions in a public drain, the authorities depart materially from the orig- inal specifications, and widen and deepen the ditch at a sum largely in excess of the original cost, the assessment will be set aside as to those landowners who attack it 605 622 THE LAW OF SPECIAL ASSESSMENTS. properly. Weaver v. Lemplin, 113 Ind. 298, 14 N. E. 600. Maryland. Want of proprietors' consent. If the consent of the proprietors owning a majority of feet front- ing on the street to be paved, must appear to have been given before ordering the pavement, the want of such assent will be a de- fense to the collection of the tax. Henderson v. Mayor, etc., 8 Md. 352. Massachusetts. Wrong principle of lwu>. A special assessment may be er- roneous where not laid upon es- tates liable thereto by reason of the adoption of a mistaken prin- ciple of law, but not by reason of a mistaken finding of fact that such estates were not specially benefited. Lincoln v. Street Com'rs, 176 Mass. 210, 57 N. E. 356. Michigan. Insufficient return on tax roll. The tax roll of a special assess- ment is invalid for want of a return or certificate showing upon what basis the assessment was made. Warren v. Grand Haven, 30 Mich. 24; Grand Rapids v. Blakely, 40 Mich. 367, 29 Am. Rep. 539. Unjust discrimination. The cost of building a sewer was assessed between the city and property owners in equal propor- tions; and after the city and some of the owners had paid their tax in full, the assessment was de- clared invalid and a new assess- ment ordered on the basis of the property owners paying two- thirds of the cost, and exempting those who had already paid un- der the original assessment. This could not be legally done, and an assessment which requires such discrimination between the prop- erties of persons taxed cannot be sustained. It makes taxation un- equal, which is unjust under any system. White v. Saginaw, 67 Mich. 33, 34 N. W. 255. Minnesota. Erroneous apportionment. An assessment is void where it is shown that the assessing board, in apportioning benefits for a street improvement, took into con- sideration only the proximity of the lots to the street, without regard to their situation in other respects, or how they might be affected by the grade. State v. Judges, 51 Minn. 539, 53 N. W. 800, 55 N. W. 122. Arbitrary and illegal assessment. A park having been established, the assessment district extended north from the park more than a mile. By the assessing board, this district was divided by east and west lines into several sec- tions, and assessed each lot with- in a particular section at the same amount, regardless of their relative distances from the park. This apportionment of benefits, be- ing by an arbitrary and illegal rule, the proceedings were void. State v. Brill, 58 Minn. 152, 59 N. W. 989. The court say, above, that " these special assessments for lo- cal improvements are drastic enough, at best, and such an arbi- trary system of apportioning them cannot be sustained." Mitchell, J. Arbitrary assessment. Where an assessment was made on about 3,000 feet front of prop- erty at $5.18 a foot, of which about one-third only was paid. 606 SPECIFIC IMPBOVEMEWTS. § 622 judgment against delinquents ap- plied for, but denied on jurisdic- tional grounds, a new assessment was made, in which property ad- ditional to that in the original assessment was included, thus less- ening the amount the delinquents were finally compelled to pay by about $1.25 per foot. It was held that an arbitrary rule of assess- ment was adopted, that the board did not exercise reasonable judg- ment, and that the assessment was void. The court say, " This arrangement operated as a penalty upon those who paid their assess- ments without entering into a con- test with the city as to its va- lidity, and offered a premium to those who became delinquent." State V. District Court (Minn.), 104 N". W. 553. Assessment by usurper. If a person neither de jure nor de facto a public oflScer usurps the functions and performs the acts required by law to be done by officers who do exist, both de jwe and de facto, the acts of such usurper in reference to a local improvement are invalid, and do not authorize an assessment for such improvement. State v. Dis- trict Court, 72 Minn. 226, 71 Am. St. Eep. 480, 75 N. W. 224. New Jersey. Failure to comply with charter. Where the report of the board for assessment of benefits does not show that they ascertained the expense incurred, or examined and determined what real estate should be assessed, or what proportion should be assessed to each owner, the assessment is defective in sub- stance, and a sale of land there- under is void. State v. Jersey City, 35 N. J. L. 381. When entire assessment invali- dated. A decision of the appellate court in a case of assessment for spe- cial benefits for street improve- ments which sets aside " both the proceedings and assessment," and a rule has been regularly entered in conformity therewith, invali- dates the entire assessment and is not limited in its legal effect to the prosecutors only. Long Branch Com. v. Dobbins, 61 N. J. L. 659, 40 Atl. 599. New York. Failure to value property before assessment. Where a power is granted by legislative enactment, with a. pro- viso annexed, the enactment is to be read as if no more power was given than is contained within the terms or bounds of the proviso. And where an assessment is lim- ited to one-half the value of the property, as valued by general tax assessing officers, and the property is not valued at all by such offi- cers, because exempt from taxa- tion, an assessment against it is void. In re Second Ave. Church, 66 N. Y. 395. Arbitrary assessm,ent. Where the council, without ex- amination, and for extraneous pur- poses, casts upon a single piece of property the burden of an im- provement whereby others are benefited, the assessment is in- valid. People V. Adams, 88 Hun, 122, 34 N. Y. Supp. 579. Ohio. Omission to properly advertise for bids. A failure to comply with the statute as to time and manner of advertising for bids, is a defect rendering the assessment invalid. 607 § 622 THE LAW OF SPECIAL ASSESSMENTS. It is designed for the protection of the tax-payer. Upington v. Oviatt, 24 0. St. 232. Assessment of non-abutting prop- erty. Where the statute provides for the assessment of abutting prop- erty, the assessment of property which does not abut although ben- efited by the improvement, makes the assessment invalid. Kelly v. Cleveland, 34 0. St. 468. Texas. Non-oompUance with charter pro- visions. Assessing each lot its propor- tion of the entire expense with- out regard to the actual esti- mated expense in front of it, the charter authorizing the assessment of one-third of the actual expense. Allen V. Galveston, 51 Tex. 302. Same — Improper consideration of benefits. Under a charter empowering the council to determine what streets should be improved and the method of payment, and if by the abutting owners, then according to the cost of the work in front 'of each lot, and providing for the making of assessment rolls fixing the liability on that basis, and for notice to persons interested to contest such assessment by peti- tion to the council, or they would be estopped from contesting the validity of the tax, such proceed- ings do not provide for a consid- eration of benefits by the council, nor estop the owner from testing the constitutionality of such as- sessment. Hutcheson v. Storrie, 92 Tex. 685, 45 L. E. A. 289, 71 Am. St. Eep. 884, 51 S. W. 848. Washington. Including vx>rh not ordered by council. Where the improvement ordered by the council called for paving' a 54 foot roadway the assessment therefor will be set aside when it includes the cost of sidewalks and curbing. McAllister v. Tacoma, 9i Wash. 272, 37 Pac. 447, 658. Wisconsin. Arbitrary addition to cost. Where the assessing board added fifty per cent to the estimated cost of the work to be done ia front of each lot, as benefits, and the lots so assessed were differ- ently affected by the improvement, there was a total failure of the exercise of the judgment of the board, and the assessment was void. Watkins v. Zwietusch, 47 Wis. 513, 3 N. W. 35; Johnson v. Milwaukee, 40 Wis. 315. Arbitrary assessment. Where an assessment of benefits for grading an alley charged each lot with as many dollars as it had frontage, and the total amount closely approximated the total cost, while opposite some lots was a deep cut, and opposite others filling was necessary, the assess- ment was an arbitrary one, based solely on the cost of the work, and therefore illegal and void. Kers- ten V. Milwaukee, 106 Wis. 200, 48 L. E. A. 851, 81 N. W. 948, 1103. For assessment, irregular, but not void. State v. Blake, 86 Minn. 37, 90 N. W. 5. For an unequal assessment, see State v. Passaic, 42 N. J. L. 524. For assessment not void on its face, Dyker, etc., Co. V. Cook, 159 N. Y. 6, 53 N. E. 690. As to sufBciency of as- sessment generally, under Illinois statute, see Walker v. Aurora, 140 111. 402, 29 N. E. 741. 608 CHAPTER XI. CONFIEMATIOIT OF THE ASSESSMENT ■ ■ DAMAGES. Confirmation — In general, 623. Application for confirmation, 624. Res judicata, 625. Judgment in, rem., 626. Objections to confirmation, 627. Insufficient proof of notice, 628. Jurisdiction to enter judgment, 629. Conclusiveness of judgment, 630. When judgment final, 631. Confirmation by common coun- cil, 632. Collateral attack, 633-634. Recital of jurisdictional facts, 635. Reversal of judgment — Prop- erty affected by, 636. Judgment of sale, 637-638. Validity of confirmation, 639. Damages — In general, 640. Determination of authorities on, 641. Liability for damages, 642. When city not liable, 643. Damages from change of grade, 644-649. Ordinance does not cause dam- age, 650. Damages for taking, 651-653. Measure of — In general, 654- 657. Measure of — Change of grade, 658-660. Measure of — Taking, 661. To whom damages belong, 662. Consequential damages, 663. Interest, 664. The jury, 665. View of premises, 666. Questions for jury, 667. Confirmation — In general. 623. After the completion of the assessment by the com- missioners, and before it becomes operative, it must be vital- ized by confirmation by the body appointed by statute for that purpose. In Illinois, it is the county court that is vested with this jurisdiction, but it is more commonly the common council of the city in which the improvement is be- ing made that is the special tribunal for this purpose. Application for confirmation. 624. An application for judgment of confirmation of a special assessment may also include delinquent general taxes, 39 609 § 625 THE LAW OF SPECIAL, ASSESSMENTS. but this is not necessary.^ In such application for the con- firmation of an assessment for water supply pipes, evidence to show that a certain private water company could be com- pelled to lay pipes in the territory subject to the assess- ment is not admissible.^ The loss of an order for classifica- tion by the commissioners of a drainage district is no valid objection to an application for judgment for delinquent as- sessments, such objection not going to the substantial justice or validity of the assessment.* !Nor is it a defense to such an application that the ordinance was invalid, or the work not done in accordance therewith, where the owner has had his day in court on the judgment for the assessment.* Res judicata. 625. Judgment of confirmation of an assessment which is aflBrmed on appeal is a bar to a second judgment under a new ordinance for the same improvement, although the for- mer ordinance be repealed.^ Upon the second trial of a cause, after a decision by the appellate court on an appeal from a former judgment, the doctrine of res judicata applies to all questions on which the court was actually required to form an opinion and pronounce judgment on the former ap- peal.® Where the ordinance under which a special assess- ment was levied is declared void, the judgment of confirma- tion is also void, and, there being no hearing on the merits, the determination of benefits thereunder does not constitute a bar to a larger assessment under new proceedings.'' iMcCauley v. People, 87 111. the hearing, see Gage v. Chicago, 123. 146 111. 499, 34 N. E. 1034. 2 Gordon v. Chicago, 201 111. sMcChesney v. Chicago, 161 111. 623, 66 N. E. 823. 110, 43 N. E. 702; Lehmer v. 3 Scott V. People, 120 111. 129, People, 80 111. 60i. 11 N. E. 408. 6 Cramer v. Stone, 38 Wis. 259. * Fisher v. People, 157 111. 85, 7 West Chi. Park Com'rs v. Chi- 41 N. E. 615. As to what ques- cago, 171 111. 146, 49 N. E. 427; tions are matters of law for the Schertz v. People, 105 111. 27; determination of the court upon People v. Fuller, 204 111. 290, 68 610 CONFIEMATIOir DAMAGES. §§ 626, 627 Judgment in Bern. 626. The judgment of the court confirming a special as- sessment is a judgment in rem, and is several against each tract of land for the amount finally assessed against it,® and a petitioner who makes a prima facie case in accordance with the statute is eatitled to a judgment of confirmation, in the absence of testimony overcoming the same.* Objections to confirmation. 627. A confirmation of a special assessment will in the absence of objections filed thereto be confirmed as a matter of course.^" A property owner who makes objections to the confirmation of a special assessment should file them in writ- ing, and if he fail to do so, the adverse party may obtain a rule requiring it to be done.-^^ Objection that the action N. E. 371; Gage v. Chicago, 193 III. 108, 61 N. E. 850; Chicago v. Nodeck, 202 111. 257, 67 N. E. 39. Benefits under judgment an en- tirety. A judgment against property for special assessment benefits is one in rem, against the property itself as an entirety and in a gross sum for all the benefits which will accrue to the fee in , remainder and the leasehold es- tate. The benefits cannot be ap- portioned. Chicago U. T. Co. v. Chicago, 204 111. 363, 68 N. E. 519. Jurisdiction. If an ordinance on which an ap- plication for a judgment of con- firmation is based contains suffi- cient allegations descriptive of the proposed improvement to chal- lenge the attention of the court, jurisdiction attaches in the court to judicially determine as to the legal sufficiency of the description; and the decision and judgment of the court thereon, however erro- neous, is not void, nor can it be attacked as for error in a collat- eral proceeding. Perry v. People, 206 111. 334, 69 N. E. 63. 8 Gibler v. Mattoon, 167 111. 18, 47 N. E. 319; Jones v. Lake View, 151 111. 663, 38 N. E. 688. A proceeding to confirm is a suit at law, although a proceeding in rem. In re Mt. Vernon, 147 111. 359, 23 L. R. A. 807, 35 N. E. 533. And confirmation should not be refused because the contract price is less than the estimate of the cost. Danforth v. Hinsdale, 177 111. 579, 52 N. E. 372. It is but one suit, regardless of the number of de- fendants; there is but one trial and one judgment, although the property is to be sold separately. People V. Gary, 105 111. 332. 9 Porter v. Chicago, 176 111. 605, 52 N. E. 318. 10 Mt. Carmel v. Friedrich, 141 111. 369, 31 N. E. 21. 11 Hervetson v. Chicago, 172 111. 112, 49 N. E. 992. 611 § 627 THE LAW OF SPECIAL ASSESSMENTS. of the commissioners was not " in compliance with the ordi- nance or the statute," is sufficient to bring before the court the action of the commissioners in making the assessment.^* Proof of the absence of a member of the board of revision does not sustain an objection that the assessment was not legally confirmed/* and evidence that different materials would be better for a street improvement, and less costly, is inadmissible.^* Where the court had jurisdiction to enter a judgment of confirmation of a special assessment, an objec- tion that the record shows the estimate of the cost of the im- provement was made prior to the passage of the ordinance will not be sustained on application for judgment of sale for delinquent installments.^^ On an application for a judg- ment of sale for a delinquent special tax, only such objec- tions can be heard or considered as affect the jurisdiction of the court to pronounce the judgment of confirmation.** 12 Jefferson Co. v. Mt. Vernon, 145 III. 80, 33 N. E. 1091. 13 7n re Merriam, 84 N. Y. 596. 1* Cram v. Chicago, 139 111. 265, 28 N. E. 758. Unless it be shown by the evidence that the improve- ment as constructed is wholly dif- ferent from that provided by the ordinance and contract, Downey V. People, 205 111. 230, 68 N. E. 807. 15 People V. Colvin, 165 111. 67, 46 N. E. 14. That the original plans were changed may be objected to on ap- plication to confirm the assess- ment, but is too late on application for judgment of sale. McManus V. People, 183 111. 391, 55 N. E. 886. Error in frontage. In a proceeding to confirm the assessment of a special tax upon contiguous property for paving a street upon the basis of the front- age of the property, a lot owner may show that his property as- sessed has a smaller frontage than that estimated by the commission- ers, and that therefore the assess- ment is too high. Green v. Spring- field, 130 111. 515, 22 N. E. 602. Rights of ovmers — Amount of benefit. On application to confirm a spe- cial assessment, the property own- ers assessed may by filing objec- tions to the confirmation raise the question whether their premises have been assessed more or less than they will be benefited, or more or less than their propor- tionate share of the cost of the proposed improvement. De Koven V. Lake View, 131 111. 541, 23 N. E. 240. 18 Hull V. People, 170 111. 246, 48 N. E. 984. 612 CONFIEMATIOM" 'ASSESSMENT. §§ 628, 629 Insufficient proof of notice. 628. Where the affidavit of mailing notice of application for confirmation of a special assessment is insufficient on its face to confer jurisdiction of the persons of those wiio did not appear, the judgment of confirmation will not conclude those property owners who did not appear, and such parties may show the want of jurisdiction on application for judg- ment of confirmation.^^ And such a judgment, though taken by default, will be reversed on appeal where the certificate of notice of assessment and final hearing shows an insuffi- cient publication,'* although a judgment of sale is not ren- dered void by the omission to include the jurisdictional clause contained in the statutory form of judgment that the court has obtained jurisdiction by giving the required notice, when jurisdiction is shown by a recital of the appearance of parties and a hearing of objections, the recital as to notice being necessary only when jurisdiction is obtained in that ler." Jnrisdiction to enter judgment. 629. Where the question of jurisdiction to enter judg- ment of confirmation is raised, the lack of jurisdiction must appear on the face of the record, and cannot be shown by extrinsic evidence f but where a judgment of confirmation is regular upon its face, the validity of the assessment cannot be collaterally attacked except for matters going to the juris- diction of the court to render the judgment.^' The court is without jurisdiction to confirm an assessment based on a IT Clark V. People, 146 111, 348, Goldstein v. Milford, 214 111. 528, 35 N. E. 60. 73 N. E. 758. isToberg v. Chicago, 164 111. 21 People v. 111. Cent. K. Co, 572, 45 N. E. 1010. 213 111. 367, 72 N. E. 1069; John- is Gage V. People, 213 111. 347, son v. People, 189 111. 83, 59 N. E 72 N. E. 1062; Young v. People, 515; Steenberg v. People, 164 111 171 111. 299, 49 N. E. 503. 478, 45 N. E. 970; Gross v. Peo 20 Thompson v. People, 207 111. pie, 172 111. 571, 50 N. E. 334 334, 69 N. E. 842; Walker v. Peo- Foster v. Alton, 173 111. 587, 51 pie, 202 111. 34, 66 N. E. 827; K E. 76; Glover v. People, 188 613 § 630 THE LAW OF SPECIAL ASSESSMENTS. void ordinance,^^ nor to enter a judgment confirming an as- sessment against property by the description contained in a plat which has never been recorded.^* Only objections going to the jurisdiction of the court to render a judgment of con- firmation are available on an application for a judgment of sale.'^* Conclusiveness of judgment. 630. Where the court has jurisdiction of the parties and the subject matter, a judgment of confirmation rendered by it concludes a property owner from afterwards questioning any of the proceedings had prior thereto unless they are so 111. 576, 59 N. E. 429; Yoving v. of special assessments for improv- People, 171 111. 299, 49 N. E. 503; Dickey v. People, 160 111. 633, 43 N. E. 606; Casey v. People, 165 111. 49, 46 N. E. 7. 22 American Hide & L. Co. v. Chicago, 203 111. 451, 67 N. E. 979. See, also, note 6, supra. 23 People V. Clifford, 166 111. 165, 46 N. E. 770. 2* People V. Clifford, supra; Kunst V. Kochersperger, 173 111. 79, 50 N. E. 168. Where the court has jurisdiction to render judgment confirming an assessment, the land owner is con- cluded from questioning any prior proceedings. Otherwise, if the prior proceedings be so defective as not to authorize the court to act at all. Shertz v. People, 105 111. 27. Waiver. All objections not made and urged at the time of the confirma- tion of the assessment roll will be deemed waived, and can not be urged on application for an order for sale of lands for a delinquent assessment. There is no differ- ence in this respect between cases ing streets and assessments under the drainage acts. Blake v. Peo- ple, 109 111. 504. Un/reasonaile ordinance. Where an ordinance, and the proceedings thereunder are grossly unreasonable, and clearly in ex- cess of the powers conferred, these defenses may be set up on an ap- plication to confirm the assess- ment. Bloomington v. C. & A. E. Co., 134 111. 451, 26 N. E. 366. Issue on hearing. The issue on the hearing of ob- jections to the confirmation of a special assessment is, whether the objector's property is assessed more than its proportionate share of the cost of the improvement, and not whether other specified property is benefited to a greater extent. To determine whether property is assessed more than its propor- tionate share in the cost of the improvement, the inquiry is, what proportion does the assessment on the objector's property bear to the assessment on all the lands, and not how does it compare with the 614 CONFIKMATIOIT ' DAMAGES. 630 defective as to render it void, or reversed or annulled in a direct proceeding.^° If the judgment is regular on its face, showing that every provision of the statute has been com- plied with, the court has jurisdiction to confirm the same, assessment on any specified or par- ticular property. Clark v. Chi- cago, 166 111. 84, 46 N. E. 730. Oonolusiveness of assessment. An assessment is conclusive un- til set aside by a direct proceed- ing for that purpose. Fuller v. Elizabeth, 42 N. J. L. 427. Under a charter which provides that, after the confirmation of the verdict of a jury that lands shall be taken, the common council shall determine what part, or that all, of the damages shall be assessed on owners or occupants deemed benefited, and the roll is then made out, reported and confirmed, such action is final and conclusive. Brown v. Saginaw, 107 Mich. 643, 65 N. W. 601. 25 Murphy v. People, 120 HI. 234, 11 N. E. 202; People v. Green, 158 111. 594, 42 N. E. 163; Pells V. People, 159 111. 580, 42 N. E. 784; People v. Markley, 166 111. 48, 46 N. E. 742; Hull v. Peo- ple, 170 111. 246, 48 N. E. 984. The confirmation of the report of commissioners is a, judgment and conclusive as to all questions •which might have been litigated therein, and an action to set it aside can only be maintained in ease of fraud or other circum- stances such as would authorize an action to set aside am ordinary judgment. Dolan v. Mayor, 62 N. Y. 472. Res judicata. Judgments of court of review sustaining the action of the trial court in overruling objections to application for judgment of sale for the first, second and third installments of a special assess- ment, are res judicata, in subse- quent applications on other iw- stallments, as to all questions raised and determined in the for- mer proceeding, or which were in- volved under the issue and might properly have been raised. Gross V. People, 193 111. 260, 61 N. E. 1012, 86 Am. St. Eep. 322; Lovell V. Long Island Drain. Dist., 159 111. 188, 42 N. E. 600. Same — Park 'purposes. When an assessment for park purposes has been made upon con- tiguous property, and the assess- ment confirmed by the circuit court, and the amount divided into yearly installments, upon applica- tion for judgment on the third yearly installment] it is too late to question the validity of the assessment, and it will be deemed res adjudioata. People v. Brislin, 80 HI. 423. Effect of reversal. A decision setting aside " both the proceedings and assessment," invalidates the entire assessment, and is not limited in its legal ef- fect to the prosecutors. Long Branch, etc. v. Dobbins, 61 N. J. L. 659, 40 Atl. 599 ; reversing S. 0. 59 N. J. L. 146, 36 Atl. 482. Ba/r of judgment on action prema- turely hrought. A judgment confirming an as- sessment in an application pre- 615 § 631 THE LAW OF SPECIAL ASSESSMENTS. and an objection not appearing of record, but made apparent from evidence alivnde, should be overruled.^® When judgment final. 631. A judgment of confirmation of an assessment is so far final that appeal on error will lie ; but upon application for sale, it will be considered a part of the same proceed- maturely brought, is not a bar to an application subsequently brought, after the cause of action has properly accrued. Brackett v. People, 115 111. 29, 3 N. E. 723. Over-aSaesament of benefits. It is too late, on application for judgment against lands for spe- cial assessments to insist that the property is not benefited to the amounts assessed thereon. The judgment confirming the assess- ment is conclusive upon the ques- tion, and cannot be attacked col- laterally. Andrews v. People, 83 111. 529; C. & N. W. E. Co. v. People, 83 111. 467 ; Andrews v. , People, 84 111. 28. Confirming park assessment. Where park commissioners seek confirmation of an assessment made by them under statutory powers, it is incumbent on them to show compliance with the law, under which they have derived the power to impose the special as- sessment or burden. Thorn v. West Chicago Prk. Comrs., 130 111. 594, 22 N. E. 520. Judgment by default. Where a judgment confirming a special assessment has been ren- dered by default, the rule that all except jurisdictional questions are waived, does not apply. Markley V. Chicago, 170 111. 358, 48 N. E. 952. Prima fade evidence of Benefits. A judgment of confirmation is prima facie evidence that the prop- erty assessed in both original and supplementary assessment was as- sessed as much as it was benefited by the improvement. Sheriffs v. Chicago, 213 111. 620, 73 N. E. 367. Former judgment as defense. On application for judgment of confirmation of an assessment, a former judgment of confirmation under a valid ordinance can be in- terposed as a defense. People v. Fuller, 204 111. 290, 68 N. E. 371; People v. MeWethy, 165 111. 222, 46 N. E. 187; McChesney v. Chicago, 161 111. 110, 43 N. B. 702; Chicago v. Nicholes, 192 111. 489; 61 N. E. 434. An order confirming an assess- ment has the force and conclusive- ness of a judgment. Mayer v. Mayor, 101 N. Y. 284, 4 N. E. 336. 20 People V. Illinois Cent. R. Co., 213 111. 367, 72 N. E. 1069. Cannot be collaterally attacked in mandamus proceedings by school authorities to compel pay- ment. Board of Education v. Peo- ple, 219 111. 83, 76 N. E. 75. G16 CONFIEMATION DAMAGES. §§ 632, 633 ing, and the court does not lose jurisdiction until dismissal or judgment of sale.*^ —— Confirmation by common council 632. The Washington statute governing reassessment pro- ceedings, and giving to the order of the common council con- firming such proceedings the conclusiveness of a judgment of a court, is a valid enactment,** but unless made so by statute is not conclusive.*' Collateral attack. 633. Judgments in local assessment proceedings have been uniformly placed upon the same basis and footing as judgments in ordinary tax proceedings. The jurisdiction of the court to render the judgment is presumed, and it cannot be collaterally attacked for defects in the proceed- ings anterior to the judgment, including defects which go to the jurisdiction of the city authorities to order the im- provement or initiate the proceeding. If it appear the court had jurisdiction of the subject matter, and acquired jurisdic- tion over the property owners as directed by the charter, the judgment rendered therein is valid, and any defense of the landowner as to prior irregularities, and which might have been urged at the hearing, is not subject to collateral attack unless subsequent proceedings have rendered the judgment void.^" 27 Kilmer v. People, 106 111. 529. ing, and to invoke the power of 28 Alexander v. Tacoma, 35 the courts to secure the right; Wash. 366, 77 Pac. 686. Brown v. Central Bermudez Co., 29 Chicago V. Burtice, 24 111. 162 Ind. 452, 69 N. E. 150. 489. Generally as to confirmation of The confirmation of engineer's assessments, see Lyman v. Gage, report by the council the same 211 111. 209, 71 N. B. 832; Audi- evening that a, special committee tor General v. Hoffman, 132 Mich, met, pursuant to notice, to give the 198, 93 N. W. 259. owners a hearing, cannot be said to Illinois. have prevented a hearing, as the so Clark v. People, 146 111. 348, owners had a right to go before 35 N. E. 60; Meadowcroft v. Peo- the council, and demand a hear- pie, 154 111. 416, 40 N. E. 442; 617 § 634 THE LAW OF SPECIAL ASSESSMENTS. 634. There is probably no general rule laid down in spe- cial assessment proceedings that is subject to as few excep- tions as this. Among the objections raised and overruled are the following: That the petition and proceedings were in- sufficient;^' that the organization of the drainage district was irregular;^* that the amount of the assessment exceeded the estimate of costs and expenses;** that the judgment of con- firmation, although not void, was erroneous f* that the bene- fits were too much;*^ that the assessment was irregular;*® West Chi. St. R. Co. v. People, 155 New Jersey. 111. 299, 40 N. E. 599; Perry v. People, 155 111. 307, 40 N. E. 468; West Chi. St. R. Co. v. People, 15d 111. 18, 40 N. E. 605; Kirchman v. People, 159 111. 321, 42 N. E. 883; Doremus v. People, 161 111. 26, 43 N. E. 701; People v. Eggers, 164 111. 515, 45 N. E. 1074; People v. Lingle, 165 111. 65, 46 N. E. 10; Hammond v. People, 169 111. 545, 48 N. E. 573; Hewes v. Glos, 170 111. 436, 48 N. E. 922; Young v. People, 171 111. 299, 49 N. E. 503; Berry v. People, 202 111. 231, 66 N. E. 1072; Chew v. People, 202 111. 380, 66 N. E. 1069; Perry t. People, 155 III. 299, 69 N. E. 63, 40 N. E. 599. Zndiomo. Stoddard v. Johnson, 75 Ind. 20 ; Ricketts v. Spraker, 77 Ind. 371; De Puy V. Wabash, 133 Ind. 336, 32 N. E. 1016; Boyce v. Tuhey, 163 Ind. 202, 70 N. E. 531. Mvnnegota. Hennessy v. St. Paul, 54 Minn. 219, 55 N. W. 1123; Duluth v. Dibblee, 62 Minn. 18, 63 N. W. 1117; St. Paul V. District Court, 51 Minn. 539, 53 N. W. 800, 55 N. W. 122; Hause v. St. Paul, 94 Minn. 115, 102 N. W. 221. Poilon V. Brunner, 66 N. J. L. 116, 48 Atl. 541. Oregon. Dowell V. Portland, 13 Ore. 248, 10 Pae. 308; Clinton v. Portland, 26 Ore. 410, 38 Pac. 407. Wastmigton,. New Whatcom v. Bellingham Bay Imp. Co., 16 Wash. 131, 47 Pae. 236; S. C, 18 Wash. 181, 51 Pac. 360; Heath v. McCrea, 20 Wash. 342, 55 Pae. 432; Annie Wright Seminary v. Tacoma, 23 Wash. 109, 62 Pac. 444; McNamee V. Tacoma, 24 Wash. 591, 64 Pac. 791 ; Potter v. Whatcom, 25 Wash. 207, 65 Pac. 197; Tacoma, &c. Co. V. Sternberg, 26 Wash. 84, 66 Pac. 121; Lewis V. Seattle, 28 Wash. 639, 69 Pac. 393; Alexander v. Tacoma, 35 Wash. 366, 77 Pac. 686. 51 Kimball v. Kochersperger, 160 111. 653, 43 N. E. 710. 52 Tucker v. People, 156 111. 108, 40 N. E. 451. 33 Hammond v. People, 169 111. 545, 48 N. E. 573. 34 People V. Eggers, 164 111. 515, 45 N. E. 1074. 35 Wray v. Fry, 158 Ind. 92, 62 N. E. 1004. 36 Davies v. Lake Shore & M. S. 618 CONFIEMATION' DAMAGES. § 635 that the local authorities improperly accepted a public im- provement, no fraud being alleged f^ the insufficiency of the record in a proceeding to fix a grade f^ that the assessment was not made in the name of the owners f^ that a city had agreed to exempt certain property from the assessment for benefits ;*" that the jury sent to view the premises to be con- demned were not sworn in the statutory form;*^ that the board of assessment declined to award the property owner a hearing, or refused to receive and consider the evidence of- fered the prima facie test fixed by statute, in the first in- stance, for the benefits to his property;*^ that the judgment for damages was improper and insufficient;*^ that the ordi- nance authorizing the improvement was insufficient;** that the assessment was inadequate to pay. the costs of the im- provement ;*^ that the proper method for the construction of sewers was not adopted.*® Recital of jurisdictional facts. 635. The recital in the judgment of such jurisdictional facts as the posting, publishing and mailing of notices, is a finding by the court, and conclusive against collateral at- tack.*^ An equalization board, when properly in session, E. Co. 114 Ind. 364, 16 N. E. 639. <* Perry v. People, 155 111. 299, sTDuniway v. Portland (Ore.), 40 N. E. 599. 81 Pac. 945. *» Potter v. Whatcom, 25 Wash. 38 Wingate v. Astoria, 39 Ore. 207, 65 Pac. 197. 603, 65 Pae. 982. *« Boyee v. Tuhey, 163 Ind. 202, 39 Clinton v. Portland, 26 Ore. 70 N. E. 531. 410, 38 Pac. 407. " West Chi. St. E. Co. v. Peo- loVrana v. St. Louis, 164 Mo. pie, 155 111. 299, 40 N. E. 599; 146, 64 S. W. 180. Young v. People, 171 111. 299, 49 41 Goodrich v. Detroit, 123 Mich. N. E. 503. 569, 82 N. W. 255. Judgment of confirmation cannot *2 Hibben v. Smith, 158 Ind. 206, be collaterally impeached by show- 62 N. E. 447. ing the afiidavit of mailing of no- 43 Brown v. Saginaw, 107 Mich, tices was untrue in fact, and that 643, 65 N. W. 601; Borgman v. the notice stated the amount of the Detroit, 162 Mich. 261, 60 N. W. assessment incorrectly. Meadow- 696; Seotteu v. Detroit, 106 Mich. croft v. People, 154 111. 416, 40 N. 564, 64 N. W. 579. E. 442. 619 § 635 THE LAW OF SPECIAL ASSESSMENTS. with due notice given, acts judicially, and its action within its jurisdiction is as conclusive as that of a court.** An assessment for sewer construction being within the jurisdic- tion of the city council, it cannot be declared void in a col- lateral attack to quiet the title to land sold for an assess- ment, unless it appears there was no authority over the par- ticular improvement ordered, or the particular property assessed.*® Where a public improvement, such as usually conveys with it both benefits and damages, is laid upon land under the right of eminent domain, the compensation of the owner is determined, in the absence of a statute for- bidding it, by taking into account both the benefits and dam- ages; and where in such case benefits have been assessed against property, it will be conclusively presumed as against collateral attack that the damages, if any, have been esti- mated and deducted from the aggregate amount of benefits.^" All questions affecting assessment proceedings, not going to the jurisdiction of the municipality to make the assessment, must be taken before the city council on the hearing pend- ing the confirmation of the assessment proceedings by that body, where the statute so requires, and appealed therefrom to the courts, before the courts have authority to inquire as to mere error therein. ''^ And it follows, as a converse of The recital in a default judg- *» Jackson v. Smith, 120 Ind. ment of confirmation that the com- 520, 22 N. E. 431. missioners " have complied with oo Gas Light Co. v. New Albany, all the requirements of the law 158 Ind. 268, 63 N. E. 458. as to posting a consent and no- oi Lewis v. Seattle, 28 Wash, tices to the owners of property as- 639, 69 Pac. 393. And see, New sessed," etc., will sustain such Whatcom v. Bellingham Bay Imp. judgment against a collateral at- Co., 16 Wash. 131, 47 Pac. -236; tack in an application for judg- Same v. Same, 18 Wash. 181, 51 ment of sale for the delinquent Pac. 360; Heath v. McCrea, 20 assessment, based on the insu£S- Wash. 342, 55 Pac. 432; Annie ciency of such notice. Kirchman Wright Seminary v. Tacoma, 23 V. People, 159 111. 321, 42 N. E. Wash. 109, 62 Pac. 444; McNamee 883; Perry v. People, 155 111. 307, v. Tacoma, 24 Wash. 591, 64 Pac. 40 N. E. 468. 791; Potter v. Whatcom, 25 Wash. 18 Portsmouth Sav. Bk. v. Oma- 207, 65 Pac. 197; Tacoma, See. Co. ha, 67 Neb. 50, 93 N. W. 231. v. Sternberg, 26 Wash. 84, 66 Pac. 620 COWFIEMATION DAMAGES. §§ 636, 637 the proposition just established, that when the action of a municipal corporation in levying a special assessment is abso- lutely void, the proceedings are subject to collateral attack.®^ — ^ Reversal of judgment — Property affected by. 636. In Illinois, by express statutory enactment, a judg- ment of confirmation has the effect of a several judgment as to each lot or parcel of land assessed, and a reversal of such judgment has no effect upon other pieces of property not included in the appeal.^' — — Judgment of sale. 637. A judgment of sale for unpaid installments of a special assessment must refer to the tracts contained in the delinquent list which precedes the judgment, or by setting out in the judgment a particular description of the tracts against which it is entered, or proper reference to the list for amount due, or it is void.^* It must be certain in amount, and is defective where there are no characters to indicate what the columns of numerals represent, or are designed for, where there is no reference therein to the de- linquent list or anything in the record from which it can be said they stand for dollars and cents, and where the judg- ment does not, either in terms or by reference, find or state the several amounts for which it was rendered.®^ Objec- 121; Alexander v. Taeoma, 35 A judgment of sale simply •Wash. 366, 77 Pae. 686. marked " O. K.," and signed with B2 Kline v. Taeoma, 11 Wash, the initials of the county judge, ia 193, 39 Pac. 453. not signed as required by the stat- 53 Kelly V. Chicago, 148 111. 90, ute. Gage v. People, 219 111. 20, 35 N. E. 752; Phelps v. Mattoon, 76 N. E. 56. The absence of the 177 111. 169, 52 N. E. 288; Chi- dollar mark therein is fatal. Id. cago V. Nodeck, 202 111. 257, 67 N. Judgment of sale. E. 39; Goldstein v. Milford, 214 Want of notice appearing on the 111. 528, 73 N. E. 758; Harman v. record will defeat application for. People, 214 111. 454, 73 N. E. 760. Phillips v. People, 218 111. 450, 54 Gage V. People, 207 111. 615, 75 N. E. 1016. 69 N. E. 635. Application for judgment. 55 Gage V. People, 213 111. 347, The collector's report with proof 72 N. E. 1062. of publication and notice of appli- 621 §§ 638, 639 THE LAW OF SPECIAI, ASSESSMENTS. tions of a nature to annul the judgment of confirmation and defeat the assessment may be made upon application for judgment of sale, if the facts upon which they are based have arisen since the judgment of confirmation.®* 638. An application for a judgment and order of sale for an unpaid special assessment is an independent proceeding, and all matters preceding such application are res judicata, and not open to investigation.®^ The failure of a special assessment to state the nature, character, locality and de- scription of the improvement is not a proper defense in an application for judgment of sale for a delinquency, unless the failure to comply with the statute in that regard is so great as to render the ordinance absolutely void.®® Validity of Confinnation. 639. A statutory provision requiring a special assess^ ment to be completed and confirmed within four months after receiving an order to condemn, is mandatory, and jurisdic- tion is lost if the assessment be not confirmed within that time.®* An agreement between a city and objecting prop- erty owner that the objector shall allow the assessment to be confirmed, and that in case the contract price of the im- cation for judgment of sale, makes were not of the size called for; a prima facie case in Illinois. Peo- People v. Bridgeman, 218 111. -SeS, pie V. Lyon, 218 111. 577, 75 N. E. 75 N. E. 1057. Sidewalk a few 1017. See, also, Sedalio v. Mont- inches shorter than called for, and gomery (Mo. App.), 88 S. W. 1014. some people thought the stone too Notice of delinquency or demand soft; Marshall v. People, 219 111. for payment must be shown on 99, 76 N. E. 70. application for sale. Marshall v. ^s People v. Whidden, 191 111. People, 219 111. 99, 76 N. E. 70; 374, 56 L. E. A. 905, 61 N. E. Nowlin V. People, 216 111. 543, 75 133. N. E. 209. In Indiana, notice may bt Lehmer v. People, 80 111. 601 ; be either verbal or written. Eoss Gage v. People, 213 111. 410, 72 N. V. Van Natta, 164 Ind. 557, 74 N. E. 1084. E. 10. 68 People v. Eyan, 156 111. 620, The following objections cannot 41 N. E. 180; Walker v. People, be urged on application for judg- 169 111. 473, 48 N. E. 694. ment of sale: That cobblestones so State v. District Court, 75 Minn. 292, 77 N. W. 968. 622 COlfPIEMATION' DAMAGES. § 640 provement is less than the connnissioners' estimate, or judg- ment against his lot shall be vacated, and judgment for the exact amount entered, does not invalidate the assessment.®** Eut the city must act in good faith after the confirmation of the assessment, as well as before. After a special assess- ment has been regularly confirmed and contract let to one who has agreed to look solely to such assessment for his pay, the city cannot stay further proceedings on the improve- ment by order, as that would impair the obligation of the contract.®^ But the passage of an ordinance directing the stay of proceedings of a special assessment for a year will not prevent judgment enforcing such assessment against the lot owner, where the council subsequently directs the letting of contracts and proceeds under the same judgment of con- firmation.®^ And an ordinance for a pavement 53 feet wide, passed after the confirmation of an assessment made pur- suant to a prior ordinance for. a pavement on the same street 61 feet wide, is an abandonment of the former pro- ceeding and requires new estimate, levy of assessment and confirmation.®* DAMAGEiSl In General. 640. In their anxiety to improve the cities under their respective charge without trenching on the public funds, but having in mind what easy prey the average landowner is, the system of special assessment is especially attractive to public officers having charge of public improvements. They en- large greatly upon the subject of benefits, while touching very lightly on the momentous question of damages. Al- so Billings V. Chicago, 167 111. The intentional act of a city in 337; 47 N. E. 731. assessing owners for paving part 81 Clingman v. People, 183 111. of a street which a railroad com- 339, 55 N. E. 727. pany was legally bound to pave is • 62 Wisner v. People, 156 111. 180, a fraud against such owners. Chi- 40 N. E. 574. cago v. Nodeck, 202 111. 257, 67 N. 83 Pells V. People, 159 111. 580, E. 39. 42 N. E. 784. 623 § 641 THE LAW OF SPECIAL ASSESSMENTS. though very eminent authority has held that the board of public works of a city, acting under the sanction of an offi- cial oath, is a fair and impartial tribunal to assess damages caused to private property by a public improvement,''* yet from a practical standpoint this statement is certainly open to criticism. Public officials naturally side with the corpora- tion whose money pays them, and it is essential to a proper administration of justice that the courts should scrutinize the questions as to damages that constantly arise with at least as great care as any question that comes before them under this system. Determination of authorities on. 641. The determination of the city authorities as to whether property is damaged or not, is not conclusive upon the property ovwier. He is entitled to his day in court to obtain in an appropriate action at law all such special dam- ages to his property, contra-distinguished' from damages he suffers in common with the public, as will be occasioned by the proposed improvement.®" He is entitled to the dam- ages ascertainable by and imder the rules- of law, and not those which too parsimonious officials may feel it their duty to award. Where there is a total disregard of statutory pro- visions regarding a special assessment, it is in law a sub- stantial error, making it unnecessary for thg party complain- ing to show actual damage.** Abutting owners have the right appurtenant to their property of access to it over the adjacent streets and alleys, and this right is as inviolate as the right to the property itself.*'' Under a constitutional provision against taking or damaging private property for public use without just compensation, recovery may be had in all cases where private property has sustained a substantial 6* State V. Oshkosh, 84 Wis. 548, «« In re Emigrant Ind. Sav. Bk., 54 N. W. 1095. 75 N. Y. 388. 65 Parker v. Catholic Bishop, «? Sherlock v. Kansas City B. E, 146 111. 158, 34 N. E. 473. Co., 142 Mo. 172, 64 Am. St. Rep. 551, 43 S. W. 629. 624 COIiTFIEMATIOH' DAMAGES, § 64:2 injury from a public improvement, whether the damages are direct in their nature, as when caused by a trespass or some physical invasion of the property, or are merely conse- quential as in a decrease in market value.*® A charter pro- vision requiring damages to be ascertained before ordering a street to be graded is mandatory.®* Where a property owner erects a house upon his lot after the confirmation of a plan fixing the grade of the street, he can recover for injury done by the grading to the land, but not for injury done to the house.'''' And if the injury can be shown to have been the result of the negligence or unskillfulness of the city or its em- ployees in performing the work, then an action will lie, and the party injured will be entitled i» damages.''^ If the grade of a street has been changed by the city without authority, the lot owner who suffers injury because of such change is not debarred by mere silence from recovering his damages.''* Liability for damages. 642. The doctrine is well settled that municipal corpora- tions, acting under authority conferred by the legislature to make and repair, or to grade, level and improve streets, if they exercise reasonable care and skill in the performance of the work, are not answerable to the adjoining owner for consequential damages to his premises.'* But where prop- erty fronting on a public street is damaged by the method or manner adopted by the authorities in permanently grad- 68 Chicago V. Taylor, 125 U. S. support to such a degree that 161, 31 L. ed. 638j 8 Sup. Ct. Kep. buildings and improvements there- 820. on suffer injuries to which their 89 John V. Connell, 61 Neb. 267, own weight has not contributed, 85 N. W. 82. damages may be recovered there- to Groff V. Philadelphia, 150 Pa. for. Parke v. Seattle, 5 Wash. 1, St. 594, 24 Atl. 1048. 20 L. R. A. 68, 34 Am. St. Eep. 71 Wegmann v. Jefferson, 61 Mo. 839, 31 Pac. 310, 32 Pac. 82. 55. 'zjorgensen v. Superior, 111 Where a municipal corporation Wis. 561, 87 N. W. 565. in grading a street so negligently '3 Drummond v. Eau Claire, 85 excavates the earth that the abut- Wis. 556, 55 N. W. 1028. ting land is deprived of lateral 40 625 § 642 THE LAW OF SPECIAL ASSESSMENTS. ing such street, the corporation is liable to the owner of such property for the damages.'^* A city may be liable for dam- ages caused by the grading of a street, even though done in accordance with the provisions of a grade ordinance, if there- by the natural drainage is destroyed, and no adequate means is provided for the escape of surface water.^*" It cannot avoid liability to an abutting owner for the removal of shade trees in the street in front of his property, on the ground that they were a nuisance and obstructed travel, where it as- sumed to act under invalid proceedings to fix a grade f^ and is liable for the loss caused by a destruction of the lateral support of the land adjoining his lot, even before the adop- tion of the constitutional provision requiring compensation for " damaging " private property.''^ It is liable for dam- ages caused to plaintiff's property by grading a street just as a private owner is, and the right to inflict damage beyond that which a private owner might have inflicted without lia- bility does not exist. A city is authorized to grade, but without exercising the right of eminent domain is not au- thorized to encroach on private property when so doing. It cannot excavate to the full width of a street on a side hill, placing the slope thereof on adjoining lots, to their injury or impairment. ''* Where the improvement is of such an ex- traordinary character as to peculiarly and seriously injure the property of adjoining owners, instead of making them do the work at their own expense, it should not be done at all without compensation to them. There is no hardship in such a rule, for if the improvement is of great public util- T4 Omaha v. Flood, 57 Neb. 124, rrDyer v. St. Paul, 27 Minn. 77 N. W. 379. 457; Parke v. Seattle, S Wash. 1; 7B Ellis V. Iowa City, 29 la. 229; Washburn on Easements, Ch. 4, Ross V. Clinton, 46 la. 606, 26 Am. Sec. 1. Rep. 169 ; Morris v. Council Bluffs, 78 Munger v. St. Paul, 57 Minn. 67 la. 343, 56 Am. Rep. 343, 25 9, 58 N. W. 601; Damkoehler v. N. W. 274; Wilbur v. Fort Dodge, Milwaukee, 124 Wis. 144, 101 N. 120 Iowa, 555, 95 N. W. 186. W. 706. 78 Blanden v. Fort Dodge, 102 la. 441, 71 N. W. 411. 626 CONFIBMATIOHT DAMAGES. § 642 ity, it will not be an onerous burden for the public to bear ; and if the damages are great, they should not be imposed on the individual proprietors.^® A paving contractor who unnecessarily destroys or takes up shade trees is liable in damages to the owner of the property.®" A city authorized to construct a levee to reclaim lands subject to overflow, con- structed it across half of plaintiff's land abutting a river, narrowing the channel, and refused to continue the levee along that portion of the land which was low and subject to overflow. The city was held liable for the damages caused by the compressed and accumulated waters of the river overflowing such low banks in time of freshet.®^ ■rs Lot-ownera in cities may be presumed to have purchased in contemplation of the power of lo- cal authorities to make such im- provements as are ordinary and useful, at their own expense; but when the improvements are of an extraordinary character, and so peculiarly injurious to the pro- prietors as to result in a greater or less deprivation of the use of their property, such improvements should not be made without com- pensation. Louisville v. Louis- ville R. M. Co., 3 Bush, 416, 96 Am. Dec. 243. 80 New Orleans v. Wire, 20 La. Ann. 500. 81 Plaintiff did not waive his claim for damages by having fa- vored the work, by oflfering to give the right of way for the levee, or by refusing to give such right of way until the levee was so ex- tended as to protect his low lands. Barden v. Portage, 79 Wis. 126, 48 N. W. 210. Special ienefitS — ■ Meaning of term. " The term ' special benefits ' implies benefits such as are con- ferred specially upon private prop- erty by public improvement, as distinguished from such benefits as the general public is entitled to receive therefrom. ... If the improvement should result in an increase in the value of ad- jacent property, which increase is enjoyed by other adjacent prop- erty owners, as to the property of each exclusively, the benefit is special, and it is none the less so because several adjacent owners derive, in like manner, special benefits, each to his own individ- ual property. Such fact, if it exists, in no respect decreases the increment in value enjoyed by one of the adjacent property own- ers, and by way of offset such an increment should therefore be treated as a special benefit in favor of whomsoever it may arise." Eyan, J., in Kirkendall v. Omaha, 39 Neb. 1, 57 N. W. 752. Verdict where benefits less than damages. On application to confirm a special assessment, the jury should 027 § 643 THE LAW OF SPECIAL ASSESSMElfTS. When city not liable. 643. The taking of an alley for a street cannot be said to damage abutting property, as the street will furnish the same access to the lots as the alley.*^ The lot owner is not entitled to damages for fallen fences, or grading a lot to make it conform to the grade of the pavement.*^ No remedy exists at common law to recover for injury and damage to abutting property caused by bringing streets into conform- ity with an established grade. Such liability is wholly stat- utory. But after a street grade has been duly established, the actual work of doing the grading without a resolution directing such work to be done, creates no new liability to an abutting owner, and the council may subsequently ratify the work already done.** Where a city, in changing the grade of a street, confines the improvement to the boundary of the street, and interferes with no private rights of air, light or access, the incidental injury to the lot-owners would be of that class of misfortunes for which no remedy is afforded by law.*^ A city is not liable for any damages occasioned not in case they find the benefits But in ordinary actions to re- to the land to be less than the cover damages for trespass upon assessment thereof render a gen- the land of the plaintiff, the in- eral verdict for the defendant, but jury is a wrong which is to be they should be required to report compensated by allowing the ac- by their verdict the amount of tual damage sustained by plaintiff benefits as found by them. I. C. up to the time suit was brought. R. Co. v. Chicago, 141 111. 509, This compensation is ascertained 30 N. E. 1036. by proving the precise and actual Verdict less than evidenoe — Not damage done by defendant to set aside on appeal. plaintiff's land. McGrettigan v. In an action against a city Potts, 149 Pa. St. 159, 24 Atl. authorizing a lot owner to recover 198, op. damages for the change of an es- 82 Fagan v. Chicago, 84 111. tablished grade, where witnesses, 227. whom the jury were at liberty to 83 Greensburg v. Young, 53 Pa. believe, have given evidence as to St. 280. plaintiff's damages estimating siReilly v. Fort Dodge, 118 them at a sum greater than the la. 633, 92 N. W. 887. verdict, it will not be set aside on ss Louisville v. Louisville E. M. appeal as excessive. Church v. Co., 3 Bush, 416, 96 Am. Dee. 243. Milwaukee, 34 Wis. 66. 628 COISTFIEMATIOIT DAMAGES. § 644 to an abutting property owner by cutting down the street in front of his premises, when done for the purpose of bring- ing the street to an established grade, which grade can be established only by a valid ordinance.*® Where a village took the steps necessary to authorize it to build a certain sidewalk, and the lot owner having refused to build the walk, the doing of the work by the village before the time at which it was permitted by charter to do it, is at most a technical trespass, for which only nominal damages may be recovered by the lot-ovmer, no actual damage being shown.*'' - — Damages from change of grade. 644. A statute authorizing the recovery of damages to improved property by reason of a change of grade, should be liberally construed. The improvement of a lot " accord- ing to the grade " of the adjacent street does not require that the foimdations of buildings erected thereon shall be exactly at grade, or at any invariable elevation above or below it. Property is improved according to the established grade, within the meaning of the statute, whenever it is so im- proved that it can be comfortably and conveniently used for the purpose to which it is devoted while the street upon which it abuts is maintained at that grade. For any change in such established, the owner is entitled to recover dam- ages.*® The damages caused an abutting lot by a change of grade are complete when the grade is changed, and do not 86 Markham v. Anamosa, 122 tied to recover only nominal dam- Iowa, 689j 98 N. W. 493; Mil- ages, and upon such recovery lard V. Webster City, 113 la. 220, would be compelled to pay de- 84 N. W. 1044; Eckert v. Wal- fendant's costs, a judgment of nut, 117 la. 629, 91 N. W. 929; non-sUit will not be reversed. Reilly v. Fort Dodge, 118 la. 633, Benson v. Waukesha, 74 Wis. 31, 92 N. W. 887; Wilbur v. Fort 41 N". W. 1017. Dodge, 120 la. 555, 95 N. W. 186. ss Stevens v. Cedar Rapids Nonsmt — Nominal damages — (la.), 103 N. W. 363; Conklin Appeal. V. Keokuk, 73 la. 343, 35 N. W. 8T Where the plaintiil is enti- 444. 629 §§ 645-647 THE LAW OF SPECIAL ASSESSMENTS. depend upon the subsequent use of the lot*^ For an un- lawful change in the grade of a street a city is liable to the owner of abutting property for all damage directly and proximately caused thereby, without reference to any result- ing benefit^" 645. Statutes allowing the benefits resulting to a land- owner from the construction of highways across his land to be offset against the value of the land taken to make such improvements, and the injury done to his adjoining lands, and providing that if the benefits exceed the damages, the balance shall be assessed upon his land — are valid as an ex- ercise of the taxing power. ^* 646. Where abutting property is damaged by change of street grade and afterward it and all other property on the street increases in value from other reasons than the change of grade, until the value of the property in question is equal to what it was before the change, the latter fact will not preclude the owner from recovering damages.®^ Damages may be recovered in a case where abutting property is in- jured by grading done in a street where no grade has been legally established.*^ 647. A plaintiff's claim for damages because of change 89 Eachus V. Los Angeles, etc., ment made in 1888 cannot be Co. 103 Cal. 614, 42 Am. St. Rep. levied against him for benefits sup- 149, 37 Pae. 750. posed to accrue to the same house 90 Drummond v. Eau Claire, 85 and lot from the same alteration. Wis. 556, 55 N. W. 1028. The first adjudication, that the In trespass quare clausum, the premises are damaged by the plaintiff may be entitled to eonse- change, concludes both parties, quential damages. 3 Sedgwick while it stands. Davis v. New- on Damages, See. 927. ark, 54 N. J. L. 595, 25 Atl. 336. 91 Holton V. Milwaukee, 31 Wis. In this case the court permitted 27. the charge for curbing and flagg- 92 Cole v. St. Louis, 132 Mo. ing to stand, as being legitimate 633, 34 S. W. 469. subjects for assessment, and out- Where under a city charter an side of the grading proper. Id. award has been made to an own- p. '597. er for damages caused to his house 93 Richardson v. Webster City, and lot by the alteration of a 111 la. 427, 82 N. W. 920. street grade in 1873, an assess- 630 CONFIEMATION ^DAMAGES. § 648 of a previously established grade of a street is not released because he had signed a petition for a change when the new grade actually adopted was lower than that petitioned for.** An ordinance providing for a change of grade, although passed and approved before a new charter went into effect, was published afterwards, and the liability of the city for .damages caused by such change is governed by the provisions of the new charter.®® 648. The use to which a street might be put after a change of grade does not affect the damage caused by such change of grade ; and the fact that it might receive a benefit from the construction and operation of a railway thereon is immaterial on the question of damages.®^ A city is liable for an unauthorized change of grade which causes surface water to accumulate on an abutting lot, or discharges water from the sewers into the basement of a building.®^ It is no objection that under a charter provision making the city liable to any lot owner for damages caused by a change of an established grade, that the ovsTier did the work himself in an obedience to an order duly made by the proper offi- 'cers.®^ If a statute permits the recovery of damages result- ing from an authorized change of grade of a street, and pro- vide specific means for recovering it, other than an ordinary civil action, the statutory remedy is exclusive.^^ But an action at law will lie against a city for injuries to property caused by an unauthorized grading of the street.^ And un- der a charter provision allowing damages for cutting and filling caused by a change of grade, it is only when it be- comes necessary, by reason of the altered grade, to change 0* Luscombe v. Milwaukee, 36 98 Pearce v. Milwaukee, 18 Wis. Wis. 511. 429. 9B Smith V. Bau Claire, 78 Wis. »» Dore v. Milwaukee, 42 Wis. 457, 47 N. W. 830. 108; Owens v. Milwaukee, 47 Wis. 96Eachus V. Los Angeles, etc. 461, 3 N. W. 3. E. Co., 103 Cal. 641, 37 Pac. 648. iMeinzer v. Racine, 68 Wis. 87 Elgin V. Kimball, 90 111. 356; 241, 32 N. W. 139, S. C. 70 Wis. Addy V. Janesville, 70 Wis. 401, 561, 36 N. W. 260; Dore v. Mil- 35 N. W. 931. waukee, 42 Wis. 108. 631 649 THE LAW OF SPECIAL ASSESSMENTS. the surface of the premises, either by cutting or filling, to adjust them to the new grade, that the cost of such change of surface is to be considered in the estimate of damages.^ Under a charter providing that no street shall be graded without a recommendation in writing signed by a majority of the resident owners of property situate thereon, the grad- ing of the street by order of the council withonit such a rec- ommendation renders the city liable to a lot owner for injury to his lot from such grading.* 649. Damages are not recoverable for a change of grade merely ordered, and not made.* One who purchases a lot on a street having an established grade, and makes improve- ments with reference to the natural grade, cannot recover damages resulting to the improvement by the street being worked to the established grade.^ A provision in a former -charter making the city liable for damages caused by a 2 Tyson v. Milwaukee, 50 Wis. 78, 5 N. W. 914; Church v. Mil- waukee, 31 Wis. 512; Stowell v. Milwaukee, 31 Wis. 523. 3 Crossett v. Janesville, 28 Wis. 421. 4 Tyson v. Milwaukee, 50 Wis. 78, 5 N. W. 914. And where a change by raising an established grade was ordered in 1864, and not made; and in 1872 the grade was again changed and raised, the person who at the lat- ter date owned the property ef- fected, and also owned it later when the change was actually made, was entitled to the whole damage. Id. A statute which declares that when a street grade has once been established, and abutting property improved in accordance therewith, and such grade is thereafter al- tered so as to injure the abutting property so improved, does not apply to a case where the abutting owner improved his property with- out reference to the established grade, and he is entitled to no damages by the filling of the street to the new grade. Reilly v. Fort Dodge, 118 Iowa, 633, 92 N. W. 887. Under a charter giving the owner of land affected by a change of grade of any street a right to compensation therefor, where such change was made after a perma- nent grade had been established, and " after such street shall have been actually graded to such es- tablished grade," the actual grad- ing of the street to the grade first established is a condition precedent to the right to recover damages occasioned by the change. Walish V. Milwaukee, 95 Wis. 16, 69 N. W. 818. 5 Omaha v. Williams, 52 Neb. 40, 71 N. W. 970 , 632 CONFIEMATION DAMAGES. 649 change of the street grade, is inconsistent with and repealed by a new charter which contains no such provision and which repeals all acts or parts of acts inconsistent therewith.^ 6 Smith V. Eau Claire, 78 Wia. 457, 47 N. W. 830. Grading several years after assess- ment. " Where the grading occurs as a separate act of the public authori- ties, and so long after the open- ing of the street that the assess- ment of damages at the time of the appropriation, cannot include those resulting from the grading, the latter may be ascertained by a second view." Pusey v. Al- legheney City, 98 Pa. St. 522. Liability for, under ordinance. Where a common council fixed the grade of a street by an ordi- nance which also provided that in case any buildings were erected on such street by any person that the faith of the city was pledged that the grade should not be al- tered to the injury of such per- son, and five years later a subse- quent ordinance lowered the grade twenty feet, the city was held liable for the damage caused by the change. Goodall v. Milwau- kee, 5 Wis. 32. Opinion of witness as to benefit or In an action against a city un- der its charter for damages caused by a change of grade, a question asked of defendant's witnesses as to whether plaintiff's property was injured or benefited by such grading, is, in that form, inad- missible. Church V. Milwaukee, 31 Wis. 513. J'adlure of city to fix all grades. A city charter (in 1852) re- quired the council to make a sur- vey of the streets, etc., and, as soon as practicable thereafter, to cause the grade of all streets to be established, and cause profiles thereof to be made and filed, etc., and provided that should the grade so established be afterward altered, the city should be liable to lot owners for resulting dam- ages. In 1853, and again in 1861, special ordinances were passed, fixing the grade on a certain street, and requiring lot-owners to pave upon such grade. It was held that the city was liable to a lot-owner for injuries to his lot resulting from a subsequent change of grade, though it had never complied generally with the charter by fixing the grade of all streets. Goodrich v. Milwaukee, 24 Wis. 422. Proof necessary to establish change of grade. In an action against a city un- der its charter, for damages caused by a change of grade of a street, proof of the passage of the various ordinances first establish- ing the grade and then changing it, with paintiff's testimony that he graded the street in each case to conform to such ordinances, and that the grading was done, in each case, under the superintend- ence of the city engineer, is suffi- cient, without showing by the rec- ord any order of the common council to execute the grade, or any other proceedings required by the charter. Church v. Milwau- kee, 31 Wis. 512. 633 5§ 650, 651 THE LAW OF SPECIAL ASSESSMENTS. Ordinance does not cause damage. 650. The mere passage of an ordinance providing for change of grade of a street is not of itself sufficient to give rise to an immediate cause of action on the part of an abut- ting property o'wner, the reason for the rule being that the passage of the ordinance causes no injury, and the city may never attempt to carry it out by actually changing the level of the street.^ And although the owner's right of action does not accrue until the ordinance providing for the change is followed by a physical change in the street surface, yet such owner may change his premises to correspond to such newly established grade before the actual physical change, and bring his action after the change is actually made.* Damages for taking. 651. The rule of damages for property taken under the power of eminent domain is well settled, and under this 7 Hempstead v. Des Moines, 63 la. 36, 18 N. W. 676; Stritesky v. Cedar Rapids, 98 la. 373, 67 N. W. 271; Buacr v. Cedar Rapids, 115 la. 685, 87 N. W. 404; York V. Cedar Rapids (la.), 103 N. W. 791. 8 Stevens v. Cedar Rapids (la.), 103 N. W. 363; Conklin v. Keo- kiik, 73 la. 343, 35 N. W. 444; Ogden V. Philadelphia, 143 Pa. St. 430, 22 Atl. 694; Jones v. Bangor, 144 Pa, St. 638, 23 Atl. 252; O'Brien v. Philadelphia, 150 Pa. St. 589, 30 Am. St. Rep. 832, 24 Atl. 1047; Bush v. Keesport, 166 Pa. St. 57, 30 Atl. 1023; Dicker- man V. N. Y., N. H. & H. R. Co., 72 Conn. 271, 44 Atl. 228. See, also, Walish v. Milwaukee, 95 Wis. 16, 69 N. W. 818. " The damage sustained by the plaintiffs was caused by the ac- tual grading of the street, and not by the ordinance fixing the grade. Until the physical condition of the street was changed their lot had received no actual damage for pub- lie use. The enactment of the or- dinance rendered it possible that the street would at* some time be reduced to that grade, but a mere paper change of grade did not af- fect the condition of the lot or impair its use or enjoyment. Any diminution in value that it might sustain from the mere pass- ing of the ordinance was purely speculative and contingent upon the time when grading should be done, and would no more consti- tute the damage contemplated by th? constitution than would a diminution in its value resulting from excessive taxation or the creating of a municipal debt. Eachus V. Los Angeles, etc., R. Co., 103 Cal. 621, op. 42 Am. St. Rep. 149, 37 Pae. 750. 634 CONFIRMATION DAMAGES. § 651 head only such part of the law as is applicable to special as- sessment proceedings will he considered. The question as to whether benefits assessed can be offset against property taken or damaged, is still an open one, depending upon the con- struction given by the local courts to the constitutional pro- visions of the various states. But in any event, the bene- fits sought to be set off against damages to land not sought to be condemned, must be real and not problematical. Other- wise the constitutional safe-guard is rendered of no avail to protect the citizen in the enjoyment of his property, free from being damaged for public use without just compen- sation.* In Ohio, it is held that compensation paid for land taken to open a street cannot be assessed back upon the lands of the owner remaining after such taking, nor the costs and expenses of the proceeding.^** The Washington statute that no lot or tract of land found by the jury to have been damaged shall be assessed for benefits, relates to an entire tract no part of which has been taken by condemnation, or to a remaining tract which is actually damaged by taking a part.^^ The ascertainment of just damages to an owner for taking away a part of his lot, of necessity involves the consideration of the value of the whole property intact, and the value of the part not taken, after the proposed part shall have been taken. ^^ In estimating value of land taken, refer- » An estimate of benefits upon set-oflf to the damages resulting to the basis that a proposed street is the part of the land not taken, to be improved through or over a Washington lee Co. v. Chicago, tract of land which is low, wet and 147 111. 327, 37 Am. St. Rep. 222, marshy, so as to give ready access 35 N. E. 378. to all parts of it and thereby lo C., L. & N. R, Co. v. Cinein- make it desirable for the location nati, 62 O. St. 405, 49 L. R. A. and operation of manufacturers 566, 57 N. E. 229, overruling without even a proposal on the Cleveland v. Wick, 18 Ohio St. part of the city to so construct it, 303 ; Dayton v. Bauman, 66 Ohio and without any legal obligation St. 379, 64 N. E. 433. whatever resting upon the city to " Quirk v. Seattle, 38 Wash. 25, do more than open it, is im- 80 Pac. 207. proper and cannot be received as a 12 Bloomington v. Miller, 84 111. 635 §§ 652, 653 THE LAW OF SPECIAL ASSESSMENTS. ence may be had to the uses to which the land is actually applied, and its capabilities.^^ 652. One whose land is taken for a local improvement has a constitutional right to allowance of compensation for buildings erected thereon intermediate the adoption of the plan and the opening of the street.^* And where a munici- pality commences proceedings for opening a street, and warns a lot proprietor against continuing improvements al- ready begun, and he is thereby delayed and damaged by the loss of rents he would have received had he been permitted to finish the buildings, it is responsible to him for the dam- age sustained, in case of the discontinuance of the street opening proceedings.^" 653. For the purpose of determining the damage result- ing to the owner of a lot abutting a street, by reason of the impairment of his easement of access, it is immaterial whether he have the fee in the street or only an easement for its use,'® while in opening a street, the jury should appor- tion the damage awarded among owner, mortgagee, lessee, &c., so each can receive a warrant for the specific sum to which he was entitled. ■''' The fact that damages to one whose property is taken for public use, have not been paid, does not affect the right of the corporate authorities to make an assessment to pay the cost of doing the work.'^ Where land is taken for widening the channel of a navigable river, the owner cannot claim as damages the cost of so dredging or removing the soil as to give his remaining land the same water front as before; it being the purpose of such taking that such dredging and removal be done by the city, and 621; Hyde Park v. Dunham, 85 isEaehus v. Los Angeles, etc., 111. 569; Green v. Chicago, 97 111. Co., 103 Cal. 614, 42 Am. St. Rep. 370. 149, 37 Pac. 750. 13 Haslam v. G. & S. W. E. Co., ^^ Eentz v. Detroit, 48 Mich. 64 111. 353. 544, 12 N. W. 694, 911. 1* Matter of opening Eogers is Duncan v. Ramish, 142 Cal. Ave., 29 Abb. N. C. 361. 686, 76 Pac. 661. 16 McLaughlin v. Municipality No. 2, 5 La. An. 504. 636 CONE'IEMATIOM' DAMAGES. § 654 the OMner being liable to an assessment for the cost thereof to an amount not greater than the benefit to him of such improvement.-'^ And if the municipality holds the legal title to school property in trust for educational purposes, and not for general municipal purposes, it is proper and right, in a proceeding to lay out and open a street over such prop- erty to assess damages for the property so taken.''* Measure of — In general. 654. When private property is damaged by a public im- provement, the measure of damages is the difference in value with the public improvement and without it, not consider- ing general benefits shared by the general public. Special and peculiar advantage which the property receives from the improvement is to be considered in determining whether there is injury or not. In other words, special benefits to Ithe property may be set-off against the damages sustained /by the owner.^^ Where property is damaged by the grad- ing of a street) the owner's measure of damages is the de- i9Holton V. Milwaukee, 31 Wis. as to vitiate the assessment be- 27. cause they were considered. Peo- 20 Fagan v. Chicago, 84 111. 227. pie v. Mayor of Syracuse, 63 N. When verdict will not be dis- Y. 291. turhed. Compensation must be made to A verdict for damages in a con- owner. demnation proceeding will not be When a street is opened by pub- disturbed on appeal, where the evi- lie authority without the owner's denee is conflicting and the jury consent, compensation must be has viewed the premises. C. & A. made to such owner. This re- E. R. Co. V. Pontiac, 169 111. 155, quirement is not met by showing 48 N. E. 485. an award to an occupant having Removimg dangerous building. the same surname as the owner, Where the commissioners took although intended for the latter, into consideration the fact that the Compensation in fact must he improvement of opening an alley shown. Hood v. Finch, 8 Wis. would remove a large barn because 381. in " dangerous proximity to a 21 Lowe v. Omaha, 33 Neb. 587, portion of the property assessed," 50 N. W. 760; Barr v. Omaha, 42 the advantages resulting from the Neb. 341, 60 N. W. 591; Kirken- removal were not of a character so dall v. Omaha, 39 Neb. 1, 57 N. W. remote, uncertain and conjectural 752. 637 §§ 655, 656 THE LAW OF SPECIAL ASSESSMENTS. preciation in value of his property caused by the construc- tion and permanent maintenance of the grade. ''^ 655. It may be accepted as the general rule of damages for an illegal grading of the street that it is the difference between the value of the property before the street was cut down, and the value thereafter ; and the expense of moving a house from the injured property is not improperly included when, if left, it was in danger of falling, and thereby in- crease defendant's liability.^^ For in a case where buildings on the line of the grading of a street or alley in a city are threatened with injury therefrom greatly in excess of the ex- pense of protecting them, the owner is bound to use reason- able exertion and necessary expense in protecting them, and the damage should be measured by such expense and exer- tion.^* Damages should include the value of improvements put on property between the time of making the report and its adoption by the council. ^^ 656. In assessing benefits for a street improvement, the jury may not indulge in vague speculations or conjectures, but should only assess such benefits, if any, as it is fairly and reasonably apparent the property will receive from the proposed improvement, other than the general benefit to the community ; and that nothing is to be considered as a bene- fit which does not enhance the value of the property.^® The 22 For the purpose of ascertain- tion. Omaha v. Flood, 57 Neb. ing the amount of damages sus- 124, 77 N. W. 379. tained by a property owner from 23 Friedrich v. Milwaukee, 118 the grading of a street, the fact Wis. 254, 95 N. W. 126. that the grade as constructed and 2* Kansas City v. Morton, 117 maintained, obstructs and will con- Mo. 446, 23 S. W. 127. tinue to obstructj the owner's pas- 25 Portland v. Lee Sam, 7 Ore. sage between his property and the 397. street, decreases the rental value, 26 Increased facilities for travel, interferes with his enjoyment and enjoyed by the property owner in possession thereof, and every other common with the community in fact and circumstance that would general, is not a proper element to depreciate the market value of the be considered by a jury in making property in the mind of a good, their estimate of damage. Fried- faith intending purchaser thereof, enwald v. Mayor, etc., 74 Md. 116, are proper elements of considera- 21 Atl. 555. 638 CONFIEMATIOIT DAMAGES. § 657 damage to property is the pecuniary loss or injury which les- sens its value. Every element arising from the construction and operation of the public improvement, which in an appre- ciable degree, capable of ascertainment in dollars and cents, enters into the diminution or increase of the value of the par- ticular property, is proper to be taken into consideration in determining whether there has been damage, and the ex- tent of it.^'' In arriving at this, it is proper for the jury to consider what may be presented to their minds by and through their personal view and inspection of the premises, as the facts and circumstances brought to their knowledge through the medium of witnesses who testified in the case.^® On a special assessment proceeding when land is restricted by statute to a particular use as for railroad purposes, and cannot be applied to any other use, the measure of the bene- fit which an improvement will confer on the land is its in- creased value for the special use to which it may be by stat- ute restricted.^* 657. The destruction of shade trees along the sidewalk may be considered as an element of the damage resulting to abutting property from a change of grade, or an illegal grade.*" The value of the property for subdivision pur- poses may be shown, and its present use and "future possi- bilities, but without regard to probable increase by reason of the improvement.®^ Where the landowner sues to re- cover damages caused by a municipality making an open stream a part of its sewer system, and the injury is a per- manent one, the measure of damages- is the difference be- tween the value of the property before such injury and its market value afterwards.®^ 27 Metropolitan W. S. E. R. Co. so Walker v. Sedalia, 74 Mo. V. Strickney, 150 111. 362, 26 L. R. App. 70. A. 773, 37 N. E. 1098. ai South Park Com'rs v. Dun- as Sanitary Dist. V. CuUerton, levy, 91 111. 49; Chicago & E. R. 147 111. 385. Co. V. Jacobs, 110 111. 414. 29 111. Cent. R. Co. v. Chicago, S2 Carpenter v. Lancaster, 212 141 111. 509, 30 N. E. 1036. Pa. 581, 61 Atl. 1113. 639 § 658 THE liAW OF SPECIAL ASSESSMENTS. Measure of — Change of grade. 658. The amount of damages caused adjoining property by reason of the change of an established grade, to which grade the street has been graded, and the abutting property made to conform thereto, is usually fixed by the legislature. Under a charter giving to the lot owner the right to recover all damages, costs and charges arising from a change in the established grade of a street, to be paid by the city to any owner of a lot, parcel of land, or tenement, which may be affected or injured by such change of grade, — the dam- ages recoverable include all necessary expenses in changing Non-expert evidence. The opinions of non-professional witnesses about the ordinary af- fairs of life are admissible in evi- dence in all eases where, from the nature of the question involved, its answer necessarily depends upon mere opinion. This is pecu- liarly so in questions as to value, time, distance, weight, etc. Spear V. Drainage Com'rs, 113 111. 632. Persons who are well acquainted with the property, have consider- able knowledge of the value of ad- joining properties, and who own property themselves within a block or two of the property in contro- versy, are competent witnesses as to value. South Omaha v. Ruth- jen (Neb.), 99 N. W. 240. Jury's view of premises. In considering the verdict of a jury on appeal, great weight will be given to the fact that the jury have examined the premises before making their verdict. Stockton v. Chicago, 136 III. 434, 26 N. E. 1095. Damages on appeal bond. In an action upon an appeal bond given on appeal from the confirmation of a special assess- ment, the measure of recovery is the amount of the assessment, and nothing more, except the costs. Kilgour V. Drainage Commission- ers, HI 111. 342. As to power of legislature to fix measure of damages, see Dorgan v. Boston, 12 Allen, 223. Compensation to be fixed as of the time of filing the petition, see South Park Com'rs v. Dunlevy, 91 111. 49. Dupuis V. C. & N. N. W. R. Co., 115 111. 97, 3 N. E. 720. Market value — Present use, and that to which adapted, see Kan- kakee, etc., Co. V. Kankakee, 128 111. 173, 20 N. E. 670. Elements of damages properly excluded, see L. S. & M. S. R. Co, V. Chicago, 148 111. 509, 37 N. E. 88, 91. Damages — when too remote, see Hyde Park v. Dunham, 85 111. 569. Damages — how estimated, Port- land V. Kamm, 10 Or. 383; Jones V. Seattle, 23 Wash. 757, 63 Pac. 553, citing 3 Sutherland on Dam. Sec. 1053, 3 Sedgwick on Dam., 8th Ed., See. 939. 640 CONFIEMATION • ■ DAMAGES. 658 the grade of the lot to make it conform properly to the new grade of the street, and the expense of repaying made nec- essary by the change; and it makes no difference that the lot is unimproved, and that the expense of conforming its natural grade to that finally established, has been no greater than it would have been if such final grade had been first adopted.^* In determinirig whether or not a change of S3 French v. Milwaukee, 49 Wis. 584, 6 N. W. 244. Under a charter providing that " all damages, costs and charges " arising from a change of grade in a street " shall be paid by the city to the owner of any lot . . . injured " in consequence of such alteration, any peculiar or special benefit conferred upon plaintiff's lot (such as securing suitable drainage, not common to other lots in the neighborhood, and not in- creasing its market value) cannot be considered by the jury in fixing damages; but if the lot, in conse- quence of the changed grade, has become of greater value in com- mon with the other property in that locality, the city is entitled to have such increase of value de- ducted in the estimate of damages. Church V. Milwaukee, 31 Wis. 512; Stowell V. Milwaukee, 31 Wis. 523. Under a city charter providing that when the grade of a street has been once established, and is afterwards changed, " all damages, costs and charges arising there- from shall be paid by the city to the owner of any lot or parcel of land, or tenement, which may be affected or injured in consequence of the alteration of such grade," in case of such change in the es- tablished grade, the owner of a lot affected thereby may recover the expense of restoring his prem- ises to their former position rela- tive to the street. Church v. Milwaukee, 34 Wis. 66. Under a charter which declares that where the grade of u, street, once established, is afterwards changed, " all damages, costs and charges arising therefrom shall be paid by the city to the owner of any lot, or parcel of land, or tene- ment, which may be affected or injured " in consequence of such change, the right to damages in such ease is purely statutory, is granted only to the owner of the land or building injured for in- juries to the land or build- ing itself, with costs neces- sary to restore it to its for- mer usefulness, and not for in- jury to or suspension of the trade carried on upon the premises. Stadler v. Milwaukee, 34 Wis. 99. In an action against a city for damages caused by the change of an established grade, where the adjacent street had been graded down several feet below the grade previously established, evidence as to the exact construction and situ- ation of plaintiff's house on the premises; of the value of fruit and shade trees on the lot, the necessary grading down of which would destroy the trees and shrub- bery thereon; of the estimates of 41 641 § 659 THE LAW OF SPECIAL ASSESSMENTS. grade in the street will result in damage, it is proper to con- sider the cost of adjusting the property, with the buildings thereon, to the new grade, the damage to trees, if any, as well as the benefits which may accrue.** Evidence of the use to which property is devoted or for which it is suitable is admissible to ascertain damages caused abutting prop- erty by a change of grade.*^ 659. For damages caused abutting property by reason of the change of an established grade, made with due care and skill, there is no remedy at common law,*® and to the statutes in each state must we turn for the measure of dam- ages. We have seen what they are in Wisconsin,*'^ and that is a fair representation of the general rule. But in those states whose constitutions allow compensation for property damaged for public use, the statute is not the sole authority for, nor the measure of the damage. In Illinois, the mea- sure of damages for the change of grade is the difference or depreciation of the market value or which is the same thing, the damage less the benefits; but where the improvement so made is paid for in part by the owner of the property in- jured by way of special taxation, then another element nec- essarily enters into the computation of damages to be as- sessed in favor of such owner; for, unless the amount paid in order to secure the benefits set off against damage is taken into consideration and deducted from benefits by exactly that amount, damages recovered will fall short of being just the city engineer showing the premises, caused by the change of amount of excavation in front of grade. Church v. Milwaukee, 34 the premises; and of the expense Wis. 66. of lowering the house, outbuild- S4 Seattle v. Board of Home ings, etc., is admissible. Church Missions, etc., 138 Fed. 307; Lewis V. Milwaukee, 34 Wis. 66. on Em. Domain, Sees. 217, 218g. Under <■, charter giving the 35 Seattle v. Board, etc., supra. lot-owner damages for change of Boom Co. v. Patterson, 98 U. S. an established grade, the city is 403, 25 L. ed. 206. entitled to the advantage of any ae Dore v. Milwaukee, 42 Wis. increase, and the lot owner to ad- 108; Hanbner v. Milwaukee, 124 ditional damages for any dvminu- Wis. 153. tion, in the market value of the ^^ Note 33. 642 COITFIEMATION' DAMAGES. § 660 compensation.®* In estimating damage to property caused by change of grade in a street, where no part of the private property is taken, the effect on the whole property should be considered, and not merely a part of it. Any general benefit, common to all other property affected by the work, should not be considered in determining whether the prop- erty is benefited as much as injured.®^ 660. If in changing the established grade, shade trees are necessarily destroyed, the effect of such destruction upon the market value of the whole property may be considered, but no distinct and separate sum can be assessed for such destruction.*" But in an action for damages caused by a change of grade, the amount paid by plaintiff as a special tax on his premises for the improvement is an item of dam- age to be considered by the jury.*^ In the absence of statu- tory provisions on the subject, the -difference in market value before and after the change of grade is the measure of dam- ages.*^ The diminution in value of the property injured is a correct measure of the damages sustained. The cost of the improvements and changes necessary to restore the prem- ises to a proper condition in relation to the new grade of the street is admissible as evidence affecting the question of the benefit to the property, but not as a substantive cause of damage.*^ S8 Bloomington v. Pollock, 141 eial objection as to the form of 111. 346, 31 N. E. 146. the question. Eachus v. Los An- sa Shawneetown v. Mason, 82 geles, etc., Co., 103 Cal. 614, 42 111. 337, 25 Am. Rep. 321. Am. St. Rep. 149, 37 Pae. 750. *o Seaman v. Washington, 172 *3 Persons injured by a change Pa. St. 467, 33 Atl. 759. of grade are entitled to compensa- *i Bloomington v. Pollock, 141 tion for the net injury done them ; 111. 346, 31 N. E. 146. to be made whole so far as money *2 Upon the issue of the extent is a measure of compensation, to which property is damaged by This is the essential meaning of grading, evidence that the effect the term "just compensation," of the grading was to depreciate whether in reference to the con- the value of the property, and the stitutional guaranty, or as the amount of the depreciation, ia basis of all general rules respect- competent, in the absence of a spe- ing damages. The special and pe- 643 § 661 THE LAW OP SPECIAL ASSESSMENTS. Measure of — Takii^. 661. Where land is taken for a public improvement, the owner is entitled to the value of the land actually taken, without regard to any supposed benefits arising from the proposed improvement.** In proceedings to open and widen a street, the measure of damages is the value of the property immediately before the work was commenced, and the value immediately after the work was completed. This must be based upon the actual physical condition, discoverable by observation, and not a prospective or possible one depend- culiar benefits resulting to the owner from a, ' change of grade must therefore be offset against the damages sustained. Chase v. Portland, 86 Me. 367, 29 AU. 1104. Special v. General Benefits. All such benefits as come from the situation of the premises with reference to the change of grade, such as having a dry and pleasant street in front of his lot, and more convenient access to his store, are direct and special and must be set off against the dam- ages, although other estates on the same street, may be benefited in like manner; but the general benefits arising from the improved facilities afforded by the street which affect equally all estates in the neighborhood, cannot be thus offset. Chase v. Portland, 86 Me. 367, 29 Atl. 1104. Instructions to jury. Where plaintiff in an action for damages for change of grade of street had not, at the time of the trial, adjusted his premises to such changed grade, it is not error to instruct the jury that he was en- title to recover what it would cost him to put them in the same rela- tive position to the street that they were in before the change of grade. Stowell v. Milwaukee, 31 Wis. 523. Damages — how estimated. Damages to abutting property from a change of grade should be estimated by deducting from the damages sustained the direct and peculiar benefits resulting to the tract in question, and not the gen- eral benefit that such tract would derive in common with the lands of other owners in the neighbor- hood. Cole V. St. Louis, 132 Mo. 633, 34 S. W. 469. Amovmt paid for previous grading to be considered. Under a city charter providing that the expense of grading a street and sidewalk in front of a lot is always chargeable to such lot, the amount paid by plaintiff for previous grading is a part of the " damages, costs and charges " which he may recover in an ac- tion for damages for altering the previously established grade. Stowell V. Milwaukee, 31 Wis. 523. ** Harwood v. Bloomington, 124 111. 48, 16 N. E. 91. 644 CONFIEMATION DAMAGES. §§ 662, 663 ing on future municipal action.*® In giving evidence as to the value of land condemned, a witness may testify there- to " taking it as a part of the entire tract," *® and the pui> pose for which the property is used, and for which it is adapted, may be considered,*'' but damages cannot be allowed for injury to business caused merely by the improvement and not by the taking.** In proceedings to^ condemn a strip of land over lots for an alley, the measure of damages to the lots and buildings thereon is the difference in value before and after the alley is opened, and in determining that ques- tion it is proper to take into consideration any special bene- fits the property not taken will receive by the contemplated improvement.*® To whom damages belong. 662. Damages caused by street improvements are a per- sonal claim of the ovTner of the property at the time of the injury, and do not run with the land.®" In case mortgaged property is damaged, the mortgagor is entitled to recover of the city the damages. But if the mortgagee's security be impaired by such change, it may be that equity would com- pel the mortgagor to apply the damages recovered upon the payment of the mortgage debt.®* Consequential damages. 663. Where the change of grade in a street by reason of the construction of a viaduct therein is made under au- thority of law and with due care, the municipality is not lia- ble for consequential injuries to abutting property, unless *sMarkle v. Philadelphia, 163 *» Stockton v. Chicago, 136 111. Pa. St. 344, 30 Atl. 149. 434, 26 N. E. 1095. *« C, P. & M. R. Co. V. Mitch- oo Hilton v. St. Louis, 99 Mo. ell, 159 111. 406, 42 N. E. 973. 199, 12 S. W. 657; Stadler v. Mil- <7j. & S. E. R. Co. V. Walsh, waukee, 34 Wis. 98. 106 111. 253. 01 Tyson v. Milwaukee, 50 Wis. *8San Francisco v. Kieman, 98 78, 5 N. W. 914; In re Seattle, 26 Cal. 614, 33 Pac. 720; Stadler v. Wash. 602, 67 Pac. 250. Milwaukee, 34 Wis. 98. 645 § 664 THE LAW OF SPECIAL ASSESSMENTS. made so by statute or the constitution.^'* The damages re- ferred to in the constitution are direct and physical dam- ages resulting from a taking of a portion of the land, and when no portion of the land is taken, the damages suffered are consequential, and condemnation proceedings are not re- quired to be instituted to ascertain the same. It is sufficient to answer the constitutional requirement that a remedy is provided, for the recovery of such damages by an action at law.®* Where the grade of a certain street over railroad tracks was raised pursuant to an agreement between the city, the railway companies, and others, and the city altered the grade in front of plaintiff's improved property, to his dam- age, and the necessary viaduct built by the railway com- panies, it was held that the city causing the work to be done was primarily liable for consequential damages, and the re- lations between it and the parties doing the work were imma- terial to the property owner.®* It is held in Pennsylvania that it is immaterial that the damages sustained are conse- quential, where they are to be paid by the owners of bene- fited property, and not by the city,®' but this is a dangerous doctrine and unsupported by other authority. The true rule seems to be, that a municipal corporation making an im- provement solely for the benefit of the public, under ample authority granted by the legislature, and performing the work in a circumspect and careful manner, is not answer- able for consequential damages produced thereby to prop- erty in the vicinity of such improvement, no part of which is taken or used therefor.®* Interest. 664. Interest on an award for land taken begins to run from the time possession is taken by the public, and not from 52 Waliah v. Milwaukee, 95 Wis. 65 Wray v. Pittsburgh, 46 Pa. 16, 69 N. W. 818. St. 365. B3 Parker v. Catholic Bishop, os Alexander v. Milwaukee, 16 146 111. 158, 34 N. E. 473. Wis. 248. 5*Diekerman v. Duluth, 88 Note. — In Arimond v. G. B. & Minn. 288, 92 N. W. 1119. M. CS-nal Co., 31 Wis. 316. the 646 CONFIEMATION DAMAGES. 665 the date of the judgment of condemnation.^'^ It is not recoverable for the time elapsing between the initiation of the condemnation proceedings, and the payment of the money into court,®® nor is it recoverable upon an unliquidated claim for damages caused by change of grade. ®^ The jury. 665. Under a charter which provides that in opening streets the excess of damages over benefits, if any, shall be court, by Dixon, C. J., says, in speaking of the Alexander case, "that it was an extreme applica- tion of the doctrine of damnum absque injuria and that the prin- ciple of it is not to be extended to other and dissimilar cases." The Alexander case was strongly reaf- firmed in Harrison v. Supervisors, 51 Wis. 645, 8 N. W. 731, and fol- lowed in Cohn v. Wausau Boom Co., 47 id. 314, 2 N. W. 546; Heth v. Fond du Lac, 63 id. 228, 53 Am. Rep. 279, 23 N. W. 495; Chase v. Oshkosh, 81 id. 313, 15 L. E. A. 553, 29 Am. St. Rep. 898, 51 N. W. 560; Col- clough V. Milwaukee, 92 id. 186, 65 N. W. 1039. It is distinguished in Borchardt v. Wausau Boom Co., 54 Wis. 107, 41 Am. Rep. 12, 11 N. W. 440, and Pettigrew v. Evans, 25 id. 223, 3 Am. Rep. 50; and explained in Spelman v. Portage, 41 Wis. 144, and Smith v. Eau Claire, 78 id. 457, 47 N. W. 830. See, also, Pumpelly v. G. B. & M. Canal Co., 13 Wall. 166, 180, 20 L. ed. 557, 561, 4 L. R. A. 37n; 15 L. R. A. 556, and 20 L. R. A. 77. And see Damkoehler v Milwaukee 124 Wis. 144, 101 N. W. 706. 57 Chicago V. Palmer, 93 111. 129. 68 Shoemaker v. United States, 147 U. S. 282, 37 L. ed. 170, 13 Sup. Ct. Rep. 361. 59 Tyson v. Milwaukee, 50 Wis. 78, 5 N. W. 914. Agreement between city and owners. Contributions made by land- owners under agreement with a city, under statute authority, by which they released damages caused by taking their land for a street, and pay a part of its cost of construction, and part of the damages received by other land- owners, and the city assumes their assessments for benefits, are not voluntary gifts to be deducted from the cost of the way. Atkin- son V. Newton, 169 Mass. 240, 47 N. E. 1029. Evidence as to damages. In a street opening case, evi- dence as to what one parcel of land involved in the proceedings, and not belonging to any of the parties, was offered for the year previous, is competent as tending to show the value of other lands in the immediate vicinity of those in- volved. Grand Rapids v. Luce, 92 Mich. 92, 52 N. W. 635; Perkins V. People, 27, Mich. 386. Dam- num absque injuria. See Eigney V. Chicago, 102 111. 64. 647 § 665 THE LAW OF SPECIAL ASSESSMENTS. laid on the whole city, and requires the jury to be free- holders resident within the city, they cannot fail to have an interest in the result which will affect their competence as jurymen, and the proceedings under their verdict are en- tirely void.®'^ An assessment is not invalidated because the verdict determining the necessity of proceeding is given by a panel of eleven jurors, both parties having so stipulated.®^ But where the statute provides that the assessment be made by a jury, or by commissioners, and six men were selected as jurors under an ordinance to that effect, the assessment made by them is invalid, a jury meaning twelve men.®^ It is a fatal defect, at the meeting of a jury to correct irregu- larities in an assessment, to select a new juror in place of one who attended at the preliminary assessment, but who failed to attend the second meeting ; and such irregularity is not waived by the appearance of a party at such later meet- ing, 63 Lidbility of city for neglect. Where plaintiff proved the or- dinance authorizing the improve- ment contract on which his war- rants were baaed, the execution of the contract, the performance of the work; its acceptance by the city, and the failure of the city for four years to provide the special fund out of which it was to be paid, he made a prima facie case against the city, and the burden was then on it to show that its failure to provide the fund was not owing to its neglect in com- plying with its charter provisions, or in exercising reasonable dili- gence. Jones V. Portland, 35 Or. 512, 58 Pac. 657. Allowing soil in street to he re- moved. As the owner of land abutting on a public street is the owner of the fee in the street, subject to the public easement, the soil and min- eral in the street belong to him. The public easement justifies the taking and removal of material only for the construction or re- pair of the street; and if the con- tractor removes stone or other ma- terial from the street, and ap- propriates it to his own use, the city is liable therefor. Rich v. Minneapolis, 37 Minn. 423, 5 Am. St. Rep. 861, 85 N. W. 2. 60 Powers' Appeal, 29 Mich. 504. 81 Borgman v. Detroit, 102 Mich. 261, 60 N. W. 696. 62 Bibel v. People, 67 111. 172. 83 Gilkerson v. Scott, 76 111. 509. 648 CONFIEMATIOlsr DAMAGES. §§ 666, 667 — View of premises. 666. It is within the discretion of the court to permit the jury to view the premises upon the application of either ^arty in a proceeding to confirm a special assessment.®* The facts acquired by a jury from a view of the premises are not evidence."® Questions for jury. 667. In a proceeding to confirm a special assessment, the only questions to be submitted to the jury are, whether by the assessment returned, the property of the objector is as- sessed more than it will be benefited by the proposed im- provement, and whether it has been assessed more or less "than its proportionate share of the cost thereof.®® Their verdict that properly is specially benefited, is not conclusive as to the benefit being " local," so as to be paid for by spe- cial assessment, when that question is, by consent, reserved for decision.®'' The mere fact that the jury has reduced the assessment on certain property is not enough to estab- lish a deficiency, and the court has no power to distribute the amount of such reduction as a deficiency without further proof.®* On application to confirm a special assessment, the objectors have no right to ask the jury to ascertain the benefits to properties belonging to other parties, and on the question of benefits, evidence as to the necessity of the im- provement is properly excluded.®® Where objections to an 64 Pike V. Chicago, 155 111. 656, clear that error was committed. 40 N. E. 567. Wells v. Chicago, 202 111. 448, 66 65 Rich V. Chicago, 187 111. 396, N. E. 1056. 58 N. E. 306. 66 Goodwillie v. Lake View, 137 By trial judge. 111. 51, 27 N. E .15; Kelly v. Chi- Where a trial judge, by agree- cago, 148 111. 90, 35 ti. E. 752. ment of parties, views the prem- 6T Morgan Park v. Wiswall, 155 ises with a view of determining 111. 262, 40 N. E. 611. the necessity for and reasonable- es Jacksonville v. Hamill, 178 ness of the improvement, his find- 111. 235, 52 N. E. 949. ing in that regard will not be disr- m Walters v. Lake, 129 111. 23, turbed, on appeal, unless it is "^l N. B. 556; Houston v. Chi- 649 § 667 THE LAW OF SPECIAL ASSESSMEJifTS. assessment do not involve a question of fact to be determined by a jury, the plaintiff cannot complain that the court re- fused to hear evidence in support of his objections before the juryj" cago, 191 m. 559, 61 N. E. 396. that question, and cannot pass on 70 Goodwillie v. Lake View, 137 the question as to whether the pe- 111. 51, 27 N. E. 15. titioner has established a legal Jury passes on benefits only. right to a judgment of confirma- When a jury is empaneled to tion. Sweet v. W. Chi. Pk. Com'rs, determine the question of benefit 177 111. 492, 53 N. E. 74. to property, it has to do only with 65{/ CHAPTER Xn. COLIJICTION OF THE TAX, AISTD METHOD OF ENFORCEMENT. Personal liability, 668. In rem. 669-670. Municipal liability, 671-672. Cause for liability, 673. Liability arising from creation of special fund, 674-676. Reasons for non-liability, 677-678. Collection — In general, 679-680. Collection by city, 681. Collection by contractor, 682. Contract induced by fraud, 683. Defective or unfinished contracts, 684. Remedy of contractor, 685. Collection from property exempt from execution, 686. Penalties for non-payment, 687 Limitations, 688. Who may collect, 689. Completion of work, 690. Pleading, 691. Counterclaim — Demurrer, 692. Evidence — Prima facie proof, 693. Burden of proof, 694. Mandamus, 695. When mandamus will not lie, 696. Judgment of sale, 697. What may be shown on applica^ tion for, 698. Form and validity of judgment, 699. The sale, 700. Collection from railroads, 701. When sale void — Caveat emptor, 702. Defense to collection proceedings, 703. What defenses available, 704-705. Defenses not available, 706. Liens — In general, 707. Priorities, 708. Discharge of, 709. Filing or establishing, 710. Enforcement — Parties, 711. Foreclosure of, 712. Evidence in foreclosure, 713. Defenses in foreclosure, 714. Enforcement of, 715. Merger, 716. Payment, in general — Bonds, 717. Payment in installments, 718. Payment from general fund, 719. When payment neither waiver nor estoppel, 720. Interest, 721. Who should make payment, 722. Personal liability. 668. The question as to the ultimate liability for the payment of the special assessment is one that is still sharply contested in the courts, and all hope of an harmonious set- tlement remains in abevance. The author is so thoroughly 651 § 669, 670 THE LAW OF SPECIAL ASSESSMEITTS. imbued with the doctrine of benefit as the only legal or rational foundation for the exercise of this form of taxation that to him any attempt looking to enforce a personal lia- bility against the owner is an illustration of the confisca- tory extent to which the application of any other theory is apt to lead. No one can seriously object to the payment of a sum of money for an improvement to his property which immediately enhances it in value to the amount of exaction ; but to take his property, and then obtain a judgment for de- ficiency against him personally must strike every one as unjust, illogical, and an exercise of the strong right arm of might. In Bern. 669. Proceedings for the collection of local assessments are denominated proceedings in rem, and no personal lia- bility or general charge against the owner will be created other than by statute, but only a lien against the specific property assessed, and the only peril to which the owner of the lot is exposed is the loss of the lot.^ 670. Where the value of the property is actually les- sened by the improvement, as not infrequently happens, to take the property for the tax would certainly amount to a taking of private property for public use without just com- pensation, and the principle involved is so elementary that it would seem almost impossible for the judicial mind not to settle upon it as a thing beyond the reach of further dis- cussion.* But many courts of the highest authority hold Hn re Hun, 144 N. Y. 472; 29 So. 894; St. Louis v. Bressler, Olcott V. State, 10 111. 481; 56 Mo. 350; Clinton v. Henry Co., Pidgeon v. State, 36 111. 249; Mix 115 Mo. 557, 37 Am. St. Rep. 415, v. Ross, 57 III. 121; Virginia v. 22 S. W. 494; St. Louis v. Koch', Hall, 96 HI. 278; HI. Cent. R. Co. 169 Mo. 587, 70 S. W. 143; Haw- V. Commissionera, 129 111. 417, 21 thorne v. E. Portland, 13 Or. 271, N. E. 925; Hoover v. People, 171 10 Pae. 342. m. 182, 49 N. E. 367; Dobler v. California. Warren, 174 111. 92, 50 N. E. 1048; = Taylor v. Palmer, 31 Cal. 240; Kelly V. Mendelsohn, 105 La. 490, Gaflfney v. Gough, 36 Cal. 104. 652 COLLECTIOSr AND EdSTFOECEIMEINT. 670 Illinois. Brown v. Joliet, 22 111. 123. An act authorizing the recovery of the cost of building a sidewalk out of the personal property of the lot owner is unconstitutional and void. Craw v. Tolono, 96 111. 255, 36 Am. Eep. 143. Virginia v. Hall, 96 111. 278. Craw V. Tolono, 96 111. 255, 36 Am. Eep. 143, holding there is no personal liability against the owner on account of a special as- sessment, was not intended to overrule Taylor v. People, 66 111. 322, and to hold that public prop- erty can be sold in such cases, nor to overrule Higgins v. Chicago, 18 111. 276, nor Scammon v. Chi- cago, 42 111. 192, and hold that public property is not liable to special assessment, but it was simply intended to lay down a rule in regard to special assess- ments of the property of private owners. McLean Co. v. Blooming- ton, 106 111. 209. In re Mt. Vernon, 147 III. 359, 23 L. R. A. 807j 35 N. E. 533; 111. Cent. E. Co. v. People, 161 111. 244, 43 N. E. 1107; Shepherd v. Sullivan, 166 111. 78, 46 N. E. 720; 111. Cent. R. Co. v. People, 170 111. 224, 48 N. E. 215. Appearance by lot owner and de- fending application for judgment of sale for unpaid special tax does not render him liable to personal judgment. Hoover v. People, 171 111. 182, 49 N. E. 367. So much of the Illinois Side- walk act of 1875 as purports to create a personal liability against the lot owner for a special tax assessed to pay for a sidewalk, is unconstitutional. Hoover v. Peo- ple, 171 111. 182, 49 N. E. 367. Indiama, State V. Aetna Life Ins. Co., 117 Ind. 251, 20 N. E. 144. Kentucky. An owner of private property cannot be required to pay, in any direct mode, for any benefit or advantage which may accrue to him from public improvements. Sutton's Heirs v. Louisville, 5 Dana, 28 (1837). A charter provision authorizing personal judgment against the owner of abutting property for street improvements is unconsti- tutional. Meyer v. Covington, 103 Ky. 546, 45 S. W. 769. And see Broadway, etc., Church v. Mc- Atel, 8 Bush. 508, 8 Am. Rep. 480. Louisiana. No personal liability. Barber Asphalt Pav. Co. v. Watt, 51 La. An. 1345, 26 So. 70. Moody V. Chadwick, 52 La. An. 1888, 28 So. 361. Macon v. Patty, 57 Miss. 378, 34 Am. Rep. 451. Missouri. " If you can assess the lot of a non-resident of the city for im- provements made in one of the streets in the vicinity of the lot, and sue the owner of the lot, get a personal judgment, sell the lot for less than the amount of the judgment, and collect the balance from the owner out of the other property without the city limits, you have in such case certainly taken his property and converted it to the use of the city, and if he has in such case received any just compensation within the meaning of the Constitution, it is difficult to perceive it. This would enable the city to do that by indirection 653 § 670 THE LAW OF SPECIAL ASSESSMENTS. that it is competent for the legislature to make the owner personally liable for the payment of a tax, but the right to do so must not rest in implication.^ which could not be done directly. If we construe the statute in refer- ence to these assessments to au- thorize a, personal judgment, by which such results might follow, it would make the statute unconsti- tutional and void." St. Iiouis v. Allen, 53 Mo. 44; St. Louis v. De Noue, 44 Mo. 136; Louisiana v. Miller, 66 Mo. 467; Higgins v. Ausmuss, 77 Mo. 361 ; Louisiana y. Miller, 66 Mo. 467; State v. An gert, 127 Mo. 456, 30 S. W. 118; Moberly v. Hogan, 131 Mo. 19, 32 S. W. 1014. Nebraska. Omaha v. State, (Neb.) 94 N. W. 979. New York. Although the statute under which the improvement was made, provides that pajrment of the as- sessment by any party, which should by law or agreement be paid by another, the person paying may sue and recover the same — yet where the owner's name did not appear on the assessment books, no personal liability against him was created. Mutual Life Ins. Co. V. Sage, 41 Hun, 535. North Carolina. Personal judgment not author- ized. Ealeigh v. Peace, 110 N. C. 32, 17 L. R. A. 330, 14 S. B. 521. Oregon. Ivanhoe v. Enterprise, 29 Or. 245, 35 L. E. A. 58, 45 Pae. 771. Pennsylvania. The property itself, and not the owner, is debtor for the amount of a local sewer assessment. Wolf v. Philadelphia, 105 Pa. St. 25. Virginia. Green v. Ward, 82 Va. 324; As- berry v. Roanoke, 91 Va. 562, 42 L. R. A. 636, 22 S. E. 360. Califorma. 3 The lot owner is not held liable for work done on a, street on the theory of a contract between him and the contractor who does the work. The assessment is levied and collected by virtue of the sov- ereign power of taxation, and its validity depends upon the same general principles applicable to taxes properly levied for ordinary governmental purposes. Emery v. Bradford, 29 Cal. 75. Emery v. Gas Co., 28 Cal. 345. Walsh V. Matthews, 29 Cal. 123, affirming act of 1862 making the owner personally liable to the con- tractor. And such a demand is assignable. Cochran v. Collins, 29 Cal. 129. But the owner of land in a municipal corporation, border- ing upon an improved street, can- not be made liable for the cost of the improvement beyond the value of his land.. Taylor v. Palmer, 31 Cal. 240; Beandry v. Palmer, 32 Cal. 269. An assessment for a street im- provement made after the death of the property owner is not a claim against his estate which is re- quired to be presented for allow- ance. People V. Olvera, 43 Cal. 492; Hancock v. Whittemore, 50 Cal. 522. 654 COLLECTION AJSTD HNFOIICEMISNT. § 671 Knnicipal liability. 671. Many interesting and doubtful questions arise as to the ultimate liability of the city to pay the special as- sessment warrants or certificates, and the courts are as A judgment of foreclosure of street lien providing for personal judgment after sale of the prop- erty is erroneous. Manning y. Den., 90 Cal. 610, 27 Pac. 435. Illinois. Where a special assessment for public improvements has been lev- ied upon a person's real estate, a lien is created upon his person- alty from the delivery of the war- rant to the collector. Higgins y. Chicago, 18 m. 276. Indiana. A personal judgment for the amount of a, special assessment may be rendered against a rail- road, where the statute does not permit the sale of the part spe- cially assessed. L. N. A. & C. E. Co. v. State, 122 Ind..443, 24 N. E. 350. Where a property owner against whom street improvement assess- ments have been made executes a statutory waiver'that he will make no objection to the assessments on the account of illegality or irregu- larity, and that he will pay all of said assessments, with interest, he thereby becomes personally liable for any deficit in the payment of such assessments, interest, and costs after the sale of the lots on foreclosure of the lien. Wayne Co. S. B'k V. Gas City L. Co., 156 Ind. 662, 59 N. E. 1048. But where in addition to the decree of foreclosure of the lien, the court rendered a personal judg- ment against the owner, and no objections to the form or character of the judgment, or motion to mod- ify the same, was made in the trial court, the judgment will not be reversed because of such error. Leeds v. Defrees, 157 Ind. 393, 61 N. E. 930. Imca. One who sues to set aside local assessments, and offers therein to pay all legal assessments, renders himself liable to a personal judg- ment therefor, irrespective of stat- ute. Farwell v. Des Moines, etc., Co., 97 la. 286, 35 L. E. A. 63, 66 N. W. 176. If the improvement for which the city levies a special tax is such as the statute authorizes it to make, any error or irregularity in the manner of proceeding by the city, or any officer thereof, will not defeat a recovery for the proper proportion of the value of the work from the abutting owner. Bur- lington V. Quick, 47 la. 222. Under the Iowa code, execution may be issued against the owner for the amount remaining due on a special assessment, after sale of the property assessed. Dewey v. Des Moines, 101 la. 416, 70 N. W. 605. But this decision, on appeal to the U. S. Supreme Court of the United States was reversed in Dewev v. Des Moines, 173 U. S. 193, 43 L. ed, 665, 19 Sup. Ct. Rep. 379. The good effects of the reversal may be appreciated by 655 § 671 THE LAW OF SPECIAL ASSESSMENTS. sharply divided upon this question as upon any other in connection with the entire subject. With the intention of safeguarding municipal interests, it is a common charter reading C. R. I. & P. E. Co. v. tax is im, personam, and authorizes' Ottumwa, 112 la. 300, 51 L. K. A. 763, 83 N. W. 1074. Maryland. This state adopts as the basis of its theory that the tax is not im- posed on the owner, but on the property, and although a personal action will lie against him, this does not affect the specific liability of the property. Eschbach v. Pitts, 6 Md. 71; Clemes v. Mayor, etc., 16 Md. 208; Dashiell v. Mayor, etc., 45 Md. 615. The lat- ter case holds that where, pend- ing proceedings, the owner dies, the heir is liable in assumpsit for the tax. The lessee under n, 99- year lease, or for 99 years re- newable forever, and not the owner of the fee, is the person who must assent to the paving of streets. Holland v. Mayor, etc., 11 Md. 186, 69 Am. Dec. 195. A paving tax is an improve- ment tax; the property is en- hanced in value by the work done; the improvement is appur- tenant to the land, and the person owning the land when the paving was completed was per- manently benefited as a proprie- tor, and is liable for the amount of the tax. Wolff v. Mayor, etc., 49 Md. 446. Gould V. Mayor, etc., 59 Md. 378; Moale v. Mayor, etc., 61 Md. 225; Mayor, etc., v. Ulman, 79 Md. 469, 30 Atl. 43. Missouri. Under the statute of March 5, 1855, the suit to recover a special a general judgment for the amount of the tax and interest, as well a& a special judgment against the property. St. Louis v. Clemens, 36 Mo. 467. Overruled in Neenan v. Smith,, 50 Mo. 525, where the court say, construing the statute that the col- lector shall collect the special as- sessments by " ordinary process of law," that that term does not mean ordinary personal judgment and execution, but such process as is adapted to enforce a lien or spe- cific charge upon the property specially assessed. A special tax bill for street pav- ing in a city of the third class is prvma fade evidence of liability of the property for the charge stated in the bill; and it devolves upon the defendant, after such bill is put in evidence, to show some valid objection to its pre- sumptive force. Moberly v. Ho- gan, 131 Mo. 19, 32 S. W. 1014. New Jersey. Where a tax is lawfully assessed for a public improvement, the quota apportioned to each indi- vidual becomes a debt, and if not paid, must be recovered by the corporation in due course of law, unless where the charter author- izes proceedings of a more sum- mary kind. State v. Beverly, 53 N. J. L. 560, 22 Atl. 340, and cases cited. New York. A statute imposing an assess- ment as a tax, to be enforced in 656 COLLECTION" AJSTD ENFOECEMENT. § 671 requirement that in no event, when work is ordered to be done at the expense of any lot, shall the city be held re- sponsible on account thereof, and in case of the assessment being void for non-compliance with charter requirements, the question is as to whether the city becomes liable as a guar- antor, and such liability has been strongly denied.* One the same manner as other taxes where there is a personal liability, and authorizing suit to enforce the personal liability, is valid. Litch- field V. Vernon, 41 N. Y. 123. Ohio. Statute creating personal liabil- ity not unconstitutional. Hill v. Higdon, 5 O. St. 243, 67 Am. Dec. 289; Gest v. Cincinnati, 26 O. St. 275. Pennsylvania. The assessment of special bene- fits, being a species of taxation, and within the power of the legis- lature, the tax may be assessed either against the property or the owner. In re vacation of Centre Street, 115 Pa. St. 247, 8 Atl. 56. " Assessment against the prop- erty itself is only a method of compelling the owner to pay and thus relieve his property from the charge or lien against it. In some cases dicta may be found, and per- haps decisions also, to the effect that assessments for benefits can'- not be made or enforced against the owner of property benefited; but the principle is unsound, as already remarked, the remedy for the collection of such assessments or taxes, as well as every other species of tax, is a matter of legis- lative discretion." Opinion in above, by Sterrett, J. A very cavalier like way of dis- posing of an important matter. An act authorizing the damages for vacating a street to be assessed directly upon the owners of the property benefited, is not uncon- stitutional as being the taking of one man's property to pay the debts of or damage due to another, for the basis of the assessment, as well as of the compensation, must be the special benefit or the special injury to the property affected by the vacation. Vacation of Howard St., 142 Pa. St. 601, 21 Atl. 974. United States. Lombard v. Park Commissioners, 181 U. S. 33; Spencer v. Marchant, 125 U. S. 345, 21 L. ed. 763, 8 Sup. Ct. Kep. 921; Seattle v. Kelleher, 195 U. S. 351, 49 L. ed. 232, 25 Sup. Ct. Rep. 44. Personal liability. The charter of the city of Rochester makes special assess- ments a personal liability which may be enforced by action. Rochester v. Rochester R. Co., 109 App. Div. 638, 96 N. Y. Supp. 152. United States. * Peake v. New Orleans, 139 U. S. 342, 35 L. ed. 131, 11 Sup. Ct. Rep. 541. Indiana. Robinson v. Valparaiso, 136 Ind. 616, 36 N". E. 644; Porter v. Tipton, 141 Ind. 347, 40 N. E. 802. loVM. Although the ordinance under 42 657 § 671 THE LAW OF SPECIAL ASSESSMEH'TS. great difficulty with these cases is the difference in the facts presented, and the further occurrence in many of them of qualifying words, which may mean much or little in future which the cost of street improve- ment work is to be assessed upon the private property fronting or abutting the street, to be paid within the time and in the manner provided by city ordinance, and certificates to be issued for such work, which the contractor agrees to receive in full payment and compensation for such work, and without recourse to the city, the city is not relieved from liability thereon when the assessment it makes is entirely invalid, it not being within the contemplation of either party that the city would make an assessment against abut- ting property which could not be enforced. Iowa Pipe & Tile Co. v. Callajian, 67 L. K. A. 408, 106 Am. St. Rep. 311, 101 N. W. 141; Ft. Dodge, etc. Co. v. Ft. Dodge, 115 la. 568, 89 N. W. 7; Bucroft V. Council Bluffs, 63 la. 646, 19 N. W. 807; Scofield v. Council Bluffs, 68 la. 695, 28 IST. W. 20. Kansas. Casey v. Leavenworth, 17 Kan. 189, where it was held the con- tractors must look exclusively to the special tax for their pay, they having become dissatisfied because of a mistake in the apportionment, causing a year's delay, and they brought suit. Kentuchy. Cracraft v. Selvage, 10 Bush, 696; Louisville v. Hexagon Tile Co., 103 Ky. 552, 45 S. W. 667. Michigan. Goodrich v. Detroit, 12 Mich. 279 ; Second National Bank v. Lan- sing, 25 Mich. 207; Detroit v. Michigan Paving Co., 36 Mich. 335; Affeld v. Detroit, 112 Mich. 560, 71 N. W. 151. Minnesota. Lovell V. St. Paul, 10 Minn, 290, Gil. 229. Missouri. Saxton V. St. Joseph, 60 Mo. 153; Kiley v. St. Joseph, 67 Mo. 491; Keating v. Kansas City, 84 Mo. 415; Thornton v. Clinton, 148 Mo. 648, 50 S. W. 295; distin- guishing Oster v. Jefferson City, 57 M]o. App. 485; Wheeler v. Poplar Bluffs, 149 Mo. 36, 49 S. W. 1088; Dalton v. Poplar Bluff, 173 Mo. 39, 72 S. ^. 1068. New York. Hunt V. Utica, 18 N. Y. 442. Ohio. Creighton v. Toledo, 18 O. St. 447. Washington. Soule V. Seattle, 6 Wash. 315, 33 Pac. 384. Where an attempted assessment is void because of a complete fail- ure to carry out the provisions of the charter which are conditions precedent to the exercise of the power, there can be no greater legal or equitable right in the city to be reimbursed its outlay than there is in a trespasser upon land who makes valuable improve- ments and is dispossessed by an ejectment suit. The court say, " It has done what it did in its own wrong, without previously qualify- ing itself to have reimbursement; and now to declare that because 658 OOIXECTJOW AND HNFOiECEIMEaiTT. § 671 adjudications. Such expressions as, " without wrong on contractor's part " . 6 a " . 9 a where the city assumed no obliga- tion " ; ® " unless the city have the right to proceed to make the property holders liable " ;'' " until the question of abut- ter's liability has been litigated " ; * " except the officers be derelict in their duty a new assessment been reached " ; i^ " money " ; ^^ " if there is no failure of duty on its part " ;^^ are potent with possibilties of differentiation. There is one idea intimated throughout this class of "cases, to the effect that there may be liability for negligence or breach of duty.^* or ciiy has taken steps to make when the limit of indebtedness has if the city has not actually collected the » . 10 a the law upholds local assessments on the theory of benefits, a city which omits the steps necessary to bring it under the operation of the law shall have the same right to enforce its assessments as one which takes those steps would be to deprive the property owner of that which the charter gives him in distinct terms." Buckley v. Ta- coma, 9 Wash. 253, 37 Pac. 441; Thomas v. Olympia, 12 Wash. 465, 41 Pac. 191; distinguishing Stephens v. Spokane, 11 Wash. 41, 39 Pac. 266; Findley v. Hull, 13 Wash. 236, 43 Pae. 28; Steph- ens V. Spokane, 14 Wash. 298, 44 Pac. 541, 45 Pac. 31; German Am. Bank v. Spokane, 17 Wash. 315, 38 L. E,. A. 259, 47 Pac. 1103, 49 Pac. 542; Seavcy v. Seattle, 17 Wash. 361, 49 Pac. 517; Wilson V. Aberdeen, 19 Wash. 89, 52 Pac. 524; R. I. Mortgage & Trust Co. v. Spokane, 19 Wash. 616, 53 Pac. 1104; N. W. Lumber Co. v. Aber- deen, 20 Wash. 102, 54 Pac. 935; N. W. Lumber Co. v. Aberdeen, 22 Wash. 404, 60 Pac. 1115; Potter V. Whatcom, 25 Wash. 207, 65 Pac. 197. Wisoonsin. Whalen v. La Crosse, 16 Wis. 271; Fletcher v. Oskosh, 18 Wis. 229; Hall v. Chippewa Falls, 47 Wis. 267, 2 N. W. 279; Heller v. Milwaukee, 96 Wis. 134, 70 N. W. 1111; Ex)ter V. Superior, 115 Wis. 243, 91 N. W. 651. 5 Peake v. New Orleans, 139 U. S. 342, 35 L. ed. 131, 11 Sup. Ct. Rep. 541. 6 Robinson v. Valparaiso, 136 Ind. 616, 36 N. E. 644. T Craycraft v. Selvage, 10 Bush, 696. 8 Louisville v. Hexagon Tile Co., 103 Ky. 552, 45 S. W. 667. » Hunt V. Utica, 18 N. Y. 442. 10 Thomas v. Olympia, 12 Wash. 465, 41 Pac. 191. 11 German American Bank v. Spokane, 17 Wash. 315, 38 L. R. A. 259, 47 Pac. 1103, 49 Pac. 542. i2Seavey v. Seattle, 17 Wash. 361, 49 Pac. 517. 13 Roter V. Superior, 115 Wis. 243, 91 N. W. 651. 1* Keasy v. Louisville, 4 Dana, 154, 29 Am. Dec. 395; Louisville v. Henderson, 5 Bush, 515; Kem- per V. Louisville, 14 Bush, 87; 659 § 672 THE LAW OF SPECIAL ASSESSMEITTS. 672. Some of the strongest expressions on the part of the courts are to be found in the cases which sustain the ab- solute liability of the municipality. One decision is, that if a municipal corporation which has the power to make a contract for street improvements contracts for them, and stipulates in the contract that the agreed price of the im- provements shall be paid to the contractor out of funds to be realized by assessments upon abutting property, and the city has power to make the assessments, but fails to do so, or fails to make valid assessments, and thereby to provide the fund out of which the contractor may receive the price of his labor and materials, the city is primarily and abso- lutely liable to pay the contract price itself. In cases of this character the city becomes primarily liable, even when the contract expressly provides that the contractor shall ac- cept the assessments in payment of the contract price, and that the city shall not be otherwise liable, whether the as- sesments are collectible or not.^® The learned judge who wrote the opinion made use of the following language: — " One who induces a contractor to perform labor or furnish materials by the promise that a third person, who, he claims owes him a debt or duty, shall pay to the contractor the Pearson v. Zable, 78 Ky. 170 ; 28 U. S. App. 108, 64 Fed. 283, re- Sewall V. St. Paul, 20 Minn. 511, versing same case, 62 Fed. 565; Gil. 459, holding that the contrac- Bill v. Denver, 29 Fed. 344; Ar- tors are the agents of the city, genti v. San Francisco, 16 Cal. and that the latter is liable. 256; Chicago v. People, 56 111. O'Hara v. Scranton, 205 Pa. St. 327; Leavenworth v. Mills, 6 Kan. 142, 54 Atl. 713; Eilert v. Osh- 288 ; Louisville v. Hyatt, 5 B. Mon. kosh, 14 Wis. 687; Finney v. Osh- 199; Michel v. Police Jury, 9 La. kosh, 18 Wis. 210; Durkee v. Ke- Ann. 67; Beard v. Brooklyn, 31 nosha, 59 Wis. 123, 48 Am. Rep. Barb. 142; Reilly v. Albany, 112 480, 17 N. W. 677; Barden v. N. Y. 30, 19 N. E. 508; Com. Portage, 79 Wis. 126, 48 N. W. Nat. Bank v. Portland, 24 Ore. 210. 188, 41 Am. St. Eep. 854, 33 Pac. 10 Barber Asphalt Paving Co. v. 532 ; Bucroft v. Council Bluffs, 63 Denver, 19 C. C. A. 139, 36 U. S. la. 646, 19 N. W. 807; Scofield v. App. 499, 72 Fed. 336; Barber Council Bluffs, 68 la. 695, 28 N. Asphalt Paving Co. v. Harrisburg, W. 20; Miller v. Milwaukee, 14 29 L. R. A. 401, 12 C. C. A. 100, Wis. 699; Fisher v. St. Louis, 44 660 COLLECTIOlir AlTD ENFOECEMENT. § 673 agreed price of the labor and materials he furnishes, cannot enjoy the fruits of the contract, and leave the contractor remediless, either because the debtor does not pay, or because the debt or duty did not exist." For street improvement bonds duly issued, the city is bound, after judgment thereon, to impose a tax upon all taxable property within its limits, to pay such bonds, and the levy is not confined to the prop- erty benefited and improved.'* The liability of the city is not affected because the money was advanced from the gen- eral fund to the special street opening district, and the as- sessment is to repay that advance, the council having control of the various funds. '^^ There are numerous strong and well considered cases holding the doctrine of absolute munic- ipal liability, although many of them are qualified to such an extent as to render their ultimate meaning somewhat doubtful. '« 673. A stipulation in a street improvement contract by Mo. 482; Hitchcock v. Galveston, 96 U. S. 341, 24 h. ed. 659. 16 U. S. V. Fort Scott, 99 U. 8. 152, 25 L. ed. 248. " Gill V. Oakland, 124 Cal. 335, 57 Pae. 150. /otea. isOttumwa B. & C. Co. v. Ain- ley, 109 la. 386, 80 N. W. 510. Kansas. Leavenworth v. Mills, 6 Kan. 288; Garden City V.Trigg, 57 Kan. 632, 47 Pac. 524 ; Heller v. Garden City, 58 Kan. 263, 48 Pac. 841; Atchison v. Byrnes, 22 Kan. 65, because of failure to levy the spe- cial tax agreed upon, and issue improvement bonds therefor. Kentucky. Kearney v. Covington, 1 Met. (Ky.) 339; Louisville v. Leather- man, 99 Ky. 213, 35 S. W. 625; Crayeraft v. Selvage, 10 Bush, €96. 661 Louisimui. Cronan v. Municipality No. 1, 5 La. An. 537; Tournier v. Munici- pality No. 1, 5 La. An. 298. New York. Manice v. Mayor, 8 N. Y. 120. North Dakota. Red River, etc. Bank v. Fargo (N. D.), 103 N. W. 390. Oregon. Com. Nat. Bank v. Portland, 24 Ore. 188, 41 Am. St. Rep. 854, 33 Pac. 532; Little v. Portland, 26 Ore. 235, 37 Pae. 911; Jones v. Portland, 35 Ore. 512, 58 Pac. 657; These cases went upon the ground of the neglect of the city for five years to press the trial of an in- junction suit. Pennslylvamia. Addyston Pipe & Steel Co. v. Corry, 197 Pa. St. 41, 80 Am. St. Rep. 812, 46 Atl. 1035. § 674 THE LAW OF SPECIAL ASSESSMENTS. whieh the contractor binds himself not to sue the city imtil it shall be finally adjudged that the property owners are not liable, is void.^' Where the nature or ownership of the adjacent property is such that no steps which could have been taken would have rendered it or its owner liable, then the city must pay for the improvement, or it will have as to such work no means of executing its general power to improve all streets,*" and a charter provision that the city shall in no event be liable for the cost of such an improve- ment withoiut the right to enforce it against the property benefited applies only to cases where the city has authority to make improvements at the exclusive cost of the property benefited.*^ The city becomes liable absolutely after the money is collected and paid into its treasury ; ** and where such fund is collected, and from such fund the city pays cer- tain warrants, while prior warrants drawn against it remain unpaid, such action constitutes a damage to the holder of the prior warrants, for which the city is liable.^* Liability arising from creation of special fund. 674. Money derived by a city from special assessments Washington. Superior, 115 Wis. 340, 91 N. W. Delay of five years in taking 1104. necessary steps. Stephens v. Spo- lo The court places its determi- kaue, 11 Wash. 41, 39 Pac. 266; nation on the ground that it is to Stephens v. Spokane, 14 Wash. 298, the interest of the country, as 44 Pac. 541, 45 Pac. 31; Bank of well as the parties concerned, that Port Townsend, 16 Wash. 450, 47 controversies should be determined Pac. 896 ; McEwam v. Spokane, 16 as speedily as is consistent with Wash. 212, 47 Pac. 433; but over- the rights of those concerned, ruled in German Am. Bank v. Louisville v. Henderson, 5 Bush, Spokane, 17 Wash. 315, 38 L. R. 519. A. 259, 47 Pac. 1103, 49 Pac. 542; 20 Crayeraft v. Selvage, 10 Bush, Sheafe v. Seattle, 18 Wash. 298, 698. 51 Pac. 385 ; N. W. Lumber Co. v. 21 Caldwell v. Rupert, 10 Bush, Aberdeen, 22 Wash. 404, 60 Pac. 179. 1119- 22Hendriek v. W. Springfield, Wisconsin: 107 Mass. 541. Allen V. Janesville, 35 Wis. 403; 23 N. ^f. Lumber Co. v. Aber- State V. La Crosse, 101 Wis. 208, deen, 22 Wash. 404, 60 Pac. 1115 77 N. W. 167; Uncas Nat. Bank v. 662 COLl.ECTIOH' AND EWFOECEMEWT. § 6Y5 becomes a trust fund in its custody to be applied to tbe re- demption of warrants drawn upon such fund in tbe order in which the warrants were presented for payment, and the city is liable to any warrant holder whose rights have been infringed by a misapplication of such funds. '^^ Where the city has received from the property owner the amount of taxes and special assessments levied for the specific pur- pose of paying for a work of local improvement, it cannot justify its refusal to redeem the warrants issued in payment of such work on the ground that the contract and taxes and assessment for the improvement were invalid because in vio- lation of constitutional or statutory provisions designed solely for the protection of the taxpayers.^® But when a street improvement contract provides that the cost shall be paid out of a special fund arising from an assessment upon the property benefited, the mere fact that the amount real- ized from a valid assessment according to benefits is inade- quate to^ meet the cost of the improvement would not render the city liable for the difference out of its general fund.*® 675. The general rule deducible from the authorities is to the effect that before a city can be required to pay from its general fund warrants drawn upon a special fund, it must appear not only that the first assessment has not been col- lected by the proper authorities by reason of fault on their part, but also that no steps have been, or can be taken for purpose of providing for the payment of the warrants by the making of a new assessment.*^ The city will not, how- ever, be held liable for failure to provide a special fund where it has no power to construct street improvements pay- 2*Eed River, etc. Bank v. Fargo ment until the bar of the statute (N. Dak.), 103 N. W. 390. of limitations intervenes. Bank v. 25 Red River, etc. Bank v. Fargo, Port Townsend, 16 Wash. 450, 47 Pae. 896; Wilson v. Aberdeen, 19 28 Potter V. Whatcom, 25 Wash. Wash. 89, 52 Pac. 524; R. I. 207, 65 Pac. 197. Mortgage & Trust Co. v. 27 Stephens V. Spokane, 14 Wash. 19 Wash. 616, 53 Pac. 1104; N. 298, 44 Pac. 541, 45 Pac. 31. W. Lumber Co. v. Aberdeen, 22 Or by failure to provide for pay- Wash. 404, 60 Pac. 1115. 663 § 676 THE LAW OF SPECIAL ASSESSMEITTS. able out of the general fund,^* nor where the constitutional limit of indebtedness has been reached before making the contract,^* nor for interest until the collection of the new assessment.*" Unreasonable delay on the part of the city, for five years, to enforce the collection of the special fund to*be provided under a contract providing the contractor shall look only to that fund for payment, will make it liable for damages at the suit of the holders of the warrants.^^ Where there is no money in the special fund with which to pay the orders dravsra against it, a suit will not lie on the orders, but the remedy is by proceedings to compel the authorities to make the assessment and mandamus in such case is ap- propriate.*^ 676. A city may compromise with the owners of prop- erty abutting upon a street improvement and accept from them a less sum than the assessments levied, against them, but in that case the city becomes liable to a warrant holder for the payment from its general fund for the amount of 28 German Am. Bank v. Spokane, lection of the assessments neces- 17 Wash. 315, 38 L. E. A. 259, sary to make such payment. Lit- 47 Pac. 1103, 49 Pac. 542; Louis- tie v. Portland, 26 Or. 235, 37 Pac. ville V. Leatherman, 99 Ky. 213, 911; Jones v. Portland, 35 Or. 35 S. W. 625. 512, 58 Pac. 657; Com. Nat. Bank 29 Soule V. Seattle, 6 Wash. 315, v. Portland, 24 Or. 188, 41 Am. 33 Pac. 384; German Am. Bank v. St. Eep. 854, 33 Pac. 532. But Spokane, 17 Wash. 315, 38 L. E. see, oontra, Thomas v. Olympia, A. 259, 47 Pac. 1103, 49 Pac. 542. 12 Wash. 465, 41 Pac. 191. 30 Soule V. Seattle, supra; Un- sa Second Nat. Bank v. Lansing, cas Nat. Bank v. Superior, 115 25 Mich. 207; Seavey v. Seattle, Wis. 340, 91 N. W. 1004. But 17 Wash. 361, 49 Pac. 517; Ger- see Addyston Pipe & Steel Co. v. man Am. Bank v. Spokane, 17 Corry, 197 Pa. St. 41, 80 Am. St. Wash. 315, 38 L. E. A. 259, 47 Eep. 812, 46 Atl. 1035. Pae. 1103, 49 Pac. 542; Kiley v. 31 The contract provided that the St. Joseph, 67 Mo. 491; Whalen v. contractor "will not compel the La Crosse, 16 Wis. 271; Fletcher city by legal process or otherwise v. Oshkosh, 18 Wis. 229. And the to pay for the improvement out city oflScers are adverse parties of any other fund. The city failed who may appeal from a judgment for five years to press to trial an annulling an assessment, injunction suit restraining the col- 664 COIXECTIOW AlfD EINFOBCEMENT. , § 677 the assessment remitted by it.*' Where the municipality has agreed with a contractor to make certain sidewalks at a fixed price, one-third to he paid from the general fund, and the balance by the front proprietors, and it having by suit been determined that such proprietors were liable only for one-third, the city will be considered a warrantor for the balance, and held liable for that sum.** Keasons for non-liability. 677. A city is not made liable to the holders of special assessment certificates because it failed to appeal from a de- cision holding such certificates void because the charter failed to provide for proper notice ; *^ nor because the char- ter provision empowering the city to do the work at the expense of abutting owners was rendered inoperative by reason of a failure to provide by ordinance for the mode in which the charge on the respective owners shall be deter- mined ; *^ nor will it be held liable as a guarantor for the collection of the special certificates which provide that the holder thereof shall " have no claim upon, said city, in any event, except from the special assessment made for said work, .and the' collection of the same as provided by law," nor for failure to collect, if there be no failure of duty on its part ; *'' nor because of a deficiency resulting from the fact that the assessment upon some of the lots exceeded their value ; ** nor because of non-compliance by the city with the statute governing such matters ; *® nor where by reason of the de- fective passage of an ordinance the special tax bills became 33 Sheafe v. Seattle, 18 Waah. 447. To the ordinary mind this 298, 51 Pac. 385. appears to justify confiscation. 34 Toumier v. Municipalityt No. 39 Wheeler v. Poplar Bluffs, 149 1, 5 La. An. 298. Mo. 36, 49 S. W. 1088. It must 35 Roter V. Superior, 115 Wis. be admitted that this ease is eon- •243, 91 N. W. 651. trary to the weight of authority, 38 Findley v. Hull, 13 Wash. and apparently permits the mtmic- 236, 43 Pac. 28. ipality to take advantage of its 37 Eoter V. Superior, supra. own wrong. 38 Creighton v. Toledo, 18 0. St. 665 § 678 THE LAW OP SPECIAL ASSBSSMEH'TS. worthless ; *" nor under the provisions of a contract that it will " duly and without delay collect the special assessmenta therefor," when the improvements were constructed on the assessment plan, and there was no attempt to construct them at the expense of the city generally.*^ 678. Where a city has in good faith adopted and car- ried out the plans for a sewerage system made by a com- petent sanitary engineer of high standing in his profession, it is not liable for the cost of additional or substituted im- provements made necessary by the growth of the city.^^ Under the Indiana Barrett law, the liability of the city to pay the contractor is but secondary, and arises only when it has sold, assessed, collected assessments, or otherwise realized the amounts owing from the property benefited, and the con- tractors have not been paid.*^ The city binds itself only to the exercise of diligence in the collection of the assess- ment, and it is beyond its power to bind itself to the creation of the fund within a certain time.** Although a contractor fails to complete a street improvement within the time spe- cified, the assessment cannot be avoided by a lot-owner who does not show himself injured thereby.*^ Numerous other cases on the general subject of liability will be found in the marginal note.*® *o Keating v. Kansas City, 84 Construction of contract agree- Mo. 415. ment. *i N. W. Lumber Co. v. Aber- *8 a charter provision that " any deen, 20 Wash. 102, 54 Pae. 935. person taking any contracts with 42 Shannon v. Omaha (Neb.), the city, and who agree to be paid 103 N. W. 53. from special assessments, shall *s Porter v. Tipton, 141 Ind. 347, have no claim or lien upon the 40 N. E. 802. city in any event, except from the ** Stephens v. Spokane, 14 collections of the special assess- Wash. 298, 44 Pac. 541, 45 Pac. ments made for the work con^ 31. traeted for," was not intended to *B Fass V. Seehawer, 60 Wis. preclude the courts from deter- 525, 19 N. W. 533. There can be mining the legal effect of the eon- no recovery for loss to the business tract. And where the city has no of the occupant of the lot. Stad- such assessment as it purports to ler V. Milwaukee, 34 Wis. 98. have, the party is to be deemed 666 COLUECTIOW AJSTD ENFOBCEMEiNT. 679 Collection — In general. 679. The method of collecting the special assessment is almost uniformly definitely prescribed by the statute which confers the authority to levy the assessments, and a strict as not so agreeing. The condition is void and the promise single. And the last clause of the provis- ion, " And no work to be paid for by a special assessment shall be let, except to a contractor or contractors who will so agree," is merely directory, for the contrast is not declared void for want of compliance, no penalty imposed, nor the power affected. Chicago V. People, 56 111. 327. Promise of city to pay, after defi- ciency. When a city has power to pay the cost of a, special street im- provement, in whole or in part, out of its general fund, and also power to bind itself to pay any deficiency remaining after the ex- hausting of the special fund, its promise to do so after a deficiency is found to exist is valid under the rule governing the ratification of contracts, whereby the power to make the contract forms the basis of liability and the performance of the act furnishes the consideration. Quaker City Nat. Bk. v. Tacoma, 27 Wash. 259, 67 Pac. 710. Spe&ial assessment a trust fund. Money raised by special assess- ment, for paving certain streets is a trust fund, and cannot law- fully be appropriated by the city to pay for paving other streets, and a city applying a fund raised by assessment on land for pav- ing certain streets to the paving of other streets, becomes indebted — to such fund, and increases its indebtedness within the constitu- tional provision relating to debt limit. Allen v. Davenport, 107 la. 90, 77 N. W. 532. Failure of dty to collect. If a city promise to pay a sum of money when it shall collect its demands of another, and it ap- pear that it had no demands, or if it have and fail to use due diligence to collect them, in either ease the promise may be enforced as absolute. Chicago v. People, 56 111. 327; White v. Snell, 5 Pick. 425, 9 Pick. 16. Extent of contractor's vested right. The vested right of a city con- tractor to have the city proceed to leivy a special tax to pay for an improvement is not affected or im- paired by a statutory change in the method of apportioning the tax among the lots subject thereto. Palmer v. Danville, 166 111. 42, 46 N. E. 629. Agreement — Exempt property. Notwithstanding a contract that the pay for work should be re- ceived from the proioeeds of a special assessment, and no claim made against the city except from the proceeds thereof, yet where a part of the assessment could not be collected because of a contract by the city with the owner of the property expressly exempting it from such tax, of which agree- ment the contractor had no knowl- edge when he assented to thie 667 1§ 679 THE LAW OF SPECIAX, ASSESSMENTS. compliance with the provisions of the statute must he shown to sustain a recovery, the power to collect in a summary method, by lien on the property benefited, and sale thereof conditions of the contract, he would have his remedy against the cily to recover the amount to which he was entitled. Chicago v. People, 56 111. 327. See, also, Chicago V. People, 48 111. 416. Effect where contractor agrees to look solely to special assessment, A contractor who has agreed to loook solely to the proceeds of a special assessment for his pay, taking the risk of its invalidity, has no right of action against the city f»r an unpaid balance, in the event the assessment is set aside, unless the ordinance is void, or the city, having the power to levy a new assessment, has refused to act Foster v. Alton, 173 111. 687, 51 N. E. 76. Equity, Where the council has power to make an assessment, equity will not assume jurisdiction, to re- strain the collection thereof, under a warrant against complainant's personal property, but will leave him to his remedy at law. Wil- liams V. Detroit, 2 Mich. 560. Assumpsit — • Failii/re to collect as- sessment. If a, municipal corporation, in dealing with individuals, assumes that it possesses corporate powers upon which the validity of its acts depends, and it turns out that it does not possess the spe- cific powers relied on, it is not thereby excused from the perform- ance of its obligations, if they can be performed through the agency of other powers that it does possess. Maher v. Chicago, 38 111. 266. In accordance with above, it was held that the city was liable on an implied contract for labor performed, no special assessment having been levied as agreed. But see Chicago v. People, 48 111. 416, distinguishing Maher's case as be- ing one where the city had no power to levy an assessment. Constructiort of statute. A section of the Portland char- ter providing that if, upon the completion of any street improve- ment, the cost of which has been declared by the council to be a charge upon the adjacent property any assessments levied to pay therefor shall have been or may thereafter be found or adjudged to be invalid for any reason what- ever, whether jurisdictional or otherwise, the city shall then have power to bring an action in the circuit court against the owners of the several parcels of land upon which the cost of such improve- ment has been charged, and re- cover from such owners their re- spective portions of the cost of such improvement, and of the costs and disbursements of such action, and that a lien therefor shall be declared upon the premises as- sessed for such improvement, is not unconstitutional as authoriz- ing a personal judgment against the owner, and imposing upon him obligations not provided for in the charter at the time of the im- provement, since it does not eon- 668 COU-BCTIOIir AND EaSTFOECEMENT. § 680 resting solely on statutory authority.*'^ Where the statu- tory proceedings necessary to authorize a special tax bill have not been observed in some particulars, the tax will be held invalid only as to what was done outside of the law.** Mere general language used in a statute giving a city power to levy local assessments will not authorize the enforcement of special tax bills against property of the state or county strictly devoted to public uses.** Special tax bills for street improvements are sustainable under the taxing power; and where that power is regularly exerted, the propriety of the special tax is not reviewable by the courts,®" and legislation making them prima facie evidence of the liability of the owner named therein is not an encroachment on the judicial power, but is valid.®^ Under the principle of benefits, the enforcement of an assessment for local improvements upon property not at all benefited thereby is the taking of prop- erty without due process of law.®^ The determination of a mimicipal board as to the necessity of the construction of a sewer and the district benefited, cannot be assailed in an action to enforce an assessment therefor, on the ground that no outlet was provided for the sewage.®* 680. Occasionally special assessments are made collec- tible through the same process and machinery as are gen- eral taxes,®* but in practice they are usually enforceable template a personal judgment *o Clinton v. Henry Co., 115 Mo. against the property owner which 557, 37 Am. St. Eep. 415, 22 S. may be generally enforced against W. 494. his property, but authorizes the bo Moberly v. Hogan, 131 Mo. recovery of a judgment against 19, 32 S. W. 1014. the property owner to be enforced oi gt. Joseph v. Farrell, 106 Mo. only against the property liable 437, 17 S. W. 497. for such improvement. Nottage v. »" Or. & Cal. R. R. Co. v. Port- Portland, 35 Or. 539, 76 Am. St. land, 25 Or. 229, 22 L. R. A. Eep. 513, 58 Pac. 883. 713, 35 Pac. 452. But see Whit- 4T Haskell v. Bartlett, 34 Cal. ing v. Townsend, 57 Cal. 515. 281; State v. Beverly, 53 N. J. L. sa Harney v. Benson, 113 Cal. 560, 22 Atl. 340. 314, 45 Pac. 687. *8 Johnson v. Duer, 115 Mo. 366, 04 Highlands v. Johnson, 24 21 S. W. 800. Colo. 371, 51 Pac. 1004; State v. 669 § 680 THE LAW OF SPECIAL ASSESSMENTS. through, certificates of the mttaicipality issued to the con- tractor who did the work, and by the contractor directly in an action in the nature of a foreclosure, or by the muni- cipality through the sale of the property, in case of non- payment of the tax. In California, an action to recover an assesment levied for reclamation purposes in a swamp land district, may under the statute be prosecuted in the name of the people of the state.®® To sustain such an ac- tion, for the recovery of the amount due on a special as- sessment against a lot owned by several persons, it is suffi- cient to show that the defendants were owners thereof in fee, without regard to the particular undivided interest claimed by one defendant in his answer.®* An assessment for street work sought to be enforced as an entirety must stand or fall as a whole, and if it includes the cost of work not legally chargeable upon the property sought to be charged therewith, it cannot be enforced.®'' But where the charter does not require the completion of a street improvement be- fore the collection of the assessment therefor, the property owners may be compelled to pay such assessment, although the work may have never been completed, owing to the ex- haustion of the estimate made by the engineer.®* Where a statute creates a new right, and prescribes the remedy, the statutory remedy is exclusive.® 69 Hobe, 106 Wis. 411, 82 N. W. os Felker v. New Whatcom, 16 336. It was early held in Illinois, Wash. 178, 47 Pac. 505. before the enactment of statutes 59 Clinton v. Henry Co., 115 Mo. governing the procedure, that they 557, 37 Am. St. Eep. 415, 22 S. could be collected in an action of W. 494. debt, the old remedy by distress Printed signature. not being necessao-ily exclusive. In an action for foreclosure of a Ryan v. Gallatin Co., 14 111. 78; street assessment, held, the printed Dunlap V. Gallatin Co., 15 111. 7. signature of the clerk to the reso- 65 People V. Hagar, 52 Cal. 171. lution of intention was sufficient. 68 Whiting V. Towusend, 57 Cal. Williams v. McDonald, 58 Cal. 515. 527. 6T Partridge v. Lucas, 99 Cal. Assignment of certificate. 519, 33 Pac. 1082. The purchaser of an assessment 670 COIiEOTIOir AlTD HNFOECEMEITT. § 681 Collection by city. 681. It is essential to the right of a city to collect the amount of special taxes for street improvement, to show affirmatively that the ordinance and all provisions of the charter have been complied with.®" Thus where the charter requires that in order to collect from adjoining property owners the amount of an assessment taxed for opening a street, it must appear that before instituting condemnation proceedings an attempt had been made to agree with the 6wner for the purchase of the property, such duty is im- perative and is a condition precedent to the exercise by the city of any jurisdiction to proceed.®^ Failure to appeal to certificate is chargeable with no- tice of the records, proceedings and authority of the authority issuing same. Talcott v. Noel, 107 la. 470, 78 N. W. 39. Collection from ovmers is collection from the property. The collection of a special tax for a street improvement levied against the right of way of a Rail- road Company from the owners of such property as provided by stat- ute, is a collection from the prop- erty. C. E. I. & P. R. Co. v. Mo- line, 158 111. 64, 41 N. B. 877. 80 Hoover v. People, 171 111. 182, 49 N. E. 367; People v. Cash, 207 111. 405, 69 N. E. 904; Worthing- ton V. Covington, 82 Ky. 265; St. Louis V. Ranken, 96 Mo. 497, 9 S. W. 910; Cole V. Skrainka, 105 Mo. 303, 16 S. W. 491; Spokane Falls V. Browne, 3 Wash. 84, 27 Pac. 1077. 61 Leslie v. St. Louis, 47 Mo. 474. No recovery where assessment il- legal. Where an assessment is illegal because of attempting to charge property with improvements for which it is not .liable, there can be no recovery, in an action to fore- close such assessment, of the amount that is properly chargeable against the property. Vancouver v. Wintler, 8 Wash. 378, 36 Pac. 278, 685. Duty lof city — Trustee. Under a statute authorizing a city to improve streets and issue bonds to pay the cost thereof, assess such cost on abutting prop- erty, and providing that such as- sessments shall constitute a sink- ing fund for the payment of the bonds, and not to be used or ap- propriated for any other purpose, the city, after having issued such bonds, is chargeable as a trustee with the duty of collecting and ap- plying such assessments, and may be restrained from applying them to any other purpose. Vickrey v. Sioux City, 104 Fed. 164. Duty of city to levy tax — Char- ter. Where a charter requires the street commissioners to give the contractor for street work a certifl- 61-i 682 THE LAW OF SPECIAL ASSESSMENTS. the council on account of irregularity in the assessment waives such irregularity as might have been corrected on such appeal.*^ Collection by contractor. 682. In bringing suit to recover on a special assessment certificate for grading a street, the plaintiff takes the onus cate of the work done, and amount due therefor from the owner of each lot fronting on the street; and in case such amount be not paid before the time for making out the annual assessment roll, it was to be assessed upon the lot, and collected for the use of the certificate holder, as other real estate taxes are collected, and in no event, where work was ordered done at the expense of a lot, was either the city or any ward to be held responsible for the payment thereof, — it is the duty of the city to see that unpaid assessments are put upon the next annual as- sessment roll, and to take the pre- scribed steps to collect the taxes, if unpaid. Finney v. Oshkosh, 18 Wis. 210. To recover the amount charged against a lot for street improve- ments, a substantial compliance with the law must be shown. If the work has been done in a manner satisfactory to the officer entrusted with its supervision, and has been received by the corpora- tion and paid for, a, prima facie case is made out. The defendant may show that there has been a, neglect of duty on the part of the authorities entrusted with the execution of the work, and if this neglect or omission has injured him, such facts may constitute a 672 defense. St. Joseph v. Anthony, 30' Mo. 537. eaMcSherry v. Wood, 102 CaU 647, 36 Pac. 1010. Mere irregularity mil not prevents In an action by a city for the use of a contractor to recover the amount of a paving assessment, an objection that the notice of meet- ing of the commissioners was pub- lished twenty-nine days only, in- stead of thirty, was a mere ir- regularity which might have been availed of on an appeal from the proceedings under the ordinance, but cannot be relied on in this action. Dashiell v. Mayor, etc., iS- Md. 615. Payment in depreciated warrants.^ Where a city is required to pay more in city warrants on account of their depreciation than it would have to in cash, for street paving, the ultimate cost of which is chargeable against the abutting lots, such fact will not affect the right of the city to enforce the collection of an assessment against the lots for the full amount paid.. Warren v. Henley, 31 la. 31. Contract let prior to charter change. Where a street improvement contract was let and work partly done prior to adoption of a new charter changing the manner of assessment, such change does not COLLECTIOJSr AND EWFOKCEMENT. § 682 of establishing the facts that the conditions precedent were all performed ; and the facts should be pleaded, to constitute a cause of action.®* It is his duty to inform himself as to an ordinance on which his contract is based, and the perform- ance of which is the basis of his claim.®* He cannot recover against a city for work done under a grading contract void because the city had not taken the necessary steps to acquire the jurisdiction to make it, nor against the property owners upon assessment bills issued against them where it turns out that the work done by him was so defectively done as to be worthless. And the property owner is not precluded from making this defense because he is not a nominal party to the contract.® ° But where a city was empowered by its charter and ordinances to contract for the construction and repair of streets, and it entered into a contract to have such work done as the street commissioners should order, and afterwards stopped the Work and prevented the issuance of special tax bills, the city was held liable on such contract for afifeet the right of the city to en- force its equitable claim to re- imbursement from the property owner for the contract obligations incurred by the city in such imr provement. Spokane v. Browne, 8 Wash. 317, 36 Pac. 26. Liability of petitioners. Where sixteen property owners signed a petition for sinking arte- sian wells containing the words, " The petitioners to be responsible for all expenses that may occur in sinking said artesian wells, if a failure should take place in the attempt to procure water," and there being a failure to procure water, and an abandonment of the work, the petitioners were held re- sponsible and not the city. Rup- pert V. Mayor, etc, 23 Md. 184. esMcComb v. Bell, 2 Minn, 295, Gil. 256. 6* State V. Michigan. City, 138 Ind. 455, 37 N. E. 1041. Where the city council let a' contract for street work without observing the charter requirements, the contractor doing such work is bound to take notice of the pro- visions of law and limitations upon the authority of the council to contract, and cannot hold the city liable for the work done. Johnson v. Indianapolis, 16 Ind. 227. 65 Mayor v. Eschbach, 18 Md. 276; Pepper v. Philadelphia, 114 Pa. St. 96, 6 Atl. 899. But the statement in the last case must be accepted as going to the extremest limit. 43 673 §§ 683, 684 THE LAW OF SPECIAL ASSESSMENTS. the work actually done by the order of the commission- ers.*® Contract induced by f and. 683. If the council are induced by means of fraud or corruption to modify a contract, their action can by the courts be declared null and void, and the invalidity of such action is available as a defense in an action by the con- tractor upon the contract.®^ If a contractor for street im- provements makes contracts with various lot owners to do their work at less than the price named in the contract, and before it is let, such private contracts are in fraud of the law under which the streets are improved. Such fraud is not a defense in an action by the contractor to recover the assessment, but the remedy of the lot owners is by appeal to the proper forum.® ^ Defective or unfinished contracts. 684. Where a contract for street paving includes several disconnected streets, the fact that the paving on some of them is unfinished will not prevent recovei^ on special tax bills for work on other streets where the work has been com- pleted.®' As sureties upon a contractor's bond are entitled to stand on the original contract to insure the due perform- ance of which the bond is given, and the contract is de- fective, there can be no correction of such contract on appeal to the board.'"* 68 Wright V. St. Louis, 135 Mo. pair of streets, and entered into 144. As to effect of a mistake in a a contract to have done such work receipt for payment of an assess- as the street commissioners should ment, see Wolf v. Philadelphia, order, but afterwards stopped the 105 Pa. St. 25. work and prevented the issuance 67 Weston V. Syracuse, 158 N. Y. of special tax bills, the city is 274, 43 L. E. A. 678, 70 Am. St. liable on such contract for the Rep. 472, 53 N. E. 12. work done by the order of the com- es Nolan V. Reese, 32 Cal. 484. missioners. Steffen v. St. Louis, 69 Neenan v. Smith, 60 Mo. 292. 135 Mo. 44, 36 S. W. 31. Where a city is empowered by to gehwiesau v. Mahon, 110 Cal. its charter and ordinances to con- 543, 42 Pac. 1065. tract for the construction and re- The fact that an unusual and 6Y4 COULECTION AND EWFOECEMEWT. § 685 Bemedy of contractor. 685. Wliere a statute provides that a contractor who has faithfully performed his contract shall be paid the amount due thereon from a certain fund, after the assessment has been declared invalid by the highest court, if such invalidity shall appear by such decision to have been caused by the fault of the contractor, the judgment rendered in the action to foreclose the assessment and determine its invalidity is not conclusive upon the contractor in a subsequent action by him against said city to recover the amount due on the contract, as to the grounds upon which the assessment was held invalid.''^ If a contractor has paved the streets on both sides of a street railway track, he should not be denied the right to enforce his tax bills against the abutting owners, because of the failure of the city to force the street railway company to do the paving between, as required by the or- dinance.'^* It has been decided that a charter provision authorizing the contractor for street grading to recover by civil action against the owner is invalid,''^ as well as that a local assessment may be enforced in proceedings against the one in possession under a registered title, when the statute creates a lien on the property.'^* Where the period of five unsuitable season was selected by street, there is no such original the city authorities for paving a paving as will prevent a city eon- street, thereby increasing its cost, tractor from subsequently recover- is not a defense to an action for ing from a property owner the the assessment under a statute per- contract price for laying a vitri- mitting the defense that the price fled brick pavement duly author- paid was too high, there being ized. Philadelphia v. Hill, 166 Pa. nothing to show that the selection St. 211, 30 Atl. 1134; Philadelphia of such time of the year was an v. Dibeler, 147 Pa. St. 261, 23 improper exercise of discretion. Atl. 567. Philadelphia v. Evans, 139 Pa. St. t2 Springfield v. Weaver, 137 Mo. 483, 21 Atl. 200. See Stadler v. 650, 37 S. W. 509, 39 S. W. 276. Milwaukee, 34 Wis. 98. t3 McComb v. Bell, 2 Minn. 295, TiGafney v. San Francisco, 72 Gil. 256. Cal. 146, 13 Pac. 467. t4 Kelly v. Mendelsohn, 105 La. Where money appropriated for 490, 29 So. 894. repairs is used in macadamizing a 675 THE I^W OF SPECIAL ASSESSMENTS. days is provided within which the property owners may do certain street work, has not expired, but nevertheless a con- tract to do such work is let, the contract was let without jurisdiction, and is void, and was not validated by a failure to appeal.^® A demand for the a^regate sum due on two lots, under a street assessment, is insufficient. The demand should be on each lot, for the amount assessed thereon, and it may be made by the contractor who has assigned it as se- curity for a loan, as the title remains in him.'" Collection from property exempt from execution. 686. It is no objection to the validity of an assessment against property which by law is exempt from seizure and sale on execution, such as cemetery and school lands, that no specific statutory method of collection is provided, as the assessment may be enforced by a suit in equity; or in any case by due course of law in the institution of judicial pro- ceedings.''^ 76 Burke v. Tumey, 54 Cal. 486. 78 Schirmer v. Hoyt, 54 Cal. 280; Foley V. Bullaid, 99 Cal. 516, 33 Pac. 1081. Repeal of law — Tested right — Merger. The repeal of the law under which a street improvement was made after the work was com- pleted and precept ordering sale was issued, does not take away the remedy of the contractor, as his claim is merged in what is equivalent to a judgment and exe- cution levied upon property, and is a vested right of which he cannot be deprived by the legisla- ture. Palmer v. Stumpf, 29 Ind. 329. Dividing lot — Right of contractor — lAen. After the assessing board has acquired jurisdiction to proceed to improve a street, and when the contract is made a certain por- tion of land abutting constitutes one lot, the contractor is entitled to have the assessment made against that lot as a whole, in one assessment, and his right may not be defeated by cutting up the lot, and selling parcels, and his lien attaches to the entire lot. Dough- erty V. Miller, 86 Cal. 83. 77 Chicago, etc. v. Chicago, 207 111. 37, 69 N. B. 580; Lima v. Cem- etery Ass'n, 42 O. St. 128, 51 Am. Eep. 809; Merriam v. Moody's Ex'rs, 25 la. 163. Where the statute provides that the assessments have the eflf^ct of a tax, the tax is a debt for the re- covery of which a personal action against the owner will lie. Mus- catine V. C. R. I. & P. B. R. Co., 79 la. 645, 44 N. W. 909. COIXjBCTIOIf AND ENFOBCBMEWT. §§ 687, 688 Penalties for non-payment. 687. The discretionary authority vested in municipalities to levy and collect taxes, in respect to the imposition of penalties for non-payment extends only to taxes for general purposes. In case of special assessment, only such penal- ties as are provided by statute can be imposed. A warrant to a city officer to collect a special assessment, and five per cent additional thereto, is valid, when authorized by char- ter.^» Limitations. 688. A municipality in making a contract for paving streets may limit the time within which actions based on the contract may be brought by the contractor. The bar of the statute upon the commencement of an action to en- force the collection of an assessment for a street improvement begins to run, not from the day the assessment is made due and payable and operative as a lien upon the property, but from the date of delinquency as provided in the ordinance providing for the levy and collection of the assessment.^® A sewer assessment, being a tax, 29, 6 N. W. 65 ; State v. Ironton, cannot be collected as an ordinary 63 Minn. 497, 65 N. W. 935; Wil- debt by a common law action, im- liams v. Detroit, 2 Mich. 560. less such remedy is given by stat- But assessments for benefits Can- ute. McKeesport v. Fidler, 147 Pa. not be enforced by fines or penal- St. 532, 23 Atl. 799; Lane Co. v. ties imposed by ordinance. Grid- Oregon, 7 Wall. 71, 19 L. ed. 101, ley v. Bloomington, 88 111. 554, 30 and cases cited. Am. Eep. 566. An action of assumpsit will not Interest after dite. lie to recover a municipal assess- Where execution is lawfully is- ment for paving a street. Phila- sued by a city to collect of a prop- delphia v. Muklee, 159 Pa. St. 515, erty owner an assessment for a 28 Atl. 360. street improvement, it is entitled Nor for the construction of a to interest on the amount due, at sewer. Philadelphia v. Bradfleld, least from the date of such execu- 159 Pa. St. 517, 28 Atl. 360. tion. Bacon v. Savannah, 105 Ga. Note. Both above decisions 62, 31 S. E. 127. When interest went upon the ground that the not recoverable, see Seattle v. legislative remedy by proceedings Hill, 23 Wash. 92, 62 Pac. 446. in rem was exclusive. t9 Barber Asphalt Pav. Co. v. TsAnkeny v. Hemingsen, 54 la. Erie, 203 Pa. St. 120, 52 Atl. 22; 677 §'§ 689-691 THE LAW OF SPECIAL ASSESSMENTS. Who may collect. 689. The assessment must be collected by the officer specially designated for that purpose. Under an act creat- ing a district within a county, and authorizing the super- visors to levy a tax thereon for building a bridge, the prop- erty within such district cannot be assessed by, or the tax collected by, the assessor and collector elected by the coimty.*" Completion of work. 690. Where 'the work was not completed when the tax bills were made out, but was finished within two weeks there- after, and before suit was brought, the law requiring the work shall not be a special charge against property until completed, is substantially complied with.*' Pleading. 691. A complaint to collect an assessment is bad on de- murrer, unless it shows either by averment or by exhibits properly constituting a part of it, that some notice was given of the filing of the petition.*^ In such an action for the enforcement of a special street improvement assessment, it is not necessary that the depth and width of the improve- ment and the kind of material to be used should be definitely stated, when the resolutions and ordinances passed by the Seattle v. O'Connell, 16 Wash. 625, made an order approving the pe- 48 Pac. 412. tition. Held, defective, as not 80 Smith V. Farrelly, 52 Cal. 77. showing a publication for four 81 Kiley v. Cranor, 54 Mo. 54. weeks next preceding the hearing. See, also, Weber v. Schergens, 59 and in not showing that the board Mo. 389. noted its approval on the petition 82 Kennedy v. State, 109 Ind. itself. People v. Haggin, 57 Cal. 236, 9 N. E. 778. 579. Requisites of complaint. Where the statute prescribes In an action to recover for a what must be averred in a com- special assessment, the complaint plaint for the enforcement of an alleged that the requisite petition assessment, the statutory provi- was published for four weeks end- sions govern. Whiting v. Town- ing February 25th, and that on send, 57 Cal. 515. ?iay 2nd thereafter the board 678 COLLECTIOlir AHD EaSTFOECEMEWT. § 692 board, and the contract and specifications fixing these par- ticulars are referred to.®* An objection in a proceeding to enforce the collection of a special assessment for street pav- ing, that such assessment is void because not based upon the benefit" to said property, and in violation of the Fourteenth Amendment, sufficiently presents the constitutional objec- tion, and is not subject to demurrer by reason of its gen- erality.** In a suit on a special tax bill for paving a side- walk in front of defendant's lot, it must appear that the charter requisites that the work was done by virtue of an ordinance duly passed, and that the city engineer, in com- puting the cost of the work, only charged defendant's lot in proportion to the frontage thereof; otherwise, a deniurrer is properly sustained.®^ An allegation that the contract was obtained by a fraudulent combination among bidders will not prevent the recovery for the contract price, where the work was accepted by the authorities as a full com- pliance with the contract. If true, it would only reduce the amount to the extent of the actual injury sustained.*® Counterclaim — Demurrer. 692. In an action by a city to recover benefits for street improvements, the defendant cannot offset a claim for ma- ss Deane V. Indiana, etc, Co., |ratB, and on all the property 161 Ind. 371, 68 N. E. 686. fronting on the improvement. 8* City Council v. Birdsong, 126 Treanor v. Houghton, 103 Cal. 53, Ala. 632, 648, 28 So. 522. 36 Pae. 1081. Vniform rate on all frontage. 85 Irwin v. Devors, 65 Mo. 625. An allegation in a complaint 88 Hubbard v. Norton, 28 O. St. that the proper authority " made 116. in the manner and form required When eomplamt sufficient. by law, an assessment upon the In an action to foreclose an as- lots and lands fronting thereon, sessment, the complaint is suffi- each lot or part of a lot being cient if it aver, in connection with separately assessed in proportion the assessment attached to it as to the frontage at a rate per foot an exhibit, that the different acts sufficient to cover the total ex- preceding and up to the assessment pense of the work," sufiSciently required by the statute to be done f'^ows that the assessment for the by the board have been rightfully cairn v-ork was at a uniform done. Van Sickle v. Belknap, 129 679 693 THE LAW OF SPECIAL ASSESSMENTS. terials furnished the contractor who had charge of making the improvements.*'^ An answer to a claim of tax title that the land was not liable to taxation, without specifying the ground of exemption, is bad on demurrer.®* Evidence — ^Prima facie proof. 693. Evidence of the assessment roll and of one witness that the property was benefited to the full extent of the Ind. 558, 28 N. E. 305; Dugger duly published. Himmelmann v. V. Hieks, 11 Ind. App. 374, 36 N. E. 1085, 37 N. E. 284; Becker V. Baltimore & 0. R. Co., 17 Ind. App. 324, 326, 46 N. E. 685; Helm V. Witz (Ind.), 73 N. E. 846. 8T New Whatcom v. Bellingham, etc. Co., 16 Wash. 138, 47 Pac. 1102. 88 Johnson v. Oshkosh, 21 Wis. 186. Oral return of dema/nd. Where the city marshal hands back a bill of coats which he had attempted to collect, with an oral statement that he had made de- mand for payment, but was unable to collect it, is not a return, and therefore not amendable. People V. Record, 212 111. 62, 72 N. E. 7; Biggin's Est. v. People, 193 111. 601, 61 N. E. 1124. When demand for payment un- necessary. Where a special assessment is levied against ujiknown owners, a demand for payment is unneces- sary. Whiting V. Townsend, 57 Cal. 515. What complaint must allege. In an action to recover on con- tractor's certificate of assessment, the complaint must allege notice of the award of the contract was Townsend, 49 Cal. 150. Joinder of actions. Two causes of action for enforc- ing liens for two different im- provements of one street, affecting the same lots, but made at differ- ent times and under separate con- tracts, cannot be joined in one suit. Dyer v. Barstow, 50 Cal. 652. Joinder of actions. Two assessments for reclamation purposes in a swamp land district made on the same land at differ- ent times may be recovered in the same action. Dyer v. Barstow, 50 Cal. 652, is not a parallel case. Swamp, etc. District v. Peck, 60 Cal. 403. Joinder of actions. If several tracts of swamp land, of the same owner, be separately assessed under one assessment, the assessments on the several tracts, if recoverable, may be recovered in one action. People v. Hagar, 52 Cal. 171. Joinder of plaintiffs. Land owners may join in object- ing to an application for judg- ment of sale for a drainage as- sessment where the objections as to each are identical, and there is nothing to show that confusion or 680 COLLECTIOlf AliD EWPOUCEMBNT. § 694 -assessment is prima facie sufficient.^^ Statutory provisions making the assessment, warrant, etc., prima facie evidence of plaintiff's rights to recover on his contract, is a rule of evidence, and not of pleading. It is therefor competent for defendant to disprove the presumption thus arising, by prov- ing that the contract was prematurely let.®" A special tax bill makes the owner priwM facie liable for the amount of the debt charged, and constitutes a valid claim until re- butted. It is presumptively legal.®^ Upon application for judgment to enforce collection of a special assessment, the want of competent proof of malcing the aasessment will pre- vent a judgment.®^ Burden of proof. 694. In a suit to enforce a special assessment lien, in :which defendant relies on the invalidity of the ordinance embarrassment will be thereby produced. People v. Keener, 194 111. 16j 61 N. E. 1069. Parties defendant. Where assessments made against several lots of plaintiff are made by one course of void proceedings, and tax sale certificates of va- rious lots axe held by different persons, such holders are proper defendants in an action for equi- table relief. Watkins v. Milwau- kee, 52 Wis. 98, 8 N. W. 823. 89 Chicago U. T. Co. v. Chicago, 207 111. 607, 69 N. E. 803. And see Chicago XT. T. Co. v. Chicago, 207 111. 544, 69 N. E. 849. 90 And evidence that wri tten ob- jections were filed ten days before the authorities had made the or- der to advertise for bids made by owners of more than half the frontage affected, was sufficient to displace such prima facie proof of regularity, and throw the burden 681 of proof on plaintiff. Burke v. Turney, 54 Cal. 486. oiNeenan v. Smith, 60 Mo. 292; Tuttle V. Polk, 92 la. 433, 60 N. W. 733. 93 Honore v. Chicago, 62 111. 305. Protest against proposed vxirh — Where in an action to foreclose an assessment for macadamizing a street, an issue was raised by the pleadings as to whether a ma- jority of the property owners had protested against the proposed work, and on the trial the court excluded the written protest from any evidence, but the plaintiff ad- mitted the names of the protest- ants and the number of front feet owner by each, findings waived and judgment recovered in favor of the plaintiff, it was held that it would be presumed that a, ma- jority of the property owners on the line of the work, did not pro- 695 THE LAW OF SPECIAX ASSESSMENTS. creating tlie assessment district, the burden of proof is on the defendant to establish that fact.^^ So, too, the burden of proof as to the invalidity of tax certificates or special as- sessment proceedings is on those attacking them.®* Kandamas. 695. Where the municipal authorities neglect or refuse to do something which it is their duty to do, and some one has a pecuniary interest in the performance by them of such duty, mandamus is usually a proper remedy to compel them to comply with the law, and perform such duty. Thus while county property may not be sold to enforce a special assess- ment against it, yet the money should be paid out of the county treasury, and mandamus would lie to compel such payment, after judgment at law has been entered.®® It lies to compel city officers to deliver to a street contractor the special assessment certificates against abutting property, as required by his contract,®^ or to compel the comptroller, test. Alameda, etc. Co. v. Wil- liams, 70 Cal. 534, 12 Pae. 530. When relevant. In a scire facial for a municipal claim, evidence that the widening of the street was not called for by any reason, except as a public improvement, should be received. Craig v. Philadelphia, 89 Pa. St. 265. In this case, the property as- sessed was rural property and farm land, and the evidence was intended to show the improvement would produce no local advantage, and so bring it within the rule in Hammett's case. When irrelevant. In an action to enforce an as- sessment for benefits caused by improving a ditch, evidence that other land through which the ditch passed was not assessed, although benefited, is irrelevant. Goodrich V. Minonk, 62 111. 121. 83 Kansas City, P. & G. R. Co. V. Waterworks Imp. Dist., 68 Ark. 376, 379, 59 S. W. 248. 9* Tuttle V. Polk, 92 la. 433, 60 N. W. 733 ; Argentine v. Sinamons, 54 Kan. 699, 39 Pac. 181. 9s McLean Co. v. Bloomington, 106 111. 209; Olney v. Harvey, 50 III. 453, 99 Am. Dec. 530; Peo- ple V. Board, 50 111. 213. 98 And his claim against the city is not converted into a money demand by such neglect to deliver. Whalen v. La Crosse, 16 Wis. 271; Alton V. Poster, 207 111. 150, 69 N. E. 783; People v. Pontiac, 185 111. 437, 56 N. E. 1114; Pontiac V. Talbot Paving Co., 48 L. R. A. 326, 36 C. C. A. 88, 94 Fed. 65. 682 COLXECTIOOCT AND EINFOBCEDMEWT. § 695 or other ministerial officer, to sign a contract after an ap- propriation regularly made, when his duties so require;*'^ or to compel the common council to levy a tax in a special im- provement district for the completion of the improvement therein, under a constitutional act so providing.®^ The con- tractor can compel a city by mandamus to levy a new assess- ment to pay for a completed improvement, the first assess- ment having been set aside because of defects in the ordi- nance which were subject to amendment, and the city has re- fused to take any steps in the matter.®^ If the contractor agrees to be paid from special assessments made or to be made, and to take all risks of their invalidity, he has no cause of action against the city for balance due, if the assess- ment be invalid in whole or in part, but may bring manda- mus to make a new assessment.^ Where a municipal con- tract for a local improvement provides for payment only through a special assessment, the remedy of the contractor is by mandamus; but where the municipality disables itself from the contract in such action on its part as makes void, and, therefore, uncollectible, an assessment, or refuses to per- form the contract on its part, the remedy is by action against the city for breach of the contract.^ Where the contract pro- vided that no payment should be made thereon " until the cost of the work shall have been assessed upon and collected from the tax-payers liable," and after its construction only a part of the money was collected and nothing further done to 97 Commonwealth v. George, 148 274, 43 L. R. A. 678, 70 Am. St. Pa. St. 463, 24 Atl. 59, 61. Rep. 472, 53 N. E. 12. 98 Little Rock v. Board of Im- When equity may intervene. provements, 42 Ark. 152. The holder of a warrant drawn 99 People V. Pontiac, 185 111. on a special fund to be raised from 437, 56 N. E. 1114. This decision street improvement assessments was based on the law of 1889, in may by mandamus compel the city force while the proceedings were officers to proceed with the coUec- pending. tion of the assessments; and if 1 Farrell v. Chicago, 198 111. this remedy be inadequate, a court 558, 65 N. E. 103. of equity may make and enforce 2 Weston V. Syracuse, 158 N. Y. them. Ger. Am. Bank v. Spokane, 683 §■§ 696, 697 THE LAW OF SPECIAL ASSESSMENTS. collect it, the contractor was entitled to mandamus requiring tlie city authorities to collect tke tax.* When mandamus will not lie. 696. Where an ordinance for street work provides the payment of all the work shall be by special assessments, and as to part of the street the proceeding is abandoned, pay- ment for the land actually taken wiU not be compelled in any other manner, and mandamus will not lie to compel pay- ment therefor, out of the general fund ; * nor to compel the issuance of a special assessment certificate for street work done under a void contract ; ^ nor to compel payment of interest claimed as delinquent.® Abutting owners will not be permitted to waive their right to injunction or mandamus to compel a hearing on the engineer's report for a street improvement assessment until the same is approved, and then make the denial of a hearing available as a defense in an action to collect the assessment.^ Judgment of sale. 697. A judgment ordering a sale of several lots for tne total tax assessed against them is unauthorized. Judg- ments for special taxes are in rem, and can lawfully operate only against the particular lot or tract of land against which the tax is assessed.* It is essential to the right of a city to recover a judgment for a special sidewalk tax that it affirm- atively prove compliance with the ordinance, and that the application may include general and special tax.® Appli- cation for judgment of sale of land for an unpaid special 17 Wash. 315, 38 L. R. A. 259, 8 Tacoma Paving Co. v. Taeoma, 47 Pac. 1103, 49 Pae. 542. 26 Wash. 84, 66 Pac. 121. 3 People V. Mayor, 144 N. Y. 7 Shank v. Smith, 157 Ind. 401, 63, 38 N. E. 1006. 55 L. R. A. 564, 61 N. E. 932. * People V. Hyde Park, 117 111. s Hoover v. People, 171 III. 182, 462, 6 N. E. 33. 49 N. E. 424. 6 Gray v. Richardson, 124 Cal. » People v. Sherman, 83 111. 165 ; 460, 57 Pae. 385. People v. Cash, 207 111. 405, 69 N. E. 904. 684 COl^ECTION" AND ENFOECEMENT. § 697 assessment, and a sale thereunder, must be made by some general officer having authority to receive State and county taxes. ^^ And where a prima facie case is made upon such application, it is for the owner to point out any valid ob- jections, and not for the authorities to show the tax was legally assessed, the presumption being in favor of the authorities. And there is no difference in this respect also between a special assessment and any other tax authorized by law.^^ The fact that the street was opened before peti- tion for condemnation is filed is no objection. ^^ But where the statute provides that an application for judgment shall not be made until after the expiration of a certain time, an application made before such time, is prematurely brought and will not sustain a judgment.^* In an action brought on a street assessment, in which it is admitted by the plead- ings that several defendants are owners of the lots, it is erroneous to order judgment for the amount of the assess- ment against only one of the defendants.-'* Where it has been judicially determined that land has been assessed be- yond the benefit conferred, the court may, upon proper pleadings, refuse to set aside the assessment in toto, and give judgment for the city, in a suit to collect the assess- ment, for the proper amount.^^ Although the collector's notice of application for judgment may have been deficient in not stating that an order of sale would be asked, yet where personal notice to the owner was given, and he appeared and filed objections, this was sufficient to give the court juris- diction.^® i» Webster v. Chicago, 62 111. iR Walsh v. Sims, 65 0. St. 211, 302; Otis V. Chicago, 62 111. 299. 62 N. E. 120. 11 People V. Givens, 123 111. 352, is Goodrich v. Minonk, 62 111. 15 N. E. 23. 121. 12 Gage V. People, 163 111. 39, What sum is "properly charge- 44 N. E. 819. aJ)le." 13 Bowman v. People, 137 111. Under a statute authorizing the 436, 27 N. E. 598, 600. court to render judgment against 14 Clark V. Porter, 53 Cal. 409. the property owner, notwithstand- 685 §§ 698, 699 THE LAW OF SPECIAL ASSESSMENTS. What may be shown on application for. 698. Everything which shows that a special assessment ought not to be collected, and which cannot be interposed at the time of the application for judgment of confirmation, or an irregularity arising after confirmation, can be urged as a defense to the application for judgment of sale, and proper relief granted. And if the city should attempt to en- force payment of assessments at a time and under circum- stances that would be unjust and inequitable, a court of equity would afford adequate relief. ^^ But upon an ap- plication for judgment of sale for a fourth installment, the validity of the judgment for the first three installments can- not be questioned. The latter application is an independent proceeding.*® Form and validity of judgment. 699, A judgment of sale is fatally defective when it is impossible to ascertain with accuracy from anything in the judgment or the schedules attached, the amounts adjudged against the various properties, or where it does not conform as nearly as may be to the form provided by statute, or ing defects or irregularities in the mediately adjoining those assessed, proceedings, the sum "properly Dempster v. People, 158 111. 36, 41 chargeable," and for which judg- N. E. 1022. ment should be rendered is not it Harris v. Chicago, 162 111. the amount of benefits accruing 288, 44 N. E. 437; Church v. to him from the improvement, but People, 174 111. 366, 51 N. E. 747. that proportion of the entire as- isGage v. People, 213 111. 410, sessment that would have been 72 N. E. 1081. chargeable to him had the assess- Prior assessment in bar, ment been properly made. Cincin- Upon application to enforce a nati V. Bickett, 26 0. St. 49. special assessment for opening a Special assessment camnot he col- street, and a prior opening and lected out of lands not assessed, assessment therefor is urged in A special assessment is a charge bar, it is necessary the record upon the specific lands benefited should show the first assessment and not against the owner there- conformed to the statute, as other- of, and judgment cannot be taken wise it would not be binding on the on the assessment against other city. Forsythe v. Chicago, 62 111. lands of such owner, though im- 304. 686 CaUJECTIOlf AlTD EWFOECEMEINT. § YOO which finds nothing to he due, and fixes no amount, either by reference to the delinquent list, or otherwise. ^^ A judg- ment against lands for taxes is fatally defective unless there is some character or word which indicates the amoimt or sum for which the numerals are enployed in the report of the collector on which the judgment is rendered.'"* And a judgment for a special assessment depends upon and must be governed by the same principles.*^ But such a judg- ment is not invalidated because of an evident mistake in the warrant for the collection of a special assessment, where the land owner was not misled and the warrant was correctly described in the notice.** Tlie sale. 700. A legal .assessment is the foundation of the author- ity to sell. An assessment which is made without jurisdic- tion, or is otherwise illegal, will not be aided by ratification i»Gage V. People, 205 111. 547, 69 N. E. 80; McChesney v. People, 205 111. 547, 69 N. E. 80; Gage V. People, 207 111. 61, 69 N. E. 635; Gage v. People, 207 111. 377, 69 N. E. 840; Gage v. People, 213 111. 410, 72 N. E. 1084. 20 Lawrence v. Fast, 20 111. 338, 71 Am. Dee. 274; Lane v. Bom- melmann, 21 111. 143; Dukes v. Rowley, 24 111. 222; Eppinger v. Kirby, 23 111. 521, 76 Am. Dec. 709. 21 Pittsburgh, Ft. W. & O. R. Co. V. Chicago, 53 111. 80. 22 Young V. People, 155 111. 247, 40 N. E. 604. Pregumption in fa/vor of jvAgment. A decree for plaintiff in an ac- tion to foreclose a street assess- ment lien recited that the action was dismissed as to some of the defendants, on appeal by the de- fondant. Held, that as all pre- sumptions are in favor of the cor- rectness of proceedings in courts of general jurisdiction, and as the consent of the defendants would have justified the order, it will be presumed such consent was given, in the absence of anything in the record to show to the con- trary. Parker v. Altachul, 60 Cal. 381. Judgment against county. A general judgment cannot be rendered against a county to en- force a tax for a street improve- ment made in a court house square and assessed against the court house property. Clinton v. Henry Co., 115 Mo. 557, 37 Am. St. Rep. 415, 22 S. W. 494. Res judicata. A decree declaring void an as- sessment for a public improvement is not a bar to a subsequent action by the city to collect the cost of 687 700 THE LAW OF SPECIAL ASSESSMEiNTS. by the council or provisions for redemption,^* althoughj, when the charter permits, lands legally sold under an exe- cution for " benefits," in grading cases, may be redeemed as well as under special tax bills for street improvements.** The sale of land for an unpaid assessment is the execution of a naked power, and every requirement of the statute im- posing the liability, and prescribing the procedure to enforce it, which is for the security of the owner, or for his benefit, must be strictly conformed to.^^ Thus where the charter requires a written report by the commissioners of assess- ment, an omission to make the same, invalidates a sale.** When a statute gives a new power, and at the same time provides the means of executing it, those who claim the the work from the property bene- fited. Thomas v. Portland, 40 Or. 50, 66 Pac. 439. Want of notice. Where the record of a special assessment proceeding shows on its face that a proper notice was sent, the judgment cannot be impeached by the owner by a showing that, in point of fact, no notice was sent him by mail. Clark v. Kerns, 146 111. 348, 35 N. E. 60. 23 State V. Jersey City, 36 N. J. L. 188; Stebbins v. Kay, 123 N. Y. 31, 25 N. E. 207. 2* Bryant v. Russell, 127 Mo. 422, 30 S. W. 107. 26 State V. Jersey City, 36 N. J. L. 188. 28 State V. Jersey City, 44 N. J. L. 136. City purchasing is a trustee. Where a city has performed the duties prescribed by its charter for collecting unpaid special as- sessments, and bids in the prop- erty at the tax sale in the absence of any other bidder, it does not become liable for the amount of the certificate assessed against such property, but holds the tax certificate as a trustee for the ben- efit of the person to whom such assessment was due, and would be- liable only in case it should sell, the certificate or collect the amount due on it from the owner of the lot. Finney v. Oshkosh, 18- Wis. 210. Bedemption from second sale. And where a lot was bid off to the city for unpaid taxes, including a special assessment, and the- year ' following was again sold to- city for ordinary taxes, and the latter certificate sold by it to a third party, the owner of the- certificate issued for the special assessment must redeem from the- second sale, or lose his lien against, the party claiming thereunder. It is not the duty of the city to pre- serve the lien of the certificate^ Metcher v. Oshkosh, 18 Wis. 229^ 688 COLLECTION' AND ENFOECEMBNT. § 700 power can execute it in no other way.^^ The power given by a city charter to levy and collect a special tax does not carry with it the power to collect such tax by sale of the property upon which it is assessed ; ^* nor will such power be inferred from an express charter provision that the col- lection of taxes may be enforced in such manner as may be provided by city ordinance; but in such case the city would have the right to enforce collection by proceedings in due course of law.^® And power given to a municipal corpora- tion to sell lands for taxes will not authorize a sale for a mere assessment of benefit.^'* The sale may be made only by the officer pointed out in the statute.^^ Where work has been done under an ordinance providing for the collection of the bills by suit at law, another ordinance attempting to enforce collection by levy and sale, is retroactive and void.** Taxes levied on the property of an entire ward for a local improvement are within the purview of a statute directing the sale of lands for nonpayment of taxes.** 27 Anderson, etc. Corporation v. si Hills v. Chicago, 60 111. 86 ; Gould, 6 Mass. 44, 4 Am. Dec. 80;, Hemingway v. Chicago, 60 HI. Mix V. Eoss, 57 lU. 121. 324; Chicago v. Habar, 62 111. Old and new remedies. 283; Brown v. Chicago, 62 111. Existing remedies, either statu- 289. tory or common law, will not bo 32 Fowler v. St. Joseph, 37 Mo. regarded as taken away by subse- 228. quent statutes granting new reme- 33 Howes v. Eacine, 21 Wis. 510. dies, unless such purpose is ex- Non-adjaoent lot — liability. pressed or clea/rly implied. Good- Where by statute assessments rich V. Milwaukee, 24 Wis. 422. for street improvements can be 28McInerny v. Eeed, 23 la. 410; made only against lots bordering Merriam v. Moody's Ex'rs, 25 la, upon the street, the liability of 163 ; Leavenworth v. Laing, 6 Kan. other lots back from the bordering 274. lot within 150 feet of the street 29 Merriam v. Moody's Ex'rs, 25 improvement, arises only in the la. 163; Paine v. Spratley, 5 Kan. event that the bordering lots 525 ; Leavenworth v. Laing, 6 Kan. against which the whole assess- 274. ment must be levied, fail to sell 30 Sharp v. Johnson, 4 Hill, 92, for a sum sufficient to pay the 40 Am. Dec. 259 ; Sharp v. Speir, 4 assessment, and then only for the Hill, 76. deficit, in the order fixed by stat- 44 689 §§ 701, 702 THE LAW OF SPECIAl ASSESSMENTS. Collection from railroads. 701. Unless specially provided by statute, it is generally held by the courts that an execution sale of the road-bed, right of way, or other portion of a railway which would be disabled thereby from performing the functions and duties due to the public, will not be permitted.®* But in Illinois, the collection of special taxes levied upon a railroad right of way may be enforced by the sale of that portion specially taxed,*' Under the Iowa statute it is provided that a special assessment against railway property for aistreet improvement shall be a debt due from the railway. A sewer assessment may be levied on parcels of land aside from that made use of in carrying on business peculiar to the railroad.*® When sale void — Caveat emptor. 702. Where an owner of property, a part of which has property against which it is as- sessed may be sold for such tax and a tax deed may be executed upon such sale, which deed, if sufficient in form will be 'prima fame valid. Sanger v. Rice, 43 Kan. 580, 23 Pac. 633. 3* Gue V. Tide Water Canal Co., 24 How. 263; Yellow River Imp. Co. V. Wood Co., 81 Wis. 562, 17 L. R. A. 92, 51 N. W. 1004; State V. Anderson, 90 Wis. 550; Lake Shore & M. S. R. Co. v. Grand Rapids, 102 Mich. 374, 29 L. R. A. 195, 60 N. W. 767; De- troit, G. H. & M. R. Co. V. Grand Rapids, 106 Mich. 13, 28 L. R. A. 793, 58 Am. St. Rep. 466, 63 N. W. 1007. 85 C. & N. W. R. Co. V. Elm- hurst, 165 111. 148, 46 N. E. 437. s §§ 770, 771 THE LAW OF SPECIAL A penalty clause in contract not for benefit of, 457. liability of, on contract, 46 In. cannot be assessed for paving viaduct approach, 537. assessment must be made in name of, if statute requires, 555. assessment against, when names unknown, 555. may contest assessment, 563. rights of, as to change of established grade, 583. obligation of to pay for paving purely statutory, 588. liability of, when material variance in cost, 594. on opposite sides of street should be assessed equally, 594., liability of, for paving opposite public grounds, 594n. want of consent of, 622n. right of access of, as inviolate as right to property, 641. title of, to soil in street — removal of, 664n. 845 INDEX. (References are to section numbers.) ABUTTING PROPERTY— definition of, 303. in general, 303, 304, 322. must be charged with cost of street work, 404. assessability of non-abutting property, 434n. council agent of law in making contract chargeable on, 451. cannot be taxed for temporary improvements, 590. assessment of non-abutting property, 622n. damages to, from change of grade — how estimated, 665nu ACTUAL NOTICE— definition of, 361. when necessary, 361, 362. ACQUIESCENCE— waiver and — same as estoppel — may prevent contest of s. a., 737. ADEQUATE REMEDY AT LAW— where party aggrieved has, equity will not interfere, 799. except under some appropriate head of equity jurisdictioa— when, 797. ADJACENT PROPERTY- definition of term, 305. ADJOINING PROPERTY— definition of term, 306. payment for grading, 786n. ADJOURNMENTS— from time to time after notice, 366. ADMINISTRATOR— authority of, to bind estate by signature to petition, 332n. ADOPTION— of ordinance, 382, 382n. ADVERTISING AND PRINTING— when expense of, included in cost of work, 526. AFFIDAVIT— of mailing of notice, 365. defect in, when not available as a defense, 366. averment contradicting, of posting, 815n. AGRICULTURAL LANDS— assessable imder certain conditions, 294, 476, 502n. temporary occupation as, creates no exemption from s. a., 316n. where no benefits result, s. a. erroneous, 497. 846 IITDEX. (References are to section numbers.) ALABAMA— when " tax " does not include " special assessment," 22. clause in constitution of, as to equality and uniformity, 68. -AMBIGUOUS FACTS— " when power to levy s. a. will not presume error, 621n. AMENDMENT— or repeal of ordinance can only be by ordinance, 383. effect of amending law under which passed, 434n. of law pending improvement proceedings, 438n. AMOUNT OF ASSESSMENT— modification of, 574. must appear in dollars and cents to authorize judgment, 574. lAPPEAlr- city charter giving right of, but not providing for notice, uncon- stitutional, 143. where, given, property rights not affected without due process, 144. power of Legislature as to, almost unlimited, 146. proper remedy where extra work included in s. a., 455n. unnecessary when contract let without notice, 461n. return of commissioners on, not conclusive, 520. damages on, appeal, 657n. Legislature cannot make, only remedy, when certiorari allowed by constitution, 745. does not raise question of validity of assessment, but of amount, 747n. Tegulation by statute, 755. when allowable, 756. ■what matters considered on, 757. when, exclusive remedy, 758. not where the proceedings are invalid — may recover in trespass, 758n. nor when there is an unauthorized change of grade, 759. ■when appeal not exclusive remedy, 760, 761n. unnecessary from decision of limited trihimal beyond its jurisdic- tion, 760. fraudulent representations by city officers, 760n. non-compliance with contract, 760n. 700n. MAILING OF NOTICE— See Notice. affidavit of, 365. 896 INDEX. (RefertflceS are to section numbers.) MAITOAMUS— a proper remedy to compel ministerial offloeirs to perform thdr duty, 695. when, mandamus will not lie, 696. if remedy by, insufficient, equity may intervene, 695n. will not issue at relation of owner guilty of laches, 736. in general, 763-764. holder of warrants may proceed by, 763n. contractor not to entitled to after receiving final order, 763ii. when property owner may have, to compel condemnation, 763n. MANDATORY STATUTES— or directory, 341, 383, 424. whether requirement of resolution is, 342. requirements for publication of ordinance usually, 434; charters requiring a distinct act to be done are, 436. statutory provisions as to assessment roll are, 548. statute requiring payment or tender of damages before changib of grade, 584; charter and ordinance requirements as to notice are, 585. charter requirements that damages be ascertained before grading, are, 641. MARYLAND-- when "tax" does not include "special assessment," 31. definition of s. a., 39n. preservation of public health is a benefit under statute 1797, 43. equality and uniformity clause in constitution of, 90. assessment in excess of value of property, 490. MASSACHUSETTS— equality and uniformity clause in constitution of, 909. MASS MEETING— action of citizens at a, confers no authority, 445. MATERIA!;— See CoNTEACT; Oedinance; City Engineer. unauthorized change of, 62 In. furnishing material not bid upon, 621n. evidence that less costly, would be better, inadmissible, 627. MIAXIMS— sio utere tuo ut alienum non Icedas, 17 In. stare decisis, 148. de minimis non curat leas, 57, 477, 808. respondeat superior, 515n. idem sonans, 577. 57 897 INDEX. (References are to section numbers.) MAXIMS (Continued). damnum absque injuria, 663n, 664n. caveat emptor, 702, 743. he who seeks equity must do equity, 796. MAY— when, means "must,'' in serving notice, 433. MAYOR— authority of, to contract, 461m. MBEGER— in general, 716. MERITS— of system of special assessment, 65, 66. MICHIGAN— equality and uniformity clause in constitution of, 91. validity of statutes fixing district and limit of assessment, 158. constitutional provision as to title of tax laws, MINISTERIAIi ACT— assessment sometimes held to be a, 553. MINNESOTA— definition of s. a. in, 39n. drainage laws of, valid exercise of police power, 43. equality and uniformity clause in constitution of, 92, 93. constitutional provision as to counties being municipal corpora- tions, 282. MISSISSIPPI— equality and uniformity clause in constitution of, 94. MISSOUEI— when " tax " does not include " special assessment," 32. s. a. under police power, unconstitutional in, 42. equality and uniformity clause in constitution of, 95. constitutional provisions as to property damaged for public use, 165. MISTAKE— alleged, in lowest bid, does not authorize withdrawal, and contract awarded to next lowest bidder without re-advertising, 450. finding of commissioners on benefits conclusive except for fraud or, 515. payment under, 721n. taxes paid under, of law may be recovered back, 779n. contra, see 783n, 786n. 898 INDEX. (References are to section numbers.) MONOPOLY— See Patented Abticlb. distinction between, and right to use patented article, 459. MUNICIPAL LIABILITY— See Personal Liabiutt. none upon contract when time improperly extended, 457. when street cut down in a manner other than statutory, 559. none, when acting under legislative authority, with due care, 641, 642. in grading streets same as that of a private person, 642. when no, for damages, 643. for change of grade, 644'-649. for negligence, 641, 664n. for payment of special assessment certificates, 671. great division in opinions of courts upon, 672. is absolute after money is collected and paid into treasury, 673. arising from the creation of a special fund, 674. to pay from general fund, after accepting amount less than the s. a., 676. to contractor on ultra vires contract, 676. reasons for non-liability to pay s. a. certificates, 677, 678. promise of city to pay after deficiency, 678n. on failure of city to collect s. a., 678n. agreement — exempt property, 678n. where contractor agrees to look solely to s. a., 678n. assumpsit — failure to collect assessment, 678n. construction of statute as to, 678n. to contractor who relied upon fraudulent city records, 739. MUNICIPAL OFFICERS— in letting contracts, are public oflScers, 440. cannot act as commissioners if paid'by percentage of s. a., 512. commissioners to appraise damages are public oflScers, 514n. presumption that they do their duty unless contrary appears 523, 804. MUNICIPAL REVENUES— classification of, 2. importance of s. a. as a source of, 4, 53. all taxes and assessments included vmder general term of, 20. MULTIPLICITY OF SUITS^ when injunction will lie to restrain, 788. mutuality- Is a prime factor in estoppel, 734. 899 IITDEX. (References are to section numbers.) N. NAME— middle initial of, immaterial, 677. variance in spelling of, immaterial if idem sonans, 577. similarity of — presumption of identity, 577n. abbreviation of — ^sufficiency, 577n. NEBRASKA— definition of s. a. in, 39n. equality and uniformity clause in constitution of, 96. assessment in excess of value of property, 491. NECESSITY— for adoption of ordinance, 379-381. power for determining, of improvement, vested in council, 440, 440n. NEVADA— equality and uniformity clause in constitution of, 102. NEW JERSEY— definition of s. a. in, 39n. equality and uniformity clause in constitution of, 99. assessment in excess of value of property, 492. NEW YORK— distinction between " tax " and " special assessment " in, 13. when " tax " does not include " special assessment," 33. definition of s. a. in, 39n. no limitation in, constitution on legislative power over taxation, 100. when constitutional provisions as to taJsing not contravened, 163n. NEWSPAPER— designation of some, as an official paper, 368. NORTH CAROLINA— definition of s. a. in, 39n. equality and uniformity clause in constitution of, 101. s. a. for fencing townships authorized in, 101. NORTH DAKOTA— equality and uniformity clause in constitution of, 102. NORWOOD V. BAKER— See note to, on p. 203. NOTARY PUBLIC— who is also superintendent of s. a. district, may administeir oatb, 514. 900 INDEX. (References are to section numbers.) NOnOE— and opportunity for hearing, essential to " due prooess,*' 136. requisite of due process, 141, 435n, sufficiency of, courts in conflict, 141. legislature may prescribe mode of giving, 141. of poll or specific tax, not requisite, 142. unnecessary where amount due is result of mathematical calcu- lation, 142. and hearing, not a matter of favor, but of right, 142. such as adopted to nature of proposed assessment, 143. city charter not providing for, unconstitutional, 143. when requirement as to, directory only, 144. somewhere in proceedings, necessary, 145. what, sufficient to constitute due process, 146. especially necessary where tax ihay be collected by distress, 146n. not alone sufficient — proper tribunal necessaiy, 147. what, sufficient, 148. when unnecessary, 149, 164. what, insufficient, 150. necessary to valid apportionment, 218. requisites of, 347-352. suffideney of, 353-359. what record must show as to, 360. how given, 361. publication of, etc., 368-373. waiver of, 374. computation of time as to, 377. defect in, of filing commissioneir's report, not waived by appear- ance, 376. " may " means " mjist " in requirement of personal service of, 433. requirements of statute as to, mandatory, 434n. certificate of publication of, essential to jurisdiction, 437. contract let without — appeal unnecessary, 46 In. of motion to dismiss petition for improvement unnecessary, 462n. failure to give, of confirmation, how cured, 516. proof of, of meeting of commissioners, 523n. charter and ordinance requirements as to, mandatory, 615. ordinance for sidewalk must provide for notice, 616. insufficient proof of, 628. failure to give, to abate nuisance, 794n. perpetual injunction for failure to give, 815n. NTnSANOE— in general, 581. failure to give notice to abate, 794n. 901 INDEX. (References are to section numbers.) NUISANCE (Continued). restraining sale of property for s. a. to abate, 798. complaint failing to state cause for equitable relief as to abating, 798n. O. OATH— of commissioners of assessment, 514. notary public may administer, although superintendent B. a. dis- trict, 514. OBJECTIONS— to the system of special assessments, 57, 59-63. that property is taken without " due process," 64. to insufficiency of ordinance, when broad enough, 422. when available, 438n. not available on application for sale, unless damages shown, 45201, to assessments — when made, 484. to report of commissioners, when made, 519. when, to itemized estimate of cost can be made, 527n. that city has not acquired title will not be heard, 546. when, to insufficiency of assessor's certificate without avail, 560. may be urged, 564. that there are no benefits includes, that benefits are excessive, 566. must be made so aa to show on what point decision asked, or deemed waived, 567. when, to assessment for drainage districts should be made, 614n'. technical, will not set aside s. a., 62 In. where no, filed, confirmation of s. a. is matter of course, 627. to confirmation should be filed in writing, 627. that action of commissioners does not comply with statute, suffi- cient, 627. when', not of record, but appearing aliwnde, should be overruled, 630. that tax improperly divided into installments — made on applica- tion to confirm, 718. omitting to make, as waiver of right to appeal, 761. OFFICERS— See De Facto and De Jure; Municipal Officers. de facto, 579. whether assessors appointed by council are de jure, not consid- ered, 579. collection must be made by the, specially designated, 689. OFFICIAL PAPER— See Newspapee. in general, 368, 369. must be published in English, 370n'. 902 (References are to section numbers.) OFFICIAL PAPER (Continued), publication of notice in, 370. pioof of publication of notice, 371-373. OFFSET— legality of, of benefits and damages, 156, 483. may be done unless for constitutional inhibition, 483, 651, 654. only the diSerence payable, 484, 499. not allowable in Illinois for land taken, 536. OHIO— distinction between " tax " and " special assessment " in, 14. equality and uniformity clause in constitution of, 103. constitutional provision as to full compensation, 159. gives towns power over s. a. for sidewalks, 193. assessment in excess of value of property in, 493. OMISSION— of lot from assessment, 461n, 542, 542n, 814n. to assess narrow strip between sewer and next proprietor, 499n. of property from assessment, 542, 542n. of ovsmer's name from assessment roll does not invalidate s. a., when, 548. will invalidate s. a. if statutes require, 550. of dollar mark, 578. to properly advertise for bids, 622n. to make timely protest — equity will not act, 799ii. to file specification, 813n. of conditions precedent, 813n. OMNIPOTENCE, LEGISLATIVE— See Leqislatuke, Power of. valid demand cannot be created by legislative enactment, 169n. in general, 170-182. when complete over all objects not withdrawn by constitution, 190. in fixing taxing district is unquestioned, 228, 468. injustice of theory of, 238, 240. undoubted as to frontage rule, 501n. OPENING— See Streets. invalid, of street, 622n. measure of damages for land taken for street, 661. ORDINANCE— taxing abutter one-third cost, 88n. validity of, with regard to state constitution and laws, wholly a state question, 196. 903 (References are to section numbers.) ORDINANCE (Continued). jnay exempt property from s. a. if not benefited, 314. need not be recited as duly passed in certificate attached to peti- tion, 336. s. a. proceedings usually foimded on, 342. notice may be a condition precedent to passage of valid, 350. .'Sufficiency of, as notice, 3S8. necessity for, 379-381. adoption — presumption — records, 3!82-383. requisites to validity, 384-385. construction of, 386. effect of repeal of, 387. must be reasonable, 388. enactment of , prima facie evidence that it is reasonable, 388. reference in, to plans on file, 389. omission to state locality of improvement, 390. must be substantially complied with — variance, 391-392. embracing more than one improvement, 393. validity — in general, 394-402. sufficiency of description, 403. grade ordinances, 404. paving ordinances, 405-407. curb ordinances, 408. sidewalk ordinances, 409. waterworks ordinances, 410. sewer ordinances, 411^14. invalidity — in general, 415-422. invalid grade ordinances, 423. paving ordinances, 424. curb ordinances, 425. sidewalk ordinances, 427. sewer ordinances, 428-429. delegation of power, 430-431. evidence, and burden of proof, 432. when " may " means " must," 433. publication of, 434. insufficient, vitiates s. a. 434. construction of requirements, note to 434. two-weeks time shall elapse, 434. payment in installments, 434n. assessing for cost of work, 434n. material — notice — jurisdiction, 434nc pleading, " duly passed," 434n. effect of amending law under which, passed, 434n. publication on Sunday — proof, 434n. inaccuracies in description, 434n. collateral attack on, 434n. 904 ITTDEX. (References are to section numbers,) "OBDINANCE (Continued). when judicial in character, notice, 434n. assessability of non-abutting property, 434n. new, to remedy defects, 434n. conflict between statute and, 450n. effect of repealing act on, 461n. paving of different streets may be authorized by one, 544. will not be declared void merely because oppressive, 606. for sidewalk, must provide for notice, 616. invalidity of, no defense to confirmation, 624. when, void, judgment confirmation is void, 625. unreasonable, defense to judgment confirmation, 629n. passage of ordinance for change of grade causes no damage> 650. initial law governs at time of passage of, 822n. 'OREGON— when " tax " does not include " special assessment," 33. definition of s. a., 39n. equality and uniformity clause in constitution of, 104. OtJTLET— of sewer may be outside city limits, 268. sewer ordinance need not provide for, 414. location of sewer, for determination of local authorities, 609. assessment for cost of sewer intended as an, 639. -OVERRULED CASES— Mayor v. Dorgan, 45 Ala. 310. TBy Mayor v. Klein, 89 Mayor v. Royal St. R. Co. 45 Ala. 32. J Ala. 461 23n Palmer v. Way, 6 Colo. 106, by Denver v. Knowles, 17 Colo. 204, 25n. State V. Robert P. Lewis Co., 72 Minn. 87, by S. C. 82 Minn. — , 170. MJauldin v. Greenville, 53 S. C. 285, overruling S. C. 42 S. C, 293. By Kansas City v. Ward, State V. Leffingwell, 54 Mo. 458. -i 134 Mo. 172 and Kan- County Court V. Griswold, 58 Mo. 175. J" sas City v. Bacon, 147 Mo. 259. ■OWNERSHIP — Sometimes necessary to s. a., 298. in s. a. district usually disqualifies owner as commissioner, 513, 513n. assessment of lots together having same, or different,. 541. of entire block in, but of record in two names — how assessed, 549. how city, of land disproved, 57 In. 905 INDEX. (References are to section numbers.) P. PARKS— may be laid out in various towns or counties, 215, 216ii. public, 256, 257. subject to s. a., 282. power to levy s. a. and special taxes for, 307n. powers of commissioners of, as to exemptions, 315. property exempt from s. a., 315. when interested persons may make s. a. for, 509. assessment for, situated in two towns, how made, 509. powers of commissioners of, 523n. confirming assessment for, 630n. PAKK COMMISSIONERS— See Pabks. when may have power of s. a. conferred on them, 207» how regularity of proceedings of, how questioned, 438n. assessment of city streets by, 62 In. PARTIES— in equitable suits — who may be, 805. when city not a necessary, 815n. PATENTED ARTICLE— See MoNOPOLT. city cannot contract for, at expense of lot owners, 450d. drain — requirements additional to contract, 45 In. use of, eliminates elements of competition, 459. distinction between right to use, and monoply, 459. common council not prohibited from using for paving, 459n. city may secure right to use before letting contract, 459n. when unauthorized use will not avoid s. a., 459n. PAVEMENT— See Paving; Streets. objection that present, is sufiBcient, 405. removal of unworn, is an arbitrary act, 443. validity of contracts having guaranty for term of years, 453. difi'erent kinds on one street, 545n. what constitutes a, 587-590. what is not a, 591. assessment for, may include curbs, gutters, cross-walks, etc., 582. reconstruction and repairs of, 596. when property owner not chargeable with expense of relaying, 618. PAVING— See Street Improvements; Rep a vino ; Pavement. is an exercise of taxing power, not eminent domain, 249. 900 INDEX. (References are to section numbers.) PAVING (Continued). sufficiency of, ordinances, 405. invalid ordinances for, 424, 424n'. one street by gravel from another, 442. contract for — distance not specified, 461n, what constitutes a pavement, 587-590. what is not a pavement, 591. at street intersections, 592. ■resolutions and estimates, 593. liability of abutting owners, 594. apportionment of tax, 595. reconstruction and repairs, 596. street railways — liability for, 597. ~ for miscellaneous decisions on questions of, see pp. 574, 575. PAYMENT— of annual tax should be by life-tenant, 20n, 710n. of s. a. by life-tenant and remainderman ratably, 20n. made as ordinance directs, 82n, 194. legislative power over, almost without limit, 194. in installments, 434n. different methods of, in one street, 461n'. change of, by statute does not invalidate contract, 461n. method of, governed by law in force when contract was made, 656n. as between life-tenant and remainderman, 589a. for sewer crossing railway track, 59 8n. pro tamto for sewer running through private grounds in part, 608n. contributions by public, 62 In. personal liability for payment of s. a. certificates, 668'-670. municipal liability for payment of s. a. certificates, 671-673. from general fund of liability arising from special fund, 675. of s. a . in depreciated wurrants, 68 In. liability of petitioner for payment, 682. penalties for non-payment of s. a., 687, 72 In. in installments, 718. from general fund, 719. when, neither waiver nor estoppel, 720. usually a waiver of irregularities in proceedings, 720. what constitutes a voluntary, 720. by mistake — revivor, 721n. in cash or on time — difference in price, 721n. in part by general taxation, 721n. by municipal warrants, 72 In. who liable for, 721n. for work already done, 72 In. when liability for, accrues, 72 In. excess, by one no benefit to another, 72 In. 907 IHDEX. (References are to section numbers.) PAYMENT (Continued). by mistake discharges both land and owner of any liability, 722. in depreciated municipal warrants, 739. of percentage of s. a. as a discharge, 750n. made voluntarily, without protest, and with knowledge, not recov- erable, 769. a void s. a. is not validated because it has been voluntarily paid, 769. a s. a. made under unconstitutional statute, paid under protest, re- coverable, 769. proper remedy to recover for tax illegally assessed by action for money had and received, 770. of one installment does not. conclude owner from challenging the others, 769n. when, recoverable when s. a. without jurisdiction, 772. recovery back of, of illegal assessment — ignorance or coercion nec- essary, 773. abandoning work — failure of consideration — recoveiy, 774. not essential to recovery of, under unconstitutional s. a., that it should first be declared void, 775. voluntary and compulsory, 776. under protest, 776n. fraudulent statement by officials inducing, 776n. to collector with warrant, 776n. who may recover, 777. only whose who institute proceedings may recover, 777. mistakes in, 778. statute of limitations on, runs from vacation of s. a., 779. recovery of illegal tax — plea of city, 778n. voluntarily made, with full knowledge, cannot be recovered, 780. statutory authority — when necessary for city to refund, 785. recovery back because of failure of consideration, 786. voluntary, though paid under protest, not recoverable, although partly void, 786. to prevent lien is not, under duress, 786n. by lessee, 786. for grading adjoining property, 786n. determination of illegal excess, 786n. or tender as prerequisite to equitable intervention, 800. from special fund — demand for — bonds, 800n. equity will require, of portion of tax due, 801. trend of modem decision — when, deemed waived, 801n. neglect of duty by treasurer — acts of officer de facto — failure to act promptly, 801n. PENNSYLVANIA— distinction between " tax " and " special assessment " in, 15. when " tax " does not include " special assessment," 34. 908 HiTDEX. (References are to section numt>ers.) PENNSYLVANIA (Continued). e^quality and imiformlty clause in constitution, 105, 106. of taxation not enjoined by bill of rights, 106n'. assessment in excess of value of property, 494. PENALTIES^ for non-payment of s. a., 687, 721n. only such as provided by statute may be imposed, 687. interest after due, 687n'. relief from, 815n. PENALTY CLAUSE— in contract, not for benefit of abutting owners, 457. PERFORMANCE— See CONTEACT; WOBK. of contract, 454. corporate authorities sole judges of, 454. in case of defective, contract is basis for fixing amount of recov- ery, 455. acceptance as a completed, must be in good faith, 455. right of owners to maintain suit for injunction for defective, 455, 455n. substantial, is sufficient, 455n'. PERSONAL LIABILITY— special assessment not a, of tax-payer, 12a, 225n, 501, 668. proceedings for collection being in rem, no, against owner, 669. but only a lien on the specific property assessed, 669. where property is lessened in value by improvement, 670. courts are divided on question of — see decisions in 669n, 670n, 671n, 827n. where by statute s. a. has effect of tax, there is a, 686n. PERSONAL PROPERTY— special assessment of, 55, 275, 295. PETITION— in general, 327-329. sufficiency of signature, and authority for, 330-333. requisites of, 334. sufficiency of, 335-337, 337ni. effect of siting, 338. dismissal of, 339. when notice unnecessary, 352. when, necessary to start improvement, all proceedings void with- out, 416, 416n. requiring, of majority of owners in' certain district, 436n. 909 INDEX. (References are to section numbers.) PETITION (Continued). when patented pavement may be laid only upon, contract without, is void, 459. notice of motion for dismissal of, unnecessary, 462n. liability of one who signs, for payment of s. a., 682. no estoppel to deny invalidity of proceedings by signing, 725. signing, no waiver of legal s. a., 737a. answer to, for certiorari, 752a. PHOTOGRAPH— when admissible in evidence, 522. PIERS— See Levees, Dykes and Beeakwateibs. PLANS AND SPECIFICATIONS— See Council. reference to, on file, 389, 416. when insufficient, 423. slight variations from, not increasing cost, will not vitiate s. tu, 455. failure to estimate rock excavation, when same necessary, 456. contract referring to, as annexed, and none annexed, invalid, 456i absence of, when required by charter, avoids contract, 456. when, become a part of the contract, 456n. when required by statute, omission avoids assessment, 524. making and filing a necessary preliminary, 534. unless charter requirement, may be directory merely, 534. sufSciency of, 534n. for constructing sewers, 607. constructing sewer not on original plan, 607n. that original, were changed, may be alleged on' application for sale, 607n. omission to file, 813n. PLEADING— waiver must be pleaded if relied on, 376. ordinance " duly passed," 434n. what complaint on change of grade must show, 597n. in proceedings to collect, 691. requisites of complaint, 69 In. counterclaim • — demurrer, 692. answer to claim of tax title that land is exempt, bad on de- murrer, 692. general rules of, as to fraud, applicable in s. a. cases, 740. allegations sufficient to avoid s. a., 740n. and practice on petition for certiorari, 753. what does not constitute an allegation of fraud, 79 7n. 910 INDEX. (References are to section numbers.) PLEADING (Continued). all^ations insufficient to afford equitable relief — nuisance, 798ll. in suits in equity — in general, 80ft-807. failure to show injury, 807n. POLICE POWER— as authority to levy s. a. 40. sidewalk, sewer, levee and drainage s. a. made under, 40, 252. constitutional provisions as to taking not a limitation on, 41. incapable of exact definition, 42. drainage laws may be referable to, 43, 263. street sweeping and sprinkling and removing snow referable to, 44. insufficient for modern municipal necessities, 44. removal of snow from sidewalk, 273. grading and paving cannot be ordered under, 501. right to assess cost of making sewer connection exercise of, 6IO11. POSTING OF NOTICE— must be for full time prescribed, 363. POWER OF COUNCIL. See Council. as to s. a. exists only in exclusive legislative grant, 439. possessed in general of much discretionary power, 439. POWER, DELEGATION OF— in general, 183, 184, 416, 430, 431. legislature may exercise, in fixing taxing districts, 213, 216. amount of tax and mode of raising, 216. not a, to fix cost of improvement, 430. POWER OF SPECIAL ASSESSMENT— a continuing one, 185, 186. express statutory authority necessary, 186, 402n. strictly construed, 185-189, 380. resides in legislature, 323. ordinance alone cannot confer, 402n. POWER, STATUTORY— express, necessary to authorize s. a., 186, in general, 190. express, must be given for levees, etc., 258. PRESUMPTION— every, in favor of right of taxation, I5n. as to benefits, how far carried, 220. legal, is that benefits equal amount of s. a., 220. no, of giving of notice, 370. 911 INDEX. (References are to section numbers.) PEEStlMPTION ( Continued ) . of waiVer of notice, 374. notice to owners in drainage district, 376ri. adoption of ordinance, 382. as to statute under which ordinance for collecting tax enacted, 398. ordinance fixing locality without resort to, 406. whea no, as to illegal provisions in contract, 452. as to increase of cost, when rebutted, 452. that public officers discharge their duties faithfully and lawfully, 464n. act within the scope of their powers, 464n. that things of the substance cannot be held immaterial, 464n, omission of record to show necessary acts not supplied by, 464n. that in review of assessment roll under charter, council did its duty, 464n. a conclusive, that s. a. is limited by benefits — when, 464. that preliminary report was properly made, 464n. s. a. was made with reference to special benefits alone, 468. as to acts of commissioners, 523. that city engineer prepared plans, etc., according to ordinance, 534s as to meaning of heading " benefits " in assessment roll, 548. of identity of persons from similarity of names, 577n. that there has been no abuse of discretion in assessment, 616. that no sidewalks laid except in front of lots shown in s. a., 617. of jurisdiction of court to render judgmait in s. a. proceedirigS, 633. when, that majority of owners did not protest, 693n. in favor of judgment of sale, 699n. no, that petitioner wants work done other than according to law in absence of showing that benefit exists, 778n. that officers act illegally, or that conditions precedent are not ptft^ formed, 804. PRINCIPLE— wrong, of law, 622n'. PRIOEITIES— See Liens. PRIVATE PROPERTY— notice requisite to taking of, for public use, 141. where sewer cannot be reached except through, s. a. for is illegal, 603. PRIVATE SEWERS— See Deain§ and Sewebs. difference between, and public sewers, a physical fact, 608. general statement of principles regarding, 608. 912 INDEX. (References are to section numbers.) PROCEDURE— jury of six to assess benefit not a jury trial — majority controls, 447n. but not when power is delegated for a private purpose, 447n. instructions to jury, 571n, 665n. when facts and evidence do not support judgment, 586, 686n. effect of decision of appellate court, 622n. issue on hearing to objections to confinmation, 629n. verdict where benefits less than damages, 642n. less than evidence — not set aside on appeal, 642n. nominal damages — nonsuit — appeal, 643n. when verdict will not be disturbed, 653n. in assessing damages, jury may not indulge in vague conjectures, 656. view of premises by jury — great weight attached to, 657n. the jury — legality of panel — validity of proceedings, 665. view of premises — facts acquired on, not evidence, 666. questions for jury — benefits, 667. PROCEEDINGS— See Assessment Roix: Record. PROPERTY— rights appurtenant to use of, 152. when physical injury to, constitutes a taking, 153. must be actually taken, or use limited, to require compensation, 155. of, damaged for public use, 165, 166. all kinds of real, subject to s. a., 280. only tangible, can abut a street, 290. assessable for sewers only when capable of connection therewith, 294. all, directly benefited, should be assessed, whether in fee or for years, 296. location of, assessable, 302. educational, religious and charitable, not exempt from s. a., 318. except by statute, 318, 319. cannot be taken by taxation under guise of benefit, 472. assessments in excess of value of, 486. what, assessable, 537. on both sides of street may be assessed, 537n. but not for repairs, 537n. omission of, from s. a., 542. assessment against, by description, usually sufficient, 550. change in ownership of, does not affect s. a., 550. assessment against unknown owners, 550. in two assessment districts, 554. assessment of non-abutting, 622n. 58 913 INDEK. (References are to section numbers.) PROPERTY OWNERS— See Abutting Ownees; Owneeship. requiring assent of certain proportion of, 436n. requiring petition by majority of, in district, 436n. commissioners not necessarily disqualified as being, 511. name of, necessary in assessment roll if statute requires, 539. rights of, to object to judgment of confirmation, 627n. not parties to contract between contractor and municipality, 703n, when, may be estopped, 727, 732n. standing by without remonstrance may estop, 726. not estopped to set up facts to show lack of jurisdiction, 734. bound to give notice of invalidity of s. a. to any one, 734n, 736. when, not estopped, 735. duty of, to act promptly and avoid laches, 736. when, may have mandamus to compel condemnation, 764. when may recover illegal tas paid, 778n. when assessed benefits, may enjoin diversion of fund, 811. duty of, in reassessment proceedings, 831. PROPERTY SUBJECT TO SPECIAL ASSESSMENT— in general, 279-280. public property, 281-283. street railway property, 284-288. railroad property, 289.-293. agricultural lands, 294. personal property, 295. realty benefited, 296. realty dedicated, 297. ownership, 298. street intersections, 299-301. location of, 302. "abutting" property, 303-304. " adjacent property," 305. " adjoining " property, 306. " contiguous " property, 307. " local " or " vicinity " property, 308. fronting property, 309. square and block, 310-311. PUBLICATION OF NOTICE— See Notice. may be authorized by legislature, 367. strict compliance with statute necessary, 367, 370. proof of, 371-373. ordinance, on Sunday only, 398, 434ni. in general, 434. requirements for, usually mandatory, 434. certificate of, essential to jurisdiction, 437. 914 LNDHX. (References are to section numberSi) PUBLICATION OP NOTICE (Continued), evidence — .proof of, 572n. absemce of proof of, 62 In. PUBLIC BUILDINGS— cost of, payable from general levy, 276. PUBLIC GROUNDS— liability for coat of paving opposite, 594n. PUBLIC PROPERTY- exemption of from s. a., 313. PUBLIC PURPOSE— all taxation by s. a., must be for a, 54, 203, 204, 242, 266. a limitation on power of s. a., 203. reclamation of swamp and arid lands a, 205. must also be for a local improvement to justify s. a., 205. test of whether a matter is for a, 208. instances of what constitutes a, 209. creation of levees, dykes and breakwaters is a, 258. act for drainage of farms not for a, 266. road through agricultural land not a, 29 5n. when delegation of power to jury for, majority sufficient, 448. PURPOSES— See PtTBUO POBPOSES. for which s. a. authorized, 242. legislative provisions for reimbursement, for private, 316n. PUMPING WORKS— See Watebwoeks, Pipes and Mains; Sewebs. for sewerage system, when authorized, 268. in reclamation district, 526. PUNCTUATION— will not override plain rules of statutory construction, 196. PURCHASER— See Sales; Caveat Emptob. at tax sale — in general, 742. caveat emptor, 743. subsequent, vrith knowledge, 744, 744n. Q. QUALIFICATIONS— of commissioners or appraisers, 610i-513. QUANTUM MERUIT— when there may be a recovery on, 772n. recovery by city on, 815n. 915 INDEX. (References are to section numbers.) QUO WARRANTO— proper method for detenndiijiiig legality of assessmeat board, 624. of inquiring into legality of commissioners, or drainage dis- tricts, 765. R. RAILROADS— contiguous to street improvement are subject to special taxation, 246. right of way, tunnels and enclosed grounds, when not liable to s. a,, 246, 289, 290, 292. may be assessed for drainage, 290. property of, when not assessable, 255, 288n, 289, 321. impressed with a public use, 321. right of way — no ambiguity in term, 291. subject to special taxation, 291. statute requiring, to make street crossings — no benefits, 434n. expense of paving property of, improperly included in estimate ol cost, 527n. RATIFICATION— See Cdbatve Acts; Reassessments. BEADVERTISING— when necessary, 450, 455n. REASONABLE— ordinances must be reasonable, 388. REASSESSMENT— See CuBAirvB Acts; Reassessment Statutes. notice of, must be given, 350. new assessment will not cure defect when ordinance invalid, 418. curative acts — in general, 816-818. statutes authorizing, 823. constitutionality of, statutes, 824. validity of, statutes, 825. construction of, statutes, 826. must be based on benefits, 827. statute of limitations, 828. continuation of original proceedings, 829. payment of interest, 830. duty of property owner, 831. when, may be ordered, 832-837. not permitted, 838-841. REASSESSMENT STATUTES— validity of, are generally admitted, 823, 823n. are constitutional if omitting no requirement which could first have been omitted, 824. 916 INDEX. (References are to section numbers.) REASSESSMENT STATUTES (Continued). cannot validate retrospectively what it could not originally haw authorized, 825. construction of — no retrospective eflCect, unless intention clearly appears, 826. must be based on benefits, 827. correcting invalid assessment — extent, 827a. changing words in, 827a. under a new charter, 827a. validating warrants — invalid attempts at incorporation, 827a. proceedings under, a continuance of old ones, 829. EECITAI^ of jurisdictional facts, is a finding, 635. conclusive against collateral attack, 635. KECLAMATION— See Dbainage and Drainage Districts. of swamp and arid lands is a public purpose, 205. s. a. for, of swamp lands may be levied on town, 294. statute of Oalifornia requires s. a. according to benefits, 496. when cost of pump, etc., in, district, included in cost of work, 626. RECONSTRUCTION AND REPAIRS— in geneiral, 596. RECOVERY BACK— Bee Payment. by owner, when proceedings abandoned, 463n<. purchaser at tax sal© — when allowed, 742. in general, 769-770. facts outside the record, 771. failure of jurisdiction, 772. ignorance or coercion, 773. abandoning work — failure of consideration, 774. unconstitutional assessment, 775. voluntary and coimpulsory payments, 776. regular proceedings have force of judgment, 775n. who may recover, 777. mistakes in payment, 778. when statute of limitations runs on, 779. when no recovery, 780. vested rights in, of void assessments, 781. assessment valid on its face, 782. invalid on its face, 783. rule alike as to taxes and assessments, 784. because of failure of consideration, 786. of costs of suit — when not allowed, 814n. by city on quantum meriut, 815n. 917 rSTDEX. (References are to section numbers.) RECiOED^ ■what, must show as to notice, 360. ordinance should be placed on, 379. of adoption of ordinance — ■presumptions, 382. must aflSrmatively show compliance with requirement for petition, 416. rule of apportionment and method of application must appear on, 467. what must afiirmatively appear in, 480, 561. must show consideration of both benefits and damages if charter requires, 483. commissioners possess statutory qualifications, 511. actual view of premises, 522, 522n. evidence aliunde to impeach, of assessment, admissible, 523. s. a. void if, shows was made before meeting of board called for making, 551. what, of assessment proceedings must show, 559. every essential prerequisite must appear upon the face of, 559. sufficiency of, 560, 561. proceedings void on their face, 572n, REFERENCE— to plans, etc., on file, 389. KEMIAINDEEMAN— should bear expense of s. a. ratably with life tenant, 2 In, 590n, 722, 789n. apportionment between, and tenant by courtesy, 469. when need not contribute for street improvement, 710n. EEMONSTRANCE— by petitions against improvement, 338. RES JUDICATA— judgment of confirmation on appeal, when bar to second, 625. application of principle to second trial, 625. judgments of courts of review are, in subsequent applications, 630n. after assessment for park purposes made and divided, validity is, 630n. when adjudication of damages is, 645n. decree declaring assessment void, no bar — when, 699n, REPAIRING AND MAINTENANCE— See CONTEACT; STREETS; PAVING. of old ditch, 294. provisions in contract for, for term of years, 401, 405, 453n'. street work constituting public improvement, and not 406. contract for future, invalid, 453n. agreement for repair of street, 597ni. 918 INDEX. (References are to section numbers.) EEPAVING— S€e Paving; Eepaibs and Maintenance. not a charge against abutting property in Pennsylvania, 249, 260. BEPBAI^ effect of, of ordinance, 387. REPLEVIN— when not maintainable, 779n. REQUISITES— notice and opportunity for hearing, of due proeesa, 141. to validity of ordinance, 384, 385. in making assessment, 552. RESOLUTION— in general, 342. when sufScient or valid, 343-344. insufficient or invalid, 345. an initiatory step in s. a., 326. ordinance cannot be amended, suspended or repealed by, 383. as to kind of stone, complying with ordinance, 445. directing clerk to publish notice not illegal delegation of TpiMtsr, 445. RESOLUTIONS AND ESTIMATES— imnecessary that, should be technical in wording, 693. for widening street, 593n. description of work, 59 3n. failure to determine material, 593n. detailed estimate — variance, 593n. meaning of "delivered," 593n. RESTRICTIONS— See Contract; Bids and Biddees. upon freedom of competition, or increasing cost, illegal, 452. what constitutes, 452. that are not invalid, 453. restrictive clause not in ordinance — bidders ignorant, 452n. not a part of specifications, and not affecting bidding, 452n'. RETAINING WALLr- construction of may be payable by s. a., 255. when expense of, may be included in cost of work, 526, 582. RETROACTIVE. LAWS— generally invalid, 169n'. legislation not impairing vested right — constitutional inhibition as to, 383. 919 nroEx;. (References are to section numbers.) REVERSAL OP JUDGMENT— See Judgment. REVIEW OP BENEPITS— determination of council as to amoimt, 619. BHODE ISLAKn>— equality and uniformity clause in constitution of, 107. EIGHTS AND REMEDIES OF TAXPAYERS^ See Cebtioeabi; Mandamus; Equity; Tbespass. when statute creates new right and prescribes remedy, it is exclu- sive, 680. existing — effect on, of new statutes giving additional, 700n. right to appeal purely statutory — remedy for unfair assessment by, 755n. where s. a. is arbitrary and fraudulent, owner may have relief in equity, 760. or by a common law action for damages, 760. election of remedies by> taxpayer, 789n. ROADS AND HIGHWAYS, COUNTY— not proper subjects of s. a., 253-254. mere transfer of, to city, does not make it a street, and subject to s. a., 281. ROCK EXCAVATION— specifications giving no estimate of amount of, avoid contract, 450. price of, cannot be fixed in ad. for proposals, 457n. extra cost of, for sewer — to what chargeable, 611. exorbitant price for, as evidence of fraud, 739. payment for, in ignorance of invalidity, 776. RULE OP ASSESSMENT— any other, than as prescribed by statute is invalid, 515, SALE— a legal assessment is the foundation of authority for, 700. redemption from second, 700n. for an unpaid s. a. is the execution of a naked power, 700. liability of non-adjacent lot to, for deficiency, 700n. of undivided interest — notice, 700n. when part of tax illegal, is void, 700n. when, void — caveat emptor, 702. cemetery property not subject to, 702. no objection to validity of s. a. against school property that it can- not be sold, 702n. 920 INDEX. (References are to section numbers.) SALE (Continued). for less than ajmount of tax, 702n. of too much land, 702n. purchaser at tax, — in general, 742. takes title free from s. a. liens, 742. of several lots together, 814n. void — unlawful contract, 816n. SCHOOL PROPERTY— not subject to sale for unpaid s. a., 702n. SEAL— not necessary to corporate signature to petition, 330. SEWERS— See Stebxt; Dbains and Seweks; Outlets. may be laid under police power, 40, 41. when notice and hearing of assessment for, umnecessary, 145u cost of maintaining, proper subject of s. a., 146. a species of drain, 230. assessment for, by area, equitable, 230. new sewer to furnish outlet, 294. license fee may be charged for use of, 294. diversion of natural stream into, may justify s. a., 294. when no notice of assessment for privilege of using, necessary, 351. ordinances for, 411. may be constructed under resolution if charter permits, 411. invalid ordinances for, 428. fixing starting point, 429. requirements for being sufficiently specific, 429. method of connection within discretion of council, 441. powers over, which council cannot delegate to city engineer, 446. purchase of pipe for, froim city, is valid, 461n, enhanced value of property in future because of, not to be con- sidered, 482. cost of lateral and cross drain pipes — when included in cost of work, 526. In general, 598. not a, new servitude, 598. assessment by benefits, 599-603. future benefits, 604. front foot rule, 605. sewer districts, 606. plana and specifications, 607. private sewers, 608. outlets, 609. connections, 610. assessments and objections, 611, 612. 921 INDEX. (References are to section numbers.) SEWEBS (Continued). drainage and drainage districts, 613, 614. standing of abutting owners when street regraded for pavementj 582. s. a. for, passing through private property, illegal, 603. must furnish benefits, or s. a. for is illegal, 603. only territory drained by, assessable for costs of, 606n. when omission to file general plan of, fatal to s. a.,- 607. must be laid on line indicated by ordinance, 612. assessment for cost of, based on valuation, is void, 61. entire cost of assessable against land benefited under Indiana stat- ute, 612n. what defenses inadequate, 612n. character of work not changed by name, 612. s. a. for, being a tax, cannot be collected by action, 686n. not a necessary part of » street, 816. SEWER ASSESSMENTS AND OBJECTIONS— sale of frontage after recording of plat does not affect validity of s. a., 611. SEWER CONNECTIONS— See Sewers ; Outlet. charter provisions as to, must be strictly complied with, 609. requirements for, with dwellings within power of local authorities, 610. that connections cost less on one side of street does not justify variance in s. a., 610. SEWER DISTRICTS— property in one, not assessable for work done in another, 606. but money may be spent in another for outlet or completion of work, 606. may be created within limits of a larger one, under certain cir- cumstances, 606. SHADE TREES— contractor who unnecessarily takes up, liable to owner, 642. destruction of shade trees, an element of damage, 657. effect of destruction of, on value of whole property, 660. urging care in removal of, not an estoppel, 735. SIDE HILL— city cannot excavate full width of street on, 642. SIDEWALKS— See Steeet; Special Taxation. no rule requiring part of street to be set aside for, 249. 922 INDEX. (References are to section numbers.) SIDEWALKS (Continued). usually laid under police power, 40, 41, 252. may be paid for by a. a., 252. removal of snow from, 44, 272-273. culverts not a part of, 251. removal of snow from, 273. in front of part of lot, chargeable to whole lot, 299. notice as to, when imnecessary, 351. ordinance for, 409. city engineer cannot order, except as by ordinance, 409. invalid ordinances for, 426. not included under macadamizing, 461n. assessment for filling under, 506n. no objection to s. a. for that it is on private property, 546. where general ordinance provides mode ol s. a., special ordinance need not recite, 557. in general — necessity of notice, 615. single improvement, 616. what included in, 617. power of council over — how exercised, 618. review of benefits, 619. liability for cost of, 620. in general — necessity for notice, 615. demand to construct, and refusal, necessary to create lien, 615. on each side of street may be included in single improvement, 616i what included in cost of construction of, 617. power of council over — how exercised, 618. review of benefits for, 619. liability for cost of, 620. unauthorized removal of, an actionable trespass, 767. SIGNATURE— to petition, must be those of actual owners, 328. which does not bind owner, not coimted in petition, 329. sufficiency of, and authority for, 330. sufficiency of, to petition, 335-337. eflfect of, 338. unauthorized, may be ratified in certain contingencies, 331. effect of, when followed by words descriptio personal, 332. relief in equity against, procured by fraud, 341. printed, when sufficient in foreclosure proceedings, 680. SNOW— See PoLicB PowEB. removal of, from sidewalk, 272, 273. SOUTH CAROLINA— only state denying constitutionality of s. a., 8, 109. equality and uniformity clause in constitution of, 108. 923 INDEX. (References are to section numbers.) SOUTH DAKOTA— definition of s. a., 39n. equality and uniformity clause in 110. 8PECLAL ASSESSMENT— See Assessments; Bekefits. as a source of municipal revenues, 2, 4. origin and history of, 5. origin in America, 7. English precedents, 8. distinction between, and tax, 9. can be levied only on land, 12a. cannot be made a personal liability of the owner, 12su. distinction between, and special taxation, 19. when, included in word "tax," 20. not included in word "tax," 21, 529. should be paid ratably by life-tenant and remainderman, 20n. not payable by lessee under agreement to pay all taxes, 20n. taxes and, defined, 36. definitions of, 18, 37, 38, 38n, 56. legal theories of power of, 39. an exercise of the power of taxation, 47-49. constitutional authorization unnecessary for, 50. restraints upon power to levy, 54. must be for public purpose, on property benefited and properly ap- portioned, 54. what is meant by term, by special assessment, 55. of personal property, 55. must be within clearly defined district, 55. author's definition of, 56. objections to system of, 57, 59-63. merits of system, 65, 66. authority for in state constitutions, 67. power of, may be conferred on counties, 93n. cost of maintaining sewers, proper subject of, 292. power of, a continuing one, 185, 323. express statutory power necessary, 186, 190, 509, 559. statutes conferring power, are in itwitum, 195, 323. must be for a public purpose, in a fixed district, 203, 204. may only be levied by corporations having municipal functions, 207. substantially exceeding benefits, is a taking, 237. not usual to pay for country roads and highways, 253^254. specific purposes for which, authorized, 242-278. miscellaneous cases of, 276-277. may be levied on street in front of court house, 282. exemptions from, 282, 283, 284, 312. 924 INDEX. (References are to section numbers.) SPECIAL ASSESSMENT (Continued), when may be levied on a town, 294. power of, resides in legislature, 322. various steps in, proceedings, 326. petition requisite when required by statute, 327. proper basis for — benefits must be considered, 420, 420n. unauthorized increase of cost of, will avoid, 447. defects in, affecting substantial justice, not aided by charter pro- visions, 585. is a trust fund, 678n. failure of city to collect s. a., 678n. cannot be collected out of lands not assessed, 697n. is a charge against the land and not the owner, 722. fraudulently made is absolutely void, 738. invalidity of as available to subsequent purchaser as to owner, 744. certiorari eminently suitable for review of, proceedings, 745. valid on its face, voluntarily paid, when not recoverable, 782. invalid on its face, voluntarily paid, cannot be recovered, 783. equity will not interfere to vacate s. a. for irregularities, except for fraud, 802. SPECIAL FUND— liability for payment of s. a. arising from creation of, 674. general rule as to payment from general fund, 675. when no liability for failure to provide, 675. SPECIAL TAXATION— See Sidewalks. what subjects embraced under, 2. distinction between, and special assessment, 19, 83, 485. power of, under Illinois constitution of 1870, 19. only contiguous property subject to, 19, 19n. for building embankment, 88n. of contiguous property is valid, 222. decisions as to, see note at foot of p. 204. railroad contiguous to street improvement, subject to, 246. estimate for curbing may be included in work payable by, 405. in general, 485. decisions on, as to sidewalks contrary to principles of s. a., 485n, of contiguous property does not violate Illinois Constitution, 619n. SPECIFIC— ordinance must be, 398, 403, 413. need not set out each detail, 399. instances of paving ordinances sufficiently, 407. of curbing ordinances sufficiently, 408. sidewalk ordinances sufficiently, 409. sewer ordinances sufficiently, 413. 925 INDEX. (References are. to section numbers.) SQUAKES— See Intebsection. definition of, 310. location of property in fourths of, determines liability, 299, 300, 572. omission to assess, formed by street intersections, when proper, 538. when sidewalks included in improvement of, 538. when assessment in, invalid, 621n. fSTATUTES AND ORDINANCES CONFLICTING— 201n, 385, 649. STATUTES, CONSTITUTIONAL— in general, 167-169. tested not by what has been but what may be done under it, 168. requiring citizens to work in street, or pay three dollars, 169; making issuance of bonds conclusive evidence of regularity, not jurisdictional, 562. as to estoppel, 731. STATUTES, UNCONSTITUTIONAL— when no provision for notice and hearing is made, 136. fixing assessment for certain year as basis of compensation for tak- ing, 176. for storing debris and promoting drainage, 169n. drainage act which does not establish boundaries, 169n. granting private corporation power to lay water rents, 260. levying annual tax of ten cents per foot on water pipe, 261. containing more than one subject, rule does not apply to ordi- nances, 393. fixing minimum rate of wages on public work, 452. forbidding employment of alien labor, 452n. making issuance of street improvement bonds conclusive as to validity of lien, 562. for laying sewers on private property, to be paid by s. a., 608n. when, forbidding court to act is unconstitutional, 789n. when 8. a. made under unconstitutional, it is void, and no cloud, 791. STREET— or alley not contiguous property, 217. power of s. a. generally employed for, improvement purposes, 244. opening, widening and vacating, 245-247. grading and paving, 248, 249. repairing and maintenance, 250. culverts, 251. sidewalks, 252. forming part of park system may be specially assessed, 257, 283. 926 INDEX. (References are to section numbers.) STREET (Continued). under power to maintain, Council may construct sewers, 267. lighting of, may be subject of s. a., 273. not created by mere transfer of country road to city, 281. intersections, etc., not assessable, 299, 304. s. a. on property terminating in cul de sac, 300. assessment of alley continuation, 301. improvement of alley is a special benefit to abutting lots, 304n. may be widened or opened up in sections, 387. stifficiency of ordinance fixing width of, 406. findings of Coimeil as to unsafety of, not conclusive, 437. city may not purchase easement for, 535. Legislature may authorize condemnation of fee simple for, 535. when, improved in sections, s. a. may be only on property fronting sections, 537. intersections — squares formed by are assessable, 538. Council may determine pavement at, 538, 592. when s. a. of, may be omitted, 539n'. property on both sides of, should be assessed, 542n. erroneous omission of property on one side of, invalidates s. a., 542n. whole, may be improved under one resolution, though having various names, 544. laving difi'erent widths may be divided into sections accordingly, 544. diflFerent streets may be paved imder one resolution, 544. for invalid law as to assessment of street intersections, 556n. unlawtful obstruction of, a nuisance, 581. restriction as to change of grade of, after once duly established, 583. putting macadamizing material on, not a change of grade, 586. mere surfacing of, not a pavement unless so intended, 587. authority to pave, authorizes any kind of pavement, 587. exemption from assessment for paving, unless foundation concrete, 597n. when provision for repairs invalidates assessment, 597n. impairing use of, is a, taking of property, 152. narrowing roadway paved by owner, 597n. what complaint on change of grade must show, 597n. sidewalks at intersections of two — invalidity of s. a. for, 618. assessment of city streets by park commissioners, 621n. change from, to canal, 62 In. assessment on one side of, only, 622n. damages for change of grade of, 644^49. shortage of fund for street intersections, 814n. STREET IMPROVEMENTS— See Paving; Geading; Cubbing; Sewers; MAOADAMizma. 927 INDEX. (References are to section numbers.) STREET IMPROVEMENTS (Continued). require notice and opportunity for hearing, 144. railway contiguous to, subject to special taxation, 246. STREET RAILWAY PROPERTT— whether subject to s. a. or not, 284-288. tracks of, not assessable as " abutting property," 304. liability of, for paving, 597, 597n. non-assessment of, 621n. STREET SWEEPING AND SPEINIi:LING— may be required under police power, 44. by s. a., authority doubtful, and courts divided, 44. and removing snow from, 272-273. SUBDIVIDING LANDS— for assessment purposes, 543. SUFFICIENCY— of signature to petition, 330-333. of petition, 335-337. of resolution, 343-345. of notice, 353-359. publication and proof, 370n. of ordinance, how determined, 385. description in ordinance, 403. SUFFICIENCY OF RECORD— See Record. to be determined by inspection of entire proceedings, 560. of answer to petition for certiorari, 752a. SUITS— to vacate assessments, 531. what, covered by statute, 531n. SUNDAY— See Notice. in matters of publication of notice, 370n, 371, 372. ordinance, 398, 434n. statute of limitations, 531n. SUPERINTENDENT OP STREETS— cannot vary contract to alter cost of improvement, 447. discretion of Council cannot be delegated to, and city engineer, 447. SWAMP LANDS— See Reclamation; Deainage and Drainage Distbicts. absence of one commissioner appointed to view and assess, 518. 928 INDES. (References are to section numbers.) SURVEYING AND SUPEEINTENDENCE— expense of may be added to cost of work, 525. T. TAKING— See FouBTEENTii Amendment. constitutional provisions as to, no limitation on police power, 41. of property may be under police power, eminent domain, or taxa- tion, 49. constitutional restraint on, does not apply to taxation, 49n. provisions against, must be construed with those authorizing special taxation, 122. without due process not violated by front foot rule, 14G. what constitutes a, 151-159. is not a, 160-164. prohibition against, includes exercise of taxing power, 152. impairing use of street may be a, 152, 153. when, without compensation, not unconstitutional, 152. removal of lateral support constitutes a, 155. just compensation for, a judicial act — Council award not con- clusive, 157. notice unnecessary under appropriation for, by frontage, 164. what is just compensation, 175. fixing compensation for, on basis of assessment of certain year, 176. front foot rule not objectionable as authorizing a, 508n. collection of more than cost of work is a, 528. damages for, 651. where property is injured by the improvement, 670. enforcing collection against property not benefited is a, 679. what is not a, in s. a. proceedings, 818. TAXATION— See General Taxation. necessity for new methods of, 1. division of, into three classes, 2. theory of equivalents, 3. comparison of general, with special, 4. necessary for support of government, 11. power of, must award owner just compensation, 47. full authority for levying s. a., 48, 49. Tenth Amendment, as factor in, 50. a sovereign power, 50. ■may be controlled by the legislatures of the several States, 51. . requisites of, by special assessment, 55. not equivalent to assessment, 91n. notice and opportunity for hearing, essential, 136, 141. 59 929 INDEX. (References are to section numbers.) TAXATION (Continued). prohibition against taking, etc., includes, 152. when express grant necessary for exercise of power of, 152. mode of, prescribed by Legislature, must be followed, 191. property taken by, must be for public good, 204, 204n. what necessary to uniformity of, 210. power of, unlimited, 211n. must be uniform, 212. county roads and highways paid by general, 253. general, for part cost, will not relieve lands from s. a., 280. is an act of sovereignty, 312. cannot disregard apportionment, 501. adding certain expense to cost of work, not double, 525. no defense to s. a. that general tax to pay part not first levied, 621. TAX DEEDS AND CERTIFICATES— title under. Is stricti juris, and conditions precedent must be com- plied with, 741. TAXESh- See Geneeal Taxation. distinction between, and special assessment, 9. comparative definitions, 18. when the word, includes " special assessments," 20. does not include " special assessments," 21. annual, should be paid by life-tenant, 21n, and special assessment defined, 36. power to levy, is an incident to sovereignty, 67n. can be levied only by public oflBcials for public purpose, 123. laws for, must have object expressed in title, 198. all, must be for a public purpose, 204. local, imposed only by consent of people of district, 207. for corporate purpose, must embrace entire city, 214. sewer assessments a kind of, 263. where legal and illegal parts of, can be separated, only latter quashed, 703n. rule as to recovery back alike out, and assessments, 784. levy of, not a judicial act, 800. TAXING DISTRICT— See Appoetionment. clearly defined, essential for levy of valid s. a., 55. fixing, a purely legislative function, 213. but Legislature may delegate the power to municipalities, 213. legislative discretion as to size of, 213. should be fixed in advance of s. a., 214. may embrace entire city, or fixed part, 214. essential to valid local assessment, 214n. 930 INDEX. (References are to section numbers.) TAXING DISTRICT (Continued). may be created in several towns or counties, 215. money raised by s. a. must be spent within, 304. when unnecessary to fix, for sewers, 411. fixing — apportionment — power of Legislature, 466. may be created without regard to boundaries of counties or mu- nicipalities, 465. extent of, must depend on the facts in each case, 466. power of courts over, 466, 467. of some kind is essential to a valid tax, 467. may be designated by street frontage, 503. invalid s. a. in — example, 523n. defining, by reference to map, 534n. omission of property from assessment establishes a new, 542.. assessment of property in two, 554. sewer districts, 606. TAX LIMIT— exceeding tax limit, 529. TAX ROLL— See Assessment Roll. TENANT— by the courtesy — estate of, assessable, 298. TENANT FOR LIFE— See Life Tenant. TENNESSEE— power of s. a. in, formerly attributed to police power, 40.^ constitutional authority for s. -a. recognized in, 11 2n. TENTH AMENDMENT— as factor in authorizing s. a., 50. ■ difference between, and old Articles of Taxation, 52. TEXAS— when " tax " does not include " special assessment," 35. power of s. a. attributed to police power, 40. equality and uniformity clause in Constitution of, 113. THEORY— of equivalents, 3, 264. legal, of power of s. a., 39. that s. a. is a distinct power vested in councils, 39. TIME— computation of, 377. general rule for, 377. publication of ordinances — two weeks, shall elapse, 434n., 931 INDEX. (References are to section numbers.) TIME (Continued). for completion of work, 457. extension by statute avoid when of the essence of the contract, 457. when, not of the essence of the contract, full performance may be waived, validity of contract not let in, 461n. proceedings regarded as abandoned unless damages paid in rea- sonable, 463. for making assessment, 551. method of payment governed by law in force when contract was made, 556n. for making objections usually after assessment and before con- firmation, 565. when, for filing extended to a certain day, must be filed before court opens that day, 565. limitation of, in which to bring action on contract, 688. for completion of work — late but sufficient, 690. TITLE— agreement to give good, includes sewer assessment, 20n. assessment foreclosed by lien, 20. covenant for, does not include s. a., 21. acquiring, before improvement, 546. purchase of tax, by administrator, 740n. TRESPASS— See Rights and Remedies op Taxpayers — Damages. in, guare clausvm, plaintiff entitled to consequential damages, 644n. a proper action to recover damages when s. a. illegal, 758n. advantages of action of, in recovery of damages, 766-768. right to, preserved by Oregon Constitution, 766. benefits cannot be offset in action for, 766. imauthorized removal of sidewalk is an actionable, 767. measure of damage for, its value as laid, 767. will lie for removal of natural support of land, 768. the corporation and all officers connected with the, are liable, 768n. lies against a municipal corporation, 768n. threatened, by city may be enjoined, 811. TRINIDAD lAKE ASPHALT— specifications for, not objectionable as fostering a monopoly, 459. TRUSTEE— effect of signature to petition by, 332n. city purchasing s. a. certificate is a, 700n. TRUST FUND^ See Speoiai, Fund. TUNNELS— s. a. of, 246. 932 INDEX. (References are to section numbers.) u. ULTRA VIRES— contract — bond, 461n. UNTOONSTITUTIONAL ASSESSMENT— not essential to recovery that s. a. be first declared void, 775. UNION LABOR— See Chinese Labor. requirement as to, in ordinance, when without effect, 398. unconstitutional, 417. UNPLATTED LAND— See Subdividing. when subject to s. a., 476. UNREASONABLENESS— See Ordinance. of ordinance makes it void, 411. when sewer ordinance void for, 411. USE OP LAND— immaterial as what, or any, regarding power of s. a., 209. damages where there is a restricted, 656. U. S. SUPREME COURT— distinction by, between " tax " and " special assessment," 10. USURPER— See De Facto and Db Jube. VALID ASSESSMENTSr- See Instances. examples of, 621. VALID CONTRACTS^ See Contract; Instances. examples of, 46 In. VALID RESOLUTIONS— See Instances. in general, 343, 344. VALIDITy— of ordinance — requisites to, 384, 385. published in Sunday newspaper only, 398. Iowa s. a. statute, 499n. Indiana s. a. statute, 499n. 933 IITOHX. (References are to section numbers.) VALIDITY (Continued). test of, of assessment, 621n. of confirmation, 639. VALUATION— time of, the assessment being based on limitation! of, 527n. VALUE— See Assessment; Benefits. assessment by, frequently adopted in drainage cases, 231. in excess of, of property, 485. when payment of full, improper, 497. of improvements of doubtful validity, 562. on lot by size or width without reference to, invalid, 555. witnesses as to, 57 In. failure to, before assessment, 622. of property for subdivision, or future purposes, may be shown, 657. market — present use, and that to which adapted, 657n. change of market, 658n, 659. VAEIANCE— in dates of publication, 35Sn. between work done and ordinance requirements, 392. from former assessment, &27n. VEBDICT— See PBooiaJUBB. VERMONT— equality and uniformity clause in Constitution of, 114. VESTED EIGHTS— purely remedial legislation does not impair, 383. extent of contractor's, to have city levy s. a,, 678n, 686n. where statute creates new right, and prescribes remedy, that is exclusive, 680. no, to recover amount paid on void s. a., 781. in rights of action or defenses based on mere technicalities, 781. in the remedy in force when cause of action arose, 820n, 826. when, may be divested, 820n. VIADUCTS^ See Beioges and Viaducts. VXCINITY— See "Local" Peope»tt. VIEW— actual, of property necessary in s. a. by benefits, 232, 480. of premises by commissioners, 522. 934 INDEX. (References are to section numbers.) VIEW (Continued). must exercise their own judgment after, 522. report of com!missioners as to, not conclusive, 522. when, impracticable, properly identified photograph — when' com- petent, 522. of premises by jury — great weight attached to, 657n. within discretion of trial court to require, 666. facts acquired by jury from, are not evidence, 666. of premises by trial judge, 666n. VIEWERS— appointment of, invalid if made before ordinance passed, 419. VIRGINIA— equality and uniformity clause in Constitution of, 115. VOLUNTARY APPEARANCE— may amount to a waiver, 737n. VOTE — charter requirements as to, and record must be followed, 443. when requirement as to two-thirds, complied with, 447n. W. WAGES— See CoNTEACT; Chinese Labob; Union Labob. fixing minimum rate of, a restriction, 452. statute fixing minimum rate of, unconstitutional, 452. WAIVER— See Appeal; Estoppel. when dedication constitutes, of claim for damages, 268. of notice, 374-376. by appearance, 350n. if relied on, must be pleaded, 376. performance of sewer contract by Council, 451n. objections not Tirged at confirmation of assessment roll a, 629n. when Irregularity in attendance of jury not waived, 665. when payment neither, nor estoppel, 720. and acquiescence involve same principles as estoppel, 737. voluntary appearance construed as, 737n. as basis of estoppel, 761n. bars remedy, 76 In. must be with knowledge — valid without consideration, 761n. two causes of action — objections waived on appeal, 76 In. WARRANTS— village, not negotiable instnmients — village not estopped to deny liability, 72 In. 935 INDEX. (References are to section numbers.) WASHINGTON— distinction between " tax " and " special " assessment in, 16. definition of s. a., 39n. equality and uniformity clause in Constitution of, 116. offset of benefits and damages not contrary to Constitution of, 156. WATER COURSES— improTement of, by s. a., 274. WATER RATES— are not taxes, but enforceable as a lien, 261. annual tax of three cents per foot not enforceable as a s. a., 261. ten cents, contrary to Fourteenth Amendment, 262n. WATER SHED— See Dkalnage and Dkainage Districts. amount of, not a proper rvile for drainage assessment, 614. WATERWORKS, PIPES AND MAINS— in general, 259-262. ordinances for, 410, 410n. invalid ordinances for, 427. as an entirety, 427. annual tax on water pipe by lineal foot, 508n. ordinance for laying not void because authorizing, on two streets at right angles, 544. WELLS— partial expense of digging, paid by s. a., 7. and pumps, 43. WEST VIRGINIA— equality and uniformity clause in Constitution of, 117. WISCONSIN— distinction between " tax " and " special assessment " in, 17. tax on all lots or lands in city is not a s. a., 17. meaning of assessment in Constitution of, 36. drainage laws of, sustained as valid exercise of police power, 43. equality and uniformity clause in Constitution of, 118-120. constitutional provision giving remedy for all injuries, 162. as to local acts having subjects expressed in title, 199. special acts amending city charters, 199. cost of improvement chargeable to lot, 248. WITNESSES— See Evidence. commissioners as, 52. declarations, and that of their clerks, inadmissible, 511. 936 INDEX. (References are to section numbers.) WO'EK— See Abandonment; Cost op Woek; Extba Work. time for completion, 457. unavoidable abridgment of, 461n. no costs added unless by statute, 525. plans and specifications must conform to resolution for, 534. must be public to support s. a., 552. including, not ordered by Council, 622n. completion of — late, but sufficient, 690. protest against proposed — presumption, 693n. improper performance of, as defense to collection', 703n, 760n. paying for, already done, 721n. request of landowner for having certain, done estops Mm, 727. taking action before completion of — estoppel, 732. assessment for, already done — remedy by appeal, 760n. imperfect — restraining payment, 815n. done must substantially comply with ordinance, 39. ordinance passed after completion of, invalidates s. a., 417. extra, performance of without order, 451. done, acceptance of prevents resistance to collection of s. a., 454. reserving right to vary amount of work, will not vitiate s. a., 455. failure of contractor — completing, without readvertisement, 454n. finishing, at increased cost, 455n. when assessment for street improvement not void because of extra, 455n. proper performance of, how compelled, 455n. description of, 456. 93Y