levied, collected, and administered by a public agency, elected by and responsibile to the community upon which it is imposed; a local assessment is made by an authority ab extra. Yet it is like a tax in that it is imposed under an authority derived from the legislature, and is an enforced contribution to the public welfare, and its payment may be enforced by the summary method allowed for the collection of taxes. 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 expended in an improvement from which a benefit clearly exceptive and plainly perceived must inure to the property upon which it is imposed."

7

§ 524. Constitutional Requirements of Special Assessments.

The power of the legislature to establish special taxing districts upon the lands within which a special tax is to be levied, assessed, and collected is limited by the following rules: (1) There must be some reasonable ground for grouping into a single district the lands composing it, and this reasonable ground must, as has been seen, be that the lands in question will derive special benefit from the public improvement to meet the expenses of which the tax is levied. It follows, therefore, as of course, that the proceeds of the tax may not be used for any other purpose. (2) The tax so levied must be assessed according to a rule uniformly applied throughout the district, which, in its actual operation, will fairly distribute the tax among the several pieces of property affected according to the benefits received or to be received from the public improvement which is undertaken. Whether or not the assessments may be in excess of the benefits is a question to be presently considered, but in any case they must be apportioned generally according to the benefits. By this is not meant that this apportionment must be absolutely exact. This, in most cases, is an impossibility. But, generally speaking, the part of the entire tax borne by each piece of land must agree with the part of the entire benefit received.

7 George, C. J., in Macon v. Patty, 57 Miss. 378.

8 In Union Refrigerator Transit Co. v. Kentucky (199 U. S. 194; 26 Sup. Ct. Rep. 36; 50 L. ed. 150) the court say:

§ 525. Resort to Special Assessments Discretionary with the Legislature.

When a public improvement is to be undertaken which will result in special benefit to a particular district, it is not obligatory upon the legislature to levy a special assessment upon that district for the purpose. Whether or not it will do so lies within its free discretion. Also the fact that the proposed improvement will be, to a certain extent, of general benefit to the whole community, does not render invalid a special assessment upon the district specially benefited.

In Bauman v. Ross, with reference to an act of Congress relating to the District of Columbia, it was contended by some of the owners of lands that the public improvement proposed was not of a local character, but was for the advantage of the whole country, and should be paid for by the United States, and not by the District of Columbia, or by the owners of the lands affected by the improvement. The court, however, said: "It is for the legis lature, and not the judiciary, to determine whether the expense of a public improvement should be borne by the whole State, or by the district or neighborhood immediately benefited. The case,

"But notwithstanding the rule of uniformity lying at the basis of every just system of taxation, there are doubtless many individual cases where the weight of a tax falls unequally upon the owners of the property taxed. This is almost unavoidable under every system of direct taxation. But the tax is not rendered illegal by such discrimination. Thus, every citizen is bound to pay his proportion of a school tax, though he have no children; of a police tax, though he have no buildings or personal property to be guarded; or of a road tax, though he never use the road. In other words, a general tax cannot be dissected to show that, as to certain constituent parts, the taxpayer receives no benefit. Even in case of special assessments imposed for the improvement of property within certain limits, the fact that it is extremely doubtful whether a particular lot can receive any benefit from the improvement does not invalidate the tax with respect to such lot. Kelly v. Pittsburgh, 104 U. S. 78; 26 L. ed. 658; Amesbury Nail Factory Co. v. Weed, 17 Mass. 53; Thomas v. Gay, 169 U. S. 264; 18 Sup. Ct. Rep. 340; 42 L. ed. 740; Louisville & N. R. Co. v. Barber Asphalt Paving Co., 197 U. S. 430; 25 Sup. Ct. Rep. 466; 49 L. ed. 819. Subject to these individual exceptions the rule is that in classifying property for taxation some benefit to the property taxed is a controlling consideration, and a plain abuse of this power will sometimes justify a judicial interference. Norwood v. Baker, 172 U. S. 269; 19 Sup. Ct. Rep. 187; 43 L. ed. 443." 9167 U. S. 548; 17 Sup. Ct. Rep. 966; 42 L. ed. 270.

in this respect, comes within the principle upon which this court held that the legislature of Alabama might charge the county.of Mobile with the whole cost of an extensive improvement of Mobile harbor; and, speaking by Mr. Justice Field, said: The objection urged is that it fastens upon one county the expense of an improvement for the benefit of the whole State. Assuming this to be so, it is not an objection which destroys its validity. When any public work is authorized, it rests with the legislature, unless constrained by constitutional provisions, to determine in what manner the means to defray its cost shall be raised. It may apportion the burden ratably among all the counties or other particular subdivisions of the state, or lay the greater share or the whole upon that county or portion of the state specially and immediately benefited by the expenditure.'" 10

10 Citing Mobile County v. Kimball, 102 U. S. 691; 26 L. ed. 238. The opinion continues:

"The legislature, in the exercise of the right of taxation, has the authority to direct the whole, or such part as it may prescribe, of the expense of a public improvement, such as the establishing, the widening, the grading, or the repair of a street, to be assessed upon the owners of the land benefited thereby. Davidson v. New Orleans, 96 U. S. 97; 24 L. ed. C16; Hagar v. Reclamation Dist. No. 108, 111 U. S. 701; 4 Sup. Ct. Rep. 663; 28 L. ed. 569; Spencer v. Merchant, 125 U. S. 345; 8 Sup. Ct. Rep. 921; 31 L. ed. 763; Walston v. Nevin, 128 U. S. 578; 9 Sup. Ct. Rep. 192; 32 L. ed. 544; Lent v. Tillson, 140 U. S. 316; 11 Sup. Ct. Rep. 825; 35 L. ed. 419; Illinois C. R. Co. v. Decatur, 147 U. S. 190; 13 Sup. Ct. Rep. 293; 37 L. ed. 132; Paulsen v. Portland, 149 U. S. 30; 13 Sup. Ct. Rep. 750; 37 L. ed. 637. This authority has been repeatedly exercised in the District of Columbia by Congress, with the sanction of this court. Willard v. Presbury, 14 Wall. €76; 20 L. ed. 719; Mattingly v. District of Columbia, 97 U. S. 687; 24 L. ed. 1098; Shoemaker v. United States, 147 U. S. 282; 13 Sup. Ct. Rep. 361; 37 L. ed. 170.

"The class of lands to be assessed for the purpose may be either determined by the legislature itself, by defining a territorial district, or by other designation; or it may be left by the legislature to the determination of commissioners, and be made to consist of such lands, and such only, as the commissioners shall decide to be benefited. Spencer v. Merchant, and Shoemaker v. United States, above cited; Fallbrook Irrig. Dist. v. Bradley, 164 U. S. 112; 17 Sup. Ct. Rep. 56; 41 L. ed. 369; Ulman v. Baltimore, 165 U. S. 719; 17 Sup. Ct. Rep. 1001; 41 L. ed. 1184. See also the very able opinion of the court of appeals of New York, delivered by Judge Ruggles, in People v. Brooklyn, 4 N. Y. 419.

§ 526. Special Assessments in Excess of Benefits.

It has been seen that the justification for a special assessment is the special benefits received. Logically and justly, it would seem, therefore, that such special assessments should in no case be permitted to exceed, to any substantial extent at least, the benefits which justify them. In fact, however, until recently at least, the rule appears to have been that, so long as they are apportioned according to benefits, they are not necessarily measured in absolute amount by such benefits. Thus, for example, in Bauman v. Ross," cited above, in which was involved a law which provided that one-half of the amount measured as damages for the taking of the lands needed for the improvement contemplated should be assessed upon the lands benefited, no proviso appeared to meet cases in which the assessments thus provided for might exceed the benefits conferred; yet the court declared: "This fixing of the gross sum to be assessed was within the authority of Congress."

§ 527. Doctrine of Norwood v. Baker.

In 1898, however, was decided the case of Norwood v. Baker, 12 which seemed to state a new doctrine. The facts in this case were

"The rule of apportionment among the parcels of land benefited also rests within the discretion of the legislature, and may be directed to be in proportion to the position, the frontage, the area or the market value of the lands, or in proportion to the benefits as estimated by commissioners. Mattingly v. District of Columbia; Spencer v. Merchant; Watson v. Nevin; Shoemaker v. United States; Paulsen v. Portland, and Fallbrook Irrig. Dist. v. Bradley, above cited.

"If the legislature, in taxing lands benefited by a highway, or other public improvement, makes provision for notice, by publication or otherwise, to each owner of land, and for hearing him, at some stage of the proceedings, upon the question what proportion of the tax shall be assessed upon his land, his property is not taken without due process of law. Davidson v. New Orleans; Spencer v. Merchant; Watson v. Nevin; Lent v. Tillson; Paulsen v. Portland, and Fallbrook Irrig. Dist. v. Bradley, above cited.

"The whole sum directed by § 15 to be assessed upon lands benefited is onehalf of the amount awarded by said court as damages for each highway or reservation, or part thereof, condemned and established under this act. This fixing of the gross sum to be assessed was clearly within the authority of Congress, according to the above cases."

11 167 U. S. 548; 17 Sup. Ct. Rep. 966; 42 L. ed. 270. 12 172 U. S. 269; 19 Sup. Ct. Rep. 187; 43 L. ed. 443.

these: By an ordinance of the village of Norwood a street was cut through the land of a Mrs. Baker, and a special assessment levied upon her equaling in amount not simply the value of the land taken, but, in addition thereto, the costs and expenses connected with the condemnation proceedings. Only the lands of Mrs. Baker were affected by the ordinance. The validity of this assessment was contested, not on the ground that it would in fact impose a tax in excess of the benefit received, but that the amount of the assessment to be paid, namely, a sum equal to the amount paid for the land taken for the street, together with the cost of the condemnation proceedings, was fixed without any relation to the benefits to be received. It would seem that to this contention it might have been replied that inasmuch as but one piece of land was concerned it was not possible to lay down a rule of apportionment. The court, however, went beyond this and held, apparently, that in all cases a special assessment is prima facie invalid which casts upon abutting property the cost of an improvement, without reference to the benefits received. After admitting that the principle is well established, that abutting owners may be subjected to special assessments to meet the expense of opening public highways in front of their property, the majority of the court in their opinion say: "But the power of the legislature in these matters is not unlimited. There is a point beyond which the legislative department, even when exerting the power of taxation, may not go, consistently with the citizen's right of property. As already indicated, the principle underlying special assessments to meet the cost of public improvements is that the property upon which they are imposed is peculiarly benefited, and, therefore, the owners do not, in fact, pay anything in excess of what they receive by reason of such improvement. But the guaranties for the protection of private property would be seriously impaired, if it were established as a rule of constitutional law that the imposition by the legislature upon particular private property of the entire cost of a public improvement, irrespective of any peculiar benefits accruing to the owner from such improvement, could not be questioned by him in the courts of the country. It is one thing for the legis