sation.1 This doctrine is well settled, and the principle is entirely correct and consistent with the theory of local assessments, for it cannot be said that an apportionment of the expense by the front foot would necessarily exceed the benefit conferred. But the reasoning of the judges in these cases goes much farther. The course of reasoning is this: it is true that in local assessments the burden should be in proportion to the benefit conferred; but the legislature has a large discretion in apportioning the burden of taxation. In imposing the expense of local government on a county or city, the expense of a road on a road district, or of the support of a school on a school district, this discretion is exercised. The legislature determines that the particular district is benefited more directly than other parts of the State or county, and that it is just that the people of the district should bear the expense of this local public work. In the same manner, when a street is improved, the legislature, in the exercise of the same discretion, determines that the property abutting on the street is peculiarly benefited, and that the benefit is in proportion to the number of front feet of the lots on the street. But the benefit in the two classes of cases is entirely different. The benefit of the road is one that is felt by all the citizens of that district, in the increased facility of travel; and so of the school, the advantages of which are participated in by all in the district, and the tax for these things is imposed on all the persons and property in the district. In the case of street assessments, it is not even claimed that the benefit is felt by all persons in the district-indeed, it is conceded that the benefit is not one to persons at all; it is a benefit to property, and to one species of property alone, to land, and the tax is imposed on the land. What kind of benefit can land receive from an improvement of the street running by it? There can be but one answer to such a question, it is a pecuniary benefit; it is the increased value of the land, the fact that its market value is greater after the improvement than before. This benefit, this increased value, is a question of fact, to be determined by evidence, and it cannot be known otherwise. The position that the legislature can determine such a question without any knowledge of the locality, is simply absurd. The claim set up by the judges in these cases, that the legislature may impose the tax accord

1 McGonigle v. Allegheny City, 44 Penn. St. 118; Pittsburg v. Woods, 44 Penn. St. 113; Hammett v. Philadelphia, 65 Penn. St. 148; Northern Ind. R. R. Co. v. Connelly, 10 Ohio, N. S. 159; Creighton v. Scott, 14 Ohio, 438; Allen v. Drew, 44 Vt. 174; Emery v. Gas Company, 28 Cal. 345; Chambers v. Satterlee, 40 Cal. 497; Parker v. Challis, 9 Kansas, 155; Palmer v. Stumpf, 29 Ind. 329. The New York cases are supposed to support the same doctrine. People v. Mayor of Brooklyn, 4 N. Y. 419; Litchfield v. Vernon, 41 N. Y. 123.

ing to the front foot, and that the property is to be considered as benefited, whatever the facts of the case may be, can only be sustained on the ground which is taken by the Iowa court, that it is simply a question of power, not of benefit. The theory that the tax is imposed on the benefits conferred, and the practice of assessment by the front foot, without reference to the increased value of the property by reason of the improvement, cannot logically subsist together, and he who adopts one, must abandon the other.

By Benefits.—In a large majority of cases, this is the rule adopted by the legislature for apportioning the expense of the local improvement, and especially is it true, in the cases of streets, sewers and other improvements in cities and towns. In the States of New Jersey and Illinois, this mode is the only one that can be adopted, and an act which delegates to cities or towns the authority to make the improvements in any other mode is void. But in States which do not regard this as the only mode, it is the mode usually adopted. Sometimes the district is selected by the legislature, and the municipal authorities are authorized to impose a tax on all the property benefited in that district; at other times the municipal authorities are empowered to make the improvement and assess the expense, or a certain proportion of it, on all property benefited, thus leaving to them to determine the limits of the district to be taxed.

§ 148. Power of Municipal Corporations, and the Mode in which it is Exercised as to Local Assessments.-The rule which applies to powers of general taxation, that no power can be exercised which is not clearly granted, and that the power granted must be strictly pursued by municipal corporations, is of equal force when applied to local assessments. The power to impose local assessments must be distinctly and clearly granted. The power "to regulate and improve all streets, alleys, sidewalks, &c.," does not confer such power. The powers to levy taxes for general purposes, and to impose local assessments, are entirely distinct. So where a city charter gives authority "to levy and collect taxes not exceeding one per cent. on all property of citizens of the city," and also "to pass ordinances for paving and keeping in repair the streets, lanes and alleys," it does not confer power to assess on the owners of property abutting on a street which has been improved the expense of the improvement, because they are benefited thereby.s

13 C. E. Green, 519; 13 Am. Law Reg. 190; 34 Ill. 203; 62 Ill. 427.

? Fairfield v. Ratcliffe, 20 Iowa, 396.

3

Annapolis v. Harwood, 32 Md. 471.

When the power is clearly given, then in the exercise of the power it must be strictly followed. If it be to assess the expense on the property benefited, or on adjoining or abutting property according to benefits, or on all property in a designated district according to benefits, no other rule can be adopted. The assessment is made either by assessors or commissioners appointed directly by the legislature, or by the council of the city. When it appears by the report of the assessors that it has been apportioned by the front foot, such an assessment is not valid.1 The report of the assessors must show that the assessment was according to the benefit conferred; and if it appears from the report that it is not according to the benefits conferred, the report should not be confirmed. So under a drainage act, where the report of the commissioners of assessment is subject to be reversed on appeal by the County Court, an assessment per acre was set aside, because not made according to the benefits conferred. And in Kentucky, where it is held that the legislature may direct the assessment to be either by the front foot or in proportion to the number of square feet contained in the lot,5 they nevertheless hold that, if it appears that the property assessed is not benefited by the improvement, but is actually injured, the assessment is not valid."

It will be noticed that the questions discussed in this section are totally different from those in § 147. In that section the question was as to the power of the legislature to adopt one mode in preference to another; here the question is, when the legislature has delegated the authority to cities or towns to assess the expense on the lots or property benefited, whether such a delegation of power limits the municipal authorities as to the mode of making the assessment, or whether, having such authority, they may select the mode of apportioning the expense, and impose it by the front foot, square foot, or value, just as the legislature might have done. The weight of authority and of the analogies of law are decidedly that such a delegation limits the municipal authorities to the mode of assessment according to the benefits conferred by the improvement. In Pennsylvania,

1 State v. Hudson, 5 Dutch. 104; State v. Bergen, 5 Ib. 266; Clapp v. Hartford, 35 Conn. 66.

2 Matter of Opening Streets, 20 La. Ann. 467; Warren v. Grand Haven, 30 Mich. 24; State v. Mayor of Jersey City, 36 N. J. Law, 188; Hungerford v. Hartford, 39 Conn. 279.

Matter of Drainage of Land, 35 N. J. Law, 497; State v. Mayor of Hoboken, 36 N. J. Law, 291; Hoadly v. Com'rs of Lincoln Park, 67 Ill. 559; New Orleans v. Draining Co. 11 La. Ann. 338.

4 People, &c. v. Jefferson Co. Ct. 55 N. Y. 604; S. P. as to mill race, People v. Common Council of Rochester, 54 N. Y. 507.

5 Covington v. Boyle, 6 Bush, 204; Bradley ". McAtee, 7 Bush, 667.

• Louisville v. Rolling Mill Co. 3 Bush, 416, 423.

however, a general delegation of authority "to make rules and regulations and keep the streets in repair, and to collect a tax for that purpose," was considered sufficient to sustain an assessment by the front foot. No case can be found, it is believed, in which an assessment not according to the benefit conferred has been sustained, when the delegation of authority was to assess on the property benefited. The case of Norfolk City v. Ellis, which is seemingly opposed to this position, does not discuss this question. It merely discusses and decides the general question that an assessment by the front foot is not void, and even in that case it is said that there should be a remedy for cases of hardship by appeal to the council for abatement.3

How is the benefit to be ascertained when that is the mode to be adopted? It is usually determined by a board of commissioners or assessors, who view the premises, ascertain what will be the increased value of all the property in the designated district, and what the increased value of each lot of land. The increased market value of the lands is the true rule of assessment. But the fact that the assessors in estimating the increased value of the land, apportioned it according to the value of the respective lots, does not make the assessment invalid.5

What Property Assessed.-The mode of assessment being determined, the next step is to ascertain upon what the assessment is to be made. As a general rule, it is solely upon land, and not on personal property. If the district is defined definitely, all land in the district is liable, without reference to the use or purpose to which it is devoted. Cemeteries are liable, and so is church property,' and property devoted to schools or charitable purposes, and even public property is liable. So railroads, whether merely street railroads, or for other purposes, have such an interest in the streets through which

1 Greensburg v. Young, 53 Penn. St. 280. 326 Gratt. 232, Opinion of Staples, J.

226 Gratt. 224.

4 Matter of Furman St. 17 Wend. 668; State v. Newark, 35 N. J. Law, 157, 167. 5 Piper's Appeal, 32 Cal. 530.

Buffalo City Cemetery v. Buffalo, 46 N. Y. 506; Baltimore v. Cemetery Co. 7 Md. 517. Broadway Baptist Church v. McAtee, 8 Bush, 508; Trustees of Church v. Ellis, 38 Ind. 3; Matter of Mayor of New York, 11 Johns. 80; Le Fever v. Detroit, 2 Mich. 586; Northern Liberties v. St. John's Church, 13 Penn. St. 104.

Sheehan v. Good Samaritan Hospital, 50 Mo. 155; St. Louis Public Schools v. St. Louis, 26 Mo. 468; Cincinnati College v. State, 19 Ohio, 110. It is proper to consider all circumstances which give increased value by reason of the improvement. People, &c. v. Mayor & Council of Syracuse, 53 N. Y. 291.

9 Matter of 9th Avenue, 45 N. Y. 729; People v. Austin, 47 Cal. 353; Brimmer v. Boston, 102 Mass. 19.

they pass, or on which they own land, that they may be assessed for their improvement.1

Where the expense is directed to be placed "upon the adjoining property," in case of a street assessment, the courts of New York claim that it only applies to property contiguous to the street, and not to property adjacent but separated from it; and a lot separated from a street by a narrow strip is not considered as fronting on the street, so as to be assessed. A land-owner, whose lot fronts on a street, cannot withdraw it from liability to assessment, by conveying away a ribbon fronting on the street, after the ordnance for the improvement of it has been passed. Where there is a narrow strip, incapable of use except in connection with the adjacent land, its assessment for benefits is not illegal. In the case last cited, where a street was opened, a party was allowed $8,000 damages for land actually taken for the street, and $4,000 for damages to the land left, which was a narrow strip, and was assessed $3,600 for benefits to this strip. Where there is authority to impose an assessment for the expense of work done in front of a lot, corner lots may be assessed on both fronts."

Personal Assessment.-Can the owner of the lots assessed be made liable personally for the assessment, either by suit or by levy on his goods and chattels for the tax assessed? Where "the city engineer was directed to assess the cost of improvements, make out certified bills against each lot in the name of the owner, which were to be delivered to the contractor for the work, who should proceed to collect the same by ordinary process of law in his name, each certificate to be a lien on the lot of ground described therein," this statute was construed not to authorize the contractor to sue the owners of the lots. "Ordinary process of law," as to local assessments, was held to mean such process as is adapted to enforce a lien or specific charge upon the property specially assessed.' Bliss, J.: "The sole object then of a local tax being to benefit local property, it should be a charge upon that property only, and not a general one on the owner. The latter, in

1 Bridgeport v. N. Y. & N. H. R. R. Co. 36 Conn. 255; New Haven v. Fair Haven, 38 Conn. 422; Appeal of North Beach R. R. Co. 32 Cal. 499; Parmlee v. Chicago, 60 Ill. 324; Railroad Co. v. Spearman, 12 Iowa, 112.

In re Ward, 52 N. Y. 395. See as to meaning of adjoining, Holmes v. Carley, 31 N. Y. 289.

3 Philadelphia v. Eastwick, 35 Penn. St. 75.

4 State v. Inhabitants of North Bergen, 37 N. J. Law, 402.

5 Terry v. Hartford, 39 Conn. 286.

6 Des Moines v. Dorr, 31 Iowa, 89; Morrison v. Hershire, 32 Iowa, 271. Neenan ". Smith, 50 Mo. 525; overruling St. Louis v. Clemens, 36 Mo. 467; Carlin v. Cavender, 56 Mo. 286; St. Louis v. Brestor, Ib. 350; s. P. Taylor v. Palmer, 31 Cal. 240.