deed, is not what is understood by a local or special assessment, but the very term would confine it to property in the locality; for if the owner be personally liable, it is not only a local assessment, but also a general one as against the owner." If there can be a personal assessment, or the owner can be made personally liable for the tax thus imposed, then we have the remarkable result that for a tax which is imposed on a lot of land, upon the theory that its pecuniary value is increased by the improvement, the lot may be sold, and if there is a deficiency, the owner may be required to pay it; or, in other words, for the benefit conferred on the property, the property may be confiscated, and the owner, for the privilege of having it confiscated, may be required to pay a tax into the treasury of the city. The question as to personal liability has not been discussed in the other States, although it will be found in many of the cases that the statute authorizes a levy upon the goods and chattels of the owners of the lots, and perhaps it may be considered as a tacit recognition of the right, but certainly not an authoritative decision of the question.1

2

Power to Pave a Street.-Does it restrict the local authorities to the use of any particular material in constructing the pavement? It seems not. "It is not confined to regularly arranged masses of solid material, as blocks of wood, brick or stone, but it may be as well formed of pebbles, gravel or other hard substance, which will make a compact, even, hard way or floor." The McAdam road comes within the definition of pavement. The expense of guttering and curbing is included in the authority to pave. But in Pennsylvania, the question whether curbstones, trimming and guttering are included in the ordinary mode of paving was left to the jury.5 The cost of the intersections of the street, which are not opposite the land of any one, can be assessed on the lots on the street, even where the authority was to impose on adjoining property in proportion to the number of front feet. Under the authority to pave a street, it is not necessary that the whole length of the street should be paved,' nor, it seems, the

6

People v. Brooklyn, 4 N. Y. 420; Bennett v. Buffalo, 17 N. Y. 383; Nichols v. Bridgeport, 23 Conn. 196; Creighton v. Scott, 14 Ohio, N. S. 439; Clemens v. Baltimore, 16 Md. 208. The last case was an action of debt for a paving tax, and goes farther in its recognition of the position than the others, but does not discuss the question.

* Burnham v. Chicago, 24 Ill. 496.

3 Warren v. Henley, 31 Iowa, 31; McNamara v. Estes, 22 Iowa, 246; New Haven v. Whitney, 36 Conn. 373. It includes flagging. In re Phillips, 60 N. Y. 16.

O'Leary v. Sloo, 7 La. Ann. 25; Steckert v. East Saginaw, 22 Mich. 104.

5 Schenly . Commonwealth, 36 Penn. St. 29, 57.

Powell v. St. Joseph, 31 Mo. 347; Creighton v. Scott, 14 Ohio, N. S. 438; Williams

v. Detroit, 2 Mich. 560; State v. Elizabeth, 1 Vroom, 365.

Railroad Co. v. Connelly, 10 Ohio St. 159, 163; Creighton . Scott, 14 Ohio, N. S. 438; St. Louis v. Clemens, 36 Mo. 467; Lafayette v. Fowler, 34 Ind. 140.

whole width, and the city may order sidewalks on one side only. Where, under a general law, all property owners in the vicinity, whether on the line of the street or not, were liable for the expense of opening a street, the expense of opening the street a part of its length may be imposed on the property on the street for its whole length.3

§ 149. Assessment, how Made-Effect of Report of Assessors— Objections to, how Made.-The assessment is usually made by a board of commissioners or assessors. These are sometimes designated by the legislature, but generally by the council of the city or town under a general power to make local assessments. Their powers, like those of assessors of State taxes, or taxes for general municipal purposes, are judicial, and a report of such a body fixing the amount to be paid by specified property for the benefit conferred, is conclusive until overruled or reversed by some tribunal vested with the power of reviewing their action. It cannot be attacked collaterally, except for fraud or a want of jurisdiction.*

As to mere errors in the assessment, they can only be corrected by the statutory tribunal provided, or by writ of certiorari to some court of general jurisdiction. In the matter of local assessments, this writ affords the same relief, and for the same class of errors, as in general taxation. But if there is a want of jurisdiction in the assessors, whether it proceed from a want of power in the city to make the assessment, or from a failure on the part of the council or other officers to do some act essential to the exercise of the power of local assessment, then the assessment is void. The assessors in such case are trespassers, and they are liable in damages for any act done by them, and the city may be compelled to refund any moneys paid under such an assessment.

The form in which such questions arise depends on the local laws of the State, and it often happens that in the same State at different periods, and even at the same time, one mode of making defense is practiced as to one city, and another as to another city. In California and other western States, a board of review decides all questions of mere value, and the assessment is enforced by a suit in the nature of

1 Morrison v. Hershire, 32 Iowa, 271.

3 Chestnut Avenue, 68 Penn. St. 81.

? State v. Portage, 12 Wisc. 562.

4 Baltimore v. Hughes, 1 Gill & J. 480; Fort Wayne v. Cody, 43 Ind. 197; Northern Ind. R. R. Co. v. Connelly, 10 Ohio, N. S. 159; Commonwealth v. Woods, 44 Penn. St. 113; Wray v. Pittsburg, 46 Penn. St. 365. Where a board of assessors were required to certify their estimate to the council, the certificate was omitted, but the council, in their resolution, acted on the sum specified by the assessors, it was considered a substantial compliance and valid. Sorchan v. City of Brooklyn, 62 N. Y. 339.

See ante, §§ 102 and 141.

a suit in rem against the owner and the land. In such suit it is necessary to show that every step prescribed by the statute has been taken. In New York an action may be brought to vacate an assessment, and if any essential step required has not been taken, the assessment, as to the party suing, is declared void. And so in Illinois, where a collector is required to have the judgment of a court of general jurisdiction against the land in order to enforce the lien of the

assessment.

Conditions precedent to the Imposition of the Assessment.-One of the ordinary conditions is, that the owners of property on the line of the street to be opened or improved shall give their assent, by a petition to the council of the city or town, asking that the improvement be made. This petition is essential to give the council jurisdiction to act, and without it all their proceedings are void.1 Where the act provided that upon a petition to the council, signed by a majority of the owners of land in the district to be assessed, the council might apply to the Supreme Court to appoint commissioners to assess the benefits of the local improvement, in an action to collect the assessment made under this act, which made no provision as to the mode in which the petition should be proven, it was decided not only that the petition was essential to give jurisdiction, but that it must be established by common-law evidence, by proving who were the owners at the time, and that a majority of them did petition the council as required in the act. If the act provides that the council may act upon the petition, or without a petition, if a majority of the council vote for the improvement, it is construed strictly. The majority required is of all the members of the council, not merely of those present. In Kentucky, where the council is authorized to act on a petition, or on the unanimous vote of the council, it is said that if the order is entered, it will be presumed that the council were unanimous. These decisions in Kentucky are in conflict with the principle, that as to inferior tribunals, jurisdiction is not presumed, but must be established by proof in all collateral proceedings.

1 Henderson v. Baltimore, 8 Md. 352; Bouldin v. Baltimore, 15 Md. 18; Baltimore ». Eschback, 18 Md. 276; Delphi v. Evans, 36 Ind. 90; State v. Orange, 36 N. J. Law, 49; Pittsburg v. Walter, 69 Penn. St. 365.

2 Litchfield . Vernon, 41 N. Y. 123, 136. By the act of 1859, the determination of the council that the conditions have been complied with is made final and conclusive. In re Kiernan, 62 N. Y. 457.

Baker v. Tobin, 40 Ind. 310; La Fayette v. Fowler, 34 Ind. 140; Indianapolis v. Manser, 15 Ind. 112.

4 Lexington v. Headley, 5 Bush, 508; Covington v. Casey, 3 Bush, 698.

Where the council, having power to direct an assessment, pass an ordinance that the work be done on the condition that the majority of property owners select the contractor, the performance of this condition is essential, and a contractor will not be allowed to enforce the lien given by the ordinance for the assessment made under it, without proof of the performance of the condition.1

The Notice required by the statute to be given to the owners of property in reference to the assessment is essential to confer jurisdiction, and it must be given in the mode prescribed in the statute.* Where the statute requires the resolution of the council ordering an improvement and assessment therefor to be published in all the papers employed by the corporation to publish official notices, the notice must be published in all the papers designated for that purpose, and if it be shown that it was not published in any one of the designated papers, the assessment cannot be enforced. Such a provision is a limitation on the powers of the council to make assessments.3 When a paper has been once designated under such an act, it will be presumed that the employment continues until it is shown by evidence that the employment has been revoked. And when the omission to publish is shown as to one branch or board of the council, it is not necessary to give evidence as to the action of the other branch, for the assessment is invalid. The statute requires these resolutions to be published, and enacts that they shall not be adopted until after such publication; and the provision is regarded as mandatory and not merely directory. The provision of the act under which these actions to vacate assessments were made, limited the party aggrieved to fraud or substantial error. The former statute was for fraud or legal irregularity. The want of publication of the notice was thought to be more than mere irregularity, it was substantial error. Where the statute requires the resolution to be published "at least two days" before adoption, a publication one time two days before adoption was considered good. But where an assessment is made under the act of 1813 for opening streets, although the provision of the charter of 1857 as to publication may apply, yet, as under that act the report of the commissioners of estimate was required to be confirmed by the

Reilly . Philadelphia, 60 Penn. St. 467; distinguished from City v. Wistar, 11 Casey, 427; City v. Burgen, 14 Wright (50 Penn. St.) 539.

2 Risley v. St. Louis, 34 Mo. 404; Heeves v. Reiss, 40 Cal. 255; Himmelman v. Oliver 34 Cal. 246; Ottawa v. Railroad Co. 25 Ill. 43.

3 In re Douglas, 46 N. Y. 42; in re Astor, 50 N. Y. 363.

4 In re Phillips, 60 N. Y. 16.

6 In re Anderson, 60 N. Y. 16, 343, 457.

5 In re Little, 60 N. Y. 343.

"In re Bradford, 50 N. Y. 509.

Supreme Court, such confirmation is conclusive as to all questions which might have been litigated at that time. That court acquired jurisdiction by the application of the commissioners of estimate, and its judgment can only be attacked for fraud or other circumstances which affect an ordinary judgment.1 Since 1872, no assessment in New York is to be vacated for any irregularity save in case of fraud.2

A notice required to be published for ten days, means ten secular days, and does not include Sundays; but when a certificate of the publisher, which is made evidence of the publication, states that the notice was published ten days, it will be presumed that it was ten secular days. Where the statute making the certificate of the publisher evidence requires it to state the number of times of publication, and also to state the first and last days of the publication, a certificate "that the notice was published six times, Sundays and holidays excepted, beginning on the 24th day of September, 1869," was considered defective; it must state the first and last days of publication, so that the court can determine whether there has been a publication for six secular days. Under this statute a person is not a publisher or printer who may give the certificate, who was not the publisher or printer of the newspaper, until after the completion of the publication of the notice."

5

Where the statute requires an estimate of the whole expense of the improvement, showing the number of cubic feet to be filled or excavated, to be filed in the clerk's office, and then a notice of two weeks before the contract is made for the improvement, the estimate must first be filed before the notice is given, or the assessment will be void. So where the statute required the Croton board to devise a general plan of sewerage and drainage for the whole city, to divide. the city into as many districts as were necessary, and adopt a plan for the drainage of each district, the adoption of a plan was a condition precedent to any contract for sewerage, or any assessment for the expense thereof; but the provision that copies of the map and plan shall be filed in the offices of the common council, the comptroller,

1 Dolan v. Mayor, 62 N. Y. 472; in re John Jacob Astor, 62 N. Y. 580. Under the act of 1870, it is only necessary to publish the resolutions of the council in one newspaper. In re Conway, 62 N. Y. 504.

262 N. Y. 580, 585; in re Delancy, 52 N. Y. 81.

3 Scammon v. Chicago, 40 Ill. 146.

4 Jenks v. Chicago, 48 Ill. 296.

Beygeh v. Chicago, 65 Ill. 189; Butler v. Chicago, 56 Ill. 341; Brown v. Chicago, 62 Ill. 106.

Armstrong v. Chicago, 61 Ill. 352. A notice for repaving a street is not good for paving the street. State v. Jersey City, 3 Dutch. 538.