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often happens that a different mode is practiced in different cities in the same State. All that can be done is to point out a few of the tems that are or have been in use, in order that the principles governing them may be seen.

In Pennsylvania, where the engineer is vested with power to make the assessment, he is required to give notice for ten days in two newspapers, that the assessment has been filed in his office, where errors can be corrected. After this the treasurer gives notice to each owner of the amount assessed on his property, and if it is not paid in thirty days, the treasurer hands the list to the city solicitor, who files the liens against the property liable, which are enforced in a court of general jurisdiction. In opening streets, three viewers assess the expense. Their report is confirmed by the Court of Sessions, and then becomes a lien on the property assessed. The lien is enforced by a scire facias in some court of general jurisdiction. It is provided by

statute that the lien shall not be divested by any judicial sale, as respects so much thereof as the proceeds of sale may be insufficient to discharge and pay. This municipal lien must first be discharged if there is a sale of the land under any order or decree of a court, and the proceeds of sale are sufficient, and if there are two liens for local assessments, a sale under the junior lien for a sum not sufficient to pay that lien does not divest the prior lien. A provision that the land of minors shall not be sold until two years after the minor becomes of age, while it protects the minor, so that his rights are not divested by a sale under the lien, affords no protection to his cotenants who are adults. The effect of these provisions as to judicial sales, is to protect the purchaser as to the liens for assessment when the proceeds of sale are sufficient to discharge the lien, and not otherwise. But it seems that although protected as to the lien which is discharged, the debt for the improvement still exists, and may, under some circumstances, be enforced against the owner, if not against the property. There was a lien on a lot for introducing water pipes. The lot was sold by the sheriff for arrears of ground rent, and the proceeds, which were sufficient to pay the lien of the assessment, were applied to other liens. The purchaser at the sheriff's sale applied to have water introduced into his premises, which was refused until the lien was paid.

'Hutchinson v. Pittsburg, 72 Penn. St. 320.

Pittsburg v. Cluley, 74 Penn. St. 262.

3 Pittsburg's Appeal, 70 Penn. St. 142; Allegheney City's Appeal, 5 Wright, 60. 4 Philadelphia v. Meager, 67 Penn. St. 345.

Soullier v. Kern, 69 Penn. St. 16.

He paid under protest and brought suit for the amount, and the court held that the lien was discharged, but the debt could only be discharged by payment to those entitled. The defenses under these proceedings to enforce the lien are limited to those that show a want of jurisdiction, and mere errors are not considered.2

In Illinois, prior to 1870, after the assessment was made by the commissioners or assessors, the collector applied to some court of general jurisdiction for judgment and an order for the sale of the lots for the amount assessed, and in this tribunal all questions as to legality of the assessment were settled. Mere questions as to the amount of the assessment, seem to have been determined by a board of assessors or some similar tribunal. When application is made for the order of sale, the party is entitled to a notice which describes the character of the assessment accurately, and a notice for the expenses of a drain will not be good for an assessment for paving. It must also appear that the assessors or commissioners have in all respects complied with the statute authorizing the assessment, whether it relates to the notice or any other requirement of the statute. If the defense is made that the ordinance is void because of a prior assessment, the record must be produced, showing that the first assessment is valid. Since 1870, in Illinois, the collector does not apply for judgment, but all unpaid taxes and assessments are returned to some general officer of the county, and such officer makes sale of the lots assessed under the order or judgment of some court of record.

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In California, the assessment is required to be recorded, and from that time it becomes a lien, and is enforced by a suit in the nature of a suit in rem against the owners and the land. Mere errors are corrected by the board of supervisors of the county, or some similar inferior tribunal. In the suit to enforce the lien, the party is confined to defects in matters which are essential to the validity of the assessment. If the assessment is required to be made either in the name of the owner, or a person unknown, and it is made in neither, the assessment is void, and no appeal to correct such error is necessary."

304.

1 Philadelphia v. Cook, 30 Penn. St. 56; Britton v. Philadelphia, 32 Penn. St. 387. Pittsburg v. Cluley, 74 Penn. St. 262.

Rich v. Chicago, 59 Ill. 786; Hills v. Chicago, 60 Ill. 86; Brown v. Chicago, 62 Ill.

4 Waller v. Chicago, 53 Ill. 88; Dorathy v. Chicago, 53 Ill. 79.

560 Ill. 243, 507; 65 Ill. 189; 56 Ill. 341; 62 Ill. 106; 61 Ill. 352.

Brown v. Chicago, 62 Ill. 106; 60 Ill. 86.

Dougherty v. Hemaine, 47 Cal. 9; Hancock v. Bowman, 49 Cal. 413.

9 Smith v. Cofran, 34 Cal. 314.

Where the resolution of the council to pave and the contract to pave were conditions precedent to an assessment, the council passed a resolution and awarded a contract to pave G. street to C. avenue. After this the contract was changed, and G. street altered so as to make it 200 feet additional to C. avenue. In an action against lots on the original street, it was held that this was an irregularity which could be remedied by appeal, but if the action had been against the lots on the 200 feet, the defect would have been jurisdictional, for as to this part of the street there was no resolution of the council and no contract.1 Where a statute limited the defense to the jurisdiction of the board to order the work and fraud, it was construed only to apply to affirmative defenses, and not to dispense with all material averments necessary to show the validity of the assessment in a suit to enforce the lien. To entitle a party to defend in such proceedings, he must have an interest in the subject-matter similar to that required in foreclosure suits. And so in New York, where the "party aggrieved" may institute an action to vacate an assessment, he must have an interest in the lot assessed. If he is a former owner, who is bound to indemnify his grantee against the assessment, he comes within the rule."

2

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In Massachusetts, the proceeding for abatement of the amount assessed is to apply to the mayor and aldermen, or other board making the assessment, or to file a petition to have the assessment reviewed by a jury. This petition is to be filed within a limited period. The property owners are not entitled to notice until the assessment is made. If they desire to vacate the whole proceedings as to the assessment, the remedy is by certiorari. In opening streets, it may be done either under the general statutes as to highways, or under the betterment acts as they are called, which apply only to cities. If the proceeding is under the general statutes of 1866, the benefits which accrue from the opening of the street are not allowed to be set off against the damages allowed for the land taken. But under the general statutes of 1870, it seems that a certain kind of benefit may be set off. The benefit which the particular lot receives in common. with other lots in the same vicinity, by reason of the increased public facilities and advantages, and the general advance in value of real

'Himmelman v. Hoadley, 44 Cal. 276.

3 Himmelman v. Spanagel, 39 Cal. 389.

4

2 San Francisco v. Eaton, 46 Cal. 100.

In re Phillips, 60 N. Y. 16; In re Burke, 62 N. Y. 228.

Butler v. Worcester, 112 Mass. 541; Gardner v. Boston, 106 Mass. 549; Jones v. Boston, 104 Mass. 461.

6

City of Cambridge v. Co. Com'rs of Middlesex, 117 Mass. 79.

Crandell v. Taunton, 110 Mass. 421.

8 Bancroft v. Boston, 115 Mass. 377.

estate in the vicinity by reason thereof, is not to be set off, while the advantage of more convenient access to the particular lot of land in question, and of having a front upon a more desirable avenue, being direct benefits to that lot, and giving it increased value in itself, may be set off against damages. The distinction is between that which is direct and is special, and that which is indirect and general.1 Under the betterment acts, the benefits are set off against the damages. The assessment of the damage for the land taken, and of the benefit received by those in the vicinity from opening the street, are distinct proceedings made at different times. No notice is, however, given of the assessment for benefits, it follows the taking of the land.

When the assessment is directed to be made on lands abutting on a street, and it is made on lands which do not abut on the street, if the land is sold under proceedings authorized by the statute as to assessments, it conveys no title; the proceedings are void, and the assessors are without jurisdiction.

Lien. The statutes on this subject almost universally make the assessment a lien from a certain period, and prescribe the mode in which it shall be enforced. If a lien is given, and no specific mode of enforcing provided, it may be enforced by a suit in equity as any other lien. The fact that it is created by the statute, instead of by the act of the party, does not affect the remedy. The limitation to enforcing such a lien is fixed by analogy to a mortgage or judgment lien. This was under a statute which declared "that there should be a lien as if mortgaged to the corporation" making the assessment. The period when it commences is fixed by the statute, as in Indiana, where it commences from the time the estimate is made for the work.5 The questions of lien rarely affect the city. It being a lien on the land created by statute, it follows the land into the hands of the purchaser, without reference to the question of notice, and is a burden imposed on the land itself. In some States, as in Pennsylvania, it is provided by statute, that the lien shall be discharged by a judicial sale if the proceeds are sufficient to pay the lien. Such questions chiefly arise between grantor and grantee, or lessor and lessee. A covenant to "pay all taxes and assessments, whether in the nature of a tax now in being or not, which may be payable or assessed in respect to the premises, or any part thereof, during said term," includes an

4

1 Upham v. Worcester, 113 Mass. 97; Alien v. Charlestown, 109 Mass. 243. Godbold & Myrick v. Chelsea, 111 Mass. 294; Prince v. Boston, 111 Mass. 226.

3 Hunnewell v. Charlestown, 106 Mass. 300.

Mayor, &c. of New York v. Colgate, 12 N. Y. 140; McInery v. Reid, 23 Iowa, 410. 'Jones v. Schulmeyer, 39 Ind. 119. Britton . Philadelphia, 32 Penn. St. 387.

assessment for widening a street.1 It is not a material circumstance that the act under which the assessment is made was passed after the deed of lease, if the language of the covenant in the deed is sufficiently broad to include local assessments. But it may well be doubted if the language in the case of Blake v. Baker was sufficient. It was, "pay all taxes and duties levied or to be levied thereon during the term." The only word to indicate an intention to include anything but ordinary taxes is the word "duties," and this can be as well referred to one kind as the other. It is a question of importance in this class of cases to determine when the liability to assessment accrues. In ordinary taxation it accrues on the initial day of assessment, and when the land is assessed it relates back to the initial day, and the same is true of local assessments. A street was opened October, 1869; the board of aldermen determined the amount to be assessed on the 24th of December, 1870; the grantor sold in January, 1870, with covenant against incumbrance. It was held that the liability accrued at the opening of the street in 1869, and that when assessed subsequently the lien related back to that time.3

Sale of Land for Assessments.-When the power is clearly given to sell land for local assessments, then it may be exercised in the same manner, and the same principles apply, as in the sale of lands for other taxes. Every step must be taken in strict accordance with the provisions of the statute giving such authority. But it is to be kept in mind that there is a broad distinction between taxes and local assessments, although both are exercises of the taxing power, and a delegation of authority to a city as to taxes does not apply to local assessments, unless there be express words to that effect, or the implication be one that necessarily results from the context of the statute. The charter of a city gave it authority "to levy and collect special taxes for the improvement of streets and alleys, on adjacent real estate, in such manner as should be provided for by ordinance." Another part of the charter gave it authority to provide for the sale of real estate "for the non-payment of any taxes due thereon." The city provided by ordinance that land should be sold for the non-payment of local assessments for improving its streets. It was held that no

1 Codman v. Johnson, 104 Mass. 491; Walker v. Whiteman, 112 Mass. 187. Curtis v. Pearce, 115 Mass. 186; Blake v. Baker, 115 Mass. 188.

Blackie v. Hudson, 117 Mass. 181. In New York the contrary doctrine is held, that the lien does not attach until the assessment has been made and confirmed. Land was sold in June, 1866, and the deed contained a covenant that it was clear of all taxes, assessments and other incumbrances. An assessment was made and confirmed in October of the same year, which was a lien on the land, but it was held that this subsequent assessment did not constitute a breach of the covenant. Downey et al. v. Mayor, &c. of N. Y. 54 N. Y. 186.