The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1899-06-28


and Quincy Railroad Company vs. City
Of Chicago 1de ~. s. 226, and Long
Island Water supply Company VS. City
of Brooklyn, 16B u. s. $50
/. Ins@the said case of Village Of Nor
wood. supra; the power of the munich
pality te1aesees private property is
deliberately dtscsissed.f In sthe course
OF the opinion, delivered by Justice
Harlem. IS is, said; "a pduubtedly abut-
ting owpers may be subjected to spe-
cial assessments to meet the expenses
Of opening public highways in front OF
their property such assessments, ac-
cording to we'll established principles,
resting upon the ground that special
burdens may be imposed for special or
peculiar benefits accruing from public
mprovements-Mobi Co. VS.. Kimbafl.
1O2 u. S. 691 and according to
| the weight of judicial authority, the
Legislature has a large discretion in
defining the territory to be deemed spe-
cially benefited by public improve
n1ent and which may be subjected to a
special assessment to meet the cost of
such Improvement $50 But the
power of the Legislature in these mat
tiers Is not unlimited. There is a point
beyond which the legislative depart
! ment, even when exerting the power
I of taxation, may not go consistently
with the citizens right of property. As
already Indicated, the principle under
lying 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 any
thing in excess of what they receive
by reason of such Improvement. But
the guarantees for the protection of
private property would be seriously
impaired, If it were established as a
rule of constitutional law that the i'm
position by the Legislature upon par
ticular private property of the entire
cost of a. public improvement irrespec-
tive of any peculiar benefits accruing
to the owner from such improvement,
| could~not be questioned by him in the
courts Of the country. 1t is one thing
for the Legislature to prescribe it as a
general rule that property abutting on
| street opened by the public shall be
deemed to have been specially benefited
by such improvement, and therefore
should specially contribute to the cost
incurred by the public 1t is quite a
different thing to lay it down as an alb
aolute rule that such property whether
| it is in fact benefited or not by the
opening of the street, may be assessed
| by the front foot for fixed sum rep
resenting the whole cost of the i'm
provement, and without any right in
the property owner to show, when an
assessment of that kind is made, or
is about to be made, that the sum so
fixed is in excess of the benefits re-
j ceived- In our judgment, the exaction
from the owner of private property of
the cost of a public improvement in
substantial excess of the special bene-
fits accruing to. him is to the extent
/ of such excess. ae taking under the
guise of taxation of private property
for public use without compensation. -
The particular public Improvement
considered by the Supreme Court does
! not differentiate that case from the one
at bar The same principles are ap-
plieable and the same doctrine may be
invoked Under the Act in contro-
versy here the Legislature has attempt
ed to impose upon particular private
property the entire cost of a public i'm
provement Irrespective of any peculiar
benefits accruing to the owner from
such improvement without giving him
the right to question it in the courts
| of the country" An absolute rule is
prescribed by the Legislature that pri-
vate property whether it is in fact
benefited or not by a public improve
ment may be assessed by the front
! foot for fixed sum to pay the cost
! of said public Improvement without at
/ fording the property owner an oppor-
/ tunity to show that the sum fixed is in
excess of the benefits received This
I is opposed to the guarantees of the
/ Constitution as interpreted by the
highest judicial tribunal in the world
Justice Harlan cites numerous au-
therities and quotes from adjudget
cases in support of his conclusions
is made from Cooley on Taxation:
While general levy of taxes rests
upon the ground that the citizen may
! be required to make contribution IN
that mode in return for the general
benefits of government, special assess
ments are a peculiar species of taxa.
] ton and are made upon the assump.
! ton that a portion of the community
! is to be specially and peculiarly bene-
flied in the enhancement of the value
of the property peculiarly situated as
regards a contemplated expenditure Of
public funds; and in addition 10 the
! general levy, they demand that specia,
/ contributions in consideration of the
special benefit shall be made by thu
persons receiving it. There
/ can be no justification for any proceed
ing which charges the land with ar
assessment greater than the benefits
1t is plain case Of appropriattng pri-
vate property to public uses without
compensation"
The United States Supreme Court af-
| firmed the judgment of the Circuit
j Court upon the ground that the as.
sessment against the plaintiffs abut-
ting property was under a rule which
excluded any inquiry as to special ben.
efits and the necessary operation of
which was, to the extent of the excess
Of the cost Of opening the street in cues.
ton over any special benefits accruins
to the abutting property therefrom, tc
take private property for public use
! without compensation.
Justice Brewer in his dissenting opin.
ion reaches the conclusion that accord
ing to the views of the majority of the
court "a legislative act charging the
cost of an improvement in laying out a
| street (and the same rule obtains If il
was the grading, macadaTnizing or paw
ing the street) upon the property abut-
ting thereon is adjudged not only not
conclusive that S1lch abllttinc proport =