The Montgomery advertiser., 1904-05-13
SUPREME COURT OPINION
 IN MONTGOMERY PAVING CASE

principles declared in the cases of Mitchell. Judge, etc. vs. Florence Dis pensary, 134 Ala. 392: ex parte Mayor and Aldermen of Birmingham, 116 Ala 1S6, and State, ex rel vs. Griffin ct al 132 Ala. AT.
 The other question in this case arises on the provisions of section of the act above quoted. for the assessment of the whole costs of the paving against abutting property. "prorated according to the frontage of such property" and is whether. in view of State and Fed eral Constitutional provisions as to compensation for property taken for public uses and depriving the citizen of property without due process of law it is within legislative competency to thus impose the costs of, street paving and the like upon abutting property without Judicial entertainment of the benefits accruing to such property from such improvements, and apportionment of the costs of the betterments accord ing to and not in excess of the actual benefits enuring from them to the several abutting lots of land. This question has been thrashed over in numerous decisions of the courts, and, while the cases are not uniform upon it. the better view and that supported by the great weight of authority is that 1t is a matter of legls- laiive expediency and for legislative de- termination whether aIbutting urban prop eEty will be benefited to the extent of the costs of a given improvement of the street or sidewalks along it's front, and therefore entirely within legislative com potency to impose such cost, by way of special tax, upon the property abuttlng the improved street. apportionlng the charge thereto according to the distance the several parcels of land front upon the street. The authorities supporting thus view are numerous and include, we be- lieve, all text writers on the subject: "The major part of the cost of a local work" says Judge Cooley. is sometimes collected by general tax. while a smaller portion Is levied upon the estates spe- cially benefited. e.s.
 ''The major part is sometimes assessed on estates benehted. while the general public IS taxed a smaller portion in con sideration of smaller participation in the benefits.
 ''The whole cost in other cases is levied on lands in the immediate vicinity of the work.
 Tn a constitutional point of view, either of these methods is admissible, and one may sometimes be just and an- Ctner at other times. In other cases 1t may be deemed reasonable to make the whole cost a general charge, and levy no special assessment whatever. The question is legislative and, like all leg islative questions, may be decided erro- neously; but 1t is reasonable to expect that with such latitude of choice. the tax will be more just and equal than 1t would be were the legislature required to levy it by one infiexible and arbitrary rule. Cooley on Taxation, AT.
 "The courts are very generally agreed - says Judge Dillon, that the authority 10 require the property specially benefited to bear the expense of local improve ments is a branch of the taxing power, or included within it. Whether the expense of making such improve ments shall be paid out of the general treasury, or be assessed upon the abut- ting property or other property specially benefited. and, If In the latter mode whether the assessment shall be upon all property found to be benefited or alone upon the abutters, according to frontage or according to the area of their lots. is according to the present weight of authority considered to be a question of legislative expediency. ."-2 Dlllons Muni- cipal Corporations Sec. 752.
 These formulations of the doctrine were approved by the United States Supreme Court in French vs. Barber Asphalt Paw ing Co.,. 1S1 U. s. 324. 343, and they are supported by that case and many oth- CTS. some of which are cited on the brief fer appellant.
 Judge Cooley states the same doctrine