The Montgomery advertiser., 1904-05-13

in his work on Constitutional Limita- tions. p. 507: "It has been held equally competent for the legislature to make tho street the taxing district and assess the expense of Improvements upon the lots ia proportion to frontage. Here also Is apport1onment by a rule which approxi
 mates to what is just, but which, like any other rule that can be applied. is only an approximation to absolute equity But if in the opinion of the legislature 1t is a proper rulo to apply in a given case the court must enforce It."
 MT. Beach in his work on Public Cor porations, states the doctrine as fol- lows: Section 1072. It is well settled that the power to make a public improve ment on the part of municipal corpo- ration and to impose the burden of the same upon the owners of property bene- fted thereby Is one which the legislature may confer upon such corporations as a part of the taxing power belonging to the State This power of taxation and of apportioning taxation. or of assigning to each individual his share of the burth- en. Is vested exclusively in the legisla- ture, unless the power is limited or re- strained by some constitutional provision The power of taxing and the power of apportioning taxation are identical and inseparabe. Taxes cannot be levied without apportionment; and the power of apportionment Is therefore unlimited. un- less 1t be restrained as a part of the power of taxation. There is not gem erally in our States any restraint upon It. It is competent for the legislature to ap- portion the tax generally upon all tax able persons within It's jurisdiction, or within a certain district or local divis- ion; or 1t may apportion the tax accord ing to the benefit which each tax payer is supposed to receive from the object on which the tax is expended. Whether or not one mode or the other is the more equitable, the legislature is the sole and exclusive judge. It is wholly a matter of legislative discretion which method shall be adopted. and it is not at all a matter for judicial inquisition or review. Special assessments proceed upon the principle that certain property. peculiarly situated in reference to an imrovement Is to be specially benefited in the enhancement of its value, and in levying such assessments the principle of equality in their appor- tionment Is deemed vital, as in ordinary cases of taxation under the constitution"
 And again: Section 1175: Where land is to be taken for a public use the Legislature is the exclusive judge of the amount of land and of the estate therein which the public end to b9 subserved requires to be taken. It IS, therefore, competent for the Legisla- ture to authorize a municipal corpora ton to condemn the title in fee-simple of land for public streets. But the title which the corporation acquires i'd such case is what may be termed a 'aualified or terminable fee" for street purposes only. and which 1t holds not as proprietor, but as an agency of the State in trust for the public for street purposes. and which 1t can neither sell nor devote to a private use. It was urged in a case where the fee simple in land had been condemned for street purposes, that as assessments for bene
 fits could only be made for local inn provements, and as 1t was only neces- sary to take an easement in land for street purposes therefore. the taking the fee was not for a local improve ment; consequently, if taken, no as- easements could be levied to pay for 1t. To this the Supreme Court of Minne- sota said: The Legislature having authorized, as it might, the condemna- ton of the fee for the purpose of open ing or widening a street. which is a local improvement payment for the land taken in fee for that purpose IS as much a part of the cost of the im- proyement as would have been payment for an easement had that been the in- terest taken.
 Judson on Taxation has a luminous treatise on this subject. in line with the texts we have quoted, and fully sustaining not only legislative compe- tency to assess the cost of street and other like improvements against abut- ting property, apportioning 1t by frontage, but the practical expediency and general fairness, and the conclu- siveness of such assessment. Section 355, ct seq. We quote one or two pas sages: While few States still insist that the apportionment must be made