The Montgomery advertiser., 1904-05-13

preme Court of Michigan in 1881: "wt might i'll pages with the names oi cases decided in other States which nave sustained assessments for i'm proving streets though the apportion- ment Of cost was made on this same pases taccording to frontage) as the one before us. If anything can be re- garded as settled In municipal law IT tnis country, the power of the Legis- iature to permit such assessments and uirect an apportionment of the cost by frontage. should by this time be con. sidered as no longer open to contro versy. Writers on constitutional law on municipal law and on the law of taxation have collected the cases. and IT the question were new in this State we might think 1t important to refer 70 what they say. But the question is not new; 1t was settled for us thirty years ago. Shelley V. Detroit. 45 Mich. 431. Sec. 3s7.
 This author further says: The ap- portionment of the cost of public inn provement by a definite rule, as by frontage or area in the taxing district has been held necessarily to exclude evidence of the want of special bene- nts in the enforcement of assessments upon the property, as the legislative determination in ordering the assess ment upon that basis presumptively in- wolves the finding that the property is benefited to the extent of the assess ment. This conciusiveness of the leg fslative, decision in the formation of taxing districts sis said, therefore to rest upon the presumption that the Legislature proceeds upon investiga- tion and inquiry, and decides what the public good requires; that it only creates a taxing district and charges the expense of a public improvement upon 1t when satisfied that the property therein will be specially benefited by the improvement. The courts, in sus- taining this doctrine of legislative con- clusiveness. recognize that its real basis Is the impracticability of making any satisfactory judicial apportionment of the benefits from such Improvements as between the abutting property and the general public. In the language of the Supreme Court of North Dakota: How could the courts ever determine what part should be paid out of the general treasury and what part raised by local assessment? What rule would govern them in Investigating such a question? And what right have they to dictate where the line shall be drawn?"
 This court put itself in harmony with the doctrine of the foregoing texts and decisions in the case of Mayor and AL dermen of Birmingham V. Klein, 89 Ala. 561, decided in 1889; and has so re- mained, if we leave out of view some wabbling in dicta superinduced by what three of the Judges of the Su- preme Court of tho United States yet believe was the effect of that courts decision in the case of Norwood V. Ba ker, 172 U. s. 2es.
 Tr hal ~A etc. V. Klein. this court sustained as constitutional and valid enact ment a statute which authorized the corporate authorities of Birmingham to grade and pave the sidewalks along the streets of the city. and to assess the total cost thereof, although it might be greatly in excess of the val ue of the benefits to abutting property It Is true that this cost was to be as- sessed on this property 'in proportion to the amount of the benefit accruing to the" property owners; but this only meant that there should be some rule of apportionment, of the whole charge having reference to the benefit receiv- ed by the respective owners and not that no owner should be charged in excess of actual benefits received. The provision would have been fully com piled with through an apportionmcnt according to frontage on the sidewalk of the respective abutting lots, and so the act was construed in the opin- ion.
 In the case of City Council of Mont gomery V. Birdsong. 12s Ala. 632. 1t was decided that the charter of Mont gomery giving power to the city to impose cost of street improvement up on abutting property provided for the assessment against each parcel of land in proportion to and not in ex- cess of the actual benefit accruing to each parcel It was assumer rather than decided that such rule of assess ment was essential to the validity of the act. and this upon the notion that such was the effect of the decision in Norwood V. Baker. supra: and some thing was said in the course of the opinion to the effect that the supposed holding in that case, that such cost could not be laid against abutttrg lots irrespective of the actual benefit to each lot, appeared to be "conscnant with reason and authority" This as- sumption and this dictum were the product of what is now said by the Supreme Court of the United States to be a misconception of the Norwood- Baker case for 1t has since been de- cided by the court that 1t is entirely competent TOT the Legislature or a State to lay the cost of street paving and the like against abutting property, and to apportion the charge according to the frontage of each lot on the street. and it was said that tie de- cision in Norwood V. Baker should be confined to the particular facts o6 the case, and that so considered, that case was not inconsistent with the gene al doctrine that the cost of street im- provements may be laid wholly upon abutting property by frontage. - French V. Barber Asphalt Paving Co.,. 1S1 L. S. 324. Nothing was decided in the Birdsong case inconsistent with the prevailing doctrine as to legisla- tive competency in this connection, and we feel less constraint toward following the assumption and dictum indulged in that case for the reason that their indulgence is referable to a natural misconception of the Norwood- Baker case. if 1t were a misconception or If not, then to a case-Norwood v Baker-which has since been qualified so far as 1t originally bore upon the question now before us. The subso- auent case of City Council of Mont gomery V. Foster, 133 Ala. 5S7. but fol- lowed the Birdsong case in the con struction of the charter of Montgom- cry. and nothing is therein decided or said which is opposed to the well cs- tablished general doctrine of legisla- tive competency to enact laws such as the statute involved in this case. We are thoroughly satisfied of the ab- stract soundness of that doctrine. and