efits, and hence the law is not in violation of Const. U. S. Amend. 14, as being a taking of property without due process of law.

3. Sess. Laws 1898, p. 150, authorizes a common council to make street improvements, and provides that each lot within the limits of the improvement abutting on the street shall be liable for the cost of half the street in front thereof. An elevated roadway, ranging from 10 to 15 feet in height, was built on a certain street, and the costs thereof taxed to the abutting lot owners, in accordance with the law; the tax varying according to the height of the roadway in front of each lot. Held, that the assessment against the lots was as nearly proportional according to the benefits as could be devised, and was therefore valid.

Appeal from circuit court, Multnomah county; John B. Cleland, Judge.

Application for an injunction by A. N. King and others against the city of Portland and others. From a decree in favor of defendants, plaintiffs appeal. Affirmed.

This is a suit to enjoin the enforcement of a local assessment for a street improvement, consisting of an elevated roadway extending along East Yamhill street, between East Water street and Union avenue, in the city of Portland. The charter provisions bearing upon the present controversy (Sess. Laws 1898, p. 150) are, in substance, as follows: Sections 126 and 127 authorize the improvement. Section 128 requires that, before any improvement is made, the common council shall pass a resolution declaring its intention to make it, and describing the same, which resolution shall be posted in the office of the auditor and published for 10 consecutive days in a daily newspaper of the city, and that the city engineer shall cause to be posted a notice at each end of the line of the contemplated improvement, which shall state the fact of the adoption of the resolution, its date, the character of the improvement proposed, and the time within which written objection or remonstrance may be made thereto. Section 129 provides that within 10 days after the official publication of notice the owners of more than one-half of the abutting property may file with the auditor written objection or remonstrance, which shall be a bar to further proceedings unless the owners of one-half or more of such property shall subsequently petition therefor. Section 130: That, if no such objection or remonstrance be filed, the council shall be deemed to have acquired jurisdiction to order the improvement to be made, and shall, within four months from the date of the final publication of the resolution of intention, declare by ordinance the time and manner of said improvement. Section 131: That the auditor shall immediately transmit a copy thereof to the board of public works and the city engineer, and said board shall include, as a part of the costs of such improvement, the cost of advertisement, etc. Section 132: That said board shall without delay cause the engineer to prepare and file estimates and specifications of the amount of such work or improvement, and thereupon

give five days' notice, and invite proposals for doing the work. Section 133: That said board shall, at the time set, examine the proposals and let the work. Section 136: That the auditor shall make the assessment and apportionment of the expenses of said improvement, in the mode and manner provided by section 138. Section 137: That whenever any improvement, the expense of which is to be assessed against the property benefited thereby, has been completed in whole or in such proportion as shall enable the said board to determine the cost of the whole thereof, the city engineer shall file a written acceptance of the work so completed. Thereupon the board shall publish a notice of such completion and acceptance for six consecutive insertions in the official newspaper, stating the time and place where written objections to the acceptance of the improvement may be heard. At the time fixed, any owner or agent may appear and file objections to such improvement, which shall be heard and determined by the board; and, if it appear that the said improvement has not been completed in accordance with the specifications and contract, it shall not be approved until so completed. When approved, the board shall indorse the same upon the acceptance of the engineer, and file a copy with the auditor, together with the contract and the estimated expenses of advertising, etc. Section 138: That the auditor shall thereupon prepare an assessment to cover the entire cost of such work or improvement, and apportion the same to the property affected thereby within the limits of such work or improvement, as declared by the ordinance authorizing the same, in the manner following: "Each lot or part thereof within the limits of a proposed street improvement abut. ting upon the street shall be liable for the full cost of making the same upon half of the street in front of and abutting upon it, and also for a proportionate share of the cost of improving the intersections of two of the streets bounding the block in which such lot or part thereof is situated. * * The cost of improving the intersection of streets, unless otherwise ordered by the council, shall be assessed upon the lots or parts thereof situated in the quarters of the four regular blocks adjoining such intersections, but only upon the lots or parts thereof within the quarter blocks nearest thereto and in the following proportion: Five ninths of the cost to the corner or first fifty feet; and four ninths of the cost to the lot next inside or the next fifty feet as laid out on the recorded plats." Section 139: That when the probable cost of the improvement has been ascertained, and the proportionate share assessed to each lot, the common council, must declare the same by ordinance, and direct the auditor to enter a statement in the docket of city liens. Sections 140, 141, and 142 provide for a docket of city liens and the entry of the assessment therein, but that the same shall

not be collected until by order of the common council; that 10 days' notice shall be given of the entry; and that if, within 30 days from the first publication of such notice the sum assessed is not wholly paid, the council shall thereafter order the issuance of a warrant to enforce the collection of the same. Section 158: That "the proceedings authorized by this chapter for the establishment or alteration of a grade or the improvement of a street or any part thereof may be taken or had without giving notice prescribed in section 128, whenever the owner or owners of two thirds of the adjacent property shall, in writing, petition the council therefor. And whenever any street or part thereof shall be in such condition as to become impassable, unsafe or dangerous to persons or teams passing on, along or over the same the council may declare the same by resolution, and may thereupon cause the improvement of such street to be made, upon giving ten days' notice by publication in any paper of said city, and no remonstrance shall be heard thereto." The decree of the court below being in favor of the defendants, the plaintiffs appeal.

M. L. Pipes, for appellants. J. M. Long, for respondents.

WOLVERTON, J. (after stating the facts). Several objections are interposed, directed against the legality of the assessment. The first is that the charter provisions under which it was made do not provide for an apportionment of the burden under a uniform rule, such as is required by the constitution. There is much discussion in the books as to whether an assessment for local improvements is a tax or not, but, whatever may be the true doctrine, it must be conceded that the authority to make such an assessment is necessarily lodged in the taxing power. This has been held so often that the controversy must be regarded as closed. Irrigation Dist. v. Bradley, 164 U. S. 112, 176, 17 Sup. Ct. 56, 41 L. Ed. 369. Apportionment of the burden is, however, essential, though it need not be made upon property in proportion to its value. Mr. Cooley says: "But, whatever may be the basis of the taxation, the requirement that it shall be uniform is universal. It applies as much to these local assessments as to any other species of taxes. The difference is only in the character of the uniformity, and in the basis on which it is established." Cooley, Const. Lim. (6th Ed.) 615. Mr. Justice Earl, in Stuart v. Palmer, 74 N. Y. 183, states the proposition as follows: "It is not disputed that the legislature has unlimited power, except as restrained by the federal constitution to impose taxes and assessments for public purposes. It may impose taxes upon all property within the state, and in such cases the owners are supposed to receive a compensation for the burdens thus imposed, in the protection and benefits of the government under which they live. It may

impose taxes upon the local divisions of the state for the purposes of local government, and all the citizens residing in the locality must bear the burdens, as they all receive the benefits of the local government. It may cause or authorize local improvements to be made, and authorize the expense thereof to be assessed upon the land benefited thereby. But in all cases there must be apportionment of the burdens, either among all the property owners of the state, or of the local division of the state, or the property owners specially benefited by the improvements. In either case, if one is required to pay more than his share, he receives no corresponding benefit for the excess, and that may properly be styled extortion or confiscation. A tax or assessment upon property, arbitrarily imposed, without reference to some system of just apportionment, could not be upheld."

This brings us to the rule of apportionment, and in this connection may be considered the second objection, which is that the mode and manner of assessment for street improvements adopted and prescribed by the legislature through the city charter do not take into consideration the benefits, or limit or apportion the assessment by and in accordance with the benefits received, and therefore that the charter is in violation of the fifth and fourteenth amendments to the national constitution, which inhibit the taking of private property for public use, and without due process of law. Our state constitution has similar provisions (article 1, 88 10, 18), so that, if the rule is in violation of one, it is also in conflict with the other. The case has been presented, however, by the allegations of the complaint and at the argument, with special reference to the federal question; and we will treat it more particularly in that light, for, if the legislative act prescribing the manner and mode of assessment is void under the national constitution, within the doctrine of the supreme judicial court of the United States, then we are precluded, as it is. the final arbiter in the premises. It is asserted with substantial unanimity and great clearness by the courts in this country, as well as by text writers of erudition and learning, that, unless the nature of the case precludes it, the power to determine the confines of a taxing district for any particular burden is purely one of legislative discretion, and that the question of benefits accruing by reason of improvements contemplated is regarded as one of fact, which the legislature is always presumed to have considered and settled by the enactment. Mr. Justice Finch, in Spencer v. Merchant, 100 N. Y. 585, 3 N. E. 682,-a case involving the validity of an act whereby certain real property, situated in a prescribed district, which had not theretofore paid an assessment for a local improvement under an act declared to be void, was required to pay a sum of money then ascertained,-says: "The act of 1881 [the one in question] determines absolutely

reason.

*

and conclusively the amount of tax to be raised, and the property to be assessed, and upon which it is to be apportioned. Each of these things was within the power of the legislature, whose action cannot be reviewed in the courts upon the ground that it acted unjustly or without appropriate and adequate ** The legislature may commit the ascertainment of the sum to be raised and of the benefited district to commissioners, but is not bound to do so, and may settle both questions for itself; and when it does so its action is necessarily conclusive and beyond review." This case went to the supreme court of the United States (s. c., 125 U. S. 345, 8 Sup. Ct. 921, 31 L. Ed. 763), and the doctrine thus promulgated was there directly approved and affirmed, in the following language (Mr. Justice Gray speaking for the court): "In the absence of any more specific constitutional restriction than the general prohibition against taking property without due process of law, the legislature of the state, having the power to fix the sum necessary to be levied for the expense of a public improvement, and to order it to be assessed, either, like other taxes, upon property generally, or only upon the lands benefited by the improvement, is authorized to determine both the amount of the whole tax, and the class of lands which will receive the benefit, and should therefore bear the burden, although it may, if it sees fit, commit the ascertainment of either or both of these facts to the judgment of the commissioners." So, in Irrigation Dist. v. Bradley, supra, the court say: "The legislature, when it fixes the district itself, is supposed to have made proper inquiry, and to have finally and conclusively determined the fact of benefits to the land included in the district, and the citizen has no constitutional right to any other or further hearing upon that question." In further support of the doctrine, see Cooley, Tax'n (2d Ed.) 640; King v. City of Portland, 2 Or. 146; Lent v. Tillson, 140 U. S. 316, 11 Sup. Ct. 825, 35 L. Ed. 419; Williams v. Eggleston, 170 U. S. 304, 18 Sup. Ct. 617, 42 L. Ed. 1047; People v. Mayor, etc., of Brooklyn, 4 N. Y. 419; Litchfield v. Vernon, 41 N. Y. 123. As has been indicated by some of the foregoing references to the authorities, the legislature may, instead of fixing and prescribing the taxing district itself, refer the matter to commissioners or local boards or bodies for their ascertainment and determination; and in such case the substituted bodies possess and exercise legislative functions, and their action must be deemed as conclusive upon the subject as if the legislature had exercised the authority directly. Cooley, Tax'n (2d Ed.) 640. The doctrine is laid down in Williams v. Eggleston, supra, as follows: "Neither can it be doubted that, if the state constitution does not prohibit, the legislature, speaking generally, may create a new taxing district, determine what territory shall belong to such district and what

property shall be considered as benefited by a proposed improvement. And in so doing it is not compelled to give notice to the parties resident within the territory, or permit a hearing before itself, one of its committees, or any other tribunal, as to the question whether the property so included within the taxing district is in fact benefited." See, also, Spencer v. Merchant, supra; Dickson v. City of Racine, 61 Wis. 545, 21 N. W. 620. The question of apportionment between the owners when the authority is delegated is quite a different thing. In such case the commissioners or body to which the duty is intrusted act quasi judicially, and there must be notice and an opportunity to be heard before the owner can be finally precluded and his property subjected to the payment of the assessment. Sears v. Commissioners, 173 Mass. 350, 355, 53 N. E. 876, and authorities there cited. See, also, 2 Dill. Mun. Corp. (4th Ed.) § 802a.

The manner of notice and the specific period of time in the proceedings when he may be heard are not very material, so that reasonable opportunity is afforded before he has been deprived of his property, or the lien thereon is irrevocably fixed. So it has been held that it is sufficient if the party is accorded the right of appeal or to be heard upon an application for abatement (see Towns v. Klamath Co., 33 Or. 225, 53 Pac. 604; Weed v. City of Boston, 172 Mass. 28, 51 N. E. 204, 42 L. R. A. 642), or the assessment is to be enforced by a suit to which he is to be made a party (Hagar v. Reclamation Dist., 111 U. S. 701, 4 Sup. Ct. 663, 28 L. Ed. 569; Walston v. Nevin, 128 U. S. 578, 9 Sup. Ct. 192, 32 L. Ed. 544), or the right of injunction against collection is accorded, by which the validity of the assessment may be judicially determined (McMillen v. Anderson, 95 U. S. 37, 24 L. Ed. 335). In such case he cannot be heard to complain that his property is being taken without due process of law. The case of Paulsen v. City of Portland, 149 U. S. 30, 13 Sup. Ct. 750, 37 L. Ed. 637, covers the question of the right to notice and a hearing quite fully; and it is significant that special reference is made to the 10-days notice required to be given under section 104 of the charter as it then stood, after the assessment had gone upon the docket of city liens, and before collection can be proceeded with, which is almost the exact provision now contained in section 141. While the court at the time declined to decide that such a notice was sufficient, yet, if the cause had been dependent upon it alone, it is not altogether clear that it would have held it insufficient. So it was held by this court, in conformity with the prevailing rule, that, if provision is made for notice to and hearing of each proprietor at some stage of the proceeding upon the question of what proportion of the tax shall be assessed upon his land, there is not a taking without due

process of law. Wilson v. City of Salem, 24 Or. 504, 34 Pac. 9, 691.

The principle upon which is based the authority to take money as a tax for public use is that the taxpayer receives, or is supposed to receive, a just remuneration, in the protection which the government affords to life, liberty, and property, and in the increase in the value of possessions which comes from the use to which the money raised by the tax is applied. Cooley, Const. Lim. (6th Ed.) 613. Local or special assessments for local improvements stand upon a different basis. They are made and sustained upon the assumption that a prescribed portion of the community is to be especially benefited, in the enhancement of the value of the property peculiarly situated, as regards the proposed expenditure of the funds to be raised by the assessment. It is but a demand of simple justice that special contributions in consideration of special benefits should be made by those receiving the benefits, but such contributions ought not, by the same demand of justice, to be enforced in any case beyond the benefits received. Cooley, Tax'n (2d Ed.) 606. Such an assessment is not in conflict with the provision of our state constitution requiring that "all taxation shall be equal and uniform." Article 1, § 32; King v. City of Portland, supra. It must be conceded, therefore, as was said by Mr. Justice Harlan in Norwood v. Baker, 172 U. S. 269, 279, 19 Sup. Ct. 187, 43 L. Ed. 443, that "the exaction from the owner of private property of the cost of a public improvement in substantial excess of the special benefits accruing to him is, to the extent of such excess, a taking, under the guise of taxation, of private property for public use, without compensation." The eminent jurist used the words "substantial excess" advisedly, because, as he explains, "exact equality in taxation is not always attainable, and for that reason the excess of cost over special benefits, unless it be of a material character, ought not to be regarded by a court of equity when its aid is invoked to restrain the enforcement of a special assessment." Judicial authority, were it necessary, is not lacking elsewhere in support of the doctrine. "The whole theory of local taxation or assessment," say the supreme court of Missouri in McCormack V. Patchin, 53 Mo. 33, "is that the improvements for which they are levied afford a remuneration in the way of benefits. A law which would attempt to make one person or given number of persons, under the guise of local assessments, pay a general revenue for the public at large, would not be an exercise of the taxing power, but an act of confiscation." So, in State v. Mayor, etc., of Hoboken, 36 N. J. Law, 291, it was held that, to the extent of the excess of an assessment above benefits accruing by reason thereof, it was a taking of private property for public use without compensation, be

cause that received by the owner was not equal to that taken from him. And again, in Dexter v. City of Boston (Mass.) 57 N. E. 379 (a recent case), the court say: "It is now settled law in this court, as it is in the supreme court of the United States and in many other courts, that after the construction of a public improvement a local assessment for the cost of it cannot be laid upon real estate in substantial excess of the benefit received by the property. Such assessments must be founded on the benefits, and be proportional to the benefits,"-citing the Norwood Case, and, among others, Sears v. Commissioners, supra, wherein the court say that "it is well established that taxation of this kind is permissible under the constitution of this commonwealth and under the constitution of the United States only when founded upon special and peculiar benefits to the property from the expenditure on account of which the tax is laid, and then only to an amount not exceeding such special and peculiar benefits." This marks the boundary, beyond which it is not within the power of the legislature to go, even in the determination of benefits as applied to a prescribed district. When, however, it is plainly and palpably manifest from the surroundings (that is, from the physical condition of the property involved, its locality, the character of the work or improvement, the assessment, and from the very nature of things) that such an assessment is not adapted to the purpose, and is requiring of the owner a contribution to which he should not be subjected in that capacity, the court will interfere to prevent a consummation of the injustice.

But we are more concerned with the manner of apportionment as between owners within the assessment district. In this, as in prescribing the district, the legislature has a discretion commensurate with the broad domain of legislative power. 2 Dill. Mun. Corp. (4th Ed.) § 761, subd. 4. The mode which the legislature has prescribed is, in substance, that the cost of the half street in front shall be assessed upon the abutting lot or part of lot, and that the cost of street intersections shall be assessed five-ninths upon the corner lot, and the remainder upon the adjacent lot in the quarter block. The rule is invariable, and, when the cost of the improvement in front or at an intersection is ascertained, it must be assessed upon the property; and no discretion, legislative or judicial, abides with the municipal autborities to modify or abate it in the slightest measure. The method is perhaps the least justifiable, as a general rule, of any that has been devised, but that does not signify that it is not proper in any case. The Norwood Case would seem, at first thought, to forbid the application under all conditions of the front-foot rule, but it was probably not intended that it should be so far-reaching in its significance. As applied to that case, and all similar cases, it must be