ment district. It was the duty of that board to include within the limits of the assessment district all parcels of land which, in its judgment, fairly exercised, would be benefited.

In the case of these last-named assessments, the board of public works entirely disregarded this provision of the new charter, and levied the assessments, as theretofore, upon the property fronting the improvement only; and it in no way appears that the board considered the matter, or determined, in the exercise of its judgment, that no other property would be benefited. So wide a departure from the rule of the statute cannot be without important effect upon the validity of the assessment. An aзsessment, under this statute, which does not distribute the burden fairly upon all 444 the property benefited by the improvement, cannot be just and equal. While mere errors of judgment do not invalidate it, it must appear to be a fair attempt at compliance with the statute. As suggested by Ryan, C. J., in Johnson v. Milwaukee, 40 Wis. 315, the court may and should require an apparent exercise of the judgment and conscience of the board of public works, in an apparently fair and just assessment, in conformity with the directions of the statute. An intentional omission from the assessment of property benefited must necessarily make the assessment unequal and unjust: Weeks v. Milwaukee, 10 Wis. 242, 264. These assessments were made in entire disregard of the statute, and are presumed to be unequal, and that the inequality is sufficient to justify the interference of a court of equity: Hassan v. Rochester, 67 N. Y. 528, 536, 537; In re New York etc. School, 75 N. Y. 324. And because the defects go to the very foundation of the assessment and make it necessarily unequal, the plaintiff is not required to pay his proportion of the assessment as a condition of relief: Hassan v. Rochester, 67 N. Y. 528; Marsh v. Clark Co., 42 Wis. 502; Meggett v. Eau Claire, 81 Wis. 326.

In the cases of the Belknap avenue improvement and the grading of Grand avenue, the common council issued and sold improvement bonds upon the assessments. This it is authorized by the charter, sections 131, 132, to do as soon as the amount of benefits chargeable to the real estate has been "finally deternined" and the contract for doing the work has been let, after giving thirty days' notice, by publication in a newspaper, of its intention to issue such bonds; and to collect it from the property assessed, by installments, as special taxes: Charter, sec. 136. The charter, section 137, also provides that "no action shall be maintained to avoid any of the special assessments of [or?] taxes levied pursuant to the same," after such improvement bonds

have been issued; and that "said bonds shall be conclusive proof of the regularity 445 of all proceedings upon which the same are based." The right to question the validity of these assessments and bonds in this action is denied, upon the authority of these provisions of the charter. So the question is presented whether the right of the owner to contest the validity of these assessments can be lawfully taken away by so short a limitation, by a statute which provides for no actual notice.

The assessments of benefits must be finally complete before the contract for doing the work can be let: Charter, sec. 127. The contract may be let after publication of notice for bids for one week. After the contract has been let, the improvement bonds may be issued after thirty days' notice by publication in a newspaper. No actual notice is provided for, and the bonds may be issued before the work has commenced. So that, if the statute is sustained as a valid limitation, its bar may be complete within forty days after the assessment is finally determined, and regardless of the fact whether the owner has acquired actual knowledge of the proceedings against his property.

These are proceedings whereby property is to be taken in invitum. No man's property can be lawfully taken or taxed but by due and regular process of law; nor forfeited except by his own omission seasonably to assert his right. It has been already demonstrated that these assessment proceedings are not due process of law, and are invalid to deprive the plaintiff of his property. So the plaintiff's property has not been effectually taken by these proceedings, unless the plaintiff has debarred himself from contesting the validity of the proceedings by his own laches; and this depends upon the validity of this statute as a statute of limitations.

All statutes of limitation proceed upon the theory that the party has forfeited his right to assert his title in the law by lapse of time and omission to assert it. This necessarily presupposes that a full and fair opportunity has been afforded 446 him to try his right in the courts; for it cannot justly be considered that he is in default and laches until such just opportunity has been. afforded him and he has failed to avail himself of it. Any attempt to cut off his right without having afforded him such just and reasonable opportunity is not, properly, a statute of limitations at all. It savors rather of spoliation and plunder: Cooley's Constitutional Limitations, 6th ed., 449. No doubt, under a statute which provides for actual notice to the owner, a shorter limitation could be held reasonable than where constructive notice only is provided. Under this statute, many an owner may,

without fault, be without actual knowledge of the pendency of proceedings against his property, until the bar of this statute has foreclosed his right; and this may all well happen before any work, such as might arrest the attention of resident owners, is actually commenced under the contract. It is not questioned that all the proceedings relating to the assessment may be supported on notice by publication only; but the fact that the notice provided for is constructive only is an element proper to be considered in determining whether the time limited affords reasonable opportunity for the owner to assert his right. No doubt such time should be allowed as would give a reasonable chance to acquire actual knowledge of the pendency of proceedings against his property, and to ascertain and assert his rights. No absolute rule can be laid down as to what length of time will be deemed reasonable for the government of all cases alike. Different circumstances require different rules. What would be reasonable in one class of cases would be entirely unreasonable in another: Wheeler v. Jackson, 137 U. S. 245, 255. While it is, no doubt, convenient and desirable, on the part of the municipality, that all questions in respect to the validity of such proceedings shall be put at rest as soon as may be, still there is no such exigency as to justify even an apparently unfair abbreviation of the rights of property owners or undue advantage 447 taken. The time allowed should be ample to afford a reasonable probability that he would become informed of the proceedings against his property, and be fairly able to assert his right, before it is finally barred. It is considered that, plainly, this statute does not afford such reasonable opportunity, and cannot be sustained as a valid limitation. A short statute of limitations is not an allowable substitute for due process of law. It is utterly subversive of that constitutional protection to private rights of property. The fact that such short limitations have been sustained by some courts does not persuade the court. that they are just and supportable on principle.

But it is said the plaintiff's remedy is limited to an appeal from the assessment. It is true that an appeal is given to the owner who feels aggrieved by the determination of the board of public works; but this appeal does not stay the progress of the work if the contract has been let, nor the issuing of the certificate against the lot for the benefit assessed; and, in case the appellant succeeds on his appeal, the only remedy given him is, that "the difference between the amount charged in the certificate so issued and the amount adjudged to be paid as benefits. accruing to the real estate described in the certificate shall be

paid by the city out of the general fund": Charter, sec. 125. It is also declared that the appeal so given "shall be the only remedy of the owner of any parcel of land . . . . for the redress of any grievance he may have by reason of the making of such improvement": Charter, sec. 126. It is obvious that, upon this appeal, only the proper amount of benefits to the particular lot can be investigated. No remedy appropriate to any other wrong is given. It furnishes no remedy by which to avoid an unequal and void assessment. Clearly, the appeal is no adequate remedy for the lotowner in this case; and it will not be presumed that the legislature intended the appeal given to be the exclusive remedy, except as to matters which can be redressed upon the appeal: Pier v. Fond du Lac, 38 Wis. 470.

448

The Columbian Fair stone tax was altogether unauthorized and void.

It was error to limit the amount of costs to be recovered to

thirty dollars. The court had exhausted its powers over the matter of the costs when it had determined that the plaintiff should recover them. The law determines their amount: Rev. Stats., sec. 2918, subd. 7; Rev. Stats., sec. 2921; In re Carroll's Will, 53 Wis. 228.

The judgment should be reversed on both appeals. On payment of the sum of four hundred and twenty-one dollars, the taxes for general fund hereby held valid, and the sum of four thousand four hundred and ninety-seven dollars and thirty cents, for taxes and assessments conceded by both parties to be valid-in all, the sum of four thousand nine hundred and sixtyeight dollars and thirty cents, with legal interest, that is, with interest at the rate of seven per cent per annum up to March 27, 1893, and six per cent per annum thereafter up to the time of payment (Pierce v. Schutt, 20 Wis. 423; State v. Guenther, 87 Wis. 675), the tax certificate and the several special assessments hereby declared void, and the tax for the Columbian Fair, should be vacated and set aside.

By the Court. The judgment of the circuit court is reversed on both appeals, and the cause remanded, with directions to render a judgment in accordance with this opinion.

Marshall, J., took no part.

A motion by the respondents for a rehearing on the plaintiff's appeal was denied March 10, 1896.

TAXES.-AN INJUNCTION will not issue to restrain the collection of taxes merely because of illegality or irregularity appearing upon the face of the assessment, but the complainant will be left to his

remedy at law: Hibernian Ben. Soc. v. Kelly, 28 Or., 173; 52 Am. St. Rep. 769. See, also, the extended notes to Williams v. County Court, 53 Am. Rep. 110, White v. Stender, 49 Am. Rep. 287, and Holland v. Mayor, 69 Am. Dec. 189.

ASSESSMENTS BY FRONTAGE are discussed in the case of Violett v. Alexandria, 92 Va. 561; ante, p. 825 and note. See, also, the extended notes to People v. Mayor, 55 Am. Dec. 288. The cost of grading a street should be distributed among the lotowners on a square by imposing upon each his aliquot portion of the whole cost, estimated according to the extent of his lot on the street: Louisville v. Hyatt, 2 B. Mon. 177; 36 Am. Dec. 594. An assessment for street grading may be made upon each frontage foot equally: Schenley v. Commonwealth, 36 Pa. St. 29; 78 Am. Dec. 359, and note at page 370.

TAXES-PUBLIC CELEBRATIONS.-A municipal corporation cannot, unless authorized by the legislature, raise money by taxa. tion for the purpose of celebrating great historical events: Extended note to Zigler v. Menges, 16 Am. St. Rep. 371.

ASSESSMENTS-NECESSITY FOR NOTICE-DUE PROCESS OF LAW.—That notice must be given a property owner and an opportunity to appear and contest the same, where his property is assessed for a local improvement, is discussed in Violett v. Alexandria, 92 Va. 561; ante p. 825, and note.

KIEL V. CHOATE.

[92 WISCONSIN, 517.]

NEGOTIABLE INSTRUMENTS.-AS BETWEEN TWO INDORSERS, whose names appear on the back of a promissory note, parol evidence is admissible to prove their agreement that each should be liable for one-half only.

Action by J. N. Kell against Choate and Bray for contribution, it being claimed by the plaintiff that while a certain promissory note had been executed in his favor, and had been by him indorsed in blank, and under his indorsement had been placed that of the defendants, such note and indorsements had been made for the accommodation of other persons, under a parol agreement between the two indorsers that, as to themselves, each should be liable for one-half only. The whole evidence to this effect was objected to in the trial court, but the objection was overruled, the evidence received, and judgment rendered thereon in favor of the plaintiff. The defendants appealed.

Hooper & Hooper, for the appellants.

Eaton & Weed, for the respondents.

518 NEWMAN, J. It was settled for this court by Cady v. Shepard, 12 Wis. 639, that, where a note is indorsed by a payee and a third party, the legal inference from the instrument itself that the payee is the first indorser may be explained by oral evidence of the facts and circumstances under which the in