In O'Reilley v. Kingston, 114 N. Y. 439, 21 N. E. 1004, the action was brought to set aside and adjudge void an assessment made on lands of the plaintiff for paving a certain avenue in defendant city. Objection was made to the assessment on the ground that it was apportioned among the owners of the lots fronting upon the avenue in proportion to the frontage of each lot; some of the lots being vacant and others occupied by valuable buildings. By the city charter the land to be assessed was that bordering on or touching the street improved, and it was the duty of the assessors to determine the benefits derived by the owners of such land. It was held that in thus determining the benefits the assessors acted judicially, and that their judgment could not be reviewed unless they acted upon an erroneous principle in making the assessments; that the conclusion reached by them that the tax should be apportioned among the owners of the real estate border wooden buildings worth from $12,000 to | provement, in proportion to the benefit to be $15,000." It will be observed that on the received by each lot or parcel thereof." One face of the bill the only allegation which ground for setting aside the assessment made can be claimed as directly charging fraud | was “that in every case the assessment is is a conclusion drawn from the facts stated in proportion to the number of lineal feet respecting the uniform assessment per front fronting on the avenue." The court said foot of the several abutting properties in that on the evidence "it may well be an view of the alleged differences among them equal benefit to every landowner upon the in size, depth, improvements by way of line of the street," and refused to set them buildings, and value. The question, then, is: aside. See, also, Dooling v. Ocean City, 67 Do equal assessments per front foot for spe- N. J. Law, 215, 50 Atl. 621; People v. Mayor, cial benefits received, when such differences | 63 N. Y. 291. are, by the board making the assessments, known to exist, show that they must necessarily be unjust and unequal, and amount to that which a court of equity holds to be fraud? In Beaumont v. Wilkes-Barre, 142 Pa. 198, 21 Atl. 888, it was held that the fact that the abutting lots differ somewhat in depth and value does not of itself render the assessment void because of inequality. See, also, Terry v. Hartford, 39 Conn. 286. In Witman v. Reading, 169 Pa. 375, 32 Atl. 576, the assessment per front foot along the line of a sewer for benefits was in question. The court below held the assessment illegal, basing it mainly if not exclusively on the difference in value per front foot of the several properties. In reversing the judgment the court of last resort said properties in the same general situation are presumed to get the same general benefit from a common improvement, and as this benefit is assessed on property abutting on the line of the improvement, it is presumed to be fair-ing on the street according to the number of ly measured by the foot frontage on that line, though values may be and usually are very different, and dependent on other circumstances, such as depth of the lots, the buildings erected thereon, the use to which they are put, and their proximity to business centers; that value undoubtedly is one element to be considered but not controlling. In Peters v. Newark, 31 N. J. Law, 360, one objection to the assessment for benefits re-improvements in extending a certain street ceived by opening a new street was, that adjudged void, and its collection restrained. the commissioners adopted an erroneous The assessors in finally determining the principle in estimating all the property as- amount to be assessed for the benefits upon sessed, as if it were unimproved, whereas each of the pieces of land assessed fixed the some of it was, in fact, improved by having amounts without regard to the value of the valuable buildings thereon. The court said buildings or other improvements on the reit was not satisfied that in this the com- spective parcels, for the reason that they demissioners were wrong; that the advantage termined that the amount of benefits was not an owner of property acquires by the open-affected by the improvements. On the plaining of a new street in a city must be mainly tiff's land and some other of the lands asif not wholly the advanced value of the sessed there were buildings, while other lots land; that the buildings on it would cost within the assessment were vacant. The asvery nearly or quite the same without assessors did not fail to consider the improvewith the improvements; and that the action ments on the lands, determined that the of the commissioners in this regard was be-amount of benefits was not affected thereby, lieved to have been in accordance with the and assessed the several lots without regard common practice in like cases, which in it- to the buildings thereon. The assessment on self was no slight reason for supposing it to the plaintiff's land was found to be disprobe correct. In State v. Passaic, 37 N. J. portionately large. It was held that the asLaw, 65, the city charter required the com-sessors in thus making their estimate of the missioners to assess the cost of improve- benefits did not proceed in violation of any feet front owned by each individual was not necessarily an erroneous principle, if it was the assessors' judgment that each owner was benefited in that proportion, and, on the other hand, it might be the most just and equitable of any that could be adopted. In Hoffeld v. Buffalo, 130 N. Y. 387, 29 N. E. 747, the plaintiff sought in equity to have an assessment of his land for benefits received by way of with the views upon which the case of O'Reilley v. Kingston was determined; that, so far as appeared, the excess in the assessment on plaintiff's property might have been the result of mere error in judgment of the assessors; and that the assessment did not seem to have been illegal in the sense requisite to the support of an action for relief against it. In Hagar v. Reclamation Dist., 111 U. S. 701, 4 Sup. Ct. 663, 28 L. Ed. 569, it is said: "The expense of such work may be charged against parties specially benefited and be made a lien upon their property. All that is required in such cases is that the charges shall be apportioned in some just and reasonable mode, according to the benefit received. Absolute equality in imposing them may not be reached. Only an approximation to it may be attainable. If no direct and insidious discrimination in favor of certain persons to the prejudice of others be made, it is not a valid objection to the mode pursued that to some extent inequalities may arise." See, also, Allen v. Drew and Seattle v. Kelleher, before cited. Without further reference to decided cases on this question, sure it is that the statement of facts contained in the bill upon which the orators rely as showing fraud in the making of the assessment do not in law carry such an inference, and consequently they do not warrant the characterization there given to the acts of the commissioners in this behalf. Special benefits are such peculiar bene fits as the owner of land receives from local (81 Vt. 545) LAZELLE et al. v. CITY OF BARRE CONSTITUTIONAL LAW (§ 290*)-DUE PROCESS Laws 1906, p. 265, No. 256, providing that when a city council decides that an improvefor the public good and convenience and nement of a street already made, when made, was cessity of individuals, it may order an assessment on notice for special benefits from the improvement, is not objectionable because leaving the jurisdictional facts to the final determination of the council; no property being taken nor assessment made or necessitated. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 871; Dec. Dig. § 290.*] Appeal in Chancery, Washington County; Alfred A. Hall, Chancellor. Suit by W. E. Lazelle and others against the City of Barre. From a judgment overruling a demurrer to the bill, defendant appeals. Reversed and remanded, with directions to dismiss. Argued before ROWELL, C. J., and TYLER, MUNSON, and WATSON, JJ. J. Ward Carver and John W. Gordon, for appellant. Hoar, Martin & Sargent, for appellees. ROWELL, C. J. This is a bill in chan cery to enjoin the enforcement of certain assessments on abutting property made in 1907 for street improvements made in 1903. The bill is demurred to. The improvements improvements over and above the ordinary were unauthorized when made and paid for by the city, because the city council delegatbenefits which he receives as one of the com-ed the street commissioners to find the necmunity. The averred differences among the abutting properties were, with the other circumstances, matters for consideration by the commissioners in imposing the tax, and the fact that a uniform sum per front foot was imposed against several of the owners of frontage, and against other such owners no imposition was made, does not in itself show a failure by the commissioners to comply with the resolution from which they derived their authority to act, nor that approximate equality was not attained. It is unnecessary to consider when or under what circumstances equity will grant re lief against such assessments on the ground of fraud. Suffice it that from the facts alleged fraud will not be inferred, and we cannot say that substantial justice was not done. The question of misjoinder of the orators is also presented, but not considered. The disposition made of the other questions leaves the bill without anything upon which to stand. Decree reversed, demurrer sustained, bill adjudged insufficient, and cause remanded, with directions that the bill be dismissed with costs to the defendant in this court. Let the costs below be there determined. essary jurisdictional facts instead of finding them itself, as the charter required. Blanchard v. City of Barre, 77 Vt. 420, 60 Atl. 970. But the bill alleges that the charter was amended by No. 256, p. 265, Acts 1906, which provided that if at any time within six years prior to the passage of the act any street, lane, or alley in the city or any portion of any such street, lane, or alley had been drained, graded, paved, or macadamized, curbed, and guttered, or any such improvements had been made, and the city council should, by resolution duly passed, decide that such improvements when made were for the public good and convenience and necessity of individuals, it might order and direct the street commissioners to assess not to exceed one-half of the total cost and expense of such improvements upon all the lands and buildings abutting upon or adjacent to the street, lane, or alley, or part thereof that had been improv. ed as therein specified within six years prior to the passage of the act, and in the same manner according to special benefits per front footage as is therein provided for assessments on petition in writing to the council, signed by the owner or owners of twothirds of the frontage of any street, lane, or alley in the city, or on a resolution duly passed by the council, to make any improve ments of like nature, as therein specified. and in disregard of the fact that some of the abutting property is much more improved than the orators' by way of buildings erected thereon and some of the lots contain two or three times the square feet contained in the lands of the respective orators, and that the lands and buildings of the orators were assessed on the basis of a mathematical calculation at a uniform sum per front foot. The bill further alleges that on February 8, 1907, the council, without notice to the orators, or giving them an opportunity to be heard, acting under said amendment, which gave no right of appeal, resolved and decided that said improvements were for the public good and the convenience and necessity of individuals, and that the public It is objected that said amendment is ungood and the convenience and necessity of in- constitutional and void, for that it impairs dividuals required the same to be made as the obligation of contracts and takes away they were made; and that thereupon and vested rights, attempts to take property withthereby the council ordered and directed the out due process of law, and leaves to the street commissioners, on due notice of the final determination of the city council the time and place of hearing as provided by question of jurisdictional facts, although it said amendment, to assess not to exceed one- makes that a judicial question. But none of half of the total cost and expense of said these objections are tenable. In Durkee v. improvements upon all lands and buildings City of Barre (just decided) 71 Atl. 819, in abutting upon and adjacent to that portion which the validity of this amendment was of the street that had been improved as stat- called in question in these very respects, it ed in the resolution within six years prior is held that no principle of contract was into the passage of said amendment, according volved between the city and the owners of to the special benefit per front footage that lands assessed for improving another part had accrued from said improvements to the of this same street, and that legislative powlands and buildings abutting upon and ad-er was legitimately exercised in authorizing jacent to said portion of said street; and special assessments for benefits inuring to that the street commissioners were also abutting property from local improvements thereby directed to make up a statement of already made. As to due process of law, all assessments of said improvements, par- it is held in that case that that constitutional ticularly describing the lands and the build-provision has no application, for no land ings assessed upon due notice and hearing of was taken nor sought to be taken, but that the abutters, and cause the same to be re- the proceedings were wholly in the exercise corded in the city clerk's office. of the right of taxation, and that the steps taken up to and including the finding by the city council respecting the public character and the convenience and necessity of the improvements of 1903 involved no assessment of property nor any question of special benefits to abutting landowners, and that, therefore, notice to such landowners was not required by due process of law. As to leaving the jurisdictional facts to the final determination of the city council, that may well be done, for here also no property is taken nor assessment made or necessitated. For answer to the objections to the validity of the assessment in question, we refer to the Durkee Case, where the subject is fully considered, and the assessment there, which was essentially like the assessment here, held valid. And for answer to the claim of fraud on the part of the street commission. ers reference is also made to that case, in which the allegations of fraud were essentially the same as here, and were held insufficient to show fraud. The bill then goes on to allege that the street commissioners, acting under the instructions contained in said resolution of the council, on notice to the orators, held a meeting on April 8, 1907, for hearing all parties who had been notified, on the question of what portion of the expense of draining, grading, paving, curbing, and guttering the part of Main street in question should be assessed on abutting land and buildings according to special benefits and frontage, and that subsequently said commissioners found and adjudged that each foot of frontage of the lands and buildings of the orators was specially benefited to the extent of $2.99694, and thereupon assessed said land and buildings at that sum for each front foot, and this is the assessment complained of. But the specific grounds of complaint alleged need not be stated. It is sufficient to summarize them as they are in the orators' brief, namely, that the assessment was made according to frontage without reference to the special benefits to the different properties and the amount each owner was specially benefited, and without regard to the great difference in value of the property assessed as belonging to the respective orators, Pro forma decree reversed, demurrer sustained, bili adjudged insufficient, and cause remanded with mandate to dismiss the bill with costs in this court, and with or without costs below as may be there determined. . (82 Vt. 5) Argued before ROWELL, C. J., and TYCITY OF BURLINGTON v. CENTRAL VER- LER, MUNSON, and WATSON, JJ. MONT RY. CO. et al. (Supreme Court of Vermont. Jan. 16, 1909.) J. H. Macomber, City Atty., and R. E. General Term. Brown, for plaintiff. C. W. Witters and H. H. Powers, for defendants. 1. MUNICIPAL CORPORATIONS (§ 54*) POSE OF CREATION. Cities and towns are created to perform such governmental functions as the state may, for convenience, devolve upon them. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 142; Dec. Dig. 8 54.*] 2. WHARVES (§ 5*)-POWERS-CONSTRUCTION OF WHARVES. The state, in the absence of constitutional inhibition, can build or aid others in building wharves for public use and in aid of trade or commerce. [Ed. Note. For other cases, see Wharves, Dec. Dig. § 5.*] 3. CONSTITUTIONAL LAW (§ 50*)-LEGISLATURE -POWERS. The Legislature's power is practically absolute, except for constitutional limitations. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 48, 49; Dec. Dig. § 50.*] 4. MUNICIPAL CORPORATIONS (§ 70*)-CONSTRUCTION OF WHARVES. The state can authorize cities and towns bordering on navigable waters to build, maintain, and operate public wharves. [Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. § 70.*] 5. CONSTITUTIONAL LAW (§ 68*)-POWERS OF GOVERNMENT-TAXATION. Bill of Rights, art. 9, prohibiting the raising of a tax unless the purpose of the tax appears to the Legislature to be of more service to the community than the money would be if not collected, means that the purpose must be a public one; but what is a public purpose within that meaning is a question for the Legislature, as to which it has a large discretion, which courts can control only, if at all, in very exceptional cases. ROWELL, C. J. This is an appeal from proceedings by the city of Burlington to acquire by the right of eminent domain certain lands and premises on the shore of Lake Champlain belonging to the defendants, for the purpose of a public wharf. The proceedings are under No. 262, p. 356, Acts of 1906, which purports to authorize the city, as the convenience of the inhabitants and the public good may require, to construct and mainlimits of said city, or in the waters of said tain upon the shores of said lake within the keep the approaches thereof at all times in lake adjacent thereto, a public wharf, and to a proper and safe condition for the landing, loading, and unloading of boats and vessels, subject to the Constitution of the United States and the laws made in pursuance thereof regulating commerce, and to the admiralty jurisdiction of the federal courts. For the purpose aforesaid, the act further purports to authorize the city by its council, among other ways, to acquire and take necessary for such purpose, and provides by the right of eminent domain any lands that, when the council has occasion to exercise that right, it shall appoint a time for examining the premises and hearing the parties interested, and give them reasonable notice of the time when and the place where it will consider the question of public convenience and necessity of its proposed action, and the claims of the respective parties for damages; and that, if after such examination and hearing the council adjudges that the convenience of the inhabitants and the public good require a public wharf and the The provisions of Acts 1906, p. 356, No. taking of land therefor, it shall so award, 262, authorizing the city of Burlington to con- and shall also award each party owning or struct and maintain a public wharf and to bor-interested in property so taken and used the row money for the purpose are valid. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 125-127; Dec. Dig. § 68.*] 6. MUNICIPAL CORPORATIONS (§ 274*)-STAT UTES. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 729; Dec. Dig. § 274.*] 7. CONSTITUTIONAL LAW (§ 281*)-DUE PROCESS-EMINENT DOMAIN. Acts 1906, p. 356, No. 262, authorizing the city of Burlington to condemn land for a public wharf; authorizing the city council to determine the question of public convenience and necessity of its proposed action, and to award damages for the property taken; and allowing an appeal by any person dissatisfied with the award -is not unconstitutional as denying due process of law, though defendants had to institute the proceedings for appeal at their own expense. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. § 880; Dec. Dig. § 281.*] Exceptions from Chittenden County Court; Seneca Haseltine, Judge. Condemnation proceedings by the City of Burlington against the Central Vermont Railway Company and others. From a judgment refusing to dismiss the proceedings, defendants bring exceptions. Affirmed and remanded. amount of damages to which it adjudges him entitled, and cause its award to be filed in the office of the city clerk, and recorded in the land records thereof. The act further provides that any person dissatisfied with the award of the council may appeal therefrom to the county court of the county for a rehearing as to the necessity and convenience of the proposed action of the council, and the taking of land or other property therefor, and the damages had in said court as are provided by law awarded, and that such proceedings shall be for the assessment of damages for land taken for highways; but that nothing in the proceedings shall prevent the council from entering upon such lands and constructing and maintaining such wharf after its award is made, and the amount thereof tendered as provided, when the appeal is upon the question of damages only. Before any action is taken by the council under the act, a meeting of the voters is to the construction of railroads and to levy be called, to see if the city will vote to pro- taxes for that purpose, they are acting in cure, by construction or otherwise, and main- that behalf merely as the agents or aptain, a public wharf in accordance with the pointees of the state, exercising a power of act; and if it does so vote, then the council taxation conferred upon them by the stateis to carry the vote into effect, and may bor- a power which, in the very nature of things, row money therefor on the credit of the city. could not be delegated by a depositary not The defendants moved to dismiss the pro- having it. It is further said that if such ceedings, for that, among other things not works are so far of public benefit and adnow insisted upon, the city has no lawful vantage that the state, in answering the ends right to build, maintain, and operate a pub- for which it exists, can provide them as inlic wharf, and become a public wharfinger; strumentalities for promoting the prosperity and for that said act is invalid and void be- and the development of the resources of its cause it purports to confer upon the city the people, it may commission any of its municiprimary right to determine the necessity for palities to aid them when they are thought such wharf, the extent of the taking, and to be of special local benefit to them; that the damages to the landowners, and conse- to deny this because the license empowers quently is not due process of law. the municipality to go outside the purpose First, as to the right of the city. The de- of its creation would be to deny that the fendants concede that a municipality may state may adopt proper means for promoting be authorized by law to construct and op- the prosperity of its people; that power in erate a private wharf; that it may provide towns to grant aid to railroads exists by legany proper facilities for loading and unload-islative grant; that power in the Legislature ing goods, like coal for its schools, public buildings, etc., as an individual might do; but say that to enter upon any public business is foreign to the purpose for which it was created; that municipalities are created and organized for certain governmental ends that meet the demands of their inhabitants in their everyday life, but not for the purpose of undertaking a public business whereby they enter into competition with the world at large, and incur liabilities and earn revenue like individuals; that, if the city of Burlington can take on the character of a public wharfinger, it can build and operate a line of steamboats, and become a common carrier, or build and operate a railroad, or, in short, assume any public character outside the primary purpose of its charter, and wholly foreign to the purpose of its organization. to grant comes from the people, who, by establishing government, have appointed a trustee to administer the trust of making available to them all the prosperity and growth that sovereign states may rightfully aspire to; and that thus the people have consented in advance that this power may be exercised. But under article 9 of our Bill of Rights, no law can be made to raise a tax unless the purpose for which it is raised appears evident to the Legislature to be of more service to the community than the money would be if not collected. This means that the purpose for which the tax is raised must be a public purpose. But what is a public purpose within that meaning is a question for the Legislature to decide, and concerning which it has a large discretion, which the courts can control only, if at all, in very exceptional cases; and this is not such a case. Cooley, Const. Lim. (6th Ed.) 153. These principles are applicable and controlling here, and therefore it must be held that the act in question, if otherwise valid, confers upon the city the authority claimed. But it cannot be said that the construction of public wharves by cities and towns bordering on navigable waters is beyond, and wholly foreign to, the purposes for which they are created; for all cities and towns are created for the purpose of performing such governmental functions as the state may for Second, as to the validity of the act in reconvenience devolve upon them. It cannot be spect of the manner of taking. The defenddoubted that the state itself, in the absence ants claim that it is invalid in this regard, of constitutional inhibition, can build, or aid for that it makes the city a judge in its own others in building, wharves for public use case, and does not afford the landowners inand in aid of trade and commerce; and it is terested that due process of law guaranteed equally clear that, whatever the state can by the Constitution; that it confers upon do in this behalf, it can delegate to a mu- the city the right to determine the necessity nicipality to do, with proper limits, for the for taking the land, the extent of the taking, law is, by all the cases, that, except where and the damages to be paid therefor, with no there are constitutional limits upon the Leg- right of appeal from its action, and compels islature, it is practically absolute. Cooley, the party injured to institute original proConst. Lim. (6th Ed.) 200 et seq. This doc- ceedings at his own expense to obtain relief; trine has often been announced by this that the hearing provided for in the act is court, and was acted upon in Bennington v. not before a disinterested tribunal, and that Park, 50 Vt. 178, where it was held that the the landowner is never entitled thereunder to Legislature could authorize a town to bond a disinterested tribunal until he institutes itself to aid in the building of a railroad out | original proceedings; and that this burden of the state. It is there said that, if towns confronts him from the first question to the |