that it will inconvenience the plaintiff and other property owners, and make their property less valuable, because of the inconvenience in getting to and from the traveled roadway; that will be of no benefit to the plaintiff, and damage him $100. The sustaining of a demurrer to the complaint for want of facts is the only error assigned.

Counsel, in the introduction of their respective briefs, epigrammatically state the principal issue in this court thus: "Is the 'Barrett Law law?" "The "Barrett Law' is law." "The 'Barrett Law' is not law."

We will not stop now to inquire whether the demurrer to the complaint should have been overruled for a minor cause, since the appellant, as indicated by his argument, has based his appeal principally upon the question of the statute's constitutionality, and for the present the complaint will be taken as admitting that the city intends to proceed in accordance with the provisions of the statute. Appellant's contention is that the statute, in violation of the federal and state constitutions, provides for the taking of property without just compensation, and without due process of law. Two propositions are involved: (1) Is the method of assessing the whole cost of a street improvement upon the abuting property equally by the frontage, irrespective of accruing benefits and damages, constitutional? (2) Is that the method required by the Barrett law?

Many of the courts of this country have answered the first question in the affirmative. Cooley, Tax'n (2d Ed.; 1886) p. 644, says: "In many instances, where streets were to be opened or improved, sewers constructed, water pipes laid, or other improvements entered upon, the benefits of which might be expected to diffuse themselves along the line of the improvement in a degree bearing some proportion to the frontage, the legislature has deemed it right and proper to take the line of frontage as the most practicable and reasonable measure of probable benefits, and, making that the standard, to apportion the benefits accordingly. Such a measure of apportionment seems, at first blush, to be perfectly arbitrary, and likely to operate in some cases with great injustice; but it cannot be denied that, in the case of some improvements, frontage is a very reasonable measure of benefits,-much more just than value could be, and perhaps approaching equality, as nearly as any estimate of benefits made by the judgment of men. However this may be,

the authorities are well united in the conclusion that frontage may lawfully be made the basis of apportionment."

In his treatise on Municipal Corporations, published in 1890, Dillon gives an extended review of the subject, and notes that the courts are very generally agreed that the authority to require property specially benefited to bear the expense of local improvements is embraced within the taxing power, and that a statute authorizing municipal au

thorities to make such improvements, and assess the cost in proportion to the frontage, in the absence of some special constitutional restriction, is a valid exercise of the power of taxation, and, according to the weight of authority, is considered to be a question of legislative expediency. Dill. Mun. Corp. (4th Ed.) §§ 752-761. And, as upholding the doctrine of the majority, the author notes (section 760) that the supreme court of the United States holds that state laws imposing upon property, according to legislative discretion, the cost of local improvements, do not deprive the owner of his property without due process of law, within the meaning of the fourteenth amendment. Davidson v. New Orleans (1877) 96 U. S. 97, 104, 24 L. Ed. 616; Mobile Co. v. Kimball (1880) 102 U. S. 691, 26 L. Ed. 238; Hagar v. Reclamation Dist. (1883) 111 U. S. 701, 4 Sup. Ct. 663, 28 L. Ed. 569; Wurtz v. Hoagland (1884) 114 U. S. 606, 5 Sup. Ct. 1086, 29 L. Ed. 229; Walston v. Nevin (1888) 128 U. S. 578, 9 Sup. Ct. 192, 32 L. Ed. 544. To which may be added Spencer v. Merchant (1887) 125 U. S. 345, 8 Sup. Ct. 921, 31 L. Ed. 763; Williams v. Eggleston (1898) 170 U. S. 304, 311, 18 Sup. Ct. 617, 42 L. Ed. 1047; Parsons v. District of Columbia (1898) 170 U. S. 45, 18 Sup. Ct. 521, 42 L. Ed. 943. The author, however, after considering many cases pro and con, and summing up the general principles underlying special assessments in his eighth conclusion (section 761), affirms what he conceives to be the only true rule upon principle, as follows: "Whether it is competent for the legislature to declare that no part of the expense of a local improvement of a public nature shall be borne by a general tax, and that the whole of it shall be assessed upon the abutting property and other property in the vicinity of the improvement. thus for itself conclusively determining, not only that such property is specially benefited, but that it is thus benefited to the extent of the cost of the improvement, and then to provide for the apportionment of the amount by an estimate to be made by designated boards of officers, or by frontage or superficial area, is a question upon which the courts are not agreed. Almost all of the earlier cases asserted that the legislative discretion in the apportionment of public burdens extended this far, and such legislation is still upheld in most of the states. But since the period when express provisions have been made in many of the state constitutions, requiring uniformity and equality of taxation, several courts of great respectability, either by force of this requirement or in the spirit of it, and perceiving that special benefits actually received by each parcel of contributing property was the only principle upon which such assessments can justly rest, and that any other rule is unequal, oppressive, and arbitrary, have denied the unlimited scope of legislative discretion and power, and asserted what must, upon principle, be regarded as the just and reasonable doctrine, that the cost of a

local improvement can be assessed upon particular property only to the extent that it is specially and peculiarly benefited, and, since the excess beyond that is a benefit to the municipality at large, it must be borne by the general treasury."

Among the many cases cited by the author in support of his conclusion is Tide-Water Co. v. Coster, 18 N. J. Eq. 518, where it is said, on page 527: "Where lands are improved by legislative action, on the ground of public utility, the cost of such improvement, it has been frequently held, may, to a certain degree, be imposed on the parties who, in consequence of owning lands in the vicinity of such improvement, receive a peculiar advantage. By the operation of such a system, it is not considered that the property of the individual, or any part of it, is taken from him for the public use, because he is compensated in the enchanced value of such property. But it is clear this principle is only applicable when the benefit is commensurate to the burthen; when that which is received by the landowner is equal or superior in value to the sum exacted; for, if the sum exacted be in excess, then to that extent, most incontestably, private property is assumed by the public. Nor as to this excess can it be successfully maintained that such imposition is legitimate as an exercise of the power of taxation. Such an imposition has none of the essential characteristics of a tax. We are to bear in mind that this projected improvement is to be regarded as one in which the public has an interest. The owners of these waste lands have a special concern in such improvement, so far as their lands will be in a peculiar manner benefited. Beyond this, their situation is the same as that of the rest of the community. The consideration for the excess of the cost of the improvement over the enhancement of the property, within the operation of this act, is the public benefit. How, then, upon any principle of taxation, can this portion of the expense be thrown exclusively upon certain individuals? The expenditure of this portion of the cost of the work can only be justified on the ground of benefit to the public. I am aware of no principle which will permit the expense incurred in conferring such benefit upon the public to be laid in the form of a tax upon certain persons, who are designated, not, indeed, by name, but by their description, as the owners of certain lands."

In the recent case of Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443, filed December 12, 1898, the supreme court of the United States seems to have abandoned its former rulings, and to have adopted what Dillon announces as the only true rule upon principle. In that case the court said: "The particular question presented for consideration involves the validity of an ordinance of that village [Norwood], assessing upon appellees' land abutting on each side of the new street an amount cov

ering, not simply a sum equal to that paid for the land taken for the street, but in addition the cost and expenses connected with the condemnation proceedings." And: "The present appeal is prosecuted directly to this court, because the case involves the construction and application of the constitution of the United States." Under a statute of Ohio, the council was authorized to assess the cost and expenses of street improvement "by the front foot of the property bounding and abutting upon the improvement." Rev. St. § 2264. Under this statute the village passed an ordinance providing that all costs and expenses of the condemnation and opening proceedings should be assessed 'per foot front upon the property bounding and abutting on that part of Ivenho avenue as condemned and appropriated herein.'" The real question presented by the facts is thus stated by the court: "Does the exclusion of benefits from the estimate of compensation to be made for the property actually taken for public use authorize the public to charge upon the abutting property the sum paid for it, together with the entire costs incurred in the condemnation proceedings, irrespective of the question whether the property was benefited by the opening of the street?" In answering the question the court say: "The power of the legislature in these matters is not unlimited. There is a point beyond which the legislative department, even when exerting the power of taxation, may not go consistently with the citizen's right of property. As already indicated, the principle underlying special assessments to meet the cost of public improvements is that the property upon which they are imposed is peculiarly benefited, and therefore the owners do not in fact pay anything in excess of what they receive by reason of such improvement. But the guaranties for the protection of private property would be seriously impaired, if it were established as a rule of constitutional law that the imposition by the legislature upon particular private property of the entire cost of a public improvement, irrespective of any peculiar benefits accruing to the owner from such improvement, could not be questioned by him in the courts of the country. It is one thing for the legislature to prescribe it as a general rule that property abutting on a street opened by the public shall be deemed to have been specially benefited by such improvement, and therefore should specially contribute to the cost incurred by the public. It is quite a different thing to lay it down as an absolute rule that such property, whether it is in fact benefited or not by the opening of the street, may be assessed by the front foot for a fixed sum representing the whole cost of the improvement, and without any right in the property owner to show, when an assessment of that kind is made or is about to be made, that the sum so fixed is in excess of the benefits received. In our judgment, the exaction from the own

er 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." After reviewing many authorities, and italicizing what Dillon affirms as the true rule, the court concludes: "It thus appears that the statute authorizes a special assessment upon the bounding and abutting property by the front foot for the entire cost and expense of the improvement, without taking special benefits into account. And that was the method pursued by the village of Norwood. The corporation manifestly proceeded upon the theory that the abutting property could be made to bear the whole cost of the improvement, whether such property was benefited or not to the extent of such cost." And further: "As the pleadings show, the village proceeded upon the theory, justified by the words of the statute, that the entire cost incurred in opening the street, including the value of the property appropriated, could, when the assessment was by the front foot, be put upon the abutting property, irrespective of special benefits. The assessment was by the front foot, and for a specific sum rep1esenting such cost, and that sum could not have been reduced under the ordinance of the village, even if proof had been made that the costs and expenses assessed upon the abutting property exceeded the special benefits. The assessment was in itself an illegal one, because it rested upon a basis that excluded any consideration of benefits. decree enjoining the whole assessment was therefore the only appropriate one." Again: "The present case is one of illegal assessment under a rule or system which, as we have stated, violated the constitution, in that the entire cost of the street improvement was imposed upon the abutting property by the front foot, without any reference to special benefits." An assessment for such improvement, to be in conformity with the opinion, is thus stated: "That, while abutting property may be specially assessed on account of the expense attending the opening of a public street in front of it, such assessment must be measured or limited by the special benefits accruing to it,-that is, by benefits that are not shared by the general public; and that taxation of the abutting property for any substantial excess of such expense over special benefits will, to the extent of such excess, be a taking of private property for public use without compensation." The final judgment of the court follows: "The judgment of the circuit court must be affirmed, upon the ground that the assessment against the plaintiff's abutting property was under a rule which excluded any inquiry as to special benefits, and the necessary operation of which was, to the extent of the excess of the cost of opening the street in question over any special benefits accruing to the abutting

A

property therefrom, to take private property for public use without compensation."

While the facts in the Norwood-Baker Case are unusual and distinguishable from the facts in the case at bar, yet it cannot be successfully denied that the general doctrine laid down is to the effect that the imposition of assessments for local improvements per front foot, irrespective of the question of accruing benefits, is in violation of the fourteenth amendment to the federal constitution; and that the case has been so construed generally by the courts of the country, see Loeb v. Trustees (C. C.; Jan. 9, 1899) 91 Fed. 37, involving the validity of assessments laid by a township upon abutting property for the improvement of a road; Fay v. City of Springfield (C. C.; May 9, 1899) 94 Fed. 409, street-paving assessments against abutters; Sears v. Commissioners (May 18, 1899) 173 Mass. 350, 53 N. E. 876, sewer assessments upon a particular class of property; Hutcheson v. Storrie (June 19, 1899) 92 Tex. 685, 51 S. W. 848, 45 L. R. A. 289, street-paving assessments upon abutting property; Schroder v. Overman (Ohio; Oct. 24, 1899) 55 N. E. 158, street-pavement and sewer assessments against abutters; Charles v. City of Marion (C. C.; Dec. 11, 1899) 98 Fed. 166, street-paving assessments against abutters.

The

The judgment of the federal supreme court defining the limits of legislative power, sanctioned by the federal constitution, is the supreme law of the land. It commands state courts as well as state legislatures. duty thus imposed is agreeable, as being in accord with our sense of just principles, and as furnishing the only reasonable foundation for the exercise of the taxing power in respect to special assessments.

Streets are public highways, which all inhabitants of the municipality have an equal right to use, and by the improvement of which all are in a measure benefited. There is much justice in holding that a sum equal to the special benefits-that is, such benefits as are not shared by the citizens generallyconferred upon the abutters may be exacted for application to the costs of the improvement; for, when the corporation takes only so much as it returns in the way of enhanced values and increased personal comfort, the property owner is not injured, but when he has thus contributed his special benefits as to the remainder of the costs he stands as any other citizen. This remainder represents the price to the public for its general benefits, and when exacted from the abutters is but the taxation of a class for public benefit, and clearly a taking of property for public use without just compensation.

We conclude, therefore, that the principles applicable to assessments for local improvements are these: The legislature may cre ate, or authorize a municipality to create, a local taxing district for local-improvement purposes, which includes part only of the property within the municipality. The legis

lature may declare conclusively that only the property within the taxing district shall be specially assessed on account of local improvement within that district. Each parcel of contributing property may be assessed only to the extent that it actually receives special benefits. The taxing district, as a whole, may be assessed only to the extent of the sum of the special benefits actually received by the several parcels of contributing property. The improvement, so far as its cost exceeds the special benefits resulting to the several parcels of property in the taxing district, is a benefit to the municipality at large, and such excess must be borne by the general treasury. Property owners affected by an improvement within a taxing district are entitled to a hearing on the question of special benefits.

It remains to be seen if the Barrett law denies any of these principles. Whether the answer shall be for the appellant or the appellee depends upon two considerations, namely: (1) Does the Barrett law require that the costs of street and alley improvements shall be assessed against abutting property by the front-foot rule, without regard to the question of resulting benefits? (2) Do the provisions of the Barrett law supply to affected property owners "due process of law," within the meaning of the state and federal constitutions?

In arriving at the true interpretation of the statute, it is useful for us to review the legislative and judicial history of the state and county prior to the enactment of the Barrett law, in 1889. Dillon and Cooley class Indiana as one of the majority states upholding the doctrine that it is competent for the legislature to conclusively declare that the total cost of a local improvement shall be assessed equally against the frontage, and such classification was not without warrant. In 1852 the right to confer authority upon municipal officers to so provide for street and other improvements was first asserted by the legislature in a general law. Rev. St. 1852, p. 217. It was reasserted in 1857 (Acts 1857, p. 53), and again in 1865 (Acts 1865, Sp. Sess., p. 29), and again in 1867 (Acts 1867, p. 66), and again approved in 1881 (Rev. St. 1881, § 3163). The right to enforce such assessments was recognized by this court in 1861. City of Indianapolis v. Imberry, 17 Ind. 175, and in many subsequent decisions. The constitutionality of such legislation was never called in question until 1868, when it was assailed on the ground only that the same was in violation of the state constitution requiring the rate of assessment and taxation to be uniform and equal. Such legislation was then and subsequently upheld as against such objection. Const. art. 10, § 1; Goodrich v. Turnpike Co., 26 Ind. 119; Bright v. McCullough, 27 Ind. 223; Palmer v. Stumph, 29 Ind. 329; Law v. Turnpike Co., 30 Ind. 77. But the constitutional question of due process of law and the taking of property for public

use without compensation in the making of local improvements, within the meaning of the fourteenth amendment to the federal constitution, seems never to have been previously considered by this court, so far as we have observed. Hence no ground exists to justify the insistence that the determination by this court, under former street-improvement laws, of the constitutional question now involved, has been carried into the enactment of the statute in controversy.

It should be noted that prior to 1889 no provision was found in any of the laws entitling property owners to a voice upon the necessity for the improvement, or to a hearing of any kind upon the acts of the assessing officers, or to be heard upon any subject touching the improvement, until after the issuance of a precept for the sale of their property for the payment of the assessment, and then only as to the regularity of the proceedings subsequent to the making of the contract for the improvement. As the law had stood for 37 years, when the Barrett law came up for consideration in the assembly of 1889, municipal officers had the power, with a twothirds vote of the council, to order an improvement, however costly and however unnecessary and oppressive, without regard to the wishes of the citizens, and proceed to charge the abutters with the total cost by the frontage rule, irrespective of any consideration of benefits, and thus, in some instances, impose upon the citizens an absolute confiscation of property without any form of hearing in its defense, further than to require it to be done orderly and according to prescribed rule. For some reasons the people had become dissatisfied with the law as it existed upon the subject. In what respects may be best judged from the character of the changes that were made. It is evident that the discontent did not arise from the method of frontage assessments, as a rule; for that principle had been consistently maintained in every enactment since 1852, and was carried into the Barrett law. Besides, in most cases, the rule is as just and equitable as any that may be devised. In the light of 37 years' experience, however, it was doubtless manifest to the lawmakers that in some instances municipal officers, by reckless and inconsiderate acts, without testing public opinion, had involved citizens in heavy and unnecessary burdens by improvements, and that it was to them equally clear that all property bordering upon a municipal highway was not affected in the same way by an improvement of the latter; that in some cases the grade may be so raised or lowered as to most seriously impair the use and value of the property; in others, that some property may be situate upon a general level, highly improved, and in a business part of the city, while others upon the same street may be remote from business, lying low, and near a water course, and practically worthless for business or residential purposes; in others,

some abutting lots may be 20 feet, and others 200 feet deep. It seems, therefore, reasonable to presume that the mischiefs resulting from the acts of reckless officials, and the common, but exceptional, cases of injustice and hardship flowing from the uniform and rigid application of the front-foot rule, were brought to the attention of the legislature, and that their avoidance was a purpose entering into the structure of the new law. Quill v. City of Indianapolis, 124 Ind. 292, 295, 23 N. E. 788, 7 L. R. A. 681. This much is certain, that for reasons deemed sufficient new and important provisions were incorporated into the new law,-provisions contained in no previous law upon the subject.

The first of these is section 2, p. 237, Acts 1889 (section 4289, Burns' Rev. St. 1894), and is as follows: "Whenever cities or incorporated towns subject to the provisions of this act shall deem it necessary to construct any sewer, or make any of the alley or street improvements in this act mentioned, the council or board of trustees shall declare by resolution the necessity therefor, and shall state the kind, size, location and designate the terminal points thereof, and notice for ten days of the passage of such resolution shall be given for two weeks in some newspaper of general circulation published in such city or incorporated town, if any there be, and if there be not such paper, then in some such paper printed and published in the county in which such city or incorporated town is located. Said notice shall state the time and place, when and where the property owners along the line of said proposed improvement can make objections to the necessity for the construction thereof."

It is argued that this section affords the property owner no remedy beyond the right to advise the council with respect to the necessity for the improvement; and so it has been held by this court. Quill v. City of Indianapolis, 124 Ind. 292, 23 N. E. 788, 7 L. R. A. 681. But it does not follow that no benefit is to flow to the property owner from the observance of this provision. Municipal officers are elective, and, as a rule, in dealing with corporation affairs, will give respectful heed to the popular judgment of their constituents. This provision removes all power from the common council to impose burdens upon private property unawares the owner. It requires public notice to be given of the character and location of the proposed improvement for 24 days from the first publication, a length of time sufficient to develop public opinion advisedly; and at a fixed time and place, and before making a contract, the council shall hear those along the line upon the subject of the improvement; and it may reasonably be expected that if the property owners shall be able to show that there exists no necessity for such improvement, or that it will cost more than the accruing benefits, well-meaning officers will be controlled by such showing and advice, as readily as by the

positive mandate of a statute. It was not intended by this section to deprive the common council of the power of ordering the improvement irrespective of the advice of the property owners, but its purpose is to provide, in all cases, that they shall act advisedly and with deliberation.

The second and most important new provision is found in sections 6, 7, Acts 1889 (the latter section, as amended, Acts 1891, p. 324; Acts 1899, p. 631; sections 4293, 4294, Burns' Rev. St. 1894), which follow:

"When any such improvement has been made and completed according to the terms of the contract therefor made, the common council of such city, or the board of trustees of such town, shall cause a final estimate of the total cost thereof to be made by the city or town engineer, and the common council of such city, or the board of trustees of such town shall require said city or town engineer to report to the common council of such city or the board of trustees of such town the following facts touching such improvement: First. The total cost of said improvement. Second. The average cost per running front foot of the whole length of that part of the street or alley so improved. Third. The name of each property owner on that part of the street or alley so improved. Fourth. The number of front feet owned by the respective property owners on that part of said street so improved. Fifth. The amount of such cost for improvement due upon each lot or parcel of ground bordering on said street or alley, which amount shall be ascertained and fixed by multiplying the average cost price per running front foot by the number of running front feet of the several lots or parcels of ground respectively. Sixth. The full description, together with the owner's name, of each lot or parcel of ground bordering on said street so improved. Seventh. In the case of the construction of a sewer, a description of each lot or parcel of lot benefited thereby, together with the owner's name and the fair proportion of the cost of such sewer according to the benefits conferred thereby, that should be assessed against such lot or part of a lot."

"Upon the filing of the report provided for in the last preceding section, the common council of such city, or the board of trustees of such town, shall give two weeks' notice in a newspaper printed and published in such city or incorporated town, if any there be, and if there be no such paper, then in a newspaper printed and published in the county in which such city or incorporated town is located, of the time and place, when and where, a hearing can be had upon such report, before a committee to be appointed to consider such reports, and such committee shall make report to the common council of said city, or the board of trustees of such town, recommending the adoption or alteration of such report, and the common council of such city or the board of trustees of such town may adopt, alter or amend such report and the assess