to do but apportion the benefits." The court observe: "The council does not nor can it assess damages or benefits. These questions are left to the jury.”

The case was a condemnation proceeding. The "damages" spoken of were the just compensation of the Constitution for property taken and the benefits are the special, peculiar, exceptive benefits necessary for this kind of taxation within the benefit district defined by the council. "And the jury has no right to say in its verdict that property within the district prescribed by the ordinance is not benefited at all" (page 217 in brief of counsel). Court and jury found there were no benefits when the council found there were. What was a benefit and how much, were questions for court and jury, certainly not legislative questions. If the legislative power cannot determine benefits in a condemnation proceeding or in a proceeding to ascertain just compensation for damaging private property for public use (and when you determine benefits you exercise the tax-power), how can that legislative power determine the fact and amount of benefits in the exercise of the same tax power to pay for paving a street? The legislative power cannot, under its taxing power, determine benefits for grading a street; how can the Legislature in the exercise of the same tax power determine the fact and amount of benefits for paving? You grade a street and leave the property high up in the air, inaccessible to the owner; what good does a sidewalk to that property do that owner? How can the Legislature determine the fact and amount of benefit? They do not and cannot know the cost of a work which must be let to the lowest bidder. How can they determine that the benefit will equal the cost when without omniscience they cannot determine cost? The charters do not endow them with omniscience. This is about the only power not conferred.

CHAPTER 8.

CHANGES IN JUDICIAL RULINGS.

We come now to a change in the judicial rulings of the Supreme Court of Missouri, and other states also. That change is from the old doctrine as announced in the earlier decisions in favor of individual right, to one directly the opposite.

The first case of importance in which this change is noted is that of Keith v. Bingham, 100 Mo. 300 (A. D. 1889). The suit was on a tax-bill for grading the street on which the lot abutted, and against which it was charged to be a lien. The tax-bill sued on was issued July 26, 1883, and was therefore under the Constitution of Missouri of 1875. The ordinance for the work was approved in October, 1882, seven years after the adoption of the Constitution of 1875 and nine years after the Supreme Court decided that "Local assessments are constitutional only when imposed to pay for local improvements conferring special benefits" (54 Mo. 474).

In Keith v. Bingham the grading was a damage forbidden by the Constitution, and yet the tax was constitutional as against the very person and property intended to be protected. In rendering the opinion that court, on page 306, says:

"It is claimed by defendant that the tax-bills in suit were issued in violation of that section of the Constitution which declares "That private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed

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by law; and until the same shall be paid to the owner or into court for the owner the property shall not be disturbed.' [Const. 1875, art. 2, sec. 21.]

"Looking at this defense from the most favorable standpoint it is evident it is untenable. The section of the Constitution just quoted refers to, and is intended to regulate the exercise of the right of eminent domain, whereas special assessments for local improvements, such as the tax-bills before us, are referable to and sustainable under the taxing power. This distinction is well recognized here and elsewhere in the United States. [Garrett v. St. Louis (A. D. 1857), 25 Mo. 505; Lewis on Eminent Domain, sec. 5.]"

In the Constitution of Missouri, framed "at the town of St. Louis on the nineteenth day of July, in the year of our Lord one thousand eight hundred and twenty, and of the independence of the United States of America the forty-fifth," occurs in article 13, subdivision 5, this language. "And that no private property ought to be taken or applied to public use without just compensation."

In St. Louis v. Peter Gurno, 12 Mo. 414, an action on the case for damages to Mr. Gurno's property in St. Louis by reason of grading and paving the street in front of his property, the report says: "The jury found the defendant guilty and assessed the damages at $1,675" (the City of St. Louis being defendant below, but plaintiff in error above). This damage appears to have been done in 1843 and the case determined in the Supreme Court of Missouri in 1849. Here were damages to the amount found. And yet plaintiff could not recover. Two years later Taylor v. St. Louis was decided by the same court (14 Mo. 20). No damages were found by court or jury. The court instructed the jury that "Any injury to adjoining property caused by grading the same in a skillful and prop

er manner, is not an appropriation of private property for which the owner of said adjoining property can recover in an action against the city" (p. 21-22).

Say the court, p. 24:

"To grade a street or alley already dedicated to public use, is not an exercise of eminent domain so as to require compensation. It is not appropriating private property to public use, but simply an exercise of power over what is already public property. The damage resulting by causing the plaintiffs to rebuild or prop up their falling walls is consequential and . the city is not responsible." But in all these cases the property was damaged.

The constitutional provision now is that private property shall not be taken or damaged.

"The constitutional provision quoted is intended to regulate the exercise of the right of eminent domain," say the court, while the evident idea intended to be conveyed is that it is limited-this constitutional provision is limited to taking private property for public use by the exercise of the right of eminent domain or damaging private property for public use in the exercise of the right of eminent domain; in either case there must be just compensation.

Private property may be taken for public use, or it may be damaged for public use in the exercise of any governmental power, either legislative, executive or judicial, other than that of eminent domain, and the owner of the property so taken or damaged is remediless so far as getting "just compensation" for either taking his property or damaging it. The constitutional provision quoted is certainly intended to regulate the exercise of the right of eminent domain, but that is not its only purpose.

Here a street is graded and abutting property is damaged. When the city passed the ordinance to grade and graded this street, it did not exercise the right of

eminent domain as then generally understood by Bench and Bar.

It is said that "special assessments for local improvements are referable to and sustainable under the taxing power" (if sustainable at all).

In Wells v. Weston, 22 Mo. 384, it was the taxing power that took Wells' land contrary to or in violation of the Constitution.

In St. Charles v. Nolle, 51 Mo. 124, it was the taxing power that took private property for private use under the form of an exaction of a license tax.

In Town of Cameron v. Stephenson, 69 Mo. 372, at 378, the taxing power made the exaction and the Constitution rendered the act void as taking private property for private use.

In City of St. Louis to use v. Allen, 53 Mo. 44, the tax-law was constitutionally invalid as taking private property for public use without just compensation.

In Higgins v. Ausmus, 77 Mo. 351, Mr. Higgins' stoves were taken for a local sidewalk tax. The tax-law was invalid as taking his private property (his stoves) for public use without just compensation.

In Pleasant Hill v. Dasher, 120 Mo. 675, the local tax-law was held invalid as taking private property for public use without just compensation.

"If the state government possessed no authority over private property except that of taking it for the public use upon rendering the owner a just compensation, it would seem that, under this provision, the owner would be entitled to the full money value of his property without any deduction" (25 Mo. loc. cit. 263).

"This law (road law of 1845) is, indeed, nothing more in effect than the exercise of both powers of government in the same breath-that of taking the land by the right of eminent domain, and of requiring, under the taxing power, the adjacent landowners to contrib