The power to make special assessments for public improvements is within the taxing power of the state ; People v. Mayor, etc., of Brooklyn, 4 N. Y. 419, 55 Am. Dec. 266, note; People v. Pitt, 169 N. Y. 521, 62 N. E. 662, 58 L. R. A. 372. The authority may be ed directly, or it may be left to local boards or bodies ; In re Piper, 32 Cal. 530; Kelly v. Chadwick, 104 La. 719, 29 South. 295 ; People v. Buffalo, 147 N. Y. 675, 42 N. E. 344 (where assessors and not common council were authorized to fix the district of assess ment for river dredging); but in the latter case the determination will be by a body possessing, for the purpose, legislative pow er, and whose action must be as conclusive as if taken by the legislature itself ; Cooley, Taxation [3d ed.] 1207), where it is said the two methods of apportionment between which a choice is usually made are: 1. An assessment made by assessors or commis sioners, appointed for the purpose under leg islative authority, who are to view the es tates and levy the expense in proportion to the benefits which, in their opinion, the es tates respectively will receive from the work proposed. 2. An assessment by some def inite standard fixed upon by the legislature itself, which is applied to estates by a meas urement of length, quantity, or value.
An assessment will be upheld wherever it is not obvious from the nature and location of the property involved, the district pre scribed, the condition and character of the improvement, or the cost and relative value of the property to the assessment, that the method adopted has resulted in imposing a burden in substantial excess of the benefits, or disproportionate, within the district, as between owners ; King v. Portland, 184 U. S. 69, 22 Sup. Ct. 290, 46 L. Ed. 431, affirming id., 38 Or. 402, 63 Pac. 2, 55 L. R. A. 812; Weber v. Reinhard, 73 Pa. 373, 13. Am. Rep. 747; Jones v. City of Boston, 104 Mass. 461; Ahern v. Board of Improv nt Dist. No. 3, 69 Ark. 68, 61 S. W. 575 ; son v. Kansas City, 46 Kan. 438, 26 Pac ; City of Chi cago v. Baer, 41 Ill. 306; State v. Fuller, 34 N. J. L. 227.
A principle of assessment is void if it is not based upon benefits to the property as sessed, and the assessment limited to the benefits ; Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443 ; Lee v. Rug gles, 62 Ill. 427; In re Application for Drain age of Lands between Lower Chatham and Little Falls, 35 N. J. L 497; In re City of New York, 3 Wend. (N. Y.) 452 ; Gilmore v. Hentig, 33 Kan. 174, 5 Pac. 781; Thomas v. Gain, 35 Midi. 155, 24 Am. Rep. 535; Alle gheny City v. R. Co., 138 Pa. 375, 21 Atl. 763 ; Hutcheson v. Storrie, 92 Tex. 688, 51 S. W. 848, 45 L. R. A. 289, 71 Am. St. Rep. 884; Adams v. City of Shelbyville, 154 Ind. 467, 57 N. E. 114, 49 L. R. A. 797, Am. St. Rep. 484 ; Cowley v. City of Spokane, 99 Fed. 840. That the cost of a local improvement may be assessed without regard to benefit is held in some jurisdictions; In re Madera Irr.
Dist., 92 Cal. 296, 28 Pac. 272, 675, 14 L. R. A. 755, 27 Am. St. Rep. 106; Weeks v. City of Milwaukee, 10 Wis. 242, where the power to impose such burdens is placed upon a constitutional recognition of the power to make assessments as distinguished from tax ation. It was held In In re Kingman, 153 Mass. 566, 27 N. E. 778, 12 L. R. A. 417, that assessments for public improvement need not be in proportion to the benefits. In Iowa all local assessments are based on the simple ground that the object is public, and that the system of taxing abutting lots secures such a just distribution of burdens as to be within the rule requiring uniformity of tax ation ; Morrison v. Hershire, 32 Ia. 271.
Front Foot Rule. The apportionment of the entire cost of a pavement upon abutting lots according to frontage, without any pre liminary hearing as to benefits, may be au thorized by the legislature, and this will not constitute a taking without due process of law ; French v. Pay. Co., 181 U. S. 324, 21 Sup. Ct. 625, 45 L. Ed. 879. This case and the other cases reported in the same volume all involved the constitutionality of acts cre ating special taxing districts and providing for assessing the costs of local improve ments upon abutting property, in proportion to their frontage. The opinions were deliv ered in all of them by Mr. Justice Shiras; Harlan, White and McKenna, JJ., dissenting.
In Davidson v. New Orleans, 96 U. S. 97, 24 L. Ed. 616, an assessment of certain real estate in New Orleans for draining swamps was resisted in the state courts, and the case came into the Supreme Court of the United States on the ground that the proceeding de prived the owner of his property without due process of law. The origin and history of this provision of the constitution as found in Magna Carta and in the 5th and the 14th amendments were considered ; the cases of Murray v. Imp. Co., 18 How. 272, 15 L. Ed. 372, and McMillen v. Anderson, 95 U. S. 37, 24 L. Ed. 335, were approved ; and it was held that "neither the corporate agency by which the work is done, the excessive price which the statute allows therefor, nor the relative importance of the work to the value of the land assessed, nor the fact that the assessment is made before the work is done, nor that the assessment is unequal as re gards the benefits conferred, nor that personal judgments are rendered for the amount as sessed, are matters in which the state au thorities are controlled by the federal con stitution." And to the same effect, French v. Pay. Co., 181 U. S. 324, 21 Sup. Ct. 625, 45 L. Ed. 879, where the question involved was the constitutionality of the apportion ment of the cost of a street pavement upon the lots of abutters.