82 N.W. 732 | N.D. | 1900
This action was brought to, cancel and annul a special assessment for. paving purposes in the City of Fargo.
This assessment was made under section 2280, Rev. Codes 1895, which reads: “Whenever any work or improvement mentioned in the preceding section shall have been determined upon and the contract let therefor, the city engineer shall forthwith calculate the amount to be assessed for such improvement for each lot or parcel of ground abutting or bounding upon such improvement. And in estimating the assessment he shall take the entire cost of such improvement and divide the same by the number of feet fronting or abutting upon the same, and the quotient shall be the sum to be assessed per front foot so bounding or abutting, and said estimate shall be filed with the city auditor and shall be presented to the city council for its approval at the first meeting held thereafter. The city auditor shall cause said estimate of the city engineer, together with a notice of the time and place when the council will meet to approve of the same, to be published in the official newspaper of the city for at least ten days prior to the meeting of the city council to approve the same.” A similar assessment under this same section, and resting in all respects upon the same basis, was before this court in Rolph v. City of Fargo, 7 N. D. 640, 76 N. W. Rep. 242. That assessment was resisted upon substantially the same grounds that are urged here. As the question was then new in this jurisdiction, and was of much importance, and as this court conceived the adjudications upon the point to be conflicting and somewhat uncertain, a very elaborate opinion was prepared by Chief Justice Corliss, in which the underlying principles were discussed at length, and the leading cases upon all phases of the question were cited. After the fullest consideration, we upheld the assessment. We are now asked, however, to reverse that holding for the reason that the Federal Supreme Court, in the case of Village of Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. Rep. 187, 43 L. Ed. 443 (decided since our decision in the Rolph Case), have established the broad principle that all special assessments upon the basis of frontage are in violation of the fourteenth amendment to the federal constitution, in that they may'- result in taking of property without due process of law. That appellant’s view of that case has support in the case is shown by the fact that the decision has been thus construed in Fay v. City of Springfield (C. C.) 94 Fed. Rep. 409, and Cowley v. City of Spokane (C. C.) 99 Fed.
These general principles apply to and control special taxation and special assessments. The fact that the legislature has by law fixed certain permanent taxing districts does not deprive it of the power to fix other and special taxing districts, when by legislative determination such district is to receive a special benefit. It may not tax one district for the benefit of another, any more than it might tax one countv for the benefit of another, or authorize a general tax for a private purpose. But if the purpose be one that ostensibly and reasonably confers a special benefit upon a special locality, then the legislative power is plenary, within the limits of the organic law. As said by Mr. Justice Brewer in his dissenting opinion in Village of Norwood v. Baker: “The legislative act charging the entire cost of an improvement upon certain described property is a legislative determination that the property described constitutes the area benefited, and also that it is benefited to the extent of such cost.”' And this legislative determination having been reached, and the legislature having the exclusive power to make the determination, it cannot be questioned. And, the fact of special benefit to the special district being thus established, no taxpayer in that district can be heard to $ay that he is not benefited, or that he is not benefited as largely as any other taxpayer in the special taxing district having the same valuation, area, or frontage, as the case may be. No reason can be assigned why the taxpayer in the special