
    Palmer v. Stumph.
    Municipal Corporation. — Streets.—The National road, within the city of Indianapolis, is a street of the city.
    Same. — Injunction.—Estoppel.—By the proviso in section 68 of the act for the incorporation of cities, (Acts Spec. Sess.’1865, p. 32) if the owne:^ of property fronting on a .street of a city, for the improvement of which’ the common council has made a contract, denies the power of the council to order the improvement, he must test the question by injunction before the work is done; if he does not do so, but! acquiesces in the action of the council, he is estopped from going behind the making of tjie contract.
    Same. — Repeal.—Remedy.—The repeal of the law under which the contract for a street improvement is made, after tke work kas keen done and tke precept ordering tke sale of tke property issued, does not take away tke remedy of tke contractor. His claim is merged in wkat is equivalent to a judgment and execution levied upon tke property, and is a vested riglit wkick tke legislature cannot take away from kirn; but if tkis were not tke case, tke rigkts of tke contractor are saved by section 90 of tke act for tke incorporation of cities, (Acts Spec. Sess. 1865, p. 39) wkick contains tke repealing clause.
    Same. — Assessments eor Street Improvements. — Tke mode of estimating tke cost of improving tke streets and alleys of a city, and creating a liability tkerefor, and tke extent of suck liability, as establisked in section 66 of tke act for tke incorporation of cities, (Acts Spec. Sess. 1865, p. 30) is constitutional and valid.
    Same. — Taxation.—Tke decision in Bright v. McCullough, 27 Ind. 223, tkat tke constitutional requirement in sec. 1, art. 10, of tke constitution is fulfilled when tke rate of assessment of taxation is uniform and equal tkrougkout tke locality wliere it is imposed, approved.
    Same. — Local Law. — Tke decision in Goodrich v. Winchester, ¿¡c., Turnpike Co., 26 Ind 119, tkat a law wkick is general in its provisions, and open to all tke citizens of tke State to avail tkemselves of its benefits, is not a local or special law, wijkin tke meaning of tke constitution, approved.
    APPEAL from the Marion Common Pleas.
   Ray, J.

These proceedings were had upon a transcript of certain orders of the common council of .the city of Indianapolis, and the entries of the clerk of said city, concerning a street improvement, and the steps taken to enforce the collection of the assessment made upon the property of the appellant, in favor of the appellee, the contractor who did the work of grading and graveling the street. The transcript was brought into the Court of Common Pleas by appeal taken from the precept issued for the collection of the assessment, and after trial final judgment was rendered in favor of the appellee.

The first objection taken to the transcript of the proceedings before the common council is that it appears by the date stated, that the affidavit, upon the filing of which the precept is founded, was not filed until after the precept had been issued. By an examination of the transcript, it clearly appears by the recitals therein, that the date of the filing as stated is a.clerical error, committed by the clerk of the city, and which is corrected by the record itself. The entry is not made by the contractor, and therefore the strict rule of pleading applicable to a complaint should not he followed.

The next objection urged is that the'transeript shows that the improvement was ordered by the council, and was made by the contractor, upon the National Hoad, within the limits of the city, and it is insisted that the highway is not included in the term, a street of the city. The same question is presented by answer in various forms.

The 68th section of the act for the incorporation of cities contains this provision: “ Provided no question of fact shall be tried which may arise prior to the making of the contract.” Acts Spec. Sess. 1865, p. 32. The same provision is contained in the subsequent act. The plain intent of the statute is, to prevent the owner of property, to be benefited by a contemplated improvement made by the common council of the street in front of his property, from remaining silent until he has secured the full benefit of the work, and then avoiding the payment therefor. If he denies the power of the council to order the improvement, he must test the question by injunction before the work is done. Acquiescence in the action of the council is by law made to estop him from going behind the making of the contract.

The records of the city disclosed that the work was ordered and the contract made under a claim that the part of the National Road upon which the improvement was to he made was one of the streets of the city. That was a matter of fact which the appellant can no longer question. City of Indianapolis v. Imberry, 17 Ind. 175; Com. of Allen Co. v. Silvers, 22 Ind. 491.

Again, it is insisted that the repeal of the law under which the contract was made, the woi-k done, and the precept issued ordering the sale of the property, has left the appellee without remedy. As the claim of the contractor was already merged in what is equivalent to a judgment and execution levied upon the property, his vested right in the judgment would seem to bo in little need of legislative aid. His rights, indeed,' under the contract, were vested, aud the legislature could not deprive him of them.

But were it otherwise, they are fully saved by section 90 of the act which contains the repealing clause. Indeed, if his rights were not saved by the new act, the appellant has not pointed out by what law he presents his case on appeal to the Court of Common Pleas, after the repeal of the statute authorizing the appeal to be taken.

The next objection made is that the assessment is invalid because the section of the law authorizing this method of taxing property is unconstitutional and void, as being in conflict with the first section of article ten of the state constitution, which reads as. follows : “ The general assembly shall prescribe by law for a uniform and equal rate of assessment and taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all property, both real and personal.”

The word “assessment” is thus defined by Bouvegr: “Determining'the value of a man’s property or occupation for the purpose of levying a tax.” It is very clear that this meaning cannot be given to the word as used in the first clause of the section, as “a uniform and equal rate” cannot be devised for “ determining the value of a man’s property or occupation;” and if such a rule were practicable, it could accomplish no more than is expressly required in the second clause of the section, “ and shall prescribe such regulations as shall secure a just valuation for taxation of all property.” The second definition given to the word is “ determining the share of a tax to be paid by each individual.” This meaning, however, would include all the other provisions of the section, as “a uniform and equal rate,” determining the share of a tax to be paid by each individual, would involve “a just valuation for taxation of all property.” Another meaning given to the word is, “ laying a tax.” But wherein would a uniform and equal rate of laying a tax differ from a uniform and equal rate of taxation?

To adopt either one of these definitions, would render the use of the word “assessments” tautological, as to the word following it, or as to the remainder of the section. But the rule in construing the statute requires that effect is to be given to every part, and we are not to suppose words have been used which were intended to import nothing. Lovejoy v. Robinson, 8 Ind. 399; Hutchen v. Niblo, 4 Blackf. 148; Stayton v. Hulings, 7 Ind. 145; Black, on Tax Titles, § 36, p. 610; Sedg. on Stat. and Con. Law, 238.

In the construction of words used in a constitution, this rule should be observed with still moi'e strictness, as far more care and consideration has been given to the language employed than are to be anticipated in the drafting of a statute.

The remaining meaning, given, by Botjvier, to the word “ assessment,” enables us to comply with this rule in the present case. He defines it, “ adjusting the shares of a contribution by several towards a common beneficial object, according to the benefit received.” The term is used in this latter sense in New York, distinguishing some kinds of local taxation, whereby a peculiar benefit arises to the parties, from, general taxation. The same distinction is recognized between the words “taxation” and “assessment” by BukrilIi.

That this distinction was, at the date of the drafting and adoption of the present constitution, recognized by the legislature of this State, is shown from laws then in force on our statute books. Thus, in an act granting the citizens of Lawreneeburg a city charter, approved January 20, 1846, (Local Laws 1846, p. 109) it is provided, in section 18, that “for the purposes of revenue the city council shall levy and collect a tax on all real property within said city, not exceeding one-half per cent, on its valuation.” By section 36, it is enacted that “whenever the owners of lots, on any street, shall be desirous of making any improvement on the same, by grading, graveling, paving, curbing, or guttering, or any other improvements,” &c., “the expenses thereof shall he'assessed and levied on all the lots fronting on said street, or section of street, equally per front foot for the distance such improvement may he made.” So in the 26th section of the act for the incorporation of the town of Peru, approved February 14,1848, it was provided that assessments should be made in the same manner for street improvements, and that the “ assessment and levy, from the time of making the same, shall be and remain a lien upon said lot or lots until the amount so assessed and levied shall be fully paid and discharged.” (Local laws 1848, p 10). The same distinction is observed in the act approved January 20, '1846, “to amend and reduce into one, the several acts relating to the corporation of the town of Vevay.” Local Laws 1846, p. 337.

These are but instances of the recognition of a distinction long adopted and existing as a rule applicable to towns and cities at the date of the adoption of the present constitution. It seems to us, that if the rules for construing statutes did not compel us to regard the words “assessment” and “taxation,” as used in this section of the constitution, as distinct in meaning, still the legislation preceding and existing at the date of the constitution, and consistently adhered to until the present time, would require us to recognize, as an existing fact, as applied to certain municipal corporations, for certain well defined. purposes, such a distinction, and to regard it as adopted in our constitution.

This distinction between an assessment and a tax has been recognized and acted upon by other courts. The constitution of Ohio, section 2, article 12, requires that “ laws shall be passed taxing all real and personal property according to its true value in money.”

Another section of that constitution declares that “ the general assembly shall provide for the organization of cities and incorporated villages by general laws.” § 6, art. 13. The latter clause of the same section provides that the legislature “shall restrict their power of taxation and assessment so as to prevent its abuse.” Here tbe taxing power is,-in express terms, limited by one section to a money valuation of' property, and yet tbe subsequent section, requiring the general assembly to restrain towns and cities in their exercise of the power of taxation and assessment, has been held as a recognition of the existence of a power to assess upon property without regard to the standard of value. Hill v. Higdon, 5 Ohio St. 248. In our own constitution, the distinction is taken in the very language which limits the taxing power.

In the case of Reeves v. The Treasurer of Wood County, 8 Ohio St. 333, the Supreme- Court of Ohio, in considering the constitution of that State, say: “ Hnless we admit that the framers of this constitution were guilty of nonsensical tautology, the use, in this section of the constitution, of both words,‘taxation’ and ‘assessment,’ is, by necessary implication, a recognition of the distinction between them, and also of the existence of the power to authorize assessments ; for a constitutional mandate upon a legislative body to restrict and provide against the abuse of a powei-, presupposes its existence.”

I may say that, although such assessments are a species of taxes, and included within the term taxes, in its most general sense, yet there has been established, by the decisions of courts of high authority, a distinction between assessments and taxes proper; and that this distinction is by irresistable implication recognized by the present constitution. In the same opinion it is said: “ Taxes are impositions for purposes of general revenue; assessments are ‘ special and local impositions upon property in the immediate vicinity’ of an improvement for the public welfare, ‘ which are necessary to pay for the improvement, and laid with reference to the special benefit which such property derives from-the expenditure.’”

The constitution of New York contains the same provision, requiring the legislature to restrain cities and towns in exercising the power of taxation and assessment, and in The People v. The Mayor &c. of Brooklyn, 4 Corns. 419, the same construction was placed upon the language, although it was also held that no restraint upon the power of taxation was imposed by that constitution. This distinction is strikingly shown by the constitutional- provisions of some of the other states, and the decisions under them:

Missouri. “ All property subject to taxation in this state shall be taxed in proportion to its value.” Article 13, section 19.

Louisiana. “ Taxation shall be equal and uniform throughout the state. All property on which taxes may be levied in this state shall be taxed in proportion to its value, to be ascertained as directed by law. No one species of property shall be taxed higher than another species of property of equal value, on which taxes shall be levied.” Article 123.

Illinois. “ The general assembly shall provide for levying a tax by valuation, so that every person and corporation shall pay a tax in proportion to the value of his or her property; such value to be ascertained by some person or persons to be elected or appointed in such manner as the general assembly shall direct, and not otherwise.” Article 9, section 2.

California. “ Taxation shall be equal and uniform throughout the state. All property in this state shall be taxed in proportion to its value, to be ascertained as directed by law.” Article 11, section 13.

In the states of Missouri, Louisiana, Illinois and California, it is held that these provisions do not apply to assessments. Egyptian Levee Co. v. Hardin, 27 Mo. (6 Jones) 495; Draining Company, Praying &c. 11 La. Ann. 338; Surgi v. Snetchman, id., 387; Wallace v. Shelton, 14 id., 498; Bishop v. Marks, 15 id., 147; State v. New Orleans, id. 354; Canal Trustees v. City of Chicago, 12 Ill. 403; City of Chicago v. Colby, 20 Ill. 614; Burnett v. City of Sacramento, 12 Cal. 76; Emery v. San Francisco Gas Co. 28 id., 345.

In Louisiana, where, as we have already seen, taxation must be levied on all property in proportion to its value, an act of the legislature was passed providing “ that for the purpose of building, or making and repairing, all levees in said levee district, the commissioners of the same are hereby authorized and empowered to assess an annual tax on all the alluvial lands situated in the parishes of Carrol and Madison, specifically upon each and every acre.” In the case of Wallace v. Shelton et al., supra, it was held that although the act called it an “ annual tax,” yet it did not come within the meaning of the constitution, but was purely an assessment.

But it is objected that the rate of assessment must be uniform and equal. In Bright v. McCullough, &c., 27 Ind. 223, it was ruled that this requirement of the constitution was fulfilled when the rate of assessment or taxation was uniform and equal throughout the locality where it was imposed. By this act the rate is the same upon every one within reach of the assessment, that is the' exact benefit each may receive from the improvement of the street. The legislature have adopted this method of reaching th'at result. It is certainly reasonable to suppose that as a rule, property along the line of a street improved will be equally benefited; that as a rule, the property fronting upon a street, foot by foot, will be of equal value, and should therefore be equally assessed.

The constitution of Massachusetts (Part 2, Chapter 1, Section 1, Article 4) contains, among other provisions as to legislative power, the following: “And to impose apd levy proportional and reasonable assessments, rates and taxes upon all the inhabitants of, and persons resident, and estates lying within, the said commonwealth.”

We do not think the effect of the language of our constitution requiring “a uniform and equal rate of assessment” differs materially from that employed in the constitution of Massachusetts, and to that clause of the constitution a construction has been given by the supreme court of that state. In the case of Morgan v. The City of Boston, 12 Allen 223, the legislature had provided for widening a street in said city, and required that the whole expense of the work, including the sum awarded as damages for the land taken, should be assessed upon and paid by the owners in proportion to the value of the land belonging to each, which should abut on said street, after it should have been completed.

In considering the question of the constitutionality of the law, Bigelow, C. J., on page 237, says: “ It certainly cannot be said that all taxes laid for local purposes of a public nature on those who would be chiefly and directly benefited by the execution of a proposed work, and in proportion to the degree of benefit or profit which each will receive therefrom, are necessarily either unreasonable or unproportional. Nor can it be contended that the constitution, in regard to this species of taxation, furnishes any fixed rules of proportion, or gives any absolute standard by which to determine whether a particular taxis within the limits of the legitimate exercise of the power granted. Undoubtedly, a very wide discretion was intended to be left to the legislature as to the subjects and method of executing the authority conferred on them of imposing taxes for purposes other than those of a general nature; and yet the power is not wholly without limit. In requiring that taxes should be proportional and reasonable, the framers of the constitution intended to erect a barrier against an arbitrary, unjust, unequal or oppressive exercise of the power. Oliver v. Washington Mills, 11 Allen 268. If, for instance, the legislature should arbitrarily designate a certain class of persons on whom to impose a tax, either for general purposes, or for a local object of a public nature, without any reference to any rule of proportion whatever, having no regard to the share of public charges which each ought to pay relatively to that borne by all others, or to any supposed peculiar benefit or profit which would accrue to those made subject to the tax which would not enure to others, so that in effect the burden would fall on those who had been selected only for the reason that they might be made subject to the tax, we can not doubt that the imposition of it would be an unlawful exercise of power, not warranted by the constitution, against the exercise of which a person aggrieved might sue for protection. But no such case is made by the present bill. This part of the plaintiff’s case rests on the broad proposition that the legislature have no power to authorize the assessment of the cost of a work of a public nature, but the construction of which will be of special and peculiar benefit to adjacent property, on the abutting estates, in proportion to their value. Eor the reasons already given, we are of opinion that such a tax is neither unreasonable nor unproportional, and that it was competent for the legislature to impose it in the mode, prescribed by the statute.”

, The objection that the law is local, or special, was fully answered' in the case of Goodrich v. The Winchester and Deerfield Turnpike Co., 26 Ind. 119. So far as this objection is of weight, it applied to the law then under consideration with as much force as to the present statute. Upon that point this language was used: “The law in question is general in its provisions. It is open to all the citizens of the State to avail themselves of its benefits. The principle in it as to taxation is the same as that recognized in the act for the incorporation of cities, so far as the improvement of streets and alleys is concerned, and is identical with that provided for under the act to authorize the construction of levees and drains, approved June 12, 1852, held valid in this court in Anderson v. Kerns Draining Co., supra.”

This language was used, as is plain upon its face, solely with regard to the point under discussion, whether the law was local or special, or, as the constitution requires it to be, general. It was general, as the rule in regard to the improvement of streets is general; that is, it applies equally to every one coming within its reach. In our opinion, the method adopted by the legislature is not in conflict with the constitution.

S. E. Perkins, T. A. Hendricks, O. B. Hord and A. W. Hendricks, for appellant.

A. G. Porter, B. Harrison, W. B. Fishbaek, B. K. Mliott, and J. B. Black for appellee.

The judgment is affirmed, with one per cent, damages, and costs.  