Adams v. City of Shelbyville

Hadley, C. J.

Appellant brought this suit to restrain appellee from improving a street on which he owned an abutting lot.

Shelbyville has less than 10,000 inhabitants, and the proceedings for the proposed improvement were instituted under the statute commonly known as “the Barrett law”, §§4288-4298 Burns 1894, §§6771-6780 R. S. 1881 and Horner 1897. On August 2, 1898, the common council, without any petition from the ownérs of the property affected, passed a resolution declaring a necessity for the improvement, the same to be executed as follows: “There shall be set and erected a curb of oolitic stone four inches thick, twenty inches wide, and not less than five feet in length, to be set twenty-two feet from the lot line outward, set to grade, set on a good bed of sand four inches thick, and to be dressed so that when set and completed the part of curbing that is exposed will show as dressed; the joints all to fit neat and smooth and make close connection; and the space between the brick sidewalk on said part of said street shall be filled with good rich dirt, and properly graded and made smooth, and when grade is made to be covered with good live fresh sod, to be on grade with the curbing and the brick sidewalk, * * * and that the cost and expense thereof, including advertising, labor, and material for the same, be assessed against the property on the line, and collected according to the provisions of an act of the General Assembly of the State of Indiana approved March 8, 1889, and amendments thereto”, and that notice should be given by publication that, the common council, on August 30, 1898, at their chamber, would receive sealed proposals for the execution, of the work, and would hear property owners’ objections to the necessity for the construction thereof.

On August 26, 1898, appellant filed his complaint stating the foregoing facts, and alleging that the street to be improved is 100 feet wide, and the proposed widening of the sidewalks to twenty-two feet on each side will reduce the roadway to about fifty-five feet; that the making of said improvement will cost about $1 per lineal foot, which it is proposed the abutting property owners shall pay; 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 it 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.”

¥e 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 abutting 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 on Taxation (2nd 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 can not 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 authorities 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. §§752-761 (4th .ed.). And, as upholding the doctrine of the majority, the author notes (§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. City of New Orleans (1877), 96 U. S. 97, 104, 24 L. ed. 616; County of Mobile v. Kimball (1880), 102 U. S. 691, 26 L. ed. 238; Hagar v. Reclamation District (1883), 111 U. S. 701, 4 Sup. Ct. 663, 28 L. ed. 569; Wurts 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 assessment, in his eighth conclusion (§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 or 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 enhanced 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 o-f 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 expenses incurred in conferring such benefit upon the public, to be laid in the form pf 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 the appellee’s land abutting on each side of the new street an amount covering not simply a sum equal to that paid for the land taken for the street, but, in addition, the costs and expenses connected with the.condemnation proceedings”; and “the present appeal was prosecuted directly to this court, because the case involved 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. Under this statute the village passed an ordinance providing that all costs and expenses of the condemnation and opening proceedings should be assessed ‘per front foot upon the property bounding and abutting on that part of Ivenhoe 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 priblic 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 owner 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 iltalicizing 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 representing 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. A 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 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 can not 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 ease has been so construed generally by the courts of the country. See Loeb v. Trustees of Columbia Tp. (C. C. S. D. Ohio), 91 Fed. 31, January 9, 1899, 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. S. D. Mo.), 94 Fed. 409, May 9, 1899, street paving assessments against abutters; Sears v. Street Commissioners, 173 Mass. 350, 53 N. E. 876, May 18, 1899, sewer assessments upon a particular class of property; Hutcheson v. Storrie, 92 Texas 685, 51 S. W. 848, 45 L. R. A. 289, June 19, 1899, street paving assessments upon abutting property; Schroder v. Overman (Ohio St.), 55 N. E. 158, October 24, 1899, street pavement and sewer assessments against abutters; Charles v. City of Marion (C. C. Dist. Ind.), 98 Fed. 166, December 11, 1899, street paving assessments against abutters.

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. The 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 generally, conferred 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 legislatrn'e may create, or authorize a municipality to create, a local taxing distn'ict for local improvement purposes, which includes part only of the property within the municipality,• the legislature may declare conclusively that only the property within the tawing 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 country 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 offi: cers so to provide for street and other improvements, was first asserted by the legislature as a general law. R. S. 1852, p. 217. It was reasserted in 1857 (Acts 1857, p. 53), and again in 1865 (Acts 1865, S. S. p. 29), and again in 1867 (Acts 1867, p. 66), and again approved in 1881, §3163 R. S. 1881. The right to enforce such assessments was recognized by this court in 1861, 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. Art. 10, §1, State Constitution; 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 thirty-seven, years, when the Barrett law came up for consideration in the Assembly of 1889, municipal officers had the power, with a two-thirds 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 citizen 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. Por 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 thirty-seven 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 afiected 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 watercourse, and practically worthless for business or residential purposes; in others, some abutting lots may be twenty 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, 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 §2 Acts 1889, p. 237, §4289 Bums 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 notices 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, 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 conncil 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 twenty-four 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, ás 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 six and seven, Acts 1889 (the latter section, as amended, Acts 1891, p. 324, Acts 1899, p. 63), sections 4293, 4294 Burns 1894, -which follow:

Section 4293. “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 trústees 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 such 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 assessments therein. Any person feeling aggrieved by such report shall have the right to appear before such committees and the common council of such city or the board of trustees of such town, and make objection thereto, and shall be accorded a hearing thereon, and the common council of such city, or the board of trustees of such town, shall assess against the several lots or parcels of ground, the several amounts which shall be assessed for and on account of such improvement.”

It will be noted that section six provides that after completion of the work the engineer shall report certain facts to the council — not make an assessment of the costs; that when such report is lodged with the council it shall give two weeks’ public notice of a time and place, when and where a hearing can be had upon the facts reported by the engineer, before a committee appointed by the council to consider such report, and such committee shall, after a consideration of the report, recommend to the council the adoption or alteration of the same. And any person feeling aggrieved by such report shall have the right to appear before the committee and present objections thereto, and shall be accorded a hearing thereon, and the further right to carry his objections to the common council where he shall also be accorded a hearing. After the hearings and objections are disposed of, the common council may adopt, alter, or amend the report and the assessments thereon, “and shall assess against the several lots or parcels of ground the several amounts which shall be assessed for and on account of such improvement.”

It is contended that the statute limits the hearing before the committee and common council to errors of the engineer in stating the facte required of him, and that the power of the council, with respect to the report, is exhausted when it has verified such facts. We are unable to approve such construction. Section six requires that the engineer shall report certain facts to the council; that is to say, report such facts correctly; nothing short of a correct report is a compliance with the statute. We must view the subject as if the lawmakers assumed that the engineer would do his duty and that when he submitted his report to the council it accurately stated the facts required of him. Besides, will it be seriously contended that if, by inadvertence, errors crept into the report, the engineer, or even the council, at any time before final action thereon, did not have full power to correct it? Ball v. Balfe, 41 Ind. 221, 225. What reason, then, conld there be for the legislature to deem it expedient to provide express authority in the council to correct, or cause to be corrected, errors in a report where none were reasonably supposed to exist, and where the power of correction would exist by irresistible implication? We may not attribute insincerity and dissembling to the legislators. We must believe that they meant something by these provisions beyond that granted by the old law, or why change it? The old law had been found efficient and authorized by the Constitution.

In the search for legislative intent “the court will look to each and every part of the statute; to the circumstances under which if was enacted; to the old law upon the subject, if any; to other statutes upon the same subject, or relative subjects, whether in force or repealed; to contemporaneous legislative history, and to the evils and mischiefs to be remedied.” Barber, etc., Co. v. Edgerton, 125 Ind. 455, 460; Reynolds v. Bowen, 138 Ind. 434, 449; Goodwin v. State, 142 Ind. 117, 121.

The common council shall give two weeks’ notice of a time and place when their committee shall consider the report and hear grievances. In drainage and other assessment proceedings, it is provided that the commissioners shall inquire into certain facts, assess benefits and damages, and “make report to the court; and the court shall fix a time for hearing the report”, and, after ten days’ notice of the filing thereof, those affected by the report may appear and remonstrate. §§5624, 5625 Burns 1894.

It is even doubtful that the consideration of the report required of the committee, and the hearing they shall give thereon, relate to any other subject than the proposed assessments, or allotments of the cost of the improvement? After such hearing and consideration the committee is required to report their recommendations to the common council, and the council, being thus advised, and upon further hearing of objections, may adopt the report as made by the engineer, distributing the total cost equally per front foot, or it may alter the report and the assessments therein; and when the conclusion of the council is reached, it shall assess against the several lots and parcels of ground the several amounts which shall be assessed on account of such improvement. The mandate of the statute, following the hearings, that the council shall assess the several amounts against the several parcels, clearly indicates the particular subject to be previously considered by the council and its committee. From the term “hearing” is necessarily implied the power to administer some adequate remedy.

The council may alter the assessments, that is, as indicated by the engineer’s report on the front-foot rule. “Alter” is to “’make otherwise”. Webster’s Int. Diet.

From these considerations we are unable to resist the eon-. elusion that, upon the hearing provided in section seven, the common council have power to change assessments from the frontage rule in such cases as they may deem just. That the ■legislature may confer upon municipal officers the power to adjust special benefits accruing from such improvements to a fair and just basis, is well settled; Garvin v. Daussman, 114 Ind. 429, 435; Kizer v. Town of Winchester, 141 Ind. 694, 696; and the speedy and ample remedy afforded by this view of the statute is consistent with the spirit of the act and the nature of such improvement, which public convenience requires to be accomplished in the shortest practical period, as said in Garvin v. Daussman, supra, page 436: “It is essential to- the public good that the necessity for street and other public improvements, and the cost of making them, and such other proceedings as are necessary to insure the prompt execution of the work, be determined and taken in a comparatively summary way.”

An assessment is the “adjusting of the shares of a contribution by several towards a common beneficial object according to the benefit received”. Bouvier’s Law Diet.; Anderson’s Law Diet.

Erom the power to alter is necessarily implied the power to add to or diminish. The absence of an express rule for guidance in the exercise of the power to alter does not impair it. It is sufficient if the power to change the assessment from the frontage rule exists. “It is a well affirmed principle that where a power is conferred by a statute, everything necessary to carry out the purpose of the power conferred and make it effectual and complete will be implied.” Conn v. Board, etc., 151 Ind. 517, 525; Sutherland’s Stat. Con. §§310 and 311. Such implied power, however, will not authorize the employment of means and methods which may spring from the whims and caprices of administrative officers, according to varying circumstances, but will only permit the use of such reasonable, uniform, and consistent modes and measures as are calculated to accomplish the purpose in the spirit designed. How the power may be exercised in this instance must be determined from the spirit and scope of the whole act, of which said section seven is a part, as aided by the spirit, and principle running-through other legislation upon the same and kindred subjects. Sutherland’s Stat. Oon. §288.

In an act relating to the opening and improvement of streets, §3633 Burns 1891, §3110 R. S. 1881 and Horner 1891, commissioners are commanded to make assessments on the basis of actual benefits. The same rule is required in drainage and free gravel road proceedings, §5658 Burns 1891, §1288 R. S. 1881 and Horner 1891, Acts 1869, p. 11. And this court has consistently held for thirty years that special benefits are the only foundation for special assessments. City of New Albany v. Cook, 29 Ind. 220; Ross v. Stackhouse, 111 Ind. 200; Quill v. City of Indianapolis, 121 Ind. 292, 1 L. R. A. 681; Barber, etc., Co. v. Edgerton, 125 Ind. 155, 165.

The published notice calls attention of all persons affected that the report of the engineer is before the council for consideration, and that the same is subject to such alteration as the council may deem just in adjusting the several assessments to the basis of actual benefits, and all persons concerned are bound to know that the prima facie assessments against their property are liable to be increased as well as decreased. That this court prior to 1889 supported the doctrine that the legislature had constitutional sanction to declare, as matter of law, that the special benefits to a particular district, by an improvement, were equally received by bordering property, and equal to the total cost, has little force as an argument. The answer to it is that the injustice and hardship resulting from the doctrine were potential in securing legislative action' for the amelioration of the rule. "We think it evident that the Assembly of 1889 determined upon a modification of the old rule, so far as it required an equal distribution of the cost of an improvement on all bordering property, without regard to the question of actual benefits. Not that the rule offended either the federal or State Oonstitution as then interpreted by the federal and State courts (for no question of that character had been raised in this State), but because it was required by the simplest principles of justice. The act of 1889 must be tested by the usual canons of construction, and if from these it appeal’s that the Assembly took cognizance of the mischiefs resulting from the old law and provided a remedy in advance of constitutional requirement, the legislation is not to be discredited by the fact that the courts have come to restrict the constitutional limitations to the bounds set by the statute. The important inquiry is: Is the statute, as enacted in 1889, and as it now stands, antagonistic to any of the principles- of the federal Constitution as now construed by the United States Supreme Court.

Section 3 (§4290 Burns 1894, §6773 Horner 1897) provides: “In all contracts specified in the preceding section the cost of any street or alley improvement shall be estimated [not assessed] according to the whole length of the street or alley, or the part thereof to be improved per running foot * * * and the city or incorporated town shall be liable to the contractor for the contract price of said improvement, and the owners of lots or parts of lots bordering on such street or alley, or the part thereof to be improved, * * * shall be liable to the city for their proportion of the costs in the ratio of the front line of their lots owned by them, to the whole improved line for street and alley improvements, * * * and the city or incorporated town shall have a lien upon such lots or parts of lots; respectively, from the time such improvement is ordered, for such costs of improvement, collectible as hereinafter provided * * *. Such city or town shall be liable and pay for all that part of such street or alley improvement as shall be occupied by the street and alley crossings, and may order that any part of the total cost of any of the improvement in this act mentioned shall be paid out of the general fund.”

The gist of these provisions is that in providing for the payment for an improvement, the expense of it shall be estimated, that is calculated, by the running foot; the city or town shall be liable to the contractor for.the full contract price, and, to reimburse it, the owners of lots shall be liable to the city or town for their legal proportion of the cost, in the ratio of their several frontage to the whole frontage of the improvement; which liability shall constitute a lien upon abutting property in favor of the city or town from the time such improvement is ordered.

Three things may be noted in these provisions: (1) That the cost shall be estimated by the running foot, not so assessed; (2) that the liability shall relate to the frontage; and (3) that the liability and lien shall arise and attach at the time the improvement is ordered. There is nowhere to be found a mandate that the costs shall be assessed by the frontage rule or that property shall ultimately be required to contribute equally per front foot. The measure of liability and lien here mentioned is only conjectural at most, since they arise before an ascertainment of the facts, by measurement, necessary to their definite determination. The'provision can only mean that the liability and lien, when definitely ascertained by the report of the engineer, as required by section six, as reviewed and adjudged by the common council, as required by section seven 'shall relate back to the time of ordering the improvement.

If we read section three as providing a fixed rule of assessments as contended, the effect is to render section' seven meaningless and nugatory; for it clearly follows that if the rule of assessments is unalterably fixed by section three, the hearing provided for in section seven is nothing more than a cunningly devised illusion which expressly provides that the aggrieved property owners shall have the right to present their grievance to a tribunal that has no power to grant relief. This is mockery pure and simple, and implies insincerity and dissimulation in the lawmakers/ which we can not indulge.

On the other hand, if we read section three as providing a basis for assessments which shall be prima facie correct, and which shall be held to be the true and correct assessments until assailed by the property owner, and shown upon a hearing, by a preponderance of proof, tor be incorrect, or found to be unjust and altered and amended by the common council of its own motion, then we find sections three, six and seven in complete harmony, each effective, and in accord with the other provisions of the act. The intention is to be ascertained by considering the entire statute; and we must proceed as we would with any other composition, construing it with reference to the leading idea and purpose of the whole instrument. The general intent is the polar star by which the meaning of any part is to be determined with a view to harmonizing the entire act. Sutherland’s Stat. Oon. §239.

We therefore conclude that section three, acts 1889 (§4290 Burns 1894) must be construed as providing a rule of prima facie- assessments in street and alley improvements, which allotments by the city or town engineer, under section six of said act of 1889 (§4293 Burns 1894), are subject to review and alteration by the common council and board of trustees, under section seven of said act of 1889, as amended (Acts of 1891, p. 324, Acts 1899, p. 64, §4294 Burns 1894), upon the basis of actual special benefits received by the improvement; and that under said section seven, the common council of a city, or board of trustees of an incorporated town, have not only the power, but it is their imperative duty, to adjust the assessments for street and alley improvements, under said act, to conform to the actual special benefits accruing to each of the abutting property owners.

The further question is propounded: If, in adjusting assessments to actual special benefits received, it shall be found that the total cost of the improvement exceeds the total sum of special benefits accruing therefrom, what provision is made for the excess of cost? It is quite clear that the common council or board of trustees have no power to impair the obligation of contracts, and that some provision must be made for full payment of the contract price for the improvement.

Section five of said act (§4292 Burns 1894) reads as follows: “ * * * The common council of such city or the board of trustees of such town, with the concurrence of two-thirds of the members thereof, may order or cause any or all of the improvements mentioned in the first section of this act, and repairs of any kind of streets and alleys to be made in like manner, without such petition, and either charge and cause any or all of the expenses thereof to be assessed and collected as hereinafter provided, when petition is made, or if it is deemed just and right by the common council of such city or the board of trustees of such town, to cause such expenses, or any part thereof, to be paid out of the general revenue of the city or incorporated town.”

Here is a new power granted the common council and board of trustees to order, by a two-thirds vote, any improvement, as fully as they could do upon a petition, as provided by section one; and when the body chooses to exercise this power, it may elect among three schemes, in providing payment for street and alley improvements. It may either charge the whole expense against the general revenues of the city or town, or it may charge a part against the general revenues and a part against the abutting property, or it may charge all the expenses of such improvement against the abutting property, upon the presumption, which it may for the time indulge, that the aggregate special benefits accruing therefrom will be equal to the total expenses; but it must take notice, when it decides to charge the abutting property, that the expenses shall be assessed “as hereinafter provided” in sections six and seven, which, as we have seen, must' be done upon the basis of actual special benefits received.

Section three (§4290 Burns 1894) provides that “the city or incorporated town shall be liable to the contractor for the contract price of said improvement,” and when a city or town enters into a contract, under the scheme of requiring the abutters to contribute to the cost to the extent of their special benefits, the corporation is bound to know that if it shall be found, upon the hearing provided in section seven, that the accruing special benefits are inadequate to pay the expenses of the improvement, the deficit must be provided for from the general revenues of the city or town. The question of deficit can .not be determined until the comm on council has concluded its hearings and made the assessments. At this stage, the improvement has been completed and the contractor entitled to his pay. It is then too late to halt or retreat. No course is then open to the corporation but to go forward and put into exercise the power conferred by section three and order the deficit paid from the general treasury.

The contingency of a deficit arises from the law, and enters into and becomes a part of the order for the improvement and a part of the contract therefor, and is but a reasonable exercise of the continuing power to pay any part of the expenses from the general revenues when the fact arises that they can not be fully met by the special benefits. The entering into a contract under the scheme of requiring contribution from special benefits to the extent thereof, is an election between methods of payment, and, when once chosen and entered upon, the procedure thereunder, as fixed by the law, is as imperatively commanded as if -.no other existed. The insistence, therefore, that the law contains no mandate that the common council or board of trustees shall, in any event, pay any part of the expenses of such improvements, from the general revenues, can not be sustained.

We are aware that this court has held that when the assessment scheme is pursued in making such improvements, the city or town assumes no primary liability, except for street and alley crossings; and what we here hold is that, as to a deficit only, if any, in special benefits, to meet the costs of an improvement, the city or town sustains the same primary obligation imposed upon it for street and alley crossings.

There is language used in City of Terre Haute v. Mack, 139 Ind. 99, and perhaps in other cases in this and the Appellate Court, not necessary to the decision of any question presented by the record, that appears in conflict with what is here decided, but, in so far as such language may so appear, it is disapproved. The canons of construction compel the interpretation which we have given this act, and so construed it is not obnoxious to any provision of the State or federal Constitution, either under the Norwood-Baker case or the earlier decisions of the Supreme Court of the United States or of this State.

It is proposed by the improvement which affects the appellant to reduce the roadway of the street from seventy to fifty-six feet in width by an extension outward of the sidewalks from fifteen to twenty-two^ feet. The sidewalks have heretofore, under corporation direction, been improved to a width of fifteen feet from the lot lines, the first ten feet paved with brick, and the balance to the curb graded and sodded; and it will be noted from the facts stated on the first page of this opinion that a part of the proposed improvement consists of filling the space between the brick sidewalk and the new curb with “good rich dirt”, to be smoothed.to a grade with the brick sidewalk and new curb, and covered “with good, live, fresh sod.”

The point is made that, conceding the constitutionality of the Barrett law, the ordinance is void for want of power in the common council, under the statute, to assess the cost of filling with rich dirt and sodding against the abutters. The first section of the act (§4288 Burns 1894) provides that the common council may “have the sidewalks graded and paved, or the whole width of the street graded and paved” under the provisions of the act. It may well be doubted if the authority.here conferred can be extended to grading with a particular quality of earth, designed not for the permanency of the improvement but to produce a luxuriant- vegetable growth. We think the words “grading and paving” are employed in the statute in the sense that the surface of the ground shall be made to conform to a regular line by cutting and filling with any sort of dirt suitable to the maintenance of the grade, and which may be most cheaply obtained, and smoothly covering the same with some hard substance, with the single view to'permanency and easy travel for footmen and vehicles.

It is probably true, though we do not so decide, that the common council, in their general dominion over the streets, have implied power to construct lawns, and otherwise decorate those parts of the street not necessary to public travel, at the expense of the general treasury, but when it seeks to exercise the taxing power, and to levy upon a particular class the cost of an improvement, purely ornamental, it must be able to point to some express provision of the statute eonferring the right; no power to tax will arise by implication. Doe v. Chunn, 1 Blackf. 337, 338; City of Lafayette v. Cox, 5 Ind. 38; Slessman v. Crozier, 80 Ind. 487; Gallup v. Schmidt, ante, 196.

The council has express authority of law to require the planting of shade trees at the expense of the abutters (§3541 Burns 1894, §3106 Horner 1897, cl. 46).but it can not be said that this right carries with it the power to construct lawns or other decorations in the streets, and to enforce the cost thereof against the abutters. The power is at least doubtful, “and any fair, reasonable doubt concerning the existence of the power is resolved by the courts against the corporation and the power denied”. Dillon’s Mun. Corp. (4th ed.), §89, approved: City of Crawfordsville v. Braden, 130 Ind.. 149, 152, 14 L. R. A. 268; Williams v. Davidson, 43 Tex. 1, 33; City of Corvallis v. Carlile, 10 Ore. 139; Kirkham v. Russell, 76 Va. 956.

"We therefore hold that the ordinance, so far as it provided for the grading with rich dirt and sodding, as a part of the proposed improvement, was void as being ultra vires, and that the appellant Avas entitled to an injunction against so much of said proposed improvement. Equity will enjoin the exercise of an unauthorized poAver. Sackett v. City of New Albany, 88 Ind. 473, 45 Am. Rep. 467; Board, etc., v. Gillies, 138 Ind. 667, 673; Dillon Mun. Corp. (4th ed.), §914.

If entitled to any part of the relief sought, the demurrer to the complaint should have been overruled.

Judgment reversed, Avith instructions to overrule the demurrer to the complaint.

Baker, J., dissents from so much of the opinion as affirms the constitutionality of the Barrett law.