City of Detroit v. Judge of Recorder's Court

(after stating the facts). The power of taxation granted by this act is not one of necessity conferred upon the State, involving the right to apportion to each political subdivision of the State its share of the public burdens. The sole ground for imposing a part or all of the cost of a public improvement upon one part of a municipality is that the part burdened with the cost receives corresponding benefits, which the general public does not receive. The rule is so clearly and concisely stated in State v. City of Newark, 27 N. J. Law, 190, that we quote it:

“The theory upon which such assessments are sustained as a legitimate exercise of the taxing power is that the party assessed is locally and peculiarly benefited, over and above the ordinary benefit which, as one of the community, he receives in all public improvements, to the precise extent of the assessment.”

Where a statute authorized the expense of paving a roadbed to be assessed, two-thirds on the property abutting the street, and one-third on the public at large, it was held unconstitutional. Agens v. Mayor, 37 N. J. Law, 415. So a law directing such an assessment as the commissioners should deem “just and equitable” was held *590unconstitutional because it did not direct the fact to be found that the property was benefited to the amount of the tax imposed. Barnes v. Dyer, 56 Vt. 469; New Brunswick Rubber Co. v. Commissioners, 38 N. J. Law, 190. The same principle is approved in the following cases: Stuart v. Palmer, 74 N. Y. 183 (30 Am. Rep. 289); Chamberlain v. City of Cleveland, 34 Ohio St. 551; City of Bridgeport v. Railroad Co., 36 Conn. 255 (4 Am. Rep. 63); Dyar v. Village of Farmington, 70 Me. 515; Hammett v. City of Philadelphia, 65 Pa. St. 146. A multitude of other cases might be cited. We are cited to none holding to the contrary. Applying this rule to this act, it must be declared void. It contains no provision which requires the assessment upon the local district to be in proportion to the benefits received. The common council are not required to determine, when they establish the district, to what extent it is benefited. The jury are required to assess one-half upon the assessment district, regardless of whether it is benefited to that extent, and are clothed with power to assess a larger amount only when they conclude that the benefit exceeds 50 per cent. The legislature has .no power to fix an arbitrary percentage of a public improvement to be imposed upon a local assessment district, regardless of the benefits received.

It follows that the writ must be denied.