to be performed for the well-being and comfort of the citizens of the town. It is in the nature of a nuisance, to be removed. And if an ordinance were to require that each owner of a lot in town should remove nuisances from his lot, and on failure to do so the town constable should remove the nuisance, and the party should pay the expense of the work, it would hardly be suggested that the expense so incurred would be a tax. And yet such a case is in principle analogous to the one before The ordinance in question is therefore not unconstitutional on the ground of being an unequal tax.' In Massachusetts and Illinois, statutes containing similar provisions have passed the ordeal of the Courts.2 us. 1 و § 186. In Mississippi, a statute was enacted "to provide for the erection, repair, and preservation of levees on the Mississippi River, in the county of Inaquena, which authorized "a uniform tax, not exceeding ten cents per acre upon all lands lying on or within ten miles of the river in said county, subject to taxation; and a uniform tax of not exceeding five cents per acre on all lands in said county subject to taxation, lying ten miles from the Mississippi River." It was contended that the statute was repugnant to the provisions of the constitution of that State, which declared that "all freemen are equal in rights," and that "no men or set of men are entitled to exclusive, separate, public emoluments or privileges, from the community, but in consideration of public services," and also that "private property shall not be taken for public use with 1 Mayor and Aldermen v. Maberry, 6 Humph. (Tenn.) R. 368. Affirmed in Washington v. The Mayor and Aldermen of Nashville, 1 Swan, (Tenn.) R. 177; Goddard's case, 16 Pick. (Mass.) R. 505, in which the Court upholds an ordinance of the City of Boston requiring the occupants or overseers of lots to remove the snow from the adjoining sidewalks, or in default thereof to pay not less than one nor more than four dollars, was referred to as an analogous case. 2 Lowell v. Hadley, 8 Met. (Mass.) R. 180; Lowell v. French, 6 Cush. (Mass.) R. 223; Morris v. The City of Chicago, 11 Ill. R. 650; and see McInintyre v. State, 5 Blackf. (Ind.) R. 384. out just compensation," and therefore void. tions were overruled by the High Court of peals and the statute sustained.1 2 But these objec- § 187. The idea, in Kentucky, that an assessment of this kind must be made to embrace all the property within the city or ward, in which the improvement is made, seems to have originated from the opinion of a Judge of the Court of Appeals of that State in the case of Sutton's Heirs v. City of Louisville. But that opinion was founded mainly on a clause in the constitution of that State, which is peculiar; and in respect to this point, the opinion was afterwards modified by the same Judge, and the principle in effect abandoned in the case of the City of Lexington v. McQuillan's Heirs. The charter of the last mentioned city contained a provision which authorized the mayor and common council to cause the streets therein to be paved or turnpiked at the expense of the estates fronting such streets, and when the work was completed, to apportion the expense equally among the lot owners. McQuillan's heirs were charged with a sum which greatly exceeded the proportionate cost of the entire work done opposite the lots of ground respectively in the same square, in consequence of a deep cut and stone wall made opposite to their lot; and the Court held, that the apportionment of the expenses was irregular and erroneous, because the ratio of contribution was required by the charter to be equal among the lot owners. But the act was held to be valid and constitutional on the ground that each square, so far as its streets and sidewalks are concerned, might be considered a distinct municipality or local public. Such was the view taken by Ruggles, J., in giving the opinion of the Court of Appeals of New York, in Mayor, &c. of Brooklyn.* 1 Williams v. Commack, 27 Miss. (5 Cush.) R. 209. 2 Sutton's Heirs v. City of Louisville, 5 Dana, (Ken.) R. 28. 3 City of Lexington v. McQuillan's Heirs, 9 Dana, (Ken.) R. 513, 516. 4 The People v. Mayor, &c. of Brooklyn, 4 Comst. (N. Y.) R. 429; Court of 3. Proceedings under authority to Assess. The § 188. We have already seen that in proceedings to take private property for public use, in invitum, and under the provisions of positive law, every requisite of the statute must be complied with and should appear on the face of the proceedings under which the property is attempted to be taken. same principle applies to proceedings under authority to assess for benefits.1 In construing such a statute, the leading rule is to examine all its parts, and, if possible, reconcile and give effect to all its provisions. An interested Judge is, upon principle, incompetent to act and decide and of course unable The body, authorized to appoint the assessors, has, by implication, the power to remove them and appoint others in their places.3 to serve. 2 § 189. If no notice is required to be given by the statute of the time when the assessors meet to make an estimate of the benefits conferred, no notice need be given. Their duties are analogous to the duties of town assessors; and there is no more necessity of their giving notice than in the case of ordinary assessors of taxes. But where notice is required to be given by statute, it must be given as prescribed or the proceedings of the assessors will be void. Thus, where by a city ordinance, the owners of lots bounding on streets were to be 4 Appeals; and see Slack v. Maysville and Lexington Railroad Co. 13 B. Mon. (Ken.) R. 1. 1 Ante, Ch. II.; Barney v. City of Buffalo, 15 Barb. N. Y. Sup. Ct. R. 457; Rex v. Haslingfield, 2 M. & Sel. R. 558; Matter of Hamilton Avenue, 14 Barb. (N. Y.) Sup. Ct. R. 405; Hill et al. v. Mohawk and Hudson Railroad Co. Seld. (N. Y.) R. 152; Flatbush Avenue (Matter of) 1 Barb. (N. Y.) S. C. R. 286 ; 5 Denio, (N. Y.) R. 206; Dunlap v. Mount Sterling, 14 Ill. R. 251; Mitchell v. Kirtland, 7 Conn. R. 229; Hobart v. Frisbie, 5 Conn. R. 592. 2 Nichols v. Bridgeport, 23 Conn. R. 189. 3 Laimbeer v. The Mayor, &c. of New York, 4 Sandf. (N. Y.) Sup. Ct. R. 109. 4 Nichols v. Bridgeport, supra; Curry v. Mount Sterling, 15 Ill. R. 320; Stewart v. Board of Police of Hinds County, 25 Miss. 479. charged with the expense of sidewalks constructed in front of their lots, in case they should neglect of themselves to construct the same, after thirty days' notice so to do, it was held, that a notice requiring the construction of such a sidewalk within seventeen days, would not entitle the city to charge the lot-owners with the expense thereof, notwithstanding more than thirty days elapsed after the giving of the notice before the construction by the city.1 1 § 190. But in a case where it was required that the report of the commissioners should contain "the names of the persons interested in the premises and a statement of their respective interests," and the proportion of the expense of the improvement which each ought to bear," it was held, that a report in which certain lots were designated, not by the names of the owners but by less specific designations, was invalid, because in disregard of the statute, and also for the more general reason that the parties thus indefinitely indicated would be deprived of their property without an opportunity of defending themselves. It sometimes becomes necessary, it was remarked, especially in proceedings like this, in rem, to proceed against persons who are unknown; but Courts have no power to do so, unless the legislature has interposed, and by some sort of substituted service, given the Court jurisdiction over the person. Without some such statutory provision, if any of the owners are unknown, a lawful assessment cannot be made, nor can the Courts confirm such a report without violating one of their most sacred principles of action; that, namely, of giving the party interested an adequate opportunity of being heard in defence of his right.2 1 Washington v. The Mayor and Aldermen of Nashville, 1 Swan, (Tenn.) R. 177; The Owners of Ground, &c. v. The Mayor of Albany, 15 Wend. (N. Y.) R. 374. 2 Flatbush Avenue, (Matter of,) 1 Barb. (N. Y.) R. 286; but see John and Cherry Streets, (Matter of,) 19 Wend. (N. Y.) R. 659; William and Anthony Streets, (Matter of,) Ibid. 678. § 191. Where an act provided, that damages caused by the laying out of streets in a city should be appraised by three judicious freeholders of said city, it was held, that the fact that the appraisers were freeholders, was a jurisdictional fact, which could only be shown by the appointment itself, or the record of it, and, if it did not so appear, the appraisal was void, the want of jurisdiction being an objection which was not and could not be waived by an appeal from the appraisal by the party interested. But, it was further held, the invalidity of the appraisal did not affect a subsequent assessment for benefits, regularly made, under another section of the same act, by a different tribunal. For although it is true that an assessment consists in finding the excess of the benefit over the injury, and cannot therefore be made until it is first ascertained what is the amount of the injury, yet the assessors are not bound to resort to the appraisers to ascertain this fact, but may and must, of necessity, determine it for themselves.' § 192. The constitution of New York contains a provision as follows: "When private property shall be taken for any public use, the compensation to be made therefor, when such compensation is not made by the State, shall be ascertained by a jury, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law." By the charter of the city of Utica, in proceedings to lay out, widen, &c. streets within the city, power was given to the common council to appoint five disinterested freeholders of said city, to ascertain and report a description of the real estate required to be appropriated, with the names of the owners and the recompense which should be made to them respectively therefor, and also to report what, if any benefit each parcel of land would receive. This provision of the charter was held to be repug 1 Nichols v. Bridgeport, 23 Conn. R. 189; and see Williams v. Cammack,. 27 Miss. (5 Cush.) R. 209. |