The special assessment here in question is levied by the City of Lakeland acting under the authority of Chapter 9298, Acts of 1923, which Act provides "for the payment of all or any part of the cost of any such street improvement by levying and collecting special assessments on the abutting, adjoining, contiguous, or other specially benefited property." The bill of complaint alleges that the resolution upon which this assessment is based purports to impose the entire cost of the improvement on the abutting property.
Pursuant to appropriate and competent action by the legislative authority, the entire reasonable and proper cost of a local street improvement may be imposed upon the property specially or peculiarly benefited thereby, provided no constitutional principle is violated in the application or utilization of such a plan and there is no palpable abuse of legislative power. There is nothing inherent in the plan itself which violates constitutional inhibitions.
In levying general taxes, the contribution is exacted in return for the general benefits of government to all. In levying a special assessment, the contribution is exacted because the property of the tax-payer is deemed by the legislative authority to be benefited over and beyond the general benefit to the community, and it is imposed and collected as an equivalent for that benefit and to pay for *Page 389 the improvement in whole or in part. See Dillon Municipal Corp. (5th Ed.), Sec. 1430; Bridgeport v. N.Y. N.H. R. Co.,36 Conn. 255; Gould v. Baltimore, 59 Md. 378; New London v. Miller, 60 Conn. 112; Illinois Central R. Co. v. Decatur,147 U.S. 190, 37 L.Ed. 132. Special assessments proceed upon the theory that when a local improvement confers upon neighboring property a special or peculiar benefit differing materially and substantially from the benefits flowing to the public generally, it is competent for the Legislature to require the property so benefited to pay, either wholly or in part, the cost of such improvement by proportionate contribution to such cost. A. C. L. R. R. Co. v. Gainesville, 83 Fla. 275; 91 So. 118. The purpose for which such assessment is imposed must of course be public in its nature as distinguished from one designed solely for private benefit. The special or peculiar benefit to the property assessed, that is, benefits actually or presumptively received by it in addition, or in a different degree or kind, to those received by the community at large, is the foundation upon which local assessments rest. Dillon Munc. Corp. (5th Ed.), Sec. 1540, et seq. Sec. 2 of Chap. 9298,supra, requires that "special assessments against property deemed to be benefited by local improvements, as provided for in the preceding section, shall be assessed upon the property specially benefited by the improvements in proportion to the benefits to be derived therefrom, * * *." Under this Act, therefore, the cost of a local public improvement of the character here considered may be imposed upon particular property only to the extent to which such property is specially or peculiarly benefited. Any substantial burden beyond that special benefit is unwarranted and illegal. See Norwood v. Baker, 172 U.S. 269; 43 L.Ed. 443. Although the levy of special assessments is regarded as a part of the *Page 390 taxing power, or embraced within it, the constitutional requirement of equality and uniformity as applied to general taxation is generally held to have no application to special assessments, but with respect to the latter it is a fundamental requirement that the basis of apportionment upon the property subject to such special assessment shall be without unjust discrimination amongst those specially assessed. See Dillon Munc. Corp. (5th Ed.), Sec. 1443.
Special assessments for special road, street or other local improvements are frequently burdensome and oppressive in their operation upon the lands affected and consequently upon the owners of such lands. That the legislative power may lawfully authorize them, however, and may direct them to be made in proportion to the frontage, area or market value of the property specially and peculiarly benefited thereby as determined by the legislative power in the lawful exercise of its discretion, is under the decisions, no longer open to question. Mattingly v. District of Columbia, 97 U.S. 687, 692; 24 L.Ed. 1098, 1100; Parsons v. District of Columbia,170 U.S. 45, 42 L.Ed. 943. Where the legislative authority has acted within the limits of its power and the mandates of the Constitution have been duly observed in the exercise of the power, the judiciary possesses no general authority to review and correct apparent injustices of legislative action in matters of taxation unless the exaction is the result of a palpable abuse of legislative power, or there has been a substantially unjust discrimination or other substantial error in executing that power.
By authority of Chap. 9298, supra, where the special or peculiar benefits are substantially equal to the charge, the legislative authority, in apportioning the cost to be borne by the property specially benefited, may impose the entire reasonable and proper cost of the improvement upon such *Page 391 property, even though a secondary or incidental benefit may also result to the public.
That such a plan of apportionment is in harmony with the provisions of the Federal Constitution has been conclusively held by the Supreme Court of the United States in French v. Barber Asphalt Paving Co., 181 U.S. 324, 45 L.Ed. 879. The same doctrine was recognized in principle in Houck v. Little River Drainage District, 239 U.S. 254, 60 L.Ed. 266; Valley Farms v. Westchester County, 261, U.S. 155, 67 L.Ed. 585; Hancock v. City of Muskogee, 250 U.S. 454, 63 L.Ed. 1081; L. N. R. Co. v. Barber, 197 U.S. 430, 49 L.Ed. 819 (a case involving a railroad right of way), and many other cases. See also Bannerman v. Catts, 80 Fla. 192, 85 So.2d Rep. 343; Chicago, etc. R. Co. v. Jonesville, 28 L. R. A. (N. S.) 1124; City of Roswell v. Batemen, 146 Pac. Rep. 950; L. R. A. 1917D 365; Ann. Cas. 1918D 426.
In so far as the question is affected by the Federal Constitution, the Supreme Court of the United States in French v. Barber Asphalt Paving Co., supra, approved the following conclusions of two of our most able text writers on the subject:
" 'The major part of the cost of a local work is sometimes collected by general tax, while a smaller portion is levied upon the estates specially benefited.
'The major part is sometimes assessed on estates benefited, while the general public is taxed a smaller portion in consideration of a smaller participation in the benefits.
'The whole cost in other cases is levied on lands in the immediate vicinity of the work.
'In a constitutional point of view either of these methods is admissible, and one may be sometimes just, and another at other times. In other cases it may be deemed reasonable to make the whole cost a general charge, and levy no *Page 392 special assessment whatever. The question is legislative, however, and, like all legislative questions, may be decided erroneously; but it is reasonable to expect that with such latitude of choice, the tax will be more just and equal than it would be were the Legislature required to levy it by one inflexible and arbitrary rule. Cooley Taxn. 447.' (See Cooley Taxn. (4th Ed.), Sec. 324.)
'The courts are very generally agreed that the authority to require the property specially benefited to bear the expense of local improvements is a branch of the taxing power, or included within it. * * * Whether the expense of making such improvements shall be paid out of the general treasury, or be assessed upon the abutting property or other property specially benefited, and, if in the latter mode, whether the assessment shall be upon all property found to be benefited, or alone upon the abutters, according to frontage or according to the area of their lots, is, according to the present weight of authority, considered to be a question of the legislative authority. 2 Dillon Munc. Cor., Sec. 752, 4th Ed.' " (See Dillon Munc. Corp. (5th Ed.), Sec. 1431, et seq. 1436; 1440, et seq.)
In the Fourth Edition of Cooley of Taxation, in the Chapter entitled "Equality and Uniformity of Taxation," the subject is exhaustively treated beginning with Section 315. In that section it is stated, "It is generally held that even where there is a constitutional provision requiring equality and uniformity, such provision does not prohibit a local tax to pay wholly or in part the expense connected with an Act for the benefit of all the State, but specially benefiting the local tax district." Again in Section 324 it is stated: "Whether the city shall bear the whole expense, or the adjacent property the whole, or, as a third resort, the expense be apportioned between two districts, one of which shall include the whole city, and the other *Page 393 the adjacent property only, must be determined by the Legislature on a consideration of all the equities bearing on the case. See Kansas City, etc. Ry. v. Waterworks Impr. Dist., 59 S.W. Rep. 248; Crane v. City of Siloam Springs, 55 S.W. Rep. 955.
The plan of apportionment by which the property specially benefited is required to pay the whole cost of street improvements has been heretofore approved by this Court in at least two cases.
In Anderson v. City of Ocala, 67 Fla. 204, 64 So.2d Rep. 755; 52 L. R. A. (N. S.) 287, this Court sustained the validity of an Act authorizing a municipality to charge the entire cost of laying sidewalks against the abutting property by the front foot rule.
In Walters v. City of Tampa, 88 Fla. 177, 101 So.2d Rep. 227, this Court sustained the validity of proceedings by the City of Tampa instituted by authority of the same statute here under consideration, Chapter 9298, supra, by which the entire cost of a local street improvement was assessed against the abutting owners by the front foot rule. In construing Chapter 9298, supra, this Court then held, "That the Legislature may create, or authorize the creation, of special taxing districts and charge the cost of a local improvement in whole or in part upon the property of such districts without violating the Fourteenth Amendment to the Federal Constitution. In that case the validity of Chapter 9298, supra, was sustained as against the contention that the Act attempts to authorize a municipality to take property without due process of law, and denies to owners of property in municipalities in this State the equal protection of the law, contrary to the Fourteenth Amendment to the Federal Constitution. The same result will necessarily attend a similar contention based upon the provisions of Sections 1 and 12 of the Declaration of *Page 394 Rights, Constitution of Florida, the latter being our own "due process" clause, and the former being substantially the equivalent of the "equal protection" clause of the Federal Constitution. See Noble v. State, 68 Fla. 1, 66 So.2d Rep. 153. And again, in Carr v. City of Kissimmee, 80 Fla. 754, 86 So.2d Rep. 701, this Court said:
"There are various methods of paying for street improvements. They may be paid out of the general treasury, or assessed against the abutting property, and if in the latter manner may be proportioned according to the area of the lot, or its frontage. The expense of the entire work may be charged against the abutting property, or the city may pay part and charge part of it to the abutting property; it may charge each piece of property with its proportion of the cost of the improvements immediately abutting it, or it may apportion the expense of the entire paving among the owners of all the abutting property in proportion to the number of front feet of each piece. Each of the various methods has its advocates, but it is not for us to determine which is the fairer method, as it is settled in this State that these are matters of legislative discretion, and that the method provided for in the special act known as the 'frontfoot' rule is 'a question of legislative expediency, unless there is some special restraining constitutional provision upon the subject.' Anderson v. City of Ocala, 67 Fla. 204, 64 So.2d 775, 52 L. R. A. (N. S.) 287."
This Court is therefore definitely committed to the doctrine which sustains, as against constitutional objection based upon the "due process" and "equal protection" clauses, the validity of a statutory plan of apportionment by which the property specially benefited is required to bear the entire cost of the improvement, where no unjust discrimination or other abuse of governmental power is *Page 395 shown, and where the special benefits are substantially proportionate to the charge.
As against the inherent validity of such a statutory plan, it is urged that since the improvement must necessarily be public in its nature, it inevitably follows that some portion of the benefit always inures to the public generally, and therefore that unless a proportionate part of the cost is borne by general taxation in every instance it is a denial of the equal protection of the law and otherwise repugnant to constitutional inhibitions. It is undoubtedly true that where the purpose for which an assessment is levied will result only in a general benefit to the public at large, or can not, by reason of its essential nature, specially or peculiarly benefit the property specially assessed to any substantial degree over and beyond the benefit flowing to the general public, a special or local assessment in such an instance is unwarranted. The opinion of this Court in State ex rel. Milton v. Dickenson, 44 Fla. 623, 33 So.2d Rep. 514; 60 L. R. A. 539; 1 Ann. Cas. 122, fully illustrates the principle that a particular district or locality can not lawfully be taxed for the cost of an undertaking which results only in a general public benefit. The same principle was also recognized in Jordan v. Duval County,66 Fla. 48, 66 So.2d Rep. 298, although the Court reached the conclusion in that case that the statute there under consideration did not violate the principle. See also Cooley Taxn. (4th Ed.) Sec. 314; and Steiner v. Sullivan, 77 N.W. Rep. 286.
Since it is indispensable that the object to be accomplished by a special assessment be public in its nature, the element of a secondary or incidentally resultant benefit to the public generally is always present in every local public improvement. This Court, however, has already adopted the principle in such a case that "the mere fact that persons who do not share the tax burden may also be benefited by *Page 396 the undertaking, does not affect (the exercise of) the governmental power. It is not practical or contemplated that public benefits shall be shared only by those who pay the burden thereof." And in County Com'rs of Escambia County v. Board of Pilot Comm'rs, 52 Fla. 197, 42 So.2d Rep. 697, this Court held that even though a harbor lies within the corporate limits of more than one county, the State is not thereby precluded from providing for the protection of the portion of the harbor in one of such counties at the expense of that county. See also Cook v. Port of Portland, 27 Pac. Rep. 263, 13 L. R. A. 533, in which the cost of improving a harbor, imposed wholly upon the territory immediately adjacent thereto, was upheld as against the objection that taxation must be equal and uniform, the reason assigned being that the people of the affected territory would reap the principal benefit from the proposed expenditure. See also People v. Sacramento Drainage Dist., 103 Pac. Rep. 207, in which it is held that the Legislature has the power, notwithstanding the constitutional requirement of equality in taxation to impose the entire cost of reclamation of swamp and over-flowed lands in a particular district on the land owners in the district who will receive special benefits from the improvement, although it will be for the benefit of the people of the State at large. See also State v. Clausen (Wash.), 163 Pac. Rep. 744; Steiner v. Sullivan, 77 N.W. Rep. 286, and the full discussion in Cooley Taxn. (4th Ed.) Sec. 315.
It therefore follows that if the benefits which are peculiar and special to the property specially assessed for the entire cost of a local improvement pursuant to Chap. 9298,supra, are substantially proportionate and equal to the charge against such property, the tax is not rendered invalid merely because some further or additional benefit may incidentally or secondarily inure to the public from *Page 397 the improvement. If well understood procedure is followed in creating the districts and in apportioning and levying the assessments the mere fact that the entire cost, in proper cases, is imposed upon the property benefited is not a violation of constitutional inhibitions.
In some instances, burdens which are unfair in a practical sense, though not amounting to confiscation or even unjust discrimination in a legal sense, may follow the utilization of the statutory plan by which the whole cost of paving a given street is imposed on the abutting property. That result is occasioned, however, not by any vice inherent in the plan itself, but usually ensues from a use of that plan on one street, or set of streets, while on other streets another plan is followed whereby only a portion of the cost is imposed upon the abutting property. But it must be borne in mind that thepower of the legislative authority in matters of taxation is not measured or limited by what is just or equitable or reasonable in a practical sense. When the legislative authority by competent action, and without any abuse of power, has seen fit to impose the entire cost upon the abutters on one street or set of streets, while on other streets only a portion of the cost is so imposed, such confusion in use of the two plans of apportionment, though it may sometimes result in unfair burdens in a practical sense, does not for that reason destroy the inherent validity of either plan. Of course, each plan must be applied proportionately and without discrimination upon the particular project to which it relates.
The true rule to be deduced from the many authorities upon the subject is that whether the entire amount or a part only of the cost of a local street improvement of the nature here under consideration shall be imposed as a special tax upon the property specially benefited are matters of legislative discretion, but subject to judicial relief *Page 398 in cases of palpable abuse of power or of substantial error in executing it. See Hancock v. City of Muskogee, 250 U.S. 454, 63 L.Ed. 1081. Even though an incidental or secondary benefit also inures to the public generally from the construction of the paving of a given street, the plan of apportionment authorized by Chap. 9298, supra, by which the entire reasonable and proper cost of such a local street improvement is assessed against the property specially benefited is, within itself, a valid exercise of the legislative power so long as the special and peculiar benefits inuring to the property which bears the burden are substantially proportionate and equal to the charge laid against such property to pay for the improvement, and provided that in the utilization and execution of the plan the essential requirements of the Constitution and also of the statutes, since the power is executed through a subordinate board, are duly observed, and no abuse of power is shown.
In this case, however, as is stated in the original opinion prepared by Mr. Chief Justice ELLIS, the bill of complaint alleges in substance that although the resolution of the City of Lakeland purports to impose the cost of the improvement upon the abutting property, the complainant's property upon which the assessment here in question is made does not abut or border upon the street to be paved; that complainant's property is assessed for the entire cost of the improvement without reference to the benefits to complainant's property, and that the property assessed is not benefited but is in fact injured by the so-called improvement. These allegations, which are admitted by the defendant city's demurrer, assert, as to the particular assessment against complainant's property, at least a substantial and fatal error in executing the authority conferred by Chap. 9298, supra, if not also an abuse of the power, and are *Page 399 therefore, sufficient to afford a basis for relief against the assessment here in question.
The original judgment of this Court, reversing the order of the lower court sustaining the city's demurrer, is correct and the petition for rehearing should be denied.
WHITFIELD, TERRELL AND BUFORD, J. J., concur.
ON PETITION FOR REHEARING.