I am compelled to dissent from the opinion of my associates in this case, and will briefly state some of the grounds upon which I think the decision should be based.
The evidence offered by the defendant going to show a noncompliance by the contractor with the terms of the contract, was properly excluded, because the general allegation in the answer of non-performance of the contract, without any specication of the particulars wherein the failure consisted, did not entitle him to have the evidence admitted; but not because the performance “ under the direction and to the satisfaction of the Superintendent ” was conclusive upon the lot holders. The performance of the contract is the condition precedent to the making of the assessment and the issuing of the warrant, and although these may be made and issued upon a performance to the satisfaction of the Superintendent, yet when the assessment and diagram are made and the warrant issued, the law accords to them only the quality of being prima-facie evidence of the regularity and correctness of the assessment and of the prior proceedings, etc. If they are conclusive evidence, it was idle to declare them prima facie evidence. It cannot with propriety be said that they constitute prima facie evidence only when jurisdictional acts and matters are drawn in question, for in the absence of any legislative declaration that those documents shall constitute only prima facie evidence, no conceivable number of those or similar documents could amount to more than prima facie evidence of the jurisdictional facts upon which depended the authority of the city to order the proposed work to be done.
If the conclusive effect claimed for them is justly due, it would seem that the Legislature had put the contractor to the useless trouble of procuring the judgment of a Court, that the sum specified in the assessment and warrant is due when the same papers are conclusive evidence—and a judgment is no more—that the sum specified therein is due to the contractor.
*95The personal judgment against the lot holder I do not think can be sustained upon any constitutional theory. The seventeenth section of the Act of 1862, it is true, authorizes it; but in my opinion, the section is in conflict with some of the plainest constitutional provisions, that were designed for the protection of the citizen against the exercise of arbitrary and unrestricted power by the Government, A charge that is nominally cast upon property, but which, at the same time, is made to constitute a charge upon the person, cannot be disguised under the name of an assessment, for it is essentially a tax in the larger sense of that term. The cases treating of this matter, cited in Emery v. San Francisco Gas Company, hold an assessment, such as is mentioned in the thirty-seventh section of Article IY of the Constitution, providing for the organization of cities and towns, to be a charge imposed upon property to pay for certain works and improvements constructed in the immediate vicinity of such property, and which is supposed to receive some particular benefit over and above the general mass of property in the city by the construction of such improvements. Where a personal liability for the payment of the assessment is superadded, the assessment becomes, in effect, a charge upon all the property of the person who owns the property on which the assessment is nominally charged,, and this is thus transformed into a tax in the sense of that term as used in the clause of the Constitution providing “ that taxation shall be equal and uniform throughout the State.” While working under the general system of taxation for State, county or city purposes, that provision controls and restrains every department of the Government— whether principal or subordinate—assuming to exercise the powers of taxation, and it cannot readily be conceived that a power so dangerous and peculiarly liable to abuse as that claimed for cities in levying assessments could have been granted to them. Under the constitutional restriction just cited, in levying taxes for State, county or city purposes, the authorities are limited torn tax of one hundred per cent upon the value of the property subject to the tax, while the city in *96levying and collecting the assessments, under the Act of 1862, according to the construction claimed, may exhaust the whole property charged with the assessment, and if the lot holder is so unfortunate as to own a lot adjacent to an expensive improverment, he may, instead of realizing the benefits presumed by the law to accrue to his property find himself a hopeless bankrupt. In my opinion, the plaintiff is only entitled to judgment enforcing the lien.