Speaking of the class of laws, to which that now under consideration is admitted to belong, my learned brethren concede that the case of Livingston v. The Mayor, &c. of New- York, (8 Wend. 85,) “ affirmed, as far as such a judgment could affirm, the validity of these laws.” It is admitted that if decided upon sufficient reasons, that case is conclusive upon this court. I must be permitted to hold that authority binding and conclusive upon this court, unless it can be made perfectly manifest that the principle upon which the decision was made, was false and contrary to law. It is said that in his opinion in that case, the chancellor assumed at once the whole ground of controversy, and spoke of the right to make compensation in the benefits, as a well established principle. If the chancellor assumed a well known and notorious fact, it can not weigh against the force of that fact, that he did not deem it worth his time or that of the court of which he was a member, to prove its existence. That it was so notorious will appear, I think, from the statement in the opinion of Mr. Justice Brown in the present case, that “as early as the 16th of April, .1787, the like power was given by an act passed at that time, to the mayor and common council of the city of Hew-York, and under the authority of similar legislative acts it has been exercised to a very considerable extent in the cities and villages of the state *563from that time to the present.” The constant and unvarying opinion of the legislature, and of the judiciary, for more than forty years, that the principle in question was sound, and its application legal, must have been known to every member of the court of errors. The application of the law was as familiar in the city of New-York, as the provisions, and their application, of the road act in the country. It was a principle which had been adopted and acted upon by the legislature for more than forty years. It had been constantly administered and enforced by the judiciary for the same length of time. This was notorious. The case came from the supreme court which had affirmed the proceedings, and the court of errors unanimously affirmed the judgment of the supreme court, upon the ground that these laws were consistent with the constitution. The question whether these laws are constitutional, was fundamental in that case—was deliberately considered after argument, and their constitutionality unani-mously sustained. The chancellor certainly was justified in assuming as a fact that the principle was established both in the legislative and the judicial departments of the government. My object is not to vindicate the chancellor, but to show why this court should not overrule the solemn and unanimous decision of the highest tribunal in the state, deliberately pronounced after hearing argument from the ablest men then at the bar of our courts. It is said, however, that “ where a law is found to be in conflict with the organic law, neither the antiquity of its origin, nor the sanction of custom and common usage can save it from the judgment of judicial condemnationand the question must be decided by this court—whether the law under consideration is in conflict with the provisions of the constitution of the state ?
The principle now supposed to be in conflict with the constitution was adopted into the legislation of the state as early as 1787, and from that time was continued down to 1821, when the second constitution was formed and adopted. For the present, it is not material to inquire whether the system of legislation in question was adopted as a regulation of the internal police of the state, and a mode of taxation incident thereto, or what it was. It was an institution in existence in 1821, and *564had been for more than thirty years. It was a complete system of statute law familiarly known to the legislature, the profession and to the courts. It was as fixed and notorious a fact upon the face of the statute book, and in the body of the law of the state, at the time of framing and adopting the constitution of 1821, as was the institution for the maintenance of the poor, with its incidents. It was a part of the body of the law of the state. These laws have been continued to the present day—more than sixty years. They were constantly acted upon up to the time of adopting the constitution of 1821, and without a suspicion at that time of their invalidity, and they have been acted upon ever since. Millions of dollars have been paid and invested upon the faith of these laws, even in the city of Brooklyn, to say nothing of the city of New-York, and other municipalities. In 1821 a law was passed by the people in their highest sovereign capacity —by them personally—which became the supreme law of the state. This law was in no respect different from a law of the ordinary legislature, except that it could not be repealed by that body, and any enactment thereof repugnant to it would be void. It was the constitution—the fundamental law of the state, but it was in the same language as all other laws—to be read, interpreted, and construed like all other laws. If a doubt be suggested of the meaning of any passage in the constitution, we must apply to it the same rules of interpretation or construction as we apply to the interpretation of any other statute; no one doubts this. In 1821, the supreme legislature of the state—the people in their sovereign capacity—without the machinery of representation, enacted “that private property should not be taken for public use without just compensation.” Did this repeal the laws in question ? If my learned brethren are right in their interpretation, all of this class of laws then in existence were by the adopting of that constitution, ipso facto repealed. If they were so repealed, it is because the framers of this clause, and the people who passed it, intended their repeal. Is there any evidence of any such intention ? Let us examine the words, and see whether in their obvious and plain sense they import any such intention. Property in its true meaning, and in its general *565legal import, includes lands, tenements, hereditaments, and commodities— that, the value of which may be measured by money. It can not mean money, in this provision of the constitution, without involving the doctrine that money can not be taken of the citizen by way of ordinary taxation, without just compensation. And as it is insisted that the constitutional compensation is compensation in money, the absurdity would follow that in every case of a tax of ten dollars or any other sum taken from an individual, the government must return him the like amount in cash. We always in common conversation speak of property and of money—the one as that which constitutes wealth, the other as the measure of value and the representative of wealth. If a commanding general were to take possession of land for entrenchments, or of horses and wagons to transport his troops, or of meat and corn to feed them, from private persons, this would be taking property—private property, for public use. If he were to take money from an individual, to procure provisions and the like, this would be called a forced loan, or a benevolence or gift, according to the form which he might choose to give the transaction. I think there is no ground for saying that the words import the taking of money, within the intention of the framers of the clause of the constitution under consideration. It is apparent from the learned opinions of the majority of the court, that they feel the force of the argument to be so strong from the mere reading of the words, as to require a refined interpretation, by which is given to the word property the very broadest signification in which it is ever used when applied to anything exterior to the person. Because money in common with lands and commodities, is proper to its owner, it is said to be property. That a man has the same dominion and power over his money as over his lands and commodities, can not be doubted. But if the word property has a signification which includes lands and commodities, and excludes money, as well as a signification which includes money with lands and commodities, then we have to answer in which of these two senses is the word used in the constitution. I have already shown from the case of taking money by way of taxation, that it could not apply to, or be intended to include, the taking of money. *566If it does, we must say in relation to all laws levying taxes, that being found in conflict with the organic law, neither the antiquity of their origin—and they are very ancient—nor the sanction of custom and common usage, can save them from the judgment of judicial condemnation. That no such severe alternative is really presented, I think will appear evident from what I have already said, as well as from the consideration that these laws, at the adoption of the constitution of 1821, were in full force, and acted on as valid laws, as they had then been for upwards of thirty years. They continued upon the statute book, and to be acted upon immediately after, the same as before the adoption of that constitution, and no one of the learned and able men who framed that instrument, or of the people who adopted it, understood that these laws were repealed by it. Spencer and Kent, who down to that period had administered these laws, and Kelson and Sutherland, who from that period continued to administer them, were members of the convention that framed the constitution of 1821. As far as I can perceive, the discovery of the intention of the framers of the constitution of 1821, as now expounded, was wholly unknown to every member of the convention that framed that instrument, when they submitted their work to the people— to the people who then adopted it—to the courts which acted under it, and even to the profession of the law, until the question was raised by counsel celebrated for great ingenuity, in the case of Livingston v. The Mayor, &c. of New- York, in 1831. It was then fairly and fully raised, and as was believed, as fairly and fully decided by the unanimous opinion of the court of errors, affirming the unanimous opinion of the supreme court, and in conformity to the opinion of the chancellor of the state. This grave constitutional question then had, at least, comparative rest, until the wisdom of the people called together another council of the state, again to consider what improvements could be made in their organic constitutional law. In 1846 a convention consisting of men of the highest intelligence and most approved virtue, assembled and formed a new constitution. There were some who had been judges, and many lawyers, in that body, no less distinguished by their probity than their learning and general *567intelligence. A proposition was distinctly made in that convention, “ that no assessment for any improvement in any city or village, shall be laid, otherwise than by general tax upon the taxable property of such city or village, levied and collected with an annual tax for other expenses.” (See Debates in Convention, Atlas ed. p. 463, § 2 of the proposed article ; also Nos. 66 and 67 of Doc. of the Convention and Journal, pp. 581 and 1461.) This proposition was aimed directly at the system of laws now brought in question. The mover declared that he presented that, with his other propositions, because the article submitted by the majority of the committees of which he was a member, and in the minority, “ did not go to the root of the evils growing out of the defects of our present system of municipal corporations.” The article submitted by the majority, adopted by implication the system of local assessments, and regulated it. No one seems to have thought the system unconstitutional; but one member thought it inexpedient, and sought to repeal it, and to prohibit any future legislation upon the old principle. He termed these laws collectively “ the present system,” thus not only recognizing their binding obligation, but truly declaring' them a system—an institution of the state. Notwithstanding the matter was thus brought distinctly before that body as a valid—though in the opinion of some members an unwise—system of law, still the convention refused to interfere with it. Those learned, able and experienced men, who were then assembled, were aware of the existence and antiquity of this system of. legislation—of its being sanctioned in every possible form by all the courts of the state, including that of last resort, and yet when the question was distinctly put to them, whether it was, on the whole, such a system as ought to remain, solemnly refused to abrogate it. Clearly not because they deemed it void, but because they deemed it unjust or inexpedient to interfere with an institution so long in existence, and under which so many millions of property had been regulated. But though they refused to destroy the system, they deemed it one requiring revision, and therefore upon the motion of the same member, adopted the ninth section of the eighth article of the constitution as it now *568stands, imposing the duty upon the legislature to restrict the power of assessment by cities and villages, in order to prevent the abuses which had grown up, in assessments. The adoption of this clause not only repels most conclusively the idea of an intention to include within the term “ private property” the assessments for municipal improvements, or of an intention to repeal the system, but distinctly recognizes both the power of the legislature over the whole subject, and the existence of the system as a valid one.
In relation to the clause of the constitution under consideration, and particularly as to the word “ property,” it is also to be observed that it is an universal canon of interpretation that words are to be understood in the sense in which they are used by the writer or speaker, even though that sense be new. If, therefore, the word property had no previous signification which made it only applicable to lands and commodities, still it would be perfectly evident from the reflections above submitted, that in the clause of the constitution under consideration it had that restricted meaning.
It is quite sufficient for sustaining the conclusion to which I have come, to show that the framers of the constitution of 1821, had no intention of repealing the laws then in existence authorizing these local assessments. But if shown, as I think it already is, that the framers of the constitution of 1821, as well as that of 1846, had these laws present to their minds, and actually intended not to repeal them, or prevent the passage of like laws in future, as exigencies should require them, more emphatically the proceedings below ought not to be set aside. It is due, however, to the magnitude of the question, that I should state my views of it independently of the controlling consideration, that the principle is as fixed as the constitution itself; and give the reasons of my opinion that these assessment laws, so called, are otherwise within the scope of legislative power.
Certain general principles must be borne in mind in this connection. All highways are the highways of the people of the state, in their sovereign capacity. They are among the first necessities, and are the indispensable conditions of civilization. *569Bridges were ranked as one of the three necessaries of society by our Saxon ancestors, when laying the rude foundations of-our present civilization. They were sufficient for their simple purposes. Having the bridge to cross the stream, they could perform journeys upon very indifferent roads. Bridges were, as we should from the reason of the thing expect, the first productions of art and heavy labor, as applied to the construction of the highways of civilized life. Highways, whether urban or rural, have been developed as civilization has advanced.
Taxation is a necessary inherent power in every government. The aids of the citizens must be levied in some way to carry out the objects, and attain the ends, of government. Every species of aid to the government for any of the purposes which it has a right to accomplish, is generally classed under the taxing power. A strange confusion of ideas seems to have obtained on this subject, even where great clearness of apprehension is usually met with, arising from a forgetfulness that all words of any value, in a living language, are constantly used in different senses, and require always to be understood in the sense in which they are used in the particular instance under consideration. Now the term “taxing power of the government,” means that power of the government which enables it to compel the citizen to aid in accomplishing its proper ends by some fixed rule which is a law of the land. The exaction of labor upon the highways is just as much an exercise of this taxing power as the levying of money for the support of the poor. The power of taxation is therefore the power to compel by fixed and certain rules or laws, the citizen and the property within the jurisdiction of the state, to aid the government in its appropriate purposes, and in securing its lawful ends; one of which is to secure the establishment and repair of highways.
For purposes of distinction, the legislature of this state have used the word taxes to denote the exercise of the general power of taxation in the collection of money for general purposes, and in the compelling of aids by enforcing labor upon highways, and they have denoted the exercise of the same power—precisely the same in all its essential qualities and characteristics—when *570applied to improvements of a public nature in cities, by the term assessment. Hence the courts have said In the matter, &c. of New- York, (11 John. 77,) that when the legislature exempted church property from taxation they had in mind this subordinate division of public aids—coming under the general power of taxation—into taxes and assessments—and did not intend to exempt that species of property subject to local improvements, from that peculiar mode of taxation. So in the case of Sharp v. Speir, (4 Hill, 76.) All that the court determined in those cases was, that the local assessment was not a tax within the meaning of that word as used by the legislature in the acts under consideration. It certainly answers all practical purposes, in denoting the power in question, to call it the power of taxation, though it would be a more accurate classification to say that it was the power of the organized government to compel the contribution by fixed and prescribed rules, of all necessary aids to enable the government to attain its just ends. This definition of course treats the government as made up of all its organs and ministers, forming that public authority to be aided.
The state of Hew-York has from its earliest known history, been divided into small districts for the purpose of the aids to the government in maintaining the public highways. This has always been the system in England. It is peculiarly Anglo Saxon. That this is a matter of public concern to the whole state is evident, first, from the fact that the system is organized and enforced by general laws; second, from the practice of the legislature, when, from any cause, the local administrations do not supply the public wants, it steps in and orders the thing done at the expense of the same localities which ought to have done it. An instance of this kind is found in the laws of 1845, chapter 198. How there is no reason for saying that taxing a town for the establishment of a new road, or a small district for the repair of roads, is not taking private property for public use, but is taxation, and yet that to tax a district in a city for the like purpose, is not taxation, but taking private property for public use. Where can we stop, if we dq not regard the *571boundaries of road and street districts as ascertained under the laws of the state ? If it be unconstitutional to make districts in a city to tax for the grading of its streets, by what authority can a road district in the country be compelled to do the same thing ? This whole system of districts for all purposes, proceeds upon the ground of local benefits and advantages. It is in general adapted with a commendable accuracy as regards the principles of natural justice and sound public policy. It upon the whole works out an equal and just distribution of public burdens in proportion to the benefits conferred by the public on those who bear these burdens.
It is just that the state should pay for an arsenal for the state—for its capítol—and for all those objects of expense which concern—to an approximate equality—the whole state. The inhabitants of each small district in the state are compelled to keep in repair the highways in their districts: and this from the obvious convenience and ultimate exact justice of the thing. The inhabitants on, or very near a particular highway, have an immediate interest in its preservation and repair. It is easy and convenient for them to work it and to preserve it. Those at a greater distance have the same interest in the highways of their own neighborhood, and the same facilities for their preservation and repair. The inhabitants of any particular district, generally speaking, are more competent to judge of the necessity of new or additional highways, than others could be, while the inhabitants of distant districts have no immediate interest in the roads of each other. From these and like causes it has always been held expedient and right that highways in all their forms should be established and maintained at the expense of small districts within which they are located, or through which they pass. The interest and convenience of highways to a neighborhood, have been considered sufficient reasons for compelling these neighborhoods to maintain them; because, in the language of the statutes as applied to highways in the city of Brooklyn—if the particular district be benefited by the improvement, that is, the highway, the district so benefited shall pay for it. This is the true reason—the only conceivable reason *572which can justify these local taxes. The principle adopted is— parties shall pay according to the benefit they derive from the highway; and this system being uniformly acted on, it comes out in the end that the state, in its sovereign and corporate capacity, has highways in every part of its inhabited territory, and that every part of that territory has borne its just part of the expenses—each district having been burdened, assessed or taxed according to the benefit it derived from the improvement for the highways within its limits. It may happen that in one district of the state it will be only at great expense and labor that a highway can be constructed or kept in repair. Yet because the people there inhabiting are benefited by it, they must bear the burden according to the benefit they receive. The inhabitants of the most rugged part of Putnam county, where great labor and expense is required to make and repair their roads, being specially benefited by these roads must bear the burden of making them. They can not call for aid upon the inhabitants of those parts of Long Island, where it is scarcely necessary to do more than to travel over a strip of land to make it a good road.
The people of the city of Hew-York, and the legislature in 1787, supposed that this principle might be justly applied to that city, and that the districts in which particular streets were to be opened and regulated for public use, being undoubtedly benefited in as great a degree, and in the same way as the country road districts were benefited, should bear the burden in the same manner. It is difficult to find any fault in their reasoning. By opening a street through a farm, that land which before was only valuable for farming or horticultural purposes, would become valuable for building lots, city residences, and places of business. The particular district fronting on this street would be immediately benefited; the benefit to any other location of the city would be very small—no more than it would be to the owner of a farm in Queens county to have a road opened and worked in Putnam.
This was the view of the matter which doubtless led to the laws under consideration. It was clear enough that these dis*573tricts along the respective streets would in most cases, and in a very short, time contain as many inhabitants as would be found in some of the smaller or more sparsely inhabited towns in other counties; and there was therefore no objection to charge these districts with the expenses of these highways; the laying them out and fitting them for use benefited those—and, in any appreciable degree—those only, who owned land to be affected by the improvement. When the streets were once laid out and opened and regulated for use, it was deemed more convenient to leave their repair to the whole city, so that the permanent organization of highway districts was not necessary. Thus, the occasion only requiring the district for taxation to be ascertained for the temporary purpose of levying and collecting a single tax, it was well enough to have the district fixed by men legally designated for the purpose, upon the only principle of the benefit to be derived from the improvement—the outer limit of appreciable benefit to be the limit of the district; and as it was necessary that the benefit to be derived by those whose property was affected by the improvement, should be considered in order to form the district, it was proper to let the same body of men who determined the district also lay the tax—that is, make the assessment. There seems in all this nothing but taxation, and taxation upon a very old and familiar principle, clothed, to be sure, with some new words and phraseology in its name, and attended with some new circumstances, neither of which, however, affecting the principle in any degree whatever. There appears nothing unfair in this mode of taxation, but on the contrary one can hardly conceive a more just and righteous idea than that the burdens of supporting the government should always be borne according to the benefit received from the operation of the government. He who has a large amount of property to be protected, certainly derives a greater benefit from the protection of the government than he who has but a small amount, and is made to pay more for such protection. This is the theory of all just taxation—■ imperfectly realized, perhaps, as all human theories are—yet the one intended to be carried out, and acted on, by all good men in the community. To attempt to realize perfectly in practice this *574idea of-justice may be often impracticable, but can be hardly considered as outside the pale of legislative power. The legislature may attempt to bring taxation to a standard of justice— even though it he a refined justice, and the mode of doing so is legitimately within them determination. It was thought that by the ordinary mode of taxation upon the owners of property within these street districts, of a uniform per centage upon the value of the property within the district, great hardships would frequently he inflicted, upon individuals;—that in many cases it would happen from the peculiar circumstances of the location of lands,—the lines between adjoining owners—and various other causes, that one man would be more benefited than another, although the taxable value of their land might be the same. If the value of the land before, and without the street, were considered, it would often happen that within the district there would be two parcels of land of nearly, or exactly, equal value, owned by different persons, and that one of the parcels would be benefited many hundred per cent by the new highway, while the other would not be benefited at all, or very little. To approximate justice, the tax for opening the street must be laid as if the street were opened. But still, if it were a tax of a rate per cent upon the value of the property within the district benefited, it would not work out any thing like exact justice, because it would happen that some of the property within the district benefited would be so situated, having fronts on another highway already open, as to be much less benefited in proportion to its value, than other property which had no such front, except on the new street. As it was already established throughout the state that these improvements should be made and maintained by those who were deemed to be benefited by them—being those in the immediate neighborhood of them—it was expedient to carry out this principle one step further and ascertain how, and in what proportion each individual whose property was affected by the improvement, would be benefited, and to lay the burden or tax upon him in that proportion.
For ordinary purposes, in the country, it had always been deemed a sufficient approach to this exact justice to lay the bur*575den in the more ordinary form of taxation by a per eentage upon the taxable property in the district which by law had to bear the burden. This, no doubt, was as near an approach to exact justice as could well be reached there by the necessary forms of law. In most cases, in cities, there would be no personal property in the district which could be called upon to defray the expenses of opening and regulating new streets. The land upon the street is what would receive the enhancement of value by the improvement; it was therefore just and equitable that the land should be charged—that is, taxed—with the expenses of the improvement. This principle, therefore, adopted by the legislature at a very early period, I mean the principle of local assessments, can not be distinguished in a single essential property from local taxes. The phraseology employed seems to me only intended to mark the circumstances which were peculiar to the subject matter of these laws, and to give a name to a taxation, not differing in kind, but in its forms of application from thar generally applied throughout the state.
The term local taxation, moreover, is merely one of convenience, to designate taxation upon a region less than the whole state. It is one of the modes in which the taxing power of the state is exercised. The forms of using that power must necessarily rest in legislative discretion, and can not be interfered with unless they violate some constitutional right, or principle of justice. Mr. Justice Barculo, however, lays down a rule, as applicable to this power when exerted upon any locality less than the state, that “ the tax must be co-extensive with the district, or in other words it must be laid on all the property in a district which has the character of, and is known to the law as a local sovereignty for certain purposes.” That the tax must be co-extensive with the district, may be true. But that in order to constitute a lawful or constitutional tax, all the property in the district must be taxed, will be sufficiently shown to be an error, by the consideration, that no one has ever doubted the unqualified right of the government to impose a tax for any legitimate purpose on land only, when it is called a land tax, or to exempt the property belonging to various public bodies, institutions of *576learning, churches, and clergymen, within the district of taxation. Nor is it apparent how the liability to taxation, requires the possession of any sovereign power. It is usual to take certain civil divisions of the state for the purposes of a more convenient administration of the taxing power. Every possible exercise of that power grounds its authority in the eminent domain of the people of the state, in their corporate and sovereign capacity. That high dominion is exercised by the supreme and central legislature. Its administration may be committed to such subordinate bodies as the legislature may deem proper, and be administered upon such principles of justice as it may prescribe. If the legislature require a court house to be built in a certain county, for the courts of the county, it is strictly for a county purpose— it is for the benefit of the county. The district taxed is practically the district benefited, and it is convenient to lay the tax in this way. But the fact that the same district has the delegated sovereign power to tax itself for the support of the poor, does not establish, or affect the liability of the inhabitants to be taxed for a court house. Neither are all local taxes for local purposes. The general terms of this court for this district, are held only in Brooklyn and Poughkeepsie, and the counties of Kings and Dutchess are taxed for the expenses of rooms, light, stationery, fuel and attendance. These are not local to those two counties. They are for the benefit of the nine counties of the second judicial district, and to a considerable extent of two counties of the third. Yet these burdens are imposed by the legislature of the state upon localities, while they are for general purposes.
I have thus far considered the system of districts for the purpose of single taxation and of taxation according to benefit, as if they were peculiar to city organization; but such is not the case. In fact, the grounds upon which assessments for urban improvements, under our laws, are denied to be local taxation, present themselves with equal force against our system for maintaining rural highways, and, if admitted, must overthrow our whole road system as unconstitutional.
The commissioners of highways annually divide their respective towns into so many road districts as they judge convenient, *577and assign to each of the districts, such of the inhabitants liable to work on highways, as they think proper, having regard to proximity of residence, as much as may be, and the overseers, as often as they deem necessary, warn all persons assessed to work on the highways, to come and work thereon with the proper force and implements. (1 R. S. 502, § 1, sub. 5, 6, 7.) The towns, not the road districts, elect the overseers of highways for the districts. (1 R. S. 340, § 3.) Here we have an example of small districts, and they may be as small as the commissioners of highways choose to make them, annually determined on, and established for a year only, for the sole purpose of compelling the inhabitants to contribute their aid to the maintenance of the highways of the state. It is difficult to see how any one of these districts, as such, “ has the character of,” or is “ known to the law as a local sovereignty for certain purposes.” They exercise no act, in the nature of a corporate or sovereign act. It will hardly be thought that the passive capacity of the inhabitants, or part of the inhabitants of one of these annually established road districts to be compelled to work on the highway, will erect the district into a local sovereignty. It has been pressed as a consideration of great weight, that in the case before us one person is charged with half, or nearly half, the entire expense of the whole improvement, and that the amount is very large. It might not be deemed a very great hardship upon a farmer who happened to own half the land and other estate in a road district, as the relator in this case does within the assessed district, to be compelled to do half the work upon the roads in his district. It would be just, and most of those who escaped with far less exactions of labor, because of their small estates, would probably not object to these burdens if they could have the estates which caused them. Another striking analogy between the institution ■of road districts in the country, for the maintenance of highways, and the districts erected temporarily in cities for the making of streets, is that the commissioners in the one case in assigning to each of the districts in their town such of the inhabitants liable to work on the highways as they think proper, are to have “regard to proximity of residence as much as may be;” thus *578is clearly recognized the fundamental notion of benefit, as entering into the principle upon which the aid is exacted, and as a reason for the establishment of these small districts for the purposes of this peculiar taxation. But the provisions in relation to the taxation of the lands of non-residents, for these purposes, present the analogy still more forcibly. “ Persons owning or occupying lands in the town where he or she resides,” and the male resident inhabitants of the town over twenty-one years of age, are to be “assessed to work on the public highways.” (1 R. S. 506, § 19.) And the lands of non-residents of the town are to be “ assessed no more than one quarter of a day’s labor, upon every hundred dollars of such valuation.” (Id. 506, § 24, sub. 4.) Then follows this provision in subdivision 5: “ but no such noñ-resident tracts shall be assessed, unless the same will, in the judgment of the commissioners, be enhanced in value by the highway labor so assessed.” Here is an explicit adoption of the assessment principle. The commissioners are not to proportion the burden according to the value of the property, until they have ascertained that the owner will be benefited by an enhanced value of his land by the labor to be contributed. The legislature take it as an established fact, that the inhabitants of a road district are benefited by the maintenance and reparation of the roads there, and, because they are so benefited, compel them to work on such roads, They take as an established fact, that the resident owners or occupiers of land, are more benefited than those who have no land, and make them contribute work in respect of such land over and above what they are to contribute in respect to their persons. That a non-resident who owns land in the district will be benefited, is not taken to be an established fact, but a matter of doubt; and so the question is submitted to the commissioners to determine whether his land will be enhanced in value by his labor upon the highways. If it will, then he is to be assesssed for this benefit— this enhanced value.
In a case like that before us, we are not at liberty entirely to disregard consequences. This is a question of property, not of life, liberty, or reputation. Whether correctly, or incorrectly *579adopted, these assessment laws have become a rule of property for all the cities of this state. It was said that in Brooklyn alone, a quarter of a million of dollars are due to contractors, and to be collected upon assessments, for improvements contracted for upon the faith of the assessment laws; take all the cities and villages of the state together, and the amount is probably millions. If these laws be declared unconstitutional, who will lose this amount 1 By the decision of this court, the corporations are not liable, inasmuch as they are merely the agents or instruments to put these laws in motion; they being trustees for that purpose, the citizens at large have no interest in the improvements for which the assessments were laid, having respectively paid for their own, and therefore, on principles of justice, can not be called upon to contribute towards the expenses of others. The loss must probably fall upon the contractors, those who, upon the faith of the laws, and of an uniform practice under them by all departments of the government, have embarked their means in these works; while the gain will be to the owners of the property benefited by the improvements-—■who would lose nothing if they pay it, because their property has not been required to contribute for improvements on other streets. Whether the assessment system be a wise one or not, is for the legislature to determine; but if they determine against it, the operation will not be retroactive.
I am, for the reasons which I have now stated, compelled to the opinion that the provision of the constitution, not against taking private property for public use, but for providing compensation to be made when it shall be taken, does not apply to the laws in question, and that the proceedings of the common council should not be disturbed.(a)
Assessment vacated, and proceedings set aside.
The Reporter is requested by Judge Morse to state that, although, in the case of The People, ex rel. Post, v. The Mayor, &c. of Brooklyn, (6 Barb. 209,) Judges Morse and McCoun concurred in reversing for irregularity, they did not assent to the opinion delivered by Justice Barculo.