ON REHEARING.
(20) There are two sufficient reasons for not considering the propriety of the order of the trial court taxing the costs against the property owner. The question was not properly presented. The cross-assignment of error is based on the following recital in the judgment-entry immediately following the order taxing the costs: “The defendant in open .court then and there duly and legally excepted to the judgment of the court in thus taxing the costs against the defendant.”
And after examination of the bill of exceptions we find nothing in it showing that such exception was reserved, and the recital in the judgment that an exception was reserved is unavailing.—Dorough v. Harrington, 148 Ala. 305, 42 South. 557; Hoge v. Herzberg, 141 Ala. 439, 37 South. 591.
Where costs are improperly taxed against one not liable to pay them, the proper practice is to raise the question by motion to retax the costs, and, if this motion is overruled, reserve a bill of exceptions and appeal. — Code, § 3684; Stallworth v. State, 129 Ala. 118, 30 South. 31.
(21) The second reason is that by the reversal of the judgment the judgment for costs was also annulled, and the question" *551presented by the cross-assignment of error became a moot question.—Pulsifer v. McDaniel & Son, 169 Ala. 644, 53 South. 772.
(22) Special or peculiar benefits, within the meaning of section 223 of the Constitution and of section 1373 of the Code, simply mean the increase in the market value of the property resulting from the improvements, and the fact that the improvements may have the effect to increase the value of all other property in the immediate locality does not change the result. The plain purpose of section 223 of the Constitution, which was suggested by the case of Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443, is that the property shall not be taxed for such improvements materially in excess of the actual benefit resulting to the property from the improvements. In that case it is said: “Undoubtedly abutting owners may be subjected to special assessments to meet the expenses of opening public highways in front of their property; such assessments, according to well-established principles, resting upon the ground that special burdens may be imposed for special or peculiar benefits accruing from public improvements. * * * ‘The justice of demanding the special contribution is supposed to be evident in the fact that the persons who are to make it, while they are made to bear the cost of a public work, are at the same time to suffer no pecuniary loss thereby; their property being increased in value by the expenditure to an amount at least equal to the sum they are required to pay.’ ”
And in City of Decatur v. Brock, 170 Ala. 153, 54 South. 209: “The restriction placed by the Supreme Court of the United States upon the amount of the assessment, and with which our Constitution was intended to harmonize, was that it should not exceed the value of the improvement to the lot or parcel; in other words, the tax against the owner should be no greater than the benefits derived by him because of said extension or improvement. The Constitution or statute does not limit or restrict the assessment solely upon the amount of the increased value of lot or prevent an assessment on the whole lot ad valorem or by measurement, but simply restricts it so that it cannot exceed the value of the improvement of the property.”
In Duke v. City of Anniston, 5 Ala. App. 350, 60 South. 447: “The criterion fixed by the people themselves for ascertaining the amount of such assessment is the increased value of the property, and, this being true, it is the duty of the courts to see to it *552that the proper criterion is observed. * * * Under the plain mandate of the above constitutional provision, however, the cost of no street, sidewalk, or sewer improvement, and no part of the costs of any street, sidewalk, or sewer improvement, can be legally assessed by a municipality against abutting land which does not increase to some extent the money value of such land, and only that increased money value created by such improvement can be legally assesed against and collected out of such land.”
In Town of Eutaw v. Botnick, 150 Ala. 434, 435, 43 South. 739, 741, an action for damages for injury caused by grading a street, it was said: “Some of the cases draw the distinction between special benefits and general benefits, and others indicate that the line between the two is imaginary. However that may be, the general trend of the best authorities is that the simple question is whether or not, taking all things into consideration, the property has deteriorated in value, as the result of the work done. * * * Of course, if it has increased in value, the owner has not been damaged; in other words, the test is the difference between the market value before and after the work done. As stated'in the opinion of Judge Somerville in the Maddox Case, which was afterwards adopted as the rule by this court in the Town of Avondale Case: ‘This rule has the advantage of being plain in meaning and of easy application in practice.’—City Council of Montgomery v. Maddox, 89 Ala. 181, 189, 7 South. 433; Town of Avondale v. McFarland, et al., 101 Ala. 381, 383, 13 South. 509.”
The doctrine was reaffirmed in City of Huntsville v. Pulley, 187 Ala. 367, 65 South. 405: “It may be conceded that, where the question is whether property has been either damaged or benefited, the proper form of inquiry, if specific, should be as to the value of the property before and after the damnifying or benefiting act has taken effect.”
By this rule the scope of the issue and‘the evidence is well defined, and the inquiry limited to the difference in the market value of the property before and after the improvement, and, as heretofore stated in the cases quoted from, is “plain in meaning and easy of application in practice.” On the other hand, if the scope of the inquiry is extended to what increase in value is reflected in the parcel from general benefits enjoyed by all the property in the community-and contradistinguished from that *553resulting from special benefits to the particular piece, the scope of the evidence must also be extended so as to embrace the value of every parcel or tract within the zone of benefits, no matter how remote, and submits to the jury a question that the courts, as shown by the opinion in the case of Town of Eutaw v. Botnick, have been unable to solve, and the solution of which is practically impossible.
Thus it is demonstrated that the difference of increased value from special benefits and general benefits is a mere theory that is impracticable of application to a concrete case, and that the utterances in the original opinion are sound and in accord with the holdings above referred to.
We repeat that charge 5, which referred to the jury the duty of separating the proportion of the increased value “resulting from general benefits in common with the rest of the community” from the increase in value resulting from peculiar or special benefits, is incorrect, and imposed on the jury the determination of an issue not in the case.
We have re-examined all the other questions presented, and find nothing to change our views.
The application for rehearing is therefore overruled.
Application overruled.
Pelham, P. J., concurs.