(Dissenting.) — I concur in the conclusion of reversal reached and in all that is held in the opinion, both originally and on rehearing, except as to that part which puts the trial court in error for giving charge 5 requested by defendant, and that part which upholds the trial court for sustaining objections to evidence as to the general increase in the value of property not abutting the improvements as a result of the improvements. I wish to dissent from that part of the holding of the court which is to the effect that, in the contemplation of section 223 of the Constitution, there is no difference between special and general benefits made .by a municipality in laying sewers and paving streets and sidewalks adjacent to the property, or that, if there is any difference, it is not to be given effect or cannot be given effect.
Special benefits to the property abutting the improvements are such benefits as that property sustains as a result of the *554improvements that are peculiar to it and other property abutting the improvements, and that are not in common with the benefits sustained by other property in the municipality as a result of the improvements; while general benefits are such benefits as the property abutting the improvements sustain as a result of the improvements that are in common with other property in the community — property not abutting the improvements. For instance, the paving of Perry street, in the city of Montgomery, confers a special benefit upon the property abutting thereon that is not conferred upon property not abutting thereon; but it cannot be said that such paving confers no benefit at all upon property not abutting thereon, for we know that Perry street is a highway open to the public, much frequented and used by the people of the city, and whose improvement must necessarily, therefore, add to the comfort, convenience, and pleasure of the city public at large, as well as peculiarly to the comfort, convenience, and pleasure of persons residing on that street, and to whom it is consequently more accessible than to those not residing on it. As a rule, whatever adds comfort and convenience to the holding, use, and enjoyment of property benefits that property by increasing its desirability, and consequently its market value. Hence we can well conceive that the paving and improvement of. the highway of a city can increase the desirability and market value generally of property in the city, although such property does not abut on either of such highways so paved and improved.
The design of section 223 of the Constitution, in declaring that no city, town, or other municipality shall make any assessment for the costs of the construction of sidewalks, street paving, or sewers against abutting property “in excess of the increased value of such property by reason of special benefits derived from such improvements,” was to establish a rule of simple justice — to make the abutting property owner pay towards the improvement, as is undoubtedly fair and right, an amount equal to, but not exceeding, the special benefits his property derived from the improvement as expressed in its increased value as,a result of such special benefit, and not to require him to pay towards such improvement such part of the increased value of his property as resulted from the general benefit of the improvement, the benefit which property in general in the city received from the improvement. Whatever increase in value of the prop*555erty abutting the improvement is in common with property not abutting is a. general, and not a special, benefit resulting from the improvement, and it would be unjust, the makers of the Constitution wisely thought, to subject such abutting property to an assessment for the improvement so large that it would cover such increase in value to the property resulting from the improvement as was enjoyed generally by other property, which did not abut the improvement; hence it was provided that such abutting property owners should not have to pay for any benefit that their property received from the improvement that was received in general by other property in the municipality, but only for such special benefit as resulted peculiarly to the property in question or to it and other abutting property — that is, for special benefits — leaving the municipality to pay out of the public funds, which are derived from the taxation of all property owners, whether their property abuts the improvement or not, whatever part of the cost of the improvement exceeded the special benefits derived to property abutting the improvement and as was represented in the increased value by reason of such special, not general, benefits. In this way the public, including the abutting property owners, by general assessment, are made to bear as taxpayers, as they should, the cost or expense of something which benefited all generally, and the abutting property owners, by special assessment, are made to bear exclusively tha't part of the costs or expense that benefited them specially and peculiarly.
The makers of the Constitution, it must be reasonably supposed, had some design in employing in the section of the Constitution (section 223) the word “special,” when they said that the assessment against abutting property for the improvements should not be “in excess of the increased value of such property by reason of special benefits derived from such improvements;” otherwise why- did they use the term “special?” If they meant by it, as the opinion here holds, both “special” and “general” benefits, it seems to me that they would have either used both of these adjectives, “special” and “general,” or no adjective at all in connection with the word “benefits.” Long before this section (223) was inserted in the Constitution courts had drawn the distinction between “special” and “general” benefits, and we must presume that the makers of the Constitution acted in the light of a knowledge of this distinction in drafting the section mentioned, and we must therefore, it seems to the writer, ascribe *556to them some purpose for their act in using in the section the word “special,” which the opinion fails to do.
In 10 Am. & Eng. Ency. Law (2d Ed.) p. 1176, wherein the author is dealing, not with the subject of assessments, with which we are here dealing, but with the subject of compensation in eminent domain proceedings, we find this text: “ ‘Especial benefits’ are such benefits flowing from the proposed public work as appreciably enhance the value of the particular tract of land alleged to be benefited. ‘General benefits’ are the advantages of a general character which are derived by the country at large, or which are derived in common by landowners in the neighborhood of the improvement. They include such benefits as affect the whole community or neighborhood by increasing the facility of transportation, attracting population, enhancing the general property, and the like. * * * The authorities are agreed [speaking, as the author does, with reference to eminent domain proceedings] that mere general and public benefits, or such benefits as result from the improvement to the public at large, cannot be charged to the owner of land which is taken for public use.”
Our own Supreme Court, in the case of Eutaw v. Botnick, 150 Ala. 434, 43 South. 741, cited in the original opinion, speaking to the same question as dealt'with in the text above quoted (eminent domain proceeding), have 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.”'
The court recognizes, as seen, that a distinction has been drawn, and the writer does not doubt that the makers of the Constitution intended to recognize and make effective in the section of the Constitution under review on the subject now involved the distinction which the courts had previously drawn between the two classes of benefits — “special” and “general.”
There is nothing, in the opinion of the writer, in the cases cited in the original opinion in this case and in the opinion on rehearing to conflict with this view. Some of them quoted from —notably Eutaw v. Botnick—are dealing with a different section of the Constitution from that here before us. Some, of course,, are dealing with the same section as here concerns us, but not. with the particular proposition, and hence the loose expressions used referred to in the opinions of the court here are not to be taken as authoritative on a question with which the court was not dealing when it used those expressions.