dissenting. I do not concur in the court’s judgment in this case, and do not think that the authorities relied upon sustain it. Nor does it seem to me that there is a division in the express adjudications on the question involved.
The principle which underlies the difference between a tax for general benefits and a special assessment for the payment of local improvements, recognized in the opinion, should in my judgment resolve the present question against the school district. The former is recognized by the authorities as a continuing burden that must be submitted to for the public good, while the latter is in the nature of a payment for a direct and immediate local benefit — a quid firo quo, as much as the consideration is which is agreed to be paid for the purchase of any other benefit or improvement. It is a principle of natural equity that one who enjoys a benefit shall pay for it. When the improvement is made in accordance with the statute, this moral obligation becomes a legal one, unless the exemption is found in the written law. No valid reason exists why the State, the county, the city or the school districts should not pay for the benefits derived by them, the same as other property owners. Hassan v. Rochester, 67 N. Y. 528, 535.
There is no presumption that the legislature intended to violate a principle of natural equity. It may do so when not inhibited by the Constitution, but justice to a co-ordinate department should impel us to establish the rule that inclusion and not exemption will be presumed when the act is silent in cases like this, because the legislature is presumed to intend to act fairly.
The language of the act under consideration is broad enough to include public property, and the only plausible reason, it seems to me, that is given for exempting it is that a governmental agency will be lost or impaired by subjecting the property of the State, county, etc'., to sale to satisfy the claim. But a complete answer to that argument is that it is not necessary to resort to that remedy. The property need not be sold. No property used by a city, county or school district in furthering the design of the origin of the corporation can be sold to satisfy a debt; but it has never been considered that that circumstance was a prohibition against liability. On the contrary, such corporations are constantly compelled to pay their legal obligations without a sale of the public property owned by them.
The cases cited by the court to sustain its judgment go no further than to hold that property such as that in question cannot be sold, and they do not, therefore, reach the question in the case.
Thus the case of State v. Hartford, 3 Am. & Eng. Corp. Cases, 610, and that of County Commissioners v. Maryland Hospital, 62 Md. 127, were both attempts to sell the State’s property which was used for governmental purposes, to pay for a local improvement; and the efforts failed because the sale was not authorized. The case of Worcester County v. Worcester, 116 Mass. 193, was a like effort to deprive the county of its court house and jail, and met with a like fate.
The case of Edgerton v. Huntington School Township, 126 Ind. 261, does not seem to bear upon the question; and that of Toledo v. Board of Education, 26 N. E. Rep. 403, does not sustain the point to which it is cited by the court.
In the first of the two cases last cited, the court decided only that lands granted by Congress to the State for school purposes could not be subjected to direct or indirect taxation, and that for that reason the legislature had no power to subject them to assessment for local improvement. The court in that case relies upon a similar case in Illinois, but the Supreme Court of the latter State had no trouble in reconciling it with the opposite of the rule it is now cited to sustain. The question of the power of the legislature of this State to subject the land in suit to assessment for local improvement is conceded.
The case of Toledo v. Board of Education is meagerly reported, and the opinion throws no light on the question at issue. It is there adjudicated, however, that the city, in which the school property which abutted the local improvement was situated, should pay the assessment, thereby relieving the other abutting owners of the burden of paying the school property’s pro rata. The city, I take it, was co-extensive with the school district, while the improvement district comprised but one of "a large number of streets. The court, therefore, practically reached the conclusion contended for by the Improvement Board in this case. The case may then be said to sustain the board’s position.
Confining the language of the other three cases to the facts before the courts determining them, the only rule that can legitimately be deduced from them is that public property held for g-overnmental purposes cannot be sold to pay for local improvements unless the sale is expressly authorized ; and that general language in a statute will not be deemed to be intended to change the law and authorize the sale of such property.
To that rule I fully assent. It is in accord with the Illinois decisions cited by the court as opposed to the conclusion reached in it, and it does not militate against the liability of the school district to be enforced otherwise than by sale of its property, as the Illinois opinions explain. All that relates to the subject in the Georgia case cited is confessedly obiter. The authority of Dillon and of Cooley is invoked in the opinion in this case, but it is not and cannot be claimed that either has lent the weight of his name to maintain the judgment.
It is true the statute creates no remedy except by sale of the property improved. But when once it is established that there is no intention to exempt the school district from liability, the courts will devise a remedy if the legislature has provided none, for a right never fails for lack of a remedy. The Illinois law is the same as ours in that respect, and the question is satisfactorily answered in McLean County v. Bloomington, 106 Ill. 209, and cases there cited.
There is nothing in any of the cases cited by the court to militate against the doctrine that the courts will devise a remedy in such a case. The first two cases, as I have before said, were against the property of the State. As against the State the courts are powerless, for the suitor can have no remedy against the State unless it is expressly provided by the written law. The moral obligation of the State to contribute its pro rata of the payment due remains nevertheless, and the collection fails only because the courts are without power as against the State. Hassan v. Rochester, 67 N. Y. sup.
The case in the 116 Mass, was a proceeding by certiorari to quash the illegal levy by which it was sought to divest the county of the title to its court house. In such cases there is no discretion in the court except to grant or deny the writ. Consequently no other remedy could have been granted by the court in that case.
The doctrine that the intention to exempt public property from taxation will be presumed because it is not probable that the public will tax itself to raise money to pay over to itself, is manifestly inapplicable to the case of an improvement board. The local improvement board is not the public. It is not a municipality, or a part of the governmental function ; it is only an agency of the property holders for the purpose of making the required improvement and collecting the assessments to pay for it. Fitzgerald v. Walker, 55 Ark. 148; Pine Bluff Water. Co. v. Sewer District, ante, p. 205. It is a small part only of the school district, and to collect a tax from the whole city, (which is the school district), to pay for improving the street in front of the school would not be a case of the public taxing itself to repay itself, any more than if the tax was collected from the public to pay the contractor who built the school house on the school ground. It would be just as convincing to argue that no tax should be collected from the contractor’s property, because it must be repaid to him.
But, in addition to all this, there is another view of the subject which I think ought not to be passed over without consideration.
The Constitution recognizes the difference between a tax and a local assessment, and points out the exemptions intended to operate against the first (Art. 16, sec. 5), but makes no exemption of liability to pay for the benefit derived from the local improvement. Art. 19, sec. 27. Both sections are in the same instrument, and were adopted at the same time. Is it not fair to presume that as the framers made the exemptions in one case and made none in' the other, they intended no exemptions which they did not express ? McLean County v. Bloomington, 106 Ill. sup. ; Adams County v. Quincy, 130 id. 566; Sioux City v. School District, 55 Iowa, 150; St. Loids Public Schools v. St. Louis, 26 Mo. 468.
Moreover, the command of that instrument is that assessments for local improvements shall be uniform. Where a part is exempt, uniformity is destroyed. Davis v. Gaines, 48 Ark. 370; Monticello v. Banks, ib. 251. When the Constitution has said that the assessment shall be uniform, by what rule of construction shall the court say it shall not be ?
I think the judgment should be in favor of the Improvement Board.