I concur in setting aside the proceedings for the preliminary irregularity mentioned by the Chief Justice.
I do not construe the statute throughout precisely as it is accepted by the majority of the court. The charter provided a choice of two methods for ordering paving to be *48clone. One is by requiring each owner to pave in front of his own property. The other is by establishing a district, within which the expense is to be apportioned on all property, according to its relative benefits.
I have expressed my views heretofore upon the former question, and it is not involved in this case, which purports to have arisen under the district system.
I concur entirely in the authority of the Council, to create districts over which the tax is to be spread. I think it is the only system which is admissible without violating •the principle of taxation, which should be applied over some large or small territory impartially. But it seems to me that to allow the expenses to be apportioned without reference to any uniform rule, and to be charged to each lot to the extent to which the commissioners consider it benefitted, is to allow them to fix the tax according to their own will, and by no system whatever. Unless there is some rule whereby it can be determined whether the charge against lands is correct or not, the burden is not, in my judgment, in any true sense a tax. I do not see why the 'same principle would not allow the City or the Legislature to single'out arbitrarily the persons or the property and to declare what each one should pay. I do not think that any tax can be sustained, where the unchecked will of a commissioner can fix the sum which each lot is to pay according to his own fancy, and without reference to any standard by which a court can try its correctness and uniformity.
Nor do I think this a proper construction of the charter. That requires the commissioners to assess or estimate the value of each lot. We cannot properly hold any such provision to have been inserted without some reason, and the only legitimate purpose of the valuation must have been to furnish a means of apportionment. Taxation according to value is the usual, and I think the only admissible, method *49under our constitution. Requiring it under tbis charter, gives natural effect to all of the provisions, while unless this is done, there is a valuation made for no purpose whatever. I think the charter can be maintained as valid in this way, and that such is the natural and proper construction.
While I concur in the result, therefore, I think also, that the charter has not been complied with, in the method of assessment. TJpon the remaining questions, as no opinion has been expressed by the rest of the court, there is no occasion to make any remark.