Adams v. City of Shelbyville

Dissenting Opinion.

Baker, J.

I regret my inability to agree with my brethren in their construction of the Barrett law. In stating my *496reasons, ■with all due deference, I think it proper first to determine accurately the question presented for solution. The federal Constitution is not what the citizen may read it to be, but is what the Supreme Court of the United States declares it to be. I concur in the statement that, prior to the Norwood v. Baker decision, 172 U. S. 269, 19 Sup. Ct. 187, 42 L. ed. 443, the method stated in §752 of Dillon was constitutional, that is, that the legislature in its discretion might declare as a matter of law that the whole cost of a street improvement and the special benefits to abutting property equaled each other, and that the cost should be apportioned according to frontage, and that the property owners were entitled to a hearing before a tribunál authorized to review the assessment and see that it justly conformed to the frontage basis. Eor brevity, I shall call this the “old” constitution. I concur in the statement that, since the Nor-wood-Baker decision, the method stated in §752 of Dillon is unconstitutional, and that nothing short of the method stated in §761 of Dillon is constitutional, that is, that the legislature must provide a method by which the special benefits to contributing property shall be determined as a question of fact, and that the excess of cost above the sum of special benefits is a general .benefit to be paid for from the general treasury, and that property owners are entitled to a hearing before a tribunal authorized to review the assessment and see that it justly conforms to the basis of benefits in fact received. Eor brevity, I shall call this the “new” constitution. The text-books and reports are full of the general statement that “the only basis for special assessments is special benefits”. Concerning this proposition there has never been any disagreement, so far as I have been able to learn. But from this common starting point, two very, dissimilar lines of thought have been followed. In one, it was said: “Special benefits are the only legitimate basis for special assessments, but the legislature may declare as a matter of law that the property owner’s special benefits are *497exactly equal to his special assessment by frontage”. In the other, it was said: “Special benefits are the only legitimate basis for special assessments, but the property owner may not be specially assessed beyond his special benefits found as a matter of fact.” So, finding in reported cases the expression that special benefits are the only legitimate basis for special assessments does not of itself show which theory a court has adopted. It is hardly conceivable that a court would be following out the two theories at the same time. They seem as far apart as the poles, as essentially different as a question of law is from a question of fact. A legislative act, it seems to me, must have some consistent theory underlying it. It can not well be two different things at once. The legislature must have intended the one or the other, — not both. And, though it is within the range of possibilities that the legislature in 1889 might have framed a law which would meet the requirements of the “new” constitution of 1898 and which would be permissible under the “old”, the question is: Which theory was it that the legislature intended to conform to in the Barrett law? Is it likely that, by prescience or by chance, the legislature hit upon the requirements of the “new” constitution that were not in the “old”? Or, on the contrary, did the legislature intend to carry out the same policy, sanctioned by the judiciary, that had been in operation for nearly forty years,— with the addition of the bond feature?

Before proceeding with the question, it may be well to notice two lines of argument advanced by counsel for appellee, to which my brethren, perhaps unconsciously, may have accorded some weight. One is, that this court must presume that the legislature intended its act to conform to the Constitution, and therefore this court by intendment should supply to the act whatever is needed to make it constitutional. The other is, that the Supreme Court of the United States will follow any line of decision that this court may adopt. Whether or not this last statement is true is not within the *498province of this court to decide; and whether, if that were true, it is an argument addressed to the reason, or an appeal to what counsel may believe to be the prepossessions of this court, is not worth while to consider. But counsels’ first contention is of great importance. If the contention were correct, then this court and every court has committed a grievous wrong against an independent and coordinate branch of the government every time a statute has been, held to be unconstitutional. But, it seems to me, such a process is not judicial construction. Judicial construction is not an unbridled force, operating this way in one case and that way in another, according to caprice or what courts may think would be good legislative judgment. The function of judicial construction is, not to hold statutes constitutional, but to determine the meaning of statutes. If it is found that the legislature has acted within the scope of its powers, courts should let the act alone whether they deem it wise or not. If it is found that the legislature has usurped power and invaded the reserved rights of the people, it should be the duty of the courts rigorously and jealously to uphold the rights of the people, even if they think the legislature ought to have the power it attempted to exercise. The first business of the courts is to ascertain judicially the meaning of the statute. 'Whether the statute is constitutional or unconstitutional can not be determined until the meaning of the statute is first determined. And that meaning should be determined according to rules of law that the courts should uniformly follow. If courts recognize no rules in declaring the legislative intent, or disregard the lawful order of applying recognized rules, the people, the bar and the inferior tribunals would have no means by which to make even a fair guess at what would finally be declared to be the law. If there is no law to control courts’ interpretation of law, as well might there be no law. at all. Non licet judicibus de legibus judicare, sed secundum ipsas. But, if counsel were correct in th'e contention that the court *499should first examine the Constitution and then by construction mold the statute to fit it, the argument, it seems to me, should operate against appellee, and not in its favor, for the Constitution that the members of the legislature of 1889 had sworn to support was the “old” constitution. They may have had the prevision to see that a “new” one was coming, but they were not bound to frame their laws according to its fashion. Yet, the impression remains with me that my brethren have first laid out the new pattern and then cut the old material to fit it.

The Barrett law is too lengthy to set out here in full. But, omitting such portions as are exhibited in the majority opinion, I shall endeavor to give the framework of the statute. The first section provides for the beginning of street improvement proceedings by the petition of property owners. The second section authorizes the compion council to declare by ordinance the necessity for street improvements, and directs notice of the passage of such an ordinance to be given by publication. “Said notices shall state the time and place when and where the property owners along the line of said proposed improvement can make objections to the necessity for the construction thereof.” This section does not purport to relate to the method of assessment, or to give property owners a hearing on any subject except the necessity of the proposed improvement; and, as the power to decide is left within the unqualified discretion of the council, the objections which property owners could make on the question of the necessity of the improvement would necessarily be advisory only. Accordingly, it is decided by this court that the common council may enter an order for the construction of the improvement before giving notice of the resolution of necessity. Barber, etc., Co. v. Edgerton, 125 Ind. 455, 462. This being so, T am unable to perceive how section two has any application to the construction of the sections that point out the procedure after the performance of the work has been determined upon. The third see*500tion, omitting the part in reference to sewers, declares that “the cost of any street or alley improvement shall he estimated according to the whole length of the street or alley, or the part thereof to he improved, per running foot, * * * and the city or incorporated town shall be liable to the contractor for the contract price of said improvement, and the owners of lots or parts of lots bordering on such street or alley, or the part thereof to be improved, * * * shall be liable to the city for their proportion of the costs in the ratio of the front line of their lots owned by them to the whole improved line for street and alley improvements, * * * and the city or incorporated town shall have a lien upon such lots or parts of lots, respectively, from the time such improvement is ordered, for such costs of improvement, collectible as hereinafter provided, * * * and the owners of such unplatted lands bordering bn such street or alley or the part thereof to be improved shall be liable to the contractor for their proportion of the cost in the ratio of the front lines of such unplatted lands owned by them to the whole improved linej and in making the assessment against such owners for the improvement of such lots or parts of lots and unplatted lands [the cost] shall be assessed upon the ground fronting or immediately abutting on such improvement bade to the distance of one hundred and fifty feet from such front line, and the city or incorporated town and the contractor shall have a lien thereon for the value of such improvement. * * * Any mistake in the description of the property or in the name of the owner shall not vitiate the lien of such assessment. Such city or town shall be liable and pay for all that part of such street or alley improvement as shall be occupied by the street and alley crossings, and may order that any part of the total cost of any of the improvement in this act mentioned shall be paid out of the general fund.” The fourth section provides for an allowance to the owner of any lot who, before the contract is let, has made any improvement in front of his lot in accord*501anee with the general plan of improvement for his street; and provides for taking security from the contractor. The fifth section: “When any such contract shall be made, or shall have been heretofore made, and shall have been in progress of fulfilment, the common council * • * * shall have power to cause estimates to be made from time to .time of the amount of work done by the contractor, and to cause the same to be paid out of the treasury, deducting a reasonable amount of percentage to secure the completion of the contract until the whole shall be finished, and to prescribe the time in which the whole shall be completed, and such estimates shall be a lien upon the several parcels of ground upon which they are assessed to the same extent that taxes are a lien, and-shall have the same preferences over other demands, and such liens shall be in favor of the city or incorporated town, and the owner of the certificates or bonds hereinafter mentioned to secure the city or incorporated town and such owners the reimbursement for such cost of improvement hereinafter provided for. The common council of such city or the board of trustees of such town, with the concurrence of two-thirds of the members thereof, may order or cause any or all of the improvements mentioned in the first section of this act, and repairs of any kinds of streets and alleys to be made in like manner, without such petition, and either charge and cause any or all- of the expenses thereof to be assessed and collected, as hereinafter provided, when petition is made, or if it is deemed just and right by the common council of such city or the board of trustees of such town to cause such expenses, or any part thereof, to be paid out of the general revenue of the city or incorporated town.” The sixth and seventh sections are set out in the majority opinion. The eighth section authorizes the issuance of improvement bonds, in anticipation of the collection of the assessments, for the payment of which bonds the lot owners provide the money in annual instalments, and commands that, after the assessment has been confirmed by the *502common council, “no suit shall lie to restrain or enjoin the collection of such assessment, and the validity of such assessment shall not be questioned, and such bonds, when issued, shall transfer to the owner thereof all the right and interest of -such city or incorporated town in and to such assessments and the liens thereby created, with full power to enforce the collection thereof by foreclosure or' otherwise, under any of the provisions of this act.” The ninth section provides for the foreclosure of assessment liens, and transfers the city’s interest in the liens to the holders of the bonds. The tenth section authorizes the collection of assessments by the city treasurer by sale upon precept, and allows the lot owners the right of appeal to the circuit court of the county, but “in case the court and jury shall find, upon trial, the proceedings of said officers subsequent to said order directing the work to be done are regular, that a contract has been .made, that the work has been done, in whole or in part, according to the contract, and that the estimate has been properly made thereon, then said court shall direct the said property to be sold and conveyed by the sheriff thereof as the said treasurer is hereinafter directed to sell and convey property liable to street improvements.” In regard to section ten, it is evident that, under any construction of section seven, the appeal from the precept has become nugatory; for, the assessments having been made conclusive on the hearing before the council, the property owner may not again contest what has been finally adjudicated. But section ten is important in considering the changes made in street improvement proceedings by the Barrett law.

Now, the question being under which of the two inconsistent methods of laying assessments the legislature intended to act, — whether under the “old” constitution according to special benefits declared as a matter of law, or under the “new” according to special benefits to be determined by the assessing officers as a matter of fact, — the answer should require an examination of the whole statute, in the light of *503the circumstances surrounding the legislators in 1889, in order to determine the entire scope and manifest intent of the act. And the first of these circumstances is the attitude of this court.

Eor nearly forty. years prior to 1889, street improvements were made in this State under laws that declared that the special benefits and the assessments by frontage for the entire cost, except for street and alley crossings, equaled each other; and this court uniformly held that such laws were in harmony with the “old” constitution. In Snyder v. Town of Rockport, 6 Ind. 231, May term 1855, an act was assumed and declared to be constitutional that directed the town board, on petition of two-thirds of the owners of abutting property, to assess the whole cost upon all abutting property and to apportion the cost according to the last assessed valuation of such property. In Goodrich v. Turnpike Co., 26 Ind. 119, May term 1866, the constitutionality of a local assessment act, wherein the legislature had fixed the “special benefits” arbitrarily as a matter of law, was under consideration, and this court, among other things, said: “It is claimed that the assessment authorized by this statute is not a tax, not a burden or charge imposed by the legislative power of the State upon persons or property to raise money for public purposes, but the exercise of the power of eminent domain, in taking private property for public use, ‘without just compensation’. There is a manifest distinction between the taxing power and that of eminent domain. Both, in effect, appropriate private property to public uses. They differ only in degree. Taxation exacts money from individuals as their share of the public burdens, and the tax payer, according to the theory of our system, receives a just compensation in the benefits conferred by the government in the proper application of the tax. "When, however, property is appropriated by virtue of the right of eminent domain, it is taken, not as the owner’s share of a public burden, but as so much more than his share. Many of our *504public improvements are local in their character, and confer special benefits on those in their immediate vicinity. By a long line of decisions of this court, these benefits may be set ofi against damages sustained by the appropriation of private property for public use, in the construction of such works. In the case in judgment the legislature has determined, and this matter is within its power, that this is a proper subject for taxation, and that the burden imposed is the just share of each person embraced in the provisions of the act.” In Palmer v. Stumph, 29 Ind. 329, May term 1868, it was said: “By this act the rate is the same upon every one within reach of the assessment, that is the exact benefit each may receive from the improvement of the street. The legislature have adopted this method of reaching that result. It is certainly reasonable to suppose that, as a rule, property along the line of a street improved will be equally benefited; that, as a rule, the property fronting upon a street, foot by foot, will be of equal value and should therefore be equally assessed.” In Ray v. City of Jeffersonville, 90 Ind. 561, May term 1883, an assessment under the street improvement law of 1881 was attacked on the ground that the act was in violation of section 21 of article 1 of our' Constitution, which provides that “no man’s property shall be taken by law without just compensation”; and the court held the act valid as against that objection. This court, through Mitchell, C. J., in Ross v. Stackhouse, 114 Ind. 200, November term 1881, declared: “Special assessments for street and other similar improvements are upheld upon the theory that each lot or tract of land assessed is benefited in a special and peculiar manner in a sum equal to the amount estimated or assessed against it.” Through the same judge the court in Garvin v. Daussman, 114 Ind. 429, May 8, 1888, in speaking of the kind of notice and hearing that was thought to satisfy all constitutional requirements, said: “In the imposition of poli or occupation taxes, where a certain sum is assessed against each individual exer*505cising a given avocation, or according to his age, without regard to actual benefits, the necessity of notice and a hearing is reduced to a minimum. To a measurable extent, the same principle is involved when the cost of an improvement is, as by law in proper cases it may be, apportioned by mere mathematical calculation, according to a certain rate per front foot. * * * The principle which underlies and upholds special assessments, such as that involved in the present case, is, that the lands assessed are enhanced in value to an amount equal to the cost of the improvement, which is to be apportioned among those specially benefited in the manner prescribed by law. * * * It is essential to the public good that the necessity for street and other public improvements, and the cost of making them, and such other proceedings as are necessary to insure the prompt execution of the work, be determined and taken in a comparatively summary way. * * * If, therefore, the law provides for giving notice and for a method whereby the property owner may ultimately challenge the correctness of the assessment made against his property, in respect to whether it was made in good faith, without intervening mistake or error, and according to the method and under the safeguards provided by the law — the constitutional provision is deemed to be satisfied.”

Taking the foregoing as a fair illustration of the judicial history of the question down to 1889,1 can not 'agree in the statement that the constitutionality of the front-foot method had been considered only in reference to the provision requiring uniformity and equality in taxation and never in reference to “just compensation” and “due process of law”; and I am unable to reconcile such a contention with the admission that Dillon and Cooley were not without warrant in classing Indiana “as one of the majority states upholding the doctrine that it is competent for the legislature conclusively to declare that the total cost of a local improvement shall be assessed equally against the frontage”.

*506The legislature of 1889 not only knew this judicial history but also were aware that it was occasioned by a uniform and consistent course of legislation since 1852. Prior to 1889 the street improvement laws had been changed many times, and yet it is agreed that the underlying plan remained the same. In 1889 certain changes were made; and my brethren, if I understand them, state that the legislature intended to abandon the whole theory of local assessments under the “old” constitution and to adopt the theory of the “new”. And this, on account of the people’s dissatisfaction with the law. But it is said that “It is evident that the discontent did not arise,from the method of frontage assessments as a rule, for that principle had been consistently maintained in every enactment since 1852 and was carried into the Barrett law”.

The last declaration of this court on the subject of street improvements, prior to the meeting of the legislature in January, 1889, was made in Garvin v. Daussman, 114 Ind. 429, in May, 1888. In that case, as in some earlier ones, the constitutionality of the arbitrary front-foot method was upheld not only in respect to “uniform and equal taxation”, but also in respect to “just compensation” and “due process of law”; and the court then advised the legislature that “the determination of the common council * * * may be made conclusive. * * * It is essential to the public good that the necessity for street and. other public improvements, and the cost of making them, and such other proceedings as are necessary to insure the prompt execution of the work, be determined and taken in a comparatively summary way”. In making up the Barrett law, the legislature did not strike out into new fields; but they took, as the foundation to work upon, the old street improvement statutes of this State, which, are confessedly based upon the arbitrary front-foot method; and adopted from other states certain elements that stood as component” parts of the arbitrary front-foot method. Compare Bates Ann. Ohio St. 1899, §§2293a, *5071-9, and 2293b, c, and d; also New York laws 1870, ch. 619, 1881 ch. 689, 1884 ch. 510, 1885 chs. 396 and 406, 1893 ch. 550, 1895 ch. 816; and Spencer v. Merchant, 100 N. Y. 585, 3 N. E. 682; Jones v. Town of Tonawanda, 158 N. Y. 438, 53 N. E. 280; Lyon v. Town of Tonawanda, 98 Fed. 361. The new features that were not in our former statutes are the provisions for the resolution of necessity, for the issuance of bonds and the foreclosure of the liens represented thereby, for the laying of the assessments by the city engineer, and for the substitution of the common council for the circuit court as the tribunal whose judgment, after a “hearing”,' makes the assessments conclusive. As these features are well adapted to fit into the scheme of laying street assessments by the arbitrary front-foot method, and as such was their place in the legislative plans of Ohio and New York and perhaps other states, it strikes me as a somewhat violent assumption to say that the legislature of 1889 must have intended, by the introduction of these provisions, to grant the property owners rights beyond those given by the “old” constitution that was then in force and to afford them the protection guaranteed by the “new” con-' stitution of 1898. The proper assumption would be that the legislature did not intend to depart from a long settled policy or to have the basis of assessment, which was brought forward from our former statutes, viewed in any other light than that of its settled construction. The new provisions, except section six, do not purport to fix any rule for laying the assessments. Section six expressly makes frontage the basis for street assessments. So, it is found that in the only new section which speaks of the method of assessment the same plan is apparent that inheres in the old matter which was reenacted. And in no other way could section six have been harmonized with the former laws which were used as the foundation of the new. Yet on the word “hearing” in section seven is hung a construction which, as it seems to me, conflicts not only with the former laws but also *508with the concurrently new matter in section six. My brethren seem to have overlooked the consideration that, in enacting the Barrett law, the legislature may have found that the then existing statutes, which permitted the property owners separately and one at a time to contest in the circuit court the correctness of their assessments, did not afford a satisfactory basis for the issuance of bonds, and that the substitution therefor of a “hearing” before the common council,' at which all objections could be disposed of together, furnished “a comparatively summary way” of rendering the assessments conclusive, as suggested in Garvin v. Daussman, 114 Ind. 429.

It seems to me that my brethren have acted upon the plan of first adopting a construction of section seven and then construing the rest of the act (so far as it is set forth by them) in a way to conform thereto. I think this is not a proper method of interpretation; and I can not, under the rules of construction as I understand them, find the meaning in section seven that has been given to it.

The language of the section furnishes no foundation for the construction adopted. It makes no allusion to special benefits. It fails to command the city to refrain from assessing upon the abutting lot an amount in excess of the special benefits actually received by it, and to refrain from assessing upon the property in the taxing district an amount in excess of the sum total of the special benefits actually received by the several parcels of contributing property. -It fails to command the city to pay from the general treasury the excess of cost above the total special benefits, — the part that benefits only the municipality at large. Benefits and damages are the varying degress above and below zero on the compensation-scale. If a lot owner’s special benefits were below zero, from what source and by what method is he to be made even? The section fails to provide. These omitted matters might have been fully and explicitly supplied by the legislature by tacking them onto the word “hearing”, *509Nut it did not do so. My brethren say that “From the term ‘hearing’ is necessarily implied the power to administer some adequate remedy”. That remedy, they say, must be a determination of special benefits actually received, for otherwise the legislators are accused of insincerity, dissimulation and mockery. The argument seems to me a plain begging of the question. The question is: Did the legislature intend to provide the “hearing” required by the “old” constitution then in force, or the “hearing” required by the “new” constitution of 1898? The argument seems to assume that in 1889 no “hearing” was a “hearing” unless it was for the purpose of determining benefits actually received as a matter of fact. Although I agree in the statement that well-disposed taxing officers would remedy their omissions and mistakes, if they noticed or were informed of them, without any “hearing”, yet I say that the legislature never had the power to frame a law that shut off the property owner on the presumption that the assessing officers would make no omissions nor mistakes. In all valid taxation, three things have ever been required. First, a law directing the assessing officers how to proceed. The authority to tax is exclusively a legislative power. “This is manifest from the slightest consideration of what taxation is. It is the making of rules and regulations under which the necessary revenues for all needs of government are to be apportioned among the people and collected from them.” Cooley on Taxation (2nd ed.), 41. Second, an assessment by the proper administrative officials, which must be made in substantial conformity to the method prescribed by the law, — for the expression of one method is the exclusion of all others. Third, an opportunity for the property owner to have a “hearing” before some tribunal, with judicial powers, on the question whether or not the assessing officers have substantially complied with the method prescribed by the law. So, the word “hearing” does not necessarily imply a hearing on special benefits as a matter of fact; for, on the ques*510tion of tlie correctness of special assessments for special benefits declared as a matter of law, the property owner was entitled to a “bearing”, and it would have been oppression and confiscation to have denied it to hiña.

The city is the actor in prosecuting the proceedings that result in a judgment making the assessments conclusive upon the lands of abutting proprietors. The engineer files his report assessing each piece of contributing property a certain sum as he has computed it according to the commands of section six. The hearing provided for in section seven is, according to the language of the act, a hearing upon the report of the engineer and the assessments therein. It is axiomatic that in all hearings, the tribunal must determine the case upon 'the charge filed against the defendant. This is true, not only in all cases before regularly ordained courts, but also in all special proceedings before Special tribunals. In proceedings before city commissioners for the opening and vacation of streets (§3166 et seq. R. S. 1881 and Horner 1897, §3629 et seq. Burns 1894), before circuit courts and before boards of county commissioners for the establishment of public drains (Ch. 49 R. S. 1881 and Horner 1897, Ch. 53 Burns 1894), before boards of county commissioners in the various proceedings relating to free gravel roads (Ch. 70 R. S. 1881 and Horner 1897, Ch. 76 Bums 1894), the landowners are afforded a hearing on the question of special benefits, not because they are offered a hearing, but because the charge, upon which the hearing is had, is that their particular lands are severally specially benefited. In all these cases, the question for the tribunal to determine on the hearing is whether the engineer (or viewers or corresponding officials who formulate the charge against .the property owners) has fully, impartially and correctly performed the duties laid upon him by the statute. If he has, judgment confirming his action is rendered; if he has not the tribunal alters or amends, or requires him to alter or amend, hÍ3 charge to conform to what it should have been in the first *511place if he had complied -with his dxities under the statute, and then renders judgment on the charge. This principle has been fully recognized in the street improvement cases of Garvin v. Daussman, 114 Ind. 429, and City of Terre Haute v. Mack, 139 Ind. 99. In Hutcheson v. Storrie, 92 Tex. 685, 51 S. W. 848, 852, 45 L. R. A. 289, June 19, 1899, the supreme court of Texas had before it a law that is exactly the same in essentials as the Barrett law. After the engineer files his report of the total cost, etc., and of the assessment upon each lot by frontage, the city .council gives notice by publication of a hearing when the property owners may “object to any such acts and proceedings and show wherein they have been or may be wronged or injured thereby, and ask for a revision or correction of the same”. The city council can not make the final assessments until all objections have -been heard and determined. It will be observed that the Texan property owners were given an opportunity to “show wherein they have been or may be wronged or injured” by the front-foot assessment. This is certainly as broad as the right to “make objection” to the report and the assessments therein. And the court said: “The foregoing provision of the charter authorizes the property owner to call upon the city council to revise or correct errors committed in the proceedings had in assessing the cost of improvement against his property, hut it does not empower the council to do anything that it or its officers could not have done in the first instance. The words ‘revision’ and ‘correction’ mean that the council may be called upon to review that which had been done, and to malee the proceedings conform to the law. Vinsant v. Knox, 27 Ark. 272. The city council and the officers acting under the authority of the charter of the city of Houston having no power in the first instance to consider the question of benefits in fixing the amount to be charged against Mrs. Hutcheson’s property, a revision and correction' of the acts done could not give relief against the wrong complained of. *512* * * 'pjjg claim that, upon petition of Mrs. Hutcheson, the council could have afforded relief from the unlawful exaction, is wholly unsupported by the terms of the law, and is in direct conflict with many of its provisions. The wrong did not consist in a failure to follow the directions of the law, but in obeying its unconstitutional requirements”. So, on the hearing mentioned in section seven of the Barrett law, the inquiry must be confined to the question whether or. not the assessment reported by the engineer has been-made as it ought to have been made in the first instance, that is, in conformity to the terms of the law prescribing his duties,' — unless that hearing, of all the hearings in the world, is to be made an exception to the universal rule that a tribunal must determine a case on the charge filed against the defendant and is not at liberty to discard that charge and reach out and draw, in some other from undefined sources and by undefined methods.

On the “hearing”, the common council “may adopt, alter or amend such report and the assessments therein”. It is true that “alter” means “to make otherwise”. But it does not follow that the report and the assessments therein can not be made otherwise than the engineer made them except by abandoning the method of testing the assessments by the standard of special benefits declared as a matter of law and following the method of testing the assessments by the standard of special benefits actually received determined as a matter of fact. If the engineer made any mistakes in following out the front-foot method prescribed for him, his report and the assessments therein would be made otherwise by correcting the errors. But “alter” is used in connection with other words. The council “may amend” the report and the assessments therein. “Amendment” is usually understood in law to mean the supplying of deficiencies. If the engineer made any omissions of property or other material matter, his report and the assessments therein would be amended by supplying the deficiencies. The council *513“may adopt” the report and the assessments therein. If the engineer, as the assessing officer, has made no mistakes nor omissions in laying the assessments in his report, surely the council, as a reviewing tribunal, should be permitted to confirm the assessments. In taking the actual language of the clause, something more than the word “alter” should be considered. Eor example, it makes a difference whether the auxiliary verb “may” or “shall” is connected with “alter”. Standing alone, “alter” can be given the broadest definition to be found in the dictionaries; and if the auxiliary verb and the object are to be assumed and not taken from the actual language of the clause itself, it is possible, of course, to say that the common council “shall alter the basis of the assessments in the engineer’s report”. But the actual language is that the council may adopt, alter or amend the engineer’s report and the assessments therein. The method on which the engineer’s report and the assessments therein are based has been continuously asserted throughout the preceding sections. The canons of interpretation require that general words be limited to the sense of the context. “Not only are words and provisions modified to harmonize with the leading and controlling purpose or intention of an act, but also by comparison of one subordinate part with another; that is to say, the sense of particular words or phrases may be greatly influenced by the context, or their association with other words and clauses.” Sutherland Stat. Const. §262. “General words or clauses may be restricted to effectuate the intention or to harmonize them with other expressed provisions. Where general language construed in a broad sense would lead to absurdity, it may be restrained. The particular inquiry is not what is the abstract force of the words or what they may comprehend, but in what sense they were intended to be used as they are found in the act.” Sutherland §246.

To insert into the seventh section the elements that the legislature failed to include is, I think, not only violative of *514the plain language of that section, but is destructive of other parts of the act. The primary rule of construction is to take the language of the legislature in question according to the plain and', ordinary meaning of the words, without adding to or taking therefrom, and, if the language so taken does not create an ambiguity, to accept it as declaratory of the legislative intent. But if there were an ambiguity, then the next rule of construction should require the court so to resolve the ambiguity as to give effect and purpose and meaning to the other parts of the act. If the ambiguity (supposed, for the sake of argument) were resolved in favor of the idea that the council on the hearing is required to determine the assessments "on the basis of special benefits actually received, then the sixth section is deleted from the act and the legislature is convicted of the folly of having provided elaborately and explicitly for a method of assessing upon each front foot throughout the improvement an equal sum (a method that necessarily excludes the consideration of special benefits actually received) and then declaring that on the hearing the council, not may, but shall disregard and throw aside all that has been done relating to assessments and begin de novo and make the assessments by the method of determining the special benefits actually received. My brethren seek to save some purpose and meaning in section six by holding, as I understand them, that the engineer does not make the assessments but simply reports certain facts for the enlightenment of the council when that body enters upon the making of the assessments according to special benefits actually received. If this were true, section six would nevertheless accuse the legislature of dealing in futilities. How would the council, when that body purposes to enter upon the making of the assessments according to special benefits actually received, be enlightened by being informed of the total cost of the improvement? The average cost per front foot? The name of each property owner? The number of front feet owned by each? The amount due *515upon each lot, ascertained and fixed by multiplying the cost per front foot by the number of front feet of each lot? The legal description of each lot? How would these items afford the council any information on those matters on account of which my brethren say that special benefits actually received should be considered, namely, that it is “clear that all property bordering upon a municipal highway is not affected in the same way by an improvement of the latter; that in some cases the grade may be so raised or lowered as to impair most seriously the use and value of the property; in others, that some property may be situate upon a general level, highly improved and in a business part of the city, while others upon the same street may be remote from business, lying low and near a water course, and practically worthless for business or residential purposes; in others, some abutting lots may be twenty feet and others 200 feet deep” ? But it is not true that the engineer simply reports certain facts and makes no assessments. He is required to ascertain and fix the amount due upon each lot by multiplying the average cost per front foot by the number of front-feet of each lot. This' is an assessment, as will hereinafter more fully be shown. It is sufficient for the present to point out that the legislature has in express words defined the engineer’s ascertainment and fixing of the amounts due upon the several lots as “assessments”. The legislature says that the matter in review before the council as a tribunal is the engineer’s report and the assessments therein. And the matters, other than the assessments, in the engineer’s report are material only on the theory that the property owners are afforded a “hearing” to challenge the correctness of the assessments, as “hearing” was defined in Garvin v. Daussman, 114 Ind. 429. It is true that, if a property owner’s assessment were made on the basis of special benefits actually received, it could be figured out that the assessment amounted to so much per front foot, $4.98 in one case and $1.80 in another. But it would have been just *516as reasonable for the legislature to require the engineer to report the number of persons in each property owner’s family; for, in the same way, it could be figured out that the assessment amounted to so much per head.

To insert into the seventh section the elements that the legislature failed to include would also destroy the fifth section of the act. That section empowers the council to pay the contractor from time to time during the progress of the work. Such payments are made out of the treasury and are declared to be liens upon the abutting property. The city incurs no personal liability to the contractor, but acts merely as an instrumentality in collecting money for the contractor from the property owners. Quill v. City of Indianapolis, 124 Ind. 292, 7 L. R. A. 681; Spidell v. Johnson, 128 Ind. 285. The plain meaning of the section is that if the city shall advance money from the treasury to the contractor, the city shall have the absolute right to reimbursement from the property owners by means of the liens that, by this fifth section, are put upon the abutting property. If the city, under section five, should advance to the contractor ninety per centum, say, o£ the cost, and if, under section seven as my brethren construe it, the city must limit the assessment against each parcel to an amount not exceeding the special benefits actually received by it, fifty per centum, say, of the cost, then the plain meaning of section five is utterly destroyed and the city would be left with a loss of forty per centum, say, of the cost, although the city had begun and carried forward the improvement under a resolution declaring that all of the cost, except for street and alley crossings, should be borne by the abutting property. If city officials had understood this necessary result of the construction contended for in this and other eases pending in this court, they might not have been so ready to deprive themselves of so much cash or debt-incurring margin to use for other purposes.

To insert into the seventh section the elements the legis*517lature failed to include would also destroy the third section of the act. This section provides the fund for paying the contractor. As soon as the work is determined upon, the council makes a contract with the best bidder. The contractor gives a bond for the prompt and-faithful performance of the work. The contract is of course binding upon him, and he must execute it or be liable on his bond. He enters into this binding contract on the faith of a positive legislative declaration: “The city or incorporated town shall be liable to the contractor for the contract price of said improvement, and the owners of lots or parts of lots bordering on such street or alley or the part thereof to be improved, * * * shall he liable to the city for their proportion of the costs in the ratio of the front line of their lots owned by them to the whole improved line for street and alley improvements, * * * and the city or incorporated town shall have a lien upon such lots or parts of lots, respectively, from the time such improvement is ordered, for such costs of improvement; * * * [which] shall be assessed upon the ground fronting or immediately abutting on such improvement back to the distance of one hundred and fifty feet from such front line, and the city or incorporated town and the contractor shall have a lien thereon for the value of such improvement.” As already stated, the city is not personally liable to the contractor. If the city has advanced money, it has the lien by which to secure reimbursement. If the contractor receives his contract price in improvement certificates or bonds, he has the lien by which to collect the contract price of his labor and materials. This section also says that the city “shall be liable and pay for all that part of such street or alley improvement as shall be occupied by the street and alley crossings”. The plain meaning of section three is that, unless the city voluntarily assumes in advance to pay some definite percentage of the total cost, the city shall pay for street and alley crossings and the property owners shall pay for the rest of the im*518provement; and that, if the city assumes a certain percentage, the residue of the total cost, except for street and alley crossings which must he paid for by the city, is to be borne by the property owners. By the implied power that my brethren find in section seven, this meaning is destroyed. If the assessments are to be measured by the actual benefits which the property owners receive from the improvement, it is evident that the improvement as a whole must be considered. The question w'ould be: How much special benefit does each lot actually receive from this improvement? And each owner’s contribution towards the cost as a whole would be determined accordingly. And the excess of cost, as one sum, would have to be paid by the city. It seems indisputable that the total cost would thus be divided between the city and the property owners on a contingency that bears no relation to the number of feet in the street and alley crossings. Yet, section three clearly separates the improvement itself and the liability therefor into two distinct parts.

Further, in regard to section three, my brethren say that it should be noted that the provision is “That the- cost shall be estimated by the running foot, not assessed”. They quote the definition that an assessment is the “adjusting of the shares of a contribution towards a common beneficial object according to the benefit received”. Here, again, my brethren seem to revert to the idea that the plan required by the “new” constitution is the only one in which special benefits are the sole basis for special assessments. But as already shown special benefits were the common starting point of the two divergent lines of thought. So, if the definition selected by my brethren were the one the legislators had in mind, it would not disclose which method they intended to pursue. But it seems clear to me, from an examination of the whole act, that the definition the legislators intended to express was that an assessment is “an official estimate of the sums which are to constitute the *519basis of an apportionment of a tax between tbe individual subjects of taxation within a district.” Anderson’s Law Diet. In section three, tbe part of the sentence that commands bow tbe estimate shall be made and what tbe liability of tbe lot owners shall be, ends with a semicolon, and tbe sentence proceeds: “and in making tbe assessment against such owners for tbe improvement of such lots or parts of lots and unplatted lands [the cost] shall he assessed upon tbe ground fronting or immediately abutting on such improvement back to tbe distance of one hundred and fifty feet from such front line, and tbe city or incorporated town and tbe contractor shall have a lien thereon for the value of such improvement”. Again in section three: “Such assessments with tbe interest accruing thereon, shall be a lien upon tbe property so assessed and shall remain a lien until fully paid.” And in section ten : “In case any of tbe owners of lots or parcels of grounds on which such assessments have been made shall fail or refuse for tbe space of twenty days after tbe date of tbe estimate to pay tbe amount thereof due by such person to such contractor, such contractor shall file bis affidavit in tbe clerk’s office of said city, stating that tbe whole or some part of said assessment remains unpaid,” etc. And again in section ten:. “And in case tbe court and jury shall find, upon trial, tbe proceedings of said officers subsequent to said order directing tbe work to be done, are regular, that a contract has been made, that the work has been done, in whole or'in part, according to the contract, and that tbe estimate has been properly made thereon, then said court shall direct the said property to be sold,” etc. It therefore seems clear that tbe legislature understood an “official.estimate” to bo an “assessment”. And tbe legislature did not confine itself to tbe use of the word “estimate”; for, in tbe part of section three that my brethren have omitted, it appears in plain words that the lots shall be “so assessed”.

Again, it is said that section three contains no mandate *520that the property “shall ultimately be required tp contribute equally per front foot”. I do not see how language could be made clearer: “The owners of lots * * * shall be liable * * * in the ratio of the front line of their lots owned by them to the whole improved line”. This liability is secured by a lien. It is the fund on which the contractor relies for payment. And it is the only fund, if the city is up to its debt limit, or becomes so after the contract is made- and before the work is completed.

My brethren say that section three requires “that the liability shall relate to the frontage”. But I take it that they do not mean to concede that the liability shall be according to the frontage. They only mean that the liability for ¡special benefits in fact received, after it is determined at the conclusion of the work, is susceptible of being figured into a relation with the frontage, — a phase of the subject that lias already been noticed sufficiently. But it is said that “the measure of liability and lien here mentioned is only conjectural at most, since they arise before an ascertainment of the facts, by measurement, necessary to their definite-determination”. The order for the improvement, which enters into the contract, and the contract itself, disclose the dimensions, location and character of the work, and the price per front foot in terms, or in terms reducible to the front foot. So far as the contractor is concerned, the moment the contract is let he can determine the amount of liability of each property owner and of the city for street and alley crossings as well as when the work is finished. It is true that in the assessment made by the engineer, at the conclusion of the work, the “total cost”, may include other items, such as advertising, etc.; but in these matters the contractor is not interested, for the contract is the limit of his claim and lien. City of Huntington v. Force, 152 Ind. 368. But if there were any uncertainty in the amount finally to be allowed the contractor, no uncertainty would thereby be introduced into the liability, for the lien by the front foot *521could be fixed in advance for whatever amount the contractor’s due proved to be.

In endeavoring to leave some purpose in section three, my brethren, if I comprehend their meaning, hold that the section does not fix any basis for assessments, but only provides for a prima facie calculation of liability. This seems to me a purpose that is contrary to the entire scope and manifest intent of the act. But I admit that it would be some purpose, if all the lot owners, except the “aggrieved” mentioned in section seven, might, by not objecting and not asking to be heard, accept the prima facie calculation as a correct statement of their liability. Such a construction, however, would at once run counter to the objection that the statute did not provide for a “uniform and equal” rate of assessment. Suppose that the prima facie calculation was $1,000 against each A and B, who own equal frontage; that A is “aggrieved” and B is not; that A proves to the satisfaction of the council that his special benefits actually received are $500; that A offers to prove that B’s special benefits actually received are $1,500; that the council agrees with A as to the truth of the matter, but holds that, since B has made no objections nor appeared to be heard, B has the right to accept the prima facie amount as the true amount; —then B receives $500 in actual benefits that he does not pay for, and A is compelled to pay (1) his special benefits actually received, (2) his proportion of the city’s contribution on account of general benefits, and (3) his proportion of the special benefits accruing to B and all others similarly situated. Now, to avoid this difficulty, it is further held that all persons whose lands are included in the engineer’s report are bound to take notice that the council will so increase or decrease the prima facie calculations as to make them equal the special benefits actually received. And, in holding that the prima facie calculations are not even prima facie the true amounts but that the amounts must be adjusted on the radically different basis of actual benefits, my brethren come *522around to the original position of discarding all the steps provided for in the sections preceding the seventh and of requiring the council to determine the assessments de novo on the basis of actual benefits, thus depriving section three of any intelligent purpose.

It seems to me incredible that the legislature intended that its positive and explicit mandates, expressed in the prior sections, should be overborne by an implication read into section seven. And I think it equally faulty to suppose that the legislature intended that the contractor should bind himself, under penalty, to perform work, for the payment of which section three gives him a lien upon the abutting property by the front foot, and then that the common council, at the procuration of the property owners, should abrogate the contract, should destroy the improvement certificates or bonds, should approve and accept the work and deprive the contractor of his pay. To quote from Hutcheson v. Storrie, 92 Tex. 685, 51 S. W. 848, 45 L. R. A. 289: “In support of this conclusion, we call attention to the potent fact that the city had entered into a contract with Storrie for the performance' of the work at a stipulated price and with the agreement that he should be paid in improvement certificates, which would hold a lien upon the property, before the amount of the assessment was ascertained. If the engineer, for instance, committed an error in estimating the cost of the work in front of Mrs. Hutcheson’s property, then a revision and correction of that act by the council could be had and the wrong could be corrected, because the contract itself furnishes' the data, and the correction would accord with the contract. If, however, the council had changed the basis of the assessment against Mrs. Hutcheson’s property from the costs of the work to that of benefits received by the property, whereby the amount assessed would be lessened, the contract would have been annuled. A construction should not be placed upon the language that would empower the city to destroy the contract without the consent of Storrie.” *523If the pavement contractors had understood this necessary result of the construction contended for in this and other cases pending in this court, they might not have been so ready to take contracts under an act which deprives them of the absolute right to definite liens on the lots of the property owners and remits them to the uncertainty of collections from the municipalities. In Cason v. City of Lebanon, 153 Ind. 567, it was held that a contractor, in contracting to do street improvement work under the Barrett law, must take notice of the city’s indebtedness; that, if the contractor could not collect from the city for its part of the liability, the whole contract was not destroyed; that the consideration to be paid by the abutting property owners was sufficient to support the contract; that' the property owners had no ground of complaint unless the contractors put in higher bids than they would have if the city’s part of the expense was collectible. This strikes me as justifiable doctrine, if the improvement itself and the liability therefor are considered as divided into two distinct parts which may be known to and examined by both the contractor and the property owners when the contract is let and before the work is begun. But under the construction of the Barrett 'law that is now adopted, the contract, at the time it is made, is severable neither as to the work nor as to the liability therefor. After the work as an entirety is done, a severance of the total liability is made; but, until then, no one could tell what was the extent of the city’s liability or what the property owners’. If, at the time the contract is entered into, the city be indebted to the limit, it is likely that the contractor’s bid would be higher on account of the uncertainty of getting his pay. Tet, no matter how high his bid, the chance of even getting his money back would depend upon a contingency, after his labor and materials were expended, entirely within the power and discretion of the adverse parties to the contract. And if, at the time the contract is entered into, the city have a debt-incurring margin to the amount of the con*524tract, the council, without the consent of the contractor, could exhaust that margin in water works, electric lights, etc., and then find that the actual special benefits to the property owners were not half the amount of the contractor’s expenditures. Street improvements are public improvements. Special benefits are benefits that are not common to the citizens in general. IIow much the contractor may collect as special benefits and how much as general benefits, is left for his adversary in the contract to say.

By my brethren’s reading of section seven, that is, that the council on the hearing upon the engineer’s report and the assessments therein shall disregard the method of assessment pursued down to that point and upon which the contract is based and shall substitute a de novo inquiry into the special benefits actually received, the legislature is accused and found guilty of ignorance of the meaning or even the existence of the word “benefits”. Yet on the statute book, as already pointed out, there were many instances in which assessments for improvements were carefully provided for on the basis or by the method.of ascertaining the special benefits as a matter of fact and limiting the assessments to that amount and apportioning the cost in ratio to such benefits; and in this very statute, the Barrett law, assessments for the construction of sewers are^ directed to be limited and apportioned according to benefits. Hereinabove only the material parts of the act relating to street improvements have been referred to. In reference to the assessment lien given in section three, the language concerning sewer construction is that “the cost of any such sewer shall be apportioned among the lands, lots, and parts of lots, benefited thereby, and according to such benefits, * * * and the owners * * * of the lots or parts of lots benefited by the construction of such sewer shall be liable, * * * for the construction of such sewer, for the benefit of such lots or parts of lots thereby.” In reference to the duties of the engineer in making his report to the council, the first six *525items from the sixth section relate to street improvements. The seventh item in that section relates to sewer construction: “Seventh. In the case of the construction of a sewer, a description of each lot or parcel of lot benefited thereby, together ivith the owner’s name, and the fair proportion of the cost of such sewer, according to the benefits conferred thereby, that should be assessed against such lot or part of a lot.” If a sewer is constructed and a landowney objects to his assessment, the hearing on the engineer’s report, provided for in section seven, gives him his “day in court” on the question of benefits because the charge on which the hearing is had is that his lands should be assessed a certain sum according to the benefits conferred. Sutherland says that attention should be given not only to the language used but also to “the words or expressions which obviously are by design omitted”. §239. See also §241. It seems strange to suppose that the legislature did not know the vital difference between the engineer’s assessment in street improvement cases and in ■ sewer cases, between the lien declared in section three for street improvements and the lien declared in the same section for sewer construction, between a method of legislatively assuming and fixing the special benefits at the cost per front foot as a matter of statute law and a method of providing for a determination of the actual benefits as a matter of fact. And the legislature’s nice particularity in making these distinctions can not be overborne excepting by reading into section seven an implication that renders meaningless many parts of the act and ignores others. All of the matter in the Barrett law in reference to sewer construction was a new feature in street improvement statutes in this State. I believe my brethren state the rule of.construction correctly: “The intention is to be ascertained by cortsidering the entire statute; and we must proceed as we would with any other composition, construing it with reference to the leading idea and purpose of the whole instrument. The general intent *526is the polar star by which the meaning of any part is to' be determined with a view to harmonizing the entire act.” But* I do not understand the purpose in stating the rule, if it is not to be followed. I find that material parts of sections three, five, six, eight, nine and ten, and the whole of the interlaced sewer law are omitted from consideration.

It is axiomatic that the constitutional provision authorizing the levy and collection of taxes is not self-executing. It is fundamental that the provision can not be made operative by the executive department, nor by the judicial department, but only by the legislative department. It is elementary that the power must be carried into execution by appropriate legislation and that no taxing bodies or officers can make a valid assessment unless they follow' with substantial strictness the precise method prescribed by the statute. If the constitutional provision be read into the statute, it is not perceived hów the situation is changed. If the provision is not self-executing as it stands in the Constitution, it is not self-executing when read into the statute. If it can not rightfully be put into operation by the judicial department as it stands in the Constitution, it can not rightfully be put into operation by the judicial department. when read into the statute. If it can only be carried into execution by appropriate legislation as it stands in the Constitution, it can only be carried into execution by appropriate legislation when read into the statute. The appropriate legislation necessary to put into execution the constitutional provision for taxation, by the method of limiting assessments to actual benefits in street improvements cases, can not be supplied by the judicial department, it seems to me, without going outside its proper limits.

The constitutional provision that “no man’s property shall be taken by law without just compensation” is likewise not self-executing. It is a negative provision, — an inhibition. If the constitutional provision be read into the statute, what is accomplished? If it is only a negative provision, *527an inhibition, as it stands in the Constitution, it is only a negative provision, an inhibition, when read into the statute. If affirmative legislation is needed to enable a city to act under the provision as it stands in the Oonstitution, affirmative legislation is needed to enable a city to act under the provision when read into the statute. In the place of the established principles for ascertaining judicially the legislative intent, substitute the following formula: Take a statute in which the only method prescribed for fixing assessments is by frontage regardless of actual benefits; read into this statute the constitutional inhibition of the laying of assessments by that method; delete from the statute all that conflicts with the inhibition; and amend the statute by adding thereto all the affirmative legislation that is needed to prescribe a method of apportioning and limiting assessments according to special benefits actually received. In other words: Take a piece of paper and erase what is on it so that it becomes a blank; then write upon it the necessary directions by which a constitutional provision that is not self-executing can be executed.

“The certainty and stability of the law are among its chief excellencies. By following this legal injunction the common law has become a symmetrical system; the same authoritative rule applied to statutory construction gives a wholesome precision to dubious generalities, and otherwise removes doubts which arise upon obscure provisions, .and has a salutary tendency to give confidence to those who must act upon statutes, but cannot settle their meaning”. Sutherland §313. “The aid of contemporaneous construction is invoked where the language of a statute is of doubtful import and cannot be made plain by the help of any other part of the same statute, nor by the assistance of any act in pari materia which may be read with it, nor of the course of the common law to the time of its enactment. Under such circumstances the court may consider what was the construction put upon the act when it first came into operation. *528Where this has been given by enactment it is conclusive. A contemporaneous construction is that which it receives soon after its enactment. This after the lapse of time, without change of that construction by legislation or judicial decision, has been declared to be generally the best construction. It gives the sense of the community as to the terms made use of by the legislative. If there is ambiguity in the language, the understanding of the application of it when the statute first goes into operation, sanctioned by long acquiescence on the part of the legislature and judicial tribunals, is the strongest evidence that it has been rightly explained in practice. A construction under such circumstances becomes established law”. Sutherland §307. “The uniform legislative interpretation of doubtful constitutional provisions, running through many years, and a similar construction of statutes, has great weight; The contemporary and subsequent action of the legislature in reference to the subject-matter has been accepted as controlling evidence of the intention of a particular act.” Sutherland §311. “It is to be observed that in the comparison of different statutes passed at the same session or nearly at the same time this circumstance has weight; for it is usually referred to as indicating the prevalence of the same legislative purpose,- as rendering it unlikely that any marked contrariety was intended”. Sutherland §283. “The practical construction given to a doubtful statute' by the public officers of the state, and acted upon by the. people thereof, is to be considered; it is, perhaps, decisive in case of doubt.” Sutherland §309.

In the light of these canons of construction, it is important to examine the interpretations given to the Barrett law by the legislative, administrative and judicial departments of the State during the ten years that elapsed from 1889 to the adoption of the “new” constitution. But my brethren pass by all of these considerations.

In speaking of the judicial history of the State prior to *5291889 they say: “That this court prior to 1889 supported the doctrine that the legislature had constitutional sanction to declare as matter of law that the special benefits to a particular district by an improvement were equally received by bordering property and equal to the total cost, has little force as an argument. The' answer to it is that the injustice and hardship resulting from the doctrine, was potential in securing legislative action for the amelioration of the rule.” The inquiry being the intent of the legislature, the so-called answer is a begging of the question. The judicial history prior to 1889 is useful in showing a'long continued judicial approval of a long continued legislative policy, and in affording the basis for the presumption that no marked contrariety was intended in the Barrett law. But the judicial history since 1889 is more important because the Barrett law itself is involved. This judicial history is found to be a continued approval of a continuation of the long settled legislative policy. Of this, my brethren say:- “There is language used in City of Terre Haute v. Mack, 139 Ind. 99, and perhaps in other cases in this and the Appellate Court, not necessary to the decision of any question presented by the record, that appears in conflict with what is here decided, but, in so far as such language may so appear, it is disapproved.” In the first place, I think that an examination of the cases will show that the language disapproved was necessary to the decision of the questions presented by the records. But, whether the language is disapproved because it is supposed to be dictum of because it is thought the cases were wrongly decided, the disapproval can not take those cases out of the judicial history of the State. As contemporaneous expositions of the legislative intent, acquiesced in by the legislature, their force is not dependent upon the correctness of the decisions from the court’s present point of view. In Quill v. City of Indianapolis, 124 Ind. 292, 7 L. R. A. 681, May term 1890, this statement was made: “Assessments for street improvements are *530■upheld on the ground that the adjacent property upon which the cost of the improvement is assessed is enhanced in value to an amount equal to the sum assessed against it and that the owners have received peculiar benefits which the citizens do not share in common.” In Barber, etc., Co. v. Edgerton, 125 Ind. 455, May term 1890, after quoting the extract hereinbefore given from Garvin v. Daussman, the court said: “We have no reason to doubt the soundness of the doctrine enunciated in this case, and under this rule sections six and seven of this act [the Barrett law] afford the owners of property abutting upon a street to be improved a remedy which the legislature, in its- wisdom, deemed sufficient for their protection.” In City of Terre Haute v. Mack, 139 Ind. 99, May term 1894, a street improvement was made under the provisions of the Barrett law. The assessments were levied against the abutting property by the front-foot rule, except on a lot situated at the corner of another street. In the case of this lot, the amount to be assessed against it as a whole was determined by the frontage rule the same as in the case of other lots abutting on the improved street. By the Barrett law the first fifty feet back from the front line is primarily liable for the assessment and the remainder back to 150 feet is only secondarily liable. The first fifty feet of this lot was owned in three separate parcels. Mrs. Pludson owned the entire frontage. Her parcel extended back nineteen feet, Eroeb and Morgan owned the next parcel, extending across the lot, having a width of eighteen and six tenths feet, and fronting on the side street. Mrs. Mack owned the third parcel within the fifty feet, extending across the lot, having a width of twelve and four tenths feet, and fronting on the side street. The engineer, in making his report, apportioned the assessment upon this lot among the three parcels in the ratio of actual benefits. The council, on the “hearing on such report and the assessments therein”, approved and confirmed the apportionment by that method. On these facts, the assessment *531against Mrs. Mack’s property was declared to be void; and the following principles were established: That the engineer’s report is the only legal basis on which any assessment can be made against any land whatever; that no assessment can be made except on an abutting lot; that such assessment can only be by the front foot; that the engineer can not lay nor can the common council adjudge an assessment on any other rule than frontage because no other basis or method is prescribed; that the revision goes only to the correction of errors, as indicated in Garvin v. Daussman, 114 Ind. 429. Among other things, the court said: “We have nothing to do with the policy, expediency or justice of the statute. * * * It is a well recognized rule in the interpretation of statutes, that the whole act and all its parts must be construed together so as to give effect to all the language employed,- and inconsistent expressions are to be harmonized to reach the real intent of the legislature. The statute ought to be so construed as to make it a consistent whole. Sutherland Stat. Oon., sections 239-246. It appears from the complaint and answer, that the engineer reported an estimate in favor of the contractors against the property-owners benefited thereby, to wit: Mary V. Hudson, on a strip or lot of ground on said Fifth street, 137.96 feet along said street and nineteen feet wide, $297.06; Froeb & Morgan, a strip or lot 137.96 feet long parallel with said street, 18.6 feet wide, adjoining the strip first described, $272.10; and Amanda D. Mack, a strip or lot 137.93 feet long, parallel with said street, adjoining the last described strip, and 12.4 feet wide, said strips or lots being lots one and two and a part of lot three, of said Blake’s subdivision. Such an estimate as this the engineer had no right to make. He was required by the statute, as we have seen, to report the amount of such cost for improvement upon the ground bordering on the improved street, which amount he was required to ascertain and fix by multiplying the average cost price by the number *532of front feet, also the name of the owner of the lot so bordering on said street. The name of the owner of such lot was Mary V. Hudson, and her lot being the only one that bordered, on the improved street, the amount due upon it he was required to ascertain and fix by multiplying the average cost price per running foot by the number of running front feet of her lot. And this he was required to report to the- common council, and such report the amended seventh section required the common council to approve and confirm, or, in case it was incorrect, to cause it to be amended, and to malee the assessment according to such report. Therefore, if the statute had been followed by the city engineer and common council, the whole amount of cost of the improvement for which the whole 150 feet back from the line of Mrs. Hudson’s lot bordering on the improved street could in any - event be made liable, would have been assessed against Mrs. Hudson’s lot number one. Without the proviso in section three, no person whose lot or ground does not border and abut on the improved part of the street could be made liable for any part of the cost of the improvement in any event. Ray v. City of Jeffersonville, 90 Ind. 567. But the proviso makes such land liable only in the event that the lots or parcels preceding it toward the front or border have proved insufficient to pay the cost of the improvement. And the amount for which such ground is in any event made liable is not fixed by any assessment or ascertainment either by the engineer or common council, but it is fixed and ascertained by the balance remaining unpaid of the whole amount assessed on the front lot or parcel after the exhaustion of the parcels that precede it to the. front. That can not be known and ascertained until such preceding parcels have been sold. Therefore the act of the engineer in fixing and apportioning any amount against the appellee’s -lot was without authority of law and void, and the act of the common council in assessing said amount against appellee’s lot was void, and she was entitled *533to have it declared so.” The engineer having made and the council having confirmed an assessment according to special benefits actually received, and their power to do so having been challenged, I can not see why the language used and a full consideration of the scope and intent of the Barrett law were not necessary to a decison of the question presented by the record. This case -was considered from the point of view of Mrs. Mack. Look at it a moment from Mrs. Hudson’s standpoint. She owned a parcel of land having 138 feet frontage and nineteen feet depth. The assessment for 138 feet frontage was $730.21. If her parcel, after being-improved, would not sell for enough to pay the assessment, and back-lying parcels had to be sold to make up the deficiency,- — and such cases have occurred under the Barrett law, — where do the special benefits come in? Though the legislature should declare as a matter of law, if it had the power, that the special benefits equaled the cost, it would be difficult for any one to point out wherein any special benefits as a matter of fact were derived from the proceeding. In Keith v. Wilson, 145 Ind. 149, May term 1896, it was stated: “The law assumes that the property will be benefited to an amount equal to the cost of the improvements thus made.” In Cason v. City of Lebanon, 153 Ind. 567, it was claimed that a railroad company was bound by a contract with the city to improve the street and that therefore an ordinance requiring the property owners to pay for the whole improvement except street and alley crossings was invalid. This court declared that “Said contract did not deprive the city of the power to improve said street in the manner alleged in the complaint, at the expense of the abutting property owners, as provided by law.” Though the statute was not particularly discussed in that case, it is sufficiently clear that the court considered, it settled that the law provided for the construction of street improvements, except street and alley crossings, “at the expense of the abutting property owners”. In Sands v. Hatfield, 7 Ind. *534App. 357, it was decided, that, if the engineer omitted from his report any abutting property, the common council, on this fact being shown by objectors at the “hearing”, should correct the report and alter the assessments to what they would have been if the engineer had performed his duties properly in the first instance. The Appellate Court, on October 24, 1899, in Indianapolis, etc., R. Co. v. Capital Paving, etc., Co. (Ind. App.,), 54 N. E. 1076, said: “Conceding that appellant’s right of way is 'land’ within the meaning of the charter, the question remains whether the right of way lying wholly within Kentucky avenue is within the designation of land abutting or bordering on the same avenue. We think the statement of the question furnishes its own solution. The city can assess only such lands as its charter designates, and, as the charter has designated lots or lands abutting or bordering on the street, none other can be •assessed. We are not authorized to give the words used in the statute other than their well-defined and commonly accepted meaning. Conceding, without deciding or assuming, that the company’s right of way is benefited by the improvement, the question is still unsolved, because the basis of the assessment is not property that will be benefited, but property that abuts or borders on the street. In authorizing the construction of such improvements, the legislature has assumed that they will benefit that property which abuts or borders on the part óf the street improved. The right to impose such a tax is based upon a presumed equivalent. It has not been assumed that any property other than that designated will be benefited. What property the local officers may believe will be benefited is not the question. If a property owner is an abutting owner, he must bear his share of the burden, because the legislature has so directed.” So it appears that the judicial department of this State has always hitherto entertained the same belief in regard to the scope and intent of the Barrett law that it did in regard to the street improvement laws prior to 1889. The legislature has *535never indicated any dissent from this judicial interpretation, but on the contrary has shown its understanding and approval thereof.

The legislative department- of this State made the method of assessment prescribed in the Barrett law conform to the constitutional requirements concerning taxation and compensation as that department has always understood them. That understanding was, in the language of Dillon (quoted in the dissenting opinion in Norwood v. Baker, 172 U. S. 269) that “whether the expense of making such improvements shall be paid out of the general treasury, or be assessed upon the abutting property or other property specially benefited, and, if in the latter mode, whether the assessment shall be upon all property found to be benefited, or alone upon the abutters, according to frontage or according to the area of their lots, is according to the present [then] weight of authority considered to he a question of legislative expediency". The legislative department of this State has always understood that the only basis for special assessments was special benefits; but that it was a matter of legislative discretion to declare absolutely by law that the special benefits were always and invariably equal to the cost of the improvement; that, if in sewer and highway and drainage acts the equality of cost and benefit were not absolutely declared by law but were left open to the determination of the truth by the assessing officers, whose assessment of actual benefits was reviewable before some tribunal duly clothed with power and procedure to that end, it was a matter of legislative grace and not a matter of constitutional compulsion; and that, if the legislature chose to exercise its discretion by declaring that the cost of street improvements should be assessed upon the abutting property by frontage, the citizen could no more complain than in any other case in which the legislature had determined a question of legislative expediency. The Barrett law was enacted in 1889, an*d it was amended in 1891. It applies to all towns and *536cities not specially classified. In 1891 the legislature passed an act concerning the government and powers of cities of 100,000 population (Indianapolis). Acts 1891 p. 137. On pages 175-181 are the provisions relating to street improvements. The method prescribed is to assess the cost upon the abutting property by frontage; and no provision is made in the act for a “hearing” before the council or board of public works, but the property owners have only the “hearing” described in Garvin v. Daussman, 114 Ind. 429. And, although at each subsequent session, acts regarding street improvements have been passed and the charter of Indianapolis has been amended, the legislature has seen no occasion for changing the foregoing method for paying for street improvements. In 1893 (Acts 1893 p-. 56) the charter of Indianapolis was so amended that the cost of paving street and alley crossings, which had before been borne by the city was assessed against the property owners; but the charter" was left unchanged so far as a “hearing” is concerned. At the same session, on March 3, 1893 (Acts 1893 p. 65), an act was approved relating to the government and powers of cities of 50,000 population' (Evansville). On pages 104-110 are the provisions relating to street improvements. These- provisions are the same as those in the charter of Indianapolis. On the same day, March 3, 1893 (Acts 1893 p. 202), an act was approved relating to the government and powers of cities of 35,000 population (Et. Wayne). On pages 243-249 are the provisions relating to street improvements. These provisions are substantially the same as those in the charter of Indianapolis and Evansville, except that the Barrett law is followed in providing for a hearing upon the assessment before the board of public works. The case of City of Terre Haute v. Mack, 139 Ind. 99, was decided on October 16, 1894. At the next session of the legislature after this decision, on March 11, 1895 (Acts 1895 p. 239), an act was approved that amended the charter of cities of 35,000 inhabitants so that the total cost of the *537improvement should be assessed by the front-foot rule upon the abutting property back to a line equidistant from the edge of the improved street and the next street parallel to it, but that, if a lot belonged to different persons, the assessment thereon should be apportioned among the several parcels according to the benefits received from the improvement by reason of being upon, near, or having access to it. Though other acts relating to street improvements were passed at this and each subsequent session, the act last above referred to remains the only instance in which the legislature has undertaken to prescribe the method of having the assessing officers assess and a tribunal determine special benefits as a matter of fact in street improvement cases. And though this act is a very limited and imperfect application of the principle, it clearly illustrates two things: Eirst, that the legislature understood the difference between “frontage” and “actual benefits”; second, that the legislature acted, as it always has, upon the assumption, sustained by the then weight of authority, that it was purely a question of legislative expediency whether or not the legislature should declare as a matter of law that each front foot was specially benefited to the extent of its pro rata share of the total cost. On the same day March 11, 1895, an act was approved that amended the charter of cities of 50,000 inhabitants. Acts 1895, p. 258. Regarding street improvements the charter was so amended as to require the board of public works, after making out the final assessment roll, to give notice of a day “on which said board will receive and hear remonstrances from persons with regard to their respective assessments. On the day named in such notice said board shall proceed to hear and determine such remonstrances and may change, modify or confirm the same. Said assessment roll shall contain the names of the property holders and a description of the property assessed for such improvement, and shall contain the pro rata assessment against each piece of property. After hearing such remonstrances said department shall de*538liver such assessment roll as modified or confirmed to the department of finance.” That the legislature intended in this, as in every other instance in which it was thought worth while to provide a “hearing” before a special tribunal, that the “hearing” should be upon the question whether or not the assessing officers had faithfully performed their duties according to statute and had correctly reported the assessments as determined by the method prescribed for them to act upon, — that the review should be for the purpose of determining the correctness of the view, — is explicitly shown in another provision of this same act. Regarding sidewalk improvements the charter was also amended so as to provide for a “hearing” after the assessment list has been prepared. “Upon the completion of said sidewalk said department shall cause to be prepared an assessment list, and shall notify such owner in the same manner as in this section above provided. Said notice shall fix a time and place when the owner may remonstrate against such assessment. On said day such owner may appear and remonstrate, and the hoard shall talce final action and shall assess such owner and such real estate for the cost of such improvement.” On March 15, 1895, an act came into effect by which the charter of cities of 100,000 inhabitants was again amended. Acts 1895 p. 38-1. Some minor changes were made in respect to collection of instalments of assessments, etc., but the charter was not amended in the matters involved in the amendments of the charter of Et. Wayne or of Evansville. At the next session on February 23, 189 Y (Acts 189Y p. 5 6), an act was approved whereby the charter of Indianapolis was further amended in reference to street improvements. It is a matter of common knowledge, that the practice was generally adopted by city treasurers of notifying property owners by mail of the amounts of their assessments after they came into the hands of the treasurers for collection, and to state in the notice that it was given voluntarily and not as a duty required. This amendment made the giv*539ing of such .notice by mail obligatory upon the treasurer of Indianapolis, and further required him to publish a notice to all persons who had failed to avail themselves of the privilege of paying in instalments that unless payment was made within thirty days proceedings for the collection of assessments would be instituted. On February 26, 1891, the charter of Indianapolis was further amended. Acts 1891 p. Y9. Some details about the cost of street and alley intersections, the issue of bonds, and the collection of instalments were changed; but the proceedings for fixing the final assessments by the board of public works were left as they were prescribed in the original act of 1891. At the last session of the legislature, on February 2, 1899, an act came into effect, by which the Barrett law as applied to cities between 5,800 and 5,910 population was amended. Acts 1899, p. 8. It provides for the collection of the total cost, including that of street and alley crossings, from the abutters in proportion to frontage. On March 3,1899, an act was approved that related to the government and powers of cities of 23,000 population (Terre Haute). Acts 1899 p. 210. In its essential features it is the same as the charters of Evansville and Ft. Wayne. On pages 314-322 are the provisions concerning street improvements. The assessments for that purpose are to be made by the front-foot rule. But the assessments for sewer construction, according to the^ directions of every one of these acts, are to be laid upon the lands found to be benefited and are to be apportioned according to and not exceeding the special benefits actually received. On the same day, March 3, 1899, an act was approved that again amended the charter of Indianapolis in reference to street improvements. Acts 1899 p. 399. The amendment provides for an appraisement of the abutting property exclusive of improvements, and forbids the ordering of any improvement which, when completed, is to cost more than 25 per cent, of the aggregate appraised value. This still leaves any parcel of abutting property liable to an *540assessment by frontage that might exceed the value of that parcel. And the “hearing” before the council or board of public works as to the correctness of the assessments, on which the present construction of the Barrett law is built up, has remained unprovided for to the end.' Is it conceivable that the legislature foresaw the “new” constitution and entertained the deliberate design of making some of these acts constitutional and others unconstitutional? Assuredly not. This whole series of acts, from the Barrett law of 1889 to the last amendment of the charter of Indianapolis in 1899, evidences a continuous and consistent legislative policy. That policy was to put street improvements upon a different basis from sewers and ditches and roads and other like special proceedings. These street improvement statutes are the ones my brethren should have examined, if they were seeking acts in pari materia by which to determine the scope and intent of the Barrett law. The sewer and ditch and gravel road laws are only in pari materia with the sewer law interwoven in the act of 1889, which my brethren pass by without notice. The legislature never doubted that it had the power to do as it did. It assumed that it was purely a question of legislative expediency to require the whole cost of street improvements to be assessed upon the property by the running foot.

The administrative department of the State, as represented in the various towns' and cities, have uniformly acted under the law on the same, assumption. It is a matter of common knowledge that the people, the lawyers, the contractors, the municipal officers, the legislature, and the courts, have all been in accord in the understanding that under the Barrett law the city paid for street and alley crossings and the abutters paid the rest of the total cost of street improvements according to a uniform) rate per front foot, — until the exigency arose, after the Norwood-Baker decision was studied, of hunting for some other meaning.

If the continuous and consistent interpretation of the *541Barrett law, during all the years since its passage, by all the departments of the State, were looked to, and if the canons of construction as laid down in the books were followed, that construction should be accepted as decisive.

Thus far I have been stating the reasons why I am unable to join my brethren in finding in section seven the “implied power” that authorizes the council to change the basis of the assessments. But it seems to me there is a vital difference between a power and a duty, between the right to do a thing and the obligation to do it. In this case the record shows it is admitted that the council has already decided that it will not accord the property owners a hearing on the question of the amount of special benefits actually conferred by the improvement. Where is the command in the statute that forbids the council from basing the assessments upon the report of the engineer after it has been amended, if necessary, to conform to what.the statute'Commanded the engineer to do in the first instance? If the legislature delegated to the council a discretion in the matter, the property owners could not base a suit for mandatory injunction upon what they deemed a mistaken exercise of that discretion. The statute says that the council “may adopt, alter or amend the engineer’s report and the assessments therein,” not “shall change the basis of assessments”. The statute permits the council to pay all or any part of the total -cost of the improvement out of the "treasury. This is purely and simply a matter of option. If the council paid the totjal cost, there would be no assessments. If the council determined to pay a certain portion of the total cost, the residue of the total would have to be assessed against the abutting property in the method provided by the statute. In this case the record shows it is admitted that the council has already ordained that the total cost sháll be borne by the abutters. Now, if the improvement is to cost $10,000 and it should be found on the supposed “hearing” that the aggregate of special benefits actually received by the several *542parcels of abutting property was only $8,000 (though the complaint avers and the demurrer admits that the abutting property is not specially benefited at all as a matter of fact), what good would it do to have the total cost apportioned among the abutters in the ratio of the special benefits as among themselves? Each abutter would find his property assessed with 125 per cent, of his special benefits. So, it becomes necessary to find, both in the law and in appellee’s ordinance under the law, not only the right but the duty to pay the $2,000 excess out of the general treasury, although it is agreed that the city ordered the improvement with the intention, and in the belief that it had the power, to ordain “that the cost and expense thereof, including advertising, labor and material for the same, be assessed against the property on the line”. And in the opinion filed by my brethren, though I notice that considerable attention is given, to making out the “implied power”, I fail to find anything but a fiat that transforms the “implied power” into an “imperative duty”.

The views I entertain are supported by authority. In Hutcheson v. Storrie, 92 Tex. 685, 51 S. W. 848, 45 L. R. A. 289, and in Lyon v. Town of Tonawanda, 98 Fed. 361, statutes were involved that are essentially the same as the Barrett law; and in Charles v. City of Marion, 100 Fed. 538, the Barrett law was considered. I may also cite the last page of my brethren’s opinion, wherein the rules regarding “implied powers” are properly indicated.

Not only am I constrained to believe that the Barrett law as enacted is unconstitutional, but I am also of the opinion that the Barrett law as now construed by my brethren is unconstitutional. And I will suggest some of the reasons for thinking so. '

The taxing power is committed to the legislative department and can not be conferred upon the judicial. All assessments must be made by administrative officers whose sole authority is to follow with substantial strictness the method *543pointed out by law. The property owner is entitled to a “day in court” to challenge the assessment. The court can not make the assessment, but can only hear the challenge of the assessment already made and then enter judgment confirming or correcting the assessment. If the engineer does not make the assessment as an administrative officer, and if the council does not merely review the assessment as a court, but if on the contrary no assessment is made until the council makes it on the “hearing”’, the result is either that the assessment is made by a judicial tribunal, or that the “hearing” is for the purpose of enabling an administrative body to determine what assessment to make, with no opportunity for the property owner thereafter to challenge its correctness. A common council may at one time exercise legislative, at another administrative, and at another judicial, functions; but it can not have two or three characters at the same time.

If the prescribed mode of fixing assessments by frontage is deleted from the statute as enacted, there is not a word left limiting the council to any method or prescribing any rule of procedure whatever. There would likely be as many methods as there are towns and cities in the State. Uncertainty would probably prevail until, in suits involving the Barrett law as now construed, this court formulated a definite and uniform procedure. I can not concur in the statement that “The.absence of an express rule for guidance in the exercise of the power does not impair it. It is sufficient if the power to change the assessment from the frontage rule exists”. Regulations and methods in all tax matters must be prescribed by law. State Board v. Holliday, 150 Ind. 216, 42 L. R. A. 826. In the syllabus of Barnes v. Dyer, 56 Vt. 469, it is said: “A statute empowering the authorities of a city to construct sidewalks and make local assessments on the property fronting the same Tor so much of the expense thereof as they shall deem just and equitable1, is unconstitutional, in that there is no fixed, cer*544tain, and legal standard for assessment.” In New Brunswick Rubber Co v. Commissioners, etc., 9 Vroom 190, 20 Am. Rep. 380, the following appears: “It is not sufficient that the legislative act merely declares that the cost, or a part of the cost of the improvement, shall be assessed upon the lots drained by the sewers to be built. It must, as well, establish some rule — some definite scheme — within constitutional limits, for the apportionment of the tax upon the lands on which such special burthen is imposed. An act of the legislature, directing a tax for a local improvement to be imposed upon particular lands, to be legal or effectual, must consist of something more than a mere authorization to assess a sum of money, the cost of a local improvement upon the designated property — the act must determine the mode of distributing the burthen; the property out of which the tax is to be made must be designated, and some certain standard of assessments established; it cannot properly be left by the legislature to the discretion of others to fix the method.” Courts, for example, A property owner is entitled to a law that operates according to constitutional principles without his intervention. According to the Barrett law as now construed, a property owner does not have a tax that is assessed on the basis of his actual special benefits without affirmative action on his part at the “hearing” to see that it is put on that basis. Further, a lawful assess-' ment must show on its face the principle according to which it is laid. New Brunswick Rubber Co. v. Commissioners, supra. This would appear under the Barrett law as enacted, but not as construed. It seems to me that the property owner is subjected.to a tax “without due process of law”.

The abutters alone are named in the engineer’s report. My brethren hold that all such persons are bound by the published notice to know that assessments will be made at the hearing which shall correspond with special benefits actually received. They do not hold, as I understand them, that persons who are not abutters must take notice that their *545back-lying property will be assessed for actual benefits. The Barrett,law as enacted made such persons secondarily liable. This was so, as was pointed out in City of Terre Haute v. Mach, 139 Ind. 99, not because they were included in the assessment either as made by the engineer or as confirmed by the council, for they were not, but because the statute made them sureties, so to speak. Now, under the Barrett law as enacted, the legislature created a uniform taxing district, over all of which the contractor had his lien. But under the Barrett law as construed, an irregular district is created, without any valid reason inhering in the subject-matter of the act to warrant the irregularity; and the lien of the contractor is to that extent diminished. If A owns a parcel having fifty feet frontage and 150 feet depth, and B owns a parcel having fifty feet frontage and twenty feet depth, and 0 owns a parcel having fifty feet width and 130 feet depth and lying back of B’s parcel, it seems to me that, if A is liable for actual special benefits on his 7,500 square feet, and B is liable on his 1,000 square feet, and O is not liable at all on his' 6,500 square feet, not only is the taxing district irregular without reason, but the parties are not subjected to a “uniform and equal rate of assessment”.

The notice provided for in section seven is not sufficient to give the council jurisdiction over any subject except “objections” nor any person except one “aggrieved”. In Kuntz v. Sumption, 117 Ind. 1, 7, 2 L. R. A. 658, the court said of the board of equalization statute: “It does provide notice sufficient for two classes of judgments, but for no others. It provides for notice sufficient as to all general changes in the levy, and sufficient as to all who have complaints to make, and over these matters jurisdiction arises when the notice is given as the statute directs. But there is no provision for notice to the individual taxpayer whose list is to be added to or whose valuation is to be increased. -X- x x This notice, it is obvious, can not require every *546taxpayer in tlie county to be in attendance at the meeting of the board to see that no additions are made to his list.”

The contract is made between the contractor and the council for the city.' Under the Barrett law as enacted, the liability of the city was limited to the cost of street and alley crossings; and under section seven the council had no discretion, and no duty but to see that the balance of the cost was properly apportioned among the property owners according' to frontage. The council, for the city, has control of the expenditure of the general fund; but, under the Barrett law as enacted, no conflict of interest arose among the council and the property owners and the contractor. Under the Barrett law as construed, however, a three-cornered conflict of interests at once arises, and the council is made the exclusive and final judge in its own case. In Board, etc., v. Heaston, 144 Ind. 583, 55 Am. St. 192, it was held that a board of county commissioners in allowing or disallowing claims against the county acted merely in the capacity of an auditing committee. The court said: “If it was a suit against the county for the recovery of money in the sense urged by counsel, then the claimant was the plaintiff and the county the ■ defendant, and the commissioners were in the discharge of a double duty: acting as a court; and also as the representative of the defendant, or otherwise the county could not be said to be in court. Such a construction as contended for apparently leads to an absurdity. It would follow that the court and the party defendant were virtually the same. It is an axiom of the law that no man can be a judge in his own case.” A proper method of giving the people “due process of law” is illustrated in our statute in reference to the opening of streets. In that statute it is recognized that the general treasury will be subjected to an indefinite liability, and the city is not made the exclusive and final judge in its own case.

■ On the whole, it seems to me that my brethren in steering away from the rock of Scylla have plunged into the whirlpool of Oharybdis.