the sidewalk is not included, it being restricted entirely to the footway.1

Sewers.-Where there is no express power to construct sewers and assess the expense, they have been justified under the power to make regulations for the preservation of the public health; and in like manner they are considered as included in the grant of power to a municipal corporation to repair and keep in order its streets, as one of the incidents of that power. The power is usually granted in express terms, and the expense of the construction is apportioned just as other local assessments, according to benefit, on abutters, or in such other mode as may be adopted in the particular State. In Massachusetts, since the decision in Boston v. Shaw, the construction of sewers and the apportionment of the expense is regulated by statute according to the principle of benefit. Under this statute an apportionment according to the value of the land draining into the sewer, is regarded as the proper mode, and an apportionment according to the value of the land and buildings was declared unreasonable and void. The assessment is regarded as being made under the taxing power, and not under the police power.

A citizen owned land on Elm street, which was drained by a private drain entering the sewer on Elm street, and being discharged through the sewers on Front and Main streets into Mill Brook. Before the improvement of Mill Brook as a sewer, the sewers on Front and Main streets were often choked up, and the cellars on those streets flooded, but the improvement of Mill Brook remedied this evil. The court refused to charge as a matter of law, that the owner of land on Elm street was not benefited by the improvement of Mill Brook. On the hearing of a petition to revise the assessment by a jury, as provided in that State, the court say that the benefit in such cases is not like that under the betterment laws, where the exact degree of benefit conferred upon each particular estate is determined, but that it is more analogous to the case of ordinary taxes, in which all estates belonging to the class liable to assessment, are to be assessed in proportion to their just value.5 In another case it is said that the benefits should be proportioned to the value and extent of the land and the increased facility afforded to it for drainage. The fact that the land

'Boston v. Shaw, 1 Metc. 120.

1 Williams v. Bruce, 5 Conn. 190. 'Stroud v. Pennsylvania, 61 Penn. St. 255; Philadelphia ». Tryon, 35 Penn. St. 40; State v. Jersey City, 1 Vroom, 148; State v. Jersey City, 5 Dutch. 441; St. Louis v. Oeters, 36 Mo. 456.

4 Butler v. Worcester, 118 Mass. 168; Wright v. Boston, 9 Cush. 233; Downer v. Boston, 7 Cush. 277; Patton v. Springfield, 99 Mass. 627.

Workman v. Worcester, 118 Mass. 168.

is released from the servitude of an old drain, is not to be considered.1 Land assessed for an old sewer may be again assessed for a new one, if benefited thereby. The fact that the sewer is constructed so as not only to carry off the sewage from the streets and houses, but also to divert the waters of a brook, does not affect the validity of the assessment for its construction as a sewer, nor does the fact that it is constructed larger than is actually necessary for present use, affect such an assessment. Where the assessment for a sewer was to be on the property benefited, a sewer was made larger than was necessary to drain the lands on that street, in order to receive the waters of a surface brook, which was becoming offensive because of the drainage of an extensive neighborhood. It was claimed that the land in the neighborhood of the brook should be also assessed, but it appearing that the lands on the street where the sewer was constructed, were benefited to an extent equal to the cost of the sewer, the assessment was confirmed. A city having authority to construct sewers may cause them to empty into tide-water, but it has no right to discharge mud and filth through such sewer in such quantities as to create a nuisance.

Levee and Drains.-The construction of levees to prevent the overflow of large bodies of land, or to reclaim such land and make it valuable for agricultural purposes, is regarded in many of the States as a proper subject of governmental action, without reference to the question of public health, and the expense of such construction is defrayed by taxation, which may be laid in the discretion of the legislature, upon the lands or persons supposed to be benefited. In these States the reclamation of the lands, or their preservation in a condition to be useful, is considered a public purpose, so as to justify the levy of the tax, and the special benefit to the owners of lands in the district protected by the levee, authorizes the mode of taxation by local assessment. The location of large and valuable tracts of land, and the necessity for their improvement have no doubt had much influence, and a very proper one too, in causing the courts of these States to reach this conclusion.

1 French v. City of Lowell, 117 Mass. 363.

2 State v. Jersey City, 29 N. J. Law, 441.

3 Bennett v. New Bedford, 110 Mass. 433.

5 Hungerford v. Hartford, 39 Conn. 279.

Haskell v. New Bedford, 108 Mass. 208.

4 Cone v. Hartford, 28 Conn. 363.

Daily v. Swope, 47 Miss.; Alcorn v. Hamer, 38 Id. 652; Williams v. Cammack, 27 Id. 209; Egyptian Levee Co. v. Hardin Co. 27 Mo. 495; McGhee v. Mathis, 21 Ark. 40; Richardson v. Marks, 16 La. Ann. 429; Crowley v. Crossley, 2 La. Ann. 329; see New Orleans v. Draining Co. 11 La. Ann. 338, power delegated to a private corporation, on the ground of promoting the health of the city. Contra, City of Philadelphia v. Scott, 2 Weekly Notes of Cases, 714; s. c. 14 Alb. Law Jour. 239.

In other States, while it is admitted that lands may be drained, and the expense paid by a system of taxation on the owners of the land benefited, if there be a question of health involved, so as to make the purpose a public one, yet they do not admit that a tax can be levied where the object is merely to render the lands more productive as farms. When the trustees of the township determine that the public health, convenience and welfare will be promoted by the drainage of a particular district, then it may be drained and a tax levied. In Indiana, wet and swampy lands are allowed to be drained by the consent of the owners. Articles of association are filed by those consenting, application is made to the court to appoint appraisers, a survey is made and estimates filed. If the expense exceeds the value of the lands, the proceeding ends; if not, the expense is assessed according to benefits conferred. A majority of the association has power to manage the affairs of the association, in effecting the drainage after the tax is assessed. In proceedings under these drainage acts, all the requirements of the statute must be strictly complied with, just as in other local assessments which are made against the consent of the owners.

In New Jersey, if the legislature determines that it is for the public good that a large tract of swampy or marsh land should be drained, that is conclusive as to the public purpose, and it may be accomplished by means of assessment according to benefits, under the taxing power; but it seems that drainage laws without reference to the public good, merely for the benefit of the proprietors, are classed under the police power, and regarded as similar to regulations of party fences and party walls.

In California, the draining of land may be accomplished by means of local assessments, the reclamation of large tracts of wet and swampy lands being considered a proper object to be accomplished by means of taxation, and one that in view of the great benefit to the public, in the promotion of health and advancement of the public good, should be considered a public purpose. The mode adopted is by local assessments.5

1 Anderson v. Kerns Draining Co. 14 Ind. 199; Reeves v. Treasurer of Wood Co. 8 Ohio, N. S. 333.

2 Sessions v. Cronklinton, 20 Ohio, N. S. 349.

3 O'Reilly v. Kankakee Valley Draining Co. 32 Ind. 169; Jordan Assoc. v. Wagoner,

33 Ind. 50, 268; Ethison v. Bresenback, 39 Ind. 362.

4 Tide-water Co. v. Costar, 3 C. E. Green, 518; State v. Newark, 27 N. J. Law, 188, 194.

5

Hagar v. Supervisors of Yolo, 47 Cal. 222. The authority must be strictly pursued. People v. Hagar, 49 Cal. 229.

In New York, drainage acts, where commissioners are appointed to execute the work and assess the damages, are considered valid; but the land taken for the drain is taken under the power of eminent domain, and unless the owner grants the land for a consideration, there must be a condemnation and appraisal thereof; the land cannot be taken for such a purpose without compensation. In these cases the parties whose land was improved do not seem to have objected, it was only the person whose land was taken.

In Michigan, where drainage is allowed under certain statutory regulations, the collection of a tax under the acts was restrained, because of the uncertainty and inequality of the assessment made. The legislature passed an act that all orders drawn on account of the ditches constructed under these acts, should be treated as drawn on the general drainage fund of the county; that the board of supervisors ascertain the expense of these ditches and apportion it among the townships of Saginaw county, fifty per cent. of the orders to be paid on return of the tax roll of 1871, and the balance in the same manner in 1872. The act was declared void, it being considered as an attempt to reverse the decisions of the courts. The legislature has no power to set aside a judgment or decree. Regarding it as imposing a tax, the court say: "It is not in the province of mere legislative discretion to impose pecuniary burdens upon the people. The power to tax is indeed plenary; but taxation implies public interests, and in cases like those now in question, it also implies proceedings in pais, in some of which the tax-payers have a right to take part and be heard." 2

Water Pipes.-The expense of constructing aqueducts and laying water pipes may be raised by an assessment on the real estate along the line of the streets.3 In the case of Allentown v. Henry, a water company was authorized to furnish the city with water, and lay reasonable assessments on dwellings in the city. The works were constructed by the company, bought by the city, and the powers granted to the company vested in the city. The power to make assessments was declared valid, as the value of the dwellings was enhanced by the water supply. Where a city was empowered to construct water works, and issue bonds in payment thereof, and the council was authorized "to establish water rates to be paid for the use of water, so as to provide annually, if practicable, from the net income and re

People v. Nearing, 27 N. Y. 306; People v. Haines, 49 N. Y. 587.

2 People v. Supervisors of Saginaw, 26 Mich. 22, 29.

3 Allen v. Drew, 44 Vt. 174; Northern Liberties v. Swain, 13 Penn. St. 113; Northern Liberties v. St. John's Church, Ib. 104; Allentown v. Henry, 73 Penn, St. 404.

ceipts therefor, for the payment of interest and not less than one per cent. of the principal." The council established nominal rates, and it was held, that they could not be compelled by information in the nature of quo warranto, to perform this duty of imposing the rates.' None of these cases touch the question whether the expense of constructing water works can be placed wholly on the land, or land and buildings, along the line of the water pipes, according to benefits, value, or other mode.

Turnpikes. In two of the States, the principle of local assessments has been applied to the construction of turnpikes through an agricultural district, the assessment being made on all lands within a specified distance of the road. But in Pennsylvania it is held that the system of local assesments cannot be applied to agricultural districts, but can only be used in cities compactly built, where the benefit from the improvements can be seen and traced. The Pennsylvania courts stand alone on another question, whether the power to pave is a continuing one. They claim that when a street is once paved by means of local assessments, if it needs repair or improvement afterwards, the expense should be defrayed by general taxation. The benefit from the repair, it is claimed, is one that cannot be traced in its effects on the adjoining lots. This is the tenor of the decision, although much stress was laid upon the particular statute which declared that the improvement was a public one. In other States the power is considered a continuing one.5

Parks.-The Missouri legislature incorporated a district outside of the city of St. Louis, to establish Forest Park. Commissioners were appointed with exclusive management and control, who did not reside in the district. It was to be supported by a tax on the lands in the district, but no consent was to be obtained of those residing in the district. The act declared that it was for a municipal purpose of great importance to the city of St. Louis, conducive alike to the dignity and character of the city, and the recreation, health and enjoyment of its inhabitants. This act was declared to be void, as authorizing a local tax for a purpose of a general public character. The court was of opinion that the doctrine of taxation by benefits did not

1 Attorney General v. City of Salem, 103 Mass. 138.

2 Goodrich v. Turnpike Co. 26 Ind. 119; Malchus v. Highlands, 4 Bush, 547.

3 Washington Avenue, 69 Penn. St. 352.

4 Hammett v. Philadelphia, 65 Penn. St. 146.

McCormick v. Patchin, 53 Mo. 33; Municipality v. Dunn, 10 La. Ann. 57; Gurner v. Chicago, 40 Ill. 165; La Fayette v. Fowler, 34 Ind. 140; State v. Jersey City, 34 N. J. Law, 277; Williams v. Detroit, 2 Mich. 560.