sess it on the adjoining property according to the value of the property; third, they might assess it on the adjoining land according to the benefit conferred on the adjoining land by the improvement (and here the benefit must be special, peculiar and exceptive); fourth, they might assess it on the abutting property "by the front foot of the property bounding and abutting upon the improvement" (Norwood v. Baker, 172 U. S. 269, at 273). This $2,218,58, it is said, was ordered to "be assessed as a benefit to her upon her land abutting upon the land so taken" (158 Mo. 542). The tax was held invalid and a sale of the land (supposed to be benefited) was enjoined because the land was not assessed according to benefit. "The result was that the village acquired her land for nothing and charged her $218.58 for having deprived her of it."

The writer is unable to understand how it can fairly be said "that the village acquired her property for nothing," when the village paid her $2,000 for it, the full assessed value thereof, the verdict being acquiesced in both by the village of Norwood and by Mrs. Baker. Mrs. Baker did not sue for the value of her land taken for public use, and fixed in amount by the court and jury under the laws of Ohio. If she had sued for the money, the village of Norwood would have successfully pleaded and proved payment. The village "charged her $218.58 for having deprived her of it" (her land).

What land did they deprive her of? What land did the village of Norwood acquire for nothing? Certainly not the land embraced in the street and condemned, for that was paid for in full. The strip condemned and paid for was 50 by 300 feet, Mrs. Baker owning the land on each side of the street. Suppose that Mrs. Ellen Jones had owned this strip of land 50 by 300 feet, and it had been condemned and "just compensation" assessed at $2,000, and paid to Mrs. Jones; could it have been fair

ly said that the village acquired Mrs. Jones' land for nothing and charged her $218.58 for having deprived her of it? Mrs. Baker's land was taken for public use at a price (paid) satisfactory to her and the village of Norwood. The 50 by 300 feet strip of land belonging to Mrs. Baker was taken for public use but not without "just compensation.”

It was undoubtedly taken for public use but "just compensation" was paid to her for it. No wrong was done or attempted to be done under the power of "eminent domain" so far as this strip of land (50 by 300 feet), belonging before the condemnation to Mrs. Baker, was concerned. The private property of Mrs. Baker, other than this 50 by 300 foot strip, was about to be taken for public use without just compensation. This land, so threatened to be taken for public use without just compensation, was not the 50 by 300 foot strip of land condemned and paid for for the avenue opened, but it was the adjoining or abutting property belonging to Mrs. Baker, the sale of which for this local tax was enjoined. Mrs. Baker enjoined the sale of her land. The injunction was made perpetual. Suppose the injunction had been dissolved and her land had been sold for $2,218 and costs of sale, then she would have lost the land in the street or the $2,000 she received for it, and would have had not a cent left and no land. She lost her adjoining land under the tax-power and this included $2,000 condemnation money for the land taken for the street.

"A public improvement having been made, it is beyond question a legislative function (and a common council duly authorized as in this case has legislative powers) to determine the area benefited by such improvements and the legislative determination is conclusive." [Dissenting opinion in Norwood v. Baker, 172 U. S. at "4th" p. 297.] "The legislative act charg

ing the entire cost of an improvement upon certain described property is a legislative determination that the property described constitutes the area benefited, and also that it is benefited to the extent of such cost." [Same opinion, p. 299.] Again, page 300: "Here the plaintiff does not allege that her property was not benefited by the improvement and to the amount of the full cost thereof." Why allege that her property was not benefited when the legislative act concludes her on that subject? If there had been incontestible evidence that Mrs. Baker's land had been benefited to the extent (say) of five thousand dollars, no one can see any reason against a tax on her adjoining land of $2,000 for land taken and $218 costs.

"It seems indisputable that if no inquiry into benefits was required in the Parsons case (170 U. S. 54), and that act was constitutional, neither can the charter and ordinance of Kansas City which also provide a comprehensive system of improvements be held unconstitutional. In neither case is there any inquiry as to benefits nor is the tax levied according to actual benefit, but both alike rest upon the conclusive presumption indulged by Congress in the one case and the charter in the other, that such an improvement is a benefit to the abutting property." [Barber Asphalt Paving Co. v. French, 158 Mo. 534, at 551.]

"It is true that in many jurisdictions, certainly in this State it is true, that municipal acts, whether in the form of ordinances or resolutions, may be impeached for fraud at the instance of persons injured thereby." [Ib., p. 547.]

If there is a conclusive presumption that the property-owner has been benefited, how can he prove he has been injured? How can the legislative act be impeached? A fraud which is a benefit to the party de

frauded is something rather new in modern law and is peculiar (so far) to tax-bills.

"But aside from this, the question of whether the plaintiff's lots would or would not be benefited by the construction of this sewer, is a legislative and not a judicial question, and the municipal legislature adjudged that they would be benefited, and fixed the ratio of such benefit when it established the joint sewer district, and as there is no question of fraud or oppression of the municipal assembly in so passing such ordinance (even if such allegation would convert the question into a judicial one, as to which it is not now necessary to decide) such judgment of the assembly is conclusive.” [Prior v. Construction Co., 170 Mo. 439, at 451, bottom.]

This theory of a conclusive presumption of benefit is contrary to the previous holding of the courts. The courts had held (A. D. 1884) that a defendant in a suit on a tax-bill may "entirely defeat a recovery by overthrowing the theory of benefits conferred" [City to use v. Ridenour, 84 Mo. 253, loc. cit. 261]. How can this be done if there is a legislative, conclusive presumption of benefits? Shortly afterwards the court below "refused to allow defendant's offer of testimony to show that the lot was not benefited by the improvement, but that its value was entirely destroyed thereby. [Moberly v. Hogan, 131 Mo. 19, loc. cit. 22 bottom, and top 23.] The inconsistencies involved in constitutional law on this subject are treated further in the next chapter.

CHAPTER 12.

RESULTS-INCONSISTENCIES.

In the Constitution of Missouri, the clause as to damaging private property for public use was first introduced in 1875. Prior to that time the State, or any corporation under its authority, might improve a public highway by lowering or elevating the grade or by cuts and fills so as to destroy all access to abutting property. Such cases were called "damnum absque injuria." A notable instance occurs in St. Louis v. Peter Gurno, 12 Mo. 414, et seq. (A. D. 1849). The suit was for damages occasioned in 1843 to Mr. Gurno's property by "grading and paving" certain streets adjoining this property. After reciting the evidence, the reporter says, p. 416: "And thereupon the jury found the defendant guilty, and assessed the damages at $1,675." As a matter of fact, Mr. Gurno's property was damaged to that extent, but the court reversed the judgment, holding that even if the city of St. Louis did injure Mr. Gurno to that amount, still he could recover nothing. The city had a right to ruin his property without being liable for anything.

Taylor et al. v. St. Louis, 14 Mo. 20, was a suit of like character decided in 1851. The amount of damage is not stated as the court below must have followed St. Louis v. Peter Gurno, supra; the first lines of the opinion so state. Say the court in Taylor v. St. Louis, 14 Mo. 20, at 24:

"To grade a street or alley already dedicated to public use is not an exercise of the eminent domain, so as to require compensation. [Is it now?] It is not appropriating private property to public use, but sim