Assessment for improvements.

Taxes are impositions for purposes of general revenue, while assessments are spe cial and local impositions upon property in the immediate vicinity of an improvement, for the public welfare, which are necessary to pay for the improvement and made with reference to the special benefit which such property derives from the expenditure. Palmer v. Stumph, 29 Ind. 329, 333, 335; Winona & St. P. R. Co. v. City of Watertown, 44 N. W. 1072, 1073, 1 S. D. 46; Holley v. Orange County, 39 Pac. 790, 792, 106 Cal. 420; Howes v. City of Racine, 21 Wis. 514, 516; Hale v. City of Kenosha, 29 Wis. 599, St. 128, 130, 51 Am. Rep. 509; Ridenour v. 605; Lima v. Lima Cemetery Ass'n, 42 Ohio Saffin, 12 Ohio Dec. 238, 243; Sharpe v. Speir (N. Y.) 4 Hill, 76, 82.

Under Rev. St. § 3224 [U. S. Comp. St. 1901, p. 2088], declaring that no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court, it is held that the word "tax" The word "tax" or "taxes" does not inincludes taxes which had been illegally and clude local assessments, unless there be

something in the statute in which it is found to indicate such an intention. Kilgus v. Trustees of Orphanage of Good Shepherd, 94 Ky. 439, 444, 22 S. W. 750, 757; Ittner v. Robinson, 52 N. W. 846, 847, 35 Neb. 133; First Division of St. Paul & P. R. Co. v. City of St. Paul, 21 Minn. 526, 529; In re Ford (N. Y.) 6 Lans. 92, 95; Taylor v. Boyd, 63 Tex. 533, 541; Pettibone v. Smith, 30 Wkly. Notes Cas. 325, 329, 24 Atl. 693, 150 Pa. 118, 17 L. R. A. 423; City of Denver v. Knowles, 30 Pac. 1041, 1042, 17 Colo. 204, 17 L. R. A. 135 (ci.ing Farrar v. City of St. Louis, 80 Mo. 379; Adams v. Lindell, 5 Mo. App. 197; Hammett v. City of Philadelphia, 65 Pa. [15 P. F. Smith] 146, 3 Am. Rep. 615; Emery v. San Francisco Gas Co., 28 Cal. 345; Speer v. City of Athens, 85 Ga. 49, 11 S. E. 802, 9 L. R. A. 402; Hale v. City of Kenosha, 29 Wis. 599).

of tax, still there is a well-understood difference in the meaning of the two terms as generally used in the statutes. The word "tax" is used when one is speaking of the annual tax, or any other tax which forms a part of the general burden for public purposes; while the word "assessment" is used to designate the amount to be paid into the public treasury as a part of the benefit specially received by reason of some local improvement, and it cannot be assessed unless there be such benefit, and even then not beyond that. The value of the estate is always diminished by the first, but never by the second. This distinction between the usual legal signification of the words seems to be quite generally recognized. Boston Asylum and Farm School for Indigent Boys v. Street Com'rs of City of Boston, 62 N. E. 961, 962, 180 Mass. 485.

The word "assessment" is frequently applied to the special tax imposed upon real estate which is but a small part of some political division for some improvement specially adding to the value and by which the public is also benefited, as when the expense of making streets in front of certain lots is assessed on such lots; but if the same im

The words "taxation" and "assessment," as used in the state Constitution, do not have the same signification. The power of taxation is a power which the Legislature takes, from the law of its creation, to impose taxes upon the property of the citizens for the support of the government. The word "assessment" is employed to represent those local burdens imposed by municipal corpora-provement is made at the expense of the tions upon property bordering upon an improved street, for the purpose of paying the cost of the improvement, and laid with reference to the benefit the property is supposed to receive from the expenditure of the money. Property not benefited by the improvement cannot be subject to an assessment

for it. The power of assessment cannot be exercised as an independent or principal power, like that of taxation, but must be used as an incident to the power of organizing municipal corporations. Taylor v. Palmer, 31 Cal. 240, 250.

A local assessment can only be levied on land. It cannot, as a tax can, be made a personal liability of the taxpayer. It is an assessment on the thing supposed to be benefited. A tax is levied on the whole state, or a known political subdivision, as a county

or town.

entire city or ward in which it is, then the imposition upon the property of the entire city or ward to pay the expense of such improvement is a "tax," in the ordinary sense in which that word is used. Howes v. City of Racine, 21 Wis. 514, 516.

Mr. Justice Brewer, "proceed upon the theory "Taxes proper, or general taxes," says that the existence of government is a necesto pay its expenses, that for those means it sity, that it cannot continue without means

*

has the right to compel all citizens and property within its limits to contribute, and that for such contribution it renders no return of special benefit to any property, but only secures to the citizen that general benefit which results from protection to his person and property, and the promotion of those various schemes which have for their object the welfare of all. On the other hand, special assessments or special taxes proceed upon the theory that, when a local improvement enhances the value of neighboring property, that property should pay for the improvement." After citing several authorities in support of these propositions, among which is Cooley, Tax'n, p. 416, c. 20, he further says: "These distinctions have been recognized and stated by the courts of almost every state in the Union, and a collection of the cases may be found in any of the leading text-books on Taxation. Founded on this distinction is a rule of very general acceptance-that an exemption from taxation is to be taken as an exemption simWhile, in a general sense, it may be ply from the burden of ordinary taxes, taxes said that a betterment assessment is a kind | proper, and does not relieve from the obliga

A local assessment is levied on property situated in a district created for the express purpose of the levy, and possessing no other function or even existence, than to be the thing on which the levy is made. A tax is a continuing burden, and must be collected at stated short intervals for all time, and without it government cannot exist. A local assessment is exceptional, both as to time and locality. It is brought into being for a particular occasion and to accomplish a particular purpose, and dies with the passing of the occasion and the accomplishment of the purpose. Town of Macon v. Patty, 57 Miss. 378, 386, 34 Am. Rep. 451.

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charged therewith, and which are said to be assessed or appraised according to the measure or proportion of such equivalents, whereas a simple tax is imposed for the purpose of supporting the government generally, without reference to any special advantage which may be supposed to accrue to the persons taxed. Therefore Const. art. 12, § 2, providing that "laws shall be passed taxing all real and personal property according to its true value in money," does not apply to assessments for street improvements. Ride nour v. Saffin (Ohio) 1 Handy, 464, 473.

The terms "taxes” and “taxation" have, respectively, the same meaning wherever found in article 11 of the Constitution, which requires that all taxes shall be assessed in exact proportion to the value of such property. The taxes which must be laid on a basis of value in section 1 constitute the taxation referred to for state purposes in section 4, for county purposes in section 5, and for municipal purposes in section 11, and therefore the only municipal taxation which the Constitution requires to be assessed in exact proportion to the value of the property is that embraced in the terms of section 7, so that assessments for paving streets are not taxes within such section, limiting the rate in cities for each year. City of Birmingham v. Klein, 7 South. 386, 387, 89 Ala. 461, 8 L. R. A. 369.

That provision of the Constitution of Missouri which requires all property subject to taxation to be taxed in proportion to its value is applicable only to taxation in its usual, ordinary, and received sense, and taxation for general state, county, city, and town purposes, and not to local assessments. Egyptian Levee Co. v. Hardin, 27 Mo. 495, 497, 72 Am. Dec. 276.

and is not synonymous with "assessment," and hence the statute does not authorize the imposition of such penalty on back specia assessments. Hosmer V. Hunt Drainage Dist., 25 N. E. 747, 748, 134 Ill. 317.

"Taxes," as used in Acts 1861, c. 94, providing that all taxes which may be levied in the city of Baltimore shall be collected within four years from the levying of the same, and the collection of taxes shall not be enforced by law after the lapse of that time, means general taxes imposed on all persons for state and city purposes within the territorial limits, according to the value of their property, in consideration of the protection which the government affords alike to all, and does not include a local assessment, which is a tax levied occasionally, which may be required upon a limited class of persons interested in a local improvement, and who are presumed to be benefited by the improvement over and above the ordinary benefit which the community in gen eral derive from the expenditure of the money. Gould v. City of Baltimore, 59 Md. 378, 379.

The term "taxes" includes special assessments by municipal corporations for public improvements, and therefore such assessments do not bear interest unless so pro

vided by statute. Sargent v. Tuttle, 34 Atl.

1028, 1029, 67 Conn. 162, 32 L. R. A. 822.

An assessment for the benefit of a local

public improvement is in its nature a tax, and as such carries no interest by way of penalty for nonpayment, unless the law expressly so provides. Vicksburg, S. & P. R. Co. v. Traylor, 29 South. 141, 145, 104 La.

284.

Under an act providing that all real estate upon which taxes remain due and unpaid on the 10th day of March annually shall be deemed delinquent, and all such due and unpaid taxes shall bear interest after the 1st day of May, etc., it is held that the word "taxes" was not intended by the Legislature to include special assessments, but related to ordinary taxes levied for state, county, and municipal purposes. Murphy v. Peo

While the authority of a city council to make improvements within the municipality, and to levy assessments therefor upon the property especially benefited, is derived from the general power of taxation, yet such assessments are not "taxes," under that provision of the organic act which provides that "all property subject to taxation shall be taxed in proportion to its value." Such as-ple, 11 N. E. 202, 205, 120 Ill. 234. sessments are no part of those general taxes which are imposed for the purpose of carrying on the ordinary expenses of government, and do not fall within the prohibition of the organic act. Jones v. Holzapfel, 68 Pac. 511, 514, 11 Okl. 405.

Same-Collection, interest, and penalties.

"Tax," as used in Rev. St. 1889, c. 120, $ 129, which provides that, when land has been forfeited for nonpayment of taxes, the back taxes, together with the penalty of 25 per cent. thereof, shall be added to the tax for the current year, is employed strictly,

The provisions of article 1, tit. 6, of the Galveston city charter of 1876, and Act Aug. 19, 1876, § 10, to enforce the collection of delinquent taxes on lands assessed since 1870, refers to ordinary taxation, and not to assessments for local improvements, such assessments are not within the meaning of the word "taxation," as employed by the Constitution and statutes. Allen v. City of Galveston, 51 Tex. 302, 320.

A statute which imposes damages for wrongfully enjoining the collection of taxes does not apply to an assessment made under an order of court to pay a judgment

against a parish, as such an assessment is not a tax. Wilson v. Anderson, 28 La. Ann. 261.

The word "taxes," as used in the General Statutes of Kansas relating to the sale by the county treasurer for delinquent taxes, and providing that all taxes collected by the county treasurers shall be paid over to the city treasurer as fast as collected, etc., is used in its general sense, and includes assessments assessed for local improvements. Smith v. City of Frankfort, 42 Pac. 1003, 1005, 2 Kan. App. 411.

Street assessments are taxes, within Ky. St. § 3412, making it the duty of tax collectors of a city of the third class to collect all taxes. Delker v. City of Owensboro (Ky.) 61 S. W. 362.

TAX-TAXATION

assessments. Longmore v. Tiernan (Pa.) 3 Pittsb. R. 62, 64.

A covenant in a lease that the lessee shall pay the taxes of every name and kind that shall be assessed on the premises during the term does not include an assessment for benefit, imposed by authorities of the city in which the lands lie to provide for the expenses of a local improvement. Beals v. Providence Rubber Co., 11 R. I. 381, 382, 23 Am. Rep. 472.

The power to levy special assessments is derived from the taxing power of the government; but the word "taxes," without more, is not generally understood to include assessments, and hence a tenant agreeing to pay taxes on the leased premises is not required to pay special assessments thereon. Ittner v. Robinson, 52 N. W. 846, 847, 35 Neb. 133.

Comp. St. 1893, c. 12a, § 91, declares that the city treasurer, on or before the The word "assessment," as used in a first Monday of September of each year, lease, obligating the lessee to pay all assessshall make out and deliver to the county ments whatsoever levied, did not bind him treasurer a full and complete list of all lots, to the payment of state, city, and county lands, or real estate, against which at that taxes for general purposes; for, though the time any taxes and assessments for the pre- word "assessment" is often used to signify ceding year remained uncollected, together a proceeding which includes taxes in the with the amount of such taxes or assess- above connection, it was used as a proper ments chargeable against each lot or parcel specific designation of the charges on the of real estate set opposite the same, and it property, in which sense it does not include shall be the duty of the county treasurer to general taxes. The popular understanding advertise and sell the lots and real estate and use of the word makes it refer specificin such delinquent list described for the pur- ally to those charges imposed on real proppose of paying all such taxes or assess- erty by the city to defray the expense of ments. Held, that the word "taxes," as local improvements in proportion to the used in such section, was not to be con- benefits received, and this distinction bestrued as synonymous with "assessments," tween "assessments" and "taxes" is obsince, if it had been intended that the two served in the enactments of the Legislature, words were used synonymously, they would in all of which the word "assessments" is not have been separated by the disjunctive used as meaning an entirely different proconjunction "or," and that the word "as- ceeding or thing from "taxes." Stephani v. sessments," as there used, meant special | Catholic Bishop of Chicago, 2 Ill. App. (2 taxes or local assessments, and that the Bradw.) 249, 252. word "taxes" was used to mean those yearly impositions levied by the corporation for general purposes. State v. Irey, 60 N. W. 601, 606, 42 Neb. 186.

Same-Covenants.

The word "taxes," as used in a lease by which defendant agrees to pay all taxes assessed on the lot and the improvements erected on it during the continuance of the lease, includes special assessments for local improvements. Cassady v. Hammer, 17 N. W. 588, 62 Iowa, 359; Blake v. Baker, 115 Mass. 188; Pettibone v. Smith, 24 Atl. 693, 150 Pa. 118, 17 L. R. A. 423.

The word "taxes," as used in a covenant of a tenant whereby he covenants "to pay all the taxes that may be assessed and levied within his term," must be presumed to be used in its common and ordinary acceptation and meaning, and therefore the tenant is not liable for grading and paving

A special assessment for paving is not a "tax," or public due of any kind, within the meaning of a lease requiring a certain annual rent, besides "all taxes and public dues of any kind"; the court stating that the phrase in question extended only to ordinary and usual taxes and public dues, and could not be regarded as including an expense which, like the one in question, was unknown to the parties, incalculable as to amount, uncertain as to time, and in which the lessee could have no certain interest.

Bolling v. Stokes (Va.) 2 Leigh, 178, 181, 21

Am. Dec. 606.

The exception of the taxes for 1893 from the covenant in a deed against incumbrances did not include an assessment for the construction of a sewer. Smith v. Abington Sav. Bank, 42 N. E. 1133, 165 Mass. 285.

Special assessments for improving the streets of the city are not taxes, and hence