in front of his property at his own expense, any more than the street itself, either by the exercise of the police power or by fines and penalties imposed by ordinance, or by direct legislative action. Our conclusion is, the ordinance in question is invalid, and the judg-' ment must be reversed and the cause remanded. Judgment reversed.1 1 The doctrine of this case was affirmed in Chicago v. O'Brien, 111 Ill. 532 (1884). The court (SCHOLFIELD, C. J.) said: "It is conceded by counsel for appellant that this court, in Gridley v. City of Bloomington, 88 Ill. 554, decided the only question involved in this case (namely, the validity of the ordinance under which the suit is prosecuted) against appellant; but they contend that decision is based upon incorrect grounds, and should therefore be overruled. They contend that the ordinance is but a proper police regulation, and that, as such, it should be sustained. In support of this position they cite Bonsall et ux. v. Mayor, etc., 19 Ohio, 418; Paxton v. Sweet, 13 N. J. (1 Green) 196; Mayor, etc. v. Maberry, 6 Humph. 368; Washington v. Mayor, etc., 1 Swan (Tenn.), 177; Woodbridge v. City of Detroit, 8 Mich. 274; and other cases. "In City of Chicago v. Larned, 34 Ill. 203, -a case very elaborately argued by able counsel, the principle involved in the decisions of these cases was carefully considered, and it was held they could not apply here, that they were decided under constitutions so materially different from ours, that the same line of reasoning is not applicable to both. And in City of Ottawa v. Spencer, 40 Ill. 211, which was a proceeding to charge the adjacent lot-owner with the cost of building a sidewalk, the same question was again before the court, and it was then insisted, as it is now, that the charges may be sustained as within the police power, but the position was held untenable. In passing upon this point, it was there said: 'It is also urged that this may be referred to the police power of the State, which has been delegated to the city, and may therefore be properly exercised; and in support of the proposition we are referred to the decisions of the Supreme Court of Tennessee: Mayor, etc. v. Maberry, 6 Humph. 368; Washing ton v. The Mayor and Aldermen of Nashville, 1 Swan, 177; White v. The Mayor and Aldermen of Nashville, 2 Id. 364. These cases go to the length of sustaining the doctrine contended for by plaintiffs in error. They announce the doctrine that such improvements may be compelled under the general police power. If this be so, by an exercise of the same power we presume that the owner could be compelled to construct and keep in repair public roads, bridges, and culverts fronting upon or running through his lands, or the owner of a city or village lot could be compelled to make and repair the street in front of his property. A sidewalk is a portion of a public highway, appropriated, it is true, to pedestrians alone, but still open and free to all persons desiring to use and enjoy it as a public highway. It is as much a public highway in the mode of its use as the street itself. The difference in the manner of their use does not render one public more than the other. They are both free to be properly used and enjoyed by the entire public, and are constructed alike for their use. the legislature may afford the necessary power of constructing such improvements so essentially necessary to the comfort and convenience of the community is apparent; but under our Constitution we think the mode authorized in this case is not sanctioned, and that the principles announced in the case of Larned v. The City of Chicago fully govern and control this case.' That "Even the police power, comprehensive as it is. has some limitations. It cannot be held to sanction the taking of private property for public use without making just compensation therefor, however essential this might be, for the time, to the public health, safety, etc. And upon like principle, a purely public burden cannot be laid upon a private individual, except as authorized in cases to exercise the right of eminent domain, or by virtue of proper proceedings to enforce special assessments or special taxation. The drainage of malarial swamps would surely largely contribute to promote the public health; but could it be contended that therefore the burden of such IN Carthage v. Frederick, 122 N. Y. 268, 277 (1890), in sustaining the constitutionality of a local ordinance of the same sort as that in the case of Goddard, Petitioner, the Court of Appeals (Second Division), VANN, J., said: If this power of local legislation can be conferred upon the largest city in the State, it can also be confe: red upon the smallest village that the legislature sees fit to incorporate. In this latitude the accumulation of snow upon sidewalks in large quantities is a matter of course. Its presence retards travel, interrupts business, and interferes with the safety and convenience of all classes. It is a frequent cause of accidents and thus affects the property of every person who is liable to assessment to pay the damages caused by a failure to remove it. But, how is it possible for the authorities of a large city, with many hundred miles of streets, to remove the snow in time to prevent injury to those who have the right to travel upon the sidewalks unless they can require the owners and occupants of adjacent property to remove it? Every man can conveniently and promptly attend to that which is in front of his own door, and it is both reasonable and necessary that he should be compelled to do so. We think that the ordinance under consideration is valid; that it conflicts with no provision of the Constitution, and that it is the duty of the courts to enforce it. "In reaching this conclusion, we have not overlooked the case of Gridley v. City of Bloomington, 83 Ill. 554, but have given it the drainage may be laid upon some single person to be arbitrarily selected, or upon those who happen to own the adjacent dry land, in disregard of the principles applicable to special assessments and special taxation? Undoubtedly, the allowing of ice or snow to remain upon a sidewalk may be declared a nuisance, but it must be a public nuisance, and one, too, not caused by the act of the adjacent property holder, but solely by the action of the elements. No one questions the right of the municipality to prevent such use of property and such action of the citizen as may be injurious to the public; but the adjacent lot owner has no ownership or control of the adjacent street, and this ordinance seeks to control the action of no one while on the street. The lotowner is held responsible solely and simply for the accident of owning property near the nuisance. He may have no more actual control of the street, or necessity to use it, than if his property were miles away; still, he is held responsible for a result he could not control, and to the production of which he did not even theoretically contribute. The gist of the whole argument is merely that it is convenient to hold him responsible. It is not perceived why it would not be equally convenient to hold him responsible for the entire police government of so much of the street Counsel seem to wish to draw a distinction between the present case and the cases of City of Chicago v. Larned, and City of Ottawa v. Spencer, supra, upon the ground that it is here neither sought to construct nor repair a si lewalk, but simply to keep it in a passable condition. But the difference is in the extent and not in the character of the burden sought to be imposed. The principle is precisely the same in each case. The object is to fit the streets, or so much as is occupied by sidewalks, for travel; and if the power to compel the private person to accomplish this result exists at all, it must extend to the necessary means in each case. It is impossible to point out why the removal of a snow-bank should rest on a different principle from that applicable to filling a hole, or nailing down a board. "We are satisfied with the entire correctness of the ruling in Gridley v. City of Bloomington, supra, and being so satisfied, the judgment below must be affirmed.” Judgment affirmed. DICKEY, SHELDON, and CRAIG, JJ., dissenting. Ed. attention to which it is entitled by the high standing of the court that decided it. The argument upon which the opinion in that case rests is that, as the fee of the street was in the corporation, and the sidewalk was a part of the street, the lot-owner had no more interest in the sidewalk in front of his premises than any other citizen of the municipality, because it was set apart for the exclusive use of persons travelling on foot and was as much under the control of the municipal government as the street itself. "We are unable to yield to this reasoning, because it overlooks not only the public safety and general convenience, but also the peculiar interest that every owner or occupant of real property has in a clean sidewalk in front of his own premises. Whatever adds to the usefulness of a sidewalk adds both to the rental and permanent value of the adjacent lot. "After carefully examining all of the questions presented by counsel, we think the judgment should be affirmed." All concur except FOLLETT, Ch. J., not sitting. Judgment affirmed. REINKEN v. FUEHRING. SUPREME COURT OF INDIANA. 1891. [130 Ind. 382.] APPEAL from Circuit Court, Marion County; E. A. BROWN, Judge. Action by Fred. Fuehring and others against Henry Reinken, Sr., to foreclose a lien on defendant's real estate. Defendant appeals from a judgment overruling his demurrer to the complaint. Affirmed. Denny & Elliott, for appellant. Augustus L. Mason, for appellees. COFFEY, J. The appellees brought this suit in the Marion County Circuit Court to foreclose a lien for the amount assessed against the appellant's real estate for sweeping the street in front of his property in the city of Indianapolis, under a contract made between the city and the appellees pursuant to the provisions of the city charter. A demurrer to the complaint was overruled, and the appellees had judgment, from which this appeal is prosecuted. The charter of the city of Indianapolis is found in Acts Gen. Assem. 1891, p. 137. It provides for the mode of improving the streets, and the payment for such improvements; and confers on the city, through its proper officers, the power to make contracts for sprinkling and sweeping such streets in the city as it may deem proper, and to assess against the property holders abutting on such streets the cost of such sprinkling and sweeping. The only ques- / tion before us for decision relates to the constitutionality of so much of the Act as authorizes the city to contract for sprinkling and sweeping the streets at the cost of the property holders along the line of such streets, it being contended by the appellant that these provisions are unconstitutional for the reasons: First. That it violates the provision of our State Constitution requiring an equal and uniform rate of taxation. Second. Because, even if the city has power to compel abutting property owners to pay for sweeping the streets in front of their property, it has no power to compel them to do so, and at the same time compel them to pay into the general fund a part of the costs of cleaning other streets, as provided for in the Act. Third. Because the proceeding which the Act attempts to authorize amounts to a taking of private property without due compensation and due process of law. 66 To support his contention as to the first proposition presented, the appellant relies to some extent upon the case of Gridley v. City of Bloomington, 88 Ill. 554, and the case of City of Chicago v. O'Brien, 111 Ill. 532. These cases hold that an ordinance making it the duty of the owner or person occupying premises abutting upon a street to keep the sidewalks free from snow and ice, and providing for the enforcement of such ordinance by the infliction of penalties, is void. The cases seem to rest principally upon the peculiarity of the laws of the State of Illinois, under which the lot-owner does not own the fee in the street. The last case, however, was decided by a divided court, three of the judges refusing to concur in the conclusion reached. The authorities make a clear distinction between the word taxation" and the word assessment." "Taxes' are impositions for purposes of general revenue. •Assessments' are special 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 laid with reference to the special benefit which such property derives from the expenditure." Palmer v. Stumph, 29 Ind. 329. This distinction is recognized in nearly all the States of the Union. For a collection of the authorities upon this subject see the case above cited. The assessment, therefore, made against the' owners of property along the streets required to be swept under the Act in question, to pay the expense of such sweeping, is not a tax, but a local assessment. The question is then presented as to whether a local assessment for this purpose can be sustained under our Constitution. If it can be sus- ' tained at all, it must be upon the grounds that it is the proper exercise of the police power of the State, and a special benefit to the abutting property owner. The power of a municipal corporation to order sidewalks of a particular kind, and to assess against the abutting property. owner an amount necessary to pay for the same, and to pay for keeping the same in repair and proper condition for the use of the public, is generally upheld upon the ground that it is proper exercise of the police power of the State. Goddard, Petitioner, 16 Pick. 504; Palmer v. Way, 6 Colo. 106; Cooley, Tax'n, pp. 396, 397; State v. Mayor, 37 N. J. Law, 423; Kirby v. Boylston, 14 Gray, 252; Pedrick v. Bailey, 12 Gray, 163; Moore v. Gadsden, 93 N. Y. 12; Hartford v. Talcott, 48 Conn. 525. Judge Cooley says: "The cases for assessments for the VOL. I. - 53 construction of walks by the side of streets in cities and other populous places are more distinctly referable to the police power. These footwalks are not only required, as a rule, to be put and kept in proper condition for use by the adjacent proprietors, but it is quite customary to confer by the municipal charters full authority upon the municipalities to order walks of a kind and quality by them prescribed to be constructed by the owners of adjacent lots, at their own expense, within a time limited by the order for the purpose; and that, in case of their failure so to construct them, it shall be done by the public authorities, and the cost collected from such owners, or made a lien upon their property. When this is done, the duty must be looked upon as a regulation of police, made because of the peculiar interest such owners have in the walks, and because their situation gives them peculiar fitness and ability for the performing with promptness and convenience the duty of putting them in a proper state, and afterwards keeping them in a condition suitable for use." Cooley, Tax'n, supra. Assuming, as held by these authorities, that the power to make local assessments to pay for local improvements or benefits is to be referred to the police power of the State, we are naturally led to inquire whether the assessments provided for in the charter now under consideration amounts to a taking of private property without compensation, and without due process of law, as contended by the appellant. Mr. Sedgwick, in his valuable work on Statutory and Constitutional Law, 435, says: "The clause prohibiting the taking of private property without compensation is not intended as a limitation of the exercise of those police powers which are necessary to the tranquillity of every well-ordered community, nor of that general power over private property which is necessary for the orderly existence of all governments. It has always been held that the legislature may make police regulations, although they may interfere with the full enjoyment of private property, and though no compensation is given." . . . [Here follows a citation from 1 Dillon, Munic. Corp. 212, and a statement of the cases of Goddard, Petitioner, and Carthage v. Frederick.] The principles which rule the cases above cited cannot, in our opinion, be distinguished from the principles which rule the case at bar. Of course, it is not claimed that in the exercise of the police power such assessments could be made and collected from the abutting property owner unless he had a special interest and derived a special benefit therefrom, not enjoyed by the public in general; but if he has a special interest in the improvement of the street and sidewalk, and in keeping them free from snow and ice, so he has a special interest in keeping them free from accumulating filth. It is matter of common observation, of which we must take notice, that property located upon well-improved streets. kept clean, is more desirable than property on unimproved streets where mud and filth are permitted to accumulate and obstruct their use. It is safe to assert, we think, that keeping a street clean adds to the rental, if not to the permanent value, of property located |