cided by the Supreme Court of Georgia, involved among other questions one pertaining to insurance upon which the authorities are diverse. It appeared that the policy sued on then insured both the stock of goods and the building in which it was contained. The premium due was a gross sum. The question arose whether the breach of warranty relating solely to the goods, and which precluded a recovery for this loss, would also bar a recovery for the loss of the building. The court held that the policy was entire and indivisible though the contract insures different classes of property in separate amounts, and where such a policy insured both a building and a stock of merchandise therein contained, and provided that, in the event the insured failed to take an inventory of the goods at a time specified, "this policy shall be null and void from such date," a breach of this stipulation avoided the insurance on the building as well as on the stock of goods. The court said in part:

The parties contracted that 'the policy' should be void in case of failure to comply with the ironsafe clause. The policy embraces insurance upon both the building and its contents, and the premium is payable in a gross sum. 'If the consideration to be paid is single and entire, the contract must be held to be entire, although the subject of the contract may consist of several distinct and wholly independent items. 2 Pars. Cont. *519. It was competent for the parties to make two separate and distinct contracts, one covering the goods, and the other the building, but they did not see proper to do this. They combined the two, and made the consideration moving towards the insurer a gross sum. They further provided that the contract, not a part of it, should be void under certain conditions. It may perhaps seem to be unreasonable that, simply for a failure to take an inventory of the stock of goods, the plaintiffs should be precluded from recovering the value of the building. But this does not affect the question. The question is, what have they agreed upon? If there was any room to doubt as to the intention of the parties, that construction which is most reasonable and most consonant with justice would be applied. But there is none. The parties have deliberately chosen to enter into an agreement whereby the policy shall be forfeited if the insured fails to do certain things, and he has failed to comply with his agreement. In such a case there is but one thing for the courts to do, and that is to enforce the agreement as made. The question as to whether a policy of insurance, such as is involved in the present case, constitutes a separable or an entire contract, is no new question. It has been the subject of numerous decisions by the courts in this country, and they are in hopeless and irreconcilable conflict. The weight of authority is to the effect that the contract is entire, and that the breach of a warranty which relates solely to one class of property will avoid the entire policy, if the contract so provides. Text

writers of great learning and ability have, after reviewing the decisions on both sides of this question, reached the conclusion that the contract is indivisible. We quote the following from 1 Wood, Fire Ins. p. 384: It is difficult to understand how it can be held that these contracts are several, when a gross premium is paid for the entire insurance. The court cannot say, as a matter of law, neither can the fact be shown, that the insurer would have been satisfied to take the risk separately at the same premium. By consenting to pay a gross premium for the insurance, the assured has signified his willingness to let the policy stand as an entire contract, subject in all its parts to the conditions imposed by the insurer; and there is neither reason nor equity in permitting the assured, after he has violated one of the conditions of the policy as to a part of the risk, to turn around and say that this condition only affected that portion of the risk to which the breach related. Mr. Ostrander, after an elaborate review of the decisions, reaches the conclusion that those which hold the contract to be entire announce the sounder and better rule. Ostr. Fire Ins. § 23 et seq. See also 2 Joyce, Ins. § 1931; 1 May, Ins. § 277. In support of the views herein announced, we find the courts of last resort of Maine, Wisconsin, Maryland, Minnesota, Virginia, New Hampshire, Massachusetts; Vermont, Pennsylvania, New Jersey, Michigan, Indiana, Arkansas, Iowa, Alabama and Connecticut. It would not be profitable here to do more than cite the decisions of the courts. Reduced to their last analyses, they simply hold that the premium being for a gross sum evidences an intention on the part of the parties that the contract should be treated as entire, and that the intention of the parties, when ascertained, must be enforced. See Richardson v. Insurance Co., 46 Me. 394; Barnes v. Insurance Co., 51 Me. 110; Hineman v. Insurance Co., 36 Wis. 159 (Syl. point 7); Burr v. Insurance Co., 84 Wis. 76, 54 N. W. Rep. 22, 36 Am. St. Rep. 905; Insurance Co. v. Assum., 15 Md. 165; Bowman v. Insurance Co., 40 Md. 620; Plath v. Insurance Co., 23 Minn. 479; Moore v. Insurance Co., 28 Gratt. 508; Baldwin v. Insurance Co., 60 N. H. 422; Friesmuth v. Insurance Co., 10 Cush. 587; Lee v. Insurance Co., 3 Gray, 583; Kimball v. Insurance Co., 8 Gray, 33; McGowan v. Insurance Co., 54 Vt. 211; Gottsman v. Insurance Co., 56 Pa. St. 210; Trustees of Fire Assn. v. Williamson, 26 Pa. St. 196; Martin v. Insurance Co. (N. J. Sup. ), 31 Atl. Rep. 213; Insurance Co. v. Resh, 44 Mich. 55; McQueeney v. Insurance Co. (Ark.), 12 S. W. Rep. 498; Garver v. Insurance Co. (Iowa), 28 N. W. Rep. 555; Assurance Co. v. Stoddard (Ala.), 7 South. Rep. 379 (Syl. point 5); Essex Sav. Bank v. Meridan Fire Ins. Co. (Conn.), 17 Atl. Rep. 930. It is true that none of the cases above cited dealt with a breach of the iron-safe clause, but in many of them the condition in the policy which was violated had no more connection with the property for which a recovery was sought than does the iron-safe clause to the

building insured by the policy herein involved. In principle the cases are exactly in point. Opposed to this view are decisions of the court of last resort of Nebraska, Colorado, Kansas, and Missouri. See Insurance Co. v. Schreck (Neb.), 43 N. W. Rep. 340. 6 L. R. A. 524; Insurance Co. v. Fairbank (Neb.), 49 N. W. Rep. 711; Insurance Co. v. Barker (Colo. App.), 41 Pac. Rep. 513; Insurance Co. v. York (Kan. Sup.), 29 Pac. Rep. 586; Insurance Co. v. Saindon (Kan. Sup.), 36 Pac. Rep. 983; Loehner v. Insurance Co., 17 Mo. 247; Trabue v. Insurance Co. (Mo. Sup.), 25 S. W. Rep. 848. 23 L. R. A. 719. The courts of New York and Indiana seem to have been at different times on both sides of the question now under consideration. Smith v. Insurance Co., 25 Barb. 497; Kiernan v. Insurance Co. (Sup.), 30 N. Y. Supp. 892; Merrill v. Insurance Co.. 73 N. Y. 452; Pratt v. Insurance Co. (N. Y.), 21 Ins. Law J. 146; Havens v. Insurance Co. (Ind. Sup.). 12 N. E. Rep. 137; Insurance Co. v. Pickel (Ind. Sup.), 21 N. E. Rep. 546. Our conclusion is that where an insurance policy is issued in consideration of a gross premium, and provides that the policy shall be void in the event of a breach of a certain condition therein named, and this condition is broken, no recovery can be had on the policy, though separate classes of property are therein insured, and though the stipulation violated relates solely to a matter which could have connection with but one of these classes."

provement to the lands assessed, and is therefore void as a benefit assessment.2 In the present article we propose a further and more direct reference to the State court decisions, heretofore referred to, upholding the front foot and area rules of special assessments, which assert, as their conclusion, that it is a State legislative prerogative to determine the existence and extent of exceptional benefit the lands of a district or part of a city receive, or will receive, from a public improvement, and whether these benefits equal the cost of the improvement and the amounts assessed against the several parcels of land in the particular district. The premise of these decisions is that the prerogative is legislative because there can be no taxation without

legislative enactment. It might as well be said that the legislature can exercise judicial and executive functions because it can create a court and provide for the appointment and election of its judicial and executive officers, and confer jurisdiction and authority upon them. It certainly needs no authority to prove that this is not true. The judges, asserting the validity of statutes creating and conferring power to specially assess of lands, according to their frontage or area, in a particular district to pay the entire cost of a public improvement, because of an asserted

III.

The correctness of a legal proposition should certainly not be decided by the mere number of unconsidered asseverations that may be found repeated in printed court opinions, but it should be decided according to sound legal principles and real reasons. A sound proposition is naturally reinforced by true and consistent reasons from every direction, while a false proposition is refuted by the contradictions offered in its support.

Sec. 1. In the preceding article we have cited authorities showing that a legislative assessment of the entire cost of a public improvement against adjacent lands by the front foot, or area thereof, is not the legal equivalent of exceptional benefit of the im

1 See previous articles, 51 Cent. L. J. pp. 243, 423.

and disparaging admissions to that view. Some of these will now be noticed.

(a) They have said that in extreme cases, where the assessment will result in the confiscation of property, the courts could and would withhold the enforcement of the front foot or area methods of assessment."

(b) Other courts, enforcing the front foot rule of special assessments, have said that this method of taxation was constitutional only in densely populated districts, and that whether the district was one in which a special tax should be imposed to the extent of the cost of a public improvement was a question of fact in each case. In Cleveland v. Tripp the Rhode Island court, after as

2 See authorities in note 37, 51 Cent. L. J. 427. 3 Webster v. City of Fargo (N. Dak.), 82 N. W. Rep. 734; Hadley v. Dague (Cal.), 62 Pac. Rep. 501. Dissenting opinion in Norwood v. Baker, 172 U. S. 298.

4 Seely v. Pittsburg, 82 Pa. St. 360; Kaiser v. Wise, 85 Pa. St. 366; McKeesport v. Soles, 165 Pa. 628; Sperry v. Flygare (Minn.), 83 N. W. Rep. 177.

provement, may be charged." Strangely inconsistent, the same court has repeatedly, and without dissent on this proposition, for more than forty years, enforced statutes of the State conferring the same prerogative upon the State circuit courts of St. Louis and Kansas City, to-wit.: the determination of the existence, ratio and extent of special benefit of a proposed city street, boulevard or park improvement to adjacent lands in a prescribed benefit district, and to render a judgment for the amount thus determined against the adjacent lands to pay for the proposed improvement. 12

These Missouri legislative acts authorized the city council of these cities to prescribe by ordinance a benefit district within which lands should be deemed benefited by the proposed improvement; that after this, the State circuit court should, on application of the city, cause notice to be given and appoint a jury or board of commissioners who should view the lands in the prescribed benefit district, hear the testimony of the witnesses of the parties interested offered in court, and under the instructions of the court render their verdict charging the lands respectively in the prescribed district with the amount of benefit of the proposed improvement thereto, upon which verdict, if approved by the court, a judgment was by the statute to be entered and it is decided, that the jury in determin. ing the existence, ratio and extent of benefit aforesaid, was not bound to assess all lands in the prescribed district, but could exercise their own judgment and assess or not assess any piece or parcel of land in the district as they might believe it specially benefited or not, by the proposed improvement. 13 Both Both lines of the Missouri decisions cannot be correct.

There is not a State prerogative that may be concurrently exercised as legislative or judicial. Each prerogative properly belongs to the one or the other, and in no instance to both of these departments.

On

1 51 Cent. L. J. pp. 426, 427, notes 31 and 32. 12 (1857) St. Louis v. Garrett, 25 Mo. 505; (1888) St. Louis v. Ranken, 96 Mo. 497; (1889) Kansas City v. Baird, 98 Mo. 216; (1895) Kansas City v. Smart, 128 Mo. 272; (1896) Kansas City v. Ward, 134 Mo. 173; (1898) Kansas City v. Bacon, 147 Mo. 260. See also Bauman v. Ross, 167 U. S. 548; Bryant v. Robbins, 70 Wis. 270.

13 Kansas City v. Baird, 98 Mo. 216; Kansas City v. Smart, 128 Mo. 294.

this subject the Missouri court has said: "If there is anything settled in our system of government, it is the complete separation of their functions."'14

(d) When a State legislature delegates power to a city to build sewers, grade and pave streets, etc., at the cost of adjacent lands in a particular district created by the city authorities, and the act specifies that lands are to be assessed according to the exceptional benefit received from the particular improvement, unless the legislative act or a municipal ordinance shall provide for notice and a hearing to the owners of the lands in the particular district on the question of the existence and extent of the benefit to their lands, a municipal assessment thereunder deprives these owners of their lands without due process of law and is invalid. This proposition is declared and enforced universally because the measure and standard of exceptional benefit as the statutory limit of the right to make the assessment renders an inquiry and consideration of the facts in each case necessary to a proper determination of the amount to be assessed against each parcel of land in the particular district, as its portion of benefit of the improvement, not shared by other lands outside of the particular district.15 These authorities negatively prove at least this much; that when exceptional benefit of a public improvement to the lands assessed is the standard or principle of their assessment, that the determination of the existence, ratio and extent of benefit to each parcel so assessed is a non-legislative prerogative. For if alegislative prerogative it could be exercised without notice or hearing to the owners of the lands assesed or conferred upon the city legislative body to be exercised in like manner without notice or hearing. The standard of assessment imposed by the legislative act held to require notice and a hearing, to-wit, exceptional

14 State v. Adams, 44 Mo. 588.

15 Bellingham Bay & Co. v. New Whatcom, 172 U. S. 318; Stuart v. Palmer, 74 N. Y. 183, 189, 190; R. R. Tax Cases, 13 Fed. Rep. 723; Cooley on Taxation (2d Ed.) 655; Norfolk v. Young, 97 Va. 728; Brown v. City of Denver, 7 Colo. 305; Ulman v. Mayor, etc., 72 Md. 587; Whiteford Township v. Probate Judge, 53 Mich. 130; Philadelphia v. Scott, 81 Pa. St. 80; Deitz v. City, 91 Wis. 422; Trustees of Griswold College v. City, 65 Iowa, 633; Hutchinson v. Storrie, 92 Tex. 686; Sears v. Street Comrs., 173 Mass. 350.

benefit to the lands assessed, is precisely the same standard as that forced upon the States by the fourteenth amendment to justify such special assessment. 16

Sec. 2. An arbitrary State legislative tax of the entire cost of a public improvement on adjacent lands without regard to the benefit thereto (in excess of general benefit to other lands not taxed at all) being equal to the cost of the improvement deprives the owners of the lands assessed of their property for public use without just compensation, denies them an equal protection of the law and violates the fourteenth amendment.17 "The great purpose of the requirement (due process of law) is to exclude everything that is arbitrary and capricious in legislation affecting the rights of the citizen."18 The taxing power originally, and until modified by constitutional provision, was wholly a legislative prerogative. The legislature was not restricted as to its method, subjects or extent of taxation. It is not so now. State taxing power is now incumbered with constitutional conditions in its exercise, that require the the exercise of functions that are essentially of a non-legislative character. Property is now required to be taxed for general purposes according to its value; lands of a particular district may be also taxed with the cost of a public improvement to the extent they receive an exceptional benefit from such improvement not received by other lands not assessed. These are the standards or principles to which all State taxation is now lim. ited.

(See preceding article, 51 Cent. L. J. 423.) It cannot be a proper function of a State legislature to determine and declare, how much a particular horse or piece of land is worth, or, by general rule, how much all horses and lands respectively are worth, or how much each parcel of land in a described district of a city or town is benefited by a

16 See authorities cited in 51 Cent. L. J. pp. 424, 425, secs. 3 and 4.

17 See authorities cited in 51 Cent. L. J. pp. 425 (note 24) 426 (notes 25 to 28 inclusive).

18 Dent v. West Virginia, 129 U. S. 124, p. 425, (note 24.) 426, (notes 25 to 28 inclusive). See also Caldwell v. Texas, 137 U. S. 692; Ragan v. Farmers' L. & Tr. Co., 154 U. S. 399; Hovey v. Elliott, 107 U. S. 417: American Sugar Refining Co. v. Louisiana (Sup. Ct. U. S., decided Oct. 19, 1900), 21 Sup. Ct. Rep. 43; Ulman v. Baltimore, 572 Md 92; St. Louis v. Heitzeberg Packing Co., 141 Mo. 376; Wilkinson v. Le. land, 2 Pet. 627.

particular public improvement in excess of the benefit to other lands in such city or town not assessd assessd for the improvement, and whether the exceptional benfits, to the lands in any particular district that may be created, will equal the cost of a proposed improvement or the amount specially assessed. The determination of these things would seem to be beyond question, the exercise of functions not properly be. longing to the legislative department. 19 In Newby v. Platte Co., the Supreme Court of Missouri, stating as a part of the history of the exercise and the modification of legislative power in that State in the matter of taxation said: "Our State revenue is assessed against persons in respect to such of their property as the legislature selects for taxation and in proportion to the value of it; while formerly, under the territorial government, it was levied arbitrarily on property at specific sums, fixed by the legislature (Geyer's Dig. Revenue, secs. 1, 2, 4, 9); certainly one effect of the constitutional provision under consideration is to forbid the ancient mode of assessment and to require the legislature, in the imposition of taxes on persons in respect to their property, to assess them according to the value of the property selected as the objects of taxation, and not at arbitrary fixed rates, prescribed by the legislature."20 Judge Cooley in speaking of assessments generally and assessing officers says: "That the duty of these officers calls into action the judicial function is unquestionable." Again he says upon the subject of taxing property according to its value: "It cannot be assessed without in

quisitorial process of some kind. ''22 In Hagar v. Reclamation District, the Supreme Court of the United States said: "Of the different kinds of taxes which the State may impose, there is a vast number of which, from their nature, no notice can be given to the taxpayer, nor would the notice be of any possible advantage to him, such as poll taxes,

19 Cooley on Taxation (2d Ed.), 35, 788; In re House Bill, 9 Colo. 625; Hagar v. Reclamation District, 111 U. S. 710; Norfolk v. Ellis, 26 Gratt. (Va.) 242; Norfolk v. Young, 97 Va. 728; Dillon, Munic. Corp. (4th Ed.) sec. 802a.

20 25 Mo. 271 2.

21 Cooley on Taxation (2d Ed.), 788.

22 Id. 35. See also In re House. Bill, 9 Colo. 625.