In re of Opening & Grading of Mkt. St.

By the Court, Wallace, C. J. : We will consider the case without reference to the question of practice made by the respondents.

1. Out of the moneys to be raised by means of the assessment in question, the claim of Connolly is first to be paid. The remainder in the hands of the City Treasurer is to be applied to the compensation of those whose lands have been taken for the roadway of the proposed extension of Market street.

If the payment of Connolly’s claim be a purpose which is [549]seen to be private, and not public in its character, the assessment now in question must fail. ' The taxing power, whether it be executed in the form of general taxation or of local assessment, cannot be upheld, when the purpose in view can be judicially seen to be other than public. Again, the basis upon which an assessment, such as that now in controversy, is supported, is that of benefit derived to the property assessed, by reason of the making of an improvement at once local and public in its character, the amount assessed being, as observed by Mr. Justice Bronson, “an equivalent or compensation for the enhanced value which the property of the person assessed has received for the improvement.” (4 Hill R. 82.) ’Tis only because of the specific benefit received that specific property is taxed for a specific purpose. The assessment upon property is therefore “ laid with reference to the benefit which such property is supposed to receive from the expenditure of the money.” (Taylor v. Palmer, 31 Cal. 254.)

2. It is apparent that the payment of the Connolly claim is not a public purpose in the sense which will support the assessment here. The circumstances in which the claim originated do not very distinctly appear. It would seem, however, that the claim is for compensation for certain work done by Connolly in the year 1868, under an abortive contract, for the opening of this extension, theretofore made between himself and the anthorities of the city and county of San Francisco. It may be that the circumstances, when ascertained, would characterize his claim as one affecting the public conscience, and entitling the holder to payment from the appropriate fund, as was done in Blanding v. Burr, 13 Cal. 343; Creighton v. Board of Supervisors, 42 Cal. 446, and Sinton v. Ashbury, 41 Cal. 525. But, however this may be, Connolly, in the nature of things, could have had no special claim upon the conscience of those who now happen to own lots about to be benefited by the proposed extension. His claim, if a claim of a public character, constituted a public burden, common to the State at .large, or perhaps to the municipality, in which and under a supposed contract with whose