benefit conferred by the improvement upon that property, the practice and procedure of special assessments throughout the country would in many cases have to be revised.

14

In a series of cases, decided in 1901, however, the court brought back the law very nearly, if not quite, to its former condition. The chief opinion is rendered in French v. Barber Asphalt Paving Co.1 In this case it was held that the apportionment of the entire cost of a street pavement upon the abutting lots according to their frontage, without any judicial inquiry as to their value or the benefits they received, might be authorized by the legislature. In its opinion the court review at length the scope and effect given in previous cases to the phrase "due process of law" in its application to the taxing power, and, coming to the case of Norwood v. Baker say, in effect, that that case was a peculiar one, relating to a single piece of property, and that the decree of the court was not based upon a general principle of law that an assessment cannot be levied without provision for a preliminary hearing as to the benefits, but simply, that the particular assessment then before the court was not a proper one. "Its legal effect, as we now adjudge, was only to prevent the enforcement of the particular assessment in question." 15

property the full cost of an improvement is prima facie void; that, being prima facie void, the owner of any property so abutting on the improvement may obtain a decree of a court of equity canceling in toto the assessment, without denying that his property is benefited by the improvement, or paying, or offering to pay, or expressing a willingness to pay, any sum which may be a legitimate charge upon the property for the value of the benefit to it by such improvement.

"In this case no tender was made of any sum, no offer to pay the amount properly chargeable for benefits, there was no allegation or testimony that the legislative judgment as to the area benefited, or the amount of the benefit, was incorrect, or that other property was also benefited; and the opinion goes to the extent of holding that the legislative determination is not only not conclusive, but also is not even prima facie sufficient, and that in all cases there must be a judicial inquiry as to the area in fact benefited. We have often held the contrary, and, I think, should adhere to those oft-repeated rulings."

14 181 U. S. 324; 21 Sup. Ct. Rep. 625; 45 L. ed. 879.

15 In a dissenting opinion, rendered by Justice Harlan, and concurred in by Justices White and McKenna, it is argued, and with force, that the doctrine declared in the case at bar does in fact modify that declared in Norwood v. Baker. The argument is, however, too long to be quoted.

16

In Tonawanda v. Lyon16 practically the same facts as those in French v. Barber Asphalt Paving Co. were involved. In the majority opinion, with reference to the Norwood v. Baker case, it is said: "It was not the intention of the court, in that case, to hold that the general and special taxing systems of the States, however long existing and sustained as valid by their courts, have been subverted by the Fourteenth Amendment. . . . The case

of Norwood v. Baker presented, as the judge in the court in the present case well said, 'considerations of peculiar and extraordinary hardships' amounting in the opinion of a majority of the judges of this court, to actual confiscation of private property to public use, and bringing the case fairly within the reach of the Fourteenth Amendment."

In Wight v. Davidson,17 decided at the same time as Tonawanda v. Lyon and French v. Barber Asphalt Paving Co., the objection was raised to an act of Congress relating to the District of Columbia, that it arbitrarily fixed the amount of benefits to be assessed upon the property, irrespective of the amount of benefits actually received or conferred upon the land assessed by the opening of a street. The lower court, in its opinion, had said with reference to Norwood v. Baker, "As we understand that decision, which undoubtedly has the effect of greatly qualifying the previous expressions of the same high tribunal upon the matter of special assessments, the limit of assessment on the private owner of property is the value of special benefit which was accrued to him for the public improvement adjacent to his property." As to this construction thus placed upon its position the Supreme Court say: "We think the court of appeals in regarding the decision in Norwood v. Baker as overruling our previous decisions misconceived the meaning and effect of that decision. There the question was as to the validity of a village ordinance which imposed the entire cost and expenses of opening a street, irrespective of the question whether the property was benefited by the opening of the street. The legislature of the State had not defined or desig

16 181 U. S. 389; 21 Sup. Ct. Rep. 609; 45 L. ed. 908. 17 181 U. S. 371; 21 Sup. Ct. Rep. 616; 45 L. ed. 900.

nated the abutting property as benefited by the improvement, nor had the village authorities made any inquiry into the question of. benefits. There having been no legislative determination as to what lands were benefited, no inquiry instituted by the village councils, and no opportunity afforded to abutting owners to be heard on the subject, this court held the exaction from the owner of private property of the cost of a public improvement in substantial excess of the special benefits accruing to him, is, to the extent of such excess,18 a taking under guise of taxation of private property for public use, without compensation." 19

18 Italics are by the court.

19 In an earlier chapter it has been shown that the requirement of the Fifth Amendment that no person shall be deprived of property without due process of law lays the same obligation upon the Federal Government as that imposed by the same words of the Fourteenth Amendment upon the States. It is rather surprising, therefore, to find the Supreme Court in Wight v. Davidson (181 U. S. 371; 21 Sup. Ct. Rep. 616; 45 L. ed. 900) in its efforts to distinguish that case from Norwood v. Baker (172 U. S. 269; 19 Sup. Ct. Rep. 187; 43 L. ed. 443), saying: "In the present case is involved the constitutionality of an act of Congress regulating assessments on property in the District of Columbia in respect to which the jurisdiction of Congress in matters municipal as well as political, is exclusive, and not controlled by the provisions of the Fourteenth Amendment. No doubt, in the exercise of such legislative powers, Congress is subject to the provisions of the Fifth Amendment to the Constitution of the United States, which provides, among other things, that no person shall be deprived of life, liberty, or property without due process of law, nor shall private property be taken for public use without just compensation. But it by no means necessarily follows that a long and consistent construction put upon the Fifth Amendment, and maintaining the validity of acts of Congress relating to public improvements within the District of Columbia, is to be deemed overruled by a decision concerning the operation of the Fourteenth Amendment as controlling state legislation." In a dissenting opinion filed by Justice Harlan and concurred in by Justices White and McKenna, it is said with reference to the observations above quoted from the majority opinion: "I refer to this part of its (the Court's) opinion only for the purpose of recording my dissent from the intimation that what a State might not do in respect of the deprivation of property without due process of law, Congress under the Constitution could, perhaps, do in respect of property in this District. It is inconceivable to me that the question whether a person has been deprived of property without due process of law can be determined upon principles applicable to the Fourteenth Amendment, but not applicable to the Fifth Amendment, or upon principles applicable under the Fifth Amendment, and not applicable under the Fourteenth Amendment. It

As declared by Justice Harlan in his dissenting opinion, in French v. Barber Asphalt Paving Co., it is uncertain whether or not the court intended definitely to repudiate the doctrine that a special assessment upon a piece of property in substantial excess of the benefits conferred upon that property by the improvement, is a taking of property without due process of law. This uncertainty became still more evident by the decisions of the court in Louisville & Nashville R. R. Co. v. Barber Asphalt Paving Co.,20 decided in 1905, and Martin v. District of Columbia,21 decided

in 1907.

The first case was a proceeding under a Kentucky statute to enforce a lien upon a lot for grading, curbing, and paving a carriage highway. The plaintiff in error pleaded that its only interest in the lot was for a right of way for a railroad, and that neither this right of way nor the lot would or could get any benefit from the improvement, but that, on the contrary, the property would be injured by the increase of travel close to the plaintiff's tracks. To the argument that this assessment was, therefore, in violation of the Fourteenth Amendment, the Supreme Court, however, answered that the reasoning assumed an exactness in the premises which did not exist. The amount of benefit which a piece of property will derive from a public improvement is, it is declared, a matter of forecast and estimate, not of direct and exact statement. "In its general aspects, at least, it is peculiarly a thing to be decided by those who make the laws." The court then go on to state the doctrine, which it declares to have been implied in the earlier cases, that so long as an act is in general fair and just, it is not rendered invalid by the fact that, as to particular areas, the benefits are less than the assessments. "If a particular case of hardship arises under it in its natural and ordinary application that hardship must be borne as one of the imperfections of human things."

seems to me that the words 'due process of law' mean the same in both Amendments. The intimidation to the contrary in the opinion of the court is, I take leave to say, without any foundation upon which to rest, and is most mischevious in its tendency,"

20 197 U. S. 430; 25 Sup. Ct. Rep. 466; 49 L. ed. 819. 21 205 U. S. 135; 27 Sup. Ct. Rep. 440; 51 L. ed. 743.

In Martin v. District of Columbia2 was involved a law of Congress relating to the District of Columbia providing for the opening of alleys and the assessment of damages upon the lots in the squares concerned. Contest was made by certain lot owners that their properties would not be benefited, at least to the extent of the assessments, by the opening of alleys. The court, after referring to the terms of the law, say:

"The law is not a legislative adjudication concerning a particular place and a particular plan, like the one before the court in Wight v. Davidson, 181 U. S. 371; 21 Sup. Ct. Rep. 616; 45 L. ed. 900. It is a general prospective law. The charges in all cases are to be apportioned within the limited taxing district of a square, and therefore it well may happen, it is argued, that they exceed the benefit conferred, in some case of which Congress never thought and upon which it could not have passed. The present is said to be a flagrant instance of that sort. If this be true, perhaps the objection to the act would not be disposed of by the decision in Louisville & N. R. Co. v. Barber Asphalt Paving Co., 197 U. S. 430; 25 Sup. Ct. Rep. 466; 49 L. ed. 819. That case dealt with the same objection, to be sure, in point of form, but a very different one in point of substance. The assessment in question there was an assessment for grading and paving, and it was pointed out that a legislature would be warranted in assuming that grading and paving streets in a good-sized city commonly would benefit adjoining land more than it would cost. The chance of the cost being greater than the benefit is slight, and the excess, if any, would be small. These and other considerations were thought to outweigh a merely logical and mathematical possibility on the other side, and to warrant sustaining an old and familiar method of taxation. It was emphasized that there should not be extracted from the very general language of the 14th Amendment, a system of delusive exactness and merely logical form.

"But when the chance of the cost exceeding the benefit grows large, and the amount of the not improbable excess is great, it may not follow that the case last cited will be a precedent. Constitu22 205 U. S. 135; 27 Sup. Ct. Rep. 440; 51 L. ed. 743.