lature to prescribe it as a general rule that property abutting on a street opened by the public shall be deemed to have been specially benefited by such improvement, and, therefore, should specially contribute to the cost incurred by the public. It is quite a different thing to lay it down as an absolute rule that such property, whether it is in fact benefited or not by the opening of the street, may be assessed by the front foot for a fixed sum, representing the whole cost of the improvement, and without any right in the property-owner to show, when an assessment of that kind is made, or is about to be made, that the sum so fixed is in excess of the benefits received.

"In our judgment, 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, a taking, under the guise of taxation, of private property for public use without compensation. We say 'substantial excess,' because exact equality of taxation is not always attainable; and for that reason the excess of cost over special benefits, unless it be of a material character, ought not to be regarded by a court of equity, when its aid is invoked to restrain the enforcement of a special assessment."

The reasoning of the court, as shown in the quoted paragraphs, is not perfectly clear, but the argument would seem to be that inasmuch as the assessments may never constitutionally exceed the amount of the benefits, therefore the assessment in question was illegal because no opportunity was provided for showing that in fact the benefits were exceeded, or that if this were shown, no provision was made for the reduction of the assessment.13

13 In a dissenting opinion concurred in by three justices, after citing authorities as to the discretionary power vested in a legislature to establish special taxing districts, it is said:

"The legislative act charging the entire cost of an improvement upon certain described property is a legislative determination that the property described constitutes the area benefited, and also that it is benefited to the extent of such cost. It is unnecessary to inquire how far courts might be justified in interfering in a case in which it appeared that the legislature had attempted to cast the burden of a public improvement on property remote therefrom, and obviously in no way benefited thereby; for here the prop

§ 528. Norwood v. Baker Explained and Limited by Later

Cases.

The decision in the case of Norwood v. Baker was for a time extraordinarily disconcerting. For if, as the case seemed to hold, a special assessment according to some uniform rule of assessment, such as the front-foot rule, could not be applied until it had been determined, after a hearing, that it would not impose upon any particular piece of property a tax in substantial excess of the erty charged with the burden of the improvement is that abutting upon such improvement, the property prima facie benefited thereby,- and the authorities which I have cited declare that it is within the legislative power to determine the area of the property benefited, and the extent to which it is benefited. It seems to me strange to suggest that an act of the legislature, or an ordinance of a city, casting, for instance, the cost of a sewer or sidewalk in a street upon all the abutting property, is invalid, unless it provides for a judicial inquiry whether such abutting property is in fact benefited, and to the full cost of the improvement, or whether other property might not also be to some degree benefited, and therefore chargeable with part of the cost.

.

Here the plaintiff does not allege that her property was not benefited by the improvement, and to the amount of the full cost thereof; does not allege any payment or offer to pay the amount properly to be charged upon it for the benefits received, or even express a willingness to pay what the courts shall determine ought to be paid. On the contrary, so far as the record discloses, either by the bill or her testimony, her property may have been enhanced in value ten times the cost of the condemnation.

"The testimony is equally silent as to the matter of damages and benefits. There is not only no averment, but not even a suggestion, that any other property than that abutting on the proposed improvement, and belonging to plaintiff, is in the slightest degree benefited thereby. Nor is there an averment or a suggestion that her property, thus improved by the opening of a street, has not been raised in value far above the cost of improvement. So that a legislative act charging the cost of an improvement in laying out a street (and the same rule obtains if it was the grading, macadamizing, or paving the street) upon the property abutting thereon is adjudged, not only not conclusive that such abutting property is benefited to the full cost thereof, but, further, that it is not even prima facie evidence thereof, and that, before such an assessment can be sustained, it must be shown, not simply that the legislative body has fixed the area of the taxing district, but, also, that by suitable judicial inquiry it has been established that such taxing district is benefited to the full amount of the cost of the improvement, and also that no other property is likewise benefited. The suggestion that such an assessment be declared void, because the rule of assessment is erroneous, implies that it is prima facie erroneous to cast upon property abutting upon an improvement the cost thereof; that a legislative act casting upon such abutting

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.

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 particu lar 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.

In Tonawanda v. Lyon1s 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," 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