French v. Barber Asphalt Paving Company/Dissent Harlan

Mr. Justice Harlan (with whom concurred Mr. Justice White and Mr. Justice McKenna) dissenting:

The special tax bills here in question purport to cover the cost of paving with asphalt a part of Forest avenue in Kansas City, Missouri. The work was done under the orders of the common council of that city, and the tax bills, it is alleged, were made out in conformity with the provisions of the city charter.

By § 2 of article 9 of the city charter it was provided that 'the city shall have power to cause to be graded, regraded, constructed, reconstructed, paved, repaved, blocked, reblocked, graveled, regraveled, macadamized, remacadamized, curbed, recurbed, guttered, reguttered, or otherwise improved or repaired, all streets, alleys, sidewalks, avenues, public highways and parts thereof,. . . and to pay therefor out of the general fund or by issuing special tax bills as herein mentioned. . . .'

The same section provides that no resolution for the paving, repaving, etc., of any street, alley, avenue, public highway, or part thereof 'shall be passed by the common council except upon recommendation of the board of public works indorsed thereon; and provided further, that if the resident owners of the city who own a majority in front feet of all the lands belonging to such residents and fronting on the street, alley, avenue, public highway or part thereof to be improved shall, within thirty days after the first day of the publication of such resolution, file with the board of public works a petition, signed by them, to have such street, alley, avenue, public highway, or part thereof paved, repaved, blocked, reblocked graveled, regraveled, madacamized, or remacadamized with a different kind of material or in a different manner from that specified in such resolution, then the ordinance providing for the doing of such work or making such improvement shall provide that the work shall be done in the manner and with the material specified in such petition, and in such case the ordinance need not be recommended by the board of public works as aforesaid. If the remonstrance of the resident property owners above mentioned shall be filed with the city clerk, as herein provided, then the power of the common council to make the proposed improvement and pay therefor in special tax bills shall cease until a sufficient number of persons so remonstrating, or their grantees, shall, in writing, withdraw their names, or the property represented by them, from such remonstrance, so that said remonstrance shall cease to represent a majority of the resident property owners as above provided, when the common council shall proceed in the manner above mentioned to cause the proposed improvement to be made.' But by a subsequent section it was provided: 'When it shall be proposed to pave, repave, block, reblock, gravel, regravel, macadamize, or remacadamize any street, alley, avenue, public highway, or part thereof, and pay therefor in special tax bills, if the common council shall, by ordinance, find and declare that the resolution provided in § 2 of this article has been published as therein required, and that the resident owners of the city who own a majority in front feet of all the lands belonging to such residents fronting on the street, alley, avenue, public highway, or part thereof to be improved have not filed with the city clerk a remonstrance against the doing of such work or a petition for the making of such improvement with a different kind of material or in a different manner from that specified in such resolution, or that such petition was filed for the doing of the work as mentioned in said ordinance, such finding and declaration shall be conclusive for all purposes, and no special tax bill shall be held invalid or affected for the reason that such resolution was not published as therein required, or that a remonstrance or petition sufficiently signed was filed as therein required, or that such petition was not filed or was insufficiently signed.' § 4.

By § 3 it was provided that 'all ordinances and contracts for all work authorized to be done by § 2 of this article shall specify how the same is to be paid for, and in case payment is to be made in special tax bills, the city shall in no event nor in any manner whatever be liable for or on account of the work.'

The cost of work done on sidewalks, streets, avenues, alleys, and public highways is provided for in the 5th and 6th sections of the same article, as follows: 'The cost of all work on any sidewalk, including curbing and guttering along the side thereof, exclusive of the grading of the same, shall be charged as a special tax upon the adjoining lands according to the frontage thereof on the sidewalk. The cost of all other work specified in the first three sections of this article on all streets, avenues, alleys, and public highways, or parts thereof, shall be charged as a special tax on the land on both sides of and adjoining the street, avenue, alley, or public highway, or parts thereof improved, according to the frontage thereof. . . When any work other than grading or regrading, as last aforesaid, shall be completed, and is to be paid for in special tax bills, the board of public works shall cause the city engineer to compute the cost thereof, and apportion the same among the several lots or parcels of land to be charged therewith, and charge each lot or parcel of land with its proper share of such cost according to the frontage of such land. The board of public works shall, after the cost of any work has been so apportioned for payment in special tax bills, except as hereinafter provided, make out and certify, in favor of the contractor or contractors to be paid, a special tax bill for the amount of the special tax, according to such apportionment, against each lot or parcel of land to be charged.'

By § 18 of the same article every special tax bill issued under its provisions is made 'a lien upon the land described therein, upon the date of the receipt of the board of public works therefor, and such lien shall continue for two years thereafter.'

It thus appears that under the charter of Kansas City the cost of the paving or the repaving of any street, avenue, alley, or public highway is put upon the abutting property under a rule absolutely excluding any consideration whatever of the question of special benefits accruing, by reason of the work done, to such property. It is true the abutting owner, in defense of a suit brought on a special tax bill, may show any mistake or error in the amount of such bill, or that the work was not done in a workmanlike manner; but the cost, set forth in the tax bill, or when ascertained in a suit on the tax bill, must be borne by the abutting property, according to its frontage, even if such cost be in substantial excess of the special benefits, if any, accruing to the property assessed. So the abutting property must bear the cost, according to frontage, even if such cost equals the full or actual market value of the land. Thus, the entire property abutting on the statute, that is, by the city jected by the statute, that is, by the city charter, to a lien in favor of the contractor or his assignee, may be taken from the owner, for the benefit of the general public, to meet the cost of improving a public highway in which the entire community is interested. But that circumstance, it is contended, is not of the slightest consequence; for-so the argument is support of the statute runs the legislature having determined that the land abutting on a public street shall, according to its frontage, meet the cost, whatever it may be, of improving that street, the courts cannot inquire whether the owner has received any such special benefit as justifies the putting upon him of a special burden not shared by the general public for whose use the improvement was made, nor inquire whether the cost of the work equals or exceeds the value of the property. I cannot assent to this principle. It recognizes, contrary to the principles announced in Norwood v. Baker, 172 U.S. 269, 277, 279, 293, 297, 43 L. ed. 443, 447, 452, 454, 19 Sup. Ct. Rep. 187, the existence in the legislative branch of government of powers which, I take leave to say, cannot be exercised without violating the Constitution of the United States. In that case, upon the fullest consideration, it was held, as had been held in previous cases, that the due process of law prescribed by the 14th Amendment requires compensation to be made or secured to the owner when private property is taken by a state or under its authority for public use. We also held that an assessment upon abutting property for the cost and expense incurred in opening a street was to be referred to the power of taxation, and that the Constitution of the United States forbade an exercise of that power that would put upon private property the cost of a public work in substantial excess of the special benefits accruing to it from such work. Let us see if that was not the decision of the court.

In that case the attempt was made to put upon the abutting property the entire cost incurred in opening a public street through the owner's lands. No inquiry as to special benefits was made; indeed, no inquiry of that character was permissible under the ordinance in virtue of which the street was opened. It was not denied that the ordinance was consistent with the statutes of the state; and the question was distinctly presented whether a special assessment for the cost of opening a street through private property could be sustained under the Constitution of the United States if it was made under a rule excluding all inquiry as to special benefits accruing to the abutting property by reason of such improvement. In that case it was the public, and not the owner of the property, that wished the street to be opened. The judgment of the circuit court enjoining the assessment was affirmed upon the ground-so our mandate expressly stated-that the assessment was 'under a rule which excluded any inquiry as to special benefits, and the necessary operation of which was, to the extent of the excess of the cost of opening the street in question over any special benefits accruing to the abutting property therefrom, to take private property for public use without compensation.' The mandate was in harmony with the opinion, for the court said: 'It should be observed that the decree did not relieve the abutting property from liability for such amount as could be properly assessed against it. Its legal effect, as we now adjudge, was only to prevent the enforcement of the particular assessment in question. It left the village, in its discretion, to take such steps as were within its power to take, either under existing statutes or under any authority that might thereafter be conferred upon it, to make a new assessment upon the plaintiff's abutting property for so much of the expense of opening the street as was found upon due and proper inquiry to be equal to the special benefits accruing to the property.' As the court in the present case makes some observations as to the scope of the decision in Norwood v. Baker, it will be well to ascertain the precise grounds upon which our judgment in that case was based. Those grounds are indicated by the following extracts from the opinion:

'Undoubtedly abutting owners may be subjected to special assessments to meet the expenses of opening public highways in front of their property-such assessments, according to well-established principles, resting upon the ground ''that special burdens may be imposed for special or peculiar benefits accruing from public improvements. Mobile County v. Kimball'', 102 U.S. 691, 703, 704, 26 L. ed. 238, 242; Illinois C. R. Co. v. Decatur, 147 U.S. 190, 202, 37 L. ed. 132, 136, 13 Sup. Ct. Rep. 293; Bauman v. Ross, 167 U.S. 548, 589, 42 L. ed. 270, 288, 17 Sup. Ct. Rep. 966, and authorities there cited. And according to the weight of judicial authority the legislature has a large discretion in defining the territory to be deemed specially benefited by a public improvement, and which may be subjected to special assessment to meet the cost of such improvements. In Williams v. Eggleston, 170 U.S. 304, 311, 42 L. ed. 1047, 1049, 18 Sup. Ct. Rep. 617, where the only question, as this court stated, was as to the power of the legislature to cast the burden of a public improvement upon certain towns which had been judicially determined to be towns benefited by such improvement, it was said: 'Neither cas it be doubted that if the state Constitution does not prohibit, the legislature, speaking generally, may create a new taxing district, determine what territory shall belong to such district and what property shall be considered as benefited by a proposed improvement.' But the power of the legislature in these matters in not unlimited. There is a point beyond which the legislative department, even when exerting the power of taxation, may not go consistently with the citizen's right of property. As already indicated, the principle underlying special assessments to meet the cost of public improvements is that the property upon which they are imposed is peculiarly benefited, and therefore the owners do not, in fact, pay anything in excess of what they receive by reason of such improvement. But the guaranties for the protection of private property would be seriously impaired if it were established as a rule of constitutional law that the imposition by the legislature, upon particular private property, of the entire cost a public improvement, irrespective of any peculiar benefits accruing to the owner from such improvement, could not be questioned by him in the courts of the country.'

Again: 'It is one thing for the legislature 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 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.' Further, in the same case: 'The decree does not prevent the village, if it has or obtains power to that end, from proceeding to make an assessment in conformity with the view indicated in this opinion; namely: That while abutting property may be opecially assessed on account of the expense attending the opening of a public street in front of it, such assessment must be measured or limited by the special benefits accruing to it, that is, by benefits that are not shared by the general public; and that taxation of the abutting property for any substantial excess of such expense over special benefits will, to the extent of such excess, be a taking of private property for public use without compensation.'

Does the court intend in this case to overrule the principles announced in Norwood v. Baker? Does it intend to reject as unsound the doctrine that 'the principle underlying special assessments. . . to meet the cost of public improvements is that the property upon which they are imposed is peculiarly benefited, and therefore the owners do not, in fact, pay anything in excess of what they receive by reason of such improvement?' Is it the purpose of the court, in this case, to overrule the doctrine that taxation of abutting property to meet the cost of a public improvement-such taxation being for an amount in substantial excess of the special benefits received-'will, to the extent of such excess, be a taking of private property for public use without compensation?' The opinion of the majority is so worded that I am not able to answer these questions with absolute confidence. It is difficult to tell just how far the court intends to go. But I am quite sure, from the intimations contained in the opinion, that it will be cited by some as resting upon the broad ground that a legislative determination as to the extent to which land abutting on a public street may be specially assessed for the cost of paving such street is conclusive upon the owner, and that he will not be heard, in a judicial tribunal or elsewhere, to complain even if, under the rule prescribed, the cost is in substantial excess of any special benefits accruing to his property, or even if such cost equals or exceeds the value of the property specially taxed. The reasons which, in my judgment, condemn such a doctrine as inconsistent with the Constitution, are set forth in Norwood v. Baker, and need not be repeated. But I may add a reference to some recent adjudications.

In Sears v. Boston, 173 Mass. 71, 78, 43 L. R. A. 834, 837, 53 N. E. 138, 139, which was the case of a special assessment to meet the cost of watering streets, the court said: 'It is now established by the highest judicial authority that such assessments cannot be so laid upon any estate as to be in substantial excess of the benefit received. The case of Norwood v. Baker, 172 U.S. 269, 43 L. ed. 443, 19 Sup. Ct. Rep. 187, contains an elaborate discussion of the subject, with a citation of authorities from many of the states, and holds that a local assessment for an amount in substantial excess of the benefit received is in violation of the 14th Amendment to the Constitution of the United States, inasmuch as it would deprive one of his property without compensation, and so without due process of law. The authority of this case is controlling in all state courts, and if it were not, it is in accordance with sound principles, and with the great weight of authority in other courts. The principles which have often been stated by this court lead to the same result. Boston v. Boston & A. R. Co. 170 Mass. 95, 101, 49 N. E. 95, and cases cited.' In Sears v. Boston Street Comrs. 173 Mass. 350, 352, 53 N. E. 876, which was the case of charges upon land to meet the cost of certain sewerage work done under municipal authority, Mr. Justice Knowlton, delivering the unanimous judgment of the court, said: 'If we treat the determination of these charges as a local and special assessment upon particular estates, we have to consider the principles on which such taxation is founded. It is well established that taxation of this kind is permissible under the Constitution of this commonwealth and under the Constitution of the United States, only when founded upon special and peculiar benefits to the property from the expenditure on account of which the tax is laid, and then only to an amount not exceeding such special and peculiar benefits. . . . The fact that the charges to be determined are for the construction, maintenance, and operation of the sewerage works of the whole city, gives some force to the possibility of a construction which includes all benefits; but whether this construction should be adopted or not, the charges may be determined on any grounds which the street commissioners deem just and proper, and may not be founded in any great degree, if at all, upon special and peculiar benefits, and may in any particular case largely exceed such benefits. This fact in itself is enough to bring the statute within the prohibition of the Constitution, inasmuch as it purports to authorize a taking of property to pay a charge which is not founded on a special benefit or equivalent received by the estate or its owner. Such a taking would be without due process of law,' citing Norwood v. Baker, 172 U.S. 269, 43 L. ed. 443, 19 Sup. Ct. Rep. 187; State, New Brunswick Rubber Co., Prosecutor, v. New Brunswick Strcet & Sewer Comrs. 38 M. J. L. 190, 20 Am. Rep. 380; Barnes v. Dyer, 56 Vt. 469, and Thomas v. Gain, 35 Mich. 155, 24 Am. Rep. 535. In Dexter v. Boston, 176 Mass. 247, 251, 252, 57 N. E. 379, 380, the court said: 'It is now settled law in this court as it is in the Supreme Court of the United States, and in many other courts, that after the construction of a public improvement a local assessment for the cost of it cannot be laid upon real estate in substantial excess of the benefit received by the property. Such assessments must be founded on the benefits, and be propertional to the benefits.' To the same effect are Hutcheson v. Storrie, 92 Tex. 688, 45 L. R. A. 289, 51 S. W. 848; Adams v. Shelbyville, 154 Ind. 467, 49 L. R. A. 797, 57 N. E. 114; McKee v. Pendleton, 154 Ind. 652, 57 N. E. 532; Fay v. Springfield, 94 Fed. Rep. 409; Loeb v. Columbia Twp. 91 Fed. Rep. 37; Charles v. Marion, 98 Fed. Rep. 166; Cowley v. Spokane, 99 Fed. Fep. 840.

The court, after referring to the declaration of the cupreme court of Missouri to the effect that the 14th Amendment was not applicable to this case, proceeds, in order to 'prevent confusion and relieve from repetition,' to refer to some of the cases arising under that and the 5th Amendment. In the same connection the court, referring to the 5th and 14th Amendments, says that 'while the language of those amendments is the same [in respect of the deprivation of property without due process of law], yet, as they were ingrafted upon the Constitution at different times and in widely different circumstances of our national life, it may be that questions may arise in which different constructions and applications of their provisions may be proper.' As the court expressly declines to formulate any rule to determine for all cases 'what it is for a state to deprive a person of life, liberty, or property without due process of law,' I will not enter upon a discussion of that question, but content myself with saying that the prohibition against the deprivation of property without due process of law cannot mean one thing under the 5th Amendment and another thing under the 14th Amendment, the words used being the same in each amendment. If the court intends to intimate the contrary in its opinion, I submit that the intimation is not sustained by any former decision, and is not justified by sound principle.

The first case to which the court refers as arising under the 14th Amendment is Davidson v. New Orleans, 96 U.S. 97, 103-105, 24 L. ed. 616, 619, 620. From that case sentences are quoted which were intended to remove the impression, then supposed to exist with some, that under that Amendment it was possible to bring 'to the test of the decision of this court the abstract opinions of every unsuccessful litigant in a state court of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded.' But the court in the present case overlooks another part of the opinion in Davidson v. New Orleans, which was pertinent to the issue in that case, and is pertinent to the present discussion. After speaking of the difficulty of an attempt to lay down any rule to determine the full scope of the 14th Amendment, and suggesting that the wise course was to proceed by the gradual process of judicial inclusion and exclusion, the court said: 'As contributing, to some extent, to this mode of determining what class of cases do not fall within its provision, we lay down the following proposition, as applicable to the case before us: That whenever by the laws of a state, or by state authority, a tax, assessment, servitude, or other burden is imposed upon property for the public use, whether it be for the whole state or of some more limited portion of the community, and those laws provide for a mode of confirming or contesting the charge thus imposed, in the ordinary courts of justice, with such notice to the person, or such proceeding in regard to the property, as is appropriate to the nature of the case, the judgment in such proceedings cannot be said to deprive the owner of his property without due process of law, however obnoxious it may be to other objections.' Here is a direct affirmation of the doctrine that a tax, assessment, servitude, or other burden may be imposed by a state, or under its authority, consistently with the due process of law prescribed by the 14th Amendment, if the person owning the property upon which such tax, assessment, servitude, or burden is imposed is given an opportunity, in some appropriate way, to contest the matter. In the present case no such opportunity was given to the plaintiffs in error, and the state court held that they had no right to show, in any tribunal, that their property was being taken for the cost of improving a public street in substantial excess of any special benefits accruing to them beyond those accruing to the general public owning and using the street so improved.

Reference is made by the court to McMillen v. Anderson, 95 U.S. 38, 41, 42, 24 L. ed. 335, 336, in which will be found certain observations as to the words 'due process of law.' In that case the only question was whether a statute of Louisiana imposing a license tax, which did not give a person an opportunity to be present when the tax was assessed against him, or provide for its collection by suit, was in violation of the 14th Amendment. The court, after referring to the provision requiring, in case the license tax was not paid, that the collector should give ten days' written or printed notice to the delinquent, and if at the expiration of that time the license was not fully paid the tax collector might, without judicial formality proceed to seize and sell, after ten days' advertisement, the property of the delinquent, or so much as might be necessary to pay the taxes and costs, said: 'Another statute declares who is liable to this tax, and fixes the amount of it. The statute here complained of relates only to the manner of its collection. Here is a notice this the party is assessed, by the proper officer, for a given sum, as a tax of a certain kind, and ten days' time given him to pay it. Is not this a legal mode of proceeding? It seems to be supposed that it is essential to the validity of this tax that the party charged should have been present, or had an opportunity to be present, in some tribunal when he was assessed. But this is not, and never has been, considered necessary to the validity of a tax. And the fact that most of the states now have boards of revisers of tax assessments does not prove that taxes levied without them are void. Nor is the person charged with such a tax without legal remedy by the laws of Louisiana. It is probable that in that state, as in others, if compelled to pay the tax by a levy upon his property, he can sue the proper party and recover back the money as paid under duress, if the tax was illegal. But however that may be, it is quite certain that he can, if he is wrongfully taxed, stay the proceedings for its collection by process of injunction. See Fouqua's Code of Practice of Louisiana, arts. 296-309, inclusive. The act of 1874 recognizes this right to an injunction, and regulates the proceedings when issued to stay the collection of taxes. shall be treated by the courts as preferred cases, and imposes a double tax upon a dissolution of the injunction.' Here we have, contrary to the intimation given in the opinion of the court in this case, a recognition of the principle that the 14th Amendment does apply to cases of taxation under the laws of a state. And it is to be observed that the court in McMillen v. Anderson takes care to show that under the laws of Louisiana the taxpayer was given an opportunity to be heard in respect of the validity of the tax imposed upon him.

Among the cases cited in support of the conclusions announced by the majority are: Mattingly v. District of Columbia, 97 U.S. 687, 692, 24 L. ed. 1098, 1100; Kelly v. Pittsburgh, 104 U.S. 78, 26 L. ed. 658; Spencer v. Merchant, 125 U.S. 345, 31 L. ed. 763, 8 Sup. Ct. Rep. 921; Paulsen v. Portland, 149 U.S. 30, 40, 37 L. ed. 637, 641, 13 Sup. Ct. Rep. 750; Bauman v. Ross, 167 U.S. 548, 42 L. ed. 270, 17 Sup. Ct. Rep. 966; and Parsons v. District of Columbia, 170 U.S. 45, 42 L. ed. 943, 18 Sup. Ct. Rep. 521.

It seems to me quite clear that the particular question before us was not involved or determined in any of those cases.

In Mattingly v. District of Columbia it was said that the legislature may direct special assessments for special road or street improvements 'to be made in proportion to the frontage, area, or market value of the adjoining property, at its discretion.' But that falls far short of deciding that an assessment in proportion to frontage could be sustained if it exceeded the value of the property or was for an amount in excess of the special benefits accruing to the property assessed. Besides, no question was made in that case as to the cost of the work exceeding special benefits.

In Kelly v. Pittsburgh the only point involved or adjudged was that the 14th Amendment did not stand in the way of the legislature of a state extending the limits of a city or township so as to include lands fit for agricultural use only, and make them subject to taxation for the local purposes of the extended city or town, although the owners did not enjoy the advantages of the municipal government to the same extent as those who resided in the thickly settled parts of the city or town. It was not a case in which the property of particular persons was specially assessed by a rule not applicable to all other assessments. On the contrary it was admitted in that case that the methods adopted to ascertain the value for purposes of local taxation of the lands there in question were such as were usually employed, and that the manner of apportioning and collecting the tax was not unusual or materially different from that in force in all communities where land was subject to taxation. It was held that it was not the function of the court to correct mere errors in the valuation of lands for purposes of taxation.

In Spencer v. Merchant no question arose as to an excess of the cost of the improvement there in question over special benefits. The question before the court was as to the constitutionality of a statute validating what had been judicially determined to be a void assessment. This court so declared when it said that the plaintiff, who questioned the validity of the statute, contended 'that the statute of 1881 was unconstitutional and void because it was an attempt by the legislature to validate a void assessment without giving the owners of the lands assessed an opportunity to be heard upon the whole amount of the assessment.' The court held that the statute itself was, under the circumstances of that case, all the notice and hearing the owners of the lands required. There was no occasion for any general declaration as to the powers of the legislature which would cover cases of void assessments validated by legislative enactment where the amount assessed upon particular property was in substantial excess of special benefits accruing to it. Referring to Spencer v. Merchant, this court said in Norwood v. Baker: 'The point raised in that case-the only point in judgment was one relating to proper notice to the owners of the property assessed, in order that they might be heard upon the question of the equitable apportionment of the sum directed to be levied upon all of them. This appears from both the opinion and the dissenting opinion in that case.'

In Paulsen v. Portland the only point adjudged was that notice, by publication in a newspaper, of the time and place of the meeting of viewers appointed to estimate the proportionate share which each piece should bear of the amount to be assessed upon the property in a sewer district for the cost of a sewer, was sufficient 'to bring the proceedings within due process of law.' The court in that case took care to say that it did not question the proposition that 'notice to the taxpayer in some form must be given before an assessment for the construction of a sewer can be sustained, as in any other demand upon the individual for a portion of his property.' That case cannot be held to support the views of the supreme court of Missouri, for that court in this case held in substance that, under legislative authority, property fronting on a public street could all be taken to pay the cost of improving the street, leaving nothing whatever to the owner, and that, too, without any notice and without any right in the owner, in any form, it show that the amount required to be paid exceeded, not only any special benefits accruing to the property, but even the value of the property assessed.

In Bauman v. Ross we had a case in which a special assessment was made, under an act of Congress, imposing upon the lands benefited one half of the amount awarded by the court as damages for each highway or reservation, or part thereof, condemned and established under the act. The assessment was directed to be 'charged upon the lands benefited by the laying out and opening of such highway or reservation or part thereof,' and the jury was directed 'to ascertain and determine what property is thereby benefited.' The same act directed the jury to assess against each parcel which it found to be so benefited its proportional part of the sum assessed, provided that as to any tract, part of which only had been taken, due allowance should be made for the amount, if any, 'which shall have been deducted from the value of the part taken on account of the benefit to the remainder of the tract.' In such a case the owner of the property being given full right to be heard before an authorized tribunal upon the question of special benefits, no question could arise such as is presented in the present one.

In Parsons v. District of Columbia the question was as to the validity of an act of Congress which provided for establishing, in this District, 'a comprehensive system regulating the supply of water and the erection and maintenance of reservoirs and of water mains.' It was provided that assessments levied for water mains should be at the rate of $1.25 per linear foot against all lots or land abutting upon the street, road, or alley in which a water main is laid. This court, among other things, said: 'Another complaint urged is that the assessment exceeded the actual cost of the work, and this is supposed to be shown by the fact that the expense of putting down this particular main was less than the amount raised by the assessment. But this objection overlooks the fact that the laying of this main was part of the water system, and that the assessment prescribed was not merely to put down the pipes, but to raise a fund to keep the system in efficient repair. The moneys raised beyond the expense of laying the pipeare not paid into the general treasury of the District, but are set saide to maintain and repair the system.' But the court took care to add, 'and there is no such disproportion between the amount assessed and the actual cost as to show any abuse of leagislative power.' The words thus added are significant, and if they had not been added the opinion would not have passed without dissent. The words referred to justify the conclusion that if there had been an abuse of legislative power; if the amount assessed had been substantially or materially in excess of the cost of the work or of the value of the property assessed or of the special benefits received, the owners of the abutting property might justly have complained of a violation of their constitutional rights.

The court, in its opinion, quotes certain passages from Cooley's Treatise on Taxation, in which the author refers to the different modes in which the cost of local public work may be met; namely: (1) a general tax to cover the major part of the cost, the smaller portion to be levied upon the estates specially benefited; (2) a tax on the land specially benefited to meet the major part of the cost, the smaller part to be paid by the general public; and (3) a tax for the whole cost on the lands in the immediate vicinity of the work. In respect of each of these methods the court cites these words of Cooley: 'In a constitutional point of view, either of these methods is admissible, and one may sometimes be just and another at other times. In other cases it may be deemed reasonable to make the whole cost a general charge, and levy no special assessment whatever. The question is legislative, and like all legislative questions, may be decided erroneously; but it is reasonable to expect that, with such latitude of choice, the tax will be more just and equal than it would be were the legislature required to levy it by one inflexible and arbitrary rule.' Cooley, Taxn. 447, chap. 20, § 5; Id. 2d ed. 637, § 5.

But in the same chapter from which the above extract was made the author discusses fully the underlying principles of special assessments, saying: 'Special assessments are a peculiar species of taxation, standing apart from the general burdens imposed for state and municipal purposes, and governed by principles that do not apply universally. The general levy of taxes is understood to exact contributions in return for the general benefits of government, and it promises nothing to the persons taxed beyond what may be anticipated from an administration of the laws for individual protection and the general public good. Special assessments, on the other hand, are made upon the assumption that a portion of the community is to be specially and peculiarly benefited in the enhancement of the value of property peculiarly situated as regards a contemplated expenditure of public funds; and, in addition to the general levy, they demand that special contributions, in consideration of the special benefit, shall be made by the person receiving it. The justice of demanding the special contribution is supposed to be evident in the fact that the persons who are to make it, while they are made to bear the cost of a public work, are at the same time to suffer no pecuniary loss thereby, their property being increased in value by the expenditure to an amount at least equal to the sum they are required to pay. This is the idea that underlies all these levies.' Cooley, Taxn. 416, chap. 20, § 1; Id. 2d ed. 606, § 1. To this we may add the declaration of the author when, speaking for the supreme court of Michigan in Thomas v. Gavin, 35 Mich. 155, 162, 24 Am. Rep. 535, 538, he said: 'It is generally agreed that an assessment levied without regard to actual or probable benefits is unlawful as constituting an attempt to appropriate private property to public uses.'

The court overlooked other passages in the same chapter of Cooley's Treatise on Taxation. Referring to the rule of assessment by the front foot upon property abutting on a local improvement, where no taxing district has been established over which the cost could be distributed by some standard of benefit, actual or presumptive, Cooley says: 'But it has been denied, on what seem the most conclusive grounds, that this is permissible. It is not legitimate taxation, because it is lacking in one of its indispensalbe elements. It considers each lot by itself, compelling each to bear the burden of the improvement in front of it, without reference to any contribution to be made to the improvement by any other property, and it is consequently without any apportionment. From accidental circumstances the major part of the cost of an important public work may be expended in front of a single lot; those circumstances not at all contributing to make the improvement more valuable to the lot thus specially burdened, perhaps even having the opposite consequence. But whatever might be the result in particular cases, the fatal vice in the system is that it provides for no taxing districts whatever. It is as arbitrary in principle, and would sometimes be as unequal in operation, as a regulation that the town from which a state officer chanced to be chosen should pay his salary, or that that locality in which the standing army or any portion of it should be stationed for the time being should be charged with its support. If one is legitimate taxation the other would be. In sidewalk cases a regulation of the kind has been held admissible, but it has been justified as a regulation of police, and is not supported on the taxing power exclusively. As has been well said, to compel individuals to contribute money or property to the use of the public, without reference to any common ratio, and without requiring the sum paid by one piece or kind of property, or by one person, to bear any relation whatever to that paid by another, is to lay a forced contribution, not a tax, within the sense of those terms as applied to the exercise of powers by any enlightened or responsible government.' Cooley, Taxn. 453, chap. 20, § 53; Id. 2d ed. 646, 647.

The author also says what I do not find in the opinion of the court in this case: 'There can be no justification for any proceeding which charges the land with an assessment greater than the benefits; it is a plain case of appropriating private property to public uses without compensation

The court also cites from Dillon's Treatise on Municipal Corporations certain passages to the effect that whether the expense of making local improvements 'shall be paid out of the general treasury, or be assessed upon the abutting property or other property specially benefited, and if in the latter mode, whether the assessment shall be upon all property found to be benefited, or alone upon the abutters, according to frontage or according to the area of their lots, is, according to the present weight of authority, considered to be a question of legislative expediency.' 2 Dill. Mun. Corp. 4th ed. p. 912, § 752. These views need not be controverted in this case, and of their soundness I have no doubt when we are ascertaining the general rule to be applied in the particular classes of cases referred to by the author. But the above quotation from Dillon by no means indicates his opinion as to the application of the general rule announced by him. In the same chapter from which the court quotes I find the following principles announced by the author as deduced from an extended reference to numerous adjudged cases: 'Special benefits to the property assessed; that is, benefits received by it in addition to those received by the community at large, is the true and only just foundation upon which local assessments can rest; and to the extent of special benefits it is everywhere admitted that the legislature may authorize local taxes or assessments to be made.' Again: 'When not restrained by the Constitution of the particular statute, the legislature has a discretion commensurate with the broad domain of legislative power, in making provisions for ascertaining what property is specially benefited and how the benefits shall be apportioned. This proposition, as stated, is nowhere denied; but the adjudged cases do not agree upon the extent of legislative power. The courts which have followed the doctrine of the leading case in New York (People ex rel. Griffin v. Brooklyn, 4 N. Y. 419, 55 Am. Dec. 266), have asserted that the authority of the legislature in this regard is quite without limits; but the decided tendency of the later decisions including those of the courts of New Jersey, Michigan, and Pennsylvania, is to hold that the legislative power is not unlimited, and that these assessments must be apportioned by some rule capable of producing reasonable equality, and that provisions of such a nature as to make it legally impossible that the burden can be apportioned with proximate equality are arbitrary exactions and not an exercise of legislative authority.' 2 Dill. Mun. Corp. 4th ed. p. 934, § 761. Further, the author says: 'Whether it is competent for the legislature to declare that no part of the expense of a local improvement of a public nature shall be borne by a general tax, and that the whole of it shall be assessed upon the abutting property and other property in the vicinity of the improvements, thus for itself conclusively determining, not only that such property is specially benefited, but that it is thus benefited to the extent of the cost of the improvement, and then to provide for the apportionment of the amount by an estimate to be made by designated boards or officers, or by frontage or superficial area, is a question upon which the courts are not agreed. Almost all of the earlier cases asserted that the legislative discretion in the apportionment of public burdens extended this far, and such legislation is still upheld in most of the states. But since the period when express provisions have been made in many of the state constitutions requiring uniformity and equality of taxation, several courts of great respectability, either by force of this requirement or in the spirit of it, and perceiving that special benefits actually received by each parcel of contributing property was the only principle upon which such assessments can justly rest, and that any other rule is unequal, oppressive, and arbitrary, have denied the unlimited scope of legislative discretion and power, and asserted what must upon principle be regarded as the just and reasonable doctrine, that the cost of a local improvement can be assessed upon particular property only to the extent that it is specially and peculiarly benefited; and since the excess beyond that is a benefit to the municipality at large, it must be borne by the general treasury.' 2 Dill. Mun. Corp. 4th ed. p. 935, § 761.

I agree with the court in saying that Cooley and Dillon are text writers of high authority for learning and accuracy. But I cannot agree that the extracts from their treatises found in its opinion correctly or fully state their views upon the particular question now before us.

The declaration by the court that the decision in Norwood v. Baker was placed upon the ground that the burdens imposed upon Mrs. Baker's property amounted to confiscation is, I submit, an inadequate view of our decision. The word 'confiscation' is not to be found in the opinion in that case. The affirmance of the judgment in that case was upon the sole ground that the assessment was made under a rule that absolutely excluded any inquiry as to special benefits. Such a rule was held to be void because it rested upon the theory that to meet the cost of opening a street private property could be specially assessed for an amount in substantial excess of special benefits accruing to it from the improvement made in the interest of the general public.

If it may be inferred from what is said in the opinion of the court in this case that a special assessment resulting in the confiscation of the entire property assessed might not be sustained I have to say that manifestly confiscation does occur when the property specially assessed is all taken to meet the cost of a public improvement supposed to be specially beneficial to the owner. So if the property is assessed beyond the special benefits accruing there is confiscation to the extent of such excess. But if confiscation, in any from, will not be tolerated, what becomes of the broad declarations in the opinions in some of the cited cases to the effect that the legislature may prescribe the extent to which private property is specifically benefited by a local public improvement, and that its action in that respect cannot be questioned by the owner of the property assessed even if it appeared that the amount assessed exceeded the special benefits, or even if it appeared that the cost of the improvement exceeded the value of the property assessed? Are we to understand from the interpretation now placed upon the decision in Norwood v. Baker that the courts may, for the protection of the property owner, interfere when a legislative determination amounts to confiscation, pure and simple, but that they cannot interfere when the amount assessed is in substantial excess of the benefits received? In my judgment, some of the cases referred to in the opinion of the court contain general declarations as to the powers of the legislature in the matter of special assessments which went far beyond what was necessary to be said in order to dispose of the respective cases. Those declarations, literally interpreted, seem to recognize the legislature in this country as possessing absolute, arbitrary power in the matter of special assessments imposed to meet the cost of a public improvement,-indeed, all the powers, in the matter of taxation, that belong to the Parliament of Great Britain. The opinions in some of these cases recall the wise observations of Chief Justice Marshall, when, speaking for this court, he said: 'It is a maxim not to be disregarded that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.' Cohen v. Virginia, 6 Wheat. 264, 399, 5 L. ed. 257, 290. We live under a Constitution which is the supreme law of the land. It enumerates the powers of government, and prescribes limitations and restrictions upon legislative authority as to the property of citizens. Some of these limitations and restrictions apply equally to the Congress of the United States and to the legislatures of the states. If it be true that the only ground upon which a special assessment can be legally imposed upon particular private property to meet the cost of a public improvement is that such property receives, or may reasonably be held to receive, special benefits not shared by the general public,-and no one, I take it, will dispute the soundness of that principle,-and if it be true that the property cannot be made to bear a proportion of such costs in substantial excess of special benefits, it necessarily follows that the owner of the property is entitled to protection against any legislative rule or requirement that puts upon his property a burden greater than can be lawfully imposed upon it. How can he obtain such protection except through the courts? To say that he cannot do so is to say that the legislature possesses an absolute, unlimited power over rights of property which is inconsistent with the supreme law of the land. Is it to become a canon of constitutional construction that the courts may interfere when the legislature authorizes a special assessment that will amount to the confiscation of the entire property assessed, but will not interfere when the confiscation is only to a limited, although a material, extent? In other words, Is there to be a difference, so far as the powers of the courts are concerned, between confiscation, under the guise of taxation, of the entire property of the citizen, and confiscation of only a part of it?

I have spoken of special assessments where the amount assessed was in substantial excess of special benefits. The words 'substantial excess' have been used because, in the language of this court in Norwood v. Baker, already cited, exact equality of taxation is not always attainable, and for that reason the excess of cost over special benefits, unless it be of a substantial character, ought not to be regarded by a court of equity when its aid is invoked to restrain the enforcement of a special assessment. I do not doubt-indeed, the opinion in Norwood v. Baker concedes-that the legislature has a wide discretion in cases of special assessments to meet the cost of improving or opening public highways. But I deny that the owner of abutting property can be precluded from showing that the amount assessed upon him is in substantial excess of special benefits accruing to his property. To the extent of such excess the burden should be borne by the community for whose benefit the improvement is made. I entirely concur in the views of Church, Ch. J., as expressed in Guest v. Brooklyn, 69 N. Y. 506. He said: 'The right to make a public street is based upon public necessity, and the public should pay for it. To force an expensive improvement [against the consent of the owners or a majority of them] upon a few property owners against their consent, and compel them to pay the entire expense, under the delusive pretense of a corresponding specific benefit conferred upon their property, is a species of despotism that ought not to be perpetuated under a government which claims to protect property equally with life and liberty. Besides its manifest injustice, it deprives the citizen practically of the principal protection [aside from constitutional restraints] against unjust taxation, viz., the responsibility of the representative for his acts to his constituents. As respects general taxation where all are equally affected, this operates, but it has no beneficial application in preventing local taxation for public improvements. The majority are never backward in consenting to, or even demanding improvements which they may enjoy without expense to themselves.' 2 Dill. Mun. Corp. 4th ed. 934, note 1.

At the same time this case was determined the court announced its judgment in Wight v. Davidson, 181 U.S. --, ante, 616, 21 Sup. Ct. Rep. 616, on appeal from the court of appeals of the District of Columbia. In its opinion in that case it makes some reference to Norwood v. Baker to which it is appropriate to refer in this opinion. The court, in Wight v. Davidson, says: 'There [in Norwood v. Baker] 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 designated 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 the abutting owner to be heard on that subject, this court held that 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, and accordingly affirmed the decree of the circuit court of the United States, which, while preventing the enforcement of the particular assessment in question, left the village free to make a new assessment upon the plaintiff's abutting property for so much of the expense of opening the street as would be found, upon due and proper inquiry, to be equal to the special benefits accruing to the property.' This language implies that the assessment in Norwood v. Baker was without legislative sanction and hence the judgment rendered by this court; whereas, it distinctly and unmistakably appears from the opinion in that case that what the village of Norwood did was under a legislative enactment authorizing it to open the street there in question and assess the cost upon the abutting property, according to its frontage, without regard to special benefits, and without any inquiry upon that subject. And it was because and only because of this rule established by the legislature that the court held the assessment invalid. I submit that this case cannot be distinguished from Norwood v. Baker upon the ground that the village of Norwood proceeded without legislative sanction.

In my opinion the judgment in the present case should be reversed upon the ground that the assessment in question was made under a statutory rule excluding all inquiry as to special benefits and requiring the property abutting on the avenue in question to meet the entire cost of paving it, even if such cost was in substantial excess of the special benefits accruing to it; leaving Kansas City to obtain authority to make a new assessment upon the abutting property for so much of the cost of paving as may be found upon due inquiry to be not in excess of the special benefits accruing to such property. Any other judgment will, I think, involve a grave departure from the principles that protect private property against arbitrary legislative power exerted under the guise of taxation.