Tonawanda v. Lyon/Dissent Harlan

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

My views touching the general questions arising in this case have been expressed in French v. Barber Asphalt Paving Co. 181 U.S. 324, post, 625, 21 Sup. Ct. Rep. 625, and in Wight v. Davidson, just determined, 181 U.S. 371, post, 616, 21 Sup. Ct. Rep. 616. I adhere to those views, and therefore dissent from the judgment in this case. As stated by the circuit court, the special assessment in question was 'in the proportion which the number of front feet of each of said lots and parcels of land bounding and fronting on said Delaware street in front of which said improvement of paving said street was made, and which are assessed therefor in and by said assessment, bear and are to the aggregate number of feet of frontage of all the lots so bounding on the portion of said street in front of which said improvement was made.' The case, therefore, is one in which, beyond question, private property is specially assessed by the front foot, in the interest of the whole public, for the entire cost of paving a highway, without reference to any special benefits accruing to it, and without the owner of the property being permitted to show that such cost amounts to the confiscation of his property to the extent that it substantially exceeds special benefits, or that it exceeds the value of the property assessed.

The court says that it was not the intention of this court in Norwood v. Baker 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 14th Amendment of the Constitution of the United States.' The contrary was not asserted by the learned judge of the circuit court, nor has anyone in this case contended that the 14th Amendment subverted the taxing systems of the states. But it was contended, and such is my position, that nothing can be done by or under the authority of a state in violation of that Amendment. After that Amendment became part of the Constitution, the only provisions in the state taxing laws or systems that ceased to have operation were those that were inconsistent with the Amendment. No one, I assume, will dispute that proposition.

The court also says that the purpose of the 14th Amendment 'is to extend to the citizens and residents of the states the same protection against arbitrary state legislation affecting life, liberty, and property as is afforded by the 5th Amendment against similar legislation by Congress.' I assent most cordially to this view, and therefore, in another case, felt obliged to express my objection to the intimation that possibly that might be done by Congress under the due process clause of the 5th Amendment which could not be done by a state under the same clause of the 14th Amendment.