Wight v. Davidson/Dissent Harlan

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

I am of opinion that the judgment of the court of appeals of the District of Columbia should be affirmed.

Under the act of March 3d, 1899, it was competent for the jury, without regard to special benefits, to put upon the lands abutting upon each side of the streets authorized to be opened and extended not less than one half of the entire damages found due and awarded in respect of the property taken under the 1st section of the act. It could only consider the question of benefits in respect to 'adjacent' pieces or parcels of land. For the reasons stated in my dissenting opinion in French v. Barber Asphalt Paving Co. 181 U.S. 324, post, 625, 21 Sup. Ct. Rep. 625. I cannot agree that such a statutory regulation or rule is consistent with the Constitution of the United States. My views upon the general subjects of special assessments are expressed in that opinion, and need not be repeated here.

The court in the present case says that Congress has exclusive jurisdiction, municipal and political, in the District of Columbia, and is not controlled by the 14th Amendment, although it is controlled by the 5th Amendment providing, 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,' the court proceeds, 'it by no means necessarily follows that a long and consistent construction put upon the 5th Amendment and maintaining the validity of the 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 14th Amendment as controlling legislation.' These observations were made to sustain the proposition that the principles announced in Norwood v. Baker, 172 U.S. 269, 43 L. ed. 443, 19 Sup. Ct. Rep. 187, in reference to the validity of state enactments relating to local public improvements, have no necessary application to a case of a like kind arising under a similar act of Congress relating to local public improvements in the District of Columbia. As the court does not pursue this subject, nor express any final view upon the question referred to, I refer to this part of its 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 of the United States could, perhaps, do in respect of property in this District. The 5th Amendment declares that no person shall be deprived of property 'without due process of law.' The 14th Amendment declares that no state shall deprive any person of property 'without due process of law.' It is inconceivable to me that the question whether a person has been deprived of his property without due process of law can be determined upon principles applicable under the 14th Amendment but not applicable under the 5th Amendment, or upon principles applicable under the 5th and not applicable under the 14th Amendment. It seems to me that the words 'due process of law' mean the same in both Amendments. The intimation 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 mischievous in its tendency.

The court withdraws this case from the rule established in Norwood v. Baker upon the ground that the legislature of Ohio 'had not defined or designated the abutting property as benefited by the improvement.' But this is a mistake; for, as plainly stated in the opinion in that case, the state, by statute, had authorized villages to establish streets and highways, and to meet the cost of such improvements by special assessments on the abutting property, according to frontage, without regard to special benefits accruing to the property so assessed. And, to repeat what I have said in French v. Barber Asphalt Paving Co., just decided (181 U.S. 324, post, 625, 21 Sup. Ct. Rep. 625); it was because, and only because, of this rule, prescribed by the legislature, that the state enactment was condemned as unconstitutional. The enactment, under which the council of Norwood proceeded, put upon the abutting property, when the municipality proceeded under the front-foot rule, the entire cost of opening a street; precluding, by a rule established for such cases, the owner of the property from showing that the cost was in excess of special benefits and was confiscatory to the extent of such excess. Norwood v. Baker expressly rejected the theory that the entire cost of a public highway, in which the whole community was interested, could be put, under legislative sanction, on the abutting property, where such cost was in substantial excess of the special benefits accruing to the property assessed.

The court in this case says that 'special facts showing an abuse or disregard of the law, resulting in an actual deprivation of property, may give grounds for applying for relief to a court of equity.' What this means, when taken in connection with what has been said and intimated by the court in French v. Barber Asphalt Paving Co.,-especially when considered in the light of the broad declarations in other cited cases as to legislative power,-I confess I am unable to say. What 'special facts,' in the case of special assessments to meet the cost of a public improvement, would show an abuse of the law? What is meant by the words 'an actual deprivation of property? If private property abutting on a street be assessed for the cost of improving the street in excess of special benefits accruing to such property, is the assessment to the extent of the excess such an abuse of the law or such an actual deprivation of property as would justify the interference of a court of equity? In Norwood v. Baker this question was answered in the affirmative. Whether that doctrine is to remain the court does not distinctly say, either in the present case or in any of the cases relating to special assessments just determined.

I submit that if the present case is to be distinguished from Norwood v. Baker it should be done upon grounds that do not involve a misapprehension of the scope and effect of the decision in that case. If Congress can, by direct enactment, put a special assessment upon private property to meet the entire cost of a public improvement made for the benefit and convenience of the entire community, even if the amount so assessed be in substantial excess of special benefits, and therefore, to the extent of such excess, confiscate private property for public use without compensation, it should be declared in terms so clear and definite as to leave no room for doubt as to what is intended.