I concurred fully in the original opinion of Mr. Chief Justice ELLIS in this case, and I concur with him in most of the reasoning employed and with the conclusions reached by him, in his opinion on this petition for rehearing, — but in one respect, at least, I go farther than the Chief Justice and for a somewhat different reason. As that reason is in conflict with the weight of authority, as I understand the decided cases, and is not in harmony with the views of my brethren, I give it with some diffidence, fully realizing that I may be entirely wrong and the majority entirely right. But this does not subtract anything from the sincerity of my thought, and I think the situation here presented calls for a brief expression of my views. These views were largely impressed upon my mind by a controversy which came before me when a trial judge some twenty years ago. If this were a case of first impression, I would be in favor of holding the statute (Chap. 9298 of Laws of 1923), in so far as the same authorizes a municipality to impose the entire cost of a street improvement upon the abutting property, unconstitutional and void. This particular provision of the statute constituted a departure from the general statutory *Page 400 system theretofore in effect in this State on that subject. See Sec. 1858, Rev. Gen. Stats. 1920, taken from the Act of 1879. Our former statute recognized the doctrine that the public should bear a part of the burden of all street paving; that is, that a part of the cost of construction should be paid for out of funds arising from general taxation. This doctrine is to my mind founded upon just and sound principles. As concerns its powers and duties respecting streets, municipalities are purely public corporations, a municipality has no rightful and lawful authority to open or pave a street except to fill a public need. If the public necessity or convenience does not require it, the city should not, and lawfully cannot, construct or pave it. If the necessity or convenience of the general public of the city does reasonably require it, then the city, as the representative of the public, should in all fairness pay some reasonable proportion of the cost. To place the entire cost upon the abutting property owners cannot, in my opinion, in anycase, be fair and just, or constitutional; and to do so is to acknowledge, either that the ordinance authorizing the work wasultra vires to begin with, because the work was not for the public benefit, or that the assessment was unfair and discriminatory, in that it was levied on a few abutting owners whereas the benefit was largely for the general public.

If a small class, even though they may derive some special or primary benefit, are to be singled out and taxed with the whole cost of a street improvement, constructed for the benefit of the public, it would seem that this would deny them the equal protection of the laws, contrary to the provisions of both our State and Federal Constitutions.

In his very able dissenting opinion in the case of *Page 401 French v. Barber Asphalt Paving Co., Justice Harlan, with whom concurred Justices White and McKenna, said:

"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."

But, as I understand the prior cases and the original opinion in this case, the constitutionality of the statute in this respect has been heretofore recognized by this Court, and is recognized by the original opinion of the Chief Justice in this case, concurred in by the majority of the members of the Court including the writer. I concurred, not because I had changed my views, however mistaken they may have been, but in deference to the doctrine that when courts have announced, for the guidance and government of individuals, municipalities, and the public, certain controlling *Page 402 principles of law, or have given a construction to a statute upon which individuals, municipalities, corporations and the public have relied in making contracts, issuing obligations, and other like acts, they ought not, as a general rule, to withdraw or overrule them, thus disturbing rights that have been acquired upon the faith that the construction which had been announced was the law of the land. (7 Rawle C. L., 1000.) Courts should not always be slaves to precedent," but without the doctrine of stare decisis there would be no stability to the course of judicial decisions, and the public would not know how to act in simplest matters nor attorneys how to advise their clients. As both the statute, and the construction given to it by the Court in this case, indicate that abutting property cannot be assessed for the cost of street improvements in excess of the special benefits conferred, there is ground for the hope that in actual proceedings under the statute, no great injustice will result to abutting owners. I concur therefore that the petition for rehearing should be denied. *Page 403