Supreme Court of United States.
*390 Mr. John Cunneed for Tonawanda.
*391 Mr. Tracy C. Becker for Lyon.
MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of the court.
The complainant in the court below did not put his claim for equitable relief upon any allegation that, in the proceedings to pave Delaware street and to assess the cost of the improvement upon the abutting property, there had been any departure from the provisions of the statute, or that there had been attempted any discrimination against him or his property. Nor was it denied that it is the settled law of the State of New York that the method prescribed, of meeting the expense by apportioning the entire cost of such an improvement upon the abutting land according to the foot-front rule, is a valid exercise of legislative power. The People v. Mayor &c., 4 N.Y. 419; Spencer v. Merchant, 100 N.Y. 585.
What was claimed was that a state statute, which directs municipalities to assess the whole expense of paving any highway therein upon the lands abutting upon the highway so improved in proportion to the feet frontage of such lands, without providing for a judicial inquiry into the value of such lands and the benefits actually to accrue to them by the proposed improvement, is unconstitutional and void. And it was held by the court below that, notwithstanding the courts of the State may have held otherwise, it was its duty to follow the decision of this court in the case of Norwood v. Baker, 172 U.S. 269, which was regarded by the court below as establishing the principle contended for, and accordingly the defendants were enjoined from enforcing payment of the assessment. But we think that, in so understanding and applying the decision in Norwood v. Baker, the learned judge extended the doctrine of that case beyond its necessary meaning.
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 of the Constitution of the United States. The purpose of that amendment is to extend to the citizens and residents of the States the same *392 protection against arbitrary state legislation affecting life, liberty and property, as is afforded by the Fifth Amendment against similar legislation by Congress. 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.
The facts disclosed by the present record do not show any abuse of the law, nor that the burdens imposed on the property of the complainant were other than those imposed upon that of other persons in like circumstances; and it is obvious, from expressions in the opinion of the trial judge, that he reached his conclusion because constrained by what he understood to be the principle established by the Norwood case.
It is unnecessary to enter into an examination of the authorities on this subject, as that has recently been done in French v. Barber Asphalt Paving Co., in error to the Supreme Court of the State of Missouri, and in Wight v. Davidson, on appeal from the Court of Appeals of the District of Columbia, in the former of which the effect of the Fourteenth, and, in the latter, that of the Fifth Amendment, was considered. 181 U.S. 324, 371.
There were other questions passed upon in the trial court and discussed in the briefs, but the conclusion we now reach renders it unnecessary for us to consider them.
The decree of the Circuit Court is reversed and the cause is remanded to that court with directions to dismiss the bill of complaint.
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 Company and in Wight v. Davidson, just determined. 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 *393 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 Fourteenth Amendment of the Constitution of the United States." The contrary was not asserted by the learned judge of the Circuit Court, nor has any one in this case contended that the Fourteenth 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 Fourteenth 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 Fifth 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 Fifth Amendment which could not be done by a State under the same clause of the Fourteenth Amendment.
