Opinion of the Court.

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.

That it was not intended by this decision to overrule Bauman v. Ross, and Parsons v. The District of Columbia is seen in the opinion, where both those cases are cited, and declared not to be inconsistent with the conclusion reached. Norwood v. Baker, 172 U. S. 269, 294. 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; and this was thought by a majority of this court to have been the case in Norwood v. Baker. But no such facts are disclosed in this record.

The second proposition upon which the Circuit Court proceeded was that sufficient notice had not been given in respect of the assessments upon the property. This question, we think, has been disposed of by previous decisions, and has been sufficiently discussed in a previous part of this opinion.

The decree of the Court of Appeals of the District of Columbia is reversed and the cause remanded to that court with directions to affirm the decree of the Supreme Court of the District of Columbia.

MR. JUSTICE HARLAN, (with whom concurred MR. JUSTICE WHITE and MR. JUSTICE MCKENNA,) dissenting.

VOL. CLXXXI-25

JUSTICES HARLAN, WHITE and 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 3, 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 first section of that 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 Company, 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 Fourteenth Amendment, although it is controlled by the Fifth 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 Fifth Amendment and maintaining the validity of 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 Fourteenth Amendment as controlling legislation." These observations were made to sustain the proposition that the principles announced in Norwood v. Baker, 172 U. S. 269, 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

JUSTICES HARLAN, WHITE and MCKENNA, dissenting.

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 Fifth Amendment declares that no person shall be deprived of property "without due process of law." The Fourteenth 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 Fourteenth Amendment but not applicable under the Fifth Amendment, or upon principles applicable under the Fifth and not applicable under the Fourteenth 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 Company, just decided, 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

JUSTICES HARLAN, WHITE and MCKENNA, dissenting.

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.

Statement of the Case.

TONAWANDA v. LYON.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF NEW YORK.

No. 214. Argued February 26, 1901.-Decided April 29, 1901.

It was not the intention of the court in Norwood v. Baker, 172 U. S. 269, 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 to the Constitution of the United States; but the purpose of that 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.

THIS was the case of a bill in equity filed in the Circuit Court of the United States for the Northern District of New York on September 9, 1899, by James B. Lyon, a citizen of the State of New York, against the town of Tonawanda, a municipal corporation of that State, and John K. Patton, supervisor of said town. The object of the bill was to restrain the defendants from enforcing payment of a certain assessment against tracts or parcels of land belonging to the complainant, situated in the town of Tonawanda, and abutting on Delaware street in said town. The assessment was levied against said tracts of land to meet the expense of grading and paving said street, in pursuance of the provisions of statutes of the State of New York and of an order of the town board of Tonawanda. The principal matter complained of was that the method of meeting the expense of grading and paving the said street was by assessing the same against the lots abutting on the street according to frontage thereon, and that the statutes and proceedings thereunder, which provided for that method, were contrary to the provisions of the Constitution of the United States, in that thereby the land of the complainant would be taken for public use without just compensation and he would be deprived of his property without due process of law.