The decision in the case of Norwood v. Baker was for a time extraordinarily disconcerting. For if, as the case seemed to hold. a special assessment according to some uniform rule of assessment, such as the front-foot rule, could not be applied until it had been determined, after a hearing, that it would not impose upon any particular piece of property a tax in substantial excess of the erty charged with the burden of the improvement is that abutting upon such improvement, - the property prima facie benefited thereby, - and the authorities which 1 have cited declare that it is within the legislative power to determine the area of the property benefited, and the extent to which it is benefited. It seems to me strange to suggest that an act of the legislature, or an ordinance of a city, casting, for instance, the cost of a sewer or sidewalk in a street upon all the abutting property, is invalid, unless it provides for a judicial inquiry whether such abutting property is in fact benefited, and to the full cost of the improvement, or whether other property might not also be to some degree benefited, and therefore chargeable with part of the cost. . . .

". . . Here the plaintiff does not allege that her property was not benefited by the improvement, and to the amount of the full cost thereof; does not allege any payment or offer to pay the amount properly to be charged upon it for the benefits received, or even, express a willingness to pay what the courts shall determine ought to be paid. On the contrary, so far as the record discloses, either by the bill or her testimony, her property may have been enhanced in value ten times the cost of the condemnation.

"The testimony is equally silent as to the matter of damages and benefits. There is not only no averment, but not even a suggestion, that any other property than that abutting on the proposed improvement, and belonging to plaintiff, is in the slightest degree benefited thereby. Nor is there an averment or a suggestion that her property, thus improved by the opening of a street, has not been raised in value far above the cost of improvement. So that a legislative act charging the cost of an improvement in laying out a street (and the same rule obtains if it was the grading, macadamizing, or paving the street) upon the property abutting thereon is adjudged, not only not conclusive that such abutting property is benefited to the full cost thereof, but, further, that it is not even prima facie evidence thereof, and that, before such an assessment can be sustained, it must be shown, not simply that the legislative body has fixed the area of the taxing district, but, also, that by suitable judicial inquiry it has been established that such taxing district is benefited to the full amount of the cost of the improvement, and also that no other property is likewise benefited. The suggestion that such an lament be declared void, because the rule of assessment is erroneous, implies that it is prima facie erroneous to cast upon property abutting upon an improvement the cost thereof; that a legislative act casting upon such abutting benefit conferred by the improvement upon that property, the practice and procedure of special assessments throughout the country would in many eases have to be revised.

In a series of cases, decided in 1901, however, the court brought back the law very nearly, if not quite, to its former condition. The chief opinion is rendered in French v. Barber Asphalt Paving Co.14 Jn this case it was held that the apportionment of the entire cost of a street pavement upon the abutting lots according to their frontage, without any judicial inquiry as to their value or the benefits they received, might be authorized by the legislature. In its opinion the court review at length the scope and effect given in previous cases to the phrase " due process of law " in its application to the taxing power, and, coming to the case of Norwood v. Baker say, in effect, that that case was a peculiar one, relating to a single piece of property, and that the decree of the court was not based upon a general principle of law that an assessment cannot be levied without provision for a preliminary- hearing to the benefits, but simply, that the particular assessment then before the court was not a proper one. " Its legal effect, as we now adjudge, was only to prevent the enforcement of the particular assessment in question." 15 property the full cost of an improvement is prima facie void; that, being prima facie void, the owner of any property so abutting on the improvement may obtain a decree of a court of equity canceling in toto the assessment, without denying that his property is benefited by the improvement, or paying, or offering to pay, or expressing a willingness to pay, any sum which may be a legitimate charge upon the property for the value of the benefit to it by such improvement.

" In this case no tender was made of any sum, no offer to pay the amount properly chargeable for benefits, there was no allegation or testimony that the legislative judgment as to the area benefited, or the amount of the benefit, >- incorrect, or that other property was also benefited; and the opinion goes to the extent of holding that the legislative determination is not only not conclusive, but also is not even prima facie sufficient, and that in all cases there must be a judicial inquiry as to the area in fact benefited. We have often held the contrary, and, I think, should adhere to those oft-repeated rulings."

14 181 U. S. 324; 21 Sup. Ct. Rep. 625; 45 L. ed. 879.

15 In a dissenting opinion, rendered by Justice Harlan, and concurred in by Justices White and MeKenna, it is argued, and with force, that the doctrine declared in the case at bar does in fact modify that declared in Norwood v. Baker. The argument is, however, too long to be quoted.

In Tonawanda v. Lyon16 practically the same facts as those in French v. Barber Asphalt Paving Co. were involved. In the majority opinion, with reference to the Norwood v. Baker case, it is said: "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, . . . 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."