In Wight v. Davidson,17 decided at the same time as Tonawanda v. Lyon and French v. Barber Asphalt Paving Co., the objection was raised to an act of Congress relating to the District of Columbia, that it arbitrarily fixed the amount of benefits to be assessed upon the property, irrespective of the amount of benefits actually received or conferred upon the land assessed by the opening of a street The lower court, in its opinion, had said with reference to Norwood v. Baker, "As we understand that decision, which undoubtedly has the effect of greatly qualifying the previous expressions of the same high tribunal upon the matter of special assessments, the limit of assessment on the private owner of property is the value of special benefit which was accrued to him for the public improvement adjacent to his property." As to this construction thus placed upon its position the Supreme Court say:

"We think the court of appeals in regarding the decision in Norwood v. Baker as overruling our previous decisions . . misconceived the meaning and effect of that decision. There the question was as to the validity of a village ordinance which imposed the entire cost and expenses of opening a street, irrespective of the question whether the property was benefited by the opening of the street. The legislature of the State had not defined or designated the abutting property as benefited by the improvement, nor had the village authorities made any inquiry into the question of benefits. There having been no legislative determination as to what lands were benefited, no inquiry instituted by the village councils, and no opportunity afforded to abutting owners to be heard on the subject, this court held 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,18 a taking under guise of taxation of private property for public use, without compensation." 19

16 181 U. S. 389; 21 Sup. Ct. Rep. 609; 45 L. ed. 908. 17 181 U. S. 371; 21 Sup. Ct. Rep. 616; 45 L. ed. 900.

18 Italics are by the court.

19 In an earlier chapter it has been shown that the requirement of the Fifth Amendment that no person shall be "deprived of property without due process of law lays the same obligation upon the Federal Government as that imposed by the same words of the Fourteenth Amendment upon the States. It is rather surprising, therefore, to find the Supreme Court in Wight v. Davidson (181 U. S. 371; 21 Sup. Ct. Rep. 616; 45 L. ed. 900) in its efforts to distinguish that case from Norwood v. Baker (172 U. S. 269; 19 Sup. Ct. Rep. 187; 43 L. ed. 443), saying: " In the present case is involved the constitutionality of an act of Congress regulating assessments on property in the District of Columbia in respect to which the jurisdiction of Congress in matters municipal as well as political, is exclusive, and not controlled by the provisions of the Fourteenth Amendment. No doubt, in the exercise of such legislative powers, Congress is subject to the provisions of the Fifth Amendment to the Constitution of the United States, which provides, 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 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 state legislation." In a dissenting opinion filed by Justice Harlan and concurred in by Justices White and McKenna, it is said with reference to the observations above quoted from the majority opinion: "I refer to this part of its (the Court's) 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 could, perhaps, do in respect of property in this District. ... It is inconceivable to me that the question whether a person has been deprived of property without due process of law can be determined upon principles applicable to the Fourteenth Amendment, but not applicable to the Fifth Amendment, or upon principles applicable under the Fifth Amendment, 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 intimidation 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 mischevious in its tendency."

As declared by Justice Harlan in his dissenting opinion, in French v. Barber Asphalt Paving Co., it is uncertain whether or not the court intended definitely to repudiate the doctrine that a special assessment upon a piece of property in substantial excess of the benefits conferred upon that property by the improvement, is a taking of property without due process of law. This uncertainty became still more evident by the decisions of the court in Louisville & Nashville R. R. Co. v. Barber Asphalt Paving Co.,20 decided in 1905, and Martin v. District of Columbia,21 decided in 1907.

The first case was a proceeding under a Kentucky statute to enforce a lien upon a lot for grading, curbing, and paving a carriage highway. The plaintiff in error pleaded that its only interest in the lot was for a right of way for a railroad, and that neither this right of way nor the lot would or could get any benefit from the improvement, but that, on the contrary, the property would be injured by the increase of travel close to the plaintiff's tracks. To the argument that this assessment was, therefore, in violation of the Fourteenth Amendment, the Supreme Court, however, answered that the reasoning assumed an exactness in the premises which did not exist. The amount of benefit which a piece of property will derive from a public improvement is, it is declared, a matter of forecast and estimate, not of direct and exact statement. "In its general aspects, at least, it is peculiarly a thing to be decided by those who make the laws." The court then go on to state the doctrine, which it declares to have been implied in the earlier cases, that so Jong as an act is in general fair and just, it is not rendered invalid by the fact that, as to particular areas, the benefits are less than the assessments. " If a particular case of hardship arises under it in its natural and ordinary application that hardship must be borne as one of the imperfections of human things."

20 197 U. S. 430; 25 Sup. Ct. Rep. 466; 49 L. ed. 819.

21 205 U. S. 135; 27 Sup. Ct. Rep. 440; 51 L. ed. 743.