Argument for Plaintiff in Error.

239 U.S.

according to area of the property, notice and hearing as to amount and extent of benefits are not required, in the absence of abuse of power, in order to render such legislative action due process of law within the meaning of the Federal Constitution. Spencer v. Merchant, 125 U. S. 345.

While constitutional protection against deprivation of property without due process of law is available to persons deprived of private rights by arbitrary state action, whether by legislative authority or otherwise, no such deprivation exists where, as in this case, there is no proof of disproportion between the assessment made and the benefit conferred showing arbitrary legislative action.

The Maryland Statutes of 1906 and 1908 providing for imposition of a special tax on property in Baltimore at a specified rate per square foot for a specified number of years for paving the streets of that city held not to be arbitrary and unconstitutional as depriving the owners of their property without due process of law. 120 Maryland, 671, affirmed.

THE facts, which involve the constitutionality of a statute of Maryland and a tax levy thereunder on property in Baltimore for improving the paving of streets in that city, are stated in the opinion.

Mr. Geo. Washington Williams and Mr. Charles J. Bonaparte, with whom Mr. John Holt Richardson was on the brief, for plaintiff in error:

A legislature cannot bind parties interested by a recital of facts, or prescribed conclusive rules of evidence, for either of these would be only an indirect method of disposing of controversies. Cooley, Const. Law, 46.

Due process of law is not confined to judicial proceedings. The article of the Constitution is a restraint on the legislative as well as on the executive and judicial powers of the Government. Murray v. Hoboken Land Co., 18 How. 272; Ulman v. Baltimore, 72 Maryland, 592; Norwood v. Baker, 172 U. S. 278; State v. Newark, 37 N. J. L. 415, 423; Thomas v. Gain, 35 Michigan, 155, 162; Tidewater Co. v. Coster, 18 N. J. Eq. (3 C. E. Green) 519; Stuart v. Palmer, 74 N. Y. 183.

239 U.S.

Argument for Plaintiff in Error.

There is great dissimilarity between an assessment or tax for general purposes and an assessment for special benefits. Dillon on Mun. Corp., § 761.

The act is invalid because the proceeds derived from the assessment were expressly designed to be applied to the improvement of streets other than those which had been assessed specially, and, therefore, the said assessment is not made to pay for improvements specially benefiting the property thereby assessed.

The act disturbs vested rights, to-wit: By imposing a tax or special assessment upon property for special benefits long since accrued to said property, which improvements had been paid for in whole or in part other than by special assessment upon the property abutting thereon. The act is retrospective in its operation, thereby disturbing the rights, which had accrued to and become fixed in property holders coming within its terms and provisions of said act. Norwood v. Baker, 172 U. S. 278.

The general law relative to taxation has always been held inapplicable to assessments. The general law requires all property to be assessed for the general purposes of Government according to its value and therefore, if a piece of property escapes the tax assessors it may later be assessed for such time as it has escaped taxation. That would imply carrying out an intention theretofore declared, and would not be retrospective in the legal conception of that term.

Where the municipality has discretion as to whether a local improvement shall be paid for by special assessment or by general taxation, it cannot, after the improvement had been made, levy special assessment therefor. 25 Am. & Eng. Enc. 1176; Bennett v. Seibert, 10 Inc. App. 380; Spaulding v. Bates, 25 Inc. App. 490; Galveston R. R. v. Green, 35 S. W. Rep. 819; Holliday v. Atlanta, 96 Georgia, 377-381; Kelly v. Luning, 76 California, 309; Bennett v. Emmetsburg, 115 N. W. Rep. 582-588; Pease VOL. CCXXXIX-14

Argument for Plaintiff in Error.

239 U. S. v. Chicago, 21 Illinois, 500; Doutherty v. Chicago, 53 Illinois, 79; Market Street Case, 49 California, 546; Alford v. Dallas, 35 S. W. Rep. 816; Cooley on Taxation, p. 1155; Seattle v. Kelleher, 195 U. S. 351.

Matter of Flatbush Lands does not apply, and see 60 N. Y. 398.

The front foot rule, when made applicable to the city as a whole, is arbitrary, inequitable, unjust and oppressive. Ulman v. Baltimore, 72 Maryland, 587; Cass Farm Co. v. Detroit, 181 U. S. 396; Parker v. Detroit, id. 399; Zehnder v. The Barber Asphalt Co., 106 Fed. Rep. 107.

Special assessments upon property for the cost of public improvements are in violation of the Constitution, if they are in substantial excess of benefits received. Sears v. Boston, 173 Massachusetts, 550; Weed v. Same, 172 Massachusetts, 28; Dexter v. Boston, 176 Massachusetts, 247; Hall v. Street Com., 177 Massachusetts, 434; Lorden v. Coffey, 178 Massachusetts, 489.

The act is illegal and void, because it arbitrarily imposes a fixed sum upon property holders as and for special benefits alleged to have been received, without giving an opportunity to the property holder to show as a matter of fact said property is not benefited to the extent to which it is declared by the act to be benefited, and is therefore a taking of property without due process of law. 8 Cyc. 1083, 1108; Holden v. Hardy, 169 U. S. 366; Murray v. Hoboken Co., 18 How. 272; Ulman v. Baltimore, 72 Maryland, 587; Clark v. Mitchell, 69 Missouri, 627; United States v. Cruikshank, 92 U. S. 542; Cooley's Con. Lim. 503-505; Columbia Bank Case, 4 Wheat. 235; Am. & Eng. Encyc. 1173; Maryland Trust Co. v. Baltimore, 93 Atl. Rep. 454.

Notice should have been given even though the apportionment was made by the legislature; in view of the oppressiveness and arbitrariness of the rule established by the legislature, and its unjust and unequal operation

in this case, notice should have been required, and in its absence, the act should be held unconstitutional.

The act imposes upon the property coming within its terms, a special tax which was not contemplated by the authority which improved the various streets of Baltimore City, at the times of such improvement as a means of meeting the expense of the same.

The act covers all property coming within its terms, even though the statute or ordinance under which such improvements were made, declare that such improvements were made for the public benefit, and not for local advantage to the property abutting upon such improve

ments.

In this event the two acts would be conflicting and it would certainly be against public policy to adhere to the latter act. Property holders would never be secure in their holdings. An act of this character really amounts to an assessment upon one street for the benefit of another.

The act is void on the ground that it imposes a double tax, in part at least, for the same benefit. State v. Newark, 37 N. J. L. 415.

Mr. S. S. Field, with whom Mr. Alexander Preston was on the brief, for defendants in error.

MR. JUSTICE DAY delivered the opinion of the court.

Phillip Wagner, a corporation, filed its bill on behalf of itself and other taxpayers owning property in Baltimore City, adjoining or abutting upon a public highway which has been paved with improved paving without having been assessed for any part of the cost thereof, and who are similarly situated with the complainant, who is the owner of certain real estate, improved by seven two-story dwelling houses, situated on Philadelphia Road, a public highway within the limits of Baltimore

City, which property abuts and adjoins upon the public highway, which had been paved with improved paving, to-wit, vitrified brick, which property, or its present or former owner, had never been specially assessed for any part of the cost of said improved paving. The bill was filed for the purpose of enjoining the enforcement of a certain act of the General Assembly of the State of Maryland (1906, Chapter 401; 1908, Chapter 202, of the Laws of Maryland), by which statute the General Assembly enacted that a special tax be levied and imposed upon property in the City of Baltimore benefited by improved paving of the amount specified; said tax to continue as to each property for ten years from the time it attached thereto, the proceeds to be used for improved paving in the City of Baltimore, as provided in the act. The act provided that, for these purposes, all landed property in the City of Baltimore, adjoining or abutting upon any public highway, which had been or should thereafter be paved with improved paving without special assessment of any part of the cost upon the abutting or adjoining property owners, by the City of Baltimore or the State Roads Commission, or other public commission or agency, or by said city and such commission or agency, or by either or both, and any railroad or railway company occupying with tracks a portion of such highway, was declared to be specially benefited by such improved paving to an extent greater than the entire amount of the special tax levied under the act. The property so benefited was divided into three classes: Class A to include all landed property in the City of Baltimore, adjoining or abutting upon a public highway paved with improved paving and having a width of not less than thirty feet so paved; Class B to include all such landed property in the City of Baltimore adjoining or abutting upon a public highway paved with improved paving and having a width of less than thirty feet and