Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-03-04

This suit was brought TO enjoin the
enforcement or said assessment. The
lower court enjoined its collection and
the village appealed. The court says:
The plaintiffs suit proceeded upon the
ground distinctly stated, that the as
scssment was in violation of the Four
tecnth Amendment providing that no
State shall deprive any person of prop
erty without due process OF law. 1t has
been adJudgcd that the due process of
law prescribed by that amendment re-
Quires compensation to be made or Sc
cured to the owner when private prop
erty is taken by State under its au-
thority for public use. The taking of the
plaintiffs land for Il street was under
the power of eminent domain But the
assessment of the AUDITING property for
Inc cost and expense incurred by the
village was an exercise OF the power of
taxation. Undoubtedly abutting own
ers may be subjected to special assess
ments TO meet the expenses Of opening
pubic highways in front OF their prop
erty-such assessments resting upon the
ground that special burdens may be
imposed for special or peculiar benefits
accruing from public improvements
But the power of the legislature is not
unlimited. 1t is one thing for the legis-
lature to prescribe X as GENERAL.
rule mat property abuttng ON Il street
strsttt be deemed TO nave been Specially
benefited by such Improvement ana
therefore should specially contribute TO
me cost: 1t is quite n different thing to
lay IL down rs an absolute rule that
such property, whether it is in fact
Denentted or not. may be assessed by
me front foot for n fixed suns
and without any right in the owner to
snow mat the sum so fixed is in ex-
cess of the benefits received. In our
Judgment the exaction from the owner
OF private property of the cost of
pubic Improvement in substantial cx-
cess OF the special benefits accruing to
him Is. TO THE EXTENT OF SUCH
EACESS. n taking under the guise of
taxation. of private property for public
use without compensation. 1t will not
escape observation that if the entire
cost incurred in condemninr land
can be assessed back upon the nbutting
property, without enquiry in any form
as to the special benefits the re-
suit will be more injurious to the owner
than if he had been required. in the first
instance. TO open the street at his own
cost. without compensation in respect
To the land taken as Il street; he might
save at least the expenses attending
formal proceedings of condemnation. II
cannot be that any such result is CON
sistent with the principles upon which
rests the power to make special assess
mentS upon property in order to meat
The expense of public improvements in
the vicinity of such property. The views
We httNc cNlItSSeu are supported by
other adjudged cases, as vel as nv
reason and by the principles which
must be recognized as essential for the
protection of private property against
the arbitrary action of governments.
CThe court then quotes from Il large
number of cases, and proceeds): If the
principles announced by the authorities
above cited he applied to the present
case. the result must be an afirmance
of the judgment.
The corporation manifestly proceed
ed upon the theory that the abuttinr
property could be made to bear the
whole cost of the Improvement wheth
er such property was benefited or not
to the extent of such cost. II is said
that court of equity ought not 10
interpose because the plaintiff
did not show or offer TO show by proof
that the amount assessed upon her
property was in excess of the special
benefits accruing to it by reason of the
opening of the street. We do not con-
cur in this view.
The assessment was by the front foot
and for a specific sum representing
such cost. and that sum could not have
been reduced under the ordinance OF
the village even If proof had been made
that the costs and expenses assessed
upon the AUDITING property exceeded