In determining whether an improvement does or does not benefit
property within the assessment district, the land should be
considered simply in it general relations, and apart from its
particular use at the time, and an assessment, otherwise legal, for
grading, paving, and curbing an adjoining street is not void under
the Fourteenth Amendment because the lot is not benefited by the
improvement owing to its present particular use.
A system of delusive exactness should not be extracted from the
very general language of the Fourteenth Amendment in order to
destroy methods of taxation which were well known when the
amendment was adopted, and which no one then supposed would be
The facts are stated in the opinion.
Page 197 U. S. 432
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a proceeding under the Kentucky Statutes, § 2834, to
enforce a lien upon a lot adjoining a part of Frankfort Avenue, in
Louisville, for grading, curbing, and paving with asphalt the
carriage way of that part of the avenue. The defendant, the
plaintiff in error, pleaded that its only interest in the lot was a
right of way for its main roadbed, and that neither the right of
way nor the lot would or could get any benefit from the
improvement, but, on the contrary, rather would be hurt by the
increase of travel close to the defendant's tracks. On this ground,
it set up that any special assessment would deny to it the equal
protection of the laws, contrary to the Fourteenth Amendment of the
Constitution of the United States. It did not object to the absence
of the parties' having any reversionary interest, but defended
against any special assessment on the lot. The answer was demurred
to, judgment was rendered for the plaintiff, and this judgment was
affirmed by the Kentucky Court of Appeals. 76 S.W. 1097. A writ of
error was taken out, and the case was brought to this Court. It
will be noticed that the case concerns only grading, curbing, and
paving, and what we shall have to say is confined to a case of that
The State of Kentucky created this lien by a statute entitled
"An Act for the government of Cities of the First Class."
Louisville is the only city of the first class at present in
Kentucky, and the general principles of the act are taken verbatim
from the part of the charter of Louisville which was considered and
upheld by this Court in Walston v. Nevin, 128 U.
. But we take the statute as a general prospective
law, and not as a legislative adjudication concerning a particular
place and a particular plan, such as may have existed in
Spencer v. Merchant, 125 U. S. 345
as was thought to exist in Smith
Page 197 U. S. 433
182 Mass. 232, referred to at the
The law provides, in the case of original construction, such as
this improvement was, that it shall be made at the exclusive cost
of the adjoining owners, to be equally apportioned according to the
number of feet owned by them. In the case of a square or
subdivision of land bounded by principal streets, which the land
including the defendant's lot was held to be, see Cooper v.
90 Ky. 85; Nevin v. Roach,
86 Ky. 492, 499,
the land is assessed half way back from the improvement to the next
street. Acts of 1898, c. 48; Ky.Stat. § 2833. A lien is imposed
upon the land, and "the general council, or the courts in which
suits may be pending, shall make all corrections, rules, and orders
to do justice to all parties concerned." Section 2834. The
principle of this mode of taxation seems to have been familiar in
Kentucky for the better part of a hundred years. Lexington v.
9 Dana 513.
The argument for the plaintiff in error oscillates somewhat
between the objections to the statute and the more specific grounds
for contending that it cannot be applied constitutionally to the
present case. So far as the former are concerned, they are disposed
of by the decisions of this Court. There is a look of logic when it
is said that special assessments are founded on special benefits,
and that a law which makes it possible to assess beyond the amount
of the special benefit attempts to rise above its source. But that
mode of argument assumes an exactness in the premises which does
not exist. The foundation of this familiar form of taxation is a
question of theory. The amount of benefit which an improvement will
confer upon particular land -- indeed, whether it is a benefit at
all -- is a matter of forecast and estimate. In its general
aspects, at least, it is peculiarly a thing to be decided by those
who make the law. The result of the supposed constitutional
principle is simply to shift the burden to a somewhat large taxing
district -- the municipality -- and to disguise, rather than to
answer, the theoretic
Page 197 U. S. 434
doubt. It is dangerous to tie down legislatures too closely by
judicial constructions not necessarily arising from the words of
the Constitution. Particularly, as was intimated in Spencer v.
Merchant, 125 U. S. 345
is important for this Court to avoid extraction from the very
general language of the Fourteenth Amendment a system of delusive
exactness in order to destroy methods of taxation which were well
known when that amendment was adopted, and which it is safe to say
that no one then supposed would be disturbed. It now is established
beyond permissible controversy that laws like the one before us are
not contrary to the Constitution of the United States. Walston
v. Nevin, 128 U. S. 578
French v. Barber Asphalt Paving Co., 181 U.
; Webster v. Fargo, 181 U.
; Cass Farm Co. v. Detroit, 181 U.
; Detroit v. Parker, 181 U.
; Chadwick v. Kelley, 187 U.
, 187 U. S.
-544; Schaefer v. Werling, 188 U.
; Seattle v. Kelleher, 195 U.
, 195 U. S.
A statute like the present manifestly might lead to the
assessment of a particular lot for a sum larger than the value of
the benefits to that lot. The whole cost of the improvement is
distributed in proportion to area, and a particular area might
receive no benefits at all -- at least if its present and probable
use be taken into account. If that possibility does not invalidate
the act, it would be surprising if the corresponding fact should
invalidate an assessment. Upholding the act as embodying a
principle generally fair, and doing as nearly equal justice as can
be expected, seems to import that, 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.
And this has been the implication of the cases. Davidson v. New
Orleans, 96 U. S. 97
96 U. S. 106
Mattingly v. District of Columbia, 97 U. S.
, 97 U. S. 692
Parsons v. District of Columbia, 170 U. S.
, 170 U. S. 52
170 U. S. 55
Detroit v. Parker, 181 U. S. 399
181 U. S. 400
Chadwick v. Kelley, 187 U. S. 540
187 U. S.
But, in this case, it is not necessary to stop with these
general considerations. The plea plainly means that the
Page 197 U. S. 435
will not benefit the lot, because the lot is occupied for
railroad purposes, and will continue so to be occupied. Compare
Chicago, Burlington & Quincy R. Co. v. Chicago,
166 U. S. 226
166 U. S.
-258. That, apart from the specific use to which this
land is devoted, land in a good-sized city generally will get a
benefit from having the streets about it paved, and that this
benefit generally will be more than the cost, are propositions
which, as we already have implied, a legislature is warranted in
adopting. But, if so, we are of opinion that the legislature is
warranted in going one step further and saying that, on the
question of benefit or no benefit, the land shall be considered
simply in its general relations, and apart from its particular use.
See Illinois Central R. Co. v. Decatur, 147 U.
. On the question of benefits, the present use is
simply a prognostic, and the plea of prophecy. If an occupant could
not escape by professing his desire for solitude and silence, the
legislature may make a similar desire fortified by structures
equally ineffective. It may say that it is enough that the land
could be turned to purposes for which the paving would increase its
value. Indeed, it is apparent that the prophecy in the answer
cannot be regarded as absolute, even while the present use of the
land continues, for no one can say that changes might not make a
station desirable at this point, in which case the advantages of a
paved street could not be denied. We are not called on to say that
we think the assessment fair. But we are compelled to declare that
it does not go beyond the bounds set by the Fourteenth Amendment of
the Constitution of the United States.
MR. JUSTICE HARLAN, not having been present at the argument,
took no part in the decision.
MR. JUSTICE WHITE and MR. JUSTICE PECKHAM dissent.