The majority are of the opinion that the motion for rehearing should be overruled; but I find myself unable to agree to such course. In the beginning it was with much hesitation that I came to the view expressed in our original opinion, and after a reconsideration, aided as we have been by the able and painstaking effort of appellants' counsel, my original doubts have not only increased, but I have become convinced that we erred in the conclusion announced on the main question In the case. Time and opportunity admit of but a brief presentation of my present view; but, as it now appears to me, we erred in giving controlling effect to the case of Hutcheson v. Storrie, 92 Tex. 685, 51 S.W. 848,45 L.R.A. 289, 71 Am. St. Rep. 884, and in not giving proper application of section 17 of our Bill of Rights, which provides, among other things, that: "No irrevocable or uncontrollable grant of special privileges or immunities shall be made; but all privileges and franchises granted by the Legislature, or created under its authority, shall be subject to the control thereof."
No such provision of our Constitution or law has application to a private owner of lots abutting on a street occupied by a street railway which the governing body of the city has determined to improve, and a distinction between the two classes of property should be made. As to the private owner, as held in Hutcheson v. Storrie, 92 Tex. 685, 51 S.W. 848,45 L.R.A. 289, 71 Am. St. Rep. 884, and as expressly provided in the chapter relating to the subject (R.S. c. 11, tit. 22), notice and opportunity for a hearing to determine the extent of the benefits to the owner must be extended. But neither that decision nor the statute is in terms made applicable to the owner of a street railway. The failure of the statute to so provide seems especially significant in view of the conceded fact that it was enacted after the decision in Hutcheson v. Storrie in order to conform therewith. It is hardly to be supposed that in so legislating the case of Storrie v. Houston City Street Ry. Co.,92 Tex. 129, 46 S.W. 796, 44 L.R.A. 716, in apparent conflict with Hutcheson v. Storrie, was wholly overlooked by our legislators. It also is not to be assumed that the decision in Storrie v. Houston City Street Ry. Co. was overlooked by the careful, able judge who wrote both opinions. Hence I now think the case of Hutcheson v. Storrie should be limited to the facts of that particular case (which was that of an abutting owner), as has been done in the case upon which it was founded. See French v. Barber Asphalt Co., 181 U.S. 324, 21 S. Ct. 625,45 L. Ed. 879, loc. cit. p. 890.
But, as to the Abilene Street Railway Company, I think the case of Storrie v. Houston City Street Ry. Co. should be applied to the facts alleged in this case. It is alleged that the special tax assessment now resisted was levied in strict accordance with chapter 11, tit. 22, of the Revised Statutes. The railway company is a public service corporation that exists and exercises its rights and privileges by virtue of the law alone. It accepted its franchises from the city of Abilene, and has continuously since then exercised its privileges with full knowledge that our Constitution expressly provided that it, and all like corporations, was subject to the control of the Legislature, thus, in effect, agreeing in advance to the imposition of such additional burdens as the Legislature might thereafter in its discretion impose. The Legislature in fact has declared a fixed rule, not unreasonable on its face, by which the special assessment under consideration was made; the Legislature in effect determining the question of benefits. The power to so do is very generally upheld by the authorities. See French v. Barber Asphalt Co., hereinbefore mentioned, and the numerous cases therein cited. Moreover, it does not appear, either by the petition in this case or from any answer, that the assessment under consideration is unreasonable, or that in the proceeding leading up thereto there was any irregularity, inequality, or other thing of which just complaint can be made. If there was, the statute itself provides the remedy. See chapter 11, art. 1015. So that I see no reason, either beneficial or available, for other or further notice of the assessment than was afforded by the enactment and publication of the legislative act and of the ordinance for the improvement. See Hagar v. Reclamation District, 111 U.S. 701,4 S. Ct. 663, 28 L. Ed. 569; Spencer v. Merchant, 125 U.S. 345,8 S. Ct. 921, 31 L. Ed. 763; Parsons v. Dist. of Columbia, 170 U.S. 45, 18 S. Ct. 521,42 L. Ed. 943. In brief, under the section of the Constitution quoted, I think special assessments as alleged in this case may be made, and that the law so authorizing as now written in no wise conflicts with the "due process" clauses of our state and federal Constitutions. On the contrary, these laws seem but to impose upon street railway companies using for profit public streets of a city, a just proportion of the burden necessarily incurred in improving and safeguarding such streets for the benefit of all. I conclude that the court erred in sustaining appellee's general demurrer, and that the motion for rehearing should be granted, and that the cause should be remanded for a trial upon the merits. See the following cases, which are thought to support the foregoing conclusions: Storrie v. Houston City Street Ry. Co., 92 Tex. 129,46 S.W. 796, *Page 438 44 L.R.A. 716; Sioux City Street Ry. Co. v. Sioux City, 138 U.S. 98,11 S. Ct. 226, 34 L. Ed. 899; Kettle v. City of Dallas,35 Tex. Civ. App. 632, 80 S.W. 874; Fairhaven Street Ry. Co. v. City of New Haven, 203 U.S. 379,27 S. Ct. 74, 51 L. Ed. 237; Eldredge v. Trezevant, 160 U.S. 452,16 S. Ct. 345, 40 L. Ed. 490; West Chicago Street Ry. Co. v. Illinois,201 U.S. 506, 26 S. Ct. 518, 50 L. Ed. 845; C., B. Q. Ry. v. Illinois, 200 U.S. 561, 26 S. Ct. 341, 50 L. Ed. 596, 4 Ann.Cas. 1175; Const. of Texas, art. 1, § 17; Revised Statutes 1911, c. 11, arts. 1006 to 1017, inclusive.
In accordance with the conclusion of the majority, however, it is ordered that the motion for rehearing be overruled.