Concurring.
The tracks of the railroad company, by permission granted or acquiesced in, as- a right-of-way easement, run longitudinally for nearly a mile along the center of a street of the' municipality. By previous regulations acquiesced in, the railroad company paid for paving the street covering the spaces between the rails of the railroad track and also two feet on each side of the rails.
By authority of a statute which purports to authorize for street paving purposes the proportionate assessment of the railroad tracks ! ‘ as property fronting or abutting upon each side of said street,” the municipality by ordinance assessed against the railroad company an amount equal to one-third of the remainder of the cost of the street paving in addition to the entire-cost of paving the space between the rails of the railroad track'and two feet on each side thereof. The railroad company declined to pay the additional assessment and a decree was rendered against it for an amount to cover the added assessment. On appeal the company invokes the contract, due process and equal protection provisions of the Federal Constitution.
Apparently the railroad tracks do not materially impair the use of the street by the public. .
There is nothing to indicate that the railroad company will directly or indirectly derive any benefit or advantage from the additional heavy assessment; and the added bur den does not conserve the public safety, health or morals, even if the assessment had been made for that purpose. Benefits to the company’s property rights cannot be assumed in view of the facts that appear. No benefits to the company to accrue from the additional burden is alleged.
*294The right of the defendant company to use the street for its railroad track is, within the limitations imposed by the paramount law for the protection of private rights, subject to the fair burdens resulting from the exercise of the sovereign police and assessment powers of the State, whether exerted directly by statute or indirectly through the medium of duly authorized action by the municipality. The exertion of the police power is subject to applicable limitations contained in the Federal and State Constitutions, • that are designed to secure private rights against an arbitrary, unduly oppressive or unjustly discriminating exercise of governmental authority. 5 R. C. L. 195; 19 R. C. L. 802. Where the police power is invoked to conserve the public peace, safety, health or morals, its exercise is not ordinarily controlled by considerations of correlative pecuniary burdens and benefits. When the governmental power is exerted to conserve the mere public convenience, comfort, improvement, progress or economy, its exercise should have some fair relation to mutual compensations or correlative property burdens and benefits; and when the power is exerted through legislative action, presumptions of its proper exercise may be indulged by the courts in the absence of facts and circumstances that repel presumptions. See Atlantic Coast Line R. Co. v. City of Goldsboro, North Carolina, 232 U. S. 548, 34 Sup. Ct. Rep. 364; State v. Jacksonville St. R. Co., 29 Fla. 590, 10 South. Rep. 590; Great Northern R. Co. v. Minnesota ex rel. Clara City, 246 U. S. 434, 62 L. Ed. 817, 38 Sup. Ct. Rep. 346; Northern P. R. Co. v. State of Minnesota ex rel. City of Duluth, 208 U. S. 583, 28 Sup. Ct. Rep. 341; Pacific Gas & E. Co. v. Police Court, 251 U. S. 22, 64 L. Ed. 112, 40 Sup. Ct. Rep. 79; Oklahoma R. Co. v. Severns Paving Co., 251 U. S. 104, 64 L. Ed. 168, 40 Sup. Ct. Rep. 73; Erie R. R. v. Board of Public Utilities Commrs., 254 U. S. 394, *29541 Sup. Ct. Rep. 169. Municipal regulations not specifically authorized by statute should be reasonable as well as constitutional. Curry v. Osborne, 76 Fla. 39, 79 South. Rep. 293; 19 R. C. L. 805. As to the scope of the State police power see Conger v. Pierce County, — Wash. -, 198 Pac. Rep. 377.
Even where public morals, health and safety are not involved, a wide latitude is allowed the legislature in making or authorizing assessments for public improvements with special benefits, where its action is not palpably unequal in results or unjustly discriminating and burdensome without any accruing benefits or is not arbitrary and wholly unwarranted. See Myles Salt Co. v. Board of Commrs. of Iberia & St. Mary Drainage Dist., 239 U. S. 478, 36 Sup. Ct. Rep. 204; Withnell v. Ruecking Construction Co., 249 U. S. 63, 63 L. Ed. 479, 39 Sup. Ct. Rep. 200; Branson v. Bush, 251 U. S. 182, 64 L. Ed. 215, 40 Sup. Ct. Rep. 113. The railroad company does not own the land in the center of the street on which its tracks are laid as in Oklahoma Ry. Co. v. Severns Paving Co., 251 U. S. 105, 64 L. Ed. 168, 40 Sup. Ct. Rep. 73. See also Louisville & N. R. Co. v. Barber Asphalt Pav. Co., 197 U. S. 430, 25 Sup. Ct. Rep. 466.
The specific assessment in this case is not for the privilege of using the street or to conserve the public morals, health or safety; and it is manifestly unjustly discrimi-' nating in its burdens. Under the particular facts, the greatly increased burden imposed upon the company, to pay for paving one-third of the remainder of the street in addition to the entire cost of paving the space between the rails of the railroad track and two feet on each side thereof, has no just relation to any special or general benefits of convenience or otherwise, that can result or accrue to the *296company from paving the street, and the assessment as made does not conform to • controlling provisions of or ■ ganic law. See 8 McQuillin’s Municipal Corporations, Suppl. Sec. 2043 and authorities cited; 4 Dillon’s Municipal Corp. (5th ed.) §1451 and notes with citations; Gast Realty & Improvement Co. v. Schneider Granite Co., 240 U. S. 55, 36 Sup. Ct. Rep. 254; Kansas City So. Ry. v. Road Imp. Dist. 6, 256, U. S. 658, 41 Sup. Ct. Rep. 604, decided June 6, 1921; 8 McQuillin’s Mun. Corp. §2050.
The assessment complained of was not made to facilitate access to trains or to afford safety from passing trains or locomotives; and no considerations of health or morals are involved. The power to tax for governmental purposes is not involved. The assessment being made for a public municipal purpose, but nor for purposes of governmental administration, nor for purposes to conserve the public safety, peace, health or morals, and as no appreciable property benefits can accrue to the company, the assessment is in effect a taking of property without compensation, in violation of organic law. See Village of Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. Rep. 187.