dissenting.
I think the judgment should be affirmed.
The question is one of state power. Since the Constitution does not deny to the local authorities power to require the paving of appellants’ right of way, as a police measure regulating the use of the public streets, see Durham Public Service Co. v. Durham, 261 U. S. 149; Fort Smith Light Co. v. Paving District, 274 U. S. 387, it would seem that the mere fact that the state court justified the exercise of the power on different or even untenable grounds would not present to us any substantial federal question.
*172In any case, the examination of the record makes it plain that the question considered in the opinion of this Court is unsubstantial. Appellant Georgia Power Company, which has taken over the rights and obligations of the other appellants, has a single franchise to supply electric power and to operate a street car line in Decatur and elsewhere, and is subject to a contract requiring it to maintain a five cent fare on its railway. See Georgia Ry. Co. v. Decatur, 262 U. S. 432; Georgia Power Co. v. Decatur, 281 U. S. 505. In an attempt to establish the arbitrary character of the assessment, appellant offered to prove that the railway could not operate its line in Decatur profitably under its contract for a five cent fare, and that it stood ready to surrender the franchise and discontinue operation. It further offered to show that no benefits were received by the Power Company or by any of its property as a result of the improvement. This general offer was explained and made specific by the proffered testimony of a witness, rejected as immaterial, that the pavement “ added not one cent to the value of the street railway property at all.” “ On the contrary,” in his opinion, “it was a detriment to the street railway operations.” Traffic was not increased thereby. Indeed, the pavement would increase the labor and expense of keeping the track in good condition. While the five cent fare continued, the company would be unable to earn the cost of operation. Neither on the argument in this court nor, so far as appears, in any of the courts of Georgia, did the company suggest that it had additional or more persuasive evidence to offer.
Our decisions make it abundantly plain that this evidence, if received, could have no tendency to overcome the presumptive correctness of the legislative finding of benefit. A property owner does not establish want of assessable benefits by showing that a particular public improvement does not aid or facilitate the particular use *173which he makes of the land, Miller & Lux v. Sacramento Drainage District, 256 U. S. 129; Houck v. Little River Drainage District, 239 U. S. 254, 264; Valley Farms Co. v. Westchester County, 261 U. S. 155, or demonstrate that the assessment is confiscatory by showing that the use which he makes of the land is unprofitable, Durham Public Service Co. v. Durham, supra, 153-155; Fort Smith Light Co. v. Paving District, supra, 390. The earning capacity of the property would seem especially irrelevant where the profit has been limited by the taxpayer’s contract, whether entered into improvidently or to gain some collateral advantage.
The offer to surrender the unprofitable street railway, while retaining the profitable electric business, which in this case the Supreme Court of the State ruled were parts of an indivisible franchise, was rightly disregarded as without probative force. The Power Company could not, without the consent of the city, surrender the unprofitable part of its franchise and retain the profitable part. Broad River Power Co. v. South Carolina, 281 U. S. 537, 543, 544. The city could not accept the offer without abrogating its contract. Neither the offer nor the refusal to accept it is evidence that the improvement was not of public benefit, which inured to the appellant as a property owner.
The Supreme Court of Georgia did not question the appellant’s right to rebut the presumption of validity by evidence reasonably indicative of arbitrary action. On the contrary, it expressly recognized that right in its opinion in this case, 179 Ga. 471; 176 S. E. 494, as well as in an earlier opinion from which it quoted, Georgia Power Co. v. Decatur, 170 Ga. 699; 154 S. E. 268. The Court did no more than to hold that, treating the proffered testimony as accepted rather than rejected, it was insufficient to establish any inference of arbitrary oppression. Compare Branson v. Bush, 251 U. S. 182, 190, 191; Mt. St. *174Mary’s Cemetery Assn. v. Mullins, 248 U. S. 501; Embree v. Kansas City Road District, 240 U. S. 242. For that reason the testimony was correctly held to be “immaterial,” and the error, if any, “harmless.”
A street must be properly paved, for the safety and convenience of travelers, as well as for the good of abutting owners. A resolution of the city authorities that a new pavement has become necessary, and assessing the cost according to an estimate of benefits, is not to be undone because the railway is of the opinion that for the operation of its business the old pavement is good enough.
Me. Justice Beandeis and Me. Justice Caedozo join in this opinion.