I agree to the conclusion reached in the opinion prepared by Mr. Justice THOMAS in the case at bar. The bill of complaint seeks to enforce a lien for improvements in the form of pavement of streets and sidewalks against the abutting property of the appellant situated in the City of Monticello, Florida. It is contended here that the costs of the special assessments are in excess of the increased value of the property by reason of the special benefits derived from the improvements.
The power to create such liens can or may have or possess the apparent authority to deprive an owner of his property without a hearing and the effect thereof is the taking of property without due process of law. If it can be shown in this case that the costs of special assessments exceed the increased value of the property by reason of the special benefits derived from the improvements, then the effect thereof is an arbitrary and unwarranted exercise of legislative power, or if it can be made to appear that there has been some action on the part of the legislative power in connection with the levy of the special assessments amounting to a denial of the equal protection of the law, then the courts are open to protect the constitutional rights of the property owner. See Atlantic Coast Line R. Co. v. Gainesville, 83 Fla. 275, 91 So. 118, 29 A.L.R. 668; Atlantic Coast Line v. City of Lakeland, 94 Fla. 347, *Page 703 115 So. 669; City of Fort Myers v. State, 95 Fla. 704, 117 So. 97; Town of Gulfport, etc., v. Mendels, 127 Fla. 730, 174 So. 8.
It is the settled law that special assessments can be sustained only upon the theory that property assessed receives some special benefit from the improvement differing from the benefit that the general public enjoys. If the foundation of the right to levy special assessments does not exist, this and other defenses supra can or may be interposed by an answer and evidence taken in support thereof. See vol. 5, McQuillin Municipal Corporation (2nd Ed.), pages 645-6, par. 2193.