delivered the opinion of the Court.
April 29, 1935 (
After notice to the parties, the Supreme Court, with felicitous recognition of obligation to do nothing in conflict with the ruling here, again considered the original record. September 30, 1935, after disclaiming аny purpose theretofore to construe the pertinent state statutes as unhappily chosen words had led us to conclude, it announced their meaning and once more affirmed the deсree of the trial court. A second appeal gives us jurisdiction.
' Appellants insist, first, that the decree presently challenged is not consistent with our opinion and mandate; and, second, that, if the Gеorgia statutes be construed and applied as finally ruled by her Supreme Court, they will be deprived оf equal protection and due process of law, contrary to the Fourteenth Amendment.
As appears from our opinion of April 29, 1935, following long established doctrine, we accepted thе construction of the statutes placed upon them by the Supreme Court and decreed accordingly.
Elmendorf
v.
Taylor,
After the first decree was reversed and set aside., the cause went back for disposition by the Supreme Court. Our mandate restricted its powers in that regard so far as necessary to prevent conflict with rulings here, but not otherwise. Only federal questions were open for our determination. We aсcepted the construction placed upon the statutes by the Supreme Court and held that sо
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to apply them would deprive appellants of a federal right. We suggested no interpretation of our own, ,and did not affirmatively indicate the further action to be taken.
Schneider Granite Co.
v.
Gast Realty Co.,
In the circumstances disсlosed by the record, will appellants be deprived of the equal protection or due рrocess of law1, if the state statutes, as finally interpreted, are Applied to them?
,/Üp'on this point, counsel submit: — Under the statutes as construed, other parties would be subject to assessment by the municipality for the cost of paving only upon the basis of benefits; appellants would be liable without regard thereto. Street railways are entitled to the same constitutional protection accorded to others.' Also, that if thq special assessment was product of the police or taxing power, the utility was entitled to a judicial hearing in respect of its unreasonable or arbitrary еxercise.
Considering our declarations in
Durham Public Service Co.
v.
Durham,
The power оf the municipality to require a street railway to pave streets used by it, without regard to benefits, is clear enough.
Durham Public Service Co.
v.
Durham, supra; Southern Wisconsin Ry. Co.
v.
Madison,
“There is no question as to the regularity of the assessment under the general law of the State, and the charter of the city as amended, and the ordinances duly enacted thereunder. It has already been determined that the paving was done and that the assessment therefor was made in conformity to the law. Payment therefor is undertaken to be avoided by the pоwer company on the ground that the pavement was of no benefit to the company. It has been held by this court, in construing the law" of the State in reference to street paving and cost therеof, that a' street railway could not defend against the payment on the ground of no benefit.”
Appellants have failed to show deprivation .of any federal right through denial of opportunity to rely upon an adequate defense, properly advanced. We need not, therefore, consider the conclusions of the Supreme Court concerning an estoppel.
The questioned decree must be
Affirmed.