District of Columbia v. Armes, 8 App. D.C. 393

8 App. D.C. 393 | D.C. | 1896

Lead Opinion

Mr. Justice Shepakd

delivered the opinion-of the Court:

1. The first question for decision arises under the eleventh section of the act which provides the manner of the assessment of damages where a part only of the owner's tract shall be taken. The jury are therein directed, in assessing the damages for the part taken, to consider also the benefit that " the purpose for which it is taken ” may be to the owner by enhancing the value of the remainder.

In the recent case of Md. & W. R. R. Co. v. Hiller, ante, p. 289, which was a case of the condemnation of land for the use of a private corporation, we were compelled to give interpretation to the last clause of the Fifth Amendment: “ Nor shall private property be taken for public use without ■just compensation." And the majority of- the court were of the opinion that this “just compensation ” means the actual value of the property taken, payable in money and without diminution on account of benefits general or special. In respect, however, of a claim for damages done to the adjacent land, not actually taken, special benefits are to be considered.

The same rule must necessarily apply where the appn> priation is for the use of the Government. There is no ground for distinction. However, it must be admitted, as pointed out in the case before referred to, that there is, in some material respects, a difference between the effect of condemnation of land for a railroad and for a public highway or street. In the former, the use of the taker is. practically exclusive, whilst in the latter case, the owner, as one of the public, has the enjoyment of all the uses of the thoroughfare, and has, besides, a special easement, or property, therein, for the subsequent deprivation of which, under certain circumstances, he may also be entitled to compensation: Whatever weight these considerations may be entitled to, they were not provided for in the Fifth Amendment as they have been in some of the later State constitutions ; and whilst Congress muy liberalize' or ■ extend the. benefits of special compensation to the landowner, it cannot restrict the operation of the words of the Constitution intended for his protection.

The difference between the effect of taking for a quasi public and a distinctively public use, we venture to suggest, accounts for- the doctrine of some of the decisions wherein, als it seems to us, the exercise of the sovereign' power of taxation, that may include the assessment of special benefits to pay or assist in paying for streets and their improvement when taken, has been confounded with the separate and distinct right of eminent domain.

Both these powers are sought to be exercised in the statute under consideration. Section 15, which provides for the assessment of part of the cost of the_ land upon the property in the neighborhood receiving benefits from the opening of the street or streets, will be matter of special consideration later.

Section iT, which regulates the condemnation, provides that the valué of the part taken from an owner may be reduced by the -benefits which may accrue to his remaining' lánd. Where these benefits are found to equal or to exceéd the value of the part taken, there is nothing left for which to ássess the neighboring lands under section 15. The' whole burden falls upon the one land owner, notwithstanding the lands of others may receive benefits of the same kind to an equal or less extent. If the compensation, or ‘ ‘ damages,” as we think it is misnamed in the act, exceed the benefits, then the owner may be further assessed in proportion with others to make oip the amount thereof, under the provisions of section 15. It is true that by special provision, of that section the jury is required to make “ due allowance for the amount, if any, -which shall have been deducted from the value of the part taken on account of the benefit to the remainder of.the tract.” Exactly what this “due allowance ” may mean is unimportant, •• In its broadest application it is eminently just; but it is given as an act of grace,, and it is not the compulsory recognition of a right.' If the-power to consider these benefits exists in the award of just compensation in the exercise of the right of eminent domain, it is dependent upon nothing else.

Payment of the surplus may be made from the public revenues, or in part from a fund provided by special assessments upon all neighboring lands that are benefited by the improvement, in the discretion of Congress. • This power of special assessment may be made to operate concurrently w'ith the other, or it may follow it or be called into existence by a later independent act; and in case of its exercise, there would seem to be no way in which, save by legislative favor, the owner could secure exemption from double assessment.

Granting the power to assess the costs of the improvement against lands benefited thereby, then if the provision requiring credit to the owner of the land taken for benefits assessed against him under section i x had been omitted therefrom, it could hardly be rendered invalid thereby.

The plea of double assessment would be met with the answer that the first one was made, not as an assessment of a tax, but under the separate and distinct provision of the Fifth Amendment, regulating compensation for lands taken for public use.

Had the power to assess and set off benefits been excluded from section 11, or had section 15 been amalgamated therewith and the owner of the land taken merely included with other neighboring land owners in an assessment, in proportion to benefits, for the purpose of raising a fund to aid in paying the cost of the improvement, the foregoing objection might probably have been obviated; because, whilst the two proceedings would be had together, the assessment and payment of compensation, on the one hand, and the assessment of the cost of the public improvement, on the other, would have been separate and distinct operations.

Referring to the case of Md. & W. R. R. Co. v. Hiller, supra, where the reasons for the interpretation given the language of the Fifth Amendment limiting the exercise of the right of eminent domain are .set forth, our conclusion is, that so much, at least, of section 11 as provides for the diminution of the just compensation for the value of the land taken to the extent of benefits accruing to the remainder, is beyond the power of Congress, and therefore void.

It does not follow, however, that the whole section shall be declared void and stricken from the bill because of the attempt to exercise a power that Congress does not possess; for, as if in recognition of a doubt as to its possession of such power, it is further provided that the assessments of value and of benefits should be separately made and returned by the jury. Although the word “may’’ is used in that provision, and not must or shall, we think the context authorizes it to be regarded as imperative rather than permissive only.

In Md. & W. R. R. Co. v. Hiller, supra, the trial court, without any direction upon the point in the law, required the jury to make a separate assessment; and upon return of the verdict, ignored the assessment of benefits and entered judgment for the value as found; and that judgment we affirmed. We see no reason, therefore, why the remainder of the section may not stand, with the whole provision as to benefits stricken out. It is plainly severable therefrom. Huntington v. Worthen, 120 U. S. 97, 102.

2. Notwithstanding the criticism contained in the opinion of the majority of the court in the recent case of Craighill v. Van Riswick, ante, p. 185, of the doctrine that special assessments for benefits received may be made in aid of public improvements, it was conceded that it had been established by the great weight of judicial decision in this country, as well as recognized to exist by the Supreme Court of the United States.

• In that case, too, a marked difference was referred to as existing between assessments for the creation of public pleasure grounds and for the improvement of streets, building sewers, etc. As was said by Mr. Justice Morris ;

“ The theory has its limitations and restrictions, as has the power of general taxation; and .we think that it- will, be found, upon a closer analysis of the authorities., at all events of the best authorities upon the subject, that the theory has been applied only when some easement or appurtenance has been added to the lands of the person assessed, or when some advantage has been given him which he did not possess before, such generally as the improvement of a street for access to his property, or the construction of a sewer for the drainage of‘his land, dr some similar work which he could, and should have done for himself, if it were not thát such work by a private individual, for obvious reasons, would be impracticable.”

Some of those special easements and rights of property in tire streets, involved in this proceeding, have been mentioned heretofore.

In so far as the general .principle of the assessment established by section 15 of this act is concerned, there can be no substantial objection. It is fair, liberal and regular. One-half only of the cost, and that payable in five annual instalments, is to be assessed against the property found to be benefited by the improvement, in proportion to the benefits by each tract received. The benefits are not apportioned by an arbitrary rule of frontage, area or neighborhood ; but are to be ascertained by a jury under the direction and supervision of a competent court, with the same right of appeal as in other cases.

Any mode of arriving at the assessment of benefits, however, must to a certain extent be. arbitrary, uncertain and unequal in operation ; but these difficulties are inherent, and'though furnishing strong reasons against the adoption of any such system of taxation, have not as yet been permitted to stand in its way.

The difficulty with section 15, in these respects, is not in the general principle of the assessment, but in giving it certain and effective operation in connection with other provisions of the act. • For this reason, chiefly, the . learned justice who tried the case set aside the verdict and declared the law inoperative and void. As was said in his opinion: “ If-we suppose a spacious avenue to be run through a half-dozen subdivisions from the boundary of the city to the boundary of the District, it is evident that the part of the avenue nearest the city is just as certainly, though perhaps not in the same degree, beneficial to the most remote as to the nearest subdivision, because it is equally essential to it and forms a part of its means of convenient access to the city ; and the benefit of such a highway is not confined to . the ground immediately abutting upon - it, but extends laterally to. all the property to which • it adds a convenient access to the city. In fact it diffuses itself in every direction until it imperceptibly, disappears like the ripples in a stream caused by'a stone thrown into it. But if a jury are to assess all the property so benefited they must first know .the whole amount of damages to be awarded for all the property taken for the supposed highway in order that a •single assessment for benefits may be made. In order to do this it would be necessary for- the same jury to assess the damages in all the subdivisions affected by the highway in question, and for all assessments to be suspended until this work is completed.”

The act does not contemplate the immediate opening up -of all the streets provided for in the map; but that it shall be done first in the old subdivisions separately, and then in the outlying portions, from time to time. Section 6 seems to contemplate an immediate but separate proceeding to condemn, against the property in each of the subdivisions, and that course has been pursued by the commissioners. Section 7, on the other hand, defers the condemnation of streets and avenues in other portions of the District contained in the map, and outside of existing subdivisions, until such time as, in their judgment, public convenience shall require,'and this exercise of discretion is made subject to review by the court. These requirements seem to have heen ignored in section 15, which seems to contemplate an award of benefits on all lands benefited by opening up any particular highway. So, as said by Mr. Justice Cox: “ If the jury were to consider what property outside of the subdivision would be benefited by so much of the new high* way as lies within that subdivision and assess it accordingly, another jury, in passing upon an adjacent subdivision might in return assess benefits anew upon the lots in this subdivision, and thus the assessment of different juries might overlap and be doubled upon the unfortunate lot holder.” In the same way assessments might be further made to overlap in the later opening of a street to the District boundary..

The other sections of the act show that Congress regarded it as unwise to open a street to the District line sooner than the public convenience shall demand ; whereas, it was considered important to at once rectify the existing subdivisions and conform them to the general plan. These were partly built upon and would probably be further incumbered by improvements, with a probable rapid increase of values and consequential damages to be compensated for.

In our opinion, section 15 is inoperative by failure to conform to the necessary operation of sections 6 and 7. To accomplish the object of speedy condemnation and rectification of streets in localities where important, some provision' should have been made for the creation of definite taxing districts, including one or several subdivisions and sections adjacent, where it might appear to be expedient and just, so that the work of condemnation, laying off, and assessment of expenses of streets could take place promptly without complication with others.

Another defect is that the assessments, when confirmed by the court, shall bear interest from date of such confirmation, notwithstanding the fact that Congress may not accept them, if at all, for a year, possibly, under the provisions-of section 18.

3. That Congress has made no appropriation for the immediate payment of the compensation that may be assessed does not render the act invalid. That it had the right to authorize-the commissioners to withdraw, after judgment rendered in a similar proceeding where the money had been appropriated in advance, has been decided. Ross v. United States, ex rel. Prospect Hill Cemetery, ante, p. 32.

Here no appropriation is made; but it is declared that in case-it is not made “within the period of six.months, Congress being in session for that time after such award, or for the period of six months after the meeting of the next session of Congress, the proceeding shall be void and the land shall revert to the owner.’’

The last words aré meaningless, for the title cannot pass out oí the owner until payment made or security provided for. Sweet v. Rechel, 159 U. S. 380, 401, 404. Besides, the first clause of the section prohibits the possession of the commissioners for the District until the appropriation shall have been made and the money actually paid.

It is a serious inconvenience, and may, in some instances, result in injury to the private owner, that he may have to remain in suspense awaiting the appropriation by Congress ; but this is an incident of the exercise of the power that cannot be wholly avoided, and against which there is no remedy, provided it be not prolonged for an unreasonable period. Shoemaker v. United States, 147 U. S. 282, 321.

The same practical injury may follow the institution of proceedings by a private corporation as the result of protracted litigation; though, in such case, the land owner would probably have a right of action for actual damages against the corporation in the event of its withdrawal therefrom.

4. The next proposition urged in support of the judgment is, that if the invalidity of either of sections 11 and 15, or both, be established, the act, as a whole, becomes inoperative, and must therefore be declared void.

We cannot agree to this contention. The controlling object of the act evidently is to provide a uniform plan for the extension of the streets and avenues of the city of .Washington throughout the District of Columbia, and to rectify all existing subdivisions and bring them into conformity therewith. Ross v. Goodfellow, 7 App. D. C. 1.

Even if the whole of section 11 had been declared'.-void the general object of the act would not be impaired; though important to the public interest in giving immediate effect to the*operation of the act in the existing subdivisions, it might have been omitted along with its attendant provisions, without detriment to the general object to be accomplished.

• What has -been said of section 11 applies with greater reason to section 15, which has been declared invalid. That section might well have been omitted altogether. It is but one of the modes in which the property condemned may be in part paid for. If in fact the policy of assessing benefits in order to pay for the opening of streets is to be generally pursued, it would be more nearly just, as well as conducive to certainty of ascertainment, if the assessment should be made to follow upon the actual condemnation and opening of the street through a definite territory.

“It is only when different clauses of an act are so dependent upon each other that it is evident the legislature would not have enacted one of them without the other — as when the two things provided are necessary parts of one system— that the whole act will fall with the invalidity of one clause. When there is no such connection and dependency the act will stand, though different parts of it are rejected.” Huntington v. Worthen, 120 U. S. 102; Packet Co. v. Keokuk, 95 U. S. 80, 89; Poindexter v. Greenhow, 114 U. S. 270; Reagan v. Farmers L. & T Co., 154 U. S. 362, 395.

5. The next and last objection taken to the act, as a whole, is that the record of the maps provided for therein amounts to a taking of the land, in the sense that it interferes with the enjoyment thereof by the owners to an injurious extent, beyond the power of Congress, without a provision for compensation. This question, though not decided, was to some extent considered in Ross v. Goodfellow, supra, where some of the- probable inconveniences of the act were alluded to.

That the act is not an unauthorized encroachment upon the rights of the. land owners is, we think, settled by the principles enounced by the- Supreme Court of the United States in the following cases : Shoemaker v. United States, 147 U. S. 282, 321; Prosser v. North. Pac. R. Co., 152 U. S. 59, 63, 65.

Similar statutes are quite common througiiout the States of. the Union, and have generally, if not universally, been upheld as valid exercises of legislátive power. District of City of Pittsburg, 2 W. & S. 320; Moale v. Baltimore, 5 Md. 322; Steuart v. Baltimore, 7 Md. 508; Foster v. Scott, 136 N. Y. 575, 577.

The question whether the public necessity or interest intended to be subserved by the act so far exceeds its inconveniences to the individuals as to justify its enactment, was one for the determination of Congress. •

Whilst we concur with the learned trial, justice in his refusal to enter judgment in accordance with the verdict, we think that he went too far in declaring the whole act inoperative and void and dismissing the petition.

The judgment will therefore' be reversed, and the canse remanded, with'direction to modify the judgment in so far as lit dismisses the■ petition, and to reinstate the cause'for further proceeding therein not inconsistent with this opinion. The costs incurred, on this appeal by the parties respectively will be paidhy them. It is to ordered.

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Concurrence in Part

Mr. Chief justice. Alvey

filed an opinion dissenting in pari: from,- and -concurring in part with, the opinion 0/ the majority ©£ the court, as follows: 1

T|hs proceeding'was instituted under section 6 of the act of Congress of the ?,d -of March, ■ 1893. entitled'An act to provide a permanent system .of highways in that part of the District of Columbia lying outside of cities,” for the purpose of having condemned permanent rights of way for the public pver all. the. land lying within the limits of a certain .existing subdivision in section i of the plan for the extension of a permanent system of highways in this District, as provided for and directed by said act.

The plan for extension of this section i has been made and recorded in pursuance of the statute; and proceedings for condemnation and assessments were instituted and carried on to the extent of the findings by the jury under the direction of the court. But, at this stage of the proceeding, exceptions were taken to the proceedings, presenting questions as to the constitutionality of the statute, and as to the power of the court to proceed thereunder. These exceptions were sustained by the court, and the entire statute, and all the proceedings had thereunder, were declared null and void, and the proceedings for condemnation and assessments .were dismissed.

The grounds for this decision arc supposed to be apparent in the eleventh and fifteenth sections of the statute. There is certainly no sufficient ground for contending that any of the other sections and provisions of the act are amenable to constitutional objection. ' The most that can be urged against some of them is, that they may give rise to difficulties in their practical application. But this grows out of tire nature and peculiar circumstances of the subject-matter of the act, and not out of any constitutional prohibition applicable to the case.

Section 11 of the act provides •* that where the use of a part only of any parcel or tract of land shall be condemned in such a proceeding, the jury in assessing the damages therefor shall take into consideration the benefit the purpose for which it is taken may be to the owner or owners of such tract or parcel by enhancing the value of the remainder of the same, and shall give their verdict accordingly, and the court may require in such case that the damages and the benefits shall be found and stated separately.”

By section i 5 it is provided, “ that the amount awarded by said court as damages for each highway or reservation, or part thereof, condemned and established under this act, shall be one-half assessed against the land benefited thereby,. and the other half shall be charged up to the revenues of the District of Columbia; that one-half of the amount awarded by said court as damages for each highway or reservation, or part thereof, condemned and established under this act, shall be charged upon the lands benefited by the laying out and opening of such highway or reservation, or part thereof, and the remainder of said amount shall be charged to the revenues of the District of Columbia. The same jury which shall assess the damages caused by the opening of any highway or reservation, or part thereof, or by the abandonment of any existing highway, or part thereof, shall ascertain and determine what property is thereby benefited, and shall assess against each parcel which it shall find to be so benefited its proper proportional part of the whole of said one-half of the damages : Provided, that in making such assessments for benefits the jury shall, as to any tract a part of which shall have been taken for such highway or reservation, or part thereof, make due allowance ■for the amount, if any, which shall have been deducted from the value of the part taken on account of the benefit to the remainder of the tract." The section then provides, that when the assessment so made shall have been confirmed by the court, it shall be a lien upon the land assessed, and shall be collected as special improvement taxes in this District have been collected since February 21, 1871, and shall be payable in five equal annual instal-ments, with interest at the rate of four per cent, per annum from the date of the confirmation of the assessment by the court. This section further provides, that none of the expense for the improvements contemplated by the act shall be chargeable to the Treasury of the United States, but such expense shall be paid solely out of the revenues of the District of Columbia.” It is then provided, by section 16 of the act, “ that when said court shall have assessed the damages to be paid as to any parcel, of land, the use of which shall have been condemned, or which shall have been injured by the abandonment of a previously existing highway, and there shall be no controversy as to the persons who are entitled to receive the same or as to the distribution of the same among them, said court shall decree such payment to be made, and upon presentation of a duly certified copy of such decree to the Treasurer of.the United States, he shall report the same to Congress for consideration and action, and. shall make such payment to the person or persons appearing by such decree to be entitled thereto, as Congress may provide.” And by section 18 it is provided, “that whenever any final decree shall have been made by the court under the provisions of this act for the payment of the damages to the parties, or into the registry of the court, and when the money has been appropriated and paid, the commissioners shall be entitled to take immediate possession of the parcel of land in regard to which said-order of payment shall have been made, and the court shall enforce such right of possession, by proper order and by process addressed to the marshal of. the United States for the .District of Columbia. ' In case the court shall enter judgment of condemnation in any case, and appropriation is not made by Congress for the payment of such award within the period of six months, Congress being in session for that time after such award, or for the period of six months after the meeting of the next session of Congress, the proceedings shall be void, and the land shall revert to the owners.” That is to say, the condemnation proceedings shall be void, and the land remain as if it had never been condemned. The owner, therefore, is not to be, and, indeed, could not be, deprived of his land until compensation therefor is actually made, and if such compensation be not made within the reasonable time fixed by the statute, the condemnation proceedings are to be treated as wholly’without .effect.

I. The first question to be considered is, what will constitute just compensation for private property taken for public use, to gratify the requirement of the Fifth Amendment to the Constitution of the United States ? This question is raised by the eleventh section of the act under consideration, which provides that where the use of pniy a part of any parcel or tract of land is' taken for the improvement proposed, the benefit, if any, that may accrue therefrom to the remaining part, by which its value may be enhanced, • shall be taken into consideration and allowed for in estimating the amount of just compensation for the part, taken. This would seem to be fair and just, and is certainly supported by the great preponderance of authority in this country. Indeed, this is conceded by the learned justice •below, upon the authority of Cooley on Constitutional Limitations. page 700, and Dillon on Municipal Corporations, sec. 625. The property is taken for public use by virtue of the power of the eminent domain ; and the question is, whether the owner of the land taken can exact full compensation therefor in money, co nomine, irrespective of-any and all special benefits conferred upon the remaining part of the tract or parcel of land left to him, by the use of the part appropriated by the public ?

The learned justice below, while conceding the existence .of the general principle by which benefits may be assessed, yet concluded that there was such difficulty in ascertaining the benefits with certainty and precision, and such uncertainty as to the time when such benefits would actually accrue to the remaining parts, that the provision for assessing such special benefits was null and void, and could not, therefore, be enforced. If this be the true construction, it necessarily strikes from the act the entire section 11, and leaves no provision for assessing special benefits as'means of compensation. But I do not think such construction ought to be adopted. Every reasonable intendment should be indulged in order to maintain the act in its entirety, and if there be any reasonable mode of construction by which the entire act, and every provision thereof, may be sustained. as against a mere, plausible construction tending to a contrary result, the former mode of construction must-prevail. It is only when no other reasonable construction can be supported, that an act of Congress, or any part of it, can be declared to be unconstitutional and void, or invalid for any cause.

It has been very earnestly and strongly argued by counsel for the appellees that it is in contravention of the constitutional rights of the parties to allow the special benefits to the remaining parts of their lands to be taken into consideration in estimating just compensation for the parts taken ; and many authorities have been cited in support of their contention. But the great weight of authority is against the contention ; and it is only in deference to the arguments so earnestly pressed upon' the court, that I think it proper to refer to some of the most generally accepted authorities upon the subject.

It is certainly true, as contended by counsel, that what will constitute just compensation for the land taken is a question for the courts, and not for the legislature, to determine. The constitutional requirement of just compensation to be made, excludes the power to take into account, as an element of such compensation, any supposed benefit that the owner of the land may receive in common with the other members of the same community, from the proposed improvement; but he is entitled, as against the public for whose use his property is taken, to receive a full and exact equivalent for the land taken from him, and that is just compensation. It is, indeed, for the legislature to determine what private property may be needed, and when it shall be taken for public use ; those being questions, as said by the Supreme Court of the United States, of a political and legislative character; but when the taking is authorized, then the question of compensation is judicial. “It does not rest with the public, taking the property through Congress or the legislature, to say what compensation shall be paid, or even what shall be the rule of compensation. The Constitution has declared that just compensation shall be paid, and the ascertainment of that is a judical inquiry.” Monongahela Nav. Co. v. United States, 148 U. S. 327.

The principle by virtue of which the benefits and the injuries to the remaining part may be considered in estimating the just compensation for the part taken, is very clearly stated and illustrated by Mr. Justice Cooley, in his valuable work on Constitutional Limitations, at page 697, 6th edition. He there says: “ When, however, only a portion of a parcel of land is appropriated, just compensation may, perhaps, depend upon the effect which the appropriation may have on the owner’s interest in the remainder, to increase or diminish its value, in consequence of the use to which that taken is to be devoted, or in consequence of the condition in which it may leave the remainder in respect to convenience of use. If, for instance, a public way is laid out through a tract of land which before was not accessible, and if in consequence it is given a front, or two fronts, upon the street, which furnish valuable and marketable sites for building lots, it may be that the value of that which remains is made, in consequence of taking a part, vastly greater than the whole was before, and that the owner is benefited instead of damnified by the appropriation. Indeed, the great majority of streets in cities and villages are dedicated to the public use by the owners of lands, without any other compensation or expectation of compensation than the increase in market value which is expected to be given to such lands thereby .; and this is very often the case with land for other public improvements, which are supposed to be of peculiar value to the locality in which they are made. But where, on the other hand, a railroad is laid out across a man’s premises, running between his house and his outbuildings, necessitating, perhaps, the removal of some of them, or upon such a grade as to render deep cuttings or high embankments necessary, and thereby greatly increasing the inconveniences attending the management and usé of the land, as well as the risks of accidental injuries, it will often happen that the pecuniary loss which he would suffer by the appropriation of the right of way would greatly exceed the value of the land taken, and to pay him that value only would.be to make very inadequate compensation. It seems clear, therefore, that, in these cases, it is proper and just that the injuries suffered and the benefits received by the proprietor, as owner of the remaining portion of the land, should be taken into account in measuring the compensation. This, indeed, is generally conceded; but what injuries sjtall be allowed for, or what benefits estimated, is not always so apparent. The question, as we find it considered by the authorities, seems to-be, not so much what the value is of that which is taken, but whether what remains is reduced in value by the appropriation, and if so, to what extent; in other words, what pecuniary injury the owner sustains by a part of his. land being appropriated.”

The same general doctrine, with ample illustrations, is laid down by Judge Dillon, in his work on Municipal Corporations, vol. 2, secs. 624 and 625 ; and-the author there states the process by which to estimate the benefits or injuries to the remaining portion of the parcel,or tract, and how such estimate may affect the question of just compensation for the part taken.

Such, then, being the general principle, founded injustice and fairness, and adopted and asserted by courts and jurists of the highest authority, it would seem to be clear that it is competent to Congress, in legislating for this District, to require the benefits, if benefits there really be, to the remaining parcel of land, where a part only of á tract is taken, to be taken into consideration in estimating the just compensation for the part taken for the improvement, as' provided in' section 11 of the act of 1893. Whether there be benefits of a nature to be considered, and to what extent, are questions of a judicial character, and are exclusively for the court.

' But it is strongly objected, and this objection was sustained by the court.below', that the statute, while it authorizes proceedings for condemnation of property required for toe improvement, makes no provision for the immediate opening and completion of the improvements from which benefits may be derived to the remaining parts’of the tracts or parcels not appropriated. In other words, the benefits authorized to be taken into account, in adjusting the measure of compensation for the parts taken, áre too remote and uncertain to form an element in estimating the present value of the land taken ; that the owner of land to be affected by the proposed improvement should have all the Certainty of benefit which the legislature can give ; and the court and jurors who are to estimate the damages should be able to ascertain with certainty when the work is to be done and the cost of it, so that they may easily estimate the benefit to accrue therefrom, and that there should' be nothing. left - to conjecture or speculation.

This objection does not seem to be well founded; when . all the provisions of the statute are taken into view:.. In construing this statute, we must bear in mind the great object, and purpose intended to be accomplished. ’ The object to be accomplished is the extension of the present city limits', so as to conform to the original plan of the city of Washington, as projected by President Washington and those'intrusted with the adoption of a pían and the laying out pf the national city. The plan, while originally confined. to a limited portion of thd territory cedéd. by the State of Maryland, yet contemplated the ultimate extension of. the city to ' the limits of the cession, if that should be found necessary. This extension of the city limits is a work of large and ex-, tensive proportions, and cannot be accomplished all at Once,, or within any very short time, but must, in' the nature of the work, be.done gradually as the public needs may require the improvement. Of-this fact all land owners within’ the District must be taken to. have knowledge. The plan of extension is intended to subserve a great public object, indeed, necessity, and also tO promote the private interests of property holders along the fines of improvement. That some.delay and inconvenience to'adjoining proprietors may occui\. are Consequence's that may reasonably be expected -; but the plan of extension should not be defeated, because some persons may suffer inconvenience, or even be made to suffer some consequential loss by the improvement projected or constructed. The statute has carefully provided the means by which the rights of individuals shall be protected in assessing benefits and estimating just compensation under section 11. The question whether benefits are too remote and contingent to be made an element in estimating just compensation, must be decided according to settled principles of law ; and none that cannot be ascertained with reasonable certainty and precision will be assessed. Remote, contingent, or speculative benefits will not be assessed. The whole subject-matter is placed under the immediate direction and supervision of the court, and we are not to suppose that any benefits will be allowed to be assessed that are not justified by settled principles of law. There is, therefore, no reasonable ground for the apprehension of injustice by reason of the uncertainty of the benefits that may be assessed under section 11 ; nor is there any reasonable ground for apprehension of injury occasioned by delay after condemnation had and judgment thereon. Section 18 of the statute furnishes ample guard and protection against any such injury occasioned by delay in the payment of the money awarded on condemnation ; and it is fair and reasonable to presume that the commissioners will proceed in opening and making the streets and avenues without unnecessary delay, after condemnation and payment for the right of way ; especially as they are forbidden, after the recording of the map of the plan of extension,.“ to improve, repair, or assume any responsibility in regard to any abandoned highway within the area covered by such map.” And the act, by express terms in its second section, provides that, “ in order to enable the commissioners to proceed speedily and efficiently to carry out the purposes of this' act,” they are authorized to appoint commissioners to supervise and direct the execution of the work. No unnecessary delay, therefore, is contemplated, and none should be presumed as likely to occur.

2. With respect to the fifteenth section of the act, different considerations are presented. The power of assessment for benefits attempted to be delegated by that section, in order to.raise the one-half of the cost of the improvement, can only be exercised by virtue of the taxing power of the Government. The authority attempted to be given by the act is, that of the amount awarded by the court as damages for each highway or reservation, or part thereof, condemned and established under this act, there shall be one-half assessed against the land benefited thereby, and the other half shall be charged up to the revenues of the District of Columbia. This power of assessment for benefits, as given in this section of the act, is without territorial limitation, and may extend into other subdivisions, and the same lots or parcels of land may be subject to assessments by other juries thereafter called upon to make assessments upon land benefited. This' would be contrary to justice, and would contravene an established principle of such local assessments. Such assessments should be so apportioned and levied as to produce uniformity in the burdens imposed thereby, within the taxing district, as nearly as possible. Judge Cooley, stating the result of all the well-considered cases upon the subject, says, that, “as to all taxation apportioned upon property, there must be taxing districts, and within these districts the rule of absolute uniformity must be applicable. A State tax is to be apportioned through the State, a county tax through the county, a city tax through the city; while in the case of a local improvement benefiting in a special and peculiar manner some portion of the State, or of the county or city, it is competent to arrange a special taxing district, within which the expense shall be apportioned.’’ Const. Lim. 610. Again, the author says: “ Even within this district the assessment is sometimes made by some other standard than that of value; and it is evident that if it be just to create the taxing dis--trict with reference to special benefits, it would be equally just and proper to make the taxation within the district have reference to the benefit each parcel of property receives, rather than to its relative value. The opening or paving of a street may increase the value of the property ■upon or near it; and it .may be just that all such property should contribute tc the expense of the improvement; but it by no means, follows that each parcel of the property will receive from the improvement a benefit in proportion to the previous valiie. One lot upon the street may be greatly increased in value, another at a little distance may be but slightly benefited ; and if no constitutional provision interferes, there is consequently abundant reason why the tax levied within the taxing district should have reference, not to value, but to benefit.” Id. 612.

The question of special benefit, and the prdperty to which it extends, is clearly one of fact. And being a question of fact, the legislature may commit to commissioners the ascertainment of the sum to be assessed, and the district within which the assessments shall be made. But it is not bound so to delegate ■ the power to determine these questions ; it may determine both of such questions for itself, and when so determined the decision is final and conclu- sive. Spencer v. Merchant, 125 U. S. 345.

In this case, while the act, by its fifteenth section, provides that one-half of the amount awarded as damages for each highway or reservation or part thereof, condemned and established, shall be assessed against the land .benefited thereby, it entirely fails to define or prescribe the district or territory within which the benefits may be assessed. Whether confined to the particular subdivision in which the highway or street may be condemned and established, or whether such benefits may be assessed against land beyond the limits of such subdivision along the line of such improvement, as extended into or through adjoining subdivisions, the act is entirely silent. Nor is there any provision conferring authority upon commissioners, or upon the court, to define such taxing district. And the act wholly fails to provide how the asstessment shall be apportioned — whether with reference to the existing value of the land, or to the amount of benefit only that may be derived from the improvement when made. The omission of ■ these essential provisions renders the power of assessment, under this fifteenth section, impossible of execution, according to settled principles of law. The provision authorizing the assessments under the fifteenth section, is entirely too indefinite and uncertain to furnish a reasonable and safe criterion for' assessing the one-half of the award of damages against the property supposed to be benefited. This omission or defect in the act, however, does not render invalid the entire act. The particular provision is nugatory for the want of certainty; but all the other provisions of the act are valid, according to my opinion. The defect in the act can easily be removed, by an amendatory act of Congress.

By the order of the court below dismissing the proceedings, it is recited, that, upon argument, "it appearing to the court that .the act of Congress under which this proceeding is instituted, is unconstitutional and void, for the reasons stated in the opinion of this court filed, it is ordered and adjudged by the court, that the verdict rendered herein by the juiy be and the same is set aside, and that the petition herein is hereby dismissed.”

This order, in my opinion, should be reversed, and the cause be remanded to the court below, so that the verdict of the jury may be set aside, and that the appellants be allowed to move for such other and further proceedings in the premises as they may. be advised to be proper. •.