independent defenses, and, being so, the latter comes within the rule announced. Of course, if the act of Congress of 1875 was a grant of the right of way in præsenti, "conveying a good title when the road was completed," as contended, it needs no aid from the statute of limitations and would be an effectual defense if it were not barred by the judgment which we have considered.

Judgment affirmed.

NORTHERN PACIFIC RAILWAY COMPANY v. SLAGHT.

ERROR TO THE SUPREME COURT OF THE STATE OF WASHINGTON.

No. 153. Submitted January 11, 1907.-Decided March 11, 1907.

Decided on authority of Northern Pacific Railway Co. v. Slaght, ante, p. 122. Mr. Charles W. Bunn, with whom Mr. James B. Kerr was on the brief, for plaintiff in error.1

No counsel appeared for defendant in error.1

MR. JUSTICE MCKENNA delivered the opinion of the court.

THIS case was submitted with No. 152, the questions being identical. On the authority of that case the

Judgment is affirmed.

MR. JUSTICE BREWER took no part in the decision of these

cases.

1 See abstracts of arguments in Northern Pacific Railway Company v Slaght, ante, p. 122, argued simultaneously herewith.

205 U.S.

Argument for Plaintiffs in Error.

MARTIN v. DISTRICT OF COLUMBIA.

BRANDENBURG v. SAME.

ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.

Nos. 190, 191. Argued January 29, 1907.-Decided March 11, 1907.

Constitutional rights like others are matters of degree and a street opening statute which has stood for a long time will not be declared unconstitutional as taking property without compensation because in a particular instance the amount assessed under the strict letter of the statute exceeded the value of the property, but the statute should be so interpreted, as is possible in this case, so that the apportionment of damages be limited to the benefit.

THE facts are stated in the opinion.

Mr. E. C. Brandenburg and Mr. George E. Sullivan, with whom Mr. Clarence A. Brandenburg was on the brief, for plaintiffs in error:

Giving the most liberal construction possible to the law and the acts thereunder it is certainly true that to sustain an assessment on the theory of benefits, there must be an actual finding by the jury that the property assessed is in fact benefited to the extent of the assessment.

In this case the jury found the damages, but made no finding as to benefits. They merely returned that they apportioned the amount of the damages without any suggestion, in fact not a single word, about benefits. As they did not make any finding of benefits, and would not, the proceedings are incurably defective.

In this case the assessment for alleged benefits was twice the amount per foot, of the value of the land, and twice the value of the entire land assessed. The jury finds the value of

Argument for Defendant in Error.

205 U.S.

the land taken, which was part of the lots taken, the frontage in fact, to be worth 25 cents per foot, and allowed for the portion taken at that rate. The lots remaining were 40 feet front by a depth of 60 feet, and contained 2,400 square feet of ground. The value, on the basis of the finding of the jury itself, was $600. The tax against the property was $1,200, or exactly twice the value of the land. The assessment per foot as made by the jury was 50 cents, or twice the amount allowed as the value per foot for the property taken. Is that reasonable or can it possibly be valid? As said by the Supreme Court, if the assessment exceeds the value of the land assessed, a different question arises, which means, if it means anything, that such an assessment is invalid.

But the petition goes farther, and in good faith expressly avers, and it is not denied, that with the alleged improvements added, that is to say, after the opening of the street, the lots plus the alleged benefits from the opening of the street with local improvements are worth less than the amount assessed as a tax against the property.

Mr. Francis H. Stephens, with whom Mr. E. H. Thomas was on the brief, for defendant in error:

A determination by Congress or by the legislature of a State of the area to be benefited by certain improvements, and the assessment to be laid upon that area, is properly within the function of Congress or the legislature, and cannot be disputed at this late day. Land may be taken for a highway and the cost of the improvement assessed against the property benefited. Shoemaker v. United States, 147 U. S. 283; Bauman v. Ross, 167 U. S. 548; Williams v. Eggleston, 170 U. S. 304, 311.

The only case cited by plaintiff in error is Norwood v. Baker, 172 U.S. 269. That case stands alone upon the peculiar facts disclosed therein, and is not to be broadly cited as laying down any new doctrine for the application of special assessment principles. The Court of Appeals in attempting to fol

low that decision, declared a great part of the act for the street extensions to be unconstitutional, and that decision was reversed here, thus showing that this court did not intend to enunciate any new principle in the law relating to special assessments. Wight v. Davidson, 181 U. S. 900.

Plaintiff in error claims that the assessment exceeded the value of the land, and cites the assessment records to prove this. It is well known that the assessments are far below the real value of the property, below that for what it is usually sold even at auction sales. Moreover, the plaintiff leaves out of the argument the difference between these lots, as fronting on an alley and not available for building purposes, and their value as fronting on a street and capable of being used for the erection of dwellings. Congress has expressly provided in some of the acts passed for condemnation purposes that the jury shall assess the damages for the land taken as of the present value of the land taken, as in the present law, § 4 (Code, § 1608-h), and assess the benefits as of the value of the land as enhanced by the opening of the street or alley. It is obvious, in the present case, that the opening of the street more than doubled the value of the property. The figures cited by the plaintiff prove nothing whatever.

Plaintiff in error attempts to demonstrate, by the assessed values, not by the market values, what the benefits actually were. The jury, however, were the judges of what benefits. were received, and they were bound neither by the assessments of record nor by the estimates of the plaintiff. The apportionment was a matter left to their discretion and it is not to be set aside because the plaintiff thinks he has been harshly treated. It is a question of judgment and discretion and not one of mathematics.

MR. JUSTICE HOLMES delivered the opinion of the court.

These are writs of certiorari to test the validity of assessments for the widening of an alley in Washington under the

act of Congress of July 22, 1892, c. 230, 27 Stat. 255, as amended by the act of August 24, 1894, c. 328, 28 Stat. 501. The writs were quashed by the Supreme Court of the District and the judgments affirmed by the Court of Appeals. 26 App. D. C. 140, 146. The principal case is that of Brandenburg, the owner of land taken for the widening. That of Martin raises questions as to the rights of a mortgagee of the same land. The main issue is upon the constitutionality of the act. The statute authorizes the Commissioners of the District to condemn, open, widen, etc., alleys upon the presentation to them of a plat of the same accompanied by a petition of the owners of more than one-half of the real estate in the square in which such alley is sought to be opened, etc., or in certain other cases. After prescribed preliminaries the Commissioners are to apply to the marshal of the District to empanel a jury of twelve disinterested citizens, and the marshal is to empanel them, first giving ten days' notice to each proprietor of land in the square. The jury is to appraise the damages to real estate and also is to "apportion an amount equal to the amount of said damages so ascertained and appraised as aforesaid," including fixed pay for the marshal and jury, "according as each lot or part of lot of land in such square may be benefited by the opening, widening, extending or straightening such alley," with certain deductions. The amendment authorizes the Commissioners to open minor streets, to run through a square, etc., whenever in the judgment of said Commissioners the public interests require it.

The law is not a legislative adjudication concerning a particular place and a particular plan like the one before the court in Wight v. Davidson, 181 U. S. 371. It is a general prospective law. The charges in all cases are to be apportioned within the limited taxing district of a square, and therefore it well may happen, it is argued, that they exceed the benefit conferred, in some case of which Congress never thought and upon which it could not have passed. The present is said to be a flagrant instance of that sort. If this be true, perhaps the objection