Evening star. [volume] (Washington, D.C.) 1854-1972, 1896-04-24

ercised in the statuts under consideration.
Section Is, which provides for the assess
Ident CT 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 consider
alton later.
Section II.
Section II. which regulates the condem-
nation. provides that the value OF the part
taken from an owner may be reduced by the
benefits which may accrue to his remain
ing land. Where these benefits are found
to equal or to exceed the value Of the part
taken. there is nothing left for which to
assess 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 COM
peGsation 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 UP the
amount thereof, under the provisions of
section 10. 1t Is true that by special pro-
v.sIon or that section the jury is required
to make due allowance for the amount IL
any, which shall have been deducted from
the value of the part taken on account of
the dement, to the remainder of the tract
Exactiy what this due allowance may
mean Is unimportant. In it's broadcast appli-
cation 1t is eminently just, but it Is given
as an act of grace, and Is not the compul-
Scry recognition of a right If the power
10 consider these benefits exists in the
award OF just compensation in the exercise
or the right of eminent domain it Is de-
pendent upon nothing else
Payment of the surplus may be made
from 1he public revenues, or in part from
fund provided by special assessments
upon all neighborins lands that are benefit
ea Dy Inc Improvement, in the discretion
OF congress. This power of special assess
t,;tb ~. my ne made to operate concurrently
win the other or it may follow, or be called
INTO existence by later independent act .
ana III case Of its exercise there would seem
70 De no way in which, save by legislative
from double assessment
Irihtns the power to assess the cost
VI me Improvement against lands BEN
enteu thereby, then, If the provision re-
taken for benefits assessed against him nm
uer section IL had been omitted therefrou
IL could hardly be rendered invalid thereby
me plea or double assessment would
oe met with the answer that the first one
was made not an assessment of a tax.
ou. uhdef the separate and distinct pro-
VISION or the fifth amendment mrulatinp
use. " Po"-ie
had the power to assess and set off
penehts peen excluded from section H. or
mad section 10 been amalgamated there
with and the owner of the land takan
merely included with other neiebhorina
lahd owners In an assessment in propor-
tion 10 benefits, for the purpose of raising
1und to aid in paying the cost of the i'm
protemeht; the foregoing objection might
probably have been obviated. because
whist the two proceedings would be had
tosethef, the assessment and payment of
compensation, on the one hand, and the
assessment of the cost of the pubIic inn
proVement, on the other. would have been
separate and distinct opera tons
referring to the case Of Md. and w. r.
r. Co V: Hitler, supra, where the reasons
Tor the Interpretation given the Iang,,aRe
of the fifth amendment limiting the eyer
else OF the right of eminent domain are
set forth, our conclusion is that so much
al least. of section II as provides for the
dimlnution of the just CONDENSATION for
the value of the land taken, to the extent
Oh benefits accruing to the remainder, is
beyond the power of Congress, and there
fore void
A Part May Stand.
1T does not follow, however that the
WEoie section shall be declared void and
stricken from the bill because of the at
tempt to exercise a power that Congress
does not possess; for as if in recognition
of a doubt as to its possession of such
power, 1t Is further provided that the as
SeSSInentS or 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 re-
garded as imperative rather than per-
missive only.
I'm Md. & w. r. r. Co. agt Hitler supra
the trial court. without any direction upon
the point In the law. required the jury
10 make separate assessment; and upon
return OF the verdict, ignored the assess
ment of benefits and entered judgment for
the value as found; and that Judgment
we aIhrmed We see no reason, therefore.
Why the remainder of the section may not
stand, with the whole provision as to bene-
hts stricken out 1t is plainly severable
therefrom Huntington agt. Worthen, 40
L. s.. 81 102.
''2. Notwithstanding the criticism con-
tanned in the opinion of the majority of
the court in the recent case of Craighill
agt Van Riswick GA w. L. r., I'D, of the
doctrine that special assessments for bene-
fits received, may be made in aid of pub
lie 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 tnat case, too, marked difference
was referred to as existing between assess
ments 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 1t will be found. upon a closer an
alys1s 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 Tot possess before, such,
generally. as the improvement of a street
for access to his property or the con-
struction OF a sewer for the drainage of
his land, or some similar work which he
could. and should, have done for himself. if
1t were not that such work by a private
individual for obvious reasons would be
impracticable.'
Some Of those special easements and
rights OF property in the streets, involved
in this proceeding, have been mentioned
heretofore.
Section Is.
''In so far as the general principle Of the
assessment established by section Is of
this act Is concerned, there can be no sub
stantial objection.
1T is fair, liberal and regular. One-half
only of the cost, and that payable in five
annual installments, Is to be assessed
against the property found to be benefited
by the Improvement, in proportion to the
benefits by each tract received. The bene-
fits are not apportioned by an arbitrary
rule of frontage, area or neighborhood: but
are to be ascertained by jury under the
direction and supervision Of competent
court with the same right Of appe,I n. T.,