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which it shall award in respect thereof." And section 15 speaks of the benefits, so deducted, as "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."

Construing section 11 in connection with the rest of the act, the words "the purpose for which it is taken," in the provision that, when the use of a part only of any parcel or tract of land is condemned, the jury, in assessing the damages therefor, shall take into consideration the benefit that 66 the purpose for which it is taken may be to the owner or owners of such tract or parcel by enhancing the remainder of the same," clearly signify the purpose for which it is condemned, the appropriation of the land for a highway, which is distinct from, and necessarily antecedent to, the actual construction and completion of the way; and the benefits, as well as the damages, to be taken into consideration, are to be estimated as of the date of such appropriation. The damages assessed as of that date constitute the entire compensation for such appropriation of land for a highway, including all injuries resulting from any change of the natural grade required in the actual construction of the highway, and also, it would seem, unless expressly provided otherwise by constitution or statute, any which may be caused by a future change of the grade by the public authorities. Goszler v. Georgetown, 6 Wheat. 593; Smith v. Washington, 20 How. 135, 149; Transportation Co. v. Chicago, 99 U. S. 635; Chicago v. Taylor, 125 U. S. 161; Wabash Railroad v. Defiance, ante, 88.

The necessary conclusion is that there is nothing unusual or unconstitutional in the provision of section 11, requiring benefits to be taken into consideration in assessing the compensation or damages to be awarded to the owners of lands affected by the establishment of new highways.

The other principal question in the case is of the constitutionality of section 15, which directs "the amount awarded by said court as damages for each highway or reservation, or part thereof, condemned and established under this act," to be assessed and charged, one half upon the lands benefited

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thereby, and the other half upon the District of Columbia; and, as to the first half, enacts that it "shall be charged upon the lands benefited by the laying out and opening of such highway or reservation, or part thereof"; that "the same jury which shall assess the damages caused by the opening of any highways or reservation, or part thereof, or by the abandonment of an 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 assessment 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"; that "the proceedings of the court and the jury, in making assessments for benefits under this section, shall conform as nearly as is practicable to the foregoing provisions of this act relating to the assessment of damages; and the verdict of the jury, making an assessment under this section as to any parcel of land, shall not be conclusive until the same shall have been confirmed by the court"; and that, "when confirmed by the court, the assessment so made shall be a lien upon the land assessed," and shall be collected as other taxes are collected, "and shall be payable in five equal annual instalments, with interest at the rate of four per centum per annum from the date of the confirmation of the assessment by the court."

The provisions of this section are to be referred, not to the right of eminent domain, but to the right of taxation; and the general principles applicable to this branch of the case have been affirmed by a series of decisions of this court.

It was contended by some of the owners of lands that the public improvement proposed was not of a local character, but was for the advantage of the whole country, and should be paid for by the United States, and not by the District of Columbia, or by the owners of the lands affected by the im

Opinion of the Court.

provement. But it is for the legislature, and not for the judiciary, to determine whether the expense of a public improvement should be borne by the whole State, or by the district or neighborhood immediately benefited. The case, in this respect, comes within the principle upon which this court held that the legislature of Alabama might charge the county of Mobile with the whole cost of an extensive improvement of Mobile harbor; and, speaking by Mr. Justice Field, said: "The objection urged is that it fastens upon one county the expense of an improvement for the benefit of the whole State. Assuming this to be so, it is not an objection which destroys its validity. When any public work is authorized, it rests with the legislature, unless restrained by constitutional provisions, to determine in what manner the means to defray its cost shall be raised. It may apportion the burden ratably among all the counties or other particular subdivisions of the State, or lay the greater share or the whole upon that county or portion of the State specially and immediately benefited by the expenditure." Mobile County v. Kimball, 102 U. S. 691, 703, 704.

The legislature, in the exercise of the right of taxation, has the authority to direct the whole, or such part as it may prescribe, of the expense of a public improvement, such as the establishing, the widening, the grading or the repair of a street, to be assessed upon the owners of lands benefited thereby. Davidson v. New Orleans, 96 U. S. 97; Пagar v. Reclamation District, 111 U. S. 701; Spencer v. Merchant, 125 U. S. 345, 355, 356; Walston v. Nevin, 128 U. S. 578, 582; Lent v. Tillson, 140 U. S. 316, 328; Illinois Central Railroad v. Decatur, 147 U. S. 190, 198, 199; Paulsen v. Portland, 149 U. S. 30. This authority has been repeatedly exercised in the District of Columbia by Congress, with the sanction of this court. Willard v. Presbury, 14 Wall. 676; Mattingly v. District of Columbia, 97 U. S. 687; Shoemaker v. United States, 147 U. S. 282, 286, 302.

The class of lands to be assessed for the purpose may be either determined by the legislature itself, by defining a territorial district, or by other designation; or it may be left by

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the legislature to the determination of commissioners, and be made to consist of such lands, and such only, as the commissioners shall decide to be benefited. Spencer v. Merchant, and Shoemaker v. United States, above cited; Fallbrook District v. Bradley, 164 U. S. 112, 167, 168, 175, 176; Ulman v. Baltimore, 165 U. S. 719. See also the very able opinion of the Court of Appeals of New York, delivered by Judge Ruggles, in People v. Brooklyn, 4 N. Y. 419, 430.

The rule of apportionment among the parcels of land benefited also rests within the discretion of the legislature, and may be directed to be in proportion to the position, the frontage, the area or the market value of the lands, or in proportion to the benefits as estimated by commissioners. Mattingly v. District of Columbia, Spencer v. Merchant, Walston v. Nevin, Shoemaker v. United States, Paulsen v. Portland, and Fallbrook District v. Bradley, above cited.

If the legislature, in taxing lands benefited by a highway, or other public improvement, makes provision for notice, by publication or otherwise, to each owner of land, and for hear ing him, at some stage of the proceedings, upon the question what proportion of the tax shall be assessed upon his land, his property is not taken without due process of law. Davidson v. New Orleans, Spencer v. Merchant, Walston v. Nevin, Lent v. Tillson, Paulsen v. Portland, and Fallbrook District v. Bradley, above cited.

The whole sum directed by section 15 to be assessed upon lands benefited is 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." This fixing of the gross sum to be assessed was clearly within the authority of Congress, according to the above cases.

The class of lands to be assessed is defined by directing that the aforesaid sum "shall be charged upon the lands benefited by the laying out and opening of such highway or reservation, or part thereof," and that the jury "shall ascertain and determine what property is thereby benefited." And the rule of assessment is defined by the further direction that the jury "shall assess against each parcel which it shall

Opinion of the Court.

find to be so benefited its proper proportional part of" the sum aforesaid, with a proviso that, as to any tract, part of which only has been taken, due allowance shall be made "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."

It was argued that section 15 was too uncertain to be putin execution, because it failed to define the district or territory within which the benefits might be assessed, and did not even specify whether the assessment should or should not be confined to lands within the particular subdivision in which a new highway was established. But in either alternative the assessment could not include lands outside of the District of Columbia; and the section would be equally constitutional whether the district of assessment was the particular subdivision, or the whole District of Columbia. And there does not appear to be any uncertainty as to which alternative was in the contemplation of Congress. The lands to be assessed being described generally as "the lands benefited" by the condemnation and establishment of the new highway, or by the abandonment of an existing highway, and again as the "property thereby benefited," and as the lands which the jury "find to be so benefited," without any words of restriction to lands in the particular subdivision, the reasonable inference is that all lands so benefited, lying within the exclusive jurisdiction of Congress over the District of Columbia, may be included in the assessment. The question what parcels of lands, within the district so ascertained, are benefited, and therefore liable to be assessed, might justly and constitutionally, as appears by the cases above cited, be committed by Congress to the determination of the tribunal entrusted with the authority of making this assessment.

Nor can we entertain any serious doubt as to the rule of assessment which is to govern. The directions that the jury "shall ascertain and determine what property is benefited " by the establishment of the highway, and "shall assess against each parcel which it shall find to be so benefited its proper proportional part of" the whole sum directed to be assessed,