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.
Page 205 U. S. 137
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
Page 205 U. S. 138
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
impanel a jury of twelve disinterested citizens, and the marshal is
to impanel 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
Page 205 U. S. 139
to the act would not be disposed of by the decision in
Louisville & Nashville R. Co. v. Barber Asphalt Paving
Co., 197 U. S. 430.
That case dealt with the same objection, to be sure, in point of
form, but a very different one in point of substance. The
assessment in question there was an assessment for grading and
paving, and it was pointed out that a legislature would be
warranted in assuming that grading and paving streets in a good
sized city commonly would benefit adjoining land more than it would
cost. The chance of the cost's being greater than the benefit is
slight, and the excess, if any, would be small. These and other
considerations were thought to outweigh a merely logical or
mathematical possibility on the other side, and to warrant
sustaining an old and familiar method of taxation. It was
emphasized that there should not be extracted from the very general
language of the Fourteenth Amendment a system of delusive exactness
and merely logical form.
But when the chance of the cost's exceeding the benefit grows
large, and the amount of the not improbable excess is great, it may
not follow that the case last cited will be a precedent.
Constitutional rights, like others, are matters of degree. To
illustrate: under the police power, in its strict sense, a certain
limit might be set to the height of buildings without compensation;
but to make that limit five feet would require compensation and a
taking by eminent domain. So it well might be that a form of
assessment that would be valid for paving would not be valid for
the more serious expenses involved in the taking of land. Such a
distinction was relied on in
French v. Barber Asphalt Paving
Co., 181 U. S. 324,
181 U. S. 344,
to reconcile the decision in that case with
Norwood v.
Baker, 172 U. S. 269.
And yet it is evident that the act of Congress under
consideration is very like earlier acts that have been sustained.
That passed upon in
Wight v. Davidson, it is true, dealt
with a special tract, and so required the hypothesis of a
legislative determination as to the amount of benefit conferred.
But the real ground of the decision is shown by the citation (
181 U. S. 181
U.S. 378,
181 U. S. 379)
of
Bauman v. Ross, 167 U. S. 548,
when the
Page 205 U. S. 140
same principle was sustained in a general law.
167 U. S. 167
U.S. 589-590. It is true again that, in
Bauman v. Ross,
the land benefited was to be ascertained by the jury, instead of
being limited by the statute to a square; but it was nonetheless
possible that the sum charged might exceed the gain. As only half
the cost was charged in that case, it may be that, on the practical
distinction to which we have adverted in connection with
Louisville & Nashville R. Co. v. Barber Asphalt Paving
Co., the danger of such an excess was so little that it might
be neglected, but the decision was not put on that ground.
In view of the decisions to which we have referred, it would be
unfortunate if the present act should be declared unconstitutional
after it has stood so long. We think that, without a violent
construction of the statute, it may be read in such a way as not to
raise the difficult question with which we have been concerned. It
is true that the jury is to apportion an amount equal to the amount
of the damage ascertained, but it is to apportion it "according as
each lot or part of lot of land in such square may be benefited by
the opening, etc." Very likely it was thought that, in general,
having regard to the shortness of the alleys, the benefits would be
greater than the cost. But the words quoted permit, if they do not
require, the interpretation that, in any event, the apportionment
is to be limited to the benefit, and if it is so limited all
serious doubt as to the validity of the statute disappears.
It is clear, however, from the petitions and the returns that
the jury did not administer the statute in the way in which we have
determined that it should be read. About one-fifth of each lot was
taken, and was valued at $92 and $75, respectively. That would give
a value of $368 and $300, at the most, to the remaining portions,
before the improvement was made. These lots were assessed $650 less
said $92, or $558, and $550 less said $75, or $475. It is most
improbable that the widening of an alley could have nearly trebled
the value of each lot. We think it apparent, as was assumed by the
Court of Appeals,
Page 205 U. S. 141
that the jury understood their duty to be to divide the whole
cost among the landowners, whether the benefit was equal to their
share of the cost or not. It must be admitted that the language of
the statute more or less lent itself to that, understanding. There
is nothing in the record sufficient to show that the jury took a
different view, or that they limited the assessment to the benefit
actually conferred on these lots. For this reason, the assessment
must be quashed, and it will not be necessary to consider the
special objections of the mortgagee.
Judgments reversed.
MR. JUSTICE HARLAN, MR. JUSTICE WHITE, and MR. JUSTICE McKENNA
concur in the judgment.