Mr. Chief Justice Shepard
delivered the opinion of the Court:
The order confirming the verdict in the original proceeding for the assessment of the damages and benefits accruing [115]*115from the improvement of Sherman avenue was not reversed in the case of Brown v. Macfarland, 19 App. D. C. 525, except as to the appellants therein.
The filing of exceptions to the verdict by some of the numerous parties in the condemnation proceeding did not have the effect to vacate the entire verdict, and to take away the jurisdiction of the court to confirm the same as to those who may have abandoned their exceptions, or who, like the complainant, had filed none. Buchanan v. Macfarland, 31 App. D. C. 6-19; Briscoe v. Macfarland, 32 App. D. C. 167-171. As the confirmation of the verdict on October 2, 1901, was binding upon the appellant Umhau, who presented no exception and took no appeal, there was no occasion for a reassessment of the benefits of the property, under the act of June 29th, 1906. That act only provided for a reassessment in ease of an assessment that “has been or may be vacated by reason of objections filed thereto.”
For the same reason it is unnecessary to consider the effect of the appellants’ receipt of the damages awarded him by the jury, after the confirmation of the verdict, as a waiver of any right that he might have had to contest the verdict and the order confirming the same.
The remaining question involved is that of the constitutionality of the act of March 3, 1899, providing for the improvement of Sherman avenue, and the assessment of benefits against the abutting property. The contention, on behalf of the appellant, is that the said act commands the assessment of one half the damages for the land taken upon the abutting lands to the distance of 300 feet from each line of the avenue, without any regard to the actual benefits received thereby, and to that extent amounts to the taking of private property for public use without compensation.
In support of this contention, reliance is had upon the allegations of the bill that sums assessed against complainant’s lots are far in excess of any benefit received, or expected to be received, and that the jury assessed the same as complainant’s [116]*116proportion, merely, of the entire sum directed to be paid by the landowners, irrespective of the actual benefits received.
The order directing the jury to proceed has, by stipulation of the parties, been made a part of the record. This order was that, of the amount of damages found, “not less than one half thereof shall be assessed by said jury against those pieces or parcels of ground abutting on both sides of Sherman avenue and the extension thereof.”
The Supreme Court of the United States has declared that provisions of a statute like this are to be referred not to the right of eminent domain, but to the right of taxation, which is practically unlimited. Spencer v. Merchant, 125 U. S. 345-355, 31 L. ed. 763, 767, 8 Sup. Ct. Rep. 921; Bauman v. Ross, 167 U. S. 548-589, 42 L. ed. 270, 288, 17 Sup. Ct. Rep. 966.
In the first of those cases, and substantially repeated in the latter, it was said by Mr. Justice Gray: “The legislature, in the exercise of its power of taxation, has the right to direct the whole or a part of the expense of a public improvement, such as. the laying out, grading, or repairing of a street, to be assessed upon the owners of lands benefited thereby, and the determination of the territorial district which should be taxed for a local improvement is within the province of legislative discretion. Willard v. Presbury, 14 Wall. 676, 20 L. ed. 719; Davidson v. New Orleans, 96 U. S. 97, 24 L. ed. 616; Mobile County v. Kimball, 102 U. S. 691, 703, 704, 26 L. ed. 238, 241, 242; Hagar v. Reclamation Dist. No. 108, 111 U. S. 701, 28 L. ed. 569, 4 Sup. Ct. Rep. 663.” In addition to this it was said in Bauman v. Ross, supra, p. 590: “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.” A later decision of the same court was regarded by many, including some of its own members, as qualifying the former decisions, and holding substantially that in any case the exactions from the owner of private property of the cost [117]*117of a public improvement in substantial- excess of tbe special benefits accruing to him is, to the extent of such excess, a taking, under the guise of taxation, of private property for public use without compensation. Norwood v. Baker, 172 U. S. 269, 43 L. ed. 443, 19 Sup. Ct. Rep. 187. Thereafter, this court, in accordance with what it conceived to be the doctrine of Norwood v. Baker, declared unconstitutional an act of Congress providing for an assessment of the costs of a street ‘improvement. Davidson v. Wight, 16 App. D. C. 371, 380. That act provided that not less than one half of the damages shall be assessed against the parcels of ground- situated and lying on each side of the extension of said streets; and also on all or any adjacent parcels of ground which will be benefited by the opening of said streets. In construing the act, the court said: “It is true that, in the enactment in question, the legislative authority recognizes the principle that the assessment is to be made only on property benefited by the improvement, and provides that the assessment shall be made in a judicial proceeding. But it does not leave the question of special benefits to be determined in such proceedings. It arbitrarily finds for itself that the whole adjacent property subject to assessment, or intended to be assessed, will have been specially benefited to the extent, at least, of one half of the cost of the improvement; and all that is left to the jury in the judicial proceeding is, not to find the value of the special benefit to each adjacent piece of' property, but to apportion at least one half of the cost, and as much more as they may think proper, between the adjacent lots. This, we think, is in direct contravention of the principle enunciated in the case of Norwood v. Baker, and cannot be supported as a valid exercise of legislative authority.”
On appeal to the Supreme Court that decree was reversed. Mr. Justice Shir as, who delivered the opinion of the majority of the court, said that the court of appeals had misapprehended the doctrine of Norwood v. Baker. He also substantially repeated the language of Mr. Justice Gray, heretofore quoted, in Spencer v. Merchant and Bauman v. Ross, supra. Wight v. Davidson, 181 U. S. 371, 379, 381, 45 L. ed. 900, 904, 905, 21 [118]*118Sup. Ct. Rep. 616. See also
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Mr. Chief Justice Shepard
delivered the opinion of the Court:
The order confirming the verdict in the original proceeding for the assessment of the damages and benefits accruing [115]*115from the improvement of Sherman avenue was not reversed in the case of Brown v. Macfarland, 19 App. D. C. 525, except as to the appellants therein.
The filing of exceptions to the verdict by some of the numerous parties in the condemnation proceeding did not have the effect to vacate the entire verdict, and to take away the jurisdiction of the court to confirm the same as to those who may have abandoned their exceptions, or who, like the complainant, had filed none. Buchanan v. Macfarland, 31 App. D. C. 6-19; Briscoe v. Macfarland, 32 App. D. C. 167-171. As the confirmation of the verdict on October 2, 1901, was binding upon the appellant Umhau, who presented no exception and took no appeal, there was no occasion for a reassessment of the benefits of the property, under the act of June 29th, 1906. That act only provided for a reassessment in ease of an assessment that “has been or may be vacated by reason of objections filed thereto.”
For the same reason it is unnecessary to consider the effect of the appellants’ receipt of the damages awarded him by the jury, after the confirmation of the verdict, as a waiver of any right that he might have had to contest the verdict and the order confirming the same.
The remaining question involved is that of the constitutionality of the act of March 3, 1899, providing for the improvement of Sherman avenue, and the assessment of benefits against the abutting property. The contention, on behalf of the appellant, is that the said act commands the assessment of one half the damages for the land taken upon the abutting lands to the distance of 300 feet from each line of the avenue, without any regard to the actual benefits received thereby, and to that extent amounts to the taking of private property for public use without compensation.
In support of this contention, reliance is had upon the allegations of the bill that sums assessed against complainant’s lots are far in excess of any benefit received, or expected to be received, and that the jury assessed the same as complainant’s [116]*116proportion, merely, of the entire sum directed to be paid by the landowners, irrespective of the actual benefits received.
The order directing the jury to proceed has, by stipulation of the parties, been made a part of the record. This order was that, of the amount of damages found, “not less than one half thereof shall be assessed by said jury against those pieces or parcels of ground abutting on both sides of Sherman avenue and the extension thereof.”
The Supreme Court of the United States has declared that provisions of a statute like this are to be referred not to the right of eminent domain, but to the right of taxation, which is practically unlimited. Spencer v. Merchant, 125 U. S. 345-355, 31 L. ed. 763, 767, 8 Sup. Ct. Rep. 921; Bauman v. Ross, 167 U. S. 548-589, 42 L. ed. 270, 288, 17 Sup. Ct. Rep. 966.
In the first of those cases, and substantially repeated in the latter, it was said by Mr. Justice Gray: “The legislature, in the exercise of its power of taxation, has the right to direct the whole or a part of the expense of a public improvement, such as. the laying out, grading, or repairing of a street, to be assessed upon the owners of lands benefited thereby, and the determination of the territorial district which should be taxed for a local improvement is within the province of legislative discretion. Willard v. Presbury, 14 Wall. 676, 20 L. ed. 719; Davidson v. New Orleans, 96 U. S. 97, 24 L. ed. 616; Mobile County v. Kimball, 102 U. S. 691, 703, 704, 26 L. ed. 238, 241, 242; Hagar v. Reclamation Dist. No. 108, 111 U. S. 701, 28 L. ed. 569, 4 Sup. Ct. Rep. 663.” In addition to this it was said in Bauman v. Ross, supra, p. 590: “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.” A later decision of the same court was regarded by many, including some of its own members, as qualifying the former decisions, and holding substantially that in any case the exactions from the owner of private property of the cost [117]*117of a public improvement in substantial- excess of tbe special benefits accruing to him is, to the extent of such excess, a taking, under the guise of taxation, of private property for public use without compensation. Norwood v. Baker, 172 U. S. 269, 43 L. ed. 443, 19 Sup. Ct. Rep. 187. Thereafter, this court, in accordance with what it conceived to be the doctrine of Norwood v. Baker, declared unconstitutional an act of Congress providing for an assessment of the costs of a street ‘improvement. Davidson v. Wight, 16 App. D. C. 371, 380. That act provided that not less than one half of the damages shall be assessed against the parcels of ground- situated and lying on each side of the extension of said streets; and also on all or any adjacent parcels of ground which will be benefited by the opening of said streets. In construing the act, the court said: “It is true that, in the enactment in question, the legislative authority recognizes the principle that the assessment is to be made only on property benefited by the improvement, and provides that the assessment shall be made in a judicial proceeding. But it does not leave the question of special benefits to be determined in such proceedings. It arbitrarily finds for itself that the whole adjacent property subject to assessment, or intended to be assessed, will have been specially benefited to the extent, at least, of one half of the cost of the improvement; and all that is left to the jury in the judicial proceeding is, not to find the value of the special benefit to each adjacent piece of' property, but to apportion at least one half of the cost, and as much more as they may think proper, between the adjacent lots. This, we think, is in direct contravention of the principle enunciated in the case of Norwood v. Baker, and cannot be supported as a valid exercise of legislative authority.”
On appeal to the Supreme Court that decree was reversed. Mr. Justice Shir as, who delivered the opinion of the majority of the court, said that the court of appeals had misapprehended the doctrine of Norwood v. Baker. He also substantially repeated the language of Mr. Justice Gray, heretofore quoted, in Spencer v. Merchant and Bauman v. Ross, supra. Wight v. Davidson, 181 U. S. 371, 379, 381, 45 L. ed. 900, 904, 905, 21 [118]*118Sup. Ct. Rep. 616. See also Parsons v. District of Columbia, 170 U. S. 45, 42 L. ed. 943, 18 Sup. Ct. Rep. 521; French v. Barber Asphalt Paving Co. 181 U. S. 324, 45 L. ed. 879, 21 Sup. Ct. Rep. 625; Detroit v. Parker, 181 U. S. 399, 45 L. ed. 917, 29 Sup. Ct. Rep. 624; Louisville & N. R. Co. v. Barber Asphalt Paving Co. 197 U. S. 430, 433, 434, 49 L. ed. 819, 821, 25 Sup. Ct. Rep. 466.
In our judgment, the later decisions cited redeclare the doctrines of the earlier ones, that statutes of the kind under consideration are to be referred not to the right of eminent domain, but to the right of taxation, and that; in the exercise of the taxing power, the legislature has the authority to direct that a part or the whole of the expense of a public improvement shall be assessed upon the lands declared to be benefited thereby, within such limits and according to such rule of measurements as the legislature may in its discretion prescribe. If we correctly apprehend the decision in the recent case of Martin v. District of Columbia, 205 U. S. 135-138, 51 L. ed. 743, 744, 27 Sup. Ct. Rep. 440, it does not impair the general doctrine of the previous cases.
Guided, therefore, by what we conceive to be the established principles governing the case at bar, we are constrained, notwithstanding the hardship that may have been imposed upon-the appellant, to hold that the court erred in granting the temporary injunction. There seems, however, to be a slight error in the charge of interest upon the assessments from December 2, 1901, instead of from July 1, 1902, under the curative act of that date. Buchanan v. Macfarland, 31 App. D. C. 6-23. This we presume will be corrected on the tax rolls before a re-advertisement of the postponed sales. For the reasons given, the decree will be reversed, with costs, and the cause remanded, with direction to dissolve the injunction, and for further proceedings in conformity with this opinion. Beversed.
On December 13, 1909, a motion by the appellee for a rehearing was overruled.