which were swampy and subject to overflow at times of high water. It also had for its purpose the draining of Lake Shillapoo. The first petition covered 6,500 acres. After the organization of the district had proceeded to the point where bonds were ready to be sold, it was permitted to remain dormant for three years, when a second petition was filed with the County Commissioners, and thereafter the district was regularly established, comprising 5,100 acres of land. It was determined that the project should be financed by the issuing of bonds to run for fifteen years. The commissioners advertised for the letting of the contract for the improvement and for the sale of the bonds. On the day before the date set, the plaintiffs in error began the present action. In the state court there were may objections to the validity of the proceedings, and all of them were decided against the plaintiffs.

The counsel for plaintiffs in error in this Court concede that the only point which they can press here grows out of an amendment to the Diking Law, § 4439-6 of Session Laws of Washington for 1923, pages 128, 129, with reference to reassessments. It reads as follows:

"If upon the foreclosure of the assessment upon any property the same shall not sell for enough to pay the assessment against it, or if any property assessed was not subject to assessment, or if any assessment made shall have been eliminated by foreclosure of a tax lien or made void in any other manner, the board of county commissioners shall cause a supplemental assessment to be made on the property benefited by the improvement, including property upon which any assessment shall have been so eliminated or made void, and against the county, cities and towns chargeable therewith in the manner provided for the original assessment, to cover the deficiency so caused in the original assessment." The italicized words were put in by the amendment in 1923.

It is argued for plaintiffs in error that by this statute it is attempted to give power to the county officers, upon

the foreclosure of the assessment upon any property, to reassess the deficit upon the remaining lands in the district, and that this permits them to ignore the original apportionment and to reassess lands within the district for the remainder of the cost of the improvement, the benefit of which inures to other lands in the district; that this violates the principle that assessments must be apportioned in accordance with the benefits received, and is not due process of law. It is said that this complaint is particularly pertinent to the case at bar, because a large area of the diking district involved comprises the bottom of Shillapoo Lake and contiguous low lands bordering it, the value of which is nothing at the present time, and the value of which may continue to be nothing after the system of improvement is established, for the reason that it has not been ascertained that the bed of the lake and the low lands surrounding it are of such composition as to permit their use for agricultural purposes even after they are drained; that, if such lands prove valueless, the assessment charges against the same will not be paid; and by the reassessment provision the cost thereof will be reassessed against the remaining land in the district, which will increase the cost to such lands far in excess of the benefits received. In answering the objection that the condition feared has not yet arisen, is premature and may never arise and that such owners can apply for relief when conditions arise making it necessary, it is said that the bonds in question, the issuing of which the plaintiffs in error are seeking to have enjoined, are to be sold under the provisions of this law with the reassessment feature as a part thereof, and that they become at once a cloud upon the title of plaintiffs, make it unmarketable, and to that extent tend to confiscate their property and work a taking without due process of law. It is said that if the reassessment feature violates the Federal Constitution, a court of equity should afford relief at the outset to the land owners within the district.

Opinion of the Court.

274 U.S.

The Diking Act specifically provides, § 4421, Session Laws of Washington for 1923, page 114, that the cost of the improvement shall be paid by assessment upon the property benefited, said assessment to be levied and apportioned as thereinafter prescribed. In Foster v. Commissioners of Cowlitz County, 100 Wash. 502, the Supreme Court of the State, in discussing a similar objection under this act though it has since been amended in one respect, used this language:

"In so far as the question of due process in the charging of the cost of the improvement to the property benefited thereby is concerned, counsel's contention is also untenable. Owners of property within the district are given notice and opportunity to be heard upon the question of the creation of the district and the construction of the improvement. When it comes to charging the cost of the improvement against the several tracts of land within the district, such charge must be 'in proportion to the benefits accruing thereto,' and we think the statute also means that no tract of land can be charged in excess of the benefits accruing thereto. Owners of the land within the district to be charged with any portion of the cost of the improvement are given notice and opportunity to be heard upon the question of benefits and the apportionment of the charge to be made therefor against the several tracts. Not until all this is done is the assessment finally levied."

It is said that this language of the Washington court can not now be regarded as a limitation to benefits of assessments against any particular lot of land because of the amendment of 1923, already referred to, by which the supplemental assessments may include deficits in the total assessments occasioned by elimination or voiding of previous assessments on the other lands in the district.

It seems clear to us that there is nothing in this amendment which changes the rule of construction of the statute as laid down by the Supreme Court in the Foster case,

imposing a limitation in favor of the assessment payers against any supplemental assessment that should exceed the benefits conferred on each one by the improvement. Supplemental assessments, in providing for the payment for such improvements, are recognized as a legitimate part of the proceeding necessary to raise the money and to pay bonds issued to meet the cost; and if, in the process of collection, it shall appear that some of the assessed land fails to pay the assessment and is appropriated and sold, the distribution of the deficit thus arising, to be included in another assessment, is only meeting the to be expected cost of the improvement. When the operation of the law works uniformly as against all parts of the assessment district, and results in a higher cost of the improvement, and an increased assessment on all the owners of land who have paid, it violates no constitutional right of theirs as long as their benefits continue respectively to exceed their individual assessments. Orr v. Allen, 248 U. S. 35; Orr v. Allen, 245 Fed. 486, 498; Norris v. Montezuma Valley Irrigation District, 248 Fed. 369, 373; Hagar v. Reclamation District, 111 U. S. 701; Fallbrook Irrigation District v. Bradley, 164 U. S. 112. Affirmed.

TIMKEN ROLLER BEARING COMPANY v. PENNSYLVANIA RAILROAD COMPANY.

GOODBODY, RECEIVER, v. PENNSYLVANIA RAILROAD COMPANY.

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO.

Nos. 168, 178. Argued February 25, 1927. Decided April 18, 1927. 1. An action against a railroad for the value of switching service performed by a shipper who did so at the railroad's request during a railroad strike and also paid the railroad tariff charges covering the same service, is within the jurisdiction of the District Court

where diversity of citizenship and jurisdictional amount are present; and the question whether an administrative decision by the Interstate Commerce Commission is prerequisite to the plaintiff's cause of action, is a question of the merits. P. 185.

2. Under Jud. Code § 238, a judgment of the District Court dismissing a case within its power to decide, upon a decision of the merits, was not reviewable directly by this Court though erroneously styled a dismissal "for want of jurisdiction." P. 185. 3. By the Act of September 14, 1922 (repealed by Act of February 13, 1925) a writ of error from this Court to the District Court was transferrable to the Circuit Court of Appeals when erroneously allowed under Jud. Code § 238 to a judgment of dismissal on the merits properly reviewable in the latter court. P. 186.

4. The provision of the Act of February 13, 1925, § 14, that it shall not affect cases "pending in the Supreme Court" on its effective date (three months from its approval) applies to a case erroneously lodged in this Court under Jud. Code § 238, which should have gone to the Circuit Court of Appeals, and imposes the duty of transferring it to that court under the Act of September 14, 1922. P. 187.

5. A writ of error from this Court, issued in due form by a judge having authority to issue such writs, followed by due execution of the writ and lodgment of the record here, is to be regarded as a case "pending" in this Court from the allowance and issuance of the writ, even though the writ was allowed and issued erroneously. P. 188.

ACTIONS to recover the value of switching service, brought in an Ohio state court and removed, on the ground of diversity of citizenship, to the District Court, where they were dismissed for supposed want of jurisdiction. Orders made at this term dismissing the writs of error are now set aside and the causes are transferred to the Circuit Court of Appeals.

Messrs. Luther Day, Rufus S. Day, and Donald W. Kling for plaintiffs in error, submitted.

Mr. Andrew P. Martin, with whom Messrs. Andrew Squire and Thomas M. Kirby were on the briefs, for defendant in error.