Arthur Briscoe v. Cuno Rudolph

• Decision Date: 29 May 1911
• Docket Number: No. 141,141
• Citation: 55 L.Ed. 848,31 S.Ct. 679,221 U.S. 547
• Parties: ARTHUR BRISCOE, Appt., v. CUNO H. RUDOLPH et al., Commissioners of the District of Columbia, and the District of Columbia
• Court: U.S. Supreme Court

221 U.S. 547

31 S.Ct. 679

55 L.Ed. 848

ARTHUR BRISCOE, Appt.,

v CUNO H. RUDOLPH et al., Commissioners of the District of Columbia, and the District of Columbia.

No. 141.

Argued April 25, 1911.

Decided May 29, 1911.

Messrs. Samuel Maddox and H. Prescott Gatley for appellant.

Mr. Edward H. Thomas for appellees.

Mr. Justice Lurton delivered the opinion of the court:

This is a bill filed by a lot owner whose property was subjected to a special assessment for benefits resulting from the extension of Rhode Island avenue in the city of Washington. The object of the bill is to vacate the assessment and enjoin the sale about to be made by the commissioners for the District.

The case was heard upon the bill, answer, and an agreed statement of facts, and was dismissed without prejudice to proceed in the case in which the assessment had been made for cancelation, if so advised.

The proceeding under which the special assessment in question was instituted in March, 1899, was in pursuance of authority conferred by an act of Congress of February 10, 1899, entitled, 'An Act to Extend Rhode Island avenue.' 30 Stat. at L. p. 834, chap. 150. That act provided that one half of the amount awarded as damages should be assessed against the lands within an area described, as benefits, considering the benefits received by each lot within the area. Such assessments were declared a lien on the lots severally assessed, and were to be collected as special improvement taxes in five equal instalments, with interest at 4 per cent until paid. The lot owners were not formally notified, but notice was given by publication to all property owners, as required by the statute. Following the act, a jury of seven was appointed, who viewed the property and assessed damages and benefits; the lot owned by this appellant being assessed for benefits in the sum of $1,000. A rule was then made requiring all persons whose lots had been so assessed to appear and show cause why the verdict of the jury of seven should not be confirmed. The appellant appeared and filed a number of objections, which may be shortly stated as follows:

a. That the act of Congress is unconstitutional, as not providing for notice, and as an arbitrary assessment of one half of the damage upon lots in a designated area.

b. That the assessment against the appellant was excessive, unjust, and an unequal apportionment of benefits.

c. Want of notice and opportunity to appear and be heard by the court or the said jury of seven, and want of notice as to any of the proceedings until cited to show cause why the verdict of the jury should not be confirmed.

These objections were overruled and the verdict and assessment confirmed. This final judgment was on June 27, 1900. Like objections by other lot owners assessed for benefits were filed and overruled at the same time.

From this action of the supreme court of the District an appeal was prayed, but never prosecuted. More than two years thereafter the commissioners advertised the lot, and proceeded to sell the same to enforce payment of the whole amount of the assessment. Thereupon this bill was filed.

There is no assignment of errors, as required by §§ 997 and 1012, Rev. Stat. (U. S. Comp. Stat. 1901, pp. 712, 716), and by the 35th rule of this court. These statutes and the rule apply to appeals from the courts of the District of Columbia, as we pointed out in the case of Columbia Heights Realty Co. v. Rudolph, 217 U. S. 547, 54 L. ed. 877, 30 Sup. Ct. Rep. 581. An assignment in the brief of appellant seems to have been regarded by many members of the District bar as sufficient. That erroneous practice has been followed here, and three errors have been assigned, though in substance there are but two. One is that the act of February 10, 1899, for the extension of Rhode Island avenue, is unconstitutional. The other is, that the judgment confirming the assessment made by a jury of seven over the objection of the appellant is void, and conferred no authority to enforce by sale the assessment so made.

This appeal was taken prior to the warning contained in the Columbia Heights Realty Company Case. For this reason, we shall avail ourselves of the provision in the 21st rule of this court, by which we reserve the right to 'notice a plain error,' not because we assume the errors assigned in the brief to be 'plain,' but that questions of such gravity may not be passed without notice, in view of the practice heretofore prevailing in the courts of the District of Columbia.

The objection to the constitutionality of the act of February 10, 1899, as stated in appellant's brief, is, 'that it authorizes an assessment of appellant's property to meet the cost of public improvements, in substantial excess of the special benefits conferred by the improvements, and to the extent of such excess confiscates appellant's property to public use without compensation.'

If by this it is meant to say that the act upon its face authorizes an assessment for benefits in excess of actual benefits conferred, the objection is not tenable. There is nothing upon the face of the act to indicate that one half of the damage awarded to those owners whose property is taken for the extension of the street is an amount in substantial excess of the special benefits realized by owners of property in the special improvement district created by the act. If, on the other hand, it is meant that, as matter of fact, the assessment against owners assumed to be benefited is so excessive as compared to actual benefits as to amount to a taking of such excess for public purpose without compensation, then there is no evidence in the record bearing upon the subject. The question of the excessiveness of a special assessment for benefits resulting from a public street improvement is one of fact. English v. Arizona, 214 U. S. 359, 53 L. ed. 1030, 29 Sup. Ct. Rep. 658.

That Congress, under its wide...