District of Columbia v. Alice Brooke

Citation214 U.S. 138,29 S.Ct. 560,53 L.Ed. 941
Decision Date17 May 1909
Docket NumberNo. 117,117
CourtU.S. Supreme Court

This writ was issued to review a judgment of the court of appeals, affirming a judgment of the supreme court, quash- ing and vacating certain proceedings taken for the assessment of a drainage tax upon the property of defendant in error, under the authority of an act of Congress of May 19, 1896,—'An Act to Provide for the Drainage of Lots in the District of Columbia.' 29 Stat. at L. 125, chap. 206.

The act provides (1) that each original lot or subdivisional lot in the District of Columbia, where there is a public sewer, shall be connected with such sewer, and where there is a water main, connected with such water main, under certain conditions, which are enumerated. (2) It is made the duty of the commissioners of the District to notify the owner or owners of every lot required by the act to be connected with a public sewer or water main, as the case may be, to so connect such lot, the work to be done in accordance with the regulations governing plumbing and house drainage in the District. (3) If the owner or owners neglect for thirty days after receipt of notice to make such connections, he shall or they shall be deemed guilty of a misdemeanor, and be punished by a fine of not less than $1 nor more than $5 for each day of neglect. (4) If the owner be a nonresident of the District, or cannot be found therein, the commissioners shall give notice by publication twice a week, for two weeks, in some newspaper published in the city of Washington, to such owners, directing the connection of such lot with such sewer or such water main, as the case may be: 'Provided, however, that, if the residence or place of abode of the said nonresident lot owner be known or can be ascertained on reasonable inquiry, then, and in that case, a copy of the aforesaid notice shall be mailed to said nonresident, addressed to him in his proper name, at his said place of residence or abode with legal postage prepaid; and in case such owner or owners shall fail or neglect to comply with the notice aforesaid within thirty days, it shall be the duty of said commissioners to cause such connection to be made, the expense to be paid out of the emergency fund; such expense, with necessary expense of advertisement, shall be assessed as a tax against such lot, which tax shall be carried on the regular tax roll of the District of Columbia, and shall be collected in the manner provided for the collection of other taxes.'

The petition of defendant in error for certiorari alleges that she is a resident of Maryland, and was owner of the property against which the assessment was made at the time the connections were made by the commissioners. She alleges that the assessment or tax is illegal in its entirety and beyond the power of the respondent (the District) to collect, in this, that the respondent had no jurisdiction of her property, 'the said act of Congress being,' she further alleges, 'unconstitutional and void, because it discriminates between owners of real estate in said District; the said act not being uniform and capable of universal enforcement.' She also alleges that the assessment or tax is void in its entirety because the provisions of the 4th section of the act were not complied with in certain particulars which were set out. We do not give them, because two only are relied on; to wit, that the record does not show that notice was mailed to her, as provided by § 4, and that the record fails to disclose that any nuisance existed on her property, or that the means of drainage already there were unsanitary or unsufficient.

A rule to show cause was issued, to which the District made return. The return was verified by the commissioners. It denied some of the allegations of the petition, averred the constitutionality of the act, and that due and legal proceedings were taken thereunder in making the connections and assessing the tax, including notice to petitioner. To the return were attached, to use the language of the court of appeals, 'copies of such pertinent official papers and records as were in the custody of the District.'

The writ was ordered to be granted. The return to the rule was made the return to the writ. Subsequently, the court, reciting that the cause having been argued by counsel, and submitted to the court on the writ of certiorari, and the return thereto filed herein by respondent, adjudged the tax to be 'illegal and void,' and that it should be 'quashed and held for naught.' The respondent was 'forthwith directed to cancel the same on its tax records.'

The judgment was affirmed by the court of appeals. 29 App. D. C. 563.

Messrs. Francis H. Stephens and Edward H. Thomas for plaintiff in error.

[Argument of Counsel from pages 142-145 intentionally omitted] Messrs. John Ridout and George C. Gertman for defendant in error.

Statement by Mr. Justice McKenna:

[Argument of Counsel from pages 145-147 intentionally omitted] Mr. Justice McKenna delivered the opinion of the court:

Defendant in error, to sustain her contention that the record does not show notice to her of the proposed work, says that it shows only that a 'parcel' was mailed to her, not a letter, and that the contents of the parcel are not disclosed. To the extreme technicality of this contention the court of appeals answered that no objection was made to the return, and that it averred that the officers and agents of the District made diligent search for defendant in error in the District, and that she could not be found there, and that plaintiff in error believed that she was a citizen and resident of the state of Maryland. The court also pointed out that the return alleged that notice was given to her by publication, as required by the act of Congress, and by registered letter, postage prepaid, which was received by her. A registry return receipt, with her signature attached thereto, was made part of the return. Commenting on this, the court said that, if there was a defect in the return, it was purely technical, and could have been corrected. 'Upon the granting of the writ,' the court observed, 'had objection been made to the adoption by the commissioners of their preliminary return, the court undoubtedly would have permitted an amendment to the record for the purpose of supplying the defects now complained of by petitioner [defendant in error here]. Having, then, made no objection to the form of the return, it is too late to do so now.' If we could concede that the record justifies the distinction made by defendant in error between a parcel and a letter, we should adopt without hesitation the reply made by the court of appeals to the contention based on that distinction, or upon any defect in the return which could have been removed if objection had been seasonably made.

The second contention of defendant in error is that the record fails to disclose that any nuisance existed on her property, or that the means of drainage already there was unsanitary or insufficient, or that any necessity existed for making the connection. This contention seems to be made in this court for the first time. It certainly received no notice from the court of appeals, and the fact that it assumes that there was means of drainage on defendant in error's lot is not alleged in her petition. But, suppose the fact had been alleged; a property owner cannot urge against the drainage system of the District that he had adopted a system of his own, and challenge a comparison with that of the District, and obey or disobey the law according to the result of the comparison. The contention virtually denies any power in Congress to create a system of drainage to which a lot owner must conform.

Finally, defendant in...

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