Parsons v. District of Columbia

On October 5, 1895, Hosmer B. Parsons, the plaintiff in error, filed in the supreme court of the District of Columbia his petition against the District of Columbia and John W. Ross, Charles F. Powell, and George Truesdell, commissioners of the District, complaining, as illegal, of a certain charge or special assessment against land belonging to the petitioner as a water-main tax, or assessment for laying a water main in the street on which said land abuts. The petition avers that the charge or assessment in question was made in accordance with the act of the legislative assembly of the District of Columbia approved June 23, 1873, and the acts of congress approved, respectively, June 10, 1879, June 17, 1890, and August 11, 1894. The petition alleged the following grounds of objection to the assessment:

(1) That the petitioner was not one of the property holders who requested that the work and improvements for which said parcel of land was assessed should be done and made, and that said charge was made against property whose owner had not requested the doing of said work or the making of said improvements.

(2) That the petitioner was not consulted as to advisability of making said improvements, and was given no opportunity to be heard upon the questions of cost or utility or benefit of the work, or of the apportionment of the tax, and was not notified of the amount charged until after the work was concluded, and after the ase ssment had been made and had gone into effect as a lien upon said land, which was not a reasonable time.

(3) Said assessment was not made and was not authenticated by any officer or person authorized to make or authenticate the same.

(4) The assessment was made without any estimate of the cost of the work to be done, and without regard to the cost of the work or the value of the improvement, and not upon the basis of benefits to the property assessed; and said assessment is in excess of the cost of the work.

(5) The assessment was made without authority of law, and the respondents had no jurisdiction or right to make the same.

(6) The description of the parcel of land assessed is insufficient.

(7) The said tax was not assessed within 30 days after the said water main had been laid and erected.

(8) All of the said land assessed does not abut upon the street in which said water main was laid.

The petition proceeded to allege that the said charge remained unpaid, and that the commissioners were threatening to sell and convey said land in order to pay and satisfy said illegal charge, whereby the petitioner's title to his land was clouded; and that he was thereby injured, and has no appeal.

The petitioner prayed that a writ of certiorari should issue, commanding the respondents to certify to the court a copy of each and every record and part of record relating in any manner to the laying of said water main and said assessment, and that, upon the coming in of the return of the respondent, the said charge complained of should be quashed and annulled, etc.

The writ of certiorari was issued, and a return made thereto. The principal facts appearing therein are that the petitioner's land was assessed with the sum of $872.50, being at the rate of $1.25 for each linear foot abutting on the street; that the land abutting on the opposite side of the street was charged with an equal sum, making a total assessment of $2.50 per foot; and that the cost of the main was $1.50 per foot.

On January 6, 1896, after a hearing upon the petition and return, the petition was dismissed. An appeal was thereupon taken to the court of appeals of the District of Columbia, where, after argument, the judgment of the supreme court of the District was, on April 16, 1896, affirmed; and on May 5, 1896, the cause was, by a writ of error, brought to this court.

The principal enactments of congress pertaining to the water system of the District of Columbia are found in the Revised Statutes relating to the District in chapter 8, §§ 195-221.

Thereby the legislative assembly then in existence was authorized to supply the inhabitants of Washington and Georgetown with Potomac water from the aqueduct, mains, or pipes laid in the streets and avenues by the United States, and to make all laws and regulations for the proper distribution of the same; to establish a scale of annual rates for the supply and use of the water; and generally to enact such laws as might be necessary to supply the inhabitants of Washington and Georgetown with pure and wholesome water, and to carry into full effect the provisions of said chapter 8 of the Revised Statutes. It is further provided that a water tax may be levied and collected on all real property within the limits of the city of Washington which binds or touches on any avenue, street, or alley in which a main water pipe may be laid by the United States or by the District; that the water tax may be levied on lots in proportion to their frontage or their area, as may be determined by law, and may be collected in not less than three nor more than five annual assessments; and that the water tax so authorized to be levied and collected shall constitute a fund to be used exclusively to defray the cost of distribution of the water, including all necessary fixtures and machines connected with such distribution.

In pursuance of the authority thus delegated, the legislative assembly, by act approved June 23, 1873, provided as follows:

'That hereafter in ordr to defray the expenses of laying water mains and the erection of fire plugs, there be, and is hereby, levied a special tax of one and a quarter cents per square foot on every lot or part of lot which binds in or touches on any avenue, street or alley in which a main water pipe may hereafter be laid and fire plug erected, which tax shall be assessed by the water registrar within thirty days after such water mains and fire plugs shall have been laid and erected; of which assessments th water registrar shall immediately notify the owner or agent of the property chargeable therewith, setting forth in said notice the number of the square in which is situated the property on which said tax is assessed, and the avenue, street or alley on which it fronts; and the said tax shall be due and payable in four equal installments, the first of which shall be payable within thirty days from the date of the notice,' etc.

By the act of March 3, 1863 (section 204, Rev. St. D. C.), it was provided that, 'on petition of the owners of the majority of real estate on any square or line of squares in the city of Washington, water pipes may be laid and fire plugs and hydrants erected whenever the same may be requisite and necessary for public convenience, security from fire or for health.' But this provision was replaced by the act of June 17, 1890 (26 Stat. 159), which enacted that 'the commissioners shall have the power to lay water mains and water pipes and erect fire plugs and hydrants whenever the same shall be, in their judgment, necessary for the public safety, comfort or health.'

By the act of August 11, 1894 (28 Stat. 275), it was provided 'that hereafter assessments levied for laying water mains in the District of Columbia shall be at the rate of one dollar and twenty-five cents per linear front foot against all lots or land abutting upon the street, road or alley in which a water main shall be laid.'

A. A. Birney, for plaintiff in error.

S. T. Thomas and A. B. Duvall, for defendants in error.

Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court.