Macfarland v. United States ex rel. Miller , 18 App. D.C. 554 ( 1901 )

Mr. Justice Siiepard

delivered the opinion of the Court:

In the exercise of its ordinary legislative power over the District of Columbia, Congress, on June 14, 1878, authorized and directed the Commissioners to make and enforce such building regulations as they may deem advisable, and declared that the same should have the same force and effect as if enacted by Congress. 20 Stat. 131.

The latest regulations under this authority were promulgated on July 31, 1897, and contain many necessary and useful requirements looking to the safety, health, etc., of the occupants of the buildings and of the general public.

Among these is included the one heretofore set out which limits the depth of lots, upon which dwellings may be erected, to not less than fifty feet. The only limitation upon the size of a dwelling to be erected upon any lot is that it shall be not less than sixteen feet wide, and that it shall have certain open space in its rear for light and air. The houses which relator proposes to erect are of the prescribed width, and as they extend back but thirty-six feet, a sufficient open space is left to comply with the regulations.

The single question involved in this case, therefore, is the validity of the particular item of the regulations by virtue of which the relator has been denied permission to bnild his houses as proposed, because his lots have not the required depth of fifty feet.

The discussion of this question at the bar has taken a wide range in respect of the powers of the municipal authorities in the matter of regulating and supervising the erection of buildings by private owners, which we do not deem it necessary to follow, as the ground upon which our conclusion rests is embraced within much narrower limits. In our opinion this particular requirement cannot properly be considered a building regulation within the powers conferred by Congress to that end in the act before referred to.

It does not relate to the height, depth, material, or manner of construction. of the building itself; nor does it have any relation to leaving open necessary air spaces at the rear of buildings, or to the erection of dwellings fronting upon such air spaces, or alleys only; these are otherwise provided for. That owners of squares and parts of squares may possibly redivide or subdivide the same into lots of irregular depths, so that a later building upon one might shut off outer surface communication with the air space reserved in the rear of an adjacent house, and thereby possibly affect the public health or safety in some remote degree, does not seem to us a reasonable ground for bringing a rule for its prevention within the scope of a building regulation.

Moreover the same result might be achieved even if none of the lots were to be made of less depth than fifty feet.

To provide, in some measure, for such contingencies, Congress has legislated respecting the subdivision of lands and lots and the records of the plats thereof. By act of August 27, 1888, the Commissioners were “ authorized and directed to make and publish such general orders as may be necessary to regulate the platting and subdividing of all lands and grounds in the District of Columbia,” and further provided that no such plat or subdivision shall be admitted to record in the office of the Surveyor, without an order from the Commissioners. Other provisions look to the dedication of avenues, streets and alleys, and the conformity, in all cases outside the city limits, with the general plan of the city of Washington. 25 Stat. 451.

In obedience to this act, the Commissioners promulgated regulations concerning the subject-matter, among which is to be found section 6, heretofore referred to, requiring all lots of the subdivision to be not less than sixteen feet wide and fifty feet deep, to admit the plat to record. No penalty is provided for failure to obey the regulations beyond the denial of record.

In a case heretofore decided, where a party sought to compel the Commissioners to admit a plat to record that wag not in compliance with the requirements of the regulations, it was said that: “ Each owner has the undoubted right to lay off his land in any manner that he pleases, or not to subdivide it at all. * * But he has no corresponding right to have his plat of subdivision admitted to the records.” Ross v. United States ex rel. Goodfellow, 7 App. D. C. 1, 10.

In accordance with that decision, the Commissioners were justified in refusing to admit the relator’s plat of his subdivision to record, and the judgment appealed from does not compel them to do so. But the refusal of permission to the relator to build upon his lots as proposed is the denial of a right of property. It is admitted that his proposed buildings conformed in respect of materials, safety and healthfulness to the building regulations proper, .and that permission would have issued as a matter of course had the lots been of the depth of fifty feet. As. that regulation is not within the power conferred to make building regulations, and cannot constitute a defense under the act regulating the subdivision of lots, it is the plain duty of the Commissioners to issue the permit upon the payment of the lawful fees which the relator is ready and willing to do-. The act required of them being a purely ministerial one, can. be enforced by the writ of mandamus. Roberts, Treasurer, v. United States ex rel. Valentine, 13 App. D. C. 38, 46, s. c., 176 U. S. 221, 231.

It follows- that there is no error in the judgment and it will be affirmed. It is so ordered. Affirmed.