United States ex rel. Henderson v. Edmunds

Mr. Justice James,

after stating the case, delivered the opinion of the court.

The case comes up on demurrer to the petition of the relator.

The court can only direct the Commissioners to go on and execute their office, if it appears on the petition that they have refused to do so.

It is shown that improvements were made in constructing M street, between 24th and 25th streets northwest, in this city, bordering on lots described as belonging to Mrs. Henderson; that assessments were made, amounting in the aggregate to $2,681.85, which were paid on the 24th of February, ISTJ, and that Congress afterwards passed an act authorizing the Commissioners to revise and correct assessments which were erroneous and excessive, and to allow a drawback for the amount of the excess or error; that the petitioner, in pursuance of the requirements of this act, presented a petition for correction of his assessment, alleging that the whole of the assessment was erroneous and excessive, on the ground that no benefit was bestowed on the property by this improvement, but that, on the contrary, the property was seriously injured. They urge that the statute prescribing the manner and defining the cases in which the Board of Public Works was to assess any charge upon property, required that the property should appear to be benefited thereby. The language of that statute is as follows :

“ The Board of Public Works shall assess, in such manner as shall be prescribed by law, upon the property adjoining and to be specially benefited by the improvement authorized by law, and made by them a reasonable proportion of tbe cost of the improvement, not exceeding one-third of such cost.”

Tbis subject was presented to tbe Commissioners; argument was made to them that no benefit was conferred upon tbis property; that tbe law requires that, before' any charge could be made upon tbe property, such benefit should have accrued, and that therefore tbe whole assessment was erroneous. It appears that those propositions were argued, and that tbe Commissioners, acting through their secretary, in tbe usual manner, mad,e tbe following reply to tbe petitioner’s counsel:

“Oeeioe oe the Commissioners,

District oe Columbia.

Messrs. Crittenden & Mackey and

E. W. Whitaker, Attorneys, &c.

Gentlemen : Referring to tbe statement submitted by you respecting tbe assessment of lot R, in square 25, property of Mrs. M. C. Henderson, I am directed to inform you that, after careful consideration of your brief, and of tbe statements submitted in a bearing before tbe full board on tbis date, tbe Commissioners conclude that tbe special assessments heretofore levied in tbis and other like cases on the property adjoining street improvements, are not erroneous, and are not subject to revision, under the acts approved June 19, 1878, and June 27, 1879, in tbe manner claimed by yon.

Very respectfully,

W. Tindall, Secretary.”

It was urged at tbe argument by tbe demurrant that tbe concluding statement in tbis letter, that tbe assessments in question were “not subject to revision under tbe acts approved June 19, 1878, and June 27, 1879, in tbe manner claimed ” by tbe petitioner, amounted to a refusal of tbe Commissioners to enter upon an official duty. We think that tbis is an incorrect interpretation of tbe answer of tbe Commissioners, and of their official action. Tbe petitioner shows that the error in the assessment which was presented to the Commissioners, was alleged to have arisen from the fact that the assessment was made in a case where no benefit was bestowed on the property "assessed. The answer of the Commissioners shows that they had examined all the grounds on which error was alleged, and that they had decided that the assessment was not erroneous. If, as was argued by the relator before them, it was their duty'to consider whether the absence of benefit rendered the assessment erroneous, they performed that duty, and there is no unperformed. duty which this court, can command them to perform. It is immaterial whether they decided well or ill, so long as they performed the duty of examining and determining whether the assessment was erroneous or excessive. The writ of mandamus cannot do the work of a writ of error.

But we are asked by counsel for the District to inform the Commissioners, notwithstanding we might decline to interfere with them by mandamus, what their decision should have been. The Supreme Court of the United States has-more than once taken such a course after stating that the case before it was not a proper one for the remedy sought; and as we have a very clear opinion on this subject, we shall act upon that example.

We shall consider, then, the meaning of this statute which enjoined upon the Board of Public Works the duty of assessing a proportion of the cost of the improvement, not exceeding one-third, upon the property adjoining and to be specially benefited. Counsel for the petitioner claim that this “property adjoining and to be specially benefited,” meant that the assessment was to be made upon property adjoining, provided it be in fact benefited. The statute says nothing of that kind. It only states that the assessment is to be upon property adjoining and to be specially benefited. Afterwards, when Congress validated the proceedings of the Board of Public Works, the validating act used the words “property adjoining and specially benefited,” but that expression was not intended to affect the construction to be put upon the original act, and we think it is entirely clear, that the original words, “ property to be benefited,” were intended 'merely as a designation of the property, and not as a condition on which a charge was to be made on that property. The intention of the legislature, in using the words, “to be benefited,” was to give the reason why a part of the burden of a street improvement was assessed upon “the property adjoining ” — a mode of expression not uncommon in legislation. To hold that such a provision intended that an assessment should be made upon the property adjoining provided it was benefited, would be equivalent to inserting in the statute a limitation which would have been distinctly stated if it was intended. Moreover we must suppose that Congress intended to establish some uniform scheme for assessing the cost of a general system of improvements, and the construction claimed by the relator would destroy all uniformity.

A number of cases were cited on the part of the relator, in which it was held that no assessment could lawfully be made on property which was not benefited in fact; but we observe that in all of these the law expressly limited the assessment to such property as was benefited. Such cases have no bearing upon the construction of a statute which contains no express limitation.

The reasonableness of the construction insisted upon may be tested by its operation. The Board of Public Works was charged, first, with the making of a contract by which the whole cost of a street improvement should be determined; and, second, with the distribution of this cost between the owners of adjoining property and the District. If they were authorized by the statute to assess a part of that cost, not exceeding one-third, upon adjoining property because it was assumed in law that such property was specially benefited, their executive and ministerial powers were equal to the work to be done. They had only to ascertain the frontage by measurement, and whether the propérty was specially exempted from assessments. But if they were to make an assessment on adjoining property only in case it was benefited, they would have to do a work for which no means were furnished them. We find no provision that they were to act 'as a jury; no provision whatever that would meet the necessities of such an inquiry. The whole system of power and method would have to be implied; and that, too, in the absence of any express provision that they were to determine the fact of benefits at all. We are of opinion, then, that the Board of Public Works was not charged with this inquiry, and that an assessment upon adjoining property did not depend upon a condition that such property should be found to be thereby specially benefited. It follows that an assessment would not be shown to be erroneous in law because resulting damage to the property appeared to have neutralized the benefit. In such cases the working of the general rule would undoubtedly be hard, but that consideration does not affect the validity of the proceedings or the construction of the statute under which they are taken.

We should have reached these conclusions if the ques-question had been one of first impression; but we think that it. has been settled substantially by the Supreme Court of the United States in the case of Mattingly vs. The District, 91 U. S., 67. In that case the cost of the improvement, in the construction of the sewer on Seventh street, in frontof certain property, was charged on that property by the frontage. That was before the act of Congress validated the proceedings of the Board of Public Works, in making charges at all. One of the points made was, that assessments according to frontage on the street were unauthorized and illegal, and the court held that the statute, which rendered valid the assessments,, 'validated that system. It is true the question, whether the particular property was benefited or not, was not raised in that case, but the court covered this ground when they held that assessment by frontage was the system which the later statute validated.

We think, therefore, the question is- closed, and that it is-not in the power of the Commissioners, when they come to act under the statute authorizing them to correct erroneous or excessive assessments, to consider anything but the elements that go to mate up the charge. It is not in their power to consider or attempt to adjudicate how; the property itself was benefited. ' The demurrer of the respondents, therefore, is sustained.