Although the matter in dispute in this case is not sufficient to
give this Court jurisdiction, it plainly appears that the validity
of statutes of the United States, and of an authority exercised
under the United States was drawn into question in the court below,
and is presented for the consideration of this Court.
The enactment by Congress that assessments levied for laying
water mains in the District of Columbia should be at the rate of
$1.25 per linear front foot against all lots or land abutting upon
the street, road, or alley in which a water main shall be laid, is
conclusive alike of the necessity of the work and of its benefit as
against abutting property.
The power of Congress to exercise exclusive jurisdiction in all
cases within the District includes the power of taxation.
If the assessment for laying such water mains exceeds the cost
of the work, it is not thereby invalidated.
On October 5, 1895, Hosmer B. Parsons, the plaintiff in error,
filed in the Supreme Court of the District of Columbia
Page 170 U. S. 46
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
assessment 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.
Page 170 U. S. 47
6. The description of the parcel of land assessed is
insufficient.
7. The said tax was not assessed within thirty 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, sections 195 to
221.
Thereby the legislative assembly then in existence was
Page 170 U. S. 48
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 order 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 the 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
Page 170 U. S. 49
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, § 204, Rev.Stat. 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, c.
428, 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, c. 253, 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."
MR. JUSTICE SHIRAS, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The defendants in error have moved to dismiss the writ of error
because the sum or value of the matter in dispute is less than
$5,000, and because the judgment of the court below does not
involve the validity of a statute of the United States or of an
authority exercised under the United States.
It is true that the amount or value of the matter in dispute is
not sufficient to enable this Court to exercise its revisory
power
Page 170 U. S. 50
over the judgment of the Court of Appeals, but we think it
plainly appears that the validity of statutes of the United States
and of an authority exercised under the United States was drawn
into question in the court below, and is presented, by the
assignment of error, for the consideration of this Court.
It is stated in the opinion of the Court of Appeals that the
questions raised in that court were three: (1) whether the act of
the Legislative Assembly of the District of Columbia, approved June
23, 1873, in reference to the construction of water mains, and
providing the mode of assessment therefor, and also the Act of
Congress of August 11, 1894, "to regulate water main assessments in
the District of Columbia," are constitutional and valid enactments;
(2) whether in the assessment there was a sufficient description of
the appellant's property; (3) whether there was sufficient notice
of the assessment given to the appellant. 8 App.D.C. 391. Those
questions are clearly within the terms of the statute authorizing
this Court to review the final judgments or decrees of the Court of
Appeals.
The proposition chiefly urged on our consideration is that in
all cases where proceedings are to be had for the taking of
property, or to impose a burden upon it, the statute itself must
provide for notice to the property owner, otherwise it is
unconstitutional, and that the statutes under which the present
proceeding was had did not provide for notice to the owner of land
to be assessed, nor give him an opportunity to be heard.
Before we reach a particular examination of the reasoning
advanced and of the authorities cited on behalf of the plaintiff in
error, certain principles, so well settled by the authorities,
federal and state, and by views expressed by esteemed authors as to
form safe materials from which to reason, may well be briefly
adverted to.
In every modern civilized community or state there are some
matters of which every citizen and property owner must be
indisputably visited with notice. In the eye of the law, he knows
that his personal service is due to maintain public order, and to
protect his country from hostile invasion. He is bound to know
that, in view of the protection he and his
Page 170 U. S. 51
property receive, it is his duty to contribute his due share to
the establishment and maintenance of stable government. No person
in any country governed by laws, least of all in a country where
the laws are passed and administered by legally constituted
authorities, can be heard to say that he was ignorant of the fact
that such was his duty, and that, if he neglected or failed to make
such due contribution, lawful compulsory methods might be resorted
to.
So, too, when he elects to become a member of a municipal
community, and seeks to enjoy the social benefits thereby afforded,
he is supposed to have notice of the necessary obligations he thus
incurs. Streets must be graded, paved, and lighted. A police force
to enforce peace and order must be provided. Particularly, in the
line of our present investigation, there is the obvious necessity
for a system to supply the inhabitants with a constant and
unfailing supply of water, an essential for health, comfort, and
safety next in importance to air. He cannot be heard to contend
that he is entitled to gratuitously receive such advantages, nor
that the laws and ordinances under which they are created and
regulated are invalid, unless his individual and personal views
have been formally obtained and considered.
On the other hand, it is equally well settled that the exercise
of the power to assess and collect the public burdens should not be
purely arbitrary and unregulated.
In each case, therefore, where the party whose property is
subjected to the charge of a public burden challenges the validity
of the law under which it was imposed, it becomes the duty of the
courts to closely consider the special nature of the tax and
legislation complained of.
It is trite to say that general principles announced by courts,
which are perfectly sound expressions of the law under the facts of
a particular case, may be wholly inapplicable in another and
different case, and there is scarcely any department of the law in
which it is easier to collect one body of decisions and contrast
them with another in apparent conflict than that which deals with
the taxing and police powers.
There is a wide difference between a tax or assessment
prescribed
Page 170 U. S. 52
by a legislative body having full authority over the subject and
one imposed by a municipal corporation, acting under a limited and
delegated authority. And the difference is still wider between a
legislative act making an assessment and the action of mere
functionaries whose authority is derived from municipal
ordinances.
The legislation in question in the present case is that of the
Congress of the United States, and must be considered in the light
of the conclusion, so often announced by this Court, that the
United States possess complete jurisdiction, both of a political
and municipal nature, over the District of Columbia.
Mattingly
v. District of Columbia, 97 U. S. 687;
Gibbons v. District of Columbia, 116 U.
S. 404;
Shoemaker v. United States,
147 U. S. 282;
Bauman v. Ross, 167 U. S.
568.
By this legislation a comprehensive system regulating the supply
of water and the erection and maintenance of reservoirs and of
water mains was established, and of this legislation every property
owner in the District must be presumed to have notice. And
accordingly, when by the Act of August 11, 1894, Congress enacted
that thereafter assessments levied for laying water mains in the
District of Columbia should be at the rate of $1.25 per linear
front foot against all lots or land abutting upon the street, road
or alley in which a water main shall be laid, such act must be
deemed conclusive alike of the question of the necessity of the
work, and of the benefits as against abutting property. To open
such questions for review by the courts on the petition of any or
every property holder would create endless confusion. Where the
legislature has submitted these questions for inquiry to a
commission, or to official persons to be appointed under municipal
ordinances or regulations, the inquiry becomes in its nature,
judicial in such a sense that the property owner is entitled to a
hearing, or to notice or an opportunity to be heard.
This distinction was clearly brought out in the noted case of
Stuart v. Palmer, 74 N.Y. 183. There, an act of the State
of New York empowered a commission composed of three persons to
open and pave an avenue, and for that purpose
Page 170 U. S. 53
"to take such land as was requisite, estimate the value thereof,
and assess the amount on the lands benefited by the opening of the
avenue in proportion to the benefits,"
but which provided for no notice to the property owner, and the
Court of Appeals held that notice of the proceeding was essential,
and that accordingly the proceedings were invalid. Subsequently,
the legislature passed a validating act, directing a sum equal to
so much of the first assessment as had not been paid, with
interest, and a proportionate part of the expenses of that
assessment, should be assessed upon and apportioned among the lots
upon which the former assessment had not been paid. The Court of
Appeals sustained the act. 100 N.Y. 585. In delivering the opinion
of that court, Judge Finch said:
"The act of 1881 determines absolutely and conclusively the
amount of the tax to be raised, and the property to be assessed and
upon which it is to be apportioned. Each of these things was within
the power of the legislature, whose action cannot be reviewed in
the courts upon the ground that it acted unjustly or without
appropriate and adequate reason. The legislature may commit the
ascertainment of the sum to be raised and of the benefited district
to commissioners, but it is not bound to do so, and may settle both
questions for itself, and when it does so, its action is
necessarily conclusive and beyond review. Here an improvement has
been ordered and made the expense of which might justly have been
imposed upon adjacent property benefited by the charge. By the act
of 1881, the legislature imposes the unpaid portion of the cost and
expense, with the interest thereon, upon that portion of the
property benefited which has thus far borne none of the burden. In
so doing, it necessarily determines two things,
viz., the
amount to be realized and the property specially benefited by the
expenditure of that amount. The lands might have been benefited by
the improvement, and so the legislative determination that they
were, and to what amount or proportion of the cost, even if it may
have been mistakenly unjust, is not open to our review. The
question of special benefit, and the property to which it extends,
is of necessity a question of fact, and,
Page 170 U. S. 54
when the legislature determines it in a case within its general
power, its decision must, of course, be final. . . . The precise
wrong of which complaint is made appears to be that the landowners
now assessed never had opportunity to be heard as to the original
apportionment, and find themselves now practically bound by it as
between their lots and those of the owners who paid. But that
objection becomes a criticism upon the action of the legislature,
and the process by which it determined the amount to be raised, and
the property to be assessed. Unless by special permission, that is
a hearing never granted in the process of taxation. The legislature
determines expenditures and amounts to be raised for their payment,
the whole discussion and all questions of prudence and propriety
being confided to its jurisdiction. It may err, but the courts
cannot review its discretion. In this case, it kept within its
power when it fixed first the amount to be raised to discharge the
improvement debt incurred by its direction, and second when it
designated the lots and property which, in its judgment, by reason
of special benefits, should bear the burden, and, having the power,
we cannot criticize the reasons or manner of its action."
The case was brought to this Court, and, under the style of
Spencer v. Merchant, is reported in
125 U.
S. 345. The reasoning of the Court of Appeals was quoted
and approved, and its judgment sustaining the constitutionality of
the act in question was affirmed.
In
Hagar v. Reclamation District, 111 U.
S. 701, the distinction between a tax or assessment
imposed by a direct exercise of the legislative power calling for
no inquiry into the weight of evidence, nor for anything in the
nature of judicial examination, and a tax or assessment imposed
upon property according to its value, to be ascertained by
assessors upon evidence, was pointed out, and it was held that in
the former case, no notice to the owner is required, but that in
the latter case, the officers, in estimating the value, act
judicially, and notice and an opportunity to be heard are
necessary. In giving the opinion of the Court, it was said by Mr.
Justice Field:
"Of the different kinds of taxes which the
Page 170 U. S. 55
state may impose, there is a vast number of which, from their
nature, no notice can be given to the taxpayer, nor would notice be
of any possible advantage to him -- such as poll taxes, license
taxes, and generally specific taxes on things, or persons, or
occupations. In such cases, the legislature, in authorizing the
tax, fixes its amount, and that is the end of the matter. If the
tax be not paid, the property of the delinquent may be sold, and he
be thus deprived of his property. Yet there can be no question that
the proceeding is due process of law, as there is no inquiry into
the weight of evidence, or other element of a judicial nature, and
nothing could be changed by hearing the taxpayer. No right of his
is therefore invaded."
Similar views have prevailed in most of the state courts, but
instead of citing the cases, we shall content ourselves with
referring to the conclusions reached by two text writers of high
authority.
In Cooley on Taxation 447, the following conclusions, from many
cases, are stated:
"(1) The major part of the cost of a local work is sometimes
collected by general tax, while a smaller portion is levied upon
the estates specially benefited."
"(2) The major part is sometimes assessed on estates benefited,
while the general public is taxed a smaller portion in
consideration of a smaller participation in the benefits."
"(3) The whole cost in other cases is levied on lands in the
immediate vicinity of the work."
In a constitutional point of view, either of these methods is
admissible, and one may be sometimes just and another at other
times. In other cases, it may be deemed reasonable to make the
whole cost a general charge, and levy no special assessment
whatever. The question is legislative, and, like all legislative
questions, may be decided erroneously, but it is reasonable to
expect that, with such latitude of choice, the tax will be more
just and equal than it would be were the legislature required to
levy it by one inflexible and arbitrary rule.
In Dillon's Municipal Corporations, vol. 2, § 752, 4th ed., the
conclusions reached are thus expressed:
Page 170 U. S. 56
"The courts are very generally agreed that the authority to
require the property specially benefited to bear the expense of
local improvements is a branch of the taxing power, or included
within it. Whether the expense of making such improvements shall be
paid out of the general treasury or be assessed upon the abutting
property or other property specially benefited, and, if in the
latter mode, whether the assessment shall be upon all property
found to be benefited or along upon the abutters according to
frontage or according to the area of their lots is, according to
the present weight of authority, considered to be a question of
legislative expediency."
It is well settled by repeated decisions of this Court that the
power of Congress to exercise exclusive jurisdiction in all cases
whatever within the District includes the power of taxation.
Loughborough v.
Blake, 5 Wheat. 317;
Willard v.
Presbury, 14 Wall. 676;
Shoemaker v. United
States, 147 U. S. 282;
Bauman v. Ross, 167 U. S. 548;
Wilson v. Lambert, 168 U. S. 611.
Our conclusion is that it was competent for Congress to create a
general system to store water and furnish it to the inhabitants of
the District, and to prescribe the amount of the assessment and the
method of its collection, and that the plaintiff in error cannot be
heard to complain that he was not notified of the creation of such
a system or consulted as to the probable cost thereof. He is
presumed to have notice of these general laws regulating such
matters.
The power conferred upon the commissioners was not to make
assessments upon abutting properties, nor to give notice to the
property owners of such assessments, but to determine the question
of the propriety and necessity of laying water mains and water
pipes and of erecting fire plugs and hydrants, and their
bona
fide exercise of such a power cannot be reviewed by the
courts.
Another complaint urged is that the assessment exceeded the
actual cost of the work, and this is supposed to be shown by the
fact that the expense of putting down this particular main was less
than the amount raised by the assessment.
Page 170 U. S. 57
But this objection overlooks the fact that the laying of this
main was part of the water system, and that the assessment
prescribed was not merely to put down the pipes, but to raise a
fund to keep the system in efficient repair. The moneys raised
beyond the expense of laying the pipe are not paid into the general
treasury of the District, but are set aside to maintain and repair
the system, and there is no such disproportion between the amount
assessed and the actual cost as to show any abuse of legislative
power.
A similar objection was disposed of by the Supreme Judicial
Court of Massachusetts in the case of
Leominster v.
Conant, 139 Mass. 384. In that case, the validity of an
assessment for a sewer was denied because the amount of the
assessment exceeded the cost of the sewer, but the court held that
the legislation in question had created a sewer system, and that it
was lawful to make assessments by a uniform rate which had been
determined upon for the sewerage territory.
In
Hyde Park v. Spencer, 118 Ill. 446, and other cases,
the Supreme Court of Illinois held that a statutory assessment to
defray the cost, maintenance, and keeping in repair of a drainage
system was valid.
The other contentions made on behalf of the plaintiff in error
are covered by the observations already made.
The judgment of the Court of Appeals is accordingly
Affirmed.
