Under the Act of February 9, 1893, c. 74, § 8, 27 Stat. 436,
appeals from and writs of error to the Court of Appeals of the
District of Columbia are governed by § 705, Rev.Stat., as to
procedure, and by §§ 997 and 1012, Rev.Stat., as to filing the
transcript and assignment of error as from a Circuit Court.
Rule 35 refers in terms only to writs of error and appeals under
§.5 of the Court of Appeals Act of March 3, 1891, but, by Rule 21,
it is in effect extended to every writ of error and appeal, and
although errors may not be assigned on a writ of error to the Court
of Appeals of the District of Columbia, the court is not under
obligation to dismiss the writ in case the assignment of errors is
not filed as required by §§ 997 and 1012, Rev.Stat., having by its
rules reserved the option to notice plain error whether assigned or
not.
In this case, the court exercises the option reserved under
Rules 3. and 21 to examine the record to ascertain if there are
errors not assigned as required by §§ 997, 1012, Rev.Stat., but so
plain as to demand correction.
Under the complete jurisdiction which the United States
exercises over the District of Columbia, it is within the power of
Congress to arbitrarily fix a minimum amount to be assessed for
benefits on property within the assessment district of a street
opening proceeding, and so held as to Act of June 6, 1900, c. 810,
31 Stat. 668, as to the opening of extension of Eleventh
Street.
Where Congress passes an act superseding a former act in regard
to condemnation proceedings and providing for a reassessment of
benefits, the reassessment is a continuance of the proceeding under
the former act, and not a new proceeding, and the assessment
for
Page 217 U. S. 548
benefits is not barred by the statute of limitations if the
proceeding was commenced in time under the original act.
Objections to qualifications of jurors and their examination and
oath in condemnation proceedings must be taken at the time.
That counsel was not present when they were accepted and sworn
does not invalidate the impaneling of the jury if the statute does
not so provide.
On condemnation proceedings where the statute directs the court
to follow the procedure prescribed for other proceedings, the court
will properly vary the oath so as to relate to the property
involved, and not to the property in the other proceedings, and if
the bill of exceptions does not show that the essential matters
were omitted from the oath, the presumption is that the statutory
oath was complied with as far as applicable to the proceeding in
which it was administered.
Where a verdict of damages and benefits is set aside as to
benefits and a reassessment ordered, the remainder of the verdict
as to damages alone does not stand as
res judicata that
the property is damaged and there are no benefits that can be
assessed under a subsequent act as to procedure for reassessment of
benefits.
Where doubt as to meaning of one part of the charge is
eliminated by other parts of the charge, there is no reversible
error.
Where the jury in a condemnation proceeding exercises its own
judgment derived from personal knowledge from viewing the premises
and from expert opinion evidence not taken in presence of the
court, the power of the court to review the award is limited to
plain errors of law, misconduct or grave error of fact indicating
partiality or corruption, and the court is not required to review
all the evidence taken before the jury in order to determine
whether the award is unreasonable or unjust where no specific wrong
or injustice is pointed out.
Where the evidence in a condemnation proceeding is not before
this Court and there is no agreed statement of facts, this Court
cannot determine that the trial court erred in holding the award of
the jury made on viewing the premises and expert evidence not so
unreasonable or unjust as to require a new trial before another
jury.
31 App.D.C. 112 affirmed.
The facts are stated in the opinion.
Page 217 U. S. 549
MR. JUSTICE LURTON delivered the opinion of the Court.
In 1899, the then Commissioners for the District of Columbia
filed a petition in the Supreme Court of the District for the
condemnation of land necessary for the extension of Eleventh Street
Northwest. In due course, the statutory jury of seven filed an
award of damages and of benefits. The verdict was confirmed so far
as it awarded damages for the property, but was disaffirmed and
vacated as to the amount of benefits. The award, so far as it
assessed the damages, was accepted, and the money has long since
been paid, but from the order setting aside or vacating the
assessment of benefits, the Commissioners appealed to the Court of
Appeals of the District, where that order was reversed, and the
proceeding remanded to the lower court with direction to vacate the
order setting aside the amount of benefits, "and for such further
proceedings in the case, according to law, as may be just and
right." The Supreme Court of the District, on March 4, 1904, in
obedience to the mandate of the Court of Appeals, set aside its
former order vacating the assessment of benefits by the jury, and
thereupon heard the matter upon exceptions of the defendants to the
award, and upon the motion of the petitioners for a confirmation of
the award of benefits. Whereupon an order was made denying
confirmation, and ordering that,
"in case the petitioners desire to proceed further in the
premises, they shall, within a reasonable time, make application to
this Court for directions to the marshal to summon a jury of
twelve, as provided by law."
From this order refusing confirmation, the petitioners prayed an
appeal, but did not perfect same. The next step in the case was
taken on June 17, 1904, when the landowners moved the court
Page 217 U. S. 550
to dismiss the proceeding, assigning as reason therefor that
"the law under which such proceeding must be had has been
repealed," and, second, "for failure of petitioners to proceed as
required by the order of this Court of March 4, 1904." Upon this
motion, the court, on June 17, 1904, made an order in these
words:
"Upon consideration of the proceedings herein and the motion
filed by Abner Greenleaf and others on June 17th, A.D.1904, it is
by the court, this 17th day of June, A.D. 1904, ordered, that the
petitioners in the above-entitled cause, within sixty days from the
date hereof, proceed in the matter of the reassessment of benefits
herein, in accordance with the terms and provisions of the Act of
Congress approved June 6, 1900, entitled, 'An Act for the Extension
of Columbia Road East of Thirteenth Street, and for Other
Purposes.'"
Thereupon the then Commissioners, in continuance of the old
proceeding under the Act of March 3, 1899, 30 Stat. 1344, c. 431,
filed an amended and supplementary proceeding according to the
terms of the later act of June 6, 1900, 31 Stat. 668, c. 809, in
which, after setting out all of the proceedings under the pending
petition, they prayed for a reassessment of benefits against
abutting and adjacent owners whose lands had not been assessed for
benefits as required both under the former and later acts of
Congress in respect to the extension of Eleventh Street Northwest.
Under this amended petition, a jury of seven was impaneled who
returned as assessment of benefits against the plaintiffs. This,
after exceptions had been overruled, was confirmed. A writ of error
was taken by the plaintiffs in error to the Court of Appeals for
the District of Columbia, where the judgment of the Supreme Court
was affirmed. Thereupon this writ of error was sued out.
This protracted litigation is now before us, unaccompanied by an
assignment of errors.
Page 217 U. S. 551
The Act of February 9, 1893, c. 74, § 8, 27 Stat. 436,
concerning writs of error and appeals from the Court of Appeals of
the District of Columbia, provides that they shall be allowed in
the
"same manner and under the same regulations as heretofore
provided for in cases of writs of error on judgments or appeals
from decrees rendered in the Supreme Court of the District of
Columbia."
The procedure referred to is that found in § 705, Rev.Stat.,
which provides that such writs or appeals shall be allowed in
the
"same manner and under the same regulations as are provided in
cases of writs of error on judgments or appeals from decrees
rendered in a circuit court."
Sections 997 and 1012, Rev.Stat., require the transcript from
the circuit court to be filed with an assignment of error, and the
thirty-fifth rule of this court prescribes the character of such
assignments, and that "no writ of error or appeal shall be allowed
until such assignment of errors shall have been filed, . . ." and
that "errors not assigned according to this rule will be
disregarded; but the court at its option, may notice a plain error
not assigned." This rule refers in terms only to writs of error and
appeals under § 5 of the Act of March 3, 1891, but it is in effect
extended to every writ of error or appeal to or from any court by
Rule 21, which requires that the brief shall set out "a
specification of the errors involved." This "specification of
error" must conform to Rule 35 in particularity. Thus, the fourth
paragraph provides:
"When there is no assignment of errors, as required by § 997 of
the Revised Statutes, counsel will not be heard, except at the
request of the court, and errors not specified according to this
rule will be disregarded; but the court at its option, may notice a
plain error not assigned or specified."
The court has, however, not regarded itself as under any
absolute obligation to dismiss a writ of error or appeal
Page 217 U. S. 552
because of the nonassignment of errors, as required by §§ 997
and 1012, Rev.Stat., having, by its rules, reserved the option to
notice a plain error, whether assigned or not.
Ackley School
District v. Hall, 106 U. S. 428;
Farrar v. Churchill, 135 U. S. 609,
135 U. S. 614;
United States v. Pena, 175 U. S. 500,
175 U. S.
502.
In the present case, the brief of counsel for the plaintiffs in
error specifies ten alleged errors. The defendants in error have
made no objection for failure to assign error under §§ 997 and
1012, Rev.Stat., but have submitted the case upon the
specifications of error in the brief of the plaintiffs in error.
For these reasons, we shall exercise the option reserved under both
Rules 21 and 35 of examining the transcript, that we may be advised
as to whether there has occurred any "plain error" which obviously
demands correction.
1. Did the court err in allowing an assessment of benefits under
the Act of June 6, 1900? We think not. Under the proceedings had
theretofore under the Act of March 3, 1899, there had resulted a
condemnation of the land needed for the extension of Eleventh
Street Northwest, and an assessment of damages sustained by the
landowners, which award had been confirmed and the money paid. But
that act provided
"that of the amount found due and awarded as damages for and in
respect of the land condemned under this section for the opening of
said streets, not less than one-half thereof shall be assessed by
the jury in said proceedings against the pieces and parcels of
ground situate and lying on each side of the extension of said
streets, and also on all or any adjacent pieces or parcels of land
which will be benefited by the opening of said streets, as herein
provided."
Objection to this arbitrary fixing of the minimum amount to be
assessed for benefits upon lots benefited by the opening of the
street was considered, and the act sustained as within the complete
jurisdiction which
Page 217 U. S. 553
the United States possesses over the District of Columbia, in
the case of
Wight v. Davidson, 181 U.
S. 371. The benefits assessable under that act were
separately found as against each parcel of property supposed to be
benefited, but that part of the award of the jury was vacated upon
the erroneous supposition that the rule for assessment of benefits
in the act was void. This action of the district court, as we have
already seen, was reversed. Thereupon the district court denied the
motion of the Commissioners to affirm the verdict of the jury
assessing benefits. In this situation, it was open to the
Commissioners to apply for another jury. Before they did so, the
special act of June 6, 1900, was passed. The effect of the action
of the court in refusing to confirm the first assessment of
benefits was to make void the award and verdict of the jury insofar
as that verdict had separately found the benefits accruing to the
property by the extension of the street. The Commissioners were
therefore complying with the direction to them found in the twelfth
section of the Act of Congress of June 6, 1900. That act provided
that the Commissioners should make application to the Supreme Court
of the District of Columbia "for the final ratification and
confirmation of the awards of the jury for and in respect to the
land condemned for the extension of Eleventh Street," etc. And
"in the event that the assessments for benefits levied by the
jury in relation to said Eleventh Street shall for any reason be
declared void, the said Commissioners . . . are authorized and
directed to make application to said court for a reassessment of
such benefits, under and in accordance with the provisions of this
act."
The procedure under this act differs in many particulars from
that under the Act of 1899. In view of this, the property owners,
on June 17, 1904, moved the court to dismiss the old proceeding,
basing the motion, as shown by the entry upon the journal of the
court, upon the contention that
Page 217 U. S. 554
"the law under which such proceeding must be had has been
repealed," and "for failure of the petitioners to proceed as
required by the order of this Court," of March 4, 1904. Thereupon
the court made the order heretofore set out, requiring a
reassessment of benefits under the later act.
There is no possible doubt as to the correctness of this order.
The new act superseded the former act insofar as the reassessment
of benefits was concerned. Both parties seemingly concurred in
assuming that this was the case, and that the refusal of the court
to confirm the original assessment of benefits was an annulment of
the award of benefits by the first jury. The order was in part
based upon the motion of the plaintiffs in error, and was made
without protest or objection, and none was suggested for more than
a year. Such a reassessment was but a continuance of the original
proceeding, which might well be done by an amended or supplementary
petition by virtue of the authority of the new act. This disposes
also of the contention that the proceeding for reassessment of
benefits was barred by the statute of limitations of three years.
The proceeding for reassessment was not a new action, but a
continuance of the old one, and therefore not subject to the
operation of the statute.
2. Coming now to the errors assigned upon the procedure under
this petition for a reassessment of benefits. The first objection
is that the court did not examine the jurors as to whether they
possessed the qualifications required by § 4 of the new act, nor
administer to them the oath required by the statute under which the
court was proceeding.
These objections come too late. The statute made it the duty of
the court to hear objections to jurors "before accepting them."
None was made. So with the oath; if that administered departed in
any particular from
Page 217 U. S. 555
the terms of the statute, objection should have been made at the
time. None was made, and only after the verdict was any made. The
journal entry, moreover, recites that the jurors summoned by the
marshal, under the order theretofore made, were "accepted as
qualified," and that the oath was administered to them "in
accordance with the provisions of the Act of Congress of June 6,
1900." It is now sought to contradict the record by a statement
contained in a bill of exceptions allowed after final judgment,
that counsel for the plaintiffs in error was not present when the
order of record was made and the jury accepted and sworn, and that,
after they had been so accepted and sworn, counsel was denied the
right to examine the jurors as to their qualifications. In respect
to the oath administered, the bill of exceptions contains the
meager statement that the jurors were sworn to "assess the benefits
accruing to the property abutting or adjacent to Eleventh Street
extended, according to the statute."
The oath which is required to be administered by § 4 of the Act
of June 6, 1900, under which the court was proceeding, was an oath
applicable only to the condemnation of land for an extension of the
Columbia road, and the jury were to be sworn to
assess the
damages and benefits resulting from the extension of that
road. Such an oath in the present case, when only benefits
were to be assessed for property already taken and paid for,
upon another street altogether, was, of course, not
applicable. The court, in such circumstances, required as it was to
follow the procedure of the Columbia road statute, was perfectly
justified in swearing the jury to assess benefits to the property
concerned in this proceeding. True, the oath prescribed by § 4
includes an affirmation that the jury was disinterested and
unrelated, and would act without favor or partiality; but the
statement in the bill of exceptions does not show that these
matters were omitted from the oath, and the presumption remains
that the
Page 217 U. S. 556
statutory oath was followed as far as applicable, which is the
implication from the journal entry.
As to the qualifications of the jurors: primarily, they had been
summoned, as shown by the order to the marshal and his return, as
men having the statutory qualifications. The journal recites that
the court "accepted them as qualified." No hint is found in this
transcript that they were not qualified, or that they were guilty
of any misconduct. Not having asked the court to examine them
before accepting them, or to be then permitted to qualify them, it
was not reversible error to deny the privilege after they had been
sworn and accepted. That counsel was not present when they were
accepted and sworn does not invalidate the impaneling of the jury.
Under the statute and the warning order, the parties interested
were required to be present and "continue in attendance" until the
matter was ended.
3. It is assigned as error that the court erred in overruling
the plea of
res judicata as to Lots 1 and 30 in Block 27,
and Lots 1 to 16 in Block 28. The plea was not good.
The first jury, that which, under the Act of March, 1899,
assessed both damages and benefits, was, under that act, required
to award damages not only for land taken for the extension of the
street, but also damages to the remainder of the land by being left
high above or below the grade. The then owners of these lots were
awarded such grade damages to land not taken, which award has been
confirmed and paid. But the same jury, as they were instructed to
do, assessed the benefits sustained to the remainder, not taken,
separately. This part of the verdict was set aside, so that, as it
stands, the plaintiffs have been paid the damages sustained to the
property not taken by reason of the grade resulting, but have never
been assessed for the benefits accruing to the same untaken
remainder. It is now said that the confirmation of the amount of
damages is an adjudication
Page 217 U. S. 557
that the lots not taken were damaged, and not benefited. But
that is not the legal construction of the judgment, for the real
damages have never been reduced by the benefits, which the statute
says shall not be less than fifty percent of the damages sustained.
The former judgment was conclusive only as to the damages, and that
has not and could not be reopened. The benefits, having been
separately stated in that verdict, remained to be determined, and
were properly reassessed under the later act of Congress.
4. Alleged error in instructions given or refused.
The sixth assignment noticed in the brief is error in giving the
first instruction asked by the Commissioners. This request was in
these words:
"It is the duty of the jury to consider and assess the benefits
which have resulted to the pieces or parcels of land on each side
of Eleventh Street Northwest, as extended from Florida Avenue to
Lydecker Avenue, and the benefits which have resulted to any and
all other pieces or parcels of land from the extension, and in
determining the amounts to be so assessed against said pieces or
parcels of land, the jury shall take into consideration the
respective situations of the said pieces or parcels of land, and
the benefits that they have severally received from said extension
of said Eleventh Street. By extension of the street, the jury are
to understand its establishment, laying out, and completion for all
the ordinary uses of a public thoroughfare, or highway."
The objection to this seems to be that the jury was not limited
to the benefits resulting immediately from the opening of the
street, but might consider all enhancement which might come from
subsequent improvement of or upon the street. But this was not the
whole of the instruction of the court upon that subject, and any
doubt as to what the court did mean was eliminated by other parts
of the charge. Thus, the court said that to lay an
Page 217 U. S. 558
assessment for benefits against any piece of land abutting upon
said street or adjacent thereto, the jury must find that the
benefits upon which such assessment is based was brought about by
the extension of said street, and not by any improvement made since
it was extended, or by the extension of car lines in said street.
Again, the court said that such benefits must accrue "immediately
from the extension of the street in question." This was repeated
when it was said that "the benefit assessable must be an
enhancement in value immediately upon the opening and extension of
said street," and that they had
"no right to consider any enhancement or increase in value that
is the result of any special improvements made on the street after
it was opened and established, as previously stated."
There is no reason for doubting the meaning of the court.
The several requests made by the plaintiffs in error were
sufficiently covered by the charge as given.
5. The next specification of error in the brief is in these
words: "The court erred in refusing to review the evidence taken
before the jury, and to determine if the verdict was unjust and
unreasonable." The Act of June 6, 1900, under which the court was
proceeding, required the jury to go upon and view the premises, and
then to hear and receive such evidence as might be offered, in the
presence of the court, or otherwise, as the court might direct, and
to then return the majority verdict as to the amount of benefits
against the property involved. In this case, the evidence was not
heard by the jury in the presence of the court, that being
according to the order of the court.
The act further provides that
"the court shall have power to hear and determine any objections
which may be filed to said verdict or award, and to set aside and
vacate the same, in whole or in part, when satisfied that it is
unjust or unreasonable, and in such event a new jury
Page 217 U. S. 559
shall be summoned, who shall proceed to assess the damages or
benefits, as the case may be,"
etc.
This specification of error has for its foundation the
concluding paragraph of the bill of exceptions, as follows:
"The foregoing substance of the testimony taken before the said
jury as abstracted by the appellant from the testimony filed as an
affidavit in the case by order of the court. After the counsel had
argued the case upon the propositions of the law raised by the
exceptions, counsel for the appellant, in support of its motions
and exceptions, offered to read to the court the said testimony,
but the court declined to hear the same or consider it at the time
in full, counsel saying that it would be his purpose to consider
the same if the court found, after consideration, the propositions
of the law were against the appellant. But counsel had no further
opportunity to argue said case on the evidence, and without reading
the evidence, or hearing it fully read, the court passed an order
overruling all the exceptions, and confirming said verdict, and
refused to consider said testimony any further, and the appellant
excepted."
"And thereupon the appellant presented to the court, the justice
who presided at the hearing of this case, and made the rulings
herein referred to, this, its bill of exceptions, containing the
proceedings before the court and before the jury or commission,
with the substance of the evidence taken before the said jury, and
the affidavits filed in the case subsequent thereto, as herein
referred to, with the exceptions as therein noted, which were duly
taken by the appellant separately, in the order in which they
appear, and allowed by the court at the time."
The certificate was in these words:
"And the said appellant, by its counsel, prays the court to sign
and seal this, its bill of exceptions, and make the same a part of
the record in this case, which is now accordingly done, and the
said bill of exceptions is here
Page 217 U. S. 560
now signed and sealed in due form and made a part of the record
in this case this 14th day of August, 1907,
nunc pro
tunc."
Why the court should be required to read, or hear read, "in
full," a paper which was confessedly but the substance of the
testimony taken before the jury, as "abstracted by appellants from
the testimony filed as an affidavit in the case," we are at a loss
to know. The power of the court to review the award by such a jury
must, in the very nature of the matter, be limited to plain errors
of law, misconduct, or grave error of fact indicating plain
partiality or corruption. The jury saw and heard the witnesses; the
court did not. The jury went upon and viewed the premises; the
court did not. The duty to review did not involve mere error in
judgment as to the extent of enhancement in value, for the judgment
of the jury manifestly rested upon much which could not be brought
before the court. The jury was expected to exercise its own
judgment, derived from personal knowledge from a view of the
premises, as well as from the opinion evidence which might be
brought before them.
Shoemaker v. United States,
147 U. S. 282. No
specific wrong, injustice, or error is pointed out. Even if we had
all of the evidence before us, it would not be within our province
to weigh it. But we have not, nor is there, any agreed statement of
facts. It is impossible for us to say, therefore, whether the trial
court erred in holding the award not unreasonable, or so unjust as
to require a new trial before another jury. Other matters
complained of in argument need not be specifically referred to.
We find no error, and the judgment is
Affirmed.