Sections 997 and 1012, Rev.Stat., and Rule 35 of this Court,
require assignments of error and apply to appeals from courts of
the District of Columbia. Realty Co. v. Rudolph,
217 U. S. 547
assignment in the brief is not sufficient.
This Court, under Rule 21, can, and in this case, as the appeal
was taken before the decision in Realty Co. v. Rudolph,
will, notice a plain error of fact even if unassigned.
Whether a special assessment for benefits of a street opening is
excessive is a question of fact. English v. Arizona,
214 U. S. 359
Congress, under its wide legislative power over the District of
Columbia, may create a special assessment district and charge a
part or all of the cost of a public improvement upon the property
therein according to the benefits received.
Where, as in this case, the court is possessed of statutory
jurisdiction and all the essential facts appear to have existed,
the judgment is no more subject to collateral impeachment than one
entered in exercise of general jurisdiction.
Although the court could have, on motion of the dissatisfied
owner, set the assessment in a special proceeding aside, and
ordered a new trial, if the owner failed to take the proceedings
provided by the statute, and the court had jurisdiction of the
parties and subject matter, the judgment cannot be attacked
collaterally in a suit to enjoin sale under the judgment of
The Act of February 10, 1899, 30 Stat. 834, c. 150, extending
Rhode Island Avenue and authorizing assessments for benefits on
property within the assessment district created by the act, is not
unconstitutional as depriving owners within the district of their
property without due process of law either because not providing
sufficient notice or as arbitrarily assessing one-half the damages
upon property within the designated district.
32 App.D.C. 167 affirmed.
Page 221 U. S. 548
The facts, which involve the validity of a street opening
assessment in the District of Columbia, are stated in the
MR. JUSTICE LURTON delivered the opinion of the Court.
This is a bill filed by a lot owner whose property was subjected
to a special assessment for benefits resulting from the extension
of Rhode Island Avenue in the City of Washington. The object of the
bill is to vacate the assessment and enjoin the sale about to be
made by the commissioners for the District.
The case was heard upon the bill, answer, and an agreed
statement of facts, and was dismissed without prejudice to proceed
in the case in which the assessment had been made for cancellation,
if so advised.
The proceeding under which the special assessment in question
was instituted in March, 1899, was in pursuance of authority
conferred by an Act of Congress of February 10, 1899, entitled, "An
Act to Extend Rhode Island Avenue." 30 Stat. p. 834, c. 150. That
act provided that one-half of the amount awarded as damages should
be assessed against the lands within an area described, as
benefits, considering the benefits received by each lot within the
area. Such assessments were declared a lien on the lots severally
assessed, and were to be collected as special improvement taxes in
five equal installments, with interest at four percent until paid.
The lot owners were not formally notified, but notice was given by
publication to all property owners, as required by the statute.
Following the act, a jury of seven was appointed, who viewed the
property and assessed damages and benefits; the lot owned
Page 221 U. S. 549
by this appellant being assessed for benefits in the sum of
$1,000. A rule was then made requiring all persons whose lots had
been so assessed to appear and show cause why the verdict of the
jury of seven should not be confirmed. The appellant appeared and
filed a number of objections, which may be shortly stated as
That the Act of Congress is unconstitutional, as not
providing for notice, and as an arbitrary assessment of one-half of
the damage upon lots in a designated area.
That the assessment against the appellant was
excessive, unjust, and an unequal apportionment of benefits.
Want of notice and opportunity to appear and be
heard by the court or the said jury of seven, and want of notice as
to any of the proceedings until cited to show cause why the verdict
of the jury should not be confirmed.
These objections were overruled, and the verdict and assessment
confirmed. This final judgment was on June 27, 1900. Like
objections by other lot owners assessed for benefits were filed and
overruled at the same time.
From this action of the Supreme Court of the District, an appeal
was prayed, but never prosecuted. More than two years thereafter,
the commissioners advertised the lot, and proceeded to sell the
same to enforce payment of the whole amount of the assessment.
Thereupon this bill was filed.
There is no assignment of errors, as required by §§ 997 and
1012, Rev.Stat. and by Rule 35 of this Court. These statutes and
the rule apply to appeals from the courts of the District of
Columbia, as we pointed out in the case of Columbia Heights
Realty Co. v. Rudolph, 217 U. S. 547
assignment in the brief of appellant seems to have been regarded by
many members of the District bar as sufficient. That erroneous
practice has been followed here, and three errors have been
assigned, though in
Page 221 U. S. 550
substance there are but two. One is that the Act of February 10,
1899, for the extension of Rhode Island Avenue, is
unconstitutional. The other is, that the judgment confirming the
assessment made by a jury of seven over the objection of the
appellant is void, and conferred no authority to enforce by sale
the assessment so made.
This appeal was taken prior to the warning contained in the
Columbia Heights Realty Company
case. For this reason, we
shall avail ourselves of the provision in the 21st rule of this
Court, by which we reserve the right to "notice a plain error," not
because we assume the errors assigned in the brief to be "plain,"
but that questions of such gravity may not be passed without
notice, in view of the practice heretofore prevailing in the courts
of the District of Columbia.
The objection to the constitutionality of the Act of February
10, 1899, as stated in appellant's brief, is
"that it authorizes an assessment of appellant's property to
meet the cost of public improvements in substantial excess of the
special benefits conferred by the improvements, and, to the extent
of such excess, confiscates appellant's property to public use
If by this it is meant to say that the act upon its face
authorizes an assessment for benefits in excess of actual benefits
conferred, the objection is not tenable. There is nothing upon the
face of the act to indicate that one-half of the damage awarded to
those owners whose property is taken for the extension of the
street is an amount in substantial excess of the special benefits
realized by owners of property in the special improvement district
created by the act. If, on the other hand, it is meant that, as
matter of fact, the assessment against owners assumed to be
benefited is so excessive as compared to actual benefits as to
amount to a taking of such excess for public purpose without
compensation, then there is no evidence in the
Page 221 U. S. 551
record bearing upon the subject. The question of the
excessiveness of a special assessment for benefits resulting from a
public street improvement is one of fact. English v.
Arizona, 214 U. S. 359
That Congress, under its wide legislative power over the
District of Columbia, may create a special improvement district and
charge a part or all of the cost upon the property in that
improvement district can hardly be doubted. It would be but an
exercise of the power of taxation for a public purpose in an area
carved out for the purpose. In Webster v. Fargo,
181 U. S. 394
was held that a state might create such special taxing districts
and charge the whole or part of the cost of a local improvement
upon the property in the district either according to valuation,
superficial area, or frontage. That it is within the power of
Congress to create such a special improvement district and charge
the cost of an improvement therein according to the benefits
received by property within such district has been more than once
affirmed. Bawman v. Ross, 167 U.
; Wight v. Davidson, 181 U.
; Martin v. District of Columbia,
205 U. S. 135
Columbia Heights Realty Co. v. Rudolph, 217 U.
When, as under the act for the extension of Rhode Island Avenue,
only one-half of the cost is to be charged upon lot owners within
the improvement district, and that upon each lot owner in
proportion to the benefit his property has received, the question
of whether one such owner has been assessed beyond his proportion
is one of fact, and does not touch the validity of the improvement
act. This appellant was an owner within the special improvement
district. That he was benefited to the extent of $1,000 has been
determined by the confirmed verdict of the jury, which was charged
with the duty of proportionately distributing that part of the
damages which Congress required to be paid by owners within the
Page 221 U. S. 552
The other matter to be noticed is the contention that the sale
to enforce the lien of the assessment is under an absolutely void
judgment of the Supreme Court of the District of Columbia. The
claim is that, when the appellant appeared under a citation to show
cause why the verdict of the jury of seven should not be confirmed,
and filed objections to the verdict, that it was the duty of the
court to have ordered a jury of twelve for a reexamination of the
matter. The section under which this contention is made prescribes
the method to be pursued for the assessment of damages to
landowners when land is taken or damaged for public roads. If an
owner object to the laying out or extension of the road or street,
and the damages are not agreed upon, a jury of seven is to be
impaneled who are to go upon the premises and assess the damages,
and this assessment is to be reduced to writing and signed by the
jury, attested by the marshal, returned into court, and
Section 263 of the Revised Statutes, relating to the District of
Columbia, provides that "if the authorities or any owner of the
land are dissatisfied with the verdict," etc., the marshal shall be
ordered to summon a second jury of twelve, who are to give the
parties notice and meet on the premises, "and proceed as before
directed in regard to the first jury."
The exceptions filed by the appellant, and others included in
same verdict, have elsewhere been stated. These were overruled and
the assessment confirmed as made, and certified for collection. An
appeal was prayed and granted, but not prosecuted, because of a
stipulation that it should "abide by the decision of the Supreme
Court of the United States in the pending case of Wight v.
" since decided and reported in 181 U.
. That decision was adverse upon every question
common to the two cases. After the decision and after the time had
elapsed for any error proceeding, the Commissioners of the
Page 221 U. S. 553
District proceeded to advertise a sale of the lots so specially
assessed for the collection of the amount. Thereupon this bill was
filed and the sale has ever since stood enjoined.
Wight v. Davidson
did not present one question which is
presented here -- namely, that it was the duty of the nisi
court, upon the presentation of the objection which
challenged the assessment upon this owner's property by the first
jury as excessive, to have at once directed the calling of a second
jury, under § 263, Revised Statutes, relating to the District of
Columbia. It is not necessary to consider the effect of the
stipulation to abide by the result of the appeal in that case, as
foreclosing the question stated, inasmuch as we are clearly of
opinion that the failure of the Supreme Court of the district to
order a second jury was, at most, an error which can only be
available in appropriate error proceedings. It is, however, in this
connection just to say that the record in the case fails to show
that the court was asked for such second jury. The duty, if it
existed without such motion, arose from the fact that the
exceptions challenging the amount of the assessments constituted a
statement that the owner, within the meaning of § 263, "was
dissatisfied with the verdict thus rendered," and therefore
entitled without more to another jury. But the court was possessed
of jurisdiction over the parties and over the subject matter. If
the owner assessed did not in some way take steps to set aside the
first verdict, its confirmation would necessarily be final. If he
was denied a second jury when entitled to it, the court would fall
into error, but the order confirming the assessment would not be
void. There is no possible ground for upholding the present
collateral attack if the order was voidable only.
The court was in the exercise of a special statutory
jurisdiction, but all the facts necessary to the exercise of that
jurisdiction appear to have existed, and such a judgment
Page 221 U. S. 554
is no more subject to collateral impeachment than if the court
had been exercising its general jurisdiction. Secombe v.
23 Wall. 108; Fauntleroy v.
Lum, 210 U. S. 230
210 U. S. 234
United States Use of Hine v. Morse, 218 U.
We find no error in the decree dismissing the bill for which we
should reverse, and the decree is therefore