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U.S. Supreme Court

District of Columbia v. Brooke, 214 U.S. 138 (1909)

District of Columbia v. Brooke

No. 117

Argued April 7, 1909

Decided May 17, 1909

214 U.S. 138


Where no objection was made to a technical defect in the return which could have been rectified by amendment had attention seasonably been called thereto, a party who, as disclosed by the record, was not prejudiced, cannot raise the objection at a later date.

Quaere whether there is any distinction between "a parcel" and "a letter" that renders defective a return showing service of statutory notice by mail.

A property owner cannot urge against a statutory drainage system the nonexistence of the necessity for drainage, or the fact that he had adopted a system of his own which is either sufficient or better than that required by the law. Such a contention would deny to Congress the right to create any drainage system for the District of Columbia.

The mere existence of dwelling houses, whether occupied or not, indicates the necessity for drainage, and the owner is not deprived of his property without due process of law by a compulsory drainage act because the house happens to be unoccupied at the time.

The police power is one of the most essential of governmental powers, chanrobles.com-red

Page 214 U. S. 139

at times one of the most insistent, and always one of the least limitable.

A wide range of discretion is necessary to make legislation practical, and the courts cannot be made a refuge from ill advised, unjust or oppressive laws.

Quaere, and not decided, whether there is any prohibition on Congress from enacting discriminatory legislation and whether, in the absence of any express prohibition to that effect, any prohibition can be implied, especially in regard to the exercise of police power in the District of Columbia. See United States v. Delaware & Hudson Co., 213 U. S. 366, as to power of Congress to enact discriminatory legislation under the commerce clause of the Constitution.

If the power of Congress to enact discriminatory legislation as to the District of Columbia is limited either expressly or by implication, the prohibition cannot be stricter or more extensive than the due process and equal protection clauses of the Fourteenth Amendment are upon the states.

The Fourteenth Amendment does not deprive the states of the power of classification or require the classification to be logically or scientifically accurate, and sufficient practical reasons exist for a classification of resident and nonresident property owners in the enforcement of police regulations, provided that the act is impartial as between the classes. Field v. Barber Asphalt Co., 194 U. S. 618.

While the enforcement of a statute enacted under the police power by criminal proceedings against resident owners, and by civil proceedings against nonresident owners, is a discrimination, if, as in this case, it is justified by the circumstances, it does not render the statute unconstitutional, nor is it so rendered by the fact that the remedy as to one class may be more efficient than the remedy as to the other.

In determining whether a statute is constitutional, suppositions and questions which might possibly arise, but which have not arisen, will be answered when they do arise and affect the operation of the statute.

The Act of May 19, 1896, c. 206, 29 Stat. 125, providing for the drainage of the District of Columbia, is not unconstitutional as depriving nonresident owners of their property without due process of law or denying them the equal protection of the law on account of the different methods provided for enforcing the law against resident and nonresident owners.

29 App.D.C. 563 reversed.

This writ was issued to review a judgment of the Court of Appeals, affirming a judgment of the Supreme Court, quashing chanrobles.com-red

Page 214 U. S. 140

and vacating certain proceedings taken for the assessment of a drainage tax upon the property of defendant in error, under the authority of an Act of Congress of May 19, 1896 -- "An Act to Provide for the Drainage of Lots in the District of Columbia." 29 Stat. 125, c. 206.

The act provides (1) that each original lot or subdivisional lot in the District of Columbia where there is a public sewer shall be connected with such sewer, and where there is a water main, connected with such water main, under certain conditions, which are enumerated. (2) It is made the duty of the Commissioners of the District to notify the owner or owners of every lot required by the act to be connected with a public sewer or water main, as the case may be, to so connect such lot, the work to be done in accordance with the regulations governing plumbing and house drainage in the District. (3) If the owner or owners neglect for thirty days after receipt of notice to make such connections, he shall or they shall be deemed guilty of a misdemeanor, and be punished by a fine of not less than one dollar nor more than five dollars for each day of neglect. (4) If the owner be a nonresident of the District, or cannot be found therein, the Commissioners shall give notice by publication twice a week, for two weeks, in some newspaper published in the City of Washington, to such owners, directing the connection of such lot with such sewer or such water main, as the case may be:

"Provided, however, that, if the residence or place of abode of the said nonresident lot owner be known or can be ascertained on reasonable inquiry, then, and in that case, a copy of the aforesaid notice shall be mailed to said nonresident, addressed to him in his proper name at his said place of residence or abode with legal postage prepaid, and in case such owner or owners shall fail or neglect to comply with the notice aforesaid within thirty days, it shall be the duty of said Commissioners to cause such connection to be made, the expense to be paid out of the emergency fund; such expense, with necessary expense of advertisement, shall be assessed as a tax against such lot, which tax shall be carried on the regular tax

Page 214 U. S. 141

roll of the District of Columbia, and shall be collected in the manner provided for the collection of other taxes."

The petition of defendant in error for certiorari alleges that she is a resident of Maryland, and was owner of the property against which the assessment was made at the time the connections were made by the Commissioners. She alleges that the assessment or tax is illegal in its entirety and beyond the power of the respondent (the District) to collect, in this, that the respondent had no jurisdiction of her property, "the said act of Congress being," she further alleges,

"unconstitutional and void because it discriminates between owners of real estate in said District, the said act not being uniform and capable of universal enforcement."

She also alleges that the assessment or tax is void in its entirety because the provisions of the fourth section of the act were not complied with in certain particulars which were set out. We do not give them, because two only are relied on -- to-wit, that the record does not show that notice was mailed to her, as provided by § 4, and that the record fails to disclose that any nuisance existed on her property, or that the means of drainage already there were unsanitary or unsufficient.

A rule to show cause was issued, to which the District made return. The return was verified by the Commissioners. It denied some of the allegations of the petition, averred the constitutionality of the act, and that due and legal proceedings were taken thereunder in making the connections and assessing the tax, including notice to petitioner. To the return were attached, to use the language of the Court of Appeals, "copies of such pertinent official papers and records as were in the custody of the District."

The writ was ordered to be granted. The return to the rule was made the return to the writ. Subsequently, the court, reciting that the cause having been argued by counsel, and submitted to the court on the writ of certiorari, and the return thereto filed herein by respondent, adjudged the tax to be "illegal and void," and that it should be "quashed and held chanrobles.com-red

Page 214 U. S. 142

for naught." The respondent was "forthwith directed to cancel the same on its tax records."

The judgment was affirmed by the Court of Appeals. 29 App.D.C. 563.chanrobles.com-red

Page 214 U. S. 147


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