District of Columbia v. Armes

8 App. D.C. 393, 1896 U.S. App. LEXIS 3177

• Court: District of Columbia Court of Appeals
• Decided: April 23, 1896
• Docket: No. 552
• Status: Published

Opinions

Mr. Justice Shepakd

delivered the opinion-of the Court:

1. The first question for decision arises under the eleventh section of the act which provides the manner of the assessment of damages where a part only of the owner's tract shall be taken. The jury are therein directed, in assessing the damages for the part taken, to consider also the benefit that " the purpose for which it is taken ” may be to the owner by enhancing the value of the remainder.

In the recent case of Md. & W. R. R. Co. v. Hiller, ante, p. 289, which was a case of the condemnation of land for the use of a private corporation, we were compelled to give interpretation to the last clause of the Fifth Amendment: “ Nor shall private property be taken for public use without ■just compensation." And the majority of- the court were of the opinion that this “just compensation ” means the actual value of the property taken, payable in money and without diminution on account of benefits general or special. In respect, however, of a claim for damages done to the adjacent land, not actually taken, special benefits are to be considered.

The same rule must necessarily apply where the appn> priation is for the use of the Government. There is no ground for distinction. However, it must be admitted, as pointed out in the case before referred to, that there is, in some material respects, a difference between the effect of condemnation of land for a railroad and for a public highway or street. In the former, the use of the taker is. practically exclusive, whilst in the latter case, the owner, as one of the public, has the enjoyment of all the uses of the thoroughfare, and has, besides, a special easement, or property, therein, for the subsequent deprivation of which, under certain circumstances, he may also be entitled to compensation: Whatever weight these considerations may be entitled to, they were not provided for in the Fifth Amendment as they have been in some of the later State constitutions ; and whilst Congress muy liberalize' or ■ extend the. benefits of special compensation to the landowner, it cannot restrict the operation of the words of the Constitution intended for his protection.

The difference between the effect of taking for a quasi public and a distinctively public use, we venture to suggest, accounts for- the doctrine of some of the decisions wherein, als it seems to us, the exercise of the sovereign' power of taxation, that may include the assessment of special benefits to pay or assist in paying for streets and their improvement when taken, has been confounded with the separate and distinct right of eminent domain.

Both these powers are sought to be exercised in the statute under consideration. Section 15, which provides for the assessment of part of the cost of the_ land upon the property in the neighborhood receiving benefits from the opening of the street or streets, will be matter of special consideration later.

Section iT, which regulates the condemnation, provides that the valué of the part taken from an owner may be reduced by the -benefits which may accrue to his remaining' lánd. Where these benefits are found to equal or to exceéd the value of the part taken, there is nothing left for which to ássess the neighboring lands under section 15. The' whole burden falls upon the one land owner, notwithstanding the lands of others may receive benefits of the same kind to an equal or less extent. If the compensation, or ‘ ‘ damages,” as we think it is misnamed in the act, exceed the benefits, then the owner may be further assessed in proportion with others to make oip the amount thereof, under the provisions of section 15. It is true that by special provision, of that section the jury is required to make “ due allowance for the amount, if any, -which shall have been deducted from the value of the part taken on account of the benefit to the remainder of.the tract.” Exactly what this “due allowance ” may mean is unimportant, •• In its broadest application it is eminently just; but it is given as an act of grace,, and it is not the compulsory recognition of a right.' If the-power to consider these benefits exists in the award of just compensation in the exercise of the right of eminent domain, it is dependent upon nothing else.

Payment of the surplus may be made from the public revenues, or in part from a fund provided by special assessments upon all neighboring lands that are benefited by the improvement, in the discretion of Congress. • This power of special assessment may be made to operate concurrently w'ith the other, or it may follow it or be called into existence by a later independent act; and in case of its exercise, there would seem to be no way in which, save by legislative favor, the owner could secure exemption from double assessment.

Granting the power to assess the costs of the improvement against lands benefited thereby, then if the provision requiring credit to the owner of the land taken for benefits assessed against him under section i x had been omitted therefrom, it could hardly be rendered invalid thereby.

The plea of double assessment would be met with the answer that the first one was made, not as an assessment of a tax, but under the separate and distinct provision of the Fifth Amendment, regulating compensation for lands taken for public use.

Had the power to assess and set off benefits been excluded from section 11, or had section 15 been amalgamated therewith and the owner of the land taken merely included with other neighboring land owners in an assessment, in proportion to benefits, for the purpose of raising a fund to aid in paying the cost of the improvement, the foregoing objection might probably have been obviated; because, whilst the two proceedings would be had together, the assessment and payment of compensation, on the one hand, and the assessment of the cost of the public improvement, on the other, would have been separate and distinct operations.

Referring to the case of Md. & W. R. R. Co. v. Hiller, supra, where the reasons for the interpretation given the language of the Fifth Amendment limiting the exercise of the right of eminent domain are .set forth, our conclusion is, that so much, at least, of section 11 as provides for the diminution of the just compensation for the value of the land taken to the extent of benefits accruing to the remainder, is beyond the power of Congress, and therefore void.

It does not follow, however, that the whole section shall be declared void and stricken from the bill because of the attempt to exercise a power that Congress does not possess; for, as if in recognition of a doubt as to its possession of such power, it is further provided that the assessments of value and of benefits should be separately made and returned by the jury. Although the word “may’’ is used in that provision, and not must or shall, we think the context authorizes it to be regarded as imperative rather than permissive only.

In Md. & W. R. R. Co. v. Hiller, supra, the trial court, without any direction upon the point in the law, required the jury to make a separate assessment; and upon return of the verdict, ignored the assessment of benefits and entered judgment for the value as found; and that judgment we affirmed. We see no reason, therefore, why the remainder of the section may not stand, with the whole provision as to benefits stricken out. It is plainly severable therefrom. Huntington v. Worthen, 120 U. S. 97, 102.

2. Notwithstanding the criticism contained in the opinion of the majority of the court in the recent case of Craighill v. Van Riswick, ante, p. 185, of the doctrine that special assessments for benefits received may be made in aid of public improvements, it was conceded that it had been established by the great weight of judicial decision in this country, as well as recognized to exist by the Supreme Court of the United States.

• In that case, too, a marked difference was referred to as existing between assessments for the creation of public pleasure grounds and for the improvement of streets, building sewers, etc. As was said by Mr. Justice Morris ;

“ The theory has its limitations and restrictions, as has the power of general taxation; and .we think that it- will, be found, upon a closer analysis of the authorities., at all events of the best authorities upon the subject, that the theory has been applied only when some easement or appurtenance has been added to the lands of the person assessed, or when some advantage has been given him which he did not possess before, such generally as the improvement of a street for access to his property, or the construction of a sewer for the drainage of‘his land, dr some similar work which he could, and should have done for himself, if it were not thát such work by a private individual, for obvious reasons, would be impracticable.”

Some of those special easements and rights of property in tire streets, involved in this proceeding, have been mentioned heretofore.

In so far as the general .principle of the assessment established by section 15 of this act is concerned, there can be no substantial objection. It is fair, liberal and regular. One-half only of the cost, and that payable in five annual instalments, is to be assessed against the property found to be benefited by the improvement, in proportion to the benefits by each tract received. The benefits are not apportioned by an arbitrary rule of frontage, area or neighborhood ; but are to be ascertained by a jury under the direction and supervision of a competent court, with the same right of appeal as in other cases.

Any mode of arriving at the assessment of benefits, however, must to a certain extent be. arbitrary, uncertain and unequal in operation ; but these difficulties are inherent, and'though furnishing strong reasons against the adoption of any such system of taxation, have not as yet been permitted to stand in its way.

The difficulty with section 15, in these respects, is not in the general principle of the assessment, but in giving it certain and effective operation in connection with other provisions of the act. • For this reason, chiefly, the . learned justice who tried the case set aside the verdict and declared the law inoperative and void. As was said in his opinion: “ If-we suppose a spacious avenue to be run through a half-dozen subdivisions from the boundary of the city to the boundary of the District, it is evident that the part of the avenue nearest the city is just as certainly, though perhaps not in the same degree, beneficial to the most remote as to the nearest subdivision, because it is equally essential to it and forms a part of its means of convenient access to the city ; and the benefit of such a highway is not confined to . the ground immediately abutting upon - it, but extends laterally to. all the property to which • it adds a convenient access to the city. In fact it diffuses itself in every direction until it imperceptibly, disappears like the ripples in a stream caused by'a stone thrown into it. But if a jury are to assess all the property so benefited they must first know .the whole amount of damages to be awarded for all the property taken for the supposed highway in order that a •single assessment for benefits may be made. In order to do this it would be necessary for- the same jury to assess the damages in all the subdivisions affected by the highway in question, and for all assessments to be suspended until this work is completed.”

The act does not contemplate the immediate opening up -of all the streets provided for in the map; but that it shall be done first in the old subdivisions separately, and then in the outlying portions, from time to time. Section 6 seems to contemplate an immediate but separate proceeding to condemn, against the property in each of the subdivisions, and that course has been pursued by the commissioners. Section 7, on the other hand, defers the condemnation of streets and avenues in other portions of the District contained in the map, and outside of existing subdivisions, until such time as, in their judgment, public convenience shall require,'and this exercise of discretion is made subject to review by the court. These requirements seem to have heen ignored in section 15, which seems to contemplate an award of benefits on all lands benefited by opening up any particular highway. So, as said by Mr. Justice Cox: “ If the jury were to consider what property outside of the subdivision would be benefited by so much of the new high* way as lies within that subdivision and assess it accordingly, another jury, in passing upon an adjacent subdivision might in return assess benefits anew upon the lots in this subdivision, and thus the assessment of different juries might overlap and be doubled upon the unfortunate lot holder.” In the same way assessments might be further made to overlap in the later opening of a street to the District boundary..

The other sections of the act show that Congress regarded it as unwise to open a street to the District line sooner than the public convenience shall demand ; whereas, it was considered important to at once rectify the existing subdivisions and conform them to the general plan. These were partly built upon and would probably be further incumbered by improvements, with a probable rapid increase of values and consequential damages to be compensated for.

In our opinion, section 15 is inoperative by failure to conform to the necessary operation of sections 6 and 7. To accomplish the object of speedy condemnation and rectification of streets in localities where important, some provision' should have been made for the creation of definite taxing districts, including one or several subdivisions and sections adjacent, where it might appear to be expedient and just, so that the work of condemnation, laying off, and assessment of expenses of streets could take place promptly without complication with others.

Another defect is that the assessments, when confirmed by the court, shall bear interest from date of such confirmation, notwithstanding the fact that Congress may not accept them, if at all, for a year, possibly, under the provisions-of section 18.

3. That Congress has made no appropriation for the immediate payment of the compensation that may be assessed does not render the act invalid. That it had the right to authorize-the commissioners to withdraw, after judgment rendered in a similar proceeding where the money had been appropriated in advance, has been decided. Ross v. United States, ex rel. Prospect Hill Cemetery, ante, p. 32.

Here no appropriation is made; but it is declared that in case-it is not made “within the period of six.months, Congress being in session for that time after such award, or for the period of six months after the meeting of the next session of Congress, the proceeding shall be void and the land shall revert to the owner.’’

The last words aré meaningless, for the title cannot pass out oí the owner until payment made or security provided for. Sweet v. Rechel, 159 U. S. 380, 401, 404. Besides, the first clause of the section prohibits the possession of the commissioners for the District until the appropriation shall have been made and the money actually paid.

It is a serious inconvenience, and may, in some instances, result in injury to the private owner, that he may have to remain in suspense awaiting the appropriation by Congress ; but this is an incident of the exercise of the power that cannot be wholly avoided, and against which there is no remedy, provided it be not prolonged for an unreasonable period. Shoemaker v. United States, 147 U. S. 282, 321.

The same practical injury may follow the institution of proceedings by a private corporation as the result of protracted litigation; though, in such case, the land owner would probably have a right of action for actual damages against the corporation in the event of its withdrawal therefrom.

4. The next proposition urged in support of the judgment is, that if the invalidity of either of sections 11 and 15, or both, be established, the act, as a whole, becomes inoperative, and must therefore be declared void.

We cannot agree to this contention. The controlling object of the act evidently is to provide a uniform plan for the extension of the streets and avenues of the city of .Washington throughout the District of Columbia, and to rectify all existing subdivisions and bring them into conformity therewith. Ross v. Goodfellow, 7 App. D. C. 1.

Even if the whole of section 11 had been declared'.-void the general object of the act would not be impaired; though important to the public interest in giving immediate effect to the*operation of the act in the existing subdivisions, it might have been omitted along with its attendant provisions, without detriment to the general object to be accomplished.

• What has -been said of section 11 applies with greater reason to section 15, which has been declared invalid. That section might well have been omitted altogether. It is but one of the modes in which the property condemned may be in part paid for. If in fact the policy of assessing benefits in order to pay for the opening of streets is to be generally pursued, it would be more nearly just, as well as conducive to certainty of ascertainment, if the assessment should be made to follow upon the actual condemnation and opening of the street through a definite territory.

“It is only when different clauses of an act are so dependent upon each other that it is evident the legislature would not have enacted one of them without the other — as when the two things provided are necessary parts of one system— that the whole act will fall with the invalidity of one clause. When there is no such connection and dependency the act will stand, though different parts of it are rejected.” Huntington v. Worthen, 120 U. S. 102; Packet Co. v. Keokuk, 95 U. S. 80, 89; Poindexter v. Greenhow, 114 U. S. 270; Reagan v. Farmers L. & T Co., 154 U. S. 362, 395.

5. The next and last objection taken to the act, as a whole, is that the record of the maps provided for therein amounts to a taking of the land, in the sense that it interferes with the enjoyment thereof by the owners to an injurious extent, beyond the power of Congress, without a provision for compensation. This question, though not decided, was to some extent considered in Ross v. Goodfellow, supra, where some of the- probable inconveniences of the act were alluded to.

That the act is not an unauthorized encroachment upon the rights of the. land owners is, we think, settled by the principles enounced by the- Supreme Court of the United States in the following cases : Shoemaker v. United States, 147 U. S. 282, 321; Prosser v. North. Pac. R. Co., 152 U. S. 59, 63, 65.

Similar statutes are quite common througiiout the States of. the Union, and have generally, if not universally, been upheld as valid exercises of legislátive power. District of City of Pittsburg, 2 W. & S. 320; Moale v. Baltimore, 5 Md. 322; Steuart v. Baltimore, 7 Md. 508; Foster v. Scott, 136 N. Y. 575, 577.

The question whether the public necessity or interest intended to be subserved by the act so far exceeds its inconveniences to the individuals as to justify its enactment, was one for the determination of Congress. •

Whilst we concur with the learned trial, justice in his refusal to enter judgment in accordance with the verdict, we think that he went too far in declaring the whole act inoperative and void and dismissing the petition.

The judgment will therefore' be reversed, and the canse remanded, with'direction to modify the judgment in so far as lit dismisses the■ petition, and to reinstate the cause'for further proceeding therein not inconsistent with this opinion. The costs incurred, on this appeal by the parties respectively will be paidhy them. It is to ordered.