District of Columbia v. Green

29 App. D.C. 296, 1907 U.S. App. LEXIS 5454

• Court: District of Columbia Court of Appeals
• Decided: March 19, 1907
• Docket: No. 1738
• Status: Published

Opinion

Mr. Chief Justice Shepard

delivered the opinion of the Court:

The police power that Congress may exercise in the District of Columbia extends to the subject-matter of the act in question; and we do not understand that this is denied by the defendant in error.

The offense charged in the information is that defined in the 1st section of the act above recited. This section makes no exception in favor of any person, and no discrimination whatever between persons or property similarly situated. All owners, occupants, and agents in charge of land from which weeds more than 4 inches in height shall not be removed after timely notice are alike liable to the penalty prescribed. As the defendant in error is confessedly the owner of the lot, no question arises •concerning the liability of mere occupants or agents in charge.

The attack upon the validity of the act is founded on the provisions of sec. 2, which, it is contended, make an unconstitutional discrimination between resident and nonresident owners in respect of an assessment of the charges for removing weeds, when done by the District authorities under the provisions thereof. It is this view that governed the action of the police court.

We think it a sufficient answer to the contention to say that the provisions of sec. 2 are not involved in the present case. No assessment has been made upon the property of defendant in error under that section, which merely provides for the removal of the weeds in certain cases, at the public expense, and for the assessment and recovery of that expense. The remedy provided is a civil one.

Without expressing any opinion as regards the validity of see. 2, we may concede, for the purposes of this case, that it violates the principle of equality. But it does not follow that the entire act is for that reason to be declared void. The two sections are distinctly separable from, and entirely independent of each other. The first may, therefore, stand and be enforced without regard to the validity of the second. This principle is well settled, Allen v. Louisiana, 103 U. S. 80, 83, 26 L. ed. 318, 319; Marshall Field & Co. v. Clark, 143 U. S. 649, 695, 36 L. ed. 294, 310, 12 Sup. Ct. Rep. 495; Reagan v. Farmers’ Loan & T. Co. 154 U. S. 362, 395, 38 L. ed. 1014, 1022, 4 Inters. Com. Rep. 560, 14 Sup. Ct. Rep. 1047.

A motion by the defendant in error, filed March 20, 1907, to stay the mandate and to modify the judgment, was overruled the same day.

The proper time to consider the validity of the 2d section of the act will be when the property of some person may be affected by its actual or attempted enforcement. New York ex rel. Hatch v. Reardon, 204 U. S. 152, 51 L. ed. 415, 27 Sup. Ct. Rep. 188.

The police court having erred in sustaining the motion to quash the information on the ground assigned, its judgment will be reversed, with costs, and the case will be remanded for further proceedings not inconsistent with this opinion. It is so ordered. Reversed.