Respondents Brief — District of Columbia v. R. P. Andrews Paper Co. Same v. Saks & Co. Same v. Lisner

Supreme Court brief1921

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SUBJECT INDEX.

Statement of the cuse......... Cs SEWERS CE ERES MT CEREOREN REV ES

I. Permits and aiialieia under which the vaults in

question were built, with conditions therein con-

tained, constituted contracts by which respondents

acquired vested rights revocable only by the ex

ercise of the police power.......... Saeedes ie MERE

Condensed statement of the contract under which

vaults were DUlib. csc ceeds riviera eri yr re

(a) Conseco ane oiiiiien > of use of the

vaults under such contract constitute

VORGG DIGHOTES TIM ss 6a ciestcccesis .

(hy) Such right is vested and irrevocable unless

use is) denied in exercise of police

DOOR ie evdseeaeitsc be vev8s C8 eer ceeeaWe

(ce) Its deprivation by taxation is a taking in

contemplation of law........ eevee"

II. Section 7 of the aet involved impairs the ‘whedon

of respondents’ contracts if construed as retro

MOUIVE: sc ikenteciconerevaré seks 664 RORDERMEND RY OREO

(a) Congress cannot impair ‘ dbligation of con

tract even in the exercise of its exclusive

right to legislate for the District of Co

PEE Seana ennees eee eer eee

(a) Congress has ne greater right to impaic

such obligations than has a State.......

(co) Tf one legislature is prohibited by Constitu

tion from enacting a law it would other

wise have no power to enact, another

not so prohibited may not for that reason

legally enact such a 1AW....cccercees ad

Ill. The act in question and the orders of the Conmis

sioners thereunder are void for lack of uniformity

IV. The act is void for indefiniteness,..... ee neKriaes

(a) No basis for assessment of ‘aul rents is

fixed thereby. ere rrr. ‘ewe F

(by Defect cannot ti. onal oe ( Seseinlesbone rs;

their powers are fixed by statute...

2 ee RM LOS, EE LOL OER FT

oe SR

ee ee Rd

(AS aD ee anetant b iatain A cetgen oT

Dewan bes

nl INDEX.

V. The act if construed as retroactive is an implied re-

peal of prior building regulations having the force

of law; such repeals are not favored.......6.00065

Vi. If construed as retroactive, the act is inoperative as

to respondents........ ree ee CORCdCUWe RORNSSSO008

Comments on brief for petitioner... csccssccsrcvesesesvresces

TABLE OF CASES CITED,

Arthur vs. Homer, 96 U. S., 137....... PPP rURP TT CTP e re rT errr

Aurora & Laughery Turnpike Co. vs. Holthouse, 7 Ind., 50, 61. .

Buchanan vs. Macfarlaud, 31, App. D.C. 6...

Bowen vs. Striker, 100 Ind. Be... 0.000068

Cc.

City of New Orleans vs. Great So. T. & T. Co,, 40 La. Ann,

Se ere eee Te eee ee eT seceerns ‘

Chicago, Burlington & Quincy R. R. Co, vs. Chicago, 166 VU, 8

226, 237, 23S

Clay County vs. Savings Society, 104 U, 8., 597,.

Chicago, M. & St. P. R. Co. vs. U. S., 127 U. 8., 406...

District of Columbia vs. Capital Traction Co., 41 App. D.C

Se Ae CLES TC CET CPR eR er cssdteseebas ees se

Dana vs. Rock Creek Railway Co. 7 App. D. C., 482....

De Ferranti vs. Lyndmark, 30 App. D, (., 417, 428.....

Fay vs. Macfarland, 82 App. D. C., 204, 200......

eee ee eee neee

PbO E AY Ae DAB BID PNM hae

Page.

oy)

—S eeemennats

INDEX,

Gregsten va, Chicago, 145 DL, 451.............. i4s 695406 oda 08

Gardner vs, Newburgh, 2 Johus. Ch.. 162 rer seccseves

Hot Springs Electric Light Co. vs. Hot Springs, 70 Ark., 300,

WOW TOM ose ecrscvecsesensecensosdecccscere Ete reny Terre

Kansas Pacific Railway Co. vs, Commissioners of Wyandotte

County, 16 Matt, O68 i 6icvscceces SeLEVLGM TREE SITTER ET CORE TP

Louisville Gas Co, vs. Citizens’ Gas Oe ee |.

I, & N. Ry, Co, vs, Mottley, 219 U. 8. 467....... Ciwebeseveeee

lawkwool vs, District of Columbia, 24 ADD: D; Cu. GOD. soos cce

Lybbe vs, Hart, 52 1. T. Rep. N.S. 634.........000006. Coens

Loan Association vs. Topeka, 20 WMI esis ¥ ee csc rrrerre

Mayor and City Council of Baltimore ve Nirdlinger et al, 151

sinter ityyalinpee gegen OLE TEE OR ee

Monongahela Nav. Co, vs. U. S.. 148 ee ae”. Sc

Murray vs, Gibson, 15 How,, 421............ TIveercr eee na

Me,

MeGuire vs. District of Columbia, 24 App. D. C., 22, 29, 32, 33,

N. Y. Steam Co, vs, Foundation Co., 195 N, re

Parish vs. Baird, 160 N, Y., 302, 306..............0c0055, as

Pumpelly vs. Green Bay Co. 18 WMI, 108, TTB occ ccs tans

RRR MRS ES Or

LEIS OE OPEB A OR Meal ERY LOREAL NGOS ER RY

lV INDEX.

Sinking Fond Cases, Union Pacifie RoR. Co. vs U.8., 90 0. &.,

TOD, TB. cccccsese RR rr rT TT ere tore a ee 2h

Sinnickson vs. Johnsen, 17 N. J. Law, 120, Tb... eee ern 2

Shreveport vs. Cole, 120 UL S., 36, AB. cece eee eee eereeees 39

Spitley vs. Frost, 15 Fed. 200.0... 666. eee dcseukeeredsanes i)

Territory vs. Reyburn, 1 Kan. 551, 567......606 6% vevesats ag 26

Todd vs. Macfarland, 20 App. D. C., 176, S82... cece eee eens 34, 36

Twenty Per Cent Cases, 20 Wall, 110.6... cece e eee e renee ene att

U.S. ws. Heth, 3 Cranch, 800... 0c ccc cere reer eee See ere 4

Washington Electric Vehicle Transp. Co, vs. District of Colum-

bia, 19 App. D. C., 462, ATO. cece ee eee eee e ene e ee eees 36

Wood vs. UL S.. 16 Pet, b42....6. 600 cee ened eens kates aes os

Text Books Cirep.

Iillon on Municipal Corporations, Vol. 3, seetion 1180, page

1BTS cececscescave Peeorerrr erry Trt tT ant eh eevetvecape 14

36 Cyc., 1150...6.. seen Sc ARE N ORO Uv) VEECHSREC CS CUEEER US CED os

96 Cyc., 1210.....0+56 JU Cheater RACUCOCER STE METER OR OR VE wer Ww

| eae : we semasenns PiSATE NNW BND Sled LA RENEE NAMM LE, ibs SAWN LAE ne |

IN THE

SUPREME COURT OF THE UNITED STATES,

OCTOBER TERM, 1920.

No. 282.

DISTRICT OF COLUMBIA

v8.

R. P. ANDREWS PAPER CO., a Corporation.

No. 283.

DISTRICT OF COLUMBIA

Us,

SAKS & COMPANY, « Corporation.

—-

No. 284.

DISTRICT OF COLUMBIA

ABRAHAM LISNER,

BRIEF FOR RESPONDENTS.

Statement of the Case.

These cases are in this court on writ of certiorari to re-

view the judgment of the Court of Appeals of the District

of Columbia in each case, reversing a judgment of the Su-

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preme Court of the District rendered therein in favor of the

District of Columbia in suits by the latter to recover rent

from each of the respondents for the use of vault space be-

neath the sidewalk adjacent to the several buildings occupied

by them,

The facts are substantially as follows:

Saks & Company, respondents in No, 288, being long-

term tenants of premises situated at 7th street and Market

Space, in the city of Washington, constructed vaults beneath

the sidewalk in front of the leased premises under a permit

from the Distriet of Columbia dated September 25, 1884

(Ree, No, 283, p. 11). The building regulations of the

Distriet then in force preseribed as a fee for a permit to con-

struct such a vault the sum of two dollars ($2.00) per lineal

foot thereof, which in this instance amounted to eighty-

seven dollars (887,00),

The Andrews Paper Company, respondent in No, 282, is

a tenant of premises Nos, 727-731 Thirteenth street north:

west, formerly owned by one James Sharp, whe built: the

vault used by this respondent, The permit for the eon

struction of this vault was issued to Sharp July so, 112,

At that date the building regulations preseribed one dollar

(81.00) as the permit fee, and by paragraph & provided that

“no charge will be made for the oecupancy of public space by

vaults or areas except the usual permit fee,” and further that

“all permits for such oveupanecy are subject to revocation by

the Commissioners at any time without compensation when

the vault space ia needed for public use or improvements”

Other important conditions were embodied in these regu:

lations which will be considered in the argument, among

them being the requirement that the pavement over the vault

should be constructed at the expense or risk of the owner of

the abutting property, and that upon change of grade the

vault must be changed and repaved accordingly at the ex-

pense of the owner of the abutting property,

Abraham Lisner, respondent in No, 284, owns the premises

acupied by him, situated corner of 11th and G streets north-

west, and under a permit dated January 9, 1914, constructed

the vault, which he now uses, beneath the sidewalk adjacent

to his premises, The building regulations in force when

this vault was built were the same as in 1912, to which refer-

ence has been made.

The first building regulations for the city of Washington

were promulgated in 1791 by George Washington, then

President of the United States, and these prohibited the con-

struction of vaults without a permit. From that time until

September 1, 1916, a period of one hundred and twenty-five

years, during which there was a continuity of building regu-

lations for the Distriet, embodying many changes applicable

to the growth and varying conditions of the city, no charge

was ever made for the use or oecupaney of vault space be-

heath the sidewalk other than the foes prescribed at different

times and varying in amounts for the issuance of permits

fo construct such vaults,

Congress, by an vet approved September 1, 1916, whieh

Was an appropriation act for the fiseal year ending June 30,

IV17, provided in section seven thereof

“That hereafter the Commissioners of the District

of Columbia are authorized and directed to assess and

collect rent from all users of space occupied under

the sidewalks and streets in the District of Columbia,

Which said space is oceupied or used in connection

with the business of said users.”

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Pursuant to this act, the District Commissioners on Octo-

ber 16, 1916, promulgated an order providing for the method

of ascertaining the amount of rentals to be charged and the

date on which they should be paid. The latter was by an

amendment to this order, dated October 20, 1916, fixed as

July 1 of each year, and the amount charged was payable

within thirty (30) days after presentation of the bill there-

for.

Under the provisions of these orders, each of the respond.

ents was charged an annual rental for the use of the respee-

tive vaults referred to and, for reasons hereinafter set forth,

each refused to pay thix rental, Thereupon the District

brought an action in assumpsit against each to recover the

rent charged.

The cases were tried together on agreed statements of facts

and the Supreme Court of the District rendered judgment in

each case in favor of the District for the amount sued for,

The agreed statements include what has been already above

set forth, and embody the various applicable building regu-

lutions in foree from 1791 to September 1, 1916, the orders

of the District Commissioners above referred to, the permits

for the construction of the vaults involved, and as a part

thereof the contractual conditions under whieh these permits

were issued and accepted, It is also stipulated that the act

of Congress authorizing and directing the assessment and

collection of rent for vault space and the orders of the Dis.

trict Commissioners made pursuant thereto, affect

a, The owner of premises adjoining the vault who

is the user of the vault and built the same for which

rent is charged in this case. The vault was con-

—

structed pursuant to a permit, a copy of which is at-

tached hereto and made part hereof.

hb. The tenant of premises adjoining the vault for

which rent is charged who is the user of the vault,

and constructed the same at his own expense, pur-

suant to a permit, a copy of which is attached hereto

und made a part hereof,

ce. The tenant of the premises adjoining the vault

for which rent is charged who is the user of it; but

did not construct the same; but the same was con-

structed by the owner under a permit from the Dis-

triet, a copy of which is filed herewith (Ree, 282,

p. 10),

The respondents severally appealed to the Court of Ap-

peals of the District from the judgments rendered against

them, and that court reversed the judgments, holding in

substance that in view of the expressed conditions under

which the vaults were constructed and used, one of which

was that no charge would be made for use of the space oc-

cupied, it must be assumed that Congress, in enacting the

rent provision in question, must have intended to preserve

vested interests by an act in no sense a police measure, but

the sole purpose of which was to provide revenue, and that

therefore the act applies only to permits thereafter issued

(Ree, 282, pp, 22, 28).

To review the judgments of the Court of Appeals, the

eases have been brought before this court by writs of

certiorari,

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ARGUMENT.

The vaults in question were constructed under permits

issued by the District of Columbia, containing conditions and

stipulations accepted by the permittees, which, together with

the building regulations applicable thereto, formed contracts

under which the respondents acquired vested property rights

subject to impairment or revocation only by the exercise of

the police power of the District for public needs.

Vaults were built in the District of Columbia under act-

of Congress and building regulations, between October 17,

1791 and June 26, 1891, when the Commissioners promul-

gated certain other provisions or regulations which as subse-

quently amended, were in existence at the time two of the

vaults im question were constructed and are in part a

follows:

On October 23, 1891, the Commissioners adopted a

“schedule of limitations and provisions relative to

the projection of portions of buildings beyond the

building line, as a basis for the Commissioners’ con-

currence under the act of March 3, 1891.”

In this schedule was the following provision :

“The area occupied shall be paid for at the rate of

fifteen cents per cubic foot. Pavements over vaults

must be constructed at the expense or risk of owner

or owners of abutting property.”

Soe oe ee ee NENTS OE ITLL NSC tha oe eat ste 8 DR a aR I A ieee

5 el °

On July 25, 1892, it was ordered—

“that the paragraph relating to the rate to be paid for

the occupation of vaults, in the schedule of limita-

tious and provisions relative to the projection of por-

tions of the buildings beyond the building line, as

set forth in the Building Regulations of the District

of Columbia, is hereby amended to read as follows:

‘The area occupied shall be paid for at the rate of

fifteen cents per cubic foot in front of business houses

and ten cents per cubic foot in front of dwellings.

Pavements over vaults must be constructed at the ex-

pense or risk of the owner of abutting property’ ”

(Rec, 282, p. 5).

In the building regulations adopted December 1, 1892,

in section nine (9), under the caption “Vaults under pave-

ments,” is the following:

“Vaults in front of business property, the area shall

be charged at the rate of fifteen cents per cubic foot,

and in front of dwellings at the rate of ten cents per

cubic foot, nor shall permit be issued until plan is

submitted and approved, showing openings. Pavye-

ments over vaults must be constructed at the expense

or risk of owner or owners of abutting property.”

Section eight (8) fixes a fee for vaults as follows:

“For each permit for vault, fifteen cents per cubic

foot of proposed vault in front of business property,

and ten cents per cubic foot in front of dwellings.”

The building regulations adopted July 31, 1897, con-

tained the following provision:

- a

“No charge will be made for the eeccunancy of pub-

lic space by vaults or areas, except the usual permit

fee, and all permits for such occupancy are subject to

revocation by the Commissioners at any time without,

compensation. No permit for vault or area shall be

issued until there is submitted and approved plans

showing the location and dimensions of the vault or

urea, and all openings pertaining thereto.”

On February 20, 1900, the Commissioners passed the fol-

lowing order, defining the conditions under which permits — +

for vaults would be issued:

“Ordered: This permit is accepted on condition

that the District of Columbia has the right at any

time to construct under, over or through said vault

space, water pipes, gas pipes, sewers, conduits or other

pipes of underground construction that the Commis- — ,

sioners of said District may deem necessary to be

placed in the space occupied by the vault, without

compensation.

And it is further agreed that in accepting this +

permit that the owner or owners, their heirs, execu-

tors, administrators, or assigns, immediately upon

notice from the Commissioners of the District of Co-

lumbia that the water pipes, gas pipes, sewers, con-

duits or other pipes, or underground construction are

to be introduced in the space occupied by the vault.

shall commence to move and forthwith remove, if +

necessary, any boiler, pipe, wall beam, machinery or

construction in or pertaining to said vault, or any

fixture or other thing therein, without cost to said

District, so as to leave a space clear and sufficient in

the judgment of said Commissioners for the intro-

duction and maintenance of any underground con-

TrT SIPS Pt e8T Exes ah iat ne ear es r ate

struction from time to time deemed necessary by said

Commissioners, And said Commissioners reserve

the right to enter upon the premises at any time for

the inspection and proper maintenance or repair of

any work constructed by the District. In case the

street roadway or sidewalk is widened, the vault shall

be changed to correspond therewith, without expense

to the District of Columbia, as directed by the Com-

missioners of said District, And this permit is ac-

cepted with the understanding that the occupation

of the vault space is permitted merely as an accom-

modation to the owner of the abutting premises and

that no right, title or interest of the public is in any

Way waived or abridged thereby, except as expressed

in said permit and the conditions aforesaid” (Ree.

282, p. 6).

The building regulations adopted on February 27, 1902,

contained the following, among others (sec, 123) :

“Par. 2. Plans must be submitted, with an appli-

cation on an official blank. showing the location and

dimensions of the vault and all openings, also the

depth and proposed construction; and the vault must

he built in accordance with the approved plans,

“Par. 3. The application for a vault must be ae-

companied by a written agreement. upon an. official

blank, signed by the owner of the abutting property

and in terms of section 124. contracting to release

and relinquish the vault space, and to remove, free

of expense to the District. al] machinery, fixtures,

or structural parts of the vault when so ordered by

the Commissioners. or needed for publie uses.”

Also: ‘

“Whenever the grade is changed, the vault must

be changed and repaved, at the expense of the owner

of abutting property, to comply with the new grades.” ’

* * * * * * *

No Charge for Occupation of Space. ‘

“Par. 9. No charge will be made for the oceupancy

of public space by vaults or areas, exeepi the usual

permit fee, and all permits for such oecupaney are

subject to revocation by the Commissioners at any

time without compensation, when the vault space is

needed for public use or improvements.”

“No vaults shall be constructed so as to interfere

with any sewer, water pipe, manhole, gas pipe, tree.

or other public work or improverment, nor with any

electric conduit carrying fire-alarm or police wires’

(Rec. 282, p. 7).

The building regulations adopted October 18, 1909, con- ,

tained the following (see. 128a) :

“Par. 3. The application for a vault must be ae-

companied by a written agreement, upon an official +

blank, signed by the owner of the abutting property

and in terms of section 124, contracting to release

and relinquish the vault space, and to remove free of

expense to the District, all machinery, fixturés, or

structural parts of the vault when so ordered by the

Commissioners or needed for public uses.”

No charges for vaults were made, except $1.00 for permit

to construct the vault. The permit issued was similar to the

aaeeaeaeaaaaamaaiaiaes sorte

one provided for in the order of February 20, 1900, before

quoted. The building regulations adopted January 18,

1913, in force on September 1, 1916, contained various pro-

visions relative to the construction of vaults, but made no

charge therefor, except the usual permit fee of $1.00. See-

tions 128a@ and 124,

The permit issued was the same, with the following addi-

tion, which also appears in the revisions of 1902 and 1909:

“And I herewith submit a statement of the pro-

posed and intended uses of the vault, and a list of all

machinery and fixtures that will be placed therein,

subject to the limitations of section 123, and I fur-

ther agree to uso the vault for the purposes authorized

by the Commissioners and for no other purposes,

under the terms of this section and agreement,” and

subject to the penalties for non-compliance as pro-

vided in section 182 of the Building Regulations for

the District of Columbia.

“Owners of Abutting Property.”

(Rec. 282, p. 8.)

From the foregoing, the express contract between the

District and an applicant for a permit to build a vault, exist-

ing when the vaults used by the respondents Andrews Paper

Company and Lisner were constructed, may thus be stated:

In consideration of the payment of the sum of one dollar

by the applicant concerned and the further agreement on

his part—

CT Serie ces

PSOE PRE RCP

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ants Finn MADRE

(a) to construct the pavement over the vault at the ex-

pense and risk of the owner of the abutting property ;

(b) to accept the permit a condition that the District

has the right to construct in, through, ete., the vault space

such water pipes, conduits, ant other public construction: a

may be deemed necessary by the Commissioners ;

(e) that the owner, his hears, administrators, or assigis,

upon notice from the Commissioners that the construe.

tion mentioned in (4) is to be introduced into the yault

space, shall move and forthvith remove, if necessary, any

boiler, machinery, or other fixture or thing therein, for the

purpose of such construction and the maintenance thereot

(7) to change the vault vithout expense to the District

to correspond to any widenng of the street, roadway, or

sidewalk ;

(e) to change the vault t) correspond te any change of

grade and repave, this to be done at the expense of the omner

of the abutting property ;

(f) to so construet the vailt as not to interfere with any

sewer, water pipe, tree, or other puble work or improvement ;

(gy) to sign a “written agement * * * contracting

to release and relinquish the vault space and remove free ol

expense to the District” all fixtures or “structural parts of

the vault when so ordered ly the Commissioners or needed

for public uses”

(h) to accept the permit sibjeet to revocation by the Com

missioners at any time wihout compensation “when the

vault space is needed for piilic use or improeveraiente 5

| nl BE ALN EUR OPERA DTI OS LN MN ae Or rth <

(/) to accept the permit with the understanding that the

occupation of the vault space is permitted merely as an ac-

commodation to the owner of the abutting premises, “and

that no right, title, or interest of the public is in any way

waived or abridged thereby, except as expressed in said per-

mit and the conditions aforesaid

(J) to use the vault only for the purposes authorized hy

the Commissioners, subject to penalties for non-compliance

of such agreement—

the District agreed to permit the applicant, his heirs, ad-

ministrators, or assigns, to use and occupy the vault space

without charge for the use and oecupaney thereof until such

time as the particular space should be needed for public use

or improvements.

This is the contract under which the vaults used hy the

respondents Andrews Paper Company and Lisner were con-

structed.

The respondent Saks & Company, in 1884, paid $87 as

the fixed charge and compensation for the privilege of erect-

ing and occupying the vault space used by it, and all the

rights of the District with respect to revocation, entry, and

subjection to the paramount needs of the public were neces-

sarily implied in so far as this vault is concerned. For

thirty-two (32) years no rental was ever charged, and be-

tween 1597 and 1916 the District, in its legally authorized

building regulations, publicly announced that no such

charge would be made, Free cecupancy in this instance

may, therefore, by the acts of the parties, in addition to the

payment of the sum of $87.00, be assumed as having been

understood to be a part of the contract with Saks & Company.

ee eed at eae cAsertie. cas on

Re Ae Bt eee ME

(a) The erection of the vaults at the cost of the owner,

and the privilege of the use and occupancy thereof pursuant

to and in compliance with the expressed terms of the perme

and contract above set forth constitute a rested property

right.

“A yault constructed under a permit from the

municipality is in itself a species of property:

* * #?

Vol. 3, Dillon on Municipal Corporations, sec.

1180, page 1873.

A vault under the sidewalk constructed with the per-

mission of the city authorities by the owner of the abutting

building, is an easement appurtenant to the abutting owner's

premises and is in itself a species of property which the

owner may protect as fully as any other property.

Parish vs. Baird, 160 N. Y., 302, 306.

New York Steam Company vs. Foundation Company,

195 N. Y., 43, 51, 52.

In Gregsten rs. Chicago, 145 Ill, 451, the court held that:

“A city under special legislative authority, as well

as its general powers, may grant permits for and regue

late the building of vaults under the streets, alleys

and sidewalks, and require such compensation for the

privilege as it may deem reasonable and just, when

such permits relate solely to such use of the alleys,

ete., as is in nowise inconsistent with their use by the

public; and such permit when accepted and acted on

by the holder by making costly improvements re-

quired, will constitute a contract between the city and

such holder irrevocable at the mere will of the city”

(Syl.).

(b) This property right becomes vested and irrevocable

unless its use is denied by the municipality in the exercise

of its police power,

In the case of Hot Springs Electrie Light Company vs.

Hot Springs, 70 Ark., 300, 304, 305, an_ electric light com-

pany having erected a plant pursuant to a city ordinance,

it was thereafter sought by the city council by a subsequent

ordinanee to require the company to pay annually the sum

of fifty cents for every pole that had been erected pursuant

to the original ordinance, which, in all respects, had been

complied with by the company. The court in denying the

city couneil the right to collect such additional charge

remarked :

“But cities are as much bound by their lawful con-

tracts as private persons, and it follows from the same

reasons that, the city having granted to this company

the privilege of erecting and maintaining its poles

along the city streets for a period of twenty years, and

the grant having been accepted by the company, and

the company having expended large sums of money

and made valuable improvements on the faith of such

grant, the city council cannot now impose addi-

tional burdens, and, in effect, change the contract

without the consent of the company. * * * So

far as the evidence shows, the court stated, it is an

attempt to charge the company for the privilege of

using the streets, which had been previously granted

to it, and is, in effect, an effort on the part of the city

to change the terms of its contract with the company,

and to impose additional burdens on the company

without its consent. We are of the opinion that this

cannot be done * * *.”

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caus a Se

thug f ies

Of similar import is the ease of Louisville Gas Company

py. Citizens’ Gas Company, 115 0. 8,, 688,

In Louisiana it was held that

“A niunicipal ordinance granting to a particular

company, authority to const uet and maintain tele-

phone lines on the streets, without any limitation: as

to time and for consideration stipulated when ae-

cepted and acted on by the grantee hy a compliance

with all ite conditions and the construction of a value

able and expe naive plant, 7 thereby the

features of a contract u hich the ety cannot thereafter

abolish or alter in its essential terns without the con-

vent of the yranter, Ser

City of New Orleans vx, Great So, T. & T. Ge.,

40 La, Ann, 41, 42.

In the ease of Mayor and City Couneil of Baltimore vs.

Nirdlinger ef a/,, decided December 18, 117, by the Court

of Appeals of Maryland, and reported in 131 Md., 600, 609,

where an attempt was made by the City Council to revoke

certain vault privileges, among other minor privileges of the

same character, such revocation being primarily for the pur-

pose of obtaining revenue, the court made clear in the con-

cluding language of its opinion the principle now wider

consideration,

The court said:

“When a city grows as Baltimore has there may

he more necessity for preventing abutters and others

from in any way encroaching upon the highways

except in so far as may be necessary temporarily for

building or like purposes, and it may be very de-

sirable to avoid some of the encroachmenta in the

future, but in some of the cases before us, it is prac-

tically admitted that the board did not expect the

purties to remove the alleged obstructions, but did

expect them to pay, and in some instance repay, for

them and continue them as they are, subject to such

regulations and restrictions as may be imposed on

them in the grants. It can make no difference to the

public in the use of a street whether a Vault, areaway,

pole, sign, coal-hole, marquee or show window is paid

for or is free, for it is just as much an obstruction in

the one case as in the other, Indeed, it might well

be contended that legislation authorizing a munici-

pality to charge for such privileges, to some extent

recognizes the necessity for them, as it is not to be

presumed that the legislature would grant the power

exclusively as a revenue measure, and when they do

materially obstruct the public they ought not to be

granted, unless there is some real necessity for them.

But when they are granted and paid for, or were

granted at a time when no money value to the city

for them was taken into consideration but the au-

thorities deemed it proper, possibly desirable for the

city, to allow them, and the parties were induced to

construct their buildings accordingly, instead of keep-

ing back of the building line so they could keep

them on their own ground, or to erect costly improve-

ments, the successors in oflice of those who granted

them ought not to be required, in the discharge of

their duties as they understand them, to repudiate

the action, or even inaction with knowledge of what

was being done, of their predecessors in office if that

must result in great injury or gross injustice to those

who acted in good faith upon the grant, permission

or consent of those in power at the time, unless there

is no other proper course for them to pursue.”

aE oso

ee ee oy

thy nod

It is clear that the contracts and permits in the instant

cases contemplated that while the same were revocable for

certain reasons therein set forth, this revoeability was limited

wnd restricted by the terms of the permits to the proper ecer-

cise of the police power, Ut has not and cannot be con-

tended that the rent sought to be collected in these cases ean

he recovered under any proper exercise of the police power

The authorizing act is a revenue measure only.

ce) The deprivation of a vested property right by means

of taration ix a physical taking in contemplation of law.

There is no “substantial distinetion between the

taking of private property by the aetual physieal in-

vasion of it, and the deprivation of the owner's use of

it by ucts that amount to the destruetion or impair:

ment of that use.”

Dana vs. Rock Creek Railway Company, 7

App. D. €., 482, 46.

It is needless to say that as the city of Washington in-

creased in size as well as population, and hotels, office build-

ings, and structures to be used as stores and housing for

various commercial enterprises were erected, vaults under

the sidewalks fronting these buildings beeame common, if

not indispensable, and were a recognized adjunct to the edi-

fices in connection with which they were built. The cost

to the landowners of these subsidewalk excavations and im-

provements has run into many thousands of dollars, ex-

pended under the conditions and in reliance upon the terms

of contracts with the Distriet granting the right to build

such vaults,

The imposition afterward of the wnnual charge directed

in the act complained of imposes, we submit, such a burden

upon the property rights of these whe constructed the vaults,

When it falls on them, as amounts to u physical taking of

such rights by an impairment of the use of the vaults,

weqttired under the contracts Hentioned,

II,

Section 7 of the act of September 1, 1916, impairs the obli-

gation of the existing contracts of the respondents, and is

therefore void as to them and all others in like situation if

the act be construed to be retroactive,

(a) Congress in the exercise of its right of exclusive legis-

lation for the District of Columbia has no greater power to im-

paw the obligation of an existing contract than has a Stale,

which is expressly inhibited from se doing hy article 7,

section 1, of the Constitution of th: lnited States

The power of Congress to legislate for the District, while

made exclusive by article 1, section S, paragraph 17, of the

Constitution of the United States. is neither unlimited nor

arbitrary,

“The power of Congress to legislate for the District

of Columbia in all matters proper for legislation,

whether of a general political nature or of merely

municipal character, is given by the Constitution of

the United States; and the extent of that power we

regard as well established by judicial authority, The

power is exclusive, but it is not unlimited. hor is if

urbitvary, There is no place in our governmental

system for arbitrary or unlimited power. Our in-

stitutions are radically at variance with the theory of

the existence of any such power anywhere in our

country.”’

Curry vs. District of Columbia, 14 App. D. C.,

423, 438.

In the case of Loan Association vs. Topeka, 20 Wall., 655,

663, Mr. Justice Miller said:

“The theory of our Governments, State and Na-

tional, is opposed to the deposit of unlimited power

anywhere. The executive, the legislative, and the

judicial branches of these governments are all of lim-

ited and defined power. There are limitations on

such power which grow out of the essential nature of

all free governments. Implied reservations of indi-

vidual rights, without which the social compact could

not exist, and which are respected by all governments

entitled to the name. No court, for instance, would

hesitate to declare void a statute which enacted that

A. and B., who were husband and wife to each other,

should be so no longer, but that A. should thereafter

be the husband of C., and B. the wife of D., or

which should enact that the homestead now owned by

A. should no longer be his, but should henceforth

be the property of B.”

In Curry vs. D, C., supra, the court, after quoting Mr. Jus-

tice Miller, said:

“The power of Congress in the District of Colum-

bia, as elsewhere throughout the Federal Union, is

distinctly limited by all the express guaranties of indi-

vidual right contained in the Federal Constitution.

No more in the District of Columbia than anywhere

i ihe a nae ek PAAR EH SRE ATR OG Re MMSE RELA Bey GEO ONL Tenge ARPS MS HR ont > 2% hee

else within the United States, could the legislature of _

the Union pass a bill of attainder or an ex post facto

law, or dispense with trial by jury, or establish a

religion, or authorize unreasonable searches. All the

general limitations imposed by the Constitution upon

its authority are as applicable in the District of Co-

lumbia as in any other part of the United States.

And not only are these express limitations applicable,

but, in the language of Mr. Justice Miller, in the case

just cited, all the ‘implied limitations which grow

out of the nature of all free governments’ are equally

applicable, The ‘exclusive’ power of legislation over

this District which is vested in Congress by the Con-

stitution, must be assumed to extend only to all law-

ful subjects of legislation; and invasions of those fun-

damental individual rights, which lie at the founda-

tion of the social compact, and for the maintenance

of which free governments exist, are not lawful sub-

jects of legislation.”

(b) Congress has no greater right in principle to impair

the obligation of a contract than has a State.

The case most frequently cited in this jurisdiction upon

this proposition of law is that of the District of Columbia vs.

Capital Traction Co., 41 App. D. C., 115, 119, where Mr.

Chief Justice Shepard, speaking for the court, used the fol-

lowing language:

“In the first place, the prohibition of laws impairing

the obligations of contracts applies to the States, and

not to the United States. The prohibitions to the

United States are those of the 5th Amendment, that

no person shall be deprived of property without due

process of law, and that private property shall not be

taken for publie use without just compensation.”

With reference to the above case, two observations may be

made:

1. The language quoted states what is conceded to be true,

namely, that article 1, section 10, of the Constitution of the

United States, relating to the “impairing the obligations of

contracts” constitutes an express limitation only upon the

States; but the case nowhere decides that this limitation

us a matter of fundamental law, subject only to the proper

exercise of the police power, is not also a limitation upon

Congress.

2. This becomes more manifest when the facts upon which

the opinion turned are analyzed. The court, however, held

that Congress did not impair the obligation of an existing

contract nor deprive the railway company of property with-

out due compensation, even under the 5th Amendment,

where Congress in granting the charter to the railway com-

pany expressly reserved the power to alter, amend or repeal

it. The question of the existence of such reserved power

therefore was the matter decided yy the court’s opinion.

It is not claimed in this brief that the inhibition in the

Constitution relating to the “impairing of the obligation of

a contract” imposes in terms a restriction upon congressional

legislation. Our contention is that this restriction is im-

posed upon Congress by the fundamental principles of justice

governing all legislative acts, as will appear more fully in

the discussion of the following principle:

sah aaa Ni ial a a oa a POE EY RN Lee RAE BNE A x PO ATW ey ENTE HAD OPA ONY [ES

(ce) It does not necessarily follow that because a legisla-

ture is by express constitutional inhibition, forbidden to

enact a law which it would otherwise have no power to enact,

another legislature not so subject to constitutional limitation

may legally enact such a law.

In the dissenting opinion in what is known as the Sink-

ing-Fund Cases, Union Pacific Railroad Company vs. United

States, 99 U.S. 700, 736, the following language is used:

“Now, where is the power of Congress to add new

terms to any contract made with the United States, or

made between any two private individuals? Where

is the power to annul vested rights? It is certainly

not to be found in the Constitution. True, the pro-

vision that no State shall pass any law impairing the

obligation of contracts applies only to State legisla-

tion. For such legislation the prohibition was neces-

sary; for State legislatures have all legislative power

whieh is not expressly denied to them. But no neces-

sity existed for imposing such a limitation on the

power of Congress. As Mr. Hamilton said in the

eighty-fourth number of the Federalist, ‘Why declare

that things shall not be done which there is no power

to do?’ Congress has no power except such as has

been expressly granted to it. or such as is necessary or

proper for carrying into execution the powers speci-

fied, and those vested by the Constitution in the Gov-

ernment, or some department or officer thereof. T

search in vain for any express or implied grant of

power to add new terms to any existing contracts

made by or with the Government, or any grant of

power to destroy vested rights. No power has been

given to Congress to lessen the obligations of a con-

— —

tract between private parties by direct legislation,

except by the enactment of uniform laws on the sub-

ject of bankruptcy.”

The soundness of the foregoing proposition of law was

not denied or in the slightest degree questioned, but on the

contrary was assumed by the court in its majority opinion

delivered by Mr. Chief Justice Waite (page 718), who said:

“The United States cannot any more than a State

interfere with private rights, except for legitimate

governmental purposes. They are not included

within the constitutional prohibition which prevents

States from passing laws impairing the obligation of

contracts, but equally with the States they are pro-

hibited from depriving persons or corporations of

property without due process of law. They can not

legislate back to themselves, without making com-

pensation, the lands they have given this corporation

to aid in the construction of its railroad. Neither

can they by legislation compel the corporation to dis-

charge its obligations in respect to the subsidy bonds

otherwise than according to the terms of the contract

already made in that connection. The United States

are as much bound by their contracts as are individ-

uals, If they repudiate their obligations, it is as

much repudiation, with all the wrong and reproach

that term implies, as it would be if the repudiator

had been a State or a municipality or a citizen. No

change can be made in the title created by the grant

of the lands, or in the contract for the subsidy bonds,

without the consent of the corporation. All this is

indisputable.”

It thus appears from the above quotations, that both ma-

jority and minority opinions admitted and endorsed the

OLR MA RATER AIS Rg AU IRS AEN my ete EAN NOPE VASO NT TRENT A

proposition that the United States acting through Congress,

to the same extent as an individual, were bound by their

contracts, and that no rights accruing thereunder could be

impaired by any subsequent legislative act. The majority

opinion held that Congress did not impair the obligation of

its contracts with the railroad companies involved, but re-

quired some additional security in the way of a “sinking

fund” from the companies, pursuant to and in accordance

with the reserved powers of Congress ; and while the minority

opinion took a different view as to the effect of this legisla-

tion upon the contractual rights of the railroad companies

involved, yet there was no real divergence of opinion concern-

ing the principle to which allusion has just been made.

It will be observed that the facts underlying the instant

cases disclose that the vested contract rights herein involved

constitute a definite contractual relation between the respond-

ents and the District of Columbia, which is an agent of the

Congress of the United States in all matters of this character,

In Chicago, Burlington and Quincy Railroad Company

vs, Chicago, 166 U, S,, 226, 237, 238, the court. through

Mr. Justice Harlan, said:

“In the early case of Gardner vs. Newburgh, 2

Johns. Ch., 162, there being no provision in the

Constitution of the State of New York on the subject,

Chancellor Kent said that it was a principle of

natural equity, recognized by all temperate and

civilized governments, from a deep and universal

sense of its justice, that fair compensation be made

to the owner of private property taken for public use.

In Sinnickson ve. Johnson, 17 N, J. Law., 129, 145,

it was held to be a settled principle of universal law,

ToS WSR RIE A

reaching back of all constitutional provisions, that

the right to compensation was an incident to the

exercise of the power of eminent domain; that the

one was so inseparably connected with the other that

they may be said to exist, not as separate and distinct

principles, but as parts of one and the same principle ;

and that the legislature ‘ean no more take private

property for public use without just compensation

than if this restraining principle were incorporated

into and made part of its State constitution.’ These

cases are referred to with approval in Pumpelly vs.

Green Bay Co., 13 Wall., 166, 178, and in Monon-

gahela Nav. Co. vs. United States, 148 U. S., 312,

325, this court saying in the latter case: ‘And in this

there is a natural equity which commends it to every

one. It in no wise detracts from the power of the

public to take whatever may be necessary for its

uses; while on the other hand, it prevents the public

from loading upon one individual more than his just

share of the burdens of government, and says that,

when he surrenders to the public something more

and different from that which is exacted from other

members of the public, a full and just equivalent

shall be returned to him.’ ”

These principles have also been adopted by State courts

whenever they have had occasion to consider them, as for

instance in the case of The Territory vs. Reyburn, 1 Kan.,

551, 557, the court saying:

“It is argued that the provision of the Constitution

of the United States, prohibiting the States from

passing any law impairing the obligation of a con-

tract, does not extend to or include the Congress of

the United States, and hence, as they are not forbid-

den, they may pass such laws. This is an extreme

error, and grows out of a misunderstanding of the

organization and structure of our Government, and

is predicated upon the erroneous idea that the gen-

eral government is an original sovereignty. The

separate States were original sovereignties, and may

have had power as such, to impair the obligation of

contracts until they formed the Constitution, by

which they voluntarily prohibited themselves from

the exercise of it, the existence of which right will be

doubted, and the use of it was always deservedly

condemned by all good and just men. The general

government is not an original but a derivative sov-

ereignty, upholding such powers only as are granted

to it by the Constitution, or such as necessarily arise

and follow from those specifically granted. The

general government is the delegated agent, with the

Constitution in its hand as its warrant of attorney,

beyond whose provision it can not go in its action.

The Constitution will be searched in vain to find a

special grant of power to impair the obligation of a

contract; and who shall justly say that this power,

immoral in itself, and abhorrent to every man’s sense

of natural justice, is a necessary implication arising

from the powers granted? We deny it.”

The case of L. & N. Ry. vs. Mottley, 219 U. S., 467, is not

adverse to the principle for which we here contend. The

court there held that a contract made in 1871 to carry a

passenger without charge in consideration of the relinquish-

ment by the latter of his claim for damages, was not en-

forceable by the passenger after the passage by Congress of

the Interstate Commerce Act of June 29, 1906, prohibiting

a carrier from charging a different compensation from that

specified in its published tariffs; and that the statute meant

that transportation should be paid for by all alike and for

cash, This decision rested upon the following grounds:

1. The unrestricted right of Congress to regulate inter-

state and foreign commerce.

2. Such contracts are made with the knowledge of and

subject to such paramount power in Congress (482).

3. The act in question was in execution of a publie policy

applicable to interstate transportation (477),

4, No obligation of a contract can extend to the defeat of

legitimate governmental authority (482).

5. The framers of the Constitution never intended that

this exercise by Congress of its constitutional power should

ever be impaired by a contract previously made (482),

6. The liberty of an individual to make private contracts

would result in the private regulation of interstate commerce

and prevent Congress from the exercise of its constitutional

right to regulate commerce among the States.

7. The interstate act of 1906 involves a change in the

public laws in the exercise of police powers, to which all

private contracts must yield (485).

8. If by the simple device of a contract a police power

could not be exercised then all reforms might be prevented

(487).

We respectfully submit, therefore, that the contracts of

the respondents under which, for valuable consideration,

they were granted the use of vault space free of charge for

such occupancy could not legally be impaired by Congress

and their property rights injured without their consent, un-

less in the exercise of the police power, which admittedly

was not attempted to be exercised in the act complained of.

us ® 7 Pe PRP EPS TE NY NN UP WIN VI RLY OND TAS! NOMEN my — ‘

ITI,

Section 7 of the act of September 1, 1916, and a fortiori the

orders of the Commissioners issued thereunder, are void for

lack of uniformity and because they impose burdens upon

Some owners of property and not upon others similarly

situated,

Attention is invited to the peculiar phraseology of the act

under discussion, By it the Commissioners are authorized

and directed to collect rent from all users of space, ete.,

“which said space is occupied or used in connection with the

business of said users,”

This provision and the orders enforcing it, work out thus:

An owner of abutting property who before the passage of

the act, expended large sums of money in constructing a

vault and complied with the terms of his contract under

which he acquired the right to use it, if he so uses it in con-

nection with his business, must now pay an annual rental

for such use. He is also required, at his expense, to change

the vault and to repave the sidewalk, or relinquish it and

remove costly fixtures therein, as the case may be, when the

public needs so require.

Another abutting owner next door who built his vault

wnder the same contract, conditions, burdens, and expense,

escapes the rental charge because he does not use the vault

in connection with his business, though he may use it for

other legitimate purposes, or because he has leased his prop-

erty and the lessee uses the vault, This owner may receive

from his lessee a larger rent for his property than if there

wes ene

were no vault. To that extent he uses the vault—i, ¢., in the

sense of leasing it.

In these illustrations the latter owner pays no rent; the

former, with the same burdens and under the same contract

as his fellow-owner, pays rent.

Again, a vault may be used in common by several, Some

use it in connection with their business, some do not. All

use it, yet for its use some pay and others do not,

In the instant cases, the owner of the property occupied

by Andrews Paper Company, whose assignor constructed the

vault, pays no rent; but Lisner, who owns and who con-

structed the vault used by him, is charged an annual rental.

The rental required by the statute constitutes a penalty im-

posed solely on the user whose use is in connection with his

business. Hence in some instances the law violates the pro-

visions of the contract under which the vaults were built;

in others it does not. It in effect places a burden upon the

business use of vaults, leaving their use for other purposes

free. In other words, the rent is based upon the character of

use only. Again, if several use a vault in common for busi-

ness purposes, who is to pay? Finally, the owners of dwell-

ings are exempt from the operation of the act.

Discrimination of the character just pointed out, has been

judicially condemned.

Thus, Congress undertook to require the removal of snow

and ice from the sidewalks by tenants and occupants and

owners of buildings, etc. The first paragraph of the act

attempting to do this, reads:

“Be itenacted * * * that it shall be the duty

of every tenant or occupant of any lot or lots of

ground within the fire limits of the District of Co-

lumbia, improved by a house or building adjacent to

any improved sidewalk, within the first four hours of

daylight after the ceasing of any fall of snow, to

cause said snow to be removed from the paved side-

walk adjacent to such lot or lots, ete,”

Section 3 provided:

“That it shall be the duty of the owner or owners

of every vacant or unimproved lot within the fire

limits of the District of Columbia fronting or abut-

ting upon a paved sidewalk, within the first four hours

of daylight after the ceasing of any fall of snow, as

set forth in paragraph 1 hereof, to cause such snow

to be removed from the paved sidewalk in front of

such lot or lots in the same manner, and to the same

extent, and subject to the same penalty, as provided

in said section, ete,”

In the ease of MeGuire vs. District of Columbia, 24 App.

D. C., 22, 29, 32, 33, construing these provisions, the court,

after adverting to the beneficent purpose of this law—that of

saving life and limb from accidents due to slippery side-

walks; and after remarking that the court should therefore

look with favor upon the validity of such legislation,

observed :

“Almost in the very first line we are confronted

with an ambiguity that amounts almost to an absurd-

ity. It is provided in the 1st section that ‘every

tenant or occupant’ of improved property within a

certain specified district shall cause the snow and ice

to be removed from the adjoining sidewalk under a

prescribed penalty. When there are a dozen or more

Se CB 7

tenants or occupants of one improved piece of prop-

erty, such, for example, as an apartment house, of

which class of building we have now very many speci-

mens in our city, are all the occupants of apartments

therein liable for the performance of the prescribed

duty, and punishable for failure to comply with the

requirements of the act? And if not all are liable,

is any one of them? An answer in the affirmative

to either of these questions involves an absurdity; an

answer in the negative leaves the statute without any

provision whatever for the removal of snow and ice

from the sidewalks in front of these apartment houses.

For the owner is not by the statute required to do it,

unless, perhaps, he happens, which would only be pos-

sible in rare cases, to be an occupant, also, of the

premises; and certainly no employee about the prem-

ises would be a tenant or occupant in the eye of the

law amenable to the performance of the duty required

by the statute. In the case of improved property,

not the owner, but the tenant or occupant, is required

to do the work or have it done; and this, of course, is

eminently right and proper if the work is to be done

at all by the individual citizen.”’

The court says further:

“But probably the most glaring infirmity of this

enactment is its sharp discrimination between the

tenants and occupants of improved lots and the

owners of vacant or unimproved lots. When it is re-

membered that the sole purpose to be subserved is the

removal of snow and ice from the paved sidewalks of

the District, and the duty of such removal is sought

to be imposed upon individual citizens with reference

to their occupation or ownership of adjoining prop-

erty, the utmost equality and uniformity must be

observed in the imposition of the duty. It will not

do to require one owner of property, by reason of his

ownership, to perform a duty from which the owner

of the adjoining property is relieved. The owner of

vacant property cannot be subjected to liability to

which the owner of the adjoining improved property

is not subjected, when the thing to be done is based

exclusively on the propinquity of such property, and

can have no possible reference to the condition of

such property as improved or unimproved. The

necessity of the removal of snow and ice from the

sidewalks is precisely the same in the one case as in

the other. To punish the one owner, for failure of

compliance with the act, by fine and imprisonment

and an assessment upon his property, and to exempt

the other from all duty and from liability for the

same precise thing, is a species of inequality which is

repugnant to the principles of natural justice; and

the inequality is not obviated by the fact that the

duty, which might otherwise be imposed upon the

owner of improved property, is by the enactment

shifted to the tenant or occupant. The fact remains

that the owner of unimproved property is charged

with a burden, by reason solely and exclusively of his

ownership, with which the owner of adjacent im-

proved property is not charged, notwithstanding that

the burden has no relation whatever to the character

of the property, whether improved or unimproved.

For we are not to be understood as holding that there

may not be difference of burden where the difference

has a reasonable relation to the difference of character

of the property.”

POR DS NNR

— oan VAS ARS TAA PRN TL hy OO OY Pe EOP a aS

OR FRAO. LITE SIN ONT ND alae aM .

We submit that the facts in the instant cases involving

the disciminative operation of the vault-rent law as above

illustrated, come within the reasoning of the court in the

case cited. Other instances of similar inequality may be

conceived, such as where vaults under the sidewalks ad-

jacent to apartment houses might be used by the occupants

thereof or by the owner, or by both. The same is true as to

a large number of office buildings in the city of Washington,

and indeed it is not unlikely that cases may arise where the

fee to the sidewalk is in the owner of the abutting property

and he might under the present law be charged rental for

vaults of which he himself is the owner, for it has been

judicially determined in this District that the title to lands

embraced in the sidewalks in those sections north of Florida

avenue and west of Rock creek is the owner of the abutting

property.

IV.

Section 7 of the act of Congress in controversy is void for

indefiniteness.

(a) It will be observed that under the section involved

“The Commissioners of the District of Columbia are author-

ized and directed to assess and collect rent from all users,

etc. * * * ” No basis whatsoever is provided for fixing

the amount of the assessments. As to whether assessments

are to be computed according to the linear feet, square feet

or the area of space occupied, or upon the value of the abut-

ting property or otherwise the act is silent.

In Todd vs. Macfarland, 20 App. D. C., 176, 182, the

court had before it an act of Congress providing for the wid-

LARC OE BEML EA LA FS Be Resreamatyane.y ink ih ee Ue hee oe ee ee oT

ening and extending of certain streets. The act among other

things provided that when the verdict of the jury was con-

firmed by the court, “the assessments shall become a lien upon

the land assessed and shall be collected as special improve-

nent taxes in the District of Columbia and payable in five

equal instalments, with interest at the rate of 6 per cent per

annum until paid.” The court said it should be observed,

that the assessments were to be collected as special improve-

nent taxes were collected, and were made payable in five equal

instalments without saying at what imtervals of time such

payments should be made, whether annually, semi-annually

or monthly; and that it was manifest that the amounts of

the assessments were not to be paid at once, and whatever

time was intended to be given for payment was intended to

be divided so as to make the payments equal in amount and

at equal intervals of time commencing from the first of the

five instalments; but the question of time was left in entire

uncertainty and consequently by reason of the omission to

specify the particular time when the instalment of assess-

ment became due and payable the power of collection was

defective, and the assessments, while the amounts had been

ascertained and remained liens upon the lands, could not be

collected by the District authorities. The court suggested

that such defective means of collection might be cured and

rendered effective by a subsequent Congress.

It is observed by the court in the above case that because

the damages for the land taken had already been paid to the

parties entitled thereto as authorized by the act there would

be no justice in avoiding entirely the assessments for benefits,

A similar question arose in the case of Buchanan vs. Mac-

farland, 31 App. D. C., 6, and the court based its decision

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upon the reasoning in the case of Todd vs. Macfarland, above

cited.

In Lockwood vs. District of Columbia, 24 App. D. C.,

569, 571, the interpretation of certain portions of the per-

sonal tax law was in question. The court, speaking through

Mr. Justice Shepard, observed:

“The established rule of the courts is that all

statutes imposing restrictions upon business or the

common occupations of the people, or levying a tax

upon them, are to be construed strictly.

“As was said by Chief Justice Alvey in delivering

the opinion of this court in Washington Electric

Vehicle Transp. Co. vs. District of Columbia, 1

App. D. C., 462, 470; ‘All the authorities agree in

maintaining that all charges upon the citizen must

be imposed by clear and unambiguous language, be-

cause, as it is said, they operate as penalties. In a

case of doubt that construction most beneficial to the

citizen must be adopted.’ Here, as we have seen, the

penalty for pursuing this occupation without the pay-

ment of a considerable license tax is a severe one,

and it is eminently just, therefore, that the citizen

should be reasonably well informed, by the language

of the statute itself, of his obligation to pay money

demanded of him, the failure to pay which, if he errs

in its construction, may subject him to that penalty.”

(b) Counsel for respondents contend that the infirmity |

discussed under this head can not be cured by any act on the

part of the Commissioners of the District of Columbia, as no

sufficient authority for so doing is vested in them under this

or under any other act so far cs counsel are able to ascertain.

The Commissioners are creatures of statute and possess no im-

plied powers. The mere fact that thus far the rental assessed

is fair, does not cure the defect in the act complained of.

Future orders of the Commissioners assessing larger rentals

would be likely to involve those concerned in yearly litiga-

tion to obtain judicial determination of the fairness of the

rental charge for a particular year, or series of years.

In Fay vs. Macfarland, 32 App. D. C., 294, 299, wherein

certain statutes authorizing the taking of private property

for public use were considered, the court in its opinion, on

page 299, states:

“Statutes like the present, authorizing the taking

of private property for public use, are to be strictly

construed. The Commissioners are creatures of

statute. They possess no implied powers. Their

authority to act must be gathered from the express

terms of the law granting it. Hence, in any attempt

to act under a statute granting authority, they must

comply literally with its requirements.”

It is conceded that Congress may confer upon the Com-

missioners of the District of Columbia, subject to certain

limitations, the power to levy taxes in a given case, just as a

State legislature may create a municipality within its terri-

torial limits and clothe it with certain powers of taxation.

But it is denied that Congress may by the general authority

contained in the appropriation act of September 1, 1916,

vest the Commissioners of the District with absolute and

arbitrary power both to assess and to collect rent for vault

space, without in any way limiting the Commissioners with

respect to the amount, the terms or the manner of the assess-

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ment and collection thereof, or otherwise defining the extent

of their powers.

Section 7 of the act of September 1, 1916, if construed as

retroactive, is an implied repeal of prior regulations of the

Commissioners made pursuant to and having the force of law.

An implied repeal is not looked upon with favor by the courts.

Repeals by implication are not favored and statutes will

not be construed to so operate, unless such intention is clearly

expressed by the legislature.

Arthur vs. Homer, 96 U. 8., 137.

Clay County vs. Savings Society, 104 U.8., 579.

Chicago, M. & S. P. R. Co. vs. U. §,, 127 U. S., 406.

There must be positive repugnancy between the new law

and the old to work a repeal of the former by implication ;

and even then the old law is repealed only to the extent of

such repugnancy. If any part of the earlier act can stand

it will not be repealed (Wood vs. U.8., 16 Pet., 342).

It will not be presumed that a legislature by the enact-

ment of subsequent statutes intended to repeal an earlier one

unless it has done so by express terms (36 Cyc., 1150, and

cases cited). Among these is the leading case of Lybbe vs.

Hart, 52 L. T,. Rep. (N. 8.), 634, where it was held that

when a statute is not expressly repealed, the burden is on

those who assert that there is an implied repeal to show that

the statutes can not consistently stand together. So far as

reasonably possible several statutes, although seemingly in

conflict with each other, should be harmonized and force and

effect given to each.

In Kansas Pacific Railway Co. vs. Commissioners of

Wyandotte County, 16 Kan., 587, it was held that where

there is no way of reconciling conflicting clauses of a statute,

and nothing to indicate which the legislature regarded as of

paramount importance, force should be given to those clauses

which would make the statute in harmony with other legis-

lation on the same subject.

It will be observed that we are under the necessity here

of harmonizing the act of September 1, 1916, with prior

building regulations, but these have the force of an act of

Congress (Berry vs. D. C., 32 App. D. C., 96) and provide

that “no charge will be made for the occupancy of public

space by vaults.”

VI.

If section 7 of the act of September 1, 1916, is retrospective

and retroactive in its character, it is inoperative as to the

respondents.

(a) The act of September 1, 1916, if it is to be given the

construction contended for by the petitioner, is retroactive.

It is a rule of statutory construction that all statutes are to

be construed as having a prospective operation, unless the

purpose and intention of the legislature to give them a

retrospective effect “is manifest beyond reasonable question”

(Shreveport vs, Cole, 129 U. 8., 36, 43).

This principle was thus expressed in De Ferranti vs. Lynd-

mark, 30 App. D. C., 417, 422:

“It is a general rule of statutory construction that,

in the absence of language in a statute clearly ex-

pressing an intention to the contrary, statutes will be

construed prospectively.’’

Words in a statute ought not to have a retrospective opera-

tion unless they are so clear, strong and imperative that no

other meaning can be annexed to them (U. S. vs. Heth, 3

Cranch, 399),

See also Murray vs. Gibson, 15 How., 421; Twenty Per

Cent cases, 20 Wall., 179.

The rule that statutes are not to be construed retrospec-

tively, unless such construction is plainly intended by the

legislature, applies with peculiar force to those statutes, the

retrospective operation of which impairs or destroys a vested

right (36 Cyc., 1210; Plumb ve. Sawyer, 21 Conn., 351;

Spitley vs. Frost, 15 Fed., 299; 5 MeCrary, 43, reversed on

another ground in 121 U.S., 552).

In Aurora and Laughery Turnpike Company vs. Holt-

house, 7 Ind., 59, 61, followed in Bowen vs. Striker, 100

Ind., 45, the court held that “statutes are to be construed

prospectively, unless the intention to give retrospective opera-

tion is clearly expressed, and not even then, if by such a con-

struction the act would divest vested rights.”

The Court of Appeals in the instant cases held that the

act in controversy is not retroactive; that the intention of

Congress in enacting section 7 was to preserve, not to destroy,

vested interests; to recognize, and not to abridge the rights

of the respondents. We submit that in this the Court of

Appeals was right and followed the judicial principles estab-

lished by the cases above cited. The contrary construction,

by which a burden would be imposed annually upon those

who haye kept faith with the District, paid all that was de-

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manded for their privileges, and expended large sums of

money to enjoy them, is unnecessary. To hold that the act

is prospective only in its operation, if it be valid at all, is to

permit the exaction, by way of rental, of compensation for

the use of vaults hereafter constructed under contracts em-

bodying the rental provision ; leaving in statu quo those who

have already, under a solemn agreement, paid for such use

all that was required, relying on the terms of such agreement

that what had been required was all.

For all the reasons hereinabove set forth, we respectfully

submit that the judgments of the Court of Appeals should

be affirmed,

Petitioner's Brief,

1. Counsel for petitioner apparently bases his entire

argument upon the proposition that no contractual relation

existed between the District of Columbia and the respond-

ents. If he is wrong in his contention, then his whole

argument fails. That respondents and the District did con-

tract with reference to the vaults in question has been al-

ready argued and, we think, demonstrated. Nothing further

need be said on this point except to invite attention to the

language used in the permits and regulations relating to

vaults, such as “It is further agreed, that,” ete., in the per-

mit; and in the regulations that the application for a permit

must be accompanied by a “written agreement” signed by

the owner, ete., “contracting to release and relinquish” the

vault space and remove fixtures, etc., when such space should

be needed for public uses (R., pp. 6, 7).

2. The question is also raised by petitioner's counsel, that

the Commissioners had no power to make the contracts

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claimed by the respondents. This question is disposed of ,

by the fact that the building regulations have been deter-

mined to have the force of law, having been authorized by

Congress (Berry vs. D. C., 32 App. D. C., 96), and by the

act of Congress of March 3, 1891 (26 Stat., p. 868), which

ritified the action of the Commissioners in theretofore grant-

ing permits for extensions beyond the building line and

authorized them, with the concurrence of the Secretary of

War, to grant future permits (R., p. 5). (The Secretary’s

concurrence was later dispensed with.)

4. To the argument made that no franchise, license, or

easement of a perpetual nature as to vault space could be

or was intended to be granted, it is a sufficient answer to

observe that owners of properties, such as hotels, large stores,

office buildings, and banking-houses, have not for a hundred

years built, and do not build and equip for commercial pur-

poses vault space beneath sidewalks at large expense, and as

constructive parts of such edifices, with the expectation and

inderstanding that the vaults are temporary, removable at

the mere whim of the Commissioners, and not to be con-

sidered as of equal permanence with the buildings to which

they are adjunct, except in so far as such vaults are removable

for public purposes. The risk of such removal they are

willing to take because remote and of rare occurrence.

An illustration of this is the occupancy by respondent

Saks & Company for over 30 years of the vaults adjacent

to their leased property.

The cases cited in petitioner’s brief do not seem in point,

as they deal either with the attempted grant of exclusive

franchises in the streets of a city, or with rights claimed in

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contravention to those of the public. No such situation is

presented in the cases at bar.

One State case, however, is quoted from at some length,

concerning which a few words may be said. It is the case

of Tacoma Safety Dep. Co. vs. Chicago, 247 Ill., 192; 31

« R. A. (N. 8.), 868. The enforcement of an ordinance

requiring rental for vault space under a sidewalk, the fee of

which was in the city of Chicago, was sought to be enjoined

on the ground that because the city granted a permit to the

company to construct its building according to plans which

included subways beneath the sidewalks, the city was

estopped to deny the company’s right to use the subways free

of charge. The court held that the mere granting of the

permit to erect the whole building, including the space

beneath the sidewalk, the city having a right to regulate the

construction of the building, did not constitute a contract

hor prevent the city from compelling payment of compen-

sation for the use of its property, The court, however, dis-

tinguished the cases theretofore decided by it, recognizing the

power of the city to contract with respect to subsidewalk

space, and the binding force of such contracts upon the city.

The case therefore is not applicable to the facts presented by

the records now before this court,

4. The petitioner's brief concludes with the naive sug-

gestion that the “licenses” for the vaults used by respondents

might be revoked, and new licenses issued carrying rentals

under the act of September 1, 1916, and such proceedings

“concededly” would be regular, and, of course, a like action

might be taken with respect to all vaults built prior to the

date of the act,

(POL ROE Set emma pan

We do not concede the regularity of any such procedure,

but, on the contrary, invite attention to the fact that only

the need of the vault spaces for public uses would justify the

revocation of the many vault permits issued during a period

of over one hundred years preceding the passage of the Vault

Rent act; a fact not only embodied in the permits and con-

tracts under which such vaults were built, but recognized

by the uniform conduct of the municipality for more than

a century,

In conclusion, we submit that the vaults in question were

constructed under contracts with the District, and that these

contracts were necessarily and in express terms subject to

the paramount rights of the public and the exercise by the

Congress of the police power inherent in its exclusive legisla-

tive jurisdiction over the District; but that such contracts

were not subject to any reserved power in Congress to impair

or change at will the obligations of the District contained

therein, especially as to the charge stipulated for the use of

the vaults, such charge having been fixed by the District

itself. In other words, having the power to exact any com-

pensation it desired, the District elected by its contracts to

make no charge other than the permit fees, and thereby ex-

hausted its right to exact compensation as to those vaults

which were the subject of such contracts.

Respectfully submitted,

M. D. ROSENBERG,

FE. H. JACKSON,

CHARLES L. FRAILEY,

‘Attorneys for Respondents.

(3498)

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