Macfarland v. Byrnes

Mr. Justice Morris

delivered the opinion of the Court:

1. With reference to the motion to dismiss the appeal in this case on the ground that the transcript of record was not filed here in time, we find no merit in the proposition that the jurisdiction of the court below to grant an extension of time was exhausted by the first extension granted. We have decided that, after the lapse of the time prescribed by our rules for filing the transcript of record here, or after the lapse of any extension of such time granted during the first period, the court below is without authority to grant any further extension. District of Columbia v. Roth, 18 App. D. C. 547. But we find no good reason for refusing that authority to the court, as long as the cause remains within its jurisdiction; and the cause remains within its jurisdiction for this purpose during the whole period of the extension. Hule 15 of the rules of this court, which confers the authority under which the court below has assumed to act, provides that “ it shall be the duty of the appellant, within forty days from the time of the appeal entered and perfected in the court below, unless such time for special and sufficient cause be extended by the court below, or the judge thereof by whom the judgment, decree or order may have been rendered, such time to be definite and fixed, to produce and file with the clerk of this court a transcript of the record of such cause.” It is argued that this means only one extension, because otherwise the court below might grant extensions from time to time indefinitely, and the time of extension would therefore not be “ definite and fixed.” But that this is not the meaning of the rule seems to us to be very plain, when it is remembered that under the authority to grant one extension, if only one is granted, the court could allow as long delay as by many extensions. The rule is intended for the purpose of justice. It confers a discretionary power to grant an extension for good and sufficient cause; and it is not to be presumed that the discretion will be abused. The " good and sufficient cause ” may well continue beyond the first period of extension. We may assume that there was no reason for urgency in this case, and that there may have been a tacit understanding between the parties not to push it until a decision should be had from the Supreme Court in the case of Davidson v. Wight. But whatever the good and sufficient cause may have been, we are of opinion that it was not the purpose of the rule, and that it is not its requirement, to limit the court below to one extension of time; provided of course, that any second extension is made, as in this case, within the lifetime of the first extension; and provided, also, that the length of the extension and the number of the extensions are not unreasonable.

The motion to dismiss the appeal must therefore be denied.

2. Coming to 'the merits of the cause, and assuming it to be true, as stated, and as we may readily infer from the record, that the assessments for benefits made by the jury in this ease were vacated by the court below in the order now appealed from in pursuance of our decision in the case of Davidson v. Wight, we are clearly of opinion, that, in consequence of the adverse decision of the Supreme Court of the United States in that case, the order must be reversed,—■ unless, indeed, there is some element of illegality apparent in this record which was not involved in the case of Davidson v. Wight.

3. It is suggested that there are other elements of illegality, and that the assessments in question were unreasonable, unequal, and unjust. This we have no means of ascertaining. There is nothing in the record upon which we can base an opinion. In this connection the record contains nothing but the award or verdict of the jury, and the exceptions of the appellants thereto. There is neither testimony nor anything to supply the place of testimony. Plainly, therefore, there is nothing upon which we can review the decision of the court below. Ordinarily, of course, this would be a sufficient reason for the affirmance of that decision; but it is very apparent that the court below did not pass at all on this point, and that it would be unfair now to the parties in interest to presume that it did.

4. There is, however, a third consideration, which we cannot ignore in the disposition of this ease. Py the act of Congress of June 6, 1900, already mentioned, it was provided that, if for any reason the assessments for benefits should be declared void, the Commissioners should make application to the court for a re-assessment. This evidently has no reference to the invalidity consequent upon judicial decision of the unconstitutionality of the act of Congress of March 3, 1899, for there could then, of course, be no lawful re-assessment, since the foundation for the whole proceeding would fail. The holding of this court that the act of March 3, 1899, was unconstitutional did not therefore avail to set in motion the instrumentalities of the act’ of June 6, 1900, for re-assessment. And when the Supreme Court of the United States held the act of 1899 to be a constitutional and valid exercise of legislative authority, all reason for re-assessment under the act of 1900 vanished. Nevertheless, by the discordant tenor of judicial decision the appellees were induced to forego a right which should now be restored to them, that of summoning a second jury of assessment under chapter 11 of the Bevised Statutes of the United States for the District of Columbia, under which these proceedings were instituted and have been prosecuted, if they now desire to avail themselves of that right. They may prefer to forego that right; and they may prefer no longer to contest the propriety and justice of the assessments. If they so elect, the court will, of course, enter the proper order or decree in the cause. If, on the other hand, they elect further to contest the matter according to law, they should have the opportunity to do so. This court, therefore, should not now direct any final order or decree to be entered by the court below in the premises. r

The order appealed from, and only so far as appealed from, will be reversed; and the cause luill be remanded to the Supreme Court of the District of Columbia, with directions to vacate such part of said order, and for such further proceedings in the cause according to law as may be right and just. And it is so ordered.