Walter v. Macfarland

Mr. Chief Justice Shepard

delivered the opinion of the Court:

The commissioners, who have succeeded to the powers formerly conferred upon the hoard of public works in respect of street control and improvement, rely upon section 77, D. C. Rev. Stat., for their authority to make the proposed changes in the said streets. That section reads as follows: “The board of public works shall have entire control of and make all regulations which they shall deem necessary for keeping in repair the streets, avenues, alleys, and sewers of the city, and all other works which may be intrusted to their charge by the legislative assembly or Congress.”

Municipal governments exist and exercise authority through legislative sanction. Nor convenience of administration they are created as agents of government for certain local purposes, and have such powers only as are expressly conferred or may be fairly and reasonably implied as necessary to carry into effect such as have been expressly granted. Barnett v. Denison, 145 U. S. 135, 139, 36 L. ed. 652, 653, 12 Sup. Ct. Rep. 819. And while the laying out, opening, and improvement of streets in towns and cities are matters of peculiar fitness for municipal regulation and control, powers relating thereto must be similarly construed. State v. Mobile, 5 Port. (Ala.) 279, 310, 30 Am. Dec. 564; St. Vincent Female Orphan Asylum v. Troy, 76 N. Y. 108, 112, 32 Am. Rep. 286; Lackland v. North Missouri R. Co. 31 Mo. 180, 185; Atty-Gen. ex rel. Holtz v. Heishon, 18 N. J. Eq. 410; Heiskell v. Baltimore, 65 Md. 125, 151, 57 Am. Rep. 308, 4 Atl. 116.

The municipal organization of the District of Columbia is of a peculiar character. There is no general organic law covering all of the ordinary powers usually conferred in the creation of municipal corporations throughout the several States of the Union, — no formal municipal charter, so to speak.

*185The commissioners, though vested from time to time with the power to make important regulations, are ministerial officers. There is no special municipal council or legislative body, as was the case under the preceding form of municipal government. Congress possesses and has retained the powers of a local legislature. Sometimes it enacts special laws relating to local affairs, and sometimes it delegates to the commissioners extensive powers to make rules and regulations respecting specified subjects. The commissioners have no authority to raise revenues for the support of the local government, and those raised by the direct authority of Congress are not turned over to them for appropriation and expenditure at discretion.

The title in fee to all streets and public reservations in the city of Washington is vested in the United States, and the public parks have been specially intrusted to the care and supervision of one of the departments of the general government. Congress has specially provided, from time to time, for the improvement and extension of the old, established streets, as well as for the opening of new streets, and the changing and closing of others. While such works are provided to be done under the general supervision of the commissioners, their discretion in all matters, including expenditures, is limited by the authorizing acts, and the special appropriations for the purpose. The commissioners cannot close streets; they cannot authorize private encroachments, occupations, or obstructions; they are not permitted to authorize the construction of a street-car line in them.

In the light of these facts, and in conformity with the general rule of construction before stated, we are constrained to hold that the commissioners have not the power to narrow the roadway of the streets in question, notwithstanding it may be to the public advantage. The question is not one of expediency, but of power. The exclusive control of the streets, and the power to make regulations for keeping them in repair, conferred by section 77 aforesaid, does not, in our opinion necessarily imply the power to change their width at discretion after they have been established and improved, and have gone into general public use. If the power to narrow the width of the roadway at all, *186in a single street, can be implied from the general grant of power to control and repair, then it may be exercised to any extent, in the discretion of the commissioners, short of closing it completely. And if a single street or park thereof can be so narrowed, then all of the streets and avenues of the city may be subjected to the same process at discretion.

The power contended for is great, and far-reaching in its consequences; its exercise is of the greatest importance, not only to all owners of abutting property, but to the general public also; and we cannot believe that Congress contemplated its extension through the general grant of the power to control and repair.

Section 225, D. C. Rev. Stat., has been relied on by the appellants, in support of their contention, as expressly limiting the power of the commissioners to reduce the width of a roadway in a street to less than 35 feet. This section authorized the District authorities “to set apart from time to time, as parks, to be adorned with shade trees, walks, and inclosed with curbstones, not exceeding one half the width of any and all avenues and streets in the said city of Washington, except Pennsylvania, Louisiana, and Indiana avenues, and 4% street between the city hall and Pennsylvania avenue, leaving a roadway of not less than 35 feet in width in the center of said avenues and streets, or two such roadways on each side of the park in the center of the same; but such inclosures shall not be used for private purposes.”

If section 77 were conceded to extend the power contended for on behalf of the appellees, then section 225, considered in connection with it, would probably have the effect to limit the narrowing of roadways in all streets to 35 feet. But this would apply to but two of the streets in question, because the reduction in the third does not bring it within that limit. Believing, however, that section 77 does not confer the power to narrow the streets or roadways at all, section 225 must be regarded as conferring an independent power not elsewhere provided for. Moreover, while section 225 appears later in the order pursued in the revision of the District statutes, it was enacted by Congress nearly a year before that embraced in section 77. Por the *187reasons before given we regard the meaning of section 225 as of no practical importance in this case, though it seems to indicate the general intention of Congress that all roadways in streets shall be at least 35 feet wide.

It follows that the decree dismissing the bill must be reversed, with costs, and the cause remanded with direction to grant the injunction prayed for. Reversed.