United States ex rel. Columbia Heights Realty Co. v. Macfarland

Mr. Chief Justice Shepard

delivered the opinion of the Court:

The main question for determination is whether the commissioners were invested by Congress with the power to make any such regulation.

Secs. 1 and 2 of the act of August 27, 1888, under which said regulation, among others, was promulgated, read as follows :

“Sec. 1. That the commissioners of the District of Columbia be, and they are hereby, authorized and directed to make and publish such general orders as may be necessary to regulate the platting and subdividing of all lands and grounds in the District of Columbia; and no such .plat of subdivision made in pursuance of such orders shall be admitted to record in the office of the surveyor of said District without an order to that effect indorsed thereon by the commissioners of said District.
“Sec. 2. That all spaces on any duly recorded plat of land thereon designated as streets, avenues, or alleys shall thereupon become public ways, provided they are made in conformity with the provisions of sec. 1 of this act, and as such be under the protection of the laws and ordinances in force applicable to public roads out of said city.” [25 Stat. at L. 451, chap. 916.]

Sec. 4 provides that the orders of the Commissioners made pursuant to this act shall have the force and effect of law thirty days subsequent to the day of publication.

Sec. 5 further provides that no subdivision shall be recorded unless made in conformity with the general plan of the city of Washington. Secs. 1, 2, and 5 of the act aforesaid were substantially re-enacted in the Code which went into effect January 1, 1902 (see sec. 1601-1603 [31 Stat. at L. 1427, 1428, chap. 854]), nearly three years after the promulgation of the regulations.

*57It is well settled that the commissioners are ministerial officers who may, in the discretion of Congress, be invested with the power to make rules and regulations concerning local affairs. Walter v. Macfarland, 27 App. D. C. 182, 184, 185. In that case it was said: “Municipal governments exist and exercise authority through legislative sanction. For 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.” See also United States ex rel. Daly v. Macfarland, 28 App. D. C. 552, 558.

Tested by this rule, we are of opinion that the regulation was within the power of the commissioners. The acts of Congress conferring the power in the cases above cited were very different in their tenor and purpose from that relied on in this case. In the Walter Case, the commissioners, under the power to control and repair streets, undertook to narrow one of the original streets of the city. As was said, if this power be implied, then it may be exercised in all of the streets and avenues, to any extent short of closing one of them completely; and it is so great and far-reaching in its consequences, not only to the abutting lotowners, but to the general public also, that it could not reasonably be inferred that Congress had contemplated its extension through the general power to control and repair. In United States ex rel. Daly v. Macfarland the several acts relating to the subject-matter were comprehensive in their details, and cover, as the court said, “not only the licensing of plumbers, and the practice of plumbing, but also specify the authority of the commissioners in respect thereto.”

Sec. 1 of the act under consideration contains a broad grant of power to the commissioners to make all general orders necessary to regulate the platting and subdividing of all private property, subject to the one limitation of sec. 5, that all subdivisions shall be in conformity with the general plan of the city of Washington. It is evident that Congress deemed it expedient to leave all other details in respect of the subject-matter to the discretion *58of the commissioners, and hence conferred a broad power which includes within it all other powers necessary to carry out the general object, — that is to say, all powers germane to the object and reasonably necessary to effectuate it with due regard to the public and private interests involved. That the power exercised in this instance was a reasonable one, we think is sufficiently clear. Before the enactment of the act, the opening of streets, with assessments for damages, as well as benefits incurred by' adjacent property, had been frequent, and was likely to increase rather than diminish in frequency. The property embraced in this subdivision had been assessed for benefits, and the same had been fastened as liens upon the several lots, for which they could be sold to the tax collector. Grant that the lien would necessarily follow any portion of a formerly designated lot into the new arrangement of boundaries and divisions provided in the subdivision, and that the collection thereof might still be fully enforced, nevertheless the difficulties in the way that may well be apprehended would be many and serious. But a far greater difficulty, and apparently an insuperable one, would result from the necessary operation of sec. 2 of the act. This provides that all streets, avenues, and alleys designated in the subdivision shall become public ways, provided they are made in conformity with the provisions of the preceding section. See also Code, sec. 1602. The effect of this dedication of the property to the public — the United States — would be to exempt such parts of the former lots as are contained in the streets and alleys from the assessment, under the provisions of the act approved March 8, 1903 (32 Stat. at L. 961, chap. 992). The result of this would be to extinguish the assessment in case a lot be wholly occupied by the street, or, if not wholly occupied, to cast the entire burden, probably, upon the remaining portions not contained in the street. In the latter event, further delay and litigation would naturally follow. But let it be assumed, for the purpose of the argument only, that the act last mentioned would not apply to assessment liens upon the parts of lots designated as streets and alleys, secured prior to their dedication to public use. In that event the designated street would *59pass into private ownership, through sale for the enforcement of the lien, and thereby cease to be a public way. Such a result would destroy the very purpose of the subdivision and its approval, and work irreparable mischief to persons who might purchase the newly designated lots on the faith of the approval and record of the subdivision. It is contended, however, that the mere approval and record of the subdivision could not effect such dedication of the streets designated therein, but there would have to be a further act of acceptance of the dedication by the commissioners or by Congress. The express terms of the section refute this argument, and it has no support in the decision relied upon. Watson v. Carver, 27 App. D. C. 555, 559. That decision, in fact, upholds the view above expressed, of the operation of the section. The alley, the right to the use of which was in controversy between private owners, had been designated by the former owner in a subdivision made by him, and recorded, and used as a private way. It was only 5 feet in width. As was said in the opinion, it was “a mere cut de sac, of no use to the public, and by the public never used.” The order then in force also required all public alleys to be not less than 10 feet in width. In the discussion of the point, the court, speaking through Mr. Justice Duell, said:

“We have seen that an act of Congress governs the creation of public ways in the District of Columbia; that the commissioners of the District are vested by said act with the power to regulate the platting and subdivision of lands in the District, and to that end may make general orders; and that the provisions of said act must be complied with in order that the streets, avenues, or alleys designated on recorded plats of lands become public ways. It further appears that in conformity with the said act the commissioners of the District, on May 20, 1895, had adopted an order requiring public alleys to be not less than 10 feet in width. Such order was in force when Caldwell recorded his subdivision of lot 14 and no modification of or special exception to the order is shown to have been made which would authorize the acceptance of the proposed alley, which concededly was only 5 feet in width. We are of the opin*60le® that in the absence thereof the proposed alley did not become a public way, that the public acquired no right of way-over it, and that no title vested in the United States.”

In view of the conclusion reached on this point, it is unnecessary to consider the interesting question raised by the commissioners as to the right of the relator to claim recognition in the District of Columbia, in the enforcement of rights assertecL under public authority.

We are of the opinion that the regulation was within the-power extended to the commissioners, and consequently that the court was right in ordering that the rule be discharged and the-petition dismissed. The judgment must therefore be affirmed,,, with costs; and it is so ordered.

Affirmed.