Evening star. [volume] (Washington, D.C.) 1854-1972, 1864-08-26


hands OF the Corporation to execute the power
not py taxation, but by water rents. The work.
ihgs OF mat system proved its insufficiency
And they applied in 1863 for an enlargement
not OF the power, that was sufficiently ample
put OF the meansIto execute it. These means
were given by the grant Of power to levy and
collect water tax-Rot only on the property
to be benefited by mains thereafter to be made,
put also on that benefited by those already
Iaid-not upon property benefited by mains
lald or to be laid by the city, but upon those
also which had been or should thereafter be
laid by the United States. This was to dis
tribute the burthen equally upon alliwho re-
ceived the benefit.
Accordingly we do not find any additional
power to lay the mains in any part of this set,
and we are to look for it in the original act,
unless it is confined and restricted by the la st
clause of the first section already quoted
There is primary rule in the construction
Of statutes, that effect shall be given to every
part Of 1t if possible; and again that the mean.
ing OF the legislature is to be ascertained from
the whole law, the original act and its amend.
ments. Nothing is more clear from the perusaI
of these two acts than this, that a general dis.
cretionary power over the subject is given In
the original law, and that q distinct power is
given in the amendment. This last power is
not discretionary. 1t is mandatory and one
which the Corporation cannot refuse to exc.
cute. The interest Of third parties is concerned
In Its exercise and ample power to insure its ex-
ecution is given along with it. They must Law
the mains on the application of the owners OF
majority of the real estate, &c. This rule is
well settled, and good illustration of it will
be found in Mason vs.. Pearson in Towards
reports.
We have, then, in these statutes two distinct
powers, and the means to execute each of them,
their own motion by the Corporation legisla-
ting for the public good; the other mandatory,
to be exercised upon application to them in the
manner prescribed by the law, by corporators
for their especial local benefit.
There is no inconsistency between these
powers. They may well stand together. If so,
distribution of this water is to be restrained by
the will Of the parties whose property is to be
taxed to defray the expense, the beneficent act
OF Congress in giving 1t to the Corporation will
lose half OF its value and the public benefit de-
signed in that gift would be defeated.
This act OF Goth June. 1864, is but part Of the
system adopted by the Corporation, under these
acts of Congress, for the distribution of water.
1t does not give to the Water Board the full
power OF the Corporation, but creates it as one
of the instrumentalities for executing the laws
OF the Corporation, and in the I'd section de-
fines its general powers. These powers ara
ministerial, with authority to prescribe rules
and regulations in the exercise of them. They
are TO take charge OF the mains after they have
been ordered by the corporate authorities, either
under their discretionary power, or on the ap-
pllcatlon OF the owners of the real estate and
to see to their being laid, and to the distribu-
ton of the water theretrom. They have no
power to say what mains shall be laid, or
when. or where. That is reserved to the Coun-
cils l am, your most obedient servant,
L.
Attorney, Corporation of Washington.
Since writing the foregoing opinion, I have
read again the resolution of the Board and see
they may not have intended to conf1ne their
inquiry 10 water mains and the tax therefor,
and proceed to examine their powers under
the 5th section to levy and collect q tax for
re-plugs.
The language of this section. in the pIainest
terms, confers On the Water Board power to
leuy and collect, through the Water Registrar,
an annual tar, which shall be due, &c.
In the section Immediately preceding they
have followed the very words of the act of
Congress, and levied tax for the water mains,
and 1t Is difficult to understand why they have
in this 5th section departed from that course.
In 80 far as they have delegated the power
to the Water Board to slevy'' the tax
authorized by the I'd section of the act
of Congress of Sd of March, 1863, they have
in my judgement entirely transcribed their
power, and the grant to the Water Board is
void. The Councils must themselves by law
impose or levy tax, as they have done in the
4th section of the act of Goth June. They can
not delegate that power. This rule take to
be inf1exibly fixed, that where a power to levy
a tax is given 1t must be exercised by the per-
son or body to whom it is given, and not by
any agent or appointee of such person, or body
corporate.
In my opinion the Water Board has no
power to levy the tax authorized by the 5th
section, act Goth June. Very respectfully,
Jos. II. BRADLEY, Attorney, &c.
21st August, 1854.
On motion Of Mr.. Semmes, the communica-
ton was referred to the City Councils.
Adjourned.