Evening star. [volume] (Washington, D.C.) 1854-1972, 1873-09-18
TEE SEWER
AGE CERTIFICATES.
-eiF legality Affirmed.
-aNtos or HONS. CALEB CUSHING AND JERR
&. BLACK.

s. BLACK.
The Aes Of ne legislature Talid-R is Not in
CQllstct ,Cih the Organic Act-TR Improvement
L'OdE Oas-Ths Certificates Not a Debt of, but
z DEBT To, the District The Action Of the Legis-
ydtiUe Assembly, Conclusive.
Hon. Caleb Cushing and Hon. j. S. Black,
ex-Attorney General of the United States, have
given an opinion with reference to the validity
OF the act of the last Legislature authorizing
the issue of certificates for sewerage, which sets
forth that the act divides the territories of these
two cities into five sections, the limits of which
are defined by, or have necessary reference to.
the typographical features of the territory, in
relation specially to the land-fall of the differ
ent parts thereof, and to the water courses by
which it IS traversed, and which contribute TO
and, in certain degree, control the transmits
sion of surface water or sewerage into the great
receptacle of the river Potomac.
THE DIFFERENT SECTIONS.
or those five sections; one is naturally COM
posed OF the territory of the city of Georgetown.
The other four cover the surface of the larger
territory OF the city of Washington. Here,
owing to the natural CONFORMATION of the land
ana the several water-cOuTses. particularly the
liber and ITS branches, James creek, Slash run
and Rock creek, twas found necessary to make
some OF the sections larger than others, with the
result OF devOiying much more of expenditure
on some sections than on others. Thus section
three, bounded by X street, 10Th street, Rock
creek ana the Potomac, is naturally separated
from the land 70 the east of it, and has direct
and near outlet for its drainage and sewerage
INTO the Potomac. On the other hand, in the
central. southern and eastern parts of the city
the confguration of the surface OF the land, the
remoteness of most of it from the Potomac, and
in large part of il the necessary or convenient
subordiDation of any system of drainage and
sewerage to the course of the Tiber and Its
athuents, eXacted the formation of large sewer
age sections and heavier expense in the con-
strucbon of the sewers.
THEORY OF THE ASSESSMENTS.
Thus it was plain to see that if the whole ex-
pense of drainage and sewerage was defrayed
hy general assessment on all properties or the
city unfortunately, the result would be to
compel group of property in one part of the
city requiring, by reason of its natural config-
uration, but little cost in this respect to paw for
the drainage and sewerage Of some other part
OF the'city requiring greater cost, and, in the
same proportion, to diminish the assessment on
the latter sections by which it ought to be paid;
In other words, to produce an unequal and unjust
distribution of the cost of drama ge and sewerage
These considerations dictated the subdivision
Of the cities of Georgetown and Washington
into sections, as provided by the act in ques-
ton, and also indicated the proper measures for
the appOrtiOnment of the expense as equitablv
as possible among the several groups of proper
" in the respective sections according to the
value of the property and its direct interest in
lts particular and separate sub-system of drain
age and sewerage.
THE PAYMENT OF ASSESSMENTS
ana IN order to accommodate the assessed
property holders, the assessments are made
payable in five equal parts or annual install
ments, commencing in the month OF july, 1873
lhe first instalment TO be paid within thirty
u'i9 - al Ter nOLlCe OF the completion of the work
on particular section and the assessment
thereof, and the second, third, fourth and fifth
tnstalments within one, two, three and four
years, respectively, from the date of such no
tice.
THESE ARRANGEMENTS,
in respect as well of special assessment applied
70 property directly Interested as in respect to
the privilege accorded to property holders as
sessed, seem to have been suggested by similar
provisions of the act of Congress of March g.
1868, regulating the collection of a water-tax ON
real property within the limits ha ri Of
Washington. (See United States laws, vol 10
?. eotl And the provisions Of this act of Con-
ordinance Of the city of Washington.
THE CERTIFICATES CT INDEBTEDNESS.
10 accomplish TINS object, it is further enact
ca by Tie act OF assembly Inquestion that the
Board OF Public Works may issue certificates of
the indebtedness OF the property-hOders for
work done and to 'be done, not exceeding fine
amour. char geable to private property, bearing
interest at the rate of eight per cent. per am
mum, and payable in four annual instruments
corresponding to the four deferred payments
due from property-holders of the respective
drainage and sewerage sections OF the cities OF
Washington and Georgetown.
THE PRINCIPAL QUESTION
fer which legal opinion is asked is whether the
assessment of taxes for sewerage on the several
sections Of the territory are or are not in con-
rict with the provision OF the organic act which
provides that nc lands or other property shall
be liable in any one year to higher tax for all
general objects than 50 on every 100 of the cost
value thereof? The opinion assumes, though
the fact Is Lot stated, that the taxes for general
objects have already reached the maximum or
at least that the taxes for sewerage il added To
the general taxes, would subject the propertv
III some districts to higher tax than per cent.
and says: eli, therefore, these are taxes for
general objects, territorial and municipal and
not special taxes, in particular sections for
their particular local Improvements the act OF
the Territorial Assembly which authOrizaa
them and the assessment of them are Ultra pirey
and void. But that they are local and not gem
eral in their nature and character is a PROPOSE
ton which, in view of the facts already stated
we think too plain to be discussed"
THE IMPROVEMENT LOCAL.
A sewer may be absolutely necessary to the
enjoyment, or may add greatly to the value OF
no profit or advantage whatever TO persons re-
siding elsewhere, though within the same citv
territory, or state, To say that such an i'm
pTovenent Is not local and particular to the
section or district benefited by it, is, in our
opinion, as near TO an absurdity as sensible per-
sons are ever in the habit of Coming A short
sewer, cheaply and easily made, is ali that NAV
be needed Ia one section while very expensive
works are required TO render other and remote
parts Of the same city inhabitable.
THE OPINIONS OF TIE LEGISLATURE coNcLU
sIvE.
But, assuming IT to be doubtful whether sew
erage in particular places is or is not particu-
lar and local Improvement for which the in
habltants OF the property of the section specially
benefited by it may fairly be required to paw
by special tax whose function is IL TO resolve the
doubt? The organic act does not declare what
leave said improvements to be classified by the
territorial assembly land to pay for one class by
general tax, and for another by a special assess
ment. The assembly, by the act before us, has
ranged the sewers among local improvements
of the several sections. Is not this a determine
ton OF the question? Can any judicial or other
authority get behind IL?
We are of the opinion that the judgment of
the legislature upon this point, as expressed in
the act under consideration is conclusive.
THE TOWER OF COURTS
II the courts should be OF opinion that the
sewers are not local improvements, still they
coulC not deny that the contrary is settled by the
proper authority, and that makes an end Of the
dispute. The courts do not revise legislative
acts because they are supposed to be erroneous
Ibcy can only set them aside as void if it Do
shown that the boz which passed them is with
out Jurisdiction ofsauthorIty over the subject
matter.
NOT IL CONFLICT WITH THE ORGANIC ACT
. MI. cushing and MIR. Black give as their CON
clusion that g the act OF the Territorial Assem-
bly, OF the 10Th OF June, 1873. runs clear of the
provision IN the organic act of Congress, which
fOrblds tax of more than two per cent for
general objects, and does come within the otber
clause, which authorizes special taxes in mar
N WH =.