Evening star. [volume] (Washington, D.C.) 1854-1972, 1895-01-26
WATER TAX CASES
Arguments as to the Validity Of the
COMMISSIONER Assessments.
POINTS MADE BY GENERAL BIRNEY
Mr.. A. B. DuvaIl Defends the Dis
trict's Action.
LARGE AMOUNT INVOLVED

Chief Justice Bingham in Circuit Court
No. 2, this morning considered the ques-
tion of the alleged defective water main
assessments. The question came before the
court in several cases, wherein judgments
in certiorari were asked against the Dis
trict because of Irregularities in making
the assessments, and because of the in
validity of the act Of the legislative as
sembly authorizing such assessments.
The cases heard today were those Of
August Burgdorf and Weaver, Collins and
others. In the Burgdorf case Messrs. A. A.
and T. w. Birney represented the plaintiff,
while Gen. William Birney appeared in the
other cases.
Gen. Birney's Contention.
Gen. Birney was first heard, and he ar
gued that, while under the late Water
Register Cox the laying Of water mains
were ordered by him and the assessments
thereon were approved by him, those duties
had, since the death Of Mr.. Cox, some ten
years ago, been performed by the chief
clerk of the water department and the Dis
trict Commissioners. The office of water
registrar never having been abolished, Gen.
Birney contended, the duties to be per-
formed by the register could not lawfully
be done by the chief clerk of the office or
even by the District Commissioners. There
fore, said Gen. Birney, when the order for
the laying of water mains was made by
the chief clerk of the registers office and
not by the Commissioners, the order was
void.
Where improvements were designed, ex-
planned Gen. Birney. the Court of Appeals
had decided that ample prior notice OF
such design must be made to the persons
interested. giving them full opportunity
to be heard. That court, said Gen. Birney,
had also held that assessments e,,; for in,
petition by land owners for such improve
ments.
The objections he had urged, remarked
Gen. Birney, seemed to him SO Wen iound-
ed, and so clearly demonstrated the In
validity of the proceedings complained of,
that he did not deem necessary any ex-
tended argument.
Mr.. A. 3. Duvall, who appeared on be-
half of the District, explained that before
proceeding to answer Gen. Birney's conten-
ton, he desired that the points raised in
the Burgdorf case should be presented.
The Points Raised.
In the Burgdorf case, explained Mr.. T.
w. Birney, the points raised go further
than to attack the Irregularities alluded to
in the preceding cases in the matter or the
assessments, the act of the legislative as
sembly relating to the laying OF water
mains and assessments thereon being, ne
contended, unconstitutional. While II Is
possible. remarked Mr.. Birney, for the Dis
trict Commissioners to secure the passage
of an act of Congress authorizing reassess-
ments, such new assessments could not be
made on work done under authority OF an
unconstitutional law.
The act in question Of the legislative
assembly of the District, continued Mr..
Birney, is invalid because, first. 1t provided
no opportunity where persons a1ected
could be heard as to the rate of assess
merits, cost of work. etc. Second, the as
sess sment was not made on the basis of
benefits to the abutting property to be as
sessed. but without regard to such bene-
fits. Third. the assessment was made with
out regard to the cost of work or the value
of the improvements. In support of these
objections Mr.. Birney read numerous au-
thorities which, he said, fully confirmed
him in all of his contentious.
The authorities quoted by him, argued
Mr.. Birney, clearly showed, among other
things that assessments cannot legally
exceed the benefits arising from the i'm
provements made. But, said he, not OILY
did the assessments exceed the benefits in
numerous cases, but the assessments were
new made on the basis of prices for work
paid many years ago when labor and ma
terial were much more costly.
Ante-InprOvcment Work Necessary.
Before improvements could lawfully be
sity for such improvements must be shown.
and property owners likely to be affected
must previously be made acquainted with
the estimated cost of such improvements.
1t was also necessary, said Mr.. Birney, to
secure the assent of majority of the
land owners. But, he said, where a major
ity could be obtained, the District Commits
sioners ordered the work done under the
act Of June II, 1890. That act, however,
mol, nI1fh
viding that the Commissioners should have
power to lay water mains, containing moth
ing which authorized them to make assess
ments thereon. AS there was no express
statutory authority therefor no power to
levy assessments and create liens could
therefore be exercised by the Commits
sionerS.
Another objection was urged by Mr.. Bir-
ney in this, that parts of lots were de-
scribed as 'lot Of" such and such a lot
Such description has been held by the
Court in General Term to be insufficient,
and the assessments in such cases were in
valid. In conclusion, Mr.. Birney argued
that If the law makes no provision for a
hearing of objections to the assessment, 1t
is within the rule which prohibits the TAX
ing of property without compensation and
is in direct conflict with the fourteenth
amendment of the Constitution.
Mr.. DuvnlI for the District.
On behalf of the District, Mr.. A. &. Du-
vail said that the matter presented was
one of considerable moment and import
ance, but he thought that the court would
conclude that the matters complained Of
have been done regularly and legally. He
agreed, however, that If lots were describ-
ed as ''iots or certain lots the description
was bad. Referring to the Burgdorf case,
Mr.. Duvall said it covered some thirty diff
ferent pieces of property, and was, there
fore, subject to the objection of multifar-
BUSINESS.
The District Commissioners, asserted Mr..
Duvall, succeeded to the powers of the Of
ficers of the late legislative government of
the District, and We're, therefore, fully en-
powered and authorized to perform all
duties formerly performed by the officers
of the territorial government of the Dis
trict in the matters complained of. Allud-
ing to the objection thu land owners af-
fected by the laying of water mains had
not been given due notice, Mr.. Duvall con-
tended that the law does not say in terms
that there was right to have such notice.
But, admitting that 1t did, the court would
have no right to review the proceedings
by writ in certiorari. Besides, the Court
of Appeals had held that only in compul-
sorry system work was notice required.
Speaking of the matter of benefits, Mr..
DuvaH denied that it was necessary to find
the word benefits in the law. That bene-