Where no objection was made to a technical defect in the return
which could have been rectified by amendment had attention
seasonably been called thereto, a party who, as disclosed by the
record, was not prejudiced, cannot raise the objection at a later
date.
Quaere whether there is any distinction between "a
parcel" and "a letter" that renders defective a return showing
service of statutory notice by mail.
A property owner cannot urge against a statutory drainage system
the nonexistence of the necessity for drainage, or the fact that he
had adopted a system of his own which is either sufficient or
better than that required by the law. Such a contention would deny
to Congress the right to create any drainage system for the
District of Columbia.
The mere existence of dwelling houses, whether occupied or not,
indicates the necessity for drainage, and the owner is not deprived
of his property without due process of law by a compulsory drainage
act because the house happens to be unoccupied at the time.
The police power is one of the most essential of governmental
powers,
Page 214 U. S. 139
at times one of the most insistent, and always one of the least
limitable.
A wide range of discretion is necessary to make legislation
practical, and the courts cannot be made a refuge from ill advised,
unjust or oppressive laws.
Quaere, and not decided, whether there is any
prohibition on Congress from enacting discriminatory legislation
and whether, in the absence of any express prohibition to that
effect, any prohibition can be implied, especially in regard to the
exercise of police power in the District of Columbia.
See
United States v. Delaware & Hudson Co., 213 U.
S. 366, as to power of Congress to enact discriminatory
legislation under the commerce clause of the Constitution.
If the power of Congress to enact discriminatory legislation as
to the District of Columbia is limited either expressly or by
implication, the prohibition cannot be stricter or more extensive
than the due process and equal protection clauses of the Fourteenth
Amendment are upon the states.
The Fourteenth Amendment does not deprive the states of the
power of classification or require the classification to be
logically or scientifically accurate, and sufficient practical
reasons exist for a classification of resident and nonresident
property owners in the enforcement of police regulations, provided
that the act is impartial as between the classes.
Field v.
Barber Asphalt Co., 194 U. S. 618.
While the enforcement of a statute enacted under the police
power by criminal proceedings against resident owners, and by civil
proceedings against nonresident owners, is a discrimination, if, as
in this case, it is justified by the circumstances, it does not
render the statute unconstitutional, nor is it so rendered by the
fact that the remedy as to one class may be more efficient than the
remedy as to the other.
In determining whether a statute is constitutional, suppositions
and questions which might possibly arise, but which have not
arisen, will be answered when they do arise and affect the
operation of the statute.
The Act of May 19, 1896, c. 206, 29 Stat. 125, providing for the
drainage of the District of Columbia, is not unconstitutional as
depriving nonresident owners of their property without due process
of law or denying them the equal protection of the law on account
of the different methods provided for enforcing the law against
resident and nonresident owners.
29 App.D.C. 563 reversed.
This writ was issued to review a judgment of the Court of
Appeals, affirming a judgment of the Supreme Court, quashing
Page 214 U. S. 140
and vacating certain proceedings taken for the assessment of a
drainage tax upon the property of defendant in error, under the
authority of an Act of Congress of May 19, 1896 -- "An Act to
Provide for the Drainage of Lots in the District of Columbia." 29
Stat. 125, c. 206.
The act provides (1) that each original lot or subdivisional lot
in the District of Columbia where there is a public sewer shall be
connected with such sewer, and where there is a water main,
connected with such water main, under certain conditions, which are
enumerated. (2) It is made the duty of the Commissioners of the
District to notify the owner or owners of every lot required by the
act to be connected with a public sewer or water main, as the case
may be, to so connect such lot, the work to be done in accordance
with the regulations governing plumbing and house drainage in the
District. (3) If the owner or owners neglect for thirty days after
receipt of notice to make such connections, he shall or they shall
be deemed guilty of a misdemeanor, and be punished by a fine of not
less than one dollar nor more than five dollars for each day of
neglect. (4) If the owner be a nonresident of the District, or
cannot be found therein, the Commissioners shall give notice by
publication twice a week, for two weeks, in some newspaper
published in the City of Washington, to such owners, directing the
connection of such lot with such sewer or such water main, as the
case may be:
"Provided, however, that, if the residence or place of abode of
the said nonresident lot owner be known or can be ascertained on
reasonable inquiry, then, and in that case, a copy of the aforesaid
notice shall be mailed to said nonresident, addressed to him in his
proper name at his said place of residence or abode with legal
postage prepaid, and in case such owner or owners shall fail or
neglect to comply with the notice aforesaid within thirty days, it
shall be the duty of said Commissioners to cause such connection to
be made, the expense to be paid out of the emergency fund; such
expense, with necessary expense of advertisement, shall be assessed
as a tax against such lot, which tax shall be carried on the
regular tax
Page 214 U. S. 141
roll of the District of Columbia, and shall be collected in the
manner provided for the collection of other taxes."
The petition of defendant in error for certiorari alleges that
she is a resident of Maryland, and was owner of the property
against which the assessment was made at the time the connections
were made by the Commissioners. She alleges that the assessment or
tax is illegal in its entirety and beyond the power of the
respondent (the District) to collect, in this, that the respondent
had no jurisdiction of her property, "the said act of Congress
being," she further alleges,
"unconstitutional and void because it discriminates between
owners of real estate in said District, the said act not being
uniform and capable of universal enforcement."
She also alleges that the assessment or tax is void in its
entirety because the provisions of the fourth section of the act
were not complied with in certain particulars which were set out.
We do not give them, because two only are relied on -- to-wit, that
the record does not show that notice was mailed to her, as provided
by § 4, and that the record fails to disclose that any
nuisance existed on her property, or that the means of drainage
already there were unsanitary or unsufficient.
A rule to show cause was issued, to which the District made
return. The return was verified by the Commissioners. It denied
some of the allegations of the petition, averred the
constitutionality of the act, and that due and legal proceedings
were taken thereunder in making the connections and assessing the
tax, including notice to petitioner. To the return were attached,
to use the language of the Court of Appeals, "copies of such
pertinent official papers and records as were in the custody of the
District."
The writ was ordered to be granted. The return to the rule was
made the return to the writ. Subsequently, the court, reciting that
the cause having been argued by counsel, and submitted to the court
on the writ of certiorari, and the return thereto filed herein by
respondent, adjudged the tax to be "illegal and void," and that it
should be "quashed and held
Page 214 U. S. 142
for naught." The respondent was "forthwith directed to cancel
the same on its tax records."
The judgment was affirmed by the Court of Appeals. 29 App.D.C.
563.
Page 214 U. S. 147
MR. JUSTICE McKENNA delivered the opinion of the Court.
Defendant in error, to sustain her contention that the record
does not show notice to her of the proposed work, says that it
shows only that a "parcel" was mailed to her, not a letter, and
that the contents of the parcel are not disclosed. To the extreme
technicality of this contention, the Court of Appeals answered that
no objection was made to the return, and that it averred that the
officers and agents of the District made diligent search for
defendant in error in the District, and that she could not be found
there, and that plaintiff in error believed that she was a citizen
and resident of the State of Maryland. The court also pointed out
that the return alleged that notice was given to her by
publication, as required by the act of Congress, and by registered
letter, postage prepaid, which was received by her. A registry
return receipt, with her signature attached thereto, was made part
of the return. Commenting on this, the court said that, if there
was a defect in the return, it was purely technical, and could have
been corrected. "Upon the granting of the writ," the court
observed,
"had objection been made to the adoption by the Commissioners of
their preliminary return, the court undoubtedly would have
permitted an amendment to the record for the purpose of supplying
the defects now complained of by petitioner [defendant in error
here]. Having, then, made no objection to the form of the return,
it is too late to do so now."
If we could concede that the record justifies the distinction
made by defendant in error between a parcel and a letter, we should
adopt without hesitation the reply made by the Court
Page 214 U. S. 148
of Appeals to the contention based on that distinction, or upon
any defect in the return which could have been removed if objection
had been seasonably made.
The second contention of defendant in error is that the record
fails to disclose that any nuisance existed on her property, or
that the means of drainage already there was unsanitary or
insufficient, or that any necessity existed for making the
connection. This contention seems to be made in this Court for the
first time. It certainly received no notice from the Court of
Appeals, and the fact that it assumes that there was means of
drainage on defendant in error's lot is not alleged in her
petition. But, suppose the fact had been alleged; a property owner
cannot urge against the drainage system of the District that he had
adopted a system of his own, and challenge a comparison with that
of the District, and obey or disobey the law according to the
result of the comparison. The contention virtually denies any power
in Congress to create a system of drainage to which a lot owner
must conform.
Finally, defendant in error attacks the validity of the law, and
bases attack, to use her words,
"upon certain salient vices in the act which are apparent on its
face, of which the principal are --"
"(a) The attempt to give controlling evidential effect to the
mere existence of an improvement in case of improved property, and
to the
ex parte certificate of the health officer in the
case of unimproved property, thus violating the 'due process'
clause of the Constitution."
"(b) Because the act lacks the requisite uniformity, inasmuch as
it undertakes to provide one law for property of residents and
another for property of nonresident owners in said District."
"(c) Because the act is not capable of universal enforcement,
and creates unequal burdens."
"(d) Because the act is incapable of uniform enforcement as
against all property in the District of Columbia."
The first objection was not expressed in the petition nor
Page 214 U. S. 149
made in the lower courts, and we might therefore decline to
entertain it. At best, defendant in error can only be heard against
"the evidential effect of the mere existence of an improvement,"
because her property does not come within the category of
unimproved property. Her improvements are dwelling houses, and
their mere existence indicated the necessity for drainage. That
they may sometimes be vacant is unimportant. What rights owners of
lots differently improved or owners of unimproved property may have
is no concern of defendant in error. Her contention, therefore,
that the act deprives her of due process of law, is unsound.
The other objections expressed the same fundamental idea --
to-wit, that the act discriminates between resident and nonresident
owners of property, and, because it does, it is void. The Court of
Appeals yielded to this contention, following the authority of
McGuire v. District of Columbia, 24 App.D.C. 22.
The defendant in error asserts this discrimination and argues
its consequences at some length, but does not refer to any
provision of the Constitution of the United States which prohibits
Congress from enacting laws which discriminate in their operation
between persons or things. If there is no express prohibition of
such power, may prohibition be implied from our form of government?
Upon that proposition we need not express an opinion. If
prohibition exists, it must rest on all the powers conferred by the
Constitution. This Court, however, has just held, in the case of
United States v. Delaware & Hudson Co., 213 U.
S. 366, that Congress may, in the exercise of the powers
to regulate commerce among the states, discriminate between
commodities and between carriers engaged in such commerce. And it
was said that the assertion that "injustice and favoritism" might
"be operated thereby" could "have no weight in passing upon the
question of power." In the case at bar, we are dealing with an
exercise of the police power -- one of the most essential of powers
-- at times, the most insistent, and always one of the least
limitable of the powers of government.
Page 214 U. S. 150
However, the question of the power of Congress, broadly
considered, to discriminate in its legislation is not necessary to
decide, for, whether such power is expressly or impliedly
prohibited, the prohibition cannot be stricter or more extensive
than the Fourteenth Amendment is upon the states. That amendment is
unqualified in its declaration that a state shall not "deny to any
person within its jurisdiction the equal protection of the laws."
Passing on that amendment, we have repeatedly decided -- so often
that a citation of the cases is unnecessary -- that it does not
take from the states the power of classification. And also that
such classification need not be either logically appropriate or
scientifically accurate. The problems which are met in the
government of human beings are different from those involved in the
examination of the objects of the physical world and assigning them
to their proper associates. A wide range of discretion, therefore,
is necessary in legislation to make it practical, and we have often
said that the courts cannot be made a refuge from ill advised,
unjust, or oppressive laws.
Billings v. Illinois,
188 U. S. 97;
Heath & Milligan Manufacturing Co. v. Worst,
207 U. S. 338. In
the light of these principles the contentions of defendant in error
must be judged. The act in controversy makes a distinction in its
provision between resident and nonresident lot owners, but this is
a proper basis for classification. Regarded abstractly as human
beings, regarded abstractly as lot owners, no legal difference may
be observed between residents and nonresidents; but, regarded in
their relation to their respective lots under regulating laws, the
limitations upon jurisdiction, and the power to reach one and not
the other, important differences immediately appear. We said in
St. John v. New York, 201 U.S. at
201 U. S. 637,
not only the purpose of a law must be considered, but the means of
its administration -- the ways it may be defeated. Legislation, to
be practical and efficient, must regard this special purpose as
well as the ultimate purpose. This was in effect repeated in
Field v. Barber Asphalt Paving Co., 194 U.
S. 618, where a privilege to protest
Page 214 U. S. 151
against a street improvement, given by the statute assailed to
resident property owners and denied to nonresident property owners,
was sustained, and the statute held not to violate the equality
clause of the Fourteenth Amendment.
See Travelers' Ins. Co. v.
Connecticut, 185 U. S. 364.
It is not contended that the act of Congress is not impartial
within the classes. The act treats all resident lot owners alike
and all nonresidents alike. It is contended that there is a
difference in the procedure prescribed in case of default, and
nonresident lot owners are thereby discriminated against, though
they stand in the same relation to the purpose of the law as
resident lot owners. In other words, nonresident lot owners are not
treated the same as resident owners in like situation, because,
against resident owners, the coercion of the law is by criminal
punishment, while against nonresident owners, the remedy is by
civil proceedings -- the District does the work that the
nonresident owners neglect, and charges the expense thereof on
their property. This is a distinction, a discrimination, it may be
called, but it has even more justification than that sustained in
Field v. Barber Asphalt Paving Co. supra. The statute
under consideration in the case at bar enjoins a duty on both
resident and nonresident lot owners -- a duty necessary to be
followed to preserve the health of the city. There is a difference
only in the manner of enforcing it -- a difference arising from the
different situation of the lot owners, and therefore competent for
Congress to regard in its legislation. In other words, under the
circumstances presented by this record, the distinction between
residents and nonresidents is a proper basis for classification. It
might not be under other circumstances.
Blake v. McClung,
172 U. S. 239,
s.c., 176 U. S. 59;
Sully v. American National Bank, 178 U.
S. 289.
That the remedy in the statute under consideration against
nonresident owners may be more efficient -- more completely fulfill
the purpose of the law -- than that against resident owners is
beside the question. Indeed, the fact may be disputed. Usually the
most emphatic and efficient enforcement
Page 214 U. S. 152
of a law is through criminal prosecution. At any rate, it is
hard to believe that there will be many resident lot owners whose
delinquency under the statute will be so resolute that it will
stand against repeated charges of crime and the consequent
penalties. But, be that as it may, it was for Congress to decide
whether such possibility should be risked, rather than incur the
greater possibility of more delinquents in so numerous a class as
resident lot owners if the District was to first bear the expense
of the drainage, and collect it afterward by civil proceedings.
Other criticisms are made of the law to display what is alleged
to be its lack of uniformity. For instance, a supposition is made
of tenants in common, some of whom are residents and the others
nonresidents, and the possible difficulties that may arise from
such ownership under the act, and it is asked if the property
belongs to resident minors or insane persons, or persons under
legal disabilities, can the act be enforced against them or against
their property? To these suppositions and questions we answer that
it will be time enough to reply when a case arises in which they
are presented, and to determine then the operation of the act upon
the persons enumerated.
Judgment reversed with directions to reverse the judgment of
the Supreme Court, quashing the tax, and to dismiss the
petition.
MR. JUSTICE WHITE did not hear the argument, and took no part in
the decision.
