
    JAMES WELCH v. THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA AND TIMOTHY LUBEY, WATER REGISTER.
    Equity. —
    No. 5120.
    A lot-owner In Georgetown who uses the water from the Potomac aqueduct, is not exempt from water rates for the purpose of defraying the current expense incident to the use of such water. The United States have never entered into any contract by which the citizens of that city who use water from such aqueduct are to be forever exempt from water rates or charges, and the act of July 12. 1876, is not unconstitutional as impairing the obligation of any such contract.
    STATEMENT OE THE CASE.
    On the 3d day of March, 1859, Congress passed an act entitled “An act to provide for the care and preservation of the works constructed by the United States for bringing the Potomac water into the cities of Washington and Georgetown for the use and benefit of the inhabitants of the said cities.” In and by the first section of said act it was provided that the President of the United States should designate an officer of the United States corps of engineers, to be appointed by him, who should act under the direction of the Secretary of the Interior, have the immediate care, management, and superintendence of all the works and property appertaining to the said water-works, and make report annually, in the month of November, to said Secretary. “And the said engineer shall have full power and control over the said water-works, and shall regulate the manner in which the said corporations of Washington and Georgetown may tap the pipes for the supply thereof, and shall stop the same whenever it is found no more than adequate to meet the wants of the general government; the said engineer’s decisions on all questions connected therewith to be subject only to appeal to the Secretary of the Interior.”
    The second section of said act, among other things, gives to the corporations of Washington and Georgetown full power and authority to supply the inhabitants within their respective limits with Potomac water from the aqueduct mains or pipes, and to make all law's and regulations for the proper distribution of the same, subject to the restrictions prescribed by this act; provided that no expense shall devolve on the United States in consequence of such distribution.
    The third section empowers the said corporations respectively to regulate the use of the w'ater, and to fix rates of charges therefor, and to fix and enforce the collection of such rates or rents; “provided that the rates levied by the said cities shall never be a source of revenue other than as a means of keeping up in said cities a supply of ivaier.”
    
    The fourth section authorizes the said corporations respectively, in such portions as they may see fit to carry out the provisions of said act, to borrow a sum of money not exceeding the sum of one hundred and fifty thousand dollars for the city of Washington, and fifty thousand for the city of Georgetowm, redeemable within a period of ten years out of any revenue to be derived from water rents.
    
      The sixth section provides that the expense of laying the mains to supply the said cities with water shall be paid by said cities, and the engineer aforesaid is prohibited from making any contracts unless approved by the corporation. Various provisions are made for the safety and protection of the works.
    The President of the United States, in part execution of the said act of Congress, designated Captain M. C. Meigs, of the engineer corps of the United States, and appointed him superintendent of the said water-works; and on the 1st August, 1859, the same was duly transferred to First Lieutenant James St. C. Morton, of said corps of engineers.
    The system adopted by the corporation of Washington to-avail itself of the use of the Potomac water, under the act; of March 3, 1859, consisted of laying mains for supplying, the city by means of funds derived from water rates or rents collected from all those who take the water, in addition, to what maybe required to defray the current expenses-connected with the distribution thereof. The plan adopted;by the corporation of Georgetown was to defray the expense of. laying the mains by a direct tax on the owners- .of,>'th.e.lots - upon the streets where such pipes or mains were laifli The ordinance adopted by the common council of Georgetown for this purpose authorized the water board to-issue stock'.of the corporation to an amount not exceeding; $50,000 to pay the expenses attending the introduction and: maintenance of. the water establishment, and levying a water tax of sixty cents per foot on each side of every street, lane, or alley through which the water mains pass, to be- collected fifteen cents each year for four years. Captain, M. C.. Meigs was at that time the United States engineer of the- Potomac waterworks, and he was appointed by this ordinance, with the water board, to plan the distribution of the water supply through that city. On February 9, 1860, he reported in writing to the water board the completion of the work, and, among other things, used the following language:
    “ The total cost of the work [i. e., the layiug of the mains for distribution in said city] being defrayed by a tax of sixty cents per front foot on the lots past which the water is carried, payable in four equal annual installments, if the law is faithfully executed by the councils and the citizens, they will, at the expiration of the four years, have water free forever.”
    
    The complainant is the owner of property on a street through which the water was carried, and upon which the whole of the tax aforesaid has been paid; and he has ever since claimed to be entitled to the free use of the said Potomac water without charge, save only the expense of connecting his property with the distributing main adjacent to his lot; and he insists that he is exempt from any burden, rent, or charge whatever for the use of said water. The expenses of the water supply were paid out of the general, fund, so that the consumers of water in Georgetown were free of .all water rents or rates by the payment thereof being provided for out of the general taxes. In Washington water rates have been provided for since the introduction of the water, by which means the expenses incurred by the use of the water have been paid.
    , In 1871 the corporation of Georgetown was abolished, and the collection of the taxes for the general fund have ceased, and no provision has since been made (except the act of Congress presently to be mentioned) for the payment of the expenses of the -water supply of that city.
    On the 12th of July,,1876, Congress, in view- of these cir- • cumstances, passed an act entitled “An act for the support of .the government of the District of Columbia,” &c., and by .the eighteenth section it is enacted as follows:
    “That all laws and ordinances now in force in the city of Washington relating to the payment and collection of water taxes, water rents, aud taxation for water mains be, and they are hereby, extended to and made operative over all parts of the District of Columbia where water taken from the United States aqueduct is used, and the said taxes and rents shall be payable and collectible therein in the same manner and at the same rate as in the city of Washington for the year beginning January 1,1876, and for each subsequent year.”
    The Commissioners, in accordance with this act of Congress, proceeded to make out and render bills to the users of water in Georgetown, and among others to the defendant Welch, who refused to pay the tax assessed against him, and filed the bill in this cause to obtain a perpetual injunction against the enforcement and collection of said tax. Whether such an injunction should issue is the question submitted to this court.
    The cause is certified to the general term in the first instance.
    
      Joseph H. Bradley, for complainant.
    First. There was' a contract.
    The second, third, and fourth sections of the act of 3d March 1859, (11 Stats., 485,) create a contract between the United States aud the corporation of Georgetown when accepted by it.
    They authorize the use and supply of the water for the inhabitants of that city; to regulate that use, and fix the charges therefor, and to enforce their collection; and em- ■ power the corporation to borrow money to execute this grant, redeemable in ten years, out of the water rents.
    The corporation accepted the grant, but by the act or ordinance of 9th May, 1859, they adopted a plan which, it was • feared, was not in strict accordance with the grants thus made; borrowed money to carry out this plan, and, instead of waiting to have that money repaid by “water rents,” resolved to levy the cost at once by a specific tax on the property in front of which the water mains passed; and they submitted this plan to Congress, and Congress, by its act of 12th May, 1862, (12 Stats., 406,) approved of that plan, and it was fully carried into effect, partly by the taxes paid by ■ complainant.
    The whole amount thus borrowed was repaid out of those special taxes, and thus the corporation, for the benefit of each and every of the citizens who paid this tax, and for the purposes of the corporation, became the owner of the mains, free of any obligation to pay anything more on account of their cost.
    Such is the effect of the grant, and such the terms of the contract between the government and the corporation and its citizens. (See acts of Congress 21st May, 1862; 17th June, 1864, 12th vol., 405; Revised Code, p. 24, sees. 209, 210, 211, 212, 213.)
    Second. The city of Washington, on the other hand, adopted an entirely different plan. By that plan, it will be seen, there was no tax levied on the several lots in said city in front of which the maius were to be laid, so as to pay off the cost of laying said mains. That city borrowed money to defray the cost of laying the mains, from time to time as needed, to be reimbursed out of the proceeds of the -water rents, as contemplated in the original act of Congress. These water rents are not assessed on the property — the real property — of the owners fronting on the several streets through which the mains are carried, but upon the parties using the water drawn from the said mains.
    It is, therefore, apparent that if the citizens of Georgetown are taxed in the same manner, those who have paid in full for the laying of such mains in Georgetown will be subjected to a double tax: first, the interest on the money they have paid respectively for laying the mains, and second, for the use of the water for which they have already paid.
    
    Third. The act of Congress of 12th July, 1876, entitled “An act for the support of the government of the District of Columbia for the fiscal year ending June 30, 1877, and for other purposes,” by the eighteenth section thereof provides, in substance, that the distribution of water in Georgetown shall be subject to the same tax as is imposed on the inhabitants of the city of Washington. It is, therefore, not uniform, and is unjust and illegal, and is, as we have shown, in direct violation of a contract of the Government of the United States.
    
      
      A. G. Riddle and Francis Miller, for defendants.
    It is claimed in the bill that in some way the citizens of Georgetown have secured to themselves the advantages of a contract by the terms of which they are to be forever exempt from any expense in connection with the use of the water of the Potomac aqueduct, and that this contract is of so high and sacred a character that the Congress of the United States cannot in any way impair or interfere with it. So extraordinary a claim, under the circumstances of this case, certainly ought to be based upon the clearest and most satisfactory proof of the execution, existence, and terms of such contract. But we are left in entire ignorance of all these facts. We do not know who were the parties to the contract, when or where it was executed, how it was authenticated, or what were its terms. No consideration is named for so great am exemption, and no reason assigned why the citizens of Georgetown should be supplied with water at the expense either of ■the United States or of the citizens of Washington.
    Such a contract, necessarily extending through unlimited time in the future, must, of course, be in writing to be binding; but no writing is produced. If made by the United States or the corporation of Georgetown, it must have been made by. some duly authorized agent of the contracting party; but no such authority has been or can be produced, and no evidence that such agent, if any such there was, has undertaken to make such contract.
    The only pretense for such a contract that is set up seems to be an expression used by General Meigs, United States army, in a communication addressed to the water board of the city of Georgetown, under date of February 9, 1860, in which he says: “ The total cost of this work being defrayed by a tax of sixty cents per front foot on the lots past which the water is carried, payable in four annual installments, if the law is faithfully executed by the.councils and the citizens, they will, at the end of the four years, have the water free forever..” Nothing is produced to show that General Meigs had any authority to bind the United States to any such contract as that alleged in the bill, and probably no one would be more astonished than he to learn that out of this casual expression of his such large results wére supposed to follow. In point of fact, General Meigs was not, at the date named, in charge of the Potomac aqueduct, having been succeeded therein on August 1, 1859, by Lieutenant James St. C. Morton. It appears from the statement of the water board that he (General Meigs) was then acting for them and at their request.
    This claim of exemption is made in the face of the fact that the act of March 3, 1859, declares that the corporation “shall by ordinance establish a scale of annual rates for the supply and use of water apportioned to the different classes of buildings, &c., * * and modify, alter, amend, increase, or reduce such scale from time to time; * * to collect such rents when so fixed * * from the owners or occupants of all such buildings as may use the water; to stop the supply of water to auy such building on failure to pay said rate, charges, or rents.” In accordance with this act, an ordinance was passed April 23,1859, providing “ that any person using the water shall be subject to such water rates or tax as may hereafter be imposed by this corporation;” and this ordinance was ratified by Congress, and it has never been repealed.
    The act of 1859 also provides “ that no expense shall devolve upon the United States in consequence of the distribution of Potomac water.” It will not be contended that the water can be distributed, the aqueduct kept in order, the whole system of the water-supply of Georgetown, including the working of the high-service pump, can be maintained without expense. The act of Congress expressly declares that the United States shall not bear that expense, and this court will not hesitate long in deciding the question whether it shall be paid by the citizens of Georgetown, who experience the benefits, or by other citizens of the District, who have their own burdens to bear.
    Courts are not swift to declare an act of Congress unconstitutional, and tlie Supreme Court of the United States has not often ventured to do so; and surely a better ease than is made by this bill must be established before this court will annul an act of the national legislature.
   Cartter, Ch. «J.,

delivered the opinion of the court orally :

The prayer of the bill in this cause is, in substance, that the District Commissioners be restrained from carrying an act of Congress into effect. The particular section of the act objected to provides for water rates in Georgetown the same as those imposed upon the consumers in the city of Washington. The act of March 3, 1859, respecting the care and preservation of the Potomac water-works, contained a clause for bringing the water into both cities for the benefit of the inhabitants, and authorizing the corporations to make all. laws and regulations for the proper distribution of the water, provided that no expense should devolve upon the United States in consequence of such distribution. They were to regulate the use of the water, and fix rates and rents therefor and enforce their collection. The city of Georgetown made such distribution and issued water stock therefor, which was paid by a direct tax upon the property on the streets along which the water mains were laid. The city of Washington incurred a debt for such distribution, which was to be defrayed by funds derived from water rates, in conformity with the act of March, 1859; and it is now claimed by the complainant, a citizen of Georgetown, who has paid the tax upon his property for laying the mains in that city, that he is entitled to the use of the water free of any rate or charge to be paid for the purpose of defraying the current expenses; and he insists that he is entitled to this exemption by reason of a contract growing out of these circumstances, and that any burden imposed by act of Congress upon him for the use of the Potomac water impairs the obligation of said contract, and is unconstitutional and void. The difficulty about this extraordinary claim is, that there is no contract, and nothing that by any possibility can be tortured into such a contract. The language employed by General Meigs in his report, that the citizens would, at the expiration of four years, when the mains were paid for, “have water free forever,” gives no immunity from the common obligation to pay for the expenses of maintaining the supply of water, and is as far as possible from raising the solemn covenant of a contract in favor of any one as against the United States. General Meigs was not constituted superintendent of the works for any such purpose, and never imagined he was committing the government to the non-user of its taxing power for all time to come.

The laying of the mains was a provision for getting the water where it could be used; but the rates provided for in the act of 1876 are to meet the incidental expenses of keeping up the. supply of water, for preserving the works from waste and destruction. The government supplied the works, and tendered to both cities, without price, all the water necessary for the use of their inhabitants. The only condition imposed in this donation was, that the corporations should discharge the cost of the distribution, and the expenses incident to maintaining the means of distribution in working order. It is just and equitable that both cities should share in this expense in proportion to the use they make of these benefits and privileges.

The conclusion of the court is that the bill be dismissed.  