15 D.C. 328 | D.C. | 1885
delivered the opinion of the court.
This suit is brought for breaches of a bond given to the District of Columbia by Waggaman as principal, and Pilling and Clarke as sureties. A recital states that Waggaman had obtained from the District a license to engage in the business of real estate agent, pursuant to the act of the legislative assembly, approved August 23, 1871, and acts amendatory thereof; and the conditions are: “That if the above bounden Thomas E. Waggaman shall well and faithfully in all things comply with said act and acts amendatory thereof, and honestly and duly perform all duties required by law of him as real estate agent, and shall account and pay to the said District or the proper officer thereof, or to any other person or persons, all sums which may be due and owing by him by reason of said license and the business authorized thereby, then this obligation to be void; otherwise to be and remain in full force and virtue.”
The declaration avers that the defendant, Waggaman, being desirous of engaging in the business of real estate agent, and having obtained a license for that purpose on December 6, 1882, executed the above bond, with Pilling and Clarke his sureties; that Waggaman engaged in said business but did not comply with the acts of the legislative assembly referred to therein and did notjperform the duties required by law of him in this: that he did not, on or before January 10,1883, or since said time, under oath or affirmation, make a due return to the assessor of the District of Columbia of the receipts and commissions received by him as real estate agent for the six months ending January 10,1883, or any part of said time, whereby the plaintiff was
The defendants, Pilling and Clarke, pleaded that the alleged deed is not their deed.
In order to show the nature of the defence, it is necessary to state some of the provisions of the acts of the legislative assembly referred to.
The act of August 23, 1871, is entitled “An act imposing a license on trades, business and professions practiced or carried on in the District of Columbia.” The 1st section provides that no person shall be engaged in any trade, business or profession mentioned in the act until he shall have obtained a license therefor, as afterwards provided; and the 2d section provides the steps to be taken for obtaining the license. The previous giving of a bond is-not one of these. Then section 15 provides that “Every real estate agent shall give bond to the secretary of the District of Columbia in the sum of $5,000, with two good and sufficient sureties, to be approved by the Governor, for the honest and due performance of all duties required by law; ” and further provides that “Every real estate agent failing to comply with the provisions of this section, shall, on conviction, fQrfeit his license and be fined not less than $100.” It appears, then, from sections 2 and 15, that the license is not to be withheld until the bond shall have been given, but is to be issued upon the performance of other conditions, and is only liable to revocation if the bond is not given. The reason for referring to this point will appear when we come to consider the grounds of the defence in this case.
Section 21, clause 38, as amended by the act of June 20,
The case was tried in the circuit court upon the following stipulation, by which some of the facts relied on by the’ defence are presented:
“1. A trial by jury is hereby waived.
“2. The bond in suit, and produced by the plaintiff, was signed and sealed by the defendants.
“ 3. That during the last half of the year 1882, the deiendant Waggaman was a real estate agent in the District of Columbia, and obtained his license to do business as such within a few days after the date of said bond; but before said defendant could obtain such license, he was required to execute said bond in the' form in which it is, and have the same approved by the Commissioners of the District; and unless said bond had been executed and approved, said defendant could not have obtained his said license to carry on in said District the business of a real estate agent.
“4. That said Waggaman’s gross receipts from commissions in his said business, during said six months, was the sum of $11,060.44, of which he made no return.
“6. That all acts of the legislative assembly, as published, and all acts of Congress having, in the opinion of either party, any bearing upon the subject, may be read at the hearing.”
The circuit court entered judgment in favor of the plaintiff for $110.60 and costs; whereupon the defendants appealed.
The matters ’stated in the fifth clause of the stipulation were intended to support the third plea of the defendant Waggaman, viz., that the act of the legislative assembly and
It was not upon this proposition, however, that the defendants seriously relied at the argument. Their principal grounds were that, notwithstanding the broad terms of the organic act which established the District government and the legislative assembly, the latter could not be clothed with legislative powers, and therefore had only municipal powers; that, according to the rule by which such powers are measured, its acts must be reasonable, and that a tax on vocations was unreasonable, and in this case was connected with and dependent upon another provision authorizing an invasion of rights by a scrutiny of private and lawful transactions which was beyond the powers of a municipality. Next, as to the particular bond in question, it was insisted that, because it contained conditions not authorized by the act and was extorted colore officii, it is void.
We have to consider first, then,' the validity of the act of the legislative assembly which imposed this tax on commissions earned by real estate agents, and required a semiannual return of those commissions and a bond to secure the performance of these and other acts prescribed by law.
In Roach vs. Van Riswick, 7 Wash. L. Rep., 496, this court held that the very broad terms in which the organic act of 1810 granted legislative powers to the legislative assembly had the effect to clothe that body with only such powers as might be given to a municipal corporation, and that it was not competent for Congress to delegate the larger powers of general legislation which it had itself received from the Constitution. We are still satisfied with that decision; but we hold, on the other hand, that the pro
These restrictions of the power to impose taxes amount, according to the principle of construction applied by the Supreme Court in the Legal Tender Cases, 12 Wall., 534, to a declaration that the same act had already conferred the general power’. Mr. Justice Strong, speaking of the restriction of the power to suspend the writ of habeas corpus, says: “It shows irresistibly that somewhere in the Constitution power to suspend the writ was granted.” In the case before us the restriction has a direct application. It refers to the general grant of legislative power contained in section 49; and this construction, being part of the same act, is binding on the courts. It instructs us that the general grant of power to legislate on all rightful subjects, etc., is by inclusion, an express grant of power to legislate on the subject of taxation, except as limited in section 57; and this express power to legislate on this subject includes, of course, the power to legislate on the means of ascertaining the extent of the object taxed; in other words, to require returns and to test their accuracy by inspections. We repeat that these are not implied powers, powers existing only by implication; but powers included in the descriptive terms of the express grant, and therefore to be treated as expressly granted powers. The importance of this distinction will presently appear. Kecurring then to the doctrine that the general grant had the effect to bestow
But it was insisted that, in order to be valid, the exercise of this power must be “reasonable,” and that the provisions, requiring returns of commissions earned and imposing a tax thereon, are not reasonable. This test of the validity of a municipal act or by-law cannot be applied when the power to legislate on the subject has been expressly conferred. In that case we have only to construe the grant, and when the grant imports that the full power is given and that the measure and manner of its exercise are intrusted to the grantee, we have no more to do with the reasonableness of its exercise than with the reasonableness of an act of Congress. The judicial control here invoked belonged to a different class of cases. In England the subjects upon which by-laws might be made were not usually specified in the king’s charter, and it'became an established doctrine of the courts that every corporation had implied or incidental power to pass by-laws; but this power was accompanied with the limitation that every by-law must be reasonable. And in this country the courts, in affirming the general incidental power of municipal corporations to make ordinances, have always declared that ordinances passed in virtue of the implied power must be reasonable. Dill. Mun. Corp., sec. 253, and cases cited.
In other words, the courts have held that where the existence of a power depended on judicial implication, they were not at liberty to imply power to do what was unreasonable. Plainly this rule does not apply in construing the extent of an express grant of power, and we are dealing only with an express grant. When we find as a matter of construction, that Congress has granted this power, we must refrain from considering whether that grant or the authorized exercise of it was reasonable. We can only consider
The next objection to a recovery on this bond was, that it contains a condition not authorized by the statute; that this unauthorized condition was extorted from the defendant Waggaman, colore officii, and that a bond which is not required by law is not obligatory .unless it is found to be a voluntary control on the part of both parties.
We have no doubt that so much of the condition of the bond as required the defendant to account and pay to any other person than the District “all sums which may be due and owing by him by reason of said license and the business authorized thereby,” was unauthorized by the statute. The requirement that bond should be given “for the honest and due performance of all duties required by law ” refers only to the duties named in the statute, such as the making of semi-annual returns of his commissions and the payment of tax thereon, and does not refer, as the condition of the bond actually taken does, to the payment of all sums due,
The judgment is affirmed.