District of Columbia v. Metropolitan Railroad

delivered the opinion of the Court:

1. By concession of counsel for the District of Columbia in open court in the hearing before us, it now appears that the claim of the District to the items in schedule D, for work in Georgetown amounting to $15,292.63, is without foundation; and that this sum in any event must be deducted •• from the demand of the District, which is thus reduced to the sum of $132,214.42. The work done on the streets of Georgetown specified, in this schedule had been done before, the railroad company had begun to occupy these streets in any manner; and when it did occupy them, it repaired the streets at its own expense, and continued to keep them thereafter in good order and .condition. The claim of the District in this instance'was wholly erroneous and is so shown by the record; and the attorney for the District could ■ scarcely do otherwise than abandon these items.

2. On the other hand, the item of $1,914.52, in schedule.. Ba, for work done on Boundary street, is scarcely open to *344discussion. That work was done in the summer of 1875, after the railroad company bad fully occupied the street and was running its 'cars thereon ; and the material used for paving, which was Belgian block, was well suited for the purposes of the company, and a durable pavement. And this sum of $1,914.52 must, therefore, be adjudged in favor of the District of Columbia in any event.

3. With reference to the items contained in schedules B and C, both of which stand upon the same basis, it appears that while the railroad company under its charter had the right of constructing its branch lines of road upon the streets therein mentioned, it had not in any manner exercised that right when the Board of Public Works entered upon those streets and undertook to lay the pavements with part of the cost of which it is now sought to charge the railroad company. The company had still about two years in one case and nearly three years in the other within which to construct these lines ; and it ^alleged, and it may be assumed to have been the fact, that its resources at the time were unequal to the expenditure that would be entailed by the work of construction. In this condition of things the president of the railroad company addressed, on October 26, 1871, the following communication to the Board of Public Works :

“ Washington, October 26, 1871.

“ To the Hon. Board of Public Works of the District of Columbia.

“ Gentlemen : Your board having recently ordered the paving of certain streets through which Congress had given this company permission to lay rails whereon to run street cars, we would respectfully ask the privilege to lay down the sleepers and crossties as the paving progresses, thereby preserving the streets and avenues from being cut up at a future day in the execution of this work. It is the intention of this company to extend the Metropolitan Railroad westward from its present terminus to Georgetown and eastward to Uniontown, and also to lay tracks on Ninth street *345to Pennsylvania avenne, to the Boundary, and on 4^ street from the city, hall to the arsenal gate as soon as the property holders along these lines subscribe to additional stock, which, it is hoped, will be done shortly. The company are willing, with the permission of the board, to go on at once and lay the timbers for these lines, fully preparing them for the rails to be put in at some future time. To keep a well-laid pavement in good order it is desirable to avoid all excavation, particularly in the center of the street. This consideration doubtless influenced your board in its wise precaution of ordering all water, gas, and service pipes to be laid prior to the paving. ■ The, necessity is more apparent, where railroad privileges have been granted, to have the timbers laid as the paving progresses, which will not only be a benefit to the city, but add to the comfort of those residing upon or passing over the street. We are willing to anticipate the putting down of the sleepers and crossties of our contemplated extensions, provided the paving be done by your own contractor without charge • against us-, and should be pleased if the suggestion herein submitted should meet the favor of your board.

“ Very respectfully, your obedient servant,

“ J. W. Thompson, President

The answer of the Board of Public Works to this communication would seem to have been the passage by it on the same day (October 26, 1871,) of the following resolution :

“ Resolved, That when this board shall have authorized the paving of a roadway of any street or avenue along which any horse railroad company is empowered to lay railroad tracks, such company shall have the privilege of laying, at its own expense, the sleepers, crossties, and other woodwork of such tracks in advance of paving, so as to prepare the track for the rails and thus prevent the necessity of disturbing the pavement for this purpose at a future time; said work to be done under the direction of the board.”

*346In pursuance of this resolution, and of the understanding created thereby, the railroad company at its own expense laid the'sleepers and crossties on Ninth street and East. Capitol street, while the pavements were being laid by the Board of Public Works ; but it did not lay its rails or begin the running of its cars until some time after the laying of the pavements had been completed. How long this was does not appear from the record before us.

Substantially the same conditions prevailed and the same action was taken with regard to Seventeenth street, between H and I streets, and Connecticut avenue, which are the subject of schedule C.

The liability, therefore, of the railroad company to the District of Columbia, in regard to the items contained in these two schedules B and C, depends upon the determination of the question, whether by laying down its sleepers and crossties under this resolution adopted by the Board of Public Works, the railroad company immediately thereupon so occupied the streets and avenues upon which it had been authorized to construct its road, as to become liable to the District of Columbia for the cost of paving then done by the board on the portion of the streets and avenues thereafter used by the railroad company. This question we musL answer in the negative.

Evidently it was not the understanding or intention of the Board of Public Works at that time to order the paving of any portion of these streets or avenues to be done by the railroad company. Nor was it the intention to charge the railroad company with any portion of the cost; for no charge. therefor was ever made by the board against the company. And so far as the understanding of all the parties at the time can avail in the consideration of the question, it is beyond all doubt that the railroad company was not supposed to have incurred, by the action which it took, any liability whatever on account of the paving.

The arrangement suggested by the letter of the. president of the railroad company, to which evidently the resolution *347adopted by the Board of Public Works was intended as a reply — although the resolution properly provided that the arrangement should be general and should apply to all proposed railroads, and not alone to the defendant in this case —was an arrangement certainly beneficial to the public as well as' to all the parties in interest. If it were a cunningly devised scheme to enable the railroad company to evade the duties and liabilities imposed upon it by its charter, a different case might be presented here. But there is no pretence of bad faith on the part of the railroad company or of any one else in this connection. The street railroad business was in its infancy at the time. Its success was not assured. The defendant, it is conceded, was without present resources to construct the proposed branch lines. It did not propose to construct them at that time; and it had by law' the right to postpone their construction for a further period. It had the unquestionable right, if it had chosen to exercise it, to remain silent, to let the Board of Public Works proceed with its work of paving, to wait until that work was done, and then to enter upon the streets, construct its road and gain the benefit of the paving that had been done by the board without any liability to pay for it. Even if it could be conclusively shown that the railroad company had so postponed all action by it under its charter, for the express purpose, secret or avowed, of availing itself of the intermediate labors of the public authorities, it is not apparent how, under the law, it could be held liable for the cost of those labors. Its charter does not require it to pay for any pavements already laid upon any of the streets upon which it is authorized to enter. That charter merely requires it to keep the spaces occupied by it in those streets well paved and in good order; and that requirement would involve the necessity of laying a new' pavement, if none were already there ; but it certainly does not involve liability to pay for a pavement already in existence. Had Congress intended to impose such liability upon the company it could easily have said so; and it might have been proper to do *348so. But neither in the charter nor anywhere else has it said anything that could by any possibility be construed to involve such a liability, and we do not understánd that any such liability is claimed by.anyone in behalf of the plaintiff in this case.

The claim is that the laying of the sleepers and crossties by the railroad company in advance of the work of paving by’the Board of Public Works or simultaneously with it, was such an appropriation of the streets by the railroad company to its own use as to constitute, in contemplation of law, a construction of its railroad upon the streets in question, so as thereby to render it liable under the statute, for the cost of the pavement. But this we must regard as an unreasonable application of the statute.' The reason of the law demands no such construction; and we do not think that the language of the law justifies it.

.The laying of sleepers and crossties in a street, whereon afterwards to construct a railroad, does not of itself appreciably diminish the use of the street by the public ; nor does it appreciably increase the wear and tear of the roadway. • The crossties are usually buried out of sight, and form merely a substratum that would not affect the ordinary uses of the street in any way; and the sleepers are usually laid even ■ with the surface of the street, and do not of themselves impede travel or interfere with the use of the street by the general public. It is the use of the street by the railroad company with its horses and carriages and its superior right of way for its horses and carriages along its line of tracks-that restricts the public use and subjects the street to the wear and tear that justifies the requirement in the charter which provides that the company should bear the expense of keeping well pavpd and in good repair the portion of the street so devoted to its franchises. And while it is true that, for some purposes, the act of occupation should be construed to begin with the first beginning of the w,ork of construction, and from the very first moment at which the railroad .company enters upon the street, yet a--partial and *349disconnected act, not understood or intended by anyone to be an act of definite and permanent appropriation, should not be given that effect when there is no public purpose to be subserved by it, and when the express intention.of all the parties was to the contrary. When it is remembered that by simply waiting until the work was done, the railroad company could have had the benefit of that work', and at the same time could have escaped liability for its cost, ft is difficult to see why, in the absence of any express provision of law to that effect, there could have been illegality in an arrangement of which the purpose and the' necessary result was to save expense, inconvenience and annoyance to the public. And assuredly it is no objection to the arrangement in this. regard that it ultimately also saved expense to the railroad company.

The Board of Public Works, as is clear from the statute; and as has frequently been held, had entire charge and control of the matter of paving the streets and avenues of the - city of Washington. For the purpose of paving it could and did use wood and other materials. And if wooden beams were fit for a portion of the street, and some one was willing to put down such beams without' expense to the public, it is difficult in reason to see why the public or the District of Columbia might not lawfully accept the gift. It was not proposed at the time to make any other use of these beams. For the time they were wholly and exclusively for the benefit of the public. And it does not alter the case at all that afterwards iron rails could and would be attached to them, and that thereupon,the whole structure would be subjected to a special use, different from the public use. It is plain that, under the circumstances, it is this attachment of iron rails and the special use thereafter made of the structure that constitutes, for present purposes, the appropriation of the street by the railroad company.

That this was the intention also of Congress is quite- apparent from the language of the statute itself. For the requirement of the statute is that the railroad company should *350“ keep said tracks and for the space of two feet beyond the outer rail thereof, and also the space between the tracks, at all times well paved and in good order.” Until there are tracks and an outer rail, it is not apparent how there can be anything to be kept well paved and in good order. The duty of paving or of keeping the specified spaces well paved and in good order evidently does not arise until the rails are laid and the structure becomes a railroad track. As we have said, if Congress had intended that railroad companies receiving the privilege of constructing and operating their lines of railroad in the city of Washington should not exercise that privilege without paying for the cost of pavements which thereby became devoted to their use, it could easily have said so ; and there would certainly be no great injustice in the requirement. But it has not thought proper to say so, and the courts cannot add a liability which the larv does not impose.

We desire to repeat that we do not mean to say that there may not be liability on the part of the railroad company from the first moment that it enters upon a street in any manner. If it put down only one sleeper or one cross-tie, or only displaced one shovelful of earth, and damage resulted to some one from negligence connected wfith the act, the company would undoubtedly be liable to the person so injured. And so of other cases that may readily be conceived. What w'e hold here is that, under the acts of Congress which constitute the charter of this defendant railroad company, the duty of paving or of keeping the spaces allotted to it w'ell paved and in good condition, does not arise until there are rails laid and a track constructed— not necessarily all the rails laid or the entire track constructed, but some appreciable space of rail and track in respect of which the duty may arise.

The decisions cited in this connection by counsel on behalf of the District of Columbia w'e cannot regard as in any manner contravening this position. The case of Railway Co. v. Alling, 99 U. S. 475, is cited to show that, when *351a railroad has been definitely located, the title to lands granted to it, previously imperfect, thereupon becomes definite and specific. The case of State v. Winona, 21 Minn. 472, and State v. Southern Minn. Railway Co., 21 Minn. 344, are referred to for the purpose of showing that, with a view to the taxation of property, a contract to convey is to be regarded as the equivalent of a conveyance. And Brooks v. Railway Co., 101 U. S. 443, and Meyer v. Hornby, 101 U. S. 728, are cited to show that a railroad, although constructed in sections, is practically one structure for the purpose of the enforcement of a mechanic’s lien claim for work done on one of the sections. And no doubt numerous other cases of a similar character might be cited. But we fail to see their application to the question before us. The gist of all these cases is that, when one has the beneficial use of property, he should be liable for its burdens — a most just and equitable doctrine. But this does not tend to show that one should become liable for such burdens before he becomes entitled to the beneficial use of the property.

Sleepers and crossties do not constitute a railroad. Indeed, we might conceive a railroad without them. It is the imposition of rails upon the substructure that constitutes the definite character of a roadway as a railroad. And it is only when a railroad company has the definite use of a railroad that it becomes its duty to keep that roadway paved. It may have antecedent duties, but those duties are of a different character.

We concur with the special commissioner in holding that, in respect of the items charged in schedules B and C of his report, the plaintiff is not entitled to recover anything from the defendant.

4. With regard to the plaintiff’s claim as set forth in schedule A of the report of the special commissioner, another and a very different question is presented.

That schedule comprises the work done on the streets and avenues of the city of Washington whereon the main *352line of the defendant’s road had been constructed and on which the road had been in actual operation for several years before the Board of Public Works commenced its plan of improvement. On these 'streets and avenues, on some or all of which there had been no previous pavement of any kind, the railroad company had paved its entire track and all the spaces prescribed for it by the statute in á good and substantial manner, with a pavement of cobblestones well suited to its purposes and entirely satisfactory to the authorities of the city of Washington and of the "District of Columbia. The Board of Public Works resolved and undertook to pave all these streets with concrete or wood, one space only with Belgian block. Entirely ignoring the railroad company and the existence of the railroad tracks, it entered into contracts for paving the whole roadway from curb to curb, and made no allowance even for the spaces actually occupied ■ by the rails, although in the aggregate these spaces amounted to a very considerable sum. And it may be noted here, that, in the demand made in 1880 by the District of Columbia upon the railroad company and in the declaration filed in this suit, the charge made against the railroad company included the supposed cost of work which was never done and could not have been done, the paving of the spaces occupied by the rails of the company’s railroad, amounting in the aggregate to the sum of $9,785.89. But, as already stated, this is now conceded and allowed to be a proper deduction from the amount of the claim.

Against the protest of the railroad company, the Board of Public Works, by its contractors, proceeded to remove the cobble-stone pavement laid by the railroad company; appropriated the cobble-stones to the use of the District, without, in the first instance, giving any credit for the value thereof to the railroad company, although the credit is now conceded, amounting to $5,330.01 ; and laid what proved to be a worthless pavement of -wood and concrete, which soon rotted or crumbled and became dangerous to the *353horses, and which in a short time the railroad company found itself compelled to remove, which it did with the acquiescence of the authorities of the District of Columbia, replacing it at its own expense with a new cobble-stone pavement. It is this worthless pavement, so laid, for which compensation is here sought by the District of Columbia from the railroad company.

Upon this statement of facts, which are undisputed and beyond. dispute, if this were a controversy between two private corporations, or between two private individuals, or between a private corporation and a private individual, and the controversy were to be determined on principles of equity and justice, there could scarcely be much hesitation as to what the decision should be.. But there are other and most potential considerations in this case that cannot be ignored.

We are dealing in a measure with' the sovereign power of the State. The District of Columbia, it. is true, is only a corporation ; it is not the State ; and the Board of Public Works was only a subordinate, although very powerful, agency within the corporate administration. And the District of Columbia, as determined in this very case by the Supreme Court of the United States, is not entitled even to immunity from the bar of the statute of limitations. But it is nevertheless a municipal corporation, armed with one of the most formidable powers and attributes of sovereignty, the power of taxation, and charged by the sovereign power as its representative with the control and proper maintenance of the public highways. Over these public highways its control from the State is supreme; and all other agencies are subordinate to it. When Congress permitted and authorized the defendant railroad company, a purely private corporation, although subserving a public purpose and to be regarded perhaps as performing a public function, to appropriate to itself to a limited extent a portion of the public highway, and in consideration of that privilege required it to keep such portion of the highway well paved and in *354good repair, it did not mean to relieve the city of Washing-ton or the District of Columbia, as a municipal corporation, from the"performance of the-superior duty in the same respect imposed by law upon the municipality. There was undoubtedly a duty imposed by the sovereign upon the railroad company ; there was a superior duty imposed upon the municipality and a superior power granted to it. The municipality is the immediate representative of the sovereignty ; the railroad company is no more than an inhabitant of the municipality, subject, like all other inhabitants, to the municipal ordinances, and by the special provision of the law in this case, subject as to all the use and maintenance of its road to'all the municipal regulations.

The city of Washington had been authorized and required “ to open and keep in repair the streets and avenues ” of the city (Act of May 15, 1820, 3 Stat. 583). Under the so-called territorial organization, the Legislative Assembly of the District of Columbia, which was no more than the municipal council of the District, was given “ the care and charge of and the exclusive jurisdiction over all the public roads” of the District (Act of Feb. 21, 1871, 16 Stat. 420). And by the same act it was given to the Board of Public Works “ to have entire control of and make all regulations which they shall deem necessary for keeping in repair the streets, avenues, alleys and sewers of the city.”

In view of this legislation it can scarcely be supposed that, when Congress in its grant to the railroad company required that organization to keep the portion of the street occupied by it well paved and in good repair, it intended thereby to withdraw such portion of the street from the control and jurisdiction of the municipality, and commit that control exclusively to the railroad company. Beyond all question, the intention of Congress was to require the railroad company to perform the duty imposed upon it under the superintendence and subject to the control of the municipality. No one supposes that, if the railroad company foiled to perform its duty and permitted the spaces *355occupied by the tracks to be in bad repair, and injury accrued therefrom to any one, the municipality would be relieved from liability.

It is scarcely, if at all, controverted on behalf of the defendant that the railroad company is subject to municipal regulation in this matter of paving as well as in all other matters that are proper subjects of municipal ordinance. We regard it as clear under the law, that, if the railroad company has failed to perform its duty properly, has improperly or defectively laid down its pavement, or has permitted that pavement to be out of repair, it is the duty of the municipality, under its paramount grant of power, to compel the performance, of the duty, and to require the pavement to be kept in good order and condition. And if the municipality may by regulation require and compel the railroad company to perform its duty in that regard, it certainty may, under the broad power of “entire control.' given to it, perform that duty itself, if the railroad company fails to do it, and charge the cost to the railroad company. This we understand, indeed, not to be denied by counsel for the defendant. The contention, as we understand it, is not that the municipality may not regulate the operations of the defendant, but that it may not change its duty ; and the argument then is, or would seem to be, that by requiring the defendant to change the pavement of its tracks so as to conform in character to the pavement of the remainder of the street, the municipality changes the duty of the railroad company and imposes a duty upon it different from that imposed by Congress. '

We are not convinced by this argument. A change of pavement is not a change of duty. It is common experience that, in the progress of civilization and refinement, municipal methods that were once satisfactory become wholly insufficient. The old style of cobble-stone pavement, which was once universal and a remarkable improvement over earth and mud, would now be regarded, at least in Washington, as intolerable. Municipalities should keep *356pace with the civilization of the age and the progressive wants of their communities. It is no reason, because one class of pavement was once deemed entirely satisfactory, that it should not be replaced from time to time with others shown or supposed to have superior advantages. It is well-settled law that a municipality, having general control over its streets and avenues, may alter their grades at will, may replace one pavement with another as often as it deems expedient, and may impose successive impositions of taxes therefor. Smith v. Corp. of Washington, 20 How. 135; Gossler v. Georgetown, 6 Wheat. 593; Dillon on Mun. Corp., secs. 685, 686 and notes. Indeed, this right to alter the grades of the streets and to provide for successive repave-ments thereof is distinctly recognized and authorized by Congress in the act chartering the Metropolitan Railroad Company as proper to be exercised by the corporate authorities of the District of Columbia; for section 5 of that act, already cited, provides in express terms “ that nothing in this act shall prevent the Government at any timé at their option from altering, the grade or otherwise improving all avenues and streets occupied by said roads, or the city of Washington from so altering or improving such streets and avenues, and the sewerage thereof, as may be under their respective authority and control; and in such event.it shall be the duty of said company to change their said railroad so as to conform to such gradé and pavement.”

It is for the municipality then to determine what grades it will establish for the streets, what pavements it will lay, and what changes, if any, it will make from time to time in those grades and pavements ; and it is specifically made the duty of the railroad company to conform thereto. The power of the municipality does not extend merely to the portion of the highway not occupied by the railroad; for entire control over the whole area of the highway is given to it; and the conformity required from the railroad' company is necessarily conformity, to the and direction of order the municipality, subject of course to an appeal by the railroad com*357pany to Congress for a limitation of what might prove to be municipal oppression, or to the courts for abuse of municipal discretion. In section 5 above cited conformity is-required from the railroad company, not only to any new grade which the municipality might establish, but likewise to any new pavement which the municipality might direct as proper for the street. The word pavement is there introduced for the first time in the act; but it is clear that it was included in the term improving previously used ; and there is no possibility of mistaking the intention and meaning of Congress in the matter. It cannot be that Congress proposed that, when the railroad company once put down a cobble-stone pavement, entirely satisfactory though it was at the time to every one, the status of the company in respect of that pavement was thereafter beyond municipal control, and no development of improved methods could operate to require the substitution therefor of any other- pavement. It was well said by the Supreme Court of Pennsylvania in the case of Philadelphia v. Ridge Ave. Railroad Co., 143 Pa. 444, 471, with reference to a similar condition of things occurring- in the city of Philadelphia:

“The duties specified in the‘(company’s) charter were imposed with reference to the changes and. improved methods of street paving which experience might sanction as superior to and more economical than old methods. In other words, the company is bound to keep pace with the progress of the age in which it continues to exercise its corporate functions. The city authorities have just as much right to require it to repave at its own expense with a new,. better, and more expensive kind of pavement as they have to cause other streets to be repaved in like manner at the public expense.”

It may be, that, under a duty merely to repair, or to keep in good order, no obligation would exist to repave with a new and different material. Chicago v. Sheldon, 9 Wall. 50; Baltimore v. Scharf, 54 Md. 499, 525; State v. Corrigan Con. St. Railway Co., 85 Mo. 263; although there are de*358cisions to the contrary (Philadelphia v. City Pass. Railway Co., 169 Pa. St. 269; State v. Jacksonville St. Railway Co., 5 Am. & Eng. Railway Cases, 179); but no such limitation or construction can apply where absolute conformity to altered pavements is peremptorily required superimposed upon a duty to keep the spaces well paved.

We are constrained to conclude that it was within the statutory power and right of the Board of Public Works in this instance to require the defendant railroad company to substitute on the prescribed spaces, instead of the cobblestone pavement then in existence, the new pavement directed to be laid on the remainder of the highway; and upon the failure of the company so to do, after due notice to it, to put down the pavement itself by its own contractors and to charge the cost to the railroad company. See W. & G. Railroad Co. v. District of Columbia, 108 U. S. 522.

It would appear that, in fact, no notice was given to the railroad company and no opportunity afforded it to do the .work itself. But the element of notice is eliminated from our consideration in this case by the act of Congress and the consent of the railroad company to the provisions of that act, which requires us to assume “ that due and proper notice has been given to said company of all acts required in the premises.” As, therefore, it is to be assumed that notice was given to the company to do this work, and as it confessedly did not do the work, the right of the Board qf Public Works to do it at the cost of the company necessarily follows — provided that it was a work which could properly have been required from the company; and this we have determined.

Undoubtedly and beyond all question, the railroad company was right and the Board of Public Works was wrong in its judgment in regard to the relative merits and suitableness of the two pavements. But this was not the only error committed by the Board of Public Works in its brief, though phenomenal, career of extravagance. The public at large, greatly more than this railroad company, suffered from *359the results of its recklessness, which necessitated its speedy abolition by the power which created it. Yet the railroad company cannot, any more than private citizens, be relieved from the burden of taxation entailed upon the entire community by its mistaken action. It is well settled law that a. municipality is not liable for an error of judgment on the part of its agents. Johnston v. District of Columbia, 118 U. S. 19; Dillon on Mun. Corp.,sec. 948, and notes, and cases there, cited. And from this it follows necessarily that its rights cannot be impaired by any such error of judgment. It does not cease to be responsible for the cost of a pavement because its agents have mistakenly selected one of inferior character. It does not lose its power of taxation therefor, because the worthlessness of the pavement happens afterwards to be demonstrated. The railroad company in this instance stands in no better position than the private citizen. The latter has contributed to the expense of these worthless pavements through the medium of general taxation ; citizens, whose property was located along the line of supposed improvement, have been compelled by special assessment to contribute more than their share of the general burden ; and the railroad company, which voluntarily by its charter assumed the duty of paving the portion of the highway occupied by its tracks and voluntarily assumed the risk, as we have held it did, of being subject to the direction of the municipality and of its agents in that regard, cannot stand in any better position. Its case appears to be a case of hardship; but it is not substantially different, or at all different in principle, from that of the rest of the community.

It is objected further, on the part of the defendant, that the streets involved in this controversy had never been authorized by the Legislative Assembly to be improved, and that therefore the proceedings of the Board of Public Works in regard to them were all null and void. There is force in this argument, and as an original proposition it might be admitted to be true. So far as this record shows, there was a taint of illegality in all the operations of the Board of *360Public Works. But these Operations, so far as they could be the source of resultant right and resultant liability, Congress has so frequently recognized that without here entering into, detailed examination of the legislation on the subject, we must hold them to have been validated, to the same extent as though they had been authorized in the first instance. Mattingly v. District of Columbia, 97 U. S. 687.

We must conclude, therefore, that in respect of the items mentioned in schedule A, the District of Columbia is entitled to recover from the defendant, the Metropolitan Railroad Company, the amount thereof, namely, the sum of #37i5Si-6i.

5. And the result of the whole is, that we find to be due from the defendant, the Metropolitan Railroad Company, to the plaintiff; the. District of Columbia, the amount of schedule A, being.the sum of $37,551,61, and the amount of schedule B2, being the sum of $ 1,914.5 2, constituting the aggregate sum of $39,466.13; from which there is to be deducted the sum of $5,330.01, being the value of the cobble-stones belonging to the railroad company, conceded to have been taken and appropriated by the District of Columbia to its own use. The net remainder is the sum of thirty four thousand one hundred and thirty-six dollars and twelve ' cents ($3‡,136.12), for which sum, with interest thereon from November 27, 1880, the date of the institution of tins suit, judgment will be entered in favor of the plaintiff, the District of Columbia, with costs, as provided by the act of Congress referring the cause to this court. And it is so ordered.

dissenting

Disagreeing with my brothers on some-only of the questions involved in this case, which, however, seriously affect the amount of the judgment to be pronounced, I am compelled to go beyond a mere expression of dissent in order that my views may not be misunderstood. I concur in their conclusion that the defendant is justly liable'for the sums set forth in schedules A and B2, amounting, after de*361ducting the agreed credit, to the sum of $34,136.12 ; and indorse the propriety of the disclaimer made by the counsel for the District in respect of the claim of $15,292.63, stated in schedule D. Our differences are in respect of defendant’s liability for the greater part of the entire amount in controversy, that is comprised in schedules B and C, amounting to the principal sum of $98,078.30. Those schedules, it will be remembered, comprise all the charges made for paving done on streets not at the time in use by the defendant, where, under permission of the Board of Public Works, it laid its crossties and sleepers as the paving progressed, following with its rails and business use of the tracks later.

Before discussing the questions of strict law upon which, in my opinion, the liability of the defendant depends, I will review, to some extent, the history of these claims and the proceedings in respect of their collection, taking a somewhat wider range than may be necessary becáuse of the supposed equities urged by counsel on behalf of the defendant, and the hardships that have been visited upon it, which, stated at some length in the opinion of my brothers (though not by way of foundation for their conclusion), seem to have had some influence upon them.

One of the contentions of the defendant was founded in the practical construction that had been given the charters of the defendant and the other corporations which it absorbed, by the Board of Public Works, in omitting to assess any of the cost of. paving, with one exception, noted later, against the defendant, and it was also contended, upon the strength of an excerpt from the report of the Board of Audit, which will also be referred to again later, that the same view had been taken by that board ancl subsequently acquiesced in by Congress. Whilst not sustaining that ground of defence, which applied with more force to the claims in schedule A than to these, my brothers have, neverthejess, referred thereto, and with some slight criticism, implied rather than express; upon the action of the District *362authorities in bringing this suit without waiting, for the action in the matter that had been invoked of Congress.

In the light of the severe, but just, criticism that the Board of Public Works has received in the argument of counsel for defendant, and in the opinion of the court, for its arbitrary and illegal conduct throughout its administration of affairs, I am justified in regarding its construction of the obligations of the defendant as entitled to no weight whatever. But as I read the record, at no time since the abolition of that board has there been any acquiescence whatever in the exemption from liability claimed by the defendant from the charge for its proportion of the paving done on all the streets which it occupied. There was confusion of counsel and of action in respect of the manner of maintaining and fixing the charge, and there was inaction by Congress; but there was nothing more. The claim was constantly and persistently made, in one form or another, as I shall show. It should be remembered, too, in considering the hardships of defendant’s situation, and any equities that may arise thereon on account of the arbitrary conduct of the Board of Public Works and its grievous mistakes in the matter of worthless wooden and concrete pavements, that Congress finally ratified their acts in general and validated their assessments upon abutting property owners who were compelled by the judgment of the highest court in the land to pay the same. Mattingly v. District of Columbia, 97 U. S. 687, 692. Recognizing the paramount authority of Congress in the premises, the court was constrained to. say : “ It may be that the burden laid upon the property of the complainants is onerous. Special assessments for special road or street improvements very often are oppressive. But that the legislative power may authorize them, and may direct them to be made in proportion to the frontage, area, or market value of the adjoining property, at its discretion, is, under the decisions, no longer an open question.”

During the term of the provisional government that succeeded the one in power during the time of the improve*363ments, and in the early days of the present government, controversies arose with the defendant and other railroad companies touching eveiy point of the claims and there were conflicts also in the opinions of succeeding counsel for the District, as stated in the opinion of the court. When it abolished the old government, Congress created the Board of Audit to examine into the financial condition of the District, which it found a work of great difficulty on account of the manner in which the books, accounts, and records had been kept. When the Board of Audit made its first report, on February 15, 1875, there had not been time to make up a complete statement, and the report so shows. In addition to its general report, the board gave, for the information of Congress, an interesting statement of the nature of the grounds of the claims against the railroad companies for paving and of their defences against them. On account of the prevailing conditions and confusion, the report suggested that action be had in the matter by act of Congress. A brief quotation from the report, on this point, is made in the defendant's argument, which, taken by itself, might possibly be misleading. Instead, however, of the report casting any doubt upon the justice of the claims of the District, it plainly shows that the Board of Audit not only considered the defendant liable, as claimed, but also as equitably chargeable with extra expense incurred in grading and paving on account of the impediments of the tracks —a conclusion the principle of which was afterwards expressly approved by the Supreme Court of the United States in W. & G. R. Co. v. District of Columbia, 108 U. S. 522.

Other and distinct equitable claims are made in addition. The report shows, as to these, that.notwithstanding the acts of incorporation provide that “ said roads shall be deemed real estate, and they, together with other real property, and the personal property of said body corporate, shall be liable to taxation as other real estate and personal property in the cities aforesaid,” nothing has ever been collected thereon. The report proceeds as follows:

*364“ The collector of the District reports that for the fiscal year ending June 30, 1872, the Washington and Georgetown Railroad was assessed a tax of $4,570 upon their road under this provision, and the Metropolitan road a tax of 51,275. For the next fiscal year no tax of this character was assessed against the Washington and Georgetown road, but a tax of $1,275 was assessed against the Metropolitan. No other assessment was subsequently made against any of the roads. These taxes have not been paid, and so far as the examination has been made, no such assessment has ever been paid by either. Subsequent to the assessment for 1873, the roads would seem to have brought the question before the board of appeals, and that board decided that the roads were not to be deemed real estate, but personal property, and, as such, exempt from tax under the District law.”

The report also refers to the provision requiring the roads to change their grades so as to conform to alterations that might be made, from time to time, and says *.

“ But an examination of the accounts shows that the District has itself paid for all the grading done in the streets occupied by these roads, and the most that they have done is to adjust and level their tracks after the street was raised or lowered to the new grade, while the presence of those tracks in the streets, in gome cases, more than doubled the cost of the excavation of the portion of the streets occupied by the roads, while the cost of paving was also increased by the same cause, and claims for extra compensation have been filed for such paving.”

It may well be that the foregoing includes the additional cost that must have attended the laying of the pavement between and oyer the defendant’s crosstiés and sleepers, that were put down in advance of the work of paving, on the streets named in schedules B and C, for the report proceeds, without intermission, as follows: “ In many of these streets advantage of these changes was taken to lay down new lines of road — the companies putting down their ties *365and sills upon the roadbed as made by the contractors and keeping just in advance of the laying of the pavement, leaving the rails to be subsequently laid, and the streets thus graded and paved and their roadbed prepared without expense to them. It was claimed that there could be no railroad until the rails were laid, and as the rails were not laid until the improvements were completed there was no railroad upon which any part of the expense could be charged.”

After a review of all the leading facts bearing upon the claims against the several railroad companies, the report concludes with the following statement and recommendation, which includes the excerpt stated above as having been quoted on the brief for the defendant: “ What liabilities their charters impose were accepted by them as conditions of. the grant. There does not seem to be any room for doubt as to the meaning and intent of the first provision of their charters. These roads deny that under the subsequent provisions they are liable for any portion of the expense of street improvements, and the action of the late District authorities would seem to indicate that they have yielded in some degree to their claims. Under these circumstances it might be proper that Congress should, by appropriate legislation, give an authoritative construction to those charter provisions, and if these should be found to be' too burdensome to make such modifications as may seem to be just and then iequire these roads to conform to such provisions. There is a difficulty in undertaking to fix an arbitrary amount which should be charged to these roads on this account, inasmuch as all the reasons urged by them why they should be relieved from a portion, or the whole of this expense, would apply with equal force if urged by the individual property holder.”

We have seen how this difficulty was met in the cáse of the “ individual property holder.” As assessments had been actually made against the abutting lot owners by the Board of Public Works, the subsequent legislation of Congress — the acts of 1878 — had the effect to cure the irregu*366larities in their procéedings and to fasten the charge upon the abutting lots. See Mattingly v. District of Columbia, supra. The only relief for the lot owner was in the power given to revise the assessments and correct errors of amounts therein and issue “ drawback ” certificates therefor.

The railroad companies, by reason of the action, or non-action, of the Board of Public Works in regard to the claims against them, were not included in that legislation. Congress simply took no action as regards them; it neither imposed a new liability nor relieved them from an old one. After the change in the District government, the authorities, after much groping in the dark and making some mistakes, adopted the theory'maintained in this suit and made up the account for the actual paving done, without extra charges for the additional expense thereof caused by the tracks. This appears in the report of the Board of Audit, and exhibits thereto, presented June 12, 1882. This suit had then been pending more than a year. That report says :

“ Under authority of the act of June 19, 1878, ‘to provide for the revision and correction of assessments for special improvements,’ the present Board of Commissioners in revising and correcting said assessments, charged against the railroads the cost of improving that portion of all streets occupied by their tracks, for which they were believed to be chargeable, and to that extent relieved the property abutting on such streets. That the authority of the Commissioners’to make such revision and correction of these assessments being denied, and payment of the sums charged being refused, suits for the recovery of the same were instituted and are now pending.”

- That report was accompanied by correspondence between the Commissioners and their counsel from [874 to 1878, chiefly on the right claimed to assess the railroad companies as owners of land, just as abutting lot owners had been. That right, of course, could not be maintained. The companies owned no land in the streets, but a mere *367license to use them ; and their liability necessarily arose under their charters or not at all.

The communication or report -of the Commissioners, made March i, 1880, to which reference is made in the opinion of the court, was in response to an inquiry concerning the claims against the railroad companies, made by the Senate Committee for the District of Columbia. After stating the causes for delay and referring to the report and suggestions of the Board of Audit, made in 1875, the Commissioners said: “No action was taken by Congress upon this report. The taxes referred to have been the subject of constant litigation and conflict of legal opinion. The question of the legality of the special assessments was only decided by the Supreme Court of the United States, on appeal, on the 16th of December, 1878, subsequént to the passage of an act for the enforcement of the special assessments, approved June 19, 1878. Under this act it became necessary to revise the special assessments, made in pursuance of the act of August xo, 1871, remaining unpaid. Before this revision was completed, a further act of Congress, approved June 27, 1879, required that the said special assessments, made in pursuance of the above-mentioned act, should also be revised and extended the time of payment, with an abatement of penalties and a reduction of interest, where not specially excepted, until October 1, 1879. Owing to the late date of the passage of the act and the enormous labor of the revision, involving the reexamination of all vouchers paid for special improvements by the Board of Public Works and their successors, it has not been possible to complete the required work. Congress having taken ho action upon the report of the Board of Audit heretofore referred to, the Commissioners in .revising were compelled to base their revision upon the opinion of the attorney of the District as to the requirements of existing law. They therefore, in answer to a request of the Senate Committee on the ióth ultimo, submitted a statement of the several accounts, so far as revised, but *368have not thought it advisable to take decisive action for the collection of the amounts which have been or may be found due until the revision shall have been completed and shall have received the sanction of Congress. The report of the clerk in charge of the revision of assessments, giving in full the opinion of the attorney bearing upon this question, is herewith inclosed. The board is of opinion that this matter having been referred in 1874 to the Board of Audit, and thereby virtually removed from the jurisdiction of the Commissioners, further legislation is desirable before final action is taken.”

The report was accompanied by an exhibit showing the charges made agai.nst the defendant, among others, identically as maintained in this suit. Again Congress took no action, and the Commissioners instituted the suit. The causes of - delay in the matter previously, and those for acting without further direction from Congress, are stated in a most satisfactory manner in a letter to the Commissioners, also found in the record, from their counsel, Albert G. Riddle, Esq., who brought the suit. After stating the legislation on the subject of paving, etc., he says: “The act of June 20, 1874, created a Board of Audit and enjoined upon it the special duty of reporting to Congress the amount due the District on account of the above premises. This was complied with February 15, 1875. A member of the first Board of Commissioners informed me that the Commissioners of that time supposed that Congress, being informed, would take action in the premises, and awaited the result. None was had, and, as appears, in 1877 the Commissioners referred the question to their attorney, who held that the District was without remedy in the premises, but that the cost of the work chargeable to the railroads could in no event be cast upon abutting property owners. In January, 1880, the Senate.called upon the Commissioners for a report as to these claims. This matter was brought to the notice of the District Cominittee of the House during the second session of the last Congress, who called the *369officers of the company before them and an understanding was had between them and the Commissioners that amicable cases should be made up and submitted to the Supreme Court of the District, and the matters adjudicated. It was not until that time that I became aware of the existence of these claims as still subsisting. The agreement to make up cases was not reduced to writing, nor were the counsel of the companies and District present when it was made before the committee. When advised of their action, I drew up statements of the cases and applied to the several attorneys of the railroads to join in making up the proposed cases. Several months from March, 1880, were fruitlessly spent in this endeavor, when I ascertained that it was the purpose of the railroads to plead the statute of limitations to the claims of the District. I then commenced the suit,” etc.

The apprehension of counsel in respect of the plea of limitations was justified. That defence was made. Judgment was rendered against the defendant for the full amount of the claims, and affirmed by the court in General Term. But on appeal to the Supreme Court of the United States the judgment was reversed on the ground that limitation was well pleaded, because the District of Columbia was not a sovereignty and exempt as such from the bar of the statute. 132 U. S. 1.

The foregoing review of the history of this long continued controversy, supplementing that given in the -.opinion-agreed upon by my brothers, has been made, not because it ought to. have any real weight in the determination of the particular question of liability under the schedules of claims now under consideration, but because it tends to show, not only that claims in the nature of those maintained in this suit have always been asserted on behalf of the District, save, perhaps, during the sway of the Board of Public Works, but also that the equities of the situation are, to say the least, not all on the side of the defendant. Moreover, it furnishes complete justification for the apparently harsh and arbitrary act of Congress in coupling with *370the relief against forfeiture prayed for by the defendant the independent provision under which the case was brought to trial in this court. That act was a tardy response to the suggestion of the Board of Audit made in 1875, and was an apparently harsh exercise of power ; but it was intrinsically just.

I come now to the questions of law directly involved in the claims made in these two schedules (B and C), without regard to any considerations founded in the history of the general relations of the parties.

When the Board of Public Works undertook to pave the streets named in these schedules, it is said that there was some sort of a verbal understanding that the defendant might lay its crossties and sleepers immediately in advance of the work of paving, as it progressed, without incurring a charge for paving between the tracks under the terms of the charter. At the suggestion of the board, it is said the president of the defendant company addressed the letter thereto which appears in the opinion of my brothers. The response was the adoption by the board of the following resolution :

“ Resolved, That when this board shall have authorized the paving of a roadway of.any street or avenue along which any horse railroad company is empowered to lay railroad tracks, such company shall have the privilege of laying, at its own expense, the sleepers, crossties and other wood work of such tracks in advance of paving, so as to prepare the track for the rails and thus prevent the necessity of disturbing the pavement for this purpose at a future time, said work to be done under the direction of the board.”

In the construction of all grants of franchises and concessions of special privileges and exemptions, it is the sound and well-established rule to resolve every doubt in favor of the sovereign or public grantor and to concede to the grantee no power, privilege or exemption that has not been expressly conferred, or that is not to be implied, necessarily, from the terms of the grant. Tested by that rule, the fore*371going resolution does not make an agreement with the defendant, though in response to the letter of its president, that the paving shall be without charge, either present or future. Whilst precise and definite in other respects, it omits recital, or mention even, of that important particular. Had the board intended to make, a contract with defendant it would have accepted its proposition formally and directly. .Instead- of so doing, it passed a resolution, applicable to all railroad companies alike, in which it carefully avoided any promise of exemption from liability to assessment under the provisions of their charters. It was, by its express terms, a privilege given to all companies, for private and public convenience, to build their tracks part at a time. Nothing more can be predicated of it. Let us suppose that another company was here claiming this exemption — a company that had written no letter, asked for no favors, and had had no negotiations with the board. Could it be said that it had a contract or agreement with the board by which it was released from the liability to pay for its proportion of the pavement ? Looking to the resolution alone, is there a word in it to justify any such conclusion? I think not. And yet that resolution was unquestionably and confessedly intended for the benefit of one company as much as another.

I will now consider the question from other points of view, assuming, for the purposes of the discussion, that the construction claimed by the defendant is the correct one.

I agree that the defendant was not compelled to construct its tracks along those streets at that time. The board could not have compelled them to do so. They had, under the acts of Congress, from two to three years to enter upon the exercise of the franchise. I fully concede also that the defendant could not be charged with paving that had been laid before it entered into occupation of a street. For obvious reasons, it was not intended that it should be. It could receive no special benefit from such pavement because it would be compelled to remove it, at considerable expense. *372in order to lay its crossties and sleepers as a necessary foundation for its rails. Its only obligation in such cases was to relay the pavement properly and keep it in repair.

As I view the question of defendant’s liability, its solution necessarily depends upon the answers that must be made to the two following questions: i. Whether putting down its crossties and sleepers, ready for the subsequent laying of the rails, was an occupation of the streets, under the grant of the charter, such as to render defendant liable thereunder for a proportion of the cost of new pavement ? 2. If it was, did the Board of Public Works have authority to contract with defendant for an exemption from such liability, or to so act as to estop the District from its assertion ?

i. In my opinion, the laying of the crossties and sleepers, ready fpr the reception of the rails and operation of the road thereafter, was an occupation of the streets under the power conferred by the charter. The conferred easement was taken. The right of election as to time was then exercised ; there was user of the franchise. The grant of the right of way was accepted, and the right thereto fixed, so that a subsequent entry by another company would have been an invasion.

The grant having been accepted, the conditions necessarily attached ; they were inseparable. Unquestionably, that must have been the effect had there been no agreement with the Board of Public Works to the contrary. Marion, etc., Railroad Co. v. Ward, 9 Ind. 123, 125; Morris, etc., Railroad Co. v. Hudson T. R. Co., 25 N. J. Eq. 384; Gilkey v. Watertown, 141 Mass. 317. The elaborate letter of the defendant and the resolution of the board in response thereto, if taken as an agreement to the proposition, indicate the apprehension of both in respect of the result, unless forestalled by some agreement.

Whether the defendant made immediate and complete use of the occupation it had begun, in so far as the question here involved is concerned, I regard as wholly immaterial.

*3732. Whilst the right to regulate the improvement of the streets and the use of the same had been conferred upon the Board of Public Works in general terms, and in the .exercise thereof it might permit the defendant to construct its tracks, part at a time, its power clearly did not extend to the exemption of defendant from a liability on an.obligation that had been imposed by Congress. What it could not do directly it could not do indirectly.

In relation to an arrangement of somewhat similar character between the same Board of Public Works and another corporate holder of franchises in the city of Washington, we had occasion, in another case, to announce a doctrine that is equally applicable here: “ Neither the Governor’ nor the Board of Public Works having the power to bind the District by express contract, it is idle to contend that they could accomplish the same purpose indirectly, by acquiescing in the usurpation of power by the market company, and permitting it to proceed upon the assumption that a contract right existed, and thus work an estoppel upon the public and the succeeding District government.” Washington Market Co. v. District of Columbia, 6 App. D. C. 34; see also People ex rel. City of Detroit v. Railroad Co., 41 Mich. 413, 414.

I think the correct view of the legal effect of the arrangement was taken by the Supreme Court of the District, sitting in General Term, when the case was tried there, and is well expressed in the language of Mr. Justice Cox, who delivered the opinion of the court, as follows : “ It seems to us, as this company had elected to construct its road in the street and have the use of the pavement .which the board was laying down, and complete its road after the pavement was completed, that this process of constructing its road was to be treated as one thing; that it could not • divide it up so as to get the benefit of the pavement that the board was laying down, and yet avoid the charge that the law imposed when it constructed its' road simultaneously with the work done by the board-; that when it did use and *374occupy the street for the purpose of its railroad it should reimburse the board for the paving that was done for its benefit; and that when Mr. Thompson (referring to the letter to the board) said that it was willing to lay its stringers and crossties ‘ provided the paving be done without charge to us,’ he should have said, ‘ provided that when the road is completed, and when we occupy, the street hereafter, we will reimburse you for the work you are now doing.’ ” 4 Mackey, 234.

The foregoing accords with the view, also, that by the terms of the resolution itself, payment of the paving charge was postponed, merely, to the time of final completion and use of cars. This power of postponement.of the assessment and the enforcement of the. payment might have been in the board; but the power to grant a complete exemption could not exist without nullification-of the express command of Congress.

I regard it as unfortunate that the record - is silent in respect of the exact time that elapsed between the putting down of the sleepers and crossties and the imposition of the rails, and operation of cars. It is a fact that could have been shown, it is to be presumed, with precision by the records of the defendant. By reason of this omission, and the nature of the agreement as to the facts, the question of bad faith is eliminated from the case. Assuming the good faith of the transaction does not alter the legal .effect of- the acts done thereunder.

With the greatest-respect for the opinion of my brothers, on all questions, I am nevertheless constrained to regard their view- of the effect of this agreement and the part construction of the railroad under it as erroneous. Moreover, as an established doctrine, it is fraught with danger to public interests in the future. Under it, what is there to prevent the execution of similar plans and agreements in future extensions of lines of street railways ? Rights to extend along other unpaved streets may be in existence, or may be given, with liberal time in which to begin the work *375of construction or operation. Building may be postponed in anticipation of intermediate paving by the municipal authorities, and an agreement may be had with them by which miles of track, ready to receive the rails, may be constructed immediately in advance of the work of paving, and the railway company relieved from payment of its proportional part thereof, and the conditions of its charter evaded, because it cannot be considered a “railroad” until such time as its rails shall have been added to the structure prepared for their reception. I cannot yield assent to the soundness of an argument that would lead to such a conclusion ; nor can I believe that Congress contemplated the possibility of such a result when defendant’s charter was granted,.

I can see no weight in the suggestion that if the defendant had waited the full time, or less, allowed for its construction under the act of Congress, it would have had the benefit of the pavement without paying for it. Had it waited to put down its crossties and sleepers until after the paving had been done, certainly it could not have been charged with any part of the original cost. But it did not wait. Having the right, it elected not to do so. There was method in its action. Had it waited, it would have had additional expense in removing the pavement and putting down its wooden foundations and supports for its rails. The obstructions offered by these wooden foundations necessarily increased the difficulty and expense of the pavement to the District, for which it received no compensation. They added to the charges assessed against the abutting lot owners, who had no voice in the arrangement and were powerless to prevent its execution. The arrangement was profitable to the railroad company, at any rate, and, despite the specious reasons given in the letter of its president, I can but doubt that its action was prompted by a desire to sub-serve the interests of the public.

It is useless, however, to prolong the discussion. Setting out to give some reasons for my failure to assent to the j udgment rendered, I find that I have far exceeded the limit content-*376plated when I began. I will therefore conclude with a statement of the amount of the judgment that I believe should be rendered for the plaintiff Taking all the schedules together, excepting D, which is excluded for the reasons given, there remains the sum of $137,544.43. Deducting from this the agreed credit of $5,330.01, for the cobblestones, leaves $132,214.42, for which sum, with interest, the District ought to have judgment.

On March 30, 1896, Mr.. Nathaniel Wilson and Mr.. W. D. Davidge, for the defendant company, filed a motion for modification of the judgment by omitting therefrom the requirement of interest on the sum adjudged to be due from the railroad company.

Mr. S. T. Thomas and Mr. A. B. Duvall opposed the motion.

On April 16, 1896, the motion was overruled, Mr. Justice Morris delivering the opinion of the Court:

A motion has been filed in this cause for a modification of the judgment therein, so as to omit from the judgment the requirement of the payment of interest on the principal sum adjudged to be due from the railroad company to -the District of Columbia, and six different grounds are assigned for such modifications; and briefs have been" filed by the parties both in support of the motion and in opposition to it.

The question raised is one which was not omitted from our consideration when the main issue was determined by us'; and the judgment was not formulated without due deliberation thereon. We are unable to find in the reasons suggested by counsel any good ground for the proposed modification.

We think it may be stated as the general rule of the common law of our country, different, it is true, from the former rule in England prior to the statute of 3 and 4 William 4, chap. 42, but perfectly well settled with us, “that if a debt *377ought to be paid at a particular time, and is not then paid, through the default of the debtor, compensation in damages, equal to the value of the money, which is the legal interest upon it, shall be paid during such time as the party is in default.” See American Leading Cases, vol. 1,616, where the cases upon the subject are collated and discussed. And this rule has received the approval of the Supreme Court of the United States. London v. Shelby County, 104 U. S. 771; Chicago v. Tebbetts, 104 U. S. 120; Young v. Godbe, 15 Wall. 562; Curtis v. Innerarity, 6 How. 146. It is true that, in-order to be allowed, it should be claimed in the declaration; but when it is so claimed, there can be no doubt of the right of a plaintiff, upon a proper showing, to recover interest as well as principal.

Indeed, we do not understand this rule to be controverted by the defendant. The argument seems to be rather to the effect that interest should not be allowed in this case, because the act of Congress referring the cause to this court requires merely the determination of the amount of the indebtedness of the railroad company to the District and makes no special mention of interest, and because by existing legislation the determination of the matter of interest is remitted to the jury, and is not, as it is claimed, left to the court to settle. And it is also urged that, by the decision of the Supreme Court of the United States in the case upon the question of the statute of limitations, the claim of the plaintiff against the defendant ceased to have any legal existence, and that the subsequent waiver of the railroad company did not revive the. right to interest.

We cannot regard this argument as well founded. The decision of the Supreme Court did not extinguish any legal right of the plaintiff; it simply determined that the plaintiff had lost its remedy. The statute of limitations, it is perfectly well settled, operates upon the remedy, not upon the right. And the waiver of the defendant was not in any manner a revival of the right of the plaintiff, but merely a waiver of its defences under the statute of limitations. It *378was an agreement on the part of the railroad company to vacate the judgment of the Supreme Court of the United States; as well as tire judgment of the Supreme Court of the District of Columbia, and to withdraw its pleas of the statute of limitations and of want of notice. And the resuit of that waiver and of the act of Congress referring the cause to this court was to leave the cause for trial de novo by this court, acting both as court and jury, upon the pleadings in the cause, exclusive of the pleas withdrawn by the waiver, and upon such testimony as should be submitted to the court. The special direction of the act of Congress is “ from and upon the record and pleadings and proofs,"' to determine what indebtedness, if any, is due from the railroad company to the District. In the declaration, which was the principal pleading of the District of Columbia, the claim of indebtedness was the sum of $161,622.52, “ vtdth interest thereon from the 25th day of February, r88of on which date, it is stated, the account was presented to. the defendant and payment was refused by it. By the pleadings, interest was made as much a part of the claim as the principal itself; and it would be a palpable violation on our part of the mandate of Congress if we disregarded so essentia! a part of the claim, made so, as we have seen, by the universal rule of our common law. Indeed, it is not at all certain that, under the circumstances, interest might not have been allowed from the years 1872, 1873 and 1874, when the work was done for which the liability of the railroad company was incurred. But as it was not claimed by the District for any time prior to February 25, 1880, we have not deemed it proper to go back of that date.

It is urged on behalf of. the defendant, that interest should not be allowed, because it was not urged before the special commissioner, and no interest was found due by that officer’s report; and because neither in the oral argument nor in the'' brief on behalf of the plaintiff' was payment of interest urged. But plainly there is no force in this argument. What the duties of the special commissioner were *379is quite apparent. His exceedingly valuable report in this case did not supersede action by the court, but merely supplied a basis- for it. And it is not apparent that the District of Columbia anywhere abandoned its claim to interest as part of - the indebtedness due to it from the defendant.

If any. liability whatever accrued on the part of the defendant to the plaintiff — and we have held that such liability did accrue in 1872, 1873, and 1874, on account of the work then done by the plaintiff for the defendant— interest; when claimed, followed as a necessary incident of such liability, as soon as the defendant became in default.

The motion for a modification .of the judgment cannot, therefore, be'allowed.