MR. JUSTICE BRADLEY delivered the opinion of the court.
This was an action brought by the District of Columbia in November, 1880, to recover from the Metropolitan Railroad Company the sum of $161,622.52. The alleged cause of action was work done and materials furnished by the plaintiff in paving certain streets and avenues in the city of Washington at various times in the years 1871, 1872, 1873, 1874, and 1875, upon and in consequence of the neglect of the defendant to do said work and furnish said materials in accordance with its duty as prescribed by its charter.
The defendant was chartered by an act of Congress dated July 1, 1864, 13 Stat. 326, c. 190, and amended March 3, 1865, 13 Stat. 536, c. 119. By these acts it was authorized to construct and operate lines or routes of double track railways in designated streets and avenues in Washington and Georgetown.
The first section of the charter contains the following proviso: "Provided, that the use and maintenance of said road shall be subject to the municipal regulations of the city of Washington within its corporate limits." Of course this provision reserves police control over the road and its operations on the part of the authorities of the city. The fourth section of the charter declares, "that the said corporation hereby created shall be bound to 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, without expense to the United States or to the city of Washington." The fifth section declares "that nothing in this act shall prevent the government at any time, 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
It is on these provisions that the claim of the city is based.
The amended declaration sets out in great detail the grading and paving which were done in various streets and avenues along and adjoining the tracks of the defendant, and which it is averred should have been done by the defendant under the provisions of its charter; but which the defendant neglected and refused to do.
The defendant filed twelve several pleas to the action, the eleventh and twelfth being pleas of the statute of limitations. Issue was taken upon all the pleas except these two, and they were demurred to. The court sustained the demurrer, and the cause was tried on the other issues, and a verdict found for the plaintiff. 4 Mackey, 214.
The case is brought here by writ of error, which brings up for consideration a bill of exceptions taken at the trial, and the ruling upon the demurrer to the pleas of the statute of limitations. It is conceded that if the court below erred in sustaining that demurrer, the judgment must be reversed. That question will, therefore, be first considered.
It is contended by the plaintiff that it (the District of Columbia) is not amenable to the statute of limitations, for three reasons: first, because of its dignity as partaking of the sovereign power of government; secondly, because it is not embraced in the terms of the statute of limitations in force in the District; and, thirdly, because if the general words of the statute are sufficiently broad to include the District, still, municipal corporations, unless specially mentioned, are not subject to the statute.
1. The first question, therefore, will be, whether the District of Columbia is, or is not, a municipal body merely, or whether it has such a sovereign character, or is so identified with or representative of the sovereignty of the United States as to be entitled to the prerogatives and exemptions of sovereignty.
In order to a better understanding of the subject under consideration, it will be proper to take a brief survey of the government of the District and the changes it has undergone since its first organization.
The powers of the Levy Court extended more particularly to the country, outside of the cities; but also to some matters in the cities common to the whole county. It was reorganized, and its powers and duties more specifically defined, in the acts of July 1st, 1812, 2 Stat. 771, c. 117, and of March 3d, 1863, 12 Stat. 799. By the last act, the members of the court were to be nine in number, and to be appointed by the President and Senate.
In the first year of the war, August 6th, 1861, 12 Stat. 320, c. 62, an act was passed "to create a Metropolitan Police District of the District of Columbia, and to establish a Police therefor." The police had previously been appointed and regulated by the mayor and common council of Washington; but it was now deemed important that it should be under the control of the government. The act provided for the appointment of five commissioners by the President and Senate, who, together with the mayors of Washington and Georgetown, were to form the board of police for the District; and this board was invested with extraordinary powers of surveillance and guardianship of the peace.
This general review of the form of government which prevailed in the District of Columbia and city of Washington prior to 1871 is sufficient to show that it was strictly municipal in its character; and that the government of the United States, except so far as the protection of its own public buildings and property was concerned, took no part in the local government, any more than any state government interferes with the municipal administration of its cities. The officers
In 1871 an important modification was made in the form of the District government; a legislature was established, with all the apparatus of a distinct government. By the act of February 21st, of that year, entitled "An Act to provide a Government for the District of Columbia," 16 Stat. 419, c. 62, it was enacted (§ 1) that all that part of the territory of the United States included within the limits of the District of Columbia be created into a government by the name of the District of Columbia, by which name it was constituted "a body corporate for municipal purposes," with power to make contracts, sue and be sued, and "to exercise all other powers of a municipal corporation not inconsistent with the Constitution and laws of the United States." A governor and legislature were created; also a board of public works; the latter to consist of the governor as its president, and four other persons, to be appointed by the President and Senate. To this board was given the control and repair of the streets, avenues, alleys and sewers of the city of Washington, and all other works which might be intrusted to their charge by the legislative assembly or Congress. They were empowered to disburse the moneys raised for the improvement of streets, avenues, alleys and sewers, and roads and bridges, and to assess upon adjoining property, specially benefited thereby, a reasonable proportion of the cost, not exceeding one-third. The acts of this board were held to be binding on the municipality of the District in Barnes v. District of Columbia, 91 U.S. 540. It was regarded as a mere branch of the District government, though appointed by the President and not subject to the control of the District authorities.
This constitution lasted until June 20th, 1874, when an act
Under these different changes the administration of the affairs of the District of Columbia and city of Washington has gone on in much the same way, except a change in the depositaries of power, and in the extent and number of powers conferred upon them. Legislative powers have now ceased, and the municipal government is confined to mere administration. The identity of corporate existence is continued, and all actions and suits for and against the District are preserved unaffected by the changes that have occurred.
In view of these laws, the counsel of the plaintiff contend that the government of the District of Columbia is a department of the United States government, and that the corporation is a mere name, and not a person in the sense of the law, distinct from the government itself. We cannot assent to this view. It is contrary to the express language of the statutes. That language is that the District shall "remain and continue a municipal corporation," with all rights of action and suits for and against it. If it were a department of the government, how could it be sued? Can the Treasury Department be sued? or any other department? We are of opinion that the corporate capacity and corporate liabilities
We are clearly of opinion that the plaintiff is a municipal corporation, having a right to sue and be sued, and subject to the ordinary rules that govern the law of procedure between private persons.
The statute in force in the District is that of Maryland, passed in 1715, c. 23. The act, as regards personal actions, is substantially the same as that of 21 James I. It commences with a preamble, as follows: "Forasmuch as nothing can be more essential to the peace and tranquillity of this province than the quieting the estates of the inhabitants thereof, and for the effecting of which no better measures can be taken than a limitation of time for the commencing of such actions as in the several and respective courts within this province are brought, from the time of the cause of such actions accruing." It is then enacted, "that all actions of trespass quare clausum fregit, all actions of trespass, detinue, sur trover, or replevin, . . . all actions of account, contract, debt, book, or upon the case, . . . all actions of debt for lending, or contract without specialty, . . . shall be sued or brought by any person or persons within this province, . . . shall be commenced or sued within the time and limitation hereafter expressed, and not after; that is to say, the said actions of account, and the said actions upon the case, upon simple contract, . . . and the said actions for debt, detinue, and replevin . . . within three years ensuing the cause of such action, and not after; ____." 1 Kilty's Laws, April, 1715, c. 23. There is nothing in any part of the act to restrain the generality of this language: "all [enumerated] actions sued or brought by any person or persons within this province, . . . shall be commenced within three years." Corporations are "persons" in the law. There is no apparent reason why they should not be included in the statute. It is conceded that private corporations are included. On what ground, then, can municipal corporations be excluded? Not on the ground that they are not "persons," for that would exclude private corporations. They are, therefore, within the terms of the law.
3. Are they not also within the spirit and reason of the law?
It is scarcely necessary to discuss further the question of the applicability of the statute of limitations to a purely municipal corporation when it is embraced within the general terms of the law. It was expressly decided to be applicable in the cases of Kennebunkport v. Smith, 22 Maine, 445; Cincinnati v. First Presbyterian Church, 8 Ohio, 298; Cincinnati v. Evans, 5 Ohio St. 594; St. Charles County v. Powell, 22 Missouri, 525; Armstrong v. Dalton, 4 Devereux, (Law,) 568; and other cases cited in the notes to Wood on Limitations, § 53; and to 2 Dillon on Municipal Corporations, § 668, 3d ed. Judge Dillon, in the section last cited, accurately says: "The doctrine is well understood, that to the sovereign power the maxim, `nullum tempus occurrit regi,' applies, and that the United States and the several States are not, without express words, bound by statutes of limitation. Although municipal corporations are considered as public agencies, exercising, in behalf of the State, public duties, there are many cases which
What may be the rule in regard to purprestures and public nuisances, by encroachments upon the highways and other public places, it is not necessary to determine. They are generally offences against the sovereign power itself, and, as such, no length of time can protect them. Where the right of property in such places is vested in the municipality, an assertion of that right may or may not be subject to the law of limitations. We express no opinion on that point, since it may be affected by considerations which are not involved in the present case.
The court below, in its opinion on the demurrer, suggests another ground, having relation to the form of the action, on which it is supposed that the plea of the statute of limitations in this case is untenable. It is this, that the action is founded on a statute, and that the statute of limitations does not apply to actions founded on statutes or other records, or specialties, but only to such as are founded on simple contract or on tort. We think, however, that the court is in error in supposing that the present action is founded on the statute. It is an action on the case upon an implied assumpsit arising out of the defendant's breach of a duty imposed by statute, and the required performance of that duty by the plaintiff in consequence. This raised an implied obligation on the part of the defendant to reimburse and pay to the plaintiff the moneys
The judgment must be reversed, and the cause remanded, with directions to enter judgment for the defendant on the demurrer to the pleas of the statute of limitations; and it is so ordered.