Supreme Court of United States.
*206 Mr. Sidney T. Thomas and Mr. Andrew B. Duvall, for plaintiff in error, submitted on their brief.
Mr. Isaac S. Lyon in person for defendant in error.
MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.
The Supreme Court of the District of Columbia held that the effect of the applicable acts "was to charge the municipality, not with a direct indebtedness for the work done under its ordinance, but with the duty to work out a payment therefor by seeing to it that the cost should be charged as a lien upon adjoining lots, and by enforcing this lien and collecting the special tax from the lot owners;" that the District "became invested with authority, and was charged with the duty, to secure such liens and collect and pay over to the contractor such taxes, in payment for work done under an ordinance of the city of Washington. This power could have been exercised and this duty could have been performed in the present case at any time before the 2d day of October, 1871, when it was cut off by the sale of the lots in question to an innocent purchaser;" that "if the resource of payment out of the special tax could have been secured by the District, *207 and was lost by its omission, a duty to pay the contractor would fairly belong to the District, and an issue of certificates of indebtedness to him would not be a void act;" that these certificates were negotiable and were assigned for value to an innocent purchaser; that plaintiff acted in good faith in making the purchase at the tax sale; that the collector did not act as plaintiff's agent for the collection of the certificates, but in the exercise of public functions and for the District, and that as the District had received and retained the proceeds of the transaction, it had treated the sale as made on its account; and, in conclusion, that as the certificates were valid, and between the parties were purchase money, and as the sale gave nothing to the plaintiff, but the District retained and had disabled itself to return the certificates, it was liable for the amount thereof.
We concur in these views. The work was done in pursuance of a valid contract, and the city, and the District, received the benefit thereof. As the city, and then the District, failed to make the required assessments, the District became liable and the certificates of indebtedness were valid obligations. Memphis v. Brown, 20 Wall. 289, 310, 311; Hitchcock v. Galveston, 96 U.S. 341, 360, 361; Chicago v. People, 56 Illinois, 327; Kearney v. Covington, 1 Met. (Ky.) 339; Cumming v. Mayor, 11 Paige, 596; Reilly v. Albany, 112 N.Y. 30; Fisher v. St. Louis, 44 Missouri, 482; Commercial Bank v. Portland, 24 Oregon, 188; Cole v. Shreveport, 41 La. Ann. 839; Morgan v. Dubuque, 28 Iowa, 575; Fort Worth City Co. v. Smith Bridge Co., 151 U.S. 294, 302.
The certificates admitted the indebtedness and postponed payment until the amount thereof could be realized from an assessment, which it turned out the District could not then lawfully make, though it could have been done prior to October 2, 1871; and there is no pretence that the particular means of payment failed through any laches or fault on the part of Birch or the plaintiff. The tax sale was void but the agreed case shows that plaintiff purchased thereat involuntarily and in good faith to protect his interest in the certificates and paid the full amount in these due bills. He was *208 not bound to take the risk of losing his money because of the invalidity of the assessment and the want of authority in the officer to sell, an officer not acting for him but for the District, and no adequate reason is perceived for cutting him off from reclaiming his certificates and recovering thereon, in view of this total failure of consideration without fault on his part.
Judgment affirmed.
