Opinion of the Court.

[18 App.

cases by the same learned court,- as in the case of Tripp v. Brownell, 2 Gray, 402, and Baker v. Blood, 128 Mass. 545. The same principle has been sanctioned and followed in a large number of the highest State courts of the country, as shown by reported cases. Wall v. Wall, 2 Har. & G. 79; Hughes v. Jackson, 12 Md. 450; Ogden v. Robertson, 15 N. J. L. 124; Owens v. Ranstead, 22 Ill. 161; Magnuson v. Billings, 152 Ind. 177; Walker v. Ducros, 18 La. Ann. 703; State v. O'Day, 68 Iowa, 213; Maberry v. Morse, 43 Me. 176; State v. Edwards, 110 N. C. 511; Maultsby v. Carty, 11 Humph. 361.

The same principle has been fully adopted and applied by the Supreme Court of the United States, in the recent case of Rio Grande Irrigation and Colonization Co. v. Gildersleeve, 174 U. S. 603, 608. That was an appeal from the Supreme Court of the Territory of New Mexico, and the only question presented to the Supreme Court of the United States was, whether the Supreme Court of the territory erred in affirming the judgment of the trial court denying the defendant's motion to vacate a judgment entered in default of an appearance. The judgment by default was entered in vacation of the court, and during the next succeeding term, a motion was made on behalf of the defendant company to vacate the judgment. This motion was denied, and a few days thereafter, another motion, accompanied with an affidavit of defense on the merits, was filed, and this motion was likewise denied. The rule of the court below applicable to the case provided as follows:

"No motion to set aside any finding or judgment rendered in vacation shall be entertained, unless it shall be filed and a copy thereof served upon the opposite party within ten days after the entry of such finding or judgment." The motion. to vacate was not filed until after the lapse of about two months; and this was held to be too late. The Supreme Court of the United States, in affirming the ruling of the Supreme Court of the Territory, said, that as no discretionary power was reserved to the trial judge, he could not dispense

with the rule of court; and then proceeded to cite with approval the case of Thompson v. Hatch, supra, to which we have referred, and to quote therefrom the passage that we have hereinbefore quoted. That case, in the Supreme Court, fully decides that there is no power either in the trial or appellate court to dispense with the rule of court, unless the power to do so be expressly reserved in the rule itself, or in the statute which authorized the making and promulgation of such rule; that a rule of court duly made and published has the force of law, and is binding upon the court as well as upon the parties to the action, and, therefore, cannot be dispensed with to suit the circumstances of any particular case.

Doubtless, however, where the filing of the transcript within the time prescribed has been prevented by the fraud or contrivance of the opposite party, or by the contumacy of the clerk, without any want of diligence on the part of the appellant, in such case, the court would not allow the rule to be set up and availed of by the appellee to defeat the right of appeal. But there is no pretense of any such cause of delay in this case. The rule, therefore, must be applied to this as to all other cases within the rule; and it follows that the motion to vacate the order of dismissal must be denied; and it is so ordered.

Motion to racate the order to dismiss appeal denied.

1. Section 34 of the building regulations, providing that blocks of two or more dwelling-houses shall not be erected until the land upon which they are to be erected has been subdivided, so that each house shall have a separate lot, unless a special permit be granted in each case by the Commissioners of this District, is not a building regulation within the meaning of the act of Congress, authorizing the Commissioners to make and enforce building regulations; and the Commissioners have no right to refuse to issue to the owner of a lot thirty-two feet wide and forty-six feet and four inches deep, a permit to erect two houses thereon, where their refusal is based solely upon that provision of the building regulations and upon section 6 of their rules, regulating the subdivision of lots, which section provides that lots may only be subdivided into lots not less than sixteen feet wide and fifty feet deep.

2. Where the proposed buildings of an applicant for such a permit conform in respect of materials, safety, and healthfulness to the building regulations proper, it is the duty of the Commissioners to issue the permit upon the payment of the lawful fees, and the act required of them, being a purely ministerial one, can be enforced by the writ of mandamus; following Roberts v. Valentine, 13 App. D. C. 38.

No. 1100. Submitted October 3, 1901. Decided November 5, 1901.

HEARING on an appeal by the respondents, the Commissioners and the building inspector of the District of Columbia, from a judgment of the Supreme Court of the District of Columbia, directing a peremptory writ of mandamus to issue to them requiring them to grant a permit to the relator to erect certain dwelling-houses on land owned by him. Affirmed.

The COURT in its opinion stated the case as follows:

This is an appeal from a judgment of the Supreme Court of the District of Columbia ordering a peremptory writ of

D. C.]

Statement of the Case.

mandamus to issue to the Commissioners, and to John B. Brady, building inspector of the District, compelling the grant of permission to the relator, Frederick J. Miller, to build upon certain lots in the city of Washington according to a plan presented by him.

The petition filed by the United States on the relation of Frederick J. Miller alleges the following facts:

1. Relator is a citizen of the United States, residing in the District, and since October 4, 1900, has been the owner in fee-simple of certain land in the city of Washington, known as part of original lot 1 in square numbered 950. The said part of lot has a front of thirty-two feet on Tenth street, and a depth of forty-six feet and four inches; and is unimproved.

2. Relator proposed to erect on said land two two-story and basement brick dwellings with six rooms each; each house was planned to front sixteen feet on Tenth street and extend back thirty-six feet, thus covering the entire frontage and leaving an open space in the rear of ten feet and four inches, which is wider than that required by the building regulations of the District Commissioners.

3. The plans and specifications for said houses were prepared by an architect and conformed, in respect of materials, safety, etc., to the requirements of the said building reguJations and the suggestions of the inspector.

4. Application was then formally made to said inspector as required for the necessary permission to commence building; but this was refused, "not because of any want of conformity of said plans and specifications to the building regulations in the matter of materials, workmanship, and provisions for the safety of the public, and the health of the persons who might inhabit said houses when completed, but because said land was not subdivided as required by the provisions of the building regulations, relating thereto."

5. Section 34 of the building regulations declares that "no dwelling-house less than sixteen feet wide shall be erected; provided, however, that any existing lot that is

Statement of the Case.

[18 App. not less than twelve feet wide, and which is a part of a duly recorded subdivision, may have a dwelling erected thereon the full width of the lot. Blocks of two or more dwellinghouses shall not be erected until the land upon which they are to be erected has been subdivided, so that each house shall have a separate lot, unless special permit be granted in each case by the Commissioners."

A fee is provided for each "permit," and a penalty for failing to obtain the same before building.

6. Pursuant to authority of an act of Congress, the Commissioners had also promulgated rules regulating the subdivision and record of subdivisions of lots. Under these, plats were to be certified and filed in a certain manner, and section 6 of the same, provides that lots may only be subdivided into lots not less than sixteen feet wide and fifty feet deep. Certain exceptions are permitted, which are not material here.

7. Relator applied to the District surveyor, with tender of fees, etc., as required, to make and certify a plat for record dividing his sublot of thirty-two feet by forty-six feet and four inches, into two lots each with sixteen feet frontage on Tenth street.

This was refused, and upon application to the Commissioners they declined to order the same done.

8. The Commissioners refuse to allow the building permit, "because the said proposed lots are not of the required depth of fifty feet, and for no other reason."

9. "Relator further avers that the depth of fifty feet required for each lot, before a permit to erect a building shall under any circumstances be granted, is not necessary to health and safety in the construction of dwellings, but is an arbitrary and unnecessary requirement." And further, that prior to the promulgation of the regulations, many such buildings had been erected and are "still standing and occupied, and are safe and healthful habitations."

10. Averring tender of the lawful fees, and renewing the offer to pay the same, the prayer is for a judgment commanding the issue of said permit, etc.