
    Michael McCormick vs. The District of Columbia et al.
    Equity. No. 9,497.
    Decided February 15, 1885.
    The Chief Justice and Justices Cox and Merrick sitting.
    Equity will not interfere when the invalidity of a tax is perfectly apparent on the face of the proceeding, unless circumstances exist touching the levy-of the tax which would render its enforcement oppressive, of would irreparably injure the party, or when the allowing it to remain until enforced, or attempted to be enforced, would throw a cloud upon the title.
    So, where the record, as far as preserved, shows the tax to be valid, but the record of the intermediate proceedings had been lost or mislaid, chancery, on the allegation of their materiality, will afford relief by directing a discovery from, the defendants.
    Where the foundation is laid for a discovery in aid of a legal right, a court of equity will not only grant the discovery, but will proceed upon the discovery to administer relief.
    Appeal from a decree sustaining a demurrer.
    statement oe the case.
    The complainant being the owner and in possession of a part of lot 12 in square 162, which he purchased on the 29th of July, 1813, as an innocent purchaser without notice, from Florian Hitz, then the owner and occupant of the whole lot, was notified, in February, 1885, by the authorities of the District of Columbia, of the existence of a tax lien certificate which had been issued against the property to defray the expenses of opening an alley, and that his portion of the property would be sold to satisfy the same unless it were paid. The certificate had been bought by the defendant,^hectells, and was held by him as owner. This notice the complainant alleges to have been the first notice to him of any claim against the property, and he filed this bill praying an injunction and discovery and a cancellation of the tax certificate on the ground that the same had been issued without authority of law, and was therefore void and a cloud upon his title.
    
      The several statutes governing the opening of alleys in the city of Washington are as follows:
    Act incorporating Washington, May 15,1820, Wehb’s Digest, p. 1, by which the corporation of Washington was authorized to cause alleys to be opened on the petition of property holders, provided the charges accruing thereby shall be first ascertained by a jury.
    An ordinance passed November 4,1842, required the surveyor within fifteen days to make a plat of the alley, showing the quantity of land in square feet taken from the different lots or parts of lots. Webb’s Digest, 2.
    Section 1 provided that on filing the plat a jury should be empanelled to ascertain the damage which may accrue to any individual.
    Section 2 made it the duty of the mayor, after the return of damages had been made, to appoint three disinterested, citizens to levy a tax equal to the amount thereof, together with other attendant expenses, “in just proportion upon the individuals whose property in the square may be benefited thereby, designating the lot or part of a lot for which they may be respectively taxed; ” and it was made the duty of the collector to collect the same as other taxes are collected.
    Under the provisions of the act of the 21st of February, 1871 (16 Stat. L., 419), the Board of Public Works succeeded to the powers and duties of the corporation of Washington, and hy the 37th section of the act (sec. 77 Bev.-Stats. D. C.), the Board of Public Works was authorized to repair streets and alleys and. to do all other work intrusted to them by the legislative assembly or Congress.
    By section 91, Bev. Stats. D. C., it was provided that all laws and ordinances of the corporation of Washington not inconsistent with that statute should remain in force.
    On the 23d of August, 1871, the legislative assembly passed an act which authorized the Board of Public Works to condemn ground and open alleys upon the presentation of the plat of the proposed alley, accompanied by a petition of a majority of the property holders interested. 1 Legislative Assembly, 109.
    
      This being the state of the law, the bill alleged that on the 31st of May, 1873, while lot 12 was one parcel.and owned by Hitz, a petition was filed for an alley, and a jury empanelled which condemned a portion of this lot for that purpose. Whereupon, on the 7th of June, 1873, William Forsyth, surveyor, undertook to levy a tax against Florian Hitz as follows: “Florian Hitz, lot 12, 10,821 square feet; damages, $653.25; benefits, $1,306.45; tax, $653.20.”
    That “three disinterested citizens” were not appointed to levy the tax, nor was any person appointed, but Forsyth without color of authority thus undertook to make the assessment.
    That on the 27th of June, 1873, Forsyth undertook to revise that assessment and made a new assessment as follows: “Florian Hitz, lot 12,11,057 square feet; damages, $653.25 ; benefits, $1,068.98; tax, $415.73.”
    That on the 2d of July, 1873, a tax certificate was issued for this amount, of which the defendant, Sheckells, became the owner, and which certificate recites that the same is a lien on said property, the whole of lot 12.'
    That on the 21st of October, 1873, and after the complainant had became the purchaser of the easterly twenty feet of said lot, Forsyth wrote to George W. Beall, a clerk having charge of special assessments, in reference to this last-named assessment, as follows:
    “Will you please change lot 12, alley, square 762, as follows :
    “To Florian Hitz, of lot 12, 8,299 square feet; benefits assessed, $802.34; taxable, $149.09.
    “To Michael McCormick, of lot 12, 2,758 square feet; benefits assessed, $266,64; taxable for same amount.
    “Very respectfully,
    “Wm. Forsyth.”
    Which change was, as the complainant believes, thus made, ■and a new assessment was made as follows:
    “Florian Hitz, of lot 12, 8,299 square feet; $490.30 damages; benefits, $639.39; tax, $149.09:
    
      “Michael McCormick, of lot 12, 2,758 square feet; damages, $162.95; benefits, $429.59; tax, $266.64.”
    All of which was without authority of law.
    That on the 29th of July, 1884, the defendant, Sheckells, surrendered the certificate issued on the 2d of July, 1873, for the whole tax against Hitz, and applied for and obtained two certificates in lieu thereof, one against Michael McCormick for $266.64 on 2,758 square feet, and one against Hitz for $149.09 on 8,299 square feet, less a deduction of $50 before that time paid by Hitz; a copy of which certificate against the complainant’s property is filed in this cause, and it recites that the same is a lien upon the complainant’s portion of lot 12, and a sale thereof is now threatened thereunder.
    That there is now no record of these proceedings remain-, ing in the proper offices of the District of Columbia; that the award of the jury has disappeared, and there is no paper in the office referring to this matter except the letter from Forsyth, hereinbefore referred to, and the book on which the entry was made by the clerk, Beall; and for that reason a discovery is necessary and is prayed for, as to what award and finding was made by the jury, and as to what person or persons made the assessment, and by whose appointment and authority such persons undertook to act, and for all the actings and doings had and taken thereunder.
    The defendants demurred to the bill on the ground that the assessments and certificate if void as alleged created no cloud on complainant’s title, and therefore afforded no ground for the interference of a court of equity. The court below sustained the demurrer and complainant appealed.
    H. H. Wells for complainant:
    The complainant’s case rests primarily on the doctrine that the removal of a cloud uponjhe title to real property is a well recognized and established ground for equitable relief, even where the cloud is caused by an illegal tax. Holland vs. Challon, 110 U. S., 15; Union Pacific R’y Co. vs. Cheyenne, 113 U. S., 516; Chapman vs. Brewer, 114 U. S., 158.
    
      But it is said that the case as made by the bill is of such apparent and manifest illegality, such an absolutely void and unauthorized procedure, that equity has no jurisdiction to relieve against it because it is not a cloud on the title.
    The statute, however, declares what the effect of the assessment and certificate shall be—
    “Until paid, the assessment and certificate shall remain and be a lien on the property on or against which they shall have been issued: “and further, that if not paid within one year the property shall, on the application of the holder of the certificate, be sold.”
    Sec. 3, Act August 10, 1871, 1st Legislative Assembly, p. 31. Also 3d Legislative Assembly, p. 59.
    This last statute, section 3 act of March 29, 1873, extends the time of payment, but has the same provision as to sales. In the Union Pacific Railway case, cited above, the court say at page 525:
    “Even the cloud cast upon his title by a tax under which such a sale could be made would be a grievance which would entitle him to go into a court of equity for relief.”
    And see Chapman’s case, 114 U. S., 171.
    The rigid doctrine, which has sometimes been applied, that the collection of taxes will not be restrained, does not apply to special assessments made by municipal authority, and it was so decided by this court in R. R. and B Co. vs. D. C., 1 Mackey, 217.
    “We are of opinion,” this court say, “that the general language used in the class of cases referred to, applies to taxes levied by the sovereign alone,” and cites and quotes with approval, High on Injunctions, 369 ; State Railway Cases, 2 Otto, 613; Webster vs. Connors, 51 Md., 395.
    In 1873 this court, in Harkness vs. The Board of Public Works, 1st MacA., 121, decided, adopting the language of Ward’s case, 16 N. Y., 519, that when the claim appears valid upon the face of the record, and the defect can only be made to appear by extrinsic evidence, particularly if that evidence depends upon oral testimony, it presents a case for invoking the aid of the court of equity to remove it as a cloud upon the title.
    
      And see Alexander vs. Denison, 2 MacA., 562.
    In Chapman vs. Brewer, supra, decided in 1884, the Supreme Court goes still further, and says that the levy ought not to be enforced because it had no validity as against ihe rights of the plaintiff, and it throws a cloud on his title, leaving only one question tobe considered, to wit: whether the papers supporting the defendant's claim are void on their face.
    Sec. 700 Story’s Eq. Juris., explains what is meant by the papers being void on their face, to wit:
    “ Where the illegality appears on the face of it, so that its nullity can admit of no doubt.”
    Applying that rule to this case, we have a certificate in due form, in strict compliance with statute, made by a competent authority, reciting that so much money is due and that it is a lien on the property, upon which the searchers of title certify in all cases on the production of such a certificate that the property is not free or unincumbered, but is subject to a lien for the specified amount.
    The certificate and assessment are alleged in the bill to be the whole and entire record now remaining in the offices of the defendant, the District of Columbia, in relation to this pretended tax.
    It is, we think, manifest that every fact and circumstance of illegality alleged in this case must be shown, if shown at all, “by extrinsic evidence, and that evidence depends upon oral testimony and upon a discovery by the defendants.”
    If it be urged that the absence from the record of the necessary facts required to show a compliance with the statute proves the proceedings to be void, we reply that the loss of the records and papers from the office only shows that they are not now there, but mislaid; and the presumption which the law indulges, that public officers properly discharge their public duties, tends still further to show that the record was once regular on its face.
    Indeed none of the illegalities complained of appear on the record, but the record, as far as shown, is free from objection.
    
      The following are illustrations of some of the presumptions allowed in favor of the acts done by public officers:
    “A public officer, a collector of taxes, is presumed to have duly assessed and collected the taxes.” Hand vs. Columbia County Supervisors, 31 Hun, 531.
    “The presumption that a public officer has done his duty applies to an assessor of taxes.” Perkins vs. Nugent, 45 Mich., 156.
    “The presumption is in favor of the authority of a city officer to do a particular act which he has done, when it appears within the general scope of the duties peculiar to his office.” Kobs vs. Minneapolis, 22 Minn., 159.
    To the same point. O’Hare vs. Blood, 27 La. Ann., 57.
    The general rule on the subject is stated in Best on Evidence, vol. 2, p. 630, sec. 354:
    “There is a general disposition to uphold official, judicial and other acts, rather than to render them inoperative, and with this view, where there is general evidence of acts having been legally and regularly done, to dispense with proof of circumstances, strictly speaking, necessary to the validity of those acts, and by which they were probably accompanied in most instances.”
    Mr. Cooley states with great care the general doctrine as to the jurisdiction of a court of equity to grant relief in such cases as this, as follows:
    “When, however, the illegality or fatal defect does not appear on the face of the record, but must be showu by evidence aliunde, so that the record would make out a prima facie light in one who should become purchaser, and the evidence to rebut this case may possibly be lost or be unavailable from death of witnesses or other cause, * * * the courts of equity regard the case as coming within their ordinary jurisdiction, and have extended relief on the ground that a cloud on the title existed or was imminent.” Cooley on Taxation, 543, and cases cited.
    There are many cases, however, which ignore the distinction between proceedings void on their face for illegality, and proceedings which, though illegal in fact, are on their face presumptively valid. Such cases, if they do not give relief on the ground of illegality alone, will give it on the ground that any sale of the land under proceedings which assume to he by authority of law, and are conducted hy public officers empowered to make such sales, is such a cloud upon the title of the owner as he ought in equity to be relieved against, if the officers are proceeding unlawfully and have no authority in fact. Cooley on Taxation, 544; Blackwell on Tax Titles, 483; High en Injunctions, sec. 539.
    Cook & Cole and H. E. Davis for defendants:
    It would seem upon the well settled principles of the Supreme Court of the United States and of this court, that there is no jurisdiction in a court of equity to grant the relief prayed for in this bill upon the allegations therein contained. It is a bill praying the cancellation of a tax lien certificate on the ground of its illegality, and therefore is, as complainant contends, a cloud upon his title.
    Now it is not sufficient to allege, in terms, that the certificate creates a cloud upon the title in order to give a court of equity jurisdiction, but the facts set out must show that a cloud does or will exist.
    In Davis vs. The City of Chicago, 11 Wall., 111, the Supreme Court of the United States, speaking of what must appear in the bill in order to give a court of equity jurisdiction on the ground of “ cloud on title,” says:
    
      “ The assessment on the face of the proceedings was valid, and extrinsic evidence would be required to show its invalidity.”
    The same rule was laid down in Ewing vs. City of St. Louis, 5 Wall., 413, and again in the case of Henewinkle vs. Georgetown, 15 Wall., 541, and whenever the question has arisen in subsequent cases that court has held to this distinction. The allegations of the bill are such as show the complainant’s case to be without this rule. All the way through the bill it is charged that the officers acting in the premises, in making the assessment and issuing the certificate, acted without authority of law. Now, the law authorizing the assessment of the tax is referred to in the bill, and the question whether the officers had or had not the authority to assess the tax and issue the certificate, is one of law arising upon an examination of the statutes and comparison of them with the certificate. There is no necessity for going into extrinsic evidence to determine this. The invalidity of the tax is not predicated of any irregularity in the proceedings, but of the want of authority in the officers to do what they did do. If the allegations of the bill are true the certificate issued against the property is of no effect and void, and nothing more is required than an examinaof the law to show this.
   Mr. Justice Merrick

delivered the opinion of the court:

This was a bill filed for the purpose of restraining the holder of a certificate of assessment for a certain special tax, the District of Columbia, and its tax collector, from proceeding to sell the property for the non-payment of that tax. It has been undoubtedly the practice recognized in this jurisdiction, where the mere naked case of the levy of an illegal tax exists, and all the evidences touching the levy and the proceedings for making that levy are of definite record and accessible to the world, that relief in chancery has not been granted against the enforcement of the tax, because there was a complete and perfect remedy at law for the possessor of the property who might always defend himself successfully in an action at law against the enforcement of a tax which, upon its face, was illegal and void. We do not propose to disturb that practice by our present decision.

But the Supreme Court of the United States, in its latest ruling in the case of the Union Pacific Bailroad Company against Cheyenne, reported in 113 U. S., at pages 525, 526, summarily states the jurisdiction of chancery in this class of cases in an extract from Judge Cooley’s work on Taxation, to which they give their unqualified approval as a succinct statement of the rules of law applicable to the intervention of chancery to restrain the collection of an illegal tax. And there they reaffirm the doctrine that while a court of chancery will not intervene where the invalidity of the tax is perfectly apparent on the face of the proceeding, unless other circumstances exist touching the lévy of the tax which would render its enforcement oppressive or would irreparably injure the party, or where the predicament of the case is such that allowing it to remain until enforced or attempted to be enforced would throw a cloud upon the- title of the party, thus creating a serious impediment to his just rights and the quiet enjoyment of his property. Those are the general principles.

Now the application of them to this case is this: There was, according to the allegations of the bill, a levy or an attempt to levy a special tax with a-view to opening and improving an alley in a certain part of this city. The proceedings which were taken in respect of that, it is alleged, were illegal and void, and therefore there was no just tax laid and no just demand against the property. But at the same time it is alleged, as the foundation of the application to th'e jurisdiction of this court, that although those proceedings were irregular, yet so much of them as is preserved, to wit, the certificate in the hands of the holder of the assessment and levy of this tax, is presumptively and upon its face correct and creates a cloud upon the title, and that the intermediate proceedings from the commencement up to this apparently regular burthen upon the property have been by some casualty lost or mislaid, so that the parties are entirely without the necessary evidence as to whether the tax was legal or illegal, and of course without the necessary evidence to protect that property against the unjust assault and claim of the party holding this certificate of special assessment.

A part of his bill, and the gravamen of his bill, is that it is necessary for him, in order that he may have complete relief and redress against the threatened oppression, to have a discovery from the District of Columbia and from its collector and from the holder of the tax, of all the proceedings which were enacted in the progress of the levy, so that there may he a full ascertainment and exact evidence presented accessible to all parties for the purpose of determining whether or not that tax, in point of fact, was regular and lawful.

These allegations present a case for relief -within the broadest principles of chancery jurisdiction, bnsed upon the ground of accident and the necessity for a discovery from the defendant for the protection of the plaintiff in his legal rights. And where the foundation is laid for a discovery in aid of a legal right according to the well settled principles announced by the Supreme Court of the United States (though more expansive of jurisdiction than the doctrine in England), equity will not only grant the discovery, but will proceed upon the discovery to administer relief to the party, so as not to subdivide the subject-matter of controversy and entail a multiplicity of suits and unnecessary expense and delay. Rupee vs. Clark’s Ex’rs, 7 Cranch, 89.

In this case, although the first bill certainly was altogether defective and inartificial and did not present a proper case for redress in chancery, the amended bill states explicitly, as the main ground for applying to chancery, the necessity for a discovery of the evidence which no longer rests in record nor in the proper depositaries for the safe keeping of such muniments of title, and asks for such discovery and for relief consequent upon such discovery.

The court is clearly of opinion that this brings the plainliff’s case within the predicaments stated by Judge Cooley, and presents a proper case for the intervention of chancery in regard to the levying of an illegal tax and for an injunction in aid of his just demands. For these reasons the court reverses the decree below, overrules the demurrer, and remand the case for further proceedings according to the equity that may be developed between the parties.  