
    The Washington Market Company vs. The District of Columbia et al.
    Equity. No. 6486.
    Decided March 8, 1886.
    The Chief Justice and Justices James and Merrick sitting.
    1. The act of Congress incorporating the Washington Market Company authorized it to use and occupy certain real estate, belonging to the United States and situated in the District of Columbia, for ninety-nine years unless its estate should be sooner determined, in the manner provided in the act. The same act also declared that the property of the corporation “ shall be subject to assessment and taxation for all District and municipal purposes,”, and that the ninety-nine year lease “ shall be taken and considered as a determinable fee.” HeM, that for the purposes of assessment and taxation the company’s ownership of this property stood on the same footing with the ownership in fee of other property-holders.
    2. A court of equity will not enjoin against the collection of an excessive tax where there is a remedy at law or remedy specially provided by statute. ' Nor will it, in any event, relieve against its collection, when the complainant has not paid or tendered payment of the amounts admitted to be due.
    STATEMENT OE THE CASE.
    This was a suit in equity-to enjoin tbe enforcement of a tax lien, claimed by the District of Columbia, upon the property of the complainant.
    . The bill was filed in the year 1878 against the District of Columbia, its then Commissioners, and the then treasurer of the United States; and it alleged that the United States was the owner of certain lands in the city of Washington known as Reservation No. 7, fronting on B, Seventh and Ninth streets; that by the act of Congress creating the complainant corporation, it was authorized and empowered to use and occupy said Reservation No. 7 for the period- of ninety-nine years, unless its estate should be sooner determined in manner as in said act provided, whereby, as was claimed, the complainant became a tenant of the United States, possessed of only a limited estate in said Reservation No. 7.
    The bill further alleged that, by virtue of an act of Congress and an act of the legislative assembly of the District of Columbia, the Board of Public Works of the District of Columbia, whose successors the Commissioners of the District are, was authorized to improve the streets of the city of Washington, and it was provided that there should be assessed upon the property adjoining, and to be specially benefited by the improvement, a reasonable proportion of the cost thereof, not exceeding one-third, which sum should be collected as other taxes are collected; and upon default in payment of such assessment a certificate of indebtedness should be issued against the property aforesaid, to bear interest at the rate of ten per centum until paid, which assessment and certificate should remain ánd be a lien upon the property against which it might be issued, and on default in payment of the assessment for one year the property should, on application of the holder of the certificate, be sold and conveyed to the highest bidder at public auction.
    In 1871 the Board of Public Works caused the streets about Reservation No. 7 to be paved,.guttered and otherwise improved, and thereupon assessed the United States as owner of all the property adjoining the said improvement with the full cost thereof, which full cost was paid bj the United States, “as fully appears in a certain official publication entitled, ‘District Affairs, 1874, Governor’s Answer, pages 419-420,’ ” and has never been repaid the United States nor has any demand for repayment been made.
    Notwithstanding, the Board of Public Works afterwards made an assessment against the complainant for the improvement on B street, and on complainant’s refusal to pay the same issued a certificate of indebtedness against the property of complainant in said Reservation No. 7 and deposited the same with the commissioners of the sinking fund, from whom it afterwards passed to the treasurer of the United States, their successor in law; and this certificate and the assessment upon which it is based constitute -an apparent lien upon the property of the complainant. Substantially the same state of things exists with reference to the .improvement of Seventh street.
    
      The bill denounced each of the assessments and certificates as illegal under the circumstances, and excessive in amount; alleged a purpose of the defendants to proceed to sell the complainant’s property for their non-payment notwithstanding; and prayed an injunction against such proposed sale and the nullification and cancellation of the assessments and certificates.
    By the acts of Congress of June 19, 1878, and June 19, 1879, the Commissioners of the District of Columbia were directed to enforce the collection according to existing laws, of all assessments for special improvements, prodded, that upon complaint being made to the Commissioners within a time specified, and by the parties interested, that their assessments were “ erroneous or excessive,” the Commissioners should revise and correct such erroneous or excessive assessment so complained of; and in case the same were found to be erroneous or excessive, the Commissioners were ■required to issue to the person entitled a drawback certificate for the amount thereof.
    The District of Columbia demurred to the bill. The other defendants did not appear or answer, and a pro confesso was taken against them, which was afterwards made absolute, on the 2d day of April, 1879. On hearing of the bill and the demurrer of the District of Columbia, on the 6th day of October, 1885, the demurrer was sustained and the bill dismissed. The complainant appealed.
    Francis Miller and Henry E. Davis for the District of Columbia:
    The act of Congress creating the complainant corporation by section 13 provides: “That the real estate herein described (Reservation No. 7) is hereby vested in the said corporation for and during the said term of ninety-nine years, or until a forfeiture of its rights and privileges by a breach of the conditions herein imposed on said company, and said estate shall be taken and considered as a determinable fee. The real and personal property of said corporation shall be subject to assessment and taxation for all District and municipal purposes, in the same manner and to the same extent that like property in the city of Washington owned and possessed by individuals is liable to assessment and taxation.” This leaves no room for doubt as to what it means.
    The sole ground on which the complainant bases its claim that the assessments complained of are entirely illegal is, that the United States has paid the whole amount assessed in the first instance. But the official publication cited by the bill does not show such to be the fact. Moreover, the assessment against the United States, if an assessment was beyond the power of the Board of Public Works and void and the only valid assessment in the premises, was that against the complainant.
    But even if such assessment against the United States was paid by it that does not relieve the complainant. That is a matter wholly between the United States and the District of Columbia. District of Columbia vs. W. & G. R. R. Co., 18 W. L. Rep., 793.
    As to the excessive amounts of the assessments alleged, the right of appeal therefrom was twice given by Congress (act of June 19, 1878; act of June 27, 1879); and the complainant having failed to avail itself of such right, it cannot now be heard to complain in another tribunal than that offered it.
    And the bill does not tender the admitted proper amount of the assessments. This closes the door of equity to the complainant in the premises. State Railroad Tax Cases, 92 U. S., 575.
    The defendants, against whom the pro confesso was made, were not necessary parties. The District is the real party in interest, and the bill was properly dismissed generally on the sustaining of the demurrer.
    William Birney for complainant:
    1. The tax lien certificates were improperly issued.
    The assessments were to be upon “the property adjoining.” The United States, as owner of the fee, was entitled to pay the assessments, and having paid them the lien was thereby extinguished. Cooley on Taxation, 322, 323, and cases; Addison on Contracts, § 338, and cases; Abbott’s Trial Ev., 800, and cases; Bennett vs. Hunter, 9 Wall., 326; Tacey vs. Irwin, 18 Wall., 551; Alexander vs. Dennison, 2 Mac A., 562.
    2. The final decree, if granted at all, should have , been limited in its terms to the defendant demurring.
    The District Commissioners, successors to the Board of Public Works, and the treasurer of the United States, successor to the sinking fund commissioners, are the real defendants. The bill makes the District a formal party only and seeks no relief against it.
   Mr. Justice James

delivered delivered the opinion of the court.

The Washington Market Company filed its bill, alleging that the United States was first assessed for the cost of the improvement made along B street from Tth to 9th, in front of the property leased by the United States to the market company, and that the whole cost of that work was paid by the United States, upon assessments presented by the Board of Public Works, the predecessors, as it is said, of the Commissioners of the District of Columbia; that afterwards the market company was assessed, not for the whole amount, but for a part of the cost of the same work. It was claimed that the demurrer to the bill admitted that the full cost had been .since paid for this work by the United States, and that that payment extinguished all liability of everybody for the work.

The bill, however, in stating that the whole cost had been paid, referred to what was known as the “ governor’s answer,” naming the pages, not as evidence, in the language of counsel for the complainant, but really as a part of the allegations of the bill. And when we turn to the report or answer so referred to, we do not find that the United States was really charged there with ever paying the full cost of the work on B street from 6th to 14th street, but that one of the items shows that only five-sixths of the cost was charged to the United States, and that a balance corresponding exactly with the amount now charged to the complainant was left unpaid.

It is true that it does not appear from that table or statement of account, thus referred to and incorporated in the bill, just where that pavement lay, whether it lay in front of the property from 1th to 9th streets or not. But it appears that the full cost of the work was not charged to the United States, so that the bill does not show, taking the incorporated portion of the “governor’s answer,” together with the general allegation of the bill, a case of payment in satisfaction of the full costs by the United States, whatever the effect of that might have been had it been proved.

It is also objected that these proceedings doubled the assessments ; that the assessing power was limited to but one assessment, and when that was done the power was exhausted; consequently the subsequent assessment was a nullity. But from what we have said there does not appear to have been two assessments for the same work, and the objection therefore must fail because based upon an erroneous statement of fact.

The third ground of complaint was that the complainant company was not liable to be assessed upon its leasehold; that the law subjecting the adjoining property to assessment, had reference to the ownership in fee, and not to a leasehold. But the statute declaring that the property of this corporation “shall be subject to assessment and taxation for all District and municipal purposes,” also declares that this ninety-nine years lease “shall be taken and considered as a determinable fee.” The meaning of that is, that fm^TEe^)fifpMekbra^sFs"smenTliñd"taxation the company’s ownership in this property stands on the same footing with the ownership in fee of all property adjoining the line of improvement. It does not matter what the case may be at common law, it is enough that the legislature has said that for the purposes of taxation (for we take the two acts together) it shall be regarded as that class of property which is assessable and subject to assessment.

This corporation, then, holds a property liable to be assessed, and liable to be sold in case of non-payment, where improvements are made along this street, and as it appears that the assessment made against it was not for the work which was paid for by the United States — in other words that there was no double assessment — the debt is consequently not discharged. It is true enough that where a stranger comes in and undertakes to discharge the very debt of a debtor it is discharged; so, too, where a stranger makes a payment of taxes for the purpose of satisfying them, they are satisfied. But that does not appear to be, in matter of fact, the case before us.

The result, then, is that this company is liable for these taxes. Nevertheless, we are asked, even in that event, to restrain the collection of them on the ground that they were excessive. Well, if the tax is excessive there is a remedy at law, and, in addition, there was a special remedy provided by the statute for having the excess corrected. The complainant cannot, therefore, come into a court of equity for an injunction.

But whatever its rights may be in that respect, it certainly cannot come here and ask us to enjoin against the whole tax without having paid that part which it admits would be due, if anything at all is due. We have held that something appears to be due, and it admits what the amount of it would be, if it be due at all. Certainly, then, it cannot seek equitable relief here without having paid what is due — what is in fact admitted to be due. We think the demurrer on the part of the District should be sustained.

A certain embarrassment, however, was thought to be presented to us in the state of the record. The Commissioners then holding office did not answer, and decrees were taken against them pro confesso, and afterwards those decrees were made absolute. So that the persons who represented the District and whose business it was to see to the collection of this tax, had their hands tied up by an absolute decree while the District itself stood demurring to the bill. It was said that the District is an immaterial party and might have been left out. But the District is the very party whose business it is to collect these taxes, although they may be handed over and put into the National Treasury. It is the very party to resist this bill. The Commissioners are but the instrumentality. So that we find no embarrassment in the fact that those decrees were made absolute. That was a part of the law of the case, and the case was in court completely, noth withstanding those decrees were made absolute against those particular persons. It is true that the decrees went further and enjoined their successors in office, but the case is in our hands and cannot be taken out of them by any such accident as that. It strikes us as probably an oversight that those decrees ever came to be made absolute in such a state of the case, and it would seem to suggest to us the propriety of watching very closely in regard to whom we should make a decree' pro confesso absolute.

We affirm the decree below sustaining the demurrer and dismissing the bill.  