Craighill v. Van Riswick

Mr. Justice Morris delivered the opinion of the Court: 1. The question of the jurisdiction of a court of equity to entertain jurisdiction of a suit of this kind, in view of the provisions of section 3224 of the Revised Statutes of the United States, lies at the threshold of this case, and cannot be ignored. It has not, in fact, been ignored in argument by counsel on either side, although both sides fully concur in the desire that the jurisdiction should be sustained. The appellees, having appealed to the jurisdiction as complainants, very naturally are willing to abide by it; and the appellants, who have desired to be guided by the advice of the court in the premises, and who might possibly, in view of their peculiar functions, be entitled to apply to a court of equity for guidance in the performance of their rather difficult duty, are equally solicitous for some authoritative exposition of the doubtful provisions of the law with regard to that duty. But this concurrence of desire cannot give jurisdiction to the court of equity, unless it can be shown otherwise to exist. We think, however, that this is a case proper for the. cognizance of a court of ecpiity. Section 3224 of the Revised Statutes provides that “ no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.” This section was taken from the tenth section of the act of Congress of March 2, 1867 (14 Stat. 475), which was an amendment of the internal revenue act of July 13, 1866 (14 Stat. 98), itself an amendment of the acts of June 30, 1864 (15 Stat. 223), and March 3, 1865 (13 Stat. 4Ó9); and it is found in the revision among the provisions for the collection of the internal revenue of the United States, where special — 207 — provision is made for the recovery of. taxes wrongfully levied. This would seem to indicate that it was not intended to apply to cases of special assessment, like that now before us, where it is not a question of the revenues of the United States, but to the matter of the ordinary taxes raised and intended for the support of the Government. A special assessment, it is true, is a tax, in the general sense of the term; but it is not such a tax as was contemplated by the statute that has been cited. The statute seems to be no more than what was already the doctrine of equity, ever since the decision in the case of Mooers v. Smedley, 6 Johns. Ch. 28, by Chancellor Kent. A court of equity will not interfere with the collection of taxes simply on the ground that the taxes are illegal. To warrant' the intervention of equity, as was said by the Supreme Court of the United States, in the case of Dows v. Chicago, 11 Wall. 109, by Mr. Justice Field, “there must exist in addition special circumstances bringing the case under some recognized head of equity jurisdiction, such as that the enforcement of the tax would lead to a multiplicity of suits, or produce irreparable injury, or, where the property is real estate, throw a cloud upon the title of the complainant.” But it is well settled that, where there are such special circumstances, equity will intervene, and the statute cited is no bar to the intervention. In the case of the Union Pacific Railway Company v. Cheyenne, 113 U. S. 516, 525, the Supreme Court of the United States, by Mr. Justice Bradley, said: “It. cannot be denied that bills in equity to restrain the collection of taxes illegally imposed have frequently been sustained. But it is well settled that there ought to be some equitable ground for relief besides the mere illegality of the tax; for it must be presumed that the law furnishes a remedy for illegal taxation. It often happens, however, that the case is such that the person illegally taxed would suffer irremediable damage, or be subject to vexatious litigation, if he were compelled to resort to his legal remedy — 208 — alone. For example, if the legal remedy consisted only of an action to recover back the money after it had been collected by distress and sale of the taxpayer’s lands, the loss of his freehold by means of a tax sale would be a mischief hard to be remedied. Even the cloud cast upon his title by a tax under which a sale could be made would be a grievance which would entitle him to go into a court of equity for relief.” In the case of Lyon v. Alley, 130 U. S. 177, 187, which went up from this District, the same high tribunal, speaking by Mr. Justice Lamar, said: “ It is a well settled doctrine of this court that equity will not interpose to arrest the proceedings for the collection of a tax upon the sole ground of its illegality. It is equally well settled by the decisions of this court and the State. courts that, after the land has been sold and a conveyance of some sort made to the purchaser, courts of equity have inherent jurisdiction to give relief to the owner against vexatious litigation and threatened injury to the market value of the land, by removing the cloud which such illegal sale, and the illegal claim arising from it, may cast upon the title, and in such case of damage, either existing or apprehended, equity will interpose for relief, even during the progress of the proceedings before the sale.” To the same effect are the more recent cases of Gage v. Kaufman, 133 U. S. 471, and Rich v. Braxton, 158 U. S. 375, 405. The removal of a cloud from the title to land is, therefore, a well recognized ground of equity jurisdiction, when such cloud is the result of illegal taxation. The prevention of such a cloud is equally recognized. Prevention and removal are equally within the domain of the remedial processes of equity. Very applicable to the present, as well as to another aspect of the question, is what the Supreme Court of the United States, by Mr. Justice Harlan, said in the case of Rich v. Braxton, supra: — 209 — “ It must be remembered that ‘ it is not enough that there is a remedy at law; it must be plain and adequate, or, in other words, as practical and efficient to the ends of justice and its prompt administration as the remedy in equity.’ Boyce v. Grundy, 3 Pet. 210, 215; Drexel v. Berney, 122 U. S. 241; Allen v. Hanks, 136 U. S. 300, 311. And the applicability of the rule depends upon the circumstances of each case. Watson v. Sutherland, 5 Wall. 74, 79. In the case now before us it cannot be said that the invalidity of the deeds which the plaintiffs seek to have can-celled appears on their face. It is not clear that their invalidity can be placed beyond question or doubt without evidence dehors those deeds. “ Besides, by the laws of West Virginia, the tax deeds under which the defendants claim ar& prima facie evidence against the owner or owners, legal or equitable, of the real estate at the time it was sold, his or their heirs or assigns, and all other persons who might have redeemed the same within .the time prescribed by law, and conclusive evidence against all other persons that the material facts recited in them are true. Code of W. Va. 1868, ch. 31, sec. 29, &c., Mr. Pomeroy, in his Treatise on Equity Jurisprudence, while recognizing it to be the general rule, established by the weight of authority, that equity will not interfere to remove a cloud from title, where the instrument or proceeding constituting the alleged cloud is absolutely void on its face, so that no intrinsic evidence is necessary to show its invalidity,’ or ‘ where the instrument or proceeding is not thus void on its face, but the party claiming, in order to enforce it, must necessarily offer evidence which will inevitably show its invalidity and destroy its efficacy’ — which doctrine, he says often operates to produce a denial of justice — correctly says, that equity will interfere, where deeds, certificates, and other instruments given on sales for taxes are máde by statute prima fade evidence of the' regularity of proceedings connected with the assessments and.sales. 3 Pomeroy’s Eq. Jur., sec. — 210 — 1399, and note 1, p. 437, and authorities there cited. And this view is sustained by numerous authorities. Huntington v. Central Pacific Railroad, 2 Sawyer, 503, 514; Allen v. City of Buffalo, 39 N. Y. 386, 390; Palmer v. Rich, 12 Mich. 414, 419; Marquette, H & O. Railroad Co. v. Marquette, 35 Mich. 504; Milwaukee Iron Co. v. Town of Hubbard, 29 Wis. 51, 58; Weller v. St. Paul, 5 Minn. 95; Pixley v. Huggins, 15 Cal. 127; Tilton v. O. C. M. Railroad Co., 3 Sawyer, 22. See also 2 Blackwell on Tax Titles, sec. 1066, and authorities cited. In the present case there are no defects of a controlling character that distinctly appear on the face of the tax deeds under which the defendants claim title. And as those deeds are made by a statute prima facie evidence of title in the grantees named in them, and as, therefore, the plaintiffs, if sued in ejectment by the defendants, would be compelled, in order to defeat a recovery against them, to resort to extrinsic evidence in support of their title, the deeds in question constitute a cloud upon that title, to remove which the plaintiffs may rightfully invoke the aid of a court of equity.” In the case now before us, the statute, under which the Park commissioners are acting, expressly makes their assessment a lien upon the land assessed, and precludes inquiry into the regularity or validity of the antecedent proceedings, precisely as in the case of Rich v. Braxton, and their action, therefore, necessarily operates to cast a cloud upon the property of the complainants, in respect of which they can have adequate relief only in equity. It is upon the ground that, by the assessment made and threatened to be enforced by the commissioners, a cloud would be cast upon their title to their real estate, and they would be subjected to vexatious litigation and irreparable injury, they expressly seek in their amended and supplemental bill the interposition of a court of equity to relieve them from what is alleged to be the imposition of illegal taxation. And we think, upon the authorities cited, and upon the general principles of equity, that they are entitled to it. — 211 — It may be that they should have waited until the commissioners had definitely fixed the amount of the assessment upon their property, and had thereby completed the assessment. But this probably is a matter which the commissioners could have waived, as -they have actually waived it in their brief and in open court; and it is not apparent, under the peculiar circumstances of this case, that any good purpose would have been subserved by further delay. The commissioners had definitely announced their determination to assess the property in question ; in order to fix . the amount of the assessment, they required testimony to be taken, which might have involved much delay and expense ; and the testimony, when taken, would not have enlightened in any manner the question now at issue, which merely concerns the validity of the statute under which they are proceeding. The determination of the specific amount of the assessment would not have altered the record, or changed in any manner the rights of parties, so far as they are to be determined by this suit. The question now before us is not the amount of the assessment, but the right of the commissioners to make any assessment. It may be that this question of jurisdiction should be considered in another aspect also. The power conferred by the statute upon the Supreme Court of the District of Columbia “to hear and determine all matters connected with said assessment,” might perhaps be regarded as a special jurisdiction to be exercised only under the conditions and in the mode prescribed by the statute, and without appeal to this court, since no appeal is expressly provided by the statute itself. But courts of general jurisdiction, and especially courts of equity, are not ousted of their jurisdiction, or of any part of it, except by positive legislation absolutely inconsistent with its continued exercise. Sedgwick on Statutory and Constitutional Law, ch. 4 and 8, and cases cited; Rhode Island v. Massachusetts, 12 Pet. 657. The prevention and removal of clouds upon title are sub — 212 — jects of the' general equity jurisdiction ; and the statute establishing the Rock Creek Park does not purport in the remotest degree to interfere with that or any other branch of equity. When the Supreme Court of the District of Columbia, whether as a court or as an appellate board of assessment, was given the authority referred to here “to hear and determine all matters connected with said assessment,” it certainly was not contemplated that one of those matters would be the power of Congress to pass that act itself. And while a court of limited jurisdiction, a board of commissioners, an executive officer, or a" private citizen, might decline to exercise powers conferred by a statute which is believed to be void, and would necessarily haye to pass upon the question of the validity of the authority sought tobe conferred in order to reáchthe conclusion, yet undoubtedly the attempt to confer such authority cannot in general deprive the courts of general jurisdiction of their right in cases within their cognizance to inquire into the validity of the attempt. The right of the citizens to have recourse to the courts of this country ought not to be construed to be taken away by indirection, where the protection of those courts is the most needed. We have virtually so held in the cases of the District of Columbia v. Prospect Hill Cemetery and others (5 App. D. C. 497), where one of the consolidated suits was a bill in equity to restrain the enforcement of an unconstitutional or invalid statute, and where we affirmed the decision of the court below awarding an injunction in the case. In the same case, we sustained without question the appellate jurisdiction of this court, which would have been ousted as well'as the jurisdiction of equity, if the Special jurisdiction there conferred on the Supreme Court .of the District of Columbia were of the character to exclude the exercise of the general jurisdiction ; for that also, like the present, was a case of special statutory authority. The case of Shoemaker v. United States, 147 U. S. 282, necessarily affirms the same doctrine for that was a case growing out of this — 213 — very same statute; and the Supreme Court of the United States there exercised without question the right of appeal from a judgment of the Supreme Court of the District of Columbia rendered in proceedings instituted under the same special jurisdiction. We do not mean to hold that a special jurisdiction is not to be exercised specially in accordance with the statute; but that the special jurisdiction here conferred on the Supreme Court of the District of Columbia does not preclude recourse to equity in proper cases of equity cognizance and does not take away the appellate jurisdiction of this court. Ex parte Zellner, 9 Wall. 244. If we had any doubt about the jurisdiction of equity in this case, with the consequent right of appeal to this court, we would, be disposed to resolve the doubt in favor of the jurisdiction, in view of the fact that, under the decisions in the cases of Shoemaker v. United States and the District of Columbia v. Prospect Hill Cemetery, the same precise question that is now raised could be raised by almost identical pleadings under an application of the Park commissioners for a confirmation of their assessment. And we think that it is of no great consequence in which' way the question is presented, and that the case is one in which we should look rather to the substance than the form. We are of opinion that this case is one proper, for the cognizance of a court of equity. 2.. With reference to the merits of the case, counsel for the appellants. in their brief raise two questions, broad enough in their scope, and of very great importance: X, Whether Congress has power to impose taxes upon land in • the District of Columbia by way of assessment for special benefits accruing to such land by reason of the expenditure of public funds for works of public utility ; and, 2. Whether, if such power exists, the act of September 27, 1S90, providing for the acquisition of land for the Rock Creek Park and the levy of assessments upon other lands, specially benefited -by its establishment, is a valid exercise of the power. And the argument on behalf of the appellants is directed to — 214 — show that both questions should be answered in the affirmative. The extent of the jurisdiction of the Congress of the United States over the District of Columbia must be regarded as quite well settled. The District of Columbia was established for the purposes of the Federal Union, and not for any purposes of its own; and Congress acts therein as the legislature of the Union, but with exclusive jurisdiction extending to all legitimate subjects of legislation. Cohens v. Virginia, 6 Wheat. 264; Loughborough v. Blake, 5 Wheat. 317; Willard v. Presbury, 14 Wall. 676; Mattingly v. District of Columbia, 97 U. S. 690. But that this exclusive jurisdiction is limited and restricted by the Federal Constitution and the amendments thereof, and by the fundamental principles of right and justice recognized by that Constitution, is equally beyond question. Story on the Constitution, sec. 1234; Callan v. Wilson, 127 U. S. 640. There is no place anywhere in our system of government, State or Federal, for the theory of legislative omnipotence’ claimed to appertain to the English Parliament, But except in so far as it is thus restricted by the fundamental law, the legislative authority of .Congress over the District of Columbia is supreme and unlimited. Among the ordinary and essential attributes of sovereignty and. subjects of legislation is the power of taxation, which, as Mr. Cooley says in his Treatise on Constitutional Law, ch. 4, pi 55, is “ unlimited in its range as to the kind of taxes that shall be laid, or the subjects upon which it shall be imposed.” And yet this great and vast power of taxation is rigidly limited in the one respect that it must be uniform and equal in its operation, must be levied for public not for private purposes, and must be laid according to-some definite and positive rule of apportionment. Taxes may be laid upon lands, upon personal property, upon occupations, upon special classes of property, or upon special occupations, or upon persons ; but within the scope of the selection the tax must be uniform. One man cannot be — 215 — taxed more in proportion than another. These are well established principles of the law of taxation that require no citation of authorities to support them. It may be that this principle of uniformity is not secured for the District of Columbia, with regard to the power of exclusive legislation over it that is vested in Congress by the requirement of the Eighth Section of the First Article of the Constitution, that “ all duties, imposts, and excises shall be uniform throughout the United States for that may well be construed to refer to taxes levied by Congress over the whole territory of the Union. But it is abundantly secured by the provision in the Fifth Amendment to the Constitution that “no person shall be deprived of life, liberty or property without due process of law: nor shall private property be taken for public use without just compensation.” For private property would be taken for public use without any compensation, and due process of law would absolutely be wanting in any system of taxation that was not uniform in its operations — not necessarily uniform in its results or operating to do exact justice, but free from undue discrimination as to persons. Whether taxation by way of special assessment is free from the objection of want of uniformity is open to grave doubt. The practice of levying special assessments seems to be now very generally established throughout our country by legislative and municipal action, and to have received the sanction of courts and of text-writers, yet evidently not without some misgivings as to the correctness in principle of the theoiy upon which the practice is based. See Cooley on Taxation, pp. 416, 417. With all due respect to the public sentiment in favor of the theory of special assessments and to the great preponderance of judicial decision by which it has been sustained, we are disposed to think that a system, to which a large part of the municipal corruption that exists in our country can be traced, and which leads to a result so absurd as that evidenced in the act of Congress now under consideration, must be radically — 216 — vicious and unjust. We think that it is vicious, because it is arbitrary; all things arbitrary in the administration of government are vicious. We think that it is unjust, because it compels the individual citizen in many cases, probably in most cases, to pay more than his just share of. the common burden for the public good. Special assessments are levied arbitrarily and without any rule having a fixed foundation in justice. They are usually authorized in connection with some unusual scheme of public improvement like this Rock Creek Park enterprise in the present instance. Generally they do not form part of any permanent or well-established scheme of taxation; and they vary in their scope and terms with every varying enterprise to the aid of which they are applied. Sometimes one-fourth, sometimes one-third, sometimes one-half, and sometimes even two-thirds or three-fourths of the cost of a public improvement is levied under the theory of special assessment upon adjoining owners supposed to be benefited specially by such public improvement. And if any part of the cost may so be assessed, the whole may be. Indeed, in the very case before us, it is sought to cast the whole and entire cost of the enterprise upon the adjoining owners; and the theory-is carried to its extreme extent, a conclusion that would make it ludicrous if it were not so grossly oppressive. But if these works, for which special assessments are sought to be levied, are public works, the public alone should pay for them. If they are not public works, the public authorities have no right to undertake them. We believe that there is no middle ground, of partnership in such work between the public and the individual citizen; and that compulsory payment therefor by the individual citizen is unjust, when perhaps he has not requested the improvement and may even have antagonized it. The system grew out of early legislation, m which, when the opening of streets or other public enterprises was somewhat in advance of the requirements or of the resources of a municipality or community, and private individuals, specially inter — 217 — ested, and to whom the enterprise would be an immediate benefit, requested the work, compliance with their request was authorized upon their assumption of a share of the expense. But in those cases the special assessment was the result of a contract, and w'a's therefore never compulsory. We are aware that there is very great plausibility in the theory of special assessment. At first sight it seems to be exceedingly just and equitable that one whose property has* been enhanced in value by. its proximity to a public im-.' provement, should- contribute to the cost of that improvement in proportion to the amount of benefit received by his property. But the proposition is more plausible than sound. Apart from the incongruity of benefiting one without his consent and possibly against his will and then levying a contribution upon him for that in which he has had no voice, and assuming that the so-called benefits are not illusory and intangible, the fair and just contribution of the citizen is secured without arbitrary exaction by the increased assessment of his property for general taxation and the increased returns therefrom to the general fund. Moreover, it is not quite apparent, upon general principles of. justice, why, when a public improvement is located in a certain neighborhood, without inducement by adjoining owners for its location there, peremptory demand should then be made upon those owners to hand over to the public a sum of money equivalent to the supposed enhancement of their property in value by reason of tire location of the public improvement. A private individual, who improves a neighborhood by building therein,- could not with much grace support a demand upon his neighbors for contribution to the cost of his building, on the ground that their property has been enhanced in value by his action; and there does not seem to be any better reason for -the public to do so. Nor, when contrary conditions arise, is there any rule of law or equity that requires the public to compensate an adjoining owner, ■when his property has been depreciated in value by the location in his neighborhood of a jail, or a pest-house, or any — 218 — other similar undesirable structure. The sovereign, or a municipality as the representative of the sovereign, should not shield itself in the one case behind the theory that the State can do no wrong, and yet claim in the other case that there is natural equity in its favor. But while we have deemed it not improper thus strongly to express our views upon the substantial merits of the theory of special assessment, it must be admitted, as. we have already stated, that the great preponderance of judicial authority is in favor of sustaining the validity of legislative action which imposes such assessments. In our own jurisdiction the Supreme Court of the United States, in the case of Mattingly v. District of Columbia, 97 U. S. 687, has sustained the .theory, upon the ground merely of the great current of judicial decision to that effect; and to that authority, of course, we must bow. It is not necessary for us in the present case to base our decision upon the hardship of special assessments, or upon the supposed unsoundness of the theory upon which they are sustained. The theory has its limitations and restrictions, as has the power of general taxation; and we think that it will be found, upon a closer analysis of the authorities, at all events of the best authorities upon the subject, that the theory has been applied only when some easement or appurtenance has been added to the lands of the person assessed, or when some advantage has been given to him which he did not possess before, such generally as the improvement of a street for access to his property, or the construction of a sewer for the drainage of his land, or some similar work which he could and should have done for himself, if it were not- that such work by a private individual for obvious reasons would be impracticable. The Rock Creek Park, authorized by the statute now before us, is nothing of that kind. It is something, as expressly declared in the act, “ perpetually dedicated and set apart as a public park or pleasure ground for the benefit and enjoyment of the people of the United States.” It is a public enterprise, therefore, for a purely public purpose, and — 219 — for the general benefit of all the people of the Union; and assuming that, inasmuch as it is located in the District of Columbia, and is of special benefit to the District of Columbia, Congress can properly impose a special assessment on the District of Columbia to defray a part of its expense, it does not' follow that it can go farther and impose the whole cost or any part of it upon any individual or number of individuals in the neighborhood whom it pleases to select for the purpose of assessment Recognized territorial subdivisions, such as counties, townships, municipalities, may undoubtedly be specially assessed under the authority of the State for a share of the cost of works of public improvement located within their borders ; for the reason that such territorial organizations are only creatures of the State for governmental purposes and are wholly within the control of the State; and what we have heretofore said in reference to special assessments in general has no application to them. This much we understand to have been decided in the case of Mobile v. Kimball, 102 U. S. 691; and this also is the extent to which we understand the intimation to go of the Supreme Court of the United States in the case already cited of Shoemaker v. United States, 147 U. S. 282. Nor do we understand that any different principle is laid down by any of the decisions cited in the latter case. But individual citizens cannot thus be selected for assessment, nor can their property be constituted a special taxing district for the occasion.. Mr. Justice Cox, in his excellent opinion in this case, well said: When it comes to assessing individuals for public im> provements, the question seems to be different. Suppose, for example, a court-house or a public monument or post-office should be erected in a town and the private property of individuals adjacent to it should be specially taxed for the supposed greater convenience which they enjoy of access to the court-house or postoffice, or the privilege of gazing upon the-public monument, it would at once be seen that great. injustice had been done. It does seem to me — 220 — that this would be a system of taxation which would not conform to the spirit of our Constitution. It might as well have been held proper to assess the buildings opposite this court-house for the pleasure of gazing upon the Lincoln monument, if that monument had been erected by public authority.” In this we fully concur. We think that it fairly and justly expresses the law on the subject. The sixth section of the act of Congress of February 27, 1890, establishing the Rock Creek Park, so far as it can possibly be construed to have a meaning,- has for its sole object and purpose the imposition of a special assessment on the lands adjoining the park for the purpose of paying the cost and expense of the park. In fact, it seems to have been .contemplated that such special assessment might pay the whole cost and expense of the park, including even the compensation payable to the commissioners, and leave a surplus' to be. expended in the improvement of the grounds. More than that — the section- is capable of a construction that would make the enterprise a speculation of most extraordinary and remarkable profit to the United States ; for besides the fact that under it an assessment would be possible that would secure sufficient money to replace in the Treasury of the United States the whole amount of $1,200,000 that was expended in the acquisition of the land for the park, there is the provision that the District of Columbia as a municipality must in any event refund one-half the amount, or $600,000, to the Treasury. So that it would be quite feasible under the act for the United States to receive $1,800,000 by a levy ot forced contribution to reimburse them for their expenditure of $1,200,000. Such a result would be shocking to our sense of natural justice, to all our ideas of constitutional guaranty, and to our whole theory of governmental propriety. An enactment that necessarily leads to this conclusion we are compelled to regard as a violation of-the Constitution of the United States. 3. But proceeding one step farther, we find that not only — 221 — is this section violative of the fundamental law of the land, but it is likewise so hopelessly inconsistent and meaningless that it is impossible to determine its sense with any certainty ; and consequently impossible to execute it with any propriety, even if it were not affected with the fatal taint of unconstitutionality. It is very evident that this section was passed without much, if any, consideration by Congress. It does not reflect the legislative mind or express the legislative intention, and it is-so hopelessly involved in palpable inconsistency and a maze of meaningless verbiage that it is impossible to apply to it any of the canons of construction that a court is authorized to apply in such cases. Counsel for the appellants virtually ask us so to reconstruct the phraseology of the enactment as to give it sense and meaning. Courts have gone very far, where the legislative intention is clear, to disregard words and terms that were evidently not contemplated to be in the statute, in some cases even converting negative phrases into positive phrases, and the reverse (Chapman v. State, 16 Tex. App, 78); but in all such cases the meaning intended by the legislature must be clear from the context. Not only is the meaning in the present case not clear: it is difficult, if not impossible to deduce any meaning from the language employed. We can add nothing to the excellent analysis of the section made by Mr. Justice Cox, in his opinion; which appears in the record in the case; and we can do no better than concur in that opinion and embody it in our own.* One feature of that opinion we may emphasize. One clause of section 6 seems to authorize assessment by the commissioners for benefits accruing from the location and improvement of the park; another clause for benefits accruing from the location alone. It is conceded' that there has been absolutely no improvement whatever of the park thus far, and that the only change is in the transfer of title to the United'States. The only power to assess'is, therefore, in the clause which authorizes assessment for location, if it — 222 — does, in fact, so authorize; and here again it is conceded that there has been no change whatever from previous conditions. Adjacent owners, then, are to be assessed .because the United States have taken title to a tract of land adjoining them, in order to lessen the burden of expense to the United States. To state the proposition is to demonstrate its gross absurdity. We think that the decree of the Supreme Court of the District of Columbia in the premises was right; and that decree must be affirmed with costs. Footnotes [*] For opinion of Mr. Justice Cox, see page 194- — Reporter.