#### BECK et al., Appellants, *v.*HOLLAND et al., Respondents.

(No. 1,627.)

(Submitted November 19, 1903.

Decided December 4, 1903.)

*Taxation*— *Cities*— *Assessment for Improvements*— Basis— *Benefit Buie*— Frontage *Buie*— Omission *of Certain Property from Levy*— Ownership *of Alley*— Certificate *of. Assessment*— Presumption—Pleading.

1. Under the express provisions of Code of Civil Procedure, Section 3266, Subdivision 15, it is presumed, in the absence of any showing* to the contrary, that city officials did not certify an assessment prematurely to the county officials, but performed their duty regularly.

2. In the absence of fraud, or such gross mistake as to preclude sound .judgment, the determination of a city council as to what property is specially benefited by an improvement ordered is conclusive for the purpose of assessment to pay for it.

3. The omission from the levy of any property in an improvement district, to which the principle of the assessment applies, invalidates the entire assessment.

4. Though Comp. St. 1887, Fifth Div., c. 22, Sec. 428, provides for levy on property specially benefited to pay for an improvement, an allegation in the complaint in an action to enjoin a sale for the collection of an assessment that the council adopted the frontage- rule in making the levy is insufficient unless it also states that the benefit to plaintiffs’ property is not proportional to their tax.

5. One cannot set aside an assessment against him to pay for opening an alley on the ground that the land does not belong to the city, when he claims no right or interest in it.

On rehearing.

Affirmed.

STATEMENT OE TJIE CASE.

The appeal in this action was heretofore dismissed (28 Mont. 460, *12*Pae. 972), but upon application was reinstated, the appellants! granted leave to- file an amended transcript, and the cause then heard on its merits.

The action was brought to restrain the countyi treasurer of Silver Bow county from selling certain real estate for alleged delingnent taxes. The complaint alleges that prior to July 12, 1893, the city of Butte attempted to lay out and establish'an *235alleyway through Mock *31,*townsite of Butte, extending from Bark street to Galena, street; that for the purpose of meeting and defraying the expense incident to such improvement the city council, on July 12, 1893, adopted a resolution levying a tax upon certain property in the city of Butte, the city council then determining that the property on which the tax or assessment was. levied was benefited by the opening of the alleyway. After designating the property affected by the levy and the amount of taxes sought to- be collected, the complaint alleges that the city hadi no right or title to the alleyway, the same being owned by private individuals; that in making the levy the city council omitted from the assessment other property situated in the same district and locality as the property assessed, and which property so omitted was benefited by the alleged opening of the alley, and should have 'borne its proportion of the expenses; that the city council adopted a frontage rule of valuation as a basis for determining the taxes to be assessed against tire property; that the lots, or parcels of land upon which the tax was levied were of an unequal depth and area., and the adop^ tion of the frontage rule resulted in omitting from, the assessment certain pieces of property which should have been taxed; that the plaintiffs appeared before the city council sitting as a board of equalization, and objected to such assessment; that on or about August 12, 1893, the city treasurer declared the several amounts, due from) the plaintiffs on account of such assessment delinquent, and certified a list of the names of the owners so assessed, including these plaintiffs, together with a description of the property and the amounts due thereon, to the county clerk of Silver Bow county, witm thereafter delivered the same to the county treasurer; and that the treasurer threatens to sell the property of these plaintiffs to satisfy such delinquent taxes, and, unless restrained, will do so. The prayer) is for an injunction restraining such sale. To this complaint the defendants interposed a general demurrer, which was, sustained, and, the plaintiffs declining to amend, judgment for costs in favor of the defendants was entered, and from that judgment the plaintiffs appeal.

*236*Mr. B. 8. Thresher,*and *Messrs. McBride & McBride,*for Appellants.

Whenever am attempt is made, to charge or devest the estate of a. citizen by statutory modes, the proceedings must strictly follow! the steps of the statute, or the attempt will fail. *(Smith*v. *Davis,*30 Oal. 536; *Bensley*v. *Mountain Lake Go.,*13 Oal. 306; *Curran*v. *Shattuck,*24 Oal. 427; *Stanford*v. *Worn,*27 C'al. 171; *Haskell*v. *Bartlett et al.,*34 Oal. 281; *Himmelmann*v. *Oliver,*34 Oal. 247; *Smith*v. *Gofran,*34 Oal. 310'; *Himmel-mann*v. *Steiner,*38 Cal. 175 ; *Dowell*v. *Portland,*10 Pan 308; *Chambers*v. *Shatterlee,*40 Oal. 524; *Himmelmann*v. *Hoad-ley,*44 Chi. 279; *Brock*v. *Lurning,*89 Cal. 318; *Blanchard*v. *Beideman,*18 Cal. 261; *Himmelmann*v. *Danos,*35 Oal. 448; *Hewes*v. *Beis,*40 Chi. 255; *Taylor*v. *Donner,*31 Gal. 481.)

The acts of ministerial officers are to be tested by the law which governs them; by the record, as originally made, their acts must stand or fall. (Blackwell on Tax Titles, page 357; *Dowell*v. *Portland,*10 Pac. 311.)

A property owner has a vested right to be -assessed according to the method of law in force when the work is ordered, and if the levy or assessment is made according to a different method, or under a different law, by which either the amount to be paid, or the time in which payment be made, is different front that of the original law which was in force at the time the work was ordered, the levy or assessment is void and the property owner cannot be required' to1 pay ai levy or assessment so- made. *(Oity of Spokane*v. *Broivne,*36 Pac. 26; *City of Cincinnati*v. *Sea-songood,*21 N. E'. 630; *Huston*v. *McKenna,*22. Oal. 550; *Creighton*v. *Pragg,*21 Oal. 115; *Todd*v. *Laundry,*12 Am. Dec. 480, note.)

The fact that the city council in making the assessment omitted any lot or part of a lot, that was situated within the district benefited, renders the whole assessment void. *(Peovle*v. *Lynch,*21 Am. Bep'ts. 677.)

. The frontage rule of assessment is contrary to- Article XII of the Constitution of the state, which provides in substance *237tbat all property shall be taxed at a uniform rate, according to its value. *(McBean*v. Chandler, 24 Am. Bep. 308; *Kertsen*v. Milwaukee, 48 L. B. A. 851.)

*Mr. Edwin M.*Lamb, and *Mr. J. L. Templeman,*for Be-spondents.

MB. JUSTICE. HOLLOWAY,,

after stating the case, delivered tbe opinion of the court.

Appellants urge in this court: (1) That the tax was prematurely certified to the county treasurer; (2.) that the omission of certain property, which it is alleged was benefited by the improvement, vitiates, the entire assessment; (3) that the adoption of the frontage' rule of valuation renders the assessment void; and (4) that the assessment is void for the reason that the city did not own the alleywiay at the time the assessment ■was made.

1. Appellants concede that the validity of the assessment is to be determined by reference to the law in force at the time the improvement was ordered, and this admission disposes of the first contention above; for whether or not the assessment was prematurely certified to the county officials depends upon whether the Act of the Third legislative assembly approved March 7, 1893 (Session Laws 1893, p. 130), the Act of the Sixteenth territorial legislative assembly approved March 14, 1889 (Session Laws 1889, p. 185), or Chapter 22, Fifth Division, Compiled Statutes of 1887, shall govern; and this depends upon the date when the alley was ordered opened, which date the complaint fails to disclose. Not being informed when the improvement was ordered; we are unable to. determine what law was in force when the same was done, and therefore unable to say whether or not the assessment was prematurely certified. In the absence of any showing to the contrary^ it must be presumed that the city officials regularly performed their duty. (Subdivision 15, Section 3266, Code of Civil Procedure.)

2. It is next contended that the city omitted to assess other *238property which was situated in the same district and locality, and which was benefited by the improvement.

These special assessments are commonly made according to some standard fixed by the legislature — 'as according to the frontage of the property, its value, its superficial area, or according to the special benefits received by the property affected. The last mile was in force in this state at the time this action was commenced and for many years before. When the method is prescribed, the levy must embrace all the property within the district to which the principle of the assessment applies. (Cooley on Taxation, 1216.) In other words, if the statute or city charter under which the council is operating fixes the limits1 of a district as of all property abutting on the street improved, then no such abutting property can be omitted without invalidating the levy; or, if the statute directs the city council to impose the tax upon such property as the council shall determine is specifically benefited by the improvement, then, in that event, the council having determined what property is specifically benefited, that particular property constitutes the improvement district for that purpose, and the council is not warranted in omitting from the assessment, any of such property.

The complaint in this action does not allege that the council omitted any property which it (the .council) had determined was benefited by the improvement — that is, from the improvement district, which it had created by the exercise of its judgment and discretion; but does allege, in effect, that the district so constituted does not -include other parcels of land which the plaintiffs., if acting as the city council, would have-deemed benefited by the opening of the alley way. ’

It may be that the city council erred in its judgment in determining what property was and what was not benefited by the improvement; but, the legislature having designated the council as the proper body to make the assessment, and having clothed it with a discretion in the matter, and having authorized it to act upon its own judgment — not upon the judgment of some one else — its determination must be conclusive in the absence *239of allegations of fraud or suck gross mistakes as to preclude tbe exercise of sound judgment. Tliese principies have been so clearly established in this state as to preclude further discussion. *(Danforth*v. *Livingston,*23 Mont. 558, 59 Pac. 916; Cooley on Taxation, 1180, 1260.)

The principal case relied upon by the appellants *(People*v. Lynch, 51 Cal. 15, 21 Am. Rep. 677) is not in conflict with the views herein expressed. In that case the charter of Sacralmento required the expense of street improvements to be assessed against abutting property. The board of trustees (city council), in making an assessment for a certain street improvement, omitted certain property which, under the very terms of the charter, was liable for a portion of the cost of the improvement, and for that reason the assessment was held void.

3. Complaint is made that the city council adopted the frontage rule in determining the valuation of the property, and that such rule is inconsistent with our constitutional requirement that all property shall be taxed at a uniforim rate. (Article XII.)

Elven assuming that the constitutional provisions referred to apply to' special assessments for street improvements (and this we do> not decide), still the complaint nowhere alleges as a fact that the benefit conferred on plaintiffs.’ property does not bear the same ratio to the total benefit conferred, as. the tax assessed against their property bears. to> the total tax. Section 428, Chapter 22, Fifth Division, Compiled Statutes of Montana, 1887, provides: “F'or the purpose of payment of expenses> including all damages and costs incurred in taking of private property, and of making any improvement mentioned in the preceding sections, the city council may by resolution levy and assess the whole or any part not less than half of such expenses as a tax upon such property as they shall deterjmine is specifically benefited'thereby.” This provision continued in force until the time of filing this complaint. (Sess. Laws 1889, p: 185; Sess. Laws 1893, p. 130.) If the city council, after considering the matter fully, determined that the respective pieces of prop*240erty mentioned in plaintiffs’ complaint were specifically benefited by tbe improvement, and- assessed against tbem tbeir respective portions of tbe total tax to be raised, tbe mere fact tbat tbe council made use of tbe frontage rule in reaching sucb conclusion will not vitiate tbe assessment. While there is some conflict in tbe authorities, this is unquestionably tbe better rule, andi tbe one supported by tbe decided weight of authority. (Cooley on Taxation, 1221; *President, etc. of D. & H. Canal Co.*v. *City of Buffalo,*39 App. Div. 333, 56 N. Y. Supp. 976; *New Whatcom*v. *Bellingham Bay Improvement Co.,*16 Wash. 131, 47 Pac. 236.)

4. Finally it is contended tbat tbe levy is void for tbe rea!-. son tbat tbe city bad no title to tbe alleyway at tbe date of tbe assessment. But these plaintiffs make no claim) tbat they, or any of tbem, own tbe ground sought to be used as such- alley, or bad any interest whatever in it, and, as strangers to tbe title, they will not be beard to question tbe title or right of possession of tbe city to tbe property. We are of tbe opinion tbat tbe complaint does not state a cause of action, and tbat tbe demurrer was properly sustained.

Tbe judgment is affirmed.

*Affirmed. .*

Rehearing denied December 24, 1903.