, 1891-11-23
A SPOKANE CASE.
A QUESTION ON THE COLLECTION
OF STREET ASSESSMENTS.
Two ObstructtOns to the Legality
of the Assessment-One Tech
ntcaltty, the other Com
tradicting ordinance.
/ Continued from Saturday. Nov. :

~ SAWACG8AS WEU1RsAAGGs
[Continued from Saturday, Nov. 2l.
But respondents second objection raises
more difficult and serious question. a The
power Of the city to levy assessments for
local improvements must be found in its
charter BY section of the charter it IS
provided THAT in all levies and assess
ments to pay the expenses of such i'm
proYements the real estate only shall be as
sessed, excluding from such assessment all
improvements thereon, whether the same
! are affixed to the land or not, and the i'm
prOVements on such lands shall not be
taken or assessed as any part of the land
or at ALL
Sec. 2, of ordinance No. So contains the
same provision MS to the character of the
property to be assessed for street improve
ments. But that section was so amended
ny ord1nanceaaNo. 81 as to provide for in
Guiding both the land and all improve
ments thereon in all assessments for the
grading ofstreets.
1t is contended by counsel for respon-
dents that the latter ordinance being in
eontraYentlon of section of the charter,
IS obviously void. To meet this objection
1t Is urged by appellants counsel that that
portion OF the city charter above quoted is
itself void, being in conflict with section
,924 OF the organic act, which declares
that "all taxes shall be equal and uniform,
and no distinction shall be made in the as
sessment between different kinds Of prop
erty, but the assessment shall be according
TO the valuation of the property" but that
notwithstanding the void portion there
still remains sufficient power in said section
to carry out the grant therein contained.
and that the void part NAV be stricken orf
or dIsregarded and the remainder will be
Yaild and unobjectionable. But we are un-
able to agree to the proposition that section
IS IN conflict with the organic act, We
think that section 1924 Of that act has ref
erence to general taxation onlv, and was
not intended to apply to special assess
ments for local municipal improvements
rms Is the doctrine laid down by eminent
text writers, and is abundantIy supported
by adJuged cases. See Cooley on Taxation
va edition, 2O7, 2O8, chapter Xxx and cases
cited)
1t is further urged that if provision Of
cnartef above referred to is unconstitu-
uonal, then ordinance No. 33 as amended
by ordinance No. 83 provides the
proper and legal mode for assessing PROP
erty under the provisions of the charter,
and that If that provision is constitutional,
then ordinance No. SO is absolutely void.
and OF no effect, and the second section of
ordinance No. 80 stands as though no at
Atemht to amend it had been made, and
that, II either event the assessment should
pc sustained. The answer to the first pro
position of counsel is that if that Dor
tlon OF the charter claimed to be iun-
constitutional is disregarded, then there is
no provision left IN the charter by which
the proper manner of making such assess
ments IS pointed out. Section 10 Of the
CHARTER gives the city power, by general Or
dlnanee, to prescribe the mode in which
the charge on the respective owners of lots
OF land, and on lots or lands shall be as
sessed and determined for the purposes
authorlzed by this act; but that provision
evidently refers to the method or stmode,'
by which property is to be charged general
~, ana under 1T, the city council would be
authorized to adopt a method of assess
ment, according to value or frontage. as
might be deemed best By ordinance No.
50 the city adopted a method of assessment
based on the value Of the property. and
provided that, in all such assessments the
real estate only should be assessed, and
thaG the improvements thereon should be
excluded. That ordinance was in har-
mony with section of the charter. and
was undoubtedly valid. But section was
attempted to be repealed by ordinance No, |
83. And Ii we concede that ordinance No. |
% was not SO repealed, but is still in full
force and effect, it will be of no benefit to
appellant, because the assessment was made
not under that ordinance, but in accord |
ance a With the PROVISIONS of ordinance No. |
90. Ihe latter ordinance is void because it |
Is I. IN contraYentlon of the eproVisions Of sec
ton OF the city charter relative to assess
ments, and the assessment made under it !
was, therefore, without gauthority of law
and cannot be sustained. But it is |
suggested that if property was assessed
which should not have been placed upon
the the assessment roll this court ought to dis
regard It an! and let the assessment stand for ihe
amount justly chargeable against respond
ents This would be equivalent to making
q g, new new roll and new assessment, which is
clearly beyond our power or province.
Were the assessment based upon legal
authority, a mere generalization of prop
erty t,d y would not vitiate it, but being con
to replieye appellant from its effects. The
city has brought this action to collect an
assessment to pay the expense of an I'M
proyement it has made, aud which, no
doubt, has been beneficial to respondents,
and and It can only recover by showing strict
compliance lI with the provisions of its char
ter, This, in our opinion, it has failed to
DO. 1t follows, therefore, that the judg-
ment OF the court below must be affirmed.
and it is SO ordered. T. J. ANDEBs, Q. j.
we concur: Elmon Scott, j.; T. L.
Stiles, j.; John P. Hoyt, j.; R. o. Dun