Fairhaven herald. [volume] (Fairhaven, Wash.) 1890-????, 1892-05-18
AN IMPORTANT DECISION
Cost of Street Improvements
Not Assessable Against
Implanted Land
So Rules the Supreme Court in
the Case of Howell VS.. the
City of Tacoma
A Decision Upon Questions In
volved in the Mckenzie
Avenue Case

The supreme court of the state Ia
affirmed the decision of the superio
court Of Pierce county in the case Of J
| ;. Howell VS.. the City of Tacoma ct al
TO restrain the collection Of an assess
ment for certain street improvement
made by order of the council upon th,
tunpfatted lands of the respondent
The case seems 10 be an exact counter
part Of the eases in controversy between
the city and the Fairhaven Land Com
pany, relative TO the assessment for tn,
improvement of Mckenzie avenue
across the unplatted strip between Ben
nett avenue and the water front, and
also between the city and the property
owners who are resisting the payment
of the assessment for the Padden road
extension. Following Is the syllabus
OF the decision, embodying the points
relied upon by the respondent, and set
ting forth the position sustained both
by the superior and supreme courts:
/. The charter Of city, providing that
the cost of street improyeme Is shall be
assessed upon the lots aud parcels of land
having a frontage upon the improved
street, ratable according To the valuation
OF each, allows assessments only In such
parts OF the city as have been plated into
lots and parcels extending back uniform
distance from the street.
2. The provision of a city charter, max
Ing proceedings which relate to an assess
meht Tor improvements binding upon
those who petition for the Improvement
aud who, although given an opportunity
to appear and object TO the proceedings
or assessment fail TO do so, does not estop
them from afterwards objecting to such
an assessment when the methods by
which the assessment was reached were
such as To render IT unequal and uncon-
stitutlonal, but only when the proper
methods were employed.
3. The fact that a person who applies
TO a court of equity TO set aside an assess
ment against him on the ground that IL Is
fails TO pay or offer - pay the
with which he Is properly
chargeable, does not deprive him OF the
right to relief, where the assessment was
made upon a basis so false and unwar-
ranted as 20 furnish no ddtd upon which
such proportion could be sustained.
Following is the opinion in full of
. hhGt iiOJAf anu III WIIltIJ MI lIlt
Judges Of the court concur:
THE first question presented by the
record In this case is as to the legality
Di certain assessment for street inn
provements made by the city Of Ia
coma upon the lands Of the respondent.
II appears from the record, and from
the admissions and briefs Of counsel,
that such improvement was upon a
street situated in the suburban part of
said city Of Tacoma, where much of the
land had not been plated into town
lots. The city council, in constituting
Lhe provisions Of its charter, determined
that the lots or parcels upon which
they were authorized to assess the cost
1f the improvement were ali lots and
parcels which had frontage upon the
street improve |, aud that each Of said
lots anu parcels should bear their rata
Die proportion Of such cost according To |
he value thereof, regardless of the |
question as TO the depth Of such lots or
parcels back from said street, and also |
Of the extent Of the frontage
hereon. The language Of the charter |
hus construed by the city council, as /
In the laws Of 1886, D. 220, il |
Is follows: "Such cost and expense |
hall be assessed upon said lots and !
parcels Of land in the following man
fer: The cost and expense Of the work /
lone and materials furnished in max |
ng the entire improvement shall be as
essed upon the lots and parcels Of land |
ronting upon the improved street. |
highway or alley within the limits OF /
he Improvement thereof lengthy wise of |
uch street, highway or alley, ratable
ccording TO the valuation Of each of
aid lots or parcels of land, exclusive of
he improvements thereon, as determ.
ned by the last annual assessment
hereof fer general and municipal taxa.
ion, made previous TO such assessment
4 said cost and expense thereon. y
md the result In this case of such i'm.
expectation was that along some nor.
ions Of said street the lands fronting
hereon extended back less than Ig9
set, while on other portions such lands
xtended back 900 feet or more. The
would necessarily be that
ome Of the lands fronting upon the
treet would pay much greater sum
er foot front Than others. The exact
r0portioh OF this inequality was not
1ade to appear by the record, for the
easOn that the case was do.
ernined in the court below upon the
headings, but from an inspection of
neh pieadings, and Of the map which
y consent was considered "a properlv
part of the record, 1t was certain that
he lands of respondent were burlened
nth "A charge OF three or four times as
iuch for each foot Of frontage as some
ther lands situated upon the street.
he system or plan Of Assessing the
ost Of street Improvements upon the
'ts fronting ther on according 10 their
'due, though questioned by many
Durts, may, for the purpose Of this
ase, be conceded, but IL does not fol-
Nv that assessments hereunder should
e sustained, which are clearly I'M ,
Iuai, any more than under any other 4
ystem. The basis of all taxation IL /
Iuality. And no tax of any kind can