, 1892-05-23
A TACOMA CASE.
Question as to the Legality of an
Assessment.

- "A
tiOn ON Improvement Assess
ments Solved.
lNotice-AII decisions of the supreme
court will appear in The DAILY and WEEK
LY TRIBUNE
Josephus S. Howell, respondent, VS.. the
CITY OF Tacoma ct al, appellants. No
404
The first question presented bythe record
In this case is as to the legality of a certain
assessment for street Improvements made
Dy the city OF Tacoma upon the lands of the
respondent. 1t 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.
Ihe city council. in constituting the pro-
visions OF Its charter, determined that the
lots, or parcels, upon which they were au-
thorlzed to assess the cost of Improvement,
were all lots and parcels which had a 'front.'
age upon the street improved, and that
each OF said lots and parcels should bear
their ratable proportion Of such cost accord
ing to the value thereof, regardless of the
question as to the depth Of such lots or
parcels back from said street, and also re-
gardless OF the extent of the frontage there
on. The language of the charter thus con-
Strued by the city council as contained in
"Such cost and expense shall be assessed
upon said lots and parcels of land in the
following manner: The cost and expense
of the work done and materials furnished
III making the entire improvement shall be
assessed upon the lots and parcels of land
IronGng upon the improved street, highway
or alley within the limit of the improvement
thereof, lengthwise of such street, high
way or alley, ratable according to the valu-
alton of each Of said lots or parcels of land
exclusive of the improvements thereon as
determined by the last annual assessment
thereof for general and municipal taxation
made previous to such assessment of said
cost and expense thereon"
And the result in this case of such inter
probation was that along some portions O.
said street the lands fronting thereon ex
tend back less than one hundred feet.
while on other portions such lands ex
tended back one thousand feet or more
Inc consequence would necessarily be thai
some OF the lands fronting upon the stree
would pay much greater sum per foo
than others. The exact proportions of thi,
inequality was not made to appear by the
records, for the reason that the case wa,
determined in the court below upon tn,
proceedings, but from an inspection O.
such pleadings, and Of the map which. by
consent, was considered as properly par
of the record, it was certain that the land.
OF respondent were burdoned witha charge
OF three or four times as much for eact
foot OF frontage as some other lands stu
ated upon the street
Ihe system, or plan, of assessing the
cost OF street Improvements upon the lots
fronting thereon according to their value
though questioned by many courts, NAV
Tor the purpose Of this case be conceded
but 1t does not follow that assessments
hereunder should be sustained, which
areclearly unequal, any more thar
under any other system. The basi.
OF al taxation is equality; and nc
tax OF any kind can be sustained Wher
1t appears that the several parcels of prop
erty properly chargeable with the tax are
made to bear unequally the burden thereof
rms proposition Is almost automatic. We
Would cite, however, upon this point, Cooley
on Constitutional Limitation, 8 edition
page go, and cases there cited.
In our opinion the assessment in cues
ton violates this well settled rule. So faI
as appears from this record there was nc
reason why the lands Of respondent, which
were situated at a greater distance from
the street improved than the limit of the
narroWest strip charged with such improve
ment upon other portions of the street
should have been made to bear any part OF
the cost OF the improvement. And when
one OF TWO adjOlni g strips of frontage is
assessed only to the depth of one hundred
teet, and the other to depth of thousand
feet. 1t is evident to all that such assess
ment Is not equal and uniform. The use
OF the word parcels" in the charter of said
city must have more restricted definition
than that given to it by said common conn.
ell Ii said clause of the charJeris to stand
the test OF constitutional scrutiny, it must
be held to relate only to improvements in
such parts of the city as have been plated
INTO lots and parcels of su ubstantially equaI
depth upon the street to be improved, OF
thaL under 1t the common council can
establlsh an assessment district extending
back uniform distance from the street
throughout the entire length of the i'm.
proYement and assess only upon the lots
and parcels within such district, Whether
or not II Will stand the test when thus con.
stIued 1t is not necessary for us now to de.
clue, as TINS assessment does not meet any
Interpretation of said clause consistent
with its constitutionality. See
Washington Avenue, SO Pa. st. 1852.
City V. Rule, SO Pa st. 15
Seely V. Pittsburg, 80 Pa. st. 1866.
The tax upon the lands of the respondent
was clearly illegal. The appellants. how
ever, contend that even although such is
the fact plaintiff was not in situation tC
question ittOr the reason: ID That he was
one OF the petitioners for the improvement
and must be held to have moved the com
mon council to do what they did, and can.
not, therefore, now object. (2) That under
the provisions Of the charter of said city
OF Tacoma the respondent was given the
opportunity OF appearing and objecting tc
any OF the proceedings or to the assess
ment, and not having done so he is bound
by the action Of the council in approving
OF the levy. The provisions of the charter
IN that regard are broad enough to warrant
this contention on the part of the appel
lants, but such construction would, as in
the other case cited, destroy the cOnstitu-
f1Ona IItW n euph - 1
held constitutional the conclusiveness of
the proceedings had before the city council
must be held to apply only to the question
OF procedure and valuation under a method
which, II properly applied, would work
substantial justice. 1t could not be ex-
tended so as to estOp one from asserting
rights as against such assessment when the
common council has never had anv iuris-
dlctlon OF the proceeding or had so far de-
parted from proper methods as to oust il of
such jurisdiction. In the case at bar we
think thatthe proceedings clearly show such
departure from constitutional methods as
to render them void, and for that reason
respondent as a petitioner for the work is
not responsible therefor or bound thereby.
ana that for a like reason the proceedings
before the common council in equalizing
and approving the assessment are binding
upon no one.
The other objection of the appellants as
to the proceedings of the court below is
that court of equity will not set aside a
tax, nor restrain its collection, unless the
party seeking the interposition Of the court
pays, or offers to pay, such proportion of
the tax assessed against him asln equity he
should. And they claim that in this case
the answer showed that the lands of the
respondent were benefited by the improve
ment, and that in equity he should pay for
such benefit. and that as he has not done
so he could not maintain this action.
We doubt whether the rule above stated
apPues TO tax or assessment absolutely
void, as we hold this one to be. but even If
1t does we think the reasons set out in re-
spondent's complaint why he has not paid
OF offered to spay his proper proportion
OF the cost Of the improvement is a suf-
hclent one. The whole assessment was
made upon basis so false and unwarrant-
ed that 1t furnished no data from which