Howell v. City of Tacoma

• Decision Date: 10 February 1892
• Docket Number: 404.
• Citation: 3 Wash. 711,29 P. 447
• Parties: HOWELL v. CITY OF TACOMA ET AL.
• Court: Washington Supreme Court

29 P. 447

3 Wash. 711

HOWELL v. CITY OF TACOMA ET AL.

No. 404.

Supreme Court of Washington

February 10, 1892

Appeal from superior court, Pierce county; FRANK ALLYN, Judge.

Suit by Josephus S. Howell against the city of Tacoma and others to restrain the collection of an assessment for certain improvements. From a judgment granting the relief prayed for defendants appeal. Affirmed.

S. C. Milligan, for appellants.

Seymour, Griggs & Lockwood, for respondent.

HOYT J.

The first question presented by the record in this case is as to the legality of a certain assessment for street improvements made by the city of Tacoma upon the lands of the respondent. It 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 platted into town lots. The city council, in construing the provisions of its charter determined that the lots or parcels upon which they were authorized to assess the cost of the improvement were all lots and parcels which had a frontage upon the street improved, and that each of said lots and parcels should bear their ratable proportion of such cost according to the value thereof, regardless of the question as to the depth of such lots or parcels back from said street, and also regardless of the extent of the frontage thereon. The language of the charter thus construed by the city council as contained in the Laws of 1886, p. 220, is as follows: "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 in making the entire improvement shall be assessed upon the lots and parcels of land fronting upon the improved street, highway, or alley within the limits of the improvement thereof, lengthwise of such street, highway, or alley, ratable according to the valuation 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 interpretation was that along some portions of said street the lands fronting thereon extended back less than 100 feet while on other portions such lands extended back 1,000 feet or more. The consequence would necessarily be that some of the lands fronting upon the street would pay a much greater sum per foot front than others. The exact proportion of this inequality was not made to appear by the record, for the reason that the case was determined in the court below upon the pleadings, but from an inspection of such pleadings, and of the map which by consent was considered as properly a part of the record, it was certain that the lands of respondent were burdened with a charge of three or four times as much for each foot of frontage as some other lands situated upon the street. The system or plan of assessing the cost of street improvements upon the lots fronting thereon according to their value, though questioned by many courts, may, for the purpose of this case, be conceded, but it does not follow that assessments thereunder should be sustained, which are clearly unequal, any more than under any other system. The basis of all taxation is equality. And no tax of any kind can be sustained when it appears that the several parcels of property, properly chargeable with the tax, are made to bear unequally the burden thereof. This proposition is almost axiomatic. We would cite, however, upon this point, Cooley Const. Lim. (5th Ed.) p. 620, and cases there cited. In our opinion, the assessment in question violates this well-settled rule. So far as appears from this record, there was no reason why the lands of respondent, which were situated at a greater...