Wingate v. Ketner

• Court: Washington Supreme Court
• Writing for the Court: HOYT, J.
• Citation: Wingate v. Ketner, 8 Wash. 94, 35 P. 591 (Wash. 1894)
• Decision Date: 16 January 1894
• Parties: WINGATE v. KETNER, AUDITOR, ET AL.

35 P. 591

8 Wash. 94

WINGATE v. KETNER, AUDITOR, ET AL.

Supreme Court of Washington

January 16, 1894

Appeal from superior court, Pierce county; W. H. Pritchard, Judge.

Injunction by Robert Wingate against R. A. Ketner, auditor of Pierce county, and others. Judgment for defendants. Plaintiff appeals. Affirmed.

S. C. Milligan, for appellant.

F. H Murray, for respondents.

HOYT J.

Appellant brought this action to restrain the city of Tacoma and the auditor of Pierce county from proceeding in the levy of a certain tax, of five mills on the dollar, which the common council of said city had by ordinance directed to be spread upon the roll certified to them by the county assessor, as required by statute. The lower court adjudged him entitled to no relief, and dismissed his complaint, and from the judgment of dismissal he prosecutes this appeal. He presents to this court but two reasons why the tax, if assessed, will be illegal: First, because the common council had no authority to levy it; and, second, that the ordinance making the levy was not passed until more than 30 days after the roll had been certified to the common council.

It is only necessary to say as to the second question that construing all the proceedings relating to the certifying of the said roll to the common council, and the passage by it of the ordinance in question, it fairly appears that such ordinance was passed within the 30 days provided by statute. But, even if it was passed after the expiration of said 30 days, that fact alone would not render it invalid. The limitation as to the time is not so mandatory that the least neglect to comply therewith would deprive the city of the right to make any tax levy for the year.

The determination of the other question depends upon the construction of the act passed March 9, 1893, providing for the assessment and collection of taxes in cities of the first class, in connection with the provisions of the general revenue act. It is contended on the part of the appellant in relation to these statutes that, when they are construed together, it is not made to appear therefrom that it was the intention of the legislature to provide that cities which had made and collected a tax levy during the year 1893 should have the right to make a further levy upon the basis of the assessment roll for the county for the same year. We are unable to agree with this contention. By the provisions of section 2 of said act of March 9th, it is made the duty of all cities of the class to levy a tax in the fall of each year upon the basis of the assessment roll to be certified to them by the county assessor; and, by force of such section, it is clear that the city of Tacoma would have been authorized to make the tax levy in question at the...