3 Wash. 711 | Wash. | 1892
The opinion of the court was delivered by
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 ctíuncil, as contained in the laws of 1886, p. 220, § 117, is as follows:
“Such cost and expense shall be assessed upon said lots and parcels of land in the following manner: The cost and*713 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 one hundred feet, while on other portions such lands extended back one thousand 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 cause was determined by 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 on Constitu
The tax upon the lands of the respondent was clearly illegal. The appellants, however, contend that even although such is the fact, plaintiff was not in a situation to question it for the reason — (1) That he was one of the petitioners for the improvement, and must he held to have moved the common council to do what they did, and cannot, therefore,
The other objection of appellants as to the proceedings of the court below is, that a 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 as in equity he should. And they claim that in this case the answer showed that the lands of respondent were benefited by the improvement, 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 applies to a tax or assessment absolutely void, as we hold this one
Judgment of the court below must be affirmed.
Anders, C. J., and Stiles, Scott and Dunbar, JJ., concur.