therefrom, and added to another district, a vacancy in the office of road overseer was created. If so, the commissioners had authority to appoint the respondent to fill the vacancy. Appellant contends that, if such a result is to follow, the effect of it will be to empower the board of county commissioners of every county in the state to subvert, and practically nullify, that provision of the constitution providing that such officers shall be elected, for the commissioners may, after each election, so change the road districts of their respective counties as to exclude the road overseers elected from the respective districts wherein they at the time resided, and for which they were elected; and, while it is conceded that the commissioners aforesaid have authority to alter road districts, it is claimed that the same must be held to be prospective, so far as the office of road overseer is involved, and some cases are cited as supporting this: State v. Holden, (Minn.) 47 N. W. Rep. 971; Brungardt v. Leiker, (Kan.) 21 Pac. Rep. 1065; People v. Markham, (Cal.) 31 Pac. Rep. 102. We are of the opinion that appellant's position is well taken. In holding as we do,-that the commissioners have authority to make changes in road districts under the act in question, but that such changes are prospective, as affecting the office of road overseer, the letter and spirit of the constitution are fully maintained and force is given as well to the act of the legislature. The provision relating to vacancies, above Italicized, cannot be sustained, at least to the extent of including a case like this. The commissioners have authority to remove road overseers for inefficiency, neglect of duty, or malfeasance in office, but not otherwise. versed and remanded.

Re

(7 Wash. 101) WHATCOM COUNTY. FAIRHAVEN LAND CO.

(Supreme Court of Washington. July 31, 1893.)

TAXATION EXCESSIVE VALUATION REMEDYFAILURE TO APPLY TO BOARD OF EQUALIZATION -FORECLOSURE OF TAX LIENS DEFENSE-ANSWER- COMPLAINT-PARTIES-DECREE-ATTORNEY'S FEE.

1. Const. art. 7, § 2, requires the legislature to provide by law for uniform taxation according to value. Code 1881, § 2877, as amended in 1886, conferred on boards of equalization power to hear all matters concerning assessments, to subpoena witnesses, and to raise or reduce appraisements so as to make taxation uniform. Section 2879 provided that during the session of such board any person might apply for correction of any error in his assessment, and that failure to do so should bar him from further recourse in law as to the valuation. Laws 1889-90, c. 18, (constituting the general revenue law,) § 73. prescribed the powers of the board of equalization, but the substance of such provisions of Code 1881 is

entirely absent from such act. Laws 1891. c. 140, § 84, provides that the auditor shall file with the clerk of the superior court of his county a copy of the revised tax list, and that within 10 days such clerk shall issue a citation to each delinquent named on the list, requiring him to appear within 30 days before such superior court, and show cause why his land should not be sold to pay registered taxes. Held that, in case of excessive valuation, the taxpayer's remedy is not a proceeding before the board of equalization to correct the assessment, but he may show such excessive valuation in proceedings under such order to show

cause.

2. Since the act of 1891 does not clearly require the taxpayer, on order to show cause, to file an answer, as did the act of 1890, the fact that an answer filed in proceedings under the former act does not set out the facts required in an answer by the latter act is no reason for denying the taxpayer relief from an unjust overvaluation.

3. Laws 1891, § 101, authorizes the county attorney to bring suit to recover registered unpaid taxes, naming as defendants the owner, reputed owner, unknown owner, and all persons having recorded interests, estates, or incumbrances, and to include in one suit all parcels of land registered as belonging to the same owner. Section 103 provides that the county clerk must issue the summons, designating the owner, reputed owner, or that the owner is unknown, and such summons is to be in substantially the form given, and served as in other civil actions. Section 104 provides for service of summons on nonresidents by publi cation, except that when the owner is unknown or cannot be personally served, and the land is improved, service may be made on any adult person residing thereon. Under section 105, "defendant" is the party recognized as the one who may make defense. Held, that a complaint in such suit, which is entitled in the name of the county against the owner of the land when assessed, "and the real estate and improvements thereon, hereinafter described, and to all persons who have a recorded legal or equitable interest therein or incumbrance thereon," and contains a statement that the list appended is a list of registered unpaid taxes assessed to such owner, is sufficient, though in the body of the complaint there is no allegation as to ownership, in the absence of anything therein to show that any other person was interested in the property.

4. The fact that the answer and proof showed that, before the suit was brought, such named owner conveyed all the property de scribed to persons who were not made parties, is not fatal to the proceeding, where it is not shown that any of the deeds were of record.

5. Where a number of different tax liens are sought to be foreclosed in one suit, because the property all belongs to the same person, each demand on each parcel constitutes a separate demand, and is enforceable only against the land; and there should be no judgment against the owner for the aggregate taxes and a gross attorney's fee; but the decree should be that each parcel shall be sold for a sum ascertained, including interest, penalties, costs, and attorney's fee, with accruing costs to be added in the manner provided by law.

6. In such case the attorney's fee should be apportioned by assessing a percentage on the recovery against each parcel.

Appeal from superior court, Whatcom county; John R. Winn, Judge.

Action by the county of Whatcom against the Fairhaven Land Company and certain real estate to foreclose liens for taxes. From a judgment and decree in favor of plaintiff,

defendant Fairhaven Land Company appeals. Reversed and remanded.

Kerr & McCord and H. Y. Thompson, for appellant. Thos. G. Newman, for respondent.

STILES, J. This was a proceeding to foreclose liens for taxes upon a large number of separate parcels of real estate, taken under the act of 1891 to cure defective titles to real estate, and the general revenue law of the same year, (Acts, pp. 166, 280.) The taxes in controversy were those assessed for the year 1890. Upon the return of the order to show cause, the appellant made it appear that the property assessed to it was of four classes: (1) Nonassessable tide lands; (2) lands which had no existence in fact; (3) lands which were of the actual value, at the time of the assessment, of $193,451, but which were assessed at the value of $409,081; (4) lands which had been conveyed by it to third parties since the assessment. The first two classes were stricken from the roll by order of the court, and there is no issue upon them. As required by the court, appellant filed a sworn answer to the complaint of the county, and the evidence was taken before a referee. The answer set up, as a defense to the taxes claimed upon the third class of lands, that the appellant had appeared before the board of equalization, and demanded that its assessment upon this class of lands be reduced from the amount assessed to the actual value, but that no relief had been given, and no order made, in the premises; and that afterwards, when the time for payment of taxes had arrived, it appeared before the same board as the board of county commissioners, and represented the facts showing the excessive valuation and the illegality of the assessment, and that thereupon a compromise was made and a settlement had of the whole matter of appellant's taxes, whereupon, and in pursuance of the agreement for a settlement, and in full payment and discharge of its taxes, appellant paid to the treasurer of the county $24,892.26, and took his receipt therefor. The payment thus made was based upon the values as admitted to be correct by the appellant. Upon the hearing before the referce he found that the values of the appellant's lands of the third class were as claimed by it, but that it had failed to take advantage of the remedy provided by law in case of excessive valuation of property for taxation, and had thereby waived its right to object in this proceeding to the valuation as permitted to stand by the board of equalization; that is, it was estopped, now, to say that the values were other than those fixed by the assessor. Before the court, upon due exceptions by the appellant, the view of the referee was adopted in this particular, and the respondent had judgment; and herein lies the main issue in this case, viz.

whether, under the proceeding for the collection of delinquent taxes of former years, provided for in the two acts above mentioned, appellant was thus estopped.

There was some evidence in the case tending to show that the assessor had never made a legal assessment of these lands, but had merely set down arbitrary values in his office, without examination, inquiry, or knowledge of the condition, situation, or circumstances of the subject-matter. Town lots and blocks which, by reason of their being cut up by ravines, were far less valuable than others adjoining, were assessed at the same value; lots consisting of a narrow strip of upland, and the remainder tide flat, were assessed as all upland; and property remote from desirable locations was put down at the highest value; and, as a whole, the error was made of assessing the property at more than double its actual value. An arbitrary assessment of property without the exercise of the assessor's judgment, based upon knowledge or information, is an illegal assessment, and is a fraud upon the property owner, and may always be taken advantage of by the latter in some manner. But we do not think there was evidence sufficient in the case to establish the claim of constructive fraud, and shall decide it as merely one of palpably excessive overvaluation. In such a contingency, however, the respondent raises the point that tax laws do not generally afford any relief, except by appeal to a board of equalization, and that this particular law is not an exception to that rule. The proceedings subse quent to the work of the assessor were governed by the general revenue law of 1890, (Acts, c. 18, p. 530,) and section 73 of that act prescribes the powers of boards of equalization. The old revenue law (Code 1881, § 2877, as amended in 1886) provided that boards of equalization should have very full powers. They were to hear and determine all matters concerning assessments, and might subpoena witnesses, and raise or reduce all appraisements so as to make taxation equal and uniform; and there was a section reading as follows: "Sec. 2879. During the session of the board for the equalization of taxes and the correction of the assessment roll, any person or his attorney or agent may attend and apply for the correction of any alleged error in the listing and valuation of his property, and a failure to so attend and apply shall bar said person from further recourse in law, as to the valuation, but not as to error in description or to double assessment." But we look in vain for any of these provisions in the act of 1890, (Laws 1889-90, c. 18, pp. 530-592.) Every one of the board's duties is there put into mandatory language: (1) They shall examine and compare the returns of the assessment of property (not in the county, but) of the several towns or districts, so that all property shall be entered at its true and fair

value. (2) They shall raise the valuation of land which, in their opinion, is returned below its true and fair value, after two days' notice. (3) They shall reduce the valuation of land where, in their opinion, the assessment is too high, but nothing is said about an appearance or complaint by any person; it is their opinion which is to dictate the change. (4) Upon complaint they shall reduce the valuation of certain personal property. (5) But, most important of all, they shall not reduce the aggregate value of the property of their county below the aggregate value thereof as returned by the assessor, except for manifest errors in his valuation. The substance of the old section 2879 is entirely absent from this law. There is no power in the board to subpoena witnesses, and the authority to hear and determine is not expressed. The property owner is nowhere, in this law, invited to appear and make objections, if any he may have, until we reach section 105, where he is accorded the right to appear and set forth, by answer, the facts constituting his defense or objection to the tax and the penalties thereon; and by section 109 there can be no refuge in technicalities, nor any escape from the payment of a proper tax, but, if the lands "have been partially, unfairly, or unequally" assessed, the court may reduce the amount of taxes, and give judgment accordingly.

Now, the answer in this case did not set up facts showing either actual or constructive fraud on the part of the assessor, and respondent claims that the pleading was therefore insufficient to justify the argument which the appellant now urges, although it did allege facts showing an unfair assessment, and the evidence demontrated both its unfairness and its inequality. But this proceeding was not taken under the act of 1890, but under that of 1891, which provides for an order to show cause why certain land should not be sold to pay registered taxes. An answer by the taxpayer is proper enough under this law, although it is not as clearly required as under the law of 1890; but the cause is shown, not by the answer, but by the proof which is adduced; and the proof

'Laws 1891, p. 280, c. 140, § 84, provides as follows: "Within ten days after the adjournment of the board of commissioners the auditor shall file a copy of such revised list with the clerk of the superior court of the county; and within ten days after the filing of such copy the clerk shall issue and deliver to the sheriff of the county where the person against whom such tax is claimed may at the time reside or be, for service, a citation to each delinquent named on said list, stating the amount of tax and penalty, and requiring such delinquent to appear, within thirty days, before the superior court in the county and show cause, if any there be, why he should not pay said tax and .penalty; and if he fails to pay said tax, penalty and costs to the treasurer within thirty days, or show cause as aforesaid, the court shall direct the clerk to enter a judgment against such delinquent for the amount of such tax, penalty and costs.

in this case, as the court below found, showed such an overvaluation as ought not to be allowed to stand, for it was unfair because it was more than twice the actual value, and it was unequal because it was a great deal higher proportionately than the valuation of other similar property in the county. This statute of 1890 seems to have been modeled upon the revenue law of the state of Minnesota, many sections of each law being in identically the same language. The provisions concerning the county board of equalization and the method of collecting delinquent taxes by suit are the same. St. Minn. 1878, c. 11, §§ 44, 77, 79. But it seems to have been overlooked by our legislature that in Minnesota the township system of local government exists, (Id. c. 10,) and that each township has its own assessor, (Id. §§ 14, 26;) in cities the city assessor acts in all matters pertaining to assessment for county and state purposes, (Id. § 152;) and in villages the taxes are levied and collected in the same manner as are township taxes, (Id. § 215.) By section 39, c. 11, each town and city has its own board of equalization, which is authorized, upon the application of any person aggrieved, to review his assessment. and correct the same as shall appear just; and the section concludes: "All complaints and grievances of individuals, residents of the town or district, in reference to the assessment of personal property shall be heard and decided by the town board: provided, that the complaints of nonresidents in reference to the assessment of any property real or personal, and of others in reference to any assessment made after the meeting of the town board of review, shall be heard and determined by the county board." Then comes the meeting of the county board, whose action is regulated in harmony with, and as a review of the action of, the township boards. But, notwithstanding these provisions authorizing the owner of assessed property to appear before the town board, the supreme court of Minnesota, in numerous cases, before the adoption of our act of 1890 held that such cases as this one were cognizable by the courts, the owner not having been estopped. These cases are summed up and commented upon in Otter Tail Co. v. Batchelder, 47 Minn. 512, 50 N. W. Rep. 536. Due process of law in the taking of private property requires notice, and an opportunity to object and defend; and this requirement is met when the taxpayer is permitted to appear in court in response to a suit for the enforcement of a tax lien. Davidson v. New Orleans, 96 U. S. 97. Our constitution requires the legislature to provide by law for uniform and equal taxation according to value, (article 7, § 2;) and whether there is such uniformity and equality according to value must be a judicial question, the determination of which had probably been wisely arranged for by the method of foreclosure adopted in 1890. The cases cited to us from other states are

not pertinent, because they were not governed by like constitutional rules. This is notably so with the Illinois cases cited, for In that state the constitution (article 9, § 1) requires the delegation of the whole power, to ascertain the value of property for purposes of taxation, to "some person or persons to be elected or appointed in such manner as the general assembly shall direct, and not otherwise." Insurance Co. v. Pollak, 75 Ill. 292. It follows that appellant should have had judgment as to its lands in the third class.

2. The county attorney is authorized to bring suit to recover registered unpaid taxes, naming as defendants the owner, reputed owner, unknown owner, and all persons having recorded interests, estates, or incumbrances; and he may include in one suit all parcels of land registered as belonging to the same owner. Act 1891, § 101. The county clerk, upon the commencement of the suit, must issue a summons, citation, or notice, designating the owner, reputed owner, or that the owner is unknown, which notice is to be in substantially the form given, and is to be served as in other civil actions. Id. § 103. Whenever the owner is a nonresident of the county, or cannot be found therein, service of the summons may be made upon him by publication, except that when the owner is unknown or cannot be personally served, and the land is improved, and there is an adult person residing thereon, the summons may be served upon him, (Id. § 104;) and under section 105 "defendant" is the party recognized as the one who may make the defense. The complaint in this proceeding was entitled "The County of Whatcom v. The Fairhaven Land Company, and the real estate and improvements thereon, hereinafter described, and to all persons who have a recorded legal or equitable interest therein or incumbrance thereon;" and in the body of the pleading there was no allegation whatever as to the ownership, but merely a statement that the list appended was a list of registered unpaid taxes assessed to the appellant. To this complaint a demurrer was interposed for want of facts, by reason of the absence of an allegation of ownership. Appellant complains of the overruling of this demurrer. But we are not with appellant on this proposition, as we think the face of the complaint is sufficient, nothing appearing thereon to show that any other person was interested in the property, as owner or otherwise. But by the answer it did appear (and the proofs in the case sustained the statement) that, long before the commencement of this proceeding, appellant had sold and conveyed all of the property included in the fourth class of lands to divers persons. This fact of conveyance might, perhaps, have been fatal to the proceedings as to this class of lands, inasmuch as the statute is explicit that all persons who have recorded interests, estates, or incumbrances shall be named as

parties defendant; and, if defendants, they must, under section 105, have the right to appear and show cause why their property should not be sold. But it was not shown that any of the deeds proved to have been executed and delivered were of record, and we are of opinion that the respondent was entitled to a decree, since the appellant was the owner at the time of the assessment. Of how much value such a decree may be, if in fact these deeds were of record, it is not for us to now determine. If it should turn out of no value because parties necessary, under the statute, to a final establishment of the lien and a sale were omitted, the appellant will not be harmed, since no personal judgment can be taken against it. We think no importance is to be attached to the fact that section 110 regulates the relations of grantor and grantee as to payment of taxes. The personal obligation of a grantor to pay the taxes on lands sold before November 1st, where there is a covenant against incumbrances, is by that section taken away; but the suit for taxes may be prosecuted against the grantor alone, unless the grantee records his deed.

3. In entering the decree below, we agree with the appellant that sufficient care was not taken to limit it to a sale of each parcel for its own tax, interest, and penalties, and its just share of the costs of this proceeding. Where a great number of different tax liens are sought to be foreclosed in the same suit, because the property belongs to the same owner, each demand upon each separate parcel constitutes a separate demand, all the way through the case, and is enforceable only against the land. No judgment should, therefore, have been rendered in this case against appellant for the aggregate of all the taxes due, and a gross attorney's fee of $200, but the decree should be simply that each parcel should be sold for a sum ascertained. including interest, penalties, costs, and attorney's fee, with accruing costs to be added in the manner provided for by the statute. A schedule attached to the former decree perhaps accomplished substantially that, but the body of the decree rendered judgment in gross. As to the attorneys' fees, we find. upon examination of this statute, that everywhere (with the exception of some charges for specific services, like the 25 cents for registration) penalties, etc., are charged upon a percentage, and we see no better way of apportioning the fee in this case than by assessing a percentage upon the recovery against each parcel. It must be apportioned somehow, since it is not a personal charge against appellant, and no one parcel can be made to sustain the whole allowance. The amount allowed in the new decree will be $100, to be apportioned as above. We are unable to determine from the record, without great difficulty and loss of time, whether any of the lands included in the fourth class, belonging to third parties, were also included

In the third class, upon which the assessment was excessive, and the taxes were paid. If there be any such, they will be excluded from the new decree of sale. Cause remanded for a new decree in accordance with this opinion, as of the date of the decree appealed from; appellant to recover costs of the appeal.

HOYT, SCOTT, and ANDERS, JJ., con

cur.

(7 Wash. 97)

SEATTLE & M. RY. CO. v. JOHNSON et al. (Supreme Court of Washington. July 31,

1893.)

APPEAL SUFFICIENCY OF NOTICE MOTION TO DISCHARGE APPEAL BOND-ABSENCE OF BILL OF EXCEPTIONS FROM RECORD-ERRONEOUS ENTRY OF JUDGMENT-REMEDY.

1. Where a petition to vacate a judgment against plaintiff was answered by only a part of the defendants, service of notice of appeal from an order denying such petition on only those defendants who answered the petition is sufficient service, within Code Proc. § 1406, providing that such notice shall be served on all parties interested in the proceeding.

2. Where no motion is filed to discharge an appeal bond for alleged defects, in accordance with Code Proc. § 1421, providing for such motion on 10 days' written notice to appellant, the appeal will not be dismissed on the ground that the bond is defective.

3. Where, on appeal from an order denying a petition to vacate a judgment, the only question presented is the regularity of the judgment, neither a bill of exceptions nor statement of facts is necessary; the facts legitimately in the record being sufficient to enable a determination of such question.

4. Where a judgment is erroneous on its face by reason of not conforming to the verdict, no other objection being made, it should be corrected on motion or petition.

Appeal from superior court, King county; Richard Osborn, Judge.

Proceeding by the Seattle & Montana Railway Company against Thomas Johnson and condemn others to land of defendants.

From an order denying a motion to vacate a judgment for defendants on the verdict of a jury impaneled to assess damages, plaintiff appeals. Reversed.

Burke, Shepard & Woods, for appellant. White & Munday, for respondents.

ANDERS, J. The appellant instituted proceedings in the superior court of King county to condemn a right of way for railroad purposes over certain lands owned by Thomas Johnson and Ann Johnson, his wife, in which proceeding some thirty other parties were made defendants by reason of their having some lien upon, or interest in, said premises. A jury was impaneled to assess the damages, and a verdict was returned against the railroad company, and in favor of the defendants collectively, for the sum of $3,000. A motion for a new trial was filed by the pe

titioner and overruled, and some time thereafter judgment for said sum of $3,000 was entered in favor of Thomas Johnson and Ann Johnson, his wife, only. No appeal was taken from the judgment, and the amount of damages awarded by the jury, together with the costs of the proceeding, was paid into court by the petitioner. Subsequently, however, the railroad company filed a petition to vacate and set aside the judgment and decree of appropriation, and to substitute therefor a judgment in conformity with the verdict of the jury and the statute respecting decrees of appropriation of land in condemnation proceedings. The respondents Thomas and Ann Johnson filed an answer to the petition, and a hearing was had upon the peti tion and answer, resulting in a denial by the court of the relief sought by the petitioner. From that order of the court the petitioner appealed to this court.

No bill of exceptions or statement of facts appears in the record, and for that reason the respondents Thomas Johnson and Ann Johnson move to strike from the transcript all thereof except the petition of appellant to condemn the premises described in the petition, and the decree entered thereon, and also to dismiss the appeal, for the same and other reasons which, in our opinion, are not well founded. This court has heretofore held that an order denying a petition or motion to vacate a judgment is a final order in such proceeding, and therefore appealable, (Railroad Co. v. Black, 3 Wash. St. 327, 28 Pac. Rep. 538;) and the appeal will not be dismissed on the ground that the order appealed from was not final. The objection that the notice of appeal was not served on all of the respondents may be sufficiently answered by the observation that the notice seems to have been served on all of the respondents who appeared in the proceeding, and that was all that the statute required. Code Proc. § 1406.1

The appeal cannot be dismissed on the ground that the bond is defective. If the appeal bond was deemed insufficient, a motion should have been filed in this court to discharge it, in accordance with section 1421 of the Code of Procedure."

While it may be true that matters are included in the transcript which cannot be considered here, for the reason that they are not embodied in a bill of exceptions or statement of facts, yet the facts legitimately In the record are sufficient to enable us to determine the only question presented for our determination, namely, the regularity of the

Code Proc. § 1406, provides that, when notice of appeal from an order is not given at the time the order is made, it shall be served on all parties interested in the proceeding.

2 Code Proc. § 1421, provides that, if respondent believes the appeal bond defective, he may move the supreme court, on 10 days' written notice to appellant, to discharge it.