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it was not made proportionately on all lands in the district, or that any statute expressly exempts its right of way. Its position seems to be that, having shown the exclusive use of the land for a right of way, it must be conclusively presumed that it has not been benefited by the improvement, and therefore cannot be assessed at all. In other words, it does not question the amount of the assessment levied, but the validity of any assessment. This position cannot be sustained. After the proper legislative authority (in this case the city council) has by ordinance established a local improvement district, which includes all abutting property, and has directed an assessment according to frontage, the presumption is that all abutting property within such district is benefited by the improvement without regard to the use to which it may be applied.

ment can be imposed; that the strip of land | levied by regular statutory procedure, that used solely as right of way for railway trains is not benefited by the improvement of an abutting street; that the public use to which the land is exclusively devoted is not thereby rendered more valuable; that trains can pass and repass as well without as with the improvement; that appellant only occupies its land as a right of way, not owning the fee, and that its easement is not subject to special assessment. Although the appellant may not hold the fee-simple title, there is no reasonable or immediate probability that it will abandon the land. Its use will doubtless be perpetual. Appellant is therefore for all practical purposes the substantial owner. The fee, subject to its use and easement, is of but little value, if any. Except for appellant's occupancy, no suggestion would be made that the land was not benefited by the improvement, or that it would not be subject to the assessment. The particular use of the land cannot affect its liability to assessment. Abutting property cannot be relieved from the burden of a street assessment simply because its owner has seen fit to devote it to a use which may not be specially benefited by the local improvement. The benefit is presumed to inure, not to such present use, but to the property itself, affecting its value. Appellant cites the following authorities to show that its right of way cannot be subjected to special local assessments: Village of River Forest v. Chicago & N. W. Co., 64 N. E. 364, 197 Ill. 344; N. Y. & N. H. R. R. Co. v. City of New Haven, 42 Conn. 279, 19 Am. Rep. 534; City of Philadelphia v. Philadelphia, etc., R. Co., 33 Pa. 41; Junction R. Co. v. City of Philadelphia, 88 Pa. 424; City of Boston v. Boston & A. R. Co., 49 N. E. 95, 170 Mass. 95; Detroit, G. H. & M. Ry. Co. v. City of Grand Rapids, 63 N. W. 1007, 106 Mich. 13, 28 L. R. A. 793, 58 Am. St. Rep. 466; Chicago, M. & St. P. R. Co. v. Milwaukee, 62 N. W. 417, 89 Wis. 506, 28 L. R. A. 249; Borough of Mount Pleasant v. B. & O. R. Co., 20 Atl. 1052, 138 Pa. 365, 11 L. R. A. 520; City of Alleghany v. Western Penn. R. Co., 21 Atl. 763, 138 Pa. 375; Naugatuck R. Co. v. City of Waterbury, 61 Atl. 474, 78 Conn. 193. While these cases seem to be in point, there is a sharp conflict of authority on this question. We think the best-considered cases and the weight of modern authority, from which citations are hereinafter made, are opposed to appellant's contention. No citation of authority is necessary in support of the fundamental principle that the right of a municipality to levy special assessments depends on statutory enactment, and that it has no existence unless there be a valid statute conferring it. It is also elementary that the whole theory of special assessment is based on the doctrine that the property against which it is levied derives some special benefit from the local improvement. The appellant makes no contention that the assessment was not

Subdivisions 10 and 13 of section 739, Ballinger's Ann. Codes & St. (section 3732, Pierce), expressly grant to councils of cities of the first class legislative authority to provide for local improvements, to determine that they may be made at the expense of abutting property, and to levy assessments therefor on benefited property. The same powers are granted by subdivisions 10 and 13 of section 18, art. 4, of the Charter of the City of Seattle. Subdivision 3, § 11. art. 8. of the City Charter, authorizes the establishment by ordinance of a local improvement district which shall embrace all property benefited by the improvement, and further provides that: "Unless otherwise provided in such ordinance such district shall include all the property between the termini of said improvement, abutting upon, adjacent or proximate to the street, lane, alley, place or square proposed to be improved to a distance back from the marginal line thereof one hundred twenty (120) feet, and all property included within said limits of such local improvement district shall be considered and held to have a frontage upon such improvement, and sha!! be the property specially benefited by such local improvement, and shall be the property assessed to pay the cost and expense thereof, or such proportion thereof as may be chargeable against the property specially benefited by such improvement, which cost and expense shall be assessed upon all of said property so benefited, in proportion to the frontage thereof upon such improvement." This provision confers on the council legislative authority to determine what property will be benefited. In this case the council have by ordinance determined that all property abutting on the improvement to a distance of 120 feet from the line thereof, which includes the appellant's right of way, has been benefited, and has directed that the assessment be made thereon in proportion to frontage. This method of making assessments according to frontage has been held valid and constitutional by the great weight of modern au

thority. Elliott on Roads & Streets (2d Ed.) § 559; 2 Cooley on Taxation (3d Ed.) pp. 1217, 1218, and cases cited; French v. Barber Asphalt Paving Co., 181 U. S. 324, 21 Sup. Ct. 625, 45 L. Ed. 879; Webster v. Fargo, 181 U. S. 394, 21 Sup. Ct. 623, 45 L. Ed. 912; Sheley v. Detroit, 45 Mich. 431, 8 N. W. 52; Hackworth v. Ottumwa, 114 Iowa, 467, 87 N. W. 424; Harrisburg v. McPherran, 200 Pa. 343, 49 Atl. 988: Parsons v. District of Columbia, 170 U. S. 45, 18 Sup. Ct. 521, 42 L. Ed. 943; King v. Portland, 63 Pac. 2, 38 Or. 402, 55 L. R. A. 812; King v. Portland, 184 U. S. 61, 22 Sup. Ct. 290, 46 L. Ed. 431. This court, in the case of McNamee v. Tacoma, 24 Wash. 591, 64 Pac. 791, where a reassessment had been made on the front-foot basis, held such a method of assessment to be proper, and having distinguished Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443, substantially as it was afterwards distinguished in French v. Barber Asphalt Company, 181 U. S. 324, 21 Sup. Ct. 625, 45 L. Ed. 879, and later cases by the Supreme Court of the United States, reversed the judgment of the superior court, which had held the statute allowing an assessment according to frontage to be unconstitutional. In Sheley v. Detroit, supra, Mr. Justice Cooley said: "We might fill pages with the names of cases decided in other states which have sustained assessments for improving streets, though the apportionment of the cost was made on the same basis as the one before us. If anything can be regarded as settled in municipal law in this country, the power of the Legislature to permit such assessments and to direct an apportionment of the cost of frontage should by this time be considered as no longer open to controversy. Writers on constitutional law, on municipal law, and on the law of taxation have collected the cases. and have recognized the principle as settled.

As above stated, however, the theory of the appellant is that the judgment of the superior court confirming the assessment is erroneous, for the reason that, according to its contention, neither the statute nor the city charter contemplates that its lands, which are at present used exclusively as a right of way, shall be assessed; that an assessment can be upheld only on the theory of benefits conferred equal to the assessment imposed; and that in its very nature its right of way cannot receive any such benefit. We have heretofore mentioned the cases cited by appellant in support of this contention. There are, however, numerous authorities announeing the contrary doctrine which we now approve, holding that the right of way of a railroad is liable to special assessments for local improvements. This rule should certainly be adopted in tais case, as our statutes and the charter of the city of Seattle confer such broad legislative authority upon the city council to determine what lands shall be included in the district as benefited by the im

provement. 2 Cooley on Taxation (3d Ed.) p. 1234; Louisville, etc., Co. v. Barber Asphalt Paving Co., 76 S. W. 1097, 116 Ky. 856; City of Ludlow v. Trustees, etc., 78 Ky. 357; Northern Indiana R. R. Co. v. Connelly, 10 Ohio St. 160; L. & N. R. R. Co. v. Barber Asphalt Paving Co., 197 U. S. 430, 25 Sup. Ct. 466, 49 L. Ed. 819; Chicago & Alton R. R. Co. v. City of Joliet, 153 III. 649, 39 N. E. 1077; C. & N. W. Ry. Co. v. Elmhurst, 165 Ill. 148, 46 N. E. 437; I. C. R. R. Co. v. The People. 170 III. 224, 48 N. E. 215; Pittsburgh, etc.. Ry. Co. v. Hays. 44 N. E. 375, 45 N. E. 675, 46 N. E. 597, 17 Ind. App. 261; Peru & Indianapolis R. R. Co. v. Hanna, 68 Ind. 562; Rich v. City of Chicago, 38 N. E. 255, 152 Ill. 18; Indianapolis & V. R. Co. v. Capital Paving, etc., Co., 54 N. E. 1076, 24 Ind. App. 114; State v. City of Passaic, 23 Atl. 945, 54 N. J. Law, 340; State v. Robert P. Lewis Co., 82 Minn. 402, 85 N. W. 207, 86 N. W. 611, 53 L. R. A. 421 (on rehearing). In City of New Whatcom v. Bellingham Bay, etc., R. R. Co., 16 Wash. 137, 47 Pac. 237, we held that it was not within our province to say that a railroad right of way could, under no circumstances, be benefited by a street improvement, and sustained a special assessment on such right of way. We cannot express our views more clearly on this question than by quoting at length from the language of Mr. Justice Peck, in Northern Indiana Railway Company v. Connelly, supra: "If railroad tracks are taxable for general purposes, it is difficult to perceive why they should not be subject also to special taxes or assessments. The company, to advance its own interests, has seen fit to appropriate to its use ground within the corporate limits of the city of Toledo, and over which that city had the power of making assessments to defray the expense of local improvements, and why should not the company be held to have taken it cum onere? A citizen would scarcely claim exemption, because he had devoted his lot to uses which the improvement could not in any way advance, and we see no good reason why a railroad company should be permitted to do so. The company has the exclusive right to the possession, so long as it is used for the road, and if the roadbed was exempt from taxation for general purposes, it would by no means follow that it was not liable for such special assessments.

re City of New York, 11 Johns. (N. Y.) 77, where church sites, which, by the laws of New York, were exempt from taxation, were held to be liable for such assessments. But it is said that assessments, as distinguished from general taxation, rest solely upon the idea of equivalents, a compensation proportioned to the special benefits derived from the improvement, and that in the case at bar the railroad company is not, and in the nature of things cannot be, in any degree, benefited by the improvement. It is quite true that the right to impose such special taxes is based upon a presumed equiva

lent; but it by no means follows that there must be in fact such full equivalent in every instance, or that its absence will render the assessment invalid. The rule of apportionment, whether by the front foot or a percentage upon the assessed valuation, must be uniform, affecting all the owners and all the property abutting on the street alike." In Louisville, etc., R. R. Co. v. Barber Asphalt Paving Company, 197 U. S. 430, 25 Sup. Ct. 466, 49 L. Ed. 819, the first syllabus reads as follows: "In determining whether an im. provement does, or does not, benefit property within the assessment district, the land should be considered simply in its general relations and apart from its particular use at the time; and an assessment, otherwise legal, for grading, paving, and curbing an adjoining street, is not void under the fourteenth amendment because the lot is not benefited by the improvement owing to its present particular use." In City of Ludlow v. Trustees, supra, the Court of Appeals of Kentucky said: "While assessments of this character, as distinguished from general tax. ation, rest upon the basis of benefits or presumable benefits to the property assessed, it is not essential to their validity that actual enhancement in value, or other benefit to the owner, shall be shown. The passage of the ordinance by the city council, under the power granted in the charter, is conclusive of the propriety of the improvement, and of the question of benefit to the owners of abutting property. Northern Indiana R. R. Co. v Connelly, 10 Ohio St. 164. Absolute equality in the distribution of such burdens cannot be attained. An approximation to equality is all that is possible, but in reaching this point the present or prospective use of the property cannot enter into the calculation."

It might possibly be suggested that, in many of the cases here cited, the attacks made on the validity of special assessments were collateral, while in this instance the attack is direct. It is true that this hearing is on written objections to the proposed assessment. The objections which may be presented and adjudicated in a proceeding of this character do not extend to or question the right of the city council in the exercise of its legislative authority to determine that appellant's land is benefited and shall be included in the assessment district; but the appellant has the right to question by such objections all matters of procedure and the equality of the assessments made. In People ex rel. Scott v. Pitt, supra, the Court of Appeals of New York, in passing on a statute of that state quite similar to the statutory and charter provisions here involved, said: "The provisions of the charter did not deny to the relator the right to a judicial hearing before the assessment became conclusive upon him,

and so far as that right is secured to the citizen by the Constitution or any principle of law in proceedings for imposing a tax or as sessment, it was not disregarded or violated by the statute in question. The relator was, by the terms of the act, entitled to a hearing and had a hearing before the local authorities upon every question to which the right applied. applied. He had the right to show that the proceedings for the construction of the sewer were not initiated or conducted as required by the statute. He had the right to show that his property was so situated that he could not use the sewer for drainage purposes. He had the right to show that he owned no property on the line of the street, or, if he did, that the width was erroneously estimated. He had the right to a hearing upon every question relating to the validity or amount of the assessment except the principle or rule of apportionment, and that was prescribed by the Legislature in the exercise of its discretion, and he had no more right to a hearing upon that question after the statute was enacted than he had to a hearing upon the question whether his property should be assessed at all." The determination of the city council that the appellant's land is benefited and should be included in the local improvement district and assessed is final under any showing made in this case.

The appellant further contends that, even if it should be held that its right of way will receive some special benefit from the improvement, the assessment should not be made, as no lien can be enforced therefor. It insists there is no law in this state nor any provision in the statute for special assessments, which permits the road and right of way of a public service corporation to be broken up or sold in fragments, and the exercise of its franchise to be destroyed by piecemeal foreclosures and sales. The right and power to levy a special assessment upon the appellant's right of way is not in any way dependent upon the question as to whether a valid and enforceable lien can be created against its property. Troy & Laningsburg R. R. Co. v. Kane, 9 Hun (N. Y.) 506. We do not understand that either the collection of the assessment, or the enforcement of any lien, is now before us for consideration. In this proceeding we cannot be called upon to anticipate and determine the validity of any method the city of Seattle may adopt for the collection of the assessment. It will be ample time for us to pass upon that question when it is directly presented.

The judgment is affirmed.

HADLEY, C. J., and DUNBAR and ROOT, JJ., concur.

(46 Wash. 661)

ERICKSON v. F. MCLELLAN & CO. (Supreme Court of Washington. Aug. 1, 1907.) CONTRACTS-ACTION FOR BREACH-PLEADING -REPLY-Departure.

A complaint alleged that plaintiff contracted with defendant to do certain work in improving a street, and that the contract had been performed. The contract was attached as an exhibit, and provided that the work should be done on a day specified, and that for each day's delay a certain sum should be paid. The answer admitted performance, but alleged that it was not completed within the time given. The reply admitted that the work was not completed within the time set, but alleged that the contract had been changed so as to include additional work; that plaintiff was delayed by failure of defendant to erect a bulkhead, and that the modification of the contract and failure of defendant amounted to a waiver of the time limit. Held, that the allegations of the reply were not a departure from those of the complaint; there being no desertion of the cause of action.

Appeal from Superior Court, King County; Geo. E. Morris, Judge.

Action by C. J. Erickson against F. McLellan & Co. From a judgment for plaintiff, defendant appeals. Affirmed.

Piles, Howe & Farrell and Dallas V. Halverstadt, for appellant. Shank & Smith, for respondent.

PER CURIAM. The respondent brought this action against the appellant to recover the sum of $1,542.90. In his complaint he alleged, in substance, that he had entered into a contract with the appellant by the terms of which he agreed to do certain work in improving a public street in the city of Seattle, which the appellant was under contract with the city to do; the work consisting of certain grubbing and clearing, and excavating and filling, the first to be paid for in a lump sum, and the other at so much per cubic yard. Alleging, further, that he had fully performed all of the terms and conditions of the contract on his part to be performed. The written contract sued on was attached to the complaint as an exhibit, and contained a condition to the effect that the respondent should have 11 months from June 1, 1904, within which to fully complete the work required under the contract, and that for each and every day that the work should remain unfinished after the required time he would pay $10 as liquidated damages. A certain further sum was claimed also for extra work. The appellant in its answer admitted the execution of the contract mentioned in the complaint, and the doing of this work as therein alleged, but denied that there was any balance due, and especially denied that the appellant had performed the contract according to its terms, or that he was entitled to anything for extra work. For an affirmative defense it set out the clause in the contract requiring the work to be completed within a given time, and alleged that the respondent did not complete the

work within the given time, nor for more than 130 days thereafter. It also alleged that it had furnished the respondent with certain materials and labor which had not been paid or accounted for; further alleging that the amount due for liquidated damages and for the value of the labor and materials exceeded the respondent's demand, and prayed that the respondent's action be dismissed. The respondent filed a reply to the affirmative defense, in which he admitted that he had not completed the work within the time prescribed in the contract, but alleged that the contract had been changed so as to include further and additional work, and for the finishing of which no time limit was fixed; also, that he was further delayed by the failure of the appellant to erect a certain bulkhead which was necessary to be erected before the work he had contracted to do could be completed; and that the subsequent change in the contract and the failure of the appellant to erect the bulkhead amounted to a waiver of the time limit prescribed in the written contract. On the issues thus made, the case went to trial before the court without a jury. During the course of the trial, the respondent offered evidence tending to show an oral modification of the contract sued on in the respects set out in the reply, and that the appellant had delayed the completion of the work by its failure to erect the bulkhead. To this evidence the appellant objected, but its objection was overruled. At the conclusion of the evidence, the court found in favor of the respondent for practically the amount sought to be recovered. Judgment was entered upon the findings, and this appeal taken therefrom.

The appellant assigns error upon the ruling of the court admitting evidence of the facts pleaded in the reply, contending that the reply was a departure from the allegations of the complaint, and hence not permissible in this state under the ruling of Distler v. Dabney, 3 Wash. St. 200, 28 Pac. 335, and other cases maintaining the same doctrine. In the case cited it was held that a plaintiff could not set up one cause of action in his complaint, and after answer abandon that cause of action and set up an entirely new one in his reply. To the same effect is Osten v. Winehill, 10 Wash. 333, 38 Pac. 1123, where it was also held that the question could be raised by objecting to the admission of evidence and moving for a nonsuit. But the case at bar does not fall within the rule of either of these cases. A departure in pleading takes place when, in a subsequent pleading, a party deserts the ground taken in his last antecedent pleading and resorts to another. Here there was no desertion of the cause of action set out in the complaint. The respondent was still compelled, in order to recover, to prove the principal allegations of his complaint, and the most that can be said against the pleading is that the entire cause of action is not

set out in the complaint. But to set out a part of the cause of action in the complaint and the balance in the reply is not a departure in pleading, however defective the pleading may otherwise be. Neither is it the proper remedy for such a defect to go to trial and object to the introduction of evidence. The pleading should be moved against, so that the pleader may have an opportunity to correct it without the delay and expense of taking a nonsuit and commencing his action over again. It seems to us now that such a practice would have been more in consonance with the spirit of the Code, had it been adopted in the cases above cited; but, since we hold the case at bar does not fall within them, it is unnecessary to announce a modification of the rule. We will not, however, extend the doctrine to other cases.

As no other error is assigned, it follows that the judgment appealed from must be affirmed.

It is so ordered.

(47 Wash. 1)

STATE v. KATON. (Supreme Court of Washington. Aug. 2, 1907.) 1. RAPE-EVIDENCE--SUFFICIENCY.

Evidence examined, and held to support a conviction for the rape of a female under the age of consent notwithstanding the impeachment of prosecutrix by her own conduct and admissions and by the testimony of other witnesses. [Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Rape, § 76.]

2. WITNESSES-CROSS-EXAMINATION.

Where, on a trial for rape, witness denied that she accompanied prosecutrix and defendant to the lodging house where the rape was committed as testified by prosecutrix, and professed only slight acquaintance with her, she was properly permitted to be cross-examined as to whether she had not written prosecutrix asking her to meet herself and defendant at a place named, and whether she had not attempted to persuade prosecutrix to leave the city with her. [Ed. Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 931, 935, 936.] 3. CRIMINAL LAW-APPEAL

PRESENTATION

OF ERROR-EXCEPTION-SUFFICIENCY.

A general exception to an entire paragraph of a charge containing several distinct propositions, each of which. with possibly one exception, is free from error, is not available.

Root, J., dissenting in part.

Appeal from Superior Court, Chehalis County; Mason Irwin, Judge.

Lin Katon was convicted for the rape of a female under the age of consent, and he appeals. Affirmed.

W. H. Abel, for appellant. E. E. Boner, for the State.

FULLERTON, J. The appellant, Katon, was accused by the prosecuting attorney of Chehalis county of the crime of rape, committed on the person of one Ruby Shannon, a female child of the age of 14 years. He pleaded not guilty to the charge, and on the issue thus raised a trial was had before a jury, which resulted in a verdict of guilty.

From the judgment pronounced upon the verdict, he appeals.

It is first contended that the evidence was. insufficient to justify the verdict. This contention is not based on the claim that there was a want of evidence tending to show the guilt of the appellant, but the claim is that the prosecuting witness, on whose evidence the state was compelled to rely to maintain its case, was so far impeached by her own conduct and admissions, and by the testimony of other witnesses, that the court should hold as a matter of law that her evidence was insufficient to maintain a conviction. The witness on her direct examination testified to acts which unquestionably showed the appellant's guilt, but on crossexamination she admitted that she had stated to certain persons named that the appellant had not had sexual intercourse with her, and was not the father of her child, and that she had only the day before, on the trial of another person for the same offense, sworn, in answer to questions put to her by the defense, that the appellant had never had sexual intercourse with her, and was innocent of any offense toward her. The only explanation she gave of her conduct in this respect was that she had promised the appellant to shield him in case any accusation should be made against him. The direct evidence tending to support her was the testimony of two persons who saw her in company with the appellant on the evening preceding the night she says the appellant had intercourse with her. The indirect evidence was somewhat more to the point. This consisted of admissions made by the appellant's witnesses and the appellant himself, and his unsuccessful attempt to prove that he was elsewhere at the time the prosecutrix testified he was with her. But, of course, to the overt act there was no direct evidence on the part of the state, save that of the prosecutrix herself. But notwithstanding this fact we do not think there is here any question of law for the court. While a conviction of the crime of perjury disqualifies a witness in this state in the absence of a reversal or pardon, no other disqualification of this sort exists. State v. Pearson, 37 Wash. 405, 79 Pac. 985, Any person, despite his character or previous conduct, may be a witness, although his character or conduct may be shown to affect his credibility. The witness therefore being a lawful one, it is not the province of this court to weigh her testimony. The jury do that in the first instance, and the trial court afterwards, when the evidence is challenged: but, when both the jury and the trial court say that the evidence is sufficient, the question is ordinarily concluded. An appellate court which admittedly deals with only questions of law cannot weigh conflicting evidence without usurping its functions.

The appellant called as a witness one Mrs. Cole. This person, the prosecutrix tes

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