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ried woman, in respect to her separate prop- As Montana has no community-law system, erty, labor or services, shall not be binding and as the indebtedness for which this note upon her husband, nor render him nor his was given was not for the necessaries menproperty liable therefor; but she and her tioned in section 227, we think, in the light of separate property shall be liable on such the other sections quoted from the statutes contracts in the same manner as if she were of that state, that Mrs. Dabney is not liable sole.

upon this note. “Sec. 255. A married woman may make It is suggested by respondent that, if the a will in the same manuer and with the case should be reversed, this court should resame effect as if she were sole, except that mand the same with directions to permit the such will shall not, without the written con- deiendants to offer proof of the “first affirmsent of her husband, operate to deprive him ative defense contained in the answer of Joof more than two-thirds of her real estate, seph B. Dabney," that we should pass upon or more than two-thirds of her personal es- the question of whether said "first affirmtate.

ative defense" constitutes a legal defense. "Sec. 200. A married woman may make On account of the condition in which the contracts, oral or written, sealed or unsealed, record comes here, we are unable to do this. and may waive or relinquish any right or The answer appearing in the record sets forth interests in any real estate, either in person what it calls defendant's first aflirmative or by attorney, in the same manner, to the defense," and contains no other aflirmative same extent and with the like effect as if she defeuse. The first portion of said “first afwere a single woman.

firmative defense” alleges facts which it is “Sec. 257. No estate is allowed the hus- claimed constitute usury. This defense was band as tenant by courtesy upon the death waived upon the trial. No demurrer or moof his wife."

tion or ruling thereupon appears in the recMontana Code Civil Procedure:

ord. "Sec. 3152. In this state there is no com- The judgment of the honorable superior mon law in any case where the law is de. court is affirmed as to Louise E. Dabney, and clared by the Code or the statute; but where reversed as to Joseph B. Dabney. not so declared, if the same is applicable and of a general nature, and not in conflict with MOUNT, C. J., and DUNBAR, CROW, the Code or other statutes, the common law FULLERTON, and HADLEY, JJ., concur. shall be the law and rule of decision."

Montana Civil Code (Comp. St. 1887):
"Sec. 221. A full and complete inventory

(44 Wash. 218) of the separate personal property of the wife STATE ex rel. BARNES v. CITY OF may be made out and signed by her, acknowl

BLAINE et al. edged or proved in the same manner required (Supreme Court of Washington. Oct. 26, 1906.) by law for the acknowledgment or proof of MUNICIPAL CORPORATIONS – DEBT - VOID a grant of real property by an unmarried MUNICIPALITY-SPECIAL IMPROVEMENT WARwoman, and recorded in the office of the coun- RANTS-RATIFICATION.

Special street improvement warrants of a ty clerk of the county in which the parties

void municipality cannot, after the legal creareside."

tion of the municipality, be ratified by it by “Sec. 1439. That from and after the pas

the issuance of funding bonds, so as to convert sage of this act women shall retain the same

the liability from that of a special indebtedness

to a general one, enforceable against all the legal existence and legal personality after taxpayers. marriage as before marriage, and shall re- [Ed. Note. For cases in point, see vol. 36, ceive the same protection of all her rights as Cent. Dig. Municipal Corporations, $$ 34–39,

684, 881, 1859.] a woman which her husband does as a man; and for any injury sustained to her reputa- Appeal from Superior Court, Whatcom tion, person, property, character, or any nat- County; Jeremiah Neterer, Judge. ural right, she shall have the same right to Mandamus by the state, on the relation of appeal in her own name alone to the courts Martin D. Barnes, against the city of Blaine of law or equity for redress and protection and others to compel the levy of taxes to that her husband bas to appeal in his own

pay certain bonds. From an order dismissing Dame alone.”

the action, relator appeals. Affirmed. It is urged that it does not appear that Newman & Howard, for appellant. G. H. Mrs. Dabney filed the inventory mentioned in

Westcott, for respondents. these statutes, and that therefore she cannot escape liability with her husband upon the ROOT, J. Relator instituted this proceedindebtedness evidenced by this note. It ap- ing to compel the city of Blaine and its offipears, however, that sections 221 and 222

cers to require the levy of taxes sufficient to have been held by the Supreme Court of lon- pay certain interest coupons aggregating in tana to be repealed, and consequently that amount $6,150, and to thereafter each year portion of section 227 referring to sections levy upon the taxable property of said city, 221 and 222 would be without virtue. Kelley in addition to the tax for other purposes, v. Jefferis, 30 Mont. 170, 32 Pac. 753; Lam- a sufficient sum to pay interest on each of brecht v. Patten, 15 Mont. 260, 38 Pac. 1063. certain bonds described in relator's affidavit,

and to provide a sinking fund sufficient to nance No. 41, "$03,700, and accrued interest." pay the bonds at maturity. Respondents This sum was intended to include, and did inanswered, admitting most of the allegations clude, all the unpaid warrants issued by in relator's amended affidavit, and setting the "Town of Blaine," not only such warrants up a separate affirmative defense, to which as were issued for general municipal purrelator demurred. The court overruled the poses, and payable from the "general fund," clemurrer, and relator declining to amend but all the warrants issued by the Town of or plead further, the court dismissed the pro- Blaine" for street improvements, and payceeding. From the order overruling the de- able from special street improvement funds. murrer and dismissing the action, relator has At the same time, Ordinance No. 41 was appealed to this court.

adopted; there was also an ordinance adoptIn May, 1890, the town of Blaine was in- ed by the city of Blaine known as "Ordinance corporated as a municipal corporation of the No. 40," providing for the calling of an elecfourth class under the provisions of the act tion, and submitting to the electors the propof March 27, 1890, and included within its osition to "borrow $70,000 for the municipal area three square miles, nearly one-half of purpose of funding the indebtedness of the which was unplatted. The town at once as- present city of Blaine and the former town sumed all the duties and exercised all the of Blaine, and to issue its negotiable bonds," powers incident and belonging to municipal etc. Both of these ordinances were passed corporations of that class. Among other acts by the city counsel at a special meeting which it performed was the opening, grading called for that purpose. The election to vote and sidewalking of streets and avenues; such upon the propositions contained in ordinances improvements being confined to about one- numbered 10 to 41, was held on December 7. sixth of the area of the town as defined by 1891, and all the propositions contained in its boundaries. On March 4, 1891, in a suit both ordinances were carried by more than in the nature of quo warranto proceedings, in- the necessary three-fifths vote of the elector's stituted by the Attorney General against said voting at such election. At the time this electown and its acting officers, the incorporation tion was held, instead of the total amount of was declared "illegal," and the act of the indebtedness, as described in said ordinances, board of county commissioners in incorporat- being, as stated therein, $70,000, it was in ing it "null and void." for the reasons, among fact $85,000, a sum $15,000 in excess of 5 others, which were enumerated in the judg. per cent. of all the taxable property in the ment rendered therein, "that it contained an city of Blaine, as ascertained by the last asarea of more than one square mile" and sessment for municipal purposes. In June, "more than 40 acres of unplatted land.” On 1892, the council of the city of Blaine passed May 4, 1891, following entry of the decree Ordinance No. 44, authorizing the issuance in the suit just referred to, the present city of the funding bonds, the subject of this suit. of Blaine was incorporated; the boundaries On each of these funding bonds was printed of which comprised the same territory that an act of the Legislature of the state of had been known as the “Town of Blaine” Washington (chapter 128, p. 261, Laws Wash. except a narrow strip along the entire north- | 1891) and Ordinance No. 40, and specifically ern boundary containing about 120 acres, made a part of each of such funding bonds. which area had been a part of the town of Between September 30, 1893, and January Blaine, but did not, and does not, form any 5, 1891, the mayor and clerk of the city of portion of the territory of the city of Blaine. Blaine delivered these funding bonds to the During the time the town of Blaine assumed holders of the warrants described in Ordithe duties and exercised the powers of a nance No. 41, in exchange for such warrants municipal corporation of the fourth class, at par, until $66,600 of the $70,000 had been warrants were issued in payment of munici- so delivered. The city of Blaine did not repal expenses, including street crossings, ag- ceive any consideration for the $66,600 fundgregating $18,000, which

which warrants were ing bonds so exchanged, except the warrants drawn in the usual form of municipal war- described in said Ordinance No. 41, which rants, and signed by the clerk and the mayor, were in fact practically all the special street and made payable from the general fund of improvement fund warrants issued by the said town; also warrants were issued in pay- town of Blaine. The total valuation of all ment for street improvements, and payable taxable property of the city of Blaine, at from a special fund designated according the date of the election, when it attempted to the name of the street upon which the con- to assume and ratify the indebtedness of sideration for the warrant had been expend- the former town of Blaine and authorized ed, aggregating $96,000; assessment districts the issuance of the funding bonds to pay being created in each case, and assessments such indebtedness, as ascertained by the last being made for the cost of such improvement. assessment for general municipal purposes, In November, 1891, the city of Blaine enacted was the sum of $1,412,513; at which time an ordinance known as “Ordinance No. 41" the total amount of unpaid taxes due said providing for the calling of an election to city was $1.260, with no funds on hand. The ratify and assume the indebtedness of the total valuation of said city when said fundformer “town of Blaine and the present city ing bonds were issued, as ascertained by of Blaine,” aggregating, as stated in Ordi- the last assessment for general municipal

purposes, was $738,162, and, on the date when the said bonds were exchanged for town of Blaine warrants, such valuation was $452,250.

We think this case is controlled by the prin(iples announced by this court in the case of State ex rel. Security Savings Society v. Moss, Treasurer of the Town of Medical Lake (decided September 26, 1906) 86 Pac. 1129. Upon the authority of that case, the judgment of the trial court herein is affirmed.


(44 Wash. 222) LISTER et al. v. CITY OF TACOMA et al. (Supreme Court of Washington. Oct. 26, 1906.) 1. MUNICIPAL CORPORATIONS -- LOCAL IM


Pierce's Code, $ 3754 (Laws 1899, p. 334, $ 2). provides that the city council directing a local improvement at the expense of benefited property may ordain whether payment shall be made in one sum or by installments, etc. Il cld that, under such section, the city council was authorized to direct whether the expense should be paid in one sum or by installments at any time before an assessment was made for the payment of the work. ). SAME RESOLUTIONS ORDINANCES CHANGE--PROPERTY OWNERS-PREJUDICE.

A city council passed a resolution to improve certain streets and to levy an assessment to pay for the improvement and to issue 7 per cent. bonds, payable in cash or in 10 annual installments at the option of the property owners. The ordinance, however, by a clerical mistake, provided for the issuance of bonds, payable in five annual installments, and after the contract for the improvement was let the mistake was discovered, whereupon another ordinance was passed amending the first, changing the installments from 5 to 10. The bids received were based on 10-year installments, all the bidders understanding that the payments were to be on the 10-year plan, as did also objecting property owners. Feld, that the error was not prejudicial on the theory that, if the ordinance had provided for 10 installments, more favorable bids might have been obtained.

Fullerton, J., dissenting.

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

Action by Ernest Lister and others against the city of Tacoma and the Independent Asphalt Paving Company to enjoin the attempted levy of certain assessments against complainants' lots for street improvement. From a decree dismissing the bill, complainants apreal. Affirmed.

Boyle & Warburton, for appellants. C. M. Riddell, R. E. Evans, and J. W. Quick, for respondent city. A. R. Titlow and C. D. Eshelman, for respondent company.

a resolution of intention to pave and improve certain streets in said district including the property in question, and to levy an assessment against the property to pay for said improvements by issuing bonds at 7 per cent. interest, said bonds payable in cash or in 10 annual installments, at the option of the property holders. An ordinance was passed in conformity with the resolution. By mistake an old form was used, where the number of installments had been five instead of ten, and the clerk failed to change the word "five" to "ten." The bids were made in accordance with the notice given and other provisions of the city charter, and this was the only notice given to the bidders. After the same was regularly given and published, the Asphalt Pavement Company was awarded the contract for $56,473. After the contract was let but before it was executed, it was discovered that the ordinance and resolution of intention to improve did not agree, by reason of the mistake which we have mentioned above. The city council, after the discovery of said discrepancy, passed another ordinance amending the second section of the first ordinance by causing the time of the payments of the assessments to be changed from five annual installments to ten annual installments.

The contention of the appellants is that the city authorities had no right to enter into the contract for the payment of this work, by reason of the expressed difference between the resolution and the ordinance; and that the correction of the ordinance after the letting of the contract was without force or effect. We are unable to determine from the statutes or from the charter, at which time the city must determine the time of the payments to be made for work of this kind. Section 3754, Pierce's Code (Laws 1899, p. 334, § 2), provides: “The city council or other legislative body of such city ordering the making of a local improvement at the expense, in whole or in part, of the owners of property benefited, may ordain whether payment is to be made in one sum or by installments, and levy assessment upon the property benefited for its part, or the whole of the cost as the case may be.” In the absence of a law providing the time and conditions under which the payment should be made, we must conclude that the city council would have authority to make it at any time before the assessment was made for the payment of the work, unless it appears that by reason of the failure to make it in advance of the submission for bids the property owners would be injured. In this case the contention is that the property owners may have been injured, for the reason that the bidders might have taken into consideration the length of the investments which they would obtain, and that an investment at 7 per cent, for 10 years might be considered preferable to an investment at 7 per cent. for 5 years; that the bidder would therefore take that in

DUNBAR, J. This is a street improvement case from the city of Tacoma. The facts are conceded. The contention is that the facts found do not sustain the conclusions of law. Briefly, the city council of the city of Tacoma, on June 20, 1906, passed

to consideration in his bid, and that the prop- , notify her of assessments. Held, that such an erty holder might receive the benefit of such agreement was not binding on the association, consideration in a lower bid.

and it might rely on a forfeiture though the The facts

clerk failed to give the notice. found by the court are to the effect that this

2. SAME ASSESSMENTS — EXCUSES FOR NONwas a purely clerical error or mistake; that PAYMENT. the bids were based upon 10 years; that The insanity of a member of a mutual beneall the bidders bidding on said work under

fit insurance association is no excuse for his

nonpayment of dues and assessments pursuant stood said payments to be on the 10-year plan

to the terms of his contract. instead of the 5-year plan; that all of the [Ed. Note.-For cases in point, see vol. 28, city officials, including the mayor, city coun- Cent. Dig. Insurance, 1906.] cil, city engineer, and commissioner of pub- 3. SAME - FORFEITURE RIGHTS OF BENEFI. lic works, so understood it; that the prop- CIARY-WAIVER. erty owners in said district so understood

Where, under the by-laws of a mutual bene.

fit insurance association and under the terms of it; that there were remonstrances filed

a certificate issued to a member, he was required against the doing of said work after the to pay assessments after notice and quarterly resolution of intention was passed; that dues in advance without notice, and the clerk said property owners thoroughly understood

of the local camp erroneously refused to receive

a tender of an assessment made by the mother that the work was to be done upon a 10-year of the infant beneficiary, but for 21 years plan instead of a 5; and that said error was thereafter the beneficiary and her mother, who a purely clerical error. So, it is evident

had the certificate in her possession, took no

steps to correct the error or to assert their that no harm could have come to the bidders

rights under the certificate, the association was or to the city or to the property holders by not liable thereon. reason of this mistake, because all the parties

Appeal from Superior Court, Snohomish acted upon the theory that the ordinance

County; W. W. Black. did comply with the resolution, and that

Action by Lulu L. Sheridan, by Tillie Hewthe 10-year payment plan was the plan which

itt, her guardian, against the Modern Woodwas considered by all parties. But, if we

men of America. From a judgment in favor understand the appellants, it is contended

of plaintiff, defendant appeals. Reversed that other bidders might have been prompted

and remanded, with instructions to dismiss to make a lower bid than any that was sub

the action. mitted had they understood that the work was to be done on the 10-year plan. It seems

Emery, Rourke & Denney, and Ben. D. to us, however, that this is a possibility too

Smith, for appellant. Bostwick & Mulvihill, remote, especially when it is considered that for respondent. the ordinance and the resolutions provide that the payments may be made at the op

CROW, J. Action by the plaintiff, Lulu L. tion of the property holders either in cash or Sheridan, by Tillie Hewitt, her guardian, by yearly installments. So that there could upon a benefit certificate issued by the debe really no assurance to any bidder that

fendant to one Hiram D. Sheridan, now dehis investment would be made for any length ceased. The certificate, which was issued of time, even for one year. We think pub

April 19, 1900, named as beneficiary the lic policy would not be subserved by holding plaintiff, Lulu L. Sheridan, niinor daughter an assessment invalid for the irregularity

of Hiram D. Sheridan and Tillie Hewitt. At which is complained of in this case.

the date of the certificate Lulu's father and The judgment is affirined.

mother had been divorced, and her mother

had subsequently married. The plaintiff conMOUNT, J., and HADLEY, and RUDKIN,

tends that, during the month of December, JJ., concur. FULLERTON, J., dissents.

1901, while Hiram D. Sheridan was in good ROOT and CROW, JJ., took no part,

standing, he became insane; that in March, 1902, he was committed to an asylum where

he remained until his death in June, 1904; (44 Wash. 230)

that in December, 1901, on discovering such SHERIDAN V. MODERN WOODMEN OF insanity, Tillie Hewitt, the plaintiff's mothAMERICA.

er, gave notice thereof by letter to the clerk (Supreme Court of Washington. Oct, 27, 1906.)

of the defendant's local camp at Libby, Mont., 1. INSURANCE-MUTUAL BENEFIT INSURANCE

advising him that, if Mr. Sheridan failed to -POWERS OF AGENTS.

pay his assessments, she wished to be notiThe by-laws of a mutual benefit insurance fied so that she might pay for the benefit of association provided that no officer of any local

her daughter; that, in response the clerk camp was authorized to waive any of the provisions of the laws of the association; declared

wrote Mrs. Hewitt that Mr. Sheridan's asthe clerk of the local camp to be the agent of sessments were then paid in advance, that such camp, and provided that no act on his when further assessments became due he part should have the effect of creating a liability on the part of the association. The by-laws

would notify her, and that he regretted to provided for the giving of notice of assessments,

learn of the insanity of Mr. Sheridan; that and that a failure to pay any assessment should the clerk afterwards failed to notify Mrs. ipso facto work a suspension. After a member

Hewitt of assessment No. 1 for January, became insane, the mother of his minor child, who was the beneficiary, obtained an agreement

1902; that Sheridan was suspended for its from the clerk of the local camp that he would nonpayment; that by reason of the failure of the clerk to notify Mrs. Hewitt, such sus- , signed by himself; that a beneficiary member pension was void; that no subsequent notice in suspension for more than 60 days but less was given Mrs. Hewitt; and that the certifi- than six months, if in good health, might be (ate, therefore, remained in full force at the reinstated upon furnishing a certificate of date of Sheridan's death. The defendant good health from the camp physician after claims that due notice of assessment No. 1 medical examination duly approved by the for January, 1902, was given to the assured head physician, and upon payment of all by the clerk of the head camp in the manner arrearages; that no oficer of any local camp provided by the contract; that he failed to was authorized or permitted to waive any pay the same and became ipso facto suspended of the provisions of the laws of the society on February 2, 1902; that he was never re- relating to the contract for the payment of instated; that no notice was given the defend- benefits; that no officer of any local camp ant of the insanity of the insured prior to should have the right or power to waive any his suspension; that insanity is no excuse of the provisions of the by-laws of the for nonpayment of assessments; and that society; that the clerk of the local camp the alleged notice of insanity and the clerk's was declared to be the agent of such camp, alleged promise to inform Mrs. IIewitt of and not the agent of the head camp; that nonpayment conferred no rights upon the no act or omission on his part should have plaintiff, nor did they impose any duty upon the effect of creating i liability on the part the defendant. Prior to the commencement of the society or ot' waiving any right or of this action, the plaintiff tendered to the immunity belonging to it, and that he should defendant all dues and assessments which not collect or receive assessments or dues had mature between January 1, 1902, and from a beneficiary member who has been June 1, 1901, amounting to $27.30. This suspended, except upon reinstatement in the tender was refused; the defendant denying manner above mentioned. All by-laws of the liability on the certificate. On trial the jury society were, by the express terms of the cerfound a verdict in favor of the plaintiff for tificate, made a part thereof. No payment of $1.97. öll and from the judgment entered any assessments or dues maturing after Dethere. This appeal has been taken.

cember 1, 1901, was made by Sheridan or The appellant, with other assignments of any other person at any time prior to his error, contends that the trial court erred death in June, 1904, nor were any tendered (1) in denying its motion for a nonsuit, and except on the one occasion hereinafter men(2) in denying its motion for a directed ver- tioned. The respondent's witnesses testified clict. The pleadings and evidence show that that, in Deceniber, 1901, Mrs. Hewitt wrote the appelant is a fraternal mutual benefit a letter to the clerk of the local camp, adassociation, organized under the law of Illi- vising him of the insanity of Sheridan, and nois, with its head camp at Rock Island, requesting him to notify her so that she and witli numerous local camps throughout might pay the assessments in the event of Illinois and other states; that it is organ- the failure of Sheridan to do so; that the ized on the lodge plan, having a ritualistic clerk, answering this letter, stated the assessform of work, and also certain fraternal, ments were then paid in advance, and that social, and indemnity features. Hiram D. he would keep her notified; that by reason Sheridan was a member of the local camp of the failure of the clerk to give her any at Libby, Mont. By the terms of his certi- further notice, she failed to pay the assessficate, the appellant agreed in case of his ment levied in January, 1902, not knowing death to pay to the respondent as beneficiary that it had been levied; that in February, the sum of $2,000, subject to certain condi- 1902, the clerk by letter advised her of the tions therein stated; one of which was that suspension of Sheridan for nonpayment of if assessments against the assured should not the January assessment, and sent her a be paid to the clerk of the local camp on or blank certificate of health to be signed by before the first of the month following the him as a condition precedent to his reindate of notice of the same, then the certifi- statement; that in response to this letter, cate should be null and void. The by-laws she, on March 8, 1902, wrote the clerk in provided that every beneficial member who part as follows: "I have been away a little after notice should fail to pay any assess- while and was not here when Lulu, my ment on or before the first of the following daughter, got your letter or would have seen month, or who should fail to pay dues in ad- to it at once as Sheridan was here then, but vance on or before the 1st day of April, July, he is not here now and the last time I saw October, or January, should ipso facto be- him, about three weeks ago, he was well and come suspended; that during such suspen- walking down the street, but as he has left sion bis benefit certificate should be absolute- town I cannot get him to sign the paper but ly null and void; that a suspended member will inclose $3.60 to pay the dues to May might be reinstated within 60 days upon 1st, and if it is not all right, you can return payment of all arrearages, together with all the money order to me,

the reason fines, dues, and assessments maturing sub- I wish to keep up these dues is he is a very sequent to default, provided that he was then reckless man now in some ways and as I in good health and furnished the clerk of the wrote you a year ago that I would keep local camp a written certificate to such effect up these dues if you would inform me when


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