extra work made by the city which was not impeached for fraud or collusion is conclusive, and evidence showing its excessiveness is proper ly rejected on appeal to the superior court on objections to the assessment.

562.]

3. MUNICIPAL CORPORATIONS

450-PUBLIC IMPROVEMENTS-IMPROVEMENT DISTRICTS. Though Laws 1911, p. 449, § 15, requires an assessment district to be outlined in conformity to topographical conditions, and to include as near as may be all territory which can be sewered or drained through a trunk sewer, land inadvertently left out of the assessment district may be subsequently included.

FULLERTON, J. On May 20, 1912, the city council of the city of Bremerton, by an order duly recorded in the minutes of its proceedings, directed the city engineer and [Ed. Note.-For other cases, see Municipal the city attorney to take the necessary preCorporations, Cent. Dig. 88 1269-1271; Dec.liminary action relative to the construction Dig. of a trunk sewer on certain streets in such city, known as Warren and Ninth streets and Park avenue. Pursuant to such order the city engineer prepared plans for such a trunk sewer, and submitted the same to the council with an estimated cost thereof. The plans were adopted by the city council on motion to that effect and were "signed by the mayor and clerk." On July 29, 1912, the city council passed a resolution declaring its intention to order the improvement to be made. The resolution, while it contained much extraneous matter not required by the statute, contained all of the required essentials; it set forth the general nature of the improvement, described the routes along which the sewer was to be constructed, notified all persons who desired to object thereto to appear at a meeting of the city council at a time specified therein and present their objections, and directed the city engineer to

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1073-1074; Dec. Dig. 450.]

4. MUNICIPAL CORPORATIONS 514-PUBLIC IMPROVEMENTS-SCOPE OF ASSESSMENT.

Under Laws 1911, p. 469, §§ 42, 43, relating to reassessments, and declaring that the reassessment shall be made on all property benefited, though not included in the original assessment, and that the fact that the contract has been made or completed shall not prevent assessment upon property omitted, property benefited by the construction of a trunk sewer which was not included in the first assessment roll may on reassessment be included.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1207-1215; Dec. Dig. 514.]

5. MUNICIPAL CORPORATIONS 514-PUBLIC IMPROVEMENTS-ASSESSMENTS-ORDINANCE. Under Laws 1911, p. 469, § 43, declaring that municipalities shall proceed with an assessment by passing an ordinance ordering the same, the city must make a reassessment by ordinance and cannot make it by resolution.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1207-1215; Dec. Dig. 514.]

6. MUNICIPAL CORPORATIONS

MENTS-VALIDITY.

466-ASSESS

An assessment for a trunk sewer should follow the statute and direct such amounts to be levied on the property lying between the termini of the improvement and back to the middle of the blocks along the marginal lines of the streets improved, as would represent the amount of a reasonable cost of a local sewer; the remainder being spread upon all real estate

of the district benefited.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1109; Dec. Dig. 466.]

Department 2. Appeal from Superior Court, Kitsap County; Everett Smith, Judge. Proceedings by the City of Bremerton, a municipal corporation, for the establishment of the Trunk Sewer, Local Improvement District No. 62. The Triangle Traders, a domestic corporation, and others, filed objections to

a reassessment.

The objections being overruled the objectors appealed to the superior court, and from a judgment there overruling their objections, they appeal. Reversed and remanded, with instructions to sustain objections.

Frank P. Lewis and Louis Henry Legg, both of Seattle, for appellants. Thomas Stevenson, of Bremerton, for respondent.

report to the council at or before the time fixed for the hearing the estimated cost and expense of the improvement. The resolution was, however, published in but one issue of the official newspaper of the city, whereas the statute distinctly prescribed that it should be published in two of such issues. Laws 1911, pp. 444, 449, §§ 10, 16 (3 Rem. & Bal. Code, §§ 7892-10, 7892-16).

On September 9, 1912, the city council by ordinance ordered the sewer to be constructed. The ordinance described with sufficient certainty the routes along which the sewer was to be constructed, contained an estimate of the cost thereof, and provided that the cost should be borne entirely by the property benefited, and that no part thereof should be charged to the general fund of the city. The city council, however, did not therein "establish and fix the boundaries of the district to be assessed for such improvement," although the statute specifically provides that they shall do so. Laws 1911, p. 449, § 16; Id. § 7892-16. Nor did they in this ordinance, or in any subsequent ordinance, adopt “map, plans and specifications" for the improvement, notwithstanding this also is a specific Laws 1911, p. requirement of the statute. 449, § 16; Id. § 7892-16. In providing for the distribution of the assessment over the property benefited the city council in the ordinance provided that a specific sum should be assessed against the property lying between the termini of the sewer and back to the middle of the blocks lying on each side thereof, and that the balance of the cost and expense should be assessed against the remainder of the property in the dis

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

trict, notwithstanding the statute specifically neer submitted a final estimate of the cost of provides that:

"In distributing such assessments, there shall be levied against the property lying between the termini of the improvement and back to the middle of the blocks along the marginal lines of the streets or areas improved, such amounts as would represent the reasonable cost of a local sewer and its appurtenances, * * * and the remainder of the cost and expense of such improvement shall be distributed over and assessed against all of the property within the bounds of said entire district in accordance with the special benefits conferred thereon and in proportion to area." Laws 1911, p. 449, § 15; Id. $7892-15.

the work. This showed estimates according to the terms of the contract up to May 5, 1913, and from thence on the actual cost of the work as paid by the city, plus 10 per cent. on the amount thereof to the contractor; the aggregate totalling $40,927.63.

On May 9, 1914, the city council passed a resolution giving notice of its intention to amend the original ordinance authorizing the construction of the sewer, and on April 13, 1914, passed an ordinance to that effect. The material change was the enlargement of the After the passage of the ordinance the city district by the inclusion therein of property council directed the clerk to advertise for not described in the original resolution of inproposals for the construction of the sewer. tention to order the work. The amended orSeveral bids were submitted in response to dinance, like the original ordinance, provided the advertisement, and that of one L. Y. Stay- for the assessment of named sums upon the ton was accepted as the lowest and best bid. half blocks abutting upon the sewer between His bid was submitted on the unit basis; that the termini thereof, and for the assessment is, at certain prices per lineal foot for the of the balance of the cost to the remainder of sewer pipe in place based upon dimensions, the property in the assessment district. Nocertain fixed prices for catch basins and man- where in the ordinance is it recited that the holes complete, and certain fixed prices for fixed sums directed to be levied on such abutthe necessary connecting wyes. On October ting property "would represent the reason15, 1912, a contract for the work was entered able cost of a local sewer and its appurtebetween the city and Stayton by the terms of nances," nor is it recited that such sum would which Stayton agreed to perform the work equal that sum, plus the proportional share according to the plans and specifications re- of the property for the balance of the cost. ported by the city engineer at the prices An assessment was levied pursuant to the stated in his bid; the estimated cost of the ordinance, to which objections were filed by sewer completed at the prices named being certain of the interested property holders. $21,988.10. The objections were disallowed by the council. Appeal therefrom was taken by certain of the objectors to the superior court, which, after a hearing, entered a judgment setting the assessment aside and remanding the cause to the city council, with instructions to reassess the property "in the manner and mode provided by law."

The contractor immediately began the work of construction, and proceeded therewith until some time in April, 1913, when he ceased work thereon for some reason not clearly explained in the record. On May 5, 1913, the city engineer, at the direction of the city council, notified the contractor to resume the work within five days thereafter. The contractor failed so to do, and the council on May 12, 1913, by resolution, declared his contract forfeited, notice of which was given to the contractor, to his bondsmen, and to a banking corporation to whom the contractor had assigned the sums to become due him under the contract. This led to a meeting of the parties interested, and to an agreement between them by which the city, in consideration of certain changes made in the original contract with reference to the mode of payment to the contractor and certain waivers of claims made by the other parties, agreed to rescind the resolution annulling the contract and to permit the contractor to complete the contract according to its terms as modified by the agreement. The resolution referred to was thereupon rescinded, and the contractor permitted to prosecute the work to its completion. The agreement thus entered into permitted the city to pay directly to the laborers and materialmen for the labor and material used in the construction of the sewer, and the subsequent liabilities for labor and material incurred by the contractor

On the remand of the cause to the city council, that body by resolution ordered a reassessment of the property. The resolution did not specify with any minuteness how the reassessment was to be made, and the officer selected for that duty seems to have spread the assessment over the property much the same as before. He levied a fixed proportion of the costs on the property between the termini of the sewer and bordering thereon, and distributed the remainder over the property included within the so-called enlarged district. Exception was again taken to the assessment roll by interested property holders, which the city council overruled. Appeal therefrom was taken to the superior court, where the objections were again overruled, and the roll confirmed. This appeal is from the order of confirmation in the superior court. In this court the appellants have assigned numerous errors, all of which are pressed upon us with earnestness and ability. We shall not, however, notice them in detail, nor in the order in which they are presented, as they suggest certain general questions which can best be noticed in their general

[1] The first assignment to be noticed rais-assessment, to order a reassessment, and es the contention that the city council was within the province of the city council to without jurisdiction to order a reassessment make such an assessment notwithstanding of the property because of the numerous de- some of the errors in the original proceedings partures from the statute made by the city may properly be termed jurisdictional. council in the original proceedings under [2] The next contention is that the conwhich the trunk sewer was constructed. tractor was allowed for the finished work a Most of these departures we have heretofore greater sum than that to which he was justpointed out, and, without enumerating fur-ly entitled under the contract, and that the ther, it may be conceded that they justify sum attempted to be assessed against the holding invalid the original assessment. We property of the district is because thereof are constrained to hold, however, that they too large. The evidence chiefly relied upon were not sufficient in effect to prevent the to support this contention is the report of court from directing a new or reassessment the city engineer. This, as we have said, of the property. In the early case of Fred- allowed the contractor the sum earned under erick v. Seattle, 13 Wash. 428, 43 Pac. 364, the contract up to a certain point in the work construing the statute of 1893, which pro- according to the prices fixed per unit for the vided for a reassessment to pay the cost of pipe in place and from thence on the actual a public improvement where the original as- cost of the work with 10 per cent. added. sessment had been held void, it was held that But as we read the record, the city did not the "Legislature intended to provide for a re- settle with the contractor on the basis of the assessment in all cases where the assessment engineer's report. During the course of the had been held to be void, whether for irregu- work a condition was encountered not forelarities or for want of prerequisites which seen or contemplated when the contract was went to the jurisdiction of the council to entered into, which necessitated changes in levy the assessment and to order the work the original plans and which materially indone," and that such legislation was constitu- creased the cost of the work. In the final tional. The principle on which the case rests settlement this condition was taken into has been reannounced by us in many subse- consideration, and the contractor paid upon quent cases, and is now established law in the basis of the contract price with an allowthis state. Cline v. Seattle, 13 Wash. 444, 43 ance for the extra services; the result being Pac. 367; Stephens v. Spokane, 14 Wash. a less allowance than the engineer returned, 298, 44 Pac. 541, 45 Pac. 31; Ryan v. Sum- but an increase over the contract price if ner, 17 Wash. 228, 49 Pac. 487; Franklin calculated alone upon the basis of the bid Savings Bank v. Moran, 19 Wash. 200, 52 for units in place. Clearly there was no Pac. 858; Bellingham Bay Imp. Co. v. New error in this. The contractor was entitled to Whatcom, 20 Wash. 231, 55 Pac. 630; Lewis this extra compensation, not only on the v. Seattle, 28 Wash. 639, 69 Pac. 393; Wald- principle of natural justice, but by the exron v. Snohomish, 41 Wash. 566, 83 Pac. 1106; press terms of the contract itself which made Kuehl v. Edmonds, 85 Wash. 307, 148 Pac. 19; provision therefor. Whether the amount Johnson v. Seattle, 53 Wash. 564, 102 Pac. allowed is excessive or otherwise is not open 448; Hapgood v. Seattle, 69 Wash. 497, 125 to inquiry in this proceeding. No fraud or Pac. 965; Allen v. Bellingham, 77 Wash. 469, collusion between the city and the contractor 137 Pac. 1016. in making the settlement is either alleged or proven, and the rule in such cases is that the determination of the amount earned under the contract by the city authorities is conclusive upon the property holders. Elma v. Carney, 9 Wash. 466, 37 Pac. 707; North Yakima v. Scudder, 41 Wash. 15, 82 Pac.

The existing statute relating to assessments for local improvements is fully as broad in its provisions as the statute of 1893. It especially provides for a new or a reassessment whenever the original assessment is for any reason declared void; the part thereof particularly applicable to the present proceeding reading as follows:

1022.

For a like reason there was no error in the ruling of the court in refusing to permit the witness Coe to testify to the cost of the sewer based upon the contract price. Since it was within the power of the city authorities to determine the question of the amount of the cost, the finding of the city authorities upon that question was, as we have said,

"Whenever any assessment for any local improvement in any city or town, whether the same be an original assessment, assessment upon omitted property, supplemental assessment or reassessment, heretofore or hereafter made, has been or may hereafter be declared void and its enforcement [refused] by any court, or for any cause whatever has been heretofore or hereafter may be set aside, annulled or declared void by any court, either directly or by virtue of any decision of such court, the council of such city or town shall make a new assessment or reassessment upon the property which has been or will be benefited by such local improvement, based upon the actual cost of such improvement as described in the original resolution of the at the time of its completion." Laws 1911, p. 469, § 42 (3 Rem. & Bal. Code, § 7892-42).

It was therefore within the province of the trial court, on setting aside the original

conclusive.

[3] The property of certain of the objectors was not included in the assessment district

city council wherein it declared its intention to order the construction of the sewer, but was brought in under the amendatory ordinance providing for an enlarged district. It

tion of lateral sewers be sewered or drained through the trunk sewer as constructed, it is subject to assessment to pay the cost, regardless of the question whether the attempt of the city council to include it in the original assessment district was effective or otherwise.

is the contention of the appellants owning such property that it was improperly included therein, as the statute relating to the creation of assessment districts to pay the cost of constructing trunk sewers does not contemplate the creation of enlarged districts. Since the statute relating to the construction of a trunk sewer (Laws of 1911, p. [5] Finally, the appellant contends that the 449, § 15; 3 Rem. & Bal. Code, § 7892—15) reassessment was made upon a fundamentally provides that any district created to bear wrong basis, and this objection we are conthe assessment for such purpose "shall be strained to hold is well taken. As we have outlined in conformity to topographical con- said, after the original assessment had been ditions, and shall include as near declared invalid by the judgment of the as may be all the territory which can be superior court, the city council directed a new sewered or drained through such trunk sewer or reassessment to be made by passing 'a and the subsewers connected thereto," it resolution to that effect. The statute prowould seem that any district created in con- vides (Laws 1911, p. 469, § 43; Id. § 7892-43) formity with the statute could not be that the city shall proceed with any such enlarged, as such enlargement must of neces- assessment "by passing an ordinance ordering sity embrace property not capable of sewer- the same." Elsewhere in the statute the age or drainage through the sewer. But wording makes it clear that the Legislature we think that, if assessment district original- did not use the terms "resolution" and "orly created did not include all of the property dinance" interchangeably. Nowhere is it susceptible of sewerage or drainage through said that a particular action may be taken the contemplated sewer, the city could by by "resolution or ordinance," but in every proper proceedings so enlarge the district as instance specific directions are given as to to include the omitted property, and it would the manner in which action shall be taken; make but little difference what terms it em- that is, the direction is that the particular acployed to denominate the new district. tion shall be taken by resolution or that it shall be taken by ordinance, not that it may be taken either by resolution or ordinance. There may not be in every instance any clearly discernible reason why the one method should be employed rather than the other, but it is sufficient that the statute so directs, and it is in virtue of the statute that the city is empowered to act in the premises at all. Seemingly also the statute contemplates that the ordinance establish the boundaries of the district to be reassessed, and direct the manner in which the assessment is to be distributed over such district. In this latter respect the direction of the statute should be followed.

[4] But this question is of no moment in the present controversy. This was a reassessment, made after the court had declared the original assessment invalid and had ordered such reassessment to be made. In such cases the city is specially authorized by statute (Laws of 1911, p. 469, § 42; Id. $ 7892-42), "to assess or reassess all property which the council shall find to be specially benefited, whether or not such property so to be assessed or reassessed was included in the original assessment district." It is also provided (section 43):

"The fact that the contract has been let or that such improvement shall have been made and computed in whole or in part shall not prevent such assessment from being made, nor shall the omission, failure or neglect of any officer or officers to comply with the provisions of law, the charter or ordinances governing such city or town, as to petition, notice, resolution to improve, estimate, survey, diagram, manner of letting contract or execution of work, or any other matter whatsoever connected with the improvement and the first assessment thereof, operate to invalidate or in any way affect the making of any assessment authorized in the preceding section: Provided, that such assessment shall be for an amount which shall not exceed the actual cost and expense of the improvement, together with the accrued interest thereon, it being the true intent and meaning of this act to make the cost and expense of local improvements payable by the property specially benefited thereby, notwithstanding the proceedings of the council, board of public works or other board, officer or authority of such city or town may be found irregular or defective, whether jurisdictional or otherwise; when such assessment is completed, all sums paid on the former attempted assessment shall be credited to the property on account of which the same were paid." 3 Rem. & Bal. Code, § 7892-43.

If, therefore, the property of these objec

[6] It should be directed that there be levied against the property lying between the termini of the improvement and back to the middle of the blocks along the marginal lines of the street or areas improved, such amounts as would represent the reasonable cost of a local sewer and its appurtenances, and the remainder of the cost and expense distributed over and assessed against all of the property within the bounds of the entire district in accordance with special benefits and in proportion to area. This requirement of the statute is neither unreasonable nor unjust, and the city should not undertake to amend it. The abutting property required to bear the extra expense has the immediate benefit of the sewer, and is not thereafter liable to assessments for lateral or local sewers. The remaining property is not so situated.

As to it the sewer is not of immediate use, and cannot be made so without the additional expense of the construction of

must subsequently bear. In the end the [ 5. CRIMINAL LAW 783 TRIAL-INSTRUCburden equalizes. TION-PURPOSE OF EVIDENCE.

Since, therefore, the new or reassessment was not ordered by ordinance as the statute requires, and since the assessment was not spread over the assessment district in the manner directed by the statute, we are constrained to hold the assessment invalid.

The order of the trial court confirming the assessment is reversed, and the cause remanded, with instructions to sustain the objections without prejudice on the part of the city to levy a new assessment.

the evidence tended to show several offenses, In a prosecution for statutory rape, where charges that unless it was proved beyond reasonable doubt that the defendant committed the act which the state had elected to rely on, then the jury should find defendant not guilty, and that any testimony as to any other acts should be disregarded, except as it was corroborative of the act upon which the state had elected to rely, sufficiently instructed the jury that evidence of other acts than that relied on could be considered only as corroborating prosecutrix.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1734, 1735, 1872-1876; Dec. Dig. 783.]

· MORRIS, C. J., and ELLIS and CHAD- 6. CRIMINAL LAW 1172-APPEAL ANd EnWICK, JJ., concur.

STATE v. HARRIS. (No. 3716.) (Supreme Court of Montana.

Dec. 27, 1915.) 1. CRIMINAL LAW 678-TRIAL-ELECTION BETWEEN OFFENSES-TIME.

In a prosecution for statutory rape, where the evidence tended to show several offenses, the action of the court, though earlier requested, in failing to require the state to elect until the close of its case, was not erroneous.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1580-1583; Dec. Dig. 678.]

UTE.

Under Rev. Codes, § 9147, declaring that the charge must be a statement of the facts constituting the offense in such language as to enable a person of common understanding to know what is intended, a defendant charged with statutory rape can be required to make defense only against a single act, and where the evidence tends to show the commission of several offenses he is entitled to have the jury informed, either before entering upon his defense, or in the formal instructions, that evidence of other acts than the one the state elects to rely on must be considered only for the secondary purpose of corroborating the prosecuting witness.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1580-1583; Dec. Dig. 678.] 4. CRIMINAL LAW 1186-APPEAL AND ERROR DISREGARD OF IRREGULARITY STAT

ROR-PREJUDICIAL ERROR-INSTRUCTION.

In a prosecution for statutory rape, where there was no question but that the offense had been committed within the period of limitations, the submission of an instruction relating, in its latter part, to the period of limitation applicable, but from which, under other instructions, the jury could not have understood that they could convict for any act other than that on which the state had elected to rely, was not prejudicial error.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169; Dec. Dig. 1172.]

Appeal from District Court, Yellowstone County; Geo. W. Pierson, Judge.

D. H. Harris was convicted of crime, and from the judgment and an order denying his motion for new trial, he appeals. Affirmed.

H. C. Crippen, of Billings, for appellant. J. B. Poindexter and C. S. Wagner, all of Helena, for the State.

BRANTLY, C. J. The defendant, charged by information with statutory rape by having unlawful sexual intercourse with Vivian Brooke, a female under the age of 18 years, was convicted and sentenced to a term of service in the state prison. He has appealed from the judgment and an order denying his motion for a new trial.

The charge in the information is that the crime was committed on December 1, 1914. The evidence of the prosecuting witness disclosed that the first act of sexual intercourse between the defendant and herself, occurred on or about August 1, 1914, in the outskirts of the city of Billings. After the witness had testified to a similar act which she said had occurred about two weeks later, counsel for defendant objected to evidence tending to establish any act other than the first, and Under Rev. Codes, § 9415, providing that on suggested that the county attorney be reappeal the court must give judgment without regard to technical errors or defects or to excep-quired to elect upon which act he would ask tions which do not effect the substantial rights for a conviction. The objection was overrulof the parties, in a prosecution for statutory ed and the suggestion disregarded. The witrape, where the evidence tended to show several offenses, but the court, though requested, did not require the state to elect until the close of its case, at most the matter was not more than an irregularity to be disregarded on appeal.

UTE.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3215-3219, 3221, 3230; Dec. Dig. 1186.]

ness then, without further objection, testified to several acts after that time, covering the period until January 1, 1915, the exact date at which any one of them occurred and attendant circumstances not being stated, except as to one which she stated had occurred in the defendant's barber shop in Billings on

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