Opinion of the Court-STILES, J. [2 Wash. such proposed change shall have been served upon the owner or his agent, if such owner or agent can be found within the city, and if not so found, then a notice of such proposed change in the assessment roll must be first published for at least three days in a daily newspaper of the city; and the council may adjourn from time to time, if necessary, until the equalization of such assessment roll shall be completed. "SEC. 7. That as soon as practicable after such assessment shall be equalized, and the nature and extent of assessment districts shall have been fixed, and the cost of the improvement shall have been ascertained, the council may by an order, fix the rate of assessment for such district, or for each of such districts, as the case may be, so as to raise the necessary amount to pay for such improvement in accordance with the provisions of this ordinance." On July 31, 1890, the city clerk, according to the return, commenced the publication in the Seattle Evening Times of a notice of the filing of the South Twelfth street improvement assessment roll, and that on Friday evening, August 15th, the council would sit to hear complaints and equalize the assessment; but there is no proof that the notice was published for ten consecutive days, or that it was published at all, as required by the last clause of § 5. The record does not show that the council sat August 15th, or that the matter of this assessment was considered; nor did anything further transpire in the matter until January 14, 1891, when ordinance No. 1595 was passed, as follows: "ORDINANCE NO. 1595. "AN ORDINANCE to provide for the levy of the rate per cent. for the improvement of South Twelfth street from Yesler avenue to Stacy street, in the city of Seattle. "Be it ordained by the city of Seattle as follows: "SECTION 1. That a tax of 542 mills per dollar be levied on the real property, excluding improvements, in the district provided for by the ordinance No. 1413, to pay the cost of grading and sidewalking of South Twelfth street from Yesler avenue to Stacy street, in the city of Seattle. "SEC. 2. The city comptroller and assessor is hereby July, 1891.] Opinion of the Court-STILES, J. empowered, authorized and directed to extend said rate per cent. on the property within the district fixed by ordinance No. 1413, and to collect the same according to law. "SEC. 3. This ordinance shall take effect and be in force from and after its passage, approval and publication." In the mean time the charter of October 1, 1890, had been adopted, and an entirely new system of street assessments provided, under which the expense of making street improvements was to be levied, not according to the value of the property abutting, but according to its frontage on the improvement. Charter, art. 8, § 7. Under the old charter (§ 10) the lien of assessments did not attach until the levy was made. We are therefore clearly of the opinion that the new charter was, from the date of its adoption (October 1, 1890), the law of the case, and that the assessment in 1891, according to value, was unauthorized and void. Returning, now, to the question of the notice, it was argued that, even if notice was necessary, the recital by the city clerk in his return that the notice was advertised in the Seattle Evening Times-"date of first publication, July 31, 1890”—was sufficient basis for the court to presume that the notice was published for ten days, and that proof of the fact had been made when the council proceeded to make its levy, as public officers are presumed to proceed according to law. Notice was absolutely necessary; for, although the statute did not require it, it is a general principle of law, too well known for comment, even, that in every proceeding whereby these special assessments are levied it is necessary as a constituent of due process of law; besides which, the ordinance No. 737 did require it in terms. When the council met on the 15th day of August (if it did meet then), and the matter of this assessment came up, the first question before it was, had the notice been published for ten successive days? It could know that fact in no other way than by the certificate or affidavit Opinion of the Court-STILES, J. [2 Wash. of the publisher; and until that document lay before it, it had no jurisdiction to proceed. Gatch v. City of Des Moines, 63 Iowa, 721 (18 N. W. Rep. 310). Presumptions are not admissible in cases of this kind, where the property of the citizen is taken, and where jurisdiction is acquired only by strict compliance with the law. But it is urged that the appellant was barred of his right to contest the lien upon his property because he did not pay into court the amount assessed to him, in accordance with § 8, art. 15, of the new charter. That section reads as follows: "No action shall be brought or maintained in any way to test or question the validity of any assessment, proceeding, certificate or tax deed unless the plaintiff shall first tender and pay into court the amount of the assessed tax, together with all interest, penalties, costs and damages thereon." It occurs in the article devoted to the duties of the corporation counsel and city attorney, without connection with or relation to any other portion of the article. It is a somewhat curious provision, but is not unprecedented in legislation. Wilson v. McKenna, 52 Ill. 48; Reed v. Tyler, 56 Ill. 292. We can hardly agree that in the city of Seattle there is to be no way of avoiding the payment of an illegal assessment except by paying it, as we do not believe that the constitutional authority delegated to cities of the first class to enact their own charters contemplates such a sweeping deprivation of ordinary legal rights. The property asses-sed is abundant security for the assessment, if it is a valid one; and, if it is invalid, the owner should be put in in no such disadvantageous position. According to these views, the levy and all proceedings in the matter of the South Twelfth street assessment, as far back as and including the notice, must be quashed; but, as the improvement was legally ordered, this disposition of the matter will be July, 1891.] Opinion of the Court-STILES, J. without prejudice to the city to make a new assessment and levy, if it can be done, under the charter of 1890. Judgment reversed, and cause remanded to the court below for proceedings in accordance herewith. ANDERS, C. J., and DUNBAR and Scorr JJ., concur [No. 268. Decided July 10, 1891.] CRIMINAL LAW- APPEAL-CUSTODY OF PRISONER. Under Laws 1891, p. 350, ?? 40, 41, when a defendant convicted in a criminal action gives notice of appeal, he is entitled to remain in the county jail pending appeal, if he cannot procure bail, in a bailable offense, and ought not to be transported to the penitentiary. The sheriff of the county where the prisoner was tried is his rightful custodian, and the warden of the penitentiary should, upon demand, deliver the prisoner to the sheriff. Original Application for Habeas Corpus. John C. Stallcup, for petitioner. The opinion of the court was delivered by STILES, J.-The petitioner was convicted of the crime of grand larceny in the superior court of Pierce county, and on the 24th day of June, 1891, was sentenced to be imprisoned in the state penitentiary at Walla Walla for the term of three years. He immediately gave notice of an appeal to this court, and his bail was fixed at $5,000. But on the next day he was transported to Walla Walla, and delivered to the custody of the warden of the penitentiary, where he has since been confined. He seeks, by a writ of habeas corpus, to be released from the custody of the war 2 552 3 207 den. By § 40 of the act of March 9, 1891 (Laws 1891, p. 350), an appeal by the defendant in a criminal action stays the execution of a judgment of conviction. By § 41 of the same act, upon giving the bail to be fixed by the court, this petitioner was entitled to be released entirely from confinement until the determination of his case on appeal. In the mean time his notice of appeal entitled him to remain in the county jail if he did not procure bail. It appears that there is some question as to the authority of the warden to return the prisoner to the jail of Pierce county, but there is no question about that of the sheriff of Pierce county, who is his rightful custodian, to go and get him and return him there. Therefore the order will be that the warden, upon demand of the sheriff of Pierce county, within five days after service of the order upon him, deliver the prisoner to the sheriff, and that, in default of such demand, the warden release and discharge him forthwith. A copy of the order to be forthwith served on the sheriff. ANDERS, C. J., and DUNBAR, SCOTT, and Hoyt, JJ., concur. 2 552 4 819 27* 449 30*1061 2 552 7 500 7 508 27* 449 35 375 | 35* 383 [No. 185. Decided July 14, 1891.] JOHN G. LYBARGER V. THE STATE OF WASHINGTON. LAW INFORMATION CONSTITUTIONAL LAW EX POST FACTO A law changing the mode of procedure in prosecutions for crime from an indictment to an information, does not contain any of the elements, or respond to any of the accepted definitions of an ex post facto law, although the offense under prosecution may have been committed prior to such change in the law. Under Code 1881, 278, providing that misconduct of the jury shall be shown by affidavit on motion for new trial, the miscon |