made under and according to said ordinance were valid. It is claimed by them that the assessments were invalid for two reasons: First, that the ordinance under which the proceedings were had was contrary to the statute (1 Hill's Code, § 641); and, second, that it was invalid as being in contravention of the constitutional provision that no person shall be deprived of life, liberty, or property without due process of law. It is admitted by the learned counsel for the respondents that an assessment without notice and an opportunity to be heard would be unconstitutional and illegal, but they insist that the rule is not applicable to the case at bar for the reason that both the statute and ordinance provided for the collection of the assessments by an action in a court of competent jurisdiction. But while it may be that the mode prescribed for collecting these assessments would avoid the constitutional objections raised by appellant, as far as the mere question of notice is concerned, it nevertheless appears to us that the ordinance might well be deemed illegal and invalid on account of a departure from the statute upon which it purports to be based. The section of the statute above mentioned declares that assessments of the character now under consideration shall be made upon the lots and lands fronting upon the streets which are improved for the full depth thereof in proportion to benefits upon the property to be benefited, whereas the ordinance under which the assessments were made provided that the abutting property should be assessed for a distance of 60 feet back from' the street. The real question, however, for us to consider and determine in this action is whether the appellant has brought himself within the provisions of the statute. It appears in the preamble to Ordinance No. 655 that the city had theretofore attempted by action in the superior court to enforce the original assessments upon a portion of the property now in question, and that the assessments were declared illegal and void for certain reasons therein expressed. It also appears from the facts as found by the court that in the case of Thomas & Co. v. City of Olympia, 12 Wash. 465, 41 Pac. 191, in which it was sought to recover the amount of certain city warrants issued for street improvements, the city alleged as one of its defenses to the action that the assessment theretofore made had been declared invalid by this court and the superior court of Thurston county, and that on account of such decisions the city was proceeding at the time the answer was filed to make a new assessment upon the property benefited for the purpose of collecting money to be placed in the special fund out of which the warrants could be paid. Upon this state of facts it would seem that the respondents are in no position to contest the validity of the original assessments, or to successfully defend this proceeding. The city ordinances are, in effect, laws which neither the city nor its coun

cil has any right to disregard. The council has said in the most solemn manner possible that the original assessments upon the streets in controversy were illegal and invalid, and, in accordance with its ordinances, the city has actually caused reassessments to be made upon Union street. The respondents therefore cannot be heard, in disregard of law and the facts appearing of record, to say that they have no right or power to grant the relief prayed for by appellant. In our opinion, the record clearly shows that it is the duty of the respondents to reassess the property benefited by the improvements mentioned in the affidavit for the payment of the cost and expenses thereof. It is apparent that no one can be injured by such reassessment. It was the intention of the city, when the assessment proceedings were originally commenced, that the cost of the improvements should be assessed upon and paid by the property benefited thereby. The improvements have been made in accordance with the original scheme of the city, and it is but just that the cost thereof should be paid accordingly. The judgment is reversed, and the cause remanded, with instructions to issue a writ of mandate commanding the city, its mayor and council, to reassess according to law all of the property abutting on the various streets mentioned in appellant's affidavit, except Union street.

In re VAN ALSTINE et al. (Supreme Court of Washington May 19, 1899.) HABEAS CORPUS-ORDERS REVIEWABLE - ACTION FOR DIVORCE-DISPOSITION OF PROPERTY-PAYMENT INTO COURT-IMPRISONMENT-CONTEMPTSUPPLEMENTARY PROCEEDINGS.

1.2 Ballinger's Ann. Codes & St. § 5826, prohibits, on habeas corpus, any inquiry into the legality of any judgment or process whereby a party is in custody for any contempt, except where the order of commitment is for a contempt on proceedings to enforce the remedy of a party. In an action by a wife for divorce, the husband filed a cross complaint charging that the marriage was procured by fraud of the wife and another, who was made a party. and that thereafter they fraudulently obtained and converted his money. The court found for the husband, and ordered the wife and her co-conspirator to pay the amount into court, and, on their failure to do so, committed them to prison for contempt. 'Held, that such order was reviewable on habeas corpus.

2. 2 Ballinger's Ann. Codes & St. § 5723, authorizes the court, in granting a divorce, to dispose of the property of the parties, but makes no provision as to enforcing its decree by attachment, though section 5722 makes such provision for enforcing orders made pending the action. In an action by the wife, the husband filed a cross complaint praying that the mar riage be annulled because procured by fraud of the wife and another, who was made party, and charging that they fraudulently converted his money. Heid, that the court, on annulling the marriage, had no power to order the money to

be paid into court, and enforce such order by imprisonment.

3. Nor had the court power, under 2 Ballinger's Ann. Codes & St. § 5808 (providing that, when a contempt consists in a refusal to perform an act which a party is able to do, he may be imprisoned), to imprison the wife and her co-conspirator for refusing to obey the order; such statute applying only to acts which the court may legally require a party to perform.

4. Nor was such imprisonment authorized by 2 Ballinger's Ann. Codes & St. c. 7, tit. 29, relating to proceedings supplemental to execution.

Application by Lou Van Alstine and another for habeas corpus, to be discharged from the custody of the sheriff of King county. Granted.

John F. Dore and Charles E. Shepard, for petitioners. Ronald, Ballinger & Battle and Richard Winsor, for respondent sheriff.

GORDON, C. J. In November, 1898, Lou Van Alstine, one of the petitioners herein, instituted an action in the superior court of King county for divorce on the ground of cruelty. The defendant in that action, Con Van Alstine, answered, putting in issue the charges of the complaint, and by a cross complaint alleged that the marriage was procured by fraud, in pursuance of a conspiracy between the plaintiff and Emma Norton (the other petitioner in this proceeding), and other persons therein named, for the purpose of entrapping "some returning Klondiker" and obtaining his money. The cross complaint also charged that, subsequent to the marriage ceremony, plaintiff obtained from the defendant certificates of deposit upon a bank in San Francisco, Cal., amounting in the aggregate to $36,000, by leading and inducing the defendant to believe that the certificates were to be safely kept by the plaintiff, and, having obtained the certificates, the plaintiff proceeded to convert the same to the use of herself and her co-conspirators, and fraudulently retained the proceeds of said certificates, with the exception of $5,000, which defendant had obtained prior to the institution of the action. Defendant asked for an annulment of the marriage and a restitution of the money. On the defendant's petition the other alleged conspirators were made parties defendant to his cross complaint, and, with the exception of one Noyes, who was without the jurisdiction, they were served and appeared in the proceedings. Thereafter an order was entered in the lower court requiring the petitioners to show cause why they should not be required to pay into court the money so alleged to have been procured from the defendant. By arrangement between the parties, it appears that hearing on the return of this order was continued, to be taken up with the main case. Subsequently, and prior to the trial, plaintiff filed her motion to dismiss tue action, which was resisted by the defendant and denied by the court; and, upon the proofs offered by the defendant at the trial, the court proceeded, on February 27, 1899, to

make its findings, conclusions, and decree. The decree is as follows: "Ordered, considered, adjudged, and decreed that the marriage between the plaintiff, Lou Van Alstine, and the defendant and cross complainant, Con Van Alstine, herein, be, and the same hereby is, annulled, set aside, and held for naught. And it is further ordered and adjudged that the plaintiff, Lou Van Alstine, alias Lou Spear, and the defendant Emma Norton be, and they hereby are, required, directed, and ordered that they, within five days, bring into and deposit in the registry of this court the sum of thirty thousand nine hundred and sixty-five dollars, the proceeds of certain certificates of deposit mentioned in the cross complaint of the cross complainant and in the findings of fact in this action. It is further ordered, considered, adjudged, and decreed that said sum of money so ordered to be deposited as aforesaid be, and the same is hereby, decreed to be the sole property of the said defendant and cross complainant, Con Van Alstine, and is awarded to him as his property, and that, upon being paid into the registry of this court in pursuance of the order herein made, the same shall be paid over to the defendant herein, Con Van Alstine; and it is further ordered, considered, adjudged, and decreed that the said cross complainant recover of and from the said plaintiff and the said Emma Norton, and each of them, the sum of thirty thousand nine hundred and sixty-five dollars, and his costs herein. The petitioners having failed to comply with the order requiring the payment of the money into court, on March 6, 1899, upon the affidavit of the defendant, an order was made by the court requiring them to show cause why they should not be committed for contempt. In response to this latter order the petitioners made answer, in which they set forth that they had not, nor had either of them, from the time of the commencement of the action for divorce, possession, custody, or control of any of the proceeds of the certificates referred to; that they were unable to produce the same, and wholly unable to comply with the decree of the court in that regard; also, that execution had been issued, and a levy made upon certain personal property of the petitioners, which was and is held by the sheriff for the purpose of selling the same to apply on such judgment and decree. The court thereupon found that it was within the power of the petitioners to comply with the previous order and decree of the court, adjudged that they were in contempt, and ordered that they "be confined and imprisoned in the county jail of King county, state of Washington, until they shall comply with and have performed the provisions of the decree; that is to say, until they, the said Lou Van Alstine and Emma Norton, shall have brought into and deposited in the registry of this court said sum of thirty thousand nine hundred and sixty-five dollars, the proceeds of said cer

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tificates of deposit." The petitioners thereupon filed in this court a petition praying for a writ of habeas corpus, directed to the sheriff, restoring them to their liberty.

It appears from the record that an appeal has been taken from the original judgment and decree, and is now pending; and in view of this fact, and the importance of some of the questions necessarily involved in the consideration of the appeal, we have considered it wiser to refrain from discussing such questions in the present proceeding.

We think the petitioners are entitled to a discharge upon the broad ground that the court had no power to require them to pay the money into court, and thereafter enforce that judgment by imprisonment. In resisting the present application, counsel for the husband earnestly contend that the lower court having had jurisdiction of the parties and of the subject-matter, and having adjudged them guilty of contempt, all that this court can do, in habeas corpus proceedings, is to remand the petitioners, and let them pursue the proper course for the correction of errors, if any exist, in the proceedings. And their main argument, both orally and in their brief, was and is directed to sustaining that contention. But we think that our statute upon habeas corpus shows the fallacy of this contention. Section 5826, 2 Ballinger's Ann. Codes & St., is as follows: "No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge him when the term of commitment has not expired, in either of the cases following: (1) Upon any process issued on any final judgment of a court of competent jurisdiction; (2) for any contempt of any court, officer or body having authority in the premises to commit; but an order of commitment, as for a contempt upon proceedings to enforce the remedy of a party, is not included in any of the foregoing specifications." The so-called contempt with which the petitioners are charged is a civil contempt. It consists in failing to do something which the court has ordered to be done for the benefit of an opposing party in a civil action. Rap. Contempt, § 21. The language of the last portion of subdivision 2, viz. "but an order of commitment, as for a contempt upon proceedings to enforce the remedy of a party, is not included in any of the foregoing specifications," makes an exception to the rule for which counsel contend, and the present application falls squarely within that exception. Here is a decree for money,-a decree analogous to a money judgment at law, which may be enforced by process against property. It differs from a decree for the recovery of something in specie, of which a party has been deprived, and for the loss of which compensation in damages cannot be made, or requiring the performance of some specific act, other than the payment of money, which it is the duty of a party to perform. The petitioners were not officers of the court, and the money

is not required to be paid from a fund in respect to which they stand in the relation of trustees. Story, Eq. Jur. § 839 et seq. It is unlike an order for expenses or suit money in an action for divorce, which, by authority of the statute (2 Ballinger's Ann. Codes & St. § 5722), may be enforced by attachment. And,

in rendering this decree for the amount found due, the court had no more power to direct it to be deposited. with the clerk, and to enforce that order by imprisonment, than it would have in a law action based upon the same state of facts. Carlton v. Carlton, 44 Ga. 216; Clements v. Tillman, 79 Ga. 451, 5 S. E. 194. In the last case cited the court say: "But if a court of equity should render a simple decree for money, on a simple money verdict, a decree which it may now enforce by the ordinary common-law process against property, the failure to pay the decree would not be a contempt, nor could compulsory process against the person of the party in default be resorted to to enforce payment.

* 'No jurisdiction to compel the payment of an ordinary money demand, unconnected with such peculiar equities, ever existed in chancery courts, nor had they the power to compel such payment by punishing the refusal to pay under the guise of contempt.'" The statute (2 Ballinger's Ann. Codes & St. § 5723) which authorizes the court, in granting a divorce, to make disposition of the property of the parties, does not give the court jurisdiction to enforce its decree by attachment, although that power is expressly given by the preceding section (5722) for the enforcement of orders made while an action is pending. The effect of the decree of nullity in the present case was to leave the property rights of the parties unaffected by the nominal marriage. Brown, Div. p. 180. That the parties were nominally married is therefore a circumstance of no controlling importance in determining the power of the court to enter the decree in question. The case does not fall within section 5808, because that section can only be held to apply to acts which the court may legally require a party to perform. It was enacted for the purpose of enabling the court to enforce obedience to a lawful judgment or decree. Nor does the case fall within the provisions of chapter 7, tit. 29, 2 Ballinger's Ann. Codes & St., relating to proceedings supplemental to execution; assuming, without deciding, that the provisions of that chapter do not conflict with section 17 of article 1 of the constitution of this state, providing that "there shall be no imprisonment for debt except in the case of absconding debtors."

We conclude that the superior court of King county was without power to require the petitioners to pay into court the money decreed to be due the defendant, and to enforce its payment by imprisonment. In addition to the authorities already cited, we think that this conclusion is sustained by the following authorities: State v. Start, 7 Iowa, 501; Hos

ack v. Rogers, 11 Paige, 603; In re Bingham, 32 Vt. 329; In re Leach, 51 Vt. 630; Goodwillie v. Millimann, 56 Ill. 523; Rap. Contempt, 17; Am. & Eng. Enc. Law (2d Ed.) p. 38, and authorities there cited. The petitioners are entitled to be discharged, and it is so ordered.

REAVIS, DUNBAR, and ANDERS, JJ., concur. FULLERTON, J., concurs in the result.

(21 Wash. 99)

STATE ex rel. OLMSTED, Mayor, v. MUDGETT, County Treasurer. (Supreme Court of Washington. April 22, 1899.)

CONSTITUTIONAL LAW TAXATION COUNTIES COMPENSATION FOR COLLECTION OF TAXES -SPECIAL ASSESSMENTS.

1. Laws 1897, p. 77 (Act March 10, 1897), authorizing the legislative body of a city of the first class to certify its assessments for street improvements to the county treasurer of the county in which it is situated for collection, and directing him to collect them, without providing additional compensation therefor, does not violate Const. art. 7, § 2, requiring equality and uniformity, as requiring taxpayers whose property is not benefited to bear the cost of collecting the assessments; the constitution being intended to secure uniformity and equality in the mode and rate of assessment, and not to restrict the power to direct the expenditure of funds collected by taxation.

2. In the absence of a showing to the contrary, it will be presumed that Laws 1893, p. 167, providing for the payment of $1,000 annually to a county by a city of the first class situated therein, for collecting city taxes, allows ample compensation for collecting all taxes, including special assessments for street improvements.

Appeal from superior court, Spokane county; William E. Richardson, Judge.

Mandamus by the state of Washington, on the relation of E. D. Olmsted, individually and as mayor of the city, of Spokane, against George Mudgett, as treasurer of Spokane county, state of Washington, to compel collection of special assessments. From order overruling demurrer to alternative writ, and directing peremptory writ, respondent appeals. Affirmed.

John A. Pierce, for appellant. A. G. Avery, for respondent.

FULLERTON, J. This is a proceeding in ma Camus instituted by the relator in the superior court of Spokane county against George Mudgett, as county treasurer of that county, to compel him, as such treasurer, to collect a special assessment levied to pay the costs and expenses incurred in making a street improvement in the city of Spokane, and charged against certain real property therein, found to be specially benefited by the improvement. In answer to the alternative writ served upon him, the county treasurer demurred on the ground "that neither the affidavit, application, nor writ state facts sufficient to constitute a cause of action." The

lower court overruled the demurrer, and, upon the treasurer refusing to plead further, ordered that a peremptory writ of mandate issue. From that order the treasurer appeals to this court.

The contention of appellant here is that the act of March 10, 1897 (Laws 1897, p. 77), in so far as it authorizes the legislative body of a city of the first class to certify its assessments for street improvements to the county treasrer for collection, and directs the county 'reasurer to collect the same, is unconstitutional and void, for the reason that it provides no method for reimbursing the county for the cost the county will be compelled to expend in collecting such assessments. The particular provision of the state constitution pointed out by the appellant as being violated by the act in question is section 2, art 7. He argues that the effect of the act is to compel the general taxpayer of the county, whose property is not benefited by the special improvement, to bear the cost of collecting these assessments, and thus taxation is rendered unequal and ununiform, within the meaning of the section cited. We are unable to agree with the appellant in his construction of this provision of the constitution. This section was not intended as a restriction upon the power of the legislature to direct the purposes to which money collected by taxation might be expended, but was intended to secure equality and uniformity in the mode and rate of assessment and taxation, -the means employed to supply the treasury. Whether legislation of this character is obnoxious to the constitution has been decided by this court adversely to the appellant's contention. In State v. Carson, 6 Wash. 250, 33 Pac. 428, we held constitutional the act of March 9, 1893 (Laws 1893, p. 167), which made the county treasurer of a county in which there is a city of the first class ex officio tax collector of all taxes levied by such city, other than special assessments and special taxes for local improvements. It is true, that act provided that the city should pay the county treasurer for such services a salary of $500, and to the county $1,000 per annum for clerk hire. The case, however, was not made to depend upon this fact, nor do we think it ought to affect the principle decided. But, conceding it material, it would not change. the result in the present case. A city of the first class is now required by law to pay to the county $1,000 per annum for services rendered it by the county in the collection of taxes. This sum, especially in the absence of a showing to the contrary, will be presumed by the courts to be ample compensation for all such services. See Laws 1895, p. 407; Mudgett v. Liebes, 14 Wash. 482, 45 Pac. 19. The cases cited are decisive of the one at bar, and, as we are satisfied with the rule therein announced, the judgment of the lower court will be affirmed. Affirmed.

GORDON, C. J., and REAVIS, ANDERS, and DUNBAR, JJ., concur.

(21 Wash. 108) STATE ex rel. MCINTYRE v. SUPERIOR COURT OF SPOKANE COUNTY. (Supreme Court of Washington. April 26, 1899.) MANDAMUS-WHEN LIES-OTHER ADEQUATE REM

EDY-SUPREME COURT-JURISDICTION.

1. Mandamus will not issue to compel the superior court to take jurisdiction of an appeal from a justice's court which it has dismissed because it erroneously supposed itself without jurisdiction, where there is an adequate remedy by appeal.

2. Under Const. art. 4, § 4, vesting the supreme court with original jurisdiction of mandamus to state officers, and providing that its appellate jurisdiction in civil actions shall extend only to cases where the amount involved exceeds $200, the supreme court has no jurisdiction to compel a superior court to take jurisdiction of an appeal from justice court, in which the amount involved is less than $200. Anders, J., dissenting.

Application by the state, on the relation of Catherine McIntyre, for writ of mandate to the superior court of Spokane county, to compel defendant to take jurisdiction of an appeal from justice's court. Denied.

Hamblen & Lund and Samuel R. Stern, for relator. E. H. Belden, for defendant.

DUNBAR, J. In November, 1897, one Louis S. Cohn recovered judgment against J. M. McIntyre, husband of the relator, in the justice court in Spokane county, Wash., for the sum of $93.60 and costs. Thereafter an execution was duly issued out of said justice court upon the judgment so recovered, by virtue of which a levy was made upon property claimed by relator as her separate property. Thereafter the relator filed her affidavit of claim under the statute, in which affidavit it is stated that the property levied upon is of the value of $250. The issues raised by said affidavit having been tried before the justice issuing said execution, and a decision adverse to relator having been made, an appeal was regularly prosecuted therefrom to the superior court of Spokane county. A motion to dismiss said appeal for want of jurisdiction was sustained by the court, for the reasons that the value or amount of the property claimed by relator exceeded the sum of $100, and that, the justice of the peace having had no jurisdiction in said cause, the superior court could acquire none upon appeal; and a writ of mandamus is prayed for to compel the superior court to ake jurisdiction and try the

cause.

Considerable discussion is indulged in by the attorneys for the respective parties, through their briefs, as to whether the value of the property involved as alleged determines the jurisdiction; but, with our view of the law governing this case, it is not necessary to enter upon a discussion of that proposition. The original amount in controversy was under $200. If the amount involved should be held to be the vale of the property, then an appeal would lie from the ruling of the su

perior court, and under the law announced by this court in State v. Superior Court of Jefferson Co. (decided Jan. 19, 1899) 55 Pac. 933, mandamus would not lie; for it was there announced that the law of this state was that extraordinary writs will not be allowed to issue when there is an adequate remedy at law. This case was followed by State v. Hadley (decided Feb. 6, 1899) 56 Pac. 29, and b numerous other decisions announced from the bench upon which no opinions were written. So that it is not necessary to again enter into a discussion of that branch of the law. If the amount involved is gauged by the judgment in this case, then it does not exceed $200, and, under the constitution, no appeal would lie from the judgment of the superior court. It is true that it was decided by this court in State v. Hunter, 3 Wash. St. 92, 27 Pac. 1076, that mandamus is the proper remedy to compel a court to take jurisdiction of a cause which it has wrongfully dismissed, because, in the opinion of the court, it had no jurisdiction therein, and in that case the amount sued for was less than $100. To sustain this announcement, the court cited Ex parte Bradstreet, 7 Pet. 634; Ex parte Parker, 120 U. S. 737, 7 Sup. Ct. 767; Id., 131 U. S. 221, 9 Sup. Ct. 708; Harrington v. Holler, 111 U. S. 796, 4 Sup. Ct. 697; and State v. Murphy, 19 Nev. 89, 6 Pac. 840. In Harrington v. Holler, supra, in a very brief opinion, the supreme court of the territory of Washington was, by mandate from the supreme court of the United States, compelled to take jurisdiction of a case where it had dismissed a writ of error because of a failure of the plaintiff in error to file the transcript and have the cause docketed within the time required by law, it being held that the dismissal of the writ was a refusal to hear and decide the cause; while shortly after the same court, in Ex parte Brown, 116 U. S. 401, 6 Sup. Ct. 387, refused to grant the writ where the territorial court had dismissed the cause because errors had not been assigned according to the rules of practice applicable to the form of action. Mr. Chief Justice Waite, in briefly delivering the opinion of the court, said: "This motion is denied. According to the petition, the court entertained jurisdiction of the cause, but dismissed it for want of due prosecution; that is to say, because errors had not been assigned in accordance with the rules of practice applicable to the form of the action. This is a judgment which can only be reviewed by writ of error or appeal. as the case may be." In 120 U. S. 737, 7 Sup. Ct. 767, the supreme court of the United States, in the case of Ex parte Parker, which was also a case from the territory of Washington, by mandate compelled the supreme court of the territory to take jurisdiction of a cause where the appeal had been dismissed because the necessary preliminary steps to perfect the appeal had not been taken; and it was held that the appellant had not complied with the requisition of the law prescrib