Remanded, with direction to the court to proceed as above ordered. Modified and affirmed.

BRANTLY, C. J., and PIGOTT, J., concur.

(26 Wash. 358)

MCMILLAN v. CITY OF TACOMA. (Supreme Court of Washington. Nov. 26, 1901.)

TAXATION-GENERAL TAXES-SALE OF LANDS -GENERAL TAX LIEN-PRIORITY-STATUTES-CITY ASSESSMENTS.

1. The word "tax," as used in Amendatory Revenue Law 1899, p. 302, § 20, declaring that the holder of a general tax certificate, before bringing an action to foreclose the lien, shall "pay the taxes that have accrued on the property," does not include assessments for street improvements.

2. The term "special tax," as used in Laws 1897, p. 162, § 58, declaring that no tax except a "special tax" shall be extended on the tax rolls until the property valuations are equalized by the state board of equalization, applies to such taxes as are levied in the same manner as general taxes, such as school and road taxes, and does not refer to or include assessments for municipal improvements.

3. A contention that from the use of the words "person or authority," in Laws 1897, p. 174, § 79, declaring that the person or authority who shall collect or receive taxes shall give a certificate that such taxes have been so paid, it is to be inferred that some person other than the county treasurer is to receive payment, and hence such statute impliedly requires payment of city assessments for street improvements to the city treasurer, who is "such authority," cannot be sustained.

4. Laws 1891, p. 316, § 93, declares that a general tax lien shall have priority over any recognizance, mortgage, judgment, deed, or other obligation; and Laws 1897, c. 51, § 11, relating to the foreclosure of city tax liens, declares that, when time for redemption from a sale for nonpayment shall have expired, the treasurer shall execute a deed to the person entitled under the law, which deed shall convey the entire title to the property stripped of all prior liens excepting unpaid installments and general taxes. Held, that a lien for general taxes was prior and superior to a lien for unpaid city assessments, and the owner of such lien was entitled to foreclose it without first paying the city the amount of city assessments against the property.

Appeal from superior court, Pierce county; W. H. Snell, Judge.

Action by T. F. McMillan against the city of Tacoma and another. From a judgment in favor of plaintiff, defendant city appeals. Affirmed.

William P. Reynolds and Emmett N. Packer, for appellant. F. Campbell, for respondent.

HADLEY, J. Respondent is the owner of a general tax certificate of delinquency issued by the county of Pierce for delinquent taxes upon certain real estate in said county for the year 1895. In addition to the amount paid for the certificate, he also paid the delinquent taxes upon saic property for subsequent years, and thereafter commenced this suit to foreclose his lien under said certifi

cate, and made the owner of the property and the appellant, the city of Tacoma, parties defendant in the suit. The city of Tacoma answered the complaint, and alleged facts showing the existence of a street assessment lien in its favor upon the same property, and asked that the respondent be denied judgment for his tax lien unless he should first pay or tender to said city the full amount of said street assessment lien. To said answer the respondent demurred, and the demurrer was by the court sustained. Appellant duly excepted to said ruling of the court, elected to stand upon its said answer, and refused to further plead. Thereafter judgment was entered establishing respondent's tax lien as superior to all other liens, and particularly declaring the

of the appellant for street assessments as junior and inferior to the general tax lien. From said judgment the city of Tacoma has appealed.

Appellant's contention is that, before respondent is entitled to judgment foreclosing his lien, he is required to "pay all taxes that have accrued on the property," as provided by section 20, page 302, of the amendatory revenue law of 1899, and that the word "taxes," as there used, means local assessments as well as general taxes. In support of the above position our attention is directed to certain portions of the revenue law, and from certain words used it is argued that the legislature meant to include local assessments in the provision above mentioned. Our attention is first directed to section 58, p. 162, Laws 1897, and particularly to the proviso at the close of said section, which reads as follows: "Provided, that no taxes, except special taxes, shall be extended upon the tax rolls until the property valuations are equalized by the state board of equalization for the purpose of raising the state revenue." It is urged that the words "special taxes" here used must refer to local assessments. We agree, however, with respondent's contention that the words used refer to special taxes levied after the manner of general taxes. Our laws permit special taxes to be levied for school and road purposes. They are levied as so many specified mills upon the dollar upon all the taxable property, real and personal, within a given district. They are certified to the county auditor by the local authorities, extended upon the county tax rolls, and collected by the county treasurer in the same manner as general taxes. Whatever may be said as to the practical operation of the exception in the proviso invoked by appellant when applied to special taxes of the classes we have indicated, we believe that it was so intended, and was not intended to refer to the local street assessments, which involve a subject not then being considered by the legislature.

It is suggested that the revenue law will not be construed as ignoring local assess

ments unless it clearly appears that such was the intention of the legislature, and in support of the position that it was not the intention to exclude such assessments from the consideration here involved we are further referred to section 79, p. 174, Laws 1897. The following portion of the section is particularly cited, to wit: "The person or authority who shall collect or receive the same shall give a certificate that such taxes have been so paid." From the use of the words "person or authority" appellant draws the inference that the owner of the property who seeks to redeem is required to pay outstanding and unpaid taxes and assessments to some one other than the county treasurer, and that in this instance it refers to the city treasurer as the one authorized to receive payment of street assessments. We think the section cannot be so construed. The language refers only to taxes, no mention being made of special assessments; and such an inference is too remote to be entertained. Frequent reference is made by counsel to the use of the word "assessments" in the revenue law, and it is urged that the term refers to local assessments. We think such was not the intention. The subject under consideration is that of general taxation. The title of the act of 1897 is, "An act to provide for the assessment and collection of taxes in the state of Washington" (Laws 1897, p. 136). The act of 1899 is simply amendatory of the act of 1897. Every detail of the revenue statutes relates to the assessment, levy, and collection of general taxes upon all property, real and personal, which is not specially declared as exempt. The theory upon which general taxation proceeds is entirely distinct from that of local assessments. General taxation is sought to be enforced against all classes of property upon an ad valorem basis, while local assessments are limited to real property within a given district, and are based entirely upon the theory of special benefit by which the value of property is enhanced in excess of the general good. General taxation is enforced to serve the necessary purposes of government, while local assessments are enforced to serve mere local convenience, and for the additional benefit of private property holders. These differences have made it necessary to recognize taxation and local assessments as distinct subjects, and, unless a general revenue law contains provisions which clearly are intended to relate to local assessments, it must be held that they are not included within the operation of the law. We find nothing in our revenue law which convinces us that it was the intention of the legislature to extend its provisions to local assessments. Appellant's contention that, before a foreclosure can be had upon a delinquent tax certificate, payment must be made not only of other delinquent general taxes, but also of street assessment liens, is in conflict with the spirit

of our revenue law as it has existed for years. Section 93, p. 316, Laws 1891, contains the following: "The said lien shall have priority to and shall be fully paid and satisfied before any recognizance, mortgage,' judgment, debt, obligation or responsibility to or with which said real estate may become charged or liable." Stronger language could not be employed to declare the general tax lien paramount over every other possible lien or burden to which property may be subjected. The identical language above employed has been carried forward into subsequent statutes, and is found in the following Session Laws: Laws 1893, p. 358, § 79; Laws 1895, p. 516, § 19; Laws 1897, p. 174, § 78. There has been no repeal or modification of the statute as it was left in 1897, and the same is now the law. Under that declaration of the legislature it must be held that the holder of a delinquent general tax certificate is not required to pay local street assessment liens before he can proceed to foreclose and sell under his general tax lien. He is entitled to a decree establishing his tax lien as paramount and superior to all other liens or charges against the property.

As a further assurance of the intent and policy of the legislature upon this subject, we refer to chapter 51 of the Session Laws of 1897. The subject of the act relates to a method for foreclosure and sale for street assessment liens in cities of the first class. The method outlined is not made mandatory, but cities of the first class may follow it at their option, or may pursue any existing charter method. Under the plan outlined in this statute, the lands are sold through the county treasurer, and redemption from such sales may be made as provided by law for redemption from sales on execution, except that the treasurer performs the duties ordinarily performed by the sheriff in redemption from execution sales. Section 11 of the act is as follows: "When the time for redemption shall have expired, the treasurer shall execute a deed to the person entitled under the law, which deed shall be conclusive of all things pertaining to any and all of the prior proceedings, and convey the entire title to the property therein described, stripped of all prior liens or claims, excepting unpaid installments and general taxes." Thus the legislature expressly provided that the sale for street assessments should convey the entire title stripped of all prior liens or claims "except unpaid installments and general taxes," thereby unmistakably making the general tax lien superior to the street assessment lien. This policy of the legislature is not only wise, but, in the nature of things, is necessary, in order that the existence and continuation of government may not be imperiled. The state and its subordinate municipalities cannot exist without the collection of public revenue, and serious confusion would result if the lien of taxes lev

ied for that purpose should be made inferior to, or equal with, local assessments or other liens.

We think the judgment of the lower court was right, and it is therefore affirmed.

REAVIS, C. J., and FULLERTON, DUNBAR, ANDERS, MOUNT, and WHITE, JJ.,

concur.

(26 Wash. 352)

BAUSMAN v. CAMERON et al. (Supreme Court of Washington. Nov. 25, 1901.)

FRAUDULENT CONVEYANCE-EVIDENCE

VERDICT-APPEAL.

Where a judgment debtor assigns his interest in a claim for $9,000 to his associate for a recited consideration of "one dollar and other valuable considerations," and on the trial of issues as to the good faith of the assignment neither of the principals was sworn, and the only witness is the attorney who acted for them, and his admissions justify the verdict for plaintiff, the judgment entered thereon should be affirmed.

Appeal from superior court, Spokane county; William McDonald, Judge.

Action by Frederick Bausman, as receiver. against Sol. Cameron, defendant, and the Le Roi Mining & Smelting Company, garnishee. From a judgment for plaintiff, the defendant and garnishee appeal. Affirmed.

Heyburn, Price, Heyburn & Doherty and Lewis & Lewis, for appellants. Samuel R. Stern, for respondent.

FULLERTON, J. In March, 1896, the respondent Bausman recovered a judgment in the superior court of Spokane county against the appellant Solomon Cameron, and in May, 1898, caused an affidavit of garnishment to be filed in that court, averring therein that the Le Roi Mining & Smelting Company, a corporation, was indebted to Cameron, and had property in its possession and under its control belonging to him. A writ of garnishment was issued thereon and duly served upon the judgment debtor and the corporation, to which they answered, putting in issue the averments of the affidavit. On the issues thus made a trial was had before a jury, resulting in a verdict and judgment for the plaintiff in the writ, the respondent here. From this judgment, the judgment debtor in the principal action and the garnishee defendant appeal to this court.

It is assigned as error that the evidence was insufficient to justify the verdict. It appeared from the evidence that Cameron and one Bye had constructed for the Le Roi Mining & Smelting Company a smelter plant, at Northport, in the state of Washington, and on April 8, 1898, claimed a balance due therefor of some $9,475.28. On the latter date, which was prior to the service of the writ of garnishment, Cameron, for

*

the recited consideration of "one dollar and other valuable considerations," assigned to Bye all his right, title, and interest in the claim. The good faith of this assignment was the question at issue on the trial of the garnishment proceedings. While the evidence on the question is somewhat meager, we are unable to say, after a careful examination of the entire record, that there was no substantial evidence upon which to base a verdict. The good or bad faith of a transaction of this kind can rarely ever be proven by direct evidence. Such must be gathered from all the circumstances surrounding it. Here, neither of the principals testified, and the case was rested upon the evidence of an attorney, who derived his knowledge while acting as attorney for the parties to the transaction. His admissions, when taken with the surrounding circumstances, seem to us to make a case from which the jury may well have found that the assignment was made for the purpose of putting the claim beyond the reach of the creditors of Cameron. This being so, the judgment must be affirmed, and it is so ordered.

on

3. Evidence of statements of the person robbed, made within a short time after the alleged crime, is admissible as a part of the res gestæ. 4. Where the prosecuting witness was, the day of the rendition of the verdict, adjudged insane, his declarations made two months before should not be excluded, there being nothing to indicate that he was not then perfectly sane.

Appeal from superior court, Skagit county; Geo. A. Joiner, Judge.

Charles Smith and another were jointly convicted of robbery, and appeal. Affirmed. J. C. Waugh, for appellants. M. P. Hurd, for the State.

HADLEY, J. Appellants were jointly charged with the crime of robbery, alleged to have been committed by forcibly and feloniously taking from the person of one Olsen $14 in lawful money of the United States. A trial was had, resulting in a verdict of guilty as to both defendants. A motion for new

trial interposed by appellants was overruled, and judgment was thereafter entered upon the verdict of the jury, by the terms of which the appellants were each sentenced to serve terms in the state penitentiary; the term of appellant Smith being three years, and that of Keyes being two years and six months.

It

It is assigned as error that the court denied the motion for a new trial. At the time of the trial the prosecuting witness, Olsen, to the surprise of both the state and defense, appeared to be in a state of mental collapse. His testimony, as appears by the record, is of no value whatever as being in support of the facts alleged in the information. He was unable to identify either of the appellants with any degree of certainty as being persons he had ever seen before. He was not able to testify that a robbery had been committed. The following appears in the record of his direct examination: "Question. Did you have some money taken away from you over there, Edward? Answer. I don't know. may be. I guess I had some money in my pocket. I spent it. Q. Do you remember how much money you had? A. No, I don't remember. I think it was somewhere around fifty cents, or something like that. Q. The money was all gone? A. I believe so." The record shows that on the same day the verdict of the jury was returned the prosecuting witness was duly adjudged to be an insane person, and was committed to the asylum for the insane. It is manifest, therefore, that he was laboring under the same disability when he was upon the witness stand, and he was for that reason an incompetent witness. His testimony must therefore be entirely eliminated.

The state introduced another witness,-one Winkler,-who testified that on the day of the alleged crime he was employed as a section foreman on the line of the Seattle & International Railroad; that Olsen came along the track where the witness was in charge of his men, and told the witness that he had been drinking with two men the night before, and he was afraid they would take his money; that Olsen described the appearance of the men, and then said he was going over to a little house, which stood some 700 feet from the track, where he wanted to sleep for a time, and asked the witness not to let any one know he was there; that a few minutes afterwards two men came along the railway track, whose appearance corresponded with the description given by Olsen, and the witness identified the appellants as being the same men; that they stopped, and talked with the witness, and then moved on down the railroad; that a few minutes after these men left Olsen came out of the little house aforesaid, he being bareheaded, and in his stocking feet; that his head was swollen, and stained with blood, and black marks appeared upon his throat and face; that Olsen then said, "The tall man got my head be tween his legs, and the other hit me on the

head." The witness thinks 10 or 15 minutes had elapsed between the time the men left and the time Olsen came out to him as above stated. The witness at once looked down the railroad track, where he could see for a distance of two miles, but did not see appellants. He then discovered and followed the tracks of two men for a distance of about 500 feet along the county road and thence by a "skid road" to the little house where Olsen had been. The witness observed that one of the appellants wore heavy shoes and the other light shoes, and the tracks he followed were made by one person wearing heavy shoes and by one wearing light shoes. The above is a substantial statement of the testimony as to circumstances which may be said to connect appellants with the alleged robbery. If the testimony of the prosecuting witness could he held to be competent, he was unable, as above stated, to testify that a robbery had been in fact committed. The following evidence upon that point appears in the record of the witness Winkler's testimony: "Question. Do you know whether or not Ed Olsen reported at that time what money he lost? Answer. No sir; he did not report to me what he lost. He said they took all he had. When he went in there he showed me his money. He had $7.50 in one pocket, and in the other pocket he pulled out a stocking with some money in it; but I do not know how much was in there." The record does not disclose that any objection was made to said question, or that any motion was made to strike the answer. Should it be urged that the said evidence was hearsay, still it is in the record, and went to the jury without objection. It is true, at the close of the state's evidence the appellants' counsel asked the court to instruct the jury to find a verdict of not guilty, on the ground that there was not sufficient evidence to go to the jury; but the request amounted to a general challenge of all the state's evidence, and did not demand the elimination of any particular portions by reason of incompetency or immateriality. But, aside from this question, we believe the evidence was competent as a part of the res gestæ of the alleged crime. The statement of the person alleged to have been robbed was made almost immediately after the time of the alleged offense. Declarations of the person robbed, when of the res gestæ, are admissible in evidence. 2 Bish. New Cr. Proc. § 1007a1; State v. Ah Loi, 5 Nev. 99; Rex v. Wink, 6 Car. & P. 397. In the last case cited-an English case-the declaration was made some hours after the commission of the robbery. It may be urged that, because of the manifestly irresponsible condition of the prosecuting witness at the time of the trial, his declarations so made should not be considered. But we find from the record that the date of the crime as charged was December 21, 1900, and the date of the trial was February 23, 1901, more than two months having elapsed meanwhile. There is nothing in the record

to indicate that the prosecuting witness was not entirely sane and responsible at the time the declaration was made. We therefore think that the record shows this evidence to be competent, and, the jury having found the appellants guilty, we will not disturb the verdict.

The judgment is affirmed.

REAVIS, O. J., and FULLERTON, DUNBAR, WHITE, MOUNT, and ANDERS, JJ.,

concur.

(26 Wash. 325)

STATE v. LANDES.

(Supreme Court of Washington. Nov. 9, 1901.)

CRIMINAL LAW-APPEAL NOTICE -APPEALABLE ORDER-STATEMENT OF FACTS-DELAY IN FILING-MOTION TO STRIKE.

1. Where judgment of conviction was entered May 25th, and the statement of facts was not served or filed until July 6th, and no extension of time had been granted, a motion to strike such statement from the files will be granted.

2. Where a notice of appeal was given after a denial by the trial court of a motion for a new trial, and before entry of judgment, an appeal based thereon will be dismissed, the denial of a motion for a new trial not being an appealable order.

Appeal from superior court, Okanogan county; C. H. Neal, Judge.

W. W. Landes was convicted of stealing, and he appeals. Appeal dismissed.

E. Fitzgerald, for appellant. V. H. Hopson and E. K. Pendergast, for the State.

PER CURIAM. The appellant was convicted of the crime of cattle stealing, and sentenced to a term in the penitentiary. A motion is made to dismiss the appeal, and strike the statement of facts, on 10 different grounds. It is not necessary to review them all, however, since the statement of facts must be stricken for the reason that the judgment was entered on the 25th day of May, 1901, and the statement of facts was not served or filed until the 6th day of July, 1901, and that no extension of time had been granted to defendant, either by stipulation or on notice to the prosecuting attorney. The appeal must be dismissed, for the reason that no notice of appeal has been given since the judgment was entered, and no notice of appeal was given from any appealable order, the notice of appeal having been made after the denial by the court to grant the motion for a new trial, and before the entry of the judgment. The appeal is therefore dismissed.

Appeal from superior court, King county; Boyd J. Tallman, Judge.

Action by Benjamin W. Padley against James Gregg and others. From an order sustaining a demurrer to the complaint, plaintiff appeals. Appeal dismissed.

II. E. Foster, for appellant. Wm. Hickman Moore, for respondents.

PER CURIAM. Motion is made to dismiss the appeal in this case for the reason that said appeal is from an order sustaining a demurrer. The record showing that the appeal was taken from the order of the court sustaining a demurrer to appellant's complaint, the motion must be sustained, as we have decided in Potvin v. McCorvey, 1 Wash. 389, 25 Pac. 330, and Mason Co. v. Dunbar, 10 Wash. 163, 38 Pac. 1003, that an appeal will not lie from an order sustaining a demurrer. The case falls within the rule announced in those cases, and the appeal is dismissed.

(26 Wash. 323)

In re NORRIS et al. (Supreme Court of Washington. Oct. 26, 1901.)

HABEAS CORPUS-APPEAL-CONVICTION-SEN

TENCE-EXECUTION-STAY.

Under 2 Ballinger's Ann. Codes & St. § 6529, providing that an appeal by a defendant in a criminal action shall stay the execution of a judgment of conviction, the execution will be stayed, though notice of appeal is not given until after the defendant has been transported to the penitentiary.

Petition by William Norris and James MacDonald for a writ of habeas corpus. Writ granted.

W. B.

Frank B. Wiestling, for petitioners. Stratton, H. B. Cooley, and Oscar Cain, for warden of penitentiary.

PER CURIAM. The petitioners were convicted of the crime of burglary in the superior court of Snohomish county, on the 20th day of July, 1901, and were sentenced to be imprisoned in the state penitentiary at Walla Walla for the period of seven years. On the 22d day of July, 1901, the commitment on said sentence was made out by the clerk of the said superior court, and the petitioners were transported to the penitentiary in Walla Walla, delivered to the warden of said penitentiary, and were then and are now confined in said penitentiary at hard labor. On the 6th day of September, 1901, an appeal to this court was taken by said petitioners.

No question is raised as to the sufficiency of the appeal. The petitioners seek by a writ of habeas corpus to be released from the custody of the warden and returned to the county jail of Snohomish county, the petition being based upon section 6529, 2 Ballinger's Ann. Codes & St. The statute provides that an appeal by a defendant in a criminal action shall stay the execution of the judgment of