fendants demurred for the alleged reason that the same did not state facts sufficient to constitute a cause of action. The district court sustained the demurrer, and caused judgment for costs to be entered against the plaintiff. From this judgment plaintiff appeals to this court; and we are called upon to determine the question of the legal existence of the town of Puyallup, which also involves the validity of the act of the legislature approved February 2, 1888, entitled an act "for the incorporation of towns and villages," the first section of which, so far as is material to this case, is as follows: "Where a majority of the taxable inhabitants of any town or village within this territory present a petition to the judge of the district court, having jurisdiction of real actions in such county, setting forth the metes and bounds of such town or village, together with the adjacent bounds, in all not exceeding in area one square mile, which they desire to include therein, and praying that they may be incorporated, and police established for their local government, and the judge of the district court shall be satisfied that a majority of the taxable inhabitants of such town or village, as shown by the last assessment roll of said county, shall have signed such petition, such judge of the district court shall cause such petition to be entered in full on the records of such court, together with the names of the petitioners, and shall thereupon make and record an order declaring such town or village duly incorporated, designating in such order the metes and bounds thereof, and the name of such town or village, and thenceforward the inhabitants within such metes and bounds are a body politic and corporate.' The proceedings for incorporating the town were inaugurated by the presentation to the judge of the district court, by one John Beverly, of a petition signed by 63 persons therein, representing themselves to be a majority of the taxable inhabitants of the town of Puyallup, praying that they might be incorporated under the name of the "Town of Puyallup," and police established for their local government, and that trustees be appointed for the government of said town. The petition also specified and defined the metes and bounds of the proposed territory to be incorporated, and alleged the area thereof to be in all not exceeding one square mile. On the 31st day of July, 1888, the judge of the district court, at chambers, in the city of Tacoma, in Pierce county, in response to the prayer of the petition, made and entered of record an order declaring the town of Puyallup to be duly incorporated under and by virture of the laws of Washington Territory, and in said order appointed defendants as a board of trustees of the town, in accordance with section 2 of the incorporation act. It is admitted by the demurrer, and was conceded by counsel on the argument of this case, that the relator is the owner of real property situated within the boundaries of the territory described in the petition, and defined by order of the court; that he did not consent to the incorporation of the town; that he was unwilling to have it incorporated with boundaries including his property; that his said real estate is partly improved and cultivated farming land, not platted into town lots and streets, and that he is unwilling to consent to the laying out of and extending streets across the same; that he is unwilling to submit to taxation of his land by said municipal corporation; that no notice of the presentation of the petition was given; and that the relator had no opportunity to be heard, or to remonstrate against, or oppose the incorporation of the town, or to question the validity of the order of the judge, or to make complaint as to the boundaries of the proposed municipal corporation. The proceedings are assailed by appellant as not being in accordance with the law relating thereto. He objects that the petition is defective in not stating that the signers thereof were a majority of the taxable inhabitants of the town, according to the last assessment roll of the county, and that the order of the judge was made upon the certificate of the county assessor who is not empowered by any law to so certify; that there was no evidence before the judge or court to warrant the order; and that the order was made without jurisdiction of the subject-matter by the court. As the law requires that the petition to be presented to the judge shall be signed by a majority of the taxable inhabitants of the town or village to be incorporated, and that the judge shall be satisfied, in some way not specified by law, that a majority of the taxable inhabitants of the town or village, as shown by the last assessment roll of the county, shall have signed the petition, it is quite doubtful whether an omission to state in the petition that the petitioners are a majority of the taxable inhabitants as shown by the last assessment roll of the county, is not a matter substantially affecting the subsequent proceedings. But, however this may be, we are not disposed to hold the incorporation invalid on that account, but will assume that the law was substantially complied with. We now come to the consideration of validity of the law itself. The object of the act of the legislature was the incorporation of towns and villages, as expressed in the title; and, as the meaning of the expression "towns and vil lages" is not defined by the law, we must presume that the words were intended to be used in their ordinary acceptation, as meaning an aggregation of houses and inhabitants more or less compact. The word "town" was originally from the Anglo-Saxon word “tun,” an inclosure, and meant a collection of houses inclosed by a wall. And. Dict. Law, Tit. "Town.” "The fundamental idea of a municipal corporation proper, both in England and in this country, is to invest compact or dense populations with the power of local self-government. Indeed, the necessity for such corpo rations springs from the existence of centers or agglomerations of population, having by reason of density and numbers, local or peculiar interests and wants, not common to adjoining, sparsely settled, or agricultural region. It is necessary to draw the line which separates the limits of the place and people to be incorporated. This is, with us, a legislative function." 1 Dill. Mun. Corp. (3d Ed.) § 183. In England, this power was formerly given by royal grant or charter, presumably at the request of the municipalities themselves, but in this country municipal corporations are purely the creatures of statutes. "They possess no powers or faculties not conferred upon them, either expressly or by fair implication, by the law which creates them, or other statutes applicable to them." Id. § 21. and have police established for their local government. Id. § 183. But, unless specially restrained by constitutional provisions, the legislature may delegate the power to determine the territorial limits of the munici pal corporation, and thereby settle what property and persons will be subject to municipal control to appropriate local bodies or boards of officers. 1 Dill. Mun. Corp., supra.; People v. Bennett, 29 Mich. 451. It would hardly seem probable that the legislature,' while professing to pass a law for the incorporation of "towns and villages," really intended to include therein rural districts or farming lands not platted or laid out in lots or blocks, especially against the will of the owner of such property; and yet the statute, by its terms, covers and includes just such cases; and we do not feel at liberty to construe it otherwise. We entirely agree with the learned judge who decided the case of People v. Bennett, when he says that “there are few, if any, acts of state, bearing upon individuals, more important than those which determine their lib It being conceded that the power to create inunicipal corporations is vested exclusively in the legislature, the question arises, can this power be delegated; and, if so, to whom, or to what agencies? Counsel on both sides agree that the legislature may delegate its functions in some measure; but they dis-erty to be included in particular municipaliagree as to the legislative power to carry the principle to the extent attempted in the act in question. On the one side, it is contended that the act approved February 2, 1888, does not in fact delegate legislative authority to the courts; that the statute, and not the court, determines the extent and nature of the powers of the corporation; that a statute may be valid, though its taking effect may depend on some subsequent event, and that the powers and duties of the courts in relation to the mode of organizing towns are judicial in their nature; that the legislature, and not the court, prescribes the powers, duties, and liabilities of the corporation, and, on the other, it is urged that the law of congress conferring upon the territorial legislature the right to create municipal corporations does not permit the legislature to delegate such right to the courts or judges; that the law is mandatory upon the court, is against public policy, and authorizes the taking of property without due process of law, and without notice or opportunity to be heard; and that the including of farming land in incorporated towns is unreasonable and unjust. The incorporation of towns by general statutory law is a departure from original methods, and is of comparatively modern date; and it would naturally be expected that the procedure for their organization by this means would not be uniform throughout the different states of the Union. It would be practically impossible for the legislature, by a general law, to fix and define the boundaries of every municipal corporation that might be organized under it; and that question is therefore determined in some other way,designated by the general law of the particular jurisdiction. But the authority to incorporate, with us as in England, has been restricted to cases in which compact communities already exist who desire 10 assume a corporate character, ties; and the cases are very rare in which they have not been allowed an opportunity of being heard in every step of the proceedings." And, where the individual has not expressly assented, or impliedly done so, by settling and remaining in a dense community needing corporate powers and privileges, it seems too plain for argument that he should at least be accorded a hearing before being compelled to subject himself or his property to the dominion of a municipality with whose interests he has nothing in common. This view of the law was adopted in the case of People v. Bennett, above cited. In the case of Borough of Blooming Valley, 56 Pa. St. 66, it was held that farming land might be included in the limits of a municipal corporation by consent of the owner, but not otherwise. And in Borough of Little Meadows, 28 Pa. St. 256, it was held that the community proposing to be incorporated was too sparse to be called a "village," within the meaning of the law. On the contrary, it has been held in New Hampshire, with equally good reason, that the selectmen of a town, in defining the boundaries of a village, could not exclude any part of it, but must include the whole within the village limits. Osgood v. Clark, 6 Fost. (N. H.) 307. Appellees contend, as before intimated, that a statute may be conditional, and its taking effect made to depend upon some subsequent event; and, to a certain extent, the principle is recognized by the courts. As an illustration, the legislature may enact a general statute for the formation of private corporations; and its taking effect, as to any particular corporation, may depend upon the assent of the parties interested. They may withhold their assent at pleasure, but cannot be forced to become incorporators. If they accept the terms and provisions of the law they are presumed to be benefited thereby; but, if they reject, they cannot be injured. While a statute may be conditional, and | controversy in that case was as to the validonly take effect upon the happening of a fut-ity of the statute in relation to the annexaure event, we hold that the place where it is to operate, its "situs," must be fixed definitely by the legislature itself, or delegated to some body or agency capable of exercising legislative functions, and not left to the will or caprice of localities to determine whether it shall be applicable to their particular community or not. Local option laws have been sustained by some courts, but the place where they were to take effect has always been defined by law, and not left conditioned upon the discretion of the people of any and every locality in the state. To sustain the position of appellees, counsel cite the case of Burlington v. Leebrick, 43 Iowa, 252. The question there was as to the power of the city of Burlington to enlarge its limits by extending its boundaries over contiguous territory; and the court held that the law authorizing a petition for the purpose by the city council, to be presented to, and acted upon by, the circuit judge, and issues to be found and tried as in other proceedings, was not invalid as an unwarranted delegation of legislative power, basing the opinion on the ground that the determination of the issues by the court was a judicial act,-a mere ascertaining of the condition upon which the law might take effect. But in delivering the opinion the court used the following language: "Nor is it proper to designate the thing to be accomplished by this statute as the creation of a corporation. A corporation is an artificial being clothed with certain powers. In the present case, such a corporation exists, known as the City of Burlington.' When the act sought in this petition is accomplished, no new corporation will have been created." From this language we might infer that, had the question before the court been that of the formation of a municipal corporation, the decision might have been different. In the case of Kayser v. Trustees, 16 Mo. 88, the incorporation of a town by the county court, in pursuance of a general statute, was upheld on the ground that the court acted judicially, and had no discretion, and no authority to vest any power in the corporation. And in the case of Mayor, etc., v. Shelton, 1 Head, 24, a law substantially like the one under consideration in this case was held valid and constitutional for the reason that no legislative power was delegated to or exercised by the court. This last decision, however, was under a constitution which provided, that "the legislature shall have power to grant such charters of incorporation as they may deem expedient for the public good." We do not feel bound by the decisions in these cases. If the court in either of the cases acted judicially in the matter before it, then, certainly, it should have had a right or "discretion" to exercise its judgment. If its action was not judicial, then, surely, it must have been a delegated legislative power which it exercised. Counsel for appellees also cite the case of Blanchard v. Bissell, 11 Ohio St. 96. The The decision tion of territory to cities; and it was claimed by Bissell, in a proceeding to enjoin the collection of certain taxes levied upon his property by the city council, that the order of the county commissioners for the annexation of the district embracing his property was void because it included his property with that of others, without his consent, and against his remonstrance. The court sustained the law on the ground that the county commissioners were properly clothed with power to do the acts objected to. Each party was entitled to a hearing under that statute, and, the commissioners were empowered to order the annexation or not, as they might deem reasonable and proper. We agree with that decision; and, if our statutes were like the one upon which it was based, it would be stripped of its most objectionable features. In the late case of People v. Fleming, 16 Pac. Rep. 298, the supreme court of Colorado held that a law which provides, that when the inhabitants of any part of the county not embraced within the limits of any city or incorporated town desire to be organized into a city or incoporated town, they may apply by petition to the county court, and providing, also, for the manner of procedure in the organization of such contemplated town or city, was not in conflict with the constitution. in that case seems to have been based upon the broad ground that the legislature, if not expressly prohibited by the constitution, may delegate the power to form municipal corporations to unorganized private individuals; in other words, to the people themselves. We cannot consent to follow the reasoning in that case, or to concur in the conclusion reached by the learned court. We think the better doctrine is that laid down by Judge Cooley in his work on Constitutional Limitations, (4th Ed.) 145, 146, which is as follows: "The prevailing doctrine in the courts appears. to be that, except in those cases where, by the constitution, the people have not expressly reserved to themselves a power of decision, the function of legislation cannot be exercised by them even to the extent of accepting or rejecting a law which has been framed for their consideration." But we would not be understood as holding that the legislature could not delegate the power to put the ma chinery of municipal corporations in motion to courts which are not purely legal tribunals. The courts of quarter sessions of Pennsylva nia, and the county courts of Oregon, and perhaps of other states, are vested with administrative, and, in a measure, representative, powers; and they are properly intrusted with the functions attempted by our late territorial legislature, by the law in question, to be imposed upon the district judge. We hold that a judicial court cannot exercise legislative functions, and that the legislature cannot impose such power upon it. People v. Bennett, supra; People v. Nevada, 6 Cal. 143; City of Galesburg v. Hawkinson, Wash.) ANDREWS v. KING COUNTY. 75 Ill. 153; People v. Carpenter, 24 N.Y. 89. Owing to the importance of this case, we have given it all the consideration in our power, under the circumstances; and we have been greatly aided in our labors by the learning and diligence of counsel on both sides. And we are constrained to hold that the statute under which the town of Puyallup was organized is invalid, and cannot be sustained. The cause will therefore be remanded to the court below, with directions to overrule the demurrer, and to proceed in accordance with this opinion. And it is so ordered. STILES, HOYT, and SCOTT, JJ., concurring. DUNBAR, J. I concur in the result, because I do not think that the petition was sufficient; but I cannot concur in the opinion that the act of the legislature was unconstitutional. (1 Wash. St. 46) ANDREWS v. KING COUNTY et al. (Supreme Court of Washington. Jan. 29, 1890.) UNEQUAL TAXATION-INJUNCTION-PLEADING FRAUD. 1. The action of an assessor in assessing mortgages, unaccompanied by other evidence of indebtedness, at their face value, and lands at from one-fourth to one-fifth only of their value, is in violation of Rev. St. U. S. § 1924, declaring that all taxes shall be equal and uniform, and no distinction shall be made in the assessment of different kinds of property, which shall be according to the value of the property; and an injunction will lie against such fraudulent and oppressive refusal to exercise his judgment on the part of the assessor. 2. Where a complaint alleges facts which, if true, would establish fraud as a conclusion of law, no specific allegation of fraud is necessary. Appeal from district court, King county; R. A. JONES, Judge. Bill for injunction by Lyman B. Andrews against King county and William Cochrane, sheriff, to restrain the collection of an alleged excessive and unlawful tax. The court sustained a demurrer to the bill, and plaintiff appeals: W. R. Andrews, for appellant. Stratton & Fenton, for appellees. DUNBAR, J. In the investigation of this case there are three leading propositions to be considered, viz.: (1) In order to put in issue the question of fraud, is it necessary to allege in terms that defendants were guilty of fraud? (2) Conceding the allegations in the complaint to be true, are the facts there stated sufficient to establish a prima facie case of fraud? (3) Had plaintiff any other remedy than the one invoked? So far as the first proposition is concerned, we are clearly of the opinion that, if the complaint alleges a state of facts which if proved to be true would establish fraud as a conclusion of law, it is a sufficient allegation of 'fraud; and that the declaration of the pleader that such acts were fraudulent is in no wise essential or necessary to put the question of fraud in issue. 409 In the other two propositions, which we will consider in some degree together, grave questions are presented,-questions the importance of which demand of the court painstaking investigation, and the rightful determination of which is not so important, in view of the amount of money involved in the particular case, as it is in view of the effect which such determination will have, both on the rights of the individual citizen, and upon the state in the determination of its laws. The principal contention of the plaintiff, and the one to which the court will address itself especially, (the determination of which will be conclusive in this case,) is that the assessor uniformly and persistently, intending to injure and oppress all persons holding mortgages, of which there was a large class in King county, and especially this plaintiff, and intending to relieve persons owning lands and other property in King county, outside of mortgages, of their just burden in maintaining the public revenue, assessed mortgages, which were unaccompanied by any other evidence of their indebtedness, at their par value, without any regard to the valua. tion placed by him upon the lands mortgaged to secure the payments of said demands, while he, at the same time, refused to assess lands in said King county at more than onefourth their cash value, and refused to assess other property at more than from one-fifth to one-fourth of its cash value; and alleges the fact to be that he assessed plaintiff's mortgage at $30,000, while he assessed the identical land pledged to the payment of the said demand of $30,000 at only $2,000, notwithstanding plaintiff's said mortgage was not accompanied by any other evidence of indebtedness, and that the plaintiff's remedy upon his said demand will be entirely exhausted by a foreclosure of said mortgage, and a sale of the lands, tenements, and hereditaments pledged to him therein; and that the action of the assessor in such alleged discrimination was indorsed and confirmed by the board of county commissioners of said King county while sitting as a board of equalization, which said action of the assessor and board of equalization plaintiff claims was in violation of section 1924 of the Revised Statutes of the United States, which declares that "all taxes shall be equal and uniform, and no distinctions shall be made in the assessments between different kinds of property, but the assessment shall be according to the value of the property." No doubt the essential idea of the statute is that each person shall pay a tax in proportion to the value of his property; and the fact that plaintiff's property is admitted to be assessed at its par value will not deprive him of the constitutional guaranty, if by the under-valuation of other property he is compelled to bear more than his just If A. proportion of the burden of taxation. is the owner of property of the value of $1,000, which is assessed at $1,000, and B. is the owner of property worth $1,000, which is assessed at $500, the practical result to A. is the same as though B.'s property had been assessed at its full value of $1,000, and A.'s property at an overvaluation, or at $2,000. In either case, the resulting injury is the same. A. has been subjected to double the burden that B. has, while actually possessing the same amount of property. The just principle of taxation is equally violated in both cases, and the constitutional mandate that "all taxes shall be equal and uniform, and that the assessment shall be according to the value of the property," is equally ignored; and, when such an abuse of official discretion affects a large class of individuals, it will be subject to the law's revision. In view of the inconvenience to the public which will arise from any derangement in the system of the collection of taxes, the law will not regard accidental omissions or minor mistakes. Nor will courts of equity interfere to correct errors in judgment as to valuation, because, as has been well said by Judge Cooley, "value is matter of opinion;" and, when the law has provided officers upon whom the duty is imposed to make the valuation, it is the opinion of those officers to which the interests of the parties are referred. But, according to the same learned author, "it is possible, however, that there may be | circumstances under which the action of the officers will not be conclusive." Cooley, Tax'n, 218. And one of those circumstances is where the officer refuses to exercise his judgment, and, by an arbitrary and capricious exertion of official authority, seeks fraudulently to defeat the law, instead of enforcing it. In such a case the tax-payer will not be left completely at the mercy of the assessor. In this case, if the averments of the complaint are true, and the assessor uniformly taxed mortgages at their par value, and land and other property at from one-fourth to onefifth of its cash value, and, in accordance with such uniform rule of assessment adopted by him, assessed the plaintiff's mortgage, which was unaccompanied by any other evidence of indebtedness, at $30,000, and the identical land mortgaged for the payment of the said $30,000 at only $2,000, the conclusion is inevitable that the honest judgment of the offcer was not exercised; and that a rule or system of valuation was adopted by the assessor, and confirmed by the board cf equalization, which was designed to discriminate unfairly against one class of tax-payers, and which was in plain contravention of the constitutional law which provides that "all taxes shall be uniform, and that the assessment shall be according to the value of the property." The principles involved in this case were passed upon by the supreme court of the United States in the case of Cummings v. Bank, 101 U. S. 153, which is a leading case, and must be regarded as settling the law there enunciated. In this case the Merchants' National Bank of Toledo filed its bill in equity to enjoin the treasurer from collecting a tax wrongfully assessed against its stockholders, alleging that in the valuation | | of said shares they were estimated at a much larger sum in proportion to their real value than other property in the same city, county, and state. It is true that this decision was rendered under a statute of the state of Ohio providing for such a manner of assessment as was complained of, and providing expressly for an injunction against the collection of a tax illegally assessed. But, as expressive of the opinion of the court in rendering its decision, it says: "Independently of this statute, however, we are of opinion that when a rule or system of valuation is adopted by those whose duty it is to make the assessment, which is designed to operate unequally, and to violate a fundamental principle of the constitution, and when this rule is applied, not solely to one individual, but to a large class of individuals or corporations, that equity may properly interfere to restrain the operation of this unconstitutional exercise of power." The case at bar is a stronger one than the case which called forth that opinion, for in that case no actual fraud or capriciousness on the part of the oflicers, or intent to unjustly discriminate, was claimed; the assessment being made under the provisions of a statute the constitutionality of which was in question. And Mr. Chief Justice WAITE, in rendering a dissenting opinion, inferentially affirms the position taken by us when he says: "The valuation, as finally fixed by the proper officers or equalizing board under the law, is, in my opinion, conclusive when there has been no fraud. As it seems to me, this case comes within the operation of this principle." In the State Railroad Tax Cases, 92 U. S. 575, cited by both plaintiff and defendant, and largely relied upon by defendant in the argument of this case, and, as stated by counsel for defendant, the case on which the court below decided this case adversely to plaintiff's interest, we can see no enunciation of the law which is not in harmony with the view taken by plaintiff in this case. There the contention of plaintiff was that the statute of Illinois, and the rule adopted by the board of equalization under the statute, was not in conformity with the principles of uniform taxation. The great point in this case, as stated by the attorney general, was the alleged unconstitutionality of the act creating the board of equalization, and it was not contended that the action of the board was not in accordance with the statute. Hence there was eliminated from this case any question of fraud by the officers in refusing to exercise their discretion, and the rule prescribed by the board in this case was for the very purpose of ascertaining the fair cash value of the capital stock and franchise of the railroad companies. If there was an error, it was simply an error of judgment; in fact, it can be readily gathered from the opinion of the court that it did not think there had been even an error of judgment, either by the board of equalization or the legislature. Justice MILLER, in rendering the opinion of the court, says: "The statute of Illinois, and the |