ments. There was a judgment for plaintiff, and defendant Hull appeals. Affirmed.

De Bruler & Jackson, for appellant. W. T. Scott, for respondent.

GORDON, J. The act of March 9, 1893, authorizes cities in this state to issue improvement bonds in payment of the cost and expense of local improvements, etc., and provides that such bonds, when issued to the contractor constructing the improvement, or sold in the manner authorized by the act, shall transfer to the contractor or other owner or holder all the right and interest of such city in and with respect to every such assessment and the lien thereby created against the property assessed, and chargeable with the cost of such improvement. This action was brought by the respondent, a city of the first class, to recover the amount due upon a local improvement bond issued to the contractor, and by him assigned to the city, and to foreclose the same on certain real estate owned by the defendants Hill, and chargeable with the cost of such improvement, in which action Alonzo Hull, the appellant, was made a party. It appears that, prior to the levying of the assessment or the issuance of the bond in question, defendants Hill had executed a mortgage upon the premises to Hull. Upon the trial below, the court found that all of the proceedings necessary, under the law and the charter and ordinances of said city, to make the said assessment a legal charge and tax against the said property, including the letting of the contract for said improvement under the charter, the performance of the work under said contract, and the acceptance thereof by the board of public works, were duly had, and entered a decree foreclosing the assessment bond against the property, and giving the same priority over the mortgage to appellant; and from this decree the mortgagee, Hull, has appealed.

The real question to be determined is whether the lien of the assessment is entitled to superiority over appellant's mortgage, which was prior in point of time. Appellant insists that the lien given for assessments and local improvements is not a lien of the force and extent of a tax lien. Whether this position can be maintained can be determined only from consideration of the various provisions of statute authorizing the assessment, and providing the manner of its enforcement. Assessments levied for the improvement of a street are based upon the same sovereign power which is asserted in the levying of general taxes. People v. Mayor, etc., of City of Brooklyn, 4 N. Y. 419. On page 433 of Elliott on Roads and Streets, the author says: "While it is true that an assessment is not, strictly, a tax, it is also true that it is levied by the sovereign power for the general public good. It is also true that a mortgagee is benefited to the extent that the land is improved, for, to the extent that the land is

improved, to that extent is its value augmented. We cannot perceive why it is not in the power of the legislature to create a lien, and give it priority over all private rights or estates. Every one who acquires an interest in land does it subject to the right of the sovereign to lay general taxes upon it, and to impose upon it the burden of paying the expense of public improvements which confer upon the land a special benefit." It is undoubtedly true that a prior mortgage on real estate is not displaced by a subsequent assessment for local improvements, unless the statute authorizing such improvements and assessments, by express words or fair implication, otherwise provides. Subdivision 1, § 6, art. 8, of the charter of Seattle, under which this assessment was made, provides that "the city council may levy and collect an assessment upon all lots and parcels of land benefited by such improvement to defray the cost and expense thereof, which assessment shall become a lien upon all property liable therefor." Section 8, art. 8, of such charter, provides for the giving of notice, in the official newspaper of the city, to interested persons, of the filing of the assessment roll, and affords an opportunity for objections, and also authorizes the council of the city to consider objections and make corrections as it shall deem just, and that it "shall then, by ordinance, approve such roll, and shall levy and assess the amounts thereof against each parcel and lot of land, declare the same a lien thereon, and shall direct the city clerk to deliver the roll to the city comptroller, who shall forthwith deliver to the city treasurer a certified copy thereof, upon receipt of which the treasurer shall proceed to collect the same as other city taxes are collected." Said section further makes it the duty of the treasurer to give 10 days' notice of the filing of such roll, and that, unless payment is made within 30 days from the date of such notice, such assessment shall become delinquent, etc. It also provides for a penalty of 5 per cent. if the assessment is not paid before becoming delinquent, "and the sums delinquent shall be added to the annual tax roll for the current year against each lot and parcel so delinquent, and with the interest collected as other taxes." Section 8 of the act of March 9, 1893, relating to the assessment and collection of taxes in cities of the first class, provides that delinquent local assessments "shall be a part of the tax due on such property, and, with interest, shall be collected as other taxes." Section 79 of the act of March 15, 1893, provides that the lien of all taxes lawfully imposed or assessed "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"; and, in the absence of such statutory provision, it would probably be found that taxes levied upon lands take priority over every lien or incum

brance.

Butler v. Bally, 2 Bay, 244; Dunlap

▼. Gallatin Co., 15 Ill. 7.

It seems to us to follow that assessments for such improvements are put upon the same footing as general taxes upon real estate, and the liens created by such assessments have precisely the same force and effect. Counsel for appellant rely mainly upon the cases of Cook v. State, 101 Ind. 446, and Trustees v. Shotwell, 45 N. J. Eq. 106, 16 Atl. 308, neither of which cases we think applicable. The Indiana statute upon which the decision in Cook v. State was based specifically provided that the assessment "shall be a lien upon the land so assessed from the time of filing the petition." And it appears that, under the statute of New Jersey, taxes become a lien only on the estate which the owner had at the time of the assessment, and that mortgages and incumbrances prior to the assessment are not affected by the tax. Morrow v. Dows, 28 N. J. Eq. 459. It follows that the decree must be affirmed.

HOYT, C. J., and ANDERS, DUNBAR, and SCOTT, JJ., concur.

(14 Wash, 482) MUDGETT, County Treasurer, v. LIEBES, City Comptroller.

(Supreme Court of Washington. May 14, 1896.)

STATUTES-AMENDMENT AND RE-ENACTMENT-OFFICERS-COMPENSATION.

1. Act March 9, 1893, provided that the county treasurer in counties wherein there was located a city of the first class should be ex officio collector of city taxes, and fixed the salary to be paid by the city to such ex officio officer. Held that, under Const. art. 11, § 8, providing that the compensation of any county or city officer shall not be increased or diminished during his term of office, the act of March 21, 1895, designating county treasurers of counties containing a city of the first class ex officio collector of taxes, but without extra salary, does not apply to a county treasurer whose term of office began before such act took effect.

2. Act March 9, 1893, providing that the county treasurer of counties containing a city of the first class shall be ex officio collector of city taxes, and fixing the salary to be paid by the city to such ex officio officer, was not repealed by Act March 21, 1895, amendatory thereof, but, as to such portions as remained unchanged before the amending act, must be construed as continuing to be the law from the time of its first enactment.

Appeal from superior court, Spokane county; James Z. Moore, Judge.

Application by George Mudgett, treasurer of Spokane county, for mandamus against George A. Liebes, city comptroller of the city of Spokane, to compel the payment to complainant of his salary as ex officio collector of city taxes of the city of Spokane. From a judgment dismissing the application, the applicant appeals. Reversed.

Richardson & Williams, for appellant. W. HL Plummer, for respondent.

GORDON, J. The appellant was elected treasurer of Spokane county in November, 1894, and entered upon the discharge of his duties in January thereafter. By virtue of his elec tion as such county treasurer, he became ex officio tax collector of the city of Spokane, with a salary of $500 for his services as tax collector, in addition to the salary allowed him as such county treasurer. This action is brought by him against the respondent, as city comptroller of said city of Spokane, to compel the payment of the appellant's salary as such tax collector, for the months of April and May, 1895. In answer to the alternative writ granted by the court below, the respondent claimed that, by the act of March 21, 1895 (Laws 1895, p. 407), appellant's right to any salary as such city tax collector was cut off. Upon the trial which followed, the court gave judgment for the respondent and dismissed the action. From this judgment appellant brings the cause here upon appeal. His contention is that the act of March 21, 1895, supra, is unconstitutional, in so far as it operates to take away or diminish his salary as ex officio tax collector, after his election and during his term of officio. Section 8, art. 11, of the state constitution provides that "the salary of any county, city, town or municipal officer shall not be increased or diminished after his election or during his term of office." Section 4 of the act of March 9, 1893, in force at the time of appellant's election, provides that the county treasurer of each county in which there is a city of the first class is ex officio collector of city taxes of such city, and requires such officer to execute a bond in favor of the city in an amount equal to that of the bond required of him as county treasurer; and section 10 of said act is as follows: "Each city of the first class shall pay to the county treasurer for duties performed by him in collection of city taxes a salary of $500 per year, payable monthly from the treasury of said city, as other salaries are paid, which salary shall be in addition to the salary otherwise provided by law. Each city shall also pay the county one thousand dollars per annum for clerk hire." These sections are amended by the act of March 21, 1895. The amendment of section 4 consists simply in providing that the bond to the city shall be in a penal sum, "to be fixed by the city council," instead of being "in an amount equal to the bond required of him as county treasurer," as fixed by the old act; and sec tion 10, above set out, was amended by excluding therefrom the provision for compensation, and, as amended, reads as follows: "Each city shall pay the county one thousand dollars per annum for clerk hire." Counsel for the respondent insists that the effect of the amendatory enactment was to make the appellant simply county treasurer alone, instead of county treasurer and ex officio city tax collector, as formerly, and that, "having done this much, the legislature

went still further, and concluded to impose upon the county treasurer an additional duty, to wit, that of collecting the taxes of the city of Spokane, which it did in the same act."

It is too well settled to require any citation of authority that the legislature may abolish an office entirely at any time; also, that the holder of an office has no proprietary rights therein, and is subject to the will of the legislature, save only as the legislative power may be restricted by the constitution; also, that the legislature has power to impose additional duties upon an officer without providing additional compensation therefor. But neither one nor all of these propositions affords any warrant for cutting off the compensation which the law at the time of his election fixed for the discharge of certain duties, while still requiring of the officer the performance of the duties for which the compensation was originally fixed; and this is precisely, as we think, what the legislature, by the amendatory act in question, attempted to do. We cannot agree with the learned counsel for the respondent that the law which made the county treasurer ex officio city tax collector, and provided compensation therefor, was repealed by Acts 1895, pp. 407, 408 (being the act above referred to), "and the effect of this last-mentioned act was to absolutely abolish and extinguish the office of city tax collector," and that, having done so, the legislature then proceeded to impose upon the county treasurer an additional duty, to wit, the collecting of taxes of the city of Spokane, which it did in the same act. We think that the act which made appellant ex officio city tax collector was not repealed. It continued uninterrupted and in force. and the effect of the amendment was not to abolish the office. The amendatory act contained no words of repeal, but, even if it had, that could not have affected the result. In section 134 of Sutherland on Statutory Construction, it is said: "Where there is an express repeal of an existing statute, and a re-enactment of it at the same time, or a repeal and a re-enactment of a portion of it, the re-enactment neutralizes the repeal so far as the old law is continued in force. It operates without interruption where the re-enactment takes effect at the same time. Offices are not lost, corporate existence is not ended, inchoate statutory rights are not defeated, a statutory power is not taken away, nor criminal charges affected by such repeal and re-enactment of the law on which they respectively depend." In State v. Horton (Nev.) 30 Pac. 876, the rule applicable to the present question is stated to be as follows: "The effect of an amendment of a statute, made by enacting that the act is hereby amended so as to read as follows,' and then incorporating the changes or additions with that portion of the former act that is retained, is not that the portions of the amended act which are merely copied from the original act are to

be considered as having been repealed and again re-enacted. The part which remains unchanged is to be considered as having continued to be the law from the time of its first enactment." See, also, Martindale v. Martindale, 10 Ind. 566; State v. Mines (W. Va.) 18 S. E. 470; State v. Mayor, etc., of Newark (N. J. Sup.) 30 Atl. 543; Suth. St. Const. § 134. Our constitution requires that, where a section of an act is amended, the section must be set forth at length; and it follows, from this, that that part of the original section which is not repeated in the amendatory act is repealed, but that part of the original enactment which is repeated remains the same as if there had been no amendment. The act of March 21, 1895, supra, in no manner changed or lessened the duties and responsibilities which the law in force at the time of appellant's election imposed upon him as ex officio tax collector of the city of Spokane, and, in so far as it attempted to deprive him of the compensation which the law in force at the time of his election provided for the performance of such duties, it was and became in conflict with section 8, art. 11, of the constitution, supra, and hence inoperative and void.

The judgment appealed from must be reversed, and the cause remanded, with directions to the lower court to award the peremptory writ as prayed for.

HOYT, C. J., and ANDERS, DUNBAR, and SCOTT, JJ., concur.

(14 Wash. 594)

STATE v. McGONIGLE.

(Supreme Court of Washington. May 29, 1896.) HOMICIDE-KILLING PERSON OTHER THAN ONE INTENDED-INDICTMENT-EVIDENCE-RECORD.

1. That the names of witnesses were not indorsed on the indictment, in accordance with the requirement of the statute, is not a fatal error; they being written in the body thereof, and it being impossible to read it without being notified who they were.

2. It is not error to refuse motion to withdraw question of murder in the first degree, on the ground that there was no evidence of premeditation or deliberation, it appearing that defendant, after having some trouble with E., went to the barn, several hundred feet away, armed himself, returned, and deliberately fired on E., or one whom he supposed to be E.

3. On a trial of one for the killing of his father when shooting at E., evidence of prior threats made by E. against defendant, and that defendant had been told E. was a bad and dangerous man, is not admissible; there being no case of self-defense under defendant's testimony that E. threatened him, and drew a re volver on him, and that he ran away to the barn, and that, after arming himself there, he returned, being fearful that E. would do some injury to his family.

4. A person is guilty of murder in the first degree where, in shooting at one person, under circumstances such that, if he had killed him, he would have been guilty of murder in the first degree, he kills another.

5. Remarks cannot be reviewed as having been made by counsel, though an affidavit that

they were so made is included in the statement of facts, the certificate of the court not attempting to settle the truthfulness of the matters set forth in the affidavit, but merely showing that the affidavit was made.

Appeal from superior court, Yakima county; Carroll B. Graves, Judge.

Charles McGonigle was convicted of murder in the second degree, and appeals. Affirmed.

Mackinnon & Murane and Jones & Newman, for appellant. Ira P. Englehart and H. J. Snively, for the State.

DUNBAR, J. The record in this case shows that on the 11th of August, 1895, in Yakima county, Wash., one J. M. Eaves, accompanied by his wife and daughter, went to the residence of Byron McGonigle, the father of the appellant in this case. The appellant at that time made his home with his father. The avowed object of the visit was to demand some explanation from the appellant, McGonigle, for certain slanderous stories which he was charged with having circulated concerning the daughters of the said Eaves. According to the undisputed testimony, upon arriving at the McGonigle residence, about dusk, Eaves called to the appellant, who was a short distance away, saying, "Is that you, Charlie?" Here the testimony varies; Eaves and his wife and daughter testifying that Eaves said to the appellant that he wanted to talk with him about these alleged stories, and that no hostile demonstration was made on the part of Eaves, but that McGonigle immediately retreated to the barn, several hundred feet away; that the Eaves family proceeded to the house, the conversation above related having occurred at the gate; that Mrs. and Miss Eaves were asked into the house by Mrs. McGonigle and her daughter Ida, and that they went in, in obedience to such invitation; that, at this juncture, Byron McGonigle, the father of the appellant, met Mr. Eaves, and that they stopped on the porch, to talk over the matter in a friendly manner; that, while they were talking, the appellant came running from the barn towards the house, and, when within a short distance of them, said, "What are you doing there? Get out!" and at that moment fired a gun, the ball taking effect in Byron McGonigle, who immediately fell, and in a short time expired. Eaves then ran into the house, and requested his wife and daughter to blow out the light. Upon their not complying readily, he blew it out himself, and almost immediately his daughter Beulah was accosted by the appellant, who said, "What are you doing there?" At the same time he raised his gun, and fired. The daughter jumped out of the way, and the father, Eaves, received the shot. Upon this, Eaves immediately drew a revolver, and returned the shot, but the ball did not take effect. Eaves testified that, when the elder McGonigle was shot, he exclaimed. "My God, Charlie, you

have killed me!" while Mrs. McGonigle and Ida both testify that the exclamation was, "Eaves has shot me." The appellant himself testified that, when Eaves called to him at the gate, he (Eaves) made threatening advances towards him, drew his revolver upon him, and told him that, if he moved, he would blow his brains out; that he (appellant) immediately ran to the barn, and armed himself with a Remington rifle and a revolver which he kept in the barn, and returned to the house; that, when he got within a short distance, he thought he saw Eaves drawing a revolver, and that he fired; and afterwards fired the second shot at Eaves. He was not at all certain whether it was the ball from his gun that had killed his father, or whether his father was fired upon by Eaves. There were several disinterested witnesses, however, who testified that the appellant, who immediately left, related to them the circumstances of the shooting, and told them that he was afraid he had killed his father through mistake. This is, in substance, the testimony in the case. The jury found the appellant guilty of murder in the second degree, and from the judgment the case is appealed here.

The first error alleged is that the court erred in overruling appellant's motion to quash the information for failure to indorse thereon the names of the witnesses. This court has often held that the only object of the requirement of the statute in relation to indorsing the names of witnesses on the back of the indictment was to give notice to the defendant of the witnesses who were to testify against him. In this case the names of the witnesses were written in the body of the information, and it would be impossible for the defendant to read the information without being notified who the witnesses were. Therefore the defendant was in no way prejudiced by the technical omission to indorse the names of the witnesses.

The second contention is that the motion of defendant to withdraw from the jury the question of murder in the first degree, at the close of the state's main case, should have been granted, inasmuch as there was no evidence whatever of premeditation or deliberation. Inasmuch as the undisputed testimony was to the effect that the appellant left the yard after having had some trouble with Eaves, went to the barn, several hundred feet away, armed himself, returned to the house, and deliberately fired upon Eaves, or upon the man whom he supposed to be Eaves, we are unable to say that there was not sufficient evidence of deliberation and premeditation to go to the jury.

The third contention, that the testimony of Mrs. Eaves and Beulah Eaves was incompetent, is equally without merit. It was simply a relation of what took place at the time of the shooting. The same may be said with relation to the objection to the testimony of Dr. Hill The discretion of the trial court was not abused in directing the course

of examination. There seems to be no substantial merit to any of the objections raised by the appellant to the admission or refusal of testimony. There is one objection, however, which we think should be noticed. It is in relation to an attempt to introduce evidence showing that one Dickerson had told the defendant of threats made against him by Eaves. The court ruled that the threats of Eaves must first be shown to have been made by him. It is claimed by the appellant that this ruling is in opposition to the rule announced by this court in State v. Coella, 3 Wash. St. 99, 28 Pac. 28. In that case, the defendant, Coella, who was charged with having killed Deletis, was asked if any person had ever communicated certain threats that Deletis had made to him; and, upon objection, the defendant's attorney offered to prove by him that one Grossa had told the defendant that Deletis had said, "If`Coella keeps on talking about my owing him money, I will kill him." This court, in commenting on that case, said: "This testimony should have been admitted. It was a circumstance to be considered in connection with the attack which he claimed was made upon him by the deceased, not as any evidence of the attack, but as likely to have had some effect upon and tending to show the condition of his mind when attacked as to the danger he was in, or believed himself to be in. For this purpose it was not subject to the rule excluding hearsay testimony, and it made no difference whether deceased had, in fact, told Grossa anything of the kind or not; the important thing was whether Grossa had so told the defendant." The testimony offered in this case, we think, can be distinguished from the testimony offered in the case above referred to, for here it was not even attempted to be shown that Eaves had made these threats to Dickerson, but it was one step further removed, viz. it was a rumor which Dickerson had heard which was attempted to be given in evidence. But, even if the testimony could not be distinguished, it has no application, we think, to this kind of a case, for there is no contention in this case, even on the part of the appellant, that he was acting in self-defense; and, according to his own testimony, this rumor which had been communicated to him could have had no possible effect on his mind so far as creating a fear of any action of Eaves is concerned, for he testifies that Eaves had violently threatened him at the gate, had drawn his revolver upon him, and threatened to blow his brains out, and that he had to retreat hastily, and ran in a zigzag manner to prevent the expected shot from Eaves' revolver from doing him harm; and if this testimony is true, and the appellant is bound by it so far as this question is involved, it could have made very little difference to him whether any prior threat had been indulged in by Eaves or not. Under the supposition that Eaves would do him great injury, according to his testimony,

he retreated to the barn; but he did not see fit to act upon this fear, but, arming himself, he returned to the place where Eaves was, to renew the discussion. There is no pretense on his part that he was in any danger from Eaves after he had reached the barn, or that he would have been in any danger if he had remained there, but his testimony was that he returned thus armed because he was fearful lest Eaves would do some injury to his family. There having been no testimony offered to the effect that these threats which it is alleged Eaves had made reached beyond appellant himself, and to his family, we are at a loss to understand, under the circumstances as testified to by the appellant himself, how he could in any way have been prejudiced by the refusal of the court to admit this testimony. The quotation from Wharton's Criminal Law (volume 2, § 1023) cited by the respondent is very apt: "Necessity ceases to exist when the defendant, though originally in imminent danger, escapes, arms himself with a dangerous weapon, returns, and slays his antagonist. The plea of self-defense rests on the natural right every man has to protect his own life against an unlawful assault upon it by another. If, however, when secure from danger by his actual removal from a threatened assault, he voluntarily returns to meet his adversary, and renews the combat, it cannot be pretended that he acts in defense of his own life against impending and inevitable destruction. He assumes, under such circumstances, a new character. He becomes a party voluntarily entering into an unlawful conflict, and is responsible for all the consequences following his new position." The same logic applies to the offer to prove that Woolsey had told McGonigle that Eaves was a bad and dangerous man,

The following instructions of the court are alleged as error: "You are also instructed that when a person purposely, and of his deliberate and premeditated malice, attempts to kill one person, and, in shooting at such person, a bystander or other innocent person is killed by the ball from the pistol of the person shooting such person, it is murder in the first degree. I also instruct you, where a person purposely, and of his deliberate and premeditated malice, attempts to kill one person, but, by mistake or misadventure, kills another instead, the law transfers the felonious intent from the object of his assault, and the homicide so committed is murder in the first degree." We think, under the overwhelming weight of authority, that this instruction was correct. It is true that in Bratton v. State, 107 Humph. 103, the rule was laid down, under the statutes of Tennessee, that if the defendant, intending to kill the prosecutor, where the killing would have been murder in the first degree, kills the wife of the prosecutor, the offense would not be murder in the first degree. The particular statute does not clearly appear from the opinion, but the edi