exercise the taxing power for appropriate purposes. By the charter it is made the duty of the city recorder, "on or before the first day of December of each year, to make a list of all taxable property within the limits of the city, which list shall be taken by him from the assessment roll for Multnomah county. Said roll, when so made out, shall be duly certified and delivered by him to the committee on ways and means of the common council. After said assessment roll has been equalized and the tax levied by the council, he shall apportion the taxes upon the assessment roll, and deliver the same to the city treasurer. He shall have power and authority to add to such assessment, at any time before delivering the same to the city treasurer, any property, either real or personal, which may come to his knowledge, and which may have been omitted in said list. And no deduction shall be allowed on account of indebtedness, except indebtedness within the city of East Portland. Any person feeling himself aggrieved by any such assessment, either in the valuation or listing of the property, may apply in writing to the council to have such assessment revised, and if the council deem the same erroneous they must correct it:" Sec. 1, article 5, City Charter. The effect of this provision is to make the assessment roll for Multnomah county of the taxable property within the limits of the city after the same has been taken or copied from such assessment roll by the recorder, and duly certified to and delivered by him to the committee on ways and means, the assessment roll of the taxable property of the city of East Portland. With the making of the assessment, the common council nor its committee has nothing to do. Their power in the premises only begins after the assessment is made in the manner prescribed and is properly certified to and delivered to them. With this roll as the basis for its action, the business of the council is to equalize the assessments and to levy a tax to meet the expenses of the city not to exceed the amount limited by the charter. Whether the work of equalizing the assessments be primarily done through the agency of a committee and then adopted by the council, is immaterial. The power is conferred and the duty is imposed upon the council, not to make or to raise the assessment of the taxable property of the city, but to equalize the assessments as between those liable to taxation under the jurisdiction, so that the burdens of taxation may be distributed equally and impartially. A tax being a burden or charge imposed for public uses, equality in the imposition of such burden or charge is as much a demand of justice as constitutional requirement, and although absolute equality like absolute justice, is not always attainable, yet the adoption of some rule or principle approximating to that end is an indispensable requirement of good government. To assist in such work and further such end, boards of equalization have been established invested with various powers. depending upon statutory regulations. For this purpose the power to equalize assessments made is expressly conferred upon the council. But the power to equalize an assessment made, or to correct it

is entirely different from the power to make an assessment: Manford et al. v. The Pleasant Grove, etc., 42 Ind., 203. By the plain reasoning of the section no power to list and value the taxable property of the city for the purpose of making an assessment of the same is given to the council, either in express terms or by necessary implication. Nor to add real or personal property to the assessment already made which may have been omitted. These powers have been confided by the charter to another agency, and must be performed by the agency upon whom such powers devolve the duty and in the mode authorized. It is true, any person aggrieved by the assessment as made, upon a sufficient showing, may have the error corrected by the council, but the authority to act in such case gives no inference of the right or power of the council to make an assessment of the taxable property in the city, or to increase a certain per centum such assessment. The only object of this is to revise or correct errors shown to exist in the particular instance in the assessment already made. But here the council have undertaken at their own instance to raise the aggregate assessed value of each and every assessment twenty per cent. above the value as assessed and certified to them. Plainly, there was no warrant for the exercise of this authority. The case of Kittle v. Sherwin, 11 Neb., 75, is directly in point upon this subject. There a city council, sitting as a board of equalization, assumed authority to raise the assessed value of all the property of the city by raising the aggregate value of each assessment a certain per cent. Upon this point the court says: "The city council, sitting as a board of equalization, had no power to raise the assessed value of all the property assessed in said city. Such raising the valuation is not equalizing in any sense. The only values that were before them were those of the property of the several persons and corporations of their own city; and their only duty was to equalize the assessments as between these, so that the burdens of taxation might rest equally upon the taxpayers of the city in proportion to the true value of their several taxable possessions," and here the power conferred and the duty is the same. The raising of the value the per centum placed upon the property by the council as a basis of taxation, was unauthorized and cannot be sustained; but this does not vitiate the assessment of such property as made by the proper officer from the Multnomah list and duly certified and delivered to their committee. This assessment of the taxable property within the city the council was empowered to equalize and levy a tax upon, not to exceed the amount limited by the charter. And their taxes upon this assessment the plaintiffs were bound to pay. Nor do they seek to escape the payment of them. The bill shows, and the fact was emphasized in the argument, that the plaintiffs had tendered and were still ready and willing to pay their lawful tax. The demurrer should have been overruled. But as it concedes the facts to be true for the purposes of the case, the prayer for an injunction should be granted: Stingle v. Nevel, 9 Or., 65. Let a decree be rendered accordingly.

* *

SUPREME COURT OF CALIFORNIA.

No. 7,294.

KIRBY ET AL. v. LONDON AND SAN FRANCISCO BANK, LIMITED.
Department One. Filed December 16, 1884.

JUDGMENT AND ORDER AFFIRMED.

APPEAL from a judgment of the superior court for the city and county of San Francisco, and from an order refusing a new trial. Sharp & Lloyd and M. H. Myrick, for the appellant.

Winans & Belknap, for the respondents.

THE COURT. Under the circumstances as disclosed by the record in this case, we are of opinion that Collier should be regarded as the owner of the stock in question at the time it was pledged to Latham as manager of the defendant bank, as collateral security for the advances. In that view there can be no doubt of the correctness of the judgment.

Judgment and order affirmed.

No. 9,313

IN RE ESTATE AND GUARDIANSHIP OF L. A. L. AND E. ROSE, MINORS.

Department Two. Filed December 17, 1884.

GUARDIAN AND WARD-REMOVAL OF GUARDIAN OF ESTATE-PETITION FOR.-A guardian of the estate of a minor cannot be removed from his trust, except upon petition showing that he has either become incapable of discharging his trust concerning the estate of his wards, r has wasted or mismanaged the same, or has failed to render an account or make a return required by the statute. A petition alleging mere inattention to the persons of his wards is not enough.

APPEAL from an order of the superior court of Kern county, reToking certain letters of guardianship. The opinion states the facts. Stetson & Houghton, for the appellant.

J. W. Freeman, for the respondent.

An

MYRICK, J. On the third of December, 1881, on petition and due notice, W. B. Rose was appointed guardian of the persons and estates of said minors, and letters were duly issued. On the twenty-fifth of February, 1882, a petition was filed for the revocation of the letters. This petition had reference to the care and attention bestowed by the guardian on the persons of his wards, and contained no averment of any fact in regard to the estate of either of them. answer was filed, denying the allegations of the petition. The issues were tried March 8, 1882, the testimony being in reference to the persons of the children, and the court revoked the letters of guardianship as to the persons, and to the order added the followg: "As to the guardianship of the estate, the court will take the point under consideration. The children, for the present, can stay

where they are." On the fourteenth of July, 1883, without further hearing being had, and without notice to the guardian or his attorney, the court made an order revoking the letters of guardianship of the estates of the wards. From this order the appeal is taken.

Sec. 1,801, C. C. P., provides that when a guardian becomes incapable of discharging his trust or unsuitable therefor, or has wasted or mismanaged the estate, or failed for thirty days to render an account or make a return, the court may, upon such notice to the guardian as the court may require, remove him.

In this case the petition presented no fact showing that the guardian had become incapable of discharging his trust concerning the estate of his wards, or unsuitable therefor, or that he had wasted or mismanaged the same, or had failed to render an account or make a return; the guardian was not called upon to respond to any charge of dereliction in regard to either of these matters; had not been heard thereon; had received no notice that any such charge was made against him. Yet the court without allegations, notice or evidence in regard to his management of the estate, made an order revoking the letters. A bare statement of the case shows the error. The order of July 14, 1883, is reversed. MORRISON, C. J., and Ross, J., concurred.

No. 9,489.

IN RE ESTATE OF A. E. ROSE, DECEASED.

Department Two. Filed December 17, 1884.

GUARDIAN AND WARD-RIGHT OF GUARDIAN TO CONTEST ACCOUNT-Attorney for MINORS. A guardian of the estate of minors has a right to appear in an estate in which his wards are interested, and file his exceptions, in writing, to an account therein, and contest the same. The court, by appointing an attorney to represent such minors, cannot take from the guardian his right to be heard.

REVERSAL OF DECREE SETTLING ACCOUNTS OF ADMINISTRATOR-EFFECT OF.-The re versal, by the supreme court, of a decree settling the accounts of an administrator, has the effect to set aside such settlement. Thereafter, any person interested may appear in the lower court, and file his exceptions to the account.

APPEAL from an order of the superior court of Kern county, settling the accounts of an administrator. The opinion states the facts. Stetson & Houghton, for the appellant.

J. W. Freeman and R. E. Arick, for the respondent.

MYRICK, J. Proceedings on settlement of an account of the administrator.

W. B. Rose had been appointed guardian of the persons and estates of the three minor children of deceased.

When the account came on for settlement, after the decision of this court on a former appeal, the guardian filed exceptions to items of the account, and asked to be heard in contesting them. court refused to hear him, holding that he had no standing.

The This

holding was had on the proposition that the letters of guardianship had been revoked, and the court had appointed an attorney to represent the minors.

An order had been made, after petition and hearing, revoking the letters of guardianship as to the persons; as to the estate, no petition for revocation had been filed, no notice given and no hearing had, but the court made an order revoking the letters as to the estates. In the matter of the guardianship of the Rose minors, opinion this day filed ante, we have held this to be error. The court had no power to revoke the letters under such circumstances: sec. 1,801, C. C. P. The court made an order appointing an attorney to represent the minors. An attorney so appointed cannot take from a guardian the right to be heard. In this case there was a guardian of the estate of the minors (general guardian for that purpose, as distinguished from guardian ad litem), and such guardian was present, asking to be heard. Any person interested in the estate may appear and file his exceptions in writing to the account, and contest the same: Section 1,635, Id. The guardian of the estate of the minors was interested as such guardian. W. B. Rose was also interested, in that he held two claims for costs on prior appeals.

The respondent makes the point that the contestant should not be heard, because his objections to the account were not filed until after the decision of this court on a former appeal. There is nothing in the point. After this court reversed the former order, there was no settlement, because the reversal set aside that which had been supposed to be a settlement, and the matter stood in the court below for further proceedings; and, under section 1,635, C. C. P., any person interested might appear and file his exceptions.

Order reversed, and cause remanded for further proceedings.
Ross, J., and MORRISON, C. J., concurred.

No. 9,489.

ESTATE OF ROSE.

Department Two. Filed December 17, 1884.

MOTION TO DISMISS THE APPEAL DENIED.

MOTION to dismiss an appeal from a judgment of the superior court of Kern county.

Stetson & Houghton, for the appellant.

J. W. Freeman, for the respondents.

THE COURT. We see no merit in the motion to dismiss the appeal herein, and the same is therefore denied.