(dissenting). — I did not concur in the opinion rendered in the case of Buckley v. Tacoma, upon which the foregoing opinion is founded, though my *196dissent does not appear in the record. At this late day it would be of little use to state at any great length the reasons which led me to differ from my associates in the construction of the law applied to that and kindred cases. 1, however, desire to state generally the reason which lies at the basis of the difference between us. It grows out of the fact that to my mind such decisions do not sufficiently distinguish between the right of the property owner to escape payment of taxes after the work for which they were levied has been completed, and his right, in a proper proceeding, to prevent the work being done. In the one case the rights are not asserted in due season; in the other they are. Enough appeared from the record in this and the other cases to show it was the intention of the common council to direct the work to be done at the expense of the adjoining property owners in accordance with the provisions of the charter of the city. It also appeared that notice that the city was about to proceed in the prosecution of the work was given the publicity required by the charter. This being so, it must be presumed that if the property owner would have seen a notice in the proper form founded upon proper orders of the common council, and thus been given the opportunity to appear and object to the proceedings, he would have seen the publication founded upon the defective proceedings, and would have had the same notice, in fact, of what was being done that he would have had if the publication had been in pursuance of regular proceedings and in due form.
For this reason it should be held that the publication of the notice, although such notice was defective, as well fulfilled the purpose of the charter — which was to give the property owner an opportunity to be heard — as would one in proper form.. And since a *197proper notice, published as required, would be presumed to have come to the knowledge of the property owner, there is the same reason to presume that the defective notice came to his knowledge. Hence, in the adjudication of his rights, it must be presumed that he had actual knowledge of the publication of the notice. This being so, he had the same opportunity to object to the proceedings before the work was done as after its completion. An attack upon the proceedings before the work was commenced would correspond to a direct attack upon a judgment of the court; an attack after its completion, to a collateral attack upon such judgment. Public policy requires that every property holder who has had an opportunity to make a direct attack should be precluded from making a collateral one — at least until he has shown not only that the proceedings were defective, but also thathe.has suffered injury by reason thereof.
It is manifestly unfair that the property owner, having knowledge of the fact that the city is about to improve a street in front of his property, should remain quiet until after such improvement has been made and his property thereby benefited, and then escape the payment of his proportion of the cost of such improvement by reason of some defect in the proceedings of which he might have availed himself to prevent the work being done. To countenance such a course is in effect to allow one property owner to derive a benefit, from a mistake of the officers of the city of which he had full knowledge, at the expense of other property owners who had no knowledge of such defect.
I have not overlooked the argument of the majority of the court growing out of the distinction sought to be made between mere irregularities in the proceedings relating to the improvement, and want of juris*198diction to proceed therein, and I must concede that such argument is planted upon decisions of courts entitled to much credit. It, however, seems to me that such courts have taken too narrow a view of the subject. It is a matter of almost universal experience that the proceedings of city officials in matters of this kind are seldom such as to give jurisdiction, if the technical rule enforced by such courts is given force. It follows that either a more liberal rule must be invoked, or designing property owners will escape their just share of the expenses incident to the proper improvement of the streets of the city. I think the rule should be that, where the common council is clothed with authority by law to proceed in the matter, and it does proceed, it should be presumed to have proceeded regularly. And where it appears that such notice has been given as would bring the property owner into the proceeding if it had been regularly instituted, he should be held to have consented that the improvement should be made notwithstanding the defects in the proceeding, unless he appears and makes objections, or can show that the burden upon his property has been increased by reason of the wrongful action of the officers of the city. It is only necessary to hold that a notice founded upon defective proceedings, or defective in form, but which the court can see was of the same value to the property owner as the one required bylaw, shall have the same effect upon his rights. And to that extent courts should be willing to go, rather than see such injustice done as is every day brought about by a contrary holding.
In my opinion the judgment should be affirmed.