ON PETITION EOR RE-HEARING.
Stiles, J.— The respondent asks a modification in the disposition of this case, so that it may be allowed to recover the amounts properly chargeable against lots or tracts as they may be found located between Eighth and Fifteenth streets, and between Fifteenth street and the railroad. The amendment to § 124 óf the act of 1890 (Laws 1893, p. 159), is appealed to for this relief, but although the last clause of the section as amended is very liberal in permitting a recovery, notwithstanding irregularities and defects in assessment proceedings, it has no application to cases where there has been no assessment at all, as is the fact here, for what purported to be an assessment was not, in fact, such, but was an arbitrary attempt, notwithstanding the clear provisions of the ordinance, to. confuse two independent matters, having no connection with each other. It would be grossly inequitable and unjust to compel property owners to submit to the cost and expense of defending suits merely to reduce assessments to the proper amount when the city authorities have not laid even the foundation of a levy, which is necessary to the jurisdiction, of both the corporation and the court. *387Ch. 95 of the Laws of 1893 seems to be intended to point out a way by which respondent can secure its just rights against the property of appellants.
Dunbar, C. J., and Anders, J., concur.