(dissenting) — The contentions of counsel rest primarily on the well settled propositions that, where the original proceeding has failed for reasons that the legislature may lawfully obviate, and the basis for taxation still remains, namely, the public benefit received, the legislature may authorize a reassessment; that the only limitation upon the legislature, and in turn upon the city, is that in no case shall the assessment exceed the benefits accruing to the property from the improvement; that the power to make local improvements under the special assessment plan is referable to the power of taxation, upon which there is no limit until the object sought is obtained; that the courts cannot question the power or authority of the legislature to permit, by remedial or curative act, the performance of any act that will result in the final collection of the tax; that there is no limit to the power to reassess under the act of 1911, which is no more than this and other courts have frequently held to be the law; that the act permits an assessment where “from any cause” the assessment has failed, and that every possible objection is met by a provision that the reassessment shall not be made until after notice by the council to the property owner.
It is not necessary to cite the many cases to be found in our reports which sustain these propositions, nor am I disposed to question the comprehensiveness of the act of 1911. Indeed, it may be logically inferred that it was passed at the instance of the cities and private parties affected by the decisions of this court in Chehalis v. Cory, 54 Wash. 190, 102 Pac. 1027, 104 Pac. 768; Id., 64 Wash. 367, 116 Pac. 875, and Collins v. Ellensburg, 68 Wash. 212, 122 Pac. 1010. *210But, after a careful consideration of the arguments of counsel, review of the cases cited, and an acknowledgment of the foregoing principles, I am still of the opinion that the act of 1911 does not control in this case.
Our attention is called to the fact that we assumed in the case of Van Der Creek v. Spokane, 78 Wash. 94, 138 Pac. 560, that there was no law prior to the enactment of the act of 1911 which limited the tax upon property to fifty per cent of its assessed value, whereas a similar provision is to be found in the act of 1903; and that many cases of reassessment for a greater sum have been sustained under that statute. It may be true that reassessments have been sustained, but it is also true the point that the limit of power to assess beyond the amount of the estimate was not raised or discussed in any case prior to the Cory case, nor does it appear that any such reassessment was made after the amount chargeable to the property had been fixed by final judgment of the courts.
The point made in this case does not occur in any of the cases relied on. The decisions turned upon the propositions that the legislature could grant the power to reassess where the assessment had failed for any cause, and, the limit of the burden to be imposed being defined in the constitution as the extent or amount of benefit, the property owner was without remedy to raise any question other than the question of benefit and the amount of the assessment.
The act under which the improvement was made in this case arbitrarily fixed a limit of benefit. It was apparently passed to cure the loose methods theretofore prevailing, and to give the property owner some notion of the burden to be imposed. It required a notice, not of the amount of the assessment only, but of the proposal or intent to make the improvement. It was so drawn that in its workings it resulted in a compact between the city and the property owner. If the estimate seemed reasonable, the property owner might rest under the legal assurance that his prop*211erty would not be eventually invaded by a proceeding brought under the plea of a right to assess or to reassess without limit up to a sum arbitrarily asserted to .be within the limit of actual benefit. The limit of power was in the act; to go beyond it would operate as a constructive fraud upon the property owner, who might be lulled into a sense of security by the carelessness or design of the council, and eventually suffer the confiscation of his property.
The governing principle is so well stated in the Collins case that it needs no repetition. It is quoted in the original decision of this case. (Kuehl v. Edmonds, 85 Wash. 307, 148 Pac. 19). It is enough to say that the city should be estopped to exceed the estimate in the actual cost of the work. The city, as in the Cory and Collins cases, had submitted a plan which the property owner either assented to or was bound by after protest. The statute fixed the rights and the relations of the parties. When the city departed from the plan proposed, its acts were challenged.
Taking the case at bar: The city council went in the teeth of the decision in the Cory case and, upon the suit of Peabody v. Edmonds, 68 Wash. 610, 123 Pac. 1018, it was held that an assessment in excess of the estimate was void. A petition was thereafter filed in which we were asked to tell the city what to do; to define a procedure whereby it could collect the excess from the property owner. This, for obvious reasons, the court refused to do. (Peabody v. Edmonds, 72 Wash. 604, 131 Pac. 250.) There was a judicial finding that the statute in force at the time fixed the rights of the parties, and that the city was estopped to charge more than the estimate.
Moving in a fog of its own creation, the majority assumes to correct our former holding that a reassessment after a judgment would deprive the property owner of something of value, a vested right. It is said:
“But the property owner is robbed of nothing. His judgment in the first assessment, has insured him a hearing on *212the question of proportional benefits [He had this without his judgment] which is the only constitutional right he ever had in the premises.”
The majority has failed utterly to see that the law gave to the property owner more than a mere right to protest the amount of his assessment. He was guaranteed the right by statute to protest against the improvement. When the city did not keep the faith of the statute, which, as we have often held, is as binding upon a city as is the constitution itself, and the property owner has taken a judgment fixing the limit of the assessment at the limit fixed by the statute, he has been deprived of something of value, a judgment fixing the extent of his liability. That a judgment vests a right that cannot be impaired by a subsequent statute is primer law. 36 Cyc. 1211. It follows that the right to insist upon a proportional assessment is not the only constitutional right the property owner has in this case, although we may grant that, but for the judgment, the argument of the majority is sound.
As shown in our former opinion, the legislature cannot, under the guise of a curative act, grant a right or power resting in jurisdiction that did not exist at the time the right of the taxpayer became fixed. The legislature can cure a defective execution of power or any omission or irregularity, but it cannot take away a right that is vested under an existing statute, or cure an act that was ultra vires at the time it was done. The act of 1911 is, in legal effect, no more than an attempted repeal of the limitation fixed by the act of 1903; Laws 1903, p. 231. The assessment in this case did not fail because of any error, defect, or omission in the procedure. It failed pro tanto because the city did not have jurisdiction to assess for any sum greater than the estimate.
It was strenuously objected in the Cory case, as here, that the estimate was not jurisdictional; that it involved only a question of judgment, and that there was no more than an error of judgment, an irregularity, and so long as the as*213sessment did not exceed the benefit, the property owner has no vested right, and cannot complain so long as the assessment does not pass the limit of benefit. Our holding was that the legislature had fixed the limit of benefit. The right of the legislature to do this is noticed in the Rucker Brothers v. Everett case, 66 Wash. 366, 119 Pac. 807, where the court says:
“There is no constitutional limit of this nature to local assessment taxation. Hence, the law-making power could have left the amount entirely without limit of this nature, or could have fixed any limit deemed expedient.”
The right to notice of the intention to improve and to protest in such a case is fundamental, as held in the Cory case. It is held, without division of opinion, that, where juridical facts are wanting, they cannot be supplied by a subsequent proceeding authorized by a retrospective law. A legislature cannot impair vested rights by a curative act. 2 Lewis’ Sutherland, Statutory Construction, 675. A vested right is defined in Black’s Law Dictionary as follows:
“Rights which have so completely and definitely accrued to or settled in a person that they are not subject to be defeated or cancelled by the act of any other private person, and which it is right and equitable that the government should recognize and protect, as being lawful in themselves, and settled according to the then current rules of law, and of which the individual could not be deprived arbitrarily without injustice, or of which he could not justly be deprived otherwise than by the established methods of procedure and for the public welfare.”
Where the act would operate to deprive the property owner of the right to protest the improvement when proposed, or to appeal from or review the act of the council — privileges which were given him under the law existing when the improvement was made — and the limit of the assessment has been fixed by a court of competent jurisdiction, whether rightfully or wrongfully, it should not be seriously contended that this right is not vested.
*214Irrespective of statute, no assessment can be levied in excess of benefit. Let us suppose that there is no constitutional inhibition, and a city should make an improvement that required a tax in excess of benefits, and the legislature passed an act permitting an assessment without reference to benefit, or ten per cent in excess of benefits. Such an act would be admittedly void. The same principle applies here. It was within the province of the legislature to fix the limit of benefit, and, having done so and the proceeding being regular and having passed to judgment, it cannot, by a subsequent act, repeal that limit, fix a greater limit, or say that the limit is the actual benefit received.
We have said heretofore that the statute under which the assessment was made fixes the rights and obligations of the parties. The right of the city is to assess a sum equal to the estimated cost, and the duty of the property owner is to pay within that limit. Neither party could claim a vested right in the remedy, applying to either the right or the obligation. Curative acts presuppose jurisdiction to do the thing which is attempted to be cured. They cure irregularities in exercising a power lawfully possessed; beyond this they are never sustained. Harris v. Ansonia, 73 Conn. 359, 47 Atl. 672.
In Page and Jones, Taxation by Assessment, § 981, the rule is stated: “If an estimate is a jurisdictional fact, these curative statutes do not apply where no estimate has been made.” By the same reasoning, it would seem, where an estimate is made under a valid statute and the improvement is made in defiance of it, that a curative act would not apply. In Erie v. Brady, 150 Pa. St. 462, 24 Atl. 641, the law required an estimate of the probable cost of the improvement. No estimate was made. The assessment was held void. The passage of an act repealing the requirement of an estimate was obtained. (The act of 1911 is no more nor less than a repealing statute.) Upon suit brought, the court held that *215the curative act did not validate the proceeding. See, also, Erie City v. Brady, 127 Pa. St. 169, 17 Atl. 885.
Mr. Lewis, in his work on Sutherland, Statutory Construction, § 284", says:
“A contractor for grading streets was authorized by the existing law to sue delinquent abutters for unpaid assessments. This right of action was held a part of the contract and not taken away by repeal of the law creating it.”
citing Creighton v. Pragg, 21 Cal. 115. The rule of the case is stated in the syllabus:
“Where a contract is made and executed in pursuance of a statute, which also prescribes the parties against whom and the mode in which it may be enforced, the right to enforce it in the manner prescribed is a part of the contract, and is not affected by a subsequent act repealing the provisions in reference to the enforcement of the contracts authorized by the statute under which it was made.”
It would seem, if the right of the creditor in the transaction is fixed by the existing law and cannot be diminished by a subsequent law, that the liability of the property owner could not be enlarged by like methods.
In Matter of Second Avenue M. E. Church, 66 N. Y. 395, the legislature had, by general law, provided that property should not be assessed for a sum exceeding one-half the value of the property as valued by the assessing officers. A greater assessment was made under a subsequent act providing that no assessment should be vacated for an omission in the performance of any official duty or in carrying out the details of a law or ordinance, or for any irregularity. It was held that the act was not retroactive. The court, in passing, touches the very point in issue here:
“A proviso in a grant or enactment, is something taken back from the power first declared. The grant or enactment is' to be read, not as if the larger power was ever given, but as if no more was ever given than is contained within the terms or bounds of the proviso.”
*216And in discussing the curative act, the court says:
“The matter alleged by the appellant is not an irregularity, it is lack of fundamental power; it is not an omission to carry out the detail of a law, it is the total want of authorizing law; it is not a defect in the authority to perform a duty imposed, which supposes an official obligation without power adequate, but it is a case of no power given because no duty is imposed; it is not an omission to perform a duty imposed, but a case where, as last said, there is no duty created.”
The words “or for any cause,” in the act of 1911, must be held to mean any cause within the constitutional limit of legislation.
In Mayor etc. of Baltimore v. Horn, 26 Md. 194, there had been, as here, a previous adjudication of the invalidity of the proceeding. It was settled by the judgment of the court that the mayor and council had exceeded their powers. In this dilemma, the city authorities adopted measures for, and did procure curative acts of the legislature which authorized them to pay for the improvement and to collect the costs thereof as a tax against the property. In passing on the right of the property owner as it had been fixed by the previous judgment of the court, and'of the power of the legislature to pass a curative act after judgment, the court said:
“The most prominent objection to this law, taken in the argument by the counsel of the appellees, was that the legislature in passing it, exercised judicial power, which, by the Declaration of Rights, and numerous decisions in this state . and other states of the Union, which separate the judicial from the legislative and executive powers of government, it could not assume and exercise. And this position, we think, is well taken. When this law was passed, the rights of the parties under the law of 1856, ch. 164, had been judicially determined by this court. In the case of Porter v. The Mayor & City Council, this court had adjudged that the parties assessed in certain proceedings under that law, were not liable for the assessments, and had perpetually enjoined the city authorities from proceeding to collect them; and yet the law of 1864, ch. 344, passed after that decision, expressly authorized those authorities to proceed and collect them. It *217adjudged those parties to pay that which this court, in a regular proceeding, determined they were not bound to pay. It, in effect, and that most plainly, reversed the judgment of this court. That which this court said was illegally done, or done without authority of law, or in contravention of law, and that the parties could not be assessed for, this act of assembly clearly declares shall be paid for by the parties, although they were relieved from that payment by the final determination of this court. There certainly could not be a more plain assumption of judicial power by the legislature, than was exercised by the enactment of the law of 1864, ch. 344, and as such, this law must be pronounced inoperative and void. It is unnecessary to repeat the reasons and grounds which have guided the courts in adjudications of this kind.”
Other cases which seem to me to be in point are cited in the original opinion of this court.
Mr. Gray, in his work on Limitations of Taxing Power and Public Indebtedness, questions the broad rule which rests on jurisdiction, but, nevertheless, finds satisfactory ground upon which to rest the judgments of the courts holding that a legislature cannot, by a repeal of an existing law or a curative act, take away a right vested under an existing law. He says in § 1252a:
“If the general rule be granted that the legislature can validate omissions which it might have authorized in the first instance, there can be no escape from the conclusion that it can validate even the most important omissions in statutory procedure. The truth seems to be that there are certain requirements, customarily inserted in statutes, which the citizen has a right to rely on; that these more important requirements approach almost to the dignity of constitutional rights; that where the citizen has relied on them a kind of estoppel, to speak very loosely, is raised against the state; and that in such cases the rule that the legislature may validate the omission of acts which it might have dispensed with in the first instance is limited by the greater rule that legislative acts which amount to plain arid flagrant injustice amount to a taking of property without due process of law, *218by whatever theory the taking is sought to be justified. Acts of this class are conceived to be acts which are made by statute to be conditions precedent, by performance of which the administrative officers acquire authority to act at all; and which are links in the chain of procedure by which the citizen may be deprived of his property.”
So that, whether we call the governing principle juristic, as we did in the Cory case, or one of estoppel, as we did in the Collins case, the opinions are sustained in sound reason, and I am not disposed to sanction an overruling of them by a legislative enactment.
It would seem that we did not comprehend the law when writing our former opinions; that we have been the victims of what is now called “judicial attrition.” I do not know what that may be, but I do know that the decisions of courts were first reported in the year 1066, and from that time until this court found a way to say that its former adjudications upon the subject-matter of the present controversy mean nothing, it has been understood that a final judgment meant something to the one who had prevailed in an action at law or a suit in equity. The majority has, however, with a gravity that would be ludicrous if it were not for the disastrous consequences to the property owner, held, for the first time in the history of jurisprudence, that a judgment of the supreme court of this great state is a liability instead of an asset.
This decision puts us in a most unenviable position. While the court may be applauded for its dialectics, it would seem that we should, in simple honesty, have said to Cory, and to Collins, and to Peabody, and to Kuehl that their fight was a futile thing, that they had no right that could not be taken away from them by another and an independent proceeding; that a judgment of this court would not evidence their legal rights, but rather their folly in appealing to the courts; that, while technically they were right, it would be for their best interests to hold against them so as to save them the added *219costs of a subsequent proceeding which the judgment of the court would not bar.
It should not be understood that I hold that a city cannot make a reassessment where the original assessment has failed for any cause. What I do insist is the law, is that, where a limitation is willfully ignored, and the citizen challenges the proceeding — where the parties clinch and go to the mat— the judgment is a final adjudication of their rights, whether right or wrong.
This decision may satisfy the frigid heart of reason, but it withers the tender soul of conscience. It will encourage those who, in these times of shifting sentiment, say that some courts never make a precedent and never follow one. It will invite appeals, for surely no lawyer will feel safe in advising his client that the law has been settled by a former decision of the court, or that a judgment once entered is final.
The intent of the law, under which the several cases now discredited were decided, was to prevent a careless administration in assessments for public improvements that had well nigh become a scandal and an outrage upon the rights of the property owner.
Notwithstanding the letter, spirit, and intent of the law, the court has held that the limitation means nothing, and that, although the rights of the parties have been settled by a judgment, the city council can, in an independent proceeding, assess at will to cure their excesses, and that the citizen must bear a burden which, if disclosed in the beginning, would have led to such protest as to defeat the whole scheme.
The council could lawfully proceed only under a fixed limitation. My position can be illustrated by resort to an analogy. The law provides that actions upon written contracts shall be begun within six years. Let us suppose that an action had been begun, and this court had held that it could not be maintained because it had not been begun within the *220time limited. Then say that the legislature had passed a law that all actions upon written contracts that had been defeated “or failed from any cause” might be begun anew and prosecuted to judgment. I had thought that no court on earth would hold that it could be done, but since the legislature has an unquestioned power to fix a limitation in the first place, and a judgment is no longer a vested right, I imagine the court would, if consistent, hold that the new action could be maintained.
Time and space will not permit a further discussion. 1 said in one case, Kincaid v. Seattle, 74 Wash. 617, 134 Pac. 504, 135 Pac. 820,
“An owner of private property in a city has few rights that the city is bound to respect, but the rights which the constitution gives him are his, and until the people modify their will, no city can take them away.”
I claim the privilege of withdrawing that statement, and in lieu thereof, saying that the citizen has no rights that a city council is bound to respect — that is, to say, such is the present state of the law.
Bausman, J., concurs with Chadwick, J.