On Motion of Appellants for Rehearing.
It is insisted in the motion that in paving the streets the city council .invoked “the powers conferred by chapter 9, title 28 of the R. S. 1925, commonly known as the general paving law,” and that this court erred when it held that the city had a right to look to power conferred by the act 1927 referred to in the opinion disposing of the appeal. The facts with reference to the matter are that while in one of several ordinances adopted by the city council September 7, 1927, it was declared that the assessments on account of the street improvement were to be levied in the exercise of powers conferred by said chapter 9, title 28 (article 10S6 et seq.), it was declared in an ordinance adopted September 20, 1927, and again in an ordinance adopted October 15, 1927, that the city also invoked the “powers conferred by chapter 106, page 489, of the Acts of the Eirst Called Session of the 40th Legislature (1927) of Texas [Vernon’s Ann. Civ. St. art. 1105b, §§ 1-14, and art. 1105b note] which went into effect on Sep*689tember 5, 1927.” Whether in that state of the case and in view of the provision in said act of 1927 continuing in force the provisions in said chapter 9, title 28, and in view of the further provision in said act of 1927, that the powers conferred by it should ‘‘exist as alternative powers,” the city could invoke only the powers conferred by one of the acts, and if only one, which one, will not be determined, as we have concluded that the judgment was plainly erroneous on another ground and that this court erred when it affirmed it.
It appears in the record that the city council, by ordinances duly adopted and approved September 7, 1927, (1) determined that a necessity existed for paving a street on which property belonging to appellants abutted; (2)ordered the paving to be done; (3) directed how the cost thereof should be ascertained and paid; (4) fixed September 20, 1927, as the time when property owners concerned would be heard on objections they wished to urge, and provided that such hearing should continue from day to day until all who wished to be had been heard, “after which,” it was recited, “said hearing shall be closed and assessments thereafter levied” ; and (5) directed the city secretary to give notice of such hearing by publication in a newspaper published in the city. It appears, further, that at the time fixed for the hearing, to wit, September 20, 1927, assessments on account of the improvement were made against appellants and other abutting property owners, and, further, that the hearing was closed on that day. It appeared, further, that the ordinance providing for said hearing was repealed by an ordinance adopted and approved October 15, 1927, and that on that day (October 15, 1927), without any other or further .notice to property owners, the city council again made assessments against appellants and other property owners on account of said improvement. So the fact is, it appears, which was overlooked when the record was first before us, that the assessment against appellants was without notice to them and without an opportunity furnished them to be heard before same was made. That such notice and opportunity should be given was required by articles 1093 and 1094 of said chapter 9, title 28, hereinbefore referred to, and by section 9 of said act of 1927 (Vernon’s Ann. Civ. St. art. 1105b, § 9). It is held that without such notice and opportunity a city is without power to make such an assessment and that an effort by it to levy one is futile. Crabb v. Paving Co. (Tex. Com. App.) 23 S.W.(2d) 300; Hutcheson v. Storrie, 92 Tex. 685, 51 S. W. 848, 45 L. R. A. 289, 71 Am. St. Rep. 884; Beatty v. Construction Co. (Tex. Civ. App.) 275 S. W. 716; Parsons v. City of Port Worth, 44 S.W.(2d) 464, decided by this court October 29, 1931.
The judgment heretofore (to wit, on October 8, 1931) rendered by this court affirming the judgment of the court below, will be set aside, the judgment of said court below will be reversed, and judgment will be here rendered that appellee take nothing by its suit against appellants.