Bass v. City of Casper

Blume, Justice.

The parties will be hereinafter referred to in the same manner as in the court below. Walter L. Bass, plaintiff, brought this action on behalf of himself and all others similarly situated against the City of Casper and its treasurer, defendants, to enjoin the collection of special assessments made by said city under certain special assessment proceedings for grading and construction of cross walks, curbs and gutters, and to remove the cloud of title caused by said assessments. The proceedings therefor were initiated by the council of said city by passing, on August 4th, 1919, a resolution of intention creating an assessment district and describing in detail the property embraced therein, which includes the property of the plaintiff, and stating that all of said property will be specially benefited by the proposed improvement. Sections 3 and 4 of said resolution are as follows:

“Sec. 3. The character, kinds and extent of said improvements shall be as follows, to-wit: The construction of necessary grading, cross-walks, curbs and gutters, together with the necessary fixtures and attachments for surface drainage of said streets, and portions of streets) so designated in paragraph one above set forth.

See. 4. That no part of said improvement shall be paid out of the general fund or road fund of the city of Casper. ’ ’

August 18th, 1919, was fixed for the time at which all remonstrances and objections were to be heard. Notice of the hearing was given, but no remonstrances or objections to the improvement were filed. On September 2nd, 1919, accordingly, said council passed an ordinance, reciting the passage of said resolution of intention, and notice thereof, and that no objections had been filed; it was therein ordered that the above improvement should be made, and that plans and specifications should be prepared; the termini of the improvement district were also therein fixed. The plans and specifications were filed on October 20, 1919. A contract for said work, after duly calling for bids, was entered into on October 25, 1919, and the work was completed within about a year. ’ An assessment roll was made up and filed about October 1st, 1920; notice thereof and for the hearing thereon was duly given and the assessment roll was duly confirmed by said council on November 29, 1920, no objections whatever having been filed. Plaintiff’s property was assessed in the sum of $185.68. The value of said property does not appear. This action was instituted January 3rd, 1921. The court below entered a decree annulling the assessment made, and from that judgment the defendants have appealed.

The proceedings were had under Chapter 129, (C. 120, S. L. 1915) Sections 1966-2040, of the Wyoming Compiled Statutes, 1920. The council of the city is invested with plenary powers to cause local improvements to be made and assess the cost thereof against the property benefited. (Secs. 1966, 1967.) The procedure to be followed is specified, but it is unnecessary to state it in detail. The improvement must be initiated by the council by a resolution of intention to make it and must among other things state “the character, kind and extent of the improvement.” (Sec. 1971.) Notice of the hearing on said resolution must be given, by publication and protests may be filed. If over one half of the owners of the property to be assessed protest, the improvement may, nevertheless, be made by a majority vote of the council, but a protest by the owners of two thirds of the property stops the making of the improvement for a period of at least six months, unless, in the meantime the owners of a majority of the property petition to have said improvements made. (Sec. 1972.) Upon the passage and publication of the resolution of intention, the council has jurisdiction to proceed. (See. 1973.) If no remonstrance is filed, the council may make the improvement, pass an ordinance to that effect, cause plans and specifications to be made thereof, call for bids and let the contract. (Secs. 1976, 1980.) When the contract has been awarded the “city engineer shall forthwith proceed to levy an assessment upon the property included in the district as described in the ordinance ordering said improvement,” according to a method called the zone system, unless the district is an enlarged district, which is not the case here. (Secs. 1983, 1984.) Notice of the hearing on the confirmation of the assessment roll must be published five times in a daily, or two times in a weekly, newspaper, and at least fifteen days must elapse between the date of the last publication and the date of the hearing. Objections, the grounds of which are not limited by the statute, must be filed in writing, and “objections not made within the time and manner herein prescribed shall be conclusively presumed to have been waived.” The council may correct, modify or set aside the assessment roll. (Sec. 1985.) The right of appeal is given to the district court, and from the latter to the Supreme Court, with power in said courts to correct, change, modify, confirm or annul the assessment insofar as it affects the property of the appellant. (Sec. 1987.) Upon the confirmation of the assessment roll by the council, the regularity, validity and correctness of the proceedings relating to the improvement and assessment shall be conclusive in all things upon all parties and cannot in any manner whatever be contested in any proceedings whatsoever by any party not filing objections to the confirmation of the assessment roll and not appealing, except (1) where the property does not appear on the assessment roll, or (2) if the assessment has been paid. (Sec. 1988.) If the council has acted in good faith, without fraud or oppression, the assessments made are declared to be valid, and it shall be no objection to the validity thereof, among other things, that it was made by an unauthorized officer or person, provided it is confirmed by the council. (Sec. 2019.) It may be said here that manifestly the provisions of waiver in Sec. 1985 and Section 1988 apply to persons not filing objections ; that is to-say, they apply to independent and collateral proceedings and not to objections made in the confirmation proceeding itself. (In Re Grandview Local Improvement Assessments, (Wash.) 203 Pac. 988. Van Der Creek v. Spokane, 78 Wash. 94, 138 Pac. 560.) Inasmuch, therefore, as full provision has been añade by these sections in regard to collateral proceedings, it would seem clear that the provisions of Section 2019 are intended to apply as well to objections made in the confirmation proceeding itself, and are inteaided to cover the specific irregularities therein pointed out, aaid, perhaps, other minor 'irregularities; provided, however, that the council has acted in good faith, and without fraud or oppression. No irregularity, of course, can be successfully asserted in a suit to enjoin the collection of an assessment, which would not coiastitute a valid objection, in the confirmation proceedings. (See Collins v. Ellensburg, 68 Wash. 212, 122 Pac. 1010.)

1. Counsel for plaintiff contend that the resolution of inteaitioai failed to state the character and extent of the improvement to be made, as required by Section 1971; that this requirement is jurisdictional and that hence the assessment made is void. Under our statute the plans and speeificatioaas for the work contemplated are made after the resolution of intention is passed, and we cannot give to the requirement of describing the character and extent of the proposed improvement that rigid construction that is given it where the plans and specifications are made before the passage of tbe resolution of intention. Still tbe intention undoubtedly was to enable tbe property owner to make up bis mind as to wbetber or not to remonstrate against tbe proposed improvements, and give him an opportunity to lay bis objections, if any, before tbe council. Hence a reasonable description of tbe improvement contemplated should be given. In tbe case at bar, tbe proof shows, for instance, that no grade bad ever been established by the city, and hence it was impossible, at the time of the passage of the resolution of intention, for the property owner to estimate as to how much grading, if any, was to be done. Many cases have held that a description of the improvement, such as given in the resolution of intention, involved in this •case is defective. We cite only a few. (City of Chicago v. Iron Co., 293 Ill. 109, 127 N. E. 349; Evans v. City of Helena (Mont.), 199 Pac. 445; Buckley v. City of Tacoma, 9 Wash. 253, 37 Pac. 441; Schwiesau v. Mahon, 128 Cal. 358, 60 Pac. 927.) The rule that the provisions of the statute must be pursued is applied with much strictness in cases where there is a direct attack upon the proceedings, and where there is a departure from the statute in any substantial particular the proceedings will be ineffective. (Elliott on Roads & Streets (3rd Ed.) Sec. 328.) Municipal corporations possess no inherent power to levy assessments for local improvements. There was no such power at common law. Under our system the power of taxation is exclusively vested in the legislative branch of the government, which, however, may delegate it to municipal corporations. If it has been so delegated, then the mode of exercising the authority is that provided by the statute and no other. (Hancock v. City of Muskogee, 250 U. S. 454, 39 S. Ct. 528, 63 L. Ed. 1081; Birmingham v. Wills, 178 Okla. 198, 59 So. 173; Elliott, supra, Sec. 665.) If, then, the objections to the sufficiency of the description of the improvement had been made in the proceedings for confirmation of the assessment herein, we think the defects pointed out would have been fatal. But this wras not done. In the case at bar the attack is a collateral attack on the judgment rendered by a tribunal, established by law, finally making and confirming the assessment herein, and the question is whether that can be done in an equity suit, such as this, or whether the objection should have been raised before the council of the city in the manner pointed out by statute.

Many cases are cited by plaintiff’s counsel. It is impossible, in order to retain this opinion within reasonable compass, to review them all. But we shall refer to some general statutory provisions which underlie at least many of the cases, in order to show that they are distinguishable from the case at bar. The California courts have generally adhered to the holding — -though this holding is somewhat shaken by Watkinson v. Vaughan, 182 Cal. 55, 186 Pac. 753—that the requirement that the extent of the improvement must be stated in the resolution of intention is jurisdictional, that a failure to do so is fatal to an assessment under it, notwithstanding the curative sections of the statute. Many of the cases from that state have been decided under the Vromen Act and amendments thereto, or a statute similar thereto. Examining that act (c. 153, Laws 1885) we find that the assessment is made by the Superintendent of Streets without any notice whatever to the property owner, and assessment warrants are issued thereon. Apparently the property owner is bound to follow the proceedings and know at his peril when the assessment warrant is issued. Under Section 11 of the act he has the right to file objections to the assessment; the right is limited in scope. Within thirty days after the date of the warrant he may appeal to the council from • the ruling of the Superintendent - of Streets, upon publishing notice to that effect for five days. The decision of the council is conclusive as to all ‘ ‘ errors, in-formalities and irregularities,” and all defects in any of the proceedings prior to the assessment are cured, provided that “notice of the intention of the City Council to order the work to be done” has been published for the length of time prescribed by law. The improvement act of 1911 (c. 397) closely follows the provisions of the Vromen act. So in Montana, under section 13, c. 89, no irregularities or de-feets are cured, except under the special proviso that “the notice of the passage of the resolution of intention has been actually published and the notice of improvement posted, as provided in this act.” The proviso in Sec. 9, c. 142, Montana Session Laws 1915, in requiring that the provisions for the resolution of intention shall have been strictly complied with, is even stronger. Sec. 644 of the Rev. Laws, Oklahoma, 1910, so far as applicable here, provides that an assessment shall not be set aside for any reason £ ‘ other than for the failure of the city council to adopt and publish the preliminary resolution provided for.” Of course, where the legislature, as in the foregoing states, provides that the preliminary notice cannot be dispensed with or waived, no other conclusion, since the statute is the source of the power of the municipality, could be reached than that such notice is jurisdictional. Cases decided under such statutes can be of no particular help in determining the question before us. In Utah the only objection that can be made to the assessment is that it is unequal and unjust. And in no event does the statute attempt to cure anything but “errors or irregularities.” (Secs. 682, 683, Comp. Laws 1910.) In Oregon, the cases of Henderson v. City of Sheridan, 97 Or. 149, 191 Pac. 350, and Byers v. City of Sheridan, 97 Or. 154, 191 Pac. 35, were decided under the provisions of the charter of that city, which is found in Session Laws 1891, p. 361 et seq. The only notice provided for is that in Sec. 58, which must be given before the improvement is ordered. The assessment is provided for in Sections 65 and 66, and is made according to area and no notice thereof whatever is given to the property owner. The situation is similar in other cases cited from Oregon. These cases, therefore, present no situation like that in the ease at bar. Buckley v. City of Tacoma, supra, was decided under a statute containing no curative or waiver provisions. Most of the cases cited from Illinois are cases where the questions involved were raised on direct attack. Nor do we find curative or waiver provisions in the statutes of that state governing local improvements. That appears to be true also in most of the other states from which cases are cited, or the curative provisions go only to irregularities. City of Bluffton v. Miller, 33 Ind. App. 521, 70 N. E. 989, was an action to enjoin the contractor from doing the work contemplated under the improvement, and the action was held to be proper. We may say in this connection, that it may well be questioned whether a property owner should be compelled to wait in all cases, and solely rely upon his right, to appear in the confirmation proceedings in order to defeat the assessment against his property: Where a remonstrance, for instance, is filed by the owners-of two thirds of the property subject to assessment and it is ignored, it may well be held that, particularly in view of our re-assessment law, the owner subject to assessment should have the right to enjoin the performance of work not legally let. In such and perhaps other cases where the essential steps required by statute are not taken, the remedy provided by statute should not, perhaps, particularly in view of our re-assessment law, be considered entirely adequate as to one who institutes his action of injunction seasonably and before intervening rights have accrued. It is said by Elliott, supra, Sec. 770, that one who asks for an injunction before the work has been done or rights have been acquired under the contract is in a very much better situation than one who has exercised no such diligence.. Thus while, in the administration of justice, the rights of diligent parties whose property is sought to be assessed, should be protected by a court of equity, at least where no other adequate remedy is provided by law, so, on the other hand, we should not forget that due consideration must also be given to the rights of a contractor whose money and labor is expended to benefit and enhance the value of the property of others. And it seems to be true, as said in the case of City of Denver v. Campbell, 33 Colo. 162, 171, 80 Pac. 142, that:

“the trend of the decisions of recent years involving questions affecting the validity-of municipal improvements, is to be less technical than formerly, and to require owners whose property may be assessed- for such improvements to be at least reasonably diligent in protecting their rights before the improvements are completed. ’ ’

Inasmuch, however, as this case was not brought to enjoin the work under' an improvement contract, it is unnecessary for us to determine what our decision would be if such a case were brought before us. 'Without analyzing the cases cited by counsel for plaintiff further, let us simply say that we have examined them all, and we deem none of them decisive of the case at bar.

As we said, the legislature, subject to constitutional limitations, has plenary power to provide in what manner the municipality shall proceed in making assessments for local improvements. Its directions must be followed, and at least a substantial compliance therewith is essential in order to make the assessment valid. If Section 1971 stood by itself, without being modified, conditionally or otherwise, then we should be compelled to hold that failure to comply therewith in a substantial manner would be fatal. But the legislature has a right to say under what circumstances non-compliance with certain directions shall be fatal. (Ex Parte Gudenrath, 194 Ala. 568, 69 So. 629.) It cannot, of course, waive constitutional requirements, or, generally speaking, cure constitutional defects by a mere curative provision. (City of Denver v. Londoner, 33 Colo. 104; City Street Imp. Co. v. Pearson, 181 Cal. 640, 185 Pac. 962.) A property owner is entitled, at least in assessment proceedings like ours, to his “day in court,” and the legislature must provide sufficient notice to be given him which will constitute due process of law. No assessment can be valid, unless the council in making it has jurisdiction of the subject matter and of the person and the particular property assessed: The principles relating to this subject are stated or discussed in Elliott, supra, Sections 329, 334-339, Sec. 360; Jackson v. Smith, 120 Ind. 520, 22 N. E. 431; Brown v. Central Bermudez Co., 162 Ind. 452, 69 N. E. 150; Pittsburgh etc., R. Co., v. Tabor, 168 Ind. 419; 77 N. E. 741; City of Duluth v. Dibblee, 62 Minn. 18, 63 N. W. 1117; City of Birmingham v. Wills, supra. The statute confers upon municipalities plenary jurisdiction over local assessments, and if the particular property sought to be assessed is within the territory of the'munieipality, and is not, by law, excluded from the operation of the power granted by the legislature, then the municipality may be said to have jurisdiction of the. subject matter. The council must, of course, as such, in some manner initiate and set in motion the power conferred upon it by law, or unless it does so, the steps taken would be those of the individual members of the council and not the council itself. (Garner v. City of Anniston, 178 Ala. 430, 59 So. 654; Brown v. Bermudez Co., supra.) The statute prescribes various steps to set this power in motion, among which are (1) the resolution of intention; (2) the ordinance ordering the improvement; (3) the letting of the contract. Jurisdiction of the persons affected is by the statute directed to be acquired by two different notices, the first in connection with the resolution of intention; the second in connection with the confirmation of the assessment roll. Unless the legislature directs otherwise, not all of these steps are necessary, and not both of these notices need be given to confer complete jurisdiction, assuming that, pursuant to law, the steps actually taken and the notice actually given constitute due process of law. The legislature has the right to dispense with some of these steps in the first instance, if at some stage of the proceedings, the property owner has been left the opportunity to object, and the legislature has the equal right to provide that the omission of steps and notices, not constitutionally necessary, shall be considered waived and the defects cured, unless objections are filed in the time and manner provided by law. (Ex Parte Gudenrath, supra; City of Denver v. Campbell, supra; City of Denver v. Dumars, 33 Colo. 96; 80 Pac. 114; City of Denver v. Londoner, 33 Colo. 104; 80 Pac. 117; Londoner v. Denver, 210 U. S. 373; 28 Sup. Ct. 708; Hancock v. City of Muskogee, 250 U. S. 454, 39 S. C. 528; Barfelt v. Gleason, 111 Ky. 491, 515, 63 S. W. 961; Spencer v. Merchant, 125 U. S. 345, 8 Sup. Ct. 921; Adams v. City of Roanoke, 102 Va. 53, 63; 45 S. E. 881; Chase v. Trout, 146 Cal. 359, 80 Pac. 81; Watkinson v. Vaughn, supra.) It has been repeatedly held ,that all preliminary proceedings in connection with local improvements, such as resolutions of intention, petitions, and others, may be dispensed with by the legislature in the first instance. These steps are administrative in character and are taken by the council pursuant to its jurisdiction of the subject matter. We need cite only a few eases. (Milliken v. Crail, 177 Ind. 426, 98 N. E. 291; Brown v. Bermudez Co., supra; Allen v. Bellingham, 77 Wash. 469, 473, 137 Pac. 1010; Chandler v. Puyallup, 70 Wash. 622, 127 Pac. 293. Ex parte Gudenrath, supra; City of Birmingham v. Wills, supra; City of Denver v. Londoner, supra; Londoner v. Denver, supra; Hancock v. City of Muskogee, supra.) And, assuming that the city has set in motion its jurisdiction of the subject matter — and there can be no question in this case but that it has done so without reference to the resolution of intention — then, under our statute, the final notice given of the hearing for the confirmation of the assessment is and constitutes due process of law. (Ex parte Gudenrath, supra; Birmingham v. Wills, supra; Londoner v. Denver, supra; Hancock v. City of Muskogee, supra; Hughes v. Parker, 148 Ind. 692, 48 N. E. 243; Pittsburgh etc. R. Co. v. Fish, 158 Ind. 525, 63 N. E. 454.) What the legislature could have dispensed with in the first place, it has power, as we have seen, to declare waived, or the defects therein cured, unless objections are filed as provided by law. (See cases above cited. Also 26 R. C. L. 94; Tibbetts Pac. Co. v. Firth (Cal. App.) 200 Pac. 976; Ensign v. Barse, 107 N. Y. 338, 14 N. E. 400, 15 N. E. 401; Nottage v. Portland, 35 Or. 539, 58 Pac. 883, 76 A. S. R. 513; Thomas v. Portland, 40 Or. 50, 66 Pac. 439.) And the question, therefore, is, whether, in spite of the fact that the city council had in this case, so far as constitutional requirements are concerned, full and complete jurisdiction over the subject matter as well as of the persons and property of the plaintiff and other property owners in the district without reference to the resolution of intention or the notice thereof, the legislature has determined that this resolution of intention of the character mentioned in Section 1971 and the notice thereof is, nevertheless, indispensable, or, on the other hand, has the legislature determined that unless objections are filed as mentioned in Section 1985 in the proceedings for confirmation of the assessment roll, the defects in said resolution of intention and the notice thereof, are waived and cured, as provided in said Section 1985 and in Section 1988? Let us examine some of the cases bearing on the question in hand, decided in states where the proceedings for local assessments are similar to those in this state. In Collins v. Ellensburg, 68 Wash. 212, 122 Pac. 1010, the court, speaking of an estimate required by law, said:

"Since the legislature might have dispensed with any estimate, the failure of the council to make any would doubtless be held an irregularity which might be waived by a failure to protest.5 ’

The effect of this language is, that insufficiency in those steps which the legislature might have dispensed with in the first instance will only be considered an irregularity which is waived by not filing objections to the confirmation of the assessment. The case of Allen v. Bellingham, 77 Wash. 469, 473, 137 Pac. 1010, deals with a case of reassessment, of the intended making of which notice was given, just as notice is provided to be given of the proposed confirmation of an original assessment. The principle involved accordingly is the same. The court in that case said:

"There is no constitutional requirement which makes it necessary that notice of a proposed improvement be given by resolution or otherwise. The legislature would have had the power to have dispensed with such a notice. Where an opportunity has been given to present objections to a reassessment roll, a failure on the part of the taxing officers to initiate the improvement by a proper resolution does not avoid the assessment if the requirement of the law which was not observed was one which the legislature might have dispensed with. (Ricker Bros. v. Everett, 66 Wash. 366, 119 Pac. 807, 38 L. R. A. (N. S.) 582; Collins v. Ellensburg, 68 Wash. 212, 122 Pac. 1010.) As already stated, in the present case there is no claim that an opportunity was not given to present objections to the reassessment roll which is attacked by this proceeding. ’ ’

(See also Van Der Creek v. Spokane, 78 Wash. 94, 138 Pac. 560, and In Re Grandview Local Improvement Assessments, (Wash.) 203 Pac. 988.) The case of Schintgen v. La Crosse, 117 Wis. 158, 94 N. W. 84, also involves a reassessment, where the property owner was deprived of the right of the benefit of the hearing on the initial resolution. Speaking of notice to the property owner and when it should be given him, the court said in part:

“But this notice need not necessarily be before the improvement is made. The property owner has no constitutional right to be heard as to the character of the improvement nor the manner of its construction. It is enough if the law provides for notice and hearing at some time during the proceedings on the question as to what- proportion of the tax should be assessed against his land. (Hennessy v. Douglas Co., 99 Wis. 129, 74 N. W. 983; Meggett v. Eau Claire, 81 Wis. 326, 51 N. W. 566.) It would seem necessarily to follow that, if a reassessment law gives the property owner full notice and opportunity to be heard as to the amount of his assessment, it cannot be held unconstitutional because the property owner had no opportunity to be heard as to the nature of the improvement or the manner of making it, proyided there was a law in existence at the time of the improvement authorizing such work to he done and paid for by special assessments upon property owners. In the present case it appears that under the provisions of the charter of the city the common council had power to cause the street to be improved and the expense thereof to be paid by assessment upon adjoining property. (Laws of 1887, Ch. 162, sub Ch. 7, Secs. 1-5.) It is true that these provisions provide for notice to the adjoining property owners before the work is done, and hearing as to the manner of doing the work; hut, as we have seen, this requirement was not an essential, and might originally have been dispensed with by the legislature, provided notice was at some time during the proceedings given to the property owner and he was given a chance to be heard as to the amount of his assessment. This opportunity is given him by the reassessment law under consideration. ’ ’

In Indiana also the proceedings in connection with local assessments are similar to those in our state. The Supreme Court has a number of times passed upon the nature and necessity of the resolution of intention and has uniformly held it to he not jurisdictional, and to be. advisory only in its nature. (Milliken v. Crail, 177 Ind. 426, 98 N. E. 291; Pittsburgh etc. R. Co. v. Fish, 158 Ind. 525, 63 N. E. 454; Hughes v. Parker, 148 Ind. 692, 48 N. E. 243; Barber Asphalt Co. v. Edgerton, 125 Ind. 455, 25 N. E. 436; Quill v. Indianapolis, 124 Ind. 292, 23 N. E. 788, 7 L. R. A. 681.) To the same effect are R. Co. v. Hays, 17 Ind. App. 261; Willard v. Albertson, 23 Ind. App. 165. In Pittsburgh etc. R. Co. v. Fish, supra, the court said :

“With respect to municipal improvements, it is settled in this, and most other states, that the subject-matter being clearly within the jurisdiction of municipal legislative bodies, jurisdiction over the persons of those affected by an improvement will be sufficiently obtained if, at any step in the proceedings, and before the assessments are made, an opportunity is afforded to all persons feeling aggrieved to make whatever defense they may have against the assessment of their property. It has therefore been held that notice of the resolution of necessity, the purpose of which is merely to invite the views and counsel of the property owners, is not essential to jurisdiction, or to the validity of an assessment.”

In Hughes v. Parker, supra, the court said:

“It is first contended that the common council of the .city of Greenfield never acquired jurisdiction of the subject-matter of the improvement or of the persons of the property owners as assessed therefor, for the reason that no resolution of necessity was ever passed, or notice thereof given, as required by Section 2 of the Barrett law (Acts 1889, p. 237), Section 4289, Burns’ R. S. 1894. It must be admitted that the proceedings of the council in this matter were irregular. The resolution of necessity should have been adopted, and notice thereof given as provided in the statute. But it has been repeatedly held that such resolution and notice are not essential to give jurisdiction to the council, provided only that notice and a hearing are given to the property owners before the making of the final assessments. This notice and hearing were had in the case at bar.”

The law on local assessments in Alabama resembles closely that in this state. The provision making the confirmation of the assessment by the council conclusive, as contained in Section 1988 of our statute is, however, not found in the Alabama law. The court in that state holds that no collateral attack can be made on the order of confirmation because the objections not made to the confirmation of the assessment are waived. The provision that the owners of two-thirds of the property may stop the proceedings is not found, but there is a provision, as there is in the Indiana law, that if the owners of more than one1 half of the property object,-then the improvement cannot be made unless ordered by two-thirds of the council. The principle involved, therefore, is the same; the difference is only in the degree of the effect of the objections. The principal cases in Alabama dealing with questions similar to the case at bar are Ex Parte Gudenrath, 194 Ala. 568, 69 So. 629; Garner v. City of Anniston, 178 Ala. 430, 59 So. 654; City of Birmingham v. Wills, 178 Ala. 198, 59 So. 173. The latter ease is one like that at bar, and is so nearly in point as to be persuasive authority here. The court in an able discussion of the subject says in part:

“As has been noted already, complainant does not aver lack of due notice to appear and defend against the final assessment. Nor does he deny that he allowed the assessment to go against him by default. True, he complains that the notice, required by the statute (Sections 1362, 1363) as preliminary to action on the part of the city council confirming the original ordinance or resolution by which it was finally determined to proceed with the work, was not given as required by law. Without impairing the argument for our position, we may assume that it was not given at all, for that default might have been brought to the attention of the governing board of the city of Birmingham at the hearing fixed for the final determination of the assessment. As for the right to confirm, amend, modify, or rescind the original ordinance or resolution, the first hearing provided for by the statute is not jurisdictional, but advisory only. The statute does not contemplate at this point that any objections or protests going to the validity of the ultimate assessment shall be determined. * * * *

The preliminary notice, and all those other steps preliminary to the notice of the assessment and the assessment itself, about the absence or perversion of which the bill complains, are provisions of legislative grace. Being written in the statute, they must be observed or the property owner may at the final hearing have the benefit of the omission of such of them as may be considered essential where there has been no waiver. But their omission may he waived.”

Then the court discusses the assessment proceedings and the fact of waiver unless objections are filed and declares that none of the omissions in the preliminary proceedings can be considered as jurisdictional in a collateral attack in the following language:

‘ ‘ The effect of the statute is to make material defects or omissions in them just cause for an abatement of the proceeding, but its intention is to destroy all distinctions between defects or omissions and mere errors or irregularities in the preparatory steps in those cases in which the owners, after due notice and an opportunity to present every defense, remains silent and inactive. However harsh such proceedings may seem, and however oppressive the result may be in particular eases, the consequences are not more extraordinary or unconscionable than such as may be observed in cases where parties allow the judgments of customary courts of justice to go for their adversaries by default in the usual course of judicial procedure.”

See also City of St. Paul, 94 Minn. 115, 102 N. W. 221, and the Minnesota cases there cited. ¥e cannot escape the force of these decisions. The Indiana law is, as a whole, at least as strict in its requirements as to preliminary proceedings as ours. In Alabama, the conclusion in the ease from which we have quoted was reached under a provision of the statute that objections not filed to the confirmation of the assessment are waived. "We have not only a similar law in Section 1985 of our statute, but in addition thereto the broad and sweeping provision of Section 1988 makes the confirmation of the assessment final and conclusive against all parties, not filing objections as required, in all proceedings of every nature except under two conditions not here involved. The language of the latter section seems to be broad enough to indicate that the legislature intended to make all steps, not constitutionally necessary, irregularities only in a collateral attack and which are waived unless objections thereto are filed as provided in Section 1985. Even then the facts in this ease do not require that we go to the full length of the holding of the cases mentioned, but it is fairly impossible to avoid deciding and we are compelled to hold, that the defect in the resolution of intention in not sufficiently stating the character and extent of the proposed improvement cannot be taken advantage of in this collateral proceeding, but that it was waived when no objections were filed to the confirmation of assessment herein made, of the hearing on which the property owners affected, including the plaintiff, had due notice. There was at least an attempt to comply with the law and the council acted under color of authority, and we cannot, under the circumstances, consider the defect fatal. (See Barber Asphalt Pav. Co. v. Edgerton, supra; Pittsburgh etc. R. Co. v. Hays, 17 Ind. App. 261; 44 N. E. 375; Dailey v. Higman, 43 Ind. App. 357, 87 N. E. 669; Menzie v. City of Greensburg, 42 Ind. App. 657, 85 N. E. 484.) Provisions making the confirmation by the council conclusive are said to be in the nature of statutes of limitation. (City of Denver v. Campbell, supra.) As to such provisions, sustaining our holding herein, (see Byram v. Foley, 17 Ind. App. 629, 47 N. E. 351; Riverside Park Assn. v. City of Hutchinson, 102 Kans. 488, 171 Pac. 2, and cases there cited; Loomis v. City of Little Falls, 176 N. Y. 31; 68 N. E. 105 and cases cited; Hildreth v. Longmont, 47 Colo. 79, 103; 105 Pac. 107.) In view of our holding on the foregoing point, we deem it unnecessary to decide the effect thereon of Section 2027 of our statute.

2. The plaintiff contends that the law does not authorize the formation of an improvement district composed of two or more parallel streets, as was done in'this case. We think, however, that this contention is not good under our statute. Section 1971 provides that the resolution of intention shall specify the “streets, street or part of street proposed to be improved.” Section 2031 provides that:

“When streets of different widths have been or are hereafter included in any paving district, an adjustment shall be made in the assessment for the improvement thereof” etc.

Section 1968 provides that the term “street” shall be held to include “streets.” (See also Sections 1976 and 1978.) These sections clearly contemplate that a number of streets may be embraced in one district. The question of the extent of the improvement and what shall be included in it, rests in the legislative discretion of the city council, and the courts will interfere only to correct a clear abuse of the discretion, of which there is no evidence in this case. (Frazier v. City of Rockport (Mo. App.) 202 S. W. 266; Church v. People, 179 Ill. 205, 53 N. E. 554; Davis v. City of Ritchfield, 145 Ill. 313; 33 N. E. 888, 21 L. R. A. 563; 2 Elliott, supra, Sec. 694, 616.) In Frazier v. City of Rockport, supra, the court said:

“As a practical matter to require each street to be treated as one improvement and the property fronting on that street to participate only in the cost of improving it would lead to great difficulties, often forbidding an improvement entirely or rendering it inadvisable unless adjacent streets were similarly improved and the whole done as one improvement. Especially is this true in country towns in circumstances where the embracing of several streets in one scheme of improvement benefits every piece of property abutting upon any of the streets so improved, and it is only in this way that the improvement can be had. We are of the opinion that, in the ab* sence of any facts showing that the proposed scheme should not be regarded as one improvement or that the council has abused its discretion in the matter, the courts should not interfere, in the absence of a statute forbidding the inclusion of several streets in one proceeding.”

3. The plaintiff claims that the assessment is void on account of the fact that some of the property included in the improvement district by ordinance was not assessed. It is true Section 1983 provides that the assessment shall be levied “upon the property included in the district as described in the ordinance ordering said improvement,” and Section 1984 provides that “the assessment district shall include all the .property between the termini of said improvement,” and that “all property included within said limits * * * shall be considered and held to be the property * * * benefited by such local improvement.” But it further provides that said property shall be assessed “in accordance to the special benefits conferred on such property. ” The facts herein appear to be, as we understand the record, that certain lots on the outskirts of the improvement district were not assessed, though included therein by the ordinance, because subsequent to the establishment of said district they were embraced in, and assessed in connection with, a paving district that was thereafter established. It does not clearly appear, but we presume, that no work such as contemplated in the improvement district here in question was done to benefit said excluded lots, but that the necessary grading, curbing, etc., was charged up against said lots in connection with the assessment in the paving districts.' If such is the case, it would seem clear that plaintiff was not in any way prejudiced, and that his assessment was no larger by reason of the exclusion of the lots in question, and that whatever was done, was done in good faith and without fraud. In any event the gist of the objection goes to the amount for which the plaintiff was assessed; he could not be prejudiced unless, by reason of property omitted from the assessment roll, his own assessment were increased. But the law has created a special tribunal for the purpose of determining and equalizing the assessments against the various properties, and we are clear that both upon reason as well as. authority, the plaintiff cannot raise the point in question in á collateral pro-' ceeding, but must, in the absence of fraud, resort to the special tribunal thus created by' law, which he has failed to do in this case. (Houck v. Roseburg, 56 Or. 238, 108 Pac. 186; Gorman v. State, 157 Ind. 205, 60 N. E. 1083; Hildreth v. Longmont, 47 Colo. 79, 97, 105 Pac. 107; Spokane v. Preston, 46 Wash. 98, 89 Pac. 406; Auxmiller v. North Yakima, 73 Wash. 96, 131 Pac. 470; Larsen v. San Francisco, 182 Cal. 1, 186 Pac. 757; Cohen v. Alameda, 183 Cal. 519, 191 Pac. 1110; Baley v. Hermosa, (Cal.) 192 Pac. 712; Andre v. Burlington, 141 Iowa 70, 117 N. W. 1082; Mushbaugh v. Peoria, 260 Ill. 27, 102 N. E. 1027; Cosgrove v. Chicago, 235 Ill. 358, 368; Page and Jones, Taxation & Assessments, Sec. 645; McQuillan, Mun. Corp., Sec. 2092.) In Spokane v. Preston, supra, the court said:

“Another point urged by appellants is that property’ which should have been included in the assessment district was omitted. This also goes to the amount of the assessment only. Appellant’s property was properly within the district and was subject to assessment. The assessment was made on the principle of benefits accrued, and if appellant’s property was assessed too much and not ratably with other prop erty, similarly benefited, it was their duty to so inform the council and there object to the amount of the assessment.”

In Larsen v. San Francisco, supra, the court said:

“If the owner of each of these parcels could separately maintain an action and therein reopen the entire question of benefits received and the proportion to be charged against the respective parcels, it is plain that any proceeding of such magnitude, or even of far less extent, could, and probably would, be effectually blocked by unending litigation. Such construction is not to be indulged if it produces such absurd consequences. ’ ’

This principie also controls the objection that a wrong method of apportionment was applied in this case. (See In Re Grandview Imp. Assessment, (Wash.) 203 Pac. 988.) The principle also controls the claim herein made that the' grade of the street in front of the property of some of the parties interested therein was raised to such an extent that the work done was really a damage rather than a benefit. (Moore v. Yonkers, 235 Fed. 485, 149 C. C. A. 31, 9 A. L. R. 590; Evans v. Des Moines, 184 Ia. 945, 169 N. W. 336.) It may be, without deciding the point, that under our constitution the parties who were damaged by the change of the level of thé street have a cause of action against the city therefor, but if so, that is an independent action, and the question cannot be raised in order to defeat the assessment made herein after the contractor has expended his time and money in making, the improvement herein. (See Butters v. Oakland (Cal. App.), 200 Pac. 354 and cases cited; Duncan v. Ramish, 142 Cal. 686, 76 Pac. 661; Elton v. Tacoma, 57 Wash. 50, 106 Pac. 478, 107 Pac. 1061.)

4. Counsel for plaintiff also contend that the assessment is void for the reason that the council of the city did not establish a grade on the streets in question. We have already mentioned this matter in connection with the question of stating the character and extent of the improvement in the resolution of intention. We must confess that we do not understand why a city council would, in the exercise of prudence and fairness to the citizens, undertake to grade a street without a definite, fixed grade established on its records, and it is, perhaps, true that proceedings for the improvement of a street prior to the establishment of such grade should, upon reasonable objection and in an appropriate proceeding, be held invalid. (State v. District Court, 44 Minn. 244, 46 N. W. 349; State v. Judges of the District Court, 51 Minn. 539, 53 N. W. 800, 55 N. W. 122; Wingate v. Astoria, 39 Or. 603, 65 Pac. 982.) But there is no provision in our statute making the establishment of a grade a condition precedent to the right or power of the council to improve the street, or prohibiting such improvement before the grade is established, and we are clearly of the opinion that the question cannot be raised by collateral attack in an action such as this, at least after the completion of the improvement. (Daly v. Gubbins, 170 Ind. 105, 110, 82 N. E. 659; Birmingham v. Wills, supra; Shepard v. People, 200 Ill. 508, 65 N. E. 1068; Walker v. People, 202 Ill. 34, 66 N. E. 827; Fitzhugh v. Duluth, 58 Minn, 427, 59 N. W. 1041; Wingate v. Astoria, 39 Or. 603, 65 Pac. 982.)

5. Plaintiff also contends that the assessment is void because the “city engineer” as provided by Section 1983, did not prepare the assessment roll. The assessment herein was made by an assistant to the consulting engineer. Sec. 1968 provides that “the term engineer” shall be deemed to mean the city engineer, town engineer, or any engineer employed by the city or town for local improvement work. It would seem that under this provision, construing it liberally as Section 2034 provides, it was probably intended that any engineer employed by the city for that purpose could make the assessment. But whether that is so or not, Section 2019 provides that it shall not be an objection to the validity of an assessment “that the same was made by an unauthorized officer or person, if the same shall have been confirmed by the city or town authorities. ’ ’ Such confirmation was made in this ease, and the objection accordingly cannot be sustained.

6. Counsel for plaintiff further seem to think that the cost of the grading work should be borne by the city as a whole, and should not be assessed against property benefited. They rely on Section 1982 of our statute, which provides:

“ESTABLISHING GRADES. In case the notice provided for in Section 1971 be to establish' a grade or alter the same, the council may, at any date within six months after the expiration of giving the notice as provided in Section 1973, establish the same by ordinance or resolution. The cost of establishing or altering the grade of any streets, highway, avenue, road or alleyway shall be paid out of the general funds of the city or town. ’ ’

This section, we think, refers only to the establishment of grades, that is to say, determining the grade lines and making a record thereof. We do not think that it could be construed to refer to the work of grading, bringing the street to the grade lines. In Kepple v. Keokuk, 61 Iowa 653, 17 N. W. 140, it was said:

“Establishing a grade does not mean the actual lowering or raising the surface of the street. It means the fixing of a base line or plane of reference, and certain measurements from that plane.”

(See also Reilly v. Fort Dodge, 118 Iowa 633, 637, 92 N. W. 887; Cummins v. Dixon, 139 Mich. 269, 272, 102 N. W. 751.) We do not think that the position of counsel for plaintiff on this point is well taken.

For the reasons stated the judgment must be reversed, and finding nothing in the record that would authorize a judgment for the plaintiff, the cause will be remanded with directions to enter judgment for the defendants.

Reversed and remanded.

Potter, C. J., and Kimball, J., concur.