The respondents moved for a rehearing, and the following opinion was filed at the February term, 1869
Paute, J.The arguments presented on the motion for a reheai’ing have not changed the views of the majority of the court, as expressed in the opinion already filed. But as a rehearing is claimed upon one or two grounds not noticed in that opinion, we will briefly state the reasons for denying the motion upon those points.
The first is, that the claim of Collins for grading the street was legal and ought to have been allowed, even though the *609council bad no power to contract for tbe laying of tbe Nicholson pavement. But even if tbis were so, tbe only question it would present in tbis action is, whether tbe payment of that claim ought to have been required as a condition precedent to the relief sought. Eor, as tbe tax included tbe whole, tbe sale would have been illegal, although some part of it might have been valid. But we have come to the conclusion, that, so long as we adhere to the decision on the main question, there is not a sufficiently clear ground, to justify us in interfering in this action to compel a separate compensation for the' grading. The grading, although let by a separate contract, was merely accessory to the principal contract for paving the street. It was to prepare the street for the pavement, and doubtless would not have been ordered except in connection with the order for the pavement. The whole matter will doubtless be adjusted hereafter, either by obtaining sufficient authority from the legislature to enable the council to adopt the Nicholson pavement as laid, and to assess and collect a tax for it; or, if this should be refused, by the council’s conforming its action in paving the streets to the authority it already has. Whenever this is done, the tax for the grading will be assessed and collected with the other. And we deem it more advisable to let it take this course, than to attempt now to compel its payment by an exercise of the equitable jurisdiction of the court, when we cannot determine with certainty whether the grading, by itself, would not have been a detriment rather than an advantage to the lots.
But it is further claimed, that even if this pavement was authorized at the time it was contracted for, still the legislature may subsequently confer authority upon the council to adopt it, and to assess and collect a tax for it. And it is then insisted that the legislature has already done this.
The general proposition, that the legislature may confer such authority, has been already sustained by. the decision of this *610court in May v. Holdridge, ante, p. 93. But I cannot assent to tbe position that it bas done so in this instance.
The position is based upon the provisions of chapter 132 of the general laws of 1868. But that merely provides that where any taxes or assessments have been set aside or declared void by any court, in consequence of any irregularity or neglect to comply with the law in the proceedings, it may be afterward reassessed. It applies, therefore, obviously only to such taxes and assessments as were authorized by law. Where there is an irregularity or defect in assessing these, they may be reassessed. But it would be a strange use or abuse of such a statute, to say that it would extend to the assessment of a tax which was defective, not on account of mere irregularity in the proceedings, but for an entire want of authority. That is the ground of the objection to the tax here in question, and this statute has therefore no application to it.