MOTION NOR REHEARING.
BOND, J.It is insisted by the learned counsel for respondent that the decision in this case is in conflict with *41tliat of the Supreme Court in State ex rel. Moody v. Wardell, 54 Southwestern Reporter, 574. In that case the city of Macon being one of the third class, in the spring of 1892 undertook to extend its limits in pursuance of the authority of section 1466, revision of 1889. The court held that this provision of the statute was a nullity by reason of the inseparable connection of a certain clause of the act, exempting certain of the added territory from taxation, with the general purpose of the act expressed in its other provisions. Under this ruling it necessarily followed that the city of Macon, having no legislative authority thferefor, could not extend its limits as a city of the third class, as it possessed ordy the powers devolved on cities of that class by the legislative acts authorizing their incorporation. In the case at bar, the city of Aurora was one of the fourth class. By the Acts of 1891 (Session Acts, pp. 61-62), full authority to extend their limits is given to cities of this class by an enactment-valid and constitutional in all respects, since it does not contain any vitiating clause similar to the one which rendered section 1466 of the revision of 1889 (applicable to cities of the third class), an entire nullity. It is clear, therefore, that the case cited is not in conflict with the point decided in the original opinion in the one at. bar, but it does prove that the law under which the city of Aurora acted is unquestionably a constitutional and valid one, since it is entirely free from the defect of the one considered by the court in the case cited. The extension of the limits of the city of Macon was an act patently and palpably void on its face for lack of any enabling statute; and hence could' be attacked, on that ground, in a collateral proceeding. The extension of the limits of the city of Aurora was in pursuance of an act of the legislature, constitutional and valid on its face, by proceedings had and done apparently in strict conformity with the act enabling it to extend the corporate *42franchise of the city over the new territory. We do not think this is open to collateral attack, by way of defense to the present action, by extrinsic evidence relating to the location and uses of the added territory before it became incorporated as a part of the city of Aurora. This is what we held in the main opinion in the present case, and there is certainly nothing in the case cited in the motion for rehearing or in the argument in the brief in support of that motion, which affords any ground for a recession from the view then expressed. The motion for rehearing is therefore overruled.
Judge Bland concurs; Judge Biggs absent.