The following opinion on rehearing was filed February 8, 1906. Judgment of affirmance adhered to:
Sedgwick, C. J.In the brief and oral argument upon the rehearing of this‘case, it was contended that the principle stated in the fifth paragraph of the syllabus is not applicable to the facts as disclosed by the record. It appears that the city council ascertained, that it was necessary to rebuild a part of the main sewer extending along Capitol avenue through sewer district No. 6, as it then was, because the sewer was not of sufficient capacity. It was determined to rebuild and enlarge that part of the sewer from 16th street to 12th street. The council thereupon enacted an ordinance providing for the construction of a 24-inch seAver from 16th street to 12th street, and in the same ordinance created a neAV sewer district out of that part of the old seAver district No. 6, which lay betAveen 16th and 12th streets. The objection of the plaintiffs is that, by creating this new sewer district, in which only that part of the sewer lay which Avas to be rebuilt, the council, in effect, determined in advance that no part of the sewer district No. 6 would be benefited by the improvement, except that part embraced in the new sewer *515district. By this action of the council the plaintiffs were deprived of a hearing as to whether property in sewer district No. 6, and not included in district No. 211, was especially benefited by the improvement, and as to what proportion of the cost of the improvement should be assessed against that property. When expense is to be incurred in rebuilding or enlarging a part of a sewer in a given sewer district, such expense should be borne by the property in that district especially benefited thereby to the extent and in the proportion of such special benefits. It may well be doubted whether the council could determine in advance, and without a hearing, that a certain part of the property in the sewer district Avould be benefited and the remainder of the property Avould not be benefited, and create a neAV sewer district composed of the property to be benefited by the improArement, and so relieve the remaining property, of the sewer district as it formerly was from any part of the expense of the improvement. The question is AA'liether these parties are in a position to complain, and have just grounds to complain, of this action of the city council. These plaintiffs have brought an action in equity to cancel the special assessments against their property. This suit w'as begun about three years after the action of the city council in creating this seAver district. In the meantime the improvement AAras completed, and these plaintiffs have received the benefits arising from the improvement. The action of the council in creating the neAV seAver district, if it rendered their proceedings in assessing the special benefits against this property irregular and erroneous, would not deprive the council of jurisdiction to make such assessment. It seems very clear that the plaintiffs, in order to maintain an action of this nature, after so great a lapse of time, must, in any view of the case, make it affirmatively appear that they have been substantially injured by this erroneous proceeding on the part of the council. It appears from the petition that only a part of the cost of the improvement was assessed against the *516abutting property. The total cost of the improvement was $4,252.65, and $1,700 of this was paid out of tbe general fund of tbe city. There is,no allegation in tbe petition that tbe amount assessed against tbe property of tbe plaintiffs Avas greater than tbe benefits conferred upon tbe plaintiffs’ property by tbe improvement; and it does not appear from tbe allegations of tbe petition that tbe property embraced in sewer district No. 6, as it was before tbe creation of tbe present sewer district number 211, and not included in that district, Avas benefited by tbe improvement, or could have been assessed in any amount so as to bave reduced the assessment against tbe property of tbe plaintiffs, or in any way bave benefited tbe plaintiffs. Tbe plaintiffs bave not shown that they bave been in any way injured by the action of tbe city council complained of.
Our former opinion in this case is adhered to.
Affirmed.