(dissenting). I am unable to concur in the conclusions reached by my associates on many of the questions discussed in the majority opinion in this case. And in view of the importance of these questions, I deem it desirable to indicate wherein I differ from my associates.
I agree with the majority .with respect to the validity of statutes providing for reassessments. These statutes have almost universally been sustained. Hamilton, Taxn. by Special Assessments, §§ 823 et seq.; Welty, Special Assessments & Taxn. § 305; Page & J. Taxn. by Local & Special Assessments, §§ 956 et seq., Sutherland, Stat. Constr. § 675.
Gray, in his able work on Limitations of the Taxing Power, in dealing with the subject of “jurisdictional” defects and requirements divides them into two classes, — those which are jurisdictional for the local taxing officers, and those which are jurisdictional in the legislature itself, — because the people, the superiors of the legislature, have, in written constitutions or inherent restraints upon the legislative *94power, declared that they are essential. Gray, Limitations of Taxing Power & Public Indebtedness, p. 616.
Page and Jones (Page & J. Taxn. by Local & Special Assessments, § 961), say: “It has been said that the test of the power of the legislature to authorize a reassessment is whether the infomalitiesin the proceedings are such as the legislature could have dispensed with in advance.”
In discussing the power of á legislature to enact retrospective curative statutes, Judge Cooley, in view of the authorities, asserted the following rule: “If the thing wanting, or which failed to be done, and which constitutes the defect in the proceedings, is something the necessity for which the legislature might have dispensed with by prior statute, then it is not beyond the power of the legislature to dispense with it by subsequent statute. And if the irregularity consists in doing some act, or in the mode or manner of doing some act, which the legislature might have made immaterial by prior law, it is equally competent to make the same immaterial by a subsequent law.” Cooley, Const. Lim. 371.
By applying these principles, the Supreme Court of the United States has sustained legislative enactments providing for reassessments even where the original statute was unconstitutional in failing to provide for notice to the property owner. Spencer v. Merchant, 125 U. S. 345, 31 L. ed. 763, 8 Sup. Ct. Rep. 921. The same great court has also held that a reassessment may be levied for an improvement for which there was no statutory authority to levy an assessment when the improvement was made, and which the public corporation making the improvement had determined to pay for by general taxation. Seattle v. Kelleher, 195 U. S. 351, 49 L. ed. 232, 25 Sup. Ct. Rep. 44. And that a legislative body may confirm the proceedings of am officer “of a subordinate municipality, or other authority therein, which, without such confirmation, would be void, provided it had the power in the first instance to authorize such officer, or board of municipal subdivision to make the improvements and levy the assessments in the manner in which they were made.” 4 Enc. U. S. Sup. Ct. Rep. 457; Mattingly v. District of Columbia, 97 U. S. 687, 690, 24 L. ed. 1098, 1099. See also Philip Wagner v. Leser, 239 U. S. 207, 60 L. ed. *95230, 36 Sup. Ct. Rep. 66; Houck v. Little River Drainage Dist. 239 U. S. 254, 60 L. ed. 266, 36 Sup. Ct. Rep. 58.
In answering the contention that complainant was deprived of Iris-property without due process of law, because the special assessment was levied after the improvement had been completed, and that the statute there under consideration was retroactive in its operation and disturbed rights which had accrued and become fixed in the property holders long before the statute was enacted, the supreme court of Maryland, and the United States Supreme Court in a recent case (Leser v. Philip Wagner, 120 Md. 671, 87 Atl. 1040, 239 U. S. 207, 60 L. ed. 230, 36 Sup. Ct. Rep. 66), quoted with approval the following language from Seattle v. Kelleher, supra: “At the end the benefit was there, on the ground, at the city’s expense. The principles of taxation are not those of contract. A special assessment may be levied upon an executed consideration; that is to say, for a public worh already done [citing authorities]. . . . Of course it does not matter tho.t this is called a reassessment. A reassessment may be a neiu assessment. Whatever the legislature could authorize if it loere ordering an assessment for the first time it equally could authorize, notwithstanding a previous invalid attempt to assess. The previous attempt left the city free To take such steps as were within its power to take, either under existing statutes, or under any authority that might thereafter be conferred upon it, to make a new assessment upon the plaintiff’s abutting property’ in any constitutional way.”
I therefore fully agree with the conclusion of my associates that the provisions of the laws of this state relating to reassessments are valid enactments. In fact, no- one has assailed their constitutionality on this appeal. The questions in dispute on this appeal relate to the validity of the original assessment, and what method of reassessment should be adopted in event the original assessment is held to be invalid.
The majority opinion holds that the defects in the preliminary proceedings vitiated the assessment based thereon, and requires not only a reassessment, but a pro forma compliance by the city officials with the provisions of the statutes, — i.e., the city council is required to create a waterworks district, pass a resolution of necessity, and in general go through the forms prescribed by the statute. I cannot concur in this part of the opinion.
*96The proceedings outlined by the statute with respect to public improvements to be paid for by special assessments are as follows:
1. Creation of the improvement district. Comp. Laws, § 3698. 2. Preparations of plans and specifications of the proposed improvement by the city engineer, at the direction of the city council. Comp. Laws, § 3703. 3. Passage and publication of resolution declaring work necessary. Comp. Laws, § 3704. 4. Advertisement for bids for construction of improvement, and letting of contract for such improvement. Comp. Laws, §§ 3705-3709. 5. After completion of the improvement, assessment of benefits, publication of notices and hearings with respect thereto. Comp. Laws, §§ 3724 — 3728.
The city council of Lisbon had created a water-main district, but failed to adopt a formal ordinance or resolution creating a waterworks •district. It did, however, adopt the following resolution, which was duly published in the manner and for the length of time required for the publication of a resolution declaring a proposed improvement to be necessary, viz.:
“Whereas, it appears to the city council that it is absolutely necessary that something be done to provide adequate water supply to afford proper fire protection for the city of Lisbon, and whereas, in the judgment of the city council, the only proper way to procure such water supply and fire protection is by the erection of a standpipe, therefore, be it resolved that the city engineer be, and is hereby, empowered to prepare plans and specifications.”
It was stipulated as a fact upon the trial that “the defendant city of Lisbon through its officers, the city council, and under and by their direction, erected or caused to be erected a standpipe; . . . that ■said standpipe within said city is centrally located; that said standpipe was erected for, and will supply water to, the whole of the inhabitants •of said city wherever there are water mains located and laid to convey such water, and adequate fire protection within 800 feet of said water mains.”
It was further stipulated as a fact upon said trial “that during all the time consumed by the construction of the standpipe by the city council, plaintiff knew the standpipe was being built and erected, and could see the operation of the mechanics from his dwelling house, and offered no objection'to the construction of the same.”
*97Plaintiff in his testimony admits that in the summer of 1913 there was considerable complaint over a shortage of city water, and a general discussion by the citizens as to the advisability of providing for an adequate supply of water so as to insure fire protection. Plaintiff’s •own testimony shows the necessity of the improvement. The only complaint he makes is not that the improvement was made, but the manner in which it is to be paid for. It was his desire that it be paid for by general taxation, and not by special assessment. Of course the courts are not permitted to sit in review upon the fiscal or governmental policies of legislative bodies.
“The legislature, in the exercise of its power of taxation, has the right to direct the whole or a part of the expense of a public improvement, . . . to be assessed upon the owners of lands benefited thereby; and the determination of the territorial district which should be taxed for a local improvement is within the province of legislative discretion [cases cited]. If the legislature provides for notice to and hearing •of each proprietor, at some stage of the proceedings, upon the question what proportion of the tax shall be assessed upon his land, there is no taking of his property without due process of law.” Spencer v. Merchant, 125 U. S. 345, 31 L. ed. 763, 8 Sup. Ct. Rep. 921.
The legislature has declared that the public improvement under consideration is one for which a special assessment may be levied upon the property benefited. The legislature has also provided for notice to, and hearing of, each person assessed before the special assessment commission and before the city council on appeal from such special assessment commission. And it is undisputed that such notice was given in the case at bar.
The legislature not only adopted § 3713 (quoted in the majority opinion), providing for reassessments by the city council in cases where an assessment, or any part thereof, as to any lot or parcel of land is set aside, but in the same statute and immediately preceding said section it expressly declared that — “no error or omission which may he made in the proceedings of the city council, or of any officer of said city in referring, reporting upon, ordering or otherwise acting concerning <my local improvement provided for in this article, or in malcing or certifying any assessment, shall vitiate or in any way affect any such assessment, hut if it shall appear that hy reason of such error or omis*98sion substantial injury has been done to the party or parties claiming to be aggrieved, the court shall alter such assessment as may be just, and the same shall then be enforcedComp. Laws, § 3714.
And the legislature directed that "whenever any action or proceeding shall be commenced and maintained before any court to prevent or restrain the collection of any special assessment or part thereof, made or levied by the officers of amy city for any purpose authorized by law, . . . and maintained as aforesaid to vacate or set aside any sale of real estate for such special assessment, or to cancel any tax certificate or deed given under such sale, and such assessment shall be held to be void by reason of noncompliance with this article, the court shall determine the true and just amount whictv the property attempted to be so assessed by said special assessment should pay, to make the same uniform with other special assessments for the same purpose, and the amount of such assessments as the same appears on the assessment list thereof shall be prima facie evidence of such true and just amount, and judgment must be rendered and given therefor against the pa/rty liable for such special assessment, without regard to the proceedings had for the levy thereof, and such judgment shall be a lien upon the property upon which a special assessment shall have been levied, of equal force and effect as the lien of special assessments, and the lien of such special judgment shall be enforced by the court in such action; provided, that no action for either of said purposes shall be maintained unless it is commenced within six months after such special assessment is approved, and in case of such assessment heretofore approved, within six months, after this article takes effect.” Comp. Laws, § 3715.
It will be noted that the language of §§ 3714 and 3715 is very broad.
In my opinion these sections are a clear and unequivocal declaration on the part of the legislature that, when a local improvement has been constructed for which a special assessment may be levied, a person assessed cannot after the local improvement has been constructed, in an action to enjoin the collection of assessment, assail the assessment for any error or omission in the proceedings which it was within legislative power to dispense with, unless he shows “that by reason of such error or omission substantial injury has been done to the party or parties claiming to be aggrieved,” in which case “the court shall alter such *99assessment as may be just, and the same shall then be enforced.” § 3714, supra. And in such case “such assessment shall be held to be void by reason of noncompliance with this article [the provisions of law relative to special assessments], the court shall determine the true and just amount which the property attempted to be so assessed . . . should pay . . . and judgment must be rendered and given therefor against the party liable for such special assessment, without régard to the proceedings had for the levy thereof.” § 3715, supra. Where is there any room for doubt as to what the legislature meant by these statutory provisions? It is inconceivable how intent could have been more clearly and positively expressed.
As was said by the court of New Jersey, in considering a similar statute: “The language here employed appears to leave no doubt as to the purpose of the legislature. It was to assign to the court the province of seeing that its suitors who were liable, or whose property was subject to these assessments for public improvements and who were seeking to vacate any of such assessments, should in every event be made to bear their fair and legal share of the burden. This provision was well timed and most salutary; for while it preserves to the owner of property the ability to relieve himself from so much of his tax as is unjust, it, at the same time and by a summary procedure, compels him to do justice to the public by paying such part of his assessment as is justly due. This law is, in the highest sense, remedial, and should be construed with liberality, so as to abate the mischief of taxpayers avoiding, by litigation, their honest dues to the government.” Elizabeth v. State, 45 N. J. L. 157, 159.
It has been suggested that the legislature could not confer upon the courts the power to assess taxes. While statutes authorizing courts to assess taxes have generally been held invalid, those authorizing the exercise by the court of a certain supervision over, and rendition by it of final judgment in, special assessment or tax proceedings, are generally recognized as valid. 8 Cyc. 836; 37 Cyc. 1111.
In Wells County v. McHenry, 7 N. D. 246, 254, 74 N. W. 241, this court, speaking through Chief Justice Corliss, said: “We are not aware of any principle of law which prevents the legislature from vesting in the ordinary courts of justice the duty of revising the action *100of assessors whenever their valuation of property is challenged by the citizen, or even the power to act as equalizing boards before which all assessments shall be brought for revision prior to their becoming final.”
The Federal courts have frequently, under their general equitable powers, reviewed actions of boards of equalization. And the Federal Supreme Court recently sustained decrees of a United States district court enjoining the board of valuation and assessment of Kentucky from enforcing that portion of a certain tax which the court determined to be in excess of that which the taxpayer was justly obliged to pay upon a fair valuation of his property. Louisville & N. R. Co. v. Bosworth, 209 Fed. 380, 230 Fed. 191; Greene v. Louisville & Interurban R. Co. 244 U. S. 499, 61 L. ed. 1280, 37 Sup. Ct. Rep. 673; Louisville & N. R. Co. v. Greene, 244 U. S. 522, 61 L. ed. 1291, 37 Sup. Ct. Rep. 683; Illinois C. R. Co. v. Greene, 244 U. S. 555, 61 L. ed. 1309, 37 Sup. Ct. Rep. 697.
The omissions or defects in the proceedings in the case at bar related to and affected acts the performance of which the legislature might dispense with if it so desired. The legislature could unquestionably have authorized the improvement to be constructed upon proceedings such as those which were actually had by and before the city authorities of Lisbon. I do not believe that under these circumstances the court in any event should order any proceedings whatever, except a reassessment. Can it be contended that the legislature intended to commit to future city councils the power and authority to determine whether a local improvement for an authorized purpose fully constructed and in actual use was necessary? It seems to me too clear for argument that the legislature intended that when a local improvement for an authorized purpose had been fully constructed, a property owner should be required to pay his proportionate share of the cost of the improvement, not exceeding, however, the amount in which his property had been benefited.
The majority opinion also holds that the special assessment commission arbitrarily assessed the different tracts without personal inspection. I do not believe that the record justifies this conclusion. The only evidence with respect to the proceeding had before the assessment commission is the testimony of Norton, one of the members of the commission.
*101Upon questions propounded to him by plaintiff’s counsel, Norton testified in part:
Q. Mr. Norton, you are a resident of the city of Lisbon?
A. Yes, sir.
Q. And you have resided here for how many years ?
A. Oh, about thirty years, anyway.
Q. Were you on the 28th day of May, and prior thereto, one of the special assessment commissioners of the city ?
A. Yes, sir.
Q. And one of the commissioners who filed the report of the special assessment of the city for the expense of a water tower ?
A. Standpipe, yes.
Q. What did you do, Mr. Norton, in ascertaining the location and valuation of the property that you assessed ?
A. For the location we took as a basis, we took a map of the water district, covering the water district.
Q. You did, as a matter of fact, spend some time in looking at the lots, didn’t you ? ,
A. Well, we spent some time, yes.
Q. About how much time ?
A. I am not certain; one or two hours.
Q. You took an automobile and went from one part of the city to another, and never got out of the automobile to look at any of the property ?
A. I couldn’t say as to that; some of us may have gotten out; we didn’t all at any one time.
Q. Did you get out and look at any of the property ?
A. I couldn’t tell you now.
Q. To arrive at the amount necessary to be raised, you first ascertained the amount of the cost of the standpipe, did you not ?
A. We had that furnished to us by the city auditor, certified to by the city auditor what the cost was.
Q. Then you took that amount, Mr. Norton, and divided it by the number of lots that you took to levy an assessment on, to ascertain how much each lot should bear?
A. Yes, the number of lots in that district.
Q. And this result was accomplished without any particular refer*102ence to the benefit to any or either of the lots would receive from the erection of such standpipe.
A. That is what we did take into comiderationj the benefit.
Q. How did you arrive at the benefit ?
A. By assessing the number of lots in that district equally. . . .
Q. I understand from your answer, that you did not assess all the lots in the city of Lisbon ?
A. No, sir.
Q. What lots did you exclude from that assessment, you needn’t give the particular lots, but generally ?
A. My recollection is that we used as a basis, as a benefit, lots that were within 1,200 feet of a hydrant.
Q. Why 1,200 feet instéad of from 800 to 1,000 feet ?
A. We understood the city would provide hose to cover 1,200 feet.
Q. So that you were fixing the lots that should be assessed, according to the number of feet of hose the city would furnish ?
A. Yes, that the hose would.
Q. The result was that several hundred lots, or their equivalent, were excluded from the assessment ?
A. Yes, they were outside of the limit, nearly so, probably not exactly, but that was the way we figured.
Q. In assessing this benefit, you didn’t take into consideration whether the lots were improved or unimproved %
A. No, sir.
According to the state census of 1915, Lisbon then had a population of 1,553. Men, like Norton, who had lived there for a long time, were probably familiar with every tract of land in the city. An inspection would convey to them no information which they did not already possess. When these facts are taken into consideration, it seems to me that no one can say either as a matter of law or fact that the members of the assessment commission did not - sufficiently inspect the different tracts of land before making the assessment.
While it is true the assessment commission assessed an equal amount against every lot benefited, it does not necessarily follow that their determination was clearly and unquestionably wrong.
The statute, it is true, requires special assessments to be levied in pro*103portion, to, and in no case in excess of, the benefits conferred. The statute, however, contains no direction as to how such benefits shall be measured, but this as well as other matters connected with-the determination of the amount of benefits is left to the judgment and discretion of the assessment commission. The special assessment commission is a quasi judicial body and its judgments are final unless fraud or some other ground justifying equitable interference is shown to exist. Ellison v. La Moure, 30 N. D. 43, 151 N. W. 988. And while this court has held that the judgment of the special assessment commission is not conclusive, and will be set aside by the court where it appears that the commission, as a matter of fact, has exercised no judgment or discretion at all, but merely assessed the cost of construction on an area basis (Robertson Lumber Co. v. Grand Forks, 27 N. D. 556, 147 N. W. 249), this court has recognized the generally prevailing rule that under a statute like ours an assessment according to area or frontage is not necessarily invalid provided that, after inspection, the com-, mission finds the increased value or benefit to the different lots to be in proportion to such area or frontage. Robertson Lumber Co. v. Grand Forks, 27 N. D. 556, 566, 147 N. W. 249. It should be remembered that the water mains in the city of Lisbon had been constructed long prior to the construction of the standpipe. The standpipe was constructed because the then existing water supply was deemed inadequate in case of'fire. 'The testimony of Norton shows that the assessment commission, in assessing benefits, took into consideration and assessed only those tracts which would actually receive fire protection, by reason of the standpipe, from the water mains already laid and hydrants formerly established.
There is no evidence whatever to show that any of the lots assessed received any particular, immediate, or permanent benefit not received by other lots.
The evidence shows that the plaintiff is the owner of two lots. It appears from the facts stipulated that plaintiff had a dwelling house in Lisbon, and it is a reasonable inference from the entire record that this dwelling was situated upon the two lots. The special assessment commission found that each of these two lots had been benefited in the sum .of $15, and levied an assessment of $7 against each lot. There is no evidence to show that this is incorrect, nor is there any evidence *104tending to show that the assessment against plaintiff’s property is excessive or unjust. Nor is there any showing that the plaintiff has been prejudiced by reason of the action of the assessment commission or by reason of any of the defects in the proceedings. So far as the record shows, it is just as likely that the amount assessed against plaintiff’s property is too low. Under these circumstances, how can plaintiff be heard to complain ? It is a general rule that the equitable remedy of injunction is available only where the legal remedies are inadequate. Pom. Eq. Jur. §§ 221, 1346. And a person who seeks to enjoin the collection of a tax is ordinarily required to show that he will suffer irreparable injury unless injunctive relief is granted. High, Inj. § 491. The plain and unmistakable legislative intent as expressed in § 3714, Comp. Laws 1913, is that a court should interfere only in case a plaintiff shows "that by reason of error or omission substantial injury has been done” to him. In this case there is absolutely no showing of injury to the plaintiff.
The majority opinion also holds that plaintiff may maintain the action not only for himself, but for all other property owners affected by the assessment.
The opinion in effect holds that this action and the judgment therein inures to the benefit of any property owner who chooses to come in and make claim thereunder.
I do not care to discuss the matter further than to say that the quotation from Pomeroy’s Equity Jurisprudence, principally relied upon by the majority, is from that portion of this work devoted to a discussion of the doctrine that equity jurisdiction exists in order to prevent a multiplicity of suits. It is well to remember that the doctrine is equitable, and should be invoked in aid of, and not to defeat, equity.
I fail to see any reason for its application in the case at bar. In this case plaintiff’s testimony shows that he brings the suit for' himself alone. No other property owner has in any manner interested himself in the matter; nor has any other property owner brought a similar action. The time within which such action may be brought has elapsed, and the rights of any other property owner to maintain an independent suit is barred by the Statute of Limitations. Comp. Laws 1913, § 3715. So far as the record before us shows, all the other property owners have paid those portions of their assessments which have already fallen due.
*105And now under the holding of the majority an assessment for $10,-225, made and confirmed by the proper authorities for the payment of a local improvement fully constructed and in actual use, must be set aside because a property owner against whose property an aggregate tax of $14, payable in annual instalments covering a period of years, has been levied, is dissatisfied. And the city authorities must not only make a reassessment, but go through the form and ceremony of passing-resolutions whose functions are peculiarly preliminary to the construction of an improvement. The cost and expense incident to the publication of the resolutions and notices will probably amount to at least .twenty times the amount assessed against plaintiff’s property.
In my opinion the judgment should be affirmed. And in any event the inquiry in this suit should be limited to whether the assessment against plaintiff’s property is unjust or excessive, and, if so, the court should determine the proper amount of such assessment, and thereby put an end to this litigation.