I am unable to concur in the opinion of the majority of the court delivered herein. My dissent, however, is from the premises from which the opinion is deduced. The premises claimed are, that the city of East Portland has, under its charter, general power to improve its streets and defray the expense thereof out of the general fund of the city. If this were so, then there *41would be no ground of disagreement between my learned associates and myself. But it seems to me that no one can carefully read the charter and arrive at such a conclusion. The charter does empower the common council of the city, among other things, “to improve the sidewalks, pavements, streets and parts of streets within the limits of the city, making full or partial improvement thereof.” (§1, Art. 6, charter.) If this section stood alone it might warrant the assumption claimed, but the subsequent provisions of the charter point out the mode in which the power is to be exercised, which, under all rules of construction in such cases, becomes the measure of the power conferred.
Section 2, same article of the charter, provides as follows t ‘ ‘When any improvements mentioned in the preceding section are to be made, the common council shall cause the recorder to give notice of the same by publishing a notice for fifteen days previous to the undertaking of such improvement, ” etc. ‘ ‘ Such notice must specify with convenient certainty the street or part of street proposed to be improved, or of which the grades proposed to be established or altered, and the kind of improvement to be made.”
Section 3. same article, provides, that “within ten days from the final publication of such notice, the owners of a majority of the property adjacent to such street, or part thereof, as the case may be, may make and file with the recorder a written remonstrance against the proposed improvement, grade or alteration thereof, and thereupon the same shall not then be further proceeded with or made. ”
Section 4, same article, provides, that “if no such remonstrance as provided for in the preceding section be made, the council, at its earliest convenience, within six months from the final publication pf the notice mentioned in section 2 of this article, may establish the proposed grade or alteration thereof, or commence to make the proposed improvement as herein provided.”
These several sections of the charter, taken together, show, to my mind, beyond any doubt, that the common *42council of the city has no authority to improve any of the streets thereof, or to establish or alter the grade of any street, without causing the notice to be published as provided in said section 2, and then the proposed improvement of a street, or establishment or alteration of the grade of a street, may be defeated by remonstrance as provided in said section 3. The claim by the majority of members of the court, that publishing the notice and complying with the other conditions of the charter is only necessary where the cost of the improvement is made chargeable upon the propex’ty adjacent to the street, cannot be maintained. There is no language in the charter which warrants any such construction, nor will such a doctrine logically hold together. The requirement of publication of the notice applies the same to the proposed establishment or alteration of the grade of a street as it does to the improvement of a street, and the cost of the former is not chargeable upon adjacent property in any case.
Section 30, same article, provides in express terms, that “the cost of establishing or altering the grade of any street, or part thereof, shall be paid out of the general fund of the city. ” It follows, therefore, that if the improvement of a street could be made chargeable upon the general fund of the city, the publication of the required notice of the proposed improvement would be necessary in order to confer power upon the common council to undertake such improvement.
Again, section 27, same article, provides when such notice may be dispensed with. It says: “The proceedings authorized by this article for the establishment or alteration of a grade, or the improvement of a street, or a part thereof, may be taken and had without giving the notice prescribed in section 2 of this article, whenever the owner or owners of two-thirds of the adjacent property shall, in writing, petition the council therefor.” When the charter declares expressly in what cases the notice need not be given, ought this court to undertake to say that the notice need not be given in any other case? It will be an unfor*43túnate period in civil affairs when the officers of a public corporation are accorded the right to bind the corporation, except in the manner specifically pointed out by law. But the charter of the city of Bast Portland, I maintain, provides that the cost of the improvement of the streets within its limits, shall be made chargeable upon the adjacent property, and that no part of it can rightfully be paid out of the general fund of the city except in the establishment of the grade, and one other special instance. Section 5, of said article 6 of the charter, provides as follows: “In case the notice be for the improvement of a street, or part thereof, the council may proceed to ascertain and determine the probable cost of making such improvement, and assess upon each lot or part thereof liable therefor its proportionate share of such cost. And if the council shall adjudge that any such lot, or part of lot, would not be benefited by the improvement in the full sum of the cost of making the same upon the half of the street abutting upon such lot, or part of lot, the council shall assess upon such lot, or part of lot, as its proportionate share thereof, such sum only as it shall find such lot, or part of lot, to be benefited by such improvement. ”
Section 18, same article, provides: “Each lot or part thereof within the limits of a proposed street improvement shall be liable for the full costs of making the same upon the half of the street in front of and abutting upon it, and also for a proportionate share of the cost of improving the intersection of two of the streets bounding the block in which such lot or part thereof is situated, unless the council shall have determined that such lot or part thereof will not be benefited by such improvement in the full sum of such costs, in which case such lot or part thereof shall be liable for so much of said cost only as the council shall have found the same to be benefited thereby, and the further cost of making said improvement in excess of the benefits so found, shall be paid from the general fund of the city. ”
These two sections show unmistakably that the cost of the improvement of a street is to be borne by the adjacent *44lot owners, except where the council shall determine that a lot or part thereof will not be benefited by such improvement, in the full sum of the cost of making the same upon the half of the street in front of and abutting upon it; then it shall only be liable for so much thereof as the council has determined that it was benefited by the improvement, “ and the further cost of malting said improvement, in excess of the benefits so found, shall be paid from the general fund of the city. ” '
It would be very remarkable, it seems to me, if the whole cost of a street improvement could be made chargeable against a general fund of the city, when the charter points out where a portion of it can be paid therefrom, and makes the lot owners liable for the payment of the entire residue. The expression of one thing in. such cases is generally supposed to be the exclusion of another.
But again,' section 29, same article, provides: “The common council is authorized to repair any improved street or part thereof, whenever it deems it expedient, and the cost of the same shall be paid out of the street repairing fund, such repairs to be made under the direction of the street commissioner and paid accordingly.” The clear inference from this latter’ section is, that the common council is not authorized to repair an unimproved street. Nor has the common council authority to improve a street which has been once improved. Section 28, article 6 of the charter, is decisive upon that point. Taking these several provisions of the charter together, it is apparent that the legislature intended by the act to provide a specific mode for the improvement of the streets of the city, and to designate the class of persons who should bear the main burden of it; and having prescribed the manner in which it shall be done, no argument need be produced to prove that the common council of the city cannot pursue any other course. Nor did the common council attempt in this case to follow any other mode than that pointed out in the charter, but it failed to comply with the requirements of that instrument, and hence its efforts in that *45direction were a nullity. Its acts were no more binding upon the city than upon the lot owners, whose lots abutted upon the street proposed to be improved. Newbery v. Fox, 87 Minn. 141, is a very similar case to this. There it seems from the facts disclosed in the opinion that the town council of Taylor’s .Falls, a municipal corporation, entered into a contract with one Fox for the grading of a street; that Fox did the work in good faith, and was told by members of the council, before he did the work, that he had a good and valid contract. But it appeared that the contract was entered into without any order having been first made requiring the owners of the real estate, or occupants of such real estate in front or adjacent to where the improvement was made, to make or cause it to be made, or opportunity given them to make it. This failure upon the part of the town council was held fatal to the contract. The court there said, Dickenson, J., that “not only was the party entering into this contract legally chargeable with notice, that by the public charter the authority of the council was thus restricted, but the allegation in the complaint that the plaintiff warned the defendant that the contract was void before he commenced to perform, is admitted by the answrer. The doctrine of ultra vires has, with good reason, been applied with greater strictness to municipal bodies than to private corporations, and, in general, a municipality is not estopped from denying the validity of a. contract made by its officers, when there has been no authority for making such contract.” It was claimed upon the re-hearing that the contract attempted to be made on behalf of the city of East Portland and the parties -who undertook to make the improvement, although void as to the lot owners, was good as between the city and the contractors; and the majority members of the court seem to sanction that theory Such a view is altogether too artificial for my comprehension. How a single agreement can, be valid and binding, and at the same time utterly void, is past my understanding. I am aware that different obligations may arise out of a general transaction which affect *46different parties, and that some of them may bind and others not; but how a proceeding instituted by the agents of a public corporation, acting under mere statutory authority, can bind the corporation when it is irregular and void as to the parties mainly interested in the affair, and upon whom the statute casts the primary liability, I am unable to discover. I think it is a wholesome doctrine that parties who attempt to contract with such agents should be required to ascertain whether or not the agents are authorized to make the contract before proceeding to perform it. That doctrine had the approval of this court in Springfield Milling Co. v. Lane County, 5 Or. 265. The court there said: “This rule may sometimes work a hardship upon a contractor, who, without having considered whether the law has been complied with or not, has performed labor or furnished material for a public corporation, and expects compensation therefor, the same as if it had been done or furnished for a private individual. But nevertheless the authorities hold that a contractor, no less than the officers of a municipal corporation, when dealing in a matter expressly provided by law, must see to it that the law is complied with. Where work is done without authority upon the streets of a city, liability does not follow because the streets may be improved thereby or their use continued. Such continued use constitutes no such evidence of acceptance as to create a liability against the corporation.” The financial condition of our cities is bad enough now, and if their officers are allowed loose rein to engage in enterprises and create obligations against them without regard to restrictions as to the mode of procedure 'to be pursued, irretrievable bankruptcy and ruin will certainly follow.
I think the judgment appealed from should be affirmed.