(dissenting).— Section 824 of the Code provides that “ all objections to errors, irregularities or inequalities in the making of special assessments or in any of the prior proceedings or notices not made before the city council at the time and manner provided for shall be waived except where fraud is shown.” Section 823 provides for hearing upon notice before the city council of all objections to proposed assessments in account of errors, irregularities, or inequalities in the prior proceedings leading up to the assessment. Of course, if the city council had no jurisdiction by reason of failure to take the necessary steps to enable it to act at all in the matter of making assessments, an independent action in equity would lie to enjoin the collection of the assessments. But if, having jurisdiction, there be simply an error or defect in the making of the assessment or in the prior proceedings or notices, then resort must be had to the tribunal created for the purpose of hear*603ing these objections, to wit, the city council for the correction thereof. The notice which the majority hold was defective was not such an one as is required to give the council jurisdiction over the matter of making the improvement. The notice was of proposals for bids, and it is not a case of no notice, but of a defective one. It was not essential to the jurisdiction of the board, but an incidental notice to those who proposed to bid for the work. Failure to give it would, of course, be a ground of objection under section 823 of the Code. But, even if jurisdictional, it is not a case of no notice, but of a defective one, objection to which cannot be made in a collateral proceeding. This matter is ruled by Owens v. City, 127 Iowa, 469, and cases therein cited. The majority, as I think, fail to distinguish between defects which are so fundamental as to preclude the tribunal of the right to act at all and those which are not given for jurisdictional purpose, but to secure some benefit to the property owner, as in this case a notice of proposal for bids. They also fail to distinguish, as I think? between eases of no notice and where there has been a defective one. It is so well settled as hardly to require the citation of authorities that, even where notice is necessary to give jurisdiction, defects therein or in the time or manner of service cannot be challenged in a collateral proceeding. But see cases annotated under sections section 3519 of the Code.
The city council was required to pass upon the sufficiency of the notice of proposal for bids, and, having such notice before it and having treated the same as sufficient, its decision thereon cannot, under well-settled rules, be collaterally attacked; but should be made a ground of objection under section 823 of the Code. ' That an independent action in equity is a collateral attack is not open as I believe to debate. But see Owens v. City, supra. It is so well settled that in matters of taxation the Legislature may create a tribunal for the settlement of all questions growing out of errors, defects, or irregularities in the proceedings leading *604up to the assessment, and that, when it does so, the jurisdiction thus conferred is exclusive, unless otherwise expressed. As said in Macklot v. City, 17 Iowa, 387: “ When a statute provides a tribunal for the correction of errors by a proceeding in the nature of an appeal to it, such jurisdiction is exclusive.” This rule, announced in the year 1864, has never been departed from, but has been reaffirmed in the following, among other, cases: Newton v. McKay, 130 Iowa, 596; Collins v. City, 118 Iowa, 35; Stevens v. Carroll, 130 Iowa, 463; Crawford v. Polk County, 112 Iowa, 118, and eases cited. None of the cases cited by the majority run counter to these views as I understand them. Coggeshall v. City, 78 Iowa, 235, was decided prior to the adoption of the statute which I have quoted in this dissent, creating a tribunal for the settlement of such questions. And in that case the city council did not pursue the jurisdictional steps necessary to the work, in that it did not in advance of notice determine the kind of pavement it should use. As said in the opinion, the defect was not a mere irregularity, but was jurisdictional, in that the city council could enter into .no contract until it had first determined the character of the work and the material to be used therein. But it is enough to say that when that case was decided, there was no. statute creating a special tribunal for the correction of errors and defects. The same observation is applicable to Polk v. McCartney, 104 Iowa, 567; C., R. I. & P. R. R. v. City, 112 Iowa, 300, is in no way in point, nor is C., M. & St. P. R. v. Phillips, 111 Iowa, 377. In the latter case it is expressly stated that the decision is bottomed upon the law as it stood prior to the adoption of the Code of 1897, which introduced for the first time the statute upon which this dissent is based. Smith v. Peterson, 123 Iowa, 672, contains nothing in point, and Zalesky v. City, 118 Iowa, 714, announces nothing contrary to the views I have expressed. That was a sidewalk case, and was decided upon grounds in no manner applicable to this case. In Callaher *605v. Garland, 126 Iowa, 206, the city council attempted to assess the cost of grading, against abutting property owners. This it had no jurisdiction or authority to do: The rule for which I contend is not one peculiar to this jurisdiction, but is the prevailing one everywhere. See, Lennon v. Mayor, 55 N. Y. 363, and cases cited; Eno v. Mayor, 68 N. Y. 214; German Sv. v. Ramish, 13 Cal. 120 (69 Pac. 89, 70 Pac. 1067) ; Ferguson v. Stamford, 60 Conn. 432 (22 Atl. 782) ; Peoria v. Kidder, 26 Ill. 351; De Puy v. Wabash, 133 Ind. 336 (52 N. E. 1016) ; Sumner v. Milford, 214 Ill. 388 (73 N. E. 742) ; Newman v. Emporia, 41 Kan. 583 (21 Pac. 593) ; Atkinson v. Newton, 169 Mass. 240 (47 N. E. 1029) ; Nelson v. Saginaw, 106 Mich. 659 (64 N. W. 499) ; Kelly v. Minneapolis, 57 Minn. 294 (59 N. W. 304, 26 L. R. A. 92, 47 Am. St. Rep. 605).
The statute I have quoted was undoubtedly enacted to forbid just such attacks as have been made upon this assessment. The defect was not jurisdictional. There is no charge or clairn of fraud. There was a notice, but the service thereof was simply defective, and plaintiff should have made his objection to the error or defect in the notice before the city council as provided in section 823 of the Code. Not háving done so, he waived the defect. So says section 824 of the Code, and there is no claim that the Legislature was not acting within its power in passing the act.. In my opinion the majority have either consciously or unconsciously overruled many of the cases I have cited without giving them the consideration they deserve.
For these reasons, I believe the decree should be reversed.