(dissenting.)—The powers of a municipal corporation to assess property to pay for the improvement of streets being entirely statutory, it must be true, in accordance with well-recognized principles of law, that, when the statute lays down certain prerequisites to the exercise of the power by the municipal authorities, these prerequisites must be jurisdictional, *219so that, until they are complied with, the municipality is without power to act, and any action without- them is void.
Section 1361 of the Code of 1907 requires, as a prerequisite, that the council shall adopt an ordinance or resolution “describing the nature and extent of the work, the general character of the materials to be used, and the location and terminal points thereof, and the streets, avenues, alleys, or other highways, or parts thereof, and shall direct that full details, drawings, plans,” etc., be made, etc. - Section 1363 requires the publication of said ordinance, and section 1364 provides that at the meeting all persons whose property may be affected may appear and object or protest against said improvement, the material to be used, etc., and that, if a majority of the abutting owners object to the proposed improvement, “the improvement shall not take place unless ordered by a two-thirds vote of those elected to the council.” I hold that the adoption of such an ordinance or resolution, and the notice giving the property owners the opportunity to appear and object, are jurisdictional, and without them the entire proceedings are void.
After providing for making out the assessment roll, after the work has been done, giving notice that such roll has been made out, fixing the time for hearing objections, giving notice, etc. (sections 1375-1380), it is provided by section 1381 that the owners may appear “and file * * * any objections or defense to the proposed assessment against said property or to-the amount thereof, and persons who do not file objections in writing or protests against such assessment shall be held to have consented to the same.” This evidently refers only to the “assessment”; that is, to the correctness of it, whether it is properly proportioned among *220the property owners, whether it exceeds the amount allowed by law, etc., and cannot refer to the question as to whether the work shall be done at all or not, on which, as seen, the property owner had a right to be heard before the work was done. The consent therein referred to refers only to those matters, and not to jurisdictional matters, without which the municipality is powerless to act.
This construction of the statutes is not only consonant with recognized principles of construction, but is shown to be correct by the provisions of the statute in regard to appeals to the circuit court.
Section 1393 provides that the introduction of the transcript of proceedings “shall be prima facie evidence of the correctness of such assessment,’7 and that the property and persons are justly indebted, etc. Section 1395 provides that, if by reason of any technical irregularity or defect in the proceedings “the assessment has not been properly made,77 the court may nevertheless make the expenses incurred a charge on the lot, under certain conditions, thus showing clearly that all of these later sections refer only to the proceedings for the assessment and not to the jurisdictional facts.
For these reasons I dissent from the opinion.