(dissenting).
I dissent. I agree that the contract was void, among other reasons because it necessarily involved municipal indebtedness in excess of the limit fixed by law. That the largest part of the cost of the improvement was to have been defrayed by local assessments did not prevent the necessity of paying out of general funds the part actually chargeable to the city. This is not a case where a contract could be valid as to part and invalid as to such illegal excess. It must have been performed as a whole, or not at all. The paving for which the city must have paid out of public moneys was an integral and essential part of the work. The contemplated improvement would have been practically impossible and unreasonable, unless made as contracted for, including the part for which the city was required to pay.
The present difference of opinion in this court concerns the curative effect of the reassessment proceedings. In previous decisions this court has gone to an extreme — and, it seems to me, a dangerous extreme — in holding that a contract which has been so illegally executed. that the assessment to pay for it is necessarily void may become the basis of a valid reassessment, and that the curative effect of the reassessment extends to “defects, jurisdictional or otherwise.” The immediate dissent depends upon what “otherwise” means in this connection.
To my mind the curative effect of reassessment proceedings should be restricted to defects in the execution of a contract, which contract, within the prescribed limits of indebtedness, the city is authorized to execute, but which it has failed to execute in the manner prescribed by law. Such a contract is ultra vires in a secondary and restricted sense only, and may generally be validated by performance according to its terms. The rule is otherwise, however, where the contract is forbidden. This contract was forbidden, because it necessarily exceeded the prescribed limit of indebtedness, and might not be valid in one part and invalid as to another part. It pushes the doctrine of affirmance by reassessment altogether too far to hold that such a contract may be made good by going through the motions of assessment a second time. The result of any other view must be a partial repeal of the provisions limiting municipal indebtedness. Such implied re*493peals are opposed to the normal rules of construction and to plain dictates of public policy.
On January 24, 1908, the following opinion was filed:
PER CURIAM.The question upon which a reargument of this cause was granted, viz., “whether in view of section 34, c. 6, of the charter of Mankato, the lien of the assessment in question is superior to the title and rights of relators; they being purchasers of the property for a valuable consideration before the levy of the assessment and without notice of these proceedings,” though covered by the assignments of error and referred to in the brief of relators, was not impressed upon the court as at all important and was not considered in the former opinion. Attention was called to the question and its importance emphasized on the application for a rehearing, and because it had not been considered and disposed of, a reargument was granted.
A majority of the court are of the opinion that the assessment lien is paramount to the rights of relators, and the former opinion is adhered to. Morey v. City of Duluth, 75 Minn. 221; Hamilton, Special Assessments, 708; City of Seattle v. Kelleher, 195 U. S. 351.