*220 On Rehearing.
Black, J.— A question is made on this motion which was not before considered, because the briefs presenting it were not then before us. The verdict of the jury shows that a number of parcels of land within the assessment district were not charged with benefits but the verdict as to each is, “benefit nothing;” and because these parcels were not assessed with same amount, it is urged there is fatal error on the face of the record,
The city charter provides that the common council “ shall determine and prescribe the limits within which private property shall be deemed benefited by the proposed improvement, and be assessed and charged to pay compensation therefor.” The charter makes it the duty of the jury to assess the damages for the property taken. To pay these damages the jury must then assess against the city the benefit to the public generally, “and against the several lots and parcels of private property deemed benefited, as determined according to the last section, by the proposed improvement, the balance of such compensation; each lot or parcel of ground to be assessed with an amount bearing the same ratio to such balance as the benefit to each lot or parcel bears to the whole benefit, to all the private property assessed. * * * The verdict of the jury shall be signed by each juror and. delivered to the mayor, and contain a correct description of each lot or parcel of property to be taken, the names of the owners or claimants, and the value thereof, and also the amount assessed against the city, together with a correct description of each lot or parcel of private property assessed, the amount assessed against the same, and the names of the owners thereof.” Laws, 1875, p. 245, sec. 6.
The argument is, that the finding of the council is a judicial determination that all property within the *221defined limits is benefited, and that the jury has nothing to do bnt apportion these benefits. This we think is a very technical construction of the words “ determine and prescribe the limits within which private property shall be deemed benefited.” The law must be taken in its entirety. The council has the power and must define the assessment district. The council does not nor can it assess damages or benefits. These questions are left to the jury. The damages for property taken being fixed, and the benefits to the public at large deducted, the jury have the amount to be raised by assessment against private property. Now how can the rule of apportionment declared by the statute be applied until the actual benefits are assessed both as to all the property and as to each parcel? If the jurors must determine the benefits, then it is for them to say whether a particular lot is benefited at all or not. The council must determine the boundaries of the benefit district, but the error of the argument made for the appellants is in assuming that all property in the district must be assessed. Whether it must all be assessed depends upon the fact whether it is all benefited, and that is a question for the jury.
This case is not to be confounded with those cases of assessments for local improvements where the assessment is made according to front feet. Such was the ease in People v. Lynch, 51 Cal. 15. Nor with those cases where the assessment is to be made according to the value of the property fronting on the street.
We see nothing which calls for a rehearing of this case, and the motion is overruled.
Sherwood, J., absent; the other judges concur.