The opinion of the court was delivered by
Reed, J.The argument of this cause was confined to the first reason, namely, that the. lands of the prosecutors were not included within the list of lots reported in the preliminary assessment as benefited.
*582This fact is admitted in the case. The counsel for the defendants endeavors to evade the consequences which, upon the admission of this fact, would seem to result from this departure from the city charter. He directs his attacks against the preliminary report.
He contends that there is legally no preliminary report. His argument is that, there being no preliminary report, the commissioners were left free to assess all land which, in their judgment, was benefited.
It is admitted that a report was made,September 4th, 1873, in which the land to be benefited by this improvement was .specifically stated. It is true that the commissioners adopted a map previously existing, but it does not appear that they adopted any previous schedule of lots upon that map as those supposed to be benefited, and a former list of the amounts of such benefits. I do not think that the objection taken to the preliminary report, upon the ground that it was not the exercise of an independent judgment of the commissioners who made it, but a mere adoption of another’s work, is tenable. Nor do I see that any of the other objections urged against it, so far as that report has a bearing upon the validity of the final assessment, are valid.
But, suppose the preliminary report was defective. Can the defendants allow it to stand unreversed, and yet claim that, because of its invalidity, persons who, by reason of not being named in said report, had no notice of the preliminary assessment and no power to file their remonstrances against the improvement, can now be assessed for the work ? I think that the defendants are not in a position to attack the preliminary report, for the purpose of supporting the present assessment. The object of the scheme was by an assessment in limine, and notice thereof to warn every one who would be affected by the execution of the public improvement. It empowered a two-third ownership of such persons to defeat the project by a remonstrance.
The final assessment is based upon this assessment. The lands to be assessed are the lands which the preliminary *583report shows as benefited. The existence of the first seems the foundation of the second assessment. Without the first} I do not perceive in what way the second can be supported.
After the work was done, no land-owner would be permitted to attack the first ássessment for the purpose of defeating the second.
Neither can the municipality attack it, for if it should be vacated, all the proceedings built upon it must fall with it. Admitting that the scheme provided by the charter is as I have heretofore displayed it, it follows that the preliminary assessment is an essential part of it. It is to the land-owner assessed the most important part of it.
It warns him of the fact that he is to be assessed, and the amount for which he is to be assessed. It gives him a position where he can exert his vote and his influence in securing the defeat of the proposed improvement, should it be unsatisfactory.
So entirely is it a part of the scheme that, should it, as contended by the counsel, be fundamentally defective, as opposed to constitutional principles, it must result in defeating the entire procedure.
From my examination of the sections, I have found the scheme to be as already stated. It is, in my judgment,-impossible to separate the two sections, 19 and 20, and support the present assessment by a construction of the latter section alone.
Although the commissioners were appointed by this court, they were obliged to make the assessment, in accordance with the method pointed out by the statute by virtue of which the improvement was made.
The assessment should be set aside, with costs.