It is conceded that the city of Davenport had ample power to improve the public highway and to. assess the cost against the abutting property. It is also conceded that with one exception every requisite step in the proceedings from the initial resolution to the final completion of the improvement and the levy of the special assessment was literally and faithfully complied with. The single exception was that there was omitted.from the contract a provision that the contractors should look exclusively to the special assessments for their compensation. In other words, the city absolutely obligated itself to pay the cost of the work. The indebtedness of the city thus attempted to be created -was beyond the constitutional limit, and for that reason the Supreme Court of Iowa held, in a suit by the property owners, that the’contract was void, and consequently that the special assessments based thereon were likewise void. Allen v. City of Davenport, 107 Iowa, 90, 77 N. W. 532. Subsequently the suit now before us was brought by the city against the property-owners to recover and to have charged upon their property not the invalid assessments, but the actual value of the work and materials employed in the improvement. It was brought under those provisions of an Iowa statute which authorize such a recovery in case of a “defect** in the proceedings, which defeats the validity of the special assessments. Such a suit may be maintained by either the city or the contractor (Burlington v. Quick, 47 Iowa, 222), and it is to be especially *223observed that it proceeds upon the theory that the assessments are void, and do not constitute the measure, or even an evidence, of the amount of recovery.
In substance, the opinion of a majority of this court is that the word “defect” in the Iowa law means a “mere informality or irregularity,” but that a failure to make a valid contract is incurable; that the letting of the improvement on valid contract was a requirement of state statute, and therefore jurisdictional. The controlling question is whether the failure to make a valid contract is a defect within the meaning of that term as employed in the statute authorizing a suit to charge the property with the value of the work and materials after the special assessments have been declared invalid.
It is said in the foregoing opinion that a valid contract is a jurisdictional requirement. Whether a particular step in tax proceedings is jurisdictional, and, if not taken, is therefore beyond the reach of curative process, depends upon a consideration of the powers of the body whose authority is in question. The omissions which the Legislature may cure or authorize to be cured may be, in the absence of such authority, wholly beyond the power of the municipal authorities to remedy. It is not of infrequent occurrence that power to make public improvements and to assess the cost thereof upon property within defined taxing districts is conferred upon cities in very general terms, and that to them is delegated the duty of prescribing by ordinance the details of the procedure. In other cases the Legislature itself prescribes the course to be followed by the municipal authorities. But, whatever detail of procedure the Legislature could have dispensed with in the first instance, it may dispense with by a supplemental or curative law. And so of the power of the municipal authorities. And this suggests the test of a jurisdictional defect and of the validity of a curative proceeding. It may be conceded that the city of Davenport could not, without legislative authority, have dispensed with the letting of the work on valid contract, as that was one of the steps prescribed in the state law. But it is equally true that the making of such a contract is not a jurisdictional feature of the tax proceedings when tested by the power of the Legislature itself.. It cannot be denied that the Legislature had power to authorize street improvements to be made without contract, and to provide that the value thereof be ascertained, and charged upon the abutting property by judicial proceedings. And, if it could have done that in the first instance, it may with equal right empower a city to accomplish the same result after a contract has been annulled and an attempt to levy special assessments thereunder has proved abortive. In Clinton v. Walliker, 98 Iowa, 655, 68 N. W. 431, it was said: “It has many times been held by this court that it is within the power of the Legislature to legalize any defect in proceedings of this kind if the defect or omission or want of compliance is such that it might have been dispensed with by a prior statute.” An interesting illustration of this doctrine may be found in Richman v. Supervisors, 77 Iowa, 513, 42 N. W. 422, 4 L. R. A. 445, 14 Am. *224St. Rep. 308. In this case the supervisors had constructed a levee, and assessed the cost thereof against certain lands supposed to be benefited. The proceedings were held to be void (Richman v. Sup’rs Muscatine Co., 70 Iowa, 627, 26 N. W. 24), because a petition had not been filed, signed by a majority of the residents on adjacent lands as required by law. Afterwards a curative act was passed by the Legislature declaring the levee to be a lawful structure, and authorizing the supervisors to proceed anew to ascertain the amount of the cost, and to reassess the same against the lands in proportion to the benefit received. Appropriate provision was made for a hearing of the landholders. It was held that in the passage of the law originally authorizing the proceedings the filing of a petition might have been omitted, and that, therefore, the curative act and proceedings thereunder were valid.
The requirement of a valid contract may be jurisdictional in the sense that it is mandatory upon the city authorities — in the sense that, being prescribed by the state law,’ the city cannot lawfully dispense with it; but it is not jurisdictional where the question is that of the power of the Legislature and the interpretation of a state statute. The authority for the proceedings before us on this appeal is found in an act of the Legislature and is not dependent upon a city ordinance. And the real question is whether the Legislature intended to include the omission to make a valid contrac! within the term “defect” as used in the curative statute. That that body was not averse to intrusting such comprehensive power to municipal authorities is shown by another law of Iowa (section 834, McClain’s Code), whereby certain cities are empowered to even order the work anew and relevy the special assessments where those originally levied are declared invalid by reason of an “alleged nonconformity with any law.” A curative statute may, in the absence of constitutional inhibition, be retrospective or it may be prospective in its operation, and thus supplement and accompany existing laws on the subject of municipal improvements. The law under consideration is of the latter character. It was designed to prevent, the escape of property from liability for its just and equitable proportion of the cost of a public improvement which a city had the general power to make and did make in good faith.
As was said in Burlington v. Quick, 47 Iowa, 222:
“The statute Is broad, equitable, and remedial, and should not receive a narrow or strained construction. On the contrary, it should be so construed as to carry out the object, intent, and spirit the General Assembly evidently had in view in its enactment. If the improvement is such as the city is authorized to make according to the true intent of the law, then all errors and irregularities should be disregarded, and a recovery permitted for the proper proportion of the value of the work from the abutting property owner.”
And as was said in Cooley on Taxation, 309, note:
“The cases under the Iowa statute go farther, we think, than any others in sanctioning broad powers in the Legislature to cure defects.”
I am unable to perceive any sufficient reason for the restricted meaning given to the term “defect,” or for the narrow interpretation of the Iowa statute under which this suit was instituted. It *225is true that a state law required the letting of the work on contract. But it is also true that the same law prescribed that the contract should be let (a) upon sealed proposals, (b) after 10 days’ public notice, (c) in at least two newspapers, (d) the notice to state as nearly as practicable the extent of the work, (e) the kind of materials, (f) when the work shall be done, (g) and when the proposals will be acted on. Logically, the opinion of the court leads to the conclusion that a failure to strictly comply with any one of these requirements would place the assessments thereby rendered invalid beyond the reach of the curative statute. To this I cannot assent.
In Coggeshall v. Des Moines, 78 Iowa, 235, 41 N. W. 617, 42 N. W. 650, the special assessments were declared invalid because the notice inviting proposals did not specify the kind or character of the materials with which the improvement should be made, the recital being that the pavement was to be a modern one, and then in use In Osburn v. Lyons, 104 Iowa, 160, 73 N. W. 650, the special assessments were held to be invalid for the reason that the contract was practically let without competition, there having been a substantial change in the time fixed in the published notice for the completion of the work. In each of these cases the Supreme Court of Iowa, without, however, determining the existence of any remaining liability of the property for the value of the improvements, expressly framed its decision so that such liability, if any, should not be said to have been adjudicated.
Gill v. Patton, 118 Iowa, 88, 91 N. W. 904. In this case an inferior court of competent jurisdiction had held the original assessments to be void because the notice for proposals did not state when the work should be done, or when the proposals would be acted upon. Thereafter the city council reassessed the cost of the improvement upon the abutting property under section 834, McClain’s Code. The reassessment was upheld by the Supreme Court of that state. There is a striking analogy between this case and the one at bar. There was a failure to comply with statutory requirements. The assessments were adjudged to be void. Nevertheless reassessments for the same work by the city council were sustained under a statute which, in my opinion, is not broader or more liberal in its scope than the one under consideration.
It is also held in the foregoing opinion that the decree in the original suit brought by the property owners, and which resulted in the annulment of the contract and the special assessments, is a bar to the suit of the city to have the property charged with the value of the improvement; that the city should have presented its claim for this relief in the original suit. This conclusion seems to be directly contrary to an opinion of the Supreme Court of Iowa in this very litigation. After the original decision of that court invalidating the assessments, the city attempted in the trial court to ingraft on the proceedings the cause of action now before us. On the second appeal the Supreme Court reversed an order of the trial court allowing it to do so. Allen v. Davenport, 115 Iowa, 21, 87 N. W. 743. Among the reasons assigned, the Supreme Court *226said that the cause of action was not in existence when the original suit in equity was submitted; that “the remedy was in a new action.” The new action was thereupon brought, but this court now says it was barred by the decree in the original suit. In my opinion, the settled law is that a judgment of a court declaring special assessments void is not a bar, and does not prevent a city from employing its statutory power of reassessment. The right to reassess arises upon the ascertainment or judicial determination of the invalidity of the first proceedings. It does not exist before. In Gill v. Patton, supra, the court said, “And the prior adjudication 'in no way affected the reassessment.” The same doctrine was recognized in Osburn v. Lyons and Coggeshall v. Des Moines, supra. In- the latter case certain assessments were declared void by the Supreme Court of Iowa because the city council did not determine the character of' the work in advance of the advertisement for proposals — a failure to observe a statutory requirement, as in this case. The city council reassessed the cost of the improvement. The new assessments came before the same court in Tuttle v. Polk, 84 Iowa, 12, 50 N. W. 38. They were upheld, and the court, in speaking of the previous judicial decisions, said: “It will thus be seen that there can be no final adjudication so long as the Legislature, by proper enactment, obviates the difficulty.” In Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443, an assessment was held void as being imposed in violation of the Constitution of the United States. But the court said:
“It should be observed that the decree did not relieve the abutting property from liability for such amount as could be properly assessed against it. Its legal effect, as we now adjudge, was only to prevent the enforcement of the particular assessment in question. It left the village, in its discretion, to take such steps as were within its power to take, either under existing statutes or under any authority that might thereafter be conferred upon it, to make a new assessment upon the plaintiff’s abutting property for so much of the expense of opening the street as was found upon due and proper inquiry to be equal to the special benefits accruing to the property.”
This language was referred to with approval in French v. Barber Asphalt Paving Company, 181 U. S. 324-344, 21 Sup. Ct. 625, 45 L. Ed. 879.
In Mills v. Charleton, 29 Wis. 400, 9 Am. Rep. 578, the court said:
“The reassessment of a tax, the proceedings for the collection of which have once failed, is not a reopening of the judgment by which such former proceedings were declared invalid. Such judgment remains a perpetual stay of the proceedings to enforce the first assessment, but it only affects that assessment, and does not operate upon new proceedings subsequently taken to reassess.”
In Dillon on Municipal Corporations, section 814 (652) it is said:
“A reassessment under legislative authority may be made notwithstanding a final decree of a court enjoining the municipal authorities from collecting the first or original assessment.”
The suit before us is essentially a proceeding in reassessment. It is none the less so because the machinery of a court is employed for the ascertainment of the amount of the charge. The city had general power to cause the highway to be graded, curbed, and *227paved. Under the law appellants’ property was liable for the cost thereof. The improvement was made and the abutting property consequently benefited. The original assessments against the property were declared invalid, not because of want of power in the city, but because of a defective execution of its power; no more defective, however, than in the cases of Norwood v. Baker and Coggeshall v. Des Moines, supra. This condition afforded a proper basis for reassessment. To make the reassessment effective, the city instituted a suit, especially provided by the law for the purpose, for the ascertainment of the actual value of the improvement, and that the property benefited be charged with the amount so judicially ascertained.
The Supreme Court of Iowa has said that the cause of action now before us was not in existence when the original suit in equity of the property owners was submitted; that a new suit was the appropriate remedy for its enforcement. How could the city have properly presented this cause of action in that suit? It claimed that its proceedings were regular. The trial court so decided, but they were held invalid on appeal to the Supreme Court. When tax proceedings are attacked in court, must a city, in order to preserve its statutory power of reassessment, at once confess their invalidity? I do not think so.
Moreover, I am unable to escape the conviction that serious error lies in the suggestion of this court that the decree in the first case forever bars the city from asserting any further claim on account of the improvement, and from adopting any further proceedings in respect thereof. I believe it to be beyond the power of this court to accomplish such result.
In Mills v. Charleton, supra, the court, in speaking of the taxing power in connection with remedial and curative statutes, very properly said:
“It moves constantly forward to its object until that is accomplished, and, if turned aside by any obstacles or impediments, may return again and again to the same tax or assessment, until, the way being clear, the tax is paid or the assessment collected. Such is the force of this power, or of the sovereign body which exercises it, that it may remove all obstacles, and never cease to act until it has attained the appointed end for which it was delegated.”
As was observed by Chief Justice Chase (Bank v. Fenno, 8 Walk 548, 19 L. Fd. 482), “The judicial cannot prescribe to the legislative departments of the government limitations upon the exercise of its acknowledged powers.”