I concur in the decision and in the opinion of Justice Wilbur, except as to the conclusion that the public lands within the exterior limits of the assessment district were not a part of the district. The assessment district was described by its exterior boundaries followed by an exception reading, "excluding . . . any and all public *Page 524 property within the exterior boundaries of the district." It is plain that the fact that lands are public lands, a park, for example, does not affect the matter of their being benefited by the contemplated improvement. The improvement may well benefit the land, although it is public. The statute requires that all lands which will be benefited shall be included within the district, and it necessarily follows, in my judgment, that the city council cannot exclude from the assessment district all lands of a certain character such as lands owned by the public, when such lands are within the exterior limits of the district benefited, and the character or attribute because of which they are attempted to be excluded is one which does not affect the matter of their being benefited or not.
It does not follow, however, that the attempt to exclude such lands from the assessment district invalidates the assessment. The plaintiff was in no wise prejudiced thereby. Under section 9 of the act, it was discretionary with the city council to assess or not to assess public lands within the district. The attempt of the city council to exclude the lands from the district is but an attempt to exercise this discretion at the wrong point in the proceedings. The result, however, is the same as if it had been exercised when it should have been, at the time of making the assessment.
Rehearing denied.
All the Justices concurred.