The opinion
Rehearing denied February 26, 1918.
On Petition for Rehearing. Denied. ■
Department 1.
Mr. Justice Burnett
delivered the opinion of the court.
In his petition for rehearing the plaintiff lays much stress upon the case of Murray v. La Grande, 76 Or. *515 598 ( 149 Pac. 1019 ), as being in direct conflict with the former opinion in the instant case. In prescribing the formula for street improvements the La Grande charter under which the Murray proceedings were had states in substance that when an improvement is proposed a committee of the council shall examine the property and make a report as to its valuation and extent and of the benefits to be derived thereby on account of the proposed improvement.
After receiving the report and before making any levy of taxes on plaintiff for the improvement the council must cause notice to be given in terms prescribed by the charter, giving sundry details not necessary here to mention, after which follows this language:
“After a compliance with this subdivision the council shall be deemed to have acquired jurisdiction to order the making of such improvements.”
This is the only manner and time prescribed by the La Grande charter in which jurisdiction may be acquired. It is also said in the same section:
“If any assessment is set aside by order of any court the council may cause a new one to be made in like manner for the samé purpose for the collection of the amount so assessed.”
It will be noted that in the La Grande charter there is but one time and place in the process where the city may obtain jurisdiction; and the power of correction vested in the council does not include an amendment to cure the defect in the proceedings by which the acquisition of jurisdiction was attempted. It seems, therefore, that one effort to acquire jurisdiction would exhaust the prerogative of the council in that particular proceeding. It was conceded in that case that the City of La Grande had not done the things prescribed by its charter as the necessary foundation of jurisdiction.
*516 4, 5.' The authority of the City of Portland under its charter is much more extensive and far-reaching. As pointed out in the former opinion, Section 400 of the Portland Charter empowers the municipality to correct all manner of errors and irregularities whether they be “jurisdictional or otherwise. ’ ’ The distinction between the two charters is found in the fact that in that of La Grande there is provided but one point in the procedure where the city can acquire jurisdiction for any purpose and beyond which it cannot retrace its steps in its effort to amend its errors; while that of Portland enables the municipality to go back and begin again even to rectify any lack of authority not excepting the absence of jurisdiction itself. In brief the Portland Charter permits correction of jurisdictional defects while that of La Grande under consideration in the Murray case did not.
So it is a possible event that acting either directly or through the agency of contractors the city may have laid down a pavement as stated in the complaint herein before discovering its mistake in supposing it had acquired authority to do so. Yet it is not powerless to escape the consequences of such a blunder although the effort to extricate itself may involve the exercise of the taxing power. The complaint does not differentiate the plaintiff’s grievance from such circumstances. He argues that a mere volunteer might pave a street and the city could pay for it, but his complaint does not state such a case. That question is not presented on the record before us and we make no intimation what the decision should be if the city, as an act of its sovereignty, should adopt some completed but unauthorized work of the kind which it deemed of real public benefit and as an exercise of its taxing prerogative should essay to lay a special impost with which to raise funds *517 to pay for it. Under the present Portland charter it behooves the freeholder to be vigilant in respect to street improvements in his vicinity and resist them in their incipiency if he has cause for doing so. He cannot safely wait until á pavement is installed and then for the first time begin to object; for that is one of the things the city can put in the street and make him pay for. It may err in its effort to acquire authority over the adjacent property in the beginning but it seems to be a case of “never too late to mend,” and the municipality may return again and again to the task until it reaches the desired result, always provided that somewhere in the process the freeholder has an opportunity to be heard before his property is taken for payment of the tax. The petition for rehearing is overruled.
Reversed. Rehearing Overruled.
Mr. Chief Justice McBride, Mr. Justice Benson and Mr. Justice Harris concur.